NOVEMBER 2003 

THERE WERE NO COMMISSION DECISIONS 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-10-2003 Colorado Lava, Inc. 

11-17-2003 Eddie M. Jeanlouis, Sr. V. Morton International 

11-18-2003 Drummond Company, Inc. 

11-24-2003 Cactus Canyon Quarries of Texas, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-18-2003 Joseph Spencer v. J ahna Industries, Inc. 

i 

BAJ 2001-2 

CENT 2002-279-DM 

SE 2003-99-R 

CENT 2001-285-M 

SE 2003-183-DM 

Pg.667 

Pg.673 

Pg.675 

Pg.680 

Pg.686 

NOVEMBER 2003 

No cases were filed in which Review was granted during the month of November: 

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

Secretary of Labor, MSHA, on behalf of Wyman Owens, Gary Watson and Henry Johnson and United 

Mine Workers of America v. Drummond Company, Inc., Docket Nos. SE 2002-134-D, 135-D, 136-D. 

(Judge Weisberger, October 8, 2003) 

ii 

ADMINISTRATIVE LAW JUDGE DEOSIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, Suite 9500 

COLORADO LAV A, INC., 

Applicant, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION 

Respondent. 

Washington, DC 20001 

November 10, 2003 

EQUAL ACCESS TO JUSTICE 

PROCEEDING 

Docket No. EAJ 2001-2 

Mine ID No. 05-04232 

Mine: Antonito Plant 

DECISION 

Appearances: Mark W. Nelson, Esq., Mark W. Nelson, Esq., Hall & Evans, LLC,1200 17th 

Street, Suite 1700, Denver, CO, for the Applicant; 

Mark R. Malecki, Esq., U.S. Department of Labor, Arlington, VA, for the 

Respondent. 

Before: Judge Weisberger 

This proceeding is before me based upon an Application for Award of Fees and Expenses 

under the Equal Access to Justice Act, 5 U.S.C. Section 504 (EAJ Act), and a subsequent 

Amended Application. In the underlying discrimination proceeding brought under Section 

105(c)(2) of Federal Mine Safety and Health Act of 1977 (the Act), a decision was issued 

sustaining Colorado Lava's Motion to Dismiss, which had been made at the conclusion of the 

Secretary's case, and finding that the Secretary had not established its prima facie case. 23 

FMSHRC 213 (Feb 13, 2001). The Secretary petitioned the Commission for discretionary 

review which was granted by the Commission. In its decision, the Commission vacated the 

dismissal of the Discrimination Compliant, and sustained the initial findings of protected 

activities and adverse actions. 24 FMSHRC 350 (April 2002). The Commission also held.that 

circumstantial evidence of discriminatory motivation and reasonable inferences drawn therefrom · 

may be used to sustain the prima facie case. The Commission noted findings in the initial 

decision that pointed to evidence of indicia of disparate treatment and also noted other evidence 

of record that could support a finding of disparate treatment. 24 FMSHRC, supra, at 355. The 

Commission remanded the matter for further proceedings to consider all the evidence tending to 

show improper motivation including that of disparate treatment. 

Colorado Lava prevailed in the Decision on Remand in that it was found that the 

Secretary failed to establish, by a preponderance of evidence, that the adverse action taken by 

667 
Colorado Lava was motivated in any part by the miner's protected activity. 1 

The EAJ Act, which is implemented by the Commission at 29 C.F.R. Section 2404.00 et. 

seq., provides that a prevailing applicant may be awarded attorney's fees and expenses unless . 

the position of the Secretary \\'.as subst~p.tially justified. In addition, the Act as implemented by 

the Commission provides that an eligible party may receive an award of fees and expenses if the 

demand of the Secretary is substantially in .excess of the decision of the Commission and 

unreasonable when compared with such decision. In essence, it is the position of Colorado Lava 

that it is entitled to attorney's fees and expenses on the ground that it prevailed in the proceeding 

brought against it by the Secretary, and that the Secretary's decision to commence the proceediflg 

was not substantially justified. As a further basis for the award of fees, Colorado Lava asserts 

that the Secretary's demand was substantially in excess of the Commission's decision and was 

unreasonable. The Secretary argues that an award should be denied regarding the first statutory 

basis asserted by Colorado Lava since the Secretary s position was reasonable in law and fact. 

The secretary also seeks to avoid an award by asserting, in essence, that since Colorado Lava 

prevailed in the underlying preceding, it is not entitled to an award under ~~ction 2704.105(b), 

supra. The Secretary also argues that an award under this Section should be denied as its demand 

was not unreasonable. For the reasons set forth below I agree with the Secretary's position, and 

find that Colorado Lava's application should be denied. 

I. Whether the Secretary's Position was Substantially Justified (29 C.F.R. §105(a)) 

A. The underlying Discrimination Proceeding. 

In October 1999 Andrew Garcia, who was employed at Mountain West Colorado 

Aggregates (MWCA) Antonito bagging facility made safety complaints regarding some 

equipment to his supervisor, David Mccarroll, the plant manager. Subsequently, Garcia 

complained to MSHA about the condition of this equipment. Mccarroll acknowledged being 

upset with Garcia for complaining to MSHA. 

On June 5, 2000, Colorado Lava purchased the Antonito site from MWCA. Prior to that 

time, Ronald Bjustrom, the 80 percent owner of Colorado Lava, informed Mccarroll that he 

would be retained as plant manager. Also, prior to June 5, 2000, Bjustrom retained Terry 

Kissner, who is not an employee of Colorado Lava, to do the hiring. Kissner interviewed all 

MWCA employees, and made the final decision to rehire all of them except Garcia and Ernie 

Lucero, a mechanic. Bjustrom did not participate in that decision. 

1

The miner complainant, Andrew Garcia, appealed the decision to the United States Court of 

Appeals, Tenth Circuit. Subsequently, Garcia and Colorado Lava filed before the Tenth Circuit, a 

stipulation to dismiss, asserting that pursuant to the agreement of the parties they stipulated that the 

appeal may be dismissed with prejudice. 

668 
B. The Parties' Arguments 

1. Colorado Lava's Arguments 

In essence, Colorado asserts, in support of its argument that the Secretary's position was 

not substantially justified, that at the time the depositions were taken, prior to the trial of the 

discrimination proceeding, MSHA's special investigator admitted he did not have any evidence 

that Mccarroll was involved in deciding who Colorado Lava was going to hire. He also admitted 

he did not have any evidence that McCarroll shared with Bjustrom information regarding 

Garcia's protected activities. Further, Colorado Lava asserts that the deposition testimony 

indicates there was not any evidence that MSHA had investigated why Kissner chose another 

employee, Robert Duran over Garcia. Lastly, Colorado Lava asserts that during MSHA's 

investigation of Garcia's discrimination complaint, it discovered that Bjustrom and Kissner were 

not made aware of Garcia's protected activities until after Duran was hired instead of Garcia. 

Additionally, Kissner told MSHA during its investigation that he had never heard of Garcia until 

June 5, 2000, when he interviewed him. 

2. The Secretary's Arguments 

In response, the Secretary refers to the fact that it was found in the initial decision, and 

concurred in by the Commission, that Garcia had engaged in protected activities and that 

Colorado Lava had taken adverse action against him. Further, the Secretary argues that its 

position that Garcia was discriminated against was reasonable in fact, based on inferences of 

disparate treatment by Colorado Lava of Garcia, which raises an inference of discriminatory 

motivation. 

C. Discussion 

The burden of proof is on the Secretary to establish that her position was substantially 

justified, Section 105(b), supra. In Secretary v Black Diamond Construction Inc., 21 FMSHRC 

1188, 1194 (Nov. 1999), the Commission, citing Pierce v Underwood, 487 U.S. 552, 565 (1988), 

noted that in Pierce, the Supreme Court" ... set forth the test for substantial justification as 

follows: 'a position can be justified even though it is not correct, and we believe it can be 

substantially (i.e. for the most part) justified if a reasonable person could think it correct, that is, 

if it had a reasonable basis in law and fact.' Id. at 566 n.2." 

In support of the Secretary's position, I note that in the initial decision in this matter it 

was found that Garcia had engaged in protected activities and that Colorado Lava had taken 

adverse action against him. (21 FMSHRC, supra.) These findings were concurred in by the 

Commission. (21 FMSHRC, supra.) I take cognizance of the fact that prior to the hearing on 

the underlying discrimination complaint, the MSHA's special investigator who investigated 

Garcia's discrimination complaint testified in a deposition that in his investigation he did not 

learn of any evidence that Mccarroll ever shared any information with Bjustrom concerning any 

669 
protected activity that Garcia engaged in while an employee of MWCA. The investigator also 

admitted that he did not have any "understanding of what information, if any" that Bjustrom gave 

to Kissner concerning any employees prior to Kissner's conducting his interviews (Colorado 

Lava's Amended Application, Exhibit C). The MSHA Investigator also indicated he was not 

aware of any evidence that Mccarroll had any role or involvement in deciding who was doing to 

be hired by Colorado Lava. Further, he conceded that no attempt was made by MSHA to 

determine how much experience Garcia had versus anyone else who was retained by Colorado 

Lava. Also, Bjustrom testified at the temporary reinstatement hearing that McCarroll told him 

that Garcia had filed grievances, but he (Bjustrom) did not talce any part in the decisions by 

Kissner regarding whom Colorado Lava should hire from among MWCA's employees. Further, 

Kissner testified at the temporary reinstatement hearing that Mccarroll had not provided him 

with any information regarding the interviewees, and that he decided to hire Duran over Garcia 

because the former had more experience at the specific work site in question. 

It is the position of Colorado Lava, in essence, that based on these facts, known to the 

Secretary prior to the filing of its compliant of discrimination, no reasonable person could 

conclude that there was any causal connection between Garcia's having engaged in protected 

activities while an employee at MWCA, and the adverse action taken by Colorado Lava not to 

rehire him. 

The Commission, in vacating the initial decision in the discrimination proceeding, held 

that" ... the consideration of indirect evidence when examining motivation and intent necessarily 

involves the drawing of inferences. As the Commission stated in Bradley v. Belva Coal Co., 

'circumstantial evidence [of discriminatory motivation] and reasonable inferences drawn 

therefrom may be used to sustain a·prima facie case' 4 FMSHRC 982, 992 (June 1982)." 24 

FMSHRC, supra, at 354. The indicia discriminatory intent include the disparate treatment of the 

complainant. Phelps Dodge Coro., 3 FMSHRC 2508, 2510 (Nov. 1981) In this connection, the 

Commission in vacating the initial discrimination decision, noted the indicia of disparate 

treatment found in that decision. Specifically, it noted that although Garcia was not chosen by 

Colorado Lava to be hired as a loader operator position because another employee had more 

experience, 24 FMSHRC, supra. However, a mechanic with less experience than another 

employee was offered a position with Colorado Lava, and the latter, who was not rehired, was 

subsequently offered another position with the Company, but Garcia was not, 24 FMSHRC, 

supra. Also, when considering which positions to eliminate, Bjustrom only evaluated the loader 

operator and mechanic positions, but no other positions, 24 FMSHRC, supra. Further, the 

Commission noted other evidence of record that could support a finding of disparate treatment, 

24 FMSHRC, supra. 

In the remand decision, it was held, based on the above evidence, that it may be inferred 

that Garcia was the subject of disparate treatment, 24 FMSHRC, supra. However, the probative 

weight to be accorded inference evidence of disparate treatment, when considering all the 

remaining indicia of motivation set forth in Chacon, supra, is strictly a matter of judgement. 

Thus, the fact that it was concluded in the decision on remand that the Secretary failed to 

670 
establish by a "preponderance of the evidence ... that the adverse action taken by Colorado Lava 

was motivated in any part by Garcia's protected activities" 25 FMSHRC 144, 151(March2003), 

does not mean that a reasonable person could not have reached a contrary conclusion by 

weighing the evidence differently. Under these circumstances it is clear the Secretary could not 

have been expected to predict how a judge would weigh inferences versus live testimony, and all 

the various Chacon factors. See Concrete Aggregates, LLC, 25 FMSHRC 500, 503 (Aug. 2003) 

(Judge Manning). 

For all these reasons I conclude the Secretary had met its burden in establishing that it's 

position in this case was substantially justified. 

Il. Entitlement to an Award Under Section 2704.105(b), supra. 

Colorado Lava also predicates an award under Section 105(b ), supra, asserting that the 

Secretary's demand was substantially in excess of the decision of the Commission, and was 

unreasonable when compared with that decision. 

Section 105(b), supra, provides, as pertinent, that where the Secretary's demand is 

substantially in excess of the Commission's decision" ... the Commission shall award_to an 

eligible applicant fees and expenses." (Emphasis added.) In contrast, an award under 105(a), 

supra, is to be awarded to a "prevailing applicant" where the Secretary's position was not 

substantially justified. 

29 C.F.R. § 2704.100 sets forth the purpose of regulations implementing the EAJ as 

follows: "[A]n eligible party may receive an award when it prevails over the Mine Safety and 

Health Administration unless the Secretaiy's position is substantially justified." (Emphasis 

added) Section 2704.100, supra, next provides as follows: "In addition to the foregoing ground of 

recovery, an eligible~ may receive an award if the demand of the Secretary is substantially in 

excess of the decision of the Commission." (Emphasis added.) 

It appears that under the Commission's rules it is contemplated that a prevailing~. 

such as Colorado Lava herein, who seeks an award of fees is eligible to apply only under Section 

105(a), supra. This conclusion is borne out by the fact that Section 2704.104 sets forth the 

different eligibility requirements of applicants for awards of fees under Sections 105(a) and (c), 

supra. The criteria for eligibility under Section 105(b), supra, pertain solely to the applicants net 

worth, number of employees or annual receipts, Section 2700.104(c). In contrast, 29 C.F.R. § 

2704.104(b) sets forth eligibility criteria "[f]or purposes of awards under Section 2704.105(a) for 

prevailing parties[.]" (Emphasis added). Thus, as stated by the Commission in L & T 

Fabrication and Construction, Inc. 22 FMSHRC 509, 513 (Apr. 2000), in discussing eligibility 

for an award under Section 504(a)( 4) of the EAJ Act, which is implemented in Section 105(b ), 

supra, as follows: "the 1996 Amendments to the EAJ [which added Subsection 4 to Section 

504(a) of the Act] expanded the basis for covering fees and expenses to include certain claims 

against private parties who did not prevail against the government." 

671 
Considering all the above, I conclude that a prevailing party is entitled to an award under 

Section 105(a), supra. In contrast, an award under Section 105(b) is available for those eligible 

entities who were not a prevailing party. Inasmuch as Colorado Lava was the prevailing party 

therein, I find that it is not entitled to any award under Section 105(b ), supra. 

D. Conclusion 

For all the above reasons, I conclude that Colorado Lava is not entitled to an award of 

fees and expenses under the Equal Access to Justice Act. Accordingly, its application is denied. 

ORDER 

It is Ordered that this case be Dismissed. 

LWei~ Administrative Law Judge 

Distribution (Certified Mail) 

Mark W. Nelson, Esq., Hall & Evans, LLC, 1200 17th Street, Suite 1700, Denver, CO 80202-

5817 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor, West, Arlington, VA 22209-2247 

672 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

November 17, 2003 

EDDIE M. JEANLOUIS, SR., 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. CENT 2002-279-DM 

SC MD 2002-04 

MORTON INTERNATIONAL, 

Respondent 

Weeks Island Mine & Mill 

Mine ID 16-00970 

Appearances: 

Before: 

SUPPLEMENTAL DECISION 

AND 

FINAL ORDER APPROVING SETTLEMENT 

Toni K. Jeanlouis, St. Martinsville, Louisiana, for the Complainant; 

Willa B. Perlmutter, Esq., Patton Boggs, LLP, Washington, DC for the 

Respondent. 

Judge Feldman 

This case is before me based on a discrimination complaint filed pursuant to section 

105(c)(3) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) 

(1994) (the "Act"), by Eddie M. Jeanlouis, Sr., against Morton International ("Morton"). 

This discrimination proceeding concerns Jeanlouis' March 23, 2001, two week suspension 

without pay. Jeanlouis seeks to recover lost wages and related expenses. 

Following an evidentiary hearing, it was determined that Morton's suspension 

of Jeanlouis violated section 105(c) of the Act. Decision on Liability, 25 FMSHRC 536 

(Sept. 2003) (AU). In the initial liability decision, the parties were directed to agree on the 

specific relief that should be awarded, or, alternatively, to file documentation in support of their 

separate proposals for relief. Id. at 548-49. After several telephone conferences, the parties 

advised that they had reached a settlement agreement. On November 13, 2003, Morton filed 

a Motion to Approve Settlement. 

The settlement provisions include Morton's waiver of its right to appeal the Decision on 

Liability, Jeanlouis' withdrawal of his discrimination complaint, and other confidential 

provisions concerning consideration and the release of claims. I have reviewed the settlement 

terms and I conclude the parties' agreement is reasonable and in the public interest. 

673 
ACCORDINGLY, the parties' motion for approval of settlement IS GRANTED. 

Pursuant to the parties' agreement, the terms and conditions of the settlement 

ARE DECLARED CONFIDENTIAL. The settlement IS ORDERED PLACED 

UNDER SEAL subject to review only by the Commission or other appellate body. 

In view of the settlement, this discrimination matter IS DISMISSED. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Toni K. Jeanlouis, Eddie M. Jeanlouis, Sr., 1502 Lubre Lane, St. Martinsville, LA 705882 

WillaB. Perlmutter, Esq., Patton Boggs, LLP, 2550 M Street, N.W., Washington, DC 20037 

/hs 

674 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, DC 20001-2021 

DRUMMOND COMPANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

November 18, 2003 

CONTEST PROCEEDING 

Docket No. SE 2003-99-R 

Order No. 7679499; 3/19/2003 

Shoal Creek Mine 

Mine ID: 01-02901 

DECISION 

Appearances: Timothy M. Biddle, Esq., and Bridget E. Littlefield, Esq., Crowell & Moring, 

LLP, Washington, DC, for the Contestant. 

Thomas A. Grooms, Esq., Office of the Solicitor, u:s. Department of Labor, 

Nashville, TN 37215, for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based upon a Notice of Contest filed by Drummond Company, Inc. 

(Drummond) challenging the issuance to it by the Secretary of Labor of an Order alleging a 

violation of Section 107(a) of the Federal Mine Safety and Health Act of 1977 (the Act). After 

an Answer was filed by the Secretary of Labor, a hearing was held in Birmingham, Alabama on 

July 22, 2003, and continued in Washington, DC, on September 3, 2003. Subsequent to the 

hearing, each party filed proposed findings of fact and a brief. 

Findings of Fact 

Drummond operates the Shoal Creek Mine, an underground coal mine. On March 19, 

2003, at approximately 1:50 p.m., after MSHA Inspector John Terpo had completed an 

inspection of part of the mine and was preparing to leave, he entered the office of Drummond 

safety inspector Ed Sartain. Sartain informed him that Wayne Cox, a certified examiner, had 

found 6.4% methane in Entry No. 1 of the G-2 longwall (old faces). Terpo testified that Sartain 

indicated to him that some ventilation controls where missing or damaged, that in the last open 

cross-cut the curtains had been rolled up, and that a permanent stopping separating Entries No. 2 

and No. 3 was down. Terpo and Sartain then went to look at the mine map in order for Terpo to 

determine what area was affected by the methane. Terpo determined that the problem affected 

675 
Entries No. 1, No. 2, and No. 3 in the old faces area of the G-2 longwall panel. At 2:05 p.m., 

Terpo orally issued an imminent danger order to Sartain identifying the affected area as Entries 

No. 1, No. 2, and No.3 of the old faces of the G-2 longwall panel. 

According to Terpo, when he was informed by Sartain about the existence of 6.4% 

methane, which is in the explosive range, he was concerned because he knew the mine liberated 

eight million cubic of methane in a twenty-four hour period, and there had been three methane 

ignitions during the quarter in which he issued the imminent danger order. Also, he knew that 

the Shoal Creek Mine was mining the Blue Creek Seam, the same seam of coal in which the Jim 

Walter No. 5 Mine, approximately 30 miles from the site in question, was mining when it 

experienced a fatal explosion. Further, he was concerned about the presence of electrical water 

pumps in the area where the excessive methane had been located. He explained that these 

electrical pumps constituted an ignition source in the presence of methane in the explosive range, 

i.e., between five and fifteen percent. Additionally, he testified that Sartain told him there were 

eight people working in the area. 

Terpo opined that the presence of methane in an explosive range is an imminent danger if 

there is "power in the area" (Tr. 157), and personnel working in the area. He explained that, 

accordingly, he issued the 107(a) order" ... because there was methane in excess of five percent 

in an area where personnel were working and where there was power." (Tr. 178). In essence, he 

further explained the basis of his order by noting that at approximately 2:00 p.m. he had been 

told that methane existed, and no one told him that the condition had been corrected and no 

longer existed. 

Discussion 

The Secretary argues, in essence, that in determining the validity of a Section 107(a) 

withdrawal order the standard to be applied is, citing Blue Bayou Sand and Gravel, 18 FMSHRC 

853 (1996), and V-P Mining Co., 15FMSHRC1531 (1993), is whether the inspector abused his 

discretion. Thus, the Secretary argues that the legitimacy of the 107(a) order must be measured 

" ... against what the inspector reasonably and in good faith found - through his investigation - to 

be occurring at the mine at the moment when he issued the order." Thus, the Secretary argues 

that Terpo acted reasonably and in good faith in issuing the withdrawal order after he was told by 

Sartain, a Drummond safety inspector, that an explosive amount of methane had been found in 

Entry No. 1, G-2 longwall panel (old faces). In further arguing that Terpo's decision was not an 

abuse of his discretion, the Secretary refers to all the surrounding circumstances that concerned 

Terpo, including the mine' s high rate of methane liberation, history of ignitions, its location in 

the same seam as another mine that had experienced a fatal explosion, the presence of electrical 

water pumps in the area in question, and the presence of eight miners underground. The 

Secretary further asserts, citing Terpo's testimony, that the only information he had when he 

issued the order in question was the presence of an explosive level of methane without any 

notification that its cause had been identified and corrected. Thus, at the time he issued his order, 

he had not found that the "conditions or practices which caused some imminent danger no longer 

676 
exists [ed]" (Section 107(a), supra, of the Mine Act). 

Further Discussion 

Section 107(a) of the Act requires an inspector to issue a withdrawal order upon a finding 

by inspection or investigation that "an imminent danger exists". Section 3G) of the Act defines 

an "imminent danger" as " ... the existence of any condition ... in a coal or other mine which 

could reasonably be expected to cause death or serious physical harm before such condition or 

practice can be abated [. ]" 

In a recent decision, I reviewed the current body of commission law regarding the 

standard to be applied in deciding whether the Secretary met its burden of establishing the 

existence of an imminent danger as defined in Section 3(j) of the Act, supra. Drummond Co. 

Inc., 25 FMSHRC-; (October 14, 2003). I concluded that Commission doctrine requires that it 

be established by a preponderance of evidence that a hazardous condition or practice has a 

reasonable potential to cause death or serious injury within a short period of time. Drummond 

Co. Inc., supra, -, slip op. at 7, and cases cited therein. 

On the other hand, the Secretary asserts that the correct standard to be applied, under 

recent Commission case law, is whether the inspector acted reasonably and in good faith. I find, 

that for the reasons that follow, applying either standard the Secretary has failed to establish that 

the 107(a) Order herein was validly issued. 

Assuming arguendo that the standard to be applied is whether the inspector acted 

reasonably and in good faith in concluding that an imminent danger existed when he issued his 

order, the Secretary has failed in its burden in establishing that the facts known to Terpo or were 

reasonably available to him supported the imminent danger order (see Wyoming Fuel Co., 

supra). Thus, the evidence adduced fails to establish that the facts known to Terpo or were 

reasonably available to him supported the issuance of the imminent danger order. (See, 

Wyoming Fuel Co, supra, at 1292). The only facts known to Terpo regarding excessive methane 

readings consist of statements made to him by Sartain regarding the finding of methane at six 

point four percent in the areas at issue. However, Terpo indicated that Sartain did not tell him at 

what time the excessive methane readings were taken. In addition, there is no evidence that he 

knew what the methane readings were at the time he issued his order. In evaluating Terpo's 

exercise of discretion it is also necessary to focus on the specific facts Terpo took into account in 

reaching the decision that conditions in the area in question constituted an imminent danger. His 

testimony on direct examination is unclear regarding specifically what facts supported his 

imminent danger order. In his initial testimony on direct examination regarding the sequence of 

events, he testified that after he learned the existence of methane in an explosive range and 

determined the affected area, he issued the 107(a) order. He did not further elaborate on any 

other facts-supporting the order. In subsequent testimony on direct examination, Terpo indicated 

"concerns" he had after being informed of the presence of methane. He was concerned that the 

mine liberates more than eight million cubic feet of methane, that the mine experienced three 

677 
methane explosions in the same quarter as the issuance of his order and that methane was 

liberated from the same coal seam located in a neighboring mine causing a fatal explosion. 

Terpo agreed that the former two facts "[had] an impact on his decision to issue ... the danger 

order (Tr. 151-152). (Emphasis added.) 

In evaluating the reasonableness ofTerpo's issuance of the 107(a) Order, it is necessary 

to consider his specific findings regarding the existence of an imminent danger. The only 

testimony in this regard is found in his cross-examination, which according to the Secretary, 

summarizes these findings. He was asked as follows: "Is it an imminent anytime [methane 

between five and fifteen percent] exists?" (Tr. 167). He answered as follows: "If there are 

personnel working in the area and there is power in the area, yes it is an imminent danger." (Tr. 

167). 

It thus appears that there is not any clear indication in Terpo's testimony that he 

considered the presence of methane in an explosive amount, alone, to constitute an imminent 

danger. In his opinion, such a finding is conditioned on the presence of: (1) personnel working 

in the area, and (2) power in the area. Terpo' s know ledge of the existence of these factors is 

based solely on what Sartain told him regarding these conditions. It is significant to note that 

Sartain told him that Drummond had de-energized all power to the area, and that he, Sartain, had 

told personnel to withdraw, "with the exception of personnel needed to determine the problem 

and correct it" (sic.) (Tr. 173). There is no evidence that Terpo had knowledge of any fact to 

contradict Sartain' s statements to him. Terpo did not conduct any other investigation to learn if 

men had already been withdrawn. 

In summary, Terpo's testimony indicates methane is an imminent danger if there is power 

in the area. However, the only facts he knew indicated that there was no power in the area. 

Within this framework, I find that his decision to issue a 107(a) order was, accordingly, not 

reasonable. 

Further, had Terpo made a reasonable investigation, he would have found that according 

to Norwood Brown, the day-shift longwall production foreman, on the date in question, after it 

was discovered that various ventilation controls were missing or improperly installed, and prior 

to the issuance of the imminent danger order, these conditions were rectified, methane testing 

revealed levels below one point five percent, and there was not any electrical power to the 

longwall area. 

Thus, the record fails to establish that there was a reasonable potential of a methane 

explosion or ignition causing death or serious injury occurring within a short period of time at the 

time the order was issued. 

Accordingly, for all the above reasons, I find that it has not been established that the 

107(a) Order herein was validly issued. Therefore the Notice of Contest is sustained, and the 

Order is Dismissed. 

678 
Order 

It is Ordered that Drummond's Notice of Contest be Sustained and that Order 

No.7679499 be Dismissed. 

£Weis~ Administrative Law Judge 

Distribution: 

Timothy M. Biddle, Esq., Bridget E. Littlefield, Esq., Crowell & Moring, lLP, 1001 

Pennsylvania Ave., N.W., Washington, DC 20004 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones 

Rd., Suite B-201, Nashville, TN 37215 

/sc 

679 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

CACTUS CANYON QUARRIES OF 

TEXAS, INCORPORATED, 

Respondent 

Suite 9500 

Washington, DC 20001 

November 24, 2003 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2001-285-M 

A.C. No. 41-00009-05550 

Docket No. CENT 2001-286-M 

A.C. No. 41-00009-05551 

Docket No. CENT 2001-363-M 

A.C. No. 41-00009-05552 

Docket No. CENT 2001-364-M 

A.C. No. 41-00009-05553 

Docket No. CENT 2001-379-M 

A.C. No. 41-00009-05554 

Docket No. CENT 2002-80-M 

A.C. No. 41-00009-05555 

Docket No. CENT 2002-124-M 

A.C. No. 41-00009-05556 

Mine: Fairland Plant and Quarries 

DECISION APPROVING SETTLEMENT 

Appearances: Thomas A. Paige, Esq., U.S. Department of Labor, Office of the Solicitor, 

Dallas, Texas, for the Petitioner; 

Andy Carson, Esq., Marble Falls, Texas, for the Respondent. 

Before: Judge Schroeder 

These cases came before me for hearing on November 12, 2003, in Burnett, Texas. At 

the beginning of the hearing the parties informed me that a settlement had been agreed upon 

between them. The terms of the settlement were presented in open court as reflected by the 

transcript filed in the record. This Decision is intended to summarize the terms of the settlement 

as I approved it at the hearing. I found the terms of the settlement to be reasonable and in the 

public interest. 

680 
The settlement is best described by considering each mine inspector citation of concern to 

the parties in terms of any changes to both the Civil Penalty amount and the assessment factors. 

Taking the cases in order results in the following tabulation of amounts and changes: 

In CENT 2001-285-M 

Citation Orig. Assess. Settled Assess. Changes to Citation 

7896108 $55.00 $55.00 Modify gravity to "no lost 

workdays" 

7896110 $55.00 $55.00 No change 

7896112 $55.00 $0.00 Vacated 

7896113 $55.00 $55.00 Modify negligence to "low" 

7896115 $242.00 $55.00 Modify gravity to "unlikely" 

(now non-S&S) 

7896116 $242.00 $0.00 Vacated 

7896117 $277.00 $0.00 Vacated 

7896118 $173.00 $55.00 Modify gravity to "unlikely" 

(now non-S&S) 

7896119 $317.00 $0.00 Vacated 

7896120 $475.00 $55.00 Modify gravity to "unlikely" 

(now non-S&S) 

7896121 $55.00 $0.00 Vacated 

7896122 $55.00 $55.00 No change 

7896123 $55.00 $55.00 Modify gravity to "no lost 

workdays" 

7896124 $475.00 $55.00 Modify gravity to "unlikely" 

(now non-S&S) 

7896125 $55.00 $0.00 Vacated 

681 
7896128 $475.00 $0.00 Vacated 

In CENT 2001-286-M 

Citation Orig. Assess. Settled Assess. Changes to· Citation 

7896129 $55.00 $55.00 No change 

7896130 $242.00 $55.00 Modify gravity to "unlikely" 

(now non-S&S) 

7896131 $55.00 $0.00 Vacated 

7896132 $55.00 $55.00 No change 

7896133 $242.00 $55.00 Modify gravity to "unlikely" 

(now non-S&S) 

7896135 $317.00 $317.00 No change 

7896136 $55.00 $55.00 No change 

7896137 $242.00 $0.00 Vacated 

7896138 $55.00 $55.00 No changes. Modified in 

conference 

In CENT 2001-363-M 

Citation Orig. Assess. Settled Assess. Changes to Citation 

6207806 $161.00 $161.00 No change 

6207807 $55.00 $55.00 No change 

6207808 $161.00 $161.00 No change 

6207809 $55.00 $55.00 Modify negligence to 

"moderate" 

6207810 $55.00 $55.00 No change to citation as 

modified in conference 

682 
6207811 $113.00 $113.00 No change to citation as 

modified in conference 

6207812 $55.00 $55.00 Modify gravity to "lost 

workdays or restricted duty" 

6207813 $207.00 $0.00 Vacated 

6207814 $55.00 $55.00 Modify gravity to "lost 

workdays or restricted duty" 

6207815 $161.00 $55.00 Modify gravity to "unlikely" 

(now non-S&S) 

6207816 $55.00 $0.00 Vacated 

6207817 $55.00 $0.00 Vacated 

6207818 $55.00 $55.00 No change to citation as 

modified in conference 

6207819 $55.00 $55.00 No change 

6207820 $55.00 $55.00 Modify gravity to "lost 

workdays or restricted duty" 

6207821 $55.00 $0.00 Vacated 

6207822 $55.00 $0.00 Vacated 

6207823 $259.00 $55.00 Modify gravity to "unlikely" 

(now non-S&S) 

6207824 $55.00 $55.00 No change 

In CENT 2001-364-M 

Citation Orig. Assess. Settled Assess. Changes to Citation 

6207825 $55.00 $0.00 Vacated 

6207826 $161.00 $161.00 No change to citation as 

modified in conference 

683 
6207827 $259.00 

6207828 $55.00 

6207829 $161.00 

6207830 $55.00 

6207834 $259.00 

6207839 $55.00 

In CENT 2001-379-M 

Citation Orig. Assess. 

7896126 $700.00 

7896127 $1,500.00 

In CENT 2002-80-M 

Citation Orig. Assess. 

6209870 $55.00 

$55.00 

$55.00 

$55.00 

$0.00 

$0.00 

$55.00 

Settled Assess. 

$500.00 

$500.00 

Settled Assess. 

$55.00 

684 

Modify gravity to "unlikely" 

and negligence to "moderate" 

(now non-S&S) 

No change to citation as 

modified in conference 

Modify gravity to "unlikely" 

(now non-S&S) 

Vacated 

Vacated 

No change 

Changes to Citation 

No change to citation as 

modified in conference 

Modify to allege violation of 

section 104(a) instead of 

104(d); no other change in 

citation as modified in 

conference. 

Changes to Citation 

Modify negligence to 

"moderate" 
In CENT 2002-124-M 

Citation Orig. Assess. .Settled Assess Changes to Citation 

6209922 $55.00 $0.00 Vacated 

The total amount originally proposed by the Secretary as a Civil Penalty was $9,581.00. 

The settlement results in a total Civil Penalty of $3,618.00. Therefor, it is 

ORDERED that the Joint Motion to Approve Settlement is granted. The Respondent is 

directed to pay a Civil Penalty of $3,618,00 within 30 days of the date of this Order. The parties 

will bear their own costs. 

Distribution: 

nvin Schroeder 

Administrative Law Judge 

Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 525 S. Griffin Street, 

Suite 501, Dallas, TX 75202 (Certified Mail) 

Andy Carson, Esq., 7232 County Road 120, Marble Falls, TX 78654 (Certified Mail) 

/mh 

685 

ADM:ImSTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

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

JOSEPH SPENCER, 

v. 

Washington, D.C. 20001-2021 

Complainant 

Fax No.: (202) 434-9949 

November 18, 2003 

DISCRIMINATION PROCEEDING 

Docket No. SE 2003-183-DM 

MSHA Case No. SE MD-03-08 

JAHNA INDUSTRIES, INC., 

Respondent 

Independent Mine 

Mine ID 08-01021 

ORDER DENYING MOTION TO DIS1\11SS 

NOTICE OF HEARING 

AND 

PREHEARING ORDER 

Joseph Spencer, a pro-se claimant, has filed the subject discrimination complaint against 

Jahna Industries, Inc. (Jahna) alleging that he was illegally discharged by Jahna on January 16, 

2003, in violation of section 105(c)(l} of the Federal Mine Safety and Health Act of 1977 (30 

U.S.C. § 815(c)(l)). In its ~swer, Jahna denies it violated the Mine Act when it terminated 

Mr. Spen~er. Further, it moves to dismiss Mr. Spencer's complaint, asserting that the complaint 

fails to state a claim upon which relief may be granted. Jahna points out that Mr. Spencer states 

in his complaint, "I was fired because of a workman's comp[ensation] claim," and Jahna 

correctly notes that "the filing of a Workers' Compensation claim is not within the [Mine Act's] 

definition of prohibited discrimination',. (Discrimination Complaint 2; Answer and Mot. To 

Dismiss 6). 

While I recognize the valid argument raised by Jahna, I also recognize that Mr. Spencer is 

representing himself, and that it has long been the practice of the Commission's judges to 

liberally construe the pleadings of pro-se complainants. This has meant that in identifying the 

protected activity that is alleged to be the cause of discrimination, the Commission and its judges 

have at times looked beyond the immediate cause of termination to the cause or causes from 

which the immediate c~use was derived. They have found that a cause which facially was not 

prohibited by the Act, was in fact prohibited when it was the direct result of a s·afety complaint or 

other protected activity. 

In his complaint, Mr. Spencer asserts that the particular equipment which injured him and 

caused him to file his compensation claim was "wrote up several times in inspection sheet[s] by 

operators and me," that the compensation claim "should not have happened, if ... the [equipment] 

had been fixed," and that "the employees and other managers did not like my thorough 

examination of equipment ... because it gave them a bigger work load" (Discrim. Complt. 2,5). 

686 
Liberally construing Mr. Spencer's complaint, it may be that he is alleging his termination would 

not have happened but for his complaints and reports about the safety of said equipment. 

Because this is not an unreasonable construction of Mr. Spencer's complaint, I cannot grant 

Jahna's motion and dismiss the case. Mr. Spencer is instructed, however, that at trial he will be 

required to establish a prima facie case. To do so, he must prove that he engaged in protected 

activity and the activity in some part motivated his tennination. 

Therefore, this case is set for hearing on the merits on Tuesday, February 24, 2004, at 

8:30 a.m., in the vicinity of Orlando, Florida. The specific courtroom in which the hearing will 

be held will be designated at a later date. The issues are whether Jahna violated section 105(c) of 

the Mine Act when it terminated Mr. Spencer on January 16, 2003, and, if so, the damages and 

costs relating thereto. 

In preparation for the hearing, the parties are directed to complete the following on or 

before January 23, 2004: (a) confer on the possibility of settlement and endeavor to stipulate as 

to all relevant matters which are not in substantial dispute; (b) endeavor to stipulate the issues 

remaining for hearing, and, if unable to stipulate the issues, exchange written agreements of the 

issues as contended by the respective parties; (c) exchange lists of exhibits, and, at the request of 

a party, produce exhibits for inspection and copying; (d) stipulate as to those exhibits which may 

be admitted into evidence without objection and, as to others, indicate whether the exhibit is 

accepted as an authentic document; and (e) exchange witness lists with a synopsis of the 

testimony expected of each witness. 

The parties are further directed to file with the undersigned Administrative Law Judge on 

or before February 10, 2004, a preliminary statement setting forth: (a) lists of exhibits and 

witnesses, together with the parties' synopses of expected testimony; (b) any stipulations entered 

into; and (c) the parties' statement of the issues. 

Any party requiring subpoenas for the attendance of witnesses or the production of 

documents shall file their requests at least fifteen (15) days in advance of the scheduled hearing. 

Any person planning on attending this hearing who requires special accessibility features 

and/or any auxiliary aids (such as sign language interpreters) must request those in advance 

(subject to the limitations set forth in 29 C.F.R. § 2706.150(a)(3) and§ 2706.160(e).) 

~vJ; d-r:g~~ 

David F. Barbour 

Administrative Law Judge 

(202) 434-9980 

687 
Distribution: (Certified) 

Joseph E. Spencer, 739 Sloan Ridge Road, Groveland, FL 34736 

Pedro Fonnent, Esq., Ford & Harrison, LLP 100 S.E. 2ND Avenue, Suite 4500, Miami, FL 33131 

ej 

688 -(:( U.S GOVERNMENT PRINTING OFFICE: 2003 305-032/95255