LJ's Corporation

Plain-English summary

LJ's Corporation was cited after records at its contracted mine rescue station showed that mine rescue apparatus had not been inspected and tested within the required 30-day interval. The ALJ dismissed the citation because the records did not by themselves prove that the testing had not occurred. The Commission held that the records established a prima facie violation and that the operator needed to provide evidence showing that the inspection and testing had actually been performed. It reinstated the citation and assessed the Secretary’s proposed $20 civil penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 49.6(b)
• Outcome: The citation was reinstated, and a $20 civil penalty was assessed.
• Key point: When required inspection records show a missed certification interval, the operator must rebut that showing with evidence that the inspection actually occurred.

Full text (FMSHRC public release)

CCASE:
MSHA V. LJ'S CORP.
DDATE:
19920826
TTEXT:
August 26, 1992
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v. Docket No. VA 90-47

LJ'S CORPORATION

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners
DECISION
BY THE COMMISSION:
At issue in this civil penalty proceeding arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. • 801 et seq. (1988)(the "Mine
Act"), is whether LJ's Coal Corporation ("LJ") violated 30 C.F.R. • 49.6(b)
because of the alleged failure of its independent contractor, Mine Technology
Rescue Station ("MT"), to test mine rescue apparatus at intervals not
exceeding 30 days.(Footnote 1) Commission Administrative Law Judge Avram
Weisberger concluded that LJ did not violate section 49.6(b). 13 FMSHRC 1491
(September 1991) (ALJ). The Commission granted the Petition of the Secretary
of Labor ("Secretary") for Discretionary Review. For the reasons set forth
below, we reverse the judge's decision.

1 Section 49.6(b) provides:
Mine rescue apparatus and equipment shall be
maintained in a manner that will ensure readiness for
immediate use. A person trained in the use and care
of breathing apparatus shall inspect and test the
apparatus at intervals not exceeding 30 days and
shall certify by signature and date that the
inspections and tests were done. When the inspection
indicates that a corrective action is necessary, the
corrective action shall be made and the person shall
record the corrective action taken. The
certification and the record of corrective action
shall be maintained at the mine rescue station for a
period of one year and made available on request to
an authorized representative of the Secretary.
~1279
I.
Factual Background and Procedural History

Page 2

LJ's No. 1 Mine, an underground coal mine, is in Lee County, Virginia.
LJ contracted with MT to provide it with a mine rescue station and related
services. On April 11, 1990, Mine Safety and Health Administration ("MSHA")
Inspector Fred Buck examined MT's records of the mine rescue apparatus made
available to LJ pursuant to MT's contract with LJ. Buck found that
inspection and testing of the mine rescue apparatus had not been done within
the 30-day period prescribed under section 49.6(b). On April 16, 1990, Buck
issued a citation to LJ pursuant to section l04(a) of the Mine Act, 30 U.S.C.
 814(a), alleging a violation of section 49.6(b). The citation states
During an inspection of the Mine Technology Mine
Rescue Station the following violation was
observed[:] The mine rescue apparatus was not being
tested within the 30 day interval. The records
showed the 30 days was exceeded by as much as 4 days.
At the hearing, Inspector Buck testified that, according to MT's
records, the required inspection and testing under section 49.6(b) had not
been done within 30 days. LJ presented no evidence. In his decision, Judge
Weisberger found that, at best, the evidence established that MT's records
did not contain an entry listing an inspection of the mine rescue apparatus
within the relevant 30-day period. Judge Weisberger concluded that this
evidence, by itself, was insufficient to establish that, in fact, the
apparatus had not been tested within a 30-day interval. As a result, Judge
Weisberger dismissed the citation. 13 FMSHRC at 1492.
II.
Disposition of Issues
On review, the Secretary argues that the judge erred in finding that LJ
did not violate section 49.6(b). The Secretary asserts that she established
a prima facie case, having shown that MT's records indicated that more than
30 days had elapsed between inspections. The Secretary argues that, after
establishing a prima facie case, the operator must provide evidence that the
required inspection was actually conducted.
Section 49.6 provides, in pertinent part, that a person trained in the
use and care of breathing apparatus shall inspect and test the mine rescue
apparatus at intervals not exceeding 30 days and shall certify by signature
and date that the inspections and tests were done. The regulation also
provides that a record of the certification shall be maintained at the mine
rescue station for a period of one year and made available on request to an
authorized representative of the Secretary.
The Secretary requires certification of inspections by operators in
order to allow MSHA inspectors, upon review of the records, to determine
~1280
whether inspection and testing has been conducted as prescribed in the
mandatory safety standard. PDR at 4; S. Br. at 4. If the Secretary were
unable to establish a violation by relying on the operator's own records to
indicate that the inspection had not been conducted, her only recourse would

Page 3

be to monitor constantly each operator's inspection and testing activities.
The Secretary maintains that such a procedure would be unworkable. PDR at 5.
We agree.
Clearly, the purpose of the required recordkeeping is to allow the
Secretary, simply by examining the records, to determine whether the operator
has conducted the inspection and testing. We agree with the Secretary that
the absence of certification of inspection and testing of the mine rescue
apparatus, within the 30-day period required by the regulation, is sufficient
to establish a prima facie case of a violation. We recognize that the
operator may have inspected and tested the mine rescue apparatus, as
required, but, for some reason, failed to record such inspection and testing.
If such be the case, the operator could come forward with evidence that the
inspection and testing were, in fact, performed as required. Since the
operator is in the best position to know whether the inspection and testing
has been done, we hold that, upon a showing by the Secretary that the
operator's records indicate the required certification was not made, the
violation is established unless the operator can show that such inspection
actually occurred within the relevant time period. Cf. Southern Ohio Coal
Company, 14 FMSHRC 1, 13 (January 1992); Mid-Continent Resources, 11
FMSHRC
505, 509 (April 1989).
Inspector Buck testified that the records required to be kept under
section 49.6 indicated that the mine rescue breathing apparatus had not been
inspected and tested during the 30-day interval. Tr. 11-12. LJ did not call
any witnesses or offer other evidence to show that the required inspection
and testing had actually been conducted. See Tr. 24-25. LJ's counsel argued
only that there was no evidence that the equipment had not, in fact, been
tested. We conclude that the Secretary established a violation.
Accordingly, we reverse the judge's finding that LJ did not violate
section 49.6(b). The citation indicated that the violation was not of a
significant and substantial nature and that it resulted from low negligence.
See Tr. 24. Thus, we assess the $20 civil penalty proposed by the Secretary.
~1281
III.
Conclusion
For the reasons set forth above, we reverse the judge's decision. We
conclude that LJ violated section 49.6(b), reinstate the section 104(a)
citation, grant the Secretary's petition for civil penalty, and assess a
civil penalty of $20 proposed by the Secretary.
Ford B. Ford, Chairman
Richard V. Backley, Commissioner
Joyce A. Doyle, Commissioner
Arlene Holen, Commissioner
L. Clair Nelson, Commissioner