CCMMISSION DE:ISIONS

This section contains all Decisions of the Camlission issued through
March 31, 1979 together with other Orders which, in the opinion of

the C-eneral Counsel, may be of precedential value or interest.

For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402. Subscription Price: $100 a year domestic;
$12-5 a year foreign

.,,,,._.........,.

.-

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1130 K SH"!:::-:-. ;~W. SUlTE 229
WASHINGTON. DC "ZOOOG

CHRISTOPHER COAL COHPAl'f'l

Decided October 25, 1970
App~al
Christopher Coal Company from a decision dated
Octr.he?r 18, 1976, in Docl:c.t No. NORG 76-8-P, by Administrative L<lw
Jolm F. Cook, assessing a civil monetary penalty of $6,500
for n violation of 30 CFR 75.329 contained in an imminent d.::.nger
order of withdrawal issued at appellant's Osage No. 3 Hine.

Af finnedo
A?PEARl·1XCES: Alan B. Mollohan, Esq. , Rose, Schmidt, Dixon, Haseley,
wnyte cind Harde.sty, Attorney for appellant, Christopher Coal Company;
3chn lL O'Donnell, Esq., Attorney for appellant> Nine Safety and
lth Administration (HSHA) formerly Mining Enforceillent and Safety
Administration (HESA).

}!;:wing reviewed the record and considered the brief of the appellant
and response thereto, the Commission finds that Christopher Coal Company
has n.ot demonstrated any reason why the findings of fact, conclusions
1o.w, and decision of the Administrative Law Judge should not be
affirmed. The record supports the decision and order of the. Judge and

':.he a:110unt assessed for the violation is reasonable and in accord with
the intent and purposes of the Federal Coal Mine Health and Safety
of
Furthermore, the arguments made on appeal to the Commission
and fairly considered by the Judge in his decision

ORDER
WHEREFORE, pursuant to the authority contained in Section 109(a)(3)
of the
Coal Mine Health and Safety Act of 1969; Section llO(i)
of the Federal Mine Safety and Health Act of 1977- and Section 30l(c) (3)
cf
A:nendraents Act .
1977, IT IS ORDERED:
that the decision of the Administrative Law Judge
issued October 18~ 1976, assessing Christopher Coal
Company a civil penalty in the amount of Six Thousand
Hundred Dollars ($6,500.00) IS HEREBY AFFifilIBD; and

:nnc Christ8pher Coal

Cc~peny o~v

:he ci~il

penalty assessed en or before 10 d~ys
~a:c

of

f=o~

che

~his ci~cisicn.

A.E. Lawson,;. Cornrnissioner

~\\ ~Qt \l::t• \\IQ
Qu

o1..x

Marian Pearlman Nease, Corr:missioner
\

f

'./

..;"'~"-'''

·<'J·~· .:~ i·.;

1730 K STREET NW, 6TH FLOOR

WASHINGTON, D.C.

November 27, 1978

20006

Civil Penalty Proceedings

.. ECRETARY OF LABOR,
MINE SAFE.TY AND HEALTH
ADND\ISTR..\TION (NSHA) ,

Docket Nos. PITT 78-156-P
PITT 78-157-?
PITT 73-396-P
PITT 78-397-P
PITT 78-406-P
PITT 78-407-P
PITT 78-408-P
PITT 78-409-P
PITT 78-410-P

v.

REPUBLIC STEEL CORPORATION,

Banning Mine
Russelton Mine
Clyde :Mine
Newfield Nine

DIRECTION FOR REVIEW AND ORDER
The decisions of the Administrative Law Judge, approving a proposed
settlement, is directed for review. It is found that the Judge's decisions may be contrary to law or Commission policy, and that a novel
question of policy has been presented. The issue is:
What reasons and facts support the Judge's··
determination that the proposed settlements should be approved?
The Commission cannot ans·wer this question until the record
reveals the Judge's reasons for, and the·facts supporting
his approval of the settlement. Accordingly, the case is remanded to
the Judge for him to make a statement of reasons for approving the
settlement
and a statement of the facts of record that supported
his determination. The Judge shall also enter the settlement agreement into the record.
~·
/)
. ,ytJv.rYJ\JL VL ~u~
Jero~~·R. Waldie, Chairman ·

RicPfS~~] ~~;:~
.· ~- f"~~'fVJ/Jmmissioner

L-,:: :. ,. .,.,. _

i - (~
~·
A. E. Lawso ', Commissioner
I

.

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'- ~(f~J ( JJ \DD~~·'aJ.i w) vu:a v
Marian Pearlman Nease, Commissioner

1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

January 3,. 1979

SECRETARY OF LABOR

Docket No. PITT 78-97-P

v.
PENN ALLEGH COAL COMPANY, INC.:

DIRECTION FOR REVIEW AND ORDER
The petition for discretionary review filed by the
Secretary of Labor is granted.
The issues on review are
those raised by the Secretary's petition, including:
1)

Whether the administrative law judge erred
in concluding that the standard at issue, 30 CFR
§75.1710-l(a) is "null, void and unenforceable";

2)

Whether the administrative law judge committed
prejudicial errors of procedure by allegedly:
(a) placing the burden of proving available
canopy technology on the Secretary; (b) refusing
to allow the Secretary' to present certain evidence
regarding available canopy technology; (c) taking
official notice, sua sponte and without notice,
of the record and decision in Florence Mining Co.,
No. M. 76-115, etc.
(October 31, 1977); and
failing to provide the Secretary with a reasonable opportunity to submit countervailing records
and decisions for consideration.

The Secretary has also filed a motion to strike .arid
expunge from the record a document issued by the administrative law judge on May 11, 1978, captioned, "Supplemental
Memorandum Opinion on Invalidity•of Canopy Standard. 11 For
the reasons ~hat follow, the motion is granted.

A hearing in the present case was held on April 6,
1973.
At the conclusion of the.hearing, the judge read into
the rec-0rd his decision and order.
On April 7, 1978, the
judge issued a written "Memorandum Decision" reiterating the
previous day's bench decision and adopting and confirming
that decision.
On April 12, 1978. the official record of
the proceedings was certified to the Commission in accordance with Interim Procedural Rule 56. ~/
On May 5, 1978, twenty-eight days after the issuance of
the written decision, the Secretary filed his petition for
discretionary review with the Commission.
On May 11, 1978,
the administrative law judge issued the supplemental memorandum opinion that is the subject of the Secretary's motion
to strike.
The supplemental memorandum opinion states that it was
"filed to set forth more fully the Presiding Judge's views
with respect to his finding of April 6, 1978, declaring the
improved safety standard (30 CFR 75.1710-l(a)) relating to
the use of canopies on electric face equipment null, void
and unenforceable. 11 The supplemental opinion sets forth at
length the judg~'s views concerning the background behind
the adoption of the standard at issue, the valLdity of that
standard as adopted, and the authority of the judge to rule
on the standard's validity.
Section 113(d)(1) of the Federal Mine Safety and Health
Act of 1977 !/ provides:
An administrative law judge appointed oy the
Commission to hear matters under this Act shall
hear, and ~ake a determination upon, any proceeding instituted before the Commission •.•
assigned to such administrative law judge ..• ,
and shall make a decision which constitutes his

1/

29 CFR §2700.56.
This rule provides:
"Within 5 day·s
after a written decision has been rendered by a Judge, the
docket clerk shall certify the official record of the
proceedings to the Commission. 11

!/

30 U.S.C. §801 et~·

(her~inafter "the Act").

2

final disnosition of the proceedings.
!he
decision of the administrative law judge
of the Commission shall become the final
decision of the Commission 40 davs after its
issuance unless within such period the Commission has directed that such decision shall
be reviewed by the Commission....
(Emphasis
added.]

Section 113(d)(2)(A)(i) of the Act provides:
Any person adversely affected or aggrieved by a
decision of an administrative law judge, may file
and serve a petition for discretionary review by
the Commission of such decision within 30 days
after the issuance of such decision~ .••
[Emphasis
added.]
It is clear that the written decision issued on April
7, 1978, is the "decision" constituting the judge's "final
disposition of the proceedings" within the meaning of
secti~n 113(d) of the Act. ll
The' decision was issued by
the judge and served upon the parties and the Commission;
the record was ~ertified to the Commission; and the Secretary
filed a petition for discretionary review with the Commission
within the statutorily prescribed period.
In these circumstances, the Commission will not consider the further discussion of the issues undertaken by the judge and issued as
a "supplemental memorandum opinion".
The statutory scheme for Commission review of judges'
decisions eontemplates that the first opinion of ·a judge
announcing his final disposition of the proceedings will
provide guidance to the aggrieved parties in the drafting of
their petitions for discretionary review.
Section 113(d)
(2)(A)(iii) of the Act requires that objections in a
petition to the judge's decision be supported ~y detailed
~/

See also Interim Rules of Procedure 54 and 55,

§§2700.54 and 55.

3

29 CFR

citations. to the record and legal authorities, and confines
Commission review to questions raised by the petition, where
the direction only grants a petition.
The filing by the
judge of multiple opinions impedes the efforts of the
aggrieved parties to timely comply with the requirements for
petitions, encourages the hasty drafting of inferior petitions,
and thus impairs the usefulness of this crucial document to
the Commission.
Moreover, the judge 1 s accion may create
confusion ,as to the status of the issues, the deadiines for
filing and granting of petitions and the exercise by the
Commission of its power to direct review on its own motion.
In shoit, the judge's action threatens the smooth functioning of the Commission's review process.
We further observe that the judge's issuance of a
supplemental opinion may leave the impression that he failed
to fully consider the case when he issued his first opinion,
and that his first opinion did not adequately state the
reasons for his decision.
It may also unnecessarily detract
from the appearance of his impartiality if his supplemental
opinion anticipates and, fortuitously or not, "rebuts"
contentions made.in a petition for discretionary review.
For these reasons,
Secretary is granted.

the motion to strike filed by the

J(bal~e~n
Richard V. Backley, C6mmissioner

A. E. Lawson, Commissioner

'-\~
\~\\\W ~
Marian Pearlman Nease, Commissioner

1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

January 10, 1979

Docket No. HOPE 76-16

UNITED MINE WORKERS OJ

Appeal No. IBMA 76-101

AMERICA (UMWA),
Applicant-Respondent

:

v.

:

WESTMORELAND COAL COMPANY,
Respondent-Appellant
DECISION
This appeal from an administrative law judge 0 s decision
was pending before the Interior Department Board of Mine
Operations Appeals as of March

8~

1978.

before the Commission for disposition.
Mine Safety and Health Amendments Act of
§

Accordingly, it is
Section 301, Federal
~977,

30 U.S.C.

961.
At issue is an application for compensation filed by

the United Mine Workers of America (UMWA), as authorized
representative of the affected miners, pursuant to

§

llO(a)

of the Federal Coal Mine Health and Safety Act of 1969.

1/

In the decision from which this appeal was taken, Administrative Law Juage Franklin P. Michels concluded that the miners
involved were entitled

t~

compensation under

§

llO(a)

!/ of

30 U.S.C. § 801 et~·, as amendedt hereafter "the Act."
Section llO(a) of the Act provides:
"If a coal mine or area of a coal mine is closed by an
order issued under section 104 of this title, all miners

1/
2/

::he Act.

For the reasons that iollow,

~he

judge's decision

is affirmed.
The claim for compensation arises as a result of the
issuance of a withdrawal order under § 104(a) of the Act.

The withdrawal order issued at 4:00 p.m. on June 11, 1975.
It is not disputed that the miners working during

the shift

in which the withdrawal order issued are entitled to compensation and the entitlement of these miners is not an
issue on appeal.

11

Rather;

the dispute on review concerns

whether the miners on the shift that followed are entitled
to compensation.
f n . J:j

4/

( con_ t 1 d )

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
for which 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 sue h 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"
(emphasis added).
11 At the hearing the parties stipulated .to the dismissal
of the compensation claim for miners idled during the shift
in which the withdrawal order issued subject to Westmoreland' s payment to those miners of stipulated amounts.
The
judge ordered payment of the stipulated amounts and no issue
concerning this payment is raised on appe&l.
ii In its answer to the application for compensation, Westmoreland denied that the withdrawal order idled any persons
on the shift that followed and stated that "mine management"
had decided to "idle the mine on that shift."
Subsequently
however, the parties· stipulated to•the identity of the miners
on this shift who were idled and the amounts to be paid to
these miners if the issues regarding the time of the termination of the withdrawal order are resolved in their favor.
Joint Exhibit B; Tr. 2.

2

Seccion llO(a) of

~he

provid~s

Act:

that

i~

a

5 104

withdraw al order a.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 .

• for the period

they are idled, but for not more than four hours of such
shift. n

Thus,

in determining whether miners are entitled to

compensation under this provision,

the time at which the

withdrawal order was terminated must first be determined.
At the hearing in the instant

case~

the time of the

termination of the withdrawal order was disputed by the
parties.

The Order of Termination was entered into evidence

as Joint Exhibit D.
11:00 p.m.

a~

The Order of Termination specified

the time of its issuance.

The dispute between

the parties centered on the significance of the time noted
on the Order of Termination.

The UMWA contends that the

11:00 p.m. notation referred to the time at which the Secretary's inspector determined that the dangerous condition no
longer existed and .orally authorized the resumption of
operations.

Westmoreland contends that the notation referred

to the time at which the termination order was signed by the
inspector after he exited

f~om

Westmoreland's office, and,

the mine and arrived at

ther~fore,

that the inspector's

earlier, undergrpund, oral termination of the withdrawal
order necessarily occurred before 11:00 p.m.
The conflicting evidence of the parties on this issue
is summarized adequately in the judge's decision.

3

After

enc~s

:herefrom, Judge Michels concluded that a prepender-

ance of the evidence establishes thac the withdrawal order
~as

terminated at 11:00 p.m.

This factual conclusion is

supported by substantial evidence and we will not disturb i t
on review.

Therefore, we affirm Judge Michaels' conclusion that

the withdrawal order at issue was terminated at 11:00 p.m.
on June 11, 1975.
Westmoreland contends that the conclusion is'based on
hearsay.

If the hearsay claim is to the testimony of the

inspectcr, it cannot be sustained.

The inspector was pre-

sent at the hearing and available for cross examination.
The fact that he may have refreshed his recollection from
his notes is immaterial.
Having concluded that the withdrawal order was terminated
at 11:00 p.m., it remains to be ~etermined whether the order
was terminated "prior to the next working shift."

Based on

the evidence of record, Judge Michels concluded that the
11

next working shift" started at 11:00 p.m.

Therefore, he

concluded that since the withdrawal order was terminated at
11:00 p.m., it had not been terminared prior to the next
working shift.

On the facts of the present case, we agree

with the judge's conclusion that the subject termination
order, issued at 11:00 p.m., did not issue "prior to"
Westmoreland's "next working shift. 11

4

We find it unnecessary

to our decision _in this case, however.

:o

address·t~e

broarier

question of what constitutes the beginning of a "shift 11 .:i.s
chat term is used in § llO(a) of the Act.
Accordingly~

the decision of the administrative law

judge is affirmed.
J erdme R.
,

Waldie,

Chairman

Nease,

5

Commissioner

1730 K STREET NVJ, 6TH FLOOR

WASHINGTON, D.C.

January 29, 1979

20006

SECRETARY OF LABOR,
Docket No.

BARB 77-245-P

v.

PEABODY CO

COMPANY,
DECISION

On October 11, 1978, the Commission granted a petition for
review filed by Peabody Coal Company.
Peabody
asserts that Administrative Law Judge John ~- Cook erroneously
found Peabody to have violated 30 CFR §75.202, and that the
$8,000 penalty assessed by the Judge is too high.
We hereby
affirm the Judge's decisiori and order.

~iscretionary

The sta,ndard requires that "overhanging or loose faces
and ribs shall be taken down or supported."
We are of the
opinion that Judge Cook correctly concluded that Peabody
violated this requirement.
The term "rib" as used in the
standard is broad enough to cover the factual situation
presented here.
Peabody's contention would limit the
required support or removal to ribs consisting solely
of coal.
This interpretation of the standard would
frustrate its purpose which is to provide safety to the
miners in all active underground roadways, travelways
and working places.

IT IS SO ORDERED.

()~ f_ . iA;ud, ·._

~e R. Waldie, Chairman
C:~lu;i-~-t--. c.z: --./S:z-utLL.

A. -E.

Lawsoti,

Commissioner

~ \~\~l\ ~d~ nHlu MrblP
Marian

Pea~lman

l/

Nease,

Commissioner

1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

March 6, 1979

ALEX...\lrnER BROTHERS,

INC. ,
Petitioner

v.

Docket Nos. HOPE 78-161-167

SECRETARY OF LABOR,
~1INE SAFETY AND HEALTH

ADMINISTRATION (MSHA)
DECISION
On March 1, 1978, Administrative Law Judge L. K. Luoma dismissed
applications for review, filed by Alexander Brothers, Inc., of withdrawal
orders issued under the Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. §801 et seq. (1976) (amended 1977). The Judge found that the
applications were not timely filed under section 105(a)(l) of that Act,
and held, in accordance with precedents of the Interior Department's
former Board of Mine Operations Appeals, 1/ that he could not extend the
thirty day deadline of section 105(a)(l).- On October 11, 1978, we
granted a petition for discretionary review filed by Alexander Brothers.
We have considered the arguments of the parties, J:../ and we conclude
that Judge Luoma correctly decided this case for the reasons he assigned.
His order of dismissal is accord· gly affirmed.

R~

Freeman Coal Mining Co.,
, 21, 1971-73 OSHD ,[15,367 (1970);
Consolidation Coal Co., 1IBMA131, 1 , 1971-73 OSHD ns,377 (1971);
Jones & Laughlin Steel Corp., 5 IBMA , 2 (1975).
.
]:_/,
On January 31, 1979, the Commission denied a motion by Alexander
Brothers to file a reply brief. On February 15, 1979, Alexander Brothers
moved for reconsideration of that denial, and attached a brief in support
of its motion. Neither the motion nor the brief present adequate reasons
why the Commission should reconsider and reverse its previous ruling.
The motion to reconsider is therefore denied.

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

March 9, 1979

20006

SECRETARY OF LABOR,
HE'iE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On behalf of John Koerner,
Applicant

No.

DE~N

78-564

v.
ARCH MINERAL COAL COMP Al'lY,

Respondent
DIRECTION FOR REVIEW AND ORDER
The decision of the Administrative Law Judge, dated February 7,
1979, is directed for review. We find that the Judge 1 s decision may be
contrary to law or Commission policy, or that a novel question of policy
is presented.
On September 12, 1978, the Secretary filed with the Commission his
findings that John Koerner had brough't a complaint of unlawful discrimination
by Arch Mineral Coal Company, and that the complaint was not frivolously
brought. He moved that Mr. Koerner be reinstated to· his former position,
or equivalent position, until a final Commission order on the complaint
is issued. The motion was granted. On January 31, 1979, the Secretary
filed a motion to vacate the order of reinstatement. The only stated
basis for the motion was that "the parties have successfully negotiated
a settlement of all matters formally in issue. 11 Judge Malcolm P. Littlefield
noted the ground for the motion, stated that "[a]s a result [of the
settlement], continuation of the reinstatement order serves no p~rpose",
and granted the motion to vacate. The terms of the settlement were not
entered into the record; the record also does not disclose whether
Mr. Koerner agreed to or acquiesced in the motion to vacate the reinstatement order.
The issue is:

Were there sufficient grounds to grant the motion?

The Commission concludes that the record should be supplemented
we resolve this issue. Accordingly, we remand this case to
Judge Littlefield for the limited purpose of supplementing the record
bef~re

~.;ich

::.:-:.swe::-s

seccle~enr

:::ocior;.

~o

"'..:.O

~h:=

follo~·1ing

a~reemen~?

Did ~r.

qu~sti.o:is:

~oerner

~·Jhat are :he ::er:ns 02: :t:e.
agree co or acquiesce in :he

vac.2te ::he orde.'!' of reinsr.:ateme!lt·? Tfte Cornmission otb.er~,,~ise

=ec2ins jurisdiccion of this case. The par;:ies neeci not file brief 3
un~'23S ::he Commission requests the!!l LO.·\
i

i1.A_A.N",_.!,

es tr

L/
, ,· z -:;??·iz/-~
~ .........
/

.r

A E./Lafson, Commissioner

\~X\\mw, \{v\IJLlJllOIA \\J!_O_.L~
Hariavearlman Nease, Commissioner

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

RAY MARSHALL, SECREI'ARY OF LABOR
MINE SAFEI'Y AND HEALTH
ADMINISTRATION (MSHA) I

Civil Penalty Proceeding
IXJcket No. PIKE 78-70-P

Petitioner

(Assessm:mt Control No.
15-04020-2013V)

v.
WOLF CREEK COLLIERIES CO:MPANY,
Fespondent

March 26, 1979

No. 4 Mine
DECISION

This case arises under the Federal Coal Mine Health and Safety Act
of 1969. 1_/ The issue is whether the validity of an order of withdrawal
under section 104(c)(2) can be challenged in a proceeding under section
109(a)(3) for assessment of a civil penalty for the alleged violation
cited in the order. Wolf Creek did not request review of the order of
withdrawal pursuant to section l05(a); rather, the first time it questioned the order's validity was at the penalty assessment hearing. The
Administrative Law Judge vacated the withdrawal orqer on the ground that
"the record in this case does not disclose the precedential notice and
order cited by the inspector in his withdrawal order."']:_/ Although he
vacated the withdrawal order, the Judge did find a violation of a mandatory safety standard and assessed a penalty of $300. In assessing a
penalty the Judge mitigated the amount because he had vacated the withdrawal order in which the violation was cited.
We have reviewed the decision in light of previous decisions of the
Interior Department's former Board of Mine Operations Appeals interpreting the 1969 Act. Section 109(a)(3) provided, in relevant part, that
"[a] civil penalty shall be assessed by the Secretary [of the Interior]
only after ... a public hearing and the Secretary has determined •••
that a violation did occur, and the amount of the penalty which is
warranted, ••. 11 ] / The Board consistently held that the validity of a

±./

30 U.S.C. § 801 et~· (1976) (amended 1977) ("the 1969 Act"). This
case presents no issue under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et~· (1978).
];_/ Section 104(c)(2) of the 1969 Act provided, in relevant part:
"If a withdrawal order with respect to any area in a mine has been
issued pursuant to paragraph (1) of this subsection [referred to as
"precedential notice and order" by the Judge below], a withdrawal order
shall promptly be issued by an authorized representative of the Secretary who finds upon any subsequent inspection the existence in such mine
of violations similar to those that resulted in the issuance of the
withdrawal order under paragraph (1) of this subsection ••. 11
]./ In determining the amount of penalty warranted, section 109(a)(l)
set forth six statutory criteria which the Secretary of the Interior
was to consider.

~,.·i:h~ra~.:-al
.
order .:!.s not an issue .in a penalt:y 9roceeai.=ig under .:;cc: ~0-::1
lC9 ~nd th2.t it is error r:o "1.racats an order in 3uch ~enalt~; ?ro~c.eci::ng~

Zeider Coal Comuanv, 2 IB~fA 216, 223-224 (1973); Plateau ~·lining Cor.manv,
2 IBHA 303 (!.973); Buffalo }!i!ling Comnanv, 2 IB:!.:\ 327 (1973);
.\.,--;;e.cic:m Coal Cornoration, 3 IB!::f.A 93, 120 (1974). i;e concur in che
Zoara's interpretation oi the 1969 Act.

Accordingly, the withdrawal order (No. 1-TF, January 29, 1976) is
reinstated. This case is remanded for reassessment of the penalty
without consideration of the vacated order as a micigating faccor.

,,

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\..,I~ ('-

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"' ,...·~
t'>

•

F

-2-

79-3-11

;"'!~iiERAI. MINE· SAFETY AND HEALTH REVJEW COMMl.S5iON
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

March 27, 1979

SECRETARY OF LABOR,
ex rel. ROY A. JONES
Docket No~ NORT 78-415

v.

JAMES OLIVER AND WAY~E SEAL
d/b/a OLIVER MINE MAINTENANCE COMPANY
DIRECTION FOR REVIEW AND ORDER
The petition for discretionary review filed by the Secretary of
Labor is granted. The issues on review are those raised by the petition,
including whether the Administrative· Law Judge has authority to censure
attorneys.
On February 16, 1979, Administrative Law Judge Joseph B. Kennedy
issued an "Order of Censure" against two attorneys. The order contained
various findings by the Judge in support of his conclusion that the attorneys had engaged in misconduct. The Judge made his findings a matter of
record, censured the attorneys, and sent a copy of his order to the
Commission. The order was issued by the Judge even though the Commission
had not made a determination under Interim Rule 5(b), 29 CFR §2700.S(b)
(1978), that disciplinary proceedings were warranted.• 1/
The Commission has cautioned Judge Kennedy that administrative law
judges lack the authority to censure attorneys in such circumstances.
In re
No. D-78-1 (November 15, 1978). In Kale we held that a
1=_/

Interim Procedural Rule S(b) states:
Whenever in the discretion of the Commission, by a majority
vote of the members present and voting, the circumstances reported
to the Commission warrant disciplinary proceedings against an
individual who is practicing or has practiced before the Commission,
the Commission shall issue a show cause order to such individual
and refer the matter to a Commission panel, a Commissioner, or a
Judge for hearing and decision. The hearing tribunal appointed by
the Commission shall give the individual adequate notice of, and
opportunity for reply and .heJring -0n, the specific charges against
him, with opportunity to present evidence and cross-examine witnesses.
The hearing tribunal shall render a decision incorporating findings
and conclusions and issue either (1) an order dismissing the charges
or (2) an appropriate disciplinary order, which may include reprimand, suspension or disbarment from practice before the Commission.

/

determination by the Co!l'.mission that disciplinary proceedings are warranceci must precede an order of censure. The Judge's order here was
therefore not authorized, and is vacated. ]:./ That Judge Kennedy apparently
does not share this view of his authority does not justify his action.
An administrative law judge must follow the rules and precedents of the
Commission. 3/ We expect that in the future Judge Kennedy will follow
th:is
iple.
We also observe t:hat procedural unfairness compounded the Judge's
errors. Had Interim Rule S(b) been followed here, the two attorneys
would have been accorded elementary procedural safeguards: notice of
the charges, an opportunity to reply and to be heard on them, and to
present evidence and to cross-examine witnesses. The Judge accorded the
two attorneys none of these rights.
The Commission will not countenance any further such abuse of its
processes. It will not permit a Judge to discipline attorneys unless
its rules of procedure and their procedural safeguards are followed.
Accordingly, the order of

Nease, Connnissioner

±_I

The Secretary additionally requ
the Judge's findings be
expunged from the record. Inasmuch
e Judge's order of censure has
been so widely disseminated, expunge en would· remove from our records
the evidence of the Judge's error an
ight deny to the censured attorneys
the protection that we intend for our order to provide. We are therefore
not inclined to grant this relief.
1J Gindy Manufacturing Co., 1 OSHC 1717, 1973-1974 OSHD ,[17, 790 (1974)
(Occupational Safety and Health Review Connnission);
Iowa Beef Packers,
Inc., 144 NLRB 615, 54 LRRM 1109, 1112 (1963); Insurance Agents' Inter!lational Union, 119 NLRB 768, 41LRRM1176, 1178 (1957) •. See also
Ruhlen, Manual for Administrative Law Judges, 66-67 (Administrative
Conference of the United States, 1974); and 5 U.S.C. §556(c).

2

79-3-12

ADMINISTRATIVE LAW JUDGE DOCISIOOS
March 1, 1979 - March 31, 1979

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

March 1, 1979

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (HSHA),
Petitioner
v.
WESTEil.N STATES COAL CORP.,
Respondent

Civil Penalty Proceedings
Docket No. DENV 78-521-P
A.O. No. 42-00085-02020
Docket No. DENV 78-522-P
A.O. No. 42-00085-02021
Docket No. DENV 78-523-P
A.O. No. 42-00085-02018V
Docket No. DENV 78-524-P

A.O. No. 42-00085-02019V
Dog Valley Mine
DECISIONS
Appearances:

Edward H. Fitch, Trial Attorney, Department of Labor,
Office of the Solicitor, Arlington, Virginia, for the
petitioner;
Robert L. Morris, Esquire, Davis, Graham & Stubbs,
Denver, Colorado, for the respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern petitions for assessment of civil penalties filed by the petitioner against the respondent on July 27 and
28, 1978, pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 820(a), charging the respondent with
several mine safety violations issued pursuant to the 1969 Federal
Coal Mine Health and Safety Act. Respqndent filed timely answers in
the proceedings, asserted several factual and legal defenses, and
hearings were held in Salt Lake City, Utah, on November 15, and 16,
1978. Respondent filed proposed findings and conclusions and a brief,
and the arguments contained therein have been considered by me in the
course of these decisions.

Issues
The principal issues presented in these proceedings are (1)
whether respondent has violated the provisions of the Act and implementing regulations as alleged in the petitions for assessment of
civil penalties filed in these proceedings, and, if so, (2) the appropriate civil penalties that should be assessed against the respondent .
for each 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 these decisions.
In determining the amount of a civil penalty assessment., section
llO(i) of the Act .requi~es 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.
Applf,cable Statutory and Regulatory Provisions
1. The Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. § 801 ~~.,now the Federal Mine Safety and Health Act
of 1977, P.L. 95-164, effective March 9, 1978.
2. Sections 109(a)(l) and (a)(3) of the 1969 Act, 30 U.S.C.
§§ 819(a)(l) and (a)(3), now section llO(i) of the 1977 Act.
Discussion
The alleged violations and applicable mandatory safety standards
in issue in these proceedings are as follows:
DOCKET NO. DENV 78-521-P
Section 104(b) Notice of Violation 8-0005, 1 JODL, January 9,
1978, cites a violation of 30 CFR 75.517, and states as follows:
The 440 volt power cable for the No. 3 belt drive
located in the main South West section was not being fully
protected in the No. 5 entry a~ the No. 1 crosscut in that,
the outer half of the right front tire on the Wagner scoop
tram serial no. 395.75 was sitting on this cable.
30 CFR 75.517 provides as follows: "Power wires and cables,
except trolley wires, trolley feed~r wires, and bare signal wires,
shall be insulated adequately and fully protected."
2

Testimony and Evidence Adduced by the Petitioner
Federal coal mine inspector Jerry O. D. Lemon testified that he
issued the notice of violation on January 9, 1978, while inspecting
the mine. When he walked in the section, mine personnel were in the
process of moving a power unit and he observed the 440-volt power
cable under the right front tire of a diesel scoop. The tire was
resting on top of the cable, and was next to the right rib and
"there was a little coal over the cable." He advised the people
present that by "sitting on the cable" there was a violation of
section 75.517. The scoop was thereupon backed up approximately
a foot, the cable was pulled up out of the coal, and work commenced.
He checked the cable after it was pulled out of the coal and could
detect no visible damage (Tr. 14-17).
Inspector Lemon testified that the scoop is a big piece of
machinery and it is easy not to see a cable along the rib. He did
not believe the violation was intentional, and believed that the
scoop operator simply did not see the cable. The scoop was being
turned and was being used to facilitate the movement of the electrical unit, and the scoop bucket was about 3 or 4 inches off the
ground while assisting in moving the unit. The scoop was idling
and the operator was seated in the cab, and he did not observe the
scoop move up on the cable. The tire, being close to the rib, would
make it difficult for someone to walk between the rib and scoop (Tr.
17-20).
.
The inspector testified that the violation was nonserious because
there was no damage to the cable. However, he considered the situation to be an unsafe practice because if the cable were damaged, it
would present a hazardous situation in the event someone picked up an
energized damaged cable (Tr. 20-21).
On cross-examination, Inspector Lemon indicated that the term
"probable" as used in Part 100, Title 30, Code of Federal Regulations,
with respect to the gravity of a violation, means "it is likely to
happen." He marked the item labled 11 Probable 11 under the "Gravity 11
heading in numbered paragraph 1 on his inspector's statement (Exh.
P-3), because he thought there might have been some damage to the
cable, but he could not determine any damage from visual observation
since he is not an electrical inspector. While the cable was "in
good shape," there was a possibility that something could happen.
The event against which the cited standard is directed, as that
term is used in the "Gravity" statement, was the possibility of the
electrocution of a mine employee in the event the cable were damaged
(Tr. 23-29). He reiterated that the scoop was backed up first, and
the cable was then lifted up and tied off by means of a piece of
wire. The cable was lying under the right front tire. He also
indicated that it is his practice to make notes at the scene of a
violation and that he uses the notes as the basis for completing
3

his inspector's statement for each violation issued. He tries not
to include anything in his statement other than what he observes,
although he has included comments made by individuals on the scene,
particularly in "imminent danger" cases and "serious-type" violations, and he has, on occasion, included such statements under
"Remarks" on his report (Tr. 39-43).
Testimony Adduced by the Respondent
Roger J. Black, mine mechanic, testified that he is responsible
for the maintenance of equipment in the mine, and that he was present
the day Inspector Lemon cited the violation in question. He testified
that the cable in question was originally lying in the cut of the rib
where it is normally stored, but fell out and was lying at the side
of the tire with some coal on top of it when the inspector happened
on the scene. When it was pointed out to him, he pulled the cable
up on the rib and tied it up. The cable had been "disconnected outside, 11 and the fuses on the main transformer had been pulled. He
had no recollection that the scoop was moved first before the cable
was pulled up, but does not believe the scoop was moved (Tr. 47-48).
I

On cross-~xamination, Mr. Black stated that the cable fell off
the rib down next to the scoop tire, and he was aware that the cable
had been disconnected and deenergized because one cannot touch such
a cable unless it is disconnected at the surface. He could not
recall whether the scoop was backed off the cable, but he did remember pulling the cable up to the side of the tire. He indicated that
the cable fell down from a cut in the rib some 3 feet after the scoop
was parked, and he confirmed that the scoop was idling. He believed
that the cable in question was being fully protected, but he did not
realize it had fallen down from the rib. Since the scoop tires are
concave, it is possible that the cable was situated in such a way
that one would believe it was resting under the scoop tire (Tr. 4954).
DOCKET NO. DENV 78-522-P
Section 104(b) Notice of Violation 8-0010, 2 JODL, January 19,
1978, cites a violation of 30 CFR 75.313, and states as follows:
The methane monitor serial no. 269A mounted on the
ST-5DS Wagner Scoop serial no.• 395.75 being used inby the
last open crosscut in the no. 7 entry of the Main South
section to load coal was not being properly maintained or
kept in a operative condition in that, this system would
not automatically shut the diesel engine down when the
monitor test button was pushed and the monitor indicator
indicated 2 % methane.
·
4

30 CFR 75.313 provides:
The Secretary or his authorized representative shall
require, as an additional device for detecting concentrations of methane, that a methane monitor, approved as reliable by the Secretary after March 30, 1970, be installed,
when available, on any electric face cutting equipment,
continuous miner, longwall face equipment, and loading
machine, except 'that no monitor shall be required to be
installed on any such equipment prior to the date on
which such equipment
required to be permissible under
§§ 75.500, 75.501, and 75.504.
When installed on any such
equipment, such monitor shall be kept operative and properly maintained and frequently tested as prescribed by the
Secretary. The sensing device of such monitor shall be
installed as close to the working face as practicable.
Such monitor shall be set to deenergize automatically
such equipment when such monitor is not operating properly and to give a warning automatically when the concentration of methane reaches a maximum percentage determined
by an author;ized representative of the Secretary which
shall not be\more than 1.0 volume per centum of methane.
An authorize~ representative of the Secretary shall
require such monitor to deenergize automatically equipment on which it is installed when the concentration of
methane reaches a maximum percentage determined by such
representative which shall not be more than 2.0 volume
per centum of methane.
Testimony Adduced by the Petitioner
Respondent conceded and stipulated to the fact of a violation
of section 75.313, and indicated that it contests only the proposed
assessment made in the amount of $120 (Tr. 58-59). Petitioner was
permitted to present testimony by the inspector with respect to the
violation, and particularly with respect to the question of gravity
and negligence.
Inspector Lemon confirmed that he issued the citation on
January 19, 1978, citing a violation of 30 CFR 75.313, after finding
the methane monitor on an ST-5DS Wagner scoop, serial No. 395.75,
was not maintained in a workable condition. He has never detected
the presence of methane from bottle samples he has taken. He
extended the abatement time after being advised that repairs could
be made within 30 minutes. However, additional time was required
by the operator because it was discovered that parts had to be
ordered, and he granted an additional 2 or 3 days, or until 8 a.m.,
January 23, 1978, for abatement. He.returned to the mine at approximately 11:35 a.m. on January 23, and after. being advised by the section foreman that the machine had been repaired, he proceeded to

5

inspect the machine and found that the methane monitor was still
malfunctioning in that it would not deenergize the machine. Under
the circumstances, he had no alternative but to issue the order
prohibiting further use of the machine (Tr. 59-62).
Inspector Lemon identified Exhibit P-9 as a "gravity statement"
he prepared and stated that, being a new inspector, he had made a
mistake in listing 20 miners as being exposed to any hazard. That
figure should have reflected the number of persons working on the
shift, which ranged from six to nine (Tr. 63). Although Inspector
Lemon testified that a "possible hazard 11 was present, petitioner's
counsel stipulated that in the absence of any methane, the violation
cited was nonserious (Tr. 64, 73). Mr. Lemon believed the respondent
should have been aware of the condition cited because methane monitors are required to be checked and calibrated periodically (Tr. 6465).
On cross-examination, Inspector Lemon testified that he did not
know whether the monitor in question had been calibrated and indicated that he found no problems with respondent's failure to check
or calibrate methane monitors in the mine. To his knowledge, calibration had been ~ade to insure compliance. Mr. Lemon did not fill out
the "Good Faith'" portion of his "gravity statement" and crossed it
out because he is instructed not to fill out that portion when an
order has been issued (Tr. 69-70).
Mr. Lemon did not know whether the machine in question was used
on Thursday afternoon or Friday after he cited the violation. He
confirmed that the methane monitor would not deenergize the machine
when he tested it again on Monday, January 23, and he was told that
there was a problem with linkage being disconnected on the solenoid.
Mr. Lemon stated that he indicated on his gravity statement that the
occurrence of the event against which the cited standard was directed
was "probable." The "event" he referred to was that he believed it
was likely that if the face were shot while equipment was running,
and if 2-percent methane were found, which admittedly was not the
case, the equipment would likely not shut down (Tr. 71-73).
Respondent's Testimony
Roger J. Black, mine mechanic, testified that when the citation
-issued on January 19, the scoop was taken out to the shop. The injector housing linkage had broken. The. housing is not a stock item and
an order was placed for a housing and the linkage was soldered in the
housing and remounted on the injector pump. The scoop was taken back
into the mine on January 23. When tested in idle speed, the scoop
methane monitor would turn off the machine. When the machine was
reved up to 1,800 rpms in Mr. Lemon's presence, it would not shut
off and adjustments had to be made to the linkage in order to enable
it to shut off at higher rpms (Tr. 83-86).
6

On cross-examination, Mr. Black testified that if the machine
had not been reved up tb 1,800 rpms, it would have shut down when the
methane test button was activated. He could not recall telling
Mr. Lemon that the machine had been in the shop, but believe·d he told
him it would shut down at an idle speed (Tr. 86-87).
Section 104(b) Notice of Violation 8-0015, 4 JODL, January 30,
1978, cites a violation of 30 CFR 75.200-2, and states as follows:
The approved roof control plan was not being complied
with in the no. 3 entry face in the Main South West section
in that the straight away face had been completely cleaned
and no roadway timber had been installed. From the last
roof suppo~t (road way) timber to the deepest point of
penetration in the face it was an approximate distance of
42 feet.
The approved roof control plan states that roof supports shall be installed to within 15 feet of the cleaned
face, and that this roadway shall be maintained 15 feet
wide on the straight and that these supports be installed
on 5 foot c~nters and 4 feet from the rib line.
\

The notice was subsequently modified on February 6, 1978, to correct the citation reference from section 75.200-2 to 75.200 (Tr. 106107, Exh. P-12).
30 CFR 75.200, provides:
Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system
of each coal mine and the means and measures to accomplish
such system. The roof and ribs of all active underground
roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs. A roof control plan
and revisions thereof suitable to the roof conditions and
mining system of each coal mine and approved by the Secretary shall be adopted an~ set out in printed form on or
before ~ay 29, 1970. The plan shall show the type of support and spacing approved by the Secretary. Such plan
shall be reviewed periodically, at least every 6 months by
the Secretary, taking into consiqeration any falls of roof
or ribs or inadequacy of support of roof or ribs. No person shall proceed beyond the last permanent support unless
adequate temporary support is provided or unless such
temporary support is not required under the approved roof
control plan and the absence of such support will not pose
a hazard to the miners. A copy of the plan shall be furnished to the Secretary or his authorized representative

7

and shall be available to the miners and their
representatives.
Inspector Lemon testified that upon inspection of the mine on
January 30, 1978, he found a violation of section 75.200 in that the
respondent failed to follow its approved roof control plan (Exh.
P-28) in that in the No. 3 entry face of the Main Southwest Section,
the straightaway face had been completely cleaned and no roadway
timber had been installed from the last roof support for a distance
of approximately 42 feet from the point of deepest.penetration. The
roof plan requires that roof supports be installed within 15 feet of
the face, that the roadway be maintained 15 feet on the straight,
and that roof supports be installed on 5-fo~t centers approximately
4 feet from the rib line (Tr. 124). The mining cycle was in the
cleanup stage, and under the plan, timber was required within 20
feet of the face. He determined the 42-foot distance by use of a
tape thrown from the last roof support toward the face. His actual
measurement was 44 feet, but he allowed 2 feet for the end of the
tape tied to a rock. Six timbers set on 5-foot centers were required
(Tr. 124-129).
Inspector Lemon believed the respondent was negligent in allowing
'the cited condit'ion to exist. The face boss should have been aware
of the fact that four timbers had not been set prior to the equipment
completing the cleanup, although the face boss was not in the area at
the time. The loader operator was negligent by going in the area
because the roof control plan has been explained to the miners and
the safety director has explained it to the men. Inspector Lemon
observed the loader coming out of the area with a load of coal, but
saw no one else there. He did not know whether the missing posts
had been previously set, and he just did not see any. In addition,
he saw no drilling or shooting taking place, but this could have been
done on a previous shift. The operator is allowed to remove two
posts during the cleanup process and three posts during the cleanup
of the gob (Tr. 130-133).
Inspector Lemon indicated that roof falls have occurred in the
older part of the mine, but the roof area at the point of the violation was tested and it was not drummy (Tr. 134, 138). He could not
say whether the violation in question was serious. The roof at the
last support was sound and he should have indicated "improbable,"
rather than 11 probable" on his gravity statement (Tr. 139).
On cross-examination, Mr. Lemon testified that he became the
inspector at the mine in question in January 1978. He reiterated
the method used to measure the 42-foot distance stated in the citation, and his tape did not cross a crosscut. The last timber support was at a corner where a turn was proceeding to the right at a
crosscut. As he approached the face, he observed the loader leaving
and coming toward him, and it was about 180 feet down the entry, and
8

safety director Bob Kales was with him. The crew began setting timbers within 10 minutes of his measurement (Tr. 141, 144-151).
Mr. Lemon testified that under a subsequent plan effective
May 30 (Exh. P-29), timbers may be removed while cleaning the gob
(Tr. 156). When he arrived on the scene, the area had been cleaned
up and the loader had the last load in the bucket (Tr. 157). The
roof at the last support was sound, and he visually observed the
roof conditions. The roof looked good, sounded solid when tested,
and he saw no cracks (Tr. 160). He could not check the roof inby
the last support, and being unsupported, it could possibly come
down. He could not state whether it would probably come down, but
indicated it was a "good probability 11 and believed that it was
probable there was going to be a roof fall in the unsupported area
(Tr. 162). Although roof falls had occurred in mine areas which
had been mined out over 10 or 15 years, this would still indicate
that when pillars are pulled, that process would substantially
affect the probability or possibility of a roof fall. However, in
this case, pillars had not been pulled. When roof strata begins to
take weight, the timbers will begin to split and start flaking.
However, there wa s no weight on the timbers along the entry leading to the face atea in question, and he saw no evidence that the
timbers were taking weight in the entry or the faces. He did not
go beyond the timber support and did not look beyond it (Tr. 162165).
1

Petitioner's counsel stipulated that the mine roof conditions
are such that roof bolts are required as in other mines (Tr. 168).
Mr. Lemon confirmed that his notes taken on January 30 reflect that
he did not believe the violation was 11 significant and substantial"
(Tr. 171). Inspector Lemon indicated that the one person exposed to
the ·hazard of unsupported roof was the loader operator, even though
he was.under a protective cab {Tr. 176).
Respondent's Testimony
John Dania, employed by respondent as a mining engineer for
2-1/2 years, holds a BS degree in mining engineering, and is a
tered engineer in the States of Colorado and Utah. He wrote the roof
control plan currently in effect at the mine and has been in the mine
some 150 times in the working areas. He has surveyed the mine and is
familiar with all of the places, including the old works, and the mine
conditions (Tr. 180-183).
'
Mr. Danio stated that in recently mined areas, bad roof has not
been encountered. A year and a half ago, there was a roof fall in a
belt entry, but he was in the area 8 or 10 hours before the rock fell
and it was obvious to everyone that the top was bad. The area was
dangered off and precautions were taken before the rock fell. He is
unaware of any other roof falls in the mine within the past 5 years.
9

He described the roof conditions and roof strata in the mine. Older
areas mined over 20 years ago have had roof falls, and those areas
are still traveled, but have been timbered and are always checked
and evaluated for hazardous roof conditions. Roof flakirig does
occur in the old areaa, and, on occasion, small pieces of coal
have been found in recently mined areas (Tr. 183-186).
Mr. Danio testified that the mine has an unusual roof control
plan and part of the reason for that is the excellent nature of the
roof rock, and that MSHA recognizes this fact. He also indicated
that timbers must be recovered in order to remove coal from the
crosscut and to facilitate the movement of equipment (Tr. 187-188).
The parties agreed that Mr. Dania's testimony would also be
applicable to the subsequent timbering violation$ in issue in
Docket Nos. DENV 78-523-P and DENV 78-524-P (Tr. 188).
On cross-examination, Mr. Danio testified that he believed the
present roof control plan permits the development of two crosscuts
off an entry, plus the advancement of the face, all in the same mining cycle. Anytime one entry is 20 feet or wider, two rows of roof
supports mus~ be installed. He also explained the circumstances
under which timbers must be installed as the mining cycle advances
(Tr. 188-194).
Mr. Dania confirmed that some roof settlement occurs during
blasting at the face. As for roof faults, he indicated that some
50 holes have been drilled over the 440 acres of the mine and no
roof faults have been encountered (Tr. 195-196). Mr. Danio did not
observe the conditions cited by the inspector and had no personal
knowledge of the violation (Tr. 202).
In response to questions from the bench, Mr. Danio testified
that one possible explanation for the missing posts cited by Inspector Lemon was that the condition could occur by bad mining practices, that problems have occurred in the past, but management is
working at improvements (Tr. 208).
DOCKET NO. DENV 78-523-P
Section 104(c)(l) Order 7-0111, 1 DKJ, December 30, 1977, cites
a violation of 30 CFR 75.316, and states as follows:
The line curtain was only' being maintained to within
22 feet of the face of the No. 5 entry of the South West
section. The face had been cut with a Joy cutting machine
and all the curtain was extended and no additional curtain
was available in the entry. The ventilation plan requires
the line curtain be maintained to within 12 feet of the
area of deepest penetration.

10

30 CFR 75.316, provides:
A ventilation system and methane and dust control plan
and revisions thereof suitable to the conditions and the
mining system of the coal mine and approved by the Secretary
shall be adopted by the operator and set out in printed form
on or before June 28, 1970. The plan shall show the type
and location of mechanical ventilation equipment installed
and operated in the mine, such additional or improved equipment as the Secretary may require, the quantity and velocity
of air reaching each working face, and such other information as the Secretary may require. Such plan shall be
r~viewed by the operator and the Secretary at least every
6\·months.
\
Sect\ion 104(c)(l) Order No. 7-0112, 2 DKJ, December 30, 1977,
cites a violation of 30 CFR 75.200, and states as follows:
Roof supports (timbers) were only being maintained to
within 44 feet of the face of the No. 4 entry of the South
West section. The approved roof control plan requires
that timbers ~e maintained to within 15 feet of the face.
Section 104(c)(l) Order No. 7-0013, 3 DKJ, December 30, 1977,
cites a violation of 30 CFR 75.200, and states as follows:
Roof supports (timbers) were only being maintained to
within 33 feet of the face of the No. 3 entry of the South
West section. The roof control plan requires that timbers
be maintained to within 15 feet of the face.
DOCKET NO. DENV 78-524-P
Section 104(c)(l) Notice 7-0110, 1 DKJ, December 30, 1977, cites
a violation of 30 CFR 75.200, and states as follows:
Roof supports (timbers) were only being maintained to
within 38 feet of the face in the No. 6 entry of the South
West section. The approved roof control plan requires
timbers be maintained to within 15 feet of the face.
In both Docket Nos. DENV 78-523-P and DENV 78-564-P, respondent
stipulated to the fact of violations with respect to the four citations issued by MSHA inspector Dick K. Jones, and the parties stipulated to the adoption by reference of the previous testimony of
Mr. John Danio with respect to the prevailing roof conditions at the
mine (Tr. 211).
Exhibit P-23 is a copy of the section 104(c) notice issued by
MSHA inspector Dick K. Jones on December 30, 1977, at 9:35 a.m.
11

Exhibits P-14, P-15, and P-16 are copies of three section 104(c)
orders issued by Inspector Jones at 9:40, 10, and 10:45 a.m., all
on December 30, 1977, subsequent to the issuance of the underlying
notice. Respondent stipulated to the admissibility of the notice
and orders (Tr. 212-213).
MSHA inspector Dick K. Jones confirmed that he issued the 104(c)
notices on December 30, 1977. Upon entering the mine to conduct an
inspection, he proceeded to the face of the No. 6 entry and observed
that timbers were only being maintained to within 38 feet of the face
in the No. 6 entry at the southwest section. The approved roof control plan required timbers to be maintained to within 15 feet of the
face. He verified the dista·nce cited in his not ice by means of a
measurement made with his tape. Upon entering the section, he
observed a piece of equipment coming out of the No. 5 entry, and
there was a cutting machine parked just ouby the No. 6 crosscut (Tr.
217). Upon leaving the No. 6 entry, he encountered Section Foreman
La Valley and informed him of the condition which he had found.
Mr. LaValley responded "You are not telling me anything I don't
know." He and Mr. LaValley then proceeded to the No. 5 entry and
after observ\ng the condition, he informed Mr. LaValley that he was
issuing a notice of violation. He also informed him that he was
issuing a violation for failure to have roof supports in the No. 6
entry. Mr. LaValley advised him he was aware of the condition and
explained that it was not uncommon for him to come on the shift in
. the morning and find these conditions and that the afternoon shift
was "leaving it this way." At that point, Safety Director Hales
came to the scene and he (Jones) advised him as to what Mr. LaValley
told him and Mr. Hales took notes. Mr. Jones then went to the No. 4
and No. 3 entries and upon finding the conditions noted in his orders,
he issued the orders (Tr. 218-220).
Inspector Jones testified there were six entries in the area
which he examined and the violations were issued on four of the
entries. He believed the four entries had been mined on December 30
because of the manner in which they were cut and cleaned and the pos
tiou of the equipment, and he believed that the afternoon shift left
the entries in the conditions in which he found them. He described
the mining cycle, and since each cycle advances some 10 or 11 feet,
he believed mining advanced at least two times without roof supports
being installed. The area was exposed to anyone walking in, but he
did not observe anyone inby the la$t timber supports in any of the
entries while he was there. He was convinced that the mining cycle
had advanced without setting timbers, since there was no evidence
that timbers had been installed. He observed equipment tracks,
equipment was present, and mine management did not deny the fact
that timbers had not been set, and, in fact, admitted it (Tr. 220223).

12

With regard to the gravity of the conditions he found in the
No. 6 entry, Inspector Jones testified that just inby the last support there was approximately 6 feet of loose coal which was nearly
ready to fall and it had to be removed. He and Mr. Hales barred it
down before abatement could begin and it came down very easily.
While people were in the area prior to this time, he did not know
whether that particular coal was loose at that time. Approximately
a foot of coal was barred down, and had it fallen, he would not have
wanted to be under it (Tr. 224). With regard to the line curtain violation in the No. 5 entry, a person working inside the line curtain
area would be working in a dusty atmosphere and the mine was working
with a small fan and mine ventilation was, at best, barely adequate.
Since that time, conditions have improved with the installation of
another fan. Other ch~ck curtains in the aiea were in bad shape,
but he did not cite those because repairs were being made. He took
no air readings at the face because once the area was closed by his
orders, the hazards were eliminated. At the time he cited the violations, he believed the ventilation devices were in good shape
because required face ventilation was being maintained (Tr. 225).
Mr. Jones testified that he considered the violations to be
serious and that th\e section was in "bad shape . 11 He went back to
the section with re~pondent's engineer, Mr. Sikes, to show him the
conditions, and took him to each place to show him the conditions.
Mr. Sikes agreed with his findings, as did Safety Director Hales, who
expressed embarrassment over the condition of the section (Tr. 227).
Mr. Jones identified Exhibit P-25 as the "gravity statement" he
filled out in connection with the notice citing 38 feet of unsupported
roof (Exh. P-23), and under the heading "Gravity" he checked the block
"Probable" and remarked that "[t]imbers are the only means of roof
support, and the top in this area is drummy and cracked and did not
appear good.'' He also indicated on the form that two workers were
exposed to the hazard and remarked that ''[s]ince this face had been
cut, both the coal scoop operator and the cutting machine operator
had been beyond supports" (Tr. 229-230).
Mr. Jones identified Exhibit P-16 as the "gravity statement" he
prepared in connection with the line curtain violation (Exh. P-14),
and confirmed that he marked."probable," "none" under "Remarks,"
"disabling,~' and "none" again under "Remarks."
He also confirmed
that he noted that two workers were exposed to the hazard, that "the
coal scoop operator and the cutting machine operator both had been
operating this equipment inby the last line curtain," and that "the
coal is loaded out with Wagner diesel coal scoops, and diesel fumes
build up in the face when adequate ventilation is not provided" (Tr.
230-231).
Mr. Jones identified Exhibit P-19- as the "gravity statement" he
prepared in connection with the citation concerning the 44-foot roof

13

support violation (Exh. P-17), and indicated that he marked "probable"
under the "Gravity" heading, and remarked that "the roof inby the
last roof support was cracked and drummy and was flaking off." He
also confirmed that he indicated that any injury would be 11 permanent ly disabling," and that he remarked 11 these timbers are the only
means of roof support and the only way to detect if the area is
taking weight." He also noted on the form that two workers were
exposed to the hazard and remarked that "the coal scoop operator and
the cutting machine operator had been operating inby the last support" and 11 the coal scoop had violated the roof control plan to clean
up and then the cutting machine had gone in and cut the face without
setting any support" (Tr. 231-232).
Mr. Jones identified Exhibit P-22 as the "gravity statement 11 he
prepared in connection with the 33-foot roof support violation (Exh.
P-20), and confirmed that he indicated on the form that the condition
was "under the direct observation of management," namely, the section
foreman. He also confirmed that he marked 9-probable" and remarked
"possible roof fall." He also noted on the form that the injury
would be 11 disabling," inserted 11 none" under "Remarks," that two
workers were exposed to the hazard, and remarked that "coal scoop
operator, when ~aking methane checks and operating equipment and
when extending t'he line curtain was exposed to the hazard 11 (Tr.
233).
Regarding the line curtain violation, Inspector Jones testified
that failure to extend the line curtain results in inadequate face
ventilation and limitations on vision since the curtain is required
to sweep dust away from the face area. In addition, there is a possibility of a dust ignition and the men can breathe in the dust. The
ventilation plan required that the curtain be maintained to within
12 feet of the face, and the dust generated at the face is readily
observable and should have alerted the operator that he was in violation. Although he observed a scoop coming out of an entry, he
could not· te 11 whether it was loaded or not, since he was by the
first entry when he observed it come out. The place had been
cleaned up and the gob had been cleaned, but he did not see the
scoop inby the line curtain. He did not take any air measurements
and the reason for this was the fact that he had closed down the
entry when he issued his order and he believed this eliminated all
hazards (Tr. 3-7, Nov. 16). He described the mining cycle which he
believed took place and assumed that at least two cuts of coal had
been taken over a half-day shift in the three entries where he cited
roof control violations, and men were working under unsupported roof
(Tr. 9-11). He confirmed that when he and respondent' Safety
Engineer Sikes ~ent back to look at the areas c~ted, h:. Sikes did
not disagree with his findings (Tr. 12). Based on his analysis of
the mine roof control plan, a total of 12 additional timbers should
have been installed in the three entries.cited in his roof control
violations, and failure to install them permitted more coal to be

mined on the shift. Failure to install the timbers, however, had
a potentially detrimental effect on the safety of the miners (Tr.
15-16).
In response to questions from the bench, Inspector Jones indicated that at the time the violations were issued, the mine atmosphere was clear and no equipment was operating. His testimony
concerning the hazardous conditions assumed that these conditions
existed during prior normal mining operations inby the line curtain
and timbering areas noted in his citations. Had it not been for the
timbering violations, he would not have shut the section down because
of the ventilation curtain violation in and of itself (Tr. 17). However, since a complete mining cycle had occurred, he believed that
dusty conditions probably prevailed because of the failure to extend
the curtain in question (Tr. 18).
On cross-examination, Mr. Jones testified as to his assumptions
regarding the presence of the loader he observed coming out of the
entry after he cited the violations. However, he was not prepared to
state that the loader was in the face area. Assuming the loader had
just gone into that area and· scooped out some coal, it probably would
have generated some dust. However, he conceded that the loader would
not have generated much dust since the gob being scooped would be in
a pile, and it would constitute 50 percent clay and rock (Tr. 19-24).
Inspector Jones assumed the loader had been working at the face
because coal had been cut and the gob removed. He did ·not check for
methane (Tr. 27-28).
With regard to the notations made on his inspector's statement
concerning the gravity of the ventilation curtain violation, particularly the fact that diesel equipment emits fumes, Mr. Jones candidly
admitted that the statement was based on what he believed would have
occurred in the normal course of mining, rather than what he actually
observed (Tr. 30-34). Mr. Jones could not recall reviewing the preshift examiner's reports on the day of the citations (Tr. 35). He
also indicated that he did not believe there was any direct relationship in the amount of air recorded at the last open crosscut and the
amount of air at the working faces (Tr. 37~39). Although he observed
some check curtains in disrepair, he saw no one inby those curtai~s,
nor did he observe any equipment there (Tr. 46). The gist of the
violation was the fact that the line curtain was installed 22 feet
outby the face, the face had been advanced, and one mining cycle had
been completed with no additional curtain being installed (Tr. 48).
When he arrived on the scene, no one was at the face and no line
curtain was installed (Tr. 51). Regarding his previous testimony
concerning the roof conditions in the mine in question, Mr. Jones
indicated that they were "average," and, although some roof areas
sounded drummy, he could not be sure that this was indicative of
the fact that it might fall (Tr. 54-55). Roof falls on the section
in question were rare (Tr. 55}. However, drummy roof and cracked
15

roof is indicative that it would probably fall (Tr. 57). He did not
mean to imply that this roof condition prevailed throughout the mine,
but only at the location of the violation (Tr. 57).
Mr. Jones did not know the number of times the mine was cited for
violations of section 75.200 (Tr. 59). He was not aware of the fact
that the Assessment Office may waive the normal assessment formula
used to assess penalties, but was aware of the fact that inspectors'
statements are used in assessing penalties (Tr. 73). Regarding Violation No. 7-0013 (Exh. P-20), Inspector Jones testified that the
reason he noted a "possible roof fall" on his inspector's statement
(Exh. P-22), while explaining in some detail in the "Remarks" on the
other statements dealing with the other roof violations, was the fact
that the conditions were different. In the case of this violation,
the roof was not cracked (Tr. 77). Although the fact that the roof
was cracked, druITu~y, and flaking in some areas, he did not see any
significant difference in a roof condition which was not cracked,
insofar as the probability of a roof fall was concerned (Tr. 78).
Regarding his definition of "probable," he believed it does not
mean greater than 50 percent, not necessarily greater than 30 percent, and possibly greater than 20 percent, depending on the prevailing conditi'c:ms, such as equipment being used, roof supports,
blasting techniques, etc. (Tr. 79).
John Danio was recalled as a witness for the respondent, and
testified that he was present in the courtroom when Inspector Jones
testified as to roof cracks. Mr. Danio stated that what sometimes
appears to be roof cracks may, in fact, be face cleats or butt cleats
which are natural phenomena which appear in coal pillars, and this
structural phenomena is associated with all coal formations (Tr. 91).
Given the lighting conditions in a mine, he does not believe that
he would mistake such a cleat for a roof crack. Such cleats have a
trend and direction; they can be mapped and identified as cleats
(Tr. 92). He also testified that he was familiar with mine ventilation, and testified that the amount of air at the last crosscut is
indicative of the amount of air that is available to ventilate a
face. Since the mine does not have methane, sweeping mine ventilation characteristics are not critical, and a machine operator sitting at the controls would not be affected by diesel fumes, since
the fan ventilation will carry the fumes away from him. Further,
he would not be adversely affected by dust since he is away from
the face area (Tr. 90-95).
On cross-examination, Mr. Danio conceded that he did not personally observe any of the conditions cited by Inspector Jones at the
time the citations were issued, nor did he observe any cracks in the
roof entry. Assuming the line curtain was 22 feet away from the face
and in disrepair, as testified to by Inspector Jones, he assumed that
6,000 cfms of air would not reach the face (Tr. 95-97).
16

Findings and Conclusions
The following findings and conclusions as to size of business,
effect of penalty ass~ssments, and history of violations apply to
all dockets.
Size of Business and Effect of Penalties Assessed on the Respondent's
Ability to Remain in Business
The evidence and testimony adduced reflects that the mine in
question is a one-section mine employing approximately 25 individuals
working two shifts a day (Tr. 12). Respondent's Exhibit R-4, is a
weekly report ending November 5, 1978, showing a total of 21 production employees, 4 administrative workers, and 4 truck drivers employed
at the mine, and the average estimated yearly coal production to
November 5, is shown as 73,822 tons. Although respondent's counsel
questioned the accuracy of his own figures (Tr. 74-75), they are
estimated figures, and respondent was afforded an opportunity to file
additional information (Tr. 214). Mr. Danio testified that in addition to the mine in question, respondent also operates an open-pit
gold leeching oper~tion in Carlin, Nevada, and the total company
employment is about\ 75 or 100. Government Exhibit P-26, a MSHA
report, shows 1976 coal production as 65,471 tons and 1977 production
as 83,354 tons (Tr. 202-206). Based on all of the available information presented in these proceedings, I find that respondent is a small
mine operator and that fact is reflected in the penalties assessed by
me in these proceedings.
Respondent presented no evidence that any penalties assessed by
me in these proceedings will adversely affect its ability to remain
in business. Under the circumstances, I conclude they will not.
History of Prior Violations
Petitioner submitted a comp6ter printout representing the prior
history of violations at the Dog Valley Mine (Exh. P-27), and that
history was received in evidence with no objections by respondent
(Tr. 100, Nov. 16). Respondent was afforded an opportunity to file
any posthearing corrections to the printout (Tr. 101), but has not
done so and has not addressed the issue in its posthearing brief or
proposed findings and conclusions. Petitioner stipulated that the
mine has no prior history of any fatal r?of falls (Tr. 12, Nov. 15).
The computer printout reflects a total of 226 prior violations
for which civil penalties were assessed and paid by the respondent

during the period January 9, 1976, to December 19, 1977. Taking into
account the size of respondent's operation, I conclude that this
reflects a moderately significant prior history of violations and
this fact is reflected in the penalty assessments made by me in these
proceedings.
·
17.

DOCKET NO. DENV 78-521-P
Fact of Violation--30 CFR 75.517
In its answer filed September 18, 1978, respondent denied that a
violation of 30 CFR 75.517 occurred, and asserted that the scoop tire
was not on the cable in question, but merely next to it, and that
this fact was confirmed by Mr. Joe Tenery, the foreman, and Mr. Roger
Black, a mechanic who was present at the site at the time of the
inspection. Further, respondent asserted that inspection of the
cable, following the issuance of the notice, showed no damage to the
cable.
Petitioner's position with respect to this violation is that
the cable in question must be protected at all times, and the potential for cable damage is not only damage to the outer insulation, but
damage to the inner wires and insulation as well. In such a case, a
short-circuit may occur, and while it is true that the short-circuit
protection would work, crossed wires may not allow this. Once a
cable is hung, it should be hung in such a way as to prevent it from
dropping on the\floor where it may be run over by equipment. The fact
that no one obsenved a cable being run over, does not excuse a violation because if it is run over, damage may have resulted inside the
cable, and no one would know about it (Tr. 54-59).
I find that the preponderance of the evidence adduced in this
proceeding supports a finding of a violation of 30 CFR 75.517. The
standard cited requires that power cables be protected. The normal
method by which the cable in question is protected, is to hang it
up off the mine floor so as to protect it against being run over or
damaged by equipment. While the inspector believed the scoop tire
was resting on the cable, and the mechanic believed it was merely
lying next to the tire, the fact is that the cable in question was
lying
. on the mine floor, thereby exposing it to the possibility
. of
being run over or damaged by the scoop. Further, the mechanic
stated that the cable is normally stored along the rib in a cut
made for that purpose, and at the time of the citation, it had
apparently fallen from the rib and was resting on the floor. I
find that petitioner's interpretation of the standard in question
is a reasonable and correct one, and in the circumstances, I find
a violation has been established.
~

.

Gravity
The inspector considered the violation to be nonserious, and
petitioner's counsel stipulated that the citation was nonserious,
but that the practice of running over a cable was serious (Tr. 37g), Petitioner has presented no evidence that respondent makes it
l practice to run ov~r cables, and the notice of violation makes
~ such charge.
Accordingly, I find that the violation is
·1onserious.
18

Good Faith Compliance
The evidence adduced reflects that the violation was immediately
abated within 5 minutes, and in the circumstances, I conclude that
respondent exercised rapid compliance once the citation issued.
Negligence
From the evidence presented, it would appear that the cable in
question fell from its normal storage place alone the rib while the
respondent was in the process of moving a power unit. The inspector
testified that the violation was not intentional, and that it is
easy for the scoop operator not to have seen the cable in question
because of its position along the rib and the large size of the
scoop which he was operating at the time of the citation. In this
instance, he believed the scoop operator probably did not see the
cable. In the circumstances, I cannot conclude that the operator
was·negligent in this instance and find that he could not reasonably have known of the condition cited, In the circumstances, I
find that the respondent was not negligent.
DOCKET NO. DENV 78~522-P
Fact of Violation--30 CFR 75.313
In its answer filed September 18, 1978, respondent conceded a
violation of 30 CFR 75.313, but contested the penalty assessment of
$120 as excessive on the grounds that: (1) respondent has an excellent record showing few citations for significant past violations,
(2) due to the size of its mining operation, the assessment is
inappropriate, (3) there is no evidence that respondent was negligent, (4) the violation was not grave since immediate testing
detected no methane, the methanometer was checked promptly upon
notification of the violation and repaired immediately upon receipt
of necessary parts, and (5) upon issuance of the order, immediate
steps were taken to abate the violation. At the hearing, the
respondent again conceded and stipulated to the fact of violation
of the provisions of section 75.313, and indicated that it was contesting only the $120 initial civil penalty assessment levied with
respect to the violation (Tr. 59). In the circumstances, I find
that a viola~ion has been established.
Good Faith

liance

During the course of the hearing in this matter, petitioner's
counsel asserted that at the time the order issued, good faith was
nonexistent because the problem with the mechanical linkage probably
existed all along and it took an orde-r to gain compliance. However,
the record shows that the respondent was having problems with the
methane monitor which were obviously recognized by the inspector,
since he issued several extensions of his notice. Inspector Lemon

19

conceded that on many occasions he will note on his notice that parts
are needed to repair a piece of equipment and that he uses this as
justification for extending the abatement time. He conceded that
this is what occurred in this case and that he allowed ·3 days to
obtain parts because the mine is in a remote area and parts must
be obtained from Price, Utah. Inspector Lemon also candidly
admitted that he did not believe that the respondent was using the
fact that parts were required as an excuse for not complying with
the abatement, and conceded that parts were "probably 11 needed. In
the circumstances, and based on the totality of the evidence presented, I conclude that respondent abated the violation in good
faith, and under the circumstances presented, exercised normal good
faith in achieving abatement.
Gravity
Petitioner stipulated that this violation was nonserious, and
that is my finding (Tr. 73).
Negligence
An initial\ preshift or onshift inspection by the operator should
have detected the inoperative monitor. I find that the respondent
should have known about the inoperative condition of the methane
monitor in question and that it failed to exercise reasonable care
in preventing the condition cited. This constitutes ordinary
negligence.
Fact of Violation--30 CFR 75.200
In its answer filed September 18, 1978, respondent denied that
the violation occurred and contested the citation, but did not contest the proposed assessment of $115. As grounds for its contest of
the citation, respondent asserted that: (1) it has an excellent
record showing few past significant violations, (2) there is no evidence of negligence, the violation was not grave since no mining was
taking place at the time of the inspection, and the only employees
in the face area were timber men who were resetting the roof supports which had been removed to allow movement of machinery and
cleaning behind the curtains. Further, respondent asserted that
the roof had been checked in all seven faces of the mine both before
and after the notice was issued and appeared sound, and even in the
absence of supports, a roof fall was.highly improbable. Further,
respondent asserted that if the roof plan submitted by respondent
on May 19, 1978, and approved by the Mine Safety and Health Administration on May 30, 1978, had been in effect at the time of the
inspection, when the mine roof conditions were the same as they
were when the new plan was approved, the alleged violation would
have been, at most, de minimis and-probably nonexistent.
20

At the hearing on November 15, 1978, respondent proposed to abandon its contest altogether with respect to the violation and moved to
withdraw its contest with respect to both the fact of violation and
the proposed assessment and indicated that it no longer wished to contest the violation and desired to pay the initial proposed assessment
of $115 (Tr. 7-8). Petitioner opposed the motion to withdraw and
respondent's offer to pay the assessment (Tr. 7-8). The parties
were afforded an opportunity to present arguments on th~ record with
respect to respondent's motion to withdraw its contest (Tr. 91-121).
In support of its opposition to respondent's motion to completely withdraw its contest, petitioner argued that once a petition
for assessment of civil penalty
filed by MSHA, any proposed settlement must be agreed to by MSHA and approved by me in accordance with
the Commission's rules. Petitioner's counsel asserted that he could
not agree with respondent's offer of payment since he believed the
facts warrant an assessment higher than that made by the assessment
officer for the violation in question. Petitioner views respondent's
attempts to withdraw at the hearing stage of the proceeding as an
offer to settle the matter and that petitioner does not agree to
any settlement. Since the matter is de novo before me, petitioner
asserted that I am not bound by the prior assessment and should
proceed with the matter and decide not only the question of violation, but also the amount of penalty to be assessed, taking into
account the statutory criteria for assessment of civil penalties.
In support of its motion to withdraw, respondent argued that it
simply wishes to abandon its appeal and pay the assessment, and that
the question of settlement is immaterial. Respondent's counsel conceced that settlement discussions were, in fact, conducted between
the parties, but that petitioner took the position that unless
respondent agreed to abandon all of the section 75.200 violations
at issue in the other dockets which are the subject of these proceedings, petitioner would not agree to the settlement of the
instant case. That proposal was unacceptable to the respondent,
and citing Commission Rule 29 CFR 2700.lS(a), counsel argued that
respondent has a right to withdraw a pleading at any stage of the
proceeding with the approval of the Commission or one of its judges.
Since counsel views the notice of contest as a pleading, he argued
that it may be withdrawn at any time and that I have sole discre.tion
in the matter, regardless of whether or not petitioner agrees to the
withdrawal. With respect to Commission Rule 2700.27(c), dealing with
Commission approvals of proposed settlements, counsel took the position that the rule only deals with contested penalties, and since
respondent did not contest the penalty assessed for the violation,
that rule is inapplicable.
After consideration of the arguments made at the hearing, respondent's motion to withdraw its contes~ was denied and respondent was
afforded an opportunity to present any evidence it desired in support

21

of its position regarding any penalty assessment to be made by me with
respect to the violation (Tr. 116-118).
Respondent's reliance on Commission Rule 2700.lS(a) in support of
its motion to withdraw its contest, is rejected. As noted in Ranger
Fuel Corporation, 2 IBMA 186 (1973), once a petition for assessment of
civil penalty is filed with a judge, jurisdiction vests, and the
request for a hearing on the merits of the petition, not being a
pleading, may not be withdrawn. In addition, it is well settled that
civil penalty proceedings before the Co~nission or one of its judges
is a de novo proceeding, and that the prior proposed assessment made
pursuant~Part 100, Title 30, Code of Federal Regulations, is in no
way controlling. See Gay Coal, Inc., 7 IBMA 245 (1977); Boggs Construction Company,
IB:MA 252 (1976); Lewis Coal Company, 6 IBMA 263
(1976). The jurisdiction of the judge to proceed in a civil penalty
proceeding is not affected by the method of computation utilized by
the Office of Assessments in arriving at an initial proposed civil penalty. Buffalo Mining Company, 2 IBMA 226 (1973); Eastern Associated
Coal Corporation, 3 IBHA 132 (1974). Further, it is also clear that
a judge lacks the authority to order MSHA to recompute proposed
assessments of c,ivil penalties. Clinchfield Coal Company, 3 IBMA
154 (1974); Consblidation Coal Company, 3 IBHA 161 ( 1974).
I am of the view that my responsibility under the law in a contested proceeding, in which a mine operator has requested a hearing,
is to afford him that opportunity and to adjudicate the case and
issue a decision based on the record made at the hearing, including
a realistic and even-handed consideration of the statutory criteria
with respect to the assessment of civil penalties which have been
proven by a preponderance of the evidence.
On the facts presented in this case, I conclude that respondent's
untimely attempt to withdraw its contest at the hearing and its offer
to pay the initial assessment is an offer of settlement which must
be concurred in by MSHA and approved by me pursuant to Rule 2700.27(d).
Since MSHA did not agree to the proposed settlement, there is nothing
to approve, and my previous ruling made at the hearing, denying
respondent's motion to withdraw, is reaffirmed.
Responded conceded the fact of violation, and, in addition, after
consideration of the testimony and evidence adduced by petitioner and
respondent with respect to the citation, I conclude that the record
supports a finding of a violation of section 75.200.
Negligence
Except for the testimony of Mr. Danio, respondent presented no
testimony in defense of the cited condition. Mr. Danio did not view
the condition cited and had no personal knowledge of the condition
which the inspector observed. The inspector believed the face boss

22

should have been aware of the fact that the timbers were not
installed. The fact that he may not have been in the area during
the cleanup or when the citation issued is innnaterial. An operator
is presumed to know the requirements of his own roof control plan
and the section foreman is responsible for seeing to it that the
plan is followed during his working shift. I find that the respondent failed to exercise reasonable care to prevent the violation,
and that this constitutes ordinary negligence.
Gravity
Inspector Lemon testified that at the time he observed the condition cited, he observed a loader coming out of the area of unsupported roof with.a load of coal. However, he saw no one else there
and no coal drilling or shooting was taking place. He tested the
roof and it was not drummy, and at the point where the last support
was installed, the roof was sound. Beyond that point, the roof
appeared to be sound upon visual inspection and he observed no
cracks. Although he indicated that the probability of a roof fall
increases when pillars are pulled, in this instance, no pillars had
been pulled, and t'he entry and working faces were not taking weight.
In this case, the inspector could not conclude whether the violation in question was serious, and indicated that his gravity
statement should have indicated 11 improbable, 11 rather than "probable."
However, the fact remains that the required roof support was not
installed and the loader operator was observed coming from the area.
While the actual roof conditions up to the point of last roof support were good and the roof area immediately beyond that point
appeared sound upon visual inspection, the inspector did not venture
beyond that point to test the roof because additional timbers had
not been installed. Roof falls are unpredictable, and unsupported
roof presents a hazard to miners working in such areas. In the circumstances, I find that the condition cited presented a potential
danger of a roof fall and consequently, I conclude that the violation was serious.
·
Good Faith Compliance
The inspector testified that the section crew began the installation of the required roof timbers within 10 minutes of his making
his measurements to support the citation. I find that this constituted rapid abatement of the cited violation and good faith
compliance.
DOCKET NO. DENV 78-523-P
Fact of Violation--30 CFR 75.316
In its answer of September 18, 1978, respondent denied that it
was in violation of its ventilation plan or section 75.316, and
23

asserted that no violation of section 75.316 was alleged in the citation, that the ventilation plan in effect at the time of the citation required that line curtains be maintained to within 12 feet
of the area of deepest penetration in any face when coal is being
cut! mined or loaded, and since no cutting) mining or loading of
coal was taking place at the time of the inspection, there is no
violation. In support of its opposition to the proposed assessment
of $1,200, respondent argued that the amount is inappropriate in
view of its excellent past history of violations, its size of business, lack of negligence, and prompt abatement upon issuance of the
order. Further, respondent argued that the violation was not grave
in that testing in the mine established that there was sufficient
ventilation to keep methane levels in the mine below 1.0 volume
per centum as required by section 75.308.
Failure by an operator to comply with any provision of its ventilation plan constitutes a violation of the provisions of 30 CFR
75.316. Peabody Coal Company, 8 IBMA 121 (1977); Valley Camp Coal
Company, 3 IBMA 176 (1974); Zeigler Coal Company v. Kleppe, 536 F.2d
398 (D.C. Cir. 1976). The fact that coal was not being cut or loaded
at the precise mpment that the inspector arrived on the scene and
observed that th~ line curtain had not been advanced as required is
immaterial, and r~spondent's proposed interpretation of the standard
cited is rejected. It is clear to me from the testimony by the
inspector that the curtain in question had not been advanced while
coal was being cut, mined, and loaded during the shift preceding his
inspection, and respondent has presented no evidence to rebut this
testimony. Where an inspector describes a condition alleging a violation which occurred during the working shift immediately preceding
,- 11e shift in which the inspection is made, a prima facie violation
<i:ay be found on the basis of the inspector's 'findings that he could
dnd no evidence of compliance. Rushton Mining Company, 6 IBMA 329
\1976). Here, the order issued by the inspector described the condition which he believed constituted a violation, and he specifically
cited section 75.316, as did the petition for assessment of civil
penalty. Consequently, respondent's contention that the citation
failed to cite the standard violated is rejected.
Based on the foregoing, I find and conclude that the petitioner
has established a violation of 30 CFR 75.316 as charged in the
citation.
Gravity
The inspector testified that the line curtain violation, standing
alone, would not have prompted him to issue a closure order (Tr. 17).
Although he did testify that he found other line curtains in disrepair, he did not cite the respondent.for this condition, and his
notice is limited to the fact that the line curtain in question was
24

not extended the required distance to the face. I conclude that the
seriousness of the situation presented must be considered in light of
the prevailing conditions. Here, it
clear that the inspector did
not take any air readings or otherwise test for dust accumulations,
methane, etc., and based his findings on conditions which he believed
existed on the previous shift while coal was being mined. Further,
at the time the citation'issued, petitioner conceded that the area in
question was not dusty, and had been cleaned up (Tr. 24-25). Since
petitioner has the burden of proof, I cannot conclude that the violation was serious, even though one may assume that the failure to
extend the curtain in question may have had some adverse impact on
the mine environment. Although I have sustained the fact of violation
on the basis of inferences based on the inspector's finding that mining had taken place on the previous shift, absent any evidence as to
what the actual prevailing conditions were at that time, I cannot
conclude that the question of the seriousness of a violation can be
determined on inferences. Although the inspector's gravity statement
reflects that the cutting machine and scoop operator were exposed to
diesel fumes building up at the face, it is clear that this was an
assumption by the inspector. Respondent's testimony indicates that
ventilation was adequate, that the machine operators were operating
away from the face. environment, that the fans installed on the equipment would disperse any diesel fumes, and no methane buildups were
present. The inspector did not check the preshift books, and he
admitted that at the time the violation issued, the mine ventilation
devices were in "good shape 11 since the required face ventilation was
being maintained (Tr. 225). Based on the totality of the circumstances presented, I find that this violation was nonserious.
Good Faith Abatement

•

Inspector Jones testified the entire crew was assigned to correct
the conditions cited, and petitioner stipulated that the respondent
exercised good faith in abating the violation (Tr. 12, 14). I find
that the violation cited was abated in good faith by the respondent
once it was issued, and that respondent exercised normal compliance
in this regard.
Negligence
The inspector testified that the condition cited was readily
observable to anyone walking in the area where the line curtain had
not been advanced. He also testified that the section foreman on
duty during the period the citation issued advised him that he was
not surprised at the conditions cited and that the preceding shift
had left the section "this way" in the past. Further, the inspector
testified that after issuing the citation, he and the mine safety
director went back to the section to observe the conditions.
Neither the safety director nor the section foreman testified in
this proceeding, and in the circumstances, the inspector's testimony

25

is unchallenged.
Based on his testimony, I can only conclude that
the respondent should have been aware of the conditions cited, that
it failed to exercise reasonable care in preventing the condition
cited, and that its failure in this regard constitutes ordinary
negligence.
With respect to Inspector Jones' testimony concerning the conversation that he had with Section Foreman LaValley, Inspector Jones
produced the notes which he made concerning this conversation at the
time he cited the violations which are in issue in Docket No. DENV
78-523-P (Exh. P-31). His notes confirm his testimony that
Mr. Lavalley had admitted that the previous shift had left the section in "this kind of situation,'' and that Mr. LaValley had expressed
some concern over·the fact that his working shift was being held
responsible for the conditions of the section.
Inspector Jones identified Exhibit P-31 as the notes which he
took with respect to the conversation he had with Mr. Lavalley at the
time he initially observed the conditions which led to his citations,
and the conversation he had with Mr. Sikes after taking him back to
the section to ob,erve the conditions (Tr. 233). Respondent objected
to the introductio~ of the notes made by Inspector Jones on the ground
that the notes are not contemporaneous~ but rather, collateral notes
on matters which respondent was not aware of prior to the hearing.
The essence of respondent's objection is its assertion that failure
to make the notes available earlier in the proceedings, deprived
respondent of an opportunity to make an informed judgment as to
whether it should litigate the violations in the first instance.
The objection was overruled and the notes were received (Tr. 82,
Nov. 16).
Respondent's counsel questioned Inspector Jones regarding his
normal and usual practice with respect to notetaking. He indicated
that it was his usual practice to take notes so as to be able to
recollect what transpired with res.pect to a given violation which
is issued, that the notes are maintained in his personal custody,
and once written, he does not change them nor take them out of his
personal notebook. He takes notes at the mine site at the time of
the citation, and his inspector's statements are written up after
he goes back to his office, and, at times, he has referred to his
notes in compiling these statements (Tr. 83-88).
Respondent's objections to the introduction of the inspector's
notes are again rejected and my previous ruling in this regard is
reaffirmed. It is clear to me that the notes in question were contemporaneous notes made at or near the time of the issuance of the
citation. The inspector was cross-examined and respondent has not
been prejudiced. The inspector was free to refresh his recollection
from his notes, U~fivA v. Westmoreland Coal Company, Commission Docket
No. 76-16, January 10, 1979. Further respondent had ample opportunity

26

to obtain the notes prior to hearing, but failed to avail itself of
the discovery procedures in this regard. Respondent's counsel was
given an opportunity to review the notes at the hearing and to crossexamine the inspector. Respondent could have called Mr. Lavalley as
a witness, but did not do so. Consequently, in light of all of these
circumstances, respondent's assertions of 11 foul play" are rejected.
Respondent's preshift report for December 30 (Exh. R-1), contains a notation concerning "timbers" for the No. 3 entry, but no
such notations for the Nos. 4 or 6 entries where the timbering citations were issued. However, respondent failed to call the preshift
examiner who purportedly conducted the inspection and prepared the
report and I have given it little weight as any indication that the
conditions cited did not exist as charged.
Violation--30 CFR 75.200
In its answer of September 16, 1978, respondent contested both
the fact of violation and the proposed penalties assessed for two violations of section 75.200 (7-0112, 7-0113), and its defense was identical to that asserted in Docket No. DENV 78-522-P concerning_Violation
No. 8-0015, 75.200, issued January 30, 1978. As for its contest of
the proposed asses'sments of $1,200 for each of the roof control violations in this docket, respondent asserted that they are grossly
disproportionate to the amount of penalty assessed for the subsequent
similar violation issued in the previous docket ($115).
At the hearing of November 15, respondent conceded the fact of
violations and indicated that it desired only to contest the amount
of the penalties assessed for Violation Nos. 7-0112 and 7-0113 (Tr.
7). In the circumstances, I find that respondent violated the provisions of 30 CFR 75.200 as alleged in Citation Nos. 7-0112 and
7-0113, issued on December 30, 1977. Aside from respondent's admission that it was in violation of the cited standard, the evidence
adduced by the petitioner in support of its assertions that respondent violated the cited standard, support a finding of violation in
both instances. Further, it is clear that the failure of a mine
operator to comply with a provision of its own roof control plan
concerning roof support consitutes a violation of section 75.200 of
the mandatory safety standards. Peabody Coal Company, 8 IBMA 121
(1977); Affinity Mining Company, 6 IBMA 100 (1976); Dixie Fue 1 Company, Gray's Knob Coal Company, 7 IBMA 71 (1976).
Good Faith Abatement
Inspector Jones testified that the entire crew was assigned to
correct the conditions cited, and petitioner stipulated that the
respondent exercised good faith in abating the violations (Tr. 12,
14)~
I find that the violations cited were abated in good faith
by the respondent once they issued, and that respondent exhibited
normal compliance in this regard.
27

Gravity
Although Inspector Jones observed no men working under the unsupported roof areas or equipment operating in that area at the time he
issued the citations, the fact is that mining had taken place in the
areas cited on the previous shift, coal had been cut and loaded out,
and the area cleaned up. Thus, it is clear to me that men had worked
under unsupported roof during the previous mining cycles and were
exposed to that hazard. The fact that the roof did not fall on them
does not detract from the fact that working under unsupported roof
exposed the men working in those areas to potentially hazardous and
dangerous conditions.
The evidence and testimony adduced by the respondent in these
proceedings supports its contention that the roof conditions in the
mine are generally good, but this does not excuse the failure of the
respondent to install the roof supports required by its plan.
Further, the fact that the roof control plan permitted the removal of
one support post near the face to facilitate the movement and maneuvering of equipment during the mining cycle, does not excuse the failure
to install the r~maining posts required by the plan or to reinstall
the posts remove~once the mining cycle is completed. Here, the evidence establishes '.that the respondent failed to install a total of at
least 12 additional roof support timbers in the three entries cited
by the inspector.
The fact that mine roof conditions are generally good does not
insure against roof falls which could occur at any time in a mine as
the mining cycle advances and conditions change. Mr. Dania confirmed
that some roof settlement does occur during blasting at the face, and
while he also indicated that roof faults have not been encountered,
he based this on some 50 roof holes drilled over the 445 acres which
comprise the limits of the mine. While it is true that the mine in
question does not have a history of roof falls, Mr. Dania did indicate that a roof fall occurred approximately a year and a half ago,
but that the operator was aware of the loose roof conditions in
that instance and dangered the area off. He also indicated that
some roof flaking o6curs in older mine areas and. small pieces of
roof coal have been found in areas more recently mined.
As for the actual roof conditions which existed at the time of
the citations, Inspector Jones indicated that the roof in the No. 3
entry was not cracked. As a matter of'fact, his testimony does not
reflect the actual roof conditions which existed at the area cited
in Citation No. 7-0013. As for the roof conditions which existed in
the No. 4 entry (Citation No. 7-0012), he testified that it was
cracked, drummy, and flaking, inby the last roof support, and this
testimony remains unrebutted.

28

I find that both violations were serious. Men were working
under unsupported roof and were exposed to a potential hazardous
situation, particularly in the No. 4 entry.
Negligence
Both of the roof suport citations in this case were cited by
Inspector Jones during his inspection on December 30, and the citations involve the failure of the respondent to maintain roof support timbers to within 15 feet of the face in entry Nos. 3 and 4
in the Southwest section of the mine, as required by its approved
roof control plan. ·inspector Jones testified that he believed the
conditions cited existed for at least two mining cycles because
each cycle advances some 10 to 11 feet, and .since the timbers which
were in place at' the time of his inspection were installed to within
44 feet of the face in the No. 4 entry, and to within 33 feet of the
face in the No. 3 entry, he believed that mining had advanced at
least two cycles during the previous shifts without the installation
of additional roof support timbers. He also indicated that coal had
been cut during these previous shifts and that the entries were
loaded out and cleaned, but no additional roof support was installed.
Further, when he confronted the section foreman with the conditions
of the entries, the section foreman candidly admitted that the timbers were not installed, admitted that he was aware of this fact, and
attributed the failure to install the required roof supports to the
fact that the previous shift had left the section in the condition
found by Mr. Jones. Subsequently, when Safety Director Hales was
taken to the area cited by Mr. Jones, Mr. Jones related to him what
the section foreman had told him, and according to Mr. Jones' testimony, Mr. Hales expressed some embarrassment over the conditions of
the entries, as did Mine Engineer Sikes, who Mr. Jones claims agreed
with his findings.
Except for the testimony of Mr. Dania, respondent failed to call
any other witnesses in defense of the roof support citations. Thus,
Inspector Jones' testimony, documented by his notes taken at the time
in question, has not been rebutted by the respondent. After listening to Mr. Jones' testimony and viewing him on the stand during the
course of the hearing in this matter, I find him to be a credible
witness and I accept his testimony concerning the conversations he
had with mine management with respect to the conditions he found at
the time of the citations. As for Mr. Dania's testimony, he was not
present when the citations were issued', nor did he view the conditions cited by Mr. Jones. However, Mr. Dania candidly admitted that
one possible explanation for the failure to install the additional
roof supports in question was "bad mining practices" and "problems"
which have occurred in the past (Tr. 208).
Based on the foregoing, I believe it is clear that the respondent was well aware of the fact that the required roof support timbers were not installed as required by its own roof control plan.

29

While the evidence presented by the petitioner suggests a somewhat
cavalier attitude by mine management with respect to its own roof
support plan then in effect, and borders on gross negligence, I
cannot conclude that the record supports a finding of a deliberate
and reckless disregard for safety. While the section foreman on
the shift in question admitted he was aware that the timbers were
not installed, he attributed this to inaction by the previous shift,
and Mr. Danio attributed it, in part, to bad mining pra~tices. None
of the mine personnel from the previous shift were called to testify
by either the petitioner or the respondent and there is no explanation as to why the required timbers had not been installed after the
area was mined and cleaned up.
In view of the foregoing, I find that the respondent failed to
exercise reasonable care to prevent the violation and failed to exercise reasonable care to correct the cited conditions which it knew
existed, and that this failure on its part constitutes ordinary
negligence as to both section 75.200 Citation Nos. 7-0112 and 7-0113.
DOCKET NO. DENV 78-524-P
Fact of Violati\m--30 CFR 75.200
In its answer of September 18, 1978, respondent contested both
the alleged violation and the proposed penalty assessment of $500,
and its arguments in support of its contest were the same as those
made in the previous dockets. However, at the hearing, respondent
conceded the fact of violation and contested only the amount of the
proposed civil penalty (Tr. 7). I find that the evidence adduced
establishes a violation of section 75.200.
Good Faith Abatement and Negligence
My previous findings and conclusions, with respect to good faith
abatement and negligence concerning the roof support violations in
Docket No. DENV 78-523-P, Citation Nos. 7-0112 and 7-0113, are herein
incorporated by reference as my findings and conclusions concerning
Citation No. 7-0110 in this docket. I find that respondent exercised
,normal good faith compliance in abating the cited condition, and
failed to exercise reasonable care to prevent a condition which it
knew existed and that this failure on its part constitutes ordinary
negligence.
Gravity
With regard to the actual roof conditions which existed in the
No. 6 entry at the time the citation issued, Inspector Jones test
fied and confirmed his previous finding that the roof was drummy and
cracked. He also testified that he found some 6 feet of loose roof
ceal present inby the last support which was ready to fall and had
30

to be barred down. While he did not know whether that condition
existed on the previous shift while men were working in that area,
it is reasonable to conclude that it did, and respondent presented
no testimony or evidence to rebut the inspector's testimony. In
the circumstances, I conclude and find that the violation was
serious.
Petitioner's Assessment Procedures and Inspector Practices
During the course of the hearing and in its posthearing brief
and proposed findings and conclusions, respondent emphasized what
it believes to be a most inadequate and often misleading use of the
inspector's stat~ment, a form usually filled out by an inspector
after a citation is issued. The form contains information regarding
negligence, gravity, and good faith compliance, and it is completed
by the inspector who issues a citation and used by the assessment
officer in evaluating a particular violation and arriving at an initial civil penalty assessment. While I am in agreement with the
respondent's observations that these statements sometime contain
inadequate and unsupported conclusions, and often present only the
unfavorable portions of an inspector's comments or observations, I
cannot conclude,that this results from any deliberate or conscious
effort by the in'spector to bolster or support his actions. For the
most part, I believe the practices complained of result from the use
of standardized subjective forms which place the inspector in the
position of making a one-sided evaluation in order to support the
action taken by him. Further, once the matter is referred to the
assessment officer, unless there is some imput by the operator at a
conference, the only information available to the assessment officer
is the bare notice and the inspector's statement.
One example of what I consider to be a misleading inspector's
statement
Exhibit P-9, dealing with a violation of section 75.313
(Docket No. DENV 78-522-P). Although the inspector checked several
of the gravity blocks, he indicated 11 none" under the "Remarks" portion of the form, completely struck out the "Good Faith" portion,
and indicated that 20 workers were exposed to the hazard presented
by the violation. During the hearing, the inspector testified that
he extended the notice several times because of needed parts to
repair a methane monitor, that he made a mistake in noting that
20 miners were exposed to any hazard, when, in fact, it should· have
reflected only those actually working on the shift, and that he
crossed out the "Good Faith" portion of the form because he is
instructed not to fill that portion o~t when an order has been
issued. While it would appear from the evidence presented at the
hearing, that the scoop in question was initially removed from the
mine to effect repairs, but subsequent problems ensued once the
scoop was brought back into the mine, and the violation was nonserious because of the lack of methane, those facts are not
reflected in the inspector's statement.
31

Another example noted in these proceedings is Exhibit P-3, concerning the cable violation (Docket No. DENV 78-521-P. The inspector's statement indicates "probable" and "disabling" under the
"Gravity" portion of the form, when, in fact, the testimony at the
hearing reflected that the cable was disconnected and not energized,
and the inspector testified that the violation was nonserious. While
the form on its face contains a space for the inspector to note conditions or circumstances which might have decreased the severity of
the condition, it is simply marked 11 none 11 in the "Remarks" portion.
I take note of the fact that the inspector who issued the aforementioned citations was a new inspector who was simply attempting to
perform his duty to the best uf his ability, and the fact that he
candidly admitted on reflection that his wr1tten analysis of the
situation made at the time of the event may have been somewhat misleading is to his credit. However, this is an area which should be
addressed by MSHA in its inspector training programs, particularly
when it results in a somewhat unrealistic or subjective assessment
evaluation by an assessment officer who all too often is engrossed in
applying "special formulas 11 and other such mathematical machinations
in attempting\to apply the criteria set forth in Part 100, T~tle 30,
Code of Feder~J Regulations, to any given violation.
Having made my observations with respect to problems which are
encountered with inspectors' statements and the application of
Part 100, it is only fair to make some observations with respect to
an operator 1vho 11 sleeps 11 on his rights. In these cases, the mine
operator had a full and fair opportunity to avail himself of the
opportunity to submit any information pertaining to the cited violations to the Assessment Office and to request a conference for the
purpose of bringing to the attention of the Assessment Office mitigating circumstances which he believes warrant consideration in
arriving at a fair and equitable initial civil penalty assessment.
Apparently, this was not done in these cases. Further, the respondent presented little substantive testimony in defense of the cited
violations and the principal thrust of its case centered on an attack
on .MShA's enforcement practices, Enforcement of the Act and the
promulgated mandatory safety and health standards lies with the
Secretary and is solely within his jurisdiction and authority. My
jurisdiction is limited to the adjudication of cases after the operator has been afforded an opportunity to be heard. In these cases,
I cannot conclude that the enforce~ent practices complained of by
the respondent were so arbitrary or capricious as to warrant dismissal of the citations and the petitions for assessment of civil
penalties filed by the petitioner. To the contrary, I believe it
is clear from the record that the respondent has had a full and
fair opportunity to be heard and to present its defense.

32

Conclusion
On the basis of the foregoing findings and conclusions, respondent is assessed civil penalties for the violations which have been
e•t~blished, as follows:
Docket No. DENV 78-521-P
Citation No.

Date

30 CFR Section

Assessment

8-0005

1/09/78

75.517

$25

75 .313
75.200

$25
$250

75.316
75.200
75. 200

$150
$1,000
$850

75.200

$1,000

Docket No. DENV 78-522-P
8-0010

8-0015

1/19/78
1/30/78

Docket No. DENV 78-523~P
7-0111
7-0112

7-0113

12/30/77
12/30/77
12/30/77

Docket No. DENV 78-524-P
7-0110

12/30/77
ORDER

Respondent is ORDERED to pay the penalties assessed in these proceedings, as indicated above, in the total amount of $3,300 within
thirty.(30) days of the date of these decisions.

Distribution:
Edward Fitch, Trial Attorney, Office of the Solicitor, MSHA,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA
22203
Robert L. Morris, Esq., Western States Coal Corp., 2600 Colorado
National Bldg., 950 17th Street, Denver, CO 80202 (Certified
Mail)
Standard Distribution

33

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

March 5, 1979

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

Civil Penalty Proceedings
Docket No. PITT 78-368-P
A/O No. 36-00906-02016 V

v,

GATEWAY COAL COMPANY,
Respondent

Docket No. PITT 78-369-P
A/O No. 36-00906-02017 V
Gateway Mine

DECISION
Appearances:

David F. Barbour, Esq., Office of the Solicitor,
Department of Labor, Arlington, Virginia, for
Pet;itioner MSHA;
R. H~nry Moore, Esq., Rose, Schmidt, Dixon, Hasley,
Whyte & Hardesty, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Merlin

The above-captioned cases are petitions for the assessment of
civil penalties filed by the Mine Safety and Health Administration
against Gateway Coal Company, the respondent,

..

At the outset of the hearing, operator's counsel challenged
MSHA s assessment procedures. I.held that the hearing before me
is de novo in all aspects, and that NSHA's assessment procedures
are-;ot involved stating in this respect as follows (Tr. 16-17):
1

I hold I have no jur

diction to review the Secretary
There is no point in
taking evidence regarding the assessment procedures because
it does not lie within my jurisdiction to do anything about ·
it.

of Labor 1 s asse.ssment procedures.

The hearing before the Administrative Law Judges of
the Commission in penalty cases are entirely de novo.
The proposed assessments not only are not binding upon me,
but I wholly reject any notion that they have an influence
potential, or actual, upon the ultimate determination I
make in any given instance.

I determine the existence of a violation in a hearing
such as this based solely upon the record, documentary and
testimonial, which is made before me. Where I conclude a
penalty exists, I determine the amount of penalty in
accordance with the statutory criteria, based, once again,
solely upon the record made before me.
I note that section 2700.24 requires that the petition
for civil penalties include the proposed penalties. This,
obviously, has to do with the settlement process concerning
which, as both.counsel well know, Congress expressed
serious concern.
This concern found expression particularly with
respect to the reduction of original assessments. But this,
again, dealt only with the settlement process. Once we
come to a hearing on the merits, as we are doing here, the
entire matter is de novo; and I am not influenced by anything except the record that is made before me in this room.
It makes no difference in this penalty proceeding
whether the alleged violation was cited in an order of
withdrawal~ or in a notice of violation.
The issue before
me is not whether a notice, instead of an order, should
have been issued; or whether, in particular, the issuance
of an unwarrantable order was justified.
The Act very specifically sets forth the type and
nature of hearing to be held in penalty cases. I do not
believe the Administrative Law Judges have been given the
authority to oversee the Secretary's assessment procedures;
especially where, as here, those procedures have no effect
whatsoever on the ful llment and discharge of my
responsibilities.
Item 7-0121
At the hearing, documentary exhibits were received and witnesses
testified on behalf of MSHA and the operator regarding this item. At
the conclusion of the taking of evidence, the parties presented oral
argument (Tr. 78-88). A decision was then rendered from the bench
setting forth findings, conclusions, and determinations with respect
to the alleged violation as follows '(Tr. 88-91):
Based upon the testimony which I have heard this
morning, I find the violation existed. I accept the
inspector's description of the cited condition as consisting of loose coal, coal dust, and float coal dust
ten feet wide, SO.feet long, and up to six inches in
depth with most of the depth consisting of float coal
dust.
2

The inspector's testimony regarding the condition
is the most detailed and, therefore, the most persuasive
evidence on the point. I also accept the inspector's
opinion that this condition existed for more than
eight hours.
I conclude that the operator should have been aware
of these accumulations, and that it did not take the
necessary steps to clean them up. I further accept the
inspector's view that the materials in question should
have been cleaned up before the midnight shift ended
and that because they were not so cleaned up, the operator permitted them to exist within the purview of section 75.400. · For all these reasons, therefore, I find
a violation.
With respect to gravity, the inspector on direct
testimony referred to danger from explosion, fire, and
dust among other things. However, on cross-examination,
the inspector stood by his contemporaneous written statement to the effect that it was improbable that any of these
hazards\would occur. He specifically referred to the good
condition of the rest of the section, which was rock
dusted, the good condition of the roof, and the presence
of water hose. In this connection, I also note the limited
extent of the accumulation. Therefore, while the violation
is serious because it presents a danger to the safety of
the miners, it is not as serious as it would first appear.
In light of the foregoing, I conclude the violation is of
ordinary gravity.
Based upon the facts already set forth, I find the
operator was negligent because it should have been aware
o~ the accumulations; and should have cleaned them up
at least on the prior midnight shift.
I take into account the history of prior violations
shown on the printout. However, in the absence of the
definitive information regarding statistics for violations
of section 75.400, I cannot accept the Solicitor's ballpark representation that the operator's violations of that
mandatory standard amounting to approximately 56, is
excessive when compared with 'the record of other operators.
However, as operator's counsel himself pointed out, there
were 18 violations of section 75.400 in 1977. I take all
the foregoing into account in considering the operator's
prior history as well as the fact that its record apparently improved with respect to 75.400 in 1978.
3

In accordance with the stipulations agreed to by the
parties, I find the operator is large in size. In accordance with the stipulations agreed to by the parties, I
find this violation was abated in good faith. In
accordance with the stipulations of the parties, I find
that the assessment of any penalty will not affect the
operator's ability to continue to do business.
In light of all foregoing factors, the penalty of
$400 is hereby assessed.
Item 7-0117
The Solicitor moved to withdraw this item without prejudice
because the inspector could not testify due to a serious illness.
The motion, which was granted from the bench, is hereby affirmed
(Tr. 10).

Item 7-0128
The parties recommended a settlement of $400 for this violation
of section 75 .4'QO. The Solicitor advised that the accumulations in
this instance were comparable to those in Item 7-0121 concerning
which a hearing had been held, and that in this instance also, the
inspector would testify that the occurrence of any danger was improbable. Accordingly, the recommended settlement of $400 was approved
from the bench and is hereby affirmed (Tr. 92-94).
Item 7-0131
The parties recommended a settlement of $400 for this violation
of section 75.400. Once again, the Solicitor advised that although
this violation was composed of three separate accumulations, it was
comparable in nature and extent to those already considered.
Accordingly, the reconunended settlement of $400 was approved from
the bench and is hereby affirmed (Tr. 94-95).
Item 7-0133
The parties recommended a settlement of $2,500 for this violation of 75.400 which involved 4,400 feet of loose coal, coal dust,
and float coal dust. According to the Solicitor, the violation was
visually obvious and very serious, although in mitigation of gravity,
the Solicitor stated there were no roof or electrical defects. I
approved the recommended settlement from the bench on the ground
that $2,500 was a substantial penalty which would effectuate the
purposes of the Act. The approval of the settlement is hereby
affirmed (Tr. 97-99).
4

Item 7-0110
The parties recommended a settlement of $300 for this item, which
was a violation of 75.1107-l(b), because eight sprays on the continuous miner were not working. The Solicitor pointed out that gravity
was mitigated because 12 other sprays on the machine had not been
cited, and there were no electrical defects or accumulations of
grease or oil on the machine. Accordingly, the recommended settlement was approved from the bench and is hereby affirmed (Tr. 95-97).
Item 7-0111
The parties recommended a settlement of $500 for this violation
of 75.601 which involved the use of a jumper cable without shortcircuit protection for one hundred feet. In mitigation of the penalty amount, the Solicitor pointed out that the operator had shown
an improving safety record with respect to this mandatory standard.
I found the violation serious and stated that were it not for the
operator's improving safety record, a higher penalty would have been
imposed. However, in view of all the circumstances, the recommended
settlement was accepted from the bench and is hereby affirmed (Tr.
99-101).
ORDER
I note that the originally assessed amounts were $4,000 for
each of the accumulations violations. These amounts are excessive,
especially with respect to violations where the inspector himself
admitted the occurrence of any danger was unlikely. The originally
assessed amounts of $1,500 for the other violations also were too
great in light of the circumstances. I state, as I have before,
that the imposition of such large amounts unwarranted by the facts
does not serve any valid program purpose.

The operator is ORDERED to pay $4,500 within 30 days.

~J_~

Paul Merlin
Assistant Chief Administrative Law Judge

Issued:

March 5, 1979

Distribution:
David F. Barbour, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203

R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley, Whyte &
Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified
Mail)
5

Distribution Cont'd.
Administrator, Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

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

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

Civil Penalty Proceeding
Docket No. BARB 79-60-P
A/O No. 01-01721-03001
Coal Branch Strip Mine

HALLMARK & SON COAL COMPANY,
Respondent
DISAPPROVAL OF SETTLEMENT
ORDER TO SUBMIT ADDITIONAL INFORMATION
The Solicitor recommends settlement approval for the originally
assessed amounts. However, the Solicitor gives no reasons beyond the
bare statement that the proposed settlement is reasonable in light
of the alleged g,ravity and negligence of each violation. The gravity
and negligence of the violations are not explained. The parties must
recognize that once a matter is before the Commission recommended
settlements cannot be approved solely because the operator now agrees
to pay the assessed amounts.
Accordingly, the Solicitor is ORDERED on or before March 15, 1979
to submit information sufficient to support his recommendation.
Failure to do so will result in issuance of a show cause order and
dismissal of the petition.

-=\)J

Paul Merlin
Assistant Chief Administrative Law Judge

Issued:

March 5, 1979

Distribution:
Leo J, McGinn, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Thomas L. Stewart, Esq., Waldrep, Stewart & Kendrick, 1507 City
Federal Building, Birmingham, AL 35203 (Certified Mail)

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

March 5, 1979

Applications for Review of
Discrimination

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

Docket Nos. PITT 78-458
PITT 79-36
PITT 79-35

On behalf of:
DAVID PASULA, WILLIAM KALOZ,
RALPH PALMER, JAMES COLBERT,
BRYAN PLUTE, LAWRENCE CARDEN,
Complainants

Montour No. 10 Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Eddie Jenkins, Esq., Robert Cohen, Esq., Office of
the Solicitor, Department of Labor, for Complainants;
Kenneth J. Yablonski, Esq., United Mine Workers of
America, for Complainants;
Anthony J. Polito, Esq., Rose, Schmidt, Dixon, Hasley,
Whyte & Hardesty, Pittsburgh, Pennsylvania, for
Respondent;
Karl Skrypak, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Administrative Law Judge Charles C. Moore, Jr.

These consolidated actions were brought by MSHA on behalf of
David Fasula and those members of his working crew that were idled on
two separate occasions. David Pasula alleges discrimination in that
he was fired and the other workers alleged discrimination in that
they were deprived of two half-shifts of work and payment because of
a complaint of a safety violation. Pas~la, the continuous miner
operator, had been previously reinstated pursuant to an order issued
by Acting Chief Administrative Law Judge Broderick, but he was not
actually reinstated as a continuous miner operator. He was paid at
the rate appropriate for a continuous miner operator, however.

On May 31, 1978, David Pasula was on a crew working the 12 midnight to 8 a.m. shift. When he got to his continuous miner he found
the methane monitor on the machine inoperative and so informed a
mechanic and his section foreman. The mechanic decided that an
entire module was necessary, and the section foreman telephoned the
shift foreman to see if such a module was available.
The shift foreman inquired and learned that the part which the
mechanic said was necessary would not be available until the next
morning. The exact sequence of events following is not clear, but,
the shift foreman was at the face area and did request that David
Pasula operate the continuous miner without a methane monitor for a
period of time. David Fasula may have been willing to operate the
machine for a time, but not as long a time as the shift foreman
desired (until 8 a.m.). There was testimony that some Federal
inspectors do not consider it a violation to operate a continuous
miner without a methane monitor for short periods of time as long as
the required 20-minute methane checks are made. Regardless of the
exact communications, Mr. Pasula did not operate the continuous miner
as requested and as a result, his crew could not produce coal in the
the 1 West section. The assistant master mechanic, who might have
been able to repair the machine (I say this because the next day a
mechanic did repair the machine in about half an hour without replacing the module), was in the 1 Northeast section working on a continuous miner which had been partly buried by a roof fall.
Mr. Pasula and the other complainants in his crew were sent home
and paid for 4 hours even though they did not work quite that long.
It is the contention of these crew members that there was other work
to do in the mine which they could have been assigned to do, and that
they were sent home after 4 hours only because Mr. Pasula refused to
operate the continuous miner without a methane monitor. They thus
contend that they were deprived of 4 hours of pay on May 31, 1978.
Subsequent to the crew's midnight departure from the 1 West section, the chief mechanic and other mechanics fixed the other continuous miner in 1 Northeast section by replacing a number of the gears
and then extracting the miner from beneath the rock fall area. When
the Pasula crew arrived for their next shift on June 1, 1978, starting
at midnight, they were assigned to the 1 Northeast section where the
continuous miner had been under a roof fall during their previous
shift. During the repair of that continuous miner, new gears had
been mixed with old gears and as a result, the machine was extra
noisy because the gears did not mesh properly. It was the testimony
of all of the knowledgeable people that addressed the subject that
gear meshing noises of this sort do reduce in volume as the machine
is operated. Repairs on the miner had been completed on the shift
previous to Mr. Pasula's and the machine was used in mining for
several hours during that previous shift.
2

The machine was so noisy, however, that the operator (who had a
hearing loss) shut it off when the shuttle cars were not in position
to load coal, whereas his usual procedure is to let the machine
idle while the shuttle cars are not in the area.
Pasula noted the loudness of the machine but nevertheless, operated it for about an hour and a half before he decided he had had
enough. He stated that he had a headache, that his ears hurt and he
was nervous and that when he attempted to complain to the section
foreman, he found the section foreman asleep in the dinner hole. This
was later denied by the section foreman. I find it unnecessary to
determine whether the section foreman was asleep or not because it is
clear that Mr. Pasula thought he was or he ~ould not have phoned the
shift foreman directly instead of talking first to the section foreman. No one has suggested an ulterior motive on Mr. Pasula's part
regarding this direct contact with the shift foreman, and no one has
suggested a reason why he should invent the story that the section
foreman was asleep.
Mr. Pasula told the shift foreman about the noise the machine was
making, told him about his headache, nervousness and hurting ears and
requested that a noise level test be made on the machine before he
operated it further. After that conversation, the shift foreman telephoned the mine manager to inquire as to whether they were required to
make a noise level test in the circumstances, and he was informed that
the law did not require such a test.
Subsequently, the assistant master mechanic, the shift foreman,
a member of the safety committee, and the section foreman met at an
intersection near the face where the continuous miner was located.
At the time, Mr. Pasula and his helper were doing some other work that
had.been assigned and were not present when one of the mechanics
started the machine so that the others could listen to it run. Even
though he had not heard the machine running at the face with all
motors running, the safety committeeman had already agreed with management that the machine was not too loud to operate before Mr •. Fasula
and his helper returned to the scene, When Mr. Pasula heard this, he
became very upset. Harsh words were spoken and Mr. Pasula continued
to demand that a noise level reading be taken on the machine. Management refused to comply. Mr. Fasula then said he would not operate the
machine and tbat nobody was going to operate it.
' anybody ever asked the
There is some question as to whether
helper to run the machine, but it does not matter because he would
not have run it in any event. He so testified and it is a general
longstanding mine custom that when one miner will not operate a piece
of equipment, another one will not. The section was then shut down
and the miners on that particular crew were taken from the mine. All,
except Mr. Fasula, were paid for 4 hours of work and he was paid for
3-1/2 hours, the difference being that he had refused to run the
machine and was therefore not paid for the last half hour. At one

3

point during the discussions, Mr. Pasula said he wanted to call a
Federal inspector to take a noise level reading. He was told he
could not use any phone on mine property for that purpose. Before
leaving the mine, Mr. Pasula did ask for othei. work, but was told
that with the miner down and, with no production, there would not
be any other work.

Mr. Pasula was subsequently fired and he filed a grievance under
the union contract. This resulted in an arbitration proceeding before
David L. Beckman, Esq., and his written decision in the matter was
received in evidence as Consol Exhibit No. 10. A copy of that decision was al so attached as· Exhibit A to Respondent' s answer to the
complaint.
As to the weight that should be given to the decision of the
arbitrator by me, the cases cited in the briefs indicate that it is
a matter of discretion. In exercising that discretion, according to
the cases, I should consider the qualifications of the arbitrator and
the type of hearing that was held. From the information submitted
during the trial it appears that the arbitrator was a well-qualified
attorney and th~t the testimony before him was under oath.
Mr. Beckman, of course, had to rely on the evidence presented to
him and I have no idea as to what that evidence was. I have noted
some findings in his opinion that are inconsistent with the evidence
presentfd to me and with my knowledge of the regulations involved.
He may have been told otherwise, but the statement on page 13 of the
opinion to the effect that an inspector has no authority to shut down
a machine because of a noise violation is incorrect. While several
of the witnesses indicated their understanding that noise violations
would not result in closure, there is no question but that if a noise
violation, like any other violation, is unabated, and if the inspector
does not consider a further extension of time justified, a withdrawal
order will be issued. And such orders have been issued. The implication that noise violations are not serious enough to close a mine
is not correct. Also, it appears that Mr. Beckman's reliance on the
inspector who tested the noise level of the machine may have been
misplaced. The machine had been running for approximately 2 hours
after Mr. Pasula and his crew left the mine by the time the noise
level test was made by the inspector. The purpose of allowing the
machine to idle during that time was to let the gears mesh and reduce
the noise level on the machine. Assqming that the idling of the
machine had the effect that it was designed to have, i.e., reduce
the noise level, and despite the inspector's possible-testimony
before Mr. Beckman and his statement in writing which he presented
to Respondent, the machine was still too noisy for anyone to legally
operate for an 8-hour shift.

The machine in question was producing 93 decibels with only the
pump motor running and was producing 103 decibels with the pump motor

4

and the conveyor running and while mining coal. The limit for an
8-hour shift is 90 decibels. It would have, therefore, been illeg~l
to require an operator to sit in this machine and idle the engine for
an 8-hour shift. While evidence was introduced as to how much time,
during an 8-hour shift, a mining machine is actually cutting coal,
tramming, idling, or off, such evidence was inconclusive. This is
especially true since Consolidation Coal, the proponent of the study,
was of the erroneous opinion that it was standard practice to shut
the machine off while awaiting a shuttle car.
I cannot imagine what prompted the inspector to imply, if not
state, that a machine producing 93 decibels could not be involved in
a violation of the standard. As previously stated, it certainly would
be a violation if one miner .were to idle the machine for 8 hours.
It would clearly be a violation if any miner operated the machine
cutting coal at 103 decibels for an hour and a half because that would
be a violation even i{ the machine only produced 102 decibels. 1/
The inspector did not appear before me to explain his evaluation of
the machine, and in the absence of any such explanation, I will not
accept his statement that the machine was in compliance with the
noise standard, b·~ause that compliance obviously depends on how long
a particular miner \is exposed to either. the 102 or 93 dee ibel levels.
I therefore agree with the contention in MSHA' s reply brief that
Consol Exhibit No. 12 does not show that the continuous miner was in
compliance with the noise standard.

Arbitrator Beckman's decision, despite differences pointed out
above, generally agrees with the facts as I have found them here.
His decision was based on the wording of the union contract, however,
and not on the language of section 105(c) of the Federal Mine Safety
and Health Act of 1977. Under the union contract, if a miner thinks
that his health or safety is in jeopardy (the wording is similar to
the description of an inuninent danger under the Federal law) he is
entitled to have a member of the safety committee examine the situation. If management and the safety committee member agree that there
is no hazard involved, then the miner is supposed to go back to work.
At least that is the way the contract was interpreted by Mr. Beckman
and according to Consol's reply brief filed on February 2, 1979, that
decision has been affirmed. The Federal provision states "No person
shall discharge or in any manner discriminate against * * * a miner
* * * because such miner * * * 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 * * *." (Emphasis added. J
·
Arbitrator Beckman concludes that David Pasula was fired because
of his refusal to operate a continuous miner and because of his past

):J

See 30 CFR 70.510.
5

record. That past record is referred to.on page 14 of Mr. Beckman's
decision and includes four items. The first was for insubordination
on December 22, 1976, which resulted in a verbal warning. Details
are not contained in the ·file. The second on January 27, 1977, .concerned a confrontation with a mine pay clerk and a written warning
was issued to Mr. Pasula. The confrontation involved work that
Mr. Pasula had done and not been paid for. I think the pay clerk
should have received the written warning. The third item on
March 22, 1977, concerned a charge of altering a medical form and
there was an arbitrator's decision which was introduced in evidence
as Consol Exhibit No. 3. There are three lines obliterated on page 3
of the exhibit and two lines obliterated on page 4. So, I must assume
that whatever was said in these five lines, it was something Consol
did not care to include in the record. Whatever that material was, I
do not see how it could rehabilitate that decision in view of the
evidence that was presented at the hearing in the instant case. The
evidence that was presented to me indicated that Mr. Fasula had done
nothing wrong, but I have no idea what evidence was presented before
Arbitrator Pollock. In any event, the arbitrator was presented with
the question of whether or not Mr. Fasula altered medical forms.
Instead of decid~ng that question either on the evidence or if necessary by assigning\the burden of proof, the arbitrator proceeded to
strike a balance somewhere in between. He found Mr. Pasula somewhat
guilty, but not altogether guilty and therefore modified the penalty
imposed by the company. Consol Exhibit No. 3 does not indicate that
Mr. Pasula was wrong in connection with the medical records event.
The doctor who failed to fill out the proper forms may have deserved
a suspension, but not Mr. Fasula. As to the fourth charge mentioned
by Mr. Beckman, interference with management, which resulted in a
3-day suspension for Mr. Fasula, the evidence indicates that on that
occasion there was a labor dispute and that Mr. Fasula and his fellow
workers complied with the directions of the safety committeeman. But,
on June 1, 1978, when Mr. Fasula chose to ignore the advice of the
safety committeeman, he was fired. I find the entire record of
Mr. Pasula 1 s so-called past misconduct, contrived and unconvincing.
I therefore, completely disagree with Mr. Beckman's decision in this
regard.
It is the position of MSHA and the union, that Consolidation Coal
Company's actions have shown that whenever a section is shut down
because of a safety complaint by a miner, then the miners will be
sent home for the second half of the s~ift, but if it is for some
other reason, the miners will be given other work for the remainder
of the shift. I find that no such pattern has been established. If,
on May 31, 1978, the section had been shut down because the continuous
miner was inoperative due to a faulty methane monitor, the fact that
the miners were sent home, rather than being given other work to do,
would not establish discrimination. -Certainly the fact that they
were paid for 4 hours of work, but not required to actually stay in
the mine for that 4-hour period would indicate that there was no
vindictiveness on the part of management.
6

But, the section was not shut down because of the faulty methane·
monitor. It was shut down because of David Pasula's refusal to run
the machine without that necessary piece of equipment. Despite his
equivocation, evasiv.eness and nonresponsiveness, I find that Shift
Foreman Neal did try to get Mr. Pasul~ to run the machine for the
remainder of the shift without an operable methane monitor. On
Mr. Pasula's refusal, the section was closed and the miners were
sent home. Several mechanics, including the assistant maste~
mechanic, were working on a continuous miner which. had been buried
in another section, ·and I have no doubt that they, or at least the
assistant master mechanic could have fixed the methane monitor in a
short period of time. The fact that there were other pieces of equipment in the section with discrepancies is h~t important because if
it had been important, Mr. Neal would not have asked Mr. Pasula to
operate.the machine without the methane monitor. Mr. Bigley, the
assistant master mechanic, said he could not leave the other section
with the mechanics working on the partially buried continuous mining
machine, because of the danger in that other section. He was somewhat over-dramatic as though he thought that his presence would
somehow keep the roof from falling on these other mechanics, but
if he really thought they were in danger, and if management had
been interested i~keeping Mr. Pasula's section open, all of the
mechanics could have come over to the 1 West section, fixed the
methane monitor, repaired whatever discrepancies existed, and then
gone back to their half-buried continuous miner. The fact that management chose not to pursue this course of action is a further
factor indicating that they were punishing Mr. Pasula and his crew
for his refusal to operate the continuous miner illegally for an
8-hour period.
I find that all miners working in the 1 West section on May 31,
1978, in Mr. Pasula's crew who were idled and unpaid for half of that
shift and who are also Complainants in these proceedings, are
entitled to be paid for the second half of the shift.
As to the incident on June 1, 1978, which resulted in the firing
of Mr. Pasula, I have already indicated what I think of Mr. Pasula's
past record of disciplinary actions. Inasmuch as the abusive language used by Mr. Pasula was directed towards Mr. Cushey, a fellow
miner, and not towards supervisory personnel, that language could not
reasonably be a part of the justification for his discharge. This
leaves only Mr. Pasula's insubordinatiop in refusing to operate the
continuous miner as a possible justification for the action taken by
the co:.ipany. The company argues that Mr. Pasula' s refusal to allow
anyone else to operate the continuous miner was a dispositive factor.
It was apparently when Mr. Cushey, the safety committeemen, suggested
that Mr. Fisher operate the machine that Mr. Pasula said that the
machine was down and nobody was going· to operate it. But as stated
earlier, according to mine custom, Mr. Fisher would not have operated
7

the machine in any event. Also, the company seems to be taking
inconsistent positions regarding Mr. Fa.sula' s aut;hority. On the
one hand, the company says he shut down the machine and refused to
allow anybody to operate it by an oral statement, and on the other
hand, the company is saying that he had no authority to do so. There
was no evidence that any foreman told the miners that Mr. Pasula
lacked authority to shut down the machine. On the contrary, their
actions seemed to concede that he did have that authority.
It must be remembered, that when Mr. Fasula refused to run the
continuous miner, it was not a flat refusal. He refused to run it
until or unless a· noise lev~l test was made, and he demanded that
such fl test be made. He even informed his superiors that he knew how
to make the test himself if they would provide the apparatus. And
while I have indicated earlier that the machine could have well been
producing enough noise to justify a notice of violation, it does not
really matter. The Act protects a miner who is disciplined because
he alleges a violation, whether a violation exists or not. There is
no doubt in my mind that Mr. Fasula was discharged because he was
complaining about the noisy machine and demanding that a noise level
test be made. Management's evidence indicated to me that it does not
take noise violation~ too seriously. The refusal of management to
allow Mr. Pasula to use a phone on mine property to call in a Federal
inspector for the purpose of taking a noise level test adds nothing
to management's attempt to show a good faith discharge of Mr. Pasula.
I think management had had enough of Mr. Fasula and his health
or safety complaints and decided to get rid of him. The other miners
on the crew just happen to be caught up in the same situation, but
the'fact remains that they were punished i.e. discriminated against,
because of Mr. Pasula 1 s complaint. They and Mr. Fasula are thus
entitled to pay for a full shift on June 1, 1978. This ruling of
course applies only to miners who are complainants in these proceedings. Mr. Pasula is entitled to remain in his position as a continuous miner operator and is entitled to actually operate the equipment
rather than merely being paid as a continuous miner operator.

ORDER
It is therefore ordered that Consolidation Coal Company pay to
the complainants herein the difference between what they were actually
paid for work on May 31, 1978, and June l~ 1978, and the appropriate
pay for working two entire shifts. It is further ordered that
Mr. Pasula be actually reinstated in his former job as a continuous
miner operator. This order is to be complied with within .30 days and the
8

previously issued temporary reinstatemen~ order will remain in effect
until the instant order becomes a final and enforceable order of the
Federal Mine Safety and Health Review Commission.

~e;?;~P,.

Charles C. Moore, Jr.
Administrative Law Judge
Issued: March 5, 1979
Distribution:

Eddie Jenkins, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Arlington, VA 22203 (Certified Mail)
Anthony J. Polito, Esq., Rose, Schmidt, Dixon, Hasley, Whyte &
Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified
Mail)
Alan B. Mollohan, Esq., Rose, Schmidt, Dixon, Hasley, Whyte &
Hardesty, 818 Connecticut Avenue, Nw., Washington, DC 20006
(Certified Mail)
Kenneth J. Yablonksi, Esq., 505 Washington Trust Building,
Washington, PA 15301 (Certified Mail)

9

FEOERAl f1;1H~~E 51-"u;;·r-.:TY Al\H) NEALTM REVuEVil COi.JH'VHSSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

4015 WILSON BOULEVARD

ARLINGTON, VIRGINIA 22203

March 7, 1979

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

Civil Penalty Proceeding
Docket No. DENV 78-576-P
02-01195-03003

v.

Kayenta Mine

PEABODY COAL CO.
Respondent
DECISION
On February 23, 1979, the Mine Safety and Health Administration
(MSHA), moved the Judge to approve a settlement to which the parties had
agreed, and dismiss the above-captioned.
The alleged violations and proposed settlements are as follows:
Number

Date

30 CFR Standard

Assessment

Settlement

00387806 A

6/08/78

77. 509

$655.00

$624.00

00387806 B

6/08/78

77. 516

655.00

624.00

00387806 c

6/08/78

77.516

655.00

624.00

00387806 D

6/08/78

77. 516

960.00

768.00

00387806 E

6/08/78

77. 505

655.00

624.00

00387806 F

6/08/78

77. 505

655.00

624.00

00387806 G

6/08/7~8

77. 807

655.00

624.00

As grounds to support the proposed 20% reduction in each assessment
MSHA avers:
"Each of the alleged violations was part of a 107(a)
[imminent] (sic) danger order. Further investigation
has revealed that the gravity of each individual alleged
violation was not as great as initially evaluated. In
addition, the violations were all issued in connection
with a temporary power system of small size and there is
some question as to the application of a number of the cited
provisions of the National Electrical Code to the temporary
conditions existing at the time the order was issued."

As the above settlement is within the bounds of reason, does not
shock the conscience, and will effectuate the deterrent purpose of civil
penalties under section llO(a), it is hereby APPROVED.

The above-captioned is DISMISSED.
The hearing scheduled for Thursday, May 3, 1979, in Denver,
Colorado, is hereby VACATED.

~a!:f:}:tl~
Administrative Law Judge

Distribution:
Marshall P. Salzman, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 10404 Federal Building, 450 Golden Gate Ave.,
Box 36017, San Francisco, California 94102 (Certified ~fail)
Peabody Co~l Co., 301 N. Memorial Dr., St. Louis, Mo. 63102
(Certified ~ail)
Thomas F. Linn, Attorney, P.O. Box 235, St. Louis, Missouri 63166
(Certified Mail)

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

MAR 8 1979
MAGMA COPPER COMPANY,
Applicant
v..

Application for Review

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

San Manuel Mill

Docket No. DENV 78-533-M

and

UNITED STEELWORKERS OF AMERICA,
Respondents
DECISION
Appearances :

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills,
Phoenix, Arizona, for Applicant;
Michael V. Durkin, Esq., Office of the Solicitor, U.S.
Department of Labor, for Respondent MSHA.

Before:

Administrative Law Judge Lasher

I.

Statement of the Case

Applicant seeks review of Order No. 376821 dated July 26, 1978,
which was issued by MSHA inspector Chester A. Pasco. The order was
issued pursuant to section 104(b) of the Federal Mine Safety and
Health Act of 1977 1/ citing Applicant with failing to abate a previously issued citation within the time required. The citation,
which was issued earlier on July 26, 1978, by Inspector Pasco, cited
Applicant for refusing to pay a representative of the miners for his
participation in an inspection conducted on July 26, 1978. '!:_/
83 Stat. 742, 30 U.S.C. § 801 et seq •• herein the Act.
Both the citation and order charge-:i violation of section 103(£)
of the Act which provides:
"(f) Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners
shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any coal or
other mine made pursuant to the provisions of subsection (a), for the
1/

21

Tne application for review which initiated this proceeding was
timely filed and perfected on August 14, 1978. Applicant challenges
both the order and the citation which latter document indicates that
there were two MSHA inspectors present at the mine whose intent was
to form two parties to expedite the inspection and that Applicant
refused to allow a second representative of miners to accompany the
second MSHA inspector without suffering a loss in pay.
A hearing was held in Phoenix, Arizona, on November 13, 1978,
at which both parties w~re represented by counsel. ~/
II.

Findings of Fact

The essential happenings involved in this matter are not in
substantial dispute.
Magma Copper Company operates a large copper mine and mill in
the vicinity of San Manuel, Arizona. MSHA, successor to MESA,
inspects these operations periodically. The mill, which includes the
crushing facility, even though it is located near the mine site (Tr.
56), has a mine iden~ification number separate from that of the mine.
·The mill consists of\a mine crusher, a mill crusher, a concentrator,
a molybdenum plant, artd a filter plant. The mill I.D. number covers
several buildings, some of which are one-quarter mile long and three
stories tall.!:.,./
fn. 2 (continued)
purpose of aiding such inspection and to participate in pre- or
post-'.~spection conferences held at the mine.
Where there is no
autho · .. zed miner representative, the Secretary or his authorized
re pre·· ·t:in.tative shall consult with a reasonable nmnber of miners concern; .• g matters of health and safety in such mine. Such representativf· vf miners who is also an employee of the operator shall suffer
no l~ss of pay during the period of his participation in the inspection made under this subsection. To the extent that the Secretary or
authorized representative of the Secretary determines that more than
one representative from each party would further aid the inspection,
he can permit each party to have an equal number of such additional
representatives. However, only one such representative of miners who
is an employee of the operator shall be entitled to suffer no loss of
pay during the period of such participation under the provisions of
this subsection. Compliance with this subsection shall not be a
jurisdictional prerequisite to the enforcement of any provision of
this Act."
3/ The United Steelworkers of America, having failed to timely
respond to the prehearing order issued October 17, 1978, was dropped
as a party at the hearing (Tr. 3-9).
4/ Prior to March 9, 1978, the responsibility for regulating health
and safety standards in the metal and nonmetal mining industry
2

On July 26, 1978, ins pee tors Chester A. .Pascoe and Thomas
Aldrette, authorized representatives of the Secretary, arrived
together at the San Manuel Mill to continue an ongoing regular
"entire mine" inspection (Tr. 34-35, 55) of the mill which had begun
the previous week. The inspectors drove to the site in the same car
and coordinated their planned inspection on the way to the site.
They had been orally assigned to conduct this inspection by their
supervisor (Tr. 55). When they arrived at the mill,·a conversation
with company officials ensued in which the inspectors discussed the
fact that they were going to continue the inspection and indicated
that they 11 would like a miners' representative to accompany each
inspector •11 They were advise.d that Applicant ·would furnish two
miners' representatives, but that only one would suffer no loss of
of pay (Tr. 37). Miners' representatives did not accompany the
inspectors the previous week because the unions had not furnished
Applicant with a list of such representatives (Tr. 37-39, 52).

Inspectors Pascoe and Aldrette selected Ernest Badia to accompany them on their inspection (Tr. 51, Ct. Exh. 1). The inspectors
knew that a second representative would have been selected had they
requested one (Tr. ,47-48), but they were also aware that Applicant's
position was that so. long as one representative was being paid, no
other representative would be paid for the same period of participatfon (Tr. 95).
After the inspectors asked that they be provided two representatives of miners and that both representatives be paid for the time
spent assisting in the inspections (Tr. 37), Horace Carter, Assistant
Director of Safety and Industrial Hygiene, read them a portion of
sectio'n 103(f) of the Act, which stated: 11 However, only one such
representative of miners who is an employee of the Operator shall be
entitled to suffer no loss of pay during the period of such participation under the provisions of this subsection 11 (Tr. 95). Inspector
Pascoe then issued the citation and, subsequently, the order based on
the Applicant's refusal to pay the second representative of miners.
They provide as follows:
fn. 4 (continued)
belonged to the Mining Enforcement and Safety Administration (MESA).
Mine operators were issued mine identification numbers to identify the
function which was being regulated (Tr. 46, 91). In large operations·,
MESA assigned separate numbers to parts
the operation which had an
integrated function or operated in a functionally related manner (Tr.
47). I conclude that the mill and its related facilities covered by
the same l.D. number are a mine as defined in section 102(b)(3) of the

of

Act.

3

Citation #376720: 'A representative of miners was not
given the opportunity to accompany an authorized representative of the Secretary of Labor on a Safety and Health inspection. The Company allowed a repr'esentative of miners to
accompany one MSHA inspector on the inspection, but refused
to allow a representative of miners the opportunity to accompany second [sic] MSHA inspector on the same property (same
I.D. No.) without suffering loss of pay. The intent was to
form two (2) parties to expedite the inspection.'
Order #376821: 'Mr. Horace A. Carter, Assistant
Director of Safety and Hygiene, stated that the Company's
interpretation of the Act was that they would provide one
representative of miners for each inspection; therefore,
they would not provide a second representative of miners
on the same property (I.D. No.) without loss of pay.'
The citation was issued at 11:05 a.m. and it required that
abatement be completed by 12:30 p.m. The inspectors then went to
lunch. After they returned, Mr. Carter indicated that his position
had not changed._ Consequent! y, Inspector Pascoe issued the order
of withdrawal. \
Ernest Badia, the representative of the miners who was provided
with pay, accompanied Pascoe. However, a representative of the
miners with pay was not provided to Inspector Aldretti. Pascoe and
Aldretti examined separate parts of the mine (mill) as planned and
their inspections took them a distance of 7 miles apart. The inspections took approximately 2 hours. The inspectors saw each other
again when they subsequently returned to the safety engineer's office
to do their paper work. There was no connection between the activities of the two inspectors during the full period of their respective
inspecting (Tr. 37, 40-45, 47).
Inspector Pascoe did not request that a second representative be
asked whether he desired to walk around without pay in order to
justify the order of withdrawal because the second representative
would have to stand the loss of a day's wages (Tr. 61).
The regular inspection in quest.ion took approximately 6 days
(Tr. 62) off and on during the period July 19 - August 1, 1978 (Tr.
'• 5 7' 58).
III.

Discussion

The Applicant maintains that while th~ Act grants representatives
of miners the right to volunteer for walk-around activities, it limits
the number of representatives who shall be paid for such activities
to one. Applicant contends that it was not in violation of section
103(f) of the Act, since it did pay one of the two miners' representatives for participation in the inspection conducted on July 26, 1978.

4

MSHA contends that one representative should be paid for accor.
panying each inspector conducting an inspection, and, that there i1
no limitation on the number of inspectors (Tr. 99). MSHA's positic
in this connection is more fully set forth in Interpretative
Bulletin No. 1, issued April 1, 1978, 43 FR 17546 at 17549: 'ii
[T]here are also occasions when there is more than one
inspector at a mine, such as when the mine is so large that
it is necessary to send several inspectors in order to most
effectively or efficiently conduct inspection activity.
Inspectors may also arrive to conduct special "spot inspections" at a mine where a "regular inspection 11 of the mine
is already in progress. There are also situations when
several inspectors are dispatched to a mine at which there
are special safety and health problems needing concentrated
attention. Where more than one inspector is on the mine
property at the same time, the inspectors frequently go to
different areas of the mine, and for all practical purposes,
they could be inspecting different mines.
Under spch circumstances, if representatives of miners
are accompanying each inspector, one such representative
accompanying each inspector is protected against loss of
pay. If, regardless of the number of inspectors engaged in
inspection activity at a mine, one and only one representative of miners were protected against loss of pay, an
anomaly would result in that the decision to send several
inspectors, rather than a single inspector, to a mine would
adversely impact the protection against loss of pay, thereby
eroding the participation right itself. The manner in which
inspectors were assigned would thus determine the scope of a
statutory right.
Insofar as the precise issue in this case is concerned, section
I t consists of five
sentences which are examined separately below.

103( f) of the Act is not vague or ambiguous.

51 Tnis Interpretative Bulletin, which I find to be inconsistent
with the governing legislation, insofar as it seeks to construe and
implement the Act involved,is to be distinguished from legislativetype regulations duly promulgated in compliance with the rulemaking
provisions of the Administrative Procedure Act. Morton v. Ruiz,
415 U.S. 199, 39 L.Ed.2d 270, 94 S. Ct. 1055 (1974).
-5

1.

"Subject to regulations issued by the Secretary, a representative of th~ operator and a representative authorized
by his miners shall be given an opportunity to accompany
the Secretary or his authorized representative duringthe
physical inspection of any coal or other mine made pursuant
to the provisions of Subsection (a) for the purpose of aiding such inspection and to participate in the pre- or post1nspection conferences held at the mine.

This sentence is preliminary and of general application. It
requires that an authorized miner representative (singular) be given
the opportunity (a) to accompany the 11 Secretary or his authorized
representative"--not every given inspector--during the physical
inspection of a mine, and {b) to participate in any conferences held
before or after the inspection.
The phrases 11 the physical inspection" and "such inspection"
refer to one inspection. The purpose of allowing accompaniment by
operator and miner representatives is clearly specified as 11 aiding
the inspection, 11 not aiding the inspector. Furthermore, the inspection referred to must be one "made pursuant to the provisions of
subsection (a).'\ In my decision in another case of first impression,
Kentland-Elkhorn \Coal Corporation v. Secretary of Labor, Docket No.
PIKE 78-399, issued simultaneously herewith, I have-concluded that
the quoted clause was intended to be restrictive, and that during
the legislative history of the Act, Congress clearly expressed its
intent to limit accompaniment with no loss of pay to the regular
"entire mine 11 inspections described in the third sentence of section
103(a).

2.

"Where there is no authorized miner representative, the
Secretary or his authorized miner representative shall
consult with a reasonable number of miners concerning
matters of health and sa.fety in such mine.

This second sentence applies only where there is no authorized
miner representative (union) at .the mine. In such a special situation, consultation by the Sec~retary, acting through an inspector,
with a reasonable number of miners is required.
3.

6/

"Such representative of miners 6/ who is also an employee
of the operator shall suffer no loss of pay during the
period of his participation in the inspection 7/ made under
this subsecti.on.

singular.

71 Singular.
6

This third sentence requires that the miner representative,
whether appointed by a union, or otherwise selected where there is no
union, if he is an employee, 8/ shall be paid at his regular rate of
pay for-.:he period of time he-participates in the inspection. ~/
4.

"To the extent that the Secretary or authorized representative of the Secretary determines that more than one repsentati ve from each party would further aid the inspection,
he can permit each party to have an equal number of such
add.itional representati~."

This gives the Secretary, acting through an inspector, discretion
to allow each party more than one representative to accompany him on
the inspection (singular) provided the number is equal.
S.

"However, only one such representative of miners who is an
employee of the operator shall-be entitled to suffer no
loss in pay during the period of such participation under
the provisions of this subsection."

This expres~ly limits the pay provision to one miner representative/employee per\ inspection regardless of the number of inspectors
conducting the ins'pec tion, and regardless of the number of operator's
and miners' representatives accompanying them. The language is plain
and admits of no wore than one meaning. The word "However, 11 clearly
links this provision with the preceding sentence and both should be
read together. Thus, if the Secretary permits accompaniment by more
than one representative, only one is entitled to suffer no loss of
pay.
Congress could not have expressed the limitation of the 11 pay"
provi~ion of 103(f) more clearly.
This is not some inadvertent ambiguity which has found its way into the statute. It is a stronglyworded clear-cut restriction constituting an integral part of this
new statutory provision ·first introduced into the mine safety scheme
by the 1977 Act. While Congress sought to encourage miner participation in regular inspections, it also drew a distinct line as to how
many mine representative/employees would be paid for their time of
participation in the inspection. Its plain meaning is that it provides inspection participation rights without loss of pay to one
miner representative/employee per regular inspection--not per inspector. Contrary to MSHA' s contention, I do not find this reading· to
result in an absurdity, nor a~ I inclihed to follow MSHA's Interpretative Bulletin where it directly contradicts the Act. I have found
8/ By inference, a miners 1 representative can be selected who is not
an employee.
9/ Since the word 11 inspection 11 used here is not qualified by the word
liphysical" as in the first sentence, I conclude that it includes both
the physical inspection and the pre- and post-inspection conferences.

7

the legislative history to be of little value in deciding this issue.
In the parts thereof pointed to by the parties as support for their
positions, the Congressional source being quoted was not directly
addressing the question with which we are concerned. To draw infer-<
ences favorable to one party or the other from some word or phrase
idly dropped in the context of remarks directed to some other issue
or subject matter is not warranted. Tilis, indeedtis a case for
applying the canon of construction of the wag who said, when the
legislative history is doubtful, go to the statute. March v. ·United
States, 506 F.2d 1306, 1314 (D.C. Cir~, 1974).
It is clear from the record that on July 26, 1978, the two
inspectors were conducting but one regular inspection of the mine
(mill). Applicant, by agreeing to pay one miners' representative
for his participation therein was in compliance with section 103(f)
of the Act. I find merit in the application.
IV.

Conclusions of Law

Where a single regular 11 entire mine" ins pee tion is being conducted pursuai:it to section 103(a) of the Act by two or more inspectors, only one\representative of miners is entitled to participate in
the inspection 'without loss of pay even though the group conducting
the inspection is divided into two or more parties to simultaneously
inspect different areas of the mine.
ORDER

All proposed findings of fact and conclusions of law submitted by
the parties not expressly incorporated in this decision are rejected.
The citation and order which are the subject of this proceeding
are vacated.

:l!t~<l,J /f; ;4·dti//f~
Michael A. Lasher, Jr., Judge
Distribution:

N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills, 1905 Townhouse Tower, 100 West Clarendon, Phoenix AZ 85013 {Certified
Mail)
Michael V. Durkin, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Marco D. Vestich, Assistant Director, Safety and Health Department, United Steelworkers of America, 5 Gateway Center,
Pittsburgh, PA 15222. ( Certified Mail)
8

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

MAR 8
KENTLAND-ELKHORN COAL
CORPORATION,
Applicant

l979
Application for Review
Docket No. PIKE 78-399

v.
Feds Creek No. 1 Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
and

UNITED WORKERS OF AMERICA,
Respondents
DECISION
Appearances :

C. Lynch Christian III, Esq., Jackson, Kelly, Holt
and O'Farrell, Charleston, West Virginia, for
Applicant;
Leo J. McGinn, Esq., Office of the Solicitor,
Department of Labor, for Respondent.

Before:

Administrative Law Judge Lasher

I.

Stfttement of the Case

Applicant seeks review of Order No. 063798, dated June 23, 1978,
which was issued by MSHA inspector Vernon E. Hardin. The order was
issued pursuant to section 104(b) of the Federal Mine Safety and
Health Act of 1977 1/ citing Applicant with failing to abate a previously issued citation within the time required. The citation which
was issued by Inspector Hardin on June 20, 1978, cited Applicant for
refusing to pay employee Douglas Blackburn, the representative of the
miners, for his participation in an electrical inspection at Applicant1 s preparation plant on May 23 and May 24, 1978. 2/
1)

2/

30 U.S.C. § 801 _:!seq.

nie citation charged a violation of section 103(£) of the Act
which provides:
"(f) Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his miners

The Application for Review which initiated this proceeding was
timely filed on June 28, 1978. Applicant contends that both the
citation and order, each of which charge violations of section 103(£)
of the Act, are invalid and seeks to have them vacated. 3/
A hearing was held in Princeton, West Virginia, on December 7,
1978, at which both parties were represented by counsel. 4/
Inspector Hardin testified for MSHA and Roger Bartley, Applicant's
safety director, testified for the Applicant.
II

Discussion and Findings of Fact

Applicant contends that it was not in violation of section 103(f)
of the Act, since, on May 23 and 24, 1978, it .did pay one of two
miners' representatives present for participation in an inspection.
The facts are not in substantial dispute. According to Inspector
Hardin, two separate inspections were being conducted on the dates

fn. 2 (continued)
shall be given an opportunity to accompany the Secretary or his
authorized r~presentative during the physical inspection of any coal
or other mine· made pursuant to the provisions of subsection (a), for
the purpose of aiding such inspection and to participate in pre- or
post-inspection conferences held at the mine. Where there is no
authorized miner representative, the Secretary or his authorized
representative shall consult with a reasonable number of miners concerning matters of health and safety in such mine. Such representative of miners who is also an employee of the operator shall suffer
no loss of pay during the period of his participation in the inspection made under this subsection. ·To the extent that the Secretary or
authorjzed representative of the Secretary determines that more than
one representative from each party would further aid the inspection,
he can permit each party to have an equal number of such additional
representatives. However, only one such representative of miners who
is an employee of the operator shall be entitled to suffer no loss of
pay during the period of such participation under the provisions of
this subsection. Compliance with this subsection shall not be a
jurisdictional prerequisite to the ·enforcement of any provision of
this Act."
3/ In paragraph 7 of the application, Applicant alleges that on
May 23 and 24, 1978, two MSHA inspectors were present at the Feds
Creek No. 1 Mine and preparation plant; that each inspector was
accompanied on his inspection by a representative of the miners; and
that one of these representatives suffered no loss of pay as a result
of his partipation in the inspection.
4/ The United Mine Workers of America, upon motion of applicant, was
dropped as a party by my order entered on the record at the hearing
since the UMWA had not responded to my prehearing order and had made
no appearance at the hearing.
2

in question: the one he was conducting was a specialized electrical
inspection which was not part of a regular inspection of the mine
which was being conducted independently by a second MSHA inspector,
Aaron Hall. The record amply reveals that these inspectors did not
travel together, did not coordinate their inspections, and were functioning separately on the dates in question. According to Inspector
Hardin, his electrical inspection was one which is required to be
conducted once annually by the MSHA manual, whereas the inspection
conducted by Inspector Hall was one of at least four regular inspections required to be conducted annually by the Secretary of every
mine in its entirety by section 103(a) of the Act. The report of his
inspection filed by Inspector Hardin (Court Exh. 1) indicates that it
was a coal mine safety and health electrical CBA inspection (Tr. 42).
The electrical inspection was not part of the regular inspection of
the entire mine conducted by Inspector Hall. The evidence clearly
indicates·, and I conclude, that these were two separate inspections
(Tr. 16-18, 35-42, 48-53).
Inspector Hall was accompanied by Kenneth Smith, a slate picker,
who was paid for his participation in Inspector Hall 1 s regular "entire
mine 11 inspection, which would have taken approximately 1 month to
complete; Respondent admits t·ha t it refused to pay another employee,
Douglas Blackburn, for his participation in the 2-day electrical
inspection conducted by Inspector Hardin both at the time the citation was issued and again when the order of withdrawal was issued. 2./
Applicant's argument at the hearing that replacing Blackburn and
Smith with less experienced miners might have an adverse affect on
safety has been considered. However, it has no direct relevance in
determining the primary legal issue involved in this proceeding and
that is whether Applicant was required to pay Blackburn for the time
he expended in participating in the inspection conducted by Inspector
Hardin so that Blackburn would usuffer no loss of pay during the
period of such participation" as required by the Act. Since Inspector
Hardin's inspection was a separate inspection from Inspector Hall's,
it would ordinarily be concluded at this point that both the citation
and order were properly issued and that the relief sought by the
application should be denied. ~/

57 Applicant did pay Blackburn after the order of withdrawal was
Issued and the order was then terminated by Inspector Hardin at
8:50 a.m. on June 23, 1978.
6/ '!his is a case of first impression. I have held in another
matter, MSHA v. Magma Copper Company, Docket No. DENV 78-533-M, issued
simultaneously herewith, that the right of a miner representative/
employee to participate in an inspection without loss of pay granted
by section 103(£) of the Act is expressly limited to one representative per inspection--not per inspector.
3

Applicant, however, in its brief raised for the first time a
purely legal issue which I find dispositive of this case. Applicant
contends that the provisions of section 103(£) of the Act granting
miner representatives the right to participate in an inspection with
pay is limited to the regular 11 entire mine 11 inspections conducted
pursuant to section 103(a) of the Act. 7/ There is no question but.
that the first sentence of section 103(f) is a general section
against which the remaining sentences must be read and it does
expressly limit the types of inspections in which the operator's and
miners' representatives have a participation right to those 11 made
pursuant to the provisisons of subsection (a). 11 On the face of it,
this is a restriction--why else include the quoted language at all?
Moreover, Congress 1 intent to limit walk.around· rights under 103(f)
is further demonstrated by its elimination of such rights for "any
inspection" as previously provided in section 103(h) of the 1969 Act.
What is the extent of this limitation? Applicant places great
emphasis, and I believe properly so, on the remarks of Congressman
Perkins, Manager of the Connnittee of Conference for the House of
Representatives, in his report· to the House. They follow.
Mr. ·~peaker, before concluding my remarks I would

like to ad9ress one aspect of the conference report that
seems to be somewhat ambiguous.
Section 103(a) of the conference report provides
that authorized representatives of the Secretary or the
Secretary of Health, Education, and Welfare shall make
frequent inspections and investigations for the purpose
7/ More specifically, in its posthearing brief at page 15,
Applicant makes the following contention:
"B. Order No. 063798 was improperly issued because section
l03(f) of the Act provides miner representatives the right to participate in inspections at no loss of pay only where the inspection is
conducted pursuant to ·section 103(a) of the Act. Inspector Hardin's
electrical inspection was not conducted pursuant to section 103(a).
'lb.e plain language and legislative history of section 103(£) of
the Act establish that the right to participate in inspections at no
loss of pay exists only for a limited type of inspection. Specifically, section 103(f) limits walkaround rights with no loss of pay to
"physical inspection[ s] of any coal pr other tr.ine made pursuant to
the provisions of subsection (a) 11 of section 103 of the Act. Section
103(a) provides for at least four annual "inspections of each underground coal or other mine in its entirety . 11 These four annual
inspections of an entire mine are identified in the MSHA Citation and
Order Manual (A-1) by the code letters AAA, and are distinguished
therein from all other types of inspections."
4

of (1) obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes
of accidents and the causes of diseases and physical
impairments originating in such mines, (2) gathering
information with respect to mandatory health or safety
standards, (3) detennining whether an imminent danger
exists, and (4) determining whether there is compliance
with the mandatory health or safety standards or with any
citation, order, or decision issued under this title or
other requirements of this act. The Secretary shall
develop guidelines for additional inspections of mines
based on criteria including, but not limited to, the
hazards found in mines subject to this act, and his
experience under this act and other health and safety
laws.
In carrying out the requirements of clauses (3) and
(4) - concerning imminent dangers or compliance with
standards - the Secretary shall make inspections of-each
underground coal or other mine in its entirety at least
four times a year and of each surface coal or other mine
in its entirety at least two times a year.
\

In addition to the regular inspections of each mine
in its entirety as specified in section 103(a), section
103(g)(l) provides that whenever a representative of a
miner, or a miner at a mine where there is no such representative, has reasonable grounds to believe that a violation or irmninent danger exists, such representative 'or
miner shall have a right to obtain an immediate inspection.
Fµrther, section 103( i) provides for additional inspections
for any mine which liberates excessive quantities of
methane or other explosive gases, or where a methane or
gas ignition has resulted in death or serious inJury, or
there exists so;ne other especially hazardous condition.
Section 103(f) provides that a miner's representative
aut;horized by the operator's miners shall be given an
opportunity to accompany the inspector during the physical
inspection and pre- and post-inspection conferences pursuant to the provisions of subsection (a). Since the
conference report reference is limited to the inspections
conducted pursuant to section 103(a}, and not to those
pursuant to section 103(g)(l) or 103(i), the intention of
the conference committee is to assure that a representative
of the miners shall -be entitled to accompany the Federal
inspector, including pre- and post-conferences, at no loss
of pay only during the four regular inspections of each
5

underground mine and two regular inspections of each
surface mine in its entirety, including pre- and postinspection conferences.
The original section 103(a) of the Federal Coal Mine
Health and Safety Act of 1969 provided that-In carrying out the requirements of clauses (3) and
(4) of this subsection in each underground mine, such
representatives shall make inspections of the entire mine
at least four times a year.
Section 103(a) of the 1969 Act did not include the
new provisions-The Secretary shall develop guidelines for additional
inspections of mines based on criteria including, but not
limited to, the hazards found in mines subject to the act,
and his experience under this act and other health and
safety laws.
Section 103(h) of the 1969 act provided generally
that-At the commencement of any inspection * * * the
authorized representative of the miners at tne mine * * *
shall be given an opportunity to accompany the authorized
representative of the Secretary on such inspection
Since the conference report does not refer to any
inspection, as did section 103(h) of the 1969 act, but,
rather to an inspection of any mine pursuant to subsection
(a), it is the intent of the committee to require an
opportunity to accompany the inspector at no loss of pay
only for the regular inspections mandated by subsection (a),
and not for the additional inspections otherwise required
or permitted by the act. Beyond these requirements r'egarding no loss of pay, a representative authorized by the
miners shall be entitled to accompany inspectors during
any other inspection exclusive of the responsibility for
payment by the operator. 11 Vol. 123, No. 174, Cong. Rec. H
11,663 (daily ed. October 27, 1977); Legislative History,
Committee Print (July, 1978), 1!347, 1356-1358. [Emphasis
supplied.]
It could, of course, be argued that the Act is not ambiguous and
that Congressman Perkins 1 remarks should be ignored since reference
to the legislative history is not warranted. Pursuing this approach,
the points of argument would seem to be that:
6

1.

Section 103(a) 8/ does not say "four entire mine inspections

will be conducted annually."
2. It does say--expressly in its first sentence--that .the
Secretary shall make frequent inspections {entire mine or otherwise)
for various purposes and--expressly in the third sentence-that at
least four entire mine inspections annually will be made for the-purpose of determining if imminent danger or violations exist.
3. The 103(f) limitation to inspections made pursuant to "the
provisions (plural) of subsection (a)" cannot simply ignore the first
sentence of 103(a) and confine itself to the third sentence.
I am unable to adopt the above rationale for the reason that
Congress, by tacking on to its grant of accompaniment rights the
phrase 11 * * * during the physical inspection* * * made pursuant to
* * * subsection (a) 11 must have had something in mind other than
blanket coverage of all inspections. This phrase becomes a meaningless appendage if--via confinement to the general opening sentence

8/

Section 103(a) provides:
"Authorized\representatives of the Secretary or the Secretary of
Health, Education·, and Welfare shall make frequent inspections and
investigations in coal or other mines each year for the purpose of
(1) obtaining, utilizing, and disseminating information relating to
health and safety conditions, the ~auses of accidents, and the causes
of diseases and physical impairments originating in such mines,
(2) gathering information with respect to mandatory health or safety
standards, (3) determining whether an im.~inent danger exists, and
(4) determining whether there is compliance with .the mandatory health
or sa~ety standards or with any citation, order, or decision issued
uQder this title or othe requirements of this Act. In carrying out
the requirements of this subsection, no advance notice of an inspection shall be provided to any person, except that in carrying out the
requirements of clauses (1) and (2) of this subsection, the Secretary
of Health, Education, and Welfare may give advance notice of inspections. In carrying out the requirements of clauses (3) and (4) of
this subsection, the Secretary shall make inspections of each underground coal or other mine in its entirety at least four times a
year, and of each surface coal or other mine in its entirety at least
two times a year. The Secretary shall develop guidelines for
additional inspections of mines based on criteria including, but not
limited to, the hazards found in mines subject to this Act, and his
experience under this Act and other health and safety· laws. For the
purpose of making any inspection or investigation under this Act,
the Secretary, or the Secretary of Health, Education, and Welfare,
with respect to fulfilling his responsibilities under this Act, or
any authorized representative of the Secretary or the Secretary of
Health, Education, and Welfare, shall have a right of entry to, upon,
or through any coal or other mine . 11
1

of section 103(a)--it is construed to cover all inspections. The
only specific kind of inspection mentioned in 103(a) is the regular
inspection mandated in the third sentence thereof. As categories of
inspection go, the regular is the most important kind--of an entire
mine, conducted at least quarterly, for the purpose of finding violations and seeking out imminent dangers.
The widely-quoted admonition of Justice Murphy in Harrison v.
Northern Trust Co., 317 U.S. 476, 87 L.Ed. 407, 65 S. Ct. 361 (1943),
is particularly applicable here. After first noting that the court
below had refused to examine the legislative history of section 807
of the Revenue Act of 1932 on the ground that it was unambiguous,
Justice Murphy made this observation:
But words are inexact tools at best, and for that
reason there is wisely no rule of law forbidding resort
to explanatory legislative history no matter how clear
the words .may appear on superficial examination. * * *
So, accepting the Circuit Court's interpretation of
Illinois law as to the inciqence of the tax, we think it
should have considered the legislative history of § 807
to determin~ in just what sense Congress used the words
1
payable out'- of'.
Similarly, the purpose to be achieved here is to secure that
construction of the Act which gives effect to the Congressional purpose. For this reason, considerable weight must be given the statement of Congressman Perkins. At the outset of his remarks, he noted
that indeed there was an 11 ambiguity. 11 His statement--made on
behalf of the Committee, not just himself--reveals that the ambiguity
referr.ed to is precisely that with which we are dealing. In explaining the a~biguity, he pointed his remarks directly to the legal question under discussion, the meaning of the phrase "physical inspection
* * *made pursuant to the provisions of subsection (a) . 11 This is
not the situation which occurs so frequently when reference to the
legislative history is sought--where we are asked to draw inferences
from some indiscriminately dropped wo·rd or phrase uttered by a
speaker focused on an issue extraneous to the one under discussion.
It is a relevant, unequivocal statement by the Conference Committee
of Congressional intent made at the most significant 'stage of the
legislative process. It cannot be igL1ored. 9/
.

9/ See also Cass v. U.S., 417 U.S. 72, 40 L.Ed.2d 668, 94 S. Ct.
216 7 (1974), where theCourt again declined to 11 ignore the clearly
relevant 11 legislative history of a problem Act. I am aware that the
Respondent's Interpretative Bulletin, 43 F.R. 17546, April 25, 1978,
at page 17547, directly contradicts the Conference Committee's indication of the types of inspections covered. The Bulletin covers all
inspections mentioned in both the first and third sentences of
8

I conclude that the clearly expressed intent of Congress is to
require accompaniment with no loss of pay only for the so-called
regular entire mine inspections mandated by subsection 103(a).
Relying thereon, I also find that the section 103( f) phrase •1 physical
inspection* * * made pursuant to the provisions of subsection (a)
* * *11 11 refers to the inspections expressly referred to in the third
sentence of section 103(a) of the Act, that is, the regular inspections which the Secretary, in carrying out his responsibility to
determine either if an imminent danger exists or if there is compliance, must conduct of a mine in its entirety at least four times
a year.
In the instant case, a miner representative/employee was permitted accompaniment on the regular inspection of the entire mine conducted by Inspector Hall on May 23 and 24, 1978, without loss of pay.
I conclude that accompaniment by a miner representative/employee
without loss of pay on Inspector Hardin's electrical inspection on
the same 2 days was not required by section 103(£) of the Act. There
is merit in the application.
ORDER
All proposed findings of fact and conclusions of law submitted
by the parties not expressly incorporated in this decision are
rejected.
fn. 9 (continued
section 103(a), while the Committee intended that only the regular
ins pee t ions mandated by the third be covered. While an agency interpretation is usually entitled to great weight, in this instance the
Respondent appears to have leapt the chasm between what the law is
and what it ought to be. In my decision in MSHA v. Magma Copper
Company, supra, I noted that the Bulletin is-ro-be distinguished from
regulations promulgated in compliance with the Administrative
Procedure Act. In divining the Congressional intent underlying section 103(f) in the specific respect involved here, I believe the only
objective approach is to accept the clearly relevant interpretative
aid of the legislative history rather than the construction urged by
the enforcement agency. Congress has anticipated the question posed
in this proceeding and answered it.

9

The relief sought in. the application herein is GRANTED. Order
No. 063798 dated June 23, 1978, and Citation No. 063792 dated June 20,
1978, are VACATED.
i!k,,,..
~ //
,
///(~,//(. ~\f&'l~£/J._
Michael A. Lasher,· Jr., Judge

Distribution:

C. Lynch Christian III, Jackson, Kelly, Holt and O'Farrell, P. O.
Box 553, Charleston, WV 25322 (Certified Mail)
Leo J. McGinn, Esq., Office of the Solicitor, U. S. Department of
Labor
Joyce Hanula, United Mine Workers of America, 900 15th St., ·NW,
Washington, DC 20005 (Certified Mail)
\

10

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

MP.R 12 1979

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

Civil Penalty Proceeding
Docket No. NORT 78-417-P
A/O No. 44-00280-02025
Camp Branch No. 1 Mine

CLINCHFIELD COAL COMPANY,
Respondent
DECISION
Appearances:

Inga Watkins, Esq •• Trial Attorney. Office of the
Solicitor, Department of Labor, for Petitioner;
Gary W. Callahan, Esq., Attorney for Respondent.

Before:

Chief Administrative Law Judge Broderick

Statement of the Case
This proceeding was commenced on September 25, 1978, by a petf~
tion for the assessment of a civil penalty filed under section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a},
seeking a penalty for an alleged violation of the provisions of 30 CFR
77.207.
Following discussions between counsel pursuant to a prehearing
order, the case was called for hearing on the merits on January 25,
1979, in Abingdon, Virginia. Clarence A. Goode, a Federal mine
inspector, testified on behalf of Petitioner; George W. Strong,
superintendent of the subject mine, testified on behalf of Respondent. Both parties have filed posthearing briefs. All proposed
findings and conclusions contained in the briefs not adopted herein
are rejected.
Regulation
30 CFR 77 .207 provides: 11 lllumination sufficient to provide
safe working conditions shall be provided in and on all surface
structures, paths, walkways, stairways, switch panels, loading and
dumping sites and working areas."

Issues
1. Whether there was any illumination in the areas covered by
the citation involved herein in addition to the cap lamps of the
miners anci inspector.
2. Whether the illumination in the areas covered by the citation
was sufficient to provide safe working conditions.
3.

If a viola_tion has been established, what is the appropriate

penalty?
Findings of Fact
1. At all times relevant to this proceeding, Respondent,
Clinchfield Coal Company, was the operator of a coal mine in
Dickenson County, Virginia, known as the Camp Branch No. 1 Mine.
2. Respondent is a large operator and any penalty assessed
herein will not affect its ability to continue in business.
3. On September 19, 1977, Federal Mine Inspector Goode made an
inspection of the subject mine, including both underground and surface
areas.

4. Inspector Goode's inspection of the surface areas was conducted between 9:30 and 11 p.m. on September 19. The night was
cloudy.
5. Inspector Goode had previously inspected the mine on
September 16, 1977, during daylight hours and did not observe light
structures in the area of the head house and stacker belt. He
returned on September 19 at night to determine the illumination in
the area.
6. On September 19, 1977, at approximately 11 p.m., Inspector
Goode issued Notice of Violation No. 4 CAG, charging a violation of
30 CFR 77.207.
7. At the time the citation referred to in Finding No. 6 was
issued, there were no functioning outside lights at or near the head
house qr the conveyors leading from the head house to the stacker
transfer point.
Discussion
There is sharp and total disagreement between Mr. Goode and
Mr. Strong as to the existence of functioning lights at the time and
place referred to in the notice. I am accepting the testimony of
Mr. Goode, because he was present at the time in question, and
2

Mr. Strong was not. Mr. Sam Murphy, mine foreman, who accompanied
Mr. Goode on his inspection, was not called as a witness by Respondent.
Mr. Goode 1 s'testimony is cooroborated by the notes which he made at
the time of his inspection. Mr. Goode is an experienced mine inspector. There is no adequate reason shown in this record to conclude
that he was totally mistaken or was fabricating as to the condition
he stated that he observed.
8. Because of the absence of functioning lights in the areas
described in Finding No. 7, illumination sufficient to provide safe
working conditions was not provided in those areas.
Discussion
The only illumination in the areas in question was that provided
by the cap lamps of the miners and the inspector. The area in question had supplies, railroad tracks, rocks and coal spillage which
constituted stumbling hazards. There were moving conveyors and
moving parts at the transfer point and the stacker belt which could
be hazardous to those working in and around them, if insufficiently
illuminated. The cap lamps did not provide sufficient illumination
to obviate these~azards since the cap lamp provides only a directed
beam of light and \does not provide diffuse illumination to allow a
person to see to the periphery of his vision. I reject the testimony
of Mr. Strong that "the cap light provides adequate illumination for
a man working along one of these conveyors" (Tr. 81).
9. At the time the notice of violation
.
, was issued, there was
one miner working in the area in question. However, the area was
traveled by other miners to pick up supplies and to do maintenance
and cleanup work along the belt.
10.
serious.

The condition described in Finding No. 8 was moderately

11. Respondent's history of previous violations does not include
any violations of 30 CFR 77.207. Any penalty assessed herein will
not be increased because of a history of previous violations.
12. The parties stipulated that Respondent demonstrated good
faith in attempting to effect rapid compliance after the notice was
issued.
13. The absence of illumination 'in the areas in question was
discussed with Respondent's officials prior to the date the notice
was issued. Respondent knew or should have known of the existence
of the condition described in Finding No. 8. Respondent was
negligent.
3

Conclusions of Law
1. Respondent was subject to the provisions of the Coal Mine
Health and Safety Act of 1969, 30 U.S.C. § 801 et seq., as of
September 19, 1977.
2. The undersigned Administrative Law Judge has jurisdiction
over the parties and the subject matter of this proceeding.
3. The condition described in Finding No. 8 constituted a violation of the mandatory safety standard contained in 30 CFR 77.207.

4. A violation of the safety standard in 30 CFR 77.207 can be
established without reference to specific illumination measurements
such as footcandles of light.
Penaltv
Considering the criteria in section 109(a) of the 1969 Act, I
conclude that a penalty of $150 is appropriate for the violation.
Therefore,\ it is ORDERED that Respondent shall pay a civil
penalty in the ~'mount of $150 for the violation on September 19, 1977,
of 30 CFR 77.207. The penalty shall be paid within 30 days of the
date of this decision.

)

Ch~-C-S A Li~&+i:~d
James A. Broderick
Chief Administrative Law Judge

Distribution:
Inga A. Watkins, Esq., Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington,
VA 22203
Gary w. Callahan, Esq., Attorney for Clinchfield Coal Company,
Lebanon, VA 24266 (Certified Mail)

4

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

March 14, 1979
Civil Penalty Proceedings

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

Docket No. PITT 79-12-P
A/O No. 36-00917-03001

HELVETIA COAL COMPANY,
Respondent

Lucerne No. 6 Mine

KEYSTONE COAL MINING CORP.,
Respondent

Docket No. PITT 79-5-P
A/O No. 36-05038-03001
Margaret No. 11 Mine
DECISION

The above-captioned cases are petitions for the assessment of
civil penalties. Each petition is for the assessment of an alleged
violation of 30 CFR 50.20.
The parties have filed Joint Stipulations of Fact. From the
stipulations it appears that in PITT 79-5-P an assistant mine foreman
slipped and fell and fractured his arm while chipping ice on a slope
outside the mine and that in PITT 79-12-P an assistant mine foreman
while building a brattice wall, picked up a concrete block, slipped
and injured his back.
The alleged violations are due to the operator's failure to fill
in lines 5 thru 12 of Form 7000-1 with respect to the foregoing
occurrences. Lines 5 thru 12 of the form deal with information regarding accidents. The operator contends that since these occurrences
were not acci.dents under the regulations it did not have to complete
these lines. The Solicitor argues that the receipt of such information
is necessary for MSHA to properly discharge its responsibilities.

Part 50 of the regulations sets forth inter alia the reporting
requirements for accidents, occupational injuries and occupational
illnesses. Section 50.2 sets forth a list of definitions for terms
"as used in this Part" including inter alia:

*

*

*

(e) "Occupational injury" means any injury to a
miner which occurs at a mine for which medical treatment
is administered, or which results in death or loss of
consciousness, inability to perform all job duties on
any day after an injury, temporary assignment to other
duties, or transfer to another job.

*

*

*

(h) "Accident" means,
(1) A death of an individual at a mine;
(~)

An injury .to an individual at a mine which

has a r~asonable potential to cause death;
(3) An entrapment of an individual for more
than thirty minutes;
(4) An unplanned inundation of a mine by a
liquid or gas;
(5) An unplanned ignition or explosion of
gas or dust;
(6) An unplanned mine fire not extinguished
within 30 minutes of discovery;
(7) An unplanned ignition or explosion of a
blasting agent or an explosive;
(8) An unplanned roof fall at or above the
anchorage zone in active workings where roof bolts
are in use; or an unplanned roof or rib fall in
active workings that impairs.ventilation or impedes
passage;
(9) A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining
activity for more than one hour;

2

(10) An unstable condition at an impoundment,
refuse pile, or culm bank which requires emergency
action in order to prevent failure, or which causes
individuals to evacuate an area; or, failure of an
impoundment, refuse pile, or culm bank;
(11) Damage to hoisting equipment in a shaft
or slope which endangers an individual or which
interferes with use of the equipment for more than
thirty minutes;
(12) An event at a mine which causes death or
bodily injury to an individual not at the mine at
the time the event occurs.

*

*

*

In his brief the Solicitor admits that what happened in these
cases did not constitute an "accident" within the meaning of the
quoted definition. Moreover, on Form 7000-1 questions 5 thru 11
are under a heading entitled "Accident information."
It is clear that the term "accident" is a word of art which has
a specific meaning and which by the express terms of section 50.2
applies to all of Part 50. Accordingly, the Solicitor's admission
that these cases do not involve "accidents" as defined in section
50.2(h) is dispositive. Since no "accidents 11 were involved, the
reporting requirements in section 50.20 for "accidents 11 do not apply.
I have carefully considered the Solicitor's argument that the
definition of "accident" is not for the purpose of completing the
forms but for the purpose of identifying what occurrences must be
promptly reported to MSHA for possible investigation. I cannot
accept this interpretation because it is contrary to the. terms of the
regulations which as already noted, expressly make the definitions
applicable to Part 50 in its entirety. I also have reviewed the
Solicitor's representation that it is necessary for MSHA to receive
the information in question. If this is so, it would be a simple
matter to amend the regulations so that MSHA can obtain this data.
In light of the foregoing, I conclude that no violations
existed and that therefore no penal~ies can be assessed in these
cases.

3

ORDER
It is hereby ORDERED-that the petitions for assessment of
civil penalties filed herein be DISMISSED.

Paul Merlin
Assistant Chief Administrative Law Judge
Issued:

March 14, 1979

Distribution:
Joseph M. Walsh, Esq., Office of the Solicitor, MSHA,
U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Harry H. Glasspiegel, Esq., Freedman, Levy, Kroll & Simonds,
1730 K Street, N.~., Washington, DC 20006 (Certified Mail)
\

4

. FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLll\IGTON, VIRGINIA 22203

March is. 1979

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

Civil Penalty Proceeding
Docket No. DENV 77-79-P
A/O No. 05-02820-02004
Maxwell Mine

C F & I STEEL CORPORATION,
Respondent
DECISION
Appearances:

Leo J. McGinn, Esq., Office of the Solicitor,
Department of Labor, for Petitioner;
Ric~~rd L. Fanyo, Esq., Welborn, Dufford, Cook
& Brown, Denver, Colorado, for Respondent.

Before:

Judge Moore

On August 17, 1977, the Mine Safety and Health Administration
filed a petition for assessment of a civil penalty in accordance with
section 109(a)(l) of the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. § 818(a). The above-stated petition was based on
Notice of Violation No. 1 DLJ issued in April 21, 1977, alleging a
violation of 30 CFR 75.316.
·
'·
The 104(b) Notice No. 1 DLJ states: "The ventilation, methane
and dust control plan was not being complied with. No. 1 unit turn
out, left, where coal was being cut, mined and loaded, the end of
the vent tube was 30 feet from the working face.
30 CFR 75.316 states:
A ventilation system and methane and dust control
plan and revisions thereof suitable to the conditions
and the mining system of the coal mine and approved by the
Secretary shall be. adopted by the operator and set out in
printed form on or before June 28, 1970. The plan shall
show the type and location of mechanical ventilation
t''· ,..

equipment installed and operated in the mine, such
additional or improved equipment as the Secretary may
require, the quantity and velocity of air reaching each
working face, and such other information as the Secretary
may require. Such plan shall be reviewed by the operator
and the Secretary at least every 6 months.
!he respondent filed an answer to the petition on September 19,
1977, denying the alleged violation. A hearing on the merits was held
in Pueblo, Colorado, on September 12, 1978. The Government introduced
one witness, Donald Jordan, a Federal coal mine inspector and four
exhibits. The respondent introduced two witnesses, Paul Montoya, an
assistant mine foreman for C F & I Steel Corporation at the Maxwell
Mine, and James Robert Morris, a mine superintendent for CF & I Steel
Corporation. Respondent also introduced two exhibits, C F & I Exhibit
Nos. 1 and 3 which are sketches of the relevant area of the Maxwell
Mine cited in Notice No. 1 DLJ.
Petitioner and respondent presented two quite distinct depictions
of the shape of the cut and the location of the blower tubing in the
relevant area of the Maxwell Mine. The petitioner contends that the
relevant cut was, 30 feet in length' 18 feet wide) and that the mouth
of the blower tubing was situated at the start of the cut approximately 30 feet from the face. Petitioner argues that respondent
thus violated the ventilation plan which requires the blower tubing
to be within 10 feet of the face (Tr. 7, 9).
The respondent, on the other hand, contends that the relevant cut
was made at an angle and that while the lefthand side of the cut may
have been 30 feet in length, the depth of the cut was only 10 feet.
Respondent argues that the ventilation control plan (Govt. Exh. 2)
only requires that 3,000 cfm of air be delivered within 10 feet of
the point of deepest penetration rather than requiring the mouth of
the blower tubing to be situated within 10 feet of the working face.
The relevant section of page 2 of the ventilation plan reads:
Ventilation and Dust Control
A minimum of 3,000 cfm of air will be delivered tc·
within 10 ~eet of each face where coal is being cut, mined,
or loaded. The device used will be flame-resistant 1 ine
brattice or 18 or 24 inch flame-proof tubing and auxiliary
ventilation fans. Where exhaust ventilation of the face is
used the minimum mean entry velocity for dust and methane
control will be determined after operation begins.
Respondent's Exhibit Nos. 1 and 3 are diagrams depicting the
area of the alleged violation as respondent contends it to be.
Government Exhibit No. 3 is a diagram of the cut and ventilation
2

tubing as the Government contends it existed. Ndne of the three
diagrams are drawn-to-scale and that creates a problem. Because where
angles are involved, nonscale drawings can be extremely deceptive.
Two inspectors measured the lefthand edge of the ~ut by tying a weight
to their measuring tape and throwing it into the cut. The respondent's foreman, Mr. Montoya, did not deny that th~ left-hand edge of
the cut was in fact 30 feet long, and I will accept the measurement
as a fact. If I also accept Mr. Montoya's estimate that the deepest
penetration of the lefthand side of the cut was only 10 feet from the
crosscut containing the ventilation tubing*/ then a.scale drawing
would show an entirely different picture than that shown in Respondent's Exhibit Nos. 1 and 3. A scale drawing would approximate a
right triangle with an altitude of 10 feet, a hypotenuse of 30 feet,
and a base slightly in excess of 28 feet. The angle where the new
cut first began would only be between 19 and 20 degrees. The new
entry being started, would have a width in excess of 28 feet, whereas
most entries and crosscuts in this mine were between 18 and 20 feet.
I might accept the fact that the inspectors in measuring the
lefthand cut, which they thought to be perpendicular to the crosscut,
were in error as to the angle by 10 or 20 degrees, but an error of
70 degrees is completely unreasonable. I reject Mr. Montoya's drawings and accept Government Exhibit No. 3, even though it is also not
drawn-to-scale. I would 1 ike to point out, however, even if I
accepted respondent's version as correct, there would still be a violation of the ventilation plan because that plan requires that line
curtains or tubing "shall be maintained to within 10 feet from the
area of deepest penetration to which any portion of the face has been
advanced." (See page 8 of Govt. Exh. 2). Obviously, in referring
to "tubing" the plan means the intake end of the tubing because it
would do no good to have a central section of the tubing run past or
within 10 feet of a face. And, according to Mr. Montoya's description of the scene, the intake end of the tubing was in the face of
the .crosscut and 30 feet from the deepest penetration of the entry
that was to be driven. ·
I find that a violation occurred, that respondent was negligent,
that a moderate degree of gravity was involved and that there was good
faith abatement. The history of prior violations is substantial.
While evidence as to the actual size of the company or the mine was
not produced, the ventilation plan does show that 160 miners were
employed in respondent's Maxwell Mine, It is not a small mine and
in the absence of evidence to the contrary, I will assume that any
penalty assessed ·will not affect its ability to continue in business.
I find a civil penalty of $800 to be appropriate.

*f The terminology may be somewhat confusing because the crosscut
had been driven first and the ventilation tube placed therein and the
cut that was being made in the area of the violation was supposed to
be the beginning of an entry.
3

ORDER
It is hereby ORDERED that respondent pay to MSHA a civil penalty
in the amount of $800 within 30 days of the entry of this decision.

~t??l1~1,.

Charles C. Moore, Jr.
Administrative Law Judge
Issued: March 15, 1979
Distribution:

Leo J. McGinn, Esq., MSHA, Office of the Solicit.or, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Richard L. Fanyo, Esq., Welborn, Dufford, Cook& Brown,

1100 United Bank C.enter, Denver, CO 80290 (Certified Mail)
Administrat.or for Coal Mine Safety and Heal th
\

Standard Distribution

4

FEDERAL r.filNE SAFETY AND HEALTN RfVIE\V CCl\'HVUSSION
OfflCE OF ADMiNISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON.VIRGINIA 22203

CLIMAX MOLYBDENUM COMPANY,
Applicant

Applications for Review
Docket No. DENV 79-159-M
Citation No. 333329

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

Climax Mine

DECISION
On February 12, 1979~ the Mine Safety and Health Administration
(MSHA), by and through its attorney, moved to dismiss the above-captioned.
~n February 26, 1979, Applicant filed a statement in opposition to the
motion.
!he motion a'l,\ers that the citation was fully abated and the citation
had been terminated on December 27, 1978. Applicant's statement does not
deny this factual allegation, and asserts that there is no relevant
distinction between abated and unabated citations.
As Respondent's factual assertion has not been rebutted, it will be
taken as established. I have previously ruled that .an abated citation
can not be reviewed through an Application for Review, ~· Sully Miller
Construction Co., DENV 78-454-M et. al. (November 2, 1978).1/ Stare Decisis
dictates the disposition which must bemade of this case.
WHEREFORE the above-captioned is DISMISSED.

/f

·f
A
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V ~ ,t..l:.t.14··7
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'
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/ - ' f(.ux'·· rj/.
,; I ~v.:..,,_.,, ,:....,~. . ~ •.
.-·/,'

<'

'

'

,..

,._./

'

, , ......

• .,.,

/~

Malcolm P. Littlefield
Administrative Law Judge

1./

a copy is appended hereto.

Distribution:
William Schoeberlein, Esq., and Charles W. Newsom; Esq., Dawson,
Nagel, Sherman & Howard, 2900 First of Denver Plaza, 633 Seventeeth
Street, Denver, CO. 80202 (Certified Mail)
Mr. Edward L. Farley, President, Oil Chemical and Atomic Workers
International Enion, Local No. 2-24410, P.O. Box 949, Leadville,
CO. 80461 (Certified Mail)
Mr. Edward Matheson, Chairman, International Brotherhood of Electrical
Workers, Local Union No. 1823, P.O. Box 102, Minturn, CO. 81645
(Certified Mail)
Joseph M. Walsh, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Boulevard, Arlington, Va. 22203

FEDEl1AL l\.11NE SAFETY /\NO MEfi l TH R EVIEVt! COMMISSiON
OFFICE Of AOMINl5THATIVt: l.\W JUDGES
4015 W'LSON 130UlEVARD

ARLINGTON, Vlf{G IUIA 22203

November 2, 1978

Applications for Review

SULLY MILLER CONSTRUCTION CO.,

Applicant

v.

.
..

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

Docket F.os. DENV 78-454-M
78-455-H
78-456-M
78-457-M

'ADMINISTRATION (MSllA) f
Re~pondent

Upland Plant No. 69

DECISION
The above-captioned Applications for Review were filed pursuant
to section 105 of·the Fed~ral Mine Safety and Health Act of 1977,
P.L. 95-164, 30 U.S.C. § 801 et seq. (hereinafter referred to as the
1977 Act).
.
- --Subsection lOS(a) provides in relevant part:
If, after an inspection or investigation, the Secretary issues a citation or order under section 104, he
shall, within a reasonable time after the termination of
such inspection or investigation) notify the operator by
certified mail of the civil penalty proposed to be asse~sed
~nder section llO(a) for the violation cited and that the
operator has 30 days within which to notify the Secretary
.that he wishes to contest the citation or proposed assessment of penalty. * * * If, within 30 days from the receipt
of the notification is.sued by the Secretary, the operator
fails to notify the Secretary that he intends to contest
the citation or the proposed assessment of penalty, and no
notice is filed by any miner or representative of min.ers
under subt!cction (d) of this section within such time, the
citation and the proposed assessment of penalty shall be
deemed a final order of the Commission * * *·
Subsection lv5(d) provides in relevant part:
If, within 30 days of receipt thereof, an operator of
a coal or other mine notifies the Secretary that he int"ends
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, *-* * the Secretary shall
immediately advise the Commission of such notification, and·
the Commission shall afford an opportunity for a hearing

* * *·
On the surface, the above-cited statutory provisions would
appear to support the full review of citations in a section 105
Application for Review. A similarly br0ad construction of the
predecessor statute, the Federal Coal Hine Health and Safety Act
of 1969, P.L. 91-173, 30 U.S.C, § 815, provided by a Board of Mine
Operations Appeals' opinion, Freeman Coal Hining Corp., l IBMA 1
(1970), was overruled by UXWA v. Cecil D. Andrus, Seci~tary of the
Interior,
F.2d
,--U:S. Court of Appeals, D.C. Circuit,
No. 76-1208, May 9, 197$.
·

The legislative history of section 105 in the. 1977 Act supports
the conclusion that the present review provision is a cognate of the
1969 Act review provision. (See Conference Report on s. 717,
95th Cong., 1st \'{)ess.) As UHWA, supra, is controlling as to the
scope of available review under the 1969 Act and places a limitation
thereon, it follows that the 1977 Act is similarly limited.
A full review of the facts incident to an alleged violation is
available upon the filing of a civil-penalty petition under section
lOS(d). The mandatory language of the penalty provision, section
llO(a), 1/ means that such a petition must be filed unless the cita·tfon is invalidated by HSU.A. Therefore, ultimately, the opc-...:ator
\..i.1.l pe heard fully.
The expense of duplicate full revii;;w of cita;ons would be in derrogation of the prime purpose of the.'-)ct.; ·
riamely, protection of the miner. Jj
I hold that the operator's interest in a section 105 review is
limited to the reasonableness of the length of abatement time fixed
in a citation or modification ther.eof issued under section lOl+.

·.

1./

Section llO(a). 11 The operator of a coal or other mine in whici1
a violation occ·urs of a mandatory health or safety standard or who
·violates any other provision of this Act, shall be assessed a civil
.penalty by the Secretary which penalty shall not be more th.an· $10,000
for each such violation. Each occurrence of a violati,on of a mandatory health or safety standard may constitute a separate offcnse. 11
2/ Section 2. Congress declares that -11
(a) the first priority and concern of all iri the coal or other
mining industry must be the health and safety of its most precious
resource--thc miner; * * *·"
2

It is hereby ORDERED that: the Secretary's motion is GRANTED
and the Applieations for Review are DISMISSED.

Distribution:
Rutan & Tucker 1 Attorneys at Law. Wells Fargo Bank Building 1
401 Civic Center Drive West, Post Office box 1976, Santa Ana,
California 1 92702 (Attn: Michael D. Rubin, Esq.) (Certified
Mail)
Robert A. Cohen, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA
222.03
Robert Rojestki, 9J0-2lst. Avenue West, Virginia, Minnesota
55792 (Certified Mail)
}ta.rsh.a.11 P. Salzman, Esq., Office of the Solicitor, U.S.
Department of Labor, 3247 Federal Building, 300 North
Los Angeles Street, Los Angeles, California 90013

3

rEOERAL MINE SAFETY AND HEALTH REVIEV.f COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

March 16, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH:
ADMINISTRATIO~ (MSHA),
ON BEHALF OF DONALD BROOKS,
·complainant

v.

Application for Review of
Discrimination
Docket No. HOPE 79-76
No. 1 Mine

SEWELL COAL COMPANY,
Respondent
ORDER FINDING DEFAULT AND
GRANTING RELIEF
On October 26, 1978, the Secretary filed a complaint on behalf of
Donald Brooks, inwhich it is alleged that Respondent refused to pay
Mr. Brooks for the time he accompanied a Federal inspector during an
inspection of the subject mine. The complaint asked that the Commission
find that Mr. Brooks had been discriminated against by Respondent for
engaging in actions protected under section 105(c) of the Federal Mine
Safety and Health ACt of 1977; that the Commission order Reespondent to
pay full back pay and employment benefits for the 6-hour period involved
and that Mr. Brooks' employment record be cleared of any unfavorable
references resulting from said .discrimination.
On February 13, 1979, Complainant filed a "Motion to Dismiss"
because Respondent had not replied to the complaint. On February 27,
1979, I issued an order to show cause why Respondent should not be held
in default and the relief requested in the complaint granted.
Respondent did not answer the order to show cause within the requisite time specified. On March 12, 1979, Respondent filed a response to
the order which states that "counsel for Sewell Coal Company has no
record of the £iling of the complaint but has contacted the Commission
Docket office and will file an answer as soon as one is received· at this
office." This response does not adequately show cause for Respondent's
failure to answer. Respondent therefore is in DEFAULT.
Therefore, IT IS ORDERED that the Complainant's motion is GRANTED
and Respondent is found by reason of its default to have discriminated
against Mr. Brooks.

IT IS FURTHER ORDERED that Respondent pay Mr. Brooks full back pay and
employment benefits for the 6-hour period involved on May 9, 1978.
Respondent IS FURTHER ORDERED to remove any unfavorable references
resulting from the said discrimination from Mr. Brooks' employment record.

// /"

I

,/

-~/CJ-·f/}V!.. 5 ,,,,<f//J VlJ {]£-1/7(!V\...__
"'/

James A. Broderick
Chief Administrative Law Judge

Distribution:
By certified mail.
Mr. Donald Brooks, Craigsville, WV

26205

Mr. Ralph Dado, Vice President for Operations, Sewell Coal Company,
Nettie, WV 26681
R. M. Neville, Esq., Secretary and Corporate Counsel, Pittston Company,
1 Pickwick Plaza, Gr~enwich, CT 06830
Thomas P. Piliero, Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203
Gary W. Callahan, Attorney for Sewell Coal Company, Lebanon, VA

24266

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22~03

MAR 2 l 1979

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MS~A),
Petitioner

Civil Penalty Proceeding
Docket No. BARB 78-595-P
(A/O No. 15-02502-02022)

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

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

Before:

Judge Littlefield

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

under paragraph (3) of this subsection which penalty shall
not be more than $10,000 for each such violation. Each
occurrence of a violation of a mandatory health or safety
standard may constitute a separate offense. In determining
the amount of the penalty, the Secretary shall consider the
operator's history of previous violations, the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business,
the gravity of the violation, and the demonstrated good
faith of the operator 'charged in attempting to achieve
rapid compliance after notification of a violation.
Petition
On July 31, 1978, the Mine Safety and Health Administration
(MSHA), 1/ through its attorney, filed a petition for assessment of
civil penalties charging 16. alleged violations of the Act.
Answer
On August 2?, 1978, Respondent filed a detailed response to the
allegations and requested a hearing thereon.
Tribunal
A hearing was held in Knoxville, Tennessee, on February 14, 1979.
Both MSHA an8' Shamrock Coal Company were repr~sented by counsel (Tr.

4).
Evidence
The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues
on the part of counsel for both parties.
The Judge, after hearing all evidence, studying the record,
reviewing the exhibits, giving sympathetic regard to mitigating circumstances, and fully considering the criteria shown in section
109(a)(l) of the Act, made findings of fact, conclusions of law
-and issued an ORDER on the record, rendering his decision from the
bench. Sixteen violations were found as originally charged.

l/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA).
2

Findings of Fact and Conclusions of Law
The findings of fact, conclusions of law, and ORDER made on the
record from the bench are hereby incorporated herein by reference and
are AFFIRMED (Tr. 21-26).
Civil Penalties Assessed
Notice No.

Date

7-0115
7-0119
7-0121
7-0122
7-0133
7-8001
7-8002
7-8003
7-8004
7-8005
7-8006
7-8007
7-8008
7-8009
7-8010
7-8011

08/24/77
08/24/77
08/24/77
08/24/77
11/01/77
12/07/77
12/07 /77
12/07 /77
12/07/77
11/21/77
11/21/77
11/21/77
11/21/77
12/27 /77
12/27/77
12/27/77

Section 30 CFR

Penalty

75.316
75.1101-1
75.515
75.1202
75.316
75 .1103
75 .1107
75 .1107
75.1710
75.1710
75.1710
75.1710
75.1107-1
75 .400
75.316
75.1722(a)

$ 55
45
45
50
55
45
50
50
55
55
55
55

Total

50
45
45
45
$800

Disposition
The Judge was notified by letter from the Office of the Solicitor,
U.S. Department of Labor, that the Respondent had submitted payment
of $800, as ordered for the 16 violations found by the Judge in his
BENCH decision. WHEREFORE the above-captioned is CLOSED.

71?~7~
Malcolm P. Littlefield f'
Administrative Law Judge

Distribution:
John H. O'Donnell, Trial Attorney., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919
(Certified Mail)
Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962
(Certified Mail)
3

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

.

MAR 2 1 1979

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

Civil Penalty Proceeding
Docket No. BARB 78-495-P
(A/O No. 02502-02021)

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

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

Before:

Judge Littlefield

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

undet.patagraph (3) of this subsection which penalty shall
not be more than $10,000 for ·each such violation. Each
occurrence of a violation of a mandatory health or safety
standard may constitute a separate offense. In determining
the amount. of the pe·nalty, the Secretary shall consider the.
operator's history oi previous violations, the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business,
the gravity of the violation, and the demonstrated good
faith of the operator charged in attempting to achieve
rapid compliance after notification of a violation.
Petition
On June·23, 1978, the Mine Safety and Health Administration
(MSHA), 1/ through its attorney, filed a petition for assessment of
civil pell"alties charging five alleged violations of the Act.
Answer
On July 2J\ 1978, Respondent filed a detailed response to the
allegations and requested a hearing thereon.
Tribunal
A hearing was held in Knoxville, Tennessee, on February 14, 1979.
Both MSHA and Shamrock Coal Company were represented by counsel (Tr.

4-5).
Evidence
The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues
on the part of counsel for both parties.
The Judge, after hearing all evidence, studying the record,
reviewing the exhibits, giving sympathetic regard to mitigating circum·
stances, and fully considering the criteria shown in section 109(a)( 1)
of the -Act, made findings of fact, conclusions of law and issued an
ORDER on the record, rendering his decision from the bench. Five violations were found .as originally charged.
l/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA).
2

Findings of Fact and Conclusions of Law
The findings of fact, conclusions of law, and ORDER made on the
record froci the bench are hereby incorporated herein by reference and
are AFFIRMED (tr. 21-24).
Civil Penalties Assessed
Notice No.

Date

6-0029
6-0083
6-0085
7-0029
7-0134

04/27 /76
08/03/76
08/03/76
02/15/77
08/24/77

Section 30 CFR

Penalty

75.1710
77 .216(c)
77.215(h)
75 .1713-5
75.316

$ 50

Total

55
45
50
50
$250

Disposition
The Judge was notified by letter from the Office of the Solicitor,
U.S. Department of Labor, that the Respondent had submitted payment
of $250, as -0rdered for the five violations found by the Judge in his··
BENCH decision. WHEREFORE the above-captioned is CLOSED.

p

--wi 4 I
-~ -1 /f•/J (}
11/ (£-fl:!(!~ 1• µ:zl~-(.Jl~

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

3

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

MAR 2 1 1979

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

Civil Penalty Proceeding
Docket No. BARB 78-138-P
(A/O No. 15-02502-02013)

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

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

Before:

Judge Littlefield

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

Section 109(a)(l) provides as follows:
The operator of a coal mine in which a violation occurs
of a mandatory health or safety standard or who.violates any
other provision of this Act, except the provisions of
title 4, shall be assessed a civil penalty by the Secretaty

under p.aragraph (3) of this .subsection which pe11alty shall
not be more than $10,000 for each such violation. Each
occurrence .of a violation of a mandatory health or safety
standard may_,constitute a separat.e offianse. In determining
the amount of the penalty, the Secretary shall consider. the
operator's history of previous violations, the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the
effect Dn the operator's ability to continue in business,
the gravity.of the violation, and the demonstrated good
faith of th~-operator charged in attempting to achieve
rapid compliance after·notification of a violation.
Petition
On ~anuary 17, 1978, the 'Mine Safety and Health Administration
(MSHA), 1/ through its attorney, filed a petition for assessment of
civil penalties charging 20 .alleged violations of the Act.
Answer'

'

(

..

On January 31,
1978~ Respondent filed a detailed response to the
\
allegations and r~quested a hearing thereon.
Tribunal
A hearing was held in Knoxville, Tennesee, on February 14, 1979.
Both MSHA and Shamrock CoaL Company were represented by counsel (Tr.

3).
Evidence
The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues
on the part of counsel·for both parties.
The Judge, after hearing all evidence, studying the record,
reviewing the exhibits, giving sympathetic regard to mitigating circumstances, and fully considering the .criteria shown in section
109(a)(l) of the Act, made findings of fact, conclusions of law
and issued an ORDER on the record, rendering his decision from the
~ench.
Twenty violations were found as originally charged.

l/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA).
2

Findings of Fact and Conclusions of Law
The findings of fact, conclusions of law, and ORDER made on the
record from the bench are hereby incorporated herein by reference and
are AFFIRMED (Tr. 19-25).
Civil Penalties Assessed
Notice No.

Date

7-0040
7-0046
7-0047
7-0048
7-0051
7-0052
7-0057
7-0058
7-0059
7-0065
7-0069
7-0070
7-0073
7-0074
7-0075
7-0076
7-0077
7-0078
7-0079
7-0080

04/26/77
05/02/77
05/02/77
05/02/77
05/02/77
05/02/77
05/02/77
05/02/77
05/02/77
05/05/77
05/05/77
.05/05/77
05/05/77
05/05/77
05/05/77
05/05/77
05/05/77
05/05/77
05/05/77
05/05/77

Standard 30 CFR

Penalty

75.601-1
75 .1710
75.1710
.75 .1710
75.516-2
75 .1103-1
75.-701
75. U00-2(b)
77.400
75 .1107-lCb)
75.518
75 .1100-2(e)
75.1106-3(c)
75 .1106-3(a)2
75.601-1
75.601
75.517
75 .1105
75.1102
75.518

$

65
55
55
55
70
65
70
100

100
65
100
65
65
65
2,
25
50

65
95

Total

95
$1,350

Dis£osition
The Judge was notified by letter from the Office of the Solicitort
U.S. Department of Labor, that the Respondent had submitted payment of

3

$1,350, as ordered for the 20-violations found by the Judge in his
BENCH decision. WHEREFORE the above-captioned is CLOSED.

-,//~- f ~Altf
Malcolm P. Lit~~
Administrative Law Ju4ge

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

Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962
(Certified Mail}

4

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

MAR 2 1 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

Civil Penalty Proceeding
Docket No. BARB 78-137-P
(A/O No. 15-02502-02010)
No. 18 Mine

SHAMROCK COAL COMPANY,
Respondent

DECISION
Appearances:

John H. O'Donnell, Attorney, Office of the Solicitor,
Department of Labor, for Petitioner;
Neville Smith, Attorney, Manchester, Kentucky, for
Re&pondent.

Before:

Judge Littlefield

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

under paragraph (3) of this subsection which penalty shall
not be mo~e than $10,000 for each such violation. Each
occurrence of a violation of a mandatory health or safety
standard may constitute a separate offense. In determining
the amount of the penalty, the Secretary shall consider the
operator's history of previous violations, the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in b~siness,
the gravity of the violation, and the demonstrated good
faith of the operator charged in attempting to achieve
rapid compliance after notificatiov of a violation.
Petition
On January 16, 1978, the Mine Safety and .Health Administration
(MSHA), 1/ through its attorney, filed a petition for asses~ment of
civil penalties charging 20 alleged violations of the Act.
Answer
On Januafy 31, 1978, Respondent filed a detailed response to the
allegations and requested a hearing thereon.
Tribunal
A hearing was held in Knoxville, Tennessee, on February 14, 1979
Both MSHA and Shamrock Coal Company were represented by counsel (Tr.

3-4).
Evidence
The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues
on the part of counsel for both parties.
The Judge, after hearing all evidence, studying the record,
reviewing the exhibits, giving sympathetic regard to mitigating circumstances, and fully considering the criteria shown in section
109(a)( 1) of the Act, made findings of fact, conclusions of law
and issued an ORDER on the record, rendering his decision from the
bench. Twenty violations were found as originally charged.
l/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA).
2

Findings of Fact and Conclusions of Law
The findings of fact, conclusions of law, and ORDER made on the
record from the bench are hereby incorporated by reference and are
AFFIRMED (Tr. 21-27).
Civil Penalties Assesse.d

No.
6-0050
6-0098
7-0017
7-0027
7-0033
7-0038
7-0039
.7-0041
7-0045
7-0049
7-0050
7-0053
7-005!1.
7-0055
7-0056
7-0060
7-0061
7-0064
7...:0066
7-0067

Date

Standard 30 CFR

06/17/26
09/29/76
02/02/77
02/14/77
03/02/77
04/26/77
04/26/77
04/26/77
05/02/77
05/02/77
05/02/77
05/02/77
05/02/77
05/02/77
05/02/77
05/02/77
05/02/77
05/05/77
05/05/77
05/05/77

75 .1725
75 .1100-2(b)
70.lOO(b)
75.303
75.329
75 .503
75.701
75.200
75.316
75.400
75.400
75 .516
75.202
75.303
75.515
75.507
75.316
75.503
75.503
75.503

Penalty
$

50
50
10
45

so

50
100

40
45
50
50
50
50
60
50
45
55
50
50

so

$1,000
Disposition
The Judge was notified by letter from the Office of the Solicitor,
U.S. Department of Labor, that the Respondent had submitted paruent
. L

3

of $1,000, as ordered for the 20 violations found by the Judge in his
BENCH decision. WHEREFORE the above-captioned is CLOSED.

7/Ja/ee1~T /dt~~tl.
Malcolm P. Littlefield,/
Administrative Law Judge

.

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

\

4

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

MAR 2 .1 1979

MX' 11AR,SHALL'

Civil Penalty Proceeding

SECRETARY OF LABOR,
Petitioner

Docket No. PITT 79-86-P
Assessment Control No.
36-06113-03004

v.
Westland No. 2 Mine
CONSOLIDATION COAL CO.
Respondent

: '*
DECISION

On March 9, 1979, the Mine Safety and Health Administration (MSHA),
moved the Judge to approve a settlement to which the parties had ~greed,
and dismiss the above-captioned.
The alleged violations and proposed settlements are as follows:

30 CFR Standard

Number

Assessment

Settlement

23226

7/17/78

77 .1003

$106.00

$106.00

233770

7/24/78

75.1719-4

48.00

36.00

Total $154.00

$142.00

As grounds to support the proposed reduction in the penalty for
citation No. 233770 MSHA avers:
"A reduction from the original assessment is
warranted because the negligence of the operator
in citation No. 233770 did not merit an allocation
of nine points. By reducing this amount of five
points and by applying the figures supplied in the
penalty conversion table, an appropriate penalty
is $36;00 rather than $48.00."
As the above settlement is within the bounds of reason, does not
shock the conscience and will effectuate the deterrent purpose of civil
penalties under section llO(a), it is hereby APPROVED.
The above-captioned is DISMISSED.

The hearing scheduled for Wednesday, March 14, 1979, in
Pittsburgh, Pennsylvania, was VACATED.

'--fl1. /J. §

l/l/~,A4A/

f. /ra.tt;rcq
J... rf
•

y:i

/! ,1

Malcolm P. Littlefield ·
Administrative Law Judge
Distribution:
Regional Solicitor, U.S. Department of Labor, Room 14480-Gateway
Bldg., 3535 Market Street, Philadelphia, Pa. 19104 (Att: Marshall
H. Harris and Barbara Krause Kaufmann, Attorneys)(Cert. Mail)
Consolidation Coal Company, Consol Plaza, 1800 Washington Road,
Pittsburgh, Pa. 15241 (Att: Karl T. Skrypak, Attorney)
(Cert. Mall)

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

M/l.R 2 1 1979

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

Civil Penalty Proceeding
Docket No. BARB 78-637-P
(A/O No. 15-02502-~2024)
No. 18 Mine

SHAMROCK COAL COMPAHY,
Respox:ident
DECISION
Appearances:

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

Be fore:

Judge Littlefield

Introduction
This is a proceeding for ·assessment of civil penalties ·against
the Respondent and is governed by section llO(a) of the Federal Mine
Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9,
1977), and section 109(a)(l) of the Federal Coal Mine Health and
Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969).
Section llO(a) provides as follows:
The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who
violates any other provision of this Act, shall be assessed
a civil penalty by the Secretary which penalty shall not be
more than $10,000 for each such violation. Each occurrence
of a violation of a mandatory health or safety standard may
constitute a separate offense.
·Section 109.(a)( 1) provides as follows:
The operator of a coal mine in which a violation.occurs
of a mandatory health or safety standard or who violates any
other provision of this Act, except the provisions of

title 4, shall be assessed a civil penalty by the Secretary
under paragraph (3) of this subsection which penalty shall
not be more than $10,000 for each such violation. Each
occurrence of a violation of a mandatory health or safety
standard may constitute a separate offense. In determining
the amount of the penalty, the Secretary shall consider the
operator's history of previous violations, the appropriateness of such penalty to the size of the business of the
operator charged, whether th<: operator was negligent, the
effect on the operator's ability to continue in business,
the gravity of.the violation, and the demonstrated good
faith of the operator charged in attempting to achieve
rapid compliance after notification of a violation.
J?etition
On August 17, 1978, the Mine Safety and Health Administration
(MSHA), 1/ through its attorney, filed a petition for assessment of
civil penalties charging nine alleged violations of the Act.
Answer
On September 14, 1978, Respondent filed a detailed response to
the allegations and requested a hearing thereon.
Tribunal
A hearing was held in Knoxville, Tennessee, on February 14, 1979.
Both MSHA and Shamrock Coal Company wer.e represented by counsel (Tr.
4-5).
Evidence
The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues
on the part of counsel for both parties.
The Judge, after hearing all evidence, studying the record,
reviewing the ex.hibits, givingsympathetiC1r~gardtomitigating circumstances, and fully considering the criteria shown in Section 109(a)(l)
of the Act, made findings of fact, conclusions of law and issued an
ORDER on the record, rendering his decision from the bench. Nine violations were found as originally charged.

17 Successor-in-interest to the Mining Enforcement and Safety AdminIstration (MESA).
2

Findings of Fact and 'conclusions of Law

The findings of fac-t, conclusions of law, and ORDER made -0n
the record from the bench are hereby incorporated herein by reference
and are AFFIRMED (Tr. L4-17).
Civil Penalties Assessed
Notice No.

Date

Section 30 CFR

Penalty

7-0129
7-0131
8-0012
8-0013
8-0014
8-0015
8-0016
8-0017
8-0018

09/26/77
09/29/77
02/21/7 8
02/21/78
02/21/78
03/01/78
03/01/78
03/01/78
03/01/78

75.316
75.202
75.400
75.200
75.200
75.1710
75.1710
75.1710
75.1710

$200
25
:35
25
25
35
35
35
35
Total

$450

Disposition
The Judge was notified by letter from the Office of the
Solicitor, U.S. Department of Labor, that the Respondent had submitted.
payment of $450.00, as ordered, for the nine violations found by the
Judge in his BENCH decision. WHEREFORE the above-captioned is CLOSED.

71/~?. flAA..~IV"V\
Malcolm P. Littlefield
Administrative Law Judge

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

3

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

March 22, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

Civil Penalty Proceedings
Docket Nos.
PITT 79-55-P
-108-124-

Mine
A.G. NO.
36-00973-03003 Banning
-00809-03006 Newfield
-00808-03001 Russell ton

REPUBLIC STEEL CORPORATION,
Respondent
ORDER APPROVING SETTLEMENT AGREEMENTS
AND DIRECTING PAYMENT
Appearances:

Inga Watkins, Esq., Office of the Solicitor of Labor,
for Petitioner
B. K. Taoras, Esq., Attorney for Republic Steel
Corporation, Respondent

On March 21, 1979, in open court, counsel for Petitioner moved for approval
of settlement agreements in each of the above docket numbers.
With respect to Docket No. PITT 79-55-P, the parties agreed to settle
the matter for payment of $295, the amount of the original assessment. The
violation charged was of 30 CFR 75.200. The hazard was reduced by circumstances and the negligence was slight.
With respect to Docket No. PITT 79-108-P, the parties agreed to settle
the matter for payment of $122, the amount of the original assessment.
The citation charged a violation of 30 CFR 75.1725. The condition was not
serious, there was a minimal history of prior violations of this standard
and the condition was abated in good faith.
With respect to Docket No. PITT 79-124-P, the parties agreed to settle
the matter for payment of $180, the amount of the original assessment. The
citation charged a violation of 30 CFR 75.507. The condition was not serious and there was a minimal history of prior violations of this standard.
Having duly considered the matter, I co~clude that the settlement
agreements should be approved as being consistent with the policy of
the Act.
Therefore, it is ORDERED that the settlement agreements are APPROVED.
Respondent is ORDERED to pay within 30 days of the date of this decision

2

the following amounts:
Docket No. PITT 79-55-P
-108-P -124-P -

$295
122
180

Upon payment of this amount, the proceedings will be DISMISSED.

j

<Y1/Jrt.L-5

AfJ v~dn e,/_,

James A. Broderick
Chief Administrative Law Judge

Distribution:
B. K. Taoras, Esq., Attorney for Republic Steel Corporation, Coal Mining
Division, 604 Faxette Bank Building,Uniontown, PA 15401
Inga Watkins, Esq.·, Trial Attorney, MSHA, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203

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

March 26, 1979

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

. Civil Penalty Proceeding

.•

Docket No. BARB 78-606-P
A.O. No. 15-07166-02023V
Sinclair No. 2 Mine

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

John H. O'Donnell~ Trial Attorney, Office of the
Solicitor, U.S. Department of Labor, Arlington,
. Virginia, for the petitioner;
\~homas F. Linn, Esquire, St. Louis, Missouri, for
the respondent.

Before:

Judge Koutras
Statement of the Proceeding

This is a civil penalty proceeding pursuant to section UO(a)
of the Federal Mine Safety and Health Act of 1977, initiated by the
petitioner against the respondent on August 7, 1978, by the filing
of a petition for assessment of ~ivil penalty, seeking a civil pen~
alty assessment for two alleged violations of mandatory safety standards 30 CFR 75.200, and 75.1400, set forth in section 104(c)(2)
orders, issued by Federal mine inspectors Arthur J. Parks and
Thomas M. Lyle in October and December 1977. Respondent filed an
answer and notice of contest on September 7, 1978, denying the allegations and requesting a hearing. A hearing was held in Evansville,
Indiana, on December 12, 1978, and the parties submitted posthearing
proposed findings, conclusions, and briefs, and the arguments set
forth therein have been 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

regulations as alleged in the petition for assessment of civil penalty filed in this proceeding, and, if so, (2) the appropriate civil
penalty that should be assessed against the respondent for the alleged
violation, based upon the criteria set forth in section 109(a)(l) 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 th~ business of the oparator,
(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 Coal Mine Health and Safety Act of 1969,
30 U .s .c. § 801 \~t ~·, now the Federal Mine Safety and Health Act
Qf 1977.
2.

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

3. Interim Commission Rules, 29 CFR 2700.1 et~· 43 Fed. Reg.
10320-10327, March 10, 1978.
Stipulations
The parties stipulated to the following:
1. At all times relevant, the mine was owned and operated by
Peabody Coal Company, a large coal mine operator. The mine employed
219 persons underground, 25. persons on the surface, and has a daily
production of 3,000 tons of marketable coal (Tr. 5).
2. Any penalty assessed for the alleged violations will not
adversely affect the respondent's ability to remain in business (Tr.

5).
Discussion
104(c)(2) Order No. 7-0127, 1 AJP, issued on: October ~8, 1977, by
Federal coal mine inspector Arthur J. Parks, citing a violation of
30 CFR 75.200, states as follows:
The approved roof control 'plan (September 2, 1977) was
not being followed
the No. 2 Unit (LD. 004) Northwest
Mains in that entries and crosscuts were being driven in

on

2

excessive widths (Last crosscut between No. 1 & No. 2
entries- 23 ft. 5 inches; No. 4 entry at the feeder- 22 ft.
8 inches; No. 4 entry 2 crosscuts inby the feeder- 24 ft.
No. 5 entry 30 feet inby spad no. 915-21 feet). Responsibiiity of Albert Knight, mine manager; Byron Bailey and
Charles Chumley, Asst. Mine Managers; and Roy Stills and
James Griggs, Section Foremen.
30 CFR 75.200 provides as follows:
Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system
of each coal mine and the means and measures to accomplish
such system. The roof and ribs of all active underground
roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs. A roof control plan
and revisions thereof suitable to the roof conditions and
mining system of each coal mine and approved by the Secretary shall be adopted and set out in printed form on or
before May 29, 1970. The plan shall show the type of support and spacing approved by the Secretary. Such plan
shall be reviewed periodically, at least every 6 months by
the Secretary, taking into consideration any falls of roof
or ribs or inadequacy of support of roof or ribs. No person shall proceed beyond the last permanent support unless
adequate temporary support is provided or unless such temporary support is not required under the approved roof
control plan and the absence of such support will not pose
a hazard to the miners. A copy of the plan shall be furnished to the Secretary or his authorized representative
and shall be available to tha miners and their
representatives.
Testimony and Evidence Adduced by Petitioner
MSHA inspector Arthur J.·Parks testified that he is familiar with
the Sinclair No. 2 Mine which is located near Drakesboro, Kentucky,
near Muhlenberg County and is in the Kentucky No. 9 seam. A conventional method of mining is used there, i.e., the coal is cut~ reeled
and then shot and loaded out with a loading machine. Continuous mining
machines are not presently utilized (Tr. 9-10). On October 18, 1977,
he issued to assistant mine manager' Byron Bailey, section 104(c)(2)
Order of Withdrawal No. 1 AJP, citing 30 CFR 75.200, because he
observed places that were wider than the 20-foot width that the roof
control plan called for. The first place that he noticed in excess
of 20 feet was the last open crosscut on the return side of the unit.
The crosscut between Nos. 1 and 2-entries, which is the last open
crosscut on the return, was 23 feet 5 inches. He made this determination by using a 50-foot lape line. In addition, he found three
3

other places where the roof control plan had not been followed. Two
places were in front of the feeder, which is in the No. 4 entry, and
another place was in front of the power center, which is in the No. 4
entry. The fourth pl~ce listed on the face of the order is No. 5
entry, 30 feet inby spad No. 915; the width at that point was 21 feet.
Under the roof control plan, the maximum width that each of these
entries could be was 20 feet (Tr. 16). He was at the mine to investigate a roof fall, which, in turn, prompted him to check for wide
places or other violations. The roof-bolting pattern seemed to be
satisfactory.
Inspector Parks indicated that cutting wide places weakens the
top, which, in turn, may result in a roof fall since the top weakens
when the entry is too wide. Coal at the Sinclair No. 2 Mine averages
58 inches in height. In some places, one can stand up, but in other
places it is difficult to even walk, and it has been determined that
a 20-foot height in this coal seam works best. With the exception of
shift changes, as a rule, there is someone in the area 24 hours a day.
The cracks in the roof presented a danger of a potential roof fall.
He sounded the roof and, in his opinion, it sounded drummy. From his
visual examination of the roof, he determined that some timbers needed
to be set in quickly to compensate for the wide entries in the crosscuts (Tr. 17-20).
Inspector Parks found the violation was of such a nature as could
significantly and substantially contribute to the cause and effect of
a mine safety and health hazard because a roof fall could be fatal or
permanently injuring. Such a roof fall previously occurred in the
fourth crosscut from the face of the No. 3 entry, where the entry and
c1osscut widths were approximately 18 feet: From this incident, he
az dved at the conclusion that if the roof fell in an area with that
~idth, it would be likely in areas where the width is even wider,
!.··£•, the face. Mr. Parks believed the operator should have known
oi the condition, and that with reasonable effort, should have known
that certain areas were too wide. The last open crosscut between
No. 1 and No. 2 entries, which is 23 feet 5 inches, is the place
where an air measurement is customarily taken by the face boss or
preshift examiner. Since the air measurement is determined by measuring across the crosscut and then multiplying the height to get the
area and then multiplying that by the linear reading on the anemometer
to find out what the quantity of air is passing throught the crosscut,
in measuring the width, respondent would have determined that the
crosscut was 3 feet 8 inches too wide and could have set some timbers
in it. In addition, the face boss marks the width of the face for
the cutter and driller to follow, and by so marking the area, the
width is determined (Tr. 22-24).
While the excessive widths were visually obser.vable, Mr. Parks
also measured the places that were cited on the face of the order,
and these were from the narrowest points of the entry and/or crosscuts and were not from duck nests (i.~., a V-shaned cut in the back
4

of the rib that occurs as a result of a cutterman sumping too far to
the right, thereby pulling his bar too far to the left). If he had
found that an effort had been made to hold the width of the ribs to
18 feet and' the general rib line was 18 feet, he doubts that he would
have cited any violations because the average rib line would probably have been 20 feet or no more than 20 feet. The ribs were not
straight; they were full of duck nests, and there were duck nests on
the entries. With regard to the probability of injury or death
occurring to a miner due to the condition, Mr. Parks indicated the
area in front of the feeder would be the most dangerous, and his reason for this opinion is that when men are traveling through this area,
due to the car and feeder noise, the men might not hear the top work-

ing (Tr. 25-29)~
Inspector Parks terminated the order on October 20, 1977, 2 days
after it issueds and he believed the operator did not demonstrate good
faith in abating the condition because the 100 timbers which had to be
set in order to terminate the order, could have been set on the second
and third shifts on October 18. However, the foremen at the mine had
gone on strike and, as a result, there was no one to set the timbers
earlier, and when he returned to the mine on the 19th, he. saw only
three men underground (Tr. 34).
On cross-examination, Mr. Parks stated that the term "excessive
widths," as used in his order, means in excess of 20 feet. When he
issued the order~ he was aware of the provision on page R-5 of the
MESA Manual that defines an "excessive width" as 12 inches or more
than the planned opening width; however, he later testified he was
not aware of it. According to the MESA Manual, the widths cited in.
the order would not have been excessive (Tr. 36-40).
Mr. Parks testified that he made the measµrements with a cloth
tape measure, and assistant mine manager Byron Bailey held the other
end of the tape measure for him. He doubted that the tape could
have stretched enough through use to make a difference in measuring.
He did not know when the last crosscut between Nos. 1 and 2 entries
(23 feet 5 inches wide) was mined (Tr. 41-45). With regard to the
first area that he noted which was 23 feet 5 inches and located in
the last open crosscut, Mr. Parks indicated the men were still working in the general vicinity. He did not determine upon first seeing the area, that it was an unwarrantable failure when he found out
that it was excessively wide, since he thought that it was a mistake.
However, after he saw three more places' that were too wide, he deter!llined that it was a practice throughout the mine and that some timbers should be put up. Although he observed seven places that were
in violation due to excessive widths, he docume~ted only four on his
order. When he went back to terminate the order and to check over
the rib, he found, in total, approximately 16 places that were too
wide. Once he issued the order~ he would not terminate it until all
the wide places on the run were timbered, thereby making the area

5

safe. After he came back to terminate, he found that there were·
other places that were wider than the ones that he cited (Tr. 54•
57).
Inspector Parks testified that he cited only four places because
he was satisfied in his mind that if he started writing up one citation after another, that those working. at the mine could continue
working and endangering themselves if there were more wide places.
His intent was to get the units shut down and make the people aware
of the bad top or bad conditions from the excessive widths and get
the condition corrected (Tr. 59-63). When he inspected the top and
areas where the excessive widths existed, he sounded the top, however,
he prefers to rely upon the examination of the roof, since he cannot
tell a great deal en the basis of sound. He was, nonetheless, satisfied with it. Although he did not like the looks of the roof, he
understands that the pinning pattern in roof control can hold the
roof in place even if it has er ks in it. The areas were pinned and
he did not observe a pin patter.. ,riolation. Timbers are frequently
knocked out by equipment running through, especially on the corners
where the shuttle cars are running through.since they are wide
machines (Tr. 69-70). Although he found no areas in the entries
cited to be les~\ than 20 feet wide, the entry and the crosscut at
the roof fall were 18 feet wide and on previous occasions he did
measure other areas on the unit and some were less than 20 feet
and some crosscuts were 17-1/2 feet wide (Tr. 74-76).
Mr. Parks believed the wide places are caused by the creation of
duck nests, i.e., the cutterman getting off his mark and then trying
to get back on-; but not really knowing where he is. It is a multiplying effect and the area could keep getting wider and wider, and
while the rib line could be perfectly straight, there could still be
an excessive width. He described where his measurements were made
from the rib line, and he indicated there were no straight rib lines
throughout the unit (Tr. 77-81).
Inspector Parks inidcated that when he returned to the mine the
next day, there were few people there because of a strike. He
referred to a memorandum from his superi0rs who advised the inspector to consider issuing section 104(c) unwarrantable failure o.rders
rather than 104(b) notices.
When he returned to the .,:Lne, hE', did not see very many men there
and he assumes that there was not a s~f ficient number of men working
to terminate the order. He found four more places t'hat needed to be
timbered before he could terminate the order' .but he did not issue a
notice or order on those other areas because the mine was still under
a closure order and no work was being performed. Had it not been for
the strike, he does not know whether good faith would have been shown,
but he can reasonably expect it to be shown (Tr. 84-87).
6

In response to bench questions, Mr. Par~s stated that in order
to abate the order, 100 posts were set all over the unit, but at the
four locations with excessive wid.ths, approximately 30 posts were
set. The posts that were set in the other locations were set in connection with other wide places and entries not cited in his order.
The ultimate effect of his withdrawal order, therefore, went to other
wide places which he did not cite and which the operator was required
to abate anyway. Aside from the wide places that he found, these
locations were in compliance with the other provisions o.f the roof
control plan, and he did not notice a violation of the roof-control
pattern according to the pin pattern (Tr. 97-98).
Respondent 1 s Testimony
Albert Knight, general mine manager, testified he was at the mine
surface on October 18, 1977, and became aware of. the subject order
when the face foreman called him and told him that an order had been
issued on the section. When he arrived at the cited area, he saw that
the rib had broken and they began timbering it out so that it could
be abated on the second shift. He was not present when the order was
abated, but subsequently learned that 18 to 25 timbers had to b~
installed to take• care of the four areas cited in the order. A work
stoppage had been called by the face fore~en and mine management
personnel based on the (c) orders and notices that had been issued
to the Sinclair No. 2 Mine and to other mines during that perioa of
time (Tr. 104-105).
Mr. Knight did not consider the alleged violation to be caused by
an unwarrantable failure, and he did not believe that it was noticeable
enough for anyone to pay much attention to it (Tr. 110-111). The roof
control plan (Exh. P-2) calls for the width of openings on the entries
to be 20 feet and rooms to be 26 feet. For entries, that plan calls
for roof support to consist of crossbars plus supplementary timbers
and crossbars, if needed. With respect to rooms, they are not timbered
unless they have an abnormal condition. The roof support plan requires
that they timber out any entries. The belt entry was timbered up to
the tailpiece and the other entries were timbered up (Tr. 114-116).
Mr. Knight described "duck nests, 11 and stated it is possible to
avoid creating them by having a conscientious machine operator~ Cutting machine operators are shown where to cut by the face boss marking the ribs and th'e center line with . florescent paint. Even though
mine management shows the areas to be cut, it is still possible for
duck nests to be created through error or inexperience on the part
of the machine operator (Tr. 117-120).
He observed each of the areas cited by Inspector Parks in his
order, and in his view, each of the -wide areas were caused or created
by cutting duck nests, and the roof above the duck nest·s was roofbolted (Tr~ 121-122).
7

Mr. Knight alluded to a meeting held by mine management with
local MSHA officials in Madisonville to discuss the issuance of
unwarrantable failure notices at the mine. The work stoppage by the
mine foremen was caused by the issuance of these orders and the foremen were concerned because they took them personally and viewed them
as a reflection on their job performance. Since that meeting, he
received no more unwarrantable failure orders (Tr. 123).
On cross-examination, Mr. Knight stated that the meeting with
MSHA was not intended to intimidate anyone. He clarified his previous statement that no subsequent 104(c)(2) orders were issued, and
indicated that one was issued on October 27, 1977, for a section
75.1704 hoist violation, and indicated that another general inspection has not been completed at the mine (Tr. 130). Mr. Knight was
not present on the section when Mr. Parks issued his order or made
his measurements (Tr. 139).
104(c)(2) Order No. 7-0166, 1 TML, issued on December 30, 1977,
by Federal coal mine inspector Thomas M. Lyle, citing a violation of
30 CFR 75.1400, states as follows:
A qual~fied hoisting engineer was not provided on the
surface at or near the hoist facility of the Sinclair underground No. 2 Mine on the third shift while persons were
underground in the event of an emergency should arise to
withdraw such persons from the underground workings.
Responsibility of Ruben Thorpe, supt. and Bill Hampton,
mine foreman third shift.
30 CFR 75.1400 provides as follows:
Every hoist used to transport persons at a coal mine
shall be equipped with overspeed, overwind, and automatic
stop controls. Every hoist-handling platforms, cages, or
other devices used to transport persons shall be equipped
with brakes capable of stopping the fully loaded platform,
cage, or other device; with hoisting cable adequately
strong to sustain the fully loaded platform, cage, or
other device; and have a proper margin of safety. Cages,
platforms, or other devices which are used to transport
persons in shafts and slopes shall be equipped with safety
catches or other no less effective devices approved by the
Secretary that act quickly and effectively in an emergency,
and such catches shall be tested at least every 2 months.
Hoisting equipment, including automatic elevators, that is
used to transport persons shall be examined daily. Where
persona are transported into, or out of, a coal mine by
hoists, a qualified hoisting ertgineer sh~ll be on duty
while any person is underground, except that no such
engineer shall be required for automat.ically operated
cages, platforms, or elevators. [Emphasis added. J
8

Petitioner's Testimony and Evidence
MSHA inspector Thomas M. Lyle confirmed that he issued the order
in question and served it on Bill Hampton, the third shift foreman.
Mr. Lyle testified that he arrived at the mine at 4 a.m. on
December 30, 1977, and encountered no one in the area of the foreman's office nor in the hoist room, where normally a man would be on
duty. After walking through the bath house and the supply room which
he originally had passed through, he encountered a supply clerk of
who he asked the whereabouts of the foreman and .hoistman. The supply clerk told him that Mr. Hampton was the foreman and to the best
of his knowledge was also the hoistman and that he and the other men
were underground (Tr. 142-145).
He then went to the shop and asked foreman Randy Plunkett as to
where Mr. Hampton might be located and was told that Mr• Hampton was
in the mine with two other foremen. He was also told by Mr. Plunkett
that Mr. Hampton was the hoisting engineer. He asked Mr. Plunkett
whether he was certified to run the hoist and was told that he was
not and that he did not know anything about running one. He then
asked Mr. Plunkett if he was aware that section 75.1400 of the Code
of Federal Regulations requires that a hoisting engineer be on duty
at all times. Mr. Plunkett responded that he was aware of the provision, but that he was not the mine foreman, but would try to get
in touch with Mr. Hampton. However, Mr. Plunkett was unsuccessful
in doing so. In the meantime, Mr. Lyle called his superviso~, Clyde
Turner, and told him what he had found at the mine and that he was
going to issue a 104(c)(2) order. At 5:45 that morning, Byron Bailey,
the assistant foreman on the day shift, came in and Mr. Lyle told
Mr. Bailey that he was going to issue an order. Mr. Bailey replied
that he did not know exactly why Bill Hampton was underground, but
that both he and Mr. Hampton were aware that they were supposed to
keep a qualified hoisting engineer on duty and said that there is
no excuse. Mr. Bailey finally got in touch with Mr. Hampton by
telephone and told Mr. Hampton that an order was in the process of
being issued and that he should withdraw the men from the mine and
bring them outside (Tr. 146-155).
Mr. Lyle described the hoisting device in ·question and its operation. He indicated that it was possible for men to walk out of the
mine without using a hoist unless they were injured. However, at the
time the order issued, the slope was icy and, in.~is opinion, two men
could not carry an injured man out of•the mine on a stretcher and up
the slope. If they should be successful in doing so, it would take
an extremely long time.
He spoke with Mr. Hampton after he came out of the mine and
Mr. Hampton told him that he knew that there was supposed to be a
hoist man on top, but that there were only two men besides himself
who were working and he just could not sit around while they were
9

in the mine rock dusting, so he went in the mine to help them.
Mr. Hampton then told him that he promised that it would not happen
again (Tr. 155-162).
Mr. Lyle testified that he believed the violation could have
contributed to a "significant and substantial" safety hazard because
if someone underground other than Mr. Hampton had been injured, it
would have taken Mr. Hampton probably 10 or 15 minutes to walk up to
the hoist room and drop the car. In addition, someone would have to
have been ready to help load the car and bring them out. It would
have probably taken 30 minutes to do all this. Had there been a
hoist man on the surface, if someone were to be injured, all that
would have been necessary would be to call him and tell him to drop
the car and then load the injured man and bring him straight out.
In a matter of approximately 3 minutes, the injured man would have
been brought to the surface and would be on his way to a hospital
(Tr. 163-165).
Mr. Lyle testified that he made a finding that the violation was
an unwarrantable failure because Mr. Hampton is"'a mine 'foreman, 'he '
had been traine~ in operating a hoist and had certification papers as
to his ability and, he was aware of the requirement that someone be
on duty to operate the hoist. In addition, on other occasions complaints had been made that men were going into the mine on Sundays
without a hoisting engineer and he and other inspectors had talked
to the company personnel at the mine. He had talked with Ruben
Thorpe, the superintendent of the mine, and the last of these conversations was right after the miners went on strike, sometime
around December 5 or 6, 1977 (Tr. 165-167).
Although 30 CFR 75.1400 contains the caveat that a hoisting man
need not be present if there are automatically operated cages) platforms or elevators, Mr. Lyle did not believe that it would be applicable to the situation at hand because Sinclair No. 2 Mine does not
have an automatic cage. Even the emergency escapeway requires a person to raise it. He served the notice of abatement (Exh. P-5) on
Mr. Hampton 1 hour and 15 minutes after he issued the order. With
regard to whether or not good faith was exercised, upon arriving at
the_mine, he did not receive much cooperati9n on the surface since the
mine foreman was underground with two other foremen, except th·at he
was called for. After Mr. Bailey arrived, however, he cooperated
with him. He abated the violation after going down to the hoisting
room with the day shift hoistman, Larry Cleveland. He checked the
hoist' as Mr. Cleveland operated it. Since Mr. Cleveland was a qualified hoisting engineer and was on d~ty at the time, he abated the
violation. Mr. Cleveland· was not present at the time he issued the
order of withdrawal, and, in his opinion, Mr. Cleveland showed a
good degree of proficiency with respect to operating a hoist (Tr.

161-170).
10

On cross-examination, Mr. Lyle confirmed that the mine was not
in operation on the day he issued his order, except for nonunion
personnel,· and this was due to the nationwide miners' strike. The
three people that were underground did not use the slope car, and
'apparently walked into the mine. He did see Mr. Hampton walking near
the iron core of the portal. From his reports, it was a practice on
Sunday for supervisory personnel to walk into the mine and inspect
it for hazardous conditions and then walk back out. The slope was
732 feet long from the portal to the bottom and was at a 16-degree
angle. He has walked down the slope and to the ~est of his recollection, there is a handrail. The slope, however, was severely
frozen (Tr. 172-176).
Mr. Lyle testified that in addition tp the hoist telephone, there
was also a mine telephone underground that connects with the office on
the surface and could be used if one was unable to reach anyone in
the hoist· house. If someone was in the shop and it would take him
approximately 3 minutes to get over to the hoist house, he would consider that as being in close proximity to the hoist house. Had there
been a qualified hoisting engineer in the bathhouse, office, or in the
shop, he would not have issued the order regardless of whether the
hoisting enginee~ was dressed, because in an emergency situation, he
could have summoned someone out of the mine. In addition to the
regular slope hoist, there is an emergency slope hoist. On the basis
of Mr. Plunkett's earlier statement, he does not know whether or not
Mr. Plunkett could operate the emergency hoist (Tr. 180-183).
Since it is likely that none of the three men were transported
into the mine b.y a hoist, Mr. Lyle still believed that a qualified
hoisting engineer has to be on the surface. He does not recall anyone ever commenting to him that when people walked into a mine and
contemplated·walking out of the mine, that irt that case no hoisting
engineer had to be in the hoisthouse. He does not know how long it
takes for the hoist car or the hoist to get down to the bottom since
he has never timed it (Tr. 186-187).
During a strike such as the one that was underway on December 30,
1977, Mr. Lyle agreed that it is a prudent and good mining practice
to go in and inspect the mine on a regular basis and make sure that
the integrity of the mine is maintained. He does not know if t.hat
is what Mr. Hampton and hh two associates were doing that day, since
they told him that they were rock dusting. Although Mr. Hampton, a
·qualified hoisting engineer, was on the surface at 6 a.m., a.s evidenced by the fact that he gave Mr. Hampton the order at that time,
he did not abate the order until 7:15 a.m., because he was never
asked to abate until Mr. Cleveland arrived, since he was told that
they were going to discuss it (Tr. 188-189).
In response to questions from the bench, Mr. Lyle indicated
that there is no question in his mind that the system of taking

li

people underground constitutes hoisting, and he does not consider
it haulage. However, he did not know why it is not haulage, and
neither he nor his fellow inspectors, to the best of his recollection, have questioned whether this particular device is a hoisting
device. The slope in question is a designated escapeway (Tr. 195205).
Respondent's Testimonx
General mine manager Albert Knight testified he was at the mine
the day the order issued and he confirmed that the mine was not working because of a nationwide miners' strike. The first shift was
timbering, and the shift in question was fire-bossing and dusting.
He did not know whether the hoisting device was used by the third
shift on the day the order was issued. Normally, they had not been
using it as the men had been walking in the mine and then walking out.
He was told by Mr. Hampton that on the day the order issued, he walked
in the mine and they walked out. In his opinion, it is not necessary
to use the hoisting device to get underground since it is possible
to walk in and to walk out of the mine. The slope is approximately
750 feet in le~gth and is at a 16-degree angle. There are handrails
which go all the way to the bottom. The hoisting device is used to
transport men, out most of the time it is used for supplying the
mine (Tr. 214-218).

Mr. Knight testified that it takes approximately the same time
to walk from the bottom area up the full 700 feet to the portal as
it would to use the hoisting device to bring a group of people out
of the mine--approximately 7 minutes. Whether or not section
75~1400 requires a hoisting engineer to be on duty if the hoisting
device is not used to take persons underground, has been an argument
with the union people for about 3 years. Up until this particular
order was written, he has consistently maintained that a hoisting
engineer is not necessary when the device is not being used to get
underground. Since the order issued, they have had a hoistman on
duty on the surface and he described the operation of the hoist (Tr.
218-220).

Mr. Knight testified that during the strike, it was customary
on the third shift to walk in and out of the mine and not use the
device. Prior to the time the order was issued, the only time that
the necessity. of having a hoist was brought up was when the hoistman, a union employee, brought up the fact of going in and out of
the mine and that it was against the law. When the mine is not on
strike, the hoistman is on duty 24 hours per day. He is a qualified
hoisting engineer and is on call 24 hours per day; thus, if he had
been needed on the morning of December 30, 1977, he could have
arrived at the mine in about 6 minutes, even though he lives about
5 or 6 miles .from the mine (Tr. 221-223).

12

On cross-examination, Mr. Knight testified that while he could
not recall the temperature on the day in question, he confirmed there
could have been ice on the slope, even though it had been cleaned.
The mine met the requirements of section 75.1402 and there are two
telephones in the hoisthouse equipped with speakers and a page system
which can be heard over the entire surface of the mine. He was not
on the mine property at the time the order was issued, and has no
idea why it took so long for the inspector to inform Mr. Hampton that
the order of withdrawal had been issued. Normally, during a production shift, men are hauled in and out of the mine (Tr. 223-226).
Findings and Conclusions
Fact of Violation--30 CFR 75.200

In its posthearing brief, petitioner argues that it has established by a preponderance of the evidence that the areas cited were
in fact wider than the 20 feet allowed by the mine~approved roofcoritrol plan. Although conceding that the inspector cited only
four places that had excessive widths, when, in fact, he observed
16 additional such places, petitioner asserts that the respondent
understood that mining excessive widths would not be tolerated and
the listing of the additional places would simply have been an exercise in futility. Further, although there were uduck nests" in the
places cited, petitioner maintains that the inspector made actual
measurements of the wide places, but did not include any part ·of a
d.uck nest in his measurements. Regarding the Inspector's Manual
provision defining "excessive 11 widths, petitioner argues that the
roof-control plan is controlling and the Inspector's Manual reference
is only relevant when weighing the gravity of the violation.
Petitioner points out that the excessive widths were not caused
by rib sloughing and the inspector believed they resulted from a

practice in the unit in question to mine areas at excessive widths,
and considering the fact that the inspector observed some 16 places
with excessive widths, and it took 18 to 25 timbers to abate the
four places described in the order, petitioner maintains there was a
practice of being indifferent about the excessive width problem on
the part of the respondent, and the face boss told the inspector
that· the problem resulted because the cutting machine operator on
the second shift was prone to cut too wide.
Respondent's Arguments
In its posthearing brief, respondent argues that petitioner
failed to establish a violation of section 75.200. While conceding
that its roof-control plan restricts the widths of entries and crosscuts to 20 feet, respondent arg1:1es that its plan does not indicate
that widths greater than 20 feet are excessive. Citing section
75.201, which provides that the method of mining followed in a mine

13

shall not expose miners to unusual dangers from roof falls caused by
excessive widths of rooms and entries, respondent asserts that the
record is devoid of any "unusual dangers from roof falls" attributable
to openings or widths beyond those specified in its plan. Further,
respondent cites petitioner's 1974 Inspector's Guidelines, which define
the term "excessive" as "12 inches or more" than the planned opening
width and argues that the facts adduced, when applied to the section
75.201 definition of "excessive" and the Inspector's Guidelines, cannot support a finding that excessive widths existed at the mine as
charged in the citation. Respondent also argues that the wide areas
cited resulted from "duck nests," which in respon.dent 's opinion, are
normal conditions caused by the cutting machine.
I find that the preponderance of the evidence adduced in this
proceeding supports a finding of a violation of section 75.200. It
is clear from the evidence presented, that the widths of the entries
and crosscuts cited by the inspector were driven in.widths in excess
of the approved roof-control plan. It is also clear that the failure
to comply with the roof-control plan constitutes a violation of section 75. 200. Peabody Coal Company, 8 IBMA 121 (~1977). Respondent's
suggestion that the inspector's measurements are suspect is rejected.
I fail to underst'{l.nd how one can calibrate a tape measure, as suggested by respond~·nt' and .respondent was free to take its own measurements, but did not do so. Respondent's personnel assisted the
inspector in taking his measurements and I find the inspector's
testimony regarding those measurements to be credible. Respondent's
assertion that the wide places measured by the inspector resulted from
"duck .nests" caused by the cutting machine bar is likewise rejected.
Respondent concedes that the measurements were made in the general
vicinity of the duck's nests and the inspector's testimony that he
was careful to avoid the duck nests while making his measurements,
stands unrebutted. Under the circumstances, I find that the inspector's measurements as stated in his order, were accurate and that
petitioner has established that the wide places did, in fact, exist
as stated on the face of the order.
Respondent's reliance on the cited Inspector's Manual instructions and guidelines regarding the interpretati9n of the term "excessive widths" as a defense to the citation, is rejected. The Inspector's Manual does not have the force and effect of law or a mandatory
standard and is not controlling. Here, the roof-control plan and
provision with regard to the widths of the areas cited is controlling
and any deviation from that provision is a violation not only of the
plan, but also of section 75.200, Even if the Inspector's Manual
reference at 75.201-l(Exh. R-5) were deemed to be controlling, it
seems clear to me that the inspector followed t,he exception noted
which states: "[I]f it is evident that ·excessive widths are prevalent and are caused by poor mining practices, a violation shall be
cited." In this case, it is clear from the inspector's testimony
that he believed the excessive widths resulted from poor mining practices in that the cutting machine operator consistently failed to

14

cut straight entries and crosscuts and that mine management failed to
insure.that the marked-out areas were, in fact, cut straight. Respondent's own witness conceded that wide entries were, in part, due to
poor mining practices. Further, although not detailed in his order,
the inspector cited numerous other locations where the entries and
crosscuts were driven too wide and it is obvious to me from his testimony that he believed the excessive widths which he found on the day
of his inspection were prevalent, were caused by bad mining practices
on that day, and that the area cited was not adequately supported.
While it may have been better for the inspector to have included these
other areas in his order, the fact that he did not, does not detract
from his unrebutted testimony and findings made at the time the order
issued.
Size of Business and Effect ef Penalty Assessment on the Respondent's
Ability to Remain in Business
The parties have stipulated that the respondent is a large coal
mine operator and that any civil penalty assessed by me in this matter
will not. adversely affect its, ability to remain in business, .and I
adopt these stipulations as ·my findings in this regard.
Good Faith Comphance
The inspector's conclusion that the respondent demonstrated lack
of good faith in abating the conditions cited is rejected. In support of his conclusion in this regard, the inspector testified that
100 roof-support timbers had to be set to abate the conditions cited
and that due to a mine foremen's "strike" or work stoppage, adequate
personnel were not available to do the work. However, it is clear
that the 100 timbers were, in fact, required to support not only the
areas cited, but the additional areas which concerned the inspector
and which the respondent was required to abate before he would terminate the order. Thus, it is clear that substantial work had to be
performed before termination of the order occurred. As for the work
stoppage by the foremen, while these individuals are part of mine
management, there is no evidence that the work stoppage was, in fact,
condoned by the mine superintendent or that it took place for the
purpose of avoiding compliance. That work stoppage apparently took
place because the foremen believed MSHA's enforcement practices with
respect to the issuance of unwarrantable failure violations were
unjustified and reflected on what they perceived was an attack on
their job performance. Aside from the merits of that controversy, I
take note of the fact that the work ~toppage subsequently resulted
in a meeting with local MSHA district enforcement officials for the
purpose of discussing the matter' further and there is no evidence
that the respondent subsequently failed to make a diligent effort to
comply. Given the circumstances presented, I cannot conclude that
the time taken to abate (2 days) was untimely or an indication of a
lack of good faith. The affected area was closed by the order and

15

the inspector himself recognized that no men were available to do the
work and he did not specifically fix any time for abatement since his
order effectively closed down the area where excessive widths were
being driven. Further, while the respondent could have taken the
position that it was only required to install enough additional roof
support to abate ~he specific areas cited by the order, it did, in
fact, install all of the additional roof support as required by the
inspector in the other areas which concerned him and it obviously did
so to terminate the order so that production could resume. In view of
the totality of the circumstances which prevailed at the time in question, I conclude and find that the respondent exercised normal compliance once the order issued and should not be pena.lized further by
adopting petitioner's suggestion that it exhibited a lack of good
faith in abating the conditions once the order issued.
Negligence
Respondent's suggestion that the wide areas cited resulted from
"duck nests 11 created by the machine operator and that the respondent
cannot be held accountable for this practice, is rejected. As indicated earlier, the inspector took into consideration the existence of
duck nests, but h~ specifically stated that the measurements he made
were of the wide e'ntries and crosscuts. Further, he specifically
stated that the mining widths are controlled underground by the face
boss marking the required widths of the cuts and that in the event the
cutting machine operator is wide of those marks, it is the responsibility of the face boss to take corrective action on the scene to
insure that the areas are cut as marked and in accordance with the
roof-control plan. I agree with these observations by the inspector
and I find and conclude that on the day in question, the wide areas
cited were caused by the failure of the cutting machine operator to
cut within the areas apparently marked out by the face boss and that
with a little more attention on his part, the conditions cited could
have been prevented. Respondent admitted that the conditions cited
were, in part, caused by poor mining practices and resulted from
"likely errors" on the part of the machine operator. In the circumstances, I find that the violation cited resulted from the respondent 1 s failure to exercise reasonable care to prevent or correct the
conditions which it knew or should have known existed and that this
failure on its part constitutes ordinary negligence. I find nothing
in the record to support any conclusion that respondent recklessly
and deliberately caused the conditions cited.
Gravity
Respondent's proposed finding that the violation cited was nonserious is rejected. The inspector was in the mine on the day his
order issued for the purpose of investigating a roof fall which had
occurred in an area where the mining width was approximately 18 feet.
He was concerned over the fact that the cutting of entries and crosscuts at widths.more than that called for by the roof-control plan
16

would, over a period of time, likely weaken the roof and cause
another possible roof fall, unless additional roof support was
installed in those areas. Considering all of the wide places which
he found during his inspection, I cannot disagree with the inspector's conclusions in this regard. Although it is true that the roof
areas in question were bolted in accordance with the roof-control
plan, the fact is that the inspector testified the roof sounded
drummy and he believed additional support was required to compensate
for the wide areas cited. In the circumstances, the failure of the
respondent to follow its roof-control plan by cutting wide entries
and the failure to install additional roof support was serious and
presented a potential for additional roof falls in the cited areas.
I find that the violation was serious.
History of Prio~ Violations
Petitioner introduced a computer printout of the prior history of
violations pertaining to the Sinclair No. 2 Mine (Exh. P-6). That
history reflects a total of 145 paid violations for that mine during
the period January 1, 1970, to April 4, 1977. During that same period
of time, the history for the operator/controller tKennecott Copper
Corporation) reflects a total of 857 paid violations.
Respondent contends that at the time the order issued on
October 18, 1977, the history of violations attributable to the
respondent should be "zero" since on July 1, 1977, the corporate
stock of Peabody Coal Company had been sold by Kennecott Copper
Corporation, the prior owner, to Peabody Holding Company, the present
owner. Respondent points to the fact that the mine was previously
owned by the Kennecott Copper Corporation and that the ownership
period, as reflected on the face of the printout, ended on June 30,
1977. At the time of the violation in question, respondent argues
that the Peabody Holding Company (PHC), and not Kennecott, was the
controlling company, and that petitioner has introduced no evidence
respecting the prior history of violations attributable to PHC,
Since petitioner has listed.. only those violations attributable to
Peabody Coal Company when it was owned by Kennecott, and since MSHA's
Office of Assessments recognized the fact when a mine is sold to a
new operator, that new operator starts out with a "clean slate" (Tr.
251), respondent asserts that petitioner is now estopped from arguing
the contrary. Further, respondent argues that significant management
changes were made in Peabody Coal Company after the sale of that company by Kennecott to PHC on July 1, 1977, including most directors,
many officers, the president, and the chief executive officer, and
that such changes were doubtlessly deemed to be an improvement over
the prior management arrangement. In the circumstances, respondent
argues that the prior history, as reflected in the printout, should
not be considered as part of its prior history of violations, insofar
as any assessment of the instant vio.lation is concerned, and any
penalty assessed must reflect a "zero" history.
17

Petitioner points out that since the effective date of the 1969
Act until July 1, 1977, the corporate stock .of the Peabody Coal Company was owned by Kennecott Copper Corporation. On July 1, 1977, the
corporate stock of the Peabody Coal Company was sold to Peabody Holding Company, which became the new owner of the Peabody Coal Company
since the holding company, in fact, became the new owner of the
corporate stock of the Peabody Coal Company. Peabody Coal Company is
a wholly-owned subsidiary of the holding company and is its only asset.
Petitioner argues that while corporate stock changes owners, the
liability of the corporation remains constant and intact. Here, petitioner argues that the mine was not, in fact, sold to a new operator,
only the corporate stock was sold, and Peabody Coal Company and its
assets remained intact.
After full consideration of the arguments presented, I conclude
and find that on the basis of the record here presented, petitioner
has the better part of. the argument, and its proposed finding on this
issue is adopted as my finding, and respondent's arguments to the
contary are rejec~ed. I find that the prior history of the Peabody
Coal Company, as r~flected in the printout, and n,ptwithstanding the
transfer of stock, ~ay be considered by me in assessing a civil pen. alty in this matter. While respondent alluded to certain management
changes at the uppermost levels of the holding company, the fact is
that there is no evidence that mine management has undergone any
changes, that the holding company is, in fact, the present owner of
Peabody Coal Company, that the company is, in fact, its sole asset,
and that there has been a continuity of operation of the mine in
question, and that the only change has been in the sale of stock.
While it may be true that MSHA's Assessment Office considered that
. an actual change in mine ownership had taken place, I am not bound by
that fact, and based on previous proceedings involving the manner in
which the Assessment Office evaluates any given citation at any given
time, I doubt whether that office made other than a cursory evaluation
of the question.
On the facts presented in this proceeding, I find that the prior
history of violations with respect to the mine in question, when
viewed in light of the size of Peabody's total coal mining operations,
does not constitute a significant prior history of violations, and
that fact is reflected in the penalty assessed by me in this matter.
The same can be said for the prior history of Kennecott's overall
total history as reflected in the printout. For an operation of its
size, I cannot conclude that the 145 paid violations over a period in
excess of 6 years for the mine, or the 857 violations over that same
period for the size of Kennecott's mining operations can be said to
be significant.
Fact of Violation--30 CFR 75.1400
The pertinent part of the mandatory safety standard cited in
Order No. 1 PML (7-166) on December 30, 1977, reads: "[W]here persons

18

are transported into, or out of a coal mine by hoists, a qualified
hoisting engineer shall b.e on duty while any person is underground,

* * *·"
Petitioner's Arguments
Regarding the hoist violation, petitioner concedes that due to a
nationwide mine strike, only management and supervisory personnel were
working at the mine. Although there was an emergency drop cage hoist
in the intake shaft which requires an engineer on the surface to operrate it, petitioner argues that the slope hoist, located in the
designated escapeway, is the only other means of entering and exiting the mine, and that persons normally ride into and out of the mine
to change shifts by use of that hoist, and· it is also used to get
miners and supplies underground. The hoist is operated by a cable on
a hoist drum; the cable attaches to an automatic brake and other cars,
and the cars are dropped down into the slope or pulled up out of the
slope to the mine portal. The cars are on a track, and normally two
cars, including the brake car, can convey 30 to 40 persons in each car
into and out of the mine. The hoist does not have an automatically
operated cage, platform or elevator, and normally there is a qualified
hoistman in the house 24 hours a day when coal is being produced, or
the normal maintenance shift is employed. The cars were on the surface when the inspector made his inspection, and injured persons have
been taken out of the mine by being hauled up the slope by the hoist
and car.
Although it is true that the men who were underground may have
walked down the slope in the mine, the slope was wet, muddy and icy,
and an injured person could not be carried out on a stretcher without riding on the cars with the use of the hoist. Regarding the man
who was supposedly 11 on duty," petitioner points out that it took the
foreman an hour to get to the surface once he was called from underground, and the other man lived 5 or 6 miles from the mine. As for
the definition of the term."hoist, 11 petitioner cites the definitions
of that term as used in Webster's Dictionary and 5ulletin 95, A
Glossary of the Mining and Mineral Industry, and points out that the
mechanics of the hoist device in question qualifies it as a hoist as
that term has always been considered in the mining industry. Further,
the fact that a vertical cage or bucket is not involved is immaterial
argues petitioner, since the standard language "other such equipment"
includes the hoist device in question.
Finally, petitioner argues that the fact that persons went underground without the use of the hoist, does not matter since persons
are transported underground in the mine by the hoist and while anyone is underground, a hoist engineer must be on duty, and the slope
must be available as long as anyone is in the mine.

Respondent's Arguments
Respondent argues that on the day the citation issued, due to a
strike, no union personnel were in the mine, but three management personnel were underground. These three individuals walked into and out
of the mine without using a device usually employed for transporting
men and material into and out of the mine, namely, a track-mounted
car or set of cars to which is attached a cable with the other end
of the cable attached to a drum on the mine surface. Respondent
asserts that this device is used principally for the haulage of
materials and supplies, although it is also used to transport men
during normal production shifts, and the hoisting engineer is usually
a union employee. The mine slope entrance descends some 730 feet at
a slope of some 16 degrees and has handrails and a walkway to facilitate walking iu"to and out of the mine. Since the legislative history
of section 314(a) of the 1969 Act, the statutory counterpart of section 75.1400, intended the standard to apply only where men are regularly transported in and out of the mine by hoist, respondent submits
that persons were not being transported into or out of the mine with
any degree of reg:µlarity be'cause the third shift customarily walked
into and out of the mine without the use of the personnel transport
device as they did on the day in question. Thus, as to the third
shift, particularly during the strike, respondent asserts that the
hoist was not customarily or regularly used for the transportation
of personnel. Since persons were not being transported into or
out of the mine on the third shift with any degree of regularity,
respondent maintains that no violation occurred.
Finally, respondent argues that the term "hoist" is not further
defined and that Congress intended section 75.1400 to apply to those
instances in which a hoist is the sole or principal means of entering
and exiting a mine, and that since the s'tandard speaks of 11 hoisthand~ing platforms, cages, and elevators," respondent submits that
the type of hoist to which Congress was addressing itself is a
device designed to lift persons in a more or less vertical fashion
from the depths of a coal mine. Also, since the device in question
was not in use, the mine was not one "where persons are transported
into or out of a coal mine'~ by a hoist, because the word "where" connotes more than merely location and may be used to indicate the situation or circumstances to which relates the remainder of the clause
in which 'the word "where" is used. And, respondent asserts that it
has steadfastly maintained that the last sentence in section 75.1400
refers to situations in which persons are transported into or out of
a mine, rather than a location at which persons are sometimes transported into or out of the mine. Further, since the evidence shows
that a qualified engineer was on the surface and near the "hoisthouse11 and since a qualified hoisting engineer, who is on a 24-hour
call, was only 6 minutes from the mine at the time the order issued,
respondent maintains that a qualified hoisting engineer was "on duty"

20

within the meaning of section 75.1400, and respondent cites the testimony of the inspector who considered a man to be "on duty" when he
is 5 or 6 minutes from the hoist house.
It is clear from the evidence adduced in this proceeding that
the hoisting device in question is, under normal circumtances, used
to transport men and materials underground. In such circumstances,
it is also clear to me that section 75.1400 requires that a qualified hoisting engineer be on duty while anyone is underground. On
the facts presented in the instant case, it is clear that on the day
in question, the three management individuals went underground by
walking down the slope incline and the hoist was not used because
the mine was idle due to a strike. Aside from the requirement in
section 75,1704-l(b), which provides that escape shafts include
elevators, hoists, cranes, or other such equipment, and that they
be manned by an attendant during coal-producing or maintenance
shifts, I find nothing in section 75.1400 that requires a mine operator to use any hoisting device to transport men or supplies underground. Nor do I find anything in that standard which requires an
operator to install such a hoist or to have it available for the
transportation of men to the surface in the event of emergencies.
Except for a drop cage hoist in the intake shaft, which is used
in emergencies and requires an engineer on the surface to operate,
the slope in question is the only means of entering and exiting the
mine. Petitioner's proposed interpretation of section 75.1400, if
accepted, would require an operator to maintain the slope hoisting
device in question operational at all times when miners are underground. Thus, if an operator decides to close the device or car
trips down for maintenance, and the men walk in and out of the mine
for any given shift while the device is inoperative, petitioner
seemingly would require a qualified hoisting engineer to be on duty.
In my view, such a result is not only illogical, but I can find no
authority in any mandatory standard for such a requirement. Here,
the evidence establishes that the slope in question was an escapeway and was so designated on the mine map. In the circumstances,
since petitioner's arguments in support of its interpretation of the
standard focus on the fact that the lack of a qualified engineer
would not permit the expeditious removal of a miner in the event of
an emergency, it seems to me that the inspector should have cited
sections 75.1704 or 75.1704-1 which req~ire that escapeway slopes
be maintained in safe condition to allow quick escape of miners in
the event of emergencies, and that an attendant be on the surface
in a position to hear or see a signal for the use of the hoist and
who be readily available to operate it.
After careful consideration of the arguments presented, including the facts and evidence adduced in this proceeding, I conclude
that respondent's proposed interpretation and application of section 75.1400 is correct and petitioner's arguments and proposed
21.

interpretation and application are rejected. I find that the
critical·phrase "where persons are transported into, or out of a
coal mine by hoists, a qualified hoisting engineer shall be on duty
while any person is underground, * * *" as applied to the facts of
this case, refers to the circumstances in which persons are transported into or out of a mine, rather than the location at which
such transportat~on is had. Under the circumstances, since the
management personnel in question were not transported underground
by means of the hoisting device in question, I conclude that section 75.1400 is inapplicable and that petitioner has failed to
establish a violation.
It is clear from the citation issued by Inspector Lyle that he
was concerned over the fact that no one was on the surface to attend
the hoist while persons were underground in the event an emergency
should arise to withdraw such persons from underground, and petitioner's proposed interpretation and application of the cited stan-·
dard is consistent with the language of the order. However, as
concluded above, I believe the standard is inapplicable to the facts
presented, and that the inspector should have cited sections 75.1704
or 75.1704-l(b)~ If petitioner believes those sections are inapplicable, then it should consider promulgating a safety standard to
cover circumstances such as those presented in this case.
With respect to the question of whether the device used to transport men in and out of the mine was,· in fact, a ''hoist" within tbe
meaning of section 75.1400, 1 conclude that it was, and I adopt petitioner's proposed findings and conclusions as the basis for this
conclusion. The fact that the device was not a platform, cage, or
elevator, and did not move in a vertical fashion, is immaterial as
correctly argued by the petitioner. The mechanics and workings of the
transportation device in question, including the definitions cited by
the petitioner, including the phrase "or other devices used to transport persons" support petitioner's position on this issue. However,
since I have found the cited section to be inapplicable, this issue
is moot.
In view of the foregoing, I conclude and find that the cited
standard is inapplicable to the conditions cited by the inspector,
and that the petitioner has failed to establish a violation of section 75.1400. Accordingly, the petition for assessment of civil penalty, insofar as it seeks a civil penalty assessment for the section
104(c:)(2) order, Citation No. 7-0166, December 30, 1977, is dismissed.
Penalty Assessment and Order
In view of my findings and con~lusions made with respect to the
section 104(c)(2) order issued October 18, 1977, Citation No. 7-0127,
I find that a civil penalty in the amount of $4,000 is appropriate in

22

the circumstances presented, and respondent is ordered to pay that
amount within thirty (30) days of the date of this decision.

t

/~/!.if~
Administrative Law Judge

Distribution:
John H. O'Donnell, Trial Attorney, Office of the Solicitor,
MSHA, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Thomas F. Linn, Esquire, P.O. Box 235, 301 North Memorial Drive,
St. Louis, MO 63166 (Certified Mail)
Standard Distribution

23

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

March 27, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.. Civil Penalty Proceeding
'

Docket No. DENV 78-569-PM(A)
A.O. No. 10-00089-05002

v.
SUNSHINE MINING COMPANY,
Respondent

Sunshine Mine

DECISION AND ORDER
Appearances:

Joseph Walsh, Trial Attorney, Department of Labor,
Office of the Solicitor, Arlington, Virginia, for
the petitioner;
Piatt Hull, Esquire, Wallace, Idaho, for the
respondent.

Before:

Judge Kennedy

On March 21, 1979, the captioned matter came on for an
evidentiary hearing in Spokane, Washington. After carefully
reviewing and considering the testimony and documentary evidence,
the Presiding Judge found that the Secretary had failed to
establish by a preponderance of the evidence that:
1.

On the night shift on April 11 or the day shift
on April 10, the operator endangered the safety
of the miners by any lack of diligence or due care
in the furnishing of ground support on the hanging
wall of the 5215 Stope.

2~

That the violation .. of 30 C.F .R. § 57 .3-22 charged
did not, therefore, occur.

Accordingly, it was ordered that the petition for assessment of a
civil penalty be dismissed with prejudice.

The premises considered, it is ORDERED that the bench decision
and order of March 21, 1979, _be, and hereby are, CONFIRMED and that
the imminent danger closure order 347008 issued April 12., 1978 be,
and hereby is, VACATED.

Issued:

March 27, 1979

Distribution:
Piatt Hull, Esq., Hull and Hull Chartered, P.O. Box 709, Wallace,
ID 83873 (Certified Mail)
Joseph Walsh, Trial\Attorney, Office of the Solicitor, U.S. Department of Labor, 401.S Wilson Blvd., Arlington, VA 22203

2

FEDERAL MINE SAFETY AND HEALTH REVl.EW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
40.15 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

March 27, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. DENV 78-568-PM(A)
A.O. No: 10-0089-05003

v.

SUNSHINE MINING COMPANY,

Sunshine Mine

Respondent
DECISION AND ORDER
Appearances:

Joseph Walsh, Trial Attorney, Department of Labor,
Office of the Solicitor, Arlington, Virginia, for
the petitioner;
Piatt Hull, Esquire, Wallace, Idaho, for the
respondent.

Before:

Judge Kennedy

On March 21, 1979, the captioned matter came on for an
evidentiary hearing in Spokane, Washington. After hearing the
witnesses and considering the documentary evidence the Presiding
Judge rendered a bench decision in which he concluded that on the
basis of a preponderance of the credible evidence:
1.

The ground on the hanging wall in the J-8 Stope was
loose and inadequately supported on the afternoon of
April 6, 1978, a violation of the mandatory safety standard
set forth in 30 C.F.R. § 57.3-22.

2.

That the violation was extremely serious in that it
posed a real and potential danger to life and limb.

3.

That the condition was one that was known to the operator
based on the imputed knowleQge of Mr. Rudd, the Production
Foreman responsible for the J-8 Stope.

4.

That Mr. Rudd's failure to correct the condition was
the result of a high degree of ordinary negligence_.

Thereafter and after considering the other statutory criteria, including the fact that this was first offense, the Judge determined
that the amount of the penalty warranted and that best calculated
to deter future violations and ensure voluntary compliance was
$5,000.00. It was ordered, therefore, that for the violation found
the Sunshine Mining Company pay a penalty of $5,000.00 within ten
(10) days.
The premises considered, it is ORDERED that the bench decision
and order of March 21, 1979, be, and hereby are, CONFIRMED and that
respondent pay a penalty of $5,000.00 on r before Saturday, March 31,
1979.

Judge
Issued:

March 27, \.{.979

Distribution:
Piatt Hull, Esq., Hull and Hull Chartered, P.O. Box 709, Wallace,
ID 83873 (Certified Mail)
Joseph Walsh, Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203

2

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD

ARLINGTON, VIRGIN IA 22203

MAR 2 8 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
·Petitioner
v.
FLORIDA CRUSHED STONE CO.,
Respondent

Civil Penalty Proceedings
Docket No. BARB 78-648-PM
A.C. No. 08-00024-05001
Docket No. BARB 78-649-PM
A.C. No. 08-00024-05002
Brooksville Gay Quarry

DECISION
Appearances:

Leo J. McGinn, Esq., Office of the Solicitor, Department of Labor, for Petitioner;
Mary L. Applegate, Esq., Holland & Knight, Tampa,
Florida, for Respondent.

Before:

Administrative Law Judge Michels

The above-captioned civil penalty proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a). The Mine Safety and Health Administration
(MSHA) filed petitions for the assessment of civil penalties on
August 24, 1978, alleging that the Respondent committed certain violations of Chapter 30 of the Code of Federal Regulations. On
September 27, 1978, Respondent filed its answers contesting the violations. A hearing was held in Tampa, Florida, on February 6, 1979,
at which both sides were represented by counsel. The two dockets
were consolidated for the purpose of hearing and decision (Tr. 81).
At the beginning of the hearing, MSHA counsel requested approval
of settlements for the full assessed amounts for Citation Nos. 092811,
alleging a violation of 30 CFR 56.14-1 assessed at $140; 092815,
alleging a violation of 30 CFR 56.12-8 assessed at $106; and 092827,
allegi~g a violation of 30 CFR 56.6-42, assessed at $66.
These citations are all in Docket No. BARB 78-648-PM. MSHA counsel asserted
that in light of the statutory criteria and the factu.al circumstances
involved in these three citations, he felt such settlements were appropriate (Tr. 6). Respondent's counsel concurred with this assessment
(Tr. 7). After reviewing the oral representations by both parties,
the settlements were approved by the.undersigned. Accordingly, I
hereby AFFIRM my approval of those settlements.

Follo.wing this, both parties presented evidence regarding the
eight citations which alleged violations of 30 CFR s·6. 9-87 (Tr. 21,
44, 53, 61, 68, 78, 88, 91). This regulation requires mobile heav)rduty equipment must be provided with audible warning devices. On
the basis of the evidence presented, and in light of the statutory
criteria, a decision was made from the bench to assess Citation Nos.
092808, 092809, 092820, 092824, 092825 in Docket No. BARB 78-648-PM;
and Citation Nos. 092829 and 092830 in Docket No. BARB 78-649-PM at
$100 each. Citation No. 092818 in BARB 78-648-PM was assessed for
$200.
The following finding.s of fact were made as to each citation:
1)

There was, in fact, a violation as admitted;

2)

The operator is at least medium or medium-to-large in size;

3) The penalties assessed would not affect the operator's
ability to continue in business;
4)

There is no h~story of previous violations;
\

5) The operator took steps to rapidly comply after notification
of the violation;
6)

The operator was negligent;

7)

The violation was serious.

(Tr. 115-119). The decision finding eight violations of 30 CFR
56.9-87 and assessing a total penalty for these violations of $900
is hereby AFFIRMED.
After issuing a decision from the bench on the eight violations
of 30 CFR 56.9-87, as discussed above, MSHA counsel advised that the
parties had negotiated a settlement of the remaining citations
involved in these proceedings for the full amounts of the original
assessments (Tr. 121). Since t.here had been no unwarranted lowering
of the proposed penalties, and such a disposition assured adequate
protection of the public interest, this settlement was accepted.
Accordingly, I hereby AFFIRM these additional settlements for the
amount of $2,236.
In summary, the amount of $3,176 has been assessed for Docket
No. BARB 78-648-PM and $272 has been assessed for Docket No. BARB
78-649-PM.
2

It is ORDERED that Respondent, within 30 days of the date of
this decision, pay the total penalties of $3,448 assessed in these
proceedings.

cfa.~dlut/~
Franklin P. Michels
Administrative La~ Judge

Distribution:
Leo J. McGinn, Esq., MSHA Trials Branch, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington,
VA 22203
Mary Applegate, Holland & Knight, P.O. Box 1288, Exchange
National Bank Building, Tampa, FL 33601 (Certified Mai°l)

3

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

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

Civil Penalty Proceeding
Docket No. DENV 77-79-P
A/O No. 05-02820-02004

v.
Maxwell Mine
C F & I STEEL CORPORATION,
Respondent
STAY ORDER
The effective date of my decision in the above-case is hereby
STAYED pending a ruling on a motion for reconsideration.

~C:2:~/Q'

Administrative Law Judge
Entered:

March 29, 1979

Distribution:
Leo J. McGinn, Esq., MSHA, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Richard L. Fanyo, Esq., Welborn. Dufford, Cook & Brown,
1100 United Bank Center, Denver, CO 80290 (Certified Mail)
Administrator
of Labor

for Caal Mine Safety and Health, U.S. Department

Standard Distribution

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

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

Application for Review of
Discrimination
Docket No. PITT 78-458

On behalf of:
DAVID PASULA,
Complainant
v.

Montour No. 10 Mine

CONSOLIDATION COAL COMPANY,
Respondent
STAY ORDER
The effective date of my decision in the above case is hereby
STAYED pending a ruling on a motion for reconsideration.

~e:&~/~
Charles C. Moore, Jr.
Administrative Law Judge
Entered:

March 29, 1979

Distribution:
Eddie Jenkins, Esq., MSHA, Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Anthony J, Polito, Esq., Rose, Schmidt, Dixon, Hasley, Whyte &
Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified Mail)
Alan B. Mollohan, Esq., Rose, Schmidt, Dixon, Hasley, Whyte &
Hardesty, 818 Connecficut Avenue, NW., Washington, D.C. 20006 (Certified
Mail)
Kenneth J. Yablonski, Esq., 505 Washington Trust Building,
Washington, PA 15301 (Certified Mail),

•

\\

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

March 29, 1979

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

C.ivil Penalty Proceeding
Docket No .. VINC 79-67-P
A.O .. No .. 12~00336-02007F
Squaw Creek Mine

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Robert A. Cohen, Trial Attorney, Department of Labor,
Office of the Solicitor, Arlington, Virginia, for
the petitioner;
Thomas F. Linn, Esq .. , St .. Louis, Missouri, for the
resp,ondent.

Before:

Judge Koutras
Statement of the Proceedings

This proceeding concerns a petition for assessment of civil
penalty filed by the petitioner against the respondent on
November 30, 1978, pursuant to section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 u. s . c.. § 820(a), charging tne
respondent with two alleged mine safety violations issued pursuartt
to the 1969 Federal Coal Mine Health and Safety Act. Respondent
filed a timelyanswer in the proceeding, asserted several factual
and legal defenses, and a hearing was held in Evansville, Indiana,
on January 31,1979. The parties filed proposed findings and conclusions and a brief, and the arguments contained therein have been
considered by me in the course of this decision ..
Issues
The principal issues presented in these proceedings are (1)
whether respondent has violated the provisions of the Act and
implementing regulations as alleged in the petition for assessment
of civil penalty filed in these proceedings, and, if so, (2) the
appropriate civil penalties that should be assessed against the

respondent for each 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 c.ontinue in business, (5} the gravity of the vioation, 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
The· ·Federal Coal Mine ··Health and· Safety Act of -1969,
30 u.s.c. § 801 ~ ~·, now the Federal Mine Safety and Health Act
of 1977, P.L. 95-164, effective March 9, 1978.
1.

§§

2. Section.$, 109(a)(l) and (a)(3} of the 1969 Act, 30 u.s.c.
819(a)(l) and (a)(3), now section llO(i) of the 1977 Act.

_Stipulations
The parties stipulated to the following (Tr. 4-5}:
1.

The jurisdiction of the presiding Judge.

2. Respondent is a large coal mine operator and any civil penalty imposed will not affect its abi~ity to remain in.business.
3. During the period in question in this proceeding, the Squaw
Creek Mine employed approximately 220 miners and daily coal production was 5,000 tons.
Discussion
The alleged violations and applicable mandatory safety standards
in issue in this proceeding are as follows:
Notice 104(b) 1 FCW, April 20, 1977, issued by mine inspector
Fred c. Wheatley, alleges a violation of 30 CFR 77.1710(g) and states
as follows:
A fatal fall of person accident occurred at 9 p.m.,
April 19, 1977. The victim was performing repair work on
a 5 ton capacity overhead hoist in the Model 1360 Bucyrus
Erie dragline at pit ID 001 while standing on top of drag
2

drive gear housing where no work platform was provided·
approximately 16 feet above the floor level. No safety
belt and line or other safety devices were being used.
The notice was modified on April 27, 1977, as follows:
A review of the circumstances surrounding the violation described in 104(b) notice of violation No. 1 FCW
dated April 20, 1977, indicates the violation occurred
because of unwarrantable failure on the part of the
operator. Therefore Notice No. 1. FCW dated April 20,
1977, is hereby modified as being issued under 104(c)(l)
instead of 104(b).
The notice was terminated on April 28, 1977, and the termination
notice states:
.. company· safety rule No •. 105(:i) requiring safety belts
and lines be used as designed has been amended to require
safety belts and lines anytime when an employee is performing duties when working in an elevated position where a
work platform is not provided, and has been distributed
to all employees and posted in conspicuous locations
throughout the mine.
30 CFR 77.1710(g) provides as follows:
Each employee working in a surface coal mine or in
the surface work areas of an underground coal mine shall
be required to wear protective clothing and devices as
indicated below:

*

*

*

*

*

*

*

(g) Safety belts and lines where there is danger of
falling; a second person shall tend the lifeline whe~
bins, tanks, or other dangerous areas are entered.
Notice 104(c)(l) 2 FCW, April 20, 1977, issued by Federal mine
inspector Fred C. Wheatley, cited a violation of 30 CFR 77.1708, and
states as follows:
A workman was fatally injureq when he fell approximately 16 feet from the top of the gear case of the drag
drum gear on the Model 1360 Bucyrus Erie dragline at the
Pit ID 001. The victim was performing repair work on a
five ton capacity overhead hoist where no work platform
was provided and a safety belt and line or other devices
to protection [sic] a person from falling was being used.
The operator's program of instructions with respect to safe
3

procedures to be followed was not thorough in that the
safety rules only required that safety belts and lanyards
be worn as designated. The designated areas were not
defined and the safety program with respect to safety
regulations and procedures to be followed at the mine was
not posted in conspicuous locations throughout the mine.
Mine management was informed of the provisions of section
77.1708 Title 30 Code of Federal Regulations and the necessity of a means to protect a person from falling where performing work from elevated positions where a safe work
platfonn is not provided and the necessity to include a
safe job procedure in the program of instructions with
respect to safe job procedures on June 16, 1977.
The notice was modified on April 21, 1977, to correct the date
shown on the continuation to the notice (June 14, 1977) to read
June 16, l21§_.
The notice was again modified on April 27, 1977, to reflect that
it was being issued as a section 104(b) notice rather than a 104(c)(l)
notice on the ground that a review of the circumstances surrounding
the notice inQicates the violation did not occur because of an unwarrantable failrire by the operator.
The abatement time was extended on April 28, 1977, and the reasons given for the extension are as follows:
The operator has amended the job safety rules to
require all employees to use safety belts and lines when
performing work from an elevated position. Copies of the
amendment has [sic] been distributed to all employees and
posted in conspicuous locations throughout the mine. A job
safety program has been developed for performing work from
an elevated position and has been posted at conspicuous
locations throughout the mine. Said notice is hereby
extended to allow time to monitor the training program to
determine if the training program is adequate to satisfy
the requirements of section 77.1708.
The notice was terminated on June 1, 1977, and the termination
notice states that the company safety rules were modified to require
all persons to.use safety devices when there is a'danger of falling.
The modified safety rules were posted at conspicuous locations, and
safety meetings were held with employees with regard to the use of
such safety devices.
30 CFR 77.1708 provides as follows:
On or before September JO, 1971, each operator of a
surface coal mine shall establish and maintain a program

4

of instruction with respect to the safety regulations and
procedures to be followed at the mine and shall publish
and distribute to each employee, and post in conspicuous
places throughout the mine, all such safety regulations·
and procedures established in accordance with the provisions of this section.
·
Testimony Adduced by the Petitioner
MSHA inspector Fred c. Wheatley testified be went to the mine on
April 19, 1977, to assist in the fatal accident report. The mine in
question is a surface mining operation where the coal is exposed by
removing the overburden for the purpose of loading and processing the
coal by use of a large shovel and dragline. He examined the accident
scene and everything was normal except for a portion of the overhead
hoisting equipment which had been damaged and the overhead hoist was
positioned over a large gear case. From information provided by
people who were·in·a·positioi:l'to kriow, 'it was determined that the·
victim fell from the bull gear housing or cover, and he was positioned
on the top of the housing approximately 16 feet from the main floor
of the machine with another workman who was assisting him in making
repairs to the h~ist. Mr. Wheatley identified Exhibit P-3 as a sketch
of the area where\the victim was standing, and indicated that he
climbed up to the area and took the measurements depicted on a sketch,
Exhibit P-4. From statements of eyewitnesses, the victim was in the
process of making repairs to the overhead hoist assembly that had been
damaged at the time he fell. The victim was not utilizing a safety
belt or any other safety device to prevent falling. There were no
handrails or platforms in the innnediate area (Tr. 8-19).
Mr. Wheatley testified that from information received during his
investigation it was determined that the victim had previously been
up on the gear box without using a safety belt and that a supervisor
stated that he climbed up on the gear housing with two workman to
assess the hoist damage and that.they did not use safety belts or
other safety devices. Mr. Wheatley was not able to determine whether
mine management ever informed the victim that he had to wear a safety
belt when proceeding to the top of the gear housing, and nothing was
available to indicate that the victim had ever been instructed at any
time to use a safety belt with a line attached. In his opinion, a
safety belt with a line attached could have been utlized by the
victim while performing his work and there was a place to attach a
line to a safety belt" directly overhea,d at the hoisting assembly
which is installed on a track or rail. He also determined that the
area from where the victim fell was an area where there was a danger
of falling and from the 6-foot height of the year case, its shape,
and the configuration of the machine, it was obvious that there was
a danger of falling. While there was room for someone to place his
feet to stand, the area was inadequate, in terms of size and shape,
and the work being performed, for a pla~form (Tr. 19-25).

5

Inspector Wheatley testified that safety belts were located on
the dragliqe. and they were located on the main machine deck or floor
in a steel drum, he examined the belts and all but one were packed
in the original packaging, and it did not appear that any of them had
been used. He determined that the victim was an experienced miner
and had been assigned to the machine in question for 4 to 5 weeks as
the second shift operator. Repair work on the machine would be part
of his normal duties but he did not know if the operator would generally work without direct supervision. After completing his physical
investigation at the accident scene, an accident investigation hearing was held on April 20, and subsequent to that, he decided to issue
the violations in question (Tr. 25-28).
The respondent had a safety program in effect at the time of the
accident, Exhibit P-7, and safety belts are mentioned and item 105,
page 5, of the company safety rules provides that "safety belts and
lanyards shall be worn as designated. 11 However, he was unable to find·
anY' areas or machines where the. requirement for safety belts were
.
specifically designated as areas where safety belts would be required.
In his view, the safety rule is inadequate for the purpose of informing a miner where safety belts must be worn because the lack of designations is no reai requirement that belts be used. From statements
made during his i~yestigation, he could only find one person who
stated that the use of safety belts with lanyards attached was discussed and this was in the case of a recently employed person during
orientation. Experienced miners told him they had not been required
to use belts and lines in installing the hoist that was damaged and
being repaired at the time of the accident. The victims' immediate
supervisor suggested a need for caution, but issued no instructions
as to the use of safety belts arid that the caution may have come not
more than 3 hours before th·e accident occurred. On one previous
occasion, an employee working on the construction of a coal hopper
fell and was injured and the matter was discussed with mine management and a violation of section 1710(g) was issued and this occurred
in June 1976. The use of a belt. could have greatly reduced the
severity of the accident fatality which occurred in the instant case

(Tr. 28-42).
Mr. Wheatley identified Exhibit P-8 as a statement of the operator1 s policy regarding the use of safety belts published after the
accident and he believes it makes it clearer. The safety program had
been published in the form of a company safety rule book and a safety
manual distributed to supervisory employees. He could find no posting
of the company's safety program in conspicuous locations du~ing his
'investigation. He could find no evidence that the accident victim
had been instructed in the use of a safety belt either shortly before
the accident or at any time (Tr. 43-46).
On cross-examination, Mr. Wheatley testified that he had seen the
company safety rule book (Exh. P-7) prior to the accident. Conflicts
6

in.the Federal safety regulations and company.safety rules are
resolved in favor of the Federal regulations and they are cbnJ;rolling,
and the company safety rules incorporate applicable Federal a'nd state
safety laws by reference. He denied that he was informed that the words
"as designated"
used in safety rule 105(i) referred to "as designated
by federal regulations." In his view, a violation of section 1710(g)
occurs when a man is not wearing a safety belt where there is a danger
of falling, and this is true regardless of whether the company
requires the use of safety belts where there is a danger of falling
(Tr. 47-57).
The question of whether or not there is a danger of falling
depends on the particular location in any given situation, and in
some situations, this may be at a height of 2 feet. It would also
depend on how sure the footing is in a par.ticular area, whether there
is a firm hand hold, or whether grease, mud or ice are present, but
other safety regulations cover those situations (Tr. 57-59).
Mr. Wheatley confirmed that he climbed on the gear housing during
his investigation, got all the way to the top and was wearing a safety
belt with no difficulty. There was a small amount of grease on the
housing but it ~~s not a contributing factor. The machine was in
transit at the time of the accident and was not being used to dig coal
(Tr. 63). While in transit, the machine became bogged down in loose
fill and was shut down in order to construct additional firm footing,
and in the process of coming out of the fill area, the crane broke
loose from its mooring (Tr. 66).
Inspector Wheatley confirmed that the section 77.1710(g) violation was originally issued as a section 104(b) citation, but subsequently modified to show it was issued pursuant to section 104(c)(l)
as an unwarrantable failure, and that the section 77.1708 violation
was initially issued as a section 104(1)(1) notice, but subsequently
modified to show it was issued pursuant to section i04(b) (~r. 74-78).
Inspector Wheatley testified that he measured the distance of
the fall and was assisted in this task by Mr. Thomas Beulow, an
engineer, and possibly by Mr. Alan Cook, respondent's employee. Prior
to his fall, Mr. Woods and his crew were engaged in repairing the
hoist, but he could not recall whether Mr. Woods was instructed not
to perform any work on the hoist and to leave it alone •. The master
mechanic and foreman were not present when Mr. Woods fell. When he
(Wheatley) climbed to the top of the.housing he observed a sledgehannner and one or two other tools there. Mr. Woods' location prior
to his fall was established through interviews with witnesses, and the
information he received indicated that a foreman and another worker
had climbed up on the gear housing without safety belts shortly prior
to the accident for the purpose of assessing the damage to the hoist
and no work was performed at that time (Tr. 79-92).

7

Mr. Wheatley stated that the side opposite the one from which
Mr. Wood~ fell had a guardrail for a portion of the way, and he did
not require that a platform be constructed on the hazard as part of
the abatement. He issued the section 77.1708 violation because the
safety belt rule was not thorough and the mine safety. regulations and
procedures were not_posted in conspicuous locations throughout the
mine. The words "as designated" as used in the safety belt rule is
not complete because of the lack of designations. He did not know
that mine management had taken the position that the words "as designated" referred to the Federal regulations. With respect to the
posting of the safety rules, he checked the bulletin boards near the
changehouse, the one in the office, and the one in the shop, but he
was not sure about others~ He was looking for something that would
suffice as a safety program, and simply posting the yellow company
safety rule book would not suffice to meet the requirements of section 77.1708. However, he would have to conduct further research
to determine what would suffice at the particular mine in question
(Tr. 93-110).
.
Mr. Wheatley identified Exhibit R-10 as a booklet containing the
Federal standards and the company rules. The booklet is customarily
posted on the m~ne bulletin boards, but he was unable to find it
posted on the three bulletin boards be examined. He could not recall
examining the bulletin board on two case loading machines, or the ~ones
at the tipple, the 7W dragline, the 191 shovel, or the 5760 shovel.
He did recall examining other bulletin boar.ds, but could not recall
which ones. Although he inspected the dragline during its erection,
he did not do so prior to the accident while it was being moved (Tr.
113-121).
Inspector Wheatley testified that he had some knowledge of the
safety contact program at the mine but was not familiar with the use
of exception reports (Tr. 123).
On redirect, Mr. Wheatley identified the accid.ent report of
investigation which was· prepared and the cause of the accident is
shown as "a failure of management to require workman to wear safety
belts where there is a danger of falling" (Exh. P-10; Tr. 131). He
testified that circumstances such as the work position, type of
terrain· or objects below, and the configuration of the general area
would be considered in determining whether there is a danger of
falling in any given instance. He does not believe that MSHA policy
dictates that he designate mine areas• where there is a danger of
f alliag and he has never requested mine management to put up signs
designating such areas (Tr. 132-134).
In response to questions from the bench, Mr. Wheatley stated that
it was never determined why Mr. Woods was not wearing a safety belt,
but he believed he would have worn one had he been specifically
instructed to do so. The work P.latform that was constructed at the
8

point from which Mr. Woods fell was subsequently constructed to
facilitate the repairs on the hoist and ~here is no safety re~uire
ment for such a platform at that location. He attached a safety
line at several places while climbing the housing during his
investigation, but could not recall precisely where he attached it
(Tr. 145-149).
William Yockey, mine safety connnitteeman and president of UMWA
Local 1189, testified that at the time of the accident he was not
aware of any mine area which was posted as requiring the use of
safety belts. With regard to the posting of a company safety program,
he indicated that there are times when none were posted on bulletin
boards, but they could have been posted on one or two boards. He has
observed a safety book posted in the shop and on the shovel where he
worked. There are 19 or 20· bulletin boards, but he could not say
whether one was posted on all of them. Sometimes people will remove
them from the boards or they may blow away •. He has observed men
working in elevated areas at the mine without safety belts. He
discussed the use of safety belts with the mine safety superintendent
for the purpose of clarifying how they were to be used, but prior to
that time no one ever specifically showed him how to use one (Tr.
156-161).
Mr. Yockey stated that a safety belt was available to Mr. Woods,
but he believed that use of the belts was not .emphasized enough at
the mine. One supervisor might specifically designate someone t6
wear a belt while another one would not. If he were told to wear a
belt he would do so, but if no one told him to wear it he would not.
He could not recall any specific training that he received with
respect to the use of safety belts, and indicated that a belt is not
a complicated piece of equipment. However, there have been some
questions as to whether the lanyard should be hooked on the front or
back of the belt. He has been directed by mine fo:i;-emen to use belts.
As for the other men, some are afraid to climb and others are not and
the use of a safety belt varies among these individuals (Tr. 162-166).
On cross-examination,· Mr. Yockey testified that in any particular
situation the question of whether or not a danger of falling exists
depends on a number of different factors. He considered Mr. Woods to
be a very safe worker with some 30 years' service. He surmised that
Mr. Woods did not wear a belt because he was the type of person who
did his job when it needed to be done, and as an experienced operator
he needed little supervision, but would do what he was told (Tr. 167169).
Mr. Yockey stated that no one ever told him not to wear a safety
belt. He has received instructions on the Part 77 surface mining
regulations. He has· obs.erved a safety book, Exhibit P-10, p~sted on
three bulletin boards, and a safety-book, Exhibit P-7, on some of the
boards, but not all of them. Most of the boards are open, and he has
reviewed posted material (Tr. 170-172).
9

In response to bench questions, Mr. Yockey stated that he has
worked in elevated areas while repairing a boom without using a safety
belt, and he has observed others working on elevated cranes, and
haulage trucks which are 20 to 25 feet above ground, without using
such belts. He personally does not like to wear a safety belt because
it gets in hj.s way while he is working. However, if instructed to do
so, he would wear a belt. He does not believe it practical or
feasible to designate every elevated area in a mining operation where
a belt should be worn. He recalled two occasions· where a foreman or
master mechanic instructed him to wear a belt. During the time that
he worked with Mr. Woods, he (Woods) wore a safety belt when making
repairs on the shovel. He was not at the mine when the accident
occurred (Tr. 176-183).
Mr. Yockey stated that there are occasions where common sense
dictates that a safety belt be worn and he does not have to be told
(Tr. 184).
Charles E. Stilwell, second shift dragline oiler, was working
with Mr. Woods on the day of the accident and he was standing
directly across from him on the gear housing when he fell. He was
not wearing a ~afety belt and was not specifically instructed to
wear one. Had\he been so instructed, he would have worn one. He,
Mr. Woods, and foreman Bob Siegel were on the gear housing earlier
in the shift and were not wearing safety belts. Mr. Siegel did tell
them to be careful. He had been up a third time with an electrician.
He and Mr. Woods generally made repairs on the dragline and it was
part of their job. On the day of the accident, Mr. Siegel told them
that he was going to get the mechanic who would instruct them what to
do, but he could not remember Mr. Siegel telling them not to go up on
the housing. Mr. Woods asked him to go up and he did. He never wore
a belt en the dragline because he was never at any place where he
thought he needed one. Since the accident, he wears one if instructed
to do so (Tr. 186-193).
On cross-examination, Mr. Stilwell detailed the movements of
the dragline prior to the accident. During the _movement of the
machine, the 30-ton hoist came loose from the hoist cables and a
5-ton hoist electrical box became dislodged and was hanging over
the machine. The machine was then shut down in "order to. assess the
damage. One of the foremen then advised the crew to 11 let it go," and
then the master mechanic arrived on the scene and instructed the crew
to install a grease line on the machine. While preparing to do· this,
Mr. Woods was just finishing tying a rope on the five-ton hoist by
himself in order to move it. Foreman Siegel arrived on the scene and
assisted in moving the hoist, and then left to get the electricians
and master mechanic Jim Binkley. Mr. Siegel informed _the crew that
the mechanic would instruct them what to do when he arrived and asked
them to "be careful. 11 Mr. Woods insisted on climbing up on the housing
to try and straighten it out and Mr. Stilwell suggested they wait for

10

the mechanic. However, he decided to go with Mr. Woods since
Mr. Woods was the leadman. Mr. Woods climbed up on the gear hoU'sing
by means of a ladder on the front of the machine and he and Mr+ Woods
were using a torch while working on the gear housing and they were
there about 10 minutes before Mr. Woods fell. Mr. Stilwell identified Exhibit R-1 as a sketch 'of the scene where he and Mr. Woods were
positioned prior to the fall. While he and Mr. Woods were on the gear
housing they used two or three handholds located on the inspection
covers in climbing up to the housing. During the three times that he
climbed the housing, he did not believe he was in danger of falling,
and at no time was he instructed by the company to make repairs on
the hoist. Mr. Siegel told them that the mechanic would instruct
them further when he arrived at the scene and he believed that they
were to leave the machine alone until he arrived, but Mr. Woods
overruled him (Tr. 194-207).
Mr. Stilwell testified that when he and Mr •. WoQds.were o.n the
machine, the footing was secure and he was wearing. goggles •. Safety
belts were provided on the machine and Mr. Woods must have known they
were there. Mr. Woods was a safe hard worker. During the three
times he was on the gear housing, he never considered using a safety
belt because he did not feel uneasy. He has received miner training,
has attended periodic safety meetings with the foremen, and has
observed a safety book posted on the bulletin board in the tipple and
preparation plant. A company safety book was also stored in the
electrical room of the No. 1360 dragline on the day of the accident
and he believes that the dragline operator and the groundman knew it
was there. He receives safety contact training as part of the company
annual training program and believes that he receives as much training
as miners from other companies (Tr. 208-217). He was aware of the
company practice of writing up employees for safety infractions and
as far as he knows neither he nor Mr. Woods have ever been cited by
the company for violating safety rules (Tr. 217-222).
Donald E. Allen, assistant superintendent, Broken Arrow Mine,
testified he was at the Squaw Creek Mine on the day of the accident
on April 18, 1977, where he was employed as assistant superintendent
as a supervisor on the 1360 dragline. He described the movement of
the dragline on April 18, and indicated that it first became bogged
down in loose fill material and then broke a cable on the overhead
hoist. His job was to get the machine into production and to
acquaint the crew with dragline stripping procedures since they
were all shovelmen. After the cable broke, he discussed the situation with Mr. Stilwell, Mr. Siegel,. and Mr. Woods and he instructed
Mr. Stilwell to tie off the hoist and leave it because he was not
concerned with it. Four or five safety belts were on the machine at
the time of the accident (Tr. 236-247).
Robert W. Siegel, pit foreman, Squaw Creek Mine, described the
movement of the dragline on the day of the accident and the damage
11

which occurred to the machine while it was in transit. He advised
Mr. Stilwell and Mr. Woods that he was going to get an electrician
to deenergize the machine and they proceeded with their regular
cleanup duties while he was gone. He and Mr. Woods then climbed up
on the gear case to visually inspect the crane. As he climbed up,
he felt they had good handholds and good footing. He did not feel
there was a danger of falling when he mounted the gear case. He then
left the area and returned and told Mr. Woods that he would summon
the master mechanic to look at the machine, and that nothing else
needed to be done. After finding master mechanic Binkley, he advised
him to check out the machine to determine any needed repairs. He
subsequently learned about the accident (Tr. 248-258).
Mr. Siegel testified that he was unaware that Mr. Woods and
Mr, Stilwell were using a torch and hammer to attempt to make
repairs on the crane until after the accident. When he mounted the
gear case to inspect the damaged hoist, he saw no mud or grease that
would interfere with his footing and he felt secure in his footing
and it did not occur to him to use a safety belt because he felt he
had adequate footing and handholds to reach the area. Safety belts
were available on the· machine and were stored some 10 to 15 feet from
the gear case.\ There were four to six belts and Mr. Woods knew where
they were locat~d. The ba.rrel where the belts were stored was
labeled, and Mr. Woods was familiar with the use of the belts (Tr.
258-260).
Mr. Siegel testified that he partipates in the company safety
program through personal safety contacts, safety meetings, and exception and observation reports of the employees. Safety contacts
consist of a foreman personally contacting employees on a safety
topic, and safety meetings involve written materials which are read
to the men concerning accidents or new programs. He obtains safety
literature from the safety department for use at the meetings and
records are kept of the meetings and contacts. He identified Exhibit
R-2 a~ a supervisor's safety contact book used by all supervisors
and he explained the use of the books. If he finds that an employee
has engaged in an unsafe work practice or has violated a safety rule
on Federal regulation he files a safety observation and exception
report. Repeat violations may result in disciplinary action against
the employee and he identified Exhibit R-3 as the report form. He
made a safety contact with Mr. Woods on April 18, 1977, and discussed
footing and slips and falls with him. Previously, he had four other
safety contacts with Mr. Woods and other employees. He has told
employees to use a safety belt and has found an employee not using
one when he should have. In that instance, he instructed the
employee to get his safety belt and wear it. He has also advised
employees at safety meetings and daily contacts that safety belts
should be used where there is a danger of falling (Tr. 260-268).
Mr. Siegel testified that Mr. Allen instructed Mr. Woods to
proceed with cleanup, and maintenance and repair on the machine

12

grease line and not to worry about the crane. The use of the torch,
hammer, and pry bar by Mr. Woods in his efforts to make repair were
contrary to instructions (Tr. 270).
On cross-examination, Mr. Siegel stated that Mr. Woods and

Mr. Stilwell engaged in an unauthorized act in climbing up on the
machine but Mr. Stilwell was not disciplined. However, they generally engaged in repair work as part of their duties. He was not
aware that they were up on the gear housing prior to April 18. When
they climbed up on April 18, he advised them to be careful as they
climbed up and he did not believe they were in danger while standing on top of the gear housing. Had there been work done there he
probably would have required men to use safety belts. However, he
would have performed no work there until the whole situation was
evaluated. He has written up employees for failing to wear safety
belts but could not recall the last time he did that (Tr. 270-282).
Mr. 'Siegel stated that: the dragline crew was relatively new to
th~t equipment but were experienced miners.
He believes Mr. Woods
would have worn a safety belt had he been told to and the area from
which he fell was 'elevated. While on the gear housing, he could hold
on to the hoist itself and the side of the gear case. While up on
the housing, they were holding on to the crane and he could stand
without holding onto anything (Tr. 283).
In response to questions from the bench, Mr. Siegel testified
that the practice of each man determining whether to use a safety
belt in a given situation is a good practice because they have to
use common sense to protect themselves and a supervisqr cannot be
there every minute to tell them to use a belt (Tr. 288).
Mr. Siegel stated that procedures involving the use of safety
belts has not changed since the accident although the memorandum of
instruction has been modified. Occasional safety talks on safety
belts are held, but prior to the accident, no specific safety talks
on safety belts were conducted at the mine (Tr. 292).
Robert E. Thomas, safety manager, Indiana Division, testified he
·has responsibility for safety over nine of respondent's mining operations, including supervision over the mine safety supervisors. His
responsibilities include enforcement of Federal safety laws, company
safety rules, safety training and orien,tation, safety management
program, and accident investigations. Safety management includes
safety observations, safety meetings, safety contacts, and exception
reports. He partipated in the accident investigation and identified
several photographs of the scene (Tr. 295-300).
Mr. Thomas testified that the company has a program of instructions concerning safety regulations and procedures used at the mine
at the time of the accident. The foremen conduct training sessions

13

concerning safety standards and the program is audited and evaluated
each month, and he meets with the mine superintendents to discuss the
evaluations. Each new employee partipates in a safety orientation
program and in an 8-hour retraining program. Annual retraining is
required by the union wage agreement of 1974, and he described the
15 safety topics covered, which include instructions in Federal laws
and regulations. He identified Exhibit R-7 as the safety management
program manual used by the foremen in their safety training, safety
contacts; and safety exception report program. Each foreman is
required to have a 10-minute safety meeting each week, and daily
safety contacts when they are assigned a job. Mass safety meetings
are held prior to and after vacation periods and holdings. He also
sends copies of accident reports to the mines to be used by supervisors and foremen in their safety discussions with the men. Special
training is al~o conducted for welders, and all of the programs are
constantly monitored. Safety topics have included the use of safety
belts and lanyards when working at heights. Safety memos are posted
on bulletin b?ards or,.used.at: meetings with.th.e ..men ('1,'r.; 300-314).
Mr. Thomas described the safety exception program. At the time
of the accident\~ employees were required to use safety belts and lines
where there was\a danger of falling, and it was enforced through
training topics such as Exhibit R-8, and employees who violated the
requirement would be subject to an exception report and warned, and
they could be dismissed. Safety rule lOS(i), set out in Exhibit R-9,
is the safety belt requirement. Rule lOO(a) incorporates applicable
State and Federal laws as a part of the company's safety rules, but
they are not reproduced. Although he could not recall specifically
telling anyone to wear a safety belt, he has discussed it with men
on the job sites. Safety rules and Federal regulations are posted
at the mine on the bulletin boards. They are usually posted on the
boards at the shop and garage area, the washhouse, the preparation
plants, large machines, and in places where there are large groups
of people, including parking lots and different job sites. Items
posted include memorandums, safety topics, accident reports, safety
directives, safety books, etc. The materials are available for
inspection by anyone and it is difficult to keep the documents on
the bulletin boards (Tr. 315-321).
Mr. Thomas testified he saw Inspector Wheatley during the accident investigation and observed him climbing the gear housing, and
with the safety belt and lines, he had ~ problem climbing and does
not remember seeing him climb all the way to the top (Tr. 322-324).
On cross-examination, Mr. Thomas stated that the company conducted an accident investigation and prepared a written report. He
developed the report and although the report states that the accident
was caused by the failure to use a safety belt and lanyard, he disagrees with the statement. He does not know why Mr. Woods fell. Had
he worn his belt, it could have prevented the accident. Aside from

14

the accident, the area from which Mr. Woods fell is not normally
considered an area where there is a danger of falling since it is
easy to get to and the housing casing is 18 inches wide. He believed
that very few people would realize that someone could fall from the
housing while performing work there. He knows of no mining guidelines
to determine potential fall areas on heavy equipment. There has been
one previous accident involving a construction supervisor who was
injured in 1975 while working at a height at the preparation plant
and he was not wearing a safety belt. He received a letter from MSHA
reemphasizing the use of safety belts and he solicited it because of
a disagreement concerning an accident where an employee fell some
10 to 12 inches while washing down a bulldozer radiator. MSHA issued
a citation, but it was subsequently vac.ated when it was learned where
the man was actually standin~ (Tr. 329-339).
Mr. Thomas stated that there are a few areas in some of the
respondent 1 s mines where signs are posted. requiring that .. s_afety belts
·be worn, i.e., sometimes on the drill mast. He is not aware of any
specific company guidelines on when safety belts should be worn (Tr.
339-343).
In response to 'l>ench questions concerning a photograph of mine
employee Cook standing on the gear housing (Exh. R-5) without a
safety belt, Mr. Thomas stated that it is within Mr. Cook's discretion whether to wear a safety belt (Tr. 351). He believes that no
one recognized the hazard at the time Mr. Woods fell (Tr. 353).
Alan W. Cook, assistant safety manager, Indiana Division, testified that his duties are similar to those of Mr. Thomas, with a
particular emphasis on training, and he conducts and implements
company safety programs. He was at the mine on the day of the accident for the purpose of conducting the accident·investigation. He
climbed the gear housing to assist inspector Wheatley in making his
measurements, and he identified Exhibit R-5 as a photograph showing
him on the housing. 'Mr. Wheatley did not tell him to wear a safety
belt while standing on the housing, but later in the afternoon told
him that no one was to go up on the hoist drum unless they use a
safety belt and a lanyard. He observed Mr. Wheatley climb up the
gear case and he was experiencing difficulty in tying off the line
as he climbed up. He did not see him on top of the drum, however·
(Tr. 368-373).

.

Mr. Cook stated that after the violation was written, he and
M_r. Wheatley checked two bulletin boards in the office and shower
room although there were others on the min~ premises. The boards
normally contain safety rules and procedures. When he mounted the
gear housing, he did not believe there was a danger of falling. He
described the materials normally posted on mine bulletin boards, and
he usually personally checks the boards (Tr. 375-379).

15

Mr. Cook identified two file boxes containing employee contact
and exception reports filed since the program began in 1973. The
files are kept at the Squaw Creek Mine and each mine has similar
files. The files contain some 1,500 sheets of safety contacts, and
approximately 1,800 more exception and observation reports. These
records are maintained as part of the safety management program and
accident prevention program. He identified safety contacts made with
Mr. Woods and Mr. Stilwell (Exh. R-12). Safety contacts are a
regular program at the mine. He also identified Exhibit R-13 as a
record of safety training received by Mr. Woods in 1976. He personally has told employees to wear safety belts. He also identified
Exhibit R-14, indicating that Mr. Woods received
copy of the company
safety rules on January 23, 1973, and Exhibit R-15 as safety observations conducted on Mr. Woods prior to the accident, and it contains
no notations of any unsafe acts on his part (Tr. 380-400).

a

Mr. Cook testified that there were possibly six safety belts
located on the dragline in question in a barrell labeled "safety
belts 11 (Tr. 401), · He. testified as to· company policy concerning the
use of exception reports (Tr. 405-407).
On cross-exa~ination, Mr. Cook testified that he did not know
whether a bulletin 'board was located on the dragline and he saw no
safety manuals posted there on the day of the accident (Tr. 408).
He did not know whether Mr. Woods received specific training on the
use of safety belts (Tr. 412).
In response to bench questions, Mr. Cook stated that if he had
to climb the gear housing, the question as to whether he would wear a
safety belt would possibly depend on the kind of work he had to do
(Tr. 420). The repairs made to the gear housing the day of the accident were unusual and it is not a place from which work is normally
done (Tr. 425).
Inspector Wheatley was recalled by the court and stated that
after listening to all of the testimony, he would still take the same
action that he took when he issued the citations in question, given
the circumstances available to him at the time. Some of the material
introduced by the respondent during the hearing is new to him and' some
·he had little knowledge of and the company safety programs was never
brought to his attention. He examined the bulletin boards on April 20
and he saw nothing which indicated the posting of a safety program
(Tr. 428-430). ·He did not attempt to l~cate all mine bulletin boards.
He checked only the change room, office, and the shop and observed
none of the materials there (Tr. 433).
Findings and Conclusions
Fact of Violation--30 CFR 77.1710(g)
Petitioner asserts that while it could be argued that section
77.1710(g) provides little guidance for an operator to determine if

16

there is a danger of falling, thus requiring the use of safety belts,
the regulation is capable of enforcement under the factual situation
preserited in this case. In support of its position, petitionerargues that the use of an 18-inch wide narrow area elevate.d 16 feet
above the dragline floor as a work area, created a condition where
there was a danger of falling. Placed in a tenuous position on top
of the dragline gear housing without the proper means of support
from a work platform or by using a safety, would place a worker in
obvious danger of falling, argues petitioner.
Petitioner points to the fact that respondent's Foreman Siegel
indicated that he would have required the use of safety belts if he
knew that work was being performed on top of the gear housing, and
that respondent.' s accident report indicates that the use of safety
belts should have been required. Petitioner takes the position that
if safety belts are, in fact, . required to be worn, the type of
activity .a w.orker is engaged in, should. be. irrelevant. Since a
worker, such as the accident victim in this case, could change his
work activity in a very short period of time, ~._a., 1 minute, he
could be merely observing the damaged overhead hoist and the next
minute. he could be. attempting to repair it if safety belts are
required then they.should be worn on all occasions when a worker is
exposed to high elevations.
Petitioner asserts that the obvious intent of section 77.1710(g)
is to require miners to wear safety belts and that the failure of a·
miner to wear his belt when required, is, per se, a violation, notwithstanding my prior decision to the ·contrary in Peabody Coal Com~' DENV 77-77-P, decided August 30, 1978, a decision which petitioner avers merely shifts the burden of the miners' protection to·
the individual employees and. away from the mine operator.
Petitioner argues that the testimony in the instant case clearly
establishes that respondent never actually required the use of safety
belts as a uniform policy and that there was no attempt to enforce
the requirements of section 77.1710(g) on the date of the accident.
Further, petitioner asserts that the accident victim's attempts to
repair the overhead hoist were not outside the scope of his responsib{ li ties as the dragline operator, that repair work on the dragline
was part of his normal duties, and he was never actually directed to
stay off the gear housing by management. As a matter of fact,
asserts petitioner, since
Mr. Woods and his foreman
had' been up on
.
.
the gear housing previously without wearing safety belts, it was only
natural for him to assume that no safety belts would be required if
he had occasion to go up on top of the gear housing for a second
time to perform repair work.

.

With regard to respondent's general enforcement of safety belt
requirements at the mine, petitioner cites the testimony of UMWA
Local 1189 President William Yockey, who testified that it would

17

depend on the particular foreman who happened to be enforcing the
policy, and that when required to do so by mine management, he
would wear a belt. Also cited is the testimony of Mr. Stillwell,
the dragline helper, who testified that Mr. Woods would have worn
a safety belt if he was directed to do so by management. Therefore,
argues petitioner, .Mr. Woods' failure to use a safety belt cannot be
considered as intentionally disregarding company policy, because
there was no company policy requiring their use.
Respondent argues that the record supports a finding that it
required the use of safety belts where there is a danger of falling,
and that the rule regarding the wearing of belts was implemented
through teaching and training methods and was subject to discipline
for those employees failing to comply, and clearly identified safety
belts were available on the dragline. Respondent cites the testimony
of UMWA President Yockey who indicated that he does not generally
wear a. saf~ty be.lt pecause he believes..it inter.feres with his .welfare,
th~t: 'it'iS not always practical to require the wearing of such belts
when someone is working in an elevated position, but that he will
wear such a belt if instructed by a foreman and required to do so.
Respondent atgues that section 77.1710(g), by its specific terms,
does not state thai the operator is guilty of a violation if an
employee does not wear a safety belt when he is required to do so,
and that the question of when to or not to wear a belt is a matter
of individual common sense and judgment. Citing North American Coal
Corporation, 3 IBMA 93 (1974), and my previous decision in MSHA v.
Peabody Coal Company, DENV 77-77-P, August 30, 1978, applying the
North American ruling, respondent argues that it has complied with
the requirements of section 77.1710(g) by providing safety belts,
instructing the employees in their use, and requiring them to wear
the belts when working in elevated areas. Further, respondent argues
that two additional factors emphasize its lack of responsibility for
the violation, namely, the fact that Mr. Woods was acting outside the
scope of his instructions, and secondly, except for Inspector Wheatley,
it was the opinion of the witnesses that a safety belt was not necessary under the circumstances of this case •
. Respondent 1 s safety rule regarding the use of belts and lanyards
is contained in a 1972 company publication (Exh. R-9). Rule 105(i)
at page 6 of that publication, states as follows: "Safety belts and
lanyards shall be worn as designated." .
Rule lOO(a) provides that applicable state and Federal laws are
incorporated by reference as part of the company's safety rules, and
subsection (d) provides that since it is impractical to include rules
to meet all contingencies in emergencies not provided for in the
rules, employees are required to act under the advice and direction
of their supervisor.

18

It is clear that at the time the citation issued, respon'dent 1 s
safety belt and lanyard rule left much to the impgination and that
it was subject to several interpretations, several of which were
forthcoming during the course of the testimony adduced in. this case.
While it is true that respondent has an elaborate and comprehensive
safety program, replete with procedures, directives, pamphlets,
booklets, files, etc., etc., I quite frankly and candidly am at a
loss to understand why it failed to adopt a safety rule regarding the
use of safety belts and lanyards so as to make it absolutely clear and
understandable to a person of ordinary intelligence. Respondent's own
safety manager did not understand the language "as designated" (Tr.
317-318), and it is obvious from the arguments presented during the
hearing, that respondent obviously takes the position that since all
applicable Federal mine safety regulations were incorporated by reference in Peabody's safety rulebook, an employee was accountable for
understanding each and every regulation, including complying with the
same. Such an explanation and rationale in defense of the violation
is simply unacceptable. ·I. am of· the view that art operator, ·particularly one the size of Peabody Coal Company, with all of its resources,
should have takeµ the initiative to insure th~t its workforce clearly
understood its· pi:l.blished safety belt rule, Only after the fatality
occurred, did Peabody see fit to publish a company policy concerning
the use of safety belts (Exh. P-8). The memorandum of April 21, 1977,
issued a day after the accident, cites section 77.1710(g), company
safety rule 105(i), and directs each supervisor to contact each of
his employees and to read to him the following mine policy: "Any
time an employee is performing one's dutie~ in an elevated ~ork area
and where a work platform is not provided, a safety belt shall be worn
and a lanyard shall be utilized."
Respondent's arguments that Mr. Woods acted outside the scope of
his instructions and that in the opinion of several witnesses presented in its behalf, a safety belt was not necessary, are rejected
and cannot serve as a basis for absolving respondent from any responsibility for the violation. Having viewed the witnesses, listening
to their testimony, and viewing the photographs of the 18-inch wide
gear housing in question, elevated some 16 feet above the dragline
floor, I am convinced and I find that the area in question was, in
fact, an area where there was a danger of falling and that safety
belts or lines were required to be worn.
With regard to respondent's assertion that Mr. Woods was acting
outside the scope of his instructions, even if that were true, it does
not excuse the fact that he was not instructed to wear a belt while
on top of the gear housing. As pointed out by petitioner, Pit Foreman Siegel indicated that had he known that Mr. Woods was going to
perform work on top of the gear housing, he would have instructed him
to wear a belt. On the facts presented in this case,· I can only conclude that Mr. Siegel should have known from the situation presented
that it was likely that Mr. Woods would again climb up on the housing.

19

As a matter of fact, that is precisely what happened in this case, not
only once, but at least twice.
While it may be true that Mr. Siegel cautioned the men to "be
careful," he did not specifically instruct or caution them with
respect to the use of safety belts. Since it is clear that the foreman and the men had earlier climbed atop the gear housing to inspect
the damage without wearing safety belts, the foreman should have known
that it was likely that the men would again climb up to effect repairs
and he should be specifically instructed them to use the safety belts
provided. Although Mr. Siegel testified it did not occur to him to
use safety belts because he felt he had adequate footing and had used
handholds to reach the area atop the gear housing, it is clear to me,
as indicated above, that an 18-inch wide area atop the gear housing
where men are standing and working, is an area where safety belts
should be required to be worn.
-~1th9ugh

the.re is. merit tQ respondent IS .Suggestion that the .ques-.
tion of ·~hen to or when not to wear a safety belt, is a matter of individual common sense and judgment, that proposition assumes that ~11
individuals working at the mine are endowed with those attributes, and
based on the fact th.at persons have been known to be killed or seriously injured by fai'ling to wear safety belts or lines, I can only
conclude that a mine operator must be held accountable and responsible
to some deg~ee for the protection of those who lack common sense and
good judgment. This can only be accomplished by forceful and mean- ,
ingful safety belt and lanyard rules, policies, training programs, and
procedures. On the basis of the evidence adduced in this proceeding,
I cannot conclude that respondent's program in this regard was adequate, nor can I conclude that respondent's requirements with respect
to the use of safety belts was clearly articulated to all employees
or emphasized or enforced with due diligence, and my reasons in this
regard fol low.
\

Mr. Yockey testified that there is no consistency with respect to
the company safety belt rule, and that one supervisor may designate
someone to wear a belt, while another would not. He candidly admitted
that he would wear a belt only if told to by his supervisor, and he
indicated that some men wear belts and others do not. The decision as
to whether a belt should be worn is left to the individual employe.e,
As Mr. Yockey indicated, if the employee is not afraid to climb, he
does not wear a belt; if he fears climbing, he does. Mr. Yockey
observed individuals working on elevated cranes without wearing belts.
Mr. Stilwell, who was with Mr. Woods on top of the gear housing
when he fell, testified that he.was standing directly across from
Mr. Woods when he fell to his death and he was not wearing a safety
belt and was not instructed to wear one. He _had gone up on the gear
housing earlier with Mr. Woods and Foremen Siegel, and no belts were
worn by anyone. Since the accident, Mr. Stilwell wears a belt only
if specifically instructed to do so.

With regard to any specific training concerning the use of safety
belts, Mr. Yockey testified that aside from discussions as to how to
install a lanyard, he could recall no specific training in the use
of belts, although he did indicate that a belt is not a complicated
piece of equipment. Mr. Stilwell said nothing about any safety
training in the use of belts, and it is clear that he will only wear
one if specifically required to do so, notwithstanding the fact that
he witnessed one of his co-workers get killed by not wearing a belt.
Mr. Siegel said he probably would have instructed Mr. Woods and
Mr. Stilwell to wear belts had he known they were going to climb up
on the gear housing to perform work. However, he did not believe it
necessary to so instruct them when they all climbed up to inspect the
gear housing, even though he saw fit to caution them as they were
climbing up. He also endorsed the practice of permitting each
individual to decide for nimself when to wear a safety belt, and indicated that little has changed since the accident in question, and
while occasional safety talks on safety belts are hel9, prior to the
accident, no s.pe.cifie safety talks on the use of safety· belts were
conducted at the mine. Assistant Safety Manager Cook climbed on top
of the gear housing after the fatal accident to assist Inspector
Wheatley in taking certain measurements and he was not wearing a
safety belt (see Exhibit R-5, a picture of Mr. Cook on top of the
gear housing). He did not wear a belt because he did not believe he
was in danger of falling, but he also indicated that if he had to
climb up again, the question of whether he would wear a belt or not
would depend on the kind of work he had to perform.
Although Mr. Siegel and Safety Manager Thomas both alluded to
employee safety talks and exception reports, Mr. Siegel could not
recall t'he last time he had written up an employee for failing to
wear a safety belt, and Mr. Thomas could not recall specifically
telling anyone to wear a safety belt, although he stated he discussed it with men on the job sites. Mr. Thomas also indicated that
few mine areas are posted with signs advising as to the requirement
for using safety belts, and is unaware of any specific company guidelines concern~ng when safety belts should be worn.
Respondent cannot escape liability and accountability for the
failure of its employees to wear safety belts where the evidence
adduced indicates that it did not effectively and forcefully enforce
its safety rule in this regard, Respondent cannot fail to promulgate
a clear and concise safety rule regard~ng the use of safety belts,
fail to properly train and supervise its employees in their use, and
then hide behind its lack of knowledge concerning an employee's
_dangerous working practice. It seems to me that it should not be
a difficult task for mine management to identify those areas in a
mine where an employee is normally and regularly expected to perform certain job tasks and if that area is elevated to a degree
where there is danger of falling, a supervisor or foreman should see
to it t'hat an employee has and wears a safety belt. In this case,

21

while the dragline in question was equipped with safety belts stored
in a barrell and clearly labeled, three employees, including a foreman, climbed to the top of the gear housing, not once, but twice, to
inspect and then to perform work, and on neither instance did any of
them wear safety belts.
On the facts and evidence adduced in this proceeding, I find
that respondent has failed to establish that at the time the violation
issued, it had a clear and understandable safety requirement designed
to assure that all employees wear safety belts where there is a danger
of falling, and that it enforced such a requirement with due diligence.
To the contrary, I find that respondent's purported safety belt rule
as set forth in rule lOS(i) and as interpreted and applied at the mine
in question, failed to adequately inform an employee of the requirement for wearing safety belts where there is a danger of falling. I
also find that the practice of permitting each employee to decide for
himself when to wear a belt, coupled with somewhat inconsistent supervisory practices regarding the wearing of such belts and a lack of a
regular an.d consistent company policy in this regard, is· an indication
th~t respondent ~id not at that time, in fact, have a safety system
designed to assur~ that employees wear safety belts where there was
a danger of fallirtg. While respondent's overall safety program
seems adequate on paper, as attested to by·the voluminous exhibits
introduced in support of its position; I simply cannot find that its
safety program met the tests laid down in the North American Coal
Corporation case at the time the citation issued.
The prior Peabody case decided by me on August 30, 1978, concerned a driller helper who lost his balance while sta.nding on top
of a cable reel of a drill rig, and sustained multiple leg fractures
when he caught his leg between the cable and cable reel. The evidence adduced in that proceeding established that mine management
maintained a policy of requiring its employees to wear safety belts
and that the policy was enforced with due diligence. Further, the
evidence established that Peabody established and conducted training
and instructional programs for its employees with regard to the use
of safety belts, and had taken disciplinary action a·gainst employees
for violations of company policy regarding the use of such belts.
The evidence also established that the employee who was injured.as
a result of failing to wear a belt which was provided him, received
such instructions and was aware of company policy regarding t~e use
of safety belts. Further, it was established that the supervisor
was some 3-1/2.miles from the accident scene when the man was
injured, that when last observed by the supervisor the drill rig
was operating properly, and there was no indication that repairs
were needed or that a supervisor was required to be at the rig or
had reason to know that the driller belper was on the rig without a
safety belt.
I find that the facts presented in this case are distinguishable
from those presented in the prior Peabody case which I decided, and

22

I believe it is clear from the discussion above with respect to my
findings and conclusions concerning this matter, that respondent cannot avail itself of the North American decision, nor my interpretation and application of that decision in the prio! Peabody case as·
a defense to the instant citation of section 77.1710(g). I find
that petitioner has established a violation of section 77.1710(g) as
charged, and respondent's arguments to the contrary are rejected.
Size of Business and the Effect of the Penalty on Respondent's Ab{lity
to Continue in Business
The parties stipulated that respondent is a large coal mine operator and that any 'Civil"penalty.assessed by me in this matter will not.
adversely affect its ability to continue in business, and the stipulation is adopted as my finding in this regard. ·
History of Prior Violations
Altnough petitioner does not discuss respondent's prior history
of violations in its posthearing brief, it did sub~it ~ computer
printout for the Squaw Creek Mine reflecting a total of 45 paid violations for the petiod April 18, 1975, to April 18, 1977. One prior
violation of section 77.7110(g) is noted as being issued in a section
104(b) notice of July 28, 1975, for which an assessment of $94 was
made. In the circumstances, based on the evidence presented, I cannot conclude that the prior history for the mine in question is significant and warrants any increased civil penalty.
Negligence
Petitioner submits that the violati~n was caused by respondent's
negligence and I agree. While the record in this case indicates that
Mr. Woods was an experienced and conscientious worker with a good
safety record, there is no explanation as to what caused him to lose
his balance and fall to his death, nor is there any explanation as to
why he would climb to the top of the gear housing without using a
safety belt which was provided. One witness speculated that he did
so to "get the job done," and he also stated that Mr. Woods climbed
to the top of the gear housing contrary to instructions to "leave it
alone" because he was concerned and conscientious and wanted to see
what could be done to repair the damaged equipment. However, it is
also clear that the foreman should have anticipated that Mr. Woods
and Mr. Stilwell would again climb to the gear housing, since they
had done so earlier and did not wear belts, although the foreman did
caution the crew to be careful. In the circumstances, I find that
the record supports a finding that respondent failed to exercise
reasonable care to prevent the violation in that its supervisory
personnel should have specifically advised Mr. Woods to wear a belt
which was provided on the dragline while he was on top of the gear
housing. Its failure to do so, coupled with the failure of mine
23

manag~ment

to promulgate a clear and concise safety rule pertaining to
the requirements for the use of safety belts, constitutes ordinary
negligence ..
Good Faith Compliance
Respondent abated the violation by publishing a clear statement of company policy with regard to the wearing of safety belts,
instructing supervisory personnel to discuss the requirement with
mine employees. I find that respondent demonstrated good faith
compliance in abating the citation.
Gravity
It is clear from the evidence presented, that had Mr. Woods worn
a safe'ty belt, he probably would not have sustained fatal injuries.
Petitioner sugge.sts that th.e viol.;ition was seriol.ls, and. J; am in
ag.ree~~nt" ~ith that assessm~nt. In· the· circumstances here presented
where it is clear that .a safety belt could possibly have prevented
the fatality, I can only conclude and find that the violation was
serious.
Penalty Assessment
Petitioner recommends a civil penalty in the amount of $2,000 for
the violation of section 77.1710(g). Taking into account the fact
that safety belts were provided on the dragline in a clearly labeled
container, and given the fact that Mr. Woods may have been instructed
not to attempt further repairs on the machine, but did so anyway on
his own, petitioner's recommended penalty does not appear to be
unusually low. However, considering the fact that in this case,
several employees climbed to the top of the gear housing without wearing safety belts and stood on an 18-inch wide area in full view of a
foreman, and given the fact that I have found respondent's ·safety belt
requirement to be somewhat anemic, not only in terms of its being
clearly understood, but also in terms of inconsistent enforcement, I
believe that a more substantial penalty is warranted.· Accordingly,
respondent's recommended civil penalty is rejected, and I assess a
penalty of $3,500 for the violation.
Fact of Violation--30 CFR 77.1708
Petitioner asserts that while it has never contested the fact
that respondent has a written safety program which is distributed to
its employees, it was not in compliance with section 77.1708 on
April 20, 1977, when Inspector Wheatley checked the bulletin boards
since he looked on the bulletin boards in the change room, shop,
mine office, and on the dragline, but was unable to locate any evidence of a posted safety program. Further, petitioner submits that
respondent's safety rules (Exh. R-9) are totally inadequate for the
24

.purpose of informing its employees when safety belts must be worn.
Citing the language--"Safety belts and lanyards shall be worn as
designated"--petitioner asserts that this could indicate to employees
that belts need to be used only when specifically required either by
posted sign or by oral request from a f".'.'reman. Since all operators
must comply with the regulations as a minimum, petitioner asserts
further that the inadequacy of respondent's safety rules cannot be
corrected by merely adopting the Federal regulations.
Respondent asserts that petitioner has failed to establish a violation of section 77.1708, and that even petitioner's evidence supports a finding that respondent had a viable safety program and that
there was posting in numerous places of documentary safety procedures
and precautions. Respondent points to the testimony of UMWA Local 1198
President Yockey in support of its assertion that pamphlets and books
relating to safety procedures had, in fact, been posted, and that
~h:i,le all of 19 or 20 bulletin. boa.rds_ throughout. the mine. di~ . not
always 'have materials on them, miners would from time to time remove
materials for their own use. As to its safety program, respondent
asserts that it has established procedures for taking corrective
action against employees observed violating safety rules, that it had
held safety meeti~gs with employees, had posted its safety rules and
pamphlets, conducted safety contacts with its employees, reproduced
and distributed safety regulations and rules, training topics, memorandums, conducted safety audits and training, and, in fact, had a
comprehensive safety program with instructions, prosedures and
practices.
Respondent argues further that the evidence establishes that the
inspector conducted a most superficial investigation when he checked
only ~hree or four of the 19 or 20 mine bulletin boards and that he
admitted that the safety materials produced at the hearing were new
to him and that he had never seen them. Under the circumstances,
respondent argues that petitioner has failed to establish a violation
of section 77.1708.
Discussion
Inspector Wh~atley gave two reasons for citing a violation of
section 77.1708. He believed that respondent's safety rule regarding safety belts was not thorough, and he found that respondent •-s
safety rules and regulations were not ROSted in conspicuous locations
throughout the mine. In support of his citation for failure_to conspicuously post the safety rules, the inspector testified that he
checked the bulletin boards near the change house, the mine office,
and the shop. He was not sure about other bulletin boards and indicated that while he was looking for something that would suffice as
a safety program, simply posting a copy of the "yellow book" (respondent 1 s health and safety rules, Exh •. R-9) would not suffice to meet
the requirements of section 77.1708. When queried as to what would

25

suffice, he indicated that further research would be required at the
particular mine in question.
Section 77.1708 does not address itself to the qualitx of a mine
operator's safety program. The standard merely requires three things,
namely, the establishment and maintenance of a safety program, publi-.
cation of the program, including distribution to the employees, and
the posting of the program in conspicuous places throughout the mine.
Insofar as section 77.1708 is concerned, the fact that the inspector
did not believe the company safety rule pertaining to safety belts
to be thorough, is immaterial. If MSHA desires to monitor the quality
and adequacy of such training programs, it should promulgate
a specific standard covering that matter. Here, the standard cited
speaks to the establishment of a program and the posting and distribution of the program to mine employees.
On the facts and evidence adduced in this proceeding, it is clear
that respondent had-established afr elaborate safety and health train~
ing program, and the evidence and testimony produced on this question
attests to that fact. Petitioner concedes that respondent has a
written overall safe't;y program which was distributed to all employees,
and its evidence produced in support of the cited violation has not
convinced me otherwise. The thrust of petitioner's case is its assertion that on April 20, 1977, .the company safety program was not posted
on three or four mine bulletin boards examined by the inspector.
On the basis of the preponderance of the evidence adduced in this
proceeding, I conclude and find that petitioner has failed to establish
a violation of section 77.1708. Respondent piesented credible evidence
from its witnesses, including testimony by the president of the local
union who was called as petitioner's witness, indicating that there
are 19 to 20 bulletin boards scattered throughout the mine and that
safety materials and pamphlets were, in fact, posted on these boards
from time to time, but that some of the materials had been removed.
The fact that the inspector found three or four boards with no materials posted, is not persuasive, particularly in the circumstances
here presented where the inspector could not recall how many boards
he checked, and candidly admitted that he quite frankly did not know
what he was looking for in terms of a safety program. Here, respondent fully met the first two requirements of the standard cited since
the evidence supports a finding that it had established an.ongoing
safety program which had, in fact, been published and distributed to
employees. As for the conspicuous posting of the program throughout
the mine, I have found that petitioner has failed to establish that
this was not done and the basis for that finding is the cursory investigation conducted by the inspector covering three or four boards, ·
the fact that he was somewhat confused as to what he was looking for,
and the fact that respondent's evidence and testimony reflected that
safety materials were, in fact, posted on many, or at least more than
three or four bulletin boards.

26

ORDER
In view .of my findings and conclusions made with respect to·
Citation No. 7-0021, April 20, 1977, 30 CFR 77.1710(g), respondent
is ORDERED to pay a civil penalty in the amount of $3,500 within
thirty (30) days of the date of this decision. With regard to
Citation No. 7-0022, April 20, 1977, 30 CFR 77.1708, the petition
for assessment of civil penalty, insofar as it seeks a civil penalty
assessment for that alleged violation, is DISMISSED.

/dt/V!Jf

a,t /~~~

./~~e P/:'Kout'i'a's

Administrative Law Judge

Distribution:
Robert A. Cohen, Trial Attorney~ Office of the Solicitor, Mine
Safety and Health Administration, U.S. Department of Labor,
4015 Wilspn Boulevard, Arlington, VA 22203
Thomas F. Linn, Esq., Peabody Coal Company, 301 North Memorial
Drive, P.O. Box 235, St. Louis, MO 63166 (Certified Mail)
Standard Distribution

27

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

MAR 3 0 1979
..

Civil Penalty Proceeding

~ECRETARY

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

Docket No. DENY 78-576-P
02-01195-03003

v.

Kayenta Mine

PEABODY COAL CO.
Respondent
A.'1ENDED DECISION
On March 7, 1979, the Judge rendered a Decision approving
a settlement wherein a 20% assessment reduction was agreed to by
the parties. Petitioner's motion included specific settlement
figures for each violation.
On March 23'\ 1979, Petitioner moved to modify the Decision on
grounds that the digits were improperly transmitted by Petitioner.
As noted .in the Decision of March 7, 1979, a 20% reduction does not
shock the conscience, is within the bounds of reason and will
effectuate the deterrent purpose of civil penalties. The digits
in the Decision are hereby AMENDED as follows to properly reflect
the settlement of the parties:

30 CFR Standard

Assessment

Settlement

77. 509

$655.00

$524.00

6/08/78

77.516

655.00

524.00

00387806 c

6/08/78

77. 516

655.00

524.00

00387806 D

6/08/78

77.516

960.00

768.00

00387806 E

6/08/?8

77. 505

655.00

524.00

00387806 F

6/08/78

77. 505

655.00

521+. 00

00387806 G

6/08/78

77. 807

655.00

524.00

Number

Date

00387806 A

6/08/78

00387806 B

/Jl_~trv J? k~4:'t.
Malcolm P. Littlefield
Admintstrative Law Judge

Distribution:
Marshall P. Salzman, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 10404 Federal Building, 450 Golden
Gate Ave., Box 36017, San Francisco, California 84102
(Certified Mail)
Peabody Coal Co., 301 N. Memorial Dr., St. Louis, MO 63102
(Certified Mail)
Thomas F. Linn, Attorney, P.O. Box 235, St. Lo.uis, MO 63166
(CeI:tified :1ail)

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

March 30, 1979

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

Civil Penalty Proceeding
Docket No. BARB 79-113-P
A/O No. 15-10780-03002
Mary Beth No, 2 Mine

MARY BETH COAL CO., INC.,
Respondent
DEFAULT DECISION
Appearances:

Eddie Jenkins, Esq,, Office of the Solicitor,
Department of Labor, for Petitioner;
Lindell Begley, Safety Director, Mary Beth Coal
Cq., Inc., Bulan, Kentucky, for Respondent.

Before:

Judge Cook

On November 20, 1978, the Mine Safety and Health Administration
filed a petition for the assessment of civil penalty in the abovecaptioned case. An answer was filed by Respondent Mary Beth Coal
Co., Inc., on December 19, 1978. A notice of hearing was issued on
January 25, 1979, setting the hearing for 9:30 a,m., March 13, 1979.
A copy of the notice was sent by certified mail to the Respo~dent.
A return mail receipt indicated that it was delivered on February 1,
1979.
On March 13, 1979, the hearing commenced. Counsel for MSHA
appeared. No one appeared to represent the Respondent (Tr. 4-5),
Following this determination, a brief recess was taken. Following
this recess, counsel for MSHA indicated that he.h_ad spoken by telephone to Mr. Begley, the respresentative of the Respondent during
the recess. The result of that conversation was that Mr. Begley
stated he would not be appearing at the hearing (Tr. 6).
Thereupon, it was noted on the record that title 29, section
.2700.26, subsection (c) states: "Where the respondent fails to
appear at a hearing, the Judge shall have the authority to conclude
that respondent has waived its right for hearing and contest of the
proposed penalties and may find respondent in default" (Tr. 7). The
respondent was then found in default (Tr. 7).

It was also noted that the above section continues as follows:
"Where the Judge determines to hold respondent in default, the Judge
shall enter a summary order imposing the proposed penalties as final
and directing such penalties be paid" (Tr. 7). Counsel for MSHA
then filed Exhibits M-l(a) and M-l(b) which were the proposed assessments of September 5, 1978, concerning Mary Beth Coal Co., Inc., and
the Mary Beth No. 2 Mine. Payment was then ordered to be made in the
amount of the proposed penalties as set forth in Exhibit M-l(b) within
30 days of the issuance of that order.
ORDER
Accordingly, the order is reaffirmed and Respondent is directed
to pay the penalty assessed in the amount of $784 within 30 days of
the date of this decision.

ohn F. Cook
Administrative Law Judge
March 3.0, 1979

Issued:

Distribution:
Eddie Jenkins, Esq., Office of the Solicitor, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Lindell Begley, Safety Director, Mary Beth Coal Co., Inc., P.O.
Box 200, Bulan, KY 41722 (Certified Mail)

2
/

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

March 30, 1979
Applications for Review

PERMAC, INC.,
Applicant

v.

Docket No. NORT 79-69
Citation No. 0693222

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

Docket No. NORT 79-70
Citation No. 0693221
Docket No. NORT 79-71
Citation No. 0693223

DECISION GRANTING MOTION·TO DISMISS
Appearances:

T. E. Stafford, Director of Personnel, Permac, Inc.,
for Applicant;
Edward Fitch, Esq., Office of the Solicitor,
D~partment of Labor, for Respondent.

Before:

Judge Cook

Applications, apparently pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977 for review of citations
issued pursuant to section 104(a) of the Act, were filed for Permac,
Inc. In its application, Permac alleged that all of the citations
have been abated.
On March 9, 1979, MSHA filed an answer and a motion to dismiss.
In its motion, MSHA alleged, that "section 105( d) of the Act does not
aµthorize review of these abated citations and consequently these
actions must be dismissed."

The Applicant filed no response to this motion·and the time
allowed for such a response has passed.
The motion to dismiss will be granted because the Applicant in
these proceedings is not challenging the reasonableness of the length
of abatement time fixed in the citations and the Applicant is premature as.to a review of the citations on any other issue. There is
no showing that a notice of proposed assessment of penalty has been
issued in these cases as yet.
Section 104(a) of the 1977 Act provides for the issuance of
citations by an inspector for violations ~ommitted by an operator of
a mine.

Section 105(a) of the 1977 Act provides in pertinent part:
If, after an inspection or investigation, the Secretary issues a citation or order under section 104, he
shall, within a reasonable time after the termination of
such inspection or investigation, notify the operator by
certified mail of the civil penalty proposed to be
assessed under section llO(a) for the violation cited
and that the operator has 30 days within which to notify
the Secretary that he wishes to contest the citation or
proposed 1nrsessment-of penarty:--'k-* *-ff, w1th1n 30 days
from the receipt of the notification issued by the
Secretary, the operator fails to notify the Secretary
that he intends to contest the citation or the proposed
assessment of pendlty,' and no notice is filed by any
miner or representative of miners under subsection (d)
of this section within such time, the citation·and the
proposed assessment of penalty shall be deemed a final
order of the Commission***· [Emphasis added.]
Section ,105(d) of the 1977 Act also sets forth provisions for
the assessmen~ of penalties where the Secretary believes an operator
has failed to 'correct a violation within the period permitted for
its correction. Under this provision, the operator also has 30 days
within which to contest the Secretary's notificat~on of the proposed
assessment of penalty.u
11

Section lOS(d) of the 1977 Act provides in pertinent part:
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 tllne fixed in a citation
or modification thereof issued under section 104, * * *
the Secretary shall immediately advise the Con:unission of
such notification, and the Commission shall afford an
opportunity for a hearing***· [Emphasis added.]
A study of subsection 105(d) shows that Congress provided for
review to be obtained as relates to three categories of actions taken
by representatives of the Secretary of Labor. First, an operator is
permitted to 11 contest the issuance or modification of an order issued
under section 104." Second, an operator is permitted to obtain
review of a ncitation or a notification of proposed assessment of a
penalty issued under subsection (a) or (b) 11 of section 105. Third,
an operator is permitted .to obtain review of "the reasonableness of
the length of abatement time fixed in a citation or modification
thereof issued under section 104."
2

In view of subsection 105(a), the words of subsection 105(d)
referring to review of "a citation or a notification of proposed
assessment of a penalty issued under subsection (a) or (b) * * *"
must be read to mean that the citation can be reviewed when the
notification of proposed assessment is reviewed.
It is therefore clear that the time for the Applicant to file
an application to review a citation will not begin to run until
after a notice of proposed assessment of penalty has been received by
the operator, except in the instance where the operator intends to
contest the reasonableness of the length of abatement time fixed in
the citation. 'Ille issue as to the validity of the citation will then
be determined in the civil penalty proceeding.
The operator can then contest both the fact of violation (i.e.,
the citation) and the amount of the penalty' assuming there is a violation. If he fails to file such a notice within 30 days as
provided, both the citation and the penalty b·ecome a final order of
the' Commission.
This interpretation is supported by the legislative history.
An extensive discussion of this history is contained in decisions
on similar motions by Judge Steffey in Itmann Coal Company v. MSHA
(HOPE 78-356), dated May 26, 1978, and Judge Merlin in United Sta'tes
Steel Corporation v. MSHA (PITT 78-335), dated July 11, 1978.
The Procedural Rules of the Federal Mine Safety and Health Review
Commission contain certain regulations relating to the processing of
applications for review of citations and orders. Part of these rules
are contained in 29 CFR 2700.lB(a). If it were not for the fact that
the intent of Congress is expressed in subsections 105(a) and (b) and
subsection 105(d) of the 1977 Act, it would be possible to argue that
29 CFR 2700.18(a) allows review of citations generally rather than
only as to the reasonableness of the length of abatement time. However, the word "citation" in the regulation cannot be construed to
grant more than the type of review of a citation which the statute
itself grants at that stage, and that is a review of the reasonableness of the time for abatement. Unlimited review of the citation will
eventually be obtained, but that will take place during the course of
the civil penalty proceeding.
In view of the statements of the Court of Appeals in Sink v.
Morton, 529 F.2d 601 (4th Cir. 1975), it is clear that no due process
problem arises in this instance.
The court therein noted that the District Court:
[T}hough concluding that the obligation of the plaintiff
to 11 exliaust his administtative remedies under the Act
[was) entirely reas.onable and in accord with accepted
principles of administrative law," held that the plaintiff
3

had made a showing of irreparable harm, without any
countervailing interests of safety, by reason of the
11
failure of the Secretary of the Interior to utilize his
discretion in order to provide a hearing before a mine
closure order is issued" and had 11 had no opportunity to
present his case to the appropriate authorities. t1 For
these reasons, it granted an injunction against the
enforcement of the notice and withdrawal orders "pending
a final administrative determination of the issues
involved. t1 [Footnote omitted.]
at 603.
The Court of Appeals ruled that the District Court erred in this
finding. It went on to state:
Nor is it of any moment that the inspector's withdrawal orders were issued without a hearing. By appeal,
the plaintiff can obtain a hearing, which, by the terms
of the Act, is to be held as soon as practicable, and he
is accorded the right to apply, as an incident to that
appeal, for a temporary stay of the orders. Such procedure ac'C,ords the plaintiff due process. Due process
does not command that the right to a hearing be held at
any particular point during the administrative proceedings; it is satisfied if that right is given at some
point during those proceedings. Reed v. Franke (4th Cir.
1961) 297 F.2d 17, 27.
at 604.
Accordingly, MSHA's motion to dismiss is GRANTED. IT IS
THEREFORE ORDERED that the above-captioned proceedings be, and they
hereby are, DISMISSED.

Judge

Issued:

March 30, 1979

Distribution:
T. E. Stafford, ·Director of Personnel, Box 1614, 127 North St.,
Bluefield, WV 24701 (Certified Mail)

"Edward H. Fitch, E"sq., Mine Safety and Health Administration,
Office of the Solicitor) U:S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
Administrator for Coal Mine Safety and Health$ U.S. Department
of Labor
Standard Distribution
4

i:; U.S. GOVERNMENT PRINTING OFFICE : 1979 0-281-729 (3301)