\ ..

Starting with this nonth' s Decisions, pages will be mmbered to
facilitate an indexing system which the camd.ssion staff will
develop. Decisions issued fran March 9, 1978 through March 31, 1979
will be cited by date of issuance, and therefore should be kept in
chronological order for easy reference.
On April 1, 1979 the Ccmnission adopted a new docketing procedure
for· our cases. In the caning nonths you will notice different

prefixes arrl ·suffixes in our nu:nbering system.
explanation.of the system:

Following is an

New System of Docketing cases as of April 1, 1979

SUFFIX

YORK area - Maine

CENl' area - North Dakota

Venront
New Hanpshire
Massachusetts
Connecticut
Rhooe Island
New York
New Jersey
Delaware
Maryland

South Dakota
Nebraska
ICMa
Missouri
Kansas
Arkansas
Oklahana
I.ouisiana
Texas
New Mexioo

PENN area - Pennsylvania
WFSI' area· - M:mtana

l\Tyan:i11g

WEVA area -

West Virg:inia

Colorado
Arizona
Utah
Idaho
Washington
Oregon
Nevada
califomia
Alaska
Hawaii

KENT area - Kentucky

VA

area - Virg:inia

SE

area - North Carolina
South carolina
Tennessee
Georgia
Florida
Alabama
Mississippi
Puerto Rioo

LAKE area -

Minnesota
Wisconsin
Illinois
Indiana
Ohio

Michigan
PREFIX
Penalty - Coal
Penlaty - ~tal
Review - Coal
Review - M3ta.l
Discrimination
Discrimination - M=tal
Crnpansation
Ccxrpensation - Matal

No SUffix
M after the rn.nnber

R after the number
RM after the nurrber
D after the number
DM after the number
C after the nurcber
CM after ~ number

APRIL 1979
The following cases were Directed for Review during the rronth of April~

Magma Copper Canpany v. Secretary of Labor and United Steelv.orkers
of Anerica, DE.NV 78-533-M.

Secretary of Labor (on behalf of David Pasula, William Kaloz,
Ralph Pa.lnEr, Janes Colbert, Bryan Plµte, Lawrence carden) v.
Consolidation Coal carpany, PI'IT 78-458, PI'IT 79-35, PI'IT 79-36.
Secretary of Labor (on behalf of David Fasula) v. Consolidation
Coal Ccrrpany, PI'IT 78-458.
Secretary of Labor v. Davis Coal Ccrapany, HOPE 627-P, HOPE 78-672-P,
HOPE 78-673-P, HOPE 78-674-P, HOPE 78-675-P, HOPE 78-676-P, HOPE
78-687-P, HOPE 78-696-P, HOPE 79-112-P.

Review was Denied in the following c.ases during the rronth of April:

Burgess Mining and Construction Corporation v. Secretary of Labor
BARB 78-541-573.
Secretary of Labor v. C F & I Steel Corporation, DE.NV 77-79-P.
Secretary of Labor v. Helvetia Coal carpany, Keystone Coal Mining
Corporation, PI'IT 79-12-P, PI'IT 79-5-P.
Secretary of Labor v. Clinchfield Coal Canpany, NORI' 78-417-P.

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

April 5, 1979
JOHN MATALA,
Applicant
Docket No. MORG 76-53
Appeal No. IBMA 76-96

v.
CONSOLIDATION COAL COMPANY,
Respondent
DECISION

This case arises under the Federal Coal Mine Health and Safety Act
of 1969 ("the 1969 Act"). 1/ The issue is whether the Commission should
review a discrimination claim brought by John Matala, a miner employed
by Consolidation Coal Company.
Matala showed evidence of development of pneumoconiosis (black
lung) and on March 1, 1975, he exercised his statutory right under the
1969 Act to voluntarily transfer from his continuous mining machine
operator's position to that of a general laborer's position in an area
of the mine with a lower coal dust level. 2:./ Before his transfer,
Matala had been earning $55.00 per day, the standard daily wage rate for
a continuous mining machine operator. After his transfer, the Company
continued to pay Matala $55.00 per day. On December 6, 1975, the
National Bituminous Coal Wage Agreemeh~ of 1974 increased the standard
daily wage rate for continuous mining machine operators to $57.20.
Matala continued to be paid $55.00 per day, however.
Matala then filed an application for review of alleged discrimination
with the Secretary of the Interior under section 110(b)(2) of the 1969
Act, claiming that the Company's failure to pay him the wages of a
1/
30 U.S.C. §801 et~· (1976)(amended 1977). This case presents no
issue under the Federal Mine Safety and He~lth Act of 1977, 30 U.S.C.A.
§801 et seq. (1978).
J:../ Section 203(b)(2) and (3) of the 1969 Act provided, in part:
(2) [A]ny miner who ••• shows evidence of the development of
pneumoconiosis shall be afforded the option of transferring from
his position to another position in any area of the mine, for such.
period or periods as may be necessary to prevent further development of such disease, where the concentration of respirable dust in
the mine atmosphere is not more than 1.0 milligrams of dust per
cubic meter of air ••••
(3) Any miner. so transferred shall receive compensation for such
work at not less than the regular rate of pay received by him
immediately prior to his transfer.

79-4-2
1

continuous mining machine operator after December 6, 1975, violates
section 203(b)(3) of the 1969 Act and results in discrimination against
him in violation of section llO(b)(l)(B) of that Act. 3/ On May 5,
1976, Administrative Law Judge Malcolm Littlefield, assigned to hear
Matala's case, dismissed the application for review. Matala appealed to
the Secretary of Interior's Board of Mine Operations Appeals. 4/ For
the reasons set forth below, we conclude that we should not review
claims under section llO(b) of the 1969 Act of alleged violations of
section 203(b)(3) of the Act, and therefore we affirm the dismissal.
The 1969 Act was amended in 1972 by the Black Lung Benefits Act, 30
U.S.C. §901 et~· (1976). Section 428 of the Black Lung Benefits Act,
30 U.S.C. §938, provides, in part:
(a) No operator shall discharge or in any other way discriminate against any miner employed by him by reason of the fact
that such miner is suffering from pneumoconiosis •••
(b) Any miner who believes that he has been discharged or
otherwise discriminated against by any person in violation of
subsection (a) of this section, or any representative of such
miner may, within ninety days after such violation occurs, apply to
the Secretary [of Labor] for a review of such alleged discharge or
discrimination •••• [Emphasis added.]

;

11 Section llO(b)(l) and (2) of the 1969 Act provided, in relevant
part:
(1) No person shall discharge or in any other way discriminate
against ••• any miner ••• by reason of the fact that such
miner ••• (b) has filed, instituted, or caused to be filed
or instituted any proceeding under this Act •••
(2) Any miner ••• who believes that he has been discharged or
otherwise discriminated against by any person in violation of
paragraph (1) of this subsection may, within thirty days after such
yiolation occurs, apply to the Secretary [of Interior]for a review
of such alleged discharge or discrimination •••. ·[Emphasis added.].
!!_/ The appeal is before this Commission for disposition under section
301, Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C,A.
§ 961 (1978), under which the Secretary of Interior's adjudicative
functions under the 1969 Act were transferred to the Commission.

2

The Administrative Law Judge held that section 428 of the Black
Lung Benefits Act was exclusively applicable to Matala's claim and he
therefore dismissed the application for review. He ruled that the claim
should have been filed with the Secretary of Labor under section 428,
rather than with the Secretary of Interior under section llO(b) of the
1969 Act. The judge relied primarily on the language of the Secretary
of Interior's Board of Mine Operations Appeals decision in Higgins v.
Old Ben Coal Corporation, 3 IBMA 237, 1973-1974 OSHD ~118, 228 (1974),
appeal dismissed as untimely filed, No. 77-1363 (D.C. Cir. June 20,
1977), that:
[S]ince there is a specific statutory provision for review
of discharge and/or discrimination of a miner based upon the fact
that such miner suffers from pneumoconiosis, as here alleged, we
need not speculate whether, in the absence of such provision, this
Board could or should assume jurisdiction under some other provision of the Act, specifically section llO(b). We think it highly
unlikely that Congress intended to confer jurisdiction upon both
the Secretary of Labor and the Secretary of Interior pertaining to
the same subject matter within the confines of the same Act.
3 IBMA at 245.
On appeal, Matala argues that because he exercised his transfer
right under section 203(b)(2) of the 1969 Act, he instituted a proceeding under the 1969 Act and thus a failure to pay him at the wage rate of
his old job classification is discrimination in violation of section
llO(b) of the 1969 Act.
We conclude, however, that Matala's allegation of discrimination
should be resolved under the extensive provisions of section 428(b) of
the Black Lung Benefits Act, which are enforced by the Secretary of
Labor, not the Commission. Despite Matala's attempt to characterize
this dispute as a section llO(b) discrimination claim, .his application
raises issues of discrimination related exclusively to rights of miners
afflicted with pneumoconiosis. Congress has provided a more specific
remedy in the Black Lung Benefits Act for claims of discrimination based
on pneumoconiosi$ and there is no need for this Connnission to apply the
more general proyisions of section llO(b) of the 1969 Act in order to
provide Matala with a remedy for any discriminatory practices which
might be present in this case. 2../
5/ We do not reach the question of whether discrimination actually
existed in this case and we reserve judgment on whether we would reach a
different result if claims like these were not entertained under section
428 of the Black Lung Benefits Act. See Higgins v. Old Be1:i Coal Company,
No. 76-BLA-633 (Labor Dept. Office of ALJ's, March 21, 1977), aff'd, 584
F.2d 1035 (D.C. Cir. 1978), pet. for cert. filed, 47 U.S.L.W. 3587
(February 20, 1979) (No. 1288). We note in that regard that a claim
based on these circumstances was in fact recently adjudicated by the
Department of Labor under section 428 of the Black Lung Benefits Act.
John Matala v. Consolidation Coal Company, No. 77-BLA-1415 (January 5,
1978), appeal pen~ing. No. C780035W (N.D.
Va.).

w.

3

The judge's decision is affirmed.

"4

Jero!Jie R. Wal

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
i730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

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

April 11, 1979

Docket Nos. IBMA 76-28
MORG 76-21
IBMA 77-39
MORG 76X95-P

v.
REPUBLIC STEEL CORPORATION

DECISION
These cases present a common issue under the Fed~ral Coal Mine
Health and Safety Act of 1969. 1/ The material facts in both cases are
not disputed. Republic Steel concedes that the violations of the 1969
Act giving rise to these enforcement proceedings occurred at a mine that
it owned. The parties agree that the violations occurred during the
course of work performed by independent contractors engaged by Republic.
The Secretary concedes that no employees of Republic were endangered by
the violative conditions. For the purposes of deciding these cases, it
is also assumed that Republic could not have prevented the violations. 'J:../
Thus, the question of law at issue is clearly framed: Can Republic, as
owner of the involved mine, be held responsible for violations of the
1969 Act created by its independent contractors even though none of
Republic's employees were exposed to the violative conditions and
Republic could not have prevented the violations. For the reasons that
follow, we answer this question in the affirmative.
The question of a mine owner's responsibility for violations of the
1969 Act created by independent contractors has been the subject of much
litigation. An understanding of.the issues involved can best be reached
by tracing the development of the law in this area.
The 1969 Act provided that "[e]ach coal mine, the products of which
enter commerce, or the operation~ or products of which affect commerce,
and each operator of such mine, shall be subject to the provisions of
this Act". 30 U.S.C. § 803 (emphasis added). The Act defined the term
"operator" as- "any owner, lessee, or other person who operates, controls
or supervises a coal mine". 30 U.S.C. § 802(d). The Act further provided for the issuance of notices, orders, and civil penalty assessments
to operators who violated the Act's requirements.
1/ 30 U.S.C. §801 et~· (1976) (amended 1977) ("the 1969 Act" or "the
Act"). These cases present no issue under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §801 et~· (1978).
J:../ The violations were abated after service to Republic of the notices
and the order at issue.

79-4-4
5

Early in the Act's enforcement, the Interior Department's Board.of
Mine Operations Appeals held that, although an independent contractor
and the coal company to whom the contractor provides services may both
be "operators" under the Act, ]./ only the operator responsible for the
violation and the safety and health of the endangered employees could be
served with notices and orders and assessed penalties. Affinity Mining
Co., 2 IBMA 57 (1973). The Board further stated, however, that an
operator such as Af.finity 4/ could be assessed a civil penalty where it
"materially abetted" the independent contractor's violations or "actually
committed" such violations.
In subsequent cases, the test stated in Affinity for determining a
cpal mine owner's responsibility for violations of the Act created by
its contractors was modified by the Board. In Peggs Run Coal Co.,
Inc., 5 IBMA 175 (1975), the Board expanded the bases for holding a coal
mine owner responsible to situations where the owner's employees were
endangered by the violation and the owner could have prevented the
violation "with a minimum of diligence." 5 IBMA at 183. The rationale
of Peggs Run was followed by the Board in West Freedom Mining Corp., 5
IBMA 329 (1975), and Armco Steel Corp., 6 IBMA 64 (1976), in which
notices issued to mine owners for violations arising from the work
activities of their contractors were affirmed.
The Board's application of its "endangerment/preventability" test
for determining a coal mine owner's responsibility for violations created
by independent contractors was brought to an end, however, through a
chain of events set in motion by the Board's decision in Affinity Mining
Co., supra.

lf

_In Laurel Shaft Construction Co., Inc., 1 IBMA 217 (1972), the Board
held that an independent contractor can be an "operator" within the
meaning of the 1969 Act. This conclusion was also reached by the Fourth
Circuit in Bituminous Coal Operators' Association, Inc. v. Secretary of
Interior, 547 F.2d 240 (1977), and the D.C. Circuit in Association of
Bituminous Contractors, Inc. v. Andrus, 581 F.2d 853 (1978). The Commission has followed the holdings of the Board and the courts on this
issue. Cowin and Co., Inc., Docket No. BARB 74-259, April 11, 1979.
No argument is made in the present cases that the involved independent
contractors were not "operators" within the meaning of the Act or that
the violations did not occur in a "coal mine".
!±.I The mine involved in Affinity was located on land leased by A_f~inity
Mining Company from the Pocahontas Land Corporation. 2 IBMA at 63.

6

Following the decision in Affinity, the Association of Bituminous
Contractors ("ABC") instituted a declaratory judgment proceeding seeking
to establish that, contrary to the decision in Affinity, an independent
contractor engaged by a coal mining company to perform construction work
at a coal mine was not an "operator" within the meaning of the 1969 Act.
ABC v._Morton, Secretary of Interior, No. 1058-74 (D.D.C., May 23,
1975). In its order granting the relief sought, the district court
stated:
• • • [A] coal mine construction company is not an
"operator" as defined in Section 3(d) of the Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. §802(d),
where it is engaged in coal mine construction work on
behalf of the owner, lessee or other person who operates,
controls or supervises a coal mine;
Nothing in the foregoing declaration shall affect
or prejudice the right of the Secretary of the Interior
to contend in a subsequent proceeding that, if a coal
mine construction company fails to observe the interim
mandatory health and safety standards of the [1969 Act]
and the regulations of the Secretary of the Interior
promulgated thereunder, the Secretary may institute
proceedings to seek compliance therewith and assess
appropriate penalties against the owner, lessee or
other person who operates, controls or supervises said
coal mine.
On August 21, 1975, in response to the district court's order, then
Acting Secretary of Interior Frizzell issued Secretarial Order No. 2977.
This order directed the Interior Department's enforcement personnel to
cite only coal mine operators for violations of the Act created by contractors performing work on behalf of the operators. The Board of Mine
Operations Appeals held that Order 2977 was a department-wide policy
directive, binding upon the Board and the administrative law judges as
well as the enforcement personnel, and, therefore, that it was compelled
to hold a coal mine owner responsible for its contractors' violations
regardless of the particular circumstances surrounding the violations.
E._g_., Rushton Mining Co., 5 IBMA 367 (1975).
Based on this rationale; the Board affirmed the withdrawal order at
issue in Docket No. MORG 76-21 ("Republic I"), 5 IBMA 306 (1975), and
an administrative law judge assessed civil penalties for the violations
in Docket No. MORG 76X95-P ("Republic II"). These decisions were then
appealed to the Court of Appeals for the District of Columbia Circuit
and to the Board, respectively. 2/
1_/ The appeal before the Board in Republic II was stayed by the Board
pending the de~ision of the D.C. Circuit in Republic I. That appeal is
now before the Commission pursuant to section 301 of the Federal Mine
Safety and Health Amendments Act 0£ 1977, 30 U.S.C. § 961 (1978).

7

While the appeals in Republic I and Republic II were pending, the
Court of Appeals for the Fourth Circuit issued its deci.sion in Bituminous
Coal Operators' Association, Inc. v. Secretary of Interior, 547 F.2.d 240
(1977). The Bituminous Coal Operators' Association (BCOA) had filed
suit in district court following the issuance of Secretarial Order 2977.
The BCOA sought a declaratory judgment that coal mine operators are not
responsible for violations created by independent contractors and an
injunction r~straining the Secretary from enforcing the policy announced
in Order 2977. The district court held that construction contractors
are not "operators" under the Act, but are "statutory agents" of the
coal mining companies. The court further concluded, however, that the
coal mining companies, as "operators", could be held responsible for
violations created by their "agent" contractors. Accordingly, the court
dismissed the complaints for declaratory and injunctive relief. BCOA v.
Hathaway, 400 F.Supp. 371 (W.D. Va. 1975).
On appeal the Fourth Circuit affirmed the ultimate judgment of the
district court although it did not embrace all of that court's conclusions of law. The court of appeals held, contrary to the district court,
that construction contractors can be "operators" under the 1969 Act and,
therefore, that the Secretary properly could enforce the provisions of
the Act against such contractors. The court further held that a coal
mine owner or lessee also could be held responsible for a construction
contractor's violations. BCOA v. Secretary, supra, 547 F.2d at 246~47.
This latter conclusion was premised on two bases. First, the court
noted that the Act defined the term "operator" to include an owner or
lessee and tha.t the Act imposed responsibility for violations on the
operator of a mine without exemption or exclusion. Therefore, the court
concluded that the Act "impose[s] liability on the owner or lessee of a
mine regardless of who violated the Act or created the danger requiring
withdrawal." BCOA v. Secretary, -547 F.2d at 246. Second, the court
agreed with the district court's conclusions that a construction contractor "may be considered the statutory agent of an owner or lessee of
a coal mine", and that under the Act an owner or lessee may be held
responsible for the violations of its agents. 547 F.2d at 247.
On February 22, 1978, the D.C. Circuit issued its decisions in ABC
v. Andrus, 581 F.2d 853 (1978), and Republic Steel Corp. v. Interior
Board of Mine Operations Appeals, 581 F.2d 868 (1978). ABC v. Andrus
was the appeal of the ~istrict court's order in ABC v. Morton, supra,
declaring the 1969 Act unenforceable against contractors. On appeal,
the D.C. Circuit reversed the district court's order and held that
independent contractors that otherwise fell within the Act's coverage
were "operators" against whom the Act could be enforced. 581 F.2d at
862-63.

8

In Republic Steel, the D.C. Circuit reversed .the Board's decision
in Republic I. The court observed that the sole basis for the Board's
decision was its belief that it was bound by Secretarial Order 2977 to
hold coal mine owners such as Republic responsible for violations of the
Act created by their contractqrs. Since the district court's order that
resulted in the issuance of Secretarial Order 2977 had been reversed in
ABC v. Andrus, the court concluded that the Board's decision in Republic
I "no longer had a foundation" and that a remand was necessary. 581
F. 2d at 820. &._/
Against this background we turn to a discussion of our holding.
We agree with the Fourth Circuit's conclusion in BCOA v. Secretary
that as a matter of law under the 1969 Act an owner of·a coal mine can
be held responsible for any violations of the Act committed by its
contractors. Our conclusion is derived from the text of the statute
itself. The Act defines "operator" as "any owner, lessee, or other
person who operates, controls, or supervises a coal mine." II The Act
provides for the issuance of orders and notices to the operator for
innninent dangers and violations of mandatory standards; 8/ the assessment of civil penalties against the operator of a mine in which a
violation occurs; 9/ and the compensation by the operator of miners
idled by a withdrawal order. 10/ As the Fourth Circuit correctly
observed, "[t]hese sections, when read with the definition of operator,
impose liability on the owner • • • of a mine regardless of who violated
the Act or created the danger requiring withdrawal." 547 F.2d at 246. 11/
Furthermore, we can find nothing in the Act or its legislative
history that requires that an owner's responsibility for contractor
violations be qualified by any consideration of the owner's ability to
prevent the violations. Rather, .Congress determined that the question
of an operator's fault was not to enter into the determination of

&/

The D.C. Circuit's decision remanded Republic I to the.Board. The
case is now before the Commission for disposition. See n. 5, supra.
71 30 u.s.c. § 802(d).
8/ 30 u.s.c. § 814.
91 30 u.s.c. § 819.
10/ 30 u.s.c. § 820.
11/ In Republic Steel Corp., supra, the D.C. Circuit also endorsed this
conclusion. 581 F.2d at 870 n. 5.

9

whether a violation of the Act had occurred. 12/ Valley Camp Coal Co,
1 ·IBMA 196 (1972); Webster County Coal Corp., 7 IBMA 264 (1977). Thus,
it is consistent with the Act's language and the intent of Congress to
hold an owner responsible for its contractors' violations .without regard
to the owner's ability to prevent the violations. Insofar as the
decisions of 'the Board held to the contrary, we decline to follow them.

12/ The House managers explained the conference report's provision
requiring the assessment of a penalty on the operator of a coal mine in
which a violation of the Act occurs as follows:
Section 109.

*2.

*

*

*

*

*

*

The Senate bill provided that, in determining the amount of
the civil penalty only, the Secretary should consider, ainong other
things, whether the operator was at fault. The House amendment
did not contain this provision. Since the conference agreement
provides liability for violation of the standards against the
operator without regard to fault, the conference substitute also
provides that the Secretary shall apply the more appropriate
negligence test, in determining the amount of the penalty, recognizing that the operator has a high degree of care to insure the
health.and safety of persons in the mine.
H. Conf. Rep. No. 91-761, 9lst Cong., 1st Sess., at 71 (1969)(emphasis
added), reprinted in Senate Subcommittee on Labor, Committee on Labor
and Public Welfare, 94th Cong., 1st Sess., Legislative History of the
Federal Coal Mine Health and Safety Act of 1969, Part I, at 1515 (1975) •
. The 1969 Act's imposition of liability without regard to an operator's fault should be compared with the Occupational Safety and Health
Act of 1970, 29 U.S.C. §651 et~· In the OSHAct Congress declared
that its purpose and policy was "to assure so far as possible" safe and
healthful working conditions to America's workforce. 29 U.S.C. §65l(b)
(emphasis added). Some courts have interpreted the emphasized phrase as
an indication of Congressional intent not to hold employers responsible
for violations of the OSHAct that they could not have prevented. See,
~·.&·, Horne Plumbing & Heating Co. v. OSHRC, 528 F. 2d 564 (5th Cir-.1976); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D. C.
Cir. 1973).

-:-:

10

We also can find no support for the assertion that the Act permits
an owner to avoid responsibility for a contractor's violations simply
because the only miners endangered by the violative conditions at its
mine are employees of the contractor. The Act seeks to protect the
safety and health of all individuals working in a coal mine. 30 U.S.C.
§§ 80l(a) and 802(g). In order to achieve this goal, the Act places a
duty on each operator to comply with its provisions. 30 U.S.C. § 803.
The purpose of the .Act is not served by interpreting these provisions to
allow an operator to limit the benefit of the protection it affords to
its own employees. Employer-employee is not the test. The duty of an
operator, whether owner or contractor, extends to all miners. Again, to
the extent the decisions of the Board held to the contrary, we decline
to follow them.
It bears emphasis that the miners of an independent contractor are
invited upon the property of the mine owner to perform work promoting
the interests of the owner. A mine owner cannot be allowed to exonerate
itself from its statutory responsibility for the safety and health of
miners merely by establishing a private contractual relationship in
which miners are not its employees and the ability to control the safety
of its workplace is restricted.
We need not decide in this case the scope of Commission review, if
any, over the Secretary's choice in proceeding against the owner, the
independent contractor, or both, 13/ for a contractor's violation. At
the time that the involved notices and orders were issued to Republic,
the District Court's order in ABC v. Morton, supra, declaring independent contractors not liable under the Act, was still outstanding.
Therefore, the Secretary had the choice of either proceeding against the
owner or entirely abdicating enforcement of the Act for contractor
violations. In view of this fact, no matter what test is applied, the
Secretary's choice to proceed against Republic was entirely proper.

13/ We are not suggesting that the Act requires that.an owner must be
proceeded against whenever a contractor violates the Act. Nor are we
suggesting that the fact that,an owner may be proceeded against in any
way lessens the duty of the contractor to comply with the Act's requirements. Even where an enforcement action is undertaken against an owner,
the contractor may also be proceeded against in a separate or consolidated
proceeding.

11

In view of Republic's concession that the violations alleged
occurred at a mine that it owned, we conclude that Republic violated the
Act. Accordingly, the decision of the administrative law judge vacating
the withdrawal order in Republic I is reversed and the decision of the
administrative law judge in Republic II
civil penalties is
affirmed as to result.

Backley, Commissioner, dissenting:
The majority opinion combines two cases in ol ing Republic Steel
Corporation, Docket Nos. IBMA 76-28 and IBMA 77 3 , referred to herein
as "Republic I" and "Republic II," respectively~ This, I believe, is
unfortunate as it ignores the fact that Republic. I is before us on
remand from the United States Court of Appeals for the District of
Columbia Circuit with the issue to be decided clearly stated. Republic II
was stayed by our predecessor, the Interior Board of Mine Operations
Appeals (Board), for review pending the outcome of Republic I.
By combining the two cases, the majority disregards the individual
factual situations presented by these cases. Furthermore, the issue is
stated in the majority opinion as if the sole issue to be decided is one
of statutory construction, which is not accurate. As a result,_the
majority concludes that Republic, as owner of the mine where the alleged
violations occurred, can be held liable for the violations. "created by
its independent contractors." This general proposition of statutory
construction does in fact have support from two recent court decisions. 1/
The majority then concludes, without any discussion of the factual
situation surrounding the occurrence of the violations or finding of
fact relevant thereto, that Republic should be held liable for the
violations of its independent contractor. Accordingly, it must follow
that Republic, absent a finding cf any causal connection between its
actions and the violations, is being held liable under a strict liability
theory. I cannot agree with this latter conclusion and, therefore, must
dissent from today's decision.

1/

Association of Bituminous Contractors Inc., (ABC) v. Andrus,
581 F.2d 853 (D.C. Cir. 1978); Bituminous Coal Operators
Association, Inc. (BCOA) v. Secretary, 547 F.2d 240 (4th Cir. 1977).
12

In order to put this matter in proper perspective, we must first look
at the facts that gave rise to Republic I and under what circumstances
that case is now before us.
As indicated above, Republic I was remanded from the Circuit Court
which vacated the decision of the Board. 2/ · The Board had, in turn,
reversed the decision of the Administrative Law Judge (ALJ) who had held
that the owner-operator (Republic) was not the proper party to cite in
a withdrawal order for the acts of an independent contractor (Roberts
and Schaefer Construction Company) who violates the health or safety
provisions of the Federal Coal Mine Health and Safety Act of 1969. ]/
The Board did not, as the ALJ did, analyze the facts of the case,
but held as a matter of departmental policy that the owner or lessee of
a coal mine is the sole party to be held absolutely liable for violations
of the mandatory standards caused by a coal mine construction contractor
regardless of the circumstances. The Board stated that it was compelled
to so hold as a result of Secretarial Order 2977, issued as a policy
directive by the Acting Secretary of Interior cin August 21, 1975, and
made retroactively effective to May 24, 1975. The Secretarial Order
stated that it was being issued to comply with the declaratory judgment
order issued by the U.S. District Court for the District of Columbia on
May 23, 1975, in Association of Bituminous Contractors, Inc. v. Morton,
(C.A. No. 1058-74, unreported) (hereafter cited as ABC v. Morton). In
that case the district court held that coal mine construction contractors
were not "operators" within the meaning of 30 U.S.C. §802, and therefore
were not liable for failure to abide by the mandatory health and safety
standards. On February 22, 1978, that decision was reversed by the Court
of Appeals on the basis of an erroneous statutory interpretation of the
term "operator" by the district court. 4/ On the same day of its reversal
of ABC v. Morton, the Court of Appeals remanded the instant case involving
essentially the same issue. 2/
In remanding this case, the Court noted that the Board's decision
"was not, in fact, based on an interpretation of law. It was based,
pure and simple, on the Association of Bituminous Contractors decision."
581 F.2d at 870. The Court then vacated the decision and remanded, as

2/
3/
4/

2/

Section 106(a) of the Act, 30 U.S.C. §816(a) (1970), provided
that 11 Any order or decision" issued by the Secretary shall be
subject to review in an appropriate court of appeals.
30 U.S.C. §801 et seq., hereafter "The Act".
Association of Bituminous Contractors, Inc. v. Andrus,
581 F.2d 853 (1978).
Republic Steel Corporation v. Interior Board of Mine
Operations Appeals, 581 F.2d 868 (1978).

13

noted above, with the following language:
"The Board may then determine what enforcement action it
will follow; whether to proceed, as in the past, only
against construction contractors, and therefore dismiss
the present action against Republic or to proceed
against Republic on the basis of the Board's own interpretation of how best to effectuate the purposes of the
Act." [Emphasis added.]
Thus, the Court of Appeals has left to us the determination as to
which of the options available in determining liability will most
effectively assure the health and safety of the miner. The policy
considerations enunciated by the majority fail to convince me that by
holding Republic strictly liable under the facts of this case, the
purposes of the Act would be most efficiently promoted.
The undisputed circumstances of this case are as follows: Republic's
Kitt No. 1 Mine was undergoing construction on August 4, 1975, when a
federal inspector issued a notice of violation under section 104(b) 6/
of the Act. The notice cited Republic, as operator of the Kitt mine~
the the following alleged violation of 30.C.F.R. §71.101: J.../
The Roberts and Schaefer Construction Company, doing construction
work on the operator's property has not collected respirable
dust samples on their employee [sic] as required.
The construction company was employed by Republic to construct ,a
coal preparation plant at the Kitt Mine and its ·work activity did not
involve any underground operation at the mine site. Abatement of the
violation was required to be completed by August 11, 1975. On
August 13, 1975, the inspector returned to the mine site and finding
that "little or no effort was being made· to abate the violation," issued
an Order of Withdrawal to Republic pursuant to section 104(b) of the
Act. The withdrawal order prohibited Republic from allowing Roberts and
Schaefer to perform the work it had contracted to do. Following Republic's
abatement of the violation on the same day, the withdrawal order was
terminated.

6/

J...l

30 u.s.c. 814(b) (1970).
The pertinent part of section 71.101 reads:
"(a) Each operator of an underground coal mine and
each operator of a surface coal mine shall take, as
prescribed in this subpart, accurate samples of the
amount of respirable dust in the atmosphere to which
each miner employed in a surface installation or a
surface worksite is exposed."

14

A timely application for review of the propriety of the withdrawal
order was filed by Republic. §_/ Filed concurrently was a motion for
summary decision with a supporting affidavit. In response, the government filed a motion and memorandum in opposition to the motion for
summary decision together with a cross motion for summary disposition.
The government's motion recited the allegations made by Republic and
"agree(d) that there is no genuine issue of fact raised in this proceeding ••• " The motion then cited Secretarial Order 2977, referred to
above, as the basis for citing Republic.
Thus, based on the above documents, the record established the
following:
(1)

Roberts and Schaefer was employed by Republic
as an independent contractor to construct a
coal preparation plant at its mine;

(2)

Roberts and Schaefer had exclusive control
and responsibility over its employees
engaged in that: construction activity;

(3)

The alleged violation in question related solely
to the failure to take samples of the respirable
dust to which the employees of Roberts and
Schaefer were exposed;

(4)

No employees of Republic were subject to any
danger because of the alleged violations; and

(5)

The notice and order were issued to Republic
instead of the independent contractor so as
to comply with the departmental policy
expressed in Secretarial Order 2977, which,
in turn was based upon the district court's
misinterpretation of the statute.
!

In concluding that Republic is absolutely liable for the violation
charged, the majority relies in part upon the observation of the Fourth
Circuit in BCOA v. Secretary J_/ that the provisions o~ the Act "impose
liability on the owner ••. of a mine regardless of who violated the Act
or created the danger requiring withdrawal." However, when this quoted

§._/

J_/

Attached to the application were two memoranda from the
Assistant Administrator, Coal Mine Health and Safety to
a.11 District Managers instructing inspectors to issue
all notices and orders to owner-operators and not to
construction companies or independent contractors, and
to vacate those notices and orders issued to independent
contractors prior to June 3, 1975, and reissue them to
the owner-operator involved. Such action was taken to
adhere to the District Court decision in ABC v. Morton.
Supra, SL; 7 F. 2d at 246.

15

portion of the sentence is read within the context of the entire paragraph
the court seemed to be holding that the referenced provisions of the Act
authorized the Secretary to impose strict liability on the owner of the
mine.
To realize the true impact of that holding it must be remembered
that the court was ref erring to the Secretary of Interior and the
departmental structure utilized for the enforcement of the Act at the
time of the court's decision. The court had earlier noted at page 242
that "[w]ithdrawal orders may be reviewed by the Secretary through the
Board of Mine Operations Appeals." 10/
The majority opinion further notes that the District of Columbia
Circuit also endorsed this "same conclusion" of the Fourth Circuit in
its remand of the instant case and cites footnote 5 of the Republic
decision. That footnote, in its entirety, states as follows.:
"Hence we do not disagree with the Fourth Circuit's
logic iri BCOA, that the Act leaves the agency free
to assess either coal mine owners or contractors."
The majority apparently reads this footnote as support from the
District of Columbia .Circuit for the proposition that the statute mandates
that the owner-operator be liable for any violations of the Act committed
by its contractors on mine property should the enforcement body, not the
reviewing authority, so determine. When the remand opinion is read as a
whole, however, it is clear that the Distri~t of Columbia Circuit did
not adopt this theory in Republic. If it had, it would have simply
affirmed on the grounds that the Secretary was well within his statutory
right to proceed against Republic.
On the contrary, however, the Court of Appeals remanded the present
case with the options for the administrative reviewing authority clearly
stated. Our determination regarding proper allocation of liability was
to be based upon the policy considerations enunciated by the court.
For the majority to now refer to the language quoted above from the
opinions in ABC v. Andrus and BCOA v. Secretary for authority supporting
a policy determination to impose strict liability on owner-oper~tors
indicates a significantly different.reading of those cases then my own. 11/
Thus, I believe it would be helpful to summarize precisely my view
as to what the Circuit Courts have held regarding the issues before us.
The District of Columbia Circuit held in ABC v. Andrus that it'was not
contrary to the statutory language of the Act for the Board of Mine
10/
11/

The Secretary had delegated his review authority under the
Federal ~oal Mine Health and Safety Act to the Interior
Board of Mine Operations Appeals, 43 C.F.R. §4.500 (1976).
The majority appea~s to place great emphasis on the fact
that the statute does not "qual:f.fy" the owner-operators'
liability by his inability to prevent a violation. Yet
in ABC v. Andrus, the D.C. Circuit specifically referred
to control and supervision in assessing liability. For
further discussion of this principle see pages 13 and 14
infra.
16

1_-;_

Operations App_eals to hold independent construction companies liable as
"operators" for failure to comply with the mandatory safety and health
standards of the Act.
The Fourth Circuit held in BCOA v. Secretary that it was not contrary
to the statutory language of the Act for the Board of Mine Operations
Appeals to impose liability on a coal mine construction company that
violates the Act. The Court in BCOA v. Secretary further held that it
was not contrary to the statutory language of the Act for the Secretary
(i.e., Board of Mine Operations Appeals) to impose liability on the
owner for any violation committed by the construction company on mine
property, regardless of the circumstances. However, the Court emphasized
the narrowness of its holding by stating that the "opinion presents no
occasion, however, for determining the proper allocation of liability in
view of the myriad factual situations that may arise.'' Review by the
Court pursuant to Section 106(a) of the Act as to the proper allocation
of liability based on a specific factual situation was inappropriate
because no administrative record had been developed. 12/
The Bituminous Coal Operator's Association (BCOA) and the Association
of Bituminous Contractors (ABC) had both filed requests for declaratory
relief in the respective district courts. Those courts had been requested
to construe the Act as to the permissible limits of the term "operator."
The decisions of the circuit courts do not purport to state which party
should be held liable in a specific factual situation; rather, they
provide guidance as to which party can be held liable as an "operator"
consistent with the proper statutory construction. In line with these
decisions, I therefore conclude that either the owner or.the independent
contra~tor may be held liable as operators under the Act.
In light of the above discussion, I now turn to my own determination
of how best to allocate legal responsibility for violations and safety
hazar.ds as between the mine owner and the independent contractor working
on mine property. I am convinced that the Act's purpose of assuring the
health and safety of miners can best be accomplished by placing the
responsibility for their health and safety on the person most able to
prevent violations or hazards and to correct them quickly should they
occur. In most situations that person would be the p~rty who controls
or supervises the work activity in that portion of the mine where the
violation or hazard occurred.
In ABC v. Andrus, the appellate court noted, with approval, that
decisions of the Board 13/ "stress the importance of placing direct
liability on the independent construction company as the party most able
to take precautionary measures." 14/ Noting that the Board had "forcefully rejected" the conclusion that mine owners should be absolutely
12/
13/
14/

The court's discussion of this point is found at 547 F.2d 243.
Affinity Mining Company,· 2 IBMA 57, 80 Interior Dec. at 229 (1973);
Wilson v. Laurel Shaft Construction Co., 1 IBMA 217, 79 Interior
Dec. 701 (1973).
581 F.2d at 862.

17

liable, the court went on to state:
"It is not a stretching of the statute to hold
that companies who profess to be as independent
of coal mine owners as these construction
companies purport to be, do control and supervise
the construction work they have contracted to
perform over the area where they are working.
If a coal mine owner contracts with an independent
construction company for certain work within a
certain area involved in the mining operation,
the supervision that such a company exercises over
that separate project clearly brings it within the
statute. Otherwise, the owner would be constantly
interfering in the work of the construction company
in order to minimize his own liability for damages.
The Act does not require such an inefficient method
of insuring compliance with mandatory safety
regulations." 581 F.2d at 862-63 (emphasis added
in last two sentences).
Although the majority opinion suggests otherwise (page 7), there
is no evidence that mine own.ers, either in this case or any other case,
establish contractual relationships with independent construction contractors so as to "exonerate" themselves from the contractors' violations.
Rather, in the normal situation an owner of a coal mine contracts with a
construction company to perform services that are beyond his area of.
expertise. In this regard, the Fourth Circuit, in BCOA v. Secretary, was
well aware of the role of the independent construction contractor when
it stated:
Mining companies frequently employ independent,
general contractors for both surface and subsurface construction work. These construction
companies build coal preparation plants, tipples,
conveyor equipment, storage silos, bath houses,
office building, power lines, roads, drag lines,
and shovels. They also construct underground
facilities, such as shafts, slopes, and tunnels.
Their work may be done before or after the mine
is in operation. The construction companies,
however, do not process the coal that they
remove. (547 F.2d 243)
Although it is true that the independent contractor is invited upon
the property of the mine owner to perform work promoting the interests
of the owner, as noted by the majority, this fact should not be the sole
basis of liability as suggested. The test as to liability should be
based on a party's ability to assure safety.

18

Under the majority decision, Republic's lack of control over the
independent contractor's actions and resulting inability to prevent the
latter's indiscretions has no bearing on liability. Failure to consider
these elements I find more than somewhat prejudicial to Republic.
Accordingly, the question now arises as to whether the facts in
this case can support a finding of liability on the part of Republic
under the test I would adopt.
There is no dispute that.the contractor was in complete control of
its employees who were engaged in the construction activity. There is
no evidence to even suggest that Republic had control. Roberts and
Schaefer failed to take respirable dust samples of its employees, not
Republic's. In fact, no Republic employee was in danger as a result of
Roberts and Schaefer's failure to comply with the law. Upon consideration
of the evidence of record, the only party that could have prevented the
violation and thus effectuated the purposes of the Act was Roberts and
Schaefer.
Given the factual situation presented in this case, I can not find
Republic in violation of the Act and accordingly would affirm the
Administrative Law Judge in Republic I.
In light of the above discussion, and the fact the Judge did not
consider the factual situation in Republic II but relied on a misinterpretation of statute, I would remand for hearing on the merits •

.....

19

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

April.11, 1979

Docket No. BARB 74-259
IBMA 75-57

SECRETARY .OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSH,

v.
COWIN AND COMPANY, INC.,
DECISION
This case is before the Commission on remand from the U.S. Court of
Appeals for the District of Columbia Circuit. United Mine Workers of
America
v. Kleppe, No. 76-1980 (D.C. Cir., May 26, 1978). l/ The
issue before the· Commission is whether Cowin and Company, Inc. (Cowin)
properly was issued a withdrawal order pursuant to section 104(a) of the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et
seq. (1976) (amended 1977) [the "1969 Act"]. '!:_/ For the reasonsthat
follow, we affirm the decision of the administrative law judge upholding
t.he withdrawal order and dismissing Cowin's application for review.
Cowin, a construction contractor, contracted with U.S. Pipe and
Foundry Company to construct new shafts at a coal mine owned by U.S.
Pipe. On November 3, 1973, when Cowin was engaged in the concrete
lining of one of the shafts, its worksite was inspected and a section
104(a) order was issued. The order stated that violations of the standards at 30 CFR §§ 77.1903(c), 77.1905(b), 77.1906(c), 77.1907(a) and
(b), 77.1908(b), and 77.1908-1 existed, and described the violative conditions as follows:
1/ The court remanded this case to the Secretary of Interior. It is
before the Commission for disposition pursuant to 30 U.S.C. § 961 (19.78),
l:../ Section 104(a) of the 1969 Act provides:
If, upon any inspection of a coal mine, an authorized representative 9f the Secretary finds that an imminent danger exists, such
representative shall determine the area throughout which such
danger exists, and thereupon shall issue forthwith an order
requiring the operator of the mine or his agent to cause immediately all persons, except those referred to in subsection (d) of
this section, to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the
Secretary determines that such imminent danger no longer exists.

79-4-5
20

The Ingersoll-Rand utility air hoist was being used to transport men and was not equipped with an accurate depth indicator. A
qualified hoistman was not operating the hoist and a second person
qualified to stop the hoist was not in attendance. No record was
maintained to i.ndicate that the hoist had been inspected prior to
hoisting of men. The hoist rope was not equipped with an adequate
number of rope clamps and the bucket was not provided with two
bridle chains, a wooden pole was being used for a bucket guide and
a crescent wrench was used to operate the air valves.
Cowin filed an application for .review of the withdrawal order and ahearing was held. On April 3, 1975, the administrative law judge issued
his decision affirming the withdrawal order, finding that an imminent
danger existed at the time of the issuance of the order. On appeal, the
Interior Department's Board of Mine Operations Appeals reversed the
judge's decision and vacated the withdrawal order. Cowin and Co.,
Inc., 6 IBMA 351 (1976). The Board based its decision solely on its
holding in Republic Steel Corp., 5 IBMA 306 (1975), rev'd, Republic
Steel Corp. v. Interior Board of Mine Operations Appeals, 581 F.2d 868
(D.C. Cir. 1978), in which the Board held that, in accordance with
Secretarial Order No. 2977, "the owner or lessee of a coal mine is the
sole party to be held absolutely liable for violations committed by a
coal mine construction contractor regardless of the circumstances." 5
IBMA at 310 (emphasis added)·. 2./
The United Mine Workers of America petitioned the Court of Appeals
for the District of Columbia Circuit to review the Board's decision. On
May 26,. 1978, the court of appeals granted the UMWA's motion to summarily vacate the Board's decision and remanded for further proceedings
not inconsistent with the court's decisions in Association of Bituminous
Contractors, Inc. v. Andrus, 581 F.2d 853 (D.C. Cir. 1978), and Republic
Steel Corp. v. IBMOA, supra.
We conclude that Cowin was an "operator" !!../ of a "coal mine" 2_/
under the 1969 Act for the reasons stated in Association of Bituminous

1./

For a discussion of the background and history of Secretarial Order
2977, see our decision in Republic Steel Corp., Nos. MORG 76-21 and
MORG 76X90-P, issued this date.
4/ Sec~ion 3(d) of the 1969 Act provides:
•{O]perator" means any owner, lessee, or other person who operates,
controls, or supervises a coal mine.
2_/ section 3(h) of th~ 1969 Act provides:
11
[C]oal mine" means an area of land and all structures, facilities,
machinery, tools, equipment, shafts, slopes, tunnels, excavations
and other property, real or personal, placed upon, under, or above
the surface of such land by any person, used in, or to be used in,
or resulting from, the work of extracting in such area bituminous
coal, lignite, or anthracite from its natural deposits in the earth
by any means or methods, and the work of preparing the coal so
extracted, and includes custom coal preparation facilities.

21

Contractors v. Andrus, supra, 581 F.2d at 861-862,. and Bituminous Coal
Operators' Association, Inc. v. Secretary of Interior, 547 F.2d 240,
244-246 (4th Cir. 1977). We further conclude that the withdrawal order
at issue in this case was properly issued to Cowin. Cowin does not argue
that its failure to comply with the cited standards did not constitute
an imminent danger. Rather, Cowin argues that its failure to comply
with the standards should be excused because an "emergency" condition
existed. Even if it is assumed that an "emergency" warrants the vacation
of an otherwise properly issued imminent danger withdrawal order, there
is no support in the record for the assertion in Cowin's brief on appeal
that an emergency existed. In fact, the only evidence relevant to this·
issue is testimony by the inspector that he was not aware of the existence
of any emergency. E_/
Accordingly, the

is AFFIRMED. ]_/

E_/

Cowin also argues in its brief on appeal that the Part 1977 standards
cited in the withdrawal order are inapplicable. Cowin did not raise
this argument before the judge. We do not address this argument raised
for the first time on appeal. Clinchfield Coal Co., 6 IBMA 319 (1976).
Cf. section 113(d)(2)(A)(iii) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1978).
7/
Cowin has not raised any question on appeal concerning the assignment of the burden of proof in this proceeding. Therefore, we do not
reach the judge's discussion of this issue. But see Old Ben Coal Corp.
v. IBMOA, 523 F.2d 25, 39-40 (7th Cir. 1975) (on petition for rehearing).

[Concurring opinion attached]

22

Backley, Commissioner, concurring in result:
While concurring with the result reached in this case, I would hold
Cowin liable as the proper party to be charged on somewhat different
grounds.
This case was remanded for further proceedings not inconsistent
with the court's decision in Association of Bituminous Contractors, Inc.
v. Andrus, 581 F.2d 853 (D.C. Cir. 1978), hereafter referred to as ABC),
and Republic Steel Corp. v. IBMOA, 581 F.2d 868 (D.C. Cir. 1978), ~
(hereafter referred to as Republic). I fully agree with the conclusionthat Cowin was an "operator" of a coal mine under the Federal Coal Mine
Health and Safety Act of 1969. 1/ That conclusion is clearly consistent
with the court's decision in ABC-which construed the term "operator" to
include independent construction companies. 2/ It is less clear to me
how my colleagues arrive at the conclusion that Cowin, rather than the
owner of the coal mine, is the proper party to whom the order of
withdrawal should have been issued, particularly in light of the majority
opinion in Republic Steel Corp., Nos. MORG 76-21 and MORG 76X90-P, issued
this date.
The court's remand instructions in this case were that our decision
was to be guided not only by the court's decision in ABC but also Republic.
As noted in my dissenting opinion in Republic Steel Corp., I read the
court's decision in Republic for the proposition that this Commission
was asked by the court to. make a policy determination as to which of
the options available in allocating liability would most effectively
assure the safety and health of the miner. I can find no discussion
of this point in my colleagues' opinion in this case.
It is noted that, following remand, the parties were requested to
state their positions regarding the action that should be taken by this
Commission. The Secretary took the following position: In a situation
involving a violation or hazard created by an independent contractor the
Secretary "has the option to cite either the independent contractor or
the coal mine operator [owner], and having made its election in this case,
the decision of the Administrative Law Judge should stand." ]_/
When the decisions issued today in Republic and Cowin are read
together, one conclusion is inescapable: the majority has deferred in
both cases to the discretion of the Secretary regarding the election of

1/
2/

]_/

30 U.S.C. §801 et~' (1976) (hereafter "the Act" or the 1969 Act.")
Although the 1969 Act did not explicitly_ include independent contractors
as "operators", the Federal Mine Safety and Health Amendments Act of 1977
[Pub. L. 95-164] modified the definition of "operator" to include "any
independent contractor performing services or construction at such mine."
30 u.s.c. §802(d) (1978).
Conference before the Chief Administrative Law Judge Broderick,
August 22, 1978, (TR. 8).

23

which party to proceed against, i.e., the owner or the independent
contractor.
For me, the question of which party is the responsible operator is
a factual determination to be made on a case-by-case basis. As noted
in my dissent in Republic, supra, I am convinced that the.responsibility
for the health and safety of the miners should be placed on the party
most able to prevent violations or hazards and to correct them quickly
should they occur. This test is especially valuable in circumstances,
such as present in this case, where the inspector at the mine site
determines there is an imminent danger to the miners. I am in complete
agreement with the following statement of the Board of Mine Operations
Appeals when this case was before them:
The citing of an operator who may be far removed
from the danger site may result in procedural and
administrative delay never contemplated by the
authors of the Act and permit a sufficient time
lag for the feared disaster to become a realtiy.
6 IBMA 351 at 365
In the facts of this case, Cowin was cited for the imminent danger
complained of even though it had been hired by U. S. Pipe and Foundry
Company to construct three shafts at a coal mine owned by U. S. Pipe.
The situation is similar to that in Republic in many aspects. In both
cases, an independent construction contractor, employed by the owner of
a mine, was working on mine property. In both cases control and supervision
of the work activity in that portion of the mine where the violation or
hazard occurred rested with the independent contractor. The contractor
in both cases was also in the best position to remedy the situation.
I find little difference in the two cases as far as the proper
disposition of liability is concerned. Thus, I would conclude that
Cowin is the proper operator to be charged in the subject order of
withdrawal.
Accordingly, I would affirm the Administrative Law Judge's decision
for the reasons stated.

24

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

April 11, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,

Docket Nos. PITT 78-458

On behalf of
DAVID FASULA,

v.
CONSOLIDATION COAL COMPANY
ORDER
The administrative law judge's decision in this case was issued on
March 5, 1979. On March 29, 1979, the judge issued an order purporting
to stay the effective date of his decision pending his ruling on a
motion for reconsideration. We granted a petition for discretionary
review in this case on April 11, 1979.
Neither the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§801 et~· (1978), };/nor the Commission's Interim Rules of Procedure,
29 CFR §2700.1 et ~·;, ]:_/ provide for a motion for reconsideration or a
stay of the effective date of a judge's decision once the decision is
issued. Cf. Penn Allegh Coal Co., Inc., Docket No. PITT 78-97-P (direction
for review and order, January 3, 1979). Accordingly, the March 29,
1979, order of stay is vacated. ~

--~-·---,--,-Q--'-'~~=·
=-Jero e R. Waldie, Chairman

~oner
#

r: ~p'4-trJ1.;

A. E. Lawson, Commissioner

~\~\Ufilt ~~OAbllM ')QOJ.9.. .

Marian Pearlman Nease, Commissioner

1/
2/

See section 113(d) of the 1977 Act.
See Interim Rules of Procedure 54 and .55, 29 CFR §§2700.54 and 55.

79-4-9
25

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

April 23, 1979
SECRETARY OF LABOR,
MINE SAFETY AND·HEALTH
ADMINISTRATION (MSHA),

v.

.:

Docket Nos:

HELVETIA COAL COMPANY,

PITT 79-12-P

KEYSTONE COAL MINING CORPORATION.

PITT 79-5-P
ORDER

On April 19, 1979, Helvetia Coal Company and Keystone Coal Company
jointly filed a motion to strike certain materials and references to
them from the Secretary of Labor's petition for discretionary review.
Helvetia and Keystone moved that the Commission strike an affidavit of
Donald K. Walker, Chief of the Health and Safety Analysis Center of
the Mine Safety and Health Administration, and a letter from Robert B.
Lagather, Assistant Secretary for Mine Safety and Health, to the
President of the Bituminous Coal Operators' Association, Inc. These
·evidentiary materials were submitted as part of the Secretary's
petition, but were not a part of the record before the administrative
law judge. Helvetia and Keystone assert that consideration of this
extra-record evidentiary material would contravene section 113(d)(2)(C)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §823(d)(2)
(C). That section states in part:
For the purpose of review by the Commission under
paragraph (A) or (B) of this subsection, the
record shall include: (i) all matters constituting
the record upon which the decision of the administrative law judge was based; (ii) the rulings upon
proposed findings and conclusions; (iii) the
decision of the administrative law judge; (iv) the
petition or petitions for discretionary review,
responses thereto; and the Commission's order for
review; and (v) briefs filed on review. No other
material shall be considered by the Commission upon
review. [Emphasis added.]

79-4-14
26

We agree that the evidentiary material attached to the petition
may not be considered by the Commission, and we accordingly strike it
and references to it from the Sec
ary's petition.

f

27

FEDERAL. MIN£ SAFETY At~D E--H:'.ll.lTH Rt.:VIE\AJ COMMISSION
OFFICE OF ADMCN;STRATtVE '-A\1-J JUOGF.S
4015 WrLSOi'J BOULEVARD
ARLINGTON, VIRGINIA 22203

April 3, 1979

·civil Penalty Proceeding

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

Docket No. BARB 78-653-P
A.O. No. 15-05046-02031V

v.
Alston No. 3 Mine
PEABODY CO/,L COMPANY,
Respondent
DECISION
AppearaIIces:

John H. O'Donnell, Trial Atton1ey, Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the petitioner;
Thomas F. Linn, Esquire, St. Louis, Mlssouri, for
the respondent.

Be fore:

Judge Koutras

This is a civil penalty proceeding pursuant to section llO(.~) of
the Federal Mine Safoty and Health Act of 1977, initiated by the peti·ti0ner against the respondent on August 24, 1978, through the filing
of a petition for assessment of civil penalty, seeking a civil pP.nalty
assessment for three _alleged violations of the previsions of mandatory
safety standards 30 CFR 75.400, 75.316, and 75.402, set forth in three
orders issued by Federal coal mine inspecto1·s in April ancl May, 1977.
Respondent filed an answer and notice of contest on September 7, 1978,
denying the allegations and requesting a hearing. A hearing was held
in Evansville, Indiana, on December 12 and 13, 1978, and the parties
submitted posthearing proposed findings~ conclusions, and briefs, and
the arguments set forth therein have been considered by me in the
course of this decision.
Issues
The principal issues presented in this proceeding are (1) whether
respondent has violated th:::: provisions of the Act and implementing
regulations, as alleged in the petition for assessment of civil pen·alty filed in this proceeding, and, if so, (2) the appropriate civil

28

penalty that should be assessed against the respondent for the alleged
violations, based upon the criteria set forth in section llO( i) of the
Act. Additional issues raised by the parties are identified and disposed of in the course of this decision.
In determining the amount of a civil penalty assessment, section
110( i) of the Act requires consideration of the following criteria:

(1) the operator's history of. previous violations, (2) the appropriateness of such penalty to the size of the business of the operator,
(3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the
violation, and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1.

The Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.

§ 801 !.£~··now the Federal Hine Safety and Health Act of 1977.

2.

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

3. Interim Commission Rules, 29 CFR 2700.1 !,!. seq_., 43 Fed, ~eg.
10320-10327, March 10, 1978.
Stipulations
The parties stipulated to the following:
1. The jursidiction of the petitioner and the presiding Judge
(Tr. 10) •

2. Any civil penalty assessed by me in this matter will not
adversely affect the respondent's ability to remain in business (Tr.
10).
3. Respondent is a large coal mine operator, and the mine in
question, in April 1977, was a large mine producing 5,800 tons of
marketable coal daily, employing 422 persons underground and 28 persons on the surface while operating 9 conventional units (Tr. 10, 14).
4. MSHA coal mine inspector Arthur L. Ridley was a duly autho. rized representative of the Secretary when he inspected the mine.
on April 4, 1977, and is a qualified coal mine inspector (Tr. 11).
Discussion
The petition for assessment of civil penalties in this docket
seeks assessment for three alleged violations, namely:

29

104(c)(2) Order No. 7-0145, 1 ALR, April 4, 1977, 30 CFR 75.400.
104(c)(2) Order No. 7-0215, 1 DLW, May 24, 1977, 30 CFR 75.316 •
.104(c)(2) Order No. 7-0233, 1 TML, May 20, 1977, 30 CFR 75.402.
On motion.by the petitioner, filed October 11, 1978, and granted
by me on October 13, 1978, Violation No. 7-0233, May 20, 1977, 30 CFR
75.402, was withdrawn. On motion by the petitioner, Violation No.
7-0215, May 24, 1977, 30 CFR 75.316, was settled by the parties, and
pursuant to Commission Rule 29 CFR 2700.27(d), the settlement was
approved by me after affording the.parties an opportunity to present
arguments on the record in support of the settlement, and a discussion
in this regard follows at the conclusion of this decision.
Section 104(c)(2) Order No. 7-0145, 1 ALR, issued on April 4,
1977, by Federal coal mine inspector Arthur L. Ridley, charging a violation of 30 CFR 75.400, states as follows:
Loose coal and coal dust ranging in depths from
4 inches to 30 inches in depth had been permitted to accumulate in the headings and throughout the last open crosscut of 7 rooms along the return air side of the 5th east
panel entries off the 1st north main entries beginning at
a point approximately 1225 feet inby the #6 entry of the
last main north parallel ~ntries and in an inby direction
for approximately 350 feet. There was an estimated 20 tons
of loose coal and coal dust. Dust samples 1, 2 & 3 were
taken. Responsibility of Steve Mccloskey and Richard Berry
section foremen.
Section 30 CFR 75.400 provides as follows: 11 Coal dust, i.ncluding.
float coal dust deposited on rock-dusted surfaces, loose coal, and
other combustible materials, shall be cleaned up and not be permitted
to accumulate in active workings, or on electric equipment therein. 11
Testimony and Evidence Adduced by the Petitioner
MSHA inspector Arthur L. Ridley testified that he was familiar
with the subject mine which is located in Ohio County, Kentucky, near
Centertown. It is a relatively large mine and employs 422 people underground and 28 on the surface, and at the time the violation issued, it
was operating with nine conventional units. On April 8, 1977, the
daily production was 5,800 tons. A conventional mining system is used
in mining coal, and he gave a description of the mining procedure
followed at the mine. He confirmed that he issued section 104(c)(2)
Order of Withdrawal No. 1 ALR, citing 30 CFR 75.400 (Exh. P-1) and
served it on Mr. Charles Short, the assistant mine foreman (Tr. 917).

30

Inspector Ridley testified he was at the mine to make a spot
inspection, and while walking through the return area on the unit in
question, he was looking about and saw a considerable darkness which
caused him to investigate further. Upon further investigation, he
found considerable accumulations of loose coal and coal dust that had
been left in the headings of the rooms. He saw coal ranging from '•
to 30 inches deep. He also saw spotty sections of coal in the second
open crosscut along about room Nos. 2, 3 and 4, arid which was subsequently cleaned up. The areas involved were active workings. With
regard to the width of the accumulations, there were places where it
was rib to rib and there were places where it was not. He stayed
from 4:30 a.m. (the time that he verbally issued· the order of withdrawal) to 9 p.m. to make a determination as to how much coal was
accumulated, and he estimated that he wrote the order on the surface
no later than 5 p.m. The accumulation consisted of loose coal and
coal dust, and he took samples with a sieve, a brush, and a scoop
across the floor and in a depth of approximately 1 inch deep and
sifted them (Tr. 18-27). Inspector Ridley identified Exhibit P-3 as
the laboratory analysis of the samples he took to support his order,
and he described the places where he took the samples and the method
used in sampling, and he indicated that the samples were taken from
the accumulations described by him in the order (Tr. 28-40),
Inspector Ridley testified that it was his opinion, based on
advancement of the working faces, that the coal which hf!.d accumulated
beyond the last room that had been worked out and the amount of time
tl:.'.1t it would have taken to produce the advancement, the accumula-·
tions came from normal production and had been in the mine in this
condition for approxi~ately 16 production shifts, i.e., 8 working
days. He indicated that he had previously worked as-an industrial
engineer and explained how he computed the duration of the accumulations. He stated that he spoke with Mr. Short about the accumulations and Mr. Short stated that they had only existed for 1 or
2 days (Tr. 40-53),
Inspector Ridley believed that the accumulations could have been
cleaned up in about 4-1/2 hours using the equipment available, namely,
scoops and shovels. The accumulations were dry ~nd he identified the
mine cleanup program (Exh. P-11). He indicated that he believed the
operator violated paragraph (A) of the cleanup plan which requires
clean~p of the. face of working places, At the time coal was being
produced, the area was, in fact, the face of a working place. Failure to clean up was a violation of th(~ cleanup plan which requires
that the ribs and bottom be cleaned as the face advances. In his
opinion, the cleanup program was not followed at the mine, and he
found coal as much as 30 feet deep in different locations across the
350 feet. It was obvious that there had bean no seriou~ attempt by
the loader to clean the rib floor (Tr. 53-60).
The nearest ignition point would have been on the working section.
The area had~previously been bolted, and unless there is evidence of

31

an adverse roof condition, it is possible to go back after an area has
been roof-bolted. Weekly checks are conducted in return room ~ntries
(in the return side of the mine where the air is returning from the
unit), in order to test for hazardous conditions. Checks are conducted of methane, velocities. of air, and volume of air, in order to
determine that the air is traveling with the proper push and velocity
and any other condition that might exist in the mine. Although he
has previously detected methane in the mine, none has been detected
in the panel of the working faces in question. The working face was
approximately 400 to 450 feet from the area nearest to where the
accumulation began. Assuming the coal accumulations were the result
of normal mining, there would be a time when the coal would be nearer
the working face, since that was exactly where mining was being done
and equipment was being operated. Certain men are required to travel
in this area at least weekly, namely, a certified mine foreman
examiner, and other employees may be in the area for b=ief periods
of time, picking up materials (Tr. 60-63).
Inspector Ridley considered the condition which he obse1·ved on
April 4, 1977, to be serious, since in the event an ignition should
occur in the panel, with the accumulation of dust and so forth, it
would propagate an explosion and would increase the hazard involved,
depending on where it occurred. He believes that explosives a~e commonly kept at the mine in the return entries, and that traveling at
its nor~al course of velocity, return nir will not reach the face
where ti1e men are presently working. Permanent stoppings separate
it from the fresh air and it goes into the return. In his opinion,
the operator should have known of the condition since it is the general policy to maintain ventilation across the last faces, and an
attempt had been m<Jde to open 11p the crosscut for ventilation and
the section foreman should have been aware of the conditions (Tr.
63-66).
Mr. Ridley observed no rock dust in the area of the accumulations, and Foreman McCloskey offered no explanation as to the accumulations (Tr. 67). He abated the citation on April 4, and he
believed the operator made every reasonable effort to remove the
accumulations as soon as possible. He observed part of the abatement, and three men were used to clean up. The accumulations were
removed from the mine and the area was rock-dusted (Tr. 68-73).
On cross-examination, Mr. Ridley testified that he took samples
to within 30 to 50 feet of the face. He described the sampling
process, and inc1.icated that he did not take a band or parameter
sample, but rather, took floor samples. The areas he cited had previously been rock-dusted to within 40 feet of the face. However,
production had ceased in those areas for some 8 days and the areas
where he found the accumulations were about 450 to 500 feet from the
active faces. He described where he traveled on the day of the citation, indicated that he saw no equipment, no men, no power set-ups or

32

equipment running, and stated that he believed men would pass through
the area on a weekly basis rather than daily. The area was not being
preshifted daily, and while it had been worked out, he did not
consider it to be abandoned (Tr. 73-84).
Mr. Ridley stated that although it is common to have some sloughing of ribs and top coal, in this instance, only a minor amount of the
accumulations resulted from such an occurrence. A working section consists of that ~rea inby the tailpiece of the belt to the working face.
The subject worked-out rooms were not located within that area, that
is, they were not between the loading place and the active f~ce and
therefore, this was not a working section. He did examine the weekly
examination book for hazardous conditions, but it did not indicate the
existence of accumulations (Tr. 84-88).
On the day that he issued the order, the miners who wanted to
reach the active working faces, did not have to go thr0ugh the area
cited in the order. Due to the fact that the battery-operated scoop
had to pick up a load and then travel about 500 feet in order to dump
it, the long traveling distance was part of the reason that it took
4-112 hours to clean up the. area. Since there was no one in the area
of the worked-out rooms at the time he inspected it, and he had seen
no evidence of people being in that area, there was no one to withdraw
from that immediate area. The nearest ignition point, which was the
explosive storage area, was approximately 250 to 300 feet away or
approximately 175 feet back from the working face in the room neck of
No. 6 entry, which is a return entry. The ultimate ignition point,
therefore, would be approximately 325 feet away from the accumulations. There would be occasions when it would be unwise to go into
an aband6ned area or an unworked area. It is a reasonable assumption
that the longer a particular area remains worked out and is not maintained for travel, the more the chance increases that there would be
a danger there (Tr. 90-95). Although there may have been rock dust
in the area, it was insufficient for him to detect it with his naked
eye (Tr. 97).
On redirect examination, Mr. Ridley testified that under the
definitio;;-which appears in 30 CFR 75.2(h), the area where he saw the
accumulations would not meet the definition of an abandoned area
because the particular area is required to be examined at least once
weekly, is regularly traveled, and is required to be ventilated (Tr.
97-99).
On recross-examination, he testified that the area in which the
alleged accumulations were found was ventilated, but he did not take
an anemometer reading or a smoke tube reading, nor did he pick up any
dust and drop it to watch the air move the dust. Despite the fact
that he did not perform such tests, he still maintained that the air

33

was moving through the area and that there were no obstructions to
prevent ventilation •. No report of the accumulations had been made.
If the area had been examined, then the.accumulations should h~ve
been noted in the books. However, he has no reason to believe that
someone may have intentionally disregarded the accumulations (Tr.
101).
In response to bench questions, he indicated that he believed
the area had been ventilated because on the day that the violation
issued, he had with him his flame safety lamp, which indicated that
there was a sufficient amount of oxygen and/or ventilation and that
the area was therefore safe to travel or work in. It is his opinion,
if an area is traveled at least once a week, then it is an area
regularly traveled for purposes of the standard (Tr. 103-105). However, he conceded that a flame safety lamp does not show air movement, and he did not know for a fact whether or not the last open
crosscut in the worked-out rooms was walked or inspected .(Tr. 106).
Responden~' s

Testimony an_~ Evidence

Steve HcCloskey~spondent 's~ift managei::_, testified that he
was aware of the order issued by Inspector Ridley on April 4, 1977,
and he indicated that on that day, he was approached by Charles Short,
assistant mine foreman, and was told that a witl1drawal order had been
issued due to an accumulation of coal on the bottom and around t11e
ribs of ·the No. 5 unit and that he should withdraw his equipment from
the faces of his regular unit and take every available man that he
had and go to the area and commence procedures for correcting th('.;
prcblem. He then went to this area with his men, who totaled approximately 11, including the mechanic. From the last open crosscut to
Where the COal had been found, T·!aS approximately 500 tO 60Q feet.
Prior to the issuance of the order, no work had been done in that
area ou tl1at day, and when he arrived on the unit, he saw no evidence of any recent activity in the area. It took approximately
1-1/2 hour's running time with the scoop to move the coal out, and
the scoop was used rather than the loader, due to the fact of the
distance from the area (Tr. 110-114).
Mr. McCloskcy identified Exhibit R--2 as copies of the preshift
reports covering the period March 17 to April 4, 1977, and he indicated that the area in question was not preshifted at anytime during
this period of time, and as an explanation he stated that there were
no men working in that area and to the best of his knowledge, no one·
would have any reason to go in the area and work or perform any duties
of any kind; There is no law that he is aware of that requires an
inspection of that particular area be conducted on a daily basis
(Tr. 115-123). He also otated that the preshift reports do not show
the presence of any accumulations, although it is normal and customary
for preshift mine examiners to note the accumulations of hazardous
materials on their preshift reports. In his estimation, 5 to 7 tons

34

of coal had to be loaded out of the area. The area had been cleaned,
prior to his arrival, and he believed that some of the loose coal or
loose material could have been the result of undercutting by a cutter
operator or could have resulted from weakened coal falling off the
ribs onto the floor. It is also possible that some top coal could
have broken loose and consequently fallen to the bottom, and there
also could have been places where the coal ribs had taken weight and
some of them had popped off to the mine floor (Tr. 124).
Mr. Mcclaskey testified that abandoned workings need not be
inspected, and he identified Exhibit R-3 as weekly examination reports
of hazardous conditions of methane for the weeks of March 19, 26, 31,
and April 2, all of which indicated no hazardous conditions for the
areas in question. He indicated that an active working is one where
men are required to work or travel daily (Tr. 125-127).
On cross-examination, Mr. McClaskey testified that the area cited
by Mr. Ridley had n~ta-;-yet been sealed, but that the No. 6 panel is
presently sealed. He identified the ventilation plan provision
(Exhibit P-6) which provides for the prompt sealing of all abandoned
areas. He believed an "abandoned area" was one where regular work,
such as extracting coal, is being ·performed. The area where the accumulations were found is not his responsibility, and Mr. Short is
responsible for that area. He indicated that he was call~d into the
area by Mr. Short to correct the problem of loose coal and coal dust.
He managed the removal of the material. It is possible that a smnll
amount of the accumulaticn could have resulted from normal mining
operations. He has seen som~ rashing or sloughing (i.e., m~terial
th:Jt wenthers and coa1 falls off in large lumps from--the ribs) in the
unit that he was working on, up in the headings as well as in the
return rooms. The lumps of coil that he observed on April 4, 1977,
ranged in size from fist-size to about half the size of a basketball
(Tr. 127-147).
On redirect ex.amin?..tion, Mr. McClaskey stated that he did not
believe the law required abandoned areas to be examined, and he
described the cleanup pro~ess. He stated that he' did not observe
the area b~fore the order was issued or before Mr. Ridley ariived
on the scene, but once there, he did not see any accum11lations as
deep as 30 inches as testified to by Mr. Ridley. In his view, an
area was an "active working" only if someone was required to go
there and perform regular duties on a daily basis (Tr. 148-157) •
.!_~ect_<2.~i_dley was called in rebuttal, and testified that he
had the mine ventilation plan with him when he cited the violation,
and he discussed the areas ~iere he found the accum11lations. He
testified th:1t while he noticed the beginnines of floM coal accumulations, they had not yet developed into a violation, but he asked
Mr. Short to include that condition in the rock dusting which was
done to abate the· citation (Tr. 184-187).

35

In response to further questions by respondent's counsel,
Mr. Ridley stated that he saw no activity in the area, and he observed
no evidence that weekly examinations had been conducted, that is, he
saw no times, dates, or examiner's initials posted in th~ area at that
time, but knows that they were being made thereafter in accordance
with iection 75.305 (Tr. 187-191).
Findings and Conclusions
Fact of Violation--30 CFR 75.400
Section 30 CFR 75 .400 provides that: "Coal .dust, including float
coal dust deposted on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein."
The term "active workings" is defined by 30 CFR 7::.2(g)(Lf) as:
'[A]ny place in a coal mine where miners are normally required to work
or travel."

1

Aside from the question of the presence of the c.ited accumula-tions, a threshold question to be decided is whether the area cited
by the inspector can be considered to be an "active working" within
the meaning of the cited safety standard.
Respondent's Arguments
In its posthearing brief, respondent ~rgues that the mine area
cited in the order iu question was not an ".s.ctive· workinf', 11 wit.bin
the meaning of section 75.400, or as that term is defined in 30 CFR
75.2(g)(Lf) ("ar,y place in a coal mine where miners are normally
required to work or travel"). In support of this argument, respondent cites the testimony of Ini:ipector Ridley on cross-examinati0n
indicating that the area was not an active working, thus contradicting his prior statement that he believed it was based on the fact
that the area was required to be preshifted once every 8 hours.
Respondent points out that the area had not been examined ·pursuant to
section 75.303 since March 17, 1977, the last time a preshift examination was made in the cited area, and asserts that on April 4, 1977,
the area cited was inactive or abandoned in the sense that all work
had been completed in the area and there were no plans to· return there
to continue further work. In support of this conclusion, respondent
cites the testimony of the inspector that he saw no one in the area;
observed no power setups or equipment, that the area had been "worked
out," that respoadent was not required to i.nspect the area during
preshift examination, and that he did not consider the area to be a
working section. Finally, respondent argues that the area cited was
in a set of rooms about 250 feet from the return air course which was
parallel to the last open crossuct in which the alleged accumulations·
were located, that from the return air course inby to the active

36

workings was at least an addit.ional 200 feet,. and the weekly examination for hazardous conditions made at the time the order was cited
did not include the area in question. In view of the foregoing,
respondent concludes that the area cited was not one in which men
were normally required to travel at the time the order was issued.
Petitioner's Arguments
Petitioner argues that respondent's interpretation of the term
"active workings" as an area where miners are required to work or
travel daily is erroneous, that the word "normally" as used in section 75,2(g)(4) is not ambiguous, and that the test must be whether
any miner must normally anytime work or travel in the area an<l, if
so, the area is an active working.
Regarding respondent's attempt to categorzie the area in question as an abandoned area, petitioner points out that the area had
not been sealed in accordance with the existing ventilstion plan
requiring all abandoned areas to be sealed promptly.
Since the
area was unsealed at the time of the inspection, petitioner argues
that it could not be deemed, under the ventilation plan, to be an
abandoned area, and respondent's definition of an abandoned area as
one where no regular duties such as extracting coal are any longer
performed, is not a ~alid definition. Further, petitioner cites the
legislatL1e history of the 1969 Act \?here Congress expressed a con. cern for abandoned.mine areas.
Petitioner agre~s with the inspector's conclusion tl1at the area
cited wan not a working section as defined by section 75.2(g)(3), but
points out that Old Den Coal Coinpany, 4 IBNA 198, 215 (1975), requires
loose coal to be kept free of active workings and did not re.gritc section 304(a) of the 1969 Act (75.400), so far as to allow acc~mulations
in all parts of a mine but the working section. Further, while it is
true that the area in question did not require preshift or onshift
examinations, it was required to be examined weekly under section
75.305. Consequently, petitioner asserts that the inspector was
correct in finding that the area was an active working.
After full and careful consideration of the arguments presented,
I conclude that petitioner's arguments in support of its position
that the cited area in question was, in fact, an "active working"
within the scope of the meaning of section 75.400 is correct, and its
arguments are adopted as my findings and conclusions on this issue,
and respondent's arguments to the contrary are rejected. The fact
that the area cited had not been preshifted persuant to section
75.303, that work had been completed there, and respondent did not
plan to return to the area to continue further work, is not particularly relevant. Further~ the fact that the inspector may have contradicted himself when characterizing the area is of no particular
significance since the question of whether the area was, in fact, an

37

active working must necessarily be based on all of the evidence and
facts adduced. Here, it is clear that the area had not been sealed
and abandoned pursuant to respondent's own ventilation plan.
Further, the area cited required weekly examinations pursuant. to
section 75.305. Consequently, it was an area where miners would
normally be expected to work or travel when conducting such examinations. Further, as pointed out by petitioner, the legislative history cited reflects that Congress expressed a special interest in
insuring that abandoned areas are maintained free of hazardous conditions. While it is true that the facts presented here <lo not support
a finding that the area cited was, in fact, abandoned, it cannot be
said that Congress ever envisioned a lesser concern for a mine area
which is clearly an active working. Congress expressed that concern
by enacting section 304(a), the statutory provision requiring that
active workings be kept free of accumulations of combustible
materials.
In Kaiser Steel Corporation, 3 IBMA !~89 ( 1974), MSHA established
that since an operator was required to inspect an air return twice a
day, that return was, in fact, an "active working" subject to the
requirements of section 75.400. The former Board of Mine Operations
Appeals reversed the judge's finding that MSHA h2d not proven the
return air course was an "active working" within the definition of
30 CFR 72.2(g)(4). Likewise, in Mid-Continent Coal and Coke Company,
1 IB:MA 250 (1972), the Board found tl;&t an entry was- an ' 1 active \Wrk·ing'' and therefore subject to the requirements of section 75.400,
since miners were required to go into the entry for the purpose of
inspecting a hi~1-voltagc cable, and as to.the micer that conducted
this inspection, the Board held that the accumulations of coRl dust
in that entry presented a potential hazard to him and that the entry
in that case was a place of normal work and travel.
In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD
pat. 22,087 (1977), motio~for reconsideration denied, 8 IBHA 196,
1977-1978 OSHD par. 22,328 (1977), it was held that the presence of
a deposit or accumulation of coal dust or other combustible materials
in active workings of a mine is not, by itself, a violation.
In that case, the Board held that MSHA must be able to prove:
(1)
that an accumulation of combustible material
existed in the active workings, or on electrical equipment
in active workings of a coal mine;

(2) that the coal mine operator was aware, or, by
the exercise of due diligence and concern for the safety of
the miners; should have been aware of the existence of such
accumulation; and

38

(3) that the operator failed to clean up such accu~
mulation, 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.

8 IBMA at 114-115.
As to the issue of "reasonable time," the Board stated:
As mentioned in our discussion of the responsibilities
imposed upon the coal mine operators, what constitutes a
"reasonable time" must be determined on a case-by-case evaluation of the urgency in terms of likelihood of the accumulation to contribute to a mine fire or to propagate an
explosion. This evaluation may well depend upon such factors as the mass, extent, combustibility, and volatility
of the accumulation as well as its proximity to an ignition
source.

8 IBMA at 115.
The Board further stated:
With respect to the small, but inevitable aggregations
of combustible materials that accompany the ordinary, routine
or normal mining operation, it is our ~iew that the maintenance of a regular cleanup program, which would incorpo·rate
from one cleanup after two or three production shifts to
several cleanups per production shifts, depending upon the
volume of production involved, might well satisfy the .
requirements of the standa::.·d. On the other hand, where an
operator encounters roof falls, or other out-of-the-ordinary
spills, we believe the operator is obliged to clean up the
combustibles promptly upon discovery. Prompt cleanup
response to the unusual occurrences of excessive accumulations of combustibles in a coal mine may well be one of the
m<rst crucial of all the obligations imposed by the Act upon
a coal mine operator to protect the safety of the miners.
Based on the preponderance of the credible evidence adduced in
this proceeding, I conclude and find that petitioner has established
a violation of·section 75.400 as charged by the inspector in his
order, and that its evidence in support of the violation more than
adequately meets the tests set down in the Old Ben case. Aside
from a dispute as to the actual weight of the total accumulations
eventually cleaned up and removed from the mine once the order
issued, I cannot conclude that the respondent has rebutted the
inspector's findings concerning the presence of the cited accumulations. The inspector's order describes the extent and location of
the accumulations, and I find his testimony in support of his order

39

to be credible. The inspector testified that the loose coal came
from prior normal opera-tions, and from the distance which the mining
cycle and face area had been advanced, he estimated that it had
existed for approximately 8 working days, or 16 working shifts.
Although one of respondent's witnesses suggested that the accumulations ~ay have resulted from weakened ribs falling to the floor after
the area had been worked out, he candidly admitted.that it was just
as likely that so:ne of the accumulations could have resulted from
normal mirting operations. Further, mine man~gement advised the
inspector that the accumulations had existed for 1 or 2 days, and
the shift manager was informed that the accumulations were present
and should be cleaned up on the very day of the inspection. In the
circumstances, I conclude and find that petitioner has established
that loose coal and coal dust existed as described in the order and
that respodnent failed to clean them up within a reasonable time
after thei should have been discovered.
During the course of the hea~ing, respondent's counsel took issue
with the laboratory analyses report concerning the incombustible content of the samples collected by the inspector to support his order.
The report was received over counsel's objections, and that ruling is
hereby reaffirmed. The testimony of the inspector reflects that he
followed the proper procedure in taking his samples, and respondent
has failed to rebut that testimony or the information resulting from
the laboratory analyses. I find that the action taken by the inspector
regarding the sampling supports the conditions cited. See Co-op
Mining_ Comp~, 3 IEMA 5.33 ( 1974); Coal Processing Corpo;;atic;n:2 IBMA 336 (1973); Consolidation Coal Corporation, 4 IBMA 255 (1975).
Size of Business and Effect of Penalty Assessment on the Respondent's
Ability to Remain in Business
The parties have stipulated that the respondent is a large coal
mine operator and that any civil penalty assessed by me in this matter
will not adversely affect its ability to remain in business, and I
adopt these stipulations as my findings in this· regard.
Negligence
I find that the evidence adduced supports a finding that the
respondent failed to exercise reasonable care to prevent the accumulations of coal and coal dust in the areas cited by the inspector, and
that this failure on respondent's part constitutes ordinary negligence.
The inspector's testimony regarding the duration of the existence of
the accumulations is credible, respondent's own witness admitted that
they existed for at least 2 days, and it is clear to me that they
should have been discovered and cleaned up earlier.

40

Gravity
The evidence adduced reflects that the accumulations in question
were approximately 400 feet from the working face wher:e mining was
taking place, a.nd the belts were 350 feet away. The nearest ignition
source was a storage area for explosives located in the room neck of
the No. 6 entry some 200 to 250 feet away. The cited area was being
ventilated, and since the inspector saw no tracks there, ~ have to
assume that no equipment was operated in the area. Although petitioner's brief, at pages 5 and 6, make reference to the presence of
"float coal dust," the citation as issued makes no such reference,
the inspector did not believe the presence of "float coal dust" was
a violation, and he indicated that he used a 20-mesh screen t6 take
his samples. Since float coal dust, as defined by section 75 .400-l(b);
is dust that can pass through a 200-mesh screen, I cannot conclude
that the evidence supports any finding that float coal was present,
The inspector found the accumulations some 200 feet ·from the
return air course in whch he was walking. However, he indicated that
he saw no one in the area, there were no power setups or e~uipment
present, and he considered the area to have been "worked out" and
not a "working section." Thus, it would appear that. the area, by
definition of "working section" as found in section 75 .2(g)(3), was
outby the loading point and working faces where normal mining activities took place, and there is no evidence that any mining activity
was taking place in the cited area.
Based on the foregoing facts and circumstances which prevailed
at the time the citation issued, I cannot conclude that the conditions cited were grave or posed a serious threat to the safety of
miners, noiwithstanding the inspector's belief that the violation
was serious because the accumulation could propagate an ignition or
explosion. I find that the evidence presented simply cannot support
that conclusion. Any potential ignition sources were far removed
from the accumulations, and petitioner obviously concurs in this
evaluation of the totality of the situation since at page 14 it
argues that the actual hazard an~ concern was the explosives stored
some 200 to 250 feet away. Lacking any ready ignition sources, I
fail to understand how the explosives, standing alone, posed any
real threat. Further, there is no evidence that the storage of the
explosives was not in compliance with any other standards or procedures, nor is there any evidence that the explosives were subjected
to any hazardous conditions. In the circumstances, the inspector's
finding that the violation was serious is rejected, and I conclude
that it was not.
History of Prior Violations
Petitioner introduced a computer printout of the prior history
of violations pertaining to the Alston No. 2 Mine (Exh. P-10). That

41

'·

history reflects a total of 712 paid violations for that mine during
the period January 1, 1970, to April 4, 1977. During that same
period of time, the printout reflects 71 violations of the provisions
of section 75.400. No evidence was produced with respect to respondent 1 s overall prior history of violations, and my findings on this
issue are therefore limited to the prior history of the mine in question as reflette~ in the printout. Based on the overall history ~f
the mine encompassing a 7-year period for which an average of some
100 citations yearly were assessed and paid, and taking into account
the size of the mine, I cannot conclude that the history of prior
violations is significantly large. However, with respect to respondent's prior track record concerning citations for section 75.400, I
find that it is not good, and that it appears that coal and coal dust
accumulation violations at the mine have been consistently occurring.
It seems clear that in enacting the civil penalty provisions of section
109 of the 1969 Act, now section llO(i) of the 1977 Acl, Congress
intended that a penalty assessed pursuant to section 109 of the Act
should be calculated to deter similar future violations and to induce
compliance. Robert G. Lawson Coal Company, 1 IBMA ll5, 117, 79 I.D.
657, 1971-1973 OSHD par. 15,374 (1972), F·urther, it has also been
· held that repeated violations justify a higher penalty than theretofore assessed as a method of deterring future violations of the same
standard. Old Ben Coal Company, 4 IBMA 198, 82 I.D. 264, 1974-1975
OSHD par. 19,723 (1975). Accordingly, I have taken this into account
in the civil penalty assessment made by me in this matter.
With regard to the matter concerning the corporate cha_nges which
took place concerning Kennecott Copper's sale of stock to the Peabody
Holding Company, and the effect of that transaction on the respondent' g prior.history of violati0ns, petitioner points out that the
arguments advanced by respondent in this regard are inappropriate in
this proceeding because the violation took place on April 4, 1977,
prior to the stock transfer of July 1, 1977. In this regard, I take
note of the fact that this issue waG raised by the respondent in a
recent proceeding, MSHA v. Peabo~~oa l Company 1 BARB 78·-60!)-P,
decided by me on March 26, 1979. In that case, I rejected the defense
advanced by the respondent, and to the extent that it is reasserted in
this proceeding, it is likewise rejected, and my findings and conclusions previously made on that issue are herein incorporated by
reference.
Penalty Assessment
Petitioner asserts that a civil penalty in the amount of $5,000
is reasonable for the violation. Taking into account the prior
history of section 75.400 violations at the mine, the size of the
respondent, and the fact that the cited accumulations existed over a
long period of time without being cleaned up, petitioner's recommendation does not appear to be totally excessive. However, considering
my gravity findings, and the fact that the conditions were cleaned

42

up promptly once the order issued, I believe that a civil penalty of
$4,000 is warranted, and that this should pro~pt mine management to
give more attention to the requirements of section 75.400.
Proposed Settlement
With regard to section 104(c)(2) Order of Withdrawal No. 1 DLW
(7-215), May 24, 1977, citing 30 CFR 75.316, th~ parties proposed a·
settlement in the amount of $2,500. Petitioner's Assessment Office
recommended a civil penalty of $5,000 for this violation. Arguments
in support of the proposed assessment were presented on the record
and petitioner argued that while the viol2tion was serious, the
Assessment Office's finding that "a shift of the roof or ribs could
occur and cause a roof fall which in the return air would not be
separated from the belt entry in such a manner as to seriou~ly
jeopardize the health and safety of the workmen in the section" is
"nonsense" since the ventilation plan permits the brattice curtain to
be hung on a very light wood frame and if the roof fell on such a
fra~e, it would smash the frame just as much as if the frame were
hung on the unauthorized two bo.:ir<ls which were, in fact, used by the
operator when the inspector observed it. After consulting with the
inspector who issued the order, and who was present in the he&rin.g
room and agreed that the Assessment Office was mistaken as to the
facts when it proposed its assessment, petitioner's counsel asserted
that the ventilation was not affected by the improperly hung curtain.
Under the ci.rcumstances, this fact, coupled with the mistaken e~alua
tion of the gravity presented by the conditions cited) and the fact
that the condition WdS abated the same day the order issued, counsal
asserted that petitioner considers $2,500 to be an appropriate civil
penalty for the. violation and respondent stipulated that payment in
that amount would be made (Tr. 4-8).
In view of the foregoing, I find and conclude that the proposed
settle111ent should be approved, and pursuant to Commi8sion rule 29 CFR
2700.27(d), it is ordered that the settlement reached by the parties
be approved.
ORDER
In view of the aforesaid findings and concl~sions made in this
proceeding, including the approval of the proposed settlement proposed
by the parties, IT IS ORDERED:
1. Respondent shall pay a civil penalty in the amount of $4,000
for a violation of section 75.400, as set forth in Citation No.
7-0145, April 4, 1977, payment to be made within thirty (30) days of
the date of this decision.

43

2. Respondent shall pay a civil penalty in the amount of $2,500
for a violation of section 75.316, as set forth in Citation No. 7-0125,
May 24, 1977, within thirty (30) days of the date of this decision.
; ,//'

)

. _7

~>:~;;---:~4
· t2 {i-::~-.,~ -Z-r.?·-··-<I
Ge·orge R.· (Koutras
·
Administrative Law Judge
Distribution:
John H. O'Donnell, Trial Attorney, Mine Safety and Health Administration, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203
Thomas F. Linn, Esquire, Peabody Coal Company, 301 North Memorial
Drive, St. Louis, MO 63102 (Certified Mail)
Standard Distribution

44

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRJ\TIVE LAW JUDGES
4015 WllSON BOULEVARD
ARLINGTON, VIRGINIA 22203

April 3, 1979

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSP...A),
Petitioner

Civil Penalty Proceeding
Docket No. HOPE 78-722-P
A.O. No. 46-01398-02020F

v.
Shannon Branch UG Mine
ALLIED CHEMICAL CORP.,
Respondent
DECISIDN
Appearancef'~

William Moran, Trinl Attorney, U.S. Department of
Labor, Ailingtofr, Virginia, for the petifio~er;
Lee F. Feinberg and William T. Brotherton III,
Esquires, Charleston, West Virginia, for the
respondent.

Before:

Judge Koutras
Statement of the Prcceedi~~

This proceeding concern~ a petition for assessment of civil penalty filed by the petitioner against the respondent on August 28, 1973.
pursuant to section llO(a) of the Federal Mine Safety and Health Act ·
of 1977, 30 U.S.C. § 820(a), charging the respondent with one alleged
mine safety violation issued pursuant to the 1969 Federal Coal Mine
Health and Safety Act. Respondent filed a timely answer in the proceeding, asserted several f~ctual and legsl defenses, and a hearing
was held in Charleston, West Virginia, on January 17, 1979. The
parties filed proposed findings and conclusions, and the arguments
contained therein have been considered by me in the course of this
decision.
Issues
The principal issues presented in.this proceeding are (1) whether
respondent has violated the provisions of the Act and implementing
regulations as alleged in the petition for assessment of civil penalty filed in this proceeding, end, if so, (2) the appropriate civil
penalty that should be assessed against the respondent for the alleged
violation, based upon the criteria set forth in section llO(i) of the
Act. Additional issues raised by the parties are identified and dispos~d of in the course of this decision.

45

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

1. The Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. § 801 et seq., now the Federal Mine Safety and Health Act
of 1977, P.L. 95=l6~effective March 9; 1978.
2.

Sections 109(a)(l) and (a)(3) of the 1969 Act, 30 U.S.C.

§§ 819(a)(l) and (a)(3), now section llO(i) of the 1977 Act.

Discussion
During the evening shift of Septemher 8, 1977, Thomas M. Williams,
motorman on the No. 20 locomotive, and Larry Gibson, the brakeman,
were orerating the locomotive while hauling 28 trips of loaded r:iine
cars underground in the mine in question. During the course of their
travel, the locomotive trolley harp assembly which supplies power to
the loc~motive became disengaged and as a result of that loss of power,
Mr. Williams was unable to stop or otherwise control the locomotive
and it subsequently derailed. Mr. Gibson jumped from the moving locomotive before it was derailed and was killed when he apparently struck
one of the ribs at the point ~1ere he jumped. Mr. Williams stayed with
the locomotive for approximately 1,000 feet further from the point
where Mr. Gibson had jumped, and after being unable to stop the locomotive, he too jumped into a wide entry prior to the derailment and
sustained injuries.
The alleged violation and applicable mandatory safety standard
in issue in this proceeding are as follows:

Section 104(a) Order Nos. 1 HS and 1 GLS, dated September 9,
1977, cites a violation of 30 CFR 75.1404, and states as follows:
The pneumatic braking system on the No. 20 locomotive
being used for coal haulage purposes was not sufficient to
control a trip of 28 loaded mine cars which were involved
in a run-a-way trip. The brake shoes were not properly ·
aligned with the trucks and could not apply uniform frictional pressure on the braking surface. The linkage for
the manual brake was disconnected completely. 75.1404.

46

The orders were terminated on September 16, 1977, after abatement of
the conditions cited, and the notice of termination states: "The
required conditions to be corrected on No. 20 locomotive were
corrected."
Testimony and Evidence Adduced by Petitioner
MSHA inspector Jmaes E. Kaylor testified that he has had experience in visually inspecting track haulage equipment, including locomotives, as part of his duties, and that he has an understanding as
to how the locomotive braking systems operate. He can tell when a
braking system is functioning properly and when it is not, can identify the parts of a braking ·system, and can determine \vhether a braking system is properly aligned and adjusted. He went to the mine on
September 8, 1977, upon instructions from his supervisor to conduct
a fatal accident investigation. He described what took place during
the course of his investigation, including what he found at the scene
of the locomotive derailment and the point where the accident victim,
Brakeman Gibso~ jumped from the locomotive and was killed (Tr. 4-16).
Mr. Kaylor testified that at the time of the accident, the locomotive was pulling 27 mine cars, each of which weighs 4 tons, with a
load having a capacity of 15 tons each. Company policy at the time
limited the trips to 25 mine cars. The locomotive derailed onto a
derail track, but did not overturn. It simply left the rails and slid
on the rails and sustained. no visible dam&ge. The day after the accident, the respondent was allowed to remove the locomotive and cars
from the mine, but while it was still underground, he had an opportunity to visually examine the locomotive braking system and his
visual examination revealed that the brake shoes were but of line
with the wheel trucks and the flange on the brake shoe was wearing on
the wheel flange. MSHA inspectors Gerald Smith and Junior Sizeno1·e
also observed the locomotive, conducted a more extensive examination,
and they concurred in his evaluation that the brake shoes were not
properly aligned. In his opinion, the derailment of the locomotive
did not cause the braking system to become misaligned and unadjusted.
The flange was worn practically off one end of some of the brake
shoes. He saw no visual evidence of any brake skidding at the scene
of the accident, and this indicated that the brakes or wheels were
not frozen or applied. Three wheel skids used as an additional
braking device to slow the locomotive down were found at the scene
and they were apparently dislodged from their normal position under
the wheels in the process of derailment (Tr. 16-25).
Mr. Kaylor identified Exhibit P-10 as 8 locomotive inspection
report dated June 18, 1977, concerning the No. 20 locomotive, and he
indicated that it was obtained by MSHA Electrical Inspector Sizemore
during his review of company records which are required to be maintained, and that Mr. Sizemore advised him that he could find no other
reports or files covering the period June 18, 1977, to the date of

47

the accident. Mr. Kaylor did not know whether the No. 20 locomotive
was inspected during this period of time. Section 75.512 of the mandatory safety standards requires that reports be maintained of weekly
inspections of electrical equipment (Tr. 25-37, 44).
Mr. Kaylor testified that during his investigation, he examined
the trolley wire, could see no lubrication applied, and he also discovered the trolley pole harp assembly near the top of 18 Hill going
down the hill at the 2 Right parallel where the track enters a side
track. The trolley harp connects with the trolley wire and serves
as a means of supplying power to the locomotive. The dislocation of
the harp assembly from the trolley pole results in a loss of power,
and this in turn results in a loss of the braking systems becarise
the air compressor shuts off and the only air remaining is that left
in the air tanks (Tr. 12-13, 38-39).
Upon observation of the locomotive controls at the scene of the
accident, Inspector Kaylor observed the power tram controller in the
wide-open position, the sand lever open, and the pneumatic brake le~er
open, and with these controls open, air pressure will be lost, but the
sander would provide additional traction anJ increased braking ability.
In addition, the brake lever was engaged (Tr. 39-43),
On cross-examination, Mr. Kaylor testified as to his training
and experie11ce i~ conducting mine inspections and accident investigations, and ~1ile he has had no formal training regardin~ the actual
working of brake shoes, he has observed numerous brake shoes on lor.omotives and has gained his knowledge through experience. He explaine~
and detailed his understanding of how a locomotive brake operates,
He also described a brake shoe flange, and indicated that the fl~nge
on the brake shoe in question was practically completely worn off the
shoes which he observed. He observed all eieht br<!ke shoes on- the
locomotive underground and six of them had worn flanges and two
appeared to be in good shape. The worn flanges resulted in the braking surface of the shoe not being applied to the full surface of the
wheel. When he looked down inside the locomotive, the brake shoes
were backed off the wheel due to the loss of air pressure and he could
observe where the flanges were worn, but he could not tell how much of
the brake shoe surface was on the wheels when the brakes were applied.
Some part of the flanges on each of the six shoes was worn away, but
he conducted no tests to determine how much of these brake shoe surfaces would touch the wheel and his examination was visual. However,
he .believed that if only part of the brake shoe is touching the wheel,
then that brake shoe, which was designed for the locomotive, would
not be doing the job that it was designed to do (Tr. 45-59).
Mr. Kaylor stated that the distances and grades described in his
accident report were obtained by scaling from a mine map, but he could
not recall whether he did the scaling. The locomotive was still.
upright after it derailed, had no external damage, and he concluded

48

that Mr. Gibson possibly could have suffered a bruise or two had he
ridden the locomotive and not jumped, He also indicated that as a
general rule, it is far safer to ride the motor rather than to jump.
His investigatiort revealed that the trolley pole harp probably caught
in a junction point where two wires came together. The harp was in
good condition, and he did not issue a violation for it not being
lubricated. He was not sure whether any other inspector did, and
indicated that-if it is not in his report, then no violation was
issued. The 4~000-foot distance mentioned in the report was derived
from the mine map and the overall 5-percent grade for that distance
was supplied by the respondent. ·He also testified as to the position
of the controls as he found them, and described the dydamic and pneumatic braking systems in terms of efficiency and how they are applied
and used. lle agreed that section 75.512 does not require that a locomotive be inspected during a vacation period or a strike and it is not
a violation to leave it uninspected during that time (Tr. 60-78).
On redirect, Mr. Kaylor testified that a misaligne~ brake shoe
is hot as efficient as an aligned one, that the manufacturer has certain requirements as to how to install brake shoes, and that alignment is important to braking efficiency. Based on his experience,
he believed that with the brake shoes misaligned as they were~ the
braking effect is not what it would be if ttey were properly aligned.
The brake shoe flange is designed to hold the wheel or shoe in line
and is not designed for braking or stopping the locomotive. The size
of any trip is not governed by any regulation, but is fixed by company
policy with safety in mind and after considering the size of the
trams, motors> and the graders involved. Although only three skids
were found, it is just as likely that four were used. He was not
sure whether trolley wire lubrication is ·required by regulation and
believed that ~uch lubrication with a graphite base tends to keep the
trolley harp in contact with the trolley wire (Tr. 80-a - 80-e).
In response to bench questions, Hr. Kaylor stated that being out
of line, the brake shoes were not wearing the way they were designed
to wear. Normally, the flange of the shoe is supposed to ride over
the wheel flange, but in this case, it was riding on top of it. The
condition was not a normal wear and tear situation (Tr. 80-85). He
did not know how much surface of the worn brake shoes touched the
wheels, and the flanges were worn in parts and the entire flanges
were not worn (Tr. 80-84).
MSHA electrical inspector Gerald F. Smith testified as to his
mining experience and training, and he assisted in the accident investigation conducted at the mine on September 9, 1977. He is familiar
with braking systems and how they operate, he can identify a properly
working system from one which is not properly working, and he knows
how to test such systems to determine whether they are properly working. Upon visual observation of the locomotive at the scene of the
accident underground, with the guards removed, he determined that the

49

brake shoes were not aligned with the trucks of the locomotive. He
is familiar w~th the No. 20 locomotive braking system and indicated
that it has a dynamic or electric brake which acts as a speed reducer
similar to down-shifting an automobile. The locomotive had a dual
braking system, namely, the dynamic brake and the pneumatic, or air
brakes. He described the pneumatic braking operation, and also indicated that the locomotive also had a manual or mechanical brake, but
it was disconnected and it is u~ed as a parking brake (Tr. 84-89).
Mr. Smith identified Exhibit P-11 as a sketch representing a
properly and improperly aligned brake shoe, but the sketch is not
intended to depict what the actual brake shoes which he observed
looked like. From his observations concerning the wear on the. flange,
he assumed that it was making contact with the wheel surface, but no
pictures or actual sketches were made and the wheels were not dismantled. The basis for his determination that the brakes were improperly
aligned was the fact that there was excessive wear on the flange and
this led him to conclude that the brakes were misaligned (Tr. 90-95).
Mr. Smith stated that the manual brake installed on the locomotive was required to be maintained as a matter of MSHA policy and
guidelines, and once installed, it had to be maintained operative.
The locomotive had a dual braking system which complied with section
75.1404 (Tr. 98-99). After the locomotive was removed to the surface
and brought to the main shop, it was tested again. He observed the
locomotive again from a.pit which allowed him to view it from the
bottom. He observed that two straps which serve to tie or hold the
brake ring in position, were broken, two were bent, and two were
missing. Power was put on the locomotive and the pneumatic braking
system was inoperative in that the brake shoes did not set. When
this occurred, company o"fficials immediately began to find out why
the system was not working (Tr. 103-105),
Mr. Smith stated that in issuing the section 104(a) order, he
did not consider the number of car trips involved, or the gnide of
travel when he made the judgment that the brakes were inadequate or
that the faulty brake system would not stop the locomotives. He
simply considered the condition of the equipment and assuming he
walked into a mine and found the same locomotive with the same brake
condition, he would again conclude that they would not stop the locomotive. If the brake shoes did not apply uniformly to the locomotive
wheels when pressure was applied, then he would conclude that it did
not have adequate brakes. He assumed the flanges of the brake shoes
were coming in contact with the wheels due to the wearing of the
flanges and the flanges are not designed to be used as braking surfaces (Tr. 109-113).
Mr. Smith stated that no tests were conducted on any of the
locomotive wheels to determine how much of the braking surface was
present or whether the flange presented a problem (Tr. 114). He

50

issued the 104(a) order because he believed the locomotive braking
system was inadequate to control the locomotive. It is adequate
only if properly maintained as designed (Tr. 118). Mr. Smith stated
that when the locomotive was tested .outside the mine, the pneumatic
brakes were set, power was put on the locomotive, the locomotive was
put in forward motion, but ~1en the brakes were applied, they did not
stop the locomotive (Tr. 119-121).
On cross-examination, Mr. Smith stated that mine management made
no response when the brakes failed to hold during the test and he
could not recall Mr. Halsey telling him that the brake shoes would
not touch the wheels because the locomotive had been dragged through
mud, and he knew nothing about how it was brought to the surface.
Mr. Halsey asked to put the power on so that he could show that the
brakes would hold. Mr. Halsey also set the brake and then put the
locomotive in motion again and the brakes failed to hold again. The
tests were conducted on a Saturday, September 10, and when he returned
on Monday, the brake shoes were taken off the locomotive (Tr. 121-125).
Mr, Smith testified that he did not physically attempt to determine whether the misaligned brake shoes were touching on the loc:omoti ve wheels and he made his determination by visual observation.
No one ever engaged the brakes in order to observe whether the shoes
were contacting the wheels. On two of the six brake shoes, the
flanges were severely worn, and the remaining four were out of adjustment to the point where the flanges were making contact instead of the
surface of the shoe. The mechanical parking brake has nothirig to <lo
with the dual braking system, and he had no quarrel with the dynamic
brakes. The violation centcis on the fact that the pneumatic brake
shoes at some times apparently would not have contacted the wheels.
He did not know whether the bent and missing straps came off in the
wreck. Based on the flange conditions, he believed that the brake
shoes did not touch the wheels on six of the eight wheels (Tr. 129140).
On redirect, Mr, Smith reiterated that there were eight locomotive wheels, and eight brake shoes, six of which were not properly
aligned and showed wear. Two of the eight shoes· appeared to have
been properly aligned, He did not watch the shoes actually being
applied to the wheels and he confirmed his opinion that the shoes
were not capable of stopping the locomotive and were not properly
aligned by the two tests conducted on the surface by Mr. Halsey (Tr.
142-144).
Inspector Kaylor was recalled by MSHA and testified as to the
orders he issued in this case, and he identified the report of investigation he compiled. He believed the violation was serious, and
that the respondent should have been aware of the brake conditions
through the weekly examinations and reports. The brakes can be
readily inspected visua1ly to determine whether they are misaligned.
The condition cited was abated in good faith (Tr. 154-162).
·

51

Mr. Smith stated that the fact that no additional inspecti6n
reports were found does not indicate that the brakes were not ·
inspected for alignment (Tr. 166).
Testimony and Evidence Adduc~d by Respondent
Bud~y E. ~aines, general superintendent of the Shannon Branch
Mine, testified that he was aware of the accident in question and he
described the route taken by the locomotive in question on the day
of the accident, the loads of coal it was pulling, and Locomotive
Operator Williams' activities that day based on the accident investigation report. He also described the general terrain and the track
grades over the area traveled by the locomotive, and described the
area from a mine map (Exh. R-1). ·He testified that from the 2 North
parallel area, where the locomotive harp was lost, to the point of
the derailment, the average travel grade is 1 percent descending
downhill, but the area also has uphill grades and steeper grades (Tr.
203-216).

Mr. Raines testified that mine policy', established in 1972,
fixed the limit that a locomotive could transport to 25 mine cars of
coal. Prior to that time, there was competition among the motormen
who often pulled more than 25, and as many as 30, and 25 was fixed
as the limit after consultation with the uriion committeemen and
motormen who decided that 25 was r1 "comfortable limit, 11 ·and the
rotary dump track can only handle 19 cars, with room enough to
store the remaining six cars on a side track entry. He has observed
locomotives traveling underground and normal speed traveling downhill would be about 10 miles per hour and any speed over 10 would be
fast. The speed in the 21 left area would average 5 to 7 miles per
hour (Tr, 216-220).
Mr. Raines testified that the company was concerned about whether
the 25-car load limit had been exceeded on the day in question. He
participated in the company accident investigation and did not know
what happened to the brake shoes in question. The map previously
referred to, was prepared for the purpose of conducting some tests
related to the accident. According to his calculations, the distance
from where the har·p came off to the point of the derailment where
the locomotive came to a stop, is 4,230 feet, and the distance from
the top of 18 left hill to whe+e the locomotive stopped, is 7 ,030 feet
(Tr. 220-228).
Safety was one of the factors consi,dered. in limiting the loads to
25 mine cars. There is no company policy concerning proper locomotive
speed, speed limits are not posted in the mine, and a locomotive does
not have a sp.eedometer. Locoraoti ve destinations and movements are
controlled by the dispatcher, and he does not control speed, but does
control various locomotive checkpoints (Tr. 228-230).

52

On cross-examination, Mr. Raines testified that state law
requires that a locomotive travel no faster than track conditions permit and actual speed is left to the judgment. and experience of the
motormen. The locomotive was pulling 27 mine cars at the time of the
accident (Tr. 232).
On redirect, Mr. Raines stated that the statement attributed to
Mr. Waters to the effect that Locomotive Operator Williams could handle
27 trips is found in MSHA's accident report, but did not mention that
Mr. Waters told everyone that he believed that his order to limit it
to 25 trips was obeyed. The speed of a locomotive depends on a number
of factors, including the number of trips, sand, brakes, slope, skids,
and the weight of the motor, and the number of cars pulled is not the
sole factor in determining stopping distance or speed. Locomotive
speed limits are not regulated by statute or safety regulations and
he knows of no mines which post such speed limits (Tr. 234-235).
In response to bench questions, Mr. Raines stated that no one
calculated the speed of the locomotive at the time of the accident
(Tr. 236).
William E. Funsch is employed by the General Electric Cpmpany,
the manufacturer of Locomotive No. 20, the locomotive involved in the
accident. He is a graduate of the University of Oklahoma, has
28 years' experience in pneumatics, and has designed and tested industrial and mining locomotive braking systems. He is familiar with the
No. 20 locomotive braking system snd it has four independent braking
systems, namely, a dynamic brake, a straight service air brake) a
truck (wheel) emergency brake, and a parking brake. The parking brake
is also referred to as a mechanical brake. The auxiliary biaking
system is a completely independent system installed as an additional
feature to cover a weak link in the system, namely, an air hose that
goes between the main locomotive frame and the trucks which swivel.
The hose is subject to abrasions, ~nd should it break or become
severed, the emergency system is designed to automatically supply air
to the four brake cylinders (Tr. 240-242).
Mr. Funsch testified that the No. 20 locomotive has eight wheels,
each with a brake shoe, and four braking systems. He calculated the
stopping distance of the locomotive, and based on (1) a 1-degree
slope, (2) speed of 15 miles per hour, which he considers excessively
fast, (3) the weight of the locomotive, (4) the weight of 27 loaded
mine cars, and (5) a factor of sliding friction caused by the use of.
wheel skids, he calculated that it would take 57.7 seconds, or roughly
1 minute, for the train to stop over a distance of 589.3 feet. Assuming suffi~ient air pressure is in the braking systems, Mr. Funsch
testified that the No. 20 locomotive, with 27 loaded cars, could have
stopped w:i. thin the 4, 230 feet, .which is the distance from wher~ the
harp came off to th~ point of derailment~ without any difficulty, and
that distance was seven or eight times the distance required to bring
the train to a stop (Tr. 244-246).

53

Mr. Funsch stated that the pneumatic brake system operates by
supplying air from two main reservoirs, through a brake valve, to
four brake cylinders which exert force on the brake shoe, pushing it
against the wheel, thereby generating friction, which retards the
rotation of the wheel, thus slowing the train down (Tr. 247).
On cross-examination, Mr. Funsch testified that he sells locomotives to various coal mine operators, including the respondent.
He has never seen the No. 20 locomotive, did not examine it after
the accident, and has not seen the brake shoes or examined the braking system in question. His testimony is based on the plans and
construction of the locomotive, including his underground mine
experience, but he did not know whether the brake shoes in question
were misaligned, The auxililary truck emergency braking system was
designed as an integral part of the locomotive as a standard feature

(Tr. 248-250).
Mr. Funsch stated that operating instructions come with the sale
of a locomotive, including the operation 6f the braking system, and
he explained the use of the emergency system. Assuming the brake
shoes were improperly aligned or adjusted, this would affect the
motion. However, a loose brake shoe hanger will wobble, but will
seek the flange on the wheel and will center on the wheel and gross
misalignment does not occur. The purpose of the wheel flange is to
keep the shoe in line and to create more brake shoe area on the
wheel. Using only the flange for the braking of the wheel creates
a dangerous situation (T~. 250-256).
Mr. Funsch stated that wetness, mud, or oil would have a great
effect on the friction factor as applied to the brake surfaces and
that an increase in the grade of travel would increase the distance
required to stop the train. This stopping distance calculation did
not take into account human error or panic in the operation of the
locomotive. He was not paid to a~pear as a witness and his testimony
is voluntary. However, he testified that his company has not sold a
locomotive to the respondent since 1957, and he is not in the marketing of his company's business (Tr. 258-262).
On r~direct, Mr, Funsch stated that the emergency truck brake
is not used in the normal stopping of the pneumatic air brake system.
The locomotive in question bas a dual braking system within the meaning of section 75.1404, namely, the dynamic brake and the pneumatic
brake, Referring to Exhibit P-11, Mr, Funsch stated that the small
line on the diagram in the center of the wheel indicates that the
brake shoe flange: is riding on the \·1heel flange and is an unstable
condition and will eventually wear down the brake shoe flange (Tr.

263-268).
Thomas M. Williams has been employed by respondent for 13 years
and has 37 yPars' underground experience in the mining industry. He

54

was employed as a motorman on September 8, 1977, and had been employed,
in that capacity for 20 years. He was the operator of the No. 20
locomotive on the day of the accident, and Mr. Larry Gibson was
assigned as the brakeman. Mr. Williams described his movements during the shift when the accident occurred. He performed a routine
inspection of the locomotive, including checking the skids, trip
light, fire extinguishers, and all the safety devices. After speaking with the dispatcher, he moved the locomotive and checked his sand
supply and the brakes and they were in satisfactory condition (Tr,
272-277).
Mr, Williams testified that his job entails nulling loaded mine
cars and picking up empties and he goes where the dispatcher tells
him to. He described his route of travel on the day of the accident,
and indicated that earlier in the shift, he had traveled to the area
below 2 North parallel with 22 empty mine cars and had no difficulty
stopping on Hill 18 and his electric brake and air braJr.e were \,,orking satisfactorily. He picked up 11 loaded mine cars at 6 North and
proceeded to 27 where he picked up 16 loads after dropping off the
11 car loads and his brakes were operating. He stopped the cars by
means of sand and his air brake, He then recoupled the 11 car loads
to the 16 which he had picked up and then proceeded to the 21 left
junction where he stopped his load by means of sand or air brnkes with
no difficulty. While .awaiting further instructions from the dispatcher, Mr. Gibson was setting four skids, Mr. Williams saw him set
two next to the motor car and left with the other t1rn. He assumed he
set the other two, but could not see him due to the length of the
cars. Upon receiving clearance from the dispatcher, he moved fron
the 2i left junction and proceeded on his trip. He passed the 18 Hill
with no difficulty, using both electric and air brakes. As he started
over the 18 Hill, he lost his trolley pole but put it back on the
trolley wire and the trip was under control, and he ~sed electric and
air brakes and sand to control the trip clown the 11-percent 100-·foot
grade past the 18 Hill (Tr. 277-288).
Mr. Williams lost his trolley pole again in the 2 North parallel.
section. The pole knocked his mine cap off his head. He then discovered that the pole harp was missing and he began using every available device to keep the motor under control, including sand and the
dynamic and air brake, but could not control the trip. Due to the
loss of the harp, he ;Lost his air pressure and no additional pressure
was building up. The only available air pressure was that which
remained· when the harp was lost and his pressure gauge indicated zero,
Mr, Gibson jumped from the locomotive and he (Williams) jumped after
locating a wide area in an entry (Tr. 288-293).
Mr, Williams testified that he had on previous occasions transported 27 or more car loads down the No. 18 Hill, and has hauled as
many as 29 or 30 car loads with engines smaller than the No, 20 locomotive, and he had no trouble controlling those trips, and the accident in question is the first one he has experienced in his 37 years

55

of m1n1ng. The No. 20 locomotive is inspected every Thursday on the
third shift, and he had authority to take it to the motor barn "if he
detected anything wrong while operating it (Tr. 293-295).
Mr. Williams testified that he took 27 trips on the day in question because he felt he could handle that many car loads. When he
discovered the loss of air pressure, he did everything possible to
slow down, but prior to the loss of air pressure, he was controlling
the trip satisfactorily by using sand, and his electric and air
brakes, and his trip was under control at all times prior to the losing of his harp and air pressure (Tr. 295-298).
On cross-examination, Mr. Williams testified ~hat he considered
himself to be a well-experienced motorman. He checked the brakes of
the No. 20 locomotive and visually observed th~t the brakes were
touching the wheels. He could not check the flanges because that
requires the loco1notive to be parked over a pit. It ir possible for
the brakes to malfunction sometime during a shift, even though a
~isual inspection indicates they are in working order.
He has had no
previous accidents involving the operation of locomotives prior to the
accident in question. He had traveled to the motor barn in a westerly
direction earlier in the evening) but could not recall whether he had
any mine cars. He went to the barn to obtain a slide and normally
would not take along a loaded trip of cars. He could not recall his
speed at that time, but had the trip under control by using his air
brakes (Tr. 299-307).
Mr. Williams believed that some 7 minutes transpired from the
time he left 21 Left to the point where he jumped from the locomotive,
and at least 5 minutes transpired from the point where he lost his
trolley harp to the point where he jumped. Prior to his losing the
harp, there was adequate ait pressure when the trolley wire was in
contact with the overhead wire (Tr. 308-311). He had 60 pounds of
air pressure when he lost the harp (Tr. 313).
In response to questions from the bench, Mr. Williams testified
that most of the grade starting at 2 North is downhill with some rise
and fall. If a car were dropped at one end of the horizontal travelway from 4 South in a westerly direction toward 2 North, it would
travel the entire ~istance to the other end by force of gravity.
When his trip derailed, he was told 18 mine cars left the tracks. He
never went back to view the scene and has not operated a locomotive
since the accident. While he was not disciplined by the respondent,
he was taken off the job as a motorman, but is still employed in
another capacity (Tr. 313-318).
On redirect, Mr. Williams indicated that 50 pounds of air pressure is required to operate the locomotive. The motorman who operated the No. 20 locomotive prior to his shift did not indicate that
he was experiencing any difficulties rir that he was having trotible
with the brake shoes (Tr. 318-320).

56

Steve Halsey, employed as an underground·maintenance supervisor,
was employed in that capacity at the time of the accident, and his
job entailed servicing and inspecting locomotives, including work
on locomotive brake systems. He knows how brake systems work and
has worked on the No. 20 locomotive (Tr. 332-333). He stated that
the emergency or auxiliary brake is a different braking system from
the air brake system, and the parking or mechanical brake is the
fourth. The dual braking system is the pneumatic and dynamic brakes
which are designed to stop the locomotive under normal conditions.
He has ridden the locomotive underground and the normal speed is
8 to 10 miles per hour while carrying loads. The load limit is
presently 15 cars, but at the time of the accident, it was 25. He
has ridden the No. 20 locomotive when it pulled as many as 33 car
loads and he experienced no trouble in controlling it. He identified
the locomot1ve inspection report (Exh. P-10) and indicated there were
additional "time sheets," but he could find no other reports covering
the period June 18 to the day of the accident. He stated th~t during
this period, the mine worked approximately 15 days due to a strike
and vacation period. During this time, the No. 20 locomotive was in
the motor barn for maintenance on several occasions. A new harp was
put on 2 days prior to the accident (Tr. 333-343).
Mr. Halsey described the procedure used to remove the locomotive
for testing from the mine to the shop area after th~ accident. No
power was put on the locomotive and it was either pushed, pulled, or
dragged to the shop. The locomotive was inspected by several people,
including MSHA inspectors, and upon instructions, he took the brake
shoes off and laid them beside each wheel truck. He looked at the
brake shoes and did not believe they were "that far out of adjustment," and he was convinced they would work. After applying the
power to the locomotive, the brakes did not hold. A second test was
mad~ and the brakes still would not hold.
After Inspectors Smith and
Sizemore left the shop, he went to the pit to check the wheels and
brake shoes again. After power was applied, he noticed a gap caused
by compressed mud between the wheels and brake shoes on all eight
wheels. The shoes would have contacted the wheels, had it not been
for the mud. The mud evidently came f~om the shop area while the
locomotive was being transported. The normal gap between shoe and
and wheel is one-half to five-eighths of an inch and the shoe will
move an inch or an inch and a half. Two of the brake shoes in question were in perfect condition, two had problems with the flanges~
one had a portion of the flange broken off and it was decided that
this was an old break which did not result from the accident. The
other shoes had no problems with the flanges and exhibited only
normal wear. One of the two shoes which concerned MSHA had a groove
cut into the tread area causing it to rock on the wheel and ride out
of alignment, and the other one had a portion of the flange missing.
Mr. Halsey conceded that these two brake shoes were misaligned (Tr.
343-359).

57

Mr. Halsey testified he inspected all of the brake shoes in
question, and in his opinion, the two misaligned shoes were making
contact with the wheels, as were the other four (Tr. 359-362).
On cross-examination, Mr. Halsey testified as to his education
and training courses concerning braking systems. He has mine foreman's papers and believed he is well-qualified to speak on locomotives
and locomotive braking systems. The auxiliary braking system will
activate if there is a break in the main line or hose, if the system
bleeds off over a period of time, or if the brake lever is pushed all
the way over. The locomotive would adequately stop a trip of 25 or
30 and he remembered this from riding it 3 or 4 years ago. At that
time, however, he did not check the brakes and could not say whether
that braking system was the same as the one involved in the accident.
The locomotive was taken out of the mine on the tracks and he was not
present when it was taken out and did not know what the conditions
were. He initiated the two tests in the shop because he was confident
the brakes would work, but was surprised when they did not. He did
not protest to the MSHA inspectors after the tests failed because
they were leaving the shop and did not do so later, although he ctid
te·ll them that "something was wrong." He estimated the l·-1/2-inch
shoe distance from the wheel through visual observations. In his
view, the brake shoes and flanges were not excessively worn. He
replaced all of the brake shoes (Tr. 365-376).
On redirect, Mr. Halsey testified the brakes were working on the
night of the accident. ·After the locomotive was brought out of the
mine, it was pushed and·dragged over the timber yard area which was
muddy (Tr. 382).
In response to bench qi1estions, Mr. Halsey stated that when he
discovered the mud on the wheels, he did not inform the inspectors
of that fact, and after cleaning out the mud, he made no attempt to
test the locomotive again (Tr. 383).
Tom Akers, employed as an electrical engineer by the respondent, testified that after the accident, he was assigned the task of
attempting to determine the speeds at which locomotives travel in the
mine under particular conditions and that MSHA recommended that this
be done. A 15-load limit was decided on as a temporary limit until
his study could be made. His study determined that a speed of 8 to
9 miles an hour down the No. 18 Hill was considered by the locomotive operators to be a normal rate, and 15 miles per hour was considered excessive. Mr. Akers described the procedures used to
conduct his tests, and they included tests to determine stopping
and braking distances, and loaded mine cars'were used after weighing
them on scales. His tests were conducted before Mr. Funsch made his
calculations, but the results of both were close.

58

On cross-examination, Mr. Akers testified.that he was not sure
whether the No. 20 locomotive was used in the tests and that the
braking systems were working adequately (Tr. 387-394).
Mr. Kaylor was recalled by the court and testified that the conclusion reached in his report of investigation that the locomotive in
question was traveling at an excessive speed was based on interviews
and statements made by several motormen listed in the report who indicated that normally, a locomotive, with four skids and a comparable
number of loaded cars, would level off at stop if it were cut loose
with the power off after it reached Hill 18 at the point where the
grade levels off and dips. The persons giving the statements assumed
that the locomotive was traveling at an excessive speed in order for
the motor to travel by itself after it lost its air brakes. During
his investigation at the accident scene, three skids were found, but
the other one could have been inside the rail under the wrecked cars
where it could not be seen. He also indicated that Mr. Williams
could have left the throttle in the wide-open position, while moving
it back and forth in his attempts to bring the locomotive under control, and that Mr. Williams' explanations as to the positions of the
controls possibly explain why they were found in those positions as
explained in his report (Tr. 394-400).
Findings and Conclusions
Respondent is charged with a violation of 30 CFR 75.1404, a
statutory standard found in section 314(e) of the Act, and which
reads as follows:
Each locomotive and haulage car used in an underground coal mine shall be equipped with automatic brakes,
where space permits. Where space does not permit automatic brakes, locomotives and haulage cars shall be
subject to speed reduction gear, or othet iimilar devices
approved by the Secretary, vhich are designed to stop the
locomotives and haulage cars with the proper margin of
safety.
30 CFR 75.1404-1 braking system, provides:
A locomotive equipped with a dual braking system
will be deemed to satisfy the requirements of 75.1404
for a train comprised of such locomotive and haulage
cars, provided the locomotive is operated within the
limits of its design capabilities and at speeds consistent with the condition of the haulage road. A trailing
locomotive or equivalent devices" should be used on trains
that are operated on ascending grades.

59

The condition cited as a violation by the inspector, and which
he believed constituted a violation of section 75.1404, reads as
follows:
The pneumatic braking system on the No. 20 locomotive
being used for coal haulage purpose was not sufficient to
control a trip of 28 loaded mine cars which were involved
in a run-a-way trip. The brake shoes were not properly
aligned with the trucks and could not apply uniform
frictional pressure on the braking surface. The linkage
for the manual brake was disconnected completed 75.1404.
Petitioner's Arguments
Petitioner takes the position that the provisions of 75.1404-1
pertaining to "design capabilities and speeds consistent with the condition of the haulage road" are not at issue here, and that the key
issue in this case, in terms of construction of the standard, is the
meaning of the phrase which appears in the first part of 75.1404-1.
In support of this proposition, petitioner asserts that the requirement that "a locomotive equipped with a dual braking system will be
deemed to satisfy the requirements of section 75.1404,'' necessarily
requires that the dual braking system be working, operative, and in
good order and repair, and suggests that respondent's position that
the dual braking system need only be in existence on the locomative
and that its ability to function as a braking system is irrelevant
and should be rejected. Citing what it believes to be the applicable
case law in support of the proposition that remedial legislation such
as the Act in question here should be construed liberally, petitioner
argues that a construction of section 75.1404 to the effect that a
locomotive equipped with a dual braking system need not work, operate, or be capable of stopping the locomotive, runs contrary to the
remedial nature of the statute and the general rules of statutory and
regulatory construction.
Petitioner cites the case of Sewell Coal Company, HOPE 78-529-P,
decided by Judge Merlin on November 15, 1978, and states that Judge
Merlin found a violation of section 75,1404 based upon that portion
of the standard relating to design capabilities an~ haulage road
conditions, and that the braking system, per se, was not the focus of
his decision. However, petitioner maintains that one can infer that
an operative, working brake system w~s considered by Judge Merlin to
be a necessary requirement since he found 11 that the air brake system
did work. 11 Further, since Judge Merlin found that the language of
section 75.1404-1, dealing with design capabilities and haulage road
is a separate requirement of the regulation, petitioner maintains
that it need not show that a locomotive's operation was outside of
its design capabilities or that the condition of the haulage road was
inconsistent with speeds of the locomotive because those are not the
only grounds for demonstrating a violation of section 75.1404.

60

Petitioner maintains that the lack of a dual braking system as well
as the lack of a braking system which is working, operative, and in
good repair constitute other grounds for a violation of this regulation. With respect to the use of the term"equipped," petitioner
asserts that the term should be construed to mean not only outfitted,
but also maintained in a working, effective and operative condition,
and cited a decision by Judge Michels in Pittsburgh Coal Comoany,
PITT 76-123-P, decided October 7, 1976, concerning the standard for
automatic couplers.
Turning to the facts and evidence adduced in this proceeding,
petitioner argues that visual examination of the locomotive brake
shoes underground at the point of the derailment indicated that the
brake shoes were out of alignment with the wheels (or trucks) :)f the
locomotive and that the flanges were worn. In the opinion of Inspector Kaylor, the derailment did not cause the misalignment of the
brake shoes, and out of the eight shoes, six were not in good shape
and had worn flanges. No evidence of brake skidding was found at the
scene of the accident, and when the locomotive was removed to the
surface and tested on two separate occasions, the locomotive brakes
failed to work when the motor was put in motion. Coi1ceding that the
loss of electricity upon which the dual braking system depends, was
a factor in the accident, petitioner nonetheless maintains that this
fact does not support an inference that the pneumatic braking system
would not have failed at some point in time, irrespective of electrical
power, and that at some point in time the extent of wear or misalignment will result in brake system failure. This problem has been
recognized by section 75,512 requiring a weekly recorded examination
of electrical equipment, including a locomotive, and petitioner
asserts that no evidence was offered to dispute the fact that no
examination report was made between June 18, 1977, and the fatality
date of September 8, 1977. In summary, petitioner takes the position
that the locomotive did not have a braking system that would do the
job at the time the fatality occurred.
Respondent's Arguments
Respondent contends that the condition cited in the order, namely
misaligned brakes shoes, is not a violation of section 75.1404, since
that section is confined to violations relating to a failure to equip
a locomotive with a dual braking system, Respondent maintains that
section 75.1404, and its subpart, 75.1404-1, is a design-oriented
safety standard rather than a maintenance requirement standard.
Citing the plain meaning of the statutory language and the legislative history of the standard in question, respondent argues that
they require that the locomotive must have automatic brakes or,
alternatively, must have·a dual brakir..g system designed to stop the
locomotive with the proper margin of safety; they do not mandate
maintenance thereof.

61

In support of its arguments, respondent points to the fact that
petitioner's own witnesses admitted that the locomotive had a dual
braking system and that respondent's expert witness Funsch testified
that such dual braking system was more than sufficient to stop the
locomotive, with 27 loads being pulled, on 18 Left Hill under the
conditions existing on September 8, 1977, and at a speed far in
excess of that which Motorman Williams testified was his speed prior
to losing the harp assembly. Witness Funsch testified that the locomotive and its braking system were so capably designed and operated
that, had the pneumatic braking system not accidentally been depleted
of all of its air supply, the locomotive could have been stopped in
approximately one-eighth of the distance between the site where the
harp assembly was lost and the derail location at 2 South.
With regard to the Sewell Coal decision, respondent asserts that
its position is consistent with Judge Merlin's holding in that case
even if it requires that a locomotive must be operated within the
limits of its design capabilities and operated at speeds consistent
with the condition of the haulage road. In Sewell, respondent points
out that the undisputed facts revealed that a decedent/motorman was
operating a tandem locomotive pushing a loaded rock duster weighing
5 tons up a steep gradey and ~ten the loeomotive failed to make the
grade, it slid back down the hill at which time the decedent was
thrown out of the locomotive and killed. It was admitted that automatic brakes were not present, so Judge Merlin turned to the alternative section, 75.1404-1, requiring that the locomotive have a dual
braking system and he interpreted such alternative to also require
that the locomotive be operated within the limits of its design
capabilities and at speeds consistent with the condition of the
haulage road. Judge Merlin ruled that the locomotive _did n~ have
a dual braking system, that the locomotive could not handle the
5-ton load placed upon it (the locomotive was not being operat~d
within the limits of its design capabilities) and that the locomotive
did not have enough power to achieve sufficient speed to travel along
the grades it was sent on (the locomotive was not operated at speeds
consistent with the condition of the haulage road).
·
Turning to the facts presented in the instant case, respondent
argues that as in Sewell, automatic brakes were not present on the
No. 20 locomotive, and one must look to section 75.1404-1 to determine whether the locomotive satisfied the alternative of a dual braking system. As pointed out earlier, respondent maintains that the
locomotive did, in fact, have a dual braking system, that its expert
witness unequivocally testified that the locomotive was being operated
within the limits of its design capabilities 0n the day in question,
and that the only person with knowledge of the speed being traveled
down 18 Hill, motorman Tom Williams, testified that his trip was
"under control," traveling down 18 Hill, by utilizing sand, dynamic
and pneumatic braking, until such time as the trolley pole bounced
along the roof, accidentally losing the harp assembly and, simultaneously, electric power which would have activated the compressor

62

which supplied air to the pneumatic and dynamic braking system.
Although Mr. Williams continued to use air to pneumatically and
dynamically brake and to release sand onto the tracks, when the
air cylinders were completely depleted all "control" was lost and
the derail became inevitable. Therefore, according to the only
witness who knows, speed was not a factor in the accident. In
addition, Inspector Kaylor testified that his investigation
revealed that the trip was under control until ti-le harp assembly
was pulled off the trolley pole.
Respondent submits that it has satisfactorily rebutted petitioner's assertion that the dual braking systems were not maintained
operable, and that petitioner presented no evidence as to whether the
locomotive in question was operated within the limits of its design
capabilities. Regarding the disconnection of the linkage for the
manqal brake as a condition supporting the alleged violation of
75.1404, respondent asserts that this fact has no relevance to the
alleged violation since it is established that a dual braking system
existed ~n the locomotive and the manual brake is not part of that
system, Respondent views ·the inspectors' testimony regarding their
inspection of the misaligned shoes as suspect because the inspection
was a visual inspection by inspectors who were not trained in the
operation of braking systems and who themselves conceded that the
visual examination was not conducted with the brake shoes applied to
the wheel surface to determine if the brake shoes were indeed failing
to make contact,
Regarding the surface tests relied on by the petitioner in
support of its argument that the pneumatic brakes were incapable of
performing adequately, respondent argues that this resulted from th~
fact that compressed mud had accumulated on the brake shoe s1:rfaces
as a result of the locomotive being dragged to the surface, and the
mud prevented the shoes from making contact with the wheels, Further,
aside from the surface tests, respondent cites the testimony of the
locomotive operator that on the day of the accident he stopped the
locomotive with the same 27 loads using only sand and the pneurnntic
brake, and that he experienced no difficulties during his shift in
braking the locomotive or controlling the trip until after he lost
power and his air pressure was depleted. Respondent also cites the
testimony of its expert that were it not for the loss of power the
locomotive would have been stopped, and that the locomotive end its
braking system were cabably designed and operated within their design
limits.
In sununary, petitioner's position is that the respondent failed
to properly maintain the pneumatic brakinB system of the No. 20 locomotive because it allowed certain brake shoes to become misaligned
w.ith the locom_otive wheels (trucks), thereby rendering the dual
braking syste~ inoperative. Respondent's position. is that petitioner
failed to establish by a preponderance of the evidence that the

63

misaligned brake shoes had an effect on the braking capacity of the
locomotive in question, and assuming that it did, no violation on
section 75.1404 ensued because that standard is not directed to the
maintenance of a braking system but only to its proper design. With
respect to petitioner's further argument that the pneumatic braking
system was inoperative because the emergency truck brake was deficient, respondent asserts that such argument is irrelevant.because
the e~ergency truck brake is not part of the dual braking system
required by section 75.1404.
Petitioner seems to take the position that even if the locomotive had not lost its power, the brakes would not have worked anyway
since they were misaligned and ha.d worn flanges. However, based on
the testimony and evidence produced by the petitioner, I cannot make
that conclusion. I believe it is clear from the weight of the evidence adduced in this proceeding that the failure of the locomotive
brakes to function was due to the unexpected loss of power caused by
the loss of the trolley harp assembly, which in fact resulted in the
unanticipated loss of braking air pressure due to the loss of electrical power. I am also impressed with the fact that the locomotive
operator did all that was humanly possibly to bring the locomotive
under control, that he stayed with the locomotive for a distance of
some 1,000 feet after the brakeman jumped and was killed in his
futile attempts to slow it dmvn, and that he finally jumped from the
locomotive after failing to stop or slow it down and after finding
a safe place in a wide entry in which to jump.
Although the investigative report prepared by Inspector Kaylor
mentions the fact that the trip limit policy was disregarded, the
report makes no reference as to whether the locomotive in question
was being operated within the limits of its design capabilities. As
a matter of fact, MSHA produced absolutely no evidence concerning the
design or specifications for the braking systems on the locomotive
in question, and the inspectors conducted no tests to determine
whether the worn brake shoes in question were making contact with
the wheel surfaces, or whether the worn brake shoe flanges were, in
fact, being used to brake the wheels. Although the brake shoes were
removed from the locomotive wheels after it was removed from the
mine, the shoes were not further tested and were apparently discarded. Further, once the locomotive was placed back on the tracks
underground to facilitate its removal from the mine, no physical
tests were conducted at the scene to d.etermine whether the braking
systems were operative. The inspectors simply visually observed
the brake shoes, noted that six out of the eight were worn and
appeared to be misaligned, and came to the conclusion that the
brakes ~ere inadequate. As a matter of fact, Inspe~tor Smith
stated that at the time he issued his section 104(a) order, he did
not consider the number of trips being pulled or the grade of
travel, and he simply considered the condition of the brakes as
he observed them in coming to the conclusion that they would not

64

stop the locomotive. However, in support of this conclusion, he
relied ori the fact that brake shoes which are not applied uniformly
to a locomotive wheel surface are inadequate. Yet, no o·ne bothered
to test the brake shoes to determine how much braking surface was
present and no one visually observed the shoes coming in conta~t
with the wheels during any of the surface tests. Although Inspector
Smith asserted that he relied on the two tests suggested by the
respondent in the surface shop to support his conclusion that the
brakes were inadequate, those tests are somewhat suspect since they
were conducted after the locomotive had been r.emoved from the mine
and subjected to possible dragging through mud, thereby subjecting
the locomotive wheels and brake shoes to conditions which were not
present at the time of the accident. Significantly, those surface
after-the-fact tests are not even mentioned in the accident investigation report compiled by Mr. Kaylor.
It is clear from the evidence presented that once the harp
assembly was disconnected from the trolley wire, the brake systems
would not function because of the loss of air pressure and electric
power. MSHA's accident report concluded that the primary factor
causing the accident was the disengagement of the locomotive trolley
pole from the trolley wire and the subsequent loss of the trolley
harp assembly which led to the premature loss of the pneumatic and
dynamic braking systems. Further, MSHA inspector Kaylor conceded that
·if the locomotive harp assembly had not been lost, it is very possible
that the accident would not have occurred. As for the other fectors
"possibly contributing to the accident" as stated in Mr. Kaylor's
accident report, I believe it is clear they are not so critical. The
lack of an operative mechanical brake is irrelevant since it has been
established that the locomotive· had a dual braking sytem installed
and the mechanical brake is simply an emergency parking br&ke that is
not normally used to stop the locomotive under operating conditions.
Mr. Kaylor's assertion of excessive speed is totally unsupported by
any credible evidence, and the fact that the 25-car limit was exceeded
is irrelevant since respondent's evidence supports a finding that the
locomotive was capable of handling loads in excess of that limit and
petitiorier has not proved otherwise.
In the final analysis of the evidence presented by the petitioner
in support of the alleged violation, it seems clear that the thrust of
its case is bottomed on the surface "tests" conducted in the shop
once the locomotive was removed from the mine several days after the
accident. In my opinion, those so-called tests are far from conclusive. .In the first place, it is clear to me that the locomotive was
not in the same condition that it was underground at the time of the
accident. It had been placed back on the tracks underground, pulled
fr.om the mine, and then pushed or.dra&ged for some distance over the
surface and into the mine shop. Thus, it had been subjected to some
abuse, and from the evidence presented by the respondent, it had been
dragged through mud and the brake shoe surfaces had been covered with

6.'l

mud at the time the locomotive had been tested. Respondent's expert
testif~ed that such mud and foreign matter on the shoes would cause
the brakes not to hold when power was applied and petitioner has not
rebutted this fact. Further, the locomotive operator testified that
when he tested the brakes underground while the locomotive was in
motion, he experienced no difficulties in stopping the locomotive,·
and, as a matter of .fact, his unrebuted testimony is that he experienced no difficulties in stopping the locomotive with the trips he
was hauling during the shift in which the accident occurred. His
difficulties began when he lost his power, thereby incapacitating
all of the locomotive brake systems.
The condition cited by the inspector on the face of the citation
alleges that due to the misalignment, the brake shoes were unable to
apply uniform frictional pressure on the braking surfaces. In my
view, the inspector simply cannot support that statement. He indicated he had no formal training in the operation of brake shoes, and
testified that when he visually examined the locomotive underground,
he could not tell how much of the brake shoe surfaces were in contact
with the wheels when the brakes were applied, and no tests were ever
made to determine whether or not the brake shoe surfaces could, in
fact,. contact the wheel surfaces when the brakes were applied. It
would seem to me that since two of the six brake shoes were in good
condition, and the flanges were only partly worn, the question pf
braking efficiency of the brake shoes would n~cessarily depend on
actual physical testing rather than speculation based on visual
observations.
It seems to me that in a case of this kind, MSHA should have
taken the initiative at the outset and subjected the locomotive to
underground testing while it was on the tracks, at a time and place
closer to the event, and under actual working conditions. Here, the
inspectors merely made a visual observation of the brake shoes, which
di.cl not include any observations as to whether the shoes were, in fact,
contacting the braking surface of the wheels, and from those cursory
observations they speculated that the brakes would not hold. Neither
MSHA nor the respondent retained custody of the brake shoes, no photographs were made, and even though the brake shoes were at one time
apparently removed from the locomotive once it was taken to the surface shop, no one subjected the six shoes to further testing to determine the effect of the misalignment or worn flanges on the actual braking capabilities of those shoes. In view of the fact that two of the
shoes were found to be in good condition, and in light of the testimony presented by both parties concerning the physical and mechanical
interrelationships between the braking shoes, braking surfaces, and
the wheel surfaces with respect to braking capacities and effectiveness, it would seem that such further tests are critical.
With regard to Judge Merlin's decision in the Sewell case, it
seems clear to me that the factual setting which prevailed in that

66

case can be distinguished from the facts presented in the instant
proceeding. Judge Merlin's finding of a violat1on in the Sewell case
turned on the manner in which the tandem locomotives were operated at
the time of the fatality. It is clear from his bench decision that·
he was impressed with the fact that the tracks were in terrible condition~ the sanders were inoperative, the grades were too steep for
the locomotive, the adverse experiences with motormen on prior occasions indicating that the tandem locomotive in question could not
handle the loads placed on it, and the fact that the mine operator
was aware of these prior difficulties. Here, there.is no evidence
that the track conditions were other than in good condition, the
grades over which the locomotive traveled were not shown to be such
as which prevented the locomotive and trips from operating in other
than normal condition, the sanders were operating, the normal procedures for the use of additional braking ''skids" were followed, and
there is no indication that the locomotive operator experienced any
difficulties in negotiating the grades traveled on the very day of
the accident with the trips in question or that he expn·ienced any
difficulty in braking and controlling the locomotive with the trips
which it was hauling.
After full and careful review of the able arguments presented
by both parties in support of their respective positions in this
matter, and on the basis of the preponderance of the credible evidence adduced, I conclude and find that the respondent has the better
part of the argument and its proposed findings and conclusions both
as to the interpretation and application of the cited safety standard
in issue) including the alleged violation, are accepted by me as
correct and petitioner's proposed findings and conclusions to the
contrary are rejected. Accordingly, I conclude and find that petitioner has not established by a preponderance of the evidence that
the six brake shoes which were misaligned in fact adversely affected
the braking capacity of the No. 2 locomotive in question on the day
of the accident. I further find and conclude that petitioner has
failed to establish by eny credible evidence that the locomotive
in question was not being operated within the limiis of its design
capabi 1i ties.

ORDER
In view of my findings and conclusions made with respect to
Citation No. 7-0102, September 9, 1977, citing a violation of 30 CFR
75.1404, the petition for assessment of civil penalty, insofar as it

67

seeks a civil penalty assessment for that alleged violation is
DISMISSED.

Distribution:.
William B. Moran,·Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Lee F. Feinberg, Esq., William T. Brotherton, III, Esq., Spilman,
Thomas, Battle & Klostermeyer, 1101 Kanawha Banking & Trust
Bldg., Charleston, WV 25301 (Certified Mail)
Standard Distribution

68

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

APR 3
RONNIE R. ROSS,

1979
Application for Review of
Acts of Discrimination

Applicant

v.
Docket No. VINC 78-38
MONTEREY COAL COMPANY,
McNALLY-PITTSBURG CORPORATION,
LOOKING G.LASS CONSTRUCTION CO. ,
Respondents
and
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Intervenor
DECISION
Appearances:

Mary Lou Jordan, Esq., for the Applicant;
Timothy M. Biddle, Esq., for Monterey Coal Company;
William H. Howe, Esq., and Donald L. Rosenthal,
Esq., for McNally-Pittsburg;
James E. Heimann, for Looking Glass Construction
Company;
Thomas P. Piliero, Esq., for the United States
Department of Labor, Mine Safety and Health
Administration.

Before:

Administrative Law Judge Michels

This case involves an application for review of alleged acts of
discrimination brought by the Applicant against the Respondents,
Monter~y Coal Company (Monterey), McNally-Pittsburg Corporation
(McNally), and Looking Glass Construction Company (Looking Glass),
pursuant to section llO(b) of the Federal Coal Mine Health and
Safety Act of 1969 (the Act).:!./

1/ This Act has been superseded by the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 ~.!.!S·

69

Pursuant to an order of this court, MSHA conducted an investigation of the alleged acts and on May 5, 1978, filed its report. At
the same time, MSHA filed a motion to intervene in this proceeding
which was granted.
Mr. Boss alleges that two separate acts of discrimination
occurred, one on November 8, 1977, and the other on November 30, 1977,
in connection with his making safety complaints and conducting safety
inspections. The November 8th incident concerns an allegation that
Mr. James Heimann of Looking Glass Construction Company threatened
Mr. Ross when Mr. Heimann assertedly told him, in connection with an
inspection of his machines, that if he got shut down he would hang
Mr. Ross from a water tower. The other ·incident involves a letter
given by McNally-Pittsburg Construction Company, Mr. Ross' employer,
to Mr. Ross on November 30, 1977, advising him that if he did not
confine his safety activity to the McNally operations he would be
suspended and subjected to discharge.
Applicant Ross requests the following relief, including, but not
limited to, a clear declaration that the alleged 11 abuse, harrassment,
intimidation and threats perpetrated and/or condoned by Respondents 11
constitute discrimination prescribed by section llO(b) of the Act;
an order that the Commission's decision be posted at the Respondents'
worksites; a cease and desist order prohibiting Respondents from
engaging in further discriminatory conduct; an order that any unfavorable reports in Applicant's personnel files that exist as a result of
his safety activities be removed; and payment of all costs and
expenses, including attorneys' fees, incurred by Applicant in connection with the institution and prosecution of the instant case.
A hearing was held in St. Louis, Missouri, on November 7, 1978,
at \hich all parties were present. All the parties, except Looking
Glass Construction Company, were represented by counsel. Looking
Glass was represented by Mr. James Heimann, the company's president.
The parties were given the opportunity to file posthearing briefs andproposed findings of fact and conclusions; such briefs were filed.
by Applicant Ross and Responde~ts Monterey and McNally-Pittsburg.
General factual background

..

Monterey in 1974 began development of an underground coal mine
near Albers, Illinois, called Monterey No. 2 (Monterey Exh. 2). At
the times relevant to Mr. Ross' application, the underground portion
of the mine development was completed and Monterey was mining coal
(Tr. 284)·. Construction of surface facilities and related activities
were underway by several contractors including McNally and Looking
Glass (Tr. 264-265, 308, 315).
In order to work at the mine site, the employees of each contractor were required to be members of Local 2015 of the United Mine

70

Workers of America (UMWA) (Tr. 13, 76). The relationship between
the construction employers and their employees was governed by the
National Coal Mine Construction Agreement, effective December 23,
1974 (the 1974 Agreement), between the Association of Bituminous
Contractors· (an industry wide bargaining unit) and the UMWA (Mc Nally
Exh. 1, Tr. 20). This agreement reads in pertinent part: "The Health
and Safety Committee niay inspect any portion of the project site at
which employees of the Employer are employed. * * *11 (Art. IV,
section (c)2 of the 1974 Agreement).
Mr. Ross was employed by McNally at the Monterey project from
May 1975 through the project's termination in August 1978 (Tr. 151).
He was hired as a carpenter and he bid for and was awarded the
position of l~ad millwright shortly prior to his layoff (Tr. 151).
Under the 1974 Agreement, the employees of each contractor at
the project were entitled to form a health and safety committee.
Each committee was authorized to inspect any portion of the project
site· where the employees of that contractor worked (the 1974
Agreement, Article IV, section (c) (Tr. 73-74, 85)). In October and
November of 1977, a number of the contractors at the project had a
connnittee made up of an employee or employees. Some of the small
contractors, however, appear not to have had committees (Tr. 89-91).
Such a committee was formed at the Monterey project by McNally
employees. While in the employment of McNally, Mr. Ross held the
position of project health and safety committeeman (Tr. 151). After
becoming committeeman, Mr. Ross took courses at the local junior
college and state schools to increase his knowledge of state and
Federal safety and health requirements. He was also selected by the
local to attend the various training programs offered by MSHA and the
State Department of Mines. Because of his background and training and
his activities as a committeeman, Mr. Ross tended to be the person
to whom employees came when they had a safety problem (Tr. 32-33, 55,
92, 151-156, 169-170L Mr. Ross was also selected by McNally to give
employees safety training (Tr. 186).
The practice of the union local was to appoint at the Monterey
No. 2 Mine a chairman of all project health and safety committees.
Prior to Mr. Ross' appointment, the position was held by the president of the local (Tr. 86-87, 109-110). Mr. Ross, although not
president, was appointed by the executive board of the local union
sometime in the spring of 1977 as chairman of the safety committee
(Tr. 87, 120). Ibis appointment was hand carried to the superintendent of McNally and a carbon copy sent to Monterey (Tr. 120-122,
Applicant's Exh. 2). '!he position of chairman, while sanctioned by
the local union by-laws, is not provided for in the 1974 Agreement
(Tr. 86, Applicant's Exh. 2).
Under the 1974 Agreement, safety committees made regular safety
inspection tours and at the McNally project the committee did this

71

monthly (Tr. 181). While some of the witnesses suggested that
McNally connnitteemen covered virtually the entire project, other
evidence indicates that their tours were basically restricted to the
McNally site (Tr. 41, 48, 50-52). Mr. Ross testified that he was
authorized to inspect the whole mine site where McNally employees
were working, but he claimed generally that he also inspected outside
that area (Tr. 201-202) •.
Mc Nally committeemen, including Mr-. Ross, did not inspect underground, the administration building, the shafts and other areas of the
mine project (Tr. 41, 50). However, they did observe and report on
alleged safety conditions at non-McNally sites. Examples were citations against Zeni, McKinney, Williams for oxygen and acetylene bottle
violations and Christian County Contractors for fire extinguisher and
backup alarm violations (Tr. 49, 52). 'Ihese conditions appear to have
been observed in connection with a McNally site inspection, although
not necessarily on the McNally site. As part of their duties, committeemen accompanied Federal inspectors on their inspection of the
job site and usually stayed with them during the entire inspection
tour (Tr. 30, 154).

Mr. Ross and his committee made an inspection tour on November 4,
1977, and found certain conditions which they believed to be violations and prepared a request under 103(g) of the Act. 2/ It was
Mr. Ross' practice, at least toward the end of his employment, to
write up requests for inspection under 103(g). 'Ihe request written
as a result -0f the inspection tour on November 4, 1977, was given to
Inspectors Tisdale and Plaub on November 8. It lists,among others,
alleged yiolations by Looking Glass Construction Company (Tr. 165).
In conducting their inspection on November 8, the inspectors
were accompanied by Mr. Ross, Mr. Terry Cannon, a McNally employee
and also a member of the McNally safety committee, as well as the
management representatives from McNally and Monterey (Tr. 149-150,
164, 207). It was at the time of the inspection on November 8, that
Mr. Heimann made his angry outburst about hanging Mr. Ross from the
water tower, one of the charges in this proceeding.

!7 Section 103(g) reads as follows:

"Whenever a representative of the miners has reasonable grounds
to believe that a violation of a mandatory health or safety standard
exists, or an imminent danger exists, such representative shall have
a right to obtain an innnediate inspection by giving notice to the
Secretary or his authorized representative of such violation or
danger * * *".

72

The alleged threat of November 8, 1977, which is charged against
Looking Glass and Monterey
The first charge for consideration in this proceeding is that

Mr. James Heimann, owner and president of Looking Glass, threatened
Mr. Ronnie ·R. Ross, the Applicant, and that this threat was a discriminatory action in violation of section llO(b) of the Act. On
November 8, 1977, the Applicant, while on an.inspection tour in the
company of Federal inspectors and others, was allegedly verbally
abused and threatened by Mr. Heimann when the latter told him that if
he (Mr. Heimann) got shut down, he would hang Mr. Ross from the water
tower. 1he charge in this connection is against Looking Glass, a
contracting company owned by Mr. Heimann, and Monterey, the owner of
Monterey No. 2 Mine. Monterey is charged on the basis of the principle of "vicarious liability11 as well as on the basis ·of asserted
control at the mine site.

A.

Discussion of the specific facts relevant·to·this charge

On November 8, 1977,.MSHA Inspectors Tisdale and Plaub conducted
an inspection of Monterey No. 2 Mine. Safety committeemen of Local
No. 2015 regularly accompanied MSHA inspectors on their inspections
of the mine, and on this occasion, Mr. ·Ross, as well as Mr. Terry
Cannon, another connnitteeman, was on the tour. At the peginning or
during the inspe~tion tour, Mr~ Ross presented the inspectors with a
103(g) request. The request cited, among others, a number of alleged
violations or safety conditions involving the equipment of Looking
Glass (Tr. 142, 162, 165, Applicant's Exh. No. 3).

The inspection party included not only the inspectors and committeemen Ross and Cannon, but Leonard Lewis, a McNally supervisor,
and John Lanzerotte, a Monterey safety official (Tr. 18, 149-150,
207, 235). It toured several parts of the mine before arriving at
the Looking Glass area.
When the inspecting group came to this area, Mr .." Heimann.
was not at the site. He was at home eating lunch and he returned to
the site after receiving a telephone call from one of his employees
who notified him of the inspection (Tr. 268, 272). Mr. Heimann thus
arrived at the site aware that several perso11s were inspecting his
equipment. His testimony indicates that he did not become angry
because of the telephone call and that prior to his arrival ·at the
work site he did not foresee any problem (Tr. 272-273). A few days
before November 8, Mr. Heimann had discussed safety aspects of all
his equipment at the site with the· same inspectors and, as the
result of these conversations, he believed his equipment complied
with the applicable safety standards (Tr. 256-257, 267).
When Mr. Heimann arrived at the site, he saw that a particular
tractor was being inspected for possible violations (Tr. 273). At

73

this point, he became angry. He first made a statement to the effect
that he could easily quit his Monterey contracting work and go back to
farming. Next, he used language to the effect that if he were closed
down, he would hang the person responsible from a nearby water tower
(Tr. 143, 166, 274). Witnesses testified that the statement was made
in such a way that it was clearly directed toward Mr. Ross. Also,
Mr. Heimann testified that although he did not use Mr. Ross' name, he
felt that the latter knew who he mean·t (Tr. 274). Mr. Heimann had
not had any significant contact with Mr. Ross previously and knew
about him by reputation. The indications are that Mr. Heimann was
angry because of a history of difficult'ies in carrying out his work
at the site--difficulties which, rightly or wrongly, he attributed to
the union. He testified that destructive and increasingly violent
actions had been taken against his property on the site and near his
home (Tr. 265). The presence of Mr. Ross on the inspection tour, was
apparently an embodiment cf his troubles. His own explanation for
his outburst is contained in the following ~xchange:
\

Q. Do you recall any particular statement or anything
at all that caused you to get angry enough to say something
to the effect about hanging somebody from the water tower?
A. It was the fact that the very tractor that had been
·declared unsafe had been declared safe just several days
before by Mr. Plaub and Mr. Tisdale, and I was almost convinced that Mr. Ross had pressured them into going back and
reexamining it.
(Tr. 273).
After making his angry statement, Mr. Heimann walked away from
the site and returned home (Tr. 143, 274-275). He testified that a
little later he went back to the site to talk with Inspectors Plaub
and Tisdale, but they were no longer present. The record does not
contain evidence of any further interaction between Mr. Ross and
Mr. Heimann immediately following this confrontation. There is testimony about a later meeting between the two men at which time
Mr. Heimann asserts they agreed to get along better in the future
(Tr. 198). Nothing further came of the incident. There is no evidence that Mr. Heimann was in any way thereafter abusive to Mr •. Ross.
'!be angry outburst of Mr. Heimann on its face appears to be a
threat to do bodily harm to Mr. Ross. However, under the circumstances and in light of the actual statement made it seems relatively
obvious that this was not a threat which Mr. Heimann either intended
to carry out or had the capability of executing. There is no evidence of Mr. Heimann having a past history of physical violence at
the site or of mistreating employees. In fact, the record shows
generally to the contrary (Tr. 77-78, l04-105). Mr~ Heimann had
never before threatened anyone else with hanging them from the water

74

tower or with injury. He characteriz~d his threat as "more a figure
of speech" and explained clearly that he did not intend to hang
anyone (Tr. 278).
There is little indication that Mr. Ross felt actually threatened. He testified that the ·statement made him feel sick to his
stomach, but that could have been because of the stress caused by the.
confrontation. It strains credulity to suggest that anyone would
believe Mr. Heimann intended to carry out the act of hanging. It was
an outburst of pent-up anger; not an actual threat. There is no evidence that the incident had any impact on Mr. Ross' subsequent activities. As will be shown under the second charge, after this incident
Mr. Ross continued his inspection tours as he had done before.
Thus, I find that the statement made on November 8 by Mr. Heiman~
about hanging someone from the water tower was a statement made to
Mr. Ross. I further find that while this angry outburst was verbally
abusive, it was not an actual threat on Mr. Ross' life.
B.

Consideration of the law and the sufficiency of the evidence to
prove the charge

The Applicant contends, as mentioned above, that Mr. Heimann's
statement constitutes discriminatory action under section 110 of the
Act and that both Looking Glass, which is owned by Mr. Heimann, and
Monterey, the owner of the mine,. are liable.
The part of the section charged and that pertinent to this
action reads as follows:
No person shall discharge or in any other way discriminate against or cause to be discharged or discrimin.sted. against any miner or any authorized representative
of miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized representative of any alleged violation or danger

* * *·
The Applicant argues that (a) in notifying the inspectors about
the Looking Glass equipment, Mr. Ross brought .himself under the protection of section 110; and (b) that he is entitled to protection,
not only from his own employer, McNally, but·also from other employers
on the project site, including Looking Glass. He contends that "[t]o
hold otherwise would completely thwart the purpose of the Act, since
retaliation from contractors other than one's employer can, nevertheless, result in a chilling effect on the exercise of a miner's
right to notify the Secretary" (Applicant's Brief, p. 16).
Looking Glass filed no posthearing brief. Respondent Monterey,
however, addressed itself to the subject in its brief. It contends

75

the alleged threat did not amount to discrimination under the Act,
and,. among other things, argues that although section llO(b) prohibits "persons"--as opposed to employers--fi:om discriminating
against miners, it is r·easonable to assume that by the use of the
·term "discrimination" Congress intended some connection between the
person alleged to have committed an act of discrimination and the
miner's employer". According to Monterey, such connection couid be
one of conspiracy, encouragement, ratification, remuneration, or
promise, but it; would have to be something to connect the empioyer.
It avers that never has liability been put on someone such as
Mr. Heimann, who is neither the employer, nor an agent or fellow
employee, but one who bears no relation to the employer at all
(Monterey Brief, pp. 9-10).
·
The language of the Act and the few references in the legislative history to the provision appear to suggest that its coverage
is limited to an employment connection of some kind. The principal
specific reference is to a discharge and this presupposes an employment status. The relief provided in section llO(b), although not
limited, specifies only rehiring or reinstatement which again presupposes prior employment. The Senate Conference Report, in its
section-by-section analysis in a brief reference to section llO(b),
states that the subsection provides procedures for obtaining reinstatement and back pay for miners discharged by operators and other
remedies for miners discriminated against (Legislative History of the
Act, House Committee on Education and Labor, March 1970, p. 1122).
Again, the only specific remedies referred to are reinstatement and
·back pay which are employment connected. While other remedies are
mentioned, there is lacking any indication that the reference is to
actions having no connection with employment.
The U.S. Court of Appeals for the District of Columbia has
interpreted the section in two leading decisions: Munsey v. Morton,
507 F.2d 1202 (D.C. Cir. 1974), and Phfllips v. Interior Board of
Mine Operations Appeals, 500 F.2d 772 (D.C. Cir. 1974). Therein, the
court delineated the elements necessary for relief under section 110,
which will be discussed, infra, in more detail as they relate to this.
proceeding. It is apparent, however, that· these cases concern
actions taken by an employer against employees or former employees.
Even though the court indicates that a liberal construction of the
statute is warranted, there is no hint of an application of this ·
provision beyond the employment context.
It is worth noting that the new law, the Federal Mine Safety
and Health Act of 1977, expanded the rights of miners under this provision, but even so, there is no indication in the law or the legislative history that the reach of the provision was extended beyond
the employment context. Administrative Law.Judge Broderick in
interpreting the comparable provision in the new Act held that the
Secretary and other administrative officials are not proper parties,

76

ruling to the effect that the rights granted by section lOS(c) arise
from an employment relationship. Neil Humphreys, et al. v. R. C.
Samples, et al., MORG 78-370 (October 26, 1978). This is not the
definitive word on the meaning of section lOS(c) in the new Act, but
it illustrates a point of view favoring such a construction. If the
new Act is confined to employment relationships in discrimination
cases, there is considerably more reason to hold that the 1969 Act is
similarly ,limited. ]../
In light of the considerations mentioned above, I hold that the
phrase in the Act "No person shall
* * in any other way discriminate against or cause to be
* discriminated against
*" means
that protection is granted only in connection with employment. The
"person" so discriminating need not necessarily be the employer, but,
if not, he must be one who in some way, such as by conspj.racy, aiding
or abetting or otherwise, affects the employment status of the
reporting miner.
·

*

**

**

There was no direct employment connection with respect to either
party named in this charge. Mr. Ross was not employed, presently or
in the past, by either Looking Glass or Monterey. The remaining question is whether the alleged act of discrimination in any other way
affected his employment status or pay. No discriminatory action was
proposed to the employer, McNally, by either party nor was any
discriminatory action taken by McNally aft~r the incident.
So far as Looking Glass is concerned, the incident began and
ended with the angry outburst. Since Looking Glass did not employ
Mr. Ross, its action did not directly affect his employment or pay.
The record shows that McNally wrote a disciplinary letter on
November 30, 1977, to Mr. Ross, the second charge considered herein,
which action was at lea~t in part caused .by the November 8 incident.
However, Looking Glass did not request that this letter be written,
nor did it request any other action against Mr. Ross. As found below,
the letter was not a retaliatory action against Mr. Ross and was not
a discriminatory act by McNally. To an extent, Looking Glass was a
cause of the action taken by McNally in that it was involved in one
of the acts which McNally considered before writing the letter, but

1./

In a decision in Ronnie R. Ross v. Maurice S. Childers, et al.,
VINC 78-158 (October 28, 1977), Judge Luoma held the 1969 Act is
limited in that the Secretary and other enforcement officials are
not proper parties to be charged for acts of discrimination. In
that case, Mr. Ross had filed an application for review of acts of
discrimination charging: (1) MESA and the Secretary of Labor with
failing to properly administer the 1969 Act, and (2) Inspector Marcell
· Chamner with having "verbally abused, harassed, intimidated, and
threatened Applicant Ross." The appeal from Judge Luoma's decision
was withdrawn by Mr. Ross and the proceeding was terminated by the
Federal Mine Safety and Health Review Connnission on October 25, 1978.
77

since it did not cause a retaliatory or discriminatory act, there
is no liability under the section.
Monterey, like Looking Glass, was not the employer of Mr. Ross
and none of its actions directly affected the employment or pay of
Mr. Ross. Indirectly, Monterey was the cause of the disciplinary
letter from McNally to Mr. Ross dated November 30, 1977, referred to
above. While Monterey had requested that Mr. Ross be stopped from·
making inspection tours outside the McNally project area, there is no
evidence that it caused McNally 1 s specific actions against Mr. Ross.
(See discussion of this subject in next section of the· decision).
Since the letter was not retaliatory or discriminatory, Monterey,
·although it indirectly caused the action, is not liable under the
Act.
Accordingly, I find that the actions of Looking Glass and of
Monterey resulting from the incident of November 8 are not in violation of section llO(b) of the Act.
The allegation against McNally and Monterey involving the letter
The second charge concerns a letter which was delivered to the
Applicant by McNally on November 30, 1977, signed by McNally project
superintendent Robert W. Stearman. 1he Applicant contends that this
letter which threatened him with discharge was a discriminatory act
in violation of section llO(b) (l)(A) of ·the Act. 4/ Tne en'tire text
of the letter is as follows:
This is to advise you that your duties as Project
Union Health and Safety Committeeman are limited
exclusively to McNally Operations at the Monterey Coal
Mine 11 2.
In the event of your violating the above, you will
be suspended-Subjected to discharge.
McNally, the contractor for whom Mr. Ross worked, and Monterey
Coal Company, the owner of the mine, are named as Respondents in this
charge. As with the threat, Monterey is charged on the basis of .the
principle of ''vicarious liability" as well as on the basis of asserted
control at the mine site.
A.

Discussion of the specific facts relevant to this charge

A few weeks after the November 8 inspection, at which time
Mr. Heimann made his angry outburst about hanging Mr. Ross from
the water tower, Mr. Ross received the disciplinary letter from

4/

See relevant provisions of the Act quoted above.

78

Mr. Stearman which is here in issue.

In this letter, as quoted
above, he was told that unless he limited his duties as committeeman
to the McNally site, he would be suspended, subject to discharge. No
such letter was sent to Mr. Cannon, who was also a committeeman and
who had been at the scene at the time of the Heimann outburst.
It does not appear, however, that the letter was prepared solely
because of the November 8 incident. Mr. Charles Bradley, vice
president of construction for McNally, testified it had come to his
attention that Mr. Ross was inspecting areas other than where McNally
employees were working, and that he learned of this when he received
a call from Monterey. 1he information as to Mr. Ross' inspections in
other areas was first received the latter part of October 1977, and
it had to do with Monterey's underground mine. Other notices of his
activity continued to come in and ''the letter was written because the
inspection of other areas had continued after that" such as the Looking Glass area (Tr. 225). Prior to October 1977, Mr. Bradley had not
received any similar complaints either at Monterey No. 2 Mine or other
projects in which McNally was working.
Mr. Bradley testified that upon receiving the notice from
Monterey he told the company that he "would take care of it" and he
thereupon called Mr. Stearman. 1he latter was told to limit the
committee's activities to the McNally scope of work. Mr. Bradley
also instructed Mr. Stearman to write and deliver to Mr. Ross the
letter (Tr. 216, 224-225). Mr. Bradley testified that the letter
was written as a result of the Looking Glass incident and other
reports of Mr, Ross' activities outside the McNally site (Tr. 226).
He also had knowledge that Mr. Ross was filing 103(g) requests.
ML. Stearmen was given instructions to write the letter on November 8,
but it was not delivered until the 30th of November (Tr. 231). Information the same as that in the letter were also given orally to
Mr • Ross ( Tr • 184, 192) •

Mr. Ross, during the course of his employment with McNally, had
frequent occasions to report what he believed to be violations or
unsafe conditions. He claimed that McNally was slow to correct the
conditions reported and that he reached the point where upon finding
a safety problem he· would write up a 103(g) request for inspection
(Tr. 167, 182, 188-189, 187). Michael Hill, a McNally employee,
also testified that McNally was slow to correct reported safety
infractions (Tr. 40).
Mr. Ross upon reporting asserted safety violations was frequently
given the task of correcting the conditions (Tr. 155, 36-38, 95). He
believed he was required to do such clean up jobs more than other
safety committeemen. He was assigned at different times to clean up
the tipple and the wash house and at another time to repair handrails
(Tr. 155). He was also assigned to pick up scraps after citing an
area as being full of debris (Tr. 36). Mr. Ross upon insisting that

79

a portal man, that is, a man who works at the top of the portal, was
needed, was given the job of portal man. This was a class C or B
position and Mr. Ross at the time was a class A millwright. His pay,
however, was not reduced (Tr. 37, 38, 95, 185). Mr. Ross and his.
coworkers testified to their belief that he was harrassed by McNally
(Tr. 37, 60, ·95, 155).
There is evidence that it was a regular practice of McNally to
assign the person reporting unsafe conditions to correct those conditions if they were qualified to do so. Mr. Lewis, McNally's control
supervisor, testified that he would assign the first individual handy
if danger was imminent and that he had assigned Terry Cannon, a
safety connnitteeman, to clean up cited conditions. If Mr. Cannon
reported the violation, he was usually asked to correct it (Tr. 241).
Mr. Lewis followed a practice of assigning the_ individual best suited
to handle the situation (Tr~ 252-253).
After Mr. Ross was instructed orally and by letter to restrict
his safety inspections to the McNally site, he continued to inspect
both the McNally site and other areas as he had done before (Tr. 191).
He. was not discharged, reprimanded or penalized for failing to comply
with the instruction set forth in the letter of November 30.

B.

Discussion of the law and the sufficiency of the proof

·Insofar as the November 30 letter is concerned, the charge is
that the document which threatened the applicant with discharge was
a discriminatory action in violation of section llO(b)(l)(A) of the
Act. This provision, to again quote it for convenience, reads as
follows:
No person sh.all discharge or any other way discriminate against or cause to be discharged or discriminated
against any miner or any authorized representative of
miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized
representative of any alleged violation or danger***·
The Applicant must show in this instance three elements to sustain a charge of a violation of the Act: (a) The reporting of an
alleged violation or danger in the mine to the Secretary, (b) that
the reporting miner was discriminated against and ( c) that the
reporting was the precipitating cause of the discrimination, that is,
that the discrimination was in retaliation for the reported alleged
violations or danger. Munsey v. Morton, supra; Phillips v. Interior
Board of Mine Operations Appeals, $Upra.
The f1rst element is established without question. Mr. Ross had
on a number of occasions and 'in particular on the occasion of the
Looking Glass incident, reported asserted violations by requesting

80

103(g) inspections and this reporting was known to the McNally
management.
In regard to the second element of proof, i.e., an act of discrimination, the evidence shows that a disciplinary letter was given
to Mr. Ross and that it was not given to other committeemen in
approximately similar circumstances. No ietter was given to
Mr. Terry Cannon, who was with the group on the day of the Looking
Glass incident. I have ruled in 'a prior case that a disciplinary
letter may be a discrimination within the meaning of the phrase ''in
a1;1y other way discriminated'' in the Act. Local ·union 1110; ·UMWA;
et al., v. Consolidation Coal Company, Docket No. MORG 76X138
(May 26, 1977). In that case, I found that such a letter in an
employee's personnel file might affect further pay, ad,rancement or
even employment. In that respect, it is or may be a punitive act.
Mr. Ross in this instance was singled out to receive the letter
and was thus discriminated against within the meaning of the Act.
The third and final element of proof is whether this discrimination was motivated by or in retaliation for the reporting of an
alleged danger or violation. The letter, as the parties generally
agree, was directed to Mr. Ross' safety inspections outside of the
McNally area of operations. The letter does not limit inspections
otherwise. It is not directed at the fact that Mr. Ross, as a committeeman, was looking for and reporting conditions which he believed
.to be a danger or a violation. It was directed solely at his activity
of inspecting for safety violations off the McNally site, which was
perceived by McNally management to be unauthorized.
McNally had good reason to believe, and there is no evidence to
the contrary, that the 1974 Contract was the governing instrument in
its relationship with its employees. The contract provided that
Mr. Ross or other com.mitteemen might inspect at any portion of the
project site on which McNally employees were employed. This document
might fairly be interpreted as limiting a committeeman to inspections
on the McNally site and, at least in the usual circumstances, that
requirement does not appear to be unreasonable. Even without a
contractual provision, an employer 'Would be reluctant to have his
employees inspect and report on violations of other employers. The
employer would lose some control over activities of its employees and
its relationship with other employers could be adversely affected.
There is not the slightest question that Mr. Ross regularly made
off-site inspections. He readily concedes this in his testimony and
such activity was confirmed by other wi·tnesses. Mr. Ross, even
be-fore he was appointed the chairman of the committee, accompanied
Mr. Ba thens to ;'Mr. Heimann' s job site across the road 11 (Tr. 156).
The 103(g) request which was written up and handed to the inspectors
on November 8, included a listing of alleged deficiencies in the
Looking Glass Construction Company equipment which was not located on
the McNally site.·

lhe testimony of Mr. Bradley and other evidence demonstrates that
the letter of November 30, was written and given to Mr. Ross solely
because of the reports of Mr. Ross' safety inspections outside of the
McNally site and in particular his off-site inspection of the Looking
Glass equipment. There is no evidence to show that the letter is in
any way a pretext to hide an unlawful motive. The motive was to prevent Mr. Ross from inspecting off the McNally site, not to punish him
for reporting asserted dangers or violations.
The issue thus narrows to whether Mr. Ross was disciplined for
unauthorized activity.
In this sense the matter is not unlike that
dealt with by the undersigned in Local Union 1110, UMWA et al., v. the
Consolidation Coal Company, supra, in wh~ch I found~t"t:he-disci-~
plinary letters were not issued in retaliation for reporting alleged
dangers or violations; they were issued because the committeemen had
infringed upon an area reserved to management. I am satisfied that my
findings and conclusions should be the same in the circumstances of
this proceeding. Accordingly, I find that the letter presented on
November 30, 1977, to Mr. Ross was to prevent him from engaging in
activity reasonably perceived by management to be unauthorized and it
was not in retaliation for safety reporting to the Secretary. 2_/
The evidence shows that Mr. Ross, when he reported assertedly
unsafe conditions, was given the task of correcting these conditions.
As a result, he frequently found himself doing jobs like cleaning up
washroom facilities. On one occasion, he was assigned as a top man on
the portal after reporting a need therefore, although he was overquali_fied for the position. There is no charge here that these assignments were a violation of section 110. 1he record also shows that
such assignments were normal and that the miner who reported the violation, where he was capable of doing so, was usually told to correct
it. Other committeemen were assigned to correct unsafe conditions
which they reported. lhere is no showing the reporting by Mr. Ross
which led to his work details was connected with or that it influenced
the writing of the letter of November 30. 2./
5/ niis decision should not be construed as affirming a' policy of
limiting safety committee inspections to the employer's area. Since
in developing a mine contractors frequently work in close conjun~tion
with one another and affect employees of one another, there may be
instances in which inspections off the immediate site of the employer
are justified. That is not a specific question before me, however,
and possibly is a subject which should be considered in negotiations
between employees and their employe·rs.
6/ While not an issue before me, the policy of assigning the miner to
clean up or correct the conditions he has reported, particularly where
dirty work is involved, is one that is far from satisfactory. It
could well have a chilling effect on the reporting of unsafe and
unhealthy conditions. lhough apparently permitted under the labor
agreement, it seems to me·the practice should be· curtailed or ·eliminated where~er possible.
·

82

In summary, I find that the letter of November 30 to Mr. Ross was
discriminatory, but it was not in retaliation for the reporting by
Mr. Ross of alleged safety violations; rather it was motivated by the
desire to limit Mr. Ross' off-site activity. In this connection, I
note that the letter was subsequently removed from Mr. Ross' file
(Tr. 185). Further, it appears that other e ffocts of Mc Nally' s action
are mooted since the McNally contract at the Monterey site has been
completed and Mr. Ross is no longer in the employ of McNally.

Inasmuch as I have found above that the Act was not violated by
McNally, the contractor, in giving the letter of November 30, 1977,
to Mr. Ross, it follows that the owner, Monterey Coal Company, is
also not in violation of that section of the Act.
CONCLUSIONS
1. Monterey Coal Company, McNally-Pittsburg Corporation, and
Looking Glass Construction Company are subject to the Federal Coal
Mine Health and Safety Act of 1969.
2. 'lli.e Administrative Law Judge has jurisdiction over this
proceeding.
3. 'lli.e application for review of acts of discrimination and the
relief requested by Applicant should be denied for the reasoris stated
in the findings above.
ORDER
IT IS ORDERED that the application for review of acts of discrimination is DENIED and th~~I~S~
Frankl.in P. Michels
Administrative Law Judge
Distribution:
Mary Lu Jordan, Esq., United Mine Wot::kers of America,
900 15th Street, NW., Washington, DC 2ooos·ccertified Mail)
Timothy M. Biddle, Esq., Jones, Day, Reavis & Pogue, 1100
Connecticut Avenue, NW., Washington, DC 20036 (Certified Mail)
William H. Howe, Esq., and Donald L. Rosenthal, Esq., Loomis,
Owen, Fellman & Coleman, 2020 K. Street, NW., Washington,
DC 20006 (Certified Mail)
Mr. James E. Heimann, President,Looking Glass Construction Co.,
Germantown, IL 62245 (Certified Mail)
Thomas .P. Piliero, Esq., MSHA Trials Branch, Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203

83

FEDERAL MINE SAFETY AND HEALTH REVIE\V COfiUVHSSION
OFFICE OF ADMINl5Tr~Al'IVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

APR 3

1979
Application for Review

KERR COAL COMPANY,
Applicant

v.

Docket No. DENV 78-507
Order No. 389989; June 6, 1978

SECRETARY OF LABOR,
MINE SAFETY AND HEALTR
ADMINISTRATION (MSHA),
Respondent
Civil Penalty Proceeding

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

Docke.t No. DENV 79-285-P
A.C. No. 05-02660-03004

v.
Marr Preparation Plant
KERR COAL COMPANY,
· Res pond·E!n t
DECISION
Appearances:

Warren L. ·Tomlinson, Esq., and Deborah Friedman,
Esq~, Holland & Hart, Denver, Colorado, for
Kerr Coal Company;
Edward H. Fitch·, Esq., Office of the Solicitor,
Department of Labor, for MSHA.

Before:

Administrative Law Judge Michels
'

Docket No. DENV 78-507 in the above-capt;ioned proceedings
involves an application for review of Withdrawal Order No. 389989 and
the underlying Citation No. 389938 issued. at Applicant's Marr Preparation Plant for an alleged violation of s~ction 109(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 819(a). The pertinent
part of that section of the Act requires (:hat a [a] t each coal or other
mine there shall be maintained an office \·1ith a conspicu.ous sign
designating it as the office of such mine."
Citation No. 389988 was issued on June 5,-1978, by MSHA inspector Harvey Padgett, who alleged that there _was no sign designating the
office at Applicant's preparation plant. On June 6, 1978, Inspector

84

Padgett issued Order No. 389989 pursuant to section 104(b) of the
Act, alleging Applicant's failure to abate the cited condition. The
cited condition was abated on June 6, 1978, following issuance of the
withdrawal order.
.
Pursuant to section 105(d) of the Act, A~plicant filed its
application for review of the withdrawal order and underlying citation with the Federal Mine Safety and Health Review qommission.
A hearing was held on January 17, 1979, in Denver, Colorado, at
which both parties were represented by counsel. Applicant's counsel
filed a posthearing brief on February 21, 1979.
On January 30, 1979, after the hearing discussed above, but before
a decision had been issued, MSHA filed a petition for the assessment
of a civil penalty in Docket No. DENV 79-285-P based on the violation
alleged in Citation No. 389988, the. same citation involved in DENV
78-507. In answer thereto, Kerr Coal Company filed a motion requesting that the civil penalty·case be stayed until a decision was issued
in DENV 78-507.

Thereafter, on March 2'2, 1979, MSHA filed a motion to withdraw
the petition for assessment of a civil penalty in DENV 79-285-P. As
grounds for this motion, MSH/\. counsel asserted:
(a) the same violation was the subject of Applicatiort for Review Docket No. DENV 78-507;
(b) Citation No. 389988 was issued in error; (c) both Citation No.
389988 and Withdrawal Order No. 389989 had been vacated.
On March 26, 1979, Kerr Coal Company filed a motion to withdraw
its application for review in DENV 78-507 in which it advised that on
March 13, 1979, MSHA inspector Stephen Pryor issued Citation No.
389988-1, in which he vacated both Citation No. 389988 and Order No.
389989, stating "[a] review of citation No. 389988 dated 5 June 1978
determines the citation was issued in error, also .subsequent action
of a 104 B order No. 389989 is cancelled.'' A copy of Citation No.
389988-1 was attached to this motion.
Under. the circmnstances outlined above, I hereby find that good
cause has been shown for granting both mot ions. Accordingly,
In Docket No. DENV 78-507, it is ORDERED that Applicant's motion
to withdraw its application for review is hereb;• GRANTED.
That proceeding is hereby DISMISSED.

85

In Docket No. DENV 79-285-P, it is ORDERED that Petitioner's
motion to withdraw its petition for the assessment of a' civil penalty is GRANTED. That proceeding is hereby DISMISSED with prejudice.

~
;17.--·
/T)
/
--~&-t/v£1._.,,,t:_.L--V1 (/.// \);iu_lLi~··
C
Franklin P. Michels
Administrative Law Judge

Distribution:
Warren L. Tomlinson and Deborah Friedman, Esqs., Holland & Hart,
730-17th St., 500 Equitable Bldg., Denver, CO 80201 (Certified
Mail)
Edward H. Fitch IV, Esq., and Eddie Jenkins, Esq., MSHA Trials
Branch, Office of the Solicitor, U.S". Department of Labor,
4015 tvilson Blvd., Arlington, VA 22203

86

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

April 4, 1979
CLIMAX MOLYBDENUM COMPANY,
Applicant

Application for Review
Docket No. DE~\/ '?q-300-M
Citation No. 3il857
January 5, 1979

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

Climax Mill & Crushers
Safety Line·

ORDER GRANTING MOTION TO DISMISS
On January 31, 1979, applicant filed an application for review
of Citation No. 331857, issued January 5, 1979, pursuant to
Section 104(d)(l) of the Federal Mine Safety and Health Act of
1977. Respondent MSHA, on February 26, 1979, filed a motion to
dismiss on the ground that the citation has been abated and that
applicant is not entitled to review of an abated citation. In
support of its motion, respondent cites the case of United Mine
Workers of America v. Andrus, 581 F.2d 888 (D.C. Cir. 1978), and
the decisions of numerous Commission Judges dismissing review
petitions in circumstances identical to those in this case.
On March 7, 1979, applicant filed a response to MSHA's
motion to dismiss and characterized the citation as a "citation
and order" involving alleged imminent danger. Applicant asserted
that it has a right to a review of both the imminent danger portion
of the order and the abated citation. Subsequently, as a result of
an Order issued by me on March 19, 1979, requiring the parties to
clarify their own erroneous characterizations of the citation sought
to be reivewed, it was discovered that no "imminent danger" is
involved in these proceedings and that the issue presented is the
reviewability of an abated citation.
After due consideration of the arguments presented by the
parties, I conclude that respondent's position is correct, and I
believe it is clear that applicant is not entitled to review an
abated citation at this time, absent an assertion that the time
fixed to abate was unreasonable, and in support of this .I refer the
parties to previous rulings on. this issue by various Commission
Judges in the cases of Helvetia Coal Company, PITT 78-322 (August 23,
1978); Monterey Coal Co., VINC 78-372 (June 19, 1978); Peter White
Coal Mining Corp., HOPE 78-371 (June 16, 1978); Itmann Coal Co.,
HOPE 78-356 (May 26, 1978).

87

In view of the foregoing, respondent's motion to dismiss
is granted without prejudice to applicant's right to contest
the citation in any future civil penalty assessment proceeding ·
which may be filed by MSHA pursuant to Section llO(a) of the
Act. Applicant's opposition to the motion, including its
.supporting arguments, are rejected.

~ri1.~

/_~~
·

tf
~
/a~fge/A:. Koutras

Administrative Law Judge
Distribution:
James H. Barkley and Jerry R. Atencio, Esqs., U.S. Department of
Labor, Office of the Solicitor, 1585 Federal Building, 1961
Stout Street, Denver, CO 80202 (Certified Mail)
Charles W. Newcom, Esq., Dawson, Nagel, Sherman & Howard, 2900
First of Denver Plaza, 633 17th Street, Denver, CO 80202
(Certified Mail)
W. Michael Hackett and James F. Engelking, Esqs., Climax
Molybdenum Company, 13949 West Colfax Ave., Golden, CO 80401
(Certified Mail)
David A. Jones, Jr., President, Oil, Chemical and Atomic Workers
International Union, Local No. 2-24410, P.O. Box 949, Leadville,
co 80461
Edwin Matheson, Chairman, International Brotherhood of Electrical
Workers, Local Union No. 1823, P.O. Box 102, Minturn, CO
81645

88

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

April 4,.1979

ENERGY FUELS CORPORATION,
Applicant

Application for Review
and
Civil Penalty Proceedings

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

Docket Nos. DENV 78-421
DENV 79-69-P
(A/O No. 05-00303-03003)
Nos. 1 and 2 Strip Mines

DECISION
Appearances:

Eugene McGuire, Attorney, Holland and Hart, Denver,
Colorado, for Applicant;
Robert A. Cohen, Trial Attorney, Office of the
Solicitor,· Department of Labor, for Respondent.

Before:

Judge Littlefield

Introduction
This is a combined application for review and proceeding for
assessment of civil penalty which is governed by sections 105(d) and ·
llO(a) of the Federal Nine Safety and Health Act of 1977, 30 U.S.C.
§ 801 ~seq.
Section 105(d) provides in relevant part:
(d) If, within 30 days of receipt thereof, an operator of a coal or other mine notifies the Secretary that
he intends to contest the issuance or modification of an
order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this section, or the reasonableness
of the length of abatement time fixed in a citation or
modification thereof issued under section 104, or any miner
or representative of miners notifies the Secretary of an
intention to contest the issuance, modification, or termination of any order issued under section 104, or the reasonableness of the length of time set for abatement by a
citation or modification thereof issued under section 104,
. the Secretary shall immediately advise the Commission of

89

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 sh~ll 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.
Section llO(a) provides:
The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who
violates any other provision. of this Act, shall be assessed
a civil penalty by the Secretary which penalty shall not be
more than $10,000 for each such violation. Each occurrence
of a violation of a mandatory health or safety standard may
constitute a separate offense.
Alleged Violation
On May 11, 1978, Applicant, Energy Fuels Corporation (EFC), filed
for review of Order No. 389944 dated April 18, 1978. On November 20,
1978, the Mine Safety and Health Administration (HSHA), through its
attorney, filed a petition for assessment of a civil penalty charging
one violation of the Act.
Tribunal
A hearing was held on the above-consolidated matters in Denver,
·Colorado, on February 27, 1979. Both MSHA and EFC were represented
by counsel (Tr. 2).
Motion
After a conference referred to, infra, EFC moved to withdraw its
application for review (Tr. 4). The motion was GRANTED (Tr. 4-5).
Evidence
The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues
on the part of counsel for both parties (see, supra).
\

The Judge, after hearing alf evidence, studying the record,
reviewing the exhibits, giving sympathetic regard to mitigating
circumstances, and fully considering the criteria shown in section
llO(i) of the Act, made findings of fact, conclusions of law and
issued an ORDER on the record, rendering his decision from the
bench. One violation was found as originally charged.

90

Findings of Fact and Conclusions of Law
- The findings of fact, conclusions of law, and ORDER made on the
record from the bench are hereby incorporated her~in by reference and
are AFFIRMED (Tr. 24-26).
.
Civil Penalty Assessed
Order No.

Date

Standard 30 CFR

Penalty

00389944

4/18/78

77.404(a)

$900

Disposition
The Judge was notified by letter from the Office of the- Solicitor,
U.S. Department of Labor, that the Respondent had submitted payment of
$900, as ordered for the one violation found by the Judge in hi_s BENCH
decision. WHEREFORE the above-captioned is CLOSED.

/fl~

r. ;fact.1..d

M~{~olm P. Littlefield~--

Administrative Law Judge
Distribution:
Eugene McGuire, Attorney, Holland and Hart, 730 Seventeenth St.,
Denver, CO 80201 (Certified Mail)
Robert A. Cohen, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA
22203
Harrison Combs, Attorney, United Mine Workers of America,
900 15th St., NW., Washington, DC 20005 (Certified Mail)

91

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

April 5, 1979

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

Civil Penalty Proceeding
Docket Nos.

Assessment Control Nos~

HOPE 78-315-P
46-01364-02004V
HOPE 78-559-P
46-01364-02012V
HOPE 78-560-P
46-01364-02013V
HOPE 78-561-P
46-01'364-02014V
Amherst No. 4-H UG Mine

AMHERST COAL COMPANY,
Respondent

46-02848-02004-V
HOPE 78-316-P
46-02848-02005V
HOPE 78-317-P
Amherst No~ 5 Mine

HOPE 78-415-P
46-1369-02010V
MacGregor Preparation Plant
HOPE 78-562-P
!+6-01370-02022V
HOPE 78-.563-P
46-01370-02023\7
MacGregor No. 7 UG Mine
HOPE 78-564-P .
. 46-04624-02007V
MacGregor No. 9 Mine
TIOPE 78"'."565-P
HOPE 78-566-P
Paragon Mine

46-0136 7-020~"'.SV
46-01367-02026V

DECISION
Appearances:

Edward H. Fitch IV, Esq~, Office of the Solicitor,
of Labor, for Petitioner;
Edward I¥ Eiland, Esq., Logan, West Virginia, for
Respondent.

~epartment

Before:

Administrative Law Judge Steffey

Pursuant to written notice dated August 15, 1978, as amended
October 13, 1978, a hearing in the above-entitled proceeding was held
on October 17, 18, and 19, 1978, and December 8, 1978, in Charleston,
·west Virginia, under section 105(d) of the Federal Mine Safety and
Health Act of 1977.

92

MSHA's Petitions for Assessment of Civil Penalty were filed on
April 18, 1978, in Docket Nos. HOPE 78-315-P through HOPE 78-317-P
and each of those Petitions seeks assessment of a civil penalty for
one alleged violation of the mandatory health and safety standards.
·The Petition in Docket No. HOPE 78-415-P was filed on May 19, ·1978,
and seeks assessment of a civil penalty for one alleged violation.
The remaining eight Petitions in Docket ·Nos. HOPE 78-559-P through
HOPE 78-566-P were all filed on June 27, 1978, and seek assessment
of a civil penalty for one alleged violation with the exception of
the Petitions in Docket Nos~ HOPE 78-562-P and HOPE 78-565-P which
seek assessment of civil penalties for four and three violations,
respectively.
Issues
The issues raised by the 12 Petitions for Assessment of Civil
Penalty are whether 17 violations of the mandatory health and safety
standards occurred and, if so, what monetary penalties should be
assessed.
At the conclusion of the hearing on December 8, 1978, counsel
for both petitioner and respondent stated that they would waive the
opportunity for filing posthearing briefs (Tr. 628)~
General Considerations
Section llO(i) of the Act provides that civil penalties shall be
assessed after giving consideration to six criteria. Four of those
six factors may usually be given a general evaluation, while the
remaining two, namely, the gravity of the violation and whether the
operator was negligent, should be considered specifically in reviewing the evidence introduced with respect to each violation. Th_e criteria which may be given a general review will be. evaluated first~
History of previous violation~
Counsel for MSHA introduced as Exhibit G-2, a 130-page computer
printout listing alleged violations for which respondent has previously paid civil penalties. Exhibit G-2 is arranged so that pre-.
vious violations are listed under the specific mine where the alleged
violations occurred. The 12 Petitions for Assessment. of Civil Penalty pertain to five different mines and to one preparation plant.
Additionally, although the 12 Petitions allege a total of 17 different violations of the mandatory health and safety standards, 11 of
the alleged violations relate to repetitious violations of the same
standard. The result is that the 17 alleged violations pertain to
10 different sections of-the regulations. Of the 10 different sections, respondent has violated all but sections 75.1103-4 and
77.205 on at least one prior occasion.

93

I have consistently applied the criterion of history of previous
violations by increasing a penalty otherwise assessable for a given
violation under the other five criteria when there was evidence in
the record to show that respondent had violated the same section of
the regulations on a prior occasion~ Therefore, when penalties are
hereinafter assessed, I shall give specific consideration to the criterion of history of previous violations each time that a penalty is
assessed and the penalty otherwise assessable will be increased to the
extent that respondent's history of previous violations warrants an
increase~

Appropriateness of penalty to size of operator's business
Exhibit G-1 was submitted by counsel for HSHA. That exhibit
lists the mines which are under the control of respondent and the
annual tonnage attributable to those mines. Counsel for respondent
stated that the data shown in Exhibit G-1 were somewhat inaccurate
and Exhibit G-1 was received in evidence subject to respondent's
right to submit proposed corrections to that exhibit (Tr .. 616).
Those corrections were submitted on. December 13, 1978, and counsel
for MSHA has filed no objections to the corrections submitted by
respondent. Therefore, I am accepting the proposed changes submitted by respondent as the correct tonnages produced by respondent
for the years 1976 and 1977.
Respondent's administrative superintendent testified as to the
daily production figures for nine of the 11 mines listed on Exhibit
G-1, but one of those mines (Lundale No. 1) is no longer owned by
respondent (Tr. 602). The remaining eight mines produced a total
of 6,659 tons per day in 1977~ 1/ The total annual production for
all mines under respondent's control amounted to 1,638,312 tons in
1976 and 1,369,532 tons in 1977. Respondent has approximately
990 employees of whom 860 are union miners and 130 are management
personnel (Tr. 603).
On the basis of the foregoing information, I find that respondent ·is a large operator and that any civil penalties which may hereinafter be assessed should be in an upper range of magnitude to the
extent that they are determined by the criterion of the s.ize of
respondent's business~

l./

Daily production for 1977 was not given with respect to the No. 5,
Lundale No. 2, and MacGregor No. 8 Mines. Therefore, the daily pro-·
duction for those three mines is for 1976. The record does not show
whether the daily production for the Lundale No. 3A Mine was for 1976
or 1977 (Tr. 603).

94

Effect of penalties on operator's ability to continue in business
Counsel for respondent: did not present any evidence at the hear. ing 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 in the amounts hereinafter assessed will not cause
respondent to discontinue in business.
Good faith effort to achieve rapid compliance
With respect to 12 of the 17 violations alleged in this proceeding, counsel for MSHA either stipulated to the operator's good faith
effort to achieve rapid compliance or the inspectors testified that
there·was good faith compliance (Tr. 56; 83; 126; 161; 189; 263; 349;
375; 382; 517; and 617). As to the remaining five alleged violations,
I find that the orders or notices of termination show that respondent
made a good faith effort to achieve rapid compliance after receiving
notification that the alleged violations existed (Exhs. G-13; G-20;
G-41; G-43; and G-46). Therefore, when violations are hereinafter
found to have occurred so that penalties have to be assesse.d~ respondent will be given full credit for having demonstrated a good faith
effort to achieve rapid compliance.
Consideration of Remainin~ Factors
As iridicate<l above, t~o of the six criteria set forth in section
llO(i) of the 1977 Act, that is, gravity of the violations and whether
the operator was negligent, must be specifically'considered in reviewing the evidence presented by MSHA and respondent with respect to ecch
violation~
When violations are hereinafter found to have occurred,
findings as to grav~ty and negligence will be made and penalties will
be assessed accordingly.
Docket No. HOPE 78-315-P (4-H UG Mine)
Notice No. 1 DTN (6-39) 11/30/76 § 75.400

(E~1ibit

G-3)

Findings~
Section 75.400 requi~es that coal dust, including
float coal dust deposited on rock-dusted surfaces, loose coal: and
other combustibles be cleaned up and not be permitted to accumulate
in active workings or on electric equipment. Respondent violated
section 75~400 because loose coal, coal dust, and float coal dust
had accumulated up to 14 inches deep along the 4 road conveyor belt
entry beginning at the surface of the mine and extending inby for a

95

distance of 1,700 feet to the No,. 63 road conveyor drive. Additionally,_ loose coal had been allowed to accumulate as high as a person's
hips in piles of from 3 to 5 tons at approximately five locations
where conveyor belt tailpieces had existed prior to movement of the
belt conveyors to keep up with the advancement of the face areas
(Exh .. G-3; Tr .. 37-42; 59-60),. The ac.cumulations were moderately
serious because there were some places where coal accumulations had
risen high enough to push the belt up off the bottom rollers so as
to cause the belt to drag in the loose coal. The friction resulting
from the belt dragging in coal might have produced enough heat to
have caused a fire along the beltline. Although electric wires supplied power to the belt drives, the inspector saw no riactive" ignition sources which made him think that there was any likelihood that
an immediate fire would occur (Tr. 44-48). Respondent was negligent
for allowing the accumulations to form along the 4 road conveyor belt
because the superintendent of the 4-H Mine knew that the accumulations existed, but he said that he could not get the miners' to shovel
in that uncomfortably cold portion of the mine. The inspector said
that the 4 road conveyor belt was so close to the outside of the mine
that the coal which fell from the belt was frozen each day as it accumulated (Tr. 37; 41-46). Respondent was grossly negligent for failing
to clean up the hip-deep accumulations which had been left each time
the belt tailpiece was advanced to a new position into the mine (Tr.
36; 42),.
Discussion. In the findings given above, I have indicated that
the inspector's testimony was sufficiently detailed to support findings that coa.l accumulations existed along.the 4 road conveyor belt
and at the sites where belts had been advanced .. ·Additionally, the
inspector's notice of violation (Exhibit G-3) alleged that accumulations existed along the 63, 73, 73B, and 73C road conveyor belts
for distances of 600, 1,900, 2,800; and 500 feet, respectively. The
inspector, however, had no specific recollection as to the nature of
the alleged accumulations except for those which have been found to
have existed along the 4 road conveyor belt (Tr,. 41). Although the
inspector said that he would not have cited the accumulations along
the other conveyo~ belt~ if they had not existed (Tr~ 58)~ the forme~·
Board of Mine Operations Appeals held in Bishop Coal Co~, 4 IBMA 52
(1975), that an inspe~tor's statement to the effect that he had no
doubt but that he had observed coal accumulations is not probative
enough as to depth of the accumulations or the extent of ·the accumulations' combustibility to support a finding that the accumulations had occurred,. Likewise, the Board held in Armco Steel Corp.,
2 IBMA 359 (1973), that an inspector's statement that it was his
unvarying practice to issue notices of violation when coal accumulations qre deeper than 1-1/2 inches, was not eviden~~ showing the
actual depth of the accumulations cited and did not permit anyone to
make a finding as to the existence of the accumulations or the seriousness of such accumulations. For the foregoing reasons, the evidence does not permit me to find that coal accumulations were proven
to have existed along the 63, 73, 73B, and 73C road conveyor belts*

96

The inspector's testimony as to the accumulations along .the
4 road conveyor belt and at the sites where the belt had been
advanced was sufficiently detailed to prove that the accumulations
existed under the former Board's holding in Old Ben Coal Co., 8 IBMA
·gs (1977), because the evidence shows that those accumulations had
existed long enough for the loose coal· and coal dust beneath the
conveyor belt to freeze over a period of days as layer after layer
of loose coal fell from the belt. The mine superintendent was aware
of the accumulations and stated that it was difficult to get the
loose coal cleaned up because the miners were unwilling to work in
the cold long enough to clean up the loose coal accumulations.
Nevertheless, after the inspector's notice was issued, the superintendent was able to get all of the frozen coal removed from the
4 road conveyor belt entry. Therefore, the evidence shows that the
loose coal accumulations had existed long enough to support a finding that the operator was aware of the accumulations and was permitting them to occur (1'r. 37-39; 46; 67). The evidence also
supports a finding that the piles of loose coal which existed where
tailpieces had been advanced had been left there over a long period
of time. Cons~quently, the operator was aware of those accumulations and was permitting them to occur (Tr. 42-43; 59-60).
Conclusions. The inspector's testimony fails to show that the
coal accumuf~i:-i~ns constituted a serious hazard. The accumulations
were not continuous from the surface of the mine to the tailpiece.
Of the 1,700 feet of ·coal accumulations along the 4 road belt conveyor, about 1,200 feet were in a frozen condition whi~h would have
reduced their combustibility (Tr. 32), The inspector saw no active
electrical ignition sources and did not seem to think that the
places where the belt was "scooting in coal" were sources of friction which were hazardous (Tr. 44; 48-49).
On the other hand, there was a high degree of negligence in the
operator's permitting the coal to accumulate ald~g the 4 road conveyor belt and there was an even higher degree of negligence in
respondent's failure to clean up around the tailpieces before the
belts w,ere advanced. Such isolated piles of coal did not create
particularly hazardous accumulations from the standpoint of propagation of any fire or explosion that might have occurred, but the
piles were left on each side of the belt as it was advanced and did
create a linge~ing obstruction and potential hazard in the vicinity
of the belt conveyors (Tr. 42). Considering that respondent is a
large operator, that there was good faith compliance, that payment
of pe~alties will not cause respondent to discontinue in business,
that the violation was moderately·serious, and that there was a
high degree of negligence, a.penalty of $500 will be assessed for
this violation of section 75~400.
Exhibit G-2 indicates that 14 prior violations of section 75.400
occurred at respondent's No. 4-H Mine from 1970 through May of 1976.

97

No violations occurred in either-1973 or 1974 and no more than two
violations of section 75.400 occurred in any year except for 1972
when six violations occurred. Respondent should increase its
efforts to have additional years in which no violations of section
75.400 occur. Nevertheless, respondent's apparent efforts to reduce
the number of violations of section 75 .. 400 at its No. 4-H Mine warrants only a small increase in the penalty otherwise as~essab1e under
the other five criteria. Therefore, the penalty of $500 will be
increased by $50 to $550 because of respondent's relatively favorable
history of previous violations.
Docket No .. HOPE 78-561-P (4-H UG Mine)
Order No .. 1 JCH (7-8) 5/13/77 § 75.4.00 (Exhibit G-12)
Findings.. Section 75.400 requires that coal dust, including
float coal dust deposited on rock-dusted surfaces, loose coal, and
other combustibles be cleaned up and not be permitted to accumulate
in active workings or on electric equipment. Respondent violated
section 75.400 because float coal dust was permitted to accumulate
over previously rock-dusted areas along the No. 73-B belt conveyor
entry and connecting crosscuts to a depth of from 0 to 1/8 of an
inch beginning at the tail roller and extending outby to the conveyor belt drive for a distance of 2,800 feet. The majority of the
float coal dust was on the mine floor on the nontraveled side of the
belt conveyor and in the connecting entries where permanent stoppings
had been rionstructed on each side of the b~lt entry (Tr~ 113). The
violation was only moderately serious because in some places the
float coal dust was thin enough to have prevented the propagation of .
an explosion and if the entire entry had been as effectively rock
dusted as. it was in such places, the inspector would not have ~ited
the operator for a violation of section 75.400. Respondent was
extremely negligent for allowing the float coal dust to accumulate
because the mine superintendent knew that the condition existed but
had delayed having the float coal dust cleaned up and an ~dditional
layer of rock dust applied (Tr. 106). Power control wires were
located at the belt head. While such wires constituted a possible
ignition hazard, the inspector saw no specific ignition points
because all the wires appeared to be in good condition (Tr. 104;
111) ..

Conclusions. The evidence supports a finding that respondent
was aware of the float coal dust accumulations describ~d in the
inspectorrs order (Exh. G-12), but failed to have the float coal
dust cleaned up before it was observed by the inspector. Therefore,
the violation was proved within the holding of the Board in the Old
Ben case, supra. In assessing a penalty, it must be borne in mind
that the violation was only moderately serious because there were no
known ignition sources and because the accumulations were not so continuous as to have propagated an explosion throughout the 2,800-foot

98

expanse of the belt conveyor entryw There was a high degree of
negligence in that the mine superintendent was aware of the black
condition developing in the 73~B belt conveyor entry, but failed to
take action to ameliorate that condition until the inspector wrote
Order No. 1 JCH. This accumulation, however, was more serious than
the previous violation of section 75.400 because none of the accumulations in this instance were wet and frozen as was the case in
the prior violation, and this violation involved an accumulation
which extended for a distance of 2,800 feet as compared with the
expanse of 1,700 feet involved in the prior violation. Therefore,
a penalty of $800 will be assessed for this violation of section
75.400.
Respondent's history of previous violations now includes the
preceding violation of section 75.400 which occurred ·on November 30,
1976. That violation increased the number of violations of section
75.400 which occurred in 1976 to three violations.. The data in
Exhibit G-2 thus show th.at respondent's trend in violating section
75.400 has deteriorated from no violations in 1973 and 1974, to two
violations in 1975 and three violations in 1976. The penalty of $800
assessed for this violation should, therefore, be increased by $150 to
$950 in order to impress on respondent the importance of augmenting
its efforts to reduce the number of violations of section 75¥400 which
are occurring at the 4-H Mine.
Docket No-. HOPE 78-560 (4-H UG Mine)
Order No. 1 DPC (7-35) 8/4/77 § 75.200 (Exhibit G-44)
Findings. Section 75.200 requires each operator of a coal mine
to submit a roof-control plan suitable to the roof conditions and
mining sy.stem of each coal mine. Respondent's roof-control plan
provided that in the rehabilitation of roof-fall areasJ respondent
would install temporary supports as cleanup and roof-bolting operations advance~. Additionally, the roof-control plan specified that
no operator of a machine would advance the controls of the machine
beyond permanent roof support~ Respondent violated both of the
aforementioned provisions of its roof-control plan by having cleaned
up a roof fall without having installed temporary supports and by
having advanced the controls of a loading machine beyond permanent
supports for a distance of from 3 to 7 feet (Tr. 425-430)~ The violation was very serious because rocks were still hanging in the cavity
left by a fall of rock measuring approximately 6 feet in thicknessw
The violation was serious also because respondent's No. 4-H Mine has
a generally poor roof condition (Tr. 431~432).
Respondent was extremely negligent in allowing the violation to
occur because a strike was in progress at the time the violation was
cited and five section foremen had done the cleaning up of the rock
fall without using temporary supports. Additionally, the mine foreman was present in the vicinity at the time the inspector observed

99

a s~ction foreman removing a bolting machine from the fall area. The
section foreman agreed that he had just finished installing foui roof
bolts in the fall area. At the time the ro6f bolts were installed,
the inspector could find no timbers of a length which could have been
used as temporary supports at the time the roof bolts were installed
(Tr. 434). The inspector observed three headers about 20 feet in
length lying along the rib in the fall area, but the height o~ the
mine in the fall area was 11 feet and the 20-foot headers could not
have been used as temporary supports (Tr. 428-429)~
Discusoion. The superintendent of the 4-H Mine testified on
behalf of respondent with respect to Order No. 1 DPC. The superintendent introduced as Exhibit C a one-page drawing of the 207 Road
Unit cited in Order No. 1 DPC (Tr. 470). The superintendent's
description of the roof fall area is largely at variance with the
inspector's description of the same area. Whereas the.superintendent
stated that the roof fall extended for a distance of about 100 feet,
the inspector said that the roof fall extended for only 35 feet.
Whereas the superintendent said that at least 45 feet of the roof
fall area had been permanently bolted in accordance with the roofcontrol plan "as far as he could remember" (Tr. 474; 478), the
inspector said that the entire roof fall area contained only four
roof bolts which had been installed just a few minutes before the
inspector observed the violation (Tr. Li-45; 451) ~ Whereas the superintendent testified that the inspector made his mea,suremcnts by
standing in the belt entry where the roof fall had occurre:d, the
inspector stated that he had never at any time entered the roof
fall area and had made all his measurements by standing in a crosscut which opened into the belt entry where the roof fall had occurred
(Tr. 449; 494). Whereas the superintendent said that the inspector
had taken. two measurements extending in an outby direction, the
inspector stated that he stood in a crosscut and took one measurement of 20 feet to his left toward the face and took another measurement of 16 feet to his right away from the face (Tr,. 427; 4'1-0;
442; 471; 486).
Although a comparison of the superintendent's testimony with the
inspector's testimony shows many variances, the superintendent did not
really dispute the essential points made by the inspector~ The superintendent did not contest the fact that a large part of the roof fall
area was still unsupported and he did not claim that the inspector had
made any mistakes in measuring the distance between the lctst permanent
roof support and the fallen materials which still had to be cleaned
l\P (Tr. 478; 487-488). The superintendent did not contest the fact
that the distance from the controls on the loading machine to the end
of the machine was 13 feet (Tr. 474). Since the superintendent did
not doubt that there was a distance of from 20 to 16 feet from the
last permanent support to the remaining materials which had to be
cleaned up, there is nothing in the record to rebut the inspector's
claim that the operator of the loading machine would have had to

100

have gone from 3 to 7 feet beyond permanent support in order .to have
cleaned in an area measuring from 16 to 20 feet with a loader which
measured only 13 feet from the controls to the front of the machine
(Tr .. 426) •.
The superintendent did not see but one temporary support in the
entire area where the roof fall was being cleaned up (Tr~ 483). It is
certain that one temporary support could not have brought respondent's
section foremen into compliance with the roof-control plan becaus~
there is no way that one temporary support could be considered as
adequate for roof bolting in an uns11pported area which measured from
13 to 20 feet in length and was 20 feet wide (Exhs. G-49 and C)~
Conclusions. The foregoing discussion shows tha.t there was a
high degree of negligence involved in respondent's violation of its
roof-control plan. Bec[?use of a strike at the 4-:'H Mine, five of
respondent's section foremen had done the cleaning up of the roof
materials left in the belt entry by the roof fall. At the time the
inspector's order was written, the mine foreman was near the site of
the roof fall and would have had to have known, or if he had exercised due diligence, the mine foreman should have known. that the
section foremen were exposing themselves to possible injury or death
by working beyond the last permanent support and by failing to erect
temporary supports before installing roof bolts. The negligence was
especially great because the six men who were ignoring the safety
provisions of the roof-control plan were all trained in principles
of proper roof control and were obligated to know the provisions of
respondent's roof-control plan. In such circumstances, a penalty of
$4,000 is warranted. Far too many miners continue to be killed and
injured by roof falls to permit violations of the roof-control plan
to be taken lightly.
Exhibit G-2 shows that 33 prior violations of section 75.200
have occurred at Respondent's 4-H Mine~ Twelve of those violations
occurred in 1971. Four violations of sec~ion 75~200 occurred at
the 4-H Mine in 1976. Two had occurred in 1977. prior to the one in
August here under consideration. Since reduction in the number of
roof-control violations is essential for promotion of safety, I
believe that respondent should augment its efforts to reduce the
number of violations of section 75.200 which have occurred at the
4-H Mine~ Therefore, the penalty of $4,000 will be increased by
$400 to $4,400 because of respondent's unfavorable history of previous violations.
Docket No. HOPE 78-559-P (4-H UG Mine)
Notice No. 1 JCH (7-7) 5/13/77 § 75~1103-4 (Exhibit G-10)
Findings. Section 7551103-4 requires that automatic fire
sensors be able to provide identification of a fire within each belt

101

flight. Respondent violated section 75~1103-4 beca~se the automatic
fire sensor system for the 4-H Mine was disconnected at the master
control box. When the sensor system was reconnected, it was inoperative and would not identify any of the seven 2/ belt flights which
were being operated at the 4-H Mine. The violation was moderately
serious because miners were stationed at each belt head to give warnings if a fire should occur and firefighting materials and equip~ent
existed along the belt conveyors. Nevertheless, a sensoring system
which is working properly will identify the location of a fire and
improve the probability of early extinguishment of a fire if one
occurs. Respondent was grossly negligent for disconnecting the
sensors and for failing to obtain expert assistance for repair of
the system until it became the subject of a notice of violation (Tr.
73-77; 91; 94; 97).
Discussion. The inspector was very critical of respondent's
management for-allowing the fire sensoring system to be disconnected
because there was an indicator on the monitoring system near the mine
office which showed when the system was inoperative.. Therefore, the
inspector said that management either knew the syctem was not working
or should have known about it (Tr, 74-75). Re~pondent's chief electrician testifiec! that when the system was first installed> it operated on only one main line. At a later time, a branch line was
installed. The system worked for a short time after the branch line
was installed, but then began to show only 7 ,500 .ohms at the box on
the outside of the mine, whereas a reading of.15,000 ohms was needed
to make the system work p1·operly. The chief electrician had been trying to get the system to operate for about 4 days befo~c the notice
of violetion was issued. He estimated that he had sp~ut about a
fourth of his time during those 4 <lays working on the sensors. After
the notice was issued, the chief electrician asked respondent's electrical engineC'r for advice and the electrical. engineer explained to
him that he would have to set the end-line resistors at 30,000 ohms
in order to obtain a reading of 15,000 ohms on the outside of the
mine. The increase to 30,000 ohms was required because of the addition of the branch line to the system (Tr. 91-96).
Th·e c.hief electrician had not asked for assistance from respondent's el~ctrical engineer until after the notice of violation was

2/ Respondent's chief electrician testified that the 4-H Mine operates seven belt flights (Tr. 92), whereas the inspector's notice and
testimony refer to nine belt flights. The inspector had gone to
examine the fire sensors on the basis of a complaint filed by the
UMWA. Since this was the first and only visit the inspector made to
the 4-H Mine, I find that the chief electrician's testimony as to the
number of belt flights in the 4-H Mine is more likely to be correct
than the count of an inspector who had made only one trip to the 4-H
Mine.

102

issued. The chief electrician said that he did not think that any
special precautions needed to be taken while the sensors were inoperative because there was a man stationed at each belt head and because
there was firefighting equipment along the beltlines such as water
deluge systems and a waterline with outlets for attaching fire hoses
at 300-foot intervals (Tr. 93-94; 97-98)~
Conclusions. If the miners are given early warning of the existence of a fire, they are likely to be able to put it out before anyone is injured. Even though respondent did have men stationed at
each belt head, there was a distance of from 500 to 2,800 feet between
the belt heads (Exh. G-3). Therefore, it would be possible for a fire
to start on a belt flight at a point which would be beyond the range
of the vision of the miners who were stationed at the belt heads.
Because of the firefighting aids which existed along ·the belt, the
violation was only moderately serious, but there was a high degree of
negligence in the chief electrician's failure to seek the assistance
of respondent's electrical engineer until after the notice of violation was issued. Ali that was required to make the sensors work was
to readjust the end-line resistors. Therefore, in assessing a penalty, I am primarily trying to translate into monetary terms an amount
which wiil be sufficient to cause respondent to impress on its supervisors the need to make an early effort to correct safety violations
as soon as they can possibly he corrected by reliance upon all the
technical assistance which is available to the supervisors charged
with compliance with the safety standards~ For the foregoing reason,
I believe 'that ~·penalty of $1,000 should be assessed for this violation of section 75 .. 1103-4.
Exhibit G-2 does not show that there has been a previous violation of section 75.1103-4 at respondent's 4-H Mine .. Consequently,
there is no history of previous violations to be considered in this
instance ..
Docket No. HOPE 78-316-P (No. 5 Mine)
Order No. 1 RAN (6-77) 11/30/76 § 75.302-1 (Exhibit G-30)
Findings. Section 75.302-1 requires that the line brattice be
installed at a distance of no more than 10 feet from the area of
deepest penetration when coal is being cut, mined, or loaded, Respondent violated section 75.302-1 because coal was being cut, mined, or
loaded in the Nos. 1, 2, and 3 rooms in the 34 Road Section while the
brattice curtains were 30, 35, and 30 feet, respectively, from th1.:
working faces. The violation was serious because the curtain~ have
to be clos~ to the working face in order to assure that respirable
dust and noxious fumes will be carried away from the miners who are
working at the faces. Respondent was grossly negligent because the
preshift examiner had reported the line brattices' excessive disstances from the faces, but the section foreman had started production of coal on the day shift without moving the brattice curtains to

103

their proper location which would have been within 10 feet of the
working faces (Tr~ 378-385).
Conclusions. Respondent presented no evidence showing any mitigating circumstances in connection with this violation of section
75.302-1. The inspector stated that the men would have had to work
for more than one shift without moving the curtains for the curtains
to be from 30 to 35 feet from the working faces. While the inspector
stated that no methane has ever been detected in respondent's No. 5
Mine, the inspector noted that the No. 5 Mine is abov·e other mines
in ~1ich methane has_been detected and he said that it was possible
tha~ methane could seep up to the No. 5 Mine from the mines beneath
it. Therefore, he was unwilling to eliminate the possibility that
the line curtains would need to be within 10 feet of the faces in
order to protect the men from a possible hazardous con~entration of
methane (Tr. 381). The section foreman was especially negligent in
failing to have corrected the placement of the line brattices when
it is considered that the preshift examiner had reported the improper
placement of the curtains when he made his preshift report (Tr~ 382).,
In view of the fact that the violation was serious and that there
was a high degree of negligence, a penalty of $2,000 will be assessed
for this violation of section 75.302-1.
Exhibit G-2 shows that six violations of section 75.302-1 have
occurred in respondent's No. 5 Hine since 1973~ There has been one
violation of section 75.302-1 in each year except for 1974 when
three violations occurred. Some consideration should be given to
the criterion of history of previous violations in assessing penalties as I believe that respondent should be able to mine coal
without violating section 75.302-1 at all. Therefore, the renalty
of $2,000 will be increased by $25 to $2,025 because of respondent's
history of previous violations.
Docket No. HOPE 78-317-P (No, 5 Mine)
Notice No. 1 RAN (6-76) 11/30/76 § 75.402 (Exhibit G-28)
Findings •. Section 75.402 requires that all underground areas of
a coal mine be rock dusted to within 40 feet of all working faces
unless such areas are too wet or too high in incombustible content
to propagate an explosion or unless such areas are inaccessible or
unsafe to enter or the Secretary has ruled that a given mine is to
be excepted from the need to apply rock dust¥ Additionally, section
75.402 requires that rock dust be applied in all crosscuts which are
less than 40 feet from the working face~
Respondent violated section 75.402 because no rock dust had been
applied in the Nos. 1, 2 and 6 rooms in the 34 Road Section for distances of 50, 60, and 50 feet, respectively, from the working faces
and no rock dust had been applied in the crosscut between Nos. 1 and

104

2 entries or the crosscut between Nos~ 2 and 3 entries.. Since the
inspectorst distances of 50, 60~ arid 50 feet included the 40-foot
distances in entries which did not have to be rock dusted, the violation really pertained to distances of, 10, 20, and 10 feet, respectively, in the Nos .. 1, 2 and 6 rooms, but the inspector testified
that each cros~cut was 70 feet in length so the unrock-dusted area
consisted of 140 feet of -crosscuts and 45 feet of entries.. The violation was serious because no rock dust at all had been applied in
the entries and crosscuts cited in the inspector's notice and production was in progress so that a mine fire or an explosion could
have occurred~ Respondent was grossly negligent in continuing to
produce coal without applying rock dusi in the crosscuts or within
40 feet of the working faces~ The inspector testified that none of
the exceptions in section 75.402 for rock dusting were applicable,
that is, the areas were not so wet or incombustible that rock dusting was unnecessary, the areas were not inaccessible or unsafe to
enter, and the Secretary had not excepted the No. 5 Mine from the
rock-dusting requirements of section 75.402 (Tr. 372-376; 385),.
Conclusions. The only excuse offered by the section foreman for
his failure to rock dust was that he had ordered rock dust, but it
had not been sent into the mine yet (Tr~ 373). Despite.the claim
that rock dust could not be obtained, the viol~tion was corrected
within 1 hour and 10 minutes after the inspector issued Notice No. 1
RAN (Exh. G-29). It would appear that this was a case in which the
section foreman simply concluded that production was more important
than complying with the safety standards~ ~he inspector testified
that the working place looked black every~1ere and that he did not
think the place should have been allowed to get in such a dangerous
condition (Tr~ 37.6) ~ Since the violation was both serious and there
was a high degree of negligence, a penalty of $2,000 will be assessed
for this violation of section 75.402.
E4hibit G-2 shows that one violation of section 75.402 occurred
in respondent's N6. 5 Mine in 1974. No prior violations of section
75~402 have occurred since 1974~
In such circumstances, I find that
the penalty in this instance should not be increased at all under the
criterion of history.-0f previous violations.
·oocket No. HOPE 78-:415-P (MacGregor Preparation Plant)
Notice No. 1 NK (7-5) 4/7/77 § 77.205(a) (Exhibit G-26)
Findings. Section 77,.205(a) requires that respondent provide and
maintain a -safe means of access to all working places., The inspector
alleged in Notice No. 1 NK that respondent had erected work platforms
on the outside of two coal-drying cyclones and that respondent had
violated section 77.205{a) by failing to provide a safe means of
access to the work platforms because "the employees.were required to
walk the structure beams which were only approximately 10 iaches wide

105

and open to all sides and located approximately 30 feet above the
lower floor" (Exh. G-26)~ No men were working on the outsi4e of the
cyclones when the inspector made his examination. The inspector did
not see any men walk on the beams to gain access to the work platforms
and the inspector did not talk to any men who had walked on the beams
(Tr- 262-263).
.
Although the inspector made his examination of the cyclones
because of a complaint received from the UMWA, the complaint stated
that "the work area on the flash dryers had an old wooden walkway
with no· guard rails. The men are being requested to work in this
very dangerous area" (Exh- G-24), The inspector also wrote Order
N~~ 1 NK citing respondent for failure to provide a safe working
platform. That order is not a part of the violations alleged by.
MSHA in any of the 12 Petitions for Assessment of Civil Penalty
wb.ich are involved in this proceeding. Therefore, when the
inspector wrote Notice No. 1 NK which is here involved, he was
citing respondent for a violation which was not a part of the
UMWA's written complaint. The evidence presented by respondent
shows that respondent had erected a ladder between the cyclones.
The means of access provided by respondent was for workers to
climb the ladder to the top of the cyclones- After stepping onto
the top of the cyclones"from the ladder which was equipped with
backguards, the workers lowered themselves onto the work platforms
by using safety ropes and belts (Tr. 273; 108)~
The inspector wrote Notice No.. 1 NK on the incorrect assumption
that the only means of access to the work platforms was by walking
on the steel beams (Tr. 255-259). The inspector had not heard of
the ladder and safety ropes used for gaining access to the platforms
until respondent presented its evidence at the hearing. The inspector did not thereafter offer any rebuttal testimony to show whether or
not he believed that the use of the ladder and safety ropes was an
unsafe means of gaining access to the work platforms~ It is true
that counsel for MSHA diligently tried to show on cross-examination
that it was unsafe to use the ladder and safety ropes to gain access
to the platforms, but there is no evidence in the record to show that
if the.inspector had actually known the means of access provided by
respondent that he would have cited the use of the ladder and safety
ropes as a violation of section 77.205(a)~ Moreover, even if the·
inspector had testified at the hearing that use of the ladder and
ropes was a violation of section 77,.205(a), that would have been an
entirely different violation of section 77~205(a) from the violation
~ited in the inspector's noticew
The difficulty in finding a violation of section 77 .. 205(a) on
the basis of the evidence is that MSHA has alleged that walking on
steel beams to gain access to the work platforms was a violation of
section 77,.205(a), but that was not-the means of access provided by
respondent and the cross-examination conducted by MSHA's counsel did

106

not result in any admissions by either of respondent's witnesses
that use of the ladder and safety ropes was an unsafe means of gaining access to the work platforms (Tr. 284; 293; 297; 311-319). Therefore, the evidence simply will not support a finding that a violation
of section 77.205(a) occurred.
Discussion. Respondent's foreman at the MacGregor Cleaning Plant
testified that there were two coal-drying cyclones at the plant. The
foreman said that about once a y~~r it was necessary to weld steel
patches on the outside of the cyclones and that work platforms had
been constru~ted on the out~ide of the cyclone~ so that welders could
stand on the platforms for the purpose of welding. the patches onto the
sides of the cyclones. The foreman said that respondent had constructed
a ladder between the two cyclones and that respondent intended for the
employees who worked on the platforms to gain access to them by going·
up the ladder to the top of the cyclones and letting the1nselves down
to the platforms by use of safety ropes and belts (Tr. 270-273)w
The foreman stated that respondent had received complaints from
the men about the safety of the work platforms and that before the
notice of violation here involved was written, respondent had contracted with the Daniels Company of Bluefield, West Virginia,. to
have additional walkways and stairways constructed to improve the
safety of the men who had to work on the cyclones (Tr. 274-278)w
The foreman said that he was not aware that employees were walking
on the steel beams in order to gain access to the work platforms~
The foreman stated that the miners' primary complaint was failure of
respondent to have handrails on the work platforms (Tr, 274-291+).
A tipple mechanic testified that he had worked for the construction company which originally built the preparation plant for respondent in 1951 (Tr. 271; 307)~ Thereafter, he began to work for
respondent and .he has been a tipple mechanic at the plant for about
20 years (Tr. 306). The tipple mechanic stated that he generally
gained access to the work platforms by climbing the ladder between
the cyclones and letting himself down with safety ropes from the top
of the cyclones. While the tipple mechanic said that he had walked
the steel beams to gain access to the work platforms, he said that he
was not required to use the beams for that purpose and that he used
the ladder between the cyclones most of the time (Tr. 305-309; 321).
Conclusions. I have considered finding that respondent violated
section 77.205(a) by ruling that respondent was obligated to know how
its workers were at times gaining access to the work platforms, but
the inspector stated that work on the cyclones was done on the maintenance shift which is worked from midnight to 8 a~m. (Tr. 262r¥ The
plant foreman worked on the day shift and would have had no way of
knowing that any of the workers were gaining access to the platforms
at times by walk~ng on the steel beams instead of using the ladder
and safety ropes provided by respondent as a safe means of access to

107

the work platforms. I have also considered holding that respondent
was obligated to warn the men that they were not supposed to walk on
the steel beams to get to the platforms and that respondent should
have ~arned its employees that it would take disciplinary action
against any worker who did walk on the beams~ The difficulty with
making s~ch rulings is that there is not a scintilla of evidence in
the record to show thpt respondent's management had ever heard from
any source that the workers were walking on the steel beams. The
plant foreman stated that no workers at union safety meetings or at
any other time had ever complained to him about having to walk on
the steel beams~ He said the safety complaints related to the way
the work platforms were constructed and that there was no mention at
any time about the fact that the men lacked a safe means of gaining
access to the work platforms (Tr. 286; 291-292; 294; 299).
The evidence shows that after the notice and order discussed
above·were issued, respondent installed an elaborate system of stairways and platforms around the cyclones (Tr~ 266). Although the tipple mechanic stated that he did not feel unsafe in working on the
tipple before the new facilities weie installed, he would agree that
he feels safer now than he did before the new facilities were constructed and that the ease of making repairs has been enhanced by
the new permanent work platforms (Tr. 319).. Respondent has paid
civil penalties for other violations cited by the inspector in connection with the repair of the cyclones. Those penaltie~ were paid
in connection with the unsafe conditions which were the subject of
UMWA 1 s written complaint (Tr. 323-328) .• Consequently, I beiieve
that the purposes of the Act in bringing about safe working conditions at the cyclones have already been fully served. In any event,
the evidence adduced in this proceeding does not support a finding
that respondent violated section 77.205(a). Therefore, MSHA'.s
Petition for Assessment of Civil Penalty filed in Docket No. HOPE
78-415-P will hereinafter be dismissed~
Docket No. HOPE 78-562-P (MacGregor No~ 7 UG Mine)
Order No. 1 SWG (7-88) 11/4/77 § 75.400 (Exhibit G-50)
Foreword. After the parties had presented evidence in this proceeding for 3 days, it became necessary to continue the hearing to
December 8, 1978, because of the unavailability of one of MSHA's witnesses. When the hearing was reconvened on December 8, some of the
witnesses were again unavailable because heavy rains which fell on
the day and evening preceding December 8 had flooded some of the
roads and made it impossible for some of the witnesses to attend the
hearing. Therefore, counsel for MSHA and respondent agreed that they
would submit the issues with respect to two of the violations alleged
in Docket No. HOPE 78-562-P on the basis of a stipulation of the facts
(Tr. 605; 610-611).
.
..

108

Findings. Section 75.400 requires that coal dust, including
float coal dust deposited on rock-dusted surfaces, loose coal, and
other combustibles be cleaned up and not be permitted to accumulate
in active workings or on electric equipment. Respondent violated
section 75.400 because loose coal and coal dust in depths of from 2
to 10 inche~~ had been permitted to accuml,llate under or along the
Nos. 20, 314, and 344 belt conveyor flights. Additionally, float
coal dust had accumulated under and along the Nos. 20, 314, and
344 belt conveybrs and into the adjscent ~rosscuts to the left and
right of the belt conveyors. The accumulations were continuous for
the entire distance of the belt flights whose total length was
2, 220 feet. The accumulations ranged from 6 to 8. feet in width.
There is no evidence to show t11at any ignition sources were present,
but the continuous nature of the accumulations in conju~ction with
the continuoun coating of float coal dust warrants a finding that
the violation was serious. Respondent was grossly negligent for
permitting s~ch a large expanse of combustible materials to accumulate (Tr. 617-618; Exh. G-50). ·
Conclusjons.

Althovgh there is no testimony to show that the
violation\.;a~J:;roven under the strict standa.rds of proof enunciated
by the forrner Board of Hine Operations Appeals in Old Ben Coal Co.,
8 IBM.A 98 (1977), I believe that the exhibits and stip~lations support a finding that the accumulations had existed for a sufficient
period of time that respondent, by e~ercise of due diligence, should
have discovered the accumulations before th~y were cited by the
inspector in Order No. 1 SWG. That conclusion is supported by the
exhibits. Order No. 1 SWG was written on a Friday at 2:23 p.m.
Assuming that ~o cleanup work was ~one on either Saturday or Sunday
at the mine, 3 working days in the following w~ek were required to
clean up the accumulalions and apply an ample coating of rock dust
in the areas cited in the inspector's order (Exhs. G-50 and G-51)~
I conclude that accumulations which required 3 days for cleanup
wollld have had to have occumulated over a time period during which
respondent should have been aware of them so as to have tsk~n
action to clean them up before they were cited by the inspector~
Counsel for respondent stated that the accumulations described in
the inspector's order were not a condition which was condoned or
approved of by respondent's management (Tr. 612).
Considering that the instant violation of section 75.400 was
serious and involved a high degree of negligence> a penalty of
$2,000 will be assessed for this violation.
Exhibit G-2 shows that 58 prior violations of section 75.400 have
occurred at respondent's No. 7 Mine. The number of violations -ranged
from two to five per year from 1970 to 1975. In 1976 there were
29 violations and in 1977 there were eight violations of section
75.400 prior to the one here under consideration. The evidence shows

109

that respondent made a commendable reduction in the number of violations between 1976 and 1977, but I consider that occurrence of eight
violations in 1977 is still an unwarranted number of violations of
section 75.400. Therefore, the penalty of $2,000 will be increased
by $500 to $2,500 because of respondent's unfavorable history of previous violations at its No. 7 Mine.
Docket No. HOPE 78-562-P (MacGregor No. 7 UG Mine)
Order No._ 1 SWG J7-102)

11/9/77 § 75 . .514 (Exhibit G-54)

Foreword. The facts concerning Order No. 1 SWG dated November 9,
1977, were stipulated by counsel for MSHA and respondent for the s·ame
reasons stated above under my discussion of Order No. 1 SWG dated
November 4, 1977.
Finding_§!_· Section 75. 514 provides that all electrical connections or splices in conductors shall be mechanically and electrically
efficient and that suitable. com1ectors shl~.11 be used. The section
also requires that electrical connections or splices in insulated
wires be re.insuJ.ated at least to the smne degree of protection as
the remainder of the wire. Respondent violated section 75.514
because of the existence of the facts hereinafter given.
The end of the trailing cable of a three-fourths horsepower pump
had been stripped. of all insulation to expose both conductors for a
distance of about l in.ch and the ground conductor had been cut out
of the cable. Each of the bare conductors had been wound about a
separate nail. TLe end of the puinp' s trailing cable with the nails
attached to the bare conduct.ors, as described above, wc..s found by
the inspector at a point along a traili;:ig cable to a Joy 21 shuttle
car. The.re were two boles in the shuttle car's cable which w:.:"!re far
enough from each other to match the distance betv?een the two nails
in the pump's trailing cable. The existence of the bare conductors
and nails in proximity to the holes in the shuttle car's trailing
cab le supports a finding, and I so find, tlrnt the nails had been
driven into the shuttle car's cable for the purpose of obtain:i.ng
elec tdci ty to power the pump (Tr. 618·-620; 625-628; Exhs. G-51-1
and G-58).
Such a crude connection. was not mechanically or electrically
efficient; suitd~le connectors were not used; and no attempt at reinsulation of either trailing cable had been made. The violation was
very serious because the bare conductors would have exposed to
electrocution any person who might have touched the bare conductors
and nails while they were being used to power the pump. There was
also a strong likelihood that sparks could come from the bare conductors so as to cause a fire or explosion. The nail holes left in
the shuttle car's trailing cable would have continued to be an electrocution hazard if they had not been discovered by the inspector so
that the holes in the cable could be reinsulated to the same degree
of protection as the remainder of the trailing cable.

110

Conclusions. Since the violation was very serious and there was
an extremely high degree of negligence, a penalty of $6,000 will be
assessed for this violation of section 75.514. Exhibit G~2 shows
that. 10 prior violations of section 75.514 have occurred at respondent's No. ! Mine. The largest number of violations of section
75.514 occurred in 1976 when five were cited by inspectors. It is
encouraging to note that only one violation of section 75.514 had
occurred in 1977 prior to the instant violation, but there is no
reason for violations of section 75.514 to occur if respondent's
electric.ians are properly trained and supervised. Therefore, the
penalty of $6,000 will be increased by $50 to $6,050 under the cri·terion of history of previous violations.
Docket No. HOPE 78-562-P (MacGregor No. 7 UG Hine)
Order No. 1 RJW (7-103) ll./11/77

§

75.518 (Exhibit G-40)

Findings. Section 75.518 requires the use of automatic circuitbreaking devices or fuses to protect all electric equipment against
short circuit and overloads. Respondt~nt violated section 75.518
because two 60-amp fuses in the switch box for a pump motor had been
blown and wire had been used to bridge over the fuses so that the
pump would continue to run~ Bridging over the fuses eliminated
short circuit and overload protection for the pump. The violation
was moderately serious because, at the time the violation occurred,
a malfunction in respondent's ventilating system had caused intake
air to come out of the 1'line instead of going into the section of th£
mine here involved. Therefore, if the pump motor had become overheated from lack of short circuit and overload protection, any smoke
from the pump motor would have been carried out of the mine instead
of going into the mine so as to endane;er auy miners who might have
been working inby the pump. Respondent was grossly negligent for
deliberately destroying the pump motor's short circuit and overload
protection (Tr~ 544-549; 555; 575-579).
Discussion. Respondent's second-shift maintenance foreman testified that the pump was receiving power through a nip attached to a
trolley wire.. The maintenance foreman said that there was a fuse in
the nip and that the fuse in the nip would have continued to provide
the pump motor with short circuit and overload protection (Tr. 563564) ¥ The inspector presented rebuttal testimony in which ·he stated
that when he wrote his order citing the bridging over of the two
fuses in the switch box, he specifically noted that there was no fuse
in the nip. The inspector said that when the maintenance foreman
replaced the fuses at the switch box, he also replaced the nip with
one which had a fuse in it (Tr. 585). I am accepting the inspector's
version that there was no fuse in the nip because respondent's-maintenance foreman stated that there was a fuse in the nip the last time
he inspected it, but that he did not inspect the nip on the day the
inspector's order was written (Tr. 566). Therefore, I have found

111

abqve that the bridging over of the fuses in the switch box had the
effect of destroying short circuit and overload protection for ·the
pump because I find that no fuse existed in the nip attached to the
trolley wire.
Another discrepancy between the inspector's testimony and that
of the maintenance foreman is that the foreman claimed that the motor
on the pump was a 10-horsepower motor instead of a 5-horsepower motor
as reported by the inspector (Tr. 560; 585). I find that it is
unnecessary to determine which witness was right about the s.ize of
the pump motor since the inspector said that either a 10-horsepower
or a 5·-horsepower motor would have had adequate protection if 60-amp
fuses had been used (Tr. 586). The inspector agreed that the mine
superintendent's testimony about the fact that intake air was
actually coming out of the section instead of going in could be
correct (Tr. 584). For that reason, I have found above that the
violation was moderately serious because any smoke which might have
come from the motor if an overload had occurred would have been
unlikely to go toward the working face so as to create a hazard for
the miners who are working inby the pump cited in the inspector's
order.
Concl~sions.
A large penalty is not warranted under the criterion of gravity, but I have always considered the deliberate act
of bridging over fuses to be an act of extreme and intentional
negligenC'e. 3/ Therefore, a penalty of $1,000 will be Clssessed fo;:
this violation of section 75.518. Exhibit G-2 shows that 14 previous violations of section 75.518 have occurred at respondent 1 s
No. 7 Mine. The number of violations ranged from two to three in
1971, 1972, and 1974, but there were seven ~iolations of section
75.518 at the No. 7 Mine in 1976. That is a sharp increase iri
failure to provide proper short circuit and overload protection
justifying an increase of $500 under the criterion of history of
previous violations. Therefore, the penalty of $1,000 will be
increased by $500 to $1,500 because of respondent's unfavorable
history of previous violations.

~./

The inspector testified that the mine foreman told him that he
had personally bridged over the fuses in the.switch box (Tr~ 551;
556). The mine foreman testified that he did not tell the inspector that he had bridged over the fuses (Tr. 622). I have found
that respondent was grossly negligent in bridging over the fuses.
I would not change the finding as to negligence regardless of
whether the mine foreman did the bridging or some other employee
did it as all of respondent's witnesses agreed that fuses of the
proper size were readily available at the time ·and that it was
unnecessary to bridge over the fuses (Tr. 564; 576; 594)~

112

Docket No. HOPE 78-562-P (MacGregor No. 7 UG Mine)'
Order No. 2 RJW (7-104) 11/11/77 § 75.518 (Exhibit G-42)
Findings. Respondent violated section 75.518 a second time
on November 11, 1977, by bridging over two 10-amp fuses for a ·
three-fourths-horsepower pump. The second pump was located about
60 to 80 feet inby the pump which was discussed above in connection
with Order No~ 1 RJW. The seriousness of the violation is moderate
because intake air was tra~eling in the wrong direction at the time
the violation occurred so that any smoke that might have come from
·an overloaded motor would have come out of the mine and would not
have created any hazard for the miners working inby the pump. There
was an extremely high degree of negligence because the two fuses in
the switch box as well as a fuse in the nip at the irolley wire had
all been bridged over with copper wire (Tr. 588-591)~
Discussion. The testimony given by the second-shift maintenance
foreman indicated that he could not be certain whether he replaced
the nip before or after the inspector's Order No. 2 RJW was issued
because he said that the motor crew tears out the nips with considerable regularity (Tr. 593). The maintenance foreman could not understand why anyone would have bridged over the fuses with wire because
he said there were plenty of fuses at the mine to replace any that
might be blown (Tr. 594).
Conclusion. Since the testimony is almost identical for the
second violation of section 75.518 as it was with respect to the
first violation, I conclude that a penalty of $1,000 should also be
assessed for this second violatioti of section 75.518. There is no
difference in respondent's history of previous violations because
the first· and second violations were cited on the same day by the
same inspector within a period of 15 minutes. There would not have
been ti~e between the citing of the two violations for respondent
to have institut·ed an· improved program for inspection of electrical
equipment. In such circumstances, the penalty of $1,000 will be
increased by $500 to $1,500 because of respondent's unfavorable
history of previous violations of section 75.518 at the No. 7 Mine.
Docket No. HOPE 78-563-P (MacGregor No. 7 UG Mine)
Notice No. 3 OEB (7-13) 9/16/77 § 75.604 (Exhibit G-37)
Findings. Section 75.604 requires that perma~ent splices be
mechanically strong and effectively insulated and sealed so that the
splices will exclude moisture. The splices are also required by that
section to be made of suitable materials which will provide flarneresistant qualities and good bonding to the outer jacket. Respondent
violated section 75.604 because there were five defective permanent
splices on the trailing cable to the No. 86 shuttle car operating in

113

the No. 373 Section. The five splices had been rubbed and frayed to
the.extent that at least one electrical conductor was showing for a
distance of from one-fourth to three-fourths of an inch in each
splice. The five splices began at a point about 60 feet outby the
shuttle car and were all located within an additional 40 feet of the
cable so that all of the defective splices were located within
100 feet of the shuttle car. The violation was very serious because
anyone who might have had reason to.pick up the trailing cable could
have been electrocuted if he had touched any part of the bare conductors. Respondent was grossly negligent for allowing the five
splices to deteriorate so as to expose the conductors* Respondent
should have discovered the defective splices and should have repaired
them before they deteriorated to the hazardous condition described in
the notice (Tr. 511-516).
Discussion. Respondent's witnesB testified that there was a
wildcat strike at the No. 7 Mine which began on June 21, 1977, and
ended on September 7, 1977. No weekly inspections of electrical
equipment were made during the strike and the first inspection made
after-the strike w.::s on September 16, 1977, which was the same day
that the instant notice of violation was written. Additionally,
respondent's witness stated that the five permanent splices cited
in the notice were not in as bad a condition as the inspector
claimed because he could see bare conductors at the ends of three
of the splices only by lifting up on the ends of the sleeves on
those three permanent splices~ Respondent's witness agreed with
the inspector that two permanent splices had boles in the middle
about the size of a match stem, but he said that the conductors in
those two splices were still covered by their individual wrappings
so that no bare conductors were exposed (Tr. 527-530).
Respondent's witness also testified that 2 days after they had
replaced the permanent splices cited in the inspector's notice, they
examined the new splices and found that the same conditions cited in
the inspector's notice again existed. They then discovered that the
cable guide was too small for th~ standard-sized trailing cable being
used on the shuttle car. The guide was large enough to accommodate
the trailing cable until such time.as permanent splices were made in
it. The splices, however, were so large that the guide squeezed them
and c·aused them to wear out very fast. The excessive wear in the
splices stopped when the cable guide was replaced with a guide large
enough to permit permanent splices to pass through it (Tr. 531-532).
Respondent's defense is not persuasive. Respondent's witness
stated that it would not be normal for five permanent splices to be
made in a single trailing cable within a time period of 12 weeks (Tr.
540). Since the five permanent splices again wore out within 2 days
after they were replaced following the writing of the inspector's
notice (Tr. 531), there is reason to conclude that respondent should
have discovered the worn condition of the splices over the period of

114

several weeks during which the five permanent splices would originally have been made. In other words, it is highly improbable
that five permanent splices were made in fhe cable during a single
day., Since all.the splices were within 40 feet of·each other, the
electricians who installed the second, third, fourth, and fifth
splices should have observed the worn and dangerous condition of
the prior splices because they were wea~ing out within a ~eriod of·
2 days after being made. If the electricians who made the successive permanent splices did not discover the worn condition of the
prior spli~es at the time they were making additional splices, there
was an ample period prior to the strike when the worn splices should
have been discovered and corrected during the weekly examination of
electrical equipment.
Conclusionc. Respondent's witness claimed that bare conductors
were visible only in three of the five worn splices, but he agreed
that it would have been possible for a person handling the cable at
one of the locations of those three splic~s to have been elecirocuted (Tr. 538-539). Therefore, regardless of whether one accepts
respond~nt's description of the splices or MSHA's descriptiori of
the splices, the violation was very serious. As I have explained
and found above, the violation was the result of gro~s negligence.
Therefore, a penalty of·$2,000 will be assessed for this violation
of section 75.604.
Exhibit G-2 shows that 11 prior violations of section 75.604
have occurred at respondent's No. 7 Mine since 1973. Five violations
occurred in 1974, two oc~urr~d in 1975, one occurred in 1976, ~rid
one~ occurred in 1977 prior to September 16, 1977, when the instant
violation was cited. The evidence shows, therefore, that rAspondent
has made an effort to reduce the number of violations of section
75.601+ which have occurred at its No. 7 Mine, although its record·
for 1977 had deteriorated to two violations by Septeinber of 1977.
Consequently, the penalty of $2,000 will be intrea~ed by only $50
to $2,050 in view of respondent'~ relatively faMorable history of
previous violations.
Docket No. HOPE 78-564-P (MacGregor No. 9 Mine)
Notice No. 3 BRS (7-32) 9/22/77 § 75.514 (Exhibit G-35)
Findings. Section 75,514 provides that ail electrical connections or splices in conductora shall be me~hanically and electrically
efficient and that suitable connectors shall be used. rhe section
also requires thai elect~i~al connec~ions or splices in insulated
wires be reinsulated at least to the same degree of protection as
the remainder of the wir~~ Respondent violated secti6n 75.514
because five permanent splices in the trailing cable to the No. 03
shuttle car in the 9 Road Section had been made by tying the con•
ductors together instead of using proper connectors which were

115

available at respondent's No. 9 Mine. In two of the five defective
splices, the ground conductors had been laid parallel and taped.
There were holes in the external covering over two of the five permanent splices. The violations were very serious.because conductors tied together are inclined to slip which, in turn, may have the
effect of causing the two ends of the ground conductors to lose contact when the .ends are taped and placed parallel with each other~ If
a bare conductor should happen to make contact with the frame of a
shuttle car at a time when the ground conductor is not connected>
any person touching the shuttle car's frame could be electrocuted.
Additionally, if the ground conductor is ineffective, the cable m:
beco:ne overheated. and cause a spark which could produce a fire or .1
exp.lesion. The probability of an explosion in the No. 9 Mine was
reduced by the fact that no methane has ever been detected in the
mine. Respondent was grossly negligent for allowing the permanent
splices to be made by tying knots in the conductors because respondent's chief electrician knew that his electricians were prone to
tie knots in conductors when making splices, but he has never discharged anyone for such practices and there is nothing in the record
to show tho!:. ht~ has imposed any sanctions on employees who make
splices by tying knots in conductors (Tr~ 331-334; 337-343; 356;
363·-364; 365).
Discues1.on. Respondent's chief electrician and the inspector
agreed that if-splices are made in cables by tying knots in the conductors instead of using proper ·connectors, then~ is no way to dis- ,
cover that the splices have been made inproperly once the splices
have been covered by the vulcanized sleeves which are required to be
placed over permanent splices (Tr~ 353; 358; 365). Respondent's
chief electrician, however, knew that the five electricians who were
employed at respondent's No. 9 Mine had a propensity for tying knots
in conductors (Tr~ 365). The practice of makini splices by tying
knots in the conductors was so prevalent at the No. 9 Mine that the
inspector who wrote the instant notice of violation stated that he
performed his examination of the permanent splices in this instance
because Uh\JA had made a complaint to HSHA. that splices were being
improperly made at the mine (Tr. 337). The same five electricians
who were employed at the No. 9 Mine when the five improper splices
were made are still working at the No. 9 Mine (Tr. 366). There is
nothing in the record to show that respondent has announced any
sanctions which will be used to assure that proper connectors will
be used when splices are made at the No. 9 Hine.
Conclusions. Since the violation was very serious and respondent
was grossly i:;-egTigent for allowing the violation to occur, a penalt-y
of $2) ooo-will be assessed for this violation of section 75 .5145
Exhibit G-2 shows that one prior violation of ~ection 75 .. 514 has
occurred at respondent's No. 9 Mina. Therefore, the penalty of
$2,000 will be increased by $25 to $2,025 under the criterion of
respondent's history of previous violations.

116

Docket No. HOPE 78-565-P (Paragon Mine)
Order No. 1 RM (7-56) 4/14/77 § 75.400 (Exhibit G-17)
.
Findings. Section 75~400 requires that coal dust, includifig
float coal dust deposited on rock-dusted surfaces, loose coal, ·and
other combustibles be cleaned up and not be permitted to accumulate
in active workings or on electric equipment. Re~pondent violated
section 75.400 because loose coal, coal dust, and float coal dust
existed on the structures and electrical components of the belt head
ot the No. 713-C belt conveyor. Additionally, loose coal and ccal
dust existed along the belt line from the belt head to the tailpiece
in depths of from 0 to 17 inches for a distance of 1,500 feet. Most
of the accumulations were either under the belt c~nveyor or in close
proximity to the belt (Tr. 155-156). While electrical wires supplied
power to the belt drive, the inspector saw no bare wires which cn'ated
an explosion hazard. The Paragon Hine releases methane, but the inspector did not think methane would be likely to accumulate in the belt
entry. For the foregoing reasons, the violation was only moderately
serious. Respondent was negligent for permitting the accumulations
to occur (Tr, 155-159; 164).
Discussion. The assistant superintendent of respondent's Paragon
Mine testT{1e-d-that resp•.1ndent lws u belt ex.:i~iner who checks the condition of the conv(:~ym: belts in the Paragon Hine on each shift. Hi:~
stated that the belt examiner 1 s book chowed that the No. 713-C belt
conveyor was okay on April 11. The next entry for Apri 1 12 stated
11
[ n] eeds watet·
fixed on head 11 • The suosequent entry for .Apri 1 13
stated "713-C needs spot cleaned 11 • The entry for the cby the instant
order was written stated "713-B .:md C belts need cleaned, needs
rollers''• The assistant superintendent stated that the belt was not
cleaned ori April 13 after the belt examiner had indicated thst the
belt conveyor needed to be "spot cleaned 11 • The inspector testified
that no cle~ning was being done along the belt at the time he wrote
his order on April 14 at 11:22 a.m. (Tr. 157)·~ In such circumstanc2s,
the preponderance of the evidencJ shows that reipondent knew about
the accmnulet.ions befon:: they were cited in the inspect''J" 1 s order,
but respondent was taking no steps to cleaT.l. up the loos:· coal and
coal dust et the time the accumulations were first observed by the
inspector. Therefore, I find that the violation of section 75.400
was proved under the former Board's opinion in Old Ben Coal Co.,
8 IBHA 98 ( 1977), which "has previously been dis-cussed in thT;decision.
Conclusions. Since the vi6letion of section 75.400 was only
moderately cerious and since the combustibles had not been accumulating for a very long period before they were cited by "the inspector, a pen~lty of $400 will be assessed.
Exhibit G-2 indicates that 65 prior violations of section 75.400
have.occurred at respondent's Paragon Mine- In 1970 and in every year

117

thereafter, there have been at least four violations of section
75.400 at the Paragon Mine. ·A total of 16 violations occurred in
1976 and five violations of section 75.400 had occurred in 1977 at
the Paragon Mine by April 14, 1977. Respondent has not exercised a
sufficient effort to reduce accumulations of combustible materials at
the Paragon Mine. Therefore, the penalty of $400 will be increased by
$500 to $900 because of respondent's unfavorable history of previous
violations.
Docket N~! HOPE 78-565-~ (Paragon Mine)
Order No. 1 RM (7-46) 5/1+/77 § 75.400 (Exhibit G-18)
Findings. Respondent again violated section 75.4-00 on May 4,
1977, or just 2 weeks after the preceding order citing a violation
of section 75.400 was written. This time loose coal, coal dust, and
float coal dust existed along the No. 697-A conveyor belt for a distance of 4,000 feet~ The accumulations ranged from 0 to 16 inches
in depth and were effectively continuous. The accumulations were
deepest· on both side~; of the teilpiece, but float coa.l dust existed
for the entire 4,000-foot length of the conveyor belt. Although the
existence of the accumulations had been recorded in the preshift
examination book, the inspector saw no cleaning alring the belt. at
the time he issued his order. The violation was moderately serious
because no ignition sources were observed by the inspector. Respondent was negligent in perwitti11g the accumulations to occur (Tr. lD0187).

Conclusions. Since the accumulations were reported by the preshift-exa-;;iner a.nd no steps were being taken to clean up the accumulations at the tim~ the ord~r was written> I tonclude that respondent
·was permitting the accumulatio11s to occur and that a violation of
section 75.400 was therefore proven under the former Bo~rd's opinion
in Old Ben Coal C~_.:_, 8 IBHA 93 ( 1977), supra.
Although the inspector saw no active ignition sources with
respect to either the preceding violation of section 75.400 or this
violation of that section, the inspector said that he would classify
the violation citad on May 4 as more serious than the one cited on
April 14 because the violation of May 4 .involved an expanse of loose
coal, ccal dust, and float coal dust which was 2,500 feet longer than
the accumulations observed on April 14. I agree with the inspector ·
that the violation observed on May 4 was potentially more serious
than the one observed on April 14~ The penalty for the violation of
May 4 should, therefore, be greater than the penalty previously
assessed for the violation of April 14. Consequently, a penalty of
$800 will be assessed for this violation of section 75~400~
Exhibit G-2, as indicated above, shows that 65 pridr violations·
of section 75~400 have occurred at respondent's Paragon Mine~ The

118

preceding violation of section 75 .. 400 which occurred on April 14
raises to six the number of violations of section 75.400 which had
occurred in 1977 at the Patagon Mine by April 14, 1977. In view of
respondent's unfavorable history of previous violations, the penalty
of $800 will be increased by $550 to $1,350.
bocket No. HOPE 78-565-P (Paragon Mine)
Order No. 1 RP (7-62) 4/14/77 § 75.200 (Exhibit G-19)
Findings. Section 75.200 requires each operator of a coal mine
to submit a roof-control plan suitable to the roof conditions and
mining system of each coal mine. Respondent's roof-control plan provided that the width of the entries should not exceed 20 feet where
roof bolts are the sole means of roof support. Respondent violated
section 75.200 because the Nos,. 2, 3, 4, 5, ·and 6 entries in the
No. 2 Section were up to 23 feet wide for a distance of 60 .feet inby
the last open crosscut.. The entries were up to 3 feet wider than the
20-foot width permitt<~d by the roof-control plan. Wide entrie.s nnr-·
row the si~e of the pillars left for supporting the roof and increase
the stress on the roof span. Although the inspector did not detect
any actual loose roof, he said that 80 to 85 percent of the fatalities
which occurred in underground coal mines in 1974 and 1976 result1o~d
from failure of operators to comply with their roof-control plansw
The potential for a roof fall made the viblation serious. Respondent
was grossly negligent for allowing the widths to be driven excessively
wide for a distance of 60 feet because 2 or 3 days would be required
for the miners to advance 60 feet ~fuile continuously cutting the
entries excessively wide (Tr. 195-205).
Disc~ssion.
Respondent's assistant superintendent testified that
because of illness, vacations, etc., respondent had a shortage bf section foremen at the time Order No. 1 RP was written and that it had
been necessary to use a section foreman from anoth2r mine. The substitute section foreman was inexperienced in supervising a section
in wh:j_ch a continuous mining machine was used (Tr. 210). The assistant superintendent conceded, however, during cross-examination that
the excessive widths occurred over a period of several days and that
during part -0f that time, an experienced section foreman was also
driving the entries excessively wi<le (Tr. 213). The assistant mine
superintendent said there was no way to know which foreman had driven
which parts of the entries and he concluded that both of them were
probably driving the entries wider than they should have been driven~

The inspector said that it was a section foreman's duty to note
when excessive widths were being driven and that he should have been
able to narrow the cuts back to the proper width (Tr. 207). Additionally, since the roof bolter had begun to install five rows of bolts
to compens~te for the excessive width, the section foremen should
have noticed the extra row of roof bolts and should have narrowed

119

the entries so that the extra row of roof bolts would not have·been
necessary. Moreover, the section foremen should have recogniied the
excessive widths and should have installed timbers or cribs in order
to give the roof increased support (Tr. 205).
Respondent's assistant mine superintendent also testified that
after the inspector cited the excessive widths, respondent had its
engineers measure the entries cited in the inspector's order. The
engineers measured the entries at lO~foot intervals and found the
widths of the entriec to be as follows: No. 2 entry ranged from
17.95 to 21.70 feet and averaged 20.33 feet. No. 3 entry ranged
from 19.70 to 22.20 feet and averaged 20.82 feet. No. 4 entry
ranged fro;n 21.5 to 23 feet and ave1:age.d 22 .25 feet. No. 5 entry
ranged from 19.70 to 22.50 feet and averag~d 20.74 feet. No. 6
entry ranged from 20.75 to 23.20 feet and avera.gc~d 2L.71 feet (Tr.
212). The engineers' meacurenents support the inspector's order by
showing that all the entries cited in the inspector's order were
excessively wide in some places. The No. 4 entry was especially
wide since it averaged 2.25 feet in excess of the 20-foot width
require<l by respondent's roof-control plan~
Concl11sio,rn,.

As the inspector's testimoc1y shows, it is extremely

import:&-;:;f-ti~;·[:-o.peraton; cn.r.efu J ly adhere to their roof-control plans.
Although the evidence fails to show th2t roof conditions were frsgile

in the No. 2 Section, it is essential that miners be given as much
protertion against potenti~l roof falls as possible. Since the violation was serious and respcndent was Brossly negligent for allowing
the entries to be driven wide for several days, a penalty of $2,000
will be assessed for this violation of section 75.200.
Exhibit G-2 indicates that 53 prior violations of section 75,200
have occurred at respondent's Paragon Mine. There were 10 violations
in 1975 and eight violations in 1976. Only one violation had occurred
in 1977 prior to April 14, 1977, the date of the instant violation.
The evidence, therefore, shows that respondent has made an effort to
reduce the number of violations of section 75.200 which have been
occurring at its Paragon Mine. Therefore, the penalty of $2,000 will
be increased by only $100 to $2,100 because of the improving trend in
frequency of violations of section 75,200 at respondent's Paragon Mine.
Docket No. HOPE 78-566-P (Paragon Mine)·
Order No. 1 EW (7-129) 9/20/77

§

75.517 (Exhibit G-15)

Findinos. Exce~t for certain wires not here relevant, section
75.5llprovides that power wires and cables shall be insulated adequately and be fully protected. Respondent violated section 75.517
because the trdiling cable to the continuous mining machine in the
No. 2 Unit contained six places in the outer jacket with insufficient

I

120

insulation. Bare wires for a distance of 1 inch were exposed at three
of the locations and the mine floor was wetw The continuous mining
machine was not operating at the time the six inadequately insulated
places were observed, but the m~chine had been operating on the previous shift. When the machine did operate, the trailing cable conducted 440 volts of alternating current. The six inadequately
insulated places began at a point 30 feet outby the continuous mining machine and ended at a point 50 feet outby the machine. A defect
in a trailing cable no larger than a pinhole is a sufficiently large
opening to cause electrocution if a cable is touched where the hole
exists. The violation was very serious (Tr. 117-121).
The inspector had examined the No. 2 Se_ction. on September 16,
1977, or 4 days prior to the day he wrote Order No. 1 EW here
involved. During the previous inspection, he had observed the
inadequate insulation but he did not then inspect the Lrailing
cable because the continuous mining machine was out of service and
was being repaired. The inspector, however, advised the section
foreman, and both the assistant mine superintendent and the mine
superintendent that the trailing cable to the continuous mining
machine needed repairs and that he would inspect the trailing cable
at a later date (Tr. 125; 130)w
After the inspector had told them about th6 inadequate insulation
on the trailing cllble on September 16, the assistant mine supe1·inten--

dent called the supply house and ordered the snpply house personnel
to send to the mine the m~terials needed to repair the cable. The
chief el.ectrician told the electrician on the night shift to rn~ke the
requin'd repairs. The chief electrician then entered in the electrical book provided for recording examinations of electrical equipment
that the rep~irs had been wade. After the inspector issued his order
on September 20, 1977, citing the six defective plE'ces in the trailing
cable, the assistant mjne superintendent again asked the chief electrician about the repairs ~1ich were supposed to have been made on
September 16, and the chief electrician insisted that the repairs
had been made on Septemb.:r 16. Therefore, the assistant mine superintendent testified that he had to assume that the repairs were made
on September 16 and that additional defective places appeared in the
cc:1ble between the :i.1spector' s cursory ex.cnnination on September 16
and his c<:lreful inspection on September 20 when the order citing
the inadequate insulation was issued (Tr~ 130-138).
No one doubted the inspector 1 s finding that six inadequately
insulated places were observed in the trailing cable on September 20
(Tr. 135). The inspector presented rebuttal testimony in which he
stated that he believed that the six inadequately insulated places he
observed on September 20 were the same defective places which he saw
in the cable on September 16, but he conceded that he did not observe
the cable continually between September 16 and September 20 and could

121

not, therefore, state with certainty that no repair work had been performed on the cable between September 16 and September 20 (Tr~ 143;
147-148). Respondent was negligent for failing to make certain that
the defective places in the trailing cable were repaired (Tr. 143;
147-148).
Discussion.- The entry made by the chief electrician in the electrical examinution b0ok was "[r)etaped bad splices in cable, Number 22
miner'' (Tr. 132). That entry supports a conclusion that the chief
electrician may have misunderstood what type of defects the inspector wanted corrected because no "bad splices" were involved, There
had been no severed wires which would have required the making of
splices~
The bare conductors observed by the inspector were places
where the insulation had been damaged so as to expose conductors,
That type of defective insulation can be repaired simply by covering
the defective places with proper tap1! so as to restore the insulBtion
and prevent possible shock (Tr. 149-150). The assistant mine superintendent was definitely under the iMpression that permanent splicing
materials would be required to repair the trcd ling cable because the
materialu which he ordered the Eupply depart~ent to send to the mine
were materials for making permaaent splices (Tr. 142).
There is every reGnon to believe that the defective insul~tion
reported to rnannf,eme;1t on se·ptembcr 16 was not repa.ired befo:re
September 20 simply because the a8sist~nt mine superintBndent and
mine supei;' .i.nt·~ndent misvudersto<Jcl the type of defect which the
inspecl0l7 \-Wnted corrected. Therefore, the electricinn who m<Jde thc-•
actual repairs could eaRily have retaped permanent splices in the
trailing cable without realizing what he was supposed to be looking
only for deft!ctive insulation at places where no splices weP~ needed.
Despit;;.~

the confusion about 1·;hat the inspt~ctor actu.o.Uy told
Septemb.::r 16, the fact remains that extremely dangerc.us
bare con·:luctors were exposed in the trailing cable at a point which was
no more tlwn 50 feet cut by the continuous mining machine. The mnchi.ne
was out of service for repairs on Sept~mber 16. the section foreman
knew that the inspect~r had s~~n so~e defects in the trailing cable.
The least he could have done between September J.6 and September 20
would have been to have examined th~ trailing cable so as to make
sure that it was properly insulated from one end to the other. The
gravity of existence of bare conductors in a 440-volt trailing cable
ia a wet section is so great that no section foreman or chief electrician should have left any doubt as to whether such bare conductors
had been located and fully reinsulated as req1!ired by section 75 ~517.

management

O'J

Conclusions. Respondent's witness did not dispute the fact that
bare conductors in a trailing cable expose miner~ to possible electrocution, particularly ~;hen it is considered that the mine was wet in
the area where the continuous mining machine was being .operated¥
There was at least ordinary negligence by management in not having

122

made sure that the trailing cable was adequately.insulated between
the inspector's informal warning given on September 16 and his offi. cial inspection raade on September 20. In any event, the. extreme
·gravity of the violation warrants assessment of a penalty of $4,000
(Tr. 121-124).
Exhibit G-2 indicates that there have been 11 prior violations of
section 75~517 at respondent's Paragon Mine. One violation occurred
in 1970 and none occurred in 1971 or 1972. In all other years between
1970 and 1977 one violation occurred except for the years 1973 and
1976 when three and fot1r violations, respectively, occurred. In 1977
one violation hti<l occurred prior to September 20, 1977, when the
instant violation occurred. The largest number of violations of section 75.517 occurred in 1976. Two had occurred by September 20, 1977,
and that is a poorer record of compljance than the Paragon Mine has
achieved for S other years prior to 1976. In such circumstances, the
penalty of $4,000 will be increased by $200 to $4,200 under the criterion of respondent's history of previous violations.
Suwnary of ~~seasments and Conclusions
(1) On the basis of all the evidence of record and the foregoing findings of f~ct, reGpondent is assessed the following civil
penalties:
Dock~t No. llOPE 78-315-P (No, 4-H UC Mine)
------------·-------·------·--··-·-...--

Notice No. 1 DTH (6-39) 11/30/76 § 75.400 ••••HW>•••• $

550.00

Total Assessments in Docket No. HOPE 78-315-P ••• $

550.00

Docket No. HOPE 78-559-P (N'J,· 4-H UG Mine)

-------·-·--------

Notice No. 1 JCH (7-7) 5/13/77

§

75.1103-4 ~ •••••••••• $ 1,000.00

Total Assessm8nts in DockHt No. HOPE 78-559-P

... $ 1,000.00

DocJ(et No. HOPE 78-560·-P (No. 4-tl UG Hine)
Order No. 1 DPC (7-35) 8/4/77 ~ 75.200 •••••·••••••••• $ 4,400.00
Total Assessments in Docket No. HOPE 78-560-P
Docket No. HOPE 78-561-P

(~o.

4-H UG Min~)

Order No. 1 JCH 0-.8) 5/13/77 § 75.400 ............... $

950.(10

Total Assessments in Docket No. HOPE 78-561-P ••• $

950.00

123

Docket No. HOPE 78-316-P (No. 5.Mine)
Order No .. 1 RAN (6-77) 11/30/76 § 75.302-1

uu.-. ....

$ 2~025.00

Total Assessments in Docket No. HOPE 78~316-P ••• $ 2,025.00
Docket No. HOPE 78-317-P (No. 5 Mine)
Notice No. 1 RAN (6-76) 11/30/76

§

75.402 ..,.,.•n••.,.n $ 2,000,00

Total Assessments in Docket No. HOPE 78-317-P ••• $ 2,000.00
Docket No. HOPE 78-562-P (MacGregor No .. 7 UG Mine)
Order No-. 1 SWG (7-88) 11/4/77 § 75.400 ••••••n••n•• $ 2,500.00
Order No. 1 SWG (7-102) 11/9/77 § 75.514 •••••••••••••

6,050.00

Order No. 1 RJW (7-103) 11/11/77 § 75.518 ••••••••••••

1,500.00

Order No. 2 RJW (7-104) llill/77

1,500.00

§

75.518

Total Assessments in Docket No. HOPE 78-562-P ... $11",550,00
Docket No. HOPE 78-563-·P (Mac~regor No-. 7 UG Mine)
Notice No. 3 OEB (7-13) 9/16/77

§

75.604

Total Assessments in Docket No. HOPE 78-563-P ••• $ 2,050.00
Docket No. HOPE 78-564-P (MacGregor No. 9 Mine)
Notice No. 3 BRS (7-32) 9/22/77

§

75.514

Total Assessments in Docket No~ HOPE 78-564-P

$ 2,0Z?~OO

$ 2,025.00

Docket No. HOPE 78-565-P (Paragon Mine)
Order No. 1 RH (7-46) 5/4/77 § 75 .. 400 ...... u.n•H••• $ 1,350.00
Order No. 1 RM (7-56) 4il4/77

§

75.400 ·••••••n·•••H••

Order No. 1 RP (7-62) 4/14/77

§

75.200

Total Assessments in Docket No. HOPE 78-565-P w•¥

124

900.00
2,100.00
$ 4,350.00

Docket No~ HOPE 78-566-P (Paragon Mine)
Order No~ 1 EW (7~129) 9/20/77 § 75.517 ••••••••••••••

$ 4,200.00

Total Assessments in Docket No. HOPE 78-566-P •••

$ 4,200.00

Total Assessments in This Proceeding

$35,100.00

(2) MSHA's Petition for Assessment of Civil Penalty filed in
Docket No .. HOPE 78-415-P should be dismissed for failure of MSHA t_o
prove that a violation of s~ction 77.205(a) existed as alleged in
Notice No. 1 NK (7-5) dated April 7, 1977.
(3) Respondent at all pertinent times was the operator of the
Amherst No. L~-·H UG Mine, the Amherst No .. 5 Mine, the MacGregor Prep.'.lration Plaht, the MacGregor No. 7 UG Mine, the MacGregor No. 9 Mine, and
the Paragon Mine and as such is subject to the provisions of the Act
and to the health and safety standards promulgated thereunder.
WHEREFORE,.it is ordered:
(A) Amherst Co,·:l Company is assessed civil penalties tctaling
$35,100.00 which it shall p::!y within 30 de!ys froni the dc.\te of this
decision.

(B) The Pctitiaa for Assessment of Civil Penalty file<l in Docket
No. HOPE 78-415-P is dismissed for the reason stated in paragrnph (2)
above.
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Ri ch n rd C~ Steffey
"
Administrative Law Judge

Dit1tribution:
Edward H. Fitch IV 1 Trial Attorney, Office af the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington,
VA 22203

Edward I. Eiland, Esq., Attorney for Amherst Coal Compan)', P.O.
Box 899, Logan, WV 25601 (Certified Mail)

125

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

April 5, 1979

JOSEPH D. CHRISTIAN,

Application for Review
Applicant

v.

Docket No. BARB 77-184

SOUTH HOPKINS COAL COMPANY,

INC.,

•

South. Hopkins No. 2 Underground
Mine

Respondent
DECISION
Appearances:

Philip G. Sunderland Esq., Washington, D. C., for
Applicant;
Carroll S. Franklin, Byron L. Hobgood, Esqs.,
Madisonville, Kentucky, for Respondent.

Before:

Administrative Law Judge Stewart
FACTUAL AND PROCEDURAL BACKGROUND

On February 16, 1977, Joseph Christian (Applicant) filed an.
application for review of discriminatory discharge by South Hopkins
Coal Company, Inc. 1his application sought relief under section
llO(b) of the Federal Coal Mine Health and Safety Act of 1969 (hereinafter, the Act), 30 u.s.c. § 820(b). 1/ Service of this application was effected on March 9, 1977. Respondent submitted its answer,
a plea of limitations, and a motion to dismiss on May 6, 1977.
1/

Section llO(b) provides as follows:
11
(1) No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against
any miner or any authorized representative of miners by reason of
the fact that such miner or representative (a) has notified. the
Secretary or his authorized representative of any alleged violation or danger, (b) has filed, instituted, or caused to be filed
or instituted any proceeding under this Act, or (c) has testified
or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this Act.
"(2) Any miner or representative of miners who believes that
he has been discharged or otherwise discriminated against by any
person in violation of paragraph (1) of this subsection may, within
thirty days after such violation occurs, apply to the Secretary for

126

On June 28, 1977, the application for review was dismissed pursuant to Respondent's plea of limitations. This order was reversed
by the Board of Mine Operations Appeals in light of an intervening
decision, Phil Baker v. The North American Coal Company, 8 IBMA 164
( 1977), which held that the 30-day filing period in section llO(b) (2)
is a statute of limitations, and not a jurisdictional prerequisite.
The Board noted·that Respondent had raised the issue of late filing
in a timely fashion and remanded the case for determination whether
Applicant had overcome this affirmative defense.

A hearing on the merits was conducted on March 1 and 2, 1978, and
again on April 26, 1978. A total of 11 witnesses were called. Applicant introduced four exhibits and Respondent introduced 12. Applicant
filed a posthearing brief on July 3, 1978. Respondent's plea of limitations and posthearing brief were filed on August 7, 1978. Applicant's final posthearing brief and reply to Respondent's plea of
fn. 1 (continued)
a review of such. alleged discharge or discrimination. A copy of
the application shall be sent to such person who shall be the
respondent. Upon receipt of such application, the Secretary shall
cause such investigation to be made, as he deems appropriate. Such
investigation shall provide an opportunity for a public hearing at
the request of any party to enable the parties to present information relating to such violation. The parties shall be given written
notice of the time and place of the hearing at least five days prior
to the hearing. Any such hearing shall be of record and shall be
subject to section 554 of title 5 of the United States Code. Upon
receiving the report of such investigation, the Secretary shall
make findings of fact. If he finds that such violation did occur,
he shall issue a decision, incorporating an order therein, requiring
the person coIIDI1itting such violation to take such .affirmative action
to abate the violation as the Secretary deems appropriate, including,
but not limited to, the rehiring or reinstatement of the miner or
representative of miners to his former position with back pay. If
he finds tL.:1t there was no such violation, he shall issue an order
denying t\
npplication. Such order shall incorporate the Secretary's fi
'.gs therein. Any order issued by the Secretary under
this pan;,.· ph shall be subject to judicial review in accordance
with section 106 of this Act. Violations by any person of paragraph (1) of this subsection shall be subject to the provisions
of sections 108 and 109(a) of this title.
"(3) Whenever an order is issued under this subsection, at
the request of the applicant, a sum equal to the aggregate amount
of all costs and expenses (including the attorney's fees) as determined by the Secretary to. have been reasonably incurred by the
applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person
committing such violation. 11

127

limitations was filed on August 21, 1978. 1be request for an opportunity .to present additional oral arguments contained therein was
denied. Applicant filed a supplemental memorandum regarding relief
on January 5, 1979. The request contained therein, that Applicant be
permitted to file documentation of costs and expenses after the issuance of a decision, was denied. On January 19, 1979, Respondent submitted its memorandum concerning relief. Applicant submitted what was
to be its final memorandum on relief on February 5, 1979. Because
this memorandum contained a great deal of information relating to fees
and expenses which was seen by Respondent for the first time, Respondent was given the opportunity to submit an additional memorandum on
relief. This memorandum was filed on March 14, 1979. Applicant submitted a final reply brief on March 23, 1979.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Joseph Christian was discharged from his employment at South
Hopkins No. 2 Underground Mine at approximately 8:30 a.m. on
November 11, 1976, at the completion of the third shift •. He was
first employed at the No. 2 Mine in August of 1975 as a bratticeman.
Early in the summer of 1976, Applicant began working as a greaser.
During his tenure as a greaser, Applicant had three supervisors. His
final supervisor, Paul Long, was his superior for approximately.
3 months, from mid-September of 1976 until his employment was terminated in November. At that time, Long was the foreman in charge of
maintenance employees.
At the start of the third shift on November 10-11, Christian was
assigned by Long to hang telephone line along 5,000 feet of the main
west belt line. Christian was to start at the '1 bottom,' 1 proceed up
through the "high place, 11 down the west supply road to the second
crosscut and through a brattice to the main west belt line (Applicant1 s Exh. No. 1). He was to proceed from there down the main west
belt line to the face areas. 1be line was to be taken off 500-foot
reels and spliced into telephones at various places along the route.
Upon receiving his assignment from Long, Christian immediately
objected, telling Mr. Long that he did not want to work by himself in
certain areas through which the phone cable was to be strung because
he felt they contained dangerously bad roof conditions. He stated
that he was especially concerned with an area of roof located along
the main west belt line one crosscut west of the north belt (hereinafter, area #5. See area marked #5 on Applicant's Exhibit No. 1), as
well as several other unspecified areas down the main west line.
Long replied that the stringing of telephone line was the only job he
had for Christian to do and that he did not have anyone to send with
Christian. Long also stated that he did not think that the top complained of was bad and that the area was better protected than anywhere else in the mine. In hopes of convincing Christian that the
top was safe, Long called James Gardner, the third shift mine foreman

128

at the No. 2 Mine, to obtain a second opinion • . Gardner told Christian
that the roof in the belt line area was not particularly unsafe. He
told Christian, however, that he would send another man down to him
later, if one could be spared. Christian then told Long that he
~ould work in the area rather than lose his job.
Long testified that he would not have fired Christian for the
refusal to work~ but that he had no other work for him to do that
shift. If Mr. Christian had persisted at the beginning of the shift
in refusing to carry out his assigned task, he would have been sent
home, thereby losing a day's wages.
Long also testified that it was unusual for him to fire a man
for doing less than was expected. He had fired three men other than
Christian. Only one of these three was discharged for failure to do
his job.
Long expected Christian to string between 2,000 and 2,500 feet
of line. In his estimation, Christian had 5 or 6 hours in which to
accomplish his task. He felt that hanging line in the bottom and in
the high place would not be more difficult or time-consuming than
doing so along the belt. Along the belt line, the telephone line
would be suspended with tape from a nail driven into a prop. In the
area from the bottom up through the brattice where props were not
continuous, the line could be suspended from roof bolts.
The usual route for miners into the west section of the mine was
the supply road, not the belt line. The belt line was regularly
traveled by beltmen and rock dusters, who worked in groups of two or
three •. In addition, the belt was inspected by a foreman every shift.
Neither Long nor Gardner examined the roof along the main west
belt line, or, more specifically, in area #5 immediately before
assuring Christian that it was safe. Both wer~ familiar with its
condition. Long estimated that he was on the belt line every other
shift. Gardner testified that he was in area #5 on a daily basis.
On the other hand, Applicant had been in the main west belt area only
once, and that several months earlier in the summer of 1976.
Long did examine the area in which Christian refused to work
later on in the shift. He did so before Christian arrived there
and satisfied himself that the roof was safe. He did not inform
Christian that he had done so.
Before he proceeded to work, Christian was told by Long to help
Richard Ford with the repair of a pinner. When Ford finished this
repair work, he was to help Christian string cable. Long told both
Ford and Christian that Christian was to help only with the installation of the hydraulic jack on the pinner. This ·particular repair

129

·could be quickly done and it was the only part of the job that
required two men. Christian understood that he was to help Ford on
the pinner and Ford was to help him string cable.
Christian began loading cable onto the supply car for transportation into the mine approximately 1 hour and 30 minutes after
receiving his assignment. At the beginning of the shift, this supply
car is used to bring rock dust and maintenance equipment into the
mine. Long testified that ordinarily the transportation of these
supplies took no more than 30 minutes. However, he did not know
whether the supply car was actually in use for 2 hours that shift
and he had no reason to believe that Christian was delaying during
this time. Christian performed no work while he was waiting.
After transporting 12 spools of cable into the mine, Christian
transferred them to a personnel carrier and took them to an area
three crosscuts inby the north belt line just off the west supply
road (Applicant's Exh. No. 6; area marked 3a). He proceeded back to
the high place looking for Richard Ford to help him repair the pinner. Since Ford was not there, Christian continued on to the bottom
and started hanging line by himself. Christian estimated that he
began stringing cable at approximnately 2 o'clock in the morning. He
strung cable from the bottom until he reached the high place at 2: 30
or 3 a.m. He met Richard Ford there and helped him work on a pinner
until 3:30 or 3:45 a.m. At that time, Don McGeehan, a third shift
welder, called the bottom and requested that somebody bring supplies
and equipment which he needed at the west end of the mine. Christian
loaded the material on the personnel carrier and transported it as
requested. He covered the three-quarters of a mile between the high
place and the west .end of the mine in 20 minutes, helped unload the
carrier and, upon request, agreed to.assist McGeehan tack a brace
onto the back end of the feeder. Christian arrived back at the high
place at 4:30 or 4:45. He and Ford continued to work on the pinner
until 5 o'clock when they broke for supper. Supper break lasted
until 5:30.
When Mr. Ford and the Applicant had nearly completed their
supper, another miner, Earl Massey, arrived at the high place. He
told the Applicant that he was supposed to help him string the phone
cable. After the Applicant finished his supper, he and Massey
decided to use the personnel carrier, which Massey then had with him,
to transfer to the first crosscut inby the North belt some of the
spools which had been stored by the Applicant earlier in the third
crosscut. However, Mr. Massey told the Applicant that first he had
to go to the west end of the mine to do an errand. Since they had
decided to transfer the spools with the personnel carrier which
Mr. Massey was to use to get to the west end of the mine, the Applicant decided to wait until Mr. Massey returned. Applicant was not
sure how long Mr. Massey would be gone, but he did not think it would
be long. Mr. Massey carried him to the place where the spools had

130

been stored and Applicant then waited for him to return. Mr. Massey
left to do his errand at about 5:45 and returned at approximately
6:15. During this half-hour period, Paul Lo~g saw the applicant
sitting on the spools of cable. Mr. Long asked him ·what he was doing
and Applicant replied that he was waiting for Mr. Massey to return
from the west part of the mine. Mr. Long said nothing further and
went on his way.
When Mr. Massey returned about 6:15, he and the Applicant
dropped their previous decision to transfer the spools and decided to
hang additional phone line instead. They therefore returned to the
point near the high place up to which the cable had already been ·hung
and began hanging more line. They took the line through the high
place, down the west supply road, under the north belt, and up to the
first crosscut where they spliced it to an existing phone. They then
continued with the line to the brattice that lay in the crosscut.
They arrived at the brattice about 7:10. At that time, miners on the
first shift had started to arrive in the first crosscut. The Applicant spent a few minutes talking with some of those miners and then,
around 7:20, proceeded to leave the mine. Cable had been strung up
to, but not intot the area of the mine which Applicant had told
Paul Long at the start of the shift that he did not want to work in
alone.
After leaving the mine on the morning of November 11, 1976,
Applicant went to the bathhouse to take a shower. Another miner,
David Cotton, approached him in the bathhouse and asked him where he
had stored the spools of phone cable. The Applicant told him where
the spools had been stored.· He also told Cotton that he thought the
top was bad in the area in which the cable was to be strung and that
he did not think that he, Cotton, should work in that area alone. He
also stated that he would not work in that area by himself because he
considered the top to be bad. Mr. Cotton subsequently expressed
fears about the top to Mr. Long.
After the Applicant had finished his shower, Paul Long came into
the bathhouse. He asked the Applicant whether he had told Cotton that
he would not work untler bad top by himself. Applicant admitted that
he had told Cotton that he had done so. Mr. Long testified that he
then asked the Applicant why he had not hung more cable during the
just-completed shift. According to Mr. Long, the Applicant said it
was because he did not want to work in the west belt entry by himself
since he felt it was dangerous due to the bad top. Mr. Long then
told the Applicant that he was fired.
Immediately after being discharged by Paul Long, the Applicant
attempted to talk to Alton Taylor, the mine superintendent. He
believed that once Mr. Taylor heard that Mr. Long had fired him for
making a complaint about and expressing reluctance to work under
unsafe conditions, he would assign him to another job. Applicant

131

could not reach Mr. Taylor at the mine on the morning of November 11.
He eventually talked.to Mr. Taylor over the phone during the evening
of November 11. Mr. Taylor, however, refused to rehire Christian and
said that if Paul Long could not use him, neither could he.
Christian did not attempt to contact the Mining Enforcement and
Safety Administration (MESA) office in Madisonville, Kentucky, until
the following Monday, 4 days after his discharge. He did not go a
mile out of his way to stop at the MESA office on his way home
Thursday, because he assumed that he would be rehired that night by
Alton. Christian testified that he did not go on Friday because he
was shaken up at being fired, nor on the weekend because he assumed
the office would be closed.
When Christian arrived at the MESA office on Monday, he spoke
with a Federal mine inspector. He told the inspector about the roof
conditions at the South Hopkins Mine that he considered to be dangerous and he discussed his discharge. He was informed by the inspector
that MESA was not involved with discharges or other personnel actions
taken by coal companies. He also made fruitless inquiries at the
Kentucky Department of Labor.
The roof along the main west belt line has more support than
other areas of the mine. Roof bolts and props are used along its
entire length. Crossbars are used in those areas with particularly
bad roof. The props were boards which were 60 inches long, 6 inches
wide, and 2 inches thick. Wedges are hammered in at the top and
bottom to bring the prop into contact with the roof. There are three
rows of props along the belt line. One row of props is situated
along the northern rib. Two more rows run down the center of the
entry, 4 feet apart. 'lllroughout most of the mine, props are set on
5- to 6-foot centers. Belt-line props, however, are set on 3-foot
centers.
The crossbars were 20-foot long, 8- by 12-inch bars which were
placed across the top and supported by props. The number and closeness of crossbars is related to the quality of the roof. 'llley are
installed at odd intervals along the belt line.
The roof along the main west belt line is comprised of shale.
This shale runs in a north-south direction. Any falls in this area
would run crosswise, rather than lengthwise. In addition, the roof
is very rough. Cracks can exist in this roof up to a depth of
one-fourth inch without it being considered bad.
Applicant was particularly concerned with the roof in area #5,
just beyond the brattice into the belt line entry. 'Ille roof in this
area was rough, containing cracks up to an inch in depth. When
tested, it was found to be drummy. It was warped and sagging. Roof
pressure was great enough to damage prop wedges. The roof was broken

132

along both ribs for a distance of 50 feet, beginning approximately
5 feet outby the crosscut which contained the brattice. Small pieces
of roof had fallen from time to time. The area was roof bolted and
contained 10 to 16 props.
There were no major roof falls along the main west belt line as
of Ap'plicant' s discharge. A minor fall did occur in August of 1977,
approximately eight to 10 crosscuts inby area #5. This fall forced a
2-hour shutdown of the belt line. Major falls had occurred prior to
November of 1976 in the north belt line. The area affected extended
200 to 300 feet up from a point 60 feet above the intersection of the
west and north belts. The north sections had been sealed off and
were no longer active at the time Christian was discharged.
South Hopkins was a nonunion mine. Christian was· not working
pursuant to a written contract. There was no organization at the
mine that represented or otherwise acted on behalf of the miners, and
there was no formal grievance procedure in effect for handling safety
reports or disputes at the No. 2 Mine in November of 1976. The document entitled "South Hopkins Coal Company Health and Safety Policy"
(Respondent's Exh. No. 7), which was issued in the summer of 1976 and
purported to reflect the company's safety policy, indicated that .the
president and safety director had responsibility.over safety-related
matters. It did not establish a formal mechanism for the reporting
of safety violations or dangerous conditions. John Campbell, the
safety director at South Hopkins, testified that before contacting
MESA, miners are expected to report safety problems to their immediate supervisors. Most questions of safety are resolved at this
level. If a dispute were to arise and the miner did not receive satisfaction from his foreman, the miner would then contact Mr. Campbell.
Mr. Campbell testified that he has never been confronted by a miner
who disagreed with management at both levels. He believed that MESA
had no role in the resolution of safety disputes until such an
impasse was reached. None of the miners who testified at the hearing
were aware of the procedure related by Mr. _Campbell.
The safety record at the No. 2 Mine appears to be quite good.
The rate of fatal and nonfatal injuries at this mine was appreciably
lower than the industry as a whole in the last two quarters of 1976
(Respondent's Exh. Nos. 8, 9).
The consensus of those individuals who worked with Christian,
both supervisors and fellow workers, was that he had a greater fear
of the top than was common. Each of Christian's supervisors felt
that his fear was unreasonable. Christian frequently commented on
roof conditions. In one of these instances, Christian was asked to
pass under top which had cracked overnight to retrieve a grease
bucket. He refused to do so, and Long retrieved it himself. On
another occasion, Christian was directed to retrieve cable from
underneath bad top.
did so protestingly, but only because he was
accompanied by another miner.

He

133

Marshall Lutz, a foreman on the second shift, was frequently
asked by Christian to come and check the roof for him. Justice Uzzle,
a timberer, testified that Christian complained abo_ut the roof more
than anyone else and that these complaints about the roof were not
always justified, however, he also testified that Christian's fear of
the top was not unreasonable. Two other witnesses for the Applicant-Oats and Littlepage--also testified that Christian's fear of the top
was not unreasonable.
The presence of a second miner can be of some value when working
under bad top. If a miner is alone and is injured, he might wait
several hours before help arrives. It is also useful to have one
miner looking at and listening to the top. Before top falls, it may
move slightly or make a popping noise, and most falls start with
chipping of rock. The condition of the roof at the time of Applicant's discharge did not present an imminent danger nor constitute a
violation of mandatory safety standards.
Each of Christian's supervisors testified that he was a poor
worker. Christian did what he was told and the quality of his work
was good, but he worked very slowly. Marshall Lutz felt that
Christian built brattices at about half the speed of his predecessor,
a man who was 55 to 60 years of age. Christian had to be helped on
occasion to catch up. Lutz testified that he had considered discharging Christian, but that he had not done so at the request of Alton
Taylor, the mine foreman. Long stated that he talked to Christian a
couple of times about failure to get work done. Both Long and Lutz
thought that Christian's slowness was at least, in part, the result of
fear of the top and laziness. Christian testified that he received
only one adverse comment on his work while at South Hopkins; in particular, Paul Long never reprimanded him. Witnesses for the Applicant
generally conceded that Christian was somewhat slow. Justice Uzzle
qualified the observation of Christian's slowness by noting that he
never saw him loafing on the job.
Plea of Limitations
Section 110(b)(2) of the Act requires that application to the
Secretary for review of alleged discrimination be made within 30 days
of the violation. 1his 30-day period is in the nature of a statute
of limitations, rather than a jurisdictional requirement. Therefore,
upon a showing of extenuating circumstances, it can be tolled or
extended. Baker v. North American Coal Company, 8 IBMA 164 (1977).
Applicant's failure to file within the sectiori llO(b) limitations period is justified by the circumstances in this ca-se. At the
time of his discharge, he was not aware that he had any rights under
the Act to challenge respondent's action. In addition, he was misled by a MESA inspector as to the existence of those rights.

134

Applicant approached two organizations which he believed would
be able to inform him of his rights--the Mining Enforcement and
Safety Administration (MESA) of the Department of the Interior and
t~e Kentucky State Department of Labor.
On Monday, November 14,
1976, approximately 4 days after his discharge, he visited the MESA
office in Madisonville, Kentucky, where he spoke with a MESA inspector. He explained to the inspector that he believed he had been
discharged ·by the South Hopkins Coal Company because of his safetyrelated complaints. Applicant asked the MESA inspector whether he
had any redress for his discharge under Federal law. The inspector
stated that the MESA office did not become involved in discharges or
other personnel actions taken by coal companies. He did not inform
the Applicant of his right to seek a review of his discharge under
section llO(b), but suggested that Applicant contact the Kentucky
Department of Labor.
On that same day, Applicant contacted by phone the Kentucky
Department of Labor in Frankfort, Kentucky. After locating an individual who could respond to his questions, Applicant explained the
circumstances of his discharge and asked whether he had any right to
challenge Respondent's action. He was informed that the Kentucky
Department of Labor had nothing to do with mining matters as they
were solely within the jurisdiction of the Federal Government.

Having exhausted the only sources of information he was aware of
and not having been informed of any means to challenge Respondent's
action, Applicant conclud_ed that he had no right or opportunity to
redress his discharge.
Applicant obtained construction work in December 1976. He
gradually became friends with a co-worker, Bill Stevens, who l1ad previously been a miner at the Peabody Coal Company's Vogue Mine. In
mid- to late January 1977, Applicant discussed his discharge with
Mr. Stevens and expressed his frustration at the absence of a means
for him to challenge it. Mr. Stevens informed him that a miner with
whom he had previously worked at the Peabody Vogue Mine, Ernest
Johnston, had challenged a similar adverse action by filing a complaint with the Department of the Interior. He suggested that the
Applicant contact Mr. Johnston.
In early February of 1977, the Applicant phoned Mr. Johnston and
arranged to meet with him at his home. They met at Mr. Johnston's
home on February 10. At that time, Mr. Johnston informed the Applicant of his right to file an application for review under section
llO(b) and explained to him what information an application should
contain and to whom it should be sent. Applicant personally pre:pared the application and filed it on February 16, 1977.
It is clear that the Applicant did not unnecessarily delay in
the filing of thi's application for review. 'llle circumstances warrant
an extension of the 30-day period.

135

'!he purpose of this 30-day limitation period is to prevent
unfairness to coal operators by preventing the revival of old claims.
There is no indication that Respondent has been prejudiced by the
late filing of the application. Respondent's assertion that the
application for review was not timely filed is rejected.
Discriminatory Discharge
The central issues presented herein are whether Christian engaged
in protected activity and whether this activity was a motivating factor in the management's decision to discharge him. Section llO(b)
of the Act, in pertinent part, provides a remedy for any discriminatory act against a miner by reason of the fact that such miner either
(a) notified the Secretary or his authorized representative of any
alleged violation or danger, or (b) filed, instituted, or caused to
be filed or instituted, any proceedings under the Act. If he invoked
, the protection of llO(b), and if his discharge was improperly motivated, Christian is entitled to reinstatement to his former position
with back pay.
In Phillips v. Interior Board of Mine Operations Aµpeals,
500 F.2d 772 (D.C. Cir. 1974), the court held that a miner 1 s
[N]otification to the foreman of possible dangers is an
essential preliminary stage in both (A) the notification to
the Secretary and (B) the institution of proceedings and
consequently brings the act into play.
Notification of a foreman does not automatically bring the miner
under the protection of the Act. Examination in each instance must
be made of "the overall remedial purpose of the statute; the practicalities of the situation * * * and particularly (of) the procedure implementing the statute actually in effect at the (mine)"
in each instance.
As noted above, notification of the foreman was recognized as
the first step in the safety report or dispute procedure in effect at
the No. 2 Mine. It was also the most practical means of registering
a safety complaint in that mine at that time. Even though this safety
complaint procedure was informal, Christian's initation of a complaint
with Long was sufficient to bring the Act into play.
In Baker v. U.S. Department of the Interior Board of Mine Operations Appeals,
F.2d
(D.C. 1978), the court held that ' 1a miner
who makes a safety complaint is protected from employer retaliation
whether or not the miner intended the complaint to reach federal officials at the time it was made." Whether Christian intended to notify
Federal officials is, therefore, no longer an issue.

136

In Munsey v. Federal Mine Safety and Health Review Commission,
F.2d
(D.C. 1978), the court held ·that it was error to impose
8"""g'Ood faith and not frivolous test for section llO(b) reports. In
this case it is clear that Christian's complaint was not frivolous.

The Act provides recourse for a miner who has been discharged
by reason of the fact of his participation in protected activities.
That is, the miner's participation in protected activity must be an
underlying factor in the discharge. By ''underlying" is meant "the
moving force but for which the discharge would not have occurred • 11
Shapiro v. Bishop Coal Company, 6 IBMA 28 at 59 (1976).
The discharge by Paul Long was motivated by a combination of
protected and unprotected activities on the Applicant's part. It is
clear that the immediate precipitating factor was Christian's failure
to complete his assigned task. However, the failure to do so was
inextricably bound up with his refusal to work in certain areas along
the main west belt line for what he perceived to be safety-related
reasons. Foreman Long had been told by Christian that he did not
complete his work because of his fear of the top. Long did not regard
this as a legitimate fear, and, therefore, discharged Christian.
Long had a number of grounds for refusing to accept Christian's
excuse of fear of the top. Among these, were Christian's reputation
for excessive fear of top, his substandard work and Long's personal
examination of the top early in the shift.
Most of those who testified at the meeting agreed that Christian
was a poor worker. The quality of his work was up to par, but his
speed was substandard. Prior to November 11, the day of the discharge, Long was dissatisfied with Christian's work. His observation of Christian on the day of discharge bore out this dissatisfaction. Not only did Christian string far less than was expected
of him, but he was observed at one point lying atop the spools of
cable.
Long also believed that Christian had an excessive, unreasonable fear of top. He felt that this fear contributed in part to
Christian's slowness. He suspected that Christian might be using
his expressed fear of top as a cover for his slowness or laziness.
Finally, Long gave little or no weight to Christian's safety
complaints on the day of discharge. He believed the top was safe
at the beginning of the shift, and a personal examination of the
area reinforced this belief.
Because of these considerations, Long failed to treat Christian
as if·a legitimate safety dispute was at issue when, in fact, one was.
'!his was evident not only in the discharge, but also in Long's earlier
activities as well. When Christian complained at the beginning of

137

the shift that the roof was bad, Long properly sought the opinion of
a more experienced foreman to alleviate Christian's fears. At the
same time, however, he also stated that he had no other work for
Christian to do, thereby inferring that Christian would be sent home
with loss of a day's pay if he persisted. The threat and subsequent
discharge were discriminatory acts improperly motivated by the
Applicant's refusal to work under what he considered to be bad roof.
Because his complaint gave use to the protection of section
llO(b) and his discharge was improperly motivated, Christian is
entitled to the relief provided for in the Act.
Relief Due
Under the provisions of 110(b)(2), the Applicant is entitled to
an order requiring Respondent "to take such affirmative action to
abate the violation as the Secretary deems approµriate, including,
but not limited to, the rehiring or reinstatement of the miner to his
former position with back pay.ii
At the time he was fired, Applicant was the greaser on the third
shift at Respondent's mine. There are no circumstances in this case
which would warrant denial of reinstatement to this position.
The back pay due Applicant is the difference between the income
he would have received if he had not been discharged by Re.spondent,
but had continued working as a third shift greaser until February 2,
1979, offset by the income he actually received, in that same period
from other sources. The cut-off date of February 2, 1979, is appropriate because the hourly wage rate received by Applicant in his
current job exceeds the hourly wage rate he would be receiving were .
he still employed by Respondent. In its supplemental memorandum
regarding relief, filed on January 19, 1979, the Respondent advanced
the figure of $48,746.37 as the amount Respondent would have earned
as a greaser from November 10, 1976 to February 2, 1979. The Applicant had no objections to this figure.
In the period from November 10, 1976, to February 2, 1979, the
Applicant received $41,523.97 in income and unemployment benefits.
Applicant has argued that two elements of the income and benefits
included in the figure should be eAcluded. The first of these elements is $470 in unemployment compensation benefits received by
Christian in February and March of 1978. After he had received these
benefits, the Kentucky Department of Human Resources determined that
he·was ineligible for them and that he was obligated to return this
sum to the State. This sum is, therefore, properly excluded from
the computation of back pay. The second of these elements is. the
$2,951.36 earned by the Applicant in February and March of 1978.
During this period, Respondent had closed down its coal mining operations because of a strike by the United Mine Workers of America. The

138

Applicant argued that because of this closure, he would have been
free to earn this income even if he had been one of Respondent's
employees. As a consequence, this $2,931.35 should not be offset
against the income he would have earned from Respondent. Because of
the absence of any indication on the record that Appli~ant would not
have been free to earn this income if he had remained in Respondent's
employ, this argument is_ accepted.
The exclusion of these two elements lowers the amount by which
Applicant's recovery of back pay is offset to $38,103.0l. Applicant
is, therefore, entitled to a recovery of back pay in the amount of
$10,643.36.
Interest
In theory, interest on each dollar of back pay should be calculated from the date on which the Applicant would have received it if
he had been employed by Respondent. Because of the great difficulty
of such a calculation, Applicant suggested a formula by which interest
would be computed on the entire back pay award from a date approximately midway between the date of discharge and the date of this
decision. Respondent did not object and did not propose an alternative. The formula proposed by the Applicant is, therefore, accepted.
Using this formula, The Applicant is entitled to interest of
$751.42. This figure represents 6 percent of the total back pay
owed, calculated from January 1, 1978, through February 28, 1979.
Medical Expenses
In its "Second Supplemental Memorandum on Relief," filed on
February 5, 1979, the Applicant asserted for the first time that he
was entitled to reinib.ursement for certain medical expenses incurred
since his discharge. As a result of the discharge, the Applicant
lost the medical insurance which Respondent provided to all its
employees. This insurance covered and paid for all medical expenses
incurred by Respondent's employee and his dependents.
The medical expenses and insurance premiums incurred by Applicant since the date of his discharge amount to a total of $441.99.
Applicant is entitled to reimbursement of these premiums and expenses
because they constitute expenses which he would not have incurre4 if
he had not been discharged in November, 1976.
Costs and Expenses of Litigation
Under the provisions of section llO(b) (3) of the Act, the Applicant is entitled to ''a sum equal to the aggregate amount of all costs
and expenses (including the attorney's fees) as determined by the
Secr~tary to have been reasonably incurred by the applicant for, or

139

in connection with, the institution and prosecution'' of these llO(b)
proceedings. Applicant is entitled, in the instant case, to the
recovery of the following three categories of expenses: attorney's
fees, the costs incurred by Applicant's attorneys and the costs
incurred directly by the Applicant.
With respect to attorney's fees, counsel for Applicant submitted
the following hourly totals, hourly rates and proposed fees:

Sunderland
Terris
Paralegals

Hours

Hourly Rate

Fees

373.50
4.50
36.00

$60
85
20

$23,640.00
382.• 50
720. 00

Given the experience and ability of Mr. Sunderland, the novelty of
the legal issues presented, and the quality of the services rendered,
the $60 hourly rate he proposes for his services is reasonable and
appropriate. Moreover, the amount of time which he devoted to the
case was well documented. lhe number of hours, the hourly rates, and
the fees proposed for the services of Mr. Terris and the paralegals,
also seem reasonable and well documented. lhe total fee proposed
by Applicant's counsel of $24,742.50 is, therefore, accepted.
The 50-percent bonus factor proposed by Applicant is inappropriate. Its application would result in an unjustifiably high,
unreasonable award for attorney's fees. lhe hourly fees proposed by
Applicant and accepted here adequately compensate his attorneys for
any risks they may have taken in pressing his claim, as well as for
the quality of their representation.
The expenses incurred by Applicant's attorneys in connection
with this case are also reasonable and well documented. They 1nclude
amounts for xeroxing, court and reporting services, messengers, telephone calls, postage, airline and local transportation, lodging and
food during long distance traveling, and secretarial overtime. lhese
expenses amounted to a total of $1,488.82.
The costs incurred directly by the Applicant amounted to a total
of $235.76. This figure includes the costs of transportation at $.10
per mile and telephone calls.
In summary, the relief due the Applicant, is as follows:
Back pay
Interest on back pay
Medical Expenses
Attorney's fees
Costs incurred by attorneys
Costs incurred directly by Applicant

140

$ 10,643.36
751.42
441-.99
24,742.50
1,488.82
235.76
$ 38,303.85

All findings of fact and conclusions of law inconsistent with
this decision are hereby rejected.
ORDER
I t is hereby ORDERED that Respondent reinstate the Applicant to
the position of greaser if he still desires to be reinstated.
It is FURTHER ORDERED that Respondent pay to the Applicant the
sum of $38,303.85 within 30 days of the date of this decision.

For.rest E. Stewart
Administrative Law Judge
Issued:

April 5, 1979

Distribution:
Philip G. Sunderland, Esq., 1526 18th Street, NW., Washington'
DC 20036 (Certified Mail)
Carroll S. Franklin, Esq., Franklin & Hobgood, 47 South Main
Street, P.O. Box 547, Madisonville, KY 42431
(Certified Mail)
Assistant Solicitor, Office of the Solicitor, MSHA, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Administrator, Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

141

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

April 5, 1979

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION 41SHA),
Petitioner

Civi.l Penalty Proceedings
Docket No. HOPE 78-422-P
A.O. No. 46-05018-02005V

v.
Docket No. HOPE 78-423-P
A.O. No. 46-05018-02006V

SIMRON FUEL COMPANY,
Respondent

Lobo No. 1 Mine
DECISIONS AND ORDER APPROVING SETTLEMENT
Appearances:

John H. O'Donnell, Trial Attorney, Office of the
Solicitor, Department of Labor, Arlington, Virginia,
for Petitioner;
Donald Lambert, Esq., Charleston, West Virginia,
for Respondent.

Before:

Judge Koutras

These proceedings concern petitions for assessment of civil penalty filed by the petitioner on May 19, 1978, pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977, seeking in
Docket No. HOPE 78-422-P, a $4,000 civil penalty assessment for a
violation of the provision of 30 CFR 75.200, cited iii section ·
l04(c)(l) Order No. 7-0007 (1 JDW), January 6, 1977, and in Docket
No. HOPE 78-423-P, a $1,500 civil penalty assessment for a violation
of the provisions of 30 CFR 75.200, cited in section 104(c)(l) Notice
No. 7-0002 (2 JDW), January 6, 1977. Petitioner has filed a motion
seeking approval of a proposed settlement, whereby respondent has
agreed to payment of a civil penalty in the amount of $2,000 in satisfaction of the violation in Docket No. HOPE 78-422-P and $800 in
satisfaction of the violation in Docket No. HOPE 78-423-P
In support of its motion for approval of the proposed settlement,
petitioner has submitted proposed findings and conclusions with
respect to the statutory criteria to be considered in the assessment
of a civil penalty for a violation of any mandatory safety standard,
and has included a detailed analysis of the factual circumstances
surrounding the alleged violations.

142

Gravity, Negligence and Good Faith
Docket No. HOPE 78-422-P
This case involves an alleged violation of 30 CFR 75.200 in that
a roof fall had occurred and had been cleaned up on the left side. of
the No. 2 belt conveyor, approximately 200 feet outby the tailpiece •.
However, no roof support had been set and the roof remained
unsupported.
Petitioner asserts that the roof fall was unintentional and the
respondent's personnel were in the process of cleaning it up and
supporting the roof and ribs when the inspector arrived on the scene.
There were still broken unsupported pieces of rock present, but petitioner maintains that such would have been cleaned up and the necessary timbering installed even if the inspector had not appeared.
Thus, according to petitioner, the primary violation was in failing
to post the cleanup plan in the area for cleaning up and supporting
where the unplanned roof fall had occurred as the approved roof
control plan requires (Govt Exh. P-3). Usually, posting of the plan
consists of copying pages 11, 12 and 13 of the roof control pan
(which is part of the plan concerned with unplanned roof falls) and
posting it in the area--even though the miners must already be thorougly familiar with the contents and requirements of that roof control
plan. 'Ille violation was nonserious according to petitioner, but it
was the result of ordinary negligence. The mine operator knew the
requirements of the roof control plan, but the foreman failed to post
the plan as required.
With respect· to a showing of good faith on the part of respondent, an order of termination (Govt. Exh. P-5) was issued on
January 7, 1977. 'Ille area had been timbered and cribbed as the
inspector required, so a normal degree of good faith was demonstrated.
Docket No. HOPE 78-423-P
This case involves an alleged violation of 30 CFR 75.200 in that
the roof at the entrance of all openings along the belt and mantrip
haulageway were not being supported with posts in various locations
from the entrance to the face area of the mine. Petitioner asserts
that there had been posts installed along the haulageway, but the
inspector considered certain places not adequate, so additional timbering was required. Petitioner asserts that the issue is ·a judgment
call between the opinion of the mine operator's experts and the
opinion of the inspector. 'Ille approved roof control plan in effect
(Govt. Exh. No. P-8 at page 5) requires that all ribs shall be ade- ·
quately supported and the inspector considers in places this was· not
done adequately. The personnel for the mine operator consider the
supports to have been adequate. If the supports were not adequate
the condition is serious, and the degree of negligence would depend
on whether the inspector's opinion was supportable.

143

With respect to a showing of good faith ori the part of respondent, Government Exhibit No. P-9 indicates that additional posts were
installed the following morning, which demonstrates a normal d.egree
of. good faith.
Size of business and effect of penalty assessment on respondent's
ability to remain in business~
Petitioner asserts that there is a limited present market for
the quality of coal produced at the Lobo No. 1 Mine, but that the
respondent can make payment for civil penalties assessed for the
two violations in question. Further, petitioner states that respondent's total coal production for 1976 was 386,685 tons and that the
mine in question produced 14,100 tons. Thus, it would appear that
respondent is a small operator and that the payment of civil penalties
approved by me in this matter will not adversely affects it ability
to continue in business.
Previous History of Violations
Petitioner has submitted a computer printout concerning respondent's prior history of violations for the period beginning January 1,
1970, and ending January 6, 1977. During this 7-year period, respondent has paid assessments for 23 violations, none of which were for
violations of 30 CFR 75.200. I cannot conclude that this constitutes
a significant prior history of violations.
In addition to its arguments concerning gravity, negligence, and
good faith, petitioner relies on what it considers to be unique
factual situations in support of the proposed settlement. Regarding
the first alleged violation in Docket No. HOPE 78-422-P, petitioner
points to the fact that the roof fall was unintentional, that tµe
respondent was in the process of cleaning up and taking corrective
action when the inspector happened on the scene, and that the crux of
the violation was the fact that a cleanup plan had not been posted in
the area, and that this was not a serious condition. As for the
second alleged violation, petitioner obviously believes that the question of proof concerning the adequacy or inadequacy of roof supports
at certain places along a haulageway which was otherwise apparently
adequately supported, would depend on the credibility of the witness
presented and that the matter is really one of ;'judgment call."
Taking· into account the fact that the respondent is a small operator,
·with an insignificant prior history of violation, petitioner believes
that the· proposed settlemen.t is reasonable. I agree.
ORDER
After careful consideration of the detailed analysis submitted
by the petitioner in support of its motion, particularly with respect

144

to the question of gravity, good faith compliance, and the respondent's size and history of prior violations, I conclude that petitioner's proposed civil penalty assessments are reasonable in the
circumstances presented. Accordingly, the settlement is approved and
respondent IS ORDERED to pay a civil penalty in the amount of $2,000
for Violation No. 7-0007, January 6, 1977, 30 CFR 75.200 (Docket· No.
HOPE 78-422-P) and $800 for Violation No.· 7-0002, January 6, 1977,
30 CFR 75.200 (Docket No. HOPE 78-423-P) within thirty (30) days of
the date of this decision and order.

Distribution:
John O'Donnell, Trial Attorney, Office of the Solicitor, MSHA
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA
22203
Donald Lambert, Esq., P.O. Box 4006, Charleston, WV 25308
(Certified Mail)
Standard Distribution

145

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

OFFICE Of ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

April 5, 1979

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

Civil Penalty Proceeding
Docket No. HOPE 77-313-P
A.O. No. 46-01659-02005V

v.
Angus No. 1 Mine
ROBINSON-PHILLIPS COAL CO.,
Respondent
DECISION AND ORDER APPROVING SETTLEMENT
Appearances:

John H. O'Donnell, Trial Attorney, Office of the
Solicitor, Department of Labor, Arlington, Virginia,
for petitioner;
Donald Lambert, Esq., Charleston, West Virginia, for
respondent.

Before:

Judge Koutras

This proceeding concerns a petition for assessment of civil penalty filed by the petitioner on September 12, 1977, pursuant to section· 109(a) of the Federal Coal Mine Heal th and Safety Act of 1969,
now section 110( a) of the 1977 Act, seeking a $1, 500 civil penalty
assessment for one alleged violation of the provisions of 30 C¥R
75.200, cited in section 104(c)(l) Notice No. 6-0043 (1 ATC),
December 20, 1976. Petitioner has filed a motion pursuant to Commission Rule 29 CFR 2700.27(d), seeking approval of a proposed settlement, whereby respondent has agreed to payment of a civil penalty in
the amount of $500 in satisfaction of the violation.
In support of its motion for approval of the proposed settlement, petitioner has submitted proposed findings- and conclusions
with respect to the statutory criteria to be considered in the
assessment of a civil penalty for a violation of any mandatory safety
standard, and a factual discussion and analysis concerning the alleged
violation.
Gravity, Negligence and Good Faith
This case involves an alleged violation on December 20, 1976, of
the provisions of 30 CFR 75.200 in that the approved roof control
plan was not being followed and the inspector observed along the

146

active shuttle car roadways overhanging ribs and rocks which he considered to be loose. According to the notice of violation, this
situation existed beginning at survey station No. 870 and through the
co°'necti_ng crosscuts to Nos. 3 and 4 entries and inby for a distance
of approximately 40 feet in each entry. The respondent insists that
the rocks and ribs were not loose and were taken down with considerable effort.
Respondent admits that as a matter of "good housekeeping 11 in the
mine, the rocks should have been taken down, but it insists there was
no danger to the miners. The roof in this mine is known as a ''hard
blue shale'' which is an excellent mine roof which does not fall
easily. The Assessment· Office Narrative Statement °CGovt. Exh.
No. P-5) notes that the miners had to bend ov'er because of the low
roof, and the mine operator at a hearing would point out that this
also means if a rock did fall from the roof it would have less distance to fall so it would do less damage than if it fell from a
greater distance. The mine crew was small that day becaus.e the
Christmas holidays were near and as a result. they had failed to do a
good housekeeping job in the mine by trinnning the overhanging rocks.
Respondent insists the condition was nonserious, however, the Office
of the Solicitor considers it serious if the rocks were, in fact,
loose. Petitioner asserts that the negligence is ordinary since.the
condition was observable and miners did pass by.
With respect to a showing of good faith on the part of respondent, a notice of abatement was issued the following day, thus indicating a normal degree of good faith.
Size of Business
Petitioner maintains that there is a limited present market for
the quality of coal produced in the Angus No. 1 Mine, but that respondent can afford to pay any reasonable civil penalty for the subject
violation without an adverse .effect on its business. Eleven miners
were employed at the Angus No. 1 Mine and the annual production for
the company, as shown by MSHA records for the year 1976, was
3,483,827 tons.
Previous History
Petitioner has submitted a computer printout concerning respondent's prior history of violations for the period Januar,y 1, 1970,
to September 20, 1976. · During this period of time, respondent has
paid assessments for 197 violations, 11 of which were for violations
of 30 CFR 75.200. For the period of time noted, including respondent's size, I cannot conclude that this constitutes a significant
prior history of violations.

147

In addition to the elements of good faith, size of the respondent's mining operation, and the prior history of violations for
which assessments have been paid, petitioner relies on the fact that
the roof conditions in the mine in question are normaily good and it
is obvious to me that if the case were to go to an evidentiary
hearing, respondent would advance the proposition that the roof
in question was not loose and that the ribs and rocks were in fact
taken down with considerable effort. Taking into account these
factors, and the fact that .the citation issued over 3 years ago and
that the proposed assessment made by the Assessment Office was computed under a "special assessment" formula, I conclude that petitioner's proposals· are reasona.ble and should be accepted.

ORDER
After careful consideration of the detailed factual and evidential analysis submitted by the petitioner in support of its motion,
particularly with respect to the question of gravity, good faith compliance, and the respondent's size and history of prior violations,
I conclude that petitioner's proposed civil penalty assessment is
reasonable in the circumstances presented. Accordingly, the settlement is approved and respondent IS ORDERED to pay a civil penalty in
the amount of $500 for Violation No. 6-0043 (1 ATC), December 20,
1976, 30 CFR 75.200, within thirty (30) days of the date of this
decision·and order.

Distribution:
John H. O'Donnell, Trial Attorney, Office of the Solicitor,
MSHA, U.S. Department of Labor, 4015 Wilson Blvd., Arlington,
VA 22203
Donald Lambert, Esq., P.O. Box 4006, Charleston, WV 25304
(Certified Mail)
Standard Distribution

148

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

OFFICE OF ADMINISTRATIVE. LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

April 5, 1979

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

Civil Penalty Proceedings
Docket No. BARB 79-3-P
A.O. No. 40-01612-03004V
Docket No. BARB 79-4-P
A.O. No. 40-01612-03005V

FIRE CREEK COAL COMPANY OF
TENNESSEE,
Respondent

Docket No. BARB 79-57-P
A.O. No. 40-01612-03001
Docket No. BARB 79-58-P
A.O. No. 40-01612-03002
Docket No. BARB 79-59-P
A.O. No. 40-01612-03003V
Fire Creek No. 1 Mine

DECISIONS
Appearances:

Edward H. Fitch, Trial Attorney, Department of Labor,
Office of the Solicitor, Arlington, Virginia, for the
petitioner;
Michael R. Kizerian, Vice President, Fire Creek Coal
Company, Knoxville, Tennessee, for the respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern petitions for assessment of civil penal ties filed by the petitioner against the respondent in October 1978,
pursuant to section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 820(a), charging the respondent with a total of
27 alleged mine safety violations issued pursuant to the Act and
implementing safety standards. Respondent filed timely answers in
the proceedings and requested a hearing regarding the proposed civil
penal ties initially assessed for the alleged violations. Respondent
asserted that due to its adverse financial and economic condition,

149

payment of the assessed penalties would directly affect its ability
to continue in business. A hearing was held in Knoxville, Tenn~ssee,
on February 27, 1979.
Issues
The issues presented in these proceedings are (1) whether respondent has violated the provisions of the Act and implementing regulations as alleged in the petitions for assessment of civil penalties
filed in these proceedings, and, if so, (2) the appropriate civil
penalties that should be assessed against the respondent for each
alleged violation, based upon the criteria set forth in section
110( i) of the AcL

a

In determining the amount of
civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:
(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator,
(3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Coal Mine Health and Safety Act of 1969,
30 u.s.c. § 801 et seq., now the Federal Mine Safety and Health Act
of 1977, P.L. 95".:"164;-effective March 9, 1978.
§§

2. Sections 109(a)(l) and (a)(3) of the 1969 Act, 30 u.s.c.
819( a)( 1) and (a)(3), now section 110( i) of the 1977 Act.
Discussion

The alleged violations and applicable mandatory safety standards
in issue in these proceedings are as follows:
Docket No. BARB 79-3-P
Section 104(d)(l) Citation No. 140809 issued at 9:25 a.m. on
March 15, 1978, cites a violation of 30 CFR 75.302-1, and states as
follows:
Line brattice used to provide face ventilation was not
installed continuously to within 10 feet of the working face
of the No. 3 entry in working section 001, where coal was
being mined with a continuous mining machine. The No. 3
entry working place had been developed approximately
100 feet inby the last open crosscut and no line brattice
installed.

150

'!he notice was terminated at 10: 05 a .m., the same day it issued
after the installation of the required line brattice to within 10 feet
of the working face.
Docket No. BARB 79-4-P
Section 104(d)(2) Order No. 140845, issued at 9:10 a.m., April 7,
1978, cites a violation of 30 CFR 75.301, and states as follows:
1he active workings of the coal mine were not ventilated while miners were working underground in that the
main fan was not operating and miners were working underground in No. 1 entry working place removing a fall of
roof.
'Ihe order was terminated at 9:15 a.m•, the same day it issued
after the main fan was placed in operation.

Secti~n 104(d)(2) Order No. 140849, issued at 10 a.m., April 7,
1978, cites a violation of 30 CFR 75.301, and states as follows:
Face ventilation was not provided in the Nos. 2, 3, 4,
and 5 entry working places in the 001 working section m
that ventilation was short circuited at the last open crosscuts. The above-mentioned working places were developed
approximately 100 feet inby the last open crosscuts where
the ventilation was short circuited.
Section 104(d)(2) Order No. 140850, issued at 10:15 a.m., April 7,
1978, cites a violation of 30 CFR 75.302 and states as follows:
Line brattices were not used continuously from the
last open crosscut to the faces of the Nos. 2, 3 and 4
entries in that these working places in 001 working section were developed approximately 100 feet inby crosscuts
and no line brattice installed. '!he inby end of line
brattices in No. 5 entry was 50 feet from the face and
coal had been mined from the working places.
Section 104(d)(2) Order No. 140851, issued at 10:30 a.m., April 7,
1978, cites a violation of 30 CFR 75.303(a), and states as follows:
A preshift examination of the mine had not been made
prior to miners entering the underground area of the mine.
A record was not made of preshift examinations since
3-27-78 and dates, times and initials were not in working
places. The certified person at the mine stated he had
not made an examination and did not know of anyone else
making examinations.

151

Citations 140849, 140850, and 140851 were all terminated on
April 10, 1978, after abatement of the conditions cited.
Docket No. BARB 79-58-P
Section 104(a) Citation 140853, issued at 8 a.m., April 10, 1978,
cites a violation of section 103(d) of the Act, and states as follows:
An unintentional roof fall had occurred in the No. 3
entry working place of 001 working section and the operator
had not made an investigation of the fall, made a written
record or notified the District Office of Coal Mine Safety.

The citation was terminated on April 17, 1978, after abatement of
the cited condition.
Docket No. BARB 79-59-P
Section 104(d)(l) Citation No. 140808, issued at 9:20 a.m.,
March 15, 1978, cites a violation of 30 CFR 75.301-1, and states as
follows:
Face ventilation was not provided in the No. 3 heading working place in 001 working section where coal was
being mined with a continuous mining machine. Ventilating
devices were not installed in the working place and coal
was being mined 100 feet inby the last open crosscut. The
section foreman was operating a mine tractor and had just
brought a load of coal to surface.
The citation was terminated at 10:05 a.m., the same day it issued
after abatement of the condition cited.
Docket No. BARB 79-57-P
This docket concerns a total of 20 section 104(a) citations
issued by Federal mine inspector Harrison R. Boston as follows:
March 15, 1978
Citation No. 140810, 30 CFR 75.303(a), failure to make an adequate preshift examination.
Citation No. 140811, 30 CFR 75.301, failure to provide face
ventilation in four entries in the 001 working section, and failure
to provide line brattice or other ventilation devices.
Citation No. 140812, 30 CFR 75.302; failure to use line brattice
or other approved ventilation devices to provide ventilation to working places in the 001 working section.

152

Citation No. 140813, 30 CFR 75.316, failure to install permanent stoppings in the third crosscut outby the working face in the
001. working section as required by the approved mine ventilation
system and methane and dust control plan.
Citation No. 140814, 30 CFR 75.503, failure to maintain a tractor in permissible condition by failing to provide padlocks for the
battery receptacles, and failing to secure battery cover lids as
required by schedule 2-G.
Citation No. 140815, 30 CFR 75.503, failure to maintain a scoop
in permissible condition by failing to provide padlocks for the
battery receptacles, and failing to secure battery cover lids as
required by schedule 2-G.
Citation No. 140816, 30 CFR 75.202, failure to support roof at
the 001 section rectifier station for a width of 8 feet and a distance
of 18 feet directly around the rectifier. Posts had been installed,
but were taken out to install the rectifier.
Citation No. 140817, 30 CFR 75.523-1, inoperative deenergization
switch on a roof-bolting machine.
Citation No. 140818, 30 CFR 75.523-2(c), inoperative deenergization activating bar on a continuous mining machine.
March 16, 1978
Citation No. 140819, 30 CFR 75.316; failure to supplement the
mine ventilation system and methane a~d dust control plan by failing
to submit required mine maps and other required information.
Citation No. 140820, 30 CFR 75.1704-2(d), failure to post a map
of the 001 working section escapeway.
Citation No. 140821, 30 CFR 75.1100-2(d), failure to provide a
portable fire extinguisher for the mine tractor, serial No. 270A-509,
used to pull loaded coal cars from the 001 working section.
Citation No. 140822, 30 CFR 75.1100-2(d), failure to provide a
portable fire extinguisher for mine tractor, serial No. 270A-510.
Citation No. 140823, 30 CFR 75.307-1, failure to conduct a
methane examination at the face of the No. 5 entry working place in
the 001 working section prior to the entrance of an electricallyoperated roof-bolting machine.
Citation No. 140824, 30 CFR 75.503, failure to maintain the
scoop, serial No. 482-1022, used inby the last open crosscut in the
001 working ·Se~tion in a permissible condition in that the headlights
were inoperative.

153

April 7, 1978
Citation No. 140843, 30 CFR 75.1600-1, failure to provide a
responsible person on duty at the surface communication facility to
answer communications from three miners who were underground.
Citation No. 140844, 30 CFR 75.1713, failure to provide an
emergency communications system to the nearest point of medical
assistance.
Citation No. 140847, 30 CFR 75.503, inoperative headlights and
lack of padlocks o.n the Uni track scoop and scoop battery receptacle.
Citation No. 140848, 30 CFR 75..200, failure to submit a plan
detailing cleanup and support procedures concerning a roof fall as
required by the approved roof-control plan of May 20, 1977, page 7,
item 19.
Citation No. 140852, 30 CFR 75.300-4, failure to maintain a
record of the daily fan examination, the last recorded date being
March 27, 1978.
Findings and Conclusions
Fact of Violations
Respondent did not contest any of the citations issued in these
cases, and except for a few comments and observations made during the
course of the hearing, did not rebut any of the citations and candidly
a9mitted that he was responsible for them (Tr. 18-21). In the circumslances, I find that petitioner has established the fact of violation
as to each of the citations issued in these proceedings.
Gravity
Except for Citation No. 140817 (Docket BARB No. 79-57-P), concerning a roof-bolting machine deenergization device, petitioner
stipulated that all of the remaining citations issued in these proceedings were in the moderate to low range of seriousness. and that
the inspector who issued the citations did not believe that any of
the citations were of "great severity'' (Tr. 10-11, 23). Petitioner
also pointed out that the mine is only developed some 500 feet high
on a mountain, thereby eliminating any real ventilation problems,
and no methane has ever been detected (Tr. 10).
After careful review of the evidence adduced, including copies
of the citations issued by the inspector, I conclude and find that all
of the violations cited in these proceedings were serious.

154

Negligence
Petitioner stipulated that except for the section 104(d) orders,
all of the other violations in these cases resulted from ordinary
n.egligence on the part of the respondent: (Tr o 12). Petitioner takes
the position that the section 104(d) orders resulted from gross
negligence on the part of the respondent (Tr. 12). Respondent conceded that both he and the persons hired to manage the mine should
have been aware of the conditions cited, and he conceded that failure
to correct the conditions cited constituted ordinary negli~ence
(Tr. 22). Aside from the fact that the section 104(d) orders were
issued, petitioner has presented no evidence or testimony supporting
the assertion that the violations resulted from gross negligence. I
find nothing in the record to support a conclusion that respondent
deliberately and recklessly disregarded the safety standards cited.
He candidly admitted that as the mine operator, he was responsible,
along with the hired mine manager, for the safe ope~ation of the
mine. However, the manager is no longer employed by the respondent,
and petitioner agrees that marked improvements have been made in the
operation of the mine. In the circumstances, I find that all of
the violations resulted from ordinary negligence on respondent's
part and the conditions cited were conditions which respondent
admits he should have been aware of and should have corrected.
Good Faith Compliance
The present mine operator took over,. the operation and ownership
of the mine in May 1977, and he instituted changes in the mine' s
management, including replacing the prior mine manager. Petitioner
agrees that the respondent has taken steps to improve its mining practices to insure that the mine is operated safely, and that prior to
taking over the mine, the present owners had no previous mining experience and had to rely on its prior manager who has since left the
employ of the company (Tr. 65-66, 68). As for the citations in question in these proceedings, the record supports a finding that they
were timely abated and that respondent exercised n9rmal good faith in
abating the condition's once the conditions were brought to his attention. The parties stipulated that all of the cita'tions issued in
these proceedings were timely abated and that the respondent exercised good faith in correcting the conditions once they were brought
to his attention (Tr. 21), and this is supported by statements made
by counsel on the record with respect to conversations he had with
MSHA mine inspector Harrison R. Boston, the inspector who issued all
of the citations and orders in these proceedings.
History of Prior Violations
Petitioner has submitted a computer printout reflecting respondent's prior history of violations. That document reflects that
75 violations were issued for the. period May 20, 1977, to March 12,

155

· 1979, and that. respondent has made payment for 26 violations during
that period of time. Petitioner asserts that this reflects a moderate
history of previous violations, and I agree and adopt that proposed
·finding as my finding on this issue.
Size of Business and Effect of Penalties Assessed on Respbndent's
Ability to Continue in Business
The evidence adduced in these proceedings reflects that the present mine owners took over the operation of the mine on May 20, 1977,
and that total mine production since that time amounts to some
15,000 tons of coal (Tr. 29,·Exh. R-5). Copies of an MSHA quarterly
mine employment and coal production reports reflect that the 1978
mine production was 7,620 tons, and that mine employment was seven
workers underground and three workers on the surface, with a seasonal
employment for 3 months of 53 employees (Exh. R-8). The mine was shut
down for 3 months from July to November 1978, and this was corroborated by petitioner (Tr. 36). The mine presently employs seven miners,
and during the time the violations issued, employed 9 to 10 full time
miners (Tr. 47). The mine is a nonunion drift mining operation using
a conventional miner, and petitioner stipulated that the mine is a
very small mining operation which at one· time was being improperly
supervised, but which appears to be on its way to functioning much
safer with the individuals now operating it.

The initial assessments made in these cases by MSHA' s Office of
Assessments did not take into consideration the financial plight of
respondent's mining operations (Tr. 13-14). At the hearing in this
matter, respondent (Michael Kizerian) submitted detailed documentary
evidence concerning the financial condition of the company. Included
are copies of financial statements for the year ending June 30, 1978,
billings from creditors, checkbook bank records indicating deposits
and payments made on the company account, bank statements, State of
Tennessee Department of Revenue and Taxation records indicating
state severance taxes paid for coal produced by the respondent's mine,
and State and local sales and use tax returns (Exhs. R-1 through
R-6).
The testimony and evidence adduced by the respondent in these
proceedings reflects that for the initial 13 or 14 months of its
operation, the mine lost $277,898.47, and that as of February 1979,
respondent has outstanding debts in terms of accounts payable in the
amount of $70,206.37, and which do not include a price adjustment
penalty levied on the respondent by the TVA charging respondent's
account for $8, 587. 05 for failure to guarantee the dry ash content of
its product. Respondent testified that he is concerned over the fact
that he cannot meet his expenses since he wants to pay his bills.
However, he stated that one of the reasons tqat he did not contest
the violations cited against him is the fact that he is on the verge

156

of going out of business, that he is operating from week-to-week with
some $70,000 in outstanding debts, and that one major breakdown at
the mine will place his operation in jeopardy (Tr. 58-59).
The Fire Creek Coal Company is a mtning venture and wholly owned
subsidiary of Real Estate West, an investment company operated by
Mr. Kizerian's father in Utah. Mr~ Kizerian was hired by his father
to operate the 'coal mining venture known as Fire. Creek Coal Company,
and he is compensated by the coal company (Tr. 51-56). Real Estate
West is not in the primary business of mining coal, and petitioner
suggested that absent any evidence to the contrary, the question of
the amount of civil penalties which should be assessed for the violations in question in these proceedings should be directed toward
the operations of Fire Creek Coal Company and its ability t~ remain
in the coal mining business (Tr. 56).
Petitioner has filed posthearing arguments concerning the
financial condition of the respondent, including an analysis of the
documentary evidence concerning this issue. Petitioner asserts that
the information submitted supports a finding that payment of normally
reasonable fines for the violations would, in fact, have an adverse
effect on the respondent's ability to remain in the business of mining coal. In support of this conclusion, petitioner argues that the
controlling company here, Real Estate West, has been heavily subsidizing this coal mining venture, and that the records indicate that the
current payable liabilities are in excess of $48,000 and that long
term debt to Real Estate West is in excess of $400,000. Petitioner
submits that civil penalties in the aggregate of $2,000 will not
cause the respondent to go out of business, and that petitioner is
agreeable to a schedule of up to four payments for the respondent to
pay whatever penalties are assessed in the matter.
In Robert G. Lawson Coal Company, 1 IBMA 115, 117-118 (1972),
the former Board of Mine Operations Appeals made the following
observations:
We view the provisions of section 109(a)(l) as manifesting an intent by Congress to require a balancing
process in arriving at an appropriate penalty to be
assessed in any given case. Application of the criteria
of section 109(a)(l) requires weighing the importance of
imposing pecuniary penal ties, as a measure of deterring
insufficient concern for the health and safety of miners,
against other deterrents specified in the Act, such as
closure orders. 1he amount of a monetary penalty imposed
should be sufficiently high .to deter any laxity of vigilance on the part of·an operator to keep his mine in
compliance with the Act •. In our view, however, the
imposition of a penalty which would cripple an operator's

157

ability to continue his production of coal without a
counter-balancing benefit to the safety of miners would
not be appropriate.
We do not view the civil penalty assessment procedure
as a tool to force closure of mines; we look upon it as
an auxiliary tool to bring about compliance. 1he Act
contains several enforcement provisions permitting the
closure of mines to protect the health and safety of
miners. We believe that the intent of Congress was to
give the Secretary great latitude in the assessment of
monetary penal ties so as to permit him to weight the
equities and render justice on a case-by-case basis. Of
course, in doing so we must be particulary conscious of
two of the statutory criteria--the size of the operator's
business and the effect of a penalty on the operator's
ability to continue in business. 1he most severe penalty
authorized by the Act is mine closure with its consequent
loss of production, idlement of miners, and impact upon
both the operator and the public. We believe Congress
intended a balanced consideration of all statutory
factors, including the size of mine and the ability to
remain in business, to permit assessments which would be
equitable and just in all situations but which would not
have the effect of drastically curtailing· coal production
or employment of miners to the ultimate detriment of the
public interest.
Where numerous violations are found and cited during a
tour of inspection, the aggregate amount of the proposed
assessments, even though each separate violation may be
assessed at a nominal value, may be an amount beyond the
operator's ability to pay, and thus, for no other reason
than this, may be unreasonable. In such cases it is
incumbent upon an Examiner and this Board to look at the
total amount and impact of the monteary penalty in arriving at a fair assessment.
1he Board followed its Lawson Coal reasoning with respect to the
question of the effect of civil penalties on small operators in two
subsequent decisions, Newsome Brothers, Inc., 1 IBMA 190 (1972), and
Hall Coal Company, 1 IBMA 175 (1972). In Hall, the Board al so ruled
that in addition to the six statutory criteria, a civil penalty may
also be mitigated by the fact that the infraction was a first offense,
committed shortly after the effective date of the Act, by a small
operator who demonstrated good faith by immediate abatement. The
Board also observed that there is a presumption that such an operator
will not be affected adversely by the imposition of a sizeable civil
penalty, but that it is incumbent upon the operator to present .evidence of an adverse effect of a monetary penalty upon his mining
operation.

158

After careful review of all of the evidence.adduced in these
proceedings, I am in agreement with petitioner's proposed finding that
the imposition of the initial civil penalty assessments recommended
in these dockets, would in the aggregate, effectively put respondent
out of business. Having viewed respondent's chief witness on the
stand during the course of the hearing, I find he is a candid and
honest individual. He voluntarily produced his company financial
records, incl ud_ing bank statements, ledgers, tax returns, operating
expenses, income statements, etc., and I find his testimony to be
credible. Considering the fact that the respondent is a very small
operator and is in serious financial difficulties, as attested to by
the evidence adduced herein, I find that the proposed civil penalties
in the total amount of $8,830 could jeopardize respondent's ability
to remain in business. I therefore conclude that the circumstances
presented justifies mitigation of the initial assessments made in
these proceedings, and should be considered by me in assessing
appropriate penalties.
In view of the foregoing findings and conclusions, respondent is
assessed civil penalties for the violations which have been. established as follows:
Docket No. BARB 79-3-P
Citation No.

Date

140809

03/15/78

30 CFR Standard
75.302-1

Assessment
$150

Docket No. BARB 79-4-P
Citation No.

Date

30 CFR Standard

Assessment

140845
140849
140850
140851

04/07/78
04/07/78
04/07/78
04/07/78

75.301
75.301
75.302
75.303(a)

$350
300
300
100

30 CFR Standard

Assessment

Docket No. BARB 79-58-P
Citation No.

Date

140808

03/15/78

75.301-1

$ 80

Docket No. BARB 79-57-P
Citation No.

Date

30 CFR Standard

Assessment

140810
140811
140812

03/15/78
03/15/78
03/15/78

75.303(a)
75. 301
75.302

$ 60
100
50

•
159

140813
140&14
140815
140816
140817
140818
140819
140820
140821
140822
140823
140824
140843
140844
140847
140848
140852

03/15/78
03/15/78
03/15/78
03/15/78
03/15/78
03/ 15/78
03/16/78
03/16/78
03/16/78
03/16/78
03/16/78
03/16/78
04/07/78
04/07 /78
04/07 /78
04/07/78
04/07 /78

15. 316

75.503
75.503
75.202
75. 52T-l
75.523-2(c)
75. 316
75.1704-2(d)
75.1100-2(d)
75.1100-2(d)
75.307-1
75.503
75.1600-1
75.1713
75.503
75.200
75.300-4

40
20
20
50
75
35
20
15
20
20
25
20
25
25
30
50
20

ORDER
Respondent is ORDERED to pay the civil penalties assessed herein,
in the amount of $2,009, within thirty (30) days of this order, or
within a mutually agreeable time schedule which may be negotiated with
the petitioner.

Distribution:
Ned Fitch, Trial Attorney, Office of the Solicitor, Mine Safety
and Heal th Administration, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
Michael R. Kizerian, Vice President, Fire Creek Coal Company
of Tennessee, 510 Canberry Drive, Knoxville, Tn 37919
(Certified Mail)
Standard Distribution

160

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

April 5, 1979

Civil Penalty Proceeding

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

Docket No- DENV 78-566-PM
A.O. No. 02-01843-05001
Don Luis Pit Mine

A. J., GILBERT CONSTRUCTION CO.,
Respondent

•

DECISION
Appearances:

Marshall P. Salzman, Trial Attorney, Office of the
Solicitor, u.s. Department of Labor, San Francisco,
California, for the petitioner;
A. J~ Gilbert III, Bizbee, Arizona, for the
respondent.

Before:

Judge Koutras
Statement of the Proceeding

This proceeding concerns a petition for assessment of civil
penalties filed by the petitioner against the respondent pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.SwC. § 820(a), on September 21, 1978, charging the respondent
with two alleged violations of the Act and implementing mandatory
safety standards. Respondent filed a notice of contest and requested
an opportunity for a hearing in the matter. A hearing was conducted
in Tucson, Arizona, on March 6, 1979, the parties ,appeared and participated therein, and waived the filing of posthearing proposed
findings and conclusions.
·
Issues
The issues presented in this proceeding are (1) whether respondent has violated the provisions of the Act and implementing regulations as alleged in the petition for assessment of civil penalty
filed in this proceeding, and, if so, (2) the appropriate civil penalty that should be assessed against the respondent for the alleged
violations based upon the criteria set forth in section llO(i) of
the Act ..

161

In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:
(1) t~e operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator,
(3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1.

The Mine Safety and Health Act of 1977·,. 30 u.s.c. § 820(a)

~~·

•

2.

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

3. Part 2700, Title 29, Code of Federal Regulations, 43 Fed Reg.
10320 et~· (March 10, 1978), the applicable rules and procedures
concerning mine health and safety hearings~
DISCUSSION
Section 104(b) Citation No~ 376649, dated June 15, 1978, cites
a violation of 30 CFR 56.9-87, and states as follows: "The backup
warning device on the 14 front-end loader was not working. This
loader was being operated in and around the plant area in a backward
as much as a forward operation."
30 CFR 56.9-87 provides:
Mandatory. Heavy duty mobile equipment shall be
provided with audible warning'devices.- When the operator
of such equipment has an obstructed view to the rear, the
equipment shall have either an automatic reverse signal
alarm which is audible above the surrounding noise level
or an observer to signal when it is safe to back up.
The inspector fixed the abatement time as 3 p.m~, June 15, 1978,
and the termination notice reflects that the condition cited was
abated at 1 p.m. on June 15, after a new backup signal was installed.
Section 104(a) Citation No~ 376650, dated June 15, 1978, cites a
violation of 30 CFR 56.11-2, and states as follows: "The elevated
walkway along the crusher above the flywheel that employees use to get
to the screen was not provided with handrails."
30 CFR 56.11-2, provides: '~andatory, crossovers, ele~ated
walkways, elevated ramps, and stairways shall be of substantial construction provided with handrails, and maintained in good condition.
Where necessary, toeboards shall be provided."

162

The inspector fixed the abatement time as 7 a.m., June 15, 1978,
and the termination notice reflects that the condition was abated at
noon time, June 15, after handrails were manufactured and installed
during lunch.
Stipulations
The parties stipulated to the following:
1. Respondent is subject to the jurisdiction of the Act and
the Administrative Law Judge (Tr. 6).
2. Respondent is a small operator and the initial proposed
civil penalties, if finalized and levied, will not adversely affect
respondent's ability to remain in business (Tr. 5).
3.

Respondent has no prior history of violations (Tr. 6).

4. The conditions cited were abated within the time fixed by
the inspector who issued the citations (Tr. 6).
Testimony and Evidence Adduced by Petitioner
MSHA inspector Robert M. Hunter confirmed that he conducted an
inspection at the mine in question on June 15, 1978, and that he
issued the two citations in issue in this proceeding. He described
the mining operation conducted by the respondent, and indicated that
it is a surface operation entailing the removal of overburden and the
mining of silica.
With regard to the ~itation concerning the inoperative backup
alarm on the front-end loader, inspector Hunter testified that he
observed the loader in operation, that it operated in a backward
motion 50 percent of the time, and forward for 50 percent of the time.
The operator had obstructed vision when backing up, and this was due
to the physical configuration of _the loader. Although he observed no
one in close proximity to the machine while it was in operation, since
the machine was backing up for a distance of some 200 to 300 feet
without an operative backup alarm, he considered the violation to be
serious. He also believed that the mine foreman should have been
aware of the condition cited because the loader was in operation and
the lack of an operative audible alarm was readily apparent. Once
the condition was called to the attention of the operator, the loader
was immediately taken out. of service, taken to the shop, and the
condition was corrected before the time fixed for abatement. Under
the circumstances, he believed the operator abated the condition
rapidly and exercised good faith in this regard (Tr. 10-15).
Regarding the handrail violation, Inspector Hunter testified
that the elevated walkway in question was approximately 5 feet long,

163.

18 to 24 inches wide, and some 15. feet from the ground. Normally,
one employee would use the walkway, but on the day in question he
observed two employees using it. He believed the lack of a handrail
was serious because an employee using the wa}kway .could slip and fall
to the ground sustaining injuries or possible deathw Since the walkway was elevated and employees used it, the operator should have been
aware of the requirement that it be provided with a handrailw He
indicated that the condition was rapidly abated and that the operator
immediate called a welder and had a handrail installed immediately
during the lunch hour on the day the citation issued (Tr. 20-28).
Inspector Hunter testified that inspections at the respondent's
operation began in March 1978, and that respondent has had no previous
citations. He also indicated that the respondent is aware of the
need to conduct a safe operation, is cooperative, and has made a good
faith effort to comply with all applicable safety regulations.
Testimony Adduced by the Respondent

A. J. Gilbert III, respondent's vice-president, testified that
his company is a small operation engaged in a crushed stone operation
in Bisbee, Arizona, and that the operation includes the mining of
silica and silica flux which is processed and sold to several smelters
in the state. He stated that his company employs four to six permanent employees, but has had as many as thirty on the payroll on a searsonal basis, depending on existing work demands and contracts for the
sale of his products.
Regarding the citations in question, Mr. Gilbert candidly conceded that mine management should have been aware of the conditions
cited. However, he stated that he does. not employ a safety director,
and due to the fact that the law in question is new and that his
operation is also inspected by state inspectors, he is not as fully
informed as he should be with regard to all of the Federal requirements of the Act. He also indicated that he has always welcomed
Federal inspectors since they do present an opportunity for him to be
advised as to what the requirements are, and that he is aware of the
importance of insuring a safe working environment for his operations
(Tr. 30-32).
Regarding the audible alarm citation, Mr. Gilbert stated that
while he was not present at the time the citation issued, he did not
believe that the distance allegedly backed up by the loader was 300 to
400 feet as testified to by the inspector was accurate. He believed
the distance was less than 300 feet. He also indicated that in the usual
normal course of loading operations, the loader operator will
only backup for a short distance and then travel in a forward direction along a regular route which is known by all of the employees at
the site. He also indicated that the loader operator is an experienced worker and that these factors mitigate the seriousness of the
violation (Tr. 16-18).

164

With respect to the lack of a handrail at the crusher,
Mr. Gilbert testified that the walkway is elevated some 9 to 10 feet
and that due to the fact that a new protective cage had recently been
installed around the crusher, employees who were required to be in
the area had to travel around the walkway, and that this was not
usually a normal practice. He conceded that the walkway was elevated
and that a handrail should have been installed_ to prevent one from
falling to the ground and possibly sustaining injuries and that the
failure to install a handrail was an over sight which apparently had
not been considered at the time the work was performed on the crusher
(Tr. 32).

Findings and Conclusions
Fact of Violations
Respondent did not rebut the conditions cited by Inspector Hunter,
and stipulated that·the citations were duly served by l:ir. Hunter in
his capacity as an authorized representative of the Secretary. I
find that the testimony and evidence adduced by the petitioner supports a finding that the conditions cited were in fact present on·the
day in question and that they constitute violations of the mandatory
safety standards cited in Citation Nos~ 376649 and 376650 as issued
by Inspector Hunter on June 15, 1978~
Negligence
I find that the respondent knew or should have known ·of the
conditions cited and that it failed to exercise reasonable care to
prevent the conditions leading to the two violations. Under the
circumstances, I conclude that this constitutes ordinary negligence.
Gravity
Although the inspector testified that no employees were within
close proximity of the loader, and that the chances of an accident
were slim, the fact is that he did observe a helper in the area
where the loader was operating (Tr. 20), observed the loader back
up for some distance, and he indicated that the loader operated
had an obstructed view to the rear. In the circumstances, I find
that the violation (376649) was serious~
Regarding the handrail citation (376650), I find that the 18 to
24 inches walkway elevated some .10 to 15 feet off the ground without
a handrail presented a serious falling hazard to the men who used it.
Accordingly, I find the violation was serious.
Good Faith Abatement
I find that the respondent abated the conditions rapidly and in
good faith ..

165

Size of Business and Effect of Penalty on Respondent's Ability to
Remain in Business
The parties stipulated that respondent is a small operator and
I adopt this as my finding. I also find that the penalties assessed
by me in this matter will not adversely affect respondent's ability
to remain in busines~.
Penalty Assessments
It is clear from the evidence presented in this case that the
respondent violated the two safety standards cited. While the violations were serious and were caused by the respondent's ordinary
negligence, the evidence also establishe.s that the respondent is a
very small operator, has no prior history of violations, and abated
the conditions rapidly. With regard to the handrail citation,
respondent took extraordinary measures to achieve abatement in the
shortest possible time. In the circumstances, I find and conclude
that that the penalties initially assessed in this proceeding are
appropriate and they are affirmed and adopted as my civil penalty .
assessments for the two citations namely $48 for Citation No. 376649
and $56 for Citation No. 376650.
ORDER
Respondent is ordered to pay the penalties assessed, in the
amount of $104 within thirty (30) days of the date of this order.

~
d 1-;('~._p:--·
~.·~
:#~ j;l{outrls-~

.v

Administrative Law Judge
Distribution:
Marshall P. Salzman, Trial Attorney, Office of the Regional
Solicitor, U.S. Department of Labor, 10404 Federal,
450 Golden Gate Avenue, Box 36017, San Francisco, CA
94102 (Certified Mail)
A. J. Gilbert III., A. J. Gilbert Construction Co., P.O.
Box 5288, Bisbee, AZ 85603 (Certified Mail)
Standard Distribution

166

FEDERAL .MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE Of ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLmGTON, VIRGINIA 22203

April 5, 1979

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

Civil Penalty Proceedings
Docket No .. DENV 78-359-P
A/O No. 14-01116-02005 V
Docket No .. DENV 78-437-P
A/O No~ 14-01116-02007 V

BILL'S COAL COMPANY, INC .. ,
Respondent

...

Docket No.. DENV 78-438-P
A/O No .. 14-01116-02006 V
Docket No .. DENV 78-493-P
A/O No .. 14-01116-02009 V
Fort Scott Strip Mine
Docket No.. DENV 78-439-P
A/O No.. 14-01230-02002 V
Fulton Strip Mine

DECISION
Appearances:

Judith N.. Macaluso, Esq .. , Office of the Solicitor,
Mine Safety and Health Administration, u.. s .. Department of Labor, on behalf of the Petitioner;
o.. B.. Johnston III, Esq .. , and Donald Switzer, Esq .. ,
Vinita, Oklahoma, on behalf of the Respondent ..

Before:

Administrative Law Judge Stewart
FACTUAL AND PROCEDURAL BACKGROUND

The above-captioned cases are civil penalty proceedings brought
pursuant to section 109 l/ of the Federal Coal Mine Health and Safety
];_/

Section 109(a)(l) of the Act reads as follows:
"The operator.of a coal mine in which a violation occurs of a
mandatory health or safety standard * * * shall be assessed a civil
penalty by the Secretary under paragraph (3) of this subsection which

167

Act of 1969, 30 u.s.c~ § 819 (1970)i hereinafter referred to as the
Act.
Petitioner filed a petition for assessment of civil penalty in
Docket No. DENV 78-359-P with the Mine Safety and Health Review Commission on April 27, 1978~ This petition was answered on May 30,
1978. On May 31, 1978, petitions for assessment of civil penalty.
were filed with the Commission in Docket Nos .. DENV 78-437-P, DENV
78-438-P and DENV 78-439-P.. Respondent filed its answer to these
petitions on July 5, 1978.. Docket No. DENV 78-493-P, the final
petition involved herein, was filed on June 20, 1978, and answered
on July 25, 1978 .. At the request of Respondent, the above cases
were consolidated.
A hearing was held on September 13 and 14, 1978, in Tulsa,
Oklahoma. At that hearing, Petitioner called two witnesses and introduced 66 exhibits.. Respondent called two witnesses and introduced
five exhibits. MSHA submitted a posthearing brief on November 15,
1978, and a reply brief on December 13, 1978. Respondent submitted
its brief on December 4, 1978 ..
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Stipulations
The parties entered into the following stipulations:
1. Respondent Bill's Coal Company owns and operates the Fort
Scott Strip Mine and the Fulton Strip Mine.
2 .. In 1976 Bill's Coal Company produced 842,819 tons of coal ..
The Fort Scott Strip produced 559,140 tons.
3. All the violations that are involved in these proceedings
were abated with normal good faith ..
4 .. Bill's Coal Company is subject to the Federal Coal Mine
Health ~nd Safety Act of 1969.
fn .. 1 (continued)
penalty shall not be more than $10,000 for each such violation. Each
occurrence of a violation of a mandatory health or safety standard
may constitute a separate offense. In determining the amount of the
penalty, the Secretary shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of
the business of the operator c~arged, whether the operator was negligent, the effect on the operator's ability to continue in business,
the gravity of the violation, and the demonstrated good faith of the
operator charged in attempting to achieve rapid compliance after
notification of a violation."

168

5. The Administrative Law Judge has jurisdiction over the parties and subject matter of.these proceedings.
Docket No. DENV 78-359-P
On September 6, 1977, Larry L. Keller, thert a surface mine
inspector with MSHA, visited the Fort Scott Strip Mine to conduct a
safety and heaith inspection. At about 2:45 p.m., Mr. Keller issued
104(c)(l) Notice of Violation No. 1-LLK, citing 30 CFR 77.208(d). 2/
This mandatory standard requires that "[c]ompressed and liquid gascylinders shall be secured in a safe manner." While in the tipple
area of the mine, the inspector had observed an oxygen cylinder and
an acetylene cylinder standing unsecured in their wheeled cart. The
cart had chains attached to it to secure the bottles, but these chains
were left unconnected. As a result, the bottles could fall from the
cart.
The Respondent admitted in its answer that the condition existed
in violation of section 77.208.
The operator was negligent in that it knew or should have known
of the violation yet failed to take time corrective action. The violation had existed for a long enough time to have been discovered
and corrected. The condition had arisen prior to the lunch period
when a welder-mechanic changed one of the cylinders. Although the
mine superintendent who examined the tipple area during the lunch
period failed to 'observe it, the condition was obvious. The bottles
were in an active walkway .in plain view of Respondent's employees as
they proceeded to the No. 1 or No. 2 belts or into the tipple operator's compartment.
In this instance not only were the cylinders un~ecured but the
hoses of the bottles were strung out across an active walkway. An
accident was probable because a person walking by could accidentally
jerk the hoses, hit the bottles, or in some other way knock the
bottles out of the cradle. The caps were off the cylinders. In the
event that the cylinders fell, it was probable that the valves would
be knocked off causing sudden release of the gas. In addition,
torches were being used nearby, presenting the chance of explosion.
The bottles are 4 feet high, 8 inches in diameter, and under
approximately 2,000 pounds of pressure. If a bottle fell and the
valve was knocked off, the bottle would become a large, high-speed
projectile. Accidents have happened in which fallen cylinders have
"run wild" inside a building. They have been known to go through

!:_/

30 CFR 77.208(d) reads as follows:
"Compressed and liquid gas cylinders shall be secured in a safe
manner."

169

8-inch concrete walls and have penetrated one-quarter-inch steel
bulkheads. The evidence clearly establishes that the workers in
the tipple were exposed to a risk of serious injury or death.
Respondent's Assessed Violations History Report (Govt;. Exh.
No. 1) indicates that it had 27 paid violations from December 20,
1976, through December 12, 1977, at the Fort Scott Strip Mine. No
evidence indicates that a penalty in this case would adversely
affect the operator's ability to continue in business •
.Docket No. DENV 78-439-P
On November 8, 1977, Inspector Keller issued 104(c)(l) Notice of
Violation No. 1-LLK, citing a violation of 30 CFR 77.410. 3/ This
section requires that trucks must be equipped with an audible automatic backup warning device. The Respondent admitted in its answer
that an independently-owned coal hauler truck, which was not equipped
with such a warning device, came onto the premises of its Fulton
Strip Mine. Respondent further admitted that the presence of this
truck constituted a technical violation of section 77.410.
Petitioner has not shown that this violation was the result of
Respondent's negligence. When Inspector Keller arrived at the mine
that morning, Respondent's safety director, Homer Little, was in the
process of conducting a company inspection of the mine. As part of
this inspection, Mr. Little spot-checked a number of coal hauler
trucks at the weighing scale for compliance with Federal regulations.
Normally, the checking of trucks for compliance is .the responsibility
of a nonmanagement employee, the scale man. This employee was·left
to perform the safety checks when Mr. Little accompanied Mr. Keller
during his inspection.
Mr. Keller subsequently discovered the inadequately equipped coal
haulage truck. This truck had entered Respondent's property after
Mr. Little left the weighing scale, and he was unaware that it was
without a backup alarm until the absence was discovered by Mr. Keller.
The violation was abated within 10 minutes when the vehicle was permitted to leave the property. The driver of the cited truck stated
that he·had not been at the mine for approximately 3 weeks. It was
further developed by Respondent's Exhibits R-1 and R-2, and by admission of Inspector Keller, that Respondent had procedures which would
normally insure that independent drivers complied with the relevant
safety requirements. It was not established that under the circumstances that the operator knew or should have known of the violation
3/

30 CFR 77.410 reads as follows:
"Mobile equipment, such as trucks, forklifts, front-end "loaders,
tractors and graders, shall be equipped with an adequate automatic
warning device which shall give an audible alarm when such equipment
is put in reverse .. "

170

or failed to exercise reasonable care to prevent the occurrence of
the violation.
The failure of the truck to have a backup alarm did not present
a serious hazard under the circumstances at the mine. It is improbable that an accident would have occurred because of this failure.
The trucks had little occasion to back up, once they were on mine
property. They pulled up in forward gear, and, after being frontloaded, they puiled away in forward. Moreover, pedestrian traffic
in the area was very light. At the time the notice was issued,
there were no pedestrians in the area.
The operator had four prior paid violations at the Fulton Strip
Mine, none of which were for violations of 30 CFR 77.410. A total
of 1,841,420 tons of coal were produced at the Fulton Strip Mine in
1978. There is no evidence indicating that a penalty in this case
would adversely affect the operator's ability to continue in business.
Docket No. DENV 78-437-P
On December 12, 1977, inspector Larry Keller and inspectortrainee Don Summers, arrived at Respondent's Fort Scott Mine to conduct a safety and health inspection. In the course of this inspection, Inspector Keller issued at least three notices of violation
and 13 withdrawal orders, all of which were directed at conditions
existing in the mine tipple. The mine tipple had ceased operation
during the evening hours of Friday, December 9, when a drive motor
of the No. 2 conveyor burned out. The tipple did not operate on
December 10 and 11, during which time repairs were carried out.
A single violation is alleged in Docket No. DENV 78-437-P.
Inspector Keller issued 104(c)(l) Notice No. 1-LLK, citing a violation of 30 CFR 77.205(b). 4/ He described the condition at issue
as follows:
The walkway extending along the #2 and #3 belts had
the following stumbling and tripping hazards: two 20 lb.
propane bottles, pulley and belt guard, log chain, rope,
2 shovels, angle iron, pry bar, drop light, grease gun
and a coal accumulation great enough at the transfer
point from #2 to ffa3 belt to render the walkway in that
area inaccessible.
The inspector also alleged that the violation was of such a nature as
could significantly and substantially contribute to the cause and

4/

30 CFR 77.205(b) reads as follows:
"Travelways and platforms or other means of access to areas where
persons are required to travel or work, shall be kept clear of all
extraneous material and other stumbling or slipping hazards."

171

effect of a mine safety or health hazard, and that it was caused by
an unwarrantable failure to comply with such standard.
In its answer, the Respondent admitted the presence on the No. 2
and No. 3 walkways of the items and materials listed by the inspector,
but maintained that they were not extraneous and did not constitute
a stumbling or tripping hazard in violation of section 77.205(b).
In support of this contention, the Respondent explained the
presence of each of the items or materials as follows:
(a) The 20-pound propane bottles with torches were used throughout the winter months to melt ice from the conveyor idlers;
(b) The pulley and belt had been removed during the drive
motor repair of December 10 and 11;
(c) The log chain and rope were used to hoist the drive motor
to its mounting;
(d) The shovels were used to remove coal from the belts and
to break ice;
(e) The pry bar and angle iron were used as a lever to move
the No. 2 motor and to remove ice from the conveyor;
(f) The grease gun was used to lubricate pulley sheaves after
work on the idlers was done; and
(g) The drop light was used to illuminate the walkway and the
burnt out motor on the evening of December 9.
Section 77.205(b) requires that travelways be maintained clear
of stumbling hazards and there is no express exception of this
requirement during repairs. Some of these items, including the rope
and tackle, the drop light, log chain and grease gun, were no longer
needed in the repair process. The inspector saw no workers actively
engaged in actual repair work at the time of his inspection.
Coal had accumulated in. two areas--at the transfer point from
the No. 2 to the No. 3 conveyor and at the drive end of ~he No. 3
conveyor. At the first of these areas, as much coal as the walkway
could hold had accumulated. Although coal was no longer being transferred to the No. 3 belt, it had accumulated in passing.
The accumulation at the drive of the No. 3 conveyor was far less than at the
transfer point, but there were pieces of coal lying on the walkway ..
The presence of the equipment, items and coal accumulations
on. ~he walkway created stumbling hazards in violation of section
77 .. 205(b) ..

172

The evidence indicates that the operator was negligent in its
failure to properly maintain the walkways. Even though the items and
materials were readily observable and had been used, for the most
part, during the weekend repair efforts, no mention was made of the
condition on Monday morning in the onshift examination record book.
The operator knew or should have known of the condition, yet failed
to take steps to correct it.
The only access to conveyor belts No. 2 and No. 3 was along the
walkways in question. Any employee assigned to work on these walkways would have been exposed to the stumbling hazard. Given the
condition of the walkways, it was probable that a stumbling accident
would occur.
The injuries threatened ranged from bruises to broken bones--the.
normal consequences of a fall. It was also possible that an individual
might fall from the walkway to the coal pile below. The distance
from the walkway to the coal pile was 25 feet in the vicinity of the
coal accumulation at the transfer point from the No. 2 to No., 3 belts,
the place where this more severe accident was most likely to occur.
Of the 27 paid violations at the Fort Scott Strip Mine between
December 20, 1976, and December 12, 1977, two were for violations of
77.205, including one which was issued on December 12, 1977. No evidence indicates that a ~enalty in this case would adversely affect
the operator's ability to continue in business"
Docket No. DENV 78-438-P
Two violations are alleged in Docket No. DENV 78-438-P. Both
alleged violations were the subject of 104(c)(l) notices of violation
issued by Inspector Keller in the course of the December 12 inspection at the Fort Scott Strip Mine.
The first of these was Notice No. 5-LLK which cited a violation
of 30 CFR 77"1713(c). 11 The inspector described the condition as
follows:

5/

30 CFR 77.1713(c) reads as follows:
"After each examination conducted in accordance with the provisions of paragraph (a) of this section, each certified person who
.conducted all or any part of the examination required shall enter
with ink or indelible pencil in a book approved by the Secretary the
date and a report of the condition of the mine or any area of the mine
which he has inspected together with a report of the nature and. location of any hazardous condition found to be present at the mine. The
book in which such entries are made shall be kept in an area at the
mine designated by the operator to minimize the danger of destruction
by fire or other haza~d""

173

The on-shift examination records of the tipple area by
certified persons during the day shift on 12-12-77 indicated
no hazardous conditions had been found.. The 4 notices of
violation and the 14 closure orders issued at the tipple
area this date indicated there were some hazardous conditions in that area which were not recorded ..
Undisputed testimony established that an onshift examination o~
the tipple area was conducted on December 12, and there were no hazardous conditions noted in the examination record book. Respondent's
contention that no hazardous conditions existed is rejected. The
stumbling hazard discussed above in Docket No .. DENV 78-437-P existed
at the time of the onshift examination.. In addition, the Respondent
admitted the existence of three violations alleged in Docket No .. DENV
78-493-P--Order Nos .. 7-0032, 7-0033 and 7-0034.. These violations
involved the substantial accumulations of coal and the blockage of an
escapeway.. The inspector testified that the coal accumulations in
these areas had existed for numerous operative shifts.. As discussed
below, there were also instances of unguarded machinery in the tipple.
The failure to record these hazards in the examination record. book
was in violation of section 77~1713(c) ..
The operator's failure to record the existing hazards was
negligence in that the conditions were visually apparent.
It is improbable that the failure to record the hazards which
existed in Respondent's 'tipple increased the risk of accident and
inJury. The above-mentioned hazards were visually apparent.. It is
unlikely that entry in the examination book would have increased the
awareness of Respondent's employees with regard to these hazards.
The second Notice, No. 2-LLK, cited a violation of 30 CFR
77.512. 6/ The inspector described the condition as follows: "The
junction-box located near the drive pulley of the No. 2 belt was not
provided with a cover plate-."
The Respondent admitted in its answer that .the condition existed
as alleged. It contended, however, that the absence of the cover
plate was not in violation of section 77.512 because of the "testing"
exception contained therein. Section 77.512 provides that cover
plates shall be kept in place at all times except during testing or
repairs.
The plate had been removed in order to allow replacement of the
drive motor on the No. 2 conveyor.. While the junction box was

2-_/

30 CFR 77 .. 512 reads as follows:
"Inspection and cover plates on electrical equipment shall be
kept in place at all times except during testing or repairs .. "

174

unguarded, the belt had been operated for testing purposes only. As
such, this condition did not constitute a violation of 30 CFR 77.512.
The history of prior paid violations at Respondent's Fort Scott
Strip Mine has been noted above •. No evidence indicates that a penalty in this case would adversely affect Respondent's ability to
remain in business.
Docket No. DENV 78-493-P
Thirteen violations were alleged in Docket No. DENV 78-493-P.
·These alleged violations gave rise to 104(c)(l) withdrawal orders
which were issued by Inspector Keller on December 12 at the Fort
Scott Strip Mine. In its answer, Respondent included a Motion to
Confess Partial Judgment with regards to three of the violations.
This motion is the equivalent here of a motion for approv~l of
settlement. The Respondent admitted the occurrence of these
violations and tendered a check for payment in full of the civil
penalty as originally assessed by MSHA. · The three orders and
corresponding civil penalties assessed and paid are as follows:
No. 12-LLK (No. 7-32) for a violation of 77.1104 J_/

$2,200

No. 13-LLK (No. 7-33) for a violation of 77.213 §_/

$2,500

No. 14-LLK (No. 7-34) for a violation of 77.205(b) '!_/

$2,200

Inspector Keller issued Order of Withdrawal No. 12-LLK after
observing accumulations of loose coal and coal dust in the draw-off
tunnel, under the No. 1 belt conveyor from the tail pulley to the
east side of the tipple building and along the No. 1 belt conveyor.
Order of Withdrawal No. 13-LLK was issued by the inspector because
no usable escapeway was provided from the closed end of the drawoff tunnel to a safe location on the surface. Coal had accumulated
to a height of 4 feet on the trap door leading from the tunnel to
30 CFR 77.1104 reads ~s follows:
"Combustible materials, grease, lubricants, paints, or flammable
liquids shall not be allowed to accumulate where they can create a
fire haza·rd."
~/
30 CFR 77.213 reads as follows:
"When it is necessary for a tunnel to be closed at one end, an
escapeway not less than 30 inches in diameter (or of the equivalent,
if the escapeway does not have a circular cross section) shall be
installed which extends from the closed end of the tunnel to a safe
location on the surface; and, if the escapeway is inclined more than
30 degrees from the horizontal it shall be equipped with a ladder
which runs the full length of the inclined portion of the escapeway."
'ii See footnote 4.
]_/

175

the surface, preventing escape. The last of these three orders,
Order of Withdrawal No. 14-LLK, was issued by the inspector because
he observed that both walkways along the coal dump hopper were full
of loose coal and coal chunks. In addition, coal had accumu,lated.
around the ladder leading to the walkways to a height of approximately 4 feet.
The inspector found that each of these three violations was of
such nature as could significantly and substantially contribute to
the cause and effect of a mine safety or health hazard arid that each
was caused by an unwarrantable failure to comply with the respective
standard on the part of Respondent. All three conditions were abated
within the time prescribed by the inspector.
In view of the above, the negotiated settlement of these three
orders of withdrawal is hereby approved.
The remaining 10 orders were directed at the absence or inadequacy of guards in various places throughout the tipple and along
the conveyor belts. In each of them, Inspector Keller cited either
section 77.400(a) or section 77.400(c)w 10/ Section 77.400(a) states
that exposed moving machine parts, such as drive, head and tail
pulleys, which may be contacted by persons, and which may cause
injury to persons shall be guarded. Section 77.400(c) states that
guards at the 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 pu1leyw
The inspector also found that each alleged violation was of such
nature as could significantly and substantially contribute to the
cause and effect of a mine safety or health hazard, and was caused
by unwarrantable fai;ure on the part of the .operator.
In its posthearing brief, the Respondent asserted that the single
overriding issue is whether the orders were directed at equipment
10/

30 CFR 77.400 reads as follows:
"(a) Gears; sprockets; chains; drive, head, tail, and takeup
pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and
simiiar exposed moving machine parts which may be contacted by
persons, and which may cause injury to persons shall be guarded.
"(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."

176

which was being tested and/or repaired. This is an oversimplification.
The alleged violations considered below are separate and apart and
must be treated as such.
As noted above, there were 27 paid violations at the Fort Scott
Strip Mine from December 20, 1976, until December 12, 1977. There is
no evidence which would indicate that a penalty would affect the
'Respondent's ability to continue in business.
The alleged violations are considered below in the sequence in
which the corresponding orders were issued.
a.

Order No. 1-LLK

Order No. 1-LLK cited section 77.400(c) and was directed at the
following condition: "The belt drive pulley of the No. 3 horizontal
conveyor had not been guarded." The Respondent admitted in its
answer that the pulley was unguarded as alleged, but argued that no
violation existed because its No. 3 conveyor belt was inoperative.
Larry Pommier, Respondent's chief engineer, testified that the
No. 3 belt had been inoperative since late summer or early fall of
1977. Respondent had experienced icing problems with the belt during the prior winter, and, after unsuccessful attempts to correct
the problems, had shut down the belt in anticipation of the oncoming
winter. This testimony was uncontradicted,. Since the belt was not
operational and had not been used for a long period of time, the
record does not establish a violation of section 77.400(c). Under
the circumstances, the belt did not ·present the hazard which the
regulation was intended to prevent~
b.

Order No. 2-LLK

Order No. 2-LLK cited section 77.400(a) and was directed at the
following condition: "The V-belts and pulleys of the No. 2 belt conveyor drive were not guarded. The guard had been removed and not
replaced." The Respondent admitted in its answer that the guard was
not in place. It had been removed to facilitate replacement of the
No. 2 conveyor motor which had burned out on the evening of
December 9, 1977.
Respondent asserted in its defense that the equipment had been
operated for testing purposes only while in its unguarded condition.
The conveyor system was not operated from the time the motor failed
until the morning of December 12, 1977,. At that time, two short
test runs were made in order to check the newly-installed drive.
motor, as well as the alignment of the belt. Coal was carried on the
belt during the· second run in order to test the belt under normal
operating tension.

177

Section 77.400(d) states: "Except when testing the machinery,
guards shall be in place at all times while the machinery is being
tested." Respondent established that the guard in question had been
removed to facilitate repairs, and the belt was thereafter operated
in an unguarded condition for testing purposes only. The absence of
the guard in this instance did not constitute a violation of
section 77.400(a).
c.

Order No. 3-LLK

Order No. 3-LLK ~ited section 77.400(c) and was .directed at the
following condition: "The belt drive pulley of the No. 2 conveyor
had not been guarded to prevent a person from reaching behind the
guard and becoming caught between the belt and pulley. One side of
the guard had been removed and not replaced and one guard was
inadequate."
The Respondent admitted in its answer that the belt was unguarded
as alleged. Chief Engineer Pommier testified that the guard on the
south side of the belt had been taken off to allow replacement of
conveyor idlers, as well as deicing of the belt. The guard had been
removed to facilitate repair and other than test runs, the belt had
not been operated without this guard. With respect to this side of
the belt drive 'pulley, no violation existed.
The testimony of Inspector K~ller and Inspector-Trainee Sum.~ers
established that the guard on the north side of the drive pulley was
inadequate, as alleged. This guard did not extend a sufficient distance down the belt to prevent a person from coming into contact with
the pinchpoint _between the belt and pulley~
The operator was negligent in its failure to adequately guard the
belt drive pulley. The condition was readily observable and existed
along a regularly traveled portion of the belt~ The operator knew or
should have known of its existence, yet failed to take corrective
action.
It is improbable that a person would come into contact with this
particular pinchpoint. No evidence exists on the record that a person
could do so inadvertently. The testimony adduced as to the probability
of the occurrence of an accident and injury related to the absence of
the guard from the south side of the belt and the record did not establish that it would be likely for a p~rson to be injured by
inadvertently reaching behind the guard.
If a person were to be caught between the belt and pulley at the
pinchpoint, loss or breakage of a limb or fingers might occur,.

178

d.

Order No. 4-LLK

Order No. 4-LLK cited section 77.400(c) and stated: "['J;]he tail
pulley of the No. 3 .belt conveyor had not been guarded. The guard
was laying on the walkway under about 12 inches of loose coal." The
Respondent admitted in its answer that the tail pulley was unguarded,
but asserted in its defense that the No. 3 belt was inoperative and
that the guard in question had been removed for purposes of repair.
As noted above, the uncontradicted testimony of Larry Pommier,
Respondent's chief engineer, established that the No. 3 belt had been
inoperative since late summer or early fall of 1977. As such, the
unguarded tail pulley did not present a hazard and was not in violation of section 77~400(c).
\
e..

Order No. 5-LLK

Order No. 5-LLK cited section 77.400(c). Inspector Keller
observed that: "The drive pulley and feeder chain of the salting
machine located over the No. 2 belt converyor had not been guarded."
Respondent admitted in its answer that this equipment was unguarded.
The guard had been taken off to repair the drive pulley of the salting machine. The guard was in the vicinity, but it had ~ot been
replaced after repairs were completed.
This condition was a clear violation of 77.400(c). Respondent's
argument that no violation existed because the belt was being·tested
is rejected. Although Respondent asserts in its posthearing brief
that repairs were "recent," there is no evidli!nce on the record which
indicates the time at which the repairs had been carried out. Respondent failed to establish a connection between the testing and the
absence of this guard.
Evidence indicates that the Respondent was negligent in its failure to guard this equipment. The absence of ·the guards was readily
observable.
It is probable that an accident would occur. The pulley was
located along a walkway and was accessible to passersby.. The inspector estimated the pulley to be within 12 inches of the walkway. If
such an accident were to occur, it is probable that a loss of fingers
or a hand would result.
f.

Order No. 6-LLK

Order No. 6-LLK cited section 77.400(c) and stated that "the
drive pulley of the No. lA belt conveyor had not been guarded."
Inspector Keller testified that this drive pulley had never been
guarded. The Respondent admitted in its answer that the equipment
was unguarded, but' isseited the absence of a guard did not co~sti~
tute a violation because the tipple had been operational for festing

179

purposes only on December 12, 1977. This defense is rejected in this
instance because no causal link was established between the absence
of this guard and the operation of the belt fo~ testing purposes.
The Respondent was negligent in its failure to guard this drive
pulley because the condition was readily observable and had existed
for a long period of time. It knew or should have known of the con·dition, yet it failed to take corrective action.
The pinchpoint between the pulley and belt was estimated by
Inspector Keller to be 18 inches from the walkway between knee and
waist height. Given the close proximity of the pinchpoiut to the
walkway. it was probable that an accident would occur. If such an
accident were to occur, it is probable that the resulting injury
would be disabling. Inspector Keller testified that it was likely
that an individual caught at this pinchpoint would be dragged into
the belt and killed.
g.

Order No. 7-LLK

Order No. 7-LLK cited section 77.400(c) and stated that "the
tail pulley of the No. lA belt conveyor had not been provided with a
guard." The Respondent had removed the guard because the pulley area
could not be kept clear of coal otherwise~ The Respondent admitted
in its answer that the tail'pulley was unguarded, but again asserted
that the absence of a guard did not constitute a violation because
the tipple operated on December 12, 1977, for testing purposes only.
This defense is rejected because no causal link was established
between the absence of the guard and the operation of the belt for
testing purposes.
The operator was negligent in that it knew the absence of the
guard, yet it failed to take corrective action.
Inspector Keller testified that an accident was probable because
Respondent's employees were required to clean in the area. He knew of
accidents where fatalities had occurred when a person caught a shovel
in a tail pulley and was dragged into a belL Larry Pommier testified
that all cleaning .in the area was accomplished with water under high
pressure. Even so, the finding that an accident was probable is warranted because Respondent's employees had occasion to work in the
area and the unguarded pulley was readily accessible.
It is probable that a disabling injury would occur if a person
was caught between the belt and pulley.
h.

Order No. 8-LLK

Order No. 8-LLK cited section 77.400(a).
the condition as follows:

180

The inspector described

The guard o.n the north end (face) o.f the rotary breaker
was not adequate to prevent personal contact of the drive
chain and the breaker drum itself. The.guard was not of
sufficient height and in addition had been damaged and
repairs had been attempted by wiring the guard back in
place.
The guard on the rotary breaker normally reached a height of more
than 6 feet. However, the guard had been damaged so that on one side
it reached a height .of only 4 feet and extended out into the walkway.
An attempt had been made to repair this damage with wire. The testi~
mony of Inspector Keller and Inspector-Trainee Summers established
that an individual could come into contact with and be injured by the
rotary breaker where its guard had been damaged.
The Respondent was negligent in that it was or should have
been aware of the damage to the guard, but failed to take adequate
corrective measures.
An accident was probable in that the inadequately guarded
breaker was adjacent to a walkway frequently traveled by Respondent's employees" Inspector Keller testified that a falling man
could reach for support and contact the breaker"
If such an accident were to occur, the probable result would be
a disabling injury. Loss of fingers, a hand or an arm might have
resulted.
i.

Order No. 10-LLK

Order No. 10-LLK cited section 77.400(c) and stated that "the
tail pulley of the No. 1 belt conveyor had not been guarded." The
Respondent admitted in its answer that this tail pulley was
unguarded and Inspector Keller testified that a person could become
caught between belt and pulley while performing his normal duties
in the area.,
The "testing" defense interposed by Respondent is again rejected.
No connection was established between the testing of the belt on
December 12 and the absence of the guard on the tail pulley.
The operator was negligent in that it knew or should have known
that the pulley was unguarded. The condition was visually apparent.
That accumulations of coal contacted and engulfed the pulley in<licated that the condition existed for a long enough time that it
should have been discovered by the Respondent. If a guard had been
present, it would have prevented contact between the pulley and the
accumulations.
It is.probable that an accident would occur because of the
absence of this guard. The pulley was adjacent .to a walkway which

181

wa.s used by Respondent's employees in the performance of their ·duties.
The presence of a water pump on the walkway and coal accumulat.ions
in the area increased the likelihood that an accident would occur
causing a miner to be caught in the belt. Larry Pommier testified
that the pinchpoint between this pulley and the belt was inside a
truss which was itself guarded. At the same time, Mr. Pommier testified that he was "not that familiar" with this tail pulley. Accordingly, Inspec~or Keller's testimony is given greater weight.
If an accident were to have happened, it is probable that a disabling injury would have occurred. Loss of fingers or a hand might
have resulted.
j.

Order No. 11-LLK

Inspector Keller issued Order No. 11-LLK, citing section
77.400(a). He stated that "the V-belt, clutch and pitman arms of
the feeder drive located in the draw off tunnel had not been guarded."
The Respondent admitted in its answer that this equipment was
unguarded. Larry Pommier testified that they had been removed to
allow for repair of the feeder and replacement of the clutch. Respondent argued that a violation of 77.400(a) did not exist because
repairs had been made and the guards had been left. off until t~sting
could be accomplished. This defense must be rejected because the
record contains no indication of the time when these repairs were
effected. More specifically, there is no indication that the repairs
were made in the period from December 10 through 12, and therefore,
no causal link was established between the absence of guards and the
testing carried out on December 12.
The operator was negligent in its failure to guard the machines.
This condition was visually apparent and should have been known to
the operator.
Because of the absence of guards on this equipment, an accident
was probable. One employee per shift was required to work in the
area, and the walkway around the equipment had only a 16-inch
clearance.
If an accident occurred, the probable result would have been the
loss of fingers or a hand.
Penalties
In consideration of the findings of fact and conclusions of law
in this decision based on stipulations and evidence of record, the
following assessments ar~ appropriate under the criteria of section
109(a) of the Act.

182

Docket No. DENV 78-359-P
Notice of Violation No. 1-LLK (9/6/77)

$ 1,000

Docket No. DENV 78-439-P
Notice of Violation No. 1-LLK (il/8/77)

75

Docket No. DENV 78-437-P
Notice of Violation No. 1-LLK ( 12/12/77)

1,000

Docket Now DENV 78-438-P
Notice of Violation No. 5-LLK ( 12/12/77)

100

Docket No. DENV 78-493-P
Order of Withdrawal No~ 3-LLK (12/12/77)

1,000

Order of Withdrawal No. 5-LLK ( 12/12/77)

1,000

Order of Withdrawal Now 6-LLK (12/12/77)

1,500

Order of Withdrawal No. 7-LLK ( 12/12/77)

1,500

Order of Withdrawal No. 8-LLK ( 12/12/77)

1,000

Order of Withdrawal No. 10-LLK (12/12/77)

1,000

Order of Withdrawal No~ 11-LLK ( 12/12/77)

1,000

ORDER
The civil penalty proceedings with respect to Notice of Violation Now 2-LLK (December 12, 1977), Order of Withdrawal No. 1-LLK
(December 12, 1977), Order of Withdrawal Now 2-LLK (December 12,
1977), and Order of Withdrawal No. 4-LLK (December 12, 1977), are
hereby DISMISSED.
It is ORDERED that the settlement negotiated by MSHA and Respondent with regard to Order of Withdrawal No~ 12-LLK (December 12,
1977), Order of Withdrawal No. 13-LLK (December 12, 1977), and Order
of Withdrawal No. 14-LLK is hereby approved~ ·

183

With respect to the remaining notices of violation and orders
of withdrawal, it is ORDERED that payment in the amount of $10,175
be made within 30 days of the date of this decision.

Forrest E. Stewart
Adminstrative Law Judge
Issued:

April 5, 1979

Distribution:
Judith N. Macaluso, Esq., Office of the Solicitor, Mine Safety
and Health Administration,.U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
Donald K. Switzer, Esq., Logan, Lowry & Johnston, 101 South
Wilson Street, P.O. Box 574, Vinita, OK 74301 (Certified Mail)
Administrator, Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

184

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE Of ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGIN IA 22203

April 5, 1979

Civil Penalty Proceedings

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

Docket No. DENV 78-51-P
A/O No. 41-02632-02002

TEXAS UTILITIES GENERATING CO.,
Respondent

Docket No. DENV 78-485-P
A/O No. 41-02632-02001
Docket No. DENV 78-503-P
A/O No. 41-02632-02003
Martin Lake Strip Mine
Docket No. DENV 78-486-P
A/O No. 41-01900-02002
Docket Now DENV 78-487-P
A/O No. 41-01900-02003
Monticello Fuel Facilities Strip
Mine
Docket No. DENV 78-491-P
A/O No. 41-01192-02001
Docket No. DENV 78-492-P
A/O No. 41-01192-02002
Big Brown Strip Mine

DECISION
Appearances:

John H. 0 1 Donnell, Esq., U.S. Department of Labor,
Office of the Solicitor, MSHA, on behalf of Petitioner;
Richard L. Adams, Esq., Dallas, Texas, on behalf of
Respondent.

Before:

Forrest E. Stewart, Administrative Law Judge·

185

FACTUAL AND PROCEDURAL BACKGROUND
The above-captioned civil penalty proceedings were brought pursuant to section 109 1/ of the Federal Coal Mine Health and Safety Act
of 1969, 30 u.s .. c. § 819 (1970), hereinafter referred to as the Act ..
These proceedings were consolidated pursuant to a motion submitted by Petitioner on September 19, 1978,. Hearings were held on
October 18 and 19, 1978, in Dallas, Texas,. The Petitioner called
three witnesses and introduced 55 exhibits.. The Respondent called
three witnesses and introduced eight exhibits.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Docket Nos .. DENV 78-51-P> DENV 78-485-P, and DENV 78-503-P, concern conditions which were allegedly observed at Respondent's Martin
Lake Strip Mine. The Martin Lake Strip Mine is a surface lignite mine
located in Beckville> Texas~ Production started at this mine in the
early part of 1977.. At the time of the hearing, 200 to 300 men
were employed at the mine. A total of six prior paid violations
occurred there in the period from September 15; 1976 through May 16 1
1977.
Docket No. DENV 78-51-P
Inspector Larry Maloney issued section 104(b) Notice of Violation
No. 2-LGM on May 17, 1977. The inspector cited 30 CFR 77.1605(d) and
described the condition allegedly in violation of this standard as
follows: "The Caterpillar V 300 forklift (company #3405) was not
. provided with an operative audible warning device. The forklift was
located in the shop yard."
The testimony of Inspector Maloney clearly established the existence of a violation of section 77.1605(d). This section requires
1/

Section 109(a)(l) of the Act reads as follows:
"The operator of a coal mine. in which a violation occurs of a
mandatory health .or safety standard * * * shall be assessed a civil
penalty by the Secretary under paragraph (3) of this subsection which
penalty shall not be more than $10,000 for each such violation. Each
occurrence of a violation of a mandatory health or safety standard
may constitute a separate offense. In determining the amount of the
penalty, the Secretary shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of
the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business>
the gravity of the violation> and the demonstrated good faith of the
operator charged in attempting to achieve rapid compliance after
notification of a violation .. "

186

that mobile equipment be provided with audible .warning devices., The
inspector tested the horn on the forklift and found that it was not
working. The cause of this malfunction was a faulty control button.
At the time the notice was issued, there was no operator on
the machine and it was not running. However, one of Respondent's
mechanics told the inspector that the forklift was operational. At
this mine, a tag forbidding use is normally placed on a machine in
need of repair. No such tag had been placed on the forklift and
nothing prevented its use.
The inspector testified that it was improbable that an accident
would occur because of the inoperative horn.
No showing was made of negligence on the part of the Respondent.
The inspector estimated the probability that the Respondent knew of
the malfunction to be minute.
The parties stipulated that the condition was aba.ted with a
normal degree of good faith.,
Docket No. DENV 78-485-P
Four alleged violations of mandatory standards are included
within Docket No~ DENV 78-485-P. All four were objects of notices
of violation issued at the Martin Lake Strip Mine. They are discussed below in the order of their issuance.
A.

Notice of Violation No. 2-LGM (September 15, 1976)

Inspector Maloney issued Notice of Violation No. 2-LGM on
September 15, 1976. He cited 30 CFR 77wl711 and described the condition allegedly in violation of this standard as follows:
An employee was smoking a cigarette in.close proximity
feet) with the Chevrolet service truck's
cargo bed (company #3516). The truck was provided with
warning signs prohibiting smoking or open fiames in the
immediate area of the employee. The truck was carrying a
one thousand gallon diesel storage tank (over 1/2 full),
oil, grease, and varsol.
(appro~imately.2

Inspector Maloney testified that he had stopped the service truck
in order to inspect it. The inspector had twice before issued notices
of violation directed at this same truck. Because of this, the oper~
ator of the vehicle was very nervous. He climbed down from the cab,
leaned against a pipe at the.top of which was a sign which read "No
smoking or open flame," ·took out a cigarette and lit it in the presence of the inspectorw The truck was transporting a large quantity
of oil, varsol~ grease and diesel fuel.

187

30 CFR 75.1711 states that "No person shall smoke or use an open
flame ·where such practice may cause a fire or explosion." A clear violation of this standard on the part of one of Respondent's employees
is evident here.
This violation was not accompanied by negligence on the part of
the Respondent. The Texas Utilities Safety Manual contains a provision which reads, "Employees shall not smoke on company property
where this act constitutes a fire hazard." Respondent's safety
representative, David Thompso~. testified that the company made a
diligent effort to enforce this provision. The operator of the truck
was irrnnediately given a strong oral reprimand and, later, was issued
a written reprimand which was placed in his file. It should be noted
once again that the employee lit the cigarette directly under a "No
smoking" sign.
It is probable that this type of activity, if left unchecked,
would cause a fire or an explosion. A disabling injury or a
fatality would be the likely result of such an accident. At the
time this infraction occurred, three people, including the truck
operator, a representative of the Respondent, and Inspector Maloney,
were threatened with injury.
The parties stipulated that the Respondent demonstrated a.normal
degree of good faith in abating these conditions once the notice of
violation was issued.
B.,

Notice of Violation No. 5-LGM (September. 15 • 1976)

Inspector Maloney issued J04(b) Notice of Violation No. 5-LGM on
September 15, 1976, citing 30 CFR 7].1702(c). The citation was issued
because it was reported to the inspector that the company had not submitted a report on emergency medical or ambulance service arrangements
to the MSHA subdistrict or district offices.
Section 77.1702(c) requires that each operator shall, on or
before September 30, 1971, report emergency medical or ambulance service arrangements to the MSHA district office., The Martin Lake Strip
Mine had not yet produced coal by September of 1976. Even so, the
definitions of "operator" and "coal mine" in sections 3(e) and (h)
of the Act are broad enough to have encompassed the Respondent and
its mine at that time. The Respondent was required to comply with
the provisions of section 77.1702(c).
The testimony of Inspector M~loney established a technical violation of section 77.1702(c). The Respondent failed to file the
report in question because it was unaware that such a report was
required.

188

There is no indication that the Respondent was negligent in its
failure to file this report. Approximately 6 weeks before the citation was issued, the inspector delivered a "new mine packet" which
- contained forms to be submitted by the Respondent. The inspector did
not set a date by which these forms had to be submitted. This packet
did not contain a form for the report in question and the inspector
could not remember if the need for the report had been discussed.
Prior to September 15, 1976, the Martin Lake Strip Mine had not
been issued a mine I.D. number. This number is the legal identification of the mine and must accompany an operator's submissions to MSHA.
Without this identification, there is a possibility that the information would be misplaced.
The inspector did not consider the failure to submit the report
to be a serious infraction. The company had provided for emergency
medical and ambulance services, but failed only in its duty to
notify MSHA of these arrangements. Emergency phone numbers had been
posted on the bulletin board and each supervisor carried a pocket
card with these numbers.
The parties stipulated that the operator demonstrated a normal
degree of good faith in abating the condition, once the notice of
violation issued.

c.

Notice of Violation No. 1-LGM (September 16, 1976)

Inspector Maloney issued section 104(b) Notice of Violation
No. 1-LGM on September 16, 1976, citing 30 CFR 77.1713(c). The citation was issued because the onshift examination of the mine shop had
not been recorded for the 12 a.m. to 8 a.m. shift. The inspector
asked to see the onshift examination book for the shop area and was
informed by Chad Abernathy, the operating engineer, that this book
was not yet being kept.
The operator was negligent in its failure to maintain an onshift
examination record book. The inspector testified that the mine superintendent and other personnel had worked at mines where the record
books were required. The superintendent and certified individuals
qualified to make the examinations knew or should have known of the
requirement ..
The inspector was of the opinion that this was not a serious violation. No showing was made that the operator failed to carry out
the onshift examination. In the event that such an examination was
carried out, it is improbable that the failure to keep a record would
result in accident and i"njury. The record serves primarily as a check
to make certain that such an inspection did occur.

189

The parties stipulated that there was a normal degree of good
faith demonstrated in the abatement of the condition, once the notice
of violation was issued.
D.

Notice of Violation No. 2-LGM (February 2, 1977)

Notice of Violation No. 2-LGM was issued by I.nspector Maloney on
February 2, 1977. ~e cited 30 CFR 77.1110 and issued the notice
because he observed that the fire extinguisher in a winch truck was
"not maintained in a useable and operative condition." The inspector did not find that the condition was of such a nature as could
significantly and substantially contribute to the cause and effect of
a mine safety hazard or that it was caused by an unwarrantable failure on the part of the Respondent. The condition was abated within
the time specified by the inspector.
The parties agreed to settle this case for $43, the amount
originally assessed by MSHA's Office of Assessments. This settlement
was approved by the administrative law judge at the hearing and this
approval is affirmed here.
Docket No. DENV 78-503-P
A single alleged violation is included under this docket ~umber.
On October 12, 1977, Inspector Maloney issued Notice of Violation
No. 1-LGM at the Martin Lake Strip Mine. .The inspector cited
30 CFR 77.1104 and described the condition found by him as follows:
Excessive oil spillage and oil soaked rags were allowed
to accumulate creating a fire hazard on and around the swing
gear case and hydraulic control valves on the Koehring 1266
backhoe. The gear case and control valves are located in
the front of the machine house next to the operator's cab.
The backhoe is used to load coal in 001 pit.
The testimony of the inspector established that the condition
existed as alleged. The backhoe had leakage problems., At the time
the condition was first observed by the inspector, the machine had
been out of service for approximately 1 hour and had.been removed
200 to 300 feet from the location at which it had been working. The
machine had not been tagged to prevent its use because the repair to
be made was considered minor.
Oil covered a 4-foot by 8-foot plate. Some of the oil had
gathered in puddles of approximately one-quarter inch deep. In
other places, it was smeared. Two to four rags of a size approximately 2 feet by 2 feet had been thrown in the oil.
No plans to clean up the oil spillage had been made by the
Respondent. Before issuing the notice, the inspector spoke with

190

representatives of mine management and ascertained that a cleanup
program had not been initiated. The machine operator also denied
. responsibility~
The inspector believed that this condition created a fire hazard.
The accumulations were beside the operator's cab and in the area of
the hydraulic.tanks.
Given the absence of a cleanup program and the hazard presented
by these accumulations, their presence was in violation of section
77 .1104 ..
No showing was made that the Respondent was negligent in its
failure to keep the backhoe free of accumulations.
It was improbable that a fire would start and cause injuries.
There were no ignition sources in the immediate vicinity~ In the
opinion of the inspector, the two most likely sources of fire were
discarded cigarettes or welding activities~ The engine on the
backhoe sits towards the rear of the machine and was considered not
to be an ignition source by the inspector. Not only was there an
absence of ignition sources, but the hydraulic oil was fireresistant. The temperature at which this oil would ignite was
considerably higher than that of untreated hydraulic oil.
Finally, the inspector testified that the operator of the backhoe was the individual most endangered by the accumulations. Since
the backhoe had been removed from service, this threat no longer
existed~

The Respondent demonstrated a normal degree of good faith in
abating the condition, once the notice of violation was issued.
Docket No. DENV 78-486-P
Eleven alleged violations of mandatory standards are included
within Docket No. DENV 78-486-P. Each of the 11 occurred at Rcspondent 's Monticello Fuel Facilities Strip Mine .. This lignite mine is
located in Winfield, Texas~ It has an annual production of between
6 and 7 million tons and employs approximately 400 employees. In
the period from April 18, 1975, through January 10, 1977, there were
a total of 22 prior paid violations at the Monticello Fuel Facilities
Strip Mine.
Each of the violations alleged herein was the object of a 104(b)
notice of violation. Th~se notices are discussed below in the order
of their issuance.

191

A.

Notice of Violation No. 1-JF (Marc~ 4, 1976)

Notice of Violation No. 1-JF was issued on March 4, 1976, by
inspector John Franco. He issued the notice on the basis of information contained on a printout received from the MSHA Denver Office.
This printout indicated that the Respondent had submitted only eight
of the 10 valid respirable dust samples required under the provisions
of 30 CFR 71.106(c). The Respondent had submitted 10 samples, but
two of these were subsequently invalidated. Glen Hood, Respondent's
employee in charge of the submission of this data, testified that he
filled out a form incorrectly so that the sample appe.ared to have
been taken in the wrong location. He had wrtten "001-0" where he
should have written "001-L" The second sample contained oversized
particles. Respondent's failure to submit 10 valid samples was in
violation of section 71.106(c).
The inspector was of the opinion that the operator would not
necessarily know that one of the submitted dust samples contained
oversized particles. No showing was made that the Respondent was
negligent with respect to the sample invalidated because of clerical
error ..
It is improbable that the failure to submit valid samples in this
instance would lead to the occurrence of accident, illness, or injury~
This is particularly true because no respirable dust problem exists
at this mine ..
The operator demonstrated a normal degree of good faith in complying with the requirements of section 77.106(c), once the notice
of violation issued.
B..

Notice of Violation No. 1-JDC (May 6, 1976)

Notice of Violation No. 1-JDC, May 6, 1976, was issued in error.
It was alleged that the Respondent failed to submit a respirable dust
sample for a particular miner as required by the provisions of 30 CFR
71.108. After the notice had .issued, it was determined that the
Respondent no longer ~mployed the miner in question. A card had been
sent to MSHA with this information, but it had been misfiled.
The proceeding with respect to this notice was dismissed at the
hearing. This dismissal is ratified here.

c.

Notice of Violation No. 1-LGM (May 12, 1976)

Inspector Maloney issued Notice of Violation No. 1-LGM on May 12,
1976, citing 30 CFR 77,1110. He did so because he observed that the
automatic halogen gas fire-extinguishing unit on the B.E. 1350 W.
dragline did not have a current examination tag. Section 77blll0
requires that an examination of fire extinguishers be carried out

192

every 6 months and that the date of this examination be recorded on
a tag attached to the extinguisher. The last date recorded on the
tag of the halogen unit was October 1975. This failure to examine
the unit and note the examination within 6 months was in violation of
-section 77.1110.
There is no indication on the record that the Respondent was
negligent in its failure to examine the halogen unit and record this
examination on the attached tag.
It is improbable that this violation would result in the occurrence of an accident or injury. The inspector believed that the
halogen unit was operational and gauges indicated that its cylinders
were full. The unit protects a 12-foot by 24-foot room where the
7200 volt cable enters the dragline. Moreover, it is only one of a
number of extinguishers on the machine. The other extinguishers were
in good condition and haJ current examination tags.
The operator abated the condition in good faith, once the notice
of violation was issued.

Dw

Notice of Violation No. 1-LGM (May 13, 1976)

Inspector Maloney issued Notice of Violation No. 1-LGM on May 13,
1976, citing 30 CFR 77.604. Section 77.604 requires that trailing
cables be adequately protected to prevent damage by mobile equipment.
The inspector issued the notice when he observed that a power cable
had been damaged by a bulldozer to such an extent that the current
breakers had been tripped and the cable was deenergized. The outer
jacket of the cable was noticeably damaged.
The inspector felt that the best way to avoid this kind of
accident was to provide a spotter for the operator of the
bulldozer.
No showing was made that the operator was negligent in its failure to adequately protect the cable. The person operating the bulldozer should have seen the cable which was clearl.y visible at the
point where it was run over. The cable is black and the sand on
which it lies is light-colored. Yellow flags are also used to mark
the location of the cable. This use of flags was of limited effectiveness because they were frequ~ntly knocked out.
No injury resulted from this accident. When the circuit breaker
system is functioning properly, the cable is deenergized after a small
time lag. An individual sitting on the bulldozer would not be injured.
There was some risk of injury to a person if he were to touch the
bulldozer while standing.on the ground. It was unlikely, however,
that anyone would have been in contact with the machine when it was
in motion.

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This condition was abated with a normal.degree of good faith,
once the notice of violation was issued.
E.

Notice of Violation No. 1-LGM (May 24, 1976)

The inspector issued Notice of Violation Now 1-LGM on May 24,
1976, citing 30 CFR 77.1605(d). He did so after discovering that
the "trouble shooter's" truck did not have an operative audible
warning device. This condition was quickly abated. The inspector
did not find that the condition was of such a nature as could significantly and substantially contribute to the cause and effect of
a mine safety hazard or that it was caused by an unwarrantable failure on the part of the Respondent. The condition was abated within
the time specified by the inspectorw
The operator and MSHA agreed at the hearing to settle this case
for $78, the amount originally assessed by MSHA's Office of Assessments. The settlement was approved by the administrative law judge
at the hearing and this approval is affirmed here.
F.

Notice of Violation No. 3-LGM (May 24, 1976)

Inspector Maloney issued Notice No~ 3-LGM on May 24, 1976, citing 30 CFR 77. lllOw He did so when he observed that the fire
extinguisher on the "trouble-shooter's" truck had not been inspected
in the prior 6 months. The·order was terminated within 3 hours of
its issuance. The inspector did not find that the condition was of
such a nature as could significantly and substantially contribute to
the cause and effect of a mine safety hazard or that it was caused
by an unwarrantable failure on the part of the Respondent.
At the hearing, the operator and MSHA agreed to settle this case
for $55, the amount originally assessed by MSHA's Office of Assessmentsw This settlement was approved at that time by the administrative law judge and this approval is affirmed here.

G.

Notice of Violation Now 1-LGM (May 25, 1976)

The inspector issued Notice of Violation No. 1-LGM on May 25,
1976, citing 30 CFR 77.410w He issued the notice because he discovered that a four-wheel drive buggy had a nonoperational backup
alarm. The inspector based his decision that a backup alarm was
necessary on the type of equipment involved and the visibility from
the operator's seat• In this instance, the operator of the vehicle
would be unable to see an individual iunnediately behind the vehicle
if that individual was crouching, kneeling, or on the ground.
Because the operator's vision was impaired, the absence of an
automatic backup alarm was in violation of section 77.410.
There was no negligence on the part of the Respondent in its
failure to equip the buggy in question.with an operable backup alarm.

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The truck was equipped with an alarm, but it was not functioning.
No showing was made which would establish when the warning device
stopped functioning. Although it is probable that the driver of
the vehicle knew the horn was not working, there is no evidence
that the Respondent or any of its agents, knew or should have known
of the problem.
It is improbable that this violation would result in accident
or injury. Only a small area immediately behind the machine could
not be seen from the operator's seat.
The parties stipulated that the Respondent demonstrated a
normal degree of good faith in abating this condition, once the
notice of violation was issued~
·
H.

Notice of Violation No. 1-LGM (August 16, 1976)

The inspector issued Notice No. 1-LGM on August 16, 1976, citing
30 CFR 77.1004(b). This section requires that overhanging highwalls
and banks shall be taken down and other unsafe ground conditions
shall be corrected promptly, or the area shall be posted. The inspector discovered visible cracks at the top of the highwall, a few feet
from the edge. In addition, a seam of sand with water running through
it undercut the top of the highwall. Because of these conditions,
the inspector believed that the highwall was unstable. Immediately
prior to the issu~nce of the order, one of Respondent's operations
foremen brought two employees into the area and began to post it.
The inspector felt that the unstable condition of the highwall had
developed prior to the beginning of the shift, and that it had not
been posted in a timely fashion. The failure to correct the condition or to post the area of the unstable highwall in a timely
fashion was in violation of section 77.1004(b).
There is no e-vidence on the record which would indicate that the
Respondent negligently violated ~ection 77.1004(b).
It is improbable that an accident and injury would have occurred
. because the area in question was not marked off. There was no pedestrian traffic in the area. The coal trucks which passed the highwall
did so on the spoils side of the cut, at least 60 feet from the wall.
Men are required periodically to walk in the area threatened in order
to set pumps. There are safety procedures which must be followed at
.these times, including the requirement that one man watch the highwall at all times for sloughage. These procedures make it improbable that a pump setter would be injured.
This condition was abated with a normal degree of good faith.

195

I~

Notice of Violation No. 2-LGM (August 16, 1976)

Inspector Maloney issued Notice No. 2-LGM on August 16, 1976,
immediately after he issued Notice No~ 1-LGM~ He again cited section
77.404(b) because he believed that a section of Respondent's
highwall was unstable. The notice dealt with a separate pit along
the same highwall approximately one-half mile down from the area
at which the first notice was directed~ The inspector believed the
second area to be worse than the firstw The upper portion of the
highwall had been undercut by ground water. The inspector observed
a section of wall break and fall while he was in the areaw A violation of section 77.404(b) existed in this instance because the
area was unpasted even though the highwall was in an unstable
condition.
No sh6wing was made that the Respondent was negligent in its
failure to post this area, as required by section 775404(b).
It was improbable that this violation would have resulted in
inJury. As discussed above, coal-bearing trucks do not travel
within 60 feet of the highwall and safety procedures were in effect
to prevent an accident when pumps are reset in the area¥ Immediately prior to the inspector's arrival in this pit, a loading
shovel had been moved through the area~ Because of this, it was
necessary for four of Respondent's employees to carry cable past
the affected area on the highwall side of the pit~ As a safety precaution, one of these employees did nothing but watch the highwall
for hazardous areas, in order to give warning if sloughage occurred.
This condition was abated with a normal degree of good faith,
once the notice of violation was issuedw
J.

Notice of Violation No. 1-LGM (September 29, 1976)

Inspector Maloney issued Notice No* 1-LGM on September 29, 1976,
citing 30 CFR 77.1109(c)(l). The notice was issued because a "cherry
picker" which was being operated in the 001 pit was not equipped with
a fire ·extinguisher. The inspector did not find that the condition
was of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety hazard or that it
was caused by an unwarrantable failure on the part of the Respondent.
This violation was immediately abated.
At the hearing, the parties agreed to settle this case for $78,
the amount originally assessed by the MSHA Office of Assessments.
The administrative law judge approved the settlement at that time.
This approval is affirmed here.

196

K¥

Notice of Violation No. 2-LGM (September 30, 1976)

Notice of Violation No. 2-LGM was issued by Inspector Maloney on
September 30, 1976. The inspector cited 30 CFR 77 .. 513 which reads
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., 11
(Emphasis added.) The inspector issued the notice because the Respondent had not placed electrically nonconductive material on the floor
at the power switch for the dust suppression system. The power switch
was located on the ground floor of a crusher plant and a considerable
amount of water was present on the floor around it. The switchboard
in question had two grounding systems. There was·a grounding system
for the conduit and case, and a separate system for the conductors
themselves.
The inspector believed at the time he issued the notice that the
power switch itself presented a shock hazard arid that this hazard
was aggravated by the wet floor. He did not examine the switchboard's grounding systems. At the hearing, he admitted that he no
longer believed the condition presented a hazard. Section 77.513
requires nonconductive platforms or mats only if a shock hazard
exists. A violation of this section is not evident here because
no shock hazard ex.isted ..
Docket No. DENV 78-487-P
Seven alleg~d violations of mandatory standards are included
within Docket No. DENV 78-487-P. Each of these alleged violations
was the object of a 104(b) notice of violation issued at Respondent's Monticello Fuel Facilities Strip Mine. These notices are
discussed below in the order of their issuance.
A.

Notice of Violation No .. 1-CH (December 28, 1976)

Inspector Clarence Horn issued Notice No~ 1-CH on December 28,
1976, during the course of a spot electrical inspection. He cited
30 CFR 77.902 which· requires that three-phase, low-voltage resistancegrounded systems to portable and mobile equipment shall include a
fail-safe ground check circuit or other no less effective device to
monitor continuously the grounding circuit to assure continuity.
The inspector issued this notice after observing two portable welders
.were without a fail-safe monitoring device on their ground circuit~
These welders were located at the field house between pits A and c.
The power to these welders was supplied from a portable transformer
through a 440-volt three-phase, resistance-grounded system. The
transformer was equipped with a ground circuit breaker, but it was
not hooked up to the welders.
The two welders were low-voltage, portable equipment and were
subject to the provisions of section 77,902. The inspector based

197

his conclusion that this equipment was portable on the manner in
which the welders were wired. · The absence of a monitoring device
on these two welders was in violation of section 77.902~
The operator was negligent in its failure to provide a ground
monitor on this equipmentw Inspector Maloney was told by David
Nesmith, fuel engineer at Respondent's mine, that the monitoring
circuit was no't hooked up because it could not be stopped from
tripping out. The operator knew of the absence of a ground monitor
on this equipment, yet continued to operate it.
In order for an accident and injury to occur, two events would
have to occur simultaneously. A ground failure would have to occur
at the same time as a phase-to-ground fault. The inspector testified
that such an occurrence was probable. At least two of Respondent's
employees were subjected to the hazard in question. If a phase-toground fault occurred, the frame of the welders would be charged
with 227 volts.. An individual who came into contact "with the frame
could be severely injured,
The operator demonstrated good faith in abating the condition,
once the notice of violation was issued.
B.

Notice of Violation No~ 1-LGM (January 5, 1977)

Inspector Maloney issued Notice No. 1-LGM on January 5, 1977,
citing 30 CFR 77~1607(a). The inspector issued the notice because
a coal haulage truck was not properly trimmed so as to prevent coal
from falling off. The inspector did not find that the condition was
of such a nature as could significantly and substantially contribute
to the cause and effect of a mine safety hazard or that it was
caused by an unwarrantable failure on the part of the Respondent.
The condition was abated within the time specified by the inspector~
At the hearing, the parties agreed to settle this case for $115,
the amount originally proposed by MSHA' s Office of Assessments.- The
settlement was approved at that time by the administrative law judge~
This approval is affirmed here~

c.

Notice of Violation No. 2-LGM (January 5, 1977)

Inspector Maloney issued 104(b) Notice of Violation Now 2-LGM
on January S, 1977. He cited 30 CFR 77.1605(k). This section
requires that berms or guards shall be provided on the outer banks
of elevated roadways. The notice was issued because the inspector
observed that a 300-foot section of the coal haulage roadway at the
bottom of the No. 3 ramp in pit 001 was without berms or guards on
its outer bank. The roadway turned approximately 90 degrees to the
left at this point and was elevated approximately 15 feet. It was
being used by three 100-ton haulage trucks. Despite its being in

198

the pit, this area was a 11 roadwai' within the meaning of section
77.1605(k). The absence o.f berms or guards in this area was in
violation of section 77.1605(k).
The operator was negligent in its failure to place guards or
berms in this area. It had not done so because it did not consider
this area to be part of the roadway.
The inspector was of the opinion that the berms would not prevent a haulage truck which was out of control from running off the
roadway. However, berms might be of assistance in guiding a truck,
thereby keeping it on the roadway.
The operator demonstrated good faith in abating the condition,
once the notice of violation was issued.
D.

Notice of Violation No. 1-LGM (January 6, 1977)

Inspector Maloney issued Notice No. 1-LGM on January 6, 1977,
citing 30 CFR 77.409(b). This section requires that handrails shall
be provided around all walkways and platforms on shovels. The notice
was issued because the inspector observed one handrail to be missing
and another to be damaged on Respondent's loading shovel in pit 002.
These handrails had been struck and damaged by parts of the shovel
which perform the function of running the bucket in and out when the
shovel is in operation.
At the time the not.ice was issued, the shovel had been walked
out of the pit a distance of 200 to 300 feet. The machine had been
taken out of service in order to allow repairs to be made. One of
the repairs to be made was the replacement of these handrails. The
inspector testified that he would not have issued the citation if
his supervisor had not been there with him.
In view of the. above, no violation of section 77.409(b) existed
here. The shovel had been provided with handrails as required, but
these rails were damaged. Thereafter, the machine had been removed
from service so that repairs could be made, including the replacement of these handrails.
E.

Notice of Violation No. 2-LGM (January 6, 1977)

Inspector Maloney issued 104(b) Notice of Violation No. 2-LGM
on January 6, 1977, citing 30 CFR 77.1607(d). This section requires
that cabs of mobile equipment shall be kept free of extraneous materials. The inspector issued the notice because he observed goggles,
rubber gloves, air hoses, rive welding rod cans, rags, four aerosol
cans, and a headlight lying on the floorboard inside the cab of a
boom truck. This truck was being used in pit 002 at the time the
notice was issued.

199

No showing was made that the Respondent knew or should have
known of the failure to keep the truck's cab free of extraneous
materials. The record does not contain evidence of the length of
time which the materials had been left in the cab and these materials could be observed only when the cab door was open.
The inspector testified that this material presented a hazard
because it might strike the operator of the truck if it ever overturned. It is improbable that this condition would cause accident
or injury. The truck was not moving at the time the condition was
observed by the inspector. Even if it was moving, it is highly
unlikely that it would overturn under the circumstances.
The operator demonstrated a normal degree of good faith in
abating the condition, once the notice of violation was issued.
F.

Notice of Violation No. 1-LGM (January 10, 1977)

Inspector Maloney issued 104(b) Notice No. 1-LGM on January 10,
1977, citing 30 CFR 77.1605(a). This section requires that cab
windows be of safety glass or equivalent, in good condition. The
inspector issued this notice when he observed a shattered upper right
side window in the cab of a coal haulage truck. Gray tape was used
to hold the window together, further obscuring the truck operator's
vision. The operator of the truck agreed with the inspector that
the cracked window and tape obscured his vision.
The operator was negligent in its violation of this safety standard. Even though the condition was readily observable, the operator failed to replace the window.
It was improbable that an accident and injury would occur bec~use
of this condition. The driver of the truck did not feel that the
window interfered with the truck's operation. The righthc:tnd,window
was seldom used in maneuvering.
The Respondent demonstrated a normal degree of good faith in
abating the condition.
G.

Notice of Violation No. 2-LGM (January 10, 1977)

Notice of Violation No. 2-LGM was issued by Inspector Maloney on
January 10, 1977. He cited 30 CFR 77.1605(b) which requires that
front-end loaders shall be equipped with parking brakes. The inspector issued this notice when he observed a front-end loader which was
~ot equipped with an operative parking brake. This condition was
abated by the following day with the installation of a new parking
brake. The inspector did not find that the condition was of such a
nature as could significantly and substantially contribute to the
cause and effect of a mine safety hazard or that it was caused by an
unwarrantable failure on the part of the Respondent~

200

The parties agreed to settle this case at the hearing for $98, the
amount proposed by MSHA's Office of Assessments.. The administrative
iaw judge approved the settlement at that time.. This approval is
affirmed here.
Docket No. DENV 78-491-P
Nine alleged violations of mandatory standards are included
within Docket N6. DENV 78-491-P. Each of these alleged violations
was the object of a 104(b) notice of violation issued at Respondent's Big Brown Strip Mine. The Big Brown Strip Mine is located
in Fairfield, Texas, produces from 4 to 5 million tons per year of
lignite, and employs approximately 300 men. There were 16 prior
paid violations at this mine between August 18, 1975, and June 16,
1977.
The notices are discussed below in the order of their issuance.
A~

Notice of Violation No. 3-JF (March 29, 1976)

Inspector John Franco issued Notice No .. 3-JF on March 29, 1976,
citing 30 CFR 77.505. This section requires that cables shall enter
metal frames, splice boxes, and electrical compartments only through
proper fittings. The inspector issued the notice when he observed
that the fittings around a cable were not secured with proper fittings where the cable entered the frame of a circuit breaker. The
cable was comprised of two segments. The first segment, the trailing cable, led from the dragline to the circuit breaker. The second
segment, the power cable, led from the circuit breaker to the main
power source. Wooden fittings had been placed around the cable at
both entry points, but they were not bolted or clamped to the cable.
The Respondent was negligent in its failure to secure the cable
with proper fittings. The inspector was of the opinion that the fittings had never been secured. Moreover, the condition was readily
observable. The Respondent should have known of the condition.
It was improbable that an accident would occur.
the cables was observed.

No damage to

The condition was abated with a normal degree of good faith ..
B..

Notice of Violation No. 1-LGM (July 28, 1976)

Inspector Maloney issued 104(b) Notice of Violation No,. 1-LGM
on July 28, 1976, citing 30 CFR 77 .. 1605(a). The inspector issued
this notice because the front windshield on a grader had shattered
badly. It had shattered to the extent that the wiper blades would
be· damaged if used. At the time the notice was issued, the window
had been raised. The condition was clearly in violation of section
77.1605(a), which requires that cab windows be kept in good condition.

201
)

No showing was made that the Respondent was negligent in its
failure to maintain the cab window in good conditionw The inspector
testified that he was unsure whether the Respondent knew of the condition and he did not give an indication of the length of time which
the windshield had been damaged.
It was improbable that the shattered windshield would lead to an
accident or injury. Because the windshield was up, its condition did
not reduce visibility. The weather conditions were not such that the
operator would need to lower the windshield.,
The operator demonstrated a normal degree of good faith in
abating this.condition, once the notice of violation was issued.
C.

Notice of Violation No. 1-LGM (August 4, 1976)

This notice of violation was issued on August 4, 1976. The
inspector cited 30 CFR 77.1110, which requires that an examination of
fire extinguishers be carried out once every 6 months, and that the
date of this examination be recorded on a permanent tag attached to
the extinguisher •. The inspector issued the notice when he observed
that the fire extinguisher on the trouble-shooter's truck did n6t
have an attached tag. He did not find that the condition was of such
a nature as could significantly and substantially contribute to the
cause and effect of a mine safety hazard, or that the violation was
caused by an unwarrantable failure on the part of Respondent., The
condition was abated within the time prescribed by the inspector.
The parties agreed at the hearing to settle this case for $61,
the amount originally assessed by MSHA's Office of Assessments.
lhis settlement was approved by the administrative law judge at the
hearing. This approval is affirmed here.
D.

Notice of Violation No. 2-LG:M (December 20, 1976)

Inspector Maloney issued Notice of Violation No~ 2-LGM on
December 20, 1976, citing 30 CFR 77.400(a). He issued the notice
~fter he observed that the V-belt and pulleys on a gasoline motor
and air compressor mounted on the bed of a service truck were
unguarded. The inspector did not find that the condition was of
such a nature as could significantly and substantially contribute
to the cause and effect of a mine safety hazard or that it was
caused by unwarrantable failure on the part of the Respondent. The
c~ndition was abated within the time prescribed by the inspector.
The parties agreed at the hearing to settle this case for $90,
the amount originally.assessed by MSHA's Office of Assessments. This
settlement was approved by the administrative law judge at the hearing. This approval should be affirmed here.

202

E.

Notice of Violation No. 1-LGM (December 22, 1976)

Inspector Maloney issued Notice No. 1-LGM on December 22, 1976,
citing 30 CFR 77.1104. The inspector issued the notice when he
observed that the ground in the area of the storage tanks was
saturated with diesel fuel. Diesel fuel oozed from the ground when
the inspector kicked away a surface layer of pea gravel. The i~spec·tor did not observe an ignition source in the area and warning signs
against smoking and open flames were present. This accumulation of
·diesel fuel was in violation of section 77.1104.
It was improbable that an accident would occur because of the
absence of ignition sources~ Fire extinguishers are set in the area
to stop fire which occurred outside the tanks. However, if a fire
were to occur within the tanks, it ·could not be stopped.
No negligence on the part of the Respondent was shown. The
inspector testified that the condition was not readily observable.
People did not walk in the area on a regular basis.
The condition was abated with a normal degree of good faith, once
the notice was issued.
F~

Notice of Violation No~ 4-LGM (February 17, 1977)

Inspector Maloney issued Notice of Violation No. 4-LGM on
February 17, 1977, citing 30 CFR 77.1607(d). This section requires
that cabs be kept free of extraneous material. The inspector issued
the notice when he observed extraneous items in the cab of a truck
being used by welders. These extraneous materials were as follows:
welding rod containers, tank regulators, a cutting torch, a ~qelding
hood, a jumbo air chuck, a fire extinguisher and other miscellaneous
materials. The inspector did not find that the condition was of such
a nature as could significantly and substantially contribute to the
cause and effect of a mine safety hazard or that the condition was
caused by an unwarrantable failure on the part of the Respondent~
The condition was abated within the time limit prescribed by the
inspector.
The parties agreed at the hearing to settle this case for $74,
the amount originally assessed by MSHA's Office of Assessments using
the approved formula. This settlement was approved at the hearing
by the administrative law judge. This approval is affirmed here.
G.

Notice of Violation No. 1-LGM (March 9, 1977)

Inspector Maloney. issued Notice No. 1-LGM on March 9, 1977-, citing
30 CFR 77.1110. He issued the notice when he observed that a permanent
tag recording a current examination date had not been attached to the
fire extinguisher in a coal haulage truck. The inspector did not find

203

that the condition was of such a nature as could significantly and
substantially contribute to the cause and effect of a mine safety hazard or that it was caused by an unwarrantable failure on the part of
the Respondent. The condition was abated within the time specified by
the inspector ..
The parties agreed at the hearing to settle this case for $74,
the amount originally assessed by MSHA's Office of Assessments~ This
settlement was approved by the administrative law judge at the hearing. This approval is affirmed here.
H..

Notice of Violation No. 2-LGM (March 9, 197i)

Inspector Maloney issued Notice No. 2-LGM on March 9, 1977,
citing 30 CFR 77.1110. He issued this notice when he observed that
the extinguisher on a coal haulage truck did not have an examination
date tag affixed to it and its pin had been pulled. The inspector
did not find that the condition was of such a nature as could significantly and substantially contribute to the cause and effect of
a mine safety hazard or that it was caused by unwarrantable failure
on the part of the Respondent. The condition was abated within the
time prescribed by the inspector.
The parties agreed at the hearing to settle this case for $46,
the amount originally assessed by MSHA's Office of Assessments. This
settlement was approved by the administrative law judge at the hearing. This approval is affirmed here.
I.

Notice of Violation No. 1-LGM (March 10, 1977)

Inspector Maloney issued Notice No. 1-LGM on March 10, 1977,
citing 30 CFR 77.204(b). He issued the notice when he observed a
buildup of grease in two places along a catwalk which went up the
boom on the dragline. The grease covered steps and handrails in
the affected area.
At the hearing, the inspector testified that he had incorrectly
cited 30 CFR 77.204(b) in the notice when he had intended to cite
30 CFR 77.205(b). Because of this, the parties agreed to settle this
case for $25, rather than the $58 originally assessed by MSHA's Office
of Assessments.
There is no indication on the record that this was a serious violation or one involving negligence on the part of the Respondent. The
condition was abated within the time prescribed by the inspector.
This settlement was approved at the hearing by the administrative
law judge. This approval is affirmed here.

204

Docket No. DENV 78-492-P
Three violations of mandatory standards are included within
Docket No. DENV 78-492-P~ Each of these alleged violations was the
object of a 104(b) notice of violation issued at Respondent's Big
Brown Strip Mine. These notices are discussed below in the order
of their issuancew
A..

Noti~e

of Violation No. 3-LGM (March 14, 1977)

Inspector Maloney issued Notice No. 3-LGM on March 14, 1977,
citing 30 CFR 77 .. 1102. The inspector issued this citation when he
noted that s service truck was equipped with a sign ~arning against
smoking, but not with one warning against open flame. At the time
the notice was issued, the truck had been hauling a quantity of oil
and diesel fuel on the mine haul road. Section 77 .. 1102 requires
that signs warning against smoking and open flame be posted so that
they can be readily seen in places where fire or explosion hazards
exist. In view of the cargo carried by the truck, the failure to
equip it with a sign warning against open flame was in violation of
section 77 .1102.
The inspector did not find that the condition was of such a
nature as could significantly and substantially contribute to the
cause and effect of a mine safety hazard or that it was caused by
an unwarrantable failure on the part of the Respondentw The condition was abated with a normal degree of good faith.
The parties agreed at the hearing to settle this case for $46,
the amount originally assessed by MSHA's Office of Assessments~ This
settlement was approved by the ~dministrative law judge at the hearing. This approval is affirmed here.
B~

Notice of Violation Now 1-LGM (March 16, 1977)

Inspector Maloney issued Notice No. 1-LGM on March 16, 1977,
citing 30 CFR 77.1607(p). While in the Now 2 pit, the inspector
stopped a front-end loader which had been loading coal. The operator of the vehicle left the cab and stepped to the ground without
lowering the bucket to the ground first. The bucket remained
suspended approximately 3-1/2 feet in the air. This failure to
lower the bucket was in violation of section 77.1607(p) which
requires that "buckets * * * shall be secured or lowered to the
ground when not in use."
No negligence existed on the part of the Respondent. It was
not a policy at the mine to allow buckets to remain suspended when
not in uses This violation was the fault of the machine operator.
It was improbable that the machine operator's failure to lower
this bucket would cause accident or injury. There were four people

205

in the area at the time the violation occurred. All four were immediately aware of the condition and the danger presented by it.
The condition was abated immediately.

c.

Notice of Violation No. 1-LGM (June 16 1 1977)

Inspector Maloney issued Notice lfo,. 1-LGM on June 1'6 1 1977,
citing 30 CFR 77.1605(a). The inspector issued the notice because
the bottom windows in the cab doors of a bulldozer had been removed.
These windows had been removed by the machine operator to allow
better ventilation of the cab. The absence of this glass was technically a violation of section 77.1605.
It is improbable that this violation would cause accid_ent or
inJury. The ~nspector testified that he saw very little danger
to be presented by this condition.

The inspector had no knowledge of the length of time the window
had been ~issing.
The Respondent demonstrated good faith in abating the condition,
once the notice of violation was issued.
There is no evidence that any penalty which might be assessed~
in the cases discussed above would affect Respondent's abili,ty to
continue in business.
Penalties
In consideration of the findings of fact and conclusions of law
in this decision based on stipulations and evidence of record; the
following assessments are appropriate under the criteria of section
109(a) of the Act.
Docket No. DENV 78-51-P
Notice of Violation No. 2-LGM (May 17, 1977)

$100

Docket No. DENV 78-485-P
Notice of Violation No. 2-LGM (September 15, 1976)
Notice of Violation No. 5-LGM (September 15, 1976)
Notice of Violation No. 1-LGM (September 16, 1976)

$24
$28
$28

Docket No. DENV 78-503-P
Notice of Violation No. 1-LGM (October 12~ 1977)

206

$82

Docket No. DENV 78-486-P
Notice of Violation No .. 1-JF (March 4, 1976)
Notice of Violation No. 1-LGM (May 12, 1976)
Notice of Violation No. 1-LGM (May 13, 1976)
Notice of Violation No. 1-LGM (May 25, 1976)
Notice of Violaton No .. 1-LGM (August 16, 1976)
Notice o'f Violation No .. 2-LGM (August 16, 1976)

$61
$55
$74
$78
$78
$78

Docket No .. DENV 78-487-P
Notice of Violation No .. 1-CH (December 28, 1976)
Notice of Violation No. 2-LGM (January 5, 1977)
Notice of Violation No .. 2-LGM (January 6, 1977)
Notice of Violation No. 1-LGM (January 10, 1977)

$98
$120
$90
$90

Docket No. DENV 78-491-P
Notice of Violation No .. 3-JF (March 29, 1976)
Notice of Violation No., 1-LGM (July 28, 1976)
Notice of Violation No. 1-LGM (December 22, 1976)

$110
$78
$86

Docket No. DENV 78-492-P
Notice of Violation No .. 1-LGM (March 16, 1977)
Notice of Violation No .. 1-LGM (June 16, 1977)

$90
$64

Settlements
The settlements discussed ab6ve were negotiated and approved
in conformance with the statutory criteria for assessment of civil
penalties.. In each instance, the approval of settlement by the
administrative law judge at the hearing is affirmed here.. The
settlements and corresponding penalties are as follows:
Docket No .. DENV 78-485-P
Notice of Violation No. 2-LGM (February 2, 1977)

$43

Docket No. DENV 78-486-P
Notice of Violation No .. 1-LGM (May 24, 1976)
Notice·of Violation No., 3-LGM (May 24, 1976)
Notice of Violation No., 1-LGM (September 29, 1976)

$78
$55
$78

Docket No .. DENV 78-487-P
Notice of Violation No., 1-LGM (January 5, 1977)
Notice of Violation No .. 2-LGM (January 10, 1977)

207

$115
$98

Docket No. DENV 78-491-P
Notice of Violation No .. 1-LGM (August 4, 1976)
Notice of Violation No. 2-LGM (December 20, 1976)
Notice of Violation No. 4-LGM (February 17, 1977)
Notice of Violation No,, 1-LGM (March 9, 1977)
Notice ;of Violation No., 2-LGM (March 9, 1977)
Notice of Violation No. 1-LGM (March 10, 1977)

$61
$90
$74
$74
$46
$25

Docket 'No. DENV 78-492-P
Notice of Violation No .. 3-LGM (March 14, 1977)

$46

ORDER
The civil penalty proceeding with respect to Notice of Violation
No .. 1-JDC (May 6, 1976), Notice of Violation No. 2-LGM (September 30,
1976), and Notice of Violation No. 1-LGM (January 6, 1977), are
hereby DISMISSED,,
With respect to the remaining notices of violation included
within the above-captioned civil penalty proceedings, it is ORDERED
that payment in the amount of $2,395 be made within 30 days of the
date of this decision.,

Forrest E. Stewart
Administrative Law Judge
Issued:

April 5, 1979

Distribution:
John H. O'Donnell, Esq., Mine Safety and Health Administration,
Office of the Solicitor, u.s .. Department of Labor, 4015 Wilson
Blvd,,'· Arlington, VA 22203
Richard L. Adams, Esq., Worsham, Forsythe & Sampels, 2500-2001
Bryan Tower, Dallas, TX 75201 (Certified Mail)
·Administrator, Coal Mine Safety and Health, U.S. Department of
Labor
Standard Distribution

208

FEDERAL MINE SAFETY AND HEALTH R'EVIE\V COl\1MISSION
OFFICE Of ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGIN IA 22203

April 6, 1979

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

Civil Penalty Proceeding
Docket No. HOPE 78-511-P
A/O No. 46-01616-02018V

v.
No~

2-A Mine

PEERLESS EAGLE COAL CO.,
Respondent
DECISION AND ORDER APPROVING SETTLEMENT

~

Appearances:

John H. O'Donnell, Trial Attorney, Office of the
Solicitor, Department of Labor, Arlington, Virginia,
for petitioner;
Donald Lambert, Esq., ,Charleston, West Virginia, for
respondent.

Before:

Judge Koutras

This proceeding concerns a petition for assessment of civil penalty filed by the petitioner on June 13, 1978, pursuant to section
llO(a) of the Federal Mine Safety and Heal th Act of 1977, seeking
civil penalty assessments for three alleged violations of 30 CFR
75.200, namely a $3,600 civil penalty assessment for 104(c)(2) Order
No. 7-0008 (1 JDD), January 26, 1977, a $4,000 civil penalty assessment for Order No. 7-0011 (2 JDD), January 26, 1977, and a $5,000
civil ~enalty assessment for Order No. 7-0013 (3 JDD), January 26,
1977. Petitioner has filed a motion pursuant to Commission Rule
29 CFR 2700.27(d), seeking approval of a proposed settlement, whereby
respondent has agreed to payment of a civil penalty in the amount of
$1,800 for Order No. 7-0008 (1 JDD), $2,000 for Order No. 7-0011
(2 JDD), and $2, 500 for Order No. 7-0013 (3 JDD).
In support of its motion for approval of the proposed settlement, petitioner has submitted proposed findings and conclusions with
respect to. the statutory criteria to be considered in the assessment of
civil penal ties for the ··· iolations. Counsel for petitioner has
further stated that he has discussed in depth the Office of Assessment's Narrative Statement with Federal coal mine inspector John D.
Dotson and the inspector does not agree with the facts set forth by
the Office of Assessments.
·

209

Gravity, Negligence and Good Faith
Order of Withdrawal No. 1 JDD (7-8) (Order No. 7-0008)
The subject order alleged that the roof support plan was not
being followed on the 4th East Section to a point approximately
150 feet outby the belt fender in that a boom hole had been shot out
in the mine roof and the roof bolts were installed 5-1/2 to 6 feet
apart, whereas the roof support plan required that they be set on
4-foot centers lengthwise and crosswise. Petitioner asserts that the
mining height in the No. 2-A Mine is low so areas must· sometimes be
dug out of the roof into the rock so certain machinery or activities
can have enough height to be performed--these holes into the rock are
called "boom holes''. To make a boom hole, of course, the existing
roof bolts in that area must be removed and then should be replaced
in the boom rock hole. The roof bolts had been replaced in the boom
hole a greater distance apart than allowed by the roof control plan
(Govt. Exh. No. P-3.). According to petitioner, Inspector Dotson
would deny that the area had been mined wider than allowed as stated
in the Narrative Statement of the Office of Assessments (Govt. Exh.
No. P-9). The violation was not having the roof bolts in the boom
hole close enough together. Inspector Dotson is of the opinion that
no miner was endangered although any of 14 miners could be injured or
killed in the unlikely event the boom hole roof did fall.
Petitioner maintains that the mine operator knew the requirements of its roof control plan and the violation is the result of
ordinary negligence. The condition was abated in 3 hours which
demonstrated a normal degree of good faith.
Order of Withdrawal No. 2 JDD (7-11) (Order No. 7-0011)
The above order again alleged that the roof control plan was not
being followed in the 4th East Section in that a boom hole had been
dug out of the mine roof to allow enough height and the roof bolts
had either not been reinstalled or were installed too far apart.
There were no excessive widths mined in a roadway as stated in the
Office of Assessment's Narrative Statement.
P~titioner maintains that Inspector Dotson is of the opinion
that two workers were exposed to probable risk by reason of the condition. Since respondent knows the requirements of its roof control
plan, ordinary negligence was demonstrated.

With respect to a showing of good faith on the part of respondent, the condition was abated in less than 3 hours, which demonstrates a normal degree of good faith.

210

Order of Withdrawal No. 3 JDD (7-13) (Order No. 7-0013)
The above order alleged that the roof control plan was not being
followed in the No. 2 Entry in the 4th East Section in that the roof
bolts were spaced further apart than the plan called for. But again,
petitioner asserts that there were no excessive widths in the roadway
as mentioned in the Narrative Statement of the Office of Assessments.
However, the roof was drummy. According to petitioner, the condition
is the result of ordinary negligence for the same reasons stated in
discussing the above two orders of withdrawal. Petitioner further
submits that the condition was abated the following day which demonstrates a normal degree of good faith.
·
·size of Business
Petitioner asserts that there is a 1 imited present market for
the quality of coal produced by the No. 2-A Mine, but the respondent can still· pay any reasonable amount that may be assessed for
each of the three violations under consideration, without an adverse
effect on its business.
Previous History
Petitioner has submitted a computer printout concerning respondent's prior history of violations for the period January 1, 1970,
to January 26, 1977. During this 7-year period, there have been
eight prior 30 CFR 75.200 violations, and a total of 280 prior violations of all types. I cannot conclude that this constitutes a significant prior history of violations.
ORDE;R
After careful consideration of the detailed analysis submitted
by the petitioner in support of its motion, pai;ticularly with respect
to the question of gravity, good faith compliance, and respondent's
size and history of prior violations, I conclude that petitioner's
proposed civil penalty as~essment is reasonable in the circumstances
presented. Accordingly, the settlement is approved, and respondent
IS ORDERED to pay for violations of 30 CFR 75. 200 a civil penalty in
the amount of $1,800 for Order No. 7-0008 (1 JDD), January 26, 1977,

211

·I

$2,000 for Order No. 7-0011 (2 JDD), January 26, 1977, and $2,500 for
Order No. 7-0013 (3 JDD), January 26, 1977, within thirty (30) days
of the date of this decision and order.

Distribution:
John H. O'Donnell, Trial Attorney, Office of the Solicitor,
MSHA, U.S. Department of Labor, 4015 Wilson Blvd.,
Arlington, VA 22203
Donald Lambert Esq., P.O. Box 4006, Charleston, WV 25304
(Certified Mail)
Standard Distribution

212

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

April 9, 1979

CLIMAX MOLYBDENUM COMPANY,
A division of AMAX, Inc.,
Applicant
v.

Applications for Review
Docket No. DENV 78-556-M
Citation No. 331770
August 2, 1978.

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

Docket No. DENV 78~562-M
Citation No. 333299
August 7, 1978

CLIMAX MOLYBDENUM WORKERS,
LOCAL NO. 2-24410, OIL,
CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION,
Respondent

Climax Mine

DECISION GRANTING MOTIONS TO DISMISS
Appearances:

William F. Schoeberlein, Esq., Charles W. Newcom, Esq.,
Dawson, Nagel, Sherman & R,oward, Denver, Colorado, for
Applicant;
Robert A. Cohen, Esq., Office of the Solicitor, Department of Labor, for Respondent, MSHA;
Edward L. Farley, Leadville, Colorado, for Respondent,
Oil, Chemical and Atomic Workers International Union,
Local No. 2-24410.

Before:

Judge Cook

Applications pursuant to section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(d) (1977 Mine Act),
for review of citations issued pursuant to section 104(a) of the
1977 Mine Act, were filed for Climax Molybdenum Company (Climax).
On February 15, 1979, MSHA filed motions to dismiss these proceedings in which it was alleged that the citations involved have
been fully abated and that such citations have been terminated.
Those motions went on to state, in part, as follows:

213

*

*

*

*

*

*

*

2. The Board of Mine Operations Appeals in considering
a similar review provision in the Federal Coal Mine Health
and Safety Act of 1969 (1969 Act) (Secw 105(a)) held that
Citations such as the subject one (104(b) Notices in the
1969 Act) could not be reviewed after the cited violation
had been abated because there no longer existed an issue for
review. Reliable Coal Corporation, 1 IBMA 50, 59 (197l)w
3. The 1977 Act likewise does not provide for review
of an abated Citation, and provides for review of an unabated
citation only as to whether or not the time for abatement is
reasonable. Helve~ia Coal Company, PITT 78-322 (August 23,
1976); Monterey Coal Company, VINC 78-372 (June 19, 1978);
Peter White Coal Mining CorP..!_, HOPE 78-371 (June 16> 1978);
Itmann Coal Co., HOPE 78-356 (May 26, 1978).
Climax filed a memorandum in response to such motions on
February 28, 1979. In that memorandum Climax agreed that such
citations had been abated, but set forth legal arguments in opposition to such motions~
The motions to dismiss will be granted because Climax in these
proceedings is apparently not now chall~nging the reasonableness of
the length of abatement time fixed in the citations and the Applicant
is premature as to a review of the citations on any other issue.
There is no showing that a notice of proposed assessment of penalty
has been issued in these cases as yet.
Section 104(a) of the 1977 Mine Act provides for the issuance of
citations by an inspector for violations committed by an operator of
a mine.
Section 105(a) of the 1977 Mine Act provides in pertinent part:
If, after an inspection or investigation, the Secretary issues a citatioh o~ 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. * * * 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

214

citation and the proposed assessment of penalty shall be
deemed a final order of the Commission *· * *• [Emphasis
added.]
Section 105(d) of the 1977 Mine Act also sets forth provisions
for the assessment of penalties where the Secretary believes an operator has failed to correct a violation within the period permitted
for its correction. Under this provision, the operator also has
30 days within which .to contest the Secretary's "notification of the
proposed assessment of penalty.''
Section 105(d) of the 1977 Mine Act provides in pertinent part:
If, within 30 days of receipt thereof, an operator of
a coal or other mine notifies the Secretary that he intends
to contest the issuance or modification of an order issued
under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a)
or (b) of this section, or the reasonableness of the length
of abatement time fixed in a citation or modification thereof
.issued under section 104, * * * the Secretary shall immediately advise the Commission of such notification, and the
Commission shall afford an opportunity for a hearing * * *.,
[Emphasis added.]
A study of subsection 105(d) shows that Congress provided for
review to be obtained as relates to three categories of actions taken
by representatives of the Secretary of Labor, First, an operator is
permitted to "contest the issuance or modification.of an order issued
under section 104." Second, an operator is permitted to obtain
review of a "citation or a notification of proposed assessment of a
penalty issued under subsection (a) or (b)" of section 105. Third,
an operator is permitted to obtain review of "the reasonableness of
the length of abatement time fixed in a citation or modification
thereof issued under section 104."
In view of subsection 105(a), the words of subsection 105(d)
referring to review of "a citation or notification of proposed assessment of a penalty issued under subsection (a) or (b) * * *" must be
read to mean that the citation can be reviewed when the notification
of proposed assessment is reviewed.
It is therefore clear that the time for Climax to file an application to review a citation will not begin to run until after a
notice of proposed assessment of penalty has been received by the
operator, except in the instance where the operator intends to con- ·
test the reasonabl~ness of the length of abatement time fixed in the
citation. The issue as to the validity of the citation will then be
determined in the civil penalty proceeding.

215

The operator can then contest both the.fact of violation (i.e.,
the citation) and the amount of the penalty, assuming there is ~ ;iolation. If it fails to file such a notice within 30 days as provided, both the citation and the penalty become a final order of the
Commission.
This interpretation is supported by the legislative history.
An extensive discussion of this history is contained in decisions on
similar motions by Judge Steffey in Itmann Coal Company v. MSHA (HOPE
78-356), dated May 26, 1978, and Judge Merlin in United States Steel
Corporation v. MSHA (PITT 78-335), dated July 11, 1978~
It should be further noted that under the Federal Coal Mine
Health and Safety Act o~ 1969 (1969 Act) notices of violation (citations under the 1977 Mine Act) were not reviewable where abatement
had occurred and no penalty was sought. Freeman Coal Mining Company,
1IBMA1 (1970); Reliable Coal Corporation, 1 IBYiA 50 (1971); Lucas
Coal Company, et al. v. Interior Board of Mine Operations Appeals,
522 F.2d 581 (3rd Cir. 1975).
The Court of Appeals for ~he Third Circuit stated that:
The Board's interpretation here (of section 105 of the
1969 Act as expressed in Freeman and Reliable) is a particulaily acceptable one in view of the safety objectives of the
Act, the obvious desirability of encouraging prompt abatement of violations while still allowing ultimate review, and
the necessity of limiting review in order to permit more
expeditious consideration of serious grievancesw Lucas Coal
Co., v. Interior Board of Mine Operations Appeals, 522 F~2d
581, 587 (1975). (Parenthetical portion added.)
The legislative history of the Federal Mine Safety and Health
Amendments Act of 1977 contains nothing to indicate that Congress
intended to change the Board's interpretation of section 105 of the
1969 Act as stated in Freeman and Reliable. Since all of the alleged
violations were abated, the subject citations may not be reviewed
under section 105(d). The "reasonableness of the length of time set
for abatement by a· citation" is the only issue reviewable in a section 105(d) proceeding to review citations. Abatement of the citation renders the issue of "reasonableness of time" moot. Review of
fact of violation remains available through a challenge to the civil
penalty assessed under section 110.
The Procedural Rules of the Federal Mine Safety and Health Review
Commission contain certain regulations relating to the processing of
applications for review of citations and orders. Part of these rules
are contained in 29 CFR 2700.lB(a). If it were not for the fact that
the intent of Congress is expressed in subsections 105(a) and (b) and
subsection 105(d) of the 1977 Act, it would be possible to argue that

216

29 CFR 2700.18(a) allows review of citations generally rather than
only as to the reasonableness of the length-of abatement time. However, the word "citation" in the regulation cannot be construed to
grant more than the type of review of a citat-ionwhich the statute
itself grants at that stage, and that is a review of the reasonableness of the time for abatement. Unlimited review of the citation will
eventually be obtained, but that will take place during the course of
the civil penalty proceeding.
In view of the statements of the Court of Appeals in Sink v.
Morton, 529_F.2d 601 (4th Cir. 1975), it is clear that no due process
problem arises in this instance.
The court therein noted that the District Court:
[T]hough concluding that the obligation of the plaintiff
to "exhaust his administrative remedies under the Act [was]
entirely reasonable and in accord with accepted principles
of administrative law," held that the plaintiff had made a
showing of irreparable harm, without any countervailing
interests of safety, by reason of the "failure of the Secretary of the Interior to utilize his discretion in order
to provide a hearing before a mine closure order is issued"
and had "had no opportunity to present his case to the
appropriate authorities." For these reasons, it granted
an injunction agains~ the enforcement of the notice and
withdrawal orders "pending a final administrative determination of the isuses involved." [Footnote omitted.]
at 603.
The Court of Appeals ruled that the District Court erred in this
finding. It went on to state:
Nor is it of any moment that the inspector's withdrawal
orders were issued without a hearing. By appeal, the plaintiff can obtain a hearing, which, by the terms of the Act,
is to be held as soon as practicable, and he is accorded the
right to apply, as an incident to that appeal, for a temporary stay of the orders. Such procedure accords the plaintiff due process. Due process does not command that the
right to a hearing be held at any particular point during
the administrative proceedings; it is satisfied if that
right is given at some point during those proceedings.
Reed v. Franke (4th Cir. 1961) 297 F.2d 17, 27.
at 604~

217

Accordingly, MSHA's motions to dismiss are GRANTED. IT I~
THEREFORE ORDERED that the above-captioned proceedings be, and they
hereby are, DISMISSED.

--;_~·~
.---~~
~-

~----,,John F. Coo~--~
-...
~Administrative Law Judge

Issued: _ April 9, 1979
Distribution:
William F. Schoeberlein, Esq., Charles W. Newcom, Esq., Dawson,
Nagel, Sherman & Howard, 2900 First of Denver Plaza, 633 Seventeenth Street, Denver, CO 80202 (Certified Mail)
Robert A. Cohen, Esq., David F. Barbour, Esq., and Edward c.
Hugler, Esq., Mine Safety and Health Administration, Office
of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
David Jones and
Edward L. Farley, Oil Chemical and Atomic Workers International
Union, Local No. 2-24410, P.O. Box 949, Leadville, CO 80461
(Certified Mail)
James F. Engelking, Esq., and l·l. Michael Hackett, Esq., 139li9 West
Colfax Avenue, Golden, CO 80202 (Certified Mail)
Mr. Edwin Matheson, Chairman, International Brotherhood of Electrical Workers, Local Union No. 1823, P.O. Box 102, Minturn,
CO 81645 (Certified Mail)
Ms. Sylvia Balltrip, Office of Professional Employees International Union, Local No. 410, P.O. Box 1179, Leadville, CO
80461 (Certified Mail)

218

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

April 11, 1979

Civil Penalty Proceeding

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

Docket No. PITT 79-11-P
A/O No. 36-00926-03001

v.
Homer City Mine
HELEN MINING COMPANY,
Respondent
DECISION
Appearances:

Leo McGinn, Esq., Office oft.he Solicitor, Department
of Labor, Arlington, Virginia, for Petitioner, MSHA;
Todd D. Peterson, Jones, Day, Reavis and Pogue,
Washington, D.C., for Respondent, Helen Mining Company.

Before:

Judge Merlin
Statement of the Case

This case is a petition for the assessment of a civil penalty
under section llO(a) of the Federal Mine Safety and Health Act of
1977.
MSHA alleges a violation of section 103(f), the "walkaround"
provision of the Act. A hearing was held on March 20, 1979. Both
parties presented oral evidence (Tr. 9-36). At th~ conclusion of the
taking of evidence, counsel waived the filing of written briefs,
presented oral argument, and agreed to have a decision rendered from
the bench (Tr. 36-80). Upon the conclusion of oral argument, a decision was rendered from the bench (Tr. 80-89).
Bench Decision
The bench decision is as follows:
1be issue presented in this case is whether a miner
representative who accompanies an MSHA inspector during
a section 103( i) 11 spot inspection'' is entitled to be
paid pursuant to the provisions of section 103(£) of the
Federal Mine Safety and Health Act of 1977.

219

'lhe facts are undisputed. On April 6, 1978 an
of the Mine Safety and Health Administration
made a spot inspection pursuant to section 103(i) of the
Act. Section 103(i) directs, inter alia, that where a
mine liberates excessive quantities of methane, it shall
be fospected during every five working days.
i~spector

On April 6, 1978 the inspector made a 103(i) inspection and during that inspection was accompanied by a miner
representative for three hours. 1he operator refused to
pay the miner representative for the three hours, resulting in the issuance of the subject citation and order,
and also resulting in the assessment of a civil penalty
and filing of the instant petition.

The evidence also shows that three days earlier, on
April 3, 1978, this inspector had begun a "regular"
inspection of the mine. Section 103(a) requires that
each underground coal mine be inspected in its entirety.
at least four times a year. Each total inspection is of
course done over a period of time, and the individual
inspections which comprise the total inspection are
referred to as "regular;• inspections.
On April 6, 1978 the inspector performed a 103( i)
spot inspection for methane instead of continuing on the
regular inspection which he was performing during that
period. 1he inspector testified, however, that a regular
103( a) inspection and a 103( i) spot inspection could be
going on at the same time with two different inspectors,
and that if this were so, MSHA would require that if
miner representatives accompanied both inspectors, both
miner representatives be paid. Accordingly, it makes no
difference that in this case only the spot inspection
was being performed because it is MSHA's position that
all walkarounds on 103(i) spot inspections must be compensated pursuant to section 103(f). Section 103(f) ·
provides that a miner representative shall be given the
opportunity to accompany the MSHA inspector during the
physical inspection of any coal or other mine made under
section 103( a), and that the miner representative shall
suffer no loss of pay while he so participates in the
ins pee t ion.

It is the operator's position that under 103(f)
it is required to pay only the miner representative who
accompanies an MSHA inspector on a regular inspection,
and that, therefore, it was not required to pay the
miner representative in this case who accompanied the
inspector on a section 103(i) spot inspection.

220

MSHA' s position is that the operator is required
to pay the miner representative who participated for
three hours in the 103(i) spot inspection. As the
Solicitor's oral argument makes clear, MSHA's position
is predicated essentially upon the Interpretive Bulletin
published by the Secretary of Labor at 1-i-3 Federal
Register 17546, April 25, 1978. 1he Bulletin recognizes
that the participation and payment provisions of section
103(f) refer to inspections made pursuant to section
103(a). However, the Bulletin refers to all the purposes enumerated in 103(a) for which inspections are
made, including determinations for inuninent danger and
violations. Since 103(i) spot inspections are made for
the purposes of finding inuninent dangers or violations,
the Bulletin takes the position that a spot inspection
constitutes an inspection under 103(a) for purposes of
the participation and payment provisions of 103(f).
According to the Bulletin, the requirement of four
inspections per year for each mine in its entirety as set
forth in section 103(a) is only a statutory miniml.llll and
has nothing to do with the right of participation or the
right to compensation. It is on this basis that MSHA
contends in this case the operator must pay the miner
representative who accompanied the inspector under 103(i)
spot inspections.
I have carefully considered MSHA's position as
explained here today at length by the Solicitor and as
set forth in the Interpretive Bulletin. I am unable to
accept MSHA' s position. I recognize the Interpretive
Bulletin represents the Secretary's position, and that it
should be reviewed in light of the Secretary's responsibilities under the Act. However, the Interpretive
Bulletin is not binding upon me. This was.expressly
decided by the United States District Court for the
District of Columbia in Bituminous Coal Operators
Association, Inc. versus Marshall and the-United Mine
Workers, Civil Action No. 78-0731, (January ii, 1979).
I must review and judge the Interpretive Bulletin
in light of the language of the statute and the legislative history. The Interpretive Bulletin and the
interpretation advanced by the Solicitor here today in
effect, read section 103(i) back into 103(a). In addition, the Bulletin recognizes that there are other
inspections such as those under 103(g) which are performed at the request of a miner. The Bulletin also
reads these inspections back into subsection (a) by
relying upon the purposes for which such inspections

221

are carried out, i.e., discovering violations or imminent dangers.
'!be insuperable difficulty I have .with this
approach is that if section 103(f) covered all inspections, it could have provided for walkarounds and payments for all inspections without making any reference
whatsoever to subsection (a). Reference to subsection
(a) must be regarded as a limitation because it leaves
out the other subsections pursuant to which inspections
also are undertaken. Any other interpretation renders
the reference to subsection (a) as it appears in subsection ( f) meaningless. Accordingly, reading the other
subsections, such as (i) and (g) back into subsection
(a) -in the manner of the Interpretive Bulletin in
effect violates the language of the statute and the
way it is written and organized. In this connection
also I note that subsection (f) precedes (i) and (g).
I conclude, therefore, that the reference in 103(f) to
inspections under 103( a) means the regular inspections
described in that section.
On this basis, I conclude the operator was not
required to pay for the walkaround in this case, and
that, therefore, there was no violation.

During oral argument great attention was given,
both by the Solicitor and operator's counsel, to the
remarks of Congressman Perkins who was the manager of
the Conference Committee for the House of Representatives. When introducing the conference bill and report
to which the House and Senate c'onferees had agreed,
Congressman Perkins explained on the floor of the House
the meaning of section 103(f) with respect to compensation. First, the congressman set forth all the purposes
for which inspections are .Performed under 103(a) and .
that each mine must be inspected in its entirety at
least four times a year. He then pointed out that in
addition to the regular inspections performed under subsection (a), inspections also were performed under subsections ( i) and ( g). Turning then to section 103( £)',
Congressman Perkins gave the following explanation with
respect.to compensation: 11 Since the conference report
reference is limited to the inspections conducted pursuant to section 103(a), and not to those pursuant to
section (g) (1) or 103(i), the intention of the conference committee is to assure that a representative
of the miners shall be entitled to accompany the federal inspector, including pre and post-conferences, at
no loss of pay only during the four regular inspections

222

of each underground mine and two regular in.spections of
each surface mine in its entirety, including pre and
post-inspection conferences • 11
·
C.Ongressman Perkins then compared section 103(f)
of the present Act with section 103(h) of the 1969 Act,
which gave the miner representatives the right to
participate in "any'' inspection, but which had no provision at all for compensation. The congressman then
·stated as follows: "Since the conference report does
not refer to any inspection, as did section 103(h) of
the 1969 Act, but rather to an inspection of any mine
pursuant to subsection (a), it is the intent of the
committee to require an opportunity to accompany the
inspector at no loss of pay only for the regular
inspections mandated by subsection (a), and not for the
additional inspections otherwise required or permitted
by the Act."
Finally, the congressman stated: "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.''
The congressman's statements appear at Volume 123,
No. 174, Congressional Record, H-11663, Daily Edition,
October 27, 1977; and in Legislative History, Committee
Print (July 1978) at pages 1356 to 1358.
Immediately after Congressman Perkins' statements,
the House of Representatives voted to pass the bill. I
believe the congressman's remarks regarding the operator's obligation to pay for walkarounds are too clear
to be ignored and do not point to any interpretation
other than that the operator only has to pay for the
walkarounds on the four regular inspections. ·As the
Solicitor has persuasively stated, it may be desirable
to compensate miner representatives who accompany MSHA
inspectors on all inspections. This, however, is not
what the Act presently says. Moreover, the congressman,
who perhaps had more to do with the enactment of this
legislation than any other, specifically stated the
opposite. I cannot legislate and neither can the
Secretary. Change must come from Congress.
One final matte~: I recognize that limiting the
right to compensation to regular inspections performed

223

under subsection (a} may raise a question of whether
there is a walkaround right for inspections other than
regular inspections. Congressman Perkins' statement
quoted above indicates that the miner representative
can accompany the inspector during any inspection other
than a regular inspection, exclusive of the operator's
responsibility to pay. The statutory basis of the congressman's assertion of the general walkaround right for
all inspections is not apparent. Be that as it may,
however, the congressman's explanations limiting the
operator's obligation to compensate walkarounds is so
clear and the statutory language regarding the limited
obligation to pay under these circumstances is so clear
to me that they simply cannot be ignored. Here, again,
if the ~alkaround right without compensation has inadvertently been limited, then the remedy lies with Congress. However, I must point out that for present
purposes, this issue is not presented in this case,
and I do not have to decide it. I only make the general
observation that if the problem exists, it is one to be
set right by legislation and not by administrative fiat.
Of course, based upon the representations made to me
during oral argument, it appears that as a practical
matter, the problem does not exist because the walkaround right is available during all inspections, generally, pursuant to the union contract.
In light of the foregoing, therefore, I find there
was no violation. 1/ MSHA's petition for the assessment
of a civil penalty-is hereby dismissed. I express my
appreciation to both counsel for the very fine oral
arguments that were made.
ORDER
·It is hereby ORDERED that the foregoing bench decision be
affirmed, that no penalty be assessed for the reason that no
l/ Administrative Law Judge Michael A. Lasher, Jr., interpreted sec~
tion 103(f) .in a similar manner in two recent decisions. KentlandElkhorn Coal Corporation v. Secretary of Labor and United Mine Workers
(PIKE 78-399) and Magma Copper Company v. Secretary of Labor and
United Steel Workers (DENV 78-533-M), dated March 8, 1979.

224

violation existed and that the instant petition ·for a penalty
assessment be DISMIS:: \

~ . \\

,

Pa~~

•

Assistant Chief Administrative Law Judge
Issued:

April 11, 1979

Dis tr ibut ion:
Leo McGinn, Esq., Office of the Solicitor, MSHA, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Todd D. Peterson, Esq., Jones, Day, Reavis & Pogue,
1100 Connecticut ·Avenue, NW., Washington, DC 20036
(Certified Mail)
Administrator, Coal Mine Safety and Health, U.S. Department
of Labor
Standard Distribution

225

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

.

April 12, 1979

Appiication for Review

CONSOLIDATION COAL COMPANY,
Applicant

v.

Docket No. PITT 79-161

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

Order No. 231630
January 19, 1979
Westland Mine

UNITED MINE WORKERS OF AMERICA,
Respondent
DECISION
Appearances:

Michel Nardi, Esq., and Karl Skrypak, Esq., Consolidation Coal Company, Pittsburgh, Pennsylvania, for
Applicant;
James H. Swain, Esq., and Sidney Salkin, Esq., Office
of the Solicitor, Department of Labor, Philadelphia,
Pennsylvania, for Respondent MSHA;
Joyce Hanula, Esq., and Mary Lu ·Jordan, Esq., for the
.United Mine Workers.

Before:

Judge Merlin
Statement of the Case

This is a proceeding filed under section 105(d) of the Federal
Mine Safety and Health Act of·1977 by Consolidation Coal Company for
review of an order of withdrawal issued by an inspector of the Mine
Safety and Health Administration (MSHA) under section 104(d)(2) of
the Act.
Pursuant to a notice of hearing issued March 5, 1979, this case
was set for hearing on April 3, 1979, in Arlington, Virginia. The
hearing was held as scheduled. The operator, MSHA, and the United
Mine Workers appeared and presented evidence (Tr. 8-132). At the
conclusion of the taking of evidence, the parties waived the filing
of written briefs, agreed to have a decision rendered from the bench,
and set forth their positions in oral argument.

226

Bench Decision
The decision rendered from the bench is as follows:
The validity of a section 104(d)(2) order is being
challenged in this case. The parties agree that the
issues are the existence of a violation and unwarrantable failure.
With respect to the existence of a violation the
cited section is 75.1002 which provides "Trolley wires
and trolley feeder wires, high voltage cables and transformers shall not be located inby the last open crosscut and shall be kept at least 150 feet from pillar
workings."
Admittedly, a battery charger was within the area
prohibited by the mandatory standard. The question is
whether a battery charger is a transformer within the
meaning of the mandatory standard. The Government's
electrical expert testified that a battery charger
has two components, a transformer and a rectifier. With
respect to the battery charger in this case, the transformer would reduce voltage, and the rectifier would
convert AC voltage to DC voltage. Because a transformer is one of the two integral parts of a battery
charger, I hold that where a transformer is present in
the battery charger, the citation of a battery charger
'under section 75.1002 includes a transformer.
In this case the inspector did not actually look
in the battery charger to see if the transformer was
present. However, batteries on the scoop were changed
in the normal manner with the rundown battery being
placed on the rack of this battery charger either for
storage or to be recharged. Indeed, because the
battery charger was in the subject location for
10 days, and because the scoop during that period was
being used to haul materials for longwall mining, I
conclude that the battery charger must have been used
to charge batteries. Of course, in order to charge
~he scoop's batteries, the battery charger had to have
its transformer. Accordingly, I conclude· the battery
charger,- in this instance, contained the transformer,
as would be normal practice. If the transformer was
not in the battery charger, then it was incumbent upon
the operator to prove this deviation from normal practice, which it did not do.
I recognize that another mandatory standard, section 75.1105, specifically refers to transformer

227

stations and battery charging stations. Section
75 .1105 is, of course, a different mandatory standard
designed to cover other situations. I do not view it
as dispositive here. Rather, I remain persuaded by
the fact that in this case the transformer is one of
the two indispensable components of the battery charger,
a fact which the testimony of MSHA's electrical expert
shows is known to all knowledgeable people in the field.
All of the operator's employees do not, of course, have
to be electricians; but those in charge should be apprised
of the components of the equipment they are dealing with
so that they may discharge their duties in accordance with
the mandatory standards.
Accordingly, I conclude a violation within the purview of section 75.1002 existed and was validly cited.
Longwall mining had been going on for 10 days before
the subject order was issued. The evidence shows without
dispute that for these 10 days this equipment was in a
prohibited location. The operator, through its management
personnel, knew of this situation during the entire period.
This constitutes unwarrantable failure.
The subject order is hereby upheld.
for review is dismissed.

The application

ORDER
The bench decision is hereby affirmed. Accordingly, it is ORDERED_
that Order No. 231630 ~~ U~hat the operator's application
for review is DISMISSED~~
Paul Merlin
Assistant Chief Administrative Law Judge
. Issued: April 12, 1979
Distribution:
Michel Nardi, Esq., Kad T. Skrypak, Esq., Consolidation Coal
Company, Consol Plaza, 1800 Washington Road, Pittsburgh, PA
15241 (Certified Mail)
James H. Swain, Esq., Sidney Salkin, Esq., Office of the Solicitor, U.S. Department of Labor, Room 14480-Gateway Building,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Joyce A. Hanula, Legal Assistant, United Mine Workers of America,
900 15th Street, NW., Washington, DC 20005 (Certified Mail)

.228

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

APR 13 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil P~nalty Proceeding
Docket No. MORG 78-314-P

v.

A. C. No. 46-0l429-02020I

EASTERN ASSOCIATED COAL CORP.,
Respondent

Federal No. 1 Mine
DECISION

Appearances:

Edward H. Fitch, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley,
Whyte, and Hardesty, Pittsburgh, PA, for Respondent.

Before:

Judge Lasher

This proceeding arose under section 109 of the Federal Coal Mine .
Health and Safety Act of 1969, 30 U.S.C. § 801 ~~· (1970). Pursuant
to section 301(c)(3) of the Federal Mine Safety and Health Act of 1977,
proceedings pending at the time such act takes effect shall be continued
before the Federal Mine Safety and Health Review Commission.
A hearing on the merits was held in Morgantown, West Virginia, on
March 20, 1979. After considering evidence submitted by both parties,
and argument, I entered a detailed oral opinion on the record at the
close of the hearing. It was found that the violation charged did occur.
I also found that the violation was serious, that it resulted from gross
negligence on the part of Respondent, that Respondent is a large mine
operator with an average history of violations, and had abated the violation in good faith. It was further determined that a penalty otherwise
warranted by consideration of the other penalty assessment criteria provided by statute would have no adverse affect on Respondent's ability to
continue in business. Respondent was assessed a penalty of $5,000.00 for
the violation charged in Notice No. 1 MES dated September 2, 1976.
Respondent-is ordered to pay MSHA the penalty assessed of $5,000.00
within 30 days from the date of this decision.

~de//~/.Michael A. Lasher, Jr., Judge

229

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

April 17, 1979

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

v.

Civil Penalty Proceeding
Docket Nos.

Assessment Control Nos.

PIKE 78-365-P
PIKE 78-380-P

SKYVIEW MINING, INC.,
Respondent

15-09746-02005V
15-09746-02006

No. 4 Mine

DECISION
Appearances:

Eddie Jenkins, Esq.; Office of the Solicitor,
Department of Labor, for Petitioner;
Harold Akers, President, Skyview Mining, Inc.,
Pikeville, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to written notice dated October 11, 1978, a hearing in
the above-entitled proceeding was held on November 14, 1978, in
Pikeville, Kentucky, under section 105(d) of the Federal Mine Safety
and Health Act of 1977.
The Petitions for Assessment of Civil Penalty in Docket Nos. PIKE
78-365-P and PIKE 78-380-P were filed on May 12, 1978, and June 8,
1978, respectively, and each Petition seeks assessment of a civil penalty for one alleged violation of the mandatory safety standards.
Completion of the Record
Respondent's president asked that his company's financial condition be considered in the assessment of penalties. As part of respondent's evidence, respondent agreed to provide bank statements received
by respondent_ from the time respondent stopped mining coal in June
1978 up to the time of the hearing held in November 1978. It was
agreed at the hearing that the bank statements would be provided to
me after all testimony had been received and that I would mark the
bank statements as exhibits and would receive them in evidence at the
time I prepared my decision in this proceeding (Tr. 23).

230

A one-page statement of account for Skyview Mining, Inc., issued
on July 31, 1978, by the First National Bank of Pikeville is.marked
as Exhibit A; a one-page statement of account dated August 31, 1978,
is marked as Exhibit B; a one-page statement of account dated
September 30, 1978, is marked as Exhibit C; and a one-page activity
statement dated October 31, 1978, is marked as Exhibit D. Pursuant
to the agreement of the parties, Exhibits A through D are· received
in evidence (Tr. 22-24).
Issues
The issues raised by the Petitions for Assessment of Civil
Penalty are whether violations of 30 CFR 75.523 and 30 CFR 75.200
occurred and, if so, what monetary penalties should be assessed,
based on the six criteria set forth in section llO(i) of the Act.
At the hearing, respondent stipulated that the alleged violations
occurred. Therefore, it was agreed that insofar as the criteria of
negligence and gravity were concerned, penalties would be assessed
on the basis of the conditions set forth in the inspector's notices
of violation which were attached to the Petitions. Respondent, however, did elect to present evidence concerning two of the six criteria, namely, the size of respondent's business and the question
of whether payment of penalties would affect respondent's ability to
continue in business (Tr. 4).
I shall herein~fter make findings of fact with respect to the
six criteria and penalties will thereafter be assessed based on those
findings.
History of previous violations
The inspector who wrote the notices of violatJon here involved
stated that there is no history of previous violations to be considered (Tr. 15). Therefore. when penalties are hereinafter assessed,
it will be unnecessary to consider the criterion of history of previous violations.
Appropriateness of penalty to size of operator's business
Respondent opened the No. 4 Mine in 1976. The mine was developed
· · with three entries for a distance of about 1, 500 feet. R~spondent
then pulled out of the mine, extracting pillars as it withdrew. All
coal reserves were exhausted at that point (Tr. 7-8).
During the time that the No. 4 Mine was in operation, respondent
employed five miners to produce about 200 tons of coal per day.
Respondent's equipment consisted of a scoop, loading machine, roofbolting machine, and two Joy end-dump shuttle cars. The coal was
shot from the solid, that is, no cutting machine was used before the
coal was .blasted loose. Respondent did not have conveyor belts and

231

all coal was transported to the surface in the shuttle cars (Tr. 6-8;

18).
On the basis of the facts given above, I find that respondent
operated a small mine and that any penalties which are hereinafter
assessed should be in a low range of magnitude to the extent that
the penalties are based on the size of respondent's business.
Effect of penalties on operator's ability to continue in business
Summary of Respondent's Evidence Regarding Its Financial
Condition
Skyview Mining, Inc., is a family corporation which was formed by
the issuance of 300 shares of stock. The president of the corporation
testified as a witness at.the hearing. He owned 100 shares of stock,
a cousin owned another 100 shares, and two other family members owned
50 shares each (Tr. 6). After the coal reserves in the No. 4 Mine had
been exhausted, the members of the corporation recognized that they
were not getting along harmoniously in running the corporation. Each
of the four family members who had advanced capital to form Skyview
Mining, Inc., was repaid in full and the president of Skyview Mining
formed another corporation under the name of A. A. & W. Coal, Inc.
When Skyview Mining, Inc., stopped mining coal in June 1978, it had
in its possession a roof-bolting machine and a scoop on which a total
amount of $75,000 was owed. A. A. & W. assumed Skyview's payments
on the scoop and roof-bolting machine in return for the use of the
equipment in the new mine which A. A. & W. had opened (Tr. 9-11).
Skyview's president testified at the hearing that the balance in
Skyview's bank account amounts at the present time to about $1,300
and that there are no outstanding obligations to be paid from that
balance other than the payment of civil penalties for violations of
the mandatory health and safety standards. The president said that
if respondent only owed for the two violations which are involved in
this proceeding, he would not be concerned about having enough money
in respondent's account to pay all penalties. The president noted,
however, that respondent also owes penalties for several other violations which occurred while respondent was producing coal, but which
.have not yet become the subject of civil penalty proceedings. Skyview's president stated that he believed that the Assessment Office
had proposed .total penalties for all outstanding violations which
would be greater than the assets which Skyview has for payment of
sucn penalties (Tr. 13-14).
Discussion. Any findings that I make must be based on the facts
presented by the parties• Examination of the bank statements submitted
by respondent's president makes it difficult to find that respondent
would be unable to pay any penalties that might be assessed in this
proceeding. I base that conclusion upon several facts in the record.

232

First, Exhibit A shows that the other corporation, A. A. & W., formed
by respondent's president advanced $10,300 to Skyview's account in
order to pay taxes and compensation owed by Skyview. Second, although
respondent's president stated that he did not have authority as president of A. A. & W. to assume any of Skyview's obligations except for
the roof-bolting machine and scoop which A. A. & W. is using, Exhibit
A clearly shows tpat A. A. & W. advanced $10,300 to Skyview in July
1978 to enable Skyview to pay taxes and other obligations.
The burden was on respondent to show that payment of penalties
would have caused respondent to discontinue in business if it had not
already done so. Alternatively, the burden was on respondent to
demonstrate that if it had had to pay civil penalties wh~n it was producing coal, such payments would have had an adverse effect on its
ability to continue in business. The evidence shows instead, hc,>wever,
that respondent discontinued in business because all the coal reserves
in the No. 4 Mine had been exhausted (Tr. 7). Although respondent's
president testified that Skyview could not afford at the present time
to·open a new mine because it now costs about $75,000 more to open a
new mine than it did in 1976 (Tr. 8-9), the president later stated
that the problem of Skyview's being able to continue in business was
not a question of raising capital, but a question of the "family"
stockholders' ability to run the corporation in an amiable fashion
(Tr. 11).
The evidence also shows that A. A. & W. has assumed Skyview's
obligations as to payment for equipment and payment of taxes. While
respondent's president stated that he did not have authority to assume
any of Skyview's other obligations (Tr. 12), it is a fact that the
penalties which are sought in this proceeding relate to violations
which occurred while Skyview was mining coal and therefore the payment of civil penalties is as much an obligation to be met by Skyview as the payment of taxes. There was certainly a balance in
respondent's account as of the date of the hearing to pay any penalties which might be assessed in this proceeding. ];_/

!/

It should be noted that respondent still has in its possession
two shuttle cars and a loading machine (Tr. 8) on which no debts are
·presumably owed because A. A. & W. did not have to assume any payments
on that equipment to keep it from being repossessed when respondent
stopped producing coal. Therefore, if respondent should not have
enough funds in its checking account to pay penalties on all outstanding violations, and if A. A. & W. does not wish to deposit additional
funds into respondent's account, respondent should be able to sell
some of its equipment to obtain money for payment of civil penalties
because the evidence indicates that respondent has no plans to open
any more coal mines (Tr. 11).

233

Good faith effort to achieve rapid compliance
Notice No. 12 RHH was written on February 1, 1977, citing respondent for failure to have an adequate panic bar on its Joy loading
machine. The notice of termination was written on February 17, 1977,
after two short extensions of time had been granted. Inspectors
normally consider that an operator has shown good faith efforts to
achieve rapid compliance when the violations are corrected within the
time originally given or within the time given in notices of extension
of time.
The other notice of violation involved in this proceeding, Notice
No. 7 RHH, was also written on February 1, 1977. One extension of
time was given and the violation was corrected by the expiration of
the extended time period.
Based on the notices of extension of time and notices of termination, I find that respondent showed a normal good faith effort to
achieve rapid compliance with respect to each notice of violation.
Therefore, when penalties are hereinafter assessed, respondent will be
given full credit for having achieved rapid compliance.
Gravity and Negligence
Docket No. PIKE 78-365-P
Notice No. 7 RHH (7-8) 2/1/77 § 75.200
Findings. Section 75.200 requires each operator of a coal mine
to submit to MSHA and to adopt a roof-control plan suitable to the
roof conditions and mining system of each coal mine. Respoudent's
roof-control plan provides that roof bolts are to be installed on
4-foot centers. Respondent violated the provisions of its roofcontrol plan by installing roof bolts in the No. 1 through No. 5
entries in widths ranging from 5 to 15 feet from the rib line,
starting at spad No. 1525. The violation·was very serious because
distances of up to 15 feet between roof bolts expose the roof to
unusual stress with the result that a roof fall is likely to occur.
Respondent was grossly negligent in installing roof bolts at distances which were almost four times the spacing permitted by its
roof-control plan.
Conclusions. Roof falls continue to be the primary cause of
deaths and injuries in underground coal mines. Even though respondent was a small operator, a roof-control violation of the gravity
and high degree of negligence which is here involved warrants assessment of a penalty of $300. There is no history of previous violations to be considered.

234

Docket No. PIKE 78-380-P
Notice No. 12 RHH (7-13) 2/1/77 § 75.523
Findings. Section 75.523 requires that electric face equipment
be provided with devices which will permit the equipment to be
deenergized quickly in the event of an emergency. Respondent violated section 75.523 because its Joy loading machine had not been
provided with an adequate panic bar having proper design. The
inspector's notice shows that respondent had equipped the loading
machine with a panic bar but it was not properly designed. Since
respondent had made an effort to provide a panic bar, there was a
low degree of negligence. The fact that two notices of extension
of time had to be issued for the reason that additional time was
needed to obtain a satisfactory panic bar is an indication-that respondent had difficulty in locating or designing the proper type of panic
bar. Moreover, the inspector's notice does not say that the panic bar
was inoperable. Consequently, I conclude that the panic bar would work
but was not as long or in as convenient position as it should have
been. In such circumstances, the evidence shows that the violation
was only moderately serious.
Conclusions. Considering that a small operator is involved, that
there was a low degree of negligence, that the violation was only moderately serious, and that there is no history of previous violations,
a penalty of $15 will be assessed for this violation of section 75.523.
Summary of Assessments and Conclusions
(1) On the basis uf all the evidence of record and the foregoing
findings of fact, respondent is assessed the following civil penalties:
Docket No. PIKE 78-365-P
Notice No. 7 RHH (7-8) 2/1/77 § 75.200 ••..•........•• $ 300.00
Total Assessments in Docket No. PIKE 78-365-P

... $ 300.00

Docket No. PIKE 78-380-P
Notice No. 12 RHH (7-13) 2/1/77 § 75.523

............. $ 15.00

Total Assessments . in Docket No. PIKE 78-380-P •.. $

15.00

Total Assessments in This Proceeding ...•......••. $ 315.00
(2) Respondent at all pertinent times was the operator of the
No. 4 Mine and as such is subject to the provisions of the Act and
to the health and safety standards promulgated thereunder.

235

WHEREFORE, it is ordered:
Skyview Mining, Inc., is assessed civil penalties totaling $315.00
which it shall pay within 30 days from the date of this decision.

~ C. ~~JJO,,. ..

Richard C. Steffe~
Administrative Law Judge
Distribution:
Eddie Jenkins, Trial Attorney, Office of the Solicitor, U. s·.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
Skyview Mining, Inc., Attention: Harold Akers, President,
Box 458, Pikeville, KY 41501 (Certified Mail)

236

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

April 17, 1979

Civil Penalty Proceeding

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

Docket No. VINC 78-455-P
A.O. No. ll-00598-02037V

v.
Eagle No. 2 Mine
PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Inga A.• Watkins, Trial Attorney, Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the petitioner;
Thomas F. Linn and Thomas R. Gallagher, Esqs.,
St. Louis, Missouri, for the respondent.

Before:

Judge Koutras
Statement of the Proceeding

This is a civil penalty proceeding pursuant to section llO(a)
of the Federal Mine Safety and Heal th Act of 1977, initated by the
petitioner against the respondent on August 17 $ 1978, through the
filing of a petition for assessment of civil penalty, seeking a
civil penalty assessment for one alleged violation of the provisions of mandatory safety standard 30 CFR 75.316, as set forth in a
section 104(c)(2) order issued by a Federal coal mine ins~ector on
June 14, 1977, pursuant to the 1969 Act. Respondent filed an answer
and notice of contest on September 7, 1978, denying the allegations
and requesting a hearing. A bearing was held in St. Louis, Missouri,
on February 13, 1979, and the parties submitted posthearing proposed
findings, conclusions, and briefs, and the arguments set forth
therein have been considered by me in the course of this decision.
Issues
The principal issues presented in this proceeding are (1) whether
respondent has violated the provisions of the Act and implementing
regulations, as alleged in the petition for assessment of civil -penalty filed in this proceeding, and, if so, (2) the appropriate civil
penalty.

237

In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:
(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator,
(3) whether the operator was negligent; (4) the effect on the operator's ability to continue in business; (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. § 801 et seq., now the Federal Mine Safety and Health Act
of 1977, P.L. 95-16~effective March 9, 1978.
2. Part 2700, Title 29, Code of Federal Re~ulations, 43 Fed.
Reg. 10320 et seq. (March 10, 1978), the applicable rules and procedures concerning-mine health and safety hearings.
Stipulations
The parties stipulated to the court's jurisdiction, agreed ·that
the respondent is a large coal mine operator, and that any civil
penalty assessed by me in this matter will not adversely affect
respondent's ability to remain in business (Tr. 9).
Discussion

On June 14, 1977, MSHA inspector Harold Gulley issued section
104(c)(2) Order No. 1 HG, 7-0232, charging a violation of 30 CFR
75.317, and it states as follows:
The ventilation system and methane and dust control
plan was not being followed on section 033, 4 North off
2 Main East in that the permanent stoppings were not substantially constructed and reasonably air tight to minimize air leakage on the intake aircourse to the section.
( 1) Permanent stopping no' d 9 had 4 holes where the stopping was partially crush [sic] out. (2) No. 10 stopping
had a hole beside the man dOOr where stopping had
partially crush [~] out and not repaired or rebuilt.
Three crosscuts outby trap door on the 4 North supply roadway a stopping had a hole 4 inches by 13 inches
and not repaired or plastered. No. 24 and 25 stopping
had been rebuilt and not plastered and 25 holes were
observed in the 2 stoppings. No. 28 stopping had hole
6 inch by 8 inch and had not been repaired. lhe approve
plan states stoppings, overcast or undercast, shall be

238

properly maintained for the life of the stoppings to
assure minimum air leakage.
Testimony and Evidence Presented by Petitioner
MSHA inspector Harold Gulley testified as to his expertise .and
training as a mine inspector, and confirmed that he issued the crrder.
of June 14, 1977, after observing the conditions cited and described.
He was accompanied by George Morris, respondent's safety inspector.
While walking the roadway next to the intake stopping line that
~eparates the intake from the return, they observed the permanent
stoppings in question and identified their approximate location by
means of a mine map (Exh. P-2). Some of the stoppings had been
crushed out, some had been partially replaced and blocks had been
stacked, but they were not wood-fibered or sealed so as to exclude
leakage. He believed that the stopping leaks would affect the ventilation that goes to the 2 West and Main North sections, since the
crushed stoppings along the intake would cause the air to short circuit and travel to the belt isolation and into the return to the
areas at the areas shown at the top of the mine map. The defective
stoppings were on the intake aircourse from the left isolation ('I'.r.
10-22).
Inspector Gulley identified the notes which he made during his
inspection (Exh. P-3), and a copy of the mine ventilation plan (Exh.
P-4, Tr. 25-26). 1be specific ventilation plan provision which he
believes was violated is No. 4( f), 1 abeled ''General, Meth&ne and
Dus_t Control Plan," which reads "These stoppings, overcast and under-·
cast shall be properly maintained for the life of the stoppings, overcast and undercast to assure minimum air leakage." He al so relied on
plan No. 4(f)(2) and (3). He described what he believed was a substantially constructed stopping and stated that a stopping which is
reasonab~y airtight would be one that has a minimtnn of air leakage.
He· believed that the stoppings cited in his order were not substantially constructed because they had been partially crush.cl out and
partially built back. Stopping No. 9 had four holes in it which he
could see through and they were pulling the air from the intake into
the belt isolation. 1be No. 10 stopping had holes beside the man door
where the stopping had partially crushed out and the outer layer of
blocks had a hole in it 4 inches by 8 inches by 26 inches. The
stopping No. 3 crosscuts outby the trap door on the supply road had
a 4-inch long hole at the top, and he observed 13 other holes and
cracks in the stopping which were not plastered. Pieces of concrete
were simply shoved into the holes and were not plast·.ered or woodfibered to keep them in place. The Nos. 24 and 25 stoppings had
crushed out and were rebuilt and he observed 25 holes in the stoppings, 1/2 to 4 inches and he could observe that. ventilation was
going through them. 1be No. 28 stopping had a hole in it 6 inches
by 8 inches which had not been repaired (Tr. 34~40).

239

Inspector Gulley stated that the stopping conditions affected
the ventilation in the entire mine. The crushed-out stopµings at
No. 4 could have dropped and short circuited the ventilation. 'Ille
No. 10 stopping door was not fitting tightly because the blocks and
steel frames were crushed out and he could see through the holes.
The 25 holes in the Nos. 24 and 25 stoppings resulted from failure
to mortar the block joints when the stopping was built, and the
No. 28 stopping hole allowed the ventilation to be sucked out (Tr.
40-44). He used a smoke tube to detect that the air was leaking
through the stoµpings in question, and an anemometer where the ventilation was going through the stoppings, and it turned. 'Ille mine
does liberate gas, and gas feeders have been found and recorded on
the mine books (Tr. 47).
On the particular day in question, Inspector Gulley did not take
air readings and he could not state the danger to which the men may
have been exposed (Tr. 48). Although he checked the preshift examination books, he could not state whether the specific stoppings
which he cited were recorded in the books (Tr. 49). 'Th.e company was
aware of the stopping problems because they were having problems with
smaller type blocks which were taking weight and the section.foreman
should have observed the stoppings when he drove by the stopping line.
Weekly examinations of the intake and returns are required to be made.
Abatement took about 5 hours and all of the 10 to 13 men on the section were used to abate the conditions (Tr. 50-52).

On cross-examination, Mr. Gulley testified that there was suffic.ient au on the last open crosscut of the 033 unit on the day the
order issued. He indicated the area being worked that day, but could
not recall the specific rocms on the map. He took no anemometer
readings and only used that instrument to detect air movement. He
did not know how much air was leaking through the stopping in question and made no calculations regarding air loss. He issued the
order because the stoppings were not substantially constructed and
not because of lost air velocity. The Nos. 24 and 25 stoppings were
completely rebuilt, and the holes resulted because the concrete
blocks used to construct the stopping were not plastered properly.
Had they been plastered properly, the leakage would have been corrected. He was not aware of the wildcat strike the week before his
inspection. 'Th.e cited area was not subject to excessive roof squeeze.
The ventilation plan previously identified was the plan in effect on
the day the order issued, and the plan is modified by attaching supplements to it, but he was not aware of any changes in the criteria
in question (Tr. 55-78).

Mr. Gulley conceded that his order does not specifically cite
the particular ventilation plan requirement allegedly violated by the
respondent. He also indicated that stoppings do leak, but good stoppings have a small percentage of leakage, and he is not surprised that

240

60 to 80 percent of the air that enters a mine never reaches the working face because of leakage through permanent stoppings. He did not
know how many stoppings were installed along the stopping line in
question. None of the stoppings were completely crushed out, and
stoppings crush out because of the. weight ·to which they are subjected.
No one advised him that a ventilation man was assigned permanently to
the section to repair stoppings. He did not check to see whether air
was being directed from the neutral return to the working sections.
He made methane checks on the day in question, but found none. 'Th.e
unit had sufficient air and he ''possibly" could have told face boss
Amos Drone that ''I'm not shutting you down for air, I'm shutting you
down because of the holes in the permanent stoppings" (Tr. 78-87).
On redirect examination, Mr. Gulley confirmed that there was sufficient air in the last open crosscut where mining was taking place
(Tr. 87). 'Th.e preshift reports for June 13, 1977, reflect air readings of 7,500 cfms on the intake, and 9;200 cfms in the return of the
2 West section, and ·on another shift that day, the readings were
6, 000 in the intake and 8, 000 on the return with 2-1/2 percent methane
noted in the No. 4 entry (Tr. 90). He reviewed the preshift books for
June 14, but could not recall all of the recorded air readings for
that day, and did not know whether there was sufficient air throughout
the entire mine (Tr. 97). The mine is on a' 10-day spot frequency
inspection schedule because it liberates methane freely (Tr. 106).
Testimony and Evidence Presented by Respondent
Amos Drone, respondent• s 11 floating boss'' on the day the order
issued, testified that Inspector Gulley advised him of the conditions
of the stoppings in question, but there was sufficient air on the unit.
He observed the stoppings after Mr. Gulley brought them to his attention, but he did not check them all prior to that time while going
underground. The stoppings are on the intake and they serve to maintain the air and to keep it separated from the return. 'Th.e law does
not require the stoppings to be preshifted. There were ~ total of
pO stoppings on the intake in question, and Mr. Gulley cited six of
them. Four of them had holes, and the other two needed plaster. He
described the procedure for constructing the stoppings, and indicated
they were in the process of rebuilding the two which needed plaster
and it would have been completed the same day since a man was on the
section to do the work. He indicated that the company has a program
for maintaining stoppings and seven men on each of two production
shifts are assigned these tasks. It is not uncommon for stoppings
to take weight, particularly in the unit in question. He admitted
the stoppings cited were in need of repair, but indicated the others
were apparently in pretty good shape (Tr. 123-132). Mr. Drone identified Exhibit R-2 as the preshift examination book covering June 14,
5 to 7 a.m •. to 8 to 11 a.m. on June 7, 1977, for the unit in question.
On June 13, the day he was there, the air reading in the last open
crosscut.was 10,2.00, andthe two prior shifts were 13,500 and 9,.000.

241

lhe first preshift indicated 15, 000, and he could recall detecting no
methane on the unit on June 14 or prior to that time. The preshift
for June 7 indicates three intake stoppings were out, and there were
strikes on and off for several days and several shifts (Tr. 133138). lhere was a wildcat strike at the mine during the week prior
to June 14 (Tr. 138). Referring to the preshift books, Mr. Drone
indicated the days that the mine was idle due to the strikes or for
other reasons (Tr. 146-157). He also indicated the days that stopping
conditions were noted in the preshift books (Tr. 157-158).
On cross-examination, Mr. Drone testified that the unit had not
yet begun production when the order was issued. He conceded that he
was responsible for repairs to the stoppings, and that they were
visually obvious once they were pointed out to him, but he did not
see them while riding in (Tr. 159-163).
Mark Etters, respondent's section manager in the safety department, identified Exhibit R-3 as a list of the days between June 4 and
June 13, 1977, that the mine was idle due to a wildcat strike (Tr.
187-189).
Or1 cross-examination:, he testified that the mine was idle on
June ll and that was a management decision and not a strike day (Tr.
189).

Jerry Tien, mine ventilation specialist, testified as to his
expertise and education in mine engineering. He is a specialist in
ventilation, has published three articles on the subject, and was
accepted as an expert in mine ventilation (Tr. 191-193). Mr. Tien
testified it is not uncommon to have a 60- to 80-percent air loss in
a mine before it reaches the working face. Air is lost through leakings on the stoppings and overcasts. He identified Exhibits R-5, R-6,
and R-7, as the Bureau of Mines' publications supporting his statement regarding air loss. He read excerpts from these publications
indicating that due to air leakage, as iittle as 30 percr.1t, and
less than 40 percent, of the air induced in a mine actually reaches
the working faces (Tr. 193-197).

Mr. Tien testified that he made a determination as to the amount
of air lost in the ventilation system at the Eagle No. 2 Mine. He
took a pressure survey in July 1977, and determined an average fresh
air lo.ss of 43 percent, and he believed that was acceptabie. No significant and substantial changes were made in the mine ventilation
system between June 14 and July 5 to 11. He indicated that. he is
familiar with the order issued by Inspector Gulley and that he has
listened to all of the testimony in the case, and he expressed an
opinion that the air loss from the areas described was not uncommon
or unusual for the areas described because the area was formed by a

242

flooding plain which resulted in faults and excessive squeeze. His
pressure survey reflected 27,000 cfms of air flowing through the
4 North Section, and he explained that air leakage through stoppings
is.caused by roof convergence, concussions from blasting, and the
actual stopping construction itself. He explained the effects of
convergence and marked off the areas in question on Exhibit R-8 (Tr.
197-205).
On cross-examination , Mr. Tien testified that he has been in and
out of mines during the course of conducting pressure surveys and he
reiterated that 60 to 80 percent of ·the air is lost due to leakage.
He stated he was familiar with the Eagle No. 2 Mine, did not know the
amount of air leakage· on the day the order issued, and conceded that
air leakage is a serious problem. He indicated it is possible that
the conditions of the stoppings which were cited. could have affected
the air in the other mine section_s, but explained that due to the type
of exhaust system used in the mine, the pressure.differential across
the stopping line would be minimal and would not cause that much difference insofar as air leakage is concerned (Tr. 205-210). Mr. Tien
confirmed that the particular mine area in question has had problems
with stoppings being squeezed out because of excessive roof squeeze,
and that the problem has existed since 1976 and the. company is aware
of it (Tr. 218-219). He indicated that the total mine air intake is
approximately 220,000 cfms, and the 320,000 cfms goes out. The condition of squeeze or convergence of the mine roof and floor is common
to all mines and is a natural condition (Tr. 223).
Petitioner's counsel asked Mr. Tien to compute the air· leakage in
the entry which resulted from the stopping conditions noted by the
inspector on the face of his order. After making certain assumptions,
and considering the size of the stopping holes described by Mr. Gulley,
Mr. Tien stated he could not calculate the precise air leakage because
he would have to measure the entire length of the 60 stoppings, and
would have to know the amou:t of air traveling along the stopping line.
He indicated that it would be difficult to calculate each individual
·
'Stopping for leakage, but that the entire stopping line leakage could
be calculated by determining the air coming in and the air going out,
divided by the number of stoppings (Tr. 228-234). In response to a
question from respondent's counsel, Mr. Tien calculated the air loss
through three stopping hol.es of 26 cfms of air (Tr. 236).
Findings and Conclusions
Fact of Violation
The arguments presented by the parties in support of their respective positions in this proceeding, as well as the facts presented, are
essentially the same as those raised in the prior consolidated cases
of Peabody-C~al Company v. MSHA, Doc_ket No. VINC 78-:1, and MSHA v.
Peabody Coal Company, DocketNo. VINC 78-441-P, decided by meort

243

December 13, 1978. In those proc'eedings, I found that MSHA had 'failed
to establish a violation and dismissed the petition for assessm'ent of
civil penalty. 1be thrust of my decision is found on page 19 of that
decision, which states, as follows:
, In order to establish a violation of the ventilation
plan, MSHA must first establish by a preponderance of the
credible evidence that the failure by Peabody to properly
maintain the stoppings and to keep the stopping doors reasonably airtight did not assure minimum air leakage. MSHA's
contention is that the conditions of the stoppings and
doors resulted in significant air leakage, the magnitude of
which it claims made it apparent that the violation could
significantly reduce the amount of air reaching the working
faces where 'it was needed to carry away methane and respirable dust. 1be critical question presented is whet_her the
conditions cited did, in fact, result in any reduction of the
air reaching the faces. Since the ins_pec tor failed to take
any air measurements on the day in question, I cannot conclude that MSHA has establi'shed by a preponderance of the
evidence that the air leakage was more than minimtml or that
the failure to maintain the stoppings and doors resulted in
a violation of the ventilation plan. In short, I find that
MSHA has failed to carry its burden of proof and that a violation has not been established. In the circumstances, the
order must be vacated and the petition for assessment of
civil penalty must be dismissed. [E.'llphasis in original.]
Under the circumstances herein presented, I adopt my previous
findings and conclusions made in the aforementioned decison as dispositive of the instant proceeding and those previous findings and
conclusions are herein incorporated by reference as my findings and
conclusions in this case and serve as the basis for my findings and
conclusions that MSHA has again failed to establish a violation of
30 CFR 75.316 as charged in Inspector Gulley's Order No. 1 HG,
·June 11, 1977, and' which is the basis for the petition for assessment of civil penalty filed in this proceeding. It is clear to me
in this proceeding that in issuing his order of withdrawal, Inspector
Gulley believed that the stopping -conditions which he observed prevented the legal minimum limit of air from reaching the working faces
because of the air loss caused by leakage through the stoppings in
question. He al so stated that the stoppings condition affected the
ventilation in the entire mine. His order charges that the cited
stoppings were not substantially construe ted and reasonably airtight
to minimize air leakage on the intake aircourse to the section.
However, by failing to take any air measurements or to otherwise
establish that the air leakage through the stoppings did, in fact,_
result in a diminution of air at the faces below the minimum allowable limits, the inspector's beliefs and conclusions are simply
unsupportable-.

244

Petitioner admits that 12,000 cfms of air were present at the
last open crosscut of the 4 North Section at the time the order
issued (Brief, p. '14). However, petitioner concludes that it would
not require a significant increase in the leakage through the stoppings to result in the quantity of air at the face dropping below the
minimum required. While this may be true in theory, the short answer
to the asserted conclusion is that petitioner has not proved its
theory by any credible evidence. I simply fail to understand how
one can conclude as a matter of fact that the quantity of air reaching the face is below the minimumrequired by the law without taking
an air reading or otherwise testing the sufficiency of the air reaching the working face, and petitioner's arguments have not enlightened
me in this regard.
Petitioner's argument that the physical condition of the stoppings, alone, estabishes that less air than that which was possible,
was reaching the face of every working section, begs the question.
The issue is not whether less air than that which was possible was
reaching the face, but rather, the question presented is whether the
amount of air required by the law was, in fact, reaching the working
faces. In this case, the evidence and testimony adduced establishes
that there were a total of sixty (60) stoppings on the stopping line
in the section, six (6) of which were found to be in various stages
of disrepair. Two of these stoppings had been rebuilt, but were
inadequately plastered, one had a hole next to the man door, and the
others needed plastering and patching. Based on the testimony and
evidence adduced by the petitioner in support of its case, I simply
cannot conclude that petitioner has established that the six defectiv'e stoppings, out of a total of 60 along the entire stopping line
in question, in fact, disrupted the ventilation to the point where it
resulted in other than minimum air leakage.in violation of the ventilation plan. The ventilation plan requires that stoppings be properly maintained to assure minimum arr leakage. The problem is that
petitioner has not established by a preponderance of any credible
evidence that failure to maintain the six stoppings in question
failed to assure minimum air leakage. Petitioner's entire case is
·built on the proposition that def~ctive stopping1s somehow disrupt
ventilation in the entire mine, and that this disrupti'O!l'in the ventilation results in less air reaching the face, thereby establishing
a violation. Petitioner glosses over what I believe are the critical
facts to establish a violation, namely, the amount of air introduced
on the section through the normal mine ventilation system, the amount
of air lost through leakage through the six defective stoppings, and
the amount of air ultimately reaching the working faces. Without
these essential ingredients, such ventilation plan terms as ''minimum
air leakage'' and ''reasonably airtight'' lead to meaningless and
speculative guessing games.
.
Petitioner's reliance on the testimony of respondent's witness
Amos Drone aftd the assertion at page 5 of its brief, that he admit;ted

245

that four of the stoppings were not maintained to assure minimum air
leakage must be taken in context. The transcript reference relied
on by petitioner, at page 132, reflects the following:

'Q. Well, in your judgment, as a section boss, was the,
were the stoppings on your unit maintained to assure minimum
air leakage?
A. Well, I would say, I'd have to, with all honesty,
say that, as a whole, we got sixty stoppings there and
the.re's about four of them that were really, you know,
right at that time, needed repairs that we found.

Q. So is it your judgment then that they were maintained. to assure minimum air leakage?
A.

Yes, up to a point.

Q.

Why do you say, "Yes, up to a poine'?

A. Well, I can't say that these stoppings here didn't
need repair. In other words, I couldn't tell you that.
They did need repair. But, like I said, in comparison with
the whole section and everything, with the problems we had,
I can say that the rest of them, you know, apparently were
in pretty good shape.
At pages 12 and 14 of its brief, petitioner suggests that the
condition of the stoppings ilcould affect the ventilation of the
entire .mine," and that the maintenance of the stoppin:gs to assure
minimum air leakage is a preventive measure designed to insure continuous adequate ventilation during the mining process in which conditions are in a c.on.stant state of flux. I agree with this proposition. My disagreement with the petitioner's position in this case,
as well as in my previous decision of December 13, 1978, in VINC 78-1
and VINC 78-441, lies in the fact that petitioner simply has failed
to establish a case,. In this case, the inspector not only failed to
take air readings, but he did not know the total number of stoppings
installed along the intake aircourse which he cited, nor did he
attempt to determine whether the air from the neutral return was
being directed to the working sections. Since he believed there was
sufficient air in the last open crosscut where mining was taking
.place, I simply fail to understand how the 6 defective stoppings
adversely affected the entire mine ventilation system or cause significant air leakage of the magnitude suggested by the petitioner.

246

ORDER
Based on the above findings of fact and conclusions of law, IT
IS .ORDERED that petitioner's petition for assessment of civil penalty,
insofar as it seeks a civil penalty assessment on Order No. 1 H~,
June 14, 1977, be dismissed.

~-z1,e_t'.1.K~
~~e
/{- Koutras
Administrative Law Judge

Distribution:
Inga A. Watkins, Trial Attorney, Office of the Solicitor, Mine
Safety and Health Administration, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
Thomas F. Linn, Esq., 301 N. Memorial Drive, P.O. Box 235»
St. Louis, MO 63166 (Certified Mail)
Standard Distribution

247

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

April 18, 1979

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

Civil Penalty Proceedings
Docket No. DENV 78-362-P
A.O. No. 05-00296-02008
Allen Mine

C F & I STEEL CORPORATION,
Respondent

Docket No. DENV 78-363-P
A.O. No. 05-02820-0200&
Maxwell Mine
Dock.et No. DENV 78-369-P
A.O. No. 05-02820-02010
Maxwell Mine

DECISION
On March 14, 1979, the Mine Safety and Health Administration
moved the Judge to approve a settlement to which the parties had
agreed and dismiss the above-captioned.
The alleged violations and proposed settlements are as follows:
Docket No. DENV 78-362-P
Citation or
Order Number

Date

30 CFR
Standard

Assessment

Settlement

1 DLJ
3 WWT
1 CET
1 CET

01/22/74
·03/30/74
07/12/77
07 /13/77

75.510
75.510
75.509
75.400

$42
42
135
102

$42
42
0
0

04/07 /77

77.190l(d)

190

75

04/07/77

77.1911

130

0

Docket No. DENV 78-363-P
7-0003A/
1 DLJ
7-0003B/
1 DLJ

248

7-000JC/
l DLJ
7-0024C/
1 EM
7-0024A/
1 EM
7-0024B/
1 EM
7-0047/.
1 LAR
7-0059/
4 CET
7-0060/
5 CET
7-0066/
6 CET
7-0067/
7 CET

04/07 /77

77.1914

125

75

06/08/77

77.205(b)

145

0

06/08/77

77. 202

250

125

06/08/77

77.512

180

90

08/01/77

75.200

86

86

08/08/77

75. l 712-6(a)

36

0

08/08/77

75.509

52

0

08/09/77

75.509

52

0

08/09/77

75.316

67

0

06/07 /77

77.516

67

67

10/19/77

77 .1109(d)

49

49

Docket No. DENV 78-369-P
7-0020/
4 EM
7-0080/
2 AD

As grounds to support the proposed settlement, MSHA avers as
follows:
I.

DENV 78-362-P

104(b) Notices 1 DLJ, January 22, 1974 and 3 WWT,
March 30, 1974, alleging violations -0f 30 CFR 70.510 were
previously assessed at $42.00 each in Case No. 3724-0. The
assessed amount was paid by Respondent November 14, 1975.
Counsel for MSHA therefore moves that these two citetions
be dismissed.
104(b) Notice 1 CET, July 12, 1977, 30 CFR 75.509 and
104(b) Notice 1 CET, July 13, 1977, 30 CFR 75.400 were issued
by Federal Coal Mine Inspector Carl E. Thompson Jr. Inspector Thompson is now deceased, and as MESA's sole witness in
establishing a prima facie case as to all elements of the
violation, MSHA moves that the two notices of violation be
dismissed.
II.
1.

DENV 78-363-P

104(a) Order 1 DLJ April 7, 1977 30 CFR 77.190l(d)

The standard cited requires that "no work shall be performed in any slope or shaft, . . . . if the methane content

249

in such slope or shaft is 1.0 volume percentum, or more of
methane." Testimony in the review proceeding by witness for
C F & I was that work was stopped as soon as the warning
light on the continuous mining machine appeared. MSHA's
witness testified that when he entered the area, coal was
being cut. As a result of the conflicting and inconclusive
testimony as to the exact time mining operations ceased when
methane was detected, the parties have agreed to a settlement in the amount of $75.00. The originally assessed
amount was $190.00.
2.

104(a) Order 1 DLJ April 7, 1977, 30 CFR 77.1911(3)

In the above referenced decision the Judge specifically
found that the Inspector's testimony failed to establish the
recirculating of the air as alleged. As a result of the
testimony in the subsequent decision, MSHA moves that.the
alleged violation of 30 CFR 77.19ll(c) be dismisse~.
3.

104(a) Order 1 DLJ April 7, 1977, 30 CFR 77.1914

This order was also the subject of the above referenced
review proceeding in which the Judge found that the auxiliary
fan and the power center, the most important peices [sic] of
equipment, were outby the fork or collar of the slope and
were not subject to the standards cited. As a result of
the diminution in gravity, the parties agreed to a settlement in the amount of $75.00. The original assessment was
in the amount of $125.00.
4.

104(a) Order 1 EM June 8, 1977, 30 CFR 77.205(b)

This order was the subject of an application for review
in which the decision was issued February 8, 1979, by Administrative Law Judge Char 1 es C. Moore, Jr., in which the
imminent danger order was vacated. This violation requires
that travelways be kept clear of extraneous material or
other slipping hazards. The record in the review proceeding clearly indicates that travelway was in the process of
being shovelled-clean of the wet, muddy material which had
spilled. Since the travelway was already in the process of
being maintained when the violation was cited, MSHA moves
the Administrative Law Judge to dismiss the violation of
30 CFR 77.205(b).

5.

104(a) Order 1 EM June 8, 1977, 30 CFR 77.202

While this violation was not directly litigated in the
review proceeding, the record there indicates that the
entire area was wet and muddy; and that the conditions

250

present would significantly reduce any potential for fire
or explosion. At a hearing. [sic] Respondent would contend
that the accumulations cited would have been cleaned up by
the travelway shoveller had time been given. As a result
of the potential conflict in testimony and the condition
observed, the parties agreed to a se·ttlement in the amount
of $125.00.. The original assessment was in the amount of
$250.00.
6.

104(a) Order 1 EM June 8, 1977, 30 CFR 77.512

This condition was in the same area cited above, and
as a result of the wet and muddy conditions any possible
resulting hazards would be significantly decreased. On
this basis the parties agreed to a settlement in the amount
of $90.QO. The original assessment was in the amount of
$1.80.00.
7.

104(b) Notice 1 LAR August 1, 1977, 30 CFR 75.200

This violation was assessed at $86.00. After consideration of the gravity and negligence involved, MSHA concludes that payment in the full amount of $86.00 is
warranted.
8.

104(b) Notice 4 CET August 8, 1977, 30 CFR
75.1712-6(a)

9.

104(b) Notice 5 CET August 8, 1977, 30 CFR 75. 509.

10.

104(b) Notice 6 CET August 9, 1977, 30 CFR 75.509

11.

104(b) Notice 7 CET August 9, 1977, 30 CFR 75.316

These four notices of violation were issued by Federal Coal Mine Ins.pector Carl E. Thompson who i:s now
deceased. As a result, since Inspector Thompson was MSHA's
sole witness. [sic] MSHA is unable to present a prima facie
case as to each of the elements involved and moves the
Administrative Law Judge to dismiss each of the four notices
of violation.
III.

DENV 78-369-P

1.

104(b) Notice 4 EM June 7, 1977, 30 CFR 77.516

2.

104(b) Notice 2 AD October 19, 1977, 30 CFR
77.1109(d)

These two notices of violation were initially assessed
at $67·.oo and $49.00 respectively. After a consideration of

251

the facts, particularly as to gravity arid negligence, MSliA
believes that payment in full is warranted as a proper
settlement in each instance. MSHA therefore moves the
Administrative Law Judge to dismiss these violations on the
basis of full payment.
The above grounds adequately explain the rationale of the Solicitor in his disposition of the above. I hereby APPROVE the settlement
to which the parties agreed.
As section llO(a) makes penalties mandatory for violations, and
as MSHA avers that it cannot establish certain of the alleged violations, those that cannot be established, must be vacated.
WHEREFORE Notice Nos. 1 CET, July 12, 1977; 1 CET, July 13, 1977;
4 CET, August 8, 1977; 5 CET, August 8, 1977; 6 CET, August 9,.1977;
and 7 CET, August 9, 1977; and Order Nos. 1 DLJ, April 4, 1977; and
1 EM, June 8, 1977, are hereby VACATED.
Pursuant to the motion, the above-captioned are DISMISSED.
The hearings that were scheduled for Wednesday and Thursday,
March 21 and 22, 1979, in Pueblo, Colorado, were VACATED .

. ,.

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Malcolm P. Littlefield
Administrative Law Judge
Distribution:

Leo McGinn, Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
C F & I Steel Corporation, P.O. Box 316, Pueblo, CO 81002
(Certified Mail)
Welborn, Dufford, Cook & Brown, 1100 United Bank Center, Denver,
CO 81003 (Certified Mail) (Attn: Mr. Haxton, Room 207)

252

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

APR 2 0 1979
Civil Penalty Proceeding

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

Docket No. DENV 78-460-P
42-01211-02005
Trail Mountain Mine

v.
TRAIL MOUNTAIN COAL CO.,
Respondent
DECISION
On April 2, 1979, Petitioner moved to withdraw its petition for
civil penalty pursuant to 29 CFR § 2700.15(b). As grounds therefore,
petitioner avers that Respondent has agreed to pay the assessed
civil penalty of $466 in full.
The motion to withdraw the petiton is GRANTED, subject to the
case being reopended if the assessed penalty is not paid as agreed
to by the parties.
The hearing scheduled for Tuesday, April 10, 1979, in Salt Lake
City, Utah was VACATED.
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Malcolm P. Littlefield
Administrative Law Judge
Distribution:
Joseph M. Walsh, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
James H. Barkley., Attorney, Offi(!e of the Solicitor, U.S.
Department of Labor, 1585 Federal Bldg., 1961 Stout St.,
Denver, CO 80294 (Certified Mail)
Trail Mountain Coal Ltd., P.O. Box 356, Orangeville, UT 84537
(Attn: Mr. Carson R. Realty) (Certified Mail)

253

..

11

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

Ap.ril ~3, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. WILK 79-11-PM
A.O. No. 17-00123-05001

v.

Cumberland Pit & Mill

BLUE ROCK, INDUSTRIES,
Respondent

Docket No. WILK 79-12-PM
A.O. No. 17-00001-05001
Westbrook Quarry & Mill

DEClSION AND ORDER APPROVING SETTLEMENT
As the result of a settlement conference held on April 10,
1979, the operator agreed to pay $700 in settlement of six of
the seven violations charged. The Secretary in turn agreed
to withdraw the other violation. The amounts agreed upon exceed
the penalties proposed by the Assessment Office.
Based upon an independent evaluation and de novo review
of the circumstances of each violation as reflected in the
parties' prehearing submissions, the representations'made at the
settlement conference, and the factors set forth in: the Secretary's
motion to approve settlement, I find the settlement proposed is
in accord with the purposes and policy of the Act.
Accordingly, it is ORDERED that the motion to approve
settlement be, and hereby is, GRANTED subject to payment and
furnishing of a letter from the president of respondent a~suring
me that steps have been taken to prevent a recurrence of the
violation involving the lubrication of machinery in motion,
including, if necessary, disciplinary action against e~rant
employees. It is FURTHER ORDERED that respondent pay the agreed
upon penalty of $700.00 and furnish the letter of assurance on or
before Wednesday, May 2, 1979. Finally, it is ORDERED that·,
subject to receipt of payment and the required letter, the captioned
petitions be DISMISSED.
.

Joseph B. Ken edy
Administrative Law

254

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

April 24, 1979

PETER WHITE COAL MINING CORP.,
Applicant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA);
Petitioner
v.
PETER WHITE COAL MINING CORP.,
Respondent

Applications for Review
Docket Nos. HOPE 78-23
HOPE 78-41
HOPE 78-42
HOPE 78-48
HOPE 78-49
Civil Penalty Proceedings
Docket Nos. HOPE 78-615-P
HOPE 78-616-P };__/
A.O. Nos. 46-04338-02021V
46-04338-02022V
War Eagle No. 1 Mine

DECISION
The five applications for review were brought by Peter White Coal
Mining Corporation under section 105(a)(l) of the Federal Coal Mine
Health and Safety Act of 1969, 2/ 30 U.S.C. § 801 et seq., to vacate
five orders of withdrawal issued by Federal mine inspectors under
sections 104(c)(2) and 104(b) of the Act.
The parties submitted prehearing statements pursuant to a notice
of hearing and the hearing was held in these cases on April 6 and 7,
1/ Jurisdiction in this case is limited to the civil penalty based on
Order No. 7-0127 issued on September 30, 1977. A case with the same
docket number involving other issues is pending before Judge Moore.
2/ In 1977, Congress passed the Federal Mine Safety and Health Amendiii"ents Act of 1977, (P.L. 95-164, 91 Stat. 1290), which supercedes the
1969 Act. The "Act" for the purpose of this decision, refers to the
1969 Act before amendment. Effective March 9, 1978, administration
of the Act was transferred from the Department of the Interior to the
Department of Labor, and administrative adjudications were transferred
from the Interior Department to the newly created Federal Mine Safety
and Health Review Commission.

255

1978, in Bluefield, West Virginia. The United Mine Workers submitted
a prehearing statement stating that it would not appear at the hearing
and would rely on evidentiary presentations of the Mine Safety and
Health Administration.
After the hearing, counsel for MSHA and the operator moved that
the above two civil penalty petitions (then before other judges) be
consolidated with the subject applications for review and submitted
on the prior hearing record. An order granting the motion to sever
was issued by Judge Charles Moore on December 8, 1978, to consolidate
one of the penalty assessments at issue in HOPE 78-616-P with HOPE
78-41. On January 24, 1979, Judge Richard Steffey issued an order
granting the parties' motion to sever Docket No. HOPE 78-615-P from
a proceeding before him and to consolidate it with Docket No. HOPE
78-42.
The final submission in these cases was filed on April 9, 1979.
MSHA has conceded in its brief that it was in error issuing the
orders of withdrawal in Docket Nos. HOPE 78-23, and HOPE 78-49. The
two w1thdrawal orders in those cases are therefore vacated and the
applications for review in Docket Nos. HOPE 78-23, and HOPE 78-49
will be GRANTED.
Having considered the evidence and contentions of the parties,
I find that the preponderance of the reliable, probative, and substantial evidence, establishes the following:
FINDINGS OF FACT
1. At all pertinent times, the Applicant, Peter White Coal
Mining Corporation, operated an underground bituminuous coal mine,
known as the War Eagle No. 1 Mine, in Mingo Coun.ty, West Virginia,
which produced coal for sales in or affecting interstate commerce.
2. Peter White is a medium-sized operator and the subject mine
produces approximately 95, 000 tons of coal per year. On Sep·tember 30,
1977, a total of 166 union and salaried people were employed at the
War Eagle No. 1 Mine with a total of 12 people employed in the No. 6
section on the day shift.

3. The assessment of a penalty in these proceedings will have
no affect on Peter White's ability to continue in business.
4. Respondent demonstrated good faith in attempting to achieve
rapid compliance after notiffcation of the violations in the two
cases in which civil penalties are being sought.
5. Further findings with conclusions as to allegations and
defenses are set forth in the following numbered paragraphs (6
through 38):

256

HOPE 78-41 arid HOPE 78-616-P
6. Inspectors Edward M. Toler and Tom Goodman arrived at the
War Eagle No. 1 Mine on September 30, 1977, around 7:30 a.m·. The
inspectors intended to investigate a union complaint concerning
ventilation and electrical violations in the mine.
7. When they arrived at the mine, they met with Mr. Tim Maynard,
a management representative, and informed him of the complaint. The
inspectors, accompanied by Mr. Maynard, went underground about 10 a.m.
8. When the inspectors arrived underground, they announced the
purpose of their investigation to the miners present on the section.
About 10:30 a.m., Inspector Toler began to take air readings on the
intake side and found that the ventilation was inadequate. After completing the investigation at 12:30 p.m., Inspector Toler orally issued
a 104(c)(2) withdrawal order. The operator has not rebutted the
existence of the violation as described in the order of withdrawal.
9. The fire boss reports indicated that air readings taken by
management personnel showed adequate ventilation on September 28, 29,
and 30. The amount of air required by the mine's ventilation plan
was 9,000 cubic feet per minute, and the fire boss reports showed
air circulation in excess of 10,000 cubic feet per minute. The fire
boss inspection on September 30, 1977, was made prior to 7:30 a.m.
10. No coal was being produced at the time of the investigation
in this section. The ventilation problem was due in part to faulty
line curtains and the operator was in the process of installing line
curtains to correct the deficiency at the time the inspector was
taking air readings. Some of the men on the section were.engaged in
routine maintenance. Mr. Maynard testified that the lack of adequate
ventilation was also due to a damaged stopping and gob in the main
intake.
11. The preponderance of the evidence shows that the operator
was aware of the inadequate ventilation in the section and was in
the process of abating the problem before the inspectors arrived.
Considering that the operator was aware of the violation, had
stopped production, and was in the process of correcting the violation before the inspectori arrived in the section, I conclude
that MSHA has not proved that the operator was negligent. I therefore find that there was no unwarrantable failure on the part of
the operator regarding this violation. ~./
3/ If the subject order were not invalid for other reasons, it could
be vacated for MSHA's failure to demonstrate that the violation was
due to the operator's unwarrantable failure. See Zeigler Coal Co.
v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976).

257

12.- The failure to provide adequate ventilation in a mine is
ordinarily a serious violation. However, the miners were not producing coal in the section at the time the violation was discovered
and they were working on improving the ventilation by tightening
the check curtains to prevent leakage. Danger to the miners was
possible, but not probable.
13. There had been one violation of 30 CFR 75.316-2(b) issued
prior to September 30, 1977, at the War Eagle No. 1 Mine.
14. A section 104(c)(2) order of withdrawal is a part of a
"chain" and the Act requires an underlying 104(c)(l) order as a
prerequisite to a valid 104(c)(2) order. The inspector cited a
notice of violation issued on May 5, 1977, as the underlying document to support the 104(c)(2) order. Under the Act, the cited
notice could not support a valid 104(c)(2) order. Applicant based
its application for review, in part, on the failure of Respondent
to-properly cite a valid underlying 104(c)(l) order.
15. Respondent attempted to modify the order on two occasions.
Respondent issued the first modification on October 5, 1977, after
the order was terminated, but before the filing of the subject application for review. This.modification was for the purpose of changing
the references to "velocity" in the order to "cubic feet per minute."
Although the wor_d "velocity" was originally used, it was clear from
the figures an4 the context that volume was meant. It has not been
shown· that Applicant was prejudiced or misled by this error or the
subsequent modification. I find that this modification should be
allowed.
16. The second modification was issued on March 30, 1978, by
Inspector Toler and was served on Applicant's counsel at the hearing
on the application on April 7, 1978. This modification was an attempt
to correct the mistaken reference to a notice as the underlying document for the 104(c)(2) order. The modification states:
Order No. 1 EMT., dated September 30, 1977, is hereby
modified to refer to Order No. 1 PT, dated May 5, 1977.
This order was issued under the provisions of section
104(c)(2) of the Federal Coal Mine Health and Safety Act
of 1969 and Title 30 CFR Section 75~316 on September 30,
1977, and is changed to.section 104(c) to reflect the
correct section under the 1977 Amendments Act.
The modification is not, as it states, a correction of the section number to conform to the 1977 Amendments Act. Instead, it is
an attempt to provide a citation to a required underlying 104(c)(l)

258

order. 4/ The Applicant objected to this modification at the hearing
at the time it was introduced.
17. MSHA contends that it has unlimited authority to modify an
order and that Applicant was not prejudiced by either of these modifications. I find that Applicant was prejudiced by MSHA's failure to
provide a proper citation to the underlying order prior to the hearing, in adversely affecting its ability to prepare the application for
review and to prepare for the hearing thereon.
18. Applicant based its application for review, in large part,
on the failure of the inspector to cite a required underlying order.
The operator was prejudiced by MSHA's failure to timely.modify this
order. Applicant's objections to the order and to the attempt to
modify the order should therefore be sustained. Furthermore, it
was plainly the duty of MSHA to disclose any intention to modify·
the order in its prehearing submissions required by the notice of
hearing. Failure of MSHA to meet this responsibility further misled
and prejudiced the operator's rights.
19. For the above reasons, I conclude that Applicant's motion to
exclude the attempted modification of Withdrawal Order No. 1 EMT
issued on September 30, 1977, at its War Eagle No. 1 Mine, be granted,
and the withdrawal order is therefore held to be invalid.
HOPE 78-42 and HOPE 78-615-P
20. After the meeting with the miners described in Finding 8,
Inspector Goodman proceeded to the section power center. Inspector
Goodman is a qualified electrical inspector. He was accompanied by
Mr. Paul Blankenship, the chief electrician at the mine, and Mr. Jerry
Halem, the section electrician.
21. When they arrived at the section power center they cut the
power off, so that Inspector Goodman could .check the section's circuit
breakers.
22. The particular section was using three circuit breakers (two
400-amp Westinghouse circuit. breakers and one 225-amp Westinghouse
circuit breaker). When Inspector Goodman tested the circuit breakers
they failed to deenergiie under a fault condition.
23. Inspector Goodman informed management at that time that he
was issuing a 104(c)(2) order. The operator did not introduce any
evidence to show that the violation found by the inspector did.not
exist and I find that the violation was proven.
4/ The c.orrect citation to the corresponding sectio·n in the 1.977
Amendments Act is 104(d)(2).

259

24. The reason the circuit breakers failed to operate was that
the relays were missing and the sockets that the relays were supposed
.to be plugged into were bridged with No. 14 strand wires. The inspector testified that he believed the operator was aware of the condition because Mr. Halem immediately reached into the under-voltage
relay and pulled out a piece of No. 14 strand wire that bridged the
breaker socket.
25. Because of the above condition, none of the breakers in use
could operate under a fault condition. Inspector Goodman testified
that this condition would have been discovered by someone familiar
with electricity who looked at the circuit breakers because the door
covering the breakers was open and it was evident that the relays were
missing. In addition, he gave his opinion that management should have
discovered the condition when the section was deenergized between
shifts.
26. The operator had instituted a program of weekly inspections
to prevent this type of violation in February, 1977. The last such
inspection prior to the discovery of the condition by Inspector
Goodman was conducted by Mr. Macky May on September 22, 1977. Mr. May,
a certified electrician, testified that all the breakers in use operated properly at that time. Nonetheless, I find that the operator
should have been aware of the violation and I find it negligent in
failing to have instituted a more effective method of correcting this
pattern or practice of unlawfully bridging circuit breaker relays.
Following this· incident, the operator began installing a radio
monitoring fail-safe system to detect and prevent this practice.
27. This violation was very serious. The failure to provide
miners with the grounded phase protection afforded by operative
circuit breakers could result in serious injury ·or death.
28. There had been no previous violations of 30 CFR 75.900
at the War Eagle No. 1 Mine.
29. The order of withdrawal indicated, as did the order in
Finding 14 above, that the action supporting this order was a notice
of violation issued on May 5, 1977. The attempted modification of
this order, to reflect a valid 104(c)(l) order as the basis of the
.104(c)(2) order as required by statute, was not issued until
March 30, 1978, and was not served on Applicant's counsel until
the date of the hearing.
30. Applicant included in its application for review of this
order the same contention described in Finding 18. The Applicant
demonstrated that it was prejudiced by MSHA's failure to timely
modify this order. For the reasons discussed in Finding 18, I
conclude that Applicant's objection to the attempted modification
should be granted, and Withdrawal Order No. 1 TEG issued on

260

September 30, 1977, at its War Eagle No. 1 Mine is therefore held
to be invalid.
HOPE 78-48
31. On October 10, 1977, Inspector Toler, accompanied by
Mr. Maynard, came across a splice that was in violation of 30 CFR
section 75.514. ·The notice of violation, issued about 10 a.m.,
described the violation as follows: "The power cable to the belt
control line to the No. 4 pony belt conveyor was not provided with
suitable connectors in that the leads were twisted together." The
operator was given 30 minutes to abate the violation.
32. Upon leaving the mine, Mr. Maynard told Mr. Blankenship
that the notice had been issued and described to him the location of
the faulty splice. Mr. Blankenship assigned an electrician on the
oncoming shift to repair the splice.
33. There was confusion among the witnesses regarding the location of the violation. In the notice, the inspector stated that the
violation was at the No. 4 Pony Belt Conveyor. Mr. Maynard testified
that the location of the violation was at the No. 16 section belt
head. Mr. Blankenship testified that the No. 4 belt was also called
the No. 11 belt.
34. Mr. Blankenship was told by the midnight foreman, on the
morning of October 11, that the cable had been repaired. The electrician assigned to repair the cable apparently went to the next
belt head past the site of the violation that was specified in the
notice.
35. At 4 p.m. on October 11, 1977, Inspector Toler and
Mr. Maynard returned to the section and found that the violation had
not been abated. Inspector T"ler issued a 104(b) order alleging·"no
attempt was made to splice the belt control line to the No. 4 Pony
Belt and the wires were left exposed. 11
36. Inspector Toler was told by Mr. Maynard that an electrician
had been assigned to make the repair on the cable and must have made
a splice in another area of the mine. The inspector testified, and I
find, that he did not give any consideration td extending the time for
abatement.
37. Section 104(b) of the Act provides that an inspector shall
issue an order of withdrawal if the time given for abatement in the
underlying 104(b) notice expires and the violation is not abated, and
"if he also finds that the period of time should not be further
extended. 11
38. Inspector Toler did not comply with the provision of section
104(b) that requires that he make a findi~g that the period of time

261

allowed for abatement should not be extended. According to the
inspector's testimony, he did not consider extending the time. Moreover, the inspector failed to check on the subsequently issued written
order the box indicating that he had made a finding that the time
allowed for abatement should not be extended. I therefore find that
the subject 104(b) order is invalid and should be vacated.
DISCUSSION
HOPE 78-41 and HOPE 78-42
The primary issue in an application for review of a withdrawal
order is whether the order is valid. Applicant failed to show that
the violations described in the subject orders did not exist. However, Applicant did raise serious questions as to the validity of
the orders.
The inspectors in both of these cases indicated in the orders
of withdrawal that a 104(c)(l) notice supported the 104(c)(2) order.
Section 104(c) of the Act provides:
(c)( 1) If, upon any inspection of a coal mine, an
authorized representative of the Secretary finds that
there is a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger,
such violation is of such nature as could significantly
and substantially contribute to the cause and effect of
a mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of
such operator to comply with such mandatory health or
safety standard, he shall include such finding in any
notice given to the operator under this Act. If,
during the same inspectj~n or any subsequent inspection
of such mine within ninety days after the issuance of
such notice, an authorized representative of the Secretary finds another violation of any msndatory health or
safety standard and finds such violation to be also
caused by an unwarrantable failure of such operator to
so comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area affected
by such violation, except those persons referred to in
·subsection (d) of this section, to be withdrawn from,
and to be prohibited from entering, such area until an
authorized representative of the Secretary determines
that such violation has been abated.
(2) If a withdrawal order with respect to any area
in a mine has been issued pursuant to paragraph (1) of
this subsection, the withdrawal order shall promptly be

262

issued by an authorized representative of the Secretary
who finds upon any subsequent inspection the existence
in such mine of violations similar to those that
resulted in the issuance of the withdrawal order under
paragraph (1) of this subsection until such time as an
inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses
no similar violations, the provisions of paragraph (1)
of this subsection shall again be applicable to that
mine.
The Act.requires a 104{c)(l) order to serve as the basis for a ·
104(c)(2) order. The inspectors instead cited a 104(c)(l) notice
in the orders being contested.
Applicant contends that this failure to provide a correct citation could not be modified once the subject orders were terminated;
however, that position does not have to be ruled on in disposing of
these cases. The question presented here is whether an order that
fails to provide a correct citation can be modified and rehabilitated
a few days before a hearing on the application for review.
A review of the facts leads to the conclusion that in these circumstances the modification sought by MSHA should not be allowed.
Applicant stated in its application for review of these orders filed
on October 25, 1977, that the orders were invalid because they failed
to indicate that a ~tatutory prerequisite, a prior 104(c)(l) order,
existed. MSHA, therefore, was aware of Applicant's basic contentions
in these proceedings 7 months before the hearing.
MSHA did not try to correct these orders by moving to modify
them in its answers to the applications for review filed in November
1977, or in its prehearing statement filed on March 6, 1978. MSHA
did not issue the modifications until March 30, 1978, about 1 week
before the hearing, and approximately 7 months after the orders
were terminated. Notice of this action was.not given to Applicant's
counsel until the hearing on April 7, 1978.
I find that Applicant was entitled to notice of these attempted
modifications of the 104(c)(2) orders prior to the hearing, and was
prejudiced in preparing for the hearing by the failure of Respondent
to timely inform Applicant of the modifications of the orders. A
party has a right to know the basic facts in dispute prior to the
hearing on an application for review. The Commission's rules provide
for prehearing discovery and the parties in this case were required
to exchange prehearing statements. MSHA has given no reason for its
failure to include the proposed modifications in its prehearing
statement.

An operator has the right to expect that information furnished
by the Government in an order of withdrawal is accurate. In .these

263

cases, Applicant determined, based on the information supplied by the
Government, that a valid (c) chain did not exist, and exercised its
right to file the subject applications for review. MSHA has
prejudiced Applicant's rights by its 7-month delay in seeking a
modification of the orders.
In a similar case, a (c)(2) order was vacated because of the
Government's failure to properly document its action. The Judge
stated:
It is false reasoning for MESA to argue that the
operator has already been served with the earlier (c)
chain citation and that therefore, MESA does not have a
responsibility for providing accurate citations. The
Act clearly requires that notices and orders contain a
detailed. description of a condition or practice which
constitute a violation. This includes proper and correct
information on the underlying (c) sequence of citations.
Old Ben Coal Company v. MESA, VINC 76-56 (June 15, 1976) at p. 8.
In the instant cases, MSHA had an obligation to provide accurate
information in the withdrawal orders or at least to correct any fundamental errors within a reasonable time. The attempted modifications
on March 30, 1978, were not timely. Therefore, Applicant's objection
to the modifications, issued on March 30, 1978, made at the hearing
are SUSTAINED, and the instant orders are VACATED and the applications
for review will be GRANTED.
HOPE 78~615-P and HOPE 78-616-P
Although the withdrawal orders in these proceedings have been·
found to be invalid, that finding does not constitute a bar to the
civil penalty proceedings consolidated with the applications for
review. The Commission has reaffirmed the Interior Department's
former Board of Mine Operations Appeals' position that the invalidity
of a withdrawal order may not be considered as a mitigating factor
in a civil. penalty proceeding under section 109 of the Act. MSHA v.
Wolf Creek Collieries Company, Docket No. PIKE 78-70-P (March~
1979).
These civil penalty cases will therefore be considered for appropriate penalties in light of the six statutory criteria in section
109(a)(l).
In Docket No. HOPE 78-616-P, the operator failed to overcome
MSHA's prima facie showing of a violation of the ventilation standard.
However, the preponderance of the evidence showed that the operator
was aware of the problem, had halted production in the affected section, and was in the process of c.orrecting the problem when the
inspectors arrived. MSHA did not prove that the operator was

264

negligent in regard to this violation and a substantial penalty is
therefore not warranted.
In Docket No. HOPE 78-615-P, the operator failed to overcome a
prima facie showing of the violation as described in the order. It is
also evident from the facts that the operator knew or should have known
that the violation existed. The·failure to provide adequate protection against electrical shock is a very dangerous practice and warrants
a substantial penalty. ·The Applicant has installed a fail-safe radio
monitoring system to prevent a reoccurence of this practice, so it is
unlikely to occur in the future.
HOPE 78-48
The parties in this cas~ agreed.that the primary issue is
whether or not the time fixed in the notice should have been extended.
A more basic question, though, is whether the inspector followed.the
statutory framework by failing to consider whether or not the time
fixed in the notice should have been extended. Section 104(b) of
the Act provides in part:
If, upon the expiration of the period of time as
originally fixed or subsequently extended, an authorized
representative of the Secretary finds that the violation
has not been totally abated, and if he also finds that
the period of time should not be further extended, he
shall find the extent of the area affected by the viola.tion and shall promptly issue an order requiring the
operator of such mine or his agent to cause immediately
all persons except those referred to in subsection (d)
of this section, to be withdrawn from, and to be prohibited from entering, such area until an authorized
representative of the Secretary determines that the violation has been a}>ated. [Emphasis added.]
The inspector testified that h.e gave no consideration at all to
extending the time fixed for abatement. Mr. Maynard had told him that
apparently the electrician had mistakenly repaired a different splice
in another location in the mine. The inspector should have considered
and weighed this explanation; and should have considered the confusion,
evident on this record, regarding the location of the violation.
Mr. Maynard, for example, called the location of the violation the
No. 16 section while the inspector referred to it in the notice as the
No. 4 Pony belt and Mr. Blankenship thought that No. 4 al~o was the
No. 11 belt entry.
One of the basic requirements for the issuance of a 104(b) order
is a reasonable determination by the inspector that the time should
not be extended. Since the inspector did not give any consideration
to this responsibility, .the order should be vacated.

265

CONCLUSIONS OF LAW
1. The undersigned Judge has jurisdiction over the parties and
the subject matter of these proceedings.
2. At all pertinent times, Applicant's War Eagle No. 1 Mine was
subject to the provisions of the Act.

3. By concession of MSHA, the withdrawal orders in Docket Nos.
HOPE 78-23 and HOPE 78-49 are VACATED and the applications for review
are GRANTED.
4. In Docket Nos. HOPE 78-41 and HOPE 78-42, the Applicant
showed that the orders issued were invalid because they failed to
cite a required underlying 104(c)(l) order, and the attempted modifications made on March 30, 1978, were not timely. The Applicant also
proved that the order issued on October 10, 1977, at issue in HOPE
78-48, was invalid because the inspector failed to consider whether
the time allowed for abatement should be extended.

5. In civil penalty Docket No. HOPE 78-615-P, the operator
violated the mandatory safety and health standard as alleged.
6. In civil penalty Docket No. HOPE 78-616-P, the operator
violated the mandatory safety and health standard as alleged. However, no negligence was shown and the operator was in the process
of abating the violation when the inspectors arrived in the section.
CIVIL PENALTIES
Based on the statutory criteria for assessing civil penalties,
Respondent is assessed the following penalties for the violations
found herein:
DOCKET NO.

30 CFR

CIVIL PENALTY

HOPE 78-615~P
HOPE 78-616-P

75.900
75.316

$5,000
$100

All proposed findings and conclusions inconsistent with the
above are hereby rejected.
ORDER
WHEREFORE, IT IS ORDERED that the applications for review are
GRANTED and the subject orders of withdrawal are hereby VACATED and
IT IS FURTHERED ORDERED that Peter White Coal Mining Corporation

266

shall pay MSHA the above civil penalties totaling $5, 100 within
30 days from the date of this Decision.

z;}~ .f:A44v~
WILLIAM FAUVER, JUDGE

Distribution:
Joyce A. Doyle, Esq., Counsel for Peter White Coal Mining
Corporation, l Dag Hammarskjold Plaza, New York, NY 10017
(Certified Mail)
Joseph M. Walsh, Esq., Assistant Solicitor, Division of Mine
Safety and Health, U.S. Department of Labor, 4015 Wilson
Blvd., Arlington, VA 22203
Harrison Combs, Esq., United Mine Workers of America,
900 15th St., NW., Washington, DC 20005 ( Certi,fied Mail)

267

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

OFFICE OF ADMINISTRATIVE LAW JUDGES
4015 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

April 25, 1979

AUBREY M. BRADLEY III,
Applicant

Application for Review

v.

Docket No. DENV 78-17

UNIVERSAL COAL AND ENERGY
COMPANY,
Respondent
DECISION
Appearances:

David B. Rogers, Esq., Smith, Lewis & Rogers, Columbia,
Missouri, for Applicant;
N. William Phillips, Esq., Milan, Missouri, & George J.
Anetakis, Esq., Frankovitch & Anetakis, Weirton,
West Virginia, for Respondent.

Before:

Judge Charles C. Moore, Jr.

Aubrey M. Bradley III alleges discrimination on the part of
Universal Coal and Energy Company (hereinafter referred to as
Universal) in that he was fired because of safety violation complaints. Mr. Bradley was employed by Universal as a scraper operator from August 27, 1977, to October 4, 1977. During the last
3 weeks of this time frame, Mr. Bradley noted in his daily time
reports that the 627 Cat scraper he was operating did not have
effective brakes. Thereafter, he orally reported to the mine superintendent, Mr. Russ Walker, the condition of the relevant brakes.
Furthermore, on Friday, October 1, 1977, 3 days before the Applicant
was discharged, he spoke with the union safety officer, Don Durham,
concerning the condition of the brakes. Mr. Durham immediately contacted Mr. Walker to inquire whether anything could be done about
the condition of the brakes. When Mr. Bradley came to work the
following Monday, October 4, 1977, he was discharged. He noted that
the scraper had been put on blocks and its wheels had been removed
for purposes of repairing it$ brakes.
The Applicant alleges that the brakes on the scraper did not
work and that the scraper could not be stopped without the use of
the bucket (Tr. 16). In fact, he was of the opinion that if one
were going backwards on an incline, the machine could not be
stopped (Tr. 17). The Applicant was also of the opinion that Universal never examined or made any repairs in response to his complaints concerning the brakes (Tr •. 22).

268

The Respondent offered evidence that the brakes were examined
and the necessary adjustments were made to the brakes. The mechanic,
Thomas H. Gann, who had worked in the same pit area as Mr. Bradley,
testified that upon receiving a complaint from Mr. Bradley, he would
check and adjust the brakes (Tr. 67, 68). He did not find anything
wrong with the brakes, nor did he receive a complaint from anyone
else about them (Tr. 67).
The Respondent also showed that it was normal procedure to use
the pan when stopping the scraper. Mr. Meyer, a scraper operator,
who worked the same shift as Mr. Bradley, testified that any brakes
would only serve to slow down a fully-loaded scraper. This necessitated the use of the pan to stop a scraper (Tr. 43). Mr. Meyer also
testified that he had operated Mr. Br9dley's scraper for a few days
and during this time, he had no trouble stopping the scraper (Tr.

43).
The president of the union local, Mr. Couch, who operated the
same scraper as Mr. Bradley, but on a different shift, testified that
he had no trouble with the brakes. He also said a brand new fullyloaded scraper going down a hill would very seldom be stopped by
using only the brakes (Tr. 81); thus, it is quite common to use the
pan when stopping the scraper (Tr. 87).
The mechanic, Mr. Gann, also explained why the scraper was on
blocks on Monday, October 4, 1977. He indicated that the scraper
had been in good working order on the previous Friday when he had
last-checked it (Tr. 70). It was only over the weekend that a problem developed and when it was discovered, it was repaired immediately
(Tr. 70, 75, 76, 77).
I thus find that Universal was properly maintaining and repairing
the brakes on the 627 Cat scraper. It should be noted that not only
did each of the three union witnesses speak favorably as to Universal's
regard for the safety of its employees and the maintenance of its
equipment (Tr. 58, 71, 82), but the mine in question had recently won
a safety award for its low occurrence of accidents (Tr. 83, 90).
Universal maintains that the discharge of Mr. Bradley had nothing
to do with his safety complaints (Tr. 88, 105). Under his contract,
Mr. Bradley was classified as a probationary employee. This meant
that Universal had 60 days to evaluate the performance of Mr. Bradley
to determine whether he was qualified to continue working with the
company, and thus gain membership in the union (Tr. 20, 87, 116). If
the company during this time period, makes a determination that an
individual has not performed satisfactorily, they have a right to_
release him under the contract (Tr. 87). As a consequence of this
contractual relationship, Universal argues that Mr. Bradley was
properly discharged as an employee whose performance during his
probationary period did not merit continued employment (Tr. 116).

269

In support of its position, Universal presented evidence that
Mr. Bradley was not operating his scraper properly. Three witnesses
testified that he carried the pan too high, which could cause the
machine to overturn (Tr. 45, 46~ 92, 102). Also, there was testimony
that the Applicant would drive over large rocks which could damage
the machine's transmission (Tr. 52). Furthermore, three witnesses
testified that not only would Mr. Bradley repeatedly get his machine
stuck in the mud; but on a few occasions would intentionally attempt
to do so (Tr. 47, 48, 49, 53, 68, 93, 108). Also, there was testimony presented that the Applicant would take excessively long work
breaks (Tr. 50, 51, 72, 92); not punch out when his machine was being
repaired (Tr. 52, 60); and his behavior was generally uncooperative
(Tr. 43, 93, 100, 102, 104). The foregoing evidentiary presentation
was not only proffered by the company's vice president of operations
and pit foreman, but it is also noteworthy that these observations
were made by two of Mr. Bradley's fellow employees who worked in the
same pit area with him. It is noted that when the company was having
meetings where they reviewed Mr. Bradley's probationary status, they
did not even discuss the Applicant's safety reports during such meetings (Tr. 89).
I find from the foregoing that the evidence indicates that
Mr. Bradley was fired because he was not operating his scraper properly, he had poor relations not only with management but also with
his fellow employees, and his behavior was generally uncooperative.
Based on the foregoing, I find that Applicant has failed to
carry its burden of showing he was discharged because of safety
complaints. The case is accordin~s~-~~ [.
Charles C. Moore, Jr.
Administrative Law Judge
Issued:

April 25, 1979

Distribution:
David B. Rogers, Esq., Smith, Lewis & Rogers, Haden Building,
901East Broadway, Columbia, MO 65201 (Certified Mail)

N. William Phillips, Esq., Attorney at Law, 103 North Market
Street, Box 69, Milan, MO 63556 (Certified Mail)
George J. Anetakis, Esq., Frankovitch & Anetakis, 334 Penco
Road, Weirton, WV 26062 (Certified Mail)
Administrator for Coal Mine Safety and Health
Standard Distribution

270

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

.

April 27, 1979

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

Civil P~nalty Proceeding
Docket No. VINC 79-119-P
A.O. No. 12-00329-03004-V
Old Ben No. 2 Strip Mine

OLD BEN COAL COMPANY,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois, for Petitioner;
Edmund J. Moriarty, Esq., Chief Counsel, Old Ben Coal
Company, Chicago, Illinois, for Respondent.

Before:

Chief Administrative Law Judge Broderick
STATEMENT OF THE CASE AND FINDINGS OF FACT

This is a civil penalty proceeding. Respondent is charged with
a single violation of the mandatory standard contained in 30 CF~
77.1710(g) occurring on April 12, 1978. A hearing was held in
St. Louis, Missouri, on April 10, 1979. Joseph Hensley testified for
Petitioner. Robert Tooley and Dale Wools testified for Respondent.
At the conclusion of the hearing, each party waived its right to file
proposed findings of fact and conclusions of law.
The facts are essentially not in dispute. ANSCO, Inc., was constructing a bucket building on Respondent's premises under a contract
with Respondent. The building was intended to be used for maintenance
and repair of the buckets which Respondent used in extracting coal.
On April 12, 1978, one of ANSCO's employees was observed working 15
to 20 feet in the air standing on an I-beam on the side of the building. He was not wearing a safety belt and there was danger of his
falling.
The contract between Respondent and ANSCO provided that ANSCO
was to erect the building for a fixed sum according to certain
specifications. Under the terms of the contract and in carrying it

271

out, ANSCO was independent of any control by Respondent. Its
employees were supervised by its own supervisor and Respondent did
not hire, fire, direct or control them in their duties. There were
no employees of Respondent close to the area where the allegeq violation occurred except Dale Wools, Old Ben mine inspector, who
accompanied the Federal inspector, Joseph Hensley. When the violation was observed, Hensley told Wools that he was writing a citation and Wools told the ANSCO employee to come down. The ANSCO
supervisor was not in the immediate vicinity at that time. The
employee admitted that he had been instructed to wear a safety belt,
but thought he could finish his job before the supervisor returned.
On April 11, 1978, Inspector Hensley was at the same site and
noticed ANSCO employees in elevated places without safety belts.
Hensley discussed this situation with the ANSCO supervisor who
promised to instruct his men about the requirements for safety
belts. No citations were written as a result of these occurrenc~s.
ISSUES
1) Whether Respondent, a coal mine operator, is responsible in
a penalty proceeding under the Federal Mine Safety and Health Act of
1977 fer violations which involve only the employees of an independent
contractor.
2)

If so, what is the appropriate penalty?

STATUTORY PROVISIONS
Section llO(a) of the Federal Mine Safety and Health Act of 1977
provides:
The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who
violates any other provision of this Act, shall be assessed
a civil penalty by the Secretary which penalty shall not be
more than $10,000 for each such violation.
Seciion 3(d) of the Act provides:
'Operator' means any owner, lessee, or other person
who operates, controls or supervises a coal or other mine
or any independent contractor performing services or construction at such mine.
REGULATION
30 CFR 77.1710 provides in part:
Each employee working in a surface coal mine or in the
surface work areas of an underground coal mine shall be

272

required to wear protective clothing and devices as indicated
below:

*

*

*

*

*

(g) Safety belts and lines where there is danger of falling * * *
THE REPUBLIC STEEL AND COWIN CASES
On April 11, 1979, the day following the hearing in this case, the
Commission issued its decisions in Secretary of Labor, Mine Safety and
Health Administration (MSHA) v. Republic Steel Corporation, Docket Nos.
MORG 76-21 and MORG 76X95-P (79-4-4) and in Secretary of Labor, Mine
Safety and Health Administration (MSHA)· v. Cowin and Company, Inc.,
Docket No. BARB 74-259 (79-4-5). Both of these cases arose under the
Federal Coal Mine Health and Safety Act of 1969. The 1969 Act defined
"operator" as "any owner, lessees or other person who operates, controls
or supervises a coal mine." In Cowin, the Commission held that Cowin
and Company, a construction contractor under contract with a coal mine
owner "was an 'oper;-.tor' of a 'coal mine' under the 1969 Act***·" In
Republic, the Commission held that "as a matter of law under the 1969
Act an owner of a coal mine can be held responsible for any violations
of the Act committed by its contractors."
The legal issue here is therefore a narrow one: Does the specific
inclusion in the 1977 Act of independent contractors within the definition of operator affect the liability of coal mine operators for violations of such contractors? The fact that an independent contractor is
an "operator" and thus liable under the Act for safety violations, does
not necessarily exclude the liability of the coal mine operator, as the
two Commission decisions clearly illustrate. I interpret the decisions
to give the Secretary discretion under the 1969 Act to assess a penalty
for a violation committed by an independent contractor against the
contractor or against the mine op.erator. The fact that a contractor is ·
an operator by explicit statutory language rather than by construction,
should logically not limit the Secretary's discretion. The legislative
history does not support Respondent's position that Congress intended to
limit or withdraw the liability of coal mine operators for acts or
omissions of independent contractors. See JOINT EXPLANATORY STATEMENT
OF THE COMMITTEE OF CONFERENCE, S. REP. NO. 95-461, 95th CONG., 1st
SESS. (1977), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE
SAFETY AND HEALTH ACT OF 1977, at 1315.
CONCLUSIONS OF LAW
1. Respondent, Old Ben Coal Company, is liable as a matter o~ law
under the Federal Mine Safety and Health Act of 197°7 for violations of
safety standards committed by its contractor, ANSCO, Inc.

273

2. On April 12, 1978, Respondent violated the safety standard
contained in 30 CFR 77.1710(g), because the employee of ANSCO was
not required to wear a safety belt when working on a high place.
3. The violation was serious, since it could have resulted in
a fatality or serious injury.
4. The evidence does not establish. that the violation resulted
from Respondent's negligence. The employee in question was not
directly or indirectly under Respondent's control. I do not accept
the position that a violation of a safety standard is negligence per
se. Such a position makes the specific inclusion of negligence as
a criterion for determining the amount of the penalty, nonsensical.

5. Respondent is a large operator. There is no evidence that
a penalty will have any effect on its ability to continue in business.
6. There is no evl.dence concerning Respondent's previous history
of violations.

7. Respondent demonstrated good faith in attempting to achieve
rapid compliance after being notified of the violation.
I conclude, based on the above findings of fact and conclusions
of law, and considering the statutory criteria in section llO(i) of
the Act, that an appropriate penalty for the violation is $750.

ORDER
WHEREFORE Respondent is ORDERED to pay within 30 days of the date
of this decision the sum of $750 as a penalty for the violation found
herein to have occurred.

J

c-1//,1.,l..

·

/t3 . -

#1

.~ ./{ "" ,·v iv-vt-&/(_
12'

James A. Broderick
Chief Administrative Law Judge

Distribution:
Edmund~·

Moriarty, Esq., Attorney for Old Ben Coal Company, 125
South Wacker Drive, #2400, Chicago, IL 60606 (Certified mail)

Rafael Alvarez, Esq. and Miguel Carmona, Esq~, Trial Attorneys, Office
of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street,
Chicago, IL 60604 (Certified mail)
Assistant Administrator, MSHA, U.S. Depart~ent of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203

274

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

April 30, 1979
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. HOPE 78-619-P
A.O. No. 46-03859-02033V

v.

Docket No. HOPE 78-620-P
A.O. No. 46-03859-02034V

SEWELL COAL COMPANY,
Respondent.

...

Sewell No. 1-A Mine
Docket No. HOPE 78-516-P
A.O. No. 46-03467-02040V
Docket No. aoPE 78-661-P
A.O. No. 46-03467-02068V
Docket No. HOPE 79-202-P
A.O. No. 46-03467-03008
Meadow River No. 1 Mine
Docket No. HOPE 78-662-P
A.O. No~ 46-01477-02075V
Docket No. HOPE 78-680-P
A.O. No. 46~01477-02073

:.

Docket No. HOPE 79-203-P
A.O. No. 46-01477-02020V
Sewell ?fo. 4 Mine
DECISION AND ORDER APPROVING SETTLEMENT
The captioned penalty enforcement proceedings were assigned
to the Presiding Judge in February and March 1979. Notices of hearing
and pretrial orders were issued between February 28 and March 27,
1979. On April 18, 1979, the Secretary filed a motion to approve
settlement of all 44 violations in the amount of $115,000.00.
In support thereof, the Secretary showed the following:
1.

Within 30 days of approval, respondent will pay
one hundred and fifteen thousand dollars ($115,000.00)
in settlement of the violations -- the amounts to be
allocated among the individual violations at the
discretion of the Presiding Judge.

275

2.

The Office of Assessments has, at the request of
counsel for the Secretary, had a Connnittee of
Assessment Specialists review all of the violations.
As a result of that review the Committee has
determined that payment of $115,000.00 in penalties
is a reasonable and appropriate resolution in this
instance of all of the violations charged. 1/

3.

None of the violations involved in these charges
actually resulted in death or disabling injuries
to any miner, and, in fact, no injuries were sustained by any miner as a result of any of these
violations.

4.

The vice-president of Sewell Coal Division of the
Pittston Coal Group 2/ has provided a letter stating
these matters were brought to his personal attention,
that they are a subject of continuing concern, and
that he has instructed his safety director to take
necessary steps to minimize delays in taking remedial
action especially on unsafe roof conditions and
accumulations of combustibles, including where
necessary disciplinary action against supervisory
personnel.

5.

The settlement provides for an average penalty of
over thirty-five hundred dollars ($3,500) for each of the
32 unwarrantable failure violations.

6.

Of the 12 citations, one originally assessed at $240.00
(No. 7-0309) has been withdrawn for the reasons stated.
The other 11 were issued during the coal strike of
1977~1978.
The amounts assessed totalled $1,316~00.
The Secretary states ~he gravity and negligence involved in these violations was considered minor
because very few employees were available to observe
or correct the conditions or to be exposed to the
hazards created.

1/ The record shows the amount originally assessed by the
Asses.sment Office was $213,056.00. The amount now approved for
settlement, is approximately 54% of the amount initially proposed.

J:./ .The Pittston Company, owner of Sewell Coal Company, is
one of the largest coal producers in the United States.

276

7.

With respect to the fourteen (14) violations
originally assessed at ten thousand dollars ($10,000.00)
the Secretary concluded that "some of these were
over assessed". In addition it is urged that with
respect to several of these violations "the inspectors'
failure to keep detailed notes on their inspections
could cause the Secretary evidentiary problems
should each violation be the subject of an adversary
evidentiary hearing."

8.

The Secretary urges I consider "substantial reductions"
from the proposed penalties for the two roof control
violations cited in Orders Nos. 7-159 and 7-161 in
Docket No. HOPE 78-620--P. As the Secretary notes:
"The physical evidence to establish that violations
of 75.200 occurred would probably necessitate
reliance on circumstantial evidence and opinion,
in that, if in fact any timbers had been_ set in the
fall area, they were covered by falls themselves and
direct observation was impossible."

Based on the presiding Judge's independent evaluation_and de
novo review of the circumstances, 3/ including the gravity and
negligence indicated, as well as the other statutory criteria,
I find the amount proposed for settlement should be allocated
as set forth in Exhibit A, Schedule of Penalties.
The premises considered, _I conclude the total amount proposed for settlement as allocated is in the public interest and
in furtherance of the purposes and policy of the Act because of
(1) the factors recited in the parties' motion; (2) the fact
that my evaluation indicated it is' unrealistic to expect litigation
would result in any substantial increase in any of the settlement
·amounts; (3) the absence of any assurance that forcing these
matters to trial would be m~re productive in terms of voluntary
I

3/ Counsel for the parties are to be commended for the
cooperation furnished the Presiding Judge in making this evaluation. I wish to commend also my law clerks for their prompt,
dedicated and perceptive responses to my demands for development of
facts necessary to enable me to make the overall evaluation and
detailed review of each violation deemed necessary to ensure
compliance with the Congressional mandate. As a result of the
hard work and cooperation of all concerned, the Presiding Judge
has been ab_le to dispose of 107 violations paid or withdrawn
since April 5, 1979.

277

long-run compliance than prompt approval of the penalties proposed. In this connection, I find it significant that the
operator has undertaken to institute disciplinary action against
errant supervisors for non-compliance with th~ roof control
and combustible accumulations standards.
Accordingly, it is ORDERED that the motion to approve
settlement be, and hereby is, GRANTED. It is FURTHER ORDERED
that the operator pay the agreed upon penalty of $115,000.00
on or before Wednesday, May 30, 1979, and that, subject to payment, the captioned petitions be DISMI
D.

Issued:

April 27, 1979

Distribution:
Gary W. Callahan, Esq., Sewell Coal Company, The Pittston Coal
Group, Lebanon, VA 24266 (Certified Mail)
Edward H. Fitch, Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203

278

,.

,

·.;

..

.

..

,

.;•..-

~..:.J

EXHIBIT.A
SCHEDULE OF PENALTIES

. r. .

DOCKET

ORDER/CITATION

STANDARD

GRAVITY

NEGLIGENCE

AMOUNT

-M-~19

7-0158

75.200

Serious

High degree of
ordinary negligence

$2000

78-620

7-159

75.200

Serious

$1000 (See
supra)

7-161

75.200

Serious

High degree of
ordinary negligence
High degree of
ordinary negligence

7-164

75.200

Serious

High degree of
ordinary negligence

$1000 (See ~8,
supra)
$2000

79-202

7-0309

75.1101-10

---

78-516

7-25

75.200

Serious

High degree of
ordinary negligence

$3000

7-43

75.200

Serious

High degree of
ordinary negligence

$2000

7-0354

75.400

Gross negligence

$7000

7-0423

75 .• 400

Extremely
serious
Serious

High. degree-· of
ordinary negligence

.$3000

7-0455

75.1403-6
(b) (3)

Serious

High degree of
ordinary negligence

$3000

7-0456

75.1403-6
(b) {3)

Serious

High degree of
ordinary negligence

$3000

7-0457

75.1403-6
{b) (3)

Serious

High degree of
negligence

$3000·

75.1725{a)

Non-serious

78-661

7-0482

---

,,a,

Withdrawn

ordin~ry

High degree of
ordinary negligence
.....

$1000

DOCKET

\{ () f E

O~~R/CITATION

STANDARD

GRAVITY

NEGLIGENCE

AMOUNT

78-661
(cont.)

7-0483

75.200

Extremely serious

Gross negligence

$9000

78-662

7-0262

75.200

Extremely serious

Gross negligence

$5000 (See 114,
supra)

7-0270

75.200

Extremely serious

Gross negligence

$5000 (See 114,
supra)

7-0306

75.200

Serious

Ordinary negligence

$1000 (See 117,
supra)

7-0338

75.200

Extremely serious

Gross negligence

$6000 (See 114,
supra)

7-0343

75.200

Non-serious

Minimal negligence

$ 500 (See 117,
supra)

7-0344

75.200

Non-serious

Minimal negligence

$ 260 (See 117,

7-0369

75.200

Very serious

Ordinary negligence

$3500 (See 117,
supra)

7-0431

75.400

Very serious

Gross negligence

$3000 (See 114,
supra)

7-0466

75.200

Extremely serious

Gross negligence

$10000 (See 114,
supra)

7-0552

75.400

Extremely serious

Gross negligence

$6000 (See 114,
suEra)

7-0524

75.1722(a)

Very serious

Gross negligence

$3000 (See 114,
suEra)

7-0533

75.400

Very serious

Gross negligence

$3000 (See 114,
supra)

,

.\~) ~t·:

. >~

supra)

..

. ;;::

;:!'.:·:

::Jir: 1~.: :..

<' :;::·:~ .•. ·.

DOCKET

\\0~1:

NEGLIGENCE

STANDARD

GRAVITY

7-0568

75.400

Very serious

Gross negligence

$3000 (See 114,
supra)

7-0689

75.200

Extremely serious

High degree of
ordinary negligence

$9000

1..:io111

75.400

Extremely serious

Gross negligence

$5000 (See 114,
supra)

7-0766

75.200

Extremely serious

High degree of
ordinary negligence

$5000 (See 117,
supra)

8-0027

75.400

Non-serious

Ordinary

$ 100

8-0028

75.200

Non-serious

Ordinary

$ 100

8-0029

75.200

Non-serious

Ordinary

$ 100

8-0030

75.400

Non-serious

Ordinary

$ 115

8.-0031

75.400

Non-serious

Ordinary

$ 100

8-0032

75.400

Non-serious

Ordinary

$ 110

8-0033

7r:.. .200

Non-serious·

Ordinary

$ 130

8-0034

~·.:;,.

400

Non-serious

Ordinary

$ 110

8-0035

75.200

Non-serious

Ordinary

$ 130

8-0036

75.400

Non-serious

Ordinary

$ Tl5

8-0037

75.200

Non-serious

Ordinary

$ 130

ORDER/CITATION

AMOUNT

78- 62
(cont.)

78-680(See 116,
supra)

DOCKET
79-203

ORDER/CITATION

STANDARD

GRAVITY

NEGLIGENCE

AMOUNT

044007

75.200

Serious

Gross-negligence

$1500 (See 114)

044446

75.200

Serious

Gross negligence

$1500· (See 1[4)

044558

75.200

Serious

Gross negligence

$2500 (See 1{4)

Total

$115,000

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

APR 3 0 1979

. Application for Review of Acts

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
On Behalf of LARRY J. HORN,
Applicant

of Discrimination
Docket No. PIKE 79-9

v.

Pontiki No. 1 Mine

PONTIKI COAL CORPORATION,
Respondent
DECISION
Appearances:

Thomas P. Piliero, Esq., Office of the Solicitor,
Department of Labor, for Larry J. Horn, Applicant;
William H. Howe, Esq., Loomis, Owen, Fellman &
Coleman, Washington, D.C., for Respondent.

Before:

Administrative Law Judge Michels

This is a proceeding under section 105 of the Federal Mine Safety
and Health Act of 1977 brought by the Mine Sa'fety and Health Administration {MSHA) on behalf of the Applicant, Larry J. Horn. Mr. Horn
has alleged that the Pontiki Coal Corporation, which he has named as
Respondent in this proceeding, discriminated against him in connection with a safety dispute at Respondent's Pontiki No. 1 Mine.
On October 24, 1978, MSHA filed an application for temporary
reinstatement of Mr. Horn in his employment with Respondent. Tbe
application included a finding by MSHA on behalf of the Secretary of
Labor that the complaint filed by Mr. Horn alleging discrimination
was not frivolously brought. Thereafter, Acting Chief Administrative
Law Judge Broderick ordered that the Pontiki Coal Corporation reinstate Mr. Horn to a comparable position·at the Pontiki No. 1 Mine at
the rate of pay and the same or equivalent work duties assigned him
immediately prior to his discharge.

Respondent, in answer to that order, disputed the factual basis
of the application, alleged that the case was frivolously brought, and
generally took issue with the appropriateness of the reinstatement.

283

A hearing was held in Prestonsburg, Kentucky, on April 10, 1979,
at which both sides were represente<;l_· by counsel.

"·

At the outset of the hearing, Applicant•s counsel advised that
the parties had reached a mutually acceptable settlement agreement
(Tr. 2). The terms of this agreement were then placed on record:

* * *. Both parties agree to mutual exchange and general
release of any and all claims whatsoever arising out of
Mr. Horn's employment with Pontiki Coal Corporation.
Pontiki Coal Corporation agrees to, one, tender the
amount of $14,000, payable to Larry J. Horn on this
day, April 10, 1979. Two, to expunge from Mr. Horn's
employment record all references to the circumstances
surrounding his discharge of May 9, 1978. Three, to
tender payment pursuant to the order of temporary reinstatement dated October 26, 1978, in full satisfaction
of said order. The tender will be up to and including
April 10, 1979.
Larry J. Horn agrees, one, to withdraw his allegation of discrimination and complaint filed with MSHA on
June 1, 1978. Two, to authorize the Secr~tary of Labor
to withdraw the complaint of discrimination filed.with
the Federal Mine Safety and Health Review Commission on
January 8, 1979. Three, to authorize t.he Secretary of
Labor to move for the vacation of the order of temporary
reinstatement dated October 26, 1978, and four, that he
has no further employment rights with Pontiki Coal
Corporation.
(Tr. 3). Counsel for both parties advised the court that these terms
represent the totality of the settlement agreement (Tr. 3-4).
Thereafter, Mr. Horn was cal led as a witness and gave .the
following testimony in response to the court's questioning:

Q. You did hear the terms read, Mr. Horn, and I
assume that with your attorney you have discussed this,
and I ask you, do you understand fully the terms of this
settlement?
A.

Yes, Your Honor, I do.

Q. You do understand that you are giving up and will
not have employment rights as a result of this settlement -re-employment rights?
A.

Yes, sir, I do.

284

Q. You understand that. Do you have any comment, or
are you fully satisfied with this settlement?
A.

Fully satisfied, sir.

(Tr. 6).
On the basis of the terms of the settlement offered, and on the
basis of Mr. Horn's understanding of and agreement with the terms of
the agreement, the court approved the settlement.
I find that this settlement is in accord with the remedial purposes of the Federal Mine Safety and Health Act of 1977. Accordingly,
I hereby AFFIRM the settlement, as set out above.
As specifically provided for in the settlementi Applicant's
counsel then moved for permission to (1) withdraw Mr. Horn's complaint, and (2) for the court to vacate the order of temporary reinstatement. Both motions were granted at the hearing (Tr. 7). I
hereby AFFIRM these rulings. Accordingly,
It is ORDERED that the parties, to the extent they have not
already done so, comply with the terms of the settlement within
30 days from the date of this decision.
This proceeding is hereby DISMISSED.

' ;:!f:i,~t:;,, p, 9?.!/_L;_fu_.iJ

~Franklin P. Michels

Administrative "Law Judge
Distribution:
Thomas P. Piliero, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Arlington, VA 22203
Mr. Larry J. Horn, Rt. 3, Inez, KY 41224 (Certified Mail)
Pontiki Coal Corporation, c/o C. T. Corporation Systems, Kentucky
Home Life Building, Louisville, KY 40202 (Certified Mail)
William H. Howe, Esq., Loomis, Owen, Fellman & Coleman, 2020 K
Street, NW., Washington, DC 20006 (Certified Mail)
Special Investigations, Mine Safety and Health Administration,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203

285

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

April 30, ,· 1979

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

Civil Penalty Proceeding
Docket No. HOPE 78-433-P
A/O No. 46-01412-02002F

v.
No. 7 Mine
CONSOLIDATION COAL COMPANY,
Respondent
.DEC.ISION . AP:E>ROVLNG. SE'.fT;LEMENT
AND
ORDERING PAYMENT OF CIVIL PENALTY
Appearances:

Robert S. Bass, Esq., Office of the Solicitor, Department of Labor, for Petitioner;
Karl T. Skrypak, Esq., Consolidation Coal Company,·
Pittsburgh, Pennsylvania, for Respondent.

Before:

Ju~ge

Cook

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 (Act) in the above-captioned
proceeding. Subsequent thereto, the proceeding was set for hearing.
At. the time of the hearing, counsel for both parties proposed a
settlement concerning the penalty assessment to be paid by Respondent
as to the alleged violations involved.
·
During the hearing, counsel for MSHA explained the basis for the
settlement and stated that he would file a motion for approval of the
settlement which would embody such explanation.
MSHA filed motions requesting approval of a settlement and for
dismissal of the proceeding. The last motion, filed on April 9, 1979,
provided, in part, as follows:
The Secretary moves to withdraw Notice No. 6-0021,
dated July 6, 1976, and the assessed penalty of $10,000
therefor. In support of this motion the Secretary states:
1. That Notice No. 6-0021 citing a violation of 30 CFR
75.200 was issued in error as the result of.observations

286

made by the inspector after a roof ~all on iuly 6, 1976.
As a result of a thorough inspection on the .following day,
July 7, 1976, inspector Filipek.determined that Respondent
was not removing the last pushout at the time of the roof
fall and therefore was not in violation of Drawing No. 8 of
its roof control plan governing extraction of twin pushouts.
With respect to Notice No. 6-0022, citing a violation
of 30 CFR 75.201, dated July 6, 1976, with an assessed
penalty of $160, the Secretary and Respondent moved to have
the following settlement approved:
1. Respondent has agreed to pay a penalty of $1350.
At any hearing into the alleged violation of 30 CFR 75.201,
there would be conflicting "testimony as to the danger pre~ented to the miners by Respondent's pillar recovery
methods. there would be conflicting testimony· as to
whether or not the operator was following his established
pillar recovery plan, and whether or not following that
plan would have resulted in a sufficiently supported roof
which would have prevented the roof fall which did occur on
July 6, 1976.
2. In the opinion of the Secretary a violation of
30 CFR 75.201 existed, and gravity and negligence were
greater than first evaluated. At any hearing, the Secretary would have put on evidence in an attempt to persuade
.the administrative law judge that the assessed penalty was
unreasonably low. 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.
3. In view of the Secretary's withdrawal of 30 CFR
75.200, Respondent agrees that the Secretary could have
reason for requesting a greater ~enalty than a~sessed for
Notice No. 6-0022.
4. Respondent did demonstrate good faith in attempting
to achieve rapid compliance.
This information, along with the information provided· as to the
statutory criteria contained in section 110 of the 1977 Act which is
attached to the first motiori filed, has provided a full disclosure
of the nature of the settlement and the basis for the original determinations. Thus, the parties have. complied with the intent ·Of the
law that settlements be a matter of public record.
In view of the reasons given above by counsel for MSHA for the
proposed. set~lement, and in view of the disclosure ·as to th.e elements

287

constituting the foundation for the statutory criteria, it appears
that a disposition approving the settlement will adequately protect
the public interest.
ORDER
Actordingly, IT IS ORDERED that the proposed settlement, as outlined abovE!, be, and it hereby is, APPROVED.
IT IS FURTHER ORDERED that the motion of Petitioner to withdraw
the petition as relates to Notice No. 6-0021, July 6, 1976, be, and·
it hereby ts, GRANTED.
IT IS FURTHER ORDERED that Respondent, within 30 days of the date
of this decision, pay the agreed-upon penalty of $1,350 assessed in
this proceeding.

Administrative Law Judge
Issued: April 30,.1979
Distribution:
Robert S. Bass, Esq., Office of the Solicitor, U.S. Department
of Labor, 2106 Federal Office Building·, 911 Walnut Street,
Kansas City, MO 64106 (Certified Mail)
Karl T. Skrypak, EGq., Consolidation Coal Company, Consol Plaza,
Pittsburgh, PA 15241 (Certified Mail)
Administrator for Coal Mine Safety and Health
Standard Distribution

288

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

April 30, 1979

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
MATHIES COAL COMPANY,
Respondent

Civil Penalty Proceedings
Docket No. PITT 79-121-P
A/O No. 36-00963-03007
Docket No. PITT 79-149-P
A/O No. 36-00963-03008
Mathies Mine

DECISION APPROVING SETTLEMENTS
,
AND
ORDERING PAYMENT OF CIVIL PENALTIES
Appearances:

Eddie Jenkins, Esq., Office of the Solicitor,_Department
of Labor, for Petitioner;
Karl T. Skrypak, Esq., Mathies Coal Company, Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Cook

The Mine Safety and Health Administration (MSHA) filed petitions
for assessment of civil penalty pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977 (Act) in the above-captioned
proceedings. Answers were filed and a notice of hearing was issued.
Subsequent thereto, MSHA filed motions requesting approval of settlements and to provide time for payment of penalties.
The motions provid.e, in part, as follows:
a.

As to Docket No. PITT 79-121-P!

The alleged violations in this case and settlement are
identified as follows:
Number

Date

30· CFR

Assessment

Settlement

09901010
00233523
00233137
00233461

5/11/78
6/19/78
6/22/78
6/22/78

70.lOOB
75.517
75!-503
75 .1720A

$ 140

$ 140

255
170
240

255
170

289

0

As grounds for the settlement the Secretary states.
1. The reduction of violation on 00233461 was because
of the decision in North American, 3.IMBA [sic] 93 at 107.
(See PITT 79-150-P)
2.

There was good faith compliance.

3. The settlements other than 00232471 are for 100%
of the assessed penalties.

4. The violations did not pose a significant and
substantial hazard to the health and safety of the
miners. }:_/
.b.

As to Docket" No. ·PiTT 79-i49;.;p:

The alleged violations in this case and settlement are
identified as follows:
Number

Date

30 CFR

Assessment

Settlement

00233471
00233472
00233887

7/13/78
7/13/78
7/24/78

75.1720A
75.1704
75.1707

$ 140
180
150

$ 0
180
150

As groung [sic] for the Settlement the Secretary
states:
1. The reduction of notice 00233471 was because of
the decision in North American Coal Corportion, [sic]
3 IBMA 93 at 107. (See PITT 79-150-P)
2.

There was good faith compliance.

3. The settlements other than 00233471 are for 100%
of assessed penalties.
}:_/ In Docket No. PITT 79-150-P, MSHA filed a motion to withdraw its
petition and to dismiss, which stated, in part, as follows:
"l. The operator did not violate 30 CFR 75.1720A. The operator took the necessary precautions to advise the miners to wear protective eye gear. Therefore, in accordance with the reasoning of
North American Coal Corporation, 3 IBMA 93, which held if 'the failure to wear glasses is entirely the result of the employees disobedience or negligence rather than a lack of a requirement by the
oper·ator to wear them then a violation has not: occurred'. at 107."
[Emphasis. ·in .original. J
.

290

4. The violatio.ns did not pose a significant and
substantial hazard to the health and safety of the miners.
This information, along with the information as.to the statutory·
criteria referred to above and attached to the motions, 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.
In view of the reasons given above by counsel for MSHA for the
proposed settlement, and in view of the disclosure as to the elements
constituting the foundation for the statutory criteria, it appears
that a disposition approving the settlement will adequately protect
the public interest.
ORDER
Accordingly, IT IS ORDERED that the proposed settlements, as
outlined above, be, and hereby are, APPROVED.
IT IS FURTHER ORDERED that Respondent, within 30 days of the
date of this decision, pay the' agreed-upon penalty of $895 assessed
in these proceedings.

~~

~~~~~
..
·ok
Administrative Law Judge
Issued:

April 30, 1979

Distribution:
Eddie Jenkins, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203
Karl T. Skrypak, Esq., Consolidation Coa.l Company, Consol
Plaza, Pittsburgh, PA 15241 (Certified Mail)
Administrator

for Coal Mine· Safety and Health

Standard Distribution

291

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

April 30, -1979 ·

SECRETARY OF LABOR,
M~NE SAFETY ANP HEALTH
ADMINISTRAT~ON (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. BARB 79-117-P
A/O No. 15-08104-03003.

v.
No. 1 Mine
SUE-JAN COAL COMPANY,
Respondent
DECISION APPROVING. SETTLEMENT
"AND.
ORDERING PAYMENT OF CIVIL PENALTY
Appearances:

David F. Barbour, Esq., Office of the Solicitor, Department of Labor, for Petitioner;
Jack McPeek, Sue-Jan Coal Company, St. Charles, Kentucky,
for Respondent.
·

Before:

Judge Cook

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 (Act) in the above~captioned
proceeding. An answer was filed and a notice of hearing was issued.
Subsequent thereto, MSHA filed a motion requesting approval of a
settlement and for dismissal of the proceeding.
MSHA's motion stated, in part, as follows:
Section 104(a) Citation No. 396847·, 7/18/78,
30 CFR 75.523 originally assessed at $90.00

to be settled for $30.00
Gravity and Negligence
The inspector found the panic bar on the Galis 300 roof
bolter to be broken and inoperative. This was a serious
violation because in the event of a miner being caught
'between the rib and the energized machine the roof bolter
could not be instantly stopped. The inability to use the
panic bar thus created the possibility of serious injury
or death (see E~hibit A).

292

Sue-Jan Coal Company (Sue-Jan) should have known of
this violation. The broken panic bar was visually obvious
and its condition should have been observed and corrected
during the required electrical inspection (see Exhibit A).
It was not. Failure to repair the panic bar was the
result of S~e-Jan's ordinary negligence.
Good Faith
Sue-Jan exhibited its good faith in attempting to
rapidly abate the violation by repairing the panic bar
within the time set by the inspect~r.e-·
Size
At the time the violation was written Sue-Jan was a
small company.· It operated only the No. 1 Mine. That mine
employed approximately 13 miners and produced approximately
300 tons of coal per day during one production shift (see
Exhibit B). During the last full year prior to the subject violation its total production was only 7,602 tons of
coal (see Exhibit C, page 1).
Previous History
Sue-Jan had no history of previous violations (see
Exhibit c, page 2).
Settlement Amount
The settlement represents a substantial reduction in
the proposed penalty. However, MSHA believes that reduction is full [sic] justified by the small size of the operator,
by its lack of a prior history of violations and by
following mitigating circumstances.
1. Sue-Jan is no longer in business. The company
ceased operation during November 1978. MSHA inspector
Larry Cunningham (MSHA's Madisonville Kentucky Office)
has confirmed this.
2. Sue-Jan leased the No. 1 Mine. That lease was
terminated in November 1978. The company has no other
leases and plans to acquire none.
3. The company has two stockholders, Jack McPeek and
Dwight Rogers. Neither, they nor the company intend to
resume mining activity.

293

4~
Mr. McPeek claims the company's liabilities exceed
its assets. He has agreed to pay the settlement amount from
his personal resources.

This information, along with the information as to the statutory
criteria referred to above, 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.
In view of the reasons given above by counsel for MSHA for the
proposed settlement, and in view of the disclosure as to the elements
constituting the foundation for the statutory criteria, it appears
that a disposition approving the settlement will adequately protect
the public interest.
Of major significance, are the factors:
1.

That Sue-Jan had no history of prior violations.

2. That Sue-Jan was a small company which is no longer in
business.
3. That a co-owner of the former coal mine operator claims
that the company's liabilities exceeded ~ts assets and such co-owner
has agreed·to pay the settlement from his personal resources.
ORDER
Accordingly, IT IS ORDERED that the proposed settlement, as outlined above, be, and hereby is, APPROVED.
IT IS FURTHER ORDERED that Respondent, within 30 days of the
date of this decision, pay the agreed-upon penalty of $30 assessed
in this proceeding.

Issued: April 30, 1979
Distribution:
David F. Barbour, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Jack McPeek, Sue-Jan Coal Company, Box 245, St. Charles, KY
42453 (Certified Mail)
Jack McPeek, Box 86, Nortonville, KY 42442 (Certified Mail)
Administrator ·for Coal Mine Safety and Health
Standard Distribution
294

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
40l5 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22203

April 30, 1979

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

Civil Penalty Proceeding
Docket No. DENV 79-79-P
A/O No. 02-00533-02014
Black Mesa Strip Mine

PEABODY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
AND

ORDERING PAYMENT OF CIVIL PENALTIES
Appearances:

David F. Barbour, Esq., Office of the Solicitor, Department of Labor, for Petitioner;
Thomas F. Linn, Esq., Peabody Coal Company, St. Louis,
Missouri, for Respondent.

Before:

Judge Cook

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 (Act) in the above-captioned
proceeding. An answer was filed and a notice o-f hearing was issued.
Subsequent thereto, MSHA filed a motion requesting approval of a
settlement and for dismissal of the proceeding.
Pursuant to an order of the Administrative Law Judge, information
as to the six statutory criteria contained in section 110 of the Act
was 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. ·
In its motion, MSHA stated, in part, as follows:
Section 104(b) Notice No. 1 CET (8-0002), 1/17/78,.
30 CFR 71.100 originally assessed at $98.00 to be
settled for $90.00

295

The Violation
Based upon the results of five respirable dust samples
submitted by Peabody Coal Company (Peabody), the inspector
found that the average concentration of respirable dust for
a surface work position exceeded the applicable limit by
2 .3 milligrams.
Gravity and Negligence
The violation was serious in that excessive concentration of respirable dust could lead to the contraction of
pneumoconiosis. Peabody is under a statutory duty to
maintain the concentration of respirable dust within the
prescribed limits. Its failure to do so is prima facie
evidenc~ of a lack of compliance with that duty and
accordingly of it ordinary negligence.
Good Faith
Peabody was given until February 16, 1978, to abate
the violation .. It submitted its samples (which were in
compliance) by February 5, 1978. In so doing it exhibited
more than ordinary good faith in attempting to achieve
rapid compliance.
Size
Peabody Coal Company has a yearly production of approximately 61,707,236 tons per year. (See Exhibit A). The Black
Mesa Strip Mine produces approximately 3,900,364 tons per
year and employs approximately 299 miners (see Exhibits A
and B). Peabody is large in size, as is the Black Mesa
Strip Mine.
Previous History
In the 24 months prior to February 14, 1978, 30 assessable violations were cited in the Black Mesa Strip Mine
during 28 inspection days (see Exhibit A). Given the size
of the mine this represents a small history of previous
violations.
Settlement Amount
MSHA believes the proposed settlement, although modest
for an operator of Peabody's size, accurately reflects the
criteria set forth in the Coal Mine Health· and Safety Act
of 1969 and in its successor, the Federal Mine Safety and
Health Act of 1977, particularly in light of Peabody's
rapid compliance and favorable past history of violations.

296

In view of the reasons given above by counsel for MSHA for the
proposed settlement, and in view of the disclosure as to the elements
constituting the foundation for the statutory criteria, it appears
that a disposition approving the settlement will adequately protect
the public interest.
·
ORDER
Accordingly, IT IS,ORDERED that the proposed settlement, as outlined above, be, and hereby is, APPROVED.
IT IS FURTHER ORDERED that Respondent, within 30 days of the
date of this decision, pay the agreed-upon penalty of $90 assessed
in this procee~ing.

Law Judge
Issued: April 30, 1979
Distribution:
David F. Barbour, Esq., Mine Safety and Health Administration,
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Thomas F. Linn, Esq., Peabody Coal Company, P.O. Box 235,
St. Louis, MO 63166 (Certified Mail)
Administrator for Coal Mine Safety and Health·
Standard Distribut~on

297