operator at its option and in no way affected its right to a public hearing; that a request by the operator for public hearing was not an appeal in any sense, but initiated instead a de novo proceeding before the Judge; that the Judge under the Act and the regulations was neither bound by nor did he consider the informal proposed assessments in arriving at his determination of the appropriate penalties to be paid; that the Judge gave due and careful consideration to his determinations; and that the facts of record support the conclusion that his decision was fair and reasonable.

Although we appreciate the frustrations expressed by Buffalo on this point, we find its argument fallacious, in that it is based on the false premise that the proceeding before the Judge was an appeal. MESA's analysis, that the proceeding before the Judge was de novo in nature, as distinguished from an appeal, is entirely correct and dispositive of this complaint. The regulations in effect at the time of the hearing so provided. This Board is bound to apply them and powerless to change them. We find no evidence in the record of vindictiveness against or intimidation of the operator by the Judge.

Buffalo also complains that the Judge seems to have placed some duty on the operator to supply information as to the effect any penalties imposed may have on the operator's ability to continue in business,

30 CFR 100.5(b), 37 F.R. 11460 (June 8, 1972).

and, likewise, as to the appropriateness of such penalties to the size of the operator's business. Buffalo contends that the Act places no such burden on a mine operator and neither the Secretary nor an administrative tribunal has the authority to do so.

These are factors required to be considered under section 109 (a) of the Act in fixing the amount of the penalty after it has been determined that a violation occurred. Therefore, as we indicated in Hall Coal Company, 1 IBMA 175, 179, 79 I.D. 668, 672, CCH Employment Safety and Health Guide par. 15,380 (1972), an operator should be given the opportunity to present information on the effect a mandatory penalty will have on its ability to continue in business; but, if it chooses not to do so, the Judge may indulge in a legal presumption that there will be no adverse effect, where such information is peculiarly within the possession of the operator. This is an entirely different proposition from Buffalo's contention that an unlawful burden is placed upon the operator. The operator is in no way compelled to furnish the information, but, if it chooses to assert that the penalty involved will adversely affect its ability to continue in business, it should have the opportunity, and should come forward to provide the necessary proof on this criterion.

We reaffirm the existence of the legal presumption expressed in the Hall decision, supra. When the Judge does utilize such presumption, however, he should make a spe

cific finding based thereon. The Judge erred in this respect in these proceedings. We believe that the record here supports such a finding.

The appropriateness of the penalty to the size of the business of the operator charged is another matter. MESA urges that a similar legal presumption should pertain with respect to this criterion. We do not agree. The size of the operator's business (the mine or mines involved) can be readily ascertained by MESA from reports which are or could be required under section 111 of the Act. Furthermore, a federal mine inspector should have little trouble preparing testimony as to the size of the business of the operator of any mine which he inspects. At least, he should be able to adduce enough facts to enable the Judge to determine whether such business fits into a "small," "medium," or "large" category as compared to the size of the business of other operators. This should be sufficient for appropriate consideration of this factor required by section 109 (a)(1) of the Act.

A third general complaint by Buffalo is that the Judge erred in failing to expressly state the reason or basis for rejection of each of the proposed findings and conclusions submitted by Buffalo. It is contended that the language employed in the Order of the Judge's Decision, "that all proposed findings and conclusions inconsistent with this Decision . . . are Rejected," is insufficient compliance with that

part of 5 U.S.C. § 557 (c) which provides:

The record shall show the ruling on each finding, conclusion, or exception presented *

We see no reason to depart from the well-established case construction of this provision of the Administrative Procedure Act (APA). The specific requirement of 5 U.S.C. § 557 (c), that the record shall show the ruling on each finding, conclusion, or exception presented, can be satisfied without a specific separate ruling on each proposed finding, conclusion, or exception; provided, the total decision sufficiently informs a party of the disposition of all its proposed findings and conclusions or exceptions.10 Consequently, we dismiss this general complaint insofar as it is premised on an erroneous interpretation of the APA as indicated above.

In the next part of this discussion, under Complaints as to Specific Alleged Violations, we shall determine whether the Judge's total decision sufficiently apprised Buffalo of the disposition of its proposed Findings and Conclusions regarding specific alleged violations. We note, however, that Buffalo's proposed findings and conclusions were confined to but seven of the ten

10 North American Van Lines, Inc. v. United States, 217 F.Supp. 837 (D.C., Ind., 1963); NLRB v. Wichita Television Corp., 277 F.2d 579 (10th Cir. 1960), cert. denied, 364 U.S. 871; NLRB v. Sharples Chemicals, 209 F.2d 645 (6th Cir. 1954); NLRB v. State Center Warehouse and Cold Storage Co., 193 F.2d 156 (9th Cir. 1951).

notices of violations involved in these appeals.11

The last general complaint made by Buffalo deals with the sufficiency of the Judge's Findings of Fact, Conclusions of Law, and reasons therefor, as required by 5 U.S.C. § 557 (c). Our disposition of this complaint will likewise be encompassed in the following discussion of the complaints pertaining to the specific notices of violation.

Complaints as to Specific Alleged

Violations

At the outset, we note that the Judge failed to make express findings of fact in considering the amount of the ten assessments with respect to the following criteria: history of previous violations, size of the operator's business, and effect of the penalty on the operator's ability to continue in business. The duty then falls upon this Board to make such findings insofar as the record supplies the supporting evidence.

(1) Inasmuch as the record does not show any history of previous violations, we find that there was no history of previous violations to be considered with respect to the assessments involved in these cases.

(2) The record discloses that the No. 5 Mine, involved in IBMA 7318, Docket No. HOPE 72-81-P, employed 40 men on the day shift (Tr.

11 Buffalo made no specific proposed findings or conclusions, so far as we could ascertain from the record, with respect to the following three notices: 3 OS 2/26/71 and 3 OS 3/18/71 in Docket No. 72-81-P; and 2 OS 3/12/71 in Docket No. 72-65-P.

179) and the No. 8 mine involved in the other cases, employed about 95 men and produced approximately 1,300 tons of coal per day (Tr. 613). It is also undisputed, and we take official notice, that Buffalo is a wholly owned subsidiary of the Pittston Coal Company, one of the largest coal producers in the United States. Therefore, we find that the size of the operator's business with respect to the mines here involved, is sufficient to justify the amounts of the civil penalties assessed.

(3) No specific evidence appearing in the record regarding the effect of any penalties on the operator's ability to continue in business, a legal presumption exists that none of the penalties here involved will adversely affect Buffalo's ability to so continue. Therefore, based upon that presumption, we find that none of the penalties here involved will adversely affect Buffalo's ability

to continue in business.

We now turn to the review and disposition of the specific assessments and findings made for each of the ten alleged violations with respect to the fact of the violation, and the three remaining statutory criteria.

IBMA 73-18, Docket No. HOPE 72-81-P.

Notice 3 OS, February 26, 1971, charged Buffalo with the violation of 30 CFR 75.517, in that a "bare power wire was not insulated for a distance of about 700 feet along the No. 2 strip coal conveyor belt." The safety standard contained in the

subject regulation is identical with section 305 (1) of the Act which provides:

Power wires and cables, except trolley wires, trolley feeder wires, and bare signal wires, shall be insulated adequately and fully protected.

The Judge's finding that this alleged violation occurred is supported by the evidence (Tr. 25). However, Buffalo's complaint is well taken as to the sufficiency of the Judge's findings with regard to the statutory criteria to be considered in fixing the amount of the penalty. No specific findings were made as to negligence, gravity and the good faith of the operator to achieve rapid compliance after notice of the violation.

The evidence adduced shows that the energized bare wire could have caused a mine fire by coming into contact with combustible material (Tr. 26, 42, 43) and could have caused an electrocution (Tr. 39); and that the exposure could have been prevented by installing insulated power wire in the first place or by insulating the bare wire at the time of installation (Tr. 26). In view of this evidence, we find that the violation was grave and that the operator did not exercise due care in the course of installing the wire and was, therefore, negligent.

The testimony of the government's witness, the mine inspector, was that the operator showed good faith in achieving rapid compliance after notice of violation and within the time fixed for abatement as extended (Tr. 26 and 27). However,

it appears that the Judge ignored this testimony (Decision 3, hereinafter, Dec. 3) and though not expressly finding bad faith, impliedly so found by finding "that respondent could have insulated the wire. within the time [originally] fixed." Our review indicates that the preponderance of the evidence clearly shows that the operator did exercise good faith in achieving rapid compliance, and we so find. Therefore, we conclude that the assessment of $500 for this violation should be mitigated to $400.

Notice No. 4 OS, 2/26/71, charges Buffalo with a violation of 30 CFR 75.1003 in that "Trolley wires at two track switches near the tipple headhouse were not guarded." The Judge found that: the violation occurred; that there was good faith compliance after notice; and that the violation was serious, but he didn't know how serious. He implied, but didn't expressly find, that the operator was negligent. The penalty assessed was $100.

We find that Buffalo's contention that the notice failed to allege a violation of a mandatory safety standard and that the evidence adduced failed to established a violation, is without merit.12 However, we also find that the total evidence in the record establishes that Buffalo was not negligent and that the gravity

12 See Eastern Associated Coal Corporation, 1 IBMA 233 at 235, 79 I.D. 723, 726, CCH Employment Safety and Health Guide par. 15,388 (1972). In that case the Board held as a general proposition that "where an alleged violation is sufficiently described to permit abatement, adequate notice of the condition is established."

of the violation was minimal. (Tr. 57-61.) Therefore, we conclude that this assessment should be reduced from $100 to $50.

Notice Nos. 5 OS, 2/26/71, 6 OS, 2/26/71, and 2 OS, 3/1/71, respectively charged Buffalo with the following violations:

30 CFR 75.1100-2(b) and (c). Firefighting equipment was inadequate because water cars or waterlines with appropriate outlet valves and fittings and 500 feet of firehose with proper fittings at strategic locations were not installed along the conveyor belt.

30 CFR 75.1101. Deluge-type sprays or foam generators, automatically actuated by a rise in temperature, or other no less effective means to control fires, were not installed at the main and secondary belt conveyor drives.

30 CFR 75.1714. Self-rescue devices adequate to protect the miners for one hour or longer were not provided for ten underground miners.

There is no dispute that the condition or practices described in the above notices existed at the time of the inspection; however, Buffalo contends that no violations properly should have been charged and no assessments made because the required equipment to abate was unavailable for purchase.

Our review of the evidence on this point indicates that Oscar Stiltner, the mine inspector who issued the above notices, testified with respect to Notice No. 5 OS, 2/26/71, that: (1) in his opinion the operator could have done nothing about the condition constituting the violation because "the material wasn't available"; (2) this firefighting

equipment, at that time, was not available for the industry as a whole some were able to get some of it along gradually; and (3) that he had personal knowledge that this material was hard to get hold of at that particular time. (Tr. 70, 71, 72.) The inspector also testified that the outlet valves and firehose for the belt conveyor were not available for purchase at the time of the inspection (Tr. 90). The unavailability of this equipment was further corroborated by the testimony of Mario Varrassi, Safety Director for Buffalo. (Tr. 208.) The inspector similarly testified that the required equipment was not available with respect to Notice Nos. 6 OS, 2/26/71, (Tr. 99) and 2 OS, 3/1/71 (Tr. 108). On the face of the latter Notice of Violation. (Exhibit, P-14), the inspector wrote the following notation: "A Directive was issued May 11, 1970, at which time the material needed to comply was not available."

Despite the foregoing evidence, the Judge stated with respect to 5 OS, 2/26/71, at page 7 of his decision (Dec. 7), "I think the evidence indicates that Respondent either did not place its equipment orders early enough or did not diligently pursue the fulfillment of such orders." He found with respect to 6 OS, 2/26/71, that "appropriate deluge-type water sprays or foam generators were not present as required; *** that Respondent could have taken corrective action before the notice of violation was issued"; (Dec. 9)