FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con. INSPECTIONS AND INVESTIGATIONS 1. It was the clear intent of Congress to require neither a search warrant nor the express consent of an operator, before an inspection of a coal mine, under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §§ 813(b), 815. Clinchfield Coal Company, 1 IBMA 70a, 79 I.D. 655, (1972) CCH Employment Safety and Health Guide par. 15,370 (1971)_____
MANDATORY SAFETY STANDARDS Generally
1. The requirement of 30 CFR 77.215(c) is applicable
to refuse piles constructed prior to July 1, 1971, as well as to any constructed after that date____.
2. Where the evidence is suffi- cient to establish that the roof or ribs of a mine were not adequately supported to protect per- sons from falls, it is not necessary to prove a violation of the roof control plan in order to sustain violation of section 302(a) of the Act---
3. The presence of defective
equipment in a working area of a mine is prima facie evidence of the vio- lation of an applicable section of the Act; how- ever, such evidence can be rebutted by the opera- tor, and where he demon- strated by a preponder- ance of the evidence that the equipment was under
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con. MANDATORY SAFETY STAND- ARDS-Con. Generally-Con.
repair, and had not been used, and was not to be operated until it met the required safety stand- ards, no violation of the Act has occurred_______
4. Where the evidence is suffi- cient to establish that the roof or ribs of a mine were not adequately sup- ported to protect persons from falls, it is not neces- sary to prove a violation of the roof control plan in order to sustain a vio- lation of section 302(a) of the Act.
1. Use of a clamp to ground an electric hand drill is a violation of 30 CFR 75.701-3 unless approved by an inspector or some other authorized repre- sentative of the Secre- tary.
Trailing Cable Splices
1. Where the evidence shows an
operator made a defective permanent splice in a trailing cable in violation of 30 CFR 75.604, the Administrative Law Judge did not err by finding that a violation occurred or by holding that the defective per- manent splice may not be deemed to be a permissible temporary splice.
2. Under section 306 of the Act, 30 CFR 75.603, only one temporary splice may be made in a trailing cable at one time...
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con. MODIFICATION OF APPLICATION OF MANDATORY SAFETY STANDARDS Publication
1. Where a proposed modifica- tion is amended subse- quent to publication in the Federal Register, strict compliance with the pro- visions of section 301(c) of the Act requires repub- lication of the new pro- posal...
1. A stipulation of facts and conditions arrived at after extensive consultation and study by technical experts of the parties, in the absence of objection, and with agreement of the Bureau that the pro- posal will guarantee no less than the same meas- ure of protection as the mandatory standards, shall be sufficient to sup- port a grant of a modifi- cation of the application of mandatory standards.
Waiver of Participation 1. Where a party has had actual
notice of all proceedings relating to a petition for modification of a manda- tory safety standard and elects not to participate, he shall be deemed to have waived any objec- tion to the petition_____ NOTICES OF VIOLATION
1. A change in the ventilation system to eliminate ac- cumulations of methane in a mine will not con- stitute a violation of section 303 (k) of the Act where it is established
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con. NOTICES OF VIOLATION-Con. Abatement-Con.
that such remedial pro-
cedure was the proper
corrective action____
1. To sustain its burden of proving that spontaneous ignition (or combustion) occurred in refuse piles, the Bureau of Mines must show (1) that cer- tain combustible material was present in each pile; (2) that the piles were compacted in such a way as to permit air to flow through the piles, allow- ing oxidation to occur and (3) that the inference of spontaneous ignition was more probably than any other inference which could be drawn from the facts proved------ PENALTIES
1. Where an Administrative Law Judge is confronted with a factual determina- tion of the effect of the amount of the penalty on the ability of an oper- ator to continue in business under section 109(a)(1) of the Act, and the record con- tains no evidence on that criterion, the Judge should apply the pre- sumption of no adverse effect in making the nec- essary findings... Amounts
1. It is not merely the fact that
an alleged violation is cited as a part of an imminent danger order
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con.
PENALTIES-Con. Amounts-Continued
of withdrawal, but the degree of danger created by the violation either standing alone or in com- bination with other cited violations which is deter- minative of the statutory criterion of gravity_____ Criteria
1. It is error not to consider, as part of the history of previous violations in fix- ing the amount of a civil penalty under section 109 of the Act, violations for which the operator has agreed to pay, under protest, the amounts
assessed by the Assess- ment Officer..
1. A violation of section 304 (d) will be upheld where an acceptable sampling of a floor area required to be rock dusted reveals the presence of less than 65
per centum of incombus- tibles...
Existence of Violation
1. Since section 303(g) of the Act requires weekly ven- tilation examinations to be made in all under- ground coal mines and the air volume measure- ment to be recorded in a book approved by the Sec- retary, an operator cannot properly be charged for a violation of that section for merely failing to re- cord such measurements when the Secretary had not yet approved the book for recording such
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con.
Existence of Violation-Con.
measurements at the time of inspection... Evidence
1. A fact may be inferred from circumstantial evidence, and such fact may be the basis of further in- ference leading to the ultimate or sought for fact
Penalty Against Operator 1. More than one person may fall within the Act's def- inition of "operator," but the proper party to be held liable for penalties is the operator responsible for the violations and liable for the health and safety of its employees even though such operator is an independ- ent contractor_-_.
2. The Bureau of Mines has the initial discretion in serving orders and notices; however, since the question of the re- sponsible operator is a factual determination, the Bureau's discretion must be subject to and withstand the scrutiny of administrative review. 3. Since the hearing conducted by an Administrative Law Judge in a penalty proceeding brought under section 109 of the Act is de novo, penalties as- sessed by the Judge, otherwise valid, are not unlawful solely because they are higher than the informally proposed as- sessments___
FEDERAL COAL MINE HEALTH
AND SAFETY ACT OF 1969-Con. PENALTIES-Con.
Ability to Continue in Business 1. The application of the legal presumption that there is no adverse effect of a penalty assessment on the operator's ability to continue in business in the absence of con- trary evidence produced by the operator, places no unlawful or unjust burden upon the operator since such evidence is under the exclusive con- trol of the operator and is probative only of a mitigating consideration for the operator's own benefit. 30 U.S.C. § 819(a) (1)_.
1. The criterion of the appro- priateness of a penalty to the size of an operator's business under section 109 (a) (1) of the Act does not require the creation of a legal presumption because the factual infor- mation needed to apply such criterion in deter- mining the amount of the penalty should be readily ascertainable by MESA. 30 U.S.C. §819 (a) (1)_ _ _.
RECONSIDERATION
1. After remanding a case be-
cause there was no waiver of hearing, the Board will not grant recon- sideration to decide if the Administrative Law Judge should be disqualified___
FEDERAL COAL MINE HEALTH AND SAFETY ACT OF 1969-Con. REVIEW OF NOTICES AND
Timeliness of Filing
1. The mailing of an application for review is not de- terminative of timely filing since receipt is the governing factor...
2. Where the delay of receipt of a properly addressed ap- plication for review be- yond the expiration of the specified filing period is caused solely by the Department's own em- ployee, the application I will not be dismissed as untimely filed................
3. Unauthorized actions of its own employees cannot be used by the Depart- ment as the basis for defeating a substantive right of a party afforded by the Act..-.
UNAVAILABILITY OF EQUIP- MENT, MATERIALS, OR QUALIFIED TECHNICIANS
1. Where an inspector observes a condition in a coal mine constituting a health or safety hazard, and is aware that the operator cannot abate such condi- tion because of the un- availability of equipment, materials, or qualified technicians, he should not issue a notice to the operator, either under section 104 (b) or section 104 (h) of the Act, if he is reasonably sure that continued mining opera- tions will not develop into an imminent danger. 30 U.S.C. §§ 814 (b), 814(h)__
under section 104(b) of the Act be issued, or that a civil penalty be as- sessed, where compliance with a mandatory health or safety standard is impossible due to the unavailability of equip- ment, materials or quali- fied technicians. 30 U.S.C. §§ 814(b), 814(h), 819_
Section 104(h) Notices
1. Where an inspector observes a condition in a coal mine constituting a health or safety hazard and is aware that the operator cannot abate such con- dition because of the unavailability of equip- ment, materials or qual- fied technicans, he should issue a notice under sec- tion 104(h) of the Act; provided, he is reasonably sure that continued min- ing operations will de- velop into an immi- nent danger. 30 U.S.C. $814(h).
VALIDITY OF REGULATIONS
1. The Board of Mine Opera- tions Appeals has no authority to determine the impact, if any, the requirements of the Na- tional Environmental Policy Act and Executive Orders issued with respect thereto may have on the validity of substantive regulation promulgated by the Secretary under
AUTHORITY TO BIND GOVERNMENT 1. The authority of the Gov- ernment to proceed with the determination of the validity of a mining claim is not barred by laches, because Govern- ment property is not to be disposed of contrary to law, despite any acqui- escence, laches, or failure to act on the part of its officers or agents-----
2. Where lands were not with- drawn for Indians, any express or implied con- sent by Indian Office officials to Navajos graz- ing sheep on public lands outside their reservation boundaries where no claim to the land was made under section 4 of the General Allotment Act and the lands were recognized by such offi- cials and other govern- ment officials as public lands, rather than Indian lands, could not create Indian tribal occupancy rights to such lands superior to the Congres- sional grant to the State of Utah for school lands,
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