December 1982
Commission Decisions
12-8-82
12-9-82
12-15-82
12-17-82

MSHA v. Kocher Coal Company
MSHA v. Alabama By-Products Corporation
Joseph W. Herman v.· IMCO Services
MSHA v. Cleveland Cliffs Iron Company

PENN 80-174-R
BARB 76-153
WEST 81-109-DM
LAKE 80-129-M

Pg.
Pg.
Pg.
Pg.

2123
2128
2135
2141

Administrative Law Judge Decisions
Consolidation Coal Company
12-1-82
Consolidation
Coal Company
12-21-82
Consolidation Coal Company
12-6-82
Allied Chemical Corporation
12-6-82
M & H Rock., d/b/a Applegate Aggregates, Inc.
12-7-82
Cambria Coal Company
12-8-82
Ranger Fuel Corporation
12-8-82
12-10-82 Medicine Bow Coal Company
12-13-82 Garrett Contruction Company
12-13-82 MSHA ex rel Phillip Cameron
12-17-82 BCNR Mining Corporation
12-22-82 Mathies Coal Company
12-22-82 John Petersen, d/b/a Tide Creek Rock Products
12-27-82 Amax Chemical Corporation
12-29-82 Princess Susan Coal Company

PENN 82-89-R
PENN 82-89-R
PENN 82-64-R
WEST 82-97-RM
WEST 81-272-M
PENN 81-145-R
WEVA 79-217-R
WEST 82-153
CENT 81-274-H
WEVA 82-190-D
PENN 82-83
PENN 82-9-R
WEST 80-457-M
CENT 81-129-M
WEVA 79-423-R

Pg. 2147

Pg. 2152
Pg. 2153
Pg. 2163
Pg. 2165
Pg. 2173
Pg. 2198
Pg. 2199
Pg. 2202
Pg. 2205
Pg. 2218
Pg. 2222
Pg. 2241
Pg. 2259
Pg. 2263

Commission Decisions

DECEMBER
The following cases were Directed for Review during the month of December:
Secretary of Labor, MSHA v. Energy Fuel Nuclear, Docket No. WEST 81-385-M.
(Judge Moore, November 10, 1982)
David Hollis v. Consolidation Coal Company, Docket No. WEVA 81-480-D.
(Judge Melick, November 12, 1982)
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket Nos.
PENN 82-203-R, 82-204-R, 82-217. (Judge Merlin, November 24, 1982)
Richard E. Bjes v. Consolidation Coal Company, Docket No. PENN 82-26-D.
(Judge Koutras, November 23, 1982)
Review was Denied in the following cases during the month of December:
Clarence Justice v. McGinnis Coal Company, Docket No. KENT 82-68-D.
Steffey, October 28, 1982)

(Judge

Elmer Harris v. McGinnis Coal Company, Docket No. KENT 82-7-D. (Judge Steffey,
October 28, 1982)

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

December 8, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. PENN 80-174-R
PENN 81-179(A)

v.
KOCHER COAL COMPANY
DECISION
This case on interlocutory review involves a civil penalty proceeding arising under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1976 & Supp. IV 1980). On March 1 9 1977 9 a
fatal inundation-Occurred at Kocher Coal Company 1 s Porter Tunnel Mine.
On February 20, 1980, after the Mine Safety and Health Administration
(MSHA) completed its accident investigation, seven citations and orders
were issued to the operator. A notice of contest of the citations and
orders was filed. Order No. 0611706, the sole order presently at issue,
alleged that the operator failed to drill boreholes required by 30 C.F.R.
§ 75.1701.
On July 17, 1981, the Secretary filed a request for settlement approval
with the administrative law judge. Among other things, the Secretary sought
vacation of Order No. 0611706. The judge denied the settlement motion on
the basis of insufficient supporting information, and scheduled a hearing on
the proposed settlement motion. At the hearing, counsel for both parties
described the conditions leading to the citations and orders. Regarding
the order at issue here, counsel for the Secretary stated that the MSHA
inspector who had viewed the area concerned and the Solicitor did not
believe Kocher violated section 75.1701 by failing to drill the required
boreholes. He also stated, however, that the MSHA district manager who
had issued the order still believed a violation occurred.
On October 19, 1981, the Secretary filed a petition for penalty
assessment for all seven citations and orders. In the petition, the
Secretary reaffirmed his previous request for settlement approval,
including the requested vacation of Order No. 0611706.
On October 26, 1981, the administrative law judge issued an order
approving settlement of six of the citations and orders. The judge
disapproved, however, the Secretary's request to vacate the order
concerning the boreholes and ordered the Secretary to produce the
district manager at an evidentiary hearing. Subsequently, the operator
filed a motion for judgment on the pleadings and a motion to withdraw

2123
82-12-5

its notice of contest. The Secretary supported these motions, restating
his position that no violation of section 75.1701 had occurred. The
judge denied the operator's motions stating that because he would not
grant the Secretary's motion to vacate the order, there were no grounds
for Kocher's motions. The judge certified the case to the Commission
for interlocutory review. In his certification, he observed that his
"conclusion is not free from doubt." The Commission granted interlocutory
review.
The threshold question before us is whether the requested action
pertaining to the subject order is appropriately treated as a motion
for settlement approval or a motion to vacate the order. We conclude
that the latter treatment is necessary. Although the request for
vacation of the order was initially contained in a settlement motion,
it is clear that in substance it was a request to vacate the order,
Further, the subsequent pleadings filed by the parties clearly
demonstrate that they seek vacation of the order rather than settlement,
Also, Commission precedent requires that this type of request not be
treated as a settlement. In Co-op Mining Co., 2 FMSHRC 3475 (December
1980), we reversed a judge 1 s approval of a proposed settlement because
the record established that no violation occurred. See also Amax Lead
Company of Missouri, 4 FMSHRC 975 (June 1982). In
present case,
the Secretary has stated clearly that he does not believe a violation
occurred. The operator concurs. Thus, there can be no settlement; the
Secretary's request must be treated as a motion to vacate the order.
The remaining issue is whether the judge erred in refusing to grant
the Secretary's motion to vacate the order and in requiring the district
manager's attendance at an evidentiary hearing. Preliminarily, we hasten
to dispel any lingering notions on the part of the Secretary that the
Commission and its judges are without authority to review the request
made in this case. VJhen a notice of contest is filed, Commission
jurisdiction attaches, 30 U.S.C. § 815(d). Therafter, any affirmance,
vacation, or modification of the subject citation or order is accomplished only upon order of the Commission. Id.; Climax Molybdenum Co.,
2 FMSHRC 2748 (October 1980), pet. for~· filed, No. 80-2187, 10th Cir.
(Nov. 6, 1980).
The'Secretary's original request for settlement approval cited the
testimony of an MSHA inspector, at an MSHA public hearing, that the
operator had complied with the borehole regulation:
Order No. 00611706 was vacated, since MSHA Inspector Charles
Klinger testified at the public hearing that he had gone up
to the old Weaver slope and observed the hole into it. He
further testified that from his observations, the Respondent
was complying with 30 C.F.R. § 75.1701 at that location (Tr.
770, 772). It should be noted that the No. 15 breast was more
than 200 feet from the Bush slope where the inundation water
came from. Thus, boreholes were not required from the No. 15
breast relative to the Bush slope. The only abandoned working
within 200 feet was the Weaver slope, which had been cut into

212'-i

and drained. In view of Inspector Klinger's testimony, MSHA
does not feel that a violation could be established • .L!JJ
Further, the Secretary's petition for penalty assessment stated:
The Solicitor's Office does not believe that the
violation of 75.1701 ••• existed, Therefore, the
Solicitor's Office with the approval of MSHA has
determined that it will not prosecute this violation.
(Emphasis added). We assume from this statement that the Solicitor
conferred with MSHA before deciding not to prosecute the violation. The
operator agrees with the Secretary's determination not to prosecute. 2/
In light of the reasons given by the Secretary on the record in support
of the request to vacate the order, we hold that in these unique circumstances the judge erred in not granting the motion,
We are cognizant of and fully appreciate the reasons behind the
judge 1 s action. Counsel for the Secretary informed the judge that the
district manager who issued the order still believed that a violation
occurred, We note that conflicts among the opinions of various
Secretarial personnel are not unprecedented occurrences, It is not
clear from the record why the Secretary chose to air this particular
dispute on the public record. Nevertheless, i t is the responsibility
of the Secretary to resolve his internal conflicts and he ultimately
has done so in this case.
We conclude that, insofar as our review of the action officially
requested by the Secretary is concerned, i.e.~ vacation of the involved
order, adequate reasons to support his request have been .stated on the
record.

1/
Shortly after the inundation, the Mining Enforcement and Safety
Administration (MSHA's predecessor) convened a public hearing on the
causes of the inundation. The inspector testified at this hearing. We
note that Kocher's brief in support of the motion for settlement request
also relies on Inspector Klingervs testimony at the public hearing. Kocher
further states that "[N]o reason is advanced why the accuracy or credibility of this inspector should now be brought into question. No conflicting
testimony was elicited." Brief at 5.
J:./ The parties' agreement distinguishes this case from Climax Molybdenum
Co., supra, where the operator objected to the Secretary's attempted
unilateral vacation of the citations therein at issue.

2120

Accordingly, we grant the Secretary's motion to vacate Order No.
0611706 and dismiss this case.

1

/

l /

ktflW!Jbtt«.1
/vi , t p,g;~
osemary MJ Collyer, Chairman
i

•

:

Commissioner

2128

Distribution
Mark N. Savit, Esq.
Cotten, Day & Doyle
1899 L Street, NW
Suite 1200
Washington, D.C. 20036
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

2 1 'J')
_J~

1..,, i

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

December 9, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No, BARB 76-153
v.
IBMA 76-114
ALABA11A BY-PRODUCTS CORPORATION
DECISION
This case arose under the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)("the Coal Act"). 1/
Alabama By-Products Corporation and the Secretary filed cross-appeals
with the Department of Interior's Board of Mine Operations Appeals from
a decision of an administrative law judge affirming in part and vacating
in part a notice of violation alleging a violation of 30 C.F.R.
§ 75.1725(a). !:._/
The cited standard provides:
Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service
immediately.
For the reasons that follow we modify the judge's decision and find a
violation of the cited standard based on the totality of the circumstances
at issue.
The notice described the alleged violation of 30 C.F.R. § 75.1725(a)
as follows:
The no. 1 belt conveyor ••• was not being maintained in safe
operating condition in that there were 13 defective bottom
rollers also the conveyor belt was cutting into numerous
bottom belt structures. The no. 1 belt conveyor ••• was
removed from service.
'};./
In this case, review was sought of an abated notice of violation.
For the reasons stated in our decision in Eastern Associated Coal Corp.,
4 FMSHRC 835 (May 1982), we will review the merits of the notice at this
time. For this reason, we need not address the arguments of the parties
concerning whether the judge correctly concluded that the notice at issue
could be reviewed because it was tantamount to a withdrawal order.
2/
On March 8, 1978, this case was pending on appeal before the Board
Mine Operations Appeals. Accordingly, it is before the Commission
for disposition. 30 u.s.c. § 961 (Supp. IV 1980). The Mine Safety and
Health Administration (MSHA) has been substituted for its predecessor
agency, the Mining Enforcement and Safety Administration.

of

2123
82-12-6

The conditions were cited and corrected and the citation terminated on
that same day. The issues before the Commission are: whether the cited
standard is enforceable; whether the judge correctly interpreted the
duties imposed by the standard; whether the judge's findings of fact concerning the conditions of the stuck rollers and belt are supported by the
evidence; and whether the judge erred by holding that the notice was
valid despite the inspector's failure to follow an internal MESA memorandum concerning the enforcement of section 1725.
On appeal, as it did before the judge, Alabama challenges the
validity of 30 C.F.R. § 75.1725 on two grounds. First, it argues that
the standard is so ambiguously drafted and applied that it is invalid
under the Coal Act. Second, it argues that the standard is unconstitutionally vague. The judge found that he lacked authority to entertain
statutory or constitutional challenges to the validity of standards and
therefore declined to pass upon Alabama's arguments. The Commission has
held "that a challenge to the validity of a standard adopted under the
1969 Coal Act can be raised and decided in an adjudication before the
Commission.u Sewell Coal Co., 3 FMSHRC 1402, 1405 (June 1981). The
Commission has also held that it has the power to determine the constitutionality of the provisions of the mine safety statute itself.
Kenny Richardson 9 3 FMSHRC 8, 17-21 (January 1981), aff'd on other
grounds, 689 F.2d 632 (6th Cir. 1982). In light of these conclusions?
and for similar reasons, we conclude that the Commission has the
authority to decide the challenges to the validity of the standard
raised in this case.
We first address the argument that the standard is unconstitutionally vague. Alabama argues that 30 C.F.R. § 75.1725 "offers no
definite standard of conduct possible of ascertainment with certainty or
clarity" and that it "fails to give fair notice of the nature of
possible violations." The cited standard requires that machinery or
equipment be maintained in "safe operating condition" and that such
machinery immediately be removed from service if it is in an "unsafe
condition." In order to pass constitutional muster, a statute or
standard adopted thereunder cannot be "so incomplete, vague, iridefiriite
or uncertain that men of common intelligence must necessarily guess at
its meaning and differ as to its application. 11 Connolly v. Gerald
Constr. Co., 269 U.S. 385, 391 (1926). Rather, "laws [must] give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly." Grayned v. City of Rockford,
408 U.S. 109, 108-109 (1972).
Therefore, under 30 C.F.R. § 75.1725(a) in deciding whether machinery
or equipment is in safe or unsafe operating condition, we conclude that the
alleged violative condition is appropriately measured against the standard
of whether a reasonably prudent person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts
peculiar to the mining industry, would recognize a hazard warranting corrective action within the purview of the applicable regulation. See, e.g.,
Voegele Co., Inc. v. OSHRC, 625 F.2d ~075 (3d Cir. 1980). Through application of this test to the facts of a particular case, due process problems
stemming from an operator's asserted lack of notice are avoided. Thus, we
reject Alabama's argument that 30 C.F.R. § 75.1725(a) is unconstitutionally

2128

vague on its face. As discussed further infra, applying the above
standard to the facts presented in the case before us, we find no
merit in the operator's contention that it lacked fair notice of the
nature of the violation with which it was charged.
We likewise reject the argument that the standard is so ambiguous
and overbroad that it is void under the statute. Broadness is not always
a fatal defect in a safety and health standard. Many standards must be
"simple and brief in order to be broadly adaptable to myriad circumstances."
Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981). See Ryder Truck
Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). We conclude
that the operator has not established that the Secretary exceeded his
rulemaking authority under the Coal Act in adopting the general standard
at issue requiring that machinery and equipment be maintained in 11 safe"
condition.
The next issue is whether the judge correctly interpreted the duties
imposed by 30 C.F.R. § 75.1725(a). The judge held the standard imposes
three separate duties: (1) a duty to maintain the equipment in safe operating condition; (2) a duty to remove unsafe equipment immediately; and (3) a
duty to repair the equipment if the operator intends to continue to use the
equipment. In Peabody Coal Co., 1 FHSHRC 1494 (October 1979), we construed
an identical standard, 30 C.F.R. § 77.404(a), as having two requirements.
We stated:
The regulation imposes two duties upon an operator: (1) to
maintain machinery and equipment in safe operating condition,
and (2) to remove unsafe equipment from service. Derogation
of either duty violates the regulation.
1 FMSHRC at 1495. We now hold that the terms of the cited standard do
not impose a duty requiring that unsafe machinery or equipment removed
from service be repaired before abatement is accomplished. Rather, once
unsafe equipment is removed from service abatement is completed. If such
equipment is returned to service without repair, an additional, separate
violation of the standard would occur. Accordingly, we hold the judge
erred by imposing a separate duty to repair the equipment as a condition
precedent to abatement.
We now turn to an examination of the judge's findings concerning
whether a violation occurred. The notice of violation issued by the
inspector stated that the "belt conveyor ••• was not being maintained
in safe operating condition in that there were 13 defective bottom
rollers also the conveyer belt was cutting into numerous bottom belt
structures." The judge found a violation based upon the latter condition, but not the former. In our view, in the circumstances of this
case, the judge erred in treating the situation described as constituting
discrete violative conditions. Rather, based upon the wording of the
notice of violation and our review of the entire record, including the
inspector's testimony at the hearing, we conclude that the allegation of
the unsafe condition in this case was based on the combination of the

2130

frozen rollers and the belt running out of train cutting into belt
support structures. }_/
We further conclude that the conditions described in the record
establish a violation of 30 C.F.R. § 75.1725. The operator does not
dispute that the 13 bottom rollers were frozen and that the belt running
out of train was cutting into numerous belt structures. Thus, the
central issue is whether an unsafe condition existed. The inspector
testified that a belt running over a frozen roller will produce friction, leading to a heat source. He also believed that coal residue on
the belts could rub on and accumulate around a frozen roller. He
further testified that friction and heat would be caused by the belt
cutting into the belt structures. The judge found, and we agree, that
the belt running out of train could cause coal to fall off and accumulate. The inspector's testimony regarding the friction sources and
attendant heat build-up was not effectively rebutted by the operator.
We conclude that a reasonably prudent person familiar with the
factual circumstances surrounding the hazardous condition alleged here,
including any facts peculiar to the mining industry, would recognize
that the cited equipment was in an unsafe condition. The danger posed
in underground coal mining by a friction source that will lead to a heat
buildup in an area where coal accumulations could occur is obvious.
Where such dangers are present due to defects in the operating condition
of equipment, that equipment cannot be considered in safe operating
condition. In light of the nature of the danger, the evidence relied
upon by the operator concerning other conditions in the area, i.e., that
the belt was wet and fire-resistant, the area was adequately rock-dusted
and ventilated, and coal accumulations were not then present, is not
controlling as to whether an unsafe condition existed. Rather, these
factors are appropriately considered in determining the "gravity" of the
violation when a penalty is assessed. 30 U.S.C. § 820(i). As the Tenth
Circuit has observed in a decision upholding a violation of the identical standard at issue here: "It is clear that Congress intended the
Mine Act to both remedy existing dangerous conditions and prevent dangerous situations from developing." Mid Continent Coal & Coke Co. v.
FMSHRC, No. 792271, 10th Cir., Sept. 24, 1981; 2 BNA MSHC 1450. In the
present case, upon observing the defective equipment at issue, it was
not necessary for the inspector to wait until the feared hazard fully
materialized before directing remedial action.
The final issue in this case involves an internal MESA memorandum
concerning the enforcement of 30 C.F.R. § 75.1725. That memorandum
stated:
3/
Both parties agree with this view of the case. In its brief to us,
the operator states that the "belt allegedly running out of train was
simply a condition which resulted from the frozen rollers." Br. at 15.
The operator further states that "[t]here was no evidence ••• that the
frozen rollers caused the belt to run out of train simply because it was
obvious that this had occurred." Br. at 14 n. 15. Similarly, in its
brief MSHA states that "the condition.of the thirteen defective belt
rollers, coupled with the belt running out of train and cutting into
numerous belt structures, is unsafe according to a proper construction
of 30 C.F.R. § 75.1725." Br. at 16 (emphasis added).

213.i

••• When an operator is made aware that equipment or machinery
is in an unsafe operating condition, by any person, the action
of the operator immediately following notification determines
whether or not a violation occurs. If the faulty equipment is
immediately removed, there is no violation. If the operator
continues to use the faulty equipment, he is in violation. !:._/
(Emphasis added.)
The operator notes that the Secretary acknowledges that the directive
was not followed in the present case. Had the memorandum been followed,
the notice of violation would not have been issued since the operator
immediately removed the belt conveyor from service.
We agree with the judge~s holding that the memorandum's interpretation of the standard is contrary to the plain language of the standard.
We hold that the legal effect of the memorandum is similar to that of
the Secretary's enforcement manuals discussed in King Knob Coal Co.,
3 FMSHRC 1417 (1981):
Regarding the Manual~s general legal status, we have previously
indicated that the Manual's "instructions are not officially
promulgated and do not prescribe rules of law binding upon
[this Commission]." Old Ben Coal Company, 2 FMSHRC 2806, 2809
(1980). In general, the express language of a statute or
regulation "unquestionably controls" over material like a
field manual. See H.B. Zachry v. OSHRC, 638 F.2d 812, 817
(5th Cir. 1981) •••• This does not mean that the Manual's
specific contents can never be accorded significance in
appropriate situations. Cases may arise where the Manual or
a similar MSHA document reflects a genuine interpretation or
general statement of policy whose soundness commends deference
and therefore results in our according it legal effect. This
case, however, does not present that situation.
3 FMSHRC at 1420 (emphasis added). Accordingly, we accord no legal
effect to the memorandum and affirm the judge's holding that the failure
to follow it does not invalidate the notice.

!:_/

Internal agency directive from Jo~n Crawford, then Assistant
Administrator for the Coal Mine Health and Safety Division of MESA
(July 14, 1975).

2132

For the forego
reasons, the judge's decision is modified and
the notice alleging a violation of 30 .F.R. § 75.1725(a) is affirmed.

,missioner

A.

E)f~s.in~mis~ioner

L

Clair Nelson

~{~
\'

2133

Coinmissioner

Distribution
J. Fred McDuff, Esq.
Fournier J. Gale, Esq.
Alabama Ev-Products Corporation
P.O. Box 10246
Birmingham, Alabama 35202
Michael XcCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Harrison Combs, Esq.
lJM\./A

900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge George Koutras
Fed. Mine Safety & Health Rev. Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

213 1
1

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

December 15, 1982

JOSEPH W. HERMAN
v.

Docket No. WEST 81-109-DM

IMCO SERVICES
DECISION
This case arises under section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 ~~· (1976 & Supp. IV 1980).
In his decision below, the administrative law judge held that the
discrimination complaint giving rise to this proceeding was not timely
filed and, therefore, he dismissed the complaint. 4 FMSHRC 1540
(August 1982)(ALJ). The judge proceeded, however, to discuss and
make further findings concerning the merits of the complaint. For
the reasons that follow, we affirm the dismissal. Accordingly, we
find it unnecessary to consider or address the question of whether
a violation of section lOS(c) occurred.
Complainant Joseph W. Herman was employed as a senior project
engineer at IMCO Services's Mountain Springs Plant near Battle Mountain,
Nevada. Herman's duties encompassed field engineering and supervision
of the construction of facilities at the Mountain Springs Plant to
increase the production of barite. 1/ In the period of March-April
1979, work on the expansion project-had progressed to the stage where
a barite storage bin was to be erected. Based on his experience and
information available to him, Herman believed that a serious safety
problem existed due to the design of the bin and its intended use.
To put it simply, Herman believed that the weight of the bin itself,
the weight of the amount of barite that could be stored in the bin,
and the relevant stress factors to which the structure would be
];./
From the record it appears that IMCO's operations involved three
interrelated stages and facilities. Barite ore was extracted from an
open pit mine, subjected to a process to up-grade the ore, and then
further processed through a grinding operation. There is no dispute
that the facility at which Herman worked falls within the coverage
of the Mine Act. As an employee working at this facility, Herman
was a "miner" within the meaning of the Act. 30 u.s.c. § 802(g).

')1 ' ) -~ .l u 0

82-12-7

subjected, would prove too great a load for the bin's designed support
system, resulting in a collapse of the entire structure. 2/
The evidence also indicates that, at the time that the expansion
project had progressed to the barite bin erection stage, IMCO was
concerned with cost-overruns and budget constraints. In any event,
on or about April 9, 1979, Herman and his superior in Houston, Texas
communicated by telephone. Whatever else was said in this conversation, it is at least clear that Herman WqS advised that his phase of
the project was to be halted and that he and others involved would
be terminated. ]../
On April 11, 1979, representatives of MSHA visited the site, at
the request of Herman, to discuss the storage bin project. Other
company personnel attended this meeting. 4/ As a result of this
meeting, a report w~s prepared by MSHA 1 s Denver Technical Support
Center concerning the bin design. This report concluded that on the
basis of available information the storage bin should be redesigned.
The report, however, was not issued until after Herman had been
terminated.
Section lOS(c)(l) of the Mine Act, 30 U.S.C.
pertinent part provides:

§

81S(c)(l), in

No person shall discharge or in any manner discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere with the exercise of the statutory rights of
any miner ••• because such miner ••• has filed
or made a complaint under or related to this
Act, including a complaint notifying the operator
or the operator's agent ••• of an alleged danger
or safety or health violation in a ••• mine, or
because such miner ••• has instituted or caused to
be instituted any proceeding under or related
to this Act ••• or because of the exercise of
such miner ••• of any statutory right afforded by
this Act.
2/
The record reveals that Mr. Herman's concerns were well-founded.
Each of IMCO's witnesses testified that they became aware of the
problem with the bin design. Although memories were vague as to
exactly how each of the witnesses became aware of the problem, it is
clear that the problems were known to these company personnel while
Herman was still employed by IMCO.
·
3/
When Herman's termination actually became effective is unclear.
He continued working to phase out construction until April 13, 1979.
He may have been carried on the payroll until April 20th.
!±/ Precisely when company personnel who did not attend the meeting
learned that the meeting was to occur·,,, or had occurred, is disputed.
In any event, shortly thereafter i t was common knowledge that MSHA
became involved at Herman's request.

2130

Section 10S(c)(2) of the Act, 30 U.S.C. § 815(c)(2), further provides:
Any miner ••• who believes that he has been discharged, interfered with, or otherwise discriminated
against by any person in violation of this subsection
may, within 60 days after such violation occurs, file
a complaint with the Secretary [of Labor] alleging
such discrimination. ****
At the hearing, after Mr. Herman had completed presentation of
his case-in-chief, counsel for IMCO made a motion to dismiss Herman's
complaint on the basis that it was not
filed under section
105(c)(2). Herman made a statement in opposition and testified
against the motion. The administrative law judge took the motion
under advisement and IMCO proceeded with its case, In his final
decision the judge addressed the timeliness issue and concluded
that Herman's complaint should be dismissed. We agree,
Section 105(c)(2) of the Mine Act, quoted previously, requires
that complaints of discrimination under the Act be filed "within
60 days after such violation occurs" (emphasis added). The legislative history relevant to this filing provision states:
While this time-limit is necessary to avoid stale
claims being brought, it should not be construed
strictly where the filing of a complaint is
delayed under justifiable circumstances. Circumstances which could warrant the extension of the
time-limit would include a case where the miner
within the 60-day period brings the complaint to
the attention of another agency or to his employer,
or the miner fails to meet the time limit because
he is misled as to or misunderstands his rights
under the Act.
S. Rep. 95-181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 624 (1978) (1'Legis. Hist.") (emphasis added).
The events that form the basis of Herman's complaint of discrimination occurred in April 1979. However, the first action that Herman
took relative to filing any complaint concerning those events did not
occur until March 3, 1980. 2_1 Thus, the discrimination complaint in

2_1

On this date Herman apparently mailed a letter to the Nevada
Employment Security Department. Although this letter is not in evidence, a March 11, 1980, letter from the Nevada Department of
Occupational Safety and Health to Herman, informing him that his
inquiry had been referred to it, is o.f record. In this letter,
,,

(Footnote continued)

this case was filed ll months after the incidents complained of had
occurred, and 9 months after the expiration of the time period specified
in the statute regarding the filing of such complaints.
We conclude that the record does not reveal 11 justif iable
circumstances" for this extraordinary delay. Legis. Hist. at 624. In
essence, Mr. Herman's testimony and statements of record indicate that
he did not file any complaint before March 1980 simply because he did
not want to do so. He had been more concerned with the safety of the
bin than with his discharge. However, after mulling his situation over
for some time (during which time he allegedly discussed his situation
with various unidentified safety officials), and after he "kind of took
a walk in the park one night" (Tr. 152), he concluded that he had been
wronged and that he desired to be vindicated. Consequently, in March 1980,
Herman finally took his first official step by complaining to the Nevada
Employment Security Department.
We conclude on the basis of the entire record that Herman's prolonged hesitation in filing a discrimination complaint cannot be
attributed to his being misled as to or a misunderstanding of his
rights under the Act. Rather, the record reveals that he had direct
contact with MSHA officials during the period that the events now complained of occurred, as well as after his termination. Quite simply, he
had abundant opportunity and the ability to go forward with his complaint
in a more timely fashion, if he had then desired to do so. Although the
record reveals confusion on Herman's part concerning the procedure for processing his complaint once it had been filed, these misunderstandings are
not relevant to the reasons for his delay in filing a complaint and, hence,
they do not excuse the late-filing.
The placement of limitations on the time-periods during which a
plaintiff may institute legal proceedings is primarily designed to assure
fairness to the opposing party by:

fn. 5/ continued
Nevada OSHA forwarded an employee complaint form to Herman. Herman
subsequently filed a completed complaint with Nevada OSHA, dated April 4,
1980. By letter dated April 29, 1980, Herman was informed that this
complaint had been referred to the U.S. Department of Labor's Mine Safety
and Health Administration (MSHA). This letter notified Herman that an
MSHA special investigator had been appointed. (An April 25, 1980 letter
from the special investigator to Herman is also in evidence.) By letter
dated September 3, 1980, MSHA informed Herman that it had determined that
illegal discrimination under the Act had not occurred. See 30 u.s.c.
§ 815 (c) (2) & (3). Herman thereafter.. instituted this proceeding before
the Commission in his own behalf pursuant to 30 U.S.C. § 815(c)(3).

••. preven
surprises through the revival of claims
that have been allowed to slumber until evidence has
been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just
claim it is
ust not to put the
on notice
to defend within the period of limitation and that
the right to be free of stale claims in time comes to
prevail over the right to prosecute them.
Burnett v. N.Y. Central R.R. Co., 380 U.S. 424, 428 (1965), quoting
R.R. Telegraohers v.
321 U.S. 342, 348-49 ( 94
\k find that
the record in the present case underscores the above concerns. Al
the operator was able to
testimony and documentary evidence i::i
support of its position, the record is replete with examples of faded
memories as well as the unavailability of potential
relevant evidence,
To be balanced against this policy of repose, however, are considerations of whether "the interests of justice
vindication of
plaintiff's rights" in a particular case. Burnett
380 U.S.
at 428. As discussed previously, we do not
usti ia le circunstances excusing Herman's egregious delay in instituting this
For these reasons, we affin:i the dismissal of the car.plaint
untimely filed. 6/

~~Commissioner

'

,
I
i . ·/

:ciaiNel;on, Commissioner

6/
In light of our conclusion we do not reach the judge's "alternative"
discussion of the merits of the discrimination claim. Because the judge
had decided that the complaint must be dismissed, his further discussion
regarding whether under the circumstances discrimination occurred constitutes unreviewed dicta. Also, in light of our decision, other
motions of the operator are denied.

2138

Distribution
Richard 0. Kwapil, Jr., Esq.
Woodburn, Wedge, Blakey and Jeppson
Sixteenth Floor
First Interstate Bank Bldg.
One East First Street
Reno, Nevada 89505
Mr. Joseph Herman
3525 San Mateo Avenue
Reno, Nevada
89509
Administrative Law Judge John Morris
Fed. Mine Safety & Health Rev. Commission
333 West Colfax, Suite 400
Denver, Colorado 80204

1 "0
2 ..lll

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

December 17, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 80-129-M

Vo

CLEVELAND CLIFFS IRON COMPAi.'iJY
UNITED STEELWORKERS OF AMERICA,
DISTRICT NO. 33
Intervenor
DECISION
This penalty case arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. IV 1980), and involves
the interpretation and applicati~of 30 C.F.R. § 55.12-16. The standard
provides in pertinent part:
Mandatory. Electrically powered equipment shall be
deenergized before mechanical work is done on such
equipment, •••
-

The administrative law judge concluded that the operator, Cleveland Cliffs
Iron Company ("CCI"), violated the standard.]:./ We granted CCI's petition
for discretionary review and heard oral argument. For the reasons that
follow, we affirm.
The facts are undisputed. On May 19, 1979, an electrical apprentice
was electrocuted while he and two other apprentices were rehanging highpressure sodium light fixtures in the high bay of CCI's Empire Mill. After
an investigation of the accident, MSHA ~ssued a citation which stated:
Apprentice electricians were assigned to relocate
1000 watt, High Pressure Sodium "Halophane Prismpack 11
lights, powered by 480 volts Alternating Current, on
the ceiling above the primary grinding section in the
concentrator. The lighting equipment was energized
during installation ••••
1/

The judge's decision is reported'C}t 3 FMSHRC 2324 (October 1981)

(ALJ).
82-12-8

214.i

The light fixtures were hung on ceiling I-beams located approximately 80 to 100 feet above the floor of the mill. The operator had
assigned the apprentices to move the light fixtures from one I-beam to
another. The employees used an overhead crane and trolley assembly as a
work platform. They placed an aluminum ladder on the crane trolley so
they could reach the fixtures and electrical outlets ~uring relocation,
The employees relocated the first light in the following manner:
They moved the crane into position under the electrical outlet, put
the ladder up against an I-beam to reach ·the plug, and unplugged the
light. They took the ladder down, turned it 180 degrees and moved the
crane trolley to a position where the ladder could reach the light
fixture, They took the light fixture down, replaced its electrical
cord with a longer cord, and wired the three-prong twist lock plug from
the old cord onto the new, They then rehung the light fixture on another
I-beam 8 to 10 feet away from its original location" Once more they
turned the ladder 180
, moved the crane trolley back underneath
the electrical outlet, put the ladder back up, and plugged the light fixture with its new longer cord back into the electrical outlet,
In relocating the second light fixture, the employees changed the
procedure to eliminate one of the 180-degree rotations of the ladder,
because they believed these rotations on the elevated trolley were the
most dangerous part of the operation. Under the new procedure, the
fixture remained energized at several points during the process. Whe~
the employees took the fixture down from its hanger, they did not unplug
it. After the light fixture was down, they unplugged it, replaced the
cord with a longer one, reattached the plug, and plugged the fixture
back into the energized 480 volt outlet. The employees then rehung
the energized fixture in its new location. The relocation of the second
fixture was accomplished without incident,
The fatal accident occurred as the employees were relocating the
third light fixture, using the same procedure they had already used for
the second. They removed the fixture from its hanger while energized,
then unplugged it. They replaced the cord with a longer one, and wired
the three-prong plug from the old cord onto the new. Before rehanging
the fixture they replugged it into the energized 480 volt electrical
outlet. As one of the employees climbed the ladder to rehang the
energized fixture, he grasped the conduit of the fixture (a pipe-shaped
stem) and received a fatal electric shock. 2/
The parties did not dispute before the judge that the second and
third fixtures were energized at times during their relocation. In
concluding that CCI violated the standard in connection with the
];}
The shock occurred because the three-prong plug had been miswired.
Once the miswired plug was inserted into the outlet, the conduit had become
energized.

2142

relocation of the lights, the judge determined that the light fixtures
were "electrically powered equipment" and that the employees' handling,
hoisting, and hanging the fixtures constituted "mechanical work."
Before us, CCI makes two major arguments. First, it argues that the
words 11 electrically powered equipment 11 and "mechanical work" indicate
that the standard does not apply to the light fixtures involved in this
case, but rather only to electrical equipment with moving parts. Second,
the operator contends that the employees' relocation of the lights was
not 11 mechanical work." 3/ We do not agre_e.
CCI's first argument amounts to a rewriting of the standard to
apply to "electrically powered mechanical equipment. 11 We must construe
the standard as it is written; it uses the broad term "electrically
powered equipment." "Mechanical" modifies "work," not "equipment." We
accordingly reject CCI's narrow reading of this phrase. As to the light
fixtures involved in this case, the judge correctly determined that they
are "equipment" within the ordinary meaning of that word. The phrase
"electrically powered" clearly includes equipment, such as the fixtures
here, whose source of power is electricity. Therefore, we conclude that
these 1000-watt high-pressure sodium light fixtures, powered by
electricity rated at 480 volts, are "electrically powered equipment"
within the meaning of the standard.
Finally, we consider whether the work involved in the relocation
and installation of the fixtures was "mechanical work." The lights
involved in this case were fixed, carried high voltage, and were located
80-100 feet above the floor. The light fixtures were large, The screw
fittings and conduit assemblies were about five feet long. Taking the
fixtures down, handling them, and rehanging them was relatively
difficult and complex work given the nature of the job and the way it
was necessary to accomplish the job. We conclude this work comes within
the ordinary meaning of the words "mechanical work." We do not accept
CCI's argument that if these activities constitute mechanical work, the
standard would apply to the ordinary use or handling of energized portable
electric equipment. Neither ordinary use, nor mere touching alone, nor
portable equipment is involved here. Therefore, we conclude that under
the facts of this case, mechanical work was being done on the light fixtures.

3/
CCI also argues that this standard does not protect against shock
hazards, but only against mechanical hazards caused by equipment with
moving parts. The plain language of the standard, however, imposes no
such limitation. Where specific hazards are mentioned in other parts of
section 55.12, they are shock or burn hazards. Such hazards are among
the most common associated with equipment using electricity.

2143

In sum, CCI's employees performed mechanical work on electrically
powered equipment while the equipment was energized. Accordingly, we
affirm the judge's conclusion that the operator violated 30 C.F.R.
§ 55.12-16. 4/

L. Clair Nelson, Commissioner

4/
At one point in his decision, the judge stated: "The violation
coupled with the accidental miswiring of the plugs, resulted in the
••• fatal electrical accident •••• " 3 FMSHRC at 2337. We note that
the miswiring did not constitute the violation. The violation occurred
when the employees worked on the light fixtures while they were energized.
The miswiring and the energizing of the conduit illustrate why mechanical
work on energized electrical equipment is prohibited by the standard.

Distribution
Ronald E. Greenlee, Esq.
Clancey, Hansen, Chilman,
Graybill & Greenlee, P.C.
Peninsula Bank Building
Ishpeming, Michigan 49849
Harry Tuggle,
United Steelworkers of America
5 Gateway Center
Pittsburgh, PA 15222
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd:
Arlington, Virginia 22203
Ernest Ronn
United Steelworkers of America
706 Chippewa Square
Marquette, Michigan 49855
Paul Gravedoni
United Steelworkers of America
936 Baldwin Avenue
Megaunee, Michigan 49866

Administrative Law Judge Decisions

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

CONSOLIDATION COAL COMPANY,
Contestant

CONTEST OF CITATION

v.

DOCKET Noo PENN 82-89-R
Citation Noo 114398S;
2/12/82

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

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY A.ND HEALTH
R'-VIEW COMMISSION,
Petitioner

DOCKET Noo PENN 82-208
A.Co Noo 36-00807-03113

Vo

C JSOLIDATION

COAL COMPAJ.'l'Y ~
Respondent
Renton Mine
DECISION

Apperances:

Robert M. Vukas, Esq., Pitt
, Pennsylvania, for
Consolidation Coal Company;
Janine G. Gismondi, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for the Secretary of Labor.

Before:

Judge Melick

These consolidated cases are before me, pursuant to sections 105(a) and
lOS(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
!:_! ~·, (the "Act") to contest a citation issued to the Consolidation
Coal Company (Consol) pursuant to section 104(a) of the Act and for review
of a civil penalty proposed by the Mine Safe
and Health Administration
(MSHA), for the violation charged in that citation. The general issue before
me is whether Consol violated the regulatory standard at 30 CFR § 75.1725(a)
as alleged in Citation No. 1143985 and, if so, whether that violation was
"significant and substantial" as defined in the Act and interpreted by the

Commission in Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC
822. An appropriate civil penalty must also be assessed if a violation is
found. Evidentiary hearings on these issues were held in Falls Church, VirThe cited regulatory standard, 30 CFR § 75.1725(a) provides as follows:
Mobile and stationary machinery and equipment shall
be maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service
immediately.
The citation at issue reads as follows:
The emergency escape hoist at Center Beach intake shaft
was not maintained in a safe operating condition in that when
the conveyance was lowered to the shaft bottom land
, the
conveyance was being
led under the shaft collar, Subsequently, when the conveyance was raised to the surface, it
would contact the shaft collar and be jerked back and forth
in the shaft,
The essential facts in this case, as all
in the citation and as amified by MSI-l~ inspector Dennis Swentosky, are not in dispute. Consol argues
only that those facts do not constitute a violation of the cited standard,
and that even if those facts do constitute a violation of the standard, that
the violation was not
ignificant and substantial 11 • Inspector Swentosky testified that on February 12, 1982, he was helping MSHA Inspector Gerald Davis
check the emergency escape hoist at the Center Beach intake shaft. Swentosky
observed the capsule being raised three times. Because of the high veloc
of the mine ventilation, each time the capsule was raised, it moved under and
contacted the shaft collar. The capsule then proceeded to swing back and
forth in the shaft (though not striking the shaft) as it was raised.
Inspector Davis testified that he had observed the same problem with the
capsule during seven or
trips on October 2, 1980. A citation was issued
at that time under the
tory standard at 30 CFR §75.1704. According to
Davis, various .modes of corrective action could have been taken to prevent the
capsule from striking the shaft collar. He observed that rails could have
been placed on the platform, a guiderope could have been run down the full
length of the shaft, wire ropes or a grating could have been placed across
the entry to prevent the capsule from deviating off course, or the platform
itself could have been raised to elevate it above the effect
the-ventilation.
While not disputing this evidence, Consol argues that the cited standard
addresses only the maintenance, in safe operating condition, of mobile and
stationary machinery and
pment. More specifically, Consol argues that the
standard protects only against intrinsic defects in machinery and equipment
that would affect safe operation. Thus, Consol argues that since the only

2148

defects
by.USHA in this case were factors extrinsic to the escape capsule itself, there was no violation of the cited standard. Indeed, all of the
cases involving this standard cited by the Secretary in his brief involve
inherent defects in the equipment itself. See Hid-Continent Coal and Coke
FNSHRC 1501 (1979), aff'd, 2 HSHC 1450 (10th Cir., 1981) in which
to have been maintained in an unsafe condition due
lever on the hoist assembly used to open the
, 3 FMSHRC 2410 (1981) in which a conveyer was found to
in an unsafe operating condition due to faulty belt
rollers; and Amherst Coal Co., 2 FMSHRC 597 (1980) in which a scoop was found
to have been
an unsafe
condition due to an inoperative
lead wire.
However, even assuming,
the standard is limited in application to intrinsic defects in
or equipment, I would nevertheless
find a violation in this case. There does not seem to be any dispute, and in
any event I find, that the movement of the escape capsule into the shaft
collar was not safe
or not it was a 11 significant and substantial"
hazard).
Inspector Davis
moreover, that one method of correcting the
unsafe condition would be to modify the
itself by at
it to a
guide rope
the full
of the shaft. Thus, one method of abatement implicitly called for modifications to what may be considered defects
intrinsic to the capsule itself. The fact that other options for abatement
also existed wl1ich were extrinsic to the escape capsule and that the operator
indeed may have chosen one of those modes of abatement is immaterial.
In any event, it is apparent that the citation charges that the emergency
escape hoist system (not merely the escape capsule as an isolated ?iece of
equipment or machinery) was unsafe. Thus, if any part of that integrated
of machinery and equipment was not being maintained in a manner in
which the entire system could have been saf
operated, then there was a
violation of the cited standard. Here the ,~vidence shows that there were
intrinsic defects in that system of machinery and equipment that allowed the
capsule to strike the shaft collar. The system was therefore in an unsafe
condition in violation of the cited standard.
Whether that violation is "significant and subs
, however,
on whether, based on the
icular facts surrounding the violation, there
existed a reasonable likelihood that the hazard contributed to would have
resulted
of a reasonably serious nature. Secretary v. Cement
.:__.:__.:__-'-"'-"~~~~~~_d._=-=--'-'--C~o_. ,
The test essentially involves two
cons
ions,
probability of resulting injury, and (2) the seriousness of the resulting injury.
In this
, it is interesting to note that
the same condition cited in this case had on a prior occasion been found by
r1SHA not to have been "s
icant and substantial" under the more liberal definition of that concept then in effect. In any event, I find i'!SH.A's evidence
concerning the
hazards associated with the cited conditions to be
speculative. For example,
Swento
speculated that a person in the capsule s
to a stretcher with serious neck injuries could

2149

possibly sustain further injuries-if the capsule struck the collar with sufficient force. He also speculated that someone might receive knee injuries
from bouncing against the side of the capsule. While he thought knee injuries
could "possibly" occur, he was not aware that any such injury had ever occurred. Moreover, Swentosky
that he did not consider the use of the capsule in the condition cited to be imminently dangerous nor did he deem it
necessary to have it removed from service. He did not know whether the emergency hoist at issue had ever previously been used or whether the rate of
ascent could be controlled at a slow rate of speed --factors important to
ascertaining the probabilities.
Inspector Davis also speculated that if the capsule
caught under the
collar, the bridle chain might be stretched and
the wire rope at that
location. There is no evidence, however, that the capsule ever did get caught
under the collar in spite of extensive testing. Moreover, since the top of
the capsule was tapered, it appears unlikely that it could get caught under
the collar. While Davis also observed that the capsule once hit the side of
the shaft so hard that it severed the communications cable -- a cable about
as thick as standard house wire -- I am unable to translate that incident to
any probable hazard of a serious nature.
There is also divergence of opinion as to the sever
of the hazard.
Mine Superintendent Andrew Hathaway testified for example that during tests
on February 13, 1982, he saw the capsule scrape the shaft collar, but not
violently, and only "about 50% of the time or less". Moreover, according
to Hathaway the capsule had been used only three times since 1975 and had
never been used in an emergency.
Within this framework of evidence, it does not appear likely that the
hazard contributed to would have resulted in any serious
Accordingly, I do not find that the violation in this case
s "significant and
substantial". For the foregoing reason, I also do not find a high level of
gravity associated with the violation. I find, however, that Consol was
negligent in allowing the unsafe condition to have exis
without apparent
correction for more than a year. The evidence shows that the operator did
abate the condition in a timely manner after the citat
herein was issued.
There is no dispute that the operator is large in size and that the mine at
issue has a fairly substantial history of violations. Under the circumstances, I find that a civil penalty of $250 is appropriate.

Ci tatfon No. 1143985 is affirmed, however, the "~· gnificant and substantial" findings made therein are hereby stricken. The onsolidation Coal Company is ordered to pay a civil penalty of $2 0 for th ·cited violati
within
30 days of the date of this decision.

Gar

Distribution:

Page S.

2150

Distribution:

By certified mail.

Robert M. Vukas, Esq., Consolidation Coal Company, Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241
Jeanine C. Gismundi, Esq., Office of_.the.Solicitor, U.S. Department .of Labor,
Room 14480 Gateway Building, 3535 Market Street, Philadelplhiai PA 19104
Harrison B. Combs, Jr., Esq., United Mine Workers of America, 900 Fifteenth
Street, N.W., Washington, DC 20005

2151

FEDERAL MINE SAFETY AND HEALTH REVIEW COM.M.ISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, lOtti FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

CONSOLIDATION COAL COMPANY,
Contestant:

DEC 21 l9lrl

CONTEST OF CITATION

v.

Docket- No. PENN 82-89-R
Citation No. 1143985;
2/12/82

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

Renton Mine

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

CIVI.L PENALTY PROCEEDING
Docket No. PENN 82-208
A.C. No. 36-00807-03113

v.

Renton Mine
CONSOLIDATION COAL COMPANY,
Respondent
AMENDED DECISION
The decision in these cases is hereby amended so that
the docket number in the above-captiorn:~d Civil Penalty
Proceeding shall become PENN 82-208A. New docket number
PENN 82-20BB will include Citations No. 840955 and 8409~6
(2/l/82), and
l pleadings corre ponding to those citations
heretofore
by the parties i ' Docket No~ PENN 82-208
are hereby incorporated in Docket
PENN 8 ~208B.

A

\Ll(t,
Gary

Distribution:

By

!

.

:

~e 1c~"J\

'
i

ce::~~::\ C~~e~\ <~inistrat
t

Law Judge

_Jal

Robert M. vukas I Esq. I Conso'lidatioA.
Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241
Jeanine C. Gismundi; Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535
Markat Street, Philadelphia, PA 19104
Harrison B. Combs, Jr., Esq., United Mine Workers of America,
~OJ Fifteenth Street, N.W , Washirgton, DC 20005

2152

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

CONSOLIDATI0:.'1 COAL COHPANY,

22041

Contests of Order

Contestant
Docket IJo. PENN 32-64-?.
Order No. 1143777;
/82

v.
SEC;IBTARY OF LABO:l,
HE~:C

SAFETY AND HEALTH
AJTUNISTRATION (USHA),

Docket :~o. I'ElH 32-66-R
Order No. 1142931;
lJ/02

Respondent
Renton ~tine
SECRETARY OF LABOR,

Civil Penalty Proceed

:ni:rn SAFETY AND HEALTE
AD1'lli::ISTRATIO:~

(~1SHA),

Petitioner

Docket r~o. ?Eim 32-13£:
A.C. No. 36-00807-0J112V

v.
co~rnOLIDATIO~~

COAL CG:f1PANY'

:Uocket lfo. PE~~N 82-109
A.C. ~lo. 36-00807-03109V

Respondent
Renton ~line
DEC IS IO~~
Appearaaces:

David T. Bush, Esq., Office of the Solicitor, U.S. Depart~ent
of Labor, Philadelphia, I'ern'.1sylvania, on behalf of the
Secretary of Labor;
Robert ~-1. Vukas, Esq., Pittsburgh, Pennsylvania, for
Consolidation Coal Company.

Defore:

Adninistrative Law Jud~e Broderick

S TATEHE:n 0 P

CASE

Docket :io. P.Ei'TN 32-64-R is a contest of Order of Hithdraual no. 111,:::;777
issued January 12, 1982, un<ler section 104(d)(l) of the Act. The order refers
back to Citation I~o. 11Lf3669 issued December 13, 1931. Docket '1o. '?E~E~ 32-134
is a civil penalty proceeding seeking a penalty for the violation
in
Order No. 1143777.

2153

Docket No. PENN 82-66-R is a contest of Order No. 1142931 issued
January 13, 1982, under section 104(d)(l) of the Act. This order refers back
to Citation no. 1143669 issued Jecember 18, 1931. Docket No. PENN 32-109 is
a civil penalty proceeding seekin~ a penalty for the violation alleged in
Order No. 1142981.
Citation No. 1143669 was issued under section 104 (d)
· the Act. I t was
contested before
Gary Helick who found that the viola::ion
occurred, but that it was not "significant and substantial." Consolidation
Coal Co. v. Secretary of Labor, 4 TIIBHRC 1533 (1932). This decision in ef
t
converted the 104(d)(l) citation to a 104(a) citation.
Consolidation Coal Co. moved for summary decision vacat
the two orders
contested herein on the ground that there is no longer a valid
lQL; (d) (1) citation to support them. The Secretary moved to Ti1odi ' Order
No. 1143777 issued January 12, 1932, to a 104(J)(l) citation whic. would then
serve as the underlying 104(d)(l) citation for Order No. 1142981. I reserved
decision on the motions.
Since the cases involve a common issue of law and all arose in the same
mine at about the same time, they are hereby CONSOLIDATED for the purpose of
decision.
Pursuant to notice, the cases were heard on the merits in Pittsbur3h,
Pennsylvania, on October 13, 14 and 15, 1982. Dennis J. Swentosky·and
Richard J. Silka, Federal coal mine inspectors and Daniel Fitzroy testified ~or
the Secretary of Labor. Larry Cuddy, Randy ;Jebolt, Melvin Burkes and John Xoraa
testified for Consolidation Coal Company.
The
waived the right to 2ile written proposed findings of fact and
conclusions of law. Based on the entL:e record, and consider
the contentions
of the parties, I make the following decision.
FIHDINGS OF FACT

TO ALL DOCKETS

1. At all times pertinent to these proceedings, Consolidation Coal Co.
(Consol) was the owner and operator of the Renton Nine in Allegheny County,
Pennsylvania. Consol is a large operator, and the i~position of a penalty will
not afzect its ability to continue in business.
2. In the 20-month period prior to the date of the orders contested
herein, the operator had a history of 595 assessed violations.
3. The operator demonstrated good faith in abating the conditions alleged
in the contested orders.

FrnDI~;cs

OF FACT - DOCKI:T NOS. PENN 82-64-R AND PENN 82-184

1. On January 12, 1932, Richard Silka, a Federal coal mine inspector and
a
authorized representative of the Secretary of Labor, issued an order of
withdrawal to Consol under section 104(d)(l) of the Act, char
a violation
of 30 C.F.R. § 75.400.
2. On January 12, 1932, there were accumulations of fine
coal,
fine coal and lump coal along the tracks and between the tracks
the
load
ramp of the 14 and 15 South sections of the subject mine. The accumulations extended for a distance of approximately 75 to 100 feet
and
between the rails, and for an additional 100 feet along
side rail.
The accumulations for the first 75 - 100 feet were
4 feet in
width and from 6 to G inches deep.
The accumulations
side
rail were 1 to 2 feet wide and 6 to 8 inches deep.
There was a D.C. car haul
unit between the rails ext
for about 40 feet in the affected area.
This
was a steel structure which
most of the area between the rails and
extended from the floor almost as high as the rails. The accumulations
between the rails in this area therefore, uere not as
as
appeared,
and were not as deep as in other areas cited.
3. Mine cars were present on the track along the area cited. The cars
were approximately 7 feet wide, and extended out over the tracks about
13 inches on each side. The accumulations between the rails were therefore
under the cars. The cars were described as "possum
" an<;! the
bottom of the car came dow"TI almost to the level of the track. Therefore, it
was difficult to see under the cars.
4. The ground wire was not properly connected to the return feed wire
to the radio unit just outby the belt entry along the track approximately
2 to 3 feet from the accumulations of coal and coal dust.
5. The conduit switch to the pump was not properly entered into the
pump box and the frame was not connected to the feed wire.
This was approximat
2 to 3 feet from the accumulations of coal and coal dust cited herein.
6. There was a 250 Volt D.C. trolley wire
from the roof about
6 feet above the track on the t
side. The trolley motor does not
come within 600 to 1,000 feet from the accumulations cited herein.
7.
Inspector Silka arrived at the area in question about 1:50 p.m. on
January 1.2, 1982. The area had been inspected by company mine examiners at
5:20 a.o. and at 1:20 p.m. on the same day.
G.
In the 15 months prior to the issuance of the order challenged
herein, 26 violations of the stanJard in 30 C.F.R. § 75.400 were issued to the
ect mine, nine of them involving ramp areas.

2155

STATUTORY PROVISIOH
Section 104 (d) (1) of the Act provides as follows:
(d)(l) If, upon any inspection of a coal or other mine,
an authorized representative of the Secretary finds that
there has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause i!!lninent danger, such
violation is of such nature as could significant
and
substantially contribute to the cause and effect of a coal or
other mine saf
or health hazard, and if he finds such violation to be caused by an unwarrantable f:iilure of such operator to conply with such mandatory health or safety standards,
he shall include such f
in any citation given to the
operator under this Act. If, during the same inspection or
any subsequent inspection of such mine within 90 days after
the issuance of such citation, an authorized representative of
the Secretary finds another violation of any mandatory health
or
standard and finds such violation to be also caused
by an unwarrantable fnilure of such operator to so co;'1ply, he
shall forthwith issue an order requiring the operator to cause
all persons in the area affected by such violation, except
those persons referred to in subsection (c) to be withdrawn
from, and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that
such violation has been abated.
REGULATORY PROVISION
30 C.F.R. § 75.400 provides as follows: "Coal dust, including float coal
dust deposited on rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be pernitted to accumulate in active
workings, or on electric equipment therein."
ISSUES - DOCKET NOS. PENN 82-64-R Aim PENU 82-184

1. After an order issued under section 104(d) has been contested before
the Commission, may lISIIA or an administrative law judge modify it to a
104(d)(l)- citation?
2.

\Jas a violation of the standard in 30 C.F.R. § 75.400 established?

3. If a violation occurred, was it of such a nature as could significantly ancl substantially contribute to the cause and effect of a coal nine
safety or health hazard?

2156

4.
If a violation occurred, was it caused by an unwarrantable failur
of the operator to comply with the standard in question?

5.

If a violation occurred, what is the appropriate penalty?

rons OF LAH 1.
Consol was subject to the provisions of the FeJeral 'line Saf etv and
Health Act in the operation of the Renton ~line at all times pertinent hereto,
and the undersigr..ed Administrative Law Judge has jurisdiction over the narties
and subject matter of this
ing.

2. The Secretary's motion to mod
herein to a 104 )(1) citation is her

the

~04(

)(1) order contested

GR..\NTED.

DISCUSSIOH
Subsequent to the hearing in these cases, the Commission
the
~Ielick ·in modifying an invalid 104 (d) (1) withdrawal
order to
(1) citation.
of Labor v. Consolidation Coal
Companv, 4 Fl:lSHRC 1791 (1982).
c::ise was s
to the present
ir:.
that the 104(d) (1) citation unde
the contested order had ~een modified
by the Judee to a 104(a) citation in a prior proceeding, and Consol moved for
summary decision on the ground that the order lacked the required underlying
104(d)(l) citation. Prior to the hearing, the
modified the contested
order conditioned on evidence showing a significant and subs
tia~
ion
and an unwarrantable failure to comply.
In the present case the necessary
findings ("S&S") were contained
in the order when it was issued.
Consol argues that it contested a withdrawal
order which required imaediate abatement and that it is not fair to permit the
modification sought here, since it must in effect contest a citation with
immediate withdrawal, an entity not recogni3ed in the Act. There was no sho1Jing, however, of prejudice or surprise, no showing that its defense to a
(c)(l) citation would differ from its defense to a (c)(l) order.
See 4 F:1SHRC
at 1795. The modification here was accomplished on motion of the Secretary,
although the Secretary also issued and submitted in evidence a copy of the
modification fnr;n it issued to Consol. The Co:anission held that the pro;;er
procedure for modification after a notice of contest has been filed is
!!lotion. Id. On the authority of the Commission decision, I am p;rant
the
motion to modify the contested order to a 104(d)(l) citation.
3. On January 12, 1932, a violation of JO C.F.R. § 75.400 was established
in that loose coal and coal dust Has permitted to accumulate in active workings
along and between the tracks outby the loading ramp of the 14 and 15 South
sections of the subject mine. The operator did not
any evidence to
contest the fact of violation.
4. The violation referred to above was of such nature as could signif icantly and substantially contribute to the cause and effect of a mine safety
or health hazard.

215'{

DISCUSS IO'.\/

The test for a "significant and substantial" violation, laid down
the
Co::unission in
Sational
3 PMSllRC
result
822. is the
in injury or illness of a reasonab
serious nature.
The hazard contributed to by accumulations of loose coal and coal dust
is a mine fire or explosion. Uhether it is reasonably
to occur
upon (1) the nature and extent of the accumulations; and (2) the existence of
sources of i8nition.
If a fire or
sion occurred it is
likely to
cause
uries or illnesses of a reasonably serious nature.
The accumulation cited here 1vas substantial -- it extended a cistance
of almost 200 feet, was 2 to 4 feet wide and 6 to 3 inches
The top
2 inches was fine powdered dust or float dust. Approximately 25 percent of
the total accunulation consisted of coal dust; the remainder was loose coal,
The testir:10ny is conflict
as to i.;rhether there was an
ition source in
the area of the accumulations.
I find that the trolley wire was no
a
potential source of ignition, since the motor did not come closer than
700 feet fro;n the accur.mlations.
Ilm:ever, I regard the improperly connected
ground wire to the radio, and the ground wire not connected to the pump as
potential sources of iGnition especially in the presence of float coal dust.
The float coal dust in itself has the capacity to propagate a mine fire or an
explosion. Bec~use of these factors, I find the violation was
icant
and substantial.

5. The violation resulted froTI! the unwarrantable failure of the
operator to comply with the standard.
DISCUSSION
The extent of the accumulation was such that it had to have been there
for at least half a shift or 4 hours prior to the inspector's arrival.
The
operator had been cited on many prior occasions for violations of the standard
in question.
Because of this, special care should have been taken to avoid
repetition.
The mine examiners who exa:nined the area prior to the
tion
testified that they did not observe the accumulations, and I accept their
testimony as truthful.
In fact, when walking along the wide side of the
tracks, the accumulation, which was between the tracks and on tne
side,
was difficult to see. It clearly could have been seen if the examiner \vas
instructed to look between the cars or get down and look under the cars.
I
find that the conditio~ was such that the operator could have and should have
known of its existence.

6. The violation was serious, and was caused by the operator's negligence. The operator is a large operator and has a substantial history of
prior violations.
I conclude that an appropriate penalty for the violation
is
50.

2158

Fli'WINGS OF FACT -

Fmrn 82-66-R AND PE~m 82-109

1. On January 13,· 1932, Dennis Swentosky, a Federal coal mine inspector,
and a duly authorized representative of the Secretary of Labor, issued an
order of withdrawal under section 104(<l)(l) of the Act to Consol charging a
violation of 30 C.F.R. § 75.1002-l(a).
2. On January 13, 1982, two non-perraissible breaker boxes for shuttle
cars were located 113 feet and 120 feet respectively from the outby corner of
the pillar block being mined. The boxes were approxiflately 160 feet and
175 feet from the two places in the pillar which were being mined or the
active cuttin3s.
3.
In the coal mining industry, the term pillar workings refers to the
gob area and the pillar or pillars being mined.
4.
In retreat mining, when a pillar is mined out and the roof collapses,
the air including possible methane from the gob area is forced outby.
5. Mining had been done on the shift prior to that during which the
order was issued.
This mining involved the pillar in question and the breaker
boxes were in the same location. One split had been mined through the pillar
and a cut had been taken from a second split.
The ~ining was beins done with
a continuous miner equipped with a methane monitor.
6. No methane was detected by the inspector at the pillar split at the
time the order was issued,
7.
The subject mine does liberate methane and is considered a gassy
mine. Methane is more likely to be encountered in retreat mining than it is
in development mining.
3. The nonpermissible breaker boxes are used to turn power on and off
the shuttle cars and an arc can occur when this is done.
An arc can also
occur in the event of a short in the box.
9.
The air readings taken in the section in question showed good
ventilation. The bleeders were f ~nctioning properly and breaker posts were
set to limit the area of the roof fall.
Ri:~GTJLATORY

PROVISION

30 C.F.R. § 75.1002-l(a) provides as follows:
(a) Electric equipment other than trolley wires, trolley
feeder wires, high-voltage cables, and transformers shall be
permissible, and maintained in a permissible condition when

2159

such electric equip~ent is located within 150 feet from pillar
workings, except as provided in paragraphs (b) and (c) of this
section.
[Paragraph (b) provides an exception for certain
nonpermissible equipment prior to l'Iarch JO, 19 74; paragraph
(c) excepts equipment for which a permit for non-compliance
has been issued.]

ISSUES
L
Here the nonpermissible breaker boxes involved herein within
150 feet of "pillar workings" on Januarv 13, 1982?
(a)
Should the measurement to the nonpermissible equ
ment be taken from the outby corner of the pillar be
mined
or from the actual place of the cut?

2. If a violation was established, was it of such nature as could
significantly and substantially contribute to the cause and effect of
mine
safety or health hazard?

3. If a violation occurred, was it caused by an unwarrantable failure
of the operator to comply with the standard in question?
4.

If a violation occurred, what is the appropriate penalty?

co:;cLUSIONS OF LAP -

DOCKET NOS. PENN

1. Consol was subject to the orovisions of the Federal Hine Saf
and
Health Act in the operation of the Renton :ifine at all times
inent :1ereto,
and the undersigned Administrative Law Judge has jurisdiction over the parties
and subject matter of this proceeding.

2. There is a valid underlyin~ 104(d)(l) citation for the contested
order, namely the one referred to in Docket ~o. PENN 82-64-R.

3. On January 13, 1982, a violation of 30 C.F.R. § 75.1002-l(a) was
established in that two non-permissible breaker boxes for shuttle cars were
located within 150 feet of pillar workinzs in the subject mine.
DISCUSSIOif
The tenn "pillar workings" is not defined in the regulations.
The :,!SHA
underground inspector's manual directs that the 150 foot distance be neasuretl
from the non-permissible equipment in question to the nearer of (a) the
outby edge of the pillar being mined, or (b) the inby
of the solid
pillars immediately outby the previous
pillared area.
~he
tor testified that this has long been NSHA's policy and that the policy is well known
in the industry. He further cestified that the term pillar workinzs is a

2160

broad term and includes the gob area and the entire block or blocks being
mined.
Consol's Safety Department had been
a copy of the MSHA
Inspector's Manual.
Citations have been issued to Consol previous
Eor violations of the standard in question.
The State of Pennsylvania standard
requires measurement from the electrical equipnent to the actual workins face.
Consol's r;eneral mine foreman was aware of the 'fSHA policy and knew that the
breaker boxes were within 150 feet of the outby corner of the pillar being
mined. He disagreed with the definition of pillar workings, however, and
stated that he would consider it as referring to the actual working face.
It would clearly be preferable to have the term pillar workings defined
in the regulations.
The definition assumed
t!SHA, however, see;::is to me to
be a reasonable one, and much more satisfactory and practical than any otl1er
definition suggested.
If the distance is measured from the working face to
the electrical equ
, it would change as the block was be
mined and
might require shutting off the power and moving the equipment before the
pillar was completely mined.
I accept the testimony of the inspector that
the term pillar workings means the gob and the entire pillar or
being
r:iined, and that this definition is known and followed in the r:iining industry~

4. The violation referred to in Conclusion of Law No. 3 was of such
nature as could significantly and substantially contribute to the cause and
effect of a mine safety or health hazard.
DISCUSS IOU
The hazard which the standard is designed to prevent is an iEnition or
explosion which could result from methane beins forced back over electrical
equipment which r:iay arc.
Although methane was not detected at the time of
the citation, the mine is a gassy mine, and methane is likely to be encountered
in retreat nininG.
If methane was forced back over non-permissible electrical
equipment, and an ig1:ition or explosion occurred, serious injuries to miners
would be likely. My conclusion is based in lar~e part on the inspector's
testimony, but I have considered the testimony of Larry Cuddy to the effect
that the bleeder syste1'1 would prevent J:"lethane buildup in the gob and the
breaker posts woulJ prevent a running fall.
The hazards of nethane in underground ;nining are too well kno\m to require documentation, as is the unpredict~bility and suddenness of its appearance.

5. :he violation referred to in Conclusion of Law no. 3 resulted fron
the unwarrantable failure of the operator to comply with the standard.
DISCUSSIO'.i
Randy Debolt, General Mine foreraan of the Renton ~line, recognized before
the order was written that there was a violation of the standard.
Larry
Cuddy, section foreman, stated that he made a mistake by neasuring from the
working face to the shuttle car b0xes.
lie testified that he did so because

2 16 1
--

..L

the State of Pennsylvania requires raeasurement from that point. I accept
Hr. Cuddy's testimony as truthful, but I conclude that he should have known
that the condition constituted a violation .of the Federal standard. On that
basis, I conclude the violation was unwarrantable.
6. The violation was serious, and was caused by the operator's
eence. The operator is a large operator and has a substantial history of
prior violations. I conclude that an appropriate penal
for the violation
is $750.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, IT IS
ORDERED:
1. Order of Rithdrawal No. 1143777 issued January 12, 1932, modified
herein to a 104(d)(l) citation, charging a significant and substantial violation and an unwarrantable failure to comply is AFFIRHED as modified.
2. Order of \·:ithdrawal No. 1142981 issued under section 104
January 13, 1982, is AFFIRMED.

) (1) on

3. Consolidation Coal Company shall within 30 days of the date of this
decision pay the sum of $1,500 for the two violations found herein to have
occurred.

/1a

~

Distribution:

(,klj;

.413vock1.~ci/

James A. Broderick ·
Administrative Law Judge

By certified ~ail

Robert M. Vukas, Esq., Consolidation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241
David T. Bush, Esq.; Office of the Solicitor, U.S. Department of Labor,
Room 144d0 Gateway Building, 3535 }~rket Street, Philadelphia, PA 19104

2162

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

22041

(703) 756-6210111/12

Contest of Citation

ALLIED CHEMICAL CORPORATION,
Contestant

Docket No. WEST 82-97-RH
Citation No, 578873;
5/82

v.

Alchem Trona Mine

SECRETARY OF LABOR,
MINE SAFETY A.i'ID HR.bJ:.. TH
ADMINISTRATION (HSHA),
Respondent

DECISION AND ORDER
<

-

This matter is before me under a reservation of jurisdiction
to the proper interpretation of a mandatory safety standard
relating to metal and nonmetal underground mines. The standard in
question provides:
Unguarded conveyors with walkways shall be
equipped with emergency stop devices or cords
along their full length. 30 C.F.R. 57.9-7.
The operator paid a penalty of $300 for failure to provide an
operative step cord
the west side of its 2,000 foot conveyor
but contests ar..y interpretation of the standard that would require
such a cord
the east side of the conveyor.
The stipulated facts show there are walkways down both the east
and west side of the beltline and that while the west side is the side
designated as the walkway miners are regularly assigned to clean muck
from positions on the east walkway. This occurs at least two shifts a
month. Further, miners assigned to clean
on the east side of
the belt are required to travel a dist·ance of 40 feet to and from the
crosscut through which they
access to the east walkway.
The operator's reliance on Secretarv of Labor v. Magma Copper Company,
1 FMSHRC 83i', 857 (1979) is obviously misplaced. There the trial judge
held that the Secretary failed to prove that the walk or travelway in
question was "regularly used and designated for persons ~o go from one
place to another". 30 C.F.R. 57.2 (Definitions). While I accept the

2163

operator's contention that 57.2 applies to walkways, I find the
east walkway was a designated workplace for miners and that as such it
constituted a designated walk or travelway within the meaning of 57.~
and 5 7. 9- 7.
The intent of the standard, as the operator admits, is to protect
miners who on a regular and frequent basis, use a designated walkway
for movement to and from their regular duty stations.
Since the
facts show the east side of the
is a
station
frequented by miners at least two shifts a month, it is clear that the
hazard presented by the moving beltline is one
t which the standard
was directed.
The fact that a miner is stationed on the west side of the beltline
for the sole purpose of pulling the stop cord in the event of an emergency
on the east side is no defense to the failure to provide a stop cord
on the east walkway.
First I find it highly unlikely that the operator
can always be depended upon to send three men to do the work of two,
especially in the face of economic layoffs and reduced workforces that
prevail in most mines.
Second I find no
in the standard that
s
the arrangement posited by the operator without action by the Secretary
on an appropriate petition for modification.
Third, as the Secretary
points out, the stop cord is intended as an individual safety device that
should not depend for its activation on some form of communication between
individuals who may be widely separated and where time and awareness
of the danger may be of the essence in preventing a serious injury.
The premises considered, therefore, it is ORDERED that the operator's
contest of the citation in question be, and hereby is, DENIED and the
validity of the citation AFFIRMED.

oseph B. Kenn
Administrative Law
Distribution:
John A. Snow, Esq., Van Cott, Bagley, Cornwall & McCarthy, Suite 1600,
50 South Main Street, Salt Lake City, UT 84114 (Certified Mail)
Edward H. Fitch, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)

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

(703) 756-6210/J 1/12

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

v.

Civil

Proceeding

Docket No. WEST 81-272-M
A.O. No. 35-02875-05005
Applegate

Bar

M & H ROCK, INC., d/b/a
APPLEGATE AGGREGATES, INC.,
a corporation,
Respondent
DECISION
Appearances:

Faye Von Wrangel, Attorney, U.S. Department of Labor,
Seattle, Washington, for the petitioner; Ernest W. Mignot,
Grants Pass, Oregon,
se, for the respondent.

Before:

Judge Koutras

This is a civil penalty proceeding initiated by the petitioner
against the respondent pursuant to section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820(a), seeking a civil
penalty assessment for two alleged violations of certain mandatory safety
standards. Respondent filed a timely answer and notice of contest and
a hearing was convened in Medford, Oregon, on October 28, 1982 and the
parties appeared and participated fully therein. The parties waived
the filing of posthearing proposed findings and conclusions. However,
I have considered the arguments advanced by the parties in support of
their respective cases during the course of the hearing in this matter.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 u.s.c. § 801 ~ ~·
2.

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

3.

Commission Rules, 20 C.F.R •. § 2700.1 et

2165

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 penalties
filed in this proceeding, and, if so, (2) the appropriate civil penalties
that should be assessed against the respondent for the alleged violations
based upon the criteria set forth in section llO(i) of the Act. Additional
issues raised by the parties are identified and disposed of in the course
of this decision.
In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:
(1) the operator's history of previous violations, (2) the appropriateness
of such penalty to the size of the business of the operator, (3) whether
the operator was negligent, (4) the effect on the operatorvs ability to
continue in business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the operator in attempting to achieve
compliance after notification of the violation.

The citations issued in this case were served on the respondent by
MSHA Inspector George A. Gipson pursuant to Section 104(a) of the Act
during the course of an inspection of the mine site on March 18, 1981, and
they are as follows:
Citation No. 345579, 30 CFR 56.14-1:
The ralls crushing V-Belt drive unit was not
completely guarded. The exposed pinch point
was within easy contact being located four
feet above ground level and near the walkway
leading to the ladder to the feed crusher
operations platform.
Citation No. 345580, 30 CFR 56.11-2:
The elevated walkway around the wet plant was
not provided with adequate handrails. Handrails
had been installed but was not maintained in
good condition. The corner post was broken
off at the base causing the cable railing to
be one foot above the floor level. The walkway
floor was 8 1/2 feet above ground level.
Petitioner's testimony and evidence
MSHA Inspector George A. Gipson, testified as to his background and
experience and confirmed that he inspected the respondent's sand and
gravel plant on March 18, 1981, and plant foreman Bruce Ogden and owner

2166

Bill Mignot were with him at that time. Inspector Gipson described the
crushing plant
, and he observed three people at the plant on
the day of his inspection. One was working in the pit area with a loader,
another was operating a loader in the crusher area, and a foreman was in
the area. Mr. Ogden
him on the walk-around inspection of
the entire plant, and Mr. Gipson confirmed that he inspected the ralls
crusher, and he described its operation. He identified a photographs
of the crusher and described the area which he believed was not guarded
(Tr. 9-14, exhibit C-1).
Mr. Gipson described an area on the crusher labeled as "side guard"
on exhibit C-1 as a metal s
cloth which was on the crusher when
he observed it. The area which was not guarded, including the alleged
"pinch point" is labeled on the exhibit and he identified it as the area
which was not
Mr.
believed that an employee could come
point area between the belt and the pulley.
He identified a corner of a ladder in the lower right-hand corner of
exhibit C-1, and he believed that an employee walking up to that ladder
next to the
of
shown on the exhibit could somehow come in
contact with
point. Mr. Gipson indicated that an
employee
was stationed on a platform at the top of the ladder
ob
the crusher
, but that he would also clean-up under
the pulley. On the
inspection he observed an employee cleaning
up (Tr. 19).
Mr. Gipson testified that he measured the distance from the pinch
point to the ground, and that it was four feet or waist high to a person
walking by (Tr. 20). The hazard associated with the unguarded piRch
point was someone
their finger or hand in the moving unit, and
at the time he observed the condition it was in operation and moving
(Tr. 20). The
was immediately shut down, and a guard was
fabricated and installed (Tr. 17).
Hr. Gipson identified exhibit C~2 as a photograph of the handrail
around the elevated screener area which he cited in citation 345580.
He described the post which had been knocked down and stated that it
11
was dangl
low within about a foot of the actual walk platform
. 20).
Mr. Gipson stated that the walkway area was -elevated some
and one-half
feet from ground level, and a conveyor belt ran out from under the elevated
area (Tr. 22). Mr. Gipson testified that the condition of the handrail
was a hazard because it could not be used for grasping to
anyone
from fall
over the edge. It also posed a tripping hazard for anyone
attempting to walk around the posts and cable which had fallen over
(Tr. 23). The post was immediately put back in place and welded, and
the respondent did a good job in this regard (Tr. 23),.
Mr. Gipson confirmed that the primary reason
forth by the unguarded area would be to go up
and down the ladder, and he believed that an employee would be
arm's reach of this pulley to get to the ladder" (Tr. 25). However, he

216t

conceded that he did not measure the distance from the edge of the ladder
to the exposed pinch point, and he also conceded that there would be no
hazard while climbing the ladder. However, he believed there would be
a hazard "as you walk by here or trip or whatever and extended a hand
into that pinch point 11 (Tr. 26). The area around the bottom of the ladder
was all open area, and he believed that the piece of plywood shown in
the exhibit C-1 was there to provide protection for a conveyor belt
running under the pulley area in question. Mr. Gipson also indicated
that someone walking to the ladder could trip or extend a hand out and
come into contract with the pinch point (Tr. 27).
With
to the handrail citation, Mr. Gipson stated that he
measured the distance from the top of the cable where it "dips 11 in the
exhibit C-2, to the
form floor and that the distance was approximately
12 inches (Tr. 30). ~he cable is a metal type used for hoisting, and it
is very substantial once it is in place. The work platform around the
screening is norrrailY used for maintenance work and no one is there when
the crusher machine is operating. Although the inspector did not measure
the width of the walkway, Mr. Mignot indicated that it was eight feet
wide and seven feet long, and this was the "service arean from which any
maintenance would be perfonned, and normally, one or two men would be
on the platform at any
time (Tr. 34). Mr.
son confirmed that
his concern was that someone could fall over the
of the
form,
and he conceded that the "elevated walkway" was not an area where miners
no
would pass go
and coming from their work stations, and that
the only time anyone would go there would be to perform some specific
maintenance work (Tr. 36).
Respondent's testimony and evidence
Ernest W. Mignot, owner and operator of the mine in question, testified
as to his operation during the time the citations were issued. Pe indicated
that his approximate annual production was 100,000 tons of crushec rock.
He also testified that some of his trucks and equipment were manufactured
out of state, that he sells his product to a number of customers, including
the State of Oregon for use in road construction, and to the Federal
Bureau of Land Management and the Department of Agriculture. Other customers
include local road and paving contractors (Tr. 37-41).
Mr. Mignot argeed that the photographs taken by the inspector, exhibits
C-1 and C-4 were in fact photographs of the conditions cited by the inspector
in the two citations in question.
With regard to the guarding citation concerning the crusher V-belt
drive (345579), Mr. Mignot testified that the distance from the ladder
as shown in exhibit C-1 to the pinch point in question was approximately
6 1/2 feet. He indicated that the distance from the ladder to the
of the steel frame in front of the belt drive was four feet, and from
that point the distance to the pinch point was 2 1/2 feet.
Mr. Mignot testified that the normal route for one to take when
approach
the ladder to get to the platform above, or to climb off the
ladder when descending from the platform, was directly in front of the
ladder. He identified the piece of plywood which appears in the
photographic exhibit C-1 as a guard for a chute which runs under the

2163

belt in question. He also indicated that no one would have any reason
to be in the corner area adjacent to the belt area and at the
of the
platform, and he believed that the only way one could get their hand caught
in the pinch point was to deliberately reach in. He also indicated that
any maintenance work which would have been performed in that area
would only be done after the crusher plant was shut down.
With regard to the handrail citation (345580), Mr. Mignot stated
that the distance between each of the cables as shown in the
tographic
exhibit C-2 was 18 inches, and that the distance between the platform
floor and the first cable was 18 inches. He conceded that these distances
were when the entire handrail and supports were upright, and he further
conceded that the handrail was in the condition shown in the photograph
at the time the citation was issued (Tr. 41-44).
Mr. Xignot testified that the handrail cables and support posts
were of steel construction and he confirmed that the support post shown
to the right in the photograph was dislodged when a loader struck it
when it was raising a screen from the ground-level to the platform. He
also conceded that men were required to be on the platform area from
time to time while performing maintenance work, but he did not believe
would be exposed to any danger of
over the edge or the
form because the total work area of the platform is eight feet
seven feet, and any maintenance work would be performed closer to the
crusher rather than the edge of the platform. He indicated further that
the crusher would be shut down for maintenance, and he believed that the
handrails as shown in the photograph would protect anyone from falling
or tripping over and that one would have to be drunk to fall over
cable (Tr. 44-46).
Findings and Conclusions
Jurisdiction
In its answer to the proposal for assessment of civil penalties
filed
the petitioner, the respondent admitted that it has been
ting
a mine, a worksite and place of employment for miners". However, it denied
the assertion made by the petitioner that its mining operation is subject
to the Act. Based on all of the evidence and testimony now of record in
these proceedings, it seems clear to me that the respondent's sand and
operation is a "mine" within the meaning of the Act, and that the
respondent is in fact subject to the Act as well as to MSHA's enforcement
jurisdiction. The mine has been regularly inspected by MSHA's inspector
force, and the nature of the mining activities as stated in the record
of testimony during the hearing clearly establishes jurisdiction, and any
aguments to the contrary by the respondent are rejected.
Fact of Violation - Citation No. 345579
This citation charges the respondent with a violation of mandatory
safety standard 30 CFR 56.14-1, for failure to
tely guard an exposed

2169

pinch point which the inspector alleged was "within easy contact".
The standard provides as follows:
56.14-1 Mandatory. Gears; sprockets; chains;
drive, head, tail, and takeup pulleys; flywheels;
couplings; shafts; sawblades; fan inlets; and
similar exposed moving machine parts which may
be contacted by persons, and which may cause
injury to persons, shall be guarded.
In this case, the facts show that the inspector measured the distance
from the pinch point to the ground, which he founci to be four feet or
"waist high".
Coupled with his belief that a waist hi
pinch point
"near the walkway
to the ladder!! constituted a hazardous area
which was required to be guarded, the inspector issued the citation.
However, the respondent has established through credible test
that
the distance from the edge of the ladder to a steel frame
the pulley in question was four feet, and from that area to the pinch
point there was another two and one-half feet.
In short, the respondent
has established that if someone were to fall from the ladder and reach
out, he would be some six and one-half feet from the pinch point. Given
these circumstances, it is highly unlike
that anyone would get
t
in the pinch point as a result of tripping or
while going
r
down the ladder in question to reach a platform above the machine in
question.
The photographic exhibit C-1, reflects that the front of the pinch
point area which concerned the inspector was guarded with a wire mesh
screen. A piece of plywood, which the inspector found
be an ·adequate
guard, protected anyone from falling into a conveyor belt which ran under
the machine in question, and the steel framing of the machine running
alongside the pinch point provided a measure of protection and was some
two and one-half feet from the pinch point itself. The inspector indicated
that his primary concern was that someone going or coming from the ladder
could reach into the pinch point if he were to trip or stumble.
I find
this highly unlikely since a person would have to fall six and one-half
feet horizontally to get his hand into the pinch point. As for anyone
getting caught while cleaning up, I find this to be highly unlikely
also.
Based on the position of the pinch point, I believe that one would
have to make a conscious effort to stick his hand into the. pulley area
which apparently troubled the inspector.
Mr. Mignot testified that no one has any business or reason to be
near the pulley in question and that when maintenance is performed the
whole plant is shut down (Tr. 43). Mr. Mignot also established to my
satisfaction that anyone approaching the ladder for the purpose of climb
up to the platform would approach it from the front, and he would have
no reason to walk back to the corner of the machine where the pulley was
located inside the steel framing of the machine, and then walk back and
over to the ladder. Given all of the prevailing circumstances, I conclude
and find that the exposed pulley area which was cited in this case was
not required to be guarded, and the citation IS VACATED.

Citation No. 345580
with a violation of mandatory
This citation
the res
safety standard 30 CFR 56.11-2, for failure to provide an adequate
handrail around an elevated
The standard provides as follows:
Crossovers, elevated
, elevated ramps, and
stairways shall be of substantial construction
provided with handrails, and maintained in good
condition. Where necessary, toeboards shall be
provided.
It seems clear to me in this case that the cited handrail was no
of substantial construction or maintained in good condition at the time
the inspector observed the condition. Mr. Mignot candidly admitted that
the handrail had apparent
been dis
when struck
a loader,
and he did not dispute the fact that it
condition
in the
photograph, exhibit C-2. Most of his test
in defense of the citation
goes to the question of
ty and the likelihood of someone fal
over the edge of the
tform.
far as the fact of violation is
concerned, I conclude
find
the petitioner has established
violation of section 56.11-2,
ion IS AFFIRHED.
Good Faith Compliance
The record establishes that the respondent promptly abated the
condition cited by immediately shutt
down and repairing the defective
handrail and posts· in
ion. Although the inspector fixed the
ement
time as the next morning, March 19, 1981, respondent voluntarily shut
do·wn at some cost and
tion to production to weld and secure the
support posts and cable back into an up
position.
I find that
respondent exhibited rapid
and this fact has been considered
by me in the assessment of a
ty for the violation which has
been affirmed.
History of Prior Violations
Respondent's history of
violations is reflected in petitioner's
computer print-out, exhibit C-3. This print-out reflects three
citations for the 24 month
prec
the ussuance of the citations
in question.
I find this to be a
record and have taken this
into consideration in the assessment of the civil penalty.

Mr. Mignot candidly admitted that the handrail post shown in exhibit
C-2 was dislodged by a loader.
Therefore, he knew of the condition
cited, and his failure to exercise reasonable care to see to it that it was
promptly repaired constitutes
negligence.

2 J_1 - (..i.."

Gravity
The elevated platform in question was some 8 1/2 feet off the
ground. Although the dislodged post and cable handrail may have provided
some protection to restrain someone from falling over the platform, the
inspector stated that his measurement from the top of the cable at its
lowest point as shown in exhibit C-2 was twelve inches. Mr. Mignot was
not there at the time, and he could not rebut this fact. The inspector
believed that someone could possibly trip or stumble and fall over this
cable in the position which he found it. I accept this testimony, and
find that the condition cited was serious.
Size of Business and Effect of Civil Penalty on the Respondent 1 s Ability
to Remain in Business.
I conclude and find that the respondent is a small-to-meduim
size sand and gravel operator. Mr. Mignot stated that his business has
fallen off since 1981 and that his production has been cut by 50% due
to general economic industry conditions. Although he indicated that the
payment of a civil penalty "will hurt", I cannot conclude that it will
put him out of business or have an adverse impact on his ability to continue
in business. However, I have taken his testiomny into account in the
penalty assessment made by me in this case.

On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
and find that a civil penalty assessment in the amount of $25 is appropriate
and reasonable for the citation which has been affirmed.
Order
R~spondent IS ORDERED to pay a civil penalty in the amount of $25
within thirty (30) days of the date of this decision for Citation No. 345580,
March 18, 1981, 30 CFR 56.14-1, and upon receipt of payment by MSHA,
this matter is dismissed.

k.ti-:~
Administrative Law Judge

Distribution:
E.W. Mignot, President, M & H Rock, Inc., 2660 Vine Street, Grants Pass,
OR 97526 (Certified Mail)
Faye Von Wrangel, Esq., U.S. Department of Labor, Office of the Solicitor,
8003 F.O.B., Seattle, WA 98174 (Certified Mail)

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

CAMBRIA COAL COMPANY,
Contestant-Respondent

22041

Contest of Citation
Docket No. PENN 81-145-R
Citation/Order No. 1043746; 4/J/81

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

Civil

Proceeding

Docket No. PENN 81-204
A.O. No. 36-02738-03008H
Cambria Coal Strips and Tipple
DECISIONS

Appearances:

Robert A. Cohen, Attorney, U.S. Department of Labor,
Arlington,
, for MSHA; Bruno A. Muscatello, Esquire,
Butler, Pennsylvania, for Cambria Coal Company.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern a citation and order issued
by an MSHA inspector pursuant to sections lO~(a) and 107(a) of the Federal
Mine Safety and Health Act of 1977, charging :ambria Coal Company with
alleged violations of mandatory safety standarr!s 30 CFR 77. 404 (a) and
77.405(b). The inspector also made a finding that the conditions or
practices cited on the face of the citation constituted an inuninent
danger and that the alleged violations were significant and substantial.
Docket No. PENN 81-145-R is the Contest filed by Cambria challenging
the legality of the imminent danger and significant and substantial
findings made by the inspector, and Docket PENN 81-204 is the civil
penalty proposals filed by MSHA seeking penalty assessments for the
alleged violations. The cases were consolidated for trial in Pittsburgh,
Pennsylvania, on June 29, 1982, and the parties appeared and participated
fully therein. Although given an opportunity to file post-hearings proposed
findings and conclusions, the parties declined to do so" However, I
have considered all of the arguments made by counsel on the record
during the trial in the course of these decisions.
Applicable St&tutory Provisions
1.
~seq.,

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
particularly sections 104 and 107.

2 .l.1 -l -6

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i), which requires
consideration of the following criteria before a civil penalty may be
assessed for a ~roven violation: (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.
3.

Commission Rules, 29 C.F.R. § 2700.1 et

The issues presented in these proceedings includes the following:
(1) whether the conditions or practices cited by the inspector on the
face of the citation constituted a violation of the cited mandatory safety
standards, (2) whether the violations were of such a nature as could
significantly and substantially contribute to the cause and effect of
a coal or other safety or health hazard, and if such violations were
caused by the unwarrantable failure of the operator to comply with the
mandatory health or safety standard, (3) the appropriate civil penalty
which should be assessed against the operator for the alleged violations
based upon the criteria set forth in section 110 of the Act. Additional
issues include the findings of "imminent danger" and "significant and
substantial" made by the inspector.
Stipulations
The parties stipulated to the following (Tr. 6-8):
1.

Cambria Coal Company and the mine in question are
subject to the Act.

2.

At the time the citation issued, the mine employed
approximately 180 miners, mined approximately 3,000
tons of coal a day, and the mine constitutes "a
fairly large strip mining operation."

3.

The citation in question was issued by a duly
authorized representative of the Secretary of Labor.

4.

The imposition of a reasonable civil penalty will
not adversely ~ffect the respondent's ability to
continue in business.

5.

The respondent's history of prior violations at the
mine in question was small, and during the preceding
24-months from the date of the issuance of the
citation in question the mine was assessed for five
violations, none of which involved the specific
mandatory safety standard cited in this case (Tr. 19).

217'1

The parties also stipulated as to the admissibility of their
respective exhibits, and on motion by MSHA's counsel, the witnesses
were sequestered.

The citation issued by the inspector in this case, No. 1043746,
April 9, 1981 (exhibit R-1), describes the condition or practice cited
as follows:
Terry Hamilton and Lewis Wagner, employees of this
company, were doing maintenance work on a Drilltech
drilling truck Ser. No. 1147303. This truck was suspended in air and not blocked in position (77.40S(b)).
This truck was being suspended by (3) hydraulic jacks
mounted on this truck. The front hydraulic ack hose
was partially removed to test this
jack.
This jack bled off when this hose was cracked indicating
that it was not maintained in safe condition (77.404(a)).

MSHA Inspector Leroy R. Neihenke, testified as to his mining
experience and background, which included work as an electrician and
mechanic, and he confirmed that he conducted an inspection at the
mine on April 9, 1981, and that he observed a Drill Tech truck suspended
in the air by hydraulic jacks near the train loadout building in the
vicinity of the preparation plant (Tr. 23-27; exhibits C-1 and C-2).
The truck was a model D40K heavy duty type consisting of three axles
and ten tires, and it was equipped with one hydraulic jack on the front
end and two jacks on the rear. The jacks are normally used to level
the truck during drilling operations, and the jacks are operated by
levers located inside the cab of the ve~icle (Tr. 30).
Mr. Neihenke stated that when he observed the vehicle suspended in
the air by means of the three hydraulic jacks no one was working on or
in it. The front end of the truck was suspended approximately 12 inches
off the ground, and the rear end was suspended approximately four inches
and six inches off the ground at each jack location. He determined these
distances by visual observation while standing approximately ten feet
from the vehicle: He observed no blocking materials under the truck,
and he indicated that solid wood crib blocks would normally be used to
block the truck to keep it suspended in the air and to
it absolutely
stationary to prevent any movement (Tr. 30-31).
The inspector testified that a service vehicle was parked next
to the drill truck in question and two employees were in it. The
employees confirmed that they had performed work under the suspended truck
previous to his arrival on the scene changing an oil filter and working
on the hydraulic lines, but told him that they did not intend to continue

2175

the work.
He estimated that the work already performed would have taken
a half an hour, and he also confirmed that the employees-were mechanics
and that he observed oil on the ground near the front jack as well as
under the truck:
The inspector stated that the mechanics told him that
they had been under the truck changing the oil filter, but that
did
not have to be under the truck to change the oil.
The inspector also
indicated that even though the mechanics told him they were under the truck
to change the filter, he did not believe
had to be under it since
the filter can be changed from ~he top of the truck
. 35~37).
The inspector stated that he issued the order because he believed
the mechanics had been under the truck while it was suspended in the air,
and that while
informed him they did not intend to go under it
he believed they would if he were
walk away". He asked
Hamilton,
one of the mechanics to check one o the
jacks to ascertain
whether it would collapse if the fit
were cracked.
Norma
, the
jack should remain extended after the fitting was cracked. When the fitt
was cracked during the test, he observed oil coming out of it and the
jack started to collapse. This indicated to him that the fitt
pilot
check valve was not functioning the way it was designed to (Tr. 40-42).
The tested jack
dropped for an approximate distance o two inches
over a five minute period, and if it were func
properly it would
not collapse at all (Tr. 43). He believed that the malfunctioning
pilot check valve could present a hazard to the men under the truck in
that in the event a hydraulic hose or a fitting were to burst the jack
could have collapsed, thereby caus
serious or fatal
uries to the
men under the vehicle (Tr. 44).
The inspector stated that company safety rules \;,lhichwere posted
in the scale house required that equipment not be worked on until it
was securely blocked, and in this case the safety rule was not followed
. 44). He confirmed that the order he issued was the first imminent
danger order he has issued in the five years he has been employed as an
MSHA inspector (Tr. 48). He also indicated that the hydraulic jacks
on the truck did not replace the requirement that the vehicle be blocked
and that the purpose of the jacks was to level the truck during drilling
(Tr. 52).
The inspector stated that after issuing the order, he returned
to the mine on April 13, 1981, and the truck was in the same position
as it was on April 9. The rear jacks were still suspended, but the front
jack had collapsed and the front tires were on the ground.
The jack was
tested again and when it collapsed l/8th of an inch he determined that
it was still inoperative and he did not terminate the order.
He returned
to the mine again on April 16, but was told the truck would be repaired
on April 21. He terminated the order on that
after test
the jack
again (Tr. 59).
The inspector confirmed that he cited two standards in his order;
one for failure to block the equipment, and the other for failing
to properly maintain the mobile equipment (Tr. 59). He considered the
condition he cited to be very serious, that an
ury could have

2 .l.1 { u
~.\

occurred immediately had the men crawled back under the truck, and he
believed the respondent was negligent in that it is responsible for
training its personnel as to the proper equipment blocking procedures.
He also did not believe the respondent acted in good faith in abating
the condition because of the time period which elapsed between April 9
until April 21, when repairs were actually made.
He also considered the
violation to be significant or substantial because it was reasonable to
believe that any injury would be fatal, and that this was a reasonable
likelihood (Tr. 59-62).

On
Inspector Niehenke confirmed that he is familiar
with jacks or similar equipment used on surface mining
trucks,
He confirmed that he was familiar with a pilot operated check valve of
the type used on the truck which he cited and indicated that it was a
load locking device.
He also indicated that the purpose of the jacks
on the drill truck in question is to
the truck level so that an
accurate vertical hole can be drilled, and
are also used to
the truck from overturning in the event the hole is not drilled correc
If properly maintained, he believed the jacks would keep the truck in
a stable position for a long period of time
. 68-72).
The inspector testified that when he first observed the truck, the
motor was not running and the two mechanics were sit
in their service
truck parked ten feet away taking their lunch break. He confirmed that
the truck has three leveling jacks, but others which are used to raise
and lower the boom. He did not know whether the jacks were ful
extended
when he observed it, nor did he know how high the truck could be raised
by fully extending the jacks (Tr. 74). He confirmed that the two mechanics
admitted that they .were working under the truck prior to his arrival on
the scene changing the oil filter and a hose. He assumed they were working
on a hydraulic oil hose because he observed a puddle of oil under the
truck, but he could not determine whether the oil in fact came from the
truck in question.
Since the oil was directly under the truck pod, he
assumed it came from the truck. He con;irmed that the men told him that
they did not intend to go back under the truck, and when asked why he
found it necessary to issue an imminent danger order, he replied as
follows (Tr. 78-79):

Q. If the men did not intend to go back
under the truck, what was the purpose of issuing
the imminent danger order?
A.
I had the rest of my inspection to complete.
I could not in fairness and good inspection
procedure walk away from this condition, knowing that
there was a real possibility that these men would
crawl back under this vehicle.

Q. Even after you told them not to, or did you
not tell them not to go back under?

2171

A.

At that time, no, I did not tell them.

Q. Isn't it true that the whole problem could
have been resolved just by having them lower the
truck to the ground?
A. It is not my
I am not to direct the
work force. That is the operator's responsibility.
Q.

Was there not a supervisor there?

A.

At that time, no.

Q. I believe you indicated that whenever you
first went to the area, that you had talked with a
supervisor when you got there?
A.

No, sir, that was in a different area.

Q,

How far away was it?

A.

A hundred

Q. You could not walk 100 yards or send somebody
over to get a supervisor to tell somebody to lower the
jacks?
A.

No.

Q. You are telling me that in your
this
was so dangerous that you would not tell a person to
lower the jacks because it created a significant
imminent immediate peril to the health, safety and welfare of these miners?
A.

We did not direct the work force.

Q. I believe also in your testimony, you indicated
that you assumed that they were
to crawl back
under there. On what did you base that assumption?
A. That fact that
had been under the equipment
to begin with. They stated
were under there. There
was no blocking. It was reasonable for me to assume if
I was to leave that area, it was reasonable for me to
assume that these men, because they had dnne it in the
past, they would do it again.
The inspector indicated that he had one of the mechanics "crack"
one of the front hydraulic jack fittings, but not the back ones. He
did so because he was only concerned with the front jack at that time,

'u

2 ·~ ~.::i
.L.

and his concern stemmed from the oil which he observed on the ground,
and he assumed that something was wrong with the jack because of the
presence of the. oil on the ground and the fact that the jack itself
was covered with oil (Tr. 81-82). His recollection was that it was the
left hydraulic hose fitting going into the top of the jack (Tr. 83).
He observed oil coming from the fitting under some pressure for about
four or five minutes. He did not mark the extension of the j ac.k prior
to having the fitting cracked, nor did he measure how high the jack was
positioned prior to the cracking of the fitting. However, he indicated
that the truck dropped approximately two inches in a period of five
minutes after the fitting was cracked, and that this drop was slow. He
determined the drop distance by observing the distance between the truck
tire and the ground as the truck was slowly dropping
. 85). The rear
jacks were not affected since they act independently from the front one.
He did not observe the truck for more than five minutes because
was reasonable to expect that if it fell this distance if five minutes,
that if a man was under the vehicle, he could be crushed in that distance"
(Tr. 86) •
The inspector indicated that his concern was the pinch point from
the axle to the carriage of the truck or from the ground to the truck axle.
If someone were to be caught at either point, serious or fatal injuries
could result. He indicated that the distance between the truck axle and
ground was "fairly high" and that a man should be able to crawl under
the truck without
it. He conceded that while he never observed
the distance between the truck axle and
, he nonetheless felt
that this was a possible pinch point where someone could get stuck in
but that he did not know for sure. He also believed that the are9 between
the axle, carriage or g~ound could be another pinch point and th~t {f someone
were to slide under the axle sideways "maybe the axle could come down
and crush him that way" (Tr. 88). He also stated that his concern was
over the slow gradual drop of the truck rather than a complete or sudden
drop (Tr. 89).
The inspector stated that he did not consider the use of the truck
jacks as adequate blocking of the vehicle, regardless of the safety features
on the truck, and that his opinion in this regard is based on his training
and experience. With regard to the citation concerning the failure to
maintain the truck in a safe operating condition, he stated that he cited
this standard because of his concern for the condition of the front jack,
and that he did not inspect the truck itself to determine actual internal
working conditions and only concentrated on the jack (Tr. 91). He
conceded that the pilot check valve spring operates under pressure generated
hydraulically by the truck motor and with the motor off there would be no
such pressure (Tr. 96).
The inspector denied that he ever stated to anyone that he would
not have issued the imminent danger had Mine Superintendent Morrison
come to the scene when he called for him, but he admitted that he was
upset because Mr. Morrison could not get there right away and he was

217J

upset because Mr. Morrison "had something more important to do than
to worry about his personnel" (Tr. 97). The inspector also indicated
that safety regulations prohibiting work on elevated vehicles unless
they were securely posted were in fact posted on the bulleting board
(Tr. 99).
The inspector did not believe that the respondent exercised good
faith in the abatement of the violations because of the amount of time
it took to take corrective action. He indicated that he had no way of
knowing that the truck was needed, and the failure to timely repair it
constituted a hazard as far as he was concerned (Tr. 100). He also
indicated that he was concerned over the fact that he had to go back to
the mine two or three times to abate the violation (Tr. 102),
In response to questions from the bench concerning his rationale in
issuing an imminent danger order, the inspector states as follows (Tr.
103-105):

Q. Am I to assume that had you observed this
truck out by the pit drilling area rather than in
a raised position stationary with two fellows by
it, that we probab
wouldn't have this case,
would we, if you were driving by this truck and
you saw it drilling out there, nothing would have
come to your attention, would it?
A. No. It would have been a normal situation
for me to see this vehicle suspended in the air
with these jacks while they were drilling. There
wouldn't have been anything abnormal to it unless
I would have happened to check this valve, which
I more than likely would have done.

Q. So what called this particular situation to
your attention was the fact that you saw it raised
and you saw some indication of oil and you thought
that some fellows had been working on it?
A. They stated that they had been working
on it, yes.

Q. Let me ask you this question. At the
time that you observed the vehicle, the time that
you talked to the two employees, and then you spoke
to one of the foremen there, you spoke to someone,
you talked to Mr. Morrison.on the phone. What if
someone in management, mine management, had made
the decision to lower the truck, in other words,
put it down full flush to the ground, would that
have abated the condition?

A. To me, it would have relieved the imminency
of the condition, but I would have still issued a
citation.

Q. Some kind of citation with a reasonable
time to take care of the hydraulic problem, is
that the idea?
A.

Yes.

Q.

Let 1 s assume that the one hydraulic jack
was not leaking and that it had tested and that
the condition was okay. You still would have come
to the conclusion that this being suspended on
the jack was still an imminent danger?
A.

Yes, I would.

Q. Even though all three jacks were in proper
working conditions?
A.

Yes.

Donald L. Liberatori, employed as a journeyman mechanic with the
Beckwith machinery company, Clearfield, Pennsylvania, testified that his
duties include the making of field repairs on caterpillar and Drill Tech
equipment, and he stated that his experience also includes work on the
Drill Tech Truck hydraulic jacking system over a period of five·or s1x
years. He also indicated that on several occasions he worked on various
hydraulic problems on the trucks similar to the one cited in this case,
and he checked the front jack on the very truck its~lf (Tr. 117-120).
Mr. Liberatori stated that the jack in question has a safety pilot
check valve and he explained how it operates. In order to make the jack
go up or down the engine must be running and hydraulic pressure between
1200 and 1500 pounds must be present to overcome the check valves. When
the engine is not running, there is only 100 pounds of air pressure and
the jack mechanism will not operate, and this would be true even if someone
inadvertently activated the controls. Further, each jack cylinder has
two pilot operated check valves and they must be unseated by hydraulic
pressure (Tr. 121-123). He identified a sketch of one of the leveling
jacks and explained the operation of the jack cylinder and how the jack
is extended (Exhibits C-5, C-3, Tr. 123-128).
Mr. Liberatori testified that if the hose to the jack in question
were "cracked" or disconnected oil under pressure would be released from
the inside of the jack cylinder, but this would not indicate that the
machine was malfunctioning because oil was coming out (Tr. 130). He
stated that he was called to the mine on April 9, 1981, to inspect the
truck jack in question and that he made certain tests and filled out a
service report. He measured the position of the jack with and without
hoses. He marked the jack and measured the drop or "drift" distances

2181

with a ruler. At 3:14 p.m. the ack cylinder was extended out to a
distance of 39 and 5/8 inches. At 3:18 p.m. it had dropped to 39 1/4
inches, and it dropped or "drifted" less than one inch in twelv2 minutes.
At 3:31 p.m. both hoses were removed from the jack, and 38 inches of
the
was exposed, which indicated a drop of l 5/8 inches with
both hoses off over a period of 30 minutes.
In his opinion, it was
not unusual for such a machine to drift this distance, and after a further
drift of another fraction of an inch it would stop (Tr. 129-134},
Mr. Liberatori stated that the ruck jacks are des
not drift or drop more
the distances which he
ecause
the dril holes have to be perfect or the machine "will teeter
it
could upset" (Tr.
34). When asked whether the jacks are des
to
hold a piece of elevated
stat
, he rep:i.ied "it is the same
, it's all
. 135).
He
expressed
in question was in proper
condicion,
and he
ence of any oil as normal and that it
not
coming from the
jack (Tr. 137).
Mr. Liberatori stateci
t he has been under Drill Tech trucks "a
lot of times",
has worked under the truck with the j
as the
support because "there is
lot of jobs that that's the
wav I can
get at it." He
thac
on the terrain, there is 12 to
14 inches of clearance under the axle, and there is room to crawl through.
He also indicated that the truck has huge
, weighs over 79,000
pounds, and has
steel blocks which limits its travel (Tr. 138). He
also indicated that there is 8 to 10 inches of clearance between the
truck axle and carriage and that the area would not compress more.
an inch because it would hit ~he steel blocks.
In order for the truck
to drop completely there would have to be complete iJ.ot valve failure,
but that this drop would probab
take 10 tcJ 12 seconds, which he believes
would be reasonable time for anyone to get out from under the machine
(Tr. 140).
Mr. Liberatori stated that with the jacks on the truck fully
extended, the truck would be securely blocked because that is the way
the system is des
He could not say the same for loaders or bulldozers because
do not have safety jacks designed to support them
(Tr. 142).
On cross-examination, Mr. Liberatori stated that his tests on the
cited
inder was made over a couple of hours duration, that the
hoses were taken
off, and that the jacks protrude far enough
from the truck so that there was no need to crawl under the truck to check
the jack (Tr. 146-147). He indicated that he was familiar with the truck
operations manual and indicated that it says nothing about blocking out
the vehicle before it is
(Tr. 151). He indicated that he would
not block the truck in question to work on it if it were parked where
it was on the day the citation issued, but if it were on an incline
he would put it in gear and block it (Tr. 152). Blocking would
one
an extra margin of safety to prevent it from
or ro
(Tr. 153).

Mr. Liberatori confirmed that the truck cylinder in question
was not leaking oil and that if it were it would drop faster than it
did during his test, and i t would eventually jam ~.tself (Tr. 15 7).
He explained the presence of oil on the outside of the jack as a possible
leaky seal or 11 0 11 ring, which could possibly cause a drop of a distance
of 1 1/2 inches (Tr. 159-160). He also indicated that there is almost
no possibility of the jacks in question completely failing, but he
conceded that he did not perform routine maintenance on the jack in
questi6d (Tr. 161). He also con~ed~~ that if the jacks failed completely
and the truck dropped two inches there is a danger of the truck roll
upsetting or toppling over if it were in the process of drilling and this
would present a hazard since the jacks are not fail-safe (Tr. 16l, 166).
Mr. Liberatori stated that performing maintenance on the truck,
such as greasing the universals or changing the tires would require it to
be elevated, and he would feel comp
confident doing this work with
the truck elevated by means of the three jacks and with no
(Tr. 168).
-1'. ::.Io=-=.r. ::.r. ::.i. ::.s. ::.o=n respondent's General Mine Superintendent testified
on April 9, 1981, he was at the mine with the
crew conduct
a r~n
inspection of the machines at every job site, and he was
apnrox ma
8 miles from the site of the drill truck which was cited.
'foe ,- 'Chanic and the inspector called him over the radio. The inspector
inf med him that the truck had no blocking and was unsafe and wanted
him to ome to the scene
t away. Hr. Morrison advised the inspector
that he would come as soon as possible, and he eventually arrived at
the scene some 20 minutes or a half hour later (Tr. 170-173).
c:__:c:..=.i;,.;;.;;_..;;;;;..:_...

th~t

Mr. Morrison testified that he discussed the situation with the
inspector, and pointed out to him that the jack rod which he believed
was leaking was actually inside the jack tube or sheathing and that what
he observed was the outside of the tube. The inspector told him that
if he had gotten there sooner he would not have issued the order. The
inspector advisea him that the jack was unsafe because it was leaking,
and the mechanic took a jack hose off to see whether the jack would drop.
It dropped about an inch or so and the hose was then reattached. The
inspector advised him that he wanted the jack removed and repaired, and
Mr. Morrison advised him that he probably fix it but wanted to check it
first and that the truck would not be moved from the site (Tr. 175).
Mr. Morrison stated that after the inspector left the site, one of
his mechanics removed the hoses and oil came out of the hoses but the drill
"sat there". There was no internal leak of any oil coming down the
jack rod. The Beckwith Company was then called to in to check the jack
and he observed Mr. Liberatori conduct his tests and he concurred with
his testimony concerning the test results (Tr. 176-177).
Hr. Morrison stated that the inspector was called back to the mine
on Monday, April 13, 1981, and was told that there were leaks from the

2183

jack rod. The
believed it was scored, and before spending
$2000 to repair the jack Mr. Morrison wanted to make sure it was defective
(Tr. 177). Mr. Morrison also indicated that the jack moved no more on
Monday than it did the day the citation issued on the previously Friday.
The inspector insisted that the jack leaked and indicated that he wouldn't
remove the order until it was fixed (Tr. 179).
Mr. Morrison stated that the drill truck in question had not been
used since it was cited, and that contract drillers have been used since
that time (Tr. 181). He also indicated that on May 14, 1982, the Inspector
came to the mine and asked to see the truck so that he could look at the
checkpoints and valves (Tr. 179). Mr. Morrison believed that the inspector
issued his order because he (Morrison) did not go to the scene promptly
(Tr. 182-183).
On cross-examination Mr. Morrison confirmed that subsequent to
the issuance of the citation the jack in question was broken down and
taken apart by Stockdale Mine and
found nothing wrong with it.
He identified
exhibit C-6 as the jack after it was returned
by Stockdale. Mr. Morrison could not recall telling the inspector
that the jack haa a defective o-ring (Tr. 185).
Mr. Morrison stated that the work performed on the truck when it
was cited entailed the
of hoses from the truck engine to
an oil lubrifiner located near the front tire. The mechanics were
there only to put a hose on the enginer, and this work took "probably
20 minutes" (Tr. 187). He also confirmed that company policy required
that vehicles be blocked out when work is performed under them, but that
the Drill Tech trucks have never been blocked. He also confirm~d th~t
the imminent
order on the truck was the first such order issued at
the mine and that it caused him some concern (Tr. 187-188).
Mr. Morrison confirmed that when the inspector returned to the site
on Monday,
13, the two back wheels were still suspended and the
tires were off the
However, the front jack had collapsed and
the tire was on the ground. This would indicate that someone either let
the front jack down or it collapsed by leaking down. Assuming it leaked
down 12 inches, then he conceded that there would be something wrong
with it in that it had a leak
. 192-193).
mechanic, testified that he operated the drill truck
in question
years, and for the past three years has performed
maintenance on it in his capacity as a mechanic. He confirmed that
at the time the inspector arrived at the scene he and Mr. Lewis
had just
changing an engine oil hose. The inspector asked n1m
whether or not the front jack would drop if the hose broke loose, and
when he disconnected the hose at the inspector's request, oil came out
of the hose and the jack dropped approximately 1/2 inch. Mr. Morrison
was sununor:~d to the scene and when he arrived the hoses were taken comple
off and little oil came off and the jack did not move.

218·J

Mr. Hamilton denied that the inspector asked him whether he had
worked under the truck. However, he admitted that he had worked under
the truck and had his tools there, but that he did not believe it was
dangerous. He also conceded that when he performs maintenance on the
truck in question he never blocked it because he believed the truck jacks
are adequate for this purpose.
On
Mr. Hamilton confirmed that when he repaired
the enging oil hose he was under the truck, but that it was not jacked
up at that time. He jacked it up so that the hose could be passed over
the front wheel fender area. He also confirmed that when he cracked
the jack hose to test the hydraulic system he was standing on the front
fender and was in no position to observe any movement of the truck. He
indicated that he had heard that an "0 11 ring
one of the jack valves
was defective
194-212).
testified that at the time the order issued he was
working as a driller on the truck which was cited. At the time, he was
helping Terry Hamilton repair an oil line which had been damaged the day
before. The truck was on the
at one time during the
rs,
but was subs
jacked up to facilitate the installation of some
clamps.
Mr. Wagner stated that the
jacks on the truck have several
safety features which prevent the truck from
The
tor
asked him to "break the hose" on the front
to ascertain whether
the truck would fall, and when he disconnected the jack hose, the ja~k
dropped approximately 1/4 to 1/2 inch. He did not measure the distance,
but simply relied on his experience to estimate the distance.
Mr. Wagner stated that he had worked with the truck on many occasions
dril
holes, and he estimated that he drilled approximately 30 holes
on any given shift and had no problems with the jacks functioning p
He believed the front jack on the truck which was cited was in a good
and safe operating condition at the time the order was issued.
Mr. Wagner stated that at the time the order issued, he could recall
no oil or hydraulic fluid present on the front jack, and if it were there,
it must have come from the "mast" and not from the hydraulic jack cylinder.
He denied that he told the
tor that he had been wo
under the
truck.
On
s-examination Mr. Wagner confirmed that he never worked
under the truck, but that Mr. Hamilton was under it at the time he was
repairing the
oil hose. All repairs were completed at the time
the inspector arrived at the scene, and in view of the fact that he and
Mr. Hamilton were on a "break" the truck was left in a raised position.
He confirmed that the
tor asked him why the truck had not been
blocked and that he (Wagner) told the inspector that it had been "on
the jacks".

2180

Mr. Wagner stated that he believed the front truck jack was in
good condition. He also confirmed that he had heard that an "o" ring
on the jack had been found to be defective when it was dismantled by a
maintenance contractor (Tr. 227-242).
John McElheny, truck mechanic, testified that on April 9, 1981, he
was asked to disconnect the hydraulic hose line to the front hydraulic
jack on the Drill Tech truck in question. Present were Mr. Morrison,
Mr. Wagner, and the inspector. When he disconnected the line, the pressure
was bled off, oil came out of the hose, but he could not detect any movement in the truck. He had never previously performed any TI:aintenance
on the truck except for working on the directional turn
, but this
did not
his crawling under the truck.
Mr.
stated that he was at the truck area approximately
15 to 20 minutes while testing it and he saw nothing wrong with the jack
in question.
On cross-examination Mr. McElheny stated that because of his position
on top of the truck at the time the testing was conducted, he was in
no position to observe any movement of the truck when the jack hose
line was disconnected. He could not recall observing any
oil on the ground under the truck, and while he may have observed some
oil on the
cylinder, he did recall whether it was present on
the hose (Tr. 247-262).
Gary L. Maney, General Manager, testified that on May 14, 1982,
he spoke with the inspector concerning the order and citation iri. que9tion.
The inspector had come to the mine for the purpose of gathering additional
evidence in preparation for the hearing, and wanted to test the drill
truck in question. However, the machine was not operable at the time.
Mr. Maney stated that during his conversation with the
tor he stated to
Mr. Maney that had Mr. Morrison shown up when he called him he probably
would not have issued the imminent
order. Mr.
also indicated
that he had no personal knowledge concerning the condition of the truck
in question (Tr. 270-275).
Hr. Morrison was recalled, and he testified that the jack in question
was taken off the truck and replaced, and he indicated that the company
did this because the inspector thought it was defective. An
cylinder was placed on the truck and inspector Niehenke was called back
to the mine to abate the citation. Mr. Morrison indicated that the company
still has the parts from the jack that was taken off, and to his knowledge
the jack was not defective. However, in response to a question as to
whether the jack cylinder may have had a defective "O" ring, as referred
to in the
tor's notes, Mr. Morrison stated that he could not recall
telling the inspector that the jack may have had a cracked 11 0 11
after
it was dismantled by the repair company which gave them a replacement
(Tr. 278-285).
~~~-'-'-"---'-"--'--"..,.;._--'=---=--=-=-=-==-=== and

he confirmed that repair companies
the company a replacement and taking

218G

the old one for repairs
. 289). When asked an opinion as to whether
the jack dropping an inch and five-eighths within 30 minutes was unusual,
Mr. Liberatori stated "it's workable" and "you could live with it" (Tr. 290).
He also indicated that "it was very near normal" (Tr. 291).
.

.

.

~-'-~~~-N_i_e_h_e_n_k_e_

was recalled, and was questioned about his citation
concerning the allegation that the front jack of the truck was not
maintained in a safe condition. He stated that he based his conclusion
that this was so on the oil Or
ic fluid that he observed dh the
outside of the jack and on the
He indicated that there was "a
continual path of oil from the side of the jack to the
on the
(Tr. 294). He confirmed that oil came out when the jack hose was part
removed to test it, but he conceded that he did not know where the oil
was coming from and assumed that it was from the jack (Tr. 295),
The inspector identified exhibit 4-B as the jack hose in question
and confirmed that the hose was on the outside of the jack housing. He
also indicated that a drop of two inches when the hose was cracked is
not normal, and that if the safety valve were operative it should not
have dropped at all (Tr. 296). Since it did drop, he concluded that it
was not naintained in a safe condition (Tr. 297).

As indicated earlier, the inspector issued one citation in this
case citing conditions or practices which he believed violated mandatory
safety standards 30 CFR 77.405(b) and 77.404(a). He concluded that the
failure to block the truck which was suspended in the air by means of
three hydraulic jacks which were ah integral part of the truck constituted
a violation of section 77.405(b). After testing the front jack and
finding that it "bled off", he also concluded that the truck was not being
maintained in a safe condition, and that the failure to remove it from
service constituted a violatio~ of section 77.404(a).
In addition to his charges of violations of the aforementioned cited
mandatory safety standards, the inspector also found that the conditions
and practices cited on the face of the citation also constituted an
imminent danger pursuant to section 107(a) of the Act, and that the
violations were "significant and substantial" ones.
Mandatory

standard 30 CFR 77.404(a), provides as follows:

Mobile and stationary machLnery and equipment
shall be maintained in sah.
ing condition
an<l machinery or equipment .ln u1u;afe condition
snall be removed from service imm2dia
standard 30 CFR 77.4Qj~b), provide3 as follows:
No work shall be performed under machinery or
equipment that has been raised until such .nachinery
or equipment has been securely blocKed in position.

218'/

Fact of Violation - 30 CFR 77.404(a)
Section 77.404(a) requires that equipment be maintained in a safe
operating condition and that any such equipment which is unsafe is
required to be removed from service immediately. On the facts of this
case, .I conclude and find that MSHA has failed to establish through any
credible evidence that the drill truck was not in safe operating condition
because of the purported defective front hydraulic jack. At the time
the inspector looked at the truck, it was not in operation, the engine
was not running, and at the time the mechanic performed the so called
test by cracking the hydraulic hose valve, the engine was not started
and there was no power to the truck hydraulic system. Further, the
inspector conceded that he had no way of telling precisely what the
problem was since he "could not see into the internal parts to that
hydraulic jack" (Tr. 47). He also conceded that he assumed that the
oil he observed running down the outside of the jack came from the jack
itself and not from any other source (Tr. 296). He insisted that a
properly operating pilot safety valve would not have caused the jack
to drop at all even if it were cracked or bled off as it was during the
test. When it did, he concluded that the jack was not being maintained
in a safe operating condition (Tr. 297).
There is nothing in the record to suggest that the inspector had
any reason to suspect that the front hydraulic jack in question was
defective prior to the time the mechanic loosened the pilot check valve
fitting. The truck caught the inspector's attention because it was elevated
and not blocked, and that was his principle concern. His concern was that
with the truck wheels on the ground, a two-inch drop in the front hydraulic
jack would result in crushing injuries in the event a man were under it
and had his head between the truck frame and the axle (Tr. 55). However,
in this case the inspector stated that after the test was conducted on
the front hydraulic jack, he decided to immediately issue his imminent
danger withdrawal order. Under these circumstances, the effect of that
action immediately caused the truck to be taken out of service. Although
this was not done by the operator, the result is the same.
Inspector Niehenke believed that the truck was not being maintained
in a safe operating condition because the front hydraulic jack dropped
approximately two tnches in five minutes when the hydraulic hose fitt
was "cracked" or "bled off" when loosened with a wrench. Mr. Niehenke
asked a mechanic to crack the fitting in order to determine whether a
pilot check valve was functioning properly. When the fitting was cracked,
the inspector observed hydraulic oil coming.from the fitting, and he
concluded that pilot valve was defective. In his opinion, a properly
operating valve would not permit any oil to come out of the fitting,
even when cracked or tested. He also believed that a properly operating
pilot valve would not have permitted the front jack to drop two inches
when cracked or tested, and stated that the purpose of the check valve
was to keep the hydraulic cylinder extended even if there was a loss in
hydraulic pressure due to a broken hose or fitting.

2188

The drill truck in question is a.large, three axle machine with
ten tires, and the purpose of the hydraulic jacks is to keep the truck
level during the drilling of vertical holes. The truck is normally used
to drill holes while blast
overburden, and as indicated earlier, the
function of the three hydraulic jacks is to stablize the drill rig during
the drilling process. During the drilling process the jacks and drill
are operated by levers by the drill truck operator, and there is no
to suggest that anyone has to c-rawl under the machine while it is in its
normal drilling position. Therefore, it seems clear to me that at the
time the inspector observed the truck in its elevated position it was
not located where it would normally be while
As a matter of
fact, the truck was near the preparation plant and some maintenance
was being performed on it by two mechanics who had their equipment in
a p
truck parked nearby. Further, there is no evidence that the
two rear hydraulic jacks were defective or unsafe. As a matter of fact
the inspector stated that he did not ask the mechanic to crack the valves
on the rear jacks since he was only concerned with the front one since
he observed oil on the outside of the jack. Although he also alluded
to some oil on the ground, he could not tell whether it came from the
truck hydraulic jack, and since the mechanics had just completed
oil filters on the truck it is possible that this was the source o
oil.
Respondent's witness Liberatori, a journeyman mechanic whose experience
included maintenance work in Drill Tech Truck hydraulic systems, testified
that each hydraulic jack cylinder has two
pilot check valves, and
he stated that in order to make the jacks go up or down the truck engine
.must be running so that the hydraulic pressure is built· up to a .poin:t
to overcome the check valves. With the engine off, he indicated that there
is only 100 pounds of air pressure and that the jack mechanism will
not work. He also indicated that the jack pilot valves can only be unseated
by hydraulic pressure, and that if one of the jacks is "cracked" or
disconnected oil pressure would be released from inside the jack cylinder,
but that simply because this oil is released in these circumstances does
not indicate that the jack is defective. He explained the presence
of any oil on the outside of the jack as a possible leaky seal or ring,
and he conceded that a total failure of the jack during the drilling
process could present a hazard.
On the basis of all of the evidence and testimony adduced in this
case, I cannot conclude that MSHA has established by a preponderance of
any credible evidence that the alleged defective pilot check valve on
the front hydraulic jack in question was defective or unsafe. On the
facts presented in this case, it seems clear to me that the inspector
conducted a rather cursory and superficial examination of the jack in
question. I believe that he decided to issue his withdrawal order when
he found that the two mechanics had been under the suspended truck without
blocking it, and that the "testingtt of the jack in question was done in
an attempt to justify his order. I venture a guess that had the truck
not been suspended in the air, neither the inspector nor the operator

218J

would have any reason to crack ot test the front jack pilot valve, thereby
releasing the oil and causing the jack to slowly drop for a distance of
two inches. In short, I cannot conclude that this drop of two inches,
which I believe was the result of the cracking or lossening of the valve,
was in fact a safety defect affecting the safe operation of that truck
while in use during the drilling of overburden.
In view of the foregoing findings and conclusions, I conclude and
find that MSHA has failed to establish a violation of section 77.405(a)
and that nortion of the citation which alleges such a violation IS VACATED.
Fact of violation - 30 CFR 77.405(b)
Section 77.405(b) requires that raised machinery or equipment be
securely blocked in position before any work is performed under it.
It seems clear to me from the arguments made on the record in this c2se
that Cambria's position is that the drill truck in question was
blocked in position by means of the three hydraulic jacks which are an
integral part of the machine (Tr. 18). On the other hand, it seems equally
clear to me that MSHA's position is that the three hydraulic jacks in
question are not a suitable substitute for the requirements that the
machine be independently blocked by means other than the truck jacks,
Apart from the testimony presented by Cambria's witnesses with respect
to the use of the truck jacks to stablize the truck while it was being
worked on by the two mechanics, Cambria relies on a "policy guideline"
found in MSHA's "Inspector's Manual", Exhibit R-5, which states as follows:
Mechanical means that are manufactured as an
integral part of the machine for the purpose
of securing a portion of the machine in a raised
position is acceptable as meeting the requirements
of this section.
MSHA's position with regard to the so-called "policy guideline" is
that it is inapplicable to the facts presented in this case, and that
other "information bulletins" and "interpretative memorandums 11 make it
clear that raised equipment such as the truck which was been cited,
must be blocked by independent means and blocking materials other than
the jacks in question. After careful consideration of the arguments
presented, I conclude and find that MSHA has the better part of the argument
and that the three jacks which are an integral part of the drill truck
in question may not be used as a 11 suitable substitute" for the blocking
requirements of section 77.404(b), and my reasons for this finding follow
below.
It seems clear to me from the phctographs of the trucki.n question,
exhibits C-1 through C-4, C-8, and R-4 (a) through R-4 (d), as well as
the testimony adduced in this case, that the purpose of the three truck
jacks is to stabilize the truck and maintain it in a level position while

2180

actually drilling holes during the blasting of overburden. Keeping
the truck
and secure insures an accurate drill hole and prevents
a drill from deviating from its intended course and possibly tipping
the truck over. However, once the truck is removed from the drilling
site for the purpose of performing maintenance, as was the case here,
I cannot conclude that the hydraulic jacks, even if
were functioning
properly, could ever insure against a forward or backward movement of
the truck while in an elevated position. The
of the standard
is specific on this point. It requires
understand that
term the intent and
of the standard is
some
means of blocking be used to insure against movement of the equipment
while maintenance is performed on it. As correctly stated by MSHA's
counsel ~uring the course of oral arguments during the hearing, '~lo
11
means b
It is clear from the evidence and tes
adduced in this case
that the truck in question was raised and that it was not blocked against
movement by blocking materials independent of the hydraulic jacks.
Respondent's own witness, mechanic Liberatori, conceded that blocking
would provide an extra margin of
to prevent the machine from
falling or rolling, and I
ect his suggestion that this would not be
the case if the truck were elevated on level
as it
was in this case. Under the circumstances, that portion of the citation
charging a violation of section 77. 405 (b), IS AFFIRMED.
The alleged imminent danger
"Imminent danger" is defined in section 3(j) of the Act, 30 U.S.C.
820(j) as: "The existence of any condition or practice in a coal or
other mine which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.''
§

Section 107(a) of the Act provides as follows:
If, upon any inspection or investigation of a
coal or other mine which is
ect to this Act,
an authorized representative of the Secretary finds
that an imminent
exists, such representative
shall determine the extent of the area of such mine
throughout which the danger exists, and issue an
order requiring the operator of such mine to cause
all persons, except those referred to in section 104(c),
to be withdrawn from, and to be prohibited from
entericg, such area until an authorized
ive
of the Secretary determines that such imminent danger
and the condition or practice which caused such imminent
danger no
exists. The issuance of an order
under this subsection shall not preclude the issuance
of a citation under section 104 or the proposing of
a
ty under section 110.

2191.

The legislative history with respect to the concept of
danger," Committee on Education and Labor, HouE;e of Representatives,
Legislative History of Federal Coal Mine Health and Safety Act of 1969
at page 44 (March 1970), states in pertinent part as follows:
The definition of an "imminent
is
broadened from that in the 1952 Act in recognition of
the need to be concerned with any condition or practice,
which may lead to sudden
death or injury before the danger can be abated. It
is not limited to just disastrous
accidents, as
in the past, but all accidents which could be fatal or
nonfatal to one or more persons before abatement of
the condition or practice can be achieved.
[Emphasis
added]

The concept of an imminent danger as it has
evolved in this industry is that the situation is
so serious that the miners must be removed from the
forthwith when the danger is discovered ***·
The seriousness of the situation demands such immediate
action. The first concern is the danger to the miner.
Delays, even of a few minutes may be critical or
disastrous.
1

The former Interior Board of Mine Operations Appeals has held that
an imminent danger exists when the condition or
observed could
reasonably be expected to cause death or serious
harm to a miner
or normal mining operations are permitted to
in the area before
the
condition is eliminated. The dangerous conclition cannot
be divorced from
v.
91 F. 2d 277,
objective and the inspector's
subjective opinion need not be taken at
The question is
whether a reasonable man, with the inspector's education and experience,
would conclude that the facts indicate an impending accident or disaster,
likely to occur at any moment, but not necessarily immediately. Freeman
Coal Mining Corporation, 2 IBMA 197, 212 (1973), aff'd., Freeman Coal
v. Inter~or Board of Mine Operations Appeals, et al.,
9th Cir. 1974). The foregoing princ les were reaffirmed
in Old Ben Coal Corporation v. Interior Board of Mine Operations Appeals,
et al., 523 F.2d 25 (7th Cir. 1975), where the court, following Freeman
phrased the test for determining an imminent
as follows:
[E]ach case must be decided on its own peculiar
facts. The question in every case is essentially the
proximity of the
to life and limb. Put another
way: Would a reasonable man, given a
ied inspector's
education and
, conclude that the facts indicate

2192

an impending accident or disaster, threatening to
kill 9r to cause serious physical harm, likely to
occur at any moment, but not necessarily immediately?
The uncertainty must be of a nature that would induce
a reasonable man to estimate that, if normal operations
designed to extract coal in the disputed area proceeded,
it is at least just as probable as not that the feared
accident or disaster would occur before elimination
of the danger.
In a proceeding concerning an imminent danger order, the burden of
proof lies with the applicant, and the applicant must show by a preponderance
of the evidence that imminent danger did not exist. Lucas Coal Company,
1 IBMA 138 (1972); Carbon Fuel Company, 2 IBMA 43 (1973); Freeman Coal
2 IBMA 197 (1973), However, since withdrawal orders
are
tions within the meaning of section 7 (d) of the Administrative
Procedure Act (5 U.S.C. § 556(d) (1970)), and may be imposed only if the
government produces reliable, probative and substantial evidence which
establishes a prima facie case, MSHA must bear the burden of establishing
a prima facie case. It should be noted that the obligation of es
a prima facie case is not the same as bearing the burden of proof. That is,
although the applicant bears the ultimate burden of proof in a proceeding
involving an imminent danger withdrawal order, MSHA must still make out a
prima facie case. Thus, the order is properly vacated where the applicant
proves
a preponderance of the evidence that an imminent danger was
not present when the order was issued. See: Lucas Coal Company, supra;
2 IBMA 43 (1973); Freeman Coal Mining Corporation,
supra; Zeigler Coal Company, 4 IBMA 88, 82 I.D. 111 (1975); Quarto Mining
Company and Nacco Mining Company, 3 IBMA 199, 81 I.D. 328, (1973-1974);
3 IBMA 322, 81 I.D. 562 (1974).
The Seventh Circuit also noted in its Old Be~ opinion that an
inspector has a very difficult job because he is primarily concerned
about the safety of men, and the court indicated that an inspector should
be supported unless he has clearly abused his discretion (523 F.2d at 31).
On the facts presented in
Ben the court observed that an inspector
cannot wait until the danger is so inunediate that no one can remain in
the mine to correct the condition, nor can the inspector wait until an
explosion or
has occurred before issuing a withdrawal order (523 F.2d,
at 34). Thus, on the facts presented in this proceeding, MSHA must show
that reasonable men with the inspector's education and experience would
conclude that the condition of the front jack on the truck which was
cited constituted a situation indicating an impending accident or disaster,
likely to occur at any moment, but not necessarily immediately. Likewise,
hSHA must also show that the lack of suitable blocking at the time the order
issued also presented such an imminently dangerous situation.

2193

After careful consideration of all of the testimony and evidence
adduced in thi~ case, I cannot conclude that the conditions described by
the inspector in his citation constituted an imminent danger on April 9, 1981.
At the time the inspector observed the elevated truck no one was working
under it and the two mechanics who were present were at a safe distance
eating their lunch in a service truck parked nearby. After observing
the elevated truck, interviewing the two mechanics and learning that
they had been under the truck performing some rnaintenance·work shortly
before his arrival on the scene, the inspector proceeded to examine the
front jack and he instructed one of the mechanics to loosen or bleed off
the front pilot check valve with a wrench. It seems to me that if the
inspector was really concerned about the irruninency of the situation,
he should have instructed the mechanic to lower the jacks so that all
of the wheels were safely on the ground before app
the truck
to conduct the so-called test. His statement that he could not do so
because he 11 does not direct the work force" is inconsistent since he
specifically instructed and directed the mechanic to loosen the pilot
valve to perform the test. Since the inspector obviously believed that
instructing the mechanic to perform this chore was within his authority, I
fail to understand why he may have believed that instruct
him to lower
the jacks somehow exceeded that authority. In my view, the
of
the jacks would have eliminated any perceived hazard, and permitt
the mechanic to go ahead and approach the truck and perform the test
adds to the doubts which I have concerning the presence of any irruninent
danger at the time the order issued.
Although he denied telling anyone that he would not have issued
an imminent danger order had mine superintendent Morrison come to the
scene immediately when he called him over the mine telephone, the inspector
did concede that he was upset over Mr. Morrison's failure to come irrunedia•·
Having viewed the inspector during his testimony that Mr. Morrison "had
something more important to do than to worry about his personnel", I
believe that the inspector was somewhat chagrined by Mr. Morrison's failure
to come to the scene immediately, and that this did influence the inspector's
judgment somewhat in deciding to issue the order.
The inspector's asserted justification for issuing an imminent danger
order was his belief that once he left the scene the two mechanics would
have gone back under the truck. On the facts presented here, I find nothing
to substantiate the inspector's speculative conclusion that the two men
would defy his instructions. One of the two "mechanics" who purportedly
· were under the tru:ck prior to the inspector's ·arrival at the scene was in
fact a driller (Louis Wagner) who was helping the mechanic. Mr. Wagner
testified that he was not under the truck, and he denied telling the
inspector that he had been under the truck. He also testified that at
the time of the inspector's arrival all of the work on the truck had been
completed. The inspector conceded that an oil filter could be changed
from the top of the truck without the necessity of anyone going under it.
Further, the facts here also show that the two rear jacks were in proper
working order. Coupled wi•h my finding that the two inch drop in the

219·1

front jack was caused by the deliberate loosening of the fitting during
the so-called "test", I cannot conclude that the condition of the front
jack was such as to constitute an imminent danger.
In addition, I cannot
conclude that the absence of b
presented any imminent danger on
the facts here presented. Under the circumstances, thatportion of the
citation which al
an imminent danger IS VACATED, but my findings
concerning the existence of a violation of section 77.405(b) stand as
affirmed.

In
v.
J F}fSHRC 822, issued on
ril 7, 1981, the Commission interpre
104(d) and set forth the test for determining whether a condition
a particular violation is of such a nature as could
contribute to the cause and effect of a mine hazard.
case was a civil penalty pro
eleven
citations in which the inspectors marked the ns & S" block
on the face of each citation.
In that case the Commission held that a
violation is
ignificant and substantial" if -based upon the particular facts
that
violation, there exists a reasonable likelihood
that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.
On the facts presented in this case, the inspector marked the "S and
S" block on the face of the citation form; and at the same time he made
a finding that an imminent danger existed. However, I find nothing in
section 104(a) or 107(a) that specifically authorizes an inspector to
also make an "S & S" finding when he issues such citations or orders.
The only
mention of any "significant or substantial" violation
is found in section 104(d)
) and section 104(e)(l). The former section
deals with "unwarrantable failure" citations, and the latter deals with
"patterns of violations" which are considered to be significant and
substantial. Under section 104(d)(l), a condition precedent to a finding
of "significant and substantial" is that no imminent danger exists.
Therefore, on the facts of this case, the inspector's findings that the
conditions or practices cited constituted an imminent danger as well as
significant and substantial violations is somewhat inconsistent.
In the instant case, it seems obvious to me that the inspector
believed that the failure to independent
block the truck while performing
maintenance on it while in an elevated position constituted a significant
and substantial violation of section 77.405(b). Although it may be true
that the hydraulic truck jacks provide some measure of support for the
truck wh:Ue it is the actual drilling mode, I am convinced that the primary
purpose of those jacks is to stablize and level the truck during the
drilling process so as to insure an accurate drill hole.
In this case,
the truck was not engaged in any drilling, but was parked away from the
drill site while maintenance was being performed on it. The practice of

2190

not using any independent means of blocking under the truck to preclude
any forward or backward movement while someone may be under it is a
serious practice which, under the proper set of circumstances, could
result in serious injuries to those individuals. The question here is
whether those circumstances were present. While it can be argued that
at the time the citation issued, the work on the truck had been completed
and no one was under it, the respondent's candid admission in this case
that the Drill-Tech Trucks were never blocked is a practice which I
consider to be a significant and substantial violation. Accordingly, the
inspector's finding in this regard IS AFFIRNED.
Size of Business and Effect of Civil Penalty on the Respondent 1 s Ability
to Remain in Business
The parties stipulated that the mine is a fairly large operation
and that the assessment of reasonable penalties will not adversely affect
the respondent's ability to remain in business. I adopt these stipulations
as my findings on these issues.
History of Prior Violations
The parties stipulated that the respondent has a small history of
prior violations. In fact, they also stipulated that for the 24-month
period prior to the issuance of the instant citations, the respondent had
five paid assessments, none of which were for violations of the same
safety standards at issue in these proceedings. Taking into account the
size of the mining operation here, I conclude and find that for the~urpose
of this proceeding Cambria Coal has a good safety record and that any
additional increase of the civil penalty assessment made in this case is
not warranted.
Negligence
The evidence here establishes that the notice of mine policy against
working under elevated equipment without adequate blocking was posted
on the mine bulletin board, and one of the mechanics admitted he had
been under the truck in question without any independent means of blocking.
Under the circumstances, I conclude that the respondent here failed to
take reasonable care to prevent the cited conditions and that this
constitutes ordinary negligence.
Gravity
I conclude and find that the failure to provide an independent means
of blocking for the elevated truck in question constituted a serious
violation. The respondent conceded that it did not use independent blocking
under such drill trucks because of its belief that the hydraulic jacks
which are an integral part of the equipment provided adequate support. Although
respondent may have acted out of a mistaken belief that MSHA's policy

219G

guidelines provided an exception for the
for independent
blocking, I find that the practice of relying on the truck hydraulic
jacks alone while performing maintenance on the truck is serious.

The inspector believed that the
exhibited bad faith in
correcting the cited conditions and his conclusions in this regard stem
from the fact that he had to make several t
back to the mine before
he finally abated the order. On one occasion when he went back and found
that the front jack still dropped an eighth of an inch when tested, he
refused to abate the order and was compelled to return again. However,
the facts show that the jack was dismantled and completely replaced with
a new one. This was apparently done after the operator opted to leave
the truck where the
found it, and there is no evidence that the
operator used it after it was cited. Simp
because the inspector was
required to make several trips back to the mine to abate the citation
is no reason to conclude that there was bad faith. Here, the effect
of the withdrawal order was to remove the truck from service and no abatement
time was fixed by the
tor. The abatement time was therefore up
to the operator 1 s discretion, and the fact that the
ctor may have
been inconvenienced is not sufficient grounds for me to conclude that
the operator here exhibited a lack of good faith in finally correcting
the cited conditions. Accordingly, I cannot conclude that there was a
lack of good faith compliance in this case.
Penalty Assessment
In view of the foregoing findings and conclusions, and taking into
account all of the statutory criteria found in section llO(i) of the Act,
I conclude that a civil penalty assessment in the amount of $400 is
reasonable and
for the violation which has been affirmed,
namely 30 CFR 77.405(b).
Order
Respondent IS ORDERED to pay a civil penalty assessment in the amount
of $400 within thirty (30) days of the date of this decision for the
violation in question, and upon receipt of payment by MSHA, the civil
penalty matter should be DISMISSED.

c~?f: Kif:~~
Administrative Law

Distribution:
Robert A. Cohen,
., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd.,
, VA 22203 (Certified Mail)
Bruno A. Muscatello,
., Brydon, Stepanian & Muscatello, 228 South Main
St., Butler, PA 16001 (Certified Mail)

2181

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

RANGER FUEL CORPORATION,
Contestant

22041

CONTEST OF ORDER

v.

Docket No. WEVA 79-217-R

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

Order No. 0662645 6/4/79

CONTEST OF CITATION
Docket No. WEVA 79-218-R
Citation No. 0660570;
6/8/79
Beckley No. 2 Mine
ORDER OF DISMISSAL
Contestant requests approval to wit draw its Contests
stances herein,
in the captioned cases. Under the
R § 2700.11. The
permission to withdraw is ranted.
cases are therefore dismi ed.

I

Mel±c
stant

I

f

Distribution:

By certifiedlma 1.

I

Timothy W. Gresham, Esq., P~tt ton R
Group, Ranger Fuel Corporat!Lon P.O.
24266
\

er, Pittston Coal
ox 4000, Lebanon, VA

Leo McGinn, Esq., Office of he Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203

2196

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

Civil Penalty Proceed

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

Docket No: WEST 82-153
A.O. No: 48-00900-03028

v.

Medicine Bow Mine

MEDICINE BOW COAL COMPANY,
Respondent
DECISION
This case has been presented on stipulated facts and cross motions
for judgement. The issue as stated in petitioner's brief, is whether the
assessment office can properly propose a penalty on the basis of an imminent
danger order issued under § 107 of the Act.
For reasons that are unexplained in the record, the MSHA inspector did
not issue c±tations with the imminent danger order even though the description
of the imminent danger also described violations of two of the safety standards.
After the imminent danger order was terminated on December 16, 198l;MSHA modified
it as follows:
"The 107(a) order No: 1017366 issued December 15, 1981
while investigating a fonnal 103(g)(l) miner's complaint
is hereby modified to include the violations of Sections
§77-1605(i) and 77-1600(b) of CFR.30. The 107(a) has been
terminated."
The above quoted modification was issued on January 4, 1982.
The Secretary does not argue in its brief, that the inspector made a
mistake in failing to check the citation block, and that the mistake should.
be excused. He does not argue that on January 4, 1982 the inspector intended to
or should have issued 2 citations rather than attempting to modify an order
that had been terminated, and he <loes not argue that the modification of the
order had the effect of transforming the imminent danger order into one or more
citations. In fact, the Secretary's two-page brief does not even mention the
modification of the order. The Secretary simply takes the position that a 107
imminent danger order is a proper foundation for a penalty proceeding.

2198

The Secretary rAlies on two Commission cases in support of
its position. In fact the Secretary says that these two cases
"are dispositive of the legal issue in this case." The firs.t case
relied on is Secretary of Labor vs. Tazco, Inc., 3 FMSHRC 1895
(August 1981) It stands for the proposition that if a judge finds a
violation he can not suspend the payment of the penalty. The
the second case, Secretary of Labor v~; V~n Mulvehill~ Coal Co. Inc.
2 F;-.,1SHRC 283 (February 1980) stands for the proposition that i
a combination citation and imminent danger order is issued, the
allegation of a violation of a standard survives the vacation of
the imminent danger order.
Far from being "dispositive ",I
find these cases have little relevance to the curret issue. The
Tazco case is similar to the RH Coal
case decided by
the
tment of the Interior s Board of ~ine
erations Appeals
with reference to the 1969 coal Act 7 IBMA 64(1976). In that
case Judge Kennedy had issued a default decision in which he
found that one of the violations was both non-serious and nonnegligent and therefore warranted a penalty of zero. The Board
reversed and assessed a penalty of $1 because assessment of a
penalty was considered mandatory. In the Tazco case J
Kennedy accepted a settlement of $400 but because the mine operator
had fired the foreman who had caused the violation, he suspended
payment of the
ty. The Commission said that suspension of
the payment was equivalent to assessing a zero penalty, and that
that was improper because assessment of a penalty is mandatory.
But the fact that both the IBMA and the Commission have held that
assessment of a penal
is mandatory if a violation is found, does
not mean that the procedures set forth in the Act for finding such a
violation and assessing a penalty can be ign0red.
Section llO(a) of the Act provides for the assessment of
penalties for violations of a health or safety standard or any
other provision of the Act, but Sections 104 and 105 provide
the procedures for such assessment. Section 104 provides for
the issuance of citations and orders (but not imminent danger
orders) for violations of the health and safety standards.
Section lOS(a) provides for an assessment after "the Secre
issues a citation or order under Section 104 ••• " There is
no provision for assessment after the issuance of orders under
Section 107 of the Act.
The conversion of an imminent danger order into a combined
imminent danger order and citation is merely a matter of making
a checkmark in an appro
te box and making reference to the
appropriate section of the Act. If the Secretary was arguing
that che omission of this simple step was inadvertent and
that no prejudice resulted, and that insistence upon the proper
steps being taken at the proper time would be elevating form
over substance, 1 would tend to agree. If he argued that the
amendment of the order to include reference to two safety standards
had the effect of converting it to a citation, I might agree with that.
The Secretary, however, advances neither of these arguments. He flatly
contends that an order issued under Section 107 alone is an appropriate

2.. r-,,.) u~~.,'L

foundation for the assessment of a civil penalty. I hold that
it is not. The last sentence of Section 107(a) states "The issuance of
an order under this subsection shall not preclude the issuance of a citation
under·Section 104 or the propos
():fa penalty under Section ll0. 11 This
distinguishes the Mine Safety Act from the Coal Mine Act. Under Section
104(b) of the Coal Mine Act a notice of violation (citation) could not be
issued if an imminent danger existed. Under the old Act, an imminent danger
order was an appropriate foundation for a penalty action. Under the
present Act it is not.
The charges

st the company are DIS~1ISSED.

Clz,r Cs Cl/!al'Y, (,_
Charles C. Moore, Jr.,
Administrative Law Judge
Distribution:

By Certified Mail

Katherine Vigil, Esq., Office of the Solicitor, U.S.
Department of Labor, 1961 Stout Street, Denver,
co 80294
Brent L. Mochan, Esq., Assistant Counsel, Medicine
Bow Coal Company, St. Louis, MO 63102

2201

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

DEC 121

Civil Penalty Proceedings

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

Docket No: CENT 81-274-H
A/O No: 41-00906-05001 F KL 5
Docket No: CENT 81-275-M
A/O No: 41-00906-05002 KL 5

v.

Sherwin Plant
GARRETT CONSTRUCTION COMPANY,
Respondent
DECISION
Appearances:

Anna Wolgast, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington,
Virginia, for Petitioner
Norman Thomas, Esq., c/o Harris, Cook & Browning,
P.O. Drawer 1901, Corpus Christi, TX, for Respondent

Before:

Judge Moore

The three citations involved in these cases all grew out of the
same-accident. ior some reason the assessment office assigned one of
the citations a separate assessment number and as a result two penalty
cases were filed. The accident occurred when two scoop drivers operating
at an estimated 30 miles per hour and approaching each other in an eastwest direction, both turned north to avoid a collision. They did collide
and one of the drivers was killed and the other was seriously injured.
The charges against the company are that the drivers were not in full
control of their machines, that there were no traffic signs posted and
that it did not report the accident as soon as it should have. It was
stipulated that respondent was small, that there was good faith abatement
and that the assessed penalties would not affect its ability to continue
in business.
30 C.F.R. 55.9-24 states "Mobile equipment operators shall have
full control of the equipment while it is in motion." The citation No:
171696 states that the accident was due to "failure of the equipment
operators, to be in full control of the vehicles while in motion." One
operator, the one who did not survive was going the wrong way in a well
established traffic pattern. The survivi.i.g driver who W(1S executing the
traffic pattern correctly does not remember enough about the accident to
be a valuable witness, but the accident report speculates that he may
have turned north into the path of the other vehicle just before the
collision. There is no evidence that either scraper was defective or
that the operators did not have full control in the sense that the
scrapers went anywhere other than where the operators wanted to go. The
fact that a collision occurred does not establish that ~ither of the
drivers was not in control of his vehicle. See the Commission Decision
in Secretary v. Old Ben Coal Company, Docket No: LAKE 80-399, FMSHRC
1800, 1804. Footnote 4. The citation is Vacated.

220;2

- 2 30 C.F.R. 55.9-71 states:
Mandatory. Traffic rules including speed, signals, and
warning signs shall be standardized at each mine and posted.
As to the word "standardized" I do not believe that the regulation
requires that all parts of a mine have the same traffic rules.
As to
signals and warning signs, if they exist at the mine then they are
posted by the very fact that they are there. There is no requirement
that any particular signals and warning signs be erected.
If there is a
speed limit it would have to be posted but at this particular mine a
speed limit would have been of no use since the scrapers did not have
speedometers.
Mr. Carl White did all the hiring at this construction site and
interviewed every employee. Mr. White does not speak Spanish and it was
his view that if the person could speak English well enough to be interviewed
in English he could speak it well enough to understand directions. Mr.
Vincel Woods stated that at the beginning of every shift or when there
was a change in the location where the scrapers were to dump the material,
he would always take che first run and have the other drivers follow
him.
He always set the traffic pattern in a clock-wise direction. The
only traffic rule was to follow Mr. Wood's example.
Following his
direction the scoops, with the aid of a push cat, would load dirt in a
particular area, transport it to the levee being constructed and follow
a clock-wise path back to the loading area. The road (artuaJly a path in
a large flat area created by the t~scks of the vehicles) was roughly
~ircular. A traffic sign advising drivers to follow Mr. Wood's directions
would not have prevented Mr. Gonzales from going the wrong way. He
obviously knew which way he was supposed to go and chose to not follow
the directions. There was some evidence that he had done that in the
past, but there was no suggestion that he was playing "chicken." A sign
would not have prevented him from doing it again. The fact remains
however, that regardless of what the regulation means concerning standardization
of speed signs, signals and warning signs, it does require that traffic
rules be posted. This mine did have the traffic rule that the drivers
would follow the clock-wise traffic pattern demonstrated by Mr. Woods at
the beginning of each shift or when a new area was being worked. That
traffic rule should have been posted somewhere at the site of the construction
work and it was not. The argument that the traffic rules posted 10 miles
away at the plant are sufficient, is rejected.
There was therefore, a
violation, but since I can not find that it led to the accident I can not
find that the gravity or negligence was high. The citation is affirmed
and a penalty of $100 is assessed.
The accident happened at 4.30 p.m. and MSHA was not notified until
11.30 p.m.,
30 C.F.R. 50.10 states in part "if an accident occurs, an
operator shall immediately contact the MSHA district or sub-district
office having jurisdiction over its mine." There were many reasons why
it took so long to get around notifying MSHA. The accident occurred
late in the shift, treatment had to be given to the surviving miner, the
ambulance got lost and had t~ be re-contacted and directed and the
families of the two victims had to be notified. Mr. Garrett did report
the accident to the mine owner, Reynolds Metals Company.
From his

2206

- 3 -

testimony it seems that the main reason he did not report it to MSHA was
that he did not think it was a requirement. The site had never been
inspected by MSHA. Garrett Construction Company was constructing a
reservoir 10 miles from the Reynolds plant for the possible future use
of Reynolds for the dumping of tailings from its milling process. The
bauxite involved is mined in South America and sent to Reynolds who
mills it into alumina and at a later time the alumina is turned into
aluminum by a process which removes the oxygen. The idea that these
construction workers did not think
were engaged in mining is
understood. The ordinary usage of the words mine and miner, would not,
in my opinion, include respondents, but the definitions of mines and
mining contained in the Act is sufficiently broad to encompass respondent's
operation.
For the latest Commission decision on construction
employees
miners see Sec. v. Inland Coal Company, 4 FMSHRC,
Docket No: VINC 77-164 (July 15, 1982),
While I agree with respondents that there were other more important
matters to take care of before notifying MSHA, there was nevertheless
some time during this 7 hour period when someone should have notified
MSHA of the accident. MSHA inspectors could not have arrived at the
scene any earlier than they actually did but the failure to file the
report is nevertheless a technical violation, I agree with the assessment
office that $20 is an appropriate penalty. The citation is affirmed.
Respondent is accordingly ordered to pay, within 30 days, to MSHA a
civil penalty iD the amount of $120.

~C01~~~

Charles C. Moore, Jr.,
Administrative Law Judge
Distribution: By Certified Mail

Anna Wolgast, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Norman Thomas,
., c/o Harris, Cook & Browning,
1901, Corpus Christi, TX 78403

P.O. Drawer

The coverage issue (often referred as jurisdiction")is thoroughly
and convincingly argued in the Secretary's prehearing and supplemental
hriefs. The construction site is a part of a mine and respondent
is covered by the Act.

220·1

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

December 13, 1982
SECRETARY OF LABOR,
on behalf of
PHILLIP CAMERON,
Applicant
v.

Complaint o

Discrimination

Docket No. WEVA 82-190-D
MSHA Case No. MORG CD 82-3

CONSOLIDATION COAL COMPANY,
Respondent

Ireland

DECISION
Appearances~

Covette Rooney,
., Off
of the Solicitor,
U. S. Department of Labor, Philadelphia,
PA, for Applicant, Phillip Cameron;
Robert M. Vukas, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania,
Respondent, Consolidation Coal Company.

Before:

Judge Merlin

This case is a complaint filed under section 105(c) (1)
of the Act by the Ser.retary of Labor on behalf of Phillip
Cameron against Consolidation Coal Company alleging that the
five-day suspension given Mr. Cameron by·the company on
November 6, 1981, was a discriminatory action in violation
of section 105(c) (1) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 815 (c) {l).
The complainant is a haulage motorman at the operator's
Ireland Mine where he has worked since 1969 (Tr. 10-11, 59,
122). On October 31, 1981, he was the motorman on a 27-ton
lead locomotive which pulled a trip
10 to 12 mine cars
filled with coal from the belt to the dumping point
(Tr. 10-12, 24). Until that day
had operated with a
single
locomotive and if ~ars became detached he used a
safety switch on the line to derail them and so prevent a
runaway (Tr. 12-13). He also had a helper, Mr. Aston, who
rode with him on the locomotive (Tr. 14, 15). Among other
duties, Mr. Aston helped gather the empties and gave the
complainant the signal to take on empties (Tr. 14- ).

2200

On October 31, 1981,
complainant and Mr. Aston were
informed by Mr. Gibson, the section foreman, that the procedure regarding these tr
was changed and that thereafter
instead of the safety switch there would be a 10-ton trailing
locomot
at the back of the trip to act as a brake if any
of the cars should uncouple ( . 15, 1.8-19, .124, .3.36) •. The
complainant and Mr .. Aston told Mra. Gibson
did not think
the 10-ton locomotive was sufficient to hold back the tr
(Tr. 20, 126). Because that day was a S
and other
sections were not working, a 50-ton locomotive was available
(Tr. 27). Consequently, for that day Mr. Gibson let the
complainant and Mr. Aston use a 50-ton locomotive on their
trips (Tr. 27, 128-129). Mr. Gibson told the complainant
and Mr. Aston that the use of a 50-ton locomotive was on
for that
and that on the following Monday a 10-ton
locomotive would have to be used (Tr. 76, 337).
On Saturday night the complainant telephoned Mr, Shreves,
an official of the United
Workers (Tr. 29). According
to the complainant, Mr. Shreves
with him that the
10-ton locomotive was inadequate and said that i
anything
came up the complainant should call the union safety committee (Tr. 29, 76-79, 80). On the morning
November 2
before beginning work, the complainant also spoke to Stacy
Knox, a union safety committeeman for the Ireland Mine, who
according to the complainant said that if the complainant
were asked to do anything hazardous he should let Mr. Knox
know and that Mr. Knox would be available if mine management
called him (Tr. 30, 79).
Upon arriving at work Mr. Gibson informed the complainant
and Mr. Aston that a 10-ton locomotive would be used as the
trailing locomotive on the
trips (Tr. 30, 130-131, 337).
The complainant and Mr. Aston asked for the union safety
committee (Tr. 31, 130-131). The complainant's testimony is
inconsistent
th respect to whether he refused to work. At
times he stated he did not refuse to work (Tr. 70, 71, 73,
102, 106).
At other times he admitted that he had refused
to work (Tr. 78, 79, 101). The same inconsistency is present
in Mr. Aston's testimony (Tr. 135, 162-163, 164, 167, 173,
174). The section foreman testified that both men refused
to run trips with the 10-ton locomotive as their trailing
locomotive {Tr. 337, 339). The section foreman stated that
upon their refusal
sent them to Mr. Fleming, the River
Portal shift foreman, and they were assigned to other work
carrying cribs (Tr. 133, 134, 337-339). The complainant

2200

testif
that as the motorman on the lead locomotive he was
himself in no immediate danger but that he
ared for
Mr. Aston's safety (Tr. 36, 99-100, 103). He also stated
that a motorman with more seniority, Mr. Schubert, had been
on sick leave for 2 years but that when Mr. Schubert returned
he, the complainant; would then be on the trailing locomotive
(Tr. 36, 38-39).
.
Mr. Fleming telephoned Mr. Omear, the mine superintendent,
and told him of the actions of the complainant and Mr. Aston
(Tr. 279). Mr. Ornear testified that he told Mr. F
again to order the complainant and Mr. Aston back to work
(Tr. 280). Mr. Ornear stated that he told Mr. F
to
tell the complainant and Mr. Aston that no more than 10 cars
would be used on each trip (Tr. 289). Mr. Aston then said
he would work if the order were put in writing (Tr. 162-163,
174, 280-281). The order to work was not put in writing and
according to J\1r. Ornear such orders customari
are not
in writing (Tr. 281). Mr. Aston admitted that putting the
order in writing would not have affected the al
lack of
safety in using the 10-ton locomotive as a trailing locomotive
(Tr. 175-177).
Mr. Omear also ordered Mr. Fleming to obtain a 10-ton
locomotive so that a test could be run to demonstrate to the
complainant and-Mr. Aston that th~ procedure would be safe
(Tr. 282). A locomotive was obtained but some of its sanders
were not working so they were repaired (Tr. 288).
In the
meantime while the complainant and Mr. Aston were loading
cribs, Mr. Bettinazzi, the operator's safety supervisor,
spoke to them (Tr. 349). The complainant and Mr. Aston
again expressed a view that the 10-ton locomotive was not
safe but Mr. Bettinazzi questioned the position in which
they were putting themselves because they had not tested a
10-ton locomotive as a trailing locomotive on any
their
trips (Tr. 349, 352-353). Finally, a 10-ton locomotive was
ready and tests were performed on two of the steepest
available grades selected by the complainant (Tr. 49, 96-97,
98, 138, 139, 189, 241, 289-290, 357). First the trip was
stopped and the brake of the lead locomotive was then
released (Tr. 49, 138, 290). Next the trip was allowed to
drift back about 10 feet before brakes were applied (Tr. 50,
139, 290-291).
In both instances the 10-ton locomotive held
(Tr. 50, 139, 290, 291, 356-357). The complainant, Mr. Aston,
and the union safety committeeman, Mr. Wise testified that
they were not satisfied with the test results because the
trip had no speed, an actual runaway situation was not
created and the trolley pole an the trailing locomotive was

220;

in the wrong position (Tr. 50, 52, 53, 108, 139-140, 189,
227-228). However, the operator's superintendent testified
that during the test the 27-ton lead locomotive remained
attached to the trip (Tr. 290). This was additional weight
pressing against the trailing locomotive and would not be
present in a true uncoupling because in an actual occurrence
the lead locomotive would detach ltself from the trip
(Tr. 260-261). Despite their dissatisfaction with the test
the complainant and Mr. Aston returned to work that day
(Tr. 52-53, 141).
On November 5th a further test of the 10-ton locomotive
was performed for state and MSHA inspectors on the same
steep grade as the prior test (Tr. 97-98, 245-247).
On this
test the trip was allowed to coast 100 feet before the
trailing locomotive was used to brake and stop the cars
(Tr. 142, 189, 191, 257, 261, 268, 292, 358-359). The trip
stopped within 150 or 200 feet (Tr. 142, 189, 239, 257, 268,
292, 359). Based upon this test the state and federal
inspectors felt the 10-ton locomotive was safe (Tr. 189-190,
257, 292, 295, 359). Mr. Aston was still afraid and testified
that in his opinion the only way to do a valid test would be
to have an uncoupling without telling the motorman on the
trailing locomotive (Tr. 143-146, 262). Mr. Wise, the
safety committeeman testified that the test was not valid
because it was controlled (Tr. 189).
In particular, he
objected to the fact that the trolley pole on the trailing
locomotive had been turned (Tr. 190-192, 227-228).
The
operator's witnesses took the position that the test was
even more adverse than actual circumstances because in an
actual uncoupling the cars would come to a stop before they
started to move back whereas in the second test the cars
were allowed to move back 100 feet immediately prior to the
trailing locomotive being used to brake them (Tr. 293-295,
324-325, 358-359). Moreover, the 27-ton lead locomotive
remained attached to the trip and again was additional
weight pressing against the trailing locomotive which would
not be so in a actual uncoupling (Tr. 260-261, 264). The
day after the test was performed for the inspectors the
operator suspended the complainant for five days.
In Pasula v. Consolidation Coal Company, 2 FMSHRC 2786,
2799-2800 (October 1980), rev'd on other grounds, Consolidation
Coal Company v. Marshall, 663 F.2d 1211 (3rd Cir. 1981), the
Corrunission held that the complainant establishes a prima f acie
case of a violation of section lOS(c) (1) if he proves by a

22oa

preponderance
the evidence that (1) he engaged in protected activity, and (2) the adverse action was motivated in
any part by the protected activity. The Conuuission further
cided that an operator may respond by either rebutting the
prima
case or if it cannot rebut
showing as a
defense
even if part of its mot
were unlawful, (1)
it was also motivated by the rnine~'s unprotected act
s1
and (2) it would have
the adverse act
in any event
the unprotected activities alone.
It must first be determined what the complainant did.
As already noted, at times during
s testimony the complainant alleged that he on
asked for the union s
committee but did not re
e to work (Tr. 70, 71, 73, 1021
106). At other times he admitted he refus
to work
(Tr. 78, 79, 101). Mr. Aston testified about refus
to
work in a similar
contradictory manner (Tr. 135, 162-163,
164, 167, 173, 174). Mr.
son, the section foreman,
testif
that the complainant had refused to work
(Tr. 337-339). The testimony of the operator's other
witnesses also was that the complainant had refused to work
(Tr. 279, 280, 289, 348). Even the un
safety committeeman,
Mr. Wise, who testified for the complainant stated that
under the circumstances he would say the comp
ant had
refused to work (Tr. 226). I also note that
complainant
and Mr. Aston were assigned to other work (Tr. 40, 133,
337-339). This assignment makes no sense unless
had in
refused to work.
If the complainant
asked
for the s
committee, mine management would not on its
own initiative have disrupted operat
s by voluntarily
assigning him to other work. The haste and urgency with
which the mine superintendent arranged to test the 10-ton
locomotive is only explicable
light of a refusal to work
by the complainant and Mr. Aston. The test was arranged in
order to satisfy
complainant so that he would return to
work.
The complaint (Para. 5), the Solicitor's prehear
statement,
oral statement at the close of the Secretary's
case at the hearing, and her
f all allege a protected
right to refuse to work under the circumstances of this
case. The reason for the complainant's belated protestations
at the hearing that he merely asked
the union safe
committee obviously was
s realization
under
collective bargaining agreement he could
to work only
in conditions that were abnormally and immediately dangerous
to himself beyond the normal hazards inherent in the operation

220J

which could reasonably be
cted to cause death or s
physical harm before
(Optr. 's Exh. No. 1, pg. 2).
At the hearing the comp inant admitted the situation was
not of this nature (Tr. 37, 75). The great weight of the
evidence demonstrates
the complainant refused to work
and I so conclude.
I further conclude
the operator suspended the
complainant because of his refusal to work. The suspension
letter states that the
did not exercise
individual safety ri
good faith under Artie
section (i) of the Nat
Bituminous Coal Wage
of 1981 which as set forth in the immediately preceding
paragraph gives
a right not to work
conditions abnormally and immediately dangerous to himself.
(MSHA's Exh. No. 1) Even more importantly, the testimony
all the operator's
ses and most particularly the
superintendent makes clear that it was the complainant's
refusal to work which so disturbed mine management. The
superintendent stated that if the complainant had filed a
safety grievance or had used the safety committee before
refusing to work he would not have been disciplined (Tr. 318).
Under applicab
Commission decisions a miner may
refuse to work if he has a good faith, reasonable belief
regarding the hazardous nature of the condition in question.
Pasula, supra; Rob
v. United Castle Coal Company,
3 FMSHRC 803 (
Dunmire and Estle v. Northern
Coal Company, 4 FMSHRC 126 (February 1982). Good faith
simply means an honest be
that a hazard exists.
Robinette, 3 FMSHRC at 810. A reasonable belief does not
have to be supported
obj
ascertainable evidence.
Rather the miner's honest perception must be a reasonable
one under the circumstances. Such reasonableness can be
established at a minimum through the miner's own testimony
as to the conditions
to with the testimony
evaluated for its detail,
logic and overall
credibility.
physical testimonial or expert
evidence also may be introduced and the operator may respond
in kind.
Robinette, 3 FMSHRC at 812. Unreasonable,
irrational or completely unfounded work refusals are not
within the purview of
statute. Robinette, 3 FMSHRC at
811. I conclude that the tests which were performed on the
10-ton locomotive on November 2 and November 5 demonstrated
that it could be used sa ly as a trailing locomotive in the
manner proposed by the
This circumstance however,
does not preclude a reasonable, good faith belief on the
part of the complainant regarding the existence of a hazard.

2210

The Act's protection may be extended to those who possess
the requisite bel f even if the evidence ultimately shows
the conditions were not as serious or hazardous as believed.
Consolidation Coal Company, 663 F.2d at 1219; Dunmire,
4 FMSHRC at 131. The reasonableness of the be
must be
judged as of the time it was held.
The complainant said he
d not believe the 10-ton
locomotive was big enough to stop
trip of mine cars
(Tr. 20). The complainant had been a motorman for several
years and had used a 10-ton locomotive to pull trips of
supply cars carrying materials such as roof bolts and gravel
(Tr. 20-21). The complainant maintained that the trips of
supply cars he had pulled were composed of fewer and smaller
cars so that they did not weigh as much as a tr
of mine
cars (Tr. 21-23). The operator's witnesses pointed out that
more power was needed from a lead locomotive which pulls a
trip than from a trailing locomotive whose function is to
stop uncoupled cars (Tr. 314-315, 352, 360). But the
operator's superintendent could not remember whether the
operator ever had used a 27-ton motor as a lead locomotive
and a 10-ton motor as a trailing locomotive on main haulage
(Tr. 311). In
termining the honesty and reasonableness of
the complainant's belief, I find relevant the fact that the
procedure for using a 10-ton trailing locomotive on a tr
of mine cars such as the complainant drove was new and had
not been done previously in this mine.
Despite his experience
as a motorman the complainant therefore, had never been
confronted with this precise situation . . Moreover, there
were some grades over which the mine trip had to travel
which reasonably could· be expected to add to his concern
(Tr. 23-24). The MSHA inspector testified that until the
test was performed, he did not know whether the Lrip would
hold (Tr. 266). After weighing all the evidence I determine
that the record supports the complainant's position that his
belief about the safety hazard was in good faith and was
reasonable.
This brings us to the most significant issue presented
by this ca~~~ M~Y a miner refuse to work when he himself is
in no danger but the risk is to someone else? The complainant
admitted that use of a 10-ton tr ling locomotive on the day
in question posed no danger to him (Tr. 36, 99, 100). The
risk was only to Mr. Aston who would be riding the trailing
locomotive (Tr. 36, 99). As set forth above, the collective
bargaining agreement specifically provides that an employee
will not be required to work under conditions he has reasonable grounds to believe to be abnormally and immediately
dangerous to himself. Becaus~ .any danger that might have
been present was not to the complainant himself the

2211

arbitrator upheld
disc 1
suspension under the
collective bargaining agreement (Optr's. Exh. No. 1).
I do
not believe the arbitrator's decision is bind
here nor do
I believe it has any collateral estoppel effect under
criteria set forth by
Commission regard
the issues
presented here.
Brad
v. Belva Coal Company, 4 FMSHRC
982 (June 1982).
Act does not contain language the
same as or similar to
the collective
ing
agreement reg
ind
danger.
In addi
, under
the collective bargain
agreement the test of the hazard
is much stricter than that under the Mine Act and ac
to the arbitrator's decision
ective evidence must support
the miner's belief.
The Mine Act does not contain any provision express
granting a miner the r
to re
e to work.
Relying upon
islative
story and statutory purposes the Commission in
Pasula interpreted the Act to afford a ri
to refuse to
work in unsafe or unhealthful conditions.
2 FMSHRC at
2790-2793.
However, Pasula presented an individual whose
own health and safety were
ing j
zed at the time he
refused to work.
The Commission
this very clear in its
decision as follows:
Pasula was not merely speculating that he
might in the future suf
from
effects
loud noise, but he was already so suffering when
he stopped the machine.
He was not equipped with
personal hearing protectors, he had a
been
or would have shortly been exposed to more noise
than permitted by the appl able mine health
standard, and he was also operating a machine that
requires substantial attention to its operation.
In view
his actual suffering, his view that he
was exposed to unhealthful and excess
noise
levels was reasonable and was supported by
objective, ascertainable evidence.
2 FMSHRC at 2793.
Upon review, the Third Circuit in Consolidation
Coal Company held that the statutory scheme in conjunction
with the legislat
history supported a right to refuse to
work in the event the miner possesses a reasonable, good
faith belief that specific working conditions or practices
threaten his safety or health, stating in this respect as
follows:

Under the circumstances of this case, neither
party in their briefs took a position contrary to
the existence of a right to walk off the job.
Thus, although we need not address the extent of
such a right~ the statutory scheme, in conjunction
with the
islative history of the 1977 Mine Act,
supports a right to refuse to work in the event
that the miner possesses a reasonable, good faith
belief that specific working conditions or practices
threaten his safety or health.
663 F.2d at 1217 n.6.

(Emphasis supplied).

Thus in upholding the
to refuse to work the Third
Circuit referred to the individual's belief of a threat to
his own health or safety. Although the Court stated it was
not defining the perimeters of the right to refuse to work,
s holding that the miner did not have the right to shut
down a continuous mining machine, thereby
ing others
from working, ind
s that the right to refuse to work has
rather strict limits and that it does not extend beyond the
endangered individual himself.
Although the legislative history, as explained in
Pasula, supports an interpretation of the Act which affords
a protected refusal to work, it does not support giving this
right to miners who are not in danger. The relevant committee
report refers to a refusal to work in conditions believed to
be unsafe or unhealthful. S. Rep. No. 95-181, 95th Cong.,
1st Sess., at 35-36 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health
Act of 1977, at 623-624 (1978) ["Leg. Hist."]. The discussions on the floor of the Senate and House make clear
Congress was concerned about individuals who face a threat
to their own health or safety. Discussion on the Senate
floor in this respect was as follows:
Mr. Church.
I wonder if the distinguished
chairman would be good enough to clarify a point
concerning section 106(c), the discrimination
clause.

1J

One individual can,
course, communicate to the operator
on behalf of other endangered persons who also have decided
for themselves not to work. Dunmire, 4 FMSHRC at 134.

2213

It is my impression that the purpose of this
section is to insure that miners will play an
active role in the enforcement of the act by
protesting [sic] them against any possible discrimination which they might suffer as a result of
their actions to afford themselves of the protection of the act.
•
It seems to me that this goal cannot be
achieved unless miners faced with conditions that
they believe threaten the
safety or health have
the right to refuse to
without fear
sal. Does the committee contemplate that
such a right would be afforded under this
Mr. Williams. The committee intends that
miners not be faced with the Robson's choice of
deciding between their s
and health or their
jobs.
The right to refuse work under conditions
that a miner believes in good faith to threaten
his health and safety is essential if this act
to achieve its goal of a
and health
workplace for all miners.
Mr. Javits.
I think the chairman has succinctly presented the thinking
the committee on
this matter. Without such a right, workers acting
in good faith would not be able to afford themselves their rights under the full protection of
the act as responsible human beings.
Leg. Hist. at 1088-1089 (Emphasis supplied).
Similarly in the House of Representatives, Congressman
Perkins in discussing the bill as agreed to by the Conference
Committee stated:
Mr. Speaker, this legislation also provides
broader protection for miners who invoke their
safety rights.
If miners are to invoke their
rights and to enforce the act as we intend, they
must be protected from retaliation.
In the
admin trative rulings of the Department of
Interior have improperly denied the miner the
rights Congress intended. For example, Baker v.
North American Coal Co., .8 I.BMA 164 (1977) held

that a miner who refused to work because he had a
good faith belief that his life was in danger was
not protected from retaliation because the miner
had no "intent" to notify the Secretary. This
legislation will wipe out such restrictive interpretations of the safety discrimination provision
and will insure that they do· not recur.
Leg. Hist. at 1356 (Emphasis supplied) .
The complainant also relies upon the fact that at the
time in issue Mr. Schubert, who was the senior motorman for
a lead locomotive, had been on sick leave for 2 years due to
an accident but that when he returned, the complainant as
the junior motorman might then be on the trailing locomotive.
I conclude that what might or might not have happened when
Mr. Schubert returned to work was too remote and speculative
on November 2, 1981 to provide a basis for the complainant
to allege he was
any danger.
At that time Mr. Schubert
:r. ·.
never have returned or if he did, the complainant
mi t have been working somewhere else. 2
Tne complainant has referred to the "buddy" system and
the principle that
the mines, a miner is responsible for
the safety of his co-workers and especially for one with
whom he is working as a team (Tr. 40).
I recognize and
acknowledge these factors and I am,
course, cognizant of
the safety purposes which this statute was enacted to
advance and pursuant to which it must
liberally construed.
Nevertheless, I conclude that the right to refuse to work
which is after all, on
implied and not express cannot be
so greatly expanded in these proceedings.
As set forth
above, such action would be contrary to judicial prec8dent
and unsupported by legislative history. Moreover, the
extension of the right of refusal to individuals such as
the complainant would have great practical impact in the
mines by creating the possibil
of continual disruption
in operations through work stoppages caused by challenges
to management decisions from miners whose health and safety
are not in danger.
The wide ramifications of such situations
are demonstrated by the record in this case.
The mine
superintendent testified that if the complainant had been
willing to run the lead locomotive when Mr. Aston had been
afraid to be on the trailing locomotive, it would have been

2/ Mr. Schubert did return a few months thereafter but the
record does not indicate what job he performed upon his
return or what job the complainant had then (Tr. 39).

up to mine management to find someone else to go on the
tr ling locomotive or some other means (Tr. 323-324). Upon
questioning from the bench, the complainant testified that
he did not know what he would have done if mine management
had found someone else to go on the trailing locomotive and
he indicated that in that event a relevant inquiry would be
whether or not such other individual was experienced
(Tr. 117-120).
It was clear to me at
time I listened to
complainant and later when I read the transcript that he
intended to reserve to himself the right to decide whether
he would accept any other individual assigned by the operator
to be his tr ling motorman.
It is therefore only a short step from challenging
management's de sions to usurping its right to make them at
all.
In light of these factors, I find pertinent and
persuasive the following statement of the Court of Appeals
for the Seventh Circuit
Miller v. FMSHRC, 687 F.2d 194,
196 (1982):
"We are unwilling to impress on a statute that
does not explicitly entitle miners to stop work a construction that would make
impossible to maintain discipline in the mines."
The Solicitor and operator's counsel filed detailed
briefs which have been most helpful in analyzing the record,
defining the issues and deciding the case.
I have reviewed
and considered these excellent briefs. To the extent they
are inconsistent with this decision however, they are
rejected.
In light of the foregoing, I conclude that the corn~
plainant had no right under the Act to refuse to work and
that therefore he did not engage in protected activity.
Accordingly, he must be denied rel f and his complaint
dismissed.
ORDER
It is Ordered that the complaint be DISMISSED.

Paul Merlin
Chief Administrative Law Judge

2218

Distribution:

Certified mail.

Covette Rooney, Esq., Office of the Solicitor, U. S.
Department of Labor, Rm. 14480-Gateway Building,
3535 Market Street, Philadelphia,hPA 19104
Robert M. Vukas, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241

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

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

22041

Civil Penalty Proceeding

Docket No.

v.

PE~N

82-83

A. C. No. 36-00967-03107 F

BCNR MINING CORPORATION,
Respondent

Clyde Mine

DECISION APPROVING SETTLEMENT
Counsel for the Secretary of Labor filed on December 13, 1982, in the
above-entitled proceeding a motion for
of settlement. Under the
respondent would pay a reduced civil penalty of $2,000
of $10,000
the Assessment Office for the
single violation of 30 C.F.R. § 75.200 involved in this proceeding.
Section llO(i) of the Federal Mine
and Health Act of 1977 lists
six criteria which are required to be used in determining civil penalties.
As to the criterion of whether the payment of civil penalties would cause
respondent to discontinue in business, there are no data with re~pect to
respondent's financial condition in the motiort or in the official file.
The former Board of Mine Operations
held in Buffalo Mining Co., 2
IBMA 226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974), that
when an
fails to present any evidence with respect to its financial
condition, a judge may presume that the
of penalties would not
affect the operator's ability to continue in business.
In the absence of
anything in the record to indicate that a contrary conclusion should be
reached, I find that the payment of
will not cause respondent to
discontinue in business.
There is a considerable amount of materials in the file pertaining to
the criterion of respondent's history of previous violations. Those materials show that during the 24 months
the writing of the violation
alleged
proceeding~ respondent was assessed penalties for 608 violations at its Clyde Mine which is here involved. Under the assessment
formula which was in effect prior to May 21, 1982, when the violation here
involved was cited, a total of five penalty points would be assessed under
section 100.3(c)(l) of ~he penalty formula described in 30 C.F.R. § 100.3.
It is not possib~e to determine the number of penalty points which should
be assessed under section 100.3(c)(2) of the penalty formula because che
record does not contain information showing the number of inspection days
which were ~ssociated with the assessment of penalties for 608 violations.
A computer printout submitted by the
's attorney does show,
however, that 8 violations of section 75.200 were cited at the Clyde Mine
during the 4 months of 1979 included in the 24-month period preceding the

2218

issuance of the withdrawal order involved in this proceeding. During 1980,
the inspectors cited 32 violations of section 75.200 at the Clyde Mine, and
during the applicable 9 months of 1981, the inspectors cited 26 violations
of section 75.200. If the aforesaid number of violations for each applicable period is divided by the number of months during which the violations
were cited, it will be seen that an average of 2 violations per month of
se·ction 75. 200 wa·s cited in 1979, an average of ·2. 6 violations per month of
section 75.200 was cited in 1980, and an average of 2.8 violations per month
of section 75.200 was cited in 1981. During that same period of time, production at the Clyde Mine fell from 496,846 tons in 1980 to 293,515 tons in
1981. The foregoing data, therefore, support a conclusion that respondent
has been cited for an increasing number of violations of section 75.200,
despite a sharp decline in production, which indicates an unfavorable history of previous violations. In such circumstances, I would have assessed
a penalty of at least $400 under the criterion of history of previous violations if I had been assessing a penalty in a decision issued on the basis
of a hearing, assuming that respondent could not, at a hearing, have been
able to adduce evidence to show that its history of previous violations is
not as bad as the figures given above seem to indicate.
As to the criterion of the size of respondent 1 s business, the motion
for approval of settlement shows that respondent's total production from
all mines declined from 3,967,334 tons in 1980 to only 1,993,552 tons in
1981. As indicated in the preceding paragraph, there has been a similar
decline of production at the Clyde Mine. Even so, respondent should still
be classified as a large company as to which penalties should be assessed
in an upper· range of magnitude insofar as they are determined under the
criterion of the size of respondent's business.
The motion for approval of settlement states that respondent demonstrated a good-faith effort to achieve rapid compliance by closing down the
entire section, trimming any loose, unsupported ribs, installing rib posts
where needed, and reviewing the roof-control plan with the miners. Since a
withdrawal order was the vehicle used to cite the violation, the inspector
did not give a specific period of time within which the violation had to be
abated, but the violation was abated in a subsequent action sheet issued at
10:30 a.m. on the day following the citing of the violation. In such circumstances, respondent probably should be given some reduction in the penalty otherwise assessable under the other five criteria. I believe that the
settlement penalty of $2,000 reflects some tempering of the penalty under
the criterion of rapid good-faith abatement.
The motion for approval of settlement shows that the primary criteria
considered by the Secretary's counsel in agreeing to a reduction of the proposed penalty to $2,000 was based on an evaluation of the two criteria which
have not yet been discussed, that is, gravity and negligence. The violation
of section 75.200 was cited in Order No. 1050164 which alleged that respondent had violated Safety Precaution No. 29 of its roof-control plan because
there were loose and unsupported ribs in the No. 5 entry and crosscuts right
and left of the No. 5 entry near survey station 28+60 in the 2 Flat Section.
Safety Precaution No. 29 requires that loose ribs be taken down or supported
by erection of cribs or other supports in addition to the installation of
roof bolts on 4-foot centers.

221\J

There can be no doubt but that the ribs were loose in the vicinity of
the continuous-mining machine because the operator of the machine was killed
when the ribs on the left side of the entry fell on him. The motion for
approval of settlement, however, states that the
cited the violation of section 75.200 on the basis of an inspection of the mine at 5 a.m.
on Thursday which was about 6-1/2 hours after the occurrence of the fatal
accident on Wednesday evening. The motion for approval of settlement states
that interviews of the miners working on the 2 Flat Section at the time the
accident occurred do not show that the ribs on the left side of the entry
were observably loose prior to the occurrence of the accident, In such circumstances, the motion for approval of settlement concludes that, if a hearing had been held, it would have been difficult for the inspectors to
that respondent was
in failing to observe the loose ribs and erect
additional rib supports
to the occurrence of the accident,
The motion for approval of settlement shows the applicability of the
Commission's observation in Old Ben Coal Co., 4 FMSHRC 1800, 1804 (1982)
where the Commission noted that:

* * * A violation may occur absent an accident, and an
ury or
death does not ipso facto make out a violation, As here, however,
an accident may sometimes shed light on an unsafe situation that
had escaped previous notice or citation. ~~ "~ ~•
In this proceeding, it is obvious that the ribs were loose or they would not
have fallen upon the
of the continuous-mining machine. ,On t"!:ie
other hand, there may have been no indication that the ribs were loose
enough to be observable prior to the occurrence of the accident. The copy
of MSHA's accident report in the official file shows that the helper to
the operator of the continuous-mining machine stated that the rib did not
appear to be loose on the left side of the entry until after a portion of
the coal pillar had been taken on the left side of the entry.
The discussion above shows that most of the settlement penalty of
$2,000 would be assessable under the criterion of gravity because roof and
rib falls still account for a large percentage of injuries and deaths in
underground coal mines. As the foregoing discussion of respondent's history of previous violations shows, respondent is still being cited for an
increasing number of violations of section 75.200. Nearly all violations
of section 75.200 have a capacity of causing injury or death. Therefore,
it is appropriate that respondent be assessed a penalty of $2,000
under the criterion of gravity in the hope that respondent will devote an
increasing effort to reducing violations of section 75.200 at its Clyde
Mine.
The facts discussed above support a conclusion that the settlement
agreement should be approved because there were sufficient mitigating factors surrounding the occurrence of the alleged violation to support a reduction of the proposed penalty of $10,000 to the settlement amount of
$2,000.

2220

WHEREFORE, it is ordered:
(A) The motion for approval of settlement filed on December 13, 1982,
is granted and the settlement agreement is approved.
(B)
Pursuant to the
' settlement agreement, respondent, within
30
from the date of this decision, shall pay a civil penalty of $2,000.00
for the violation of section 75.200 alleged in Order No. 1050164 dated
September 24, 1981.

R~:-f;ef~y r;J/Zizjb
Administrative Law Judge
(Phone: 703-756-6225)

Distribution:
Howard K. Agran, Esq., Office of the Solicitor, U. S. Department of
Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Xail)
B. K. Taoras,
., Attorney for BCNR
Corporation, Kitt
Corporation, 455 Race Track Road, P. 0. Box 500, Headow Lands, PA
15347 (Certified Mail)

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

22041

ue:c 2i i982

Contest of Citation

MATHIES COAL COMPANY,
Contestant-Respondent

Docket No. PENN 82-9-R
Citation No. 1142337; 9/22/81

v.

Docket No, PENN 82-10-R
Citation No. 1142336; 9/22/81

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

Civil Penalty Proceeding
Docket No. PENN 82-35
A.O. No. 36-00963-03182
Mathies Mine

Appearances:

Janine G. Gismondi, Attorney, U.S. Department of Labor,
Philadelphia, Pennsylvania, for MSHA; Jerry Palmer, Attorney,
Pittsburgh, Pennsylvania, for Mathies Coal Company.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated cases were heard on the merits in Pittsburgh,
Pennsylvania on September 14, 1982. Docket No. PENN 82-35, concerns a
proposal for assessment of civil penalties filed by the Secretary pursuant
to Section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. 820(a), seeking civil penalties for two alleged violations of
certain mandatory safety standards found in Part 75, Title JO, Code of
Federal Regulations. Docket PENN 82-9-R is the contest filed by Mathies
Coal Company challenging one of the citations issued in the civil penalty
case, and Docket PENN 82-10-R is the contest challenging the second citation.
Issues
The principal issues presented in the civil penalty pr0ceeding are
(1) whether ::.ct>1..JV11dent h.:i.s violat:ed the provisions of the Act and implementing
regulatj ::.11 as alleged in ti1e proposal for assessment of civil penalty

2222

filed in this proceeding, and, if so, (2) the appropriate civil penalty
that should be assessed against the respondent for the alleged violation
based upon the criteria set forth in section llO(i) of the Act.
In determining the amount of civil penalty assessments, section llO(i)
of the Act requires consideration of tpe following criteria: (1) the
operator'~ history of previous violations, (2) the appropriate~ess of such
penalty to the size of the business of the operator charged, (3) whether
the operator was negligent, (4) the effect on the operator's ability to
continue in business, (5) the gravity of the violations, and (6) the
demonstrated good faith of the operator in attempting to achieve rapid
compliance after notification of the violations.
The issues presented in the Contests are whether the conditions or
practices cited by the inspector as the basis for the citations constituted
significant and substantial violations of the cited mandatory safety
standards.

1. The Federal Mine Safety and Health Act of 1977
30 U.S.C. § 801 et~·

Pub. L. 95-164,

2.

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

3.

Commission Rules, 29 C.F.R. § 2700.1 et seq.
Stipulations

The parties stipulated that Mathies Coal Company and the subject
mine are subject to the Act, and that the presiding Judge has jurisdiction
to hear and decide these cases. The parties also stipulated that the
payment of the civil penalties proposed by MSHA will not adversely
affect the operator 1 s ability to continue in business, and that mine
production for the period January 1, 1982 to May 21, 1982, was 73,000
tons, and that the mine ceased production on May 31, 1982.

Section 104(a) citation No. 1142336, September 22, 1981, cites a
violation of mandatory safety standard 30 CFR 75.1105, and the condition
or practice is described on the face of the citation as follows:
The air current used to ventilate the battery
charging station located in the No. 7 entry
at surveyor station 3+46 in the 4 face 24 butt
parallel section MMU054 was not coursed directly
into the return. The air was going to the working
face. The charge unit was setting in the middle
of the entry.
(The charge unit has been dangered
out until a proper station can be constructed.)

The inspector indicated that the alleged violation was "significant
and substantial", and he fixed the abatement time as 4:00 p.m.,
September 22, 1981.
Section 104(a) Citation No. 1142337, September 22, 1981, cites a
violation of mandatory safety standard 30 CFR 75.1722(a), and the condition
or practice is described on the face of the.citation as.follows:
Adequate guarding was not provided for the crossover belt conveyor at the drive head in the 4 Face
24 Butt Section MMU034. The head drive was not
guarded so to protect person from corning in contact
with moving parts.
The inspector indicated that the
violation was "s
and substantial" and he fixed the abatement time as 12:00 p.m., September 23,
1981.
MSHA's
testified as to his background
and experience,
inspected the mine on September 22,
1981, and he confirmed that he issued a citation (exhibit G-1) for a
violation of section 75.1722(a), for failure by the operator to properly
guard the drive motor or drive head of one of its conveyor belts. He
described the "drive head" as consisting of two rollers, gear sprockets
and a chain, and he explained that the belt is laced through the two
rollersand it drives the belt by pulling it through the rollers as it
is laced. The drive head is powered by a 460 AC horsepower motor, and
the drive head roller is approximately 15 to 20 feet in length, and the
moving parts include the rollers, belts, gears, and chain drive. The
belt was operating when he cited it and the moving parts of the drive head
were in motion (Tr. 8-17).
Mr. Wehr confirmed that the drive head did have a guard around it,
and he identified exhlbit G-2 as a simulated "drawing of a cutout"
indicating the type of guard being used (Tr. 17). He described the
guarding as one-by-six boards nailed across the length of the conveyor
belt to several posts which were anchored to the mine floor and wedged
solidly into the roof. The posts were approximately on five-foot centers,
and the posts were about 8 1/2 to 9 feet high. The posts were of wood,
approximately 6 to 10 inches in diameter, and the horizontal boards
extended along a 15 to 20 foot distance for the full distance of the drive
head, and they were nailed to the posts. The openings in the wooden
guarding were approximately 2 feet in height and 4 feet wide (Tr. 17-22).
Mr. Wehr stated that he measured the distance between the existing
guarding and the drive head itself by a folding rule which he inserted
through the guard opening, and found that it was approximately two feet.

These were the narrowest location between the guard and the belt, but
the separation between the
and belt became wider as it went by
the belt (Tr. 23).
Mr. Wehr identified exhibit G-3 as a copy of the
regulation
found in MSHA's "manual", and in his opinion the exist
guarding which
he observed on September 22, would not prevent an
from possibly
contact with the
parts of the drive head.
He believed
that the guarding openings were
enough to allow a person's hand
to pass through, and the
did not comport with the policy
which state that
be small enough to prevent this from
(Tr. 25) .
Mr. Wehr testified that one person is normally ass
to the belt
conveyor system to shovel or clean up spillage, conduct hand dusting,
or to check out the belt, and this is usually during one shift.
If
problems are encountered, extra people may be ass
to the belt (Tr. 26).
In addition, the fire boss or foreman would have occasion to travel
the belt area for the purpose of conducting his belt line examination, and
this is required to be done once
each production shift
. 27).
He also indicated that the floor bottom in the section is wet and damo,
and the location of the belt was at the top of a small
starting
in on the section, and these factors would present a sl
or fall hazard and
someone could actually fall
the guard openings and suffer possible
fatal
uries (Tr. 28).
Mr. Wehr stated that he has observed at least ten other similar
belt heads in the same mine and
they are all
by wire me.sh
nailed to boards and posts, or the wire mesh is hung up, and the opening
in the mesh is approximately one inch square (Tr. 29). He also identified
exhibit G-6 as a head roller des
similar to the one he cited (Tr. 37).
Mr. Wehr identified exhibit G-l(a), as a copy of his ''inspector's
statement" which he filled out at the time the guarding citation was issued,
and he indicated that with respect to the likelihood of any accident
he marked "probable" (Tr. 60), and the statement was admitted
ection (Tr. 61).
In response to bench questions,
ector Wehr conceded that the
exist
guarding did guard part of the head roller, and he indicated that
the roller changes position with
to the drive mechanism. He also
indicated that the distance from the guarding to the
roller
in question was four feet, and the distance from the guard to the drive
head was two feet.
The unguarded
parts were approximately two
feet from the floor (Tr. 62-63).
Mr. Wehr could not state why the openings around the gua
framework were left as they were, but he did indicate that similar wooden
guarding framework was used around the other belt locations previously
referred to, but that wire mesh was installed over it to provide a sturdy
construction. He conceded that the operator made an attempt to

the area in question, and he confirmed that the belt was newly installed
and had been in operation for three to four weeks. He also conceded
that it was possible that the operator intended to cover the framework
with meshing but had no opportunity to do so (Tr. 64). Although he discussed
the matter with the operator's escort, Mr. Dunbar, his notes do not reflect
any specific comments in this regard (Tr. 65). The citation was abated
by the installation of wire mesh over the guarding framework, and he
abated the citation on September 29th (Tr. 65).
Mr. Wehr stated that the bottom horizontal one-by-six board which
was nailed across the posts was approximately one foot off the ground,
that the second board was approximately four feet off the ground, and that
the third board which was located at the top running horizonatlly to the roof
was "fairly close to the top" (Tr. 65-6 7). In response to a question
concerning someone reaching the moving belt parts while walking adjacent
to the framework and slipping, he replied (Tr. 67):
THE WITNESS: At the distance where the four
foot mark is, that area, he would probably not come
in contact with the head roller itself, but the area
where the two foot is, he would be right into the
general area of the roller and the drive unit itself.
Mr. Wehr stated that he observed no one performing any work in the
belt area at the time the citation issued, but there is a supply storage
place in the area and an individual was there (Tr. 67). The preshift
examination was made on the prior shift, and the belt was a working belt
which was connected to a feeder and the belt portion which had been
installed was about 250 feet long (Tr. 68).
Mr. Wehr indicated that the manufacturer of the belt drive did
provide "a metal guard, two halves that bolt around the gear sprocket,
gears and the chain on the drive head itsel
(Tr. 72). He conceded
that this guard did decrease the severity where there are two or three
extra guarded parts, but indicated that his principal concern was the
two rollers which drove the belt and the belt lacing (Tr. 73-74). In
reply to further questions from the bench, Mr. Wehr responded as follows
(Tr. 74-79):

Q.

All right. Looking at that picture, if someone were walking adjacent to this, the post
they had, which is two feet out from the edge
of this machinery, someone who accidentally
slipped on that adjacent walkway or whatever,
it would take a little bit for him to get into
those rollers, wouldn't it? The fellow just
could not walk back there and slip through
this opening over all this R~eel construction
and fall into those rollers?

2220

THE WITNESS:

Q.

I'd say it's possible.

Well, anything is possible, but let us look
at the real world. How could someone accidentally
slip through one of these openings and fall over
that?

THE WITNESS: The openings itself? I would say
the possibility is there, plus the guard and type of
board that you have is one inch and say a fellow that
is your size is walking along the side and would trip
and fall, he 1 d more than likely burst through that
board or he could
underneath, strike his head
against the metal part of that frame. The wetness
of the bottom and the
was another factor into it.

Q.

Was this a regular travel way?

'I'HE WITNESS: That would have been their wa
side, as
call it.
call one side their
clearance side.

Q.

What I mean is this an area where the miners would
go through or·is it an area where it is visited
the examiner or if they had some work to do there?

THE WITNESS: The examiner and the guy assigned to
go through that area.

Q.

They do not have anybody permanently stationed at
this location?

THE WITNESS:
don't.

Q.

Would a miner walk back and forth through this
area where they were working and that sort of thing?
THE WITNESS:

Q.

To the best of my knowledge, they

No, sir.

How do
perform maintenance on this equipment
assuming if the mesh were up? Is this mesh permanent
installed to these wooden frameworks?

THE WITNESS: Generally it's set up so it could
be taken down and put right back up. Generally, the
rule is that before you take any guards down, they
have what they call japko switches along the beltline
and locked. The guards are removed and the cleaning
process is suppo3edly done there and the guard put
back on and then you lock it and put the power back
on.

222,,

Q.

You were the resident inspector at this point
for approximately five or six months?
THE WITNESS:

Q.

Did you have occasion to look at the other ten
similar belt mechanisms that were guarded?
THE WITNESS:

Q.

Yes, sir.

Are you familiar with the
everything?
THE WITNESS:

Q.

Yes, sir.

process and

Yes, I would say so.

Did you have occasion to cite them for cleaning
without locking out the equipment? What has
been the general practice of the mine, for example,
when
perform maintenance on these moving
parts?

THE WITNESS: The maintenance that was observed
over that period was fine. They did lock it out.
They took on the precautionary work when they was in
there doing work. The actual cleaning around the
belt drive itself, I could not see that. I seen
them cleaning around the belt but not along the drive:

Q.

What cleaning would be done around the particular
drive that was not guarded, in your opinion?

THE WITNESS: A lot of times you have spillage
coming back from the bottom belt, particularly where
you would have a scraper in between those two drive
rollers. It does collect a lot of dirt at times.

Q.

What is the procedure there for cleaning that
particular location? What do they do with that
material? Would you say the fellow who is cleaning
would be in close proximity?

THE WITNESS: If he has it shut off, he has to move
the guard and put the
back up and shovel it out
the belt. That is the practice I would observe.
And, at (TL 94-%):

Q.

If a fellow slipped and the outer guarding, the
posts, the bo3rds are four feet from the edge of the
equipment anu then there is another two feet, how
could he pJssibly fall there? It would have to be a
conscious act, wouldn't it?

THE WITNESS: I have problems with what you are
saying. You are using the four feet. The two foot was
right close to the rollers. I'm saying the two foot.
The four feet is the widest part. The two feet is the
closest to the roller.

Q.

My question is addressed to the four feet. Is it
possible for someone to get into that unguarded
equipment if the guard is four feet away from it?

THE WITNESS: I believe the four foot where it was,
not really. The two foot area, yes, and there is a
picture showing where the two foot and the four feet are.

Q.

The existing posts were up to cover that entire
15 to 20 or 30 feet distance weren 1 t they?
THE WITNESS:

Q.

It included the wheel area?
THE WITNESS:

Q.

Yes.

Right.

If it is not likely that anybody would fall in there,
I just wonder why management decided to extend it
for 30 feet, why they put that framing up to
with.

THE WITNESS: It is a general practice. This is
how they guard. They extend it more distance than
need to, but that's the way to guard.
Mathies Coal Company's Testimony and Evidence Concerning Citation No. 1142336
Mathies Coal Company opted not to present any testimony in defense of
this citation, and counsel indicated during the course of the hearing that
he stood by his motion to dismiss this citation and he relied on his
arguments presented during the course of the hearing.
MSHA's Testimony and Evidence in Support of Citation No. 1142336
Inspector Wehr identified exhibit G-7 as a copy of the citation he
issued for an alleged violation of section 75.1105 for failure to properly
locate a battery charger away from air being coursed directly into the
!.eturn. The scoop in question was used to charge a scoop tractor which
was being used on the section. The scoop is usually charged for a couple
of hours each shift to keep it running, e:nd the scoop is normally used
two shtfts a day, although at times it is used on three shifts. The
scoop cannot be used whi.le it is being charged, arrd the purpose of the
section 75.1105 requirement that the air current used to ventilate the
battery charger be coursed directly into the return is to carry away
smoke in the event of a fire, or to carry off explosive hydrogen which
may be released during the bat
charging process (Tr. 99-105).

2229

Inspector Wehr identified exhibits G-8 as a sketch he drew depicting
where the battery charger was located when he observed it, and he stated
that it was located in the neutral intake entry next to the right return.
His attention was drawn to the charger when he came from the face area
and noticed a cable going through a wall over the track entry. He followed
the cable through two stopping man doors, and he found the cable plugged
in but with no power on it and the "breaker wasn't set up". He identified
the cable as the "dotted line'' on exhibit G-8. The cable was hung up
on well insulated roof and rib insulators from the charger to the belt
starter box or transformer
. 106). The battery charger was some 300
feet from the belt transformer, and the transformer is not normally used
as the source of power for the cable. The battery charger was not operating
at the time he observed it and there was no tag on the power plug. In
order to energize the battery charger it would have first been necessary
to
e the transformer belt starter box and a scoop tractor timing
switch would have had to be turned on. The power cable was hooked up
to the battery c
and it did pass through a proper fitting (Tr. 107111).

Mr. Wehr described the air flow over the battery
as it
existed at the time he cited the condition, and he indicated that in
the event of smoke coming from the battery charger, it would have been
directed to the wo
face or place, or both. He identified the return
entry on exhibit G-8, and he stated that the air could have been directed
to the return by means of cracking a stopping door in conjunction
the use of a check curtain, or the use of a deflector, which is normal at
the mine in question (Tr. 112-113). He also indicated that the chargers
are normally ventilated by means of a deflector check (Tr. 116). H~
stated that the hazard created by failing to route the ventilating air
current directly to the return, would t in eight people in the
section possibly being affected
smoke or hydrogen. They could be
asphyxiated in the event of a short circuit in the battery charger, and
the mine moisture or humidity would contribute to the possibility of
short circuiting (Tr. 119-120). He confirmed that he indicated on his
"inspector's statement", exhibit G-9, _that the likelihood of the battery
charger sitting in the middle of the entry where the air was not being
coursed to the return giving off hydrogen and causing it to be directed
to the face to be "probable"
• 123). He also indicated that the charger
plugs that go to the scoops looked like they had recently been used (Tr. 124).
On
Mr. Wehr confirmed that section 75.1105
requires an operator to vent the air current into the return when it
passes over a bat
charger-station, and he confirmed that a battery
charger is a moveable piece of equipment which may be moved during the
course of a mining operation. While it is being moved, he stated that
ic was not possible to ventilate the air current into the return and the
power c2ble would have to be disconnected when the unit is moved to a
new location. Mr. Wehr stated that when he looked at the battery
charger in question it did not appear to him that it was in the process
of being moved, and he saw no physical sign of it being moved at that
time (Tr. 128-129). He also indicated that when he asked the inspector

2230

escort Dunbar what the charger was doing in the middle of the entry,
Mr. Dunbar replied that he did not know but would talk to the section
foreman about it. Mr. Wehr also confirmed that his usual practice is
to look for an "out of service" tag on the cable, but saw no such tag
in this instance, and relied on Mr. Dunbar in determining whether the
charger was being moved (Tr. 130). He also indicated that while he
could have spoken with the section foreman or other crew members he did
not do so and relied on Mr. Dunbar. He denied that Mr. Dunbar told him
that thechargerwas in the process of being moved, and confirmed that
Mr. Dunbar only told him that he would find out (Tr. 132).
Mr. Wehr confirmed that the citation was issued 9:30 a.m., and the
miners on the section would have been there an hour or so before that
time.
He stated that if there were evidence that the battery charger
was in the process of being moved up or dragged up, the violation would
not have been issued (Tr. 133). He confirmed that the normal
in the mine is to locate the charger in the crosscut, but that in this
case it was located approximately in the middle of the entry (Tr. 133).
He assumed that the charger had been used on the immediate preceding shift,
but he spoke with no one on that shift or to the section foreman and he
explained his reason for not doing so by stating that he deals direc
with the inspector escort for information unless he has to go to others for
problems which may have occurred before, and he conceded that he was
not prevented from speaking to the miners (Tr. 135). He conceded that he
was not absolutely certain that the charger was used on the previous
shift, and he based his conclusion that it was not being moved on the
fact that he saw no physical evidence of any such move (Tr. 136).
Mr •. Wehr stated that .. he has previously observed hydrogen being
emitted during a battery charging process, stated the explosive range
of hydrogen, and indicated that he was present in another mine when another
MSHA inspector tested for explosive hydrogen.
He conceded that before
anyone could say that the presence of hydrogen is hazardous in such a
situation, one must know the amount that is present. He did not observe
any charging process in the instant case, and he conceded that he has
no evidence to substantiate any conclusion as to any hydrogen emission
hazard in this case or that an accident was "reasonably probable" or
that it would "probably occur" (Tr. 142). He also indicated that the
battery charger was provided with short circuit protection, but he did
not know whether it was operational because "you would have to tear
it apart" to determine this. However, even though the charger is not
permissible, as far as he knew there was nothing wrong with the unit
(Tr. 144). He also confirmed that the miners have preventive action
available which they can take in the event of smoke, and these included
use of their self-rescuer units and the intake escapeway, and he had no
reason to believe that the miners would not have used these measures
in the event of an accident (Tr. 145).

In response to bench questions, Mr. Wehr conceded that he made no
detailed examination of the battery charger and took no smoke tube readings
(Tr. 149-150). He als0 conceded that the operator was in
compliance with
I

223.i

the amount of air required to be on the section (Tr. 151). He assumed
that the charger would be used to charge the battery scoop, and he could
not recall what Mr. Dunbar told him when he came back after seeing the
section foreman (Tr. 153). Mr. Wehr was not sure whether he was present
when the condition was abated, and while his notes are silent on the
abatement, he believed the citation was abated by moving the charger
into the crosscut and putting a deflector on it (Tr. 154). He stated
that the charger is on skids, and that the usual method for moving it is
by use of the scoop bucket (Tr. 156).
Mathies Coal Company's Testimony and Evidence
supervisor, Mathies Mine, testified that he
accompanied the inspector during his inspection and he confirmed that
the battery charger was located at the place indicated
Mr. Wehr.
Mr. Dunbar testified that when Mr. Wehr asked for an explanation as to
the location of the charger, he (Dunbar) told the inspector that he did
not know but would ask the section foreman. The section foreman advised
Mr. Dunbar that the charger was not being used because a new power station
was under construction and that the charger would be relocated and would
not be used until this was done. Mr. Dunbar stated that when he advised
Mr. Wehr of this fact, Mr. Wehr told him that "the citation stands".
He confirmed that Mr. Wehr told him that the battery charger p
was not
deenergized and that it had the
on it
163-166).
Mr. Dunbar stated that even assuming that the charger were to be
used without the air being vented into the return, he still did not
believe that the citation was significant and substantial becauqe thf,
chargers are inspected weekly, and any defective ones are removed from
service. He indicated that the charger in question was in good condition,
and he also confirmed that in the event of an emergency, the men in the
section could use their self-rescuers as well as the designated escapeqay
(Tr. 166-168).
On
Mr. Dunbar testified that battery charging
stations have had no problems in the mine and stated that it was his
understanding that the previous shift had begun the erection of a new
charging station, and that this is the first step in the process of moving
the station. He confirmed that the charger in question was not enclosed
in a metal housing "station" when it was cited because it is a self-enclosed
unit with no need for an additional enclosure. He confirmed that the
metal housing could be begun without the necessity of moving the battery
charger (Tr. 171). He admitted that the charger was moved to the new
station immediately after the citation was issued (Tr. 176). The section
foreman in question was not available for testimony because he has been
laid off.

Fact of violation - Citation No. 1142336
The citation charges that the air current used to ventilate a
battery charger which the inspector found in the middle of an entry

223;~

was not coursed directly into the return.
30 CFR 75.1105, states as follows:

Mandatory safety standard

Underground transformer stations, batterycharging stations, substations, compressor
stations, shops, and permanent pumps shall be
housed in fireproof structures or areas. Air
current used to ventilate structures or areas
enclosing electrical installations shall be
coursed directly into the return. Other underground structures installed in a coal mine as
the Secretary may prescribe shall be of fireproof construction.
Mathies Coal Company 1 s counsel argued that MSHA did not prove that
the battery
cited by Inspector Wehr had been used to
any
during the time it was located in the middle of the entry
(Tr. 172-173). Counsel also asserted that the evidence establishes that
the battery charger was in the process of being moved at the time the
inspector observed it, and that no violation has therefore been established
(Tr. 17 3).
Upon consideration of all of the testimony and eviaence adduced
with regard to this citation, I conclude and find that MSHA has established
a violation of section 75.1105 by a preponderance of the evidence. Mathies
Coal has not rebutted the fact that at the time the inspector observed
the charging unit in question it was located in the middle of the neutral
intake entry, and the inspector's testimony establishes that the ventilation
system in place at the time was such as to cause the air currents passing
over the charging unit to be coursed back to the face area and not to
the return as required.
With regard to the assertion by Mathies Coal that the charger was
in the process of being moved, the fact is that at the time the unit
was observed by the inspector the unit had not been moved to its newly
located charging station. That was done after the citation was issued.
The inspector's attention was called to the
after he followed
the course of a power cable which had been hooked into a belt transformer
to the charger for a distance of some 300 feet and found it in the middle
of the entry. Although the charger was not in operation charging any
equipment at the time Mr. Wehr first observed it, the power cable was
hooked up, it was not
out as was the usual practice, and the
condition of the charger plugs which are normal
hooked into the scoop
while it is being charged led the inspector to believe that the
had recently been used. In addition, the inspector observed no evidence
that the unit w&s being moved, and it. was not equipped with a deflector
which is normally used to course the air into the return. Under all of
these circumstances, the inspector's belief that the charger had recent
been used was reasonable. Further, since the power cable was hooked
up to a power source and was not tagged out, and since there were no
other indications thac the charging unit was actually moved at the time

2233

Mr. Wehr observed it, the assertion by Mathies Coal that the unit "was
in the process of being moved" is rejected. Although it may be true that
the
was to move the charging unit once the new charging station
was completed, the fact is that the inspector saw no evidence of any such
move, and his conclusions to the contrary are supported by the record
evidence and testimony in this case. The citation IS AFFIRMED.
Significant and substantial
In addition to citing a violation of section 75.1105, the inspector
also concluded that the violation was "significant and subscantial",
and he marked the appropriate block on the citation form accordingly.
Mathies Coal challenges that finding.
In
v.
3 FMSHRC 822, issued on April 7, 1981, the Commission interpreted section
104(d) and set forth the test for determining whether a condition created
by a particular violation is of such a nature as could significt otly
and substantially contribute to the cause and effect of a mine ha~ard.
The National Gypsum case was a civil penalty proceeding concerning eleven
section 104(a) citations in which the inspectors marked the ns & S" block
on the face of each citation. In t_hat case the Commission held that a
violation is "significant and substantial" if
based upon the particular facts surrounding that
violation, there exists a reasonable likelihood
that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.
On the facts of this case, I cannot conclude that the conditions
cited by Inspector Wehr constituted a significant and substantial
violation of section 75.1105. Although Mr. Wehr alluded to certain
general hazards connected with the failure to vent air coursed over
a battery charger unit into the return, in the case at hand the evidence
is clear that no such hazards existed. Mr. Wehr made no tests to detect
the presence of ari.y noxious gasses, he confirmed that the proper amount
of air was present on the section, the power cable leading to the charger
was hung on well insulated roof and rib insulators, no charging was taking
place at the time he observed the unit, the unit was provided with short
circuit protection, and Hr. wehr detected nothing wrong with the unit
itself. He also candidly conceded that before anyone can speculate as
to whether or not the presence of hydrogen, which is sometimes given
off when battery chargers are used, can cause an accident, there must
be some indications as to the amounts given off, and he conceded that
in this case there is no evidence that hazardous hydrogen was present
0·1.:

that an accident ·wa.s reasonably probable.

MiDe safety supervisor Dunbar testified that all bat
chargers
inspected we':!kly and that any which are found defective are removed
from service. He indicated that the unit in question was in good condition,
and he confirmed that miners could use their self-rescuers and the
designated escapeway in the event of any emergencies.
:;i.rp_

223 1
1

Given all of the prevailing circumstances, I conclude and find
that MSHA has not established that the conditions at the time the citation
issued were significant and substantial, and the inspector's finding
in this regard IS VACATED.

Although I have found that the battery charger violation was not
significant and substantial, I nonetheless conclude and find that it
was serious. While the prevailing conditions at the time of the citation
may not have presented a significantly hazardous situation, leaving the
battery charger in the middle of the entry hooked into a power source
without the air deflectors presented a potential temptation for someone
to engage the equipment and attempt to charge a scoop before the-battery
charger was actually placed into the completed charging station.

This citation charges Mathies Coal with a failure to adequately
guard the drive head on a conveyor belt. The cited mandatory safety
standard, section 75.1722(a), provides as follows:
(a) Gears; sprockets; chains; drive, head,
tail, and takeup pulleys; flywheels; couplings,
shafts; sawblades; fan inlets; and similar exposed
moving machine parts which may be contacted by
persons, and which may cause injury to persons
shall be guarded .
. At the conclusion of the inspector's testimony concerning the citation,
Mathies Coal moved to dismiss his finding that the citation ~as 11 significant
and substantial 11 • In support of this motion, counsel asserted that Inspector
Wehr only testified that an injury could be fatal, but did not testify
·that an injury was "reasonably likely to occur" as required by the decision
in the National Gypsum case (Tr. 39). When asked whether his motion to
dismiss also included an assertion that MSHA had filed to establish a prima
facie case concerning the fact of violation, counsel stated in pertinent
part as follows (Tr. 40):
I am not going to argue that. Draw whatever
inference you wish about that. I am arguing
specifically S & S.
During further colloquy counsel conceded that the issues
"significant. and substantial" and whether or not. a. vioia.ti~~ of the cited
mandatory standard has been proved are separate issues for which separate
findings may be made, and counsel indicated that his motion to dismiss
the "S & S" finding is based on a lack of evidence to support the inspector's
conclusion in this regard (Tr. 43-44).

In further argument in support of his motion, Mathies' counsel
stated that there is no testimony from the inspector as to whether how
likely it would be for an injury to occur, but that if the question were
put to him, he might testify that it is highly unlikely that an injury
would occur under the factors that he did testify to (Tr. 48). When
invited by the Court to put that question to the inspector during his
cross-examination, counsel stated that he would not cross-examine the
inspector (Tr. 48).
, MSHA 1 s
In response to the motion to dismiss the "S & S"
counsel asserted that it is not necessary to elicit
testimony
from the inspector that the "reasonable likelihood of
been met. Counsel argued that the inspector made that finding when he
issued the citation and marked the citation form "S & S". Further,
counsel asserted that it is for the Judge to determine from the facts
presented in this case whether or not the
test has been
met. Counsel asserted further that the inspector testified as to the
frequency of employee exposure to the hazard, the likelihood of the injury,
and the fact that he believed that the incline and wet floor increased
the possib
of someone slipping or falling into the guard
and
making
contact with the moving parts of the drive head. As for the
"could be fatal" testimony by the inspector, MSHA's counsel stated that
this has nothing to do with the "likelihood of an accident", but rather,
goes to the seriousness of any
ury. Given the facts of this case,
counsel concludes that if an accident were to occur, it would be reasonably
serious (Tr. 44-47). Concluding her arguments, counsel asserted as
follows (Tr. 51):
HISS GISMONDI: Apparently what Mr. Palmer is
saying, because in
of the fact that the
witness testified to the underlying facts,
because it did not come out of his mouth,
the ultimate
conclusion is that it is
not sufficient. It is my position that it is
the witness's role to testify to the facts and
the Court's role to determine the legal conclusion
of whether or not those facts support a finding
of a reasonable likelihood of that of an accident
occurring.
After due consideration of the argument presented by. counsel, the
motion to dismiss the "S & S" finding, as well as the citation, was denied
from the bench (Tr. 55-56).
Mathies Coal declined to put on any evidence in defense of the
inspector's assertion that the belt drive head was not adequately
guarded. In support of the c:i.tation, MSHA 1 s counsel asserted that the
guard which was in place "allows pretty easy access to the moving parts
of the drive head by vlrtue of the size of the openings, as well as
the relatively flimsy construction of the posts and boards that were used

2238

as part of the guarding structure" (Tr. 83).
In further support of the
inspector's "S & S" findings, MSHA's counsel argued that two employees
are in the general area in close proximity to the belt drive head on
a daily basis, that the mine floor was wet and muddy, and that the belt
was at the top of an incline, and that it was foreseeable that someone
in the course of his normal job duties would make contact with the moving
parts in question (Tr. 83).
In commenting on MSHA's position, Mathies Coal's counsel pointed
out that Mr. Wehr's "inspector's statement" contains no information
concerning the inclined roadway or wet conditions, and that MSHA's
testimony does not elaborate on the fact that the drive head in question
was protected by a guard provided by the manufacturer
. 86-87).
It seems obvious to me from the facts of this case that at the time
the citation was issued Mathies Coal was in the process of erect
wire
mesh guarding for the cited piece of equipment.
The conveyor belt had
recently been installed and at the time the inspector was on the scene
a framework of posts and wooden planks were in place and provided some
means of protection for the belt drive head in question.
Similar equipment
at other locations in the mine were already guarded by pract
identical systems of posts, wooden frames, and wires mesh.
Therefore,
the question presented is whether the posts and planks which were in place
at the time the citation issued provided adequate guarding as
section 75.1722(a).
Inspector Wehr testified that at the time the citation was issued
the belt was in operation and the moving parts of the drive head in
question were in motion. Although the drive head was partially protected
by the existing guarding system framework, the inspector's concern was
over the fact that the large openings in the framework provided
access to the exposed moving parts of the belt head drive. Although
Mr. Wehr conceded that a built-in guard was installed on the conveyor
to protect the gear sprocket and drive head chain, he indicated that his
principal concern was with the belt lacing and two drive rollers which
he believed were totally unprotected. Although he conceded that one of
the unguarded rollers was at a distance of four feet or more from the
machine frame and existing guarding, and that it was unlikely that
anyone would contact that point, he also indicated that at a second
unguarded location the distance from the existing guarding to the unprotected
roller was only two feet, and that if anyone happened to fall at that
area they could easily reach the unguarded belt drive rollers and lacing.
I conclude and find that MSHA has established a violation of section
75.1722(a), by a preponderance of the evidence. Although the 1:onditions
cited are mitigated by the fact that an existing semblence of a guarding
system was in place :i.t the time the inspector viewed the conditions,
the fact is thnt i.n at: least one location where the distance from the
unguarded pinch ~oint to the existing guarding framework was two feet, the
opening which was unguarded was sufficient
large enough to permit son~one
to fall in and reach the pinch poinc. While I reject MSHA' s notion

223 ';

that the existing guarding framework was 11 flimsy", it seems clear to me
that the wire meshing which is obviously nailed over the framework was
not yet in place, and the existing openings were
enough to permit
contact with the belt rollers. To that extent, MSHA has established
a violation, and the citation is therefore AFFIRMED.
Significant and substantial
On the
of this case, I conclude and find that MSHA has established
that the conditions cited by the inspector constituted a significant
and substantial violation of section 75.1722(a). HSHA established by
credible evidence that the belt was in operation at the time the inspector
viewed the conditions, and that at least two people were normally in
the area during the course of any work shift. Although it is true that
most of the belt drive location was
by posts and wooden
the actual wire mesh which the operator normally used to
such belt
drive locations had not as yet been installed at the time of the inspection,
and at least one of the unguarded locations was two feet from the belt
rollers and lacing. I conclude that this location was not adequately
guarded to prevent anyone from coming into contact with the moving parts,
and to that extent the violation is significant and subsLantial,
the inspector's finding in this regard IS AFFIRMED.
Gravity
I conclude and find that the failure to completely guard the cited
conveyor belt drive head constitutesd a serious violation, particularly
at the one location where the pinch point was some two feet from the edge
of the open guarding framework.
Negligence
I conclude and find that both citations which have been affirmed
resulted from Mathies Coal Company's failure to take reasonable care to
prevent the conditions cited by the inspector in these proceedings.
With regard to the guarding citation, since the operator here went to
the trouble of erecting a guarding system framework, it seems obvious
to me that it was aware that the belt head drive location required guarding.
As for the bat
charger, I believe that a closer attention or examination
to the area where the charger was found by the inspector would have alerted
the operator to the existence of the cited conditions, thus enabling
the operator to at least tag out the charger until such time as the
asserted move was completed. I find that both citations resulted from
ordinary negligence.
Good Faith_Compliance
With regal'.'d to the guarding citation, the inspector testified that
abatement was achieved within the time allowed, and that he considered
this to be ordinary good faith abatament (Tr. 85-86).

2233

With regard to the battery charger violation, the evidence
establishes that the charger was moved into the charging station and
that a deflector was installed on the unit to course the air into the
return. It would appear that all of this was done in good faith and
there is no evidence to the contrary. Accordingly, I conclude that
good faith abatement was timely achieved by the operator in this case.
Abilitv to Continue Business
The parties stipulated that the payment of the proposed civil
will not adversely affect the company 1 s ab
to remain in
business, and I adopt this as my finding on this issue. Further, the
stipulated mine production of 73,000 tons for the period January 1, 1982
to May 21, 1982, leads me to conclude that the mine in question is a
medium-to-large sized operation, and I take note of the fact that mine
production apparently ceased on
31, 1982.
History of Prior Violations
MSHA 1 s Exhibit G-10, purports to be a computer print-out submitted
by its counsel by letter dated September 21, 1982. The letter states
that for the 24 month period preceding the issuance of the citatio~s in
issue in this case the Mathies Mine had 890 paid violations, 17 of which
are for prior violations of section 75.1722(a), and 13 of which are for
violations of section 1105.
At the time of hearing, MSHA's counsel did not have the co~put~F
print·-out, and she was permitted to file it post-hearing. However, I
note that the print-out submitted by counsel appears to be a partial
listing, since the itemized citations contained on the three pages reflect
a total of 141 violations, some of which are for violations subsequent
to the dates of the citations in issue here. In addition, while the
print-out contains a "certification" by someone from MSHA's Office of
Assessments attesting to the authenticity of the print-out, the printout itself contains no mine identification data to support the claim that
it is in fact the data from the subject mine.
Since the information submitted by MSHA purporting to show the
history of prior violations is confusing and incomprehensible, IT IS
REJECTED. Insofar as this item is concerned, since I cannot understand
it, I will not consider it.
Penalty Assessments
In view of the foregoing findings and conclusions, respondent is
asseEsed civil penalties fo:c the two violations which have been af firm~d
as fo:.J ows:

2239

30 CFR Section

Citation No.
1142336
1142337

9/22/81
0/22/81

75.1105
75.1722(a)

$300
225
$525

ORDER
Respondent IS ORDERED to pay the civil penalties assesseq in this
matter, in the amounts shown above, within thirty (30) days of the date
of these decisions, and upon receipt of payment by MSHA these proceedings
are dismissed.

~

A,JA,

~~Kout~~
Administrative Law Judge

Distribution:
Jerry F. Palmer, Esq., Consolidation Coal Co., Consol Plaza, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)
Janine C. Gismondi, Esq., U.S. Department of Labor, Office of t9e S~licitor,
3535 Narket St., Philadelphia, PA 19104 (Certified Mail)
Harrison B. Combs, Esq., UMWA, 900 15th St., NW, Washington, DC 20005
(Certified Mail)

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

22041

(703) 756-6210/11/12

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

Civil Penalty Proceeding
Docket No. WEST 80-457-M
A.O. No. 35-02479-05002
Tide Creek Pit

JOHN PETERSEN, d/b/a TIDE
CREEK ROCK PRODUCTS,
Respondent

DECISION
Appearances:

Faye Von Wrangel, Attorney, U.S. Department of Labor,
Seattle, Washington, for the petitioner; Agnes Marie
Petersen, Esquire, St. Helens, Oregon, for the respondent.

Before:

Judge Koutras

This is a civil penalty proceeding initiated by the petitioner
against the respondent pursuant to section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820(a),, seeking a civil penalty
assessment for six alleged violations of certain mandatory safety standards
found in Part 56, Title 30, Code of Federal Regulations. Respondent
filed a timely answer and notice of contest and a hearing was convened
in Portland, Oregon, October 27, 1982. The parties appeared and participated
fully therein, and they waived the filing of posthearing proposed findings
and conclusions. However, I have considered the arguments advanced
by the parties in support of their respective cases during the course
of the hearing in this matter, as well as respondent's arguments set forth
in its trial memorandum submitted at the hearing.
Appl icabl·e Sta tu to ry and Regula t()_EY. Provis ions
1. The Federal Mine Safety and Health Act cf l(J77, Pub. L. 95-164,
30 u.s.c. § 8~1
~~.9..,
2.

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

3.

Commission Rules, 30 C.F.R. §' 2700.l et

2241

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 penalties
filed in this case, and, if so, (2) the appropriate civil penalty
that should be assessed against the respondent for the alleged violations
based upon the criteria set f.()_:t::th
s.ect.:L.o.n llO(i) of the ... Act. Additional
issues raised are identified and disposed of where appropriate in the
course of this decision.
In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:
(1) the operator's history of previous violations, (2) the appropriateness
of such penalty to the size of the business of the operator, (3) whether
the operator was negligent, (4) the effect on the operator's ability to
continue in business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the operator in attempting to achieve rapid
compliance after notification of the violation.

The parties stipulated to the admissibility of exhibits C-1 and C-3
through C-6. Respondent objected to photographic exhibit C-2 is that it
purports to show an acetylene bottle, whereas the citation cited oxygen
bottles (Tr. 10-11). The parties also stipulated to the admissibility
of respondent's exhibits R-1 through R-4 (Tr. 15), and that cit?tion no.
349567 may be amended to reflect the correct standard.
Respondent's request for a visit to the mine site was brought
to my attention for the first time on the day of the hearing. In view
of my trial docket which called for me to travel to Medford, Oregon, on
the afternoon of the conclusion of the hearing in this case respondent's
counsel was advised that I would not be able to visit the mine site as
requested since time would not permit (Tr. 114).
Discussion
The citations issued in this case are as follows:
Citation No. 349567, (as amended) May 8, 1980, 30 CFR 56.15-2:
The owner, John Peterson and also the truck
driver were not wearing hard hats around
the plant area.
Citation No. 349568, May 8, 1980, 30 CFR 56.16-5:
3 Oxygen bottles were in the plant area and
were not secured in any way. Two were lying
on the ground, one was leaning against the
frame work of a conveyor belt.

2242

Citation No. 349569, May 8, 1980, 30 CFR 56.14-3:
The self cleaning tail pulley on the conveyor
belt to the storage hopper was not completely
guarded.
The pulley was approximately 5 feet
above ground level.
Employees were occasionally
in the area when the ... plant was operating.
Citation No. 349570, May 8, 1980, 30 CFR 56.15-4:
The owner was breaking a rock in the jaw crusher
with a sledge hammer without any eye protection
to prevent injury to his eyes from flying rock
particles.
Citation No. 349571, May 8, 1980, 30 CFR 56.14-3:
The V-belt drive on the Rolls crusher was not
The belt was approximately
completely guarded.
5 feet above ground level.
Citation No. 349572, May 8, 1980, 30 CFR 56.14-3:
The V-belt drive on the small Jaw crusher was
not completely guarded.
Employees were
occasionally in the area while the plant was
in operation.
Petitioner's testimonv and evidence
MSHA Inspector Patrick Bodah testified as to his background and
duties, and he confirmed that he conducted an inspection as the respondent's
mine site on May 8, 1980. He indicated that he had inspected the site
on several previous occasions, and that he knew the owner John Petersen.
On May 8th he met Mr. Petersen at the mine and he accompanied him during
his inspection rounds. Mr. Bodah described the mining operation as a
rock crushing operation, and the
"plant" comprised approximately 1/2
acre of ground, and he considered this to be a small operation. There
were approximately three people in addition to Mr. Petersen working there
when he inspected it, and he indicated that the entire operation could
be viewed from one location (Tr. 16-20).
With regard to his citation for failure to wear hard hats, Mr. Bodah
that he issued it because Mr. Petersen was not wearing a hard
ha~ when he met him, and he did not have one on during the inspection
rounds.
In addition, a truck driver near the crusher loading hopper was
not wearing a hard hat when he got out of his truck during the loading
process. Mr. Petersen performed work breaking up a large rock and he
was not wearing a hard hat.
The truck driver was out of his truck and
around the loading area without a hat on. Mr. Bodah believed that the
hazards involved in not having a hard hat on were being struck en the
head by falling objects or rocks or running into, or bumping into, low
c~nfirmed

2243

overhead beams. The plant belts and crushers were in operation and they
were located above the truck driver's head, and he would be subjected
to being struck by falling rocks. He indicated that occasionally, a
large rock will pop out of a crusher. Mr. Petersen was in the crusher
area and he would be subjected to the same hazards. Mr. Bodah discussed
the matter with Mr. Petersen, and Mr. Petersen indicated that he instructed
his employees to wear hard hats, but that he personally would not wear
one (Tr. 20-24).
Mr. Bodah identified exhibit C-1 as a photograph of the unsecured
oxygen bottles which he cited. He observed them to the left side of the jaw
crusher area as he walked from his automobile, and while his recollection
was not clear, he believed that one was lying on the ground and the other
was leaning against something. He considered the unsecured bottles to be
a hazard because "oxygen bottles are under high pressure; and if a truck
should run over one or if something should fall on one and knock the
neck out of it, it becomes sort of a missile. It can do a lot of damage" 11
(Tr. 25). MSHA's counsel withdrew the photograph after conceding that
the bottles depicted therein were in fact acetylene bottles (Tr. 28).
However< the inspector clarified the matter by stating that the oxygen
bottles were compressed gas and that the standard cited deals with
compressed and liquid gas (Tr. 28).
Mr. Bodah identified exhibit C-3 as a photograph of the self cleaning
tail pulley which he cited, and indicated that it was located on the
rubberized conveyor belt to the storage hopper. He believed that the
unguarded tail pulley was an area which would be accessible to anyone
wandering around the plant, and that it would have been easily contacted
by a person who could catch clothing or an. arm in the unguarded.area. He
and Mr. Petersen were in the area during their inspection rounds. He
drew a circle on the exhibit depicting the unguarded area, and he indicated
that it was four and one-half-to-five feet off the ground (Tr. 31). He
discussed the condition with Mr. Petersen, and Mr. Petersen cleaned the
area out under the tail pulley and this made it inaccessible. That is,
by cleaning out the area, the ground level was lowered to a distance
of seven feet from the unguarded pulley, and it placed it at a point
where it could not accidently be contacted (Tr. 31).
With regard to the safety glasses citation, Mr. Bodah confirmed
that he issued that citation after he observed Mr. Petersen break a
rock with a sledge hammer without using safety glasses. The rock would
not go through the crusher, and that is why Mr. Petersen broke it up
with the hammer. However, by doing so, he exposed himself to a hazard
of being struck in the eye or head from flying chips of rock or steel
from the hammer. He discussed that condition with Mr. Petersen, and
glasses were provided for ''whoever was breaking rocks'' (Tr. 33-34).
Mr. Bodah identified exhibit C-4 as a photograph of the V-belt
drive for the rolls crusher, placed an arrow where he believed a pinch
point existed, and he indicated that the lack of a guard over the pinch

2244

point presented a hazard in that someone could get caught between the
pulley and the belt. He and Mr. Petersen were in the area, and the
unguarded area was approximately five feet above ground level. He
discussed the matter with Mr. Petersen, and Mr. Petersen cleaned the
area below the V-belt drive by removing rock which had spilled, and this
made the drive inaccessible. After it was cleaned up, the area from the
ground to the drive was seven or eight feet (Tr. 35-36).
Mr. Bodah identified exhibit C-5 as a photograph of the V-belt
drive for the small jaw crusher, and he cited it because it was only
partially guarded. The belt was located on an elevated work platform
near where the plant operator works and he believed it was accessible
to anybody in the area. The drive was about a foot and one-half
above the platform level, and he believed that one could suffer severed
or broken fingers if he came in contact with the partially guarded belt
drive. He drew an arrow on the exhibit showing the partially guarded
area which concerned him, and he indicated that access to the V-be t
drive was from both sides. He discussed this citation with Mr. Petersen,
and Mr. Petersen erected a barrier to prevent access to the unguarded
belt
. 38-39).
Respondent's counsel declined to cross-examine Inspector Bodah,
However, in response to questions from the bench, he confirmed that he
did not make any actual determination that the oxygen bottles which he
cited were full or empty. Although he accepted Mr. Petersen's word that
they were empty, Mr. Bodah. stated "they're never empty. There's
always pressure in one.'' (Tr. 40). The normal procedure for storing
such bottles is to chain or fastened them in an upright position so
can not tip. The bottles are normally used for cutting and welding,
and when they are used for this purpose they are at the work site, but
Mr. Bodah could not state whether the area where he observed the bottles
was a regular storage
(Tr. 42).
Regarding the unguarded self-cleaning tail pulley, exhibit C-3,
Mr. Bodah confirmed that it was partly guarded by the sides of the conveyor
frame. He also confirmed that the rock spillage had gradually built up
under the machine to the point where the ground was elevated and
the pulley area five feet from the top of the rock spi
pile. Had
the spillage not been there, the pulley would not have been accessible
to anyone walking on the spillage, and he would not have issued a citation.
He believed that anyone walking along the spillage to clean up or to grease
the equipment would likely pass through the area (Tr. 45).
Mr. Bodah stated that the crusher was not running when Xr. Petersen
the large rock without wearing safety glasses. The rock would not
gc through the crusher, and the operator shut the machine down so that
Mr Petersen -:ould break the rock up. Mr. Bodah could not re'..:alJ whether
Hr, J'etersen had
glasses on his person, hut he did confirm that
hP did have tnem on when he broke up the rock (Tr. 47).
~roke

2245

With respect to the hard hat citation, Mr. Bodah indicated that he
issued the citation because Mr. Petersen would not wear a hat during
the walk-around with him on the inspection. Hard hats were available
at the site, but Mr. Petersen told him it was his policy that employees
must wear them, but that he does not have to. Mr. Bodah stated that
Mr. Petersen is at the plant site most of the time, and in response to
a question as to what he would do if I were to go to the site for a "view"
and was not furnished a hard hat while on the premises, he replied "if the
plant were running and you did not have a hard hat on, I would cite
Mr. Petersen for allowing you on the property without a hard hat" (Tr. 50).
With regard to the truck driver, Mr. Bodah indicated that he is not
required to wear a hat while in the truck because he has overhead
protection, but that once he leaves the truck he has to wear his hard
hat (Tr. 51). However, he stated that the driver has to operate the gate
to let the material out of the hopper and into the truck (Tr. 51).
Mr. Bodah confirmed that while the standard states that hard hats
should be worn to protect one from falling objects, he was equally concerned
over the possibility that Mr. Petersen could strike his head while going
under low areas, and his concern about being struck from objects was
based on "danger from a rock flying from the pressure_part of the operation
through the air, and occasionally rather
rocks do become airborne"
(Tr. 52).

With respect to the partially guarded rolls crusher, Mr. Bodah
confirmed that the crusher is mounted on a trailer, and when not actually
operating the equipment, the driver would probably be assigned clean-up
chores and shovelling would be done while the equipment was sti:j.l in_.
operation. The most likely accident would occur if someone were to stumble
near the pinch point and reach out and grab for the V-belt (Tr. 54).
As for the small jaw crusher, exhibit C-5, while the operator would
normally be stationed away from the machine while it was operating, he
could walk right up to it from the adjacent walkway to grease or clean-up,
and he believed the platform was provided to facilitate ready access
to the equipment (Tr. 56). Had the spillage not been present, he would
have considered the self-cleaning pulley and V-belt drive to be "guarded
by location" since they would have been seven feet off the ground and
out of the reach of anyone, and the citations would not have been issued
(Tr. 56).

John A. Petersen, the mine operator, identified exhibit R-1 as a
photograph of the switch panel where one stands to operate the entire
plant. He identified an overhead tin roof, and he indicated that when
the plant is running there is no need for anyone to be around any of the
~onveyors or belts.
The operator's control panel is elevated some seven
feet off the ground, and the unguarded jaw crusher V-be1t shown in exhibit
C-5 is on the ground level below the operator and some 8 to 10 feet
behind him. The only time anyone walks by the belt is to get to the
elevated panel to turn the crusher on, and to come h~ck down after it is
turned off, and the area is some 60 feet ·from where the truck is located
(Tr. 91-92). The self-cleaning tail pulley shown in exhibit C-3 is about
15 feet from the truck (Tr. 92).

2218

Mr. Petersen stated that the circle-drawn
tor Bodah on
the photographic exhibit C-3, reflecting the
ion of the self-cleaning
tail
which he believed was unguarded is inacurrate. Mr. Petersen
indicatedthat the area circled by the inspector is in fact the back end
of the frame from which the conveyor is hung. Mr. Petersen indicated
that the actual tail pulley in question is 12 inches in diameter and that
it is located higher up on the photograph. The conveyor and pulley run
up a very
hopper, and the tr~ck and driver are positioned to the
side of the hopper as shown in photographic exhibit R-2 (Tr. 92-94).
Mr. Petersen stated that the truck driver would be under the hopper
conveyor belt, and while the largest stone on the belt would be a half-inch
in diameter, the conveyor itself is "a tro
, and that would be the
only means of keeping rocks from
off the conveyor. He did not
believe that the driver could be struck by any rock because any spillage
would occur at the back of the belt where the truck driver has no business
. 95-96). With regard to his hard hat, Mr. Petersen stated
that when he is operating the "cat" he is protected by an overhead canopy,
and the only time he would leave the "cat" would be to break the rocks if
the crusher were broken down or
up (Tr. 96).
With
to the rolls crusher shown in exhibit C-4, Mr. Petersen
stated that water and mud is under the
of equipment and someone
would have a difficult time reaching the
area which was cited
(Tr. 96). Mr. Petersen confirmed that he has had no on-the-job injuries
since he has operated the business (Tr. 99). He also indicated that when
he was breaking the rocks with a hammer, he was using a flat, double-ended
"rock hammer" and not a sledge hammer, and in the 10 years he h?s us~ed
such a hammer to break rocks he has never suffered an eye injury from
rock (Tr. 99). He considers himself to be skilled in the use
of such a hammer, and he believed that the use of safety glasses would
not have made his operation any safer
if you beat on the rocks
right, you don't get chunks in your face"
100). When asked "how
do you know that?", he replied ''from
a sledge hammer and having them
hit you in the legs and everywhere" (Tr. 100). He also indicated that
company policy dictates that he is the only one who is to break rocks
with the hammer, and none of his employees have ever had an on-the-job
injury (Tr. 101).
Mr. Petersen testified further that he advised Inspector Bodah that
the oxygen bottles which he cited were empty, but that Mr. Bodah indicated
that it didn't make any difference whether they were empty or full
(Tr. 102, 106), and that they had to be secured. Mr. Petersen conceded
that the bottles would be hazardous
they were full, but: he knew. -of
no danger if they are empty. He also indicated that someone would have
to "kick it pretty hard to tip it over" (Tr. 106).

Petitioner argued that it has established jurisdiction in this case,
and that it is clear from the testimony of Mr. Petersen that his crushed

rock product is used to build city, county, and State roads, all of
which are instrumentalities of commerce.
In addition, petitioner states
that most of Mr. Petersen's equipment was produced outside of the State
of
, and that it is clear that at the time of the
tion, as
well as in 1980, ::Ir. Petersen was operating a crushed stone operation
employing himself, family members, and other emp
As for the fact
of violations, petitioner asserted that the test
and evidence
adduced at the
establishes that the conditions and practices
observed by the inspector at the time the citations were issued establishes
each o the cited violations (T~. 10~~111).

Respondent's counsel opted to rest on her arguments made in her
Trial Hemorandurn filed at the
(Tr. 111). The memorandum is a
part of the record in this case, and the arguments presented therein
have been considered by me in the course of this decision.
In her trial memorandum, counsel asserts that "(u]nder Title 43,
Section 4.1155, the burden of proof in civil penalty pro
is upon
OSM to
fon.;ard to establish a
facie case and the ultimate burden
of persuasion as to the fact of
violation and as to the amount of anv
claimed pena ty.
believes that the burden is one of
a reasonable doubt since this is a quasi-criminal proceedings and what
is sought is a fine"
. 6, Memorandum).
Respondent had previously argued that these proceedings were criminal
in nature, and counsel had also requested attorney's fees.
These a~guments
were
ected in my
rulings made on August 20, 1981, and served
on the parties. My reasons in this regard were·stated in those rulings,
which are a part of the record in this case, and they are reaffirmed.
Respondent's request for attorney fees is denied, and her arguments concerning
the "burden of proof" are likewise rejected.
As pointed out to counsel during the hearing, the references to
"OSM" and the regulations issued thereunder are not applicable in these
proceedings.
The Office of Surface Mining (OSM) is an agency of the
U.S. Department of the Interior, and not the U.S. Department of Labor
which has enforcement jurisdiction under the Act in issue in these pro
M?HA's mandatory safety and health standards, and the applicable civil
penalty procedures are found in Title 30, Code of Federal
tions.
Further, the applicable Commission Rules of Procedure are found in Title 29,
Code of Federal Regulations, Part 2700, ~
, 44 Fed.
38226,
June 29, 1979. A Judge's decision with respect to the asserted violations
in cases of this type is determined by a preponderance of all of the reliable,
credible, and probative testimony and ~vidence of record, and the
Commission 1 s stanJards for discretionary review of a Judge's ded.::>ion are
detai.led at 29 CFR 2700.70.
Respondent's defenses to each of the citations are discussed
and disposed of in my findings and conclusions concerning each of the
cited violations.

2248

Findings and Conclusions
Jurisdiction
t 1 s initial answer to MSHA's proposals for assessment
ties denied that the respondent's crushed stone operation
was subject to the Act or to MSHA's enforcement jurisdiction.
the course of the hearing, respondent's position had not
on this
iss-1:1e and counsel asserted that HSHA-mustestablish that the operation
is subject to the Act (Tr. 59).
MSHA's counsel confirmed that Mr. Petersen's operation had an HSILI\.
Mine ID" number, and she indicated that the production tons or man
hours per year are shown as 6,000 (Tr. 62). Counsel confirmed that
Mr. Petersen must have filed an MHSA "legal identity
as
the
ions since he has never been cited for failure to file such
a form
11

tor Bodah testified that the crushed rock is trucked from
the storage area at the mine to customers who may want to
e it.
He believed that the crushed rock is used for road base, concrete rock,
fill, or for dra
rock. He confirmed that he does not
t the
site when its not in operation, could not recall how many previous times
he
ted it, and indicated that in addition to Mr. Petersen and his
son, three other
were working at the site when he
ted
it (Tr. 57).
tor Bodah disagreed with the respondent's assertion that
his operation is not subject to the Act. He maintained that "we've
been
t
them for quite some time, and they're a
product that enters into interstate commerce" (Tr. 59).
this conclusion
his observing the trucks hauling the crushed rock off
the mine property, and this indicated to him "he's
that rock to
somebody 11
•
60). Mr. Bodah also indicated that the mine site is located
in Columbia County, Tide Creek, Oregon, but he did not know whether the
rock is ac
shipped out of the state (Tr. 60). He believed that all
crushing operations are considered under MSHA's jurisdiction.
John A. Petersen was called as a witness by the petitioner, and he
confirmed that he is the president and owner of the controlling interest
in Tide Creek Rock Products, Incorporated. The other stockholders are
his wife and counsel Agnes Petersen, and his mother-in-law. He described
the size of his rock product as ranging from a half-inch to three and a
half-inches, and the raw materials are obtained from a hill located adjacent
co the
"
The hill is leased, but he owns all of the plant equipment and machinery. The actual worksite,
the hill, the storage
stockpile, and the plant encompasses an area of an acre and one half (Tr. 65-68).
Hr. Petersen confirmed that at the time of the inspection in 1980,
he and two of his sons were working at the
He would occasionally

2248

hire other people to help out, but he was operating the "Cat" and his
son was driving a truck. Mr. Petersen could not estimate his annual
dollar sales volume in 1980, and he indicated that in 1980 he operated
"a third of the year" (Tr. 70). Since that time, the plant has been
in operation less time, and he confirmed that the only product he
produces is rocks of varying sizes. During 1980, he sold the rock primarily
to St. Helens Paving, and the product was used to pave streets and highways,
including county, city, and state highways, and driveways (Tr. 71).
Other customers would "come and go, different ones at different times 11 ,
but he could not recall the names of any of them. His primary employment
at that time was with his company (Tr. 72).
With regard to his equipment, Mr. Petersen stated that the truck
used to haul his product was manufactured by "Peterbuilt Truck", and
while he did not know where it was manufactured, he believed it was the
State of Washington. The 11 Cat" or Caterpillar was produced in Illinois,
and the jaw crusher was manufactured in Cedar Rapids, Iowa (Tr. 87-89).
On the basis of the foregoing testimony and evidence adduced here,
it seems clear to me that respondent's strip mining operation is subject
to the Act, as well as to MSHA's enforcement jurisdiction. Respondent's
sales of rock products, as well as the use of equipment manufactured out
of State, certainly affects commerce within the meaning of the jurisdictional
language of the Act. Accordingly, its arguments to the contrary are
rejected.
Failure to secure compressed and liquid gas cylinders - Citation 349568
30 CFR 56.16-5, provides as follows:
Compressed and liquid gas cylinders shall be
secured in a safe manner.
Respondent takes the position that the cited compressed gas cylinders
were empty and that the petitioner offered no credible proof that they
were full or unsafe at the location where they were found.
Section 56.16-5 requires that compressed and liquid gas cylinders be
secured in a safe manner. Petitioner has established that the cylinders
in question were not secured, and that one was standing upright and the
other was lying on the ground. Respondent does not dispute this fact,
and takes the additional position that there is no "safety advantage to
hanging up an empty oxygen bottle". The standard cited makes no distinction
between full or empty cylinders, and respondent's defense on this ground
:i.s rejected. Respondent's arguments go more to the seriousness or grcwi.ty
or the violation, rather than to an absolute defense to the cited
standard. Acl'.ordingly, this citation TS AFFIRHED.

The inspector failed to determine whether the cited cylinders were
full or empty. I accept Mr. Petersen's testimony that they were in

2250

fact empty. Mr. Petersen conceded that the bottles were simply placed
outside the shop area some 15 feet away while awaiting to be taken to
town to be refilled, and while he also conceded that employees walked
by the area, I cannot conclude or find that the bottles posed any real
hazard.
The bottles which were filled and in use in the shop were
apparently secured since Mr. Petersen indicated that they were in fact
chained up when in use.
I conclude and find that this citation was
nonserious.
Failure to Wear suitable hard hats - Citation 349567

30 CFR 56.15-2, provides as follows:
All persons shall wear suitable hard hats when
in or around a mine or plant where falling objects
may create a hazard.
As I observed during the course of the hearing, the language of
the "hard hat" standard does not state "All persons whall wear suitable
hard hats when in or around a mine or plant". A condition precedent
to the requirement that a hard hat be worn is a finding that falling
objects may creata a hazard.
Respondent argues that the language of the
standard is not intended to guard against one bumping his head against
a low beam or piece of equipment.
Insofar as any "falling objects"
are concerned, counsel argues that when the inspector arrived at the
scene, Mr. Petersen has just finished doing some work in the caterpillar
pushing rocks from the hill into the chute below it, and while engaged
in this activity he was fully protected by the machine overhead canopy.
This being the case, counsel argued that there was no possibility or likelihood
of his b2ing struck by a falling object.
Counsel advanced this·same'
argument in defense of the failure by the truck driver to have his hard
hat on, and also made the additional argument that no rocks ever fall
out of the overhead conveyor where the truck was located.
Inspector Bodah indicated that when he came on the property Mr. Petersen
was not wearing a hard hat, that he refused to wear one during the entire
inspection, and was not wearing one when he broke up the rock which had
jammed in the crusher.
As for the truck driver, Hr. Bodah indicated
that the truck driver was out of his truck, was around the hopper loading
area, and that his job was to open the hopper chute to allow the rock
materials to load onto the truck. He also indicated that rocks have on
occasion been propelled from the crusher, or they could fall out of the
overhead conveyor belt leading up into the hopper.
While it may be true that one is not expected or required to wear
a hard hat while inside a vehicle which has an overhead cab or canopy,
the truck driver was not in his vehicle at the time the inspector observed
him ~t or near the overhead conveyor belt.
Since the driver's duties
include activating the chute which opens the hopper and loads the truck,
I believe there is a strong possibility that the driver could be struck
by overhead rocks falling out of the chute, off the truck, or being

2251.

propelled out of the hopper itself. Respondent's assertions that events
like this never occur are rejected, and 1 conclude that the failure by
the truck driv~r to have his hard hat on constituted a violation of the
cited standard and IT IS AFFIRMED.
With regard to Mr. Petersen's failure to wear a hard hat, even though
he may have been protected while in the cab of the cat, his routine
practice and refusal to wear a hard hat at all times while working around
the plant also constitutes a violation of the hard hat requirement.
Respondent has not established that there are never any falling objects
such as rocks or other materials or equipment at the plant, and the
petitioner's evidence establishes that there is a potential for the rocks
to fall from overhead conveyors. While one may agree that the language
of the standard is inartfully drawn, on the facts here presented Mr. Petersen 1 s
refusal to ever wear a hard hat while the plant is in operation constituted
a violation of section 56.15-2. Although the inspector could have cited
two separate citations for Mr. Petersen and the truck driver, he opted to
incorporate both incidents into one citation, and I see nothing improper
with this procedure.

I conclude that the failure by Mr. Petersen and the truck driver
in question to wear their hard hats while in and about the plant area
while the equipment was in operation was serious. The truck driver is
close to the overhead conveyor when he activates the lever or mechanism
forcing the coal into the hopper, and it is possible for him to be struck
by rocks falling out of the conveyor. As for Mr. Petersen, whila it
may be true that he was protected while under the cab of the equipment
he was operating, there is no assurance that he is always protected while
walking and working around the plant.

30 CFR 56.15-4, provides as follows:
All persons shall wear safety glasses, goggles or
face shields or other suitable protective devices
when in or around an area of a mine or plant where
a hazard exists which could cause injury to unprotected
eyes.
Respondent's defense to the safety glasses citation rests on its
assertion that Mr. Petersen has worked for 30 years in dangerous occupations,
10 years of which have been spent breaking up rocks with an appropriate
rock hammer that is specifically designed to prevent splintering, and
in all of this time he has never suffered any eye or other injuries.
Further, counsel pointed to the fact that Mr. Petersen never allows
other employees to break rocks, and that the likelihood that safety
glasses would have improved safety is very remote. Counsel also asserted
that the law clearly requires more for the meaning of the word "could"
as used in the standard.

There
no <l1Jes.tion but that Mr.. Pet:ersen-w-as·· not wearing any eye
protection at the time Inspector Bodah observed him breaking up the rock
which had jammed in the crusher. In my view, the fact that Mr. Petersen
is experienced ·at breaking rocks, used the proper tooi for that purpose,
and instructed his employees that he was the only one to break rocks,
does not establish an absolute defense to the citation, and counsel's
interpretation as to the application of the use of the word "could" is
rejected. While Mr. Petersen's safety record is commendable, I for one
would not like to see his luck run out. In my view, there is
a chance that the most experienced miner in the world will be
his failure to completely protect himself. Here, Mr. Petersen
that when he used a sledge hammer in the past, flying rocks often struck
him in the
I realize he said that to justify his use of a flat
but one mis-strike of that hammer, just as one slip of a
scapel in the hands of a skilled surgeon, could prove disastrous. This
citation IS AFFIRMED.
Gravity
Although the use of a flat-headed rock hammer in the hands of
a skilled and experienced miner may mitigate the seriousness of any
hazard, on the facts of this case, I conclude that the citation was serious.
At the time of the citation, Mr. Petersen had in his emp
two of his
young sons who helped out at the plant, and Mr. Petersen was not always
present when work had to be performed, and I am sure he is not present
every time the crusher jammed. In these circumstances, even though he
ordered no one else to break up rock, I believe that it was reasonable
to assume that someone could follow his example and attempt to br~ak up
a jammed rock in his absence, thereby exposing themselves to a possible
eye inJury. Mr. Petersen's practice and routine breaking up of rocks
without wearing safety glasses is just as serious as the actual act which
the inspector observed at the time the citation issued.
Failure to completely guard the storage hopper se~f-cleaning conveyor belt
tail pulley - Citation 349569; the rolls crusher V-belt drive - Citation
349571; and the jaw crusher V-belt drive - Citation 349572.
30 CFR 56.14-3, provides as follows:
Guards at conveyor-drive, conveyor-head, and conveyortail pulleys shall extend a distance sufficient to
prevent a person from accidentally reaching behind the
guard and becoming caught bewteen the belt and the
pulley.
Respordent's defense to the self-cleaning conveyor belt citation
is that sL1ce it is 5 or 6 feet from the ground and no one .is around it
when it is running, there is no way anyone can accidently reach behind
the guard and become caught between the belt and the pulley. Respondent
points out that when the conveyor is running the closest person to it

2253

is 10 to 15 feet away, that the placement of the belt is too high
for any orie to ltaccidentally reach behind it", and any injury at the
cited location would have to be done deliberately and intentionally.
With regard to the crusher V-belt drive citation, respondent
maintains that the equipment is so high above the ground level and
surrounded by a "thigh deep moat and about 2 or 3 feet of mud and water",
that a fool would have to wade out and jump or reach very high
even
get to the location in questioh~ R~ipondent conciud~s t6at there is
no way anyone could accidentally get
ured at the cited location.
Respondent's defense to the jaw crusher V-belt citation is that the
piece of equipment is covered up, that the chain which the inspector
recommended be put up was meaningless, and that when the crusher is
running no employees are there.
Mr. Bodah believed that the guarding standard he cited
that partially guarded converyor pulleys be inaccessible, and since
the accumulated rock made them accessible, the standard was violated
(Tr. 44). In my view, the standard requires that
be extended a
sufficient distance to prevent a person from accidentally reaching behind
the guard and getting caught between the belt and the pulley. It seems
clear to me that any consideration of the standard must take into account
the question of whether the
is sufficient.
On the facts of this case, the determining factor in the mind of
the inspector as to whether the standard was violated is not whether
any existing guard was sufficient, but rather, whether or not the
terrain beneath the pulley was elevated enough to cause one to accidentally
reach into the pulley and injure himself. In short, the elevation
of the spillage in direct relationship to the overhead height of the
pulley is the determining factor, and this may change from day to day.
What is a safe distance on one day may not be the next. What is
"guarding by location" in one inspector's mind, may not be sufficient
for another inspector. In short, the regulatory language leads to some
highly subjective judgment calls by an inspector.
It seems to me that if MSHA's intent in promulgating the standard
is to prevent and preclude accidents in connection with unguarded or
partially guarded pulley pinch-points, then it should seriously consider
amending its standards to require all such areas to be guarded without
qualification or any conditions precedent. The use of open-ended and
broad language such as that found in section 56.14-1 through 56.14-3,
i.e., "may be contactedlt, "sufficient distance", "accidentally reaching",
results in some rather strained interpretations, and I sympathize with
inspector's who have to grapple with the guarding standards, and with
the solicitor's who have to defend the numerous guarding citations issued
under these sections.

225d

Inspector Bodah conceded that the self-cleaning belt tail
pulley and rolls crusher V-belt drive pulley would normally be guarded
by location sin.ce they were approximately seven feet above ground level
and out .of the reach of anyone. The basis for the citations was his
concern that rock spillage in and around the area beneath the pulley locations
raised the level of the ground to a point which would bring anyone walking
on. the ..sP:illage directly under the pulleys· into close proximity or reach
of the pinch points which were partially guarded. Mr. Bodah indicated
that someone would normally walk across the "flattened out" spillage
since the area "was the means of access to get inside the plant area"
(Tr. 45). The gradual spillage elevated the area to a point at approximately
four and a half to five feet below the overhead pulleys, and Mr. Bodah
was concerned that someone walking through the area to grease the equipment
or to clean up could stumble, and if he did, he would somehow instinct
reach out for something, and he knows of instances where someone reached out
for a V-belt (Tr. 54).
In this case, the respondent has established to my satisfaction
that when the equipment is running each employee is assigned to a
location to keep the 11 plant" moving. The "plant" includes a hopper, a
crusher, a truck, a stockpile, and a hill from where the raw rocks are
taken. I simply can find no support for the proposition that when everything is moving, someone will leave their assigned work station, walk
over a two or three foot mound of rocks under an overhead pulley and
attempt to grease that machine. Neither can I believe that in this same
scenario, someone will take a shovel and start shovelling rocks while he
is supposed to.be. <3.1:: hi.s normal duty station. In. the instant case, ·since
the rock spillage obviouslj accumulated over a long period of time, no
one had been in the area cleaning up. Further, one of the elevated
pulleys is self-cleaning, and there is no indication that anyone had to
go into that equipment to clean it. In addition, Mr. Bodah candidly
conceded that if there are any equipment problems the plant is shut down
(Tr. 4 7).
I accept Mr. Petersen's testimony that the actual location of the
storage hopper self-cleaning tail pulley was at a point higher on
photographic exhibit C-3, than that stated by Mr. Bodah. The area circled
by Mr. Bodah is the frame from which the conveyor hangs, and the actual
pulley area in question is higher up and behind the tail pulley shaft
as shown in the photograph. Having viewed the photograph and after careful
consideration of all of the testimony in this case, I cannot conclude
that the alleged insufficiently guarded tail pulley in question was located
in such a position where anyone could accidentally reach in and become
entangled in the pulley. Of course, if someone deliberately jumped up
and reached into the area, or placed a ladder against the conveyor frame
and •:limbed up and stuck their hand in the pulley, they would undoubtedly
be irjured. If that is the type of situation MSHA is attempting to guard
against, then they should say so in clear and precise regulatory language.
Citation No. 349569 IS VACATED.

2255

Although Mr. Bodah indicated that the jaw crusher operator could walk
up to the V-belt for greasing and clean-up, the fact is he really did
not know that this was the case (Tr. 55). Mr. Bodah's testimony that
employees greas·e and clean-up around unguarded tail pulleys and pinchpoints must be taken in context. He suspected and speculated that an
would grease and clean-up around the V-belt because he observed
form around the equipment. Since he believed the platform was
for a specific purpose, he concluded that it was obviously used
to provide
access to the equipment, and this is a logical assumption
on his part. However, absent any credible evidence that the equipment
is in fact greased and cleaned while it is
, and absent any
evidence that any employee is required to be in close proximity to the
moving parts of the crusher as a routine normal
of his job, or that
miners
pass by the area, there is no support for me to make
any of these inferenceso As a matter of fact, abatement of this citation
was not achieved by placing a guard over the asserted pinch-point.
Mr. Petersen installed a chain or fence across the area away from the
pinch
Mr. Petersen's testimony is that the only time anyone goes to the
crusher
form area is when the equipment breaks down or plugs up, or
while
up and down while shutting the
down or turning
it on. The equipment is shut down when it is
up or broken down.
In addition, the crusher operator is at some distance from the actual
pinch point when he is running the crusher, and he is the only person
there. Further, Mr. Petersen's description of the area where the
asserted pinch-point was located, including the photographic exhibits,
leads me to conclude that one would have to make a deliberate and conscious
effort to first reach the area, and then
reach in and contact
the
guarded pinch point. Given these circumstances, I conclude
and find that the existing partial guarding was
enough to prevent
an accident, and that the petitioner has not established that the location
of the jaw crusher V-belt drive was such that a person could accidentally
reach in and get caught in the drive pulley.
, Citation No.
349572 IS VACATED.
With regard to the rolls crusher V-belt, Mr. Bodah first stated that
the
V-belt drive was unguarded, but that the pinch point which
concerned him most was where he drew in the arrow in the photographic
exhibit C-4 (Tr. 34). However, his citation reflects that the drive
"was not completely guarded", and his later testimony is that the pulley
area was partially guarded by frame on the backside of the machine (Tr. 52).
At first Mr. Bodah indicated that the truck driver may be assigned clean-up
duties when he is not driving his truck, and that ttusually they put them
here or doing some little repair work or whatever" (Tr. 43).
However, he later indicated that ttl don't know what Mr. Petersen's procedure
is which the truck driver" (Tr. 52). It seems to me that the best evidence
as to what the driver does when he is not
, is to
with him.
Mr. Bodah apparently did not do so. Therefore, absent any credible evidence
that the driver is near the pulley in question
clean-up duties
while the rolls crusher is in operation, I cannot conclude that the
unguarded area which concerned the inspector, as shown on photographic
exhibit C-4, was an area which posed a hazard in this case.

225t)

Respondent's arguments that the rolls crusher was surrounded by
"a moat of water" is an exaggeration. The testimony by Mr. Petersen
is that one wou;Ld have to "wade in water and mud up to your knee or
walk on a little berm of rock two or three feet high" to become tangled
up in the area which concerned Mr. Bodah. Mr. Petersen concluded that
one "would be a damn fool" to go into that area (Tr. 84).
On the basis of all of the facts and evidence adduced in this case,
I cannot conclude that the pinch point at the rear of the pulley shown

on exhibit C-4, constituted an area where someone could accidentally
reach in and become entangled. The facts show that no one is stationed
in that area, has no reason to be there, and the frame, wheels, and
machine confirugation, provide adequate protection. Citation No. 349571
IS VACATED.
;s

Although the respondent is obviously not too enchanted over the
prospect of paying civil penalties for conditions and
which he
abated, no evidence was forthcoming that the assessment and payment of
reasonable civil penalties for the citations which have been affirmed will
adversely affect his ability to continue in business.
, I
conclude and find that they will not.
The record in this case establishes that the respondent's rock
crushing operation is a very small family-owned operation, operating
more or less with three or four workers, and I have considered th~s in
the civil penalty assessments made by me for the citations.
Bistory of prior violation~
MSHA's computer print-out, exhibit C-6, reflects that for the period
May 8, 1978, to May 7, 1980, the mine had one assessed violation (Tr. 58).
Good faith comliance
Petitioner conceced that the respondent corrected all of the cited
conditions and acted in good faith in achieving compliance within the
time periods fixed by the inspector (Tr. 105), and I so find.

I find that all of the citations which have been affirmed in this
case resulted from the respondent's failure to exercise reasonable care
to prevent the conditions or practices which resulted in the issuance
of the citations. As the mine owner and operator, Mr. Petersen had an
obligation to be aware of the requirements of the standards cited, and
to prevent the conditions and practices cited. His failure to so constitutes
ordinary negligence as to each citation.

("~·;:-::·

h,._

I

,r

'\..)

Penalty Assessments
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
and find that the following civil penalty assessments are appropriate
for the citations which have been affirmed:

349567
349568
349570

5/8/80
5/8/80
5/8/80

30 CFR Section

Assessment

56.15-2
56.16-5
56.15-4

$

so

20
75
$ 145

ORDER
Respondent IS ORDERED to pay civil penalties in the amounts shown
above within thirty (30) days of the date of this decision and order,
and upon receipt of payment by the petitioner, this case is dismissed.

Administrative Law Judge
Distribution:
Faye von Wrangel, Esq., U.S. Department of Labor, Office of the Solicitor,
8003 F.O.B., Seattle, WA 98174 (Certified Mail)
Agnes Marie Petersen, Esq., Gray Bldg., 222 S. First St., St. Helens,
OR 79051 (Certified Mail)

2258

.FEDERAL Ml NE SAFE-TY-AN D-HEAl™-R-EV+EW COMMISS-lON
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLF.AX AVENUE, SUITE 400
DENVER. COLORADO

80204

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

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

v.

)
)

CIVIL PENALTY PROCEEDINGS

)

DOCKET NO. CENT 81-129-M
DOCKET NO. CENT 81-241-M

)
)
)

AMAX CHEMICAL CORPORATION,
Respondent,
UNITED STEELWORKERS OF AMERICA,
AUTHORIZED EMPLOYEE REPRESENTATIVE,
Intervenor.

MINE: Amax Mine & Mill

)
)
)
)
)

FINAL ORDER
CENT 81-129-M
On November 1, 1979 the Secretary issued Citation 161852 against
respondent AMAX Chemical Corporation, The citation, alleging a violation of
30 C.F.R. 57.5-5, provides as follows:
Condition or practice the Marretta Miner operator in the 110
mining sectio~ was exposed to a Time Weighted Average (TWA)
of 26.11 Mg/M of total particulate nuisance dust in a
dust survey taken on the 11-01-79 for a 8 hour survey. The
Threshold Limit Value (TLV) was 10 Mg/M 3 . Feasible enggineering controls were not being utilized to reduce this
dust concentration, to eliminate the need to wear respirators.
This citation was written on the 01-21-80 after dust results
were received from the analysis center in Denver, Colorado.
Several extensions of the citation were issued and the citation was
terminated on September 30, 1980.
On December 12, 1980 petitioner filed his proposed penalty assessment
and on February 4, 1981 Amax filed its notice of contest. Subsequently the
Secretary filed his complaint before the Commission.
CENT 81-241-M
On February 27, 1979 the Secretary issued Citation 161808 against
respondent Amax Chemical Corporation. The citation, alleging a violation of
30 C.F.R. 57.5-5 provides, as follows:
Condition or practice the slusher operator working in the
warehouse ar3a was exposed to a time weighted average (TWA)
of 39.9 Mg/M of total particulate bearing nuisance dust,
where as the Threshold Limit Value (TLV) is 10 Mg/M 3 •
Feasible engineering or/and administrative controls were not
being utilized to reduce this amount to acceptable standards
and eliminate the need to wear respirators. This citation
was written on the 04-11-79 at 0935 hours. The dust analysis
results were received on this date.

2259

Several extensions of the citati•rn were issued and on April 14, 1981
the citation was terminated.
On June 18, 1981 the Secretary filed his proposed penalty assessment
and on June 30, 1981 Amax filed its notice of contest. The Secretary
subsequently filed his complaint be fore the Commission.
Pursuant to Commission rule 29 C.F.R. 2700.12 the above cases were
consolidated.
The standard allegedly violated, 30 C.F.R, 57.5-5 provides as follows:
§

57.5 Air quality, ventilation, radiation, and physical agents,

57.5-5 Mandatory, Control of employee exposure to harmful
airborne contaminants shall be, insofar as feasible, by
prevention of contamination, removal by exhaust ventilation,
or by dilution with uncontaminated air. However, where accepted engineering control measures have not been developed
or when necessary by the nature of work involved (for example,
while establishing controls or occasional entry into hazardous
atmospheres to perform maintenance or investigation), employees
may work for reasonable periods of time in concentration of airborne contaminants exceeding permissible levels if they are protected by appropriate respiratory protective equipment. Whenever respiratory protective equipment is used a program for
selection, maintenance, training, fitting, supervision, cleaning, and use shall meet the following minimum requirements:
(a) Mine Safety and Health Administration approved respirators
which are applicable and suitable for the purpose intended
shall be furnished, and employees shall use the protective
equipment in accordance with training and instruction.
(b) A respirator program consistent with the requirement
of ANSI Z88.2-1969, published by the American National
Standards Institute and entitled "American National Standards
Practices for Respiratory Protection ANSI Z88.2-1969, approved August 11, 1969, which is hereby incorporated by reference and made a part hereof. This publication may be
obtained from the American National Standards Institute,
Inc., 1430 8roadway, New York, New York 10018, or may be examined in any Metal and Nonmetal Mine Health and Safety District
or Subdistrict Office of the Mine Safety and Health Administration.
(c) When respiratory protection is used in atmospheres immediately harmful to life, the presence of at least one other
person with backup equipment and rescue capability shall be
required in the event of failure of the respiratory equipment.

2260

On July 29, 1982 the United Steel.workers of America, (Steelworkers),
representatives of the miners at the ,\ffiax facility, sought to intervene as a
party.
On August 9, 1982 the Secretary moved to withdraw his complaints. In
support of his motion the Secretary stated that his citations were
previously vacated in accordance with MSHA policy memorandum No. 82-12MM
issued July 9, 1982.
On September 15, 1982; plirsuant fo Cornrnission Rule 29 C.F.R. § 2700.4,
the Steelworkers were permitted to intervene. The parties were further
invited to brief the issue of whether the Commission should grant the
Secretary's motion to withdraw his complaints.
The Steelworkers object on the grounds that the Act requires the
Connnission's approval for withdrawal of the citation (30 U,S.C, 820(k))
further, the Steelworkers argue that the policy relied on by the Secretary
is not a proper reason for dismissing these cases. Finally, the Steelworkers argue that the Secretary's enforcement policy is inconsistent with
the Act.
The Act expressly accords a miner several rights the exercise of which
will not subject him to discharge or discrimination. However, there is
nothing in the Act authorizing affected miners or their representatives the
right to prosecute a contested citation if the Secretary elects not to do
so. Cf Secretary v. Kocher Coal Company Penn 80-174-R, (December 8, 1982);
Marshall v. Occupational Safety & Health Review Commission et al 635 F 2d
544; Oil, Chemical and Atomic Workers International Union v. Occupational
Safety & Health Review Commission 671 F~ 2d 643 (1982). cert denied.
Accordingly, pursuant to Commission Rule 29 C.F.R.
the following:

§

2700.11, I enter

ORDER
1.

The motion of the Secretary to dismiss his complaints is granted.

2.

The cases are dismissed.

3.

The objections of the United Steelworkers of America are denied.

Law Judge

22Gl

Distribution:
Edward Fitch, Esq.
Office of the Solicitor
United States Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
Charles C. High, Jr., Esq.
Kemp, Smith, White, Duncan & Hammond
P.O. Drawer 2800
El Paso, Texas 79952
Mary Win-O'Brien, Esq.
United Steelworkers of America
Five Gateway Center
Pittsburgh, Pennsylvania 15222

1262

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

PRINCESS SUSAN COAL COMPANY,
Contestant

DEC 2 9 l

CONTEST OF CITATION

v.

Docket No. WEVA 79-423-R

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

Citation No. 0641203;
9/4/79
Campbells Creek Surf ace
Mine

ORDER OF DISMISSAL
Contestant requests approval to withdraw its Contest in
the captioned case.
Under the circurn tances herein, permis~
sion to withdraw is granted.
~
CFR §, 2700. lL
The case
U1erefore dismissed.

u

vl~

I

rative Law Judg.e
Distribution~

By certified
'

Leo McGinn, Esq., Office of the S licitor, p.s. Department
of Labor, 4015 Wilson Boulevard, ~rlington,\ VA 22203

.

l

\\

c. Lynch Christian, Esq., Princess' Susan c6.,cil Company
Jackson, Kelly, Holt & O'Farrell, P.O. Box 153, Charleston,
I

WV

25322

'

\/

,

*U.S. GOVERNMENT PRINTING OFFICE : 1983 0-381-638/4378

2266