May 1981
Commission Decisions
5-11-81
5-11-81
5-12-81
5-18-81
5-18-81

Ronnie R. Ross and MSHA v. Monterey Coal Co.,
VINC 78-38
McNally-Pittsburgh Corp., and Looking Glass
Construction Co.
Local 781, District 17, UMWA v. Eastern Assoc. Coal Corp.WEVA 80-473-C
Ralph Foster & Sons
WEST 79-397-M
Pocahontas Construction Co.
WEVA 81-109-M
Old Ben Coal Corp.
VINC 74-157

Pg. 1171
Pg.
Pg.
Pg.
Pg.

1175
1181
1184
1186

Administrative Law Judge Decisions
5-01-81
5-04-81
5-06-81
5-06-81
5-06-81
5-07-81
5-07-81
5-ll-81
5-13-81
5-13-81
5-14-81
5-14-81
5-15-81
5-15-81
5-26-81
5-27-81
5-27-81
5-29-81
5-29-81

Brown Brothers Sand Co.
MSHA ex rel James F. Coulter v. Cotter Corp.
Crawford County Mining, Inc.
Itmann Coal Co.
U S Steel Corp.
Mulzer Crushed Stone Co.
Valley Camp Coal Co.
Assonet Sand & Gravel Co.
Frank L. Miles, Ben Leiler
Kennecott Copper Corp. and M.M. Sundt Construction Co.
Aaron Mining Inc.
Island Creek Coal Co.
United Minerals
Alabama By-Products Corp.
Ozark-Mahoning Co.
Asarco, Inc.
Northern Coal Co.
Eddie Coal Co. Inc,
Davis Coal Co.

SE 80-124-M
WEST 81-11-DM
SE 81-10-M.
WEVA 80-226-R
WEVA 81-263-R
LAKE 80-299-M
WEVA 81-71-D
YORK 80-123-M
WEST 80-332-M
WEST 79-141-M
WEST 81-99-DM
WEVA 80-658
SE 80-131
SE 80-121
LAKE 80-336-M
SE 80-125-RM
WEST 80-313-D
KENT 79-264
WEVA 80-663

Pg. 1203
Pg. 1209
Pg. 1211
Pg. 1221
Pg. 1228
Pg. 1238
Pg. 1243
Pg. 1248
Pg. 1254
Pg. 1259
Pg. 1262
Pg. 1265
Pg. 1277
Pg. 1289
Pg. 1293
Pg. 1300
Pg. 1331
Pg. 1348
Pg. 1374

Commission Decisions

·MAY

The following cases were Directed for Review during the month of May:
Elias Moses v. Whitley Development Company, KENT 79-366-D; (Judge
Steffey, March 31, 1981)
Secretary of Labor, MSHA v. Southwestern Illinois Coal Corporation,
LAKE 80-216; (Judge Koutras, April 7, 1981)
Secretary of Labor, MSHA v. Pocahontas Construction Company, WEVA 81-109-M;
(Judge Broderick, Default Decision, April 8, 1981)
Frederick Bradley v. Belva Coal Company, WEVA 80-708-D; (Judge Broderick,
April 10, 1981)
Secretary of Labor on behalf of William Johnson v. Borden, Inc.,
SE 80-46-DM; (Judge Laurenson, April 13, 1981)
Review was Denied in the following Cases during the month of May:
Secretary of Labor, MSHA v. Evansville Materials, Inc., LAKE 80-82-M;
(Judge Fauver, March 25, 1981)
Secretary of Labor, MSHA v. Madison Granite Company, WEST 80-101-M,
etc.;(Judge Merlin, March 27, 1981)
Secretary of Labor, MSHA v. Mulzer Crushed Stone Company, LAKE 80-303-M;
(Judge Laurenson, April 8, 1981)
Charles E. Blankenship v. W-P Coal Company, WEVA 79-336-D; (Judge Koutras,
April 16, 1981)
Secretary of Labor, MSHA v. B. L. Anderson, Inc., DENV 79-539-PM;
(Judge Fauver, April 17, 1981)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, O.C. 20oo6

May 11, 1981

RONNIE R. ROSS
and

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

:

VINC 78-38

v.
MONTEREY COAL COMPANY,
McNALLY-PITTSBURGH CORPORATION,
AND LOOKING GLASS CONSTRUCTION
COMPANY

DECISION
This case involves an application for review of allegedly discriminatory conduct in violation of section llO(b) of the Federal Coal
Mine Health and Safety Act of 1969, 30 U.S.C. §801 ~~ (1976)(amended
1977). Ronnie R. Ross alleges that his employer, McNally-Pittsburgh, by
placing a letter in his employment file~ illegally discriminated against
him for engaging in protected activity; and that Monterey Coal Company
also is liable for this violation because it caused the letter to be
placed in his file, and because it was the owner of the job site. 1/
Following a full evidentiary hearing, the administrative law judgedenied the application and dismissed the proceedings. For the reasons
that follow, we affirm the judge.
In 1974, Monterey Coal Company began development of the Monterey
No. 2 underground coal mine near Albers, Illinois. At the time of the
violation alleged in this case, the underground portion of the mine
development was completed and coal was being mined. Monterey had
contracted with McNally-Pittsburgh, a construction firm, and with several
other firms to construct surface facilities and accomplish other related
activities at its mine. Ronnie Ross was employed by NcNally from May
1975 until August 1978 at the Monterey site.

1/
Ross also alleged that Looking Glass Construction Company, another
independent contractor at the Monterey job site, discriminated against
him. The administrative law judge's conclusion that Looking Glass did
not violate the Act was not directed for review by the Commission.

t

':~;-1
..;.. .J... I .

81-5-6

From the fall of 1975 until May 1978 Ross was a United Mine Workers
of America safety committeeman for McNally employees. In the spring of
1977, Ross became chairman of the UMWA Local 2015 safety committee,
which consisted of the members of each of the Monterey site contractors'
safety committees. While chairman, Ross continued to represent
McNally's employees as one of'their safety committeemen. He and the
other McNally committeemen toured their job site monthly and reported
safety violations to McNally's management. Toward the end of his
employment, Ross's practice was to prepare requests for inspections by
the Mining Enforcement and Safety Administration listing conditions
which Ross or his committee believed violated the 1969 Coal Act. 2/
When Ross accompanied MESA inspectors on their inspections~ he traveled
throughout the entire Monterey project and did not restrict his travel
to the McNally site. }_/
During the latter part of October 1977, an official of Monterey
Coal Company advised Charles Bradley, McNally's superintendent for
construction, that Ross had been observed in the slope area of
Monterey's underground operations, an area where no McNally employees
were working. Following this incident, Bradley instructed Bob Stearman,
McNally's project superintendent, to limit the McNally Health and Safety
Committee's inspections to McNally's work areas. Other reports of
Ross's presence in non-McNally work areas were reported to McNally
officials.
On November 4, 1977, Ross and his committee conducted a safety
inspection and prepared a request for inspection under section 103{g).
This request alleged, among others, safety violations by Looking Glass
Construction Company. This request was given to federal inspectors on
November 8 when they arrived to conduct an inspection at the Monterey
mine site. Ross and another McNally safety committeeman accompanied
the federal inspectors, as did management representatives from McNally
and Monterey"
During the course of the inspection, an oral confrontation took
place between Ross and the president of Looking Glass. McNally's construction superintendent Bradley was notified of the incident by one of
the McNally supervisors on November 8, 1977, or soon thereafter.
Bradley instructed project superintendent Stearman to write Ross a
letter to document previous oral instructions limiting the McNally
Health and Safety Committee 1 s activities to McNally 1 s work areas.
Subsequently, Ross was given a letter dated November 30, 1977, and
signed by Stearman which stated:
2/
Section 103(g) of the Act gave a representative of the miners the
right to file a written request for an inspection by MESA if he had a
reasonable ground to believe that a violation of a mandatory standard
existed. Upon the receipt of the written request, MESA was required to
inspect as soon as possible.
3/
Section 103(h) of the Act permitted an authorized representative of
the miners to accompany the representatives of the Secretary on their
inspections.

1172

This is to advise you that your duties as Project
Union Health and Safety Committeeman are limited
exclusively to McNally Operations at the Monterey Coal
Mine No. 2.
In the event of your violating the above, you will be
suspended--Subject to discharge.
This letter forms the basis for Ross's discrimination claim. Ross
acknowledged, however, that even after the issuance of the letter, he
continued to inspect McNally's and other sites and was not discharged,
reprimanded or otherwise penalized. !±/
The administrative law judge found that the disciplinary letter
was given to Ross for engaging in activities off his work site not
authorized by his employer, and was not issued in retaliation for Ross's
reporting of alleged dangers or violations to the Secret"ary. He therefore concluded that no violation of section llO(b)(l)(A) occurred and
dismissed the proceedings.
After a careful review of the record, we are persuaded that the
judge's conclusion is supported by the evidence and should not be
disturbed. The record supports the finding that the letter was
issued to protect a legitimate managerial interest in controlling
the activities of its workforce. The judge did not draw the
inference, argued for by Ross and the Secretary, that the letter was
issued in retaliation for Ross's exercise of rights protected by the
Act, e.g., notifying the Secretary of alleged hazards or violations
or accompanying federal inspectors during their inspections. The
record does not establish that Ross's exercise of his statutory rights
in fact was in any way restricted; therefore, we cannot say that the
judge erred. 5/ Compare Local Union No. 1110, United Mine Workers of
America and Robert L. Carney v. Consolidation Coal Co., 1 FMSHRC 338
(1979)0
Accordingly, the decision of the administrative law judge is
affirmed. 2_/

!:_/

We also note that the letter was removed f m Ross's employment
file prior to hearing, the McNally contract at
is completed,
and Ross is no longer employed by McNally.
5/
This decision should not be construed as affirming a policy of
limiting safety committee inspections to the employer's area in all
circumstances.
6/
In view of our disposition, we need not reach the issue of
Monterey's liability as owner for the act of its contractor, McNallyPittsburgh.

11'73

Distribution
Mary Lu Jordan, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
William Howe, Esq.
Richard A. Steyer, Esq.
Loomis, Owen, Fellman & Howe
2020 K Street, N.W.
Washington, D.C. 20006
Mr. James E. Heimann
President
Looking Glass Construction Co.
Germantown, Illinois 62245

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

LOCAL UNION NO. 781,
May 11:, 1981
DISTRICT 17,
UNITED MINE WORKERS OF AMERICA
v.

Docket No. WEVA 80-473-C

EASTERN ASSOCIATED COAL CORP.

DECISION
The issue in this case is whether miners are entitled to compensation under section 111 of the Federal Mine Safety and Health Act of 1977
("the 1977 Mine Act"), 30 U.S.C. §821 (Supp. III 1979), where a withdrawal order under section 103(k), 30 U.S.C. §813(k), was issued after
the miners had already withdrawn from the mine pursuant to their
collective bargaining agreement's non:...compensated "memorial period."
For ~he reasons stated below, we affirm the judge's finding that on the
facts present here there is no entitlement to compensation.
The facts are undisputed. At approximately 1:30 a.m. on March 19,
1980, a miner was fatally injured in the Wharton No. 4 Mine of Eastern
Associated Coal Corporation. The Wharton No. 4 miners are represented
by the United Mine Workers of America. After the accident, the miners
on the midnight shift (12:00-8:00 a.m.) withdrew pursuant to the Union's
collective bargaining agreement with Eastern Associated. The agreement
provided that following a fatality, miners would be withdrawn and the
mine closed for a 24-hour memorial period during which the miners were
not contractually entitled to compensation. ];/ At 6:19 a.m. on March
19, after the miners had withdrawn, an MSHA inspector issued a section
103(k) withdrawal order. Section 103(k) provides in pertinent part:
In the event of any accident occurring in a coal or
other mine, an authorized representative of the Secretary,
•.. may issue such orders as he deems appropriate to insure the safety of any person in the •.• mine •••.

1/

Article XXII, section (k) of the parties' agreement, the National
Bituminous Coal Wage Agreement of 1978,. stated:
"[W)ork shall cease at any mine on any shifts during which a fatal
accident occurs, and the mine shall remain closed on all succeeding
shifts until the starting time of the next regularly scheduled work
of the shift on which the fatality occurred."
The Union concedes that miners are not contractually entitled to pay
during such memorial periods. Br. 2.

l17;j

81-5-7

The order closed down the entire mine. It was terminated at 3:13 p.m.
the following day, March 20. There is no evidence that the miners
offered to, or did, return to work at any time during the memorial
period.
The Union subsequently filed a complaint for compensation under
section 111 of the 1977 Mine Act. Section 111 provides in pertinent
part:
If a coal or other mine
is closed by an order issued under
section 103, section 104, or section 107, all miners working during
the shift when such order was issued who are idled by such order
shall be entitled ..• to full compensation by the operator at their
regular rates of pay for the period they are idled, but for not
more than the balance of such shift. If such order is not terminated prior to the next working shift, all miners on that shift
who are idled by such order shall be entitled to full compensation
by the operator at their regular rates of pay for the period they
are idled, but for,not more than four hours of such shift ••.•
The Union sought 1.68 hours of compensation for the March 19 midnight
shift and 4 hours of compensation for the immediately following March 19
day shift (8:00-4:00) -- that is, for the time the 103(k) order was in
effect on the midnight shift (6:19 to 8:00 a.m.) and for four hours of
the following day shift. The administrative law judge granted Eastern
Associated's motion for summary decision and dismissed the proceeding.
2 FMSHRC 3422. The judge held that section 111 compensation is awardable only for pay lost when miners are idled as a result of one of the
designated orders. He found that these miners were idled because they·
honored their memorial period, during which they were not entitled to
pay, and that, therefore, the section 103(k) order issued after their
memorial withdrawal did not idle them and statutorily entitle them to
compensation. Id. at 3423-3424. We affirm.
Addressing first the purpose of section 111, we are persuaded, as
was the judge, by the statute's plain language and its legislative
history that Congress intended section 111 to provide limited compensation solely for regular pay lost because of issuance of one of the
designated orders. In relevant part, section 111 states that miners are
entitled to compensation only if they are "idled by" a section 103(k)
withdrawal order. This language clearly indicates that there must be a
nexus between the miners' idlement and the issuance of the section
103(k) order. Section 111 also makes clear that the statutory compensation applies only against such regular rates of pay as the miners
would have earned "during the period" of idlement had the order not been
issued or had the reasons leading to their idlement and to the order not
occurred.

1176

In addition, the compensation limits in section 111 also convince
us that the section does not .authorize an independent award of pay or
damages, but rather only a partial recompense for lost earnings. The
relevant compensation clauses of section 111 state that miners are
entitled "to full compensation by the operator ••. for the period they
are idled, but not for more than the balance of each shift" and that if
the withdrawal order is not terminated prior to the next working shift,
all idled miners on that shift "shall be entitled to full compensation
••• but for not more than four hours of such shift." Had Congress
intended section 111 to create a source of independent pay or damages,
it would not have so limited the compensation to only a portion of
pay. Y
This result is buttressed by the report of the Senate Committee
which .largely drafted the 1977 Mine Act:
[T]he primary objective of this Act is to assure the maximum safety
and health of miners. For this reason, the bill provides .•• that
miners who are withdrawn from a mine because of the issuance of a
withdrawal order shall receive certain compensation during periods
of their withdrawal. This provision, drawn from the Coal Act,
is not intended to be punitive, but recognizes that miners should
not lose pay because of the operator's violations, or because of an
imminent danger which was totally outside their control. It is
therefore a remedial provision which also furnishes added incentive
for the operator to comply with the law. [S. Rep. No. 95-181, 95th
Cong., 1st Sess. 46-47 (1977), reprinted in Legislative History of
Federal Mine Safety and Health Act of 1977, at 634-635 (1978).
(Emphasis added.)]
The Senate report not only focuses on the considerations discussed
above, but also points out the strong incentive which the section
furnishes operators to comply with the 1977 Mine Act's safety requirements. Regarding the section's safety purposes, we also find the Third
Circuitvs observations in Rushton Mining, below, concerning former
section llO(a) of the 1969 Coal Act (n. 2 below) fully applicable to
section 111:
By giving [miners] •.• compensation--albeit very limited--for
work lost as a result of withdrawal orders, [the section] encourages miners to report dangerous conditions [and for] the same
reason, ... removes a potential impediment to the inspector's
actually issuing withdrawal orders.
Interior Board
Mine Operations Appeals also interpreted
section lll's predecessor provision in the Federal Coal Mine Health and
Safety Act of 1969, ("the 1969 Coal Act"), 30 U.S.C. §801 et~·
(1976)(amended 1977), former section llO(a), to authorize only limited
compensation for earnings lost because of a withdrawal order. Cf.
UMWA, Loe. Union No. 1993 v. Consolidation Coal Co., 8 IBMA 1, 7-10
(1977). To similar effect are the Third Circuit's observations in
Rushton Mining Co. v. Morton, 520 F.2d 716, 720-722 (1975).

In sum, section 111 compensation is awardable only if there is a
nexus between a designated withdrawal order and the miners' idlement and
loss of pay, or between the underlying reasons for the idlement and pay
loss and the reasons for the order. Mere occurrence alone of withdrawal
or idlement and issuance of an order does not, by itself, justify
compensation. This case does not require us to attempt an exhaustive
definition of all conceivable relationships between withdrawal orders
and idlement sufficiently substantial to support a section 111 award.
Where an order precedes and plainly causes a withdrawal leading to loss
of pay, compensation ordinarily will be awarded; convers~ly, if a
section 103(k) order were issued while miners were out of the mine on a
preceding economic strike, or where the order has nothing to do with the
withdrawal or there was no pre-existing private claim to pay, compensation
will not be awarded. However, withdrawal situations can arise involving
more complicated sequences of events or concurrent operation of causative
factors. In resolving the latter class of cases, we think it wiser to
develop the nexus rule on a case-by-case basis. In such cases, we will
examine the relationship between the underlying reasons for the withdrawal and for the order, and will give balanced consideration both to
the limited and purely compensatory character of section 111 and to the
overall safety purposes of the 1977 Mine Act and section 111 itself.
Section 111 is designed to promote safety and protect lives, and where a
work stoppage due to safety concerns precedes an order and is occasioned
by the same exigent or emergency conditions leading to the order,
compensation may be justified to effectuate those safety purposes. Cf.
Peabody Coal Co. v. MSHA, 1 FMSHRC 1785, 1786-1788, 1790 (1979), and~
UMWA, Dist. 31 v. Clinchfield Coal Co., 1 IBMA 33-35, 40-41 (1971) (both
cases permitting compensation under former section llO(a) of the 1969
Coal Act where a work stoppage in the face of emergency conditions
preceded the withdrawal orders). We now apply these general principles
to the specific question on review. 1J
The undisputed facts show that the miners left the mine several
hours prior to the issuance of the section 103(k) withdrawal order. We
agree with the judge that the cause of the miners' departure was the 24hour memorial provision of the 1978 collective bargaining agreement, not

1f

In analyzing former section llO(a) of the 1969 Coal Act, we have
previously adopted a similar nexus rule and held that miners were idled
within the meaning of section llO(a) if "but for the withdrawal order,"
they would have worked and been paid. See, for example, Local Union
5869, Dist. 17, UMWA v. Youngstown Mines Corp., 1 FMSHRC 990, 992 (1979).
While the "but for" language is a helpful guide to resolving relationship problems in both section llO(a) and 111 cases, it was not meant to,
nor can it, be a definitive verbal formula. As we have indicated, we
must also handle such cases by balancing the policy considerations
discussed above.

1178

the section 103(k) order. Thus, even if the section 103(k) withdrawal
order had not been issued, the miners on the midnight shift (12:00 a.m.8:00 a.m.) and the day shift (8:00 a.m.-4:00 p.m.) would not have worked
or reported. There is no evidence that there were any emergency conditions present that would have independently triggered a work stoppage.
Furthermore, because the miners observed the non-compensated memorial
period, we cannot say that they would have been paid by Eastern
Associated had the withdrawal order not been issued. Under these
circumstances, the section 103(k) withdrawal order was merely an event
that occurred while the memorial period was being observed. Since the
order did not cause the miners' withdrawal and since they placed themselves in a position where they would not have been paid.in the order's
absence, we do not find a relationship between the order and idlement
sufficiently substantial to justify an award of section 111 compensation. We again emphasize that there is no evidence that the withdrawal was independently justified by exigent circumstances or amounted
to a protected work refusal.
We cannot agree with the Union's contention that denial of section
111 compensation would "supplant [the 1977 Mine Act] with a contract
provision." Br. 3. It is true that we do not decide cases in a manner
which" permits parties' private agreements to overcome mandatory safety
requirements or miners' protected rights; nor do we unnecessarily thrust
ourselves into resolution of labor or collective bargaining disputes.
See Youngstown Mines, supra, 1 FMSHRC at 993-995. However, section 111
requires us to determine whether there is a pre-existing private entitlement to pay. To make that determination, we are occasionally obliged to
examine the parties' collective bargaining agreement which fixes pay
rights. In addition, as here, we must sometimes look to the agreement
to understand the reasons for a private withdrawal. In the present
case, there is no need for contract interpretation because the parties
are agreed that the miners withdrew pursuant to the memorial provision
and have stipulated that under that provision the miners were not
entitled to pay from Eastern Associated during the memor1al period.
Similarly, the Union 9 s reliance (Br. 2-3 & nn. 2 & 3) on certain
recitations in the contract that neither party waives its 1977 Mine Act
"rights" would incorrectly transform section 111 into a statutory indemnity
against absence, loss, or surrender of private pay entitlements.
While
the Union gave up a private claim to pay, it has not waived any statutory
entitlement.
For the

1179

Distribution
Sally S. Rock, Esq.
Eastern Associated Coal Corporation
1728 Koppers Bldg.
Pittsburgh, PA 15219
Joyce A. Hanula, Legal Asst.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge William Fauver
FMSHRC
5203 Leesburg Pike, 10th Floor
Skyline Center #2
Falls Church, Virginia 22041

1180

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

May 12, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 79-397-M

v.

RALPH FOSTER AND SONS
DECISION
We directed this case for review to determine whether the administrative law judge erred in vacating a citation after he had found a
violation of 30 CFR §57.15-4. 1/ The citation issued November 3, 1978,
listed the mine as Erda CG-27 and stated that two men were drilling at
the face without safety glasses or eye protection of any kind. The
judge found the violation had occurred but vacated the citation because
"MSHA failed to prove the mine involved in the violation." Dec. at 3.
In his answer to the Secretary's petition for assessment of civil
penalties, Robert Foster, the owner of Ralph Foster and Sons, averred
that the Erda CG-27 mine had been operated in 1975, but not since that
year. The answer also alleged that, in the mine to which the citation
may have referred, the miners were cleaning their glasses at the time of
inspection, and did not violate any regulations. At the hearing Foster
testified that MSHA, at an unspecified time, sent two inspectors to
clear up the confusion regarding the mine name, and he and the
inspectors "agreed that Erda CG-27 must be the mine that we called G-3."
Tro 290 He also stated that he thought the inspector was talking about
G-3 when referring to the alleged violationo Tro 32-33.
This record clearly indicates that the question of the proper
identification of the mine was litigated and the operator knew at
which mine the violation occurred. A technical defect in the
citation which did not prejudice the operator in presenting his
defense, and which, in effect, was cured at the hearing should not
prevent a finding of liability. Jim Walter Resources and Cowin and

l/

30 CFR §57015-4 provides:
Mandatory. 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.

1181

81-5-9

Company, 1 FMSHRC 1827 (1979). See also Old Ben Coal Company, 2 FMSHRC
1187 (1980). We hold that the judge erred in vacating the citation.
Accordingly, the citation is reinstated and the case is remanded
for the assessment of a penalty.

else,

1182

Commissioner

Distribution
Mr. Robert G. Foster
Ralph Foster & Sons
2950 A 1/2 Road
Grand Junction, Colorado

81501

Ann M. Noble, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Bldg.
1961 Stout Street
Denver, Colorado 80294
Ann Rosenthal, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
'
Arlington,
Virginia 22203
Administrative Law Judge John J. Morris
FMSHRC
333 W. Colfax Ave.
Denver, Colorado 80204

1183

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

May 18, 1981

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

Docket No. WEVA 81-109 -M

v.
POCAHONTAS CONSTRUCTION COMPANY
Respondent
DIRECTION FOR REVIEW AND ORDER
The administrative law judge's Order of Default issued on April 8,
1981, is directed for review. 30 U.S.C. § 823 (d)(2)(A)(ii)(IV). The
issue is whether, under the circumstances presented, the judge's finding
that Respondent failed to respond to a Show Cause Order and waived
its right to a hearing is appropriate.
On December 12, 1980, the Secretary of Labor filed a Petition for
Assessment of Civil Penalty against Pocahontas Construction Company,
seeking penalties totaling $122.00 for three alleged violations of the
Act. No answer was filed. On March 4, 1981, the chief administrative
law judge issued an order to Pocahontas to show cause, within 15 days,
why it should not be deemed to have waived its right to a hearing and
why the proposed penalties should not be entered as a final order of the
Commission and collection procedures initiated.
The record does not
disclose any proof that service of this Order was actually made on
Pocahontas. On April 8, 1981, the judge issued an Order of Default
finding Pocahontas failed to respond to the Show Cause Order issued
March 4, 1981, holding Pocahontas in default, assessing the proposed
penalties of $122.00 as the final order of the Commission and ordering
payment within 30 days.

On April 20, 1981, Pocahontas filed its Motion to Set Aside Order
of Default alleging, in part, that it had no knowledge of the March 4,
1981 Order to Show Cause, that it had been denied due process and that
it be allowed a hearing. Pocahontas' motion is accepted as a timely
petition for discretionary review.

118,i

81-5-14

Although Respondent failed to file an answer to the Secretary's
Petition for Assessment of Civil Penalty as provided by Commission
Rule 2700.28, before the entry of any Order of Default, Commission Rule
2700.63(a) requires "an order to show cause shall be directed to the
party." A Show Cause Order does not serve its intended purpose if not
received by the party required to respond. Here, Respondent alleges it
did not receive the show cause order of March 4, 1981, and there is no
proof in the record to the contrary. Under these circumstances a
serious question of service arises and we are not prepared to summarily
rule whether service in fact was made. In view of the fa·ct that entry
of a default judgment is harsh and a dispute exists as to receipt of
the order to show cause precipitating the judgment, we are of the
opinion that the matter should be remanded.
Accordingly, the judge's Order of Default is vacated and the case
is remanded for further proceedings.

'-\~(l,\.\ili;\{ Qa;,QutLU.1 "'\\QQlQ

Marian Pearlman Nease, Commissioner

A. E. Lawson, Commissioner

118~)

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

May 18, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. VINC 74-157

v.

IBMA 76-90

OLD BEN COAL CORPORATION
DECISION

Old Ben Coal Corporation initiated this proceeding by filing an
application for review of an order of withdrawal issued March 6, 1974 9
under section 104(c)(2) of the Coal Mine Health and Safety Act of 1969,
30 U.S.C. §801 et seq. (1976)(amended 1977). The order alleged that Old
Ben had violate~30 C.F.R. §75.400. Following a hearing, the administrative law judge determined that a complete inspection of the mine.
disclosing no similar violations, intervened between the issuance, on
November 15, 1972, of the underlying 104(c)(l) notice and order and the
issuance of this 104(c)(2) withdrawal order. Accordingly, the judge
vacated the withdrawal order. The appeal of the Mining Enforcement and
Safety Administration (MESA) was pending before the Interior Department
Board of Mine Operations Appeals on the effective date of the Mine
Safety and Health Act of 1977 and, therefore, is before this Commission
for disposition. 30 u.s.c. §961 (Supp. III 1979).
In holding that a complete inspection of the mine had occurred the
judge stated, "The record is clear that the entire underground mine was
inspected by this series of spot health, safety, health and safety,
ventilation and [section] 103 inspections and that no section 104(c)(2)
orders were issued during this series." Dec. 12. We have carefully
reviewed the evidence and conclude that the judge's finding is supported
by the record. Accordingly~ the decision is affirmed. l/

E. Lawson

\..\\\OJlQU ~ 00.~HDJJ ·\lc_OlQ

Marian Pearlman Nease, Commissioner

ll

See CF&I Steel Corp. ,

Editors Note:

t FMSHRC 3459 (1980) •

A copy of the AdminiRtrative Law Judge's Decision
is attached.

1186

81-5-12

Distribution

Old Ben Coal Corp., VINC 74-157

Nancy S. Hyde, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Edmund J. Moriarity, Esq., Mark M. Pierce, Esq.
O]d Ben Coal Company
125 S. Wacker Drive
Chicago, Ill. 60606
Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th Street, N.W.
Washington, D.C. 20005

1187

United States Department of the Interior
OFFICE OF HEARINGS AND APPEALS

HEARINGS DIVISION
Room W-2426, 2800 Cottage Way
Sacramento, California 95825
April 2 9, 1976
OLD BEN COAL CORPORATION,

Application for Review

Applicant

Docket No. VINC 74-157

v.

Order No. 1 HG;
March 6, 1974

MINING ENFORCEMENT AND SAFETY
ADMINISTRATION, (MESA) ,

Mine No. 24

Respondent
UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

Vilma L. Kohn, Esq., Squire, Sanders and Dempsey,
Cleveland, Ohio, for Applicant;
Frederick W. Moncrief, Esq.~ Office of the Solicitor,
Department of the Interior 9 for Respondent MESA.

Before~

Administrative Law Judge Steiner
PROCEDURAL BACKGROUND

This action was brought by the Applicant pursuant to Section 105 of the
Federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. § 815 hereinafter referred to as the Act) for review of an Order of Withdrawal issued
on March 6~ 1974 under§ 104(c)(2) providing, inter alia, as follows:
Coal float dust ranging from a distinct black in color
to 1/2 inch deep was deposited on rock dusted surfaces
in the 6lst north belt haulage entry from the belt head
roller to the belt tail piece, and in the adjoining
crosscuts along belt a distance of approximately 2000

118H

feet, there was also coal spillage along west side of
6lst north belt, from 2 to 10 inches deep, and from
drive to 800 foot survey tag.
There has been a violation of § 75-400 of Part 75
Title 30, Code of Federal Regulations, a mandatory
health or safety standard, but the violation has not
created an imminent danger.
The violation is of such nature as could significantly
and substantially contribute to the cause and effect
of a mine safety or health hazard, and is caused by
an unwarrantable failure to comply with such standard.
The violation is similar to the violation of the mandatory health or safety standard which resulted in the
issuance of Withdrawal Order No. 1 J.A.R. on November 15,
1972, and no inspection of the mine has been made since
such date which disclosed no similar violation.
MESA inspector Harry Greiner served the subject Order at 5:30 p.m. on
March 6, 1974 on J. Green, Mine Manager on the third shift at Mine No. 24.
The Order closed the 16th north belt haulage entry. The conditions were
abated and the Order terminated at 3:00 p.m. on March 7, 1974.
The original application for review was filed on March 18, 1974. The
United Mine Workers of America filed an answer in opposition to the application on March 21, 1974. MESA filed an answer on April 1, 1974. A
hearing was held in St. Louis, Nissouri. Charles Mauzy and Guy Yattoni
testified on behalf of the Applicant; Harry Greiner testified on behalf
of MESA. The United Mine Workers of America made no appearance at the
hearing. Post hearing briefs were filed by the Applicant and MESA.
The Applicant filed an Amended Application for Review on September 23, 1974,
expressly denying that there was a violation; denying that there was unwarrantable failure to comply with any mandatory health and safety standard;
and alleging affirmatively that there is no valid Order under§ 104(c)(l)
of the Act on which the subject order can be premised; that subsequent
inspections of the subject mine have disclosed no violations similar to
those resulting in the issuance of the underlying§ 104(c)(l) Order of
withdrawa1; and that the Regulations CQdified at 30 § 75.400 et seq. were
improperly promulgated and are therefore without legal force and effect.
FACTUAL BACKGROUND
Charles K. Mauzy, employed as face foreman by the Applicant, testified
that he was working on the 6lst north belt haulage entry on March 6, 1974;
that one of his duties is the examination of pre-shift examiner's reports;
that no mining activities were being conducted on the first section of
the belt when the Order was issued; that after he was informed of the

closure by the inspector, he assigned four men to clean the belt; that one
of the pre-shift reports dated 3/6 indicated there had been spillage at
certain spots on the belt which should be cleaned; that other pre-shift
reports indicated that the belt was clean; that in his 28 years of experience in mining coal, he had never seen one-half inch of float dust extending for a distance of 2,000 feet; that such an accumulation would take
six months or more; that he had examined the belt "probably" a week
before the Order was issued and determined that there was insufficient
float coal dust on the belt to justify it to be "written up on the examiner's books" (Tr. 30); that the belt had been machine dusted; that the
rock dust on the floor along the belt line was quite thick, two to two
and one-half inches in some places; that the color was light gray which
would indicate a film of float dust on top of the rock dust; that one
belt shoveler was permanently assigned to the 2,000-foot belt on every
shift; and that he did not believe water sprays had been installed on the
subject belt on March 6th.
Guy Yattoni, witness for the Applicant, testified that in the 10 years of
the existence of Mine No • .24, there had never been a gas ignition, dust
explosion, gas explosion, or sudden release of gas necessitating evacuation; that, in his 42 years of experience in coal mining, he had never
seen a blanket of coal dust one-half inch thick extended over a distance
of 2,000 feet; and that such accumulations occur in isolated pockets and
at dumping points.
Inspector Harry Greiner testified that he was making a regular inspection,
walking all belt haulage entries when he noticed that there were no water
sprays installed to alleviate float coal dust at the belt head of the
6lst north belt where it dumps on the west belt and thereupon issued a
104(b) notice; that, as he proceeded up along the 6lst north belt, "on the
framework of it, there was quite a bit of float coal dust and along close
to the ribs where it is kind of a triangle shape, where the ribs meets
[sic] the bottom, * * * float coal dust did range up to half an inch in
depth on this framework (of the belt drive) and over close to the ribs 11 ;
that as he proceeded on up the entry to the tailpiece of the belt, the
floors were very black and the floors were also black in the crosscuts on
either side of the belt; that the specific areas where he found accumulations of one-half· inch of float coal dust was where the belt ran through
an overcast, perhaps eighty or one hundred feet and on the framework of
the drive itself; that there was float coal dust on the floor along the
ribs and very little upon the ribs; that he identified the coal dust by
its powdery-like texture and very distinct black color; that coal spillage
began at the belt drive and went inby for 800 feet on the west side of the
belt; that he did observe float coal dust extending 2,000 feet along the
belt; that, in his opinion, the spillage on the west side of the belt
could be cleaned up in six or seven hours; that he estimated the depth of
the float coal dust visually and by continually scratching ·through it
with a flat blade attached to a bar; that he did not measure the size of
the float coal dust particles; that the float coal dust could propagate

119P

an explosion; that the presence of the float coal dust did not constitute an imminent danger at the time the Order issued, but could become
dangerous if a source of ignition were present; that very few pre-shift
examiners even put float coal dust on the book; that a thin film of float
dust is "Dangerous, anticipating if something else happens. * * * It
could contribute to a health and safety hazard." (Tr. 70); that he did
not cite the operator for inadequate rock dust; that the float coal dust
would contribute to the danger of other factors such as an explosion
or fire, or the liberation of methane gas.
RELEVANT STATUTORY SECTIONS AND REGULATIONS
1.

Section 104(c) of the Act, 30 U.S.C. § 814:
(c)(l) If, upon any inspection of a coal mine, an
authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds that,
while the conditions created by such violation do
not cause imminent danger, such violation is of such
nature as could significantly and substantially contribute to the cause and effect of a mine safety or
health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator
to comply with such mandatory health or safety standards, he shall include such finding in any notice
given to the operator under this Act. If, during
the same inspection or any subsequent inspection of
such mine within ninety days after the issuance of
such notice, an authorized representative of the
Secretary finds another violation of any mandatory
health or safety standard and finds such violation
to be also caused by an unwarrantable failure of
such operator to so comply, he shall forthwith issue
an order requiring the operator to cause all persons
in the area affected by such violation, except those
persons referred to in subsection (d) of this section,
to be withdrawn from, and to be prohibited from
entering, such area until authorized representative
of the Secretary determines that such violation has
been abated.
(2) If a withdrawal order with respect to any area
in a mine has been issued pursuant to paragraph (1)
of this subsection, a withdrawal order shall promptly
be issued by an authorized representative of the Secretary who finds upon any subsequent inspection the
existence in such mine of violations similar to those

1191

that resulted in the issuance of the withdrawal order/
under paragraph (1) of this subsection until such time
as an inspection of such mine discloses no similar
violations. Following an inspection of such mine which
discloses no similar violation, the provisions of paragraph (1) of this subsection shall again be applicable
to that mine.
2.

Section 75.400 of volume 30 of the Code of Federal Regulations, 30 CFR 75.400:
Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
ISSUES

1.

What are the elements of a section 104(c)(2) order of
withdrawal?

2.

Which party has the burden of proof with respect to each
element of a 104(c)(2) order of withdrawal?

3.

Whether the 104(c)(2) order may be sustained on the basis
of the existence of a 104(c)(l) notice and 104(c)(l) order
without regard to the substantive validity of the underlying
notice and order.

4.

Whether section 75.400 was promulgated improperly and is
invalid.

So

Whether a violation of 30 CFR 75.400 occurred.

6.

Whether the violation was caused by an unwarrantable
failure of the Applicant to comply with the regulations.

7.

Whether the operator's liability for 104(c)(2) orders
ends when a single inspection or series of inspections
of the mine discloses no violations similar to those
upon which the underlying 104(c)(l) notice and order
were based.

ELEMENTS OF A 104(c)(2) ORDER OF WITHDRAWAL
A section 104(c)(2) withdrawal order may be issued if a withdrawal
order with respect to any area in the mine has been issued pursuant
to section 104(c)(l) and subsequent inspection reveals: (1) that

a similar violation of a mandatory health or safety standard occurred,
and (2) that the violation was caused by the unwarrantable failure
of the operator to comply with such health and safety standard. The
United States Court of Appeals for the District of Columbia Circuit
recently held in International Union, United Mine Workers of America
v. Thomas S. Kleppe, Secretary of the Interior, et al. (No. 75-1003,
April 13, 1976), that there is no gravity criterion required to be
met before a section 814(c)(l) withdrawal order may properly issue.
BURDEN OF PROOF
Section 4.587 of Volume 43 of the Code of Federal Regulations, 43 CFR
4.587, 1/ and section 7(c) of the Administrative Procedure Act (A.P.A.),
5 u.s.c:- § 556(d), !:../assign the burden of proof in administrative
hearings under the Act.
The burden of proof is divided in proceedings reviewing the validity
of section 104(c)(2) withdrawal orders. MESA must establish the fact
of violation by a preponderance of the evidence. See Zeigler Coal Co.,
4 IBMA 88, 102 82 I.D.
, 1974-1975 OSHD par. 19,478 (1975). The
burden of persuasion with respect to the other elements of the order
rests upon the Applicant. Kentland-Elkhorn Coal Corp., 4 IBMA 166,
82 I.D. 234,
OSHD par.
(1975). Before Applicant must
attempt to meet this burden of persuasion, however, MESA must establish
a prima facie case that the order was validly issued.

* * * In the instant case, MESA must make out a prima
facie case that the Order in issue was validly issued
pursuant to section 104(c)(2) of the Act. Although,
as we held above, MESA need not establish the validity
of the underlying section 104(c) Notices and orders,
it must establish a prima facie case with respect to
the section 104(c)(2) chain of citations, the fact of
violation, unwarrantable failure, and the other requirements for issuance of a section 104(c)(2) order.
Kentland Elkhorn Coal Corp., 4 IBMA at 173.

1J

]:./

In proceedings brought under the Act, the applicant, petitioner~
or other party initiating the proceedings shall have the burden
of proving his case by a preponderance of the evidence provided
that * * * (b) wherever the violation of a mandatory health and
safety standard is an issue the Mining Enforcement and Safety
Administration shall have the burden of proving the violation
by a preponderance of the evidence.
Except as otherwise provided by statute, the proponent of a rule
or order has the burden of proof. * * *

The Board cited Zeigler in support of this holding. Zeigler involved
an application for review of a section 104(a) imminent danger withdrawal
order. The Board interpreted 30 CFR 4.587 and section 7(c) of the
A.P.A. as follows:
We believe that although that regulation places the
ultimate burden of proof on the operator in a review
proceeding involving an imminent danger withdrawal
order, such regulation nonetheless, does not relieve
MESA from the statutory obligation of making out a
prima facie case in the first place. If, after NESA
establishes a prima facie case, the operator fails
to overcome MESA's case by a preponderance of the
evidence with respect to each element of proof in
dispute, then, MESA prevails and the operator's request for relief must be denied. 4 IBMA at 101.
This decision was cited with approval in Old Ben Corp. v. Interior
Board of Mine Operations Appeals, 523 F.2d 25, 39, 40 (7th Cir. 1975),
another section 104(a) proceeding:

* * * in practice, therefore, the burden of proof
is split, with the Government bearing the burden
of going forward, and the mine operator bearing
the ultimate burden of persuasion. We think that
this accords with the intent of Congress as expressed
in the following Committee comment on Section 7(c)
of the Administrative Procedure Act (now codified as
5 u.s.c. § 556(d)):
That the proponent of a rule or order has
the burden of proof means not only that the
party initiating the proceeding has the
general burden of coming forward with a
prima facie case but that other parties, who
are proponents of some different result, also
for that purpose have a burden to maintain.
Sen. Doc. No. 248, 79th Cong., 2d Sess., 208,
270 (1946).
Although 43 CFR § 4.587 might have been more artfully
drafted, we read it to mean simply that the petitioner
who initiates the proceedings--here Old Ben--has the
ultimate burden of persuasion. We do not think that
the regulation was inte~ded to relieve--nor, indeed,
can it relieve--the proponent of an imminent danger
order from the burden of putting forth a prima facie
case in the administrative hearings.

Pursuant to 43 CFR 4.587 and section 7(c) of the A.P.A., NESA must establish by a preponderance of the evidence that a violation of the mandatory
health and safety standards occurred. MESA Jl\USt also present a prima
facie case with respect to the other elements of the 104(c)(2) withdrawal
order. Once MESA has established this prima facie case, the burden of
persuasion falls upon the operator to establish by a preponderance of
the evidence that one or more of the elements essential to a valid
104{c)(2) withdrawal order was not present when the order was issued.
VALIDITY OF UNDERLYING 104(c)(l) NOTICE AND ORDER
MESA introduced into evidence a section 104(c)(l) notice issued September
27, 1972 (Exhibit C), and a section 104(c)(l) order issued November 15,
1972 (Exhibit B), to establish a prima facie case that the required underlying (c)(l) order and notice had been issued (Tr. 51-52). The validity
of the precedent notice and order is ndt in issue in a proceeding for a
review of an Order of Withdrawal issued pursuant to section 104(c)(2) of
the Act. Zeigler Coal Company, 5 IBMA 346, 352,
I.D.
,
OSHD par.
(1975); Kentland-Elkhorn Coal Corp., 4 IBMA 166, 171, 82
I.D. 234, 1973-1974 OSHD par. 19,633 (1975).
VALIDITY OF SECTION 75.400
The appli~ant challenged the validity of 30 CFR 75.400 based on the decision
of the Sixth Circuit in United States v. Finley Coal, 493 F.2d 285 (6th
Cir. 1974), aff'd 345 F. Supp. 62, 66 (E.D. Ky. 1972). In Union Carbide Corp., 3 IBMA 314, 81 I.D. 532,
OSHD par.
(1974), the
Board held that Finley does not hold that section 75.400 was invalidly
promulgated and that operators may be cited for violations of that
regulation,
FACT OF VIOLATION
Inspector Greiner's testimony that float coal dust was observed over
an extended section of the belt, with some concentrations, has not
been refuted. The existence of a pre-shift report dated March 6th
indicating spillage along the belt supports that testimony. Spillage,
requiring at least "spot" cleaning, occurred even though a belt shoveler
had been assigned regularly on every shift to this section of the belt.
'
Nesa has established
by a preponderance of the evidence that float coal
dust was permitted to accumulate along the belt in violation of 30 CFR
§ 75.400.

UNWARRANTABLE FAILURE
The second requirement of a valid 104(c) order is that the violation be
caused by the "unwarrantable failure" of the operator to comply with.the
regulations. Congress pointedly omitted any binding definition of "unwarrantable failure" in its list of statutory definitions embodied in

it95

section 2 of the Act, thus leaving the resolution of its meaning to caseby-case adjudication by the Secretary, with only the scantiest guidance
in the legislative history. Zeigler Coal Com~, 4 IBMA 139, 156.

* * * [T]he legislative history unmistakably suggests
that a given 104(c) violation possesses the requisite
degrees of fault where, on the basis of the evidentiary record, a reasonable man would conclude that
the operator intentionally or knowingly failed to comply £!:_ demonstrated a reckless disregard for the health
or safety of the miners. [l/J Eastern Associated Coal
Corp., 3 IBMA 331, 356.
The Board has on other occasions dealt with the definition of unwarrantable failure and has defined it as "intentional, knowing or reckless
deviations from the mandatory standard of care." Zeigler Coal Company,
4 IBMA 139, 154.
The violation in this case was the result of the Applicant's unwarrantable
failure to comply with the regulations. A pre-shift examiner's report
had shown spillage at certain spots on the belt. Admittedly, there were
no water sprays installed at the belt head to alleviate the accumulation
of float coal dust. It is clear that the violation occurred as the result
of a lack of due diligence on the part of the Applicant.

INTERVENING CLEAN INSPECTION
Applicant contends that a series of spot inspections covering the entire
mine intervened between issuance of the underlying section 104(c)(l)
Withdrawal Order and issuance of the 104(c)(2) withdrawal order under
review in this proceeding and that this series of spot inspections
constitutes an "inspection of such mine which discloses no similar
violations" thereby removing Applicant from liability for withdrawal

J/

Legislative history is a relevant authority only where the statute
is patently ambiguous. In pertinent part, the history bearing
on the meaning of unwarrantable failure appears at page 1030 of
House Comm. on Ed. and Labor, Legislative History Federal Coal
Mine Health and Safety Act, Comm. Print, 9lst Congress, 2d Session
and reads as follows: * * * The managers note that an unwarrantable
failure of the operator to comply means the failure of an operator
to abate a violation he knew or should have known existed, or the
failure to abate a violation because of a lack of due diligence, or
because of indifference or lack of reasonable care, on the operator's
part. (Emphasis added.)

1188

orders under section 104(c). Applicant also contends that a single
clean spot inspection can relieve the operator of liability under 104(c)(2).
This latter contention is without merit.
If the legislators had intended to lift liability
upon a clean spot inspection subsequent to the
issuance of a (c)(2) closure order, we think that
they would have used the words "any inspection"
rather than "an inspection" in the phrase quoted
above. The language actually employed appears to
us to direct a thorough examination of the conditions and practices throughout a mine. Indeed
the intensive and quite possibly prolonged scrutiny seems entirely called for in the case of. an
operator which may have repeatedly demonstrated
its indifference to the health or safety of
miners and where its record suggests that ·other
equally grave infractions resulting from unwarrantable failures to comply may exist elsewhere
in the mine.
Eastern Associated Coal Corp., 3 IBNA 331, 358, 81 I.D. 567,
OSHD par.
(1974), aff'd on reconsideration, In the Matter of
Eastern Associated Coal Corp., 3 IBNA 383,
I.D.
OSHD par.
(1974).

MESA concedes that a series of spot inspections may constitute a complete
inspection. This position is in accord with the Board's decision upon
reconsideration of Eastern:
Under our interpretation, as set forth in the opinion of September 20, 1974, several completed partial
or completed spot inspections of a mine may be required to constitute a "complete inspection" of a
mine in order to lift the withdrawal order liability
of an operator from the provisions of section 104(c)(2).
In the Natter of Eastern Associated Coal Corp., 3 IBNA
383' 386.
Y.tESA denied, however, that the series of clean spot inspections from
November 13. 1973, to December 19, 1973, constituted the required cominspection because they were not all health and/or safety inspections.

During this period, MESA conducted 36 spot inspections of this mine,
as follows:
Spot Ventilation

13 inspections

103(i)

13 inspections

Spot Safety

4 inspections

Spot Health & Safety

4 inspections

Spot Health

2 inspections

MESA concluded that this "SERIES OF SPOT INSPECTIONS NOVEMBER 13 to
DECEMBER 19, 1973, COVERED THE ENTIRE MINE" (Emphasis added) (Applicant's
Exhibit #1). MESA argues, however, that only the four annual inspections
of the entire mine required by section 103(a) of the Act (30 U.S.C.
§ 813(a)) qualify as complete inspections and that the initial procedure
of issuance of section 104(c) notices can be reinstated only if no 104(c)
orders are issued during one of these four inspections. This stance is
consistent with the instructions given by MESA to its inspectors with
respect to the issuance of 104(c)(2) orders.
For the purposes of "wiping the slate clean" after
the issuance of a 104(c)(l) or 104(c)(2) order and
reinstating the initial procedure of issuance of
104(c)(l) Notices before issuance of an Order under
104(c), a complete inspection of the entire mine***
must be made which reveals no unwarrantable failure
violation (a "clean" inspection). United States
Department of the Interior, MESA, Health and Safety
Manual for Orders, Notices and Report Writing, § l.2A
(1973).
A complete inspection is defined by MESA as "the examination of the entire
mine by authorized personnel to determine compliance with regulations."
United States Department of the Interior, MESA, Coal Mine Inspection
Manual for Underground Mines, § 1.5 (1973). The Manual then goes on to
specify the procedures for conducting and recording "complete" health
or safety spot inspections and hazardous spot inspections.

lo

Schedule each spot inspection toward the end result of
having inspected each section within a mine. Report
such inspections in the present manner of reporting such
inspections.

2.

After each section within a mine has been inspected through
a series of such spot inspections, an additional spot inspection shall be made of the other areas of the mine.

Report such an inspection in the same manner that spot
inspections are presently being reported; however, in the
written report of this inspection, * * * record the statement that this inspection completes a series of spot inspections which covered the entire mine.
3.

Depending on circumstances, such a series of spot inspections can be either safety, health, or combination health
and safety spot inspections. Such a series of hazardous
spot inspections must be safety type spot inspections.

4.

For reporting purposes when the last of such a series
of spot inspections is completed, report a "complete"
health or safety or a "complete 11 combination health
and safety inspection as the case may be.

The series of spot inspections from November 13 to December 19, 1973, was
not a "complete inspection" in the sense that it was not one of the four
required annual inspections and was not composed solely of health and
safety spots. It was, however, an inspection of the entire mine and
designated as such by MESA. The record is clear that the entire underground mine was inspected by this series of spot health, safety, health
and safety, ventilation and 103 inspections and that no section 104(c)(2)
orders were issued during this series. The record also establishes that
every inspector carries "all required equipment" underground (VINC 73-113,
Tr. 116); that an operator is in no way limited as to the kinds or numbers of closure orders or notices of violation he may issue during his
inspection, regardless of the type of inspection he may be conducting
(VINC 73-113, Tr. 101); that the designation of an inspection as "spot
health" or "spot ventilation" merely indicates what the inspector is
emphasizing (VINC 73-113, Tr. 118); that, in fact, an inspector "is
required to" pay attention to and cite any violation he sees (VINC 73-113,
Tr, 101~ 116); and, finally, that the operator could not tell any difference
between the different kinds of inspections (VINC 73-113, Tr. 250, 291, 297~
298),

Neither the Act as written nor as interpreted by the Board requires that
"an inspection of the mine which discloses no similar violations" under
section 104(c)(2) be comprised entirely of health and/or safety spots.
MESA has introduced no evidence to explain or refute its own designation
of this series of spots as constituting an inspection of the entire mine.
The inspections were conducted over a period of time longer than that
required to complete some of the four annual inspections (Gov't. Exh. B).
Old Ben Mine No. 24 was subjected to the "intensive and quite possibly
prolonged scrutiny" called for in Zeigler (3 IBMA 331, 358) during this
series of spot inspections. No 11 other equally grave infractions resulting
from unwarrantable failures to comply" (Id.) were found in the mine during
this period. I therefore find that a clean inspection of the entire
mine occurred prior to issuance of Order No. 1 HG, wiping the Applicant's
slate clean with respect to liability for 104(c)(2) orders and that
Order No. 1 HG was invalidly issued.

CONCLUSIONS OF LAW

,

~·

These proceedings are governed by the provisions of the
Federal Coal Mine Health and Safety Act of 1969 (30 u.s.c.
§ 801 et seq. (1970)) and the regulations promulgated in
implementation thereof.

2.

At.all times relevant to this proceeding, Applicant, Old
Ben Coal Company, was subject to the provisions of the Act.

3.

Section 30 CFR 75.400 is valid.

4.

A violation of 30 CFR 75~400 was established.

5.

The violation was the result of the operator's unwarrantable
failure to comply with the Act.

6.

A complete inspection of the mine disclosing no similar
violations intervened between the issuance of the original
104(c)(l) notice and order and the issuance of the withdrawal order at issue in this proceeding.

7.

Based on Conclusion No. 6, Order of Withdrawal 1 HG,
dated March 6, 1974, was improperly issued and should
be vacated.
ORDER

Based upon the record in these proceedings and the Conclusions of Law,
it is ORDERED:
1.

That the Application for Review be GRANTED, and

2.

That Order of Withdrawal No. 1 HG, issued March 6 9 1974 9
to Old Ben·company be VACATED.

~ ?i(~. :;,_. ·..._
R. M. Steiner
Administrative Law Judge
Distribution:
vVilma L. Kohn, Esq., Squires, Sanders, and Dempsey, 1800 Union Commerce
Building, Cleveland, Ohio 44115 (Cert.)
Frederick W. Moncrief, Trial Attorney, Office of the Solicitor, Division
of Mine Health and Safety, U.S. Department of the Interior, 4015 Wilson
Blvd., Arlington, Virginia 22203 (Cert.)
Standard Distribution

Administrative Law Judge Decisions

l~!Ol

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

1

MAY 1981

Civil Penalty Proceeding

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

Docket No. SE 80-124-M
A.O. No. 09-00265-05004

v.

Junction City Mine

BROWN BROTHERS SAND CO.,
Respondent
DECISION
Appearances:

Ken S. Welsch, Esq., U.S. Department of Labor, Atlanta,
Georgia, for petitioner;
Carl Brown, Howard, Georgia, ~ se, for the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty
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 one alleged violation issued pursuant to
the Act and implementing regulation. Respondent filed an answer in
the proceedings and a hearing was held on April 13, 1981, in Columbus,
Georgia, and the parties appeared and participated therein. The parties
waived the filing of post-hearing arguments, were afforded the opportunity
to make arguments on the record and those have been considered by me
in the course of this decision. With the agreement of the parties, I
rendered a bench decision in this matter, and it is reduced in writing
herein as required by the Commission Rule 65, 29 CFR 2700.65.
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 violation
based upon the criteria set forth in section llO(i) of the Act. Additional
issues raised by the parties are identified and disposed of in the course
of this decision.

In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:
(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3)
whether the operator was negligent, (4) the effect on the operator's
ability to continue in business, (5) the gravity of the violation, and
(6) the demonstrated good faith of the operator 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

§

820(i).

seq.

Stipulations
The parties stipulated that the respondent is engaged in a small sand
dredging operation, and the company is a fam±ly owned business employing
approximately seven individuals, and that the respondent is subject to
the Act and to MSHA's enforcement jurisdiction. In addition, the parties
agreed that the proposed civil penalty will not adversely affect respondent's
ability to continue in business, and that the respondent's history of
prior violations is reflected in exhibit P-1, an MSHA computer print-out
listing seven prior paid citations.
Discussion
The respondent has been charged with a violation of the reporting
requirements of 30 CFR S0.30(a), and the citation issued by the inspector,
No. 099168, at 11:00 a.m., on June 26, 1980, states as follows:
Operator failed to file MSHA form 7000-2 (Quarterly
Manhour Report) for 1st qt. of 1980 (Jan.-Feb.-Mar.).
This report should have been filed by 4-15-1980.
The inspector fixed the abatement time as 2:00 p.m., June 26, 1980,
and the termination notice reflects that the report was completed and
mailed on that date at 1:45 p.m.
Testimony and Evidence Adduced by the Petitioner
MSHA Inspector Allene T. Jones confirmed that she issued the citation
in question during the course of an inspection conducted at the respondent's
operation. She stated that she spoke with Mr. Steven Brown, one of the

120~

respondent's co-owners, and asked him to produce a copy of MSHA Form
7000-2, since she had information that the form had never been submitted
or received for the first quarter of 1980. Either Mr. Brown or his
secretary filled out a new form while she was at the mine, and Inspector
Jones took it with her and mailed it for the respondent (Tr. 28-32).
Inspector Jones testified that the law requires the form in
question to be submitted, and that the information which is filed is
used for the compilation of violation and accident frequency rates.
She also identified a copy of the form in question (exhibit P-3), and
stated that Steven Brown told her that the form was not submitted
because his father did not want to file any forms and usually "tossed
them in the trash can" (Tr. 32-35). On cross-examination, Inspector
Jones explained the various computer codes stated on the fact of the
form, and explained the rationale for the requirement that the form be
filed with MSHA (Tr. 35-39).
MSHA Supervisory Inspector Reino .Matson testified that prior
to the issuance of the citation in question, namely, in December of
1978, he discussed the requirements of MSHA Form 7000-2, with both Steven
and Carl Brown at their office. Respondent had failed at that time to
file the quarterly report, and during the discussion Mr. Carl Brown
stated that any correspondence from MSHA usually goes in "file 13", and
he pointed at the waste paper basket. Mr. Matson stated further that
he explained the results of the failure to file the form, advised
Mr. Brown that he would have to issue a citation if he did not file the
form, and then went to his car and obtained some blank forms for him.
Mr. Brown's son Steven advised Mr. Matson at that time that he would
file the form, and it was in fact filed, but Mr. Matson issued no citation
at that time (Tr. 40-47). Mr. Matson also explained the rationale for
the form and the information that is required to be submitted, and
indicated that the information is also used for the scheduling of inspections
at those mines which show high accident and violation rates (Tr. 5759).
Respondent 1 s Testimony and Evidence
Respondent was given a full opportunity to present any testimony
or information it desired in defense of the citation. Both Mr. Carl
Brown and Mr. Steven Brown were afforded an opportunity to state their
positions, and with my permission, were afforded an opportunity
to record the entire hearing with their own tape recording device.
Mr. Carl Brown candidly admitted that he threw the form away (Tr. 37).
He also alluded to a recent survey he received from the U.S. Department
of Interior solicitor certain information concerning his mining
operation (Tr. 40), and throughout the hearing expressed his displeasure
with forms in general.
In defense of the citation in question, both Mr. Carl Brown
and Mr. Steven Brown stated that they felt coerced by the cautionary
statement which appears at the top of the form (exhibit P-3),

which states the criminal sanctions of fines of $10,000 and imprisonment for five years for making false or fraudulent statements on the
form. And, while the statement distinguishes between civil sanctions
under the Act, it is altogether possible that they did not distinguish
the civil sanctions from the criminal sanctions. Further, it seems
clear to me that respondent still believes that. the information
required to be submitted has. no rational relationship to the safety of
its employees (Tr. 42, 53, 54, 59, 62, 64).
Findings and Conclusions
Fact of violation
Petitioner's evidence establishes that the respondent failed to
timely file the required report form in question and the respondent does
not dispute this fact. As a matter of fact, Mr. Carl Brown admitted
that he threw the form away "in the round file" as so much "junk mail".
Aside from his obvious displeasure of Government regulations, his
defense to the citation was basically ·an assertion on his
that the
information required by the form has no rational relationship to the
safety of his work force. One additional defense made during the hearing
by Mr. Brown's son Steven, was that respondent simply does not take
kindly to being "coerced or forced" to file any forms by any Governmental authority. Both defenses are rejected. I conclude that the
petitioner has established a legitimate need for the information in
order to carry out part of its statutory duty pursuant to section 103
of the Act •. As for the asserted coercion, while there may have been
some initial confusion on the part of the respondent with respect to
the ramifications of failing to file the form, particularly with respect
to the criminal penalty provisions for making false statements as stated
on the face of the form, as well as the cautionary statement regarding
civil penalties which could be levied for failing to file the information, I believe that any ambiguity or misunderstanding was cleared up
at the time the form was submitted to terminate the citation. Under
the circumstances, the citation is AFFIRMED.
Size of Business and Effect of the Penalty on Respondent 1 s Ab
Continue in Business

to

The parties stipulated that the respondent is a small family owned
sand dredging mine operator, and I find that the penalty assessed in
this case will not adversely affect respondent's ability to continue
in business.

I conclude and find that the citation issued in this case is nonserious and the petitioner as well as the inspector's who testified in
this case conceded as much.
Negligence
Although I do not condone Mr. Carl Brown's act of fhrowing the
form away as so much "junk mail", I can understand his initial frustration

1?0~

at being required to execute a form which calls for the submission
of a variety of information, and which contains notices regarding
serious civil and criminal penalties for failure to file or for filing
false information. Further, I have considered the fact that Mr. Brown
may not have clearly understood the ramifications of his symbolic act
of defiance, and considering the volume and substance of all of
the letters or protest from Mr. Brown which are a matter of record, it
is obvious that Mr. Brown is not too enchanted with the.filing requirements of the cited regulation. Nonetheless, since I have concluded that
petitioner has shown a legitimate interest in compiling the type of information required by the form as part of its enforcement of mine health and
safety, and since it is a regulatory requirement based on the provisions
of the Act, compliance is expected of all mine operators, including this
respondent. Hopefully, such compliance will be voluntary, and that in
the future respondent will comply with the law.
Petitioner's testimony reflects that Mr. Brown was put on notice
as early as 1978, that the form in question had to be submitted. As a
matter of fact, the inspector obtained the form for him and helped him
fill it out. Therefore, I believe that respondent had prior notice of
the requirements of the regulation in question, and while his subsequent
failure to file borders on gross negligence, I have considered the fact
that respondent may have been confused as to what was required and find
that the citation in question here resulted from respondent's failure to
exercise a reasonable care amounting to ordinary negligence.
Good Faith Compliance
The instant citation was abated with the patient assistance of
the inspector, and after some prodding by MSHA. Accordingly, I find
that respondent exhibited no extraordinary efforts at compliance.
Further, petitioner presented evidence and testimony that while the
citation in question .was abated by the filing of the form by Mr. Steven
Brown, two subsequent forms were returned to MSHA by the respondent and
were not completed (Exhibits P-4, P-5). No additional citations
were issued for these acts of noncompliance, and Inspector Matson
explained that it is his policy not to issue citations in these
circumstances while a contest or litigation is pending. Since section
104(a) of the Act mandates that citations be issued with reasonable
promptness, MSHA may wish to consider the wisdom of such a policy.
My observation in this regard is not intended as criticism of the
inspector since I believe he acted with remarkable restraint and good
judgment considering the fact that he was dealing with a somewhat
recalcitrant operator. Just as Mr. Brown has exhibited his frustration,
so too have the inspectors who have to deal with him.
History of Prior Violations
Respondent's prior history of violations reflects that for the
period August 14, 1978, through August 13, 1980, respondent has paid
civil penalties amounting to $324 for seven violations of mandatory

1207

safety standards. Based on this prior record, I cannot conclude
that this history warrants any increase in the penalty assessed in this
case for the citation which I have affirmed.
Penalty Assessment and Order
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
and find that a civil penalty in the amount of ten ($10) dollars is
reasonable and appropriate for Citation No. 099168, June 26, 1980, 30
CFR 50.30(a), and respondent IS ORDERED to pay the penalty within
thirty (30) days of the date of this decision.
Postcript
By letter dated April 22, 1981, Mr. Carl Brown stated that he
wished to appeal my decision affirming the citation and imposing a ten
dollar civil penalty for the violation. Mr. Brown states that his appeal
is based on "public sympathy". While the letter was filed after my
bench decision was rendered, it was filed before my decision was reduced
to writing as required by the Commission's rules. Under the
circumstances, any appeal rights which respondent may have begin to
run as of the date of this written decision, and I am enclosing a copy
of the pertinent Commission procedural rules for filing such appeals.

Enclosure
Distribution:
Ken W. Welsch, Esq., U.S. Department of Labor, Office of the Solicitor,
1371 Peachtree St., NE, Rm. 229, Atlanta, GA 30309 (Certified Mail)
Carl Brown, Brown Brothers Sand Co., Box 32, Howard, GA 31039 (Certified
Mail)

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

4
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA), on
behalf of JAMES FRANKLIN COULTER,
Complainant,

v.
COTTER CORPORATION,
Respondent.

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

MAY 1981

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE
DOCKET NO. WEST 81-11-DM
MINE: Cotter Mill

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

DECISION AND ORDER
On April 23, 1981, the parties to this proceeding filed with the
Commission a Stipulation of Settlement, Consent, and Motion seeking an
agreed disposition of the case.
Under the terms of the stipulation, the parties agree that respondent
shall compensate James Franklin Coulter in the amount of $1,000.00 for loss
of back wages and other expenses resulting from his discharge; that
respondent shall expunge the employment record of James Franklin Coulter of
any adverse references relating to his discharge; and that James Franklin
Coulter shall accept the above stipulations as full settlement of the claim
giving rise to this case.
By joint motion, the parties therefore seek an order providing that
within 40 days respondent tender the agreed upon sum to complainant; that
respondent expunge from complainant's employment record any adverse
references relating to his discharge; that respondent transmit to
complainant a copy of his employment record reflecting the deletion of any
adverse references relating to his discharge; and that the confidential
files of respondent us attorney may be introduced as evidence in any
subsequent proceeding brought by complainant against respondent relating to
his discharge.
Given complainant's consent to the terms of the settlement and finding
that such settlement will effectuate the purposes of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 .::.E_ seq., it is
ORDERED: that the settlement agreed to by the parties is hereby
APPROVED, that the joint motion is hereby GRANTED in full and, that this
case is hereby DISMISSED WITH PREJUDICE.

Distribution:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Winston L. Duke, Esq.
Cotter Corporation
9305 West Alameda Parkway - Suite 201
Lakewood, Colorado 80226

l?J(l

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

6

MAY 1981

Civil Penalty Proceeding

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

Docket No. SE 81-10-M
A.O. No. 09-00264-05005

v.

Rollo Pit

CRAWFORD COUNTY MINING, INC.,
Respondent
DECISION
Appearances:

Ken S. Welsch, Attorney, U.S. Department of Labor,
Atlanta, Georgia, for the petitioner;
Curt B. Jamison, Atlanta~ Georgia, for the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil
penalty 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 one alleged violation
issued pursuant to the Act and the implementing mandatory safety and
health standards. Respondent filed a timely answer in the proceedings
and a hearing regarding the proposal was held on April 14, 1981, in
Macon, Georgia, and the parties appeared and participated therein.
Although given an opportunity to file post-hearing briefs and/or
proposed findings and conclusions, the parties declined to do so.
Issues
The principal issues presented in this proceeding are (1)
whether respondent has violated the provisions of the Act and implementing regulation 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 violation based upon the criteria set forth in section llO(i)
of the Act. Additional issues raised by the parties are identified and
disposed of in the course of this decision.
In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:

(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, {3)
whether the operator was negligent, (4) the effect on the operator's
ability to continue in bu~iness, (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. § 820(i).

3.

Commission Rules, 29 CFR 2700.1 et ~·
Stipulations

The parties stipulated that respondent is subject to the Act,
that it engages in mining activities, the products of which affect
inter-state conunerce, that it employs approximately 24 individuals at
the subject mine, and that the mine operates one-to-two shifts, 5-1/2
days a week. Respondent's history of prior violations is reflected in
exhibit P-1, an MSHA computer printout reflecting 18 paid citations
for a 24-month period November 20, 1978 through November 19, 1980
(Tr. 6-10).
Discussion
Citation .No. 099125, 6/12/80, alleges a violation of 30 CFR
56.11-27, and the condition or practice described by the inspector
is as follows (exhibit P-2).
The allon cyclone was not provided with a
work platform or handrails. Men had to starid
on s
wooden boards, when work was performed. Persons could fall about SO feet to
to the ground.
The inspector established the initial abatement time as July 21,
1980, but extended this date to September l, 1980, for the following
reason (exhibit P-2):
The company is presently deciding whether to
build a platform on the allon cyclone or to build
a new installation. Safety belts and lines are
to be worn at all times on the cyclone until
this construction is completed.
The citation was terminated on September 10, 1980, when another
MSHA inspector found that compliance had been met, and the justification

1212

for the termination is described as follows (exhibit P-2): "A
walkway with handrails were installed around the top of the Allon
Cyclone area 0 •
MSHA Inspector Steve Manis confirmed that he conducted an
inspection of respondent's mine on June 12, 1980, and that he was
accompanied on his inspection rounds by Larry Jamison, the mine manager.
Inspector Manis also confirmed that he issued the citation in question
after determining that the Allon cyclone did not have work platforms
installed where employees were required to perform work. Mr. Manis
identified three photographs taken by a fellow inspector at the cyclone
location in question, and he.identified three areas or "levels" of the
structure which concerned him (exhibit P-3). He estimated the height
from the top of each level to the ground level to be 50 feet from the
extreme top level, 40 feet from the second level, and 30 to 35 feet
from the third level (Tr. 12-21).
Inspector Manis testified that the purpose of the cyclone is to
separate the fine and coarse particle.s being pumped into it by water
pressure. He determined that employees were required to perform work
on the cyclone structure after being told that this was the case by an
employee, and he also observed the presence of a fixed, permanent
metal ladder attached to the structure, as well as several wooden
2 x 6 boards which were in place at the three levels. He also observed
that the rungs of the metal ladder were worn and shiny, which indicated
to him that the ladder was used rather frequently. All of these
factors led him to conclude that employees were required to climb onto
to the cyclone structure to perform work on a regular basis (Tr. 21-22).
Mr. Manis testified that he was told that employees had ocassion
to climb the cyclone ladder once or twice a week to go to the top of
the cyclone. He was also told that if there is a lot of work to perform
on the cyclone someone may have to stay at the top all day. In such
situations, he would not accept the use of a safety belt as compliance,
but would require the use of a work platform (Tr. 62-63). Although
he observed no one on the ladder or the cyclone on the day of his
inspection, he was told that the work performed included the changing
of the position of the cyclone apex as well as the changing of piping
(Tr. 64). He also stated that he was told that the purpose of the boards
was to facilitate someone standing on them while performing work (Tr. 64).
On cross-examination, Inspector Manis confirmed that he issued the
citation because he believed the entire cyclone location where boards
were installed for the purpose of facilitating access to the areas
described were not approved working platforms (Tr. 23). In further
explanation as to why he issued the citation in question, even though
he had issued another citation at the same time for failure by the
respondent to provide safety belts on the cyclone, Mr. Manis stated
that he could have issued three separate work platform citatiorefor each
of the levels which were not provided with platforms. He also explafned

that he did not expect the respondent to construct a platform at every
area on the cyclone where an employee had to reach for the purpose of
performing work. As an example, he cited the cyclone pipeline where a
safety belt would suffice because a platform could not be constructed
around the pipeline. However, during the construction of the platform
and while it was being ins'talled, a safety belt would have to be worn
if an employee had to climb the structure to perform some work (Tr.
36-37).
Respondent's Testimony and Evidence
Respondent presented no testimony from any witnesses with respect
to the citation. However, respondent's representative Curt Jamison
was given a full opportunity to cross-examine the inspector, as well as
make an argument in defense of the citation. With respect to the middle
level cyclone location, Mr. Jamison asserted that it was used only to
store a wrench and other tools used by employees while they were standing
on the lower level boards. The mid-level board was only used to facilitate
the placing of a wrench, and inspector Manis confirmed that he observed
such a wrench there and did not dispute Mr. Jamison's assertion that no
employee stood on the mid-level board to perform any maintenance
or work. Mr. Jamison conceded that an employee is required to stand on
the lower level board "every couple of weeks" to unbolt and replace
a discharge portion of the cyclone with a wrench (Tr. 65-67)'. In
addition, Mr. Jamison conceded that someone may have ocassion to go to
the lower level of the cyclone "a couple of times a week" (Tr. 67).
With regard to the top portion of the cyclone, Mr. Jamison ass.erted
that the only reason one would have to go there would be to repair
a leak in the pipe. In his view, this was not a regular chore, that
there are months at a time when no one goes to the top level, and that it
is not a daily occurrence (Tr. 67). Mr. Jamison also asserted that
abatement was achieved by installing a work platform at the top and lower
levels of the cyclone (Tr. 69). It was his view that any danger which
may have existed, existed at the top portion of the cyclone and not the
lower portion (Tr. 69).
Findings and Conclusions
Fact of Violation
In this case, respondent is charged with one violation of the
provisions of mandatory safety standard 30 CFR 56.11-27, which provides
as follows:
Scaffolds and working platforms shall be of
substantial construction and provided with
handrails and ~aintained in good condition.
Floor boards shall be laid properly and the
scaffolds and working platforms shall not be
overloaded • Working platforms shall be provided
with toeguards when necessary.

12.ltf

During the course of the hearing, respondent verified the fact
that Inspector Manis issued a second citation (No. 99126) on June 12,
1980, at precisely the same time as the one in issue and that it was
issued for failure by the respondent to have a safety belt or line on
the cyclone for use of employees who had to climb onto it to perform
work, as required by section 56.15-51. Respondent produced a copy of
Mr. Manis' narrative statement executed at the time he issued the safety
belt citation which reflects that respondent may have been aware of the
requirements for safety belts through a prior inspection conducted
at the mine site (Tr. 27-29).
In its answer filed on February 17, 1981, to the petitioner's
proposal for assessment of civil penalty, respondent asserts that the
citation in question is essentially a duplication of the safety belt
citation issued by Inspector Manis. Respondent paid the penalty
assessment for that citation, and since the same condition or practice
is described in both citations, respondent believes it is being unduly
penalized for the same violation. Respondent also maintains that the
fact the supposedly dangerous conditions were abated renders any other
potential citation regarding the same area moot.
Respondent's argument is that the previous citation issued by
Mr. Manis for the failure to provide a safety belt on the cyclone was
abated by the respondent when it provided the required
belt or
line. Since the inspector was concerned about the hazardous location
at the top level of the cyclone, respondent maintains that by providing
a safety belt, that somehow eliminated the hazardous condition, and that
it is patently unfair to cite the respondent a second time for the
identical hazardous condition. Aside from the fact that the respondent
does not believe that the cited conditions were hazardous or dangerous,
respondent considers the condition described by the inspector as one
single assertedly hazardous condition, and in effect argues that to cite
the respondent for two separate violations places him in jeopardy twice
for the identical single condition.
Respondent asserted that when he discussed the matter with an MSHA
conference officer, he was told that the reason two citations were issued
was that the inspector was concerned with the lack of
belts at
the very top of the cyclone, and the lack of substantial work platforms
at the lower levels of the cyclone. In short, respondent was advised
that two citations were issued because of the fact that two dangerous
conditions were presented (Tr. 27-35).
Respondent maintains that it was led to believe that
belts were required at the top location of the cyclone, and its position
is that if a safety belt suffices to protect someone at the top, it
surely should be acceptable at the two lower levels. Since Inspector Manis
was concerned about the entire cyclone structure when he issued citation
099125, the use of safety belts at all three levels which concerned him
should suffice as compliance. In short, respondent argues that the

use of safety belts precludes the need for the installation of work
platforms. The theory of respondent's case is stated as follows at
pg. 41 of the hearing transcript:

MR. JAMISON: I do. Mr. Manis has testified,
however, that this citation 099125 is the whole cyclone
area, top to bottom -- top, middle, and bottom.
JUDGE KOUTRAS:

That's right.

MR. JAMISON: So if safety belts suffice fo~ safety
at the top level, surely they suffice for safety at the
middle or bottom level.
JUDGE KOUTRAS: Are you suggesting if you use a safety
belt, you don't need platforms?
MR. JAMISON:

Yes.

JUDGE KOUTRAS: What you're saying, in other words, if you
have a safety belt and there's no requirement that you have
scaffolds and working platforms, et cetera, et cetera?
MR. JAMISON: Based on the reasoning behind there being
two citations to start with.
MSHA's interpretation of the requirements of section 56.11-27, was
succintly stated by its counsel at pages 42, and 44-45 of the transcript.
MSHA's position is that work platforms of the type required by the
standard were required to be installed at those locations on the cyclone
where the respondent had placed the 2 x 6 boards. Once the installation
of work platforms is complete, respondent would be expected to use the
platforms while performing regular or frequent work or maintenance on
the cyclone at those locations. However, in those areas on the cyclone
where sporadic or infrequent work or maintenance is performed, respondent
may use safety belts or lines in lieu of constructing "platforms. In
addition, during the time that a work platform is being constructed,
respondent would be expected to use safety belts or lines until such
time as the platform construction is completed.
I take note of the fact that the written description of the condition
or practice cited by the inspector on the face of the citation, when
read together with the abatement or termination notice issued by another
inspector,coRveys the clear impression that the inspector was concerned
with only one hazardous location on the cyclone structure, namely the
top level. During the course of the hearing, respondent asserted that
it was unaware of the fact that inspector Manis was concerned with three
locations on the cyclone, an,i respondent indicated further that during
several discussions with MSHA's office of assessments and the solicitor's
office, he was led to believe that the use of safety belts at the top
location of the cyclone was sufficient for compliance.

MSHA's counsel candidly conceded that he had discussed the
matter with the respondent in advance of the hearing and that he emphasized
the fact that the frequency and nature of the work required at any cyclone
location would dictate whether a platform or safety belt was required for
compliance (Tr. 47). Counsel pointed out that in this case, it was his
understanding that respondent installed platforms at all three cyclone
levels and has also provided safety belts for the other areas where
employees were required to work (Tr. 48). Respondent conceded that he
installed the platforms because there are times when there are more
employees present then there are belts (Tr. 51).
While there may have been some confusion as to 1 precisely what was
required to achieve compliance in this case, I believe that the confusion
came after the time the inspector issued the citation for the lack of
platforms and safety belts. My analysis of the testimony of Inspector
Manis in support of the citation in question leads me to conclude
that he was concerned with two distinct hazards when he issued the two
citations. His first concern was that the respondent was using 2 x 6
wooden planks as a work platform, and since the planks were not securely
in place and lacked handrails, he obviously believed they did not meet
the requirements of section 56.11-27, and presented a hazard to anyone
standing on them while performing work at the cyclone locations which
he testified about. An additional concern was the fact that he believed
employees had at some time been at the top of the cyclone without a belt
because he saw no evidence that belts were being used or located on the
cyclone at the time of his inspection. Respondent stated that he did
not discuss the situation with Inspector Manis'at the time the citations
issued, and that all of the subsequent conversations and discussions
concerning the two citations came at later times during the informal
conferences with MSHA officials (Tr. 51).
Section llO(a) provides that "each occurrence of a violation of a
mandatory health or safety standard may constitute a separate offense".
Accordingly, it seems clear to me that any conditi~n or practice found
by an inspector during the course of an inspection may constitute a
violation of one or more mandatory standards if the conditions cited
warrant such a conclusion. On the facts presented in this case it seems
clear to me that Inspector Manis intended to cite the respondent for a
violation of section 56.11-27 on the basis of his conclusion that the
respondent failed to install the required working platforms in question.
The fact that he also, at the same time, cited the respondent for failing
to provide safety belts where there was a danger of· falling, does not
render the platform citation illegal or improper. Respondent had an
opportunity to challenge the safety belt citation but decided to pay
the assessment for that citation. Any confusion which may have resulted
with respect to the application of sections 56.11-27 and 56.15-5, occurred
after the citations issued and during the conferences held on the
proposed assessments.

12:17

As I observed during the hearing, the conditions cited by
Inspector Manis on the face of the citation which he issued do not
include the fact that he was concerned with three distinct unprotected
areas of the cyclone in question. Further, the abatement and termination
notice reflects that a walkway with handrails was installed at the top
area of the cyclone. After consideration of the testimony and evidence
presented by the parties, I find that the middle level which concerned
the inspector was hot used as a work platform. Respondent's evidence
that it was used only to facilitate the storage of a wrench and other
tools and MSHA has not rebutted this fact. Under the .circumstances,
if that were.the only location cited or testified to by the inspector
I would have to vacate the citation. As for the lower and top levels,
the evidence establishes that work was performed from those locations
and while the gravity of the citation insofar as the lower level
is concerned may not have been as great as that which prevailed at
the very top of the cyclone, the fact is that petitioner's evidence
establishes that both levels were unprotected. Accordingly, I conclude
and find that petitioner has established a violation of section 56.11-27,
and the citation is AFFIRMED.
Size of Business and Effect of the Penalty on Respondent's Ability to
Continue in Business.
I conclude and find that the respondent is a small-to-medium sized
operator and absent any evidence to the contrary, which has not been
forthcoming, I cannot conclude that the civil penalty assessed by me
for the citation in question will adversely affect respondent's ability
to continue in business.
History of Prior Violations
Exhibit P-1, reflects that respondent has paid civil penalty
assessments for 18 prior citations issued during the period November 20,
1978, through November 19, 1980, and there are no repeat violations of
section 56.11-27. Considering the size of respondentrs mining operation,
I cannot conclude that this history of prior citations warrants any
increase in the penalty assessed by me for the citation which I have
affirmed.
Good Faith Compliance
The evidence adduced in this case establishes that the respondent
achieved compliance by constructing protective working platforms on the
cyclone in question. Accordingly, I find that respondent exercised
normal good faith compliance in abating the conditions cited.
Negligence
Petitioner established that the respondent has another similar
cyclone in operation on its property and introduced a photograph.
of that cyclone, which clearly shows that a permanent work platform is

in place around the entire structure (exhibit P-4). Respondent
asserted that this cyclone was constructed some 20 years ago, and that
since it is locate~ in the middle and above four large coned-shaped
bins, it presents a hazard of someone falling between the bins straight
down to a concrete walkway. This is the reason why a platform was
installed (Tr. 54).
Respondent recognized the hazardous location of the "old" cyclone
and that is the reason it constructed a permanent type working platform
at that location. Its failure to provide similar protection for the
cyclone cited in this case was based on its conclusion that it was not
hazardous or dangerous. While this conclusion on the respondent's part
may be true for the lowest or third level of the cyclone, I believe that
the respondent should have been aware of the fact that the very top
location of the cyclone which was accessible by the fixed ladder presented
a hazard when employees were required to go there to perform maintenance
or other work. Since the evidence establishes that this was not an
infrequent occurrence I concltlde that respondent failed to exercise
reasonable care to prevent the condition cited by the inspector at that
location. Accordingly, I find that the citation resulted from ordinary
negligence by the respondent.
Gravity
Inspector Manis believed that anyone falling from any of the cyclone
locations depicted in thepha::ographic exhibits would likely strike
the hard ground below and sustain serious injuries. Respondent disputed
this fact and asserted that while one falling from the very top of the
structure fifty feet below to hard ground would likely suffer fatal
injuries, if he fell from the lower third level, he would likely suffer
no injuries since he would fall into soft sand from a very shoit distance
(Tr. 25).
Mr. Manis also testified that at the time he issued the citation
in question, he observed no one on the structure, tha~ there were no
safety belts on the cyclone, and someone told him that none were on
the premises, but he did not look for any (Tr. 58). Further, while
he indicated that there were sand piles present on three sides of the
unprotected cyclone, one side did not contain a sand pile below, and
if an employee fell from the very top of the cyclone to the ground
level below, some fifty feet, he would likely suffer serious injuries.
I conclude that the failure to install the work platform called for
by the cited safety standard in question presented a serious situation
which could have resulted in injuries in the event some one fell from
the top of the structure. Of course, the severity of any inJuries
would depend on the particular facts and circumstances presented at
any given time. I believe that an unprotected area of the cyclone
where men were required to work presented a serious condition. Accordingly,
I find that the citation cited was serious.
·

1219

Penalty Assessment and Order
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
and find that a civil penalty in the amount of $125 is reasonable and
appropriate for Citation No. 099125, June 12, 1980, 30 CFR 56.11-27,
and respondent is ORDERED to pay the penalty assessed within thirty (30)
days of the date of this decision.

4<'4/- ,!;;:~

1!
· ~-t;~ ;<:'. rfo~tras

Administrative Law Judge

Distribution:
Curt B. Jamison, Crawford County Mining, Inc., 3166 Maple Drive,
NE, Rm. 226, Atlanta, GA 30305 (Certified Mail)
Ken Welsch, Esq., U.S. Department of Labor, Office of the Solicitor,
1371 Peachtree St., NE, Rm. 330, Atlanta, GA 30367 (Certified
Mail)

....t ')'."JP
'·,

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

MAY 1te1
Contest of Order

ITMANN COAL CO:MPANY,
Applicant

v.

Docket No. WEVA 80-226-R

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

Itmann No. 3 Mine
Respondent

=·

DECISION
Appearances:

Karl T. Skrypak, Esq., Counsel for Itmann Coal Company,
Pittsburgh, Pennsylvania, for Applicant;
Michael Bolden, Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, for Respondent.

Before:

Judge William 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~·,
to review an order of withdrawal issued by a federal mine inspector,under section 104(d)(2) of the Act. The case was heard at Charleston, West Virginia.
Both parties were represented by counsel, who have submitted their proposed
findings, conclusions, and briefs following receipt of the transcript.
Having considered the contentions of the parties and the record as a
whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following:
FINDINGS OF FACT
1. At all pertinent times, Applicant, Itmann Coal Company, operated a
coal mine known a~ the Itmann No. 3 Mine in Wyoming County, West Virginia,
which produced coal for sales in or substantially affecting interstate
commerce.
2. The Cabin Creek belt conveyor at Mine No. 3 is about 1,300 feet
long. The mine liberates about 1,600,000 cubic feet of methane in a 24-hour
period and there are extra exhaust fans at the tailpiece to draw methane out
of the mine.

1221

3. On January 21, 1980, federal inspector James F. Bowman checked Applicant's mine report books and noticed an entry on January 10 that the Cabin
Creek crossbelt conveyor needed rock dusting. No subsequent entry showed that
action had been taken to rock dust this area. A notation on the evening
shift on January 11 read: "The CC5 cross needs cleaning between the airlocks
and rock dusting." There was a similar entry for the evening shift on
January 17. On the day shifts of January 11 and January 17, 1980, Charles
Martin apparently rock dusted the Cabin Creek 5 panel crossbelt. Applicant's
Exhibit No. 5 is a statement by Charles Martin that he rock dusted the Cabin
Creek 5 crossbelt on January 11. The corrective action for January 17 was
not reported in the books until after the January 21 inspection.
4. Normally, a certified belt examiner inspects the mine to see that
surfaces are rock dusted and, if rock dusting is needed, he makes a notation
in the report books. Regular employees are not authorized to change the
report books so that, even if the condition has been corrected, the belt
examiner's notation in the report books remains unchanged until he makes
another inspection of the area and is satisfied that surfaces are rock dusted.
5. Inspector Bowman told Mr. Donnie Coleman, Applicant's safety supervisor, about the entries in the books and said that he wanted to see why no
action had been taken. The inspector prepared to go underground with his
rock-dust kit, which contained a 20-mesh screen to screen out oversized
particles, a small collecting pan, and a brush.
6. Inspector Bowman and Mr. Coleman inspected the Cabin Creek belt
beginning at the 6 panel 1 header 5 panel cross tailpiece. There were two
electricians working on a transformer when they arrived and the belts were
in operation.
7. They proceeded from the tailpiece along the left side of the belt for
about 100 feet and came to a series of cribs just beyond two rectifier starting
boxes. The inspector observed float coal dust in this area, and took a "skim"
sample from the cribs. A skim sample is a sampling technique generally used
to test float coal dust. This method is not described in the MSHA inspectors'
Underground Manual, but it is taught to inspectors in training courses. The
sample is taken by brushing into the collection tray an area of float coal
dust about 6 inches wide and one-sixteenth to one-eighth inch deep. The
inspector placed the samples in a plastic bag and sealed the bag. He did
not first pass the sample through a screen.
8. They proceeded along the belt to an entry about 20 feet from an airlock. The inspector took a skim sample of float coal dust from cinder blocks
that had been removed from a stopping and stacked in the entry. The inspector
also took a skim sample from behind a crib about 10 feet from the cinder
blocks. He placed both samples in a bag and marked the bag.
9. Inspector Bowman and Mr. Coleman continued along the belt and,
between the last area he sampled (above) and an airlock, the inspector
observed that the floor was extremely black and that the ribs and roof were

1222

covered with float coal dust. He also observed that the area beneath the
accumulations had been rock dusted. The heaviest concentrations of float
coal dust were near an airlock and a series of cribs; in this area he took a
"half-floor" sample by scraping a band about 1 inch deep and 6 inches wide
over half the floor width. He. could not take a sample on the other side of
the belt because the belt was in operation and there was no crossover and
no cut-off switch to stop the belt. The cut-off switches are at either end
of the belt. However, he could see accumulations on the other side. He
screened the half-floor sample, placed it in a bag and tagged it for
analysis.
10. About 600 feet from the above sample, the inspector took his last
sample, which was another half-floor sample, inby the belt head near a
13,200-volt cable and underneath and on the right side of the belt, where
he found accumulations of loose coal, coal dust, and float coal dust. The
accumulations ranged in depth from a quarter of an inch to about 18 inches.
11. After the inspector took this sample, he told Mr. Coleman that he
was going to issue a section 104(d)(2) order of withdrawal. He later issued
the order that day. The order of withdrawal reads in part:
Where rock dust was applied in Cabin Creek 5 cross belt
conveyor entry it was not maintained to the required 65 percentum. Samples were taken. The belt examiner's report book
stated the conveyor entry needed rock dusted from the airlock
to the tailpiece, a distance of approximately 600 feet and
this violation had been repeatedly reported since 01-10-80,
and no corrections were shown. The mine foreman and superintendent were countersigning the reports •
. 12. Inspector Bowman believed that the operator knew or should have
known of the cited conditions and of the danger of accumulations of combustible material. Sources of ignition in the Itmann No. 3 Mine included belt
idlers 9 high-voltage cables, belt-control cables, high-voltage transformers,
open-type belt-control boxes, and a high spot at the tail of the Cabin Creek
crossbelt that presented a methane problem.
13. It was the inspector's opinion that the accumulations occurred over
at least 3 days with maximum production from all sections feeding that belt.
14. Frank Beard, vice president of Itmann Coal Company, was at the Noo 3
Mine when Mr" Bailey told him that an order had been issued underground. He
told Mro Bailey not to let anyone perform any cleaning until he (Mr. Bailey)
had a chance to inspect the cited area. Mr. Beard traveled the belt from the
head to the tailpiece, observing the ribs, roof, floor and underneath the
belt. When he reached the tailpiece, he turned around and walked back to the
belt head, observing those areas again. In his opinion, the belt looked
proper with the exception of an area at the airlocks and some gray areas at
the tailpiece.

15. When Mr. Beard returned to the surface, he told his supervisor,
Mr. Warren Sharpenberg, that the area was in g~od shape and the order should
not have been issued. They decided to take their own representative band
samples at 100-foot intervals from the belt head to the tailpiece. They
believed these samples would be more accurate and more representative than
the few taken by the inspector. Normally, Applicant took rock-dust samples
every 200 feet.
16. On January 21, Mike Canada, a safety inspector for Itmann Coal
Company, took 17 band samples along the Cabin Creek 5 panel crossbelt. He
began taking samples about 21 feet inby the crossbelt drive and the last
sample was taken 30 feet outby the tailpiece. The belt was not running, so
that he could take samples on both sides of the belt.
17. There were no MSHA personnel or other company personnel present
while he took the samples. He was aware of the areas examined by Inspector
Bowman and he attempted to get samples from those areas. None of his samples
cut directly over the inspector's samp;I.es; however, some were fairly cl'ose.
One sample taken at an airlock was within 1 foot of the inspector's sample.
18. He followed MSHA's procedure for band sampling, making a trough
across the floor that was about 1 inch deep and 6 inches wide.
19. The areas sampled by Mr. Canada appeared dry and well rock dusted,
with the following exceptions: Generally, on the offside of the belt, which
is not normally walked, it was dark gray at spot locations (a grayish color
indicates that float coal dust is beginning to deposit on rock-dusted
surfaces); the No. 6 sample appeared slightly damp and Mr. Canada observed
a 12-foot spillage on the left side of the belt; the No. 9 sample appeared
damp and black_ and he observed a film of float coal dust on the surface; the
No. 10 sample appeared damp and float coal dust was measured at a one-halfinch to a one-fourth-inch over heavily rock-dusted surfaces; the Nos. 11
through 17 samples appeared dry with visible float coal dust. However, the
laboratory analyses showed that all of Mr. Canada's samples exceeded 65 per
centum in incombustible content~ which is the minimum set by the safety
standardo
20. Government Exhibit No. 3 is a record of the laboratory results of
the samples taken previously by Inspector Bowman on January 21, and shows
the following:
Percent
Incombustible
Content

Sample Noo

Area

1

100 feet outby
tailpiece from
crib

skim

l ')') A
Iv f,.._., (,

58.3

21.

2

40 feet inby
airlock from
cinder.blocks

skim

50.0

3

10 feet inby
airlock

half-floor

39.0

4

70 feet inby
belt drive,
offside

half-floor

19.0

The MSHA Underground Manual provides in relevant part:

Collection of dust samples to determine the incombustible
content. The usual samples of mixed dust should be collected
by the band or perimeter method of the entry or room, including
a 1-inch depth of the material on the floor. Dust from the
roof, ribs and floor should be combined into one "band" sample.
If the amount collected is more than required, the sample
should be mixed thoroughly, coned and quartered to cut the
bulk to the desired amount. Occasionally, it may be necessary
to take more than one strip, but in such case, the total width
of the strip must be the same for the roof, each rib and floor.
The plastic bag shall be filled for at leat half the length of
of the bag. Separate samples of dust from either the roof,
ribs or floor may be collected when deemed necessary. Where
the coalbeds are so thick that it is impractical and unsafe to
collect full perimeter samples, the inspector shall collect a
floor sample and a sample from the ribs to the maximum height
at which this can be done safely and practicably. The rib
sample and the floor sample may be either combined or prepared
separately. Wben rib samples are collected and reported
separately, the incombustible content of the rib sample may be
assumed to represent the incombustible content of the entire
rib and roof surface at the sampling location.
DISCUSSION WITH FURTHER FINDINGS
Based on the order of withdrawal issued on January 21, 1980, the
Secretary has charged Applicant with a violation of 30 C.F.R. § 75.403,
which provides:
Where rock dust is required to be appiled, it shall be
distributed upon the top, floor, and sides of all underground
areas of a coal mine and maintained in such quantities that
the incombustible content of the combined coal dust, rock
dust, and other dust shall be not less than 65 per centum,
but the incombustible content in the return aircourses shall
be no less than 80 per centum. Where methane is present in
any ventilating ·current, the per centum of incombustible

content of such combined dusts shall be increased 1.0 and
0.4 per centmn for each 0.1 per centmn of methane where
65 and 80 per centum, respectively, of incombustibles are
required.
Applicant contends that the incombustible content of the Secretary's
samples is inaccurate because the inspector did not follow the proper procedures for taking dust samples. Applicant argues that the two skim samples
and the two half-floor samples represented less than· 1 cubic foot in an
entry of about 104,000 cubic feet and that Inspector Bowman's sampling
techniques were arbitrary and capricious and not in accordance with the MSHA
Underground Manual for inspectors. Applicant contends that its 17 band
samples followed proper procedures and should be accepted over the
government's samples.
The Secretary contends that Inspector Bowman's sampling techniques,
although not stated expressly in the MSHA Underground Manual, "are used by
the inspectors and are recognized in scientific literature." The Secretary
argues that a charge of a violation of the cited standard depends initially
on the inspector's visual observation, that the inspector observed many
accumulations along the 1,300-foot belt, and that his observations and conclusions were later supported by laboratory analysis.
The usual method of collecting dust samples to measure incombustible
content is the perimeter (or band-sample) method. The MSHA Underground
Manual, which was published on March 9, 1978, considers the band sample the
most accurate method of measuring incombustible content. However, the procedures outlined in the Manual are flexible and the half-floor and skim
sample methods, although not contained in the manual, are recognized and
approved procedures used by federal mine inspectors and are part of\the
inspectors' training course. In this case, there were reasonable grounds
for the inspector's procedures: (1) a running conveyor and obstructions
warranted the half-floor samples and (2) accmnulations on the cribs and
cinder blocks warranted the skim samples, since cribs and cinder blocks are
not the floor~ ribs or roof.
I find that the samples taken by Inspector Bowman are reliable, in
accordance with accepted sampling procedures, and establish a violation of
the rock-dusting standard. The accumulations observed by him, and confirmed
by laboratory analysis, were visually evident and, by the exercise of reasonable care~ should have been detected and corrected by the operator before
the inspection. A finding of an unwarrantable failure to comply is therefore
supported by the evidence. Also, the evidence of ignition sources and potential methane liberation in the areas of accumulation justify a finding that
the violation could significantly and substantially contribute to the cause
and effect of a mine safety hazard.

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

122~

2. The Secretary proved by a preponderance of the evidence that dust
samples taken in the Cabin Creek 5 crossbelt conveyor entry in Applicant's
No. 3 Mine were in excess of 65 per centum and that Applicant therefore violated 30 C.F.R. § 75.403, as charged in Order of Withdrawal No. 657867.
Several entries in the company's report books showed the need for cleaning
and rock-dusting and, as of the January 21 inspection the books did not show
that the cited areas had been rock-dusted.
3. The Secretary proved by a preponderance of the evidence that the
violation was the result of an unwarrantable failure by the operator to
comply with the rock-dusting standard.
4. The Secretary proved by a preponderance of the evidence that the
violation was of such a nature as could significantly and substantially
contribute to the cause and effect of a mine safety hazard.
All proposed findings and conclusions inconsistent with the above are
hereby rejected.
ORDER
WHEREFORE IT IS ORDERED that the order of withdrawal issued on January 21,
1980, is AFFilUfED and the contest of order for review thereof is DISMISSED.

Gd~~
WILLIAM FAUVER, JUDGE

Distribution:
Karl T. Skrypak, Esq., Counsel for Itmann Coal Company, Consol Plaza,
Pittsburgh, PA 15241 (Certified Mail)
Michael Bolden, Esq., Trial Attorney, Office of the Solicitor,
UaSo Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)

122?

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

6

UNITED STATES STEEL CORPORATION,
Contestant
v.

MAY 1981
Notices of Contest
Docket No. WEVA 81-263-R
Citation No. 898068
February 2, 1981

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Gary No. 9 Mine
Docket No. WEVA 81-290-R
Citation No. 918432
March 2, 19 81
No. 20B Mine

DECISION
Appearances:

Louise Q. Symons, Esq., United States Steel Corporation,
Pittsburgh, Pennsylvania, for Contestant;
Robert Cohen, Esq., Qffice of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for Respondent.

Before:

Judge Stewart

The above-captioned contest proceedings were brought pursuant to section 105(d) of the Act 1/ by United States Steel Corporation (hereinafter,

J:./

Section 105(d) of the Act 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 assessment 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

U.S. Steel). An expedited hearing was held in Falls Church, Virginia, on
March 19, 1981. The parties were in agreement as to the facts herein and
limited their presentations to stipulations of fact J:./ and oral argument.
Citation No. 898068 was issued on-February 2, 1981, pursuant to
section 104(a) of the Act, 2,/ citing a violation of 30 C.F.R.
footnote 1 (continued)
Secretary shall immediately advise the Commission 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, ot 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 for h~aring appeals of orders issued under section
104."
2/ Before presenting oral arguments, the parties entered into the following
stipulations on the record:
"We agree that the judge has jurisdiction over this case. We agree that
United States Steel Corporation is categorized as a large operator under the
Mine Safety and Health Administration Act. We agree that a citation was
issued to the Gary No. 9 Mine on February 2, 1981 concerning a violation of
75.303, and we agree that that Citation No. 898068 was vacated by tQe Mine
Safety and Health Administration on March 2, 1981.
"Another citation was issued to Gary No. 20 B Mine on March 2, 1981, and
while the Mine has not received a copy of the notice of, vacating that citation, counsel has been given a copy of a notice vacating Citation No. 918432,
dated March 9, 1981, today.
niAt both mines during this period and continuing to the present, an
examination of the belts was made during each shift by certified people as
required by 30 C.F.R. § 75.303. 11
3/ Section 104(a) of the Act provides:
"If, upon inspection or investigation, the Secretary or his authorized
representative believes that an operator of a coal or other mine subject to
this Act has violated this Act, or any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant to this Act, he shall, with
reasonable promptness, issue a citation to the operator. Each citation shall
be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule,
regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The
requirement for the issuance of a citation with reasonable promptness shall
not be a jurisdictional prerequisite to the enforcement of any provision of
this Act. 11

§ 75.303. !:±./
follows:

The condition or practice which caused it to be issued was as

4/ 30 C.F.R. § 75.303, a mandatory standard reproducing section 303(d) of
the Act, reads as follows:
"(a) Within 3 hours immediately preceding the beginning of any shift,
and before any miner in such shift enters the active workings of a coal mine,
certified persons designated by the operator of the mine shall examine such
workings and any other underground area of the mine designated by the
Secretary or his authorized representative. Each such examiner shall examine
every working section in such workings and shall make tests in each such working section for accumulations of methane with means approved by the Secretary
for detecting methane, and shall make tests for oxygen deficiency with a permissible flame safety lamp or other means approved by the Secretary; examine
seals and doors to determine whether they are functioning properly; examine
and test the roof, face, and rib conditions in such working section; examine
active roadways, travelways, and belt conveyors on which men are carried,
approaches to abandoned areas, and accessible falls in such section for
hazards; test by means of an anemometer or other device approved by the
Secretary to determine whether the air in each split is traveling in its
proper course and in normal volume and velocity; and examine for such other
hazards and violations of the mandatory health or safety standards, as an
authorized representative of the Secretary may from time to time require.
Belt conveyors on which coal is carried shall be examined after each coalproducing shift has-begun. Such mine examiner shall place his initials and
the date and time at all places he examines. If such mine examiner finds a
condition which constitutes a violation of a mandatory health or safety standard or any condition which is hazardous to persons who may enter or' be in
such area, he shall indicate such hazardous place by posting a "danger" sign
conspicuously at all points which persons entering such hazardous place would
be required to pass, and shall notify the operator of the mine. No person,
other than an authorized representative of the Secretary or a State mine
inspector or persons authorized by the operator to enter such place for the
purpose of eliminating the hazardous condition therein, shall enter such place
while such sign is so posted. Upon completing his examination, such mine
examiner shall report the results of his examination to a person designated
by the operator to receive such reports at a designated station on the surface
of the mine, before other persons enter the underground areas of such mine to
work in such shift. Each such mine examiner shall also record the results of
his examination with ink or indelible pencil in a book approved by the Secretary kept for such purpose in an area on the surface of the mine chosen by
the operator to minimize the danger of destruction by fire or other hazard,
and the record shall be open for inspection by interested persons.
"(b) No person (other than certified persons designated under this
§ 75.303) shall enter any underground area, except during any shift, unless
an examination of such area as prescribed in this § 75.303 has been made
within 8 hours immediately preceding his entrance into such area." (Emphasis
added.)

.., •) 'J(l
..:... ' , tJ

An examination of 9 Right (I.D. 039) section belt con-

veyor on which coal was being carried was not made, without
delay, after the coal-producing shift had begun. The belt
conveyor was started at 10:05 a.m. and the section foreman
said that he planned to start the examination sometime after
1:00 p.m.
Citation No. 898068 was vacated on March 4, 1981. The justification
given for this action was as follows: "Citation No. 898068 is hereby vacated
due to advice from the Solicitor's Office that the citation was technically
issued in erro'r."
Citation No. 918432 was issued on March 2, 1981, pursuant to section
104(a) of the Act, also citing a violation of 30 C.F.R. § 75.303. The condition or practice cited therein was as follows:
According to the records, February 6, 1981 was the last
date of record that examinations were conducted without delay,
after each coal producing shift had begun, of belt conveyors
that coal is carried upon and the mine contains 4 (four) productive sections. Coal is produced on all 3 shifts at this
mine.
Citation No. 918432 was vacated on March 9, 1981. The justification was
given as follows: "According to instructions received from the Solicitor's
Office and the Administrative Law Judge, this citation as refers to 30 C.F.R
§.75.303 is hereby vacated."~./
The particular provision of section 75.303 directly at issue herein is
the third sentence of the standard, reading: "Belt conveyors on which coal
is carried shall be examined after each coal-producing shift has begun." It
was the position of U.S. Steel that section 75.303 does not specify the
particular time at which such inspection was to be carried out and that an
examination at anytime during a shift would be sufficient for compliance. In
a motion to dismiss, filed on March 17, 1981, MSHA agreed with the position
of U.S. Steel as to the proper interpretation of the cited standard. !!_/
'}_/ In Secretary of Labor v. Consolidation Coal Company, 2 FMSHRC 1809 (1980),
the judge held that 30 C.F.R. § 75.303 did not require an examination of belt
conveyors on which coal is carried immediately upon the start of a production
shift.
6/ MSHA asserted the following in its motion:
"When the issuance of the citation came to the attention of National
MSHA officials, they consulted with appropriate field offices and MSHA district managers 'and supervisory personnel in the affected areas were informed
that MSHA's current policy does not require that onshift examinations begin
immediately after the start of a shift, but only requires that such examinations be completed during each shift.

123:J

In its oral presentation, MSHA reiterated that it agreed with the position of U.S. Steel as previously expressed in MSHA's motion to dismiss.
Counsel for MSHA stated:
In the motion, * * * we admitted that the violations
were issued at the various mines, and we admitted that the
violations were issued in error because they were issued
because it appeared to the Federal mine inspectors when they
came into the mine and looked at the examination books that
the onshift examinations had not been made immediately after
the start of the shift and, therefore, they issued citations
because they believed in good faith that the MSHA policy was
that the onshif t examinations were required to be made immediately upon the start of the shift. * * *
There is one decision on this matter. It was issued by
Judge Merlin in Secretary of Labor v. Consolidation Coal
Company, PENN 79-105. It was issued July, 1980, and stated
that this standard only requires belt conveyors on which coal
is being carried to be examined after each coal-producing
shift has begun. There is no requirement that the examination take place immediately.
The actual words of the Judge in Consolidation Coal Company, 2 FMSHRC
1809 (1980) (hereinafter, Consolidation Coal Company), were:
I conclude that the mandatory standard requires only
that belt conveyors on which coal is carried be examined
after each coal-producing shift has begun. There is no
requirement of immediate examination of belt conveyors after
the start of a production shift. Indeed there is no time
requirement at all except that the examination occur during
the shift.
At oral argument~ MSHA stated that it was presently following this policy, had
informed its personnel that it was the policy that they should follow, and
that it was a fair interpretation.
The MSHA Inspection Manual states that the examination of belts on which
men are not transported shall be started without delay after each coalproducing shift which has begun. With regard to assertions that its MSHA's
footnote 6 (continued)
"Instructions in the Coal Mine Inspection Manual, which indicate a
different enforcement policy with regard to 30 C.F.R. § 75.303, are not
current. In fact, MSHA's enforcement policy with regard to 30 C.F.R.
§ 75.303 is currently under review and once completed, new enforcement
guidelines will be published and enforced. In the interim, because of these
recent instructions now given to MSHA personnel in the affected areas, it is
unlikely that recurring citations of this nature will be issued to mine
operators."

1232

enforcement policy is currently under review and that new enforcement guidelines will be published, counsel stated:
We did not imply or did not mean to imply that we are
going to change our policy and not follow Judge Merlin's
decision. We just feel that our entire enforcement policy
on this matter, including preshift examinations which were
not the subject of this case, is under review.

We are not trying to change this decision or what the
law is by new policy. It is a matter of interpretation and
we feel that we have no disagreement with Judge Merlin's
interpretation.
MSHA presented the following as background to the matter:
I think there is no question that we feel that the operator here did conduct an adequate preshift examination of the
coal-carrying belts which was performed 3 hours before the
beginning of the shift. A West Virginia law requires preshift
examinations of coal-carrying belts 3 hours before the start
of the shift and the operator is complying with that. So, in
view of that, we now feel that the operator is meeting the
requirements of 30 C.F.R. § 75.303 if he examines the belts
at some time during the shift and if that examination is
completed.
MSHA acknowledged that if the conveyor were preshifted within 3 hours
of the start of the shift, the requirement to examine the belt immediately
after the start of the shift would in effect require two examinations within
3 hours and that such a requirement might be harsh. MSHA stated that because
of the 40 miles of belts, there would be people walking belts all day long
because as soon as they finished their preshift examination they would have
to start their onshift examination. MSHA conceded that the language on its
face does not require the operator to begin his onshift examination immediately upon the start of the shift and that it was his option to conduct the
onshift examination along with the State-required preshift examination.
The citations have been vacated, but, when an operator contests a citation, the Secretary cannot deprive the Commission of jurisdiction by vacating
such citation. Climax Molybdenum Company v. Secretary of Labor, and Oil,
Chemical and Atomic Union, Local 2-244 1 MSHC 2538 (1980) (hereinafter,
Climax). In Climax, the Secretary concluded that he could not prove that
violations occurred. He vacated the citations and moved that the operator's
notices of contest be dismissed as moot. The vacation of the citations was
not challenged but the operator sought a declaratory order interpreting the
standard alleged by the citations to have been violated. The Commission, in
denying the operator's request for declaratory relief, stated that the Secretary's motion to dismiss the operator's notices of contest should have been
granted only upon terms and conditions that the judge deemed proper; however,

t'J')')

~4..' ... ·l.)~'

the only appropriate relief which should have been granted by the judge in
that case was to vacate the citations in question with prejudice. To erase
any doubt as to whether the citations had been dismissed with prejudice the
Commission entered an "adjudication on the merits and vacated the citations
with prejudice.n ]_/
The approach taken in Climax will also be taken here. Rather then simply
granting MSRA's motion to dismiss, the citations are vacated with prejudice.
It is found that.Citation Nos. 898068 and 918432 issued to U.S. Steel were
terminated on terms in accordance with the Act. MSRA conceded that section
75.303 does not require that coal-carrying belt conveyors be inspected without
delay after a coal-producing shift ha.s begun and that they may be examined at
any time during the shift. MSRA's enforcement personnel have been instructed
accordingly. The language of section 75.303 and the corresponding statutory
provision do not specify the time at which inspections of belt conveyors on
which coal is carried must be made, other than that such inspection must take
place after the coal-producing shift has begun.

At oral argument, counsel for U.S. Steel moved for leave to amend its
notices of contest to include as relief requested a declaratory order interpreting section 75.303. 8/ Counsel for MSHA resisted the motion for a

"Any citation or order issued under this section shall ~emain in effect
until modified, terminated or vacated by the Secretary or his authorized
representative, or modified, terminated or vacated by the Commission or the
courts pursuant to section 105 or 106."
Commission Rule l(b) states:
"Applicability of other rules. On any procedural question not regulated
by the Act, these Procedural Rules, or the Administrative Procedure Act
(
5 U.S.C. §§554 and 556), the Commission or any judge shall
guided so far as practicable by any pertinent provisions of the Federal Rules
of Civil Procedure as appropriate.
"Fed.R.Civ.P. 4l(a)(2) states in part:
"(a) Voluntary dismissal: Effect Thereof.
11

*

*

*

(2) By Order of Court. Except as provided in paragraph (1) of this
subdivision of this rule, an action shall not be dismissed at the plaintiff's
instance save upon order of the court and upon such terms and conditions as
the court deems proper. * * * Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." (Emphasis added.)
8/ Section 105(d) states in part:
''If * * * an operator of a * * * mine notifies the Secretary that he
intends to contest the issuance of [a] * * * citation * * * the Secretary shall
immediately advise the Commission of such notification, and the Commission
shall afford an opportunity for a hearing (in accordance with [5 u.s.c. §554]
* * *), and thereafter shall issue an order, based on findings of facts,
affirming, modifying, or vacating the Secretary's citation * * * or directing
relief * * *·" (Emphasis added.)

declaratory order and objected to the timeliness of the motion. MSHA argued
that it had conceded that section 75.303 did not require an inspection of
belt conveyors on which coal is carried without delay after the beginning of
the shift, that the citations had been vacated, and that steps had been taken
to insure that inspectors would no longer issue such citations pending revision of the Inspection Manual. While MSHA stated that there might be changes
in the inspections regarding preshif t examinations when review of the
Inspection Manual was completed, it acknowledged that the decision in
Consolidation Coal Company was correct and would be followed.
With the parties in accord on the provisions of the standard with
respect to the time that inspections of belt conveyors carrying coal must be
made, the remaining issue in this case involves to some extent the outdated
provisions of the Inspection Manual which are now under review. The standard
in issue is only one part of the statutory inspection scheme set forth in
section 75.303 of the Act under the general heading "Ventilation." That section also requires certain inspections within 3 hours immediately preceding
the beginning of any shift, at the start of each shift, at least once during
each coal-producing shift, and at least once each week. Certain persons are
prohibited from entering until the results of some of these examinations are
reported to the surface. The section also prohibits the entry of persons
under certain conditions unless some of the examinations have been made
within 8 hours. These requirements should be considered in conjunction with
any interpretation under which an inspection could be started at the beginning
of one shift and the next inspection need not be completed until the end of
the succeeding shift. Due to the possible impact of some of these provisions
on others also contained in section 75.303, MSHA properly argues that a review
is necessary before changes are made in inspection procedures. The\standard
prescribes the time for inspections of belt conveyors on which coal is carried
in the general terms "after each coal-producing shift has begun." MSHA no
longer considers this to mean "without delay" after each coal-producing shift
has begun and it has taken appropriate steps to insure that Contestant is not
again wrongfully cited for failure to make such inspections without delay.
With the ruling by the Administrative Law Judge in Consolidation Coal Company
and the concessions by MSHA in its motion and on oral argument, it would not
be prudent to prescribe with more exactitude by declaratory order the time
at which inspections of coal-carrying belt conveyors should be made. The
record does not establish the harm, if any, to Contestant caused by the issuance of the citations and it is unlikely that Contestant will suffer harm
from the same misinterpretation of the standard in the future. Moreover, no
reason has been advanced which would warrant risking disturbances of the
statutory scheme of inspections by additional interpretation. The record in
these cases does not contain all of the relevant evidence to afford full consideration of the effects of any different interpretations. It is preferable
that further interpretation of the standard involved herein be made on a caseby-case basis and that any changes in inspection procedures by MSHA within the
bounds of the standard should be made only after careful review. Of course,
changes beyond the bounds of the standard should be made only by amendments
to the standard.

U.S. Steel asserts that it needs the decision of another administrative
law judge interpreting section 75.303 so that it has another piece of paper
to hand to enforcement personnel to show them that the law does not require
that the examination be started immediately after the shift has begun. After
holding in Consolidation Coal Company that the mandatory standard requires
only that belt conveyors on which coal is carried be examined after each
coal-producing shift has begun, the judge stated that there is no requirement
of immediate examinations of belt conveyors after the start of a production
shift and indeed there is no time requirement at all except that the examinations occur during the shift. There is little more that a judge could do to
interpret the standard more broadly in favor of the position of the operator
even if that were to be his decision after consideration of a full record.
The interpretation in Consolidation Coal Company has already been adopted by
MSHA. A repetition of this interpretation in a declaratory order without
the benefit of a full record, as now urged by U.S. Steel, would not only be
inappropriate, but would have no significant effect on inspection procedures.
As in Climax, where a request for a declaratory order was denied, a ruling by
the judge "would [be] nothing more than an advisory opinion based upon a hypothetical state of facts." Furthermore, there are insufficient facts, either
stipulated or hypothetical, in the instant cases of the precision and scope
necessary to provide a proper basis for a meaningful interpretation.
U.S. Steel also urges that another administrative law judge's ruling
in a declaratory order would give the Mine Safety and Health Administration
another chance to decide if they want to seek discretionary review by the
Commission. MSHA has conceded that the decision in Consolidation Coal
Company was a fair interpretation of the standard and did not seek qiscretionary review so even if the interpretation in a declaratory order were to
be as broad as in that decision, it is not likely that discretionary review
would be sought by MSHA. At oral argument, MSHA stated that if it had wanted
another decision, it certainly would not have vacated the citations, but would
have put on testimony as to why the examination should have been conducted
immediately after the start of the shift and would have made a full record
by calling witnesses interested in the provision and how it is interpreted.
MSHA asserted that it had not chosen to do so and had no intention of doing
soo MSHA has stated that it is in agreement with U.S. Steel as to the
requirements of section 75.303 and that it is unlikely that discretionary
review by the Commission would be sought for vacation of the citations in
this decision.
MSHA and U.S. Steel are in agreement on the current policy which has
been disseminated to the inspectors and the Inspection Manual is under
review. It is unlikely that similar citations will be issued. The issuance of a declaratory order is not necessary to afford u.s. Steel relief in
this matter and would not be prudent at this time. Accordingly, Contestant's
motion for leave to amend is DENIED.

123~

ORDER
Citation Nos. 898068 and 918432 are VACATED WITH PREJUDICE.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Louise Q. Symons, Esq., United States Steel Corporation, 600 Grant
Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail)
Robert Cohen, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Harrison B. Combs, Esq., United Mine Workers of America, 900 15th
Street, NW., Washington, DC 20005 (Certified Mail)

1237

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

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

'I

MAY 1981

Civil Penalty Proceeding
Petitioner

Docket No. LAKE 80-299-M
A.C. No. 12-00084-05005

v.
MULZER CRUSHED STONE COMPANY,
a Partnership,
Respondent
DECISION
Appearances:

Steven E. Walanka, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois for Petitioner;
Philip E. Balcomb, Mulzer Crushed Stone Company, Tell City,
Indiaµa, for Respondent.

Before:

Administrative Law Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter MSHA) under section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter,the Act),
to assess a civil penalty against Mulzer Crushed Stone Company (hereinafter
Mulzer) for a violation of a mandatory standard. The proposal for assessment of a civil penalty alleges a violation of 30 C.F.R. § 56.12-25 in that
the surge tunnel feeder did not have a frame ground.
The parties filed preliminary statements and a hearing was held in
Evansville, Indiana on February 24, 1981. Inspector George LaLtimondiere
testified on behalf of MSHA. Nelson R. Paris testified on behalf of Mulzer.
Both parties submitted posthearing brief so
ISSUES
Whether Mulzer violated the Act or regulations as charged by MSHA and,
if so, the amount of the civil penalty which should be assessed.
APPLICABLE LAW
30 C.F.R. § 56.12-25 provides as follows: Mandatory. All metal
enclosing or encasing electrical circuits shall be grounded or provided with
equivale~t protection.
This requirement does not apply to battery-operated
equipment.

Section llO(i) of the Act, 30 u;s.c. § 820(i), provides in pertinent
part as follows:
In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations,
the appropriateness of such penalties, the size of. the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated
good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
STIPULATIONS
The parties stipulated the following:
1. That the Administrative Law Judge had jurisdiction in matters
related to the Mine Safety and Health Act of 1977.
2. That the inspector who issued the citation was a duly authorized
representative of the Secretary of Labor.
3. That the size of the mine as to production of tons or man-hours
per year is 179,118.
4. That the size of the company as to production tons or man-hours
per year is 469,971.
~

5. That the proposed assessment will not harm Respondent's ability to
continue its operations.
6.

That Citation No. 366846 has been terminated.

7o That Respondent owned and operated a surge tunnel feeder motor on
March 12~ 19800

80 That Respondent operates a limestone (crushed and broken) type
facility.
9o That Respondent is doing business under the Act and that it is under
the commerce provision of the Act.

SUMMARY OF THE EVIDENCE
MSHA contends that the flexible conduit which connected the feeder motor
and the solid conduit was the only source of grounding for the motor, and
since this flexible conduit was broken off, Mulzer ·violated 30 C.F.R.
§ 56.12-25 in not providing a ground or equivalent protection. MSHA Inspector, George LaLumondiere, testified that during the course of his regular
inspection conducted at Cape Sandy Quarry on March 11, 12, 13, 1980, he

1239

examined the surge tunnel motor for a source of a ground. The only one he
observed was the flexible conduit. Although he made no tests for continuity,
he assumed that the motor was not grounded since the flexible conduit was
loose and not connected to the solid conduit on the belt frame.
Mulzer contends that the flexible conduit was only one of three possible
sources of grounding. Mulzer's chief electrician, Nelspn Paris, testified
that the other sources are the power company's system and the six ground rods
located behind the switch house. Mulzer maintains that the conduits provide
a ground by covering the wires which transport power to the motor from a
starter switch and fuse disconnect mounted on the tunnel wall. The starter
box is grounded, thus making the conduit part of another grounding path.
Paris explained, however, that the primary purpose of the flexible conduit
is to protect the wires from flying material and vibration, and not to provide
a ground.
MSHA maintains that the motor frame could not provide a solid ground
because the bolts, frame and equipment were rusted. The inspector testified
that the frame was bolted to the conveyor belt frame and that the bolts were
rusty. Although he did not remove the bolts to examine whether they were
rusty inside, he assumed from his prior experience that they were. While
concluding that there could be no good ground because of the rusty conditions, he admitted that it is possible to have a solid ground if only the
surface of the bolts were rusted. The inspector stated that he made no tests
of the equipment because he had rio instruments, and would have had to call
another inspector to check the grounding efficiency.
Mulzer contends that a primary ground, satisfying the safety standard,
is provided by the firm attachment of the motor frame to the grounded conveyor structure. Although Mr. Paris had never seen four loose boltJ, he
testified that the mere weight of the motor would be capable of carrying a
ground even in the absence of the bolts. Six to eight weeks prior to the
inspection:the system's grounding capabilities were checked. At that time,
the ohm meter read zero ohms, and the system was determined to have good
continuity" From this reading Mulzer assumed that the bolts were not rusted
on the insideo Mro Paris stated that, after the citation was issued, the
company did not make any electrical tests to determine whether there was
adequate grounding. They felt there was no need since the motor was still
secure to the frame.
Mulzer argues that the fact that the feeder motor was running at the
of inspection, is evidence that the motor was securely attached to the
frame, providing a good grounding path. It claims that in order to maintain
the necessary tension on the V-belts sufficient to transmit power from the
motor to the feeder, the bolts must be tightened firmly. Therefore, although
the bolts were rusted on the exterior, they still provided sufficient pressure
to establish intimate contact between the motor and the grounded frame.
~ime

At the hearing, the inspector admitted that he was not an electrician.
He stated that he has had specific electrical training and previously had

handled electrical problems involving refrigeration and air conditioning.
Mr. Paris testified that he has been an electrician for 37 years. He was
involved in the installation of the electrical system at the quarry, supervising its open delta system.
DISCUSSION
Having considered all the testimony, evidence, and written arguments
submitted in this case, I find that MSHA has failed to prove the fact of
violation. MSHA alleged a violation of 30 C.F.R. § 56.12-25, yet it has
not shown that the surge tunnel motor was not, in fact, grounded.
MSHA maintains that the flexible conduit was the only source of grounding for the motor. It cited Mulzer for a violation of 30 C.F.R. § 56.12-25
since the flexible conduit was broken off and could not provide a grounding
path. As evidenced by the testimony of the inspector, MSHA's conclusion
was based only upon the inspector's visual observations of the motor. He
made no tests for continuity and relied only upon his experience in finding
a violation.
MSHA also contends that the frame was not a source of grounding
because the bolts, frame and equipment were rusted. It was unable, however,
to show that the bolts were rusted on the inside. Since the inspector
testified that he did not remove the-bolts to examine their condition, MSHA
has not demonstrated the ineffectiveness of the bolts in securing the motor
to the frame. Again, the inspector made no tests of the frame's grounding
efficiency.
Mulzer's conclusion that the detached flexible conduit was not sufficient to sustain a violation of 56. 12-25 is supported by the evidence of
alternative grounding sources. Mr. Paris' testimony indicates that the frame
of the motor provided an effective ground. Mr. Paris testified that the mere
weight of the motor, even in the absence of bolts, kept the motor secure to
the frame for an adequate ground. This evidence demonstrates the inconsequentiality of a rusted exterior on the equipment's ability to provide a
groundo
In their briefs, the parties raise the issue of a violation of 30 C.F.R
Since MSHA has not cited Mulzer with
a violation of this safety standard, it is not a relevant consideration in
this proceedingo
§ 56.18-2 regarding shift inspections.

Having found that MSHA has not established the fact of violation, it
is not necessary to examine the remaining criteria of section llO(i) of the
Act. Therefore, the citation alleging a violation of 30 C.F.R. § 56.12-25
must be vacated and this proceeding dismissed.

124J

ORDER
WHEREFORE, IT IS ORDERED that Citation No. 366846 alleging a violation
of 30 C.F.R. § 56.12-25 is vacated and this civil penalty proceeding is
DISMISSED.

~O.

A. Laurenson, Judge
Issued:
Distribution Certified Mail:
Steven E. Walanka, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., Eighth Floor, Chicago, IL 60604
Philip E. Balcomb, Mulzer Crushed Stone Company, P.O. Box 248,
Tell City, IN 47586

1242

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE. LAW JUDGES

2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

'I

MAY 1981

Complaint of Discharge,
Discrimination, or Interference

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Ex rel. THOMAS C. WHITE,
Complainant

Docket Nos. WEVA 81-71-D
HOPE CD 80-71
No. 15-A Mine

v.
VALLEY CAMP COAL COMPANY,
Respondent
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for Complainant;
Robert S. Stubbs, Esq., Jackson, Kelly, Holt & O'Farrell,
Charleston, West Virginia, for Respondent.

Before:

Judge Meli ck

This case is before me upon the complaint by the Secretary of Labor on
behalf of Thomas C. White pursuant to section 105(c)(2) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et~·, the "Act," alleging
that Mr. White was unlawfully discharged by the Valley Camp Coal Company
(Valley Camp). An evidentiary hearing was held on February 10, 1981, in •
Charleston~ West Virginia.
The specific issue in this case is whether Mr. White was unlawfully discharged by Valley Camp under section lOS(c)(l) of the Act because of his
safety-related activities at Valley Camp's No. 15-A Mine. Section 105(c)(l)
reads in part as follows:
No person shall discharge or in any other manner discriminate against * * * or otherwise interfere with the exercise
of the statutory rights of any miner, [or] representative of
miners * * * because such miner [or] representative of miners
* * * has filed or made a complaint under or related to this
Act, including a complaint notifying the operator or the

operator's agent* * * of an alleged danger or safety or
health violation in a coal or other mine * * * or because
of the exercise by such miner [or] representative of miners
* * * on behalf ~f himself or others of any statutory right
afforded by this Act-.
If the Complainant proves by a preponderance of the evidence that he
was engaged in a protected activity and that his discharge by the operator
was motivated in any part by the protected activity then he has established
a prima facie case under this section of the Act. Secretary ex rel. Pasula
v. Consolidation Coal Company, 2 FMSHRC 2786 (October 1980) •. For the reasons set forth below, I find that Mr. White has indeed established such a
case here.
Before his discharge on June 19, 1980, Whit.e was employed at the Valley
Camp No. 15-A Hine as a beltman and was chairman of the union mine committee
and the union health and safety committee. White was subsequently reinstated
to his job with back pay as the result of an arbitration decision rendered
August 18, 1980. White here seeks only a finding that he was unlawfully discharged for engaging in activities protected by section 105(c)(l) of the Act,
and an order that his employment records be expunged of any reference to that
discharge. })
It is undisputed that White had, over an extended period of time, engaged
in various activities which are clearly protected under section 105(c)(l).
More particularly, Valley Camp concedes that White had "actively and vigorously
enforced health and safety rights" and had always been active in reporting
safety violations to the company and to state and Federal authorities. The
last of these protected activities occurred on June 18, 1980. On the morning
of that date, White was directed by Jeff Schoebel, the general mine superintendent, to replace certain roof bolts to correct a deficiency.previously discovered by an MSHA inspector. White later decided that it was unsafe for him
to work at the task without assistance. He telephoned outside the mine, reachassistant superintendent Ray Lyons. He told Lyons of his safety concerns
and requested alternate work. Lyons complied with the request but on the next
gave White a notice of suspension-with-intent-to-discharge.
While conceding that White had engaged in these protected activities,
Camp argues that its discharge of White was not motivated in any part

·17 The Secretary of Labor also petitions in this case on its own behalf for
an order assessing a civil penalty against Valley Camp for violations of section lOS(c) of the Act. The Secretary withdrew this request at hearing
acknowledging that the operator had not been given its rights pursuant to
30 C.F.R. Part 100. Valley Camp agreed however, to permit the introduction
of evidence in the instant case regarding penalty criteria under section
llO(i) of the Act and to waive its right to a subsequent hearing should any
penalty be proposed and to allow the administrative law judge to render a
decision in any subsequent penalty case arising before the Commission based
on the record in this proceeding.

124'1

by these activities but rather was the direct result of its enforcement of a
longstanding absenteeism policy. I conclude, however, that White's discharge
was indeed motivated at least in part by his protected activities. In reaching
this conclusion I have n~cessarily relied upon circumstantial considerations.
One consideration is the close proximity in time between White's last protected
activity and his discharge. He refused to perform work" because of allegedly
unsafe conditions on June 18, 1980, and was discharged early the next day.
Another consideration is the evidence of threats and expressions by mine management of ill-will toward White because of his safety-related activities. It
is uncontradicted that mine superintendent John Necessary had told White in
early 1980 following a dispute over the abatement of an alleged safety violation that he did nothing but cause the company trouble. It is also undisputed
that around April 1980, following another argument over safety conditions in
the mine, Necessary threatened to fire White and to bar him from future
employment in the coal industry. Around the same time, mine foreman James
Lucas threatened physical injury to White after White had demanded safety
chains for a mantrip. While it is true that Ray Lyons, the official who
actually made the final decision to discharge White, was not among those to
whom these remarks have been attributed, there is no doubt that he was subject to the influence of a clearly pervasive management attitude toward
White's safety activities.

The final consideration supporting my conclusion is the assertion by
Valley Camp of what I find to have been a flimsy pretext for its discharge
of White, i.e., an alleged violation of a purported absentee policy. Valley
Camp's own-evidence shows that while this so-called absentee policy had been
in effect for as long as 10 years, until 1980 no one had ever been discharged·
under it. Moreover, it was not a written policy and the unwritten ~olicy,
which ostensibly had been reannounced to all employees at a December 10, 1979,
safety meeting, was subject to widely varying interpretations even among management. 2/ According to Assistant Superintendent Lyons, the policy consisted
of four steps. First, if an employee were absent for 2 days within a 30-day
period without medical excuse he would receive a verbal warning. Second, after
two similar absences (for 2 days without medical excuse) in any subsequent
30 days, the employee would receive a written warning. After a third similar
infraction, the employee would receive a 3- or 5-day suspension. After a
fourth similar infraction, the employee would be discharged.· According to
Mine Foreman Lucas, on the other hand, it was only a three-step process and
infractions other than unexcused absences could also be considered. Finally,
according to statements attributed by Harold Knight, one of Valley Camp's witnesses, to superintendent John Necessary, management never intended in any
event to uniformly enforce the policy that was announced to employees on
December 10. I conclude from this evidence that indeed Valley Camp never had
any single uniformly enforced absentee policy but rather had many policies
loosely interpreted by each official and which could be arbitrarily invoked
at their convenience to mask unlawful motivation for personnel action.

J:.}

A written absentee policy was subsequently issued on September 15, 1980.

Even assuming, arguendo, that the four-step "policy" described by Ray
Lyons was indeed invoked against White as alleged by Valley Camp, I find that
it was an erroneous invocation because Valley Camp considered as the first
step a violation that predated the announcement of the policy. According to
Valley Camp, White received the first warning from Superintendent Necessary
on December 3, 1979, but Valley Camp did not announce tb employees that the
policy was going to be enforced until the December 10, 1979, safety meeting.
The newly announced policy was admittedly to be enforced only prospectively
after that date. Within this framework of evidence I conclude that White had
at most only three infractions under the program. Valley Camp's discharge of
White under a four-step policy was therefore unwarranted. Under all the circumstances I conclude that the alleged invocation of such an absentee policy
was indeed only a thinly disguised pretext for the discharge of White. I am
accordingly persuaded that White's discharge was motivated by his protected
safety-related activities.
It is apparent from the foregoing discussion that Valley Camp's alternative argument must also fail. It claimed. that even assuming part of its
motive for discharging White was unlawful, it was also motivated by White's
unprotected violation of its absentee policy and that it would have discharged
White in any event for his violation of that policy. Pasula, supra at page
2800; Secretary ex rel. Robinette v. United Castle Coal Company, 2 FMSHRC ~~
(April 3, 1981). As the Commission said in Pasula, supra, on these issues
the employer must bear the ultimate burden of persuasion. Th_e employer must
show that it did in fact consider the employee deserving of discipline for
engaging in the unprotected activity alone and that it would have disciplined
him in any event·. Inasmuch as I have concluded that Valley Camp did not during
relevant times have in effect any clear, nondiscriminatory absentee•policy
and that even assuming that it had such a policy and that policy was the
one invoked against White, that it was not properly invoked, it follows that
Valley Camp has not met this burden of persuasion. I therefore conclude that
Mr. White was discharged in violation of the provisions of section 105(c)(l)
of the Act.
ORDER
It is ORDERED that Respondent expunge from its em loyment records any
reference to its discharge of Thomas C. White on June 9, 1980.

121f~

Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Robert S. Stubbs, Esq., Jackson, Kelly, Holt & O'Farrell, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)

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

MAY t 1 t98t
Civil Penalty Proceeding

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

Docket No. YORK 80-123-M
A.O. No. 19-00283-05005
Assonet Mine & Mill

v.
ASSONET SAND & GRAVEL CO.,
Respondent

DECISION
Appearances:

David L. Baskin, Attorney, U.S. Department of Labor,
Boston, Massachusetts, for the petitioner.

Before:

Judge Koutras
Statement of the Case

This proceeding was initiated by the petitioner against the
respondent through the filing of a proposal for assessment of civil
penalties pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 820(a), proposing civil penalties
for five alleged violations of certain mandatory safety standards
promulgated pursuant to the Act. A hearing was held in Providence,
Rhode Island, on April 1, 1981, and while the petitioner appeared
pursuant to notice, respondent did not.

The issues presented in this proceeding are: (1) whether respondent
has violated the provisions of the Act and implementing regulations as
alleged in the petition for assessment of civil penalties, 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 are identified
and disposed of in the course of this decision.
In determining the amount of civil penalty assessments, section
llO(i) of the Act require~ 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 charged,
(3) whether the operator was negligent, (4) the effect on the operator's
ability to continue in business, (5) the gravity of the violations, and
(6) the demonstrated good faith of the operator in attempting to achieve
rapid compliance after notification of the violations.

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 U.S.C. § 801 et~·
2.

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

3.

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

I consider the respondent's failure to enter an appearance at the
hearing to be a waiver of any further rights to be heard in this matter.
In the circumstances, I ruled that respondent was in default, the hearing
proceeded as scheduled,
and petitioner presented testimony and evidence
in support of the citations which were issued in this case as well as
its proposal for assessment of civil penalties.
With regard to the failure by the respondent to enter an appearance
in this case, the record reflects that the notices of hearing in these
proceedings were mailed to the parties 'by registered mail on February 5
and March 20, 1981, and the return postal service registered mail receipts
reflect that both the petitioner and the respondent's counsel received
actual notice of the hearing. Although the starting time of 9:30 a.m.,
was delayed until 10:30 a.m;, at the request of petitioner's counsel,
respondent's counsel was notified of the one-hour delay through telephone
calls made to his office on the afternoon of Tuesday, March 31, 1981, the
day before the scheduled hearing, both by petitioner's counsel as well
as my secretary. Additional calls were made on the morning of April 1,
1981, both by petitioner's counsel as well as my secretary in an effort
to ascertain thewhereabouts of respondent's counsel. His answering
service confirmed that counsel had received the previous messages concerning the one-hour delay in the starting time of the hearing, but
efforts to ascertain his whereabouts were to no avail. Further, petitioner 1 s
counsel stated that prior attempts by him to contact respondent's counsel
for the purpose of discussing the case in preparation for the hearing
and exploring possible stipulations were unsuccessful.
I was present at the hearing room from 9:00 a.m. on April 1, 1981,
until the conclusion of the hearing at approximately 1:00 p.m., and at
no time did respondent's counsel appear. The hearing began at 10:30 a.m.,
and concluded at approximately 1:00 p.m. In view of the foregoing
circumstances, I can only conclude that respondent 1 s counsel never intended
to enter an appearance, and his failure to do so has resulted in respondent's
being held in default, I conclude that respondent has been given more
than an adequate opportunity to be heard, and I conclude that respondent
has waived its right to any further hearing and that the issuance of any
show-cause order would be a fruitless gesture. I have considered this
case de novo and my decision in this regard is made on the basis of the
evidence and testimony of record as presented by the petitioner in support
of its case at the hearing.

124B

The citations issued in this case, exhibits P-1 through P-4, and
P-8, are as follows:
Citation No. 222590, 5/14/80, 30 CFR 56.14-6
A section of a guard that was provided for the tail pulley
on the 3/8" conveyor was removed and not replaced. There
was one man in the area. The pinch points were exposed.
Citation No. 222591, 5/14/80, 30 CFR 56.14-6
A guard that was provided for the tail pulley of the
3/5" stone conveyor was constructed of light weight expanded
metal. A plant employee bent the side of the guard up to a
right angle to the conveyor frame which exposed the tail
pulley pinch point. There was one man in the area.
Citation No. 222592, 5/14/80, 30 CFR 56.14-6
The top section of a guard that was provided for the V-belt
drive on the scalping screen was removed and not replaced.
The pinch points were exposed. There was one man in the
area.
Citation No. 222593, 5/14/80, 30 CFR 56.14-6
A guard that was provided for the fly wheel on the scalping
screen was removed and not replaced. There was one man in
the area.
Citation No. 222537, 5/20/80, 30 CFR 56.11-2
A hand railing that was provided for the elevated walkway
around the tail pulley of the upper swing sand conveyor
was removed and not replaced. One man works in the area.
The height is approximately 20 feet.
Testimony and Evidence Adduced by the Petitioner
MSHA inspector Earl Giovanni confirmed that he conducted an inspection
of respondent's mining operation on May 14, 1980, and was accompanied
by plant foreman Frank Ferriera. The mine in question is a sand and
gravel operation, was in operation at the time of the inspection, and
the mine employs approximately five individuals. The plant was in
production at the time of the inspection, and he confirmed the existence
of the
conditions and practices which he cited in each of the citations
which he issued on May 14, and confirmed that they were violations of
the cited mandatory safety standards (Tr. 17-47); exhibits P-1, P-2, P-3,
and P-4). He also confirmed the conditions cited in a citation which he
issued on May 20, 1980, and testified that the conditions were in violation
of mandatory safety standard section 56.11-2 (~r. 47).

With regard to citation no. 222590, Mr. Giovanni testified that
the guard which had been installed at the tail pulley location which
was cited had been cut away with an acetylene torch to facilitate access
to the tail pulley bearing. The opening was large enough for a person
to place his hand through, and in doing, he would have contacted the
pulley pinch points. He also stated that a plant laborer admitted cutting
out the hole so that he could service or oil and greas~ the bearing
(Tr. 18-19). Although he observed no men in the immediate area during
the inspection, he observed some foot prints on the ground around the
tail pulley location, and the tail pulley was adjacent to a walkway.
He believed that anyone walking by with loose clothing would be in danger
of contacting the exposed pinch point, and he believed the condition was
dangerous (Tr. 21-22).
With regard to citation no. 222591, the inspector testified that
the guard installed for the tail pulley in question was marginal in
that it was constructed of very light mesh wire. The guard had been
bent up at a right angle, thereby completely exposing the entire end
of the tail pulley. He believed that someone had bent the guard in such
a fashion to facilitate greasing and Mr". Ferriera confirmed that this
was true. The pulley was running at the time of the inspection, the
cited condition was obvious, and persons had to walk by the location to
reach a nearby walkway (Tr. 27-28).
Mr. Giovanni testified that citation no. 222592 was issued because
a guard which had been provided for the V-belt drive and scalping screen
had been removed and was lying within six· feet of the screen in the walkway
and had not been replaced. Mr. Ferriera admitted that someone forgot to
put the guard back on the equipment, and the inspector believed it had
been taken off to change a belt and had been off for four days (Tr: 32-33).
Inspector Giovanni testified that citation no. 222593 was issued after
he observed that a guard which had been provided for the flywheel on a
scalping screen had been removed and left lying on an adjacent walkway.
The screen was the same one previously cited in citation no. 222592, but
the flywheel in question was on the opposite side of the screen drive
pulley previously cited (Tr. 37). There was evidence that the guard
weld had broken and that the guard had never been replaced. The condition
was obvious and someone could have been injured if their hand or arm
were caught in the unguarded flywheel (Tr. 39). The scalping screen,
flywheel, and V-belt were all running when he observed the conditions
(Tr. 44).
Citation No~ 222537 was issued after the inspector observed that
the plant operator had removed the hand railing on an elevated walkway
around the tail pulley of a swinging sand conveyor, and the plant
laborer admitted that he did so because it was in his way (Tr. 47-48).
The railing citatation was the second one he issued for the same location,
and the previous one was issued on August 21, 1979, for the very same
condition (Tr. 48). The platform location was some 20 feet off the ground,
and he observed a laborer working on the platform cleaning sand off the
platform at the time of his inspection (Tr. 49).

1251

Findings and Conclusions
Fact of violations
I conclude and find that the testimony and evidence adduced by the
petitioner establishes the fact of violation as to each of the citations
issued in this case. Accordingly, all of the citations are AFFIRMED.
History of prior violations
Inspector Giovanni testified that during prior inspections which
he conducted on August 21, 1979, he issued 19 citations, and that
another inspector issued eight prior citations during an inspection
conducted on May 4, 1978. Included among these are six prior citations
for violations of section 56.14-4 6, and eight prior citations for
violations of section 56.11-2 (Tr. 15-16). Petitioner's counsel stated
that a computer print-out is not available, and· that petitioner has no
way of knowing whether the violations alluded to by Mr. Giovanni are
in fact valid for purposes of establishing a prior history of violations
(Tr. 16). One of the prior section 56.11-2 citations was a repeat of
the very same handrail citation issued by the inspector. Under the
sircurnstances, I accept the inspector's testimony as credible evidence
of respondent's prior history of violations, and have considered this in
assessing the penalties in this case.
Size of business and effect of penalties on respondent's ability to continue
in business.
The inspector testified that the plant employed five individuals,
and he believed it is a medium-sized operation in terms of comparison
with similar plants he had inspected (Tr. 62). I conclude and find that
the plant in question is a small-to-medium sized operation, and absent
any showing to the contrary, I further find that the penalties assessed
for the citations in question will not adversely affect the respondent's
ability to continue in business.
Gravity
The inspector's testimony supports a finding that all of the citations
issued in this proceeding were serious (Tr. 27-28, 33-34, 39, 44, 49).
The equipment which was unguarded was running, the locations were near
or in close proximity to walkways where men obviously passed closely by,
and the inspector observed a man working on the elevated platform where
the handrail had been removed.
Good faith compliance
The inspector's testimony, as well as the abatement notices, reflect
that all of the conditions cited were corrected and abated within the
time prescribed by the inspector either by replacing or repairing the
guards in question, as well. as the missing handrail, and I have considered
this in assessing the penalties for the citations which I have affirmed
(Tr. 26, 28, 36, 39, 50).

1252

Negligence
The testimony presented by the inspector reflects that the guards
which were installed at two locations, citations 222590 and 22259~ were
deliberately cut away and bent back to facilitate maintenance or greasing.
In these circumstances; I conclude and find that these two citations
resulted from the respondent's reckless disregard of the mandatory
safety standards cited, and that the citations amount to gross negligence.
As for the remaining citations, I conclude that the evidence adduced
supports a finding of ordinary negligence in that the respondent failed
to exercise reasonable care to prevent the conditions cited.
Penalty Assessments
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
and find that the following civil penalties are appropriate and reasonable
for each of the citations which I have affirmed:
Citation No.

Date

30 CFR Section

Penalty Assessment

222590
222591
222592
222593
222537

5/14/80
5/14/80
5/14/80
5/14/80
5/30/80

56.14-6
56.14-6
56.14-6
56.14-6
56.11-2

$

Total

$

250
250
195
195
210
1100

Order
The respondent IS ORDERED to pay civil penalties in the amounts
shown above, totaling $1,100 within thirty (30) days of the date of this
decision and order, and upon receipt of payment by the petitioner, this
matter is dismissed.

Administrative Law Judge
Distribution:
Paul B. Morley, Esq., 80 Front St., Scituate, MA 02066 (Certified Mail)
David L. Baskin, Esq., U.S. Department of Labor, Office of the Solicitor,
JFK Federal Bldg., Government Center, Boston, MA 02203 (Certified Mail)
Assonet Sand & Gravel Company, P.O. Box 7, Ridge Hill Road, Assonet, MA
02702 (Certified Mail)

l ') r: '{
J..

.

·J·

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE
DENVER, CO LORA DO 130204

MAY 13 1981

)

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

)
)

Petitioner,
v.
FRANK L. MILES,
Respondent,
BEN LEILER,
Respondent.

CIVIL PENALTY PROCEEDING

)
)
)
)
)
)
)
)
)
)
)

DOCKET NO. WEST 80-332-M
A/O No. 45-02140-05004-A
DOCKET NO. WEST 80-333-M
A/O No. 45-02140-05005-A
Miles Sand & Gravel Company
Upper Dickey Pit
Silverdale, Kitsap County,
Washington

DECISION
APPEARANCES:
Edward R. Fitch, Esq.
Office of the Solicitor
United States Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
for the Petitioner
Mr. Frank L. Miles, pro se
Miles Sand & Gravel Company
P.O. Box 130
Auburn, Washington 98002

Mr. Ben Leiler, pro se
Miles Sand & Gravel Company
P.O. Box 130
Auburn, Washington 98002
for the Respondent
Before: Judge Jon D. Boltz
STATEMENT OF THE CASE
The above two cases, which were consolidated for hearing, involve
alleged violations of section llQ(c) of the Federal Mine Safety and Health
Act of 1977 • 1

1/ Whenever a corporate operator violates a mandatory health or safety
standard .•. ' any director, officer, or agent of such corporation who
knowingly authorized, ordered, or carried out such violation •.. shall be
subject to the same civil penalties, fines, ... that may be imposed upon a
person under subsections (a) and (d).

125'1

The president of Miles Sand and Gravel Company and the plant superintendent
are alleged to have "knowingly authorized, ordered, or carried out" the
alleged violation of 30 C.F.R § 56.11-1 cited in Withdrawal Order No.
351863, issued May 1, 1979. The cited regulation requires that a safe
means of access shall be provided and maintained to all working places.
The withdrawal order alleged that an employee was observed walking the
reject conveyor belt with a grease gun in his hand. It further alleged
that the reject conveyor is 300 feet long and approximately 30 feet above
the ground at its highest point. Both respondents filed written statements
denying the allegations of the petitioner.
FINDINGS OF FACT:
1. On May 1, 1979, Miles Sand & Gravel Company was a corporation and
its president was Frank L. Miles, respondent, and the plant superintendent
was Ben Leiler, respondent. (Exhibits 4 and 5).
2. The mine where the alleged violation took place is a surface sand
and gravel mine with seven employees. (Exhibit 5).
3. Miles Sand & Gravel Company has more than one plant location and
is a medium sized sand and gravel operation located in the State of
Washington. (Tr. 42).
4. Miles Sand & Gravel Company paid a penalty assessment of $150.00
for the violation of 30 C.F.R. § 56.11-1 alleged in Withdrawal Order
351863, issued May 1, 1979. (Exhibit 8).
5. The corporate operator has a history of seventeen paid violations
and the· respondents have no previous violations (Exhibit 8, Tr. 47).
6. The violation alleged in Withdrawal Order No. 351863 was abated
promptly and in good faith by the corporate operator. (Tr. 145, Exhibit
1).
7, At the time of the inspection on May 1, 1979, the MSHA inspector
observed and photographed an employee of the corporate operator walking up
the reject conveyor toward the head pulley with a grease gun in his hand.
(Tr. 25, Exhibit 7).

The conveyor is approximately 300 feet long and 30 to 40 feet
above the surface of the ground. The conveyor belt itself is approximately
30 inches wide. (Tr. 71) .
8,

9. On the day of the inspection, May 1, 1979, the means of access
provided to an employee in order to grease the head pulley of the conveyor
belt ·was to either walk up the conveyor belt or to climb up the reject rock
material which falls off the end of the conveyor and forms a pile on the
ground. (Tr. 37).

10. The accumulation of rock material from the end of the conveyor
builds in height until it is sufficiently high enough to allow an employee
to walk up the refuse pile and grease the head pulley at the end of the
conveyor belt. (Tr. 37).
11. In order to abate the withdrawal order for the alleged failure to
provide a safe means of access to a working place, the employees of the
corporate operator lower.ed the elevated grease fittings to a safe
lubricating location; (Exhibit 2).

12. On February 5, 1979, at another gravel pit owned by the corporate
operator and located in the State of Washington, an employee was injµred,
after greasing the head pulley on the elevated end of a conveyor, when his
foot slipped on the conveyor belt and he fell approximately 15 feet into a
sand pile. The conveyor was protected with a walkway and railing. (Exhibit

6).
ISSUES:

1. On May 1, 1979, did the corporate operator fail to provide and
maintain a safe means of access to the working area, thus violating 30
C.F.R. § 56.11-1 as alleged in the withdrawal order?
2. If so, did. the respondents knowingly authorize, order, or carry out
such violation within the meaning of section ·llO(c) of the Act?

DISCUSSION:
Respondent Ben Leiler made admissions which go to the unsafeness of
the access to the head pulley and also go to his knowledge of unsafeness.
He stated to the inspector that it was very "taboo" to grease conveyors in
the manner being used, but that they did not have the manpower to install
greasing locations. (Tr. 39). At the time of the inspection, he also
stated to the inspector that a few months prior to the inspection on May 1,
1979 ~ an employee had been injured at their other plant when he fell
approximately 15 feet into a sand pile from a conveyor belt while greasing
the head pulley. That conveyor was equipped with a walkway and railing,
but the conveyor observed by the inspector on May 1, 1979, was not so
equipped.
There were two options mentioned as access open to employees who were
maintaining and greasing the head pulley and any other parts connected with
the conveyor. One was the method observed by the MSHA inspector, with
the employee walking up the conveyor, and the other method was to climb up
the reject pile at the end of the conveyor after the pile was of sufficient
height.
Witnesses for the respondents gave the op1n1on that it was safe to
climb the reject pile in order to service the head pulley. However, even
if this were true, if there is no reject pile at the time, the only means
of access would be for an employee to walk up the conveyor belt.

Mr. Leiler agreed that it was hazardous to walk up the conveyor belt
and that he had intended to correct the situation by lowering the grease
fittings to ground level. This was his intention after the employee fell
from the conveyor belt several months earlier, and was injured. The reason
given for the failure to install the lowered fittings was a lack of time,
since all available men were on production. It is significant that there
are other reasons why an employee might have to climb up the reject pile
other than to grease the head pulley. Rollers have to be changed
periodically on the conveyor and a motor or the V-belt drives might have to
be changed.
Under the circumstances, there was no consis~ent and safe means of
access to the work area provided by the corporate operator. According to
the employee who was observed walking up the conveyor belt, this was a
regular method of access to the area which was to be greased. Thus, the
petitioner has shown by a preponderance of the evidence that a safe means
of access to the working area was not maintained and provided and that
there was a violation of 30 C.F.R. § 56.11-1.
The next question was whether or not respondents knowingly
authorized, ordered, and carried out such violation within the meaning of
section llO(c) of the Act.
The Commission has found that Congress did not intend that "knowingly"
should be synonymous with "willfully". It has also supported a judge's
finding that "knowingly" as used here means •iknowing or having reason to
know". Secretary of Labor, Mine Safety and Health Administration v. Kenny
Richardson, BARB 78-600-P, (Jan. 19, 1981).
Respondent Ben Leiler, by his own admissions, knew that access to a
working·place by walking up the conveyor belt was unsafe or hazardous prior
to the date of the inspection on May 1, 1979. He told the MSHA inspector
that he had wanted to move all grease locations down to ground level
since the earlier experience of the employee falling off of the conveyor
belt. However~ no changes were made until after the withdrawal order was
issued on May l~ 1979. By the following day, the work of lowering the
grease fittings was accomplished. Thus, no action was taken until an MSHA
inspector happened along and observed the violation taking place. I
conclude from his own admission that respondent Ben Leiler knew or had
reason to know of the continuing violation on or before May 1, 1979, and,
as superintendent for the corporate operator, that he did nothing about it.
Accordingly, he violated section llO(c) of the Act as alleged by
petitioner.
The evidence does not show that respondent Frank L. Miles knew or had
reason to know that a safe means of access was not provided and maintained
to the working place on or before May 1, 1979, that being the date that the
withdrawal order was issued and the cited regulation was violated. There

1257

was hearoSay testimony from respondent Leiler indicating that Miles may have
been aware of the fact that employees were walking up the conveyor belt
to gr-ease the head pulley, but this evidence is neither conclusive nor
substant:lal.
CONCLUSIONS:
1. The undersigned Administrative Law Judge has jurisdiction over the
parties and the subject matter.
2. The Miles Sand & Gravel Company is a corporation and on May 1,
1979, it violated 30 C.F.R. § 56.11-1 as alleged in Withdrawal Order No.
351863 in failing to provide and maintain a safe means of access to a
working place.
3. Respondent Ben Lieler violated section llO(c) of the Act as
alleged in the complaint of the petitioner.
4. Petitioner has failed to prove that respondent Frank L. Miles
violated section llO(c) of the Act as alleged.
ORDER
The petition filed in DOCKET NO. WEST 80-332-M, Frank L. Miles,
respondent is hereby dismissed. In DOCKET No. WEST 80-333-M, Respondent
Ben Leiler is found to have violated section llO(c) of the Act and is
ordered to pay a penalty assessment of $250.00 within 30 days of the date
of this decision.

' -? ,-1(/2£ ~

C./f-7 ( ~,;_~~ ""

/Jon D. Boltz
, ~7)
: Administrative i~w Judge
Distribution:
Edward Fitch, Esq., Office of the Solicitor, Unite<l States Department of
Labor, 4015 Wilson Blvd., Arlington, Virginia 22203
Mr. Frank L. Miles, President, Miles Sand & Gravel Company, P.O. Box 130,
Auburn, Washington 98002
Mr. Ben Leiler, Plant Superintendent, Miles Sand & Gravel Company,
P. 0. Box 130, Auburn, Washington 98002

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

MAY 13 1981

)

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

)
)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 79-141-M

)

v.

)
)
)

KENNECOTT COPPER CORPORATION, AND
M. M. SUNDT CONSTRUCTION COMPANY,

)
)

ASSESSMENT CONTROL NO.
02-00150-05003
MINE: Kennecott Ray

)

RESPONDENTS.

)
DECISION

APPEARANCES:
Mildred R. Wheeler, Esq.
Office of the Solicitor
United States Department of Labor
450 Golden Gate Avenue
San Francisco, California 94102
for the petitioner.
Patrick Paterson, Esq.
1700 First National Bank Plaza
100 West Washington Street
Phoenix, Arizona 85003
Marvin A. Husted, Vice President
M. M, Sundt Construction Company
4101 East Irvington
Tucson, Arizona 85726
for the respondents
Before: Judge John J. Morris
STATEMENT OF THE CASE
In this case the Secretary of Labor on behalf of the Mine Safety and
Health Administration (MSHA) seeks an order affirming certain citations
and assessing civil penalties. The contest arises under the Federal Mine
Safety and Health Act, 30 U.S.C. § 801 ~ seq.(1977).
Pursuant to notice, a hearing was held in Phoenix, Arizona on April 3,
1980. At that time MSHA and Kennecott were the only parties to this
action. At the hearing, Kennecott indicated its desire to withdraw its
notice of contest of citation nos. 377273, 377270, 377269, and 377268.
They admitted the violations occurred and agreed that the penalties
proposed were reasonable.

125B

MSHA moved to dismiss citation nos. 377272 and 377267. In support
thereof, the Secretary stated that there was insufficient evidence to prove
these alleged violations.
The Secretary and Kennecott submitted a stipulation of facts as to the
remaining citation nos. 377265 and 377266. The occurrence of the alleged
violations was not disputed. Respondent contested these citations on the
ground that the violations were the responsibility of M. M. Sundt
Construction Company (Sundt), an independent contractor. Kennecott also
argued that if it were held liable for these violations it should not be
found to have been negligent because it had no control over the job site
where the violations occurred.
Subsequent to this hearing, MSHA adopted regulations establishing a
method for citing independent contractors. As a result of these
regulations, the Federal Mine Safety and Health Review Conunission in
Secretary v. Pittsburgh .and Midway Coal, BARB 79-307-P et. al. (1980) gave
the Secretary the opportunity to decide whether to continue pursuing the
existing action against the owner-operator or to proceed against the
independent contractor claimed to have violated the standards.
In light of the regulations and the P & M decision, I issued an order
directing the parties to state their positions with respect to these recent
developments. Kennecott responded by restating its contention that Sundt
was solely responsible for the violations. It requested that the citations
be vacated. The Secretary chose to continue the proceedings against
Kennecott unless Sundt agreed to voluntarily substitute itself as the
respondent with respect to the two citations in question.
On 'November 10, 1980, Kennecott submitted a motion to substitute Sundt
for itself with respect to citation nos. 377265 and 377266. Sundt
indicated its agreement to this proposal. Sundt stated that it would
withdraw the notice of contest as to these citations if the penalties were
recomputed to reflect the amount which would have been assessed if the
citations had been issued originally to Sundt. Sundt contended that the
penalty should be based on its company size and history of violations
rather than on Kennecottis.
Sundt was subsequently joined as a party in this case, but only as to
citation nos. 377265 and 377266. On May 4, 1981, the Secretary and Sundt
filed a motion proposing penalties based on Sundt's size, history of
violations and prompt good faith abatement of each violation.

ORDER
Pursuant to 29 C.F.R. 2700.11 Kennecott's notice of contest as to
citations nos. 377273, 377270, 377269 and 377268 is withdrawn. These
citations are affirmed, After reviewing the criteria for the assessment of
a penalty, I also affirm the proposed penalty for each of these citations
set forth below.
Citation No.
Citation No.
Citation No.
Citation No.

377273
377270
377269
377268

$195.00
122.00
150.00
130.00

Kennecott is directed to pay these penalties within 30 days of the date of
this order.
Pursuant to 29 C.F.R. 2700.11, MSHA's motion to dismiss citation nos.
377272 and 377267 is granted. These citations and their proposed penalties
are vacated.
Furthe~ pursuant to 29 C.F.R. 2700.11, Sundt's notice of contest as to
citation nos. 377265 and 377266 is withdrawn. These citations are
affirmed. After reviewing the criteria for assessment of a penalt~ I also
affirm the proposed penalty for each of these citations as set forth
below.

Citation No.
Citation No.

377265
377266

$90.00
65.00

Sundt is to pay these penalties within 30 days of the date of this order .

•

DISTRIBUTION:
Mildred R. Wheeler, Esq., Office of the Solicitor, United States Department of Labor, 450 Golden Gate Avenue, San Francisco, California 94102
Patrick Paterson, Esq., 1700 First National Bank Plaza, 100 West
Washington Street, Phoenix, Arizona 85003
Mr. Marvin A. Husted, Vice President, M.M. Sundt Construction Company,
4101 East Irvington, Tucson, Arizona 85726

126J

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF DIANNE MEULLER,
Complainants

22041

IAY 1 ( 198l

Complaint of Discrimination
Docket No. WEST 81-99-DM
Aaron Crescent Valley Mine

v.
AARON MINING, INC.,
Respondent
DEQISION APPROVING SETTLEMENT
Appearances:

Linda R. Bytof, Attorney, U.S. Department of Labor, San
Francisco, California, for the complainants; Bruce T. Beesley,
Esquire, Reno, Nevada, for the respondent.

Before:

Judge Koutras
Statement of the Case

This is a discrimination proceeding initiated by the complainants
against the respondent pursuant to section 105(c)(l) of the Federa~ Mine
Safety and Health Act of 1977, charging the respondent with unlawful
discrimination against the complainant Dianne Meuller for exercising
certain rights afforded her under the Act. The matter was initially
scheduled for hearing in Reno, Nevada on March 17, 1981, but the matter
was continued at the request of both parties. A further continuance
was granted when the parties advised me of a proposed settlement disposition
of the controversy.
Discussion
On May 4, 1981, MSHA filed a motion to dismiss, complainant's
consent, and the settlement,agreement. In support of the motion to
dismiss, MSHA states as follows:
1.

On May 4, 1981, Dianne Meuller and Respondent Aaron Mining,
Inc. entered into a settlement agreement resolving the issues
raised by Complainant's discrimination complaint.

2.

By the terms of the agreement, Complainant, Dianne Meuller,
agreed to withdraw her discrimination complaint filed with the
Mine Safety and Health Review Administration on May 23, 1980.

1262

3.

Complainant, Dianne Meuller has authorized the Secretary
of Labor to move for dismissal of the Complaint filed on
her behalf, as evidenced by the attached statement of
Complainant's consent.

Pursuant to the agreement between Complainant, Dianne Meuller and
Respondent, Aaron Mining, Inc., the proposed settlement is as follows:

1.

Respondent, Aaron Mining, Inc., agrees to pay Dianne Meuller
the sum of $6,300.00 payable upon Ms. Meuller's execution
and delivery of the agreement.

2.

Respondent further agrees to expunge from Ms. Meuller's personnel
records any and all reference to the circumstances relating to
the subject complaint of discrimination.

3.

Insofar as Respondent currently is not engaged in the operation
of any mine within the State of Nevada, Respondent cannot
reinstate Ms. Meuller to her former job as a blaster. However,
if during the twelve (12) month period subsequent to the date
of execution of the agreement by Respondent, Respondent commences
to operate any mine within the State of Nevada, and directly
employs at said mine individuals with duties similar to that
of a blaster, Respondent further agrees to offer Ms. Meuller
employment in said mine in any job with the same or siinilar
duties and at the same rate of pay she was earning at the date
of her termination from the Aaron Crescent Valley Mine.

4.

Complainant, Dianne Meuller, agrees to withdraw the subj
complaint of discrimination filed with the Mine Safety and Health
Administrat·ion on May 23, 1980 and hereby authorizes the Secretary
of Labor to dismiss the complaint filed with the Federal Mine
Safety and Health Review Commission on her behalf.

5,

Upon execution of the Settlement Agreement, the payment of
$6,300.00, and the expungement of her personnel records, as
aforesaid, Complainant agrees to and hereby releases Aaron Mining,
Inc. from any and all liability arising out of her termination
from Aaron Mining, Inc. on April 24, 1980, which is the subject
of her Complaint referred to herein.

MSHA has submitted a copy of a consent statement executed by Ms. Meuller
on May 4, 1981, which verifies that she voluntarily withdrew her complaint
and entered into the settlement agreement with respondent. Under the
circumstances, I see no reason why the motion should not be granted.
ORDER
In view of the foregoing, the proposed settlement disposition of this
matter is APPROVED and the Complainant's motion to dismiss is GRANTED.

J1
~-cte~. ~utras
Administrative Law Judge

.

1 '._,
. J L.'
_.._
\) ~'J

Distribution:
Linda R. Bytof, Esq., U.S~. Department of Labor, Office of the Solicitor,
Box 36017, San Francisco, CA 94102 (Certified Mail)
Bruce T. Beesley, Esq., Woodburn, Wedge, Blakey & Jeppson, 16th Floor,
First Nat'l Bank Bldg., One East First St., Reno, NV.80505 (Certified
Mail)

12611

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

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

MAY 14 1981

Civil Penalty Proceeding
Docket No. WEVA 8U-658
A.O. No. 46-02724-03010H

v.

No. 1 Surface Mine

ISLAND CREEK COAL CO.,
Respondent
DECISION
Appearances:

James P. Kilcoyne, Jr., Attorney, U.S. Department
of Labor, Philadelphia, Pennsylvania, for the Petitioner;
Marshall S. Peace, Esquire, Lexington, Kentucky, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding 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), proposing a civil penalty
assessment for one alleged violation of mandatory safety standard 30
CFR 77.1607(b), The alleged violation was served on the respondent
on September 5, 1979, through the issuance of citation no. 0648106,
a section 107(a) imminent danger order issued by MSHA Inspector Sherman
L.
The condition or practice described by the inspector on
the face of the order is as follows:
The elevated inclined roadway over which four 120 ton.
rock trucks were hauling spoil material from the
shovel to the valley fill at the Mill Creek No. 3
was slipping because it was raining hard and the
road was covered with mud. The rock trucks were
sideways when they came down the roadway
and had to raise their beds for more traction going up
the roadway. Even with the beds raised the trucks
were spinning their way up the incline. The roadway
did not have adequate berms on its outer banks which
was elevated more than 100 feet above the hollow. The
rock truck drivers did not have full control of the
trucks while coming down the roadway to the fill

(77.1607(b)). It is reasonable to expect someone would
get injured, possibly fatally, if the trucks continued
to haul over this roadway in the above condition and
it is reasonable to expect this could happen before
the rain stops and/or the condition is corrected.
Respondent filed an answer to the proposal .for a~sessment of civil
penalty and denied the existence of the alleged violation. Respondent
asserted that it followed the inspector's directions in its desire to
cooperate with him, but denied that the conditions described constituted
a violation of the Act or regulations.
A hearing was convened at Charleston, West Virginia, on March ~' 1981,
and the parties appeared and participated fully therein. The parties
were afforded an opportunity to file post-hearing briefs, and the arguments
presented herein have been fully considered by me in the course of this
decision.
Issues
The principal issues presented in this proceeding are: (1) whether
respondent has violated the provisions of the Act and implementing
regulation 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-violation
based upon the criteria set forth in section llO(i) of the Act.
In determining the amount of a civil penalty assessment, section
110 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 charged,
(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, Pub. L. 95-164,
§ 801
~·

2.

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

3.

Commission Rules, 29 C.F.R.

30 u.s.c.

§

2700.l et~·

Stipulations
The parties stipulated to the following (Tr. 6-8):
1. No. 1 Surface Mine is owned and operated by Island Creek Coal
Company.

126fi
j

2. Island Creek Coal Company and the No. 1 Surface Mine are
subject to the jurisdiction of the Federal Mine Safety and Health
Act of 1977.
/

3. The administrative law judge has jurisdiction over this
proceeding pursuant to Section 105 of the 1977 Act.
4. The inspector who issued the subject citation was a duly
authorized representative of the Secretary of Labor.
5. A true and correct copy of the subject order was properly
served upon the operator in accordance with Section 104(a) of the 1977
Act.
6. Copies of the subject order, modification and termination are
authentic and may be admitted into evidence for the purpose of establishing
their issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
7.
issued.

The alleged violation was abated after a withdrawal order was

8. Island Creek Coal Company is a large operator within the meaning
of the Act and assessment of a civil penalty in these proceedings will
not adversely affect the operator's ability to continue in business.
Testimony and Evidence Adduced by the Petitioner
William Hamrick, safety engineer, International Safety Division,
United Mine Workers of America, testified that on September 5, 1979,
he visited Island Creek's No. 1 Surface Mine in order to inspect the
roadway at the Mill Creek job site. He concluded that the haul road
was slippery because it was raining continuously, and he noticed trucks
slipping and sliding due to the mud on the embankment and on the incline.
He determined that the truck operators did not have full control of their
vehicles, and he observed the 120-ton Webco trucks going up the hill
with their beds raised in order to
the back wheels in traction. He
testified that he told mine superintendent L. A. Moses that the weather
conditions were too bad to operate on the road.
Mr. Hamrick stated that only one area of the roadway was repaired
prior to the arrival of th~ )1SHA inspector. This was not on the road
incline, but in a location near the shovel. Mr. Hamrick and truck driver
Jim Humphrey drove over to the road with Inspector Slaughter and they
pointed out to him that there were no berms on either side of the road
incline. Mr. Hamrick explained that the lefthand side of the uphill
road dropped 50-60 feet to a coal pit and the right side dropped about
100 feet. Mr. Hamrick believed that the weather conditions could cause
the trucks to collide, and that the lack of rocks on the berms would
not keep the trucks from going over the steep embankment.

1267

Mr. Hamrick stayed at the mine throughout the day, periodically
visiting the roadway to inspect conditions. He observed trucks hauling
dry material down the road to the valley fill. He stayed at the property
until about 3:15 or 3:30 and he noted that it was still raining at this
time (Tr. 13-21).
On cross-examination, Mr. Hamrick conceded that h~ had never operated
any of the large Webco trucks. He described the descent of the fully
loaded trucks down the road incline as follows (Tr. 24-25):
Well, when they approach the steep incline, 'cause
I was standing, you know, looking up at the trucks and I
could tell the trucks were sliding, the operator, you know,
in his steering, and I guess in his braking, the trucks
would slide back. You know, I'd say, approximately, sideways for 20 feet. They'd catch, go to the other side, same
way, I'd say a distance 15 to 20 feet.
In response to bench questioning, Mr. Hamrick stated that he talked
with several of the truck drivers on the day in question, and while two
of them acknowledged that they were slipping, they still felt that they
had full control of their vehicles. Another driver felt that the road
conditions were too dangerous, that he did not have full control of his
vehicle, and he withdrew his truck from the roadway (Tr. 26-29).
In response to further questions, Mr. Hamrick indicRted that he had
had problems with the road in question on previous occasions
A citation
had been issued previously on April 27, 1979, for lack of berms on the
roadway and for slippery road conditions. His recommendation for keeping
the roadway in question safe included packing hard material, such
shale, on the road, which would hold longer and have a good grip for
traction (Tr. 145-146).

as

MSHA Inspector Sherman Slaughter, testified that he visited No. 1
Surface Mine on September 5, 1979, after receiving a request to do so
from Mr. Hamrick. He arrived at approximately 11:15 or 11:30 a.m.,
and met with Mr. Humphrey, Mr. Moses, Mr. Chapman, and Mr. Hamrick.
Using a sketch of the haul road and adjacent area, exhibit P-1,
Mr. Slaughter demonstrated the physical layout of the haul road and
discussed his observations of the road conditions on September 5.
He stated that it was raining and the roads were slick. Trucks were
hauling spoil materials, a fine, grainy-like sandstone material, and
spreading it on the road. Other loads of material were being transported
down to the valley fill area.
feet beneath the lefthand side
of the road was a coal pit and 100 feet below the right side was the
valley fill. He noted that there were inadequate berms on either side
of the road for which he later issued a citation at 11:45 a.m.

After speaking with company officials about the condition of the
haul road, Mr. Slaughter drove to the valley fill area, and periodically,
he would return to the haul road to check whether the conditions had
worsened. At 4:50 p.m., he decided that it was necessary to issue an
imminent-danger order for ,a violation of section 77.1607(b), and in
order to keep the trucks from using the roadway because of the slipping
conditions.
Mr. Slaughter believes that section 77.1607(b) requires a truck
operator to maintain full control of his equipment at all times. He
determined that the operators in this instance were not in control because
he saw one truck going up the hill with its bed up, and it could only
partially go up the roadway because of the muddy, slick conditions. He
noted that when the trucks attempted to brake, they would slide sideways.
Since the berms were inadequate, he was concerned that the trucks could
slide toward the valley fill which was a 100 foot drop over the side
of the roadway.
Mr. Slaughter explained that rocking the road had helped for awhile,
but the continual rain had caused the road to become slick again. He
determined that the respondent was negligent in that it should have stopped
the hauling earlier. He noted that it was raining all day and both
Superintendent Moses and the mine foreman were near the haul road
throughout the day. He felt that there was a danger of a fatal injury
if a truck went over the embankment (Tr. 29-45).
Mr. Slaughter testified that the operator had
about 12:30 or 1 o'clock. Because it continued
to rain,
that they continue to rock the road, and he
conced~d
not tell management to cease their production runs
because it was not raining hard and the trucks were still getting
traction. About 3 o'clock, conditions begain to worsen, which led him
to issue an imminent-danger order. He felt that since the truck drivers
did not have full control of their vehicles, they could possibly have
lost control
and gone through any berm at the side of the roadway
(Tr. 45-65).
Mr. Slaughter testified that since the
road was wet, muddy, and slick, there was a detrimental effect on the
truck driver's ab
to keep his truck under control, and in his view the
respondent should have stopped production and use of the road prior
to the time he issued the order (Tr. 65-67).
Mr. Slaughter admitted that if
the operator had continued rocking the road, keeping it dry enough
to maintain traction, he may not have issued the order. He indicated
that the violation was eventually abated by the use of a grader, which
skimmed off the slick material on the road's surface, and he terminated
the order once the Lrucks were able to get traction on the road (Tr.
40-41, 67-76).

126B

In response to further questions, Mr. Slaughter stated that he
was not aware of prior complaints about the road's conditions. He had
never issued any citations on the road in the past (Tr. 93-96, 126-129,
138-139).
James L. Humphrey, mobil equipment operator, and chairman of the
Mine Safety Committee, ,testified as to the factors which led him to
withdraw his truck from operation on September 5, 197~. He stated that
it had been raining, causing the road to become slick and he was having
difficulty in maintaining full control of his vehicle. He also felt
that the top of the hill was too soft and muddy, and the lack of berms
made it unsafe to drive on the road. Once he withdrew himself, he
discussed the matter with mine foreman, Ed Allen, and then called
Mr. Hamrick at approximately 10:30. Thereafter, MSHA Inspector Slaughter
arrived, but prior to his arrival, Mr. Humphrey stated that he observed
two or three trucks still driving on the slick haul road. He testified
that rocking the road works for a certain period of time, but if it
continues to rain, the sandstone material breaks up, and the road
becomes slick again (Tr. 78-87).
On cross-examination, Mr. Humphrey testified that two or three
other truck operators did not withdraw themselves on the day in question.
He admitted that his own truck had some mechanical defects, in that the
tires were worn, but he did not complain to mine management about the
condition of his tires (Tr. 87-90).
In response to bench questioning, Mr. Humphrey indicated that mine
management did not object to his withdrawing himself from the roadway
in question, and he went back to work the next day after the road
passed inspection (Tr. 90-93). Mr. Humphrey explained the extent.of
previous complaints about the road which had been brought to the attention
of management. He stated that any time it rained or if the ground froze
and thawed, the conditions presented an imminent danger. He felt that
it is a mine foreman's duty to conduct a preshift examination and warn
the miners of any danger before they begin to work. He believed that
the problem could have been solved if the respondent had begun plowing
the road at 6:30 a.m. and put gravel on it. He felt that a hard rock,
such as limestone, should be used (Tr. 139-145).
Testimony and Evidence Adduced by the Respondent
L. A. Moses, mine superintendent, testified that he had been at
the mine and had observed the truck hauling prior to Mr. Humphrey's
complaint. He had already ordered the shovel operator to put sandy,
coarse material on the road. Using the sketch, (exhibit P-1), Mr. Moses
explained what was being done to the road. On the upper inclined
portion, dry material was dumped and spread with a dozer. The
true.ks would turn in the shovel area, back down the grade, and dump their
loads. This process continued for approximately 700 to 800 feet, where
the trucks would turn around, and Mr. Moses testified that the trucks

were not slipping and sliding badly because they were able to turn around.
The work on the road continued all day and the truck operators were never
instructed to stop placing material on the road surface. Mr. Moses
stated that no trucks had ever run off the edge or into a berm and
they had never had any injuries or accidents on the road (Tr. 103-110).
On cross-examination, Mr. Moses admitted that he.was not at the
haul road between 3 and 5 o'clock but was working in another mine ar~a.
However, he indicated that he was in conununication with the second shift
foreman by means of a radio. He stated that it was normal for a truck
to slip and slide as it proceeded down a wet road. He did not consider
the road to be unsafe and he never heard any of the truck operators
claim that it was (Tr. 110-114).
In response to bench questioning, Mr. Moses stated that the company
policy was to either rip up the road or put dry material on it if they
found it to be slippery. It is the responsibility of a foreman, who
stays on the scene, to determine whether or not there are problems with
road conditions. He admitted that on the day in question it had been
raining and the roads were slippery. He explained that just after
Mr. Humphrey had taken himself off the job, they decided to do something
about the road. Prior to the time that the imminent danger order was
issued, they had never shut the haul road down completely because of
wheather conditions. It was the first time they had to shut down for a
full shift (Tr. 120-124).
Findings and Conclusions
Fact of violation
Citation No. 0648106, issued by Inspector Slaughter on September 5,
1979, is an imminent danger order issued pursuant to section 107(a)
of the Act. The order cites a violation of mandatory safety standard
30 CFR 77. 1607 (b), which states as follows: "Mobile equipment operators
shall have full control of the equipment while it is in motion. 11
The fact that the inspector found that the conditions cited amounted
to an imminent danger is not controlling as to the question of whether
those conditions may serve to establish a violation of section 77.1607(b).
It seems obvious to me from the conditions described by the inspector
on the face of the order, a~ well as his testimony at the hearing, that
he believed the trucks which he observed using the haulroad in question
were not being kept under full control by the drivers while coming down
the inclined portion of the road, and while attempting to negotiate the
incline in the opposite direction. The inspector's conclusions in this
regard were based on his observations of trucks sliding sideways as they
came down the incline, as well as their spinning and sliding even with
their beds lowered to provide traction on the rain-slicked roadway.
Therefore, the critical question presented is whether the evidence and
testimony adduced in this case supports the petitioner's contention that
the trucks in question were not being maintained under full control by
the operators.

127:1

In support of the citation issued in this case, petitioner relies on
the testimony of the inspector who observed at least two of respondent's
trucks on the elevated haul road in question. One of the trucks was
slipping and sliding while attempting to negotiate up the elevated
incline with its bed raised for traction. Another loaded truck was coming
down the incline and was slipping sideways as it traversed the slippery
roadway. In both instances, the roadway was
wet due to a
rather constant rainfall during the entire day in question, and even
though respondent was attempting to keep the roadway dry by "rocking"
the roadway, there came a point in time during the shift when the inspector
believed that the truck drivers were unable to maintain full control of
their trucks as required by section 77.1607(b). Petitioner points out
that one of the drivers, James Humphrey, testified that he withdrew himself
from driving a truck on the day in question because he could not maintain
full control of the vehicle due to the slippery conditions of the raodway.
Petitioner further asserted that respondent's witness did not deny that
he observed vehicles slipping and sliding during the day in question, and
argues that the respondent presented no evidence that on a normal operating
day trucks slip and slide while operating on the incline in question,
and drop their truck beds in an attempt to keep the vehicles under
control. In summary, petitioner maintains that its evidence supports
a finding that trucks do not normally slip and slide while operating
on the haulroad in question, and that the slipping and sliding of the
trucks on the day in question is a certain indication that the operators
did not have full control·of the vehicles while
were in motion.
Respondent argues that since there were no accidents, injuries, or
trucks sliding into berms on the haul road in question on the day the
citation issued no inference can be made that the trucks were not under
the full control of the drivers. Although the inspector spoke to some
of the drivers at the beginning of the second shift, there is no evidence
that he discussed the road conditions with them immediately before deciding
to issue the imminent
order. Since the inspector was present
and had been periodically checking the road all day, respondent asserts
that until the order was issued the drivers must have had full control
of their trucks since the inspector issued no earlier violations.
Further, respondent
out that the condition which presented any
hazard was the slick haul road caused by continuing rain, and the fact
that the drivers were trying different techniques to
traction does
not indicate that
did not have full control of the trucks. Conceding
that an accident, collision, or a complete spin-out could establish a
lack of full control of the trucks by the drivers, absent any competent
testimony by any of the drivers, respondent maintains that the opinion
testimony of the inspector should be given little weight in establishing
a violation.
After careful consideration of the arguments presented, I conclude
that the petitioner has the better part of the argument. Respondent's
assertion that an accident or near-miss has to occur before a violation
is established is rejected. I find that the testimony of the inspector,
coupled with the testimony of UMWA representative Hamrick, who also

1272

observed the slipping and sliding trucks, as well as Mr. Humphrey, the
driver who withdrew himself and testified that he was experiencing
difficulty in maintaining control of his vehicle due to the slick road
conditions, establishes a violation of the cited standard by a preponderance
of the evidence. In addition, even though respondent's witness Moses
believed that slipping and sliding on a wet road was normal, I believe
it is reasonable to conclude that since the respondent was attempting
to improve the road conditions by hauling and spreading dry materials
on the inclined portion of the roadway, it did so out of recognition
that trucks were having difficulty negotiating the roadway. It seems to
me that if the respondent really believed that slipping and sliding
was normal, it would not have gone to such great measures to dump and
spread dry materials on the roadway. Under the circumstances, I conclude
and find that the trucks which were attempting to traverse the roadway
in question were not under the full control of the drivers, and the citation
is AFFIRMED.
History of prior violations
Respondent's history of prior violations is reflected in exhibit
P-4, a computer ·print-out detailing 25 prior paid citations by the
respondent for the period September 5, 1977, through September 5, 1979,
through September 4, 1979. I take note of the fact that there are no
prior citations of section 77.1607(b), and based on the size and scope
of respondent's mining operation, I cannot conclude that its history
of prior violations is such as to warrant any increase in the ~ivil penalty
assessed by me in this matter.
Size of business and effect of penalty on the respondent's ability to
continue in business.
The parties stipulated that the respondent is a large operator
and that an assessment of a civil penalty for the violation in question
will not adversely affect respondent's ability to remain in business.
I adopt this stipulation as my finding on this issue.
Good faith compliance
The record reflects that abatement was achieved after a withdrawal
order was issued and the parties so stipulated. Although respondent
may have been taking steps to improve the conditions of the roadway
during the rain, its rocking.became fruitless when it became evident
that the rain would not stop, and only after the issuance of the order
was abatement achieved. Abatement was achieved by stopping operations
until the condition of the roadway improved. Under the circumstances,
respondent had no choice but to cease operations and it did so at the
inspector's insistence. Accordingly, I cannot conclude that respondent
should be unduly rewarded for any abatement efforts which came about
as a result of a withdrawal order.

Gravity
Petitioner argues that the violation is very serious in that the
inspector issued an imminent danger order because he believed a driver
could be seriously injured before the rain stopped or before the respondent
could correct the hazardous road conditions. In support of its argument,
petitioner points to the fact that the roadway in question was elevated
more than 100 feet above the valley fill belo~, that the berms may have
been inadequate to prevent a truck from going over the embankment, and
that if a truck did go over, it was reasonable to expect a serious injury.
Aside from its argument that no accident or injuries occurred, respondent
advances no additional arguments concerning the gravity of the citation.
After careful consideration of the arguments presented on this issue,
and taking into account the fact that the road conditions were slippery
and dangerous, a truck operating at the elevated incline some 100 feet
above the valley below, would be placed in a hazardous and precarious
position were it to slip and slide toward the embankment while loaded
and travelling down the incline. The same could be said for a truck
coming in the opposite direction attempting to negotiate the hill with
its bed down. Under the circumstances, petitioner's arguments are well
taken, and I conclude and find that the violation is serious.
Negligence
Conceding that the respondent attempted to correct the condition
which caused the citation by rocking the roadway in question, petitioner
nonetheless argues that the respondent failed to exercise reasonable
care in correcting the condition which caused the violation. The condition
which caused the violation was the failure of the truck driver's tQ maintain
full control of their vehicles. The reason they could not fully control
their vehicles was the fact that the steady rain was obviously washing
away the dry materials that respondent was dumping on the roadway, and
the road conditions eventually deteriorated to a point where the inspector
believed that allowing operations to continue any further would result
in serious inJuries. At that point in time, he issued his closure order
and use of the roadway ceased. Petitioner's argument suggests that the
respondent should have voluntarily closed the roadway down and ceased
all operations until the rain stopped. By failing to do this, petitioner
argues that respondent was negligent since it has the ultimate responsibility
to enforce safe working practices and procedures. Coupled with the fact
that respondent was previousiy informed that the elevated roadway is
hazardous when in a wet and slippery condition, the fact that mine
management was present and aware of the conditions of the roadway on the
day the citation issued, and the fact that it ceased to rock the road
prior to the issuance of the citation, petitioner argues that respondent
exhibited in
degree of negligence.
Petitioner does not assert that respondent is guilty of gross negligence.
Based on all of the ev~dence adduced in this case, I cannot conclude that
the respondent exhibited a reckless or deliberate disregard for the safety
of the drivers by failing to close the roadway down before the order

127~

issued. It seems to me that if MSHA believes that a wet and slippery
haulroad is ipso facto always hazardous and dangerous, then it should
take steps to shut down the roadway at the mine in question whenever
it rains. On the facts presented in this case, it seems to me that the
respondent was attempting to correct the road conditions by rocking
the roadway with dry materials to improve traction. Although the mine
superintendent was absent from the roadway location at the time the order
issued, he testified that he was in communication with a foreman by means
of a radio, and since none of the drivers complained, he did not believe
the roadway was dangerous. However, he conceded that he became concerned
and decided to do something about the road at the time Mr. Humphrey
withdrew himself. Under the circumstances, I cannot conclude that mine
management did nothing about the roadway conditions, nor can I conclude
that it simply chose to ignore the conditions.
With regard to respondent's asserted prior knowledge of the conditions
of the roadway, I take note of the fact that Mr. Hamrick's testimony
suggests a difference of opinion as to how to correct any slippery
conditions, and Mr. Hamrick indicated that some of the prior complaints
dealt with lack 6f sufficient berms rather than trucks operating out
of control. Further, Inspector Slaughter testified that he was not aware
of any prior complaints about the road conditions, and petitioner's
prior history of violations does not include any repeat violations of
section 77.1607(b). Under the circumstances, I cannot conclude that
the record supports ·a finding that respondent makes it a pract~ce to
totally ignore slippery road conditions on the haulroad in question, and
makes it a practice to ignore such conditions.
Finally, I take note of the fact that the inspector who finally
issued the closure order did so after he concluded that continued ~perations
would probably result in an accident or in]ury. Up until that point
in time, the inspector was periodically checking the conditions of the
roadway, and even though he stated that the respondent ceased rocking
the roadway at approximately 12:30 or 1:00 p.m., he did not advise the
respondent to continue with the rocking operation since it was obvious
that it was doing no further good to provide traction. He conceded
that he did not at that time advise mine management to stop using the
road because it was not raining hard and trucks were still able to maintain
some traction, and at approximately 3:00 p.m., he believed that conditions
had deteriorated to the point where he felt obliged to issue a closure
order. Therefore, since th~ inspector who was on the scene took no
action earlier than 3:00 p;m., to either issue a citation or a closure
order, I believe it was reasonable for mine management to conclude
that the roadway conditions were not such as to preclude the vehicle
operators from maintaining full control of their trucks.
In view of the foregoing, I conclude that the violation resulted
from the respondent's failure to exercise reasonable care to cease
operations at the time the order issued, and that this failure on its
part amounts to ordinary negligence.

l'!.7t·

Penalty Assessment and Order
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
and find that a civil penalty in the amount of $1,500 is reasonable and
appropriate for the citation which has been affirmed, and respondent
IS ORDERED to pay the assessed penalty within thirty (30) days of the date
of this decision and order.

~,,~£:

~~ge A. Koutras

Administrative Law Judge

Distribution:
James P. Kilcoyne, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA.19104 (Certified Mail)
Marshall S. Peace, Esq., Box 11430, Lexington, KY 40575 (Certified Mail)

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

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Docket No. SE 80-131
A.O. No. 40-02577-03001

Petitioner

v.
Daysville Tipple

UNITED MINERALS,
Respondent
DECISION
Appearances:

Carole M. Fernandez, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for petitioner;
N. F. Tankersley, United Minerals, Crossville,
Tennessee, for respondent.

Before:

Judge Koutras
Statement of the Proceeding

This civil penalty proceeding concerns proposals for assessment of
civil penalties filed by the petitioner against the respondent pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a), charging the respondent with three a'11.eged violations of mandatory
safety standards. Respondent filed a timely answer and a hearing was held on
March 10, 1981, in Knoxville, Tennessee. Upon the completion of testimony
and oral arguments, the parties were given the opportunity of submitting
posthearing briefs, and both parties filed written arguments on May·4, 1981,
and they have been considered in the course of this decision.
Issues
The principal issues in this proceeding 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.

1277

Furthermore, respondent has challenged the jurisdiction of the Act,
posing the additional issue of whether'its tipple is a "coal or other mine"
within that definition under the Act.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et ~·, Pub. L. 95-164.
2.

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

3.

Section 3(h) of the 1977 Act.

4.

Commission Rules, 29 C.F.R. § 2700.l et~·
Stipulations

The parties stipulated to the following (Tr. 5):
1. At the time the citations were issued, the tipple was a new facility
which had just started production, and it had no prior history of violations.
2. The tipple processes approximately 40,000 tons of coal -annually and
is a small operation.
3. Assuming the citations in question are affirmed, any civil penalties
imposed will not adversely affect respondent's ability to remain in business.
Jurisdictional Question
Respondent argues that its tipple is not a coal mine subject to the
regulations under Part 77 of Title 30, Code of Federal Regulations, and the
mandatory standards contained therein. It ma:t-rhains that its only regulatory authority is OSHAa As support for this defense, respondent raises
four arguments, a discussion of which follows.
Respondent first points out that it is not required to have a mining
permit from either the State or Federal Governments, and that it has no
written contracts with any mining operations to load coal. Next, respondent refers to the Hine Safety and Health Act of 1977, section 3, part 2,
and concludes that its tipple operation does not come within the scope of
the definition for a coal mine. It maintains that the words "custom coal
preparation facilities" refers only to activities conducted on, or processing
plants located at, a particular coal mine. Since its tipple is not on the
mine premises, it is not subject to the Act or its regulations. Finally,
respondent examines the legislative history of the Act and asserts that the
dangers which Congress sought to prevent in implementing the Act are not
those associated with a coal tipple. Therefore, respondent maintains it
should not! be subject to the regulations under the Act.

1278

Respondent's second defense refers to several cases issued by the
Department of the Interior's Office of Hearings and Appeals. One such case,
Western Engineering v. Office of Surface Mining, 1 IBSMA 202 (1979), held
that Western's river terminal was not subject to the regulations under the
Surface Mining Control and Reclamation Act of 1977 since the ambiguity of
the definition for a surface coal mine made it unclear whether the Act was
intended to cover Western's operations. By analogy, respondent argues that
the definition for a coal mine under the Mine Safety and Health Act is
equally as ambiguous and should not be applied to its tipple operation.
As a third defense, respondent appeals to the Commission's sense of
economic justice to support its position on this jurisdictional question.
From respondent's perspective, the costs and benefits of regulating tipples
do not warrant their being subject to the Mine Safety and Health Act.
In its pleadings, respondent asserts that it is not a bituminous, anthracite or lignite coal mine, but rather, a tipple which crushes and loads coal,
the bulk of which comes from 35 to 84 miles away, with most of it going to
the Department of Energy at Oak Ridge, Tennessee.
In addition to the assertions made by the respondent in its pleadings
and brief filed in this matter, the testimony of the witnesses reflects that
respondent owns several tipples, one of which has been regularl1 inspected
and regulated by MSHA for 2 or 3 years, and that respondent has a number of
customers for whom it processes coal at its tipple. This process includes
the crushing, cleaning, and sizing of coal which is brought to the tipple.
Respondent concedes·that while some of the coal is from intrastate ~ustomers,
the tipple also processes coal which crosses state lines (Tr. 139, 140).
Petitioner argues that respondent is subject to the jurisdiction of the
Act in that respondent's tipple is a "coal or other mine" withi.n the meaning
of section 4 of the Act, 30 u.s.c. § 803, the ~roducts of which enter commerce
or the operations of products which affect commerce. In support of its position, petitioner distinguishes those cases cited by respondent, issued by the
Board of Surface Mining Appeals, pointing to the different concerns of that
agency and the Federal Mine Safety and Health Administration. Petitioner
argues that the definition of a coal mine under the Mine Safety and Health
Act includes Respondent's tipple. Finally, respondent refers to Marshall v.
Stoudt's Ferry Preparation Cp~pany, 602 F.2d 589 (3rd Cir. 1979), cert.
denied, NA 79-614 (January 7, 1980), which it maintains supports its position that a tipple is subject to the provisions of the Act.
After a careful review and consideration of all of the jurisdictional
arguments presented in this case, I conclude that the tipple in question is
a mine within the meaning of that term as defined by the Act, and therefore
is subject to MSHA's enforcement jurisdiction. Section 3(h)(l)(c) of the
Act defines "coal or other mine" as "lands * * * on the surface or underground * * * used in, or to be used in, * * * the milling of such minerals,
and includes custom coal preparation facilities."

127B

The Dictionary of Mining, Mineral and Related Terms, Bureau of Mines,
1968 edition, page 859, defines the term 11 preparation plant" as including
any facility where coal is "separated from its impurities, washed and sized,
and loaded for shipment." The term "tipple" is defined at page 1145 as:
Originally the place where the mine cars were tipped and
emptied of their coal, and still used in that sense, although
now more generally applied to the surface structures of a
mine, including the preparation plant and loading tracks * * *·
The dump; a cradle dump * * *· The tracks, trestles, screens,
etc., at the entrance to a colliery where coal is screened and
loaded. [Emphasis supplied.]
In my recent decision, Harman Mining Corporation v. Secretary of Labor
and UMWA, Docket Nos. VA 80-94-R through VA 80-97-R (January 2, 1981), I concluded that based on the testimony and evidence presented, there was no question that Harman's tipple preparation plant was in fact a "coal or other
mine." As the facts here do not warrant a different conclusion, my rationale
in Harman Mining is applicable.
In my prior decision, I noted that the legislative history of the Act
supports a broad interpretation of the Act's coverage requiring that doubts
be resolved in favor of the Mine Act's jurisdiction. The report of the
Senate Committee on Human Resources states:
The Committee notes that there may be a need to resolve
jurisdictional conflicts, but it is the Committee's intention
that what is considered to be a mine and to be regulated under
this Act be given the broadest possible interpretation, and it
is the intent of this Committee that doubts be resolved in
favor of inclusion of a facility within the coverage of the
Act.
S. Rep. Noo 95-181, 95th Cong., 1st Sess. (May 16, 1977) at 14; Legislative
History of the Mine Safety a.nd Health Act, Committee Print at 602.
In Marshall v. Stoudt 1 s Ferry Preparation Company, 602 F.2d 589, 592
(1979), cert. denied, No. 79-614 (January 7, 1980), the Third Circuit held
that "the work of preparing coal or other minerals is included within the
Act whether or not extraction¥is also being performed by the operator."
Therefore, I cannot agree with respondent 1 s assertions that the plain words
of the Act or the legislative history support a finding that its tipple,
which is not on the mine premises, is not subject to the Act or its
regulations"
The cases cited by respondent under the Federal Surface Mining Act are
neither controlling or persuasive authority in deciding the instant jurisdictional issue. By merely examining the definition of surface coal mining
operations in 30 C.F.R. § 700.5, it is obvious that its coverage is more
narrow than that provided by the definition of "coal or other mine" under

l.2HU

the Federal Mine Safety and Health Act. The definition of surface coal mim.ng
operations refers to "activities conducted on the surface of lands in connection with a coal mine." Such activities include processing or preparation of
coal "at or near the mine site."
The definition of "surface coal mining operations"·under the Surface
Mining Act, by using limiting clauses, restricts the coverage of that law
to those processing plants that are "in connection with" or "at or near the
mine site. 11 The three cases cited by respondent concern themselves with
defining the scope of these limiting clauses in determining the jurisdiction
of that law. Specifically, Drummond Coal Company v. Office of Surface Mining,
IBSMA 80-56 (August 6, 1980), established a two-part test for coming within
the definition of a surface coal mining facility. A plant must be ·"conducted
on the surface or in connection with a surface coal mine, 11 and secondly, it
must be located "at or near a coal mine." To satisfy these tests, a judge
must look to ownership of the facilities in question and the relative
distances between the plant and the mine. No such analysis is required under
the Federal Mine Safety and Health Act of 1977. The definition of a 11 coal or
other mine" does not include limiting clauses which restrict coal preparation
facilities to those in connection with or near a coal mine. In the absence of
restrictive language, the Act encompasses all coal preparation facilities.
Although respondent raises various economic arguments against jurisdiction over its tipple, I cannot consider these matters in light of the plain
meaning of the statute and its legislative history. Additionally, since
respondent processes coal which crosses state lines, it operates a mine
whose products affect collh~erce. See Andrus v. P-Burg Coal Company, Inc.,
495 F. Supp. 82, 84 (S.D. Ind. 1980).
Testimony and Evidence

MSHA surface coal mine inspector, Lee Aslinger, confirmed that he visited
the Daysville Tipple on June 2, 1980, as part ~fa regular construction site
inspection. He stated that he had previously inspected the tipple on two
occasions prior to the time it went into full operation, and during the second
inspection, about 2 to 3 weeks before the tipple began to operate, he prepared
a list of potential violations and gave it to Mr. Tankersley, the owner of
United Minerals. Although it was just a representative sampling, he thought
the list would be helpful to Mr. Tankersley. Three weeks later, Mr. Aslinger
made an official inspection at which time he issued the citations in question
(Tr. 6-ll)o On cross-examination, Mr. Aslinger admitted that he had been
instructed by the respondent to prepare a list of everything required for compliance prior to the time the tipple went into operation and became energized
(Tro 17).
In response to bench questions, Mr. Aslinger clarified the nature of his
inspections, and stated that in both February and May 1980, he inspected the
construction site, at which time he was authorized to issue citations for violations in connection with health and safety during construction. Instead of
issuing citations, Mr. Aslinger gave the operator a list of potential violations (Tr. 18-22).

1281

Don A. McDaniel, MSHA coal mine electrical inspector, testified that he
conducted an electrical inspection at the tipple in May 1980, although the
tipple was not yet in operation. According to Mr. McDaniel's supervisor,
this was a courtesy inspection that had been requested by Mr. Tankersley, and
he noted that citations are not normally issued during courtesy inspections.
Although he did not prepare a written list, he remembered showing a mine
employee the violations his inspection had revealed. He could not recall
whether he had indicated the need for signs or fire extinguishers (Tr. 7377).
On cross-examination, Mr. McDaniel testified that none of the mine
employees had requested a list of the violations. Since the primary purpose
of his courtesy inspection was to check the electrical facilities and not to
look for potential fire hazards, he did not offer his opinion on the latter
issue, and he sensed a lack of interest on the part of the operator since
no one accompanied him during his inspection (Tr. 82-84).
Respondent examined Steve Hastings, an employee at the Daysville Tipple.
Mr. Hastings stated that Mr. Aslinger had been requested to give a complete
list of potential violations which he discovered during his courtesy inspection, but Mr. Hastings was not aware of whether Mr. McDaniel had provided a
list of electrical violations (Tr. 95-101).
Citation No. 985423
This citation states that "the entire length of the conveyor was not
visible from the starting switch and a positive audible or visible warning
system was not installed to warn persons that conveyors will be started."
Inspector Aslinger confirmed that he issued the above citation on
June 12, 1980, because the conveyor belt was not equipped with an audible
alarm to warn others when it was being started. He explained that the belt
operator is located in an electrical installa~~n about 5 to 6 feet below
ground lever. Since this facility is covered entirely with tin and has
no windows, it is impossible for the operator to know whether there is an
employee doing work on the conveyor belt. He believed that an employee who
is working on the equipment when the control switches are energized, might
suffer a permanent or fatal injury.
Although Mr. Aslinger observed no one working on the conveyor belt, he
saw grease guns and shovels in the area and concluded that employees had
been working on the belt at some earlier time. He also testified that
Mr. Tankersley abated the violation by installing an audible alarm. system
within the 8-day compliance period (Tr. 6-17). On cross-examination,
Mr. Aslinger could not remember whether the conveyor belt had been started
on the day the citation was issued (Tr. 17).
In response to bench questions, Mr. Aslinger stated that he could not
remember discussing the requirement of an audible warning device at his construction site inspections in February and May. He used a diagram to explain

1282

the location of the electrical control station in relation to the conveyor
belt, and stated that at the point where the on~off switch was located, the
operator could not see what was going on at the conveyor belt. The control
switches activated the five different belts in the tipple, and it was possible
for all the conveyor belts to be energized at one time. He then stated that
although it only took two people to operate the conveyot and move the coal
onto the belt, he had seen as many as four people around the belt at a given
time. He testified that the operator abated the violation by installing a
bell-type alarm which rang when the machine was started (Tr. 27-34, ALJ
Exh. 1).
Steve Hastings testified that the standard procedure, before starting
the conveyor belt, was to call out each man's name and wait for a response.
Additionally, there were guards on the belt to keep people from getting hurt
(Tr. 97-98). Mr. Hastings stated that he had asked the inspector to explain
the requirement of an audible alarm. He told the inspector about their
method of calling out the names of each worker, but that the inspector was
not satisfied-that this method would work (Tr. 110-111).
Citation No. 985424
This citation states that "a suitable danger sign was not posted at the
major electrical installation at this surface facility."
Inspector Aslinger confirmed that he issued this citation when he
noticed that there was not a suitable danger sign posted at the major electrical installation facility. He was concerned that this presented a danger
to both the employees and the people living in the family dwellings •located
within 100 yards of the facility. He had seen children playing near the
homes nearby, and he noted that there was nothing to keep them out. Since
there was no fence enclosing the area, intruders could come in and not be
aware of the electrical hazards. He reasoned that this presented a danger
of electrical shock. The building was not ~o~~d, and the only evidence of
it being an electrical establishment was the wires entering it (Tr. 38-41).
On cross-examination, the inspector admitted that the switchboxes have signs
stating "Danger High Voltage" (Tr. 49).
Don McDaniel, testified that the tipple had a major electrical installation which presented a danger because it was made of tin and contained
switchboxes on one side. Altfiough he did not remember observing a danger
sign, he believed that one stating that the building contained energized
power should be required (Tr. 77-78).
Steve Hastings testified that all electrical switchboxes have a tag on
them stating their size and also a sign indicating the possible danger. He
explained that the electrical building is locked whenever the tipple is closed
and that only the enployees are allowed in the facility when it is open. He
had never seen any children playing around the tipple. Furthermore, he had
received instructions requiring him to tell children and visitors to leave
(Tr. 98-101).

Citation No. 985425
This citation states that "fire extinguishers were not provided for the
permanent electrical ips~allation at this surface facility."
Inspector Aslinger testified that he issued this citation because there
were no fire extinguishers at the electrical installation. Since the
building had wooden floors and contained combustible materials, the lack of
visible fire extinguishers presented a danger. He noted that there was also
grease, lubricants, and coal dust present in the facility, and observed two
employees entering the building. He also maintained that Mr. Tankersley was
aware of the requirement, since 2-1/2 to 3 years earlier, he had issued a citation for the same violation at another tipple owned by Mr. Tankersley. The
present citation was abated by installing a fire extinguisher (Tr. 51-57).
On cross-examination, Mr. Aslinger stated that he could not remember
listing the need for a fire extinguisher during his previous personal inspections (Tr. 58-59). In response to bench questions, Mr. Aslinger testified
that he issued this citation based upon his observations of the facility's
needs. He noted that it took only one large fire extinguisher to abate the
violation (Tr. 61).
Don McDaniel testified that an inspector uses certain reference books
to determine the various standards and requirements for fire extinguishers.
These books include definitions of potential fire hazards, and they also
instruct the inspector on the size and type required and the distance at
which the fire extinguisher should be located (Tr. 78-81). On crossexamination, Mr. McDaniel indicated that the size and type of the fire
extinguisher depended upon its distance from the electrical installa~ion
building (Tr. 84-85).
Steve Hastings testified that there was a fire extinguisher located on
the end loader which was usually parked wi~hi-ti'20 feet from the electrical
house. He stated that his instructions were to allow the building to burn
if it caught on fire. If someone was inside, however, he would try to get
them out of the building (Tr. 95-96). On cross-examination, Mr. Hastings·
stated that there were three fire extinguishers within 20 feet of the electrical operation. He admitted that one was located on a service truck which
was used during the day for running errands or picking up fuel. The other
two were on a portable drilI and a front-end loader (Tr. 101-106). He also
stated that the service truck usually stays in one place because it contains
their tools. It is always parked in the same place and rarely leaves the
site (Tr. 110).
In response to bench questions, Mr. Hastings could not remember
whether he told the inspector about the fire extinguisher on the service
truck. He stated that he though that the standard required that the fire
extinguisher be located in the building and not 20 feet away (Tr. 111-112).
Upon recall, Mr. Aslinger testified that he observed the service truck
parked about 80 to 100 feet from the tipple's electrical facility, but noted

128~

that it moved from one part of the job site to ~nother. He observed the
front-end loader, about 150 to 200 feet from the electrical installation,
picking up bumper rails in the woodland. At the time he issued the citation,
it was more than 20 feet from the electrical facility. The core drill was
located about 250 to 300·feet from the building, and he observed no fire
extinguisher within 20 feet of the electrical building (Tr. 116-120).
Findings and Conclusions
Fact of Violations
Citation No. 985423
30 C.F.R. § 77.1607 requires that "when the entire length of the conveyor is not visible from the starting switch, a positive audible or visible
warning system shall be installed and operated to warn persons that the conveyor will be started."
Petitioner's evidence establishes that the electrical control station
was 5 to 6 feet below ground level and that the operator controlling the
switches in the station could not see whether someone was working on the
conveyor belt. Although respondent's witness t~stified that the practice
at the tipple was to call out each man's name before starting the conveyor
belt, I find that this type of warning is inadequate. The safety standard
requires that an audible or visible warning system be installed and respondent offered no evidence that it had installed a proper system. Accordingly,
the citation is AFFIRNED.
Citation No. 985424
30 C.F.R. § 77 .511 requires that "suitable danger signs shall be posted
at all major electrical installations."
The evidence and testimony presented establishes that there was not a
suitable danger sign at the electrical facility. Testimony established that
the electrical facility was made of tin and contained energized power, and
the only warning of a possible danger were the tags on the switchboxes which
alerted the reader to the danger of high voltage. Upon considering the
testimony of the inspector that there was no fence enclosing the facility
and that the tipple was near. a residential neighborhood, I find that the
tags on the switchboxes were not a "suitable danger sign." Although respondentvs wintess stated that he had been instructed to keep all children and
visitors-off the tipple grounds, this statement of company policy is no
defense to the violation, and the citation is AFFIR11ED.
Citation No. 985425
30 C.F .R. § 77 .1109(d) states that "fire extinguishers shall be provided
at permanent electrical installations commensurate with the potential fire

t ~

........ ,...,

8 ,,
t

hazard at such installation in accordance with the recommendations of the
National Fire Protection Association."
Testimony by the inspector revealed that the electrical building had
wooden floors and presented a potential fire hazard since it contained grease,
lubricants and other combustible materials. Having found this testimony to
be credible, I also find that this type of facility requires that a fire
extinguisher be available in both a permanent and accessible location. While
evidence disclosed that there were three fire extinguishers which were usually
located within 20 feet of the electrical operation, it was clear that they
were not affixed in a permanent position. Respondent's witness indicated that
one was. located on a· service truck, another on a portable drill, and a third
on a front-end loader. Since each of these machines is either mobile or
portable, I must conclude that the machines containing the fire extinguishers
could possibly move to an inaccessible distance from the electrical installation. Respondent's argument that the service truck had to stay in one place
because it held the workers' tools was contradicted by the witness' statement
that this same truck was used during the day for running errands or picking
up fuel. I find, therefore, that a preponderance of the evidence indicates
that a fire extinguisher was not provided for the permanent electrical
installation in question~ and this citation is AFFIRMED.
Good Faith Compliance
I find that abatement of the above citations was achieved in good faith
within the time fixed and extended by the inspector. Petitioner indicates
that the operator made a conscientious effort to achieve rapid compliance
on two of the violations and should be given credit for its effort. I have
considered this in assessing the civil penalties in this case.
Gravity
The lack of an audible warning device -for~the conveyor belt suggests a
possibility of serious injury if someone were working on the equipment when
the control switches were energized. But since respondent offered evidence
of an alternative warning system in that each man's name was called before
the system was turned on, I find the seriousness of this violation to be
somewhat mitigated. Additionally, although the inspector claimed to.have
seen as many as four people a~ound the belt at a given time, respondent's
witness testified that there were guards on the belt which decreased the
probability of harm. I conclude that this violation was nonserious.
I find that the absence of a sign warning of the danger at the major
electrical facility to be a nonserious violation. As noted by the inspector,
electrical wires entering the building were visible from the exterior of the
building. Host employees would be aware of the power contained in the
building. Moreover, although the inspector observed children playing in
the area outside the tipple grounds, testimony revealed that it was unlikely
that they would be found in or around the facility. The electrical building
was locked when the tipple was closed and employees had been instructed to

keep out all children and visitors. Therefore, the probability of an injury
due to electrical shock was not great.
I find that the absence of a fire extinguisher in or near the permanent
electrical installation was serious. I agree with petitioner's contention
that there was a likelihood of injury to one or more persons if there were a
sudden fire. Mitigating the seriousness of this violation is the evidence of
three fire extinguishers which were usually located near the building. The
probability of a fire is reduced, thereby lessening the degree of gravity.
Negligence
In evaluating the degree of negligence on the part of the operator, I
have carefully considered the effect of the preoperation inspections conducted in February and May of 1980. Inspector Aslinger admitted that he had
been instructed to give a list of everything required for compliance prior
to the time the tipple went into operation. Mr. Hastings confirmed that this
request had been made. Electrical inspector McDaniel's testimony also indicates that the operator attempted to comply with all safety requirements,
and he stated that he had been requested by Mr. Tankersley to make a courtesy
inspection in May of 1980. He could not recall whether he mentioned the need
for either signs or fire extinguishers. While Mr. McDaniel claimed that his
primary purpose was to check the electrical facilities, it seems reasonable
that he should have warned Mr. Tankersley of the need for signs indicating
a potential electrical danger or the need for a fire extinguisher where a
fire hazard existed.
Although an operator is presumed to know the law, I find that the operator reasonably relied on the inspector's prepared list and Mr. McDaniel's
courtesy inspection, and that the respondent was attempting to comply with
the law in that he requested these inspections and specifically asked for a
list.
Weighing against a finding of no negligence based on reasonable reliance
is the fact that this operator had owned another tipple for some time. Inspect or Aslinger testified that Mr. Tankersley should have been aware of the fire
extinguisher requirement since he issued a citation for the same violation at
his other tipple about 2 to 3 years earlier. Therefore, upon balancing the
operator's past experience with his reasonable reliance on the courtesy
inspections~ I find a low degree of negligence on the part of the respondent,
but conclude that they all resulted from ordinary negligence in that respondent failed to exercise reasonable care to prevent the cited conditions.
History of Prior Violations
The parties stipulated that this was a new operation and the operator
had no history of prior violations, and I have considered this fact in
assessing the civil penalties in this case.

1287

Size of Business and Effect of Penalties on Respondent's Ability to Remain
in Business
The parties stipulated that the respondent is a small operator and that
any civil penalties imposed will not adversely affect respondent's ability to
remain in business. I adopt this as my finding on this·issue.
Penalty Assessment
On the basis of the foregoing findings and conclusions, I find that the
following penalties proposed by the petitioner are reasonable and appropriate,
and I adopt them as the civil penalties assessed by me as follows:
Citation No.

Date

30 C.F.R. Section

Penalty

985423
985424
985425

6/12/80
6/12/80
6/12/80

77.1607(bb)
77 .511
77.1109(d)

$30

14
52

ORDER
Respondent is ORDERED to pay civil penalties in the amount of $96 for
the citations which have been affirmed in this case and payment is to be
made to MSHA within thirty (30) days of the date of this decision and order.
Upon receipt of payment, this matter is DISMISSED.

~

-·""
//~"'71/
&'~
"!-~-;{;eorg~A~

Koutr s
Administrative Law Judge

Distribution:
Carole H. Fernandez, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, Nashville, TN 37203 (Certified Mail)
N. F. Tankersley, United Minerals, P.O. Box 525, Crossville, TN 38555
(Certified Mail)

1288

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYl.INE, 10th FLOOR
5203 LEESBURG PIKE
FAL:LS CHURCH, VIRGINIA 22041

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

HAY 15 1981

Civil Penalty Proceeding
Docket No. SE 80~121
A/O No. Ol-00322-03044F

v.

Maxine Mine

ALABAMA BY-PRODUCTS CORP.,
Respondent
DECISION
Appearances:

Murray A. Battles, Esq., Qffice of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama, for
Petitioner, MSHA;
H. Thomas Wells, Jr., Esq., Cabaniss, Johnston, Gardner,
Dumas and O'Neal, Birmingham, Alabama, for Respondent,
Alabama By-Products Corporation.

Before:

Judge Merlin

This case is a petition for the assessment of a civil penalty filed
by the Government against Alabama By-Products Corporation. A hearing
was held on April 14, 1981.
At the hearing, the parties agreed to the following stipulation~
(Tr. 4-5):
(1)

The operator is the owner and operator of the subject

mine.
(2) The operator and the mine are subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977.
(3)

I have jurisdiction over this case.

(4) The inspector who issued the subject citation was a
duly authorized representative of the Secretary.
(5) A true and correct copy of the subject citation was
served upon the operator.
(6)

The alleged violation was abated in good faith.

(7) The imposition of a penalty will not affect the operator's
ability to continue in business.

128B

(8)

The operator's history of previous violations is average.

(9) Witnesses who testify are accepted generally as experts
in coal mine health and safety.
At the hearing, documentary exhibits were received and witnesses
testified on behalf of MSHA and the operator (Tr. 9-165). At the
conclusion of the taking of evidence, the parties waived the filing
of written briefs and agreed to make oral argument and have a decision
rendered from the bench (Tr. 165). A decision was rendered from the
bench setting forth findings, conclusions, and determinations with
respect to the alleged violation (Tr. 183-187).

BENCH DECISION
This case is a petition for the assessment of a civil penalty
for an alleged violation of 30 C.F.R. 75.202, which provides in
pertinent part as follows: "Loose roof and overhanging or loose
faces and ribs shall be taken down or supported."
The essential facts are not in dispute. They are set forth
in the MSHA Report of Investigation admitted into the record as
Government Exhibit No. 2. The operator was engaged in retreat
mining. The roof control plan and the pillar control plan were
being complied with. The pillar being mined out was at the
intersection of a "brushed" entry, which was 6-1/2 feet to 8 feet
high and of a crosscut, which was low coal of about 3-1/2 feet.
After the third cut had been started in the pillar, the ventilation man sounded an area to the right outby side of the continuous
mining machine whereupon a piece of rock fell from that area on
the cable of the continuous mining machine, knocking out the
power from the machine (see the drawing in Government Exhibit
No. 2), The operator then began removal of the fallen material.
At the hearing today, the parties have stipulated that in
addition to the facts set forth in the Report of Investigation,
the continuous miner operator after the first fall tested an
area immediately inby and adjacent thereto and that this second
area was sound. The second area was rib rock, which had a pronounced curvature. It was part rib, part roof, and part corner.
However, shortly afterwards, this second area of rock also fell,
killing the section electrician, who was standing beneath it.
It is undisputed that the section foreman told the electrician
and the other men not to go on that side of the continuous mining
machine and that in so doing the electrician disobeyed orders
which he had received only ITloments before.
MSHA's allegation of a violation is predicated upon the
assertion that under the mandatory standard, the area of the
second rock fall should have been taken down or supported.

Since this area had just been tested and found sound, the Solicitor
has not contended at the hearing today that this rib rock was
loose, although previously his answer to one of the operator's
written interrogatories appears to be that the roof fell because
it was loose. The Solicitor has main~ained throughout that the
area was overhanging and that therefore, under the mandatory
standard, it should have been taken down or supported.
For present purposes, I assume that the rock rib is within
the definition of the mandatory standard. The principle issue
is whether under the circumstances presented this area wa$ required
to be taken down or supported in accordance with the mandatory
standard. The section foreman's testimony that before the second
area fell the operator tried to pry it down but was unsuccessful
is uncontradicted and I accept it. MSHA's mining engineer testified that timbers could have been set under this rib rock. The
operator's section foreman testified that he considered timbering
and discussed it with the pin man. However, according to the
section foreman, because of the curvature of the arch, timbers
could not be set straight and therefore, would not serve as
support. Moreover, the section foreman stated that if the area
fell, the timbers themselves would create an additional hazard
by throwing the rock even further with the timbers also being
thrown. The section foreman 1 s testimony was corr.oborated by
that of the pin man. After much consideration of the matter,
I accept the operator's evidence regarding timbering.
The section foreman also testified that he consulted with
the pin man about roof bolting and that this, too, was not feasible
because the bolter would be exposed under roof without canopy
protection due to the curvature. I also accept this testimony.
Finally, the possibility was discussed that the rib rock
could have been shot down. Both the section foreman and MSHA's
engineer agreed that this approach created the danger that a great
deal of rock, indeed much more than was intended, might come down.
Also, the hole for such a shot would have to be drilled by an
individual standing on the continuous mining machine and the
powder would have to be put in the hole by an individual either
standing on the machine or standing in an unprotected location.
In each of the foregoing instances, the proposed solution
equal to if not greater than those presented
by the original condition. I conclude that 75.202 requires that
loose roof and overhanging or loose faces and ribs be taken down
or supported, where the taking down or support would not create
greater hazards to life and limb than already exist. Here the
risks presented by the proposed solutions are higher than those
presented by the situation itself. The cure cannot be worse than
the illness. Accordingly, I cannot find that a violation exists.
present~ hazards

This is of course, not an easy case. I recognize that a life
was lost. However, I cannot interpret the subject mandatory standard
to impose more dangers to life and limb than would exist without
it. I cannot interpret this mandatory standard to require the
operator to do things which would jeopardize even more lives than
the one that was lost. It may be that in view of the situation
presented, the operator should have removed all personnel from the
section forthwith. But this consideration does not fall within the
stated mandatory standard which is all that is before me.
The petition is DISMISSED.
ORDER
The foregoing bench decision is hereb;.f-'AFFIRMED.
The petition to assess a civil penalty in the above-captioned
proceeding is DISMISSED.

Paul ~1erlin
Assistant Chief Administrative Law Judge
Distribution:
Murray A. Battles, Esq., Office of the Solicitor, U.S. Department
of Labor, 1929 9th Ave. South, Birmingham, AL 35256 (Certified
Mail)
H. Thomas Wells, Jr., Esq., Cabaniss, Johnston, Gardner, Dumas &
O'Neal, 1900 First Ntl. Southern Natural Bldg., Birmingham, AL
35203 (Certified Mail)

1292

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

MAY 26 1981

Civil Penalty Proceedings

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

Docket No. LAKE 80-336-M
A.C. No. 11-01599-05005

v.
Docket No. LAKE 80-337-M
A.C. No. 11-01599-050061

OZARK-MAHONING COMPANY,
Respondent

Barnett Mine
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois, for Petitioner;
M. L. Hahn, Safety and Industrial Relations Director, and
Victor Evans, Superintendent of Mining, Ozark-Mahoning Company,
Rosiclare, Illinois, for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

These proceedings were filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter MSHA) under section llO(i) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.A. § 820(a), to assess civil
. penalties against Ozark-Mahoning Company for violations of mandatory standards. Upon completion of prehearing requirements, a hearing was held in
Evansville, Indiana on February 25, 1981. MSHA Inspector Dennis Haeuber,
George W. Winters, and Louis English testified on behalf of MSHA. Frank
Golden, Kenneth Clanton, and Tom Dowling testified on behalf of OzarkMahoning. Both parties filed posthearing briefs.
ISSUES
Whether Ozark-Mahoning violated the Act or regulations as charged by
MSHA and, if so, the amount of the civil penalties which should be assessed.
APPLICABLE LAW
30 C.F.R. § 57.4-69 provides as follows: "Mandatory. Approved mine
rescue apparatus shall be properly maintained for immediate use. The
equipment shall be tested at least once a month and records kept of the
tests."

30 C.F.R. § 57.15-5 provides as follows! "Mandatory. Safety belts
and lines shall be worn when men work where there is danger of falling; a
second person shall tend the lifeline when bins, tanks, or other dangerous
areas are entered."
Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent
part as follows:
In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated
good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
STIPULATIONS
The parties stipulated the following:
1. The Federal Mine Safety and Health Review Commission has jurisdiction over this matter.
2.

Ozark-Mahoning is a subsidiary of Pennwalt Corporation.

3.

Ozark-Mahoning operates a mine called the Barnett Mine.

4. The Barnett Mine is located two miles west of the junction of
Routes 146 and 34 in Rosiclare, Pope County, Illinois.
5. There are approximately fourteen (14) to seventeen (17) men employed
at the Barnett Mine.
6.

The annual hours worked are 35,000.

7. The parties have agreed that George Winters, an employee of OzarkMahoning, did suffer an accident on February 7, 1980, while working at the
Barnett Mine.
8. An investigation of this accident was made on February 13 and 14,
1980, by Mine Safety and Health Administration Inspectors Jack Lester and
Dennis Haeuber.
9.

Citation No. 366117 was issued at the time of the inspection.

10.

Barnett Mine is an underground mine.

11.

Flourspar is the product mined.

12. Approximately ten (10) McCAA's were not operable at the Barnett
Mine at the time the citation was written.
MOTION TO APPROVE SETTLEMENT CONCERNING CITATION NO. 365457
At the commencement of the hearing, the parties moved for an order
approving a settlement concerning Citation No. 365457. That citation alleged
the violation of 30 C.F.R. § 57.6-20(e) in that the metal door on the explosive's magazine was not electrically bonded to the existing ground rods.
MSHA initially proposed a civil penalty in the amount of $26. The parties
requested approval of a settlement of this violation in the amount of $15
because the magazine was located in a remote area and if detonation were to
occur, injury would have been improbable since no employees were exposed to
injury. Considering the above statements and the criteria contained in
section llO(i) of the Act, the motion to approve this settlement in the
amount of $15 is granted.
CITATION NO. 366115
Citation No. 366115 was issued on February 14, 1980, to Ozark-Mahoning
for violation of 30 C.F.R. § 57.4-69. The cit•tion alleged that records
were not available to indicate any inspection or maintenance on the ten McCaa
self-contained breathing apparatus kept at the mine and the last recorded
inspection of the devices was in 1972.
The evidence established that seven miners at the Barnett Mine were
killed in 1971 due to exposure to hydrogen sulfide gas. The undisputed evidence established that at all times relevant to this proceeding, the Barnett
Mine was affiliated with a central mine rescue station and the mine was not
required to maintain its own rescue station. Ozark-Mahoning conceded that
the apparatus in question was not maintained or tested as required by the
regulation and that there were no records of any tests.
MSHA asserts that because Ozark-Mahoning kept the mine rescue apparatus
at its mine~ it was required to maintain and test them and keep records of
the tests. MSHA further contends that the lack of maintenance could have
resulted in the use of defective equipment in an emergency situation causing
the death of miners at the work site.
Ozark-Mahoning contends that since it was not required to maintain a
mine rescue station at this mine, the storage of defective equipment does
not violate the Act or regulation. It further claims that the mere presence
of the defective equipment did not present any hazard to the miners because
the defects in the equipment would be immediately evident to any trained
person who attempted to use it and, hence, the equipment would not have been
used.
I have considered the evidence and arguments of the parties. Although
Ozark-Mahoning was not required to have the mine rescue equipment at the

Barnett Mine because of its affiliation with a central mine rescue station,
the fact that it elected to keep the 10 McCaa self-contained breathing
apparatus at the mine imposed upon it the duty to maintain and test the
equipment as required by 30 C.F.R. § 57.4-69. I find this situation to be
analogous to the law of negligence where although a person has no duty to
act, if he does act, he may be liable for any affirmative acts which make
the situation worse. See Prosser, Law of Torts, § 54 (3d ed. 1964). In the
instant matter, MSHA correctly asserts that the mere presence of defective
equipment may result in additional deaths or injuries if such equipment is
used in an emergency. In an emergency, persons untrained in the use of this
apparatus might attempt to use it. Moreover, a miner's attempt to use the
defective equipment may delay notification to the central mine rescue station.
Hence, where a mine operator is not required to maintain its own mine rescue
station but chooses to keep mine rescue apparatus at its facility, such
apparatus must be maintained and tested according to the requirements of
30 C.F.R. § 57.4-69. Accordingly, I find. that Ozark-Mahoning's failure to
maintain and test the 10 McCaa self-contained breathing apparatus violated
30 C.F.R. § 57.4-69.
CITATION NO. 366117
Citation No. 366117 was issued on February 14, 1980, to Ozark-Mahoning
for violation of 30 C.F.R. § 57.15-5. The ~itation alleged that a lost time
accident occurred when a timberman fell 23 feet down an open manway and that
no safety belt was provided.
The undisputed evidence shows that George Winters, a timberman, suffered
a broken leg and other injuries on February 7, 1980, as a result of a 23 foot
fall through an open manway.
Prior to the accident, Winters and two other
miners where attempting to land a set of timber being hoisted. OzarkMahoning' s foreman, Kenneth Clanton, was present and operating the controls
of the slusher. After the timber, which was approximately 17 feet long and
weighed about 300 pounds, had been hoisted, Winters walked over to a point
2 to 3 feet away from the uncovered 36 by 40 inch manway. The timber struck
Winters in the
and he fell through the open manway. Winters sustained
serious injuries and has not returned to work.
MSHA asserts that Ozark-Mahoning violated 30 C.F.R. § 57.15-5 in that
the operator permitted a miner to work at approximately 2 to 3 feet away from
a 36 by 40 inch hole where there was a danger of falling. While the regulation in issue requires the use of safety belts and lines when men work where
there is a danger of falling, no such safety belts or safety lines were
provided.
Ozark-Mahoning contends that it did not violate the regulation because
of the following: (1) Winters did not fall and there was no real danger
of anyone falling; (2) the use of safety belts while timbering is not normal
industry practice; (3) Winters placed himself in an unsafe position in violation of specific orders to the contrary; (4) MSHA cited the wrong regulation in the citation.

1~9h

The undisputed evidence establishes that, at the time of the accident,
a miner was standing approximately 2 to 3 feet away from an open manway
measuring 36 by 40 inches. There was a drop of 23 feet from the manway to
the surf ace below. Timber was being hoisted through the manway by use of a
slusher operated by the foreman. The foreman had an unobstructed view of
the area. The timber swung and struck Winters causing .him to fall or be
knocked into the manway. No safety belts or safety lines were provided by
Ozark-Mahoning.
The regulation requires the use of safety belts or safety lines "when
men work where there is a danger of falling." The evidence establishes that
there is a danger of falling when a person is working 2 to 3 feet from a
36 by 40 inch opening and the surface is 23 feet below. Ozark-Mahoning's
foreman and assistant mine foreman concluded that it was possible for anyone
working 2 to 3 feet from such opening to loose his balance and fall through
the opening.
Whether Winters fell through the open manway or was struck by the timber
and knocked into it is irrelevant to this proceeding. The fact is that he
was working in close proximity to the opening and there was a real danger of
falling. Although Foreman Clanton had an unobstructed view of the, area while
operating the slusher, he took no action to remove Winters from the place
where there was a danger of falling. Although Foreman Clanton contended that
he told Winters to stay out of the way of the timber, Winters could not
recall such an instruction. At the hearing, it was evident that Winters had
a hearing problem and Foreman Clanton admitted that Winters had had trouble
hearing directions on prior occasions. The ~vidence on behalf of OzarkMahoning fails to establish that Winters' actions prior to this occurrence
were either an aberration or could not be prevented.
Ozark-Mahoning contends that the use of safety belts or lines is not
industry practice, would not have prevented Winters' injuries, and would be
impracticable. Suffice it to say that safety belts or lines would not be
required in timbering if all miners were positioned so that they were not in
danger of falling. However, where, as here, a miner is in a position where
he is in danger of falling, such a device must be furnished. The evidence
establishes that Ozark-Mahoning violated 30 C.F.R. § 57.15-5 as alleged by
MSHA. While Ozark-Mahoning may also have been in violation of 30 C.F.R.
§ 57.16-9, which provides that men shall stay clear of suspended loads~ it is
irrelevant to this proceeding since no violation of that standard was charged
by MSHA.
ASSESSMENT OF CIVIL PENALTIES
In asessing a civil penalty, the six criteria set forth in section
llO(i) of the Act shall be considered. As pertinent here, Ozark-Mahoning's
prior history of 14 violations in the previous 2 years is noted. The
assessment of civil penalties herein will not affect the operator's ability
to continue in business.

1297

CITATION NO. 366115

'
Ozark-Mahoning did not abate the violation cited within
the time
allowed. Subsequently, an order of withdrawal was issued to have the
apparatus removed from the mine.
In assessing the negligence of Ozark-Mahoning Company, it is also noted
that on May 19, 1978, Ozark-Mahoning was cited for a violation of the
identical regulation as established in Citation No. 366115 and paid a $72
civil penalty. Hence, Ozark-Mahoning knew or should have known of its duty
to maintain and test mine rescue apparatus and record those tests. I conclude that Ozark-Mahoning is chargeable with ordinary negligence.
As noted above, Ozark-Mahoning was not required to have mine rescue
apparatus at this mine because it was affiliated with a central mine rescue
station. However, the fact that it had such equipment in defective condition
could compound the hazard in the following ways: (1) The McCaas would be
used in an emergency with possibly fatal results; and (2) false reliance upon
the existence of the McCaas at the mine site might delay notification of the
central mine rescue station. I conclude that the gravity of this violation
is serious.
Based upon all of the evidence of record and the criteria set forth in
section llO(i) of the Act, I conclude that a civil penalty of $400 should be
imposed for the violation found to have occurred.
CITATION NO. 366117
Ozark-Mahoning demonstrated good faith compliance after notification of
the violation.
The accident involving George Winters occured in the presence of OzarkMahoning' s foreman, Kenneth Clanton. Foreman Clanton saw Winters move to a
position in close proximity to the open manway and took no action to remove
Winters from the position where he was in danger of falling or to supply
Winters with a safety belt or line. Thus, Ozark-Mahoning is chargeable with
ordinary negligence in connection with this citation.
While the potential injury arising out of a fall is very serious, the
likelihood of this occurring is lessened by the fact that men do not
ordinarily work where they are exposed to the danger of falling. The manway
is usually covered. Here, it was open for the purpose of hoisting timber.
Moreover, even if Winters did not hear the instruction of his foreman, he
should have been aware of the existence of the open manway when he entered
the area. No other miner was exposed to this hazard. Considering all of the
above factors, I conclude that the gravity of this violation was serious.
Based upon all the evidence of record and the criteria set forth in
section llO(i) of the Act, I conclude that a civil penalty of $1,250 should
be imposed for the violation found to have occurred.

ORDER
WHEREFORE IT IS ORDERED that Respondent Ozark-Mahoning pay civil penalties within 30 d·ays for the violations as follows:
Citation No.

Regulation

365457
366115
366117

30 C.F.R. § 57.4-69
30 C.F.R. § 57.15-5

30 C.F.R.

§

57.6-20(e)

Civil Penalty

$
15.00
$ 400.00
$1,250.00

-~• A. Laurens~Judge
Distribution Certified Mail:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor,
230 South Dearborn St., Chicago, IL 60604
M. L. Hahn and Victor Evans, Ozark-Mahoning Company, Rosiclare,
IL 62982

129H

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

Contest of Citations

ASARCO, INC. ,
Contestant

Docket No. SE 80-125-RM
Citation No. 108670; 7/24/80

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

Docket No. SE 80-126-RM
Citation No. 108671; 7/24/80
New Market Mine Unit
DECISIONS

Appearances:

William 0. Hart, Esquire, New York, New York, for the
Contestant; Leo J. McGinn, Attorney, U.S. Department of
Labor, Arlington, Virginia, for the Respondent.

Before:

Judge Koutras
Statement of the Case

These proceedings concern two consolidated contests filed by the
contestant pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977, challenging two section 104(a) citations served
on the contestant by an MSHA mine inspector on July 24, 1980, citing
the contestant for two alleged violations of the mandatory noise standards
set forth in 30 CFR 57,5-SO(b). Contestant denied that it exceeded
the required noise level standards in question and asserted that
assuming that the cited noise levels exceeded the standards it nonetheless
denies that the citations were "significant and substantial", denies
that feasible engineering or administrative controls exist to reduce
the employee exposure to noise, and contests the length of time fixed
by the inspector for abatement of the citations.
Respondent MSHA filed a timely answer to the contests and a hearing
was convened in Knoxville, Tennessee on March 11, 1981, and the parties
appeared and participated therein. Post-hearing briefs were filed by
the parties and the arguments therein have been fully considered by me
in the course of these decisions.
Issues
The issues presented in these proceedings include the following:
(1) whether the conditions or practices cited by the inspector on the
face of the citations constituted violations of the cited mandatory

standard; (2) whether feasible engineering or administrative controls
existed for the abatement of the asserted noise exposure levels described
in the citations for the abatement of the citations; (3) whether the
alleged violations were "significant and substantial" violations within
the meaning of the Act; and (4) whether the citations were properly
issued in accordance with the Act.
Applicable Statutory and Regulatory Provis~ons
1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164,
effective March 9, 1978, 30 U.S.C. 801 et ~·
2.

Mandatory standard 30 CFR 57.5-50, provides as follows:
(a) No employee shall be
be permitted an exposure to noise in excess of
that specified in the table below. Noise level
measurements shall be made using a sound level
meter meeting specifications for type 2 meters
contained in American National Standards
Institute (ANSI) Standard SL 4-1971. "General
Purpose Sound Level Meters," approved April 27,
1971, which is hereby incorporated by reference
and made a part hereof, or by a dosimeter with
similar accuracy. This publication may be ob~
tained from the American National Standards Institute,
Inc., 1430 Broadway, New York, New York 10018, or
may be examined in any Metal and Nonmetal Mine
Health and Safety District or Subdistrict Office
of the Mine Safety and Health Administration.
PERMISSIBLE NOISE EXPOSURES
Sound level
dBA, slow
response

Duration per day,
hours of exposure
8. (' ,•
6. .

90

I>

92

4.
3. •
2o

o

o

o

o

<>

o

o

1-1/2 . • . • • • • •
1. . •.

1/2. •
1/ 4 or less . .

"

<>

95
97
100
102
105
110
115

No exposure shall exceed 115 dBA. Impact or
impulsive noises shall not exceed 140 dB, peak
sound pressure level.

NOTE. When the daily exposure is composed
of two or more periods of noise exposure at
different levels, their combined effect shall be
considered rather than the individual effect of
each.
If the sum

exceeds unity, then the mixed expo.sure shall be
considered to exceed the permissible exposure
Cn indicates the total time of exposure at a
specified noise level, and Tn indicates the total
time of exposure permitted at that level.
Interpolation between tabulated values may be
determined by the following formula:
log T = 6.322 - 0.0602 SL
Where T is the time in hours and SL is the
sould level in dBA.
(b) When employees' exposure exceeds that
listed in the above table, feasible administrative or engineering controls shall be utilized.
If such controls fail to reduce exposure to
within permissible levels, personal protection
equipment shall be provided and used to reduce
sound levels to within the levels of the table.
Discussion
Both of the citations in this proceeding were issued pursuant to
section 104(a:) of the Act on July 24, 1980, by MSHA Inspector Thurman
E, Worth, and the conditions or practices which Mr. Worth believed
were in violation of mandatory standard 30 CFR 57.5-50(b), are described
on the face of the citations as follows:
Citation No. 108670 (Docket SE 80-125-RM)
The full-shift exposure to mixed noise levels of the
secondary crusher operator exceeded unity (100%) by
2.46 times (246%) as measured with a dosimeter. This
is equivalent to an 8-hour exposure to 96.5 dba. Personnel (sic) hearing protection was being worn.
Recognized engineering noise controls for secondary
crusher such as those listed in the attached document
"Engineering Noise Controls Guidelines for Metal and
Nonmetal Mine Inspectors," or other industry known
controls were not being used and had not been tried by
the mine operator.

130~

Citation No. 108671 (Docket SE 80-126-RM)
The full-shift exposure to mixed noise levels of the
Ball Mill.operator exceeded unity (100%) by 2.01 times
{201%) as measured with a dosimeter. This is equivalent
to an 8-hour exposure to 95 dba. Personal hearing
protection was being worn. Recognized engineeri~g noise
controls for Ball Mills such as those listed in the
attached document "Engineering Noise Controls Guidelines
for Metal and Nonmetal Mine Inspectors," or other
industry known controls were not being used and had not
been tried by the mine operator.
MSHA's Testimony and Evidence ~ Docket No. SE 125-RM
MSHA Inspector Thurmond E. Worth, testified that he had over 16
years experience in the mining industry before joining MSHA in 1976,
including employment with ASARCO. He is currently employed as a health
inspector and stated that he was familiar with the mill in question,
and had visited in on one occasion prior to his inspection of July 24, 1980.
He described the building where the alleged noise violations took place
as a metal building built on a concrete floor, and he approximated the
dimensions as 80 feet long, 40 feet wide, and some 25 to 30 feet high.
The interior walls and ceiling are of metal construction. The structure
houses a primary screen, a secondary screen, three cone crushers,
and belt conveyors. Stone which is mined ,from an underground mine is
processed in the building after being transported from a surge pile by
conveyor belts into the crusher where it is reduced to smaller particles,
processed through a secondary screen and there stored in bins according
to product size. The building consists of three levels, and the source
of the noise in the building is from the primary and secondary screens,
as well as from the stone itself as it is transported and processed
through the various chutes (Tr. 8-13).
Mr. Worth confirmed that he took his noise readings with instruments
in the normal fashion and thatthe results indicated DBA readings of 96.5.
The instrument readings were taken in the secondary crusher operator's
work area, and at the specific location where he performs the greater
part of his work. He confirmed that it was essential to know where an
operator is located during the day and what his work duties are in order
to relate to the test results. Although other individuals may travel
through the building, the operator is essentially alone in the building
during the course of the work day and he is assighed there for his entire
eight-hour work shift.
Mr. Worth stated that based on his observations on the day he issued
the citation, the operator's duties entailed checking the primary screen
and crushers to insure that they are operating properly, insuring that
the belts are functioning properly, and monitoring certain amp_guages to

insure that certain electrical motors are not overloaded. The monitoring
of the guages is a continual process and the operator is positioned some
ten feet away from the primary screen when this is done. The remaining
equipment checks are conducted periodically while the operator makes his
equipment inspection rounds,. and while he is in transit to check the silos
to insure that they are not full. He described the manner in which these
inspections are conducted visually by the operator while walking around
the various equipment locations inside the buiiding a~ well as outside
where several conveyor belts feeding the stone from the surge pile are
located. He estimated that it would take an operator approximately
20 minutes to perform one complete inspection round of all of the equipment,
and upon completion of this round the operator would return and position
himself on a "grease barrel" from where he would continue to monitor
certain amp guages located approximately five feet from his seated
position on the barrel. Mr. Worth estimated that the operator would
remain at this location for approximately 45 minutes before beginning
another inspection tour, and under normal operating conditions and absent
any problems, the entire process would be repeated again every hour during
the shift. In summary, Mr. Worth estimqted that the operator would be
walking around for approximately 20 minutes during any hour observing
the equipment, and would remain by the barrel observing guages for the
remaining approximate 40 minutes of any hour (Tr. 13-19).
Mr. Worth testified that it was his opinion that feasible administrative or engineering controls could be implemented to reduce the noise
levels and bring the building into question into compliance with the
cited noise standard, andhe defined the term "feasible" as anything which
is "reasonably possible" (Tr. 19). He. believed that the most obvious
option available to mine management would be the installation of a
soundproof booth which could be constructed from two-by-four's and plywood,
and insulated inside with accoustical tile insulation. He indicated
that he made these suggestions to mine management. The purpose of the
booth would be to house the operator while he is at the location by the
barrel monitoring the amp guages, and he could monitor the guages by
simply looking out of a window enclosure from inside the booth. Another
option would be to place the guages inside the booth, and he believed
that the operator would still be able to observe the bigger part of his
operation from inside the booth and that his visibility would be the
same as if he were sitting on the barrel (Tr. 20-22).
,Mr. Worth expressed his opinion that installing a booth and requiring
the operator to stay in it while he is monitoring the amp guages would
not in any way irhibit the performance of his job. He also expressed
an 09inion that placing the operator in a booth for approximately 40
minutes of each working shift hour would result in a reduction of his
exposure to noise below 90 dba, and in support of his opinion testified
as follows (Tr. 23-24):

Q. Did you perform any calculations to arrive at
that, or what would be the basis on which you would
testify to that?
A.

The time span.

Q.

The time span?

A. The time span inside the booth. He can be exposed to
95 DBA for four hours. All right, that is half a shift. He
could spend, say, six hours in the booth, then that would cut
his DBA reading down to below 90, so he would be in compliance.

Q. Now, is it your opinion that a soundboo~h, then, would
work in this circumstance?
A.

Yes, sir.

Q. Both from a health standpoint, and from a standpoint
of his being able to achieve his job?
A.

Yes, sir.

Q.

Let me ask you this
JUDGE KOUTRAS:

Mr. McGinn, he hasn't finished.

THE WITNESS: I've had experience with a cement
plant that had almost identical equipment, and their
operator was over exposed, and they put in a soundproof booth. His exposure read 96 DBA. They put him
in a booth, and now his DBA is less than 90.
BY MR. MCGINN:

Q. Was this approximately the same type situation
that we have here?
A.

Approximately, yes.

And at pages 25.-26:

Q. So, it 1 s your opinion, then, that the use of
soundbooths in this instance would reduce the DBA under
the standard, is that right?
A.

Yes, sir.

Q.

Okay, now, you recommended the soundbooths, right?

A.

Yes, sir.

Q. Is that -- was that based upon -- what was that
opinion based upon?
A.

Past experience.

With respect to the feasibility of installing the type of soundproof booth that he reconunended, Mr. Worth's testimony is support of
his conclusion that the installation of the type of soundproof booth
recommended by him is feasible is as follows (Tr. 24-25):

Q. Now, as to the matter of soundbooths being feasible,
you have experience in inspecting other plants of the same
type or similar type, is that correct?
A.

Yes.

Q.

For instance, what types of other plants do you
inspect which would be essentially the same activity
and same physical setup?
A. I have a cement plant. They don't have the floatation
operation that ASARCO does, but essentially everything else
is the same.

Q. Now, and you're aware of other plants of the
industry -- do you have any knowledge of other plants throughout the industry which are faced with approximately the same
situation, as far as noise goes? Are you aware of any other -is this industry wide concern?
A. Not of floatation plants and this type thing, but
our quarries have crushers, and screen houses, and they put
their men in booths and have no problem with it whatsoever.

Q. Now, would it be your opinion that this soundbooth
that we've been talking about, is a highly unusual or a fairly
normal practice throughout the industry in combating excessive
noise?
A.

It's a normal practice.

Q.

Have you seen soundbooths installed in other plants?

A.

Yes.

Q.

Could you name a few for us?

A. American Limestone has booths for their crusher operators.
General•Portland Cement has booths for their ball mills and rod
mill operators. Vulcan Materials have booths for their crusher
people. Nellie and Haden have booths for their crusher people.
Nalley and Gibson, they have crusher booths for their operators.
Adams Stone, Jenkins, Kentucky, they have booths for their
operators.

•

130fi

Q. Are all these operations within this district
or sub-district?
A.

Yes, sir.

Q. Do you know -- are these readily available, these
soundbooths, which you described?
A. You can buy them, or the easiest way would be to
build one. They're not that expensive to build.

Q. Are they commercially available, is what I really
mean, for the industry? Are there companies which produce
accoustical soundbooths of this type?
A.

Yes, sir, they are.

Mr. Worth testified that the costs for sound proof booths range
from $300 to $4,000, depending on size and that it can be constructed
as previously described by him. As for alternative means of reducing
the noise levels, he stated "There's all kinds of insulating routes
they can go in (sic) they want to", but he opted to recommend a booth
because he believed it would be the easiest and cheapest method of achieving
compliance (Tr. 26).
In response to my questions as to the procedures he used for testing
the individual operator's noise exposure, Mr. Worth explained as follows
(Tr. 29-33):

Q. How did you arrive at the equivalent -- you stated
in your citation that this is an equivalent to an eight-hour
exposure. That leads me to believe that someone could be
tested for under eight hours and with a computation, you come
up with an eight-hour equivalent.
A.

Yes, sir.

Q.

What is that?

A. We take a dosemeter reading and it reads out into
a percentage and it's averaged out over eight hours. It
records nothing less than 90 DBA. So at the end of eight hours,
we have a chart that breaks the percentage down into an average
of exposure for the eight-hour period.

Q. All right, let me ask you this now: you said you hung
the dosemeter on the operator. What specifically -- did you
attach it to his body physically?
A. Yes, sir, I put it in a pocket and the microphone
on his shoulder.

1307

Q.

And you left?

A. Well, I was there on the property all day. I made
periodic checks and sound level readings and this type thing.

Q. All right, so this thing is attached to this individual
and then, theoretically, he's supposed to wear it. for his entire
shift?
A.

Right.

Q.

Which is an eight-hour shift?

A.

Yes, sir.

Q. So I take it while he was doing what he has to do there
as a crusher operator, monitoring, sitting on the barrel and
wandering around the plant and doing his job, this piece of equipment is attached to his body?
A.

Yes, sir.

Q. And you're doing whatever inspection work you had to
do in the mine -A.

Yes, sir.

Q.

-- and you would come back periodically?

A.

Yes, sir.

Q. Would you take readings?
come back?

What would you do when you'd

Ao I'd check to see if he was having any problems wearing
his equipment and take sound level readings.

Q. What if this fellow takes it off and stashes it somewhere while you're gone and puts it back on again, how do you
know that?
A.

Well, I wouldn't have any way of knowing it unless I
him on a -- on a check as I come through.

Q. Is there any way that -- are there any procedures for
monitoring this device while you're off doing your other inspection
duties?
A.

No, sir.

t •)
'JO'·
_.._
(\

Q. What would be the effect if this fellow took this
device off and stashed it somewhere while you were gone, what
would -- how would that affect it? What I'm trying to arrive at-at what point in time during an eight-hour shift do you check the
dosemeter for a noise reading and how do you arrive at 96.5 DBA
out there? How many times do you look at this device over an
eight-hour period?
A. We only check it, read it out, at the end of a shift
but we visually -- visibly check it to see that he still has it
on and this type thing.

Q. Okay. You also indicated that the noise sources were
from the falling stone, screen and the crusher; is that correct?
A.

Yes, sir.

Q. Are there any other sources of noise in this particular
building where this individual is stationed?
A.

No, sir.

Q. How do you determine the different noise levels from the
stone and the crusher or from the screen or does it make any
difference? What type of noise are you monitoring in that
building? Are you monitoring the falling stone, the conveyor
belts, the crushers or are you just monitoring all noises or a
combination?
A.

We're monitoring all noise that he's exposed to.

Q.

All noise?

A.

Yes, sir.

****
In response to further questions from MSHA's counsel, Mr. Worth
stated that he had never before tested the crusher operator in question,
and he indicated that he explained the purpose of the dosemeter to him.
Mr. Worth could not recall whether the operator advised him that he had
previously been tested and asked him no questions. The operator did
not explain his duties to Mr. Worth, and Mr. Worth reiterated that his
opinion as to what those duties are is "based on experience and his job
classification" (Tr. 35). Mr. Worth indicated that the duties of a
secondary crusher operator in a mill such as the one in question would
be essentially the same for each day. In response to questions as to
how often he would return during a normal sampling cycle on a shift,
Mr. Worth stated (Tr'. 36-38):

l~OH

Q. Now, after you once put the measuring equipment on a man,
do you return at different times furing the shift; is that correct?
A.

Yes, sir.

Q. Approximately how often do you return during a normal
sampling procedure?
A.

Usually we try to get back once an hour if possible.

Q.

Do you recall in this instance how often you got back?

A.

No, sir, I don't.

Q. What do you do when you come back, for noise now?
What did you do in this instance when you came back?
A. I checked him to see that the microphone was still in
the right place and he still had it on his person.
Q. When you come back, do you also take sound level
measurements?

A.

Yes, sir, I do.

Q.

What's the purpose of that?

A. That's to check and be sure that I have the right
exposure of percentages on my dosemeter whenever I read it out.
It's to keep check on the dosemeter.

Q.

How do you take your sound level readings?

A.

I

arm's
120 DBA 1 s.

just have a sound level meter and hold it out ·at
and take a reading off of it every -- up to

Q. Now, can you state specifically about how many times
you came back to check on the, equipment during this shift?
A.

Not specifically, no, sir, I can 1 t.

Q. Do you recall the different areas in which you met him
to take your
and to check your equipment?
A. Yes, sir, I met him at -- in his work area which is
where he sit and monitored the amp guages and then I saw him
to the silos as I was coming over to the building to check on him
during the day. I saw him out on the outside on a walkway
going to the surge tunnel and his checks of his equipment during
the day.

Q. At the end of the sampling time, you remove the equipment
from him; is that correct?
A.

Yes.

Q.

Did you have any conversation with him at that time?

A. No, sir. I told him that I appreciated him wearing
it for me. Thanked him.

Q. Did he indicate there was anything abnormal in his work
activities that day?
A.

No, sir, he didn't.

Q. Again, the question really is about your estimation about
the time involved in these various tasks. Again, you testified
earlier that you estimated it.to be about 20 minutes per hour of
him walking around and about 40 minutes of an hour sitting in one
area stationary, checking and monitoring the electrical -A.

Yes, sir.

Q.

Do you still stand by that?

A.

I do.

Q.

Again, what is your basis for that time frame?

A. Well, observing the job that he has to do. Barring trouble,
he just physically walks around and checks the conveyor belts and
then sits and monitors the amp guages.

Q. So in your opinion, knowing his job classification, is the
monitoring or the walking around inspection the more primary,
more essential time of his tasks?
A. Monitoring his amp guages to keep from burning up a
50 hoursepower motor.

Q. So would there be greater danger in his being away
from the monitoring position than at other times or -A. Oh, sure, sure, because you never know when a crusher
is going to stop up or a motor is going to short out or what.

Q.

What does he do if such a situation should occur?

A.

He shuts the equipment down.

Q.

What is the purpose of shutting it down immediately?

A. So it won't do further damage to the motor or crusher
or the other equipment that's involved.
On cross-examination, Mr. Worth conceded that he was not with the
crusher operator during the entire eight hour shift for which he was
tested, and the reason that he was not was that he had to make other
inspection rounds through the mills. He stated that he was at the location in question "off and on, periodically, all day", and he determined
that an inspection round by the crusher operator took approximately 20
minutes through actual observation and he explained this by stating
"I could observe him from my rounds going through the plant". He
testified as follows in support of his conclusion concerning this
issue (Tr. 27-28):

Q. Is this from discussing it with the employee or
your actual observation?
A.

Actual observation.

Q. How long were you there at a given time?
for an hour at any time?

Were you there

A. Oh, it would vary. I might be there 30 minutes.
be there an hour, may be there two hours.

I may

Q. But you didn't conduct a time study or anything? I mean,
in other words, it was just kind of hit and miss so far as what
the employee was doing?
A.

I had a dosemeter on him which is run for eight hours.

Q. Right, but as far as what the employee was doing as far
as making rounds or sitting around, you're really speculating;
are you not?
A. Well, observing him and his work habits.
observed.

Q.

But you werenit there for eight hours?

A.

No, but

That's what I

Q. I'm just saying you've kind of made a categorical statement
that you think he made rounds for 25 minutes every hour and I was
wondering how you concluded that if you were there and off at
various times.
A. Well, knowing the job, I estimated the time and -- and
I feel it's a reasonable time.

Q. You estimated it based on knowing the job.
know the job?

How do you

A. I visibly observed what his job was as he went through
his procedure.

Q.

But you were there and then off elsewhere at various

times?

A.

Yes.

Q~

So it was very much an estimate?

A.

Yes, sir.

Mr. Worth testified further that he was aware of the fact that
one of the mines mentioned by him as having sound booths installed, namely
American Limestone, is a subsidiary of ASARCO (Tr. 29). He confirmed
•that while he triesto go back to check on an operator once every hour
during a testing cycle, he did not know whether he did that in this case
and did not know whether he was present for an hour at any given time
or precisely how long he would have been present since he did not time
himself. His conclusions concerning the time spent by the crusher
operator on various tasks are based on wh~t he believed to be his job
tasks and through his personal observations, which he conceded were never
even for an hour (Tr. 39). He further explained his position as follows
(Tr. 39-41):

Q. Well, I'm just wondering how you can come up with a
conclusion that the man sits still for 40 minutes and walks
for 20 minutes if you weren't there for even an hour at any
given time or you don't even know if you were. How does one
conclude that?
A.

Based on his job that he had to do.

Q.

And how do you know what his job is?

A.

Because I observed him doing it.

Q. But never even for an hour at any given time as far
as you know?
A.

No.

Q. And it's your testimony that as far as you understand,
his job of monitoring the guages is the most important aspect of
his job?
'
A.

In my opinion, it would be.

Q.

And your opinion is based on what?

') 1',-<
.1,\. •)

A.

Experience.

Q.

Experience in a mill like this?

A. No, ·I have no experience -- experience in mills. I
have experience in inspecting in every operation that we have,
their primary job is to monitor amp guages so they won't burn up
overload their motors and burn them up.
·

Q. Do you know sitting where he does, do you know if he can
see the ore bins?
A.

No, he can't see where they're pouring on.

Q.

Can he see the feeders under the surge pile?

A.

No, sir.

Q.

Can he see the conveyor belts on the east and the west

A.

He can see part of it, but he can't see all of it, no.

side?

Q. C. n he see the ore transfer chute on the east side
of the buEding?
A.

I don't know.

Docket No. SE 80-126-RM
I_nspector Worth confirmed that he issued citation no. 108671,
described the building where the Ball Mill operator was working, and
described the procedures and equipment utilized in the processing of
materials in the building. He stated that there is one operator on duty
in the building, that he put the noise measuring device on him at
7:11 a.m., and left to conduct additional inspections. He returned
periodically during the day but could not recall how often. However, he
indicated that he usually tries to get back once every hour. Mr. Worth
stated that he took sound level readings, and on his return observed the
operator at different places in the building such as the walking between
the ball mills, taking samples at the location where the mills feed
out the ground material, and standing next to a control panel. He stated
that he was "not that familiar" with the duties and functions of the
ball mill operator, but arrived at his conclusions concerning those
duties by observing him taking samples and monitoring the amp guages from
a seat or box which he sits on. However, Mr. Worth could not recall
whether he ever observed the operator seated, and he was of the opinion
that the operator can position himself in such a way as to facilitate
the monitoring of the amp guages as well as keeping an eye on the feeder

belt. As for the taking of the samples, Mr. Worth could not state how
often this was done, but estimated that one sample an hour would be
taken by the operator, and that this would take about five minutes,
and he indicated that the operator would have no reason to go outside
of the building (Tr. 43-50).
Inspector Worth testified that he believed it was feasible to reduce
the noise levels and that he recommended the installation of a soundbooth. Based on his understanding of the duties of the operator through
his observations, he believed that the operator could perform his duties
of checking and monitoring of the guages and the belts from inside a
soundbooth, and that this would reduce his noise exposure to well below
90 dba's. He also indicated that he recommended the use of a soundbooth
to mine management, and was told that their employees could not work
in booths. Mr. Worth also indicated that other mine operators have used
soundbooths, that they were readily available and moderately inexpensive,
and that they have been recommended to him during his training or in
reading literature on the subject (Tr. 50-52).
On cross-examination, Mr. Worth conceded that he was "not that familiar"
with the duties of a ball mill operator, that he could not recall whether
the operator was ever seated during his observations, and that his previous
testimony that the operator took materials samples once every hour was
an assumption on his part. He also conceded that he did not speak with
the operator himself to determine what his duties were, and he (Worth)
could not recall whether he was ever present observing the operator for
as much as an hour at any one time, nor could he recall how often
he returned from his other inspection rounds to actually observe the ball
mill operator makes his rounds (Tr. 52-54).
Inspector Worth concluded his direct testimony as follows (Tr. 54):

Q. With all that lack of knowledge, you nevertheless
concluded how often he could sit at that given seat and stay
in a given place rather than move around and perform his job?
A.

No, I didnvt stay with him.

Q.

You really don 1 t know?

A.

No, sir, I don 1 t know.

MR. HART:

I have no further questions.

JUDGE KOUTRAS:
MR. MCGINN:

Do you have anything further, Mr. McGinn?

No.

In response to questions from the bench, Inspector Worth testified
that the operators in question were wearing Dupont dosemeters during his

testing, and that the secondary crusher was wearing an EAR brand earplug,
while the ball mill operator was wearing an ACU-FIT earplug. However,
he stated that he had no way of knowing how effective these devices
were in terms of reducing any existing noise levels (Tr. 55). He stated
that the contestant has never tried any other industry known noise
controls other than earplugs, that he did not discuss the use of booths
with the two individual employee operators who were cited, and that
they made no comments concerning the effectiveness of .the earplugs other
than it was company policy that they be worn. He could not recall
any complaints by the employees with respect to the use of the earplugs,
and while he alluded to the fact that a mine operator was required to
test its own employees for exposure to noise, he did not know how often
this was done and stated "we really don't enforce it that heavy" (Tr. 56).
He reiterated that the contestant's position was that its employees could
not work in control booths (Tr. 57-58).
Inspector Worth testified that there was no way to sample an employee
wearing plugs to determine whether he was in compliance with the noise
exposure levels while wearing the plugs. As long as a mine operator
has done all that he could in terms. of administrative or engineering
controls, he would not issue citations for noncompliance as long as the
earplugs are worn (Tr. 61).
James Gardy, MSHA Health Specialist, testified as to his background
and experience in mining, and stated that his present duties are those
of a health inspector in underground mines and the crushed stone industry.
He stated that he was familiar with contestant's mining operation and
that he has inspected similar mills and crushers. With regard to his
familiarity with the job classifications of a secondary crusher operator
and ball mill operator, .he stated that he was "vaguely familiar with
those classifications" but "couldn't go into detail as to exactly what
they do" (Tr. 66). Based on his experience and knowledge of operations
similar to those of the contestant, Mr. Gardy was of the opinion that
soundbooths are a feasible way for reducing the noise level dba's (Tr. 67).
Booths may be constructed from inexpensive building materials and they
are also available for purchase commercially throughout the industry. He
believed that reductions in noise levels could be achieved below 90
dba's if a person remained in a booth for just two hours out of an eight
hour shift. The longer one remained in the booth, more significant
reduction in noise levels would result, He later stated that "I'd
have to run calculations, but I would say they would probably reduce it
to 90·or below" (Tr. 69),
Mr. Gardy testified that he has observed noise booths installed
in a plant si~ilar to that of the contestant's and named several of those
plants in Kentucky and Tennessee. However, he qualified his testimony
in this regard as follows (Tr. 69):
Now, I'm speaking about primary crusher operators
where a guy is stationary. He doesn't have to move around
too much.

Q. So is it your testimony then that use of the sound
control booth is your basic, primary -- in other words, is
that what you would look at before you would look at anything
else?
A. Well, if the man was stationary. If he didn't move
around a lot. If his one job is in this one area the biggest
part of the day, that is usually the answer.
Mr. Gardy was of the opinion that feasible controls are available
to reduce noise levels, and as examples he referred to building barricades
or enclosing the machinery. He also stated that it would depend on the
particular situation and also stated "I'm not familiar with the one
Mr. Worth testified about" (Tr. 70). He also believed that the use of
earplugs is a temporary measure and that proper hearing conservation
programs are the best methods at solving noise problems. Based on the
testimony presented concerning the citations in question, he was of the
opinion that the type of controls available would likely bring about
compliance in these cases (Tr. 72).
On cross-examination, Mr. Gardy testified that he was not aware
of any mills such as those operated by the contestant that have sound booths
installed, and he indicated as follows (Tr. 72):

Q. You cited a number of companies that have installed
similar to this and as I picked it up, most of them were
stone type operations. Do you know of a single operation
for lack of a better name, I'm talking about a metal type mill
that has one of these things installed?
A.

No.

Q.

You don't know?

A. I can't specify a single company thatvs got a mill
like yours because I'm not familiar with your mill. I don't
know exactly what you have out there, but I am familiar with
crushers and conveyor belts and screens.
And, at pages 74-75:

Q, (By Mr. Hart) So basically, but you do not know
of a metal type mill that's installed one of these; you're
talking about a quarry type situation, is that correct?
A. Quarries and the underground mines I've inspected out
West, yes, all over.
Q.

You've never seen the mill we're discussing?

1317

A.

No, sir, I haven't.

Q. You testified just vaguely that there are other types
of engineering controls such as barricades, enclosures, etcertera?
A.

Yes.

Q. How could you testify to the feasibility of that in
a mill you've never seen? I mean, you really don't know what
A. Well, I've seen other, other mills where they put
cu:i:tains, lead shield curtains between the noise source and
the employee. I've seen where they've enclosed the machinery
completely.

Q.

Aren't all mills different?

A.

To what extent?

Q. I mean, can you just sit there and come up with
general engineering types things and say it would solve the
problem
A.

Q.

For noise, yes, sir.
and say it would apply?

A.

Yes, sir.

Q.

You can say that?

A.

yes, sir.

Qo For noiseo

Do you have an engineering degree?

Ao

No, sir, I don 1 to

Q.

You're not an industrial engineer?

A.

I'm not an expert, noo

Q. You were talking about whether we had an audiometric
program of sorts. Are you aware that we have an industrial
hygiene department of 40 industrial hygienists in the company?
Ao

Here at the Knoxville operation?

Q.

In Salt Lake, but it operates for all --

A.

No, sir, I didn't.

Q.

You don't know whether we have an audiogram department?

A.

No, sir, I do not.

Mr. Gardy believed that with the use of a soundbooth, placing an
individual in it for two hours during a shift would lower the dba exposure
to 90 or below. However, he conceded that he had made no calculations
to support this conclusion (Tr. 76).
Contestant's Testimony and Evidence
Samuel D. Lawrence, Assistant Mill Superintendent, testified that he
is a graduate engineer with a degree in mineral process engineering from
the Montana School of Mines, and that he has worked in various mills
throughout the United States. His responsibilities at the mill in question
include maintenance and metallurgical controls and he is faimilar with
the job functions of the two mill operators who were cited by MSHA in
these proceedings. In his opinion, they cannot perform their job in a
soundbooth (Tr. 83-85). He described the duties of the secondary crusher
operator, and they include the checking of meters, chute blockage or
damage, damaged screens, extraneous materials in the product being
processed, etc. In his view, if the operator were sitting in a soundbooth, by the time any damage or problem was detected, the system would
have to be shut down for repairs. Mr. Lawrence believed that the operator
has to be mobile in order to perform his functions because his job is
one that requires him to be mo~ing the majority of his time to visually
and physically inspect all of the machine components, namely, three
crushers and two screens. In addition, the operator is also responsible
for cleaning up any spillage each shift. The monitoring of the guages
is critical during the start-up phase of the operation, but once the
system is stablilized, a visual glance is all that is required, and the
remaining time spent by the operator is the physical and visual checking
of belts, motors, machinery, and oil levels. He also indicated that
from the location of the seat where the operator may sit, he cannot
observe the entire system, and is unable to check conveyor belts, worn
idlers, or pulleys, nor can he check for required maintenance which may
occur and which could be taken care of while the system is operational.
The primary function of the crusher operator is to insure that the mill
is functioning properly and that no major damage will occur. If it
does, the mill will have to shut down and production is thereby interrupted.
He believes the operator has to be constantly mobile in order to perform
his job properly and effectively (Tr. 85-88).
With
to the duties of the ball mill operator, Hr. Lawrence
testified that once the critical start-up is achieved, his primary
function is to periodically, on an hourly basis, go through the mill
and take samples of the materials being processed. He explained the
sampling process and stated it cannot be done effectively with the
operator enclosed in a booth. He also indicated that the operator must

1319

visually inspect the cyclone, take care of any minor problems which may
be detected before they result in major items, and that he must also
check motor bearings and grease them manually. These duties require
constant mobility by the operator. He also stated that cyclone underflows
and overflows cannot be visually observed from inside a booth, and they
require visual monitoring, including the taking of cyclone samples at
four or five locations. The sampling time for each sample takes about
five minutes for each location, and possibly ten minutes to make a grind
determination (Tr. 88-91).
Mr. Lawrence testified that the contestant has attempted to control
noise at one of its other mills, and that the mill is similar to the one
in question in these proceedings. He stated that contestant has expended
$135,000 at the Young Mill, and that this has resulted in reducing the
noise levels one or two decibels. He conceded that it was possible that
compliance could be achieved with the use of sound booths, but maintained
that the operators could not perform their job tasks from such booth
(Tr. 92). Mr. Lawrence stated further that the use of booths in at
least one other plant was for the purpose of protecting the operator
from the weather rather than for reduction of the noise exposure (Tr. 94).
On cross-examination, Mr. Lawrence stated that it was his view
that the operators in question were required to be in motion the majority
of their work time in order to perform their job tasks properly. He also
indicated that he has spent a complete
hour shift with these individuals,
and in his opinion they could not remain in the booth for as long as
an hour each shift and still do their jobs properly. He reiterated the duties
that he believed were required of the two operators in question, and
indicated that he has explored the possibility of using rubber liners
to reduce the noise levels, but found that they were very expensive and
were short lived. (Tr. 95-102). In response to bench questions, Mr. Lawrence
testified that since the time he has been employed at the mill
no previous citations for exc,eeding the noise levels had ever been issued
. 108).
Ivan Campbell, testified that he is an electrical engineer and
has a
from the University of Colorado. His experience includes
the installation and maintenance of both mechanical and electrical
equipment, and that he is responsible for contestant's Tennessee mines.
He stated that he was familiar with the citations which were issued in
these cases and is familiar with the job duties of the cited operators.
In his view the operators could not satisfactorily perform their jobs
if
were enclosed in booths for any ten to fifteen minutes each hour
of their shifts. He explained the duties required of the operators in
ion, and emphasized the fact that
are required to be mobile
and to walk around checking out the entire system. He detailed each
of' the duties required by the
in question, and expressed
the opinion that they were required to be continually in motion or moving
around to properly perform their job tasks (Tr. 111-117). Mr. Campbell
alluded to the expenditure of $135,000 by the contestant in an effort
by the contestant to reduce the noise levels, short of installing booths,
but stated that he was not directly involved in the program (Tr. 117).

Harold F. Thompson testified that he is a graduate geologist from
the University of Colorado and that he has been involved in safety matters
for the past 30 years. His job with the contestant concerns safety
matters for the entire Tennessee Mines Division. He stated that he was
familiar with the soundbooths utilized by American Limestone Company,
one of the examples cited by the inspector, and he characterized the
booths as "operator shacks" to protect the employees from the weather.
He also stated that they were constructed from wood, operated with the
doors open, and were not soundproof (Tr. 125). He also stated that the
contestant has a hearing program which includes the use of earplugs
as well as the use of audiometric technicians who examine employees for
hearing problems. In addition, he referred to the fact that employees are
given
choice of wearing three protective ear devices, and that annual
noise surveys are made by the company, including the use of noise meters
at various locations for the purpose of reducing noise exposure, all of
which is paid for by the company.

a

Mr. Thompson was of the opinion that it would require an employee
to spend four hours in a soundbooth in order to reduce his noise exposure
from 95.dba's to 90 dba's. He also indicated that since the existing
attempts to reduce the noise levels at the Young Mill have not resulted
in any significant changes they were not used at the New Market Mill
(Tr. 128).
On cross-examination, Mr. Thompson conceded that he was aware of
the fact that the noise exposure for the operators in question were as
stated in the citations, namely 96.5 and 95 dba's, and that is the reason
they were required to wear personal ear protection devices (Tr. 128).
He believed that compliance was being achieved through the use of these
devices, and he did not believe that additional considerations are needed
because it was his view that additional measures are not feasible (Tr. 130).
He indicated that feasibility measures have been an on-going project
for the past five years in attempts to find solutions at the mill in question.
In his view, additional expenditures are not feasible because operators
cannot function from a soundbooth (Tr. 131). He also alluded to the
fact that the problems have been discussed among company management as well
as with Inspector Worth, and that in his view feasible controls of noise
are not available, except through the use of earplugs (Tr. 131-133).
Mr. Thompson alluded to several specific methods considered for
reducing noise, including enclosing the crusher from the rest of the
building, use of rubber screens, moving the filter vacuum pump outside
another building, insulating the walls of the building, relocating the
flotation filter pump blower outside the building, and installing
insulation barriers around the crushers (Tr. 134).
Findings and Conclusions
The contestant in these proceedings has been charged with two
violations of the noise exposure requirements of mandatory standard

30 CFR 57.5-50(b), for exceeding the noise exposure levels for two of
its employees, namely, a secondary crusher operator and a ball mill
operator. In addition to the charges that the dBA exposures exceeded
those levels required to be maintained by the cited standard, the
citations also charge that the contestant was not using, and had not tried
to use, recognized engineering noise controls such as those listed in
certain guidelines contained in an April 8, 1977, p~blication used
by MSHA inspectors when evaluating noise violations in the metal and
nonmetal mining industry, or other industry known controls. Under the
circumstances, I believe it is clear that MSHA has the burden of proving
the fact that the noise exposure levels cited by the inspector were as
stated in the citations, as well as the burden of proving the fact that
feasible engineering controls are available for application by the
contestant at the mill sites in question so as to bring the two cited
employee operators into compliance with the required noise standard.
The so-called "recognized engineering noise controls" alluded to
by the inspector on the face of the citations which he issued are
incorporated in an MSHA document published April 8, 1977, entitled
Engineering Noise Control Guidelines for Metal and Nonmetal Mine Inspectors,
(exhibit ALJ-1), and pertinent introductory portions of that publication
state as follows:
These guidelines have been prepared for use by
Mining Enforcement and Safety Administration (MESA)
inspectors when evaluating
violations in the
metal and nonmetal mining industry. The engineering
controls listed have been taken from actual cases and
hence have been shown to be feasible and effective.
It is important to note, however, that these controls
must be considered on a case~by-case basis; not all
may be feasible for a specific machine type. This
consideration will require individual judgement by
the MESA inspector.
The mine operator must apply such noise controls as
are considered feasible, in the judgement of the
inspector, until noise levels are brought to within
permissible limits. The controls listed can be
applied in any order the mine operator chooses and
alternative control methods may be acceptable, The
inspector must judge whether or not a conscientious
effort was made by the mine operator in applying
engineering noise control methods. If in assessing
a noise violation, a MESA inspector determines that
additional assistance is necessary, the Noise Group
at either Pittsburgh or Denver Technical Support
Center should be contacted to evaluate the problem.

1322

If permissible limits of noise have not been obtained after all feasible control methods (including
administrative controls) have been instituted, then
adequate ear protection must continue to be used until
new control techniques become feasible.
(Emphasis supplied.)
The guidelines list surface crushers, screens, and chutes at page 14,
and the following methods of noise control are listed:
1.

Operator Booths
a.

Commercial. Operator booths can be purchased
as prefab units from various manufacturers.
Refer to attached "Buyer's Guide" from Sound
as Vibration Magazine.

b.

Upgrading Existing Booths. Upgrading consists
of adding acoustical material to interior roof
and walls, sealing openings, repairing and
sealing doors and windows, and isolation mounting.
Refer to attached "Buyer's Guide" from Sound
and Vibration Magazine.

c.

Fabricated. Operator booths can be constructed
using common building materials, and should be
acoustically treated as per "Upgrading."

2.

Rubber Screen Deckings.
various manufacturers.

Materials are available from

3.

Covered Screens. Dust control covers for screens may
be upgraded to act as acoustical enclosures.

4.

Enclosing Crushers and Screens. Crushers and screens
may be partially or totally enclosed.

5.

Chute Liners. Chutes can be lined at impact points
with resilient material. These materials and information concerning their wear characteristics are available
from various manufacturers or by contacting PTSC or DTSC.

Estimated Costs and Noise Reductions
1.

Operator Booths. Properly designed and installed
booths should result in noise levels at the operator's
position of less than 90 dBA; costs for booths will
range between $500 and $3,000.

2.

Rubber Screen Deckings and Chute Liners. Information as
to cost, life expectancy, effects on production, etc.
should be obtained from the manufacturer and should be
evaluated on a case-by-case basis.

The noise controls for ball mills are listed in the guidelines
at page 19, and they are as follows:
1.

Operator Booths
a.

Commercial. Operator booths can be purchased
as prefab units from various manufacturers.
Refer to attached "Buyer's Guide" from Sound
and Vibration Magazine.

b.

Upgrading Existing Booths. Upgrading consists
of adding acoustical material to interior roof
and walls, sealing openings, repairing and sealing
doors and windows, and isolation mounting. Refer
to attached "Buyer's Guide" from Sound and
Vibration Magazine.

c.

Fabricated. Operator booths can be constructed
using common building materials and should be
acoustically treated as per "Upgrading."

2.

Rubber Liners. Rubber liners are commercially available
from several manufacturers. Information as to life
expectancy, effects on production, etc., should be obtained from the manufacturer and should be evaulated
on a case-by-case basis.

3.

Enclosing Mills
a.

Full Enclosures. Full mill enclosures can be
fabricated or purchased as prefab units.

b.

Partial Enclosures. Partial enclosures for the
feed and discharge ends of mills can be fabricated
using common building materials.

Estimated Costs and Noise Reductions
1.

Operator Booths. Properly designed and installed
booths should result in noise levels at the operator's
position of less than 90 dBA; costs for booths will
range between $500 and $3,000.

2.

Rubber Liners. Information as to cost can be obtained
from the manufacturer. Noise reductions may range
between 3 and 7 dBA.

Included as a "Buyer's Guide", the guidelines contain a list of
manufacturers ·and suppliers of sound barrier systems, including acoustical
booths, and a selected bibliography of several noise control publications
and references.

The record adduced in these proceedings establishes the fact
that the two cited mill operators were wearing personal ear protection
devices. Further, it seems clear that Contestant does not dispute the
fact that the noise levels measured by the inspector in these proceedings
were above those permitted by the cited noise standard. Its defense
is based on subsection (b) of section 56.5-50, which states:
(b) When employees' exposure exceeds that listed
in the above table, feasible administration or
engineering controls shall be utilized. If such
controls fail to reduce exposure to within
permissible levels, personal protection equipment
shall be provided and used to reduce sound levels
to within the levels of the table.
Contestant takes the position that it is not feasible to place
the two mill operators in question in an acoustical sound booth because
the nature of their job tasks is such as to require them to constantly
move about the two buildings in which they are located so as to enable
them to monitor, inspect, and service all of the machinery and equipment for which they are responsible. Contestant asserts that placing
an operator in a soundbooth would not only restrict his mobility, but
would impair his visibility and would inhibit his ready access to the
equipment in the event of emergencies, and would unduly restrict his
ability to visually observe the entire area over which he has responsibility.
Further, contestant maintains that the mobility of the operators is
most essential to a safe and productive operation, and that isolating
the mill operators in a sound booth as suggested by MSHA would not only
jeopardize the efficient operation of its milling process, but would
result in a potential breakdown of its equipment and would result in the
shutting down of its operation for major repairs. In short, contestant's
position does not rest solely on the costs which may be incurred in
constructing or pu~chasing soundbooths, but is based on its belief
that the nat·ure of the work required to be done by the mill operators
in question simply does not lend itself to placing them in sound booths.
MSHA takes the position that soundbooths are in fact feasible noise
controls at the two mill sites in question and that the contestant
has not only failed to install them, but has not even made any attempts
to try them out. MSHA also takes the position that by following the
suggestions of its inspectors, the installation of soundbooths will
reduce the level of noise to which each operator is exposed and will
insure continued compliance with the requirements of the cited noise
regulation.
In its post-hearing brief, MSHA asserts that it has carried its
burden of establishing the fact that the noise exposure as measured by
its inspector for the secondary crusher operator and the ball mill
operator exceeded the permissible levels pursuant to the cited section
57.5-5-(b). In addition, MSHA argues that it has established that

feasible engineering or administrative controls are available to abate
the violations, and relies on the following in support of this conclusion:
1.

Inspector Worth's testimony regarding the construction
and layout of the two mill buildings in question, including
the types, locations, and functions of the machinery
involved, and the primary sources of noise affecting the
two employees in question.

2.

Inspector Worth's opinion and recommendations that the
installation of readily available acountical soundbooths
would reduce the noise exposure to the two employees cited.
MSHA asserts that the inspector's mining experience, coupled
with his observations of the two men in question at their
work locations support his conclusions that the installation
of soundbooths are available feasible administrative or
engineering controls readily available to the contestant
at minimal cost.

3.

Inspector Worth furnished the contestant with a copy of a
29 page booklet entitled'~ngineering Noise Control-Guidelines
for Metal and Nonmetal Mine Inspectors", which assertedly
describes a variety of proven methods based on actual cases,
for effective and feasible noise controls, including price lists
and available acoustical materials and equipment.

4.

Inspector Worth's opinion, based on his knowledge of similar
job classifications, and on his observations of the two
employees in question over the eight hour sampling shift,, that
a significant portion of the employees' workday could be spent
in a soundproof booth without impairing the accomplishment
of their routine duties, particularly since they could visually
monitor and observe the various machinery guages from inside
the booths.

S.

MSHA Health Specialist Gardy 1 s testimony that soundbooths
were readily available and were widely used throughout the
industry as a successful and economical method of reducing noise
levels in milling and crushing operations similar to those
conducted by the contestant.

In addition to the testimony presented by its inspectors, MSHA
argues that contestant 1 s testimony concerning the job requirements of
the two employees in question lacks credibility and "boggles the imagination".
MSHA also contends that the contestant has not only never attempted any
basic steps to abate the conditions cited, but has never even considered
any controls at the New Market Mine Unit, and has opted to rely on personal
ear protection as sufficient protection against noise. Finally, MSHA
points out that contestant's position concerning the use of soundbooths

is not founded on economic considerations, and that since contestant is
a very large corporation, MSHA believes that any of the basic controls
available would require relatively insignificant expenditures.
Contestant's New Market Mill Unit is a metal mine which mines
and processes zinc ore (Tr. 73-74). Contestant does not contest the
result of the inspector's noise level readings as stated on the face
of the citations issued in these proceedings, nor does it contest the
accuracy or veracity of those noise meter readings as testified to by
the inspector (Tr. 81). As a matter of fact, in its post-hearing
brief, contestant concedes that the results of its concurrent noise
samples were substantially the same as those taken by the inspector.
Further, contestant's arguments, as articulated by counsel in his brief,
rests on its assertion that MSHA not only failed to establish that sound
booths were feasible at the locations in question, but also failed to
establish that other feasible engineering controls do in fact exist.
Even though MESA's guidelines provide for several methods of reducing
noise exposure, the inspectors in these proceedings take the position that
the installation of soundbooths at the two mill sites in question here
will effectively solve any noise problems and will in fact facilitate
compliance. Under the circumstances, the critical question presented
is whether MSHA can suppo.rt its position in this regard by a preponderance
of the credible evidence that it has offered to prove its case.
A discussion and analysis of the evidence presented by both parties follows
below.
With regard to MSHA's reliance on the noise guidelines cited by
the inspector in the citations, and in particular the assertion that they
are based on actual cases and thus are proven feasible and effective
controls, MSHA conveniently omits the fact that the guidelines specifically
state that the recommended controls discussed in.that publication must
be considered on a <:'.ase-by-case b"asis·, that not all of the recommendations
may be feasible for a specific machine type, and that this consideration
will require individual judgment by the inspector. Since there are
many kinds of metals and nonmetals, it stands to reason that there are
many kinds or mills. Further, since I assume there are different methods
available to process the material being mined at any one mill site, this
diversity supports a conclusion that no two mills may be identical in
terms of the equipment, processes, and noise exposure. If this conclusion
is wrong, then I believe it is incumbent on MSHA to establish through
credible evidence that all mills are alike, and that the installation
of a workable soundbooth at some other mining operation supports its
position that it will work at the mill sites in question in these
proceedings.
It also occurs to me that the source of any particular noise in a
building which houses different kinds of equipment would be different,
and a noise supression device which is workable in one area from where
the noise source is located may not work in another area. It seems

clear to me that a dosimeter reading over 90 may not necessarily
mean that the individual worker is being overexposed to noise. From
my understanding of the requirements of the noise standard, the question
of whether an individual is overexposed to noise levels which may have
an adverse effect on his hearing mechanism is dependent upon the noise
exposure time. Therefore, the time that any individual worker spends at
any particular job task which exposes him to prolonged periods of excessive
noise becomes most critical to the question as to whether he is in or
out of compliance with the dBA requirements of the ~tandard. MSHA's
position seems to be·that since all mill operators perform the same job
tasks, isolating them in a sound booth for four hours during an eighthour work shift will automatically bring them within compliance. The
problem that I find with this rather simplistic approach is that MSHA's
conclusions are based on speculative conclusions and opinions which
are unsupported by any credible evidence.
Although MSHA's health specialist Gardy testified that he was
familiar with contestant's mining operations and had inspected similar
mills and crushers, he admitted that he had never even seen the New
Market Mill in question. With regard to his testimony that similar
operators had successfully installed soundbooths, he conceded that the
"similar" operators he had experience with were stone quarries and underground mines and that he knows of not one single metal mill which has
such booths installed. His inability to cite any metal mills like those
of the contestant to support his conclusion that soundbooths are feasible
is based on his candid admission on cross-examination that he was not
familiar with contestant ts mill and that he "did not know exactly what
you have out there" (Tr. 720). Further, while Mr. Gardy was of the opinion
that general engineering devices are available for all noise control,
he conceded that he was not an engineer, nor an expert. As a matter of
fact, he was not even aware of the fact that contestant had an audiometric
program, including an industrial hygiene department employing some 40
industrial hygienists. Finally, with respect to his conclusion that
ing an individual in a soundbooth for two hours during a shift would
lower his exposure to noise below the 90 dBA level, Mr. Gardy conceded
that he had made no calculations to support that conclusion (Tr. 76).
As a matter of fact, on direct examination, he conceded that his con~lusions
that soundbooths would reduce the noise exposure in these cases was
based on Inspector's Worth's testimony at the hearing, and even at that,
he stated that soundbooth's would likely bring about compliance (Tr. 72).
After careful consideration of Mr. Gardy's testimony, I have
concluded that it is of little value in support of MSHA's case.
Mr.
is to
unfamiliar with the mine site in question, has never
been there, did not know what was going on there, knows of no soundbooths ever being installed in a mill similar to the one in question, he
is not an expert, he never made any calculations to support his theory
that the use of soundbooths at the mill in question would achieve
compliance, and was unaware of contestant's noise control program.
In short, MSHA have have been better off in not calling him as a witness.

With regard to MSHA's assertion that the contestant has made no
attempts to control the noise exposure levels at the New Market Mine,
contestant's assistant mill superintendent'Lawrence testified that the
company has expended $i35,000 at the Young Mill, an operation similar
to the New Market Mine Unit, and that the noise levels have reduced one
or two decibels. He also alluded to the fact that consideration was given
to the use of rubber liners but that they were very expensive and did
not last long. These efforts were confirmed by Mr. Thompson, and he
testified that the contestant has an on-going hearing program staffed
by audiometric technicians who conduct hearing tests, annual noise
surveys, and employee examinations for the purpose of detecting hearing
problems. He also indicated that all employees are allowed to choose
from among three personal ear protection devices, and stated that several
methods for reducing noise have been considered, including the use of
rubber screens, insulating the walls of the buildings, enclosing the
crusher from the rest of the building, relocation of equipment, and
installing barriers around the crushers. Some of. these control measures
are included in MSHA's guidelines.
Contrary to MSHA's assertion that contestant has made no efforts
to reduce its noise exposure levels, I conclude that the testimony of
respondent's witnesses supports a finding that contestant has in fact
attempted to reduce its noise levels. As a matter of fact, the record
indicates that the expenditure of $135,000 has resulted in a reduction
of the noise exposure at a similar plant. However, contestant's reluctance
to use soundbooths obviously stems from its belief that the two employees
must be constantly mobile and cannot safetly and efficiently perform their
job tasks while isolated in a soundpooth for the periods of time indicated
by the inspectors. In response to the inspector's contentions that
soundbooths are in use at other similar plants, contestant's witnesses
indicated that these booths are not acoustical soundbooths, but simply
enclosures to protect employees from the weather.
In Hilo Coast Processing Companz v. Secretary of Labor, DENV 79-50-M·,
July 13, 1979, Commission Judge Moore vacated several citations after
finding that MSHA had failed to prove that certain engineering controls
recommended by inspector were technically and economically feasible.
Judge Hoare found that for the most part, MSHA's proof was based on
the unsupported personal judgments of the inspector who issued the
citations, and that the operator was left in the untenable position of
"guessing" as to what was required by the inspector for compliance.
In MSHA v. Callanan Industries, Inc., YORK 79-99-M, decided
January 12, 1981, Judge Melick vacated a noise citation after finding that
MSHA had failed to establish through any credible evidence that its
proposed noise controls were either economically or technologically
feasible.
After careful review and consideration of all of the testimony
and evidence adduced in these proceedings, I am not persuaded that MSHA
has established through any credible evidence that it is technologically

feasible to implement the recommendations of its inspectors at the mills
in question. MSHA's case is one based on broad speculative and theoretical
conclusions which have no sound factual or evidentiary support. In
short, it is based essentially on the subjective opinion of one inspector.
When viewed in light of the testimony and evidence presented by the
contestant, I ~imply can find no support ·for MSHA's position.
As indicated earlier, I have given little or no weight to the testimony
of Inspector Gardy. With regard to the testimony of Inspector Worth, I
believe that he made a rather cursory study of the noise levels to which
the employees in question were exposed, and his testimony reflects that
he had no in-depth perception as to precisely what the duties of a
crusher or ball mill operator are, and it seems obvious to me that he had
no idea how long he spent monitoring the tasks required of those individuals.
As a matter of fact, he conceded that he was not familiar with the duties
of a ball mill operator, and the record reflects that he did not speak
with the individuals, and apparently made no real attempt to ascertain
precisely what they were expected to do during their working shifts.
Further, as noted earlier, MSHA failed to call the two operators as
witnesses, and simply relied on the so-called "expertise" of its inspectors
to prove its case. As correctly argued by the co~1testant in its post-hearing
brief, MSHA's proof in this regard leaves much to the imagination.
With regard to the question concerning the mobility of the crusher
operator and ball mill operator, I find that the contestant has established
through credible evidence by its witnesses that it is neither feasible
nor practical to isolate the two individuals in a soundbooth for the
duration of time suggested by the inspector. I further find that the
contestant has established that these two individuals must be mobile
so that they are fully able to observe, test, and otherwise insure the
safe and efficient operation of the equipment and machinery for which
they are responsible. Based on the evidence presented by the contestant,
subjecting these individuals to a soundbooth environment would seriously
detract from their.ability to effectively and safely perform their
job tasks during their working shifts.
In view of the foregoing findings and conclusions, I conclude and
find that MSHA has failed to establish that the contestant is in violation
of the cited standards, and IT IS ORDERED that the citations issued to
the contestant in these proceedings be VACATED.

y/
ti,
(~Koutrs

Administrative Law Judge

Distribution:
Leo J. McGinn, Esq., U.S. Department of Labor, 4015 Wilson Blvd., Arlington,
VA 22203 (Certified Mail)
William 0. Hart, Esq., Asarco, Inc., 120 Broadway, New York, NY 10005
(Certified Mail)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 60204

SECRETARY OF LABOR, MINE SAFETY AND )
HEALTH ADMINISTRATION (MSHA)·, on
)
behalf of MICHAEL J. DUNMIRE, and
)
JAMES R. ESTLE,
)
Complainants,
)
)

v.

)
)

NORTHERN COAL COMPANY,

)

MAY 27 1981

APPLICATION FOR REVIEW OF
DISCRIMINATION
DOCKET NO. WEST 80-313-D
WEST 80-367-D
(Consolidated)
MINE: Rienau No. 2

)

Respondent.

)
)

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

APPEARANCES:
Frederick W. Moncrief, Esq., Office of the Solicitor,
United States Department of Labor,
Arlington, Virginia,
For the Complainants
Charles W. Newcom, Esq.,
Sherman and Howard,
Denver, Colorado
For the Respondent
Before: Judge John J. Morris
DECISION
STATEMENT OF THE CASE
The Secretary of Labor of the United States, the individual charged
with the statutory duty of enforcing the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq.(the Act), brings this action on behalf
of complainants Michael J, Dunmire-and James R. Estle. Complainants allege
they were illegally discharged from their employment by Northern Coal
Company (Northern) in violation of § 105(c)(l) of the Act.
The statutory provision allegedly violated provides as follows:
§ l05(c)(l) No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights

of any miner, representative of miners or applicant for employment in any
coal or other mine subject to this Act because such miner, representative
of miners or applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the operator or
the operator's agent, or the representative of the miners at the coal or
other mine of an alleged danger or safety or health violation in a coal or
other mine, or because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101 or because
such miner, representative of miners or applicant for employment has
instituted or caused to be instituted any proceeding under or related to
this Act or has testified or is about to testify in any such proceeding,
or because of the exercise by such miner, representative of miners or
applicant for employment on behalf of himself or others of any statutory
right afforded by this Act.
After notice to the parties a hearing on the merits was held in Littleton,
Colorado, on July 24 - 25, 1980. The parties filed extensive post trial
briefs.
ISSUES
The issues are whether complainants were discharged as a result of
engaging in a protected activity. Further, if the finding is affirmative, what
relief, if any, should be granted.
APPLICABLE CASE LAW
The Commission has ruled that to establish a prima facie case for a
violation of § 105(c)(l) of the Act a complainant must show by a preponderance
of the evidence that ( 1) he engaged in a protected activity and ( 2) that the
adverse action was motivated in any part by the protected activity. The
employer may affirmatively defend, however, by proving by a preponderance of
all the evidence that, although part of his motive was unlawful, (1) he was
also motivated by the minervs unprotected activities, and (2) that he would
have taken adverse action against the miner in any event for the unprotected
activities alone. Secretary of Labor on behalf of David Pasula v.
Consolidation Coal Company, Pitt 78-458, 2 BNA MSHC 1001.
FINDINGS OF FACT
Portions of the evidence are conflicting.
be credible.

I find the following facts to

The swing shift working crew at Northernvs Rienau Mine consisted of shift
foreman Mike Morgan, Michael Dunmire, James Estle, two buggy drivers, and an
extra man (Tr. 79, 83). On February 27, the crew worked on slope entry No. 1.
Estle operated the continuous miner which mines the coal. Dunmire ~erved as
the miner's helper. His duties included setting timbers and shovelling the
ribs (Tr. 120).

1332

Prior to February 27, 1980, Dunmire had complained to Northern supervisors
Morgan, Daniels and Pobirk that he didn't want to be under the unsupported top
shovelling the coal under the loose ribs while the continuous miner was
operating (69-70). In the entire slopes area the top roof was bad and falling
out (Tr. 65, 66, 82). Roof falls had occurred two to four times during the
shifts while Estle was running the continuous miner (Tr. 66, 67). The entire
slo~pes area had been in this same condition for two to three months (Tr. 134).
On February 27, the roof and ribs were 11 b lowing," that is, coal was flying out
and the ribs were sloughing. There was "blowing out" behind the continuous
miner (Tr. 83-84).
On February 27, the dust generated by the operation of the continuous
miner reduced visibility to almost nothing. This condition caused Estle some
concern about someone being injured. Estle complained about having to mine
under the unsupported roof (Tr. 73). Estle told Morgan they should stop the
mining operation, crossbar the roof, and find additional air. No one refused
to work during the swing shift on February 27, 1980. (Tr. 83-87).
On February 28, Estle was told that the Mike Morgan crew was being broken
up. Estle also learned that the plant superintendent approved the decision
because foreman Morgan was spending too much time running the continuous miner.
He was also told, as an additional reason for breaking up the crew, that Morgan
was not keeping up with h
supervisory duties including the roof control and
rock dust plan (Tr 219-221, 238, 256).
Immediately before start
the swing shift on February 28, 1980, Estle
talked to Rod Shaw, the continuous miner operator, from the previous shift.
When asked about the top, Shaw said it was as bad as last night and "blowing
out 11 1 (Tr. 93-94). Estle walked to the Stamler, where it was the custom to
discuss mining conditions, and advised the crew the top was bad (Tr. 95).
Dunmire then said he'd run the tailpiece or the Stamler during the shift.
Morgan, the foreman, stated that since he lacked experienced men Dunmire would
have to serve as a miner's helper. Morgan also replied that if he (Dunmire)
didn 8 t want to do it he knew what he could do. At this juncture Estle
interjected the remark that Dunmire could "get h
bucket and go home" (Tr•.
96, 141, 142). Estle's statement, given by him in a joking manner, was
immediately ratified by Morgan. Dunmire left. Estle told the crew they should
all go out with Dunmire. At this point foreman Morgan credits himself or crew
member Petree as stating to Estle that if he went out, "you'll be cutting your
own throat.or No one left (Tr. 97, 261).

1/ The testimony of witness Gene Moore corrobrates Shaw's testimony and it
appears in the discussion, infra. The writer finds Moore's testimony credible
but it is not included at this point because Moore did not advise the
Dunmire/Estle crew, of the conditions.

Estle waited a minute or so and then told Morgan that he was sick and that
he was leaving. Est le did not raise any safety issues with Morgan before
leaving the worksite. Morgan knew Estle had a back problem (Tr. 98, 107, 123,
124, 139). Estle repeated his explanation about being sick to plant
superintendent Pobirk before he left the mine· (Tr; 102). Estle stated he would
have gone home regardle~s since he didn't feel good (Tr. 99). That afternoon
Estle drove to Rifle, Colorado and he sought medical attention the following day
(Tr. 99, 106).
11

11

After the incident at the Stamler, Dunmire and Estle were told by Northern
supervisor Pobirk that since they had walked off the job they had quit
(Tr. 164, 228). Dunmire argued with Pobirk. He told him he wanted to work
but he didn't think the top was safe. Dunmire said he wanted the miner shut
down while he set the timbers, established ventilation, and shovelled the ribs.
Pobirk told Dunmire that he was terminated (Tr. 164-165).
Est le contended he did not quit, but left for medical reasons. According
to him, a worker was permitted to go home if he was sick (Tr. 137). When Estle
attempted to present his medical excuse to mine management they told him that
they considered him to have quit (Tr. 103).
Estle returned to the Northern mine about three weeks later. Estle told
Northern personnel that he would drop his discrimination charge if he was
rehired with back pay and a lost week of vacation (Tr. 104), He was told he
could not be rehired because then if anyone else wanted to walk out they could
do it and get away with it (Tr. 104).
There is a wealth of evidence dealing with the operation of the continuous
miner, with the crew's production of coal (generally excellent), with safety
complaints involving electrical equipment, and with the mining process itself.
Such evidence is not generally dispositive of the issues presented by the
parties.
CONTENTIONS REGARDING
MICHAEL J. DUNMIRE
Northern initially asserts that Dunmire quit or that Northern could take
his action as a quit. I disagree. The credible evidence establishes that
Dunmire refused to work as a miner's helper under a bad roof. He was forthwith
discharged, Morgan does not dispute complainant's version of the facts at the
Stamler. Immediat
after the Starnler incident Pobirk told Dunmire that he
considered him to have quit because he walked off the job. Dunmire argued with
him and told him that he still wanted to work but didn't think the top was
safe. He also wanted the miner shut down while he set the timbers, established
ventilation, and shovelled the ribs. Pobirk then said Dunmire was terminated
(Tr. 164-165).
Northern's further arguments focus on the alleged failure of Dunmire and
Estle to articulate that an unsafe work condition existed; further, that
Dunmire and Estle failed to examine the work area; finally, that the work area
was not, in fact, unsafe.

I find from the uncontroverted facts that Dunmire had previously
complained to company supervisors Morgan, Daniels, and Pobirk that he did not
want to shovel coal under the unsupported roof while the continuous miner was
operating (Tr. 69-70). No su~h complaints were made by Dunmire on February 28
to Morgan. However, one must consider these prior complaints as evidence that
Morgan and Pobrick knew Dunmire was concerned about the unsafe condition of the
roof. The montage upon which is based the finding that Dunmire exhibited to
Morgan that he was leaving for safety reasons and was consequently fired is:
the crew is together at the Stamler; Estle advises them of the bad top; Dunmire
at this juncture refuses to work as a miner's helper; he is forthwith
terminated by the crew foreman, Morgan, and the termination is confirmed by the
mine superintendent Pobirk.
Northern correctly states the law that before a miner can trigger the
discrimination provisions of the Act there must be some claim that the
conditions the employee is working in, or about to work in, are unsafe. Taylor
Adkins et al v. Deskins Branch Coal Company, PIKE 76-66, 2 BNA MSHC 1023,
I agree with Northern that Dunmire himself on February 28 made no safety
related complaints to Morgan (Tr. 176). However, it is apparent from the above
stated circumstances that Morgan, the foreman, knew Dunmire' s refusal to work
was based on what he considered to be the unsafe roof Cf Mine Workers Local
1110 v. Consolidation Coal Company, MORG 76 X 138 IBMA No. 77-43, 2 BNA MSHC
1022. Additionally, Dunmire expressed his concern about the unsafe roof
conditions to Pobirk in his office after the incident at the Starnler. Pobirk
responded by saying Dunmire was terminated (Tr. 164, 165, 281, 282).
In supp9rt of its view, Northern relies on Secretary of Labor and Charles
W. Miller v. Old Ben Coal Company, Docket No. LAKE 79-282-D, 1 BNA MSHC 2333
Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 772 (D.C. Cir.,
1974), and Secretary of Labor ex rel. Billy Gene Kilgore v. Pilot Coal Company,
VA 79-144-D, 1 BNA MSHC 2363.
The above cases do not support Northern's arguments. In Charles W.
Miller the dialogues between the miner and management were, at best, mere
disagreements, As such they could not form the basis for a discrimination
charge. In Phillips the miner did in fact complain to the foreman and the mine
safety conunittee. Billy Gene Kilgore did not involve a safety hazard. The
miner's refusal to drive the hauler truck was based on his fear of injury due
to his lack of experience. No protected activity existed. In none of the
cited cases
there a factual situation compatible with the facts here. It is
apparent from the circumstances here that Dunmire refused to work under the
unsupported roof and for this refusal he was discharged.
Northern further directs its argument to the failure of Dunmire and Estle
to examine the area alleged to be unsafe. At the outset I agree with Northern
that neither Dunmire nor Estle entered the mine immediately prior to starting
the swing shift on February 28, 1980.

It is not necessary to make such an examination. The evidence is
persuasive that Dunmire refused to work as a miner's helper because he thought
the roof condition was unsafe. Dunmire 1 s belief that the roof was unsafe is
based on the following events: On February 27 the miners were in the no. 1
entry in the slopes. In the entire slopes area the top roof was bad and
falling out (Tr. 65, 82, 66). Roof falls occurred two to four times during the
prior swing shif~ while Estle was running the continuous miner (Tr. 61). The
roof and ribs were 11 blowing 11 , that is, coal was flying out and the ribs were
sloughing. There was "blowing out" in behind the continuous miner (Tr. 83-84).
The entire slopes area had been in the same condition for two to three months
(Tr. 134). Inunediately before starting the swing shift on February 28 Estle
talked to Shaw, the continuous miner operator from the prior shift. Shaw
stated to Estle that "the top was bad" (Tr. 95). Estle related this statement
to the entire crew including the foreman (Tr. 95). At this point Dunmire
refused to work. The credible evidence establishes the bases of a reasonable
belief on Dunmire's part that the roof was unsafe.
No.rthern states that its evidence supports the view that the work area
was, in fact, safe. Particularly, Nor~hern relies on its witnesses Daniels,
Morgan, and Diaz. I do not find that Northern's evidence supports this
proposition.
Daniels described the top as "fair" with the admonition that no coal mine
has good top (Tr. 223). Morgan agreed the roof was "flaking" (Tr. 267). As
Morgan sees it, the difference between flaking and falling is one of quantity.
He describes a piece of coal as flaking if the size is one eighth of an inch
up to a foot. A roof fall is four or five· feet high and fifteen to twenty feet
long. Diaz indicated the roof was flaking but not "too bad". He stated that
this was normal for coal top. (Tr. 297). As indicated above, Northern's
evidence concerning the condition of the roof does not directly conflict with
the complainants' evidence~
Based on the foregoing facts and for the reasons stated, I conclude that
Michael J. Dunmire 1 s complaint of discrimination should be affirmed.
JAMES R. ESTLE
The facts concerning Estle have been established by the credible evidence
as previously stated ..
DISCUSSION
Northern 1 s post. trial arguments were directed in tandem at the Dunmire and
Estle cases. The issues concerning the failure of the miners to examine the
work area and whether the slope area was safe or unsafe have been resolved in
the discussion of the Dunmire case. The same rulings are applicable in the
Est le case.

Northern's additional arguments are that Estle failed to articulate a
safety complaint, that h~ quit, and that he promoted an unauthorized strike.
Additional arguments are directed to credibility issues.
The evidence shows that on February 28, at the Stamler, Estle advised the
whole crew, including foreman Morgan, that they were "putting up with the same
thing as last ·night and I talked to Rod and he said the top was bad" (Tr. 95).
Th-is constituted the articulation of a safety complaint on behalf of the entire
crew. Estle encouraged the crew to walk out in support of Dunmire because he
thought Dunmire was being fired for refusing to work in unsafe conditions (Tr.
97, 98). Estle was exercising on behalf of Dunmire and the crew a statutory
right to complain about unsafe conditions and the right to refuse to work under
such unsafe conditions, Fasula, supra.
The Act protects a miner exercising
•.• "On behalf of himself or others ••• any statutory right .•• 11 30 U.S.C. 815
(c)(l).

Northern's reply brief contends that Estle admitted he did not claim there
were unsafe working conditions innnediately prior to leaving the mine. (Tr.
107, Line 8-20). The portion of the transcript cited by Northern must be
considered in its context; namely, Estle admits he did not state an unsafe
condition was his personal reason for leaving. As indicated above he had
already complained that the roof was bad. Estle's reason for not raising the
safety issue again with Morgan is best expressed by his testimony. 2
Justification for Estle telling Morgan he was leaving because of his back
problem rather than restating the safety complaint is also found in the events
that occurred just prior to his leaving. As Dunmire left the section Estle
told the rest of the crew "we ought to go with him" (Tr. 261), Morgan 3 / then
said "well, if you go out, you'll be cutting your throat" (Tr. 261). Northern contends Estle quit, or it could consider his actions as an
intent ion to quit. I dis agree. He was entitled to fall back on a heal th
reason for leaving since a worker could go home if he became sick (Tr. 137).
Estle received medical attention the following day (Tr. 99, 106). When he
returned to the mine to present his medical excuse he was told by management
that they considered him to have quit because he had walked out of the mine.
Estle denied he had quit (Tr. 102, 103).

2/ Q. If you thought there was something unsafe, why didn't you raise that
with Mr. Morgan?
A. I think the main reason is after you argue so long about things like that,
you finally just say, 11 What the hell, 11 you just do the best you can and take as
few chances as you can and try to make your pay and get money to live on and I
was tired of arguing about it.
3/ Morgan attributes the statement to himself and then to Roy Petree.
attribute the statement to Morgan as he initially testified (Tr. 261).

I

Northern further asserts that if Estle was discharged any such action
was justified since the uncontroverted evidence shows Estle promoted an
unauthorized strike. In support of its position, Northern cites Secretary of
Labor ex rel Alfred A. Santistevan v. C F & I Steel Corporation, WEST 80-85-D,
1 BNA MSHC 252~. Northern 1 s argument lacks merit. The facts must generate the
conclusion that Estle was fired because he promoted a strike. The bur<;len of
proving such an issue rests with respondent, and there was no evidence to
support such a conclusion, cf David Pasula v. Consolidation Coal Company,
supra.
Northern argues that complainant~ testimony is not credible because they
raised the safety issue the second time they saw management and after they had
showered. I disagree. When Dunmire left the Stamler, supervisors Pobirk and
Daniels were standing nearby on the surface. Dunmire asked each man if they
wanted to talk to him. Both replied "No". Dunmire continued on his way,
frustrated and mad. He thought it best to take a shower and cool off (Tr.
164). In short, I do not find that Dunmire and Est le made up their stories
between the events at the Stamler and the conversations in Pobirk's office.
Northern urges that the evidence of an unsafe roof condition is
unreliable. Northern says that roof conditions change rapidly and MSHA would
claim foul if a defense were made that roof conditions on day one also existed
ori day two. A portion of this issue was resolved in the discussion of the
reasonable bases for Dunmire's and Estle's belief .that the roof was unsafe. In
addition to the evidence previously discussed, I find the testimony of witness
Gene Moore, a continuous miner operator, to be most persuasive concerning the
condition of the mine on February 28th. I have credited Moore's testimony
;ver that of the Northern supervisors because he was operating the continuous
miner in the shift innnediately preceding Estle's shift, and in the same area
Estle was to mine. Moore was, as the expression goes, "in the trenches." His
testimony establishes that the crew was finishing the break through in No. 1
entry and starting into No. 2 entry. Rod Shaw operated the continuous miner
the first half of the shift. The roof and rib conditions in No. 2 entry were
not very good. During the shift the miners lost about three quarters of the
roof (Tr. 181-188). When Moore left that day the ribs in No. 2 entry were
sloughing and blowing a bit (Tr. 189). Going out at the end of the shift.Moore
heard Rod Shaw tell Estle that they should watch the top as it was very bad
(Tr. 181-190). Contrary to Northern's view and based on the foregoing
testimony, I conclude the roof was unsafe on February 28th. Based on the
foregoing facts and for the reasons stated I conclude that James R. Estle 0 s
complaint of discrimination should be affirmed.
TEMPORARY REINSTATEMENT ORDER
of MICHAEL DUNMIRE
The thrust of Northern's argument is that it was error to deny its request
that a full hearing on the merits of the Dunmire case be held at the time of

the hearing on the temporary reinstatement order. The procedural ru1es 4 / of
the Commission provide for a hearing on the temporary reinstatement order
within five days after the operator requests such a hearing. The purpose of
the hearing is to determine whether the Secretary's finding that the miner's
complaint of discrimination was not frivolously brought was arbitrarily and
capriciously made.
In the present case, Chief Judge James A. Broderick entered a
reinstatement order as to Michael J. Dunmire on May 22, 1980. No reinstatement
order was applied for on behalf of James Estle. On May 30, 1980, Northern
requested a hearing on the order of temporary reinstatement, The parties
agreed to have the hearing held on June 6, 1980. The order directed that the
hearing be limited in scope by the terms of Commission Rule 44(a). On June 5,
1980, Northern moved for the consolidation of a hearing on the merits with the
hearing on the temporary reinstatement order, or in the alternative, for the
expedition of the hearing on the merits.
The hearing on the temporary reinstatement order took place as scheduled.
At the hearing Northern renewed its motion to consolidate (Tr. 8-9, June 6,
1980).
The undersigned denied Northern's motion for an immediate hearing on the
merits on the grounds that the issues had not yet been framed inasmuch as a
Complaint had not been filed. The motion for an expedited hearing was granted
and the hearing on the merits was set for July 24, 1980.
DISCUSSION
Commission Rule 29 C.F.R. § 2700.44(a) defines the scope of the hearing on
the temporary reinstatement order. Accordingly, the Commission rule takes
precedence over Rule 65(a)(2) of the Federai Rules of Civil Procedure relied on
by Northern to support its position that the hearing on the merits should have
been consolidated with the hearing.on the reinstatement order. Cf. Commission
Rule 29 C.F.R. § 2700.l,
4/ § 2700.44 Temporary reinstatement proceedings.
Ta) Contents of application procedure: hearing. An application for
reinstatement shall state the Secretary's finding that the complaint of
d crimination, discharge or interference was not frivolously brought and the
basis for his find
The application shall be immediately examined, and,
unless it is determined from the face of the application that the Secretary's
finding was arbitrarily or capriciously made, an order of temporary
reinstatement shall be immediately issued. The order shall be effective upon
issuance. If the person against whom relief is sought requests a hearing on
the order, a Judge shall, within 5 days after the request is
led, hold a
hearing to determine whether the Secretary's finding was arbitrarily or
capriciously made. The Judge may then dissolve, modify or continue the order.
(b) Dissolution of order. If, following an order of reinstatement, the
Secretary determines that the provisions of section 105(c)(l) have not been
violated, the Judge shall be so notified and shall enter an order dissolving
the order of reinstatement. If the Secretary fails to file a complaint within
90 days, the Judge may issue an order to show cause why the order of
reinstatement should not be dissolved. An order dissolving the order of
reinstatement shall not bar the filing of an act ion by the miner in his own
behalf under section 105(c)(3) of the Act and § 2700.40 of these rules.

1:13B

Northern argues that the temporary reinstatement of a miner without an
opportunity for the mine operator to counter the allegation of discrimination
violates due process principles. Northern states that it should not be
compelled to employ someone who was rightfully discharged. I agree that it is
possible that the enforcement of the Act may result in the temporary
reinstatement of a miner who at the conclusion of all proceedings under the Act
will be found to have been" properly terminated. However, Congress believed
that the operator was in a better position than the miner to sustain any
financial loss caused by the delays necessary for the investigation and
adjudication of the complaint. The legislative history is clear on this
issue:
Upon determining that the complaint appears to have merit, the
Secretary shall seek an order of the Commission temporarily
reinstating the complaining miner pending final outcome of the
investigation and complaint. The committee feels that this
temporary reinstatement is an essential protection for complaining
miners who may not be in the financial position to suffer even a
short period of unemployment or reduced income pending the
resolution of the discrimination complaint. U.S. Senate Report,
Report No. 95-181, 95th Cong., 1st. Sess. at 36-37 (1977).
It would be incongruous with the intent of Congress to require the
Secretary to complete the investigation and prepare for a trial on the merits
before applying for the temporary reinstatement of the miner. Accordingly, the
scope of the hearing on the application for reinstatement
limited to the
issue of whether the Secretary acted arbitrarily and capriciously in finding
that the complaint was not frivolously brought. At this hearing, the operator
has the opportunity to examine the facts upon which the Secretary's finding was
based ·and the procedures he employed to arrive at his determination . . The judge
must decide whether the Secretary's determination was based on a consideration
of the relevant factors, namely; that the miner allegedly engaged in protected
activity and as a consequence thereof was discharged or otherwise discriminated
against by the mine operator. The judge must decide whether there has been a
c ear error of judgment. However, the judge cannot substitute its judgment for
that of the Secretary. The judge must also determine if the Secretary followed
the necessary procedural requirements. Citizens to Preserve Overton Pa.rk v.
Volpe 401 U.S. 402 (1971).
Commission Rule 29 C.F.R. § 2700.44 complies with Congressional intent and
is not violative of due process. This was the ruling in a similar case decided
by the district court in Zeigler Coal Co., v. Marshall 502 F. Supp. 1326
( S. D. , I 11. , 1980) . The court there fol lowed the precept that "Congress has
broad latitude to readjust the ec?nomic burdens of the private sector in
0
futherance of a public purpose. Only if Congress legistates to achieve its
purpose in an arbitrary and irrational way is due process violated," citing
Nachman Corp. v. Pension Benefit Guarantee Corp., 592 F.2d 947 (7th Cir.
1979), citing Usery v. Turner Elkhorn Mining Cb., 429 U.S. 1, 15 (1976). In
'Ziegler the court specifically ruled that the ·governmental interest in
encouraging miners to report unsafe conditions was a legitimate goal and the
means chosen to accomplish it were rational.

Southern Ohio Coal Company v. F. Ray Marshall, 464 Fed. Supp. 450
S.D. Ohio, 1978, cited by Northern, does not support a different
conclusion. In Southern Ohio the mine operator was not afforded any
opportunity for a hearing. Under Commission Rule 29. C.F.R. § 2700.44(a)
an operator may receive a hearing within five days of filing its request.
This provision provides due process under the circumstances here where the
Congress, under certain conditions authorized "immediate reinstatement of
the miner pending a final order on the complaint." 30 U.S.C. 815(c)(2).
Northern, at the hearing on the temporary reinstatement order, did
not seek any evidence of the factual bases relied on by the Secretary to
apply for the reinstatement of Dunmire. Contrary to the statement in
Northern's brief, I ruled that such evidence was relevant (Tr. 21~22).
Northern has not successfully overcome Commission Rule 29 C.F.R. §
2700.44(a). The temporary reinstatement of Dunmire was proper.
REINSTATEMENT
After the hearing the parties agreed that Michael J. Dunmire
voluntarily left the employ of Northern Coal Company on August 22, 1980.
(Statement filed September 29, 1980). The parties further agreed that
if Michael J. Dunmire prevailed in his claim of discriminatory discharge
then reinstatement would not be an appropriate remedy.
Inasmuch as James R. Estle's complaint of discrimination is affirmed
he should be reinstated.
CIVIL PENALTIES
In each case the Secretary seeks a civil penalty of $8 ,000 against
Northern for the violation of Section 105(c) of the Act. Northern asserts
that the proposed penalty is unwarranted. I do not agree with Northern
that the Secr.etary did not present any evidence in support of his proposed
penalty. The credible evidence has been reviewed and the complaints of
discrimination have been affirmed. The Act provides that any violation of
the discrimination section shall "be subject to the provisions of section
108 5 / and llO(a). 116 / The statute authorizes the imposition of a
penalty in an amount not to exceed $10,000. 30 U.S.C. § 820(a). In
assessing civil monetary penalties the Connnission is to be guided by
section llO(i) 7/ of the Act. However, in construing a similar
statute 8 / settTng forth factors to be considered in assessing penalties
the United States Court of Appeals for the 8th Circuit stated that 11 [ t ]he

5/ 30 u.s.c. 818

6/ 30 u.s.c. 820(a)
71 30 u.s.c. llO(i)
Bl 30 u.s.c. 666(j) which provides:
(j) The Commission shall have authority to assess all civil penalties
provided in this section, giving due consideration to the appropriateness
of the penalty with respect to the size of the business of the employer
.being charged, the gravity of the violation, the good faith of the
employer, and the history of previous violations.

134.1

assessment of penalties is not a findLng but an exercise of a
discretionary grant .or power." Brennan v. OSHRC and Interstate Glass
Company 487 F. 2d 438. (8th Cir.,
Considering the pertinent statutes and in view of the fact~ I dee~ a
penalty of $3,000.00 to be an appropriate civil penalty in each case.
MONETARY AWARDS

After the conclusion of the hearing and the filing of briefs the
undersigned entered an order directing the parties to stipulate to the
potential back pay of complainants; in the event the parties could not
agree, an evidentiary hearing would have been held. The stipulation was
filed, together with supplemental briefs. Several secondary issues were
presented in connection with the monetary awards. These are (1) whether
complainants are entitled to the inclusion of vacation pay in the back pay
award; (2) whether complainants are ent led to reimbursement for their
expenses in connection with their attendance at the hearing; and (3)
whether Est le' s appropriate back pay period is from the day he was
discharged to the day he resumed full employment status with another
employer on April 14, 1980 or should back pay continue to accrue after
April 13, 1980, less any interim earnings.
The initial issue concerns vacation pay·; Dunmire and Estle had
accrued a right to take one week's vacation. Northern takes the position
that the workers have no such entitlement since the amount agreed to for
regular earnings, shift differential, and overtime was full pay for each
and every day they could have worked during the back pay period. Northern
states that its policy regarding vacation pay requires that employees take
time off. They cannot elect to receive vacation pay in lieu of such time
off.
The thrust of Northern's argument is directed at "double dipping",
that
, an employee cannot, at the same time, draw vacation pay and
regular pay. Although company policy requires an employee to take time off
and prohibits an election to receive vacation pay in lieu of time off,
such vacation pay, as a part of the employment contract, accrues and has a
monetary value. The award of vacation pay should accordingly be granted as
a portion of back pay.
The second issue concerns reimbursement of expenses in connection with
attending the hearings. Under Section 10S(c)(2), in a discrimination
proceeding brought by the Secretary, the Connnission may direct "other
appropriate relief," including an order incorporating affirmative action to
abate and "back pay and interest." A 105(c)(2) case brought by the
Secretary does not directly authorize costs and expenses.
On the other hand, in a proceedings brought by a miner on his own
behalf under Section 105(c)(3), in addition to back pay and interest, the
Commission shall award a sum for "all costs and expenses." The apparent

1342

conflict, as outlined above, is resolved by a review of the legistative
history:
It is the Committee's intention that the Secretary
propose, and that the Commission require, all relief
that is necessary to make the complaining party whole
and to remove the deleterious effects of the discriminatory conduct including, but not limited to reinstatement with full seniority rights, back-pay with
with interest, and recompense for any special damages
sustained as a result. of the discrimination. The
specified relief is only illustrative. Thus, for example,
where. appropriate, the Commission should issue broad cease
and desist orders and include requirements for the posting
of notices by the operator.
S.Rep. No. 95-181, 95th Cong. 1st Sess. 37, reprinted in (1977) U.S.
Code Cong. & Ad News 3400, 3437.
Application of the statutory •tandard has resulted in the
reimbursement of lost equity in a truck (Secretary on behalf of E. Bruce
Noland v. Luck Quarries, Inc., 2 FMSHRC 954), an employment agency fee
(Secretary on behalf of William Johnson v. Borden, Inc., SE 80-46- DM April
13, 1981), transcript, court costs, and attorneys fees (Frederick G.
Bradley v. Belva Coal Company, supra. Here, the expenses incurred in
participation in the hearings are special damages necessarily resulting
from complainants' prosecution of their claims. The statute intended these
expenses to be borne by the individual whose conduct occasioned them.
Northern also. argues that no expenses should be awarded Dunmire for
the hearing on the temporary reinstatement order because the Secretary
asserted that no testimony could be taken regarding the merits of the case.
This point has been thoroughly discussed (supra, pages 8 - 11). In
addition, there is no doubt that the presence of Dunmire was necessary in
the prosecution of his claim.
The third
sue concerns the calculation of Estle 1 s back pay. Estle
resumed full employment with another employer on April 14, 1980. The issue
is whether the appropriate back pay period should be from February 28, 1980
through April 13, 1980 or should back pay continue to accrue after April
13, 1980 less any interim earnings.
The ba~k pay provisions of § 105(c) of the Act are patterned after the
provisions of Title VII of the Civil Rights Act. These provisions are
modeled after the National Labor Relations Act, 29 U.S.C. § 160(c) Cf
Albemarle Paper Co v. Moody 422 U.S. 405 (1975). NLRB precedent indi"Cites
that as a general rule back pay is the difference between what the employee
would have earned but for the wrongful discharge less his actual interim
earnings. OCAW v. NLRB, 547 F. 2d 598 (D.C. Cir., 1976). Basically this
would be gross pay less net interim earnings. The employer is also
responsible for complying with applicable state and federal laws on the

,

withholding of taxes, etc. Cf Social Secur y Board v. Nieratko,327 U.S.
358 ( 1946), Bradley v. BelvaCoal Company WEVA 80-708-D. (April 1981).
Based on the case ,law stated above the back pay should continue to
accrue less any interim earnings. OCAW v. NLRB, supra. However, Northern
argues that Estle's award of back pay is limited by his pleadings which
sought back pay only through the time when he "resumed full employment
status with another employer."
According to the stipulation the back pay through his reemployment
date on April 13, 1980 is $2,485.78 (plus vacation pay). On the other
hand, according to the stipulation, Estle's back pay through March 6, 1981
less interim earnings, would be $5,442.41.
Northern indicates there is no case authority dealing with this
issue. Its argument is that under the doctrine of equitable estoppel the
Secretary should be precluded from seeking a larger award of back pay
because Norther relied on the initial claim in the pleadings during the
settlement negotiations. Northern says it would be inappropriate and
inequitable to change the rules one year later. Northern also contends the
doctrine of mitigation of damages is ap.plicable. In support of its
position Northern cites State Farm Mutual Automobile Ins. Co. v. Petsch,
261 F. 2d 331, (10th Cir, 1958); Phelps Dodge v. N.L.R.B., 313 U.S. 177, 61
S. Ct. 845 (1941), and U.S. v. Lee Way Freight, Inc. 625 F. 2d 918, (10
Cir. 1979). I do not find these cases controlling.
Concerning the issue of equitable estoppel, it is well settled that
the United States government is no~ in a position identical to that of a
private litigant when it is involved in the enforcement of laws enacted by.
Congress. U.S. v. Hibi 414 U.S. 5 (1973). State Fann is inapplicable since
it was a suit brought by an insured against the insurer. The Supreme Court
has held that as a general rule neglect of duty on the part of officers of
the government is no defense to a suit by it to enforce a public right or
protect a publ
interest. Hibi citing Utah Power & Light Co. v. U.S. 243
U.S. 389. As explained above;-"°Estle has a statutory right to the accrual
of back pay after April 13, 1980 less any interim earnings. The government
cannot be estopped from enforcing this right.
Further, the relief awarded in a judgment is not limited to that
demanded in the pleadings. Federal Rule of Civil Procedure 54(c).
Northernis additional argument concerns the legal requirement that all
persons must mitigate their damages. Northern's argument focuses on the
proposition that Estle did not seek temporary reinstatement. Therefore,
the argument goes, given the limited request for relief, Estle failed to
mitigate his damages in that he chose to retain a lower paying job rather
than to seek a return to Northern pending resolution of his complaint.
I disagree. The facts do not support such a "choice" by Estle nor is
the Act subject to the construction Northern now urges. Estle returned to
Northern and was advised he could not be rehired. He then mitigated his
damages by obtaining other employment. The order herein .based on the

stipulation, assesses back pay through March 6, 1981. However, back p~y
will continue to accrue until Estle is reinstated or until he waives such
right.
Based on the stipulation and for the foregoing reasons I conclude the
following monetary awards should be made:
MICHAEL J. DUNMIRE
Back pay
Vacation pay
Expenses in attending hearing:
June 6, 1980
July 24-25, 1980

$6 '208 .10
454.00
162.04
236. 58
$7,060.72

JAMES R. ESTLE
Back pay through March 6, 1981
Vacation pay
Hearing expenses

$5,442.41
492.00
253.78
$6,188.19

Based on the foregoing findings of fact and conclusions of law I enter
the fol lowing:
ORDER
Ca~e No. WEST 80-313-D
Michael J. Dunmire

1. Complainant Michael J. Dunmire was unlawfully discriminated
against and discharged by respondent for engaging in an activity protected
under Section 105(c) of the Act, and said complainant's charge of
discrimination is sustained.
2. Respondent is ordered to pay Michael J. Dunmire the sum of
$7,060.72 consisting of the following:
Back pay
Vacation pay
Incidental expenses for
attending hearing:
June 6, 1980
July 24-25, 1980

1:i1h

$6,208.10
454.00
162.04
236.58
$7,060.72

Further, respondent is to pay interest on said back pay, including
vacation pay, from February 28, 1980 at the rate of 12 1/2% per annum.2/
3. The employment record of Michael J. Dunmire is to be completely
expunged of all conunents and references to the circumstances involved in
his discharge.
4. A civil penalty in the amount of $3,000.00 is assessed against
respondent for violating Section 105(c) of the Act.
Case No. WEST 80-367-D
J.ames R. Estle
1. Complainant James R. Estle was unlawfully discriminated against
and discharged by respondent for engaging in an activity protected under
Section 105(c) of the Acr,and said complainant's charge of discrimination
is sustained.
2. Respondent is ordered to reinstate James R. Estle to the position
from which he was discharged, at the present rate of pay of said position,
and with the same or equivalent duties as assigned prior to his discharge,
without the loss of seniority or other benefits.
3. Respondent is ordered to pay James R. Estle the sum of $6,188.19
consisting of the following:
Back pay through March 6, 1981
Vacation pay
Hearing expenses

$5,442.41
492.00
253.78
$6,188.19

Further, respondent is ordered to pay interest on said back pay and
vacation pay from February 28, 1980 , at the rate of 12 1/2% per annum.
4. The employment record of James R. Est le is to be completely
expunged of all comments and references to the circumstances involved in
his discharge.
5. A civil penalty in the amount of $3,000.00 1s assessed against
respondent for violating Section lOS{c) of the Act.

9/ Interest rate used by Internal Revenue Service for underpayments and
overpayments of tax, Rev Ruling 79-366. Cf Florida Steel Corporation, 231
N.L.R.B. No. 117, 1977-78, CCH, N.L.R.B. Para 18,484; Bradley v. Belva
Coal Company, supra.

Distribution:
Frederick W. Moncrief, Esq., Office of the Solicitor, United States
Department of Labor, 4015 Wilson Blvd., Arlington, Virginia 22203
Charles Newcom, Esq., Dawson, Nagel, Sherman & Howard, 2900 First of Denver
Plaza, 633 17th Street, Denver, Colorado 80202

1347

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF Al1MINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

HAY 2 9 1981

Civil Penalty Proceeding

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

Docket Nos.

Assessment Control Nos.

KENT 79-264

15-01554-03005
15-01554-03006
15-01554-03008 v

KENT 79-265
KENT 79-370
KENT 80-131

EDDIE COAL COMPANY, INC.,
Respondent

15~01554-03010

No. 14 Hine
DECISION
Appearances:

William F. Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Herman W. Lester, Esq., Combs and Lester, PSC,
Pikeville, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued April 18, 1980, as supplemented
on April 28, 1980, a hearing in the above-entitled proceeding was held on
June 3, 1980, in Pikeville, Kentucky. The four Proposals for Assessment of
Civil Penalty involved in this proceeding allege a total of 59 violations
of the mandatory health and safety standards. Toward the end of the first
day of hearing, evidence had been received and bench decisions had been
rendered as to
of the 59 alleged violations. Following a recess,
counsel for the
ies stated that they had reached a settlement agreement
with respect to the remaining 51 alleged violations. Thereafter, counsel·
for the Secretary of Labor filed on December 9, 1980, a motion for approval
of settlement with respect to the 51 violations as to which no bench decision
had been rendered.
The first portion of this decision will be a final issuance of the
bench decisions rendered at the hearing with respect to the eight contested
violations. The remaining portion of the decision will discuss the motion
for approval of settlement. Under the parties' settlement agreement, respondent has agreed to pay reduced penalties totaling $2,850 in lieu of the
penalties totaling $7,025 proposed by the Assessment Office.
The bench decisions reproduced below pertain entirely to the Proposal
for Assessment of.Civil Penalty filed in Docket No. KENT 79-264. The bench
decisions appear throughout the transcript following the completion of evidence with respect to the eight contested violations. ·The transcript pages
on which the bench decisions begin are shown following the headings for each
contested violation. The introductory paragraphs which appear below under
the heading "Contested Violations" are applicable to all of the bench
decisions (Tr. 21).

Docket No. KENT 79-264
Contested Violations
This consolidated proceeding involves four Proposals for Assessment of Civil Penalty filed by the Secretary of Labor. The Proposals
in Docket Nos. KENT 79-264 and KENT 79-265 were both filed on
September 13, 1979, and seek assessment of civil penalties for 20 and
19,violations, respectively, of the mandatory health and safety standards by Eddie Coal Company. The Proposals in Docket Nos. KENT 79-370
and KENT 80-131 were filed on October 17, 1979, and February 11, 1980,
respectively, and seek assessment of civil penalties for 3 and 17
alleged violations, respectively.
The issues in a civil penalty case are whether violations occurred
and, if so, what civil penalties should be assessed, based on ~he six
criteria set forth in section llO(i) of the Federal Mine Saf
and
Health Act of 1977. Some of the criteria may be considered in a general
manner so that the consideration of those criteria become applicable
for an entire proceeding, such as this one, which involves a large
number of alleged violations.
At least two of the criteria may be considered on a general basis in
this case. As to those tuo criteria, there has been a stipulation by the
parties. As to the criterion of the size of the operator's business,
the parties have stipulated that respondent in this case is a small
operator which produces at the present time about 134 tons of coal per
day. It was first stated that payment of penalties would not cause the
operator to discontinue in business (Tr. 5). [After the settlement
conference, however, the parties stipulated that payment of penalties
would have an adverse effect on respondent's ability to continue in
business and a period of 90 days within which respondent would be
required to pay the settlement penalties was requested (Tr. 185).]
Citation No. 712092 dated 2/13/79~ Section 75.517 (Tr. 23)
Findings. Section 75.517 requires, among other things, that power
wires and cables shall be insulated adequately and be fully protected.
The violation alleged in Citation No. 712092 occurred because the
operator had failed to use additional insulation where a cable passed
through a permanent stopping before it connected to a water pump located
in the main intake airway. The violation was nonserious and the operator was nonnegligent. It was stipulated that the operator made a good
faith effort to achieve rapid compliance.
Conclusions. Although the former Board of Hine Operations Appeals
has held that an uperator is conclusively presumed to know what the
mandatory health and safety standards are, the violation in this instance involves something that an operator would not necessarily have
known that he was required to do, because the wire in this instance
was in good condition and did not have any worn places on it. The wire

did have insulation on it so that the operator could have concluded
that this particular wire was insulated adequately and was fully
at the point where it passed through a permanent stopping.
However, the inspector says that it is his policy to cite this type
of violation any time there's a possibility that stress and wear on
a wire might expose bare wires and bring about a possible shock or
electrocution.
The purpose of the Act and the regulations is to make a mine
just as safe as possible for the miners. Therefore, the inspector's
motive was good and it undoubtedly is a worthwhile practice to have
every
protective step taken to assure that no one will be
shocked or electrocuted. However, in assessing a penalty for this
particular violation, I think that a very nominal penalty should be
assessed in view of the circumstandes that I just recited. Consea
of $1 will be assessed for this violation.
Citation No. 7

dated 2

9

Section 75.303

Section 75.303 provides, among other things, that belt
conveyors on which coal is carried shall be examined after each coalshif t has begun and that "su.ch mine examiner shall place his
initials and
date and time at all places he examines." I find that
no violation of section 75.303 was proven in this instance because
the inspector cited a violation of that section based on his conclusion
that no
preshif t examination had been made. The violation
which occurred, if any, was that the section foreman had failed to
make an examination of the belt conveyor during the shift which was
worked at the time the inspector cited the violation.
Conclusions. I have run into this particular alleged violation
on
and each time the inspectors either cited a violation based on the fact that the section foreman had failed to make
an onshift examination by omitting the checking of the conveyor belt
or the
cited the operator for failure to make a
examination based on the fact that the inspector was unable to find
the initials and date and time showing that the preshift examination
had been made.
In this instance, the inspector says that the section foreman
indicated that he had so much work to do in the mine that he had been
unable to make an examination of the belt at the time the inspector
was
to the section foreman. The difficulty with citing the
violation the way the inspector has done it is that he has based it
on a conclusion that the section foreman must place his initials and
the time and the date at the places examined when he makes an onshif t
examination of the conveyor belt. The way the sentence is worded in
section 75.303, the examination of the belt conveyor is something
that has to be done after the shift begins, but the mine examiner is
to
his initials and the date and the time at all places
he examines and that initialing requirement connects back to the mine
examiner who was involved in making a preshiftexamination.

It is my conclusion that the sentence about examining belt conveyors after the shift has begun is out of context with the requirements set forth in section 75.303 for the obligations and duties of
the preshift examiner. I think that Citation No. 712094 so mixes
the obligation of the preshift examiner with those of the section
foreman, who was making the onshift examination, that it's an improper
conclusion to assume from the fact that t"\le inspector was unable to
find these initials and the date along this conveyor belt that the
onshift examination of' the belt conveyor had not been made or wouldn't
have been made on this particular day. As counsel for the operator
has observed, the section foreman was with the inspector during part
of the shift and, therefore, his inspection of the belt at that time
may not have been done because he was with the inspector.
The inspector does not claim that the entries in the preshif t
examination book had not been made. Since there is no allegation that
the examinations were not being made and were not being recorded, I
cannot find that a violation occurred merely because the inspector
was unable to find more dates along the conveyor belt than he did on
February 13, 1979.
Citation No. 712095 dated 2/13/79, Section 75.1725 (Tr. 73)
Findings. Section 75.1725 provides that mobile and stationary
machinery and equipment shall be maintained in a safe operating condition and machinery or equipment in unsafe condition shall be removed
from service innnediately. A violation of section 75.1725 occurred
because the inspector observed on a 3,000-foot conveyor belt 36 bottom
rollers which were stuck. The violation was moderately serious in the
circumstances because none of the rollers were touching coal on the
mine floor and the majority of them were in areas where there was
moisture. The operator had failed to observe the stuck rollers during
the preshift or onshift exanination and they're easy to see and should
have been located. Consequently, there was a rather high degree of
negligence. The operator demonstrated a good faith effort to achieve
rapid compliance.
Conclusions. Inasmuch as the violation was moderately serious",
that there was a high degree of negligence, and that a small operator
is involved, a penalty of $50.00 is appropriate. There is no history
of previous violations to be considered, according to Exhibit No. 45.
Citation No. 712098 dated 2/13/79, Section 75.523 (Tr. 99)
Findings·. Section 7 5. 523 provides that electric face equipment
shall be provided with devices that will permit equipment to be deenergized quickly in the event of an emergency. A violation of Section
75.523 occurred because the operator of the Joy loading machine had
moved the panic bar on the machine to an upward position so that it
would not quickly deenergize the equipment in the event of an emergency.
The violation was serious in that it would be possible for an equipment
operator to be caught and crushed against a rib because of his inability
to reach the panic bar in an emergency situation. Some·equipment

operators have a practice of placing the panic bar in an upward
position to prevent accidental deenergization of the equipment. Unfortunately, when the panic bar is placed in an upward position, it
is then not close enough to the operator to facilitate inunediate
usage of the panic bar in an emergency. The equipment operators'
practice of placing the panic bar in an upward position has made it
difficult for respondent to prevent the type of violation cited in
this instance. The evidence indicates that respondent demonstrated
a good faith effort to achieve rapid compliance.
Conclusions. As Mr. Taylor pointed out in his summary, the provisions of section 75.523-2 indicate that movement of no more than
2 inches should have to be made in order to actuate the deenergization device. There is no real argument in this instance as to whether
the violation occurred. The question is whether a large penalty should
be assessed because of the fact that the violation resulted from something that the equipment operator himself brought about. The Commission has recently held that mine operators are liable for violations
regardless of fault, and the Commission has been very strict in re· quiring that a penalty be assessed in anv situation where a violation
has occurred because the philosophy behind the use of civil penalties
is that penalties do deter the mine operators from allowing repeat
violations.
In a situation such as this, I can sympathize with Hr. Lester's
argument that it's difficult to replace miners and that a mine operator
can't discharge one every time he violates a safety regulation. The
only thing he can do is to insist upon stricter supervision by the
section foreman over people who do not take safety as seriously as
they should. But I think that the precedents \vould require me to
assess a fairly large penalty in this instance in order that repeat
violations of this nature are discouraged in every possible way. So,
primarily, on the basis of the seriousness of the violation and recogthat the operator is not guilty of a high degree of negligence
in this case, a penalty of $50.00 will be assessed.
I notice under the criterion of history of previous violations
that Exhibit 45 shows that the operator has two previous violations
of section 75.523. It has been my practice to increase ~enalties
when there is shown to be a history of previous violations. Therefore, considering the fact that a small operator is involved, the
penalty will be increased by $10.00 under the criterion of history of
previous violations to a total penalty of $60.00.
Citation No. 712099 dated 2/13/79, Section 75.400 (Tr. 133)
Findings. Section 75.400 provides that coal dust, including float
coal dust deposited on rock-dusted surfaces, loose coal, and other
combustible materials shall not be permitted to accumulate in active
workings. A violation of section 75.400 occurred because the inspector
found isolated pockets of loose coal ranging in depth from 1 to 3 inches

in entries 1 through 7. The accumulations were near the ribs and
were in an area which was 150 feet from the working face. The
area was rock dusted except for the accumulations and, consequently,
the violation was only moderately serious. Respondent had a program
providing for cleaning in the area and apparently the accumulations
resulted from shooting from the solid so as to cause coal to fall
from the ribs. The evidence indicates that the operator showed a
good faith effort to achieve rapid compliance.
Conclusions.

The Commission in Old Ben Coal Company,

1 FNSHRC

1954, (1979), held that the mere existence of accumulations of combustible materials is a violation. The Coim~ission said the purpose
of the Act is to prevent fire and explosions as a result of accumulations of combustible materials.
In this instance, however, we have some very small accumulations
and, although there is evidence that there are some permanent splices
tha,t exis.ted in this working area, the fact remains that these particular accumulations were close to the rib and that the working area
was wet except for the area close to the rib where the accumulations
existed. Consequently, I feel that there was little chance of fire
or an explosion from these particular accumulations, particularly
since no methane has been detected in this mine. Therefore, I think
that a small penalty should be assessed in this instance of $25.00.
Exhibit 45 shows that respondent has previously violated section
75.400 on two occasions, so the penalty will be increased by $10.00
under the criterion of history of previous violations to a total
of $35.00.
Citation No. 712100 dated 2/13/79, Section 75.601 (Tr. 151)
Findings. Section 75.601 requires, among other things, that
disconnecting devices used to disconnect power from trai~ing cables
shall be plainly marked and identified, so that disconnection of
such devices can be easily determined through visual observation.
A violation of section 75.601 occurred because the inspector found
that, although the disconnecting devices for the trailing cables for
the roof-bolting machine, the loading machine, and the shuttle car
had been plainly narked at some time, the disconnecting devices were
not plainly marked on the day that he wrote Citation No. 7121000
The violation was serious because, if a person had been asked
to disconnect a given cable so that the electrician, for example,
could work on.the cable at a splice or for another reason, the failure
of the person to disconnect the correct cable could result in a
possible shock or electrocution.
There was ordinary negligence in this instance because the operator had at one time marked these cables and it is a question of fact
as to how well marked they were at this time. There's always the

possibility for the electrician to feel that his markings were still
legible but might not have been.legible to some other employee who
might have been asked to disconnect these devices. The evidence shows
that there was a good faith effort made to achieve rapid compliance.
Conclusions. Inasmuch as a small operator is involved, that
the
ion was serious, and that there was ordinary negligence,
a penalty of $55.00 would be assessed, but Exhibit 45 indicates that
the operator has a history of one previous violation of section 75.601.
Therefore, the penalty will be increased by $5.00 to $60.00 under the
criterion of history of previous violations.
Citation No. 712703 dated 2/13/79, Section 75.200 (Tr. 174)
Section 75.200 requires that each operator submit a
plan applicable to his mine. Respondent's roof-control
plan required that a pry bar be provided for each roof-bolting
machine in the mine. A. violation of section 75.200 occurred because
the pry bar was unavailable on the machine at the time the inspector
asked about it. The violation was moderately serious and the operator
was guilty of ordinary negligence. There was a good faith effort
made to achieve rapid compliance.
Conclusions. The inspector's testimony indicates that he believes
the violation was serious because he said, without the pry bar being
available to the operator of the roof-bolting machine, it might have
been possible for the operator to leave loose material on the roof or
in an overhanging rib which would otherwise be taken down, i f the
pry bar were available. The inspector also referred to the existence
of kettle bottoms in this part of the mine.
Respondent's witness stated that 75 to 80 percent of the roof in
the No. 14 Mine is sandstone and that the need for prying down materials such as slate is not a common requirement in this mine. Addi• respondent's witness indicated that people, other than the
of the roof-bolting machine, do take the pry bars for other
purposes, even though respondent provides one for each.roof-bolting
machine.
In such circurastances, a penalty of $25.00 would be assessed,
but Exhibit 45 shows that Respondent has three prior violations of
section 75.200. Since a small operator is involved, the penalty
will be inc1· ,:..cl by $15.00 to $40.00 under the criterion of history
of
:Jlations.
Non.contested Violations
Docket No. KENT 79-264
Evidence with respect to Citation No. 712702, alleging a violation of
section 75.523, was introduced on transcript pages 154 through 165, but
I granted a request by respondent's counsel that no bench decision be

rendered with respect to that alleged violation until respondent's counsel
could call a witness to testify with respect to the violation (Tr. 164).
After the parties entered into a settlement agreement, I granted their
request that they be permitted to include the violation of section 75.523
among the violations which became a part of the settlement agreement
(Tr. 186). On page 4 of the motion for approval of settlement, I am requested to rely upon the proof submitted at the hearing in approving the
parties' settlement agreement with respect to Citation No. 712702. That
citation alleged that respondent violated section 75.523 by having an inoperative panic bar on its battery-powered tractor. The Proposed Assessment
sheet in the official file shows that the Assessment Office considered the
violation to have resulted from ordinary negligence, to have been serious,
and proposed a penalty of $106 which respondent has agreed to pay in full.
The evidence introduced at the hearing would support the find
made by
the Assessment Office. Therefore, the parties' settlement agreement should
be approved with respect to Citation No. 712702. The evidence which respondent would have introduced if a settlement had not been reached might have
caused me to make different findings from those made above, but since the
parties agreed to settle the issues raised by Citation No. 712702, my review
is limited to determining whether the settlement agreement is reasonable,
rather than whether a violation occurred and whether respondent's evidence,
if it had been introduced, would require different findings from those which
were originally made by the Assessment Office.
Evidence was presented on transcript pages 176 to 184 with respect
to Citation No. 712704, alleging a violation of section 75.517, but that
alleged violation also became a part of the settlement agreement (Tr. 185).
The motion for approval of settlement, at page 4, asks that I approve the
parties' settlement agreement on the basis of the evidence received at pages
176 to 184. Citation No. 712704 alleged that respondent had violated
section 75.517 by failing to reinsulate four small cracks in the trailing
cable to the coal drill. The Assessment Office considered the violation
to have resulted from ordinary negligence, to have been serious, and proa penalty of $90 which respondent has agreed to pay in full. The
testimony at the hearing shows that the potential hazard was greater than
it was considered to be by the Assessment Office because the inspector stated
that the coal drill was sitting in water and that its trailing cable was
lying in water when he first observed the coal drill (Tr. 180). Of course,
the inspector did not make his examination of the drill and its cable until
the drill and its cable had been removed from the water, but he said that
the cracks in the cable exposed any person who did touch the cable to
possible electrocution. Inasmuch as the parties agreed to make this alleged
violation a part of their settlement agreement before respondent crossexamined the inspector or presented any evidence with respect to the alleged
violation of section 75.517, it would be improper for me to find, on the
basis of the inspector's testimony alone, that the Assessment Office erred
in failing to assign more penalty points than it did to this alleged violation
under 30 C.F.R. § 100.3. It is sufficient, for settlement purposes, that

the findings of the Assessment Office be supported by the evidence in the
record. I find that the settlement agreement under which respondent has
agreed to pay the full penalty of $90 proposed by the Assessment Office
should be approved since the evidence supports the Assessment Office's
findings.
No evidence was presented at the hearing with
to any of the
other 49 violations alleged in this proceeding. Therefore, from this point
to the conclusion of this decision, the only considerations are those which
are normally considered in a settlement proceeding, that is, whether the
motion for approval of settlement gives adequate reasons for approving the
amount of the penalties which respondent has agreed to pay.
Citation No. 712705 alleged that respondent had violated section
75.1722(b) by failing to provide a guard at the conveyor belt's tail pulley.
The Assessment Office found the violation to have resulted from a high degree
of ordinary negligence, to have been serious, to have been abated in a normal
manner, and proposed a penalty of $140. Respondent has agreed to pay a reduced penalty of $60. The motion for approval of settlement states that
a reduced penalty is warranted because it was unlikely that a person could
be injured by the tail pulley here involved and that the operator was entitled to a reduction in assignment of penalty points under the criterion of
good faith abatement because the conveyor belt was stopped immediately after
the citation was written and a guard was installed. I find that adequate
reasons have been given for approving the reduced penalty.
Citation No. 712706 alleged that a violation of section 75.313 had
occurred because the methane monitor on the loading machine was inoperative.
The Assessment Office found the violation to have resulted from ordinary
negligence, to have been moderately serious, to have been abated in a normal
manner, and proposed a penalty of $52. Respondent has agreed to pay a
reduced penalty of $17. The motion for approval of settlement claims that
the reduction is primarily justified by the fact that respondent's mine has
no history of ever having released any methane and the fact that respondent
stopped production to achieve compliance, thereby becoming entitled to
maximum consideration for
an outstanding effort to achieve rapid
compliance.
Citation
that a violation of section 75.604 had
occurred because the
cable to the loading machine had permanent
s
which were not effectively sealed to exclude moisture. The Assessment Office considered the violation to have resulted from ordinary negligence, to have been serious, to have been abated in a normal manner, and
proposed a pen~lty of $90. Respondent has agreed to pay a reduced penalty
of $30. The motion for approval of settlement states that the reduced
penalty is warranted by the fact that, if a hearing had been held, the
evidence would have shown that the cable was adequately insulated. It is
also stated that respondent is entitled to a reduction of the penalty proposed by the Assessment Office because respondent stopped production until
further work could be done to insulate the trailing cable.

135h

Citation No. 712708 alleged that a violation of section 75.604 had
occurred because the trailing cable to the coal drill had four permanent
splices which were not effectively insulated to exclude moisture. The
Assessment Office found the violation to have resulted from ordinary negligence, to have been moderately serious, to have been abated in a normal
period of time, and proposed a penalty of $90. Respondent has agreed to
pay a reduced penalty of $30 which the motion for approval of settlement
justifies for the same reasons referred to above with respect to Citation
No. 712707.
Citation No. 712709 alleged that a violation of section 75.200 had
occurred because respondent had failed to provide straps in several entries
where kettle bottoms were present in the roof. The Assessment Office considered the violation to have resulted from ordinary negligence, to have
been serious, to have been abated in a normal manner, and proposed a
penalty of $106. Respondent has agreed to pay a reduced penalty of $30.
The reduced penalty is said to be warranted by the fact that respondent
stopped production to install the necessary additional roof support. The
Assessment Office failed to give any consideration for rapid abatement.
Citation iJo. 712710 alleged that a violation of section 75.503 had
occurred because a burst conduit to the batteries on a tractor prevented
the tractor from being in permissible condition. The Assessment Office
considered the violation to have resulted from ordinary negligence, to
have been moderately serious, to have been abated in a normal manner, and
proposed a penalty of $66. Respondent has agreed to pay a reduced penalty
of $20 which is said to be warranted primarily by the fact that respondent
took extraordinary steps to gain compliance,.whereas the Assessment Office
gave insufficient consideration to respondent's effort to achieve rapid
compliance.
Citation No. 712711 alleged that a violation of section 75.202 had
occurred because several overhangin3 brows had not been taken down or
supported. The Assessment Office considered the violation to have resulted
from ordinary negligence, to have been serious, to have been abated in a
normal manner, and proposed a penalty of $106. Respondent has agreed to
pay a reduced penalty of $30. The reduced penalty is said to be warranted
by the fact that respondent was having a difficult problem in connection
with brows left by shooting coal from the solid, that is, without use of a
cutting machine. Respondent was attempting to eliminate the problem at
the time the inspection was made and respondent stopped production to
achieve rapid compliance.
Citation No. 712714 alleged that a violation of section 75.202 had
occurred because several timbers along the roadway had been dislodged and
had not been replaced. The Assessment Office considered the violation to
have resulted from ordinary negligence, to have been serious, to have been
abated in a normal manner, and proposed a penalty of $106. Respondent has
agreed to pay a reduced penalty of $30. The reduced penalty is said to be
warranted primarily because of management's taking .extraordinary steps to
achieve rapid compliance.

Citation No. 712715 alleged that a violation of section 75.5
had
occurred because respondent had failed to record the weekly examination
of electrical equipment since no entries had been made in the book for
11 days preceding the inspection. The Assessment Office considered the
violation to have resulted from ordinary negligence, to have been nonserious, to have been abated in a normal manner, and proposed a penalty
of $52. Respondent has agreed to pay a penalty of $17 which is said to
be warranted by the nonserious nature of the violation and the fact that
the Assessment Off ice failed to give respondent as much consideration for
rapid abatement as the facts would warrant if a hearing had been held to
develop all extenuating cicumstances.
Citation No. 712716 alleged that a violation of section 75.316 had
occurred because respondent had not submitted an updated version of its
ventilation, methane, and dust control plan. The Assessment Office found
the violation to have resulted from ordinary negligence, to have been nonserious, to have been abated in a normal manner, and proposed a penalty
of $38. Respondent has agreed to pay a reduced penalty of $12 which is
said to be warranted
the fact that respondent submitted an updated plan
on the day following the writing of the citation and thereby became entitled to maximum consideration for having achieved rapid compliance.
Most of the reductions in penalties under the settlement agreement
for the violations
in Docket No. KENT 79-264 have been justified
in the motion for
of settlement on the basis that the Assessment
Office gave no consideration for respondent's having taken extraordinary
steps to achieve
I would normally consider a settlement
agreement to be somewhat contrived by relying upon that aspect of the criteria to such a
extent if it were not for the fact that the testimony
at the hearing supports such reliance (Tr. 159; 182-183). Therefore, for
the reasons given above, I find·that the settlement agreement as to the
violations
in Docket No. KENT 79-264 should be approved.
Docket No. KENT 79-265
Citation No. 712717
that a violation of section 75.1202 had
occurred because respondent had failed to keep its mine map up to date by
making temporary notations thereon. The Assessment Office considered the
violation to have resulted from ordinary negligence, to have been nonserious,
to have been abated in a normal manner, and proposed a penalty of $38. Respondent has agreed to pay a reduced penalty of $5. The motion for approval
of settlement states that the reduced penalty is warranted primarily because
respondent stopped production to achieve rapid compliance, whereas the Assessment Off ice allowed for
normal abatement in assigning penalty points
under 30 C.F.R. § ·100.3.
Although the motion for approval of settlement does not discuss it,
there is built into the Assessment Office's method of assigning penalty
points under section 100.3 a practice which can be difficult to appraise in
some cases. The
ice I am talking about is the Assessment Office's

1~5k

method of assigning penalty points under the criterion of history of previous
violations. It should be noted that all violations alleged in Docket No.
KENT 79-265 have assigned to them eight penalty points under the criterion
of history of previous violations based (1) on the fact that an average of
from 11 to 20 violations were cited at respondent's mine each year during
the 24 months preceding the occurrence of the.violations alleged in this
proceeding, and (2) on the fact that from nine-tenths of a violation to one
violation was written at respondent's mine each time an inspector spent
1 day making an examination at respondent's mine. Assignement of eight
penalty points under the criterion of history of previous violations causes
each penalty in Docket No. KENT 79-265 to be assessed a minimum amount of
$16, apart from any amount to be assessed under the other five criteria.
The difficulty in adjusting for the Assessment Office's method of computing penalties under the criterion of history of previous violations is
illustrated with respect to Citation No. 712712 here under consideration.
The violation consists of the operator's failure to make temporary notations
on a mine map. The parties' settlement agreement has recognized the nonserious nature of the violation and has agreed on a nominal penalty of $5,
but it is difficult to justify such a small penalty under the Assessment
Ofrice's penalty formula described in section 100.3 because, under the
single criterion of respondent's history of previous violation, the Assessment Office has proposed a·penalty of $16 attributable solely to respondent's
history of previous violations. There was introduced in evidence at the
hearing as Exhibit No. 45 a computer printout which shows that respondent
has not previously violated section 75.1202. Therefore, in my opinion,
respondent, in this instance, should be assessed no penalty under the criterion of history of previous violations. If one bears in mind, in this
instance, the rieed to eliminate the basic penalty of $16 built into the
Assessment Office's formula under the criterion of history of previous
violations, and then if one invokes the Assessment Office's formula for
evaluating· the criterion of good-faith abatement, by recognizing that
respondent should be given full credit for its rapid achievement of compliance, as claimed by the motion for approval of s '-lement, the parties'
settlement agreement, under which respondent has
·eed to pay a penalty
of $5~ can be approved.
Citation No. 712718 alleged that respondent ~d violated section 75.316
by failing to provide a water spray at the dumping point.
The Assessment
Office considered the violation to have resulted from ordinarv negligence,
to have been moderately serious, to have been abated in a normal manner,
and proposed a penalty of $52, whereas respondent has agreed to pay a penalty
of $17 which is
to be warrented primarily by the fact that respondent
stopped production to achieve compliance and is therefore entitled to maximum consideration for rapid abatement.
"it:ltion No. 712724 alleged that respondent had violated section 75.516-1
by using unapproved insulators to instalJ · Power conductor. The Assessment
Office found the violation to have resulted from a relatively high degree of
ordinary negligence, to have been serious, to have involved a lack of goodfaith effort to achieve compliance, and proposed a penalty of $275, whereas

respondent has agreed to pay a reduced penalty of $100. The motion states
that the reduced penalty should be justified primarily on the fact that the
violation was corrected immediately. The evidence does not permit me to
approve the reduced penalty on the basis alleged on page nine of the motion
for approval of settlement because Exhibit No. 3 in Docket No. KENT 79-265
shows that the inspector issued Withdrawal Order No. 712741 when respondent
failed to take prompt action to abate the alleged violation. Respondent
did not abate the violation until July 27, 1979. The order of termination
stated that the improperly suspended cable was replaced with a new cable
which could carry a much higher voltage than the cable originally cited
for improper suspension.
I believe that a reduced penalty of $100 should be approved. The
amount of $16 assigned by the Assessment Office under the criterion of
history of previous violations can be eliminated because Exhibit No. 45
in this proceeding shows that respondent has not previously violated section
75.516-1 or any subsection of that section. The finding that respondent
failed to make a good-faith effort to achieve compliance can also be eliminated along with the penalty of $20 associated with application of the
criterion of respondent's effort to achieve rapid compliance.
Additionally,
the gravity of the violation was not as great as it was considered to be by
the Assessment Off ice. Both of the aforementioned reductions are supported
by the fact that the inspector's order was modified to permit respondent to
continue to use the improperly suspended cable for 3 months before a new
cable was installed. If the violation had been as serious as it was considered to be by the Assessment Office, the inspector could not have extended
the time for compliance for a 3-month period. In such circumstances, I
find that respondent's agreement to pay a penalty of $100 should be approved.
Citation No. 712729 alleged that respondent had violated section 77.1301
by allowing dry grass and paper boxes to accumulate around the magazine used
for storage of explosives and detonators. On page nine of the motion for
approval of settlement, a request is made that the Proposal for Assessment
of C
Penalty be dismissed in Docket No. KENT 79-265 to the extent that
it seeks assessment of a penalty for a violation of section 75.1301 on the
that, if a further hearing had been held, the evidence would have
shown that the combustible materials had accumulated a considerable distance
from the explosives magazine and did not create a condition prohibited by
section 75.1301. I find that good cause has been shown for granting the
motion to dismiss, as hereinafter ordered.
Citation No. 712725 alleged that a violation of section 75.503 had
occurred because the insulation was frayed on both sides of a cable reel on
a shuttle car. The Assessment Office considered the violation to have resulted from ordinary negligence, to have been moderately serious, to have
been abated in a normal manner, and proposed a penalty of $66, whereas
respondent has agreed to pay a penalty of
The motion states in effect
that a reduced penalty is warranted because the violation was not as serious
as it was considered to be by the Assessment Office and that respondent
should be given maximum consideration for good-faith abatement because
production was stopped until the condition could be corrected.

Citation No. 712726 alleged th1. : a violation of section 75. 703 had
occurred because respondent had not provided a frame ground for a shuttle
car. The Assessment Office considered the violation to have resulted
from ordinary negligence, to have been serious, to have been abated in a
normal manner, and proposed a penalty of $90, whereas respondent has
agreed to pay a penalty of $75. The motion seeks to justify the reduced
penalty on the ground that respondent is entitled to maximum consideration
for rapid abatement. Additionally, the Assessment Office assigned eight
penalty points under the criterion of history of previous violations, whereas
Exhibit No. 45 shows that respondent has not previously violated section
75.703.
Citation No. 712727 alleges that a violation of section 75.1303 had
occurred because respondent was using a shooting cable containing a temporary splice which had not been insulated at all. The Assessment Office
considered the violation to have resulted from ordinary negligence, to
have been serious, to have been abated in a normal manner, and proposed a
penalty of $106, whereas respondent has agreed to pay a reduced penalty of
$30. The motion states that the reduction is warranted because of respondent's rapid abatement. Additionally, Exhibit No. 45 shows that respondent
has not previously violated section 75.1303.
Citation No. 712728 alleged that a violation of section 75.1704 had
occurred because water had accumulated in the No. 3 entry to a depth of
from 8 to 10 inches. The No. 3 entry is a haulage roadway and a return
air escapeway. The Assessment Office considered the violation to have
resulted from ordinary negligence, to have been serious, to have been
abated in a normal manner, and proposed a penalty of $106, whereas respondent has
to pay a reduced penalty of $35. The motion states that
the reduced penalty is warranted by management's having taken extraordinary
steps to achieve compliance. Also respondent is entitled to a reduction in
the penalty because Exhibit No. 45 shows that respondent has not previously
been cited for a violation of section 75.1704.
Citation No. 712625 alleged that a violation of section 75.400 had
occurred because respondent allowed some cardboard boxes to accumulate
around the explosives magazine located 150 feet from the working face.
On page 10 of the motion for approval of settlement it is requested that
the Proposal for Assessment of Civil Penalty in Docket No. KENT 79-265 be
dismissed to the extent that it seeks assessment of a penalty for an alleged
violation of section 75.400 on the ground that the inspector who wrote the
violation subsequently vacated the citation as having been issued in error.
I find that the motion for dismissal should be granted as hereinafter ordered.
Citation No. 712626 alleged that a violation of section 75.1306 had
occurred because respondent had allowed the wagon used to haul explosives
to be parked in the shuttle car roadway while loaded with powder and detonators and with the shuttle car's trailing cable resting against the explosives wagon. The Assessment Office considered the violation to have resulted

from ordinary negligence, to have been serious, to have been abated in a
normal manner, and proposed a penalty of $106, whereas respondent has
to pay a reduced penalty of $30. The motion states in effect that
the reduced penalty is justified by the fact that the violation was not as
serious as it was considered to be by the Assessment Office and by the fact
that respondent is entitled to maximum consideration for rapid abatement.
Additionally, respondent has not previously violated section 75.1303.
Citation No. 712627 alleged that respondent had violated section 75.512
by failing to maintain a bell on a scoop in an operable condition. On
page 11 of the motion for approval of settlement it is requested that the
Proposal for Assessment of Civil Penalty be dismissed to the extent that it
seeks assessment of a civil penalty for an alleged violation. of section
75.512 because the inspector who wrote the citation later vacated it as
having been issued in error. I find that the motion to dismiss should be
granted as hereinafter ordered.
Citation No. 712628 alleged that respondent had violated section
75.1704-2(d) because a map to show designated escapeways from the working
section to the main escape system had not been provided. The Assessment
Office considered the violation to have resulted from ordinary negligence,
to have been nonserious, to have been abated in a normal manner, and proposed a penalty of $40, whereas respondent has agreed to pay a penalty of $13.
The motion states that a reduced penalty is warranted because respondent is
entitled to maximum consideration for good-faith abatement. Also, Exhibit
No. 45 shows that respondent has not previously violated section 75.1704.
Citation No. 712629 alleged that r-espondent had violated section 75.1704
by failing to mark the second escapeway properly. The Assessment Office
considered the violation to have resulted from ordinary negligence, to have
been nonserious, to have been abated in a normal manner, and proposed a
penalty of $40, whereas respondent has
to pay a penalty of $13. The
motion gives the same reasons for allowing a reduced penalty with respect
to Citation No. 712629 as were
above with respect to Citation No.
712628,
Citation No. 712630 alleged that respondent had violated section 75.200
by failing to provide canopies for two main entries as required by respondent's roof-control plan. The Assessment Office considered the violation
to have resulted from ordinary negligence, to have been serious, to have
been abated in a normal manner, and proposed a penalty of $106, whereas
respondent has agreed to pay a penalty of $50. The motion states in effect
that the reduced penalty is warranted because the violation was not as
serious as it was·considered to be by the Assessment Office and that respondent is entitled to maximum consideration for having achieved rapid compliance.
Citation No. 712631 alleged that respondent had violated section 75.1001
by failing to remove some rocks and trees from a highwall. The Assessment
Office considered the violation to have resulted from ordinary negligence,
to have been moderately serious, to have been abated in a normal manner,
and proposed a penalty of $78, whereas respondent has agreed to pay a penalty

1362

of $25. The motion states that the reduced penalty is warranted because
respondent is entitled to consideration for rapid abatement. Additionally,
Exhibit No. 45 shows that respondent has not previously violated section
75.1001.
Citation No. 712632 alleged that respondent had violated section
77.1102 by failing to post warning signs to prohibit smoking and open
flames near a storage area for combustible liquids. The Assessment Office
considered the violation to have been the result of ordinary negligence,
to have been nonserious, to have been abated in a normal manner, and proposed a penalty of $40, whereas respondent has agreed to pay a penalty of $5.
The motion states that the reduced penalty is warranted on the ground that
the employees were aware of the location of the s
area and knew not
to smoke in that area. It is also alleged that respondent is entitled to
maximum consideration for rapid achievement of compliance. Finally,
Exhibit No. 45 shows that respondent has not previously violated section
77 .1102.
Citation No. 712634 alleged that respondent had violated section 75.303
because respondent had failed to note at seals in the mine that weekly inspections of the seals at an abandoned area had been made. The Assessment
Off ice considered the violation to have been the result of ordinary negligence, to have been moderately serious, to have been abated in a normal manner,
and proposed a penalty of $66, whereas respondent has
to pay a reduced
penalty of $15. The motion states that the reduction in penalty is justified
because the operator had examined the majority of the seals. It is alleged
that the violation was not as serious as it was considered to be by the
Assessment Office because the mine has never been known to release any
methane.. It is also claimed that respondent is entitled to maximum consideration for rapid abatement. Additionally, respondent has not previously
violated section 75.313, according to Exhibit No. 45.

.

Citation No. 712635 alleged that respondent had violated section 75.200
by failing to provide additional roof support for a return
which is
used to transport employees and supplies. The Assessment Office found the
violation to have resulted from a high
of ordinary negligence, to
have been serious, to have involved a lack of good-faith effort to achieve
compliance, and proposed a penalty of $305 which respondent has agreed to
pay in full. The motion states that the Assessment Office properly evaluated
the criteria in this instance and that the full amount proposed by the Assessment Office should be paid.
Citation No. 712636 alleged that respondent had violated section 77.1104
because accumulati-ons of grease, lubricants, and coal dust had been allowed
to accumulate around the No. 1 belt conveyor drive located on the surface.
The Assessment Off ice considered the violation to have resulted from ordinary
negligence, to have been moderately serious, to have been abated in a normal
manner, and proposed a penalty of $66, whereas respondent has agreed to pay
a penalty of $15. The motion states that the reduced penalty is warranted
because the accumulated materials did not create a hazard on the surf ace of

of the mine and that respondent should be given credit for having achieved
rapid abatement. Also,'Exhibit No. 45 shows that respondent has not previously violated section 77.1104.
I find that the reasons hereinbefore given provide adequate bases for
approving the parties' settlement agreement with respect to the violations
alleged in Docket No. KENT 79-265.
Docket No. KENT 79-370
Citation No. 712093 was written under the unwarrantable failure provisions, or section 104(d)(l), of the Act. The citation. alleged that respondent had violated section 75.1100-l(a) because the water supply for the
waterline running parallel to the belt conveyor was frozen. The Assessment
Office waived the formula provided for in 30 C.F.R. § 100.3 and proposed
a penalty of $500 on the basis of narrative findings emphasizing the criteria
of negligence and gravity.
Order No. 712097 was written, under section 104(d)(l) of the Act, about
2 hours after the citation described above was issued. The order alleged
that respondent had violated section 75.701 by failing to provide a frame
ground for a power cable supplying power to a submersible pump located about
90 feet outby the section tailpiece. The frame ground wire existed, but it
had not been connected because the section foreman had just not taken the
time required to connect the wire when he installed the pump. The Assessment Off ice proposed a penalty of $500 for this alleged violation after making
narrative findings emphasizing the criteria of negligence and gravity.
Order No. 712701 was written about 2 hours after the order described in
the preceding paragraph was written. That order alleged that respondent had
violated section 75.512 by failing to maintain the brakes on a batterypowered tractor in a safe operating condition. The order alleges that a
rod had broken so that the master cylinder could not be actuated by the brake
pedal. The inspector considered the violation to be serious since the tractor
was used as a mantrip to take miners in and out of the mine. The Assessment
Office proposed a penalty of $750 for this alleged violation after making
narrative findings emphasizing the criteria of negligence and gravity.
The three violations described above constitute all the violations for
which penalties are sought by the Proposal for Assessment of Civil Penalty
filed in Docket No. KENT 79-370. The motion for approval of settlement
states that respondent has agreed to pay reduced penalties of $200, $165,
and $369, respectively, for the violations alleged in the citation and two
orders described above. The primary reason given for reducing the penalties
proposed by the Assessment Office is that, in each case, respondent immedicorrected the violations. The inspector's sheets evaluating negligence,
gravity, and good-faith abatement show that respondent stopped production
and immediately corrected the deficiencies cited in the citation and orders.
The operator's prompt action is not as impressive as it might be since two
of the violations were cited in withdrawal orders which would have caused·
respondent to stop production in any event.

As I have explained above, however, the evidence presented at the
hearing held as to some of the violations involved in this proceeding
showed that respondent stopped production in order to achieve rapid compliance with respect to ordinary citations. There is no doubt, therefore,
but that respondent is entitled to maximum consideration for achieving rapid
compliance. The question which remains, of course, is whether rapid goodfaith compliance is a sufficient consideration to warrant approval of a
settlement which reduces penalties proposed by the Assessment Office by
58 percent solely on the ground that respondent rapidly complied with the
mandatory safety standards after having been cited for violating them.
Although the motion for approval of settlement does not point it out,
Exhibit No. 45 shows that respondent has not previously violated either
section 75.701 alleged in Order No. 712097 or section 75.1100-l(a) alleged
in Citation No. 712093. Respondent has once before violated section 75.512
alleged in Order No. 712701. Section 75.512 refers to a general requirement
of taking equipment out of service if it is not in safe operating condition.
A previous violation of section 75.512 does not mean that respondent has
necessarily previously failed to provide brakes for its tractor used as a
man trip.
The third aspect of the violations which merit acceptance of the settlement agreement is that a small mine producing only 134 tons of coal per day
is involved. Consequently, moderate penalties are appropriate under the
criterion of the size of respondent's business. Finally, as I have noted
in the first part of this decision, respondent's financial condition is such
that it has requested more than the usual 30 days within which to pay the
settlement penalties agreed upon in this proceeding. In such circumstances,
four of the six criteria show that reduced penalties are appropriate with
to the three violations alleged in Docket No. KENT 79-370. Therefore, I find that the settlement agreement submitted by the parties in
Docket No. KENT 79-370 should be approved.
Docket No. KENT 80-131
The Proposal for Assessment of Civil Penalty filed in Docket No. KENT 80131 seeks assessment of civil penalties for 17 alleged violations. Citation
No. 712712 alleged that respondent had violated section 75.1704 by allowing
from 7 to 18 inches of water to accumulate in the main intake airway which
was also designated as an escapeway. The Assessment Office found the violation to have resulted from ordinary negligence, to have been moderately
serious, to have been abated in a normal manner, and proposed a penalty of
$180, whereas respondent has agreed to pay a reduced penalty of $60. The
motion for approval of settlement states in effect that the reduced penalty
is warranted because the violation was not as serious as it was considered
to be by the Assessment Office.
It should be noted in connection with the 17 violations alleged in
Docket No. KENT 80-131 that the Assessment Office has increased the assignment of penalty points under the criterion of history of previous violations

to either 15 or 17 so that every penalty is assessed a minimum amount of
$30 or $34 under that single criterion, whereas the Assessment Office
evaluated all other violations alleged in this proceeding by assigning
8 penalty points, or $16, to each violation under the criterion of history
of previous violations. Exhibit No. 45 in this proceeding shows that
respondent has not previously violated section 75.1704. Therefore, some
reduction in the penalties proposed by the Assessment Office is justified
with respect to the violation of section 75.1704 and as to most of the
violations alleged in Docket No. KENT 80-131.
Citation No. 712720 alleged that respondent had violated section 75.1100
by failing to provide 240 pounds of rock dust at a temporary electrical
installation. The Assessment Off ice considered the violation to have resulted from ordinary negligence, to have been moderately serious, to have
been abated in a normal manner, and proposed a penalty of $106, whereas
respondent has agreed to pay a reduced penalty of $35. The motion states
in effect that a reduction in the penalty is warranted because the violation was not as serious as it was considered to be by the Assessment Office.
Exhibit No. 45 shows that respondent has once before violated section 75.1100.
The Assessment Office attributed $34 of its proposed penalty to the criterion
of respondent's history of previous violations. I believe that no more
tnan $10 should be attributed to respondent's history of previous violations
when there is only one previous violation and a small operator is involved.
Citation No. 713477 alleged that respondent had violated section 75.S23-2(c)
because a force of more than 15 pounds was required to actuate the emergency
deenergization switch, or panic bar on respondent's No. 1 tractor. The
Assessment Office considered the violation to have resulted from ordinary
negligence, to have been serious, to have been abated in a rapid manner,
and proposed a penalty of $130, whereas respondent has agreed to pay a
reduced penalty of $60. The motion states that a reduced penalty is warranted because a mechanic had been working on the panic bar to improve its
responsiveness and that the violation was corrected in about 1-1/2 hours.
In such circumstances, it is obvious that respondent's negligence was not
as great as it was considered to be by the Assessment Office and a greater
allowance for the operator's rapid abatement than was made by the Assessment
Office is justified under the criterion of rapid abatement.
Citation No. 713478 alleged that respondent had violated section 75.523-2(c)
because a force of more than 15 pounds was required to actuate the panic bar
on respondent's No" 2 tractor, The Assessment Office considered this second
violation of section 75.523-2(c) to have resulted from ordinary negligence,
to have been serious, to have been abated in a normal manner, and proposed
a penalty of $140, whereas respondent has agreed to pay a reduced penalty
of $60. The same reasons as those given in the preceding paragraph warrant
a reduction in the penalty proposed by the Assessment Office. The Assessment
Office assigned 10 penalty points under the criterion of negligence for the
preceding violation of section 75.523-Z(c), but for some unexplained reason,
assigned only 9 penalty points for the second violation of that section.

1asf1

Also, the Assessment Office failed to consider that the second violation was
abated rapidly even though the mechanic succeeded in correcting both of the
violations within a time period of less than 4 hours, even though the inspector had given respondent until the following morning within which to achieve
compliance. The sort of erratic assessment procedure shown by the Assessment
Office in this instance makes one wonder why we should write hundreds of pages
to justify acceptance of penalties which are lower than those proposed by the
Assessment Office.
Citation No. 713479 alleged that respondent had violated section 75.1725
because the brakes on the roof-bolting machine were not operative. The Assessment Office considered the violation to have resulted from ordinary negligence,
to have been serious, to have been abated in a normal manner, and proposed a
penalty of $195, whereas respondent has agreed to pay a reduced penalty of $65.
The motion states in effect that the reduced penalty is warranted because
the violation was less serious than it was considered to be by the Assessment
Office. Additionally, Exhibit No. 45 shows that respondent has not previously
violated section 75.1725, so the Assessment Office's assignmentof $30 under
the criterion of history of previous violations is excessive.
Citation No. 713943 alleged that respondent had violated section 75.604
by failing to maintain four temporary splices on the coal drill's trailing
cable so that they would exclude moisture. The Assessment Office considered
the violation to have resulted from ordinary negligence, to have been serious,
to have been abated in a normal fashion, and proposed a penalty of $114, whereas
respondent has agreed to pay a reduced penalty of $37. The motion states in
effect that the reduced penalty is warranted. because the violation was not as
serious as it was considered to be by the Assessment Office. Also the Assessment Office attributed $30 of the penalty to respondent's history of previous
violations, whereas Exhibit No. 45 shows that respondent has not previously
violated section 75.604.
Citation No. 713944 alleged that respondent had violated section 75.316
because a water spray at the dumping point was inoperative. The Assessment
Office considered the violation to have resulted from ordinary negligence, to
have been moderately serious, to have been abated in a normal manner, and
proposed a penalty of $106, whereas respondent has agreed to pay a reduced
penalty of $20. The motion states in effect that a reduced penalty is justified because the violation was not as serious as it was considered to be by
the Assessment Off ice.
Citation No. 713946 alleged that respondent had violated section 75.517
because power conductors were exposed at four different places in the trailing
cable supplying power to the coal drill. The Assessment Office considered the
violation to have resulted from ordinary negligence, to have been very serious,
to have been abated in a normal manner, and proposed a penalty of $210 which
respondent has agreed to pay in full. The motion states that the Secretary's
position as to this violation is that it was very serious and resulted from
a high degree of negligence and that the Assessmen~ Office appropriately
determined that a relatively large penalty should be assessed in this instance.

1367

Citation No. 713947 alleged that respondent had violated section 75.512
because the roof-bolting machine did not have operative headlights on either
end. The Assessment Office considered the violation to have resulted from
ordinary negligence, to have been moderately serious, to have been abated
in a normal manner, and proposed a penalty of $106, whereas respondent has
agreed to pay a reduced penalty of $25. The m~tion states in effect that
a reduced penalty is warranted by the fact that the violation was not as
serious as it was considered to be by the Assessment Office.
Citation No. 713948 alleged that respondent had violated section 75.1100-2(e)
because 240 pounds of rock dust had not been provided at a temporary electrical
installation. The motion for approval of settlement requests that the Proposal
for Assessment of Civil Penalty in Docket No. KENT 80-131 be dismissed to the
extent that it seeks assessment of a penalty for this alleged violation
because, i f the hearing had been completed as to all alleged violations, the
evidence would have shown that 240 pounds of rock dust were available at the
temporary electrical installation here involved. That motion to dismiss will
be granted as hereinafter ordered.
Citation Uo. 713949 alleged that respondent had violated section 75.1100
by having turned off the water valve through which water was supplied to
the waterline running parallel to the belt conveyor. The Assessment Office
considered the violation to have resulted from ordinary negligence, to have
been moderately serious, to have been abated in a normal manner, and proposed
a penalty of $114, whereas respondent has agreed to pay a reduced penalty of
$38. The motion states that a reduced penalty is warranted because some
person had turned off the water valve for the waterline without respondent's
management knowing of it. The motion concludes, therefore, that the violation
did not involve as much negligence and was not as serious as it was considered
to be by the Assessment Office.
Citation No. 713950 alleged that respondent had violated section 75.512
because a rear light on a tractor was inoperative. The Assessment Off ice
considered the violation to have resulted from ordinary negligence, to have
been serious, to have been abated in a normal manner, and proposed a penalty
of $140, whereas respondent has
to pay a reduced penalty of $46. The
motion states in effect that the reduced penalty is warranted because the
violation was not as serious as it was considered to be by the Assessment
Office.
Citation No. 713951
that respondent had violated section 75.1100-2
because it had failed to provide as much fire-fighting equipment for the
working section as was required. The Assessment Office considered the violation to have resulted from ordinary negligence, to have been'moderately
serious, to have been abated in a normal manner, and proposed a penalty of
$130, whereas respondent has agreed to pay a reduced penalty of $42. The
motion states in effect that the reduced penalty is warranted because the
violation was not as serious as it was considered to be by the Assessment
Office.

Citation No. 714902 alleged that respondent had violated section 75.200
because it had fai,led to provide a bar of suitable length for prying down
loose materials from the roof. The Assessment Office considered the violation to have resulted from ordinary negligence, to have been very serious,
to have been abated in a normal manner, and proposed a penalty of $240,
whereas respondent has agreed to pay a reduced _penalty of $40. The motion
states in effect that the violation did not involve nearly as much negligence or gravity as was attributed to it by the Assessment Office. It is
noted that pry bars of suitable length are located throughout the section
and sometimes are removed from the roof-bolting machine where one is normally
kept. The fact that respondent achieved compliance by providing an adequate
bar within 10 minutes after the violation was cited shows that bars were
readily available and indicates that respondent was entitled to a maximum
reduction of penalty points under the criterion of rapid abatement.
Citation No. 714903 alleged that respondent had violated section 75.503
by failing to maintain a shutt'le car in permissible condition-. The Assessment
Off ice considered the violation to have resulted from ordinary negligence,
to have been serious, to have been abated in a normal manner, and proposed
a penalty of $160, whereas respondent has agreed to pay a reduced penalty
of $53. The motion states in effect that the reduced penalty is warran~ed
because the violation was not as serious as it was considered to be by the
Assessment Office in view of the fact that no methane has ever been detected
in respondent's mine.
Citation No. 714904 alleged thcrt respondent had violated section 75.503
because it had failed to maintain the roof-bo.lting machine in a permissible
condition. The Assessment Office considered the violation to have resulted
from ordinary negligence, to have been moderately serious, to have been abated
in a normal manner, and proposed a penalty of $122, whereas respondent has
agreed to pay a reduced penalty of $40. The motion states in effect that
the reduced penalty is warranted for the same reasons given in the preceding
paragraph.
Citation No. 714878 alleged that respondent had violated section 75.200
because several timbers had been dislodged and not replaced along the mantrip
and haulage roadway. The Assessment Office considered the violation to have
resulted from ordinary negligence, to have been serious, to have been abated
in a normal manner, and proposed a penalty of $180, whereas respondent has
to pay a reduced
of $59. The motion states in effect that
the reduced penalty is warranted because the violation was not as serious
as it was considered to be by the Assessment Office. The inspector's statement evaluating negligence and gravity shows that he thought the violation
was very serious. 'The only basis for allowing a reduction in the penalty of
$180 proposed by the Assessment Office in this instance is that a small operator is involved and that its financial condition is poor. I am approving
the settlement agreements in this consolidated proceeding largely for the
reasons stated in the preceding sentence.

It should be noted that when evidence is introduced at a hearing by
both
ies, an evaluation of the criteria based on that evidence becomes entirely different from the routine application of the formula
described in 30 C.F.R. § 100.3. The testimony of the various witnesses
provides the occurrence of violations with many nuances of negligence
and gravity which are not present apart from the impact of oral descriptions of events and responses by witnesses to detailed questions. The
hear
in this proceeding demonstrates the effect that a hearing has on
penalti.es determined on the basis of a formula as opposed to penalties
based o.n testimony given at a hearing. The total penalties of $538 proposed by the Assessment Office for the eight contested violations which
were the subject of the hearing were reduced in my bench decisions to a
total of $246, or only 45 percent of the total amount proposed by the
Assessment Office. The contested violations were not chosen by respondent
as being those as to which the inspectors might be especially vulnerable.
The eight contested violations just happened to be the first eight violations alleged by the Proposal for Assessment of Civil Penalty filed in
Docket No. KENT 79-264.
The 51 violations as to which settlements were reached involve a
reduction in the total penalties of $7)025 proposed by the Assessment
Office to $2,850, or only 40 percent of the amount originally proposed by
the Assessment Office. The fact that the settlement amount is very close
to the result which occurred with respect to the hearing held as to the
contested violations makes me believe that the settlement agreements
achieved a proper result in this proceeding with a great saving in hearing
time and expense to both the Government and to respondent.
\VHEREFORE, for the reasons herinbefore given) it is ordered:
(A)
is

The motion for approval of settlement filed on December 29, 1980,
ed and the settlement agreements in each docket are approved.

(B) r;•.:: r.10tions for dismissal of the Proposals for Assessment of Civil
Penalty are granted and the Proposals for Assessment of Civil Penalty in
Docket Nos. KENT 79-264, KENT 79-265, and KENT 80-131 are dismissed to the
extent that they seek assessment of civil penalties for the violations listed
below:
Docket No

KENT

Citation No. 712096 2/13/79 § 17 .1725(a)
Docket No. KENT 79-265
Citation No. 712729 2/28/79 § 77 .1301
Citation No. 712625 2/27 /79 § 75.400
Citation No. 712627 2/27/79 § 75.512

(Tr. 80)

Docket No. KENT 80-131
Citation No. 713948 5/15/79 § 75.1100-2(e)
(C) The Proposal for Assessment of Civil Penalty filed in Docket No.
KENT 79-264 is dismissed to the extent that it seeks assessment of a civil
penalty for a violation of section 75.303 because the Secretary failed to
prove that a violation of section 75.303 occurred (Tr. 61).
(D) Pursuant to the settlement agreements and my bench decisions, supra,
re5pondent shall, within 90 days from the date of this decision, pay civil
penalties totaling $3,096.00, of which an amount of $246.00 is attributable
to penalties assessed in my bench decisions and the remaining amount of
$2,850.00 is attributable to the settlement agreements hereinbefore described
and approved. The penalties are allocated to the respective violations
as follows:
Docket No

KENT

CONTESTED

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

Citation No. 712092 2/13/79 § 75.517
Citation No. 712094 2/13/79 § 75.303 (Dismissed)
Citation No. 712095 2/13/79 § 75.1725
Citation No. 712096 2/13/79 § 75.1725(a) (Dismissed)
Citation No. 712098 2 /13 /79 § 75.523
Citation No. 712099 2/13/79 § 75.400
Citation No. 712100 2/13/79 § 75.601
Citation No. 712703 2/13/79 § 75.200
Total Penalties Assessed in Bench Decisions

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

$

1.00
50.00
60.00
35.00
60.00
40.00
246.00

SETTLEMENTS
Docket No. KENT
Citation No. 712702 2/13/79 § 75.523
Citation No" 712704 2/13/79 § 75.517
Citation No. 712705 2/13/79 § 75.1722(b)
Citation No. 712706 2/13/79 § 75.313
Citation No. 712707 2/13/79 § 75.604 •••••O•••••o•••ee•••O
Citation No. 712708 2/13/79 § 75.604
Citation No. 712709 2/13/79 § 75.200
CitatiO'n No. 712710 2/13/79 § 75.503 "'
Citation No •. 712711 2/13/79 § 75.202
Citation No" 712714 2/13/79 § 75.202
Citation No. 712715 2/13/79 § 75.512
Citation No. 712716 2/13/79 § 75.316
*
Total Settlement Penalties in Docket No. KENT 79-264

...O<>Oll'•O"'<l'DOOO•••ooo1to

$

.................
. ....................
0

. . . . . . . . . . . . . . . . . . . ' •••

o•o•o••••OOOt>OO<il••••<>

lll01>oeoo.,.•o<>•OOO•o•oOO

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

.....................
ci•eooooo<>GOO•o••O•ooo
•

0

••

0

e

0

II

0

0

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

0

•

e

e

0

0

0

0

•

0

. ....
0

•••

e

$

106.00
90.00
60.00
17.00
30.00
30.00
30.00
20.00
30.00
30.00
17.00
12.00
472.00

Dcckc.t ~To. KENT 80-265
Citation No. 712717 2/13/79 § 75.1202 ••.••••.•••••••.••••
Citation No. 712718 2/13/79 § 75.316 ••••.••..•••..•••.•••
Citation No. 712724 2/22/79 § 75. 516-1 .................. .
Citation No. 712729 2/28/79 § 77.1301 (Dismissed) ......••
Citation No. 712725 2/23/79 § 75.503 ...•..••••.•.••••...•
Citation No. 712726 2/23/79 § 75.703 •...••.•......•..•••.
Citation No. 712727 2/23/79 § 75.1303 •.•••..•......•..•..
Citation No. 712728 2/23/79 § 75.1704 •...••...........••.
Citation No. 712625 2/27/79 § 75.400 (Dismissed) .•.••....
Citation No. 712626 2/27 /79 § 75.1306 ................... .
Citation No. 712627 2/27/79 § 75.512 (Dismissed) •.•......
Citation No. 712628 2/27/79 § 75.1704-2(d) •••....•......•
Citation No. 712629 2/27 /79 § 75.1704 ................... .
Citation No. 712630 2/27/79 § 75.200 .................... .
Citation No. 712631 2/27/79 § 77.1001 ................... .
Citation No. 712632 2/27 /79 § 77 .1102 ................... .
Citation No. 712634 2/28/79 § 75.303 ••....•.........•.••.
Citation No. 712635 2/28/79 § 75.200 .................... .
Citation No. 712636 2/28/79 § 77.1104 .•..•.••............
Total Settlement Penalties in Docket No. KENT 79-265 ...•.

$

5.00
17.00
100.00
21.00
75.00
30.00
35.00
30.00

$

13.00
13.00
50.00
25.00
5.00
15.00
305.00
15.00
754.00

Docket No. KENT 79-370
Citation No. 712093 2/13/79 § 75.1100-l(a) •.•............
Order No. 712097 2/13/79 § 75.701 •.•.•..•..••••.•.••••..•
Order No. 712701 2/13/79 § 75.512 •..•....•..•........••..
Total Settlement Penalties in Docket No. KENT 79-370 •••.•

$

$

200.00
165.00
369.00
734.00

Docket No. KENT 80-131
Citation No. 712712 3/13/79 § 75.1704 ................... .
Citation No. 712720 3/13/79 § 75.1100 .•............•.....
Citation No. 713477 5/15/79 § 75.523-2(c) •..•.........•..
Citation No. 713478 5/15/79 § 75.523-2(c) .....•.•....•...
Citation No. 713479 5/15/79 § 75.1725 ....•.••.•....•..•••
Citation No. 713943 5/15/79 § 75.604 ...••.•..••..•..•..•.
Citation No. 713944 5/15/79 § 75.316 .................... .
Citation No. 713946 5/15/79 § 75.517 ••..•....•..•...•.•.•
Citation No. 713947 5/15/79 § 75.512 ..•...••••....••....•
Citation No. 713948 5/15/79 § 75.1100-2(e) (Dismissed) •.•
Citation No. 713949 5/15/79 § 75.1100 ••••••..••.•••••.. , •
Citation No. 713950 5/15/79 § 75.512 ••••.••••••••••••••••
Citation No. 713951 5/15/79 § 75.1100-2 ••.••.•••••••••••.
Citation No. 714902 5/15/79 § 75.200 .................... .
Citation No ..714903 .S/15/79 § 75.503 ••.•.•••.••.••.••••••
Citation No. 714904 5/15/79 § 75.503 .••••..••••••••••••.•
Citation No. 714878 5/15/79 § 75.200 ••.•.••.••••••.••••••
Total Settlement Penalties in Docket No. KENT 80-131 •••••
Total Settlement Penalties in This Proceeding •••••..•••••
Total Civil Penalties Assessed in This Proceeding •••••.••

$

38.00
46.00
42.00
40.00
53.00
40.00
59.00
$ 390.00
$2,850.00
$3,096.00

~C.~t;j!fo

1372

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

60.00
35.00
60.00
60.00
65.00
37.00
20.00
210.00
25.00

~

Distribution:

William F. Taylor, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Herman W. Lester, Esq., Attorney for Eddie Coal Company, Combs and
Lester, PSC, P.O. Drawer 551, 207 Caroline Avenue, Pikeville, KY
41501 (Certified Mail)

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

HAY 29 1981

Civil Penalty Proceedings

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

Docket No. WEVA 80-663
A.O. No. 46-02208-03046

v.

Docket No. WEVA 80-624
A.O. No. 46-02208-03044

DAVIS COAL COMPANY,
Respondent

Docket No. WEVA 80-635
A.O. No. 46-02208-03045V
Docket No. WEVA 80-589
A.O. No. 46-02208-03040
Marie No. 1 Mine
DECISION AND ORDER

Relying heavily on the Commission's prior approval of settlements
that permitted a 90% reduction in penalties, 1/ the parties initially
proposed settlement of three o.f the captioned-matters at a 25% reduction.
This was rejected on the ground that the operator's history of prior
violations shows token penalties are no deterrant to serious violations
by this operator 2/ and because Commissioner Lawson, Judge Melick
and this trial judge found Davis' claims of financial impairment
unpersuasive. See, Order Denying Settlement, issued November 12, 1980.
Compare, Davis Coal Company, 2 FMSHRC 3053, 3067-68 (Melick, J. 1980);
Davis Coal Company, 2 FMSHRC 18 (Kennedy, J. 1980); Davis Coal Company,
2 FMSHRC 619, 620 (Dissenting Opinion of Lawson, Commissioner).
The matter is before me now on the operator's unopposed request
to reconsider my order denying the motion to approve settlement
together with renewed motion to approve settlement of the 21 violations
charged in all four of the captioned matters at 90% of the amounts
initially assessed.
Davis Coal Company, 2 FMSHRC 619 (1980).
2/ As I have noted, "While the Act requires that adverse business
impact be 'considered', it does not require that it be given controlling
weight or that it cannot be outweighed by the countervailing interest in
continuing in business only those mining operations that promote mine
safety." Davis Coal Company, supra, 2 FMSHRC 18, n. 1.

1374

As the record shows, prior to 1980 Davis Coal Company enjoyed
what amounted to a prescriptive right to violate the Act with impunity.
This was based on its ability to persuade MSHA that a small operator who
exploits his mineral leases through the cover of a proprietary, nonprofit corporation is per se a candidate for a substantial (usually 90%)
remission of the penalties assessed. And this, despite the fact that the
proprietors (Mr. and Mrs. Davis) paid themselves handsome salaries and
provided, tax free and at the expense of the corporation, all the
prerequisites and amenities usually associated with the truly rich.
This is not to suggest there is anything improper or illegal about the
Davis operation. Only that an uncritical acceptance of Davis' plea
of poverty has served to continue in business and to encourage what is
clearly a marginally safe operation. In this connection, Mr. Davis
has furnished for the record his personal pledge to give immediate
attention to correction of the many conditions and practices in his
operation that result in serious safety violations and "to significantly
reduce future MSHA violations". This statement will be made a part of
the record in this proceeding and will be available as a measure of
Mr. Davis' good faith efforts to achieve compliance in future proceedings.
Based on an independent evaluation and de novo review of the
circumstances, including an evaluation of the-operator's solvency, and
his personal pledge to improve compliance, I find the settlement proposed
is in accord with the purposes and policy of the Act. To have brought
Davis to the point where he is willing to settle on the basis of payment
of 90% i~stead of a reduction of 90% reflects a commendable improvement
in attitude on his part and a victory for more effective enforcement
on the Commission's part. Davis still has a long way to go, but at
least for the purpose of this settlement, I am persuaded he is sincere
and intends to improve significantly his record of compliance.
A final word is warranted with respect to the financial data furnished.
A careful examination of the operator's comparative statement of assets
and liabilities for 1979 and 1980 as well as its comparative statement
of income and expenses for the same period dramatically demonstrates the
fallacy of the claim that the absence of profit or taxable income is a
reliable indicator of a small operator's inability to pay substantial
penalties and still continue in business. Davis has successfully operated
without showing a profit since 1976. The fact that the company apparently
walks on water is explained by its ability to finance its high debt load
with a healthy cash flow and an extended line of credit from the Bank
of Pikeville, its silent partner.
Thus, the comparative statements and tax returns both corporate
and individual show the principal stockholder and his wife paid themselves
salaries in 1980 totalling $75,000, have outstanding non-interest bearing
loans totalling almost $250,000 and own stock in another closely held
corporation worth almost $140,000. The profits or earnings retained by
the corporation to avoid the tax on dividends increased from $563,761
in 1979 to $867,499 in 1980. This resulted in almost doubling the net

worth of the corporation which as of December 31,. 1980 was $842,498.
A measure of the success of the technique of using the proprietary
corporation as an individual tax shelter is shown by the fact that the
Davis' joint federal tax return shows they took no individual deductions
against a taxable income of $71,261 in 1979.
The comparative statements also show the operator has a cash flow
of almost $3,000,000 a year, that itslong term liabilities are only
$260,533 and that the book value of its fixed assets are $940,168.
Finally a comparison of Davis' cash flow to its total debt shows a
favorable ratio of 1.5 to 1. ]./
I conclude, therefore, that the Davis Coal Company is a highly
solvent and profitable operation for its owners and the Bank and merits
no more or less consideration in the assessment of penalties than any of
its highly profitable publicly held competitors.
The premises considered, it is ORDERED that the motion to approve
settlement be, and hereby is, GRANTED. It is FURTHER ORDERED that the
penalties be allocated on the basis of
assessed and that the operator pay the
agreed upon, $3,720, within forty-five
of this order. Finally, it is ORDERED
captioned matters be DISMISSED.

Accounting research shows this is one of the most reliable
predictors of financial success or failure. Beaver, "Financial Ratios
As Predictors of Failure", Supp. to Vol. 4, Journal of Accounting
Research, pp. 71-127 (1966).

137h

Distribution:

Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Edward Fitch, Esq., U.S. Department of Labor, Offic~ of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Paul Pinson, Esq., P.O. Box 440, Williamson, WV 25661 (Certified Mail)

1377
*U S GOVERNMENT PRINTING OFFICE: 1981 341·638/4356