Index-January 1980
Commission Decisions
1-10-80
1-22-80

U.S. Steel Corp.
Consolidation Coal Co.

PITT 76x232-P
VINC 77-132-P

pg. 1
Pg. 3

BARB
YORK
DENV
WEVA
LAKE
NORT
WEVA
PENN
MORG
NORT
KENT
WEVA
PIKE
KENT
PIKE
BARB
BARB
PITT
PIKE
DENV
PITT
WEST
WEST
BARB

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Administrative Law Judge Decisions
1-2-80
1-7-80
1-9-80
1-10-80
1-11-80
1-14-80
1-15-80
1-15-80
1-22-80
1-23-80
1-24-80
1-24-80
1-28-80
1-28-80
1-28-80
1-28-80
1-28-80
1-28-80
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1-29-80
1-29-80
1-29-80
1-29-80
1-30-80
1-31-80
1-31-80

Jam.es. F. Cr.umbaker v. Pyro Mining Co.
Thadeaus Mealus, et al.
Energy Fuels Corp.
Davis Coal Co.
~cCormick Sand Corp.
Clinchfield Coal Co.
U.S. Steel Corp, Gary District
Marblehead Lime Co.
Consolidation Coal Co.
Raven Mining Co.
Island Creek Coal Co.
Sewell Coal Co.
Triple S Coal Co., Belinda Coal Co.
Pyro Mining Co.
Triple S Coal Co.
Black Jack Coal Co., Inc.
United Cement Co.
Solar Fuel Co.
C.C.C.- Pompey Coal Co., Inc.
Rio Algom Corp.
Sunbeam Coal Corp.
FMC Corp.
Brubaker-Mann, Inc.
Freeport Kaolin Co.
Local Union 6843, District 28, UMWA v.
Williamson Shaft Contracting Co.
Southern Ohio Coal Co.

79-313
79-50-H
79-27-P
79-358
79-80-RM
78-325-P
79-304
79-36-M
79-109
79-78
80-22-D
79-293
79-7-P
79-181
79-22-P
79-157-P
79-55-PM
79-200-P
79-19-P
79-347
79-210
79-419-RM
79-193-M
79-219-PM

VA 80-17-C
LAKE 79-24

7

12
15
18
21
25
47

48
49
82
93
96
100
105
121
128
133
155
163
187
192
225
227
233

Pg. 265
Pg. 270

JANUARY

The following cases were Directed for Review during the month of January:
Secretary of Labor, MSHA, v. Burgess Mining & Construction Corporation,
SE 79-42-R; (Judge Fauver, December 13, 1979)
Cleveland Cliffs Iron Company v. Secretary of Labor, MSHA and United
Steelworkers of America, VINC 79-68-M, and Secretary of Labor, MSHA
v. Cleveland Cliffs Iron Company, VINC 79-240-PM; (Judge Broderick,
December 3, 1979)
Secretary of Labor, MSHA v. Cyprus Industrial Minerals Co., DENV 78-558-M
(Judge Koutras, December 18, 1979)
Secretary of Labor, MSHA, v. Davis Coal Company, WEVA 79-130 through
WEVA 79-133, (Judge Michels, December 13, 1979)
Secretary of Labor, MSHA, v. El Paso Rock Quarries, Inc., DENV 79-139-PM,
etc., (Judge Moore, December 17, 1979)
Secretary of Labor, MSHA v. Cement Division, National Gypsum Company,
VINC 79-154-PM, (Judge Broderick, December 26, 1979)
Secretary of Labor, MSHA, v. Oracle Ridge Mining Partners, WEST 79-248-M,
(Judge Merlin, December 11, 1979)
Secretary of Labor, MSHA, v. Van Mulvehill Coal Co., Inc., SE 79-127,
(Judge Broderick, December 12, 1979)
Review was Denied in the following case

during the month of January:

Secretary of Labor, MSHA, v. Ozark-Mahoning Company, VINC 79-138-PM,
etc., (Judge Stewart, November 29, 1979)

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

January 10, 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket Nos. PITT 76X232-P
PITT 76X235-P

v.
IBMA 77-23

U.S. STEEL CORPORATION
ORDER

The decision of the administrative law judge assessing penalties
against U.S. Steel Corporation is affirmed. See, Republic Steel Corp.,
1 FMSHRC 5 (1979); Kaiser Steel Corp., 1 FMSHRC 343 (1979); and ou
November 30, 1979 order in this case.

80-1-5

1

Distribution
Thomas A. Mascolino, Esq.
Edward H. Fitch, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Va. 22203
Billy M. Tennant, Esq.
U.S. Steel Corporation
600 Grant Street, Room 6082
Pittsburgh, PA 15230
Administrative Law Judge Paul Merlin
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, VA 22041

2

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

January 22, 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. VINC 77-132-P
IBMA 78-3

CONSOLIDATION COAL COMPANY
DECISION

This case involves a civil penalty proceeding under section 109(a)
of the Federal Coal Mine Health and Safety Act of 1969, and contested
within the administrative procedures then provided by the Department of
the Interio~. Those regulations required the Department's Office of
Assessments to prepare and serve on the mine operator an initial order
of assessment; they further provided that the operator could decline to
pay the proposed assessment and request a hearing before an administrative
law judge. In this case the mine operator had requested such a hearing.
Thereafter, but before hearing, the operator offered to pay in full the
penalty originally proposed by the Office of Assessments. The principal
question presented here is whether the judge's denial of the operator's
motion to adopt the original assessment of penalty as his own constituted
legal error. We .hold that it did not and affirm the judge's de.cision.
This case. arises because of a fatal accident which occurred at a
surface coal mine site operated by Consolidation Coal Company. A slide
of material from a spoil bank at the mine site resulted in fatal injuries
to a foreman-in-training. Following an accident investigation by the
Mining Enforcement and Safety Administration Q1ESA), a notice of violation
was issued charging a violation of 30 CFR §77.1006. Subsection (a) of
that regulation requires that men other than those necessary to correct
unsafe conditions shall not work near or under dangerous high walls or
banks. The notice specifically charged that, at the time of the accident,
an assistant superintendent at the mine and the foreman were performing
their duties in an area between a stripping shovel and an unstable spoil
bank.
In accordance with regulations then in effect, MESA's Office of
Assessments issued an order assessing a penalty of $1,300 for the violation.
The assessment was discussed without resolution at a conference between

80-1-12
3

representatives of the mine operator and the Office of Assessments.
Consolidation then requested that the matter be ref erred for an evidentiary hearing before an administrative law judge.
A Petition for Assessment of Civil Penalty was filed by the Office
of Solicitor, Department of Interior on July 11, 1977, and sought a
penalty for the alleged violation. The petition made no reference to
the earlier assessment of the Office of Assessments, nor did it propose
any specific dollar amount for the penalty. A copy of the petition was
sent to the mine operator with an accompanying letter signed by MESA's
attorney. In that letter Consolidation was advised that it could dispose
of the matter "at this time" by paying the $1,300 assessment in full.
On August 4, 1977, Consolidation filed an auswer denying that a
violation took place and the case was assigned to an administrative law
judge. During subsequent settlement negotiations, the MESA attorney
apparently advised Consolidation's attorney that he would not accept
payment of $1,300 as a means of disposing of the proceeding. A prehearing conference was held before the judge on September 9, 1977, at which
time the attorney for Consolidation moved that the judge adopt the
findings of MESA's Office of Assessments and issue a final order of the
Secretary assessing a penalty of $1,300. In opposing the motion, the
Solicitor expressed the view that $1,300 was an insufficient penalty, on
the grounds that the gravity of the violation and the negligence of the
operator justified the maximum penalty of $10,000. By written order of
September 14, 1977, the judge denied the motion and scheduled the case
for a hearing on the merits. Consolidation's attempt to take an interlocutory appeal from the judge's order was denied by the Board on
September 28, 1977.
The case then proceeded to hearing where the parties litigated the
issues of whether a violation occurred and, if so, the appropriate
penalty. In a written decision issued on January 21, 1978, the judge
held that a violation of 30 CFR §77.1006 occurred and found th.at the
evidence showed that the assistant superintendent's actions near the
spoil bank immediately prior to the accident were "extremely negligent
and reckless in every respect." The judge assessed a $10,000 penalty.
Consolidation appealed to the Board, arguing that the judge erred
in denying its motion to adopt the Office of Assessments' original
assessment prior to hearing. The operator contends that its willingness
to pay the original assessment of $1,300 eliminated any triable issue,
rendering a hearing unnecessary. It contends that, in such circumstances,
the Board's decision in Zeigler Coal Company, 7 IBMA 312 (1977), requires
that the original assessment be adopted by the judge. We reject Consolidation's argument.
In Zeigler, the operator had requested a hearing on all 295 alleged
violations for which MESA had sought a penalty. Thereafter, but before
the hearing, the operator had offered to pay the full amount assessed by
the Office of Assessments for 97 of the violations, The judge found

4

that MESA would have accepted payment of each penalty in the original
assessed amount if assessments for all of the 295 violations were
voluntarily paid. Thus, in Zeigler, the Solicitor had not claimed that
there was a triable issue of fact regarding the 97 violations, but
rather took an "all or nothing" approach in the settlement negotiations.
In those circumstances, the Board held that there was no triable issue
and that the Office of Assessments' findings may be adopted by the judge
if found to be appropriate. In that case the judge affirmatively adopted
those findings. Here, the judge held, and we agree, that the Solicitor's
request for a $10,000 penalty raised a triable issue, namely, the appropriate amount of penalty in light of the criteria for assessment of
penalties set forth in section 109(a)(3) of the 1969 Act.
Furthermore, regulations of both the Office pf Assessments,
30 CFR §100.7(d), and the Department's Office of Hearing and Appeals,
43 CFR §4.545(c), specified that if an evidentiary hearing were requested,
the judge would determine the amount of civil penalty, if any, on a de
novo basis. 1/ Thus, Consolidation was on notice of this Departmental
policy at the time it requested the hearing, yet did not make its offer
to pay the $1,300 until after the issues had been joined before the
judge.
Accordingly, we conclude that the judge's action in denying
Consolidation's motion was consistent with both the case law of the Board
and the pertinent Departmental regulations that were then in effect. The
decision is affirmed.

A. E.~~son, rommissioner

'-\Qt\~l'X~\Qwull\Ww
Marianf Pearlriian Nease, Commissioner
/

{
30 CFR §100.7(d) provided:
(d) In assessing a penalty, t~o:efice of Hearing and Appeals
may determine de novo the fact of
l~ition and the amount of the
civil penalty, taking into considera on the six criteria specified
in section 109(a)(3) of the Act.

j

vi

43 CFR §4.545(c) provided:
(c) In determining the amount of civil penalty warranted the
administrative law judge and the Board of Mine Operations Appeals
shall not be bound by a recommended penalty of the Mining Enforcement and Safety Administration or by any offer of settlement made
by either party.

5

Distribution
Fred Souk, Esq.
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
Thomas Mascolino, Esq.
Michael V. Durkin, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Va. 22203
Paul Merlin
Office of the Administrative Law Judges
FMSHRC
5205 Leesburg Pike, 10th Floor
Falls Church, Va. 22041

6

ADMINISTRATIVE LAW JUDGE DECISIONS
JANUARY 1 - 31, 1980

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

2 1880
Complaint of Discharge,
Discrimination, or
Interference· ·

JAMES F. CRUMBAKER, .

Complainant

Docket No. BARB 79-313

v.

Pyro Mine No. 11
PYRO MINING COMPANY,
Respondent
DECISION
Appearances:

William R. Thomas, Esq., Spenard & Thomas, 18 Court Street,
Madisonville, Kentucky, for Complainant;
Kirby Gordon, Esq., Gordon & Gordon, 111 Frederica Street,
Owensboro, Kentucky, for Respondent.

Before

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued September 21, 1979, a hearing
in the above-entitled proceeding was held on November 28, 1979, in Evansville,
Indiana, under Section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977.
Upon completion of the evidence presented by the parties, I rendered
the following bench decision which is reproduced below (Tr. 281-289):
The application or complaint, I should say, in this case
was filed on March 13, 1979, and as my opening statement
indicated, was filed by Mr. Crumbaker after the Secretary of
Labor had made a finding that the complainant was not involved
in an activity protected by provisions of Section 105(c)(l) of
the Act at the time he was discharged. Therefore, I base all
the findings that I shall make in my decision entirely on
what the witnesses have said here today.
The issue. of course, is whether Mr. Crumbaker·was engaged
in a protected activity under Section 105(c)(l), so as to be
entitled to a finding of discrimination and a ruling that he ·
should be given the. relief provi.ded for in Section 105(c) (3).
I shall first make. some findings of fact and if those··
facts are.entirely inconsistent wi.th. some of the Witnesses'
testimony, I shall in the subsequent part of my decision
indicate/briefly, wh.y I have ruled· in favor of one witness
as against another.

7

Crumbake.r v. Pyro, Docket No, BARB 79-313 (Contd.)
The ind.dent which led up to Mr, Crumbaker 1 s discharge.
occurred on Novembe.r 21, 1978. Mr. Crumbaker had come to work
on the da:y shift and the. section foreman or unit foreman on that .
day shift was Mr. Griffin, Mr. Crumbake.r fi.rs.t went to the
number four entry and found that it needed to have some bolts
installed and he. proceede.d to make that his. first work. of the
day.
After he had complete.d h.is. roof bolting i.n the number
four entry, he constructed some, crossovers at the interse.cti.on
of the number four e.ntr:y at the last open cross.cut, And after
completing those, he traveled into the crosscut between the
fifth, and sixth entries where Mr, Griffin had made some marks,
indicating that additional roof bolts should be installed,
Mr. Crumbaker was in the process' of beginning to install
roof bolts in the crosscut when Mr, Griffin came into the
crosscut and told Mr. Crumbaker that he wanted Mr, Crumbaker to
go and get his roof bolting machine loaded with an additional
supply of bolts, so as to be able to bolt the number six entry
, , , the face of number six entry, At that time, Mr. Crumbaker
told Mr. Griffin that the crosscut was unsafe, in his opinion,
until such time as the additional roof bolts had been installed,
At that point, Mr, Griffin told Mr, Crumbaker that his
roof bolting machine was not where he wan~ed it to be and that
Mr. Crumbaker should move the roof bolting machine out of the
crosscut.
It appears on the basis of both Mr, Griffin's and Mr,
Crumbaker's testimony that Mr. Crumbaker might have had an
option to whether he should continue on through that crosscut
or back out of it and go down to the number two crosscut and
over to the number six entry. But, at this point, it appears
that both of the parties, the section foreman and Mr. Crumbaker,
were probably somewhat heated in their emotional state and Mr.
Griffin did not pursue any discussion on the topic, but simply
gave Mr. Crumbaker an option of either moving the roof bolting
machine out of the crosscut or going to the house, which everyone agrees in the case, meant if Mr. Crumbaker did not
move the roof bolting machine at that moment out of the crosscut, that he would be discharged.
Mr. Crumbake.r felt strongly that it was unsafe to • • • for
anyone, himself or anyone else, to go through the crosscut;
the.re.fore., he took the. option of going to the telephone and call~
ing the mine fore.man's office. to advi.se the mine foreman that
he needed transportation out of the. mine be.cause. he'd been
discharge.cl by Mr. Griffin. Those are the. basic facts that
have to be found in order for one to apply Section 105(c)(l)
to them, to determine whether Mr. Crumbaker was involved in a
protected activity or not.

8

Crumbaker v. Pyro, Docket No. BARB 79-313 (Contd.)
And, of cours.e., Section 105(c) (1) reads and I quote,
"No person shall discharge or in any manner discriminate.·
against or cause. to be.di.scharged or cause discrimination
against or otherwise interfere. wi.th. the exercise of the
statutory rights .of any miner, representative of mine.rs or
applicant for employment in any coal or other mine subject to
thi.s Act
be.cause. such_ mine.r, repres.entative. of miners. or
applicant for employment has filed or made a complaint under
or re.lated to this. Act, including.a complaint notifying the
operator or the. ope.rat.or's agent, or the repres.e.ntative of the
miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine * * *"·
And I shall stop quoting at that point, be.cause I think that
th.at's as far as[is] needed to apply as much of the. Section as
is [required] to apply the facts that we have. in this case.
And I find that on the basis of the facts that Mr. Crumbaker
was engaged in protected activity at the time of his discharge,
be.cause if there's any evidence in the case that's clear, it
is that there was a violation of the roof control plan because
the roof bolts in the crosscut between the number five and
six entries were farther apart than they should have been •
.They're supposed to be no more than five feet apart and
even Mr. Griffin admits that they were between six and six and
a half feet apart. And he conceded that in his deposition. He
may have been correct in saying that they were up to seven feet
apart. Now, I have [in] many cases,·· civil penalty cases,· assessed
substantial penalties for violations of the roof control plan
which were no greater than the one involved in this proceeding.
And I have had, in many cases, many [i]nspectors testify that
more miners are killed in underground mines for violation of
the roof ·control plans than any other cause of death and injury
in mines. And therefore, if there's any kind of complaint
that a miner can make which is beneficial to the preservation
of the safety of the miners, it is for a man to insist that a
roof control plan be followed and that roof bolts be installed
before equipment or people pass through entries or crosscuts
which have not been bolted in accordance with the plan.
Now, there's been testimony that the roof in the unit
number three was safe and appeared sound, but [i)nspectors
are constantly telling me, it's goad roof that kills people
be.cause an unsafe or a hazardous looking roof gets supported,
while the good roof is allowed to be unsupported and th.at's the
time. that a hunk of roof falls an.d injures or [k] ills someone.
So, we. cannot say that be.cause Mr. Gr if fin walked under this
unsupported roof that that made i.[t] okay for everyone else to
do so.
·
Now:, I agre.e. with. Mr. Thomas that the testimony of Mr.
Wilson i.s very helpful in substantiating the position of Mr.
Crumbaker in this case. Mr. Wilson was very certain of where the
power center sh.ould have be.en and where the trailing cables for
all the equipment was an.cl while he disagreed. with both Mr.

9

Crumbaker v. Pyro, Docket No. BARB 79-313 (Contd.)
Griffin and Mr. Crumbaker as to the location of those trailing cables, but s.till • • • his testimony was still supportive
of the fact that Mr. Crumbaker was involved in trying to
support a place_ in this crosscut. And Mr. Wilson's testimony
sh~s it was_ his intention to go through that crosscut between
the. number fi:ve and number s.ix entr[ies.]and that was his way
of going across the unit in order· to mine_ or load from the
number six entry, acros.s to· the_- number one_ entry. And, therefore,
Mr. Wilson's te.5timony doe.s support the complaint as it was
stated by Mr. Crumbaker, namely that Mr. Crumbaker was entitled
to assum.e, based on normal operating stages that the roof
bolting machine was right behind • • • excuse me, the loading
machine was right behind Mr. Crumbaker' s roof bolting machine
and that Mr. Wilson had every intention of going under that unsafe roof .if Mr. Crumbaker had gone under that unsafe roof and had
passed on out with the roof bolting machine to the number six entry.
The testimony of Mr. Griffin in this proceeding was
extremely erratic. He changed his position several times about
the location of trailing cables and whether they were supported
and not supported. And I was not at all certain that he was
clear in his mind as to the situation that existed at the time
that Mr. Crumbaker was discharged. And I think that the discussion that occurred on the morning after Mr. Crumbaker's
discharge, on November 22, were largely an effort by the mine
foreman, Mr. Ramsey, to support the action which M[r]. Griffin
had taken.
It's normal for one supervisor to try to sustain the
act of another supervisor, because that's the only way to establish discipline in a mine or anywhere else. So, I'm not surprised that Mr. Ramsey supported Mr. Griffin. The fact that
Mr. Ramsey declined to give Mr. Crumbaker a job even after Mr.
Crumbaker was willing to concede that he was wrong, shows that
management was not overly pleased with Mr. Crumbaker's insist(e]nce upon complying with safety regulations. And I think
that the fact that Mr. Crumbaker refused to operate the shuttle
car that was not in good mechanical condition would be a reason
for management to be just as happy to not have that sort of man
on their payroll. But the fact remains that Mr. Crumbaker has
a history, based on this record, of trying to support safety
in the mines and that if there's any reason at all for having
Section 105(c)(l) in the Act, it is to give protection to a man
who is willing to take a position as to safety in the. mine. And
therefore, instead of our condemning Mr. Crum.baker for his
contentiousness or his inability to get along with people,
I. think instead we owe him an apology and we should congratulate
him for being willing to [complain about unsafe conditions].
As Mr. Thomas has recognized, that sort of individual
is, - pe.rhaps, not going to be. liked by management, but sometimes
a thorn in the flesh is a beneficial tool to bring about the kind

of safety that this Act was intended to accomplish in coal mines.

10

Crumbaker v. Pyro, Docket No. BARB 79-313 (Contd.)
I may not have touche.d on all the points that the arguments
have., but I've tried to • • • that all -the. arguments have
conside.re.d, but 1 have. tried to· give. iny reasons for finding
in Mr. Crumbaker's favor.

WHEREFORE, it is ordered:
(A) The. complaint filed by Mr. James F. Crumbaker i.s granted
on the. basis of my findings that Mr. Crumbaker was engaged in
a protected activity under Section 105(c) (1) at the time of
hi.s discharge.. And, there.fore, he's entitled to the relief which
is provided for in Section 105 (c) (3) •
(B) James F. Crumbaker is reinstated to his position of
roof bolting machine operator at Pyro Mine, Number Eleven and
he shall be paid back wages beginning on November 21 at ten a.m.
and extending up to the present time, including interest at
eight percent less $6,200 earned by Mr. Crumbaker for work
for Mid-America Canning Corporation during the period covered
by his discharge. ".!./ The pay will be computed on the basis
of nine dollars and twenty-eight cents an hour on the basis
of a forty~one hour week, less insurance and state and federal
taxes. Mr. Crumbaker shall also be entitled to whatever royalty
and incentive pay other miners would have received for that
same period. Additionally, he shall be entitled to payment
for medical benefits for his family which he has personally
paid during that period, and for reimbursement for all attorney's
fees. ±./
(C)

personnel
1978.

Finally, there shall be removed from Mr. Crumbaker's
file, any references to the discharge on November 21,

~ (3, o3,-1n~tl ..

Richard C. Steffey
~
Administrative Law Judge

!/

The provisions for offset for earnings and for reimbursement
for attorney's fees were not part of my bench decision.

Distribution:
I

William R. Thomas, Esq., Attorney for James F. Crumbaker, Spenard &
Thomas, 18 Court Street, Madisonville, KY 42431 (Certified Mail)
M. Kirby Gordon II, Esq., Attorney for Pyro Mining Company,
111 Frederica Street, Owensboro, KY 42301 (Certified Mail)
Assistant Solicitor, MSHA, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203

11

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

(703) 756-6210/11/12

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

JAN

7 1980
Civil Penalty Proceedings

Docket No. YORK 79-50-M
A.O. No. 30-01185-05006A

v.

Docket No. YORK 79-51-M
A.O. No. 30-01185-05007A

THADEAUS MEALUS
(Shift Foreman),
Respondent

Docket No. YORK 79-52-M
A.O. No. 30-01185-05008A

JOHN KREIDER
(Mine Superintendent),
Respondent

Docket No. YORK 79-2-M
A.O. No.- 30-01185-05003W

ROBERT REUSS,
(General Mine Superintendent),
Respondent

Balmat Mine No. 4 and Mill

ST. JOE ZINC COMPANY,
Respondent
DECISION AND ORDER
The Secretary moves to withdraw the three captioned section
llO(c) cases and for approval of a settlement of the section
llO(a) case against the corporate operator. The settlement
proposed is $1600.00, or 80% of the $2,000 initially proposed
against the corporate operator.
Based upon an independent evaluation and de novo review
of the parties' extensive prehearing submissions,tne information furnished at the intensive prehearing conference of
November 20, 1979, the Secretary's subsequent investigation
and the representations of the parties, I find that because
of the passage of time, the unavailability of certain material
witnesses, the inability of the inspector to locate the areas
involved in the claimed innninent danger with a reasonable
degree of precision, the dinnning of witnesses' memories of
certain claimed admissions as well as the fact that the underlying
imminent danger closure order was assessed at only $295.00 it
is unlikely:

12

1.

That the Secretary can sustain the burden of showing
that the loose ground condition for which the underlying
section 107(a) order (Order No. 210043) was issued
was, in fact, an imminent danger;

2.

That any of the individuals charged under section llO(c)
ordered miners into an imminently hazardous area
solely for the. purpose of removing mining equipment
in light of time cards which show that these miners
were primarily engaged in abating the alleged condition;

3.

That the hazard presented by the loose roof. condition
that existed, while arguably serious, created a
substantial probability of physical harm to the miners
who entered the area to scale the loose ground and
to remove mining equipment; or

4.

That the violation of the closure order alleged
in Citation No. 210051 was the result of knowing or
reckless disregard for the order or the law, or was
caused by anything more than confusion over the conduct
permitted following issuance of the order.

For these reasons, and after taking into consideration the
other statutory criteria, I conclude the motion to withdraw and
to approve settlement is in accord with the purposes and policy
of the act.
Accordingly, it is ORDERED:
1.

That the motion to withdraw the charges against Thadeaus
Mealus, John Kreider and Robert Reuss be, and hereby is,
GRANTED and the petitions for assessment of civil
penalties DISMISSED.

2.

That the motion to approve settlement of the charge
against St. Joe Zinc Company be, and hereby is, GRANTED,
and that subject to payment of the amount of the
settlement agreed upon, $1600.00, on or before Monday,
January 21, 1980, the petition as to the corporate
operator be DISMISSED.

13

Distribution:
Edward Fitch, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Sanders D. Heller, Esq., 23 Main St., Gouverneur, NY 13642
(Certified Mail)

14

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

JAN

9 1990
Civil Penalty Proceedings

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

:
Petitioner

Docket No. DENV 79-27-P
A/O No. 05-00302-03001

v.
Docket No. DENV 79-28-P
A/O No. 05-00302-03002

ENERGY FUELS CORPORATION,
Respondent

Energy #1 & 2 Strip Mine
DECISION
Appearances:

Ann M. Noble, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitipner;
John D. Coombe, & Deborah Friedman, Esqs., Holland & Hart,
Denver, Colorado, for Respondent.

Before:

Judge Charles c. Moore, Jr.

The two cases captioned above allege 13 violations of the Federal Mine
Safety and Health Act of 1977. At the beginning of the hearing, the parties submitted a stipulation of partial settlement which I accepted on the
record. Pursuant to that stipulation, a total penalty of $650 is assessed
for the following citations: Citation No. 389931, Citation
No. 389950, Citation No. 389959, and Citation No. 389960. Petitioner vacated
Citation No. 389952 because the circumstances did not constitute a violation
of the mandatory standard. Six of the citations alleged that parking brakes
on various equipment were insufficient. The citation numbers are 389935,
389943, 389945, 389953, 389963, and 389965. It was agreed that the trial
would be confined to Citation No. 389965 but that all of the other citations
would be controlled by the results in the citation tried, including the percentage relationship between the penalty ~ssessed by the assessment officer
and the penalty assessed by me. For example, if I were to double the assessment officer's penalty as to Citation No. 389965, all of the others would
also be doubled. This resulted in only three alleged violations being subject to an evidentiary hearing. They were the parking brake citation mentioned, Citation No. 389964, involving alleged unsafe U-bolt clamps on a
powder truck and Citation No. 389939, involving an accumulation of material.
After the Secretary had presented its entire case as to the three citations and after Respondent had submitted most of its evidence, the parties

15

decided to enter a further stipulation whereby the Secretary of Labor would
withdraw its penalty action with respect to and consent to the vacation of
all of the parking brake citations. The aforementioned parking brake citations are accordingly vacated. Respondent agreed to withdraw its challenge
to Citation No. 389939 and the parties agreed that an appropriate penalty
would be the original proposed assessment of $240. I approved this agreemen~.
As to the remaining violation, Citation No. 389964, the parties
agreed that the explosive hauling truck was in an µnsafe condition and that
a violation of the safety standard had occurred. The only issue left for me
to decide was whether Respondent could be held responsible for a violation
committed by the owners of an independent explosive supply company. The
facts regarding the relationship between the mining company and the explosive
company were stipulated and briefs were filed.
It was agreed~ however, that I should stay my decision until after the
Commission had decided Secretary of Labor v. Monterey Coal Company, Docket
No. HOPE 78-469, etc. The Commission has issued a decision in Monterey,
however, it based that decision on Secretary of Labor v. Old Ben Coal Company,
Docket No. VINC 79-119, decided October 29, 1979. Petitions to review the
Commission's decisions in both Monterey and Old Ben have been filed with a
United States Court of Appeals, so the last word may not have been spoken on
this issue.
I see no point in delaying my decision pending a court decision because
the losing party will undoubtedly appeal to the Commission and the result
will eventually be controlled by the court decision anyway. Nor do I see
any point in adding my analyses of the precedents which go to the point of
this controversy. In Old Ben and in Monterey the Commission held the owner
of a mine responsible for the actions of an independent contractor even
though the decision of the Secretary of Labor to cite the owner had been
based on an arbitrary policy of always citing the owner for a violation committed in the mine. The decisions were made without regard to whose employees might be endangered, who would be in the best position to observe and
abate the unsafe condition, or the control which the owner exerci~.es over the
independent contractor. The Commission hints that it may change its position
at some future time, but it has not done so yet and in accordance with my
interpretation of the two Commission decisions on this point, I will hold
Energy Fuels Corporation responsible for the violation. I realize that this
means that in order to avoid the possibility of a citation, the mine owner
may have to inspect every vehicle that comes on to mine property, and while
I am not sure that such a requirement will promote mine safety, I nevertheless think it is required by the two Commission decisions mentioned above.
The negligence on Respondent's part, however, was of a lower order and a
penalty of $50 will be assessed. As to the other criteria, the only information in the file is that contained in the assessment sheet and I am relying
on that.

16

ORDER
Respondent is ordered to pay to MSHA, within 30 days a penalty in the
amount of $940.

Charles c. Moore, Jr.
Administrative Law Judge
Distribution:
Ann Noble, Esq., Office of the Solicitor, U.S. Department of Labor,
15019 Federal Office Bldg., Denver, CO 80202 (Certified Mail)
John D. Coombe & Deborah Friedman, Esqs., Holland & Hart,
555 Seventeenth St., Suite 2900, Denver, CO 80201 (Certified Mail)

17

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

(703) 756-6210/11/12

JAN 1 0 1911
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. WEVA 79-358
A.O. No. 46-02208-0318V

v.

Docket No. WEVA 79-359
A.O. No. 46-02208-03019

DAVIS COAL COMPANY,
Respondent

Marie No. i" Mine

DECISION AND ORDER APPROVING SETTLEMENT
In response to the order to furnish additional information
concerning the motions to approve settlement, the Regional
Solicitor has declined to furnish "a current evaluation of this
operator's ability to comply with the Mine Safety Law
considering its financial difficulties." The Regional Solicitor
claims that in reviewing a proposed settlement the advisability
of a reduction in proposed penalties because of adverse
business impact need not take into account or be balanced
against the affirmative interest in perpetuating only safe
mining operations. 1/ The logical extension of this position
seems to be that mine safety is a consideration secondary to
mine productivity and that the enforcement policy in effect
is "all the safety consistent with production" and not "all
the production consistent with safety."
These echoes of a production-oriented enforcement policy
I thought were authoritatively rejected with the transfer of
enforcement responsibility from the Interior Department to the
Labor Department. I believe, therefore, that the view
expressed by the Regional Solicitor, namely that "evaluation
of an operator's financial ability to comply with the mine
safety and health regulations is not" to be considered in
evaluating a settlement where the principal justification

1/ While the Act requires that adverse business impact be
"cons'Idered", it does not require that it be given controlling weight
or that it cannot be outweighed by the countervailing interest
in continuing only those mining operations that promote mine
safety.

18

for the reduction is adverse business impact, represents a
profound misreading of the legislative intent.
Congress has declared that "the first priority" of all
concerned with mine safety is protection of the health and
safety of the miner. Certainly an interpretation of that
intent that puts safety at risk in the interest of continued
productivity runs counter to the fundamental declaration of
policy contained in the Act as well as the Secretary's
explicit mandate to evaluate an operator's past performance
and history of compliance to ensure that mining operations
do not constitute a "continuing hazard to the health or safety
of miners." 30 U.S.C. §§ 814(c)(l), 818(a)(2); S. Rep. 95-181,
95th Cong., 1st Sess., at 32-33, 38-39 (1977).
As the Senate Connnittee Report that accompanied the 1977
Act notes: "* i• * the purpose of a civil penalty is to induce
those officials responsible for the operation of a mine
to comply with the Act and its standards." Id. at 41. How a
-penalty can deter future violations and ensure voluntary
compliance if the operator does not have the financial resources
to effect compliance is not explained. Nor is _the public interest
in encouraging a mining operation without the financial resources
to comply with mine safety laws. Just as the purpose of the
law is not to raise revenue so also its purpose is not to
perpetuate unsafe or even marginally safe mining operations.
In my judgment, the failure to make the evaluation called for
is a violation of the Secretary's obligation to ensure a working
environment substantially free of the hazards proscribed by the
Act.
Under no circumstances, in my judgment, can the imposition
of a token or unwarrantably low penalty be justified by the
claim that the adverse business impact criteria precludes a
realistic evaluation of the ongoing mine operation from the
standpoint of ability to comply and to devote necessary resources
to promote mine safety. Such an evaluation of an operation in
serious financial difficulties is not beyond the competence
and expertise of MSHA. The history and pattern of prior conduct
and violations is highly predictive of the likelihood of future
compliance. Simple observation should provide the basis for
determining whether, for example, an operator has on hand
the necessary materials to ensure compliance with its roof
control plan. Consequently, I think it unfortunate that the
Regional Solicitor has declined to furnish the evaluation requested.
Nevertheless, I am satisfied, at least for the present,
that with the waters stirred, with the matter under review
by the Commission, and with the possibility that MSHA may
be held liable for the negligent execution of its duty to

19

prevent the continuation of mining conditions that constitute
an ongoing hazard to miners, the surveillance of the Marie No. 1
Mine will be intensified. Compare, Raymer v. U.S., 455 F.Supp.
165 (W.D. Ky. 1978).
As previously noted, the overall reduction proposed in
these cases is only $1250.00 or one-third of the amount
initially assessed. It is unlikely, therefore, that it will
be determinative of whether the operator sinks or swims. Furthermore, I am impressed with the operator's representations as
to the efforts he will make to achieve future compliance.
Based on my independent evaluation and de novo review
of the violations, the matters set forth in IDrtigation,
including the fact that the hole-through occurred while the
operator was acting under an MSHA approved plan, the operator's
straitened financial circumstances, and the Pikeville National
Bank loan to cover immediate operating expenses, I conclude
the settlement proposed is acceptable.
Accordingly, it is ORDERED that the Secretary's motions
to approve settlement be, and hereby are, GRANTED. It is
further ORDERED that the operator pay the settlement agreed
upon, $2,325.00 on or before Friday, Feb
ry 7, 1980, and that
subject to payment the captioned petiti s be DISMISSED.

Distribution:
Sidney Salkin, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Paul E. Pinson, Esq., P.O. Box 440, Williamson, WV 25661
(Certified Mail)
Winford Davis, Davis Coal Company, Box 427, Kermit, WV 25674
(Certified Mail)

20

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

JAN 11 1980

McCORMICK SAND CORPORATION,
Applicant
v.

Applications for Review
Docket No. LAKE 79-80-RM
Citation No. 292383-1; 5/7/79

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

Docket No. LAKE 79-81-RM
Citation No. 292384-1; 5/7/79
Respondent
McCormick Sand
DECISION

Appearances:

Thomas J. O'Toole, Esq., Muskegan;. Mithigan, for Applicant;
Karl Overman, Esq., Office of the Solicitor, Department of
Labor, for Respondent.

Before:

Administrative Law Judge Michels

These matters are before me for decision upon Applications: for Review
filed May 14, '!979, pursuant to provisions of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et~· (the Act). Answers were filed
generally denying the allegations but admitting that the challenged citations
were issued. A hearing was held on September 24, ·1979, in Grand Rapids,
Michigan, at which the parties were represented by counsel. The parties
filed posthearing briefs and proposed findings and conclusions which have
been carefully considered. The proposed findings not adopted or specifically
rejected herein are rejected as immaterial or not supported by fact.
The charges concern Citation Nos. 292383 in LAKE 79-80-RM and 292384 in
LAKE 79-81-RM. Both are the same except that they refer to different equipment. Citation No. 292383 reads: "A continuous metallic grounding conductor
was not provided between the.dryer plant and the transformer safety ground"
(Applicant's Exh. No. 2). Citation No. 292384 reads: "A continuous metallic
grounding conductor was not provided between the shop and the transformer
safety ground" (Applicant's Exh. No. 1). In both instances the inspector
charged a violation of 30 CFR 56.12-25 which states: "Mandatory. All metal
enclosing or encasing electrical circuits shall be grounded or provided with
equivalent protection. This requirement does not apply to battery-operated
equipment."

21

Background Facts
There is little if any controversy on the electrical grounding in use
by the Respondent. Respondent business is an industrial silica sand operation. The components include a work plant, a dryer plant and a shop. Electricity is supplied by a public utility. The system used is known as a
"three phase ungrounded delta system" and it is not battery operated (Tr. 7).
It was grounded by pin grounds or ground electrodes at three locations: One
at the wash plant near the service entrance box, another at the dryer plant
and finally a third one at the shop (Tr. 5-9, MSHA Exh. No. 1). The distance
between the wash plant and the dryer plant is approximately 200 feet; that
between the dryer plant and the shop, about 75 feet (Tr. 28-29).
The electrical system, as it had been modified, was designed and
installed by an electrical firm known as Whittaker Electric. This firm
supplies electric service and equipment and has offices in Grand Rapids and
Muskegon, Michigan. It employs engineers and designers (Tr. 68-69).
Robert Alcala, the firms vice president in charge of construction and
technical service is a graduate electrical engineer and is registered in the
states of Michigan and Ohio (Tr. 136).
The electrical system which Whittaker Electric installed has ground
fault indicating lights. These are designed to give a warning if a fault
occurs in the system (Tr. 36). Tests were performed which showed that the
resistance level of the ground was less than 25 ohms, which is within the
limit set in the National Electrical Code (Tr. 33-34).
The abatement procedure, approved by MSHA, consisted of stringing an
overhead wire from the wash plant to the dryer plant and there grounding it
to the ground pins and another overhead wire from the dryer plant to the
shop, and likewise grounding it to the ground pin (Tr. 78).
There is no dispute that Applicant's electrical circuit required a
ground or equivalent protection under 35 CFR 56.12-25. There is also no
question that the circuit was grounded in the sense that it was bonded to
three pin grounds or ground electrodes (Tr. 8-9). Inspector °Clyde Brown
testified that such a ground system was in place and he never claimed that
it was not a ground as the term is defined in the regulations ~·A• (Tr.
42-43). He admitted that grounding in the aspect of accepting voltage would
occur (Tr. 35, 40). Mr. John Kavolski an electrician and an electrical
inspector for MSHA, also conceded that under the pin ground system, current
with one phase going to ground, would travel through the earth (Tr. 47-48).
(His further contention, was that depending upon the resistance of the earth,
if the current isn't sufficient it will not trip the breakers (Tr. 48)). He
agreed that the earth was part of the system and that there would be continuity in such a system (Tr. 59, 61).
The pin grounds in this instance were adequately sized according to the
National Electrica Code in all respects. The Code does not require a
metallic grounding system for a delta ungrounded system (Tr. 81, 94).

22

In substance, Applicant employed a pin ground or ground electrode system
which was installed by an electrician and which met the requirements of the
National Electric Code. I find, therefore, the Applicant's electric system
was grounded, though not grounded according to a method which MSHA demanded.
DISCUSSION

As noted above, mandatory standard 30 CFR 56.12-25, here charged,
requires that "electrical cir~uits shall be grounded or provided with
equivalent protection." The inspector alleged in his citation that a
"continuous metallic ·grounding conductor" was not provided.
The issue, however, is not whether a continuous metallic grounding conductor was provided. The standard clearly does not require this. It demands
only that the circuit be grounded or that equivalent protection be provided.
Electrical grounding is defined in 30 CFR 56.2 as meaning "to connect with
the ground to make the earth part of the circuit."
The principal argument of MSHA is that an effective grounding system
must be continuous. It cites standard 30 CFR 56.12-28 which mandates that
the "continuity and resistance" of grounding systems is to be tested; the
testimony of John Kovalski an MSHA electrical inspector; and the National
Electrical Code which provides that the path to ground from circuits, equipment and conductor enclosures shall be "permanent and continuous".
The problem with the terms "continuity" and "continuous" is that they
are not clearly defined in this record. Mr. Kovalski, upon whom MSHA so
heavily relies, failed to elaborate on the meaning of these terms when he
had the opportunity to do so (Tr. 61). Furthermore, he conceded that there
could be continuity in the pin grounding system which could be tested under
the regulations. He qualified this only by stating that such would not be
as effective as it should be (Tr. 61).
It is evident that MSHA in referring to "continuous" means a continuous
metallic conductor, but the published sources relied on do not use such
language. Moreover, MSHA appears to concede that in some instances a tie
to a ground can be sufficient if it is a cold water pipe system underground.
This, it claims, creates a metallic grid which makes the grounding system
continuous.
Finally, MSHA apparently defines the term "continuity" as meaning not
only the bonding to the ground pins, but, at least where there is a three
phase system, a continuous metallic path connecting all the phases to the
ground.
In light of the above, it appears to me that MSHA is attempting to
require performance which is not specified in the standard. ];/ The standard,
1/ It seems to me if MSHA believes that the a continuous metallic ground
conductor is a more effective and therefore a better and safer ground for
the ungrounded delta system, the mandatory standards should specifically
require its use.

23

fairly read, requires only a "ground" or its equivalent. It does not mandate a
particular ground such as that mentioned in the citation, i.e., a "continuous
metallic grounding conductor." The operator, moreover, has had no notice of
any requirement under this standard other than to provide a "ground" or its
equivalent.
In this instance the operator has provided a "ground." As noted, the
standard requires only that the circuit be grounded and this the operator
has done. It employed a qualified electrical contractor to install the
system and the circuit met the requirements of the National Electrical Code
for grounding.
Accordingly, I find and conclude that the charge in each docket of a
violation of 30 CFR 56.12-25 has not been sustained and the citations should
be dismissed. Further relief, as requested, is denied.
ORDER
It is ordered that Citation Nos. 292383 in LAKE 79-80-RM and 292384 in
LAKE 79-81-RM be and hereby are vacated.
It is further ordered that these proceedings be dismissed.

G~/.?~
Franklin P. Michels
Administrative Law Judge
Distribution:
Thomas J. O'Toole, Esq., O'Toole, Stevens, Schuler, Johnson, Piasecki
& Knowlton, 175 West Apple, Muskegon, MI 49443 (Certified Mail)
Karl Overman,Esq., Office of the Solicitor, U.S. Department of Labor,
231 W. Lafayette St., Rm. 57, Detroit, MI 48226 (Certified Mail)

24

FEDERAL Ma.~E SAFETY AND HEALTH REVIE\-. COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 1-4 1980
Civil Penalty Proceeding

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

Docket Nos.

Assessment Control Nos.

Petitioner

v.

NORT 78-325-P
Moss No. 2 Mine

44-00281-02018F

CLINCHFIELD COAL COMPANY,
44-00280-02022V
NORT 78-364-P
44-00280-02023V
NORT 78-365-P
NORT 78-366-P
44-00280-02024V
Camp Branch No. 1 Mine

Respondent

NORT 78-367-P
44-00279-02012V
Chaney Creek No. 2 Mine
NORT 78-368-P
44-01773-02010V
Hurricane Creek Mine
NORT 78-369-P
44-00267-02019V
Open Fork No. 2 Mine
NORT 78-376-P
44-00241-02013F
Lambert Fork Mine
DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor, Department
of Labor, for Petitioner;
Gary W. Callahan, Esq., Lebanon, Virginia, for Respondent.

Before:

Administrative Law Judg~ Steffey

Pursuant to written notice dated August 16, 1978, as amended August 28,
1978, a hearing in the above-entitled consolidated proceeding 1/ was held on
November 28 and 29, 1978, in Abingdon, Virginia, under section-105(d) of the
Federal Mine Sa~ety and Health Act of 1977.
1/ At the time the notice of hearing was issued, MSHA's Petition for Assessment of Civil Penalty in Docket No. NORT 78-376-P was a part of this consolidated proceeding, but on November 8, 1978, counsel for MSHA filed a motion
for approval of settlement in Docket No. NORT 78-376-P. I issued on
November 14, 1978, a decision approving the settlement agreement reached by
the parties with respect to MSHA's Petition in Docket No. NORT 78-376-P and
severed alt matters concerning the issues in Docket No. 78-376-P from this
consolidated proceeding.

25

All of the Petitions for Assessment of Civil Penalty in the d-0cket
numbers listed in the caption of this decision were filed on June 22, 1978,
except the Petition in Docket No. NORT 78-325-P which was filed on May 12,
1978. All of the Petitions seek assessment of a civil penalty for a single
violation of the mandatory health and safety standards except for the Petition filed in Docket No. NORT 78-366-P which seeks assessment of civil
penalties for two alleged violations.
Counsel for MSHA filed on February 26, 1979, a posthearing brief with
respect to the issues raised in each docket except for Docket Nos.
NORT 78-366-P and NORT 78-368-P. Counsel for MSHA did not file briefs in
Docket Nos. NORT 78-366-P and NORT 78-368-P because, during the hearing, he
had orally made motions for approval of settlement with respect to those
two cases. Counsel for Respondent filed posthearing briefs on March 1,
1979, with respect to the issues raised in all dockets except for the issues
raised in the two cases in which the parties had entered into settlement
agreements. Counsel for Respondent did not file a brief in Docket No.
NORT 78-369-P, but there is nothing in the official files to show whether
the failure to file a brief in that docket was by inadvertence or for some
other reason.
Issues
The issues raised by the Petitions for Assessment of Civil Penalty are
whether violations of the mandatory health and safety standards occurred and,
if so, what monetary penalties should be assessed, based on the six criteria
set forth in section llO(i) of the Act. Four of the six criteria may usually
be given a general evaluation, but in this particular proceeding only two of
the criteria may readily be considered on a general basis so as to make such
generalized consideration applicable to all of the violations which were
alleged in each docket. The two criteria which may be given a general
evaluation are the size of Respondent's business and the question of whether
the payment of penalties would cause Respondent to discontinue in business.
The remaining four criteria, namely, Respondent's good faith effort to
achieve rapid compliance, Respondent's negligence, if any, the gravity of
the alleged violations, and Respondent's history of previous violations, will
be considered on an individual basis in each docket when the parties' evidentiary presentations are hereinafter reviewed. The two criteria concerning
the size of Respondent's business and whether the payment of penalties would
cause Respondent to discontinue in business are considered below.
Size of Respondent's Business
Five of Respondent's mines were the subject of the Petitions filed by
MSHA in this consolidated proceeding. Respondent's Moss No. 2 Mine is one
of the largest coal mines in the State of Virginia. It employs approximately
350 miners to produce from 2,500 to 3,000 tons of coal per day (Tr. 15).
Respondent's Camp Branch No. 1 Mine employs about 185 miners to produce
approximatley 1,200 tons of coal per day (Tr. 254-255). Respondent's Chaney
Creek No. 2 Mine employs approximately 150 miners to produce about 1,300 tons

26

of coal per day (Tr. 477). Respondent's Open Fork No. 2 Mine employs about
150 miners to produce approximately 1,400 tons of coal per day (Tr. 524).
There are no data in the record to show the size of Respondent's Hurricane
Creek Mine because the Petition filed with respect to that mine was the subject of a motion for approval of settlement. Since the data already in the
record supported a finding that Respondent operates a large coal business,
no evidence was given with the respect to the size of Respondent's Hurricane
Creek Mine. It was stipulated that Respondent is a part of the Pittston
Coal Group (Tr~ 16). On the basis of the foregoing facts, I find that
Respondent operates a large coal business and that any penalties which may
hereinafter be assessed in this proceeding should be in an upper range of
magnitude insofar as they are determined under the criterion of the size of
Respondent's business.
Effect of Penalties on Operator's Ability to Continue in Business
Respondent's counsel did not present any evidence at the hearing with
respect to Respondent's financial condition. In Buffalo Mining Co., 2 IBMA
226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974), the former
Board of Mine Operations Appeals held that when a Respondent fails to present
any evidence concerning its financial condition, a judge may presume that
payment of penalties would not cause Respondent to discontinue in business.
In the absence of any specific evidence to the contrary, I find that payment
of penalties will not cause Respondent to discontinue in business.
The Settlement Agreements
Docket No. NORT 78-366-P (Camp Branch No. 1 Mine)
Order No. 1 CAG (7-46) September 6, 1977, section 75.400 (Exhibit M-18)
Order No. 1 CAG cited a violation of section 75.400 because float coal
dust and loose coal accumulations existed in depths ranging from 1/8 inch
to 2 inches along various conveyor belts for a distance of about 4,800 feet.
The Assessment Office waived the formula normally used in assessing penalties
and made findings as to the six criteria to support a proposed penalty of
$4,000.
Counsel for MSHA stated that Respondent had offered to pay a penalty of
$2,000 in settlement of the violation of section 75.400 alleged in Order
No. 1 CAG. MSHA's counsel said that he was willing to accept the offer of
settlement becau~e MSHA personnel who were acquainted with the facts at the
time Order No. 1 CAG was written had explained to him that a very serious
roof problem had developed in a portion of the mine. Management had consulted
with MSHA personnel and everyone agreed that the section with the bad roof
should be abandoned because of the deteriorating condition of the roof.
While the mine's personnel were engaged in removing the conveyor belt so that
the section could be abandoned, the loose coal and float coal dust accumulated, but the urgency of the abandonment operations was believed to have
priority over the cleaning up of the accumulations. MSHA's counsel noted

27

that the Assessment Office did not have the aforementioned extenuating facts
in its possession when it proposed a penalty of $4,000 for the violation
cited in Order No. 1 CAG (Tr. 463-466).
As has been found above, Respondent is a large operator. There was a
good faith effort made to achieve rapid compliance with respect to Order
No. 1 CAG. Respondent was nonnegligent in the circumstances. Exhibit M-12
shows that Respondent has paid penalties for 43 prior violations of section
75.400 at its Camp Branch No. 1 Mine. Exhibit M-12 also shows, however,
that Respondent violated section 75.400 only three times during the first
8 months of 1977. That is an especially good trend in reducing the number of
violations of section 75.400 and warrants acceptance of Respondent's proposed settlement· with respect to the violation of section 75.400 alleged in
Order No. 1 CAG.
Order No. 2 CAG (7-47) September 19, 1977 section 75.301-4 (Exhibit M-21)
Order No. 2 CAG alleged that section 75.301-4 had been violated because
the velocity of the air reaching the working face of the No. 2 pillar split
in the 2 Right Section off the 8 Left Mains was too low to be measured with
an anemometer. The Assessment Office waived the usual formula employed for
determining civil penalties and made findings as to the six criteria to
support a proposed penalty of $4,000.
MSHA's counsel stated that Respondent had offered to settle the issues
raised by Order No.' 2 CAG by paying a civil penalty of $2,500. Although the
Camp Branch No. 1 Mine releases some methane, there have been no explosive
quantities of methane found in the mine. Consequently, the primary factor
to be considered in assessing a penalty is that absence of a sufficient air
velocity exposed the miners to the possibility of contracting pneumoconiosis.
In such circumstances, MSHA's counsel expressed the opinion that the Assessment Office had not shown sufficient gravity to warrant imposition of a
penalty of $4,000 and he moved that the settlement offer of $2,500 be
approved (Tr. 466-467).
As previously shown above, Respondent is a large operator. There was
a rapid good faith effort to achieve compliance as the alleged violation was
corrected within a period of 45 minutes. There was ordinary negligence.
Exhibit M-13 shows that Respondent has paid penalties for four previous violations of section 75.301-4 at its Camp Branch No. 1 Mine, but Exhibit M-12
also reflects that Respondent has not violated section 75.301-4 at its Camp
Branch No. 1 Mine since November 30, 1976. In such circumstances, the facts
support approval· of Respondent's offer to pay a penalty of $2,500 for the
violation of section 75.301-4 alleged in Order No. 2 CAG.
Docket No. NORT.78-368-P (Hurricane Creek Mine)
Notice No. 1 VH (7-28) August 1, 1977 section 75.200 (Exhibit M-27)
Notice No. 1 VH alleged that a violation of section 75.200 had occurred
because Respondent had failed to comply with its roof-control plan in that

28

the face of the left crosscut off No. 3 entry had been advanced 29 feet but
only two rows of roof bolts had been installed in the last 14 feet of
supported roof. The Assessment Office waived the formula which is normally
used in determining penalties and made findings with respect to the six
criteria to support a proposed penalty of $1,500.
MSHA's counsel stated that Respondent had offered to settle this
alleged violation of section 75.200 by paying a penalty of $1,250. MSHA's
counsel said that the only extenuating circumstances were that the roof
appeared to be sound and that the violation consisted of Respondent's failure
to install two additional rows of roof bolts in an area from which coal had
recently been extracted by the continuous-mining machine. The violation had
not apparently exposed anyone to a serious threat and MSHA's counsel
expressed the belief that a penalty of $1,250 was adequate in the circumstances (Tr. 468-472).
As has been found above, Respondent is a large operator. There was a
good faith effort to achieve rapid compliance because the alleged violation
was corrected within an hour after the notice was written. There was ordinary negligence. Exhibit M-26 shows that Respondent has paid penalties for
12 prior violations of section 75.200 at its Hurricane Creek Mine, but only
one violation occurred in 1975, none in 1976, and only one occurred in 1977
prior to the violation alleged in Notice No. 1 VH. I do not condone any
violations of section 75.200, but the evidence shows that Respondent is
making an effort to eliminate violations of section 75.200 at its Hurricane
Creek Mine. The aforesaid findings warrant approval of Respondent's offer
of settlement with respect to the violation of section 75.200 cited in
Notice No. 1 VH.
The Contested Cases
Docket No. NORT 78-325-P (Moss No. 2 Mine)
Notice No. 1 WJT (6-85) December 21, 1976 section 75.1403-10 (Exhibit M-7)
Findings. Section 75.1403-10, to the extent here pertinent, requires
that a permissible trip light or other approved device, such as reflectors,
be used on the rear of coal cars pulled by locomotives. Respondent violated
section 75.1403-10 because no light or reflector had been placed on the last
or 17th car of a line of loaded coal cars being pulled in Respondent's mine
(Tr. 14). The violation was ·very serious because the train of cars became
stalled on the main track leading to the dumping point and the unlighted end
of the train of ·cars was hit by another locomotive pushing an empty car
(Tr. 41; 152). The impact of the collision drove the empty car back upon
the operator of the locomotive. The empty car came to rest upon the locomotive operator and caused his death by suffocation (Tr. 60-61; 80-81).
Respondent was grossly negligent in failing to provide a proper reflector on
the end of the train of loaded coal cars (Tr. 44-45; 47).
Discussion and Conclusions. Respondent's brief (pp. 8-9) contends that
MSHA failed to prove that the death of the locomotive operator was the result

29

of Respondent's failure to provide a reflector or other light on the end of
the 17th car of coal. Respondent argues that the locomotive which was pushing the empty car was 1 inch higher than the empty car and that the operator
of the locomotive would hav~ had to have been crouched down to avoid the cold
air in the track haulageway and would have had to have been unobservant to
have run into the rear of a loaded coal car which was 8 feet wide and
30 inches high. It is true that no one saw the operator of the locomotive
just before the collision and it is possible that he was not alert in performing his job, but the coal car was not a bright color and it is a fact
that the end of the car was not equipped with a light or reflector which
might have caught the locomotive operator's attention in time for him to have
stopped before colliding with the end of the coal car (Tr. 117; 130; 148).
Respondent's superintendent testified that before becoming a supervisor,
he had been a locomotive operator for about 20 years, and that it is the
practice for motormen to crouch low in the locomotives to avoid the cold air
in the haulageway and thereby get only occasional glimpses of the track in
front of them (Tr. 135; 140-141; 148). It is management's obligation to
train its operators to look where they are going and to provide them with
such shields or goggles as may be necessary to withstand the cold air and
still enable them to operate the locomotives in a safe manner. The deceased
operator may well have been following the example of the superintendent and
may have assumed that nothing would be on the track in front of him. Nevertheless, I must reject the defense that Respondent cannot be held to be
negligent because of the claim that the deceased operator of the locomotive
would have seen the unlighted stationary coal car if he had been observant.
It is true, as Respondent notes in its brief (p. 6), that one of MSHA's
witnesses expressed the belief that a trip light would not have helped the
deceased operator of the locomotive (Tr. 69). On the other hand, two of
MSHA's witnesses believed that a trip light would have assisted in preventing
the fatal accident (Tr. 117; 130). In fact, one inspector believed that the
fact that there was no trip light and the fact that the deceased locomotive
operator was pushing (instead of pulling) an empty car were the direct causes
of the fatal accident (Tr. 131-132). Respondent can hardly expect to avoid
liability for the fatal accident by claiming that it had failed to train the
deceased operator of the locomotive to look where he was going and had also
failed to instruct him in safe operating procedures, that is, to pull cars
on the main line instead of pushing them (Tr. 132).
MSHA's brief (p. 9) recommends that a penalty of $9,000 be assessed for
this violation of section 75.1403-10. I believe that a penalty of $9,000 is
warranted. None of the facts associated with the fatal accident are favorable to Respondent's management. The locomotive which was stalled was not
functioning properly at the time the dispatcher suggested to its operator
that he take a trip of 17 loaded cars to the loading point (Tr. 94). The
locomotive had just come from the repair shop and should have been returned
there for further repairs (Tr. 92). The operator of the locomotive which
stalled did not report to the dispatcher that the train was stopped (Tr. 97).
There was speculation that the locomotive operator's failure to call the

30

dispatcher was related to a discharged battery, but MSHA's electrical inspector testified that locomotive phones or radios depend on the trolley wire
for power rather than batteries (Tr. 96; 122). In any event, the operator
of the stalled locomotive was able to talk to the dispatcher after the fatal
accident occurred (Tr. 101). Thus, the events leading up to the occurrence
of the fatal accident all indicate that Respondent's management had failed
to train its personnel in proper safety procedures. The lack of lights or
reflectors on the end of the 17th car was not the only negligent act which
caused the fatal accident, but the unmarked car was certainly a contributing
cause of the accident.and may have been the sole reason for the deceased
operator's failure to see the 17th car in time to avoid the collision which
resulted in his death.
Respondent's brief (p. 6) argues that failure to have a trip light or
reflector on the end of the loaded car was not a serious violation, but no
safety violation can be judged in a vacuum. The failure to have a reflector
on a coal car in a well-lighted place is nonserious, but when that same car
is stalled in total darkness on a main track in a coal mine, where 10 tram
locomotives and six supply locomotives are operated, the failure to equip
the car with a reflector is a very serious violation (Tr. 149).
In assessing a penalty of $9,000, I am bearing in mind that a large
operator is involved (Tr. 15-16), that there was a good faith effort to
achieve rapid compliance after the violation was cited (Tr. 52), and that
Respondent has violated section 75.1403-10 on only two previous occasions
(Exh. M-1, p. 5). The two criteria of gravity and negligence require that a
high penalty be assessed. It should be noted that Respondent repeatedly
failed to provide trip lights. On October 10, 1973, an inspector issued a
notice to provide safeguards requiring Respondent to install trip lights on
the ends of coal cars (Exh. M-2; Tr. 22). Yet, over 3 years later, Respondent was using coal cars in its mine without equipping them with proper
reflectors (Tr. 130; 133). I consider the failure to comply with section
75.1403-10 in such circumstances to be the result of gross negligence and
the penalty of $9,000 recommended by MSHA will hereinafter be imposed for
this violation.
Docket No. NORT 78-364-P (Camp Branch No. 1 Mine)
Notice No. 1 CAG (7-38) June 21, 1977 section 75.317 (Exhibit M-13)
Findings. Notice No. 1 CAG dated June 21, 1977, alleged that Respondent had violated 30 CFR 75.317 because (Exh. M-13):
Five foremen entered underground with flame safety
lights that had not been tested in a gas box provided for
that purpose to insure that such lamps were in a permissible
condition and could not ignite the outside atmosphere of such
lamps. This violation occurred despite the fact that this
requirement of the regulations was discussed with mine
management on June 15, 1977, with the hope that this requirement would not be violated.

31

Section 75.317 states as follows:
Each operator shall provide for the proper maintenance
and care of the permissible flame safety lamp or any other
approved device for detecting methane and oxygen deficiency by
a person trained in such maintenance, and, before each shift,
care shall be taken to insure that such lamp or other device
is in a permissible condition.
The inspector's notice alleged that Respondent's foremen had not tested
their flame safety lamps in a gas box to insure that such lamps were in a
permissible condition. There is nothing in the language of section 75.317
which requires that a flame safety lamp be tested in a gas box to insure
permissibility. In fact, the unrebutted testimony of Respondent's witness
Strong, who has a mining engineering degree (Tr. 338), shows that once the
light in a flame safety lamp has been extinguished by being placed in a box
containing methane, the lamp may be rendered nonpermissible by such testing
and the lamp should then be removed from the gas box and be disassembled,
examined, defective parts, if any, replaced, and reassembled in order to
restore the lamp's permissibility (Tr. 342). !/
The inspector's notice citing a violation of section 75.317 is based
solely on an allegation that Respondent's foremen had not checked the
permissibility of their lamps by testing them in a gas box. Since the evidence shows that placing flame safety lamps in a gas box may destroy their
permissibility instead of insuring permissibility, I find that use of a gas
box for testing permissibility is an undesirable procedure. Therefore, the
alleged violation of section 75.317 cited in Notice No. 1 GAG cannot be
sustained.
Discussion and Conclusions. MSHA 1 s brief (p. 3) argues that a violation
of section 75.317 was proven because it is undisputed that all five foremen
failed to check the permissibility of their lamps by placing them in the gas
box. As I have already found above, failure to place a flame safety lamp in
a gas box to test permissibility is not a violation of section 75.317.
MSHA's brief attempts, alternatively, to prove that a violation of section
75.317 occurred by alleging that at least one of the five foremen admitted
that he had not cleaned his flame safety lamp before going underground (Tr.
307).
There are several reasons for rejecting MSHA 1 s claim that Notice No.
1 GAG should be ?Ustained because one of the 'foremen admitted that he had not
cleaned his flame safety lamp. First, there is nothing in the pleadings to
show that Respondent was advised that the inspector was claiming that a violation had occurred because of the failure of one foreman to clean his lamp

!I

According to 30 CFR 21.6(a)(2)(ii), MSHA 1 s laboratory personnel reexamine
the interior of a lamp to redetermine its permissibility after a lighted lamp
has been extinguished by having been placed in a gaseous atmosphere.

32

before going underground. The former Board of Mine Operations Appeals held
in Old Ben Coal Co., 4 IBMA 198, 208 (1975), that MSHA must give Respondent
notice of the violation which is being charged so that it can prepare a
proper defense. I cannot accept MSHA's attempt to sustain a violation of
section 75.317 based on an entirely different reason from the one alleged by
the inspector when he wrote the notice which is the basis for the Petition
for Assessment of Civil Penalty filed in Docket No. NORT 78-364-P.
The second reason for rejecting MSHA's claim that a violation of section 75.317 occurred because one foreman had not cleaned his lamp before
going underground is that the inspector himself knew little about the condition of the flame safety lamps. The inspector first stated that he did not
examine the lamps to determine whether they had been cleaned (Tr. 260).
Thereafter he claimed that he could on the basis of experience and general
observation attest to the fact that all five flame safety lamps were dirty
(Tr. 294). Yet, one of Respondent's foremen testified that he had cleaned
his lamp and had lighted it while the inspector was in the mine office (Tr.
319), so there is evidence in the record to rebut the inspector's claim that
his general observation was sufficient for him to conclude that all five
lamps were dirty. Additionally, one of the witnesses subpoened by MSHA's
counsel testified that he was with the inspector and had observed the lamps,
but that he could not say that they were either dirty or clean (Tr. 308).
That same subpoened witness introduced the only specific facts in the
record about a dirty lamp by testifying that one of the foremen stated that
he had not cleaned his lamp before going.underground (Tr. 307). The failure
of one foreman to clean his lamp falls short of proving that the lamp was
nonpermissible. The foregoing conclusion is supported by the testimony of
one of Respondent's foremen who said that he sometimes cleans his lamp every
other shift. He testified that the lamp held enough fuel to last for two
shifts and that since no one used the lamp but him, he was sure it was permissible for use on two shifts. Thus, the failure to clean a lamp immediately prior to going underground does not necessarily mean that the lamp is
nonpermissible. It is true that the flame in one of the five lamps could
not be ignited, but the inspector said that the failure of the lamp to ignite
had nothing to do with his claim that a violation of section 75.317 had
occurred (Tr. 292).
Respondent's brief (pp. 7-9) argues that Notice No. 1 CAG should be
vacated because the inspector issued the notice under the unwarrantable
failure provisions of section 104(c)(l) of the Federal Coal Mine Health and
Safety Act of 1~69 and Respond.ent claims that the inspector failed to show
that the violation was unwarrantable. The former Board's holdings that the
validity of a notice issued under the 1969 Act is not an issue in a civil
penalty proceeding has been upheld by the Commission in MSHA v. Wolf Creek
Collieries Co., Docket No. PIKE 78-70-P, 79-3-11, and in-p()rltiki Coal Corp.
v. MSHA, Docket No. PIKE 78-420-P, 79-10-13. Therefore, it would be improper
for-;e-to address Respondent's argument that Notice No. 1 CAG was shown by
the evidence in this case to have been erroneously issued under section
104(c)(l) of the 1969 Act.

33

As a part of my finding that section 75.317 is not violated when an
operator fails to test the permissibility of a flame safety lamp by placing
it in a gas box, it is desirable, however, that I discuss the ramifications
which accompany an inspector's failure to understand the intended use of a
gas box. The inspector placed a lot of emphasis on the fact that he had
warned Respondent's management on June 15, 1977, that they were not using
the gas box to test permissibility of flame safety lamps (Tr. 256). The
inspector advised management on June 15 that. he would make further checks to
determine whether they were testing permissibility of the lamps by placing
them in the gas box. On June 21, 1977, the inspector returned to the mine
and wrote the notice here involved after observing five foremen go underground without having tested their lamps in a gas box (Tr. 251).
Respondent's mine superintendent testified that they did test the flame
safety lamps by placing them in the gas box for a short period of time after
the notice was issued, pending consideration of the matter by Respondent's
safety department. The safety department subsequently advised the superindendent that testing the lamps in the gas box was not required for compliance
with section 75.317 and all further testing by use of the gas box was
discontinued (Tr. 347).
The inspector issued the notice here involved at 12:15 a.m. when
Respondent's superintendent was at home because the superintendent works the
day shift instead of the midnight-to-8 a.m. shift during which the notice
was issued. Respondent's superintendent testified that if he had been at the
mine, he would not have permitted the lampd to be tested on June 21 by placing them in the gas box because Respondent did not then have a tank of
methane at the mine for injection of gas into the box. For that reason, the
foremen on June 2~, in order to satisfy the inspector's requirement that the
lamps be tested by placing them in the gas box, used a tank of acetylene to
test the lamps. The superintendent stated that acetylene is much more
explosive than methane and that it was hazardous for the men to use acetylene
for the purpose of testing permissibility by insertion of the lamps into the
box (Tr. 347).
The evidence also shows that Respondent did not have the gas box at its
Camp Branch No. 1 Mine for the purpose of testing permissibility of flame
safety lamps. A gas box is used by the State of Virginia as part of the
testing given to persons who wish to become certified mine foremen. The
purpose of the gas box is to have the prospective foremen demonstrate how
the flame in the lamp will react when it comes into contact with methane in
the mine. A hal.o effect forms around the flame as a warning to a person
carrying the lamp that methane is present (Tr. 310; 321). Respondent's
superintendent testified that the gas box was kept at the mine in a room
used by State and Federal personnel to test employees for competency in performing gas tests, rather than for the purpose of checking permissibility of
flame safety lamps (Tr. 345). Therefore, the inspector misunderstood the
reason that the gas box was kept at the mine and consequently incorrectly
stated in his notice that Respondent failed to check permissibility of the
flame safety lamps by placing them in "a gas box provided for that purpose"

34

(Exh. M-13). Moreover. the gas box was not kept near the mine office where
the flame safety lamps were maintained, but was kept in a building which was
about a half mile from the mine office (Tr. 345). That location in itself
was an indication that Respondent did not keep the gas box at the mine for
the purpose of testing permissibility of flame safety lamps.
A final reason for declining to uphold the inspector's citation of a
violation of section 75.317 lies in the fact that the inspector admitted
that not all operators have gas boxes and that permissibility can be established at mines without gas boxes simply by disassembling the lamps, inspecting them, cleaning them, replacing defective parts, if any, and reassembling
them. The inspector's concession that cleaning and inspecting are sufficient
to establish permissibility if an operator has no gas box, but that placing
them in a gas box is required when the operator has a gas box, would produce
a disparity in the degree of permissibility and safety of flame safety lamps,
depending on which operators have gas boxes at their mines (Tr. 292-293).
Fortunately, the evidence in this proceeding shows that gas boxes should not
be used at all to test permissibility, so permissibility of flame safety
lamps at all mines is assured by careful cleaning and examining of the lamps
before they are taken underground. Specifically, permissibility may be
insured as required by section 75.317 by (1) opening the lamps with a special
magnet, (2) checking and cleaning the leather gasket, gauze ring, asbestos
rings, pyrex globe, gauzes, nuts, boot, and bonnet, and (3) replacing any of
the aforementioned parts, prior to reassembly, which show any sign of defectiveness (Tr. 339-342).
The testimony of John W. Crawford, who was Respondent's director of
health and safety at the time the hearing was held, and who had formerly been
the district manager of MSHA's Norton Office and assistant administrator of
the Mining Enforcement and Safety Administration, was also significant. He
stated that it is not Pittston Company's policy to use a gas box to test for
permissibility because that kind of test is not required by section 75.317,
that it was not the practice of the inspectors, when he was district manager,
for them to use a gas box to test permissibility of their flame safety lamps,
and that the gas box was supposed to be used to tune one's eye to the appearance of the flame when it was subjected to a gaseous atmosphere (Tr. 325-329).
For the foregoing reasons, I find that the violation of section 75.317
alleged in Notice No. 1 CAG dated June 21, 1977, was not proven. Therefore,
MSHA's Petition for Assessment of Civil Penalty in Docket No. NORT 78-364-P
will hereinafter be dismissed because the sole civil penalty sought to be
assessed in that. docket was the violation of section 75.317 alleged in
Notice No. 1 CAG issued June 21, 1977.
Docket No. NORT 78-365-P (Camp Branch No. 1 Mine)
Order No. 2 CAG (7-15) January 31, 1977 section 75.400 (Exhibit M-15)
Findings. Section 75.400 provides that coal dust, including float coal
dust deposited on rock-dusted surfaces, loose coal, and other combustible

35

materials, shall be cleaned up and not be permitted to accumulate in active
workings. Respondent violated section 75.400 because float coal dust and
loose coal had been permitted to accumulate in two areas of Respondent's
mine. One location was inby the 8 Left Mains tailpiece for a distance of
500 feet. The second location was inby Survey Station No. 3006 in the No. 3
entry of the 3 Right off 8 Mains and in the Nos. 1 and 2 entries of 2 Right
off 8 Mains. In both the 3 Right and 2 Right sections, the accumulations
existed at crosscuts for a distance of 1,100 feet. The accumulations ranged
in depth from 1/4 inch to 20 inches (Tr. 355-356). The accumulations constituted a serious violation because the float coal dust could have propagated an explosion if one had occurred.
A trolley wire constituted a potential ignition source in the first area
of accumulations in the 8 Left Mains and at least one high-voltage disconnect
switch was a possible ignition source in the second area of accumulations in
2 Right and 3 Right Sections. The ignition sources would have posed a threat
of an explosion if methane in an explosive quantity had accumulated in the
vicinity of the trolley wire or disconnect switch (Tr. 371). Float coal
dust, if thrown into suspension, may explode in the presence of a spark.
At the time the order was written, the areas where the accumulations
were observed were traveled mostly for inspections and served as a transfer
point for coal produced from other parts of the mine, but the accumulations
had originally occurred during active mining operations and had remained a
potential explosive threat for a period of several months. The violation
was the result of gross negligence because the coal accumulations were being
deliberately left in the areas cited in Order No. 2 CAG because Respondent's
continuous-mining equipment then being used was unable to extend far enough
to extract coal from crosscuts and clean up the residual coal left at such
break-through points (Tr. 364-365; 432). Moreover, one of the reasons that
the accumulations were not cleaned up was that Respondent was unable to get
its roof-bolting equipment into the areas where the accumulations existed
for the purpose of installing roof bolts. For the foregoing reason, it
would have been hazardous for Respondent to have cleaned up the accumulations because such clean-up would have required that miners work under
unsupported roof (Tr. 369).
Discussion and Conclusions. Respondent's brief filed in Docket No.
NORT 78-365-P recommends for my consideration a large number of findings of
fact, but does not contain a discussion of the six criteria or make any
recommendations as to whether a penalty should or should not be assessed.
Petitioner's brief contends that a maximum penalty of $10,000 should be
assessed because.the coal accumulations had been in existence for a long
period of time and were associated with Respondent's failure to comply with
the provisions of its roof-control plan (Br., p. 5).
There is some merit in Petitioner's argument that a maximum penalty
should be assessed for this violation of section 75.400. Even the two
witnesses presented by Respondent corroborated the inspector's statement
that accumulations existed (Tr. 413; 430-432). Still, it is a fact that the

36

inspector was unable to show that the ignition sources were located within
the actual area of the accumulations. Therefore, the inspector felt that
the likelihood of an explosion depended on the presence in the vicinity of
the trolley wire or disconnect switch of an explosive quantity of methane.
Respondent's Camp Branch No. 1 Mine has historically liberated such a small
amount of methane, that it has not been detected with a hand-held methanometer, but from .01 to .03 of 1 percent of methane has been detected through
analyses of bottle samples (Tr. 376). Nevertheless, all mines are classified as gassy under the Act and a mine which liberates any methane could have
a concentration large.enough to cause an explosion which, in turn, could be
propagated by the existence of float coal dust in quantities such as were
described in the inspector's order (Tr. 378). As the Commission pointed out
in its decision in MSHA v. Old Ben Coal Co., 79-12-4, one of the primary
purposes of the Act--rs-to prevent death and injury from fire and explosions.
In that case, the Commission also held that the mere existence of combustible
materials constitutes a violation of section 75.400. Consequently, the
inspector no longer has to satisfy the prerequisites set forth by the former
Board of Mine Operations Appeals in Old Ben Coal Co., 8 IBMA 98 (1977), in
order to prove that a violation of section 75.400 occurred.
Despite the foregoing considerations, the inspector appeared to have
considerable difficulty in supporting his belief that the accumulations were
very hazardous in this instance because he was faced with the remoteness of
the ignition sources to the accumulations and with the fact that he had
observed no defects in the physical condition of those potential ignition
sources (Tr. 362; 381-382). A countervailing consideration is the fact that
one of Respondent's witnesses agreed with the inspector that the disconnect
switch was supposed to be in a neutral split of air, but through a mistake
in the way the ventilation curtains had been installed, the disconnect switch
was in return air (Tr. 383; 440). Therefore, the area was more susceptible
to a possible methane accumulation than it would have been if the area had
been properly ventilated. When all aspects of the accumulations are evaluated, the only conclusion which one can reach is that the accumulations constituted a serious threat to the miners' safety.
A consideration of Respondent's negligence shows that Respondent
deliberately failed to clean up the accumulations because the mining equipment it was then using would extend only 200 feet and that was not a sufficient distance to permit the crosscuts to be completed without leaving
accumulations of loose coal at such break-through points (Tr. 442-443; 451).
A mitigating factor about the equipment is that Respondent recognized the
equipment's hazardous limitations and has now ceased to use that type of
equipment in its· mine in order to avoid occurrence of the kinds of accumulations which were cited in the inspector's order (Tr. 460). As Petitioner
notes in its brief, Respondent's failure to support the roof in the area of
the accumulations was another aspect of the coal accumulations which augumented both the seriousness and negligence associated with occurrence of the
coal accumulations.
The extent of the accumulations is emphasized by the fact that three
consecutive shifts of miners worked around the clock for 3 days in applying

37

enough rock dust in the areas cited in the inspector's order to render the
accumulations sufficiently inert to eliminate their threat to the .miner_s'
safety (Tr. 455-456).
In view of the fact that the accumulations were extensive and were the
result of a deliberate pattern of mining which necessarily resulted in such
accumulations, a penalty of $8,000 is warranted and will hereinafter be
imposed. The penalty of $8,000 also takes into consideration that Respondent
is a large operator and that Respondent's Camp Branch No. 1 Mine has an
unfavorable history of previous violations because Exhibit No. M-12 shows
that 41 previous violations of section 75.400 have occurred at the Camp
Branch No. 1 Mine. Since 10 of those 41 violations occurred in 1976, there
is no mitigating downward trend in Respondent's proclivity for violating
section 75.400. Therefore, assessment of a large penalty of $8,000 seems to
be necessary in this instance to achieve the deterrent effect which imposition of civil penalties was intended to accomplish.
Docket No. NORT 78-367-P (Chaney Creek No. 2 Mine)
Notice No. 1 KCK (7-95) November 17, 1977 section 75.501-2(2) (Exhibit M-24)
Findings. Section 75.501-2(2) provides in pertinent part that all
hand-held drills taken into or used inby the last open crosscut shall be permissible. Respondent violated section 75.501-2(2) because its electricians
were using a 3/8-horsepower, hand-held nonpermissible drill inby the last
open crosscut to drill holes in headless bolts to facilitate their removal
by means of a screw extractor or "easy out". The violation was moderately
serious because methane emissions of up to .06 of 1 percent have been
detected in Respondent's Chaney Creek No. 2 Mine, but methane checks were
being made at the time the violation was cited and power for the hand-held
drill was being obtained from the continuous-mining machine which would have
deenergized the power for the electric drill if as much as 2 percent of
methane had accumulated in the atmosphere where the drilling was being done.
Respondent was grossly negligent for using the hand-held drill because the
electricians knew that it was a nonpermissible drill and were obligated to
evaluate the conditions under which they were deliberately using a drill
which emitted sparks when it was running (Tr. 478; 486; 491; 508; 515).
Discussion and Conclusions. Respondent's brief raises two primary
defenses with respect to MSHA's claim that a violation of section 75.501-2(2)
occurred. Respondent's first defense (Br., pp. 5-6) is based on the preliminary observation that using a nonpermissible drill is less dangerous than
using a cutting torch or welding equipment under ground. Respondent's argument continues by pointing out that section 75.1106 would have permitted
Respondent to use a welding machine for removal of the headless bolts,
whereas section 75.501~2(2) entirely prohibits the removal of the bolts by a
less dangerous means, namely, use of a nonpermissible hand-held drill. The
mere fact that the regulations permit cutting and welding to be done under
certain controlled conditions does not remove the danger associated with use
of nonpermissible equipment. As the inspector noted, it is always possible

38

for methane to.accumulate in an explosive quantity despite the fact that
only .06 of 1 percent of methane was detected by the inspector at the time
he wrote Notice No. 1 KCK (Tr. 480; 486; 491).
Respondent had an option of using a welding machine to remove the bolts,
but if Respondent had done so, it would have been obligated to follow the
precise provisions of section 75.1106 which require that a check for methane
be maintained on a continuous basis. Such welding or cutting is entirely
prohibited if as much as 1 percent of methane is encountered and Respondent
must have present at the welding or cutting site a suitable supply of rock
dust or fire extinguishers. Respondent's witnesses conceded that they were
not continuously testing for methane with a hand-held methane detector and,
while Respondent did have fire-suppression equipment on the continuous-mining
machine and a water hose, Respondent did not have rock dust or fire extinguishers as required by section 75.1106 (Tr. 504; 509). Therefore, Respondent was not taking precautions equivalent to those required by section
75.1106 when welding or cutting is being done. Since Respondent had not
taken the same precautions which are required by section 75.1106 when welding
or cutting is being done, Respondent cannot expect its use of the nonpermissible drill in violation of section 75.501-2(2) to be condoned.
Respondent's second defense (Br., pp. 7-9) is that the inspector's
notice was improperly issued under the unwarrantable failure provisions of
section 104(c)(l) of the Federal Coal Mine Health and Safety Act of 1969.
The Commission has already held in MSHA v. Wolk Creek Collieries Co.,
79-3-11, and in Pontiki Coal Corp. v. MSHA, 79-10-13, that the validity of
notices and orders issued under the 1969 Act are not at issue in civilpenalty proceedings. Nevertheless, since Respondent's contentions are based
essentially on arguments pertaining to the criteria of negligence and
gravity, which must be considered in civil-penalty proceedings, I shall discuss its arguments with respect to those two criteria.
Respondent argues in its brief (pp. 8-9) that the violation was not
serious because Respondent's electricians were making methane tests every
15 minutes and that the Chaney Creek No. 2 Mine does not have a history of
emitting enough methane to make the likelihood of an explosion more than a
mere possibility. As MSHA notes in its brief (p. 9), it is necessary to
consider the potential danger associated with a given violation because the
purpose of the regulations is to require that miners be protected from
possible explosions as well as those which are indisputably likely to occur.
An inspector does not have to find the existence of an imminent danger in
order to conclud~ that the use of a nonpermissible drill inby the last open
crosscut is a potentially dangerous violation (Tr. 483; 486).
Respondent's brief (p. 8) also argues that there was a very low degree
of negligence, if any, associated with the violation. The testimony shows
that Respondent's electricians were grossly negligent in using the nonpermissible drill inby the last open crosscut. While it is true that the chief
electrician said that he was unaware that the continuous-mining machine was
inby the last open crosscut and that he would not have used the nonpermissible drill if he had known that the continuous-mining machine was inby the

39

last open crossc~t (Tr. 514-515), the fact remains that the chief electrician
knew that the drill was nonpermissible. He either knew or was obligated to
know whether the machine was inby the last open crosscut. The chief electrician had been working in coal mines for over 30 years and can hardly be
found to have been nonnegligent in failing to realize that he was using a
nonpermissible drill inby the last open crosscut.
The chief electrician's use of the nonpermissible drill was also
associated with his having removed the cover on the control compartment of
the continuous-mining. machine for the purpose of obtaining electrical current
to power the nonpermissible drill (Tr. 514; 517). He stated that he was
making checks for methane every 15 minutes for the reason that he had removed
the panel cover rather than for the reason that he was using a nonpermissible
drill (Tr. 514). Respondent's safety director was hard pressed to support
the chief electrician's removal of the panel cover. The most the safety
director could say in justification of the opening of the control compartment
was that such acts are permitted if the purpose of opening the compartment is
to determine the reason for a malfunction of the continuous-mining machine.
There was no need to open the control compartment for the purpose of trouble
shooting because the electricians working on the mining machine knew what was
wrong with the machine, namely, that sheared bolts in the tracks prevented
the machine from being trammed from one location to another (Tr. 499-500).
MSHA's brief (p. 3) argues that the inspector's testimony to the effect
that a trailing cable was being used to power the hand-held drill is more
credible than that of the electrician's testimony to the effect that the
drill was being powered from an outlet located in the control compartment
beneath the panel cover which had been removed. I have found the chief
electrician's testimony to be more credible than the inspector's for several
reasons. First, in stating that he had removed the cover to the control
compartment (Tr. 514), the chief electrician was admitting that he had done
an unsafe act. It is unlikely that he would have fabricated a statement
that made him look even more negligent than he would otherwise have appeared.
Second, the electricians were very anxious to restore the continuous-mining
machine to an operating condition. Use of power from the mining machine
would have been an easy way to obtain power for the drill without the electricians' having to find a trailing cable and connect it to the main power
source in the mine. Third, at the time the inspector left the scene of the
violation, the drill was still hooked to a power source, but the drill had
been removed from the vicinity of the mining machine by the time the inspector returned (Tr. 488). The inspector, therefore, was not present when the
drill was discon~ected from its power source. The chief electrician was
certainly in a position to know what the drill's source of power really was.
Therefore, I find that the source of the drill's power was the control compartment on the continuous-mining machine. Of course, the removal of the
cover from the control compartment increased the number of potential arcing
electrical components which could have caused a fire or explosion if a
dangerous accumulation of methane had occurred.
MSHA's recommendation that a penalty of $10,000 be assessed for this
violation of section 75.501-2(2) fails to recognize many of the extenuating

40

circumstances surrounding the violation. First, the continuous-mining
machine weighed 40 tons and the inspector incorrectiy stated that a shuttle
car could have been used to pull the machine a distance of 25 to 30 feet so
as to permit the work to be done outby the last open crosscut (Tr. 492;
505-506). Second, the operator did not have the kind of hoist which would
have been required to move the machine to a point outby the last onen crosscut. Third, a period of about 3 days, or nine shifts, would have been
required to bring in another continuous-mining machine having sufficient
power to pull the inoperable machine to a point outby the last open crosscut.
Third, the inspector removed himself physically from the site of the repair
operations with the result that the electricians had time during the inspector's absence within which to continue using the nonpermissible drill for
the purpose of completing the removal of the headless bolts (Tr. 509-510;
516). Fourth, if the inspector considered the use of the nonpermissible
drill to be a very serious violation, he should have required that the drill
be immediately removed from the site of the continuous-mining machine instead
of merely advising the electricians that he would not issue a notice of violation at that tim~ and would return later for that purpose (Tr. 509-510).
Fifth, the electricians were making a methane test every 15 minutes and the
drill would have been deenergized by the continuous-mining machine's methane.
monitor if the concentration of methane in the atmosphere had reached as much
as 2 percent. MSHA's brief (p. 6) argues that the methane tests required by
section 75.1106 must continously be made by means of a hand-held methane
detector and that a methane monitor cannot be substituted for a hand-held
device. That may be true if we were determining whether a violation of section 75.1106 had occurred, but we are not here confronted with an actual
violation of section 75.1106, and MSHA introduced no evidence to controvert
the chief electrician's statement that the methane monitor on the continuousmining machine was working. Therefore, the monitior would have deenergized
the drill if methane in a concentration of 2 percent had occurred. For the
foregoing reasons, I find that the violation was not of such a serious nature
as to warrant assessment of a maximum penalty of $10,000.
MSHA's brief (p. 8) does correctly argue that Respondent's deliberate
use of the nonpermissible drill was equivalent to gross negligence. Consequently, in assessing a penalty, most of the weight in determining the
penalty must be assigned under the criterion of negligence and the criterion
of the size of Respondent's business. Respondent has not previously been
cited for a violation of section 75.501-2(2) (Tr. 477). Therefore, it is
unnecessary to consider the criterion of Respondent's history of previous
violations. There was a good faith effort to achieve rapid compliance (Tr.
488). Since Respondent operates a very large coal business and inasmuch as
its electricians· were grossly negligent in using a nonpermissible drill inby
the last open crosscut, a penalty of $2,000 will hereinafter be assessed for
this violation of section 75.501-2(2).
Docket No. NORT 78-369-P (Open Fork No. 2 Mine)
Notice No. 2 KFO (7-115) October 18, 1977 section 75.400 (Exhibit M-31)
Findings. Section 75.400 provides that coal dust, including float coal
dust deposited on rock-dusted surfaces, loose coal, and other combustible

41

materials, shall·be cleaned up and not be permitted to accumulate in active
workings. Respondent violated section 75.400 because loose coal had been
permitted to accumulate in active workings for a depth of 2 to 4 inches in
the No. 3 entry for a distance of 175 feet inby the loading point and for a
depth of from 2 to 24 inches in an adjacent crosscut for an additional distance of 60 feet, or for a total distance of 235 feet (Tr. 526-527). The
deepest coal accumulation in the crosscut had fallen from the feeder prior
to the time that the belt line had been moved (Tr. 528; 568). The loose
coal accumulations in the No. 3 entry resulted from overfilling of the
shuttle cars so that the coal was dragged off the top of the shuttle cars
as they passed through the entry on their way to the dumping point (Tr.
562; 570). The violation was moderately serious because the only ignition
sources in the vicinity of the accumulations were the trailing cables and
electrical components of the shuttle cars. The danger of a fire or explosion
was reduced because no methane was detected and the inspector observed no
defects in the shuttle cars' trailing cables (Tr. 547-548). While the
inspector found a permissibility violation in one of the shuttle cars, he
did not know if that particular shuttle car had passed through the loose coal
accumulations (Tr. 548). Respondent was grossly negligent in permitting the
accumulations to exist because Respondent's employees had to stand in the
deepest of the accumulations at the time they moved the conveyor belt and
the accumulations should have been cleaned up at that time (Tr. 532).
Discussion and Conclusions. Respondent failed to file a posthearing
brief with respect to the issues raised by MSHA's Petition for Assessment of
Civil Penalty filed in Docket No. NORT 78-369-P. MSHA's brief is primarily
devoted to demonstrating that MSHA's presentation in Docket No. NORT 78-369-P
was sufficient to satisfy the evidentiary steps for proving the existence of
a violation of section 75.400 as those steps were established by the former
Board of Mine Operations Appeals in Old Ben Coal Co., 8 IBMA 98 (1977).
While it appears that MSHA did prove that a violation occurred even if the
requirements of the Board's Old Ben case were still in effect, the Commission
held in MSHA v. Old Ben Coal Co., 79-12-4, that MSHA does not have to satisfy
the criteria established by the Board in its Old Ben opinion. The Commission
held in its Old Ben decision that the mere existence of combustible materials
is sufficient to show that a violation of section 75.400 has occurred.
Respondent's section foreman agreed that the inspector had correctly
described some loose coal accumulations which existed in the No. 3 entry and
adjacent crosscut (Tr. S64). Respondent's section foreman agreed that the
accumulations had been caused by loose coal accumulating at the belt feeder
before it was moved and by loose coal having been dragged off shuttle cars
on which coal had been piled too high to pass under the low roof which
existed inby the loading point (Tr. 569-570). The section foreman stated
that he had observed the loose coal accumulations before the inspector
arrived on the section and that he would have had them cleaned up by the
continuous-mining machine when it completed cutting through the pillar from
which it was extracting coal at the time the inspector arrived to examine
conditions in the section (Tr. 564). The section foreman said that he would
have had the loose coal cleaned up within a period of from 30 minutes to an

42

hour (Tr. 566). ·The section foreman said that he did not stop the
continuous-mining machine and clean up the loose coal immediately after he
observed the loose coal accumulations because they were engaged in retreat
mining and he believed that interrupting the cutting process in a given
pillar of coal during retreat mining subjected the miners to greater danger
than allowing the loose coal accumulations to exist for a period of from
1 to 2 hours (Tr. 566-567)~
Since Respondent's section foreman testified after the inspector had
finished his testimony, there is nothing in the record to controvert the
validity of the reason given by the section foreman for not having cleaned
up the loose coal prior to the time that it was observed by the section
foreman. On the other hand, it would appear that the section foreman could
have examined his section for the existence of loose coal accumulations
prior to commencement ~f mining operations. If he had done so, it appears
that he could have used the mining machine to clean up the loose coal prior
to initiation of cutting operations in a pillar of coal. The section foreman
who testified at the hearing was the one who was present at the time the
inspector's notice of violation was written. That section foreman had been
on leave for the 2 days preceding the writing of the notice and it was during
his absence from the mine that the belt conveyor had been moved. He was,
therefore, not present at the time the loose coal accumulations were left
after the belt was moved. He was, nevertheless, grossly negligent in failing
to clean up the loose coal accumulations prior to the commencement of mining
operations. The section foreman should have been notified by entries in the
preshift book that the loose coal accumulations existed. If the preshift
book did not record the existence of the accumulations, then Respondent's
section foreman and preshift examiner on the previous shifts were grossly
negligent for either not having cleaned up the accumulations or for not having made an entry about the accumulations ·in the preshift book.
MSHA's brief (p. 10) recommends that a penalty of $2,000 be assessed
for this violation of section 75.400. That appears to be a reasonable penalty when all of the criteria are considered. Although there were potential
ignition hazards in the form of trailing cables to the shuttle cars, the
actual danger of an explosion or fire was somewhat remote (Tr. 554). The
inspector did not detect any trace of methane in the mine at the time he
wrote the notice of violation (Tr. 547). The most methane the inspector
had ever detected in the mine on any prior inspections was .2 of 1 percent
and a bottle sample taken by the inspector revealed only .05 of 1 percent of
methane (Tr. 547; 549). Consequently, the inspector himself said that an
explosion was not likely to result from existence of the accumulations (Tr.
554).
As I have indicated above, the primary criterion which requires the
assessment of a rather large penalty in this instance is that Respondent's
supervisory personnel had known of the existence of the loose coal accumulations for a considerable time and had failed to clean them up. Considering that a large operator is involved, that there was a good faith effort
to achieve rapjd compliance (Tr. 545), that the violation was moderately

43

serious. and that Respondent was grossly negligent. a penalty of $1,500
should be assessed. Exhibit M-30 shows that Respondent has paid penalties
for 52 prior violations of section 75.400 in its Open Fork No. 2 Mine. Two
of the violations occurred in 1971, 12 in 1972 0 5 in 1973 0 9 in 1974, 3 in
1975, 9 in 1976, and 12 in 1977. I find that the foreging statistics indicate that Respondent's Open Fork No. 2 Mine has a very unfavorable trend
in its history of previous violations. The history is especially adverse
in that Respondent had violated section 75.400 on 12 occasions during the
9-1/2 months of 1977 preceding the writing of the instant violation on
October 17, 1977. In such circumstances, the penalty of $1,500 should be
increased by $500 to $2,000 under the criterion of history of previous
violations.
Summary of Assessments and Conclusions of Law
(1) The motions for approval of settlement made with respect to MSHA's
Petitions for Assessment of Civil Penalty filed in Docket Nos. NORT 78-366-P
and NORT 78-368-P should be granted and the settlements should be approved
for the reasons given in the firt part of this decision.
(2) Pursuant to the settlement agreements, Respondent should be ordered
to pay civil penalties totaling $5,750.00 which are allocated to the respective alleged violations as follows:
Docket No. NORT 78-366-P
Order No. 1 CAG (7-46) 9/6/77 § 75.400 ••••••••••••••••••••• $ 2.000.00
Order No. 2 CAG (7-47) 9/19/77 § 75.301-4 ••••••••••••••••••
2,500.00
Total Settlement Penalties in
Docket No. NORT 78-366-P•••••••••••••••••••••••••••• $ 4,500.00
Docket No. NORT 78-368-P
Notice No. 1 VH (7-28) 8/1/77 § 75.200 ••••••••••••••••••••• $ 1,250.00
Total Settlement Penalties in
Docket No. NORT 78-368-P•••••••••••••••••••••••••••• $ 1,250.00
Total Settlement Penalties in This Proceeding ••••••••• $ 5,750.00
(3) On th~ basis of all the evidence of record and the foregoing findings of fact, Respondent should be assessed the following civil penalties:
Docket No. NORT 78-325-P
Notice No. 1 WJT (6-85) 12/21/76 § 75.1403-10 •••••••••••••• $ 9,000.00
Total Civil Penalties in
Docket No. NORT 78-325-P•••••••••••••••••••••••••••• $ 9,000.00

44

Docket No. NORT 78-365-P
Order No. 2 CAG (7-15) 1/31/77 § 75.400 •••••••••••••••••••• $ 8,000.00
Total Civil Penalties in
Docket No. NORT 78-365-P •••••••••••••••••••••••••••• $ 8,000.00
Docket No. NORT 78-367-P
Notice No. 1 KCK (7-95) 11/17/77 § 75.501-2(2) ••••••••••••• $ 2,000.00
Total Civil Penalties in
Docket No. NORT 78-367-P •••••••••••••••••••••••••••• $ 2,000.00
Docket No. NORT 78-369-P
Notice No. 2 KFO (7-115) 10/18/77 § 75.400 ••••••••••••••••• $ 2,000.00
Total Civil Penalties in
Docket No. NORT 78-369-P•••••••••••••••••••••••••••• $ 2,000.00
Total Civil Penalties in Contested Cases in
This Proceeding ••••••••••••••••••••••••••••••••••••• $21,000.00
(4) MSHA's Petition for Assessment of Civil Penalty filed in Docket
No. NORT 78-364-P should be dismissed for failure to prove that the violation
of section 75.317 alleged in Notice No. 1 CAG (7-38) dated June 21, 1977,
occurred.
(5) Respondent, as the operator of the coal mines listed in the caption
of this decision, is subject to the provisions of the Act and to the regulations promulgated thereunder.
WHEREFORE, it is ordered:
(A) The motions for approval of settlement described in paragraph (1)
above are granted and the settlement agreements are approved.
(B) Respondent, within 30 days from the date of this decision, shall
pay civil penatlies totaling $26,750.00 af which $5,750.00 are assessed
pursuant to the parties' settlement agreements described in paragraph (2)
above and $21,000.00 are assessed pursuant to my decision on the contested
issues as summarized in paragraph (3) above.
(C) MSHA's Petition for Assessment of Civil Penalty filed in Docket
No. NORT 78-364-P is dismissed for the reason given in paragraph (4) above.

~e9t~l:tifht--

Administrative Law Judge

45

Distributioni
John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Gary W. Callahan, Esq., Attorney for Clinchfield Coal Company,
Lebanon, VA 24266 (Certified Mail)

46

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

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 1 5 1980
SECRETARY OF LABOR,
Petitioner

Civil Penalty Proceeding
Docket No. WEVA 79-304
AC No. 46-01417-03014V
No. 14, No. 3 Seam Portal

v.
UNITED STATES STEEL CORP.,
GARY DISTRICT,
Respondent

DECISION GRANTING MOTION TO DISMISS
On November 22, 1978, Petitioner issued Order No. 253998 to Respondent,
under section 104(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. section 801 et~· citing a violation of 30 CFR 75.200, a
mandatory safety standard. Respondent filed an application for review of
the order. A hearing on the merits was held and ,on September 19, 1979, a
decision was issued by Judge Stewart in United States Steel Corporation,
Docket No. HOPE 79-152 (September 19, 1979). In vacating the order of
withdrawal, he found that "Applicant did not violate its roof control
plan or section 75.200 as alleged in Order No. 253998."
On September 4, 1979, Petitioner filed a petition for assessment of
civil penalties for the roof control violation as alleged in Order No.
253998. Respondent filed an answer denying the violation and moved to
dismiss the petition based on the decision of Judge Stewart in HOPE 79152.
I find that Judge Stewart's decision in HOPE 79-152 is res adjudicata
as to the issue of a violation in this proceeding. ~
WHEREFORE IT IS ORDERED that the Respondent's motion to dismiss is
GRANTED and the petition for assessment of civil penalties is DISMISSED.

-tr)~ ~VeA.WILLIAM FAUVER, JUDGE
Distribution Certified Mail:
Louise Q. Symons, Esq., 600 Grant St., Rm. 6044, Pittsburgh, PA
15230
Sidney Salkin, Esq., Office of the Solicitor, US Department of
Labor, Rm. 14480 Gateway Building, 3535 Market St., Philadelphia,
PA 19104

47

FED5RAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW juoGES .
SKYLINE TOWERS NO. 2, lOTH FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN f 5 1980.
SECRETARY OF LABOR,
Petitioner

Civil Penalty Proceeding
Docket No. PENN 79-36-M
AC No. 36-00238-05008F

v.

MARBLEHEAD LIME COMPANY
Respondent

Pleasant Gap Mill

DECISION AND ORDER APPROVING SETTLEMENT
On December 26, 1979, the Solicitor filed a motion for decision
and order approving settlement of this case. This case involves one
charge of violation of safety and health standards initially assessed by
MSHA for $7000.00. The parties requested approval of a settlement as
follows:
Citation No. 303938 alleged a violation of 30 CFR 57.14-20 (failure
to block machinery against motion while performing repairs or maintenance).
The parties moved for approval of a settlement in the amount of $3600.00
whereas the initial assessment was for $7000.00. In support of the motion
it is stated that "The operator's negligence was over assessed." Although
this citation resulted from a fatal accident where a repairman mechanic
was crushed against a work bench by a front end loader, the operator
"believed that motion was necessary to make adjustments during the
installation of axles" and "This procedure was also used at the repair
facilities of several other area companies."
Having duly considered the matter, I conclude that the recommended
settlement is consistent with the purposes and policy of the Act. The
recommended settlement is, therefore, approved.
Accordingly, it is ORDERED that the motion for decision and order
approving settlement is GRANTED.· It is FURTHER ORDERED that the operator
pay $3600.00 and that subject to such payment the petition be DISMISSED.

Distribution Certified Mail:
James H. Swain, Esq., US Department of Labor, Office of the Solicitor,
Rm 14480 Gateway Bldg., 3535 Market St., Philadelphia, PA 19104

Harry M. Coven, Esq., 300 West Washington St., Suite 1500, Chicago,
IL 60606

48

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

J,_N 2 2 1980
Application for Review

CONSOLIDATION COAL COMPANY,
Applicant
v.

Docket No. MORG 79-109
Order No. 814153
Dated: February 26, 1979

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

Four States No. 20 Mine

UNITED MINE WORKERS OF AMERCIA
(UMWA),
Respondent
DECISION
Appearances:

Karl T. Skrypak, Esq., Pittsburgh, Pennsylvania, for the
applicant;
Leo J. McGinn, Trial Attorney, U.S. Department of Labor,
Arlington, Virginia, for respondent MSHA;
Joyce A. Hanula, Legal Assistant, Washington, D.c., for
respondent UMWA.

Before:

Judge Koutras
Statement of the Proceeding

This is an action filed by the applicant on March 8, 1979, pursuant
to section 107(a)(l) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 817(e)(l), seeking review of an imminent danger closure order
issued by MSHA inspectors Ra:}rmond L. Ash and Frank D. Bowers on February 26,
1979, pursuant to section 107(a) of the Act. Withdrawal Order No. 814153,
described the following condition or practice which the inspectors believed
constituted an imminent danger warranting closure of the entire mine and ·
the withdrawal of miners:

An order of withdrawal is issued to withdraw all miners
from the inside of the Consol No. 20 mine and miners on the
surface at the Four States Preparation Plant to insure their
safety due to the danger of the fresh water dam giving way.
The fresh water dam is used for the Four States Community

49

water. Water is being discharged from the dam with 2 Ford
tractors, discharging into (2) 10" inch lines, approximately
1000 gallons per minute, approximately half-way over the
embankment and the water pressure from these 10" lines are
eating away at the embankment and toe of the dam to a depth
of approximately 6 to 7 feet. This order is issued through
no fault of the company. Also, other signs of instability
exists along the face and toe of this, such as piping and
etc.
In its review petition, applicant asserted that the order was improperly and unlawfully issued because:
1. The description of the conditions and practices in the order is
inaccurate, no violation of section 3(j) of the 1977 Act occurred as
alleged, and that there did not exist in the Four States No. 20 Mine
at the time in question any conditions or practices constituting an
"imminent danger" within the meaning of section 107(a) of the Act.
2. The order is invalid since the Mine Safety and Health Administration (MSHA) did not have the authority, capacity, power or right to act in
the subject situation. MSHA lacked jurisdiction in the matter since the dam
was not owned, operated or controlled by the applicant, and it was not used
in, to be used in or resulting from the coal mining operations at the Four
States No. 20 Mine. An engineering study relating the volume of water in
the dam to the elevation of the mine shaft indicates that it would have been
physically impossible (in the event of a dam failure) for the resulting
water flow to reach the site of the mine shaft.
3. The order falsely implies that the breastwork of the dam was purely
earthen when same was in fact concrete and steel at the face banked with
earth and covered with trees and vegetation. Therefore, "no danger" existed
and the likelihood of the dam breaking was certainly not "imminent."
Respondents filed timely answers to the review petition and asserted
that the imminent danger order was properly issued and should be affirmed.
A hearing was held in Morgantown, West Virginia, on July 31 and August 1,
1979, and the parties appeared and participated fully therein. Posthearing
proposed findings, conclusions, and supporting briefs have been filed by all
parties and the arguments presented have been carefully and fully considered
by me in this course of this decision.
Applicable Statutory Provisions
1.
et seq.
2.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
Section 107(a) of the Act provides:

If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized

50

representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of the
area of such mine throughout which the danger exists, and
issue an order requiring the operator of such mine to cause
all persons, except those referred to in section 104(c) to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that such imminent danger and the conditions or practices which caused such imminent danger no loriger exist. The
issuance of an order under this subsection shall not preclude
the issuance of a citation under section 104 or the proposing
of a penalty under section 110.
3. Section 3(j) of the Act (30 U.S.C. § 802(j)) provides that the term
"imminent danger" means: "[T]he existence of any condition or practice in
a coal or other mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can be abated;

* * *·"
Issues
1. Whether the conditions cited and described by the inspectors presented an imminent danger warranting the issuance of a closure order pursuant to section 107 of the Act.
2. Whether MSHA exceeded its jurisdiction by issuing an imminent
danger closure order and requiring the withdrawal of miners based on an
asserted imminent danger which purportedly did not exist in the mine or
on mine property.
3. Additional issues raised by the parties are identified and discussed in the course of this decision.
Background of the Controversy
Aside from the question of jurisdiction and whether an imminent danger
did in fact exist, the essential facts surrounding the issuance of the imminent danger order in question do not ·appear to be in dispute. The events
leading up to the issuance of the order began on the evening of February 26,
1979, when MSHA's subdistrict office received a telephone call through
MSHA's chain of command concerning a "hotline" telephone call received by
MSHA's Arlington, Virginia, headquarters reporting that someone was discharging water from a dam in the municipality of Four States, West Virginia.
The dam in question is known as the Four States Dam, and it is owned and
operated by the Four States Public Service District and is used as a water
supply for the residents of the community of· Four States. The dam is not
owned or controlled by the applicant and it is not located on mine property.
It was originally constructed in the early 1900's and is located in a remote
rural area, approximately 1,600 feet from the mine property beginning at
a parking lot, and approximately one-half mile northeast of the town of

51

Four States on an unnamed tributary of Tevebaugh Creek of the West Fork
River of the Monongahela River. The physical characteristics and type of
construction for the dam are detailed in a study compiled in February 1979,
by the West Virginia Department of Natural Resources under guidelines provided by the United States Corps of Engineers pursuant to the National Dam
Inspection Act, P.L. 92-367, August 2, 1972. A copy of the study is a part
of the record and was supplied to all of the parties and to me for the purpose of familiarizing the parties with the physical characteristics and
problems concerning the dam as perceived by those entities who compiled the
report and for the purpose of posthearing arguments (Tr. 259-260). Since
the report was mentioned and referred to on several occasions during the
course of the hearing, it was received by me over objections by applicant's
counsel as to its probative value.
In general, the dam in question is approximately 29 feet high and
255 feet wide, and it consists of an arched concrete, brick, and concrete
block cantilever retaining wall with an earthen embankment consisting of
trees, soil, and extensive and dense vegetation and brush. The embankment
was described as a slope varying from 25 to 35 degrees to the downstream
side, and the surface water area was desc~ibed as encompassing some
3.7 acres and extending some 800 feet. At normal height, the volume of
water impounded by the structure was described as approximately 45-acre
feet, although the actual volume of water retained by the dam has apparently
never been precisely computed. In addition to the Corps of Engineers study,
the record compiled in this proceeding includes maps, surveys, descriptions,
sketches and pictorial slides which detail the physical exterior and engineering construction specifications for the dam. In addition, for the purpose of familiarizing me and the parties with the general topography and
geography of the dam and surrounding terrain, including its proximity to the
mine which is located downstream, a visit was made to the dam site and the
mine at the conclusion of the hearing and those in attendance included
counsel for all parties as well as MSHA's inspectors and others who testified at the hearing.
Upon arriving at the dam site at approximately 7:30 p.m., on
February 26, 1979, a dark, cold, and snowy evening, MSHA inspectors Ash and
Bowers observed two tractors parked at the side of the dam pumphouse. The
tractors were supplying power to two pumps which were pumping water from the
dam through two 10-inch lines. One line was extended part way down the
earthen side of the dam structure, and the second line was located below the
first one, and both lines were discharging water from the dam down the
earthern embankment. No one was tending the pumps and no one was in the
area. The inspectors observed and believed that the water being pumped from
the dam resulted in the washing away of a large gulley or culvert, and the
depth of the this wash-out was approximately in excess of some 5 feet.
After this initial observation, the inspectors traversed across the dam and
observed what was described as fresh water.coming out of the ground in
several locations on the earthern side of the structure, and moving water
which was swirling about in different directions at the bottom or toe of the
earthern side of the dam. They believed that these conditions had resulted

52

from water seepage from the inside or water impoundment side of the dam
through the concrete structure. They estimated the water level in the dam
at that time as approximately 2 or 3 feet below the top of the dam. They
then proceeded back to the gulley area created by the pumping water and at
that time estimated it to be some 7 to 8 feet in depth and much longer than
initially observed. At that point in time, they decided that the continuing
erosion of the portion of the earthern structure where the water was being
pumped created a potential for collapse of the dam, thereby creating an
imminent danger to the miners working at the mine located downstream at the
mouth of a hollow extending from the dam to the mine property. The inspectors then drove to the mine and advised the mine superintendent by telephone
that a section 107(a) closure order would be issued until such time as the
pumping of the water from the dam was stopped or the lines extended at the
face of the dam, and the written order was issued at 8:30 p.m. A prior incident involving the dam occurred in December 1978, when state and local
authorities, concerned about the possible collapse of the dam after a heavy
rainfall, ordered the evacuation of the inhabitants downstream, including
miners from the Four States No. 20 Mine.
After the closure order was issued and the miners withdrawn, the
inspectors returned to the dam to await the arrival of an MSHA engineer.
The only person in the area at this time was a civil defense representative
who was apparently in charge of the pumping of the water from the dam, and
it was later determined that the pumping was done at the recommenqation of
the Corps of Engineers in order to prevent the water from reaching the spillway level of the dam. Upon arrival of the engineer, he and the inspectors
again inspected the dam, and the engineer concurred in the--~nspectors'
assessment that the pumping of the water from the dam onto the earthern face
of the structure had caused the erosion creating the gulley, and coupled
with leakage from the structure, could lead to a collapse of the dam if
the pumping were to continue unabated.
After the cessation of the pumping of the water, the order of withdrawal was terminated at 11:45 a.m., on February 27, 1979, and the termination order states as follows: "Pumping of water on the earthern breastwork
of the Four States water dam has been discontinued, therefore, there is no
longer erosion of the breastwork and it is now in a more stable condition."
Following the termination of the order, MSHA engineers engaged in a
study to determine in future incidents, what the precise effects would be
downstream should the dam fail. Based on this study, it was determined
that in the event of a partial or full collapse of the dam structure, a wall
of water ranging from 5 to 8 feet in depth would reach parts of the mine
property, including the railroad yards and some of the surface area of the
preparation plant, but not the mine shafts or the preparation plant building
itself.
Testimony and Evidence Adduced by MSHA
MSHA inspector Raymond Ash, testified that on February 26, 1979, he
received a telephone call from the MSHA office in Arlington about a water

53

problem at the Four States Fresh Water Reservoir and in response to the
call, he and fellow inspector Frank Bowers went to the dam and arrived at
7:30 p.m. Mr. Ash observed two tractor pumps discharging water through two
10-inch rubber lines in an uncontrolled manner on the earthern part of the
dam. The first rubber line, located near the toe of the dam, was washing
away the earthen breastwork of the dam. The second rubber line, located
over the embankment, was not causing any damage to. the dam (Tr. 19-23).
When he walked along the dam embankment, he found the ground icy, slushy,
and spongy, and when he inserted a 3-foot long tree limb and a
five-eighths-inch steel bolt rod into the embankment, they disappeared. He
found muddy cavities in the breastwork of the dam, including gully erosion.
The gully was about 8 feet deep and 60 feet long, and the water was about
3 feet below the top of the dam and the spillway was not being used. When
he walked to the other side of the dam, he saw more cavities in the earth
breastwork, and water was bubbling in the center of the earth breastwork
as well as out of the ground against the stone face of the dam. The water
was traveling down the hill, and the presence of running water, including
the gully erosion, frightened him. The presence of running water coming
through the earth breastwork, led him to believe that the pumping had caused
the stone wall of the dam to fail, and a trench created by the pumping provided a place for Elie whole side of the earth dam to slide. Water, clay
and stones were swirling at the toe·of the dam. After making all of these
observations, it was his judgment that the stability of the dam was so bad
that there was a real danger of the dam "coming out." He discussed the
situation with Mr. Bowers, and while they concluded that MSHA did not have
jurisdiction over the dam, they believed that something had to be done and
they wanted someone at the mine to help take care of the problem (Tr. 2331).
Mr. Ash testified that the mine property was 500 to 600 feet below the
dam and while traveling to the mine he saw 6 inches of muddy water running
over the road, and he believed that the muddy water came from the dam.
Upon arriving at the mine he talked to superintendent Eugene Jordan by telephone about the situation, and Mr. Jordan advised him that the company had
nothing to do with the dam. After attempting to issue a verbal withdrawal
order at 8:15 p.m., which Mr. Jordan would not accept, it was issued in
writing and served on the company at 8:30 p.m. At that time he also telephoned the assistant district manager, the state police, and the U.S. Army
Corp of Engineers about the dam conditions (Tr. 34). After the withdrawal
order was served, he and Mr. Bowers went back to the dam to wait for
Frank R. Watkins, MSHA's water impoundment engineer.
Mr. Ash defined an imminent danger as "it is a condition or practice
that if it is allowed to continue and the operation goes on as normal, and
this condition or practice is allowed to continue, someone will get seriously hurt or killed" (Tr. 36). The dam is 300 feet wide, 1,000 feet long,
with a face of some 30 feet, and it had a prior water overflow problem. The
uncontrolled pumping and wash-out led Mr. Ash to believe that if he had not
issued the withdrawal order the continued pumping would have caused the
right side of the portion of the dam upstream to erode that it would have

54

lost its earth face and stone wall at the same time. Fifty to 60 miners,
as well as the recreational hall downstream could be in danger from flooding
(Tr. 36-42).
On cross-examination, Mr. Ash testified that his training in water
impoundments consists of a 5-day MSHA training program dealing with the
recognition of dangerous conoitions rather than water volume calculations
and structure analysis and he has no such training (Tr. 42-43). On the
evening in question it was dark and the only lighting available was his cap
lamp (Tr. 44). If the dam had broken, the water may have reached mine property, and at the time the order issued he thought it would reach the portal
(Tr. 54). When he arrived at the mine, he did talk to certain mine supervisors about the condition of the dam, but he did not inspect the mine completely to determine the extent of the imminent danger, nor did he remain
to insure that all miners were in fact withdrawn and this was because he is
not required to. He denied that he had given his consent to anyone to
remain in the mine (Tr. 54).
On redirect, Mr. Ash reiterated that he observed a steady stream of
water at the top of the earthen portion of the dam and it was starting to
flow down the face of the bank with enough force to carry sediment away very
quickly. It was his opinion that the water resulted from a break somewhere
in the stone-faced dam because the water flow was more than mere seepage.
When asked why he believed the water from the dam would reach the mine in
the event of a collapse, he answered as follows (Tr. 59-60):

Q. When you related about the collapse of the dam to
the danger on mine property, did you have any basis for a
judgment as to whether or not there was enough capacity here
to affect or involve the mine property?
A. I actually thought there was enough water that it
would go down both shafts there. It would probably knock
the power off at the Four States and go down at least two
shafts, the coal shaft and the shaft that the men who worked
near that bottom came down.

Q.

What was the basis for this judgment?

A. I have seen water.
shafts before.

I have seen water running in

Q. But from this dam related to the mine, what made you
think that th1s dam was large enough in capacity to possibly
have this happen?
A. I had no firm basis for my opinion, nothing;
engineering, no firm basis, or anything. To me, the dam was
large enough. There was a large volume of water, and I
couldn't see how it could go down that hollow without getting
into that shaft.

55

Later on, it is easy to look- at it and think but then,
it is a snowy night; it is cold, and the wind is blowing.
There was rain; there was water; there was mud all over the
face of that dam. To me, we did the proper thing.

Mr. Ash further stated that he could not determine how the tractors
got to the dam site, nor could he find out who was operating them. His
attempts to ascertain these facts by telephone were fruitless since no one
wanted anything to do with the dam. He believed that when he issued his
order there was a definite potential danger of risk to the miners in the
mine (Tr. 61).
In response to questions from the bench, Mr. Ash explained the basis on
which he issued his imminent danger order as follows (Tr. 68-70):
JUDGE KOUTRAS: Assuming that that dam had been two and
one-half to three feet below the level of the crest, and
assuming that they had no pumps there, would you have done
anything that night? There wouldn't have been any cause for
anybody to go there, would there?
THE WITNESS:

No, there wouldn't have.

JUDGE KOUTRAS: Your concern was the manner in which
this water was being pumped out of this dam that was causing
some erosion?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: So am I to assume then that the principal
cause of the apparent imminent danger, or what you thought was
imminent danger, was caused by the manner in which this water
was being pumped out of the dam?
JUDGE KOUTRAS: So the rushing water that you were concerned about was the water that was being pumped out of the
dam with these ten-inch. lines?
THE WITNESS:
JUDGE KOUTRAS:

Yes, sir.
Which was causing a little erosion here?

THE WITNESS:

In my ~pinion, it was more than a little.

JUDGE KOUTRAS:

It was causing a gully of water to rush

down?
THE WITNESS:

Yes, sir.

56

JUDGE KOUTRAS: Theoretically if they pumped all of the
water out of the dam, it would inundate the mine at some
point in time, wouldn't it?
1HE WITNESS:

No, because it would come out gradual.

JUDGE KOUTRAS: The reason that you decided to withdraw
the miners was because that you thought this pumping of the
water was done in such a manner that eventually -THE WITNESS: This pumping was done in such a manner
that this gully, the erosion gully, would come down here and
give this bank, which is nothing but mud, spongey mud_, a
place to slide and let the whole dam go.
JUDGE KOUTRAS: If that spongey mud slid, what would
happen to the stone wall and the cement behind it and all of
that? Would that come down, too, in your mind?
THE WITNESS:

Yes, it would have.

And, in response to questions by Applicant's attorney (Tr. 77):

Q. Mr. Ash, isn't it true that if the people who were
pumping this dam had extended those hoses below the dam, they
could have pumped out the entire volume of water in that dam,
and it would not have bothered that mine whatsoever; isn't
that true?
A.

Yes, sir.

Q. The real imminent danger that you were fearful of is
the actual bursting of that dam and the wall of water coming
down that valley; is that correct?
A.

Yes, sir.

MSHA Inspector Frank D. Bowers testified that he has been a coal mine
inspector for approximately 9 years but that his experience and training on
dams and impoundments was the same as that,of Mr. Ash. He accompanied
Mr. Ash on the evening of February 26, during the inspection of the dam, and
after listening to his testimony he indicated substantial agreement with it.
The discharging of the water over the dam and onto the earthern embankment
by pumping was eating away at the embankment, and this in turn would weaken
the stone or brick dam wall behind the embankment. He has seen training
films which depicted water seeping through an.embankment from a crack, and
he indicated that once started it will eventually eat away the dirt and then
give way. Aside from the gulley of water, the other water they observed was
from seepage through the dam. Since he had no authority to order the pumps
shut down and could do nothing about the dam, his only recourse was to "pull

57

the men out of the mine for their safety." He believed an imminent danger
existed and he defined "imminent danger" as "an event which could be reasonably expected to cause serious harm or death before such condition or practice can be abated" (Tr. 82-85).
On cross-examination, Mr. Bowers reiterated that his dam and impoundment training consisted of a 1-week training class which consisted primarily
of viewing slides, films, and classwork. In the event he observes an
impoundment condition which does not appear normal or is not an imminent
danger, his practice is to call on Mr. Watkins for assistance. Mr. Bowers
agreed that he had no jurisdiction over the dam itself. He believed the mine
property was approximately 500 to 600 feet down the hollow from the dam, but ·
also agreed that the distance could be 1,600 feet (Tr. 87). There was vegetation on the earthern breastwork structure of the dam and some of it was
as high as 20 feet. He had not previously inspected the dam and has not
inspected it since the order was issued (Tr. 88). With regard to the
existence of an imminent danger outside of mine property, Mr. Bowers testified as follows (Tr. 89-90):

Q. Is it your opinion that an imminent danger condition
can exist outside of mine property?
A.

At this particular time, yes.

Q. And you would agree that this condition was outside
of the mine property?
A.

Yes.

MR. SKRYPAK:

I have nothing further.

BY MR. McGINN:

Q. Mr. Bowers, what area was closed as being in
imminent danger under the order?
A. The entire mine, the inside and outs.ide surface
facility.

Q.

So the imminent danger consisted of the area of

the mine?
A.

Yes.

Q. When you say that the imminent danger was outside,
did you mean -A. As far as the dam giving way, which was not, as far
as we knew, on mine property.

58

Q.

So the cause of the imminent danger, is that correct?

A.

Yes.

Q.

Was upstream?

A.

Right.

Q.

But the closure order was issued --

A.

It was on the mine property itself.

Q.

That is where the danger existed; is that correct?

A.

That is right.

JUDGE KOUTRAS: That is a play on words, too. It is
clear to me that both inspectors believed that the cause of
the imminent danger was something that was off mine property,
but they were concerned that if they did not withdraw those
miners, the imminent danger would get on mine property; the
water would get down. Isn't that what their testimony is?
MR. McGINN:

Yes.

I have nothing further.

In response to questions from the bench, Inspector Bowers testified
that the water from the. dam was coming down the hollow, and while it did
not reach mine property at that time, it did reach the roadway paralleling
the hollow. His concern was that the pumping of the water over the earthen
breast of the dam would eventually weaken the dam wall, and while he did
not know how long this process would take, he stated, "By all indications,
i t looked to me like it wouldn't take long" (Tr. 93). Mr. Bowers also
stated that Consolidation Coal was not in violation of any regulations, and
that while he had no jurisdiction to check out the dam, the only thing he
had to work with was section 107(a). As far as he knows, no MSHA inspector
has been back to the dam to inspect it again. Assuming there were another
rainfall, he would not go back to inspect the dam unless he were asked to
because he has no authority over the structure.
MSHA supervisory engineer Frank R. Watkins, testified that he is in
charge of waste banks and impoundments and that he previously worked for the
Federal Power Commission, Bureau of Power. His prior experience includes
the writing of engineering reports along with Commission license orders for
hydraulic and power generation dams on navigable waterways operated by
private parties. He also conducts engineering studies on the construction
and maintenance of water impoundments, refuse piles, shaft construction, and
ground control for strip mines (Tr. 98). He visited the dam site in question after receiving a telephone call from Merle Manus, MSHA Assistant
District Manager, and after arriving at the Four States Water Reservoir at
9:30 p.m., he spoke with the MSHA inspectors, a safety committeeman, the

59

dam pump operator, and a Civil Defense representative. He walked across the
dam to the spillway, and observed that water was not going through the spillway. There was 2-1/2 to 3 feet of freeboard between the top of the dam and
the water level. There were two areas that were leaking through the dam
structure. The first leak was located in the middle'which was free-moving,
and the second leak was located to the right which was a slow leak. In
addition to water, he observed an 8-foot gully nea.r the water. pumps. After
observing the 8-foot gully, he observed an "old hole" which appeared to be
the place where the water was coming from and it was located at the center
of the dam 3 feet from.the top. The water was coming straight through the
dam itself and exiting downstream.

Mr. Watkins stated that the area from where the water was exiting indicated to him that the dam had a high "phreatic line" which is a line indicating the water level within the dam, and it is a critical sign of
instability. The higher the level of the phreatic line, the lower the level
of stability of the dam (Tr. 100-105). When he arrived at the water pump
location, he observed two 10-inch pump lines, one above the other, discharging water, and the lines were washing away the earth part of the dam's
structure. A gully and channel were being created by these water lines.
The gully was 8 feet deep, 6 feet wide and 18 feet long, with a 32-degree
slope. It was his opinion that the sloped gully hole was a significant
factor in causing the dam to be unstable (Tr. 107). He also observed a
soft sink hole where he could push anything into it and the object would
completely disappear. The sink hole was a sign that the dam was heavily
saturated with serious voids in its structure. In addition to the pumping
of the water, the existence of vegetation was a factor in causing the dam
to be unsafe in that when the trees die, their roots leave holes where water
can enter the earth embankment, thus carrying particles that create larger
holes and erosion which can create a pumping type of failure. In his
opinion, the water was flowing through the earthen part of the dam, the
dam was capable of collapsing, and, the water in the dam was capable of
flooding the mine (Tr. 109-110).
On cross-examination, Mr. Watkins, testified that his conclusions were
based on visual observations rather than engineering tests. He testified
that he did not compute the water volume and depth, and he believed that
the water that flowed at the bottom of the dam was due to seepage rather
than runoff (Tr. 112-115). Although MSHA did not conduct a stability
analysis on the dam, he believed that the concrete-stone abutment could
have retained the water even if the earth breastwork had washed away (Tr.
116-119).
On redirect examination, Mr. Watkins testified it is likely that the
remaining concrete-stone impoundment would fail if the earth embankment had
washed away (Tr. 120). The washing away of the downstream face of the dam
by two 10-inch lines was the primary reason fo~ the issuance of the imminent
danger order. When the pumping stopped it was his opinion that the imminent
danger had ceased. The water content of the dam is 29 feet, and the volume
of water is 51 acre-feet. Based on the 51 acre-feet, the water level would

60

reach the mine. property if the dam collapsed, but there is no data or estimates available that would change his opinion about water flooding the mine
property (Tr. 129-130).
On recross-examination, Mr. Watkins testified that the concrete stone
structure behind the earth structure may have withstood the water pressure,
and if there was an instantaneous collapse, the water would reach the mine
preparation plant but not the mine shafts (Tr. 131-133).

-Mr. Watkins testified that if the water impoundment was located on mine
property, it would fall under the Federal jurisdiction of the Secretary of
labor, and would be within the purview of Part 77 dealing with water impoundment regulations (Tr. 133). The reason the dam does not fall under the
Part 77 water impoundment regulations is that it is not owned by
Consolidation. If the dam is not covered by Part 77 regulations, the Secretary has no jurisdiction to act, and MSHA does not have any jurisdiction
over the dam structure (Tr. 134). However, when the dam endangers miners,
withdrawal orders are issued notwithstanding the fact that other agencies
may have direct jurisdiction and control over the dam (Tr. 137).
Inspector Ash was recalled and testified that with regard to the previous December incident concerning the possibility of the dam collapsing,
MSHA assigned an inspector to make a routine inspection for the purpose of
determining whether Consolidation had withdrawn the miners from the mine•
It was reported that miners were withdrawn and several unidentified agencies
were at the dam site. Since MSHA had no jurisdiction, he advised the inspector not to get involved. Mr. Ash confirmed that miners were voluntarily
withdrawn without any orders being issued by MSHA, and had they not been
withdrawn, a withdrawal order would probably have been issued by MSHA (Tr.
138-140).
MSHA mining engineer Edwin Brady, testified that he is a graduate of
the University of West Virginia and since 1976 has specialized in waste
impoundments and water hydraulics. Specifically, he has served MSHA in
an engineering capacity reviewing impoundment designs and dam projects to
determine whether they comply with the regulations (Tr. 141). On
February 27, 1979, he and Mr. Watkins inspected the Four States Water
Reservoir. He arrived there at 8:30 a.m., and walked up and down the dam,
including the area downstream. In measuring the dimensions of the dam, he
found that it was 255 feet wide, 800 feet long, 29 feet high, with a slope
angle of 27 degrees. He took 14 photographs of the dam and described them
by means of a slide projector (Exhs. 1-14, Tr. 146). He conducted two
studies of the dam to determine the effects of a dam collapse, and based
on a UD-16 soil conservation service field mechanical method, it was determined that if there was a 50-foot breach in the dam, the water elevation
level on the average would approximately come to 1,040 feet and would reach
the mine railroad yard and a small area beyond that; but, below the buildings
and.shafts (Tr. 147). Using the UD-16 method,. the depth of the water reaching the railroad yard could not be determined because of a lack of data con- ·
cerning the el,evation of the mine property (Tr. 148). However, in his

61

opinion, if there was a complete collapse of the dam, the water level would
be at an 8-foot level at the railroad yard area, and this opinion is based
on the fact that the distance between the dam and Mine property is
1,600 feet and the elevation in the railroad yard is 1,032 feet (Tr. 148149).
On cross-examination, Mr. Brady testified that no one, including MSHA,
has yet determined the actual depth of the reservoir, and his calculations
are based on information submitted by another governmental agency. He did
not use any other engineering methods to determine the depth of the dam, but
hand instruments were used to compute calculations on the dam and these
were compared with the other data supplied to him (Tr. 152). Based on his
observations at the dam, he did not believe that an instantaneous break
would occur, but that a partial failure would occur. The "worst thing" tha.t
could have occurred was an instantaneous, rather than partial break, and
in this event his calculations indicated that there would have been 8 feet
of water at the mine property on the railroad track, and with a partial
breach, there would have been 6 feet at that location. With an instantaneous
breach, the water itself would never have reached the mine shafts or preparation plant, but would have reached the upper portions of the railroad track
as shown on the topographical map (Exh. G-4). Based on the elevations and
topography as depicted on the map, the primary flow of water from the dam
in the event of a break would be out to the left rather than directly at
the mine shaft and preparation plant, and his visual observations upon
visiting the dam site confirmed this fact.
Mr. Brady stated that based ori his after-the-fact calculations, he
would have withdrawn men from the lower part of the railroad yard which
is associated with the.car-dropping process, but he would not have withdrawn them from the preparation building itself or from the underground
mining facilities. In his view, the only persons in possible danger were
those who may have been located in the railroad track area below the actual
preparation plant in an area depicted within contour line 1,040 as shown
on the map (Tr. 152-158).
In response to UMWA questions, Mr. Brady stated that based on his study
of the situation, if the dam totally collapsed and the water came down the
hollow, it would not reach the mine portal. Under certain conditions, the
recreation center building located down the middle of the hollow could
possibly determine the flow of water, but this would be hard to define
(Tr. 160).
Testimony and Evidence Adduced by the UMWA
Betty Garrett, Chairperson of' the Four States Public Service District,
testified that her agency did not exercise any legal authority over the dam,
including the water pump system, when Withdrawal Order No. 0814153 was
issued on February 26, 1979 (Tr. 163). When her agency obtained ownership
of the dam in May 1979, she became involved in attempting to resolve the
matter when no one wanted to do anything about the imminent threat. The

62

State Department.of Natural Resources and the U.S. Corps of Engineers would
take no action other than to conduct dam studies. Her attempts at locating
the dam owners came aboutasaresult of the fact that Federal funds to aid
in a dam stability analysis, or to effect repairs, which has still not been
done, are only available if the dam is not privately owned. Prior to her
agency's involvement, the previous owners were the Rochester & Pittsburgh
Coal Company and a Mr. Daniel Hall, who was the operator of the water system,
and those are the entities from whom her agency ob~ained the deed to the
dam.
She was at the dam at approximately 5 p.m., on the day MSHA's order
issued and she wondered why no one was there watching the pumps since she
was concerned that school children ride in and out of the area on a school
bus. She has never determined who started the pumps which were pumping the
water. She telephoned a.Mr. Gene Straight at the Fairmont Civil Defense
Office and he did not know who started the pumps, but Mr. Daniel Hall came
to the dam the same evening and turned them off. Mr. Hall denied starting
the pumps and tol4 her there was nothing he could do since he did not start
them.
Mrs. Garrett testified further that she hopes the dam will be repaired
and she is still attempting to get someone to conduct a stability study. In
the meantime, pumping will again be done when the water level rises, and
this will be monitored by her agency and the State Department of Natural
Resources. She was told that the water level must be maintained 2 feet
below the spillway level. In the event the water level rises again, her
agency will notify the.Department of Energy as well as the people downstream, including the mine itself. The dam is the only source of local
water supply (Tr. 163-166).

On cross-examination, Mrs. Garrett stated that the tractors which were
pumping water are controlled by the Civil Defense Off ice but owned by the
State Department of Highways. The orders to keep the water level 2 feet
below the spillway came from a report made by the Department of Natural
·Resources and the U.S. Corps of Engineers. Those reports reflect that the
dam is "a high hazardous potential structure, introducing imminent threat
to the people below the dam" (Tr. 168). Her agency now owns the land that
the water is on and the water and waterworks, but the Four States Community
has been using the water as their water source since 1911 (Tr. 168, 172).
However, she also later indicated that Four States has been using the water
at the dam as~ source of their water supply since 1946 or 1948 (Tr. 173).
Mrs. Garrett related her attempts to ascertain the owner or .owners of
the dam through the search of tax and deed records at the local courthouse.
She believed that the last owner was the R & P Coal Company, but since
Consolidation Coal paid taxes for land in Four States she also assumed that
Consol owned it, but she confirmed that the deed came from R & P, and that
at the time of the prior dam problems last December, R & P owned it, but
Four States was buying the water from Mr. Hall, who in turn had leased the
water rights from R & P. She entered into negotiations on behalf of her

63

agency to purchase the dam from R & P, and this occurred on May 22, 1979
(Tr. 171). Her interpretation of the deed is that "It gives us the ground
so that we could do something with the dam. That's all. The dam; it gives
us the dam." (Tr. 180).
Earnest W. Michael, chairman of the Consol No. 20 Mine Safety Committee,
testified that he was notified of the withdrawal order 45 minutes after
it was issued, and he and fellow safety committeeman Gary Riggs went to
the dam and walked around looking at the conditions. He expressed agreement
with the contents of the imminent danger order as issued, including the finding of imminent danger. The next day, he met with company officials and
safety inspectors, and Inspector Ash advised Consol employee Mauck that if
he could guarantee that no more water would be pumped down over the crest
of the dam the order would be lifted. Mr. Mauck assured him that he would
make sure the pumping was stopped (Tr. 186-189).
On cross-examination, Mr. Michaels testified that neither MSHA nor any-'
one else ever led him to believe that Consol had anything to do with the
pumping at the dam, but he always believed that Consol owned the dam. He
has worked at the No. 20 Mine for 8 years and it was his understanding that
Consol owned the dam and the property around it (Tr. 192).
Michael P. Zemonick, president of the UMWA local, and an employee of
Consol, testified that he was scheduled to work at the mine on December 9
and 10, 1978, but was advised by mine superintendent Darrel Auch that in
view of a reported danger at the dam all work for those 2 days had been
cancelled, and he did not work that weekend. He participated in the meeting the day after the order in question was issued, and he believed that
mine management was trying to contact Mr. Hall to take care of the dam so
that the mine could return to production. He indicated that "some people"
say that Mr. Hall owns the dam, but that "it is really not known" (Tr. 195).
Applicant's Testimony
Kent Simmons, preparation plant foreman, testified that the order in
question was served on him on the evening of February 26, 1979, after
Inspectors Ash and Bowers advised him that they were going to shut the mine
down because the dam was in danger of bursting and that the water would go
down the mine shafts. Mr. Simmons then telephoned mine superintendent
Jordan, and the inspectors left to return to the dam, and after some
15 minutes, they again came to the mine and told him they were writing an
order and that miners should be withdrawn, and by 9:15 a.m., everyone was
out of the mine. Mr. Simmons did not go to the dam and had no personal
knowledge as to what was there. Responding to a question about the physical
mine layout near the preparation plant, Mr. Simmons testified that railroad
cars are filled one at a time with coal, uncoupled, and then dropped off
for shipment by a car dropper who spends ~ to 10 percent of his time in
the coal yard, and he is usually the only person there (Tr. 217).
On cross-examination, Mr. Simmons testified that coal miners walk down
by the tipple rather than the lower end of the railroad tracks to get to

64

the privately-oWned recreation center, and that occasional maintenance work
is performed at the tipple (Tr. 219). With regard to the recreation center,
Mr. Simmons stated that it is not located on mine property and is privately
owned and operated by someone in the community (Tr. 220).
Eugene L. Jordan, general mine superintendent, Consol No. 20 Mine,
testified that he received a phone call from Mr. Simmons at approximately
8:15 the evening of February 26, and he advised that MSHA inspectors Ash and
Bowers were concerned about the dam. He spoke with Mr. Ash who informed him·
that the dam was in a "dangerous condition" because someone was pumping water
there. Mr. Ash inquired as to the identity of the person doing the pumping
and Mr. Jordan suggested a contact with Mr. Dan Hall because he (Jordan)
believed that Mr. Hall was in charge of the water system or, in the alternative, a contact with Mrs. Garrett. Mr. Ash called him again and advised him
that a withdrawal order would issue against Consol but that it will note
that "it is no fault of Consolidation Coal Company." Mr. Jordan did not
visit the mine after the order issued, but he did go there on the morning of
February 27, and he also went to the dam site at approximately 8:30 a.m. that
morning, and the pumps were not operating. He subsequently learned that
they ran out of gas. He observed the dam conditions, including the gUlley
which had been washed out, and he stated that the dam did not appear any
different from the way he observed it on any other day (Tr. 220-226).
Mr. Jordan testified that he had previously observed the dam weekly
during his travels along the dam road, and he considered buying a home
nearby but did not do so because of the dam and his fear that his young
son might fall into i~. The morning after the order issued, and while at
the dam, he observed the water seepage through the dam breastwork, but was
not concerned about it. Since the order issued, he has traveled back and
forth from the dam site no less than three times a week and has observed
no one performing any reclamation work at the site, although he has observed
the water level at the same height or higher than it was on February 27. He
testified that Mr. Mauck, who is now retired as a company vice president,
advised Inspector Ash that although Consol has nothing to do with the dam,
he would look into the water pumping situation (Tr. 226-231).
Mr. Jordan testified that Mr. Daniel Hall is employed by Consol as a
bratticeman, but that Consol is not involved with the dam at all. Mr. Hall
advised him that he started the pumps on the advice' of the state agency
who controls the dam, and the state agency purportedly told Mr. Hall that
the water should be pumped when it reaches close to the spillway. Mr. Hall
advised him that he would in the future extend the pumping lines beyond the.
area of the wash-out and that was the last time he saw Mr. Hall (Tr. 233).
The pumps were not owned by Consol and Consol had nothing whatsoever to do
with the dam (Tr. 234). Mr. Jordan stated that it was his opinion that on
February 27 the dam was not in such a condition that it posed a threat of
serious injury or death to the miners at the mine (Tr. 236). Mr. Jordan
stated that Mr. Ash agreed that he could keep supervisory personnel in the
mine after the order issued in order to keep it from flooding (Tr. 238).

65

On cross-examination, Mr. Jordan testified that he has never been
concerned about the dam because he has.gone by it "hundreds of times" since
1969. He indicated that on December 7, 1978, representatives of the U.S.
Corps of Engineers and the State Department of Natural Resources visited
his office at the mine and expressed concern over the fact that water was
going over the dam spillway. The state police were also present and people
were being evacuated from the area, and water was being pumped from the dam
by the local fire department. Although he was not particularly concerned,
men were withdrawn from the mine shaft but not from the preparation plant.
He was not concerned because he had observed the dam "come up and down for
ten years" and based on his visual observations and judgment, even if the
dam had totally collapsed the water would not have reached the shafts because
the shafts are at a higher level than everything else (Tr. 243-244). The
Corps of Engineers has never advised him that it did not think the dam was
safe, but did tell him it was in a deteriorating condition (Tr. 245).

Mr. Jordan stated that Mr. Hall charges his customers directly for the
water used from the dam, and while he owns the water system, he did not know
whether Mr. Hall also owns the dam (Tr. 253). Regarding the water that was
being pumped from the dam on the evening the order issued, Mr. Jordan testified that his "concern" over that condition would depend on the appearance
of the gulley and whether it was eroding "a whole lot of the face of the dam
away or just the small amount i t did" (Tr. 256). Assuming that the pumping
had continued continuously for a couple days, that would possibly have concerned him (Tr. 256). Since Consol did not own or control the dam, he was
not going to send anyone there to shut the pumps down in order to abate
the order (Tr. 257).
DISCUSSION
The Concept of Imminent Danger
"Imminent danger" is .defined in section 3(j) of the Act, 30 u.s.c.
"The existence of any condition or practice in a coal or other
mine which could reasonably be expected to cause death or serious physical
harm before such condition or practice can be abated."

§ 802(j) as:

Section 107(a) of the Act provides as follows:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of the
area of such mine throughout which the danger exists, and
issue an order requiring the operator of such mine to cause
all persons, except those referred to in section 104(c), to
be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary
determines that such imminent danger and the condition or
practice which caused such imminent danger no longer exists.

66

The issuance· of an order under this subsection shall not
preclude the issuance of a citation under section 104 or the
proposing of a penalty under section 110.
The legislative history with respect to the concept of "imminent
danger," Committee on Education and Labor, House of Representatives, Legislative History of Federal Coal Mine Health and Safety Act of 1969 at page
4 (March 1970), states in pertinent part as follows:
The definition of an "imminent danger" is broadened from
that in the 1952 ·Act in recognition of the need to be concerned with any condition or practice, naturally or otherwise
caused, which may lead to sudden death or injury before the
danger can be abated. It is not limited to just disastrous
type accidents, as in the past, but all accidents which could
be fatal or nonfatal to one or more persons before abatement
of the condition or practice can be achieved. [Emphasis
added.]
And, at page 89 of the report:
'!he concept of an imminent danger as it has evolved in
this industry is that the situation is so serious that the
miners must be removed from the danger forthwith when the
danger is discovered * * *· The seriousness of the situation
demands such immediate action. The first concern is the
danger to the miner. Delays, even of a few minutes may be
critical or disastrous.
'!he former Interior Board of Mine Operations Appeals has held that an
imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner or
normal mining operations are permitted to proceed in the area before the
dangerous condition is eliminated. The dangerous condition cannot be
divorced from normal work activity. Eastern Associated Coal Corp. v.
Interior Board of Hine Operations Appeals, et al., 491 F.2d 277, 278 (4th
Cir. 1974). The test of imminence is objective and the inspector's subjective opinion need not be taken at face value. The question is whether
a reasonable man, with the inspector's education and experience, 'would conclude that the facts indicate an impending accident or disaster, likely to
occur at any moment, but not necessarily immediately. Freeman Coal Mining
Corporation, 2 IBMA 197, 212 (1973), aff'd, Freeman Coal Mining Company v.
Interior Board of Mine Operations Appears:- et al., 504 F.2d 741 (7th Cir.
1974). The foregoing principles were reaffirmed in Old Ben Coal Corporation
v. Interior Board of Mine Operations Appeals, et al., 523 F.2d 25 (7th Cir.
1975), where the court, following Freeman, phrased the test for determining
an imminent danger as follows:
[E]ach case must be decided on its own peculiar facts. The
question in every case is essentially the proximity of the

67

peril to life and limb. Put another way: Would a reasonable
man, given a qualified inspector's education and experience,
conclude that the facts indicate an impending accident or
disaster, threatening to kill or to cause serious physical
harm, likely to occur at any momemt, but not necessarily
immediately? The uncertainty must be of a nature that would
induce a reasonable man to estimate that, if normal operations designed to extract coal in the disputed area proceeded, it is at least just as probable as not that the
feared accident or disaster would occur before elimination of
the danger.
In a proceeding concerning an imminent danger order, the burden of
proof lies with the applicant, and the applicant must show by a preponderance
of the evidence that imminent danger did not exist. Lucas Coal Company,
1 IBMA 138 (1972); Carbon Fuel Company, 2 IBMA 43 (1973); Freeman Coal Mining
Corporation, 2 IBMA 197 (1973). However, since withdrawal orders are "sanctions" within the meaning of section 7(d) of the Administrative Procedure Act
(5 u.s.c. § 556(d) (1970)), and may be imposed only if the government produces reliable, probative and substantial evidence which establishes a prima
facie case, MSHA must bear the burden of establishing a prima facie case. It
should be noted that the obligation of establishing a prima fac~e case is not
the same as bearing the burden of proof. That is, although the applicant
bears the ultimate burden of proof in a proceeding involving an imminent
danger withdrawal order, MSHA must still make out a prima facie case. Thus,
the order is properly vacated where the applicant proves by a preponderance
of the evidence that an imminent danger was not present when the order was
issued. See: Lucal Coal Company, supra; Carbon Fuel Company, 2 IBMA 43
(1973); Freeman Coal Mining Corporation, supra; Zeigler Coal Company, 4 IBMA
88·, 82 I.D. 111 (1975); Quarto Mining Company and Nacco Mining Company,
3 IBMA 199, 81 I.D. 328, (1973-1974); Kings Station Coal Corporation, 3 IBMA
322 81 I.D. 562 (1974).
The Seventh Circuit also noted in its Old Ben opinion that an inspector
has a very difficult job because he is primarily concerned about the safety
of men, and the court indicated that an inspector should be supported unless
he has clearly abused his discretion (523 F.2d at 31). On the fact presented
in Old Ben, the court observed that an inspector cannot wait until the danger
is so immediate that no one can remain in the mine to correct the condition,
nor can the inspector wait until an explosion or fire has occurred before
issuing a withdrawal order (523 F.2d, at 34). Thus, on the facts presented
in this proceeding, MSHA must show that reasonable men with the inspectors
education and experience would conclude t·hat the water being pumped out of
the dam over and down the earthern breastwork at such a rate which was causing a gulley and other erosion and washing.away of materials to occur constituted a situation indicating an impending accident or disaster, likely to
occur at any moment, but not necessarily immediately.

68

Arguments Presented by the Parties
Applicant Consolidation Coal Company (Consol)
In its posthearing brief, applicant traces the chain of title to the
dam and maintains that this is conclusive proof that the subject fresh
water dam is not owned, operated, or controlled by Consol. In addition,
applicant states that MSHA has admitted that this is in fact the case, and
that the inspectors themselves testified and conc.eded that they have no
jurisdiction over the dam structure.
With regard to the existence of any imminent danger on the day the
order issued, applicant argues that a literal reading of the definition of
the term "imminent danger" as it appears in section 3(j) of the Act, coupled
with the definitions of "coal or other mine" as set forth in sections 3(h)(l)
and (2), clearly establishes that the condition or practice purported to be
an imminent danger must exist in a coal or other mine as defined by the Act,
and that the wa~er dam area in question obviously does not come under any
definition of coal mine or coal property. Applicant maintains further that
section 302 of the 1977 Amendments Act, which established MSHA in the Labor
Department, did not grant to MSHA broad general police powers as the protector of all mankind and the enforcer of all laws, but limited its jurisdiction to the provisions of the Act, namely enforcement powers for mining
activities.
With respect to the independent contractor cases such as MSHA v.
Republic Steel, decided April 11, 1979, holding an owner responsible for
violations where it lacked control or was not at fault, applicant points out
that in all of these cases the conditions or practices cited existed in a
coal mine over which MSHA had jurisdiction. Regarding the recent decision
in Westmoreland Coal Co. v. Mine Safety and Health Review Commission,
606 F.2d 417 (4th Cir. 1979), where the Commission upheld the closing of a
mine because of the danger of flooding from an adjacent mine, applicant
argues that it is obvious that the condition or practice in that case was
caused by and located in an adjacent coal mine, and that MSHA had jurisdiction over the condition or practice because of the definition of coal mine
as found in section 3(h)(l), section 3(h) (2), and section 318(1) of the Act.
In the instant case, applicant points to the fact that the fresh water dam,
which was the condition giving rise to the issuance of the order, is not
to be found within any of the jurisdictional guidelines given to MSHA.
Applicant maintains that if MSHA is allowed to con~true their jurisdiction as
covering extrinsic factors as conditions or practices which can cause an
imminent danger the boundaries are limitless. An inspector could believe
that Skylab or a similar satellite might fall on a mine; an inspector might
believe that a nuclear reactor accident would affect a mine five or more
miles away; an inspector might believe that· Boulder Dam would burst and flood
a mine 20 miles away. The possibilities are endless. As in this case, if
there was a danger of a dam breakage, Applicant maintains that the police
powers of the State of West Virginia would authorize civil defense or policerelated authorities to evacuate people including miners at the mine who

69

might be in danger. The civil authorities, who are more experienced in
these matters, did not envision any danger since they did not request that
anyone, including residents of the homes directly below the dam be
evacuated.
With regard to the existence of "imminent danger, applicant cites the
court decisions in Eastern Associated Coal Corporation v. Interior Board of
Mine Operations Appeals, 491 F.2d 277, 278 (4th Cir. 1974), aff'g Eastern
Associated Coal Corporation, 2 IBMA 128, 136 (1973), and Old Ben Coal
Corporation v. Interior Board of Mine Operations Appeals, 523 F.2d 25
(7th Cir. 1975), where the court affirmed the Secretary's determination
that an imminent danger exists when the condition or practice observed
could reasonably be expected to cause death or serious physical harm to a
miner if normal mining operations were permitted to proceed in the area
before the dangerous condition is eliminated. However, applicant argues
that in order to determine "reasonable actions," one must consider the
inspectors' training and experience. In this case, applicant asserts that
while Inspectors Ash and Bowers may have been qualified inspectors for underground coal mining, they were novices in the area of dam evaluation. In
support of this premise, applicant cites the testimony of Inspector Ash indicating that his total training in evaluating water impoundments consisted
of a course lasting 5 working days at an average of 6-1/2 hours per day
(Tr. 43). The training consisted of lectures and visual aids in the form
of slides of various impoundments (Tr. 42-44). Training was not given in
methods of calculating structural stability or water volume but merely in
recognizing dangerous conditions (Tr. 42-44). Further, the training dealt
with earthen dams, not.with dams having solid wall construction (Tr. 43).
The training was conducted in a classroom (Tr. 42-44). Likewise, applicant
cites the testimony of Inspector Bowers indicating that his total training
was exactly the same as that of Mr. Ash (Tr. 86). He had the same 5 days at
the rate of 6-1/2 hours per day (Tr. 86). Applicant maintains that the two
inspectors, with only 32-1/2 hours of training each in water impoundments
were certainly not qualified to make a judgment as to whether or not the
fresh water supply dam was in danger of bursting.
With regard to the conditions which prevailed on the evening of
February 26, 1976, when the order issued, applicant argues that it was
already dark when the inspectors arrived at the dam site, and that the only
means of lighting was the inspectors mine cap lamps (Tr. 44). Inspector Ash
testified that the lamps normally shine 90 to 100 feet, but that night in
the rain, snow, wind and fog, it was somewhat less (Tr. 45). The inspectors
did not know the depth of the water in the dam (Tr. 46). Nor did they know
its actual length or width (Tr. 48). Therefore, there is no possible way a
reasonable calculation of the water volume behind the dam could have been
made. Therefore, prior to the issuance of the order at about 8:30 p.m.,
on February 26, 1979, the inspectors only had less than 1 hour to
visually observe the dam in adverse weather conditions. They saw some wet
areas on the face of the dam and alleged three areas where they believed
water was flowing (Tr. 47-49). However, they only assumed the water was
coming through the dam when it could have been run off from outside water

70

sources. The primary area of concern was a ditch that was being created by
water discharging from hoses connected to the two pumps. However, it turns
out that when issuing the order, the inspector did not know how much water
was in the dam; he did not know where water seepage on the breast of the dam
was coming from; he did not know what material the dam was constructed from;
he did not know its stability; he could not determine if a partial bursting
or if a total instantaneous burst would take place. With all of these
·
unknowns, one would contend that if an inspector is alleging that water is
going to flood a mining area he cannot just guess at it. He must have a
reasonable idea of the amount of water that he speculates might be rushing
toward the mine. In this case, applicant suggests the inspector could do
nothing more than guess as to all factors involved which is certainly not
reasonable.
Finally, applicant argues that after the order was issued, MSHA's own
engineering studies and the testimony of its dam engineering expert,
Mr. Watkins, established that even if there was a complete instantaneous
burst of the dam, that the water would never have risen to a level that it
would go down the shaft into the mine (Tr. 133). Mr. Watkins testified:
(Skrypak) Q. Based on what you know now, would that
w:iter have reached th~ Preparation Plant or the shafts where
the men go into the mine?
(Watkins) A. Based upon what I know now, I would say
that it would not go down the openings into the shaft.
(Skrypak)

Q.

It would not go down the shaft?

(Watkins)

A.

It would not go down the shaft.

(Skrypak) Q. So although the inspectors did not know
it on that night, the water, even assuming an instantaneous
burst of that dam, would not have made it go down the shaft;
is that correct?
(Watkins) A. Right. That is our engineering judgment.
[TR 133]. [Emphasis added.]
In summary, applicant's case rests on its assertions that while many
state and Federal agencies had been involved with the fresh water dam in
question and seemed to do nothing, MSHA is attempting to make Consolidaton
Coal Company a scapegoat. Since MSHA does not have jurisdiction over the
dam which is not owned, operated or controlled by a coal company, and since
it does not fall within any definition of a coal mine, applicant claims MSHA
lacks jurisdiction to issue any withdrawal orders. And, since an imminent
danger must exist in a coal mine and not be an· extrinsic causal factor,
applicant asserts the testimony clearly establishes that the inspectors did
not have the training or experience to make a reasonable judgment, and that
even the crudest training or general common sense would dictate that the

71

inspectors should have had some knowledge of the volume of water involved,
which these inspectors did not.
Respondent MSHA
Citing the precedent cases dealing with imminent danger, Freeman Coal
Mining Company, supra; Eastern Associated Coal Corporation, supra, and Old
Ben Coal Corporation, supra, MSHA argues that giv€n the facts described in
the record of testimony and on the face of the withdrawal order, the inspectors had no possible course of action other than to issue an 107(a) order
Withdrawing miners from coal mine property until the hazardous condition
could be abated. Given the circumstances presented on the night of
February 26, 1979, MSHA believs that no reasonable man charged with the
responsibility for protecting the lives and safety of miners on coal mine
property, could possibly have acted otherwise. MSHA asserts that the action
of the inspectors completely satisfied the reasonable standard test set out
in Freeman. The inspectors were authorized representatives with extensive
mining experience; they had received specialized training for just such a
situation as presented in this case which required a decision concerning
the stability of a dam. Inspector Ash was personally familiar with the size
and structure of the dam as well as its location with respect to the mine
below it. Both inspectors were aware, as a result of a prior incident that
occurred in December 1978, when state officials had evacuated families from
the area below the dam and Consol officials had voluntarily evacuated miners
from the mine before an inspector arrived in the area because of a feared
dam collapse resulting from heavy rainfall, that the dam had been classified
as highly unstable and had been recognized as a genuine threat. Further,
MSHA argues that after inspecting the dam for signs of general instability,
the inspectors determined that the continuing eroding of the earthen structure resulting from the high pressure water discharge would likely lead to
collapse of the structure unless the pumping were terminated. Proceeding
to mine property, and upon further investigation, they determined that the
six (6) inches of water already covering the ground in the tipple area was
leakage from the dam •. They then explained to mine management the conditions
observed by them and the reasons why an imminent danger existed at the mine,
requiring the immediate withdrawal of those working there.
Based on the foregoing arguments, MSHA concludes that an imminent
danger as defined under the Act and under controlling Board and court decisions existed as alleged and that the inspectors acted reasonably, and in
accordance with legal precedents in ordering the immediate withdrawal of
the miners. Further, MSHA asserts that the applicant has failed to sustain
its burden of proof with respect to both the threshold issue of no danger
and the issue of imminence. In support of this argument, MSHA argues that
while Consol put forward two witnesses, neither of them could offer any eyewitness testimony concerning the issues of danger or of imminence and no
direct evidence was offered by the applicant in this regard. MSHA concludes
that the applicant has failed to rebut by a preponderance of the evidence
the presumption of imminent danger which arose when the order was issued.

72

With regard to applicant's argument that the imminent danger order of
withdrawal is invalid because it cannot be held responsible for the condition which caused the imminent danger on coal mine property and that the
water dam in question is not owned, operated or controlled by applicant
and therefore, not subject to MSHA's jurisdiction, MSHA contends that both
arguments must be rejected. In support of its position, MSHA points out
that the section 107(a) order in question itself states that "this order
is issued through no fault _of the company," and that unlike orders of withdrawal issued pursuant to sections 104(d)(l) and (2), in which an inspector
must find that there there has been a violation of a mandatory health or
safety standard and that such a violation was caused by the unwarrantable
failure of the operator to comply, the valid issuance of an order issued
pursuant to section 107(a) does not require the finding of a violation of
a mandatory standard or any negligence attributable to the operator. Section 107(a) simply states that upon the finding that an imminent danger
exists, an order requiring the operator to withdraw all persons from the
affected areas shall be issued. The question in this proceeding, asserts
MSHA, is not whether the imminent danger as alleged was caused by applicant,
but rather, whether an imminent danger existed as alleged for miners working
at the Consolidation Four States No. 20 Mine. Citing the case of District 6
United Mine Workers v. United States Department of the Interior Board of Mine
Operations Appeals, 562 F.2d 1260 (1977), where the court held that imminent
danger could exist even without any failing by the mine operator, for example,
as a result of natural causes; whereas the other closures all involve some
negligence by the operator. MSHA points to the court's citation from the
legislative history of the Act which states that:
The concept of an imminent danger as it has evolved in
this industry is that the situation is so serious that the
miners must be removed from the danger forthwith when the
danger is discovered without waiting for any normal proceedings or notice. The seriousness of the situation demands
such immediate action. The first concern is the danger to
the miners. Delays even of a few minutes may be critical or
disastrous. After the miners are free of danger, then the
operator can expeditiously appeal the action of the inspector.
The imminent danger may be due to a violation of a mandatory
safety standard or some other cause not covered by a standard,
including natural causes. Senate Report No. 91-411 91st
Congress, 1st Session 90 (1969).
Finally, MSHA argues that the language of section 107(a) and the
definition of imminent danger in the Act specifically and deliberately
exclude any considerations of liability, cause, or negligence upon the part
of a mine operator, and that nowhere in the language of the Act or in
its legislative history can there be found any basis for restricting an
imminent danger to a situation whose cause, natural or otherwise, exists on
mining property. Citing District 6 United· Mine Workers, supra at 1267,
MSHA states that Congressional hearings, statutory language, and judicial
review all support the fact that "the clear intent of Congress is that coal

73

mines, or areas of coal mines, in which imminent danger was found to exist
must be evacuated at once, with the benefit of any doubt cut in favor of
withdrawal." The unmistakable intent of Congress is that it matters not one
whit what caused the imminent danger; the sole concern is that miners on
mine property be evacuated immediately. MSHA concludes that to adopt the
narrow, restrictive meaning of imminent danger proposed by applicant in this
proceeding would be in direct conflict with case law dealing with the inter. pretation of federal coal mine safety legislation, and it cites St. Mary's
Sewer Pipe Company v. Director of U.S. Bureau of Mines, 262 F.2d 378, 381
(3rd Cir. 1959), where the court said: "It is so obvious as to be beyond
dispute that in construing safety or remedial legislation, narrow or limited
construction is to be eschewed."
}ffiHA suggests that the interpretative principles set out in St. Mary's
Sewer Pipe, have been reaffirmed in the judicial decisions it has cited in
support of its case, and that the Conference Committee Repor_t in the legislative history of the 1969 Act further evidences the intention of Congress,
in stating as follows: "In adopting these provisions, the managers intend
that the Act be construed liberally when improved health or safety to miners
will result." Conference Report No. 91-761, 9lst Cong. 1st Sess. at 62.
Respondent UMWA
Respondent argues that the imminent danger in this case is the potential
of flooding the surface and underground of Consol's Four States No. 20 Mine
by the bursting of the Four States dam, which is classified as a "high hazard
potential structure * * *·" The dam is a high hazard potential structure,
"because there is a chance of loss of more than a few lives should failure
occur" (UMWA Exh. I, at 2). Citing the Fourth Circuit Court decision in
Westmoreland Coal Company v. Mine Safety and Health Review Commission and
Marshall, 606 F.2d 417 (1979), respondent argues that the condition or practice does have to exist in the mine that is shut down by a closure order, and
the miners do not have to be working at the time a closure order is issued.
Respondent asserts'that in the Westmoreland case, the court upheld MSHA's
closing of Westmoreland's Hampton #4 Mine because of the possibility that
the mine could be flooded with water from an abandoned, adjacent mine, and
that the court affirmed the Secretary's enforcement action, even though the
source of the imminent danger did not exist in the mine that was owned,
controlled, or operated by Westmoreland.
Respondent argues that the question of fault and control on the part of
a mine operator are not prerequisites to the issuance of a closure order,
and in support of this argument cites the Commission's decision of April 11,
1979, in MSHA v. Republic Steel Corp., Dockets MORG 76-21 and MORG 76-95-P,
holding Republic responsible for violations created by its independent contractor even though Republic could not have prevented the violations.
Respondent asserts that in both Westmoreland and Republic, the operator who
was subjected to the Secretary's enforcement action did not control the area
in which the dangerous condition existed, and although in each instance,
the operator who received the withdrawal order could not have prevented the

74

dangerous condition from occurring, neither of these facts was considered
an adequate reason for vacating the withdrawal order at issue and, in each
case, therefore, the Secretary's enforcement action was· upheld.
Citing a number of cases at page 9 of its brief, respondent argues
further that the reasonableness of the Secretary's construction of section
107(a) is apparent, since the Secretary has followed the mandate of Congress
and the Courts that the Act be construed liberally in order to promite its
primary purpose, that of promoting safety in the .mines. Citing the legislative history of the 1977 Act, Senate Report No. 95-181, 95th Cong., 1st
Sess. (1977), respondent states that the Senate Committee Report rejected a
construction of "imminent danger" which would require a finding by an
inspector that it would be as likely as not that a serious injury or death
would result before a condition might be abated. The report stated:
The Committee disavows any notion that imminent danger
can be defined in terms of a percentage of probability that
an accident will happen; rather the concept of imminent
danger requires an examination of the potential of the risk
to cause serious physical harm at any time. It is the
Committee's view that the authority under this section is
essential to the protection of miners and should be construed
expansively by inspectors and the Commission. Since we are
dealing with situations where there is an immediate danger of
death or serious physical harm. The Conunittee intends that
the Act give the necessary authority for the taking of action
to remove miners from risk. [Emphasis added.]
Turning to the evidence and testimony adduced at the hearing, respondent
points to the fact that Consol admitted some involvement with the dam and was
aware of its condition in that it had giv~n some piping to someone who ran
the waterworks, but has since discontinued the practice. In addition,
respondent argues that the testimony reflects that Consol employee Daniel
Hall ran the water works, that mine superintendent Jordan contacted him
about the pumping of the water, and that then Consol vice president Mauck
prevailed on Mr. Hall to take certain steps to prP.vent any future incident
involving the pumping of water over the face of the dam. Respondent
believes it is apparent on the facts here presented that an employee of
Consol, Mr. Mauck, felt he would be able to take steps to protect the miners
from an imminent danger in the future. Respondent concludes that the inspectors, after observing the water and the condition of the dam, could not disregarn the miners' safety and acted reasonably in issuing the section 107(a)
order, and that they need not wait until the water is on mine property
before issuing a section 107(a) order.
In its reply brief, respondent UMWA comments on applicant's discussion
of the jurisdictional and reasonable belie·f is!?ues, and it points to applicant's counsel's comments at the hearing where he stated:

Mr. Skrypak: "Your Honor, we have no problem with the
idea of the reasonable belief of the inspectors. If it

75

matters *. * * we would accept that, that the imminent danger
order is based on a reasonable belief by the inspectors. Our
position is purely jurisdictional, that he did not have the
jurisdiction over that outside force * * *·" [Emphasis
added.]
(Tr. 9, 11-17).
With regard to the applicant's arguments concerning the inspector's
training and expertise in evaluating water impoundments, respondent states
that applicant fails to mention that Mr. Ash has had 21 years of experience
before joining MSHA, much of the time at the Four States No. 20 Mine, and
that he was raised near the dam, saw it rebuilt, and knew the approximate
size and dimensions of the dam (Tr. 17, 39). Further, respondent argues
that while a stability analysis on the dam is not available, the Army Corps
of Engineers' report classified it as a "hazardous structure," and in fact,
asserts that the report had caused the pumping (which was the subject of the
instant action) to be initiated in the first place because, when the water
level raises, it must be kept 2 feet below the spillway (Tr. 145). Further,
respondent argues that the term "reasonableness," as used in the Act, means
reasonableness in the minds of the inspectors and not reasonableness as
interpreted by applicant. Just as applicant cannot realistically expect the
inspectors to wait until the water has reached mine property before issuing
their closure order, so, too, applicant cannot expect to have only a dam
expert issue the closure order. The inspector has adequate training to meet
MSHA requirements and he was backed by the Army Corps of Engineers' study
which stated that, whenever the water level rises, it must be kept 2 feet
below the spillway for safety precautions. Thus, respondent again concludes
that the 107(a) order was issued on a reasonable belief that the dam was in
danger of bursting before abatement of the condition might occur which would
endanger the lives of the miners working on the surface and underground at
th~ Four States No. 20 Mine.
Findings and Conclusions
Were the conditions describerl by the inspectors an imminent danger, and if
so, was the withdrawal order properly issued?
It is clear from the testimony of Inspectors Ash and Bowers that they
believed the dam would weaken and collapse if the pumping of the water over
the face of the dam and down the earthern embankment continued unabated.
Their conclusion that this event was likely to occur was based on their
observations of water being pumped and discharged in such a manner as to
cause erosion of materials from the earthern breastwork of the d.am, the
formation of a gulley which grew in depth and breadth as they made their
way across the dam structure during their inspection, water seepage which
they attributed to a breach in the dam structure.itself, other signs of
instability which they described during their testimony in support of the
withdrawal order, and their belief that had the dam collapsed, the surging
water would go down the hollow and inundate the mine, including the surface

76

preparation plant as well as the shafts. The inspectors' conclusions, both
as to the existence of an imminent danger, and the conditions which they
observed which led them to conclude that the dam would collapse if the pumping and discharging of the water continued unabated was supported by the
testimony of MSHA engineer Watkins who arrived at the dam site an hour or so
after the written withdrawal order was issued. Mr. Watkins examined the
existing conditions, including the water level in the dam, several leaks
which he believed were caused by seepage through the dam structure itself,
the gully being formed by the pumping and discharging of water through the
two liries described by the inspectors, sink holes, erosion being caused by
the pumping, and the existence of a high dam phreatic or seepage line which
he believed was a critical sign of the instability of the dam structure.
Mr. Watkins also believed that with the existence of all of these condit"ions, the dam was capable of collapsing, and if it did, the water would
flood the mine.
1he thrust of applicant's defense to the imminent danger order is its
belief that such an order may not be issued on the basis of an imminently
dangerous condition which exists outside of or off mine property, and MSHA's
lack of jurisdiction over the dam structure itself. Also, applicant maintains that the inspectors' lacked the necessary engineering expertise to
make an informed judgment as to the stability of the dam and that an afterthe-fact engineering study conducted by MSHA indicated that even if the dam
had collapsed, the water would only have reached the perimeter of the mine
property at the railroad yard and would not have innudated the preparation
plant or the underground mine shafts.
Regarding the actual conditions observed by the MSHA inspectors and

Mr. Watkins, none of the witnesses presented by applicant actually observed
those conditions on the evening of February 26 when the order issued.
Preparation Plant Foreman Simmons never visited the dam site and knew
nothing about the conditions observed there. Mine Superintendent Jordan
visited the dam site the day after the order issued and after the pumping
and discharging of water had ceased. Although he expressed little concern
over the condition of the dam, he agreed that had the pumping and discharge
of water continued for a couple of days, that would have been of some concern to him. He also indicated that the erosion and formation of the gulley,
which was the primary concern of the inspectors, would have concerned him
only if more rather than less of the face of the earthern portion of the
dam were affected by the erosion. It seems obvious to me that the continuous pumping and discharging of the water from the dam over and down the
earthern breastwork of the dam would have increased, rather than decreased,
the erosion, thus expanding the gulley being formed. Under the circumstances, taken in perspective, Mr. Jordan's "concerns" with respect to
the erosion and the existence of the gulley coincides with the concerns of
the inspectors.
After careful review and analysis of the testimony presented by MSHA in
support of the closure order in question, I find and conclude that the

77

inspectors acted properly in issuing the order and that their testimony supports their finding of an imminent danger. I am not persuaded by applicant's
arguments concerning the lack of engineering expertise by the inspectors at
the time they observed the conditions on which they based their action. It
seems clear to me that the inspectors were qualified to make a judgement as
to the existence of an imminent danger, that they were qualified mine inspectors of many years experience in mining, including the inspection of mines
and the detection of any perceived hazards which.may result from those
inspections. Further, I do not believe that one necessarily has to be a
professional engineer to determine whether an imminent danger actually
exists. Those judgments may, and in fact are, made by inspectors in the
normal course of their everyday mine inspections. The question presented is
whether on the facts presented they acted reasonably in the circumstances
presented on the evening of February 26, 1979. In this case, both inspectors were experienced inspectors and they had adequate training in the
detection of conditions which could lead to the collapse of a dam structure.
The fact that they were proved subsequently wrong with respect to the question of whether the water would actually reach the dam in the event of a
collapse is immaterial to their judgement call made on the evening of
February 26. The legislative history of the concept of "imminent danger,"
as well as the case law previously discussed herein makes it clear to me
that the inspector's made the proper decision and that the facts and circumstances which they observed supports their judgement that an imminent
danger did in fact exist at the time the order was issued.
Applicant's suggestion that an inspector must wait upon the arrival of
a professional engineer or water impoundment expert, or must await the result
of engineering studies·before taking any action to insure the safety of
miners is rejected. Faced with the situation of a possible dam collapse and
the inundation of the mine from that collapse, the inspectors need not wait
the results of further testing or studies before taking immediate appropriate action to protect the lives of miners. They are compelled to take prompt
action, and to do anything less would endanger lives and lessen the impact
of what Congress intended when it enacted the imminent danger withdrawal
sanction of section 107(a). A literal application of applicant's argument
on this point would require an inspector to sit back and wait until the
water from the dam is running down the mine shafts before taking any action.
On the facts presented here, if the inspectors had not acted and the pumping
of water had continued unabated and uninterrupted, I conclude that it was
just as probable as not that the earthern portion of the dam would have
weakened and washed away to the point where it was likely that it would
have collapsed and released a torrent of water downstream in the direction
of the mine. Under the circumstances, it seems clear to me that the inspectors' intent in issuing the order was to remove the miners from the
imminently dangerous position they were in and to insulate them from the
possibility of being exposed to the water had it reached the mine shafts.
Further, as pointed out by the UMWA in its.brief, applicant's counsel more
or less conceded during oral arguments at the hearing that the inspectors'
finding of imminent danger was based on their reasonable belief that the
conditions they observed presented an imminently dangerous situation.

78

May an imminent danger order be sustained in the basis of an imminently
dangerous condition which exists off mine property?
After careful review and consideration of the arguments presented by
the parties with respect to the question of whether extrinsic factors off
mine property may serve as the basis for a finding of imminent danger affecting miners on mine property, I conclude and find that the arguments advanced
by the respondents in this· case are correct and that those advanced by the
applicant must be rejected. While it may true that on its face, the
definition of "imminent danger" as stated in section 3(j) speaks in terms
of conditions or practices in a mine, it is also true and without question
that the courts have construed the Act broadly and liberally so as to effectuate Congressional intent to insure the safety of miners while in their
work environment. It seems clear to me from the legislative history and the
court decisions cited by the respondents that the Act has been liberally construed on the side of safety and that once it-is established that an imminent danger posing a threat to the lives and safety of miners has been
established it matters not that the source of the imminent danger is some
exstinsic set of circumstances. On the facts of this case, it seems clear
that the imminent danger was the liklihood of a dam failure which the inspectors reasonably believed would have resulted in a torrent of water inundating the mine. In such circumstances, I cannot conclude that the inspectors acted unreasonably. Further, it seems clear that applicant too does
not seriously contest the fact that such an imminent danger should be
ignored. Aside from the legalistic and strict interpretation arguments
advanced by the applicant in defense of the closure order, applicant still
maintains that it would have voluntarily withdrawn miners without prodding
from MSHA if in fact an imminent danger existed and that it did so in the
past when it ceased mining operations and withdrew miners in December 1978
when the dam crested and resulted in an evacuation of persons downstream by
several local agencies.
With respect to the question of whether MSHA had initial jurisdiction
over the dam, the fact is that notwithstanding MSHA's own admission that it
lacks inspection jurisdiction over the dam, the inspectors did venture on
the dam property, albeit as trespassers, and determined that an imminent
danger in fact existed. That is a fact that I cannot ignore, and coupled
w.1..th the additional fact that the dam owner lodged no protest to the presence of the inspectors at the time the closure order was issued, I am constrained to apply the facts as I find them. Here, as previously found and
concluded by me, the dam conditions as observed by the inspectors on the
evening of February 26, constituted an imminent danger and they acted reasonably so as to protect the miners from harm. Under the circumstances, while
the inspectors may not have had enforcement jurisdiction over the dam
per se, they did have jurisdiction under the Act to determine the existence
of any imminent danger to the miners and to take appropriate action to
insure the safety of the miners and to insulate them from any hazards posed
by that danger.
I believe it is clear from the evidence and testimony presented in this
proceeding thar applicant did not own, operate, or other control the dam

79

structure which in fact created the imminently dangerous condition found by the
inspectors on the_evening of February 26, 1979. Further, while it is true
that applicant did not initially create the imminent danger nor exercised
any legal control over the abatement of the conditions which resulted in the
imminent danger, it is clear from the facts presented in this case that the abatement was a direct result of applicant's exercise of its influence over
the person who was manning the pumps. While Mr. Hall's status as an
anployee of Consol may not be considered in a technical sense as creating
an employee-employer relationship concering the dam and the pumping of
water that was taking place on February 26, the fact is that applicant's
then vice president prevailed on Mr. Hall to take the necessary steps to
stop the pumping, thereby insuring the abatement and eventual termination
of the closure order. In addition, one may infer that from a practical and
realistic point of view, this act on the part of a Consol official precluded
the future pumping of water in such a manner which undoubtedly would again
expose the mine to another possible closure order. Thus, on the facts here
presented, while applicant may be correct when it argues that it has no
legal responsibility to insure against future pumping of the water in the
manner in which it was being pumped on February 26, it seems clear to me
that Mr. Hall would not want to again place himself in a similar position
of defying or ignoring the pleas of his own employer to cease and desist
from any future course of actions which would inevitably lead to another
mine closure order and loss of production, irrespective of the fact that
Consol may not have any legal obligations to intercede.
Although one may sympathize with Consol's predicament with respect to
the abatement process, the fact is that on the facts of this case abatement
was achieved through the direct intervention of Consol and that fact should
be appreciated and recognized by all concerned. This is particularly true
in this case where it seems clear that while the dam in question has for many
years been a source of potential threats, not only to the miners and a community hall downstream, but to all of the inhabitants of the Four States Community, no one has taken any direct action to conduct stability studies and to
take the necessary construction corrective action to insure against the loss
of property and lives in the event of a dam failure. It also seems clear,
and MSHA concedes, that the imminent danger resulted from no fault on the
part of applicant, and MSHA should seriously consider this fact if it is
contemplating filing a separate civil penalty proceeding seeking an assessment against Consol for the imminently dangerous conditions created by the
dam on February 26. I take note of the fact that the language of section
107(a) with regard to the assessment of any civil penalty on the facts here
presented suggests that the filing of any such act is discretionary or
permissive rather than mandatory, and that considering the circumstances
here presented, a civil penalty proceeding may be inequitable.
Conclusion
In view of the aforementioned findings and conclusions, and on the
basis of the preponderance of the reliable and probative evidence adduced

80

in this proceeding, I find and conclude that the conditions described in
the order of withdrawal constituted an imminent danger and that the order was
issued. The evidence of record supports the judgment of the inspectors that
the conditions they found on the day in question presented a situation that
could reasonably be expected to result in death or serious injury to the
miners in the Four States No. 20 Mine before the conditions could be abated
and that normal mining operations could not continue or proceed until those
cqnditions were abated.
Order
Order of Withdrawal No. 814153 issued February 26, 1979, is AFFIRMED
and this proceeding is DISMISSED.

~~EKoutr
t;U1

~

/r//~ ~ ' ~
"
Administrative Law Judge

Distribution:
Leo J. McGinn, Trial Attorney, U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
Karl T. Skrypak, Esq., Consolidation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900 15th St., N.W., Washington, D.C. 20005 (Certified Mail)
Standard Distribution

81

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

JAN 2 3 1980.
RAVEN MINING COMPANY,

Contest of Citation and Order
Contestant

v.

Docket No. NORT 79-78

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

Order No. 0678141
January 22, 1979
Respondent

Citation No. 035139
January 8, 1979

UNITED MINE WORKERS OF AMERICA,
(UMWA),
Respondent

No. 1 Mine

DECISION
Appearances:

J. Perry Dotson, Esq., Norton, Virginia, for the contestant;
Leo McGinn, Trial Attorney, U.S. Department of Labor,
Arlington, Virginia, for the respondent MSHA.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a contest filed by Raven Mining Company on
March 2, 1979, challenging the legality of the issuance of the captioned
citation and order. The notice of contest° is in the form of a letter dated
February 8, 1979, from contestant's attorney, challenging the fact of violation and requesting a hearing on the closure order for the purpose of
"determining damages sustained" by Raven Mining Company.
Respondent MSHA filed an answer on March 28, 1979, and asserted that the
order was properly issued after contestant failed to take reasonable steps
to abate the citation after an extension of the original time for abatement
had been granted by the inspector who issued the citation. By notice of
hearing issued on July 11, 1979, the matter was scheduled for hearing in
Bristol, Virginia, September 11, 1979. Thereafter, on August 23, 1979,
MSHA filed a motion to dismiss on the ground that the Act does not provide
a remedy for recovery of "damages" sustained by a mine operator as a result
of a closure order, and that a final order assessing a civil penalty in
the amount of $160 for the violation in question was entered on May 23,

82

1979, and upon subsequent non-payment, was forwarded .to the Department of
Justice for collection on July 12, 1979. The collection procedure initiated
by MSHA pursuant to 30 CFR 100.5 and 100.6, resulted from contestant's failure to respond to the initial notice of assessment issued by MSHA. Since
MSHA's motion to dismiss was filed well after the notice of hearing, no
ruling was made and the parties were directed to appear at the hearing and
MSHA was afforded an opportunity to be heard on its motion. A hearing was
conducted on the merits of the withdrawal order and the parties were
afforded a full opportunity to be heard on all issues presented in the proceeding. The parties were afforded an opportunity to file posthearing
briefs but declined to do so.
Issues Presented
1. Whether the final disposition of the civil penalty proceeding pursuant to Part 100, Title 30, .Code of Federal Regulations, which resulted from
contestant's failure to timely challenge the issuance of the citation, precluded contestant from challenging the propriety and legality of the closure
order which resulted from the failure to abate the citation within the time
fixed by the inspector.
2. Whether the time fixed for abatement of the citation was reasonable
and whether the closure order was properly issued.
Applicable Statutory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801

~~·
2.

Sections 104(a) and (b) of the Act, which states as follows:

(a) If, upon inspection or investigation, the Secretary
or his authorized representative believes that an operator
of a coal or other mine subject to this Act has violated this
Act, or any mandatory health or safety standard, rule, or
regulation promulgated pursuant to this Act, he shall, with
reasonable promptness, issue a citation to the operator.
Each citation shall be in writing and shall describe with
particularity the nature of the violation, including a
reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition,
the citation shall fix a reasonable time for the abatement of
the violation. The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional
prerequisite to the enforcement of any provision of this Act.
(b) If, upon any follow-up inspection of a coal or
other mine, an authorized representative of the Secretary
finds (1) that a violation described in a citation issued
pursuant to subsection (a) has not been totally abated within

83

the period of time as originally fixed therein or as subsequently extended, and (2) that the period of time for the
abatement should not be further extended, he shall determine
the extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such mine
or his agent to immediately cause all persons, exc.ept those
persons referred to in subsection (c), to be withdrawn from,
and to be prohibited from entering, such area· until an
authorized representative of the Secretary determines that
such violation has been abated.
DISCUSSION
Background of the Controversy
On January 8, 1979, at approximately 9:45 a.m., MSHA inspector Joseph
Tankersley issued Citation No. 035139 pursuant to section 104(a) of the Act
charging a violation of 30 CFR 75.1713-2. He fixed the abatement time as
9 a.m., January 12, 1979, and the citation stated as follows: "A communications system was not provided at the mine where the nearest point of medical
assistance in case of an emergency could be contacted. (The phone company
had removed the phone from mine property)."
Qn January 12, 1979,-the inspector extended the abatement time to
January 19, 1979, and the reason given for the extension was stated as follows: "The mine foreman stated that the operator contacted the phone company, and they are going to install the phone as they could get to it.
More time is needed for t"he telephone company to install the telephone."
On January 22, 1979, the inspector issued a section 104(b) order of
withdrawal and the basis for this action is shown on the face of the order
as follows: "A communication system has not been provided at the mine where
medical assistance could be contacted in the event of an emergency."
The inspector modified the withdrawal order on January 23, 1979, to show
that the entire mine and surface work areas were closed. He further modified
the closure order on January 24, 1979, to allow mine operations to continue,
and the reasons for this action are shown on the face of the modification
order as follows: "This is a modification allowing the operator to resume
operations due to the fact that Moss 3~A Mine, Clinchfield Coal Company is
readily available (estimated five (5) minutes travel) and the operator is
installing communications to the Moss 3-A Mine. Moss 3-A personnel have
agreed to the communication system."
The order was subsequently terminated on January 26, 1979, after abatement of the cited conditions and after telephone communications were established between the Raven Mine and the Clinchfield Mine, and Clinchfield
agreed to supply emergency ambulance service. The telephone communications
between the two mines is the system presently in use and MSHA has now

84

accepted this arrangement as compliance with the requirements of section
75.1713-2 (Tr. 78-84).
Testimony and Evidence Adduced by MSHA
MSHA inspector Joseph R. Tankersley testified that he issued the citation and order in question, and he identified copies of the citation, order,
the modification of the order, and the termination of the order (Exhs. G-4
through G-6). During his January 8th inspection, he noticed that the telephone which had been installed for emergency communication had been removed
from the mine. Based on conversations with the mine foreman, he ascertained
that the telephone was removed by the phone company for failure to pay delinquent bills. The phone jack was still on the wall of the mine office and he
had observed the telephone during previous mine inspections. The phone was'
installed to comply with section 75.1713-2, and mine president
James C. Scarborough, had previously submitted a letter to the MSHA district
manager advising that the emergency communication system would be by telephone. The letter stated that the operator would contact the Dante Clinic
by telephone in emergency cases (Tr. 37). Inspector Tankersley explained the
requirement of the standard to the foreman, and when asked whether a CB
radio was acceptable to meet the requirements of section 75 .1713-2, he
advised him that it was. However, a CB radio was not located on mine property during the January 8th inspection. The CB radio was kept in the mine
foreman's personal vehicle which was being used by his wife on that day,
and anytime miners or their wives used the vehicles, the CB' s would be off
mine property. When he inspected the mine on January 8, 1979, there was
no automobile or CB radio on mine property, and there was no other form
of communications available.
Inspec:tor Tankersley testified that he fixed January 19 as the abatement time, but could not return to the mine until January 22, at which time
he found that the mine phone had not been reinstalled because of non-payment
of back bills. He modified his order on January 24, because Mr. Scarborough
spoke with MSHA's subdistrict manager about providing an alternate communication system whereby Mr. Scarborough and the district manager agreed that a
telephone line would be extended to the Clinchfield Mine, approximately
300 yards away, and Clinchfield Coal Company agreed to provide the Raven
Mine with emergency ambulance service. Upon the subsequent installation of
the telphone on January 26, he .terminated the withdrawal order. Although
he modified and terminated the withdrawal order, Mr. Tankersley did not
believe that the contestant acted in a reasonable manner in abating the
citation and withdrawal order because non-payment of bills is not a valid
reason. The first time contestant attempted to negotiate with Clinchfield
about a telephone line was January 24, 1979, and prior to this time contestant refused to pay the delinquent telephone bills, but the telephone
was subsequently reinstalled at the mine (Tr. 33-43).
On cross-examination, Inspector Tankersley testified that section
75.1713-2 permits the use several means of communications, such as a phone,
CB, vehicle radio phone, or "any other means of prompt communcation to the
nearest point of medical assistance." He stated that "any other means of

85

prompt communication" means some kind of positive communication between the
medical facility and the mine, and it does not mean face-to-face vocal
communication. He would not accept as compliance Mr. Scarborough running
to the Clinchfield Mine to seek ambulance assistance in the event of an
accident. Although the Dante Clinic is some 5 miles, or 20 minutes, from
the mine, whereas the Clinchfield Mine is 5 minutes away and has an ambulan~e available, Clinchfield does not have the medical personnel as does
the clinic, and the intent of section 75.1713-2 is' to provide medical
service. Further, even though Mr. Scarborough is a lessee of Clinchfield,
it is debatable whether Clinchfield would render assistance (Tr. 43-47).
At the time the telephone line to Clinchfield was being installed on
January 25, a CB system would have sufficed as long as there were someone
present all the time to answer it. He did not believe that someone running to Clinchfield would satisfy the requirement of promptness (Tr. 48).
There have been no medical emergencies at the mine (Tr. 48).
Responding to a question about section 75.1713-1, Mr. Tankersley testi-.
fied that it requires the mine operator to advise the district manager of
the type of communication plan used at the mine so the district manager can
determine whether it complies with the standard, and if there are changes,
the operator is required to notify.the district manager within 10 days.
Section 75.1713-2 allows the operator to determine whether or not the change
in communication complies with the requirements (Tr. 49).
On redirect examination, Inspector Tankersley testified that the "Paul
Revere" type of communication, as opposed to the telephone line to the
Clinchfield Mine, is not satisfactory because the 300 yard distance by foot
is not easily traveled o~ accessible during snow or rainy weather. If an
accident occurs on mine property, the operator is required to maintain a
permanent telephone number for the emergency medical facilities posted (Tr.
50).
On recross-examination, Mr. Tankersley testified that the Clinchfield
Moss 3A Mine is 300 yards higher on the mountain than the Raven mine, and
the mines are connected by a haulage road. Miners frequently use a vehicle
in traveling on the haulage road to and from both mines (Tr. 51-52).
Responding to a bench question about whether he was aware of the existence
of an alternate means of communication when he issued the citation on
January 9, 1979, Inspector Tankersley stated that he was not (Tr. 55).
Calls from the mine to the Dante Clinic were not made by CB radio, and the
reason for issuing the citation was that he observed no telephone at the mine
(Tr. 57).

'

On redirect examination, Inspector Tankersley testified that if the
telephone had been replaced in the mine office by a CB radio, he would not
have issued a citation, and had he observed any telephone communication
between the two mines, he would have contacted personnel at the other mine
to ascertain whether this arrangement was acceptable (Tr. 58).

86

On recross~examination, Inspector Tankersley testified that he does not
inspect any mines that are using CB radios. In Kentucky, MSHA inspectors
have accepted CB radios under section 75.1713-1 only if they are installed
in the mine office, but a CB radio installed in a vehicle which is not on
mine property at all times does not comply with section 75.1713-1 (Tr. 59).
Contestant's Testimony
James c. Scarborough, President o~ Raven Mining Company, testified that
he probably wrote up .a communication plan, but when he first started operations, he could not obtain telephones. In view of the fact that the C & P
Telephone Company was slow in installing telephones, he installed a telephone line down the hill to the Clinchfield Mine and used that system as
a mine telephone. Although Mr. Tankersley did not inspect the mine at that
time, another inspector did and and he accepted the system. On January 8,
the mine used a CB radio instead of a telephone, because the existing line
to Clinchfield was broken by a truck. When the CB was being used he did
not advise MSHA of the change because he was not aware that he had to, and
he spoke to no inspector about it (Tr. 62). He could not recall whether the
phone was out or in and indicated that he was experiencing difficulties in
maintaining the phone in working order when it rained and that the phone
company could not maintain it in operating order (Tr. 63).

Mr. Scarborough testified that his CB arrangements entailed arrangements with a Mr. Darrel Duty, who is home all the time working with CB's. In
the event of the need for medical assistance, a call would be made to
Mr. Duty from a CB in three trucks at the mine and he in turn would call the
Coeburn Rescue Squad which was an hours drive away. There was no CB in the
mine office. This plan.never included the Dante Clinic, and Mr. Scarborough
stated he did not know that the Dante Clinic had an ambulance service. This
arrangement was the mine plan which was filed with MSHA in addition to the
plan to run to the adjacent clinchfield mine to summon their ambulance in
the event of an emergency. He then stated that the CB plan was not filed
with MSHA's district manager, but that it was in use at the mine. The
district manager was also not informed about the arrangements to use
Clinchfield's ambulance, but frequent trips are made to that mine either by
automobile over the road or on foot. In addition, he can yell down to the
mine and can be heard. He has never discussed this plan with Inspector
Tankersley (Tr. 63-68).
Mr. Scarborough stated that under his interpretation of section
75 .1713-2, he can "holler at somebody and· get communication, it's just as
well as talking to somebody on the telephone." He was not at the mine when
the inspector was there on January 8, but he set up a CB radio after that
time and his employee assured him from that day on that the three vehicles
with CB's would be at the mine at all times. He learned from his employee
that when the inspector returned to the mine, he refused an offer to call
Mr. Duty on the CB and issued his closure order (Tr. 69).
Mr. Scarborough stated that he is not protesting the fact that the
inspector issued a citation on January 8 after he observed that there was no

87

phone in the mine office. His protest is of the closure order after he
established CB communication and the procedure for running to the Clinchfield
mine for assistance (Tr. 77).
On cross-examination, Mr. Scarborough testified that he did not know
when the telephone was removed from the mine office, nor he know whether the
foreman's truck with the CB radio was off mine property. Although he did
not see or talk to Inspector Tankersley, he testified that Mr. Tankersley
returned to the mine on January 12, the date on which the citation was
scheduled to be terminated, and he spoke with foreman Gary Johnson, and
granted an extension for abatement until January 19. He further testified
that he did not see or talk to Inspector Tankersley during the citation
closure stage, and Mr. Johnson informed him about the CB arrangements with
Mr. Duty, but that he personally has never met Mr. Duty (Tr. 91-93).
Although the mine was operating under two shifts when the citation was
issued, all three employees with the CB's in their trucks were on mine
property at all times even though they worked only one shift. Now that the
mine is operating under one shift, all three employees are present (Tr. 94).
Responding to a question about the reinstallation of the telephone
system between his mine and the Clinchfield Mine, Mr. Scarborough testified
that he authorized the issuance of a telephone order on January 22, 1979.
Although Inspector Tankersley granted respondent 3 days beyond the extension
to January 22, he testified that it was unreasonable for him for not trying out the CB radio. If all three employees were there, a CB radio was
guaranteed to be there. Foreman Gary Johnson has never been absent since
the mine has been in operation, and Mr. Johnson told him that Inspector
Tankersley was mistaken about the CB radio truck being taken away by his
wife on January 8, 1979 (Tr. 96).
Findings and Conclusions
Reviewability of the Closure Order
During the hearing, MSHA reasserted its view that the contest should be·
dismissed because the pleadings filed by the contestant indicated a desire
by contestant to be heard on the limited question of "damages" sustained
by the closure order. Since the Act does not provide for monetary damages,
and since a final default order assessing a civil penalty in the amount of
$160 for the citation in question was entered on May 23, 1979, and forwarded
to the Justice Department for collection on July 12, 1979, MSHA argues that
the operator's opportunity for affirmatively pleading economic loss as a
mitigating factor in the amount of any penalty assessed is irrevocably lost
(Tr. 8-10; MSHA's Motion to Dismiss, filed August 23, 1979).
Contestant argued that its intent in filing its initial notice of contest on February 8, 1979, was to challenge both the fact of violation and
the subsequent withdrawal order which issued. Contestant maintained that
it should be given the opportunity to establish and prove its contention
that at the time the citation issued, contestant did in fact have a communications system in effect at the mine which met the requirements of

88

section 75.1713-2, that the issuance of the citation and the order were
arbitrary, and that contestant should be entitled to present its case so
as to avail itself of all available administrative, as well as economic
remedies to which it is entitled under the Act (Tr. 12-14).
It would appear from the record in this case that no formal civil penalty proceeding has ever been filed by MSHA with the Commission, and this
resulted from the fact that the contestant did not contest the initial proposed penalty issued by MSHA pursuant to 30 CFR 100.5 and 100.6, and the
matter culminated in a default order being forwarded to the Department of
Justice for collection of the $160 assessment for Citation No. 035139.
Under the circumstances, I agree with MSHA's assertion that contestant is
foreclosed from pleading any off-set resulting from the closure order in
its current contest. However, it seems clear that in a civil penalty proceeding, the validity of the order is not in issue, and withdrawal orders
are not subject to vacation, Buffalo Mining Company, 2 IBMA 327 (1973);
Plateau Mining Company, 2 IBMA 303 (1973); Ashland Mining Company, 5 IBMA
259 (1975); Jewell Ridge Coal Company, 3 IBMA 376 (1974). The usual method
for an operator to contest the propriety and legality of a withdrawal order
is to seek review pursuant to section 105(d) of the Act, and the fact that
the conditions cited have been abated and the order terminated does not warrant dismissal of the contest, Zeigler Coal Company, 1 IBMA 72 (1971). On
the facts and circumstances presented in this proceeding, I conclude that
contestant is entitled to an independent review of the validity and propriety of the closure order issued pursuant to section 104(b) of the Act,
notwithstanding the fact that it did not contest the initial proposed civil
penalty assessment. Under the circumstances, MSHA's narrow and restrictive
reading of the notice of.contest filed in this case is rejected and its
motion to dismiss is DENIED. I conclude that contestant has a right to seek
review of the reasonableness of the abatement time, and coupled with the
fact that it may be liable to compensate miners under section 111 of the Act
for the period of time the mine was closed as a result of that order, it is
is entitled to its day in court, and MSHA conceded as much during oral argument (Tr. 20-23, 26). Although it is true the notice of contest filed by
the contestant on February 8, 1979, makes reference to a desire for a hearing "to determine damages" sustained by the contestant as a result of the
closure order, I believe that the pleadings should be broadly construed so
as to protect not only the rights of miners, but mine operators as well.
Reasonableness of the Abatement Time
The underlying citation issued in this case charges the contestant
with a violation of 30 CFR 75.1713-2, which provides as follows:
(a) Each operator of an underground coal mine shall
establish and maintain a communication system from the mine
to the nearest point of medical assistance for use in an
emergency.

89

(b) The emergency communication system required to be
maintained under paragraph (a) of this § 75.1713-2 may be
established by telephone or radio transmission or by any
other means of prompt communicationi to any facility (for
example, the local sheriff, the State highway patrol, or
local hospital) which has available the means of communication with the person or persons providing emergency
medical assistance or transportation in accordance with
the provisions of § 75.1713-1.
The citation was initially issued on January 8, 1979, and the original
abatement time was fixed as January 12, 1979, and subsequently extended to
January 19, 1979. The inspector did not return to the mine until January 22,
1979, and at that time made the determination that abatement had not been
achieved and that the time should not be further extended. Under the circumstances, he then proceeded to issue his withdrawal order, and the issue
presented is whether the inspector acted reasonably in light of all of the
prevailing circumstances. In this regard, it seems clear that where an
inspector finds that a violation has not been abated within the initial or
extended time fixed by him, he is authorized to either grant another extension or issue a withdrawal order. The inspector must act reasonably on
the basis of the facts confronting him at that time, United States Steel
Corporation, 7 IBMA 109 (1976), and it is an abuse of discretion to issue
a withdrawal order if the circumstances show that the time for abatement
should have been further extended, Old Ben Coal Company, 6 IBMA 294 (1976).
The contestant has the burden of establishing that the inspector acted
unreasonably in fixing or failing to extend the abatement time, Freeman
Coal Mining Corporation, 1IBMA1 (1970).
It seems clear from the record in this proceeding that the inspector
issued the initial citation when he failed to find a telephone installed in
the mine office. Although he observed a phone jack, the telephone was missing, and upon further inquiry he learned that the phone had been removed
because of non-payment of past bills. Contestant has presented no evidence
to dispute this fact, and Mr. Scarborough did not deny it. The inspector
believed that a violation occurred because contestant failed to maintain
its telephone communications between the mine and a local clinic, and this
arrangement was the only one on file with the local MSHA district office.
Further, during the course of oral argument at the hearing, contestant
indicated that it was not challenging the initial citation issued by the
inspector as a result of his failure to find a telephone installed in the
mine office (Tr. 76). Contestant's defense to the order is based on the
assertion that subsequent to the issuance of the citation, contestant did
in fact establish a communications system which complied with section
75.1713-2, when it instituted a procedure for voice of foot communications
with the adjacent Clinchfield Mine and a system for use of CB radios
mounted on vehicles which were on mine property. In these circumstances,
contestant argued that it was in compliance at the time the order issued
and that the inspector acted arbitrarily and unreasonably in failing to
accept these procedures as compliance and in issuing his closure order (Tr.
75-80).

90

Although Mr. Scarborough alluded to the fact that he had somehow
changed his communication plan which had been filed with MSHA, and
intimated that MSHA had accepted something less than telephone communications, it seems clear from the abatement and the testimony presented by
both Mr. Scarborough and the inspector, that abatement was achieved by
the installation of a phone line between the Raven Mine and Clinchfield
Mine so that emergency ambulance service could be provided, and that MSHA
will not accept CB communications mounted in a mine vehicle or voice
and/or foot communication as compliance (Tr. 79-85). It is also clear to
me that contestant's .attempts at compliance by utilizing means other than
a telephone system took place during the abatement period (Tr. 89).
Mr. Scarborough was not at the mine when the withdrawal order was issued
on January 22, and he believed the inspector acted unreasonably by not trying out the CB radio arrangements (Tr. 95). Aside from the fact that it
can be argued that contestant has waived its right to contest the fact of
violation by not contesting the original civil penalty assessment and permitted that assessment to ripen into a default judgment, the facts and
evidence adduced at· the hearing in this contest proceeding supports a
finding of a violation of the cited standard. It seems clear from the
record that at the time the citation issued, contestant was not in compliance with section 75.1713-2, because it did not have the required operative telephone communications arrangements with respect to emergency
medical assistance.
With respect to the reasonableness of the abatement time, I find and
conclude that the record establishes that the inspector acted in more than
a reasonable fashion in fixing the initial abatement time, as well as in
the exercise of his discretion in not extending the abatement time any
further. On the basis of the evidence adduced here, it seems clear to me
that contestant's failure to maintain the required emergency telephone
communications stems from the fact that contestant failed to pay its past
due telephone bills. That is a matter solely within the contestant's control, and I can find no mitigating circtnnstances presented which detracts
from that fact. The initial abatement time was more than ample for contestant to resolve the matter with the phone company. As a matter of fact,
contestant was gratuitously given an additional period for compliance from
January 19 to January 22. However, on the basis of the record here presented that time was apparently spent by contestant in an effort to convince
MSHA that his alternative communications efforts were in compliance rather
than to comply with the citation and timely reinstall the phone. Considering the totality of the circtnnstances presented, I conclude and find that
the time fixed for abatement was reasonable and that the inspector was not
arbitrary in failing to extend the abatement time further. The order is
AFFIRMED.
ORDER
In view of the foregoing findings and conc~usions, Citation No. 035139,
issued January 8, 1979, and Order of Withdrawal No. 0678141, issued
January 22, 1979, are AFFIRMED, and contestant's request for any relief

91

with respect to ·the issuance of the citation and order pursuant to the Act
is DENIED and this contest is DISMISSED.

~t{,~
Administrative Law Judge

Distribution:
J. Perry Dotson~ Esq., Earls, Wolfe & Farmer, 470 Park Avenue, Norton,
VA 24273 (Certified Mail)
Leo McGinn, Trial Attorney, Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

92

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

JAN 2 4 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
ANTHONY E. HERIGES,

Complaints of Discharge,
Discrimination, or Interference
Docket No. KENT 80-22-D
CD 79-103
Applicant

v.

Docket No. KENT 80-23-D
CD 79-113

ISLAND CREEK COAL COMPANY,
Respondent

Hamilton No. 2 Mine
Morganfield, Kentucky

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
TOM ANTONINI,
Applicant

Docket No. KENT 80-15-D
CD 79-133

ISLAND CREEK COAL COMPANY,
Respondent

Docket No. KENT 80-14-D
CD 79-97

v.

Hamilton No. 1 Mine
Madisonville, Kentucky
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
JOHNNY GIBSON,
Applicant

v.

Docket No. KENT 80-42-D

GD 79-198

No. 9 Mine
ISLAND CREEK COAL COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of LARRY HALEY,
Applicant
v.

Docket No. KENT 80-52-D
CD 79-199

93

ISLAND CREEK COAL COMPANY,
Respondent

No. 9 Mine

ORDER OF DISMISSAL
The Secretary filed his response to my December 20, 1979 and January 3,
1980 Orders to Show Cause why the above cases should not be dismissed in
light of the Commission's decision in Secretary of Labor, Mine Safety and
Health Administration (MSHA) v. The Helen Mining Co., Docket No.
PITT 79-llP, 1 FMSHRC Dees. 1796 (1979), appeal docketed, No. 79-2537
(D.C. Cir. Dec. 21, 1979).
Most of the Secretary's arguments are directed to the soundness of the
Commission's reasoning in Helen Mining. I have no power to disturb that
decision. Thus, the Secretary must demonstrate that the facts of these
cases are sufficiently distinguishable from those in Helen Mining that the
latter case is not controlling. The Secretary argues that:
"Helen Mining-, supra, specifically addresses the spot
inspection required by § 103(i) of the Act. This section
requires the Secretary by his authorized representative to
conduct spot inspections at irregular intervals where the
mine to be inspected is found to liberate a given quantity
of methane gas. Only Tom Antonini, Docket No. KENT 80-15-D,
CD 79-133, is a true 103(i) inspection matter. The other
cases under consideration involve spot inspection of a different nature than the type contemplated by Helen Mining,
supra. ConsequentlY., Helen Mining, supra, should not constitute precedent which would cause a dismissal of the complaints of discrimination." Secretary's Response at 10.
I do not find this argtnnent to be convincing. In Helen Mining, the
Commission stated the issue as "whether a mine operator must pay a miners'
representative for the time he spends accompanying a mine inspector during
a 'spot' inspection required by section 103(i) of the Federal Mine Safety
and Health Act of 1977 * * *" 1 FMSHRC Dec. 1796. The Commission's analysis
of the statutory language and legislative history of the Act clearly indicates that the decision was not intended to be so limited. The following
statement of Congressman Perkins, made during an oral report to the House
on the results of the conference committee's deliberations, was relied on by
the Commission in Helen:

"* * * [I]t 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 regarding 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." 1 FMSHRC Dees at 1804 quoting Legislative History
of the Federal Mine Safety and Heal th Act of 1977 at 1358.

94

This evidence of legislative intent is equally dispositive of the
issue presented here. Furthermore, after the Commission's decision in
Helen Mining, it again relied upon Congressman Perkins' remarks in holding
that a miners' representative was not entitled to walkaround pay for the
time spent accompanying an inspector during a special electrical inspection. Kentland-Elkhorn Coal Corporation v. Secretary of Labor, Mine Safety
and Health Administration (MSHA), and United Mine Workers of America,
Docket No. PIKE 78-399, 1 FMSHRC Dees. 1833 (1979), appeal docketed,
No. 79-2536 (D.C. Cir. Dec. 21, 1979).
ORDER
The cases are DISMISSED withou~ prejudice.

~/L~
Edwin S. Bernstein
Administrative Law Judge
Distribution:
William F. Taylor, Attorney, Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Marshall s. Peace, Ass't. Corporate Counsel, Island Creek Coal Company,
2355 Harrodsburg Road, P.O. Box 11430, Lexington, KY 40575 (Certified
Mail)
Office of Special Investigation_, MSHA, U.S. Department of Laobr, 4015
Wilson Boulevard, Arlington, VA 22203

95

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
520 3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 2 4 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMIN:LSTRATION (MSHA),

Civil Penalty Proceeding
...
Docket No. WEVA 79-293
A.O. No. 46-03859-03029

Petitioner
v.

Sewell No. lA Mine
SEWELL COAL COMPANY,
Respondent
DECISION
Pursuant to Section llO(a) of the Federal Mine Safety and Health Act of
1977 (the Act), the Secretary of Labor petitioned for the assessment of a
civil penalty. Petitioner alleged that Respondent violated the mandatory
safety standard at 30 CFR 75.1403-6(b)(3). That standard provides that:
"[E]ach track-mounted self-propelled personnel carrier should: * * * [b]e
equipped with properly installed and well-maintained sanding devices, except
that personnel carriers (jitneys), which transport not more than 5 men, need
not be equipped with .such sanding device * * *·"
A hearing was held on December 17, 1979, in Charleston, West Virginia.
The issues are whether Respondent violated the standard and, if so, the
appropriate civil penalty to be assessed, based upon the six criteria in
Section llO(i) of the Act. At the hearing, Homer s. Grose, the MSHA
inspector who issued the citation, testified for Petitioner and Paul E.
Given, Respondent's safety director, testified for Respondent.
The parties stipulated, and I find, that:
1. I have jurisdiction over this p.roceeding, and Respondent is within
the jurisdiction of the Act.
2. Respondent is a large operator and payment of an appropriate civil
penalty will not affect its ability to continue in business.
3.
notice.

Respondent was duly served with the citation and its termination

4. Respondent exercised ordinary good faith in abating the conditions
giving rise to the citation.

96

5. In the 24-month period immediately preceding the issuance of the
citation, 452 alleged violations were assessed against Respondent, covering
a total of 242 inspection days. This information was derived from an MSHA
computer history printout.
6. Between 30 and 40 of these alleged violations involved 30 CFR
75.1403-6(b)(3), the standard involved in this case. By entering into this
stipulation, Respondent does not concede that these citations actually
represent violations of the cited standard.
7. All exhibits are authentic and may be admitted into evidence on
that basis, subject to possible objections as to their relevancy.
Mr. Grose was the only witness present at the time of the alleged violation. His testimony was uncontradicted. He stated that at approximately
8 a.m. on January 18, 1979, he observed a self-propelled, track-mounted
personnel carrier emerge from Respondent's No. lA Mine and discharge miners
who had worked the night shift. The vehicle, which was capable of carrying
approximately eight men, was equipped with devices which apply sand onto
the tracks in front of the vehicle's metal wheels. The purpose of the sand
is to increase traction and allow for better control of the vehicle. There
is one sand tube in front of each of the four wheels.
At about 8 a.m., Mr. Grose observed Respondent's representative, Robert
Neal, check the personnel carrier. After Mr. Neal had completed his inspection, Mr. Grose inspected the carrier. He found that two of the four sand
hoses were clogged and therefore inoperative. Based upon this, he issued
the citation. The hoses were cleared within 15 minutes of the issuance of
the citation.
The sand hoses are approximately an inch and a half in diameter and can
become clogged if the sand becomes damp or moist. They can be unclogged by
inserting a rod or similar object into them and removing the damp sand. On
January 18, 1979, there was no moisture on the mine's surface but there was
dampness in the low-lying areas within the mine. Mr. Grose stated, and I
find, that the mine contained steep grades and narrow areas which had little
clearance and no shelter holes. Therefore, if a personnel carrier lost
control, it could cause a dangerous accident.
The Secretary of Labor issued a safeguard notice with regard to this
type of violation to Respondent in January 1978. During January 1979,
there were nine other citations issued to Respondent for violations of this
standard. Mr. Grose testified that violations of 30 CFR 75.1403-6(b)(3)
occurred quite frequently at this mine.
Mr. Given did not know the facts surrounding the alleged violation. He
was not present at the site on January 18, 1979, but he testified that the
mine had a policy of attempting to comply with all personnel carrier standards and had issued instructions and posted notices to encourage compliance. He stated that there had never been an accident in this mine or any
other Sewell mine as a result of a violation of this standard.

97

The parties waived submission of briefs. Based upon the evidence, I
make the following conclusions of law and order:
Occurrence of Violation: The evidence is undisputed that on the date,
time, and at the place alleged in the citation, the vehicle in question had
only two of its four sanding devices in operating condition. The vehicle
transported more than five men. Therefore, Respondent.violated the standard
at 30 CFR 75.1403-6(b)(3).
Gravity of Violation: I agree with Petitioner that this is a serious
violation. Despite Respondent's arguments that the vehicle was equipped
with brakes to impede its descent, the sanding devices were designed to prevent the vehicle from losing control and to increase traction between the
vehicle's wheels and the tracks. I find that the devices were necessary for
the vehicle's safe operation. At the time that the citation was issued, the
vehicle in question was about to carry seven men down into the mine. The
grades in the No. lA Mine were fairly steep and areas near the vehicle's
track had narrow clearances and no shelter holes. Therefore, if the vehicle
lost control it is quite likely that serious injury or death would result.
Negligence: The parties stipulated that the operator was cited for
between 30 and 40 violations of this safety standard during the 24-month
period preceding this incident. During January 1979, the operator was served
with nine citations for violation of this standard. The inspection of the
vehicle made by Mr. Neal was inadequate, as he did not notice the inoperative
sanding devices. This indicates negligence on the part of the Respondent.
Good Faith Efforts to Achieve Rapid Compliance: As stipulated, the
operator acted in good faith in correcting this violation. The evidence
showed that this was done within about 15 minutes.
Size of Operator's Business and Effect of Penalty on Operator's
Ability to Continue in Business: The parties stipulated, and I find, that
Respondent is a large operator and that the proposed penalty would have no
effect upon .its ability to continue in business.
History of Previous Violations: There were 452 previous violations by
the operator during the 24-month period preceding this incident, covering
242 man-days of inspections.
Assessment of Penalty: The Assessment Office recommended a penalty of
$295. Counsel for the Secretary contended that that amount is too small in
view of the gravity of the violation and Respondent's high degree of negligence. I agree. I am impressed with the large number of violations of this
safety standard committed by this operator. I think the recommended penalty
is insufficient to motivate the operator to comply with this standard. A
larger penalty is required to impress upon·Resp~ndent the seriousness of
this type of violation and encourage future voluntary compliance. Therefore,
I assess a penalty of $1,000.

98

ORDER
Respondent is ORDERED to pay $1,000 in penalties within 30 days of the
date of this Order.

Edwin s. Bernstein
Administrat.ive Law Judge
Distribution:
Barbara Krause Kaufmann and Sidney Salkin, Attorneys, Office of the
Solicitor, U.S. Department of Labor, Room 14480, Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Gary W. Callahan, Esq., Sewell Coal Company, Lebanon, VA 24266
(Certified Mail)

99

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

JAN 2 8 1980
SECRETARY OF LABOR,
MINE SAFETY ~D HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. PIKE 79-7-P
A.C. No. 15-09867-03001

Petitioner

v.
Mine No. l
TRIPLE S COAL COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket No. PIKE 79-24-P
A.C. No. 15-03785-03001
Petitioner

Mine No. l

v.
BELINDA COAL COMPANY,
Respondent
DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Gary Stiltner, Ash Camp, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to written notice dated April 12, 1979, as amended May 7, 1979,
a hearing in the above-entitled consolidated proceeding was held on May 17,
1979, in Pikeville, Kentucky, under section 105(d) of the Federal Mine Safety
and Health Act of 1977.
MSHA's Petition for Assessment of Civil Penalty in Docket No.
PIKE 79~7-P was filed on October 16, 1978, seeking to have a civil penalty
assessed for an alleged violation of 30 CFR 75.1204 by Triple S Coal Company.
The Petition for Assessment of Civil Penalty in Docket No. PIKE 79-24-P was
filed on November 15, 1978, seeking to have a civil penalty assessed for an
alleged violation of 30 CFR 75.1204 by Belinda Coal Company.
Issues
The issues raised by the Petitions for Assessment of Civil Penalty are
whether violations of the mandatory health and safety standards occurred and,

100

if so, what monetary penalties should be assessed, based on the six criteria
set forth in section llO(i) of the Act. Respondents' sole defense in their
answers to the Petitions for Assessment of Civil Penalty and in the testimony
of their witness at the hearing is that no violations of section 75.1204
occurred. Therefore, the first question to be determined in this proceeding
is that of whether either respondent violated section 75.1204.
Docket No. PIKE 79-7-P
Notice No. 2 TLA (7-3) 12/13/77 § 75.1204 (Exhibit 5)
Findings. Section 75.1204, to the extent here pertinent, provides that
when an operator permanently abandons a coal mine, he shall within 60 days
after such abandonment file with the Secretary a copy of the mine map revised
and supplemented to the date of abandonment or closure. Respondent Triple
S Coal Company abandoned its No. 1 Mine in March or May 1977 and, within
2 weeks after such abandonment, one of its copartners personally took copies
of the final map to MSHA's Pikeville Office and gave them to an inspector
named Doug Fleming who gave the copartner no receipt showing that the final
map had been submitted (Tr. 41).
When Triple S Coal Company received Notice No. 2 TLA alleging that the
final map had not been submitted, the copartner who had delivered the map to
Mr. Fleming called MSHA's Pikeville Office. Someone in that office stated
that there had been some confusion regarding the map and that the matter would
be taken care of. The copartner subsequently examined his old records and
found two additional copies of the final mine map which were sent to MSHA and
received by the Pikeville Office on January 20, 1978 (Tr. 33-34).
MSHA presented two witnesses in support of Notice No. 2 TLA. The first
witness was Mr. Thomas L. Adams who wrote the notice. Notice No. 2 TLA
alleges that respondent did not submit a final map of its No. 1 Mine although
the mine had been abandoned for more than 90 days. Mr. Adams testified that
he issued Notice No. 2 TLA on the basis of information supplied to him by
MSHA's Ventilation Department at the Pikeville Office, but Mr. Adams did not
know the date on whch the No. 1 Mine had been abandon,ed. Mr. Adams visited
the site of the No. 1 Mine on or about December 1, 1977, and again about a
week later. Since he found nq one on the mine property on either occasion,
he concluded that the mine was abandoned at that time, but he did not know
how long the mine had been abandoned before he issued Notice No. 2 TLA
(Tr. 30-31).
MSHA's other witness was Mr. Elmer Fuller who wrote on February 7, 1978,
a notice of termination of Noti~e No. 2 TLA after he had been given a copy
of the final map showing that it had been received on January 20, 1978
(Tr. 34-36). Mr. Fleming, to whom respondent's copartner gave the final
maps, was unable to attend the hearing to state whether or not he agreed
that respondent's copartner had submitted the final map within 2 weeks after
the mine was closed (Tr. 11).

101

Conclusions. In my notice of hearing issued in this proceeding, I
referred to the fact that respondent's defense was that it had submitted the
final maps as required by section 75.1204. My notice then stated that MSHA
should try to present as a witness the person to whom respondent allegedly
gave the maps so that he could state whether or not he agreed or disagreed
with respondent's claim that the final map had been submitted. MSHA did not
have that person present at the hearing and gave no reason for his unavailability as a witness other than indicating through Mr. Adams' testimony that
Mr. Fleming "***was unable to attend this hearing this morning" (Tr. 11).
Since respondent's witness testified under oath that he submitted the
final map within 2 weeks after Triple S Coal Company's No. 1 Mine was
abandoned, his testimony is entitled to more weight than MSHA's testimony
because neither of MSHA's witnesses had personally examined MSHA's files in
order to determine for certain that no final map had been submitted (Tr.
31; 36). They based their allegations that the final map had not been submitted solely on a list of companies which had been given to them by their
supervisor. That list included respondent's No. 1 Mine, but neither of
MSHA's witnesses was able to rebut with any personal knowledge respondent's
claim that the final map had been submitted (Tr. 31-38). MSHA's Pikeville
Office no doubt processes a large number of filings. Even the most competent
employees occasionally make mistakes. In the absence of some evidence showing that a mistake was not made in processing respondent's maps, I believe
that respondent's claim that it submitted the required map should be upheld.
Inasmuch as MSHA's evidence fails to show that respondent's copartner
incorrectly alleged that the final maps were submitted within 60 days after
respondent's No. 1 Mine was abandoned, I find that no violation of section
75.1204 was proven as alleged by Notice No. 2 TLA dated December 13, 1977.
Therefore, MSHA's Petition for Assessment of Civil Penalty filed in Docket
No. PIKE 79-7-P will hereinafter be dismissed.
Docket No. PIKE 79-24-P
Notice No. 1 BHT (8-1) 1/30/78 § 75.1204 (Exhibit 2)
Findings. Notice No. 1 BHT alleged that respondent had violated section
75.1204 by failing to submit a final map for its No. 1 Mine which had been
abandoned since June 23, 1975. Belinda Coal Company's witness agreed that
the No. 1 Mine had been abandoned on June 23, 1975, but he insisted that he
had personally, within 1 or 2 days after abandonment, submitted to Mr. Rick
Keene in MSHA's Pikeville Office copies of the final map (Tr. 20; 27).
Respondent's witness stated that he lives 30 miles from Pikeville and that
it was his practice to come to Pikeville and fill out abandonment papers for
both Federal and State agencies because "* * * I think practically everyone
knows you have to have final maps before you can abandon mines" (Tr. 20).
MSHA's first witness in support of Notice No. 1 BHT was Mr. Billy H.
Tackett. He stated that he had issued the notice after his supervisor gave
him a "big list" of mines which had been abandoned without submission of
final maps. Mr. Tackett did not check any files to determine whether Belinda

102

Coal Company had submitted a final map (Tr. 8). Another of MSHA's witnesses,
Mr. Thomas Adams, testified that a final map was even~ually submitted for
Belinda's No. 1 Mine but that he did not know the date on which such a map
was submitted (Tr. 13).
Conclusions. Apparently Mr. Adams was confused about the submission of
a final map by Belinda in response to Notice No. 1 BHT because Belinda's
witness stated that he never did submit a final map in response to Notice
No. 1 BHT because he knew that he had already done so and that he had
declined to do so after receiving Notice No. 1 BHT (Tr. 45). Nevertheless,
Belinda's witness agreed at the hearing that he would submit a final map for
a second time in order that MSHA's records could be completed with respect to
Belinda's No. 1 Mine (Tr. 45).
MSHA's evidence in support of Notice No. 1 BHT was inadequate. Although
MSHA did know when Belinda's No. 1 Mine had been abandoned, MSHA was
unable to present as a witness Mr. Rick Keene or anyone else who had personal
knowledge about Belinda's claim that copies of the final map had been submitted to Mr. Rick Keene 1/ (Tr. 10; 32; 36). MSHA's witnesses had not
examined any files pertaining to Belinda Coal Company and could not personally state what specific information had been used to prepare the "big list"
alleging that Belinda Coal Company had failed to submit a final map (Tr.
5-13).

Belinda's witness testified under oath that he had submitted the final
map within 1 or 2 days after the No. 1 Mine had been abandoned and that he
had done so because both MSHA and the State of Kentucky require that a final
map be submitted at the time a mine is abandoned. The witness also recalled
specifically that he had handed the final map to Mr. Rick Keene who then
worked in the Ventilation Department in MSHA's Pikeville office (Tr. 19).
I cannot find that the testimony of MSHA's witnesses who possessed only
a "big list" of abandoned mines prepared by other personnel in the Pikeville
Office can be used to prove a violation of section 75.1204 when the company
charged with such violation introduces the testimony of a credible witness
to the effect that the final map was submitted within 60 days after abandonment as required by section 75.1204. I find that MSHA failed to prove that
the violation of section 75.1204 alleged in Notice No. 1 BHT occurred.
Therefore, I shall hereinafter dismiss MSHA's Petition for Assessment of
Civil Penalty filed in Docket No. PIKE 79-24-P.
1/ Belinda's witness claimed that he had given the map to Mr. Keene in
this instance, instead of to Mr. Fleming as was the case with respect to
Triple S Coal Company, supra. Moreover, there is doubt in the record as to
when Mr. Keene actually stopped working for MSHA because one witness testified that he left in late August or early September 1976, while another of
MSHA's witnesses stated that Mr. Keene left on April 8, 1976 (Tr. 32; 36).
Regardless of whether Mr. Keene left in April or September 1976, he would
have been working in the Pikeville Office in 1975 at the time Belinda's
witness claimed he gave the final map to Mr. Keene.

103

Ultimate Findings and Conclusions
For the reasons hereinbefore given, MSHA failed to prove that the violation of section 75.1204 alleged in Notice No. 2 TLA (7-3) dated
December 13, 1977, and the violation of section 75.1204 alleged in Notice
No. 1 BHT (8-1) dated January 30, 1978, occurred. Since no violations of
the mandatory safety standards were proven, it is unnecessary for me to
consider the six criteria under which civil penalties are assessed if violations are found to have occurred.
WHEREFORE, it is ordered:
MSHA' s· Petitions for· Assessment of Civil Penalty filed in Docket Nos.
PIKE 79-7-P and PIKE 79-24-P are dismissed for failure of MSHA to prove that
the violations of section 75.1204 alleged therein actually occurred.

~c.o.8~

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

~

Distribution:
John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Triple S Coal Company and Belinda Coal Company, Attention:
Stiltner, Copartner, P.O. Box 196, Ash Camp, KY 41512
(Certified Mail)

Gary

G and R Coal Company, Attention: Gary Stiltner, Copartner, Route 3,
Box 10, Cedar Bluffs, VA.25609 (Certified Mail)

104

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

JAN 2 8 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket Nos.

Assessment Control Nos.

Petitioner
v.

KENT 79-181
15-11702-03001
Pyro Central Shop

PYRO MINING COMPANY,
Respondent

KENT 79-182
Wheatcroft Mine

15-10815-03010

KENT 79-183
15-02131-03020
Pyro Mine No. 2
KENT 79-184
15-10353-03019V
KENT 79-185
15-10353-03020
KENT 79-186
15-10353-03021
Pyro Mine No. 6
KENT 79-187
15-10339-03017
Pyro Mine No. 11
DECISION APPROVING SETTLEMENT
Counsel for the Secretary of Labor filed on December 31, 1979, in the
above-entitled proceeding a motion for approval of settlement. Under the
settlement agreement, respondent would pay penalties totaling $8,378 instead
of penalties totaling $9,505 as proposed by the Assessment Office. Respondent's motion was accompanied by a considerable number of documents to
support the settlement agreement. ·
The motion for approval of settlement states that the parties considered
the six criteria set forth in section llO(i) of the Federal Mine Safety and
Health Act of 1977. Three of those criteria may be given a generalized
evaluation which will apply to all of the 40 violations alleged in MSHA's
seven Petitions for Assessment of Civil Penalty, while the remaining three
criteria will be considered on an individual basis when each of the alleged
violations is hereinafter reviewed. The three criteria which may be given
a general evaluation are the size of respondent's business, the question of
whether payment of penalties would cause respondent to discontinue in
business, and respondent's history of previous violations.

105

The orders of assessment prepared by the Assessment Off ice show that
respondent's mines produce a total of 1,634,680 tons of .coal per year,
whereas an income statement submitted with the motion for approval of
settlement shows that respondent sold a total of 1,228,353 tons of coal
during the 12 months ending July 31, 1979. Since respondent's income statement provides data which are more current than the production figures in the
assessment orders, I shall use the income statement for the purpose of
determining the size of respondent's business. Assuming that respondent
operated its mines for 250 days during the 12 months covered by its income
statement, the average daily production would have been 4,912 tons per day.
On the basis of those figures, I find that respondent is a large operator
and that penalties in an upper range of magnitude should be assessed to the
extent that they are determined under the criterion of the size of respondent's business.
The financial data submitted with the motion for approval of settlement
show that respondent lost about $14.6 million during the 12 months ending
July 31, 1979, of which an amount of at least $7 million is attributable to
its coal operations. Respondent's quarterly report submitted to the
Securities and Exchange Commission states that respondent is in violation
of the debt and equity covenants under its financing agreements with both of
its lenders, but that respondent hopes to avoid defaulting under its agreement by selling its Corinne gas field in Mississippi for $25,800,000 of which
amount a sum of $20,000,000 is to be paid in cash. The financial data also
show that respondent's net losses made it unnecessary for respondent to provide for payment of any Federal income taxes for the periods ending
January 31, 1978, and January 31, 1979.
On the other hand, the motion for approval of settlement (p. 5) states
that "[w]hile the agreed upon penalty will affect respondent's financial
posture it will have no effect on respondent's ability to remain in business." Respondent's answers to MSHA's Petitions for Assessment of Civil
Penalty indicate that respondent does not agree with the above-quoted
statement in the motion for approval of settlement because respondent's
answers claim that "civil penaties will substantially affect our ability to
stay in business." Respondent's answers further allege that inflation,
higher interest rates, and EPA restrictions, which required respondent to
construct expensive cleaning plants which wash away 30 percent of the coal
which respondent used to sell, all contribute to respondent's inability to
make a profit on its coal operations.
It would appear that the financial data submitted by respondent would
support a finding that payment of penalties might cause respondent to discontinue in business if it were not for the fact that one of the few
optimistic statements in respondent's quarterly report to the SEC states
as follows (p. 9):
Coal revenues increased significantly principally due to
a 31% increase in tons sold by the Registrant's Kentucky
operation and the fact that a substantial portion of the sales

106

were under higher-priced contracts. In addition, the
Registrant's Alabama operation was shut down during a significant portion of the three months ended October 31, 1978 due
to the erection of a large dragline on the property.
After considering all of the financial data submitted by respondent,
I conclude that the payment of penalties will not cause respondent to
discontinue in business.
The assessment orders in this proceeding assign anywhere from 0 points
(Docket No. KENT 79-181) to 13 points (Docket No. KENT 79-187) for assessment
of penalties under the criterion of history of previous violations. The
data submitted in support of the motion for approval of settlement do not
provide information which would permit me to find that the Assessment Office
has attributed more penalty points to the criterion of history of previous
violations than is warranted. In the absence of any facts to show that the
Assessment Office has erred in its evaluation of the criterion of history
of previous violations, I find that the Assessment Office has made reasonable
conclusions with respect to the criterion of history of previous violations
and no further effort to analyze the Assessment Office's determinations as to
that criterion will be made.
The remaining three criteria, namely, respondent's negligence, if any,
the gravity of the alleged violations, and respondent's good faith effort to
achieve rapid compliance will hereinafter be individually considered in my
review of the specific violations alleged in each docket.
Docket No. KENT 79-181
Citation No. 795149 alleged that respondent had violated section
77.1607(0) because a truck used during daylight hours was not provided with
operative headlights. The Assessment Office considered that the violation
involved no negligence, that it was moderately serious, and that there was
a normal effort to achieve compliance. The Assessment Office proposed a
penalty of $14 and respondent has agreed to pay the full proposed penalty.
I find that the Assessment Office derived an appropriate penalty and that
respondent's agreement to pay the full amount should be approved.
Citation No. 795152 alleged that respondent had violated section 77.410
because a truck had not been equipped with an adequate backup alarm. The
Assessment Office considered that the violation involved ordinary negligence,
that it was serious, and that respondent demonstrated normal good faith in
achieving compliance. The Assessment Office proposed a penalty of $60.
Respondent has agreed to pay the full proposed penalty. I find that the
Assessment Office properly arrived at an appropriate penalty and that respondent's agreement to pay the full amount should be approved.
Docket No. KENT 79-182
Citation No. 795701 alleged that respondent had violated section
75.1100-l(e) because the fire extinguisher on ~battery-powered locomotive

107

did not contain expellant or powder. The Assessment Office considered that
the violation involved ordinary negligence, that it was serious, and that
respondent demonstrated a better than average good faith effort to achieve
compliance. The Assessment Office proposed a penalty of $90 and respondent
has agreed to pay a penalty of $65. The operator's evaluation sheet shows
that the operator believed the alleged violation to be nonserious because
the operator did not think that the violation would result in injury or that
the conditions surrounding the violation would be likely to cause a fire.
If a hearing had been held, questions would have been raised as to the
degree of the operator's negligence and the gravity of the violation. In
such circumstances, I find that respondent's agreement to pay a penalty of
$65 is reasonable and should be approved.
Citation No. 795702 alleged that respondent had violated section
75.1100-Z(d) by failing to equip a battery-powered personnel carrier with a
fire extinguisher. The Assessment Office found that the violation involved
ordinary negligence, that it was serious, and that respondent demonstrated
a better than average effort to achieve compliance. The Assessment Office
proposed a penalty of $98 and respondent has agreed to pay a penalty of $70.
Respondent's evaluation sheet claims that respondent was nonnegligent because
an unauthorized person had removed the fire extinguisher. Respondent did not
believe that the conditions existing at the time the citation was written
would produce a fire and doubted that any injury would occur as a result of
the absence of the fire extinguisher. If a hearing had been held, questions
would have been raised as to the degree of respondent's negligence and the
gravity of the alleged violation. Therefore, respondent's agreement to pay
a reduced penalty of $70 is· approved.
Citation No. 795703 alleged that respondent had violated section
75.601-1 because the circuit breaker for the trailing cable to a roof-bolting
machine was set 400 amps higher than it should have been. The Assessment
Office considered the violation to involve ordinary negligence, that it was
serious, and that respondent demonstrated a better than average effort to
achieve compliance. The Assessment Office proposed a penalty of $98 and
respondent has agreed to pay a penalty of $70. Respondent alleges that no
overcurrent was present. In such circumstances, a question exists as to
whether the Assessment Office may have assigned an excessive number of points
to the criterion of gravity •. I find that respondent's agreement to pay a
penalty of $70 should be approved.
Citation No. 795704 alleged that respondent had violated section
75.1722(a) because the tramming chain and tramming sprockets on the feeder
were not guarded. The Assessment Office believed that the violation involved
ordinary negligence, that it was serious, and that respondent demonstrated a
better than average effort to achieve compliance. Respondent has agreed to
pay a penalty of $100, whereas the Assessment Office proposed a penalty of
$130. There are remarks on the inspector's statement indicating that the
feeder only moves when the conveyor belt is being extended and that no more
than one person would be likely to be injured by an unguarded tramming chain.
I find that a question exists as to whether the Assessment Off ice assigned

108

an excessive number of points under the criteria of negligence and gravity
and that respondent's agreement to pay a reduced penalty of $100 should be
approved.
Citation No. 795705 alleged that respondent had violated section 75.601
because the circuit breaker for the trailing cable of an offside shuttJe
car had been set 400 amps higher than it should have been. The Assessment
Office considered that the violation involved ordinary negligence, that it
was serious, and that respondent had demonstrated a normal effort to achieve
compliance. The Assessment Office proposed a penalty of $114 and respondent
has agreed to pay a penalty of $80. Respondent claims that no overcurrent
was present. That allegation raises an issue as to whether the violation
was as serious as the Assessment Office believed. I find that respondent's
agreement to pay a reduced penalty of $80 should be approved.
Citation No. 795706 alleged that respondent had violated section 75.523
because the deenergization device, or panic bar, on a shuttle car was
inoperative when tested. The Assessment Office believed that the violation
involved ordinary negligence, that it was serious, and that respondent had
demonstrated a better than average effort to achieve compliance. The
Assessment Office proposed a penalty of $130 and respondent has agreed to
pay a penalty of $100. Respondent claims that injury resulting from the
violation was improbable and that few miners would be exposed to danger by
the violation. Additionally, it should be noted that respondent had provided
a panic bar, but it had become inoperative and there is nothing in the file
to show how long the bar had been in an inoperative condition. In such circumstances, the violation may not have involved as much negligence or gravity
as the Assessment Offi~e assigned to those criteria. Therefore, respondent's
agreement to pay a reduced penalty of $100 should be approved.
Citation No. 795712 alleged that respondent had violated section 75.904
because the 400-amp circuit breaker for the conveyor belt drive was not
marked for identification. The Assessment Office considered that the violation involved ordinary negligence, that it was very serious, and that respondent had demonstrated a better than average effort to achieve compliance.
The Assessment Office proposed a penalty of $150 and respondent has agreed
to pay $115. Remarks on the inspector's statement allege that no other plug
the size of the one for the conveyor belt was being used. Also· the main plug
had been marked, but the suboutlet had not been marked. Those factors would
reduce the likelihood that the circuit breaker for the belt drive would be
mistaken for the circuit breaker for a different piece of equipment. That
consideration indicates that the Assessment Office may have assigned an
excessive number of points under the criteria of negligence and gravity.
Therefore, I find that respondent's agreement to pay a reduced penalty of
$115 should be approved.
Citation No. 795713 alleged that respondent had violated section 75.601
because the circuit breaker for the battery charger was set 400 amps above
the allowable setting. The Assessment Office believed that the violation
involved ordanary negligence, that it was serious, and that respondent had

109

demonstrated a better than average effort to achieve compliance. The·
Assessment Office proposed a penalty of $98 and respondent has agreed to
pay $70. Respondent claims that conditions were unfavorable for occurrence
of any injuries and that no injury caused by the violation could be expected.
Therefore, the Assessment Office may have assigned more points under the
criteria of both negligence and gravity than the facts warranted and respondent's agreement to pay a reduced penalty of $70 should be approved.
Citation No. 795714 alleged that respondent had violated section 75.516
because the power cables for the battery charger were not supported on
insulators and were permitted to come into contact with combustible materials
at several locations. The Assessment Office considered that the violation
involved ordinary negligence, that it was serious, and that respondent had
demonstrated a better than average effort to achieve compliance. The
Assessment Office proposed a penalty of $106 and respondent has agreed to
pay a penalty of $75. Respondent claims that the power cable was insulated.
That fact indicates that the likelihood of fire was improbable and that the
Assessment Office may have rated the violation as involving more negligence
and gravity than the facts warrant. Therefore, respondent's offer to pay a
reduced penalty of $75 should be approved.
Citation No. 795715 alleged that respondent had violated section
75.1722(b) because the tail pulley roller on a conveyor belt was not adequately guarded. The Assessment Office considered that the violation
involved ordinary negligence, that it was serious, and that respondent
demonstrated a normal good faith effort to achieve compliance. The Assessment Office proposed a penalty of $150 and respondent has agreed to pay a
penalty of $115. It should be noted that the citation refers to failure
to guard "adequately" rather than a failure to provide any guard at all.
If a hearing had been held, a question of fact would have arisen as to
whether respondent's guard was adequate. In such circumstances, it appears
that the Assessment Office may have assigned a larger number of points under
the criterion of gravity than was warranted. Therefore, respondent's agreement to pay a reduced penalty of $115 should be approved.
Citation No. 795716 alleged that respondent had violated section 75.515
because the trailing cable for the coal drill was.not equipped with a suitable device to prevent strain.from being exerted on the electrical connections within the drill. The Asses8ment Office considered that the violation
involved ordinary negligence, that it was serious, and that respondent demon~
strated a normal effort to achieve compliance. The Assessment Office proposed a penalty of $150 and respondent has agreed to pay a penalty of $115.
The conditions set forth in the citation are ambiguous. The inspector
alleges that respondent failed to provide a "suitable" fitting, but he fails
to say that no fitting at all was provided. Additionally, there is nothing
to show that there was any sign that the cable was worn or would have exposed
anyone to an electrical shock at the time the citation was written. There
is nothing in the inspector's statement which would show that the violation
was as serious as the Assessment Office considered it to be. Therefore,
respondent's offer to pay a penalty of $115 should be approved.

110

Citation No~ 795717 alleged that respondent had violated section
75 .172.Z(b) because the pulley roller to the tail piece had not been adequately guarded. The Assessment Office considered that this violation
involved ordinary negligence, that it was serious, and that respondent
had demonstrated a normal effort to achieve compliance. The Assessment
Office proposed a penalty of $150 and respondent has agreed to pay a
penalty of $115. Here again, the citation shows that respondent had provided a guard, but that it was not as "adequate" as the inspector believed
it should have been. The fact that respondent had provided a guard shows
that the Assessment Office may have assigned an undue number of points
under the criterion of negligence and justifies acceptance of respondent's
offer to pay a reduced penalty of $115.
Citation No. 795718 alleged that respondent had violated section 75.400
because loose coal and coal dust had been permitted to accumulate on and
around the two 40-horsepower motors on the feeder. The Assessment Office
considered that the violation involved ordinary negligence, that it was
serious, and that respondent had demonstrated a normal good faith effort to
achieve compliance. The Assessment Office proposed a penalty of $122 and
respondent has agreed to pay a penalty of $95. The Assessment Office reduced
the proposed penalties with respect to several of the citations involved in
this docket when respondent corrected the alleged violation within a period
of 30 minutes. The alleged violation in this instance was corrected within
a period of only 30 minutes, but no credit was given for that rapid effort
to achieve compliance in this instance. Giving proper credit to respondent's
effort to achieve rapid compliance justifies acceptance of respondent's
offer to pay a reduced penalty of $95.
Docket No. KENT 79-183
Citation No. 794820 alleged that respondent had violated section 75.606
because there was evidence that the trailing cable to the cutting machine
had been run over by rubber-tired equipment. The Assessment Office considered that the violation involved ordinary negligence, that it was serious,
and that respondent had demonstrated a better than average effort to achieve
compliance. The Assessment Office proposed a penalty of $106 and respondent
has agreed to pay a penalty of $79. The inspector's statement indicates that
respondent took extraordinary steps· to gain compliance in this instance.
Also the inspector's termination of the citation states that there was no
short circuit in the trailing cable and that no damage had been done to the
trailing cable by the equipment which appears to have run over it. In such
circumstances, the Assessment Office may have assigned more points under the
criterion of gravity than was warranted. Therefore, respondent's offer to
pay a penalty of $79 should be approved.
Docket No. KENT 79-184
Order No. 795432 was issued under the unwarrantable failure provisions
of the Act and alleged that respondent had violated section 75.200 by failing
to install bolts on 5-foot centers in compliance with its roof-control plan.
The roof bolts were alleged to be up to 6-1/2 feet apart in the Nos. 1

111

through 6 entries and 9 feet away from the ribs. Over 98 roof bolts had to
be installed to restore the area to the requirements of the roof-control
plan. The Assessment Office waived the point system normally used in determining penalties and made findings of fact as to the six criteria to support
its proposed penalty of $5,000 which respondent has agreed to pay in full.
The inspector's statement alleges that two roof falls had previously occurred
in the section here involved. It appears that enough negligence and gravity
were associated with the alleged violation to warrant imposition of a penalty of $5,000. Respondent's agreement to pay the full amount should be
approved.
Docket No. KENT 79-185
Citation No. 9948483 alleged that respondent had violated section 70.250
by failing to submit a valid respirable dust sample or give a reason for not
sampling for one employee. The Assessment Office considered that the violation involved ordinary negligence, that it was nonserious, and that respondent demonstrated a normal effort to achieve compliance. The Assessment
Office proposed a penalty of $84 and respondent has agreed to pay $60.
Section 70.250 requires that the atmosphere of each miner on a working section be sampled at intervals of 120 days and that the atmosphere of other
miners be sampled at intervals of 180 days. The samples required under section 70.250 are unrelated to the sampling of the high-risk employee whose
samples are used to determine if an operator's mine is in compliance with
the respirable-dust program. While there is generally some negligence
associated with the failure to submit the 120-day and 180-day samples, a
penalty of $60 is a sufficient amount unless there is evidence to show that
an operator has been grossly negligent in continuously violating section
70.250. Since there is no evidence in this proceeding to show that respondent frequently violated section 70.250, I believe that respondent's agreement to pay $60 should be approved.
Citation No. 795155 alleged that respondent had violated section 75.1714
because the operator of a roof-bolting machine was not provided with a selfrescue device. The Assessment Office considered that the violation involved
no negligence, that it was serious, and that respondent demonstrated an
average good faith effort to achieve compliance. The Assessment Office proposed a penalty of $84 and respondent has agreed to pay $60. The inspector's
statement does not rate the seriousness of the violation. There must have
been extenuating facts associated with the alleged violation or the inspector
would not have considered the operator to be nonnegligent. In such circumstances, I believe that respondent's agreement to pay a penalty of $60 should
be approved.
Docket No. KENT 79-186
Citation No. 795340 alleged that respondent had violated section 75.603
because a temporary splice in the trailing cable for the coal drill had been
made by tying the conductors in square knots. The Assessment Office considered that the violation involved ordinary negligence, that it was serious,

112

and that respondent demonstrated a better than average effort to achieve
compliance. The Assessment Office proposed a penalty of $122 and respondent
has agreed to pay $95. Respondent's evaluation sheet claims that the splice·
was well insulated and that no one would have been injured because of the
use of square knots in the temporary splice. Moreover, respondent states
that production was immediately stopped and the splice was remade in the
correct manner. In such circumstances, the Assessment Office may have
assigned more penalty points to the criterion of gravity than were warranted.
Therefore, respondent's agreement to pay a penalty of $95 should be approved•
Citation No. 795521 alleged that respondent had violated section 75.605
because respondent had failed to clamp the trailing cable of the coal drill
to the cable reel so as to prevent strain from being placed on the electrical
connections. The Assessment Office considered that the violation involved
ordinary negligence, that it was serious, and that respondent had demonstrated a normal effort to achieve compliance. The Assessment Office proposed a penalty of $122 and respondent has agreed to pay $95. The Assessment
Office may have assigned excessive penalty points because the operator's
evaluation sheet shows that the operator felt that it was improbable that an
injury would occur as a result of the alleged violation. The operator
believed the violation to be nonserious because the grounding mechanism was
in good condition as well as the circuit breaker. Moreover, respondent
alleges that it had made a better than average effort to achieve rapid compliance, but the Assessment Office considered that there had been only a
normal effort to achieve compliance. In such circumstances, respondent's
agreement to pay $95 should be approved.
Citation No. 795522 alleged that respondent had violated section
75.1107-16(b) because a loading machine's fire-suppression device had been
rendered inoperative by a severed hose. The Assessment Office considered
that the violation involved ordinary negligence, that it was serious, and
that the operator had demonstrated an outstanding effort to achieve compliance. The Assessment Office proposed a penalty of $84 and respondent has
agreed to pay $60. The operator's evaluation sheet claims that the operator
was nonnegligent and alleges that any injury as a result of the violation
was improbable since the loading machine was in a clean condition and there
was good ventilation in the mine. In such circumstances, the Assessment
Office may have assigned an excessive number of points under the criteria of
negligence and gravity. Therefore, respondent's agreement to pay a penalty
of $60 should be approved.
Citation No. 795523 alleges that respondent had violated section 75.603
because a temporary splice had been made in the trailing cable on a roofbol ting machine and the splice was close to the reel. The Assessment Office
considered that the violation involved ordinary negligence, that it was
serious, and that respondent had demonstrated an outstanding effort to
achieve rapid compliance. Respondent's evaluaiion sheet claims that it was
nonnegligent because the miners had been instructed in proper splicing procedures and alleges that the violation was nonserious because the splice

113

had been well insulated. In such circumstances, respondent's agreement to
pay a penalty of $95, instead of the penalty of $122 proposed by the Assessment Office, should be approved.
Citation No. 795524 alleged that respondent had violated section 75.1722
because 5 feet of the fencing used to guard the belt head were missing which
would permit a person to come in contact with moving head rollers. The
Assessment Office considered that the violation ·involved ordinary negligence,
that it was serious, and that respondent had demonstrated a better than
average effort to achieve rapid compliance. The Assessment Office proposed
a penalty of $114 and respondent has agreed to pay $80. The Assessment
Office may have assigned an excessive number of points under the criteria of
negligence and gravity because respondent's evaluation sheet claims that
respondent was nonnegligent and that the likelihood of injury was improbable.
In such circumstances, respondent's offer to pay a penalty of $80 should be
approved.
Citation No. 795525 alleged that respondent had violated section 75.202
because overhanging ribs ranging in size from 12 to 28 inches were observed
in four entries. The Assessment Office considered that the violation
involved ordinary negligence, that it was serious, and that respondent had
demonstrated an outstanding effort to achieve rapid compliance. The Assessment Office proposed a penalty of $106 and respondent has agreed to pay
$75. The respondent's evaluation sheet claims that the violation involved
no negligence and alleges that the overhanging ribs were not large enough to
have been likely to injure anyone. It appears that the Assessment Office
may have assigned an excessive number of points under the criteria of
negligence and gravity. Therefore, respondent's agreement to pay a penalty
of $75 should be approved.
Citation No. 795526 alleged that respondent had violated section 75.503
because the loading.machine had two openings which exceeded the width permitted by the permissibility standards. The Assessment Office considered
that the violation involved ordinary negligence, that it was serious, and
that the operator demonstrated a better than average effort to achieve rapid
compliance. The Assessment Office proposed a penalty of $98 and respondent
has agreed to pay $70. Respondent's evaluation ~heet claims that the mine
atmosphere contained no methane and that the weekly check of equipment had
revealed no permissibility violations. In view of the contested facts, the
Assessment Office may have assigned excessive points under the criteria of
negligence and gravity. Therefore, respondent's offer to pay a penalty of
$70 should be approved.
Citation Nos. 795527 and 795528 alleged that respondent had violated
section 75.503 because permissibility violations existed in a shuttle car and
cutting machine, respectively. The Assessment Office considered that both
violations involved ordinary negligence, that they were serious, and that
respondent demonstrated a better than average effort to achieve rapid compliance with respect to Citation No. 795527 and demonstrated a normal effort
to achieve compliance with respect to Citation No. 795528. The Assessment

114

Office proposed a penalty of $122 and $98 for Citation Nos. 795527 and
795528, respectively, and respondent has agreed to pay penalties of $95 and
$70, respectively. The operator's evaluation sheet claims that the weekly
examination had revealed no permissibility violations, that no methane was
present, and that ventilation was good. In view of the extenuating circumstances alleged by the operator, I find that respondent's agreement to pay
penalties of $95 and $70 should be approved.
Citation No. 795536 alleged that respondent had violated section 75.1722
because the belt feeder head roller was not adequately guarded in that the
wire guard had been pulled back far enough to expose a person to the hazard
of being caught in the roller. The Assessment Office considered that the
violation involved ordinary negligence, that it was serious, and that respondent had made a better than average effort to achieve rapid compliance. The
Assessment Office proposed a penalty of $114 and respondent has agreed to pay
a penalty of $80. Respondent's evaluation sheet indicates that the belt
examiners had not yet made their inspection as the citation was written at
7:50 a.m. Respondent corrected the violation within 10 minutes after the
citation was written. In such circumstances, I find that respondent's agreement to pay $80 should be approved.
Citation No. 795538 alleged that respondent had violated section 75.200
because a crosscut between the Nos. 4 and 5 entries was 25 feet wide in
violation of respondent's roof-control plan which permits crosscuts to be
no more than 20 feet wide. The Assessment Office considered that the violation involved ordinary negligence, that it was serious, and that respondent
had demonstrated an ou~standing effort to· achieve rapid compliance. The
Assessment Office proposed a penalty of $170 and respondent has agreed to
pay $130. Respondent's evaluation sheet claims that the wide crosscut was
needed for the purpose of turning the mining machine around and that it was
improbable that injury would result from the violation, and that production
was stopped so that the crosscut could be timbered immediately. Respondent's
evaluation sheet raises questions as to whether the alleged violation was as
serious or involved as much negligence as the Assessment Office believed.
Therefore, respondent's agreement to pay a penalty of $130 should be
approved.
Citation No. 795539, as modified, alleged that respondent hatl violated
section 75.316 because there was an excessive amount of dust in the No. 4
Unit as a result of respondent's failure to use water to control dust. The
Assessment Office considered that the violation involved ordinary negligence,
that it was serious, and that respondent had demonstrated an outstanding
effort to achieve rapid compliance. The Assessment Office proposed a penalty
of $106 and respondent has agreed to pay $75. Respondent's evaluation sheet
contends that no violation occurred as no dust was in suspension. In view
of the question of fact which would have been raised if a hearing had been
held, I find that respondent's agreement to pay. a penalty of $75 should be
approved.
Citation No. 795540 alleged that respondent had violated section 75.200
because a roof bolter was not provided with two temporary supports as

115

required by the roof-control plan. The Assessment Office considered that the
violation involved ordinary negligence, that it was serious, and that.respondent had demonstrated an outstanding effort to achieve rapid compliance. The
Assessment Office proposed a penalty of $98 and respondent has agreed to pay
$70. Respondent's evaluation sheet alleges that no roof bolting had yet been
done and that the roof was in good condition. If a hearing had been held,
questions of fact would have been raised as to respondent's negligence and
as to the gravity associated with failure to install temporary supports
before any roof bolting had been started. Therefore, respondent's agreement
to pay a penalty of $70 should be approved.
Citation No. 796521 alleged that respondent had violated section 75.503
because there were nonpermissible openings on a scoop while it was being used
inby the last open crosscut in No. 2 entry. The Assessment Office considered
that the violation involved ordinary negligence, that it was serious, and
that respondent had demonstrated an outstanding effort to achieve rapid
compliance. The Assessment Office proposed a penalty of $106 and respondent
has agreed to pay $75. Respondent's evaluation sheet claims that no methane
was present in the mine atmosphere and that there was no likelihood of an
explosion. In view of the questions of fact raised by respondent's claim
that the violation was nonserious, respondent's agreement to pay a penalty
of $75 should be approved.
Citation No. 796522 alleged that respondent had violated section 75.316
because an airlock had not been provided at the belt tailpiece. The Assessment Office considered that the violation involved ordinary negligence,
that it was serious, and that respondent had demonstrated an outstanding
effort to achieve rapid compliance. The Assessment Office proposed a penalty
of $84 and respondent has agreed to pay a penalty of $60. Respondent's
evaluation sheet claims that an airlock had been constructed but that it had
been torn down when it became caught in the belt conveyor. Respondent also
claims that good ventilation was being maintained on the section. If a hearing had been held, questions of fact would have been raised as to whether
respondent was negligent and as to whether the violation was serious in the
circumstances. Therefore, respondent's agreement to pay $60 should be
approved.
Citation No. 796523 alleged that respondent had violated section 75.703
because a battery charger was being used to charge the batteries on a scoop
without providing a proper frame ground for the charger. The Assessment
Office considered that the violation involved ordinary negligence, that it
was serious, and that respondent had demonstrated an outstanding effort to
achieve rapid compliance. The Assessment Office proposed a penalty of $140
and respondent has agreed to pay a penalty of $110. Respondent's evaluation
sheet claims that the frame ground was torn loose during the shift preceding
the shift on which the inspector's citation was written and that chargers
are equipped with back-up grounding systems. If a hearing had been held,
questions of fact would have been raised as to the extent of respondent's
negligence and as to the gravity of the violation. Therefore, I find that
respondent's agreement to pay a penalty of $110 should be approved.
1

116

Citation No. 796525 alleged that respondent had violated section 75.303
because inadequate examinations of the conveyor belts had been made in that
obvious violations were observed by the inspector but a record of the violation had not been recorded in the approved belt examiners' book located on
the surface. The Assessment Office considered that the violation involved
ordinary negligence, that it was serious, and that respondent made a normal
effort to achieve compliance. Respondent's evaluation sheet claims that
management had no knowledge that the belts were not being adequately
examined and that they had been examined that d~y. If a hearing had been
held, a number of factual issues would have been raised as to whether respondent was negligent and as to the gravity of the alleged violation. Therefore, respondent's agreement to pay a penalty of $140, instead of the
penalty of $180 proposed.by the Assessment Office, should be approved.
Citation No. 596531 alleged that respondent had violated section 75.606
because a scoop was observed as it was driven over the energized cable of
the loading machine. The Assessment Office considered that the violation
involved no negligence, that it was serious, and that respondent had demonstrated a normal effort to achieve compliance. The Assessment Office proposed a penalty of $84 and respondent has agreed to pay $60. Respondent's
evaluation sheet claims that management had no control over the situation
because the employee disobeyed company orders in running over the cable.
Respondent also claims that the grounding mechanism and circuit breaker were
operative. The inspector's citation shows that the violation was corrected
within 10 minutes and that it was determined that the loading machine's cable
had not been damaged. The Assessment Office failed to give respondent credit
for stopping production to make a quick examination of the cable. In such
circumstances, respondent's agreement to pay a penalty of $60 should be
approved.
Docket No. KENT 79-187
Citation No. 401741 alleged that respondent had violated section
70.lOO(b) because the average concentration of respirable dust in the
environment of the high-risk miner was 3.6 milligrams per cubic meter of air.
The Assessment Office considered that the violation involved ordinary negligence, that it was very serious, and that respondent demonstrated a normal
effort to achieve compliance. The Assessment Office proposed a penalty of
$255 and respondent has agreed to pay a penalty of $200. Neither the
official file nor the materials submitted with the motion to approve settlement contain any statements showing that the Assessment Office incorrectly
overstated the negligence o~ seriousness of the alleged violation. On the
other hand, respondent's agreement to pay $200 for this violation of the
respirable dust standard shows that the parties have recognized that the
degree of negligence and gravity associated with this alleged violation was
rather high. Since there is nothing in the record to show how long the
condition lasted, I conclude that the miners w~re not exposed to 3.6 milligrams of respirable dust for a long period of time. Therefore, respondent's
agreement to pay $200 is reasonable and should be approved.

117

Citation No.· 794976 alleged that respondent had violated section 75.301
because respondent had not provided enough air at the working face for the
velocity of the air to be measured with an anemometer. The Assessment Office
considered that the violation involved ordinary negligence, that it was
serious, and that respondent demonstrated an outstanding effort to achieve
rapid compliance. The Assessment Office proposed a penalty of $106 and
respondent has agreed to pay $75. Respondent's evaluation sheet explains
that the curtain had been torn by a shuttle car, that the helper of the
cutting-machine operator was in the process of moving up the waterline, and
that no methane was d~tected. The inspector's citation shows that respondent
increased the velocity of air to 3,600 cubic feet within 5 minutes after the
citation was written. I find that there were enough extenuating circumstances to justify acceptance of respondent's offer to pay a penalty of $75.
Citation No. 794978 alleged that respondent had violated section 75.316
by failing to have two water sprays on the cutting machine. Respondent's
ventilation, methane, and dust control plan requires that the machine have
two operable sprays. The Assessment Office considered that the violation
involved ordinary negligence, that it was serious, and that respondent demonstrated a better than average effort to achieve rapid compliance. The
Assessment Office proposed a penalty of $140 and respondent has agreed to
pay $110. Respondent's evaluation sheet claims that two water sprays had
been installed on the cutting machine and that one had been knocked off.
Respondent claims that management was unaware of the missing spray because
one spray was doing an adequate job of wetting the coal. Respondent also
claims that production was stopped and that an additional spray was installed
within a period of 30 minutes. In such extenuating circumstances, respondent's offer to pay a penalty of $110 should be approved.
WHEREFORE, it is ordered:
(A) For the reasons hereinbefore given, the seven motions for approval
of settlement filed in this proceeding on December 31, 1979, are granted and
the settlement agreements are approved.
(B) Pursuant to the settlement agreements, respondent, within 30 days
from the date of this decision, shall pay civil penalties totaling $8,378.00
which are allocated to the respective alleged violation as follows:
Docket No. KENT 79-181
Citation No. 795149 3/8/79 § 77.1607(0) •••••••••••
Citation No. 795152 3/12/79 § 77.410 ••••••••••••••
Total Settlement Penalties in
Ibcket No. KENT 79-181 •••••••••••••••••••••

$

14.00
60.00

$

74.00

$

65.00
70.00

Docket No. KENT 79-182
Citation No. 795701 3/20/79 § 75.1100-l(e) ••••••••
Citation No. 795702 3/20/79 § 75.1100-2(d) ••••••••

118

Citation No. 795703 3/20/79 § 75.601-1 ••••••••••••
Citation No. 795704 3/20/79 § 75.1722(a) •••••• ~ •••
Citation No. 795705 3/20/79 § 75.601 ...•...•.••.•.
Citation No. 795706 3/20/79 § 75.523 ••••••••• ; ••••
Citation No. 795712 3/27/79 § 75.904 ••••••••••••••
Citation No. 795713 3/27/79 § 75.601 ••••••••••••••
Citation No. 795714 3/27/79 § 75.516 •.••..••.•..•.
Citation No. 795715 3/27 /79 § 75.1722(b) ••••••••••
Citation No. 795716 3/29/79 § 75.515 .•••••••.•••••
Citation No. 795717 3/29/79 § 75.1722(b) •••••• r •••
Citation No. 795718 3/29/79 § 75.400 •••••.••••••••

70.00
100.00
80.00
100.00
115.00
70.00
75.00
115.00
115.00
115.00
95.00

Total Settlement Penalties in
Docket No. KENT 79-182 •••••••••••••••••••••

$1,185.00

Docket No. KENT 79-183
Citation No. 794820 2/5/79 § 75.606 •••••••••••••••

$

79.00

Total Settlement Penalties in
Docket No. KENT 79-183 •••••••••••••••••••••

$

79.00

Docket No. KENT 79-184
Order No. 795432 2/15/79 § 75.200.................

$~,000.00

Total Settlement Penalties in
Docket No. KENT 79-184............... •.•.••••

$5,000.00

Docket No. KENT 79-185
Citation No. 9948483 3/2/79 § 70.250 ••••••••••••••
Citation No. 795155 4/3/79 § 75.1714..............
Total Settlement Penalties in
Ibcket No. KENT 79-185 •••••••••••••••••••••

$

60.00
60.00

$ 120.00

Docket No. KENT 79-186
Citation No. 795340 3/19/79 § 75.603 ...••.•••....•
Citation No. 795521 3/19/79 § 75.605 ••••••••• ·•••••
Citation No. 795522 3/19/79 § 75.1107-16(b) •••••••
Citation No. 795523 3/20/79 § 75.603 ••••••••••••••
Citation No. 795524 3/20/79 § 75.1722 •••••••••••••
Citation No. 795525 3/21/79 § 75.202 ••••.•••••••••
Citation No. 795526 3/21/79 § 75.503 ••••••.•••••••
Citation No. 795527 3/21/79 § 75.503 ••••.•••••••••
Citation No. 795528 3/21/79 § 75.503 ••••••••••••••
Citation No. 795536 3/27/79 § 75.1722 •••••••••••••
Citation No. 795538 3/27/79 § 75.200 ••••••••••••••

119

$

95.00
95.00
60.00
95.00
80.00
75.00
70.00
95.00
70.00
80.00
130.00

Citation No. 795539 3/27/79 § 75.316 ...•..........
Citation No. 795540 3/27/79 § 75.200 ••••••••••••• ~
Citation No. 796521 3/27 /79 § 75.503 ••••..••.•••••
Citation No. 796522 3/27 /79 § 75.316 ••..•••.•••••.
Citation No. 796523 3/27 /79 § 75.703 ••••.•••••..••
Citation No. 796525 3/29/79 § 75.303 •••.•••••••.••
Citation No. 796531 3/30/79 § 75.606 •••••.••••••••

75.00
70.00
75.00
60.00
110.00
140.00
60.00

Total Settlement Penalties in
·Docket No. KENT 79-186.....................

$1,535.00

Docket No. KENT 79-187
Citation No. 401741 12/12/78 § 70.lOO(b) ••••••••••
Citation No. 794976 4/6/79 § 75.301 •••••••••••••••
Citation No. 794978 4/6/79 § 75.316 •••••••••••••••

$

200.00
75.00
110.00

Total Settlement Penalties in
Docket No. KENT 79-187.....................

$

385.00

Total Settlement Penalties in
This Proceeding ••••••••••••••••••••••••••••

$8,378.00

~c~~
~

Richard C. Steff.ey
Administrative Law Judge
Distribution:

George Drumming, Jr., Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Pyro Mining Company, Attention: Bennie E. Morgan, Director of Safety
and Training, P.O. Box 267, Sturgis, KY 42459 (Certified Mail)

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

JAN 2 8 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. PIKE 79-22-P
Assessment Control No.
15-09646-03001

Petitioner

v.
TRIPLE S COAL COMPANY,

Mine No. 2
Respondent
DECISION

Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Gary Stiltner, Ash Camp, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to written notice dated April 12, 1979, as amended May 7,
1979, a hearing in the above-entitled proceeding was held on May 17, 1979,
in Pikeville, Kentucky, under section 105(d) of the Federal Mine Safety
and Health Act of 1977.
MSHA's Petition for Assessment of Civil Penalty was filed on
November 14, 1978, in Docket No. PIKE 79-22-P seeking assessment of a
civil penalty for an alleged violation of 30 CFR 75.1711 by respondent.
Issues
The issues raised by the Petition for Assessment of Civil Penalty are
whether a violation of 30 CFR 75.1711 occurred and, if so, what monetary
penalty should be assessed, based on the six criteria set forth in section
llO(i) of the Act. My decision as to whether a violation occurred will be
based on the findings of fact set forth below:
Findings of Fact
(1) The respondent in this proceeding is Triple S Coal Company which
is a four-man partnership (Tr. 19). For a short period of time, respondent
operated a No. 1 Mine near Feds Creek, Kentucky. Respondent subleased the
mineral rights to the coal in its No. 1 Mine from Hawkins Coal Company.

121

(2) Another company, B D and D Coal Company, operated a mine about
one-half mile from respondent's No. 1 Mine. B D and D Coal Company also
subleased the mineral rights to the coal in its mine from Hawkins Coal
Company. After BD&D had stopped producing coal in its mine, Hawkins Coal
Company asked Mr. Gary Stiltner, one of the copartners in Triple S Coal
Company, to inspect the mine which BD&D had· abandoned to determine if any
more coal could economically be produced from that mine (Tr. 20).
(3) After a coal mine is abandoned, no person may reenter that mine
without filing with MSHA for permission to reopen the mine (Tr. 21). Therefore, in order for Mr. Stiltner to inspect the mine abandoned by BD&D, it
was necessary for him to travel to Phelps, Kentucky, and execute certain
forms which indicated that Triple S Coal Company wished to reopen, as its
No. 2 Mine, the mine which BD&D had abandoned (Exh. 4; Tr. 20).

(4) In May 1977, Mr. Stiltner and two MSHA inspectors examined the
No. 2 Mine to determine whether there was coal in the mine which could be
produced economically (Tr. 22). The MSHA inspectors and Mr. Stiltner found
that so much work would have to be done to the No. 2 Mine to make it operable,· that the small amount of coal reserves remaining in the mine could
not be economically produced (Tr. 20). After he had determined that the
No. 2 Mine could not be operated economically, Mr. Stiltner returned to
MSHA's office and filled out the necessary forms to show that Triple S Coal
Company had abandoned the No. 2 Mine (Tr. 20). MSHA's Mine Information
Form alleges that Triple S Coal Company had four men working at the No. 2
Mine, but not producing coal. Mr. Stiltner intended for the information
furnished to MSHA to show how many men planned to work at the No. 2 Mine
if the initial inspection of the mine had indicated that the No. 2 Mine
could become a feasible operation (Tr. 21-22; Exh. 4).
(5) As it turned out, Triple S Coal Company never did produce any
coal at the No. 2 Mine and none of the Triple S Coal Company's copartners,
other than Mr. Stiltner, ever went to the No. 2 Mine, and Mr. Stiltner only
entered the No. 2 Mine once while in the company of two MSHA inspectors (Tr.
22).
(6) Section 75.1711 provides that any coal mine which is permanently
closed, or abandoned for more than 90 days, shall be sealed by the operator
of the mine in a manner prescribed by the Secretary. The manner of sealing
is set forth in section 75.1711-2 providing that the entries of abandoned
or closed mines are to be sealed with materials such as concrete blocks
or~by filling the entries with incombustible material for a distance of
25,feet. Additionally, drain pipes at least 4 inches in diameter must be
installed in at least one entry (Tr. 10).
(7) An MSHA inspector examined the site of respondent's No. 2 Mine on
September 20, 1977, and found that the Nos. 1 and 3 entries had been properly sealed, but the Nos. 2 and 4 entries had not been properly sealed.
Dirt had been pushed into the Nos. 2 and 4 entries for a distance of only
about 5 or 10 feet and there was space above the dirt through which persons
could enter the mine (Tr. 6-7).

122

(8) After observing the conditions described in paragraph (7) above,
the inspector issued Notice No. 1 ELF (7-2) on September 20, 1977, citing
respondent for a violation of section 75.1711 (Tr. 6; Exh. 1).
On the basis of the findings set forth above, I conclude that a violation of section 75.1711 occurred. Mr. Stiltner was actually making an
economic evaluation of the coal reserves remaining in the No. 2 Mine as an
agent for Hawkins Coal Company (Tr. 21), but there is nothing on the Mine
Information Form in MSHA's files to show that Mr. Stiltner was acting for
Hawkins. The Mine.Information Form shows only that Triple S Coal Company
had applied for permission to reopen the mine which BD&D had been operating.
1be Form shows that Triple S Coal Company intended to operate the mine as
its No. 2 Mine. Although Mr. Stiltner was acting as Hawkins' agent, he was
also acting on behalf of the partnership which owned Triple S Coal Company
because he stated that if producible coal reserves had been found, the four
partners who comprised Triple S Coal Company would have jointly participated
in operating the No. 2 Mine (Tr. 27-28; Exh. 3).
Having found that a violation occurred, it is now necessary to consider
the six criteria before assessing a civil penalty.
Size of Respondent's Business
Respondent's No. 1 Mine produced only about 20 tons of coal daily over
a short period of time (Tr. 26). Respondent never did operate the No. 2
Mine as an active mine (Tr. 18; 21). The four partners who operated the
No. 1 Mine are now producing coal from a mine in Virginia under the name
of G and R Coal Company. The reserves from the Virginia mine were obtained
from Bostic Coal Company. The Virginia mine produces about 50 or 60 tons
of coal per day. The coal was sold to Bostic Coal Company until May 14,
1979, when Bostic notified the partners that it no longer had any orders
to fill and would not purchase any more coal from the four partners until
further notice (Tr. 29-30).

On the basis of the facts set forth above, I find that respondent is
a very small operator and that the penalty should -be assessed in a low
range of magnitude to the extent that it is determined under the criterion of the size of respondent's business.
Effect of Penalties on Ability of Respondent To Continue in Business
The facts reviewed above show that the four partners are now operating
only a single coal mine. At the time of the hearing, they were stockpiling
their coal because they had no market for it. Even when they have a market
for their coal, they would be likely to have a marginal operation because
they were producing only 50 to 60 tons per day. I find that some consideration should be given in assessing a penalty to the criterion of whether payment of penalties will cause respondent to discontinue in business.

123

History of Previous Violations
C.Ounsel for MSHA stated at the commencement of the hearing that respondent does not have a history of previous violations at its No. 2 Mine (Tr.
3). Therefore, it is unnecessary to consider the criterion of history of
previous violations in assessing a penalty.
Good Faith Effort To Achieve Rapid Compliance
Notice No. 1 ELF .was written on September 20, 1977, and provided that
respondent should have until October 21, 1977, within which to seal the
entries on the No. 2 Mine (Exh. 1). On October 25, 1977, an inspector
other than the one who had written Notice No. 1 ELF issued Order of Withdrawal No. 1 HB stating that entry No. 1 was not properly sealed and that
no drain pipes had been provided for the Nos. 1, 2 and 3 openings within
the time allowed. The conditions stated in the withdrawal order imply the
existence of sealing requirements which are inconsistent with MSHA's actual
requirements for the sealing of abandoned mines. The withdrawal order
alleges that respondent had failed to place drain pipes in the Nos. 1, 2
and 3 entries, whereas MSHA's reqirements for installation of drain pipes
state (Tr. 10-11):

* * * A means to prevent a build-up of water behind the seal
shall be provided in at least one of the seals. Metal pipes
used for this purpose shall be a minimum of 4 inches in
diameter and shall be installed of sufficient height above
the bottom of the.seal to prevent it from becoming blocked
with mud or debris. [Emphasis supplied.]
The inspector who wrote Notice No. 1 ELF testified that no drains had been
placed in the entries and that the Nos. 1 and 3 entries had been sealed,
whereas the Nos. 2 and 4 entries had not been adequately sealed (Tr. 7).
The order of withdrawal alleges that only the No. 1 entry had not been
adequately sealed and that drains were needed in three of the four entries.
The inference which could be drawn from the order of withdrawal is that
some work had been done between the writing of the notice by one inspector
and the issuance of the withdrawal order by a different inspector. Inasmuch as the inspector who wrote the notice had not been back to the mine
after he issued the notice and since Mr. Stiltner had not returned to the
mine after the notice was written, there were no witnesses at the hearing
who could state whether any work had been done to improve the seals on the
entries between the time the notice was issued and the time the withdrawal
order was issued.
Respondent's defense in this proceeding has always been that since it
owned neither the mineral rights nor the land on which the No. 2 Mine was
situated, it was not obligated to seal the.mine under the requirements of
section 75.1711 (Tr. 23). Mr. Stiltner testified that the owner of the
land on which respondent's No. 1 Mine was located did not want the entries
sealed after respondent abandoned the No. 1 Mine, but Hawkins Coal Company,

124

from whom he subleased the coal, had sealed the entries to the No. 1 Mine
despite the land owner's objections. Mr. Stiltner stated that whatever
work had been done in sealing the entries to the No. 2 Mine had also been
done by someone hired by Hawkins Coal Company (Tr. 23).
The facts reviewed above show that Hawkins Coal Company may have
attempted to do some additional work toward sealing the No. 2 Mine after
the notice was issued, but there is no specific evidence in the record to
support a finding that Hawkins or anyone else actually did any additional
work toward sealing the mine after the notice was issued. The discrepancies between the conditions described in Notice No. 1 ELF and Order
No. 1 HB may have resulted from two inspectors having come to slightly
different cone lusions after examining the ·same physical evidence.
In order to find that respondent made a good faith effort to achieve
compliance, there should be. some evidence .showing that respondent took
some kind of action to make certain that all the entries of the No. 2
Mine were sealed ~fter Notice No. 1 ELF was·issued, but the evidence shows
that respondent did nothing •. Although respondent knew that Hawkins Coal
Company had undertaken to seal the entries before the notice was issued,
respondent made no effort to get Hawkins to improve or complete the sealing work which had already been started. Mr. Stiltner knew that Hawkins
had hired a third party to do the work that had been done before the
notice was written (Tr. 23). It is inconceivable that Hawkins would have
hired a third party to seal the entries in a fashion which would not pass
MSHA's inspection. That third party was liable to Hawkins for doing a
satisfactory job in s.ealing the entries. The least that respondent
should have done would have been to have reported to Hawkins that the
No. 2 Mine had not been properly sealed and that as a result of the poor
workmanship done by the third party which Hawkins had hired to seal the
entries, respondent had been cited for a violation of section 75.1711.
Respondent could have then insisted that Hawkins have the third party complete the work which had been started, but not completed in a satisfactory
manner.
Respondent's failure to do anything whatsoever after Notice No. 1 ELF
was issued supports a finding, and I so find, that respondent failed to
make a good faith effort to achieve compliance after Notice No. 1 ELF was
issued. Therefore, respondent's indifference about seeing that the mine
was properly s.ealed will be given considerable weight in assessing a
penalty.
Negligence
As indicated above, respondent did not own the mineral rights to the
coal and did not .own the land on which the No. 2 Mine was situated. The
land owner did not want the mine entries sealed after respondent had abandoned its No. 1 Mine, but Hawkins Coal Company, which owned the mineral
rights, sealed the entries despite the contrary wishes of the land owner
(Tr. 24-25). Respondent has been involved in several coal-mining operations and is knowledgeable about the obligations which an operator has to

125

assume when he abandons a mine. Moreover, MSHA sends each operator who
abandons a mine a letter advising him that he must do certain things.
Among those things is the requirement that he seal the openings of the
mine which he has abandoned (Tr. 9-10). Respondent did not deny that it
had received that sort of information from MSHA.
Even if MSHA failed to send a letter to respondent advising him about
the requirement that entries of abandoned mines are required to be sealed,
the former Board of Mine Operations Appeals held in Freeman Coal Mining Co.,
3 IBMA 434 (1974), that the operator is conclusively presumed to know what
the mandatory health and safety standards are. Consequently, I find that
respondent's failure to inquire about the sealing of the No. 2 Mine involved
ordinary negligence even though respondent expected Hawkins Coal Company to
do the actual sealing of the mine. Respondent's witness agreed at the hearing that abandonment of the No. 2 Mine involved the furnishing of a final map
just as if respondent had actually produced coal from the No. 2 Mine (Tr. 23).
Since respondent also knew that the entries had to be sealed (Tr. 23), he
should have made an effort to seal the mine or determine for certain that
Hawkins Coal Company intended to seal the entries as required by section
75.1711.
Gravity of the Violation
'!he inspector stated that the danger associated with failure to seal
the mine was that the mine was located about one-half mile from the nearest
residence and that a person might venture to the site of the mine and might
enter it and be injured or killed either by rocks falling from the roof or
by encountering air devoid of oxygen. The No. 2 Mine was a relatively
shallow mine which extended only about 400 feet underground (Tr. 8-9), but
that would be a sufficient distance for a person to be injured or killed if
he should venture into the mine. The mine was located only 2 miles from a
school house and it is easily possible that someone from the school might
walk to the mine from the school and be injured (Tr. 5). Therefore, I
find that the violation was serious.
Assessment of Penalty
There are many extenuating circumstances associated with assessing a
penalty in this proceeding. The facts show that Mr• Stiltner was acting as
an agent of Hawkins Coal Company. He apparently expected Hawkins Coal Company to seal the No. 2 Mine just as it sealed his No. ·l Mine. Hawkins Coal
Company's failure to seal the mine adequately resulted in respondent's being
cited for the violation of section 75.1711. As Mr. Stiltner conceded at the
hearing, he made a mistake in not showing on the Mine Information Form that
it was really Hawkins Coal Company which wanted the No. 2 Mine reopened in
order to evaluate the economic feasibility of recovering coal from that mine
(Tr. 21). If Hawkins Coal Company's name had appeared on the Mine Information Form, there is reason to assume that Notice No. 1 ELF would have been
issued in the name of Hawkins Coal Company instead of Triple S Coal Company.

126

It seems somewhat unfair to require respondent to pay a civil penalty
for failure to perform an obligation which another company probably should
have done, and did attempt to do in an inadequate fashion. There was no
information in MSHA's files, however, which even hinted that Mr. Stiltner
was really having the No. 2 Mine reopened at the request of Hawkins Coal
Company.
Therefore, MSHA properly held Triple S Coal Company liable for
sealing the mine because it had no reason to believe that any other entity
was liable.
Considering that respondent operates a very small business, that its
operations would be adversely affected by a large penalty, that a good faith
effort was not made to achieve compliance, that there is no history of previous violations, that ordinary negligence was involved, and that the violation was serious, a penalty of $150 will hereinafter be assessed for this
violation of section 75 .'1711.
Ultimate Findings and Conclusions

(1) Respondent should be assessed a civil penalty of $150.00 for
the violation of section 75.1711 cited in Notice No. 1 ELF (7-2) dated
September 20, 1977.
(2) Respondent, as the operator of record of the No. 2 Mine, is subject to the Act and to the regulations promulgated thereunder.

WHEREFORE, it is ordered:
Respondent, within 30 days from the date of this decision, shall pay a
civil penalty of $150.00 for the violation described in paragraph (1) above.;

~ef7e~ r-Jfa#~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
John H. O'Donnell, Trial Attorney, Office of the Solicitor; U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Triple S Coal Company, Attention: Gary Stiltner, Copartner, P.O.
Box 196, Ash Camp, KY 41512 (Certified Mail)
G & R Coal Company, Attention: Gary Stiltner, Copartner, Route 3,
Box 10, Cedar Bluffs, VA 24609 (Certifi~d Mail)

127

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

JAN 2 8 t980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. BARB 79-157-P
A.C. No. 15-09816-03002

Petitioner

v.
No. 1 Surface Mine
BLACK JACK COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Larry Cleveland, Esq., Frankfort, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to written notice dated April 12, 1979, a hearing in the above-··
entitled proceeding was held on May 16, 1979, in Pikeville, Kentucky, under
section 105(d) of the Federal Mine Safety and Health Act of 1977.
MSHA's Petition for Assessment of Civil Penalty in this proceeding was
filed on December 13, 1978, and seeks to have civil penalties assessed for
three alleged violations of the mandatory health and safety standards by
respondent.
Issues
In a civil penalty proceeding, the issues normally raised by the Petition for Assessment of Civil Penalty are wheth'er violations occurred and, if
so, what monetary penalties should be assessed, based on the six criteria
set forth in section llO(i) of the Act. In this proceeding, counsel for
respondent stipulated that the violations alleged in MSHA's citations had
occurred and that the only matters which he wished to have me consider· are
those pertaining to the six criteria (Tr. 3).
Four of the six criteria may usually be given a general evaluation, but
in this proceeding it is perferable to consider on a generalized basis only
two of the criteria, namely, the size of respondent's business and the question of whether the payment of penalties would ·cause respondent to discontinue in business. The remaining four criteria, that is, respondent's good

128

faith effort to achieve rapid compliance, respondent's negligence, if any,
the gravity of the violations, and respondent's history of previous violations, will be considered on an individual basis when the parties' evidentiary presentations are hereinafter reviewed. The two criteria concerning
the size of respondent's business and whether the payment of penalties would
cause respondent to discontinue in business are considered below.
Size of Respondent's Business
The thre~ citations to be considered in this proceeding were all written
on April 12, 1978. At that time, respondent's mine employed about 20 men
and produced approximately 500 tons of coal per day from the Little Caney
coal seam (Tr. 6-7). At the time of the hearing, which was held on May 16,
1979, respondent was employing between 60 and 70 miners and was producing
about 290,000 tons of coal per year, or about 1,160 tons per day, assuming
that the coal mine operated 250 days each year (Tr. 51). Those facts support
a finding that respondent is a relatively small operator and that penalties
should be assessed in a fairly low range of magnitude insofar as the penalties are determined under the criterion of the size of respondent's
business.
Effect of Penalties on Operator's Ability To Continue in Business
Respondent's witness testified that assessment of penalties in the range
proposed by the Assessment Office, that is, $150 for each alleged violation,
would not be likely to cause respondent to discontinue in business. A
company which has tripled its working force in a period of about 1 year is
not likely to discontinue in business even if penalties considerably greater
than $150 were to be assessed. Inasmuch as respondent is operating a strip
mine, it is likely that exhaustion of suitably located coal reserves is more
likely to cause it to discontinue in business than payment of penalties.
Citation No. 123424 April 12, 1978 § 77.107 (Exhibit 2)
Findings. Section 77.107 requires every operator of a coal mine to
provide a program approved by the Secretary for the training and retraining
of personnel in the tasks which they are required to perform as certified
and qualified persons. Respo~dent .stipulated that the violation occurred
(Tr. 3). The violation was moderately serious because there is no way to be
certain that mine personnel have been SGheduled to receive training in such
subjects as first aid, mine rescue, safety regulations, use of self-rescuer,
methods for detecting methane and oxygen deficiency, etc., unless respondent
has a written program providing for such training. Respondent was negligent
in failing to have a program because such programs were required to be submitted on or before September 30, 1971, and respondent should certainly have
submitted the program by April 12, 1978 (T+. 9-20).
Conclusions. Respondent's witness stated that he was certain that he
had certified persons at his mine, but he was unaware that they had to be
retrained on an annual basis (Tr. 45-46). It is no doubt difficult to keep

129

abreast of the regulations, but the former Board of Mine Operations Appeals
held in Freeman Coal Mining Co., 3 IBMA 434 (1974), that the operator is
conclusively presumed to know what the mandatory health and safety standards
are. The mine foreman did not have a card to show that he had received the
necessary annual retraining in the required subjects (Tr. 20).
The inspector conceded that respondent's personnel appeared to be competent in operating their equipment but he stated that he could not conclude
from their ability to operate equipment that they also knew how to administer
first aid in case of an accident nor that they knew how to test for oxygen
deficiency or the presence of methane (Tr. 18). The fact that a mine foreman
may at some time have had an initial course in first aid is not a reason to
reduce the degree of negligence involved in respondent's failure to submit a
training program for MSHA's approval as required by section 77.107.
Considering that respondent operates a relatively small business, that
the violation was moderately serious, that respondent was negligent, that
respondent showed a normal good faith effort to achieve compliance, and that
respondent has not previously violated section 77.107, a penalty of $75 will
hereinafter be imposed.
Citation No. 123425 April 12, 1978 § 77.106 (Exhibit 4)
Findings. Section 77.106 requires the operator of each coal mine to
maintain a list of all certified and qualified persons. Respondent stipulated that a violation of section 77.106 had occurred (Tr. 3). The violation
was nonserious. Respondent was negligent in failing to maintain a list of
certified and qualified persons (Tr. 21-30).
Conclusions. In the inspector's opinion, it is important for each
operator of a coal mine to make a list of the persons who are certified at
his mine so that everyone will know which person is in charge in case a miner
should be injured (Tr. 24). On cross-examination, the inspector conceded,
however, that the miners would expect the foreman to be in charge in case of
an emergency (Tr. 28).
The operator submitted to MSHA's office located in Barbourville,
Kentucky, a list of three persons for the purpose.of complying with section
77.106. The list was received in evidence as Exhibit 10. The three persons
whose names appear on the list received a first-aid course, but the list does
not indicate the dates on which the three persons received first-aid training. Nevertheless, the inspector stated that he had been accepting a list
such as that submitted by respondent as satisfactory compliance with section
77.106 (Tr. 32-33).
Considering that a moderately small operator is involved, that the violation was nonserious, that ordinary negligence was involved, that respondent
showed a normal good faith effort to achieve compliance, and that respondent
has not previously violated section 77.106, I believe that a penalty of $25

130

is reasonable, especially since the charge in Citation No. 123424 for failure
to have a training program somewhat overlaps the charge in Citation
No. 123425 for failure to submit a list of certified persons.
Citation No. 123426 April 12, 1978 § 77.1000 (Exhibit 6)
Findings. Section 77.1000 requires each operator to establish and
follow a ground control plan for the safe control of all highwalls, pits, and
spoil banks to be developed at his mine. It was stipulated that respondent
had violated section 77.1000 (Tr. 3). The violation was nonserious because
the inspector stated that respondent's highwall and spoil bank were both
stable and that he saw no violation in the way respondent was controlling his
highwall. Respondent was negligent for failing to have and to submit a
ground control plan (Tr. 37-41).
Conclusions. Respondent's witness stated that he thought the ground
control plan was associated with the surface ~ining regulations which are
administered by the Department of the Interior. He understood that those
regulations were to become-effective on May 3, 1978. He said he was, therefore, surprised to be cited on April 12, 1978, for failure to have a ground
control plan (Tr. 50; 60). It is difficult to keep informed as to all the
regulations pertaining to mining coal, but respondent's witness stated on
cross-examination that he had not tried to obtain clarification as to the
regulations even though his mine is not far from the MSHA office at Hazard,
Kentucky (Tr. 54). Additionally, Exhibit 1 indicates that respondent was
previously cited for a violation of section 77.1000 on July 15, 1976. That
previous violation should have made him acutely aware of the fact that he
was required to establish a ground control plan and submit it to MSHA before
May 3, 1978.
Respondent's witness did, however, appear to be sincerely interested in
complying with all safety regulations and he stated that he had been mining
coal for 3 years without ever having had a lost-time accident at his mine
(Tr. 47). Respondent's witness stated that he had asked for a hearing on
the three violations involved in this proceeding primarily because he wanted
to receive some clarification about the training program he had been cited
for not having and about whether the ground control plan was required in
April at the time he received_ the citation (Tr. 54-57).
Considering that a relatively small business is involved, that the violation of section 77.1000 was nonserious in the circumstances, that respondent was negligent for failing to submit the plan to MSHA, and that there
was a good faith effort to achieve compliance, a penalty of $50 would have
been assessed. Exhibit 1 shows, however, that respondent has violated
section 77.1000 on a previous occasion. That tends to offset the operator's
claim that he thought a ground control plan was one of the requirements of
the new surface mining regulations which were not effective on April 12,
1978, when the instant violation of section 77.1000 was cited. Therefore,
the penalty will be increased by $25 to $75 because of respondent's history
of a previous violation.

131

Summary of Assessments and Conclusions
(1) On the basis of all the evidence of record and the foregoing
findings of fact, respondent should be assessed the following civil
penalties:
Citation No. 123424 4/12/78 § 77.107 •••••••••••••••
Citation No. 123425 4/12/78 § 77.106 ••••••• ~·······
Citation No. 123426 4/12/78 § 77.1000 ••••••••••••••
Total Assessments in This Proceeding ••••••••••

$

75.00
25.00
75.00

$ 175.00

(2) Respondent was the operator of the No. 1 Mine at all pertinent
times and, as such, is subject to the provisions of the Act and to the
regulations promulgated thereunder.
WHEREFORE, it is· ordered:
Respondent, within 30 days from the date of this decision, shall pay
civil penalties totaling $175.00 as summarized in paragraph (1) above.

~e.sStafA
#' ~

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

John H. O'Donnell, Trial Att9rney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd, Arlington, VA 22203
(Certified Mail)
Larry Cleveland, Esq., Attorney for Black Jack Coal Company, Inc.,
P.O. Box 595, 314 Wilkinson Street, Frankfort, KY 40602
(Certified Mail)

132

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

JAN 2 8 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. BARB 79-55-PM
A.O. No. 22-00313-05001

Petitioner

v.
Artesia Quarry & Plant Mine
UNITED CEMENT COMPANY,
Respondent
DECISION
Appearances:

Murray A. Battles, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Joe F• Canterbury, Jr., Esq., Smith, Smith, Dunlap
& Canterbury', D'allas, Texas, for Respondent.

Before:

Judge Cook

I.

Procedural Background

On October 24, 1978, the Mine Safety and Health Administration (MSHA)
filed a petition for assessment of civil penalty pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a)
(1978) (1977 Mine Act), against United Cement Company alleging violations
of various sections of the Code of Federal Regulations. All of the subject
citations were issued pursuant to section 104(a) of the Act. The Respondent
filed its original answer on November 27, 1978, and filed an amended answer
on December 14, 1978.
A notice of hearing was issued on February 22, 1979, setting the case
for hearing on the merits beginning at 9:30 a.m., May 22, 1979. On March 1,
1979, counsel for the Respondent filed a request for a continuance. An
order was issued on March 12, 1979, continuing the hearing to May 31, 1979,
in Birmingham, Alabama.
The hearing was held as scheduled. Representatives of both parties
were present and participated. A schedule for the submission of posthearing
briefs was agreed upon at the conclusion of the hearing. Counsel for the
Petitioner stated that he would not file a brief (Tr. 187-188). Respondent's
posthearing brief was filed on July 16, 1979.

133

II.

Violations Charged
Citation No. 80420, April 4, 1978, 30 CFR 56.9-87. l_/
Citation No. 80421, April 4, 1978, 30 CFR 56.12-34.
Citation No. 80422, April 4, 1978, 30 CFR 56.16-5.
Citation No. 80423, April 4, 1978, 30 CFR 56.20-3.
Citation No. 80424, April 4, 1978, 30 CFR 56.11-2.
Citation No. 80425, April 4, 1978' 30 CFR 56.14-1.
Citation No. 80426, April 4, 1978, 30 CFR 56.9-12.

III.

Evidence Contained in the Record
A.

StiEulations

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

Witnesses

The Petitioner called as its witness Clyde H. Gilliam, an MSHA inspector
on April 4, 1978, and an assessment conference specialist with the.Office
of Assessments on the date of the hearing.
The Respondent called as its witness Darrell Price, the Respondent's
production manager.

c.

Exhibits

1.

The Petitioner introduced the following exhibits into evidence:

M-1 is a copy of Citation No. 80420, April 4, 1978, 30 CFR 56.9-87.
M-l(a) is a copy of the inspector's statement pertaining to M-1.
M-2 is a copy of Citation No. 80421, April 4, 1978, 30 CFR 56.12-34.
M-2(a) is a copy of the termination of M-2.
M-2(b) is a copy of the inspector's statement pertaining to M-2.
1/ The Petitioner moved, at the close of its case-in-chief, to dismiss the
petition as relates to Citation No. 80420. The motion was thereupon granted
(Tr. 60-61).

134

M-3 is a ·copy of Citation No. 80422, April 4, 1978, 30 CFR 56.16-5.
M-3(a) is a copy of a modification of M-3.
M-3(b) is a copy of the inspector's statement pertaining to M-3.
M-4 is a copy of Citation No. 80423, April 4, 1978, 30 CFR 56.20-3.
M-4(a) is a copy of the inspector's statement pertaining to M-4.
M-5 is a copy of Citation No. 80424, April 4, 1978, 30 CFR 56.11-2.
M-5(a) is a copy of the termination of M-5.
M-5(b) is a copy of the inspector's statement pertaining to M-5.
M-6 is a copy of Citation No. 80425, April 4, 1978, 30 CFR 56.14-1.
M-6(a) is a copy of the inspector's statement pertaining to M-6.
M-7 is a copy of Citation No. 80426, April 4, 1978, 30 CFR 56.9-12.
M-7(a) is a copy of the inspector's statement pertaining to M-7.
2.

The Respondent introduced the following exhibits into evidence:

0-1. is a photograph pertaining to Citation No. 80425.
0-2 is a photograph pertaining to Citation No. 80424.
IV.

Issues

Two basic issues are involved in the assessment of a civil penalty:
(1) did a violation of the Act occur, and (2) what amount should be assessed
as a penalty if a violation is found to have occurred? In determining the
amount of civil penalty that should be assessed for a violation, the law
requires that six factors be consi4ered: (1) history of previous violations;
(2) appropriateness of the penalty to the size of the operator's business;
(3) whether the operator was negligent; (4) effect of the penalty on the
operator's ability to continue in business; (5) gravity of the violation;
and (6) the operator's good faith in attempting rapid abatement of the
violation.
V.

Opinion and Findings of Facts
A.

Stipulations

1. The Administrative Law Judge has jurisdiction of the abovecaptioned proceeding (Tr. 4).

135

2. Clyde H• Gilliam was an authorized representative of the Secretary
of Labor (Tr. 4).
3. The United Cement Company received copies of each of the subject
citations (Tr. 4).
4. The United Cement Company was served a copy of the complaint in the
above-captioned proceeding (Tr. 4).
5. The United Cement Company has been served all papers necessary for
appearances at the hearing (Tr. 4).
6.

There is no history of previous violations (Tr. 5-6).

7. The size of the Artesia Quarry & Plant is rated at approximately
250,000 man-hours per year (Tr. 7).
8. United Cement Company is a wholly-owned subsidiary of Texas
Industries (Tr. 7).
9. The size of Texas Industries' combined mining operations (sand,
gravel, cement and crushed stone) is rated at approximately 2 million manhours per year (Tr. 9-10).
10. The size of United Cement Company is rated at approximately
250,000 man-hours per year (Tr. 9-10).
11. The amount of the proposed penalties will not affect the United
Cement Company's ability to remain in business (Tr. 10).
B.

Occurrence of Violation, Negligence, Gravity and Good Faith

MSHA inspector Clyde H. Gilliam, issued the subject citations on
April 4, 1978, during an inspection of the Respondent's Artesia Quarry &
Plant (Tr. 14, Exhs. M-1, M-2, M-3, M-4, M.,...5, M-6, M-7). He was accompanied
on the inspection tour by Mr. Darrell Price (Tr. 15-16, 171). According to
Inspector Gilliam, Mr. Price was the general mill foreman (Tr. 15-16).
However, Mr. Price described himself as the production manager, but stated
that.his duties as production manager encompassed responsibility for safety
at the plant (Tr. 167).
The findings with respect to the individual citations are set forth as
follows:
1.

Citation No. 80421, April 4, 1978, 30 CFR 56.12-34

The mandatory standard embodied in 30.CFR 56.12-34 provides that
"[p]ortable extension lights, and other lights "that by their location present a shock or burn hazard, shall be guarded."

136

Inspector Gilliam cited the following "condition or practice" as violating the regulation: "Three light bulbs located approximately 7 feet
above the floor did not have a protective guard around them. Should a
worker with a metal bar be working below the light bulbs accidentally break
the glass, the filament could cause electrical shock" (Exh. M-2).
According to the inspector, the light bulbs were located in a structure
used as a conveyor belt transfer station (Tr. 63) that measured approximately
20 feet in length by 20 feet in width (Tr. 70). One of the bulbs was located
directly above the transfer point (Tr. 71-72). He testified that the lights
were approximately 7.feet above the floor, but indicated that it could have
been less (Tr. 69). He did not measure the height, but estimated it visually
(Tr. 72). Mr. Price testified that the company measured the height and determined that it was less than 7 feet (Tr. 184).
The 7-foot figure, standing alone, would not be significant absent the
so-called "7-foot rule" agreed upon amongst the inspectors during their
meetings (Tr. 72-73). By Inspector Gilliam's own admission, 7 feet is "not
in the law." He stated that "we" presumably the inspectors, "have to set
some arbitrary figure," and indicated that 7 feet "is common sense." (Tr.
72). He stated that the "7-foot rule" is not applicable throughout the
nation because "Washington would put out something to that effect and we
have never seen nothing to that effect" (Tr. 73). Apparently, the "requirement" was devised after an individual in Georgia, employed by Vulcan
Materials, was electrocuted when a bulb broke and his sweaty arm touched the
two electrodes. According to the inspector:
A. Since that time we have made it a point to put guards
around light bulbs where it's possible that a man may have a
rod in his hands or moving, say around 7-feet or less, where
the light bulbs could be broken, and catch the two electrodes.
(Tr. 64).
The testimony of Inspector Gilliam, the description of the "condition or
practice" contained in the citation and the comments contained in the document known as the inspector's statement reveal that the possibility of a
worker receiving an electrical shock was the sole hazard that the inspector
associated with the condition (Exhs. M-2, M-2(b),"Tr. 64-66). Neither the
documents nor his testimony a·ssociate a burn hazard with the condition.
According to the inspector, a metal object being carried by a worker
could accidentally strike the bulb, break the glass and make contact with
the filaments (Exh. M-2, Tr. 64-65). A sweaty individual could thus be
electrocuted, while a dry individual could sustain a shock (Tr. 66).
The testimony as to the derivation of the "7-foot rule," when viewed in
the light most favorable to the Petitioner, and the testimony as to the
hazard posed by the three unguarded light bulbs, when taken alone and without

137

regard to the nature of the work actually performed in the transfer station,
sets forth a plausible basis for finding a violation. However, the question
as to whether the regulation has been violated can only be answered by
giving due consideration to all of the evidence adduced. It is only through
an appraisal of the nature of the actual work performed in the transfer stat ion that a determination can be made as to whether the location of the
lights presented a shock hazard to the workers within the meaning of the
regulation. ];/
According to the inspector, employees are not assigned to the transfer
station on a continuous basis, but work there periodically to perform repair
and maintenance functions (Tr. 63, 65, 73). It is not a regular work station, but merely houses some equipment (Tr. 70-71). The inspector stated
that the area is visited by workers to remove blockages from the chute
(Tr. 65). Pieces of wood or metal were identified as the possible obstructions (Tr. 75-76). He testified that removal of a blockage would definitely
require the use of metal rods approximately 1 inch in diameter and 6 feet in
length (Tr. 65, 71). The inspector stated that an individual wielding such a
tool could accidentally shatte~ the bulb with the rod (Tr. 65), and achieve
contact with the exposed filaments. It was the fear of this type of accident that cause him to issue the citation (Tr. 73-74). However, he admitted
that he did not see anyone working in the area, that he could not recall
seeing any metal bars in the transfer station (Tr. 71), and that he did not
see anyone with a metal bar entering the room (Tr. 74).
2/ At the close of MSHA 1 s case-in-chief, the Respondent moved to dismiss
the petition as relates to Citation No. 80421 on two grounds: First,
counsel for the Respondent argued that no evidence had been presented to
establish that any employee had ever used any type of metal bar in the
transfer station. Second, the Respondent argued that the so-called "7 foot
rule" was arrived at arbitrarily and that operators cannot be bound by
unwritten requirements.
However, the evidence contained in the record at the time the motion
was made established a prima facie case as to the alleged violation and was
sufficient to withstand a motion to dismiss. The inspector testified as an
expert witness that a metal rod, approximately 6 feet in length and 1 inch
in diameter, would be required to remove a blockage from the chute at the
transfer point. The existence of such expert testimony supported the inference that unguarded light bulbs located approximately 7 feet above the floor
presented a shock hazard. On the basis of this, it was immaterial that an
informal "7-foot rule" happened to exist because reliance on it was unnecessary to sustain the finding of a violation. Additionally, the fact that the
inspector testified as an expert witness was sufficient at that stage of the
case to support an unrebutted opinion that a metal rod of the specified
dimensions would be needed to alleviate a blockage.
Accordingly, based on the evidence in the 'record when the motion was
made, the Respondent's motion to dismiss is DENIED.

138

The sole evidence as to how blockages are actually removed from the
chute was provided by Mr. Price, who testified that a blockage would normally
be one floor above the level on which the subject light bulbs are located
and that picks and shovels would be used to alleviate the blockage (Tr. 178).
Thus, the sum total of all the evidence fails to establish that
employees were exposed tq an electrical shock hazard of the type alleged
in the citation because there was no proof that employees used metal objects
in the cited area to remove chute blockages.
Accordingly, I find that the evidence fails to establish a violation of
30 CFR 56.12-34 by a preponderance of the evidence.
2.

Citation No. 80422, April 4, 1978, 30 CFR 56.16-5
a.

Occurrence of Violation

The mandatory standard codified at 30 CFR 56.16-5 provides: "Mandatory.
Compressed and liquid gas cylinders shall be secured in a safe manner."
Inspector Gilliam cited the following condition as a violation of the standard: "The oxygen cylinder located in the welding area of the shop was not
secured in an upright position by a chain, rope or other means" (Exh. M-3).
The inspector testified that the unsecured cylinder was full of oxygen,
and testified as an expert that the pressure inside was approximately 2,000
pounds (Tr. 81). The Respondent offered no rebuttal evidence on this point.
The question of whether a violation occurred is simplified by the
Respondent's ad~ission that the cylinder was not secured, but that it should
have been secured (Tr. 87).
Accordingly, it is found that a violation of 30 CFR 56.16-5 has been
established by a preponderance of the evidence.
b.

Negligence of the Operator.

The area in which the violation was observed.was classified as a big
storage area containing many oxygen cylinders (Tr. 88). Only one of the
cylinders was unsecured (Tr. 88). Facilities were provided for tying down
the cylinders (Tr. 88), although the witnesses differed as to the type of
facilities provided. Inspector Gilliam testified that chains were provided
(Tr. 83), while Mr. Price testified that ropes were provided (Tr. 178). The
differences in their testimony on this point are immaterial, because both
agree that adequate facilities were provide~.
The inferences drawn from Inspector Gilliam's testimony indicate that
it is more probable than not that an employee had been using the oxygen
cylinder, but had replaced it in its proper location without securing it
(Tr. 83). The inspector made a general observation to the effect that
employees wiJl often leave a cylinder unsecured with the intention of using
it again within approximately the next 30 minutes (Tr. 88). However, this

139

general observation is of no assistance in the instant case because _the
record does not contain any indication as to precisely why the cylinder was
not secured.
According to Mr. Price, all employees had been instructed to secure
the cylinders (Tr. 178). That this requirement was enforced effectively
by the Respondent is attested to by the inspector's interpretation of his
own observations as confirming that the Respondent enforced its safety rules
(Tr. 91-92). Thus, the evidence in the record is inadequate to establish
that the violation was anything other than an isolated occurrence.
Although the inspector testified that the unsecured cylinder was sufficiently conspicuous so as to be observable to an employee working in the area
(Tr. 84), the evidence fails to establish that the Respondent or any of the
Respondent' s supervisory personnel knew or should have known of the condition. There is no indication that the Respondent had actual knowledge of
the condition because. the inspector did not know whether the operator;
Mr. Price or a foreman actually observed the unsecured cylinder prior to the
issuance of the citation (Tr. 90). The sole basis for imputing constructive
knowledge to the Respondent is the inspector's statement that a foreman in
the area would have known about the condition had it existed for 5 minutes
(Tr. 89). However, he admitted not only that it could have existed for
substantially less than 5 minutes (Tr. 89-90), but also that it was possible
that the foreman was unaware of it (Tr. 89).
Therefore, the evidence is insufficient to establish anything other than
the fact that the violation was an isolated occurrence of which the Respondent neither knew nor should have known.
Accordingly, it is found that the Petitioner has failed to establish
operator negligence by a preponderance of the evidence.
c.

Gravity of the Violation

The unsecured cylinder posed a danger of falling over and hitting the
concrete floor, thus damaging the brass, hand-operated valve and causing an
oxygen leak (Exh. M-3(b), Tr. 82, 85). The inspector classified an occurrence as probable and noted that one person was exposed to the hazard (Exh •.
M-3(b)).
The inspector's testimony points to an anticipated fatality as a result
of a gas leakage providing sufficient thrust to propel the cylinder as a
missile through the walls of the metal building (Tr. 81-84, 85).
Accordingly, it is found that an extremely serious degree of gravity
has been established.
d.

Good Faith in Attempting Rapid Abatement

The citation was issued at 11 a.m. on April 4, 1978, (Exhs. M-3, M-3(a),
Tr. 81). Although the citation was not terminated until 3 p.m. the same day,

140

i.e., 4 hours after issuance, the inspector testified that the condition was
abated immediately (Tr. 85-86, 88). In fact, both his· testimony and the
inspector's statement reveal that the Respondent took extraordinary steps to
gain compliance (Tr. 88-89, Exh. M-3(b)).
Accordingly, it is found that the Respondent demonstrated good faith in
attempting rapid abatement of the violation.
3.

Citation No. 80423, April 4, 1978, 30 CFR 56.20-3
a.

Occurrence of Violation

The mandatory standard codified at 30/CFR 56.20-3 provides, in part, as
follows: "Mandatory. At all mining operations: (a) Workplaces, passageways,
storerooms and service rooms shall be kept clean and orderly." Inspector
Gilliam cited the following condition as violating the mandatory standard:
"There was loose paper, conduit, empty wire reel and a gallon glass jug in
the floor and walkway of the electrical control room for the electro-static
precipitator" (Exh. M-4).
The control room was approximately 14 feet long and 7 feet wide (Tr.
171). The inspector testified that it was not a work area (Tr. 107), the
inference being that it was frequented periodically by employees recording
the readings from the instrument panels (Tr. 102). No one was in the control
room when the examination was made (Tr. 102).
According to the inspector, all of the debris was in front of the control panel (Tr. 106). He testified that the wire reel was 36 inches in
diameter (Tr. 106), and 12 to 15 inches in height (Tr. 109). It was composed of wood (Tr. 106). The piece of conduit was composed of metal (Tr.
112), and, to the best of his recollection, was approximately 24 to 36 inches
in length. The paper volume consisted of 12 to 18 sandwich bags and approximately 6 pieces of newspaper (Tr. 112). Based on these observations, the
inspector deduced both that electrical work had been performed in the area
(Tr. 111), and that employees had been using the control room as a lunch
room (Tr. 113).
Although Mr. Price classified the area as sloppy by company standards
(Tr. 172), his testimony differs from the inspector as to both the volume of
refuse present and potential safety hazard arising from it. According to
Mr. Price, a glass jug, a brown paper bag, a Frito bag and a Coke can were
present (Tr. 172). He recalled the piece of metal conduit as being approximately 6 to 8 feet in length and leaning in a corner of the room (Tr. 172),
not lying in front of the control panel. He recalled the reel as being
approximately 6 to 8 inches in diameter and 8 to 12 inches in length (Tr.
172), which would make it much smaller thari the inspector's recollection
would indicate.
The resolution of this conflict in the testimony of the witnesses can be
only by assessing their credibility. Although both witnesses

a~complished

141

were completely· honest and forthright in their testimony, the inspector's
memory, in light of all the evidence, appears more acc.urate. Accordingly, I
find that Inspector Gilliam's recollection of the nature, composition, extent
and location of the refuse in the control room accurately reflects the conditions existing on April 4, 1978. Thus, it is found that the control room was
was not being kept clean and orderly as required by 30 CFR 56.20-3.
Accordingly, it is found that a violation of 30 CFR 56.20-3 has been
established by a preponderance of the evidence.
b.

Negligence of the Operator

Although the inspector testified that the condition would be obvious to
a foreman entering the area, he did not know whether a foreman actually saw
it (Tr. 107-108). He had no actual knowledge as to when the debris was
placed in the room (Tr. 108), an admission with particular significance as
to the Respondent's actual or constructive knowledge of the presence of the
sandwich bags, newspaper and glass jug. Since the conditions were observed
at 1:20 p.m., i.e., shortly after the employees' lunch period (Tr. 108),
there is a substantial basis for the inference that those materials had not
been present for a sufficient period of time for a foreman to have observed
them. In fact, the inspector testified that there was nothing upon which to
base an opinion as to operator negligence except the presence of the reel
and the conduit (Tr. 110-111). The presence of these two articles dictates
the common sense conclusion that people had been working in the area (Tr.
110-111).
However, it is found that the evidence indicates a very minor degree of
negligence.
c.

Gravity of the Violation

Gravity must be assessed with reference to both the potential tripping
hazards and the potential fire hazard posed by the refuse.
The inspector testified that it was unlikely that a person would trip
over the reel, but noted that the conduit posed more of a hazard (Tr. 109,
112). The feared injuries, at most, ranged from a sprained ankle to a
sprained back (Tr. 101, 103). A back sprain could result in lost workdays
(Tr. 103).
No ignition sources were present on the front of the electrical panel,
but an ignition source would be presented by a blown cable on the back of
the panel (Tr. 113). However, the inspector could not recall any bare cables
(Tr. 113).
Both the inspector's statement (Exh. ~-4(a)) and the testimony reveal
that an occurrence was improbable (Tr. 109), that the injury resulting from
the violation could most reasonably be expected to result in no lost workdays, and that one worker was exposed to the hazard.

142

Accordingly, it is found that the violation was accompanied by moderate
gravity.
d.

Good Faith in Attempting Rapid Abatement

The Respondent abated the condition in the 40 minutes allotted (Exh.
M-4, Tr. 103-104). In fact, the inspector begrudgingly admitted that the
Respondent took extraordinary steps to gain compliance (Tr. 109).
Accordingly, it .is found that the Respondent demonstrated good faith
by attempting rapid abatement of the viola~ion.
4.

Citation No. 80424, April 4, 1978, 30 CFR 56.11-2
a.

Occurrence of Violation

30 CFR 56.11-2 provides: "Mandatory. Crossovers, elevated walkways,
elevated ramps, and stairways shall be of substantial construction provided
with handrails, and maintained in good condition. Where necessary, .toeboards
shall be provided."
Inspector Gilliam cited the following condition as violating the mandatory standard: "There was no handrails around the platform nor on the steps
at the kiln oxygen analyzer station. The platform was approximately
30 inches-above the ground. A worker will visit this station once each
shift" (Exh. M-5).
The kiln oxygen analyzer station was described as a small, isolated
building atop a raised platform (Tr. 119).
The platform, more accurately characterized as an elevated walkway, was
located outside the building. It was approximately 5 to 6 feet in width
and approximately 15 feet in length (Tr. 115). It was reached by climbing
four steps (Exh. 0-2).
The fact that the platform was elevated approximately 30 inches above
the ground, in conjunction with the fact that it provided access to the
station, renders it an elevat.ed walkway within the meaning of the subject
regulation. ]_/
3/ In this regard, the existence or nonexistence of the so-called "30-inch
regional rule" (Tr. 123-125, 172-173), is immaterial to the finding of a
violation. It is unnecessary to decide, assuming that such a rule had been
developed informally amongst the inspectors, whether all walkways 30 inches
above the ground require handrails per se. In the instant case, reliance
on such an informal rule is unnecessary to find a violation because the
height of the platform and the nature of its use dictate that handrails
should have been present.
Additionally, the fact that toeboards were not provided (Tr. 117, 130)
is immaterial since their absence is not alleged in the citation.

143

Accordingly, ·it is found that a preponderance of the evidence establishes that the Respondent violated 30 CFR 56.11-2 in that neither the
elevated walkway nor the stairway were provided with handrails.
b.

Negligence of the Operator

The Respondent's position with respect to operator negligence centers
around the Respondent's alleged compliance with Occupational Safety and
Health Administration (OSHA) regulations. According to the Respondent, the
fact that the plant was constructed according to OSHA specifications demonstrates a lack of operator negligence. (Respondent's Brief, p. 6) (see also,
Tr. 173, 183). I am in partial agreement with the tenor of the Respondent's
argument, but I am unable to accept the implication that compliance with
those standards, at the time the plant was constructed, necessarily requires
a per se finding that negligence was not present. The controlling considerations when such a defense is raised are: (1) whether the subject area
complied with the OSHA regulations at the time of construction, and (2) the
amount of time intervening between the termination of OSHA inspections and
the inspection by a Federal mine inspector giving rise to the subject citation. For purposes of the instant case, it is important to bear in mind
that an absence of handrails was present on both the elevated walkway and
the stairway.
The plant was completed by March of 1974 (Tr. 167). The OSHA standards
in effect at that time pertaining to handrails around walkways and stairways,
29 CFR 1910.23(c) and 1910.23(d) (1973), provided:
(c) Protection of open-sided floors, platforms, and
runways. (1) Every open-sided floor or platform 4 feet or
more above adjacent floor or ground level shall be guarded by
a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except
where there is entrance to a ramp, stairway, or fixed ladder.
The railing shall be provided with a toeboard wherever,
beneath the open sides,
(i)

Persons can pass,

(ii)

There is moving machinery, or

(iii) There is equipment with which falling
materials could create a hazard.
(2) Every runway shall be guarded by a standard railing
(or the equivalent as specified in paragraph (e)(3) of this
section) on all open sides 4 feet or more above floor or
ground level. Wherever tools, machine parts, or materials
are likely to be used on the runway, a toeboard shall also be
provided on each exposed side.

144

Runways used exclusively for special purposes {such as oiling,
shafting, or filling tank cars) may have the railing on one
side omitted where operating conditions necessitate such
omission, providing the falling hazard is minimized by using
a runway of not less than 18 inches wide. Where persons
entering upon runways become thereby exposed to machinery,
electrical equipment, or other danger not a falling hazard,
additional guarding than is here specified may be essential
for protection.
(3) Regardless of height, open-sided floors, walkways,
platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and
similar hazards shall be guarded with a standard railing and
toe board.
(d) Stairway railings and guards. (1) Every flight
of stairs having four or more risers shall be equipped
with standard stair railings or standard handrails as
specified in subdivisions (i) through (v) of this subparagraph, the width of the stair to be measured clear of all
obstructions except handrails:
(i) On stairways less than 44 inches wide having both
sides enclosed, at least one handrail, preferably on the
right side descending.
(ii) On stairways less than 44 inches wide having one
side open, at least one stair railing on open side.
(iii) On stairways less than 44 inches wide having both
sides open, one stair railing on each side.
(iv) On stairways more than 44 inches wide but less
than 88 inches wide, one handrail on each enclosed side and
one stair railing on each open side.
(v) On stairways 88 or more inches wide, one handrail
on each enclosed side, one stair railing on each open side,
and one intermediate stair railing located approximately
midway of the width.
(2) Winding stairs shall be equipped with a handrail
offset to prevent walking on all portions of the treads
having width less than 6 inches. [Emphasis added.]
In addition to the foregoing, the regulations prescribing the construction characteristics of fixed industrial stairs required standard railings
"on the open sides of all exposed stairways and stair platforms." 29 CFR
1910.24{h) (1973) (emphasis added). Under 29 CFR 1910.24{b) (1973):

145

Fixed stairs shall be provided for access from one structure
level to another where operations necessitate regular travel
between levels, and for access to operating platforms at any
equipment which requires attention routinely during operations. Fixed stairs shall also be provided where access to
elevations is daily or at each shift for such purposes as
gauging, inspection, regular maintenance, etc., where such
work may expose employees to acids, caustics, gases, or other
harmful substances, or for which purposes the carrying of
tools or equipment by hand is normally required. • • •
As relates to the elevated walkway, the salient provisions of the abovequoted regulation are those requiring railings 4/ around runways 5/ and open
sided floors or platforms 6/ 4 feet or more above floor or ground-level. It
will be recalled that the elevated walkway in the instant case was 30 inches
above ground level.
As relates to stairways, the above-quoted regulations require standard
stair railings or standard handrails for every flight of stairs having four
!!.._/

29 CFR 1910.21 (1973), sets forth the following definitions:
"(a) As used in § 1910.23, unless the context requires otherwise, floor
and wall opening, rail~ng and toe board terms shall have the meanings
ascribed in this paragraph.

*(3)

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

*

Handrail. A single bar or pipe supported on brackets from a wall
.or partition, as on a stairway or ramp, to furnish persons with a handhold
in case of tripping.
Standard railing. A vertical barrier erected along exposed edges
of a floor opening, wall opening, ramp, platform, or runway to prevent falls
of persons.
(6)

Stair railing. A vertical barrier erected along exposed sides of a
stairway to prevent falls of persons."
5/ The term "runway," as used in 29 CFR 1910.23 (1973), is defined at 29 CFR
l910.2l(a)(5) (1973), which provides the following:
"Runway. A passageway for persons, elevated above the surrounding floor
or ground level, such as a footwalk along shafting or a walkway between
buildings."
6/ The term "platform," as used in 29 CFR 1910.23 (1973), is defined at
Z9 CFR 1910.2l(a)(4) (1973), which provides the following:
"Platform. A working space for persons, elevated above the surrounding
floor or ground; such as a balcony or platform for the operation of machinery
and equipment."
(8)

146

or more risers, ]_/ and, as relates to industrial stairs, on the open sides
of all exposed stairways and stair platforms. In the instant case, neither
standard was complied with.
These standards remained in effect after the termination of OSHA inspections in 1975 (Tr. 183-184). 29 CFR 1910.23(c). and 1910.23(d), 1910.24(b)
and 1910.24(h) (1975).
Based on the foregoing, I conclude that the.elevated walkway complied
with the OSHA regulations in effect both when the plant was completed in 1974
and when OSHA inspections of the plant ceased in 1975. Although permitting
this condition to exist during the approximate 3-year time period between
1975 and 1978 would ordinarly constitute gross negligence, the reliance on
the previously applicable OSHA requirements during that time period, under
the facts presented herein, is sufficient to reduce the degree of negligence
demonstrated by ~he Respondent. Accordingly, it is found that the Respondent
demonstrated a high degree of ordinary negligence by failing to provide
handrails around the elevated platform.
The stairway, however, presents a different problem because it did not
comply with the OSHA requirements either in 1974 or at any time subsequent
thereto. Therefore, permitting the condition to exist between 1975 and 1978
constituted gross negligence.
c.

Gravity of the Violation

The fact that the walkway was exposed to the elements indicates that
rain or other weather conditions could render it slick ( Tr. 116). Logically, the same consideration applies to· the stairway.
According to the inspector, an individual could back off the
walkway, fall 30 inches to the ground and sustain back injuries (Tr.
114-115). However, the inspector classified an occurrence as improbable (Tr. 126, Exh. M-5(b)), noting that how a person fell would
determine whether an injury would be sustained (Tr. 125-126). One
person would have been exposed to the hazard (Exhs. M-5, M-5(b),
Tr. 114).
fn. 7 (continued)
7/ The regulations contain no definition of the term "riser" applicable to
29 CFR 1910.23 (1973). Guidance as to its meaning under that section is provided by 29 CFR 1910.2l(b)(7) (1973), which provides the following:
"(b) As used in § 1910.24, unless the context requires otherwise,
fixed industrial stair terms shall have the meaning ascribed in this
paragraph."

*(7)

*

*

*

*

*

*

Riser. The upright member of a step situated at the back
of a lower tread and near the leading edge of the next higher tread."

147

Accordingly, it is found that moderate gravity was associated with the
violation.
d.

Good Faith in Attempting Rapid Abatement

Inspector Gilliam allotted the Respondent 1 day to abate the condition
(Tr.· 118-119, Exh. M-5). According to Mr. Price, the installation of handrails commenced immediately and was completed the next day (Tr. 174). The
citation was terminated when the inspector returned on April 11, 1978 (Tr.
120, Exh. M-5(a)).
Accordingly, it is found that the Respondent demonstrated good faith
by attempting rapid abatement of the violation.
5.

Citation No. 80425, April 4, 1978, 30 CFR 56.14-1
a. Occurrence of Violation

30 CFR 56.14-1 provides: "Mandatory. Gears; sprockets; chains; drive,
head, tail, and takeup pulleys; flywheels; couplings; shafts; sawblades; fan
inlets; and similar exposed moving machine parts which may be contacted by
persons, and which may cause injury to persons, shall be guarded."
Inspector Gilliam cited the following condition as violating the standard: "A guard was not installed around the rotating line shaft of the fan
for the dust collector located in the bag house. A worker probably walked
by the rotating shaft once during a shift" (Exh. M-6).
The Respondent does not contend that a guard was present on the drive
shaft. Indeed, it contends in its answer that the condition existed in an
isolated area with no employee exposure. Accordingly, it is found that the
conditions described in the citation existed as alleged.
In view of the wording of the regulation it must be concluded that
exposed moving shafts must be guarded if they may be contacted by persons
and cause injury to such persons.
As set forth in Part V(B)(5)(c), infra, addressing gravity, the rotating
line shaft could have been contacted by and caused injury to employees of the
Respondent.
Accordingly, I conclude that the condition set forth in the citation
constituted a violation of 30 CFR 56.14-1.
b.

Negligence of the Operator

According to the inspector, anyone operating the equipment or working
in the area should have observed the violation .(Tr. 136). Although there is
no indication as to precisely how long the Respondent had permitted the
condition to exist, it can be inferred that the condition had existed since
the plant was built.

148

Mr. Price did, however, state that throughout the plant numerous covers
had been placed on pulleys, sprockets and shafts, although he did not know
why a cover had not been placed on the subject shaft (Tr. 176). In fact, the
chain drive adjacent to the subject shaft was guarded (Tr. 138-140, 177).
Inferences drawn from this testimony indicate that at some point in time the
Respondent undertook to provide guards for all exposed moving machine parts,
but that, for some unexplained reason, the subject shaft was not provided
with a guard. Accordingly, I find that the Respondent demonstrated a high
degree of ordinary negligence.
c.

Gravity of the Violation

The line shaft was mounted between two pillar blocks (Tr. 133, Exh.
0-1), and was between 20 to 24 inches above the floor (Tr. 134, 184). The
inspector estimated that the sha~t rotated at 1,800 revolutions per minute
and believed, based on experience, that the machine was powered by a
IO-horsepower motor (Tr. 136, 147). Alamite fittings were present on each
pillar block to permit lubrication (Tr. 147). According to the inspector,
the shaft was accessible to all personnel walking in the area (Tr. 134).
The inspector indicated that a guard would prevent loose clothing from
becoming wound around the rotating shaft (Tr. 133, 148), although he testified that for this to occur a burr would have to be present on the shaft
(Tr. 136). There is no indication that a burr was present. Although he
indicated that workers walking by the shaft were exposed to the hazard (Tr.
133), both the testimony and the inspector's statement reveal that the worker
directly exposed to the hazard would be the one lubricating the bearings
inside the pillar blocks (Exh. M-6(a), Tr. 140, 147). However, the testimony
of Mr. ·Price reveals an employee would not be required to climb over any
obstacles in order to reach the alamite fittings (Tr. 185). It is significant to note that the Respondent permitted lubrication of the equipment
without requiring its employees to lock out the equipment (Tr. 176), a practice that could greatly facilitate injuries caused by accidentally_starting
the machinery.
Since an accident could result in the loss of a limb, the inspector
classified the potential injury as permanently disabling (Exh. M-6(a), Tr.
136-137). However, he classHied an occurrence as improbable (Exh. M-6(a)).
Accordingly, it is found that a high level of gravity was associated
with the violation.
d.

Good Faith in Attempting Rapid Abatement

The Respondent immediately commenced fabricating a guard following the
issuance of the c·itation (Tr. 135, 176). Although the inspector gave the
Respondent 1 day to abate the violation (Exh. M-6, Tr. 135), the guard was
in place, and thus the violation was abated in 1-1/2 hours (Exh. M-6, Tr.
135-136).

149

Accordingly, it is found that the Respondent demonstrated good faith
in attempting rapid abatement.
6.

Citation No. 80426, April 4, 1978, 30 CFR 56.9-12
a.

Occurrence of Violation

This citation was issued when Inspector Gilliam observed several pieces
of refuse on the floor inside the cab of a water truck (Exh. M-7, Tr. 155,
158). The citation (Exh. M-7) describes the condition as follows: "There
~as loose papers and 2 Coke cans in the floor of the water truck cab.
The
Coke cans can roll under the brake pedal and prevent the operator from
applying the brakes."
The cited standard, 30 CFR 56.9-12, provides: "Mandatory.
mobile equipment shall be kept free of extraneous materials."

Cabs of

The inspector's testimony dealt mainly with the presence of the two
Coca Cola cans (Tr. 155-166). Mr. Price confirmed the presence of the two
cans in the truck (Tr. 183).
Accordingly, it is found that a violation of 30 CFR 56.9-12 has been
established by a preponderance of the evidence in that extraneous material
in the form of two Coca Cola cans were present on the floor of the water
truck's cab.
b.

Negligence of the Operator

As relates to actual knowledge of the violation, Inspector Gilliam
admitted that he did not know whether the Respondent knew of the condition
(Tr. 160). The truck was stationary and nobody was in the cab (Tr. 158,
161). In fact, the inspector testified that i t would be difficult for the
Respondent to check each truck every time the driver got out (Tr. 160).
Mr. Price did not know that the cans were present in the truck (Tr. 179).
The inspector's testimony indicates that in order to charge the Respondent with constructive knowledge, the Respondent would have to issue instructions to the drivers to keep the floorboards clear of such refuse and conduct
spot inspections to assure that the instructions were being followed (Tr.
157). He admitted, however, that the gespondent would have to rely, to a
certain degree, on the drivers following the instructions (Tr. 157).
According to Mr. Price, all drivers had been instructed to keep all cabs
free of debris (Tr. 179). Both Mr. Price and his supervisor conducted spot
checks of the cabs (Tr. 179), presumably to assure that the instructions
were being followed. The fact that at least five trucks were on the premises
and that only the subject truck had rolling mater.ial on the floorboard (Tr.
159), tends to support the proposition that: the Respondent effectively
enforced its rule relating to debris in truck cabs.
Accordingly, it is found that the Petitioner has failed to establish
negligence by a preponderance of the evid~nce.

150

c.

Gravity of the Violation

The inspector did not recall whether there was a hump in the floorboard
or whether the cans were on the driver's side or the passenger's side of the
cab (Tr. 155-156). However, he recounted an incident in which an unnamed
individual, presumably working for some unidentified company, was killed when
a bottle rolled under his brake pedal, preventing him from applying his
brakes (Tr. 156).
The "rolling bottle" example is not very material to the gravity of
the violation in the instant case because an aluminum Coca Cola can is
malleablei (Tr. 156), whereas a glass bottle is not. The fact that the ends
of a Coco Cola can are stiff (Tr. 156), does not, standing alone, establish
that one or two mashed cans present a significant safety hazard of the type
envisioned by the inspector (Exhs. M-7, M-7(a)). This is especially true
in light of the fact that the cans were under the seat (Tr. 160) and that
it was not established that they could roll .under the brake.
Of greater significance is the fact that the truck was stationary with
nobody in the cab when the violation was cited (Tr. 158, 161). The inspector never saw the truck move and did not know whether it had been operated
with the Coke cans inside of it (Tr. 161-162).
In light of this, I am unable to accept the inspector's estimate that
the occurrence of an accident was probable (Exh. M-7(a)). Based on all the
facts, I must conclude that an occurrence was highly improbable. If, however, an accident did occur, one worker would have been exposed to the
hazard and the resulti~g injury would most reasonably be expected to result
in lost workdays or restricted duty (Exh. M-7(a)).
Accordingly, I find that de minimis gravity was associated with the
violation.
d.

Good Faith in Attempting Rapid Abatement

The inspector gave the Respondent 15 minutes to abate the violation,
and abatement was accomplished within the prescribed time period (Exh. M-7,
Tr. 163).
Accordingly, it is found that the Respondent demonstrated good faith
in attempting rapid abatement. '
C.

History of Previous Violations

The Respondent has no history of previous violations (Tr. 5-6).
D.

Size of the Operator's Business

The United Cement Company is a wholly-owned subsidiary of Texas
Industries (Tr. 7). The size of Texas Industries' combined mining operations (sand, gra¥el, cement and crushed stone) is rated at approximately

151

2 million man-hours per year (Tr. 9-10). The size of United Cement Company
is rated at approximately 250,000 man-hours per year (Tr. 9-10). The size
of the Artesia Quarry & Plant is rated at approximately 250,000 man-hours
per year (Tr. 7).
E~

Effect of Penalty on Operator's Ability to
Continue in Business

The parties entered into a stipulation that the amount of the proposed
penalties will not affect the United Cement Company's ability to remain in
business (Tr. 10). Any penalty proposal computed by the Office of Assessments is immaterial to the issues presented herein because civil penalty
proceedings are de novo proceedings. The amount of the penalty is determined
by the Judge solely with reference to the six statutory criteria contained
in section 110 of the Act. In this regard, it has long been recognized that
the Judge is empowered to assess penalties greater than those proposed by the
Office of Assessments. Gay Coal Inc., 7 IBMA 245, 84 I.D. 99, 1977-1978
OSHD par. 21,662 (1977); Old Ben Coal Company, 4 IBMA 198, 82 I.D. 277,
1974-1975 OSHD par. 19,723 (1975); Bµffalo Mining Company, 2 IBMA 226,
80 I.D. 630, 1973-1974 OSHD par. 16,618 (1973); 29 CFR 2700.27(c) (1978).
However, the Interior Board of Mine Operations Appeals (Board) has held
that evidence relating to whether a penalty will affect the ability of the
operator to stay in business is within the operator's control, and therefore,
there is a presumption that the operator will not be so affected. Hall Coal
Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (1972). I find
therefore, that penalties otherwise properly assessed in this proceeding will
not impair the operator's ability to continue in business.
VI. . Conclusions of Law
1. United Cement Company and its Artesia Quarry & Plant have been subject to the provisions of the Federal Mine Safety and Health Act of 1977 at
all times relevant to this proceeding.
2. Under the Act, the Administrative Law Judge has jurisdiction over
the subject matter of, and the parties to, this proceeding.
3. Former MSHA inspector Clyde H. Gilliam was a duly authorized representative of the Secretary of Labor at all time~ relevant to this proceeding.
4. The violations charged in Citation Nos. 80422 through 80426 are
found to have occurred as set forth in Part V, supra.
5. The Petitioner has failed to establish the violation charged in
Citation No. 80421 by a preponderance of the evidence.
6. All of the conclusions of law set forth in Part V, supra, are
reaffirmed and incorporated herein.

152

VII.

Proposed Fingings of Fact and Conclusions of Law

The Respondent filed a posthearing brief, the Petitioner did not. Such
brief, insofar as it can be considered to have contained proposed findings
and conclusions, has been considered fully, and except to the extent that
such findings and conclusions have been expressly or impliedly affirmed in
this decision, they are rejected on the grounds that they are, in whole or
in part, contrary to the facts and law or because they are immaterial to
the decision in this case.
VIII.

Penalty Assessment

Upon consideration of the entire record in these cases and the foregoing findings of fact and conclusions of law, I find that the assessment
of a penalty is warranted as follows:
Citation No.

Date

30 CFR
Standard

80422
80423
80424
80425
80426

4/4/78
4/4/78
4/4/78
4/ 4/78
4/4/78

56.16-5
56.20-3
56.ll-2
56.14-1
56.9-12

Penaltz
$ 75.00
40.00
150.00
100.00
25.00
$390.00

ORDER
Accordingly, the oral determination made at the hearing granting the
Petitioner's motion to dismiss the petition as relates to Citation No. 80420
is hereby REAFFIRMED, and the citation is herewith VACATED.
IT IS FURTHER ORDERED that the petition be DISMISSED as relates to
Citation No. 80421, and the citation is herewith VACATED.
IT IS FiURTHER ORDERED that the Respondent pay civil penalties in the
amount of $390 within 30 days of the date of this decision.

~r;;:::i

ohn F. Cook
Administrative Law Judge

153

Distribution:
Murray A. Battles, Esq., Office of the Solicitor, U.S. Department of
Labor, 1929-9th Avenue, South Birmingham, AL 35205
(Certified Mail)
Joe F. Canterbury, Jr., Esq., Smith, Smith, Dunlap & Canterbury,
4050 First National Bank Building, Dallas, TX 75202 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Standard Distribution

154

\

FEDERAL MINE SAFETY ~ND HEALTH REVIEW COMMISSION
\

OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

~MN

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

2 8 1980
Civil Penalty Proceeding
Docket No. PITT 79-200-P
A/O No. 36-02617-03003
Solar No. 5 Mine

SOLAR FUEL COMPANY,
Respondent
DECISION
.Appearances:

Before:
I.

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner;
Eugene E. Fike II, Esq., Somerset, Pennsylvania, for
Respondent.

Judge Cook

Procedural Background

On May 2, 1979, the Mine Safety and Health Administration (Petitioner)
filed a petition for assessment of civil penalty against Solar Fuel Company
(Respondent) in the above-captioned proceeding. This petition, filed pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C § 820(a) (1978) (1977 Mine Act), alleged two violations of the Code
of Federal Regulations. The Respondent filed its answer on May 11, 1979-.--

On August 27, 1979, the Petitioner filed a motion to amend the petition
for assessment of civil penalty as relates to Citation No. 4230, issued on
November 8, 1978, to allege a violation of 30 CFR 75.1712-3(a). The petition, as filed, had alleged a violation of 30 CFR 71.402(a). The Petitioner's motion was granted by an order issued on September 12, 1979.
Pursuant to notices issued on October 1, 1979, and October 10, 1979,
the hearing was conducted on October 31, 1979, in Somerset, Pennsylvania.
Representatives of both parties were present and participated.
At the beginning of the hearing, coun.sel for the Petitioner moved to
dismiss the petition for assessment of civil penalty as relates to

155

Citation No. 9903735, November 15, 1978, 30 CFR 70.250.
granted. (Tr. 4) !./

This motion was

The record was left open for the filing of exhibits by the Petitioner
as relates to the size of the operator's business and history of prior violations. Additionally, the Respondent was accorded time to file objections
and supplemental exhibits. The Petitioner filed these exhibits (Exhs. M-6,
M-6A) on December 17, 1979. The Respondent did not file objections or
supplemental exhibits. Exhibits M-6 and M-6A were received in evidence by
an order dated January 15, 1980.
'Ille parties waived the filing of briefs.
filed. 2/
II.

Accordingly, no briefs were

Violations Charged

'Ille petition for assessment of civil penalty, as amended, charges the
following violations of provisions of the Code of Federal Regulations:

III.

Citation No.

Date

30 CFR
Standard

4230
9903735

ll/8/78
ll/15/78

75.1712-3(a)
70.250

Evidence Contained in the Record
A.

Stipulations

During the course of the hearing, the parties entered into various
stipulations which are set forth in the findings of fact, infra.
1/ Counsel for the Petitioner advanced the following reasons in support
of the motion to dismiss:
"The Secretary has agreed to vacate the Citation No. 9,903,735 citing
violation 30 CFR 70.250A, I think it is-- .• 250. Basically this case involves
what we originally thought was a failure to submit valid dust samples. The
facts of this appear to have been that Operator's sample have been sent [sic]
in time with the regular mine cycle as required in 70.250. However, in submitting the data cards he inadvertently placed the same Social Security
number for two different men. At this point, after discussions between the
parties, we determined those factors do not constitute a violation 70.250
[sic] but would perhaps constitute a violation of 70.260 which is the transmISSion of sample section as opposed to the section requiring individual
samples once every nine days which were cited. For. those reasons the Secretary has decided, after that knowledge, the Petition will be dismissed"
(Tr. 4).
2/ In spite of the waiver, the parties were afforded 2 weeks in which to
reconsider their position (Tr. 93).

156

B.

Witnesses

1he Petitioner called as its witness Theodore R. Dues, an MSHA
inspector.
The Respondent called as its witnesses James L. Custer, the Respondent's manager of safety and health; and William R. Hutchinson, an employee
of the Respondent.
C.

Exhibits

1.

The Petitioner introduced the following exhibits in evidence:

M-1 is a copy of Citation No. 4230, issued on November 8, 1978,
originally issued alleging a violation of 30 CFR 71.402(a)
M-2 is a copy of the termination of M-1.
M-4 is a copy of the inspector's statement pertaining to M-1.
M-5 is a copy of a modification of M-1 to reflect a viola.tion of
30 CFR 75.1712-3(a).
M-5A is a modification of M-5.
M-6 is a computer printout compiled by th.e Office of Assessments
listing the history of· prior violations for which the Respondent had paid
assessments between November 9, 1976, and November 8, 1978.
M-6A is a copy of a controller information report.
2.

The Respondent introduced the following exhibit in evidence:

(}-16 is a document styled "Record of River and Climatological
Observations."
IV. Issues
Two basic issues are involved in the assessment of a civil penalty:
(1) did a violation of the 1977 Mine Act occur, and (2) what amount should
be assessed as a penalty if a violation is found to have occurred? In
determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of
previous violations; (2) appropriateness of the penalty to the size of
the operator's business; (3) whether the operator was negligent; (4)
effect of the penalty on the operator's ability to continue in business;
(5) gravity of the violation; and (6) the operator's good faith in
attempting rapid abatement of the violation.

157

v.

Opinion and Findings of Fact
A.

Stipulations

During the course of the hearing, the parties entered into the following
stipulations:
1. Solar Fuel Company owns and operates the Solar No. 5 Mine and
both are subject to the jurisdiction of the 1977 Mine Act (Tr. 4).
2. The Administrative Law Judge has jurisdiction over this proceeding
pursuant to section 105 of the 1977 Mine Act (Tr. 5).
3. Inspector Theodore R. Dues, who issued the subject Citation, was
a duly authorized representative of the Secretary of Labor at all times
relevant to the proceeding (Tr. 5).
4. The Solar No. 5 Mine produces an average of 80,000 tons of coal
annually (Tr. 5).
5.

Solar Fuel Company mines an average of 243,000 tons per year (Tr.

5).
6. The assessment of a civil penalty in this proceeding will not
affect the operator's ability to do business (Tr. 5).
B.

Occurrence of Violation

MSHA inspector Theodore R. Dues conducted a regular health and safety
quarterly inspection of the Respondent's Solar No. 5 Mine on November 8,
1978 (Tr. 13, Exh M-1). After leaving the mine office, the inspector
obtained his boots and coveralls from his car and proceeded to the change
room (Tr. 14). The change room was located in a trailer approximately
300 feet from where the men go to work (Exh. M-1, Tr. 26, 48). The evidence reveals that the change room facility was located in close proximity
to a belt used to haul coal from the mine (Tr. 78~79).
The inspector observed that the change room was not clean and orderly
(Tr. 14). He thereupon issued the subject citation at 9:15 a.m., describing
the conditions observed as follows:
1he bathing facilities, change room and sanitary flush toilet
facilities that were located in a trailer mobile home on the
surface was not being maintained in a clean and sanitary condition in that coal dust, spit on the wall, flush toilet not
clean and an odors [sic] in the shower and toilet facilities.
The petition for assessment of civil penalty, as amended, alleges that
the cited condition constitutes a violation of mandatory standard 30 CFR
75.1712-3{a), which provides that:

158

All bathing facilities, change rooms, and sanitary toilet
facilities shall be provided with adequate light, heat, and
ventilation so as to maintain a comfortable air temperature
and to minimize the accumulation of moisture and odors, and
such facilities shall be maintained in a clean and sanitary
condition.
According to the inspector, coal dust was on the sink, bathroom
facilities, bench, floor and lockers (Tr. 14-15). The best available evidence reveals that the coal dust on the floor was mixed with water. Some
of it was partially dry (Tr. 30, 34, 44,). The inspector observed a sufficient accumulation of coal dust on the bathroom sink to permit a person to
write his name in it (Tr. 15, 31-33). The inspector further testified that
tobacco or snuff spit was present at numero.us locations on the wall near the
benches (Tr. 14-15, 27-28). In addition, he testified that he detected the
odor of urine in the toilet area (Tr. 15, 22).
The Respondent's witnesses, Messrs. Custer and Hutchinson, recalled
observing several spots, described as discolorations, on the wall above the
trash receptacle. Although neither witness could positively identify the
composition of the spots, Mr. Hutchinson described their physical appearance
as "splatters" (Tr. 46., 81). Inspector Dues, during his rebuttal testimony, reasserted that the material was spit (Tr. 90-91). In light of the
inspector's positive identification, I find that spit was present on the
wall as described in his testimony during the Petitioner's case-in-chief.
The Respondent's witnesses attempted to establish the odor detected by
the inspector as emanating from the water supply and the soiled mine
clothing. According to the Respondent's witnesses, the water supply at
the mine contains sulphur, imparting to it a slight odor similar to that
of rotten eggs (Tr. 61-63, 80). In addition, Mr. Custer testified that
any odors present would be accentuated by the heat in the trailer (Tr. 63).
The inspector's rebuttal testimony convincingly establishes a urine odor
in the cited area. He was aware of the problem posed by the mineral content of the water and did not cite the Respondent for the stains on the
toilet and bathing facilities caused. by the sulphur. He reasserted that
he detected the odor of urine and testified that he did not detect the
"rotten egg smell" described by the Respo?dent's witnesses (Tr. 89-91).
Accordingly, I find that the conditions cited by the inspector constituted a violation of 30 CFR 75.1712-3(a). ~/
3/ The testimony establishing the presence of cigarette butts in the cited
area (Tr. 14-15) is not deemed material to the issue of whether a violation
occurred since they are not alleged in the petition for assessment of civil
penalty.

159

C.

Gravity of the Violation

1he inspector classified the violation as serious because of the
health hazard posed (Tr. 22-23), while Mr. Custer, a former MSHA inspector
(Tr. 63), did not believe the cited area to be in an unsanitary condition
(Tr. 64). However, it is significant to note, in assessing Mr. Custer's
testimony on this point, that he was unable to identify the composition of
the material on the wall and that he did not testify to detecting the odor
of urine.
The best available evidence indicates that no miners were in the cited
area when the inspector observed the condition, but that approximately 10
miners had been in the area shortly prior to his arrival (Tr. 16, 26-27,
47). No evidence was presented as to the probability of an occurrence.
Accordingly, I conclude that a slight amount of gravity was associated
with the violation.
D.

Negligence of the Operator

1he inspector's opinion that the condition had existed for over a week
(Tr. 16) was rebutted in part by the testimony of Mr. Hutchinson.
Mr. Hutchinson testified that he cleaned the cited area between 7 and 8 p.m.
on November 7, 1978, in accordance with his customary practice (Tr. 77-78).
The cleaning consisted of mopping, sweeping and wiping (Tr. 77). In addition, he testified that he cleaned the sink, bathing and toilet facilities.
However, there is evidence indicating that the cleaning job was less than
thorough (Tr. 78, 85). Specifically, he testified that he did not remove
the splatter marks observed by him from the wall (Tr. 85).
However, above and beyond this consideration, the record clearly
reveals that substantial coal dust accilmulations were a recurrent problem
in the area, and that this state of affairs should have been known by the
Respondent. According to Mr. Hutchinson, coal dust accumulates quickly in
the cited area due to its proximity to a belt leading from the mine to a
bin (Tr. 78-79). He further testified that an appreciable amount of coal
dust could have accumulated over a 6- to 12-hour ·period because "I could
clean it like tonight and tomorrow morning you could go in and write your
name in dust" (Tr. 81). The fact that the facility was used by one section foreman on each shift (Tr. 47) indicates that the Respondent should
have known of this recurrent problem.
Accordingly, I conclude that the Respondent demonstrated ordinary
negligence.
E.

Good Faith in Attempting Rapid Abatement

Abatement was accomplished in the time allotted by the inspector (Exhs.
M-1, M-2, M-5A). Accordingly, I conclude that the Respondent demonstrated
good faith in attempting rapid abatement.

160

F.

History of Previous Violations

lhe history of previous violations at the Solar No. 5 Mine for which
the Respondent had paid assessments between November 9, 1976, and November 8,
1978, is summarized as follows:.
Year 1
11/9/76 - 11/8/77

Year 2
11/9/77 ~ 11/8/78

Total

All Sections

9

10

19

75 .1712-3( a)

0

0

0

30 CFR Standard

(Exh. M-6).
G.

Appropriateness of the Penalty to the Size of the Operator's
Business

Gulf and Western Industries, Inc. (Gulf and Western), is the controller
of Solar Fuel Company (Exh. M-6A). Exhibit M-6A reveals that all of Gulf
and Western's coal production in 1978 and 1979 was attributable to Solar
Fuel Company. The parties stipulated that Solar Fuel·company mines an
average of 243,00 tons of coal annually, and that the Solar No. 5 Mine
produces an average of 80,000 tons of coal annually (Tr. 5).
H.

Effect on Operator's Ability to Continue in Business

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

Conclusions of Law

1. Solar Fuel Company and its Solar No. 5 Mine have been subject to
the provisions of the 1977 Mine Act at all times relevant to this proceeding.
2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of and the parties to this proceeding.
3. MSHA inspector Theodore R. Dues was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the
citations which are the subject matter of this proceeding.

161

4. The conditions set forth in Citation No. 4230, issued on November 8,
1978, are found to have occurred and to have constituted a violation of
30 CFR 75.1712-3(a).
5. The oral determination at the hearing granting the Petitioner's
motion to withdraw the petition for assessment of civil penalty as relates
to Citation No. 9903735, November 15, 1978, 30 CFR 70.250 is AFFIRMED.
6. All of the conclusions of law set forth in Part V, supra, are
reaffirmed and incorporated herein.
VII.

Penalty Assessed

Upon consideration of the entire record in this case and the foregoing
findings of fact and conclusions of law, I find that the assessment of a
penalty is warranted as follows:
Citation
4230

No.

Date
11/8/78

30 CFR
Standard
75.1712-3(a)

Penalty
$40

ORDER
Respondent is ORDERED to pay the civil penalty in the amount of $40
assessed in this proceeding within 30 days of the date of this decision.
IT IS FURTHER ORDERED that the petition for assessment ·of civil penalty be, and hereby is, DISMISSED as relates to Citation No. 9903735,
November 15, 1978, 30 CFR 70.250.

Law Judge
Distribution:
James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480, Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
Eugene E. Fike II, Esq., Scull Building, Somerset, Pennsylvania 15501
(Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

162

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

'JAN 2 8 1980
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Procee~ing
Docket Nos.

Assessment Control Nos.

Petitioner

v.

PIKE 79-19-P
PIKE 79-111-P
PIKE 79-112-P
PIKE 79-117-P
PIKE 79-125-P
KENT 79-116

c.c.c.-POMPEY COAL COMPANY, INC.,
Respondent

15-09727-03002
15-09727-03005
15-09727-03006 v
15-09727-03003 v
15-09727-03004 v
15-09727-03007 v

No. 3 Mine
DECISION
Appearances:

Robert A. Cohen, Esq., and Michael C. Bolden, Esq., Office
of the Solicitor, U.S. Department of Labor, for Petitioner;
Garred O. Cline, Esq., Pikeville, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued June 7, 1979, as amended on
June 26, 1979, and August 29, 1979, a hearing in the above-entitled proceeding was held on September 25, 26, and 27, 1979, in Pikeville, Kentucky,
under Section 105(d) of the Federal Mine Safety and Health Act of 1977.
The consolidated proceeding involves six Petitions for Assessment of
Civil Penalty filed by the Mine Safety and Health Administration. The
tabulation below shows the dates on which the Petitions were filed· and
lists the number of violations alleged in each Petition:
Docket Numbers

Dates of Filing

Number of
Alleged Violations

PIKE 79-19-P
November 14, 1978
PIKE 79-111-P
March 13, 1979
PIKE 79-112-P
March 13, 1979
March 19, 1979
PIKE 79-117-P
PIKE 79-125-P
March 22, 1979
KENT 79-116
May 30, 1979
Total Alleged Violations •••••••••••••••••••••••••••••

163

20
3
1
1

11
1

37

Counsel ior the parties entered into the following stipulations (Tr. 5-6):
(1) Respondent is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977.
(2) The inspectors who wrote.the notices of violation, orders of
withdrawal, and citations involved in this proceeding were authorized representatives of the Secretary of the Interior or the Secretary of Labor at
the time such documents were written.
(3) At the time the alleged violations were cited, respondent's
No. 3 Mine employed between 20 and 40 miners and produced approximately
60 9 000 tons of coal per year.
(4) Exhibit 1 in this proceeding shows that respondent has paid penalties for 64 previous violations at the No. 3 Mine.
The Summary of Assessments given at the end of this decision shows that
seven of the 37 violations alleged by MSHA in this consolidated proceeding
were the subject of evidentiary presentations by the parties and that the
remaining 30 alleged violations were the subject of a settlement agreement
entered into by the parties. I rendered bench decisions with respect to the
seven contested violations. The bench decisions will first be reproduced
in this decision as they appear in the transcript. Subsequently, this decision will summarize the reasons advanced by counsel in support of their
request that their settlement agreement be approved with respect to the
remaining 30 alleged violations.
The Contested Violations
Docket No. PIKE 79-19-P
Notice No. 2 FIJ (7-8) 2/28/77 § 75.1710
Upon completion of introduction of evidence by the parties, I rendered
the bench decision quoted below with respect to Notice No. 2 FIJ (Tr. 198199):
The former Board of Mine Operations Appeals held in several cases -- Buffalo Mining Company, 2 IBMA 226, at Page 259
(1973) -- that if the materials needed for abatement are not
available, no Notice of Violation should be written; and the
Board held the same thing in two other cases -- Associated
Drilling, Incorporated, 3 IBMA 164, at Page 173 (1974); and
Itmann Coal Company, 4 IBMA 61 (1975).
The Board also held in P and P Coal Company, 6 IBMA 86
(1976) that an administrative law judge cannot raise this
impossibility of performance defense himself, and I do not
think I have raised it here.

164

But it does seem to me Mr. Cline's testimony, through
both Mr. Chaneys, do[es] show that this Acme 100 was unfit
and unqualified for installation of canopies in 1977 -- that
is February 26, 1977, when the Notice was written.
And I realize and recognize the inspectors had a job to
do and they were applying this Section 75.1710 to all mines
in an effort to get these canopies put on th~m.
And as Mr. Cline pointed out, they did require a lot of
companies to get into the designing of canopies, to make
their own, and some of the more affluent companies such as
the Pittston Company did actually redesign shuttlecars; and
in one case I had, they spent three million dollars redesigning equipment so that canopies could be put on them; but I
do not think c.c.c.-Pompey Coal Company is large enough to
have done a job such as that.

So, I think the evidence here clearly shows it was an
impossibility of performance on this Acme 100 roof drill;
consequently, I am going to grant Mr. Cline's motion to dismiss the petition in Docket Ntunber PIKE 79-19-P, insofar as
it seeks assessment of penalty with respect to Notice Number
2 FIJ dated. February 28, 1977.
Notice No. 5 BHT (7-23) 5/11/77 § 75.1710
Upon· completion of introduction of evidence by the parties with respect
to the above Notice, I rendered the following bench decision (Tr. 236-238):
This particular Notice is much more difficult to deal
with because it is a fact it was terminated with the company acquiring a usable canopy, if you consider the conditions Mr. Chaney talked about as being usable.
But it is also a fact it took them over a year after the
N:>tice was originally issued before they were able to get a
canopy that would work •. I recognize on the day the Notice
was issued, as Mr. Chaney also recognized, the height was
forty-eight inches; and that perhaps if he can keep it at
forty-eight inches all the time and keep a level floor all
the time, he might be able to accommodate this canopy fairly
well.
But as he pointed out, it is not quite that easy; it
fluctuates, both in height and floor condition, and is still
giving them an awful lot of trouble.
And one of the factors I have to give considerable
weight to is the fact Mr. Tackett said that on May 11, 1977,

165

he had not found other mines that were using a Galis 300
with canopies on them any more than Mr. Chaney was succeeding with that.
And as Mr. Chaney pointed out, he did try to get a
canopy on this machine about six months before the Notice was
issued, which shows an unusual amount of effort and certainly
more so than if he had waited around until he was cited and
then tried to get one.

So, I think this situation, even though there are many
factors about it that weigh heavily, the fact a violation
perhaps -- the Notice, rather, should have been issued in
order to protect miners and apparently did ultimately succeed in getting them the protection, the fact remains there
is a certain amount of danger associated with these canopies,
and it is still a debatable situation; but that is neither
here nor there.
The important and only thing I have to consider today is
whether this is truly a situation where the materials needed
for the canopy were available on the date the Notice was
issued, and I think the preponderance of the evidence shows
that the equipment was not available; and therefore, I am
going to grant Mr. Cline's motion with respect to Notice
Number 5 BHT dated May 11, 1977, and dismiss the petition in
Docket Number PIKE 79-19-P with respect to that particular
Notice.
Upon completion of the introduction of evidence by the parties, I
rendered the following bench decision with respect to the alleged violations which are discussed in the bench decision (Tr. 602-616):
There are four general criteria as to which I can make
a general finding and those findings will be applicable for
all of the remaining alleged violations unless there is some
specific evidence persuading me there was not a good faith
effort to achieve rapid compliance.
The evidence submitted by stipulation indicates as
to the size of Respondent's business that it produced
sixty thousand tons per year and if you assume
two hundred fifty working days a year that would amount
to about two hundred forty tons per day.
Yesterday Mr. Cline referred to production of three hundred tons per day in some of his questions so I assume the
daily production is somewhere between two hundred forty tons
and three hundred tons. I would conclude from that that

166

Respondent operates a relatively small business, so the penalties that I assess will be in a relatively low magnitude
under the criteri[on] of the size of Respondent's business.
Mr. Cline indicated on Tuesday he did not intend to
introduce evidence regarding Respondent's ability to pay
penalties; therefore, in the absence of any evidence, I
find payment of penalties will not cause Respondent to
discontinue in business.
I am finding there was a normal good faith effort to
achieve rapid compliance with respect to all the alleged violations. I recognize that Inspector Steele did not think
there had been a good faith effort to achieve rapid compliance with respect to some of his citations and orders, but
he based that primarily on the fact that the alleged violations were not abated until May 25, and it so happens that a
lot of notices or citations were issued on the same day,
May 12, and all of them had the effect of closing down the
mine.
The Respondent worked on all of them simultaneously and
finished cleaning up the mine and getting ready for inspection by May 25 so I don't think you could make a finding of
failure to abate any one of the alleged violations at a
given point between May 12 and May 25 would have shown a
lack of good faith effort to achieve rapid compliance.
So as to all the citations and orders that have been
issued up 'til now I find a good faith effort to achieve
rapid compliance unless we have evidence of a contrary
nature at some subsequent point in which case I would give
that criteri[on] additional consideration at that time.
As to the history of previous violations, I shall consider that criteri[on] individually when the penalty is
assessed. Of course, I shall also give individual consideration to the remaining two criteria of negligence and
gravity.
Turning then to the order in which the evidence was
received [in] Docket No. [PIKE] 79-19-P, the first one of
those was Citation No. 66814 issued on May 25, 1978, by
Inspector Murphy alleging a violation of Section 75.400.
The alleged violation consisted of float coal dust extending from the portal to Spad No. 605 which was a distance of
about eight hundred feet.
'!be float coal dust existed in an entry which had been
designated as an escapeway and while it was an intake escapeway on May 25, 1978, when the citation was written, the

167

escapeway had previously been a return entry because in the
inspector's opinion, based upon a review of the mine map,
the float coal dust had accumulated in the entry during the
time the eptry had been used as a return which would have
made the accumulation form in a period prior to about May 8
to May 12, 1978, when the flow of air was reversed in the
escapeway.
The inspector did not take any samples because the float
coal dust was paper thin and defied the taking of samples.
Moreover, the former Board of Mine Operations Appeals held
in the Kaiser Steel case at 3 IBMA 489 (1974), that it is
unnecessary to take samples to support a violation of Section
75.400.
c
The former [B]oard did establish some very strict criteria which must be shown or proven by an inspector in order
to make a prima facie case with respect to an alleged violation of Section 75.400. The [B]oard's opinion on that matter was issued in Old Ben Coal Company, 8 IBMA 98, where at
pages 114 to 115 the [B]oard said that a prima facie case
requires the following steps in proof: First, an accumulation of combustible material existed in the active workings
or on electrical equipment in the active workings of a coal
mine; two, that the coal mine operator was aware, or by exercise of due diligence and concern for the safety of the
miners, should have been aware of the existence of such
accumulation; and three, that the operator failed to clean
up such accumulation or failed to undertake to clean it up
within a reasonable time after discovery or within a reasonable time after discovery should have been made.
There is a close question between Inspector Murphy and

Mr. Harold Chaney with respect to whether the gray appearance
of the escapeway was dark enough to be considered a float
coal dust accumulation because both witnesses stated the
appearance of the entry was gray.
Mr. Chaney claims the gray appearance was the result of
dampness and after the entry was rock dusted to abate the
citation it regained its gray appearance a short time after
the rock dusting when the new coat of rock dust became as
wet as the old coat of rock dust.
That evidence requires me to make a credibility determination between the two witnesses and I'm finding in favor
of Inspector Murphy because both Mr. Harold Chaney and his
brother praised the fair and objective manner in which
Inspector Murphy made his inspection and I don't -- and I
mean all inspections -- and I don't believe Inspector

168

Murphy would have written a citation as to float coal dust
without making a very careful and thorough examination
which convinced him an accumulation of float coal dust
existed.
Therefore, I find that the accumulation of float coal
dust existed and I find Mr. Chaney either knew about it or
should have known about i t if he had made as diligent an
examination of the escapeway as Inspector Murphy did.
Inspector Murphy believed that Respondent had failed to
clean up the accumulation within a reasonable time because he
wrote the citation on May 25, 1978, and he believed the float
coal dust had existed since about May 8, 1978, when the air
flow was reversed from the return to intake air.

Mr. Harold Chaney said the air flow was reversed on
May 12, 1978, and he stated there was no float coal dust in
the escapeway on May 12, 1978. Nevertheless, I have found
the float coal dust existed on May 25, 1978, so it would
have had to have accumulated after May 12, 1978, under
Hr. Chaney's view of the facts.
In the Old Ben case the [B]oard stated that the operator
knew exactly when the accumulation there involved occurred
and knew when the cleanup was begun and how many men were
being used to do the cleanup. In this case, Mr. Harold
Chaney did not know when the escapeway was last rock
dusted; therefore, I find he lacked the necessary facts to
overcome MSHA's prima facie case that violation of Section
75.400 occurred.

I find that the violation was only moderately serious
because Inspector Murphy cited no ignition hazards and
stated that an explosion at the face of some size would be
required for propagation of an explosion down the escapeway.
There was normal negligence involved because the gray color
of the float coal dust might have been a reason for
Hr. Chaney to omit having a new coat of rock dust applied;
therefore, a penalty of one hundred dollars ($100) will be
assessed for this violation of Section 75.400.
Exhibit 1 shows Respondent violated Section 75.400 twice
in 1976, and eight times in 1977. That is a very adverse
trend in the numbers of violations of Section 75.400; therefore, the penalty will be increased by one hundred dollars
($100) to two hundred dollars ($200) because of Respondent's
unfavorable history of previous violations.
Also in Docket No. PIKE 79-19-P there is an alleged violation of Section 75.1704 alleged by Inspector Murphy in

169

Citation No. 66815 dated Uay 25, 1978. Section 75.1704
requires an escapeway [to] be maintained in a safe condition.
Inspector Murphy stated a two hundred foot portion of
the same escapeway inby Spad No. 605 mentioned in the previous citation was unsafe because the roof needed scaling
in several locations and additional timbers needed to be
installed to maintain a travelway six feet wide.

Mr. Chaney stated the two hundred foot portion had just
been added to the escapeway to correct another alleged violation but the two hundred foot portion had been marked as an
escapeway and was required to be in a safe condition.
Inspector Murphy believed that this violation was only
potentially serious and I find it was moderately serious
and involved normal negligence; therefore, a penalty of
one hundred dollars ($100) will be assessed for.this violation of Section 75.1704.
Exhibit 1 shows Respondent has _violated this section on
one previous occasion. It is important that escapeways be
maintained in a safe condition so the penalty will be
increased by twenty-five dollars ($25) to one hundred
twenty-five dollars ($125) because of Respondent's history
of a previous violation.
The petition ·for assessment of civil penalty filed in
Docket No. PIKE 79-117-P seeks assessment of civil penalty
with respect to Citation No. 66866 dated May 12, 1978,
involving an alleged violation of Section 75.301 because
the velocity of air was too low to be measured with an
anemometer.
There was a great deal of discussion in the record about
the way that Inspector Steele conducted himself during the
inspection made on May 12, 1978, but Respondent has presented no witness who denies that the air velocity was
below nine thousand cubic feet per minute when Inspector
Steele issued Citation No. 66866.
Mr. Harold Chaney found a velocity of more than
nine thousand cubic feet per minute when he made his preshift examination prior to 6:00 a.m. but Mr. Chaney agrees
some of the required curtains were down when he next examined
the section and since he did not take an air reading at the
subsequent time when Inspector Steele.issued Citation No.
66866 on May 12, 1978, I believe the evidence shows the
velocity was very low at the time Inspector Steele made
his examination.

170

While all witnesses agree no coal was being mined on
May 12, 1978, all witnesses did agree that the.coal was
being loaded on May 12 and the ventilation, methane, and
dust control plan requires that a velocity of nine
thousand cubic feet of air be maintained at the last open
crosscut if coal is being mined, cut or loaded; therefore,
I find a violation of Section 75.301 occurred.
The preponderance of the evidence shows the violation
W"as only moderately serious because the low air velocity had
not existed for more than one or two hours as it occurred
between the preshift examination and the writing of the citation at 8:30 a.m.
The low air velocity was caused by heavy rain which
caused the belt on the fan to slip and turn more slowly than
was normal and by the fact that the scoop operator knocked
down curtains when they began cleaning up the coal on the
section at· the beginning of their shift. The section foreman was considerably negligent in failing to maintain his
air velocity or check with Mr. Chaney if he could not
dete~mine why he lacked the required air velocity.
Inspector Steele did not observe a tremendous amount of
dust in suspension in the section at the time the citation
was written and since the violation had existed for only
one or two hours there was not a great likelihood of an
explosion from methane accumulation since no methane was
detected by Inspector Steele and none has ever been
detected in the No. 3 Mine.
Since there was a high degree of negligence a penalty of
three hundred dollars ($300) is warranted. Exhibit 1 shows
no previous violations of Section 75.301; therefore, the
penalty will not be increased under the criteri[on] of
history of previous violations.
There was only one alleged violation in.that docket
[PIKE 79~117-P]. The next docket that was considered is
Docket No. PIKE 79-125-P. In that-one, the first one that
was considered was Order No. 66869 which was written by
Inspector Steele on May.12, 1978, at 9:00 a.m. citing a
violation of Section 75.400.
Here again the [B]oard's Old Ben opinion at 8 IBMA 98
must be considered. All witnesses, namely Inspector Steele,
Inspector Ratliff, and both Mr. Harold Chaney and Mr. Ronald
Chaney, agreed there was some coal dust, oil and grease on
the S&S scoop cited in Inspector Steele's order.

171

There is disagreement among the witnesses as to whether
the accumulations were great enough to warrant the issuance
of an order but Inspector Ratliff believed it would take -or would have taken about a week for the oil to accumulate
to the extent he observed it when he was checking
permissibility.
But he did not express an opinion as to the time that
would have been required for the coal dust to accumulate.
Nevertheless, the preponderance of the evidence supports my
finding, and I find an accumulation of combustible materials
existed on the scoop.
lhe next step in building a prima facie case is barely
made out by the evidence but I find the operator knew or
should have known that the accumulation existed. The third
step in the prima facie case, however, is not supported by
Inspector Steele because he stated during cross-examination
that he could not put a time limit on the period the accumulation had existed and he stated he did not ask when the
scoop had last been cleaned.
The [B]oard in the Old Ben ca~e reversed the finding
that a violation of Section 75.400 had occurred primarily
because of the Inspector's failure to make an investigation
as to whether the operator had failed to clean up the accumulation within a reasonable time after the accumulation
occurred.
It should be noted that Inspector Murphy in the previous
violation that I found as to Section 75.400 knew an exact
time when the float coal dust in the escapeway should have
been removed and re-rock dusted but here Inspector Steele
did not have the necessary facts to support all steps of the
prima facie case required by the [B]oard's Old Ben opinion;
therefore, I find that MSHA failed to prove that a violation
of Section 75.400 occurred with respect to Order No. 66869
and that its petition for assessment of civil penalty in
Docket No. PIKE 79-125-P should be dismissed to the extent
that a penalty is sought with respect to the violation of
Section 75.400 1/ alleged in Order No. 66869 dated May 12,
1978.

1J

On December 12, 1979, the Commission issued its decision in MSHA v.
Old Ben Coal Co., Docket No. VINC 74-11, 79-12-4, in which it held that
the mere existence of a combustible accumulation could be considered a
violation of Section 75.400. Since my bench de.cision was rendered on
September 27, 1979, and.was final insofar as the parties were concerned,

172

Also in Docket No. PIKE 79-125-P Order No. 66870 dated
May 12, 1978, cited Respondent for a violation of Section
75.316 because Respondent had failed to install stoppings
in five open crosscuts. Inspector Steele's allegation
that five stoppings were missing was strongly challenged
by Respondent's witness, Mr. Harold Chaney, who said that
stoppings were required in only four crosscuts because the
section had only advanced four crosscuts to the right of
the main heading.
The confusion as to the disagreement between Mr. Chaney
and Inspector Steele was resolved and Inspector Steele
numbered the affected crosscuts on Exhibit 4 or the mine
map. Mr. Chaney, thereafter, said Inspector Steele was
including a crosscut inby the feeder which Mr. Chaney did
not consider to be a part of the [working] section cited in
Order No. 66870.
Inspector Steele agreed the stoppings which were
installed at the time Mr. Chaney made his preshift examination would have been in compliance with the ventilation plan
or Exhibit 3, since Mr. Chaney had obtained an air velocity
of nine thousand cubic feet a minute or more at the last open
crosscut. Eventually, both Mr. Chaney and Inspector Steele
agreed that enough stoppings had been knocked down by the
scoop operator when he was cleaning up to reduce the
required number of stoppings below those required to be
maintained to have a proper separation of the return from
the intake entries; therefore, I find a violation of Section
75.316 occurred.
Here again, the preponderance of the evidence shows that
the violation existed for only about three hours, so the
miners were not exposed for long to excessive respirable dust
or a possible explosion, which would have been remote in any
event since no methane was detected on May 12, 1978, or has
ever been [detected] in the No. 3 Mine. Again I find the
section foreman was very· negligent in failing to see th[at]
proper ventilation was maintained and a penalty of
three hundred dollars ($300) is warranted.
Exhibit 1 shows Respondent has previously violated Section 75.316 on two prior occasions; therefore, the penalty
will be increased by fifty dollars ($50) to three hundred
fn. 1 (continued)
I do not believe that my decision should be amended to change my finding
with respect to the violation of Section 75.400 alleged in Order No. 66869
because the Board's Old Ben opinion was the applicable law at the time my
bench decision was rendered.

173

fifty dollars ($350) under the criteri[on] of Respondent's
history of previous violations.
Also in Docket No. PIKE 79-125-P Order No. 66872 dated
May 12, 1978, cited Respondent for a violation of Section
75.200 because Respondent had failed to comply with its roof
control plan or Exhibit 3 by driving seven entries for three
crosscuts inby and two crosscuts outby Survey Station No.
1708 to a width of from twenty-one feet, ten inches to
twenty-three feet, one inch, whereas the roof control plan
permits a width of only twenty feet.
Mr. Harold Chaney challeged that order, that is
No. 66872, as having correctly cited a violation of Section
75.200 because he stated a provision on page 8 of Respondent's roof control plan allows Respondent to drive an
entry up to four feet in excess of the normal twenty foot
width, provided an extra roof bolt is installed, so as to
prevent a spacing of roof bolts greater than four feet from
the rib.
Since Inspector Steele did not allege he had checked the
roof bolts at the wide places cited in his order and found
spaces -- and therefore did not know whether spaces existed
at the roof bolts greater than four feet [from the ribs],
Mr. Chaney correctly contended no violation of the roof
control plan had been proven.
I find Mr. Chaney's point is well taken. The provision
on page 8 of the roof control plan would permit varying entry
widths of up to four feet so long as an extra roof bolt is
installed to prevent a roof bolt spacing from the rib of
more than four feet.
Inspector Steele stated another inspector had examined
the spacing of the roof bolts and that he did not personally
make that a part of his order. I find that Inspector
Steele's failure to consider the roof bolt spacing as a
simultaneous part of the citation of a violation of the roof
control plan is a fatal flaw in his Order No. 66872 and prevents me from finding that a violation of Section 75.200 is
proven.
Therefore, MSHA's petition for assessment of civil penalty in Docket No. PIKE 79-125-P will be dismissed to the
extent it seeks assessment of a civil penalty for a violation of Section 75.200 with respect to Order No. 66872
dated May 12, 1978.

174

Docket No. PIKE 79-111-P
Order No. 70617 8/14/78 §§ 75.603, 75.604, and 75.517
Upon completion of the introduction of evidence by the parties, I
rendered the following bench decision with respect to Order No. 70617
(Tr. 627-632):
The order that Mr. Cline has been talking about is No.
70617 issued August 14, 1978, alleging violations of Sections 75.603, 75.604 and 75.517. Considering those in the
order they are set forth in Order No. 70617 I shall discuss
the alleged·violation of 75.603 first.
Inspector Murphy alleged there were four temporary
splices in the trailing cable to a Galis 300 roof bolting
machine, whereas only one temporary splice is permitted in
a twenty-four period. Mr. Harold Chaney, Respondent's witness, stated he had added an exten[s]ion to the pre-existing
trailing cable to the roof bolting machine and that the
exten[s]ion was obtained by removing it from an unused Acme
roof bolter on the surface~

Mr. Chaney connected the exten[s]ion to the pre-existing
cable by using a temporary splice. Mr. Chaney said there
were some taped places on the trailing cable but as far as
he knew the only temporary splice in the cable was the one
he used for connection of the cable to the pre-existing
cable.
Inspector Murphy's rebuttal testimony shows that he specifically found the spliced conductor in the cable and since
Inspector Murphy examined the trailing cable with greater
care than Mr. Chaney I find that his testimony supports a
finding that the four temporary splices existed and at the
time I wrote that language, I did not have before me
Mr. Cline's offer of proof on behalf of witness Cantrell.
I cannot give Mr. Cantrell's proposed statement as much
weight as I do Inspector Murphy's statement because Inspector Murphy was here and [was] cross-examined in great detail
about all these matters. I am unwilling to find that an
offer of proof is sufficient to rebut Inspector Murphy's
testimony on this point, particularly in light of general
testimony in this record to the effect that Mr. Murphy is. a
fair and objective inspector.
So with respect to the temporary splices I find the violation was only moderately serious because the four temporary
splices were apparently in satisfactory condition inasmuch as

175

no bare wires were cited by Inspector Murphy when he examined
them; the shock and fire hazard associated with the temporary
splices was therefore only potential.
The negligence associated with this violation, however,
was of a high degree because Mr. Chaney, Mr. Harold Chaney,
used a temporary splice without making certain that other
temporary splices were nonexist[e]nt.
He says there were taped places but he was not sure
whether there were splices in those tapes or not. While
Mr. Chaney intended to remove the temporary splice within
the twenty-four period so as to avoid a violation of Section 75.603, it is a fact that he used the temporary
splice to save the cost of buying a permanent splicing kit
and to avoid stopping production for from one to one half
of one shift because he expected to pull out of [the area
here involved] after roof bolts had been installed to
abate another violation written at a previous time.

Mr. Ronald Cha¥y, Respondent's president, was aware the
trailing cable had been lengthened but he believed any
defects in the cable were nonserious because they existed
near the nip station where miners would be unlikely to walk
unless a fuse should need to be replaced. It is haste and
taking unnecessary risks which produce fatalities in coal
mines.
While neither of Respondent's witnesses believed the
extension of the cable exposed the miners to serious injury,
it is a fact that the extension could have resulted in the
electrocution of a miner who might have come to the nip
station to replace a fuse which might have blown because
of the use of a different size cable or defects in the old
piece of cable used to make the extension; therefore, I
believe the moderate seriousness and high degree of negligence involved in this violation of Section 75.603 warrants
a penalty of five hundred dollars ($500)•
I would assess more if a relatively small operator were
not involved. Exhibit 1 does not indicate that Respondent
has previously violated Section 75.603, so the penalty will
not be increased under the criterion of history of previous
violations.
Passing on to the alleged violation of Section 75.604
which deals with permanent splices and a bare wire in one
and worn places in others, there's no.dispute about the
fact the trailing cable had worn permanent splices in it.
As both Inspector Murphy and Mr. Harold Chaney agreed, the

176

cable contained permanent splices and Mr. Chaney agreed
that some of the permanent splices were worn and needed to
be repaired.
\\bile Mr. Chaney stated he did not see a bare wire
exposed in any permanent splice, Mr. Chaney did not examine
the splices as carefully as Inspector Murphy and therefore
I find Inspector Murphy's testimony supports the finding
[that] an exposed bare wire existed in one o·f the splices.
Since an exposed wire is capable of causing electrocution I find that the violation was very serious. Mr. Chaney
was very negligent in failing to repair the permanent
splices; therefore, a penalty of seven hundred fifty dollars
($750) will be assessed for the violation of Section 75.604.
Exhibit 1 shows no history of previous violations with
respect to Section 75.604 and therefore there will be no
increase in the penalty under that criteri[on].

As to Section 75.517, Inspector Murphy's testimony also
supports a finding that two damaged places existed in the
trailing cable. Since one of the damaged places had a bare
wire exposed in it, the violation of Section 75.517 was
equally serious and involved a similar degree of negligence.
For those reasons a penalty of seven hundred fifty
dollars ($750) will be assessed for the violation of Section
75.517. Exhibit 1 indicates that Respondent has not previously violated Section 75.517 so the penalty will not be
increased under that criteri[on].
That completes the decision on all the cases or alleged
violations as to which we had evidence. I asstune that you're
ready to proceed to the matters that were settled?
Settlement Agreements.
Docket No. PIKE 79-19-P
_Citation No. 66877 dated May 12, 1978, alleged that respondent had violated Section 75.200 because loose roof bolts had been observed in an area
starting at the portal and extending inby to the 001 Section. The citation
was subsequently changed to Withdrawal Order No. 66813 when Inspector
lbrphy returned on May 25, 1978, and found that the alleged violation had
not been abated. The Assessment Office proposed a penalty of $760 for this
alleged violation and respondent has agreed to pay a penalty of $400. MSHA's
counsel stated that he had agreed to accept the reduced amount because the
operator's contention is that in some places the roof had been doubly supported by additional roof bolts. Also there was no allegation made that

177

the roof itself was bad, other than around the roof bolt area, and there
is doubt as to the number of roof bolts involved in this particular violation. Those facts warrant a reduction in the penalty. Additionally, even
though the operator had been issued a withdrawal order for failure to abate
on May 25, 1978, }1SHA's counsel thought that some consideration should be
given to the fact that the operator's mine had been closed by numerous
outstanding withdrawal orders and the operator was having some difficulty
in abating all of the orders simultaneously (Tr. 633).
Citation No. 67701 dated May 12, 1978, alleged that respondent had violated Section 75.514 because suitable connectors were not being used in
approximately 40 splices installed in 200 feet of feeder wire. Wire rope
clamps were being used for connectors and a dispute arose over the types
of clamps that can be installed in feeder wire. MSHA's counsel stated that
in some instances some of the clamps that had been installed as connectors
had been acceptable by MSHA in the past. The Assessment Office proposed a
penalty of $920 and respondent has agreed to pay a penalty of $500. MSHA's
counsel stated that he had agreed to accept the reduced amount because even
though it was a serious violation, the small size of the operator should
be considered. Also the fact that the operator failed to abate in a
timely fashion was again the result of the fact that he was under numerous
withdrawal orders and may have been hindered from abating all alleged violations as rapidly as he would have preferred to have corrected them (Tr. 634635).
Citation No. 67702 dated May 12, 1978, alleged that respondent had violated section 75.517 in that the 300-volt DC feeder wire was uninsulated in
approximately 40 places. along its entire length from the drift up to the
face of the 001 Section. MSHA's counsel noted that some of this wire was
located in places not frequently traveled by the miners and that factor
reduced the miners' likelihood of exposure to danger associated with the
uninsulated places. The Assessment Office proposed a penalty of $920 and
respondent has agreed to pay a penalty of $500. The penalty was increased
substantially by the Assessment Office because a subsequent withdrawawl
order was issued on May 25 for failure of the operator to abate the condition, but, again, the operator was trying to cope with numerous withdrawal
orders a~d was hindered from abating the citation as quickly as the inspector seemed to think it should have been abated (Tr. 636).
Citation No. 67703 dated May 12, 1978, alleged that respondent had violated Section 75.516 in that the DC feeder wire was not properly supported
on insulators and was in contact with the roof or mine floor along its
entire length from the portal to the working section. MSHA's counsel
stated that this was a serious violation since the principal danger was
the possibility of a fire. The operator claims that there were areas
where the wire was properly supported. The Assessment Office proposed a
penalty of $920 and respondent has agreed to pay $500. MSHA's counsel
stated that the Assessment Office increased the.proposed penalty substantially because a withdrawal order had been issued. MSHA's counsel said

178

that the operator was hampered from supporting the feeder wire by obligations resulting from other orders and that he believed a penalty of $500
was fair and reasonable in this instance (Tr. 637-638).
Citation No. 67704 dated May 12, 1978, alleged that respondent had violated Section 75.512 because the switch used to control the No. 2 belt drive
from the tailpiece was not properly designed in that a bare wire and nail
were being used to make contact on the 230-volt DC control circuit. The
Assessment Office considered that the violation involved gross negligence,
that it was very serious, and proposed a penalty of $690 which respondent
has agreed to pay in full (Tr. 638-639).
Citation Nos. 67706 and 67708 were both dated May 12, 1978, and both
alleged that respondent violated Section 75.523-2. Both citations alleged
violations because the deenergization devices, or panic bars, installed on
two scoops were inoperative •. The scoops were used to load coal in the 001
Section. Respondent's and MSHA's counsel agreed that panic bars do break
down on a fairly regular basis. MSHA's counsel stated that there was no
way to determine how long the panic bars had been inoperative prior to the
inspection. The operator claims that the panic bars had been checked
before the inspection and found to be working. Therefore, the operator
contends that he was unaware of their inoperative condition. The Assessment Office proposed a penalty of $195 for each of the alleged violations
and respondent has agreed to pay $125 for each alleged violation (Tr. 640641).
Citation No. 67707 dated May 12, 1978, alleged that respondent had violated Section 75.503 by not maintaining the scoop so that it was in a permissible condition. Counsel for MSHA stated that the lack of permissibility
should have been found during an electrical inspection, but· he noted that
no methane had been detected and he believed that the lack of methane should
be considered as a factor to reduce the gravity of the alleged violation.
The Assessment Office proposed a penalty of $255 and respondent has agreed
to pay $200 (Tr. 641-642).
Citation No. 67709 dated May 12, 1978, alleged that respondent had violated Section 75.503 because an S & S scoop was not maintained in a permissible condition. That condition, when considered with the fact that no
methane was found, reduced the gravity of the alleged violation sufficiently,
in the opinion of MSHA's counsel, to justify accepting respondent's offer
to pay a penalty of $150 instead of the penalty of $170 proposed by the
Assessment Office (Tr. 642).
Citation No. 67710 dated May 12, 1978, alleged that respondent had violated Section 75.313-1 because the methane monitors on two scoops were
inoperative. The operator stated that the panic bars were not operating
either because an electrical problem had developed on the scoops which the
operator claims prevented his knowing of the inoperative monitors. Respondent alleges that it endeavors to keep the monitors in good condition even
though no methane has been found on the working section. The Assessment

179

Office proposed a penalty of $195 and respondent has agreed to pay $150 for
the alleged violation (Tr. 643).
Citation No. 67711 dated May 12, 1978, alleged that respondent had violated Section 75.518 because no short circuit protection had been provided
for the 30-horsepower belt drive motor. The violation produced a fire and
shock hazard. The Assessment Office proposed a penalty of $655 and respondent has agreed to pay $500 for the alleged violation. Here, again, the
Assessment Office increased the penalty substantially because a withdrawal
order was subsequently issued. MSHA's counsel stated that the operator was
confronted with abating a large number of alleged violations and could not
work on all of them simultaneously. In such circumstances, MSHA's counsel
stated that he believed the acceptance of a reduced penalty was justified
(Tr. 643-644).
Citation Nos. 67712 and 67713 dated May 12, 1978, alleged that respondent had violated Sections 75.515 and 75.701, respectively. Both of the
alleged violations deal with electrical connections for the belt-drive
motor. MSHA's counsel said that the first citation deals with the fact
that suitable cable fittings were not provided where the power cable
entered the metal frame of the motor. In the second citation, the alleged
violation was that respondent had failed to provide a frame ground. Both
alleged violations produced possible shock and fire hazards. Again, the
Assessment Office increased the penalties substantially because withdrawal
orders were subsequently issued for failure of the operator to abate within
the time originally given by the inspector. The Assessment Office proposed
a penalty of $760 for the alleged violation of Section 75.515 and respondent
has agreed to pay $500~ MSHA's counsel was agreeable to accepting the
reduced penalty because no worn places existed on the ~res for which
proper fittings had not been provided. For the alleged violation of Section
75.701, the Assessment Office proposed a penalty of $920 and MSHA's counsel
believed that respondent's agreement to pay $500 was reasonable in view of
the problems respondent was.having in correcting a large number of alleged
violations (Tr. 644-645).
Citation No. 67728 dated May 12, 1978, alleged that respondent had violated Section 75.1722 because a guard had not been provided for the chaintype control between the drive motor and the speed reducer for the No. 2
belt drive. MSHA's counsel stated that two protective guards are required
in this area. The operator was engaged in repairing one guard and another
had been broken during the shift. In the opinion of MSHA'fl counsel, those
circumstances reduced the degree of negligence and warranted accepting a
reduced penalty of $150 instead of the penalty of $240 proposed by the
Assessment Office (Tr. 646-647).
Citation No. 67716 dated May 25, 1978, alleged that respondent had violated Section 75.200 by failing to maintaiu a required apron over the portal
to prevent rocks from falling from the highwa11· on the men as they went in
and out of the mine. MSHA's counsel stated that the supports had been dislodged and were not serving the purpose for which they had been installed.

180

The Assessment Office proposed a penalty of $305 and respondent has agreed
to pay a penalty of $200. The operator claimed that' a scoop had knocked
the supports down on the same morning during which the inspector made his
examination. MSHA's counsel stated that the short period of time between
the knocking down of the supports and the time the citation was written
supported a finding of a low degree of negligence and justified accepting
the reduced penalty (Tr. 647-648).
Citation No. 67715 dated May 25, 1978, alleged that respondent had violated Section 75.2-02 because overhanging brows were present in the working
section and in the outby haulage roadways. The overhanging brows had not
been scaled or supported. Counsel for MSHA said that when an overhanging
brow is present, it either has to be taken down or supported and that MSHA
feels this was a serious violation. In the opinion of MSHA's counsel,
roof brows have been the cause of both deaths and serious injuries in coal
mines and the operator should have been aware of the condition. The operator claims that a lot of the brows were in crosscut areas where they
would not normally have exposed miners to danger. The Assessment Office
proposed a penalty of $920 and respondent has agreed to pay $600. MSHA's
counsel believed that the r.educed penalty was warranted since the Assessment
Office had increased the penalty largely on the basis that a withdrawal
order had subsequently been issued. As has previously been stated, a large
number of citations had been issued within a relatively short period of
time. Respondent's mine had ceased to produce coal while the alleged violations were being corrected, but respondent was unable to abate all of the
violations simultaneously (Tr. 648-649).
Docket No. PIKE 79-125-P
The Petition for Assessment of Civil Penalty in Docket No. PIKE 79-125-P
seeks assessment of civil penalties for 11 alleged violations. Three of
those violations were alleged in Order Nos. 66869, 66870, and 66872 which
have already been considered in my bench decision, supra (Tr. 613-616).
Order No. 66873 dated May 12, 1978, alleged that respondent had violated Section 75.1704 by failing to prevent the accumulation of water to a
depth of 30 inches in the intake escapeway. The Assessment Office proposed
a penalty of $600 and respondent has agreed to pay· $350. Counsel .for MSHA
stated that there was some evidence that the operator had attempted to provide another escapeway around this area. The violation occurred during a
rainy period when water could accumulate rapidly. MSHA's counsel believed
that the circumstances justified acceptance of a reduced penalty (Tr. 650).
Order No. 66874 dated May 12, 1978, alleged that respondent had violated Section 77.1104 in that the diesel generator was not maintained in a
safe operating condition because oil and grease had accumulated on the
generator and oil was standing in puddles under it. Counsel for MSHA
stated that this particular piece of equipment was on the surface and that
its location had the effect of reducing the danger of fire. The operator
showed good faith in abating the condition rapidly. The Assessment Office

181

proposed a penalty of $400 and respondent has agreed to pay $200. MSHA's
counsel believed that good reasons had been given for accepting a reduced
penalty in view of the fact that respondent claimed that some of the
puddles consisted of water and that the oil was engine-lubricating oil
rather than diesel fuel. The engine oil was less ignitable than fuel oil
would have been (Tr. 650-652).
Order No. 66875 dated May 12, 1978, alleged that respondent had violated Section 77.404 in that the front-end loader was not being maintained
in a safe operating condition because its windshield was cracked, it was
not equipped with a fire extinguisher, and its back-up alarm was not operative. MSHA's counsel said that the mitigating circumstances were that
the loader was not being used at the time of inspection and the fact that
it was a surface violation made it less serious than if the equipment had
been used in the underground mine. The Assessment Office proposed a penalty
of $400 and respondent has agreed to pay $250 which MSHA's counsel believed
to be appropriate for the reason stated above (Tr. 652-653).
Order No. 66876 dated May 12, 1978, alleged that respondent had violated Section 77.202 in not maintaining the belt drive located on the surface in a safe operating condition because oil and float coal dust had
been permitted to accumulate on the drive. MSHA's counsel stated that the
Assessment Office had proposed a penalty of $400, but he had concluded
that no assessment should be made because this particular alleged violation was a duplication of another citation written by a different inspector. The operator has agreed to pay the full penalty proposed by the
Assessment Office with.respect to the overlapping citation and MSHA's
counsel said that since the same belt drive was involved in both citations, he believed that fairness justified assessment of only one penalty.
Therefore, MSHA's counsel requested that he be permitted to withdraw the /
Petition for Assessment of Civil Penalty in Docket No. PIKE 79-125-P to
the extent that it alleged a violation of Section 77.202 with respect to
Order No. 66876. That request is hereinafter granted in the order
accompanying this decision (Tr. 654-655).
Order No. 67705 dated May 12, 1978, alleged that respondent had violated Section 75.701 because the cutting machine and roof-bolting machine
had not been properly grounded. MSHA's counsel said that an effort to
ground the machines had been made, but the inspector was not convinced
that the machines had been adequately grounded. The Assessment Office
proposed a penalty of $400 and respondent has agreed to pay $300. MSHA's
counsel stated that he believed a reduced penalty was justified in light
of the operator's strong contention that the machines had been adequately
grounded (Tr. 655-656).
Order No. 67726 dated May 12, 1978, alleged that respondent had violated Section 75.400 by allowing excessive· amounts of loose coal, coal dust,
and float coal dust to accumulate in the conveyor belt entry and connecting
crosscuts. The accumulation ranged from 1/8 inch to 10 inches in depth.
The conveyor belt is 900 feet long. The Assessment Office believed that

182

the violation involved a high degree of negligence and gravity and proposed
a penalty of $1,100 which respondent has agreed to pay in full (Tr. 656657).
Order No. 67727 dated May 12, 1978, alleged that respondent had violated Section 75.1100-1 by having removed a joint in the waterline running
parallel to Nos. 1 and 2 conveyor belts with the result that the conveyor
belts did not have adequate fire protection. It was the contention of the
operator that the waterlines had been temporarily disconnected so that a
motor on the belt drive could be fixed. It was the operator's intention
to restore the waterlines to an operable condition as soon as the repairs
had been completed, but the inspector observed the condition before the
necessary work had been done. The Assessment Office proposed a penalty of
$900 and respondent has agreed to pay $500. It was the opinion of MSHA's
counsel that a reduced penalty of $500 was adequate when the extenuating
circumstances are taken into consideration because there is nothing to
show that a fire was likely to occur at the time the waterline was out of
service (Tr. 656-658).
Order No. 67729 dated May 12, 1978, alleged that respondent had violated Section 75.200 because approximately 50 roof bolts had not been
installed in accordance with the roof-control plan inasmuch as the bolts
were required to be installed on 4-foot centers, whereas they had been
installed from 4-1/2 to 6 feet apart. The Assessment Office correctly
found that a high degree of negligence and gravity were involved and proposed a penalty of $500 which respondent has agreed to pay in full (Tr.
658).
Docket No. KENT 79-116
Order No. 66871 dated May 12, 1978, alleged that respondent had violated Section 75.403 because no rock dust had been applied for a distance of
three crosscuts beginning at a point two crosscuts inby Survey Station No.
1708. Two samples were taken by the inspector of the area cited in his
order and the analyses of the samples showed the incombustibility content
of one sample to be 35 percent while the incombustibility content of the
other sample was 79 percent. No explanation exists for the fact that one
sample showed no violation while the other did. MSHA's counsel stated that
the equivocal nature of the evidence justified acceptance of a reduced penalty of $400 instead of the penalty of $800 proposed by the Assessment
Office (Tr. 658-659).
Docket No. PIKE 79-112-P
Order No. 66868 dated May 12, 1978, alleged that respondent had violated Section 75.400 in that the operator had allowed combustible material
consisting of loose coal and float coal dust to accumulate on the ribs and
floor in depths ranging from 1 inch to 24 inches. The accumulations started
two crosscuts outby Survey Station No. 1708 in the No. 5 entry and extended
inby for three crosscuts. The area included Nos. 1 through 7 entries and

183

connecting crosscuts. The Assessment Office proposed a penalty of $600 and
respondent has agreed to pay the proposed penalty in full.
I find that counsel for respondent and MSHA gave satisfactory reasons
for the penalties agreed upon in their settlement conference and that the
settlement agreements hereinbefore discussed should be accepted.
Summary of Assessments and Conclusions
(1) Based on all the evidence of record and the aforesaid findings of
fact, or the parties' settlement agreements, the following civil penalties
should be assessed:
Docket No. PIKE 79-19-P

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Citation No. 66814 5/25/78 § 75.400 •• (Contested)
200.00
$
Citation No. 66815 5/25/78 § 75.1704 •• (Contested)
125.00
Citation No. 66877 5/12/78 § 75.200
(Settled)
400.00
Citation No. 67701 5/12/78 § 75.514
(Settled)
500.00
Citation No. 67702 5/12/78 § 75.517
(Settled)
500.00
Citation No. 67703 5/12/78 § 75.516
(Settled)
500.00
690.00
Citation No. 67704 5/12/78 § 75.512
(Settled)
Citation No. 67706 5/12/78 § 75.523-2 • (Settled)
125.00
Citation No. 67707 5/12/78 § 75.503 ••• (Settled)
200.00
125.00
Citation No. 67708 5/12/78 § 75.523-2 • (Settled)
150.00
Citation No. 67709 5/12/78 § 75.503 ••• (Settled)
Citation No. 6771Q 5/12/78 § 75.313-1
(Settled)
150.00
Citation No. 67711 5/12/78 § 75.518
(Settled)
500.00
.Citation No. 67712 5/12/78 § 75.515
(Settled)
500.00
Citation No. 67713 5/12/78 § 75.701
500.00
(Settled)
Citation No. 67715 5/25/78 § 75.202
600.00
(Settled)
200.00
Citation No. 67716 5/25/78 § 75.200
(Settled)
Citation No. 67728 5/12/78 § 75.1722 •• (Settled)
150.00
Total Settlement and Contested Penalties in
Docket No. PIKE 79-19-P •••••••••••••••••••••••••• $6,115.00

.

Docket No. PIKE 79-111-P
Order No. 70617 8/14/78 § 75.603
(Contested)
Order No. 70617 8/14/78 § 75.604
(Contested)
Order No. 70617 8/14/78 § 75.517
(Contested)
Total Penalties in Docket No. PIKE 79-111-P ••••••••

$

500.00
750.00
750.00
$2,000.00

Docket No. PIKE 79-112-P
Order No. 66868 5/12/78 § 75.400 •••••• (Settled)
Total Settlement Penalty in Docket No.
PIKE 79-112-P ••••••••••••••••••••••••••••••••••••

184

$

600.00

$

600.00

Docket No. KENT 79-116
Order No. 66871 5/12/78 § 75.403 •••••• (Settled) •••••••
Total Settlement Penalty in Docket No.
KENT 79-116 ••••••••••••••••••••••••••••••••••••••

$ 400.00
$ 400.00

Docket No. PIKE 79-117-P
Citation No. 66866 5/12/78 § 75.301 •••• (Contested)
$ 300.00
300.00
Total Penalty in Docket No. PIKE 79-117-P •••••••••••
Docket No. PIKE 79-125-P
Order No. 66870 5/12/78 § 75.316 ••••••• (Contested)
$ 350.00
Order No. 66873 5/12/78 § 75.1704 •••••• (Settled)
350.00
Order No. 66874 5/12/78 §. 77.1104 •••••• (Settled)
200.00
Order No. 66875 5/12/78 § 77.404
(Settled)
250.00
Order No. 67705 5/12/78 § 75.701
(Settled)
300.00
Order No. 67726 5/12/78 § 75.400 ••••••• (Settled)
1,100.00
Order No. 67727 5/12/78 § 75.1100-1
(Settled)
500.00
Order No. 67729 5/12/78 § 75.200 ••••••• (Settled)
500.00
Total Settlement and Contested Penalties in
Docket No. PIKE 79-125-P ••••••••••••••••••••••••• $3,550.00

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Total Settlement and Contested Penalties
in This Proceeding•••••••••••••••••••••••••••••• $12,965.00
(2) Respondent was the operator of the No. 3 Mine at all pertinent
times and, as such, is subject to the provisions of the Act and to the
regulations promulgated thereunder.
(3) For the reason given in my bench decision, supra (Tr. 198-199,
and Tr. 236-238), the Petition for Assessment of Civil Penalty in Docket
No. PIKE 79-19-P, should be dismissed to the extent that penalties are
sought for violations of Section 75.1710 cited in Notice Nos. 2 FIJ (7-8)
dated February 28, 1977, and 5 BHT (7-23) dated June 6, 1977.
(4) For the reason given in my bench decision, supra (Tr. 616), the
Petition for Assessment of Civil Penalty in Docket No. PIKE 79-125-P,
should be dismissed to the extent that a penalty is sought for a violation
of Section 75.200 cited in Order No. 66872 dated May 12, 1978.
(5) For the reason given in my -decision at page 20, supra, the
request of MSHA's counsel to withdraw the Petition for Assessment of Civil
Penalty in Docket No. PIKE 79-125-P, should be granted to the extent that
a penalty is sought for a violation of Section 77.202 cited in Order No.
66876 dated May 12, 1978.
WHEREFORE, it is ordered:

185

(A) The parties' request for approval of settlement is granted and
the settlement agreements submitted in this proceeding.are approved.
(B) Pursuant to the parties' settlement agreement and the bench decision rendered in this proceeding, respondent shall, within 30 days from
the date of this decision, pay civil penalties totaling $12,965.00 as set
forth in paragraph (1) above.
(C) MSHA's Petitions for Assessment of Civil Penalty filed in Docket
Nos. PIKE 79-19-P and PIKE 79-125-P are dismissed to the extent specified
in paragraphs (3) and (4) above.
(D) MSHA's request to withdraw the Petition for Assessment of Civil
Penalty in Docket No. PIKE 79-125-P is granted and the Petition is deemed
to have been withdrawn to the extent described in paragraph (5) above.

~e.~~

Richard C. Steffey
~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Robert A. Cohen, Esq., and Michael C. Bolden Esq., Trial Attorneys,
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arli~gton, VA 22203 (Certified Mail)
Garred O. Cline, Esq., Attorney for C.C.C.-Pompey Coal Company, Inc.,
Farley Building, Pikeville, KY 41501 (Certified Mail)

186

MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
52<13 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 2 S 1980
RIO ALGOM CORPORATION,

Application for Review
Applicant

v.

Docket No. DENV 79-347

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

Order No. 336661
January 29, 1979
Respondent

Lisbon Mine

DECISION
Appearances:

F. Alan Fletcher, Esq., Parson, Behle & Latimer,
Salt Lake City, Utah,for Applicant;
James Barkley, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Respondent.

Before:

Judge Stewart
PROCEDURAL BACKGROUND

The above-captioned application for review was brought by Applicant,
Rio Algom Corporation, pursuant to section 107(e) of the Federal Mine Safety
and Health Act of 1977 (hereinafter, the Act). Applicant sought review of
an order issued under section 107(a) of the Act.
The hearing in this matter was held on September 5, 1979, in Moab,
Utah. Applicant called two witnesses. Respondent called one witness and
introduced one exhibit. At the conclusion of the hearing, the parties
chose to make oral argument and waived their right to submit posthearing
briefs.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Inspector Ronald Beason issued the subject order in this case, Order
No. 336661, on January 29, 1979, in the course of an investigation of an
unintentional roof fall at Applicant's Lisbon Mine. The inspector issued
the order pursuant to section 107(a) of the Act and alleged a violation of
30 CFR 57.3-22. He described the relevant condition or practice as follows:
The 13 north drift 90 ft. from the 4th east pillar had
excessive weight. The 8 X 8 timbered sets were breaking the
cap on the second cap had a 3-1/4" gap in the center of the

187

cap. The plates on 25 split bolts in this area were stripped.
The 13 north & 19th west, a length of 37 feet, had. 5-8 x 8
sets of timber which had broken caps. The 13 north and 7th
West intersection had caved above the anchorage. This was
the full width of the drift and extended 25 feet in 13 north.
The mechanical bolts were pulled and several split bolts
broken. The plates on the split bolts from 7th west to
4 west along the 13th north haulage were stripped and the
area taking excessive weight.
The order of withdrawal encompassed the following areas: 13th North,
90 feet from 4th East pillar; 13 North 19 West for 37 feet; 13 North. and
7th West; 13 North from 7th West to 4th East.
The unintentional roof fall which gave rise to Inspector Beason's
investigation occurred on January 24, 1979, at 12:30 p.m. in the 18th North,
8th West drift. Approximately 40 feet of roof collapsed after breaking above
the anchorage point of its roof bolts. The fall had occurred near a shop
area in which a number of employees were eating lunch, but it did not result
in injury or death. Mr. Pearson, Applicant's Safety Supervisor, testified
that the main haulage and travelway to the area was blocked because of the
fall. Only the emergency access, designated as the SC manway, remained open.
Mervyn Lawton, the manager and president of Rio Algom Corporation as
well as the supervisor of the Libson Mine, was in the area of the fall at
the time of its occurrence. He instructed one crew of miners to remove
equipment from the are~· A second crew was instructed to continue driving
an entryway in an effort to open a new entrance into that working area. It
was estimated by Mr. Lawton that two additional blasts would be necessary to
complete the entryway. All miners were withdrawn from the area on the
following day, January 25, 1979, at 10 a.m., when it became evident that
more than two blasts were needed to accomplish the breakthrough.
All supervisory personnel were instructed to keep people out of the area
and a sign reading "No admittance, keep out" was placed on the haulage level
entering the SC manway. This finding was based on the testimony of both
Mr. Pearson and Mr. Lawton, notwithstanding the inspector's testimony that
he did not recall seeing a sign posting the area as closed.
The fall which occurred on January 24 was not reported to MSHA until
January 28. On the following day, Inspector Beason conducted his inspection of the area. He examined the first roof fall and discovered a second
fall at 13th North, 7th West. This second fall extended 25 feet for the
entire width of the entryway. As with the first fall, this break occurred
above the anchorage point of the roof bolts. The inspector observed both
mechanical roof bolts and split sets in the debris. Prior to the inspector's investigation, mine management had oeen unaware of the second roof
fall. It had occurred after the company had removed its miners from the
area.

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In the 13th North, 4th East drift, the inspector observed timbers
taking an inordinate amount of weight. These timbers measured 8 inches
by 8 inches and had been placed 6 feet apart for a distance of 60 feet.
Caps on approximately 10 of these timbers had been smashed by the weight
of the roof. Some of these caps had stress cracks and had been deflected
downward. The inspector estimated that 25 split sets in the area had been
stripped of their plates.
The inspector observed compression of caps and stripped plates in the
13th North, 6th West drift. He noted that there were five sets of affected
timbers. These timbers also measured 8 inches by 8 inches and had been
placed at 6-foot intervals. One post had split and stress cracks were
observed in some of the caps. Plates had been stripped from some split
sets and some of the mechanical bolts had been pulled.
The inspector also observed a number of split sets from which plates
had been stripped in the 13th North, 7th West to 4th West drifts.
Witnesses for Applicant generally corroborated the inspector's testimony relating to the conditions in those areas included in the order. Their
testimony established that, for the most part, the conditions observed on
January 29 did not exist on January 25 when the mining crew had been removed
from the area. In particular, the roof fall had not yet occurred in the
13th North, 7th West drift. Mr. Pearson, Applicant's safety supervisor, was
in the affected areas on Thursday morning. He stated that fewer plates had
been stripped from split sets than Inspector Beason noted later and that he
he did not observe signs of unusual compression of timber or caps.
All of the witnesses agreed that the roof fatls, the stripped plates
and the c_ompression of caps were evidence of ground movement in the area.
This movement occurred while the 13th North drift was being driven because
the area had been developed on an incline. The inspector believed that
retreat mining in the general area created additional pressure on the roof
in the affected area. Retreat mining was ongoing approximately 100 feet
straight through a pillar on the uphill side of the original roof fall.
"Imminent danger" has been defined in section 3(j) of the Act to mean
the "existence of any condition or practice in a coal mine which could reasonably be expected to cause death or s_erious physical harm before such
condition or practice can be abated." The Interior Board of Mine Operations
Appeals, with the affirmance of the Fourth and Seventh Circuits, has stated
that "an imminent danger exists when the condition or practice observed could
reasonably be expected to cause death or serious physical harm to a miner
if normal mining operations were permitted to proceed in the area before the
dangerous condition is eliminated. 11 Old Be.n Coal Corp. v. Interior Board of
Mine Operations Appeals, 523 F.2d 25, 32-33 (7th Cir. 1975), a:ff'g, 3 IBMA
252 (1974), Freeman Coal Mining Co. v. Interior Board of Mine Operations
Appeals, 504 F.2d 741, 745 (7th Cir. 1974), aff'g, 2 IBMA 197, 212 (1973);
Eastern Associated Coal Co. v. Interior Board of Mine Operations Appeals,

189

491 F.2d 277, 278 (4th Cir. 1974), aff'g, 2 IBMA 128, 136 (1973). In that
case the Board enumerated the following test to be used in determining
whether an immient danger existed:
Would a reasonable man, given a qualified inspector's
education and experience, conclude that the facts indicate
an impending accident or disaster, threatening to kill or to
cause serious physical harm, likely to occur at any moment
but not necessarily immediately? Freeman Coal Mining Co .• v.
Interior Board of Mine Operations Appeals, 504 F.2d 741,
743-4, (7th Cir. 1974), 2 IBMA 197, 212 (1973).
The conditions in the Lisbon Mine constituted an imminent danger under
all of the criteria that should be considered in making the determination.
Inspector Beason's finding was reasonable and proper. The conditions which
he observed clearly indicated that ground movement had occurred recently in
the area. There was nothing to suggest that this movement had ceased or
that the extant roof support was sufficient. In a period of 5 to 6 days
two unintentional roof falls had occurred and increased strain on the roof
support system was pervasively evident. During this time, roof conditions
had changed markedly. Moreover, only one route existed which allowed exit
from the area. Finally, the areas encompassed by the order were ones in
which miners would have worked regularly. If normal mining operations were
permitted to proceed, the conditions could reasonably have been expected
to cause death or serious harm.
The order was properly issued under
section 107(a) of the Act.
The issuance of a ·107(a) order of withdrawal was appropriate, notwithstanding the Applicant's prior voluntary removal of miners from the areas
covered by the order. The purpose of such an order is not only to cause
the withdrawal of miners, but to ensure that they remain out of the
affected areas until the condition is corrected. The Valley Coal Company,
1 IBMA 243, 248 (1972).
In issuing Order No. 336661 which alleged that an imminent danger
existed, the inspector also noted that there was a violation of 30
CFR 57.3-22. He testified that he believed the fourth sentence of the standard had been violated. This sentence reads as follows: Ground conditions
along haulageways and travelways shall be examined periodically and scaled
or supported as necessary." Toby Pearson, the safety supervisor at Rio Algom
Mine, testified that he conducted such inspections along the haulageways and
travelways in the affected area prior to the time that men were withdrawn.
He also stated that at that time there was no need to scale or support in the
areas encompassed by the order. The Interior Board of Mine Operations
Appeals, however, has noted "whether a condition or practice constitutes a
violation which was not intended to be and is not a controlling issue in a
proceeding to review an imminent danger wi~hdrawal order." Freeman Coal
Mining Corporation, 2 IBMA 197, 207-208 (1973).· A finding need not be made,
therefore, as to whether a violation of section 57.3-22 existed. Such a
finding would not be determinative of the issues in this case.

190

ORDER
Accordingly, it is ORDERED that the operator's application for review
is DISMISSED.

Forrest E. Stewart
Administrative Law Judge
Distribution:
F. Alan Fletcher, Esq., Parsons, Behle & Latimer, 79 South State
Street, P.O. Box 11898, Salt Lake City, UT 84147 (Certified Mail)
James Barkley, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294
(Certified l1ail)

191

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

JAN 2 9 1980
SUNBEAM COAL CORPORATION,

Contests of Citations
Contestant

v.

Docket No. PITT 79-210

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

Citation No. 229432
February 22, 1979
Respondent

Docket No. PITT 79-211
Citation No. 229433
February 22, 1979
Docket No. PITT 79-212
Citation No. 229434
February 22, 1979
Docket No. PITT 79-213
Citation No. 229362
February 22, 1979
Docket No. PITT 79-214
Citation No. 229363
February 22, 1979
Sunbeam Mine

DECISIONS
Appearances:

Bruno A. Muscatello, Esquire, Butler, Pennsylvania,
for the contestant;
Eddie Jenkins, Esquire, Arlington, Virginia, for the
respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern notices of contests filed by the contestant
(Sunbeam) on March 21, 1979, pursuant to section 105 of the Federal Mine

192

Safety and Health ·Act of 1977, seeking review of the captioned abated citations issued pursuant to section 104(a) of the Act, on the ground that the
unilateral "Significant and Substantial" findings made by the inspector on
the face of the citations was unreasonable, unjustified, and unwarranted.
Respondent filed its answers on April 6, 1979, asserting that the citations
were properly issued, that the violations existed as stated in the citations, and that the time fixed for abatement of the citations was reasonable and proper. At the same time, respondent filed motions to dismiss the
contests on the ground that the conditions cited were fully abated and the
citations terminated. In support of the motions, respondent cited a prior
Interior Board of Mine Operations Appeals' decision under the 1969 Act,
Reliable Coal Corporation, 1 IBMA 50, 59 (1971), and several judges' decisions pursuant to the 1977 Act, Helvetia Coal Company, PITT 78-322,
August 23, 1978; Monterey Coal Company, VINC 78-372, June 19, 1978; Peter
White Coal Mining Corporation, HOPE 78-371, June 16, 1978; and Itmann~~
Coal Company, HOPE 78-356, May 26, 1978. By order issued on May 9, 1979,
I denied respondent's motions to dismiss, and I did so on the basis of
the Commission's decision of May 1, 1979, in Energy Fuels Corporation v.
MSHA, DENV 78-410. Hearings were subsequently conducted in Pittsburgh,
Pennsylvania, on October 10, 1979, and the parties appeared and participated therein. Posthearing proposed findings, conclusions, and supporting
briefs were filed by the parties and the arguments presented therein have
been fully considered by me in the course of these decisions.
Issues Presented
1. Whether the contestant is entitled to immediate review of section
104(a) citations which have been abated and terminated.
2. Whether the citations which were issued in these proceedings constituted violations of the cited safety standards and whether they were
"significant and substantial" violations as found by the inspector.
Applicable Statutory Provisions
1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, effective March 9, 1978, 30 U.S.C. § 801 et seq.

2.

Section 104(a) of the Act provides as follows:

If, upon inspection or investigation, the Secretary or
his authorized representative believes that an operator of
a coal or other mine subject to this Act has violated this
Act, or any mandatory health or safety standard, rule, order,
or regulation promulgated pursuant to this Act, he shall,
with reasonable promptness, issue a citation to the operator.
Each citation shall be in writing and shall describe with
particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation,
or order alleged to have been violated. In addition, the

193

citation shall fix a reasonable time for the abatement of the
violation. The requirement for the issuance of a violation
with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act.
3.

Section 104(d) provides in pertinent part as follows·:

If, upon any inspection of a coal or other mine, an
authorized representative. of the Secretary finds that there
has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created
by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such violation
to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he
shall include such finding in any citation given to the-Operator under this Act. If, during the same inspection or any
subsequent inspection of such mine within 90 days after the
issuance of such citation, an authorized representative of
the Secretary finds another violation of any mandatory
health or safety standard.and finds such violation to be
also caused by an unwarrantable failure of such operator to
so comply, he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by such
violation, except those persons referred to in subsection
(c) to be withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the Secretary determines that such violation has been abated.
[Emphasis added.]
4.

Section 105(a) provides that:

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 assessment of
penalty. A copy of such notification shall be sent by mail
to the representative of miners in such mine. If, within
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 penalty, 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

194

of penalty shall be deemed a final order of the Commission
and not subject to review by any court or agency. Refusal
by the operator or his agent to accept certified mail containing a ~itation and proposed assessment of penalty under
this subsection shall constitute receipt thereof within the
meaning of this subsection.
5.

Section 105(d) provides that:

If, within 30 days of receipt thereof, an operator of a
coal or other mine notifies the Secretary that he intends to
contest the issuance or modification of an order issued under
section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this
section, or the reasonableness of the length of abatement
time fixed in a citation or modification thereof issued under
section 104, or any miner or representative of miners notifies
the Secret~ry of an intention to contest the issuance, modification, or termination of any order issued under section 104,
or the reasonableness of the length of time set for abatement
of 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 (in accordance with section 554 of
title 5, United States Code, but without regard to subsection
(a)(3) of such section), and thereafter shall issue an order,
based on findings of fact, affirming, modifying, or vacating
the Secretary's citation, order or proposed penalty, or
directing other appropriate relief. Such order shall become
final 30 days after its issuance. The rules of procedure
prescribed by the Commission shall provide affected miners
or representatives of affected miners an opportunity to
participate as parties to hearings under this section. The
Commission shall take whatever action is necessary to
expedite proceedings for hearing appeals of orders issued
under section 104.
Discussion
Docket No. PITT 79-210
Citation No. 229432, issued on February 22, 1979, citing a violation
of 30 CFR 77.1607(cc) reads as follows: "The unguarded No. 1 Wash Belt at
Sunbeam Preparation Plant was not provided with emergency stop devices or
cords along the walkway. The belt was energized and operating."
MSHA's Testimony and Evidence
MSHA inspector John E. Felichko testified that he has been a coal mine
inspector since 1977, but has 9 years of mining experience. His primary

195

duties entail the inspection of electrical circuits, and he attended a
13-week MSHA coal mine inspector's training course at Beckley, West Virginia,
and he has also had 4 weeks additional electrical training during the past
two summers. He confirmed that he issued the citation in question and stated
that he did so on the ground that the conveyor belt cited failed to have the
required emergency stop pull cord or similar device along the full length of
the belt walkway where employees are exposed to moving belt rollers and the
belt. The conveyor belt in question is an inclined belt which originates
inside the coal preparation plant and extends outside where it carries washed
coal to be loaded on railroad cars for shipment, and it was energized and
operating when he observed the violation.
• The inspector indicated that there is no type of emergency stop device
located anywhere along the conveyor belt except inside the coal preparation
plant where the control is located, and the belt posed a hazard to employees
because there is no means of stopping the belt in the event a person should
become entrapped either in the roller or belt. Employees, especially repairmen, clean, lubricate and repair the conveyor belt periodically. In the
event of an accident, the operators in the control room may be able to see
an employee on the conveyor belt, but this would depend on where the person
is located along the conveyor belt. Since there is a window in the control
room, if one were to look out, he may be able to determine whether an
employee is along the conveyor. belt before he starts it (Tr. 10-19).
Inspector Felichko testified that the citation was abated in good faith
and he believed the condition cited was serious because there was no means
to control the belt along the walkway. He identified a copy of a "gravity
sheet" (Exh. M-3) which he filled out at the time the citation issued, and
he stated that the person likely to be injured, as shown on that sheet, was
one man who he assumed would be along the belt performing his duties, but he
actually observed no one there at the time of the citation. Regarding the
"S & S" or "Significant and Substantial" finding which he marked on the
citation, he answered as follows when asked why he checked that box on the
citation form (Tr. 21):

Q. Thank you. When you checked significant and substantial what was going through your mind?
A.

The conditions surrounding the citation.

Q.

And?

A. And also that it is MSHA's method of recordkeeping
to determine whether hazard [sic] violations exist or not.
On cross-examination, Inspector Felichko testified that the inclined
conveyor belt is approximately 125 to 150 feet long, and the head roller
was about 25 feet above ground level. The walkway was composed of expanded
metal which has a guard on the outside edge facing the ground, and both
the belt and rollers were exposed. Although he looked out of the control

196

room window, he could not recall whether he could see the entire length of
the belt and did not take this fact into consideration when he cited the
violation. He made no inquiries as to whether anyone is required to be in
the area while the belt was running, and he observed no maintenance or
lubrication going on while the belt was running. In his experience, such
work is definitely not done while a belt is running. The only time someone
would come in contact with the belt would be if they were walking along one
side, or if the belt were shut from inside while someone was performing
maintenance and someone inadvertently started it up with no means to shut
it off. Although there is an alarm that is energized by hand before the
belt starts up, the b~lts do not run in sequence and can be started independently, and with the noise level of other running belts, it is possible that
one would not 'hear the alarm (Tr. 23-26).
Mr. Felichko stated that there is guarding along the right side of the
belt to prevent one from falling off the walkway to the ground below. He
stated that the violation was serious and that is why he marked the "S & S"
box on the citation form. He believes that all violations are serious, but
the question of whether all violations are "significant and substantial"
would depend on the circumstances involved. He confirmed that MSHA utilizes
the "S & S" findings to determine whether a pattern of violations exists.
When asked to explain his understanding of the term "significant and substantial," he answered as follows (Tr. 28): "To me significant and substantial means that the violation could be more hazardous. Whenever you check
that box, it is a more hazardous condition. It is hard to answer exactly
what it means."
Mr. Felichko stated that he was concerned about all of the moving parts
on the belt, i.e., rollers, belt, and belting, where a person could become
trapped, caught-:- or pulled in. The belting was exposed, the plant operates
year round, and one could slip or fall on the walkway, and while there is
spillage at times, he observed none on the belt or walkway in question
(Tr. 30). The required emergency stop device is not to prevent one from
being entangled in the belt, but only to stop the belt. He confirmed that
he issued two other citations the same day and he deemed those to be significant and substantial because they were of a serious nature (Tr. 31).
During the first inspection quarter of 1979, he issued approximately
35 citations, and only one of those was not a significant and substantial
violation because it dealt with recordkeeping. He is not aware of any
July 5, 1979, MSHA interpretative memorandum dealing with significant and
substantial violations (Tr. 34-36).
Mr. Felichko testified that while he was aware of injuries caused by
moving conveyor belts and rollers, he was not aware of any injuries resulting from a failure to provide an emergency belt shut-off device, and the
purpose of such a device is to deenergize the belt in the event someone
wants to shut it down or someone becomes entrapped (Tr. 36-37).

On redirect examination, Mr. Felichko identified a blank MSHA citation
form, and reading from the reverse side concerning the issuance of a significant and substantial citation, he read the following into the record

197

(Tr. 38): "By checking the significant and substantial box the inspector
has indicated that this violation could significantly and substantially
contribute to a health or safety hazard, and that this violation will be
considered in determining whether a pattern exists."
In response to bench questions, Mr. Felichko testified that the belt
in question moves "fairly fast," and he described its operation. The walkway was of a non-slip surface, and the handrailing on the right side was
there for someone to hold onto while walking up.the incline. The tail
roller was guarded, the head belt roller was guarded by location, and the
entire open-type belt was required to be guarded by either stop cords or
guards •.. A stop cord is a substitute for a guard, and while a guard would
physically prevent one from falling into the belt, a stop cord would give
him access to shut the belt off as he was falling in. Had a stop cord been
installed along the entire length of the belt, he would not have issued a
citation, and he considered the citation significant and substantial
because of the lack of such a cord. The walkway was in fairly good condition, and general periodic maintenance has to be performed on the belt and
the roller bearings should be greased once a day, but he does not know the
company's maintenance schedule. Even if he did, he would still have made a
finding that the violation was significant and substantial because of the
injury which would result from one getting caught in a belt (Tr. 40-49).
Contestant's Testimony and Evidence
Nicholas DiBiase, general manager, Sunbeam Coal Corporation, described
the belt conveyor in question as being on a 15-degree incline, and the belt
area which concerned the inspector was the last 30 feet of the conveyor.
The walkway in question was parallel to the ground and was not on the same
incline as the belt, and in fact, he described it as a standing work area
completely visible from the plant operator's station. He characterized the
belt as a slow 30-inch belt carrying 100 tons of coal a minute. Mr. DiBiase
indicated that he helps establish company policy regarding maintenance and
lubrication, and stated that this work is done at the beginning of the shift
before the plant is started or at the end or evening shift when the plant
is down. Maintenance and lubrication never takes place while the belt is
running, and no one is allowed near the walkway while the belt is running.
No one has any need to be at the belt and the two operators on duty are
at their stations (Tr. 51-56). If the operator observes someone on the
walkway, he is instructed to shut down, but he should be able to observe
anyone approaching the belt before he gets near it because there are 25
or 50 steps to climb to reach the belt area (Tr. 56). The shut-off device
was installed soon after the inspection and as soon as he could get an
electrician, and it was installed in a day and a half. The installation
of the device would still not prevent an accident (Tr. 57).

On cross-examination, Mr. DiBiase testified that 30 percent of the belt
is visible from the control room, and the catwalk area, which is the only
area where anyone could get near the.belt, is visible and the belt is
12 feet off the ground in some places, and one would need to use a ladder

198

and intentionally climb to reach the belt in those areas. If someone were
in the other 70-percent area of the belt, he could not. be seen if he were
caught in it. There are only two men in the plant and they both have
speakers for communication. The main switches are locked out at noon and
at the end of the shift (Tr. 59). He was aware of the fact that emergency
stop devices are required, but only where there are workers in the area,
and that is the way he interpreted the standard. In his view, the belt in
question does not require such a device (Tr. 61). However, he did as the
inspector requested and installed a stop cord. No one would walk up the
incline parallel to the belt since he would have no need to (Tr. 62). He
agreed that a stop cord along the belt would help prevent a further accident if the person caught in the belt was conscious enough to grab it (Tr.
64).
Mr. DiBiase drew a diagram of the belt area on a blackboard provided
in the courtroom and he stated that the walkway described by the inspector
did not run parallel to the belt, but rather, the area described as a
"walkway" was in fact a platform that· intersected the belt (Tr. 65; Exh.
ALJ-1). There is no walkway running adjacent to the full length of the
belt, and the walkway is parallel to the ground (Tr. 66). The two people
on duty are the only two assigned to the belt system. One main operator
stands at the top of the wash plant and controls all the conveyor belts
and the feeder area, and the second operator is inside the plant and he
controls the dryer and drag tank area. If one were to climb the ladder
off the platform, he would be exposed to some portion of the belt which
was an exposed unguarded portion where the platform intersects the belts
(Tr. 68). Greasing is performed by walking up the ladder, and the grease
lines come down from the head pulley so that the greaser can reach them
with a grease gun, but this is done when the belt is down (Tr. 69). Access
to the head pulley is by a ladder (Tr. 70). One can touch the conveyor
from the platform, and he could reach about 15 or 20 feet of the belt (Tr.
72). The platform structure has been in place for some 20 years (Tr. 74).
Inspector Felich~o was called in rebuttal and testified as to a diagram
which he believe depicts the location of the so-called walkway (Exh. M-3-a).
He described the area and indicated where the belt came from the plant, and
he agreed with Mr. DiBiase's description of the location of the platform
(Tr. 76-81). Mr. Felichko stated he remembered the unguarded portion of
the belt where the walkway was located did not have an emergency stop device
(Tr. 86).
Docket No. PITT 79-211
Citation No. 229433, issued on February 22, 1979, citing a violation of
30 CFR 77. 701, states as follows: "The 110 V light fused disconnect box
located in the shop of Sunbeam Preparation Plant was not frame grounded.
The light circuit was energized."

199

MSHA's Testimony and Evidence
Inspector Felichko confirmed that he issued the citation in question
after observing that a disconnect box which controlled the lights in the
shop area of the preparation plant was not frame grounded in that there
was no safety ground to the frame of the box. The box was located on the
inside of an outside wall of the shop, and it was energized because the
lights were on and the entrance of the preparation plant was wet and
muddy. There was no insulated mat where the switchbox was located, and
the purpose of the frame ground is to protect a person from electric shock.
He described a frame ground as a safety wire that carries shock currents
through the ground wire to the earth to protect against a shock hazard.
Although he did not measure the amperage to find out how much current was
involved, the circuit was energized because the fluorscent lights were on.
Based on the fact that the box frame was not properly grounded and the outer
insulation on the cables which entered the box was frayed, he believed this
to be a significant and substantial violation. In order for a person to be
shocked, the box must become energized under fault conditions which entail
several things such as dampness, a loose fuse, or physical damage. The
citation was abated by contestant installing a grounding conductor to the
box frame (Tr. 88-91).
The inspector believed the violation was serious because it presented
a potential shock hazard under· fault conditions. He believed it was significant and substantial because the fuse disconnect box was mounted on
a wooden board, the floor was wet and muddy, and the box was not frame
grounded. In the event someone touched the box while it was energized,
a potential shock hazard would·exist. Although he knows of no incidents
where such an ungrounded box resulted in an injury, he is aware of two
fatalities in 1978 involving low-voltage circuits, and in one case a person holding a hand-held paint sprayer that faulted out and did not have
a frame ground or double insulation was electrocuted. The other case
involved a welder who was electrocuted by a light bulb filament which
burst when he contacted it (Tr. 92-93).
On cross-examination, Inspector Felichko testified that the outer insulation on the cable was frayed but the insulation on the inner conductors
was in good shape. The box could possibly become energized if the fuse
loosened under the load. Although contestant was cited for improper
grounding, he did not issue a citation for substandard cable conduction.
With the floor being wet, and the absence of an insulation mat, an electrocution was likely to. occur, especially in light of improperly-grounded electrical equipment, and a person can easily get electrocuted with 110 volts
(Tr. 93-98).
In response to bench questions, the inspector conceded that he did not
test the amperage with a meter and his reason for not doing so was that
from his past experience there is more than ample amperage to cause a
fatality under fault conditions (Tr. 101).

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Docket No. PITT 79-212
Citation No. 229434, issued on February 22, 1979, citing a violation of
30 CFR 77. 513, states as follows: "The 110 V light fused disconnect box
located in the shop of Sunbeam Preparation Plant did not have an insulated
mat or a grounded metal plate at the same potential as the grounded metal,
non current carrying parts of the power switch box. The switch box was
energized."
MSHA's Testimony and Evidence
Inspector Felichko confirmed that he issued the citation in question
and he stated that section 77.513 required an insulated mat or a grounded
metal plate at the same potential as a noncurrent-carrying part of the electrical installation at each disconnect switchbox where there is a shock
hazard potential. The disconnect box in question was the same one cited
in the previous docket. The lack of an insulated mat, coupled with the
lack of a frame -ground, makes this violation more serious. The circuit was
energized and the floor was wet and muddy. The outer cable insulation was
frayed at the point where it enters the cable clamp. The violation was
abated by installing a piece of belting on a wooden pallet which created a
difference of potential between the earth and the box frame (Tr. 106-109).
Mr. Felichko confirmed that he indicated on his inspector's gravity
statement that "the occurrence of the event against which this cited standard is directed was probable," and he stated it was probable because the
frayed insulation on the outer cable jacket would possibly cause the box
to become energized. He marked the "S & S" box on the citation form
because he believed the violation was serious and thought it could contribute significantly and substantially to a health or safety hazard (Tr.
110-111).
Contestant's Testimony and Evidence

Mr. DiBiase testified as to both Citation Nos. 229433 and 229434, and
stated that the failure to frame ground the switchbox in question would contribute to a possible accident, but that it was not imminent. However,
the failure to install an insulated mat would not substantially contribute
to the cause and effect of a potential accident. He considers electrocution to be serious, and he indicated that he has operated power tools in
the past after removing the required ground, and knew that by doing this
he was placing his life and health in jeopardy. He agreed "pretty much"
with the inspector's testimony and did not dispute the fact that the box
was not frame grounded and that there was no insulated mat provided (Tr.
116-119).
Docket No. PITT 79-213
Citation No. 229362, issued on February 22, 1979, citing a violation of
30 CFR 77.205, states as follows: "A safe means of access was not provided

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and maintained to the working place in that the end of the walkway on the
third level of the Sunbeam Preparation Plant was not protected by a railing,
barrier, or other protective device."
MSHA's Testimony and Evidence
MSHA inspector James A. Magness confirmed that he issued the citation
in question citing a violation of section 77.205 on the ground that a safe
means of access was not provided and maintained to the working place in that
the end of the walkway on the third level of the preparation plant was not
protected by a railing, barrier, or other protective devices. The walkway
was approximately 40 inches wide, and while the lighting was not inadequate,
it was poor, but he could not be more specific since he did not use a light
meter. The east wall of the preparation plant was on one side of the walkway, and plant machinery on the other. He considered the violation to be
serious, and reading from the citation form, he defined a "significant and
substantial" violation as "[a] violation could significantly and substantially contribute to the health and safety hazard and that the violation
will be considered in determining whether a pattern exists." He believed
that an employee walking in the area could possibly fall off a 7-foot drop
at the end of the walkway to the next level. The walkway was level, and
there are access stairs or ladders from level to level. He observed no one
in the area during his inspection but indicated that it is possible that a
repairman would be in the area. The violation was abated by installing a
gate-type guard structure to prevent employ·ees from falling off the end.
There was a beam some 5 feet above the walkway running parallel to the end
of the walkway, but he observed nothing that one could grab onto to prevent
him from falling to the lower level. There were no warning devices of any
kind advising persons that the walkway would end by a drop to the next level
below, and he considers the violation serious and that it is
significant and substantial because it contributes to a safety and health
hazard (Tr. 120-129).
Mr. Magness confirmed that he marked "improbable" on the gravity portion of his inspector's statement, and he stated that the reason he did so
was the fact that while he observed no one in the area at the time of his
inspection, it was still significant and substantial because "it could
happen to anybody at any time." If one were to fall over the end of the
unguarded walkway, serious injuries could result (Tr. 130).
On cross-examination, Mr. Magness testified that the only written
directive he has received on the meaning of the term "significant and substantial" is the instruction printed on the back of the citation form. He
denied that he made the "S & S" finding with the intent or the possibility
of establishing a pattern of violations (Tr. 130-131). He candidly admitted
that he has received oral instructions to treat all violations as significant
and substantial (Tr. 130-135). Regarding the overhead beam at the end of
the walkway, Mr. Magness stated that it would not keep anyone from walking
off the end of the walkway. He did not discuss with anyone the purpose
for and the use made of the walkway in question, and he observed no safety
belts or lines in the area (Tr. 137).

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In response to bench questions, Mr. Magness testified that he considered the location cited a working place because the walkways are used to
support the machinery in the plant. He was concerned with subsection (e)
of section 77.205, and he would accept any type of a barrier as compliance
as long as it prevented one from going off the end of the drop-off. The
walkway was not a "communication travelway" frequently used by men to get
around the plant, but someone could possibly be there for maintenance purposes. Even if one were to go there only once a year, the fact that he
might fall off the end that one time makes it a significant and substantial violation. He believes that any violation which is going to create a
hazard to an employee is significant and substantial (Tr. 139-141).
Contestant's Testimony and Evidence

Mr. DiBiase described the overhead beam in question and stated that it
was part of the superstructure of the building and some 4-1/2 feet from the
walkway, shoulder height, and some 18 inches or 2 feet from the end of the
platform. One would have to dip or stoop under the beam to get to the end
of the platform. The platform is used to raise equipment up from the lower
levels for maintenance, and it is normally used when there is a major breakdown or repairs once a month, but in the last year it has not been used at
all. Safety belts are required to be worn at anytime persons are working
on an unguarded platform. He pelieved the lighting was sufficient because
it was not an area where an employee normally stands to work, and if he is
in the area working he will use a trouble light. When the plant is operating there is no reason for anyone to be working at the end of the platform. However, when maintenance is being performed or materials are being
hoisted, it sometimes is necessary to get near the end (Tr. 143-148).
On cross-examination, Mr. DiBiase testified that safety belts are provided anywhere work is performed in heights, and that he was aware of the
fact that there was no handrail at the end of the walkway. The reason for
not having one at that location is that equipment is moved on and off the
end of the walkway and such a rail would not provide enough clearance. The
walkway is used only for maintenance, and in the past this has been approximately once a month (Tr. 148-149).
Inspector Magness was recalled and testified that his interpretation
of the term "safe means of access" is that one can travel in a working area
in safety without falling off the end. Had there been a handrail, chain,
barricade, partition, etc., installed there, he would not have cited a violation. He indicated that he went to the edge of the walkway but he did
not hit anything overhead and he is 5 feet 11 inches tall. Abatement was
achieved by the installation of a guard railing (Tr. 151-156).
Docket No. PITT 79-214
Citation No. 229363, issued on February 22, 1979, citing a violation of
30 CFR 77 .400, states as follows: "A guard was not provided on the conveyor
drive head of the clean coal (stoke) belt at the Sunbeam Preparation Plant."

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MSHA's Testimony and Evidence
Inspector Magness confirmed that he issued the citation in question and
stated that the purpose of the conveyor belt guard is to protect an employee
from becoming entangled between the belt and metal roller which is powered
by an electric motor. There is little or no space between the belt and
roller, and at the entry of the belt over the drive head roller there is a
pinch point, but he could not state whether any employees would be at that
location. Although the belt was not in operation when he cited the violation, it was not disconnected. He considered the violation to be serious
and significant and substantial because people have been caught in similar
belts. To abate the citation, a metal and wire guard was installed around
the belt to substantially protect a man from being caught in it (Tr. 157160). Mr. Magness stated that he marked his gravity statement "improbable"
because the belt was not running and the mine foreman advised him that the
belt was seldom used since it was a special one used only for stoker coal.
Although there is always a chance of someone being caught in a belt,
in this case there was less chance of this event happening (Tr. 160).
On cross-examination, Mr. Magness stated that while he made no measurement, the end of the conveyor was within his extended reach of some 5 feet
11 inches off the ground and he could reach the drum and belt pinch point
by standing. One could not inadvertently be caught in the pinch point
unless they fell or were working on the parts, and he could recall no
extended greas~ fittings. If one were working on the equipment, it is
possible that the guards would be removed, and if he is working on a belt
roller the power will be disconnected completely. He observed no one working in the area on the day he issued the citation and he did not know how
frequently the belt was used (Tr. 162-167).
In response to bench questions, Mr. Magness stated that there was no
guard of any kind at the cited belt location, and if the motor had been
disconnected altogether there would be no violation because there would
not have been a functioning piece of equipment that could do damage to anyone. However, if it were merely deenergized he would still cite a violation.
He considered the violation to be significant and substantial
because the belt was functional and probably operated on previous occasions without a guard and someone could inadvertently catch their hand in
the pinch point (Tr. 167-170).
Contestant's Testimony and Evidence
Mr. DiBi~se testified that he did not believe one could inadvertently
become entangled in the conveyor belt in question, and in order for this
to happen, a person would have to make an effort to reach in or someone
flipped the switch on. However, the disconnect switch is pulled and
locked out whenever someone is working on the belt. The belt in question
is used infrequently or 5 to 10 percent of the time. He did not believe
the violation was significant and substantial because it is not an obvious
violation which presented an obvious risk of injury to a worker and the

204

plant had been inspected for years and no one ever pointed the violation
out to him in the past (Tr. 174-177).
On cross-examination, Mr. DiBiase stated that due to the fact that the
head pulley was located shoulder-high, he did not believe someone could
inadvertently fall into it even though he agreed with the inspector that
someone could trip on the adjacent walkway. The belt had guards installed
where he believed they were needed, and chain guards were installed in the
gear box to the drive motor on the head pulley. There was a physical metal
can-type guard covering the gear sprocket drive, but the conveyor belt was
not guarded (Tr. 171-181).
Respondent's Arguments
In its posthearing brief, MSHA argues that the term "significant and
substantial" is found in substantially identical form in two sections of the
1977 Act, namely, sections 104(d)(l) and 104(e)(l). Section 104(d)(l) deals
with citations and orders for violations of the Act, and in that context
"significant and substantial" refers to one element which must be present
for the proper issuance of a 104(d)(l) citation. Section 104(e)(l) also
deals with violations of mandatory health and safety standards, but in
particular with instances where a pattern of violations exists.

In analyzing the meaning of the term in either section, MSHA asserts
that it must be remembered that "significant and substantial" is really a
shorthand expression, and for that reason it must not be divorced from the
language which surrounds it. The term can only be effectively understood
by viewing it in the context in which it appears. In either section it
refers to a violation which is of "such nature as could have significantly
and substantially contributed to the cause and effect of coal or other
mine health or safety hazards***·" (Emphasis in original.) Once it
is appreciated that the term "significant and substantial" cannot be
treated in isolation, the importance of the surrounding language becomes
clear.
In support of its arguments, MSHA points out that the first observation
one makes in a contextual analysis is that the nature of the violation need
only be such as "could have" significantly and substantially contributed to
the cause and effect of a mine health or safety hazard. The term "could
have" suggests far less certainty than other language such as "would have"
infers. In this context, "could have" means "possibly, but not necessarily
have" significantly and substantially contributed to the cause and effect
of a mine health or safety hazard. Citing the case of Alabama By-Products
Corporation, 7 IBMA 85, November 23, 1976, MSHA states that the term "could
have" means less than probable, and that the violation need only significantly and substantially contribute to the cause and effect of a mine safety
or health hazard. That is, the cited violation need only contribute to the
hazard in terms of playing a role in its cause and effect and need not
cause the hazard. However, the nature of such contribution must be significant and substantial.

205

With respect to the meaning of the term "significant and substantial,"
MSHA maintains that as defined in Alabama By-Products, the phrase refers to
all violations except those which are purely technical or those where any
Tii]ury could result but there is only a remote or speculative chance o~
that injury coming to fruition. Citing the legislative history of the 1977
Act, MSHA quotes the following statement which it believes supports its
interpretation that the construction of the term "significant and substantial" applies to all violations except those that are purely technical:
"The Committee notes with approval that the Board of Mine Operations
Appeals has reinterpreted the 'significant and substantial' language in
Alabama By-Products Corp., 7 IBMA 85, and ruled that only notices for
purely technical violations could not be issued under Sec. 104(c)(l)."
S. Rep. No. 181, 95th Cong., 1st Sess., 31 (1977 Senate Report).
In summary, MSHA argues that applying the rationale of Alabama
By-Products, the significant and substantial contribution to the cause and
effect of a mine health or safety hazard means that the cited violation
could play a role in the creation or existence of a hazard, and that the
role it could play would be neither technical, remote nor speculative.
On that basis, two questions should be asked in making this determination:
1. Could the cited violation contribute to the cause and effect of a
mine health or safety hazard?
2. If the answer is yes, is the nature of the contribution such that
its role as contributor would be neither technical, remote, nor speculative?
An affirmative answer to both questions should mandate a finding that
the cited violation is "significant and substantial."
Contestant's Arguments
In its posthearing brief, contestant takes the position that the "significant and substantial" block used by MSHA on the citation form should only
be used when a condition exists that increases the likelihood of an accident
occurring. Since all standards are promulgated with the hope that a potential accident could be avoided, and since citations are issued for failure
to comply with the requirements of a standard, contestant asserts that the
additional finding by an inspector that the mere violation of a standard
would significantly and substantially contribute to a health or safety hazard is not justified in every case. Further, contestant argues that the
significant and substantial criteria should only be used when the likelihood of a mining accident is greatly increased by the failure of the operator to comply with the standard, and that the use of the criteria in a
section 104(a) citation is not justified since neither the Act nor MSHA's
regulations issued thereunder permit an inspector to unilaterally determine that an alleged violation could significantly and substantially contribute to the cause and effect of a mine safety hazard.

With respect to each of the citations issued in these proceedings,
contestant argues that the only reasonable interpretation of the criteria

206

of "significant and substantial" is one of cause and effect, and that a
simple "but for" test should be applied to the question. That is, "but
for" the absence of the protective device required by the cited safety
standard, would an accident have happened. Contestant maintains that the
seriousness of the injuries that might result from the failure to comply
with the criteria is not relevant to the question of whether a condition
could cause an accident. Since the inspector who issued the citations
testified that he had received instructions to mark all violations "significant and substantial," contestant concludes that an inspector is
given no discretion to determine this criteria on a case-by-case basis.
Additional arguments presented by the contestant with regard to each citation are discussed in my following findings and conclusions.
Findings and Conclusions
Reviewability of the Citations
Although MsHA's posthearing brief does not address the question of the
reviewability.of an abated section 104(a) citation, during the course of
the hearing MSHA's position was stated to be as follows (Tr. 7, 8):
MR. JENKINS: It is ~he Secretary's position that the
105 review which is permitted in the Federal Mine Safety and
Health Act of 1977 does not establish the right by the Applicant to contest the box marked S and S of a 104(a) citation.
The 105 review is for citations of proposed assessments.
1he Secretary believes that the Applicant has contested
neither, but contested MSHA's recordkeeping box designated
S and S.
We feel that 105(a) does not require a finding of significant and substantial. Any challenge to the significant
and substantial box on the citation is irrelevant and
immaterial to the review of a 104(a) citation.
Sand S is part of MSHA's recordkeeping system. An
inspector may find in the cases before court today, will
testify that these violations are serious, but the S and S
is part of the recordkeeping process to the finding of a
104(e) pattern.
Since there has been no finding of a 104(e) pattern, the
violation is a challenge to S and S and is premature and not
ripe for this proceeding. Similar to a probable cause by
a police officer, the S and S is MSHA' ·s recordkeeping
process, and is not reviewable until the adversary proceeding of a 104(e) is at issue.

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In this particular case there has been no charge, formal
charge of a 104(e). Therefore, this type of action within a
105 proceeding is inapplicable.
Energy Fuels Corporation v. MSHA, DENV 78-410, decided by the Commission on May 1, 1979, concerned a section 104(a) citation which contained
section 104(d)(l) findings of a "significant and substantial" and "unwar-.
rantable failure" violation. The question presented in that case was
whether an operator served with a citation for a violation that has been
abated may immediately contest the allegation of violation in that citation. The Commission answered the question in the affirmative. After a.
somewhat exhaustive discussion of the legislative history, during which it
noted that reliance on the uncertainties in the legislative history makes
reliance on it an uncertain matter, the Commission concluded that the safety
and health of the miners would not be adversely affected by immediate review
of an abated citation, and that any adverse impact on the interests of the
Secretary by immediate contestability were not entirely clear. In discussing the potential adverse impact on an operator which would result if he
were not afforded an opportunity for immediate review, the Commission at
several points in its discussion (pages 9 and 10) alluded to the fact
that the citation which was issued contained special findings under .section 104(d), and it seems clear that this fact influenced the Commission
in concluding that review of the citation was in order.
Helvetia Coal Company v. MSHA and Rochester & Pittsburgh Coal .Company
v. MSHA, Docket Nos. PITT 78-322 and PITT 78-323, decided by the Commission
on May 1, 1979, both involved review petitions seeking review of section
104(a) citations issued pursuant to the 1977 Act, and the conditions were
abated and the citations terminated at the time the review petitions were
filed. In addition, contrary to the instant proceedings in Sunbeam, neither
citation contained any special findings under sections 104(d) or (e) of the
Act. Judge Merlin dismissed the applications for review of the citations on
the ground that the citations were not reviewable until after the Secretary
proposed civil penalties. On October 11, 1978, the Commission granted discretionary review, and on May 1, 1979, reversed. and remanded the .. cases to
Judge Merlin and in so doing followed its decision of that same date in
Energy Fuels Corporation v. MSHA, Docket No. DENV 78-410.
In Helvetia and Rochester & Pittsburgh, the Commission took note of the
fact that in Energy Fuels, the 104(a) citation contained special findings
under section 104(d) and thus exposed the operator to a possible withdrawal
order before a penalty could be proposed. Although the citations in
Helvetia and Rochester & Pittsburgh had no special findings, the Commission
nevertheless held that permitting the immediate contests of the citations
would not "unduly burden others." Further, while commenting that it was
arguably unlikely that Helvetia and Rochester & Pittsburgh will need a
hearing before a penalty is proposed, and while taking particular note of
the fact that the citations in question were abated and contained no special
findings, the Commission nevertheless noted that it would be desirable for
a hearing to be quickly scheduled if the conditions cited often recur, if

208

abatement efforts are expensive, or if another case is being heard on the
same issue and early consolidation would be beneficial.
In view of the foregoing, I believe it is clear that the Commission
recognized that under certain circumstances and conditions, immediate review
of abated citations is in order. In Energy Fuels, the special findings made
under section 104(d) exposed the operator to a possible withdrawal order
before a penalty could be proposed. In Helvetia and Rochester & Pittsburgh,
while no special findings were made in connection with the section 104(a)
citation, the Commission was obviously concerned with circumstances such as
recurring violations, expensive abatement efforts, and consolidation of
similar issues.
In the instant cases, all of the citations were issued pursuant to section 104(a) of the Act. In addition to the narrative description of the
condition on the face of the ci-tation, which prompted the inspector to cite
the specific mandatory safety standard allegedly violated, the inspector
checked the "significant and substantial" box on the face of the citation
form and thus made the special findings in this regard referred to in
_
section 104(d) as an additional finding in support of the section 104(a)
citation.
Inspector Felichko indicated that the term "significant and substantial"
means a "serious violation," that when he checks the "S & S" box on the
citation form he considers the "conditions surrounding the citation," and
that the "S & S" finding "is MSHA's method of recordkeeping to determine
whether a violation was significant and substantial" (Tr. 21). He also
believes that all violations are serious but that the circumstances presented in each--case would determine whether a violation was significant
and substantial (Tr. 27). He defined the term as follows (Tr. 28): "To
me significant and substantial means that the violation could be more
hazardous. Whenever you check that box, it is a more hazardous condition.
It is hard to answer exactly what it means."
Inspector Magness testified that the only directive available to him as
to the meaning of "significant and substantial" is the statement imprinted
on the back of the citation form and that his intent was not to attempt to
establish a pattern of violations. He indicated that he issued the citations on the basis of "what I thought could possibly create a hazard" and
that his primary consideration when issuing citations is to prevent health
and safety hazards (Tr. 130-132). He candidly admitted that he has
received oral instructions that all health and safety violations are significant and substantial (Tr. 135-136).
It seems to me that Congress must have had something in mind when it
enacted the 1969 Act, and the 1977 Amendments thereto, and provided a varied
enforcement scheme which encompasses the issuance of citations and withdrawal
orders for violations of mandatory standards (104(a)); withdrawal orders for
failure to timely abate a violation (104(b)); unwarrantable failure citations and withdrawal orders (104(d)(l) and (2)); imminent danger orders

209

pursuant to section 107(a); and "almost" imminent danger citations and orders
pursuant to sections 107(b)(l) and (2). Unfortunately, the legislative
history of both the 1969 and 1977 Acts has little substance insofar as the
construction of the term "significant and substantial" is concerned. The
Board in the Alabama By-Products case simply read into the D.C. Circuit's
opinion in UMWA v. Kleppe a theory of construction on which the court had
nothing to say, and the Senate Committee simply gave it its blessing by
noting with approval the Board's conclusion that· "significant and substantial" does not include purely "technical" violations. From that point on,
it is obvious to me that MSHA has instructed its inspector force to mark
all citations "S & S" without any real considerations being given to the
facts and circumstances which prompted the inspector to cite a violation
in the first place. In short, MSHA has lifted from section 104(d) a construction of the term "significant and substantial" so as to apply it automatically to virtually all citations, transposed it to section 104(a), and
once a citation is issued, will use that section 104(a) citation as the
basis for again citing a mine operator with a pattern violation notice
which, in turn, will leave him vulnerable to a summary closure order if
another 104(a) citation is issued within 90 days of the pattern notice.
The "pattern of violation" provision of the 1977 Act is an additional
and exceptional enforcement tool available to MSHA. Section 104(e) requires
that an operator be given a notice that a "pattern of violations" exists
in his mine if the violations could "significantly and substantially" contribute to the cause and effect of a health and safety hazard. The issuance of a notice that a pattern of violations exists at the mine not only
alerts the mine operator of serious health and safety problems in his mine,
but also triggers a series of subsequent MSHA enforcement actions which
could result in the issuance of withdrawal orders and the closing down of
the mine. The chain of "pattern" citations and withdrawal orders can only
be broken if, pursuant to section 104(e)(3), an inspection of the entire
mine discloses no "significant and substantial" violations. However, if
any such citations are issued, the operator is deemed to have reestablished
a "pattern" and the mine reverts to the "chain" provisions of sections
104(e)(l) and (2).
It should be noted that while an unwarrantable failure citation issued
pursuant to section 104(d) must be of a "significant and substantial" nature
and must be the result of an operator's "unwarrantable failure" to comply,
°i"pattern" citation issued pursuant to section 104(e), need only be based
on a "significant and substantial" finding, and there is no requirement
that the violations establishing the pattern be the result of the operator 1 s "unwarrantable failure" to comply. Leg. Hist., S. Rep. No. 95-181,
95th Cong., 1st Sess., 33 (1977). Further-:-While section 104(a) contains
no specific provision for a finding of "significant and substantial" in
conjunction with the issuance of a citation under that section, section
104(d) authorizes an inspector to make such a finding in any citation given
to the operator under this Act. Thus, while it may be argued that the lack
of any specific mention of the term "significant and substantial" in section
104(a) is a clear indication that Congress did not intend to authorize such

210

a finding in connection with a citation issued under that section, but only
intended such a finding to be made in connection with unwarrantable failure
citations under subsection (d), the statutory language "in any citation
given to the operator under this Act," coupled with the legislative history
and judicial decisions dealing with the construction of "significant and
substantial," indicates Congressional approval of the practice of making
such findings in a section 104(a) citation. It also seems clear that
citations issued pursuant to section 104(a) which contain "significant
and substantial" findings by an inspector will serve as the basis for the
issuance of subsequent "pattern" citations pursuant to section 104(e),
and the reverse side of the MSHA citation form confirms this. The
pertinent portion of the form reads as follows: "NOTE: By checking the
significant and substantial box, the Inspector has indicated that this
violation could significantly and substantially contribute to a health or
safety hazard and that this violation will be considered in determining
whether a pattern exists."
Section 104(e)(4) of the Act mand~tes that the Secretary shall make
such rules as he deems necessary to establish criteria for determining when
a pattern of violations exists. As reported in a recent October 14, 1979,
issue of the Mine Safety and Health Reporter, published by the Bureau of
National Affairs, at page 233, MSHA's Director for Civil Penalty Assessments
indicated that MSHA is in the .Process of preparing guidelines for determining when a pattern exists. In light of MSHA's assertions in these proceedings that the marking of the "S & S" box on the citation form is merely a
"recordkeeping" function, and in view of the inspector's testimony that his
instructions are to check the "S & S" box on every citation which he issues,
the promulgation of such guidelines should be----oft"op priority in order to
assure even-handed enforcement by communicating the ground rules to those
mine operators being regulated under the Act. To do otherwise would subject an operator to serious sanctions and penalties based on arbitrary and
unreasonable actions by an inspector who automatically, and without any considered judgment, makes "findings" that a violation is significant and
subtantial by merely checking a box on a citation form. This becomes particularly critical, from a due process point of view, when the groundwork
for the issuance of pattern citations and withdrawal orders is begun by an
inspector who mechanically checks the "S & S" box for every section 104(a)
citation which he issues without any serious consideration being given to
all of the prevailing facts and circumstances which prompted him to make
that judgment in the first instance.
Following Energy Fuels and the foregoing discussion, I conclude that
since an operator is vulnerable to serious consequences resulting from an
"S & S" finding, the contestant is entitled to a review of both the fact
of violation and the inspector's additional finding of "significant and
substantial," notwithstanding the fact that the citations were abated. I
further conclude that the burden of proof is on the Secretary to establish
the existence or occurrence of the violation as well as the burden of producing facts to support the conclusion that the citations were significant
and substantial.

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Significant and Substantial
The "significant and substantial" provision found in section 104(d) of
the 1977 Act is identical to that found in section 104(c) of the 1969 Act.
In interpreting the meaning of this provision under the 1969 Act, the former
Interior Board of Mine Operations Appeals in Eastern Associated Coal Corporation, 3 IBMA 331 (1974), took a rather restrictive view of the test of "significant and substantial" when it held that a violation could significantly
and substantially contribute to the cause and effect of a mine safety or
health hazard if the evidence shows that the condition or practice cited
as a violation posed a probable risk of serious bodily harm or death,
3 IBMA 355. The Board noted that "if we thought that the hazard in question had only a speculative possibility of occurring, we would of course
conclude otherwise." (Emphasis added.)

In Zeigler Coal Company, 4 IBMA 139 (1975), the Board reexamined its
prior interpretation of the term "significant and substantial" and characterized it as a "phrase of art," 4 IBMA 154; and at 4 IBMA 156 stated as
follows:
If we were to give each of the words of that clause an
ordinary meaning, it would become a superfluous truism; by
definition, the violation of any mandatory standard could
significantly and substantially contribute to the cause and
effect of a mine safety or health hazard. However, since it
is plain that the Congress intended by these words to enact
one of several discriminating criteria designed to separate
those violations that merit 104(c) treatment from those that
do not, such a literal interpretation would be squarely at
odds with the apparent congressional intent. Such interpretation would render the phrase nugatory when the Board is
obliged under the usual norms of statutory construction to
give meaning to all the terms of a statute, Sutherland,
Statutes and Statutory Construction, § 46.06 (4th ed. 1973).
Commenting on its prior Eastern Associated Coal Corporation decision,
the Board stated further at 4 IBMA 160, 161:
Against this background and in order to give effect to
all the statutory terms, we held and still believe that the
clause "* * * could significantly and substantially contribute to the cause and effect of a mine safety or health
hazard * * *" is a phrase of art. The key word of that
clause is "hazard" which in our view refers not to just any
violation, but rather to violations posing a risk of serious
bodily harm or death. The part of the clause which reads
"* * * could significantly and substantially contribute to
the cause and effect * * *" states a probability requirement,
designed in our opinion, to prevent application of section
104(c) to largely speculative ''hazards."

212

In Alabama By-Products Corporation, 6 IBMA 168 (1976), the Board ·
affirmed a judge's decision vacating two section 104(c)(l) withdrawal orders
issued pursuant to the 1969 Act. The judge held that the underlying notice
was improperly issued because the violation cited did not pose a "probable
risk of serious bodily harm or death" and therefore did not meet the "significant and substantial" test previously laid down in Eastern and Zeigler.
In affirming the judge's decision, the Board rejected the UMWA arguments
that the definition of "significantly and substantially" should be given
its ordinary meaning which needs no definition and that the Board's construction of the term only deters the violation of a few of the mandatory
health and safety standards while the UMWA's "ordinary meaning" construction of the term would deter violations of many more mandatory standards.
In Alabama By-Products Corporation, 7 IBMA 85, November 23, 1976, the
Board reconsidered its prior determinations and construction of the term
"significant and substantial," and it did so on the basis of the D.C.
Circuit Court of Appeals' decision in International Union, United Mine
Workers of America (UMWA) v. Kleppe, 532 F.2d 1403 (1976), cert. denied,
sub nom. Bituminous Coal Operators' Association, Inc. v. Kleppe, 429 U.S.
858 (1976), reversing Zeigler Coal Company, supra, and holding that there
was no implied gravity prerequisite for the issuance of a section 104(c)(l)
withdrawal order. Noting the asserted narrowness of the court's holding
and its silence on the Board's. construction of "significant and substantial," the Board nevertheless held that the court's opinion had broader
implications and compelled a change in the Board's prior construction, and
it stated as follows at 7 IBMA 92:
The reason that the· appellate court's holding and supporting reasoning is important here is quite simply that our
construction of the "significant and substantial" language
in section 104(c)(l) was the product of virtually the same
reasoning that the Court rejected in reversing Zeigler. When
we construed that language to mean "probable risk of serious
bodily harm or death," we disregarded the plain semantical
meaning of that phrase in favor of a more restrictive reading
of the statutory words which fitted in with our overall concept of the enforcement scheme. The emphasis of the D.C.
Circuit on literalism which promotes wider operator liability
and its rejection of our holding and the underlying reasoning
in support thereof have undermined the "probable risk" test
completely. An honest reading of the Court's opinion thus
compels us to overrule Eastern Associated Coal Corp. * * *,
and Zeigler Coal Compa~y, * * * insofar as they validate
the "probable risk" test. [Footnote omitted.]
The Board's reconstructed interpretation of the term "significant and
substantial," as enunciated in its second Alabama By-Products' decision, is
set forth at 7 IBMA 94 as follows:
Section 104(c)(l), it should be recalled, mandates the
issuance of a notice when an inspector finds that "* * * a

213

violation is of such nature as could significantly and substantially contribute to the cause and effect of a mine
safety or health hazard** *·" Our position now is that
these words, when applied with due regard to their literal
meanings, appear to bar issuance of notices under section
104(c)(l) in two categories of violations, namely, violations posing no risk of injury at all, that is to say,
purely technical violations, and violations posing a source
of any injury which has only a remote or speculative chance
of coming to fruition. A corollary of this proposition is
that a notice of violation may be issued under section
104(c)(l) without regard for the seriousness or gravity of
the injury likely to result from the hazard posed by the
violation, that is, an inspector need not find a risk of
serious bodily harm, let alone of death. [Emphasis in
original.]
Commenting on the enforcement ramifications of its new interpretation,
the Board stated as follows at 7 IBMA 95:
The inspector's judgment as to whether a given violation
is "* * * of such nature as could significantly and substantially contribute to the cause and effect of a mine safety
or health hazard * * *" must be reasonable. The reasonableness of such a judgment is dependent upon the peculiar facts
and circumstances of each case, and it is up to an Administrative Law Judge initially, and the Board ultimately, to
determine whether an inspector was reasonable in so finding
in any given case.
We recognize that our interpretation today means that
federal coal mine inspectors have a very wide area of discretion to issue section 104(c) notices with all the attendant
liability to summary withdrawal orders which necessarily
follows upon even the most trivial of violations after issuance of such a notice. However, with the present controversy
is viewed in the reflected light cast by the D.C. Circuit on
section 104(c) in UMWA v. Kleppe, supra, no other conclusion
can sensibly be drawn.
Considering the foregoing judicial evolution of the construction of the
term "significant and substantial," I conclude and find that practically all
or most violations occurring at a mine are of a "nature as could significantly and substantially contribute to the cause and effect of a mine
safety or health hazard," except in two categories:
1. Those violations which pose no risk of injury at all, such as the
so-called "purely technical violations"; and

2. Those violations which pose a source of injury which has only a
remote or speculative chance of happening.

214

Further, it also seems clear that the term can apply to a violation
without regard to the seriousness or gravity of any injury for which the
violation poses a risk of occurrence, that is, there need not be a finding
that the violation poses a risk of serious bodily injury or death for the
term to apply.
The present construction of· the term "significant and substantial" as
it evolved in the aforementioned cases is favorably reflected in the legislative history of the 1977 Act as follows:
The Interior Board of Mine Operations Appeals has until
recently taken an unnecessarily and improperly strict view
of the "gravity test" and has required that the violation be
so serious as to very closely approach a situation of "imminent danger", Eastern Associated Coal Corporation, 3 IBMA
331 (1974).
The Committee notes with approval that the Board of
Mine Operations Appeals has reinterpreted the nsignificant
and substantial" language in Alabama By-Products Corp.,
7 IBMA 85, and ruled that only notices for purely technical
violations could not be issued under Sec. 104(c)(l).
The Board there held that "an inspector need not find a
risk of serious bodily harm, let alone death" in order to
issue a notice under Section 104(c)(l).
The Board's holding in Alabama By-Products Corporation
is consistent with the Committee's intention that the unwarranted failure citation is appropriately used for all violations, whether or not they create a hazard which poses a
danger to miners as long as they are not of a purely technical nature. The Committee assumes, however, that when
"technical" violations do pose a health or safety danger to
miners, and are the result of an "unwarranted failure" the
unwarranted failure notice will be issued.
S. Rep. No. 181, 95th Cong., 1st Sess., 31 (1977).
Docket No. PITT 79-210
Citation No. 229432, 30 CFR 77.1607(cc)
30 CFR 77.1607(cc) states as follows: "Unguarded conveyors with walkways shall be equipped with emergency stop devices or cords along their full
length."
The citation issued in this case charges that the No. 1 wash belt was
not provided with emergency stop devices or cords along the belt walkway.
The inspector testified that he issued the citation because the conveyor

215

belt in question is required to have an emergency stop pull cord along
the full length of the walkway where a person might be exposed to the moving belt rollers and the belting itself (Tr. 12). He described the belt
as being inclined from inside the plant to the outside, that it had an
inclined walkway along its full length from ground level to the head
roller, and that the purpose of the belt was to carry washed coal from
inside the plant to the outside where it vas loaded (Tr. 13). He estimated the length of the belt to be 125 to 150 feet, and indicated that the
walkway was to the right of the belt and that it was composed of expanded
metal, and while he looked out of the window of the control room inside
the plant, he could not recall whether he could see the entire belt length
(Tr. 23-24). He observed one around or on the belt, made no inquiries as
to whether anyone is required to be in the belt area while it was running,
and did not know whether the plant maintenance schedule provided for work
and lubrication of the belt while it was running (Tr. 25). The belt tail
roller was guarded, and the head roller was guarded by location because
the walkway only went up to the front of it (Tr. 41).
The unguarded portion of the belt which concerned the inspector consisted of the idler rollers and the belting itself (Tr. 42). The stop
cord was a suitable substitute for a physical guard, and a person would
have,access to the stop cord to shut the belt off as he was falling into
it (Tr. 43). He believed that under certain conditions it would be a
hardship on an operator to require a physical guard along the entire
length of the belt, but the installation of a stop cord is not such a
hardship (Tr. 44). The walkway was in fairly good condition and he
observed no spillage (Tr. 46).
Mine Manager DiBiase testified that the so-called belt "walkway" was
in fact a work area or platform which was parallel to the ground and did
not run along the same incline as the belt (Tr. 53, 58, 65, 66; ALJ Exh.
1). The exposed unguarded portion of the belt was at the point where the
inclined belt intersected the platform and the belt did not have a walkway
adjacent to its entire length (Tr. 66, 68). He assumed that it was what
the inspector had in mind when he cited the violation (Tr. 72).
In an attempt to resolve the discrepancy in the testimony concerning
the existence of the alleged conveyor belt walkway, Inspector Felichko was
recalled in rebuttal. His testimony in rebuttal reflects that the walkway
he previously described as being along the entire length of the conveyor
belt was in fact the platform area described by Mr. DiBiase (Tr. 80; Exh.
M-3(a)), and he indicated that the walkway was not adjacent and parallel
to the belt along its entire length (Tr. 81). MSHA's counsel believed
that the inspector had in mind a portion of the belt near the platform
and counsel conceded that his testimony was confusing (Tr. 82, 83). The
inspector added to the confusion when he indicated that the platform "ran
parallel with the belt," and that one "could walk along that platform and
be next to this belt for the full length of the walkway" (Tr. 84).

216

After careful review and consideration of the testimony presented with
respect to this citation, I conclude and find that the inspector was confused as to what he actually observed on the day the citation issued. While
his direct testimony clearly indicated to me that there was a walkway along
the entire length of the conveyor belt which was not guarded by a stop cord
and that he was concerned that someone walking that walkway could possibly
trip or fall into the belt and become caught in a belt idler roller, it
turns out that what he apparently had in mind was an exposed unguarded belt
area at a point where the belt intersected a work platform which was apparently used as a maintenance station and as a belt crossover point. Subsection (cc) of section 77.1607 requres the installation of stop cords on
conveyors equipped with walkways. In this case, I cannot conclude that the
conveyor belt in question had a walkway along its full length which exposed
anyone to a possible hazard, and I find that MSHA has not established that
this was in fact the case. I accept Mr. DiBiase's testimony as credible
and find that MSHA has failed to establish by any credible evidence that
the belt conveyor in question had a walkway. This being the case, I find
that the cited standard does not apply in the situation here presented and
the citation is VACATED.
Docket No. PITT 79-211
Citation No. 229433, 30 CFR 77..701
30 CFR 77. 701 provides as follows: "Metallic frames, casings, and
other enclosures of electric equipment that can become 'alive' through
failure of insulation or by contact with energized parts shall be
grounded by methods approved by an authorized representative of the
Secretary."
Contestant admitted that the shop area switchbox in question was not
frame grounded as charged in the citation (Tr. 118; Brief, p. 5). Its
defense is that another suitable means for grounding the box was used and
Mine Manager DiBiase's testimony that the absence of the frame ground would
not make the likelihood of an accident imminent. This defense is rejected.
Mr. DiBiase candidly admitted that the lack of a frame ground could contribute to a possible accident, and he also indicated that he had removed tool
grounds in the past even though he realized he was jeopardizing his health
and life (Tr. 116, 117). As for the alternative use of a ground to the
fuse, Mr. DiBiase admitted that this was not a proper ground.
The inspector testified that the 110-volt circuit was energized, there
was no insulation mat on the floor, and the floor was muddy and wet, and
coupled with what he described as "frayed" outer insulation of the cables,
he believed that there was a shock or electrocution hazard presented by the
condition cited. Under fault conditions, the box could become energized,
and the inspector believed that the lack of a frame ground, aggravated by
the frayed outer cable insulation, constituted a significant and substantial
violation. In addition, the box was located in a shop area by an entrance
door and one could just walk up to it (Tr. 89).

217

I find that MSHA has established the fact of violation and I also find
that the violation was not technical. To the contrary, I find that the lack
of a proper frame ground, coupled with the other prevailing conditions and
the proximity of the box at the entrance of the shop, presented a real shock
and electrocution hazard which could have resulted in serious injuries or
death and the absence of the frame ground increased the likelihood of those
events happening. Accordingly, I conclude that the violation was significant and substantial, and the citation is AFFIRMED.
Docket No. PITT 79-212
Citation No. 229434, 30 CFR 77.513
30 CFR 77.513 states as follows:
Dry wooden platforms, insulating mats, or other electrically nonconductive material shall be kept in place at
all switchboards and power-control switches where shock
hazards exist. However, metal plates on which a person
normally would stand and which are kept at the same potential as the grounded, metal, non-current-carrying parts
of the power switches to be operated may be used.
Contestant does not dispute the fact that there was no insulation at
the switchbox in question (Tr. 117; 118; Brief, p. 6). The box in question
was the same one for which the inspector issued Citation No. 229433 for
lack of a proper frame ground. The inspector believed the violation was
significant and substantial because the lack of an insulation mat aggravated or added to the potential for a shock or electrocution, particularly
in light of the prevailing conditions such as a wet and muddy floor, lack
of a frame ground on the box, and the frayed cable which he described (Tr.
107)~
I agree with the inspector and find that the violation has been
established and that it was significant and substantial and not technical.
The citation is AFFIRMED.
Docket No. PITT 79-213
Citation No. 229362, 30 CFR 77.205(e)
30 CFR 77.205(a) and (e) provide as follows:
(a) Safe means of access shall be provided and maintained to all working places.

*

*

*

*

*

*

*

(e) Crossovers, elevated walkways, elevated ramps,
and stairways shall be of substantial construction provided with handrails, and maintained in good condition.
Where necessary toeboards shall be provided.

218

*

The citation (Exh. M-12) charges the contestant with a violation of
subsection (a) of section 77.205 for failure to provide and maintain a safe
means of access to the working place in that the end of a third level walkway of the preparation plant was not protected by a railing, barrier, or
other protective device. By motion filed on December 12, 1979, 2 months
after the evidentiary hearing, MSHA seeks to amend its pleadings to reflect
a citation of subsection (e) rather than (a). In support of its motion,
MSHA asserts that the original citation described with particularity the
conditions and practices which constitutes a violation of subsection (e),
that contestant was in fact informed of the violation and is not unduly
prejudiced, and that Rule 15(b) of the Federal Rules of Civil Procedure
liberally permits a party to amend its pleadings to conform to the
evidence.
The inspector's testimony is somewhat confusing as to what he intended
to cite, and what he apparently had in mind was the fact that the surface
area of an elevated platform or balcony in the preparation plant did not
have a protective barrier or barricade installed at one end of the edge
so as to preclude someone from falling off the next level below for a
distance of some 7 feet. The area in question was approximately
3-1/2 feet wide, with a wall on one side and plant machinery on the other.
Access to the platform was gained by a stairway leading up from the level
below the area cited. Although subsection (e) specifically requires the
installation of handrails, the· inspector testified that he would have
accepted a removable chain rail, barricade, wire, boarding or a partition
as compliance, and he likened the hazard presented to someone walking off
the end of an apartment balcony (Tr. 138, 152). It seems obvious to me
from his testimony, and from the way the condition is described on the
face of the citation, that the inspector intermingled the requirements of
subsections (a) and (e). Stated another way, he apparently intended to
apply a standard which would read: "Safe means of access shall be provided and maintained to all working places, and in the case of elevated
walkways or working places where work is to be performed, compliance
shall be achieved by the installation of a handrail or other substantial
barrier." The problem with this is that the inspector's function is not
to rewrite safety standards. His function is to cite conditions or
practices which he believes constitutes a violation of a standard as
promulgated.
MSHA's counsel indicated that the substance of the citation deals
with subsection (e) in that the inspector was concerned that someone would
fall off the unprotected edge of the elevated platform where there was
room for him to walk up to the edge (Tr. 138, 150-151), and the inspector
attempted to clarify his position when he testified that:
My interpretation and understanding of safe means of
access is that a man can travel in that working area, and
a safe means of access to that working area is that he can
travel through that working area, and that is the whole
working area, in safety without falling off the end (Tr.
153).

219

The inspector conceded that there was a safe means of access up to
the point of the end of his trip when he falls off the edge (Tr. 153).
Contestant has filed no response or opposition to MSHA's motion to
amend, nor did it raise any objection at the hearing during the colloquy
and questioning of the inspector by the parties. As correctly pointed out
by MSHA in its motion, Rule 15(b) of the Federal Rules of Civil Procedure
is liberally construed, and in a case decided under the Occupational Health
and Safety Act, National Realty Company, Inc. v. Occupational Safety and
Health Review Commission, 489 F.2d 1257 (D.C. Cir. 1973), the court observed
as follows at 489 F.2d 1264:
So long as fair notice is afforded, an issue litigated
at an administrative hearing may be decided by the hearing
agency even though the formal pleadings did not squarely
raise the issue. This follows from the familiar rule that
administrative pleadings are very liberally construed and
very easily amended. The rule has particular pertinence
here, for citations under the 1970 Act are drafted by nonlegal personnel, acting with necessing dispatch. Enforcement of the Act would be crippled if the Secretary were
inflexibly held to narrow construction of citations
issued by his inspectors.
Anendments of pleadings to conform to the evidence is one thing, but
attempts to rewrite or reissue citations is another. On the facts here presented, it seems obvious that MSHA's motion seeks to amend the citation to
reflect a violation of subsection (e) rather than (a). In effect, MSHA is
seeking to issue a new citation so as to take advantage of the inspector's
oral testimony which I believe supports neither a violation of subsections
(a) or (e) of section 77.205. See Tilden Coal Company, 7 IBMA 57 (1976).
On the facts presented in this cas.e, it seems obvious to me that the
inspector confused the two subsections since the narrative portion of the
condition or practice as described on the face of the citation parrots the
exact requirements of subsection (a); that is, the inspector did not believe
a safe means of access was provided to the working place because of the lack
of a railing on the so-called "walkway." However, the evidence establishes
that the only access to the platform was by means of the stairway from the
lower level up to the platform and there is no evidence that the st~irway
was unsafe. Further, in response to a question as to whether the area
cited was a travelway used by personnel as a means of going through the
plant, the inspector answered "[i]t is not a communication travelway, a
necessary communication travelway," and he indicated that part of the reason for the structure being there was for maintenance purposes (Tr. 140).
The term "working place" is not further defined by Part 77. However,
I believe it is reasonable to conclude that since work is performed on the
platform area in question from time-to-time, that the area may be considered a working place for purposes of subsection (a) of section 77.205.
However, since I have concluded that MSHA has not established by any

220

credible evidence that access to that area was unsafe, I also find that a
violation of that subsection has not been established.
With regard to the application of subsection (e) of section 77.205, I
am not convinced by any credible evidence that the area cited was in fact a
walkway within the meaning and intent of the standard. The area cited was
more of a platform and work station used for maintenance purposes and it
was not a walkway used by employees to travel in and through the plant and
the inspector candidly admitted as much. It seems obvious to me that the
inspector attempted to apply a standard which simply, does not fit the
factual circumstances here presented. The protection of personnel from
falling from unprotected elevated work platforms and work stations appears
to be a most obvious situation which should be covered by a mandatory standard, and subsection (b) of section 77.205 comes close. However, that
standard only requires the area to be kept clear of stumbling or slipping
hazards and by including it among "travelway" standards, its application
becomes all the more confusing. It seems to me that if MSHA desires to
provide barriers and other protective devices to prevent personnel from
falling off an elevated platform, it should promulgate a precise standard
to cover that situation. In the instant case, the inspector attempted to
apply a walkway handrail requirement to a factual situation which I believe
is not covered by that requirement, and the inspector's acknowledgement that
he would accept chains, wires, .boards, or partitions as suitable barricade
substitutes for the handrail emphasizes my point. Subsection (e) on its
face only requires handrails, and what may suit one inspector as suitable
for compliance may not suit another. I find that MSHA has not established
that the area cited. was in fact a walkway within the meaning and intent of
subsection (e), and that it has not established a violation of that standard.
Since I have found that MSHA has failed to establish a violation of
either subsections (a) or (e) of section 77.205, its motion to amend its
pleadings is moot. However, even if I were to grant it, I would limit it
to permit MSHA to amend its pleadings to the extent that it wishes to cite
subsection (e) rather than (a), but would not permit MSHA to reissue or
reconstruct the condition or practice cited by the inspector. In the final
analysis, I conclude that MSHA is bound by the conditions or practices
described by the inspector on the face of his citation and that MSHA has
failed to establish a violation of either subsection (a) or (e). The citation is VACATED.
Docket No. PITT 79-214
Citation No. 229363, 30 CFR 77.400(c)
30 CFR 77.400 provides as follows:
(a) Gears; sprockets; chains; drive, head, tail, and
takeup pulleys; flywheels; couplings; shafts; sawblades;
fan inlets; and similar exposed moving machine parts which
may be contacted by persons, and which may cause injury to
persons shall be guarded.

221

(b) Overhead belts shall be guarded if the whipping
action from a broken line would be hazardous to persons
below.
(c) Guards at conveyor-drive, conveyor-head, and
conveyor-tail pulleys shall extend a distance sufficient to
prevent a person from reaching behind the guard and becoming caught between the belt and the pulley.
(d) Except when testing the machinery, guards shall be
securely in place while machinery is being operated.
Fact of Violation
1he citation (Exh. M-15), and the inspector's testimony (Tr. 157),
clearly indicates that the inspector cited subsection (c) of section 77.400
as the alleged violation. However, that subsection requires that guards
at conveyor heads be extended for a sufficient distance to prevent a person from reaching behind it and becoming caught between the belt and the
pulley. In my view, this subsection is applicable in a situation where
a guard is already installed but does not adequately provide protection.
The citation here was issued because no guard was provided at the drive
head location and contestant does not dispute this fact. Under the circumstances, the inspector should have cited subsection (a) which specifically
requires that head pulleys be guarded. However, the fact that he did not
does not in my view vitiate the citation. Although each subsection of section 77.400 constitutes a separate requirement and may serve as the basis
of separate citations, in this case, contestant is charged with one violation of section 77.400(c), and since the head pulley had no guard at all
installed, I believe the facts support a finding of a violation. In addition, contestant does not claim prejudice or surprise, knew what it was
charged·with, abated it, had an ample opportunity to present its defense,
and does not dispute the fact that the head pulley was not guarded. In
the circumstances, I find that MSHA has established a violation.
Was the Violation Significant and Substantial
MSHA's support for a finding of a significant and substantial violation
rests on its assertion that a worker's limb could become entangled between
the belt and metal roller, the existence of pinch points at the entry of
the belt over the drive head roller, and the inspector's belief that a
worker could reach straight into the drive head or inadvertently fall in
and seriously injure himself-:--Since the belt was operable, MSHA argues
that all that .was necessary to energize it was to push a button.
Mine Manager DiBiase testified that the belt in question is not frequently used, that one cannot inadvertently trip into the pinch point, and
that the belt is locked out with a lock when maintenance is being performed
(Tr. 174). He. installed guards where he believed they were required, and
in the 20 years the plant has been in operation and inspected, no one has

222

ever advised him that the location cited required a guard. He conceded
that the conveyor belt did not have a guard, but indicated that the gear
box sprocket to the drive motor on the head pulley was guarded and the
inspector agreed this was the case (Tr. 179-180).
Contrary to MSHA's assertion that a person could reach straight into the
drive head, the inspector's testimony is that one would have to stand and
extend himself into the area, that it was within his extended reach, and that
he is 5 feet 11 inches tall (Tr. 162). His testimony reflects that one would
have to deliberately reach into the pinch point while performing work there
and that one would not inadvertently get caught in the pinch point unless
he fell or tripped (Tr. 163-164). In addition, the gravity portion of the
inspector's statement prepared at the time the citation issued (Exh. M-17)
contains a notation by the inspector that the belt in question was "seldom
used" and that the occurrence of the event against which the cited standard
is directed was "improbable." He also indicated that one person would be
affected if the event occurred or were to occur, and he described the "event"
which would have to occur before an accident would have resulted from the
violation as "a miner would have to be caught between the belt and the
drive pulley." Further, as to the presence of any conditions or circumstances which might have increased the likelihood or severity of that happening, he indicated "none." When asked about these notations, the
inspector conceded that the belt was seldom used, that it was not in operation at the time the citation.issued, and he justified his significant and
substantial finding by the fact that "there was less chance of a man becoming involved, although there was always a chance of a man becoming involved,"
and the fact that "something could happen if someone inadvertently got their
hand caught in the pinch point" (Tr. 160, 170). MSHA's counsel conceded
that all citations issued for unguarded belt drive pulleys are not necessarilY:-and as a general rule, significant and substantial (Tr. 181).
After careful consideration of the inspector's testimony with respect
to this citation, I cannot conclude that the violation was significant and
substantial. To the contrary, based on the totality of the prevailing conditions at the time the citation issued, I find that the hazard presented
by the·unguarded conveyor drive head pulley presented a situation which at
most exposed miners to a remote or speculative possibility of an accident
occurring. The evidence establishes that chain guards were instaped at the
gear box head pulley drive, the gear sprocket guard was properly guarded,
contestant's evidence that the belt is locked out before maintenance is
performed is unrebutted, the belt was seldom used and was not in operation, the inspector believed that an injury was improbable, and the probability of someone falling into the precise pinch point, which was at an
extended vertical reach approximating 6 feet is ~emote. Under the circumstances, I conclude that the violation was not significant and substantial.
ORDER

All briefs and proposed findings and conclusions filed by the parties
have been considered, and to the extent they are inconsistent with the

223

foregoing findings and conclusions, they are rejected.
ings and conclusions made herein, IT IS ORDERED THAT:

In view of my find-

1. Citation No. 229432, February 22, 1979, issued in Docket No. PITT
79-210, is VACATED.
2. Citation No. 229433, February 22, 1979, issued in Docket No. PITT
79-211, is AFFIRMED as a significant and substantial violation.
3. Citation No. 229434, February 22, 1979, issued in Docket No. PITT
79-212, is AFFIRMED as a significant and substantial violation.
4. Citation No. 229362, February 22, 1979, issued in Docket No. PITT
79-213, is VACATED.
5. Citation No. 229363, February 22, 1979, issued in Docket No. PITT
79-214, is AFFIRMED, but the violation is not significant and substantial.

~-!~
Administrative Law Judge

Distribution:
Bruno A. Muscatello, Esq. , Brydon & Stephanian, 228 South. Main Street,
Butler, PA 16001 (Certified Mail)
Eddie Jenkins, Trial Attorney, Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Standard Distribution

. ft

•

224

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

FMC CORPORATION,

Notice of Contest
Applicant

v.

Docket No. WEST 79-419-RM

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

Citation No. 575882;
August 24, 1979
Respondent

FMC Mine

ORDER APPROVING SETTLEMENT

AND

DISMISSING THE PROCEEDING

On September 24, 1979, FMC Corporation (Applicant) filed a notice of
contest in the above-captioned proceeding pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815 (1978). Subsequent thereto, an answer was filed by the Mine Safety and Health Admin·istration (MSHA).
Pursuant to notices of hearing, the hearing convened at l p.m.,
Tuesday, November 6, 1979, in Salt Lake City, Utah, at which time counsel
for both parties apprised the Judge that a settlement had been negotiated
in the form of an agreement by the Applicant to withdraw its notice of
contest in return for certain stipulations.
The agreement was filed subsequent to the hearing i.n the form of a
document styled "stipulation of settlement and joint motion to approve
settlement agreement." This document, filed on January 7, 1980, states
the following:
Appli.cant and respondent, by and through their respective counsel of record, hereby stipulate to the following
facts and agree as follows:
1. On August 24, 1979, an inspector of the Mine Safety
and Health Administration ("MSHA"), United States Department
of Labor, issued Citation No. 0575882 to FMC Corporation for
violation of the He~lth and Safety Standard contained in
30 C.F.R. §57.4-29 ("Standard 4-29").
2. MSHA has not and does not in~end to interpret Standard 4-29 to require that fire extinguishi'ng equipment be
located within arm's length of a welder during all welding

225

and cutting operations regardless of the fire hazard, or lack
thereof, presented by all circumstances at the work site.
3. MSHA intends to use as a guideline for the enforcement of Standard 4-29 that fire extinguishing equipment
should be located within 50 feet of a welder during welding
and cutting operations unless the familiarity of the welder
with fire extinguishing equipment locations or an immediate
fire hazard peculiar to the work site warrants a closer
placement of the fire extinguishing equipment.
4. Citation No. 0575882 issued by MSHA Inspector
William W. Potter on August 24, 1979, was properly issued
based upon the facts then known to the inspector. Additional facts, however~ have subsequently been made known to
MSHA which demonstrate that FMC Corporation was in compliance with the application and guidelines described in
Paragraphs 2 and 3 above at the time the Citation was issued.
Therefore, it now appears that Citation No. 0575882 should be
withdrawn.
5. FMC Corporation hereby agrees to withdraw its Notice
of Contest.
6. MSHA hereby agrees to withdraw.Citation No. 0575882.
Based upon the foregoing Stipulation, the parties jointly
move the Commission to approve this Settlement Agreement.
Based on the representations made by counsel for the parties, it appears
that a disposition approving the settlement will adequately protect the
public interest. Accordingly, the settlement negotiated by the parties is
herewith APPROVED and the above-captioned proceeding is herewith DISMISSED.
____.,/,n.,_F

7:r-~-

Distribution:
Clayton J. Parr, Esq., and Robert G. Holt, Esq., Martineau, Rooker,
Larsen & Kimball, 1800 Beneficial Life Tower, 36 South State Street,
Salt Lake City, UT 84111 (Certified Mail)
James L. Abrams, Esq., Henry Mahlman, Esq., Office of the Solicitor,
U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900-15th Street,
NW., Washington, DC 20005 (Certified Mail)

Mr. Albert Battisti, P. O. Box 1315, Rock Springs, NY 82901 (Certified
Mail)

226

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

.JAN 2 9 1980
)
)

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

)

CIVIL PENALTY PROCEEDING

)

)
Petitioner,
v.

DOCKET NO. WEST 79-193-M

)

)

ASSESSMENT CONTROL NO. 04-00030-0500i

)

BRUBAKER-MANN, INCORPORATED,
Respondent.

)
)

MINE NAME:

BRUBAKER-MANN
QUARRY AND MILL

)

~~~~~~~~~~~~~~~~~~)

DECISION
APPEARANCES:
Linda R. Bytof, Esq. and Marshall P. Salzman, Esq., Office of Daniel W.
Teehan, Regional Solicitor, United States Department of Labor,
San Francisco, California,
for the Petitioner,
Jennifer Mann and William J. Mann, of Barstow, California, appearing pro se,
for Respondent.
Before:

Judge John J. Morris

Respondent is charged with failing to guard the edge of its elevated access
road, with failing to barricade a walkway, and with failing to require the use of
a safety belt at its grizzly dump.

Petitioner contends these conditions violate

standards promulgated under the authority of the Federal Mine Safety and Health
Amendments Act of 1977, (30 U.S.C. 801 et seq).
ISSUES
The issues are whether the violations occurred; whether the fines adversely
affect respondent; whether "instant.fines" are legally permissible and finally,
whether the California Occupational Safety and Health Administration (CAL-OSHA)
pre-emµ:sthe Federal Mine Safety and Health Administration (MSHA).

227

CITATION 376433
This citation alleges a violation of 30 CFR 56.9-22. lf
The uncontroverted evidence on this issue establishes the following facts.
1.

Respondent's front end loaders use an elevated access road, 25 to

30 feet wide, to reach a diesel pump (Tr 14-16, Rl).
2.

There is a 25 foot drop off within 6 feet of the pump (Tr 16~19).

3.

The roadway lacks berms or guards on its outer edge (Tr 15).

4.

A berm or guard consists of material such as rocks or dirt that

could restrain a vehicle from overturning or from rolling off of an elevated
roadway (Tr 15).
This citation should be affirmed.
Respondent asserts it abated the condition and that no accidents have occurred
on its road.

Further, respondent contends the compliance officer admitted being

unfamiliar with the safety devices on the truck.
I reject these arguments.
Abatement of a violation is an element to be considered in assessing a penalty
under the Act, '!:_/ but subsequent abatement cannot excuse prior noncompliance.
The mere fact that no accidents have occurred is not dispositive of whether
respondent violated the standard.

The purpose of a safety regulation is to prevent

the first accident, Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864
(10th Cit., 1975).

lf The standard provides as follows:
56.9-22 Berms or guards shall be provided on the outer bank of
elevated roadways.
'!:_/

Section llO(i), 30 U.S.C. 820(i).

228

Respondent's argument concerning safety devices on the vehicles is likewise
rejected.

Guardrails would be a safety feature completely apart from any safety

devices on the truck.
CITATION 346434
This citation alleges a violation of 30 CFR 56.11.2. 'l./
The evidenc.e is conflicting and I find the following facts on this citation.
5.

Respondent's bulk tank is constructed from an old railroad car; it

sits 35 feet high (Tr 22-23, R-2).
6.

There was no reason for anyone to be on the top of the bulk tank;

the operator diverts materials from a guarded railed platform (Tr 54-55).
7.

Respondent's president had never seen an employee on top of the

tank (Tr 56).
This citation should be vacated.

There is sufficient evidence in petitioner's

case to infer that workers used the walkway (Tr 27-28), but this directly conflicts
with the testimony of the quarry operator.

Inasmuch as the operator should be more

.familiar with his company's work activities, I find his testimony more credible
than that of the inspector.
Petitioner's post trial brief argues those facts most favorable to his
position.

However, as indicated, I have rejected those facts for the reasons

stated.

]./

The standard provides as follows:
56.11-2 Crossovers, elevated walkways, elevated ramps, and sta.irways
shall be of substantial construction provided with handrails, and
maintained in good condition. Where necessary, toeboards shall be
provided.

229

CITATION 376435
This citation alleges a violation of 29 CFR 56.15-.5. !!_/
The evidence is uncontroverted.

apart.

8.

A front end loader moves limestone to the grizzly dump (Tr 30, R3, R4).

9.

A set of grizzlies are rails 7 to 8 feet long and set 13 1/4 inches

The grizzlies are 4 to 5 feet above a conveyor which moves material (Tr 30-31).
10.

A worker, without a safety belt and life lines, pushes the rock

through the grizzly dump opening.

If the pieces are too large, the worker. breaks

them up with a sledge hammer (Tr 30).
11.

If a person fel~ through the grizzlies, he would fall onto a

conveyor moving toward a crusher (Tr 31).
This citation should be vacated.

The gravamen of this citation revolves on th~

single issue of whether a worker could fall through the 13 1/4 inch grizzly opening.
The evidence is in conclusory form.

Petitioner's evidence show that a normal

size worker could fall through this space (Tr 31, 71); however, respondent shows
that the crusher operator could not fall through the opening (Tr 63).
is at best evenly balanced.

The evidence

Accordingly, the petitioner has not sustained his

burden of proof.
CIVIL PENALTIES
Respondent contends that harassment, fines, paperwork, and the like, will make
it so costly to produce its product that it can no longer remain in business. 1/
Further, respondent contends

"instant fines" are unjust.

!±) This standard provides as follows:
56.15-5 Safety belts and lines shall be.worn when men work where there
is danger of falling; a second person shall tend the lifeline when bins,
tanks, or other dangerous areas are entered.

11 The.proposed penalty for the citation not vacated is $84.

230

I reject these arguments.
its "harassment" argument.

Respondent presented no evidence in support of

The inspection appears to be of a rout.ine nature to

which members of the regulated industry are subjected.
In addition, the imposition of civil penalties in furtherance of the congressional policies is generally constitutional.

Frank Irey, Jr., Inc. v. OSHRC

519 F.2d 1200 Cert'granted-affirmed 97 S. Ct. 1261, 430 U.S.C. 442.
Respondent alleges the impos-ition of "instant fines" is unjust.

Respondent's

views overlook the pertinent provisions of the Federal Mine Safety and Health
Amendments Act of 1977.

Under Section llO(i) ~/ the Commission has the authority

to assess "all civil penalties" provided in the Act.

The "instant fines" referred

to by the respondent are, in law, merely proposals of MSHA.

CAL-OSHA JURISDICTION
Respondent's contention that the California Occupational Safety and Health Act
pre-empts the Mine Safety and Health Act lacks merit.
CAL-OSHA derives its authority from the Federal Occupational Safety and Health
Act (29 U.S.C. 651 et seq).

That legislation applies generally to employers

engaged in a business affecting conunerce.

29 U.S.C. 652(5).

The Federal Mine Safety and Health Act derives its authority from the Federal
Mine Safety and Health Amendments Act of 1977.

30 U.S.C. 801 et~·

The latter

Act defines in part a "coal or other mine" as an area of land from which minerals
are extracted.

30 U.S.C. 802(h)(l).

Inasmuch as the Federal Mine Safety Act is more specific as it relates to
miners, it is applicable over the more general statute.

§}

30 u.s.c. 820(i)

231

FINDINGS OF FACT
I find the facts as outlined in paragraphs 1 through 11 of this decision.
CONCLUSIONS OF LAW.
1.

Respondent violated 30 CFR 56.9-22 and Citation 376433 should be

affirmed (Facts 1, 2, 3, 4).
2.

Petitioner failed to prove a violation of 30 CFR 56.11-2 and

Citation 346434 should be vacated (Facts 5, 6, 7).
3.

Complainant failed to prove a violation of 30 CFR 56.15-5 and

Citation 376435 should be vacated (Facts 8, 9, 10, 11).
Based on the foregoing findings of fact and conclusions of law, I enter the
following:
ORDER
1.

Citation 376433 and the proposed penalty of $84 are affirmed.

2.

Citation 346434 and all penalties therefor are vacated.

3.

Citation 346435 and all penalties therefor are vacated.

Distribution:
Ms. Linda R. Bytof, Esq.
Mr. Marshall P. Salzman, Esq.
Office of the Solicitor
U. S. Department of Labor
Room 10404 Federal Building, Box 36017
450 Golden Gate Avenue
San Francisco, CA 94102
Mr. William J. & Ms. Jennifer Mann
Brubaker-Mann, Incorporated
30984 Soapmine Road
Barstow, CA 92311
232

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
520 3 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 3 O 1900
Civil Penalty Proceedings

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

Docket No. BARB 79-219-PM
A/O No. 09-00231-05001

Petitioner
v.

Docket No. BARB 79-280-PM
A/O No. 09-00231-05003

FREEPORT KAOLIN COMPANY,
Respondent

Docket No. BARB 79-281-PM
A/O No. 09-00231-05004
Docket No. BARB 79-282-PM
A/O No. 09-00231-05002
Griffin Mi 11
DECISION
Appearances:

Thomas P. Brown IV, Esq., W. Thomas Truett, Esq., Office of
the Solicitor, U.S. Department of Labor, for Petitioner;
Gene B. Strauss, Personnel Manager, Freeport Kaolin Company,
Gordon, Georgia; and Alexander E. Wilson III, Esq., and
Thomas J. Hughes, Jr., Esq., Jones, Bird & Howell, Atlanta,
Georgia, for Respondent.

Before:

Judge Cook

I.

Procedural Background

The Mine Safety and Health Administration (MSHA) filed petitions for
assessment of civil penalty against Freeport Kaolin Company (Freeport) in
the above-captioned cases pursuant to section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.9. § 820(a) (1978) (1977 Mine Act).
The petition in Docket No. BARB 79-219-PM was filed on January 17, 1979.
The petitions in the remaining cases were filed on February 9, 1979.
Freeport filed its answer in Docket No. BARB 79-219-PM on February 21,
1979, and filed answers in the remaining cases on March 12, 1979.
An order was issued on June 8, 1979, consolidating the above-captioned
cases for hearing and decision. Pursuant to notice of hearing issued on
June 5, 1979, a hearing on the merits was conducted on June 21 and June 22,
1979, in Macon, Georgia. Representatives of both parties were present and
participated. During the course of the hearing, the representatives of the
parties informed the undersigned Administrative Law Judge that a settlement

233

had been reached ·as relates to three of the alleged violations in Docket No.
BARB 79-281-PM and as relates to five of the alleged vio.lations in Docket
No. BARB 79-282-PM. The motion to approve settlement pertaining to those
eight alleged violations was filed on October 22, 1979. A decision and
order approving the proposed settlements is included herein.
A schedule for the submission of posthearing briefs was agreed upon at
the conclusion of the hearing. The original briefs were to be filed simultaneously by both parties on August 22, 1979, with reply briefs due on
September 6, 1979. On August 21, 1979, counsel for the Respondent requested
a 30-day extension of time from August 22, 1979, for the filing of its
brief, which request was granted by an order dated August 22, 1979. Under
the revised schedule, both parties were accorded until September 21, 1979,
to file their briefs, with reply briefs due on October 5, 1979. MSHA and
Freeport filed their posthearing briefs on September 24, 1979, and
September 25, 1979, respectively. No reply briefs were filed. The final
filing of information necessary to consider approval of settlement in
Docket Nos. BARB 79-281-PM and BARB 79-282-PM occurred on December 27, 1979.
II.

Violations Char~ed
A.

Docket No. BARB 79-219-PM

Citation No.

Date

30 CFR Standard

96161

July 20, 1978

55.12-16

B.

Docket No. BARB 79-280-PM

Citation No.

Date

96162
96173
96174
96179
96181
96184

July 20, 1978
July 25, 1978
July 25, 1978
July 26, 1978
July 26, 1978
July 26, 1978

c.

30 CFR Standard
55 .• 14-26
55.14-1
55.12-30
55.12-34
55.14-6
55.12-30 ];./

Docket No. BARB 79-281-PM

Citation No.

Date

96191
96194
96200
97202
97205

July 26, 1978
July 26, 1978
July 26, 1978
July 27, 1978
July 27, 1978

30 CFR Standard
55.14-1
55.12-30*
55.14-8(b)*
55.12-34*
55.4-18

1/ During the hearing,.the Judge granted MSHA's motion to withdraw the
petition for assessment of civil penalty as relates to Citation No. 96184,
·July 26, 1978, 30 CFR 55.12-30 (Tr. 258).

2 34

D.

Docket No. BARB 79-282-PM

Citation No.

Date

30 CFR Standard

96145
96149
96398
96399
96156
96158
96159
96160

July 18, 1978
July 18, 1978
July 18, 1978
July 18, 1978
July 19, 1978
July 19, 1978
July 20, 1978
July 20, 1978

55 .11-2*
55.14-1*
55.20-3*
55.20-3
55.14-1*
55.14-1*
55.17-1
55.17-1

[NOTE: Citations accompanied by an astPrisk are P-ncompassed in the
October 22, 1979, motion to approve settlement.]
III.

Evidence Contained in the Record
A.

Stipulations

At thP- commencement of the hP-aring, the parties entered into stipulations which are set forth in the findings of fact, infra.
B.

Witnesses

MSHA called as its witnesses MSHA inspector Spencer Lindbeck; MSHA
supervisory inspector Reino Mattson; and Bruce Dial, an MSHA employee who
accompanied Inspector Lindbeck on his July 1978, inspection of Freeport as
a trainee.
Freeport called as its witnesses Ronnie D. Amerson, a mechanic's helper
for Freeport at the time of the hearing, and who had been the Nos. 8 and 9
dryer operator on July 20, 1978; Paul H. Bacon, vice president and general
manager of Freeport at the time of the hearing, and manager of production
and shipping in July 1978; William Wharton, Freeport's supervisor of safety
and health; Ray Crumbley, Freeport's manager of production and shipping at
the time of the hearing, and production superintendent of section No. 1 in
July 1978; L. E. Scandlyn, Freeport's maintenance superintendent;·and
James V. Turner, Jr., the president of Welding Supply and Service Company,
Inc.
C.

Exhibits

1.

MSHA introduced the following exhibits into evidence:

M-1 is a computer printout prepared by the Office of Assessments
listing the history of previous violations for which Freeport had paid
assessments beginning July 27, 1976, and ending July 27, 1978.

235

M-2 is a computer printout prepared by the Office of Assessments
listing the history of previous violations for which Freeport had paid
assessments beginning July 20, 1976, and ending July 20, 1978. '!:./
M-3, page 1, is a copy of Citation No. 96161, July 20, 1978,
30 CFR 55.12-16.
M-3, page 2, is a copy of the inspector's statement pertaining to
Citation No. 96161.
M-4, page 1, is a copy of Citation No. 96173, July 25, 1978,
30 CFR 55.14-1.
M-4, page 2, is a copy of the termination of Citation No. 96173.
M-4, page 3, is a copy of the inspector's statement pertaining to
Citation No. 96173.
M-5, page 1, is a copy of Citation No. 96162, July 20, 1978,
30 CFR 55.14-26.
M-5, page 2, is a copy of the termination of Citation No. 96162.
M-5, page 3, is a copy of a modification pertaining to Citation
No. 96162.
M-5, page 4, is a copy of the inspector's statement pertaining to
Citation No. 96162.
M-5, page 5, is a copy of a modification of M-5, page 3.
M-6, page 1, is a copy of Citation No. 96174, July 25, 1978,
30 CFR 55.12-30.
M-6, page 2, is a copy of the termination of Citation No. 96174.
M-6, page 3, is a copy of the inspector's statement pertaining to
Citation No. 96174.
M-7, page 1, is a copy of Citation No. 96179, July 26, 1978,
30 CFR 55.12-34.
M-7, page 2, is a copy of the termination of Citation No. 96179.
2/ All entries on Exhibit M-2 also appear on Exhibit M-1. All of the
-;iblations recorded thereon occurred in July of 1978. Accordingly, the
exhibits confirm the parties' stipulation that no evidence exists establishing a history of prior violations.

236

M-7, page 3, is a copy of the inspector's statement pertaining to
Citation No. 96179.
M-8, page 1, is a copy of Citation No. 96181, July 26, 1978,
30 CFR 55.14-1.
M-8, page 2, is a copy of the termination of Citation No. 96181.
M-8, page 3, is a copy of the inspector.' s statement pertaining to
Citation No. 96181.
M-9, page 1, is a copy of Citation No. 96184, July 26, 1978,
30 CFR 55.12-30.
M-9, page 2, is a copy of the termination of Citation No. 96184.
M-9, page 3, is a copy of the inspector's statement pertaining to
Citation No. 96184.
M-10, page 1, is a copy of Citation No. 96191, July 26, 1978,
30 CFR 55.14-1.
M-10, page 2, is a copy of the termination of Citation No. 96191.
M-10, page 3, is a copy of the inspector's statement pertaining to
Citation No. 96191.
M-11, page 1, is a copy of Citation No. 97205, July 27, 1978,
30 CFR 55.4-18.
M-11, page 2, is a copy of the termination of Citation No. 97205.
M-11, page 3, is a copy of the inspector's statement pertaining to
Citation No. 97205.
M-12, page 1, is a copy of Citation No. 96399, July 18, 1978,
30 CFR 55.20-3.
M-12, page 2, is a copy of the termination of Citation No. 96399.
M-12, page 3, is a copy of a m~dification of M-li, page 2.
M-12, page 4, is a·modification of M-1.2, page 3.
M-12, page 5, is a copy of the inspector's statement pertaining to
Citation No. 96399.
M-13, page 1, is a copy of Citation No. 96159, July 20, 1.978,
30 CFR 55.1.7-1.
M-13, page 2, is a copy of the termination of Citation No. 96159.

237

M-13, ·page 3, is a copy of the inspector's statement pertaining to
Citation No. 96159.
M-14, page 1, is .a copy of Citation No. 96160, July 20, 1978,
30 CFR 55 .17-1.
M-14, page 2, is a copy of the termination of Citation No. 96160.
M-14, page 3, is a copy of the inspector's statement pertaining to
Citation No. 96160.
2.

Freeport introduced the following exhibits into evidence:

0-1 is a drawing of a drum dryer.
0-2 is a letter concerning lock-out procedures established for
Freeport's production and shipping department.
0-3 is a photograph.
0-4 is a photograph.
o-5 is an engineering drawing.
o-6 is a photograph.
0-1 is a photograph.
0-8 is a photograph.
0-9 is a booklet entitled "Welding, Cutting & Heating Guide. II
0-10 is a gauge.
0-11 is a photograph.
0-12 is a photograph.
0-13 is a photograph.
3.
IV.

X-1 is a drawing.

Issues

Two basic issues are involved in the assessment of a civil penalty:
(1) did a violation of the Act occur, and (2) what amount should be assessed
as a penalty if a violation is found to have occurred? In determining the
amount of civil penalty that should be assessed for a violation, the law
requires that six factors be considered: (1) history of previous violations; (2) appropriateness of the penalty to the size of the operator's

238

business; (3) whether the operator was negligent; (4) effect of the penalty
on the operator's ability to continue in business; (5) gravity of the violation; and (6) the operator's good faith in attempting rapid abatement of the
violation.
V.

Opinion and Findings of Fact
A.

Stipulations.

1. Between July 17, 1978, and July 27, 1978, the Respondent, Freeport
·Kaolin Company, was the operator of a kaolin mine in the State of Georgia
known as the Griffin Mine, and with accompanying mills known as the Griffin
Mill and the Savannah Mill. In addition, Freeport operates a research lab
at the same location (Tr. 4).
2. Between July 17, 1978; and July 27, 1978, Freeport was subject to
the provisions of the Federal Mine Safety and Health Act of 1977 with
respect to said operations (Tr. 4).
3. Freeport is a large operator. During 1978, the size of said operation was rated at 909,699 man-hours (Tr. 4).
4.

There is no evidence of a history of prior violations (Tr. 5).

5. Any penalty that may be assessed may not affect the Respondent's
ability to continue in business (Tr. 6).
B.

Opinion and Findings of Fact

Between July 18, 1978, and July 27, 1978, MSHA inspector Spencer
Lindbeck conducted an inspection of the Freeport Kaolin Company (Tr. 9-10).
The subject citations were issued during the course of the inspection (Exhs.
M-3, p. l; M-4, p. l; M-5, p. l; M-6, p. l; M-7, p. l; M-8, p. l; M-9, p. l;
M-10, p. l; M-11, p. l; M-12, p. l; M-13, p. l; M-14, p. 1). The various
citations are addressed individually, herein.
I.

Docket No. BARB 79-219-PM

Citation No. 96161, July 20, 1978, 30 CFR 55.12-16
Inspector Lindbeck issued Citation No. 96161 on July 20, 1978, citing
Freeport for a violation of the mandatory safety standard codified at 30 CFR
55.12-16, when he observed Mr. Ronnie D. Amerson, an employee of Freeport,
cleaning the screw conveyor on the No. 8 drum dryer without having the controls locked out (Exh. M-3, p. l; Tr. 11, 19). The inspector recorded in
the body of the citation that Mr. Amerson had the door on the screw conveyor
open with his arm inside cleaning clay from the screw (Exh. M-3, p. 1).
The machine in question was a double drum Buffalo Vac atmospheric drum
dryer employed to process kaolin by a technique known as thermal evaporation

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(Tr. 12-13, 42). Thermal evaporation was accomplished through the use of two
rotating cast iron drums, each approximately 3-1/2 feet in diameter and
approximately 10 feet in length, heated by steam to a temperature of approximately 300 degrees Fahrenheit (Tr. 42, 4S). The sequential steps employed
in pro~essing kaolin with the drum dryers is set forth as follows: Clay
slurry, or slip, consisting of approximately SS to 60 percent solid material,
is introduced into a pan located beneath the two rotating drums (Tr. 42).
Two splash shafts throw clay slurry up onto the underside of the drums (Tr.
21, 42). The heated drums rotate, removing the moisture from the mixture,
and eventually reach a point at which a doctor blade, or drum blade, removes
the dried product from the drums (Tr. 42). The dry product falls into a
trough where the screw conveyor mentioned in the citation is located (Exh.
0-1; Tr. 21-22, 42). The door mentioned in the citation was a hinged door,
described as a drop-out chute, covering a 12-inch by 16-inch opening in the
trough (Tr. 72, 76; Exhs. 0-1, 0-3, 0-4).
Mr. Amerson testified that he had changed the blades on the drum dryer
approximately 30 minutes before Inspector Lindbeck arrived (Tr. 28-29), but
admitted that he had not locked out the machine while changing the blades
(Tr. 30). The machine was not locked out when the inspector arrived and
observed Mr. Amerson working on the drum dryer, although the magnetic
switch, located approximately 2S feet from where Mr. Amerson was working,
was off (Tr. 11, 18, 29, 34, 76-77). The evidence clearly establishes that
Mr. Amerson had his hand inside the screw conveyor (Tr. 11, 13, 17, 92), and
Freeport's own vice president and general manager testified that under the
company's lock-out procedure (Exh. 0-2) the machine should have been locked
out if a worker had to place his hand inside the screw conveyor (Tr. 69).
Freeport advances two theories contending that 30 CFR SS.12-16 is
inapplicable to the facts presented. In its answer to the petition for
assessment of civil penalty, Freeport contends that the regulation deals
with working on "electrical equipment." Freeport characterizes the equipment involved in the instant proceeding as "mechanical equipment," and not
"electrical equipment." Accordingly, Freeport argues, the machine operator
was not performing work on any kind of electrical equipment within ~he meaning of the cited regulation. In its proposed findings of fact and conclusions of law, Freeport argues that 30 CFR SS.14-29 is the regulation applicable to the facts presented. According to Freeport, 30 CFR SS.14-29
permits the machinery to be in motion when such motion is necessary to make
adjustments during repair and maintenance. Freeport argues that the evidence convincingly demonstrated that machinery ma,t,ion was absolutely neces- .
sary during maintenance and adjustment of the drum dryer (Respondent's
Proposed Findings of Fact and Conclusions of Law, p. 4).
30 CFR SS.12-16, the provision in the Code of Federal Regulations cited
by the inspector, provides:
Mandatory. Electrically powered equipment shall be deenergized before mechanical work is done on such equipment.
Power switches shall be locked out or other measures taken

240

which shall prevent the equipment from being energized
without the knowledge of the individuals working on it.
Suitable warning notices shall be posted at the power switch
and signed by the individuals who are to do the work. Such
locks or preventive devices shall be removed only by the
persons who installed tbem or by authorized personnel.
30 CFR 55.14-29, the regulation upon which Freeport relies, provides:
"Mandatory. Repairs or maintenance shall not be performed on machinery
until the power is off and the machinery is blocked against motion, except
where machinery motion is necessary to make adjustments."
I am unable to agree with either theory advanced by Freeport. The purported distinction between "electrical equipment" and "mechanical equipment, 11
as set forth in Freeport's answer to the petition for assessment of civil
penalty, does not have a bearing on the issue of whether the cited condition
constitutes a violation of 30 CFR 55.12-16. The regulation, insofar as it
applies to the facts presented in the instant case, requires the use of
lock-out devices or other measures to prevent electrically-powered equipment
from being energized without the knowledge of the individuals performing
mechanical work on such equipment. The reference is to "electrically-powered
equipment" and to "mechanical" wqrk done on it, a reference that fails to
support the "electrical/mechanical" distinction advanced by Freeport. The
evidence in the record, and the inferences drawn therefrom, establishes that
the No. 8 drum dryer was electrically-powered equipment within the meaning
of the cited regulation (Tr. 11-12, 13-14, 26, 29-30, 34).
Freeport's reliance on 30 CFR 55.14-29 is misplaced. 3/ The testimony
germane to this issue reveals that the drum dryer had to
in operation in
order to adjust the blade subsequent to the blade's replacement (Tr. 23-24,
27, 43-45, 56), and that during this operation both the drums and the screw
conveyors are in motion (Tr. 42-43). Although the inspector indicated to
Mr. Amerson that the machine did not have to be locked out while adjusting
the blade (Tr. 29-30, 37), the evidence in the record reveals that a lockout procedure should have been observed at other stages of the bladechanging operation. Accor.ding to Mr. Crumbley, the Respondent's manager of

b;

1/

As relates to the reference to 30 CFR 55.14-29 it should also be pointed
out that the Respondent in its own safety lock-out procedure (Exh. 0-2)
makes reference to 30 CFR 57-.12-16 which regulation relates to electrical
equipment as does 30 CFR 55.12-16, which is the regulation involved herein.
It should also be pointed out that 30 CFR 55.12-16 and 30 CFR 57.12-16 were
changed such that the first sentence thereof, on the date of the violation
herein, read: "Electrically powered equipment shall be deenergized before
mechanical work is done on such equiJ?lllent" (emphasis added); whereas prior
thereto the first sentence read: "Electrical equipment shall be deenergized
before work is done on such equipment." The changes were reported in the
October 31, 1977~ issue of the Federal Register. 42 Fed. Reg. 57040, 57043
(October 31, 1977).

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production and shipping, the machine should have been locked out while the
machine operator was changing the blade (Tr. 83), a safety precaution which
Mr. Amerson had failed to observe (Tr. 30).
Mr. Amerson and Mr. Bacon testified that rust develops on the drums
during the blade-changing procedure, rust that would contaminate the product
if permitted to reach the product bin (Tr. 22, 45). Since the clay produced
while adjusting the blade contains contaminants, it is necessary that the
door on the screw conveyor dropout chute be open while the screw conveyor is
running in order to prevent the contaminated material from reaching the
product bin (Tr. 22-23, 45). The testimony of Mr. Bacon indicates that the
door is somewhat larger than the dropout chute opening. Accordingly, a
buildup of clay on the door will prevent obtaining a tight fit when the door
is closed (Tr. 45).
Mr. Amerson was not adjusting the blade when the inspector arrived at
the No. 8 drum dryer. He was waiting for feed, and the blade adjustment was
not completed (Tr. 30). Neither the drum nor the screw conveyor was running
at the time (Tr. 30, 32-33, 76). Mr. Amerson testified that he was in the
process of cleaning the door on the screw conveyor when the inspector
arrived (Tr. 25, 32-33; Exhs. 0-1, 0-3). He indicated that the next step
in the operation would have been to turn on the machine, finish adjusting
the blade, and obtain a sample of the material inside the screw conveyor in
order to check the moisture (Tr. 34-35). Mr. Amerson indicated that it was
not necessary to place his hand inside the screw conveyor since the sample
material would simply fall through the opening (Tr. 35-36). The next
sequential step would have been to clean and close the door (Tr. 36).
Under the procedure instituted subsequent to the issuance of the citation, the cleaning of the door occurred with the machine locked out (Tr.
38-39). According to Mr. Amerson, this procedure did not produce a satisfactory product (Tr. 39), a statement confirmed by Mr. Bacon's assertion
that the screw conveyor must be in operation in order to clean the flap and
maintain a good product (Tr. 58).
Although it may be true that machine motion was necessary during certain stages of the blade adjustment process, the evidence establishes that
machine motion was not required at the point in time when the inspector
observed the violation. As noted above, Mr. Amerson was cleaning the flap
and the machine was not in motion. Mr. Bacon confirmed that machine motion
was not necessary for the performance of these activities (Tr. 64-65). At
one point in his testimony, Mr. Bacon indicated that shutting down the
machine in order to close the dropout chute door would permit the heated
drums to expand sufficiently to ride against the blade holders (Tr. 57-58).
However, he indicated that this problem would not occur with neither the
drum nor the conveyor turning and no product being processed (Tr. 61).
Assuming for purposes of argument that 30 CFR 55.14-29 applies to the
facts presented, the above-noted considerations reveal that the machine
should have been locked out both while changing the blade and while the

242

machine operator was engaged in the door-cleaning activities observed by
the inspector. Machine motion was not necessary for the performance of
these steps.
Accordingly, I conclude that a violation of 30 CFR 55.12-16 has been
established by a preponderance of the evidence in that the No. 8 drum dryer
was not locked out while the operator was performing mechanical work on the
machine.
Negligence of the Operator
Exhibit 0-1, dated May 31, 1977, mandates a lock-out procedure for the
No. 8 drum 9ryer. The existence of this document establishes not only that
Freeport was aware of the importance of locking out electrically-operated
equipment prior to performing work on the equipment, but also that Freeport
was aware of this for more than 1 year prior to the issuance of the citation.
The evidence in the record indicates that the company's lock-out procedure had not been effectively communicated to the employees. Inspector
Lindbeck testified that when the violation was observed, he querried
Mr. Amerson as to the lock-out procedure. Not only did Mr. Amerson have no
idea of what the lock-out procedures were, but Mr. Scandlyn, the maintenance
superintendent, and Mr. Wharton, the supervisor of safety and health, had to
show Mr. Amerson how to use the lock-out device after one had been obtained
(Tr. 12). The inspector's testimony was confirmed by Mr. Amerson, who
testified that he was not told that he was required to lock out the machine
while changing the blades until the day the citation was issued (Tr. 30-31).
In fact, Mr. Crumbley opined that it was unnecessary to use a lock-out and
that Mr. Amerson was following the normal procedure for the piece of equipment involved (Tr. 77). Mr. Bacon testified that the failure to lock out
the machine was a common practice, stating that no danger was involved since
the workman would be accustomed to working near moving parts (Tr. 62-63).
Although Mr. Bacon stated that the lock-out procedure was posted on the
bulletin boards and was covered with the section foremen and the section
superintendents (Tr. 46), he could not state affirmatively that each
employee received a copy (Tr. 63). He testified that the foremen were
supposed to distribute them, but noted that the company did not have them
signed and that no meeting was held (Tr. 63). Although Mr. Amerson had seen
a copy of the letter, he testified that he was left to interpret it on his
own (Tr. 104-105).
In light of these considerations, I conclude that Freeport demonstrated
gross negligence.
Gravity of the Violation
As noted previously, Mr. Amerson's hand was inside the screw conveyor
(Tr. 11, 13, 17, 92). Although the screw conveyor was not in operation at
the time (Tr. 33, 76), the evidence establishes that Mr. Amerson was exposed

243

to a danger of serious injury or death. Inspector Lindbeck testified that
a man could lose his life or an arm in the screw conveyor.in the event the
machine was started inadvertently (Tr. 13-15). Mr. Bacon conceded that an
individual would sustain an injury to the portion of his body inside the
screw conveyor if the machine was turned on (Tr. 49). The evidence clearly
showed that the screw conveyor would be in motion if the machine started.
Even under Mr. Crumbley's definition of "dangerous," Mr. Amerson was in a
hazardous situation. According to Mr. Crumbley, "dangerous" means "near
moving parts" (Tr. 81). In such cases, the machine should be locked out
(Tr. 81).
Accordingly, I conclude that the violation was extremely serious.
Good Faith in Attempting Rapid Abatement
Abatement was achieved by providing a lock-out device, and abatement
was completed in approximately 5 minutes (Exh. M-3, p. l; Tr. 14-15).
Accordingly, In conclude that Freeport demonstrated good faith in
attempting rapid abatement.
II.

Docket No. BARB 79-280-PM

Citation No. 96162, July 20, 1978, 30 CFR 55.14-26
Inspector Lindbeck issued Citation No. 96162 citing the following condition as a violation of 30 CFR 55.14-26: "The glass coverings are broken
on the oxygen and acetylene guages [sic] on the service truck at the selas
building" (Exh. M-5, p. l; Tr. 113).-The evidence reveals that two gauges were present on the oxygen cylinder
and two gauges were present on the acetylene cylinder. One gauge on each
cylinder was a high pressure gauge, monitoring the pressure inside. the
cylinder (Tr. 288). These high pressure gauges indicate the contents of the
cylinders (Tr. 305). The remaining gauge on each cylinder was a low pressure
gauge used to indicate the pressure on the hose and torch (Tr. 305). ·
At the time of the inspection, the glass was broken out and missing
from the high and low pressure gauges on both the oxygen and acetylene
cylinders (Tr. 301). Inspector Lindbeck testified that the indicator
needle was bent on one of the gauges on the oxygen cylinder. He believed
that the bent needle was on the low pressure gauge (Tr. 301). He did not
recall the condition of the needles on the acetylene tank gauges (Tr. 301302).
The regulation in question, 30 CFR 55.14-26, is a mandatory safety
standard which provides: "Unsafe equipment or machinery shall be removed
from service immediately." The question presented is whether MSHA has established a violation of the regulation by a preponderance of the evidence.
29 CFR 2700.48 (1978) (interim procedural rules). For the reasons set forth
below, I answer this question in the negative.

244

In order to establish a violation of 30 CFR 55.14-26, MSHA must
affirmatively establish that the welding equipment was unsafe and that it
had not been removed from service immediately.
The threshold question is whether MSHA has established that the welding equipment was unsafe. In this regard, it is important to bear in mind
that the low pressure gauges and the high pressure gauges perform different
functions, as set forth above, and that each type of gauge presents separate
considerations from the standpoint of safety.
Inspector Lindbeck, at one point in his testimony, indicated that the
absence of the glass coverings and the presence of the bent indicator needle
rendered the gauges defective in that their absence interfered with the
operator's ability to obtain accurate pressure readings (Tr. 118-119, 128130, 132-133). The testimony of Inspector Lindbeck further reveals his
opinion that the inability to obtain accurate pressure readings renders the
welding equipment unsafe by presenting an explosion hazard (Tr. 137).
According to Inspector Lindbeck, if the welding equipment operator is obtaining a different pressure than the one indicated by the gauges, an explosion
can occur when the welder lights the cutting torch (Tr. 138).
Both Inspector Lindbeck and Inspector Mattson indicated that safe welding procedure envisions the welder adjusting this oxygen/acetylene mixture
with reference to the pressure gauges, a procedure that requires him to stand
near the regulator (Tr. 139, 262-263, 284-290). The photograph on page 22
of Exhibit 0-9 reveals that the regulator is attached to the tank. According
to Mr. 'Scandlyn, the regulator, not the gauge, is what controls the flow of
gas from the tank (Tr. 197). According to Inspector Mattson, a welder
adjusts his pressure for both oxygen and acetylene by monitoring the gauges
while turning the valve controls on the respective regulators (Tr. 284-290).
Inspector Mattson associated two safety hazards with the defective
gauges. First, it was his position that too much pressure in the lines
running from the oxygen tank and the acetylene tank to the torch can cause a
hose to rupture since the hoses are designed to withstand pressures less than
the maximum pressure that can pass through the regulator (Tr. 287-290).
Second, improperly functioning gauges induce welders to take shortcuts having
an adverse effect on safety. According to Inspector Mattson, a welder should
"back up" the regulator by turning it counterclockwise upon completion of his
welding to prevent a sudden burst of pressure from rupturing the diaphragm
when the tank valve is subsequently opem~d (Tr. 262-263, 270-271, 290-295).
The absence of properly-functioning gauges induces workers not to "back up"
the regulators. The inspector stated that rupturing the diaphragm can result
in an explosion occurring at the gauge (Tr. 290-291).
Mr. James V. Turner, an individual with 26 years of experience in welding (Tr. 303) and the president of the Welding Supply and Service Company,
Inc., the supplier of Freeport's welding equipment, testified on behalf of
Freeport. His description of the equipment and its functioning is germane
to the issue of safety raised in the instant proceeding. According to

245

Mr. Turner, the regulator has a safety device that opens and vents the gases
should the pressure exceed permissible levels inside the regulator (Tr. 309,
339). This venting system exists to prevent explosions (Tr. 340). The type
of regulators used by Freeport are 175 pourds. The hoses are 300 psi test
hoses. Accordingly, the regulator will not build up sufficient pressure to
burst the hose (Tr. 309, 311). The safety valve is designed to activate if
a sudden burst of pressure enters the regulator (Tr. 309-310). According to
Mr. Turner, the regulator will not pass enough pressure to ignite the acetylene because 175 pounds is the maximum pressure that the adjusting screw will
allow to enter the oxygen hose (Tr. 326). It is recommended that acetylene
not be used at a pressure exceeding 15 pounds (Tr. 326). A gauge is not
needed to prevent the equipment operator from exceeding 15 pounds because the
spring inside the acetylene regulator prevents exceeding this pressure (Tr.
326-327). No evidence was presented establishing that the spring was
defective.
Mr. Turner conceded that if the diaphgram ruptured, the 2,200 pounds of
pressure in the tank could escape through the regulator, notwithstanding the
fact that the regulator is rated at 175 pounds. However, he indicated that
this gas would escape through the vents, not the hoses, and further indicated that an explosion hazard was not present (Tr. 340-341).
I am unable to conclude that a preponderance of the evidence establishes that the gauges in question were unsafe. The testimony addressing
the possibility of rupturing one of the hoses clearly refers to the low
pressure gauge, since that type of gauge monitored the pressure in the
hoses.
As relates to rupturing the diaphgram, the crucial consideration is the
failure of a welder to "back up" the regulator upon completion of his welding operations, not the proper functioning of the pressure gauge per se. I
am not persuaded that an accurate reading from this gauge· is necessary from
a safety standpoint. As noted by Inspector Mattson, the gas released from
the pressure tanks into the regulator will "shoot fast" irrespective of how
slowly the tank valve is opened (Tr. 294-295).
MSHA's witnesses sought to establish that a properly functioning low
pressure gauge is necessary to avoid rupturing a hose at a given point in the
welding operation. The Government has failed to show that the absence of the
glass on both guages and the bent needle on the oxygen tank gauge rendered
the low pressure gauges unsafe per se. The most persuasive testimony by
the Respondent's well qualified expert totally rebutted MSHA's claim that the
condition was unsafe.
His experience and knowledge was much greater than that of MSHA's
witnesses. Much greater weight must be accorded his opinions as to the
safety issue.
In light of these consideration, it cannot be found that a violation
of 30 CFR 55.14-26 has been established by a preponderance of the evidence.

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Citation No. 96173, July 25, 1978, 30 CFR 55.14-1
This citation was issued ·because covers were not provided on the screw
conveyor at the spray dryer bagging building (Exh. M-4, p. l; Tr. 140). The
missing cover was approximately 6 feet long and 14 inches in width (Tr. 141),
and was lying on the floor beside the screw conveyor (Tr. 143). The screw
conveyor was open at the time (Tr. 141). Although none of the witnesses
affirmatively stated that the screw conveyor was in operation; the fact that
the inspection party heard an air leak emanating from the back of the machine
renders it more probable than not that it was in operation (Tr. 143).
Mr. Scandlyn agreed that the cover was, in fact, off the conveyor (Tr.
206). His testimony further reveals that the "floor" mentioned by the
inspector was a maintenance walkway or maintenance platform 12 to 15 feet
above the ground (Tr. 202-203; Exh. 0-5). Access to the platform was provided by a ladder located inside the building and by a stairway located outside the building ·(Tr. 211). Although it was not a normal operating area in
the sense that an employee would not go there to perform a routine function
such as bagging clay (Tr. 202), employees would be in the area in the event
of a breakdown or to perform some other maintenance function (Tr. 202). A
man's arm could be tangled up in the open screw conveyor (Tr. 142).
The mandatory safety standard embodied in 30 CFR 55.14-1 states that:
"Gears; sprockets; chains; * * * and similar exposed moving machine parts
which may be contacted by persons, and which may cause injury to persons
shall be guarded."
·
The location of the screw conveyor, coupled with the fact that employees
would be in the area to perform maintenance work on occasion, indicates that
the exposed moving screw conveyor should have been covered. Accordingly, I
conclude that a violation of 30 CFR 55.14-1 has been established by a preponderance of the evidence.
Negligence of the Operator
Mr. Scandlyn believed that a malfunction in the vent indicator, or bin
indicator, in the bagging bin caused the clay to pile up in the screw conveyor and force the cover off (Tr. 203-204, 208). A bin indicator. is a
device used to measure the flow into a particular bin, cutting off a line
when the bin is full (Tr. 206).
Mr. Scandlyn testified that he remembered "a report of a problem with
the bin indicator at the beginning of the shift," i.e., at approximately
8 a.m. (Tr. 206-207). The citation in question wasTssued at approximately
10 a.m. (Tr. 203; Exh. M-4, p. 1).
According to Mr. Scandlyn, once it has been discovered that the bin
indicator is not working, the normal procedure is to request the electrical
foreman to check it and to discover and correct the problem (Tr. 207). It
is routine to check the entire line to determine whether the malfunction

247

of the bin indicator could have caused flow problems down the line, an
inspection encompassing the subject screw conveyor (Tr. 207). However,
Mr. Scandlyn could not state that it had been checked (Tr. 207-208).
Based on the foregoing, I conclude that if this routine practice had
been followed, it is more probable than not that Freeport knew or
should have known of the condition. The 2-hour time period between 8 and
10 a.m. afforded sufficient time to dis~over the problem.
Accordingly, I conclude that Freeport demonstrated ordinary negligence.
Gravity of the Violation
Inspector Lindbeck testified that one employee was in the area when the
violation was observed (Tr. 141-142). Mr. Scandlyn indicated uncertainty as
to the identity of this employee. He believed that a foreman had been summoned to the area, and thought that the foreman had been the employee (Tr.
204). A maintenance man would pass by the area. Accordingly, I conclude
that one employee would be exposed to the hazard.
A man could have been injured by getting his arm tangled in the
machinery or by getting his clothing caught in it (Tr. 142). Although the
inspector testified that an occurrence could prove fatal (Tr. 142), I
believe the statement contained in the inspector's statement (Exh. M-4,
p. 3), which was made closer in time to the actual occurrence, to be more
probative. It indicates that the contemplated injury could reasonably be
expected to be permanently disabling, and that an occurrence was probable.
Accordingly, I conclude that the violation was serious.
Good Faith in Attempting Rapid Abatement
The violation was abated by Mr. Scandlyn. He picked up the cover lying
on the floor and placed it on the screw conveyor (Tr. 142). Accordingly,
I conclude that Freeport demonstrated good faith in attempting rapid
abatement.
Citation No. 961.74, July 25, 1978, 30 CFR 55.12-30
This citation was issued when the inspector observed that: "The conduit is broken loose at the damper valve at the 'No. 2 dryer" (Exh. M-6,
p. 1). According to Mr. Scandlyn, the conduit is not a rigid pipe, but a
spiral-wound rubber or plastic-coated conduit providing a flexible connection
(Tr. 220). Inspector Lindbeck indicated that the conduit was composed of
metal (Tr. 146). The break was caused by deterioration of the conduit (Tr.
220).
The inspector testified that he did not notice any break in the wiring's
insulation (Tr. 150). Mr. Scandlyn testified that the power conductor was

248

visible, but that it was still insulated (Tr. 220). lbe inspector was uncertain of the precise voltage, but testified that it was either 110 or 120 volts
(Tr. 147). The power conductor was energized (Tr. 156).
According to the inspector, vibration could cause the insulation to rub
against the conduit and wear through, thus posing an electrocution hazard
(Tr. 147, 154-155).
The question presented is whether this condition constitutes a violation
of 30 CFR 55 .12-30, which provides: "Mandatory. When a potentially dangerous condition is found it.shall be corrected before equipment or wiring is
energized." (Emphasis added.) Although the condition was potentially dangerous, this fact, standing alone, is insufficient to establish a violation
of the mandatory safety standard. I interpret the regulation as requiring
MSHA to prove knowledge of the condition before a violation can be found to
have occurred, as demonstrated by the regulation's use of the word "found."
In essence, the regulation proscribes the knowing use of electrical equipment
or wiring once a potentially dangerous condition is discovered. lbere is no
indication in the.record that Freeport had knowledge of this condition prior
to the issuance of the citation.
Accordingly, I conclude that a violation has not been established by a
preponderance of the evidence.
Citation No. 96179, July 26, 1978, 30 CFR 55.12-34
lbis citation was issued when Inspector Lindbeck observed that: "There
are several lights along the upper walkway that are not provided with guards"
(Exh. M-7, p. 1). The inspector did not recall the number of unguarded
lights (Tr. 15 7). The walkway in question, located at the .Savannah Plant
(Exh. M-7, p. 1), was above the bin storage area (Tr. 157) and served as an
accessway for maintenance personnel and operators (Tr. 222). lbe inspector
did not recall the dimensions of the walkway in terms of width and height,
but opined that the height was less than 6 feet in some places because he
and Mr. Scandlyn "had to bend over to walk through it." Mr. Bacon testified
that all of the lights are probably within striking distance of a person
wearing a hardhat (Tr. 157; Exh. 0-7; Tr. 227). The testimony of
Inspector Lindbeck and Mr. Bacon establish the existence of a shock or burn
hazard (Tr. 158, 229).
30 CFR 55.12-34, the cited mandatory safety standard, provides that:
"Portable extension lights, and other lights that by their location present
a shock or burn hazard, shall be guarded." It is clear that the bulbs in
the walkway area were located in such a manner as to present a shock or
burn hazard. They should have been guarded in order to comply with the
regulation's requirements. The fact that the evidence failed to establish
the precise number of unguarded bulbs does no·t prevent finding a violation.
One unguarded bulb would have been sufficient for this purpose.
Accordingly, I conclude that a violation of 30 CFR 55.12-34 has been
established by a preponderance of the evidence.

249

Negligence of the Operator
Mr. Bacon testified that company practice, in recent years, had been to
provide guards for lights located in "normal walkways" (Tr. 224). The fact
that Mr. Bacon did not deem the cited area a "normal walkway" (Tr. 223) is
not controlling. He stated that it is used by maintenance personnel and
operators of equipment (Tr. 222). The fact that the company practice of
providing guards existed indicates that the company was aware of the need to
provide guards in areas open to access by its employees. Accordingly, I
conclude that Freeport demonstrated a high degree of ordinary negligence.
Gravity of the Violation
One employee was observed in the area, and he was wearing a hardhat
(Tr. 158, 160). The inspector testified that an employee could sustain an
electric shock causing a fall and could be exposed to an electrocution hazard as a result of breaking a bulb (Tr. 158). The fact that the walkway
was less than 6 feet in some places would aggravate the hazard (Tr. 157).
The area was dry (Tr. 161). Additionally, the testimony of Mr. Bacon
indicates that a burn hazard was present and that employees carried metal
parts for screw conveyors through the area (Tr. 229-230).
Although the inspector's testimony implies that an occurrence could
prove fatal, the entry contained in the inspector's statement indicates that
the contemplated injury could reasonably be expected to be lost workdays or
restricted duty (Exh. M-7, p. 3). I am inclined to accord greater probative
value to the entry in the inspector's statement since it was made at a point
in time closer to the observation of the condition than was his testimony.
An occurrence was classified as "probable" (Tr. 158; Exh. M-7, p. 3).
Based on the foregoing, I conclude that the violation was moderately
serious.
Good Faith in Attempting Rapid Abatement
The inspector's testimony implies that the violation was abated expeditiously (Tr. 159). Accordingly, I conclude that Freeport demonstrated
good faith in attempting rapid abatement.
Citation No. 96181, July 26, 1978, 30 CFR 55.14-6 4/
This citation was issued when Inspector Lindbeck observed a loose
guard over the metal saw's drive belts (Exh. M-8, p. l; Tr. 161). The saw
4/ The citation was written alleging a violation of 30 CFR 55.14-1. However, during the course of the hearing, the Judge granted MSHA's motion to
amend the petition for assessment of civil penalty as relates to Citation
No. 96181 to charge a violation of 30 CFR 55.14-6 instead of 30 CFR
55.14-1.

250

in question was located in the auto repair shop (Tr. 161-162). The best
available evidence indicates that the piece of equipment in question was a
continuous motorized hacksaw used for cutting steel pipes and steel bars
(Exh. 0-8; Tr. 232, 235-236). Mr. Scandlyn's testimony confirms the presence of the loose guard (Tr. 249). Although the equipment was not in operation when the inspector observed the loose guard (Tr. 347), his testimony
reveals that it is more probable than not that an employee was using the
equipment immediately prior to the issuance of the citation (Tr. 162, 166,
352).
30 CFR 55.14-6, the applicable mandatory safety standard, provides
that: "[e]xcept when testing the machinery, guards shall be securely in
place while machinery is being operated." No evidence was presented by
Freeport rebutting the inspector's testimony that the equipment was in
operation immediately prior to.the issuance of the citation, and no evidence was presented by Freeport indicating that the employee in question
was merely testing the equipment.
Accordingly, in view of the foregoing, I conclude that a violation of
30 CFR 55.14-6 has been established by a preponderance of the evidence.
Negligence of the Operator
The maintenance supervisor was present in the shop when the inspector
arrived on the scene (Tr. 162), but the inspector admitted that he did not
know whether the supervisor knew of the condition (Tr. 166). The record
contains no evidence indicating how long the condition had existed (~,
~. ~. , Tr • 16 2) •
The fact that a supervisory employee was present in the shop indicates
that Freeport should have known of the violation. Freeport demonstrated
· ordinary negligence in connection with the violation.
Gravity of the Violation
The area was a normal work area (Tr. 163). The hazard posed by the
violation was that the guard could make contact with the drive belts
causing them to break and strike an employee (Exh. M-8, p. 3). The
inspector classified the probability of occurrence as "slightly remote"
(Tr. 163). One employee was exposed to the hazard (Exh. M-8, p. 3).
Accordingly, I conclude that moderate gravity was associated with the
violation.
Good Faith in Attemtping Rapid Abatement
The condition was corrected immediately (Tr. 236). In fact, the condition was corrected while the inspector was present (Tr. 166). Accordingly,
I conclude that Freeport demonstrated good faith in attempting rapid
abatement.

251

III.

Docket No. BARB 79-281-PM

Citation No. 96191, July 26, 1978, 30 CFR 55.14-1
This citation was issued when the inspector observed a guard missing
from the end shaft on the No. 4 calciner (Tr. 358; Exh. M-10, p. 1). The
testimony of Mr. Scandlyn reveals that the cited piece of equipment was
located on a bin discharge drive located under a bin which supplies the
feed for the No. 4 calciner. He testified that the drive shaft connection
was approximately 3 inches in diameter. The variable speed drive shaft
rotated at 10 to 20 revolutions per minute (Tr. 400). The unguarded portion
of the shaft was approximately 3 to 4 inches in length (Tr. 400). A keyway
was present on the end of the shaft. A keyway is a slot in the shaft for
the placement of a key (Tr. 402). The inspector testified that the end of
the shaft was burred, and that the shaft was in operation when he observed
the condition (Tr. 362).
According to Mr. Scandlyn, maintenance employees could perform maintenance work near the shaft (Tr. 407-408). The testimony of both Inspector Lindbeck and Mr. Scandlyn establishes that the condition presented a
possibility of injury to employees (Tr. 359, 361, 402-403).
30 CFR 55.14-1 provides: "Mandatory. Gears; sprockets; chains; drive,
head, tail, and takeup pulleys; flywheels; couplings; shafts; sawblades;
fan inlets; and similar exposed moving machine parts which may be contacted
by persons, and which may cause injury to persons shall be guarded."
Based on the foregoing testimony of Inspector Lindbeck and Mr. Scandlyn,
I conclude that a violation of 30 CFR 55.14-1 has been established by a preponderance of the evidence.
Ne~li~ence

of the Oeerator

The inspector testified that the operafor should have known of the condition because it was in a frequently-traveled area (Tr. 359). The inspector's assertion that supervisors travel in the area daily (Tr. 361) was
never rebutted by Freeport's witnesses. However, there is no evidence in
the record indicating how long the condition had existed. Without such
evidence, it is impossible to determine that the condition had existed long
enough for one of Freeport's supervisory personnel to have observed it.
Accordingly, I conclude that operator negligence has not been established by a preponderance of the evidence.
Gravity of the Violation
A cleanup or maintenance man working in the area could be near the
exposed shaft (Tr. 361, 407-408). According to the inspector, burrs or a
keyway on the end of the shaft could get a man's clothing entangled in the
shaft (Tr. 359). As noted previously in this decision, the shaft possessed
both characteristics. I therefore conclude that an occurrence was probable.

252

Mr. Scandlyn described the potential harm as ranging from a torn pair
of pants to a small scratch or cut, but not a deep laceration (Tr. 402-403).
Based,on the fact that the shaft rotated at a low rate of speed, I find his
testimony on this point credible.
Based on the foregoing, I conclude that the violation was accompanied
by moderate gravity.
Good Faith in Attempting Rapid Abatement
Mr. Scandlyn testified that the guard was replaced immediately (Tr.
402). Although the inspector believed that the condition was abated on
July 27, 1978, the day after the issuance of the citation, he nevertheless
testified that the operator attempted rapid compliance after notification
of the condition (Tr. 360). Accordingly, I conclude that Freeport demonstrated good faith in attempting rapid compliance.
Citation No. 97205, July 27, 1978, 30 CFR 55.4-18
The citation alleges, in pertinent part, that oxygen was being stored
in an area where grease, paint and oils were stored (Exh. M-11, p. 1). The
testimony reveals that the "oxygen" in question consisted of a fully-charged
oxygen cylinder on an oxyten-ac;etylene welding set loc,ated in part of the
pilot plant (Tr. 363-364, 409).
According to Mr. Scandlyn, the pilot plant building was probably
60 feet in width, 100 to 150 feet in length and approximately 25 to 30 feet
in height (Tr. 408). According to the inspector, the building was basically
a large open room which he described as an operating area (Tr. 367).
Two areas screened off by wire mesh, and each measuring approximately
10 feet by approximately 15 to 20 feet, were located inside the building
(Tr. 409). According to Mr. Scandlyn, the first wire cage area was a workshop area. He testified that it "has power tools, drill presses, I believe
a band saw, and tools of various nature, a work table, a sorting iron, this
type of thing, what we call a lazy susan for part storage approximately
four feet in diameter with several rotating shelves on it" (Tr. 409).
Mr. Scandlyn confirmed that an oxygen-acetylene tank set mounted ·on a hand
truck was in the area on July 27, 1978 (Tr. 409). Mr. Scandlyn classified
the area as a "normal work place," and would not classify the area as a
storeroom (Tr. 410).
The inspector, however, classified the area as a storage area containing tools, paint, grease, oil, and solvent, in addition to the oxygen
cylinder (Tr. 363). The inspector testified that at least a dozen cans of
paint and oil were present (Tr. 363-364).
Mandatory safety standard 30 CFR 55.4-18 states that "{o]xygen cylinders
shall not be stored in rooms or areas used or designated for oil or grease
storage. 11 The, question presented is whether the evidence establishes

253

"storage" within the meaning of the regulation. At the outset, it cannot
be found that the paint observed by the inspector was· "oil" within the meaning of the regulation. Such a finding would have to be based on probative
evidence establishing the presence of oil-based paint in the subject area
of the pilot plant building. The record contains no evidence establishing
this fact. Accordingly, only the grease and oil observed by the inspector
are germane to a resolution of the issues presented.
I am inclined to accept the inspector's characterization that the oxygen
was at the time in question being "stored" with the oil and grease cans due
to the dimensions of the wire mesh area, and the volume and types of materials observed there and the fact that it was locked. This conclusion is
bolstered by inferences drawn from the testimony of Mr. Scandlyn, which indicate that the time the oxygen would be in the cage area between uses could
be days; and therefore the area was used as a "short-term" storage area (Tr.
414-415).
Accordingly, I conclude that a violation of 30 CFR 55.4-18 has been
established by a preponderance of the evidence.
Negligence of the Operator
Regular supervision was attached to this area of the plant and the condition was in plain view (Tr. 364). Inferences drawn from the testimony of
Mr. Scandlyn (Tr. 411-412) indicate that it is more probable than not that
the condition had existed for an appreciable period of time prior to July 27,
1978. However, considering the fact that the area was used periodically as
a workshop, and the other surrounding circumstances, it cannot be found that
Freeport demonstrated gross negligence.
Accordingly, I conclude that Freeport demonstrated ordinary negligence.
Gravity of the Violation
An occurrence was probable (Exh. M-11, p. 3; Tr. 364). The resulting
injury could reasonably be expected to produce lost workdays or restricted
duty (Exh. M-11, p. 3). The record contains no evidence relating to the
number of employees exposed to the hazard.
Accordingly, I conclude that moderate gravity was associated with the
violation.
Good Faith in Attempting Rapid Abatement
Abatement was accomplished by expeditiously moving the combustibles to
another area (Tr. 365; Exh. M-11, p. 2). Accordingly, I conclude that
Freeport demonstrated good faith in attempting rapid compliance.

254

IV.

Docket No. BARB 79-282-PM

Citation No. 96399, July 18, 1978, 30 CFR 55.20-3
This citation was issued when Inspector Lindbeck observed "several
holes in [the] walkway on top of storage tank I~T-17 that need to be covered"
(Exh. M-12, p. 1). The subject walkway was constructed of expanded metal
(Tr. 371). The cited holes were three or four in number (Tr. 372). Estimates as to the size of the holes varied. Inspector Lindbeck estimated that
the holes were approximately 6 inches by 8 inches or 8 inches by 8 inches
(Tr. 372), while Mr. Scandlyn's estimate was "4 to 6 inches*** to about
6 to 8 inches" (Tr. 421, 426). However, it is significant to note that
Mr. Scandlyn believed, as a general proposition, that holes over 4 inches
"probably should be covered" (Tr. 422).
Mr. Scandlyn testified that the walkway in question was located above a
holding tank (Tr. 419). The platform was reached by a spiral stairway (Tr.
424). The tank was approximately 32 feet in height and 37 feet in diameter
and was used to·hold a mixture consisting of clay and water (Tr. 419, 426).
He further testified that an agitator gearbox and grind motor was located
atop the tank which operated a large shaft extending toward the bottom of
the tank. A rake arm on the shaft prevents mixed material from "settling
out and becoming semi-solid in·the bottom of the tank" (Tr. 419-420).
Mr. Scandlyn testified that the holes had been cut in the walkway around
the "periphery· of the base of the agitator gear box" to provide access to a
support chain used to stabilize the agitator shaft (Tr. 420, 429). The testimony of Mr. Wharton indicates that the walkway was 3 to 4 feet wide (Tr.
430-431).
Mandatory safety standard 30 CFR 55.20-3 provides, in part, as follows:
"Mandatory. At all mining operations: * * * (c) Every floor, working place,
and passageway shall be kept free from protruding nails, splinters, holes, or
loose boards, as practicable." It is undisputed that the holes existed in
the subject walkway. Furthermore, the evidence establishes that it was
practicable to keep the walkway free of holes. There is no indication that
the holes performed any function essential to the daily operation of the
agitator mechanism, outside of providing periodic access to the support
chain. This conclusion is confirmed by the testimony of Mr. Scandlyn,
wherein he expressed his belief that the, employees had permitted the platform to remain in the condition observed by the inspector "because they knew
they would be back there someday to do that same job over, and they would
need that same access" (Tr. 424-425). Furthermore, the steps taken to abate
the condition, infra, reinforce the view that it was practicable to keep the
walkway free of"""'"h'OI'es.
Accordingly, it is found that a violation of 30 CFR 55.20-3 has been
established by a preponderance of the evidence.

255

Negligence of the Operator
Two employees were observed performing maintenance functions on the
walkway, but the inspector's testimony reveals that those employees were not
engaged in alleviating the violation (Tr. 371-372, 374). The inspector did
not know how long the holes had been present in the walkway (Tr. 373, 376).
He testified, however, that Mr. Scandlyn and a foreman indicated that either
a motor or its base had been replaced and that the resulting hole had not
been covered (Tr. 379), a statement which differs radically from
Mr. Scandlyn's previously-mentioned testimony wherein he indicated that the
holes had been made to provide access to the agitator shaft stabilizing
chain. Having been afforded the opportunity to assess the credibility of
the witness, I conclude that Mr. Scandlyn's testimony accurately reflects
the circumstances surrounding the cutting of the subject holes.
It can be inferred from Mr. Scandlyn's testimony that the condition not
only existed for a long period of time but also would have been permitted
to exist for a period of several months or several years into the future (7r.
425). Furthermore, Mr. Scandlyn stated that holes greater than 4 inches
should be covered and even acknowledged the presence of a tripping hazard
(Tr. 422).
In view of these considerations, I conclude that Freeport demonstrated
gross negligence.
Gravity of the Violation
Two maintenance employees were present on the walkway when the inspector arrived (Tr. 371). Additionally, an employee visited the area daily to
check the tank level (Tr. 423-424).
The inspector indicated that a man's foot could enter one of the holes
and he could either suffer a broken leg or stumble and fall into a storage
tank (Tr. 373; Exh. M-12, p. 5). However, I conclude that the presence of
the handrail around the outside of the walkway (Exhs. 0-13, X-1) would render
improbable falling into the storage tank. Considering the size of the holes,
the dimensions of the walkway, and the extent of employee exposure, I conclude that a broken leg hazard existed. An occurrence was probable. An
occurrence could reasonably be expected to result in lost workdays or
restricted duty (Exh. M-12, p. 5).
Accordingly, I conclude that the violation was moderately serious.
Good Faith in Attempting Rapid Abatement
The condition was abated immediately by covering the holes with steel
plates (Tr. 373). Accordingly, I conclude that Freeport demonstrated good
faith in attempting rapid compliance.

256

Citation No. 96159, July 20, 1978, 30 CFR 55.17-1
On July 20, 1978, Inspector Lindbeck conducted a night inspection at
Freeport's Griffin Mill facility (Exh. M-13, p. l; Tr. 380). The subject
citation was issued, citing Freeport for a violation of 30 CFR 55.17-1 as
follows: "The lighting in the warehouse area does not illuminate all
areas - 6 large overhead lights are not working" (Exh. M-13, p. 1).
The condition was observed in the warehouse storage area (Tr. 380).
The building was approximately 100 feet in length and approximately SO feet
in width (Tr. 380). The lights were approximately 20 to 25 feet above the
floor (Tr. 436). According to Mr. Scandlyn, they were basically 300-Watt
incandescent lamps with reflectors (Tr. 436).
Six lights were unlit out of a total of approximately 20 lights (Tr.
380-381, 435-436). Four were in the vicinity of the inspection party and two
were toward the other end of the building (Tr. 436). Approximately five or
six employees were working in the area. At least one forklift was operating
in the area (Tr. 380).
Mandatory safety standard 30 CFR 5S.17-l provides that: "[i]llumination
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 work areas." The question presented is whether a preponderance of the evidence establishes that the illumination in the cited area
was inadequate to provide safe working conditions. The record clearly
reflects that the inspector's opinion as to inadequate lighting was based
solely on his visual observation (Tr. 38S-386). The inspector testified that
he cited the condition because he was unable to see all employees working in
the work area, and indicated that he was unable to see individuals approximately 30 to 40 feet away (Tr. 388-389). He further testified that shadows
in the area prevented forklift operators from seeing the men (Tr. 381). This
testimony is contradicted by the tenor of Mr. Scandlyn's testimony wherein he
indicated that he was fairly certain that he was able to see a good SO feet
and distinguish color (Tr. 433).
Freeport argues that the regulation in question "is unduly and
unenforceably vague in that there are no objective criteria or parameters of
illumination by which an operator can reasonably be expected to measure its
levels of illumination for purposes of compliance" (Respondent's Proposed
F~ndings of Fact, Conclusions of Law, p. 21; see also Respondent's Brief in
Support of Proposed Findings of Fact and Conclusions-of Law, p. 3). I am
unable to agree with Freeport's contention. It may be desirable as a matter
of policy to promulgate a regulation specifying with particularity the level
of illumination necessary to provide safe working conditions. But simply
because such action is desirable from a policy standpoint does not mean that
the existing regulation is unenforceably vague as a matter of law. Whether
a given level of illumination is sufficient to provide safe working conditions presents a question of fact, and there is no indication in the record
that such factual issue cannot be resolved by presentation of evidence of

257

some recognized scientific test with an objective standard as to adequate
lighting in the work place. An objective standard is necessary to prevent
enforcement actions initiated solely on the basis of an inspector's subjective evaluation. It should be pointed out that certain occasions will arise
where the evidence will establish inadequate lighting even absent reference
to an objective standard. But this will be limited to cases where reasonable
minds cannot be expected to differ as to the adequacy of the lighting, such
as cases involving a complete absence of lighting or cases where other evidence clearly establishes an inadequacy of illtunination.
In the instant case MSHA has failed to present enough objective evidence to sustain its burden of proof as to the warehouse area in general.
The inspector's testimony that he was unable to see individuals at a distance
of approximately 30 to 40 feet was rebutted by Mr. Scandlyn's assertion that
he could distinguish color at approximately 50 feet. In addition, the fact
that'approximately 14 lights with 300-Watt incandescent bulbs and reflectors were present and alight in and of itself implies adequate illtunination.
However, MSHA has sustained its burden of proof as to one specific area
of the warehouse. The inspector, at· one point in his testimony, indicated
that Mr. Bruce Dial, the MSHA trainee who accompanied the inspector, stepped
onto the edge of a large hole in the floor due to the inadequate lighting
(Tr. 389-392). Since it was established that the inspector could not see the
hole and the circtunstances almost lead to an accident, it is considered that
this is the kind of evidence which clearly establishes inadequate illtunination at that one location.
.
Accordingly, I conclude that a violation of 30 CFR 55.17-1 has been
established by a preponderance of the evidence.
Negligence of the Operator
The fact .that six lights were not operating in the warehouse and the
lack of sufficient lighting near a refuse hole in the warehouse should have
been known to the supervisors for the Respondent.
Accordingly, the Respondent has demonstrated ordinary negligence.
Gravity of the Violation
The potential hazard in the specific situation is a fall leading to a
possible broken leg or lesser injury. Accord~ngly, I conclude that the
violation was moderately serious.
Rapid Abatement
The violation was abated the next day. Therefore, I conclude that
Freeport demonstrated good faith in attempting rapid abatement.

258

Citation No. 96160, July 20, 1978, 30 CFR 55.17-1
This citation was issued by Inspector Lindbeck during his July 20,
1978, night inspection at the Griffin Mill (Tr. 393; Exh. M-14, p.l).
The citation states that "there is not sufficient illumination at rail
load out area (tank car). Lights were not in working order at time of
inspection." The condition allegedly constitutes a violation of 30 CFR
55.17-1.
As noted previously in this decision, 30 CFR 55.17-1 mandates that
illumination sufficient to provide safe working conditions be provided on
all surface structures, paths, walkways, stairways, switch panels, loading
and dumping sites, and work ·areas. Although the citation, as incorporated
into the petition for assessment of civil penalty, appears to be confined
to an allegation that the illumination was insufficient only in a loading
area, the testimony of the inspector sought to characterize the area not
only as a loading area but also as a walkway (Tr. 394). However, certain
statements contained in the inspector's statement (Exh. M-14, p. 3) reveal
that Inspector Lindbeck cited the area solely on the basis of its use as
a load-out area. Under the heading of "Gravity," the inspector wrote
that "poor lighting in the area could cause a slip or fall from either
cars or loading platform." Accordingly, I conclude that the allegation in
the petition is confined to the use of the area as a rail load-out area.
The testimony of both Inspector Lindbeck and Mr. Scandlyn reveals that
no employees were working in the cited area at the time of the inspection
(Tr. 393, 437-438). According to the inspector, bulk loading of the railroad cars occurs in the area at night (Tr. 393-394). However, he admitted
that he did not see either tank car movement nor switching activities that
night (Tr. 396). Additionally, Mr. Scandlyn testified that no cars were
being loaded in the area on the night in question (Tr. 437).
Since the record reveals that work was not being performed in the rail
load-out area at the time, I conclude that a violation of 30 CFR 55.17-1 has
not been established by a preponderance of the evidence.
Even assuming for purposes of argument that the petition can be construed to allege a violation of 30 CFR 55.17-1 based on insufficient illumination in a walkway, or that this issue has been tried with the implied
consent of the parties, I conclude that the evidence fails to establish a
violation. First, the deficiences in evidence of some scientific test with
an objective standard, noted previously in this decision, presents a substantial obstacle to the finding of a violation. Logically, the objective
standards should be set forth in the regulation. Second, the evidence
reveals that residual lighting from surrounding buildings provided enough
illumination to permit a man to walk through the area without the use of a
flashlight (Tr. 397, 438, 440, 443-444). Accordingly, I am unable to conclude that a preponderance of the evidence establishes that the illumination
in the cited area was insufficient to permit its safe use as a walkway.

259

VI.

History of Previous Violations

The parties stipulated that no evidence exists to establish a history
of prior violations (Tr. 5).
VII.

Size of the Operator's Business

The parties stipulated that Freeport is a large operator. During 1978,
the size of the operator was rated at 909,699 man-hours (Tr. 4).
VIII.

Effect on the Operator's Ability to Continue in Business

The parties stipulated that any penalty that may be assessed may not
affect Freeport's ability to continue in business (Tr. 6).
Furthermore, the Interior Board of Mine Operations Appeals has held that
evidence relating to whether a civil penalty will affect the operator's
ability to remain in business is within the operator's control, resulting in
a rebuttable presumption that the operator's ability to continue in business
will not be affected by the assessment of a civil penalty. Hall Coal Company,
1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (1972). Therefore, I
find that penalties otherwise properly assessed in these proceedings will not
impair the operator's ability to continue in business.
IX.

Conclusions of Law

A. Freeport Kaolin Company and its Griffin and Savannah Mills have
been subject to the provisions of the 1977 Mine Act at all times pertinent
to this proceeding.
B. The Administrative Law Judge has jurisdiction over the subject
matter of, and tpe parties to, these proceedings.
C. MSHA inspector Spencer Lindbeck was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the
citations which are the subject matter of these proceedings.
D. The ruling in Docket No. BARB 79-280-PM granting MSHA's motion to
amend the petition for assessment of civil penalty as relates to Citation
No. 96181 to allege a violation of 30 CFR 55.14-6 instead of 30 CFR
55.14-1 is affirmed.
E. The ruling in Docket No. BARB 79-280-PM granting MSHA's motion to
withdraw the petition for assessment of civil penalty as relates to Citation No. 96184, July 26, 1978, 30 CFR 55.12-30 is affirmed.
F. The violations described in the following citations are found to
have occurred as alleged:
(1) Docket No. BARB 79-219-PM (Citation No. 96161, July 20, 1978,
30 CFR 55.12-16);

260

(2) Docket No. BARB 79-280-PM (Citation Nos. 96173, July 25, 1978,
30 CFR55.14-l; 96179; July 26, 1978, 30 CFR 55.12-34; 96181, July 26, 1978,
30 CFR 55.14-6);
(3). Docket No. BARB 79-281-PM (Citation Nos. 96191, July 26, 1978,
30 CFR 55.14-1; 97204; July 27, 1978, 30 CFR 55.4-18);
(4) Docket No. BARB 79-282-PM (Citation No. 96399, July 18, 1978,
30 CFR 55.20-3; No. 96159, July 20, 1978, 30 CFR 55.17-1).
G. MSHA has failed to prove the violations charged as relates to the
following citations:
(1) Docket No. BARB 79-280-PM (Citation Nos. 96162, July 20, 1978,
30 CFR 55.14-26; 96174, July 25, 1978, 30 CFR 55.12-30);
(2) Docket No. BARB 79-282-PM (Citation No. 96160, July 20, 1978,
30 CFR 55 .17-1)

H. All of the conclusions of law set forth in Part V, supra, are
reaffirmed and incorporated herein.
X.

Proposed Findings of Fact and Conclusions of Law

Freeport and MSHA submitted posthearing briefs. Neither party submitted reply briefs. Such briefs, insofar as they can be considered to
have contained proposed findings and conclusions, have been considered
fully, and except to the extent that such findings and conclusions have
been expressly or impliedly affirmed in this decision, they are rejected
on the ground that they are, in whole or in part, contrary to the facts
and law or because they are immaterial to the decision in these cases.
XI.

Penalties Assessed

Upon consideration of the entire record in these cases and the foregoing findings of fact and conclusions of law, I find that the assessment
of penalties is warranted as follows:
Docket No. BARB 79-219-PM
Citation No.

Date

30 CFR
Standard

Penalty

96161

July 20, 1978

55 .12-16

$255

261

Docket No. BARB 79-280-PM
Citation No.

Date

30 CFR
Standard

96173
96179
96181

July 25, 1978
July 26, 1978
July 26, 1978

55.14-1
55.12-34
55.14-6

Penalty
$ 60

so
40

Docket No. BARB 79-281-PM
Citation No.

Date

30 CFR
Standard

Penalty

96191
97205

July 26, 1978
July 27, 1978

55.14-1
55.4-18

$ 40
75

Penalty

Docket No. BARB 79-282-PM

XII.

Citation No.

Date

30 CFR
Standard

96399
96159

July 18, 1978
July 20' 1978

55.20-3
55.17-1
Total

$ 75
40
$635

Approval of Settlement

During the hearing on June 22, 1979, the representatives of the parties
informed the undersigned Administrative Law Judge that a settlement had been
negotiated as relates to eight of the 13 citations at issue in Docket Nos.
BARB 79-281-PM and BARB 79-282-PM. It was further stated that a motion
requesting approval of settlement would be filed at a later date (Tr. 344346). On October 22, 1979, the parties filed a joint motion to approve
settlement and dismiss addressing the eight above-noted citations.
Information as to the six statutory criteria contained in section 110
of the 1977 Mine Act has been submitted. This information has provided a
full disclosure of the nature of the settlement and the basis for the
original determination. Thus, the parties have complied with the intent of
the law that settlement be a matter of public record.
The alleged violations and the settlements are identified as follows:
Docket No. BARB 79-281-PM
Citation No.
96194
96200
97202

Date

July 26, 1978
July 26, 1978
July 27, 1978

30 CFR
Standard

Assessment

Settlement

55.12-30
SS.14-8(b)
55.12-34
Totals

$ 38
60
48
$146

$ 38
60
48
$146

262

Docket No. BARB 79-282-PM
Citation No.
96145
96149
96398
96156
96158

Date

July 18, 1978
July 18' 1978
July 18' 1978
July 19' 1978
July 19, 1978

30 CFR
Standard
55 .11-2
55 .14-1

55.20-3
55.14-1
55.14-1
Totals

Assessment

Settlement

$ 24
48
34
66
48
$220

$ 24
48
34
66
48
$220

The parties set forth the following reasons in support of the proposed
settlements:
After a review of all available evidence, the parties
hereby agree that the settlement set out in this motion would
be proper because:
1.

There is no reduction in the proposed assessment.

2. The respondent has paid the $366.00, which is the
proposed assessment and s~ch payment will have no effect on
its ability to remain in business.
3.

Respondent is a large operator.

4.

The violations were moderately serious.

5. Respondent demonstrated good faith by attempting
to achieve required compliance after notification of the
alleged violation. Respondent represents that the conditions cited were immediately abated.

6. Respondent has no history of previous violations
at this mine.
7.

Respondent withdraws its request for a hearing.

It is the parties belief and conviction that approval of
this settlement is in the public interest and will further
the intent and purpose of the Federal Mine Safety and Health
Act of 1977.
The reasons given above by the representatives of the parties for the
proposed settlement have been reviewed in conjunction with the information
submitted as to the six statutory criteria contained in section 110 of the
Act. After according this information due consideration, it has been found
to support the proposed settlement. It therefore appears that a disposition approving the settlement will adequately protect the public interest.

263

XIII.

Order

A. The ruling in Docket No. BARB 79-280-PM granting MSHA's motion to
amend the petition for assessment of civil penalty as relates to Citation
No. 96181 to allege a violation of 30 CFR 55.14-6 instead of 30 CFR 55.14-1
is AFFIRMED.
B. The ruling in Docket No. BARB 79-280-PM granting MSHA's motion to
withdraw the petition for assessment of civil penalty as relates to Citation
No. 96184, July 26, 1978, 30 CFR 55.12-30 is AFFIRMED.
C. The settlement outlined in Part XII of this decision is herewith
APPROVED. Since Freeport has paid ~he agreed-upon settlement figure of
$336, IT IS ORDERED that the petitions for assessment of civil penalty
be, and hereby are, DISMISSED.as they relate to the citations encompassed
by the settlement.
D. IT IS FURTHER ORDERED that the citations set forth in Part IX(G) of
this decision be, and hereby are, VACATED and the various petitions for
assessment of civil penalty be, and hereby are, DISMISSED as they relate to
those citations.
E. IT IS FURTHER ORDERED that Freeport pay civil penalties in the
amount of $635 within 30 days of the date of this decision.

Coo~

obn F,
Administrative Law Judge

Distribution:

w. T. Truett, Esq., and Thomas P. Brown IV, Esq., Office of the
Solicitor, U.S. Department of Labor, 1371 Peachtree Street, NE.,
Room 339, Atlanta, GA 30309 (Certified Mail)
Gene B. Strouss, Personnel Manager, Freeport Kaolin Company, P.O.
Box 37, Gordon, GA 31031 (Certified Mail)
Alexander E. Wilson III, Esq., and Thomas J. Hughes, Jr., Esq., Jones,
Bird & Howell, Haas-Howell Building, 75 Poplar Street, Atlanta, GA
30303 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Standard Distribution

264

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

JAN 3 1 1980
LOCAL UNION NO. 6843, DISTRICT 28,
UNITED MINE WORKERS OF AMERICA,
Applicants
v.

Complaint for Compensation
Docket No. VA 80-17-C
Amonate No. 31 Mine

WILLIAMSON SHAFT CONTRACTING COMPANY,
Respondent
DECISION
Appearances:

Mary Lu Jordan, Esq., United Mine Workers of America,
Washington, D.C., for Applicants;
Timothy J. Parsons, Esq., Loomis, Owen, Fellman & Howe,
Washington, D.C., for Respondent.

Before:

Judge Charles C. Moore, Jr.

Applicants United Mine Workers filed a complaint for compensation under
section 111 of the Act (Federal Mine Safety and Health Act of 1977), based
upon events which transpired during a roof control inspection conducted
by MSHA inspector Carl E. Boone on August 9, 1979, at Consolidation Coal
Company's Amonate No. 31 Mine.
lhe facts not in issue show that Inspector Boone conducted a roof control inspection of "the main headings being turned off the ventilation
shaft" (Complaint, para. III). The shaft and headings in question were
being constructed by Respondent Williamson Shaft Contracting Comppny pursuant to a contract with Consolidation Coal Company. After this, the facts
are disputed.
In a report filed by Inspector Boone with his supervisor, 1/ the
inspector states that upon inspecting the roof bolt installation near the
bottom of the shaft in question he found that the majority of the roof
]} Attached to Applicants' Statement in Opposition to Respondent's Motion
to Dismiss as Exhibit A (sent under separate cover). I do not consider
this report to be determinative of the facts but treat it as relevant evidence. Any denials by Respondent as to the contents of the inspector's
report are dul-y noted, infra.

265

bolts installed against the coal roof had less torque than that required
by Consolidation Coal Company's approved roof control plan. This alleg~
tion is denied by Respondent.
Inspector Boone wrote that "the company" was also checking the roof
bolts and makes further reference to "management." It is unclear whether he
is referring to the management of Consolidation Coal Company or to William
Shaft Contracting Company but for the purposes of this decision I will
assume he means Consolidation Coal Company. The report further states that
when management asked for Inspector Boone's recommendations concerning the
roof bolts, he informed them that they could either rebolt the area using
mechanical bolts with adequate anchorage or use resin rods. The company
decided to use resin rods, to be installed within 1 or 2 days after the
proper materials were ordered and delivered. At this point, Inspector Boone
told the company that the only work that they should do in the area would
be to install one of the roof support methods he had recommended in order
to comply with safety precaution No. 12(c) of their approved roof control
plan. As a result of this recommendation, several miners were idled during
the day and afternoon shifts on August 9, 1979.
Section 111 of the Act (30 U.S.C. § 821) entitles miners to compensation at varying rates for the time they are idled when a mine or a portion
of a mine is closed pursuant to an order issued under sections 103, 104 or
107 of the Act (30 U.S.C. §§ 813, 814 and 817, respectively). Applicants
claim that Inspector Boone's recommendation amounted to a verbal withdrawal
order under sectin 107(a) of the Act (Complaint, para. IX). That section
reads as follows:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of the
area of such mine throughout which the danger exists, and
issue an order requiring the operator of such mine to cause
all persons, except those referred to in section 104(c), to
be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary
determines that such imminent danger and the conditions or
practices which caused such imminent danger no longer exist.
The issuance of an order under this subsection shall not preclude the issuance of a citation under section 104 or the
proposing of a penalty under section 110.
Thus, an inspector may issue withdrawal orders under this section where
he or she determines that an imminent danger exists. However, subsection
(d) of section 107 specifically requires such orders to be in writing. J:../

J}

Section 107(d) provides as follows:
"Each finding made and order issued under this section shall be given
promptly to the operator of the coal or other mine to which it pertains

266

Construing.the facts in a light most favorable to the Applicants, 3/
there is no evidence in this case of a specific verbal.finding of imminent
danger by the inspector, nor of a written finding of imminent danger nor,
as both parties concede, of a written withdrawal order pursuant to section
107.
Applicants point out that Inspector Boone's st~tement had the same
effect as a withdrawal order by causing a temporary cessation of mining
activities. Applicants then use a "but for" test to create a causal nexus
between the Inspector's statement and their claims for compensation.
Assuming that Inspector Boone's statement did cause a cessation of
mining activities, idling some miners, it is necessary to determine whether
section 111 or any other section of the Act anticipates an award of compensation in such a case.
As to other than imminent danger orders, subsections (a) through (f)
of section 103 of the Act authorize the Secretary to inspect mines, investigate accidents, require operators to maintain records, and provide for a
representative of the miners to accompany inspectors during inspections.
Section (g) provides for miner-initiated inspections upon a written notice
to the Secretary alleging a violation of the Act or an imminent danger.
These inspections may be conducted independently or may be incorporated
into a regular inspection by the Secretary. There is no evidence in this
case that the inspection which took place was initiated by a miner or by
a representative of the miners.
Subsections (h) through (j) of section 103 provide for the maintenance
of certain records, prescribe a minimum number of inspections of mines containing explosive gases and set forth the Secretary's powers in the event
of an accident. Subsection (k) authorizes the Secretary to issue appropriate orders in accident situations. The alleged order in this case was not
connected to an accident in the mine.
Section 104(b) authorizes the Secretary to issue orders where an
operator has failed to abate a violation for which he was cited within the
time allowed and the Secretary determines that the abatement time should
not be extended. There is no evidence of a prior citation in this case.
Section 104(d) allows withdrawal orders to issue in two cases. In the
fn. 2 (continued)
by the person making such finding or order, and all of such findings and
orders shall be in writing, and shall be signed by the person making them.
Any order issued pursuant to subsection (a) may be modified or terminated
by an authorized representative of the Secretary. Any order issued under
subsection (a) or (b) shall remain in effect until vacated, modified, or
terminated by the Secretary, or modified or vacated by the Commission pursuant to subsection (e), or by the courts pursuant to section 106(a)."
(Emphasis added.)
3/ As required by Federal Rules of Civil Procedure Rule 56, 28 U.S.C.A.
(note 124), advisory for purposes of Commission decisions.

267

first case, the Secretary must issue a withdrawal order under section
104(d)(l) where an operator violates, unwarrantably, any mandatory health
and safety standard within 90 days of the issuance of an unwarrantable
failure citation. In the second case, an order must promptly issue under
section 104(d)(2) where the Secretary, upon subsequent inspection, finds
violations similar to those in the original unwarrantable failure citation
and no interim inspection has verified abatement of the original violations.
Again, there is no evidence of a citation in this case so that the alleged
order could not have been issued pursuant to section 104(d). Section 104(e)
allows the Secretary to issue withdrawal orders where it finds that an operator has a pattern of violating mandatory health or safety standards. There
is no evidence of such a pattern in this case. Section 104(f) allows the
Secretary to issue withdrawal orders where it finds that the atmosphere of
a mine contains an excessive amount of respirable dust. There is no evidence
that the order alleged here was such an order.
The statutory scheme outlined above anticipates that withdrawal orders
would be issued subsequent to the issuance of a citation where the operator
either has not abated the condition described in the citation or the condition has recurred, except in the case of imminent danger orders which may
be issued without reference to particular health and safety standards.
While sections 103 and 104 of the Act do not specifically require orders
issued thereunder to be in writing, there are other references in the Act
to publishing orders and making them available for public inspection which
assumes that the orders would be in writing. Although section 107 is the
only section which specifically requires orders to be in writing, it
appears that all orders under the 1977 Act are expected in all cases to
be in writing. The legislative history is in accord.
Section 111 of the 1977 Act entitling miners to compensation for idle
time was taken directly from its counterpart in the Federal Coal Mine Health
and Safety Act of 1969 ("1969 Act"): section llO(a). (See Legislative
History of the Federal Mine Safety and Health Act of 197"'f""'at 1337.) Section llO(a) of the 1969 Act entitled a miner to compensation for time lost
when a mine was closed by an order issued under section 104 of the 1969
Act. Section 104 in turn described the various withdrawal orders the Secretary could have issued upon finding violations of the Act and imminent
dangers and required, inter alia, in subsection (f) that "all such notices
and orders shall be in writing." Thus, the requirement of a writing is
clearly stated under the 1969 Act.
Applicant further offers the case of Alabama By-Products Corporation
v. Mining Enforcement and Safety Administration and United Mine Workers of
America, BARB 76-153, 76-220 and 76-221 (August 19, 1976), in support of
its position that a verbal recommendation can constitute an order of withdrawal. It should be noted that the administrative law judge in that case
was considering a written citation and specifically confined his decision
to the facts presented (at 19).
Based upon the foregoing, the only type of withdrawal order the inspector could have issued would have been for imminent danger and he clearly
did not do that.

268

ORDER
Respondent's motion to dismiss

is hereby GRAN;; j//~

~lloore,

f

Jr.
'(
Administrative Law Judge

Distribution:
Mary Lu Jordan, Esq., United Mine Workers of America, 900-15th St.,
NW., Washington, DC 20005 (Certified Mail)
Timothy J. Parsons, Loomi~ Owen, Fellman & Howe, 2020 K St., NW.,
Washington, DC 20006 (Certified Mail)
Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)

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

(703) 756-6210/11/12
L

JAN 3 1 198)

Civil Penalty Proceeding

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

Docket No. LAKE 79-24
A.O. No. 33-01173-03036

v.

Meigs No. 2 Mine

SOUTHERN OHIO COAL COMPANY,
Respondent ·
DECISION AND ORDER
.In response to the order to show cause of December 6, 1979,
the Secretary has filed a motion for summary disposition and
the operator a response that is in effect a cross-motion for
summary disposition or to dismiss based on the legal defense
raised in its pretrial submission of September 17, 1979.
Oral argument on the motions was heard on January 17, 1980.
The operator claims its defense challenging the validity of
Citations Nos. 278700, 278801 and 278802, 1/ is timely and
may be raised under sections 105(a) and (d} of the Act, 30
U.S.C. 815(a), (d), Rule 22 of the Commission's Rules of
Procedure, and the Commission's decision in Ener~y Fuels Corporation,
DENV 78-410, 1 BNA MSHC 2013, 2020, 1 FMSHRC Decisions 299,
315 (May 1, 1979) (dissenting opinion of Commissioner Lawson).
I agree that as interpreted by the Commission in Energy Fuels,
the Act permits an operator to challenge the validity of an
abated citation either within thirty days of its issuance or

1/ The other two citations involved in this proceeding
are sUbject of a motion to approve settlement filed
November 29, 1979.

270

thirty days after receipt of a notice of proposed penalty
assessment. 2/ On the other hand, the Commission has held
the validity-of closure orders must be challenged immediately
or not at all. Pontiki Coal Corp., PIKE 78-420-P, 1 BNA
MSHC 2208, CCH 1979 OSHD ,[23, 979, 1 FMSHRC Decisions 1476
(October 25, 1979); Wolf Creek Collieries, PIKE 78-70-P,
FMSHRC 79-3-11 (March 26, 1979). This anomaly results from
the fact that the Commission has interpreted section 105(a)
of the Act as permitting a challenge to the issuance (validity)
of a section 104(a) citation after receipt of a notice of
proposed penalty assessment. Energy Fuels, supra; Rule 22.
For the reasons set forth in Commissioner Lawson's dissenting
opinion in Energy Fuels, I believe the Commission should
reconsider and eliminate this anomaly in the review procedure.
Compare Beckley Coal Mining Co., HOPE 79-35, et al, (November 27, 1978).
Assuming therefore, without deciding, that a challenge
to the issuance of a citation includes a challenge to its
validity on the ground that the inspection giving rise to
its issuance was unauthorized, 3/ I will proceed to consider
the operator's motion on its merits. ~/

2/ The challenge to validity was not filed until
September 17, 1979. This was much longer than thirty days
after receipt of the notice of proposed penalty assessment.
The Rules, however, do not provide at what stage of a civil
penalty proceeding a challenge to validity other than
a general denial must be filed. Compare Rule 22 with Rule 28.
In view of the uncertainty in the Commission's statement of
its procedures, I will assume for the purpose of this
disposition that the challenge was timely.
3/ Since an ultra vires inspection does not result in
automatic application of the exclusionary rule, the fact that
an inspection is found to be unauthorized may not retroactively
invalidate the use of the citation as the predicate for a
valid penalty proceeding. See Savina Home Industries v: Secretary,
594 F.2d 1358, 1361-1365 (10th Cir. 1979); Todd Shipyards Corp.
v. Secretarr, 586 F.2d 683, 690 (9th Cir. 1978). As noted in
the text in ra, the inspector here acted pursuant to clear
congressional authorization. It is obvious, therefore, that
enforcement of the instant citations will not contravene the
imperative of judicial integrity that calls for application of the
exclusionary rule. See, United States v. Peltier, 422 U.S. 531,
536 (1975).

4/ For purposes of disposing of the operator's motion, I have
assumed that the inspection and citations were the result of a
request for special inspection made under section 103(g)(l) of the
Act, 30 U.S.C. 813(g)(l). Transcript p. 14.

271

The undisputed facts show that during a closeout
conference following a regular inspection of the Meigs
No. 2 Mine on December 21, 1978, Inspector.,_Petit received
an oral request from a representative of the miners to
examine the are~s referred to in the challenged citations.
(Wilson Deposition at 34). As a result of the inspector's
observations, three citations issued charging the operator
with failure to comply with its approved roof control plan
and the mandatory safety standard set forth in 30 CFR
75.200. The conditions cited were promptly abated and
thereafter the Secretary proposed a penalty of $325.00 for
each citation.
Section 103(g)(l) of the Mine Act, 30 U.S.C. 813(g)(l),
provides that at the written request of a miner or representative
of miners who has reasonable grounds to believe that an
imminent danger or a violation of the Ac·t or a mandatory
standard exists MSHA shall perform an immediate special
inspection to determine the existence of the complained
of condition or practice, except that if the complaint
indicates an imminent danger the operator shall be notified
"forthwith" so that action can be taken to abate the condition
or withdraw the miners even before the inspection. 5/
30 CFR Part 43 (1978); Legislative History, Mine Sarety and
Health Act of 1977, 95th Cong., 2d Sess. at 1324 (July 1978).
Section 103 (g) (1) further provides that a copy of the n·otice
given MSHA by the miner or his representative ."shall be
provided the operator or his agent no later that at the time
of the inspection." Id.

~/

Section 103(g)(l), 30 U.S.C. 813(g)(l) provides:

Whenever a representative of the miners or a
miner in the case of a coal or other mine where ·there
is no such representative has reasonable grounds to
believe that a violation of this Act or a mandatory
health or safety standard exists, or an imminent danger
exists, such miner or representative shall have a right
to obtain an immediate inspection by giving notice to
the Secretary or his authorized representative of such
violation or danger. Any such notice shall be reduced
to writing, signed by the representative of the miners
or by the miner, and a copy shall be provided the operator
or his agent no later than at the time of inspection,
except that the operator or his agent shall be notified
forthwith if the complaint indicates that an imminent
danger exists. The name of the person giving such notice
and the names of individual miners referred to therein
shall not appear in such copy or notification. Upon
receipt of such notification, a special inspection shall
be made as soon as possible to determine if such violation
or danger exists in accordance with the provisions of this
title. If the Secretary determines that a violation or
danger does not exist, he shall notify the miner or
representative of the miners in writing of such determination.
272

Respondent claims the failure of the inspector to
furnish this copy to its agent at the time of the inspection
requires a finding that the inspection was unauthorized and
that citations issued as a result are null and void. I do
not agree.
Sections 103(g)(l) and (2) 61 originated as sections
104(f)(l) and (2) of the Senate ~ill, S. 717. Leg. Hist.,
~. at 531-532.
With reference to the requirement for
rurnfshing a copy of the miner's written notice to the
operator, the Senate Report states:
While Section 104(f)(l) requires that such complaints
be written, and signed by the complaining party, the
Committee does not intend to preclude the Secretary's
response to unwritten or unsigned complaints. The
Committee notes that MESA currently maintains an inward
WATS line (an "800'.' number) for the express purpose
of receiving complaints about hazardous conditions
in the mines. The Secretary must respond to appropriate
complaints ~nder section 104(f)(l), but need not
necessarily follow up on complaints that do not meet
the requirements of that section. Leg. Hist., supra,
at 617. II
It appears therefore that while an inspector is not
required he is authorized to make a special spot inspection
"to determine if such violation or danger exists in accordance
with the provisions of" Title 1 of the Act.

~I

Section 103(g)(2), 30 U.S.C. 813(g)(2) provides:

Prior to or during any inspection of a coal or
other mine, any representative of miners or a miner
in the case of a coal or other mine where there
is no such representative, may notify the Secretary
or any representative of the Secretary responsible
for conducting the inspection, in writing, of any
violation of this Act or of any imminent danger
which he has reason to believe exists in such mine.
The Secretary shall, by regulation, establish procedures
for informal review of any refusal by a representative
of the Secretary to issue a citation with respect
to any such alleged violation or order with
respect to such danger and shall furnish the representative
of miners or miner requesting such rei.(iew a written
statement of the reasons for the Secretary's final
disposition of the case.

II Resort to legislative history may be had even where the
statutory language seems clear and unambiguous because "while
the clear meaning of statutory language is not to be ignored,
'words are inexact tools at best' . . . and hence it is essential
that we place the words of a statute in their proper context by
resort to legislative history." Tidewater Oil Co. v. United States,
409 U.S. 151, 157 .(1972).
273

This construction is consonant with section 103(g)(2)
which does not require that a copy of the request for inspection
be furnished the operator where the request is made prior to
or during an inspection. While the failure of the miner to
reduce his request for inspection to writing may justify
a refusal by the inspector to make either a (g)(l) or (g)(2)
inspection, it does not render the inspection performed an
illegal or unauthorized search or furnish any ground for
complaint by the operator of a violation of any procedural
or substantive rights conferred by the Act.
Reference to the Conference Report, S. Rep. 95-461, 95th
Cong., 1st Sess., at 46, Leg. Hist., supra, at 1324, shows
that the purpose of the requirement that the "request for an
inspection be served on the mine operator no later than the
commencement of the inspection" was "to protect [the complaining]
miners from possible retribution" by the operator. This
echoes the statement by the Senate Committee that "the Committee
is aware of the need to protect miners against possible
discrimination because they file complaints.
. " Leg. Hist. ,
supra, at 617.
Finally, with respect to the requirement that MSHA
notify an operator or his agent "forthwith" if the complaint
indicates an imminent danger, ~/ the Conference Report states:
The failure of the Secretary to notify the operator
or his agent under this provision will not nullify any
citation or order that may be issued as the result
of the inspection in response to the request under
this section, even if such inspection discloses the
existence of an imminent danger situation in the mine.
Leg. Hist., supra, at 1324.
The corollary of this is that the inspector's failure to
give a copy of the written notice to the operator at the time
of the inspection does not invalidate any citation issued under
section 103(g) because (1) an operator----r8 not entitled to
advance notice of a compliance inspection; (2) the purpose of
furnishing a copy of the miner's complaint is for the miner's

8/

Supra, note 5.

274

protection n6t the operator's; (3) the inspector is authorized
to make the inspection even where the request is oral; and
(4) there is no requirement for furnishing a copy of the notice
where the request for inspection is made prior to or during
the course of a regular inspection. Leg. Hist., supra, at 617,
1324; 30 CFR part 43.
What was fashioned by Congress as a shield against
retaliation should not by an exercise in literalism be
converted into a sword of nullification.
I conclude therefore that the purpose of furnishing a copy
of the miner's complaint to the operator is to put the operator
on notice that the complainant was engaged in a protected.
activity in filing the complaint. The operator acts then at
his peril if he retaliates because the copy of the notice
lays the foundation for a finding of willful and knowing
violation of the anti-discrimination provisions of the Act.
Section lOS(c)(l), 30 U.S.C. 815(c)(l). Such a violation
may be subject to the civil and criminal sanctions of sections
llO(c) and (d), 30 U.S.C. 820(c), (d).
For these reasons, I find the failure to furnish a copy
of a request for a special inspection does not invalidate
the inspection or nullify the citations issued as a result
of the inspection. It is ORDERED therefore that the operator's
motion for summary disposition or to dismiss be, and hereby is,
DENIED.
Following oral argument on the motions, counsel for both
parties moved that in the event respondent's legal defense
was overruled settlement of the three violations involved be
approved at the amount originally assessed for each violation,
$325.00. The remaining two violations charged are subject
of a motion for approval of settlement in the amount of $160.00
each filed November 29, 1979. For the reasons set forth in
the parties' submissions and based on an independent evaluation
and de novo review of the circumstances, I find the proposed
settlement in accord with the purposes and policy of the Act.
Accordingly, it is FURTHER ORDERED that the motions to
approve settlement be, and hereby are, GRANTED, and that the
operator pay the penalty agreed upon, $1295.00, on or before
Wednesday, February 20, 1980, and tha
ubject to payment
the captioned petition be DISMISSED.

275

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

276
*U.S. GOVERNMENT PRINTING OFFICE:

1980-0-311-143/3312