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September 20, 1973

** *.13 With respect to 2 OS, exists therein which have not yet re3/1/71, the Judge concluded that sulted in an imminent danger, (B) that the Respondent (Buffalo) “has not

such conditions cannot be effectively

abated through the use of existing techmet its burden of proving that it

nology, and (C) that reasonable assurcould not have had available to it

ance cannot be provided that the conat the time of the inspection the tinuance of mining operations under equipment and material required to

such conditions will not result in an im

minent danger, he shall determine the avoid the violation.” (Dec. 16.)

area throughout which such conditions We must disagree with the Judge exist, and thereupon issue a notice to the in his finding in light of this evi- operator of the mine or his agent of such dence. The total evidence in our view conditions, and shall file a copy thereof, clearly supports a conclusion that

incorporating his findings therein, with

the Secretary and with the representathe operator reasonably could not

tive of the miners of such mine. Upon be expected to do a useless and fu

receipt of such copy, the Secretary shall tile thing—that is, place orders

cause such further investigation to be for equipment knowing it was not made as he deems appropriate, including available. All of the evidence in this an opportunity for the operator or a

representative of the miners to present record, mostly supplied by the Gov

information relating to such notice. ernment's own witness, clearly leads

(2) Upon the conclusion of such into a finding of fact that the equip- vestigation and an opportunity for a ment required for compliance with public hearing upon request by any interthe safety standards cited in the

ested party, the Secretary shall make

findings of fact, and shall by decision three foregoing notices simply was

incorporating such findings therein, not available for purchase by the either cancel the notice issued under this operator. We find, therefore, that subsection or issue an order requiring the equipment needed to abate these the operator of such mine to cause all three violations was not available

persons in the area affected, except those

persons referred to in subsection (d) of for purchase by the operator at the

this section, to be withdrawn from, and time the notices were issued.

be prohibited from entering, such area Having made this finding, we until the Secretary, after a public hearmust determine whether penalty as- ing affording all interested persons an sessments made for the subject no

opportuntiy to present their views, de

termines that such conditions have been tices should be permitted to stand.

abated. Any hearing under this paraSection 104(h) (1) of the Act, graph shall be of record and shall be pertaining to unabatable condi- subject to section 554 of Title 5 * * *. tions, provides as follows:

We construe the phrase, "cannot (1) If, upon any inspection of a coal be effectively abated through the mine, an authorized representative of use of existing technology,” to enthe Secretary finds (A) that conditions

compass circumstances where, at the

time of the inspection, the operator 13 The Judge made this finding even though he recognized, on the same page of his Deci

cannot have available the equipsion, that the operator's purchase manager ment, materials, certified or qualihad called a few companies and determined that the equipment was not available (Dec. 9).

fied personnel, or scientific exper523-617-73— 4

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tise required to comply with a man- nology” and reasonably believes datory health or safety standard. that continued mining operations We believe it significant that no- will not ripen into an imminent where in section 104(h) is the term danger situation, the issuance of “violation” used, but instead, the either a section 104(b) or a section term, "conditions,” is employed. It 104 (h) notice would be inapprois likewise significant that in sec- priate. tion 104(b) of the Act Congress If the inspector should issue a used the term “violation” rather section 104(b) notice of violation than "conditions" and, that section under the mistaken belief that 109 of the Act requires the manda- equipment is available, and it later tory assessment of a civil penalty proves not to have been, then MESA only where the Secretary finds that or the Judge should vacate the a “violation” occurred.

notice. Of course, in all cases, irreReading sections 104(b), 104(h), spective of the unavailability of and 109 together and giving effect equipment, material, or technical to the language of all three, we con

personnel, if the inspector believes clude that Congress did not intend

that the condition or practice conthat a section 104(b) notice be is

stitutes an existing imminent dansued or a civil penalty assessed

ger, he must issue a section 104(a) where compliance with a mandatory

order of withdrawal 14 to protect health or safety standard is impos

14 This construction of the statute finds supsible due to unavailability of equip- port in the opinion of the United States Dis.

trict Court for the Western Distriet of Virginia ment, materials, or qualified tech

at Abingdon, rendered in the course of issuing nicians. Where an inspector observes a temporary restraining order in the case of

Ratliff, et al v. Hickel, et al, Civil Action No. a condition constituting a health or

70-C-50-A, where Judge H, E. Widener, Jr. safety hazard and is aware that the

said :

"When imminent danger is not involved, the “existing technology” required for

defendants are restrained from enforcing Title abatement is unavailable, we think III of sald Public Law 91-173 in any manner,

other than in accordance with Section 104 the better course would be to issue

(h)(1) of said Public Law, when defendants a section 104(h) notice if the in- charge violations which may be corrected by

the use of equipment which is not available spector reasonably believes that con

for purchase, the court being of opinion that tinued mining operations will ripen equipment which is not available for purchase

cannot effectively be used to a bate a condition into an imminent danger situation.

through the use of existing technology. The The ultimate consequence of an

defendants are further restrained from en

forcing Title III of said Public Law in any investigation triggered by a 104(h) manner other than in accordance with Sec

tion 104(h) (1) of said Public Law, when notice would be the cancellation of

defendants charge violations which may not be the notice or the issuance of a with- corrected because of the unavailability of certi.

fied, registered or qualified personnel or redrawal order. No penalty assess- quired materials. However, this subparagraph

of this order shall in no way prevent the ment would be involved. If, on the

defendants from seeking any remedy provided other hand, the inspector is aware

under said Public Law by way of fine, penalty,

or other tools, including closure of mines, in of impossibility of abatement due the event, in the opinion of the defendants.

the condition complained of is causing or to unavailability of "existing tech- resulting in imminent danger."

September 20, 1973

the health and safety of the miners these civil penalties * * *. While the exposed to such danger.

burden of proving unavailability of equip

ment or materials may be on the operaApplying the foregoing statutory

tor so long as there is an inference of construction to the facts here, we

availability, when-as here—the only hold that the three notices above evidence of record rebuts that inference, discussed should have been vacated there is nothing to be proven or disand the penalties assessed thereon

proven [by the operator). set aside. At the time of the issuance

Notice No. 3 OS, 3/8/71, was of the notices, the inspector knew based on a violation of 30 CFR 75– that the equipment and materials 1403-1(b) and 30 CFR 1403–9.15 required for abatement were un

It specified the following: available to the operator. He found Shelter holes were not provided along no imminent danger present, and the truck haulage roads at intervals of it is fair to infer he was reasonably

not more than 105 feet as required in a satisfied that no imminent danger

notice to provide Safeguards (No. 3)

issued February 26, 1971. was likely to develop. This inference is based the answer of the

The objection made by Buffalo upon

to this notice of violation and asinspector in response to the Judge's question as to whether there were

sessment of $100 is the failure of the

Judge to make findings of fact. The any means to control fires at the

determination that the violation octime of the inspection. He replied,

curred is not disputed; however, “Yes, sir, rock dust was available and fire extinguishers were avail

the Judge did not make specific able.” (Tr. 98.) Therefore, the in

findings on gravity, negligence, and spector should have issued no notice good faith. at all. Neither a 104 (b) notice nor

The only evidence on this violaa 104(h) notice was appropriate. tion was the testimony of the inHe might simply have informed the

spector. He testified that the violaoperator, however, that compliance tion was not serious (Tr. 130, 135), would be expected after the equip

that it could have been prevented by ment became available, and, that

the operator prior to notice (Tr. failure to do so could result in the

131), and that the operator made a issuance of a 104(b) notice.

15 These two regulations arise from section With respect to the question of

314(b) of the Act, 30 U.S.C. 874(b), which

provides : "Other safeguards adequate, in the burden of proof which was raised judgment of an authorized representative of in connection with the alleged vio

the Secretary, to minimize hazards with re

spect to transportation of men and materials lations, we are in accord with Buf

shall be provided.” 30 CFR 75–1403–1(b) refalo's position on that point as ex

quires an inspector to give an operator written

notice to provide a safeguard where needed pressed in its brief at pp. 14 and for safe man trips and transportation of men

and to issue a notice of violation if the oper15, as follows:

ator fails to provide the safeguard within the Essentially the state of the evidence

time fixed. 30 CFR 75--1403-9 specifies the

criteria for shelter holes for guidance to the bere is that the Government's own wit

inspectors in issuing notices to provide safeness has absolved Buffalo of liability for

guards.

good faith effort to achieve rapid were out of the mine. (Tr. 574, 575, compliance after receiving the no- 577-581.) tice of violation (Tr. 131). We find Commenting on this explanation, from the foregoing evidence that the the Judge in his decision at p. 3 gravity of this violation was mini- (Dec. 3) stated : mal, that the operator was negli

I think the explanation makes sense; gent but that it demonstrated good and it is to be noted that although the faith in achieving rapid compli- inspector fixed a 10-day period for abate ance after receiving the notice of ment, Respondent corrected the condition violation. We find no reason, how

within one day. This is a situation where

the evidence appears to justify the temever, to change the assessment of

porary violation. But, as I read the Act, $100 made by the Judge for this mitigating circumstances can be reflected violation.

only in the amount of the penalty to be

assessed. Appeal No. IBMA, 73–22, Docket

Buffalo argues that the Judge's No. HOPE 72–65-P

words, "the evidence appears to Notice No. 2 OS, 3/12/71, charges justify the temporary violation," a violation of 30 CFR 75.507 in that amounted to a finding that the facts “the direct-current rectifier was lo- were more than mitigating and abcated in the return airway in No. 2 solved Buffalo of all liability for a section.” 16

penalty assessment. It is not disputed that the rec- We disagree. It seems to us that tifier was located in the return air- although the Judge failed to exway. However, the mine superin- pressly find the operator not neglitendent explained that the mine had gent under the circumstances here, been ventilated with one fan and his comments as a whole indicate during the night of March 11, 1971, simply a belief that the operator was a second fan was installed to pro- not negligent. vide more air. This caused the rec- The inspector testified that the tifier to be in return air for the day violation was serious because of the of March 12. The operator moved possibility of methane being present the rectifier into intake air on in the return airway. (Tr. 509.) But March 13, a Saturday. The superin- this was offset by his further testitendent pointed out that a fan had mony: that no methane was present been constructed for some time but during the inspection and to his when it was ready it could not be knowledge none had ever been found put in the circuit until the miners in that mine (Tr. 517); that no coal

float dust was in the return airway; 18 30 CFR 75.507 restates the statutory safety and that he did not see any other standard set forth in section 305(d) of the Act

hazard (Tr. 518). (30 U.S.C. $ 865 (d)) which provides : "All power-connection points, except where permis- The Judge made findings that the sible power connection units are used, out by the last open crosscut shall be in intake air."

violation charged in fact occurred

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September 20, 1973

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and that the operator exercised dili- ant qualities and good bonding to gence in abating the condition—not the outer jacket.17 The Act and the ing that the correction was made regulations also provide that one within one day after receipt of the temporary splice may be made in notice of violation. He made no ex

any trailing cable; that such trailpress ultimate findings as to negli- ing cable may only be used for the gence, gravity, or good faith

next 24-hour period; and that temcompliance.

porary splices in trailing cables Therefore, the Board finds from

shall be made in a workmanlike the evidence adduced that the opera- manner and shall be mechanically tor was not negligent, that the vio- strong and well-insulated.18 lation was not grave, and that the The inspector explained in his operator demonstrated good faith

testimony (Tr. 529-530, 534) that in achieving rapid compliance after the main difference between a pernotice. We conclude that these miti- manent splice and a temporary gating findings justify a reduction splice is that a permanent splice inof the assessment from $50 to $10. volves the application of heat or

Notice No.4 OS, 3/16/71, charged vulcanization and is made with Buffalo with the following violation flame-resistant material that seals of 30 CFR 75.604:

itself, while a temporary splice is A permanent splice in the trailing cable

made without using heat or any on No. 2 shuttle car in No. 1 section was such flame-resistant material. He not effectively sealed and insulated to

testified also that the splice inexclude moisture; and flame resistant

volved in this notice was a permaterials were not used.

manent splice because it had been The principal issue here is whether

vulcanized with a flame-resistant the Judge erred by rejecting the material, but was defective. (Tr. following finding proposed by 526, 527.) He further testified: "It Buffalo:

wasn't made as a temporary splice. The evidence fails to establish the vio- It was made as a permanent splice.” lation charged, that a permanent splice in (Tr. 531.) the trailing cable of a shuttle car

We concur with the Judge that "a not properly made because the evidence showed that the splice in question met

temporary splice is not a so-called all the requirements of an unprohibited

lesser-included condition of a pertemporary splice.

manent splice," (Dec. 4) and with We hold that he did not.

his finding that the splice in quesThe Act and the regulations pro

tion was a faulty permanent splice. vide among other things that a per

(Dec. 5.) manent splice, when made, shall be The inspector testified in subeffectively insulated and sealed so

stance that the violation was serious as to exclude moisture, and vulcan

17 See section 306(e) of the Act (30 U.S.C. ized or otherwise treated with suita- $ 866(e)) and 30 CFR 75-604.

18 See section 306(d) of the Act (30 U.S.C. ble materials to provide flame-resist

$ 866(d)) and 30 CFR 75.603.

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