OCTOBER 1979

The following cases were Directed for Review during the month of October:
Secretary of Labor, MSHA v. Freeman United Coal Mining Co.,
VINC 78-395-P; (Judge Cook, August 30, 1979)
Secretary of Labor, MSHA v. Pacer Corporation, DENV 79-257-PM;
(Judge Michels, August 28, 1979)
Secretary of Labor, MSHA v. Davis Coal Company, HOPE 79-195-P, etc.;
(Judge Moore, September 21, 1979)
Secretary of Labor, MSHA v. Co-Op Mining Company, DENV 79-1-P;
(Judge Koutras, October 16, 1979)
Secretary of Labor, MSHA v. Sewell Coal Company, WEVA 79-31;
(Judge Kennedy, September 20, 1979)
Secretary of Labor, on behalf of Arnold J. Sparks, Jr., v. Allied
Chemical Corporation, WEVA 79-148-D; (Judge Kennedy, September 27, 1979)
Review was Denied in the following cases during the month of October:
Secretary of Labor, MSHA v. Swope Coal Company, HOPE 78-644-P, etc.;
(Judge Stewart, August 27, 1979)
Local Union No. 1124, UMWA v. Old Ben Coal Company, LAKE 79-197-C,
Petition for Interlocutory Review.

Westmoreland Coal Company v. Secretary of Labor, MSHA, HOPE 78-236
was remanded to an administrative law judge from the U.S. Court of
Appeals for the Fourth Circuit.

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

October 9, 1979
PITTSBURGH COAL COMPANY (DIVISION OF
CONSOLIDATION COAL COMPANY)
Docket No. PITT 76-123-P
IBMA No. 77-6

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

This appeal was pending before the Interior Department Board of
Mine Operations Appeals as of March 8, 1978. Accordingly, it is before
the Commission for decision. 30 U.S.C.A. §961 (1978).
In its petition for assessment of civil penalty filed under section
109(a) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.
§801 et ~· (1976) (amended 1977) ["the Act"], the Secretary alleged
that Pittsburgh Coal Company, a division of Consolidation Coal Company,
violated 30 CFR 75.1405. That mandatory standard requires, in pertinent
part, that "All haulage equipment •.. shall be provided with automatic
couplers which couple by impact and uncouple without the necessity of
persons going between the ends of such equipment." The administrative
law judge found the company had violated the regulation and assessed a
civil penalty of $5,000. The company appealed. For the reasons set
forth below, we affirm the judge's decision.
On April 11, 1974, a fatal accident occurred at the company's
Monitor No. 4 Mine. An employee of the company was fatally injured
attempting to uncouple two haulage cars. At the mine, clearance differed
along the two sides of the track. One side, the "tight side," had a
clearance of 3 feet. The other side, the "wide side," had a clearance
of 6 feet. All haulage cars had disconnect levers on the wide side. In
addition, some, including the car the victim was attempting to uncouple,
also had levers on the tight side. The parties stipulated that all of
the uncoupling devices on the wide side were operable, but that some of
the levers on the tight side were inoperable. When the victim attempted
to uncouple the cars from the tight side, and the uncoupling device did
not work, the victim reached between the ends of the cars to manually
disconnect them. Unaware that the victim was between the cars, the
locomotive operator started the train and the victim was crushed.

79-10-4
1468

The company argues that by equipping its mine cars with operable
uncoupling devices on the wide side, it complied with the standard. We
disagree. The purpose of the standard is to prevent miners who must
couple and uncouple haulage equipment from subjecting themselves to
injury by going between the ends of haulage cars. This purpose is best
effectuated by requiring that all uncoupling devices be maintained in
operable condition. An inoperable device might induce a miner to go
between the ends of the haulage equipment to attempt manual uncoupling.
Here, a miner died ·going between the ends of the haulage cars after
unsuccessfully attempting to use an inoperable device. The standard is
designed to prevent exactly this type of accident. The judge properly
interpreted 30 CFR 75.1405, and his finding of a violation is affirmed.
The company also contests the penalty assessed as excessive. We
have reviewed the company's arguments in this regard and find them
without merit. We conclude that the penalty assessed for the violation
was reasonable and in accord with the statutory criteria specified in
the Act.
Accordingly, the decision of the judge is affirmed.

Jer~e

R. Waldie, Chairman

'A. E. Lawson, Commissioner

~\\~~~
Marian Pe~rlman NeaSe;'cornmissioner

)

1469

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

20006

October 19, 1979
SOUTHERN OHIO COAL CO.
Docket No. VINC 79-98

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

DECISION
This case is before the Commission on interlocutory review. On
June 19, 1979, we directed review of an order of continuance entered by
the administrative law judge. We reverse and remand for further proceedings consistent with this opinion.
On December 5, 1978, the Secretary of Labor issued a citation under
section 104(a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §801 et~· (1978) ["the 1977 Act"] to Southern Ohio Coal Company. The citation alleged that Southern Ohio had driven the 008
Section of its Raccoon No. 3 Mine adjacent to the abandoned Lawler No. 7
Mine in· a manner that violated 30 CFR §75.1701. ll Later that same day,
the Secretary issued to Southern Ohio a withdrawal order under section
104(b) when it allegedly failed to abate the violation alleged in the
citation. ];/ Southern Ohio then closed the 008 Section in accordance
with the order.
Southern Ohio sought review of both the citation and the withdrawal
order. An administrative law judge held a pre-hearing conference with
Southern Ohio and the Secretary on January 11, 1979. At the conference,
1/
That section requires in part the drilling and the maintaining of a
borehole or boreholes" in advance of a working face that approaches (1)
within 200 feet of an abandoned area of the mine that cannot be inspected and may contain dangerous accumulations of water or gas, or (2)
within 200 feet of any workings of an adjacent mine.
2/
Section 104(b) provides for the issuance of a withdrawal order
during a follow-up inspection of a mine where: (1) the violation described
in the citation has not been totally abated within the time period
originally fixed, and (2) the inspector finds that the abatement time
should not be further extended.
0

79-10-10
1470

the parties st.ipulated that Dr. Kelvin K. Wu, a .technical expert from
the Secretary's Mine Safety and Health Administration, would conduct an
on-site evaluation of Southern Ohio's Raccoon Mine, and that he would
report his findings to Southern Ohio, the United Mine Workers, and
the judge. On February 15, 1979, Dr. Wu submitted his report. The
report stated that there was "no hard evidence" to indicate that the
Raccoon Mine and the Lawler Mine were within 200 feet of each other.
Dr. Wu's report also stated, however, that the 008 Section of the Raccoon
Mine had a water problem and that, with respect to the water's source,
the Lawler Mine was the "prime suspect".
On March 30, 1979, a status hearing was held. The hearing opened
with the judge's recitation of the "understanding" reached during a
preceding two hour off-the-record discussion before the judge. The
judge stated that by a certain date Dr. Wu was to submit his proposal
for the taking of core samples at the Raccoon Mine in order to determine
the extent of the saturation of the coal in the 008 Section. The judge
further stated that after Dr. Wu submitted his proposal, the parties
would stipulate to a method for conducting the core sample testing, or
that, in the alternative, Southern Ohio was to submit a counter-proposal.
In the latter event, the judge stated that he would then determine the
method for conducting the test. Following the judge's recitation of the
agreement, counsel for both Southern Ohio and the Secretary stated that
they understood its terms and that they had no objection to it. At the
conclusion of the hearing, the judge ordered that the terms of the
agreement were to be carried out by a designated time.
In early April of 1979, Dr. Wu submitted his proposal for the
taking of the core samples. Dr. Wu proposed the horizontal drilling of
four 60-foot probe holes into the working face of the No. 3 Entry of the
008 Section and one 60-foot probe hole into the right rib of that entry.
In response to Dr. Wu's proposal, Southern Ohio notified the judge that
it "elected not to undertake the drilling of [the probe holes]."
Reiterating its earlier expressed views, Southern Ohio stated that the
results of the core sample testing would be irrelevant to the issue of
whether the two mines were within 200 feet of each other and that it had
already provided substantial evidence that it was not in violation of
the standard.
On April 26, 1979, the judge issued an order finding that Southern
Ohio had "chosen to dishonor its conunitment to cooperate in the development of a plan to test for saturation core samples". The judge continued the case until Southern Ohio "cures its deliquency". Southern Ohio

1471

then sought interlocutory review of this order. We granted Southern
Ohio's petition for interlocutory review to determine whether the judge
erred in using an indefinite continuance as a sanction for a failure to
comply with a discovery commitment. ]_/
The last sentence of section lOS(d) of the 1977 Act requires the
Commission to "take whatever action is necessary to expedite proceedings
for hearing appeals of orders issued under section. 104." This provision
evinces a congressional concern that contests of withdrawal orders be
expeditiously heard, at least where, as here, the underlying violation
has not been abated. !!._/ The congressional concern with prompt disposition
of withdrawal order contests under the 1977 Act makes inappropriate the
use of a continuance as a sanction here. We therefore conclude that the
judge erred. In so concluding, however, we hold only that an indefinite
continuance is not an appropriate sanction in contests of withdrawal
orders. We leave to the judge the question of whether any other sanction
may be imposed.
Accordingly, the judge's order of April 26, 1979, is reversed and
the case is remanded for further proceedings consistent with this
opinion.

r

A.

E. Lawson, Commissioner

~~'~bw%@
Marian Pear man rease, Commissioner
~~hjr

We do not at this time pass upon the
issues raised by the
parties.
!!_/
See, also, S. Rep. No. 95-181, 95th Cong., 1st Sess. 48 (1977)
("Committee strongly believes that it is imperative that the Commission
strenously avoid unnecessary delay"), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative
History of Federal Mine Safety and Health Act of 1977, at 636 (1978).

1472

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

20006

October 23, 1979
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA)
v.

Docket No. MORG 75-393

EASTERN ASSOCIATED COAL
CORPORATION

IBHA No. 76-55
DECISION

This appeal was pending before the Interior Department Board of
Mine Operations Appeals as of March 8, 1978. Accordingly, it is before
the Commission for disposition. 30 U.S.C.A. §961 (1978).
On May 15, 1975, a Hine Enforcement and Safety Administration inspector observed a track-mounted, self-propelled personnel carrier (a
jitney) with an inoperable parking brake. The condition violated 30 CFR
75.1403. The inspector issued a notice of violation and gave the
company until the following morning to abate. The abatement period was
then extended to Hay 20, 1975, based upon the fact that the company had
expressed a need for more time to repair the brake and had placed a
danger sign on the jitney. On May 20 the danger sign was, still on the
machine, but nothing had been done to repair the jitney or to otherwise
eliminate the danger posed by the inoperative brake. The inspector
determined that the time for abatement should not be further extended
and thereupon issued a withdrawal order under section 104(b) of the
Federal Coal Mine Health And Safety Act of 1969, 30 U.S.C. §801 et ~·
(1976)(amended 1977). 1/

±_/

Section 104(b) of the 1969 Act provided, in pertinent part:
•.. if, upon an 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 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 ••• promptly issue
an order requiring the operator of such mine to cause immediately
all persons, •.. to be withdrawn from, such area ••.•

1473

79-10-11

The company sought review of the order. In his decision, the
administrative law judge vacated the order. He found that a roof fall
on the track haulage made it impossible to remove the jitney to the
maintenance shop for repair and that the risks of attempting to repair
the jitney in any place other than the shop outweighed the danger of
postponing the repair because the machine had been tagged out of service.
He therefore held that placing the danger tag on the equipment constituted abatement of the violation prior to the issuance of the order.
We do not agree.
It is undisputed that the inoperable parking brake was a violation.
For a violation such as this, there are two basic ways to abate - repair
or withdrawal from service. Assuming that the jitney could not have
been repaired safely in the time set for abatement, the question in this
case is whether a danger tag alone constitutes withdrawal from service.
We hold that tagging the jitney was not sufficient to withdraw the
jitney from service because the danger tag did not prevent the use of
the defective piece of equipment. The jitney was still operable and the
danger tag could have been ignored. 1/ To abate under these circumstances, the jitney should have been made inoperable. There is no
suggestion in the record that the jitney could not have been rendered
inoperable safely, thus eliminating the danger posed within the abatement period.
The company also argued, and the judge held, that the time set for
abatement was unreasonable in view of the difficulties involved in
repairing it. However, as noted above, there is no evidence that the
jitney could not have been made inoperable within the abatement period.
We therefore find that the time set for abatement was reasonable.

1/

The judge cited Plateau Mining Company, 2 IBMA 303 (1973), in
support of his finding that the company had abated the violation prior
to the issuance of the order of withdrawal. There the Board of Mine
Operations Appeals held that if an operator establishes that the equipment in question is under repair, has not been used, and will not be
used until repaired, no violation exists. Without passing judgement on
the merits of that decision, we note that unlike the jitney in this
case, the equipment in Plateau (a pneumatic drill) had been rendered
inoperable through removal of the plug on the cable that connected it to
its power source.

1474

The decision of the judge is reversed, and the withdrawal order is
reinstated.
Jerome R. Waldie, Chairman

A. E. Lawson; Commissioner

\\\\o.:~~llcl'\
~-~~Jllli~ ')DMQ
Marian Pearlman Nease, Commissioner
/

1475

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

PONTIKI COAL CORPORATION

20006

October 25, 1979

v.

Docket No. PIKE 78-420-P

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
DECISION
This penalty proceeding arises under section 109(a) of the Federal
Coal Mine Health and Safety Act of 1969. 30 U.S.C. §801 et~ (1969)
(amended 1977).
The Secretary seeks penalties for violations alleged in three
orders of withdrawal issued under section 104(c)(2) of the Act.±./ The
company did not seek review of the orders. At the hearing the Secretary
offered evidence as to the existence of the violations and as to the
statutory criteria to be considered when determining the amount of the
civil penalties. The Secretary did not offer evidence as to the underlying section 104(c)(l) notice and order which served as a foundation
for the three section 104(c)(2) orders. The judge found the violations
occurred as alleged. However, due to the Secretary's failure to present
evidence regarding the underlying notice and order, he vacated the three
section 104(c)(2) orders. Because the orders were vacated he mitigated
the penalties for the violations set forth in the orders.
We granted petitions for discretionary review filed by both parties.
Two issues are before us: whether a violation of 30 CFR 75.200 occurred, ]:_/
and whether the validity of an order of withdrawal is properly at issue
in a civil penalty proceeding.

1_/

Section 104(c)(2) of the Act provided, in relevant part:
"If a withdrawal order with respect to any area in a mine has been
issued pursuant to paragraph (1) of this subsection, a withdrawal
order shall promptly be issued by an authorized representative of
the Secretary who finds upon any subsequent inspection the existence
in such mine of violations similar to those that resulted in the
issuance of the withdrawal order under paragraph (1) of this subsection. . .• "
2/ Review was not ,sought for the judge's finding that the two other
violations existed.

79-10-13

1476

As to the first issue, the company's approved roof control plan
allowed a maximum width of 20 feet for entries and crosscuts. ]_/ The
inspector testified that he measured widths exceeding 23 feet at six
entries and one crosscut, with, as the judge found, "the longest measure
averag[ing] 24 feet 9 inches." The company urges us to overturn the
judge's finding of a violation because the measurements of the inspector
were faulty. It argues that some of the inspector's measurements
included the depth of undercuts which existed at the bottom of the ribs. !!_/
The company asserts that entry and crosscut widths should be measured
exclusive of such undercuts. The judge accepted the testimony of the
company's assistant superintendent that the depths of the undercuts were
6 to 12 inches. If we assumed arguendo that the undercuts should be
excluded, any measurement over 22 feet, (excluding two maximum undercuts
of 12 inches each), would be in violation of the 20 foot width allowed
by the approved plan. Thus, at least some of the widths exceeded those
allowed in the,approved plan even if undercuts are excluded. There is,
therefore, substantial evidence to support the judge's finding that a
violation of 30 CFR 75.200 occurred, and we affirm it. 'i_/
Next, we turn to the question of whether the validity of a withdrawal order may be at issue in a civil penalty proceeding. We decided
this question in Wolf Creek Collieries Company, PIKE 78-70-P (March 26,
1979), where we concluded it was error to vacate a withdr'awal order in a
penalty proceeding. We therefore reverse the judge with respect to his
vacation of the three withdrawal orders.
Accordingly, the finding of a violation of 30 CFR 75.200 as set
forth in order No. 7-0106, 2 FDG, 12/06/77 is affirmed. The vacation of
order Nos. 7-0106, 2 FDG, 12/06/77; 7-0081, 1 TE, 12/05/77; and 7-0088,
1 MM, 12/05/77, is reversed and the orders are reinstated. The case is

ll

30 CFR 75.200 provides, in pertinent part:
A roof control plan and revisions thereof suitable to the roof
conditions and mining system of each coal mine and approved by the
Secretary shall be adopted .•..
!±_/ The company used a conventional mining system. As its cutting
machine moved across the face, the cutting bar at times protruded too
far to the left or right and thus undercut the ribs.
,'l/ Because certain widths exceeded the maximum width permitted by the
ro,j'f control plan in any event, we need not reach the company's argument
th~t undercuts should not be included in measuring entry and crosscut
widths.

1477

remanded for reassessment of penalties for the violations contained in
the reinstated orders without consideration of the vacated orders as a
mitigating factor. ii

Waldie, Chairman

ii

Because the trial judge retired on July 30, 1979, remand is directed
to the Chief Administrative Law Judge -so that the case may be reassigned.

1478

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

October 25, 1979

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

Docket Nos. PIKE 77-48-P
PIKE 77-88-P

IBMA No. 78-6

v.

B.B. & W. COAL CO., INC.
DECISION
The administrative law judge's decision is affirmed.

A.

Commis sioner1

79-10-14

1479

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

October 29, 1979

SECREI'ARY OF LABOR,
MINE SAFErY AND HEALTH

AIMINISTRATION (MSHA) ,

IOcket No. VINC 79-119

v.
OLD BEN COAL Ca.1PANY

DOCISION
The issue in this case is whether Old Ben Coal Corrpany (Old Ben) is
responsible for a violation of the Federal Mine Safety and Health Act of
1977 1/ corrmitted by its contractor, ANSCO, Inc. (ANSCO). In his
decis1on, Chief Administrative I.aw Judge Broderick found mat Old Ben
violated a provision of the Act and assessed a $750 penalty for the
violation. For the reasons that follow, we affinn.
The material facts are not in dispute. ANSCO contracted with Old
Ben to construct a building at Old Ben's No. 2 strip mine near Petersburg, Indiana. On April 12, 1978, a Mine Safety and Health Administration (MSHA) inspector conducted an inspection of Old Ben's mine. The
MSHA inspector was accompanied by Old Ben's safety inspector and a
representative of the United Mine Workers of America. During the
inspection, the MSHA inspector observed.an ANSCO employee working on an
I-beam 15 to 20 feet above the ground. The employee was not wearing a
safety belt. Believing that there was a danger of the employee falling,
the MSHA inspector informed Old Ben's safety inspector that he was
issuing a citation for violation of 30 CFR §77.1710(g). 2/ Old Ben's
inspector requested the ANSCO employee to come down and the employee
complied. The citation was issued to Old Ben •
30 u.s.c. §801 et seq. (1978) (hereafter "the 1977 Act" or the
.v Act").
- --

y

This standard, in pertinent part, provides:
§77-1710 Protective clothing; requirements.
E.ach employee 'W'Orking in a surface coal mine or in the surface 'W'Ork
areas of an underground coal mine shall be required to wear protective clothing and devices as indicated below:
(g) Safety belts and lines where there is a danger of
falling ••••

79-10-17

1480

Old Ben does not argue that a violation of _the standard did not
occur. Rather, Old Ben argues that as a ma.tter of law under the 1977 Act
it is neither absolutely liable nor jointly and severally liable for a
violation of the Act comuitted by its contractor. Old Ben urges the
Cormri.ssion to hold that ANSCO, as an independent contractor, was the
operator solely responsible for the violation at issue. The Secretary
of labor argues that under the 1977 Act an owner-operator is absolutely
and vicariously liable for violations attributable to its independent
contractors. The Secretary further argues that his decision to proceed
against an owner-operator for a contractor's violation is exempt from
judicial review. In the alternative the Secretary argues that, if his
decision to proceed solely against Old Ben is reviewable by the Conmission,
it should be upheld because it resulted from a rationally based interim
policy.
The 1977 Act defines "operator" as "any owner, lessee, or other
person who operates, controls or supervises a coal or other mine or any
independent contractor performing services or construction at such
mine." 30 u.s.c. §802(d). The enforcement provisions of the Act all
speak in terms of operator: the Act provides for the issuance of
citations and orders to the operator for violations of mandatory standards
and irmri.nent dangers (30 U.S.C. §§814, 817); requires the assessment of
civil penalties against the operator of a mine in which a violation
occurs (30 U.S.C. §820(a)); and provides for the compensation by the
operator of miners idled by withdrawal orders. 30 U.S.C. §821. Analogous
provisions under the Federal Coal Iviine Health and Safety Act of 1969
have been construed to permit the irllpOsition of liability on owner
operators, for violations occurring in their mines "regardless of who
violated the Act or created the danger requiring withdrawal". Bituminous
Coal Operators' Assoc., Inc. v. Secretary of Interior ("BCOA v. Secretary")
547 F.2d 240, 246 (4th Cir. 1977); Republic Steel Corp., 1 FMSHRC 5, 9 (1979),
pet. for rev. filed, No. 79-1491, D.C. Cir., May 11, 1979; Kaiser Steel
Corp., 1 FMSHRC 343 (1979); Consolidation Coal Co., 1 FMSHRC 347 (1979).
See Republic Steel Corp. v. IBr•lOA, 581 F. 2d 868, 870 n. 5 (D.C. Cir.
1978) • For tJie reasons stated in those decisions, the same conclusion is
warranted under the 1977 Act.
The amendment of the 1969 Act's definition of "operator" to include
"any independent contractor performing services or construction at such
mine" does not require a different result. On its face, the additional'
language in the 1977 Act's definition of "operator" does not affect the
question of an owner's responsibility for contractor violations. Rather,
the amendment simply appears to settle an uncertainty that arose under
the 1969 Act, i.e., whether certain contractors are "operators" within
the meaning of the Act. See, e.g., Association of Bituminous Contractors,
Inc. (ABC) v. Ivbrton, No. 1058-74 (D.D.C., May 23, 1975), rev'd sub norn.
ABC v. Andrus, 581 F. 2d 853 (D.C. Cir. 1978); BCOA v. Secretary, supra;
COWin and Co., Inc., 1 FMSHRC 20 (1979).
To the extent that the legislative history concerning the amended
definition bears on the question of owner responsibility for contractor
violations, it supports the imposition of such liability. The Senate

1481

Committee Report on the 1977 Act explained the amended definition as
follows:
••• [T]he definition of mine "operator" is expanded to include
"any independent contractor performing senrices or construction
at such mine". It is the Committee's intent to thereby include
individuals or firms who are engaged in construction at such
mine, or who nay be, under contract or otherwise, engaged in
the extraction process for the benefit of the owner or lessee
of the property and to make clear that the employees of such
individuals or firms are miners within the definition of the
[1977 Act] •. In enforcing this Act, the Secretary should be
able to assess civil penalties against such independent
contractor as well as against the owner, operator, or
lessee of the mine. The Corrmittee notes that this concept
has been approved by the federal circuit court in Bituminous
Coal Operators' Assn. v. Secretary of Interior, 547 F. 2d 240
(C.A. 4, 1977).

s. Rep. No. 95-181, 95th Cong., 1st Sess., at 14 (1977), reprinted in
Senate SUbcorrrnittee on Lal:or, Committee on Hunan Resources, 95th Cong.,
2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 602 (1978) ["1977 Act Legis. Hist."].
The Conference Committee Report stated the following regarding the
amended definition:
The Senate bill rrodified the definition of "operator" to
include independent contractors performing services or
construction at a mine. This was intended to permit
enforcement of the Act against such independent contractors, and to permit the assessrrent of penalties,
the issuance of withdrawal orders, and the imposition
of civil and criminal sanctions against such contractors
who nay have a continuing presence at the mine.
S. Conf. Rep. No. 95-461, 95th Cong., 1st Sess., at 37 (1977); 1977 Act
Legis. Hist. at 1315.
We read these passages simply as a rrore corrplete explanation of that
which was accorrplished by the amendment to the definition, i.e., a clarification that certain contractors are operators under the Act. The
addition of independent contractors to the definition of operator was done
solely to dispose of any remaining doubt that independent contractors can
be held liable as mine operators. It was not the intention of the Congress
to limit the number of persons who are responsible for the health and safety
of the miner, nor to dilute or weaken the obligation imposed on those persons.
Viewed in this light, the citation in the Senate Report to the Fourth Circuit's
BCOA decision is explainable as a reference to that portion of the BCOA
decision holding that certain contractors were operators under the 1969 Act.
In view of the approving reference to the BCOA decision in the Senate
Report, however, we cannot conclude that the drafters were unaware of that
decision's further holding that owners can be held solely responsible
"regardless of who violated the Act or created the danger requiring
wit11drawal". 547 F. 2d at 246. Given this fact, and the fact that the

1482

1977 Act and the legislative history are otherwise silent on this
irrportant question of.law, we conclude that Congress endorsed the conclusion that owners can be held solely responsible for contractor violations.
Cf. National Industrial Sand Assoc. v. ~.iarshall, 601 F.. 2d 689, 702-703
(3rd Cir. 19 79) •
For these reasons, we find that, as a matter of law under the 1977
Act, Old Ben, as an owner-operator, can be held responsible without
fault for the violation of the Act corrnnitted by its contractor. 4/
When a mine owner engages a contractor to perform construction or
services at a mine, the duty to maintain compliance with the Act regarding the contractor's activities can be irrposed on lx>th the owner and
the contractor as operators. This reflects a congressional judgment
that, insofar as contractor activities are concerned, lx>th the owner and
the contractor are able to assure compliance with the Act. Arguably,
one operator may be in a better position to prevent the violation.
However, as we read the statute, this issue does not have to be decided
since Congress permitted the irrposition of liability on lx>th operators
regardless of who might be better able to prevent the violation.
We emphasize that our conclusion regarding an owner's liability
does not affect a contractor's duty to corrply with the Act or its liability for violations that it commits. The amendment of the definition
of operator in the 1977 Act makes it clear that contractors can be
proceeded against and held responsible for their violations. Indeed,
as discussed rrore fully below, direct enforcement against contractors
for their violations is a vital part of the 1977 Act's enforcement
scheme.
Our inquiry in the present case does not end with the conclusion that
as a matter of law Old Ben can be held responsible for its contractor's
violation.
The Secretary's argument that Commission review of his
decision to proceed against Old Ben is precluded by 5 U.S.C.§701 because
it is a matter corrmitted entirely to his discretion by law is without
rrerit. 5/ The structure and intent of the detailed administrative review
provisions of the 1977 Act compel the conclusion that the Secretary's
decision may be reviewed by the Commission.

First, section 507 of the 1977 Act provides:
Except as otherwise provided in this Act, the
provisions of ••• sections 701-706 of title 5
4/
In view of our conclusion, it is unnecessary to reach the Secretary's
argument that a mine owner is vicariously liable for a contractor's violation
because the contractor is an "agent" of the owner under section 3(e) of the
1977 Act, 30 u.s.c. §802(e).
5/
5 U.S.C. §701, in pertinent part, provides:
(a) This chapter applies, accordingly to the provisions thereof,
except to the extent that
(1) statutes preclude judicial review; or
(2) agency action is commited to agency discretion
by law.

1483

of the United States Code shall not apply to the
rcaking of any order, notice, or decision made
pursuant to this Act, or to any proceeding for
the review thereof.
The 1977 Act does not otherwise make 5 U. S.C. §701 applicable t o Comnission
proceedings. Therefore , the authority the Secretary cites as controlling
on the question of reviewability is not even applicable.

/

Second, we reject the Secretary's attempt to equate the Corrmission with
a court of appeals and have the judicial review provisions of the Administrative
Proced.ure Act, including 5 U. S.C. §701 , applied to Ccmnission proceed.ings
by analogy. The Comrnission stands in a fundarrentally different position
in relation to the Secretary than does a court of appeals. The Comnission
was established as the "ultimate administrative review body" under the
Act due to the recognition that "an independent Comnission is essential to
provide administrative adjudication which preserves due process and
instills much rrore confidence in the program" . 1977 Act Legis. Hist.
at 601, 635. The Comnission is corrprised of persons who "by reason of
,.. training, education, or experience" are qualified to carry out its
specialized functions under the Act . Section 113(a). The Corrmission
-.is authorized to review , on a discretionary basis, decisions of its
administrative law judges on statutorily specified grounds, including
whether the decision presents a "substantial question of ••. policy",
is "contrary to . . • Commission policy", or presents a "novel question
of policy" . Section 113 (d) (2) (A) and (B). The Corranission' s authority
to review judge ' s decisions extends even to cases in which no person
has filed. a petition for review. Section 113(d) (2) (B). These J?OWers
were given to the Conmission to enable it to "develop a unifonn and
corrprehensive interpretation of the law", providing "guidance to the
Secretary in enforcing the Act and to the mining industry and miners
in appreciating their responsibilities under the law". 6/ These
provisions derronstrate that the Corrmission was intended-to play a
najor role under the 1977 Act by reviewing the Secretary' s enforcement
actions and formulating mine safety and health policy on a national
basis. Thus, the Act provides a clear basis for distinguishing the
Corranission' s role from that of a oourt reviewing agency action, thereby rendering application of 5 u.s.c. §701 by analogy inappropriate.
Cf . Brennan v . Gilles & Cotting, Inc., 504 F. 2d 1255 (4th Cir . 1974).
The Corrrnission ' s review authority extends to "determining operator
-responsibility and liability" for violations of the Act. 1977 Act
Legis . Hist. at 89.
For these reasons, we conclude that the Secretary ' s decision to
proceed against an owner- operator f or a contractor ' s violation
is reviewable by the Corrmission.
6/ Nomination Hearing, Members of Federal Mine Safety and Health Review
O::mmission Before the Senate Conmittee on Ht.nna.n Resources, 95th Cong. , 2d
Sess. 1 (1978) (staterrent of Senator Harrison A. Williams, Jr., Chairman).

1484

Having decided that in a contested case the Secretary's decision
to institute enforcement proceedings against an owner for its contractor's violations is reviewable by the Cormnission, we must determine
an appropriate standard of review. The Secretary argues that, if his
decision is reviewable, the appropriate standard of review is that
set forth in section lO(e) of the Administrative Procedure Act,
5 U.S.C. §706 (2) (A). This provision, in pertinent part, provides that
"[t]he reviewing court shall ••• hold unlawful and set aside agency
action, findings, and conclusions found to be arbitrary, capricious, an
abuse of discretion, ©r @therwise n@t in acCG>rdance with law". As noted
above, however, section 507 of the 1977 Act specifically provides that 5
u.s.c. §706 is not applicable to Conmission proceedings.

In reviewing this case, some latitude must be given to the Secretary's
determination as to how to enforce the Act for contractor violations.
The Secretary, by virtue of his enforcem2Ilt responsibilities, has direct
experience with the nature of the working relationships of owners and
contractors on the jobsite. The experience makes it possible for the
Secretary to be apprised of the diverse economic and technical considerations that should be taken into account in formulating a policy on
liability for contractor's violations. Also, the Secretary's enforcement
policy must be coordinated arrong hundreds of inspectors in the field.
These considerations require that the Cormnission not errploy a broad
standard of review in this case. Thus, in these circumstances i:,ve believe
that an appropriate inquiry is for the Cormnission to determine whether
the Secretary's decision to proceed against an owner for a contractor's
violation w~<;i~__ for.. rea::;ons consistent with the purp<Jse and policies c- "'·. ,:·
of the 1977 A.ct.
··
'"
We turn now to examining the record in the case before us. It is
clear from the record that j:Jlg J2.~t:i,_c::.-glg,r. facts of . this .c;:,c;t.s~ .. had. no
bearing on;tbeSecretary's decision to issue the-citation to.Old Ben.
1fie·-secretary concedes that Old Ben was proceeded against under an
agencywide policy to directly enforce the Act against only owner-operators
for contractor violations. The record is far from clear as to the basis
of this policy. The Secretary admits that the policy, in part, represents
a continuation of past practice under the 1969 Act • The policy under the
1969 Act of citing only owner-operators for contractor violations
had its roots in the district court's decision in ABC v. Morton, supra,
holding that contractors were not "operators" under the 1969 Act. On
February 22, 1978, however, the district court's decision was reversed
in ABC v. Andrus, supra, and after that date it was clear that the
Secretary could enforce the Act directly against contractors. More
irrportantly, when the 1977 Act becarre effective on March 9, 1978, any
doubt concerning the Secretary's ability to proceed directly against
contractors was dispelled. Therefore, 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. !>brton, there wuuld be no
doubt that his decision was improper. Cf. Republic Steel Corp. v ~ Il3MJA,
581 F. 2d 868 (D.C. Cir. 1978).
~
The Secretary, however, has provided another reason explaining his

1485

decision to proceed against Old Ben for its contractor's violation. The
Secretary asserts that, although Old Ben was proceeded against in accordance
with a Secretarial policy of directly enforcing the Act only against
owners, this policy is an interim one pending adoption of regulations
providing guidance to inspectors in the identification and citation of
contractors. In the Secretary's view, this interim policy is necessary
to avoid the "unpredictability, confusion, and potential unfairness"
that v.Duld result if each of rrore than 1,600 inspectors detennined the
appropriate operator to proceed against on an individual ad hoc basis.
On October 23, 1978, MSHA made public a draft of proposed regulations in::licating its intent to enable inspectors to proceed directly
against contractors for their violations. On August 14, 1979, the
proposed regulations were published. 44 Fed. Reg. 47746-47753 (1979).
The proposed regulations provide a finn indication of the Secretary's
intent to enforce the Act directly against contractors for violations
that they comnit.

We note that the interim policy being pursued by the Secretary is
not in line with the view expressed in his proposed regulations of how
best to enforce the 1977 Act. Also, we have doubts concerning the
necessity of the Secretary's blanket "owners only" enforcement policy
even on an interim basis. In many circumstances, as in the present
.case, it should be evident to an inspector at the time that he issues a
citation or order that an identifiable contractor created a violative
condition and is in the best position to eliminate the hazard and prevent
it from recurring. Thus, we fail to see the overriding need for adherence
to a uniform policy in instances where it is clear that proceeding
against a contractor is a rrore effective method of protecting the safety
and health of miners. Nevertheless, we recognize that it takes some
time for the development of new policies and procedures by a departrrent
newly assigned the enforcement of a major program designed to protect
the health and safety of miners. 7/ Therefore, because the Secretary's
decision to proceed against Old :sell was grounded on considerations of
consistent enforcement, it was made for reasons consistent with the
purposes and policies of the 1977 Act and we will not disturb his choice.
We emphasize, however, as the Secretary has recognized in his
proposed regulations, that the amendment of the 1977 Act's definition of
operator to include independent contractors was intended to accomplish a
specific purpose, i.e., to clearly reflect Congress' desire to subject
contractors to direct enforcement of the Act. The Secretary has also
recognized in his proposed regulations that enforcement against owners
for contractor violations, although a legally permissible method of
effecting miner safety and health, oftentimes proves to be an inefficient
and unsatisfactory manner of achieving the Act's purposes. See also AOC
v. Andrus, supra, 581 F. 2d at 863. We note that there is no indication
of when the interim policy will be replaced by a new one. If the Secretary
.. unduly prolongs a policy that prohibits direct enforcement of the Act
againstcofrErcrctors, he will be disregarding the intent of Congress. In
view of the Secretary's express recognition of the wisdom and effectiveness

2/

The 1977 Act became effective on 1'1arch 9, 1978.
was issued to Old Ben on April 12, 1978.

1486

The citation in this case

of subjecting contractors to direct enforcerrent, continuation of a
policy that forecloses such enforcement will provide evidence that the
current policy is grounded solely on .irrproper considerations of administrative convenience, a basis that w::>Uld riot be consistent with the
· k::t:'·s pU:tpose--ana·palicies. The ability to proceed against owners for
contractor violations was intended to provide an effective tool for
protecting the safety and health of miners. To use this tool as a mere
administrative expedient w::>uld be an abuse.

-:~ c '

For these reasons, the decision of the administrative law judge
finding that Old Ben violated the Act is affinned.

~Cr1=~
~i'1 Pearlman Nease,

·-·

Comnissioner

Backley, Corrrnissioner, dissenting:
This case arises under the Federal Mine Safety and Health Act of
1977 (1977 Act), but poses the sarce question as was presented to the
Ccmnission in Republic Steel Corporation (Republic), 1/ a case that was
decided under the Federal Coal r.tine Health and Safety-Act of 1969 (1969
Act). Under the 1969 Act, the tenn "independent contractor" was not
included.in the statutory definition of "operator". 2/ H~ver, oourt
decisions, in interpreting that word, held that under the definition of
"operator" in the 1969 Act an independent oonstruction oontractor oould
re oonsidered a coal mine operator. 3/ In the enactment of the 1.977 Act,
Congress, noting with approval such ]udicial interpretation, 4/ amended
the definition of "operator" to include independent contractors perfonning
services or construction at a mine.
1

2/
3/

Secretary of Labor v. Republic Steel Corporation, Docket Nos.
IBMA 76-28, MJRG 76-21, IBMA 77-39, M:>RG 76X95-P, Camt.
No. 79-4-4.
30 u.s.c. §802 (d).
Bituminous Coal Operators' Association v. Secretary of the Interior,
541 F.2d 240 (4th Cir. 1977), (s::DA); Association of Bituminous
Contractors Inc., (ABC) v. Andrus, 581 F.2d 852 {D.C. €ir. 1978).
The Senate camri.ttee Report specifically cites the ECOA decision.
S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977)-.-

1487

Accordingly, under both Acts an independent contractor can be held
liable as a mine operator. The under1ying question thus presented in
both Republic and the instant case is under what circumstances should
liability of the contractor attach. Today's majority opinion sheds
little light on this question. As in Republic, the majority has-.he:l,d
the owner-operator liable on a theory of absolu~e or _strict liability
without any consideration of the action or inactlonof .the"independent
contractor. 5/
H~ver, it is apparent that the majority has retreated from its
rigid :i;:osition, as enunciated in Republic, of approving without meaningful
review the Secretary's imposition of absolute liability on the CM!leroperator and nCM considers such :i;:olicy of the Secretary to be "permissive"
dependent u:i;:on the Secretary's promulgation of regulations discussed
later herein. The fact remains, however, that the majority has disregarded
the facts presented in this case and, accordingly, has deferred to the
Secretary's present ill-founded :i;:olicy of citing only the owner-operator.
Accordingly, I must dissent.

As in Republic, I do not dissent from the court sup:i;:orted pro:i;:osition
that the statutory language permits the imposition of absolute liability
on owner-operators for independent contractor violations. Hc:Mever, the
Secretary of Labor and this Commission have an obligation to determine
under what circumstances imposition of the statutorily permissible
concept of absolute liability will best pronote the safety and health of
miners. Thus the thrust of my dissent, both in Republic and in the
instant case, goes to the question of whether the owner-operators, under
the facts presented to us, should be held liable for the violations of
their contractors. I submit that the answer to the latter question
depends on the factual situation presented in each case :rreasured against
a standard of preventative control. §I

6/

In lieu of the term "absolute liability", the majority finds
Old Ben can be held res:i;:onsible "as a matter of law ••• without
fault ••• ". The phrase, "a distinction without a difference,"
I believe, is appropriate.
While conceding that "one operator may be in a better :i;:osition to
prevent the violation," the majority then, surprisingly, proceeds
to reason that that "issue" need not be decided, attributing such
reasoning to Congress. It would appear that the ability to prevent
a violation from taking place v-Duld do rrore for the pronotion of
health and safety, then the blind assertion that Congress allows
"the im:i;:osition of liability on both operators" regardless of their
relative position insofar as a violation is concerned. The
rationale that Congress "endorsed the conclusion that owners can
be held solely res:i;:onsible for contractor violations" does not
sup:i;:ort the conclusion that they should. This leap in logic ignores
safety, for to hold one party liable who is in a lesser :i;:osition to
prevent violations provides little comfort for the miners.

1488

Thus, as I indicated in Republic, I 'l;<.Duld impose liability on the
person rrost able to prevent the violation and to correct it quickly
should it occur. In my opinion that person would be the party who has
functional control of, or supervision over, the work activity in that
portion of the mine where the violation occurred.
Accordingly, I submit that there rrust be, at a minimum, some rational
relationship between the owner-operator and the wrongdoing alleged in
the citation before the CMner-operator should be held legally responsible
for the violation. Such relationship does not exist under the facts of
this case as examined below. Therefore, I conclude that Old Ben should
not be held liable for the violation corrmitted by its independent contractor.
Application of the concept of absolute liability of the owner-operator
regardless of the facts can produce only unreasonable results as this
case clearly derronstrates.
An inspection of the Old Ben No. 2 Strip Mine was ma.de by Deparbnent
of Labor inspector Joseph Hensley on April 10, 11 and 12, 1978. During
the inspection employees of an independent construction contractor,
ANSCO, Inc. , were working at two different locations on the mine property.
ANSCO had been contracted by Old Ben to construct a structure to be used
in repairing the dragline shovel buckets used at the No. 2 strip mine.
ANSCO employees were also on mine property constructing an addition to
the tipple.
On April 11th, Inspector Hensley visited the construction site at
the tipple and observed four men working in an elevated position with
neither safety belts nor scaffolding. Hensley pointed out this safety
hazard to Dale Wools, the Old Ben representative accompanying him, who
asked the men to "come dCMn.
Hensley and Wools then contacted William
Wagner, ANSCD' s superintendent of construction at the No. 2 mine.
Inspector Hensley explained to Mr. Wagner "at that time what the law
said about safety belts and what was required for his men to do when
working on an elevated platfonn and he assured me [Hensley] at that time
that he would have none of his men working from an elevated position
again unless they were 'VVearing safety belts." (TR. 20)
11

On April 12th Inspector Hensley was again accompanied on the continuation of his inspection by Old Ben's representative, Dale Wools.
While driving by the bucket building construction site with Mr. Wools,
the inspector observed an employee of ANSCO working 15 to 20 feet in the
air standing on an I-beam. The employee, who was welding, was not
wearing a safety belt and was not using scaffolding which was available
at the site. The inspector instructed the Old Ben representative to have
the man come to the ground, which he did. When the employee descended
the inspector considered the violation to be abated. (TR. 32) There
were no other Old Ben hourly employees or supervisors in the inmediate
vicinity of the construction site. ANSCO's construction supervisor,
Mr. Wagner, was on the mine property but he was not at the bucket.
building construction site at the time of the violation. (TR. 34, 35)

1489

The ANSCO employee who was cited for failure to wear the safety
belt stated to Inspector Hensley at the time of the violation "that he
knew that he was required to wear safety belts but he was instructed" by
Mr. Wagner "that he had to get the job done and that there were no belts
available for him so he went up" without the safety belt. (TR. 37) The
ANSCO employee had further explained that "he had just a quick job. His
foreman was in the office waking a phone call and he thought he would
get the job done right away while the foreman was gone and have it done
when he got back." (TR. 50)
Inspector Hensley also testified that he issued the citation to Old
Ben under the unwarrantable failure provisions of section 104(d) 7/ because
he had previously explained the safety belt requirements to the ANSCO
supervisor and because the ANSCO employee admitted that he knew he was

violating a safety standard.

(TR. 35)

The contract between Old Ben and A."l\JSCO provided that ANSCO was to
erect the building for a fixed sum according to certain specifications.
The administrative law judge made a finding that under the tenns of the
contract and in carrying it out, ANSCO was independent of any control by
Old Ben. He further found that ANSCO' s employees were supervised by its
CMn supervisor and Old Ben did not hire, fire, direct or control them in
their duties. (Dec. p. 2, 3) The employee in question was not directly
or indirectly under Old Ben's control. (Dec. p. 4)
Thus under these facts, Old Ben has been assessed a civil penalty
of $750.00 as a result of the poor safety practices of a construction
company's employee over which they had no practical control. Furthermore,
Old Ben's No. 2 Strip Mine was subjected to the potential closure sanctions
of the unwarrantable provisions of section 104(d) of the Act not because
of any action or inaction of Old Ben, but, according to the testirrony of
the inspector, because of the laxity of supervision by ANSCO and the act
of the ANSCO employee in flagrantly corrmitting the violation.
The transcript of the evidentiary hearing in this case indicates
that the inspector felt he had been placed in an awkward position by the
MSHA policy as enunciated by counsel at the hearing. In response to a
question from the Judge as to why the inspector did not cite J:oth the
owner-operator and the independent contractor, the Secretary's counsel
stated that "there are no regulations out now that state we can cite
independent contractors for violations." (TR. 7) Counsel further
stated:
"The present practice of the Secretary is to cite
the owner-operators of all violations that are
conmitted on the (mine) property ••. " (TR. 8)
The inspector was clearly aware of this policy to cite only CMneroperators and not independent contractors. However, his testirrony
indicates that he sensed he was citing an improper party, but was helpless
to remedy the situation because of the restrictions placed upon him.
7/

30 USC §814(d)

1490

Inspector Hensley was asked at the evidentiary hearing why Old Ben
was cited instead of ANSCO. He replied as follows:
"I had no provisions to cite ANSCO at that time. We
were aware of the law, the '77 Act that they were
trying to promulgate laws for construction people to
get them to stand on their o..vn :rrerits but at the time,
there were no laws in effect at which there is not yet,
as far as I am aware of, maybe there is but as far as I
am aware of there is no law governing contractors.
They still came under the jurisdiction of the mine
while they are on mine property. If you will note on
my citation, I did write in the body of the citation
that it was ANSCO." (TR. 28)
There is, of course, a "law governing contractors." What does not
exist, h™ever, is a rational application of that law -- only a policy
of what can best be described as one based principally on administrative
convenience.
As noted by the majority, the Secretary made public in October 1978,
a draft of proposed regulations establishing criteria by which independent
contractors vvould be designated operators. On August 14, 1979, 17 m:mths
and 5 days after the effective date of the Act the revised proposed
rules were published by the Secretary. In both the draft version and
the final 8/ proposed version of the rules,-the preambles make it clear
that in determining liability as between the o..vner-operator and the
independent contractor, the pararrount concern is improved safety and
health conditions for miners. I am in full agreement with that underlying
premise. The preamble to the proposed rules published in August further
states that ".MSHA's experience under the 1969 Coal Act and the 1977 Act
has been that persons controlling a mine are generally in a position to
act rrore responsibly and effectively with regard to safety and health
conditions at the mine." (F.R. p. 47747) I believe that conclusion of
the enforcement arm of the Secretary is rrost important and should be
given careful consideration. So as to fulfill the Congressional mandate
to rrost effectively prorrote the health and safety of the miner, the
Secretary then concludes as follows:

Accordingly, under the proposed rule the primary
criterion for identification of independent
contractors as operators would be whether the
contractor will have effective control over an
area of the mine during the performance of its
work.

8/

The proposal of August 14, 1979, provides for a 60-day corrment
period. Accordingly the finality of the proposal is, at this
point, tenuous.

1491

In Republic, I set forth criteria I would utilize in detennining
the responsible party. Those criteria have much in com:ron with what the
Secretary proposes. What I fail to understand is why the implementation
of principles with which the Secretary agrees would rrore effectively
prorrote the safety and health of the miners must await this interim
period of formal departmental rulernaking with all of its delays, some
inherent and some not. No satisfactory answer to this question has been
advanced. I do not believe there is one. 9/
Certainly, administrative convenience, in and of itself, is an
inadequate reason to sacrifice miners' safety. But the Secretary argues
that continuation of the policy of prosecuting ONner-operators for
independent contractors violations is not only rational but necessary.
The Secretary states:
If each inspector were to exercise the Secretary's
prosecutorial discretion without guidelines, as the
inspector saw fit, the resulting unpredictability,
confusion, and potential unfairness would hann the
Secretary's enforcement program and, potentially,
disrupt the mining industry. (Brief of Secretary,
p. 27, Monterey Coal Ccrnpany v. Secretary of Labor
HOPE 78-469, et al.)
I believe that the Secretary has overstated the practical difficulties which inspectors encounter at the mine site in the vast majority
of situations involving violations of independent contractors. The
portions of the record cited arove in the instant case serves to
illustrate this point. The record reveals an inspector who knew through
experience which party should have been held responsible, but who was
unable to exercise this expertise as a result of the Secretary's interim
policy.
The majority opinion correctly, in my view, outlines the Corrmission's
role vis-a-vis that of the Secretary in reviewing the latter's enforcement
policy. In this regard, I agree with the majority's statement that
" ••• The Corrmission was intended to play a major role under the 1977 Act
by reviewing the Secretary's enforcement actions and fonnulating mine
safety and health policy on a national basis." [Emphasis supplied]
Unfortunately, having said that, my colleagues defer again to the
Secretary in this case, notwithstanding the facts.of this case, let
alone their own well articulated description of their roles as members
of the Commission. One can only hope, in reading their decision, that
their patience is growing thin insofar as the Secretary's failure to
establish a policy that allcws the enforcement of the Act against the

9/

While this issue is not before us, the question as to why one class
of "operator" must be further defined beyond the statutory
definition, gives me some problems. The Secretary's regulations
will condition liability in the case of independent contractors but
not in the case of an owner-operator. I find no such distinction
in the Act.

1492

"other operator," the independent contractor. Even rrore .llnportant it
remains to be seen what their position will be if the Secretary continues
to be dilatory in his promulgation of such a :i;olicy. Nothing in their
opinion suggests an ~r to this question.
For the reasons set forth herein and in Republic, I would reverse
the decision of the administrative law judge.

~~
Richard v. Ba&rey;camI\iSSiOir

149.1

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

20006

October 31, 1979
Docket Nos. VINC 77-12-P
VINC 77-13-P

PEABODY COAL COMPANY
v.

IBMA No. 77-57
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
DECISION
This appeal was pending before the Interior Department Board of
Mine Operations Appeals as of March 8, 1978. Accordingly, it is before
the Connnission for decision. 30 U.S.C. §961 (1978). Peabody is appealing the decision of an administrative law judge finding that it violated
two mandatory standards of the Act, 30 CFR 77.404(a) and 30 CFR
77 .1713(a). 1./
The two notices of violation were issued following a fatal accident
at Peabody's Lynneville Mine. On June 18, 1975, the foreman assigned
two mechanics to change a flat tire on a coal haulage truck. After the
mechanics removed the tire from the truck, it was transported with a
forklift to a storage area. They then lifted the new 2,500 pound tire
onto one of the tines of the forklift and transported it back to the
truck to install it. When the mechanics began to put the new tire on
the truck they realized that two of the studs on the wheel were broken.
They backed the forklift away from the hub of the wheel and parked it.
One of the mechanics went to advise the foreman, who had left the
vicinity, that a nut had to be welded on a stud before the tire could be
replaced. The victim came and welded a nut to the stud. While the weld
cooled, the victim and the mechanics took a coffee break. The foreman
returned to the area while the men were on their break. He observed the
parked forklift and saw the tire suspended 18 inches from the ground.
When the men returned from their break, one of the mechanics noticed the
forklift tines had descended so that the bottom of the tire was resting
on its treads on the ground. As the mechanics and the victim approached
the forklift the tire fell on its side, striking the victim and fatally
injuring him.
The accident investigation revealed that during the time the tire
was on the forklift its tines were slowly descending toward the ground
due to hydraulic leakage. The leak was internal and not visible. It
caused the tines to descend at a rate of approximately one inch per
minute.

1:_/

Two additional alleged violations of 30 CFR 77.1708 and 30 CFR
77.208 were dismissed by the judge and are not at issue in this appeal.
79-10-20
1494

In August 1973, a similar fatal accident occurred at Peabody's Hill
Scarlett Mine. During a tire changing operation a tire toppled off the
tines of a forklift fatally injuring a mechanic. 2:_/ The foreman knew of
the prior fatality.
The judge held that Peabody violated 30 CF~ 77.404(a), which provides: "Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service irnnediately." He found "the
operator was in violation of the section because of the internal hydraulic
leakage" and assessed a penalty of $6,000 for the violation.
We affirm the judge's finding of a violation of 30 CFR 77.404(a).
The regulation imposes two duties upon an operator: (1) to maintain
machinery and equipment in safe operating condition, and (2) to remove
unsafe equipment from service. Derogation of either duty violates the
regulation. The company admitted the presence of the hydraulic leak. In
doing so, it admitted the forklift was not maintained in "safe operating
condition." The existence of the violation was established. The company
argues it could not violate the regulation without knowledge of the
leak, and it would have us condition liability upon prior knowledge.
This we cannot do. The regulation requires that operators maintain
nachinery and equipment in safe operating condition and imposes liability
upon an operator regardless of its knowledge of unsafe conditions. What
the operator knew or should have known is relevant, if at all, in determining the appropriate penalty, not in determining whether a violation
of the regulation occurred.
The judge also determined that Peabody violated 30 CFR 77.1713(a). 11
The judge acknowledged that the foreman did not know of the leak, but
based on his knowledge of the past fatality, and the proximity of the
tire and forklift to the truck, the foreman "should have realized that
the lives and safety of the miners were dependent upon the integrity of
the hydraulic system of the forklift truck." A penalty of $6,000 was
assessed by the judge.
We also affirm the judge's holding that the company violated 30 CFR
77.1713(a). The regulation is broadly worded and requires, among other
things, that a designated certified person examine working areas f.or
hazardous conditions as often as is necessary for safety and that any
conditions noted be corrected by the operator. In this instance the
foreman assigned the miners the task of changing the tire. He observed
the unsecured tire hanging from the forklift in a working area. The

Jj

11

See MESA v. Peabody Coal Company, vrnc 74-927-P (Hay 3, 1976).
Section 77.1713(a) provides:
At least once during each working shift, or more often if aecessary
for safety, each active working area and each active surface
installation shall be examined by a certified person designated by
the operator to conduct such examinations for hazardous conditions
and any hazardous conditions noted during such examinations shall
be reported to the operator and shall be corrected by the operator.

1495

foreman knew of the prior accident. He should have known that the
practice of changing tires with a forklift was potentially hazardous.
The failure to correct the hazard by, for example, insuring that the
hydraulic system was functioning properly, or by securing the tire,' or
by removing it from the working area constituted a violation of the
regulation.
Finally, Peabody's contention that the judge erred in assessing
penalties of $6,000 for each of the violations is without merit. The
penalties assessed are appropriate and will not be disturbed.
Accordingly, the judge's decisio~rmed.

Marian

Commissioner

Waldie, Chairman, and Backley, Commissioner, co~curringin part and dissenting
in part:
While we concur with the majority in affi:tming the administrative
law judge's finding of a violation of 30 CFR §77.404(a), we must dissent
from their conclusion regarding the violation of 30 CFR §77.1713(a). We
do so because the findings of the judge as set out on page 6 of his
decision do not support a violation of that regulation, 1/ the key to
which is the "examination for hazardous conditions" and the reporting
thereof.

1/

The Administrative Procedures Act requires the decision to include
such support. 5 U.S.C. 557(c) reads, in pertinent part:
"All decisions ••• are part of the record and shall
include a statement of-(A) findings and conclusions, and the
reasons or basis therefor, on all the
material issues of fact, law, or discretion
presented on the record; ••• "

1496

Either the majority has misinterpreted the findings of the judge or
has rewritten them to conform to the record so as to support a violation
of the regulation in question. Regarding the "hazardous condition"
requirement of the standard, the judge found that the "lives and safety
of the miners were dependent upon the integrity of the hydraulic system"
(emphasis added). He went on to hold that, although the foreman had no
personal knowledge of this hazard, such knowledge could be imputed to
the operator. Evidently, the judge imputes this knowledge from the
recognized fact that "hydraulic systems do occasionally leak" and the
operator's "past experience with a similar fatality." However, the
"similar fatality" to which he refers did not result from a hydraulic
leak, the basis of the judge's findings, but involved similar tire
changing procedures which produced the unfortunate results to which the
judge refers. Accordingly, we find it difficult to impute knowledge of
a hydraulic leak where there is no basis for such imputation in the
record.
If the judge had made the findings attributed to him by the majority,
we would have little problem in affirming him. However, such is not the
case. The judge based his finding solely on imputed knowledge of the
hydraulic leak, the fact of which, the record discloses, the foreman was
unaware. The judge' found no breach of the duty to inspect the forklift
nor did he find any breach of the duty to report the hazardous conditions
as to the latter. The judge specifically found that the foreman "did
not know it [the forklift] was hazardous because he did not know of the
hydraulic leak." Having said that, he then imputes knowledge of such
leak based, in part at least, on a faulty premise--the operator's past
experience with a similar fatality which did not involve a hydraulic
leak. ]:_/ We do not believe such imputation is contemplated, permitted
or warranted under the cited standard, yet alone the facts.
Furthermore, the majority opinion fails to address a major argument
of the applicant. Counsel's brief argues that under the findings of the
judge, a violation of §77.1713(a) is duplicative of a violation of
§77.404(a) and the imposition of a penalty for each constitutes an
unreasonable multiplication of violations and assessments. The judge
found a violation of §77.404(a) on the basis that the hydraulic leak
demonstrated that the operator failed to properly maintain the forklift
and failed to remove it from service when it became unsafe. The judge
then imputes to the operator the knowledge that maintenance and inspection

2/

It is far from clear as to the finding of a violation of §77.1713(a)
is concerned, what role, if any, "common knowledge that hydraulic
systems do occasionally leak" played. The opinion, as written,
does not refer to this "fact" in support of the violation in question,
but to the violation of §77.404(a).

1497

of the forklift was not taking place and finds a violation of §77.1713(a)
for failure of the operator to di~cover and correct the condition of the
forklift in the course of the on-shift examination. In summary, the
appellant has argued that an operator should not be sanctioned twic~ for
what, in essence, is the same conduct--failure to discover the condition
of the forklift. We agree. The majority refuses to disassociate itself
fro}li the finding of the judge that the "hazardous condition" necessary
for a violation of §77.1713(a) consisted of the leaking hydraulic system
on the forklift. In so doing, today·' s decision fails to cure what
appears to-us to be duplicative findings of the judge.
One final comment is in order. We do not believe that Congress
intended our role as a reviewing body to include the authority to substitute our findings for that of the trial judge unless such findings
are unsupported by substantial evidence of record. Section 113(d)(2)(A)(ii),
Federal Mine Safety and Health Act of 1977.
The majority opinion provides no analysis as to whether the judge's
findings upon which he bases his conclusion that §77.1713(a) was violated
are supported by substantial evidence of the record. On the contrary,
in order to support the violation, the majority provides supposition and
example, none of which are part of the findings.
Accordingly, we would reverse the judge as to his conclusion that a
violation of §77.1713(a) is supported by the findings of record.

~t_0&:4·

Jer~aldie, Chairma~

oner

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

20006

October 31, 1979
CLIMAX MOLYBDENUM COMPANY,
a division of AMAX INC.
Docket Nos. DENV 79-102-M
through
DENV 79-105-M

v.

SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION
(MSHA),
and
OIL, CHEMICAL, AND ATOMIC
WORKERS' INTERNATIONAL UNION,
LOCAL 2-24410

ORDER
On September 21, 1979, the Commission granted a petition for discretionary review, filed by Climax Molybdenum Company, of an administrative law judge's decision. Climax has filed its brief on review of
that decision and has also filed a motion to accept attachments to its
brief "as part of the record". The attachments are a deposition of an
MSP..A inspector, with an outline of the deposition; and a Mine Safety and
Health Administration (MSHA) document purporting to interpret and
explaining MSHA's enforcement of the silica dust standard. Climax
states that the material would support its arguments in its brief, and
that the Secretary of Labor would not be prejudiced by the granting of
the motion, because attorneys for the Secretary were present at the
deposing of the inspector and received copies of the deposition
transcript, and because the Secretary supplied the MSHA document.
Section 113(d)(2)(C) of the Federal Mine Safety Health Act of 1977,
30 U.S.C. §801, states what constitutes the record on review of a
judge's decision: the record upon which the decision of the judge was
based, the rulings on the parties' proposed findings and conclusions,
the judge's decision, the petition for discretionary review and responses thereto, the direction for review, and the parties' briefs on
review. The section also states that "[n]o other material shall be
considered by the Commission upon review . . . . If the Commission
determines that further evidence is necessary on an issue of fact it
shall remand the case for further proceedings before the administrative
law judge." These provisions evince the Congress' view that the

79-10-21
1499

adjudication process is best served if the administrative law judge is
first given the opportunity to admit and examine all the evidence before
making his decision. The motion to accept the attachments is therefore
denied; the attachments will not be considered by the Commission. See
Helvetia Coal Co., 1 FMSHRC 26, 1 BNA MSHC 2070 (1979).
We note that Climax's brief relies upon the material attached to
its brief. References to this material appear on pages 4, 5 and 12
of the brief. Within 15 days of the issuance of this order, Climax
may either file revisions of those pages or a new brief that does
not cite or rely upon the excluded material.
The Secretary of Labor has filed a motion requesting an extension
of time for filing its response brief from November 5, 1979 to
November 19, 1979. In view of the need for modifications in Climax's
brief, the Secretary's brief is due within 20 days after Climax's
new brief or revisions are served upon the Secretary.

Chairman

Richard V. Backley,

A. E. Lawson, Commissioner

\~bUw~ww\lorµq
Marian Pearlman Nease, Commissioner

1500

ADMINISTRATIVE LAW JUDGE DECISIONS.
OCTOBER 1 - 31, 1979

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

20006

October 1, 1979

Civil Penalty Proceeding

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

Docket No. DENV 79-29-P
A.G. No. 05-003001-03001F
Dutch Creek No. 1 Mine

MID-CONTINENT COAL AND COKE
COMPANY,
Respondent
DECISION
Appearances:

James Abrams, Esq. and James Barkley, Esq., Office
of the Solicitor, Department of Labor, Denver
Colorado, for Petitioner;
Edward Mulhall, Jr., Esq., Delaney and Balcomb,
Glenwood Springs, Colorado, for Respondent.

Before:

Chief Administrative Law Judge Broderick

STATEMENT OF THE CASE
This proceeding was heard on the merits before Judge Malcolm P.
Littlefield, in Denver, Colorado, on June 12 and June 13, 1979.
Judge Littlefield retired from Federal service on June 30, 1979,
before he was able to issue a decision in the case. With the consent
of counsel, the matter was assigned to me for decision b.ased upon the
record made before Judge Littlefield and the contentions of the parties. Posthearing briefs were filed on behalf of both parties. To
the extent of the proposed findings and conclusions are not incorporated in this decision, they are rejected.
Philips Gibson, Jr. and Freeman Staples, Federal mine inspectors,
testified on behalf of Pestitioner. Donald Ford and John Turner
testified on behalf of Respondent.
The case arises under the Coal Mine Health and Safety Act of
1969, 30 u.s.c. § 801 et seq. The Act was amended by the Federal Mine
Safety and Health Act Of 1977 which became effective March 9, 1978.
The amendments do not affect this case.

1501

STATUTORY PROVISION
Section 109 of the Coal Mine Safety Act provides in part:
The operator of a coal mine in which a violation
occurs of a mandatory health or safety standard * * *
shall be assessed a civil penalty * * * [of] not more
than $10,000 * * *· In determining the amount of the
penalty, the Secretary shall consider the operator's
history of previous violations, the appropriateness of
such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect
on the operator's ability to continue in business, the
gravity of the violation, and the demonstrated good faith
of the operator charged in attempting to achieve rapid
compliance after notification of a violation.
REGULATORY PROVISION
30 CFR 75.1725(a) provides: "Mobile and stationary machinery
and equipiment shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be removed from
service immediately."
ISSUES
1. Whether Petitioner established that the violation charged
in the notice occurred; more specifically whether the Respondent
was shown to have failed to maintain the hoist assembly and wire
rope used in raising and lowering the ventilation door on the inby
end of the No. 50 crosscut between No. 6 and No. 7 slopes in the
subject mine in safe condition on January 17, 1978?
2. If a violation occurred, what is the appropriate penalty
and with respect to the questions of gravity and negligence, was
the violation related to the fatality which occurred on January 17,
1978?
MOTION TO REOPEN RECORD AND ADMIT EXHIBIT
On September 4, 1979, Petitioner moved to reopen the record for
the purpose of admitting into evidence Petitioner's Exhibit G-2, a
computer printout of the history of violations of the operator at
the subject mine from January 18, 1976 to January 17, 1978. Respondent has not filed a reply. The motion is GRANTED and Petitioner's
Exhibit G-2 is received in evidence.

1502

FINDINGS OF FACT
1. Respondent, Mid-Continent Coal and Coke Company, on January 17,
1978, and prior thereto, was the operator of a coal mine in Petkin
County, Colorado, known as The Dutch Creek No. 1 Mine, I.D. No.
46-01477.
2. The record does not contain evidence concerning the size of
Respondent's business.
DISCUSSION
Petitioner's posthearing brief states that "this firm registered
over 1-1/2 million production tons per year when the proposed assessment was issued." I have not found evidence in the record to support
this statement either by way of testimony, exhibits, stipulations or
otherwise. I can assume from Exhibit G-2 showing the number of prior
violations that the operator is not small. In the absence of more
specific evidence on this issue, I will treat the size of the business
of Respondent as moderately large.
3. There is no evidence that the assessment of a penalty herein
will affect Respondent's ability to continue in business, and therefore, I find that it will not.
4. Exhibit G-2 shows a total of 419 paid violations occurring
at the subject mine between January 18, 1976 and January 17, 1978,
including eight violations of 30 CFR 75.1425. I find this to be a
substantial history of prior violations and if a penalty is assessed
herein, it will reflect this finding.
5. The evidence establishes that Respondent showed good faith
in promptly abating the condition after the notice was issued.
6. On January 17, 1978, a fatal accident occurred at the subject
mine. The driver of a battery-powered scoop tractor was killed when
his chest was crushed by a partially opened airlock door located on
the inby end of the No. 50 crosscut between No. 6 and No. 7 slope in
the subject mine.
7. On January 17, 1978, Philip R. Gibson, a coal mine inspector
and a duly authorized representative of the Secretary, issued Respondent a notice in which he alleged a violation of 30 CFR 75.1725(a).
VIOLATION
8. On January 17, 1978, one of the two wire ropes used to
lift the airlock door was frayed and abraded; four of its six strands
were broken. The frayed portions of the cable would not pass through
the pulley system used in lifting the door.

1503

9. On January 17, 1978, the "keys" in the griphoist cranking
lever used to raise the airlock door were missing and were replaced
by a nail and a screw. It was necessary for one operating the lever
to hold the nail and screw in place while operating the cranking
lever with his other hand.
10. The condition found in Finding of Fact No. 8 was unsafe, in
that it could result in injuries to miners if the cable broke.

11. The conditions found in Findings of Fact No. 8 and No. 9
were unsafe in th~t it rendered raising the door more difficult
and required more physical exertion.
GRAVITY
12. Three employees were potentially exposed to the unsafe conditions found to exist in Findings of Fact No. 10 and No. 11, one on
each shift.

13. The employees referred to above were material handlers who
carried supplies to the working section. When such employees reached
the door, they were required to leave their vehicles, open the outby
door, drive through the door, lower the door and repeat the process
for the inby door, thereby maintaining an airlock and preventing
disruption in mine ventilation.
14. The door in question was 4 feet high, and 13 feet 9 inches
wide with a 6 inch flap on each side. It was constructed of 1/4 inch
plate steel, and weighed over 850 pounds. The capacity for lifting
materials of the griphoist mechanism in question was 2,000 pounds.
15. The crosscut in question was 20 to 22 feet wide and 7 to
8 feet high.

16. On January 17, 1978, an employee of Respondent, the driver
of a battery-powered scoop tractor was killed when his chest was
crushed by the inby airlock door as he was driving through. There
were no witnesses to the accident.
17. The tractor headlight was damaged, indicating that the
vehicle struck the door in proceeding through the opening before
the fatal injury.
DISCUSSION
Much of the testimony at the hearing and much of the discussion
in the posthearing briefs of counsel is directed to the question of
the cause of the fatality. Whether in fact the alleged safe.ty violation caused the fatality is not per se an issue in this proceeding.
However, if the alleged safety violation did or could have contributed

1504

to a fatal injury, it would of course be important in determining the
gravity of the violation. The evidence of record would not support a
finding that the fatal injury was in fact the result of the conditions
found herein to exist in Findings of Fact No. 8 and No. 9. However,
the record does show, and I find that the conditions just referred to
could have resulted in or contributed to serious injuries to miners
including fatal injuries. The conditions were very serious.
NEGLIGENCE

18. The conditions of the wire ropes described in Finding No. 8
and of the griphoist cranking level described in Finding No. 9, were
evident to visual inspection. They were or should have been known
to Respondent's management as the result of preshift examirtations.
The conditions had existed at least for some days prior to January 17,
1978.
CONCLUSIONS OF LAW
1. Respondent on January 17, 1978, and prior thereto, was subject to the provisions of the Coal Mine gealth and Safety Act of
1969, with respect to the operation of the subject mine.
2. As an Administrative Law Judge of the Mine Safety and Health
Review Commission I have jurisdiction of the parties and subject
matter of this proceeding.
3. The conditions found in Findings of Fact Nos. 8 and 9 constituted a violation of the mandatory safety standard contained in
30 CFR 75.1725(a).
4. The violation described in Conclusion No. 3 was very serious
and was the result of Respondent's negligence.

5. Based on the above findings of fact and conclusions of law
and considering the criteria in section 109 of the Act, I determine
that an appropriate penalty for the violation is $7,000.
ORDER
Respondent is ordered to pay, within 30 days of this decision,
the sum of $7,000 as a civil penalty for the violation of the mandatory safety standard in 30 CFR 75.1425(a) on January 17, 1978.

4<:1 11u:- -~ -·

.··
L..-·

w: /:./ ck-v? ~/c

James A. Broderick
Chief Administrative Law Judge

1505

Sh. F·· ~~:; .\/ ~:._~~~ ~) ~=~ ::;~/~~ ~--~- ~~~

i·~: ~~: \/ ~ L~: VJ CC·~\:~~'->~ eSS~C;N

OFFICE OF ADi\fil~i~~;1RJ~TiVt:: L!.. VJ ~UDGES
4015. Vv'ILS01~ ~30ULEV,_\h:D
ARLiNGTON, vm.,; INll\ 2.2203

.

Civil Penalty Proceedings

SECRETARY OF LABOR>
MINE SAFETY AND HEALTH
AD.MINISTRATION (HSHA),
Petitioner

Docket No.

BARB

79-61-PM

A.O. No. 40-00840-05001

v.
Knoxville Quarry

rm.AL CEMENT COMPANY.
Docket No. BARB 79-267-P.M
A.O. No. 40-00840-05002

Respondent

Knoxville Hine & Hill
DF.CISlONS
Appearances:

Darryl A. Stewart, Attorney, U.S. Department of
Le1bor> Nashville> Tennes~~ce, for the petitioner;
Norman H. WiJJiams, Esq., Knoxville, Tennessee,
for the respondent.

Before:

Judge Koutras
Statement of tlie Cases

These proceedings concern proposals for assessment" of civil penalties filed by the petitioher against the respondent on October 26,
1978, and January 31, 1979, pursuant to section llO(a) of the Federal
Mine Safety and Health Act of 1977, chaq~ing the respond~nt with
eight alleged violations of certain mandatory safely standards set
forth in Part 56, Title 30, Co9e of Federal Regulations.
Respondent filed timely answers to the proposals, a hearing was
convened at Knoxville, Tennessee, on Hay 23, 1979, and the parties
appeared by and through counsel. Respondent filed posthearing proposed findings and conclusions, but petitioner did not.
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 in these proceedings, and, if so,

1506

(2) the appropriate civil penalties that should he assessed against
the respondent for the alleged violations based upon the criteria
set forth in section llO(i) of the Act. Additional issues rnised
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) ~~ether 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 cifter notification of the
violation.

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

2.

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

3.

Commission Rules, 29 CFR 2700.1 et seq.
Discussion

Docket No. BARB 79-61-PM
The proposals for assessment of civil penalties filed in this
docket allege seven violations set forth in the following citations:
Citation No. 107001, March 14, 1978, 30 CFR 56.9-87, states as
follo~..-The ai::itomaticr~verse alarm for the b w 15 quarry haulage

truck did not function properly \.'hen the truck was backing up to
be loaded by the shovel in the quarry."
Petitioner's Testimoi:iy
MSHA inspector Donald F. Downs testified that respondent operates
a quarry where material is extracted and hauled approximately half a
mile out of the quarry to the primary crusher y;here it is sized and
processed through more crushers, mills, slurry tanks, kilns, and then
to the bagging system. Some of the ingredients for the cement product
come from gyps11m, limestone, clay, and iron, and after the ingredients
are combined, the cement is bagged and loaded on flatbed trucks and
hauled to or loaded into railroad cars.
The inspector confirmed that on March 14, he issueG Citation No.
107001 and served it upon Dave Ross, respondent's safety director,

1507

after finding.that the automatic reverse alarm was not working on the
quarry haul truck LW 15. The haul truck was hauling quarried broken
limestone from the quarry to the primary crusher and the backup alarm
was not working, and prior to issuing the citation, he discussed the
condition with Mr. Ross and possibly the quarry foreman (Tr. 10-14).
Inspector Downs indicated that while an alrirm was installed on
the truck, it was not functioning properly in that it was not emitting
a noise louder than the surrounding noise, and, in fact, was not emitting any sound. He did not notice anyone around the vehicle while it
was operating, and did not notice anyone giving signals prior to the
vehicle being placed in reverse. Prior to his issuing the citation,
Mr. Ross did not say anything about the alarm other than to acknowledge that it was not working, and he indicated that it was going to be
repaired. In Mr. Downs' opinion, any men immediately behind the truck
would be obstructed, and a person would have to be at least 25 to
30 feet behind the truck before the rear view mirror would be able to
pick him up. He does not know how long the truck was operating prior
to his citing the condition. He fixed the abatement time as 3 p.m.,
March 14, 1978, and it was abated at 1:30 p.m. the same day. The
operator corrected the condition in good faith (Tr. 15-18).
Inspector Downs stated that the hazard presented was the possibility of someone being run over, but the chance of this happening
was improbable due to the fact that there was no flow of traffic in
the area during the hour or so he was there. A heavy-duty truck
running over someone could result in a fatality, and Mr. Downs
believed that the condition should have been known by the operator
because the quarry foreman is present in that area at various times
during the day (Tr. 18-20).
On cross-examination, Inspector Downs testified that when the
truck was purchased he was aware of no safety requirement that
required it to have an alarm installed, and he did not know how long
the alarm had been inoperative. He did not discuss the matter with
the truck driver, the driver may or may not have known that the alarm
was inoperative, and because of the outside noise he may not have been
able to hear the alarm while the truck was in operation. Compliance
could have been achieved by having a flagman or an observer present,
but te saw no such person there, although the loader operator was
present. He stated that the truck does back up because it has to
do so in order to dump and he has seen it dump in the past. He does
not remember whether or not he ever rode in the truck, and could not
state whether there was an obstructed view from the driver's seat
(Tr. 25-38).
On redirect examination, Inspector Downs testified that quarry
operations and mills were covered by the 1969 Act and that since the
aileged violation occurred at a quarry, it would have been covered
under the' 1969 Act even though the cement processing plant and the

1508

mill may not have been covered under the 1969 Act. He did not know
whether there was any state, Federal, or other type of law prior to
the enactment of the subject standard that required a reverse alarm.
The front-end loader would not be able to specifically see the truck
driver. Whether or not the truck driver can hear the reverse alarm
depends on how loud the backup alarm sounds and this is because the
alarm must be louder than the surrounding noises. The truck engine is
located in front of the reverse alarm, which, in turn, is in front of
the driver, and the-truck driver must also be able to hear the reverse
alarm (Tr. 38-42).
In response to a question from the bench, Mr. Downs indicated
that he did not review the company records on the particular truck
to see whether it had been previously inspected, and he indicated
that the driver is supposed to check out the truck (Tr. 44). He also
testified that he had been in a truck of the same model before, but
had never been in the driver's seat, and he does not recall the weather
on March 14, 1978 (Tr. 47). Since he has never been in the driver's
seat, he did not know whether the truck driver could see an observer
to the rear (Tr. 51).
On further redirect examination, Mr. Downs testified that the
normal truck-operating procedure is to back up and take a load of
limestone up to the primary crusher. There were three trucks opera ting out of the quarry with one driver and one loader operator on
each truck. The loader operator simply loaded materials on the back
of each truck (Tr. 52).
Citation No. 107002, March 15, 1978, 30 CFR 56.14-6, states as
follows: "The guard for the coal elevator chain drive was not kept
in place. The coal elevator is located over the east end of the kiln
building. The repair crew failed to replace the guard when through
repairing the chain drive."
Petitioner's Testimony
Inspector Downs testified that he issued Citation No. 107002
because the guard for the coal elevator chain drive was not kept in
place, and he served the citation upon Dave Ross. He observed that
the top half of the guard for the enclosed chain drive was off and
lying some 2-1/2 feet from the walkway. The elevator had been
guarded, but the guard was not secured in any fashion, and it was
lying on the ground (Tr. 56-58).
According to Mr. Downs, the bucket coal elevator brought the coal
up to the top of the kiln building where it was dropped onto a screw
conveyor for transportation to a storage tank. The walkway by the
s~rew was full of coal and clinker dust, and the fact that he saw
clinker dust on the walkway and the screw full of coal indicated to
him that the buckets were operating. The kiln was burning, he could

1509

hear the noise of the kiln, and he therefore concluded that the
machinery was operating and thus required a guard. There were no
tools or equipment located near the guard that would give an indication that it was being tested. The coal elevator was enclosed, he
could not see the buckets, and he is uncertain as to whether he ever
saw the chain moving (Tr. 59-62).
Mr. Downs further testified that he does not know whether the
guard was replaced before the equipment was operated, although it is
possible that it was. Other than the inspection party, there was no
one else in the vicinity, and although there was no pedestrian traffic
ar0und the unguarded chain, the coal operator and the crusher operator
pass by the unguarded chain three or four times a day while they are
checking the chutes (Tr. 63-68). Although he did not see a repair
crew at this location, Mr. Downs testified that he knows that the
repair crew was responsiQle for failing to replace the guard because
.they are the only persons in the plant who do this work. Assuming
that the repair crew did in fact fail to replace the guard when they
were repairing the chain drive, it was negligence to leave it
unguarded and not be around it (Tr. 63).
On further recross-examination, Inspector Downs testified that
he does not know how long the guard had been off, and he elected to
cite the condition as a violation of section 56.14-6 rather than
56.14-1 because it was not necessary that the machine be operating
at the time in order to create a hazard. The only reason for anyone taking the guard off would have been either for testing or maintenance. Abatement of the condition was performed immediately and
even before the citation was reduced to writing (Exh. P-2). There
was no guarding by "location," and the provision of section 56.14-6
stating that "the guard shall be securely in place while machinery is
being operated," does not mean to him that the machinery must be in
operation at the time it is observed before a violation can be issued,
and this is because the machinery will eventually be started up and
operated.
In response to questions from the be~ch, Inspector Downs stated
that in his experience, he does not consider guard railings or handrailing to be acceptable in lieu of the guarding requirement. The
walkway in question is not a normal course of travel for people in and
out of the plant, but rather it is a place that somebody would go to
do some specific chore (Tr. 77).
Respondent's Testimony
Alphias K. Klashak, respondent's safety manager, testified
regarding the safety standards issued pursuant to the 1977 Act,
an·d indicated that he had experienced difficulties in obtaining
copies of' the standards. He indicated that in addition to being

1510

covered by state mining laws, safety regulations, workman's compensation laws, union demands, union contracts on safety, respondent also has instituted company policies on safety. There have
been inconsistencies or conflicts between all of the various regulatory groups and bodies, and from 1969 or 1970 until the fall of
1976, respondent was under the jurisdiction of OSHA, and therefore
both the backup alarm and the conveyor had previously been regulated
by OSHA. Respondent did its best to comply with former regulations
under OSHA and is presently trying to comply with regulations under
the 1977 Mine Safety Act.
With respect to the alleged violation pertaining to the backup
horn, Mr. Klashak testified that he spoke with the driver about a week
and a half after the inspection, and during that discussion, he specifically asked the driver if he had complied with company policy by
checking the backup alarm that morning before he took the truck from
the yard. The driver advised him that the backup alarm was working
when he left the yard that morning because he put the truck in reverse
before starting the engine, and he further stated that the truck
engine makes so much noise it cannot be heard anyway. No one else
was in that area other than the loader and the truck driver (Tr. 8990).
Mr. Klashak stated that although the truck backs up to the
loader, the truck driver knows when to stop because he usually watches
the loader operator, and the loader operator signals to him with his
hand, and this is the universal procedure that is followed. Although
respondent has taken steps to put a backup alarm on all of its equip~
ment, and has attempted to maintain such alarms to the best of its
ability, it cannot have a mechanic riding on the truck to repair such
alarms when they break down. The truck in,question was a 1962 model,
and the backup alarm which had been in place for a number of years had
been installed to meet OSHA requirements. The reason why the alarm
was not working was due to a simple maintenance problem, namely, the
vibration of the truck had loosened the activating device and all that
was necessary to correct the condition was to reposition the alarm on
the shift rod and tighten down a screw that was loose (Tr. 91-92).
With respect to the alleged violation involving the chain drive,
Mr. Klashak stated that there is a walkway around the other side of
the top of the conveyor where the drive is located, but this is not
in the area that is frequented by the person who traverses the bucket
elevator and the coal conveyor system once a day to check on the
operation and condition of the chain, belt, and the walkway (Tr. 92).
In his opinion, the machine in question is guarded by location, and
as he recalls, there is some semblance of a guard installed. It is
difficult to gain access to the side of the conveyor because one has
to squeeze through some tight areas in order to reach the unguarded
area. The only people who are in the unguarded area are maintenance
personnel .who would be there to test the machinery and to make necessary repairs when it was not working.

1511

Mr. Klashak stated that even with the guard installed, it is possible to get into the chain drive by sticking one's arm in a little
place around the edge of the shaft, but to do so would be to attempt
suicide. One could reach over from the other side of the conveyor and
possibly get caught in the conveyor while doing so. With the guard on
at all times, and never removed whether the machinery is running or
not, he would not expect a citattion to be issued under normal circumstances. However, there is still the remote possibility that someone
could be hurt with or without the guard, e.g., someone could break his
arm falling on the guard (Tr. 94).
- On cross-examination, Mr. Klashak testified that he was not present when the inspections were conducted and that his knowledge concerning the citations was derived from discussions with others relating
to questions and problems that were raised by the inspection. He does
not know whether the operator of the loader actually waved to the
driver, and he indicated that the truck and the loader both move at
different times. He could not say who moves last, the truck or the
loader (Tr. 95-98).
Mr. David Ross, respondent's pl_ant administrator at the time the
citations issued, testified that respondent has a safety program,
safety guidelines, and conducts inspections. He was present when the
backup alarm citation was issued. He explained that the backup alarm
device failed to operate because the activating switch was mounted on
the shift lever so that when the shift lever was µut into reverse position, it would activate an instantaneous on-off switch, and as long as
the reverse lever was in the reverse position and the switch was activated, the alarm would sound. In this case, the mounting brackets had
worked loose due to the vibrations caused by operating the truck up and
down the roads that day, allowing the switch to move out of the range
of the shift lever. When the shift lever was moved to the re.verse
position, it would not physically activate the switch. These events
could have occurred at anytime, and the truck operator's last trip down
the road could have provided s~fficient vibration to jar the mounting
loose. The truck in question is a heavy-duty truck which makes a lot
of noise, and he was unable to hear the backup horn when driving the
truck with the windows down and with the engine operating at excessive
rpms. When the window is rolled up, he cannot hear the backup alarm.
The front-end loader gathers a bucket of material and waits for the
truck to back up into position to be loaded, and the loader operator
signals the driver either visually or audibly, by blowing the horn,
to let him know when he is in position.
At the time of the inspection, Mr. Ross indicateG that he and the
inspector and an employee member of the plant safety committee were
watching_ the loading operation, but were unable to hear the backup
alarm. No one else is required to be between the loader and the
truck, and normally no one is there. Regardless of whether or not
there is a 'backup horn, the truck driver has to know when to stop,

1512

and he knows when to stop either by seeing a signal or by visually
observing his· position. There is nothing to obstruct the view of the
driver of the front-end loader since he positions himself and his
machine where he can be seen by the truck driver and where he can see
the truck driver. Thus, both parties have at all times full view of
each other, and abatement was achieved immediately (Tr. 106-112).
Mr. Ross testified that he was present when the inspection was
made on the guard on the chain drive. The physical location of the
headwheel, or the top of the elevator, is on a walkway-type platform
at the top of the kiln building, and the chain drive is on the side
away from the normal passageway or walkway where any employee would be
required to be during the normal course of his duties. An employee
would have to walk around both the head wheel of the elevator and the
screw conveyor to reach the chain drive or the elevator. There is a
guard which is fabricated for the chain drive, but he could not recall
when it was installed, although he knows that it was years ago. Other
than to perform maintenance on the chain and drive, he knows of no
other reason for the guard to be removed, and when such maintenance is
performed, the chain drive is always shut down. The guard in question
was put back on before the citation was even written (Tr. 113-115).
On cross-examination, Mr. Ross testified that the truck involved
was a Leternal Westinghouse 27-ton unit with a bed approximately
20 feet in length, and 10 feet wide, and he has seated himself in the
driver's seat of one of the trucks. The truck is equipped with side
view mirrors, and assuming someone was standing 1 foot behind the end
of the truck in the center of the truck, the driver would not be able
to see that person since his view would be obstructed by the end of
the truck bed. At the time of the alleged violation, the truck began
to back up approximately 50 feet from the loader. He simultaneously
observed the full course of reverse as well as the loading process,
and was standing at a position that enabled him to also see the full
side of the loader as well as the full front of the truck. The loader
was positioned at right angles to the direction of travel that the
truck was backing at, and he was able to see the left side of the
driver of the loader. He did not hear any horn, noise, or audible
reverse being emitted at the time of the alleged violation, and he
could not state whether he saw the loader operator put his hands up
or hear him beep his horn. With regard to the chain drive, the repair
crew would be the only persons traveling completely around the housing
walkway (Tr. 115-121).
Citation No. 107004, March 15, 1978, 30 CFR 56.20-3, states as
follows: "The walkway by the coal screen feed over the outside coal
storage tank was not kept clean of coal buildup and clinker dust.
The coal and clinker dust was built up to where footing was
unstable."
Citation No. 107005, March 15, 1978, 30 CFR 56.20-3, states as
follows: "The walkway for the incline coal conveyor belt at the east

1513

end of the kiln building was not kept clean. A build up of clinker
dust and coal on the walkway made the footing unstable. The coal
belt operator traveled this walkway daily to check the coal chutes."
MSHA inspector Downs confirmed that he issued Citation No. 107004
because of the buildup of coal and clinker dust on the coal screw walkway which runs the full length of the screw. Clinker dust is dust
that originates from the clinkers of the kiln, and "clinker" is dried
cement. The walkway involved was elevated, approximately 20 feet in
length, and was being used by respondent's employees. It was located
on top of a coal storage tank which was in a cone shape and it was
approximately 40 feet off the ground. The walkway itself was flat as
opposed to angled, and the clinker dust was crushed up coal which was
compacted rather than being hard (Tr. 121-124).
The clinker dust and coal material was approximately 2- to
2-1/2 feet deep and was.built up throughout the entire length of the
walkway. The width of the walkway was approximately 3 feet, he did
not take a cross-section measurement of the depth of the material, and
he was given no explanation as to why the condition existed. The purpose of the standard cited is to prevent someone from slipping and
falling, and in this case, if an individual had fallen at the highe~t
point, he could have fallen off the walkway onto the tank and then
down approximately 40 feet. While coal is not slippery by nature,
clinker dust is slippery. The condition should have been known to
management, and he believed that respondent was negligent in not
keeping the area cleaned. One person would go to the area to check
it out. He allowed 2 days, that is, until Harch 17, 1978, to abate
the condition, and it was abated on March 15 (Tr. 125-129).
Mr. Downs testified that he also issued Citation No. 107005,
alleging a violation of 30 CFR 56.20-3, and served it upon Mr. Ross.
He issued the citation after walking down the elevator walkway, where
he observed some material, namely, coal and clinker dust, built up on
th2 inclined belt of the conveyor to the top of the kiln building in
certain areas, and the accumulation ranged from 6 to 8 inches in depth.
The buildup of the material across the width of the sidewalk would
fluctuate where it would be rolling or dipping in and out. However,
the material had accumulated throughout the entire length of the walkway with the greatest accumulation at the top rather than towards the
bottom. The coal crusher operator was exposed to the accumulation
since he walked up the belt or walkway when he checked the chutes to
see if there was any plugging. If an employee slipped and fell on the
walkway, it is possible that he could have fallen completely off the
walkway. In his opl.nion, the condition should have been known by the
operator, and at the time that he issued the~citation he did not
believe that the operator exercised any care in preventing the condition from occurring. He allowed 2 days for abatement, that is, to
March 17, 1978, but the condition was abated the same day that the
citation was issued, that is, March 15, 1978, at 3:45 p.m. (Tr. 131135).

1514

On cross-examination, Mr. Downs testified that both conditions
were corrected and abated before he reduced the citations to writing.
The unsure footing would result from the material rolling or moving
around, and while the handrail on the walkway would protect a person
from falling off, it would not adequately protect a person from
falling off in this case because of the accumulation and material
buildup on the walkway which placed the handrail at knee level. He
did not know how long it took for the material to accumulate, and he
did not know how often one would use the walkway (Tr. 135-140).
Mr. Downs testified that Mr. Ross told him there was a leak in
the breakover screw point. Hr. Downs conceded that when he filled out
his "inspector's statements," he noted that the condition or practice
cited in Citation Nos. 107004 and 107005 could not have been known or
predicted. With regard to gravity, he indicated that it was improbable
that any harm would have occurred as a result of the cited conditions,
and in fact the condition was abated before the citations were ever
written up. His last prior inspection of the mine was around 1977,
and he is unable to remember whether he cited the same walkway or
not (Tr. 141-151).
Mr. Downs stated that the cleanup process took 2 or 3 hours
since the material involved was not solidified like cement. The
walkway around the screw consisted of loose material, namely, crusher
coal with clinker dust m:i_xed jnto it, and the elevated inclined walkway had solid material on it which he believed was coal with clinker
dust spilled onto it. The accumulation did not move, nor was it
unstable, and it was possible to trip over it due to the fact that it
was not completely level. It was not "clean and orderly," and one had
to hold onto the handraU in order to walk down the walkway (Tr. 159160). Approximately four or five men were dispatched to clean up the
walkways, and this resulted in the walkway being cleaned up before the
citation was written (Tr. 161-162).
Respondent's Testimony
Mr. Klashak testified that the material on the walkway that was
cited in Ci ta ti on No. 107004, consisted of clinker dust and coal dust,
the coal dust being of a course, grainy material that has not been
pulverized into the finest that is necessary to feed the furnace at
that point, but it is fine with a consistency a little bigger than
course sand. In explaining the cause of the accumulation, he indicated that when the material is traveling up the conveyor, if a
blockage occurs in the conveyor system; in the screw conveyor, or any
of the transfer hoppers, some moist material may become solidified and
it can stop in the mouth of the conveyor, build up a pile of material,
dump it on the conveyor, and in a very short period of time, there can
ba an accumulation of 2-1/2 feet or more. Dampness or moisture in the
air could cause the clinker dust to "set-up" in a very short period of
time, and the crew had not yet had an opportunity to clean up, and

15.LS

this would. also apply to Citation No. 107005, since it involved similar conditions (Tr. 167-170). He was not present on the date that
the citations were issued. The platform walkway was approximately 20
to 30 feet long, but four or five men would not have room to be on
the platform at the same time because the spill was not the whole
length of the conveyor walkway (Tr. 170-175).
Citation No. 107006, March 15, 1978, 30 CFR 56.14-1 states: "The
pinch point between the take-up pulley and the cross conveyor belt that
runs between the coal crusher and incline coal conveyor belt was not
guarded. The coal belt operator walks by this takeup pulley several
times a day."
Petitioner's Testimony
Inspector Downs confirmed that he issued Citation No. 107006,
citing a violation of section 56.14-1, because there was an exposed
pinch point between the belt and the takeup pulley. The "pinch point"
is the place of initial contact where the belt and pulley join. The
takeup pulley was accessible, there was a walkway immediately next to
it, the pinch point was approximately 6 to 8 inches above the walkway,
and the walkwiy was within 4 or 5 inches of the pulley belt. He
believed it was possible for a person to become caught in the pinch
point and be injured (Tr. 180-183).
Mr. Downs testified that he has never seen anyone injured by
being caught in a pinch point, nor has he investigated any such
accidents, but MSHA "fatalgrams" occasionally come through his office
where such incidents are reported, and he has seen films concerning
such hazards (Tr. 184).
On cross-examination, Mr. Downs testified that a guard is something that will cover a tail pulley, a head pulley, conveyor belt
drive, and takeup pulley, etc., at the pinch point. At the time
he observed the tail pulley, there was no guard on it, but there
was a guard on it at the time he abated the citation. Despite the
presence of a guard, it is humanly possible for someone to get into
a pinch point if a person wishes to do so. In his view, section
56.14-1 requires that all kinds of pulleys be guarded, and even
though ~he standard specificially states that head, tail or takeup
pulleys.have to be guarded, the language "and similar exposed moving
machinery parts" covers the citation in question (Tr. 193). He could
not recall the size of the unguarded opening, and even though the
pulley was designed and installed under other safety regulations, he
would still cite it under section 56.14-1, if it were not guarded. A
corrugated metal covering was put over the tail pulley in order tb
abate both Citation Nos. 107006 and 017089, and in his opinion, good
faith was shown (Tr. 191-195). On Citation No. 107006, he indicated
tliat the condition "could not have been known or predicted," but on
Citation ~o. 107089, he indicated that the condition "should have been

b16

known to the operator" since there were other guards on other takeup
pulleys in the plant. It was possible for someone to trip on the
walkway itself, although he did not cite the walkway. There were
handrails on the walkway, and it would not matter whether or not
machinery was running insofar as a hazard is concerned. He would
issue a citation regardless, sinces he assumes that machinery is
going to be operating in the future, and the coal crusher operator
walked through the area (Tr. 195-198).
Mr. Downs testified that the reason the "good faith" portion of
his inspector's statement was not filled out on Citation Nos. 107006
and 107089, was due to an oversight on his part. He then corrected
himself with respect to Citation No. 107006, and stated that since
Citation No. 107006 was not abated the same day that it was issued,
it is customary for an inspector to fill out a second sheet pertaining to good faith. He did fill out a second sheet, however, but he
has no idea what he indicated on it with respect to whether the condition was corrected within the time specified for abatement, or whether
management took extraordinary steps to gaj_n compliance. He assumes
that extraordinary steps were taken to gain compliance, since the condition h2d been corrected when he arrived at the mine and he believes
that Mr. Ross told him that the condition was corrected within the
time specified. With respect to Citation No. 107089, Mr. Downs indicated that the condition was abated within the specified time and he
believes that management exhibited good faith. Even with the recommended guards installed, it would still be possible for someone to go
to the plant and stick his hand in both pulleys that are involved in
Citation Nos. 107006 and 107089, assuming that person really wanted to
get into the pulleys (Tr. 199-202).
Respondent's Testimony
Mr. Klashak testified regarding Citation Nos. 107006 and 107089,
and he indicated that there are <lifferences in different kinds of
pulleys. The American National Standards Institute (ANSI) recognizes that in any conveyor system certain pulleys are guarded by their
relative position inside the conveyor frame. At the locations cited,
there was a kickplate to keep tools or a foot from protuding over the
walkway, and there was also a stop cord, and these were safety devices
installed by respondent. Despite the fabrication of a guard over the
particular bend pulley cited in Citation No. 107006, it did not completely seal the bend and it is still reachable by someone's hand.
It would be possible for someone to lay down on the conveyor and stick
his hand in, and it would also be very easy for someone, if he wanted
to do so, to get his foot in over the guard and over the existing
kickplate. In his view, there has been no substantial change in any
danger or hazard from that which existed before the citation was
issued. Prior to the time the citation was issued, there was no
hazard, and if any hazard did exist it would have been only caused
by someone intentionally trying to injure himself (Tr. 210-214).

1517

Mr. Klashak stated that with regard to Citation No. 107089, as
well as Citation No. 107006, the conveyor system was designed according to ANSI Standards, and it also had a stop cord and a kickplate.
In his opinion, someone could intentionally get to the pulley cited,
even after a guard was put on it, and there was a nonslip, grid surface on the walkways near both of the pulleys in question (Tr. 214215) •.
On cross-examination, Mr. Klashak testified that the kickplate
on both conveyors is approximately 4 inches high and the top of the
bend pulley is approximately 4 inches above the base of the conveyor
walkway at the point where the alleged violation occurred. He was
unable to say how high the pulley is located above the kickplate, and
he did not know how long the belts had been installed, but he did know
that they were installed prior to the time he came to work for the
respondent (Tr. 219-220). He believed it would be extremely remote
for anyone to come in contact with the pulley, except if it were done
intentionally (Tr. 221).
Citation No. 107007, March 15, 1978, 30 CFR 56.11-1, states:
A safe access was not provided for the kiln operator
to the kiln floor due to the excessive material buildup.
An area 40 feet by 40 feet on the kiln roof over the kiln
controls had approximately 20 to 24 inches of clinker dust
builtup on the roof. The cross beams supporting the roof
in this area were bent due to the weight on them.
Petitioner's Testimony
Inspector Downs confirmed that he issued and served upon Dave
Ross, Citation No. 107007, alleging a violation of 30 CFR 56.11-1,
after finding an excessive material buildup on the roof above the
kiln floor. Due to the conditions, he believed that safe access was
not provided for the kiln operator, and people who travel through
that area. The roof area above the kiln floor was approximately
40 feet by 40 feet, and the material there was approximately 20 to
24 inches deep. Prior to the issuance of the subject citation, he
had read an MSHA fatalgram concerning two incidents of fatalities
resulting from roof cave ins due to clinker dust buildup, and he was
of the opinion that due to the buildup of material on the roof in
question, the person working below the roof was not provided safe
access (Tr. 228-231). He could not recall what he stated in his
inspector's statement regarding the elements of negligence or gravity,
and he did not know exactly how many people were working on, or had
access to, the kiln floor (Tr. 234).
On cross-examination. Mr. Downs indicated that he issued the
citation because of "alarm" over the previous incidents brought to
his attention, and he also received complaints from some of the men

1518

working in the area. He cited section 56.11-1 because this was the
closest standard available, and he confirmed that everyone does not
go under the kiln roof to reach their work station (Tr. 234-235). He
looked at the roof crossbeams and thought they were bent due to the
weight of the dust buildup, but he did not know how long the crossbeams had been in that condition. Even if he knew, he would still
have issued the citation, because be believed the roof was going to
"imminently fall" (Tr. 237). Although HSHA technical support is
available to test crossbeams, he talked to no structural engineers
about the conditions, performed no tests to determine the structural
integrity of the crossbeams, and he did not know the weight of the
material on the roof (Tr. 240).
Respondent's Testimony
Mr. Klashak testified that the mill where the roof was located
has since been closed down, but he viewed the roof about a week after
the citation issued. After the roof was cleaned, the bend in the
crossbeams was still there and he was informed that the "bend" condition of the beams had existed since the late 1950's (Tr. 245). He
did not see the conditions cited since they were abated when he viewed
the area (Tr. 246). Based on the buildup described by the inspector,
he believed it was doubtful that the buildup was heavy enough to cause
the deflection in the crossbeams. Abatement was achieved immediately
(Tr. 248). Work is performed under the roof, and at the time the
citation was issued, a decision had been made to shut down that
portion of the mill, and it has in fact been closed down (Tr. 255).
Citation No. 107008, March 16, 1978, 30 CFR 56.9-2, states:
The brakes for the 922-B Catepillar front end loader
were not functioning properly. The loader was loading a
dump truck at the gypsum stockpile. There were no persons
in the immediate area. This condition had been reported to
the yard foreman on Friday the 10 of March at the weekly
safety meeting.
Petitioner's Testimony
MSHA's Inspector Downs testified that he issued the citation
because the brakes on the front-end loader were not functioning in
that they would not stop the equipment. The loader operator told
him that the brake conditions were previously reported at a safety
meeting held on March 10, and two or three times earlier than that,
and that he had used the loader after making those reports. He
issued the imminent danger order because the loader was operating
.throughout the plant around pedestrian traffic and the only way it
co~ld stop was for the operator to drop the bucket and "throw it in
reverse." ,There was no pedestrian traffic at the time of the citation,
and the loader was operating in the gypsum storage area, which was a

1519

flat area, and it was loading a truck. He issued the order to take
the loader out of service to repair the brakes, and to preclude anyone
from being run over or the loader turning over on a hill. The loader
was taken out of service immediately, and Mr. Ross arunitted to him
that he knew the loader had no brakes, but that it would be taken out
of service (Tr. 258-264).
On cross-examination, Hr. Downs indicated that he was alone at
the time of the inspection, and was on his way to the electrician shop
after lunch when he happened to see the loader. He was aware of the
requirement that a representative of the operator and miners should be
given an opportunity to accompany an inspector. He stopped by the
mine office in the morning to let them know that he was on an inspection, Hr. Ross was with him in the morning, and he was certain he
issued other citations. He was on his way back from lunch when he
saw the loader and cited it (Tr. 268-276). Mr. Downs stated he asked
the loader operator to drive forward and brake his machine, and when
he did, it would not stop (Tr. 285).
Respondent's Testimony
Dav:!:_~_!~o~ confirned Inspector's Downs' testimony with respect
to the manner in which he conducted his inspection. After Mr. Downs
took the loader out of service, he (Ross) instructed the operator
to drive it to the garage some 100 yards away so that a mechanic could
determine the brake problera. Mr. Ross stated he was aware that the
machine had a problem with the braking system and had heard that it
had something to do with a leaking master cylinder. The delay in
repair was caused by the fact that another production loader was being
repaired, and he believed the loader cited could still be operated
with reasonable care while the other one was being repaired (Tr. 280283). He confirmed that he was not with Mr. Downs when the loader was
cited, but had agreed to meet him after lunch (Tr. 283).

Docket No. BARB 79-267-PM
The proposal for assessment of civil penalty filed in this
docket alleges one violation of the provisions of 30 CFR 56.14-1,
as set forth in Citation 107089, issued on August 8, 1978, which
states as follows:
The take-up pulley along side of the primary crusher
belt walkway was not guarded so a person could not: come in
contact with the pinch point. An employee walks this walkway four or five times a day. The pinch point is approximately 6 to 8 inches above the walkway.

Petitioner's Testimony
Insp,ec tor Downs confirmed that he issued Citation No. 107089 and
served it on Mr. Ross. The takeup pulley was alongside the walkway

1520

within 4 or 5 -inches away, and some 6 to 8 inches above the walkway,
and a person could come in contact with it (Tr. 185-186). Abatement
was achieved within the time permitted (Tr. 186). With respect to the
negligence involved, he indicated on his inspector's statement that
the condition "should have been known by operator," and based this
conclusion on the fact that other takeup pulleys alongside the walkway were guarded. This was the only unguarded takeup pulley alongside this particular walkway (Tr. 187). Prior to March 14, 1978,
he had been at the site of the subject citation, and had previously
issued notices to respondent for lack of guards. He does recall,
under the 1969 Act, however, having issued one notice for an
unguarded takeup pulley which subsequently was guarded. Approximately 5 months after issuing Citation No. 107006, he issued Citation No. 107089, for the same violation (Tr. 187-190).
Respondent's Testimony
Mr. Klashak previously testified concerning this citation and
that testimony has been considered by me and is incorporated herein
by reference.
Findings and Conclusions
Docket No. BARB 79-61-PM
Citation No. 107001--Fact of Violation
Respondent is charged with a violation of 30 CFR 56.9-87, which
states:
Heavy duty mobile equipment shall be provided with
audible warning devices. When the operator of such
equipment has an obstructed view of 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.
[Emphasis
added.]
The standard requires that heavy-duty mobile equipment be provided with audible warning devices. I believe the obvious intent of
this standard is to protect against miners being run over or otherwise injured by such equipment while it is operating in reverse, and
the audible alarm requirement is obviously intended to provide such
miners with an audible warning that such equipment is in operation
in or around their particular work environment. The standard also
requires that such heavy-duty equipment be provided with an automatic
reverse signal alarm which is audible above the surrounding noise
level. However, this second requirement is only applicable "when the
op.era tor of such equipment has an obstructed view to the rear." In
the event.that the view to the rear is not obstructed, the. standard

1521

permits an observer to be present to signal when it is safe for the
equipment to back up. If such an observer is present, the equipment
need not be provided with a reverse alarm.
The citation asserts that the haulage truck in question had a
malfunctioning reverse alarm which was not operating when the truck
was backing up to be loaded. Since the petitioner has the burden of
proof to establish the alleged violation, it is incumbent on the
petitioner to establish that the truck in question was "heavy-duty
mobile equipment," that it was being operated in reverse at the time
the alleged infraction was observed, that the reverse alarm was in
fact inoperative, an~ that the operator of the truck had an
obstructed view to the rear.
In support of the citation, petitioner presented the testimony of
the inspector who observed the truck in operation and issued the citation. He testified that the truck was a heavy-duty truck and that a
backup alarm was installed on the truck. However, after viewing the
truck operating in reverse, and hearing no sound being emitted from a
backup alarm which was installed on the truck, he surmised that the
alarm was inoperative, and in effect treated the situation as if no
alarm was in fact provided. However, the inspector indicated that he
never sat in the driver's seat and made no determination as to whether
the truck d~iver could see anyone to the rear while he was backing up.
Although he expressed an opinion that any men working to the rear of
the truck would be obstructed from view by the truck operator and
that they would have to be positioned s01ae 25 to 30 feet behind the
truck to be brought within the view of the rear-view truck mirror, I
cannot conclude that thj_s conclusion on his part is supported by anything other than mere conjecture on his part. The inspector did not
interview the truck driver, he did not position himself in the
driver's seat, and he testified that he observed no one working
around the vehicle and saw no one giving any signals to the driver
bPfore putting the truck in reverse.
I find that the evidence and testimony adduced with respect to
this citation supports a finding that the truck in question was in
fact heavy-duty mobile equipment, and that fact is not in dispute.
l further find that while the truck was provided with a backup alarm
at the .time of the citation, it was inoperative and emitted no sound
which was audible above the surrounding noise. As a matter of fact,
it emitted no sound at all and respondent has not rebutted this fact.
Further, although respondent attempted to establish that a lo~der
operator was in a position to either give hand signals to the driver
or sound his loader horn as a signal, I do not believe that the standard intended that someone operating another piece of equipment may
also serve as an observer. I believe that the observer contemplated
by the standard is a person such as a flagman who is in a positi.on
to devote his full time and attention to the operation of the truck
and to insure that anyone on foot in the area is not exposed to any

1522

danger of beirig run over. It seems to me that someone operating a
loader would be more concerned with posttioning the truck in such a
fashion to facilitate loading and that his attention to that chore
would preclude his observing other pedestrian traffic in the area.
Having established that the truck was of the kind that required
an audible alarm while operating in reverse, and having established
that the alarm was inoperative, the next critical question presented
is whether the petitioner has established that the view to the rear
was obstructed. I conclude and find that the petitioner has not
established this fact by any credible and probative evidence. Since
the inspector obviously issued the citation because he believed someone out of the so-called obstructed view of the driver could be run
over while the truck was operating in reverse, it was incumbent on
him to establish the rear-view obstruction. It seems to me that the
most logical way to establish this fact is to either talk to the truck
driver who should be able to tell the inspector whether or not he has
an obstructed view. If the driver refuses to talk to the inspector,
there is nothing to preclude MSHA from calling him as a witness to
testi.fy. Another most logical method is for the inspector to sit in
the driver's seat of the truck and take 2 look for himself. In this
case, the. inspector did neither. Although respondent's witnesses
testified on cross-examination that a person standing a foot behind
the truck would be obstructed, I believe that the burden of initially
establishing this point rests with the petitioner. All too often in
proceedings of this type, the parties will engage in last-minute,
after-the-fact, semantical boxing matches trying to reconstruct and
back fill with purported facts to support their positions. I simply
give little or no weight to such last-minute trial tactics. The
citation is VACATED.
Citation No. 107002--Fact of Violation
30 CFR 56.14-6 provides that "[e]xcept when testing the machinery,
guards shall be securely in place while machinery is being operated."
Respondent asserts at page 3 of its posthearing brief that "the
citation stated that the coal elevator chain drive guard was removed
for repair." This is not altogether accurate. Respondent is charged
with· a failure to keep the coal elevator chain guard in place. The
statement in the citation indicating that "the repair crew failed to
replace the guard" is a speculative gratuitous statement ma<le by the
inspector in his attempt to explain why the guard was not in place
when he observed the condition. The inspector's testimony that he
observed the top half of the chain drive guard off the equipment and
lying next to the walkway is unrebutted, and I find that it supports
the citation. Respondent has presented no credible evidence that the
equipment was being tested, and the fact that ihe inspector did not
specifically recall whether the chain drive was in fact moving at the
time he observed that it was unguarded may not serve to vitiate the

1523

citation. Al though the standard does indicate that the guard must be
in place while machinery is being operated, and makes an exception
when it is being tested, the fact is that in this case the inspector's
observations concerning the presence of coal in, on, and around the
buckets, coupled with the fact that the kiln was burning and operating,
led him to conclude that the machinery j_n question was in operation.
Respondent has not rebutted this fact; nor has respondent presented
any evidence that production was not going on, that the equipment was
not operating, or that it was down for maintenance or testing. In
these circumstances, I conclude and find that petitioner has established a prima facie case and has established that the guard was in
fact not in place. The citation is AFFIRMED.
Gravity
The testimony establishes that the cited equipment had been
guarded, but that part of the guard had been taken off and not
replaced. The area in question was apparently not heavily traveled,
there is no indication as to how long the portion of the equipment
was left unguarded or whether anyone was exposed to any hazard, and
abatement was immediate. In these circumstances, I cannot conclude
that the citation was serious.
Negligence
The guard in question was apparently removed to facilttat:e some
maintenance work, and someone apparently forgot to put it back on.
Since it was lying in full view, I believe that it is reasonable to
expect that someone inspecting the belt line would have observed it,
and the inspector indicated that mine personnel would have occasion
to pass by the area dur.ing the shift. In the circumstances, I conclude that the respondent failed to exercise reasonable care to
insure that the guard in question was kept in place as required by
section 56.14-6, and that its failure to do so constitutes ordinary
negligence.
Goo<;l yaith Compliance
The evidence establishes that the condition cited was corrected
immediately and I find that respondent achieved rapid abatement of
the citation.
Citatiori Nos. 107004 and 107005--Fact of Violations
These citations charge the respondent with alleged violat~ons of
the provisions of 30 CFR 56.20-3, which provides as follows:
At all mining locations: (a) Workplaces, passageways,
storerooms, and service rooms shall be kept clean and

1524

orderly. (b) The floor of every workplace shall be maintained in a clean and, so far as possible, a dry condition.
Where wet processes are used, drainage shall be maintained,
and false floors, platforms, mats, or other dry standing
places shall be provided where practicable. (c) Every
floor, working place, and passageway shaJl be kept free
from protruding nails, splinters, holes, or loose boards,
as practicable.
The inspector's testimony concerning the prc~sence of accumulated
coal and clinker dust, including his measurements regarding the extent
of the accumulations and buildups of this material at the two locations
cited has not been rebutted by the respondent, and I find and conclude
that petitioner has established the violations as cited. The standard
cited requires workplaces, passageways, and the floor of workplaces be
maintained in a clean condition. The evidence establishes that the
walkways in question were used by employees in the course of their
work, and they therefore are "working places" within the meaning of
the definition of that term as used in section 56.2 of the regulations.
Although one may view the intent of the standard as a "housekeeping"type of standard, the fact is that the locations cited were not kept
clean as required by the standard. And, the fact that the inspector
did not specifically cite the (a), (b), or (c) clauses of section
56.20-3 does not, in my view, render the citation illegal. The citations and testimony of the inspector adequately and specifically
describe the conditions which the inspector believed were in violation of the cited standard, and I conclude and find that they support
the citations which were issued.
Respondent's defense is based in part on an assertion that the
spillage of material in question was caused by a sudden interruption
and blockage which were promptly abated, and an argument that there
are periods during the pro due tion cycle, such as construe tion and
re!)air work, when obstructions do exist, and a suggestion that walkways or passageways simply cannot always be kept clean and orderly
(Brief, p. 4). These are mitigati.ng factors which I believe may be
considered in connection with the criteria of negligence and good
faith compliance, but they may not serve as an absolute defense to
the violations. I take note of the fac:t that one does not reasonably
expect a mine or plant to be "spic and span," and that the production
process does generate dust, dirt, eta. However, the extent of the
coal and clinker dust accumulations described by the inspector in the
citations in question go beyond any reasonable "fall-out" that one
would ordinarily expect in any production mine or plant. And, when
such conditions deteriorate to the point where they constitute a
potential hazard to the work force, one can reason&bly expect that
they be cleaned up.
During the course of his testimony in support of the two citations in question, the inspector candidly and honestly admitted that

1525

when he filled· out his inspector's statements with respect to these
citations, he checked the box under the negligence portion of the form
which states "[c]ould not have been known or predicted; or occurred due
to the circumstances beyond the operator's control." Ile did so at that
time because he knew that the assessments levied for these citations
would be increased if there was any indication of negligence on the
part of the operator and he "didn't want the companies to be fined so
much" (Tr. 161-163). In justiUcation of his actions in this regard,
the inspector alluded to the fact that mine inspections under the
newly-enacted 1977 Act were a "new ball game" for operators such as
the respondent, and he apparently assuned that the operator in this
case would not be aware of the newly-enacted requirements (Tr. 162).
Respondent has now seen fit to raise this as an issue, and at page 5
of its brie~ asserts that the inspector ''was obviously relieved to be
able to express the hardship on the operator or trying to enforce
brand new rules under an admjnistrative scheme that was unfair and
capricjous," and that respondent should not be penalized in light of
this testimony.
Although the actions by the inspector with respect to the foregoing incident raises a serious question of his credibility concerning his testimony of negligence connected with the citations, his
candid admissions must be taken in context and must be considered in
light of the then prevailing circumstances. In this regard, I take
note of the fact that the citations here were issued on March 15,
1978) less than a week after the effective date of the 1971 Amendments to the 1969 Act, and while it is true that metal and nonmetallic
mine operators were previously subjected to citations for violations
of mand':_ltorz standards promulgated under the now repealed MC!t.o.l and
Nonmetallic Mine Safety Act, that statute did not provide for the
imposition of monetary civil.penalties for proven violations. In
this limited context, the only ~ignificant change resulting from the
enactment of the 1977 law was the fact that such mine operators are
now liable for civil penalties for violations of mandatory standards,
and in this sense it is a "new bdll game" as suggested by the inspector. The enactment of the 1977 Act in no way lessened the responsibility of a covered mine operator to insure compliance with mandatory
standards. Respondent's suggestion that it cannot be held accountable
for or liable for the citations issued here is REJECTED, and the citations issued are AFFIRMED.

I find that the conditions concerning the accumulations of
clinker dust on the walkways constituted serious situations. The
extent of the accumulations were such that it could have resulted
in someone falling or tripping on the walkway, and possibly falling
over the railing. In the circumstances, and notwithstandlng the
fact that the conditions were promptly corrected, I find that the
citations were serious.

1526

Negligence
In view of the extent of the accumulations of materials on the
walkways, it is difficult for me to understand why corrective action
was not initiated before the inspector happened on the scene. I can
understand a sudden blockage or malfunction resulting in leakage of
materials onto the adjacent walkways, but I cannot understand the
apparent disregard for prompt cleanup ~efore the arrival of the
inspector on the scene. Although the inspector's credibility was
damaged somewhat by his candid admissions with respect to the
filling out of his inspector's statements, the fact is that there
is ample evidence of record independent of those statements to support findings that the respondel:t failed to exercise reasonable care
to discover the accumulations or to clean up the walkways prior to
the arrival of the inspector on the scene. Accordingly, I find and
conclude that the failure of the respondent to exercise reasonable
care constituted ordinary negligence as to both citations in
question.
Good Faith Compliance
I find that the record supports findings that the respondent
exercised rapid abatement in correcting the conditions cited in both
citatj_ons.
Citation No. 107006--Fact of Violation
Thj_s citation charges a violation of mf!ndatory standard 30 CFR
.':i6.1L;-l, which states: "Gears; sprockets; chains; drive, head, tail,
and takeup pulleys; flywheels; couplj_ngs; shafts; sawblades; fan
inlets; and similar exposed moving machi~e parts which may be contacted by persons, and which may cause injury to persons, shall be
guarded."
The inspector cited the violation because he obviously b~lieved
that someone walking by the adjacent walkway could possibly become
caught in the pulley pinch point. Respondent's witness Klashak identified a photograph (Exh. R-3) of the puley in question and stated
that. he took it a week or so after the citation issued. The inspector tes_tified that the pulley pinch point, where the conveyor belt
and pulley join, was ripproximately 6 to 8 inches above the adjacent
walkway and that the walkway was some 4 or 5 inches from the belt.
In defense of the citation, respondent argues that the cited
pulley was in fact a "bend pulley," and since a "bend pulley" is not
specifically included in section 56.14-1, the standard does not apply.
In addition, respondent argues that the reason the "bend pulley" is
not specifically included in the standard is the fact that such
pulleys were exempted out of recognition of the fact that due to their
position 'on a belt -system, they do not require guarding. Further,

1527

respondent argues that the kickplate installed on the nonskid walkway
would prevent someone from projecting his foot ov~r the edge of the
walkway and into the pinch point, and that a stop cord along the
walkway would have stopped the conveyor belt instantaneously upon contact with the cord. Finally, respondent suggests that if any hazard
did exist, it could only be the result of someone deliberately placing
his hand or foot into the pinch point, and that even with the installation of the metal guard to abate the citation, someone could still
deliberately reach into the pinch point.
Respondent's first defense is rejected. I conclude that on the
facts here presented, the fact that a "bend pulley" is not specifically mentioned in the standard does not render the citation illeeal.
The standard refers to "similar exposed moving machine parts," and I
conclude that the pulley in question, as described by the witnesses,
is such a similar moving part and comes within the scope and intent of
the standard, and respondent has not produced any credible evidence to
convince me otherwise. As for the pref~ence of the kickplate and stop
cord, while this may mitigate the gravity of the situation, I am not
convinced that those devices may serve as substitutes for the guarding requirements of the cited standard.
As I previously stated in a recent decision concerning the guarding requirements of section 56.14-1, Massey Sand and Rock Company,
Docket No. DENV 78-57 5-PH (June 18, 19-79), petition for discretionary
review dcnicc!_ (July 27, 1979), I beU.eve t11:'1_t_\~Ti-e;1ai1-j_r1spect-orcites
a violation of this section of the mandatory standards, it is incumbent on him to ascertain all of the pertinent factors which leads him
to conclude that in the normal course of his work duties at or near
such exposed machine parts, an e!llployee is likely to come into contact
with such exposed parts and be injured if such parts are not guarded.
Here, it seems obvious to me from the inspector's testimony in support
of the citations, that he relied chiefly on the fact that a person
coming in contact with such unguarded machine parts could possibly be
injured, and that conclusion was based on certain MSHA reports which
apparently reflect that employees who are caught in unguarded pulleys
are in fact injured. While I accept the general proposition that a
person who becomes entangled in an unguarded machine part is likely to
be injured, this conclusion simply begs the question as to whether a
specific pulley location in a mine is required to be guarded pursuant
to the requirements of section 56.14-1. In this regard, the key words
of the regulatory language, "may be cont::icted," is critical to any
determination as to whether the standard has been violated. As I construe that language, it means that on a case-by-case basis, petitioner
must establish that the unguarded area in question, by its location
and proximity to the comings and goings of mine personnel, exposes
them to the hazard or danger of being caught in the unguarded pulley.
11). my view, this question can only be determined by consideration of
the preva,iling circumstances at the time the citation issued.

1528

In the circumstances here presented, the evidence establishes
that the exposed pulley pinch point was located above the level of the
adjacent walkway which itself was within 4 or 5 inches of the conveyor
belt. The inspector was concerned that someone walking along the belt
could fall into the exposed area in the event he were to trip on the
walkway. Although the inspector could not state the dimensions of the
unguarded area in question, I believe the unguarded area was situated
in such a location that would expose someone to the danger of being
caught in the pinch point in the event they were to trip or fall while
walking along the walkway. The question of the likelihood of this
happening goes to the gravity of the situation and not to the question
of whether or not the pin~h point was readily accessible. The citation is AFFIRMED.
Gravity
Although the adjacent walkway was protected to some extent by a
stop cord, kickplate, and handrail, thus mitigating somewhat the possibility of someone being exposed to the unguarded ptnch point, the
fact is that those devices would not prevent someone's leg or arm
from becoming entangled in the unguarded pulley area were they to
trip or fall on the walkway, which was in close proximity to the
unguarded area. Further~ while the chances of this happening may
have been somewhat remote, a hazard did exist and I find that the
condition cited was serious.
Negligence
Under the circumstances presented here, namely, the fact that
the operator had installed kickplates, stop cords, and handraiis, I
believe it is reasonable to assume that the respondent could not
reasonably have known of the fact that the pulley in question was
required to be guarded, and in th circumstances, I cannot conclude
that the respondent was negligent.
Good Faith Comnliance
The evidence establishes that the respontlent achieved rapid compliance of the cited condition and that is my finding.
Citation No. 107007--Fact of Violation
Respondent is charged here with a violation of the provisions of
30 CFR 56.11-1, which requires that "[s]afe means of access shall be
provided and maintained to aJ.l working pJ.aces." In this instance,
the inspector cited the violation after observing accumulations of
clinker dust on the roof of the kiln. He described the roof area
which was allegedly covered as 40 feet by 40 feet and described the
ex.tent of. the accumqlation as "approximately 20 to 24 in1.:hes of
clinker dust built up on the roof." The citation also asserts that

1529

the crossbeams supporting the roof were bent due to the weight of the
accumulated dust. He was concerned that the person working in an<l
under the kiln roof area and persons passing under or through the
roof kiln area were exposed to the danger of a roof collapse, Rnd
his alarm in this regard was triggered by the fact that he was aware
through the reading of HSHA fatalgrarrs of identical roof cavc·-ins in
other areas. Although the inspector indicated tho.t MSHA technical
support advice was available to him through consultations with structural engineers to determine the structural integrity of the kiln
roof, he did not avail himself of this advice, no tests were performed to determine the strength of the roof support beams, and while
he calculated and estimRted the extent of the accumulations, he did
not determine the weight of the materials which he observed on the
roof. In addition, h0 made no inquiries as to the length of time that
the materi~ls were on the roof, the length of time that the support
beams were in the alleged "bent" condition, and while he alluded to
the fact that he had received some coBplaints from some of the men,
there is no indication in the record that he attempted to interview
any of the men tn ascertain some of these details and none of the men
were. called as witn:.::sses. He simply viewed the conditions, "thought
the crossbeams were bent due to the weight of the accumulated materials," and concluded that the roof w0uld "imminently fall."
When asked on cross-examination whether he was aware of the fact
that the crossb~ams had been in a bent condition for decR<les, the
j_nspc.c ten· r:tnswerPd that "[a] t the time} I wasn't worried about that"
(Tr. 237). As a matter of fact, he stated that even if bends had
been present for dccadPs, it would have made no difference to him
because he believed the roof was going to "imminently fal.l" (Tr. 237).
When nsked whether he issued the d.taU.on out of aJarm due to the
previously-reported incidents, he responded "Yes, plus the fact that
I had 12;ot a few complaints from the 1i1en working in that area" (Tr.
235). When asked whether he really knew what standard to cite, he
responded "You can look completely through that book and you won't
find nothing else'' (Tr. 235). When asked whether he considered the
situation presented to be an inmi.nent danger, he answered that he did
not, and that if he did he would have issued an imminent danger withdrawal order (Tr. 238). ln short, his conclusion that the roof was
about to fall in as a result of the weight of the accumulations was a
pure judgment call on his part ~rnd he candidly admitted that this was
the case (Tr. 240). He also candidly admitted that faced with the
reports of previous roof cave-ins, "I had very definitely been told
in my office to get out there and look at them roofs on cement plants"
(Tr. 242).
The petitioner bears the burden of proof to establish by a preponderance of the evidence that the kiln roof in question was in
danger of falling due to the weight of the accumulated materials
w&ich the inspector observed. If that fact can be established, I
could conclude that a safe means of access had not been provided as

1530

required by section 56.11-1. However, after close examination of the
testimony and evidence produced by the petitioner in support of the
citation, I conclude and find that petitioner has not proved that the
conditions cited by the inspector were in fact dangerous or hazardous.
I believe that the inspector was influenced by past incidents of roof
failures and that he really had no factual knowledge that the roof
was about to fall. It seems to me that if he really believed the roof
was about to fall in, he should have taken immediate steps to close the
area down and withdraw men from the danger zone. Here, he issued the
citation and initially allowed the respondent one week to abate the
conditions. Assuming that the operator availed hhnself of the one full
week to clean off the accumulations, one must assume that men still
worked in and around the area which the inspector believed was unsafe,
and at least one man worked under a roof which the inspector believed
would fall at any time. Such enforcement practices simply defy logic.
I am of the view that when an inspector cites a violation of a mandatory safety standard, he should be able to support it with facts and
not with conjecture and speculation. The citation is VACATED.
Citation No. 107008--Fact of Violation
I find that the petitioner has established by a preponderance of
the evidence that the brakes on the front-end loader which is the subject of this citation were not functioning properly. The cited section requires that defective equi~nent be corrected before it is used,
and the failure of the respondent to correct the brake defects constituted a violation of section 56. 9-2 as ci.ted in the cilalion. Respot1·dent's evidence does not rebut the prima facie showing of a violation
by the petitioner and the citation is AFFIRMED.
_Gravity
Although the inspector observed no pedestrian traffic in the immediate area where the loader was being operated at the time the citation issued, had he not issued the order taking i.t out of service, it
is likely that an accident would have occurred and someone uould have
been injured. This likelihood is supported by the evidence which
establishes that the only means for stopping the loader was by
dragging the bucket or putting it in reverse. I find that the violation was serious.
Negligence
The evidence establishes that Mr. Ross was aware of the fact that
the defective loader had some problem with the brakes. However, he
permitted the equipment to be operated "with reasonable care" until
another piece of similar equipment undergoing repairs could replace
the defective loader. I believe and find that such a course of action
on the part of mine management was a reckless disregard of the safety
requirements of section 56.9-2, and constitutes gross negligence.

1531

regulated by·OSHA rather than MSHA (Tr. 290). In addition, the parties agreed that any reasonable civil penalties, or the civil penalties initially assessed by MSHA, if levied, will not adversely affect
respondent's ability to remain in business (Tr. 290).
History of Prior Violations
Petitioner's Exhibit P-13 is a computer printout reflecting prior
paid violations for violations resulting from inspections at respondent's Knoxville Mine and Mill. For the period August 9, 1976, through
August 8, 1978, the printout reflects two citations for which respondent paid civil penalty assessments totaling $214. There is no history
for the Knoxville Quarry. Based on thi.s information, I find that
respondent has no significant prior history which would warra11t
increased penalty assessments for the citations which I have affirmed.
Additional Issues Raised by the Respondent

Both at the hearing and in its posthearing arguments, respondent
asserts and argues that it should not be held responsible or accountable for the mandatory standards cited by the inspector because the
standards have been imposed by the Secretary and not Congress.
Respondent argues that Congress never intended to legislate by regulation, and that its intent was to impose mandatory time schedules on
the Secretary for the purpose of developing safety standards through
the rulemaking process. Further, respondent argues that petitioner
has not established that there have been any hearings held to carry
out the Congressional intent and mandate requiring a showing of a
demonstrated need for the standards in question. Respondent also
alluded to the fact that it did not participate in, or comment on,
any of the standards at the time of their promulgation.
Respondent's arguments concerning the validity of the regulations are rejected. It seems clear to 1:ie that section 30l(b) of the
Act expresses the intent of Congress that those mandatory standards
promulgated pursuant to the now repealed Federal Metal and Nonmetallic Mine Safety Act which were in effect at the time of the 1977
Amendments to the 1969 Federal Coal Hine Health and Safety Act were
to remain in effect as mandatory health or safety standards applicable to metal and nonmetallic mines. With regard to respondent's
assertion that it was not given an opportunity to comment on the
standards before they were promulgated, I can only observe that it
is common knowledge that the standards which appear in Parts 55, 56,
and 57, were in fact the result of advisory committees composed of
both industry and Government members purportedly knowledgeable in
health and safety matters, and that the mining industry was given
full and ample opportunity for input and comment during the rulemaking pLocess connected with the promulgation and adoption of the

1532

standards. Mr~ Klashak candidly admitted as much during his testimony, and he also admitted that he was generally aware of the fact
that the 1977 Act incorporated the then existing standards by reference and that the respondent's mining operations were covered by the
Act. Although one can sympathize with Mr. Klashak's frustrations
connected with his belief that he is being "put upon" through overregulation by many state and Federal inspection agencies, that fact
may not serve a legal defense to the citations.
Alleged Failure of the Inspector to Permit Respondent'~ Representative
to Accompany Hirn on His Inspection
In connection with Citation No. 107008 dealing with the brakes on
the front-end loader, respondent argues that a representative of a mine
operator has a statutory right to accompany the inspector during his
inspection rounds, and that in connection with this citation, the
inspector failed to afford Mr. Ross that opportunity and in effect
conducted an ex parte inspection. After due consideration of the
argument, it is rejected; and based on the circumstances and facts
presented in this case, I conclude and find that respondent's statutory right to accompany the inspector were not violated, and my reasons in this regard follow.
Section 103(£) affords an opportunity to both the representative
of the mine operator and the miners to accompany the inspector during
his inspection of the mine and to participate in any post-inspection
conferences held at the mine. On the facts presented here, it is
clear that on the day of the insepction on March 16, Hr. Ross was
aware that Inspector Downs was on mine property conducting an inspection sjnce Mr. Ross was with him that morning. The inspector took a
lunch break after his morni.ng rounds and intended and agreed to meet
with Mr. Ross after lunch to continue his inspection rounds. After
eating his lunch, Hr. Downs was on his way to meet Mr. Ross when he
happened to observe the front-end loader which he believed constituted
an imminent danger. Rather than ignoring the situation, he decided
to issue his order taking the loader out of service before finding
Mr. Ross. In these circumstances, I cannot conclude that the inspector acted unreasonably, and the fact that Hr. Ross was not with him
at the precise moment he obuerved the loader infraction, does not
prejudice the respondent, and does not, in my view, render the citation illegal. Hr. Ross was aware of the inspector's presence on the
mine property, Hr. Ross was with him during his earlier morning rounds
when other citations were issued, and Mr. Ross and the inspector discussed the loader citation after it was issued.
ORDER
On the basis of the foregoing findings and conclusions, the following citations are VACATED, and the proposals for assessment of
civil penalties, insofar as these citations are concerned, are
DISMISSED:

1533

Docket No. BARB 79-61-PM
Citation No.

Date

30 CFR Section

107001
107007

3/14/78
3/16/78

56.9-87
56.9-2

On the basis of the foregoing findings and conclusions, the following citations are AFFIRMED, and considering the six statutory criteria set forth in section llO(i) of the Act, civil penalties are
assessed as follows:
Citation No.

Date

30 CFR Sect ion

Assesr::ment

107002
107004
107005
107006
107008

3/ 15/78
3/15/78
3/ 15/78
3/15/78
3/ 16/78

56 .1Li.-6
56. 20·-3
56.20-3
56.14-1
56.9-2

$ 75
90
125
100
375

Docket No.

BARB

79-267-PH

Citation No.

Date

30 CFR Section

Assessment

107089

8/08/78

56.14-1

$ 125

Respondent IS ORDERED to pay the civil penalties assessed in
these proceedings, as indicated above, in the total aoount of $890
within thirty (30) days of the date of this decision.

George A. Koutras
Administrative Law Judge
Distribution:
Darryl A. Stewart, Esq., U.S. Department of Labor, Office of
the Solicitor, Room 280, U.S. Courthouse, Nashville, TN 37203
(Certified Mail)
Norman H. Williams, Esq., Fowler & Robertson, 7th Floor, First
Tennessee Bank Building, Knoxville, TN 37902 (Certified Mail)
Standard Distribution

1534

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

OCT a

1979

Civil Penalty Proceeding

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

Docket No. DENV 79-99-PM
A.O. No. 10-00089-05004
Sunshine Mine

SUNSHINE MINING CO.,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Attorney, U.S. Department of
Labor, San Francisco, California, for the petitioner;
Daniel L. Poole, Esq, Boise, Idaho, for the respondent.

Before:

Judge Koutras
Statement of the Proceeding

This is a civil penalty proceeding pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, initiated by the
petitioner against the respondent on November 29, 1978, through the
filing of proposals seeking civil penalty assessments for five
alleged violations of the provisions of certain mandatory safety
standards set forth in Part 57, Title 30, Code of Federal Regulations. Respondent filed a timely answer and notice of contest, and
a hearing was held in Wallace, Idaho, on July 11, 1979.
Issues
The principal issues presented in this proceeding are (1) whether
respondent has violated the provisions of the Act and implementing
regulations as alleged in the proposal for assessment of civil penalty
filed in this proceeding, and, if so, (2) the appropriate civil penalty that should be assessed against the respondent for the alleged
violations based upon the criteria set forth in section llO(i) of the
Act. Additional issues raised by the parties are identified and disposed of in the course of this decision.

1535

In determining the amount of any civil penalty assessment, section llO(i) of the Act requires consideration of the following criteria: (1) the operator's history of previous violations (2) the
appropriateness of such penalty to the size of the business of the
operator, (3) whether the operator was negligent, (4) the effect on
the operator's ability to continue in business, (5) the gravity of
the violation, and (6) the demonstrated good faith of the operator
in attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164,
30 u.s.c. § 801 ~ ~·
2.

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

3.

Commission Rules, 29 CFR 2700.l et~·

§

820(i).

Discussion
Stipulations
The parties stipulated as to the Commission's jurisdiction, and
respondent conceded that the citations in question were issued and
served. Further, the parties agreed that respondent is a large
mining company, paid 14 assessed violations prior to the date
of the 1978 inspections in issue here, and that any civil penalties
assessed in this matter will not impair respondent's ability to
remain in business (Tr. 2-3).
Citation No. 347006, April 10, 1978, 30 CFR 57.12-30, states as
follows: 11 The 4400 west side switch rack and sub station (electrical)
had loose ground, timber, chain link fencing material along with
ground water falling into onto and around the electrical components
creating the hazards of shorting and fire."
Petitioner's Testimony

MSHA inspector James Arnoldi Confirmed that he inspected the
mine in April 1978, and that the mine is a large multilevel silverproducing mine. The switch rack in question supplied power to the
4400 mine level. He indicated that corrogated fiberglass which had
been placed over the switch rack to keep water off had fallen into
the rack area, chain link fencing had fallen over and was lying
against the rack, loose rock was located throughout the area and
probably caused the fence to fall down, and water was dripping in the
area of approximately 10 by 6. The switch rack consists of electric
components used to distribute power and he "imagined" it was energized and "believed" the voltage was 2300. Dripping water and the
fence against the electrical components posed the possibility of
shorting out and creating a fire. People were not working in the

1536

immediate area, but there was timber there which could cause any
fire to spread. He did not know how far away people were working,
but believed they would be affected by a fire because the air course
would carry smoke throughout the mine. He indicated that the operator should have been aware of the condition because "they walk by it
every day" and preparations were being made to move the switch rack
to another raise. The condition of the area led him to to believe
that it was in that condition for several weeks. Abatement was
achieved by moving the switch rack (Tr. 5-9).
On cross-examination, Mr. Arnoldi indicated that he has taken
some 40 to 60 hours of electrical courses at MSHA's academy in
Beckley, West Virginia. The switch rack unit itself was approximately 4 feet long and some 3 feet high, and it was located within
100 feet of the 4400 station off the main line in a small deadend
"cubbyhole" drift which was some 30 or 40 feet deep. He viewed the
rack from a distance of 10 to 15 feet and did not walk up to it. A
muck pile high enough to knock over the chain link fence was present
and it was some 3 to 4 feet high. The ceiling was some 9 to 10 feet
high and one would have to climb over the muck pile to reach the
switch rack. No supplies were stored in the ar~a, and miners would
have no need to reach anything located around the switch rack.
He saw no miners working around the area or the service raises
(Tr. 10-14).
Inspector Arnoldi discussed the matter with a company safety
engineer who advised him the switch rack was being moved to another
raise, but he did not discuss the air ventilation patterns in the
area, nor did he inquire as to the number of men working in the mine
on the day in question. A short in the switch rack could cause a
fire, but he made no inquiry as to any protective devices which may
have been installed to protect against any shorts. He confirmed that
he was faimiliar to some extent with millisecond circuit breakers,
and indicated that in case of an overloa~ or short circuit, power
would be cut off instantaneously by these breakers, but he did not
inquire as to whether such circuit breakers were installed on the
switch rack in question because he did not think about it. The
wooden timber raise he referred to was 15 to 20 feet from the switch
rack area, and there was nothing combustible between the timber and
switch rack, except for the corrugated fiberglass which he "assumed"
was combustible. The drift in question was not a travelway, and no
miners would have any reason to be there except for an electrician
or repairman (Tr. 14-18).
Inspector Arnoldi indicated that the equipment was energized and
that he issued no order requiring that it be deenergized. He cited
section 57.12-30 because it was ''the most applicable to get the situation corrected," although he agreed the standard was "poorly
written." He was not familiar with the type of switches installed on

1537

the switch rack in question, the wiring insulation, or what a person
would have to do in relationship to the switch rack in order to be
exposed to an electrocution hazard. The presence of water posed a
potentially dangerous situation, but he did not know what could
happen with dripping water. He made no inquiries concerning the
switch rack wiring insulation factor, the resistance rating of the
wiring or insulation, or whether the rating was a water rating for
the insulation factor (Tr. 19-25).
On redirect, Inspector Arnoldi confirmed that the presence of
a switch breaker ~ould make the likelihood of a fire a remote possibility (Tr. 26). He believed a fire hazard existed because of
water dripping in the area, and the fact that the chain link fence
was lying on the switch rack components. Even though power was shut
off by the circuit breaker, he believed people would be exposed to a
fire wherever and whatever the ventilation pattern (Tr. 28).
On recross, Mr. Arnoldi distinguished between a substation and
a disconnect rack, and indicated that the former involves transformers, while the latter involves switches. The citation concerns a
switch rack and he conceded that he should not have characterized it
in part as a substation in his citation. A switch rack has a lower
fire potential, and while he discussed the length of time the condition cited had existed with the operator's representative, he could
not recall the time, and his notes do not reflect any time frame.
He was told the new raise would be ready in 2 or 3 weeks (Tr. 28-30).
In response to bench questions, Mr. Arnoldi indicated that the
switch rack was in operation at the time of the citation. He conceded the citation was a "type of housekeeping" condition that could
lead to and contribute to a dangerous condition. The relocation
work connected with moving the switch rack caused the deterioration
of the area, and he did not believe the area would have deteriorated
were it not for the move. He had observed the condition of other
similar electrical equipment in the mine and it was in good condition. He knew that the operator was preparing to move the switch
back, and he could think of no other standards which could be applicable to the situation he found (Tr. 30-32).
Reseondent's Testimony
Malcolm McKinnon, former mine superintendent at the Sunshine
Mine, identified Exhibit R-101 as a partial level map of the west
side of the 4400 level. He was familiar with the switch rack
citation, the location of the cited rack, and he was the superintendent at the time the citation issued. He was in the area in question
periodically, and he indicated that several days before the citation,
work had been completed to enlarge some drift pipe lines, and in that
process ground had to be removed and taken down with a muck pile,

1538

The switch rack was located close to the rear wall, at a deadend,
and the area was not a travelway. Pipe construction was taking
place, and the ground condition between the 4400 and 4600 areas
was poor. Two men were working on one shift a day working on
the repairs, and a repairman and an electrician would be in the
area, and the area was under repair for 1 or 2 days before the
citation was issued. He examined the rack from a distance of
5 or 6 feet and observed it from the top of the muck pile. He
observed no timbers, fencing, or muck falling into and onto the
electrical components, nor could he recall seeing anything leaning
against the switch rack. He observed no water falling into or onto
the electrical components and recalled no fiberglass. The chain
link fence was partially buried in the muck pile, but he did not
recall that it was in contact with the with the rack (Tr. 41-48).
Mr. McKinnon described the ventilation pattern and marked it on
the exhibit. He indicated that smoke from any fire would exit
directly to the mine surface rather than through any work places
downstream, However, if the electrician or repairmen were in the
area, they would be affected. He perceived no potentially dangerous
situation on the day the citation issued (Tr. 48-50),
On cross-examination, Mr. McKinnon conceded he was not present
during the inspection. He indicated that ground water was present
some 20 feet from the switch rack. He observed the area within a
week or 10 days after the inspection, and the area had been cleanedup, the ground flagged off, and the fencing was back up (Tr. 50-53).
George ClaEE_, underground electrical supervisor, stated that
he was responsible for the switch rack in question, was in the
area quite often, and after the fall of ground took place prior
to the citation, he was there daily. He was supervising the work
in the area prior to the citation and went there after the citation
issued. He described the area around the switch rack after the fall
of the ground, and he indicated that the switch racks are capable of
handling 5,000 volts, and the wiring is rated at 5,000 volts wet.
The disconnect switches are porcelain and are rated at 5,000 volts
wet. There were 2,300 volts on the rack at the time of the citation.
The wet ratings are UL, (Underwriters' Laboratories) ratings, and they
relate to the electrical components operating under a wet condition.
Water was going down the drift at a distance of some 15 or 16 feet
from the switch rack, and while the area was damp and the humidity
high, he saw no dripping water. The work area for the repairmen was
separated from the switch rack by a pile of rocks. He cautioned his
repairmen to be careful of the energized switch rack, and he believed
that experienced miners could safely remove the muck pile and loose
ground without deenergizing the equipment. He saw no loose ground,
timber, or chain link fencing falling into or onto the switch rack or
elect~ical components.
Maintenance had not been neglected on the
rack or wiring. The probability of the facility shorting would

1539

depend on a lot of factors, and while shorting from water was not
impossible, the chances were very, very slight. Westinghouse vacuum
breakers had been installed some 4 months prior to the citation,
and they are ultra fast, The only thing that could catch fire was
the insulation of the wiring itself, but he saw nothing flammable
that could contact the wiring. The area was damp and wet and he
saw no danger of a fire, and did not believe the repairmen working
in the area were exposed to any unreasonable danger (Tr. 54-67).
Mr, Clapp stated that the cables from the service raise to the
switch rack were insulated with bore hole steel, that a person would
have to reach under the switch rack and touch an exposed part of a
disconnect door before being exposed to an electrocution hazard. The
disconnect switches and rack are insulated and not exposed to the
front (Tr. 6 7) •
On cross-examination, Mr. Clapp confirmed that he did not
believe it necessary to deenergize the switch rack wires because
experienced miners were working around them, However, he conceded
that carelessness could lead to a dangerous co~dition, Wooden lagging was in the muck pile and an old piece of water pipe was about
a foot from the rack, Had Mr, Arnoldi not inspected the area, the
conditions would have prevailed for 2 weeks at most while the new
raise was being constructed (Tr. 70).
In response to bench questions, Mr. Clapp indicated that even
if the fencing were leaning across the switch rack, there would be
no hazard since the UL rating of the cable was such that it was
engineered to operate under wet conditions (Tr. 72),
Sidney R. Barker, repairman, testified he had a job assignment
repairing the area at the switch rack in question. He confirmed that
Mr, Clapp advised him to be careful and not to take any unnecessary
chances, He also worked in the area after the citation issued, When
he began his repair work, he observed no timber, water, fencing material, or muck falling into or onto the switch rack. He did not
believe he was exposed to any unreasonable danger while performing
repairs or cleanup (Tr. 77).
Cita.tio~ No. 346811, May 11, 1978, 30 CFR 57.19-100, states:
"The shaft landing at the 4500 pocket was not provided with
gates between the pocket and the shaft opening,"

Citation No. 346812, May 11, 1978, 30 CFR 57.19-100, states:
"The shaft landing at the 4800 pocket was not provided with
gates between the pocket and the shaft opening,"
Citation No. 349610, May 11, 1978, 30 CFR 57,19-100, states:
"The shaft landing at the 5400 level pocket was not provided
with .safety gates between pocket and shaft opening."

1540

Citation No, 349611 1 May 11, 1978, 30 CFR 57,19-100, states:
"The shaft landing at the 5000 level pocket was not provided
with safety gates between pocket and shaft opening",
MSHA inspector Donald L, Myers, testified that he conducted the
inspection and issued the citations concerning the shaft landings,
and that fellow Inspector Guttromson accompanied him during the
inspection of the skip pockets at the 4500, 4800, 5000, and 5400
levels, He described a "skip pocket" as a cutout or offset off the
side of the shaft that is connected to the dumping point above where
the ore comes into· the pocket loading chute for transportation up the
shaft on the skip. People were working on the day in question loadp
ing ore onto the hoists from the pockets, A rope or chain was
istalled between the skip pocket and shaft openings, but it was not
being used and bad not been used for some time, No gates were
installed, The depth of the pockets from the rear to the front of
the shaft varied from 4 to 8 feet back to where the men were working
(Tr, 84-87),
Inspector Myers stated that the hazard presented by the conditions cited was the possibility of a man slipping or falling in the
shaft or something coming down the shaft and hitting him, Water and
wet muck sometimes come into the pocket and may cause a spill, On
the day of the citations, two persons were exposed to the hazard, and
they rotated their work among the four pocket-level locations which
were cited, There was nothing to prevent the men from falling on the
day in question, and he believed the operator should have been aware
of the conditions since a chain or rope was installed but not used,
and he believed there was some reason for their installation, The
conditions were readily observable and he saw no safety line or lanyard and could not recall whether the employees had safety belts.
After the inspection, safety lines were obtained and provided, The
conditions were abated by fabricating and constructing a chain link
gate on a rail or piece of metal across the upper portion of the
shaft opening, The gates were mine management 1 s idea, he agreed
that they would be satisfactory, and the conditions were timely
abated, He considered the skip pocket to be a shaft landing because
any landing where men have to get off and on a conveyance is a landing, Machinery would be taken on and off the conveyance at a normal
landing, and if repairs are made in the skip pocket, equipment could
be taken there, He believed that a "skip pocket" is a point in the
shaft where the cage can be lowered with men or materials (Exhs, R-2
R-2, R-3, Tr, 88-93),
On cross-examination, Inspector Myers characterized a "level" as
a working area where work such as mining or timber repair takes place,
as distinguished from loading muck or ore from the skip pocket, He
described the areas referred to as levels, the "grizzly," and loading
pockets, and marked them on Exhibit R-1 (Tr, 93-96), He also
descriped a "shaft station" and indicated that it is not the same

1541

as a "skip po_cket." He also indicated it was customary to have gates
at shaft stations and they have been used for at least 10 years
(Tr. 98-99). In his view, a rope or chain does not constitute a
gate, but it is a barrier of some kind (Tr. 101). He has never
researched gate construction, has not issued citations at other
mines for not having gates across the front of skip pockets, and
he could remember seeing no other mines with such gates installed
(Tr. 101). A chain or rope installed at a skip pocket would meet
the requirements of the cited safety standard, but if installed
at a shaft landing station, they would not, He conceded that he
required the installation of gates, but that a single chain in a
skip pocket is not adequate but "it beats not having anything at
all" (Tr. 103-104).
Inspector Myers stated he did not discuss with the operator
what was necessary to abate the citations, He confirmed that he
was at the mine on a regular inspection and that someone had complained about flooding in a pocket and the lack of gates (Tr. 104,
106), He believed that any kind of a barrier would have been sufficient although he did specify a gate. Had another barrier been
in place and in use he would not have cited a violation. He stated
he did not talk to the operator ab0ut other options for abatement
because he cannot tell an operator how to abate a citation. Since
the gate was mine management's design, and he found it adequate, he
simply thought it was "fine" (Tr, 118), The gates in question will
not keep material from going under the gate into the skip pocket
because it has no rigid bottom, but it will prevent things from coming down the shaft into the skip pocket, and it will keep men from
going out through (Tr, 118).
Inspector Myers indicated that materials such as a welder and
cutting torch might be unloaded at the skip pocket for repair work,
but he did not know how often this would happen, Basically, the
cagers are unloaded at this location, The activity taking place at
a shaft station include the off-loading of materials such as timber,
explosives, drill bits, and steel pipe, and a considerable number of
miners would come and go from such a shaft station at any given shift.
Considerably more activity takes place at a shaft station as opposed
to a skip pocket, and there is a greater risk of materials falling
from such a shaft station than would be the case of a skip pocket,
Miners are required to wear safety belts where there is a danger of
falling and that requirement is enforced at the mine. He would not
have issued the citations if the miners were tied off to protect
them against falling or being pushed into the shaft, and gates are
not required at working deck locations. He has never heard of anyone referring to a skip pocket as a shaft landing, and he does not
know whether miners consider skip pockets to be shaft landings, and
he knows of no MSHA regulation that defines a "shaft landing." Standard 57.19-103 uses the term "loading pocket," and he believes it
can be contrued to mean "skip pocket," and he could not explain why

1542

section 57.10-100 speaks in terms of "shaft landings." Respondent
was in the process of developing protective "curtains" to keep material from falling down the shaft, and the one installed at the 5200
level (Exh. R-3), was developed as a result of complaints. Since
it was reported that the operator "were dragging their feet" in
installing the rest of the curtains, it was decided that a citation
should be issued. After being in the skip pocket with the loaders,
he decided they needed protection from falling into the shaft and
from materials falling down the shaft, and that prompted him to
issue the citations (Tr. 119-130).
Inspector Myers described the position of the skip loaders and
cagers while performing thei~ work tasks in the skip pocket, and the
cagers told him that they sometimes went to the edge of the shaft and
stuck their heads out in the shaft and looked down, and he understands that this is part of the cager's normal job responsibility.
He also described the position of the skip and the loading process
which takes place. In the normal course of business, a miner would
not normally approach the open shaft at any time other than when the
skip is parked right at his feet (Tr. 130-134).
On redirect, Mr. Myers indicated that at the time of his inspection no employees were exposed to. danger and his inspection took
place during the day shift. His primary concerns were employees
falling or being pushed down the shaft or materials coming down the
shaft and bouncing in on them. He would consider a chain or some type
of barrier that a miner could grab onto as sufficient to abate the
conditions cited (Tr. 135). He defined a "shaft landing" as any point
in the shaft where men have to get off and on a skip (Tr. 137).
Respondent's Testimonr
MSHA inspector Maurice Guttromso~ was called by the respondent
as an adverse witness. He stated that he was aware of no mining
texts that describe gate or curtain assemblies for skip pockets, but
was familiar with mining or engineering publications that described
gates for station landings or levels. The inspection in this case
was the first time he had ever written citations for a loading pocket
not having a gate, and subsequent to this time he has not issued any
others because he has "never run across any yet that needed it. 11 At
the mine where he is presently assigned, gates are not needed because
the landings are "set so far back" it makes no sense to have them.
They are some 15 feet from the shaft and usually one or two cagers
are present there to load the skip located in the shaft. Since the
cagers are so far back, there is no way anything can come down the
shaft and strike them, He defined "shaft landing" as a point in the
shaft where the skip stops and men and materials are loaded on and
off, and he believes that the term "shaft landing" is the same as
a "sha,ft station or landing" (Tr. 143-144).

1543

Robert E. Launhardt, safety director, Sunshine Mine, testified
he was familiar with the citations issued in this case, and it is his
understanding that the skip pocket was construed to be a shaft landing and therefore the citations were issued becausi the gates required
by section 57.19-100 were not installed. He does not believe the
citations were properly issued because he has never believed that a
skip or loading pocket is synonymous with a shaft landing. It is
his understanding that the term "shaft landing" or "shaft station"
applies to an opening to a working level from which men and materials
enter and leave a mine, and that section 57.19-100 was intended to
apply to the shaft station or shaft landing gates. Had the intent
been to cover skip pockets, the standard would have said so. He
stated that in his experience, he has never heard the terms "loading
station 11 or "skip pockets" used synonymously with shaft station or
level. He does not believe that the cited &tandard applies to loading pockets or skip pockets. He can think of no reason why a cager
would want to lean over a shaft and look down, and his job description does not require him to do that since it is an unsafe practice.
A gate or curtain would not protect a miner if he decided to lean
over the shaft with his head out. Company policy and safety rules
dictate that cagers and shaft repairmen who regularly work in areas
where there is a danger of falling shall wear safety belts or lines,
and Lhis safety rule is enforced, However, cagers and shaft repairmen as a group are reluctant to use safety lines when there is a
shaft conveyance present because they do not want to be tied to anything in the event they have to move quickly, and the application
of such a safety line in a pocket is questionable (Tr. 170-179).
Mr. Launhardt stated that he was not involved with the original
design of the gates or curtains that were ultimately installed at the
pockets in question, although he was aware of the fact that they were
being developed, and he was not present when the citations were
issued, nor was he aware of the timetable for installing the gates
or curtains (Tr. 180).
On cross-examination, M:;_·, Launhardt testified as to his interpretation of the terms "shaft stations," "landings," "pockets," etc.,
and as to certain other safety standards dealing with shaft protection (Tr. 180-183). In response to further questions, he also defined
the terms "stage" and "level," and indicated that the location where
the gate was originally installed at the 5200 level is a skip pocket,
as are the other locations cited (Tr. 189).
Wayne Baxter, shaft foreman, testified he was involved in the
process of developing gates or curtains or some kind of barriers for
installation at the skip pockets. Attempts were made to construct
gates which swing out, but that proved unworkable. The cagers brought
the problem to his attention and since the 5200 pocket was the worst
location for possible falling material, work to install a gate was
started there. Alternative devices prior to the ga·i.:e which was

1544

ultimately installed at this location were rejected because the
cagers did not like them opening in or out. After working with the
cager and a shaft mechanic, he devised the gate which was installed.
He intended to install similar gates at all the pockets and had fabricated frames for the 5400 and 5000 locations, but since no two pockets
were alike, each had to be measured individually. Gates are now
installed at all skip pockets, and when he began the project no one
told him that such gates were required. As for any delays connected
with the construction of the gates, he was not aware of any, and the
citations were abated on the Monday after they were issued. The
abatement could not have taken place that soon had he not been
actively involved in constructing the gates (Tr. 194-201). He contemplated fininshing the construction of all of the gates within
a week or week and a half of the inspection, and no one complained
to him about any delays in this regard (Tr. 202-203).
Findings and Conclusions
Citation No. 347006, 30 CFR 57.12-30
Mandatory safety standard 30 CFR 57.12-30 states as follows:
"When a potentially dangerous condition is found it shall be corrected before equipment or wiring is energized."
The parties waived the filing of any posthearing proposed findings and conclusions with regard to the citation in question. However, they were afforded an opportunity to make oral arguments with
regard to their respective positions during the course of the hearings (Tr. 22-23, 26, 35-41, 77-82).
Respondent's Arguments
Respondent argues that the inspector picked the wrong standard
to cite and that the record does not support a finding that the condition cited constituted a potentially dangerous condition within the
meaning of section 57.12-30. Absent any detailed -evaluation of all
of the circumstances which prevailed at the time the citation issued,
respondent takes the position that the inspector's judgment in issuing the citation simply cannot be affirmed and that petitioner failed
to carry its burden of proof. While alluding to other standards which
respondent believes could have been cited, counsel could not specifically state which ones he believed were more applicable except for
a reference to section 57.12-23. Further, respondent argues that
the inspection was superficial in that the inspector failed to completely evaluate what was required to result in a truly dangerous
situation. Respondent emphasizes that while the standard requires
that any potentially condition be eliminated before equipment is
energized, the inspector allowed the equipment to remain energized.

1545

Petitioner's Arguments
Petitioner argues that the dangerous condition need not predate
the energizing of the equipment wires, and that the standard should
be broadly construed to either require the deenergizing of the equipment or to correct the potentially dangerous conditions, Petitioner
relies on the inspector's testimony that the conditions cited were
potentially dangerous, and notwithstanding the fact the the inspector made only a cursory examination of the conditions, petitioner
believes there was .a potential for danger and asserts that that fact
is controlling, The potential danger was that a fire could have
occurred, and petitioner asserts that the standard cited by the
inspector was in fact the applicable standard which perteined to the
conditions found,
The parties are in agreement that the fact that the inspector
saw fit to describe ·the electrical equipment in question as a switch
rack and substation is not fatally defective, The parties are in
agreement, and the testimony presented establishes that what is
involved here is a switch rack and not an electrical substation,
The question of substation is relevant only insofar as the element
of gravity is concerned since the potential for fire or electrocution hazard is significantly higher at a substation, as opposed to
a switch rack (Tr. 79-80, 82).
After careful review of the arguments presented by the parties,
and based upon the preponderance of the evidence adduced, including
close scrutiny of the testimony, I conclude and find that the petitioner has the better part of the argument and has established a violation by a preponderan~e of the evidence, I conclude that the cited
standard is broad enough to apply to the situation presented on the
day of the cited conditions, The deteriorated conditions at the area
where the switch rack was located were obviously caused by respondent's decision to move the rack to a new underground location. Work
was being performed to achieve this move, and in the course of that
work the ground was disturbed, a chain link fence fell over, water
was present, and other debris was adjacent to and resting against the
switch rack, Faced with these conditions, the inspector believed that
there was a potential hazard of shock and fire caused by a possible
short circuit of the equipment,
Although it is clear that the inspector failed to make any
detailed evaluation or examination of all of the elements which he
should have looked into to determine the extent of the hazard, the
fact is that the equipment was energized and at least two men were
working in and around the area in question, While the mine venti. lation system and circuit breaker protection on the switch rack
may serve to mitigate the seriousness of the situation presented, I
cannot conclude that these factors may serve as an absolute defense
to the citation or serve as a basis for a finding that no potential
danger was presented.

1546

The former mine superintendent testified that the general ground
conditions in.the area were poor and that water was located nearby.
However, he did not view the conditions cited during the inspection.
Mr. Clapp, the electrical supervisor respo~sible for the switch rack,
candidly testified that he cautioned his crew to be careful of the
energized switch rack, and he was careful to point out during his
testimony that experienced miners could safely remove loose rock
and muck without:deenergizing the equipment, although the equipment
was not deenergized due to the fact that an experienced crew was
working on it. Mr. Clapp conceded that carelessness could lead to
danger, and it is obvious to me that he is a safety-conscious supervisor who is concerned for the safety of his men. Coupled with his
warnings to his crew to be careful, I believe it is reasonable to ·
conclude that Mr. Clapp was cognizant and aware of the fact that
there was a potential danger present, notwithstanding his assertion
that the men were not exposed to any "unreasonable" danger. tn addition, Mr. Clapp conceded that the probability of a short circuit is
dependent on many factors, and he stated that while the chances of a
short occurring due to the presence of water were slight, it was
not impossible and that the wiring insulation could catch fire. He
also indicated that if the citation had not issued, the conditions
found by the inspector would have prevailed for approximately another
2 weeks while the switch rack was being moved, In these circumstances, I conclude and find that the conditions at the switch rack
area cited by the inspector constituted a potential danger within
the meaning of the cited safety standard, and the citation is
AFFIRMED.
Negligence
The evidence and testimony presented reflects that mine management personnel were in the area on a daily basis and I conclude
that they should have been aware of the potential danger presented
and taken corrective action prior to the inspection, In this regard,
I find that the respondent failed to exercise reasonable care to prevent the conditions cited and that this constitutes ordinary
negligence,
Gravity
Although I have concluded that the conditions cited presented a
potential danger~ the seriousness of the situation is mitigated
somewhat by the fact that the switch rack was equipped with circuit
breaker protection and was operating below its UL wet voltage rating
at the time of the citation.
Good Faith Comeliance
I find that the evidence adduced supports a finding that the
respondent exercised good faith in ultimately abating the conditions
cited·.

1547

Size of Business and Effect of Civil Penalty Assessment on Respondent's Ability to Remain in Business
The parties stipulated that respondent is a large mine operator
and that a civil penalty assessment will not impair its ability to
remain in business.
History of Prior Violations
Respondent's history of 14 paid prior assessed violations, does
not, in my view, constitute a significant history of prior violations,
and for a large operator I cannot conclude that it warrants any additional increase in the penalty assessed by me in this matter.
Citation Nos. 346811, 356812, 349610, and 349611 all concern
alleged violations of the provisions of 30 CFR 57.19-100, in that
respondent failed to install protective gates at four shaft landing pocket locations between the pockets in question and the shaft
openings. Section 57 .19-100 states as follows: "Shaft landings
shall be equipped with substantial safety gates so constructed that
materials will not go through or under them; gates shall be closed
except when loading or unloading shaft conveyances."
The parties waived the filing of written proposed findings and
conclusions, but were given an opportunity to present arguments on
the record during the hearing in support of their respective positions (Tr. 207-211).
Petitioner's Arguments
Petitioner's counsel agreed that the language of the cited standard does not address itself to the protection of miners who may fall
into the shaft. Counsel asserted that "the problem wasn't spillage
into the shaft," but rather "the problem was materials coming in, not
materials going out,'' and quite candidly, counsel asserted that petitioner is seeking to apply the cited standard broadly to the facts
presented in this case (Tr. 189-191).
Petitioner asserts that the threshold question is whether the
loading pockets in question are equivalent or equal to shaft landings
as described in section 57.19-100. If they are not, petitioner conc~des that the citations were incorrectly issued.
In support of its
case, petitioner relies on the testimony presented concerning the
hazards of materials falling in and out of the pockets and the hazards
of men falling into the shafts. Petitioner suggests that the recognition of such dangers supports a broad interpretation of the standard
to include the pockets in question, particularly in light of the general introductory statement found in section 57.19 which petitioner
asserts indicates that the intent of the standards is to include the
protection of men who are performing work. As for the use of safety
belts or lines in lie1: of protective gates, petitioner points out
that belts and lines were not being used, and that the standard
requiring the use of such belts and lines simply does not apply to
the facts presented (Tr. 207-208).

Respondent's Arguments
Respondent interprets the intent of the standard to protect
against materials coming from the shaft landing going into the shaft
and that the gate was intended to protect against that event. Further, counsel asserted that there simply is no applicable standard
that relates to curtains, gates, or anything else in terms of skip
pockets or loading pockets, and he emphatically believed that respondent was in the process of developing and installing protective curtains at all skip pocket locations and that its motivation in doing
this was in the interest of safety and not because any particular
safety standard required it. Counsel does not believe that respondent should be penalized for its efforts in this regard by being subjected to civil penalty citations and assessments. Further, counsel
does not believe that respondent could have been alternatively cited
with section 57.19-103, because that standard deals with spillage out
of the pocket and into the shaft, and the facts presented simply do
not fit that situation (Tr. 192-193).
Respondent agrees that the critical question rests on whether
loading pockets are properly defined as shaft landings. Respondent
asserts that the testimony presentAd demonstrates that in terms of
normal usage in the mining industry and a reasonable interpretation
of the usage of the language of the standard among knowledgeable
people, that when the terms "shaft" and "landing" are used, it is
intended to mean shaft stations or levels and not loading stations
or loading pockets, Respondent avers that the cited standard simply
does not apply to the locations cited and that respondent was in the
process of devising and installing a protective device that MSHA was
later willing to accept as "gates," and that the abatements accepted
by MSHA as "gates" are in fact not "gates" within the meaning of the
standard in issue. As for the use of safety belts and lines, respondent takes the position that there is no evidence that those requirements have not been enforced by the res~ondent, notwithstanding the
fact that miners are reluctant to use them because they believe they
are hazardous when used in conjunction with a moving shaft skip. As
for the application of the standard in question to men and materials,
respondent asserts that while the standard speaks in terms of preventing materials from corning down the shaft, respondent recognizes
that the standard is intended to protect men from being injured and
that is the predominant concern of respondent as well as MSHA.
Further, respondent reiterates its argument that in the interest of
safety and concern for the miners, iL voluntarily began to take corrective action to devise and install a protective device beyond that
required by any applicable mandatory safety standard and that it
should not be penalized or assessed civil penalties simply because
it has demonstrated that such devices could be designed and installed
but had not done it in time (Tr. 209-120).

1549

The evidence adduced in this proceeding reflects that while
ropes or chains were installed at the pocket locations in question,
they were not in use, and although the inspector indicated that
while he would accept the use of any such barriers at these locations in question to prevent men from falling or being pushed into
the open shaft, since ropes or chains were not being used, he considered that the locations were unprotected, Further, although the
inspector denied that he insisted on gates, and indicated that the
gates were "volunteered" by the respondent since respondent had
installed such a device at another similar pocket location and he
simply accepted this device as adequate for compliance, the fact is
that his citations specifically state that gates were not provided,
and I am convinced and conclude that by citing section 57.19-100,
which specifically requires a protective gate, he firmly believed
that the standard cited required the installation of gates at the
pocket locations in question. His belief in this regard was dictated
by his judgment that the hazards presented by not having such gates
installed involved the possibility of someone fallin3 into the open
shaft or being struck by materials which could inadvertently fall
down the open shaft and striking a person who may be leaning out over
the shaft or material falling down the shaft and somehow falling into
the open pocket and striking someone who may be working inside the
pockr·t. The parties stipulated that the protective gate which was
installed on the 5200 level was installed at that location at least
2 days prior to the time the citations in question issued (Tr. 202),
and the evidence indicates that the gates which were ultimately
installed to abate the citations were modeled after the one installed
at the 5200 level.
I take note of the fact that the parties, including the inspector
who issued the citations, seem to be in agreement that the cited standard is not a model of clarity and that it lends itself to different
interpretations. Taken at face value, the literal language of the
standard requires that substantially-constructed gates be installed
at shaft landings in order to prevent materials from going through
or under them. It also requires that such gates be closed except
when loading or unloading shaft conveyances. Quite frankly, I have
no problem with the language of the standard per se. If MSHA can
establish that the four locations which did nothave gates installed
are in fact shaft landings, then it should prevail. If they cannot,
then the citations should be vacated. The problem, as I see it, is
compounded by the fact that a well intentioned inspector did not cite
a mandatory standard which specifically and directly fits the facts
presented here; that is, there is no standard that specifically
refers to skip of loading pockets, men falling into the shaft, or
materials falling into a shaft. Petitioner would have me read and
apply the standard as if it included skip or loading pockets, even
though those terms ar not used. In support of this argument, petitioner relies on the general language of section 57.19, and the fact
that men and materials are loaded on and off at loa~ing pockets.

1550

Section 57.19 states as follows: "The hoisting standards in this
section apply to those hoists and appurtenances used for hoisting
men. However, where men may be endangered by hoists and appurtenances used solely for handling ore, rock, and materials, the appropriate standards should be applied. 11
I see nothing in the language of section 57.19 that would support
the petitioner's position that a skip or loading pocket is the same
as a shaft landing. That section simply states that when men are
endangered by hoists and appurtenances used solely for handling ore,
rock, and materials, the appropriate standards should be applied. If
men are loaded on and off the skip at the shaft locations in question
then it seems to me that section 57.19 would be inapplicable. In any
event, I see nothing in the language of section 57.19 tD support petitioner's position. Further, as for my transforming the term "shaft
landings" as it appears in section 57.19-100 to read "loading pocket,"
I can only note that I take the standards as I find them. Interpreting a standard broadly to achieve the Congressional intent to insure
safety in the mines is one thing, but rewriting safety standards is
something else. Here, the terms "shaft landings" and "loading
pockets" must have some distinct and separate meaning since the
drafters of the standards use these and similar terms in different
standards. For example, section 57.19-101 refers to "shaft collar or
landing," 57.19-103 refers to "loading pockets," 57.19-105 refers to
"shaft compartments," 57.19-106 makes reference to "shaft sets," and
recently enacted mandatory standard 57.19-104 refers to "shaft stations." 44 Fed. Reg. 48534 (August 17, 1979). Since those terms are
not further defin~in Part 57, the interpretation and application
of those terms in an enforcement setting are left to the imagination
and ingenuity of the inspectors issuing citations, the attorneys representing the parties, and I might add, the judge who ultimately must
decide the question.
The petitioner has the burden of proof. In surrunary, its position
is that section 57.19-100 requires the installation of protective
gates at shaft landings in order to preclude materials from coming
into the loading pocket. Since the definition of "shaft landing"
rests in part on the fact that men and materials are loaded on and
off at such landings, and since men and materials are also loaded on
and off at loading or skip pocket locations, petitioner reasons that
the two terms are synonymous and that for purposes of the application
of section 57.19-100, shaft landings and skip or loading pocket "landings" are the same. In support of its position, petitioner relies on
the testimony of the inspector, dictionary definitions, and a broad
reading of section 57.19-100.
With regard to the inspector's testimony, it seems clear from
the record that it is somewhat contradictory and equivocal on the
quest~on of interpretation and application of section 57.19-100.

1551

This stems from the fact that the inspector was trying to do the
best he could -under the circumstances by citing a standard which
obviously does not specifically and directly fit the factual situation presented in this case. For example, the inspector stated
that he considers a skip pocket to be a shaft landing because "I
feel that any landing where men have to get off and on that conveyance is a landing." When asked whether machinery is taken on and
on and off the conveyance, he answered, "on the normal landing they
do," When asked about a "skip pocket", he answered, "if repair is
done on the pocket or in the area of the shaft--is in the area of
the pocket, I imagine equipment is." And, when asked how men would
get to the pocket, he answered, "they ride the skip down." Thus,
the inspector seems to distinguish between a "normal" landing and a
skip pocket (Tr. 91-92),
A second example of a somewhat confused interpretation of the
language of the standard lies in the fact that one of the hazards
and dangers relied on by the inspector in citing section 57.19-100,
was the possibility of a miner falling into or being pushed into the
shaft, However, the standard does not address itself to the protection of men falling into the shaft, It requires substantially constructed-gates to prevent materials from going through or under the
gates, The language "through or under" generated some debate during
the hearing as to whether it meant from the shaft side into the pocket or from the pocket into the shaft, and is again indicative of the
somewhat loose language of the standard.
A third example of confusion lies in the fact that the term
"gate" is not defined. Pictorial Exhibits R-2 and R-3 depict some
chain-link fencing fixed to a pipe or bar by rings to facilitate the
lateral opening and closing of the device, and I assume that the term
"curtain" stems from the fact that the device is similar to an ordinary household curtain, and the device depicted in the exhibits is
the one previously installed at the 5200 level and which served as
the prototype for the ones installed at the cited skip pocket locations to abate the citations,
Finally, another example of the somewhat confused interpretation
of section 57.19-100 lies in the fact that the inspector would not
have issued the citations if barriers such as ropes or chains, or
devices such as safety belts or lines would have been installed and
used at the cited locations. However, if the purpose of issuing the
citations was to protect against materials coming out of the skip
pockets and falling into the shaft, I fail to understand how such
personal protective devices would prevent this from happening, It
seems to me that section 57.19-103, which states in part that ''loading pockets shall be constructed so as to minimize spillage into the
shaft," would be an appropriate standard to cover that situation.
As for the use of life lines or safety belts, section 57.15-5, which
requires the use of belts and lines where there is a danger of falling,
would, be an appropriate standard to prevent a man from falling into
the shaft, notwithstanding the fact that the men are not particularly
enchanted with such devices.

1552

The inspector asserted that the reference to "gates" in his citations and abatements was only intended to reflect what the respondent
had already installed at the 5200 pocket location, and that since he
approved of that gate, and since respondent was willing to go ahead
and install similar ones at the other locations, he accepted the
installation of the gates as sufficient to meet the requirements of
the standard. However, I take note of the fact that the initial
inspection of the skip pocket locations which did not have gates
installed was prompted by complaints made to MSHA. As a result of
those complaints, an MSHA official from Arlington, Virginia, by the
name of Pitts made the following notation on a piece of paper and
gave it to the inspector: "57.19-100 (m) Need safety gates between
pockets and shaft at 4800, 4500, 5000, 5400 the same as is on 5200
pocket," (1'r. llO; Exh. ALJ-1).
Although the inspector denied he was influenced in any way by
the note given him and indicated that he made an independent evaluation of the conditions at each of the locations cited, it seems
clear to me that the inspection was clearly the ,result of the complaint and that Mr, Pitts' note did influence the inspector, The
note is dated 2 days before the inspection, and I simply cannot
believe that an inspector is not influenced when an MSHA official
from headquarters brings something to his attention, Here, since
the note makes specific reference to section 57.19-100, and cites
the identical four pocket locations cited by the inspector in his
citations as being in need of gates, it seems obvious that the
inspector was influenced by the note and the complaint when he
issued the citations,
During the hearing, respondent made much of the fact that the
inspection had been prompted by a written complaint which had not
been furnished to the operator, Counsel argued that the statute
requires that copies of written complaints be furnished to an operator (Tr. 105-116). After considering the testimony presented, I
am persuaded that a written complaint was not in fact filed with MSHA
and that the operator's rights have not been violated in this regard,
As fo.r the complaint, the note, and the influence they may have had
on the inspector, I cannot conclude that this renders the citations
invalid. The fact of violation must be determined on the basis of
the evidence adduced to support the conditions cited and not on what
prompted the inspector to conduct the inspection in the first place,
The inspector was simply doing his job by following up on certain
alle~ations of a purported unsafe condition in the mine.
However,
the prior notation given to the inspector is relevant to the extent
that it indicates to me that he at least relied on it to some extent
in citing section 57.19-100.
In the final analysis, it seems clear to me that this case is a
classic example of a safety standard being applied by MSHA to a factual situation which simply does not fit. Although the parties seem

1553

to be in agreement that some protection is needed to prevent miners
from being injured, they are in total disagreement as to whether
the cited standard applies, and in support of their respective
after-the-fact arguments, have relied primarily on arguments concerning distinctions between the meaning of the terms "shaft landing"
and "loading" or "skip pockets." In this regard, I deem it appropriate at this point to include certain pertinent dictionary definitions of several terms used in this proceeding as they appear in the
Dictionary of Mining, Mineral, and Related Terms, published by the
U.S. Department of the Interior, 1968 Edition, and they are as
follows:
Shaft. An excavation of limited area compared with
its depth, made for finding or mining ore or coal, raising
water, ore, rock, or coal, hoisting and lowering men and
material, or ventilating underground workings. The term is
often specifically applied to approximately vertical
shafts, as distinguished from an incline or inclined shaft.
Landing. a. Level stage in a shaft, at which cages
are loaded and discharged. Pryor, 3. b. The top or bottom of a slope, shaft, or inclined plane. Fay. c. The
mouth of a shaft where the cages are loaded; any point in
the shaft at which the cage can be loaded with men or
materials. Nelson. d. The brow or level section at the
top of an inclined haulage plane where the loaded tubs are
exchanged for empty tubs or vice versa. Nels~.
Shaft pocket. a. Ore storage, excavated at depth,
which receives trammed ore pending removal by skip. Pryor,
3. b. Loading pockets of one or more compartments for
different classes ~f ore and for waste built at the shaft
stations. They are cut into the walls on one or both sides
of a vertical shaft or in the hanging wall of an inclined
shaft. Lewis, p. 257. c. See measuring chute. Nelson.
Shaft set. a. Supporting frame of timber, masonry,
or steel which supports sides of shaft and the gear. Composed of two wallplates, two end plates, and dividers which
form shaft into compartments. Pryo_E., 3. b. A system of
mine timbering similar to square sets. The shaft sets are
placed from the surface downward, each new set supported
from the set above until it is blocked in place. New wallplates are suspended from those of the set above by hanging
bolts. Blocking, wedging, and lagging complete the work
of timbering. At stations the shaft posts are made much
longer than usual to give ample head room for unloading
timber and other supplies. Lewis, pp. 45-47.

1554

Shaft station. a. An enlargement of a level near a
shaft from which ore, coal, or rock may be hoisted and supplies unloaded. ~· b. Enlarged space made to accommodate pump cru·sher, ore pockets, shunting, truck tripples,
etc. Pryor, 3.
Sk~p.
A guided steel hoppit usually rectangular with
a capacity from 4 to 10 tons and used in vertical or
inclined shafts for hoisting coal or mineral. It can also
be adapted for man riding. The skip is mounted within a
carrying framework, having an aperture at the upper end
to permit loading and a hinged or sliding door at the
lower end to permit discharge of the load. The cars at
the pit bottom deliver their load either direct into two
measuring chutes located at the side of the shaft or into
a storage bunker from which the material is fed to the
measuring chutes.

Skip loader I. In metal mining, one who loads ore
into skip (large can-shaped container) from skip pockets
(underground storage bins) at different shaft stations
in mine, operating a mechanical device to open and close
the gates of the loading chutes. Also called skipman;
skipper. [Emphasis added.]
Skip loader II. In metal mining, one who dumps ore
from mine cars directly into skip in mines not equipped
with skip pockets.
A review of the dictionary terms. set forth above reflects that
the terms "skip loading station" and "shaft landings" have separate and
distinct meanings. As indicated by ~he definition of the term "skip
loader," a skip loading station or pocket is a location where minerals are stored or loaded into a skip for transportation to the surface. In addition, the different mandatory standards previously discussed where those and similar terms are used, supports a conclusion
that those terms have different and distinct meanings. Logic distates that if the intent was not to give them different meanings, the
standards would not have referred to them. In addition, the testimony
reflecting the activities which normally take place during the mining
cycle, including the loading of ore at skip stations, persuades me
that the terms have different meanings in the real world of mining
underground. While it may be true that materials and men may be
loaded on and off a skip from time to time at a loading or skip pocket, I cannot conclude that this fact, per se, transforms a skip or
loading pocket into a shaft landing for purposes of the application
of section 57.19-100. I construe the standard to apply to shaft landings, and I conclude that it requires the installation of gates, without exception, so as to preclude materials from falling from the skip
or loading pocket into the shaft. However, I am not persuaded by
the fact that simply taking men and materials on and off any mine

1555

shaft landing necessarily means that gates have to be installed at
those locations. It seems to me that if MSHA desires to protect
miners from falling into a shaft at any such mine locations, it
should vigorously enforce the existing safety belt and line standard. If MSHA desires to protect men from the hazard of materials
falling into a shaft from a loading or skip pocket landing location
in a mine, it should vigorously enforce the standard requiring the
installation of protective devices at those locations. And, if MSHA
desires to prevent both men and materials at skip and loading stations or pockets from falling into mine shafts, it should promulgate
a clear and concise safety standard covering precisely that situation. The practice of rewriting safety standards through the adjudicatory and hearing process in a civil penalty setting is simply not
an appropriate or desirable way to promulgate such standards, particularly when both the operator and the enforcing agency seemingly are
in agreement that such a standard is in order.
In addition to the aforesaid enforcement problems dealing with
a standard which does not precisely fit the factual situation presented, I believe it is basically unfair to penalize a mine operator
by imposing civil penalty assessments in a situation where the mine
operator recognizes the safety problems presented and is makin; an
effort at compliance. In this case, I am convinced from the evidence
presented, that the respondent did not reasonably believe that any
mandatory standard required the installation of protective gates at
loading stations, installed a prototype of such a device at one such
location, and was in the process of devising and installing similar
devices at other such locations, The citations were issued because
a complaint had been filed, and the inspector issued the citations
because he believed the operator was "dragging his feet" and he candidly admitted this was the case. In my view, the intent of civil
penalties is to deter future violations. Here the citations were
used to nudge the operator into complying with a standard whose
application was questionable in the first instance. It seems to me
that something short of subjecting an operator to monetary civil penalties up to $10,000 and possible mine closure if he does not ultimately come into "compliance" would have achieved the intended purpose
of insuring a safe working environment for the miner working at the
skip loading areas cited. Further, I firmly believe that the promulgation of a precise and clear safety standard to prevent the types of
hazards alluded to in this proceeding would advance the interests of
safety simply because the operator would be put on notice as to what
was expected of him in terms of compliance and MSHA inspectors would
not be put in the tenuous position of not knowing which mandatory
standard to cite in a given situation, and they would not be placed
in the position of attempting to justify their judgment calls after
the citations are issued through a laborious and somewhat semantical
exercise and application of some other safety standard, which may, in
his view, be "close" but not quite on point. In the circumstances

1556

and facts presented here, and after careful consideration of all of
the facts and circumstances surrounding the issuance of the citations in question, I conclude and find that they should be vacated
and that the civil penalty proposals seeking assessments for the
alleged violations should be dismissed. My findings and conclusions
are based chiefly on the fact that the cited standard applies to a
shaft landing and MSHA has not convinced me by any credible evidence
that the skip or loading pockets in question are in fact shaft landings, or that the standard cited requires the installation of protective gates at skip or loading pockets. The citations are VACATED.
ORDER
In view of the foregoing findings and conclusions, IT IS ORDERED
that the following citations be vacated and the proposals for assessment of civil penalties for those citations be DISMISSED.
Citation No.

Date

30 CFR Section

346811
346812
349610
349611

5/11/78
5/11/78
5/11/78
5/ 11/78

57.19-:-100
57.19-100
57.19-100
57.19-100

In view of the foregoing findings and conclusions affirming
Citation No. 347006, and taking into account the six statutory
criteria in section llO(i) of the Act, a civil penalty in the amount
of $350 is assessed for this citation and respondent IS ORDERED to
pay that amount within thirty (30) days of the date of this decision.

Distribution:
Marshall P. Salzman, Trial Attorney, U.S. Department of Labor,
Office of the Solicitor, 450 Golden Gate Avenue, Box 36017,
Room 10404 Federal Building, San Francisco, CA 94102
(Certified Mail)
Daniel L. Poole, Esq., Suite 1010, Bank of Idaho Building,
P.O. Box 1559, Boise, ID 83701 (Certified Mail)
Standard Distribution

1557

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

October 4, 1979

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

Civil Penalty Proceeding
Docket No. MORG 79-77-P
A.O. No. 46-01440-02013
Alexander Underground Mine

THE VALLEY CAMP COAL COMPANY,
Respondent
DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Ronald Johnson, Esq., Schrader, Stanp and Recht,
Wheeling, West Virginia, for Respondent.

Before:

Chief Administrative Law Judge Broderick

STATEMENT OF THE CASE
The above case arose on the filing of a petition for the
assessment of civil penalties alleging three violations of mandatory
·safety standards occurring in August, September and November 1977.
The case therefore arose under the provisions of the Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 801 ~~· Pursuant to notice,
the case was called for hearing on the merits in Wheeling,
West Virginia, on September 5, 1979. George Messner, James E. Mackey
and John Radosevic testified on behalf of Petitioner, Tommy Tucker
and Arnold Miszaros, on behalf of Respondent. At the conclusion of
the hearing, the parties waived the filing of proposed findings and
conclusions and I issued a bench decision as follows:
JUDGE BRODERICK: All right. With respect to the violations alleged in this proceeding, I find, first, that the
Respondent at the time of the alleged violations was a
large operator. I further find that the Respondent's history of prior violations was not significant, and the
penalties assessed will not be increased because of that
history.

1558

With respect to the violation charged in Government's
Exhibit 2, which is Notice 3-GM issued August 23, 1977, I
find and conclude that the violation alleged was not established by the evidence, and therefore no penalty is·imposed.
With respect to the violation charged in Government's
Exhibit Number 6, Notice 2-GM, September-21, 1977, I find
that a violation of 30 CFR 70.201 was established by the
evidence showing that an inaccurate sampling was being
taken of the respirable dust in the mine atmosphere of the
004 occupation in the subject mine. I find that the violation was not serious. I find that it was not caused by
Respondent's negligence. I find that the condition was
abated promptly and in good faith. I assess a penalty of
$50 for this violation.
With respect to the violation charged in Notice
Number 1-JR, November 1, 1977, the Government's Exhibit 9,
I find that there was established a violation of 30 CFR
75.1403 because of the failure of Respondent to provide a
lifting jack and bar for the Number 7 and 9 self-propelled
personnel carriers in the subject mine.
This equipment was required by Safeguard Notice 1-CBS,
issued July 26, 1973. I find that the condition was not
serious, that there is no evidence that it was caused by
Respondent's negligence. I find that it was abated
promptly and in good faith. I assess a penalty of $75 for
this violation.
A written decision affirming these findings will be
issued, and an appeal time will run from the date of the
issuance of the written decision.
That concludes the record of this proceeding.
you very much, gentlemen.

I

thank

I hereby affirm the bench decision and make the additional findings and conclusions as follows:

1. Government's Exhibit G2, Notice No. 3 GM, August 23, 1977,
alleges a violation of 30 CFR 70.lOO(b) in that the average respirable
dust concentration exceeded the allowable limit for a particular occupation in Respondent's mine. This was based upon 10 samples submitted
by Respondent between June 15 and August 8, 1977. The evidence showed
that two of the samples were submitted in error, in that they were
taken from employees in another section of the mine. Absent the
two samples, the average concentration was within the applicable
limits. Respondent was charged with exceeding the respirable dust
concentration, not with failing to submit accurate samples. The violation charged was not shown to have occurred.

1559

2. Government's Exhibit G6, Notice No. 2 GM, September 21,
1977, alleges a violation of 30 CFR 75.201 in that a respirable dust
sampler belonging to a section mechanic was found to be operating on
the table in the dinner hole. The standard requires that accurate
samples be taken and the evidence clearly shows that a patently inaccurate sample was being taken. There is no evidence that Respondent was
aware of the facts prior to the notice being issued.
ORDER
Based on the above findings of fact and conclusions of law,
Respondent is ordered to pay, within 30 days of this decision, the
following civil penalties for the violations found herein to have
occurred:
30 CFR
Notice
Standard
Penalty
2 GM 9/21/77
1 JR 11/1/77

$ 50
75

70.201
75.1403

Total $125

J

J,/f~t,Lt/s

_,..,

_,.HJ

f

r1!J

cl?,//~ ~i

James A. Broderick
Chief Administative Law Judge

Distribution:
By certified mail.
Arthur M. Reclit; Esq., Attorney for The Valley Camp Coal Company,
Schrader, Stamp & Recht, 816 Central Union Building, Wheeling,
WV 26003
John H. O'Donnell, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson
~oulevard, Arlington, VA
22203

1560

22203

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

OCT s
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
WASHINGTON CONSTRUCTION COMPANY,
Respondent

l979

Civil Penalty Proceedings
Docket No. DENV 79-288-PM
A.c. No. 10-00634-05001
Docket No. DENV 79-323-PM
A.c. No. 10-00634-05002
Monsanto Quartzite Quarry

DECISION
Appearances:

Mildred Lou Wheeler, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner;
James A. Brouelette, E.E.O./Safety Officer,
Washington Construction Company, Missoula,
Montana, for Respondent.

Before:

Administrative Law Judge Michels

These proceedings were brought pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) (the
Act). The petitions for assessment of civil penalties were filed by
the Mine Safety and Heal~h Administration on January 30, 1979, and
February 9, 1979, respectively, and timely answers were filed thereafter. A hearing was held on July 26, 1979, in Missoula, Montana, at
which both parties were represented.
The parties agreed that the Washington Construction Company's
operations affect commerce within the meaning of section 4 of the
Act. (Tr. 5). The parties also agreed to settle in Docket No. DENV
79-288-PM, Citation Nos. 345011, 345017 &nd 345019 for the full
amounts assessed by the Mine Safety and Health Administration
which are respectively $30, $30 and $22. This settlement was
approved (Tr. 5-6).
Docket No. DENV 79-288-PM
Citation Nos. 345010, 345013 and 345018
Evidence was received in a consolidated fashion on the abovelisted citations and the decision and assessments were made from

1561

the bench. The decision from pages 54-59 with some necessary corrections and deletions follows:
THE COURT: May I see the exhibit, please? The decision from the bench on three of these citations is as follows: The citations are Nos. 345010, 345013, and 345018.
Each of these citations alleges the violation of mandatory
standard 30 CFR 56.12-32. This standard is mandatory, and
it requirei that "Inspection and cover plates on electrical
equipment and junction boxes shall be kept in place at all
times except during testing or repairs." The evidence
received indicates clearly that the cover boxes were off,
so it is a violation in each instance of that particular
manda·tory standard. It w~s the position of Mr. Brouelette
that these were housekeeping types of violations; but nevertheless, they do go contrary to the Act. So, I have really
no option except to find the violation; and of course the
other elements go to the amount of the penalty or the
assessment.
Now, I should make clear that as the Administrative
Law Judge, I am not bound by the point system used by the
Assessment Office. However, I try to make the assessment
on as rational a basis as I can taking into account all of
the evidence as well as the statutory criterion. If it was
not clear, I will now make it clear, and I hereby find a
violation of 30 CFR 56.12-32 for each of those three citations. I will now take into account or make findings of
each of the statutory criteria.
So far as past history is concerned, the evidence shows
14 citations, apparently all of which were issued on the
same occasion of this inspection. I find that this is not
an appreciable history. The evidence was received as to the
size of the operator. It appears that its production is in
the neighborhood of 200,000 tons per year, and employees,
500 to 1,500 [company wide].

*

*

*

*

*

*

*

It seems to me that company wide we have a medium size
company; but possibly for the site itself, it would be maybe
small to medium; and I so find. It was stipulated that the
fines to be assessed here would have no effect on the operator's ability to continue to do business. It was further
stipulated that the operator abated the violations in good
faith within the time allowed by the inspector.
So, as far as the gravity and negligence is concerned,
it would be my view that with some variations, which I don't

1562

think are necessarily too important, that the seriousness or
gravity and the degree of negligence are about the same for
the three. So, I will proceed to make findings for each of
the three violations on those further criteria. I will take
first the gravity.
I think I could accept in part that in these three
situations, the probability of serious harm or injury was
slight; and it is my impression from the inspector's testimony that he virtually agreed to that. I think that was
in part because of the location of the boxes, and the fact
that there was very little traffic near the boxes. On the
other hand, I don't want to underestimate the general
seriousness of any electrical violation. The standard where
the regulation was promulgated was for a good reason; and
that is, while most of the time possibly a person could put
his hand in that box and not be affected, there is also the
risk or the chance that because of some faulty connection
or a bare wire, a person could seriously be burned or electrocuted. Of course, while it is true that maybe this
wouldn't happen very often, it could happen where you have
poor visibility, people groping around, and accidentally
reaching into the box. So, there is that possibility.
Now, we can say that maybe in these instances it was
remote, but when you look at the overall history of mine
accidents, you see that you do have an accumulation of such
things. You have maybe not'too many of them, but you will
have one or two here and one or two elsewhere for some other
thing, and that again is quite remote; but the net effect
is to cause overall, a history of injuries and perhaps even
deaths, that the whole purpose of the Act is to eliminate.
So, I can't discount that that is serious in that sense.
I will find it serious with the qualifications that I
mentioned.
Now, so far as the negligence is concerned, in this
instance the lack of the covers was clearly visible, so it
is the kind of thing that I think that safety people would
normally expect the mine management and miners themselves
to note and to do something about it. I do appreciate, and
I will take into account the fact that in this case it is
apparently due to one particular person, and that person
is no longer working the mine. At first I was somewhat
impressed by the fact that there were, in these particular
cases, four of these violations which seemed to be sort of
a pattern and which suggested that maybe it was a very
serious case of negligence; but because of the circumstances I just related I understand this is now take~ care
of and will not happen in the future. So, taking that into

1563

account, I would just say it is a low degree of ordinary
negligence. I believe, then, that I covered all of the
criteria which brings me to the assessment.
In my experience, I would say that the amounts
assessed are not really excessive. I would think that
ordinarily those would be appropriate assessments. However,
I am going to take into account some of the factors that I
just mentioned for these particular cases. It is my understanding that the first assessment was somewhat larger
because of perhaps more access to that particular box. Considering all of these circumstances, I am going to make an
assessment of one-half of .the amounts originally asked,
namely, that would be for Citation No. 10, $16, for Citation No. 13 it would be $12, and for Citation No. 18 it
would be $12.
That completes my decision on these first three assessments. We may go to the next.

*

*

*

*

*

*

*

Citation No. 345012
Evidence was received on this citation and the decision and
assessment were made orally from the bench. It is recorded at
pages 72-74 of the transcript and with necessary corrections and
deletions is as follows:
THE COURT: I will now proceed to make the decision on
Citation No. 345012. The first consideration was whether or
not the Act or the regulation has been violated as charged.
The charge in this instance is that the conduit elbow had
broken causing some at least slight damage to the cables
to the Telesmith Cone Crusher Motor. Mr. Brouelette has
argued here that this should not be a violation because of
the lack of any hazard, in his view. Mr. Brouelette [also
argued there was no] violation in this particular instance
in that the condition, which existed, was [not] contrary to
the regulation.
Now, the regulation, that portion that the inspector
had in mind, requires that, "Cables shall enter metal frames
of motors, splice boxes, and electrical compartments only.
through proper fittings." The results of the broken elbow
and the cable then hanging loose meant that it was not
entering the box through proper fittings. It is not the
purpose of these regulations to decide in each case whether
or not there is a specific hazard before the violation
occurs. Maybe some of the regulations are written that way,

1564

but most of them just assume that if that condition existed,
it has the potentiality for a hazard under some conditions.
So, that is why a good electrical practice, I assume,
requires that those kinds of conditions not be allowed to
exist. Therefore, regardless of the degree of the hazard
or the possibility of harm, it is really not relevant as to
the question of whether or not there was a violation. If
the condition exists, there is a violation.
Now, maybe as a layman it is difficult for you to
understand that, but that is the way most of these regulations are written, and that is the way they are enforced.
So, with that in mind, I would find that because of these
broken connections and th? condition that has been described
and it is not disputed, as I understand it, that there then
was, and I do find a violation of 30 CFR 56.12-8. I should
say the findings have already been made as to all of the
criteria except as to gravity and negligence of the citation. so, I would just confine myself to those two
criteria.
As far as the seriousness i~ concerned, I just have to
believe that when a cable such as this is broken, and that
there is a vibration existing and the possibility, at least,
even though it may not be at all that great of contact,
electrical contact, that it is, what I would classify it as,
serious, and I so find. On the negligence factor, I think
it is clear. I don't believe it is really disputed that
this happened at the time that repair was done on the
machinery; so it was known and that should not have been
permitted to exist.
I will, however, take into account, even though there
is no evidence on the subject in the strict sense of the
word, the fact that the company had ordered parts for this.
I do that because Mr. Brouelette is not familiar with legal
procedures, and he did not have the evidence at hand; but I
will take his word for it under these circumstances that it
was on order. Thus, it seems to me that the company did
recognize the problem and was prepared to do something about
it. I don't think that that means that they are relieved of
all responsibility here. In some of these situations it may
be.that the machine simply cannot be operated if a danger
exists. However, I will take that factor into account and
I will do exactly, because of that factor, the same as I
did for the other assessments, and I will reduce it by
one-half. So, accordingly, I hereby assess for Citation
No. 345012 the sum of $15. That completes the decision in
this citation. You may go to the next citation.

*

*

*

*

*

1565

*

*

Docket No. DENV 79-323-PM
Citation No. 345020
Upon the receipt of evidence on this citation, a decision and
assessment were made orally from the bench. It is recorded at pages
101-105 of the transcript and with certain necessary corrections and
deletions reads as follows:
This is a decision in DENV 79-323-PM, which contains
a single citation. That citation is that the jaw discharge conveyor belt was used as a walkway to the drive
motor and was not provided with handrailing. The standard
cited as being violated is 30 CFR 56.11-2. This citation
reads, "Cross-overs, elevated walkways, elevated ramps,
and stairways shall ·be of substantial cons true ti on provided with handrails, and maintained in good condition."
That is a quotation, and that is the end of the relevant
part.
The only evidence on the far.t of the violation is that
of the testimony of the inspector and also the document which
is a picture. I don't understand that there is any contest
as to the facts. The conveyor belt was used by men, by
miners, including a supervisor, as a means of access to the
motor. The conveyor belt is, if I have it correctly, some
160 feet and rises to an elevation of as much as 30 feet at
the very tip. The specific issue, it seems, is [the operator's] contention that such a conveyor belt is not a walkway.
The regulation that I read does not specifically mention the
conveyor belt. At this point I should state that with these
regulations, these mandatory standards, that it is not infrequent that they do not mention specific pieces of machinery
and specific conditions; but they are written in a way, in
a general way to cover situations that come within their
scope even though they are not specifically listed.
Now, it would be very helpful here, of course, if this
was a matter that somebody had previously considered and
ruled on, and we would perhaps have authority then for
whether or not a conveyor belt used in this matter is a
walkway.
The argument of MSHA is simply, since it in fact was
used as a walkway, that therefore it is a walkway and therefore it is subject to the provisions of that particular
regulation. So, it would be up to me to make that decision,
and since I have decided to do it from the bench, I will
attempt to do so, keeping in mind, however, that I may be
ruling on something [for] which there may be legal precedent

1566

or other information which would bear on this and [of] which
I am unfamiliar.
So, my ruling, then, I think you should understand is
based on the confines of this case and the testimony and
evidence that we have taken here today. Now, I appreciate
the view that you have mentioned that [such] construction
of this particular standard could mean a lot of areas not
otherwise thought to be walkways [would be covered]; but I
am going to confine this to this particular condition and
piece of machinery which was a relatively long area, namely,
160 feet. It was elevated up to 30 feet, which is a long
way off the gro~nd, and c~rtainly would suggest a clear
hazard to miners using that. It, according to the statements made, is a relatively stationary piece of machinery.
It is not moved daily or monthly or even yearly. It stays
there more or less permanently, as these things go. It
would not be similar, at least I would not view it, to the
analogy made of a steel worker ·on a beam. These beams have
to be moved around to be put into place, and even there, I
am not confident that they don't require some kind of protection for those steel workers; but in any event, that is
a temporary, impermanent walkway kind of situation, and that
is not what we are dealing with here, as I see it, at least.
I see it as a more permanent situation, and I would accept
the position of the Government on this, that since it was
used in this manner, that therefore it does become a walkway.
I will take into account, I think, a little bit, at
least in the assessment, the fact that this does come as
something new. Even the inspector was not completely sure
about it. He had to consult his supervisor, and in that
kind of situation, I suppose that we can't expect the companies subject to these regulations, then, to know either.
So, therefore I think that that ought to be a big consideration in the assessment of a penalty, namely, this is more
like a warning rather than a severe penalty for something
that should clearly be done; but having said that, then,
and I hope having made myself fairly clear, if not completely satisfactory to everybody concerned, I will find,
then, that based on the use of this conveyor belt as a
walkway and the fact that it had no guard rail, that it
was a violation as charged of 30 CFR 56.11-2.
Findings have already been made on all the criteria
except as to gravity and negligence. So as far as the
gravity is concerned, I think there is no question that it
is a serious matter. Even though these men are experienced

1567

and are aware of the hazard that is there, and almost anything could happen to cause a severe injury to a miner, so
I would find that the violation is serious. Now, as to t~e
negligence, I have already covered that in part. Surely
the company did know there were no handrailings, and even
the supervisor used it; but what they did not know and could
not apparently know, there being no history of this being
cited as a violation, that that would be construed to be a
walkway. So; therefore, the negligence in this instance
would be minimal. It would be slight negligence in my view,
and for that reason, then, I would reduce the penalty to
what I would consider just a nominal penalty in this circumstance. In that I consider this in the nature of a warning,
and so therefore it shoulo not be a severe penalty. With
that in mind, I would assess a penalty for this alleged violation of $5.

*

*

*

*

*

*

*

The following is a summary of the assessments made or agreed upon
herein:
Docket No. DENV 79-288-PM
Citation No.

Penalty Assessed or Agreed Upon

345010
345011
345012
345013
345017
345018
345019

$ 16
30
15
12
30
12
22
$137

Total
Docket No. DENV 79-323-PM

Penalty Assessed

Citation No.
345020

$

Grand Total

5

$142

ORDER
It is ORDEI{ED that the Respondent pay the total penalties of $142
within 30 days of the date of this decision.

e>{~c!l.~
Administrative Law Judge

b68

FED!ERJU.. iVHM~ S;\FEYV AND }JEALY&-J

~~f..VFi.'W co:vm!HSSiO~\i

OFFICE OF ADMINISTRATIVE LAW JUDGES'
4015 WILSON BOULEVARD
ARLINGTON, VIRG li\llA 22203

OCT s
SECRETARY OF LABOR,
MINE SAFE TY i\ND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

1979
Civil Penalty Proceeding
Docket No. BARB 79-260-P
A.c. No. 15-05345-03001
Siler Tipple

KENTUCKY BLUE COAL COMPANY,
Respondent
DECISION
Appearances:

DarryJl.A. Stewart, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Tommy Ray Lanham, 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
September 12, 1979. After considering evidence submitted by both
parties, and argument, I entered an oral opinion on the record at
the close of the hearing. It was found that the five violations
charged did occur. I also found that the violations were serious,
that they resulted from ordinary negligence on the part of Respondent, that Respondent was small in size, had but one previous violad.on, and had abated the violations in good faith. It was also
determined that a penalty otherwise warranted by consideration of
the other penalty assessment criteria provided by statute would have
no adverse affect on Respondent's ability to continue in business.
Consideration of these various criteria mandated levying penalties
for the five violations. Accordingly, Respondent was assessed the
following penalties:

Citation No.

Penalty

126479
126480
126485
126486
126487

$150

so

25
20
75

l569

ORDER
\..1herefore, it is ORDERED that Respondent pay MSHA the penalties
herein assessed totaling $320 within 30 days from the date of this
decision.

Distribution:
Dan:yi A. Stewart, Esq., Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
William H. Wilder, Vice President, Tommy Ray Lanham, Kentucky
Blue Coal Company, P.O. Box 750, Corbin, KY 40701 (Certified
Mail)

1570

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

OCT 5

1979

Civil Penalty Proceeding

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

Docket No. WILK 79-160-PM
A/O No. 06-00012-05002V

v.
North Branford Plant #7
NEW HAVEN TRAP ROCK-TOMASSO,
Respondent
DECISION APPROVING SETTLEMENTS
ORDER TO PAY
The Solicitor advises that he and the attorney for the operator
have discussed the alleged violations in the above-captioned proceeding.
Pursuant to such discussion, the Solicitor has filed a motion to approve
settlements agreed to by the parties.
This petition contains five 104(d)(l) orders. Three of these orders
were issued for failure to provide tail pulleys with guards. These
violations of 30 CFR 56.14-1 were originally assessed at $600 each.
The other two orders were issued for failure to provide berms on the
outer banks of elevated roadways. These two violations of 30 CFR
56.9-22 were also originally assessed at $600 each.
In his motion, the Solicitor recommends a settlement of $500 for
each violation. In support of these reductions, the Solicitor advises
that the originally assessed amounts were too high in light of the
fact that the inspection occurred within twenty days of the effective
date of the Act, giving the operator little time to uncover and abate
violations prior to that inspection. In addition, the Solicitor
attached to his motion a copy of the assessment sheet which he advised
contained findings regarding the six statutory criteria. However,
the assessment sheet contains no such findings. Only the assessed
amounts are listed. This kind of submission is inadequate and will
not be acceptable in the future. The Solicitor must set out his
views on the statutory criteria whenever he seeks approval of settlements.
Rather than disapprove the recommended settlements, I have
personally reviewed these orders. Based upon this review, I conclude
the violations are serious and that the operator was negligent.
However, I also accept the Solicitor's representation that the
inspection only occurred within twenty days of the effective date

1571

of the Act. The date of the inspection justifies the recommended
reduction especially since the settlements remain sufficiently
substantial to effectuate the purposes of the Act. The recommended
settlements are therefore, approved.
ORDER
The operator is ORDERED to pay $2,500 within 30 days from the
date of this decision.

{---,-·~J\\~
Paul Merlin
-- ·
Assistant Chief Administrative Law Judge
Distribution:
Ronald C. Glover, Esq., Office of the Solicitor, U.S. Department of
Labor, JFK Federal Building, Boston, MA 02203 (Certified Mail)
Thomas J. Pooley, Esq., Ashland-Warren, Inc., 675 Massachusetts Ave.,
Cambridge, MA 02139 (Certified Mail)

1572

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

OC'f

i ~:·

197S

ITMANN COAL COMPANY,
Applicant

Application for Review

v.

Docket No. WEVA 79-119-R
Withdrawal Order No.
0660641
Issued: April 26, 1979

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

Itmann No. 3 Mine

Appearances:

Karl T. Skrypak, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for Applicant;
David E. Street, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Respondent;
Mary Lu Jordan, Esq., for the United Mine Workers
of America, Washington, D.C.

Before:

Judge Kennedy
DECISION AND ORDER

On April 26, 1979 at 2:45 a.m., a haulage accident
occurred at applicant's Itmann No. 3 Mine. At 7:45 a.m. an
accident control and withdrawal order issued pursuant to
section 103(k), 30 U.S.C. 813(k), l/ of the Mine Act "to
ensure the safety of the miners until an investigation can
determine the cause or causes" of the accident. The equipment
l/

Section 103(k), 30 U.S.C. 813(k), of the Act provides:
In the event of any accident occurring in a coal
or other mine, an authorized representative of the
Secretary, when present, may issue such orders as he
deems appropriate to insure the safety of any person
in the coal or other mine, and the operator of such
mine shall obtain the approval of such representative,
in consultation with appropriate State representatives,
when feasible, of any plan to recover any person in
such mine or to recover the coal or other mine or
return affected areas of such mine to normal.

1573

and area covered by this order were "locomotive No. 784 and
the trolley system between No. 5 rectifier and No. 6 rectifier."
The Order was modified at 9:00 a.m. to permit the equipment
involved to be moved out of the area.
At 3:15 p.m. on the same day order of withdrawal No.
0660641 issued pursuant to section 107(a), 30 U.S. 817(a), 2/
of the Act on the finding that an imminent danger existed
"due to [a] kink in the trolley wire which caused the trolley
pole of the locomotive No. 784 to become disengaged from
such wire and the pole became free swinging along an area
of trolley wire supports and striking such supports forcing
the pole to swing across the locomotive striking and injuring
two employees." The equipment and area which were covered
by this order were "[a]ll track haulage locomotives that are
designed' [to] permit the pole to free swing if disengaged
from the wire and trolley system from No. 5 to No. 6 rectifier
stations." The Order was modified at 10:00 p.m." to allow
the use of haulage motors that do not have free swinging
trolley poles."
On April 29, 1979 at 11:45 a.m., the section 107(a)
immineat danger order was terminated because "[t]he track
haulage equipment at the Itmann #3 mine that have [sic] free
swinging trolley poles have been modified to prevent the
poles from swinging across the motor decks when they become
disengaged from the trolley wire."
2/

Section 107(a), 30 U.S.C. 817(a), of the Act provides:
If, upon any inspection or investigation of a coal
or other mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent
danger exists, such representative shall determine the
extent 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.

1574

At 12:00 noon on the same day, the section 103(k)
control order was terminated because "[t]he investigation of
the serious haulage accident has been completed and the
trolley wire and the modifications to the haulage equipment
appeared to be adequate for the resumption of use."
The captioned Application for Review was filed on May 11,
1979, alleging that the condition described did not constitute
an innninent danger and that the order was invalidly issued.
On September 6, 1979, applicant filed a motion for sunnnary
decision pursuant to 29 C.F.R. 2700.64, by which it seeks a
finding that a section 107(a) innninent danger closure order
may not properly be issued in an area and on equipment
already covered by a section 103(k) control order. On
September 24, 1979, the United Mine Workers of America filed
their opposition to applicant's motion, and on September 26,
1979, the Secretary filed his opposition. There being no
genuine issue as to the material facts, 3/ the matter stands
ready for sunnnary decision of the question of law presented.
Applicant admits that the section 103(k) order was
properly issued to control the scene of the accident so that
a thorough investigation could be conducted. Applicant
further concedes that the Secretary may cite an operator for
any violations of the Act or of the mandatory standards
which are disclosed by the investigation. 4/ Applicant
contends, however, that as a matter of law-"it is impossible
for MSHA to make the necessary section 107 (a) .tnnninent
danger finding when miners have been withdrawn from the area
by the section 103(k) Order." (Motion p. 5) It is further

3/

The United Mine Workers takes issue with applicant's
characterization of the 107(a) order as covering "essentially
the same" area and equipment as the 103(k) order. This
contention is, however, not material to the determination of
the question of law presented.
4/ Since the condition which caused the accident, namely the
Kink in the trolley wire, was not a violation of a mandatory
safety standard, a penalty will not be assessed. At this stage
of the proceeding, it is unnecessary to express any opinion
or finding with respect to the claim that the condition
constituted an innninent danger. Whether the condition merits
the issuance of an improved standard that might require
inspection of trolley wires for conditions that may result
in fatalities or injuries is not before us.

1575

suggested that since section 103(k) grants the Secretary
broad authority to make recommendations as to corrective
action to be taken before the Order was terminated, and
since the miners had already been withdrawn, the issuance
of a section 107(a) imminent danger order during the accident
investigation was unauthorized.
(Id.)
The only authority cited by applicant in support of its
position is my decision in Eastern A~sociated Co~l.Corz.,
HOPE 73-663 (February 12, 1974), affirmed as modified
IBMA
298 (June 25, 1975). This reliance, however, is clearly
misplaced since I held merely that in the absence of a
condition or practice constituting an imminent danger an
imminent danger closure order may not be used for control
purposes. In that case I vacated the imminent danger order
because the inspector had no reason to believe that the
fatal haulage accident was the result of an imminent danger,
no inspection or investigation had disclosed the existance
of such a danger, and the 6rder was issued solely for control
purposes. I pointed out that section 103(f) of the 1969
Act, the parallel provision of section 103(k) of the 1977
Act, is an independent grant of authority that permits
federal mine inspectors to take control of the scene of an
accident and to issue any type of order, including imminent
danger orders, appropriate to insure the safety of persons
in the mine. Anticipating the very issue which applicant
raises here I clearly stated:
So that there be no misunderstanding as to the scope
of our ruling, we wish to emphasize that the operator
does not contend, nor do we hold, that a section 104(a)
order of withdrawal may not be appropriate and warranted
within the meaning of section 103(f) where a proper
surface or underground inspection at the scene of a
mine accident discloses the existance of an imminent
danger. Id. at p. 17.
Indeed, this decision is in accord with a line of cases
which have rejected applicant's position. In Valley Camp Coal Co.,
1 IBMA 243 (December 29, 1972), the operator argued that an
imminent danger order could not properly issue when all
personnel had voluntarily withdrawn from the mine prior to
the inspection. Rejecting this contention the Board stated:
Valley Camp bases its argument on an erroneous
belief that an order of withdrawal cannot properly
be issued if no miners are in the mine when the order
is issued. We previously rejected this argument in

1516

UMWA District #31 v. Clinchfield Coal Co., 1 IBMA 31,
41 (1970), wherein it was held that because an order
of withdrawal not only takes the miners out of the
mine, but also keeps them out until the danger has been
eliminated, an order of withdrawal may be issued when
no miners are in the mine. 1 IBMA at 248.
Thus, the mere fact that miners have been withdrawn
prior to the issuance of an imminent danger order does not
invalidate that order. In Eastern Associated Coal Corp. v.
IBMA, 491 F.2d 277 (4th Cir. 1974), it was held that an
imminent danger order is valid even though prior to issuance
the operator had volu~tarily withdrawn the miners and was in
the process of abating the condition. The validity of an
imminent danger order depends solely upon whether the condition
or practice could reasonably be expected to cause death or
serious physical harm "if normal mining operations were
permitted to proceed in the area before the dangerous condition
is eliminated." 491 F.2d at 278. The purpose of the imminent
danger order is not only to withdraw the miners, but also
to keep them withdrawn until the condition is corrected.
The question of the effect of simultaneous closure
orders was first considered in Roscoe Pa~e, et al. v.
Valley Camp Coal Co., 6 IBMA 1 (January 8, 1976). The
miners who were idled by an unwarrantable failure withdrawal
order filed for compensation. The operator defended on the
ground that no miners were idled by the order because they
had previously been withdrawn by an accident control order
pursuant to section 103(f) of the 1969 Act. The Board
rejected the contention that the control order invalidated the
overlapping unwarrantable failure order. 6 IBMA at 6.
Finally, in a decision directly on point, Peabody Coal Co.,
VINC 77-40, 77-50 (March 1, 1978), affirmed (Sept. 7, 1979), it
was held that miners were entitled to compensation as a
result of the valid issuance of an imminent danger order
even though a control order was already in effect. This
follows because, "the purpose of [an imminent danger] withdrawal order is not only to remove the miners but also to
insure that they remain withdrawn until the imminent danger
has been eliminated." Id. at p. 7.
Thus, it is apparent that in the case at hand the
section 103(k) control order was issued for the purpose of
facilitating the investigation of the haulage accident.
When the inspector determined that the cause of the accident
which killed one miner and seriously injured another was an

1577

imminently dangerous condition which could reasonably be
expected to cause death or serious physical harm if normal
operations were permitted to proceed, he issued a section
107(a) order which required that all haulage locomotives
which had booms that could swing free if disengaged from the
trolley wire must be appropriately modified. When this was
accomplished the imminent danger order was terminated, and
when the investigation was concluded the control order was
terminated.
The premises considered, I must conclude that the
section 107(a) order No. 0660641 was not defective merely
because it was issued in an area and on equipment already
covered by a section 103(k) control order.
Accordingly, it is ORDERED t t applicant's motion for
summary decision be, and hereby · , DENIED.

Distribution:
·David E. Street, Esq., U.S. Department of Labor, Office of
.the Solicitor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Harrison B. Combs, Jr., Esq., United Mine Workers of America,
900 15th Street, N.W., Washington, DC 20005 (Certified
Mail)
Karl T. Skrypak, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)

1578

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

OCT 11 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. HOPE 79-306-P
A.O. No. 46-01514-03002
Eccles No. 6 Mine

v.

WESTMORELAND COAL COMPANY,
Respondent
DECISION AND ORDER APPROVING SETTLEMENT
The parties move for approval of a settlement of the four
respirable dust violations charged at a 35% reduction in the amount
initially assessed, i.e., from $850.00 to $540.00.
For the reasons advanced by the parties and based on an independent
evaluation and de novo review of the circumstances including the challenge
to the validity~f the standard raised by the operator (See, Judge
Moore's decision in Olga Coal Company, Docket No. HOPE 79-113-P, June 28,
1978 appeal pending), I find the settlement proposed is in accord
with the purposes and policy of the Act.
Accordingly, it is ORDERED that the motion to approve settlement
be, and hereby is, GRANTED. It is further ORDERED that the operator
pay the penalty agreed upon, $540.00, on a before Friday, October 26,
1979 and that subject to payment the cap ·o ed petition be DISMISSED.

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

C. Lynch Christian, III, Esq., Jackson, Kelly, Holt & O'Farrell,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)

1579

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

OCT

1978

Application for Review

OLGA COAL COMPANY,
Applicant

Docket No. HOPE 79-111

v.

Order No. 253669
October 24, 1978

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

Olga Mine No. 2

UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

Michael T. Heenan, Esq., and M. Susan Carlson, Esq.,
Kilcullen, Smith & Heenan, Washington, D.C., for
Applicant;
James H. Swain, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
Pennsylvania, for Respondent;
Mary Lu Jordan, Esq9, united Mine Workers of
America, Washington, D.C., for Respondent.

Before:

Judge Forrest E. Stewart
Findings of Fact and Conclusions of Law

Olga Coal Company (Applicant) filed a timely application pursuant
to section 105(d) of the Federal Mine Safety and Health Act of 1977
(hereinafter the Act), 30 u.s.c. § 801 !!.~··requesting review of
Order No. 253669, issued October 24, 1978. Applicant also challenged
,the validity of the underlying citation which was issued under section 104(d)(l) of the Act.
A hearing was held on June 7 and 8, 1979, in Charleston,
West Virginia. Applicant called three witnesses and introduced five
exhibits. MSHA called three witnesses and introduced six exhibits.
The UMWA called one witness. Each of the parties filed a posthearing
b_rief.

1580

Underlying Citation
Citation No. 253350 was jointly issued by Federal coal mine
inspectors Robert Huffman and Lawrence Snyder on October 11, 1978,
pursuant to section 104(d) of the Act. The inspectors alleged a violation of 30 CFR 75.326, and described the condition or practice at
issue as follows: "The air passing over 10 Left section belt conveyor was being used to ventilate the active working section."
The inspectors also alleged that the condition was of such a
nature as could significantly and substantially contribute to a mine
safety hazard.
The event which led to the issuance of Citation No. 253350
occurred on October 9, 1978. The parties offered the following
stipulation concerning that event:
On October 9, 1978, there was a slippage of the fire
resistant belt near the belt drive. This s,lippage caused
intense smoke to permeate the 9 Left and 10 Left section entryways. These areas are marked by blue to indicate that they are in intake air. Smoke also permeated
the face area. Seven men were working in this area on
that day, five of whom used self rescuers to abandon this
area.
On the following morning, Inspector Snyder was informed of this
incident and, thereafter, he conducted an inspection of the 9 and
10 Left sections. The inspector examined the belt and ventilation
on the 9 Left section but he did not have the time to check ventilation on the 10 Left section that day.
Inspector Snyder returned to this area on October 11 in the company of Inspector Robert Huffman. While Inspector Snyder continued
his examination of the 9 Left section, Inspector Huffman proceeded
to check ventilation on the 10 Left section.
As Inspector Huffman proceeded along the belt entry, he observed
two stoppings which were leaking excessively. The inspector conducted smoke tests at these locations and observed that the air was
traveling from the belt entry into the intake entry. He explained
that a hole had been knocked out in one stopping to allow passage of
a plastic pipe from one entry into the next. Leonard Sparks, the
UMWA safety committeeman who accompanied Inspector Huffman, testified
that this pipe had been installed "for quite sometime." He was aware
of its presence because he had pumped water from the track through
that particular pipe. The unsealed area around the pipe was clearly
visible and was large enough to allow Mr. Sparks to place his fingers
in the hole around the pipe. A hole had been placed in the second
stopping to permit the passage of a rock dust hose.

1581

Inspector Huffman also performed smoke tests at a diagonal door
which separated the belt entry from the intake entry. He observed
that the air migrated very rapidly into the intake escapeway. The
inspector,testified that the door was damaged and had been installed
on the wrong side of the stopping. It remained open approximately
12 inches when he tried to close it.
After Inspector Huffman examined the diagonal door, he met
Inspector Snyder, who also examined this area. Inspector Snyder
agreed to sign the citation because his examination of the diagonal
door convinced him that a violation existed. Mr. Sparks' testimony
corroborated that of the inspectors.
To determine whether Citation No. 253350 was properly issued pur~
suant to section 104(d) of the Act, it must be determined (a) whether
a violation of 30 CFR 75.326 existed as alleged and, if. so, (b)
whether the violation was such nature as could significantly and substantially contribute to the cause and effect of a coal mine safety
hazard, and (c) whether the violation was caused by an unwarrantable
failure of the operator to comply with section 75.326.
The applicable portion of section 75.326 reads as follows:
Whenever an authorized representative of the Secretary
finds, in the case of any coal mine opened on or prior to
March 30, 1970, which has been developed with more than two
entries, that the conditions in the entries, other than
belt haulage entries, are such as to permit adequately the
coursing of intake or return air through such entries, (a)
the belt haulage ~ntries shall not be used to ventilate,
unless such entries are necessary to ventilate, active
working places, * * *•
The parties stipulated at the hearing that the Olga Mine was
opened prior to March 30, 1970, but that the particular working section opened after that date. This working section had been developed
on four entries, one of which was the belt entry. It is clear that
the belt haulage entry was not necessary to ventilate the active
working places.
To establish a violation of section 75.326, the Secretary must
also show:
(1) that an authorized representative of the Secretary had found
that the conditions in the entries, other than belt haulage entries,
are such as to permit adequately the coursing of intake or return
air through such entries, and,
(2) that the belt haulage entries were being used to ventilate

active workings.

1582

With res_pect to the requirement that a finding be made, Applicant
asserted the following:
As a condition precedent to a showing of a violation
of 30 CFR §75.326 with respect to any mine opened before
March 30, 1970, it must be shown that a specific finding was
made by the Secretary and communicated to the mine involved
that "conditions in the entries other than belt haulage
entries, are such as to permit adequately the coursing of
intake or return air through such entries." The Secretary
has failed to establish by a preponderance of the evidence
in the present case that any such finding was ever specifically made and communicated to the Applicant so as to
make this section applicable to Olga Coal Company.
The Secretary contended that an adequate finding had been made,
asserting the following:
Here, there is approval of a ventilation plan which
does not call for the use of beltway air to ventilate the
working areas of the 9 and 10 left sections of the mine.
There is also the stipulatioP that the ventilation in this
specific area was modified and determined to be adequate
without the need for belt haulageway air. This constitutes
adequate notice to the operator. The operator actively
participated in the modification process, and submitted
the ventilation plan for approval.
The citation did not contain the specific statement that the
authorized representative had found conditions in the entries to be
such as to permit adequately the coursing of intake or return air.
The regulation, however, requires only that such a finding be made.
There is no requirement therein that this finding be communicated to
the operator. Certainly the regulation does not require that a
formal finding be made pursuant to section 75.326 and then connuun1cated to an operator before the section may be applied.
Applicant's argument is particularly weak in the case at hand
because Applicant had actual knowledge that the entries on the
affected sections were such as to perrcit adequately the coursing of
intake or return.air. The ventilation plan, to which Applicant had
acq.uiesced, already called for the ventilation of working areas on
these sections with air other than that of the belt entry. The
effort to separate belt air from that of the other entries had been
made by the Applicant prior to Mr. Caffrey's inspection. This effort
was unsuccessful because of improperly maintained stoppings, not
because of the condition of the entries on the section.
The conditions in these entries were such as to permit adequately the coursing of intake or return air. It is true that a preliminary finding to that effect had to be made before the inspector

1583

could conclude that a violation of section 75.326 existed. This
preliminary finding was made by the inspectors before they issued the
subject citation. Two days had been spent inspecting the'ventilation
on sections 9 and 10. With regards to the requisite finding, the conditions in the entries were obvious enough that the inspectors did not
have to enunciate that finding in the citation.
The belt entry was being used to ventilate the active working
within the meaning of section 75.326. That belt haulage air entered
working areas is uncontradicted. The smoke tests performed by Inspector Huffman indicated that air was traveling very rapidly from the
belt entry into an intake entry, and from there to the active working
places. This was not an instance of isolated, unsubstantial leakage,
nor one in which the failure to separate the belt entry made it possible that leakage might occur. The October 9th contamination of the
working places with smoke generated in the belt entry provides dramatic evidence that air from. that entry had been used to ventilate the
active workings.
Applicant asserted that the leakage of air from the belt entry
was unintentional and that unintentional leakage does not constitute
a use of belt air to ventilate active workings in violation of
section 75.326. This contention is rejected. There is nothing in
section 75.326 which requires that the use of belt entry air for
_ such ventilation be intentional.
/~

The condition which gave rise to Citation No. 253350 was a violation of 30 CFR 75.326 as alleged.
The condition described by the inspectors and the UMWA witness
as existing on October 11 was more than a technical violation. That
it had the potential to contribute to the creation of a serious mine
hazard had been all too graphically demonstrated by the contamin~tion
of the section that had occurred 2 days earlier. Both inspectors
testified that the leakage they observed between the belt and the
intake entries could significantly contribute to a mine hazard. Each
believed that, given the leaks that were present on October 11,
another belt fire would have produced the same situation that had
occurred on October 9, 1978. Had another fire occurred, the miners
on the longwall face would have been enveloped once again in smoke.
Neither inspector felt that the possibility of another fire was remote
and Inspector Huffman described the conditions he observed on the
11th· as "very near an imminent danger." The violation was clearly of
such a nature as could significantly and substantially contribute to
the cause and effect of a mine safety hazard.
A finding that a violation was caused by the unwarrantable failure on the part of the operator is proper if the inspector determines
that: "The operator involved has failed to abate the conditions or

1584

practices the operator knew or should have known existed or which it
failed to abate because .of a lack of due diligenc·e , or because of
indifference or lack of reasonable care. 11 Zie&ler Coal Companz,
7 IBMA 280, 296 (1977).
This violation was caused by the unwarrantable failure of the
operator. The operator demonstrated a lack of due diligence in -its
failure to discover and abate the conditions which caused the active
working section to be ventilated with belt entry air. The October 9th
contamination of the longwall face put the Applicant on notice that a
hazard existed on the section. The doorway and holes in the stopping
provided an obvious avenue for smoke from the belt to reach the working section. In view of the seriousness of the hazard, these apertures should hav~ been .detected and repair efforts undertaken.
The condition which existed along the belt entry on October 11,
1978, was in violation of section 75.326, was of such a nature as
could significantly and substantially contribute to the cause and
effect of a mine hazard, and was caused by .unwarrantable failure on
the part of the operator. It was, therefore, properly issued under
section 104(d) of the Act.
Order No. 253669
Order No. 253669 was issued by inspector William Uhl on
October 24, 1978 , in the course of a regular inspection of Olga Mine.
The inspector cited a violation of 30 CFR 75.400 and described the
condition or practice at issue as follows:
Loose coal, coal dust and float coal dust wete permitted to accumulate along the active shuttle car haulageway, No. 3 entry, 3 North section, I.D. 031. These
accumulations ranged in depths from 0-20 inches beginning
at the section dumping point and extending inby to the
Nos. 1 & 2 pillar ·blocks. A distance of approximately
600 feet.
To determine whether Order No. 253669 was properly issued,
it must be determined (a) whether th~ violation of section 75.400
existed as alleged, and, if so, (b) whether the violation was caused
by an unwarrantable failure on the part of the operator.
The elements of MSHA's prima facie case, as set forth in Old Ben
Coal Companz 8 IBMA 98 (1977), are as follows:
(1) that an accumulation of coal dust, float coal dust
deposited on rock dusted surfaces, loose coal, or other
combustible materials existed in the active workings of
a coal mine; (2) that the coal mine operator was aware,
or, by the exercise of due diligence, should have been

1585

aware of the existence of such accumulation; and (3) that
the operator failed to clean up such accumulation, or
undertake cleanup, within a reasonable time after discovery, or after discovery should have been made.
Evidence of record clearly establishes that accumlations of coal,
coal dust and float coal dust existed along the shuttle car haulageway
in the 3 North section on October 24, 1978. The witnesses for Applicant and Respondent differed as to the extent of these accumulations.
Inspector Uhl testified that a reasonable man would have considered
the accumulations excessive.
From the size of the accumulation, Mr. Uhl estimated that it had
probably developed over a period of several shifts. The testimony of
section foreman, Hubert Patterson, established that the accumulations
had occurred during the three full mining shifts between October 19
and 24.
Mr. Uhl measured the accumulations he observed and determined
that the accumulations ranged in depths from 0 to 20 inches. He testified that for the most part the accumulations were 8 to 10 inches
deep for the entire 600-foot length of the active shuttle car haulage
road, and extended for 14 feet across the width of the entry.
Since the company officials apparently disagreed with his conclu-·
sion that a violation existed, Mr. Uhl decided to take dust samples to
substantiate his order. Although this area is required to be maintained at a 65 percent incombustible level, the analysis of Mr. Uhl's
samples indicated that the accumulation present in the 3 North section
ranged from 10 to 25 P.ercent incombustibility.
Applicant's witnesses testified that the accumulations were far
less extensive than the inspector claimed. They agreed that there
had been some spillage of coal at points along the entry, but that
the only large accumulation existed at one particular corner.
Mr. Smallwood, Applicant's safety director, testified that coal had
accumulated at this corner to a depth of ·8 to 10 inches for the
entire width of the entry and a distance of 15 to 20 feet.
The conclusions of Inspector Uhl are accepted here. He based
his finding that the accumulations existed and were excessive on
measurements, dust samples and visual observation. Of Applicant's
witnesses, only Hubert L. Patterson, a foreman on the 3 North section, took depth measurements. The three measurements taken by
Mr. Patterson complemented, rather than contradicted, Inspector Uhl's
findings.
The operator, through Section Foreman Patterson, was aware of
the existence of the accumulation. Inspector Uhl testified that
Mr. Patterson had stated that the foreman on the preceding shift had

1586

mentioned the need for a cleanup. Mr. Patterson denied having spoken
with the foreman from the previous shift and did not remember making
any such statement to the inspector. However, he testified that he
had observed the accumulations during an early shift inspection of
the section and that he wanted to clean them up.
Moreover, the operator should have been aware of these accumulations of coal. They were visually obvious and had been building up
for three production shifts.
Finally, the operator failed to undertake cleanup within a re~
sonable time after the accumulations were discovered or should have
been discovered. The accumulations were extensive and had a high
content of combustible material. In the opinion of the inspector,
the condition was close to being an imminent danger. The accumulations presented a serious hazard and warranted immediate action. No
such action was taken.
In addition, Applicant's cleanup program called for cleanup of
the haulageway "as required." When the inspector arrived, shuttle
car operators were cleaning their equipment in compliance with one
of the provisions of the cleanup program. No effort had been undertaken, however, to clean the haulageway despite the fact that coal
had been building up for three production shifts. Oden Strong,
superintendent of the Olga Mine, testified that it was not the practice at the mine to fail to clean up a section for three working
shifts.
The conclusion that the operator failed to undertake cleanup
within a reasonable time is warranted in view of the seriousness of
the hazard present, as well as its failure to comply with its own
cleanup program.
MSHA has established that a violation of section 75.326 existed
as alleged.
A finding that a violation was caused by the unwarrantable failure on the part of the operator is proper if the inspector determines
that the operator failed to abate the conditions or practices constituting the violation, which it knew or should have known existed or
which it failed to abate because of a lack of due diligence, indifference or reasonable care. As noted above, the operator had knowledge,
or should have had knowledge of the excessive accumulations.
Applicant asserted that the key issue presented herein is "what
was the proper way for the section to be mined considering all appiicable safety concerns?" The Applicant contended that its foreman
recognized the existence of two safety hazards on the section and
attended to the more serious of the two. Because the section has a
very hard top and is subject to substantial pressure, the ribs of

1587

the pillars on the section are prone to bumping and its floors tend
to heave or buckle upward. The foreman attempted to complete the
mining of two pushouts, one on each of two pillars, in order to
reduce pressure 6n the section and decrease the likelihood that
heaving or bumping would occur. It was asserted that the mining of
the pillar and a cleanup were mutually exclusive because it was
difficult to clean the accumulations without recutting the buckled
floors, and the continuous miner was the only piece of equipment
available on the section which could perform both tasks.
Mr. Patterson offered somewhat contradictory testimony as to the
length of time taken to remove the two pillars which were being mined
at the time. At one point, he stated that it. took 2-1/2 days. He
also testified that the mining of those pillars began after the last
cleanup had occurred on the section, three production shifts earlier.
It it; accepted that once mining of a pillar has begun, it should be
mined to completion so as to minimize the occurrence of bumping or
heaving. Yet, in the course of these three critical production
shifts, coal had accumulated in hazardous amounts.
Applicant's "greater hazard" argument is rejected. Both conditions posed a hazard to those working on the section. The accumulation of coal was the result of a breakdown in Applicant's cleanup
program which called for section cleanup "as required." As noted
above, Oden Strong testified that it was not the practice at the Olga
Mine to fail to clean up a section for three shifts. When cleanup
was required on this section, mine personnel were either unwilling
or unable to effect it. The operator failed to act when presented
with a serious safety hazard, and failed to maintain its established
cleanup procedure. The violation was, therefore, the result of an
an unwarrantable failure on the part of Applicant.
Accordingly, Order No. 353669 was properly issued.
ORDER
The above-captioned application for review is hereby DISMISSED.

Forrest E. Stewart
Administrative Law Judge

1588

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

OCT 1 2 1979

Civil Penalty Proceeding

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

Docket No. DENV 79-246-PM
A.C. No. 02-00826-05001

v.
Hayden Concentrator Mine
KENNECOTT COPPER CORPORATION,
RAY MINES DIVISION,
Respondent
DECISION AND ORDER APPROVING SETTLEMENT
OF CIVIL PENALTY PROCEEDINGS
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
Patrick W. Paterson, Esq., Fennemore, Craig,
von Ammon & Udall, Phoenix, Arizona, for Respondent.

Before:

Administrative Law Judge Michels

This is a civil penalty proceeding brought pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ S20(a), by the Mine Safety and Health Administration (MSHA)
against Respondent, Kennecott Copper Corporation. On September 12,
1979, a hearing was held in Phoenix, Arizona, at which both parties
were represented by counsel.
When the hearing commenced, counsel for Petitioner proposed the
following disposition for this docket:
Mr. Salzman: Your Honor, these proceedings involve
five (5) citations. Regarding, four (4) of these citations, the Secretary, as a result of additional and
careful investigation, moves to dismiss four (4) of the
proposed penalties resulting from these citations.
These are citations numbers 371165, 371167, 371170
and 371174. The reason is that we do not believe that we
have the evidence to sustain the alleged violations.

1589

With respect to the remaining citation, 371166, the
Respondent has agreed to pay the full assessed amount.
We therefore move to settle this citation based upon
the payment of the full assessed amount and we believe
that the assessed amount was reasonable.
(Tr. 4-5)
Respondent advised the court that it concurred in this motion
(Tr. 6).
Since Petitioner had advised that it did not have sufficient evidence to sustain its burden on four of the citations and the proposed
settlement of Citation No. 371166 for $60, which is the full amount
of the original assessment, appeared to be sufficient, a decision was
issued from the bench approving the proposed disposition (Tr. 6).
This bench decision is hereby AFFIRMED. Accordingly,
The Citation Nos. 371165, 371167, 371170, and 371174 are vacated
and the petition is dismissed as to these citations. Respondent is
ordered to pay the sum of $60 for the violation in Citation No. 371166
within 30 days of the date of this decision.

/---~- iJIJ.~.. ;t!~

(.____.--/ ~ichels
Administrative Law Judge
Distribution:

Marshall P. Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, 450, Golden Gate Ave., Rm. 10404, San
Francisco, CA 94102 (Certified Mail)
Michael P. Green, Patrick W. Paterson, and William L. Thorpe,
Esqs., Fennemore, Craig, von Ammon & Udall, 100 West Washington
St., Ste. 1700, Phoenix, AZ 85003 (Certified Mail)

1590

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

OCT

ITMANN COAL COMPANY,

1979

Application for Review
Applicant
Docket No. HOPE 78-347

v.

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

Itmann No. 1 Mine

DECISION
Appearances:

Michel Nardi, Consolidation Coal Company,
Consol Plaza, Pittsburgh, Pennsylvania, 15241;
David L. Baskin, Trial Attorney, Office of the
Solicitor, U.S. Department of Labor, Division
of Mine Safety and Health, 4015 Wilson Boulevard,
Arlington, Virginia 22203

Before:

Judge Fauver

This proceeding was brought by Itmann Coal Company under section
105(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq., to review the validity of a citation and an order of
withdrawal issued by a federal mine inspector pursuant to section
104(d} of the Act.
The parties submitted prehearing statements pursuant to a notice
of hearing, and a hearing was held on November 14, 1978, in Arlington,
Virginia. Both sides were represented by counsel, who have submitted
their proposed findings, conclusions, and briefs following receipt of
the transcript.
Having considered the evidence and the contentions of the parties,
I find that the preponderance of the reliable, probative, and substantial evidence establishes the following:
FINDINGS OF FACT
Citation No. 248571

1. At all pertinent times, Applicant, Itmann Coal Company,
operated an underground coal mine known as the Itmann No. 1 Mine, in

1591

Wyoming County, West Virginia, which produced coal for sales in or
affecting interstate commerce.
2. At about 8:20 on the morning of April 6, 1978, Jack Bailey,
a miner's helper, arrived at his working section, the Guyan No. 2
panel section. During his preshift examination, he observed a crack
in the roof which he immediately reported to the section foreman,
Levi Holly. He also noticed that the roadway into the face was
abnormally wide and required additional supports.
3. Foreman Holly and another miner's helper, Dean Simmons,
walked up to the face and Mr. Holly sounded the roof for vibrations
by means of a hammer check on both sides of the crack. A hammer
check is considered to be a reasonable method, although not
fool-proof, for detecting cracks within 5 or 6 feet of the roof's
surface. The approved roof-control plan for the Itmann- No. 1 Mine
states that roof examinations shall consist of visual examinations
as well as the sound and vibration (hammer) method.
4. The foreman or,dered additional timbers, and Simmons set
about 20-25 posts to narrow the width where the roof was cracked,
but leaving enough room to operate the mining machine. Production
was started, but after two shuttle cars were loaded, the roof began
to creak and warp.
5. Federal mine inspector Steven Kowalski arrived at the Guyan
No. 2 panel section at about 9:30 that morning, accompanied by the
shift foreman, Mr. Green, and the miners' representative, Mr. Naylor.
Inspector Kowalski observed two fractures in the roof that extended
about 40 feet from the face and were about one-eighth to one-quarter
inch in width. Inspector Kowalski pointed out both cracks to the
shift foreman, Mr. Green.
6. I find that when Inspector Kowalski checked the roof, there
were two cracks, as he described. In reaching this finding I have
considered the fact that after the additional posts were installed,
the miner operator did not observe the roof; that the superintendent's testimony with respect to the number of cracks was not firsthand; that the foreman, Mr. Holly, who observed the roof during the
pFeshift did not testify (he is deceased); and that the inspector
ho.th kept notes of his observations and was able to identify two
cracks in reasonable detail.
7. No one was directly under the cracks, but the machine operator's position was near the right side of the cracks (facing inby),
and the cracks extended outby his position.
8. At the instruction of Mr. Green, the continuous miner was
pulled back, at which point the roof began to warp--it started cracking and popping, and fine particles began to fall--which I find indicated further deterioration in the condition of the roof.

1592

9. Inspector Kowalski issued a section 104(d) citation charging
a violation of 30 CFR 75.200 (roof-control plan), indicating that
approved Roof-Control Plan No. 4-RC-12-70-1154-4 was not being followed in the Guyan No. 2 panel section in the No. 1 pillar split on
the final lift near spad No. 6996, No. 2 entry because additional support, such as cross-sections or roof bolts, should have been used.
Under section 104(d)(l) of the Act, Inspector Kowalski included in
the citation findings that: (1) the violation could significantly
·and substantially contribute to the cause and effect of a mine safety
hazard, and (2) it was caused by an unwarrantable failure of the operator to comply with the cited standard.
10. The roof-control plan then in effect was formulated by the
superintendent, Richard Harris, and submitted to both MSHA and the
State Department of Mines for their approval. The approved plan
states at page 6:
1. This plan stipulates the minimum requirements for
roof supports and where conditions indicate, additional
supports are to be installed.

*

*

*

*

*

*

*

4. Where miners are exposed to danger of falls of
roof, face, and ribs, the workman shall examine and test
the roof, face, and ribs before any work or machine is
started, and as frequently thereafter as may be necessary
to insure safety * * *· Roof and rib examinations shall
consist of visual examination and the sound-and-vibration
method.
11. At the site involved, pillar lift No. 11, Applicant was
engaged in retreat mining, which called for compliance with drawing
No. 9 of the plan. This drawing, entitled "Pillar Recovery Continuous Mining," reads:
1. This plan is to be used when conditions make it
necessary to advance through the pillars and mine the
wings on the retreat from the same opening.

*

*

*

*

*

*

*

5. Pillar split is supported, as shown in Drawings
Nos. 1, 2, 4, or 5.
12.

At the option of the Applicant, drawing No. 5 was selected.

It provided:

Entries, Rooms, Crosscuts, Barriers, Pillar Splits,
and Places Being Reactivated for Roadways.

1593

1. Plan shown is minimum support for normal conditions. Additional posts, crossbars, or cribs shall be
installed where needed.
13. In retreat mining, cracks in the roof are not an unusual
occurrence. Roof falls are planned after the final pushout of a
pillar split. A hole is first cut through the middle of a block of
coal, which is about 6 or 7 feet high and about 20 feet wide. After
the initial cut, which is called a split, two wings remain on either
side. When the final lift is mined, very little of the split remains,
and there is no reason for the miner, equipment, or anyone to remain
in the split area. The term "lift" refers to the process of cutting
off the ends of the block. In this type of mining, roof support is
no longer needed after the coal is removed.
14. The cited roof condition was abated the same day, about
2-1/2 hours later, by inserting 15 to 20 4-foot roof bolts at 4-foot
centers. The miner was removed and a roof-bolting machine was
brought in. Temporary supports were installed while the bolts were
put in the roof. As the roof bolts were being installed, two wide
roof cracks were discovered, about 18 and 24 inches wide, even though
the section foreman had earlier sounded the roof for vibrations.
15. I find that the roof condition could have significantly and
substantially contributed to the cause and effect of a mine safety
hazard. Falls of the roof, face, and ribs are the No. 1 killer in
coal mining, and can happen in any mine. In geological terms, the
roof was shale and is considered to be unpredictable. By the time
the inspector arrived, the roof was worsening, indicating that the
additional posts were not providing adequate support. In the
event of a roof fall, the left side of the mining machine probably
would have been covered, and the machine operator may have been
struck. Headlight cables were located on the left side of the miner,

so that a roof fall might have caused a mine fire or electrical hazard.
Additional findings as to the roof condition are included in the Discussion.
Order No. 248578
16. On April 11, 1978, Inspector Kowalski returned to the
Itmann No. 1 Mine and inspected the Nos. 1 and 2 conveyor entries in
the pinnacle section, which was an active working section. He was
accompanied by the shift foreman, Mr. Green.
17. Before going underground, Inspector Kowalski checked the
belt examiner's books, which are kept in the office on a table where
the section foreman makes out the reports. All management personnel
are supposed to read these books.
18. The conveyor belts, which are used for carrying coal, are
supposed to be examined after each production shift has begun, but
not necessarily at the beginning of the shift.

1594

19. Inspector Kowalski and Mr. Green came into the area where
the belt and track meet. The No. 1 and No. 2 belts converge at right
angles. As they walked toward the crossbelt area, the inspector
observed behind the door an accumulation of float coal dust.
20. At the time of the inspection, the belts were running and
float coal dust was apparent in the air. Float coal dust did not
remain suspended in the air when the belts were not running.
21. The .belt system was shut off and they crossed over to the
other side. The inspector pointed out a pile of float coal dust which
appeared to be about 9 inches deep. He found different measurements
of dust at different locations, ranging from one-sixteenth of an inch
to 9 inches deep. At some points, there was rock dust underneath the
float coal dust, and at others, there were just accumulations of coal
dust. The largest accumulations were near the No. 2 head area, or
at the crossbelt. Dust ran back down the No. 1 belt about 80 feet,
toward the mine cars at the No. 1 head. The belt head is the
beginning of the belt, where the belt drive, the motor, and belt
pulleys are located. The tail pulley is the end of the belt where
the back roller is located. Coal .is loaded on the tailpiece.
22. On April 11, 1978, Inspector Kowalski issued a withdrawal
order under section 104(d)(l) charging an unwarrantable violation of
the dust safety standard in 30 CFR 75.400. He recorded that float
coal dust deposited on rock-dusted surfaces was permitted to accumulate on the entry and connecting crosscuts of pinnacle Nos. 1 and 2
belt conveyor, beginning about 100 ·feet outby the pinnacle No. 1 belt
conveyor tail roller, and extending about 350 feet inby the permanent
stoppings of the No. 4 entry, a distance of about 70 feet to another
permanent stopping, also beginning at the No. 2 pinnacle belt conveyor head and extending inby to a stopping about 250 feet. Float
coal dust ranged in depth from about one-sixteenth of an inch to
9 inches.
23. The accumulation problem was reported on the belt examiner's
books for five different shifts. The only corrective action taken
was on April 10, when the belt examiner's book indicated that the
area was partly rock dusted. The inspector estimated that the accumulations had been there for at least 1 week.
24. The shift foreman had indicated to the inspector that he
was not pleased with the condition, and had he known of the accumulations, it would have been cleaned up.
25. Reports made in the belt examiner's books were summary
comments and not explicitly detailed.
26. The Itmaon No. 1 Mine is not a particularly gassy mine. In
the 12 years that Mr. Green had been there, there had never been a gas
ignition.

1595

27. There is always a potential ignition hazard around electrical equipment near float coal dust. Float coal dust will burn, and it
will explode. At the time of the inspection, both belts were running.
They have electric motors and there is other electrical equipment in
the area, including belt control lines, power cables to the belt
boxes, and belt motors. These were all covered with float coal dust.
28. Samples of dust taken in the belt conveyor entries were sent
to the laboratory for combustible content analysis. The No. 1 sample,
taken off the floor of the belt conveyor entry pinnacle section,
about 5 feet in the pinnacle No. 1 belt tail, came back 29 percent
incombustible content. The No. 2 sample, from about 10 feet inside
the No. 1 belt, came back 17 percent incombustible. Section 75.403
requires that the inc~mbustible content of the intake entries be maintained at at least 65 percent. The samples indicated that the float
coal dust was alsmost pure coal. It was powdery and dry.
29. In the No. 2 belt entry, air was coursing from the stopping
on the No. 2 tail, so ,in the event of a fire at any place along that
section of the belt, it would tend to move toward the tailpiece.
30.

The condition was abated in about 8 hours.

31. I find that the dust conditions reported in the withdrawal
order were proved by a preponderance of the evidence and that such
conditions were the result of an unwarrantable failure by the operator to comply with the safety standard in 30 CFR 75.400.
DISCUSSION
This case concerns the validity of a citation and a subsequent
order issued to Applicant under section 104(d)(l) of the Act. With
respect to the citation, the inspector found that Applicant had
unwarrantably violated 30 CFR 75.200 and that the violation could
significantly and substantially contribute to the cause and effect
of a coal or other mine safety or health hazard. Subsequently,
within 90 days of the issuance of the citation, the inspector found
that Applicant had unwarrantably violated 30 CFR 75.400 (accumulation
of float coal dust) and, therefore, issued a withdrawal order under
section 104(d)(l) of the Act.
Under section 104(d)(l) of the Act, if an inspector issues a citation finding (1) a violation of a mandatory health or safety standard
that could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard and (2) that the
violation was caused by an unwarrantable failure to comply with such
standard, the operator is subject to a withdrawal order if:

* * * during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such

1596

citation [an inspector] 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 * * *·
With respect to the citation (roof-control violation), I conclude that the Applicant violated a mandatory safety standard and
that the violation was of such a nature as could significantly and
substantially contribute to the cause and effect of a coal mine
safety hazard.
The roof-control plan in effect was formulated in accordance with
30 CFR 75.200, which provides in pertinent part:
Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system
of each coal mine and the means and measures to accomplish
such system. The roof and ribs of all active underground
roadways, travelways, and working places shall be supported
or otherwise controlled adequately to protect persons from
falls of the roof or ribs. A roof control plan and revisions thereof suitable to the roof conditions and mining
system of each coal mine and approved by the Secretary
shall be adopted and set out in printed form on or before
May 29, 1970. The plan shall show the type of support and
spacing approved by the Secretary * * *·
The applicable part of Applicant's approved plan reads: "Plan
shown is minimum support for normal conditions. Additional posts,
crossbars, or cribs shall be installed where needed." In normal
conditions, two parallel rows of posts can be used as minimum
support in pillar splits.
The controlling issue with respect to the validity of the citation depends on whether or not the cracked roof condition in the
No. 1 pillar split area of the Guyan No. 2 panel section was an
abnormal condition. If this condition were "abnormal," the validity
of the citation would then depend on whether the roof control plan
required the use of additional supports, such as crossbars or roof
bolts, rather than the posts added by the foreman.
The federal mine inspector was of the opinion that: (1) the
cracks in the roof indicated an abnormal condition requiring the company to exceed the minimum standards of its roof-control plan, and (2)
that prior to mining, cross-sectional supports or roof bolts should
have been installed. He stated that the posts added by the foreman
were insufficient.
In the inspector's opinion, a normal roof is one that is firm and
unbroken. He stated that cracks in a roof typically indicate an
abnormal condition, but went on to say that when mining a pillar split

1597

cracks are not an unusual occurrence. He believed that under the circumstances present at the Guyan No. 2 panel section, however, the roof
was unpredictable, and could have fallen at any time after the miner
was removed from the face. When the foreman ordered the miner to back
out, material started falling from the cracks, which indicated that
additional support was needed.
Applicant argues that cracks in a roof during retreat mining are
not unusual, and if checked by an approved method, there is nothing
inherently dangerous about them. Because the roof ultimately is
designed to collapse during this method, Applicant contends that the
roof condition indicated in the citation was normal.
Applicant argues that even if the condition were considered
abnormal, the plan was followed because it gave the operator the
option of using additional posts, crossbars, or cribs where needed,
and Applicant chose to use additional posts. Applicant inspected the
roof during the preshift before sending the mining machine into the
face area, and recognized that additional suppqrt was needed. The
foreman chose to set an additional 20-25 timbers rather than use the
other options under the plan.
A decision as to whether or not there was a violation of the
roof-control plan depends on whether the inspector's on-the-site determination should prevail over the judgment of the mine foreman that
additional posts complied with the plan's requirements. I conclude
that MSHA proved by a preponderance of the evidence that abnormal conditions prevailed and the roof was in need of additional support. The
evidence adduced at the hearing leads me to conclude that the failure
to use cross-sectional· s.upport (or roof bolts) under the circumstances
was a violation of the plan. First, the roadway was initially in need
of additional support because it was too wide. Second, the additional
post plan was evidently inadequate because it was limited by a determination to leave room to mine coal, which meant there was no more
room to add posts (after the additional 20-25) and still have room for
the mining machine to operate. The fact that the roof exhibited signs
of instability after the posts were installed indicated that satisfactory support was not provided, and that the option chosen by Applicant
proved ineffective. On the other hand, cross-sectional support, or
roof bolts, would have provided adequate support and still permit room
for mining.
Having found that Applicant violated a mandatory health or safety
standard, I also conclude that the violation could significantly and
substantially contribute to the cause and effect of a coal or other
mine safety or health hazard. A violation may significantly and substantially contribute to the cause of a hazard regardless of whether
or not it creates a risk of serious harm or death. Alabama By-Products
Corporation, 7 IBMA 85, 94 (1977), approved in S. Rpt. No. 95-181,
95th Cong., 1st. Sess. 31 (1977), reprinted in LEGISLATIVE HISTORY OF
THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 619 (1978). On the

1598

other hand, no citation would be warranted if there were no risk of
inJury at all, i.e., where the violation is technical in nature, or
if the risk of Injury were very remote or minimal. Id.
The roof was shale and unpredictable in nature. In the opinion
of the inspector, it was difficult to tell what type of fall might
occur from just looking at the cracks, and whether or not it would
strike the machine operator. The edge or left side of the miner
probably would have been covered. During the abatement of the citation, two cracks were discovered in the roof strata indicating that
the conditions were even more dangerous than they may have originally appeared. The additional cracks were discovered in spite of the
roof test conducted by the foreman during the preshift examination.
A roof fall could have injured or killed a miner or have caused a
mine fire or electrical hazard.
The controlling issue with respect to "unwarrantable failure" as
used in section 104(d) ( 1) is whether the operator failed to abate a
violation which it knew or should have known existed, or failed to
abate a violation due to indifference or lack of reasonable care.
Zeigler Coal Company, 7 IBMA 280-296 (1977) (interpreting section
104(c)(l) of the Federal Coal Mine Health and Safety Act of 1969),
approved irv S. Rpt. No. 85-181, supra at 31-32.
I conclude that the Secretary proved that the roof-control violation was unwarrantable. The. operator knew about the cracked roof condition before mining commenced. Instead of choosing cross-sectional
support, or roof bolts, it chose to add posts, but this approach was
self-limiting because the operator chose to leave room for the mining
machine, so that posts would not directly support the area of the
cracked roof. On the other hand, cross-sectional supports or
roof bolts could have suported the area of the cracked roof while
still allowing room for the mining machine to operate.
The evidence overwhelmingly shows the post-support method chosen
by the operator was inadequate to give necessary support to the
cracked area of the roof. I conclude that a reasonably prudent operator would have used cross-sectional support or roof bolts, and would
not have relied solely upon additional posts while allowing room for
passage of the continuous miner.
CONCLUSIONS OF LAW
1. The undersigned Judge has jurisdiction over the parties and
the subject matter of the above proceeding.

2. Applicant's Itmann No. 1 Mine, at all pertinent times, was
subject to the provisions of the Act.

1599

3. The Secretary proved by a preponderance of the evidence that
the additional 20-25 posts installed by Applicant provided inadequate
support for the roof and that Applicant therefore violated the
approved roof-control plan, and hence 30 CFR 75.200, as charged
in the citation issued on April 6, 1978.
4. The Secretary proved by a preponderance of the evidence that
the violation of the roof-control plan was of such a nature as could
significantly and substantially contribute to the cause and effect of
a coal mine safety hazard.
5. The Secretary proved by a preponderance of the evidence that
the roof-control violation was the result of an unwarrantable failure by the operator to comply with the roof-control plan, as required
by the mandatory safety standards in 30 CFR 75.200.
6. The Secretary proved by a preponderance of the evidence that
the operator violated the dust safety standard in 30 CFR 75.400 as
charged in the withdrawal order issued on April 11, 1978, and that
such violation resulted from an unwarrantable failure of the operator
to comply with such standard.
All proposed findings and conclusions inconsistent with the above
are hereby rejected.
ORDER
WHEREFORE IT IS ORDERED that the citation issued on April 6,
1978, and the order issued on April 11, 1978, are hereby AFFIRMED and
the application for review thereof is DISMISSED.

WILLIAM FAUVER, JUDGE
Distribution:
Michel Nardi, Consolidation Coal Company, Consol Plaza,
Pittsburgh, PA 15241 (Certified Mail)
David L. Baskin, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, Division of Mine Safety and Health,
4015 Wilson Boulevard, Arlington, VA 22203

1600

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

October 12, 1979

CONSOLIDATION COAL COMPANY,
Applicant
v.

Contest of Order

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

Order No. 0810947
March 26, 1979

Docket No. WEVA 79-54-R

Shoemaker Mine

UNITED MINE WORKERS OF AMERICA
(UMWA),
Representative
of Miners
DECISION
Appearances:

Michel Nardi, Esq., Pittsburgh, Pennsylvania, for
Applicant;
James H. Swain, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for
Respondent Secretary of Labor;
Richard L. Trumka, Esq., Washington, D.C., for the
Representative of the Miners, the United Mine Workers
of America.

Before:

Chief Administrative Law Judge Broderick
STATEMENT OF THE CASE

The case arose upon the filing by Applicant of an application
for review of an order (now called a notice of contest of an order in
Commission Rule of Procedure, 29 CFR 2700.20) issued on March 26, 1979,
under section 104(d)(2) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 814(d)(2). Applicant challenged the order on the
grounds that the violation of the mandatory safety standard alleged
in the order did not occur; that there was no unwarrantable failure
to comply with the mandatory safety standard; and that no condition
or practice existed which could significantly and substantially contribute to the cause and effect of a mine safety or health hazard.
Respondents Secretary of Labor and United Mine Workers of America
contended that the order was properly issued.

1601

Pursuant to notice, the case was called for hearing on the
merits in Wheeling, West Virginia, on September 4, 1979. Kenneth R.
Williams, a Federal coal mine inspector, testified for Respondent
Secretary of Labor; Rayburn Fraley, William Barack, Joseph Domenick,
Dale Goudy, and Bruce Armstrong testified for Applicant. No witnesses were called by the Representative of the miners. At the
close of the hearing, the parties waived the filing of written
proposed findings and conclusions.
ISSUES
1. Whether there was on March 26, 1979, an accumulation of coal
dust, including float coal dust deposited on rock-dusted surfaces,
loose coal and other combustible materials in the No. 1 and No. 2
belt entries of the 2 left off 4 north section of the subject mine.
2. If issue No. 1 is answered in the affirmative, whether the
condition or practice was caused by the Applicant's unwarrantable
failure to comply with the mandatory safety standard in question.
3. If issue No. 1 is answered in the affirmative, whether the
condition cited could significantly and substantially contribute to
the cause and effect of a mine safety or health hazard.
FINDINGS OF FACT
1. On March 26, 1979, Applicant was the operator of a coal mine
in West Virginia known as the Shoemaker Mine.
2. The preshift examiner's report book (the "fireboss book")
covering the 3 left, 4 north section of the subject mine reported the
following conditions between March 19, 1979.and March 26, 1979: loose
coal on the No. 2 belt on the third shift, March 19, 1979; loose coal
on the No. 2 belt line and the No. 2 tailpiece on the third shift,
March 22, 1979; (the latter condition [No. 2 tailpiece] was shown as
corrected), loose coal on the No. 2 belt line, the spotter and the
transfer point on the first shift, March 23; the report indicated
that the section was idle during that shift; loose coal on the No. 2
belt line on the second shift, March 23; loose coal was also reported
at the transfer point, the spotter and the tailpiece which were corrected; loose coal on the belt line on the third shift, March 23; the
report stated that it "has been worked on, but belt is still spilling
off on right side;" loose coal on the No. 2 belt line was reported
on the first shift, and again on the second and third shifts on
March 24. The section was reported as idle that day. The same condition was reported on each shift on March 25 (a Sunday) when the
section was idle. Loose coal was reported on the first shift,
March 26 on the No. 2 belt line, "tailpiece to 7+32," partially
corrected; the report for the second shift on March 26 indicated
the loose coal condition on the left side of the No. 2 belt line
was corrected (Tr. 156-21; Applicant's Exh. 3).

1602

3. Federal mine inspector Kenneth R. Williams, a duly authorized
representative of the Secretary of Labor, inspected the subject mine
on March 26, 1979. He reviewed the fireboss book above referred to
before going into the mine. Inspector Williams was accompanied during his inspection by Nick Renzella, company safety escort, and Mike
Veronis, union representative.
4. At approximately 6 or 7 p.m. on March.26, Inspector Williams
arrived at the 3 left off 4 north section and walked the No. 1 and
No. 2 belt lines. At about 8:30 p.m., he issued a 104(d)(2) order of
withdrawal.
VIOLATION
5. On March 26, 1979, there was an accumulation of coal dust and
float coal dust on the floor, the belt, on equipment and power cables
along the No. 1 belt entry and in crosscuts in the 3 left off 4 north
section of the subject mine. The condition was general throughout the
entry for a distance of approximately 950 feet. Coal dust accumulated
under the rollers from 2 to 14 inches in depth. The area generally
was dry but was damp at the tailpiece. Some of the rollers were stuck
at or near the tailpiece. The belt was not running at the time.
DISCUSSION
. The above finding substantially accepts the testimony of Inspector Williams which was disputed by Applicant's witnesses. William
Barack, chief inspector for Applicant, entered the mine shortly after
the order was issued. He testified that there was some float dust on
the belt structures, the hardware, the ribs, the roof planks, the
belt drives, the power junction boxes, and the power lines, but that
there were no "unusual accumulations," and that the condition was not
dangerous. Peter Domenick, supervisor of safety at the subject mine,
did not go to the section until September 28. There is substantial
dispute as to whether the condition was the same on the 28th as it had
been on the 26th. Dale Goudy, section foreman, worked on the first
shift (midnight to 8 a .m_.) on September 26. He stated that the No. 1
belt was "very clean." He saw a small amount of float dust on the
belt structure and the ribs. He did not know whether any float dust
was on the electrical boxes or power drives. Bruce Armstrong, section
foreman on the 8 a.m. to 4 p.m. shift testified that on March 26,
his crew worked the entire shift on the belt line (No. 2). He testified that when he examined the belt on March 23, he did not see
anything wrong with the No. 1 belt line. He did not walk the No.I
belt line on the 26th and does not know its. condition on that day.
Inspector Williams testimony was complete and unequivocal. His
was the only testimony of an eye witness to the conditions he observed
and reported. Neither Nick Renzella, the company safety escort, or
Mike Veronis, the union representative, both of whom accompanied
Inspector Williams,·were called as witnesses. I find Inspector
Williams testimony credible and I accept it.

1603
j

6. On March 26, 1979, there was an accumulation of loose coal
along the right side of the No. 2 belt extending approximately
two-thirds of the length of the belt or 1,000 feet. Beyond that
point, the area had been cleaned and the loose coal was shoveled
onto the belt. The belt was not running at this time.
DISCUSSION
Mr. Barack testified that there was some spillage along the
No. 2 belt but that it was "not excessive." He stated that cleanup
had begun. Dale. Goudy testified that he reported lo.ose coal spillage
for 700 or 800 feet from the No. 2 tailpiece outby toward the dumping
point when he made his.onshift inspection on March 26. He directed
men to shovel it onto the belt. They worked to the end of the shift
and cleaned all but 100 to 150 feet of the area. Bruce Armstrong
testified that during his shift his crew shove~ed approximately
500 feet and corrected the condition which he /had previously noted
in the fireboss book for March 23. However, ne did not examine the
'
entire belt line.
It is clear that a.pplicant had started to clean up the accumulations along the No. 2 belt line. It is also clear that it had not
completed the task and that accumulations of many days duration
remained.

I have accepted Inspector William's testimony as to the condition of the No. 2 belt as I did with respect to the condition of the
No. 1 belt.
UNWARRANTABLE FAILURE
7. The condition found along the No. 2 belt line had been
reported in the preshift and onshift mine examiner's book since
March 19 and was not corrected as of March 26.
8. The condition found along the No. 1 belt line was of such
magnitude that it must hav~ been present for some days.
9. Applicant was aware of the conditions described in Findings
of Fact No. 5 and No. 6. It had ample opportunity to correct these
conditions before March 26, 1979, but failed to do so.
SIGNIFICANT AND SUBSTANTIAL
10. The conditions found to exist in Findings No. 5 and No. 6
were such as could significantly and substantially contribute to the
cause of a mine safety or health hazard.
DISCUSSION
Float coal dust if put in suspension is potentially explosive,
and can propagate an ignition. There were many possible sources

1604

of ignition in.the area. Loose coal and coal dust can, of course,
serve as fuel for a mine fire. The extent of the accumulations
found herein could have contributed to a mine safety or health
hazard. If the belts had been in operation, a dangerous situation
would have been presented.
CONCLUSIONS OF LAW
1. The undersigned Administrative Law Judge has jurisdiction
over the parties and subject matter of this proceeding.
2. The conditions found to exist on March 26, 1979, in Findings
of Fact No. 5 and No. 6 constituted a violation of the safety standard contained in 30 CFR 75.400.
3. The conditions found to exist in Findings of Fact No. 5 and
No. 6 resulted from Applicant's unwarrantable failure to comply with
the safety standard in question.
4. The conditions found to exist in Findings of Fact No. 5 and
No. 6 were such as could significantly and substantially contribute
to the cause and effect of a mine safety or health hazard.
ORDER
Order of Withdrawal No. 0810947 issued March 26, 1979, is
AFFIRMED, and the contest of said order is REJECTED.

J~/4:1.~~d

Chief Administrative Law Judge

Distribution:
By certified mail:
Michel Nardi, Consolidation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241
Barbara Krause Kaufmann, Attorney, Office of the Solicitor, U.S.
Department of Labor, Room 14480, Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
Attorney, United Mine Workers of America, 900 15th Street,
Washington, DC 20005

1605

N.W.,

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

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

Civil Penalty Proceeding
Docket No. HOPE 78-569-P
A/O No. 46-01409-02028 V

v.
Maitland Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Leo J. McGinn, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Karl T. Skrypak, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania for Respondent.

Before:

Judge Forrest E. Stewart

On August 29, 1979, a hearing was held in the above-captioned
proceedings in Charleston, West Virginia. At that time, the Administrative Law Judge approved a settlement negotiated by the parties and
ordered Respondent to pay the agreed-upon sum of $1,500 within 30 days
of the date of the ord~r.

A 104(c)(2) order of withdrawal had been issued on August 29,
1977, at Respondent's Maitland Mine alleging a violation of the
approved roof control plan. The inspector described the condition
or practice as follows:
Loose, unsupported roof and ribs were present along
the mantrip and supply track haulage system at several
locations from the first left belt overcast to a point
about five crosscuts outby the two left supply hole, and
the conditions were or should have been known to management
in that they were obvious."
MSHA's Office of Assessments originally proposed a penalty of
$6,000. As grounds for the reduction in proposed penalty, Counsel for
Petitioner asserted the following:

1606

The Office of Assessments waived the use of the formula
contained.in 30 CFR 100.3 in determining the civil penalty
on the basis that unwarrantable failure had been found and
assessed a penalty in the amount of six thousand dollars.
As a result of prehearing discussions with the MSHA
inspector who issued the Order and discussions with
Mr. Skrypak, the attorney for Consol, an agreement was
reached to settle the case for an amount of fifteen hundred dollars.
We believe the amount of fifteen hundred dollars in
this instance is sufficient to support the purposes of
the Act in preventing violations, accidents and injuries,
and is in accordance with the criteria and the Act itself.
Essentially, the area which we cited is only vaguely
described by the inspector as to gravity. Several locations were mentioned by him. In attempting to elicit definite testimony as to the exact nature of the roof conditions, the inspector had taken no notes and could not give
a more precise and detailed description of the allegations
on which the assessment was made.
I felt we would have problems in presenting a clearcut
description as to the gravity and extent of the conditions
cited. The area cited had not been used as an active haulage or entry for transporting men.
The prime consideration was·the question of unwarrantability~ and upon this Consolidation has given evidence that
the condition was, at the time the Order issued, currently
being rehabilitated and being brought up to the standards
of the roof control plan, that good faith was being shown
at that time, and even more so after the issuance ~f the
Order, abating those conditions.
They were, in fact, expending time and money to remedy
the condition before the Order had been issued. So, with
these factors considered -- also the fact no injuries were
either, in fact, caused or were they probable to be caused
due to the remote area of the condition -- it is unlikely
serious injuries would have resulted -- although ordinarily
a roof c.ondition must be considered as an extremely serious
violation.
We feel the penalty in the amount of fifteen hundred
dollars is sufficient to deter future violations and recommend it be accepted by the Administrative Law Judge.

1607

Counsel for Respondent placed on record the following
dollar amounts and man-hours which were expended by the operator
to correct the situation prior to the issuance of the order:
During the period of approximately six weeks before
this particular Citation or Order was issued and for a
period of some four weeks thereafter, Consolidation Coal
Company spent a total of forty-nine working days in this
area, amounting to eighty-seven man shifts which covered
over two thousand man hours.
During this two thousand man hours, the following
work was performed: Over ninety feet of draw rock was
taken down, the ninety feet was then rebolted with
approximately ninety roof bolts.
Eleven breaks of locust timbers were set. That translates in layman's terms to approximately three hundred
timbers. Thirty crossbars were set, those being steel
crossbars.
The high voltage and trolley wire was rehung. The
approximate cost of the work -- by figuring only the
direct cost of labor and supplies -- is around seventy-five
thousand -Oollars. The direct cost, which cannot be figured
accurately, would probably place the value of this work in
excess of one hundred thousand dollars.
The approval of settlement and the order requiring that the
respondent pay the sum of $1,500 within 30 days of the date of the
hearing are hereby affirmed.

Forrest E. Stewart
Administative Law Judge
Distribution:
Leo McGinn, Esq., Office of the Solicitor U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Karl Skrypak, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburg, PA 15231 (Certified Mail)

1608

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

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

Civil Penalty Proceeding
Docket No. HOPE 78-623-P
A/O No. 46-02877-02012 F
No. 9 - No. 8 Drift Mine

CARBON FUEL COMPANY,
Respondent
DECISION
Appearances:

Leo J. McGinn, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for
Petitioner.

Before:

Judge Stewart

The above-captioned case is a civil penalty proceeding pursuant
to section 110 of the Federal Mine Safety and Health Act of 1977.
A hearing in this matter was held on August 29, 1979, in Charleston,
West Virginia. At that time, settlement of the case was proposed in
the amount of $3,500. MSHA's Office of Assessments had originally
proposed an assessment of $10,000. In support of the motion for
settlement, counsel for Petitioner asserted the following:
Your Honor, this case involves a single violation,
a 104(b) Notice alleging a violation of 75.200 issued
January 11, 1977, for failure to comply with the approved
roof control plan, in that the roof bolting machine operator was not using the temporary supports, roof bolting
in the face area, and an accident occurred; and the bolter
was killed as a result of the accident.
An assessment was made at that time of ten thousand
dollars. Your Honor, when this case was assigned for
hearing during this week, I obtained the file from
Mr. Edward Fitch, an attorney of our office, and was
advised by him -- and this was confirmed by correspondence
in the file -- this actually had been set last year for
prehearing by another judge and had been continued. In
the meantime, settlement negotiations had been carried on.

1609

By letter dated July 30, 1979, a letter from C. Lynch
Christian, III, attorney for Carbon Fuel, to Mr. Edward
Fitch, Esquire, of the Office of the Solicitor, confirmed
a settlement agreement reached between the parties in the
amount of three thousand five hundred dollars.
I examined the material available in the file, discussed the case with Mr. Fitch, and was told by him agreement had been reached and that a motion, for some reason
or another, had not been filed by the parties asking that
the amount be approved and the case be dismissed.
Basically, the reasons are contained in a letter
from Mr. Christian to Mr. Fitch which explains the ~lle
'gations of negligence on the part of the operator.
Evidently, the evidence accepted by Mr. Fitch is that
temporary supports were available on the continuous mining
machine and should have been used at that time.
The victim had attended the training classes in roof
and rib control and had received a full explanation of
the requirements of the plan only two months prior to
the accident, including the requirement temporary supports
be set while bolting.
The victim had been caught, as explained in the
letter, "--by mine management without or with improperly
set temporary supports on three occasions since 1974. On
each of these occasions, the roof bolter had been shut
down, the roof control procedures carefully explained and
a verbal or written warning issued to Mr. Morris," the
victim.
In view of these circumstances, Mr. Fitch accepted
the contention that management could not be held to be
grossly negligent in the unfortunate fatal accident which
occurred here.
Although the violation is, of course, serious with
the death of the man, it was considered a penalty in the
amount of thirty-five hundred dollars was sufficient and
would be acceptable under the circumstances of the evidence available for proof as to negligency.
Having concurred with Mr. Fitch and examined the
documents in the file, I find no reason for the Office
of the Solicitor to back out of the agreement which had
been reached between the two attorneys at an earlier time.

1610

So, I move the penalty in the amount of thirty-five
hundred dollars be accepted and the proceeding be
dismissed upon payment.
Counsel for Petitioner also introduced into evidence two letters
from counsel for Respondent to counsel for Petitioner. The first of
these was a letter of agreement, dated July 30, 1979. The second,
dated May 3, 1979, set out Respondent's position with respect to the
issue of negligence.
At the conciusion of the hearing, the settlement negotiated by
the parties was approved by the Administrative Law Judge and Respondent was ordered to pay the agreed-upon sum of $3,500. This approval
of settlement is affirmed here.
ORDER
It is ORDERED that the approval of settlement negotiated by the
parties in the above-captioned proceeding is hereby AFFIRMED.
It is further ORDERED that Respondent pay the agreed-upon sum
of $3,500 within 30 days of the date of this decision.

Forrest E. Stewart
Administrative Law Judge

Distribution:
Leo McGinn, Esq., Office of the Solicitor, MSHA, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
C. Lynch Christian III, Esq., Jackson, Kelly, Holt & O'Farrell,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)

1611

FEDERAL MINE SAFETY AND HEALTH REVIEW COIY!MISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON. VIRG !NIA 22203

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

Civil Penalty Proceeding
Docket No. DENV 79-1-P
A.O. No. 42-0081-02015
Co-op Mine

CO-OP MINING COMPANY~
Respondent
DECISION AND ORDER APPROVING SETTLEMENT
This proceeding concerns a proposal for assessment of civil penalty filed by the petitioner against the respondent on October 4, 1978,
pursuant to section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 820(a), charging the respondent with one alleged
violation of the provisions of 30 CFR 70.250(b), and seeking a civil
penalty assessment in the amount of $190 for the alleged violation.
By stipulation and joint motion filed October 9, 1979, pursuant
to Commission Rule 29 CFR 2700.30, the parties propose to settle this
case without a formal hearing by the petitioner amending the proposed
penalty to reflect a penalty of $25 rather than the $190 which was
initially proposed, and respondent agreeing to withdraw its contest
and to pay the $25 proposed penalty.
In support of the proposed settlement, the parties have taken
into account, and have submitted information concerning the six statutory criteria set forth in section llO(a) of the Act, including the
following:
History of previous violations - Respondent has had a
total of 110 violations from July 27, 1975 to July 26, 1977,
only one of which was a violation of 30 C.F.R. 250(b).
Size - Respondent operates a coal mine which mines
between 30,000 and 50,000 tons of coal each year.
Ability to continue in business - Payment of the proposed penalty will not impair respondent's ability to continue in business.

1612

Good faith, negligence and gravity - Respondent is
required by standard 30 C.F.R. 70.250(b) to take respirable
dust samples from the mine atmosphere of miners at least
once every 120 days. MSHA received information, allegedly
from Respondent, that Respondent employed a miner with
Social Security No. 528-96-5108. No respirable dust
sample was submitted for an employee with that Social
Security Number within the prescribed time, and an order
for violation was ultimately issued. Respondent did in
fact employ a miner with Social Security No. 528-96-5109,
however, Respondent's personnel records show that no~~
employee with the Social Security Number 528-96-5108 has
ever been employed by Respondent, and Respondent--.-g-records
show that samples for an employee with Social Security no.
528-96-5109 were submitted as required. Any error appears
to have been clearly clerical in nature and MSHA does
possess a sample for employee 528-96-5109 during the time
in question.
DISCUSSION
After careful review and consideration of the argument in support
of the proposed settlement, and taking into account those factors
required to be considered by section llO(i) of the Act, I conclude
and find that the proposed settlement should be approved. It would
appear that the alleged citation in question resulted from a clerical
error and does not in my view present a serious violation. Further,
respondent is a small mine operator and has no significant prior
history of violations.
ORDER
The settlement is approved, and the respondent is ORDERED to pay
a civil penalty in the amount of $25 within 30 days of the date of
this decision and order in satisfaction of Citation No. 7-0770,
July 26, 1977, 30 CFR 70.250(b). Upon receipt of payment, this case
should'be dismissed.
/?./

:) / / / . - -

-~
4~
?.~~
Ko"ltfas
.
Administrative Law Judge

Distribution:
James Abrams, Esq., U.S. Department of Labor, Office of the
Solicitor, 15019 Federal Office Building, Denver, CO 80202
(Certified Mail)
Carl E. Kingston, Esq., 53 West Angelo Avenue, Salt Lake City,
UT 84115 (Certified Mail)

1613

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

RONALD E. DUNLAP,

Application for Review
of Discharge

Applicant

v.
Docket No. BARB 78-66
CHAROLAIS COAL CORPORATION,
Respondent

No. 1 Mine

DECISION
Appearances:

Ronald E. Dunlap, White Plains, Kentucky, prose.;
Joe A. Evans III, Esquire, Madisonville, Kentucky,
for the respondent.

Before:

Judge Koutras
Statement of the Case

On December 5, 1977, applicant Ronald E. Dunlap filed a discrimination complaint with the Office of Hearings and Appeals, U.S. Department of Interior, Arlington, Virginia, pursuant to section llO(b) of
the Federal Coal Mine Health and Safety Act of 1969, asserting that he
was discharged by the respondent on November 14, 1977, and that his
discharge was in violation of section llO(b) of the Act. The complaint states as follows:
On November 14th, I was discharged from my job as a
Euclid driver for Charolaois Coal Corp. For sometime, I
had been complaining about the brakes. We were moving the
Euclids on November 4, from one mine to the other, when
the first Euclid stopped to let an oncoming car pass. The
brakes failed on the Euclid that I was driving, so I had
to run the Euclid off the road to keep from hitting the
car, and as a result I hit the back of the other Euclid.
I was sent home after the accident. The Euclid was down
for seven days to repair the brakes. I reported to work
everyday until November 14th, when they informed me I was
·fired due to the accident. I was discharged by the company in violation of section llO(B) of the Federal Coal
Mine Health and Safety Act.

1614

By letter .dated January 17, 1978, from former Chief Administrative Law Judge Luoma, Mr. Dunlap was advised that his co.mplaint had
been docketed but that it appeared to be deficient in that there was
no indication that a copy had been served on the respondent. He was
advised to serve a copy on the respondent and to advise Judge Luoma's
office that service was made on the respondent.
By letter dated February 22, 1978, Mr. Dunlap advised that a
copy of his complaint was served on the respondent by MESA Special
Investigator Jesse F. Rideout on December 28, 1977.
On March 27, 1979, Commission Chief Administrative Law Judge
Broderick issued an order to the respondent to show cause why it
should not be held in default and the matter summarily disposed of
because of respon4ent's failure to file an answer.
On April 4, 1979, respondent filed a response to Judge Broderick's
show-cause order, and on April 25, 1979, I issued an order indicating
that respondent satisfactorily answered the show-cause order and should
not be held in default. By notice of hearing issued May 9, 1979, the
parties were advised that a hearing would be held in Evansville,
Indiana, on August 21, 1979.
Issue Presented
The issue presented in this proceeding is whether the discharge
of Mr. Dunlap from his truck driver's position was in fact prompted
by his reporting of safety infractions to the Mining Enforcement and
Safety Administration.
Applicable Statutory Provisions
1.
The Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. § 801 et seq.
2.

Section llO(b) of the Act provides in pertinent part that:

No person shall discharge or in any other way discriminate against or cause to be discriminated against any miner
or any authorized representative of miners by reason of the
fact that such miner or representative (A) has notified the
Secretary or his authorized representative of any alleged
violation or danger, (B) has filed, instituted, or caused to
be filed or instituted any proceeding under this Act, or (C)
has testified or is about to testify in any proceeding
resulting from the administration or enforcement of the
provisions of this Act.

1615

Discussion
Applicant's Testimony
Ronald E. Dunlap testified that on November 4, 1977, while
employed by the respondent as a Euclid truck driver, and while
driving a truck which he believed had bad brakes, he ran the truck
off the road in order to avoid hitting another car which had stopped
on the road. He had previously complained about the bad brakes some
2 months prior to this incident. After the incident, mine foreman
Tom Gamble sent him home, and he was subsequently fired by Mr. Bowles,
the mine owner, and Mr. Bowles stated he fired him because he had
received complaints about the manner in which the trucks were being
operated on the road (Tr. 8-11).
Mr. Dunlap stated that he still does not know the reason why he
was discharged by Mr. Bowles. After he was fired, he tried to obtain
other employment but was unable to, and he believes it was because he
"went to the Federal people over it" (Tr. 12). He called someone at
MESA on the phone and complained about the truck brakes and he also
sought help in filing his discrimination complaint. He subsequently
went to work for Island Creek Coal Company in Madisonville on
September 18, 1978, and is still employed there. Prior to that time,
he was unemployed and was paid no unemployment benefits because of his
discharge (Tr. 14).
On cross-examination, Mr. Dunlap confirmed that he was discharged
on November 14, 1977, and that on November 26, 1977, he executed an
affidavit alleging that he was fired because of reports of safety violations (Exh. R-1). He stated that sometime in mid-October of 1977
he called an unidentified man at the MESA Madisonville office to complain about the brakes on the truck in question. He did not file any
written report, and to his knowledge, no one came to the mine to
inspect or check on the condition which he reported. He continued to
drive the truck after he complained about it and he was not discharged
and continued to work with the respondent until his discharge on
November 14 (Tr. 15-16).

Mr. Dunlap identified the manufacturer's specifications for a
Euclid R-50 truck, the type of vehicle he was driving on the day of
the accident (Exh. R-2). He described the truck braking system, and
his duties entailed hauling spoil from one of the mine pits to a dumping area and this was done in tandem with another truck driver usually
over an 8-hour daily shift. He confirmed that at the end of a shift
he was required to fill out a slip stating the current condition of
the truck, and he customarily filled it out by signing it and turning
in the hours he worked (Exh. R-3, Tr. 17-23). He denied that he was
ever informed that he was to report the condition of his truck on the
report (Tr. 24). However, he stated he was not sure whether he has
filled out any such reports indicating problems with his truck, but
did identify one he turned in on October 12, 1977 (Exh. R-4).

1616

Mr. Dunlap stated that he was instructed to advise the mechanic
about any problems with his truck, and he also turned in reports to
his foreman (Tr. 26). He admitted that at no time did he ever fill
out a report stating there were problems with his truck and this is
because he always reported it orally (Tr. 27). He denied that anyone has ever advised him to slow down while driving around the pit
(Tr. 29).
Mr. Dunlap testified with respect to the accident with his truck
and he indicated that he had to run his truck into a ditch to avoid
the stopped car, and that he could not stop in time (Tr. 30-37). He·
confirmed that he wrecked his brother-in-law's truck 2 days after the
accident in question and believed bad brakes caused that accident
also (Tr. 39). He also admitted stating to Mr. Gamble that he would
not blame Mr. Bowles for firing him for wrecking the Euclid truck (Tr.
40).
In response to questions from the bench, Mr. Dunlap stated that
on October 15, 1977, he called someone at MESA qnd advised him that
he damaged the truck transmission because he could not stop the truck
and had to put it in gear to keep it from going over a bank. He could
not recall who he talked to and no one from MESA came in response to
his call. He never saw any MESA or state inspectors at the mine and
he has never complained to any state inspectors about truck brake
conditions. He also indicated that he never told Mr. Bowles about
his call to MESA, and he told no one at the mine about it (Tr. 40-44).
Respondent's Testimony
Donald E. Bowles, mine owner, testified that he is familiar with
the Euclid truck operated by Mr. Dunlap on the day of the accident,
and he discussed the truck braking system. Mr. Bowles stated he drove
the truck after the accident to get it out of the road. The truck
windshield was knocked out and one door would not close. The truck
was purchased in January 1977, and a new one costs $280,000 (Tr. 6265). Mr. Bowles stated he was unaware of any complaints made by
Mr. Dunlap to MESA, and he first learned about the matter when MESA
representative Rideout interviewed him after Mr. Dunlap filed his
complaint (Tr. 66).
Mr. Bowles testified he has observed Mr. Dunlap's driving habits
and asked pit foreman Gamble on two occasions to slow him down. Prior
to the accident, he was not aware of any serious brake difficulties
with the Euclid truck. He denied that Mr. Dunlap was fired for complaining about safety violations (Tr. 66-67).
On cross-examination, Mr. Bowles testified that the truck in question was still under warranty at the time of the accident, and that in
addition to Mr. Dunlap, it was also driven by Mr. Gamble. He confirmed that there was a brake problem with the truck, but indicated

1617

that it was caused by failure of the driver to use the retarder to
slow it down and "riding the brakes" while going downhill (Tr. 70).
Mr. Bowles stated that he told Mr. Dunlap that a local county
judge had complained about his driving too fast and reckless with
the Euclid truck and that after the accident when he rode back with
Mr. Dunlap to his car, Mr. Dunlap asked him if he were fired, and
Mr. Bowles answered 11 1 don't know" and told him he would have to talk
to Mr. Gamble and Mr. Durall first and that he would let him know.
On or about November 14, he told Mr. Dunlap that he was fired because
of the complaint~ of his fast driving and that he could not permit
anyone who was unsafe to operate his equipment (Tr. 71-72).
Mr. Bowles described the accident and indicated that one truck
ahead of Mr. Dunlap had stopped to allow a car to pass by and
Mr. Dunlap was trailing behind the lead Euclid truck which had
stopped. Mr. Dunlap hit the truck which had stopped in the backend
and ran off the ditch beside it (Tr. 73). Mr. Bowles stated that
Mr. Dunlap's discharge was oral and he paid him his final check (Tr.
75).
In response to bench questions, Mr. Bowles testified that MESA
does ~nspect his mine, but he could not recall the Euclid trucks being
inspected in October or November 1977, nor could he recall any citations being issued against the trucks for deficient brakes (Tr. 76).
He first met Mr. Rideout when he came to interview him concerning
Mr. Dunlap's complaint. Mr. Rideout asked him to reinstate Mr. Dunlap
and he told him he could not because he was not a safe workman (Tr.
77). He denied firing Mr. Dunlap for making any safety complaints
and knows of no complaints that he may have filed with MESA, and
Mr. Rideout mentioned none (Tr. 79).
Thomas E. Gamble, pit foreman, testified that Mr. Dunlap was a
good worker but a "little bit fast" and sometimes a "little bit reckless" with his truck. He was aware of no complaints made to MESA by
Mr. Dunlap and when he left t~e job he had received no complaints
about bad truck brakes. He would not have permitted Mr. Dunlap to
operate the truck if it were in fact in an unsafe condition. After
the accident, Mr. Dunlap stated that if Mr. Bowles fired him 11 1
guess I've got it coming" (Tr. 82-85).
In response to bench questions, Mr. Gamble stated that Mr. Dunlap
worked directly for him and they were working together when the accident occurred- (Tr. 86). Mr. Bowles consulted him as to whether
Mr. Dunlap should be fired and he voted to fire him because of his
reckless driving habits. Mr. Dunlap never indicated to him that he
ever complained to MESA about any defective brakes on the trucks (Tr.
87). He is unware of any citations issued against the trucks for
defective brakes, and aside from his driving habits, Mr. Dunlap was a
good worker (Tr. 89).

1618

John S. Durall, pit foreman, testified he was aware of
Mr. Dunlap's driving habits and that they were "average". On the day
of the accident, he was driving the lead truck acting as a flag truck
to slow down other vehicles coming from the opposite direction. The
truck operator is responsible for filling out the slip tickets at the
end of each shift. He is not aware of any MESA citations issued during October and November against the Euclid trucks (Tr. 92). He was
not aware that Mr. Dunlap had registered any complaints with MESA.
Findings and Conclusions
On the facts and evidence adduced in this proceeding, I cannot
conclude that Mr. Dunlap's discharge from his employment with the
respondent was in any way connected with, or the result of, any discrimination resulting from any complaints which he may have made to
MESA in connection with the brakes on the Euclid truck. As a matter
of fact, there is no evidence to substantiate the fact that Mr. Dunlap
ever complained to MESA about any defective brakes on the truck in
question, and there is no evidence to substantiate the allegation
that respondent was aware of such complaints and retaliated against
Mr. Dunlap by discharging him. MESA's involvement in the case came
after Mr. Dunlap filed his complaint, and from the record it would
appear that this involvement was limited to a March 1978 interview by
MESA inspector Rideout with the owner of the mine. Respondent's evidence and testimony establishes that Mr. Dunlap's discharge was
prompted by the accident that he was involved in concerning the Euclid
trucks owned by the respondent, and the fact that respondent considered
Mr. Dunlap to be an unsafe truck driver •
.During the course of the hearing, and in response to my question
as to whether Mr. Dunlap had ever cons1dered retaining counsel to
represent him, he indicated that he had retained an attorney from
Madisonville, Kentucky, who was aware of his complaint, but it was
his understanding that he did not require an attorney. Out of consideration of the fact that Mr. Dunlap appeared pro se at the hearing, the record was left open for a period of 30 dayS-to afford
Mr. Dunlap an opportunity to contact his attorney further for the
purpose of advising him as to the posture of his case and to afford
the attorney an opportunity to file any further arguments in support
of his claim (Tr. 93-96). No further information in this regard has
been forthcoming either from Mr. Dunlap or his alleged attorney.
Under the circumstances, I am of the view that Mr. Dunlap has had a
full and fair opportunity to present his claim and he admitted as
much at the hearing (Tr. 94-95). However, as indicated above,
Mr. Dunlap has presented nothing to support his claim that his discharge was prompted by any protected activities afforded him under
the 1969 Act.

1619

ORDER
In view of the foregoing findings and conclusions, applicant is
not entitled to any relief under section llO(b) of the Act, and his
application for revliew is denied and this case is dismissed.

!!£

4~----·

~~outr~s

Administrative Law Judge

Distribution:
Ronald E. Dunlap, P.O. Box 153, White Plains, KY 42464 (Certified
Mail)
Joe A. Evans III, Esq., Moore, Morrow & Frymire, P.O. Box 695,
Madisonville, KY 42431 (Certified Mail)

1620

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

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

Civil Penalty Proceedings
Docket No. DENV 79-219-PM
A.C. No. 04-00035-05002
Docket No. DENV 79-241-PM
A.C. No. 04-00035-05001

CALICO ROCK MiuLING,
INCORPORATED, }j
Respondent

Calico Quarries & Mill

DECISION
Appearances:

Donald F. Rector, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Howard M. Peterson, President, Calico Rock Milling,
Incorporated, Barstow, California, for Respondent.

Before:

Administrative Law Judge Michels

The above-captioned civil penalty proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a). On January 18, 1979, the Mine Safety and
Health Administration (MSHA) filed a petition for the assessment of
civil penalties, docketed in DENV 79-219-PM, alleging that Respondent
committed violations of 30 CFR 56.9-87, 56.9-7, 50.20, sections 109(a)
and 103(a) of the Act, and two separate violations of 56.14-1. Thereafter, orr January .26, 1979, MSHA filed a second petition, docketed in
DENV 79-241-PM, alleging that Respondent committed two violations of
30 CFR 56.14-6. On March 30, 1979, Respondent filed answers contesting the violations in both dockets. A hearing was held on August 7,
1979, in San Bernardino, California, at which Petitioner was represented by counsel and Respondent was represented by its president,

1-_/

At the beginning of the hearing, Respondent moved to amend the
in this case from Secretary of Labor, Mine Safety and Health
Administration (MSHA) v. Calico Rock Company, to the above. Petitioner did not object to this change and the caption has been amended
accordingly (Tr. 15).

~aption

1621

Mr. Howard M. Peterson. The two dockets were consolidated for the
hearing and for this decision (Tr. 2). 2/ At the start of the hearing, the parties stipulated (1) that Re~pondent does not have a prior
history of violations, (2) that Respondent is a small company, and,
(3) the imposition of these penalties would not impair the operator's
ability to continue in business (Tr. 4-5). Thereafter, the following
action was taken:
Docket No. DENV 79-219-PM
Citation No. 375049, July 18, 1978
Evidence was first received regarding Citation No. 375049, which
alleges a violation of 30 CFR 56.9-87. The condition or practice cited
by the inspector is as follows: "An automatic warning device which
would give an audible alarm when the equipment is put in reverse was
not provided on the Michigan 125 Front-end loader." The regulation,
30 CFR 56.9-87, provides that:
Heavy duty mobile equipment shall be provided with
audible warning devices. When tLe 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 i t is safe to back up.
On the basis of the evidence presented, and in light of the statutory criteria, a decision was made from the bench finding a violation
of the standard and assessing a penalty of $40. This decision from
pages 76-78 of the transcript, with some necessary corrections, is set
forth below:
Now to get onto the citation. This citation is that an
automatic warning device, which would give an audible aldrm
when the equipment is put in reverse, was not provided on
the Michigan 125 front-end loader. This is cited as a violation of 30 CFR 56.9-87, which does require that heavy duty
mobile equipment be provided with audible warning devices.
The evidence indicates that this is the kind of equipment
which should be so provided. It further indicates, and I do
not believe that Mr. Peterson has disputed, that it was not
provided. There is some question apparently as to whether
this [equipment] was fully in operation, because the indication is that it was being used * * * in the process of doing
a repair to test it out.
]:_/ The citations were heard in numerical order which meant that the
two citations in Docket No. DENV 79-241-PM were heard in the middle
of the citations heard in Docket No. DENV 79-219-PM.

1622

Well, I would say this. That as far as the need for
such a device is concerned, it is, of course, to warn
people in back. It is hard for me to draw a distinction
between operating generally or operating just in the context of the repair. So I fail to see that this would be
much of a mitigating circumstance in this instance.
The net result is that I would find that there has been
a violation as alleged. * * * We have already considered
three of the criteria. As far as the abatement, I just
don't think there is enough evidence for me to determine
that it was not abated in good faith, so I will just simply
let that finding go as though there was an abatement within
the time set by the inspector.
There are two other elements or criteria to consider.
to gravity, the testimony was that people, that other
miners were in the area and in back of it. In my mind,
there is no question about the seriousness of not having
these devices. It is all too easy for somebody to get
injured when they do not hear the machine being backed up.
So I would have to naturally find that it is serious.
As

There is also the question of the negligence. Based
on the evidence I heard, I think there is no question that
Mr. Peterson and his company knew that these were required
and apparently also knew that it was not on this machine,
although it should have been. There is one slight mitigating factor, that maybe it was not appreciated that this
should have been on there in this particular situation,
where it. was being used in connection with other repairs
to test out the machine.
As I said, I can't see any distinction, so I wouldn't
make much of a point of that. The Government has asked
for $56 here, which is, of course, nominal. But taking
into account this slight mitigating factor, I would reduce
that somewhat to $40. I will take $16 off.
So, accordingly, my finding would be for an assessment
of $40 for this citation.
The above bench decision and assessment are hereby AFFIRMED.
Citation Nos. 375050 and 375051, July 18, 1978
Following the above decision, Petitioner and Respondent introduced evidence in a consolidated fashion on Citation Nos. 375050 and
375051 which both allege violations of 30 CFR 56.14-1. The condition
or practice cited in Citation No. 375050 states: "The V-belts on the

1623

drive motor o~ the secondary crusher was not guarded to keep employees
from coming into contact with the pinch points." On Citation No.
375051, the inspector, as to the practice stated: "The balance wheel
on the secondary crusher was not guarded to keep the employees from
coming in contact with it." The regulation requires that: "Gears;
sprockets; chains; drive, head, tail, and takeup pulleys; flywheels;
couplings; shafts; sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and which may cause
injury to persons, shall be guarded."
The following bench decision found at pages 130-137 of the transcript, with some necessary corrections, was issued at the hearing on
the merits of these two violations:
To begin with, I must find whether or not there was a
violation, you see. In this case, we are dealing with two
different citations, 375050 and 375051, both charging a violation of 30 CFR 56.14-1. This is under 30-CFR. The evidence shows that the citations were issued against a piece
of machinery which on either end had a V-belt and a balance
wheel which were not covered.
The charge was, of course, that they were not guarded
and 56.14-1 requires that movj_ng machine parts which may
cause injury shall be guarded. So the evidence that has
been received has turned on, in part at least, a question
of whether or not there was a guarding. Now, I think there
is one disputed area and that is whether or not there was a
chain with a sign as shown in one of the pictures.
The inspector testified that he did not see any such
chain or sign, and I think that -- or I will accept his
testimony on that, because Mr. Cowley also stated that on
the date of the abatement that there was a screen there;
that there was no chain or sign. * * *
As I observed, it is my understanding that this
machinery was previously guarded either completely or with
separate guards. I don't know which. And that these were
,removed. They were removed apparently because the State
.inspector had believed that if there was no access, then
that would be adequate.
Now, as it turns out, however, there was access and
it is admitted that there was a ladder there on that day
so that miners could have gone up there. I believe it is
c_lear that they did go up there for maintenance and oiling,
but it is not clear, of course, in fact there is no evidence, that anybody was ever up there while the machinery
was moving.

1624

Well, I am getting a little bit ahead of myself. The
question is whether or not that was guarded. Now, the question has been raised, and properly so, as to whether or not
the regulation that we have is adequate and I think it is.
At least in relation to this particular piece of machinery,
a guard simply means -- it seems unquestionably -- a cover
that would keep people out, so that they would not get
pulled into it or their clothing pulled into it. If it is
inaccessible, I would go along with the proposition that
you wouldn't necessarily have to have a guard. If it is
way out of reach of anybody. But this was not out of reach.
* * * [I)t could be reached via the ladder and right into
the machine. Of course, the inspector did not observe any
person up there, but I believe that it is clear that people
do go there, and that was the reason for the ladder, to
allow access so that they could get up for maintenance.
That is my understanding.
Now, I just would have no alternative really except to
find that this was unguarded as alleged, and I do so find.
In other words, there is a violation as charged in both of
these citations of 30 CFR 56.14-1. * * *
So that brings us to the point of the assessment. The
findings have already been made on all of the criteria,
except abatement, seriousness and negligence. I think
counsel, Mr. Rector, has made a big point on abatement
because of Mr. Peterson's statement that he wasn't going to
do anything further or guard this. I really didn't understand i t that way. What I understood you [Mr. Peter_son]
were saying, and I so interpret it, is that you believed
what you had there was adequate in all the circumstances.
So I don't add, I would not add a further penalty or
increase the penalties for that reason. * * * Abatement did
not take place within the time permitted, but it did take
place eventually to the satisfaction of Inspector Cowley.
Now that brings up seriousness or gravity. My finding
would be that it is a serious violation. I think that open
machinery which is not guarded is very dangerous. [The cited
con.dition] is mitigated here a little bit by that fact that
nobody was seen there, and there is no evidence at all that
anybody was ever there when the machinery was moving. * * *
Now, as far as negligence is concerned, I find ordinary
negligence, because I believe that it should be known that
these should be guarded. I mean, either an operator knows
or should know about that. I think that it is a mitigating

1625

factor that the State inspector did give his advice or permission to remove those guards under certain circumstances.
So it is not, as I see it, the gross negligence that has
been suggested. But even with all of those factors in mind,
I don't think I can reduce these fines. So therefore, I
will assess the penalties that have been assessed by MSHA
in their Assessment Office, namely, that is, for each of
these violations the sum of $56.
(Tr. 130-137).
I hereby AFFIRM the above bench decision.
Docket No. DENV 79-241-PM
Citation Nos. 375052 and 375053, July 18, 1978
Thereafter, the parties presented evidence on Citation Nos.
375052 and 375053, which are the only two citations docketed in
DENV 79-241-PM. Both charge Respondent with separate violations
of 30 CFR 56.14-6. The condition or practice cited in Citation No.
375052 states: "The guard for the V-belts of the drive mbtor on the
No. 2 Shaker Screen was not in place while belt was running to keep
employees from coming into contact with the pinch points." The wording of Citation No. 375053 is the same except that it refers to the
NQ. 1 Shaker Screen. 30 CFR 56.14-6 provides: "Except when testing the machinery, guards shall be securely in place while machinery
is being operated."
After considering the evidence, a decision was issued from the
bench. This decision found in the transcript at pages 153 and 154,
with some corrections, is set forth below:
These citations are 375052 and 375053. They both
involve charges of 56.14-6, alleging that the guards on
the particular pieces of machinery involved were not in
place while the machines were running. This particular
regulation, I will read it in full, states: "Except when
testing the machinery, guards shall be securely in place
while the machinery is being operated."
Now, it is clear from the testimony that guards were
not on the machinery while it was being operated. I suppose then the issue is whether the conditions come within
the exception, that is, except when testing the machinery.
Mr. Peterson has testified to the effect that they were in
a testing posture. The one indication that this might not
have been true was mentioned by the inspector, and that is
that one [guard] seemed to be covered with dust or dirt or
rock, indicating it had been there a long time, although

1626

Mr. Peterson has explained that. [He testified that within
an hour 1 s running, dust could build up to an inch or an inch
and a half (Tr. 152-153).
There was no rebuttal of that [the claim that tests
were taking place]. I have no reason whatsoever not to
believe Mr. Peterson on his explanation. Therefore, my
understanding would be that it comes within the exception.
This is no criticism of the inspector. He called it as he
saw it when he went there. Unfortunately, he didn't find
out, I guess, that it was in a testing posture.
That being the case, I would dismiss then as to those
two citations. Accordingly the petitions [are vacated] and
the whole docket, DENV 79-241-PM, is dismissed.
(Tr. 153-154).
I hereby AFFIRM the above decision vacating Citation Nos. 375052
and 375053 and dismissing DENV 79-241-PM.
Docket No. DENV 79-219-PM
Citation No. 375054, July 18, 1978
Next, evidence was introduced on Citation No. 375054 which charges
a violation of 30 CFR 56.9-7. After the conclusion of the parties'
presentation of evidence, the following decision found in transcript
pages 171-174, with some corrections, was rendered from the bench:
I will therefore make my decfsion. This is Citation
375045. The citation states that the conveyor side of the
walkway on the hopper/conveyor was not equipped with
emergency stop devices or a cord along the full length of
the conveyor belt. The standard, in this instance, states:
"Unguarded conveyors with walkways shall be equipped with
emergency stop devices or cords along their full length."
Well, the evidence here on a number of points seems
undisputed, that is, that there was a walkway along a conveyor that was in operation; furthermore, that there was
no emergency stop device on the walkway. I don't think
there is any dispute about that.
Mr. Peterson has mentioned several points in his
defense. The first one being, I believe, the contention
that it was in fact guarded, so that it was not unguarded
asserting and testifying that there was a chain.
Contrary-wise, if my recollection of the testimony is
correct, I think Mr. Goodspeed did say that there was no

1627

guard and it was accessible. So I have a direct conflict
in the testimony and in the evidence.
Here, again, of course, we have some kind of problem
or controversy as to what we would mean by guarded. Would,
for example, a chain be adequate if it was there or if it
had been there?
Well, I have to make a decision on it, and I don't
know perhaps enough about this whole procedure or arrangement to make a decision which I think is necessarily going
to be a precedent for other cases, but I am thinking just
in terms of this situation. I would find for this citation
that the mere chain would not be enough. I agree that a
chain can be too easily taken down. It is usually just put
up with some snap, and if somebody wants to use it they go
under it or use it in some way. * * * Therefore, that
guard has to be a secure kind of guard that would probably
have to be some kind of a link fence or whatever the barrier
would be. I say, I readily admit, I have not researched this
area, and I don't want to be making a kind of a ruling that
would be necessarily a broad precedent here. But I think,
as I understand this situation, it would not be guarded
[with only a chain].
So then the next point -- well it was not equipped with
the emergency stop devices. * * * If [the conveyor] doesn't
have this cord, it violates this standard. Now, that may
seem harsh and it may seem strict, but I believe that these
regulations were written with the thought that if these are
enforced, it will prevent those accidents from happening
which shouldn't occur. Men probably shouldn't, maybe very
seldom go on it, but just as surely as you don't follow the
correct procedures, we will find miners doing that, and we
will find injuries. Sd I would have to sustain the proof as
alleged, and I find then a violation as charged of 30 CFR

56.7-9.
So far as the criteria specifically applicable to the
abatement, the evidence is that it was not abated within
the time set, so I would have to take that into account in
assessing the penalty. As far as gravity is concerned in
this instance, I believe it is serious, although it is
mitigated to some extent by the testimony that it [the
walkway] was rarely used.
Negligence: It seems to me that this was a regulation
and a requirement which the company knew or should have
known. So I will find ordinary negligence.

1628

I will assess the penalty which has been requested by
MSHA, which is $48.
(Tr. 171-174).
The above decision and assessment are hereby AFFIRMED.
Citation No. 375055, July 18, 1978
Following this decision, the parties presented evidence on Citation No. 375055 which states: "Records pertaining to reporting of
accidents, injury, illnesses, and employment are not being kept at
the mine site office as required in the Mine Safety and Health Act
of 1977." A violation of 30 CFR 50.20 was charged in the petition
but not on the citation issued to the Respondent. This standard
reads in pertinent part: "Each operator shall maintain at the mine
office a supply of MSHA Mine Accident Injury and Illness Report
Form 7000-1."
After considering the parties' evidence, the following bench
decision was issued:
I will proceed to decide on this qitation. My understanding of the testimony is that there were no records [at
the site], which namely are the completed records, and that
this was what the charge entailed. However, as I understand
it, and as we have discussed it formerly, the matter has
become confused because of the charge in the petition [was]
that it was a violation of 30 CFR 50.20, which raises a
different issue entirely. There is no testimony on that
issue and accordingly I have no recourse except to vacate
and dismiss as to this citation.
(Tr. 193-194).
The matter was dismissed without prejudice (Tr. 212).
The above decision vacating Citation No. 375055 and dismissing
the petition as to it without prejudice is hereby AFFIRMED.
Citation Nos. 375061 and 375067, July 18, 1978
Following this decision, Petitioner and Respondent introduced
evidence on Citation No. 375061, which alleges a violation of section 109(a) of the Act stating that: "Citations issued during the
inspection made July 18, 1978, had not been posted on the mine
bulletin board." The cited section of the Act requires that:
At each coal or other mine there shall be maintained
an office with a conspicuous sign designating it as the

1629

office of such mine. There $hall be a bulletin board at
such office or located at a conspicuous place near an
entrance of such mine, in such manner that orders, citations, notices and decisions required by law or regulation to be posted, may be posted thereon, and be easily
visible to all persons desiring to read them, and be protected against damage by weather and against unautl1orized
removal. A copy of any order, citation, notice or decision required by this Act to be given to an operator shall
be delivered to the office of the affected mine, and a
copy shall be immediately posted on the bulletin board of
such mine by the operator or his agent.
Evidence was also presented on Citation No. 375067, which alleges a
violation of section 103(a) of the Act stating: "H. M. Peterson
denied entry by ordering the inspector, Tyrone Goodspeed, off the
mine property preventing him from completing an inspection under the
Mine Safety and Health Act of 1977." Section 103(a), in pertinent
part, provides:
For the purpose of making any inspection or investigaunder this Act, the Secretary, or the Secretary of
Health, Education, and Welfare, with respect to fulfilling his responsibilities under this Act, or any authorized
representative of 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.
tio~

These citations were decided orally from the bench. The decision rendered on these citations is located at pages 214-218 of the
transcript.
As to Citation No. 375061, it was found that the Act in section 109(a) requires such postings, that according to the testimony,
there were no postings and, in 8ubstance, that the Respondent violated the Act as charged. Respondent's defense that it was not aware
of the requirement was accepted but only as justification to reduce
the penalty.
It was further found that the abatement took place at the time
the next inspector arrived, that the violation was not serious, and
that there was slight or no negligence in connection with the
violation.
Respondent was fined a penalty of one-half of the amount assessed
by the Assessment Office or a penalty of $7.
Concerning Citation No. 375067, it was found that the operator
had denied entry by ordering the inspector, Mr. GoodspeP.d, off the
mine site, preventing him from completing an inspection under the
Act. This was found to be a violation as charged.

1630

It was further found that no abatement time was set and that the
violation was thereafter abated when two other inspectors, Mr. Cowley
and Mr. Plumb came to the mine and were allowed to inspect it. The
violation was found to be highly serious because inspections are
fundamental to an orderly administration of the Act and because
inspectors must have freedom of movement at the mines. Finally, it
was found that the operator was greatly negligent because it interfered with orderly procedures to prevent accidents and did so
knowingly.
The fine levied by the Assessment Off ice of $345 was found approryria te and assessed against the operator for this violation.
I hereby AFFIRM the decision and assessments for Citation Nos.
375061 and 375067.
The summary of the dispositions in these two dockets is as
follows:
Docket No. DENV 79-219-PM
Citation No.

Assessment or Action Taken

375049
375050
375051
375054
375055
375061
375067

$ 40
56
56

48
vacated
7
345
Docket No. DENV 79-241-PM

Citation No.

Action Taken

375052
375053

vacated
vacated
ORDER

It is ORDERED that Respondent pay total penalties of $552 within
30 days of the date of this decision.

~~ct:s~
Administrative Law Judge

1631

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

Civil Penalty Proceeding

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

Docket No. DENV 79-327-P
A. C. No. 23-00462-03002V

v.
THE PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent

Empire Strip Mine
DECISION

Appearances:

Robert S. Bass, Esq., Office of the Solicitor,
U. S. Department of Labor, for Petitioner;
George M. Paulson, Jr., Esq., Tµe Pittsburg &
Midway Coal Mining Company, 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
Joplin, Missouri, on September 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
proffered by counsel during closing argument, I entered a detailed
oral opinion on the record. It was found that the violation of 30
CFR 77.404(a) charged in the citation for Respondent's failure to
maintain a rotary drill in a safe condition did occur. It was also
ultimately found that this large operator had no history of previous
violations, that it proceeded in good faith to achieve rapid compliance with the safety standard after being served with the citation,
that any penalty assessed would not adversely affect its ability to
continue in business, that the violation was very serious and resulted
from gross negligence. A penalty of $2,000.00 was assessed.
Respondent is ordered to pay the penalty of $2,000.00 within 30
days from the date of this decision.

4Pdut / ~&{ J1v

Michael A. Lasher, Jr., Judge

Distribution:
Robert S. Bass, Esq., U. S. Department of Labor, 911 Walnut St.,
Rm. 2106, Kansas City, MO 64106 (Certified Mail)
George M. Paulson, Jr., Esq., The Gulf Companies, Law Department,
1720 S. Bellaire St., Denver, CO 80222 (Certified Mail)

1631

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

October 18, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. LAKE 79-234-M
A.G. No. 11-01764-05007

v.
Spivey Mine
ALLIED CHEMICAL CORPORATION,
Respondent
ORDER APPROVING SETTLEMENT AND
DIRECTING PAYMENT
On October 9, 1979, Petitioner filed a motion to approve a settlement agreement and to dismiss the proceeding. In support of its motion,
Petitioner states that the amount of the settlement is $226 for alleged
violations and the amount of the original assessment was $452. The
motion contained an analysis of the criteria to be followed in determining the appropriateness of the penalty, and submitted documentation in
support of the motion.
The settlement agreement should be approved for the following
reasons:
1.

Citation No. 366017 - there were no miners working in
the expected rock fall area. Miners attempted to
remove the rocks but were unsuccessful. The Operator
exhibited good faith by drilling down the rock and
bolting the area to abate the condition.

2.

Citation No. 366019 - a guard was placed across the
end of the pumps to abate. There were no moving
parts and employees did not travel between or in
front of the pumps.

3.

Citation No. 366020 - Operator placed warning devices
on the bin chutes although the operator stated that
the chutes were plainly visible and it thought that
they posed no danger to the miners.

4.

Citation No. 366022 - a loose slab was removed from
the roof by the Operator. The slab was not located
in a working area of the mine and was not readily
visible to the Operator.

1633

5.

· Citation No. 366024 - waterlines were raised 4" to abate
the citation. The lines in question had been in place
for 4 years prior to citation. Those riding the motor
had adequate clearance under the lines both before and
after the citation was abated. No specific height was
required by the governing standard.

6.

Citation No. 366025 - Rocks from area which had been
blasted broke ladder rungs. Operator had planned to
repair the ladders prior to commencing any additional
work. To abate, the Operator installed a new ladder
and ladder rungs.

7.

Citation No. 366026 - Operator removed slab which
contained visible fracture. Area in which slab was
located had not been worked in some time. Operator
assigned extra men to abate the citation.

8.

Citation No. 366027 - Operator provided safety belts
and life check lines to abate citation. Although
small, open:i,ngs of 8" X 12" and 19" X 12" posed
possibility that someone might fall through them.

Having analyzed the following factors; (a) the operator's history
of previous violations; (b) the appropriateness of the penalty to the
size of the business; (c) the degree of negligence; (d) the effect on
the operator's ability to continue in business; (e) the gravity of the
violation, and (f) the good faith in achievement of rapid compliance
after notification of violation, I conclude that the settlement agreement should be approved.
Therefore, it is ORDERED that the proposed settlement agreement is
APPROVED.
It is FURTHER ORDERED that Respondent pay the agreed amount within
30 days of this order.
Distribution:

J~ A.~:fc<find,___

Chief Administrative Law Judge

Mr. Gilbert Falter, Safety Supervisor, Allied Chemical Corporation,
Cave-in-Rock, IL 62919
Miguel J. Carmona, Attorney, Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn Street, Eighth Floor, Chicago, IL 60604
DKT8

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

1634

FEDERAL MINE SAFETY AND ~EAlTH REVIEW COMMISSBON
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

Civil Penalty Proceeding

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

Docket No. BARB 78-617-P
Assessment Control
No. 15-00600-02009F

v.
No. 4 Mine
DRY LAKE COAL COMPANY, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Stephen P. Kramer, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
William R. forester, Esq., Forester & Forester,
Harlan, Kentucky, for Respondent.

Before

Administrative Law Judge Steffey

When the hearing in the above-entitled proceeding was convened in
Barbourville, Kentucky, on September 11, 1979, the parties asked that I
approve a settlement agreement under which respondent had agreed to pay
a civil penalty of $5,000 instead of the penalty of $10,000 proposed by
the Assessment Office. The Assessment Office had waived the formula
provided for in 30 CFR 100.3 and had made findings of fact based on a
fatality report. Counsel for both parties stated that if a hearing were
to be held, most of the facts stated in the fatality report would be
contested by respondent's witnesses.
Counsel for MSHA. noted that he had been unable to get exact data
to serve as a basis for findings with respect to the criteria of the size
of respondent's business and respondent's history of previous violations.
It appears that difficulties as to the data needed for findings regarding
those criteria resulted from the fact that information stored in the computer
had become mixed with respect to whether the alleged violations occurred
at the No. 4 Mine involved in this proceeding or at other mines which
respondent had previously operated (Tr. 6-7). Also the data available to
MSHA did not remove doubt as to whether respondent is a small company
operated by one individual or part of other interests controlled by several
individuals (Tr. 7-8). In the absence of definite information, it was
agreed that respondent should be found to operate a small business which
produced about 200 tons of coal per day (Tr. 8). The lack of specific
facts also results in a finding that respondent has no significant history
of previous violations wPich would warrant any increase in any penalty
that might be assessed in this proceeding.

1635

MSHA v. Dry Lake, Docket No. BARB 78-617-P (Contd.)
Finally, it was agreed that since respondent pulled out of the area
of the roof fall, the criterion of whether respondent made a good faith
effort to achieve rapid compliance was inapplicable to any penalty which
might be assessed (Tr. 8).
There is nothing in the record to show that payment of the settlement penalty of $5,000 will cause respondent to discontinue in business.
In the absence of any information to the contrary, I find that the payment
of the settlement penalty will not cause respondent to discontinue in
business.
The foregoing discussion shows that any penalty which might be
assessed would have to be based entirely upon the two criteria of negligence
and gravity. As to the criterion of negligence, the Assessment Office
found that the roof fall which killed one miner and injured another was
the result of considerable negligence. Counsel for respondent challenged
any finding of gross negligence (Tr. 24) by arguing that his witnesses
would testify that a check of the roof shortly before the roof fall occurred
indicated that the roof was in good condition (Tr. 18). Also respondent's
counsel stated that the inspectors who wrote the fatality report did
not see the actual entry in which the roof fall occurred and that the
fatality report was the result of interviewing other persons who had been
in the area of the roof fall. Counsel for respondent stated that the
fatality report's claims that insufficient timbers had been set in the
area of the roof fall would be challenged because the roof fall had
knocked down the timbers which had been erected before the roof fall and
he also said that it was difficult to obtain timbers to help support
the roof while they were trying to remove the injured miners. Timbers
were taken from some entries where they had previously been set and used
in the entry where the roof fall had occurred. In such circumstances,
it was contended that no one knew whether an adequate number of timbers
had been set before the roof fall occurred (Tr. 22).
Respondent's attorney also stated that the fatality report's claim
that the miners did not have an understanding of the roof-control plan
would be contested. It was pointed out that respondent keeps a copy of
the roof-control plan on the bulletin board at all times and that the
miners know the provisions in the roof-control plan. Additionally, they
were using a Wilcox continuous-mining machine and most of the miners
were experienced in that type of mining and understood the provisions
of the plan (Tr. 18-19).
There would be no way that anyone could deny that the roof fall was
extremely serious because one miner was killed and another injured as a
result of the roof fall (Exh. 2; Tr. 28). Respondent claimed that the
main reason that the roof fell was that it was not known before the roof
fell that respondent's No. 4 Mine was directly under an abandoned mine
which had pillars directly above the site of the roof fall in respondent's
mine. Respondent claims that the roof in its mine took weight suddenly
and unexpectedly and that the mine foreman could not have anticipated the
roof fall which occurred (Tr. 27).

1636

MSHA v. Dry Lake, Docket No. BARB 78-617-P (Contd.)

Counsel for MSHA stated that the inspectors would testify in support
of the facts as they were stated in the fatality report, but he said
that they would be unable to support their measurements and data concerning the number of timbers in the mine and width of the entries because a
flood had occurred after the fatality report had been written and the
flooc had inundated the MSHA files where the inspectors' notes were kept
and the notes had been dstroyed. Therefore, if a hearing had been held,
the inspectors would not have had available in the hearing room any
written data to support their testimony other than the facts in the
fatality report whose accuracy had been challenged by respondent's
prospective witnesses (Tr. 5).
The foregoing discussion of the evidence which would have been
submitted if a full hearing had been held indicates that any findings
as to gravity and negligence would not be so firm as to justify the assessment of a maximum civil penalty of $10,000 where a small mine is involved.
Consequently, I find that respondent's agreement to pay a civil penalty of
$5~000 is reasonable in the circumstances and should be approved.
WHEREFORE, it is ordered:
(A) The parties' request that I approve a settlement under which
respondent would pay a civil penalty of $5,000 is granted and the settlement proposal is approved.
(B) Pursuant to the parties' settlement agreement, respondent, within
30 days from the date of this decision, shall pay a civil penalty of $5,000
for the violation of Section 75.200 cited in Order No. 1 KF (7-20) dated
February 9, 1977.

~

C. ~-J;. f)__g_,

Richard C. Steffey ~~
Administrative Law Judge
Distribution:
Stephen P. Kramer, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
William R. Forester, Esq., Attorney for Dry Lake Coal Company, Inc.,
Forester & Forester, First Street, Harlan, KY 40831 (Certified
Mail)

1637

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET. NW, SUITE 229
WASHINGTON, DC 20006

October 19, 1979

CONSOLIDATION COAL COMPANY,
Applicant

Contest of Order

v.

Docket No. WEVA 79-171-R

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

Order No. 0811292
May 15, 1979
McElroy Mine

UNITED MINE WORKERS OF AMERICA,
(UMWA),
Representative of Miners
DECISION
Appearances:

Michel Nardi, Esq., Pittsburgh, Pennsylvania, for
Applicant;
James H. Swain, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania
for Respondent;
Richard L. Trumka, Esq., Washington, D.C. for
Representative of the Miners, the United Mine Workers
of America.

Before:

Chief Administrative Law Judge Broderick
STATEMENT OF THE CASE

The above case arose upon the filing of an application for review
(called a contest of order under the newly adopted rules of procedure
29 CFR 2700.20) of an order issued under section 104(b) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 814(b) on May 15, 1979.
Pursuant to notice, the case was heard on the merits in Wheeling,
West Virginia, on September 5, 1979. Kenneth R. Williams, a Federal
mine inspector testified for Respondent; William M. McCluskey and
Robert J. Huggins testified for Applicant; Daniel Lee Rine testified
for the representative of the miners. At the close of the hearing,
the parties waived the filing of written proposed findings and
conclusions, and the matter was submitted for decision.

1638

ISSUES
1. On May 8, 1979, did a violation of 30 CFR 75.1403 exist in
the subject mine as described in Citation No. 0811290?
2. If the answer to the first issue is in the affirmative,
was the condition abated before order of withdrawal No. 0811292
was issued on May 15, 1979?
3. If the answers to the first two issues are in the affirmative, should the period of time for abatement have been further
extended?
STATUTORY PROVISION
Section 104 of the Act provides in part as follows:
(a) If, upon inspection or investigation, the
Secretary * * * believes than an operator * * * has
violated this Act, or any mandatory health or safety
standard, rule, order, or regulation * * *he
shall * * * issue a citation * * * the citation shall
fix a reasonable time for the abatement of the violation. * * *
(b) If, upon any follow-up inspection * * * an
authorized representative of the Secretary finds (1)
that a violation described in a citation * * * has not
been totally abated within the period of time as
originally fixed therein ~r as subsequently extended,
and (2) that the period of time for the abatement should
not be further extended, he shall * * * promptly issue
an order requiring the operator * * * to immediately
cause all persons * * * to be withdrawn from, and to be
prohibited from entering, such area. * * *
REGULATORY PROVISION
30 CFR 75.1403 provides: "Other safeguards, adequate, in the
judgment of an authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and materials shall be
provided."
FINDINGS OF FACT

1. On May 8 and 15, 1979, and on all other dates pertinent
to this proceeding, Applicant was the operator of a coal mine in
Marshall County, West Virginia, known as the McElroy Mine.

1639

2. On March 15, 1973, Charles B. Sturn, a Federal coal mine
inspector issued a notice to provide safeguards under 30 CFR
75.1403 to the operator of the subject mine. The notice was issued
because the main haulage track was not being maintained in a safe
workmanlike manner. It directed that "all haulage tracks shall be
maintained in a safe workmanlike manner."
3. On May 8, 1979, the supply track from the junction of
4 left off 2 North to the working section in the subject mine had
numerous kinks, high and low joints and grease on two curves to
compensate for an improperly maintained gage between the rails.
4. The track described in Finding No. 3 was a haulage tra~k.
It was not being maintained so as to minimize hazards and not being
maintained in a safe workmanlike manner.
DISCUSSION
William McCluskey, Applicant's safety supervisor at the
subject mine, testified that the track in question "was as good
or better as any supply track in the McElroy Mine." He implied
that supply tracks because they were primarily constructed of
40 pound iron (mainline tracks were made with 60 or 80 pound iron)
always had kinks and loose joints. However, he also admitted that
he had reports (after the citation was issued) that derailments
had occurred. It is clear and I find that the supply track in
question was not being safely maintained on May 8, 1979.
5. On May 8, 1979, Federal mine inspector Kenneth Williams
issued Citation No. 0811290 alleging a violation of 30 CFR
75.1403 because of the condition described in Finding No. 3. He
fixed the time for abatement at 9 a.m. May 15, 1979.
6. After the citation was issued, two crews were assigned
to abate the condition. A crew under the supervision of assistant
mine foreman Ivan R. Blake worked on the abatement as follows:
On May 9, 1979, three men worked an entire shift; on May 10,
three men worked one shift; on May 11, four men worked one shift;
and on May 14, three men worked one shift. Under maintenance
foreman Chester Nadolski, three men worked on May 9; five on May 10;
two on May 11. On May 12, a Saturday, six people worked an entire
shift, four of them working 2 hours overtime. On May 14, two men
worked all shift and on May 15, two men worked all shift. The work
of these two crews consisted in leveling and blocking track, replacing
broken rail~. bent ties, angle bars and missing bolts.
7. When Inspector Williams arrived at the section on May 15,
1979, foreman Nadolski's crew was working on the curve where the
gage had been cited as too narrow.

1640

8. When Inspector Williams arrived at the section the narrow
gage on the curve had not been corrected. The other conditions
described in the citation had been corrected.
DISCUSSION
Although Inspector Williams indicated that other areas of the
track needed more work, his testimony was somewhat vague and
unconvincing. The only work done after the issuance of the order
other than widening the gage at the curve was the replacement of
an angle bar and a bolt on a joint.
CONCLUSIONS OF LAW
1. The condition described in Finding of Fact No. 3 taken
in conjunction with the notice to provide safeguards referred to
in Finding No. 2 constituted a violation of 30 CFR 75.1403.
2. The violation referred to in Conclusion No. 1 was not
totally abated within the period of time originally fixed in
Citation No. 0811290.
3. In view of the substantial work done to abate the condition
as described in Finding of Fact No. 6 and the fact that this work was
continuing, the period of time for abatement should have been further
extended.

4. The order of withdrawal 0811292 of May 15, 1979, was not
properly issued.
ORDER
Based ori the above findings of fact and conclusions of law
order of withdrawal 0811292 is VACATED.

J
Distribution:

~#~kbi
James A. Broderick
Chief Administative Law Judge

By certified mail.

Michel Nardi, Esq., Consolidation Coal Company, Consol P~aza, 1800
Washington Road, Pittsburgh, PA 15241
James H. Swain, Esq., Attorney, Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
JAB

Attorney, United Mine Workers of America, 900 Fifteenth Street, N.W.,
Washington, DC 20005

1641

FEDERAL MINE SAFETY AND HEALTH R IEVIEW COiV'JMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILS0t4 BOULEVARD
ARLINGTON, VIRG INI/, 22203

OCT ·1 :J 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. VINC 79-109-P
A.O. No. 33-01172-03011

v.
SOUTHERN OHIO COAL COMPANY,
Respondent

Docket No. VINC 79-148-P
A.O. No. 33-01172-03013
Meigs No. 1 Mine
Docket No. VINC 79-110-P
A.O. No. 33-01173-03009
Docket No. VINC 79-111-P
A.O. No. 01173-03010
Meigs No. 2 Mine
Docket No. VINC 79-112-P
A.O. No. 33-02308-03010
Docket No. VINC 79-114-P
A.O. No. 33-02308-03012
Docket No. VINC 79-115-P
A.O. No. 33-02308-03013
Docket No. VINC 79-141-P

A.O. No. 33-02308-03009
Raccoon No. 3 Mine
DECISIONS
Appearances:

Linda Leasure, Attorney, Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for the
petitioner;
David M. Cohen, Esq., Lancaster, Ohi.o, for the
respondent.

Before:

Judge Koutras

1642

Statement of the Proceedings
These proceedings concern proposals for assessment of civil penal ties 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), charging the respondent with a total of 14 alleged
violations issued pursuant to the Act and the implementing mandatory
safety and health standards. Respondent filed timely answers, hearings were held on June 19, 1979, in Columbus, Ohio, and the parties
appeared and participated therein. The parties filed posthearing
arguments in support of their positions and they have been considered
by me in the course of these decisions.
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
110(i) of the Act requires consideration of the following criteria:
(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) whether the operator was negligent, (4) the effect on the
operator's ability to continue in business, (5) the gravity of the
violation, and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164,
30 U.S. C. § 801 et ~·
2.

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

3.

Commission Rules, 29 CFR 2700.1 ~ seq.

§

820(i).

Discussion
Docket No. VINC 79-109-P
Citation No. 279540, July 28, 1978, alleges a violation of 30 CFR
7 5. 507, and states as follows: "The battery charger unit for the

1643

scoop car operating the 002 section was located in the return air
course in the crosscut from the No. 4 entry to the No. 5 entry in the
002 section."
Petitioner's Testimony
John W. Collins, Federal coal mine inspector, testified that on
July 28, 1978, he conducted an inspection of the 002 section of the
Meigs No. 1 Mine and that he observed an S & S scoop car batterycharging unit located in the return air course in the No. 5 entry.
He observed that the permanent stoppings were installed to the third
connecting crosscut outby the faces, and the second connecting crossCllt outby the face had a curtain which, according to the roof-control
plan, is a temporary stopping. However, it was separating the intake
from the return. On the other side of the temporary stopping located
in the return entry, he observed a battery charger unit which he cited
as a nonpermissible piece of equipment since it was not located out
of the return. The only connection that the battery charging unit
should have with the return is that the air current that flows over
the battery charger should be air that is coursed directly on the
return (Tr. 52-56).
Inspector Collins confirmed his prior statement made on his
inspector's statement that the occurrence of the event against which
the cited standard is directed was "probable." The mine does liberate
methane and it is currently on a 15-day spot inspection cycle. The
return air comes off the section and returns over the nonpermissible
battery charger which is a potential hazard in the event of a possible
accumulation of methane. He determined that the condition "should
have been known to the operator" because the preshift and onshift
examinations of the section should have revealed the existing condition. With respect to good faith, the inspector indicated that there
was normal compliance (Tr. 57-60).
On cross-examination, Inspector Collins testified that the
battery charger was operating at the time the citation was written or
he would not have issued the citation (Tr. 61-63). However, in
response to questions from the bench, he testified that he had no
present recollection as to whether or not the battery charger was in
fact -operating, and his notes did not reflect anything that would
indicate that it was operating. However, his normal practice is not
to issue a citation of this kind unless the battery-charging station
is in fact operational. The charging units are moved quite often
because of advancing sections, and it is often necessary to reroute
them around crosscuts in order to get them to the proper location
on the section so that the charger units can be ventilated directly
to the return. The function of the battery charger is to recharge
the batteries for the sand scoops. If a nonoperational batterycharging unit was located in the return, it is possible that someone
would hook it up to some other piece of equipment at some time during

1644

the mining cycle, and in such a situation, he would not cite the
condition unless he actually saw it connected to the power center or
in operation. Since the unit is moved from one section to another,
he did not know how long this particular battery-charging unit was in
the area cited, and the unit was not mentioned in the preshift and/or
onshift books, (Tr. 63-67).
On redirect examination, Mr. Collins testified that he observed
the area after abatement and that the location of the temporary stopping had been changed by moving a line brattice made of a flameresistant plastic material on the other side so that it would make
a difference in the intake and return (Tr. 67).
Respondent's Testimony

w. Keith Carpenter, respondent's safety representative at the
No. 1 Mine, testified that he made the drawing (Exh. R-1), which
shows the air course on the day the subject citation was issued, and
it depicts the location of the battery charger, the ventilation curtains, and the stoppings, but does not indicate a curtain between the
battery control unit and the No. 4 entry. He discussed with Jack
Stallings, a union representative and safety committeeman who was
present when the citation was written, whether there was a curtain
between the No. 4 entry and the battery charger at the time the citation was written and his response was that he saw no curtain. The
battery unit is located in intake air which does not come through the
return until it reaches the immediate return. The air that passes
over the battery charger does not reach or go back to the working
faces, but rather, goes directly into the return air. The battery
charger was not energized at the time the citation was written, and
copies of the permissibility book signed by two mechanics the day
that they were checking the scoop, reflects it was unplugged from
the power center due to the fact that the mechanic was checking the
permissibility of the power center at that time. Abatement was
achieved by installing a curtain between the battery charger and the
No. 5 entry (Tr. 68-73).
On cross-examinati.on, Mr. Carpenter testified that he made the
diagram (Exh. R-1) the day after he returned to the mine surface. He
also noted a description of the process of the movement of the air,
but does not recall whether or not he did that on the same day. He
made the diagram because he felt that the condition was not a violation, and he discussed his observations regarding the alleged violation with Jack Stallings the day before the hearing and he does not
remember having a similar conversation with him over a year ago
(Tr. 75-76).
In response to questions from the bench, Mr. Carpenter testified
that the basic difference between his diagram and that of the inspector, is that the inspector's diagram does not indicate the presence of

1645

a curtain. The curtain which was installed as part of the abatement
was not present at the time the citation issued. He did not see the
curtain, but he was present when the condition was observed by the
inspector. Assuming that the curtain was there at the time of the
citation, this would have placed the battery charger in intake air
although the inspector stated that it was in the return. Even though
the curtain was on the left side of the charger, there was still intake
air flowing over the return because all the air is pulled in at the
stopping depicted by the double parallel line on the diagram which
connects the two blocks. There was a movement of air coming over the
charger, and even though the curtain was behind it, this was still
considered intake air as it came over the charging unit (Tr. 77-80).
Inspector Collins was recalled for rebuttal testimony, and testified that if the hattery charger were located where it is located
in Exhibit R-1, and there was no curtain on either side of it, he
still would have issued the notice of violation since the area is
also a return area because the air from the section is returning
through it (Tr. 81-82).
On cross-examination, Mr. Collins testified that on Exhibit R-1,
although a curtain had been drawn between the No. 4 and No. 5 entries,
there was no curtain on either side of the battery charger; thus the
battery charger is located in return air and anything returning in
that area is return air (Tr. 82-83). If the battery charger were
'located between the No. 4 and No. 5 entries without curtains on either
side, it would be located in return air since it would be on a return
area because the battery charger was located as indicated by both
diagrams (Tr. 83-86).
Mr. Carpenter, upon being recalled, testified that intake air
comes up the No. 1 entry to the face and around the check curtain and
back out the entry, and that the purpose of the check curtain is to
prevent complete and total loss of air. There is enough leakage in
the intake air to prevent complete, total loss of air, and the air
goes around the faces and back out, and it becomes return air when it
gets to the immediate return in the No. 5 entry (Tr. 86-87).
Docket No. VINC 79-148-P
Citation No. 279550, August 2, 1978, alleges a violation of
30 CFR 75.1003(a), and states as follows: "The trolley wire was not
guarded where supplies for the 006 section were located along the
006 section track. Men were required to pass under the trolley wire
in order to place supplies from the supply cars to the storage area
for the supplies for the 006 section."
Petitioner's Testimony
MSHA inspector Collins testified that during the course of conducting an inspection of the Meigs No. 1 Mine on August 2, 1978, he

1646

observed along·the 006 section track that the trolley wire was not
guarded where supplies for the 006 section were located along the
006 section track. .Men were required to pass under the trolley wire
in order to place supplies from the supply car to the storage area
with the supplies in the 006 section. Supplies were being unloaded
into the crosscut from the supply car to the storage area, but he
could not recall whether or not he actually saw the supplies being
unloaded; however, his notes indicate that he had spoken with two
utility men on the section who indicated that they had gone to the
supply area to pick up some resin and that they had passed under the
trolley wire to obtain it. He indicated that the condition should
have been known to the operator because in order to gain access to
the section, it is necessary to travel through the area. With respect
to the gravity of the situation, he noted that injury could be a
"probable" result since persons could come in contact with the trolley
wire as they pass under it and injury could result from the shock that
they could receive because the supply car itself is grounded to the
track and one person would be in danger.
The respondent uses a yellow piece of trolley guard to guard
trolley wires in the mine and it is possible for one to come into contact with this guarding and not recei·1e a shock. The normal guarding
procedure is to put the trolley guarding, which is a plastic-type of
insulated material, over the top of the wire itself and install belt
hangers to keep it in place. To his knowledge, no temporary type of
guard had ever been used in the mine (Tr. 102-107).
On cross-examination, Mr. Collins confirmed that his notes
reflect that the trolley wire was energized at the time he cited the
alleged violation, but they do not reflect whether or not it was energized at the time the two men passed under it. The only time that the
trolley is deenergized at the mine is during any installation of a
trolley system, and a trolley wire is deenergized by the tripping of
switches that are located at certain branch line locations and in
outby areas (Tr. 107-109). The trolley wire is not normally guarded
along its entire length, but it is guarded at the mantrip stations
and areas where persons have to pass under it, such as refuse holes,
supply areas, and also at doors on the track. A trolley wire is
required to be guarded at any place a person has to pass under it.
The supply area involved was regularly used, and the trolley wire is
required to be guarded so long as men pass under it while taking
supplies from the supply cars to the storage area (Tr. 110-113).
Inspector Collins testified that he could not recall the height
of the trolley wire, the height of the entry, or the type of roof
present, and he does not have such information in his notes. The
height of the trolley wire throughout the mine varies with the height
of the seam. The height of the working mine seam is 54 to 52 inches,
but the track and trolley cause it to be even higher--sometimes 6 to
7 feet. His notes indicate that he actually saw the supplies being

1647

unloaded, and he considers his notes to be accurate, but he had no
independent recollection of the particular event (Tr. 110-122).
Respondent's Testimony
Mr. Carpenter testified that he was with Inspector Collins
at the time the citation was issued but did not notice any miner
loading or unloading supplies at the place indicated on Exhibit R-1.
They rode into the area on a jeep and then pulled in directly behind
the mantrip that was parked there. The supplies were already there
when they arrived but there was no motor crew or any person unloading
supplies at the time. He conceded that in retrieving the supplies
from where they were stored, it was necessary for the men to pass
under the trolley wi.re. Except for unloading supplies, there was no
reason for men to pass underneath the trolley wire on a regular basis.
The trolley wire is sometimes deenergized since all the motor crews
and the men that are involved with transporting supplies from one part
of the mine to the other are instructed that the trolley wire is to be
deenergized when they are working under or around it. When unloading,
the men are instructed to deenergize the wire if it is not guarded,
and there are cut-off switches at the mouth of the track spur as it
comes off the main mine (Tr. 114-127).
On cross-examination, Mr. Carpenter testified that he did not
.know for certain whether the trolley wire switch was pulled when the
supplies were being unloaded. He indicated that it is reasonable to
assume that if the two supply cars were in the location corresponding
to Exhibit R-1 and somebody brought some equipment into the mine and
wanted to off-load it, they could not put the cars under the guard,
but had to move them elsewhere. Mr. Carpenter stated that it is reasonable to conclude that if the inspector came in and saw the supplies, he would naturally assume that at some point in time somebody
put those supplies in by passing under the unguarded cable (Tr. 132).
The citation was abated by guarding the area (Tr. 134-138). He did
not recall the height of the trolley wire (Tr. 139).
Docket No. VINC 79-110-P
Citation No. 278046, Hay 11, 1978, alleges a violation of 30 CFR
75.503, and states as follows:
The No. 7009 shuttle car involved in the non-fatal
accident in 008 section was not maintained in permissible
condition in that at 7:30 p.m. on 5/10/78, the cable was
pulled out of the reel and burned the insulation off the
reel and the cable was re-entered, the shuttle car put
back in operation and the damaged reel was not repaired.

1648

Petitioner's Testimony
MSHA inspector Dalton E. McNece, Jr. testified that while
conducting an accident investigation at the mine on May 11, 1978,
he issued a citation involving the No. 7009 shuttle car which was
involved in an accident in the 008 section. His investigation
began on the evening of May 10, shortly after he had received word
from a company official that an accident had occurred. In investigating the shuttle car which was involved in the accident, he and
fellow inspector Don Osborne found one place in the trailing cable
where the accident victim had received a shock from the trailing cable
while standing in mud, and in addition, a bare place was found in the
trailing cable. A citation wa8 issued for a violation of 30 CFR
75.517 because the trailing cable was not properly and adequately
insulated. Mr. McNece then proceeded to inspect the shuttle car and
found that the cable had been pulled out of the trailing cable reel.
When it had been pulled out of the trailing cable reel, the 250-volt,
DC power cable caused a short circuit and burned the insulation off
the trailing cable reel. There was a sharp edge on the reel despite
the fact that the shuttle car was equipped with insulation on the
trailing cable reel, and the car had been put back into operation in
that condition. Had this condition continued, another man could have
been shocked or possibly electrocuted by the shuttle car becoming
deenergized.
Mr. McNece stated the operator was negligent because one man had
already been injured by the trailing cable, and the repair work was
supervised by a certified company official. Although the cable reel
had been checked, anyone shining a light into the reel compartment
would see the bare metal on the cable reel. Mr. McNece believed the
condition cited was very serious due to the fact that it could cause
another person to receive an electrical shock or possibly be electrocuted. Approximately 11 persons could be affected as a result of the
condition since 10 people work in the section in addition to the foreman. The condition was abated by insulating the trailing cable reel
and by spraying approved insulating paint onto the shuttle car reel
and trailing cable reel. After the paint dried, it provided adequate
insulation for the trailing cable reel and restored it to its original
approved condition (Tr. 150-152).
On cross-examination, Mr. McNece testified that the earlier
injury which prompted the investigation occurred when a miner came in
contact with an energized power cable that had a bare place in it.
When he arrived at the mine, the miner who was hurt was still at the
hospital, but he would not classify the injury as serious because
there was no lost time. However, the electrical shock that was sustained by the miner was serious enought to warrant hospital treatment
and it disturbed the miner's nervous system. The existence of an
uninsulated area on the trailing cable reel could lead to the
electrocution of an individual. Although there is short-circuit

1649

protection to keep the current from going to ground, any malfunction
to this short-circuit protection would send 250 volts of direct current onto the shuttle car. If an individual were to come into contact
with the car he could possibly be electrocuted since the area was very
wet, and mud and water is a very good conductor of electricity. In
order for an individual to be hurt, three conditions have to be
present; namely, insulation being off the cable, insulation being off
the reel, and a malfunction in the short-circuit system. A violation
of section 75.503 occurred because the insulation was not on the
trailing cable reel as it came approved, and section 75.503 requires
that it be maintained in permissible condition (Tr. 153-157).
Mr. McNece testified that the shuttle car had been taken out of
service at 7:30 p.m., the day the citation issued, and men were taking
up cable slack from the power center that was anchored behind the
trailing cable. \.\1hile in the process of reeling the cable, the
individual who was pulling up the extra slack came into contact with
the exposed bare wire and was shocked when it came by the anchor
point. The shuttle car was then placed back into operation, but after
learning that the injured man was to go to the hospital, the area was
fenced off for the investigation. He could not explain the interval
between ·;:he time when the man was injured and when it was determined
that the injury was serious. It was evident that no examination was
made of the trailing cable reel after the shock incident to determine
whether it was damaged. The only thing that was done was to pull up
the cable slack, reenter it in the reel, and placing the excess on
the reel. He had to personally pull the cable off the reel in order
to wipe the mud off with a rag so that he could examine the cable and
reel compartment (Tr. 163-168).
Hr. McNece testified that he determined the trailing cable was
not examined because if it had, the bare place in the trailing cable,
which was approximately 2 inches in length, would have been seen. The
bar.e place was obvious and he took a rag and wiped the mud off the
trailing cable to see the 2-inch spot. The cable in question was
approximately 500 feet long, and he conceded it was possible that
someone could examine a 500-foot cable and not locate a 2-inch bare
spot covered with mud. He could not state that mine management did
not conduct a visual observation of the cable by just walking along
and looking at it, but in his opinion, the cable needed very close
attention since it lay in mud and water and an individual had been
shocked by it (Tr. 169-171).
In addition to the citation for the insulation being burned off
the reel, another citation was issued for a violation of section
75.517, in regard to the insulation being burned off the cable. He
examined the cable and found only one bare spot, and in order for an
injury to occur to an individual, a bare spot on the reel would have
to come into contact with any bare spot on the cable, but in this
particular case, only one bare spot was detected (Tr. 171-173). The

1650

insulation was.worn off the reel and this rendered the shuttle car
nonpermissible since it is required. to be insulated. The reason the
shuttle car was not taken out of service was because mine personnel
had to pick up the excess cable on the shuttle car in order to move
it out. When the man was injured and the accident was determined to
be of a serious nature, the trailing cable reel should not have been
picked up again. However, he does not contend this was done intentionally. By use of the term "put back in operation," he does not
mean that the shuttle car was actually used to run coal, but rather,
he means that it was moved back out of the way (Tr. 173-180).
On redirect examination, Mr. McNece testified that he determined
that the violation was "significant and substantial" because it met
the four criteria for the unwarrantable category, namely, (1) it was
a violation of a mandatory health and safety standard, (2) it did not
constitute an immindent danger, (3) it was significant and substantial
in that it could cause death or serious physical harm to the miner,
and (4) it was known or should have been known by the operator (Tr.
180-182).
Docket No. VINC 79-111-P
The proposal for assessment of civil penalties filed in this proceeding alleges two violations. Citation No. 280459, July 25, 1979,
Plleging a violation of 30 CFR 75.605, was settled by the parties.
The initial assessment was for $305, and the parties were afforded an
opportunity to present arguments on the record in support of a proposed settlement for $150. In support of the settlement, petitioner
argued that if called to testify, the inspector would state that the
trailing cable in question was not clamped securely to the machine,
that the strain clamp had loosened and slipped, but the inspector was
of the view that there was no negligence on the part of the respondent in allowing the condition to exist. However, in the initial
assessment, the Assessment Office considered that the respondent was
negligent. In view of the absence of negligence, petitioner argued
that the reduction in the assessment is warranted. In the circumstances, the proposed settlement was approved (Tr. 19-24).
The remaining citation in this docket, namely, No. 278095,
July 20, 1978, 30 CFR 75.200, was tried, and testimony and evidence
was adduced by the parties in support of their respective positions,
and a discussion of this citation follows.
Citation No. 278095, July 20, 1978, alleges a violation of
30 CFR 75.200, and states as follows: "The approved roof control
plan was not being complied with in 005 section in that a cut of coal
18 feet wide and 10 feet deep was loaded out and temporary roof
supports were not installed in the crosscut between Nos. 2 and
3 entries."

1651

Petitioner's Testimony
MSHA inspector McNece testified that on July 20, 1978, in making
a routine inspection of the Meigs No. 2 Mine, he observed that the
crosscut between the No. 2 and No. 3 entries was driven 17 feet wide
and 10 feet deep, and that temporary supports were not installed as
required by the approved roof-control plan. The mine's approved roofcontrol plan requires that such supports, on 5-foot centers, be
installed within 15 minutes after the loading has been completed in
the area. When he arrived on the section at 11 a.m., the loading crew
was loading the crosscut. from the No. 3 entry towards the No. 4 entry
and the loading cycle was two-thirds of the way completed. It took
more than 15 minutes to mine out two-thirds of a cut of coal, and he
was told by the loading crew that they had cleaned up the crosscut
between No. 2 and No. 3 entries and had moved into the crosscut
between No. 3 and No. 4. At the time, he made notes and drew a small
sketch or diagram of the area, labeling the entries, and it indicated
that the crosscut to the right in No. 3 entry was loaded out
(Tr. 190-192).
Mr. McNece testified that the respondent should be familiar
with the approved roof-control plan, and a certified company official
on the working section should have instructed someone to install the
temporary supports. A foreman was on the section at the time. As
for the gravity of the situation, Mr. McNece testified that the lack
of temporary supports would leave an area 18 feet wide and 10 feet
deep unsupported and it would be possible for someone to walk under
unsupported roof believing it was roof bolted. The condition of the
roof was solid, and it had no breaks or cracks in i t (Tr. 193-194).
On cross-examination, Inspector ~kNece testified that he issued
the citation just after he arrived at the location cited and he did
not remain there for 15 minutes in order to determine whether
15 minutes had actually passed. Instead, he determined the passage
of time from the fact that the individuals who were loading the
crosscut between No. 3 and No. 4 had loaded two-thirds of the cut,
and they could not have accomplished such loading in just a 15-minute
period. The term "loading cycle" means using a loading machine for
loading the coal out, bringing it to the shuttle car, transporting it
from the face to the section loading point, and then discharging it
onto the belt conveyor. This process of loading could occur in every
face area where coal is shot or cut down (Tr. 194-198).
Respondent's Testimony
Lowell Carte, safety supervisor, Raccoon No. 3 Mine, testified
that he is familiar with the approved roof-control plan (Exh. R-1),
and that the plan requires that the installation of temporary roof
supports after a loading cycle must be started within a 15-minute

1652

time period, and once such support work is begun, it must be completed. Conceivably, in the event of damaged supports, it could take
more than 15 minutes to install such supports (Tr. 199-204).
Mr. Carte testified that if Mr. McNece arrived on the section
at 11 a.m., it would probably take an additional 5 or 10 minutes
to arrive at the actual mining area. He furth~r testified that based
upon his mining experience, he would not agree with the inspector-'s
statement that two-thirds of a cut of coal could not be loaded out
in 15 minutes, bec~use he has run a loader in a coal mine and he
knows that a decent loaderman can load a place out in 20 minutes,
and in 15 minutes if he is a good loaderman (Tr. 204-205).
On cross-examination, Mr. Carte stated that he was not present
when the inspector made his inspection, and he only recently conferred
with the safety supervisor concerning the citation. There are people
in the Raccoon No. 3 Mine who are capable of loading a section in 15
to 20 minutes, and although he has never timed such individuals, he
has observed them loading coal in the past, and would estimate they
could load an 18-foot cut-out 110 feet deep in less than 10 minutes,
and that it is even possible to do it in less than 15 minutes, depending on how far the coal has to be transported and how close the feeder
is to the face area (Tr. 205-207).
Mr. Carte testified that the usual procedure followed in the
Raccoon Mine with regard to roof control is that a loading crew,
the loaderman, or helper, install the temporary supports before
leaving the area. The only reason for not following such a procedure
would be that they did not have the temporary supports or the supports
they were using were damaged. In such a case, they would probably
relay the information to the utility man on the section :who would
probably go to the supply area and bring in additional temporary
supports (Tr. 208-209).
On rebuttal, Inspector McNece testified that based on his experience, if everything were working properly and assuming the men were
working productively, he would estimate that it would take 30 to
45 minutes to load a section similar to the section in question
(Tr. 209-213).
Docket No. VINC 79-141-P
In this docket, the proposal for assessment of civil penalties
filed by the petitioner seeks civil penalties for three alleged violations. However, the parties proposed a settlement for two of the violations and were afforded an opportunity to present arguments on the
record in support of the proposed settlement for Citation No. 279953,
July 25, 1978, 30 CFR 75.400, and Citation No. 279990, August 3, 1979,
30 CFR 75.1100-2(f). With respect to Citation No. 279953, the petitioner argued that the conditions cited were abated in a rapid fashion

1653

and that the iespondent exhibited good faith in the abatement of the
conditions. With respect to Citation No. 279990, the petitioner
pointed out that there was an arguable question of interpretation with
respect to the application of the cited standard, particularly with
respect to the question of what constituted an "oil storage station"
within the meaning of the cited standard. Coupled with the fact that
fire extinguishers were in fact provided on the section, and that the
respondent exhibited rapid abatement of the violation, a decrease in
the initial proposed settlement amounts were warranted (Tr. 42-45).
After consideration of the the arguments presented in support of
the proposed settleraents, I find and conclude that they should be
approved. Accordingly, civil penalties in the amount of $160 for
Citation No. 279953 (originally assessed at $345), and $160 for
Citation No. 279990 (originally assessed at $225) are approved as
dispositive of these two citations.
The remaining citation in this docket, No. 279989, August 2,
1978, 30 CFR 75.1710-l(a)(4), was tried, and testimony and evidence
was adduced by the parties in support of their respective positions,
and a discussion of this citation and the supporting arguments
follows.
Citation No. 279989, August 2, 1978, citing a violation of
30 CFR 75.1710-l(a)(4), states as follows: "The front canopy had
been removed from the Co. No. 4539 roof bolting machine operating
in 006 section. The average mining height was more than 42 inches."
Petitioner's Testimony
MSHA inspector Jesse J. Petit testified that during the course
of conducting an inspection at the 006 section of the Raccoon No. 3
Mine, he observed that the front canopy of the No. 4539 roof-bolting
machine had been previously removed. The machine was in operation
at the time he observed this condition and he issued a citation. The
average mining height on this particular section was 48 to 50 inches,
and the condition was abated by installing the front canopy. In
filling out the gravity sheet accompanying the citation, Mr. Petit
indicated that the machine had previously passed through some
extremely low coal in the section, and this evidently resulted in
the removal of the canopy. He determined that the operator should
have known about the alleged violation because the front canopy on
the roof-bolting machine is not to be removed, and he believed that
the condition could have resulted in a probable roof fall (Tr. 216219).
On cross-examination, Inspector Petit testified that he took
measurements at various locations on the section to determine that the
average coal height was 48 to 50 inches. His notes do not indicate
that he took such measurements, but he knows that he would not have
issued the citation unless he had taken measurements. Even if the

1654

mining height is less than 42 inches, he would still have issued a
citation because the front canopy is supposed to remain on the
machine. The mining height in this particular section of the
Raccoon No. 3 Mine fluctuates (Tr. 219-221).
In response to questions from the bench, Mr. Petit testified that
the front canopy must remain on under all conditions. All three of
Southern Ohio Coal Company's mines have been granted relief for up to
56 inches mining height before the canopies can be removed from roofbolting equipment, with the exception of the front canopy. Even when
the equipment is operating in low coal, the front canopy cannot be
taken off. He does not know the height of the canopy or the canopy
adjustment heights. No one gave him an explanation as to why the
front canopy was off at the time he cited the condition, and he served
the citation on Ray Lieving, the master mechanic. The canopy in question was a hydraulic canopy, and at the time he issued the citation,,
the roof bolter was energized. However, he did not know if it was in
the process of installing bolts, and he did not remember whether he
saw anyone using it, standing under it, or kneeling under it. The
roof conditions in the section were good, and under the circumstances,
he would consider this a nonserious vLolation although it could conceivably result in a fatality (Tr. 219-225).
Respondent's Testimony
Mr. Carte, testified that he is familiar with, and has previously
measured the height in the 006 section, and that at the time the
citation was issued in the No. 1 and No. 2 entries, the coal seam
measured anywhere from 29 to 31 inches. He measured several areas on
the section, and there were areas on the section in Nos. 3, 4, and
5 entries inby the feeder that ranged anywhere from 46 to 56 inches
in thickness. In the No. 2 entry where the coal vein had lowered, it
was from 29 to 31 inches in thickness. Once low coal was encountered,
they were operating in it for four or five breaks and they h&d to mine
at least another five breaks before they exited the small seam of
coal. The particular roof-bolting machine that was cited was working
in the low coal area, and fireclay had to be taken to make height for
the miner to get in to mine the low seam of coal. In order for the
roof bolter to bolt the top, the canopy had to be removed because it
extends approximately 8 inches higher than the roof-bolting machine
itself. There was no way possible to bolt with the canopy on, the
canopy could not be raised, and there was no human way of raising it
or even going into the area (Tr. 226-239).
Docket No. VINC 79-112-P
In this docket, the proposal for assessment of civil penalties
filed by the petitioner s~eks civil penalty assessments for four
alleged violations of certain mandatory safety standards. During the
course of the hearings, the parties were afforded an opportunity to

1655

present arguments in support of a proposed settlr,rn:ent for three of
the violations, namely Citation Nos. 279961, August 9,1978; 279964,
August 10, 1978; and 279973, August 15, 1978; all of which were issued
for alleged violations of the provisions of 30 CFR 75.606. The initial assessments made for these citations were $225, $295, and $195,
respectively. In support of a proposed settlement in the amounts of
$122, $140, and $90 for each of these citations, petitioner argued
that the reductions were warranted in view of the fact that after
evaluation of the negligence criteria, the petitioner was of the view
that there was little or no negligence on the part of the respondent
in that there was no way ·that the respondent could have been aware of
the fact that the equipment involved in each of these citations was
in fact positioned in such a fashion as to be resting on the cables
in question. The citations were issued after the inspector found
that. certain pieces of equipment had been parked in such a fashion as
to come to rest on the trailing cables. Although petitioner conceded
that the operator is responsible for insuring against the type of
violations cited, it believes chat the respondent could not have
been aware of the fact that the equipment operators had in fact
positioned the equipment in question in such a fashion as to be in
violation of section 75.606, which requires that the trailing cables
be adequately protected to prevent damage by mobile equipment
(Tr. 31-35).
In view of the fact that the evidence and abatements reflect
that the conditions cited were immediately abated and that the cables
in question were not damaged, I conclude and find that the proposed
settlements should be approved. With respect to the remaining citation in this docket, the parties presented testimony and evidence in
support of their respective positions, and a discussion of this
citation follows.
Citation No. 279997, August 8, 1978, 30 CFR 75.402, states as
follows: "Rock dust had not been applied to the roof, ribs and floor
of the last open crosscut between Nos. 4 and 5 entries, 009 section.
A spot rock dust sample was collected to substantiate the citation.
The distance through the crosscut was 60 feet."
Petitioner's Testimony
MSHA inspector Petit testified that during the course of conducting an inspection at the Raccoon No. 3 Mine on August 8, 1978, he
observed that rock dust had not been applied to the last open cTosscut between the Nos. 4 and 5 entries. He took a dust sample at the
location, which involved a band sample of the roof, rib and floor,
and the results indicated 47 percent incombustible. The dimension
of the crosscut was 60 feet, and during the time that he was in the
area, he did not observe any rock dusting in any other crosscuts or
entries. The mine does have a program for rock dusting that calls
for all crosscuts to be rock dusted within 40 feet of the faces except

1656

in those areas that are too wet. He does not remember looking at the
preshift book; however, he usually makes it a practice to so do before
entering the mine. The respondent shut the whole section down and
immediately assigned men to rock dusting. The rock dusting was completed at 11 o'clock, and he believes that the men must have had some
additional work to do in the area, such as shoveling the ribs, or
scooping up the crosscut, since it should not have taken an hour to
rock dust 60 feet. The only explanation for taking that long to rock
dust 60 feet is the lack of available rock dust on the section, or the
cleaning of the section first. He observed rock dusting being done
prior to terminating the order, and he remained there while it was
being done (Tr. 249-253).
On cross-examination, Mr. Petit testified that if there was a
coal accumulation he would have had to issue the citation under a
different standard, and he did not know what time the company discovered the condition. On his gravity statement, he indicated that the
condition "should have been detected" by a preshift e:x1amination at
the end of the prior shift. The citation was written at 10 o'clock
in the morning, and the oncoming shift does not arrive on the working
section •mtil 8:45 a.m. or 9 a.m., and the earliest arrival time would
be 8:30 a.m. The citation was abated at 11 a.m, and prior to issuing
the abatement, he is certain that he did not leave the section and go
to other areas. However, he indicated that it is possible that he was
in another area of that particular section ana that the area that
needed rock dusting had been taken care of in 5 or 10 minutes (Tr.
253-256). There was the possibility of fire resulting from a cable
being shorted or an energized cable being shorted (Tr. 256-257).
Docket No. VINC 79-114-P
Citation No. 277726, August 29, 1978, alleges a violation of
30 CFR 75.1405, and states as follows: "The Company Nos. 8730 and
8107 stone haulage cars, located on the surface track in the supply
yard could not be coupled without a person going between the ends of
the cars. Order issued because: sufficient effort was not made to
abate the citation."
Petitioner's Testimony
MSHA inspector Petit testified that in conducting an inspection
on August 29, 1978, at respondent's Raccoon No. 3 Mine, he observed
that certain uncoupling devices on a train of six rock cars, namely,
car Nos. 8107 and 8730, had broken uncoupling devices. The cars were
loaded with rock, and they were eventually going to the rock dump.
The cars could not be uncoupled without someone going between the
ends of the cars, and he determined this due to the fact that it was
necessary to position oneself in between the cars in order to uncouple
them. Each uncoupling device consisted of a rod or lever that extends
on both sides of the car, from the middle of the car outward where a

1657

person can raise it up from the outside and uncouple it without going
near the rail. He issued the citation at 1:15 p.m., and set a termination deadline for 4 p.m., that same day. He checked the coupling
devices on other haulage cars and found that they were all right
(Tr. 276).
On August 30, 1978, he returned to the mine to check the cars
again and he found that no effort had been made to abate the citation
by the 1:15 p.m. deadline. The No. 8107 haulage car had been used
after the citation was issued, but car No. 8730 was tagged out and
off the track, but no effort had been made to have it repaired. The
subsequent order was abated in 31 minutes.
Mr. Petit believed that the operator was negligent in that a
more thorough check of the haulage equipment should have detected the
damaged uncoupling devices. He believed that the condition could
result in a fatal injury in the event the car should happen to roll
while someone was trying to uncouple it. That person could be run
over, or at the least be knocked down or receive a broken leg. When
he returned on August 30, 1978, he issued an order rather than granting additional time for abatement because while the company had tagged
out two of the cars, car No. 8107 rock car was not tagged out and was
still on the rails (Tr. 277-279).
On cross-examination, Inspector Petit testified that the last
time that the cars had.been removed was when they were brought out
of the mine. At the time he issued the order of withdrawal, the cars
were not in use, but car No. 8107 was still on the rails and could
have been used at any time. It had been used after the citation
issued, but this was not improper as long as it had been repaired
by the abatement deadline. There was no danger connected with car
No. 8730 since it was tagged out and off the track, and he does not
recall asking anyone if car No. 8101 had been repaired (Tr. 279-281).
According to Mr. Petit, a welder would have been required to
repair the uncoupling devices, but he did not know whether there was
a welder on each shift, how busy the repair shop was that particular
day, or how many jobs the welder had to do, and he did not attempt to
find out. He cited a violation of section 75.1405, which is the section that pertains to underground mining, and he chose to cite it
under that section rather than Part 77 because the cars are underground
more than they are on the surface. It is possible that they are used
1 or 2 days a month, and would be on the surface the other portion
of the month. He does not know of any requirement in Part 77 that
requires automatic coupling devices for cars while they are located
on the surface (Tr. 281-283).
In response to questions from the bench, Mr. Petit testified that
the surface area was a regular track haulage area for transporting

1658

supplies underground and transporting loaded rock cars from underground to the surface. The track does go underground, it is a spur
of the mine, and the rock that was in the two cars came from underground. He did not consult with anyone in regard to fixing the abatement time since he believed that 7 hours was a sufficient time in
which to repair the equipment, and he does not remember whether anyone
complained about the abatement time (Tr. 286-288)~
Respondent's Testimony
Chris Mapper, surface foreman, Raccoon No. 3 Mine, testified that
after the citation was issued, he was instructed to remove the two
cars and unload them, remove them from the track, and then transport
them to the shop for repairs. When they finally got the cars to the
shop it was probably 3 to 3:30 p.m., and due to the weight of the
cars, a forklift had to be used to get them off the track. Each car
weighs approximately 5 to 6 tons, and the cars were not used prior to
the time they were taken off the track. He is aware that Mr. Petit
issued Order of Withdrawal No. 277727, stating that sufficient effort
was not made to abate the citation. Moreover, the welder that was
working on the cars works a straight day shift, leaving work around
3:45 p.m., and he thus he did not have time to work on the cars that
day. After the citation was issued, five other cars were tagged out
for repairs (Tr. 293).
According to Mr. Mapper, the rock cars are used only onch a month
when they shoot overcasts, but on occasion they are used 3 or 4 days
a month. The cars spend most of the time on the surface, and last
winter they were not used at all. It is possible to uncouple the cars
on the surface without an automatic coupling device, but it is dangerous (Tr. 293-294). Only one welder is dn duty on the mine surface
and he is supposed to check the cars to see if they have automatic
coupling devices before they go underground. However, once the cars
are underground, they can get bent up and they are treated roughly
when underground (Tr. 299-300).
Mr. Carte testified that at the time the initial citation issued
there was no confusion. However, on the duplicate copy of the
citation received by mine management, the car numbers were confused
and one of the wrong cars was tags out. Company policy dictates that
all cars be equipped with automatic couplers and are not to be taken
underground in a damaged condition. On the day following the citation in question, five additional cars were tagged out for being in
need of repairs and this was done at the initiative of the company
(Tr. 305-306).
Docket No. VINC 79-115-P
Citation No. 277736, September 12, 1978, alleges a violation of
30 CFR 75.200, and states as follows: "Temporary supports were not

1659

installed in the unsupported face area of No. 1 entry, 006 section as
required by the operator's approved roof control plan."
Petitioner's Testimony
MSHA inspector Petit testified that on September 12, 1978, he
inspected the Raccoon No. 3 Mine and observed that temporary supports
were not installed in the unsupported area of the No. 1 entry, as
required by the roof-control plan. An area 7 feet wide by 11 feet
long was not roo.f bolted. The area was drilled, the cutter was ready
to cut the place, and the area had been reported by the 8 a.m. to
4 p.m. shift as being bolted. The applicable section of the approved
roof-control plan required that temporary supports be installed or
that installation be begun no later than 15 minutes after the loading
cycle is completed. He determined that this provision had not been
complied with because the coal driller already had drilled the area,
and it takes 10 to 12 minutes to drill such an area. When he observed
the operation, the cutter was getting ready to cut the area, so he
determined the cutter was either moving in or was ready to move in.
The coal drill operator, or the cutting machine operator, told him
that he was told by the section foreman that the area w<is ready
to cut.
With respect to whether the operator had been negligent,
Mr. Petit testified that a more thorough examination of the working
section should have detected the violation and the fact that the area
was not ready to be cut, drilled, and shot down. Such an observation
should have been made by the presl1ift examiner. He determined the
gravity of the condition and found that a roof fall was probable, but
the roof was solid and in good cond~tion. He abated the citation
after temporary roof supports were installed on not more than 5-foot
centers, and the roof-control plan was reviewed with the crew (Tr.
327-328).
On cross-examination, Mr. Petit confirmed that the place was
drilled and that the cutter was about ready to cut the area. The
cutter was to undercut the new face and the scrap coal that is left.
Mr. Petit's notes did not reflect whether scrap coal was left, and
had there been scrap coal left, this would have indicated that the
area already had been drilled. The mining cycle was begun when the
area was drilled because it is not normal to drill ahead of the
cutting machine. In this particular case, the driller came before
the cutter (Tr. 330-331).
Mr. Petit further testified he is aware of the fact that tbe
roof-control plan permits 15 minutes from the second loading cycle to
begin on a new face of coal, but it does not permit another loading
cycle to start. Although the area had been previously drilled, the
roof bolter came in and supposedly bolted it and then the coal driller
came in. In response to the question of how he knew that 15 minutes

1660

had elapsed without beginning the installation of temporary supports.
Mr. Petit indicated that he did not even think about the 15 minutes.
He knew that the n~xt mining cycle had started since the place had
been drilled and it was reported roof bolted (Tr. 330-331).
Respondent's Testimony
Mr. Carte testified that when the preshift examiner who is the
section boss already on the section, made his rounds in the last
3 hours of the shift, and called out his report to the boss that is
coming onto the section, he automatically told him that the area was
bolted because there was enough time to allow the roof bolter to bolt
it. He noticed that the place had not been completely bolted because
there was some scrap coal left on the bottom. In the meantime, he
instructed the cuttermen to go back in the area.and scrap the coal so
that the roof bolter could continue bolting (Tr. 336-339). The mining
cycle had not been completed in this area, and under the roof-control
plan, until the cycle is completed, the plan does not require the
setting of temporary supports. Once it is started, however, it must
be completed (Tr. 340).
On cross-examination, Mr. Carte testified that although he was
not present on the 006 section on September 12, 1978, he obtained
information through his safety assistant who travels with an inspector
and the oncoming and offgoing section boss. On September 12, the
scrap coal was taken care of on the next cycle of the shift in which
the citation was issued. As the cutting machine moved in, he would
have scraped the coal, sent his roof bolter back in to install another
row of bolts, and a new cycle would have begun. The cycle could not
be completed until after the citation issued. Thus, at the time the
inspector was there, there should have been scrap coal present.
However, at the point after the section was drilled and the cutter
was being moved in, the other cycle was not being started due to the
fact that scrap coal had been left and the loader would have to come
back in and clean it out and then the roof bolter goes back in and
finishes bolting (Tr. 341-343).
Stipulations
The parties stipulated that the inspectors who issued the citations in issue were duly authorized representatives of the U.S.
Department of Labor, that they were issued to the respondent on the
dates indicated, and that the conditions cited were terminated within
the time-frames set forth in the citations (Tr. 51, 101).

1661

Findings and Conclusions
Docket No. VINC 79-109-P
Citation No. 279540--Fact of Violation
Respondent is charged with a violation of 30 CFR 75.507, which
provides as follows: "Except where permissible power connnection
units are used, all power-connection points outby the last open
crosscut shall be in intake air."
The citation here charges that the battery-charging unit in
question was located in return air rather than intake air as required
by the cited standard. After review of the testimony and evidence
presented' by the parties in support of their respective positions, the
key question presented with regard to the location of that unit lies
in the positioning of a brattice curtain or temporary stopping.
According to the inspector, the course of the ventilation current at
the cited location is determined by the installation and location of
the curtain, and the positioning of the curtain determines whether or
not the unit is located in intake or return air (Tr. 68). Here, the
inspector contends that the air being coursed over the unit was
return air, and while the same air was used to abate the citation,
the crux of the violation lies in the fact that complete air separation was not being maintained because the unit was being ventilated
by return air, and the purpose of the curtain is to serve as a
temporary stopping separating intake air from return air (Tr. 88-95).
Petitioner argues that the intent of the cited standard is to
insure that such battery chargers are adequately ventilated and are
positioned in such a manner so as to preclude a buildup of methane,
thereby posing an explosion threat in the event of arcing from the
unit (Tr. 99). In its posthearing proposed findings and conclusions,
petitioner argues that even asswning the absence of a temporary stopp:!_n·g, the lack of a stopping would have permitted the intermingling
of intake and return air. Further, petitioner points out that the
nonpermissible battery charger unit was located immediately on the
return side of the temporary stopping between the check curtain or
line brattice and the No. 5 entry, and by being positioned between
the unit and the No. 4 entry, the curtain prevented or reduced intake
airflow over the charger and exposed it to methane content in the
return air.
Respondent's argument is that the battery charger was located in
intake air and that there was no curtain between the battery charger
and the No. 4 entry. Further, respondent maintains that the charger
was not operating, and since the inspector conceded that chargers of
this type are moved often, one can assume that it was not in operation at the particular lo:.ation cited (Tr. 96-98). Respondent presented the testimony of safety representative Carpenter who apparently

1662

was not present when the inspector made his observations. His sketch
of the scene, Exhibit R-1, was prepared a day after the citation issued
and was based on purported conversations with a safety committeeman
who was apparently present but not called as a witness. The inspector's sketch of the scene, as reflected in his notes made at the time
the citation issued, Exhibit P-1, is consistent with the inspector's
testimony concerning the positioning of the curtain and the location
of the charger unit. Mr. Carpenter's notes on his sketch reflect in
pertinent part that "The battery charger was not moved to abate the
citation. The only thing that was done was to place a curtain behind
the battery charager." This tends to support the inspector's observations, rather than to contradict it.
I find and conclude that the petitioner has established a violation as charged in t·he citation by a preponderance of the evidence.
Respondent's contention that petitioner must first establish that the
battery charger unit in question was energized in order to support a
violation of section 75.507 is rejected, notwithstanding the inspector's practice of not issuing citations if it is not energized. I
find no such requirement in the standard and respondent has not persuaded me otherwise. The question of whether the unit was energized
at the time of the inspection goes to the question of gravity and 1::ay
not serve as an absolute defense to the violation. The citation is
AFFIRMED.

The inspector's testimony reflecting that the mine liberates
methane and was on a 15-day spot inspection cycle has not been
rebutted by the respondent. However, there is no evidence here that
the inspector made any methane check at the location of the battery
unit. Further, although the inspector made a sketch of the location
of the unit, for some unexplained reason, he failed to note whether
or not the battery charger in question was energized or operating at
tl1e time the citation issued, and there is no evidence that the unit
was in other than good condition. Also, there is nothing in the
record concerning the quantity or quality of air being coursed through
the section or entry where the unit was located, no indications as to
how long the unit had been in the location, and there is nothing in
the record to suggest any other violations concerning nonpermissible
equipment operating, etc. In my view, these are critical questions
concerning the actual conditions which prevailed at the time of the
citation, and lacking any further evidence in this regard, I cannot
conclude that the condition cited was serious.
Negligence
I find that the respondent failed to exercise reasonable care to
prevent the condition ci~ed and that an onshift inspection of the area

1663

cited would have detected the condition. Although the inspector and
Mr. Carpenter alluded to pertain preshift and onihift books, they were
not produced, and there is nothing in the record to support a finding
that respondent was not oblivious to, or unaware of, the condition
cited. I find that the violation resulted from respondent's ordinary
negligence.
Good Faith Compliance
I find that respondent exercised normal good faith compliance in
abating the condition cited.
Findings and Conclusions
Docket No. VINC 79-148-P
Citation No. 279550--Fact of Violation
-\
Respondent is charged with a violation of 30 CFR 75.1003(a),
which states:
Trolley wires, trolley feeder wires, and bare signal
wires shall be insulated adequately where they pass
through doors and stoppings, and where they cross other
power wires and cables. Trolley wires and trolley feeder
wires shall be guarded adequately:
(a) At all points where men are required to work
or pass regularly under the wires;
(b)

On both sides of all doors and stoppings; and

(c)

At man-trip stations.

[Emphasis added.]

In its pos thearing proposed findings and conclusions, pc-ti ti oner
argues that miners were required to pass under the unguarded wire in
question in order to unload supplies from the supply car and place
them in a storage or supply area which is indicated on Exhibit R-1.
In support of this contention, petitioner cites the inspector's notes,
recorded at the time of the inspection, which indicates that the
inspector based his conclusions in this regard on conversations with
two utility men working on the section who indicated that in picking
up some resin from the supply area in question, they passed under the
unguarded trolley wire. Petitioner contends this area was an "active
-supply hold" (Brief, p. 7). Petitioner presented no further ~rgu
ments during the hearing (Tr. 143), but did concede that it was not
conten<ling that men normally passed back and forth under the unguarded
wire as a normal routine (Tr. 142).
Respondent asserts that the petitioner failed to establish a
prima facie case in that it presented no evidence that men regularly

1664

passed under the cited unguarded trolley wire. Further, respondent
asserts that the inspector could not state whether he actually
observed men passing beneath the unguarded trolley wire, and that
respondent's testimony reflects that company policy dictates that the
wire be deenergized before men walk under it (Tr. 140-141). In addition, in its posthearing proposed findings and conclusion, respondent
asserts that petitioner has not established that the trolley wire was
energized at the time the citation issued, and that supplies could be
removed from the supply area without men passing under the trolley
wire.
As I read the requirements of section 75.1003(a), it mandates
trolley wires be guarded at all points where men are required
to work or pass regularly under such wires. I agree with the respondent's position that petitioner has not establish~d that men were
required to regularly pass under the wires at the place where the
supplies in question were located on the day the citation issued.
However, the standard also requires that trolley wires be guarded
where men are required~work. In this case, the ir;ispector testified that the supply area in question was one which was regularly
used for that purpose and respondent has not rebutted this fact. In
this regard, I believe the definitions of the terms "working section"
and "active working" found in the definitions section on Part 75,
30 CFR 75.2, is broad enough to sustain a findin~ that the area cited
by the inspector was in fact a place where miners were required to
work, and respondent's evidence does not convince me otherwise. With
regard to the argument that petitioner has not established that the
trolley wire was in fact energized at the time the citation issued, I
believe that this fact goes to the gravity of the situation presented,
and may not serve as an absolute defense to the asserted violation.
The standard, on its face, requires that trolley wires be guarded
under the co~ditions and terms specifically set forth therein, and
there is no requirement that petitioner establish as a condition
precedent that it be energized before a violation may be established.
Thus, on the facts presented here, I cannot conclude that the fact
that the petitioner did not establish that men regularly passed under
the wire or that the wire was in fact energized is controlling as to
the question of whether a violation occurred. In my view, the critical
question is whether or not men passed under an unguarded trolley wire
while performing work at the location cited by the inspector.
th~t

In this case, I believe it is clear that the inspector did not
personally observe men passing under an unguarded trolley wire, and
~
the inspector candidly admitted that this was the case. His conclusion that men passed under the wire was based on the fact that the
supplies were positioned in such a fashion that it was physically
l
impossible for them to be off-loaded from the adjacent car and track
without men actually passing under the unguarded wire. His conclusion
was supported by statements purportedly made to him by two men who
told him that they passed under the unguarded wire to obtain some

1665

of the supplies stored there, and his conversations in this regard
were documented by notes made at the time of the inspection.
Respondent does not dispute the fact that the trolley wire in
question was rtot in fact guarded, or that the supplies were not stored
at the place indicated by the inspector. Further, Mr. Carpenter
candidly conceded that in retrieving the supplies from the storage
area in question, it was necessary for men to pass under the unguarded
wire, and he also conceded that it was natural for the inspector to
assume that due to the location of the supplies someone had to pass
under the unguarded wire in order to place them in that location.
The burden of proof in this instance lies with the petitioner.
Although the best evidence of the fact that men passed under the
unguarded wire would be the testimony of the two men who purportedly
spoke ~o the inspector, neither the petitioner nor the respondent
saw fit to call these men as witnesses. However, on the facts presented here, I believe the inspector's testimdny is credible, and
the inference that men passed under the unguarded wire in off-loading
the supplies is supported by credible and probative testimony from
the inspector, including the notes made at the time of the event
in question. I find and conclude that the petitioner has established a prima facie case which remains unrebutted by any evidence
or t~stimony presented by the respondent. As a matter -0f fact, I
believe that Mr. Carpenter's testimony corroborates the inspector's
testimony that the supplies were in fact stored in such a fashion
that required men to pass under the unguarded wire in storing or
retrieving them. On the facts and circumstances here presented,
I conclude and find that the petitioner has established a violation
·by tlte preponderance of the evidence. Respondent's defense as to
the fact of violation is rejected, and the citation is AFFIRMED.
Gravity
It is clear that the inspector's notes reflect that the trolley
wire was energized at the time the citation was issued, but do not
reflect that it was so energized at the time men may have passed under
it. Although the inspector indicated that two men told him they
passed under the wire, they apparently did not state that it was
energized at the time, and that fact is still in dispute. Respondent's witness did not know whether the trolley wire switch was on or
off at the time the supplies were off-loaded, and he alluded to the
fact that employees are instructed to deenergize the wire when they
are working under or around such wires. Neither party disputed the
fact that passing under an energized trolley wire constitutes a hazard
of shock or electrocution. Under the circumstances, I conclude that
the violation was serious.
Negligence
The supplies in question were located at a plac?. where men had
to walk under the unguarded wire to either store or retrieve them.

1666

In these circumstances, I conclude that the respondent had a duty to
exercise reasonable care to insure that the wire at that location was
guarded. Its failure to do so constitutes ordinary negligence and
that is my finding.
Good Faith Compliance
The citation was abated by guarding the area in question, and
there is no evidence that abatement was not achieved within the time
fixed by the inspector. I find that respondent exercised normal
compliance in abating the condition cited.
Findings and Conclusions
Docket No. VINC 79-110-P
Citation No. 278046--Fact of Violation
Respondent is charged with a violation of 30 CFR 75.503, which
provides as follows: "The operator of each coal mine shall maintain
in permissible condition all electric face equipment required by
§§ 75.500, 75.501, 75.504 to be permissible which is taken into or
used inby the last open crosscut of any such mine."
The thrust of the violation in this case is the assertion that
the presence of a worn or "burned out" spot on the cable reel on the
shuttle car, which resulted in the destr~ction of the j_nsulation at
that point, rendered the car nonperrnissible and in violation of the
permissibility requirements of section 75.503. In support of the
citation, petitioner has presented the testimony of Inspector McNece,
who, upon investigation of an accident concerning a shock received
by a miner in conjunction with the use of the shuttle car in question,
determined that the cable reel had been damaged. The inspector determined that the car in question had been used inby the last open crosscut and that the damaged reel rendered the car nonpermissible.
Respondent presented no evidence to rebut the inspector's findings
concerning the condition of the shuttle car. Its defense to the
citation focused on the manner in which MSHA's Office of Assessments
assessed the violation (Tr. 187-189), and this argument is addressed
by me below in my findings concerning the question of gravity. As
for the fact of violation, I find that petitioner has established a
violation by a preponderance of the evidence and the citation is
AFFIRMED.
Negligence
The inspector conceded that the one bare spot in question on the
cable reel was approximately an area of some 2 inches and the cable
was some 500 feet in length. He also indicated that he discovered
the bare spot only after he wiped some mud off the cable with a rag,

1667

and further c.onceded that it was possible that someone could examine
the cable and not locate or observe the mud-covered, 2-inch bare spot.
While he could not state that any visual examinaiion was made, he
did indicate that "close attention" was required to discover the bare
spot (Tr. 170, 173-174).
With regard to the movement of the shuttle car after the injury,
and the inspector's assertion that the car was "put back in service,"
one could be led to believe tlw t the respondent in this instance
totally disregarded any safety considerations after the bare spot was
discovered, and deliberately placed an unsafe piece of equipment back
into operation running coal. However, this is not the case. Although
the inspector's testimoriy was somewhat misleading and confusing on
this point, it is now clear from the record that the car in quesiion
was operated and moved back out of the way some 50 feet in order to
facilitate its movement out of the area so that it could be examined
to ascertain the cause of the shock incident (Tr. 176-180). Under
these circumstances, I conclude that under the then prevailing conditions, the respondent acted reasonably and I cannot conclude that
there was any reckless or deliberate disregard for safety.
BaE·~d -on the total circumstances which prevailed and in light of
the foregoing discussion, I cannot conclude that the evidence supports
a finding that the respondent was negligent in failing to discover the
somewhat miniscule bare spot on the cable reel.

Gravity
It seems clear from the record that the shock incident in question
resulted in an injury to a miner. Fortunately, the incident did not
result in a fatality, but it did cause some trauma to the individual
involved and he was taken to a hospital. The inspector indicated that
no "lost time" was recorded, but that conclusion remains unexplained,
and there was no testimony concerning the actual injuries, sustained·
by the shock victim. However, the bare spot on the reel was hazardous
and could have resulted in further serious injuries had it gone
undetected. In the circumstances, I conclude that the condition cited
was serious.
During the course of the hearing, respondent's counsel alluded
to the fact that during the initial assessment of this citation, a
clerical error apparently occurred in that a "gravity sheet" pertaining to another citation somehow found its way into the official file
for the instant citation (Tr. 158). I have taken this into account
and have assessed the matter de novo based on the testimony and evidence presented by the parties at the hearing.
Good Faith Compliance
I find that the respondent abated the condition in a timely
fashion after the citation issued.

1668

Findings and Conclusions
Docket No. VINC 79-111-P
Citation No. 278095--Fact of Violation
Respondent is charged with a violation of 30 CFR 75.200, which
provides:
Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system
of each coal mine and the means and measures to accomplish
such system. Tne roof and ribs of all active underground
roadways, travelways, and working places shall be supported
or otherwise controlled adequately to protect persons from
falls of the roof or ribs. A roof control plan and revisions thereof suitable to the roof conditions and mining
system of each coal mine and approved by the Secretary
shall be adopted and set out in printed form on or before
May 29, 1970. The plan shall show the type of support and
spacing approved by the Secretary. Such plan shall be
reviewed periodically, at least every 6 months by the Secretary, taking into consideration any falls of roof or ribs
or inadequacy of support of roof or ribs. No person shall
proceed beyond the last permanent support unless adequate
temporary support is provided or unless such temporary support is not required under the approved roof control plan
and the absence of such support will not pose a hazard to
the miners. A copy of the plan shall be furnished to the
Secretary or his authorized representative and shall be
available to the miners and their representatives.
The approved roof-control plan of April 25, 1978, for the Meigs
No. 2 Mine (Exh. R-1), contains, in pertain part, the following
requirements listed under "Safety Precautions for Temporary Support,"
page 8, paragraphs 2 and 8:

*

*
*
*
*
*
* * * the installation of temporary supports

*

2.
shall be started no later than 15 minutes after the loading cycle is completed, and after the installation of
such supports is started, installation shall be continued
until at least the minimum number are installed as
required by the approved plan.

*

*

*

*

*

*

8. In areas where temporary supports are required,
only those persons engaged in installing the temporary

1669

*

supporti will be allowed to proceed beyond the permanetly
supported roof.
Before any person proceeds inby permanently supported
roof to install temporary supports, a thorough visual
examination of the unsupported roof and ribs shall be
made. If the visual examination does not disclose any
hazardous condition, persons proceeding inby permanent
supports shall do so with caution and shall test the roof
by the sound and vibration method as they advance into the
area.
The applicable roof-control provision (p. 8, paragraph 2, Exh.
R-1) requires that the installation of temporary supports be started
no later than 15 minutes after the loading cycle is completed. Once
started, the installation of such temporary supports shall be continued until at least the minimum number are installed as required by
the plan. From the inspector's point of view, the gist of the violation is that after observing an area of unsupported roof, he looked
into the next entry, observed that approximately two-thirds of the
entry had been loaded out, and he surmized that the loading process
there took r.iore than 15 minutes. He therefore assumed that the mining
cycle had advanced from the previous cut without the installation of
the required temporary roof support (Tr. 214). No temporary supports
were installed, and a loading crew had cleaned up a place, moved into
another area where two-thirds of the cut had been loaded out, and no
temporary supports had been set in the previous cut that had just been
left. The inspector supported his findings by notes and a sketch of
the area made at the time of the citation, and he spoke with the loading crew at the scene.
In its posthearing proposed findings and conclusions concerning
this citation, respondent advances the defense that two-thirds of
a cut can be loaded out within 15 mi.nutes, and that by failing to
remain at the location in question or initially observing the conditions at the location and returning at least 15 minutes later, the
inspector had no basis for concluding that the applicable roof-control
provision was violated. This assertion by the respondent is rejected,
and I find that the petitioner has established a violation by a preponderance of the evidence. On the facts presented here, the fact
that a place can generally be loaded out in 15 minutes or less is not
persuasive since the conditions which prevailed at the time of the
citation control, and I conclude that respondent has not rebutted the
fact that more than 15 minutes had elapsed from the completion of the
loading cycle. As correctly pointed out by the petitioner, Mr. Carte
was not present at the time of the citation, and I find the inspector's
testimony in support of the citation and the prevailing conditions at
the time it was issued to be credible. I find that the preponderance
of the evidence adduced supports a finding of a violation as charged.
Failure to comply with a provision of the roof-control plan here

1670

constitutes a violation of section 75.200. Peabody Coal Company,
8 IBMA 121 (1977); Affinity Mining Co~1pany, 6 IB"MA 100 (1976);
Dixie Fuel Company, Grays Knob Coal Company, 7 IBMA 71 (1976).
The citation is AFFIRMED.
Good Faith Compliance
The inspector confirmed that abatement was achieved immediately,
and that the respondent "got right on it and put the temporary supports up" (Tr. 215). I find respondent acted in good faith in
abating the citation.

The inspector stated that the lack of temporary roof support
left an unsupported area of some 18 feet wide and 10 feet deep, and
that someone could have "unconsciously" walked through that area
believing that the roof was bolted and in so doing they would in fact
be under unsupported roof (Tr. 193). 1 find that the lack of roof
support presented a hazard of a possible roof fall and that the condition cited was serious.
Negligence
I find and conclude that the respondent failed to exercise reasonable ~are to insure that the roof area in question was adequately
supported in accordance with its own approved plan. Its failure to
do so, either through a thorough preshift or onshift examination,
constitutes ordinary negligence.
Findings and Conclusions
Docket No. VINC 79-141-P
Citation No. 279989--Fact of Violation
Respondent is charged with a violation of 30 CFR 75.1710-l(a)(4),
which provides:
(a) Except as provided in paragraph (f) of this
section, all self-propelled electric face equipment,
including shuttle cars, which is employed .in the active
workings of each underground coal mine on and after
January 1, 1973, shall, in accordance with the schedule
of time specified in subparagraphs (1), (2), (3), (4),
(5), and (6) of this paragraph (a), be equipped with
substantially constructed canopies or cabs, located and
installed in such a manner that when the operator is at
the operating controls of such equipment he shall be
protected from falls of roof, face, or rib, or from rib

1671

and face rolls. The requirements of this paragraph (a)
shall be met as follows:

*

*

*

*

*

*

(4) On and after July 1, 1975, in coal mines having
mining heights of 36 inches or more, but less than
48 inc hes;

*

In defense of the citation, respondent argues that there is no
requirement that cabs or canopies be installed on self-propelled electric face equipment where the mining heights are less than 30 inches
(actual height from bottom to top less than 42 inches). In support of
this assertion, respondent cited Exhibit R-2, an MSIIA meraorandum dated
January 24, 1979, which explains and supplements MSHA's enforcement
policy concerning the use of cabs and canopies as previously detailed
in a prior memorandum issued on July 11, 1977 (Exh. R-2). The 1979
memorandum contains detailed instructions concerning the testing of
equipment underground, and the monitoring of such tests by MSHA to
determine whether an operator has in fact acted in good faith in complying wlth the requirements of installing canopies on underground
equipmer.t, .and whether such efforts would warrant the granting of
extensions on citations issued for noncompliance. Paragraph 3 of
the memorandum states in pertinent part as follows:
To reduce the repeated issuance and termination of
citations on self-propelled electric face equipment operated without canopies in rnfnes which experience frequent
changes in the mining height (measured from the mine floor
to the mine roof) below 42 inches, the following policy is
established.
Where the mining height fluctuates below and above
42 inches, a citation for a violation of Section 75.1710-1,
30 CFR 75, shall not be issued when such fluctuations
below 42 inches would routinely create the necessity to
remove cabs or canopies. An evaluation of the mining
height shall be made periodically, not less than two times
a year, to determine if such fluctuations still exist.
These evaluations should normally be made as a part of a
mandated complete mine inspection.
This policy is not applicable where the mining height
does not frequently fall below 42 inches.
Although Inspector Petit testified that he took measurements to
substantiate his conclusions that the average mining height was 48 to
50 inches, he could not state where those measurements were taken.
He indicated that his notes did not reflect that he took any measurements at all, or where they may have been taken. When asked whether
he remembered taking any notes, he responded "Yes. I wouldn't have

1672

issued a cit~tion unless I had have, even though I didn't have to
because the front canopy is not supposed to be removed" (Tr. 220).
He also stated that the front canopy was not to be removed even if
the mine height is less than 42 inches (Tr. 220). And, he conceded
that the operator had previously come through "very low coal" and
that the mining height in the 006 section fluctuated (Tr. 221, 245).
He also testified that any measurements he may have taken were
restricted to an area inby the section dumping point and this was
because he believed that was the only place where the bolter would be
operating (Tr. 245). However, he conceded that it was possible that
it had been used in other low areas, which necessitated that the
canopy be taken off, and that someone forgot to put it back on (Tr.
245). When asked whether he measured the specific location where he
found the roof bolter energized, he answered "Yes." However, when
asked to describe the area, he answered "I don't recall" (Tr. 245).
And, although he indicated that he never measured anyting on the
section below 48•inches and that "it fluctuated 1+6, 47, 48, 49," he
also indicated that he never measured a place below 42 inches on the
section, but he could not recall how many time he measured, did not
know the distance from the section dumping point to the face area,
speculated that it may have possibly been 500 feet, and could not
remember how much of that distance he measured (Tr. 247).
Cutting across this entire episode with respect to the citation
concerning the lack of a front canopy on the roof-bolting machine in
question is a prior proceeding involvi.ne these very sa1:ie parties. The
prior proceeding concerned a petition for modification filed by ti~
respondent pursuant to section 30l(c) of the 1969 Act. The petition
sought a modification of the canopy requirements of 30 CFR 75.1710-l(a)
for the Meigs No. 1 and No. 2 Mines and the Raccoon No. 3 Mine. My
decision in that proceeding was issued on October 29, 1976, Southern
Ohio Coal Company_ v. MESA, et al., Docket No. M 76-349; On appeal, my
decision was affirmed, with certain modifications, by the former
Interior Board of Mine Operations Appeals, 7 IBMA 331 (1977). I have
reviewed my prior decision and the IBMA decision, and aside from the
fact that the inspector touched on it during the course of the hearing when he alluded to the fact that the respondent had obtained some
reiief from the requirements of the standard in mining heights of
56 inches, the parties have offered no further arguments in this
regard. Further, I see nothing in those prior proceedings that would
permit the respondent to operate the roof bolter in question without
a canopy assuming that the petitioner has established through credible
evidence that the mining heights were more than the required 42 inches.
The burden of proof in this instance lies with the petitioner.
Petitioner must establish that the average mining heights where the
roof bolter was operating was more than 42 inches. If the petitioner
can establish that fact, then I believe it has established a violation. However, based on the evidence presented, namely, the testimony
of the inspector who issued the citation, I cannot concl~de that the

1673

petitioner has established a case. I find the testimony of the
inspector to be confusing and contradictory with respect to the key
question concerning the operational mining height in the section where
the roof bolter was operating. He failed to take detailed notes or
otherwise establish as a matter of fact that the mining heights were
such as required the use of a canopy. Based on a close scrutiny of
his testimony, I conclude that he made only a cursory evaluation of
the situation and failed to establish a true average of the mining
heights on the section. I find and conclude that petitioner has
failed to establish a violation by a preponderance of the evidence
and the citation is VACATED.
Findings 8nd Conclusions
Docket No. VINC 79-112-P
Citation No. 279997--Fact of Violation
Respondent is charged with a violation of 30 CFR 75.402, which
states:
All underground areas of a <.:oal mine, except those
areas in which the dust is too wet or too high in incombustible content to propagate an explosion, shall be rock
dusted to with:Ln L10 feet of all working faces, unless
such areas are inaccessible or unsafe to enter or unless
the Secretary or his authorized representative permits an
exception upon his finding that such exception will not
pose a hazard to the miners. All crosscuts that are less
than 40 feet from a wqrking face shall also be rock
dusted.
Respondent's "policy and procedure" cleanup program dated June 1,
1974, is set out in Exhibit R-1, and the applicable provisions of that
plan are paragraphs 8 and 10 which provide:
After a thorough clean-up the section will be
blanket dusted when the section is advanced or before
the end of your regular shift.
All areas from feeder inby will be cleaned up and
dusted before end of regular shift.
Respondent's defense is that its plan fixes no time-frame for
the completion of rockdusting, it permits rock dusting as the section
advances or by the end of the shift, and that time did not permit rock
dusting at the time the conditions were observed by the inspector
(Tr. 259-260). Mr. Carte's testimony in defense of the citation
reflects that he was not present at the time the inspector observed
the conditions, he had not observed the conditions during the prior

1674

shift, and he·indicated that the section bosses in charge of the section, including the foremen, were unaware of their own cleanup plan
(Tr. 262). Respondent's additional defenses, as articulated in its
posthearing proposed findings and conclusions, focus on the provisions of 30 CFR 400-2, which deals with cleanup programs dealing with
cleanup and removal of accumulations of coal and coal dust, and I fail
to understand the relevance of that provision to the facts presented
here. Respondent is not charged with failure to clean up coal accumulations; it is charged with a failure to rock dust as required by
section 75.402. With regard to respondent's assertion that the petitioner failed to establish that the last open crosscut between the
Nos. 4 and 5 entries were within 40 feet from a working face, the
inspector specifically stated that he observed no rock dust applied
to the last open crosscut between those entries, that the crosscut
extended some 60 feet, and that he observed no rock dust in any of
the other entries or crosscuts (Tr. 249). In the circumstances, I
find that the testimony of the inspector concerning his observation
of the area cited supports a finding that rock dust had not been
applied to the ribs, roof and floor in the area described by the
inspector in his citation, and the respondent's evidence and testimony has not rebutted this fac. t. The citation is AFFIRMED.
Good Faith Compliance
The inspector testified that abatement was achieved immediately
and that the respondent "shut the whole section down and immediately
got on it." Although abatement took an hour, it was suggested that
other work had to be done first, and whlle the inspector believed
that the necessary rock dusting could have done in less than an hour
and speculated that the reason it was not was the fact no rock dust
was available, he really did not know that this was in fact the case
(Tr. 252-263). He remained on the section and observed the rock
dusting operation taking place to achieve compliance, and since he
believed that the respondent "got right on it," I conclude and find
that abatement was achieved through rapid conpliance, and that the
respondent acted in good faith in this regard.
Gravity
Although the inspector believed that there was a fire hazard
presented by the lack of rock dust (Tr. 251), he could not support
that conclusion and there is nothing of record _to indicate why he
believed this was the case. Further, he specifically stated that the
mine in question is "blessed" because of the absence of methane, and
while he alluded to the fact that a fire could occur in the event of
a cable short, there is no indication of the presence of damaged
cables or nonpermissible equipment operating in the area (Tr. 256257). In short, I cannot conclude that the record supports a finding of any threat of fire, and I cannot conclude that the circumstances presented were serious.

1675

Negligence
The inspector stated that his "inspector's statement" reflects
that the conditions cited "should have been detected through a proper
preshift and onshift examination" of the section, and that the conditions cited "had to exist at the end of the prior shift," but he
could not remember whether he checked the preshift books, and his
notes apparently did not reflect that he did (Tr. 251). Although
Mr. Carte indicated that the section bosses and foreman were not
aware of their own· cleanup plan, that is no excuse. I find it rather
incredible that such supervisory personnel, who are responsible for
the safety of their crews, are unaware of the company's own cleanup
plan. I can understand someone misinterpreting a particular plan,
but cannot understand someone in a responsible supervisory position
being completely obll.vious of a cleanup plan. I find that the respondent failed to exercise reasonable care to insure that its plan was
followed and that such failure constitutes ordinary negligence.
Findings and Conclusions
Docket No. VINC 79-114-P
Citation No. 277726--Fact of Violation
Respondent is charged with a violation of 30 CFR 75.1405, which
provides:
All haulage equipment acquired by an operator of a
coal mine on or after March 30, 1971, shall be equipped
with automatic couplers which couple by impact and
uncouple without the necessity of persons going between
the ends of such equipment. All haulage equipment without automatic couplers in use in a mine on March 30,
1970, shall also be so equipped within 4 years after
March 30, 1970.
30 CFR 75.1405-1 provides: "The requirement of§ 75.1405 with
respect to automatic couplers applies only to track haulage cars which
are regularly coupled and uncoupled."
In its arguments presented at the hearing, and detailed in its
proposed findings and conclusions, respondent asserts that the citation should be dismissed because section 75.1405 does not apply to
the surface work area of an underground mine. In support of this
argument, respondent contends that the supply yard for the Raccoon
No. 3 Mine where the cars were located constituted a surface work area
of an underground mine and was therefore subject to the requirements
of Part 77, Title 30, Code of Federal Regulations, which contain mandatory safety standardS-·7£0r-bituminous, anthracite, and lignite
surface coal mines, including open pit and auger mines, and to the

1676

surfc'.!ce work areas of underground coal mines, * * * " 30 CFR 77.1.
Since there is no comparable standard requiring automatic coupling
devices for stone haulage cars while located on surface work areas,
respondent contends that petitioner has failed to establish a prima
facie case and that the citation should be dismissed.
A second defense argued by the respondent is that assuming that
section 75.1405 does apply to the,cars in question, petitioner has
not established they are regularly coupled and uncoupled are stated
in section 75.1405-1. Respondent contends that the subject haulage
cars are used sporadically, rather than regularly, and therefore,
section 75.1405 does not apply. In support of this argument, respondent relies on the testimony of surface foreman Mapper and Mr. Carte.
Respondent does not dispute the fact that the cars in question
are taken underground by means of the regular mine track haulage
system which goes in and out of the underground areas of the mine,
nor does it dispute the fact that the cars in question were used
underground in loading out materials resulting from the "shooting-out"
of overcasts (Tr. 286-299, 293). As for the frequency' of use of the
cars in question, Hr. Mapper confirmed that they are used in connection with the shooting of overcasts, and that this is done once a
month over a period of 3 or 4 days (Tr. 293).
On the day the citation issued, the inspector observed a train
six such cars, including the two with defective coupling devices,
and they were all loaded with rock obviously taken from the mine and
awaiting transportation to the rock dumping area. Under the circumstances, I conclude and find that the cars in question are regularly
used within the meaning of the cited standard. I believe it is reasonable to conclude that the shooting of overcasts underground is an
important and ongoing underground mining activity essential to the
production of coal, and respondent has not established that this is
not the case. That is, respondent does not contend that the shooting
0f overcasts is a onetime or infrequent event. I find that it is an
ongoing and regular incident to the mining of coal which takes place
once a month over a period of 3 or 4 days, and the mining cars in
question are an essential and integral part of those operations. The
fact that the cars in question remain idle during the winter months
is irrelevant. Curtailment of mining activities during the winter
months is not unusual, particularly in the case of track haulage
areas where inclement weather, snow, ice, etc., present practical
and potentially hazardous problems. Respondent's defense that the
cars were not regularly used is rejected.
~f

With regard to the application of section 75.1405 to the cited
rock haulage cars, respondent's assertions that they do not apply in
this case are rejected. It seems clear to me that the mine in question is in fact an underground mine within the meaning of the Act and
the mandatory standards set forth in Part 75 of the regulations. It

1677

is also clear that the track haulage system is an integral part of
that undergrourid mine, that the rock haulage cars were in fact used
underground, and respondent concedes that the storage area where the
cars were located at the time the citation issued was in fact part of
the underground mine. The definition of the term "coal mine" found
in the Act includes the surface storage area in question and it is
clearly within the definitional terms an area of land * * * under or
above the surface * * * used in * * * the work of extracting * * *
coal. I conclude and find that section 7 S. ll+OS is applicable to the
rock- haulage cars in question, and that petitioner has established a
violation. The citation is AFFIRMED.

I find that the conditions cited presented ft real danger of
serious injury or death to miners who may have had to position themselves between the cars to couple and uncouple them. Since the cars
in question were loaded and awaiting transportation at the time the
citation issued, one can reasonably infer that someone had to go
between the cars to couple them. Respondent's own witness, Mapper,
conceded that while the cars could be coupled and uncoupled without
an automatic coupling device, it is a dangerous practice and that one
has to be careful. His own words are "It is best to have automatic
couplers on it" (Tr. 293). In addition, respondent's witness Carte
stated that company policy dictated that automatic couplers be
installed on the rock cars, and one of considerations for this policy
was that "We didn't want to get nobody hurt" (Tr. 305). I find that
the conditions cited were serious.
Negligence
I find that the record supports a finding that the conditions
cited resulted from respondent's failure to take reasonable precautions to insure that the coupling and uncoupling devices were maintained in good working order, and that its failure to do so h~re
constitutes ordinary negligence. Respondent's own witness, Mr. Carte,
confirmed that the rock cars and coupling devices are subjected to
damage "just about everytime they are taken underground" due to normal
wear and tear in the loading process. This being the case, I believe
it is reasonable to expect that more time and attention be given to
the priority inspection, maintenance, and repair of the cars, notwithstanding the shortage of welders or other maintenance personnel.
During the hearing, there was some confusion surrounding the fact
that the actual cars cited by the inspector were not the ones taken
out of service by the respondent and tagged for repair. In addition,
there appeared to be a suggestion by the inspector that the respondent
intended to put the cars back into operation after they were cited,
thus presenting the possibility that the respondent may have been
guilty of recklessness and total disregard for the safety of miners

1678

bordering on gross negligence. After close scrutiny of the testimony
and the explanations given by the witnesses presented by the respondent, I find the testimony on this question to be credible and
plausible, and thus cannot conclude that there was gross negligence in
this case.
Good Faith Compliance
The initial citation in this case was issued on August 29, 1978,
at 1:15 p.m., and the inspector fixed the abatement time as 8 p.m.,
that same day. Upon returning to the mine the next day, August 30,
1978, the inspector observed that neither car had been repaired.
Although one of the cars (No. 8730) had been tagged out, he believed
that the other car (No. 8107), which was not tagged out, had also
been used after he had cited it. This prompted him to issue Order
No. 277727, at 9:40 a.m., taking both cars out of service, and he
noted on the face of the order that "sufficient effort was not made
to abate the condition." The initial Citation No. 277726, was then
terminated less than an hour later on August 30 after repairs were
made to the cars and the coupling and uncoupling devices were
restored to effective operating condition.
Respondent asserts that it acted with due diligence by removing
from operations the two cars respondent believed were the subject of
the initial citation, and that on its own initiative, removed other
cars in need of repair, and acted diligently in making repairs to
those cars. Further, respondent argues that as soon as it discovered
the actual cars to which the inspc~c tor was referring, and since they
were awaiting repairs, it acted in a diligent manner to correct
and abate the conditions cited.
Petitioner's posthearing proposed findings and conclusions contain no further proposals with respect to the question of good faith
compliance. The inspector obviously believed that the initial citation was not abated in good faith since he made a finding that the
respondent was making an insufficient effort to comply and that
prompted him to issue the order taking the equipment out of service.
Once that order issued, there was prompt and immediate compliance.
Based on a close scrutiny of the testimony of the witnesses during
the hearing, it seems clear to me that the parties had a communication
problem as to which cars were required to be taken out of service and
repaired, and I take note of the fact that this seems to be a recurring
problem in cases of this kind. That is, an inspector will cite a condition and leave it up to the respondent to take corrective action.
On the facts presented here, the inspector cited two cars and the
respondent apparently took the wrong car or cars out of service, and
apparently left the defective car or cars on the rail. Respondent's
defense seems to be that there was a shortage of welders, and that
the initial time for abatement was far to short. This is no excuse.

1679

It seems to me that if an operator believes the time fixed for abatement is not reasonable, he should at least attempt to convey this to
the inspector. By the same token, I believe that an inspector has a
duty to listen and not simply walk away for the situation. In short,
the time for resolving these differences is at the time the citation
issues, and not a year later when the case is litigated.
Respondent's assertion in its posthearing proposed findings concerning the extension of the abatement time is irrelevant in this
proceeding. This is a civil penalty proceeding and not a review
proceeding, and the time for abatement is not in issue insofar as
the fact of violation is concerned. However, I have considered the
question as part of my findings concerning the questions of good
faith compliance and negligence.
In light of the foregoing, and based on all of the circumstances,
I cannot conclude that respondent was dilatory or exhibited such a
total lack of good faith or disregard for the law requiring to supporting a substantial increase in the civil penalty assessed for the
citation in quesU.on. Although it is true that respondent had not
completed the repairs on one of the cited cars because of certain
logistic~l problems connected with removing it from the tracks and
transporting it to the repair shop, the other car was apparently misidentified, and the wrong one was tagged out. In any event, I believe
that viewed in perspective, the respondent attempted to comply, and
while its goal fell short of the inspector's expectations that repairs
could have been made within the time originally fixed, I am not
totally convinced that this was not the case.
Findings and Conclusions
Docket No. VINC 79-115-P
Citation No. 277736--Fact of Violation
Respondent is charged with a violation of 30 CFR 75.200, for
failing to install certain temporary roof supports as required by
its approved roof-control plan. The parties stipulated that the
applicable roof-control plan with respect to this citation is the
same one previously discussed with regard to Citation No. 278095
(DocKet No. VINC 79-111-P) (Tr. 335).
Respondent's defense is based on the testimony of Mr. Carte, who
was not present when the citation issued. He contended that the
mining cycle had not as yet been completed when the inspector arrived
on the scene because there was scrap coal that had to be loaded out.
He conceded that had it not been for the presence of that scrap coal,
the cycle would be considered completed. He believed the applicable
roof-control provisions were being followed, and under his interpretation of those procedures, temporary supports need not be installed as

1680

long as scrap coal remains to be removed, because any attempts to set
such temporary supports at the face area while removing scrap coal
introduces another hazard into the process. Although the inspector's
notes did not reflect the presence of any scrap coal, he testified
that had scrap coal been present, this would indicate that the area
had already been drilled. In this case, his unrebutted testimony is
that a face area 7 feet wi_de by 11 feet long was drilled and a cutter
was about to begin cutting with no supports installed. Further,
although the area had previously been reported as roof bolted, the
fact is that it was not completely bolted, and Mr. Carte admitted
this was the case (Tr. 337).
After careful consideration of the testimony presented, I conclude that the respondent has not established that scrap coal was
present and that the mining cycle requiring the installation of
temporary supports had not been completed. To the contrary, I conclude and find that the testimony presented by the inspector in
support of the citation supports the conditions cited and supports a
finding that respondent failed to install the temporary supports
required by its own roof-control plan, and the failure to do so constitutes a violation of section 75.200. The citation is AFFIRMED.
Gravity
The inspector testified that the roof condition was "solid and
good," and although his conclusion that a roof fall was "prohable"
is somewhat illogical in light of the roof conditions, the fact is
that the area and extent of specific unsupported roof at the face
where coal is being cut presents a potential danger and hazard of
a roof fall in that immediate area. Under the circumstances, I find
that the violation is serious.
Good Faith Compliance
Abatement was achieved by the installation of temporary roof
supports as required by the roof-control plan and the plan was
reviewed with the crew (Tr. 328). The citation was terminated and
the· conditions abated within the time fixed by the inspector and I
conclude that the respondent exercised normal compliance in correcting the cited conditions.
Negligence
It is clear that the respondent failed to follow its own roofcontrol plan in this instance, and while there is testimony reflecting that the area was reported bolted, when in fact it was not, I
cannot conclude there is sufficient evidence to support a finding of
gross negligence or a reckless disregard for safety. I have taken
into account the fact that the respondent may have believed that it
was following its plan, but I conclude that a closer examination and

1681

attention to that plan, coupled with the conditions which prevailed
at the time the citation issued, should have alerted respondent to
the fact that the required roof supports were not installed. I find
that respondent failed to exercise reasonable care to prevent the
conditions cited and that this constitutes ordinary negligence.
The following findings and conclusions are applicable to all of
the dockets:
Size of Business ar,d Effect of Civil Penalties on Respondent's Ability
to Remain in Business.
Information developed during the hearing reflects that respondent's Mei'gs No. 1 Mine has a daily coal production of 3,000 tons, and
that the mine operates 2 productions shifts and one maintenance shift,
employing 204 surface employees, and 447 underground employees (Tr. 1617). The Raccoon No. 3 Mine also produces 3,000 tons of coal daily on
three similar shifts, but employs 58 surface employees and 373 underground. Both mines have eight to nine active working sections (Tr.
35). No information was forthcoming with respect to the scope of
respondent's operations at the Meigs No. 2 Hine. However, I believe
the evidence adduced supports the conclusion that the respondent is a
large coal mine operator and that is my finding. Further, absent any
information to the contrary, I conclude that any civil penalties
assessed by me with respect to any proven citations will not adversely
impair the respondent's ability to remain in business.
History of Prior Violations
Respondent's prior history of violations is reflected in three
computer printouts submitted by the petitioner at the hearing (Exh.
P-1) for the Meigs No. 1 and No. 2 Mines, and the Raccoon No. 3 Mine
(Tr~ 6, 26, 35).
The printout for the No. 1 Mine reflects 558 paid
violations amounting to $92,948.20 for the period July 18, 1976 through
July 18, 1978. For the No. 2 Mine, the printout reflects that respondent paid $110,069 for 589 violations covering the period August 15,
1976, through August 15, 1978 •. The printout for the Raccoon No. 3
Mine reflects 454 paid violations totaling $70,281.40, for the period
August 15, 1976, through August 15, 1978. For the time period in
question, the prior history of paid violations reflects that respondent has paid civil penalty assessments for 1,601 violations, approximately 180 of which were for violations of the roof-support provisions
of section 75.200, and some 140 for violations of the permissibility
requirements of section 75.503. Based on this prior 2-year history
of violations, I conclude and find that it constitutes a significant
history of prior paid violations which I have taken into account in
assessing civil penalties in these cases.

1682

ORDERS
Pursuant to 29· CFR 2700.30, settlement is approved for the
following citations, and respondent IS ORDERED to pay civil penalties
in the amounts shown below in satisfaction of the settled citations:
Docket No. VINC 79-111-P
Citation No.

Date

30 CFR Section

Assessment

280459

07 /25/79

75.605

$150

30 CFR Section-

Assessment

Docket No. VINC 79-141-P
Citation No.

Date

7 5. 400
75.ll00-2(£)

07 /25/79
279953
08/03/79
279990
Docket No. VINC 79-112-P

$160
$160

Citation No.

Date

30 CFR Section

Assessment
-----

279961
279964
279973

08/09/78
08/10/78
08/15/78

75.606
75.606
75.606

$122
$140
$ 90

In view of the foregoing findings and conclusions, the following
citation is VACATED, and the proposal for assessment of civil penalty
for this citation is DISMISSED:
Docket No. VINC 79-141-P--Citation'No. 279989, August 2, 1978,
30 CFR 75.1710-l(a)(4).
In view of the foregoing findings and conclusions, affirming the
following citations, including consideration of the six statt·.tory
criteria pursuant to section llO(i) of the Act, civil penalties are
assessed as follows:
Docket No. VINC 79-109-P
Citation No.

Date

30 CFR Section

Assessment

279540

07 /28/78

7 5. 507

$400

30 CFR Section

Assessment

Docket No. VINC 79-148-P
Citation No.

Date

279550

08/02/78

75.1003(a)

1683

$700

Docket No. VINC 79-llO-P
Citation No.

Date

30 CFR Section

Assessment

278046

05/11/78

75.503

$700

Docket No. VINC 79-lll-P
Citation No.

Date

30 CFR Section

Assessment

278095

07 /20/78

75.200

$600

30 CFR Section

Assessment

75.402

$350

Docket No. VINC 79-112-P
Citation No.

Date

08/08/78
279997
Docket No. VINC 79-114-PCitation No.

Date,

30 CFR Section
·-------

Assessment-

277726

08/29/78

75.1405

$975

Docket
- - - -No.
- -VINC
- - - 79-115-P
----Citation No.

Date

30 CFR Sec ti on

Assesswent
---------

277736

09/ 12/78

7 5. 200

$900

------·--··

Respondent IS ORDERED to pay civil penalties, as shown above,
totaling $5,447 within thirty (30) days of the date of these decisions
and orders.

Distribution:
Linda Leasure, Esq., U.S. Department of Labor, Office of the
Regional Solicitor, 888 Federal Office Building, 1240 E. Ninth
Street, Cleveland, OH 44199 (Certified Mail)
David M. Cohen, Esq., American Electric Power Service
Corporation, P.O. Box 700, Lancaster, OH 43130 (Certified Mail)
Standard Distribution

1684

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

,.,.,
q~

'
j

')

~:

r,.

CONSOLIDATION COAL COMPANY,
Applicant

Application for Review

v.

Docket No. PENN 79-75

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

Citation No. 0618570
April 18, 1979
Renton Mine

UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

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

Before:

Judge Merlin
Statement of the Case

This is a proceeding filed under section 105(d) of the Federal
Mine Safety and Health Act of 1977 by Consolidation Coal Company for
review of a citation issued by an inspector of the Mine Safety and
Health Administration (MSHA) under section 104(d)(l) of the Act.
By an amended notice of hearing, this case was set for hearing
on October 10, 1979, in Pittsburgh, Pennsylvania. The notice of
hearing required the filing of preliminary statements. The applicant and MSHA filed preliminary statements, and the case was heard
as scheduled. The applicant and MSHA appeared and presented evidence.
Bench Decision
At the conclusion of the taking of evidence, the parties waived
the filing of written briefs, proposed findings of fact, and conclusions of law. Instead, they agreed to make oral argument and have a

1685

decision rendered from the bench. Upon consideration of all documentary evidence and testimony, and after listening to oral argument,
I rendered the following decision from the bench (Tr. 145-148):
This case is an application for review of a citation
issued under section 104(d)(l) of the Act for a violation
of 30 CFR 75.400.
Section 75.400 prohibits accumulations of coal dust,
float coal dust and loose coal, and other combustible
materials in active workings. Section 75.2(d)(4) defines
"active workings" as any place in a coal mine where miners
are normally required to work or travel. The subject
citation cites accumulations of fine dry coal dust, loose
coal, and float coal dust in several locations.
I will consider the loading ramp first. The inspector testified that accumulations at the ramp were 4 feet
wide, 60 feet long, and 7 inches deep. The operator's
shift foreman admitted accumulations at the ramp were
4 feet wide, 40 to 50 feet long, and 5-1/2 inches deep.
The inspector further testified that the coal at the ramp
was dry, packed tight and not rock dusted. Because the
coal was packed so tight, the inspector believed it had
been there 2 weeks. I accept the inspector's description
of the coal accumulations at the ramp which was the most
detailed description given with respect to the nature of
these accumulations.
Based upon the inspector's testimony, I conclude the
coal had been there for a number of days in violation of
section 75.400, and, most particularly, in violation of
the clean-up plan which requires. that the ramp be shoveled
as spillage occurs and that rock dust be applied at the
end of each shift or more frequently if needed. Moreover,
even the operator's shift foreman believed the coal at the
ramp was left from the prior shift, and the operator's
section foreman specifically admitted the ramp area should
have been checked and cleaned up. Accordingly, even under
the testimony of the operator's own witnesses, there was
a failure to comply with the clean-up plan and meet the
requirements of section 75.400.
In light of the foregoing, I find the accumulations at the ramp constituted a violation.
I further conclude this violation was significant
and substantial. I accept the inspector's testimony
that there were energized trailing cables in the area
and that the nip station was nearby. Also, there was

1686

unwarrantable failure. The operator is charged with
kaowledge of its clean-up plan. Moreover, through
preshift and onshift examinations, the operator should
have known about the accumulations at the ramp and
taken care of them.
Based upon the accumulations at the ramp, the citation must be upheld.
The inspector also cited the operator for accumulations at five 'pillar splits. The determination whether a
violation existed at those locations depends upon whether
they were active workings , that is, places where miners
are normally required to work or travel. This, in turn,
requires a determination regarding credibility, because a
clear conflict exists between the inspector and the operator's witnesses over the nature and character of the
pillar splits. The inspector placed a continuous miner
machine in the area in question. He said that when he
arrived on the scene, men were ready to go to work there ,
and that the area had not been blocked off by posts . On
the other hand, the operator's witnesses asserted that
the area of the five pillar splits had been abandoned,
that the continuous miner machine was not where the
inspector placed it, and that the pillar area had been
blocked off by posts and dangered off by a sign and wire.
After careful consideration of the testimony and the
demeanor of ail the witnesses, I have concluded that the
inspector ' s version should be a~cepted . I note the operator ' s witnesses contradicted each other over how deep the
water was in the splits and how well the coal had been
cleaned up in the splits . I further accept the inspector's
testimony that the coal in the splits was left over from
mining and was not from sloughing and that this coal was
dry.
In light of the foregoing, I find a violation of
section 75.400 existed in the five pillar splits as
active workings in the manner testified to by the
inspector . I further accept the inspector ' s testimony
that there were trailing cables in the area which constituted potential ignition sources. On this bas i s , I
conclude that the violation in the pillar splits was
significant and substantial. Clearly, the operator
should have known of these conditions through pr_e.shift
and onshift examinations. Therefore , unwarrantab l e
failur-;-on the part of the operator was present .
Accordingly, the citation in all i ts respects is
uphel d .

1687

~
~C

ORDER
The bench decision is hereby AFFIRMED. Accordingly, it is
ORDERED that Citation No. 0618570 be UPHELD and that the operator's
application for review be DISMISSED.

~~\~

Paul Merlin
Assistant Chief Administrative Law Judge

Distribution:
Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480, Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Joyce A. Hanula, Legal Assistant, United Mine Workers of
America, 900 15th Street, NW., Washington, DC 20005
(Certified Mail)
Administrator, Coal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

1688

FEDERAL MINE SAFETY AND HEALTH REVIEW COMr'11SS&ON
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRG !NIA 22203

CONSOLIDATION COAL COMP ANY,
Applicant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Application for Review
Docket No. PENN 79-72-R
Order No. 0622333
June 8, 1979
Renton Mine

UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

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

Before:

Judge Merlin
Statement of the Case

This is a proceeding filed under section 107(e) of the Federal
Mine Safety and Health Act of 1977 by'~Consolidation Coal Company to
review an order of withdrawal issued by an inspector of the Mine
Safety and Health Administration (MSHA) under section 107(a) of the
Act for imminent danger.
By amended notice of hearing, this case was set for hearing on
October 10, 1979, in Pittsburgh, Pennsylvania. The notice of hearing
required the filing of preliminary statements. The applicant and
MSHA filed preliminary statements, and the case was heard as
scheduled. The applicant and MSHA appeared and presented evidence.

1689

Applicable Statute
Section 107(a) of the Act provides:
If, upon any inspection or investigation of a coal
or other mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent
danger exists, such representative shall determine the
extent of the area of such mine throughout which the
danger exists, and issue an order re~uiring the operator
of such mine to cause all persons, except those referred
to in section 104(c), to be withdrawn from, and to be
pFohibited 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 unde~ section 104 or
the proposing of a penalty under section 110.
Bench Decision
At the conclusion of the taking of evidence, the parties waived
the filing of written briefs, proposed findings of fact, and conclusions of law. Instead, they agreed to make oral argument and have
a decision rendered from the bench. Upon consideration of all
documentary evidence and testimony, and after listening to oral
argument, I rendered the following decision from the bench (Tr. 123126).
This case is an application.~ for review of a withdrawal
order for imminent danger. Imminent danger is defined in
the Act as the existence of any condition or practice in a
coal or other mine ~1ich could reasonably be expected to
JSe death or serious physical harm before such condition
or practice can be abated.
The evidence shows there was loose and scaly roof in
the track haulageway. According to the inspector, the roof
had cracks and there were two or three places he saw where
rocks had fallen out. The inspector said the fallen rock
could have been there for a few hours or a few days. He
testified that he believed an imminent danger existed
because there was so much of it,.!.·~·· such a large area
was involved.
The extent of the area involved is, however, not a sole
basis for a finding of imminent danger. What is crucial

1690

is the time element, that is, that the condition cannot
be abated before the reasonable expectation o~ death or
serious physical harm. In other words, the nature of the
peril posed is the relevant inquiry. Accordingly, based
upon the inspector's own testimony, a finding of imminent
danger must be vacated.
In addition, however, the testimony of the operator's
witnesses further demonstrates that an imminent danger did
not exist. The operator's safety escort expressed the
view that the roof was not going to come down immediately
and that places where the roof could be scaled could be
taken care of before they fell. So, too, the mine superintendent stated that the roof did not look like it would
fall out right away, and the mine foreman said that it is
a rare occurrence for rock such as this to fall out
spontaneously and that usually it falls because it is
pried out. The mine foreman also testified that the
two or three pieces of fallen rock the inspector saw came
from rock intentionally pried out by men the foreman had
working in the area. I accept the foregoing testimony of
the operator's witnesses. In this connection I particularly note that the day the inspector issued the subject
order was only the second time he had been in the mine,
whereas the operator's witnesses possessed a far greater
familiarity with the area and with the roof.
The Solicitor int~oduced evidence regarding a roof
fall and accident in the area, which occurred three days
before the subject order was i~sued. I do not find
evidence of the prior fall persuasive regarding the
existence of an imminent danger here, because in the prior
instance a locomotive had knockeft out roof supports,
causing the fall, a situation not presented in this case.
However, the evidence regarding the prior fall is interesting because the operator's witnesses testified without
contradiction that many MSHA experts, including roof
control experts, were present in the subject area to
investigate the roof fall and accident, but did not cite
the roof as deficient in any respect, although as the
operator's mine superintendent pointed out, they would
have done so had anything been out of order.
In addition, uncontradicted evidence from all the
operator's witnesses indicating that after the withdrawal
order was issued, the subject area was traveled many times
by the inspector and the operator's personnel militates

1691

against a finding of imminent danger. If the inspector
really believed an imminent danger existed, I do not think
he would have walked the area or allowed the operator's
people to walk it so many times. In this connection also
I note the undisputed testimony from the operator's
witnesses that the inspector first stated he would issue a
withdrawal order for unwarrantable failure. When told by
the mine superintendent that this could not possibly be
correct,
b~cause the area had just been worked on after
the recent accident, he then changed the order to one for
imminent danger.
I cannot overlook any of these circumstances, and all
of them indicate to me that an imminent danger did not
exist.
According to the evidence, the subject area was mined
20 or 30 years ago. Moisture conditions, particularly in
the summer, cause flaking and scaling. Continual vigilence
on the part of the operator is therefore, called for. I am
mindful that roof falls are serious and that as the former
Board of Mine Operations Appeals of the Department of
Interior stated in Zeigler Coal Company 2 IBMA at 220, they
constitute a principal cause of serious injury in the mines.
Roof conditions are consequently not to be taken lightly.
However, every roof condition is not an imminent danger.
Here the overwhelming evidence demonstrates that an imminent
danger did not exist.
The order is therefore, vacated.
ORDER
The bench decision is hereby AFFIRMED. Accordingly, it is
ORDERED that Order No. 0622333 be VACATED and that the operator's
application for review be GRANTED .

.CV~~

Paul Merlin
Assistant Chief Administrative Law Judge

1692

FEDERAL MINE SAFETY AND HEALTH REVIEW COl\Ut11SSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

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

Civil Penalty Proceeding
Docket No. CENT 79-13-M
A.C. No. 23-00254-05001F
Ava Quarry

WELTON GRAVEL AND LIMESTONE
COMPANY,
Respondent
DECISION AND ORDER
APPROVING
SETTLEMENT OF CIVIL PENALTY PROCEEDING
Appearances:

Robert S. Bass, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
J.ames E. Curry, Esq., Ava, Missouri, for
Respondent.

Before:

Administrative Law Judge Michels

The above-captioned civil penalty proceeding was brought pursuant
to section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 820(a). The petition for assessment of civil penalties
was filed by the Mine Safety and Health Administration on April 3,
1979, and Respondent filed a timely answer thereafter. A hearing was
held on September 5, 1979, in Kansas City, Missouri, at which both
parties were represented by counsel.
At the beginning of the hearing, counsel for Petitioner moved
for the court to approve a settlement for the two violations which
are docketed in this case. !/ As grounds for the proposed settlement,
counsel stated the following:
1/ Exhibit "A" of the petition for assessment of civil penalties
listed six other alleged violations besides the two involved in this
case. At the hearing, Petitioner advised that these other violations
had been settled at the assessment conference level. Thus, the petition had been incorrect in so listing these (Tr. 3-4).

l,693

MR. BASS: The penalty proposed for 191425(d) was
$3,000.00. The parties have reached an agreement in which
Respondent agrees to pay $1,500.00 for that violation. The
proposed penalty for 191425(g) is $5,000.00. The Respondent has agreed, and I've accepted their offer of, to pay
$3,000.00. Both of these violations came under a general
classification of electrical violations.
The violation in 191425(d) is a violation of
30 C.F.R. 56.12-8; and that specific standard requires
that power cables, going into metal boxes and other
enclosures, have bushings or fittings, some kind of
insulation around the particular conduit; [and] in this
case [the cable] did not have a, I think it's referred
to as a squeeze connector or a bushing around it.
Part of the insulation around the live cable came
in contact with the metal box, starter box, on a conveyer
and thereby energized the conveyer, the framework around
the conveyer.
That particular violation, as I said, we have
agreed to settle for $1,500.00. It's the opinion of
the mine inspector, Ernest Scott, that the particular
violation was the result of the ordinary negligence of
the Respondent; and that it was not nearly as directly
related to the fatality in the case as the other
violation.
One of the other reasons that we've, that I've
agreed to accept less than the full amount for this
violation is that the Office of Assessments, who I
personally consulted yesterday, had not given any
credit at all to Respondent for good faith in his
abatement of the violation.
It has, it's brought out in the file that--and I
believe Your Honor has a copy of the prehearing response
filed by Mr. Curry*** it's brought out in there that
innnediately after the withdrawal order was issued to
Respondent, Respondent caused the plant to be shut down
for a period of approximately two months, during which
time Respondent expended around $22,000.00 to have the
entire plant rewired. Mr. Scott personally went back to
the plant and viewed what had been done; and he can confirm that their steps were far and above that which was
required to abate the violation. They could have very
easily have done it for a very small outlay of money;
but instead they chose to really reshape the plant up,
converted from their diesel power generator to utility

1694

power; and they changed the method. I think they went
from a three-phase Y to [a corner crowned delta system.]
* * * I confirmed with him [Mr. Scott] this morning that
the plant is in excellent shape from an electrical
standpoint; and Mr. Scott is an electrician.
One of the other factors we consider [in] mitigation
is the prior history. Mr. Welton [Respondent's owner] has
not been cited for any violations of the Act prior to
this order. Specifically, he has been inspected on
several occasions, by employees of what used to be MESA,
under the Department of Interior; and never has an electrical violation been pointed out to him concerning, that
concern the starter box or the grounding requirements at
his plant.
So we believe those factors, together with the fact
that the Office of Assessment didn't properly evaluate
good faith, lend credence to a lesser penalty than was
originally proposed. We both believe, all the parties
believe, that this would effectuate the purposes of the
Act. Mr. Welton has come into compliance with the
mandatory standards and has demonstrated some very,
very good faith in his abatement requirement, abatement
procedures; and I believe that the public interest would
be served by accepting a $1,500.00 penalty for this
violation.
With respect to 191425(g), which is a violation of
30 C.F.R. 56.12-25, that standard requires that the, that
electrical equipment, or systems such as the one in this
case, be grounded. Now, Mr. Welton had a type of grounding system in effect when the acoident occurred. That
[system] is no longer approved by MSHA. It had been
inspected prior, on previous occasions by MESA; and * * *
there had never been any indication there was anything
wrong with it. It consisted of having a lead wire coming
off the framework of the generator and attached to a
coal-metal pipe driven into the ground.
Now, in this particular case, that system didn't
prove to be effective because there, the framework of the
side conveyer did become energized and an employee was
electrocuted when he came into contact with it.
It's Mr. Scott's opinion that this violation was far
more severe than the other violation. Consequently, the
higher penalty that was proposed. The parties agreed that
the degree of negligence in this particular case was
greater than ordinary negligence. However, there are

1695

mitigating circumstances, as I've already outlined. He
had been inspected before by officials at MESA; and this
system had been approved.
It's our opinion that this indicates that it wasn't
a willful negligence on the part of Mr. Welton to do
anything, that the system is no longer approved. They are
not disputing that there's a violation; but we don't
believe the degree of negligence goes so far as to be a
willful conduct on his part.
We also believe that the element of good faith was
not properly evaluated, as I've previously outlined. The
company did spend a great deal of time and a great amount
of money to get things in shape to protect its employees
in the future; and we'd also submit that the gravity is
not -- even though there was a fatality in this case -Mr. Scott would support me in this, that * * * it was
almost like a fluke accident, this wire that came in contact with the frame, with the box, that caused the frame
to be energized.
When he came out the next day, it wasn't in contact
with it any more. It was just a fluke accident that
caused -- due to the vibration of the equipment -- caused
it to make contact, an arc, that the condition Gould have
existed for a long period of time and no injury have
occurred. As a matter of fact, employees have been
climbing all over this piece of equipment during the same
day that the employee, who was killed, suffered his fatal
inJuries. So it was merely an unfortunate fortuitous
event that the wire contacted the metal box the particular
time the employee started to step up onto the framework.
It's our opinion that payment of the $3,000.00
penalty is in the public interest and that with respect
to both of these violations, we would submit that [consideration should be given to the financial condition
of the company.] Mr. Welton is the sole proprietor. He
operates the Ava Quarry and another small quarry, both of
which qualify as the smallest operations that the Act
recognizes.
His profit for the past year was very low and payll}ent
of the full $8,000.00 for these two cases wouid amount to
about 80 or 90 percent of his profit for the past year;
and due to his financial condition, and the other factors
I've outlined, we believe that the settlement is in the

1696

public interest and will effectuate the purposes of the
Act; and we would request that you approve it.
(Tr. 4-10).
Following this, Respondent's counsel elaborated on the company's
financial condition:

MR. CURRY: May I? I want to commend Mr. Bass for
his very fair statement of the facts, as I understand
them. I would go one step further with respect to something about the company.
As Mr. Bass indicated, the company is a sole
proprietorship, owned solely by Mr. Welton, who, some
two y~ars ago, purchased the interest of a deceased
partner. Up until that time, this business had been
operated as a partnership. He went into considerable
debt at that time in order to accomplish the take-over
of a business; and just before the hearing today, in
that connection, I asked him if he could tell me what
his debts were at this time.
I thought it might have some bearing on this matter;
and he tells me that he now owes C.I.T. in the neighborhood of $100,000.00. He owes the Citizen Bank at Ava
approximately -- these are not exact figures -$40,000.00; and, then, Production Credit Association, he
owes the sum of $300,000.00.
Now, that last item is not in connection with this
business. He has a farm and -- which his wife operates
and that last item was in connec~ion with the operation
of the farm.
This business is a seasonal business in that the
chief customer of Welton Gravel is the State of Missouri,
purchasing aggregate chips and gravel and crushed stone
for the construction of the system of state highways in
Missouri and down in that area. Those purchases are made
on a bid basis. Mr. Welton has to bid against other
gravel contractors to secure these jobs.
Now, the reason I mention that at this time, Your
Honor, is the fact that there are no bid lettings in the
offing in Missouri at this time, for the balance of this
year; and possibly for most of next year.
(Tr. 10-11).

1697

After considering the parties' representations, the following
decision was delivered from the bench approving the proposed
settlement:
THE COURT: Well, thank you very much, gentlemen,
for the clear and comprehensive recitation of all the
significant elements. I agree that the settlement
arrived at here is wholly appropriate. As I understand
it, and I'll just restate it for the record, the parties
have agreed -- and you may affirm after I finish -- have
agreed that in the case of 191425(d), in which case an
assessment of $3,000.00 was originally levied, to settle
for the sum of $1,500.00; and in the case of 191425(g),
which was originally assessed at $5,000.00, the parties
have agreed to settle for $3,000.00; and for the reasons
stated by the parties on this record, I accept that
settlement and those sums as being appropriate.
(Tr. 12).
This decision is hereby AFFIRMED.
ORDER
It is ordered that Respondent pay the agreed-upon penalties
of $4,500 within 60 days of the date of this decision. 2/

c/~P.~
Franklin P. Michels
Administrative Law Judge
Distribution:
Robert S. Bass, Esq., Offi.ce of the Solicitor, U.S.
Department of Labor, 911 Walnut Street, Room 2106,
Kansas City, MO 64106 (Certified Mail)
James E. Curry, Esq., P.O. Box 728, Ava, MO 65608
(Certified Mail)
2/ This time period was requested by the parties at the hearing
(Tr. 12-13).

1698

FEDERAL MINE SAFETY AND Hi£ALTH RIEVBEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRG !NIA 22203

OCT 2 6 19~

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

Civil Penalty Proceedings
Docket No. WILK 79-41-PM
30-00591-05003
Docket No. WILK 79-72-PM
30-00591-05001

ST. JOE ZINC COMPANY,
Respondent

Docket No. WILK 79-73-PM
30-00591-05002
Balmat 4/:2 Mine
Docket No. WILK 79-74-PM
30-01184-05001
Balmat 4fa3 Mine
Docket No. WILK 79-75-PM
30-01688-05001
Hyatt Property
Docket No. WILK 79-76-PM
30-00591-05001
Edwards Mine & Mill

DECISION
Appearances:

Anthony C. Ginetto and Deborah B. Fogarty, Esqs.,
Office of the Solicitor, U.S. Department of Labor,
for Petitioner;
Sanders D. Heller, Esq., Gouverneur, New York, for
Respondent.

Before:

Administrative Law Judge Michels

These proceedings were brought pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a). The

1699

petitions for.asessment of civil penalties were filed by the Mine
Safety and Health Administration on December 7, 1978, and January 18,
1979; timely answers were filed thereafter by Respondent. A hearing
was held on September. 18 and 19, 1979, in Watertown, New York, at
which both parties were represented by counsel.
WILK 79-74-PM
At the beginning of the hearing, the parties proposed to settle
in Docket No. WILK. 79-74-PM, Citation Nos. 224253 for $44 which is the
full amount of the original assessment; 224255 for $66, the original
assessment; 224227 for $228, a reduction from the original assessment
which was $255. As grounds for the proposed settlements, Petitioner
represented that less negligence was involved than originally considered by the Assessment Office. Motions were introduced to vacate the
two remaining citations in this docket, Nos. 224254 and 224257. Both
parties indicated their agreement to this disposition for the citations in WILK 79-74-PM. The justification for the proposed action
appears on pages 3-8 of the transcript. A decision was rendered at
the hearing approving the settlement for the three citations and the
vacation for the remaining two (Tr. 8-9). I hereby AFFIRM that
decision.
WILK 79-75-PM
Thereafter, the parties moved to settle Citation_ Nos. 210406 and
210407 in WILK 79-75-PM for the full amounts of the original assessments, $72 and $44 respectively (Tr. 9-11). This settlement was
approved by the court under the terms and conditions mentioned on
the record which included a reduction of Respondent's negligence
points "l_/ (Tr. 11). The bench decision is hereby AFFIRMED.
WILK 79-76-PM
With regard to the one citation, No. 209615, in this docket, the
parties proposed a settlement for the original assessment of $52 and
a reduction of the negligence factor for assessment purposes (Tr.
11-12). The settlement was approved and this decision is hereby
AFFIRMED.
1/ I have approved these and other settlements mentioned below
because the parties have agreed to settle for the full amounts of the
original assessments which were determined to be· proper penalties. As
a part of the settlements MSHA agreed to reduce the negligence points
charged against Respondent in the assessment process. It is not
exactly clear how the Respondent is benefited from this, but because
the parties incorporated such penalty point changes into their agreements, the procedure was accepted as part of the settlements.

1700

WILK 79-41-PM
The parties agreed to the following stipulations for the remaining dockets: (1) Respondent has a prior history of violations,
(2) Respondent had 3,061,602 production tons for the year 1978; the
production for the particular mine was 359,402 tons, (3) Respondent
would not introduce evidence of inability to pay any penalties (Tr.
13-15).
Thereafter, the· parties presented evidence in a consolidated
fashion on Citation Nos. 210082, 210083, and 210084.
The following bench decision found at pages 108-110 of the transcript, with some corrections, was issued at the hearing:
JUDGE MICHELS: Unless there's something further, gentlemen, I'll proceed to make the decision.
This matter, as I've stated before, involves
WILK 79-41-PM. The petition for assessment of civil penalty charges St. Joe Zinc Company with violations of three
mandatory standards. The nature of these charges and all
other pertinent information has been fully developed on the
record. A major defense, which is a threshold issue raised
by the Respondent here, concerns the independent contractor
issue, a matter which I was fully prepared to ad~ress
myself to. However, based on the evidence, and specifically the testimony of the inspector, it now appears that
the charges were addressed to a company that's not before
this Court, namely, the E.K.P., Inc., a sub-contractor
doing work for the Respondent, the St. Joe Zinc Company.
Now, counsel for the Secretary has characterized this as a
technical matter. It is extremel~ difficult for me to
understand this as technical at all. The inspector knew
who the mine owner was and he's specifically charged the
E.K.P., Inc., rather than the mine owner. That was his
intention, and the records reflect that. Now, then, at
some later date, the Secretary in the petition charges
St. Joe Zinc Company as the Respondent, but as I indicated,
the citations here were addressed to an entirely different
company, a company not here present. I know of no precedent in this field of law by the Board of Mine Operations
Appeals or the courts that would suggest that this technicality, if you will, is such that you could sustain a
charge against the company not cited in the citations. I
previously alluded to the fact that part of the difficulty
is that a dismissal on the ground of what is really a failure of proper notice would possibly subject the company to
a citation for these same charges. As I have indicated, I
think that would be a very bad result because there should

1701

be finality in these cases. It's been clearly brought out
this lack of notice or the fact that St. Joe Zinc
Company was not named was brought out in the answer. The
Secretary has been aware of this, and it could have (within
anJ appropriate time, amended the citations or issued new
citations which would address themselves to St. Joe. Under
those circumstances, I think the government has had its day
in court. I think this matter ought to be final. On that
basis, I will dismiss these charges with prejudice. That
is my decision.
tha~

The above decision vacating the citations and dismissing
the petition in WILK 79-41-PM is hereby AFFIRMED.
WILK 79-72-PM
The parties agreed to settle Citation No. 210003 for $66, the
full amount of the original assessment, based upon a lowering of the
negligence categorization (Tr. 110-112). Additionally Petitioner
moved to vacate Citation No. 210021 (Tr. 112-113, 255-256). Both
proposals were approved at the hearing and I hereby AFFIRM that
decision.
Thereafter, evidence was introduced on Citation No. 210007. At
the conclusion of the parties' presentation, the following bench decision found on pages 141-146 of the transcript, was issued:
JUDGE MICHELS: My decision on this citation is as
follows: Since prior to this I have not made findings on
the criteria, I ~ill also do that now for this citation,
but the general findings for the general criteria, I will
not make hereafter. This is citation 210007. The inspector charged a violation of 30 CFR 5].15-4, alleging as a
condition or practic.e, "Safety glasses were not worn by the
driller while operating a jack leg drill." This mandatory
standard reads as follows: "All persons shall wear safety
glasses, goggles, or face shields, or other suitable protective devices when in or around an area of a mine or
plant where a hazard exists which could cause injury to
unprotected eyes."
My finding as to the fact of the violation is as
follows: It is clear, and there is no dispute that the
miner in this instance was not wearing goggles. The question is, or seems to be whether he was, in fact, in or
around an area where a hazard existed. The testimony .differs, at least to some extent, on that issue. The inspector clearly indicated his belief that there was a hazard,
that material at different stages of the drilling can be
thrown off and into the eyes of the miner. Mr. Stevens,

1702

witness for the operator, testified that he had never seen
an accident to the eyes by such drilling due to the fact
that the miner is some six feet away, at least in the
beginning of the drilling, and that because of the nature
of the material and the use of water, the danger of chips
flying off did not exist. However, upon my question, as I
understood it, he did admit that it was possible for chips
to fly off and affect the eyes. In this instance, I will
accept the testimony of the inspector. He was at the scene
and saw the c.ondition as it existed. He also had responsibility of requiring goggles for such a situation even
though at the particular or precise time there may not have
been chips flying off. The situation such as he described
in his testimony, that because of the blasts of air and
other factors, show there are at least two stages where the
eyes can be subjected to danger. I don't know that I can
make a finding as to whether such injury is very likely,
but it does seem at least that it could happen, and it is
the purpose for the standard. Accordingly, I find that
there was
violation of 57.15-4 as charged.

a

My findings as to the criteria are as follows: A
computer printout was submitted, Petitioner's Exhibit 10,
showing the past history. The history is for previously
issued citations and none of these are violations of this
particular standard. In my judgement, this is not a
significant history, and I so find.
As far as the size of the con1pany is concerned, there
is a stipulation for production tons -- 1 believe that it
was 359,420 for this particular mine. There is no evidence
as to the number of employees. I am not exactly clear in
my own mind just from those production figures as to where
that would place this mine and operator as far as size. It
seems to me, however, that it is a substantial amount of
production, and for the purposes of this record, at least,
I would find that it was a medium-size operator.
There is no evidence that the fines that will be
levied here will affect the operator's ability to continue
in business. I find as to the gravity of .the violation,
since this involves a hazard to the eyes, it could be a
.serious violation. However, taking into account the substantial testimony that.there is a relatively low likelihood of that happening, I would find it relatively minor
seriousness, and I'm confining that to the circumstances
of this record. On the negligence, the inspector testified
to the affect, according to my notes, that the operator
could not have known or predicted that this miner would not
have worn these glasses. The testimony was that the mine

1703

operator did provide the glasses and also training in the

mfo of glasses, so there is a slight negligence on that.
good faith, the violation was abated within the time
set.

On

On this violation, the assessment of the assessment
officer was $30, but taking into account the very low
negligence and the evidence that shows the low relative
seriousness, I am going to reduce that by one-half, so my
fine would be $15 for this violation.
The above decision is AFFIRMED.
Evidence was then introduced on Citation No. 210013. At the
conclusion of which, the following decision was rendered from the
bench (Tr. 168-170):
JUDGE MICHELS: I will proceed to make the decision.
This is citation 210013. The inspector issued a citation
charging the violation of 57.9-2. The condition or practice which he alleged was as follows: "The 500 level Eimco
911 loader left front wheel hub was not in good repair -One stud was broken." This mandatory standard, that is,
57. 9-2, reads as follows: "Equipment defects affecting
safety shall be corrected before the equipment is used."
On the fact of the violation, I find as fotlows:
There is no dispute that a stud was missing from the wheel
or from the hub in question; therefore, the machine was
not in good repair. The defense has been raised, however,
that the machine was not in use and was out of use for the
purpose of being in repair. The testimony of Mr. Stevens
is to that effect. Mr. Mitchell the inspector, testified
that he did not know or had no reason to know whether the
machine was out for repair. At this time, according to the
testimony, the company was not using a tag to indicate on
the machine being in repair status. I should add that this
was shortly after the Act became effective, so far as this
company was concerned. As I understand it, the company
does now use such tags. In my view, the inspector, knowing
what he knew, was justified in issuing the citation. However, the evidence received does indicate that the machine
was out for repair. The inspector has admitted that had he
known that it was not being used, but was in a repair
status, he would not have issued this citation. So then I
say he was justified on the basis of what he knew; nevertheless, because of .the circumstances now brought out, and
we know, in fact, that it was out for repair, my finding
would be that there was no violation. Accordingly, Citation No. 210013, is hereby vacated, and the petition as to
that citation is dismissed.

1704

This bench decision vacating the citation is hereby AFFIRMED.
Following this decision, evidence was introduced on Citation
No. 210019. The following bench decision was issued on the merits
of that citation (Tr. 251-255):
JUDGE MICHELS: This citation is 210019. The inspector cited a violation of 57.3-22 alleging a condition or
practice as.follows: "Adequate scaling and ground support
was not provided at the water course zone in the surface
decline. This was the principle travelway to the working
faces." The standard in question, which is 57.3-22, contains a number of provisions, at least two of which require
the testing and examination for conditions. The inspector
testified to the effect that these two provisions were not
complied with, but it would be my view that there was not
substantial evidence to support that. Two other provisions, however, in the standard read as follows: "Loose
ground shall be taken down or adequately supported before
any other work is done. Ground conditions along haulageways and travelways shall be examined periodically and
scaled or supported as necessary." Now, the issue before
me is not whether or not the inspector was correct in
issuing an imminent danger order. At least, as I understand it, the only issue before me is whether or not the
conditions which I just read existed, and then, .if they
did, of course, the penalty that should be assessed. I
hope I'm clear on that, that I am not here passing on the
exercise or the discretion of the inspector in issuing an
imminent danger order. The fact is, he could issue such an
order if he thought there were dangerous conditions even
though no violation of any mandatory standard existed.
In this case, it so happened that the inspector did
charge, in addition that there was, in his words, a lack
of adequate scaling and ground support. Now, the testimony
is, I suppose you might call it, somewhat contradictory on
the question of whether there was or was not adequate
support, which I am addressing myself to. The inspector,
on the one hand, considered that there wasn't adequate
support, but as I understand it, that did not have to do
with the water course itself. That had to do with the area
around the water course, and the testimony of other witnesses, I believe it was Mr. Stevens, was that there was
twelve to fifteen pins in this area, and that the purpose
of these pins was to support the whole area. The inspector, on the other hand, was unable to testify as to the
number of pins. The inspector testified that a rock was
scaled down, and there is some other testimony that is in
the nature of hearsay and indirect to the effect that there
was nothing scaled down.

1705

I will accept the inspector's testimony that a rock
was pulled down because he was the only person who testified who was there at the time. In spite· of the fact that
other witnesses did testify, and I believe sincerely that
they had examined this area, and that it was, in their
opinion, safe, the fact that a rock could be scaled out of
the area suggests to me that it was, in fact, not safe and
needed additional support. My decision has no relation to
the support that was eventually given to the roof. I am
not passing on the abatement, but I am just simply stating
and deciding that because of the fact of the loose rock
to which the inspector testified, I find that the ground
conditions had not been scaled or supported as necessary.
On this basis, I find there was a violation of 30 CFR
57.3-22.
There are three criteria which, in addition to those
previously found, that I will take into account. So far
as the gravity is concerned, it is obvious that rocks and
loose material which may fall represented a grave hazard,
and I find that this was a serious violation. On the
question of negligence, as I previously indicated, the
witnesses for the operator testified uniformly that they
had examined this area and had come to the conclusion it
was safe. I don't think this record shows how common it is
to require a fence or to put a fence up for protection such
as was done here. I have the impression, however, that it
may be extraordinary. Furthermore, there is at least the
possibility that the loose rock was simply a type of rock
that could not be ordinarily detected under the conditione.
So for that reason, I would find a small degree of negligence in this case. There is no issue on the good faith
abatement because the mine or the area was closed due to
the imminent danger. No finding is necessary on that. The
assessment, in this case by the assessment officer, was at
$325. In view of the fact that I have found a small degree
of negligence, * * * I will assess a penalty of $150 for
this violation. That completes the decision on citation
210019.
The above decision on Citation No. 210019 is hereby AFFIRMED .
. Thereafter, the parties presented evidence in a consolidated
fashion on Citation Nos. 210027 and 210028 which both allege violations of 30 CFR 57.3-20. At the conclusion of the parties evidence, the following bench decision, recorded at pages 356-362 of
the transcript, was delivered:
JUDGE MICHELS: This is the decision on citation
number 210027. The inspector charged a violation of 30 CFR

1706

57.3-20, listing the condition or practice as, "The ground
c'ontrol method was not adequate to control deterioration
between the roof bolts." The mandatory standard 57.3-20,
[states]: "Ground support shall be used if the operating
experience of the mine, or any particular area of the mine,
indicates that it is required. If it is required, support,
including timbering, rock bolting, or other methods shall
be consistent with the nature of the ground and the mining
method used. 11 I note that this was an order of withdrawal
and it was issued on the basis of the inspector's determination that this was, in his view, an imminent danger. It
is my understanding that the issue of imminent danger is
not before me, except insofar as it may be applicable to
one of the criteria, namely, the question of gravity. The
operator may ask for a review of an imminent danger order,
but it is not my understanding that such a review has been
requested here. Accordingly, my decision is confined
solely to the question of whether or not the mandatory
standard was violated and, of course, if so, the amount of
the assessment.
In this citation, the evidence, as I understand it, is
seriously in conflict on several vital points. The inspector has a basis for his\ determination and testified that
there were roof bolts hanging down in the pertinent area
which was fifteen-by-fifteen foot area, from two inches to
one foot. Also, upon his request, a miner sounded out the
area and, according to·the inspector's testimony, it was
drummy. Mr. Streeter, who was 'with the inspection party,
testified that there were not any hanging bolts. Furthermore, he testified that he did'not hear any drummy sounds.
Mr. Stevens, who had seen the area before and also after
the screen was put in, testifie~that there were no hanging
pins or bolts. The decision that I'm going to make has
nothing to do with the [truthfulness of the testimony] of
any of the witnesses. So far as I can determine, they were
telling the truth of the situation as they saw it. As is
not unusual, different persons saw the same situation in
entirely different ways, which brings me, then, to the
precise decision.
I emphasize that I'm not passing on the question of
whether the inspector was entitled to ,issue an imminent
danger order. It is not before me. I don't believe, however, that on the state of the record that I have, that I
could conclude that the government has proved its case by
a preponderance of the evidence, which is the requirement
under the Commission's rules. There's equally plausible
evidence on both sides. I should stress that I understand

1707

the inspector's determination to be based on his determinations that bolts were hanging down and that it was dry. It
is my further understanding that he would not have issued
that order had he not found those conditions. His findings,
however, are contradicted by other evidence, and under the
circumstances, it seems to me that there has been a failure
of burden of proof. The witness that might have been helpful, who actually did the sounding, was not called, and
there is no information in the record as to what his testimony might be. Accordingly, as to 210027, I find that
because of the failure of proof by a preponderance of the
evidence, there is no violation shown of 30 CFR 57.3-20.
I hereby vacate the citation and the petition will be dismissed as to that citation.
The decision as to citation 210028 is as follows: The
inspector, again, charged a violation of 30 CFR 57.3-20,
stating the condition or practice to be, "Loose ground was
not removed on the llOO D-2 decline, the back and the ribs,
from the llOO to the face." I have already quoted the mandatory standard of law. The inspector testified as to this
citation that he saw hairline cracks in an area approximately one inch wide by two inches in length on the back or
roof, and he also observed loose ground on the ribs. He
testified that several small pieces of approximately one
pound were removed. In this instance, he testified that
the roof was sounded and it indicated a drummy sound. The
inspector did not observe roof bolts. He further testified
that, on returning to the area, he believed that a piece of
material had been removed from the roof or back, based on
the ·fact that the area looked clean.
The witnesses for the Respondent were Mr. Streeter and
Mr. Stevens. Mr. Stree~er testified that no material was
brought down off the roof or back. However, he did agree
that there was loose material on the side which was observable. He testified that it was gapped open. Mr. Stevens
testified that he did not see, upon observing the area
after abatement, any part of the roof or back in which
material had been scaled down. It is obvious therefore,
that the testimony is in disagreement as to the fact of
whether there was loose material or ground on the roof or
back. It is not in disagreement that there was loose
material on the rib. It is my finding that this loose
material on the ribs does violate the standard 57.3-20.
[Further], I do not think the evidence sufficient to support a finding that there was loose, unsupported material
on the roof or back.

1708

Findings have already been made heretofore as to the
criteria except for gravity, negligence, and abatement. So
far as the gravity is concerned, since the finding concerns
only the loose material on the ribs, it is not as serious
as if there had been loose material on both roof and ribs.
However, I do find that it is a serious violation. On
negligence, the inspector testified that the operator
should have known of the condition, and he believed that a
foreman passed through the area on a daily basis because it
was a travelway. Mr. Streeter also conceded that the
foreman would have inspected the area at least in the prior
night shift, although, he might have missed observing this
particular condition. I find ordinary negligence. There
being nothing to the contrary, I find that the condition
was abated rapidly in good faith. For the violation found
in citation 210028, the assessment office has asked for a
penalty of $395. In light of the finding of lesser gravity,
I will reduce that penalty to $200. The sum of $200 is,
therefore, the assessment for this violation.
The above bench decision vacating Citation No. 210027 and
assessing a penalty of $200 for Citation No. 210028 is hereby
AFFIRMED.
Following this, Petitioner proposed that Citation No. 210032 be
settled for $90 and Citation No. 210036 be settled for $105. These
citations were originally assessed at $180 and $210, respectively,
but Petitioner stressed that a lesser degree of negligence was
involved than that which was originally considered by the Assessment
Office (Tr. 363-364). These settlements were approved at the hearing
and I hereby AFFIRM that decision.
Petitioner also proposed to vacate Citation No. 210039, which is
the remaining citation in WILK 79-72-PM, and that the petition be dismissed as to that citation (Tr. 364-365). This action was approved
at the hearing and that decision is AFFIRMED.
WILK 79-73-PM
Thereafter, the parties moved to settle in WILK 79-73-PM, Citation Nos. 210057 for $39 (originally assessed at $78), 210062 for
$105 (originally assessed at $210), 210064 for $113 (originally
assessed at $225), 210065, 210068, and 210069 for $150 each (originally individual 1 y assessed at $325 each). Petitioner represented that
less negligence .s involved than was originally considered (Tr. 365372). Also, Per :ioner moved to vacate Citation No. 210063 since the
equipment involv.: ..:l was out of service for repair (Tr. 367-368).
Decisions were re11dered from the bench approving the settlements
for the six citations and the vacation for the one. I hereby
AFFIRM those decisions.

1709

The sununary of the dispositions in these dockets is as follows:

WILK 79-74-PM
Citation No.

Action taken

224253
224255
224227
224254
224257

settled for $ 44
settled for $ 66
settled for $228
vacated
vacated

WILK 79-75-PM
Citation No.

Action.taken

210406
210407

settled for $72
settled for $44

WILK 79-76-PM
Citation No.

Action taken
settled for $52

209615

WILK 79-41-PM
Citation No.

Action taken

210082
210083
210084

vacated
vacated
vacated

WILK 79-72-PM
Action taken

Citation No.

settled for $ 66
vacated
assessment of $ 15
vacated
assessment of $150
vacated
assessment of $200
settled for $ 90
settled for $105
vacated

210003
210021
210007
210013
210019
210027
210028
210032
210036
210039

1710

WILK 79-73-PM
Citation No.
210057
210062
210064
210065
210068
210069

settled for $ 39
settled for $105
settled for $113
settled for $150
settled for $150
settled for $150
ORDER

It is ORDERED that Respondent pay total penalties of $1,839
within 30 days of the date of this decision.

Franklin P. Michels
Administrative Law Judge
Distribution:
Anthony C. Ginetto and Deborah B. Fogarty Esqs., U.S. Department
of Labor, 1515 Broadway, Room 3555, New York, NY 10036
(Certified Mail)
Sanders D. Heller, Esq., 23 Main Street, Gouverneur, NY 13642
(Certified Mail)

1711

FIEDIERAL fV:'HNE SAFETY AND HEALTH REViEW COl\~ilUSS:ON
OFFICE OF ADMINISTRATIVE LAW JUDGES
401!1 WILSON BOULEVARD
ARLl~GTON, VIRGINIA 22203

OCT 2 t

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

~97~

Civil Penalty Proceeding
Docket No. WEST 79-212-M
A/O No. 24-00146-05003
·:

Warm Springs Mine

COMINCO AMERICAN, . INC. ,
Respondent
ORDER OF DISMISSAL
On October 1, 1979, respondent Cominco American, Inc., filed
a motion to dismiss the civil penalty complaint for the reason that
it had not been filed within 45 days of the receipt of respondent's
notice of contest as required by 29 CFR 2700.27.
Petitioner has not responded to the motion within the time
allowed by cur proc~dural rules nor has it responded at all. Tha
motion is granted, the citation vacated and the case is DISMISSED.
In view of this disposition the parties are directed to advise
me if they still intend to pursue Docket No. DENV 79-49-M.

el~ e?JJ~~ (}.,.

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

James H. Barkley, Esq., Office of the Solicitor, U.S. Dept.
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294
(Certified Mail)
James M. Day, Esq., Cotten, Day & Doyle, 12th Floor, 1899 L
Street, NW., Washington, D.C. 20036 (Certified Mail)

1712

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

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

Civil Penalty Proceedings
Docket No. DENV 79-217-PM
A.C. No. 14-00164-05001

v,

Kansas Falls Quarry & Mill Mine
WALKER STONE COMPANY, INC.,
Respondent

Docket No. DENV 79-367-PM
A.C. No. 14-01200-05001
P. F. Quarry and Mill

DECISION
Appearances:

Keithley F. T. Lake, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
David S. Walker, President, Walker Stone Company,
Inc., for Respondent.

Before:

Administrative Law Judge Michels

The above-captioned civil penalty proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a). On January 15, 1979, the Mine Safety and
Health Administration (MSHA) filed a petition for the assessment of
civil penalties, docketed in DENV 79~ll7-PM, alleging that Respondent
committed violations of 30 CFR 56.12...:25, 56.12-8, and three separate
violations of 56.5-50(a). Thereafter, on February 28, 1979, MSHA
filed a second petition, docketed in DENV 79-367-PM, alleging that
Respondent committed two violations of 30 CFR 56.12-1 and one violation of 56.14-1. On February 16 and March 12, 1979, Respondent filed
answers contesting the violations in these dockets. A hearing was
held on September 5, 1979, in Kansas City, Missouri, at which Petitioner was represented by counsel and Respondent was represented by
its president, Mr. David S. Walker.
Docket No. DENV 79-217-PM
Citation No. 183004, March 22, 1978
Evidence was first received on Citation No. 183004 which alleges
a violation of 30 CFR 56.12-25. After the conclusion of the parties'

1713

presentation, a decision was made orally from the bench. It is
recorded at pages 75-79 of the transcript and with certain necessary corrections and deletions reads as follows:
THE COURT: All right. That completes, then, the evidence on this particular citation; and, as I announced, I
will rule, or decide, this matter from the bench unless
somebody objects to that at this time.
Now, ordinarily, I would proceed and make a finding
first as to the facts of the violation. However, we do have
a number of alleged violations here, today; and, in order
to dispose of certain criteria that would be involved in
each and every one of those, if they were proved, I think
that it might be orderly just to go ahead and make findings on those so that they can be applied, then, to each
and every one of the citations, if any, that are found to
be violations.
Number one, as to the history of past violations:
evidence was presented, so I find there is no history.

No

Number two, as to the size of the company: Based on
the evidence presented, the acreages and the number of
people working, I find that it is a small concern.
Number three, I further find that the penalties which
will be assessed here, will not affect the operator's
ability to continue in business.
Now, with respect to Citation No. 183004, the inspector alleged as the cpndition or practice the following:
"Enclosures of the southside con.trol house were not properly
grounded." He alleged that this violated 30 CFR 56.12-25.
That provision of the mandatory standards reads as
follows: "Al 1 metal enclosing or encasing electrical
circuits shall be grounded or provided with equivalent
protection. This requirement does not apply to batteryoperated equipment."
The following is my decision as to the fact of the
violation; and I'm going to preface it so that there will
be no misunderstanding about my decision. I have no question or doubt about the seriousness of this condition. The
matter that preceded this case [in another docket and concerning a different company] involved an exactly similar
kind of condition; and the man was killed. So you simply
cannot underrate, or understate, the seriousness.
* * * But I am not dealing with that in this decision.
My decision is based on the lack of sufficient specificity in the citation. I will try to explain that, if

1714

I can. * * * The inspector pointed out that he finds where
some of the "enclosures" * * * had no ground at all; and
some that were grounded; but, in his view, not properly.
Furthermore, he indicated that his view, as to the, as to
whether a grounding was proper or not proper, was based on
his reading of the Electrical Code; and I believe that he
indicated he relied on the 1975 edition.
Now, having heard all of the evidence on both sides,
it just seems to me that the statement made, as to the condition or practice, was such that Respondent would be hardput to defend itself.
The rules do require that these citations be explicit.
Now, then, what I mean by that is this: If we're relying
here on the failure of grounding, the word "properly"
should not have been used at all. In other words, not
grounded, that would be one kind of a case and could be
defended on that basis.
Now, if it were, and apparently is, based, at least
in part, on a so-called improper grounding, then I believe
that this citation should specify if it was based as I
understand it was, on a standard, if that's what they're
called, as set out in the Electrical Code. I think that
should be indicated so that the operator, or the Respondent, will know with which, with what he is charged. It's
a question of exactness.
If it, in fact, includes both these items, that, too,
it seems to me, [should] have been stated. The operator
did understand sufficiently to abate the problem because a
new grounding system, or method, was installed; but * * *
in this circumstance, I don't know that that cures the
[problem].
The reason I was so careful .to distinguish that I am
ruling only on the basis of the exactness, or specificity,
of the citation is because I don't want to get into the
problems and the questions of what is involved by,
indirectly at least, incorporating the Code, the Electrical
Code, in such a regulation as this. I am just not addressing myself to that question whatsoever.
I hope that is clear in this record that I am basing
my decision wholely on the language used in describing the
citation; and since the inspector is here, I have to say
that this is no criticism in any way, shape or form of his
action; but I do honestly believe, in these circumstances,
that is not a clear enough statement to defend. So that is
my decision on this citation.

1715

Thus, as to Citation No. 183004, it was found that there was no
violation since the citation was vague and ambiguous andthat it did
not give sufficient notice as to the exact nature of the violation.
The citation was vacated and the portion of the petition concerning
that citation was dismissed (Tr. 132). I hereby AFFIRM this decision
for Citation No. 183004.
Citation No. 183005, March 22, 1978
Following t~e above decision, Petitioner and Respondent introduced evidence on Citation No. 183005. After considering this evidence, a decision was issued from the bench. This decision found in
the transcript at pages 90-93, with some corrections, is set forth
below:
THE COURT: On this citation, we ar~ here considering
Citation No. 183005, the inspector charged, as a condition
or practice, as follows: "Energized power conductors,
entering the control switchboxes in the southside control
room were not passing through insulated bushings."
This was alleged to be a violation of 30 CFR 56.12-8
which reads as follows: "Power wires and cables shall be
insulated adequately where they pass into or out of electrical compartments. Cables shall enter metal frames of
motors, splice boxes, and electrical compartments only
through proper fittings. When insulated wires'· other
than cables, pass through metal frames, the holes shall
be substantially bushed with insulated bushings."
This is my decision on this citation; and I should
state, which I failed to state previously, that this is
pursuant to 29 CFR 2700.65(a), which provides that this
decision, will be reduced to wrfting after the filing of
the transcript; and I want to specifically reserve the
right to make appropriate corrections or changes; and, if
necessary, I might make some additions.
My decision on the fact of the violation is as follows: The evidence here, [which] as I understand it, is
practically, if not wholly, undisputed, is that power conductors were entering the control switchboxes and were not
passing through insulated bushings. Now, this is directly
contrary to the mandatory standard which I cited.
The defense, as I understand it in part, was that
these provisions or standards do not act to give ~ warning
to Respondent, or the operator, so that he will know specifically whether or not he is in violation. I think it
should be noted that Congress, in passing this law, has

1716

provided little or no discretion where standards are violated. The only discretion that comes into it is the
amount of the penalty which is based, then, on various criteria such as gravity and negligence; and so, therefore,
in appropriate cases, the penalty can be very small, if
those things are taken into account. But, otherwise, the
legislation, the legislative history is clear that when the
standards are violated, the inspector has no alternative
but to issue a citation; and, unless for some reason the
Commission should find that it would be unwarranted, I
believe that it also is obligated to find a violation.
So I do find that, in this case, the standard as
charged was violated. My findings on the statutory criteria are as follows: I have already made findings on the
prior history, size of the operator and effect on the operator's ability to continue in business.
So far as good faith compliance is concerned, my
recollection is that there was no specific evidence on
this point; and so I will [make no finding] on this particular criterion,
Gravity: The inspector testified as to the seriousness
of it, the fact that it could cause a shock and even an
electrocution; and I accept his testimony and find that it
is serious.
So far as negligence is concerned, there was some testimony, I believe, that the operator should have been aware.
Mr. Walker, himself, has testified, however, that this
installation was made by a qualified electrician, had been
there for a number of years with.out any problem, and that,
in the circumstances, he had no particular reason to be
aware of the violation. However, as pointed out I believe
during the course of the testimony, there is an obligation
on the part of operators to be aware .of the regulations.
So, in the circumstances of this case, I will find that
there is some negligence. That completes the criteria.
The Office of Assessments has asked the sum of $40 for
this violation; and I believe that it is an appropriate
amount in the circumstances; and I hereby assess the sum of
$40.
I hereby AFFIRM the above decision and assessment for Citation

No. 183005.

1717

Citation Nos. 183014, 183016, 183018, April 20, 1978
Thereafter, the parties introduced evidence in a consolidated
fashion on Citation Nos. 183014, 183016 and 183018 which cite separate violations of 30 CFR 56.5-50(a). The following bench decision
found at pages 128-131 of the transcript, with some necessary
corrections, was issued at the hearing on the merits of the three
violations:
THE COURT: Both sides rest. I will make this decision
pursuant to the same reservations I previously mentioned.
My decision on the fact of the violation is as follows; and
this concerns the following citations: 183014, 183016 and
183018. Each of these citations allege a violation of
30 CFR 56.5-50(a).
·The inspector found, respectively, overexposure levels
as follows: 245 percent, 319 percent and 479 percent. In
terms of decibels, this has indicated noise level readings,
respectively, in the three cases of 96, 101 and 94 to 97.
The standard involved, which is 56.5-50; requires that
no employee shall be permitted an exposure to noise in
excess of that specified in the table below. The table
specifies that any employee, working 8 hours, shall be
exposed to no more than 90 decibels.
In this case, the readings were made for periods of
520 minutes, 480 minutes and 500 minutes, respectively;
each of which .[equals or] exceeds an 8-hour period.
Accordingly, at least as I understand this regulation,
there has been a violation in each of the three instances.
However, I recollect that the fact of the violations was
tied into the failure to wear the personal protective
devices; and this comes about because, under the measurements taken, if personal protective devices are worn and
reduce ihe noise sufficiently to * * * the permissible
noise exposures, * * * in these instances at least, there
would be no violation.
It seems to me that the matter of wearing these personal protective devices, in this case, is more of a
policy matter on the part of the enforcement agency; and
does not specifically raise a question in regard to whether
or not this provision is violated. As I read it, the men
were not wearing the devices; and they were overexposed,
as found by the dosimeter; and, accordingly, the section
has been violated.

1718

I <lon 1 t understand there being a question before me as
to whether or not it would be violated had they been wearing the ear protection devices because that would raise
whole new questions of fact about how much those particular
devices would reduce the noise or other questions. To
summarize, I do find violations, in the three cases cited,
as charged.
My findings on the criteria, other than history, size
of operator and effect on the operator's ability to continue
in business are as follows:
Good faith compliance: I understand that the miners
involved were provided with protective devices which provided the abatement in this instance. There being nothing
to the contrary, I find that there is good faith compliance.
So far as the gravity, or seriousness, is concerned,
the inspector testified that serious ear injury could
result. I accept his testimony and find that the violations are serious.
On negligence, the inspector testified that the foreman, or other supervisors, could have observed the failure
to wear the ear protective devices which, in this case,
would have been satisfactory to meet the standard.
Mr. Walker, testifying for the operator, has suggested
that, or testified that it was company policy to provide
to the miners these protection devices; and that if they
did not wear them, there was not much the company could do
about it.
As has been brought out her~ in the course of the
questioning, the standards are mandatory. This does create
problems where you're dealing with individuals. The question of the failure of an employee to wear the proper equipment is one that, in other areas, has been raised. In the
course of the negotiations, consultations, with Labor, I
believe that, if this matter is properly approached and the
seriousness of it impressed upon the union leadership, or
the labor leadership, that they will, in most instances,
comply.
If there is an instance, and it's brought to my atten-.
tion, where the operator has been in absolute good faith
and has done everything that you could ask that operator to
do and the men still. for one reason or another, fail to
respond, then I would take that into account; and in all
probability would find no violation in that particular
instance.

1719

To sum it up, however, in view fall the circumstances
mentioned, I would find [some] negligence in this instance.
Because of the circumstances, however, in assessing a penalty, I would take into account the difficulties mentioned.
The Office of Assessments has proposed a penalty of $38 for
each of the three instances; and because of the circumstances, I would cut that in half and assess a penalty of
$19 for each of the three instances. So that completes the
record as far as these three citations are concerned.
I hereby AFFIRM the above decision finding violations as to Citation Nos. 183014, 183016 and 183018, and assessing separate penalties
of $19 for each violation.
Docket No. DENV 79-367-PM
Citation Nos. 183076, 183077, 183079, September 7, 1978
Following the decisions made in DENV 79-217-PM, Petitioner made
the following motion to approve a settlement for all the citations in
DENV 79-367-PM:
MR. LAKE: * * * At this time the Petitioner would like
to present to the Honorable Judge Michels a proposed settlement for his consent and which has been reached between the
Petitioner and the Respondent, Walker Stone.
As to Citation 183076, which alleged a violation of
30 CFR 56.12-1, where it was stated that the electrical
circuits, originating in the control trailer, were not
equipped with circuit breakers or fuses of the correct
size and capacity to protect the circuits against excessive overloads or short circuits~
The aforesaid cit.ation was reviewed by the Office of
Assessments and a penalty of [$24] was assessed. The Petitioner and the Respondent have agreed to reduce that to
$16. It is the Petitioner's belief that the good faith
exhibited by Walker Stone in removing this condition from
the work premises was sufficient to warrant the reductions
in that he [Mr. Walker] recognized, [and] he has rectified
the condition and took immediate steps to abate it.
We think, for [this] purpose, the Act and the public
policy considered in the aforementioned Act would be very
well served. We also point out that the negligence
involved in this citation was not of the degree that would
not warrant a reduction in the fine. In view of the fact
of the cooperation of the Walker Stone Company and their
history of complying with the various suggestions brought

1720

them by the Mine Safety and Health Administration, we
think that a reduction in this instance would be in the
best interest of the Act.
In regards to Citation No. 183077, which alleged a violation of 30 CFR 56.12-8, in which electrical control boxes
and the control trailer of the stacking conveyor were not
equipped with proper fittings or insulated bushings where
the power conductor entered the boxes. It has been stated
that the Walker Stone Company had employed an electrical
contractor to do this work.
Mr. Walker stated that he was not that familiar with
all the provisions of the Code as to all the fittings and
the fact that he inunediately took steps to insure that the
proper bushings were inserted, were taken into con·sideration in proposing the settlement.
The Assessment Office, in this instance, assessed a
fine of [$30]. We propose that this be ~educed to $24 in
view of the good faith shown by Walker Stone Company and
[its effort to] rectify the condition. We feel that this
would effectuate the purposes of the Act in view of the
fact that the Walker Stone Company is aware of the obligation it owes to its employees and has taken immediate steps
to rectify the condition.
Citation No. 183079, involving a violation of 30 CFR
56.14-1, in which it was alleged that a V-belt drive on
the primary crusher conveyor was not equipped with a guard
to prevent persons from contacting the pinch point of the
V-belt drive. [On] this violatipn an assessed penalty of
[$34] was proposed by the Office of Assessments.
In reviewing this particular citation, this piece of
equipment is a portable piece of equipment, transported
from .job site to job site; and had just been relocated at
this particular facility; and the particular guard in
question here was inadvertently left at a prior work site.
The equipment did have a guard that was used at all times
with the equipment; and it just happened to be a fortuitous
circumstance. The equipment was brought on this particular
work site and, in the process, the guard was left behind.
We think that, in view of the facts, the circumstances
here could be described as slight negligence [since] * * *
there was a guard for the equipment and it just happened
that it was not transported at that particular time to this
particular location.

1721

We therefore propose to reduce the penalty to $24 in
this instance. We think, due to the circumstances in this
case, the purposes of the Act would be effectuated, again
stating the machine was guarded, did have a guard. It just
happened that it was not transported; and the time lapse
between a transportation of th{s piece of equipment and
the inspection was very short; and I think it was just a
case of slight negligence.
We therefore propose that the Judge approve the settlement as submitted by the Petitioner and agreed to by the
Respondent; and we feel that this settlement * * * reflects
the good faith effort of the Respondent to bring the conditions into compliance; and he has complied. We think
that * * * the approval of the settlement would effectuate
the purposes of the Act. Thank you.
This settlement was approved at the hearing subject to the submission of a non-admissions clause (Tr. 138). On September 14, 1979,
counsel for Petitioner filed the clause set out below which is hereby
incorporated as part of the settlement agreement:
Respondent's consent to the entry of a rinal Order by
the Commission pursuant to the Settlement Agreement shall
not constitute an admission by the Respondent of any violations of the Act, in any subsequent proceedings other than
proceedings brought directly under the provisions of the
Mine Safety and Health Act of 1977.
The settlement for the three violations 1n DENV 79-367-PM 1s
hereby AFFIRMED.
The summary of the dispositions 1n these two dockets 1s as
follows:
Docket No. DENV 79-217-PM
Citation No.

Assessment or Action Taken

183004
183005
183014
183016
183018

VACATED
$40
19
19
19
Docket No. DENV 79-367-PM

Citation No.

Settlement Amount

183076
183077
183079

$16
24
24

1722

ORDER
It is ORDERED that Respondent pay total penalties of $161 within
30 days of the date of this decision.

~~/?~
Franklin P. Michels
Administrative Law Judge
Distribution:
Keithley F. T. Lake, Esq., Office of the Solicitor, U.S. Department of Labor, 911 Walnut Street, Room 2106, Kansas City, MO
64106 (Certified Mail)
David S. Walker, President, Walker Stone Company, Inc., Box 563,
Chapman, KS 67431 (Certified Mail)

1723

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

OCT 2 9 i9N
Application for Review

PEABODY COAL COMPANY,
Applicant

v.

D9cket No. KENT 79-107-R

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

Order No. 795972
May 21. 1979
Ken No. 4 North Underground Mine

UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

Thomas R. Gallagher, Esq., St. Louis, Missouri,
for Applicant;
Joseph M. Walsh, Esq., Office of the Solicitor,
Department of Labor, for Respondent Secretary of
Labor;
Joyce A. Hanula, Attorney, Washington, D.C., for
Respondent United Mine Workers of America.

Before:

Administrative Law Judge Steffey

Pursuant to an order issued June 5, 1979, a hearing in the aboveentitled proceeding was held in Evansville, Indiana, on June 13 and
14, 1979, under section 105(d) of the Federal Mine Safety and Health
Act of 1977. Although evidence was submitted to support findings pertaining to the civil penalty issues which will be raised if MSHA files
a Petition for Assessment of Civil Penalty with respect to the violation which was alleged in Order No. 795972 which is under review in
this proceeding, this decision will dispose only of the issues raised
by the Application for Review filed by applicant. The civil-penalty
issues will be decided only if the parties are unable to settle those
issues at a conference with the Assessment Office and counsel for MSHA
subsequently files a Petition for Assessment of Civil Penalty.
Completion of the Record
During the hearing, MSHA's counsel introduced Exhibits 5 through
8 for the purpose of indicating that frequent unintentional roof

1724

falls have occurred in applicant's Ken No. 4 North Mine. Although it
had been assumed when Exhibits 5 through 8 were received in evidence,
that those exhibits covered unintentional roof falls only for the
years 1975 through 1978, when I examined the reports after the hearing, I found that one of the reports of unintentional roof falls pertained to one roof fall which occurred in January 1979. That is the
same roof fall about which one of applicant's witnesses testified at
the hearing (Tr. 443). In such circumstances, it appears appropriate
to make a separate exhibit for the report of the 1979 roof fall. Consequently, there is marked for identification as Exhibit 9 a one-page
report of an unintentional roof fall which occurred in January 1979.
Exhibit 9 is received in evidence.
At the hearing, MSHA's counsel stated that he would submit at a
subsequent time a computer printout pertaining to applicant's history
of previous violations and also a copy of an order of modification
which was issued by the inspector who wrote Order No. 795972 (Tr. 67). MSHA's counsel filed a copy of the computer printout and a copy
of the modification order with me on August 22, 1979. The letter of
transmittal stated that a copy of the computer, printout and modification order had been sent to applicant's counsel. I have received no
reply from applicant's counsel in opposition to receiving those proposed exhibits into evidence.
Consequently, there is marked for identification as Exhibit 10 a
three-page computer printout showing a history of previous violations
for applicant's Ken No. 4 North Mine. There is marked for identification as Exhibit 11, a one-page Modification Order No. 795972~1 dated
June 15, 1979. Exhibits 10 and 11 are received in evidence.
Issue
The issue raised by the Application for Review filed in this proceeding is whether an imminent danger existed on May 21, 1979, when
Order of Withdrawal No. 795972 was issued pursuant to section 107{a)
of the Act. At the conclusion of the hearing, counsel for all parties
waived the 9pportunity of filing posthearing briefs (Tr. 448) •
.Findings of Fact
I shall hereinafter make the findings of fact upon which my decision in this proceeding will be based. Following the findings of
fact, ·my decision will consider the arguments which are inherent in
the parties' evidentiary presentations.

1. Mr. Franklin D. Dupree, an MSHA inspector, arrived at
Peabody's Ken No. 4 North Mine about 2:30 p.m. on May 21, 1979, for
the purpose of making a routine spot inspection. When the inspector
went to the bathhouse, he heard UMWA's representative at the mine and
two roof bolters discussing what they believed to be separations in

1725

the roof in the No. 1 Unit - ID - 004 (hereinafter referred to as the
No. 1 Unit). The roof bolters had concluded that there were separations in the roof strata because the drilling bit on the roof-bolting
machine would jump about 2 inches almost every time a hole was drilled
for the purpose of installing roof bolts. The insp·ector told the
miners that he would check the roof conditions in the No. 1 Unit when
he went underground (Tr. 9-15).
2. The inspector was accompanied on his examination of the mine
by Mr. Inman, one of Peabody's roof bolters (Tr. 14). As the inspector
and Mr. Inman were about to go underground in the mantrip, Peabody's
mine manager, Mr. Alton Fulton, called Mr. Ernie Brock, the secondshift foreman on the No. 1 Unit, to the mine office for a short
discussion. When Mr. Brock returned to the mantrip, he remarked that
he had been given.instructions to pull out of the No. 1 Unit and drive
some rooms off to the left of that unit, but no explanation was given
for the announced intention of withdrawing from the No. 1 Unit (Tr. 16;
18; 47).
3. When the inspector arrived in the No. 1 Unit, all of the men
stopped at the dinner hole for a while, except fo+ Mr. Brock, the
unit foreman, who made an inspection of the face area. The inspector and his companion, Mr. Inman, began examining conditions in the
unit shortly thereafter by proceeding up the No. 4 entry toward the
face. When they reached the second crosscut outby the face, the
inspector noticed a broken place in the mine roof near the outby rib
and water was coming through the roof in steady drops. The broken
place extended the entire length of the crosscut between the Nos. 4
and 5 entries. The.crack was about an inch or less in width, but it
extended along the bottom of a V-shaped ridge which projected downward from the roof for a distance of about 3 inches. The legs of
the V-shaped ridge were abQut 10 or 12 inches apart at the roof, or
point of origin (Tr. 20-24; 56; 93). Xhe inspector considered water
dripping from the roof at the site of the cracked roof to be a further sign of a weakened roof because water displaces material comprising roof strata and creates voids in the roof (Tr. 39).
4. The inspector believed that the V-shaped broken place in the
roof of the crosscut constituted an innninent danger which he defined
as a condition which might cause injury or death before it could be
corrected. (Tr. 31; 57; 107). The inspector thereafter orally issued
an imminent danger order under section 107(a) of the 1977 Act and
advised Mr. Brock, the unit foreman, that he would determine the
extent of the area covered by his order as soon as he could complete
his examination of the unit (Tr. 23-24; 108).
5. The inspector then found another V-shaped crack in the roof
of the second crosscut from the face between the Nos. 5 and 6 entries
and still other cracks in the same crosscut between the Nos. 6 and 7
entries (Tr. 31; Exh. 2). The inspector ~ould not divorce the cracks

l726

in the roof from the separations he had heard described by the miners
before he began his underground examination (Tr. 32). Mr. Brock
granted the inspector's request that the operator of the roof-bolting
machine be permitted to drill test holes to determine whether separations still existed in the roof strata in the No. 1 Unit (Tr. 24-25).
The inspector had the operator of the roof-bolting machine to drill
about 35 test holes. The inspector concluded that actual separations
in ·the roof strata existed because, when the test holes were drilled,
the roof-bolting machine would suddenly jump about 2 inches after the
drill had penetrated the roof for a distance of from 36 to 38 inches
(Tr. 25-26; 74; 90-91). Resin-grouted roof bolts were being used and
the inspector believed that the roof bolts were pushing the resin into
the separations which existed near the ends of the bolts. The passage
of the resin into the separations was seriously eroding the effectiveness of the resin bolts by preventing the resin from hardening along
the full length of the bolts so as to pin the roof strata together
and provide a secure beam (Tr. 73; 76; 85-86; 98; 105).
6. The inspector found that the drill stem did not jump when
test holes were drilled in the No. 4 entry at the No. 1 crosscut, nor
at the crosscut between the Nos. 3 and 4 entries, nor in the No. 3
entry at "the last open crosscut (Tr. 27) •. The inspector ultimately
determined that the left side of the No. 1 Unit was the place where
the roof was unsafe and Order No. 795972 specifically delineated the
territory covered, namely, an area extending 175 feet outby the face
in No. 7 entry, an area extending 130 feet outby the face in the No. 6
entry, an area extending 110 feet outby the face in the No. 5 entry,
an area extending 80 feet outby the face in the No. 4 entry, and an
area in the No. 3 entry at the second open crosscut (Tr. 141-142;
Exh. 1).

7. After the inspector had orally advised Mr. Brock that an
imminent-danger order had been issued, "'Mr. Brock responded by having
the miners bring crossbars and legs into the mine (Tr. 37). The
miners then completely crossbarred the crosscut between the Nos. 4
ana 5 entries where the inspector had first observed a crack in the
roof (Tr. 38; 103).
8. The Ken No. 4 North Mine has a history of unintentional roof
falls (Tr. 33). Although the inspector did not see any roof falls in
the No. 1 Unit on May 21, 1979, at the time he issued his imminentdange~ order (Tr. 65), Peabody reported 10 unintentional roof falls
in 1975, 16 unintentional roof falls in 1976, 20 unintentional roof
falls in 1977, 14 unintentional roof falls in 1978, and 1 unintentional roof fall in 1979 up to the date of the hearing which was held
on June 13 and 14, 1979 (Exhs. 5, 6, 7, and 8; Tr. 443). Additionally, Peabody has encoqntered places in its Ken No. 4 North Mine
where the roof conditions were so adverse that it was not economically
feasible to support the roof and Peabody was forced to discontinue
mining in such areas (Tr.· 41-44; Exh. 2).

1727

9. Peabody's mine manager at the Ken No. 4 North Mine, Mr. Alton
Fulton, refused to believe that roof conditions in the No. 1 Unit were
serious enough to justify issuance of an imminent-danger order (Tr.
35). Although the miners were withdrawn from the unit in compliance
with the inspector's order, the adverse roof conditions cited in the
inspector's order were never abated and the coal remaining in the unit
was never extracted (Tr. 255).
10. The inspector stated that Mr. Shemwell, the roof bolter who
drilled the test holes, drilled the holes while exerting a steady pressure on the upthrust lever and the inspector said that he would have
detected it if Mr. Shemwell had tried to manipulate the lever so as to
fabricate the appearance of jumping. The inspector firmly believed
that authentic jumping was occurring and that the jumping was caused
by actual separations in the roof strata (Tr. 61; 64). The inspector
also stated that hitting extremely hard rocks with the d~ill stem
would have slowed the drill stem and that the speed of the drill would
be restored to normal after the drill had passed through such rocks,
but the inspector said that operators of roof-bolting machines are
familiar with variations in types of roof strata and would not interpret reactions of the machine when rocks are encountered to be separations in roof strata (~r. 62-64; 68·69; 81).
11. The inspector believed that if crossbars had been installed
in the areas cited in his order as having separations, the No. 1 Unit
would have been made safe for resumption of mining activity (Tr. 96;
109).
12. About a week before the imminent-danger order was issued,
Mr. Inman told Mr. Brock about the jumping of the drill on the roofbolting machine, but Mr. Brock did not think it was bad enough to
need extra support--that is, support in addition to the 42-inch
resin bolts which were being installed at the time the order was
issued (Tr. 34; 149-150). Mr. Brock took his hammer and pulled down
some pieces of shale and decided that he would take no further precautions until such time as the roof appeared to become more adverse
than it was when Mr. Inman warned him about it (Tr. 162).
13. Mr. Charles Ford, the unit foreman in the No. 1 Unit on the
day shift, stated that he had worked the day shift immediately preceding the issuance of the imminent-danger order (Tr. 167). Mr. Ford
had also known about the jumps of 1 to 2 inches in the drill for about
a week before the imminent-danger order was issued, but he had concluded that the drill was hitting soft places in the roof strata
because the jumps occurred to within 10 inches of the working face
and he felt that there would have had to have beeri a visible· break 1n
the roof in order for separations to have occurred that close to the
face (Tr. 168).
14. Order No. 795972 was orally issued at about 3:30 p.m. on
the evening shift of May 21, 1979 (Tr. 59-60). Toward the end of

1728

Mr. Ford's day shift of May 21, 1979, an operator of a roof-bolting
machine, Mr. Charles Howard, called Mr. Ford's attention to some bad
roof at a breakthrough near the face of the No. 5 entry. Mr. Ford
thought that the roof was too hazardous for bolts to be installed
until such time as crossbars could first be erected. Since it was
then close to the end of Mr. Ford's day shift, Mr. Ford told
Mr. Howard that he would report the bad top to the mine manager.
Mr. Ford also made. an entry in the preshift book stating "All left
side of unit--bad top and water" (Tr. 164; 175). When Mr. Ford
reported to work on the following day, May 22, 1979, he was surprised
to hear that the innninent-danger order had been issued on the evening
shift because the mine superintendent, Mr. Clyde Miller, had given
instructions for the men to withdraw from the No. 1 Unit and work in
some rooms to the left of the No. 1 Unit. Mr. Ford said that he had
expected to mov~ back into the No. 1 Unit after the miners had ''* * *
made it safe to go back in there" (Tr. 171). Mr. Miller's decision to
withdraw from the No. 1 Unit had been made after Mr. Ford had reported
the jumping of the roof-bolting machine and the bad top in the No. 5
entry. Mr. Ford expected to go back into the No. '1 Unit after about
three shifts because Mr. Ford estimated that two shifts would be
required to move a pump into the No. 1 Unit and that one shift would
be required to install supporting timbers. Mr. Ford would not have
objected to reentering the No. 1 Unit to work after the dangerous
places had been timbered (Tr. 177).
15. Mr. Alton Fulton, the mine manager, worked the day shift on
May 21, 1979, and he received the aforementioned call from Mr. Ford
about 2:15 p.m. The call' had been made by Mr. Ford to advise
Mr. Fulton that crossbars were needed at two crosscuts. Mr. Fulton
advised ~r. Ford that he would check into the matter and discuss the
problem with Mr. Brock before Mr. Broe~ began working on the evening
shift. Mr. Fulton made an inspection of the No. 1 Unit. He did not
~ee any cracks.
Mr. Fulton did not observe the roof-bolting machine
in operation, but he had been told that jumps were occurring (Tr.
190-191).
16. Mr. Fulton had gone home on May 21, 1979, before it was
reported to him by telephone that the imminent-danger order had been
issued. Mr. Fulton called Mr. Conrad Bowen, the assistant mine superintendent, and Mr. Ford and Mr. Bowen went to the mine and tried to
convince the inspector that the roof in the No. 1 Unit was not bad
enough to warrant the issuance of an imminent-danger order, but the
inspector adhered to his original position that the top constituted
an imminent danger (Tr. 193-194). On May 22, 1979, Mr. Fulton,
Mr. Bowen, Mr. Miller, and Mr. French, the mine safety director,
went into the No. 1 Unit and made an inspection (Tr. 195). All of
them concluded that the roof was safe. Mr. Fulton said he would work
under the roof if he were a union employee (Tr. 202). Mr. Miller said
he would spend his vacation under the roof (Tr. 247).

1729

17. Mr. Miller tried to get the supervisor of the inspector wno
wrote the imminent-danger order to make a personal examination of the
roof in the No. 1 Unit., but the supervisor declined to do so, explaining that he did not want to become involved in the controversy (Tr.
252). Mr. Miller said that MSHA could force them to do almost anything, but in this instance he was in a position to make a test of
MSHA's action. Therefore, he decided that he would not take any steps
to abate the order because he believed that any work he might do to
abate the conditions alleged in the inspector's order would be interpreted as a concession by applicant that an imminent danger actually
existed (Tr. 222~ 255).
18. Mr. French checked the top in the No. 1 Unit on May 23, 25,
29, and June 11 to determine if the roof was taking weight, cracking
along the'ribs, or breaking up. Mr. French found at the time all
inspections were made that the roof was unchanged and had not as of
June 11 fallen, although a period of 22 days had by then elapsed
since the order was written (Tr. 221). Mr. Bowen also made additional
checks of the roof in the No. 1 Unit after the order was written and
Mr. Bowen authorized other personnel to make such follow-up examinations (Tr. 236). Mr. Bowen found that from 1 to 2 feet of water had
accumulated in the Nos. 1 and 2 entries, but that water had stopped
dripping from the roof of the No. 7 entry (Tr. 242),
19. Mr. Miller doubted that it would be ecomically feasible to
move equipment back into the No. 4 Unit in order to extract the coal
which was abandoned when Mr. Miller decided not to abate the order.
Mr. Miller stated that it would take 4 days or 12 shifts for the
equipment to be moved back and for the necessary timbering to be done
(Tr. 257). · Applicant presented testimony through an engineer and
an accountant who estimated that applicant's decision not to continue mining in the No. 1 Unit resulted in a failure to produce
22,280.5 tons of coal (Tr. 332) at an estimated loss to applicant of
about $103,379 (Tr. 341).
20. Mr. Guy McDowell, respondent's roof-control specialist, presented testimony and several exhibits which show that he has considerable expertise in designing roof bolts and resin-anchoring systems for
trusses. Mr. McDowell has been given credit for technical assistance
rendered to persons performing research and writing scientific
treatises pertaining to roof control (Tr. 271-283). Mr. McDowell
examined the roof in the No. 1 Unit at the request of management and
made an inspection of the roof while accompanied by Messrs. French,
Miller, and Bowen. Mr. McDowell saw no signs of roof failure during
his examination which was made by testing the roof with the sound
and vibration method and by visual observation (Tr. 284-285).
Mr. McDowell also checked 100 of the 2,800 roof bolts in the area
covered by the order and found that 50 bolts had resin on them at the
bottom plate. Mr. McDowell concluded that the resin roof bolts were
anchoring satisfactorily and he believed that the operators of the

1730

roof-bolting machines were inexperienced in using resin bolts and
therefore did not have as much faith in the effectiveness of such
bolts as the past performance of such bolts merited (Tr. 300-302).
21. Mr. McDowell was of the opinion that it would not now be
possible to return to the No. 1 Unit to produce the coal left when
the miners withdrew from the No. 1 Unit on May 21, 1979. The reason
given by Mr. McDowell in support of that opinion was that the water
dropping from the roof had caused the pillars to sink into the fireclay with a resultant weakening of the roof which would make it
unsafe to resume the mining of coal in the No. 1 Unit (Tr. 308).
22. Mr. McDowell made no checks of the roof in the No. 1 Unit
by any methods which were not also used by the operators of the roofbolting machines and by the inspector, that is,. he checked the roof by
the sound and vibration method and by visual observation just as the
inspector and operators of the roof-bolting machines did. Mr. McDowell
stated that if there really were separations in the roof at or near
the extreme end of the 42-inch bolts, the resin would go into the
separations and not produce a proper.bond for supporting the roof.
He also said that one of the signs of roof failure would be cracks in
the roof. Moreover, he agreed that if the V-shaped cracks described
by the inspector really existed, such cracks would be a preliminary
sign of roof failure even when resin bolts are being used (Tr. 321;
324).
23. Mr. Inman, who accompanied the inspector during his examination of the No. 1 Unit, was the safety committeeman at the Ken No. 4
North Mine and he corroborated the inspector's testimony as to the
fact that the drill on the roof-bolting machine was jumping about
2 inches in the Nos. 4, 5, 6, and 7 entries when the drill stem had
penetrated the roof for a distance of about 36 inches (Tr. 350; 356).
Mr. Inman also agreed with the inspect~r's description of the
V-shaped crack in the second crosscut from the face (Tr. 352-354).
24. Mr. Inman was normally the operator of the cutting machine,
but he had been operating a roof-bolting machine prior to the issuance
of the innninent-danger order because Mr. Shemwell, who drilled the
test holes for the inspector, had temporarily stopped operating the
roof-bolting machine because the resin used for anchoring the bolts
had adversely affected his eyes (Tr. 359). Mr. Inman did not object
to installing resin bolts because he recognized that resin bolts are
more effective than conventional bolts (Tr. 360)
~5.
Mr. Inman was afraid to work under the roof in the No. 1 Unit
as it existed just prior to issuance of the imminent-danger order (Tr.
358). Mr. Inman said that resin will exude at the bottom or heads of
resin bolts when no jumps or separations occur near the tops of the
bolt holes, but the last night that Mr. Inman bolted before the
imminent-danger order was issued, the drill stem was jumping in seven

1731

out ot eight holes drilled and resin was coming out at the bottom of
only one or two bolts out of eight (Tr. 376-378). Mr. Inman did not
cause the jumps by deliberately manipulating the roof-bolting machine
to produce that sort of manifestation and Mr. Inman did not believe
that it would be possible for anyone to operate a roof-bolting machine
so as to create an artificial appearance of jumping (Tr. 366-367).
Mr. Inman did not think the jumps could have been caused by the drill
stem's encountering alternate soft and hard places in the roof strata
(Tr. 379-380).

26. Mr. Shemwell, who operated the roof-bolting machine for
drilling test holes for the inspector, agreed with Mr. Inman's and the
inspector's description of the jumps occurring when holes were drilled.
Mr. Shemwell was still at the dinner hole on May 21, 1979, when he
heard someone say that one of the working places had been designated
as an imminent danger by the inspector (Tr. 388-389). Mr, Shemwell
believed that the roof in the No. 1 Unit was definitely bad and he
would have been afraid to have continued working in the unit without
installation of support in addition to the resin bolts they were
installing at the time the imminent-danger order was issued (Tr. 390).
Mr. Shemwell said that every operator of a roof-bolting machine has
experienced hitting hard rocks and soft places in the roof strata and
knows the difference between the slowing down of the drill and speeding up of the drill at such times, as compared with the jumps which
occur when the drill hits separations between the strata as was
occurring in the No. 1 Unit prior to the issuance of the imminentdanger order (Tr. 394-395). Mr. Shemwell agreed with Mr. Inman that
it was very dangerous to work in the No. 1 Unit and he said he would
have joined with any other miners who might have been willing to
decline to work under the roof.
They had the right under the union
contract to refuse work in a dangerous place (Tr. 396).
27. Management had used conventional bolts in the No. 1 Unit
up to May 15, 1979, but management had changed to use of resin bolts
because water had been encountered and tests showed that torque
was being lost on the bolts after they had been installed (Tr.
266). Mr. Shemwell did not think the resin bolts were performing
their intended function with respect to water leaking through the
roof because he could install resin bolts and thereafter find water
dripping off the bottom of them when he came by the same bolts
again during the next mining cycle. In Mr. Shemwell's opinion, if
the resin bolts had been anchoring as was intended, water would not
have been running off the bolt heads (Tr. 401).
28. Mr. Charles W. Howard preferred the position 0£ a laborer
even though he had been working in coal mines for 13 years (Tr. 402;
422). Among other things, he operated the roof-bolting machine and
he had shortly before the imminent-danger order was issued declined
to install resin bolts in the No. 5 entry· because he considered the

1732

roof unsafe. He reported the unsafe roof to Mr. Ford, the unit foreman, and Mr. Ford reported the hazardous condition to the mine manager
(Tr. 407). Mr. Howard agreed with the other operators of roof-bolting
machines that the drills cannot be made to jump by manipulating the
upthrust lever to create such an impression (Tr. 418).
29. Mr. Jerry D. Fulton has been a coal miner for about 11 years
and has been an operator of a roof-bolting machine for approximately
10 years (Tr. 424) •. He agreed with the other operators of roof-bolting
machines that the roof was in fair to good condition in the Nos. 1, 2
and 3 entries, but he believed that the roof in the Nos. 4, 5, 6, and
7 entries was in poor condition because the drilling stem would jump
in those entries. He had had to back up his roof-bolting machine in
the No. 7 entry and install longer roof bolts when the conventional
bolts then being used lost their torque (Tr. 425). Thereafter, management converted to using resin bolts (Tr. 426). Mr. Fulton tested
the roof by using sound and vibration and visual observation and the
roof appeared to be fair in the Nos. 1, 2 and 3 entries and substandard in the Nos. 4, 5, 6, and 7 entries. Mr. Fulton said that on previous occasions when the operators of the roof-bolting machines
believed that they had encountered ~dverse conditions which warranted
use of roof support in addition to roof bolts, management had provided the extra support, but for some reason, when the roof bolters
encountered the jumps and the miners observed cracks in the roof in
the No. 1 Unit shortly before the imminent-danger order was issued,
management refused to provide the extra support the miners thought
was needed (Tr. 428-429).
30. Mr. Jerry Fulton doubted that the resin bolts were anchoring
firmly because he found water dripping off of them on the left side of
the unit after they had been installed for one mining cycle (Tr. 432).
A.

Evidentiary Support for Inspector's Finding that Imminent Danger
Existed
1.

Reasons Given by Inspector for Finding of Imminent Danger

Inspector Dupree issued his imminent danger order (a) because he
found V-shaped cracks extending along the roof in the second crosscut
outby the face (Finding No. 3, supra), (b) because the roof bolters
had found separations in the roof strata (Finding No. 5, supra), (c)
because water was leaking through the roof in steady drops (Finding
No. 3, supra), and (d) because resin was showing at the bottom of
only about one-eighth of the bolts (Finding Nos. 5 and 25, supra).
The inspector could not divorce the danger associated with the
cracked roof from the fact that separations were being encountered
when holes were drilled for installation of roof bolts. The inspector believed that the entire roof on the left side of the No. 1

1733

Unit was unsafe. The water coming through the roof was eroding the
stability of the roof and the lack of resin on the great majority of
the bolt heads was an indication that the resin was being pushed into
the separations or cavities between roof strata instead of hardening
along the bolts so as to provide effective holding power.
2.

UMWA's Witnesses Supported the Inspector's Finding

The inspector's views about the hazardous nature of the roof were
supported by the testimony of four roof bolters who had been working
in the Ken No. 4 North Mine for many years and who had been working in
the No. 1 Unit for more than a week during which the separations continued to occur. The miners could not understand why management had
installed crossbars on other occasions when hazardous roof conditions
were encountered, but declined to do so shortly before tbe imminentdanger order was written on May 21, 1979 (Finding Nos. 23-30, supra)
All four roof bolters believed that separations in roof strata existed
and that the roof needed support in addition to the resin bolts which
were then being used (Finding Nos. 23-24; 26; 28-30, supra).
B.

Applicant's Counterarguments
1.

Applicant's Contention that Actual Separations of Roof
Strata Did Not Exist

Applicant's witnesses attempted to explain the jumps in the drill
stem by claiming that the operators of the roof-bolting machines were
feigning the jumping of the drill stem by applying sudden pressure on
the upthrust lever (Finding No. 10, supra). The operators of the
roof-bolting machines denied that the jumps were artificially created
and disputed applicant's claim that the jumps could be fabricated even
if the operators of the roof-bolting machines had been inclined to do
so (Finding Nos. 25-26 and 28, supra). No one ever explained on the
record what motive the operators of the roof-bolting machines could
have had for creating a false impression that the roof was unsound.
I think that the preponderance of the evidence clearly supports a
rejection of applicant's contention that the operators of the roofbolting machines were feigning the occurrence of jumps when holes
were drilled for installation of roof bolts.
2.

Applicant's Claim that the "Jumps" Were Caused by Drilling
Through Alternate Hard and Soft Roof Strata

Applicant's supervisory witnesses agreed that the occurrence of
jumping by the roof-bolting machines had been reported to them, but
they claimed that the jumps had occurred when the drill stem
alternately encountered very hard rocks or strata followed by very
soft strata (Finding Nos. 13 and 15, supra). Applicant's witnesses
believed that the high pressure under which the drill operates would
cause the drill stem to jump suddenly after it had passed through

L734

hard rocks. The inspector and the operators of the roof-bolting
machines all agreed that the rate of penetration of the drill stem
would be decreased when very hard materials were encountered and
that the normal penetration rate would be resumed after the drill had
passed through hard materials, but the operators of the roof-bolting
machines were all experienced miners and knew the difference in the
reaction of the roof-bolting machines when actual separations are
encountered as opposed to the slowing and speeding up of the drill
when alternate hard and soft materials are encountered (Finding No.
10, supra). Applicant's supervisory witnesses did not actually
operate the roof-bolting machines and some of applicant's supervisors did not actually see the roof-bolting machines operating
(Finding No. 15, supra; Tr. 310). Therefore, X find that the testimony of the miners who operated the roof-bolting machines is more
credible than that of applicant's witnesses with respect to the
question of the existence of actual separations in the roof.
3.

Mr. Brock's Response

The innninent-danger order was written on May 21, 1979, on the
evening shift which was supervised by Mr. Brock. The operator of the
roof-bolting machine had reported the separations in the roof strata
to Mr. Brock and had asked for erection of additional supports, but
Mr. Brock had concluded that the roof did not need additional support.
He had simply reported the matter to the mine manager without taking
any action other than pulling down a few pieces of roof which he
thought were loose. Although Mr. Brock testified that he was having
crossbars installed at the time the innninent-danger order was verbally
issued, that is inconsistent with his own testimony and that of other
witnesses on his shift because they stated that Mr. Brock had gone to
the face area to make an onshift examination and that the inspector
had verbally issued his order to Mr. Brock at the time Mr. Brock
returned from checking the face area (Finding No. 12, supra; Tr. 149150; 159).

4.

Mr. Ford's Conclusion that the Roof Was Unsafe

Mr. Ford was the supervisor of the No. 1 Unit on the day shift
and his testimony shows that the operator of the roof-bolting machine
on his shift on May 21, 1979, encountered such a hazardous place in
the roof that Mr. Ford believed that crossbars should be erected
before resin bolts could be safely installed. Mr. Ford advised the
mine manager that crossbars were needed and Mr. Ford made the follow-·
ing entry in the preshift book: ''All left side of unit--bad top and
water.'' Moreover, Mr. Ford said that he was surprised to hear of the
issuance of the imminent-danger order because the mine superintendent
had given instructions for the miners to withdraw from the No. 1 Unit
and Mr. Ford did not expect any more work to be done in the No. 1
Unit until enough crossbars had been installed to make it "* * * safe
to go back in there" (Finding No. 14, supra).

1735

Mr. Ford's testimony fully supports the issuance of the innninentdanger order because Mr. Ford's description of the No. 1 Unit was
based on his evaluation of conditions in that unit just a few hours
prior to the issuance of the inspector's withdrawal order.
5.

Mr. McDowell's Testimony Was too General in Nature To
Offset the Miners' and Inspector's Opinion that Imminent
Danger Existed

Mr. McDowell was an impressive witness who obviously possessed
considerable expertise in designing and working with resin roof bolts
and trusses. Mr. McDowell inspected the roof in the No. 1 Unit after
the imminent-danger order had been issued. He only checked the condition of 100 resin bolts out of a total of 2,800 in the area covered
by the order. Although the inspector was criticized by applicant for
failure to examine the interior of the holes drilled by the roofbolting machine with a borescope for the purpose of determining
whether separations in the roof strata existed, Mr. McDowell was not
called in by management to make an evaluation by means of a borescope
when the separation~ were first encountered and reported to the unit
foremen and other supervisory personnel. Therefore, when Mr. McDowell
examined the roof in the No. 1 Unit, he checked the roof by means of
sound and vibration and visual observation. Since the inspector and
the operators of the roof-bolting machines had used the same methods
in examining the roof, Mr. McDowell's conclusions to the effect that
the roof was safe does not rise to a higher level of proof than the
opinions of the inspector and operators of the roof-bolting machines
because the inspector and roof bolters had not only checked the roof
with sound and vibration and visual observation, but had also either
operated ·the roof-bolting machine or had watched the roof-bolting
machine in operation, whereas Mr. McDowell had not observed the roofbolting machine in operation (Finding Nos. 20-23; 29, supra).
6.

The Cracks and Water Seepage Were Serious

Respondent's supervisory witnesses avoided making statements to
the effect that no cracks existed in the roof. They either stated
that they did not see cracks, or minimized the cracks they saw, or
said that they did not examine the entries in which the cracks may
have existed. Additionally, Mr. McDowell stated that if the cracks
did exist, their existence would be a sign of roof failure. Inasmuch
as the inspector, Mr. Inman, and Mr. Brock all agreed that the cracks
existed, the inspector's conclusion that an imminent danger existed
is supported by Mr. McDowell's testimony because Mr. McDowell believed
that occurrence of cracks would be a preliminary sign of roof failure in a unit where resin bolts were being used (Finding Nos. 22-23,
supra; Tr. 157).
The significance to be attached to the fact that water was seeping through the roof is considerable. Although some of applicant's

1736

supervisory witnesses claimed that water had stopped dripping from
the roof by June 11, Mr. Inman said that water was continuing to drip
from the roof when he last made an examination just outby the area
covered by the imminent-danger order (Finding No. 18, supra; Tr. 371).
Regardless of whether the water had stopped dripping by June 11, 1979,
it is a fact that more than a foot of water had accumulated in some
places in the area covered by the order and it was Mr. McDowell's
opinion that the water had allowed the pillars to sink and had
weakened the roof sufficiently to make it unsafe for miners to
return to the No. 1 Unit to work even if it had been economically
feasible to do so (Finding No. 21, supra).
C.

Legal Support for Inspector's Finding of Imminent Danger

The concept of imminent danger is fully discussed by the courts
in the following decisions: Eastern Associated Coal Corp. v. Interior
Board of Mine Operations Appeals, 491 F.2d 277 (4th Cir. 1974); Freeman
Coal Mining Co. v. Interior Board of Mine Operations Appeals, 504 F.2d
741 (7th Cir. 1974); and Old Ben Coal Corp. v. Interior Board of Mine·
Operations Appeals, 523 F.2d 25 (7th Cir. 1975).' In the Old Ben
opinion, supra, the court reaffirmed the holding in its prior Freeman
opinion to the effect that imminent danger may be said to exist if it
can be reasonably expected that injury or death would occur before the
hazardous condition can be corrected if normal mining procedures are
continued. The court agreed with the former Board that an irrnninent
danger exists if a reasonable man would conclude that the feared accident is just as likely as not to occur before the condition.can be
corrected.
In light of the court's discussions of the definition of imminent
danger, I conclude that the inspector reasonably found on May 21, 1979,
that an imminent danger existed in the No. 1 Unit of the Ken No. 4
North Mine. The testimony of the inspector and of four roof bolters,
who had been working for many years in the Ken No. 4 North Mine,
unequivocally supports findings that the resin bolts were not anchoring thoroughly, that water was seeping through the roof strata, that
resin was not appearing at the bottom of the bolts to show thorough
adhesion along the full length of the bolts, and that ominous cracks
had appeared in the roof of the second crosscut from the face in
several locations. The aforesaid hazardous conditions, when coupled
with the fact that the roof outby the area covered in the imminentdanger order had previouisly required rebolting with longer bolts than
were normally used, support the inspector's belief that the roof could
have fallen at any time. The large number of unintentional roof falls
which have historically occurred in the Ken No. 4 North Mine show that
the roof is generally hazardous and should be supported with the
crossbars requested by the operators of the roof-bolting machines when
separations, cracks, water seepage, and other signs of ro~ failure
are encountered and reported to management by both the operators of
the roof-bolting machines and by the unit foremen, especially Mr. Ford

1737

who had made an entry in the preshift book just a few hours before
the order was issued indicating that the roof was hazardous in the
area covered by the order.
The Seventh Circuit also noted in its Old Ben opinion that an
inspector has a very difficult job because he is primarily concerned
about the safety of men, while the operator is concerned about production and profit. The court indicated that an inspector should be
supported unless he has clearly abused his discretion (523 F.2d at
31). The court said that an inspector cannot wait until the danger
is so immediate that no one can remain in the mine to correct the
condition, nor can the inspector wait until an explosion or fire has
occurred before issuing a withdrawal order (523 F.2d at 34). Following the co~rt's reasoning, the MSHA inspector in this proceeding
could not wait until he saw pieces of roof falling on the miners
before determining that miners should be withdrawn from the No. 1
Unit until crossbars could be installed.
Applicant seemed to believe that if an imminent danger had really
existed, the inspector would not have remained in the No. 1 Unit long
enough for 35 test holes to be drilled for the purpose of determining
the areal extent of the imminent danger (Tr. 60). The inspector hardly
had any choice but to remain in the No. 1 Unit until the test holes
had been drilled because section 107(a) of the Act provides that if an
imminent danger is found to exist, the inspector "* * * shall determine the extent of the area of such mine throughout which the danger
exists. 11 Since neither the inspector nor anyone else could see up into
the roof to determine the extent of the separations in the roof strata,
the inspector could not have determined the area "throughout which the
danger exists'' if he had not had the test holes drilled for the purpose of determining the area·l extent oJ the imminent danger. Cf.
Old Ben, supra at 32-33.
Ultimpte Findings and Conclusions
(1) Pursuant to the parties' stipulations, Applicant Peabody
Coal Company is subject to the provisions of the Act and to the regulations promulgated thereunder (Tr. 6; 8-9).
(2) The preponderance of the evidence introduced in this proceeding shows that an imminent danger existed on May 21, 1979, in the
No. 1 Unit of the Ken No. 4 North Mine and, consequently, Withdrawal
Order No. 795972 issued May 21, 1979, should be affirmed and Peabody
Coal Company's Application for Review should be denied.
(3) For the purpose of issuing this decision, all civil penalty
questions are severed from the issues raised by the Application for
Review; if MSHA files a Petition for Assessment of Civil Penalty with
respect to the violation of section 75.200 cited in Order No. 795972,
as modified June 15, 1979, that civil penalty case should be forwarded

1738

to me for decision on the basis of the record already made in this
proceeding.
WHEREFORE, it is ordered:
(A) The Application for Review filed May 29, 1979, by Peabody
Coal Company in Docket No. KENT 79-107-R is denied and Withdrawal
Order No. 795972 dated May 21, 1979, is affirmed.
(B) The civil penalty questions consolidated for hearing in this
proceeding are severed from the issues raised by the Application for
Review; if MSHA files a Petition for Assessment of Civil Penalty with
respect to the alleged violation of 30 CFR 75.200 cited in Order No.
795972, as moµified on June 15, 1979, that civil penalty case should
be forwarded to me for decision on the basis of the record already
made in this proceeding.

~ C. <x8*--lli2 ..

Richard c. Steffey~
Administrative Law Judge
Distribution:
Thomas R. Gallagher, Esq., Attorney for Peabody Coal Company,
P.O. Box 235, St •. Louis, MO 63166 (Certified Mail)
Joseph M. Walsh, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington,
VA 22203
Joyce A. Hanula, Attorney for United Mine Workers of America,
900 - 15th Street. NW., Washington, DC 20005 (Certified Mail)

1739

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

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

Civil Penalty Proceeding
Docket No. HOPE 78-333-P
A/O No. 46-02140-02005 S
No. 5 Preparation Plant

BUFFALO MINING COMPANY,
Respondent
DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
U.S. Depqrtment of Labor, for Petitioner;
James w. St. Clair, Esq., Marshall and St. Clair,
Huntington, West Virginia, for Respondent.

Before:

Judge Cook

I.

Procedural Background

On April 19, 1978, the Mine Safety and Health Administration
(MSHA) filed a petition for assessment of civil penalty against
Buffalo Mining Company in the above-captioned proceeding. This
petition, filed pursuant to section llO(a) of the Federal Mine
Safety and Heal th Act of 1977, 30 U.S. c. "§ 820(a) (1978) (1977 Mine
Act), alleged violations of 30 CFR 77.1401, 77.1402-1, 77.1403(a),
and 77.404(a). These alleged violations are embodied in an imminent
danger order of withdrawal issued pursuant to section 104(a) of the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 814(a)
(1970) (1969 Coal Act), against Buffalo Mining Company subsequent to
a fatal injury suffered by an employee of Lester Construction Company, an independent subcontractor, during the installation of a
c-0al stacker on mine property owned by Buffalo Mining Company.

An answer was filed by Buffalo Mining Company on May 17, 1978.
Notices of hearing were issued on May 19, 1978, and July 21, 1978.
On August 3, 1978, Buffalo requested a continuance, which request was
granted by an order dated August 14, 1978. The hearing was held on
October 24, 1978, and October 25, 1978, in Charleston, West Virginia.
Representatives of both parties were present and participated.

1740

A schedule for the submission of posthearing briefs was agreed
upon at the conclusion of the hearing, but a delay in the receipt of
transcripts forced a revision of the schedule. Buffalo submitted
its posthearing brief on February 22, 1979. MSHA submitted its posthearing brief on March 16, 1979. Buffalo submitted its reply brief
on April 10, 1979. Although MSHA did not file a reply brief, it submitted a letter on April 10, 1979, wherein it addressed certairi statements contained in Buffalo's reply brief.

II.

Violations Charged
Order No. 6-0012 (1 BA), November 26, 1976, 30 CFR 77.1401
30 CFR 77.1402-1
30 CFR 77.1403(a)
30 CFR 77.404(a)

III.

Evidence Contained in the Record
(A)

Stipulations

During the course of the hearing, counsel for both parties
entered into stipulations which are set forth in the findings of
fact, infra.
(B)

Witnesses

MSHA called as its witnesses James E. Davis, Jesse P. Cole,
Birkie Allen, and Kennis A. Mullins, MSHA inspectors; and Tony D.
Travis, a mechanical engineer for the MSHA Technical Support Group
in Beckley, West Virginia.
Buffalo called as its witnesses Edgar M. Wode, the assistant
sales manager at the Walker Machinery Company in Belle, West Virginia;
Mayo Lester, who identified himself as the owner of Lester Construction
Company; Travis Ellison, Jr., the safety director for Lester Construction Company; and W. R. Counts, a supervisor employed by Lester Construction Company.
(C)

Exhibits
(1)

MSHA introduced the following exhibits into evidence:

(a) M-1 is a computer printout compiled by the Office of
Assessments listing Buffalo's history of paid assessments for violations occurring at the No. 5 Preparation Plant.
(b) M-2 is a copy of Order No. 6-0012 (1 BA); November 26,
1976, 30 CFR 77.:401, 77.1402-1, 77.1403(a), and 77.404(a).

1741

(c) M-2-A is a typewritten copy of the "condition or practice" paragraph of M-2.
(d)
June 1, 1977.

M-3 is the "fatal machinery accident" report dated

(e)

M-4 is a modification of M-2.

(f)

M-5 is a termination of M-2.

(g) M-6 is a copy of a legal identity report relating to
the No. 5 Preparation Plant. (Received into evidence by an order
dated December 14, 1978.)
(h)

M-7 is a photograph.

(i) M-8 is a two-page extract from M 11.1-1960 U.S.A.
"Standard Specifications for and Use of Wire Ropes for Mines."
(j) M-9 is a wire rope analysis and tensile test report
compiled by the Denver Technical Support Center.

(k)

M-10 is a photograph.

(1) M-11 is a schematic of the accident scene, prepared by
Buffalo at the request of the Mining Enforcement and Safety Administration (MESA) accident investigators.
(m)

M-12 is a photograph.

(2)

Buffalo introduced the following exhibits into

(a)

0-1 is a purchase order.

evidence:

(b) 0-2 is a copy of Lester Construction Company's safety
rules in effect on November 26, 1976.
(c) 0-3 is a Lester Construction Company memorandum bearing the signatures of Lester Construction Company employees.
(d) 0-4 is a copy of M 11.1-1960 U.S.A. "Standard Specifications for and Use of Wire Ropes for Mines."
IV.

Issues

Two basic issues are involved in the assessment of a civil
penalty: (1) did a violation of the Act occur, and (2) what amount
should be assessed as a penalty if a violation is found to have
occurred? In determining the amount of civil penalty that should

1142

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 Buffalo Mining Company was the operator of the No. 5
Preparation Plant (Tr. 13).
(2) The No. 5. Preparation Plant is located near Saunders, in
Logan County, West Virginia (Tr. 13-14).
(3) The crew employed by Lester Construction Company, under a
subcontract with the Long-Airdox Company, and under the supervision
of foreman W. R• Counts, began work at 7 a.m. on Friday, November 26,
1976 (Tr. 19).
(4) Exhibit M-8 is M 11.1-1960 U.S.A. "Standard Specifications
for the Use of Wire Ropes for Mines" (Tr. 232).
(B)

Motion to Dismiss

The Respondent, Buffalo Mining Companf (Buffalo), moved for dismissal of the proceeding on the grounds that the owner of mine property cannot be held responsible for violations of mandatory safety
standards created by independent subcontractors performing work on
such mine property where the evidence fails to establish that the
mine owner either caused the violations or possessed a right to
direct the independent subcontractor's employees in the performance
of their t.asks (Tr. 431, 445-446, 557). Statements in support of
this motion are contained in the Respondent's posthearing submissions (Respondent's Posthearing Brief, pp. 15-22; Respondent's Reply
Brief).
Buffalo was the operator of the No. 5 Preparation Plant at all
times relevant to this proceeding (Exh. M-6). The preparation plant
produced approximately 5,800 tons of coal daily (Tr. 404-406, Exh.
M-3). Buffalo is a West Virginia corporation (Exh. M-6). Both
before and after the accident, Buffalo was a subsidiary of the
Pittston Company (Exh. M-6). The legal identity report filed on
April 6, 1973, lists the Pittston Company's address as 4514 Pan Am

1743

Building, New York, N.Y. 10017 (Exh. M-6), while the change notice
filed on November 2, 1977, lists Pittston's address as One Pickwick
Plaza, Greenwich, Connecticut 06830 (Exh. M-6) • . After the coal is
processed by the No. 5 Preparation Plant, it is loaded aboard
Chesapeake and Ohio Railway coal cars for transportation to various
points (Tr. 107).
Buffalo entered into an agreement with Long-Airdox Company for
the purchase and installation of a raw coal storage and conveyor
system on mine property owned by Buffalo. (Exh. M-3 at p. 3, Tr. 342,
420). Long-Airdox Company subcontracted the project to build the
raw coal silo or stacker to Lester Construction Company (Exhs. M-3
at p. 3, 0-1, Tr. 420, 447).
A crane owned by Lester Construction Company and operated by one
of Lester's employees was involved in an accident on November 26, 1976,
during the course of the construction of the raw coal stacker (Tr. 123,
450). Buffalo's employees never worked on the project (Tr. 451, 523),
and Buffalo had no supervisory control over the job site (Tr. 473,
523). Buffalo was cited with several alleged violations of the Code
of Federal Regulations relating to mining safety in connection with
the operation of the crane at the time of the accident (Exh. M-2).
The Federal Mine Safety and Health Review Commission (Commission)
recently addressed the respective liabilities of both coal mine owners
and independent contractors performing work on mine property in Cowin
and Company, Inc., Docket No. BARB 74-259, IBMA 75-57, 1979 OSHD par.
23,456 (FMSHRC, filed April 11, 1979), and Republic Steel Corporation,
Docket No. IBMA 76-28, 77-39, 1979 OSHD par. 23,455 (FMSHRC, filed
April 11, 1979).
In Cowin, the Commission concluded that an independent contractor performing work on coal mine property is an "operator" 1/ of a
"coal mine" 2/ under the 1969 Act for the' reasons set forth-in
Association of Bituminous Contractors v. Andrus, 581 F.2d 853, 861862 (D.C. Cir. 1978), and Bituminous Coal Operators' Association,
Inc. v. Secretary of Interior, 547 F.2d 240, 244-246 (4th Cir. 1977).

1/

Section 3(d) of the 1969 Act provides:
"'Operator' means any owner, lessee, or other person who operates, controls, or supervises a coal mine."
2/ Section 3(h) of the 1969 Act provides:
"'Coal mine' means an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations and other property, real or personal, placed upon, under, or
above the surface of such land by any person, used in, or to be used
in, or resulting from, the work of extracting in such area bituminous
coal, lignite, or anthracite from its natural deposits in the earth
by any means or methods, and the work of preparing the coal so
extracted, and includes custom coal preparation facilities."

1744

In Association of Bituminous Contractors v. Andrus, supra,
the Court observed that under section 109(a) of the 1969 Coal Act,
30 U.S.C. § 819(a)(l) (1970), "the operator of a coal mine in which
a violation occurs" is liable for civil penalties. The "operator"
may be the "owner" of the mine, a "lessee" or an "other person." In
this context, the term "other person" must be read ejusdem generis
to refer to other similar persons "of like kind and character to
the designated 'owner[s or] lessee[s] designated' ... Thus, "other
persons" must be similar in nature to owners or lessees, and would
include independent contractors who operate, control or supervise a
"coal mine," as the term "coal mine" is defined in the statute.
An "other person" does not have to supervise the entire coal mine
in order to be an "operator." All that is required is that they have
control or supervision over one or more of the areas or facilities
designated in the statutory definition of a coal mine. Coal mine construction operations are under the "supervision" of the construction
company, thus bringing the independent contractor within the scope of
the phrase "ot,her person" and thereby defining the contractor as an
"operator."

The District Court had reached a contrary conclusion, holding
that independent contractors could not be "operators" within the
meaning of the statute because, in the District Court's view, only
one party could actually be operating, controlling, or supervising
the mine. The Court of Appeals, in disagreeing with this position,
stated that there must be some cases where the person who operates,
controls or supervises,the mine is not the owner, and that in such
cases, the definition of "operator" must encompass both the owner
and such other person.
In Bituminous Coal Operators' Association, Inc. y. Secretary of
Interior, supra, the Court held that construction companies must
observe the health and safety standards set forth in the 1969 Coal
Act and the regulations implementing them. In reaching this conclusion, the Court turned to the statutory definition of a "coal mine,"
and stated that: "When a contractor sinks a mine shaft, excavates a
tunnel, or builds a coal preparation plant, it is constructing a
facility 'to be used in' the work of extracting or processing coal."
547 F.2d at 245.
Additionally, the Court observed that an independent contractor's
employees are frequently subjected to the same hazards as miners,
causing the Court to conclude that Congress did not implicitly exclude
such employees from the 1969 Coal Act's protection.
The Court then found that independent contractors fall within
the definition of an "operator," and can therefore be held liable for
failing to comply with the health and safety standards.

1745

In Republic Steel Corporation, _supra, the Commission held that
a mine owner can be held responsible for violations of the 1969 Coal
Act created by its independent contractors even though none of the
owner's employees were exposed to the violative conditions and the
owner could not have prevented the violations.
Previous decisions by the Interior Board of Mine Operations
Appeals (Board) had taken a different approach. The Board had recognized that both the coal mine owners and the independent contractors
fell within the 1969 Coal Act's definition of an "operator," but held
that only the operator responsible for the violation and the health
and safety of the endangered employees could be held liable.
Affinity Mining Company, 2 IBMA 57, 80 I.D. 229, 1971-1973 OSHD par.
15,546 (1973); Laurel Shaft Construction Company, Inc., 1 IBMA 217,
79 I.D. 701, 1971-1973 OSHD par. 15,387 (1972). Subsequent Board
cases modified this approach by holding the mine owner liable for an
independent contractor's violations of the health and safety standards
where the owner's employees were endangered by the violation and the
owner could have prevented the violation with a minimum degree of
diligence. Armco Steel Company, 6 IBMA 64, 83 I.D. 77, 1975-1976
OSHD par. 20,512 (1976); West Freedom Mining Corporation, 5 IBMA 329,
82 I.D. 618, 1975-1976 OSHD par. 20,230 (1975); Peggs Run Coal Com~, 5 IBMA 175, 82 I.D. 516, 1975-1976 OSHD par. 20,033 (1975).
This approach, described by the Commission as the "endangerment/
preventabili ty test," was reevaluated by the Commission in Republic_
Steel Corporation, supra, in light of the United States Court of
Appeals for the District of Columbia and Fourth Circuit's decisions
in Association of Bituminous Contractors v. Andrus, supra, and
Bituminous Coal Operators' Association, Inc. v. Secretary of Interior,
supra.
The Commission held that, as a matter of law under the 1969 Coal
Act, "an owner of a coal mine can be held responsible for any violations of the Act committed by its contractors." The Commission was
unable to find any provision in the 1969 Coal Act requiring that any
consideration be given to the owner's ability to prevent the violations as a qualification for holding the owner liable for such
violatiol).S•
The fact that the only employees endangered by the violation are
the independent contractor's employees does not prevent the owner from
being held responsible for such violations arising on mine property.
According to the Commission:
The Act seeks to protect the safety and health of
all individuals in a coal mine. 30 u.s.c. §§ 80l(a) and
802(g). In order to achieve this goal, the Act places
a duty on each operator to comply with its provisions.
30 u.s.c. § 803. The purpose of the Act is not served
by interpreting these provisions to allow an operator to

1746

limit the benefit of the protection it affords to its
own employees. * * * The duty of an operator, whether
owner or contractor, extends to all miners. * * *
It bears emphasis that the miners of an independent
contractor are invited upon the property of the mine
owner to perform work promoting the interests of the
owner. A mine owner cannot be allowed to exonerate
itself from its statutory responsibility for the
safety and health of miners merely by establishing a
private contractual relationship in which miners are
not its employees and the ability to control the safety
of its workplace is restricted.
It should be pointed out that since an independent contractor
performing work on coal mine property is an "operator" of a "coal
mine," as those terms are defined in the 1969 Coal Act, the employees
of such contractors are "miners" within the meaning of section 3(g) of
the 1969 Coal Act, 30 u.s.c. § 802(g) (1970). The term "miner" is
therein defined as "any individual working in a coal mine."
Cowin and Company, Inc., supra, and Republic Steel Corporation,
supra, when read together, establish a rule of law whereby either the
coal mine owner or the independent contractor performing work on coal
mine property, may be held liable for any health or safety violation
of the 1969 Coal Act committed by the independent contractor.
Accordingly, on the facts and the law as set forth herein, the
Respondent's motion to dismiss is DENIED.
(C)

Occurrence of Violations

At approximately 10:20 a.m. on Friday, November 26, 1976,
Mr. James D. Grant, an employee of the Lester Construction Company,
sustained a fatal injury when a wire rope on a Lorain 1971 MC 30-H
Moto Crane separated causing Mr •. Grant to fall approximately 70 to
75 feet to. the ground. The crane was owned by the Lester Construction Company and was being used to hoist two men to the top of a raw
coal stacker being installed at the No. 5 Preparation Plant owned by
the Buffalo Mining Company when the accident occurred. The second
man, Mr. Wayne Taylor, who was also an employee of the Lester Construction Company, escaped injury. Subsequent thereto, MSHA inspectors were summoned to the scene of the accident and conducted a fatal
accident investigation (Tr. 101, 121, 123, 160, 410, 524, 544, Exh.
M-3). The crane involved in the accident had been obtained from the
factory of the Lorain Crane Company thru the Walker Machinery Company
of Belle, West Virginia (Tr. 64, 338).
MSHA inspector James E. Davis testified that Mr. Taylor was
interviewed in connection with the fatal accident investigation and

1747

that he gave.a description of what had occurred (Tr. 108, 120). The
statements made by Mr. Taylor, in conjunction with the testimony of
the witnesses at the hearing, establish the circllinstances surrounding
the accident as set forth below.
The employees of the Lester Construction Company on the job site
were under the supervision of Mr. W. R. Counts, a foreman employed by
the Lester Construction Company (Tr. 130, 522-525). When the
employees started work on the day in question, they began by installing a belt on a new conveyor trestle that had been attached to the
stacker tube (Tr. 525-527). Mr. Counts testified that after the belt
had been installed, he instructed Messrs. Taylor and Grant to get
their bolts and belts from the tool trailer and go to the top of the
stacker tube (Tr. 528, Exh. M-3). Mr. Taylor and Mr. Grant were
hoisted to the top of the stacker in a basket, or cage, attached to
the crane. The cage was approximately 4 feet in length and 3 feet
in width. It was constructed of angle iron with a floor made from
metal grating. It had no roof or cover (Tr. 127-128).
According to Inspector Davis, Mr. Taylor stated that when he
and Mr. Grant observe<l the cage being hoisted up in close proximity
to the "shed" wheel, they started shouting to the crane operator to
stop. When he looked at the "overhaul" ball ]._/ a second time, the
rope was still being hoisted. Therefore, he jumped onto the platform
at the top of the stacker. Simultaneously, the "overhaul" ball was
pulled into the jib boom head sheave causing the rope to break.
Mr. Taylor further stated that Mr. Grant jumped and thereby managed
to grab hold of the end of the jib for a few moments before falling
to the ground (Tr. 134-135, Exh. M-3).
Information provided to Inspector Davis by Mr. Mario Varrassi,
the safety director for the Buffalo Mining Company (Tr. 393), indicated that Mr. Grant was transported to the Man Appalachin Regional
Hospital where he was pronounced dead on arrival between 11 and
11:20 a.m. (Tr. 410, 423-424, Exh. M-3).
According to Inspector Davis, Mr. Dent, the crane uperator, testified during the interview (Tr. 136) that the cage blocked his view
and prevented him from seeing the head sheave of the crane. Mr. Dent
also stated that an observer was not provided to watch the hoisting
operation so as to signal him to stop the hoist when the cage had
reached the top of the "shed" wheel (Tr. 138).

l_/

An overhaul ball is a counterweight connected to the end of a
crane rope and serves to maintain tension on the rope (Tr. ·133-134).
The term "overhaul ball" was used synonymously with the term "headache
ball" (~r. 134). At one point in his testimony, Inspector Davis
referred to the "overhaul" or "headache" ball as a "counterweight."
(Compare Tr. 134 with Tr. 135.)

1748

The testimony reveals that when the accident occurred Mr. Counts
was standing on a hill adjacent to the job site watching employees of
the Buffalo Mining Company take the old belt apart (Tr. 128-130, 529530, Exh. M-11). Mr. Counts testified that he saw Mr. Grant fall,
but indicated that he did not see what had occurred prior to the fall
(Tr. 530).
MSHA inspector Birkie Allen visited the job site after the accident (Tr. 212), examined the crane, and thereupon issued the subject
imminent danger order of withdrawal. He cited the Respondent for
violations of four sections of the Code of Federal Regulations (Exh.
M-2, Tr. 213). The order states, in pertinent part, as follows:
77.1401. The Lorain 1971, MC30-H Moto Crane used
for manhoisting was not equipped with an overspeed,
overwind and automatic stop controls.
77.1402-1. The American National Standards
Institute "Specifications for the Use of Wire Ropes
for Mines M 11.1-1960 was not used as a guide in the
selection and use of the wire rope used to hoist men
on the Lorain MC 30-H Moto Crane.
77.1403(a). The daily examination of the Lorain
MC 30-H Moto Crane used as a manhoist was not made or
recorded.
77.404(a). The hoisting facilities used to transport
men (Lorain MC 30-H Mota Crane) was not being maintained
in a safe operating condition in that the wire rope was
severely damaged beginning near the wedge socket and
extending about 50 feet along the rope (Numerous broken
wires).
It was a normal work procedure to ride the crane.
The construction work was being done by Lester
Construction Company.
This was issued during a fatal investigation.
(Exhs. M-2, M-2-A).
30 CFR 77.1400 and 30 CFR 77.1401 provide as follows:
Subpart 0 - Man Hoisting
§

77.1400

Man hoists and elevators.

The standards set forth in this Subpart O, apply only
to hoists and elevators, together with their appurtenances,
that are used for hoisting men.

1749

~

77.1401

Automatic controls and brakes.

Hoists and elevators shall be equipped with overspeed, overwind, and automatic stop controls and with
brakes capable of stopping the elevator when full loaded.
The crane was being used as a manhoist when the accident occurred
(Exh. M-3, Tr. 120-121, 131). In fact, the cage, or basket, in which
the men were riding was constructed for the express purpose of being
attached to the crane for use in manhoisting (Tr. 523). It was constructed for such purpose on instructions from Mr. Counts, Lester's
foreman on the job site (Tr. 523). The evidence in the record shows
that the crane had been used as a manhoist throughout the installation
of the coal stacker, and that this procedure was authorized by the
Lester Construc,tion Company (Tr. 266, 462, 468, 472, 502-503, 508,
523-524).
A conflict is present in the testimony as to whether a suggestion had been made to Messrs. Taylor and Grant on November 26, 1976,
expressly authorizing them to use the crane as a manhoist. According
to Inspector Davis, Mr. Taylor stated that Mr. Counts suggested using
the crane as an avenue of transport to the top of the stac~er on the
day of the accident (Tr. 131, Exh. M-3). Mr. Counts denied this at
the hearing (Tr. 529). I am unable to accord great probative value
to the hearsay statement of Mr. Taylor in view of the fact that
Mr. Counts' testimony is in direct conflict with the statement of
the hearsay declarant. However, the resolution of this conflict in
the testimony in favor of the Respondent as to whether Mr. Counts
specifically told Messrs. Grant and Taylor to use the cage on the
day in question does not resolve the real issue as to whether the men
were authorized to use the cage since the evidence in the record
unmistakably points to the conclusion that the use of the crane as a
manhoist was authorized by the Lester Construction Company throughout
the installation of the stacker.
The Respondent's witnesses attempted to establish that this
authorization was no longer in effect on November 26, 1976, because
the belt line and adjacent walkway had been installed, thus providing
an alternative route to the top of the stacker (Tr. 461-462, 469,
508, 524, 529). However, the various accounts given by the Respondent's witnesses contain certain inconsistencies indicating that this
authorization was still in effect on November 26, 1976.
Some testimony was elicited with respect to two adjacent wooden
boards used to connect the walkway to the adjacent hillside (Tr. 459460). According to Mr. Lester, the boards had been installed on
either the morning of November 26, 1976, the day of the accident, or
the previous day (Tr. 460). However, he indicated that they were
most likely installed on the morning of November 26, 1976 (Tr. 460).
The boards were approximately 10 feet long (Tr. 460). Mr. Counts

1750

testified that he had last observed someone riding in the cage approxiimately 5 days prior to the accident (Tr. 534), while Mr. Lester testified that the cage had been removed from the crane 3 days earlier,
..!.·~·,upon completion of.the belt line and walkway (Tr.
461-462).
But the inescapable conclusion remains that the use of the crane as
a manhoist was clearly authorized at least until the morning of
November 26, 1976, because, prior to the installation of the two
wooden boards, it remained the sole means of access to the top of
the stacker. Furth~r, there is no indication that any of Lester's
employees had been specifically informed prior to the accident that
company authorization to use the crane for manhoisting had been
rescinded, if it in fact had.
In fact, Mr. Counts specifically stated that he did not direct
Taylor and Grant "in any manner" as to how to get to the top of the
stacker (Tr. 529), a statement with overriding implications. The
inferences drawn from the evidence in the record reveal, as noted
above, that authorization to use the crane as a manhoist could not
as a practical matter be rescined, until the morning of November 26,
1976. Prior to the installation of the boards, there was no other
means of reaching the top of the stacl:.er except via the crane because
there would have been no means of crossing the abyss separating the
hillside from the walkway. There is no indication that any employee
of Lester was on the job site on November 26, 1976, who possessed
more authority than Mr. Counts (Tr. 523). As such, he would have
been the individual most likely to inform the employees of a change
in company policy with regard to using the crane as a manhoist. The
fact that he did not direct Messrs. Grant and Taylor in any manner as
to how to get to the top of the stacker indicates that any change
in company policy, if there was any, had not been effectively communicated to those men.
Mr. Ellison, Lester's safety director, testified that individuals
who violate company safety rules are subjected to company-impused discipline (Tr. 515). First offenders are suspended for 3 days, while
recidivists are fired (Tr. 515). If company authorization to use the
crane as a manhoist had been rescinded, then Mr. Dent, the crane operator (Tr. 340, 450), and Mr. Taylor, the employee riding in the cage
who escaped injury (Exh. M-3), should have at least been suspended for
3 days. Yet, they were not suspended (Tr. 518, 519). In fact, no
consideration was given to suspending them after the accident (Tr.
521).
The existence of these disciplinary rules is highly probative for
an additional reason. Statements made by Mr. Counts reveal that from
his vantage point on the adjacent hill he could have seen the activities occurring on the job site if his attention had been directed
there. It can be inferred that the employees could also see him. I
find it highly improbable ·that the three employees directly involved
in the accident would knowingly violate company safety rules in the

1751

presence of the foreman and thereby intentionally subject themselves
to company disciplinary proceedings.
Accordingly, it is found that Lester Construction Company not
only condoned the use of the crane as a manhoist, but also authorized
such use. Such authorization was either still in effect on the date
of the accident, or, if it had been rescinded, the change in company
policy had not been effectively communicated to Messrs. Dent, Grant
and Taylor.
The evidence also establishes that the crane was not equipped
with overspeed, overwind, or automatic stop controls (Tr. 214-215,
379). Furthermore, the Respondent conceded at the hearing that the
crane was not so equipped (Tr. 8). Accordingly, it is found that a
violation of 30 CFR 77.1401 has been established by a preponderance
of the evidence.
As relates to the second alleged violation, 30 CFR 77.1402-1
provides as follows:
§

77 .1402-1

Ropes and cables; specifications.

The American National Standards Institute "Specifications for the Use of Wire Ropes for Mines," M 11.1-1960,
or the latest revision thereof, shall be used as a guide
in the use, selection, installation, and maintenance of
wire ropes used for hoisting.
According to inspector Birkie Allen, a specialist in hoisting, ele-vators, and major construction (Tr. 208), the wire rope on the crane
was a five-eighths-type, 18 by 7 classification-type rope (Tr. 233234). The M 11.1-1960 U.S.A. "Standard 9pecifications for the Use
of Wire Ropes for Mines" (Exhs. M-8, 0-4) specifies both the recommended and minimum tread diameters for sheaves and drums (Exhs. M-8,
0-4, Table 36, Columns 1 and 2; Tr. 233-234). The minimum standards
require the tread diameters of the sheaves and drums to be 34 times
the rope diameter for an 18 by 7 classification (Exhs. M-8, 0-4,
Table 36, Column 2; Tr. 233-234). Therefore, according to Inspector Allen, the sheaves and drums should have had a tread diameter
of approximately 22-1/4 inches in order to comply with the minimum
-requirements (Tr. 234). However, a recomputation based on the
formula set forth in Exhibits M-8 and 0-4, Table 36, Column 2,
for an 18 by 7 classification reveals that the precise figure is
21-1/4 inches.
The crane's sheave had a 12-inch inside tread diameter, and its
drum was approximately 14 inches in diameter (Tr. 234). Inspector
Allen determined the sheave diameter by measuring it (Tr. 234). Since
rope remained on the drum, the drum diameter was determined by checking the crane manufacturer's specifications (Tr. 234-235). He used a

1752

caliper to determine that the hoist rope was five-eighths of an inch
in diameter (Tr. 298). The inspector testified that the minimum standards had not been met because the sheave and the drum were smaller
than 34 times the rope diameter (Tr. 234).
The Respondent stressed both at the hearing and in its posthearing brief that it does not matter whether the rope failed to meet the
standards as long as the rope was safe (Tr. 229-230; Respondent's
Posthearing Brief, p. 9). However, this is not material to the question of whether a violation occurred.
Accordingly, it is found that a violation of 30 CFR 77.1402-1 has
been established by a preponderance of the evidence.
As relates to the third alleged violation, 30 CFR 77.1403(a) provides as follows:
§

77.1403

Inspection and maintenance.

(a) Hoists and elevators shall be examined daily
and such examination shall include, but not be limited to,
the following:
(1) A·visual examination of the rope for wear,
broken wires, and corrosion, especially at excessive
strain points;
(2)
defects;

An examination of the rope fastenings for

(3) An examination of the elevator for loose,
missing, or defective parts;
(4) An examination of sheaves for broken flanges,
defective bearings, rope alignment, and proper lubrication; and
(5) An examination of the automatic controls and
brakes required under § 77.1401.
As regards the daily examinations of the crane, Mr. Lester testified
that the crane operator had been instructed, via letters and posted
bulletins, to examine the crane each day prior to starting the day's
work (Tr. 463). Inspector Allen, who arrived on the job site shortly
after the accident, asked Mr. Dent, the crane operator, whether he
had made a daily examination of the crane (Tr. 263). According to
Inspector Allen, Mr. Dent stated that although he normally would have
made such examinations, he had not made any "since he had been on
this job" (Tr. 263). Inspector Allen asked Mr. Counts whether the
Lester Construction Company kept any inspection records pertaining

1753

to the crane used for manhoisting (Tr. 263). He testified that
Mr. Counts was unable to produce one (Tr. 263). According to Inspector Allen, Mr. Counts stated that the company had no such record,
that he depended on the crane operator and that the crane operator
had not made the inspection (Tr. 263).
Accordingly, it is found that a violation of 30 CFR 77 .1403(a)
has been established by a preponderance of the evidence in that the
required examinations had not been made.
As relates to the fourth alleged violation, 30 CFR 77.404(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." Inspector Allen's examination of the wire rope revealed that
it was damaged in several locations (Tr. 264, 309). One lay of the
rope contained as many
six broken wires, and there were some randomly distributed broken wires throughout the rope for a distance of
50 feet (Tr. 264, Exhs. M-2, M-2-A). Inspector Allen stated that
normally six broken wires are sufficient to cause the wire rope's
removal from service (Tr. 264).

as

He determined that the rope was damaged by means of visual
observation and through measuring some of the distortion in the rope
with a caliper (Tr. 267). Although he was unable to remember the
exact dimensions, the rope was .somewhat flattened in areas where the
wires were broken (Tr. 267).
The order of withdrawal alleges that the basis for the charge
that the hoisting facility was not being maintained in a safe operating condition, is the condition relating to the broken wires. To
constitute a violation upon this basis there would have to be proof
that the broken wires existed prior to the accident. There does not
appear to be clear cut proof to this effect in the record, although
it may be argued that the description and opinions of the experts for
the Petitioner infer that the broken wires may have existed prior to
the accident.
There was no testimony by anyone who observed broken wires before
the accident. In addition there is no actual statement of any of the
Petitioner's experts which clearly states an opinion that the broken
wires did exist prior to the accident.
To the contrary there is an opinion set forth in the record by
the owner of Lester Construction Company that a strain on the cable
enough to cause it to break would cause the breaklng of strands at
different intervals (Tr. 473). The owner of the construction company,
Mr. Lester, may not have been shown to be as experienced an expert
as the Petitioner's expert on hoisting equipment; however, Mr. Lester
had operated a crane and had been in this type of construction

1754

business for about 10 years prior to the date of his testimony (Tr.
481).
The experts for the Petitioner were of the opinion that the rope
failure which occurred during the accident was due to excessive tension on the rope (Exh. M-3, p. 5, Exh. M-9, p. 5). And the evidence
shows that this excessive tension occurred when the "two-blocking"
took place. Therefore the possibility exists that the broken wires
could have been caused by the same tension.
The Administrative Procedure Act provides that a sanction may
not be imposed unless it is supported by and in accordance with the
reliable, probative, and substantial evidence, 5 U.S.C. § 556(d). In
this case it cannot be said that the record contains substantial,
probative evidence that the broken wires actually existed before the
accident took place.
Therefore it is found that Petitioner has not proved a violation
of 30 CFR 77.404(a) upon a basis that the hoist was unsafe because
"numerous broken wires" allegedly existed in the rope prior to the
accident. It is, however, true that a violation existed under 30 tFR
77.404(a) in that the hoisting facilities were not maintained in safe
operating condition since such facilities were used for hoisting men
and were not equipped with overspeed, overwind, or automatic stop
controls and since the type of wire rope used did not properly match
the size of the sheave and drum on the crane.
However, the order does not allege a violation of 30 CFR
77.404(a) in such terms, but confines the allegations under that
regulation to the subject of "broken wires." In addition, two separate violations are already alleged in the order as relates to those
bases upon which the hoist was unsafe. Those are under 30 CFR 77.1401
and 30 CFR 77.1402-1. Apparently the inspector decided not to mention
such bases under 30 CFR 77. 404(a) since J-ie had already covered such
unsafe practices under specific regulations in the first part of his
order (Exh. M-2, Exh. M-2-A).
Accordingly, findings as to violations under 30 CFR 77.1401 and
77.1402-1 are made herein but no finding will be made as to a violation of 30 CFR 77.404(a).
(D)

Gravity of the Violation

Two of Lester's employees were directly exposed to the hazard.
Mr. James Grant sustained a fatal injury when the wire rope separated,
falling approximately 70 to 75 feet to his death (Tr. 101, 134-135,
524, 544, Exh. M-3), Mr. Wayne Taylor narrowly escaped death or
serious injury by jumping to the platform at the top of the stacker
(Tr. 134-135, Exh. M-3). The cable separation occurred when the
crane "two-blocked," i.e., when the overhaul ball was pulled into the
sheave (Tr. 360-361, 369).

1755

The rope broke at a location 23 feet from the socket where the
counterweight was attached (Tr. 296, Exh. M-3 at P• 6). The significance of this lies in the fact that 23 feet is the exact dimension
of the jib on the end of the crane, indicating that the rope broke
where the main boom sheaves were located (Tr. 324).
Inspector Allen explained the function of overspeed (Tr. 215,
349-350, 355), overwind (Tr. 216-218, 369), and automatic stop controls (Tr. 225), during the course of his testimony. According to
Inspector Allen, the overwind control in itself would have completely
prevented two-blocking. Activation of the overwind control would
have caused the automatic stop to bring the hoist to a safe stop.
There was no problem with overspeed in connection with the accident
( Tr • 3 5 5 , 3 6 9 ) •
As relates to the physical characteristics of the wire rope,
according to Inspector Allen, the 18 by 7 classification rope used on
the crane at the time of the accident was a nonrotating-type rope
(Tr. 233). This type of rope is of very rigid construction with a
high resistance to bending (Tr. 233). A rope bending over a small
diameter sheave eventually develops fatigue (Tr. 237). If the rope
is bent over a small sheave, and one end of the rope is free to
rotate, an immediate loss of breaking strength results (Tr. 237).
The rope in question was free to rotate because no guides were
present where the rope was attached to the cage (Tr. 363).
Passing a rope over small sheaves and drums over a period of
time causes case hardening of the crovm wires (Tr. 240). This causes
the rope to attain a strength greater than the catalogue breaking
strength (Tr. 240). However, it is a false strength because the
hardening of the outer crown wires causes them to become brittle
(Tr. 240-241). As the report (Exh. M-9) notes, the rope broke at
a greater strength than the catalogue br~aking strength (Tr. 240).
As regards the effect of the drum on the rope, Inspector Allen
stated:
On the drum you have a secondary reason. If we had
a recommended drum diameter of twenty-two and a quarter
inches, if you visualize this as the drum (indicating),
this rope is rigid. It resists bending due to the type
of construction. As seen in the table, it requires a
greater sheave size. If you intend to wind this on a
drum, it will not wind.
I think we're all maybe familiar with the rod and
reel. The fleet angle normally determines how it's
spooled onto the drum. However, with a rope that's as
rigid as this, it will not spool properly. It will tend
to overlap itself. Any time that you allow slack to

1756

come in, ·it acts as a spring and will tend to open up
and crush and destroy itself.
(Tr. 241-242).
The inside strand wires had nicks (Exhs. M-3 at p. 5, M-9).
According to Inspector Allen, this condition is normally caused by
bending the rope over small diameter sheaves and drums (Tr. 311).
Accordingly, it is found that the violations of 30 CFR 77.1401,
and 1402-1, were extremely serious.
A daily examination of the crane, according to the procedure outlined by Inspector Allen (Tr. 269-270), would have revealed both the
noncompliance with the M 11 standards and the absence of overspeed,
overwind, and automatic stop controls. Accordingly, it is found that
the violation of 30 CFR 77.1403(a) was moderately serious.
(E)

Negligence of the Operator

The evidence contained in the record indicates that Lester Construction Company demonstrated gross negligence with respect to each
of the three violations of the mandatory safety standards. The question presented is whether the negligence of an independent contractor
can be imputed to a mine owner who neither exercises control, nor
possesses a contractual right of control, over the actions of the
independent contractor or his employees.
One approach would be to determine whether the mine owner demonstrated actual negligence or whether the mine owner either exercised
control, or possessed a contractual right of control, over the independent contractor's employees. Under tqe control theory, the negligence of the independent contractor would be imputed to the mine
owner. This would require a specific finding that such control
existed. See, e.g., Old Ben Coal Company, VINC 79-119-P (April 27,
1979).
- The evidence in the record reveals that the employees of Lester
Construction Company were under the exclusive supervision of
Mr. Count's, Lester's foreman. There is no probative evidence in the
record indicating that Buffalo Mining Company supervised Lester's
employees or directed or controlled them in the performance of their
tasks. Nor is there any evidence of a contract provision granting to
Buffalo such a right of control.
The record is also devoid of any probative evidence as to direct
negligence on Buffalo's part. There is no indication that Buffalo
knew, or, through the exercise of due diligence, should have known
of the conditions giving rise to the violations of the cited mandatory safety standards. Nor is there any probative evidence indicating

1757

that Buffalo materially abetted the violations or that Buffalo was
negligent in selecting Long-Airdox as an independent contractor.
Accordingly, the application of this approach to the facts presented in the case at bar would preclude a finding that Buffalo
demonstrated any negligence.
Another approach is found in the concept of the independent contractor as the "statutory agent" of the mine owner. In Bituminous
Coal Operators' A$sociation, Inc. v. Secretary of the Interior,
547 F.2d 21+0, 247 (4th Cir. 1977), the Court recognized that a construction company may be considered the statutory agent of the mine
O\·mer. Section 3(e) of the 1969 Coal Act, 30 U.S.C. § 802(e) (1970),
defines an "agent" as "any person charged with responsibility for the
operation of all or a part of a coal mine or the supervision of the
miners in a cO'al mine." l\.s noted prev.iously in this decision, the
employees of independent contractors performing work in a "coal mine,"
section 3(h) of the 1969 Coal Act, 30 U.S.C. § 802(h) (1970), fall
within the statute's definition of a "miner," section 3(g) of the
1969 Coal Act, 30 u.s.c. § 802(g) (1970). The Court observed that the
supervision of the "miners" in their employ brings the construction
company "squarely within that part of the definition of a statutor~
agent which embraces 'any person charged with responsibility for * * *
the supervision of miners in a coal mine.'" 547 F.2d at 247. Accordingly, the court held that "operators may be held liable for construction company violations, because the construction companies are
statutory agents of the owners and lessees of coal mines." 547 F.2d
at 247.
The question presented is whether the concept of statutory agent,
mentioned by the Court of Appeals in the context of holding the mine
owner liable for the independent contractor's v.iolations of the
1969 Coal Act, can be employed to impute -the independent contractor's
negligence to the mine owner when determining the appropriate civil
penalty to assess.
The Commission's decision in Republic Steel Corporation, Docket
No. IBMA 76-28, 77-39, 1979 OSHD par. 23,455 (FMSHRC, filed April 11,
1979), does not directly address this issue, but does set forth
certain principles providing guidance. The Commission observed that
the Fourth Circuit had agreed with the District Court's conclusion in
Bituminous Coal Operators' Association v. Hathaway, 400 F. Supp. 371
(W.D. Va. 1975), as to the application of the statutory agent concept.
However, the Commission stressed the text.of the statute when it held
that, as a matter of law under the 1969 Coal Act, "an owner of a coal
mine can be held responsible for any violations of the Act committed
by its contractors."
However, this is leES than a repudiation of the statutory agent
concept. The Commission did observe that the "Act seeks to protect

1758

the safety and health of all individuals working in a coal mine," and
that the "purpose of the Act is not served by interpreting these provisions to allow an operator to limit the benefit of the protection
it affords to its own employees."
The question presented must be resolved so as to promote the purposes of the 1969 Coal Act. Statements contained in the legislative
history indicate that the civil penalty provisions of the 1969 Coal
Act are remedial in nature,.!.·~·, the penalty assessed should be
designed to deter future violations of the mandatory health and safety
standards. See HOUSE COMMITTEE ON EDUCATION AND LABOR, LEGISLATIVE
HISTORY OF THE FEDERAL COAL MINE HEALTH AND SAFETY ACT, 9lst Cong.,
2nd Sess. at 462-463 (1970). See also, Robert G. Lawson Coal Com_E._~_Y., 1 IBMA 115, 118, 79 I.D.~7~71-1973 OSHD par. 15,374
(197 2).
Thus, the amount of the penalty imposed should be sufficient to
encourage the mine owner to insure protection for the employees of
the independent contractors. This purpose is promoted by imputing
the negligence of the independent contractor to the mine owner
because it is only through such action that an appropriate and truly
remedial civil penalty can be devised.
It should also be pointed out that in this case the attorney for
the Respondent stated that he represented Lester Construction Company,
the independent contractor. He made the following statement at the
hearing:
In the contract there are certain provisions pertaining to the fact that we are an independent contractor
and we hold Buffalo Mining harmless. As a practical
matter, only through the hold harmle.ss agreement do we
represent Buffalo Mining, but we do j.n effect represent
them because of the fact that we ultimately will be
responsible for any outcome of this proceeding.
(Tr. 4, Exh. 0-1).
Accordingly, it is found that the gross negligence demonstrated
by Lester Construction Company can be imputed to the Respondent.
(F)

Good Faith in Attempting Rapid Abatement

The order of withdrawal was issued by Inspector Allen at 3:35 p.m.
on November 26, 1976 (Exh. M-2). I t was terminated by inspector
William S. Pauley at 4 p.m. on December 1, 1976 (Exh. M-5). Exhibit
M-5 describes the action taken to abate the violation as follows:
The practice of hoisting and-lowering men with the
Lorain MC 30 H crane has been discontinued. Instructions which prohibit persons from being hoisted or

1759

lowered with the crane have been posted in the cab of
the crane. Also the defective hoist rope has been
removed from the crane.
Accordingly, it is found that the Respondent demonstrated good
faith in attempting rapid abatement of the violation.
(G)

History of Previous Violations

The history of violations for which penalties have been paid at
the Respondent's No. 5 Preparation Plant during the 2-year period
preceding the issuance of the subject order is summarized as follows
(Exh. M-1):
30 CFR
Standard
All Sections
77.1401
77.1402-1
77.1403(a)
(Note:

Year 1
11/27/74 - 11/26/75

Year 2
11/27/75 - 11/26/76

24
0
0
0

9
0
0
0

Totals
33
0
0
0

All figures are approximations.)

No evidence was presented as to any possible history of violations as relates to Lester Construction Company.
(H)

Size of the Operator's Business

The No. 5 Preparation Plant processes 5., 800 tons of coal daily
(Exh. M-3, p. 2). The plant is owned by the Buffalo Mining Company
(Tr. 13). Btiffalo Mining Company is a subsidiary of The Pittston
Company (Exh. M-6). However, the record contains no evidence regarding the total annual coal production of either Buffalo Nining Company
or The Pittston Company. No significant evidence as to the size of
the Lester Construction Company was presented.
(I)

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

The Respondent introduced no probative evidence indicating that
an assessment in this case would adversely affect the Respondent's or
Lester Construction Company's ability to continue in business. The
Interior Board of Mine Operations Appeals has held that evidence
relating to whether a penalty will affect the ability of the operator
to remain in business is within the operator's control, and therefore,
there is a presumption that the operator will not be so affected.
Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380
(1972). I find, therefore, that penalties otherwise prcperly assessed
in this proceeding will not impair the operator's ability to continue
in business.

1760

(J)

Jurisdictional Issues

During the course of the hearing, the attorney for the Respondent
stated that there was a question as to jurisdiction in that he took
the position that the Occupational Safety and Health Administration
(OSHA) rather than MSHA should have jurisdiction because he questioned
whether the factual circumstances came under the 1969 Coal Act. He
stated that no coal mining people were involved.
The Respondent's attorney is in error on this issue since it has
already been pointed out in the prior portions of this decision that
the area involved herein comes within the definition of a coal mine
and that the employees of a contractor working at such mine come under
the definition of miners.
All of the Respondent's attorney's arguments as relates to the
jurisdictional issues revolve around the same issues argued in the
motion to dismiss which was disposed of in Part V(C) of this decision
wherein it was held that the Respondent could be helq liable for
safety violations committed by the independent contractor, Lester
Construction Company.
In his reply brief, Respondent's attorney stated that Buffalo may
be in interstate commerce but Lester Construction Company is not.
However, the question of whether Lester is or is not in interstate
commerce is immaterial since Buffalo is properly charged with the
violations.
Based upon all of the findings of fact and conclusions of law
previously set forth in this decision it is found that Buffalo
Mining Company and its No. 5 Preparation Plant have been, during the
pertinent periods involved herein, subject to the 1969 Coal Act and
the 1977 Mine Act.
VI.

Conclusions of Law

1. Buffalo Mining Company and its No. 5 Preparation Plant have
been subject to the provisions of the 1969 Coal Act and 1977 Mine
Act during the respective periods involved in this proceeding.
2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding.
3. MSHA inspector Birkie Allen was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the order of withdrawal which is the subject matter of this
proceeding.
4. The violations charged as to 30 CFR 77.1401, 77.1402-1, and
77.1403(a) are found to have occurred as alleged.

1761

5. MSHA has failed to prove, by a preponderance of the evidence,
a violation as to 30 CFR 77.404(a) as alleged in the subject order.
6. The Respondent's motion to dismiss is denied as contrary to
the law and the facts.
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. Buffalo submitted
a reply brief. Subsequent thereto, MSHA submitted a letter aoting
its disagreement with certain statements contained in Buffalo's
reply 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 penalties is warranted as follows:
Order No.

Date

1 BA

11/26/76

30 CFR Standard

Penalt:i:

77 .1401
77.1402-1
n .14o3(a)

$6,000
1,500
500
$8,000

ORDER
A. Respondent is ORDERED to pay a civil penalty in the amount of
$8,000 within 30 days of the date of this decision.
B. The petition is dismissed as relates to an alleged violation
of 30 CFR 77.404(a).

Judge

1762

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

Civil Penalty Proceeding

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

Docket No. BARB 78-674-P
Assessment Control
No. 15-07212-02008

v.
No. 10 Mine
DEBY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Stephen P. Kramer, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
No one appeared at the hearing on behalf of Respondent

Before:

Administrative Law Judge Steffey

When the hearing in the above-entitled proceeding was convened in
Barbourville, Kentucky, on September 12, 1979, counsel for petitioner
asked that I approve a settlement agreement under which respondent had
already paid the full civil penalties totaling $590 which had been proposed
by the Assessment Office. The penalties proposed by the Assessment Office
were derived by a proper consideration of the six criteria set forth in
Section llO(i) of the Federal Mine Safety and Health Act of 1977.
Respondent's No. 10 Mine produces approximately 31,250 tons of coal
on an annual basis or about 125 tons of coal per day. Therefore, I agree
that the Assessment Office appropriately_ found that respondent operates a
small business and that any penalties which might be assessed in this proce~ding should be in a low range of magnitude under the criterion of the
size of respondent's business. There is no evidence in the record to show
that payment of penalties would cause respondent to discontinue in business.
In the absence of any evidence to the contrary, I find that payment of
civil penalties will not cause respondent to discontinue in business.
All of the alleged violations involved in this proceeding were
corrected within the period of time allowed by the inspector and therefore
the Assessment Office correctly found that respondent demonstrated a normal
good faith effort to achieve rapid compliance. The Assessment Office allowed
from 10 to 12 penalty points for respondent's history of previous violations
which also appears to be reasonable.
The penalties proposed by the Assessment Office are based on the
Assessment Office's findings that all of the alleged violations were the
result of ordinary negligence with penalty points fixed midway in the

1763

MSHA v. Deby Coal Company, Docket No. BARB 78-674-P
allowance for ordinary negligence. The alleged violations were all
considered to be associated with a moderate degree of gravity with the
exception of two alleged violations of Section 75.202.
The Assessment Office arrived at penalties of $58 each for six
alleged violations. The first $58 penalty was proposed for a violation
of Section 75.1100-2(i)(2) alleging that respondent did not have 5 tons
of rock dust which could be delivered to the mine within a period of
1 hour. The second $58 penalty was proposed for a violation of Section 75.202-1 alleging that respondent did not have a supply of supplemental roof support materials as close as practical to the working section. The third $58 penalty was proposed for a violation of Section
75.313 alleging that the methane monitor on the loading machine was inoperative. The fourth $58 penalty was proposed for an alleged violation
of Section 75.1704 alleging that the No. 2 designated escapeway was not
properly marked, The fifth $58 penalty was proposed for a violation of
Section 75.1713-7(c) alleging that first-aid supplies were not being
stored in a suitable manner. The sixth $58 penalty was proposed for a
violation of Section 75.316 alleging that respondent had failed to install
a permanent stopping in the third crosscut from the working face. I find
that 'the proposed penalties of $58 each were appropriately determined by
the Assessment Office for the above-described six alleged violations
since they were correctly found to be the result of ordinary negligence
and to involve a moderate degree of gravity.
The Assessment Office appropriately found that a penalty of $46 should
be assessed for an alleged violation of Section 75.512 alleging that respondent failed to record the last date on which electical equipment was
inspected. The Assessment Office found that this alleged violation of
Section 75.512 was the result of ordinary negligence and was nonserious.
The Assessment Office proposed a penalty of $86 for violation of
Section 75.202 alleging that 36 posts had been dislodged along the haulage
roadway where men and coal are transported daily. Although the Assessment
Office classified the alleged dislodging of posts to be the result of
ordinary negligence, the penalty points were increased above the mid range
for the criterion of negligence and the gravity of the violation was considered to be more serious than the other violations which have been
discussed above. A penalty of $86 for dislodging 36 posts along the
haulageway is acceptable for a small mine such as the one here involved.
The Assessment Office proposed a penalty of $110 for the final
violation in this proceeding. That notice of violation alleged that
respondent had failed to support adequately a rock in the roof of the
haulageway. The rock was about 16 feet wide and 6 feet long. The Assessment Office rated respondent's negligence in this instance to be close to
the maximum for ordinary negligence and considered that the violation
involved a high degree of gravity. The penalty of $110 is acceptable for

1764

MSHA v. Deby Coal Company, Docket No. BARB 78-674-P
a serious violation involving a small mine such as the one under consideration in this case.
For the reasons set forth above, I find that the settlement proposed
by the parties should be approved.
WHEREFORE, it is ordered:
(A) The request for approval of settlement is granted and the
settlement agreement is approved.
(B) If Deby Coal Company has not already done so, it shall pay
civil penalties totaling $590 within 30 days from the date of this
decision. The penalties are allocated to the alleged violations as
follows:

........... $ 58.00
58.00
..................
46.00
....................
58.00
....................
58.00
. .................
58.00
.............
86.00
...................
.................. 110.00
58.00
...................
........ $ 590.00

Notice No. 1 HM (8-1) 1/17/78 § 75 .1100-2 (i) (2)
Notice No. 4 HM (8-4) 1/17/78 § 75.202-1
Notice No. 1 HM (8-7) 1/24/78 § 75.512
Notice No. 2 HM (8-8) 1/24/78 § 75.313
Notice No. 4 HM (8-10) 1/24/78 § 75 .1704
Notice No. 1 HM (8-11) 2/23/78 § 75.1713-7(c)
Notice No. 2 HM (8-12) 2/23/78 § 75.202
Notice No. 3 HM (8-13) 2/23/78 § 75.202
Notice No. 2 HM (8-15) 2/28/78 § 75.316
Total Settlement Penalties in This Proceeding

~ui~C.r:J~

Richard C. Steffey
~Administrative Law Judge
Distribution:
Stephen P. Kramer, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Deby Coal Company, Attention: James D. Sturgill, Manager, Manchester,
KY 40962 (Certified Mail)

1765

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

·" -

CONSOLIDATION COAL COMPANY,
Applicant
v.

'. ·;~r~

Application for Review
Docket No. DENV 79-59

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

Order No. 389458
October 17, 1978
Glenharold Mine

DECISION
Appearances:

Kar~

Before:

Judge Cook

I.

T. Skrypak, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for the Applicant;
Stephen P. Kramer, Esq., Office of the Solicitor,
U.S. Department of Labor, for the Respondent.

Procedural Background

On November 14, 1978, Consolidation Coal Company (Applicant) filed
an application for review pursuant to section 105(d) 1/ of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (1978) (Act).
1/

Section 105(d) provides:
"If, within 30 days of receipt thereof, an operator of a coal or
other mine notifies the Secretary that he intends to contest the issuance or modification of an order issued under section 104, or citation or a notification of proposed ass~ssment of a penalty issued
under subsection (a) or (b) of this section, or the reasonableness
of the length of abatement time fixed in a citation or modification
thereof issued under section 104, or any miner or representative of
miners notifies the Secretary of an intention to contest the issuance,
modification, or termination of any order issued under section 104, or
the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary
shall immediately advise the CoUL~ission of such notification, and 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 on findings of fact, affirming, modifying, or vacating
the Secretary's citation, order, or proposed penalty, or directing
other appropriate relief. Such order shall become final 30 days after
its issuance. The rules of procedure prescribed by the Commission
shall provide affected miners or representatives of affected miners an
opportunity to participate as parties to hearings under this section.
The Commission shall take whatever action is necessary to expedite
proceedings for hearing appeals or orders issued under section 104.''

1766

The application seeks review of Order of Withdrawal No. 389458, dated
October 17, 1978, issued pursuant to section 104(d)(l) 2/ of the Act.
In the application for review, it was alleged:
1. At or about 1335 hours on October 17, 1978, Federal
Coal Mine Inspector, Rudolph Isgler [sic] (A.R. 1639) representing himself to be a duly authorized representative
of the Secretary of Labor (hereinafter "Inspector") issued
Order No. 389458 (hereinafter 11 0rder 11 ) pursuant to the provisions contained in Section 104(d)(l) of the Act to Joel
Grace, Safety Inspector, for a condition he allegedly
observed during a 11 CAA" inspection (spot inspection) at
the Glenharold Mine, Identification No. 32-00042 located in
North Dakota.. A copy of this Order is attached hereto as
Exhibit 11 A11 in accordance with 29 C.F.R. Section 2700.2l(b).
2. Said Order under the heading captioned "Condition
or Practice 11 alleges that:
The trailing cable for the 1250 BE Dragline
is not protected against damage from falling materials at 001 pit. The loaded bucket was being
swung over the cable yesterday and now although
not observed by this inspector, this practice was
discussed with the operator during the last inspection, 09/13/78.
2/

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 staudard, and if he also finds that,
while the conditions created by such violation do not cause imminent
danger, such violation is of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator to comply with
such mandatory health or safety standards, he shall include such
finding in any citation given to the operator under this Act. 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 s~ch violation has been abated."

1767

3 . . Said Order contains the allegation that the above
condition or practice constituted a violation of 30 C.F.R.
77.604, a mandatory health or safety standard, but that
the violation has not created an imminent danger. Further,
the Inspector stated that the alleged violation was of such
a nature that it could significantly and substantially contribute to the cause and effect of a mine safety or health
hazard and was caused by an unwarrantable failure to comply
with the stated standard.
4. Said Order additionally contained the allegation
that the violation was found during a subsequent inspection
made within ninety (90) days after Citation No. 389434 was
issued on September 13, 1978, asserting that said Citation
was caused by an unwarrantable failure of the operator to
comply with a mandatory standard. A copy of this Citation
issued under Section 104(d)(l) of the Act is attached
hereto as Exhibit "B".*
5. At or abor [sic] 1400 hours on September 13, 1978,
Inspector Isgler [sicTJ:"ssued a termination of said Order.
A copy of this termination is attached hereto as part of
Exhibit "A".
6. Consol avers that the Order is invalid and void,
and in support of its position states:
(a) That it did not violate 30 C.F.R. 77.512 as
alleged in the underlying 104(d)(l) Citation;
(b) That the underlying 104(d)(l) Citation did not
state a condition or practice which was of such a nature
as could significantly and substantially contribute to the
cause and/or effect of a mine safety or health hazard; and
(c) That underlying 104(d)(l) Citation did not state
a condition or practice caused by an unwarrantable failure
of Consol to comply with the mandatory safety standard
cited in the Citation.
7. Consol further avers that the Order is invalid and
void for the additional reasons as follows:
(a) That the Order fails to cite a condition or practice which constitutes a violation of mandatory health or
safety standard 30 C.F.R. 77.604.

(b) That the Order fails to state a condition or practice caused by an unwarrantable failure of Consol to comply
with any mandatory health or safety standard; and

1768

(r.) That the Order fails to state a condition or practice which could significantly and substantially contribute
to the cause and/or effect of a mine safety or health
hazard.

*

*

*

*

*

*

*

WHEREFORE, Consol respectfully requests that its Application for Review be granted and for all of the above and
other good reason; Consol additionally requests that the
subject Order and underlying Citation be vacated or set
aside and that all actions taken or to be taken with
respect thereto or in consequence thereof be declared
null, void and of no effect.
In a footnote to paragraph 4 of the application, the Applicant
states:
Said ·citation under the heading "Condition or Practice" alleges that:
The cover plate on the Brown and Sharpe Milling Lathe in use at the machine shop was removed by
a certified Electrician about a week ago to remove
a motor. It is an opening about 10 by 22 inches
exposing conductors energized with 220 volts three
phase power to two switches. The Electrician said
it takes too long to replace cover. The machinist
was aware of the condition.
On November 17, 1978, the United Mine Workers of America (UMWA)
filed an answer, which states, in pa~t, as follows:
1. The International Union, United Mine Workers of
America, is the representative of the miners at the Glenharold mine for collective bargaining and safety purposes,
and is therefore a party to this matter under 29 CFR
§ 2700.lO(a).
2. Issuance of the above-noted withdrawal order is
admitted, but all other allegations contained in the
application for review are denied.
The answer of the Mine Safety and Health Administration (MSHA)
was filed on November 24, 1978. It states, in part, as follows:
"MSHA admits the issuance of order No. 384458 dated 10/17 /78 and
citation No. 389434 dated 9/13/78. MSHA avers that both the order
and citation were in all respects properly issued under Section
104(d)(l) of the Act. 11
MSHA then requested dismissal of the application for review.

1769

The hearing was held on April 10, 1979, in Bismarck, North Dakota,
pursuant to a notice of hearing issued on January 25, 1979. Representatives of the Applicant and MSHA were present and participated. No
representative of the UMWA was present at the hearing (Tr. 4). )_/
A schedule for the submission of posthearing briefs was agreed
upon at the conclusion of the hearing. MSHA submitted its posthearing brief on May 23, 1979. On May 30, 1979, counsel for the Applicant
requested an additional 30 days in which to file a posthearing brief,
which request was granted on June 4, 1979. Under the revised schedule, the brief was due on or before June 24, 1979, and reply briefs
were due on or before July 9, 1979. The Applicant did not file a
posthearing brief. No reply briefs were submitted.
II.

Issues

1. Whether the condition cited in Order No. 389458 existed and,
if so, whether it constitutes a violation of 30 CFR 77.604. In this
regard, the parties' joint statement of the issue is whether 30 CFR
77.604 requires that the trailing cable going from the substation to
the dragline be protected in the area where the bucket swings over
said cable to prevent damage caused by objects falling from the
bucket of said dragline (Tr. 159).
2. If the condition cited in Order No. 389458 existed and constitutes a violation of 30 CFR 77.604, whether said violation was
caused by the unwarrantable failure of the operator to comply with
said mandatory safety standard.
3. Whether the conditions cited in Citation No. 389434, issued
on September 13, 1979, existed and, if so, whether they constituted
a violation of 30 CFR 77.512.
4. If the conditions cited in Citation No. 389434 existed and
constituted a violation of 30 CFR 77.512, whether said violation was
of such a nature as could significantly and substantially contribute
to the cause and effect of a coal mine safety hazard, and whether
said violation was caused by the unwarrantable failure of the operator to comply with said mandatory safety standard.
3/ The Applicant thereupon moved to dismiss the UMWA as a partyRespondent (Tr. 4). This motion was considered in conjunction with
this decision, but was disposed of in a separate order, issued
immediately prior to the issuance of this decision, so that the
caption on this decision would reflect only the remaining parties.

1770

III.

Evidence.Contained in the Record
A.

Stipulations

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

B.

Exhibits

1.

MSHA introduced the following exhibits into evidence:

(a) M-1 is a copy of Citation No. 389434, September 13,
1978, 30 CFR 77.512, issued pursuant to section 104(d)(l) of the Act.
(b) M-2 through M-5 are photographs of the milling machine
cited in Citation No. 389434.
(c) M-6 is a copy of Order No. 389458, October 17, 1978,
30 CFR 77.604, issued pursuant to section 104(d)(l) of the Act.
2. The Applicant introduced the following exhibits into
evidence:
(a) 0-1 is a photograph of the milling machine cited in
Citation No. 389434.
(b) 0-2 is a scale drawing of the dragline involved in
Order No. 389458.
(c) 0-3 is a drawing representing the arc that the boom
of the dragline would follow if it were to swing over the trailing
cable.
(d) 0-4 is a page from MSHA's policy manual referring to
30 CFR 77.604.
C.

Witnesses

MSHA called as its witness Rudolµh Iszler, an MSHA inspector.
The Applicant called as its witnesses Philip Wanner, an electrical engineer and electrical foreman at the Applicant's Glenharold
Mine; and Michael B. Quinn, the safety director at the Applicant's
Glenharold Mine.
IV.

Opinion

A.

Stipulations

1. Consolidation Coal Company is the owner and operator of the
Glenharold Mine located in North Dakota (Tr. 6).

1771

2. Consolidation Coal Company and the Glenharold Mine are subject to the jurisdiction of the Federal Mine Safety and Health Act
of 1977 (Tr. 6).
3. The Administrative Law Judge has jurisdiction of the case
pursuant to section 105 of the 1977 Act (Tr. 6).
4. The inspector who issued the subject order and citation was
a duly authorized representative of the Secretary of Labor (Tr. 7).
5. A true pnd correct copy of the subject order and citation
were properly served upon the operator in accordance with section
104(a) of the 1977 Act (Tr. 7).
6. Copies of the subject order and citation 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 (Tr. 7).
7. With respect to the subject 104(d)(l) citation and section
104(d)(l) order, an imminent danger did not exist (Tr. 7).
8. As relates to Citation No. 389434, a violation of 30 CFR
77.512 existed on September 13, 1978 (Tr. 7-8).
9. As relates to the condition cited in Order No. 389458, the
operator knew that the dragline was operating without the protective
covering that Inspector Iszler had requested over the trailing cable
(Tr. llO).

B.

Findings of Fact

MSHA inspector Rudolph Iszler visited the Applicant's Glenharold
Mine on October 17, 1978, to conduct a health and safety inspe~tion
(Tr. 103). He traveled to the area of the 1250 dragline, accompanied
by Joel Grace, the safety director for the Glenharold Mine, and Sam
Drath, the union representative (Tr. 103). As they approached the
dragline from the rear, the inspector observed the loaded bucket on
the end of the boom swinging over the dragline's trailing cable (Tr.
103-106). Upon examining the area, the inspector observed chunks of
"hard" clay lying on and beside the trailing cable (Tr. 104-105).
Exhibit 0-2 reveals that a dragline is essentially a large crane.
The bucket is attached to a cable which runs from the bucket up to a
pulley on the end of the boom and thereafter to the vicinity of what
appears to be the dragline operator's compartment. A second cable
runs from the vicinity of the bucket to what appears to be a drum
located at or near the point at which the boom is attached to the
main portion of the machine.

1772

Inferences drawn from the testimony of the witnesses (Tr. 131132, 139, 143), interpreted with reference to statements contained in
the parties' joint statement as to the key issue in this proceeding
(Tr. 159), indicate that the trailing cable ran from the dragline
back to a substation. However, this was never stated directly by
any of the witnesses. The only testimony as to the voltage passing
through the trailing cable came from Inspector Iszler, who testified
that he thought it was 7,200 volts (Tr. 108).
The testimony of Inspector Iszler and Exhibit 0-3 reveal that
at the time of the order's issuance, the dragline was being used to
uncover a seam of coal (Tr. 129, 149). Thus, the material being
transported in the bucket was newly dug (Tr. 129). The dragline
was positioned b~tween the coal seam and some "spoils" piles
(Exh. 0-3). The material was being taken from the vicinity of the
areas denominated as "cut A" and "cut B" on Exhibit 0-3, swung over
the trailing cable, and deposited in the area labeled "spoils" on
Exhibit 0-3 (Tr. 104-105). The inference is that the material on or
near the trailing cable had fallen from the bucket. Normally, the
"cut A" material is not swung over the cable (Tr. 149).
According to Mr. Quinn, a second piece of equipment called a
"loading shovel" is used to load the uncovered coal into trucks.
These trucks approach their loading point by way of the coal seam
level, not the level upon which the dragline is located. Mr. Quinn
stated that the difference in elevation between these two levels is
probably 30 to 40 feet (Tr. 151-152). Thus, the trucks could not
have damaged the d~agline trailing cable.
The subject order of withdrawal was issued at 1:35 p.m. (Exh.
0-6), citing the following "condition or practice" as a violation of
the mandatory safety standard embodied in 30 CFR 77.604:
The trailing cable ior the 1250 BE dragline is not
protected against damage from falling materials at 001 pit.
The loaded bucket was being swung over the cable yesterday
and now. Although not observed by this inspector, this
practice was discussed with the operator during the last
inspection, 09/13/78.
As relates to the phrase " [ t] he loaded bucket was being swung
over the cable yesterday and now, 11 the inspector testified that he
had not seen the bucket being swung over the cable "yesterday" (Tr.
106), but that this information was acquired from the dragline operator (Tr. 106).
As relates to the phrase "[a]lthough not observed by this
inspector, this practice was discussed with the operator during the
last inspection, 09/13/78, 11 the inspector testified as follows:

1773

Q. And this next sentence you state that "Although
not observed by this inspector this practice was discussed
with the operator during the last inspection--9-13-78 . 11
Now, this phrase "not observed by this inspector"--what
dates were you referring to when you made that statement?
A. It had been brought to my attention that--that
they were swinging a loaded bucket over the cable and
dropping material on the cable occasionally, and it was
also pointed out to me by a federal mine inspector who
was stationed at Billings, Montana, that this was going
on, and he alerted me to the fact, and he also told me
that the company was notified of this during his inspection. I don't have the exact time, but it was, I believe,
in May or June of 1978.

Q.

And what was the name of that inspector?

A.

H9ward Clayton.

Q. Now, I don't believe you still quite answered
my original question about dates. The statement "not
observed by this inspector 11 --what dates does that refer
to? Does that refer to some dates previous to the 17th?

Q.

And what dates would those be?

A. It probably could have been the last inspection,
because he mentioned this during several inspections. I
asked whether they were making a practice of this here.

Q.

Do you recall who you had discussions with concerning the subject during that inspection?
A. That was at a close-out conference, the one I
am referring to there. That was at a close-out conference. It was a safety director, and--! am not certain,
no, sir. It was a--I don't have my notes with me. I
got them in Dickinson.

Q. Was this close-out conference the only time that
you discussed this problem with the Management previous
to the conditions of this Order?
A. No, sir.
tor previously.

I mentioned that to the safety direc-

Q. And this was an incident other than the closeout conference?

17.74

A.

Yes.

Q.

And who was that safety director?

A.

Joel Grace.

Do you recall?

(Tr. 106-108).
The mandatory safety standard embodied in 30 CFR 77.604 provides:
"Trailing cables shall be adequately protected to prevent damage by
mobile equipment . 11 In determining whether the "condition or practice"
cited in the subject order of withdrawal constitutes a violation of
the mandatory standard, the parties are in agreement that the question
presented is whether the regulation "requires that the trailing cable
going from the substation to the dragline be protected in the area
where the bucket swings over said cable to prevent damage caused by
objects falling from the bucket of said dragline" (Tr. 159). For the
reasons set forth below, I find that it does not. In resolving this
issue, it has been necessary to interpret the regulation's requirements, determine whether the dragline was a piece of mobile equipment,
and determine whether the manner in which the dragline was being used
in relation to the cable is contemplated as a violation under the
regulation.
At the outset, it is found that Inspector Iszler observed the
dragline bucket swinging over the trailing cable on October 17,
1978, and that at the time the dragline's trailing cable was not
protected so as to prevent objects falling from the bucket from
damaging the cable.
A question is presented as to whether the dragline is a piece of
mobile equipment. The regulations nev~r specifically define the term
"mobile equipment, 11 perhaps because the drafters believed the definition to be self-evident. The following definition is found 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)
( 1968) at page 719: "Mobile equipment. Applied to all equipment
which is self-propelled or which can be towed on its own wheels,
tracks, or skids . 11 Accordingly, it is appropriate to use this
accepted definition in determining whether the piece of equipment
involved is mobile.
ln view of Inspector Iszler's assertion that the dragline is
self-propelled (Tr. 110-111), it is found that it is mobile equipment within the meaning of the subject regulation.
Exhibit 0-4, a page from an MSHA surface manual, contains a
policy guide for the enforcement of 30 CFR 77.604, which states the
following:

1775

77.604 ·Protection of trailing cables.

*

*

*

*

*

*

*

POLICY
Trailing cables shall be placed away from roadways and
haulageways where they will not be run over or damaged by
mobile equipment. Where trailing cables must cross roadways
and haulageways they shall be protected from damage by:
1.

Suspension over the roadway or haulageway;

2. Installation under a substantial bridge capable
of supporting the weight of the mobile equipment using the
roadway or haulageway; or
3.

An equivalent form of protection.

When mobile equipment is observed running over unprotected trailing cables a violation of Section 77.604 exists.
[Emphasis added.]
The policy guide refers to two specific situations. Generally,
it provides that the cables be "placed away from roadways and haulageways where they wil 1 not be run over or damaged by mobile equipment . 11
However, where they must cross such areas, one of the three designated
methods must be employed to protect them from damage.
Although the language of the regulation, when taken in context,
appears to refer to damage caused solely by physical contact by
mobile equipment primarily by running_ over the trailing cable, a
question is presented as to the meaning of the phrase "run over or
damaged" contained in Exhibit 0-4. At first glance, it appears to
reflect a recognition by MSHA that a trailing cable can be damaged by
mobile equipment either by the equipment running over the cable or by
some other means. This interpretation is supported by the testimony
of Inspector Iszler (Tr. 114-117), who stated that the policy includes,
but is not limited to, running over the cables (Tr. 115). A careful
review of the policy statement, when taken as a whole, reveals that
such an inference is unwarranted.
I conclude that the terms "run over" and "damaged," as contained
in the policy statement are being used interchangeably to refer to the
same thing, and that the damage referred to is of a type caused by
mobile equipment running over the cable. Two considerations weigh
heavily in this determination. First, the policy guide indicates that
the trailing cables must be protected from "damage" where they must
cross roadways and haulageways. The term "run over" is not specifically mentioned. Yet, the three forms of protection prescribed are

1776

designed to prevent mobile equipment from running over,. and thus from
damaging, the cable. In this context, it is clear that the terms
"run over" and "damaged" are being used interchangeably. Second,
Exhibit 0-4 states that when "mobile equpment is observed running over
unprotected trailing cables a violation of Section 77 .604 exists."
(Emphasis added.) It does not state that when "mobile equipment is
observed running over or otherwise damaging unprotected trailing cables
a violation of Section 77. 604 exists," or a statement to that effect.
This fact, coupled with the fact that Exhibit 0-4 provides no guidelines for identifying other means of damaging the cable, further
indicates that the word "damage" has been interpreted by MSHA to mean
"run over."
Accordingly, I conclude that MSHA's interpretation as contained
in Exhibit 0-4, provides that trailing cables be protected in such
a manner so as to· prevent damage from physical contact by mobile
equipment running over the cables.
Above and beyond this policy statement by MSHA addressed to
"running over" cables, it appears that the regulation does include
damage caused by any physical contact of the piece of mobile equipment
with the cable. This could be caused by the equipment actually
running into the cable rather than over it. However, it must be
recognized that MSHA's policy statement is as stated since in almost
all instances the danger would be caused by the "running over" of
the cable. However, it does not appear that the regulation or MSHA's
policy statement ever contemplated the type of situation presented
in this case which does not involve physical contact of the piece of
equipment with the cable.
The question presented is whether the dragline's use in relation
to the cable is the type of activity contemplated by the subject regulation. Once again, Exhibit 0-4, as interpreted in context, is
instructive, revealing that MSHA has interpreted the regulation to
require physical contact with the cable before a violation can be
found to have occurred. In the instant case, the dragline bucket did
not make physical contact with the cable.
Accordingly, I conclude that the "condition or practice" cited
in Order No. 389458 did not constitute a violation of 30 CFR 77.604.
It is therefore unnecessary to address the issue of unwarrantable
failure.
It may well be that it is desirable that a regulation be enacted
to protect against any possible damage which could be caused by the
falling of material from a dragline bucket as it swings over a cable,
but such was not contemplated by the subject regulation and its
interpretation by MSHA.

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In view of the foregoing, it is unnecessary to address those
issues pertaining to Citation No. 389434, the 104(d)(l) citation
underlying the subject 104(d)(l) order of withdrawal. The Applicant
pleaded the invalidity of Citation No. 389434 solely as an incident
to the determination of the validity of the subject order of withdrawal. See, generally, Zeigler Coal Company, 3 IBMA 448, 81 I.D.
729, 1974-1975 OSHD par. 19,131 (1974), reaffirmed on reconsideration, 4 IBHA 139, 82 I.D. 221, 1974-1975 OSHD par. 19,638 (1975).
In view of the foregoing findings of fact and conclusions of
law, the application for review will be granted, and Order No. 389458
will be vacated.
V.

Conclusions of Law

1. The Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding.
2. Consolidation Coal Company and its Glenharold Mine have been
subject to the provisions of the Federal Mine Safety and Health Act
of 1~77 at all times relevant to this proceeding.
3. MSHA inspector Rudolph Iszler was a duly authorized representative of the Secretary of Labor at all times relevant to this
proceeding.
4. The condition cited in Order No. 389458 existed, but did
not constitute a violation of 30 CFR 77.604.
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

MSHA submitted a posthearing brief. Counsel for the Applicant
made a closing statement, but did not submit a posthearing brief. The
brief and the closing statement, 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.

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ORDER
Accordingly, based on the above findings of fact a.nd conclusions
of law, the application for review is GRANTED, and Order No. 389458 is
herewith VACATED.

Law Judge
Distribution:
Karl T. Skrypak, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)
Stephen P. Kramer, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Harrison Combs, Esq., Joyce A. Hanula, Legal Assistant, United
Mine Workers of America, 900-15th Street, NW., Washington, DC
20005 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

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

Civil Penalty Proceeding

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

Docket No. WEVA 79-170
A/O No. 46-01383-03007
Guyan No. 1 Mine

ISLAND CREEK COAL COMPANY,
Respondent
ORDER OF DISMISSAL
The Solicitor has filed a motion to withdraw the petition in the
above-captioned proceeding. In his motion, the Solicitor advises the
only citation in this petition was issued in error.
I accept the Solicitor's representations. Accordingly, the
Solicitor's motion is GRANTED, and this proceeding is hereby DISMISSED.

Assistant Chief Administrative Law Judge
Distribution:
David E. Street, Esq., Office of the Solicitor, U.S. Department of
Labor, Rm. 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
William K. Bodell II, Esq., Island Creek Coal Company, 2355 Harrodsburg
Road, P.O. Box 11430, Lexington, KY 40575 (Certified Mail)
*U.S. GOVERNMENT PRINTING OFFICE: 19790- 311-143/3309

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