sider the history of a previous violation in assessing a penalty for this second violation of section 305 (k).

I find that the violation occurred, that it was serious, and that the operator was negligent. A penalty of $25 will be assessed for this violation.

Notice No. 2 DCM 11/12/70 § 306 (b) (Automatic circuit breakers were not provided for the trailing cables of the cutting machine and loading machine.)

The inspector testified that he issued this notice because the operator was using a fuse instead of a dual element fuse or automatic circuit breaker as required by the Act. Automatic circuit breakers were hard to obtain at this time and Respondent's mine was closed on December 30, 1970, before this alleged violation was ever corrected (Tr. 28-30). The operator testified that he had tried to purchase automatic circuit breakers from Atlas Supply and Equipment Company in Clarksburg, West Virginia, and was told that they were unavailable (Tr. 137).

I find that the violation occurred. The fact that the operator was permitted to keep operating with fuses shows that the violation was not serious. The difficulty of obtaining the automatic circuit breakers shows that the operator was not negligent. A penalty of $5 will be assessed for this violation.

Notice No. 3 DCM 11/12/70 § 306 (d) (There were four and eight splices in the trailing cables of the

loading machine and cutting machine, respectively.)

The Act provides that only one temporary splice may be made in a trailing cable within a 24-hour period. When the inspector found four and eight temporary splices in the trailing cables to the loading machine and cutting machine, respectively, he issued the notice of violation. While the notice itself does not use the word "temporary," the inspector said he made it clear to the operator that except for one temporary splice in a 24-hour period, the Act requires permanent or vulcanized splices (Tr. 34). The inspector stated that it was difficult to obtain the equipment to make vulcanized splices at this time.

Respondent's counsel moved that the Bureau's Petition for Assessment of Civil Penalty be dismissed insofar as it sought assessment of a penalty for violation of section 306 (d) because the notice failed to state were involved. The operator testified specifically that temporary splices that he was aware that the notice was directed to the fact that his splices were of the temporary type prohibited by the Act (Tr. 153). Since the operator's own testimony shows that he fully understood the nature of the violation for which he was being cited when the notice was issued, counsel's motion to dismiss for failure of the inspector to use the word "temporary" in the notice is denied.

Respondent's counsel also moved that the Bureau's Petition be dismissed insofar as it relates to re

quests for assessment of penalties for violations of sections 306 (d) and 307 (b) of the Act because they were issued during the effectiveness of the Ratliff injunction as informational notices and carried notations on them assuring the operator that no penalties would be assessed because of the alleged violations cited in the notices. Counsel's argument is appealing at first impression, but examination of the factual situation existing at the time the notices were issued shows that the argument is not well founded.

The facts are that the inspector first noted violations of sections 306 (d) and 307 (b) on May 8, 1970. At that time he wrote "informational" notices, viz., Notice No. 5 DCM 5/8/70 § 306(d) and Notice No. 6 DCM 5/8/70 § 307 (b), stating that because of the Ratliff injunction, no penalty would be assessed (Tr. 7879). The inspector further explained that if the operator did not correct the violations noted in the informational notices, additional notices were thereafter issued making it clear that penalties would be assessed after materials and equipment required to abate the violations became available for purchase by the operator.

The informational notices, in such circumstances, did not prejudice the operator, but instead had the effect of giving him a period of

1 A. H. Ratliff, Jr., t/a Dilston Coal Company, et al. v. Walter J. Hickel, Secretary of the Interior, et al., Civil Action No. 70-C50-A. U.S. District Court for the Western District of Virginia, Orders issued April 23 and April 30, 1970.

time during which he could try to correct the violations before they were written as notices of violation which would involve assessment of civil penalties. The inspector's testimony at pages 87 and 88 of the transcript shows beyond any doubt that he would not have issued notices citing violations of sections 306 (d) and 307 (b) of the Act if the conditions which caused the writing of the informational notices had not continued to exist at the time the notices were written in a form requiring assessment of civil penalties. Therefore, Respondent's motions to dismiss the Bureau's Petition with respect to violations of sections 306 (d) and 307 (b) of the Act are denied.

I find that the violation of section

306(d) occurred. Since both the inspector and operator agreed that the temporary splices here involved were unusually well made and since the inspector allowed the operator to continue using the cutting and loading machines with a large number of temporary splices for about seven months before the mine was closed, the record will not support a finding that the violation was serious. The operator's alleged inability to procure vulcanizing equipment supports a finding that no negligence was involved. Therefore, a penalty of $5 will be assessed for this violation.

Notice No. 4 DCM 11/12/70 § 307 (b) (The metallic frames of the cutting machine and loading machine were not grounded.)

The inspector testified that the only wires connected to the cutting and loading machines were the positive and negative wires, whereas the Act requires that the frames of the machines be grounded so that if a wire becomes exposed, the frames of the machines will not become energized and create an electrical shock hazard. The inspector said that the cable required to ground the equipment was hard to obtain and the notice never was abated before the mine was closed on December 30, 1970 (Tr. 36-38; 72).

I find that the violation occurred. The granting of the extensions of time within which to comply will not support a finding that the violation was serious. The difficulty of being able to purchase the required cable supports a finding that the operator was not negligent. A penalty of $5 will be assessed for this violation.

Notice No. 1 DCM 11/13/70 $305 (g) (Due to defective light switches and wiring, the headlights were inoperative on the two batterypowered locomotives.)

The inspector testified that the headlights on the locomotives were inoperative because of defective wiring. He said that he thought this was a serious violation because it reduced the machine operator's ability to see and also it decreased the machine's visibility to those working in the mine. He said the operator was negligent in allowing this condition to exist (Tr. 39-40).

The operator testified that the machines had no defective wiring

on them whatsoever and that the sole cause of the headlights' breaking was that they were mounted so close to the floor of the mine that water would fly up on the hot surface of the headlights and cause them to burst. The violations were abated by moving the headlight mounts to the top of the locomotives so that water would not be as likely to hit them. Also the type of headlight was changed to a sealed unit which was less likely to break from exposure to water (Tr. 139– 140; 155-156).

I find that the violation occurred and that it was somewhat serious since lack of headlights increased the probability of an injury to miners working around the locomotives. The operator was negligent since his own testimony shows that when a headlight would become broken during a producing shift, the men would not take time out to replace the bulb (Tr. 161-162). Section 305 (g) clearly provides that "* * * When a potentially dangerous condition is found on electric equipment, such equipment shall be removed from service until such condition is corrected." Therefore, a penalty of $25 will be assessed for this violation.

Notice No. 3 DCM_11/13/70 § 317 (1) (Sanitary toilet facilities were not provided underground.)

The inspector issued this notice because sanitary toilet facilities. were not available at the mine, but he agreed that sanitary toilets were hard to obtain at the time he wrote the notice (Tr. 40). The operator

had been unable to purchase the sanitary toilets in Clarksburg (Tr. 140).

I find that the violation occurred, that it was nonserious, and that the operator was not negligent. A penalty of $1 will be assessed for this violation.

Notice No. 3 DCM 11/13/70 $317 (n) (Self-rescue devices were not provided for the underground employees.)

The inspector issued this notice because the men working underground did not have self-rescue devices. The men need these to protect them from carbon monoxide in the event a fire should occur in the mine. The inspector said that the self-rescuers were hard to obtain at this time (Tr. 40A-41). The operator testified that he had unsuccessfully tried to purchase selfrescuers in Clarksburg and Morgantown, West Virginia (Tr. 140).

I find that the violation occurred, that it was serious, and that the operator was not negligent. Despite the seriousness of the violation, it would be unfair to assess a large penalty for an item which was hard to obtain at this time. Therefore, a penalty of $5 will be assessed for this violation.

Notice No. 4 DCM 11/13/70 $317 (8) (Drinking water was not kept available underground.)

The inspector issued this notice because the operator did not keep a supply of water underground for use by the miners in an emergency. The inspector stated that the miners

had their own individual water in their dinner pails, but the Act requires that an adequate supply of water be "stored" underground in addition to that carried by the individual miners (Tr. 41-42).

The operator stated that there was a well at the portal of the mine and that the water had been tested and approved by the health department. He said that he had placed an order for a sanitary container for storage of water underground but that the order was never filled and the mine was closed before the container was obtained (Tr. 141-142; 157-158).

I find that the violation occurred, that it was not serious in a mine whose working faces were within. 100 feet of the surface, and that the operator was not negligent. A penalty of $5 will be assessed for this violation.

Notice No. 1 MM 12/16/70 § 303 (0) (A ventilation system and methane and dust control plan has not been submitted to the District Manager for approval.)

The inspector testified that this notice was issued after the subdistrict office at Mount Hope issued a list of mine operators who had not submitted ventilation system and methane and dust control plans for approval of the Bureau. His duty

was to visit the mines for which no plan had been received. The plans were required so that the Bureau could determine whether the ventilation systems in the mines were properly designed and were ade

quate for removal of methane and control of dust in the mines (Tr. 93-95). The operator submitted such a plan and it was approved by the Bureau in a letter to Respondent dated March 4, 1971 (Tr. 96). The inspector said that the failure to submit the plan was not serious so long as the mine actually had a satisfactory ventilation system. The inspector was unaware of any defects in Respondent's ventilation system at the time the notice was issued (Tr. 100).

I find that the violation occurred, that it was nonserious in the circumstances, and that the operator was not negligent since the inspector said that delays in submission of the plans were often caused by the backlog of work to be done by the engineers who prepared mine maps which were useful in submission of the plans. A penalty of $5 will be assessed for this violation. Notice No. 2 MM 12/16/70 § 303 (t) (A fan stoppage plan has not been submitted to the District Manager for approval.)

The inspector said that the subdistrict office at Mount Hope issued a list of mine operators who had not submitted the fan-stoppage plan. Among the mines which he was required to visit in connection with failure to submit the plan was Respondent's Mine No. 2. He did not think that failure to submit the plan was serious so long as the operator knew what to do and was prepared to take appropriate steps in the event the mine fan should stop. The inspector said he had no

reason to doubt that the operator in this instance would have withdrawn men from the mine if the mine fan had stopped and would have taken the required preliminary examinations before permitting men to reenter the mine following a fan stoppage (Tr. 95-99). The fanstoppage plan was submitted by the operator within three days after the notice was written (Tr. 101).

I find that the violation occurred. that it was nonserious, and that the operator was not negligent. A penalty of $5 will be assessed for this violation.

Summary of Assessments, Dismis

sal, and Conclusions of Law

On the basis of all the evidence of record and the foregoing findings of fact, the Respondent is assessed the following penalties: Notice No. 1 DCM 5/8/70 § 303