FEBRUARY 2004 

COMMISSION DECISION 

02-04-2004 RAG Shoshone Coal Corporation 

ADMINISTRATIVE LAW .JUDGE DECISIONS 

02-04-2004 F.R. Carroll, Incorporated 

02-18-2004 Leslie 0. Gleason v. Colowyo Coal Co. 

02-25-2004 Southwest Quarry & Materials Inc. 

02-26-2004 Cold Spring Granite Co. 

02-26-2004 Granite Mountain Crushing, LLC. 

ADMINISTRATIVE LAW .JUDGE ORDERS 

02-02-2004 Jim Walter Resources, Inc. 

02-23-2004 Webster County Coal, LLC. 

i 

WEST 1999-342-R 

YORK 2003-59-M 

WEST 2003-265-D 

CENT 2003-306-M 

CENT 2003-214-M 

CENT 2003-289-M 

SE 2003-97-R 

KENT 2003-332 

Pg. 75 

Pg. 97 

Pg. 105 

Pg. 116 

Pg. 119 

Pg. 126 

Pg. 133 

Pg. 136 

FEBRUARY 2004 

Review was granted in the following cases during the month of February: 

Secretary of Labor, MSHA v. Plateau Mining Corporation, Docket No. WEST 2002-207 and 

WEST 2002-278. (Judge Manning, December 22, 2003) 

Secretary of Labor, MSHA v. Martin County Coal Corporation and GEO/Environmental Associates, 

Docket Nos. KENT 2002-42-R, et al. (Judge Schroeder, January 14, 2004) 

Review was denied in the following case during the month of February: 

Secretary of Labor, MSHA v. Original Sixteen to One Mine, Inc., Docket No. WEST 2002-224-M(A) 

and WEST 2002-226-M. (Judge Melick, January 5, 2004) 

i i 

COM~MISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

RAG SHOSHONE COAL 

CORPORATION 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

February 4, 2004 

Docket Nos. WEST 99-342-R 

WEST 99-384-R 

WEST 2000-349 

BEFORE: Duffy, Chairman; Jordan, Suboleski and Young, Commissioners 1 

DECISION 

BY: Duffy, Chairman; Suboleski and Young, Commissioners 

This consolidated contest and civil penalty proceeding, arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) (the "Mine Act"), involves the 

validity of enforcement action taken by the Department of Labor's Mine Safety and Health 

Administration ("MSHA") against RAG Shoshone Coal Corporation ("Shoshone") based on the 

change of the designated occupation at Shoshone's mine.2 Administrative Law Judge August 

Cetti affirmed the citations. 23 FMSHRC 407, 421-22 (Apr. 2001) (AU). Shoshone filed a 

petition for discretionary review, challenging the judge's decision, which the Commission 

granted. In addition, the Commission granted leave to participate as amicus curiae to ten 

operators ("industry amici").3 The Commission also heard oral argument in the matter. For the 

reasons that follow, we reverse the judge's decision. 

1 Commissioner Beatty recused himself in this matter and took no part in its 

consideration. 

2 The designated occupation is "the occupation on a mechanized mining unit that has 

been determined ... to have the greatest respirable dust concentration." 30 C.F.R. § 70.2(f). 

3 Those operators include Canyon Fuel Co., LLC; CONSOL Energy Inc.; Eastern 

Associated Coal Corporation; Energy West Mining Company; Genwal Resources, Inc.; Mettiki 

Coal, LLC; Mingo Logan Coal Company; Mountain Coal Company, LLC; Peabody Coal 

Company; and West Ridge Resources, Inc. 

75 
I. 

Factual and Procedural Background 

Shoshone operates the Shoshone No. 1 mine, an underground coal mine in Hanna, 

Wyoming. Stip. l. Shoshone produces coal at MMU 008-0 through longwall mining.4 Stip. 7; 

23 FMSHRC at 407. The longwall shearer cuts coal in two passes. Tr. 29-31. The "main-cut 

pass" occurs when the longwall shearer makes its initial pass, moving from the tailgate to the 

headgate, and cutting the full diameter of the shearer's drums, which is approximately seven feet 

of the ten-foot coal seam. Tr. 29-30. The "cleanup pass" occurs when the shearer reverses 

direction, moving from the headgate to the tailgate, and cuts the remaining three feet of coal. Tr. 

30-31, 331. As the shearer cuts coal from the face, shields extending from the intake along the 

entire face advance. Tr. 22. The face conveyor or pan line takes the coal that has been cut and 

transfers it to the stageloader. Tr. 22. A crusher at the stageloader crushes large pieces of coal, 

and the stageloader transfers the coal to a belt. Tr. 21-22. 

On MMU 008-0, approximately nine miners worked at the face. Tr. 285. Those miners 

generally included five jacksetters (who advanced the shields), the tailgate-side longwall 

operator, the headgate-side longwall operator, the headgate operator, the foreman and, 

occasionally, a mechanic. Tr. 25, 27, 264, 285; Gov't Ex. 12. 

In accordance with the provisions of section 70.207(a), Shoshone is required to "take five 

valid respirable dust samples from the designated occupation in each mechanized mining unit 

during each bimonthly period." 30 C.F.R. § 70.207(a); 23 FMSHRC at 408. Since at least 

October 11 , 1983, Shoshone had sampled the tailgate-side longwall operator (code number 044) 

as the designated occupation on MMU 008-0. 23 FMSHRC at 409. 

MSHA inspectors also sample other occupations on the MMU in addition to the 

designated occupation. Id.; Stip. 18. MSHA inspectors compare the results of the different 

occupations in those sampling surveys in order to determine which occupation should be selected 

as the designated occupation. Tr. 72. 

In April 1988, Jerry Spicer, MSHA's Administrator for Coal Mine Safety and Health, 

sent a memorandum to district managers introducing the 060 code for the "Longwall Return-Side 

Face Worker." Gov't Ex. C to S. Mot. for Summ. Dec., at 3-4 (the "Spicer memorandum"). In 

the memorandum, Spicer stated that when the 060 designated occupation is sampled, the 

sampling device must remain with the miner working nearest the return air side of the longwall 

face at all times. Id. at 4. 

4 The term "MMU" refers to a "mechanized mining unit," or a "unit of mining equipment 

including hand loading equipment used f~r the production of material." 30 C.F.R. § 70.2(h). 

76 
On April 9, 1999, John Kuzar, District Manager for Coal Mine Safety and Health District 

9, notified Shoshone that the designated occupation for MMU 008-0 would be changed from the 

tailgate-side longwall operator (044) to "the miner who works nearest the return air side of the 

longwall working face" (060), effective during the May- June 1999 bimonthly sampling period. 

Gov't Ex. 12 at 1, 2. In the letter, District Manager Kuzar noted that sampling results showed 

that several other occupations were exposed to significantly higher concentrations of respirable 

dust than the then-designated occupation. Id. at 1. However, Kuzar did not direct the 

designation of any of these positions. Thus, while the sample results referred to by Kuzar 

revealed that the position of jacksetter had been exposed to the highest concentrations of 

respirable dust, Gov't Ex. 12, the notification instructed that, when collecting samples from 

designated occupation 060, "the sampling device shall remain at all times on the miner who 

works nearest the return air side of the longwall face." Id. at 2 (emphasis omitted). The letter 

also provided that the failure to sample in such a manner would result in invalid samples. Id. 

Shoshone wished to challenge the requirement that it sample the 060 designated 

occupation. 23 FMSHRC at 410. Accordingly, during the May - June 1999 bimonthly sampling 

period, it sampled the designated occupation of the tailgate shearer operator (044) rather than the 

060 occupation. Id. 

On July 8, 1999, MSHA issued Citation No. 9895049 to Shoshone which alleged a 

violation of section 70.207(a). Id. The citation stated·that MSHA had not received five valid 

respirable dust samples of the 060 designated occupation. Id. On July 16, 1999, District 

Manager Kuzar subsequently sent a letter to Shoshone stating that its ventilation plan would not 

be approved because the designated occupation in the plan had not been changed to reflect the 

060 occupation code. Gov't Ex. 14, at 1. The letter provided that Shoshone should make the 

appropriate revisions to its plan and submit a suitable plan amendment by July 23, 1999. Id. On 

July 26, MSHA sent a second letter, extending the period for submitting a revised plan until July 

30. Id. at 2. On August 2, 1999, MSHA sent a third letter stating that because it had not received 

a response to the first two letters, MSHA was rescinding Shoshone's ventilation plan. Id. at 3. 

On August 3, 1999, MSHA issued Citation No. 4073211 alleging a significant and substantial 

(''S&S") violation of section 75.370(a)(l)5 because Shoshone was operating without an approved 

ventilation plan. 23 FMSHRC at 407; Tr. 194, 204. 

Shoshone abated the citations by sampling the 060 designated occupation and 

incorporating that designated occupation into its ventilation plan. Tr. 172, 195. Shoshone then 

filed notices of contests of the citations. The matter went to hearing before Judge Cetti. 

The judge concluded that Shoshone had violated sections 70.207(a) and 75.370(a)(l), and 

that the violation of section 75.370(a)(l) was not S&S. 23 FMSHRC at 424. He reasoned that in 

mandating the chang~ in the designated occupation, MSHA acted within its authority and in 

5 30 C.F.R. § 75.370(a)(l) provides in part that "[t]he operator shall develop and follow a 

ventilation plan approved by the district manager." 

77 
compliance with the procedures set forth in section 70.207. Id. at 421. The judge rejected 

Shoshone's argument that the Secretary's adoption of the 060 designated occupation required 

notice and comment rulemaking. Id. at 421-22. He determined that MSHA acted reasonably and 

carried out the intent of Congress that miners are to be protected from excessive concentrations 

of respirable dust. Id. at 422. Because the judge determined that imposition of the 060 

designated occupation was valid, he concluded that Shoshone had violated section 70.207(a) by 

failing to submit samples of that designated occupation, and that it had violated section 

75.370(a)(l) by operating without an approved ventilation plan, incorporating the designated 

occupation. Id. at 422-23. The judge further concluded that the violation of section 75.370(a)(l) 

was not S&S because the citation had been issued as a technical violation resulting from an 

impasse between the parties in negotiating the ventilation plan, and because there was not a 

reasonable likelihood of injury. Id. at 423. 

The Secretary subsequently proposed a civil penalty of $55 for each violation. S. Br. at 7 

n.4. The civil penalty proceeding was consolidated with the contest proceedings. 

II. 

Disposition 

Shoshone argues that the judge erred in affirming the citations. It submits in part that 

imposition of the 060 code is inconsistent with sections 70.207 and 70.2(f), and the purpose of 

designated occupation samples. Sh. Br. at 8-20. Shoshone explains that the 060 code does not 

sample a designated occupation because it is not taken in the environment of a selected 

occupation on an MMU but, rather, samples an amalgam of occupations. Id. at 16-17. It further 

submits that because imposition of the 060 code as a "designated occupation" represents a 

substantive regulatory change, the Secretary was required to engage in notice and comment 

rulemaking before imposing the code.6 Id. at 8-24, 33-34; Sh. Reply Br. at 8-10. 

The Secretary responds that the judge correctly affirmed the citations. She submits that 

her interpretation of section 70.207 is entitled to acceptance in part because it is consistent with 

the language of that regulation and its purpose, and section 70.2(f). S. Br. at 7-20. The Secretary 

explains that, when sampling the 060 occupation, the sampling device must be transferred from 

miner to miner so that it will always be on the miner who is working nearest the return air side of 

the longwall face at any particular time. Id. at 10. She states that, in effect, the 060 code 

measures the respirable dust of a "hypothetical miner" in a fixed location. Oral Arg. Tr. at 37. 

The Secretary contends that rulemaking was not required for imposition of the 060 code because 

it does not reflect a change in interpretation of section 70.207(e), and that her position is an . 

"interpretative rule" which is exempt from the requirement of notice and comment rulemaking. 

S. Br. at 31-32 & n.15. 

6 The industry amici filed a brief supporting Shoshone's position. Amici Br. at 1-3. 

78 
A. Regulatory Interpretation 

Section 70.207 provides for the bimonthly designated occupational sampling of 

mechanized units in the following manner: 

(a) Each operator shall take five valid respirable dust samples from 

the designated occupation in each mechanized mining unit. ... 

**** 

(e) Unless otherwise directed by the District Manager, the 

designated occupation samples shall be taken by placing the 

sampling device as follows: 

**** 

(7) Longwall section. On the miner who works nearest the 

return air side of the longwall working face or along the working 

face on the return side within 48 inches of the corner .. .. 

30 C.F.R. § 70.207 (emphasis omitted). Part 70 further defines "designated occupation" as "the 

occupation on a mechanized mining unit that has been determined by results of respirable dust 

samples to have the greatest respirable dust concentration." 30 C.F.R. § 70.2(f). "Miner" is 

defined in the Mine Act as "any individual working in a coal or other mine." 30 U.S.C. § 802(g) 

(emphasis added). 

We begin, as we must, with the terms of the regulations. Dyer v. United States, 832 F.2d 

1062, 1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 

U.S. 102, 108 (1980)) ("The language of a regulation ... is the starting point for its 

interpretation."). By the terms of sections 70.207 and 70.2(f), the Secretary has clearly tied her 

sampling program of the designated occupation on an MMU in a longwall section to the miner 

who works nearest the return air side of the face and is exposed to the greatest respirable dust 

concentration. 

We conclude that the Secretary's imposition of the 060 code at Shoshone's mine ignores 

the specific requirements of the regulations. ~ection 70.207(e)(7) requires sampling "[o]n the 

miner" in a designated occupation in a mechanized mining unit. 30 C.F.R. § 70.207(e)(7) 

(emphasis added). However, the 060 code requires dust sampling from a progression of miners 

who, at any time during a shift, are nearest the return air side of the longwall face. Gov't Ex. 12, 

at 2. Indeed, during one 8-hour shift, use of the 060 code at Shoshone resulted in the transfer of 

the dust pump forty times, with one miner having the pump for 2 minutes and a non-employee, 

the MSHA inspector at the mine, having the pump for 34 minutes. Sh. Ex. 6. 

79 
Furthermore, while sections 70.2(f) and 70.207(a) and the prefatory language of section 

70.207(e) require the sampling of the designated occupation, the 060 code does not sample an 

"occupation." The 060 code is not connected to any specific job, or even to an area associated 

with the work position of any miner. Tr. 335, 370, 471-72. In addition, the 060 code does not 

reflect sampling of the miner assigned to the occupation that is shown by respirable dust samples 

to be exposed to the highest concentration of dust. The record in this proceeding indicates that 

MSHA conducted respirable dust surveys between August 1997 and February 1999 that revealed 

that the jacksetter (code 041) rather than the tailgate-side longwall operator (code 044) was 

exposed to the most respirable dust during the sampling periods. Gov't Ex. 12, at 4. 

Notwithstanding those results, MSHA required Shoshone to change its designated occupation to 

the 060 code rather than to the jacksetter code. Id. at 1-2. 

We must also consider the regulations in context.7 See Morton lntemat'l, Inc., 18 

FMSHRC 533, 536 (Apr. 1996) ("[R]egulations should be read as a whole, giving 

comprehensive, harmonious meaning to all provisions."). Section 70.207(e)(7) is part of a 

comprehensive regulatory scheme designed to ensure that the level of respirable dust in the mine 

atmosphere "to which each miner in the active workings of such mine is exposed" is at or below 

2 milligrams per cubic meter of air ("mg/m3

"). 30 C.F.R. § 70. lOO(a); see also 30 U.S.C. 

§ 842(b)(2). In order to accomplish the goal of ensuring that the level of dust in the mine 

atmosphere to which each miner is exposed is below the permissible level, the Secretary 

designed a two-part sampling program that relies on designated occupational sampling, 30 C.F.R. 

§ 70.207, and designated area sampling, 30 C.F.R. § 70.208. Designated occupational samples 

measure the dust of the "occupation on a mechanized mining unit" determined to have the 

greatest respirable dust concentration, while designated area samples measure dust associated 

with "dust generation sources in the active workings" of the mine. 30 C.F.R. §§ 70.2(f), 

70.208(e). It would have been difficult for the drafters to express the delineation between the 

two sampling programs, and the distinct purpose of each, more clearly. 

Designated occupation samples are taken in the face area, while designated area samples 

are taken in locations upwind, or outby, the face. Tr. 48, 50-51, 139; 45 Fed. Reg. 23990, 23991, 

23998 (Apr. 8, 1980). The differences between the two types of samples are reflected throughout 

the regulatory scheme, which, for instance, sets forth different sampling schedules and different 

definitions of what constitutes a production shift for sampling purposes. Compare 30 C.F.R. 

§ 70.207(a) with§ 70.208(a) (setting forth different sampling schedules) and § 70.2(1) with 

7 We do not dispute our dissenting colleague's statement that the plain meaning of a 

standard governs unless such a meaning would lead to an absurd result or be at odds with the 

purpose of the underlying statute. Slip op. at 14. However, in order to discern a standard's plain 

meaning, the sta~ ard must be read in context. See Local Union 1261, UMWA v. FMSHRC, 917 

F.2d 42, 45 (D.C. Cir. 1990) ("If the first rule of ... construction is 'Read,' the second rule is 

'Read on!'"); Borgner v. Brooks, 284 F.3d 1204, 1208 (11th Cir. 2002), cert. denied sub nom. 

Borgner v. Florida Bd. of Dentistry, 537 U.S. 1080 (2002) (stating that in discerning a statutory 

provision's plain meaning, court must construe the statute in its entirety). 

80 
§ 70.2(k) (setting forth different definitions of production shift). Thus, the complementary 

requirements of the designated occupational and area sampling programs serve distinct purposes, 

and each type of sampling has been treated in a different manner by MSHA.8 

The Secretary's imposition of the 060 code effectively nullifies this distinction between 

designated occupation and designated area sampling. By regulatory definition, a designated 

occupational sample is distinct from a designated area sample in that the sample is tied to the 

occupation of a miner, and not to a location. Cf 30 C.F.R. §§ 70.2(f), 70.208(e). The 

Commission has previously noted the connection between a designated occupation and a miner's 

work position, stating that a "designated occupation is the work position determined to have the 

greatest respirable dust concentration." Keystone Coal Mining Corp., 16 FMSHRC 6, 10 n.6 

(Jan. 1994) (emphasis added). Similarly, the D.C. Circuit has stated with respect to designated 

occupation samples: 

One occupation on each mechanized mining unit is designated as 

most hazardous in terms of exposure to respirable dust. The 

samples are collected by having the miner who perfonns the 

designated occupation wear the sampling device or by placing the 

sampling device near that miner's nonnal work position. 

Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071, 1075 (D.C. Cir. 1987) ("Consol") 

(emphasis added). The 060 code abrogates the distinction between occupation and area sampling 

in that it is only associated with a location, which is not tied to the occupation of a miner. 

Furthermore, while the Secretary's imposition of the 060 code eradicates the distinction 

between designated occupation and designated area sampling, it does not serve the purpose of 

either sampling scheme. Imposition of the 060 code does not focus on the primary concern of the 

designated occupation sampling program because the 060 code does not measure the average 

mine atmosphere to which each miner is exposed by selecting and measuring the miner exposed 

to the greatest concentration of respirable dust.9 Nor does the 060 code advance the objective of 

designated area sampling: the identification and control of dust generation sources. 45 Fed. Reg. 

at 23991 (providing that designated area samples measure dust generation sources). It is 

8 Both the Secretary and our dissenting colleague state that occupation sampling is 

simply area sampling. S. Br. at 22-23; slip op. at 19-20. While it may be argued that occupation 

sampling is a type of area sample, it does not follow that any form of area sampling may 

therefore be utilized when conducting occupation sampling. While all A may be B, it does not 

follow that all B are A. 

9 Sampling of the designated occupation is a continuation of the sampling program in 

effect prior to the promulgation of section 70.207, in which the miner in the "high risk 

occupation" was sampled. Tr. 48-51; see 45 Fed. Reg. at 23998; AMC v. Marshall, 671 F.2d 

1251, 1254 & n.3 (10th Cir. 1982). 

81 
undisputed that dust from multiple dust generation sources, such as the stage loader, crusher, face 

conveyor, shields, and shearer, accumulates at the area where the 060 samples are taken as air 

flows from the headgate to the tailgate. Tr. 67-68, 159, 230. Thus, an elevated reading of the 

060 code would not identify the area along the 800 or more feet of Shoshone's longwall that 

requires stricter respirable dust control. 

Contrary to the Secretary's argument (S. Br. at 15-16), the Federal Register preamble 

accompanying the publication of section 70.207 does not support her use of the 060 occupation 

code. In addressing the substance of the final rule, the Secretary discussed the " two different 

types" of samples to be taken by operators under sections 70.207 and 70.208, recognizing that 

designated occupational samples are taken on a mechanized mining unit while designated area 

samples are taken in outby locations, and that operators have separate obligations for those two 

types of samples. 45 Fed. Reg. at 23991. 

It is also clear from the regulatory history that while the Secretary may not have known 

which job title to name as the designated occupation on the longwall at the time of the 

promulgation of section 70.207, 10 she intended that the position be filled by an actual miner 

working in an assigned occupation and not by a hypothetical miner. The preamble provides, 

''The rule allows designated occupation samples to be taken by having the miner in the 

designated occupation wear the sampling device or by placing the sampling device at specified 

locations near the miner's normal work position." Id. Nowhere is there a suggestion that the 

Secretary would impose through the designated occupation sampling regime the 060 code with 

the attendant obligation to transfer the dust pump 40 times in an eight-hour shift among a 

succession of miners (including an MSHA inspector) in numerous occupations. See Sh. Ex. 6. 

B. Rulemaking 

We also conclude that the imposition of the 060 code amounts to a "substantive rule," 

and not an interpretive rule as the Secretary claims. S. Br. at 30-33. Section 553 of the 

Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1994) ("APA"), requires agencies to 

provide notice of proposed rulemaking and an opportunity for public comment prior to a rule's 

promulgation, modification, amendment, or repeal. 5 U.S.C. § 553. Under the APA, a "rule" is 

defined as " the whole or a part of an agency statement of general or particular applicability and 

future effect designed to implement, interpret, or prescri be law or policy or describing the 

organization, procedure, or practice requirements of an agency .... " 5 U.S.C. § 551(4). 

Substantive rules are subject to the APA's notice and comment requirements, while interpretive 

10 Shoshone states that section 70.207(e)(7) does not specify a job position because at the 

time of the rule's promulgation, job titles on longwalls were not well established and the 

Secretary needed flexibility to select the appropriate job title as the designated occupation. 

Sh. Reply Br. at 6. The record does not reflect any change in technology or circumstances at 

Shoshone's mine that justified the change in designated occupation from the tailgate-side · 

longwall operator to the 060. Oral Arg. Tr. at 21. 

82 
rules are not. 5 U.S.C. § 553(b)(3)(A). 

A substantive rule is distinguishable from an interpretive rule in that it canies "the force 

and effect of law." Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 587-88 

(D.C. Cir. 1997), quoting AMC v. MSHA, 995 F.2d 1106, 1109-10 (D.C. Cir. 1993). An "agency 

may not escape the notice and comment requirements ... by labeling a major substantive legal 

addition to a rule a mere interpretation." Appalachian Power v. EPA, 208 F.3d 1015, 1024 (D.C. 

Cir. 2000) (citations omitted). Thus, we "'look to whether the interpretation itself canies the 

force and effect of law."' Id. (citations omitted). A purported interpretive rule has "legal effect" 

if, in the absence of the rule, there would not be an adequate legislative basis for the enforcement 

action taken, or if the rule effectively amends a prior legislative rule. AMC v. MSHA, 995 F.2d at 

1112. "When an agency has given its regulation a definitive interpretation, and later significantly 

revises that interpretation, the agency has in effect amended its rule, something it may not 

accomplish without notice and comment." Alaska Prof'l Hunters Ass'n, Inc. v. FAA, 177 F.3d 

1030, 1034 (D.C. Cir. 1999). Thus, although the Secretary may be seeking to achieve the 

laudable goal of reducing miners' exposure to respirable dust by imposing the 060 code, she 

must do so through proper means. See Michigan v. EPA, 268 F.3d 1075, 1084 (D.C. Cir. 2001) 

(stating that agency does not have "a roving commission to achieve ... [any] laudable goal" 

without complying with authorized procedure). 

We conclude that the Secretary was required to engage in notice and comment 

rulemaking before imposing the 060 code. 11 Tr. 107. First, the imposition of the 060 code has 

legal effect in that, in the absence of the code, there would not be an adequate legislative basis for 

the Secretary's issuance of the subject citations. AMC v. MSHA, 995 F.2d at 1112 (stating that 

purported interpretative rule has legislative effect if, in the absence of the rule, there was not an 

adequate legislative basis for enforcement action). The parties do not dispute that the "position" 

of "Longwall Return-Side Face Worker" does not exist on the longwall face. Tr. 67-68; Oral 

Arg. Tr. 6, 23, 37. Because the 060 code does not represent an actual miner- an "individual," to 

use the statutory definition of miner - it has no significance in and of itself. 30 U.S.C. § 802(g). 

In fact, the 060 code is meaningless without reference to MSHA's list of position codes, which 

11 We note that the Secretary has treated the 060 code as being a generally applicable 

requirement. It is undisputed that at the time of the hearing, approximately 85% of the nation's 

longwalls were required to sample the 060 code as their designated occupation. Tr. 107. The 

seriatim imposition of the 060 code at a vast majority of mines throughout the country implicates 

the Commission's holding in Carbon County Coal Co., that the Secretary commits an abuse of 

discretion by imposing a plan provision "as a general rule applicable to all mines" without 

consideration of particular circumstances at a mine outside the mandatory standard promulgation 

process. 7 FMSHRC 1367, 1375 (Sept. 1985); see also Zeigler Coal Co. v. Kleppe, 536 F.2d 

398, 407 (D.C. Cir: 1976) (reasoning that plans are not "to be used to impose general 

requirements of a variety well-suited to all or nearly all coal mines, but rather to assure that there 

is a comprehensive scheme for realization of the statutory goals in the particular instance of each 

mine"). 

83 
describes the code as the "Longwall Return-Side Face Worker." 12 See Stip. Ex. A. In order to 

obtain further understanding of the 060 code, one must refer to yet another document, either the 

Spicer memorandum or the letter sent by District Manager Kuzar to Shoshone in April 1999. 

Gov't Ex. C. to S. Mot. for Summ. Dec., at 3-4; Gov't Ex. 12, at 1-2. Instead of a description of 

duties for the "occupation," the Spicer memorandum imposes a procedure requiring the sampling 

pump to be transferred from miner to miner to ensure that the pump remains at all times with the 

miner working nearest the return air side of the longwall face. Gov't Ex. C. to S. Mot. for 

Summ. Dec., at 4. Failure to adhere to this procedure is the basis of the citations issued in this 

case. 

Second, the imposition of the 060 code has legal effect in that it effectively amends 

sections 70.207(e) and 70.2(f) and reveals a departure from the Secretary's previous 

interpretations. AMC v. MSHA, 995 F.2d at 1112 (stating that a purported interpretive rule has 

legal effect if it effectively amends a prior legislative rule); see also Paralyzed Veterans, 117 

F.3d at 586 (stating that allowing an agency to fundamentally change an interpretation of a 

substantive regulation without notice and comment would undermine those APA requirements). 

Prior to the imposition of the 060 code, MSHA had applied section 70.207(e)(7) to require 

bimonthly sampling of the miner assigned to the occupation that was exposed to the highest 

concentration of respirable dust. Tr. 51-52, 79-80. From 1983 to 1999, MSHA required 

Shoshone to sample the tailgate-side longwall operator (044) as its designated occupation. 23 

FMSHRC at 409. Based upon dust surveys that revealed that the jacksetter was exposed to 

higher dust concentrations than the tailgate-side longwall operator, the Secretary changed the 

designated occupation to the 060. 13 Gov't Ex. 12. By imposing the 060 code, the Secretary 

stopped requiring the sampling of a designated occupation, as the rule requires, and began 

sampling miners based upon their location alone. By so doing, the Secretary effectively 

redefined "designated occupation" from a selected occupation to a selected location. Thus, even 

12 We note that the list of position codes relied upon by the Secretary includes an 

"occupation" code (061), which does not represent a miner at all, but is a bracket in a fixed 

location. Tr. 97-98, 338. In our view, this is not helpful to the Secretary's argument that these 

codes represent valid "occupations" as that term is commonly used. 

13 Our dissenting colleague states that we have implied that the jacksetter occupation 

would be a preferable designated occupation, and that keeping the sampling device with the 

"appropriate jacksetter under that interpretation" could result in more swapping of the device 

than with the 060 code. Slip op. at 20. However, our colleague relies upon a purely hypothetical 

scenario which assumes, for the sake of argument, that the pump would be repeatedly swapped 

between the five jacksetters on the longwall. Tr. 393-94. It is not clear from the record whether 

and to what extent swapping among the five jacksetters would be required if the designated 

occupation were changed to the jacksetter code. See, e.g., Tr. 99, 116, 167-68, 237, 244, 383, 

393. Moreover, the number of swaps by the jacksetter occupation referred to in the dissent is 

based on a ten-hour shift, while the sampling shift is only eight hours. Tr. 414. In any event, we 

do not intimate which job position is mos! suitable as the designated occupation. 

84 
assuming that the Secretary could have initially interpreted section 70.207(e)(7) to support 

imposition of the 060 code, this change in her interpretation requires notice and comment. See 

Alaska Prof'l Hunters Ass'n, 177 F.3d at 1034. 

The Secretary's effective redefinition of designated occupation is further exposed by a 

careful comparison of MSHA's Program Policy Manual ("PPM") to the procedure mandated by 

the Spicer memorandum. In the PPM, the Secretary interpreted section 70.207(e) as requiring 

the sampling device to remain on or at the designated occupation if "the operator's mining 

procedures result in the changing of miners from one occupation to another during a production 

shift." V MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 70, at 8 (1988) (emphasis 

added). As the PPM further notes, this section was designed to address the practice of an 

operator's relieving a miner in the designated occupation by alternating the duties of the 

occupation with another miner. Id. To avoid removing the sampling device from the designated 

occupation for a portion of the shift, the PPM requires that the sampling device stay with the 

miner performing the duties associated with the designated occupation. Id. The 060 code, in 

contrast to the procedure addressed in the PPM, mandates the transfer of the dust pump among 

numerous miners, without regard to occupation, resulting in the sort of artificial reading that the 

PPM guidance was designed to prevent. 

In addition, the Secretary's imposition of the 060 code effectively amends the procedure 

for sampling a designated occupation set forth in section 70.207(e). Default locations for 

sampling the designated occupation on a working face are specified in the subparagraphs of 

section 70.207(e). Nonetheless, by the language of section 70.207(e), the District Manager has 

discretion to direct placement of the sampling device at locations tied to a designated occupation 

other than those so specified.

14 30 C.F.R. § 70.207(e). The imposition of the 060 code subverts 

the active role contemplated for the District Manager in reviewing respirable dust samples and 

ventilation plans. Instead of selecting and validating or redirecting a designated occupation, the 

Secretary has required the sampling of an area that is not tied to an occupation, and which has not 

been shown to have been exposed to the highest dust concentration. 

Finally, we consider the imposition of the 060 code especially appropriate for the APA' s 

notice and comment procedures because the issues implicated would benefit from a "full 

ventilation" demonstrating that MSHA considered relevant factors and alternatives and that the 

"choice it made based on that consideration was a reasonable one." AMC v. Marshall, 671 F.2d 

at 1255. In a rulemaking proceeding, interested persons would have had the opportunity to 

address such issues as whether the repeated passing of the sampling device among a progression 

of miners during a shift would adversely affect the accuracy of the sample or could act as a 

14 Our dissenting colleague suggests that the beginning language of section 70.207(e) 

("Unless otherwise directed by the District Manager .... ")grants MSHA unfettered discretion in 

determining where to conduct dust sampling. Slip op. at 17 & n.5. However, the Secretary does 

not rely on this language of the regulation as the basis for the imposition of the 060 code in this 

case. S. Br. at 11; see also Oral Arg. Tr. 26. 

85 
distraction that has a negative impact on miner safety. The operator in this case also has raised 

questions pertaining to the accuracy of the 060 code as a predictor of miner exposure to 

respirable dust. Sh. Br. at 27-29. In addition, one could conclude that the 060 code effects a 

change in the statutory respirable dust limit because the averaging of peak respirable dust 

exposures would, on average, produce a sample showing a higher level of dust exposure than the 

averaging of a single occupation over a shift. 15 

The failure of the Secretary to submit the revised sampling procedure to the public for 

review and comment has circumvented the thorough evaluation of the 060 code and the rationale 

for departing from the sampling program promulgated in 1981. 16 This is a critical distinction 

between the instant case and AMC v. Marshall. In that case, the petitioner challenged the 

designated area sampling regulations, arguing in part that the regime would effectively lower the 

statutory dust limit, and that the sampling scheme was not reasonably calculated to prevent 

miners' exposure to respirable dust. 671 F.2d at 1255-56. The court upheld the regulations, 

reasoning in part that area sampling allows for the identification and control of dust generation 

sources. Id. at 1257. However, the court was reviewing a substantive rule promulgated after 

notice and comment during which there was a full ventilation of the issues. Id. at 1255. 

AMC v. Marshall therefore does not relieve the Secretary from the requirement to engage 

in notice and comment rulemaking before adopting the 060 code. The Secretary's arguments to 

the contrary disregard both the administrative posture of that case, in which the area sampling 

program had proceeded through notice and comment rulemaking, and the distinct purposes and 

design of the designated area and occupational sampling regulations. The same concerns raised 

in AMC v. Marshall are thus implicated by the imposition of the 060 code without either the 

safeguards provided by rulemaking or the clear foundation grounded on the fundamental bases of 

the area sampling regulations at issue there. Accordingly, the judge's decision is reversed. 

15 The 060 code aggregates peak exposures, effectively eliminating from the sample the 

lower exposures experienced by miners. Tr. 157. Thus, although every miner on an MMU may 

be exposed to less than 2.0 mg/m3 of dust, the mine could nonetheless still be found in violation. 

Sh. Ex. 12. 

16 We also ·are troubled by the fact that the failure to impose the 060 code and its 

attendant requirements through rulemaking creates an untenable situation in which a mandatory, 

generally applicable procedure, having been created by administrative fiat, may be similarly" 

removed or simply ignored unilaterally by the agency without public notice and comment. 

86 
m. 

Conclusion 

For the foregoing reasons, we reverse the judge's decision and vacate Citation Nos. 

9895049 and 4073211. 

87 
Commissioner Jordan, dissenting: 

I would affirm the judge and uphold the citations under review based on the plain 

meaning of 30 C.F.R. § 70.207(e)(7). The enforcement policy at issue here is the Secretary's 

requirement that RAG Shoshone Coal Corporation ("Shoshone") measure the respirable dust on 

its longwall mining section by passing the dust sampler to whichever miner happens to be 

working nearest the return air side of the longwall face. The Secretary's enforcement approach is 

completely congruent with the requirement contained in section 70.207(e)(7), which provides 

that on longwall mining sections respirable dust should be measured by placing the sampling 

device "[o]n the miner who works nearest the return air side of the longwall working face .... " 

30 C.F.R. § 70.207(e)(7). Here, the Secretary's enforcement action stems not so much from her 

interpretation of section 70.207(e)(7) as it does from an application of that standard in 

accordance with its literal terms. Such an enforcement approach based on the regulation's plain 

meaning should be upheld unless it leads to an absurd result or one at odds with the purpose of 

the underlying statute. Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987); Central Sand 

and Gravel Co., 23 FMSHRC 250, 253-54 (Mar. 2001). 

Far from leading to an absurd result, the dust sampling procedure at issue in this case 

directly promotes the protective goal stated in Title II of the Federal Mine Safety and Health Act, 

30 U.S.C. § 801 et seq. (1994) (the "Mine Act"), which is to "permit each miner the opportunity 

to work underground during the period of his entire adult working life without incurring any 

disability from pneumoconiosis or any other occupation-related disease during or at the end of 

such period." 30 U.S.C. § 841 (b ). 1 To accomplish this goal, the statute requires that the average 

concentration of respirable dust in the mine atmosphere not exceed 2 milligrams per cubic meter 

of air. 30 U.S.C. § 842(b)(2). 

To monitor compliance with the 2 milligram standard, Congress has directed operators to 

sample the amount of respirable dust in the mine atmosphere "by any device approved by the 

Secretary. . . and in accordance with such methods, at such locations, at such intervals, and in 

such manner as the Secretar[y] shall prescribe." 30 U.S.C. § 842(a) (emphasis added). 

The Secretary has implemented regulations regarding the placement and submission of 

dust sampling devices. The regulation pertaining specifically to longwall sections is located at 

30 C.F.R. § 70.207(e)(7) and requires the dust sampler to be placed as follows: 

1 This language in the Mine Act was originally articulated in the Federal Coal Mine 

Health and Safety Act of 1969, 30 U.S.C §§ 801, 841 (1976). S. Rep. No. 95-181, at 78, 126-29 

(1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of 

the Federal Mine Safety and Health Act of 1977, at 666, 714-17 (1978). Its current significance 

was emphasized in testimony at trial stating that in 1996 the National Institute of Occupational 

Safety and Health reported that there were still approximately 300 cases of coal workers' 

pneumoconiosis annually. Tr. 227. 

88 
Longwall section. On the miner who works nearest 

the return air side of the longwall working face or along 

the working face on the return side within 48 inches of 

the corner. 

The return air side of the longwall is the most downwind location on that mining section. 

Tr. 35, 230-31." As the majority notes, the return air side is subject to the cumulative effect of 

several dust sources and is undisputably the area on a longwall section that has the greatest 

concentration of respirable dust. Slip op. at 7-8; Tr. 35, 95, 122, 230-1. The Secretary has 

determined that sampling the dustiest work area on the longwall section is the most reliable way 

of protecting all the miners on that section from impermissibly high dust levels. Tr. 48-51, 70. 

By requiring the work area that is downwind and affected by several dust sources to be in 

compliance with the statutory limit, the Secretary believes the operator will effectively protect 

the miners working upwind from overexposure to respirable dust. S. Br. at 17-18; Tr. 51, 70. As 

discussed below, the Tenth Circuit upheld this enforcement approach when considering the 

regulations which required operators to measure respirable dust at known dust generating sources 

that were away from ("outby") the working face, calling the program one that was "reasonably 

calculated to achieve the statutory objective." AMC v. Marshall, 671 F.2d 1251, 1257 (10th Cir. 

1982). 

The citations under review are the result of the Secretary enforcing section 70.207(e)(7) 

according to its explicit terms. She requires the sampling device to be transferred from miner to 

miner so that it will always be on the miner who is positioned "nearest the return air side of the 

longwall working face" at any particular time. S. Br. at 10. The aspect of the Secretary's 

approach that has given rise to this challenge is her insistence that the sampling device be 

transferred from miner to miner, without regard to a miner's job title. Shoshone contends that 

the Secretary can only require the dust sampling device to be passed among miners who hold the 

same "designated occupation." Sh. Br. at 11, 15-16. Shoshone's argument, which my colleagues 

have accepted, is that the Secretary is constrained by the reference to "designated occupation" in 

the prefatory language of section 70.207(a) ("Each operator shall take five valid respirable dust 

samples from the designated occupation in each mechanized mining unit. ... ")and the reference 

to that phrase in the introductory language of section 70.207(e) ("Unless otherwise directed by 

the District Manager, the designated occupation samples shall be taken by placing the sampling 

device as follows .... "). 30 C.F.R. §§ 70.207(a) and (e). 

The relevant standard, however, is located at section 70.207(e)(7). This regulation, which 

contains a very specific directive regarding the placement of the dust sampling device on a 

longwall section, is devoid of any reference to a miner's occupation. Indeed, the sole focus of this 

regulation is the miner's proximity to the return air side of the longwall. Ignoring the regulation's 

plain meaning, however, and citing the need to "harmonize" the dust sampling regulations, my 

colleagues conclude that the Secretary must construe section 70.207(e)(7) as though it too required 

89 
placement of the dust sampler on the basis of a miner's job title, rather than the miner's proximity 

to the return air side of the longwall. Slip op. at 6. Remarkably, although the underlying issue in 

this case concerns the location of the dust sampling device on a longwall section, the majority has 

determined that the Secretary cannot rely on the regulation she drafted to address that very issue. 

By giving precedence to the general introductory language contained in sections 70.207(a) and (e) 

over the explicit directive pertaining to longwall mining contained in subsection (e)(7), my 

colleagues ignore the oft-cited canon of construction that specific provisions govern more general 

ones, not the other way around. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384-85 

(1992) (citation omitted); Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1070 (6th Cir. 1997), 

cert. denied, 520 U.S. 1224 (1997). 

My colleagues conclude that the Secretary can require sampling to be carried out on 

longwall sections only in the same manner that she requires it to be done on other mining sections. 

Slip op. at 5-6. Specifically, they insist the Secretary must select a single job title to be the 

"designated occupation" and require operator sampling only from employees in that job category.2 

Id. What my colleagues fail to discuss, however, is that in each of the other mining methods 

specified in section 70.207(e)(l)-(10), the operator is specifically directed to place the respirable 

dust sampler on the individual holding a particular job title (i.e., "loading machine operator," 

"continuous mining machine operator"). Only with respect to longwall mining is there the much 

more general reference to "miner," and the identification of the miner who is to wear the sampling 

device is based not on the miner's occupation but on the miner's proximity to a designated area -

"the return air side of the longwall face." When certain language is used in one part of a statute 

and different language in another part, it is assumed that different meanings were intended. 2A N. 

Singer, Statutes and Statutory Construction§ 46.06 (6th ed. 2000); see also U.S. v. Maria, 186 

F.3d 65, 71 (2d Cir. 1999) (use of different words in same context strongly suggests different 

meanings were intended) (citations omitted).3 

2 The majority emphasizes the use of the singular form "miner" in section 70.207(e)(7) in 

voicing its objection to the Secretary requiring dust sampling from "a progression of miners." 

Slip op. at 5 (emphasis omitted). The use of the singular form of miner is consistent with and 

indeed is the grammatically correct way to express the method of sampling the Secretary is 

requiring Shoshone to implement since only one miner can be working "nearest the return air 

side of the longwall face" at a time. 

Moreover, the record reflects that pump swapping between miners was often required, 

even when the sampling was carried out by miners within one occupation. For example, if the 

operator assigns one miner to work in the shearer operator portion for the first half of the shift, 

the pump would be switched from the first miner to the second miner so as to have the pump 

remain with the shearer operator. Tr. 115-16, 290, 292, 351-52. 

3 The preamble to the regulations provides further support for the Secretary's contention 

that subsection (7) was intentionally drafted without specifying an occupation. It describes 

section 70.207(e) as "set[ting] forth the job position in most mining systems on which designated 

90 
The reference to "designated occupation" in section 70.207(e) does not preclude the 

Secretary from applying subsection (e)(7) according to that standard's express terms. Section 

70.207(e) is an introductory paragraph that directs the reader to consult the appropriate subsection 

to determine the placement of the respirable dust sampling device, depending on the mining 

method used. The phrase "designated occupation samples" is logically viewed as applying only to 

those subsections in which an occupation is specifically referenced. The phrase does not limit the 

Secretary's ability to require sampling on a longwall to be carried out in accordance with the 

requirements of subsection (e)(7), the subsection which specifically addresses longwall mining. 

Moreover, in light of the express reservation of Secretarial discretion contained in section 

70.207(e)'s introductory language, it seems all the more illogical to consider this provision as 

imposing a limitation on the Secretary's ability to construe subsection (e)(7) according to its plain 

meaning.4 

Section 70.207(a), upon which the majority also relies, concerns the frequency and timing 

of an operator's submission of respirable dust samples. It does not discuss how the sampling 

should occur and therefore the reference to "designated occupation" contained in that regulation 

should not trump the language in section 70.207(e)(7), which specifies a method of sampling on 

longwall sections without regard to a miner's occupation.5 

My colleagues have put forth several reasons why they feel sampling according to 

occupation is preferable to passing a dust pump among a progression of miners who have different 

job titles. Even if the majority's concerns were valid, they would not provide a basis for 

preventing the Secretary from requiring that sampling be conducted according to the method she 

has chosen. "The Secretary is not required to impose an arguably superior sampling method as 

long as the one [s]he imposes is reasonably calculated to prevent excessive exposure to respirable 

dust." AMC v. Marshall, 671 F.2d at 1256; see also Sierra Club v. EPA, 167 F.3d 658, 662 (D.C. 

Cir. 1999) (stating that courts will "generally defer to an agency's decision to proceed on the basis 

of imperfect scientific information, rather than to 'invest the resources to conduct the perfect 

study'") (citation omitted). 

occupation samples are required to be taken, unless otherwise directed by the District Manager." 

45 Fed. Reg. 23990, 23991 (Apr. 8, 1980) (emphasis added). 

4 Section 70.207(e) provides that "Unless othetwise directed by the District Manager, 

the designated occupation samples shall be taken by placing the sampling device as follows 

" 30 C.F.R. § 70.207(e) (emphasis added). 

5 Even if one accepted my colleagues' approach as a plausible reading of the regulations, 

the Commission must nevertheless defer to the Secretary's interpretation "'unless it is plainly 

erroneous or inconsistent with the regulation."' Sec'y of Labor v. Excel Mining, LLC, 334 F.3d 1, 

6 (D.C. Cir. 2003) (citations omitted). 

91 
In point of fact, the record reflects that the procedure the Secretary is requiring Shoshone to 

implement is a superior method of assuring that miners on longwall sections are protected from 

overexposure to respirable dust. Under most mining methods, there is a particular occupation that 

equates to the dustiest environment on the section. See 30 C.F.R. §§ 70.207(e)(l)-(10) discussed 

supra. As longwall mining technology improved, however, the occupation that was exposed to the 

most dust changed. Tr. 79-82, 231-37. When longwalls used a single drum method, the Secretary 

determined that the headgate drum operator was consistently exposed to the highest concentration 

of respirable dust. Tr. 81- 82, 231. Operators were required to submit samples from this 

occupation and, for computer tracking purposes, these samples were identified with the 064 code. 

Tr. 81-82, 231. As longwall mining progressed to double drum shearers, the tailgate shearer 

operator became the position generally exposed to the greatest dust concentrations. Tr. 82, 232. 

The Secretary thereupon required operators to submit samples based on the exposure of this 

occupation and the samples were identified with an 044 code. Tr. 82, 232-33. Further 

developments, such as wider panel faces and alternative shield advancement, meant that miners 

were frequently in different locations during the shift, and were oftentimes further downwind than 

the shearer operator. Tr. 234-37. 

The Secretary concluded that because no single job was consistently performed nearest the 

return air side of the longwall working face at Shoshone's mine, measuring the exposure of only 

one occupation would not provide adequate protection. S. Br. at 13; Tr. 234-44, 247. Requiring 

the sampler to be passed from miner to miner, so that it always remained with the miner nearest the 

return air side of the longwall face, without regard to the miner's occupation, was considered the 

best way of assuring that all miners on the longwall would be protected from excessive levels of 

respirable dust. Tr. 70-71, 95-96, 112-13, 121-22, 127. Samples collected in this manner are 

identified with an 060 code.6 Tr. 95-96, 112-13, 122, 127. 

Although the 060 code is referred to by the Secretary as a designated occupation code, 

it does not correlate to an actual job, as did the 064 code and the 044 code. It represents instead a 

hypothetical occupation. It hypothesizes that there is an occupation that requires a miner to be 

consistently stationed nearest the return air side of the longwall. The fact that there is, in actuality, 

6 Another advantage of the 060 code is that it deters operators from manipulating the job 

duties of individual miners. The Secretary submitted testimony that when a particular occupation 

such as jacksetter was the designated occupation, some operators engaged in "artificial work 

practices" so that the jacksetter would not be required to work downwind of the shearer during 

the cutting of coal. Tr. 167-68, 237. 

Starting approximately 15 years ago, the Secretary has implemented the 060 code on a 

mine-by-mine basi_s, after reviewing the conditions and sampling results at each mine. Tr. 103-

04, 122-24, 166. At the time this case was argued on appeal, sampling in accordance with the 

060 code had been implemented at every longwall mine with the exception of one, where the 

Secretary determined that, based on particular conditions at that mine, the 060 sampling code 

would not be appropriate. Oral Arg. Tr. 44. 

92 
no such occupation is viewed by my colleagues in the majority as fatal to the Secretary's position. 

Slip op. at 6-8. They object that this method of measuring dust abrogates the distinction between 

designated occupational samples and designated area samples. Id. at 7. Moreover, they view the 

method as inherently unfair because the sampling will measure only the peak exposure site and not 

the peaks and valleys of exposure to respirable dust that any individual miner would actually 

encounter as he or she went about his or her job. Id. 

Concerns identical to those expressed by my colleagues were considered and rejected by 

the U.S. Court of Appeals for the Tenth Circuit. In AMC v. Marshall, mine operators challenged 

dust sampling requirements that sought to measure dust in areas outby the working faces. 671 F.2d 

at 1254. Studies showed that it was not just _working faces which posed a hazard to miners in term 

of exposure to respirable dust, and the rules required operators to place dust sampling devices near 

known outby dust generation sources. Id. The court noted that the overall approach of this 

program was "analogous to" the program designed to measure the dust at the working faces, the 

operating principle of both programs being "if the atmosphere in the area of a known dust 

generation source is in compliance with the statutory standard, then it can be safely presumed that 

all miners are protected from overexposure." Id. 

The Court then considered the argument that the designated area samples were invalid 

because they did not measure the concentration of dust within an individual's breathing zone. Like 

the samples collected in the instant case under the 060 code, the samples challenged in the AMC 

case measured the dust breathed by a "hypothetical miner" who was assumed to remain in the 

dustiest part of the area being measured for the entire shift. Id. at 1256 n.9. Similarly, like the 

petitioner in this case, the operators in the Tenth Circuit proceeding objected to the fact that under 

the challenged method "an operator might conceivably be cited for a violation of the 2 mg./m3 

standard on the basis of area samples even though no individual miner was exposed to more than 

2mg./m3 of respirable dust during a shift." Id. at 1256. Unlike the majority in this case, however, 

the Tenth Circuit found neither argument a reason to invalidate the sampling procedure under 

review. 

My colleagues have attempted to distinguish the AMC case. They contend the Tenth 

Circuit's opinion is unpersuasive because it concerns "designated area" sampling of the outby 

sections of the mine, while the instant case involves "designated occupation" sampling at the 

working face. This is a distinction without a difference. The very terms of section 70.207(e)(7) 

already contradict the notion there is a bright line that separates occupational and area sampling, as 

the regulation provides that the sampling device need not be placed on a miner, but can instead be 

placed "along the working face on the return side within 48 inches of the corner." 30 C.F.R. 

§ 70.207(e)(7). In fact, each of the 10 subsections of section 70.207(e) covering the different 

mining systems permit operators to use a similar "location" alternative as part of occupation 

sampling. 30 C.F.R. § 70.207(e)(l)-(10); Tr. 74. Designated occupation sampling is not carried 

out for the purpose of determining the exposure of an individual miner, or even the exposure of a 

particular occupation. Even when the sampling is carried out by a single miner, its purpose is to 

provide assurance that the mine atmosphere is safe for every miner working at the face. Tr. 70. It 

93 
was for this reason that the Tenth Circuit concluded that "[t]he designated occupation sampling 

program is itself an area sampling program." AMC v. Marshall, 671 F.2d. at 1256. The majority 

also ignores the fact that the Commission has likewise concluded that "the designated occupation 

sampling program contained in section 70.207(a) is an area sampling program, not a personal 

sampling program." New Warwick Mining Co., 18 FMSHRC 1365, 1368 (Aug. 1996).7 

The majority opinion argues that the Secretary's policy is burdensome, requiring the 

transfer of the dust pump possibly 40 times in an eight-hour shift. Slip op. at 8. It implies that 

perhaps designating the jacksetter occupation would be preferable, citing dust surveys that revealed 

that the jacksetter was exposed to higher dust concentrations than the tailgate side longwall 

operator. Id. at 10. Shoshone itself estimates, however, that keeping the device with the 

appropriate jacksetter under that interpretation of the regulation would result in six transfers of the 

device among the five MMU-008-0 jacksetters during each hour-long longwall cutting cycle, 

which would result in approximately 48 to 60 transfers during a normal 10-hour shift. Tr. 393-97, 

414-15. Thus, the 060 code would result in fewer transfers per shift than the alternative 

interpretation of section 70.207(e)(7) adopted by the majority.8 

Focusing on the Secretary's decision to label the challenged sampling method for computer 

tracking, my coJleagues contend the Secretary must engage in notice and comment rulemaking 

before she can impose the 060 code. Slip op. at 8-12. As I have pointed out earlier, the manner in 

which the Secretary is requiring sampling to be conducted is consistent with a literal application of 

Section 70.207(e)(7).9 That standard was promulgated pursuant to notice and comment rulemaking 

and provides an adequate legislative basis for the Secretary's issuance of the subject citation. 

In fact, the allegation that the Secretary's interpretation of the regulation has changed at aJl 

is simply a red herring. Notwithstanding that contention, the Secretary's interpretation of section 

70.207(e)(7) has remained constant. As I have discussed, supra at 18-19, changing technology and 

varying circumstances at different mines could affect who "the miner who works nearest the return 

air side of the longwall working face" may be. In such cases, the standard and its legal 

interpretation are not altered - the only difference is a change in mining conditions affecting 

7 The preamble that accompanied the publication of the respirable dust rules indicated 

that the Secretary considered designated occupation sampling to be a "method of area sampling." 

45 Fed. Reg. at 23998. 

8 Notably, Shoshone's longwall production supervisor stated he did not have a problem 

with sampling in accordance with the 060 code. Tr. 295. When asked what he would do if he 

had a choice between sampling 044 (tailgate operator) and 060 he responded "[w]ell actually, I 

wouldn't make the _choice. I think sampling both locations would be good." Tr. 299. 

9 This puts the Secretary in the novel position of being ordered to go through notice and 

comment rulemaking to produce a result that would duplicate the rule already located at section 

70.207(e)(7). 

94 
which miner meets the description in the regulatory language. 

Thus, although Shoshone is now being required to pass the sampling pump among miners 

of different job titles, the Secretary's approach has not changed. She has always required the 

personal sampling device to be worn so it would measure the area of greatest concentration of 

respirable dust on the section, so that if that sample were in compliance, the Secretary could 

reasonably conclude that the rest of the miners on the section were working in an atmosphere that 

was within the 2 milligram standard. Tr. 50-51. 

For the foregoing reasons, I respectfully dissent. 

95 
Distribution 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

One Oxford Centre 

301 Grant St., 2o•h Floor 

Pittsburgh, PA 15219-1410 

Jack Powasnik, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22"d Floor West 

Arlington, VA 22209-2247 

Administrative Law Judge August Cetti (retired) 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

1244 Speer Blvd., Suite 280 

Denver, CO 80204 

96 
ADMINISTRATIVE LAW JUDGE DEOSIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, DC 20001 

February 4, 2004 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 2003-59-M 

A.C. No. 17-00282-05504 

v. 

P.R. CARROLL, INCORPORATED, 

Respondent 

Limerick Pit & Mill 

DECISION 

Appearances: Kathryn A. Joyce, Esq., Office of the Solicitor, U.S. Department 

of Labor, Boston, Massachusetts, for the Petitioner; 

Before: 

Francis R. Carroll, President, F.R. Carroll, Inc., Limerick, Maine, 

for the Respondent. 

Judge Feldman 

This proceeding concerns a petition for assessment of civil penalty filed 

pursuant to section l lO(a) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 

30 U.S.C. § 820(a), by the Secretary of Labor (the Secretary), against the respondent, 

F.R. Carroll, Incorporated. Francis R. Carroll (Carroll), the corporate president, 

appeared on behalf of the respondent. The Secretary proposes a civil penalty of $250.00 

for Citation No. 4569275 for an alleged violation of section 103(a) of the Mine Act, 

30 U.S.C. § 813(a). This statutory provision grants Mine Safety and Health Administration 

(MSHA) inspectors the right of entry to any mine without advance notice of an inspection. 

This matter was heard on October 1, 2003, in Portland, Maine. The Secretary filed 

a post-hearing Memorandum of Law. At the hearing, Carroll waived the right to file a 

post-hearing brief. (Tr. 145). For the reasons discussed, Citation No. 4569275 shall be affirmed. 

With respect to the appropriate civil penalty, Commission judges assess penalties de novo and are 

authorized to reduce or increase the penalty proposed by the Secretary as circumstances warrant. 

Topper Coal Co., 20 FMSHRC 344, 350 n.8 (April 1998); Sellersburg Stone Co., 5 FMSHRC 

287, 291 (March1983), aff'd 736 F.2d 1147 (7th Cir. 1984). As detailed below, a civil penalty of 

$500.00 shall be assessed for Citation No. 4569275 because of the seriousness of the gravity of 

the violation, and because the respondent's conduct was willful, unjustifiable and inexcusable. 

97 
I. Findings of Fact 

The Limerick Pit and Mill is a sand and gravel facility located in Limerick, Maine. 

It is operated by Francis Roger Carroll, who, as noted, is the corporate president. Michael P. 

Carroll, Carroll's son, is the vice-president. (Tr. 8-9). The facility consists of a processing 

plant where material is crushed and screened, and a quarry and off-site pits that are located 

approximately five miles from the processing plant. (Tr.81). Operations at the plant 

include concrete and asphalt production. Carroll' business employs approximately 63 people, 

14 of whom work in mining operations. Some employees work both asphalt production and 

mining tasks. (Tr. 80). Carroll has operated his business since 1952. Carroll testified that 

MSHA inspectors have inspected his facility once or twice each year since 1970. (Tr. 82). 

At the gravel pit equipment is used to remove material from the ground. At the quarry 

material is extracted by drilling and blasting. In both instances, after the material is removed 

from the earth, it is loaded and hauled by truck to the processing plant. (Tr. 17, 18, 81). 

There various products including crushed stone, asphalt, concrete, and sand and gravel are 

produced. These products are sold to the general public as well as public municipalities 

for road construction. (Tr. 18). 

Donald Fowler has been an MSHA inspector for 27 years. He is assigned to MSHA's 

Northeastern District Office in Manchester, New Hampshire. To ensure compliance with safety 

and health standards, section 103(a) of the Mine Act requires MSHA to inspect underground 

mines at least four times a year, and surface mines at least twice a year. Fowler was scheduled to 

inspect the Limerick facility for a mandated semi-annual inspection on September 10, 2002. 

During this quarter, Fowler was responsible for inspecting a total of 80 mines. (Tr. 19). 

On September 10, 2002, Fowler arrived at the Limerick pit at approximately 7:35 a.m. 

Because of his past experience, Fowler went directly to the pit rather than stopping at Carroll's 

office. Fowler explained that if he went to Carroll's office, he would have to wait for Carroll 

before he was permitted to start his inspection. In the past, Fowler had to wait for up to 

45 minutes before Carroll ~as available. Fowler opined that delaying an inspection once the 

arrival of an inspector is known can compromise the effectiveness of an inspection. (Tr. 20-25). 

Upon his 7:35 a.m. arrival at the pit, Fowler remained in his vehicle for approximately ten 

minutes to prepare his inspection paperwork. During this time, Fowler observed an excavator 

operator loading three trucks with material for removal to the plant. At approximately 7:45 a.m., 

Fowler approached the excavator operator, identified himself, and asked the operator whether he 

could communicate with Carroll to notify him of Fowler's presence. The operator replied that he 

would contact Carroll to inform him Fowler was on site. (Tr. 30). 

Shortly before 8:00 a.m., approximately ten minutes after Fowler's conversation with the 

excavator operator began, Carroll arrived at the pit. (Tr. 31-33). Upon his arrival, Carroll 

expressed concern that Fowler did not initially stop at Carroll's office before proceeding to the 

pit. (Tr. 34). Despite MSHA inspections since 1970, Carroll asserted to Fowler that he was not 

allowed on mine property without a search warrant, and that he was a trespasser. (Tr. 34). 

98 
Fowler tried to explain that he was attempting to conduct an inspection as required by 

statute. Carroll replied that he had a previous appointment, and that he couldn't accompany 

Fowler on his inspection until 1:00 p.m. that afternoon. (Tr. 34-35). Carroll testified he had a 

9:30 a.m. appointment with Ted Jones, a lobbyist for Maine Aggregate. (Tr. 84). 

Fowler informed Carroll that he could not wait four hours to begin his inspection. 

He provided Carroll with a copy of the Mine Act, explaining that he had a right to conduct 

his inspection without a search warrant. (Tr. 34-36). 

Carroll testified that, shortly after arriving at the pit, he radioed his son Michael, 

instructing him to call the Sheriff's Department to send an officer to the mine site. (Tr. 95). 

A few minutes after Fowler began his conversation with Carroll, Michael arrived at the pit. 

Carroll testified that Michael Carroll was too busy to accompany Fowler on his inspection 

because "he was buried in [paperwork] records" and "we have to get the work out the door." 

(Tr. 97, 103). 

The conversation concerning Fowler's right of entry continued during which time Carroll 

advised that he had called the York County Sheriff to have Fowler removed from the property. 

Shortly thereafter, a York County Sheriff arrived at the scene. (Tr.37). It soon became 

apparent that the Sheriff did not know what to do after Fowler identified himself as a federal 

official authorized to carry out his duties under federal law. The Sheriff requested back-up 

assistance. (Tr. 37-38). Carroll testified: 

The Sheriff, when he got there, he didn't know what to do with 

him, and I knew he wouldn't know what to do with him. He said 

to me, I can't throw him off, I can't. 

(Tr. 90). Within minutes, another Sheriff, who appeared to be a senior officer, arrived and took 

charge of the scene. (Tr. 38). 

Carroll and Fowler explained their respective positions to the Sheriffs. (Tr. 39). 

The lead Sheriff then asked Fowler if he would leave the premises. Fowler replied "no." 

(Tr. 39-40). Fowler explained to the Sheriffs that he had jurisdiction and that he was not leaving 

the property at the Sheriff's request. (Tr. 40). Fowler then turned to Carroll and Michael and 

said," ... I'm going to ask you one more time with the county sheriffs as my witnesses ... to let 

me continue this inspection .... " (Tr. 40). Carroll refused. (Tr. 40). Consequently, Fowler 

verbally issued a citation for denial of entry and left the mine property. The time was 8:35 a.m. 

(Tr. 70-71 ). 

99 
It is MSHA policy for inspectors to immediately advise superiors of a denial of entry. 

Thus, after exiting the mine site, Fowler drove into town to telephone Donald Foster of the 

District Office in Warrendale, Pennsylvania, the office to which the New Hampshire region 

reported. (Tr. 41). After discussing the morning's events, Foster instructed Fowler to issue a 

written citation citing section 103(a) of the Mine Act for denial of entry. (Tr. 41-42). 

Upon completing the citation, Fowler telephoned Foster to communicate the contents 

of the citation for Foster's approval. MSHA policy requires that a written citation for a 

section 103(a) violation must be served on the party denying entry. Fowler contacted the 

Sheriff's Department to advise that he was returning to the mine site to serve the citation. 

(Tr.45-46). 

Fowler returned to the mine site at approximately 1 :00 p.m. and went directly to Carroll's 

office. Fowler told Carroll that he needed to discuss the citation and he presented Carroll with 

Citation No. 4569275 citing a violation of section 103(a) of the Mine Act. Carroll invited 

Fowler into his office whereupon Fowler testified the two had a "real good conversation" about 

MSHA's role with particular emphasis on the right of entry. (Tr. 46-47). The meeting ended 

with Carroll inquiring when Fowler could return to perform his inspection. Fowler replied that 

he could not tell him when the inspection would be. In view of Carroll's representation that he 

would permit an inspection, Fowler terminated Citation No. 4569275 at 1:33 p.m. and left the 

mine site. (Gov. Ex. l; Tr. 48). Fowler subsequently inspected Carroll's facility and did not 

observe any violations. 

Carroll testified that he would like "to be treated like a human being," and that he 

objected to "Gestapo" tactics. (Tr. 85, 88). He expressed frustration over being over-regulated 

by numerous state and federal agencies. (Tr. 87-88). Carroll testified, "I can't understand 

why we are here today" because after five hours, at 1 :30 p.m. on September 10, 2002, when 

Citation No. 4569275 was terminated, he "had agreed to the inspection continuing." (Tr. 92). 

II. Pertinent Case Law and Statutory Provisions 

As a threshold matter, it is well settled that sand and gravel quarries are governed by the 

Mine Act because they affect commerce even if they are primarily intrastate in nature. See, e.g., 

Jerry Ike Harless Towing, Inc, 16 FMSHRC 683, 686 (April 1994) citing Fry v. United States, 

421U.S.542, 547 (1975) and Wickard v. Filburn, 317 U.S. 111 (1942). Carroll does not assert 

that his quarry business does not affect interstate commerce, or, that his business activities 

consisting of the extraction and processing of sand a gravel, are not subject to Mine Act 

jurisdiction. 

100 
The U.S. Supreme Court has recognized that section 103(a) of the Mine Act authorizes 

warrantless inspections by granting MSHA inspectors the right of entry to, upon, or through any 

mine, without advance notice, to determine if there is compliance with mandatory health and 

safety standards. Donovan v. Dewey, 452 U.S. 594, 596 (1981); see also Unites States Steel 

Corp., 6 FMSHRC 1423, 1430-31 (June 1984). The Court explained: 

[It is] clear that a warrant may not be constitutionally required 

when Congress has reasonably determined that warrantless 

searches are necessary to further a regulatory scheme and the 

federal regulatory presence is sufficiently comprehensive and 

defined that the owner of commercial property cannot help but be 

aware that his property will be subject to periodic inspections 

undertaken for specific purposes. 

Dewey, 452 U.S. at 600. 

Consistent with Dewey, the Commission has long held that a mine operator's refusal to 

permit inspections is a violation of section 103(a). Waukesha Lime & Stone Co., Inc., 3 

FMSHRC 1702, 1703-04 (July 1981); United States Steel, 6 FMSHRC 1423, 1430-31 (June 

1984); Calvin Black Enterprises, 7 FMSHRC 1151, 1156 (August 1985). However, MSHA's 

entry is not absolute. In Dewey, the Court acknowledged a mine operator's right to demonstrate, 

in an adjudicative forum, that a specific inspection is outside federal regulatory authority because 

of "unusual privacy interests" such as the potential disclosure of trade secrets. 452 U.S. at 604-

05. 

When mine entry is denied, the Secretary may pursue injunctive relief, or, as in the instant 

case, bring a civil penalty action before the Commission alleging a violation of section 103(a) of 

the Mine Act. Waukesha, 3 FMSHRC at 1703-04. The party denying entry may defend its 

action in a neutral adjudicative proceeding. If it is determined that there is no justification for 

the denial of entry, injunctive relief or civil penalties may be imposed. 

III. Further Findings and Conclusions 

A mine operator denying entry, particularly an operator like Carroll's business that has 

been inspected by MSHA for over 30 years, does so at its own "legal peril" absent a showing of 

"unusual privacy interests." Secy. of Labor v. Tracey & Partners, 11 FMSHRC 1457, 

1462 n.3 (August 1989). It has neither been contended nor shown that Fowler's attempted 

inspection on the morning of September 10, 2002, was an unwarranted invasion of Carroll's 

privacy. Rather, the sole basis for Carroll's denial of entry was that both he and his son were too 

busy to accompany Fowler on his inspection. 

101 
The importance of unannounced inspections proceeding without delay is self-evident. 

Such inspections encourage compliance by preventing mine operators from concealing hazardous 

violations upon learning that mine inspectors have arrived on the premises. Thus, Carroll's 

insistence on delaying Fowler's inspection five hours until 1:00 p.m. must be viewed 

as unreasonable. If Carroll and his son were "too busy" to accompany Fowler, then it was 

incumbent on Carroll to designate someone else to accompany Fowler. If Carroll could not find 

someone to fulfill this role, Carroll was obliged to permit Fowler to conduct his inspection 

unaccompanied. 

In considering the conduct of Fowler and Carroll, there was nothing in Fowler's behavior 

on September 10, 2002, that demonstrates overreaching or an abuse of discretion. Upon arriving 

at the mine site, Fowler promptly requested the excavator operator to notify Carroll of his 

presence. Fowler explained the mandatory inspection requirements specified in section 103(a) 

of the Mine Act. Fowler repeatedly asked Carroll to allow him to proceed with his inspection, 

explaining why Carroll's request that he return at 1:00 p.m. could not be granted. In apparent 

recognition that the Mine Act prohibits forcible entry, Fowler voluntarily left mine property to 

avoid further confrontation. 30 U.S.C. § 818. Finally, Fowler did not charge Carroll with any 

violations of mandatory safety standards during the inspection that followed Carroll's denial of 

entry reflects that Fowler harbored no ill will towards Carroll. 

In contrast, there are no mitigating circumstances to justify Carroll's conduct. After all, 

Carroll's mine had been inspected by MSHA since 1970. As the Court noted in Dewey, 

a mine operator "cannot help but be aware that his property will be subject to periodic 

inspections." 452 U.S. at 600. Carroll's concession that he knew the Sheriff "would not know 

what to do with [Fowler]" demonstrates that Carroll recognized Fowler was a federal official 

who was acting within the scope of his authority. (Tr. 90). In the final analysis, Carroll created 

an awkward confrontation between federal and local officials by his insistence that the Sheriff 

remove Fowler from mine property although Carroll knew, or should have known, his request 

was unreasonable. This entire incident occurred because Fowler's inspection apparently was an 

inconvenience. As discussed above, Congress mandated that section 103(a) periodic inspections 

are to be unannounced. Mine operators must permit such inspections to occur unimpeded and 

without delay. Accordingly, Citation No. 4569275 IS AFFIRMED. 

IV. Civil Penalty 

As noted, Commission judges assess civil penalties de novo, and they are not bound 

by the Secretary's proposed assessments. Topper Coal, supra; Sellersburg Stone, supra. 

In determining the appropriate civil penalty to be assessed, Commission Rule 30, 29 C.F.R. 

§ 2700.30, requires the judge to consider the statutory criteria set forth in l lO(i) of the Mine Act, 

30 U.S.C. § 820(i) .. In determining the appropriate civil penalty, section llO(i) provides, 

in pertinent part: 

102 
the Commission shall consider the operator's history of previous 

violations, the appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated good 

faith of the person charged in attempting to achieve rapid 

compliance after notification of a violation. 

a. Size of Operator and Ability to Remain in Business 

The respondent is a small to moderate mine operator. Carroll does not contend that 

imposition of a reasonable civil penalty in this matter will adversely affect his business' 

continued viability. 

b. Negligence 

With respect to negligence, Carroll's conduct was willful, unjustifiable and inexcusable. 

Given the 30 year history of mine inspections, Carroll's unreasonably created a confrontation 

between federal and local officials although Carroll knew, or should have known, that Fowler 

was authorized to conduct an inspection without a search warrant. 

c. Gravity 

The gravity penalty criterion contained in section l lO(i) requires an evaluation of the 

seriousness of the violation. Hubb Corporation, 22 FMSHRC 606, 609 (May 2000) citing 

Consolidation Coal Co., 18 FMSHRC 1541, 1549 (September 1996); Sellersburg, 5 FMSHRC at 

294-95. In evaluating the seriousness of a violation, the Commission focuses on "the affect of a 

hazard if it occurs." Consolidation Coal Co., 18 FMSHRC at 1550. Here, refusing to allow an 

inspection creates the potential that hazardous conditions that expose mine personnel to the risk 

of serious injury will continue to exist. Consequently, the violation is indicative of extremely 

serious gravity. 

d. History of Previous Violations 

Fowler testified that Carroll's mine facility operates in accordance with safety and health 

standards. Significantly, Fowler did not observe any violations of mandatory safety standards 

during the inspection that followed Carroll's denial of entry. Fowler further testified that the 

mine facility has an excellent record with respect to its history of previous violations. 

e. Good Faith Efforts at Abatement 

As noted, ·carroll's conduct cannot be condoned. Carroll's continued refusal to permit 

Fowler to perform the inspection was unreasonable and in bad faith. Carroll's belated consent to 

an afternoon inspection is not a mitigating factor. 

103 
When considering the penalty criteria in their entirety, the undisputed facts in this case 

warrant a higher penalty than the $250.00 civil penalty initially proposed. As the Commission 

has stated, a mine operator denies entry at its own legal peril. Tracey & Partners, I I FMSHRC 

at 1462 n.3. With the exception of Carroll's excellent safety record, there are no mitigating 

circumstances. Carroll's disingenuous insistence that the Sheriff escort Fowler off mine property 

because "he's trespassing" presents a compelling case for increasing the proposed penalty. 

(Tr. 90). Consequently, a civil penalty of $500.00 shall be imposed for Citation No. 4569275. 

As a final note, I have exercised restraint. Although the assessed $500.00 civil penalty 

is double that initially proposed by the Secretary, it only increases the civil penalty by $250.00, 

and, there is no evidence that it will cause financial hardship. Hopefully this relatively small 

increase in penalty is enough of a deterrent to encourage future cooperation and compliance. 

ORDER 

Accordingly, IT IS ORDERED that Citation No. 4569275 IS AFFIRMED. 

IT IS FURTHER ORDERED that F. R. Carroll, Incorporated, shall pay a civil penalty 

of $500.00 in satisfaction of Citation No. 4569275. Payment shall be made within 40 days 

of the date of this decision. Upon timely payment of the $500.00 civil penalty, Docket 

No. YORK 2003-59-M IS DISMISSED. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Kathryn A. Joyce, Esq., Office of the Solicitor, U.S. Department of Labor, 

E-375, John F. Kennedy Federal Bldg., Boston, MA 02203 

Francis R. Carroll, President, F.R. Carroll, Inc., P.O. Box 9, Limerick, ME 04048 

/hs 

104 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844--3577/FAX 303-844-5268 

February 18, 2004 

LESLIE 0. GLEASON, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. WEST 2003-265-D 

DENV CD 2003~03 

COLOWYO COAL COMPANY, 

Respondent 

Mine I.D. 05-02962 

Colowyo Mine 

Appearances: 

Before: 

DECISION 

Leslie 0 . Gleason, Bagdad, Arizona, prose; 

Laura E. Beverage, Esq., Jackson Kelly, Denver, Colorado, 

for Respondent. 

Judge Manning 

This case is before me on a complaint of discrimination brought by Leslie 0. "Jack" 

Gleason against Colowyo Coal Company ("Colowyo"), under section 105(c)(3) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). Mr. Gleason 

alleges that Colowyo terminated him from his employment with the company because of 

protected activities he engaged in while an employee of Colowyo. An evidentiary hearing was 

held in Steamboat Springs, Colorado. 

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND 

FINDINGS OF FACT 

Colowyo operates the Colowyo Mine, an open pit coal mine, near Meeker, Colorado. Mr. 

Gleason contends that he was forced to leave Colowyo, by taking long term disability benefits, 

because he complained about safety conditions at the mine starting in January 2001. After 

Gleason presented his case in chief at the hearing, I granted Colowyo's motion to dismiss 

Gleason's discrimination complaint for failure to present a prima facie case. My reasons for 

granting Colowyo's motion are set forth below. Prior to the hearing, the parties entered into 

detailed stipulations, as follows: 

1. Mr. Gleason wa~ employed at the Colowyo site from March 6, 1978, until October 11 , 

2002. 

2. Kennecott Energy acquired the Colowyo site in December 1994. 

105 
3. Mr. Gleason was an electrical planner at the time of a reorganization in June 1999 and 

was offered a buyout, along with other personnel. 

4. Mr. Gleason declined the buyout option and instead opted to become an electrician. 

5. Mr. Gleason was the lead electrician until approximately August 2000, when Tim Buller 

was moved into the role of electrical supervisor. 

6. Mr. Gleason commenced having knee problems in approximately 1997, which problems 

were later diagnosed as the result of misaligned kneecaps. 

7. Mr. Gleason took Family and Medical Leave to have surgery on his left knee 

commencing September 29, 2000, through October 25, 2000. 

8. Mr. Gleason returned to work with medical restrictions on October 26, 2000, following 

his knee surgery and remained on restricted duty until December 21, 2000. The 

restrictions included the following: no climbing; no kneeling; no squatting; and no lifting 

greater than ten (10) pounds. 

9. Mr. Gleason took Family and Medical Leave on January 20, 2001, to undergo urology 

surgery and remained off work until March 1, 2001. He returned to work on restricted 

duty until March 12, 2001. The restrictions included the following: no climbing and no 

lifting greater than ten (10) pounds. 

10. Mr. Gleason's knee problems continued to deteriorate after his surgery ... and he was 

placed on work restrictions on September 27, 2001. The restrictions included the 

following: no climbing; no lifting objects greater than 20 pounds; no carrying of objects 

greater than 20 pounds; no pushing of objects greater than 20 pounds; and no pulling of 

objects greater than 20 pounds. 

11. Mr. Gleason remained on restricted duty for his knee problems until he took Family and 

Medical Leave on February 14, 2002, for additional surgery on both knees. 

12. Mr. Gleason remained off work as a result of this February 14, 2002, knee surgery until 

May 24, 2002, when he returned to work with restrictions. These restrictions included the 

following: no carrying of objects greater than 20 pounds; no pushing of objects greater 

than 20 pounds; no pulling of objects greater than 20 pounds; no crawling, kneeling, or 

squatting; no climbing of stairs or ladders; and the avoidance of uneven ground. 

13. On May lS, 2002, while Mr. Gleason was recovering from his surgery, Colowyo 

requested an opinion of Mr. Gleason's ability to return to work, based on the physical 

106 
demands analysis of the electrician position, from his physician to ascertain his fitness for 

work. 

14. On May 23, 2002, Dr. Sisk issued a release to work with restrictions of carrying less than 

ten (10) pounds; pushing or pulling less than ten (10) pounds; no crawling, kneeling or 

squatting, no climbing of stairs or ladders; and a notation that Mr. Gleason should be able 

to return to full duties within three (3) months. 

15. On July 21, 2002, Mr. Gleason underwent eye surgery for a detached retina and remained 

off work until July 26, 2002, when he returned to work with restrictions. The restrictions 

included the following: no heavy lifting, jumping or jarring activity; and no lifting 

greater than 50 pounds. 

16. Mr. Gleason remained on restricted duty for his eye and knee problems until October 11 , 

2002, when he left Colowyo and applied for long term disability. · 

17. On September 13, 2002, Colowyo requested a functional capacity evaluation from Mr. 

Gleason's physician, Dr. Sisk, to determine his physical fitness for duty. 

18. The functional capacity evaluation limited Mr. Gleason from crouching, kneeling, ladder 

climbing, crawling, or lifting. The functional capacity evaluation noted the following 

specific weight limits: from floor to waist a weight limit to 40 pounds throughout the 

day, 50 pounds occasionally, and no more than 70 pounds infrequently. The evaluation 

also limited Mr. Gleason lifting from waist level to overhead heights as follows: 30 

pounds on a consistent basis, 50 pounds occasionally, and no more than 70 pounds 

infrequently. [The evaluation also included restrictions on lifting, specific carrying 

restrictions, and other restrictions.] 

19. On September 30, 2002, his physician requested that Mr. Gleason be placed in a position 

meeting his physical limitations. 

20. Mr. Gleason's restrictions identified in Nos. 8-12 and 14-18 of these stipulations 

precluded him from performing the duties of an electrician at Colowyo. 

21. While on restricted duty identified in Nos. 8-12 and 14-18 of these stipulations, Mr. 

Gleason was assigned tasks other than those of an electrician, including the provision of 

assistance to the safety department. However, he continued to be paid his hourly rate as 

an electrician while on restricted duty, and Colowyo did not fill his position as an 

electrician during his performance of restricted duty. 

22. On October 11 , 2002, Mr. Gleason worked his last day at the Colowyo site. 

107 
23. For a six (6) month period beginning on October 12, 2002 and ending on April 11, 2003, 

Kennecott Energy paid Mr. Gleason salary continuation benefits at his full pay rate of 

$23.63 per hour. 

24. On October 29, 2002, Colowyo requested that Mr. Gleason be evaluated for Long Term 

Disability benefits which he qualified for and which were initiated in April 2003 after his 

salary continuation benefits expired. This request was not motivated by any protected 

activity under the Mine Act. 

25. Mr. Gleason's Long Term Disability benefit was one half of.his hourly rate as an 

electrician. 

26. Mr. Gleason commenced work as an electrician at Phelps Dodge Corporation's Bagdad 

Mine in Arizona on July 28, 2003. That position does not require that he work on a 

dragline and in that position he can access equipment that is equipped with hydraulic lifts, 

rather than stairs and ladders. His pay rate in this position is $18.30 an hour. 

(See Tr. 114). 

In his complaint of discrimination and at the hearing, Mr. Gleason presented facts to 

show that he engaged in protected activity. His evidence can be summarized as follows: 

On or about January 23, 2001, Colowyo posted a position opening for a maintenance 

supervisor. (Tr. 74; Ex. G-lB). Gleason raised objections about this posting to Gene Bryant, the 

director of the human resources department. Gleason did not apply for the position but raised 

questions about the wording in the job description. He believed that, becaus~ the position 

supervised electrical repairs, only people with an electrical qualification card would be able to 

apply for the position. He believed that this requirement was too restrictive and that employees 

who were not certified electricians should be able to qualify. (Tr. 76). Bryant and Joe Vaccari, 

the manager of operations and maintenance, believed that the language in the job posting was 

acceptable and that the position was open to anyone, not just qualified electricians. 

Paradoxically, although Gleason testified that he thought that the position should be open to nonelectricians, he was also concerned about non-electricians supervising electricians. (Tr. 77). The 

position was filled with a non-electrician. 

On March 14, 2001 , Tim Buller, the electrical supervisor at the time, assigned Gleason 

the responsibility to conduct a thorough electrical inspection of the mine. Gleason was chosen to 

perform this work, in part, because of his extensive knowledge of 30 C.F.R. Part 77 and the 

National Electrical Code ("NEC"). Part of Gleason's responsibility was to look for violations of 

MSHA's electric~! standards in Part 77. Gleason tagged a number of items in the water filtration 

plant that he believed violated the NEC. During the course of this inspection, Gleason became 

concerned about electric panels in the filtration plant. He observed standing water on the deck of 

this plant and he knew that water was used to wash down the walls of the plant. (Tr. 78-80). The 

108 
electric distribution panels in the plant were panels that are typically used in dry environments. 

The panels showed some signs of corrosion from the moisture or the chlorine. He believed that 

because the plant was a "wet/damp" environment a different type of electric distribution panels 

should be installed. Gleason wrote a "red tag" for the condition, but he did not hang it. (Tr. 79). 

Instead, Gleason went to the mine office and got Tim Buller out of a cost meeting to discuss the 

situation with him. Buller and Kimberly Wolf, an envirohmental engineer, went to the filtration 

plant with Gleason to observe the conditions. Id. 

The filtration plant had been in this condition for about ten years. (Tr. 36). After looking 

at the electrical system in the plant, they realized that they could not cut the power to the plant 

because the mine-wide radio system obtains its power from the same distribution panel. Gleason 

suggested that notice be given to electricians through a notation in the electrical inspection book. 

(Tr. 80; G-lC). The notation, written by Buller, states as follows: 

Filtration plant. Many of the electrical enclosures are only 

classified as dry location equipment. This area is washed down 

occasionally so it will need to be wired for wet location. I have 

spoken to engineering about replacing this plant later this year. I 

don't believe that there are any safety hazards, but it should be 

fixed. 

(Ex. G-lC). Employees working in the filtration plant were also warned. (Tr. 123). Colowyo 

had ongoing plans to replace the filtration plant, but as of January 2004 , its appears that the 

existing plant was still being used with the same electric distribution panels. 

Gleason testified that about two weeks later, Buller told him that Bryant and Vaccari 

wanted to meet with him. Gleason met with the two managers in the human resources 

department office. The managers asked him if there had been any problems when he moved 

from an electrical planner to an electrician. As set forth in the stipulations, during a company 

reorganization in June 1999, Gleason was demoted from the position of electrical planner to an 

electrician position. Vaccari complained that Gleason did not know how to "take care of the 

boss." (Tr. 82). Both managers told him that he was too aggressive and confrontational. Id. 

Gleason believed that management was asking him to "work more cooperatively with my 

supervisors." (Tr. 106). Gleason testified that Bryant asked him whether he raised the issues 

about the filtration plant to get back at the company for demoting him from electrical planner to 

electrician. (Tr. 82, 148-49). They also discussed Gleason's objections to the language in the 

January 2001 job posting. According to Gleason, Bryant told him not to get so emotional and 

aggressive about minor things. Gleason testified that he was also advised that just because he 

believes something is unsafe does not mean that it actually is unsafe. (Tr. 83). Gleason believed 

that Bryant was telli.ng him that he did not have the final say on whether a condition violates 30 

C.F.R. § 77.502. That provision provides, in part, that electric equipment shall be frequently 

examined and, when a potentially dangerous condition is found, such equipment shall be 

removed from service. Gleason apparently took that statement personally as an insult to his 

109 
professional judgment. (Tr. 85). Bryant also indicated that, by taking Buller out of a meeting to 

look at the conditions at the filtration plant, Gleason had blown the matter out of proportion. Id. 

Colowyo posts job announcements from other Kennecott Energy properties on the 

bulletin board at the mine. Two announcements were of interest to Gleason: an opening for an 

electrical planner at the Cordero Rojo mine and a similar opening at the Spring Creek mine. 

Gleason testified that he applied for these positions by giving his application to Mr. Bryant, the 

human resources manager at Colowyo. (Tr. 86). Gleason believes that either his application was 

not forwarded to these mines or he was not given serious consi.deration for the positions as a 

result of his protected activities. (Tr. 87-88). 

On June 25, 2001, Gleason was conducting a monthly electrical inspection at the tank 

farm at the mine. He understood that the building at the tank farm was considered to be nonclassified, meaning that hazardous or flammable materials would not be stored there. (Tr. 90). 

During this inspection, Gleason found barrels of kerosene as well as a pump for the kerosene. 

Gleason went to the safety department to discuss the matter. In addition, he reviewed the NEC. 

(Tr. 91; Ex G-6). Gleason testified that kerosene was listed as a Class I Group 2A substance. He 

discussed the issue with the safety director. 

On July 11, 2001, Buller assigned Gleason to be a walkaround representative during a 

regular MSHA inspection. Gleason believes that Vaccari told the inspectors that Gleason was a 

"disgruntled employee." (Tr. 89). Gleason was a walkaround representative during the entire 

inspection except for one day, when he was told not to accompany the inspectors. 

On August 7, 2001, Rick Scherer, an electrical engineer with Kennecott Energy, was at 

Colowyo. Gleason showed him the conditions at the filtration plant and the tank farm. (Tr. 93). 

At the filtration plant, Scherer and Gleason found other conditions that violated the NEC. (Tr. 

94). Scherer and Gleason discussed the conditions they found with Steve Hinkemeyer, the 

engineering manager. Hinkemeyer told them that the filtration plant was scheduled to be 

replaced within a year. Id. Scherer told him that the conditions needed to be corrected in any 

event. Hinkemeyer then asked if it would be satisfactory if Colowyo took precautions to make 

sure that water was not sprayed on the walls, that the electric panels did not get wet, and that 

water would not be allowed to remain on the floor. Scherer and Gleason agreed that his 

suggestion was a reasonable approach to the problem. (Tr. 95, 124). It was agreed that the other 

electrical problems at the filtration plant would be fixed and that flammable material would be 

removed from the building at the tank farm. Id. The flammable material was removed about a 

month later, but the pump remains. (Tr. 95, 120-21). 

In January 2002, Gleason accompanied Jim Andrews, the mine's safety director, on a 

safety inspection of the mobile equipment shop. Gleason noted that an air hose reel was located 

directly under the 480-volt control panel in violation of the NEC. Gleason does not know if this 

condition was corrected. 

110 
On June 6, 2002, Buller announced that he was leaving Colowyo to take a position at 

another mine. Gleason applied for this job soon after it was posted on June 21, 2002. (Ex. R-1). 1 

On August 16, 2002, Gleason saw an e-mail from Kennecott Energy which stated that MSHA 

inspectors are now considering diesel fuel to be a flammable liquid. (Tr. 99; Ex. G-lD). As a 

consequence, Gleason filed a written section 103(g) complaint with the MSHA office in Craig, 

Colorado, asking MSHA to come out to the mine to discuss this and the other issues he had 

previously raised, including the filtration plant and the tank farm. (Tr. 99). Two MSHA 

inspectors visited the mine on August 27, 2002. Although the inspectors issued some citations, 

they did not issue any citations related to the items that Gleason mentioned in his complaint. (Tr. 

108). The inspectors were satisfied that if water was not sprayed on the electric panels in the 

filtration plant, the panels did not have to be replaced with panels suitable for a damp/wet 

environment. The inspectors also apparently did not believe that the conditions at the tank farm 

violated the safety standards since the kerosene had been removed. Although it appears that the 

MSHA inspectors told Colowyo management that the complaint had been phoned in, Gleason 

believes that management knew he had filed a written section 103(g) complaint. 

On August 30, 2002, James Petty, the new maintenance coordinator, asked Gleason to 

meet with him. Petty advised Gleason that he would not be considered for the Electric 

Supervisor-Planner position. (Tr. 99). Gleason testified that Petty said that management had 

"their own ideas about the personality they wished to see in the job and that I wouldn't fit." (Tr. 

100). Although Colowyo interviewed David Bird, an electrician at Colowyo, the position was 

filled by someone from outside Colowyo. 

On September 3, 2002, Colowyo posted two open positions for Maintenance Supervisor. 

(Ex. R-2). Gleason applied for these positions. (Tr. 100). 

On October 4, 2002, a meeting was held to discuss Gleason's ability to perform his job as 

an electrician. As stated in the stipulations, Gleason had completed a functional capacity 

evaluation and his physician asked that Gleason be placed in a position meeting his physical 

limitations. (Stips. 'l'[CJ[ 18 & 19). Colowyo management told Gleason at the meeting that an 

employee can only work on restricted duty for a short time. (Tr. 54). Gleason was no longer 

physically able to perform his duties as an electrician at Colowyo. Gleason does not dispute that 

fact. (Stips. ~[ 20; Tr. 109, 129). Management stated that, because it had kept him in his position 

while he was on medical leave and on restricted duty, the company was short one electrician. 

Colowyo wanted to fill his slot with someone else. Management suggested that Gleason bid on a 

maintenance assistant position because it was not as strenuous. (Tr. 131). Gleason declined this 

offer because the pay was somewhat lower, he would be required to walk up and down stairs, and 

he would be required to do more typing than he had in the past. (Tr. 132-33). Gleason also 

raised the issue of who is qualified to supervise electricians. 

1 Exhibits R-1 and R-2 were introduced by Gleason, not Colowyo. Gleason agreed to use 

Colowyo's copies of these premarked exhibits because they were in better condition than his own. 

111 
When Gleason declined to consider the maintenance assistant position, Bryant told him 

that the company would try to get him long term disability. When Gleason asked if this meant 

that he was fired, Bryant replied that he was being terminated because he could no longer do the 

job of an electrician. Gleason's last day at work was October 11, 2002. 

As set forth in the stipulations, Gleason was on salary continuation benefits through April 

11 , 2003, at $23.63 per hour. After that date, he started receiving disability benefits at one-half 

of his hourly rate. In July 2003, Gleason decided to see if he could work again on an 

experimental basis. (Tr. 153). He obtained a job as an electrician at a copper/molybdenum mine 

in Arizona that does not require as much physical exertion. (Tr. 154). 

Gleason filed a complaint of discrimination with the Department of Labor on November 

8, 2002. By letter dated April 9, 2003, MSHA notified Gleason that it determined that the facts 

disclosed during its investigation of his complaint did not constitute a violation of section 105(c) 

of the Mine Act. On May 5, 2003, Gleason filed the complaint in this proceeding. 

II. DISCUSSION WITH FURTHER FINDINGS 

AND CONCLUSIONS OF LAW 

Section lOS(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners "to 

play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation." S. Rep. No. 

181, 95'h Cong., l51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95'h Cong., 2n<1 Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 623 (1978) ("Legis. Hist.") 

A miner alleging discrimination under the Mine Act establishes a prima facie case of 

prohibited discrimination by presenting evidence sufficient to support a conclusion that he 

engaged in protected activity and suffered adverse action motivated in any part by that activity. 

Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 

(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v. 

Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the 

primafacie case by showing either that no protected activity occurred or that the adverse action 

was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine 

operator cannot rebut the primafacie case in this manner, it nevertheless may defend by proving 

that it was also motivated by the miner's unprotected activity and would have taken the adverse 

action for the unprotected activity alone. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see 

also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4'h Cir. 1987). 

112 
A. Protected Activity 

I find that Gleason engaged in protected activity while employed at Colowyo. 

Specifically, he raised questions about the conditions in the filtration plant and at the tank farm. 

He raised other issues concerning electrical safety. He also filed a written complaint with MSHA 

under section 103(g) of the Mine Act. 

B. Adverse Action 

Gleason suffered an adverse action in that he was separated from his employment. The 

issue is whether Gleason was terminated from his job as a result of his protected activities. In 

determining whether a mine operator's adverse action is motivated by the miner's protected 

activity, the judge must bear in mind that "direct evidence of motivation is rarely encountered; 

more typically, the only available evidence is indirect." Sec'y of Labor on behalf of Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other grounds, 709 

F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the discrimination can be 

proven only by the use of circumstantial evidence." Id. (citation omitted). In Chacon, the 

Commission listed some of the more common circumstantial indicia of discriminatory intent: (1) 

knowledge of the protected activity; (2) hostility or animus toward the protected activity; (3) 

coincidence in time between the protected activity and the adverse action; and (4) disparate 

treatment of the complainant. 

It is clear that Colowyo management had knowledge of Gleason's protected activities. It 

is not entirely clear that management knew that Gleason filed the 103(g) complaint, but given the 

subject matter contained in the complaint, management likely had a good idea that Gleason filed 

it. (Tr. 108). Most of his protected activities occurred in 2001 long before he was terminated. 

His 103(g) complaint, however, was filed only a few months before his termination. There has 

not been a strong showing of animus or hostility towards Gleason's protected activities. 

Management appears to have been dissatisfied with the manner in which he raised electrical 

safety issues, but management addressed most of the issues although not as quickly as Gleason 

would have liked. Management's request that he be more cooperative demonstrated some degree 

of hostility. Nevertheless, he was supported in his efforts by some individuals in management, 

such as Buller and Scherer. Gleason's work performance appraisal given by Buller after he had 

raised the electrical safety issues in the filtration plant was quite positive. With respect to safety 

performance and philosophy, the appraisal states that "Jack has not only complied with all [safety 

requirements], he has been instrumental in setting the standards we follow." (Ex. G-lE). With 

respect to productivity performance, the appraisal states, "Jack's strict interpretation of standards 

has been a source of some conflict, but I truly believe that Jack's intentions are genuine and his 

ultimate desire is to do what is best for the company." Id. The appraisal also cites the fact that 

one of Gleason's productivity improvements will likely save the company hundreds of thousands 

of dollars. Gleason also had a clean disciplinary record. (Tr. 160). 

113 
Gleason was forthright in presenting his case in this matter. He admitted that he could 

not perform the job duties of an electrician due to his health problems. At Colowyo, an 

electrician is required to climb onto heavy equipment, such as draglines, to perform electrical 

work. An electrician must also perform other tasks that Gleason was not capable of performing 

in October 2002. Gleason testified that he "wasn't ready to leave Colowyo" and he wanted to be 

considered for the Electrical Supervisor-Planner position or the Maintenance Supervisor 

positions. (Tr. 135-36, 159). He admitted, however, that his limitations would interfere with his 

ability to perform all the functions of those jobs as well. (Tr. 137-39, 145-46). He testified that 

he would have to "designate somebody to go be my legs .... " if he were in either of those 

positions. (Tr. 156). He testified that Colowyo has made accommodations for other employees 

in the past. Although Gleason touched on the disparate treatment issue, there is no credible 

evidence in the record to find that he was treated differently from other similarly situated 

employees because of his safety activities. 

As stated above, at the conclusion of Gleason's case in chief, Colowyo moved that the 

case be dismissed because he had not established a prima facie case. Colowyo argued that 

Gleason's evidence shows that he was not terminated from his employment, but that he was 

placed on long term disability because he could no longer perform his job. Gleason admits that 

he was not capable of performing the work of an electrician in October of 2002. Although 

Gleason wanted to be considered for two supervisory positions, Colowyo would have been 

required to modify the scope of those jobs in order to accommodate Gleason's limitations. 

Colowyo argues that the relief requested by Gleason is not within the scope of section 105(c). 

I agree with Colowyo's argument in this regard. As shown in the stipulations, Gleason 

did little electrical work after September 2000. During most of that period he was on medical 

leave or restricted duty that precluded him from doing the type of work that other electricians 

were performing. Colowyo did not bump him from his position, but gave him other assignments 

so that he could continue to receive his pay as an electrician. (Tr. 129). Many of his assignments 

involved inspecting the mine for safety violations. Colowyo continued giving him safety-related 

work despite the fact that he discovered many conditions that he believed did not meet MSHA 

and NEC standards. (Tr. 117-18, 126). Colowyo asked him to thoroughly inspect electrical 

installations at the mine to help reduce the number of citations it receives from MSHA. 

In September 2002, Gleason's physician requested that Gleason be placed in a position 

meeting his physical limitations. (Stips. <][ 19). Because of these limitations, Colowyo 

management concluded that Gleason would not be able to perform the work of an electrician for 

the foreseeable future. Colowyo offered him a position that would fit his limitations. Although 

Gleason argues that they did not offer him the maintenance assistant position, but only offered to 

let him bid on the job, it is not disputed that he declined to discuss or consider the offer. 

The Mine Act protects miners who make safety complaints or who refuse to work in the 

face of hazardous conditions. The Mine Act does not require a mine operator to continue to 

employ a miner in a position that he is no longer able to perform because of his own physical 

limitations. See Collette v. Boart Longyear Co., 17 FMSHRC 1121, 1125-26 (July 1995) (AU). 

114 
There has been no credible evidence that Colowyo forced Gleason to go on long term disability 

as a pretext or subterfuge to hide its discriminatory motive. Colowyo offered Gleason another 

position at the mine or at the least encouraged him to bid on that position. This fact belies any 

discriminatory motive. It is true that Colowyo did not offer him one of the two supervisory 

positions that he applied for, but those positions were inconsistent with the limitations Gleason 

was under in October 2002. 

Gleason is proud that he is a "carded electrician." Gleason also took his responsibilities 

under section 77 .502 with appropriate seriousness. Gleason believes that when Colowyo 

supervisors began questioning his concerns about electrical safety, they were questioning his 

judgment. He believes that management thought that he "couldn't be trusted to determine if 

something was a danger or not." (Tr. 160). Although the Mine Act protects miners who raise 

safety complaints, it does not prohibit a mine operator from questioning or probing the issues 

raised. It is clear from the evidence that Colowyo respected Gleason's demonstrated expertise in 

electrical safety and the NEC. The fact that Colowyo's supervisors did not immediately change 

or correct every alleged deficiency that Gleason tagged and the fact that these supervisors 

questioned Gleason about some of these items does not establish that Gleason was not a trusted 

employee or that he was discriminated against in violation of sec6on 105(c). 

For the reasons set forth above, I find that Mr. Gleason did not establish that his protected 

activities played a part in Colowyo's decision to place him on long term disability. Colowyo 

placed Gleason on long term disability because of his physical limitations only after he declined 

to bid on or discuss the maintenance assistant position. 

III. ORDER 

For the reasons set forth above, the discrimination complaint filed by Leslie 0. Gleason 

against Colowyo Coal Company under section 105(c) of the Mine Act is DISMISSED. 

Distribution: 

Leslie 0. Gleason, 805 Exmoor Road, Craig, CO 81625-3828 (Certified Mail) 

Leslie 0. Gleason, P.O. Box 125, Bagdad, AZ 86321 (Certified Mail) 

Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18lh Street, Suite 2150, Denver, CO 80202-

1958 (Certified Mail) 

RWM 

115 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, DC 20001 

February 25, 2004 

SECREf ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHWEST QUARRY & MATERIALS, 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 2003-306-M 

A.C. No. 23-00759-05521 

Southwest Quarry & Materials 

DEFAULT DECISION 

Before: Judge Hodgdon 

This case is before me on a Petition for Assessment of Ci vii Penalty brought by the 

Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against 

Southwest Quarry & Materials, Inc., pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815. The petition alleges nine violations of the Secretary's 

mandatory health and safety standards and seeks a penalty of $1,096.00. For the reasons set forth 

below, I affirm the citations and assess the penalty proposed. 

On December 18, 2003, counsel for the Secretary filed a Motion to Deem Admissions 

Admitted and Motion for Summary Decision. However, because the operator, who is not 

represented by counsel, failed to respond to the Secretary's motion or to file a required 

prehearing statement, an Order to Show Cause was issued instead. 1 

The Secretary's motion stated that discovery requests, including requests for admissions 

to each citation, were served on the Respondent on October 27, 2003. When the Respondent did 

not object or respond to the requests, counsel for the Secretary sent the company a letter on 

November 28, 2003, pointing out the failure to respond and advising that failure to respond 

"could result in the matter being deemed admitted." The Operator had not responded to the 

discovery requests as of the date the Secretary filed the motion. As noted above, the company 

also did not respond to the Secretary's motion. 

1 The case was scheduled for hearing on January 13, 2004. The Order to Show Cause 

continued the hearing. 

116 
In addition, the Notice of Hearing in this case required the parties to file a preliminary 

statement concerning the matters to be considered at the hearing with the judge so that it was 

"RECEIVED not later than 5:00 p.m. ET on January 2, 2004." No statement was received 

from the Respondent. 

Commission Rule 66(a), 29 C.F.R. § 2700.66(a), provides that: "When a party fails to 

comply with an order of a Judge or these rules ... an order to show cause shall be directed to the 

party before the entry of any order of default or dismissal." Additionally, Commission Rule 

66(c), 29 C.F.R. § 2700.66(c), states that: "When the Judge finds a party in default in a civil 

penalty proceeding, the Judge shall also enter an order assessing appropriate penalties and 

directing that such penalties be paid." 

Accordingly, on January 7, 2004, Southwest Quarry and Materials, Inc., was ordered to 

show cause, within 21 days of the date of the order, why it should not be held in default, the nine 

citations at issue in this case affirmed and ordered to pay a civil penalty of $1,096.00. The order 

directed that the Respondent could comply by filing, within the 21 days provided, a proper 

response to the Secretary's discovery requests, with a copy of the response filed with the judge, 

or it could furnish any other reasons it deemed appropriate as to why it should not be held in 

default. 

On January 26, 2004, an undated letter was received from the Respondent. It was signed 

by Chester McDowell, Vice-President, and stated: 

I am sending you a copy of a Jetter that I sent to Lydia A. 

Tzagoloff. She said that I haven't done anything about this matter. 

I have called her and sent two faxes to her. I am sending the next 

letter to her registered. Also I am sending you a copy of pictures of 

my backhole [sic] with the guard that has always been on it. 

The questions in my letter to Tzagoloff sured [sic] be answered. 

After you read my Jetter, you will see that MSHA has no ground to 

stand on. This case should be dropped. 

The enclosed letter was also undated. It contained questions about the inspectors' qualifications 

and statements about the citations. 

Since the Respondent apparently did not respond to the discovery requests and only 

marginally addressed why it should not be defaulted, I had my Legal Assistant instruct counsel 

for the Secretary to set-up a telephone conference call with Mr. McDowell. After several days of 

unsuccessfully attempting to contact Mr. McDowell, counsel called my Legal Assistant to give 

an update. At that time, my Legal Assistant called the Respondent and left a message that it was 

117 
very important that Mr. McDow~ll contact the judge and counsel for the Secretary. As of the 

date of this decision, the Respondent has not been heard from. 

It is apparent that the operator is intent on not participating in this proceeding. The 

company has failed to respond in a meaningful way to any orders or to the Secretary's discovery 

requests. Accordingly, I find that the Respondent is in default in this matter. 

Order 

In view of the above, Citation Nos. 6217087, 6217088, 6217089, 6217090, 6217091, 

6217092, 6217093, 6217094 and 6217095 are AFFIRMED and Southwest Quarry & Materials, 

Inc., is ORDERED TO PAY a civil penalty of $1,096.00 within 30 days of the date of this 

decision. 

Distribution: (Certified Mail) 

~~~ Administrative Law Judge 

(202) 434-9973 

Lydia Tzagoloff, Esq., Office of the Solicitor, U. S. Department of Labor, 

P:o. Box 46550, 1999 Broadway, Suite 1600, Denver, CO 80201 

Chester McDowell, Vice President, Southwest Quarry & Materials, Inc., 

13073 State Rt. CF, Rolla, MO 65401 

/hs 

118 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COLD SPRING GRANITE CO., 

Respondent 

Washington, DC 20001 

February 26, 2004 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 2003-214-M 

A.C. No. 41-00070-05529 

Sunset Quarries 

DECISION 

Appearances: Lindsay A. McCleskey, Esq., and Danielle L. Jaberg, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for Petitioner; 

Steven R. McCown, Esq., Littler Mendelson, Dallas, Texas, for Respondent. 

Before: Judge Hodgdon 

This case is before me on a Petition for Assessment of Civil Penalty brought by the 

Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against 

Cold Spring Granite Company, pursuant to section 105 of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815. The petition alleges a violation of the Secretary's mandatory 

health and safety standards and seeks a penalty of $242.00. A hearing was held in Austin, Texas. 

For the reasons set forth below, I affirm the citation and assess the penalty proposed. 

Background 

Cold Spring Granite Company operates an open-pit granite quarry, known as Sunset 

Quarries, near Marble Falls, Texas. Granite is mined by blasting large pieces of granite called 

"loaves" from the natural granite bed. A "loaf' weighs between 200 and 600 tons, is between 8 

and 25 feet tall and is 12 to 15 feet in length. The loaves are then broken into smaller pieces, 

called "blocks," by use of drills and wedges, and the blocks are moved to another location to be 

further broken up. A block normally weighs 20 to 22 tons, is between 5 and 51/2 half feet high 

and is no longer than 11 feet. A block is broken up into milling size by drilling holes in it and 

then driving wedges into the holes so that the granite splits along the line of holes. Finally, the 

milling-sized pieces are machine milled to various customers' requirements. 

On February 5, 2003, MSHA Inspector James R. Fitch, Jr., was conducting an inspection 

of Sunset Quarries when he observed a miner operating a drill while standing on top of a five 

foot high block of granite. The miner was standing within a foot of the edge of the block and 

was not wearing any type of fall protection. Believing this to be a violation of the Secretary's 

mandatory safety standards, the inspector issued a citation to the company. 

119 
The citation, No. 6226687, alleges a violation of section 56.15005, 30 C.F.R. § 56.15005, 

because: 

A miner was observed standing within 1 foot of the edge 

(to the side and behind the miner) of a 5 foot high granite block. 

The miner was not wearing any form of fall protection while 

drilling. The miner could miss-step [sic] and fa]} from the block to 

the ground below. The surface of the block appeared to be dry and 

relatively free of tripping hazards. The fall could result in spinal 

injuries to the miner. It is common practice at this mine for miners 

to stand on blocks without fall protection. 

(Govt. Ex. 2.) Section 56.15005 provides, in pertinent part, that: "Safety belts and lines shall be 

worn when persons work where there is danger of falling .... " 

Findings of Fact and Conclusions of Law 

The company does not dispute that the block of granite was five feet high or that the 

miner was standing near its edge without fall protection. It argues, however, that the regulation 

was not violated because: (a) in a previous citation, MSHA had approved Cold Springs fall 

protection policy and the miner in this case was in compliance with that policy; (b) regulations of 

the Occupational Safety and Health Administration (OSHA) for the construction industry do not 

require the use of fall protection unless the height is six feet; (c) it is not industry practice to use 

fall protection on a five foot block and MSHA had observed company employees working on 

such blocks for years and had not cited them; and (d) there are no reported cases requiring fall 

protection for a height of five feet. None of these arguments is persuasive. 

In construing 30 C.F.R. § 57.15-5, a regulation worded almost exactly the same as the 

instant regulation, the Commission noted that it was the kind of regulation "made simple and 

brief in order to be broadly adaptable to myriad circumstances." 1 Kerr-McGee Corporation, 3 

FMSHRC 2496, 2497 (November 1981). The Commission has further held, with regard to this 

language, that the applicability of the standard to a specific situation is whether a reasonably 

prudent person familiar with the mining industry and the protective purpose of the standard 

"would recognize a danger of falling warranting the wearing of safety belts and lines." Great 

Western Electric Co., 5 FMSHRC 840, 842 (May 1983). The company's arguments do not 

address this standard. 

With regard to the previous citation, on February 23, 2001, the operator was cited for a 

violation of section 56.15005 at its Bear Mountain Quarry because an employee was standing on 

a "boulder" operating a drill without fall protection. (Govt. Ex. 9.) The citation was modified at 

1 The only difference in the two regulations is the word "men" where "persons" is in 

section 56.15005. 

120 
an informal conference with Ralph Rodriguez, the San Antonio Field Office Supervisor, by 

deleting the "significant and substantial" designation and reducing the level of negligence from 

"moderate" to "low." The reason given for the modification was that: "The company has [a] 

policy on tying off and will evaluate each driller." (Govt Ex. 9 at 3.) Based on this language, the 

company argues that "MSHA specifically incorporated and approved Respondent's shoulder 

height fall policy."2 (Resp. Br. at 5.) 

The language in the modification of the citation does not indicate that MSHA 

"incorporated and approved" the company's fall protection policy. In the first place, the granite 

block in question in the Bear Mountain citation was six feet high. (Tr. 80.) Thus, drilling on it 

without fall protection violated the company's fall protection requirements as well as MSHA's. 

Secondly, the fact that the company had a fall protection policy was cited in the citation to justify 

reducing the gravity and negligence of the violation. It certainly was not intended to incorporate 

it into the regulation. Furthermore, the Respondent's interpretation ignores the rest of the 

language in the modification, that the company would "evaluate each driller." As Rodriguez 

testified, "[t]he company agreed to monitor each situation that came up on drilling these big 

granite boulders, because they're not all the same conditions." (Tr. 93.) 

Moreover, Inspector Rodriguez, in agreeing to the modification of the Bear Mountain 

citation, obviously did not have the authority to waive the regulation's requirements and bind the 

Secretary to what would be an amendment of the regulatory language. In this connection, the 

10th Circuit Court of Appeals has said: 

Whatever their positions within the agency, the MSHA officials 

who approved Emery's plan clearly had no authority to waive the 

Act's requirements and bind the government to what amounts to an 

amendment of the statutory language. Particularly where 

mandatory safety standards are concerned, a mine operator must be 

charged with knowledge of the Act's provisions and has a duty to 

comply with those provisions. To the extent Emery relied on an 

interpretation by MSHA officials of the Act's implementing 

regulations, Emery assumed the risk that that interpretation was in 

error. 

Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984) (citations 

omitted). Similarly, to the extent that Cold Springs relied on what it believed to be Rodriguez' 

acceptance of its fall protection policy, it assumed the risk that that interpretation was in error. 

Finally, it is not at all clear that the company's policy was not violated in this case. 

Inspector Fitch testified that the miner on the block was "5' 4", 5' 6"" tall. (Tr. 71.) Michael J. 

2 Cold Spring's fall policy provides that persons operating rock drills will use fall 

protection on "any block above the operator's shoulder height." (Govt. Ex. 5 at 2.) 

121 
Clark, the company's safety manager, testified that he was "five six, five seven." (Tr. 122.) The 

inspector further testified that "I'd estimate a normal head to be six to eight inches long. That 

would put his shoulder below the level of five foot." (Tr. 71.) If anything, the inspector's 

estimate of the length of a head and neck is on the conservative side. Therefore, it appears that 

the miner was not wearing fall protection in violation of the company's own policy.3 

The operator's second argument implies that since OSHA construction regulations do not 

require fall protection unless the work area is six feet or more above the ground, MSHA should 

adopt a similar standard. While correctly arguing that OSHA standards are not applicable to this 

case, the Secretary points out that OSHA's General Industry standard for Walking-Working 

Surfaces requires fall protection to be worn at heights of four feet or greater. (Sec. Br. at 7 .) It is 

not necessary, however, to determine which OSHA standard might be appropriate, since OSHA 

standards are clearly not applicable to mines. 

Turning to the company's third argument, there is no support in the record for its claim 

that it is not industry practice to require fall protection on a standard sized block of granite and 

that MSHA has observed such operations for years and not issued citations. Clark did testify that 

he was not aware of any quarry company that required its employees to use fall protection on five 

foot blocks. (Tr. 127.) However, no independent evidence was offered to support this assertion. 

Further, it was contradicted by Inspector Rodriguez who testified that he had inspected other 

quarries and observed miners wearing fall protection at "[a]nywhere from four, six to ten feet, 

eight feet" anytime "they were in danger of falling." (Tr. 95-96.) The assertion is also at odds 

with the company's own fall protection policy which, depending on the height of the miner, 

could require the use of fall protection at less than five feet. 

Furthermore, the Secretary cannot be estopped from citing a violation simply because that 

same condition was not cited during a previous inspection, or was not cited at another quarry. 

Collateral estoppel cannot be asserted to prevent the Secretary from carrying out her statutory 

enforcement responsibilities. King Knob Coal Co., Inc. , 3 FMSHRC 1417, 1421-22 (June 1981). 

Consequently, it makes no difference that, with the exception of the Bear Mountain Quarry, the 

Respondent had never been cited for this violation. 

The Respondent's final argument is partially correct. There do not appear to be any 

Commission cases holding that a work place five feet off of the ground required fall protection 

under the standard. On the other hand, there is only one case that concludes that being five feet 

off of the ground does not require fall protection and it is distinguishable from this case. In USX 

Corp., Minnesota Ore Operations, 15 FMSHRC 2333 (November 1993), Judge Barbour found 

that an employee climbing a five to six foot ladder on the outside of the cab of an electric mining 

shovel did not have to have fall protection. He held that: "The record does not support finding 

3 No evidence was offered of the miner's actual height. In addition, if the company's 

policy were part of the regulation, each violation would turn on a measurement of the alleged 

violator's shoulder height and not on whether there was a danger of falling. 

122 
that falling from the 5 to 6-foot ladder would have produced an injury. Moreover ... it was 

utterly impractical to expect the person to tie off while climbing the ladder." Id. at 2340 

(emphasis added). 

In this case, the record supports finding that falling from the five foot block of granite 

would result in an injury and that it is possible to tie-off while operating a drill on the block. The 

operator's attempt to argue that tying-off is impractical is undercut by its own requirement that 

fall protection be used on blocks above shoulder height.4 

Based on the evidence, I find that a reasonably prudent person would have recognized 

that the miner was in danger of falling and that use of a safety line was warranted. As Inspector 

Fitch testified, whether fall protection is required on a five foot block of granite, 

depends upon the circumstance that is found. In this case the 

miner was standing right next to the edge. He was operating a 

drill, which meant he was thinking about other things more than 

likely, such as running the drill. During situations like that it's 

possible to lose concentration. 

(Tr. 30.) Or, as the Commission stated in Great Western Electric: "Even a skilled employee may 

suffer a lapse of attentiveness, either from fatigue or environmental distractions, which could 

result in a fall." 5 FMSHRC at 842. 

Indeed, the company did recognize that fall protection was appropriate in this instance. 

Its requirement that fall protection was to be used on blocks over shoulder height basically would 

require protection at a few inches above or below five feet. Such a minimal distinction would 

make no difference as far as the fall is concerned. Accordingly, I conclude that the company 

violated section 56.15005, as alleged. 

Significant and Substantial 

The Inspector found this violation to be "significant and substantial." A "significant and 

substantial" (S&S) violation is described in Section 104(d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

4 The Resp~mdent also argues that the fact that miners performing the wedging operation 

do not have to use fall protection shows that drillers should not have to tie-off. This argument is 

without merit. As Inspector Fitch pointed out, the reason wedgers do not use fall protection is 

that the nature of the wedging function would place them at a greater danger if they used fall 

protection than if they did not. (Tr. 66-67 .) 

123 
contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission set out four criteria 

that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52 

F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 

1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies 

criteria). Evaluation of the criteria is made in terms of "continued normal mining operations." 

U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a 

particular violation is significant and substantial must be based on the particular facts 

surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 2007 (December 1987). 

In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying 

violation of a safety standard; (2) a distinct safety hazard, a measure of danger to safety, 

contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will 

result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious 

nature. Mathies, 6 FMSHRC at 3-4. 

In this case, whether the violation is S&S depends on the third and fourth Mathies 

elements. I have already found the violation of a safety standard and that the failure to use fall 

protection created the danger of a fall. With regard to whether the fall would result in an injury 

and whether injury would be reasonably serious, Inspector Fitch testified that it was reasonably 

likely that the miner would step off of the edge and fall to the ground suffering anything from 

bruises, to a permanently disabling spinal injury, to a fatal accident. (Tr. 44-45.) Inspector 

Rodriquez testified that there was a danger of falling off of the block or into the gap between the 

block the miner was on and the block next to it, that he believed the violation to be S&S and that 

they types of injuries that could result from a fall of five feet included broken bones, broken 

pelvises, back injuries and head and neck injuries, with the most common being broken bones. 

(Tr. 99-100.) 

Based on the above, I find that the violation was "significant and substantial." 

Civil Penalty Assessment 

The Secretary has proposed a penalty of $224.00 for this violation. However, it is the 

judge's independent responsibility to determine the appropriate amount of penalty in accordance 

with the six penalty criteria set out in section llO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg 

Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 

FMSHRC 481 , 483-84 (April 1996). 

In connection with the penalty criteria, I find that Sunset Quarries is a small to medium 

operation and that Cold Spring Granite Company is a small company. I find that the company 

124 
has a good history of previous violations. (Govt. Ex. 8.) The operator has made no claim that 

the proposed penalty will adversely affect its ability to remain in business. Therefore, based on 

that, and the small penalty, I find that payment of the penalty will not adversely affect it. I further 

find that the record supports a finding that the company demonstrated good faith in attempting to 

achieve rapid compliance after notification of the violation. 

In addition, I find that the gravity of this violation was not very serious. Finally, I find 

that the company was moderately negligent in that, even though the operator may have believed 

that MSHA had approved its shoulder height requirement and even though it may have been 

mislead by previous non-enforcement, it was put on notice that MSHA was starting to enforce 

the fall protection requirement by the Bear Mountain citation. 

Taking all of these factors into consideration, I conclude that the $224.00 penalty 

proposed by the Secretary is appropriate. 

Order 

In view of the above, Citation No. 6226687 is AFFIRMED and Cold Spring Granite 

Company is ORDERED TO PAY a civil penalty of $224.00 within 30 days of the date of this 

decision. 

1~~ Administrative Law Judge 

Distribution: (Certified Mail) 

Lindsay McClesky, Esq., Office of the Solicitor, U. S. Department of Labor, 525 South Griffin 

St., Suite 501, Dallas, TX 75202 

Steven R. McCown, Esq., Littler Mendelson, 2001 Ross Avenue, Suite 2600, Dallas, TX 75201 

/hs 

125 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

February 26, 2004 

GRANITE MOUNTAIN CRUSHING, LLC, 

Respondent 

DECISION 

CNJL PENALTY PROCEEDINGS 

Docket No. CENT 2003-289-M 

A.C. No. 41-03932-05515 

Docket No. CENT 2003-290-M 

A.C. No. 41-03932-05516 

Granite Mountain Crushing 

Appearances: Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of 

Labor, Dallas, Texas, for the Secretary of Labor; 

Before: 

David M. Williams, Esq., San Saba, Texas, for Granite Mountain 

Crushing, ILC. 

Judge Manning 

These cases are before me on two petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"), 

against Granite Mountain Crushing, ILC ("Granite Mountain"), pursuant to sections 105 and 

110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine 

Act"). The cases involve 23 citations issued by the Secretary under section 104(a) of the Mine 

Act. The Secretary seeks a total penalty of $11,578 for the alleged violations. An evidentiary 

hearing was held in Austin, Texas. The parties introduced testimony and documentary evidence 

and, at the close of the hearing, presented oral argument. 

I. BACKGROUND 

Cold Spring Granite Company, USA, ("Cold Spring") operates a granite quarry near 

Marble FaJJs, Texas. Granite Mountain was organized in May 1996 to reduce the spoil piles at 

the granite quarry. (Tr. 10; Ex. R-1). Granite Mountain entered into an agreement with Cold 

Spring to crush material from its spoil pile, mostly mill block fragments, to produce Class A road 

stone, cover stone, ballast, rip rap, and other specially crushed engineering stone. (Tr. 16; Ex. 

R-1). The original.participants in the venture were Cold Spring and Texas Architectural 

Aggregates, Inc., ("TAA"). Contributions to the venture included quarry and mill site premise 

leases from Cold Spring, an operations agreement from T AA, and the guarantees from both 

126 
corporations on a note to purchase necessary mining and milling equipment through Cargill 

Leasing Corporation. 

As a result of operations problems, Cold Spring withdrew from the venture after about 

three years but continued its leases and supply agreements. (Tr. 11; Ex. R-1). Granite Mountain 

continued with the operation and obtained additional financing through Orix Financial, the CIT 

Group, and equipment suppliers, which maintained security interests in the mill, heavy 

machinery, and parts which they supplied. (Tr. 12; Ex. R-1). 

Because of high operations expenses, Granite Mountain made the decision in the spring 

of 2003 to cease operations on the Cold Spring property and to salvage as much of the company's 

investment in the venture as possible. The project "never did prove feasible." (Tr. 11). Granite 

Mountain auctioned off its salvageable equipment and machinery through Ritchie Brothers 

Auctioneers in Fort Worth in September 2003. The crushing plant, which had a cost basis of 

about $1.5 million sold for less than $225,000. (Ex. R-1). The net proceeds from the sale of the 

equipment and machinery at auction was $244,592 which was paid directly to Orix Financial and 

the CIT Group. (Tr. 13, 22; Ex. R-1). Granite Mountain represents that, excluding MSHA's 

proposed penalties, it owes its creditors about $1 15,000. (Tr. 15, 28). Granite Mountain further 

represents that, although it had a large supply inventory when it liquidated its assets, that material 

is in the possession of Cold Spring and Granite Mountain has no rights to it. (Tr. 13-14, 41-42). 

Granite Mountain states that its only assets are additional equipment that were not suitable for 

auction with a net fair market value of about $ 11,000 and accounts receivable of about $5,800. 

(Tr. 14, 36-38; Ex. R-1). Accounts receivable includes accounts that are unlikely to be collected. 

Granite Mountain has not filed for bankruptcy, but does not have any income at this time. 

(Tr. 15). The manager of Granite Mountain has been paying off some of the company's debt 

with his own funds, but he had no legal obligation to do so. (Tr. 30). He has not been making 

these payments with funds from other companies in which he has an interest. (Tr. 31). Granite 

Mountain states that it is possible "with a different crushing system, new granite lease 

arrangements, and improved market trends, that Granite Mountain could return to the business of 

mining and crushing granite." (Ex. R-1 p. 2; Tr. 39-40). 

The 23 citations contested in these cases were issued during an MSHA inspection on 

March 6 - 7, 2003. Prior to the hearing in these cases, the parties entered into joint stipulations in 

which the parties agreed that (1) Granite Mountain is an operator within the meaning of the Mine 

Act that is subject to the jurisdiction of the Mine Act; (2) the products of Granite Mountain enter 

commerce or affect commerce within the meaning of section 4 of the Mine Act; (3) the 

Commission has jurisdiction over these cases; and (4) Granite Mountain abated or terminated all 

citations within the time frame initially set by the MSHA inspector. 

The parties also stipulated that all of the citations "were properly served by the duly 

authorized representative of the Secretary upon an agent of Granite Mountain on the date and 

place stated therein, and may be admitted into evidence for the purpose of establishing its 

127 
issuance and for the truthfulness or relevance of any statements asserted therein." The parties 

further stipulated that "Granite Mountain admits that it committed the violations alleged in the 

citations [attached to] the Secretary's Petitions for Assessment of Civil Penalty." Finally, the 

parties stipulated that Granite Mountain contends "that the proposed assessed penalties in the 

total amount of $1 1,578.00 are not appropriate and requests that the Court make a determination 

of the proper amounts, if any, to be assessed against Respondent in light of Respondent's 

affirmative assertion that it is no longer in business and is presently unable to pay the penalties as 

assessed." 

II. SUMMARY OF THE PARTIES' ARGUMENTS 

The Secretary maintains that Granite Mountain has not met its burden of establishing that 

the proposed penalties will have an "effect on the operator's ability to continue in business." 30 

U.S.C. § 620(1). (Tr. 44-46, 50-52). The fact that Granite Mountain ceased operations does not 

demonstrate that the proposed penalties of $11,578 would affect its ability to resume operations 

if it chooses to do so. The Secretary objected to the introduction of Exhibit R-1 on the basis that 

it is hearsay and it was not accompanied by supporting documents. (Tr. 7-8). The Secretary 

believes that, if Granite Mountain's statement that it is carrying a debt load of $115,000 is 

accepted, then that fact helps to establish its current financial condition but it does not show that 

it is unable to pay the proposed penalty. In addition, there may be other potential "cash 

revenues" from accounts receivable. Id. The Secretary relies, in part, on the decision in Energy 

Trucking, 19 FMSHRC 1685, 1691(Oct.1997) (AU). In that case, the administrative law judge 

held that "net operating losses are not proof of an inability to continue in business." Id. Because 

Granite Mountain did not meet its burden of showing that the penalties will negatively affect its 

ability to continue in business, the proposed penalties should be affirmed. 

Granite Mountain contends that " it is essentially penniless." (Tr. 48). It is in debt and is 

trying to stay out of bankruptcy. Granite Mountain maintains that the proposed penalties will 

affect its ability to continue in business. (Tr. 49). Finally, it argues that it is not only in debt but 

it also has no significant assets. 

III. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

It is well settled that the Commission assesses civil penalties de novo and is not bound by 

the Secretary's proposed penalties. Topper Coal Co., 20 FMSHRC 344, 350 n.8 (April 1998); 

Sellersburg Stone Co., 5 FMSHRC 287, 291, (March 1983), aff'd736 F.2d 1147 (7th Cir. 1984). 

In determining the appropriate civil penalty to be assessed, Commission Rule 29 C.F.R. 

§ 2700.30, requires the judge to consider the statutory criteria set forth in J lO(i) of the Mine Act, 

30 U.S.C. § 820(i). Section l lO(i) provides, in pertinent part, that in assessing civil penalties the 

Commission shall consider the operator's history of previous violations, the appropriateness of 

such penalty to the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue in business, the gravity of the violation, 

128 
and the demonstrated good faith of the person charged in attempting to achieve rapid compliance 

after notification of a violation. Although the parties focused on the ability to continue in 

business criterion, I am required to evaluate all of the criteria based on the evidence presented at 

the hearing. 

A. Size of the Mine Operator 

Granite Mountain is a small operator, as set forth in the record. 

B. The Mine Operator's History of Previous Violations 

The record establishes that Granite Mountain was issued 23 citations during the 24 

months prior to March 2003. This is a relatively high number of citations for a small operator. 

The Secretary's proposed penalties were heavily influenced by this history. Indeed, the Secretary 

assigned the maximum number of penalty points for this criteria under 30 C.F.R. § 100.3(c). In 

addition, the Secretary added 20 extra penalty points for "excessive history" to the total points for 

most of the citations. All but 5 of the 23 citations at issue in these cases were designated as not 

being of a significant and substantial nature ("S&S"). Because of this "excessive history," the 

Secretary proposed penalties for these non-S&S citations that were significantly greater than her 

typical single penalty proposals under 30 C.F.R. § 100.4. The proposed penalties for the nonS&S citations ranged between $259 and $1,428 each. But for the "excessive history" 

determination, the penalties for these non-S&S citations would have been $60 each. I find that, 

although the penalties should take into account Granite Mountain's relatively high history of 

previous violations, the Secretary's proposed penalties are too high when taking this criterion 

into consideration, especially with respect to the non-S&S violations. 

C. Negligence of the Operator 

As set forth in the citations, Granite Mountain's negligence was moderate with respect to 

each violation except with respect to the violation alleged in Citation No. 6226697 where its 

negligence was high. 

D. Gravity of the Violations 

The gravity of the violations are as set forth in the citations. The most serious violations 

are as set forth in Citation Nos. 6226697, 6226701, 6226704, 6226705, and 6226714, which are 

S&S. 

E. Demonstrated Good Faith in Achieving Rapid Abatement of the Violations 

Granite Mountain demonstrated good faith in quickly abating the violations. 

G. Effect on the Operator's Ability to Continue in Business 

129 
I find that the Secretary's proposed penalties will have a negative effect on Granite 

Mountain's ability to continue in business. Granite Mountain has virtually no assets and it has 

substantial debts. The proposed penalties will affect its ability to resume operations. I credit the 

testimony of Granite Mountain's corporate secretary as to the financial condition of the company. 

The Secretary's reliance on Energy Trucking is misplaced. In that case, the judge determined 

that the operator was "essentially a 'pass through' business whereby almost all of its income 

passes through the company to one or more "lessor-operators." 19 FMSHRC at 1691. He 

concluded that a company with such a structure "would effectively have an exemption from civil 

penalties under the Act if its reported net losses were accepted as proof of an inability to pay 

substantial penalties and continue in business." Id. The present case presents a different 

situation. Granite Mountain is not operating at a loss; rather it is not generating any income at all 

and it is in debt. 

In reaching this conclusion, I note that there is no evidence that Granite Mountain's 

decision to liquidate its assets was motivated in any part by the Secretary's proposed penalties. 

There is also no evidence that Granite Mountain was operated as a shell corporation or that it was 

deliberately under-capitalized in order to avoid responsibility for paying its debts. 

In conclusion, I have reduced the penalties proposed by the Secretary for two reasons. 

First, I find that the Secretary increased her proposed penalties for "excessive history" by more 

than is justified under the circumstances presented in these cases. With respect to the non-S&S 

citations, the proposed penalties are four to nine times higher than they would have been without 

the excessive history designation. I have also reduced the penalties under the ability to continue 

in business criterion, as discussed above. 

IV. ORDER 

Based on the criteria in section l l O(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 

CENT 2003-289-M 

6226697 

6226698 

6226699 

6226700 

6226701 

6226702 

6226703 

6226704 

6226705 

30 C.F.R. § 

56.6130(b) 

56.4101 

56.16005 

56.6132(a)(10) 

56.610l(a) 

56.613l(a)(l) 

56.6130(d) 

56.14100(b) 

56.4101 

130 

Penalty 

$1,000.00 

120.00 

120.00 

200.00 

500.00 

200.00 

120.00 

250.00 

250.00 
6226706 

6226707 

6226708 

6226709 

6226710 

6226712 

6226713 

6226714 

6226716 

62267 17 

CENT 2003-290-M 

6226718 

6226719 

6226720 

6226721 

56.20013 

56.12006 

56.12008 

56.12008 

56.14107(a) 

56.14107(a) 

56.14107(a) 

56.11012 

56.14107(a) 

56.14107(a) 

56.9300(a) 

56.15001 

56.12004 

56.18002(a) 

TOTAL PENALTY 

120.00 

120.00 

120.00 

120.00 

120.00 

120.00 

120.00 

500.00 

120.00 

120.00 

120.00 

120.00 

120.00 

120.00 

$4,820.00 

For the reasons set forth above, the citations at issue in these cases are AFFIRMED. 

Granite Mountain Crushing LLC is ORDERED TO PAY the Secretary of Labor the sum of 

$4,820.00 within 40 days of the date of this decision. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX 75202-5036 (Certified Mail) 

David M. Williams, Esq., P.O. Box 242, San Saba, TX 76877-0242 (Certified Mail) 

RWM 

131 
132 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

JTh1 WALTER RESOURCES, INC., 

Contestant 

V. 

SECRETARY OF LABOR, 

MINESAFETYANDHEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Washington, D.C. 20001 

February 2, 2004 

CONTEST PROCEEDINGS 

Docket No. SE 2003-97-R 

Order No. 7670621; 03/03/03 

Docket No. SE 2003-98-R 

Order No. 7670622; 03/03/03 

No. 7 Mine 

Mine ID No. 01-01401 

ORDER ADMITTING EVIDENCE 

At initial hearings in these cases on September 9, 2003, the Secretary of Labor offered 

into evidence 26 charging documents alleging violations over the three-month period preceding 

the violations at issue, of the same mandatory standard that is at issue in these cases, i.e., 30 

C.F.R. § 75.400. The Secretary asserted at the time that these charging documents were 

evidence of similar repeated violations supporting her theories of high negligence and 

"unwarrantable failure" in the cases at bar. See Peabody Coal Co., 14 FMSHRC 1258, at 1263-

64 (August 1992) and Deshetty, employed by Island Creek Coal Co., 16 FMSHRC 1046, 1051 

(May 1994). At the time of hearing however, only one of those 26 charging documents had 

become final. Accordingly 25 of the 26 charging documents were found inadmissible and the 

Contestant's objections to the evidence were sustained. 

At continued hearings on December 15, 2003, the Secretary offered 23 of the original 26 

charging documents into evidence but under a new theory. The Secretary argued that the 

documents were admissible not as evidence of violations per se (acknowledging that the charging 

documents had not yet become final) but that the charging documents were evidence of notice to 

the operator that it was MSHA's position that the cited conditions were violative and that the 

issuance alone of those charging documents provided notice of MSHA's concerns about 

accumulation problems and that the operator needed to increase its efforts to comply with the 

standard. A ruling on the admissibility of the proffered charging documents was deferred subject 

to Contestants filing a posthearing legal memorandum. 

In its memorandum filed January 9, 2004, Contestant objects to the admission into 

evidence of the 23 c~argi ng documents proffered by the Secretary at the December 15, 2003, 

trial. The Contestant objects on the grounds, (1) that they are not relevant, (2) that all of the 

charging documents are under contest and therefore not final and would become relevant only if 

and when they become final, (3) that five of the proffered charging documents were not 

133 
designated as "significant and substantial" and, for this additional reason, were not relevant, (4) 

six of the charging documents proffered by the Secretary relate primarily to trash, other materials 

and equipment and therefore are not relevant to whether Contestant knew or should have known 

of dust accumulation problems at the No. 7 Mine, (5) of the 23 prior charging documents only 

three of them relate to dust accumulations on the beltlines and that the rest of them relate to areas 

of the mine other than beltlines, (6) none of the prior charging documents relate to dust 

accumulations in the north main belt area - - the area to which the present citations relate, (7) five 

of the charging documents are "without merit" because the areas in question are supplied by 

intake air - - Contestant argues that such areas were essentially free of float coal dust therefore 

maintains that those citations should. not be at all relevant to Contestant's notice of accumulation 

problems prior to Order No. 7670621, (8) the allegations in Order No. 7678683 are "meritless" 

because Contestant had several employees working in the area at the time of the alleged violation 

and therefore, that order should not be considered as evidence of notice. 

I find the 23 proffered charging documents to be relevant to the issues of negligence and 

"unwarrantable failure" and that such evidence should not be barred by lack of finality under the 

Secretary's theory that such documents are evidence of prior notice by the Secretary to 

Contestant of her concerns with various accumulations of combustible materials in the subject 

mine in close time proximity to the issuance of the orders at bar. Such evidence is even more 

persuasive than that of oral notification by inspectors to mine operators about potentially unsafe 

conditions in a mine. The Commission has acknowledged that such evidence may be used to 

show that the operator has been placed on notice that it must increase its efforts to comply with 

the standard. See Enlow Fork Mining Co., 19 FMSHRC 5, 11-12 (January 1997). Such notice 

has therefore been considered by the Commission in determining negligence and 

unwarrantability. The utilization of prior charging documents in this manner does not therefore 

require that those charging documents be final. It is not the violation within the charging 

documents that is critical but only the notice provided by the issuance of those charging 

documents. 

Contestant's remaining arguments (numbered 3 through 7 herein) go primarily to the 

weight to be given the evidence and not to its admissibility. Under the circumstances the 

proffered 23 charging documents are admitted collectively as Government Exhibit No. 6. 

Gary 

I 

elick 

~ Administration Law Judge 

(202) 434-9977 

134 
Distribution: (Facsimile and First Class Mail) 

Ann G. Paschall, Esq., Office of the Solicitor, U.S. Dept. of Labor, 61 Forsyth Street, S.W., 

Room 7Tl0, Atlanta, GA 30303 

Warren B. Lightfoot, Jr., Esq., Maynard, Cooper & Gale; P.C., 1901 Sixth Avenue North, 2400 

AmSouth/Harbert Plaza, Birmingham, AL 35203 

Guy Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444 

/mca 

135 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WEBSTER COUNTY COAL, LLC, 

Respondent 

February 23, 2004 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2003-332 

A.C. No. 15-02132-03851 

Docket No. KENT 2003-333 

A.C. No. 15-02132-03852 

Dotiki Mine 

ORDER 

Respondent filed a Motion to Compel on February 6, 2004, seeking production by the 

Secretary of three categories of documents pertaining to the above-captioned cases. The 

Secretary has asserted that the documents are protected by the deliberative process privilege. 

Subsequent to the Secretary's refusal to produce the documents, but prior to the filing of this 

Motion, the Secretary changed her representative. 

A teleconference with the parties was held on February 18, 2004. Two of the three 

categories of disputed documents were resolved. The sole issue remaining is whether 

Respondent is entitled to the Health and Safety Conference Worksheets respecting the citations 

in these dockets. The Secretary, through her new representative, argued that the documents are 

protected by the work product privilege, rather than the deliberative process privilege. I denied 

her request to advance an alternative legal theory. 

The deliberative process privilege protects communications between subordinates and 

supervisors within the government that are "antecedent to the adoption of an agency policy." 

Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 992 (June 1992) 

(citation omitted). The deliberative process privilege "covers recommendations, draft 

documents, proposals, suggestions, and other subjective documents which reflect the personal 

opinions of the writer rather than the policy of the agency." Coastal States Gas Corp. v. Dep't of 

Energy, 617 F.2d 854, 866 (D. C. Cir. 1980). Documents that are protected by the privilege "are 

those which would inaccurately reflect or prematurely disclose the views of the agency, 

suggesting as agency position that which is as yet only a personal position." Id. Nevertheless, 

"even if the document is pre-decisional at the time it is prepared, it can lose that status if it is 

adopted, formally or informally, as the agency position on an issue or is used by the agency in its 

dealings with the public." Id. 

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I find that the Worksheets are relevant to the characterizations of the cited violations. To 

the extent that the contents are fact-based, i.e., summaries of the parties' respective 

representations and negotiations in the meetings, they are not protected by the deliberative 

process privilege and Respondent is entitled to them. Respondent is not entitled, however, to the 

personal opinions and deliberations of the authors. The Secretary shall redact any portions of the 

Worksheets that reflect the personal analyses, opinions and recommendations of the MSHA 

personnel who prepared them. 

WHEREFORE, Respondent's Motion to Compel is GRANTED, and it is ORDERED 

that the Secretary provide Respondent with a copy of the Health and Safety Conference 

Worksheets, redacted as directed, as soon as is practicable. 

Distribution: (Certified Mail) 

Anne T. Knauff, Esq., Office of the Solicitor, U. S. Department of Labor, 2002 Richard Jones 

Road, Suite B-201, Nashville, TN 37215 

Thomas C. Means, Esq., Crowell & Moring, LLP, 1001 Pennsylvania Avenue, NW, Washington, 

DC 20004-2595 

ej 

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