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---

a

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.

Grounding

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...

Stipulations

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

Abatement

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____

Elements of Proof

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..

Evidence

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.

PENALTIES-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.

Presumptions

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)_.

Size of Business

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

ORDERS

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

Generally

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,