JULY 2001 

COMMISSION DECISION 

07-31-2001 Lopke Quarries, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

07-09-2001 Table Rock Asphalt Construction Co., Inc. 

07-10-2001 Dynatec Mining Corporation 

07-11-2001 Sec. Labor on behalf of Ernest J. Jensen 

v. Energy West Mining Company 

07-24-2001 Sec. Labor on behalf of William Jenkins and 

Michael Mahon v. Durbin Coal, Inc. 

07-26-2001 U. S. Steel Mining Company, LLC 

07-26-2001 Royal Cement Company, Inc. 

07-30-2001 Kinder Morgan Operating Ltd. 

ADMINISTRATIVE LAW JUDGE ORDERS 

07-11-2001 Excel Mining LLC 

07-11-2001 Hard Rock Mining Company of Olympia, Inc. 

07-25-2001 Asarco Incorporated 

07-27-2001 CDK Contracting Company 

i 

VA 99-17-M 

CENT 2000-268-M 

EAJ 2001-3 

WEST 2000-201-D 

WEVA 2000-31-D 

SE 2000-245-M 

WEST 2000-474-M 

KENT 2001-264-R 

KENT 2001-88 

WEST 2000-306-M 

WEST 2001-123-M 

WEST 2001-154-RM 

Pg. 705 

Pg. 719 

Pg. 732 

"Pg. 717 

Pg. 746 

Pg. 759 

Pg. 764 

Pg. 770 

Pg. 773 

Pg. 776 

Pg. 779 

Pg. 783 
JULY 2001 . 

No case was filed in which review was granted during the month of July 

Review was denied in the following cases during the month of July: 

Lue Wilson v. Sidco Minerals, Docket No. CENT 2000-87-DM. (Chief Judge Barbour, 

June 7, 2001) 

Bryce Dolan v. F & E Erection Company, Docket No. CENT 97-24-DM. (Judge Feldman, 

June 11, 2001) 

ii 
COMMISSION DECISIONS 
c:. 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LOPKE QUARRIES, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 31, 2001 

Docket No. VA 99-17-M 

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners 

DECISION 

BY THE COMMISSION: 

In this civil penalty proceeding arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), the Commission granted cross 

petitions for discretionary review filed by the Secretary of Labor and Lopke Quarries, Inc. 

("Lopke") challenging a decision by Administrative Law Judge T. Todd Hodgdon. 22 FMSHRC 

899 (July 2000) (ALJ). Lopke challenges the judge's conclusions that it violated 30 C.F.R. 

§ 56.1 1001, and that the violations were significant and substantial ("S&S") and due to 

unwarrantable failure. It al~o appeals the judge's penalty assessment for its alleged violations of 

section 56.11001. The Secretary challenges the judge's determination that Lopke did not violate 

30 C.F.R. §§ 56.14100(b) and 56.1 4101(a)(2). For the following reasons, we affirm the judge's 

decision. 

I. 

Factual and Procedural Background 

Lopke operates portable rock crushing plants at various locations throughout the eastern 

United States, including the Low Moor Mine near Covington, Virginia, owned by Vulcan 

Materials. 22 FMSHRC at 899. Lopke began operating at Low Moor in November 1997 and 

increased the size of its plant in April 1998. Id. The plant consists of machines that crush rock, 

which is then transported by conveyor belts and deposited in discrete piles depending on the size 

705 
of rock. Id. Front-end loaders move the rock from the piles below the conveyor belts to the area 

where it is stored for delivery. Id. 

Joe Spitzer began working for Lopke in January 1998 as a superintendent of its Low 

Moor plant. Id. During Spitzer's tenure at Low Moor, the plant was not able to produce enough 

crushed stone to meet Lopke's expectations. Id. at 899-900. In early May 1998, Lopke sent 

superintendents Peter Lockwood and Joe McCormack to assist Spitzer in meeting production 

standards at the plant. Id. at 900. 

On May 15, 1998, superintendent Lockwood was injured on the site. Id. James E. 

Goodale, an inspector for the Department of Labor's Mine Safety and Health Administration 

("MSHA"), was sent to the mine to investigate the accident. Id. After the investigation, 

Inspector Goodale returned to the mine on May 20, 1998, to conduct a regular inspection. Id. 

Based on this inspection, he issued 14 citations or orders to Lopke. Id. The company contested 

nine of the orders and citations at a hearing before Judge Hodgdon, including the five orders and 

citations under review. Id. 

II. 

Lopke's Petition for Discretiona:ry Review 

(Citation No. 7713973 and Order Nos. 7713974 and 7713975) 

The Low Moor Mine utilized three conveyor belts, the 57's belt, the Fines Stacker belt, 

and the 8's belt. 22 FMSHRC at 900-01. The 57's belt was 45 feet long and elevated 

approximately 4 to 15 feet above ground level. Id. The Fines Stacker belt was 80 feet long and 

elevated approximately 4 to 18 feet above ground level. Gov't Ex. 5. The 8's belt was 50 feet 

long and elevated approximately 4 to 18 feet above ground level. Gov't Ex. 6. During the May 

20 inspection, superintendent Spitzer told Inspector Goodale that, in order to service the 

conveyor belts, he and other miners walked up the belts without using fall protection equipment. 

22 FMSHRC at 901._ He als·o told the inspector that the belts had to be serviced at least once a 

week. Tr. 121. The inspector issued Citation No. 7713973 and Order Nos. 7713974 and 

7713975 alleging violations of section 56.11001 as to each belt. Section 56.11001 provides: 

"Safe means of access shall be provided and maintained to all working places." 

The judge concluded that Lopke violated section 56.11001 by failing to provide safe 

access to the three conveyor belts. 22 FMSHRC at 903. In making his determination, he 

credited Spitzer's testimony that Spitzer and other miners walked up the belts to service them 

without using fall protection equipment. Id. at 902. The judge determined that the three 

violations were S&S and due to the operator's unwarrantable failure. Id. at 904-05. He assessed 

a $7,000 penalty for each violation, in part because they involved a serious level of gravity and 

were due to the operator's high negligence. Id. at 913. 

Lopke argues that it did not violate section 56.11001 because it provided a safe means of 

706 
access by making a safety harness available to miners for use when servicing the belts. L. Br. at 

5-7. It contends that the judge erred in crediting Spitzer's testimony and that substantial evidence 

does not support the judge's determination that it violated section 56.11001. Id. at 9-16. Lopke 

asserts that the judge failed in his S&S analysis to consider whether there was "a reasonable 

likelihood that the hazard contributed to will result in an injury." Id. at 22. The operator argues 

that the judge erred in his unwarrantability analysis by focusing solely on Spitzer's involvement 

as a supervisor in the violations, and by failing to consider that safe means of access were 

available to miners. Id. at 16-20. The operator further asserts that the judge erred in his penalty 

assessments because he assigned too much weight to the gravity and negligence criteria. Id. at 

23. 

The Secretary responds that the judge correctly determined that Lopke violated section 

56.1101 because it failed to ensure that a means of access to the belts was made safe. Sec'y 

Resp. Br. at 7-11, 13-16. She asserts that Lopke's argument - that the standard only requires 

operators to provide a means of safe access but does not require them to ensure that a safe means 

of access is used - is not before the Commission because it was not raised below. Id. at 13. 

The Secretary argues that the judge considered all the relevant factors in his S&S analysis and 

that his unwarrantable determination is supported by record evidence. Id. at 24, 31 & n.14. She 

further argues that the judge considered the relevant criteria in his penalty assessment, and that 

his findings are supported by the record. Id. at 34-35. 

A. Violation of Section 56.11001 

While Lopke and the Secretary focus their arguments on the meaning of the term 

"provided" in section 56.11001, they pay little attention to the standard's requirement that safe 

means of access must also be "maintained."1 We conclude that Lopke violated the standard 

because it failed to maintain safe access to the belts. 

Where the language of a regulatory provision is clear, the terms of that provision must be 

enforced as they are yv~itten ilnless the regulator clearly intended the words to have a different 

meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832 

F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); 

Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). The term "maintained" is not 

defined in the regulation. However, it is defined in Webster's Third New International 

1 We disagree with the Secretary's assertion that Lopke's argument - that the standard 

only requires an operator to make a safe means of access available but does not require it to 

ensure it is used - is not before the Commission because it was not raised below. In its posthearing brief, Lopke argued that it did not violate the standard because it made a safe means of 

access available to miners servicing the belts. L. Post-Hr' g Br. at 10-11. Thus, the judge had an 

opportunity to pass on the issue. Cf Beech Fork Processing, Inc., 14 FMSHRC 1316, 1321 

(Aug. 1992) (declining to consider "theory upon which the judge was not afforded an opportunity 

to pass."). 

707 
Dictionary 1362 (1993) as to "uphold," "keep up," "continue," or "preserve from failure or 

decline. "2 Based on this plain meaning of "maintained" in section 56.11001, we conclude that 

the standard requires an operator to uphold, keep up, continue, or preserve the safe means of 

access it has provided to a working place. The inclusion of the word "maintain" in the standard 

thus incorporates an on-going responsibility on the part of the operator to ensure that a means of 

safe access is utilized, as opposed to a purely passive approach in which an operator initially 

provides safe access and then has absolutely no further obligation.3 

We turn next to the issue of whether substantial evidence4 supports the judge's 

determination that Lopke violated the standard for Citation No. 7713973 and Order Nos. 

7713974 and 7713975. We reject Lopke's argument that the judge erred in crediting Spitzer's 

testimony that he and other miners serviced the belts by walking up them without fall protection 

equipment.5 The operator argues that the judge failed to consider evidence that Spitzer 

overestimated how frequently the belts were serviced. L. Br. at 10-13. Lopke argues that 

2 In the absence of an express regulatory definition or an indication that the drafters 

intended a technical usage, the Commission has relied on the ordinary meaning of the word 

construed. Peabody Coal Co., 18 FMSHRC 686, 690(May1996), aff'd, 111F.3d963 (D.C. Cir. 

1997) (mem). 

3 This conclusion is consistent with our analysis in a recent decision, Central Sand and 

Gravel Co., 23 FMSHRC 250 (Mar. 2001), in which the regulation at issue required that 

"[ o ]verhead high-potential powerlines shall be installed as specified by the National Electric 

Code" ("NEC"). 30 C.F.R. § 56.12045. The operator had argued that the word "installed" 

limited its obligation to comply with the NEC to the act of initially setting up power lines for use. 

23 FMSHRC at 253. We refused to adopt this interpretation, holding instead that it was logical 

to interpret the standard to require that clearances from overhead powerlines be adhered to 

beyond the time of initial installation, and noted that the National Electric Safety Code ("NESC") 

requires that applicable_ clearances be '"maintained.'" Id. at 254. We emphasized that the term 

"installed" (like the word "maintained" in the regulation at issue here) "does not designate a 

limited, initial period of time during which the NEC applies. Rather, it is short hand for the 

constant vigilance that the NESC makes clear is appropriate .... " Id. at 255. 

4 When reviewing an administrative law judge's factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh 

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938)). 

5 As the judge noted, none of the witnesses, apart from Spitzer, were at the mine before 

early May 1998, so no one but Spitzer could testify directly about what happened at the mine 

prior to that time. 22 FMSHRC at 902. 

708 
Spitzer's testimony that the belts had to be walked up at least once a week is undermined because 

the 57's belt had a grease line installed which allowed it to be greased from the ground. L. Br. at 

12. The judge noted that the 57's belt had a grease line installed, but determined that the belt 

gearbox and electric motor could not be serviced from the ground. 22 FMSHRC at 903 n.3. 

Spitzer also testified that, because grease lines often break, management required the 57's belt to 

be serviced by walking up it. Tr. 208-09. Jason Lewandrowski, the plant operator, testified that 

no one walked up the 57's belt to grease it, but on cross examination admitted that he had 

testified in his deposition that the 57's belt had to be walked up to grease it. Tr. 270, 284. In 

sum, we conclude that ample record evidence supports the judge's decision to credit Spitzer. 

Nor are we persuaded by Lopke's assertion that the judge erred in crediting Spitzer's 

testimony because he failed to consider evidence that Spitzer was biased against the operator. 

The judge considered evidence that Spitzer was unhappy with his job, that the company was 

pressing him to increase production, and that Spitzer viewed Lockwood as his replacement. 22 

FMSHRC at 902. He determined that the frustrations faced by Spitzer were common to mine 

superintendents. Id. ·The judge noted that only a month after Spitzer left his job with Lopke, the 

operator offered him a position as superintendent at another mine which he accepted. Id. The 

judge found it "hard to believe" that Spitzer would accept another position with Lopke if he felt 

animus toward the company or that the company would offer him another position if it believed 

he "had intentionally admitted to violations that did not occur." Id. The judge concluded that, 

based on "Spitzer's demeanor and manner while testifying[,] ... it did not appear that he was 

dissembling, bore a grudge against Lopke, or was testifying untruthfully." Id. at 903. The judge 

determined that Spitzer was a credible witness and gave "great weight to his testimony." Id. 

Based on the foregoing, we find that the judge thoroughly analyzed the bias claim and set 

forth ample reasons for rejecting it and crediting Spitzer. The Commission does not lightly 

overturn a judge's credibility determinations, which are entitled to great weight. In re: Contests 

of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995), aff'd on 

other grounds sub nom Sec'y of Labor v. Keystone Coal Mining Corp. 151F.3d1096 (D.C. Cir. 

1998). We find no.compelling reason to overturn the judge's decision to credit Spitzer. 

Regarding Lopke's argument that it complied with section 56.11001 because it made the 

safety harness available to miners, we hold that the standard requires something more than 

simply making a safe means of access "available." At a minimum, the standard's requirement 

that operators "maintain" safe access to working places mandates that management officials 

utilize that access, and require other miners to do so. It is clear from Spitzer's credited 

testimony, however, that Lopke failed to take any measures to ensure that miners actually used 

the safety harness. Even its own superintendent, the person in charge of safety at the plant, 

accessed the belts without using the safety harness. He also allowed other miners to access the 

belts without using the safety harness. Consequently, we conclude that substantial evidence 

supports in result the judge's determination that Lopke violated section 56.11001. Accordingly, 

we affirm the judge's determination upholding Citation No. 7713973 and Order Nos. 7713974 

and 7713975. 

709 
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), 

and refers to more serious violations. A violation is S&S if, based on the particular facts 

surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature. See Cement Div., Nat 'l Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the 

Commission further explained: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard - that is, 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 in question will be 

of a reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th 

Cir. 1995); Austin Power, Inc. v. Sec'y of Labor, 861F.2d99, 103 (5th Cir. 1988) (approving 

Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming 

continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 

1985). 

We agree with Lopke that the judge failed in his S&S analysis to apply the third Mathies 

factor concerning whether there was a reasonable likelihood that the hazard contributed to will 

result in an injury. Nevertheless, we affirm the judge's S&S determination because the record 

compels the conclusion that there existed a reasonable likelihood of an injury. The judge 

credited Spitzer's testimony that miners regularly walked up the belts without fall protection 

equipment. 22 FMSHRC at 901-02; Tr. 195-97, 199-200. It is undisputed that, when the 

inspector issued the citation and orders, the belts were not equipped with handrails or safety 

cables and that neither a man-lift nor a ladder was being used to access the heads of the belts. 22 

FMSHRC at 901. It is also uncontroverted that the belts rose to a height of 15 to 18 feet above 

the ground and that the surface of the belts could become slippery because of dust and rain. Tr. 

57, 60. Moreover, the operator did not refute the inspector's testimony that the belts swayed 

when a miner walked up them and material on the belts could cause a miner to fall. Tr. 60. 

fuspector Goodale also testified that the practice of walking up the belts without fall protection 

would be likely to result in a fatality. Tr. 56-57. Finally, the judge in his civil penalty 

assessment also determined that "[w]alking up the conveyor belts without handrails or safety 

belts was highly risky." 22 FMSHRC at 913. 

Lopke did not contest the judge's determinations on the other Mathies factors. 

Accordingly, we find that no remand is necessary and we affirm in result the judge's 

determination that the operator's violations of section 56.11001 were S&S. 

710 
C. Unwarrantable Failure 

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. 

§ 814( d), and refers to more serious conduct by an operator in connection with a violation. In 

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 

2001. Unwarrantable-failure is characterized by such conduct as "reckless disregard," 

"intentional misconduct," "indifference," or a "serious lack ofreasonable care." Id. at 2003-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) ("R&P"); see also Buck 

Creek, 52 J:<.3d at 136 (approving Commission's unwarrantable failure test). 

Whether conduct is "aggravated" in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors exist, 

such as the length of time that the violation has existed, the extent of the violative condition, 

whether the operator has been placed on notice that greater efforts are necessary for compliance, 

the operator's efforts in abating the violative condition, whether the violation is obvious or poses 

a high degree of danger, and the operator's knowledge of the existence of the violation: See 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000), appeal docketed, No. 01-1228 (4th 

Cir. Feb. 21, 2001) ("ConsoI"); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), 

rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 

34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 

14 FMSHRC 1258, 1261(Aug.1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 

(Aug. 1992); Quin/and Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts 

and circumstances of each case must be examined to determine if an actor's conduct is 

aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because 

supervisors are held to a high standard of care, another important factor supporting an 

unwarrantable failure determination is the involvement of a supervisor in the violation. REB 

Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998). 

Regarding the duration of the violations, the judge considered in his unwarrantability 

analysis that the violations lasted several weeks. 22 FMSHRC at 905. Concerning the operator's 

knowledge of the violations, he noted that management knew that miners were walking up the 

belts without fall protection and that such actions were unsafe. Id. He also considered that 

Spitzer, Lopke's superintendent in charge of the operation, was directly involved in the 

violations.6 Id. 

6 We reject Lopke's argument that the judge erred by failing to consider that Spitzer's 

behavior was "aberrational." L. Br. at 17. Several miners, not just Spitzer, walked up the belts 

without fall protection equipment. 22 FMSHRC at 905; Tr. 195-202, 205. Even if Spitzer had 

been the only miner to walk up the belts without fall protection equipment, as Lepke's 

superintendent, his actions would still constitute an aggravating factor. REB Enters., 20 

FMSHRC at 225. 

711 
In terms of abatement, the judge noted that, although management knew miners were 

using an unsafe means of access to service the belts, it did nothing to stop them. Id. He 

observed that Spitzer had suggested to higher management that handrails were needed on the 

belts (as handrails would have been an alternative means of complying with the safe access 

requirement). Id. The judge also considered that Vulcan, the company that hired Lopke to run 

the operation at the Low Moor Mine, had informed Lopke's management that handrails should 

be installed on the belts, but Lopke failed to act on that advice. Id. It is undisputed that Lopke 

did not install handrails on the belts until after the citations were issued. Id. at 901-02. 

Moreover, Lopke correctly points out that the judge did not consider whether the harness did, in 

fact, provide a safe means of access.7 In his analysis of whether the operator violated section 

56.11001, the judge merely determined that it was "questionable" whether using the safety 

harness was a safe means of access to the belts. 8 Id. at 903 n.2. Consequently, even if it had 

been properly utilized, it is unclear whether this would have constituted compliance with the 

standard. In any event, the existence of the safety harness would not have been a mitigating 

factor here because. the credited evidence establishes that generally miners did not use the harness 

and, hence, this means of access was not maintained. Tr. 50-51 , 56, 195-98.9 

Given the record evidence establishing the existence of aggravating factors, we conclude 

that substantial evidence supports the judge's finding that Lopke's conduct was unwarrantable 

and, accordingly, affirm his finding. 

7 Although Lopke also asserts (L. Br. at 5) that it provided a second safe means of access 

to the belts because the belts could be lowered to the ground for servicing, there is no evidence 

that the belts were ever lowered to service them. 

8 Lopke's superintendent Lockwood testified that the harness provided miners servicing 

the belts with safe access, but Inspector Goodale testified that it was unlikely that the harness 

provided a safe means of access. Tr. 67-69, 312. 

9 Commissioner Beatty also believes that the judge erred by failing to consider the 

obviousness or danger posed by the violations. The record indicates that the belts were tall 

structures (up to 18 feet high) located outside and in clear view of the main area of the operation. 

See photographs at L. Ex. R-5 & R-6. A miner walking up to the top of the belts without fall 

protection would have been clearly and readily visible to those working nearby at the operation. 

This evidence compels the conclusion that the violations were obvious. With respect to the 

danger factor, the inspector testified that the danger posed by walking up the belts without fall 

protection was "falling off and striking ground level and dying." Tr. 53. Spitzer testified that the 

danger posed by the violations was "falling off and somebody getting hurt or killed." Tr. 209. 

The operator did not offer any testimony that servicing the belts without fall protection was safe. 

Given the testimony of the inspector and Spitzer, the height and conditions in which the miners 

had to walk to service the tops of the belts, as well as the judge's S&S finding, Commissioner 

Beatty believes that the evidence compels the conclusion that the violations posed a considerable 

danger to the miners. 

712 
D. Civil Penalties 

Commission judges are accorded broad discretion in assessing civil' penalties under the 

Mine Act. Westmore/and Coal Co., 8 FMSHRC 491 , 492 (Apr. 1986). Such discretion is not 

unbounded, however, and must reflect proper consideration of the penalty criteria set forth in 

section 11 O(i) and the deterrent purpose of the Act. 10 Id. (citing Sellersburg Stone Co., 5 

FMSHRC 287, 290-94 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984)). The judge must make 

"[f]indings of fact on each of the statutory criteria [that] not only provide the operator with the 

required notice as to the basis upon which it is being assessed a particular penalty, but also 

provide the Commission and the courts ... with the necessary foundation upon which to base a 

determination as to whether the penalties assessed by the judge are appropriate, excessive, or 

insufficient." Sellersburg, 5 FMSHRC at 292-93. Assessments "lacking record support, infected 

by plain error, or otherwise constituting an abuse of discretion are not immune from reversal." 

U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984). 

The judge considered the six section 11 O(i) penalty criteria in his penalty assessment. 22 

FMSHRC at 913. He determined that the proposed penalties would not adversely affect Lopke's 

ability to stay in business, that its operation at the Low Moor site was a small one, and that it was 

a small- to medium-sized company. Id. He found that Lopke's history of violations was 

relatively good and that it demonstrated good faith in rapidly abating the violations after citation. 

Id. He also determined that the violations involved high negligence because walking up the belts 

without fall protection equipment was "highly risky" and that the gravity of the violations was 

serious. Id. 

Lopke's assertion that the judge erred in his penalty assessments by assigning undue 

weight to the negligence and gravity criteria is inconsistent with Commission precedent. Judges 

have discretion to assign different weight to the various factors, according to the circumstances 

of the case. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). The judge did not 

abuse his discretion by weighing Lopke's high negligence and the high gravity of its violations 

more heavily than he weighed the other penalty criteria. Accordingly, we affirm the judge's 

10 Section l lO(i) sets forth six criteria to be considered in the assessment of penalties 

under the Act: 

[ 1] the operator's history of previous violations, [2] the 

appropriateness of such penalty to the size of the business of the 

operator charged, [3] whether the operator was negligent, [4] the 

effect on the operator's ability to continue in business, [5] the 

gravity of the violation, and [ 6] the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 U.S.C. § 820(i). 

713 
penalty assessments. 

III. 

Secretary's Petition for Discretionary Review 

A. Order No. 7713976 

During the May 20 inspection, Inspector Goodale examined a safety device connected to 

the driver's seat and seatbelt on a New Holland loader. 22 FMSHRC at 906. The safety device 

was intended to prevent the driver from being struck by the loader's bucket when he exited the 

driver's cage. Id. It was supposed to lock up the hydraulics of the loader so that its lift arms 

could not be raised or lowered or the loader moved when the driver stood up. Id. It was located 

out of sight under the driver's seat. Id. 

The inspector discovered that the safety device was not functional because its wires were 

broken. Id. He testified that such a safety device was not required by MSHA's regulations and 

that there were signs posted on the arms of the driver's cage warning the driver not to get out of 

the cage without turning the loader off. Id. at 907. Nevertheless, because the safety device was 

defective, the inspector issued Order No. 7713976 to Lopke for violating section 56.14100(b), 

which provides: "Defects on any equipment, machinery, and tools that affect safety shall be 

corrected in a timely manner .... " 

The judge determined that the defect affected safety but that no one at the mine was 

aware that the loader had such a device or that it was defective. 22 FMSHRC at 906-07. He 

concluded that, to determine whether the operator failed to correct the defect in a timely manner, 

it is necessary to ascertain when the operator first knew about the defect. Id. at 907. Because the 

operator had no knowledge of the defect, the judge determined that there was no evidence to 

show that the operator failed to correct it in a timely manner. Id. Thus, the judge concluded that 

the Secretary failed to establish that Lopke violated the standard and he vacated the order. Id. 

The Secretary argues that section 56.14100(b) is not limited to situations where an 

operator knows about a defect. Sec'y PDR at 6-7. 11 She maintains that the judge's conclusion 

that the standard requires the operator to know about the defect discourages operators from being 

knowledgeable about their equipment. Id. at 7. The Secretary asserts that the judge also erred in 

concluding that the operator did not know about the existence of the safety device. Id. at 8. 

Lepke responds that, because there is no evidence of how long the defect existed, it cannot be 

determined whether Lopke failed to correct the defect in a timely manner as required by the 

standard. L. Resp. Br. at 5-6. Lopke argues that it could not have failed to repair the safety 

device in a timely manner because it did not know the defect existed. Id. at 7. 

11 The Secretary designated her petition for discretionary review as her opening brief. 

714 
Whether the operator failed to correct the defect in a timely manner depends entirely on 

when the defect occurred and when the operator knew or should have known of its existence. 12 

The safety device on the loader may have been defective for only moments before it was 

discovered by the inspector, or it may have been defective for a considerably longer period. 

Because there is no evidence in the record indicating when the device became defective, we 

agree with the judge that the Secretary failed to establish that the defect was not corrected in a 

timely manner. Accordingly, we affirm his determination that Lopke did not violate section 

56.14100(b). 

B. Order No. 7713979 

During the same inspection, Inspector Goodale tested the parking brake on a Dresser 

555b front-end loader. 22 FMSHRC at 908. He tested it by instructing the driver to let the 

loader coast down an incline of approximately 12 to 14 percent from a stop. Id. When the loader 

was traveling at approximately three to five miles an hour, he told the driver to apply the parking 

brake but to not use the foot brake. Id. The inspector determined that the loader continued to 

travel down the incline at a slower rate after the parking brake was applied. Id. He then asked 

the driver to stop the loader by applying the foot brake, which the driver did. Id. The inspector 

repeated the test a second time with the same results. Id. Spitzer testified that he knew about a 

parking brake problem on the loader for about a week or a week and a half before the inspection. 

Tr. 99-100, 218. 

The inspector issued Order No. 7713979 to the operator for violating section 

56.1410 I ( a)(2), which provides: "If equipped on self-propelled mobile equipment, parking 

brakes shall be capable of holding the equipment with its typical load on the maximum grade it 

travels." He determined that the violation was not S&S because the foot brake worked, but that 

it was due to unwarrantable failure because management, through superintendent Spitzer, knew 

about the defective brake but failed to correct it. Gov't Ex. 9; Tr. 98-100. 

The judge determined that, instead of testing whether the loader's parking brake would 

"hold" the stationary loader on an incline as required under section 56.1410l{a)(2), the inspector 

inappropriately tested whether the brake would "stop" the already moving loader on an incline. 

22 FMSHRC at 908. He vacated the order against Lopke because the Secretary failed to 

establish that the parking brake would not hold the loader on an incline. Id. at 909. 

The Secretary argues that the plain language of the standard does not require testing to 

show a violation. Sec'y PDR at 9. She asserts that, even ifthe inspector did not test the parking 

brake properly, management's admission that the parking brake was defective was sufficient to 

12 Lest an operator be tempted to remain ignorant of defective conditions, we note that 

Lopke was also cited for failing to inspect the loader before putting it into operation. 22 

FMSHRC at 907. 

715 
support a finding that Lopke violated the standard. Id. at 9-12. Lopke responds that the judge 

properly determined that it did not violate section 56.14101 ( a)(2) because the .Secretary failed to 

establish that the parking brake could not hold the loader on an incline. L. Resp. Br. at 15. 

Lopke asserts that, even if management knew beforehand that the parking brake needed 

"adjustment," this does not prove that it could not hold the loader on an incline. Id. at 16. 

We reject the Secretary's argument that, regardless of the way the inspector tested the 

parking brake, 13 Lopke ¥iolated the standard because management knew beforehand that the 

parking brake was malfunctioning. The Secretary points out that superintendent Spitzer testified 

that he knew the parking brake was a problem a week to a week and a half before the inspection. 

In reference to the parking brake, Spitzer testified that "[ s ]ometimes it would work, sometimes it 

wouldn't. ... Sometimes it would hold partially, sometimes it wouldn't. I don't believe it ever 

completely let loose and wouldn't hold at all." Tr. 218-19. The Secretary also cites to 

superintendent Lockwood's testimony to support her argument. He testified that two days before 

the inspection the parking brake required adjustments and that it was adjusted and cleaned before 

the inspection. Tr. 320-21. When asked if it worked after the adjustment "for some period of 

time," Lockwood testified that "[s]ometimes it did, sometimes it didn't." Tr. 321. 

The testimony of Spitzer and Lockwood is simply unclear on the degree to which the 

parking brake was not functioning. For example, it is not clear from Lockwood's answer 

whether the parking brake worked but needed further minor adjustments or whether it sometimes 

did not work at all. It is also not clear from his testimony whether the subsequent problems with 

the parking brake after it was adjusted occurred before or after the inspection because Lockwood 

also testified that Lopke had problems with the parking brake after the inspection. Tr. 322. 

Certainly, neither Spitzer nor Lockwood testified that the parking brake would have failed to 

hold the loader "with its typical load on the maximum grade it travel[ed]." See 30 C.F.R. 

§ 56.1410l(a)(2). Accordingly, we conclude that substantial evidence supports the judge's 

finding that the Secretary did not prove the violation, and we affirm his decision to vacate the 

order. 

13 On review, the Secretary does not claim that the inspector's test showed that the 

parking brake violated the standard. 

716 
N. 

Conclusion 

For the foregoing reasons, with respect to Citation No. 7713973 and Order Nos. 7713974 

and 7713975, we affirm the judge's decision that Lopke violated section 56.11001 and that the 

violations were S&S and unwarrantable. We also affirm the judge's penalty assessments for 

these violations. In addition, we affirm the judge's decision vacating Order Nos. 7713976 and 

7713979 on the ground that the Secretary did not prove that Lopke violated sections 56.14100(b) 

or 56.1410l(a)(2), respectively. 

Theodore F. Verheggen, C 

. 

Robert H. Beatty, Jr., Commissioner 

717 
Distribution 

Jack Powasnik, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

One Oxford Centre 

301 Grant St., 201

h Floor 

Pittsburgh, PA 15219-1410 

Administrative Law Judge T. Todd Hodgdon 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

718 
ADI\flNISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

TABLE ROCK ASPHALT 

CONSTRUCTION, CO., INC., 

Respondent 

July 9, 2001 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2000-268-M 

A.C. No. 23-01892-05543 

Docket No. CENT 2000-387-M 

A.C. No. 23-01892-05544 

Docket No. CENT 2001-2-M 

A.C. No. 23-01892-05545 

Table Rock Quarry #3 

Docket No. CENT 2000-306-M 

A.C. No. 23-01836-05568 

Table Rock Quarry #1 

DECISION 

Appearances: Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department 

of Labor, Denver, Colorado, for the Petitioner; 

Before: 

Bradley S. Hiles, Esq., R. Lance Witcher, Esq., Blackwell Sanders 

Peper Martin, LLP, St. Louis, Missouri, for the Respondent. 

Judge Feldman 

These proceedings concern petitions for assessment of civil penalties filed pursuant to 

section 1 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, Table Rock Asphalt 

Construction Company, Inc. (Table Rock). The petitions sought to impose a total civil penalty of 

$2,055.00 for eleven alleged violations of the mandatory safety standards in 30 C.F.R. Part 57 of 

the Secretary's regulations governing underground mines. One of the cited S&S violations was 

attributed to Table Rock's alleged unwarrantable failure, six additional alleged violations were 

also designated as significant and substantial (S&S) in nature, and the remaining four cited 

conditions were characterized as non-S&S. These matters were heard from April 24 through 

April 26, 2001, in Branson, Missouri. The parties have filed thorough Proposed Findings of Fact 

and Conclusions of Law that have been considered in the disposition of these matters. 

719 
During the course of the hearing, the parties reached a settlement agreement with respect 

to Citation No. 7891486 in Docket No. CENT 2001-2-M wherein the citation was modified to 

delete the S&S designation. Consequently, Table Rock agreed to pay a reduced civil penalty of 

$55.00 rather than the $161.00 penalty initially proposed by the Secretary. (Tr. 97-98). The 

parties' settlement agreement was approved on the record. (Tr. 98). In addition, the Secretary 

moved to vacate non-S&S Citation No. 7891420 and S&S Citation No. 7891424 in Docket 

No. CENT 2000-268-M, and S&S 104(d)(l) Citation No. 7891409 alleging Table Rock's 

unwarrantable failure in Docket No. CENT 2000-387-M. (Tr. 303, 334). The Secretary's 

motion to vacate was also granted on the record. (Tr. 305, 335). 

Thus, four alleged violative conditions designated as S&S and three alleged non-S&S 

violations remain in dispute. The Secretary seeks to impose a total civil penalty of $795.00 for 

these remaining seven citations. 

I. Pertinent Case Law and Penalty Criteria 

This decision applies the Commission's standards with respect to what constitutes a 

significant and substantial (S&S) violation. A violation is properly designated as S&S in 

nature if, based on the particular facts surrounding that violation, there exists a reasonable 

likelihood that the hazard contributed to by the violation will result in an injury or an illness 

of a reasonably serious nature. Cement Division, National Gypsum, 3 FMSHRC 822, 825 

(April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission explained: 

In order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: 

( 1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard -- that is, a measure of danger to safety -- contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to [by the violation] will 

result in an injury; and ( 4) a reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 6 FMSHRC at 3-4. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th Cir. 1988), ajfg 9 FMSHRC 

2015, 2021 (December 1987) (approving Mathies criteria). 

In United States Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 {August 1985), the 

Commission explained its Mathies criteria as follows: 

We have explained further that the third element of the Mathies formula 'requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury.' U.S. Steel Mining Co., Inc., 6 

FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104( d)( 1 ), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. U.S. Steel 

Mining Company Co., Inc., 6 FMSHRC 1866, 1868 (August 1984). (Emphasis in 

original). 

720 
The Commission subsequently reasserted its prior determinations that as part of any 

"S&S" finding, the Secretary must prove the reasonable likelihood of an injury occurring as a 

result of the hazard contributed to by the cited violative condition or practice. Peabody Coal 

Company, 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 

(April 1996). 

With respect to the imposition of penalties, this decision applies the statutory civil penalty 

criteria in section 1 lO(i) of the Act, 30 U.S.C. § 820(i), to determine the appropriate civil penalty 

to be assessed. In this regard, section 11 O(i) provides, in pertinent part: 

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. 

Applying the statutoiy penalty criteria, Table Rock is a small mine operator that is subject 

to the jurisdiction of the Mine Act. Table Rock has a good compliance history in that the 

majority of violative conditions cited during the two year period preceding the issuance of the 

citations in issue were designated as non-S&S violations. It is not contended that the $2,055.00 

civil penalty initially proposed by the Secretary will negatively impact Table Rock's ability to 

continue in business. Finally, Table Rock abated the cited conditions in a timely manner. 

II. Findings and Conclusions 

Table Rock operates two underground limestone facilities known as the Table Rock 

Quarry #1 located in Branson, Missouri, and the Table Rock Quarry #3 located in Kimberling, 

Missouri. Both quarries are considered small operations in that Table Rock employs less than 

ten employees at each location. Quarry operations are conducted on a single shift basis, each 

shift operating five days per week. Each mine uses a room and pillar mining method in which 

limestone is drilled and blasted in underground operations. The product is then brought to the 

surface by haul trucks where the material is crushed, sized and stockpiled for sale to customers. 

As underground mine facilities, each quarry is inspected by the Mine Safety and Health 

Administration (MSHA) four times per year. 

Six of the outstanding citations in these proceedings were issued by MSHA Inspector 

Robert Capps as a consequence of inspections conducted in March and June 2000 Table Rock's 

#3 quarry. The remaining citation for disposition was issued by MSHA Inspector Jerry Hoskins 

at Table Rock's #1 quarry in April 2000. At the time these citations were issued, both inspectors 

were assigned to MSHA's Little Rock, Arkansas Field Office. 

721 
a. Citation Nos. 7891421 and 7891422 (Berms) 

(Pocket No. CENT 2000-268-M) 

Capps arrived at Table Rock's #3 quarry on the morning of March 1, 2000, whereupon 

Capps conducted a pre-inspection conference with foreman Wyndell Carey. Capps proceeded on 

foot to inspect the underground operation where active mining was occurring. Capps was 

accompanied underground at various times by Carey, Jim David, who is Table Rock's assistant 

operations manager and safety director, and laborer Terry Bayliff. 

Section 57.9300(b), 30 C.F.R. § 57.9300(b), requires, in pertinent part, where a risk of 

overturn exists, berms on haul roads" ... shall be at least mid-axle height of the largest [vehicle] 

that usually travels the roadway (emphasis added)." As a preliminary matter, we must address the 

minimum mid-axle height required under the cited regulatory standard. Capps testified that haul 

trucks were the largest vehicle and the "primary vehicle" that "usually traveled" the haul roads. 

(Tr. 526, 566-67, 569, 580). In fact, Citation No. 7891421, one of the subject berm citations 

issued by Capps, notes that safe use of haul trucks are the focus of concern. (Gov. Ex. 14). The 

mid-axle height of Table Rock's haulage trucks is 18 inches. (Tr. 497, 580). 

At the hearing, the Secretary suggested larger graders that occasionally are used to 

maintain the haul road, that have mid-axle heights of 24 to 30 inches, should govern the 

minimum berm height required by section 57.9300(b). (Tr. 480-81). The Secretary's attempt to 

raise the berm bar is contrary to well established law that, where a regulatory provision is clear, 

the terms of the provision must be enforced as they are written unless the regulator clearly 

intended the words to have a different meaning, or, unless such meaning would lead to an absurd 

result. Rawl Sales & Processing Co., 23 FMSHRC 463, 466 (May 2001) (citations omitted). 

The plain meaning of the term "usually travels" in section 57.9300(b) dictates that the minimum 

berm height required by the standard. In this case the largest vehicle usually traveling the haul 

road is a haulage truck. Thus, the 18 inch mid-axle height of the haulage trucks governs the 

minimum berm height required by the safety standard. 

After inspecting the underground areas, Capps, traveled the haul road alone in his own 

vehicle to inspect Table Rock's stockpiles. Capps noted the berm along the haul road was in 

"excellent shape" measuring" ... [b]etween 36 to 48 inches. Three to four feet." (Tr-. 473, 498, 

586). Upon returning from the stockpiles in his vehicle via the haul road, Capps noted an area on 

the left side approximately halfway up the mine exit roadway from the explosives magazines 

that was approximately 50 feet in length that was not provided with a berm of mid-axle height. 

Capps reportedly observed that part of the inadequate 50 feet berm area was approximately 

10 inches in height and part of the area had no berm at all. 

Capps testimony regarding whether he got out of his car and took actual measurements of 

the subject berm area was equivocal. (Tr. 503-04). Capps testified that, "I must have gotten out 

of my car and measured the height because I [was] specific [in the citation] about ten inches." 

(Tr. 503). Capps later testified that "[he] walked right up on [the berm]." (Tr. 516). At another 

722 
point in his testimony, Capps stated, "I didn't measure [the distance that was not adequately 

bermed], but I estimated it to be 50 feet in length." (Tr. 474). Significantly, Capps admitted he 

did not get out of his vehicle when he "eyeballed" the other 25 feet of allegedly inadequate berm 

he also cited that is discussed below. (Tr. 558). Capps did not take any photographs of the cited 

berm conditions. (Tr. 558). Since the berm area in issue was on the right side of Capps' car, if 

Capps had not left his vehicle, Capps would have had to look through the windshield and 

passenger window to observe the area from his vehicle. (Tr. 515-16). 

As Capps continued driving the haul road from the stockpiles, Capps noted "a partial 

berm ... not sufficient height to protect the operators of vehicles ... "that was approximately 

25 feet in length located at the final down hill section of the mine entrance elevated roadway. 

(Gov. Ex 15). Capps testified that he "eyeballed" the condition from his vehicle. (Tr. 558). 

He did not stop to take measurements of the height or length of the subject berm condition. 

(Tr. 515-16). 

At approximately at 11 :00 a.m., after traveling the haul road, Capps returned to talk to 

Carey and David. Capps told Carey there were two areas of berm that needed to be "brushed 

up." (Tr. 622-23). Capps told Carey the areas were located "halfway up the big hill on the right 

and at the bottom of the hill right where it turns and goes up." (Tr. 623). Capps also informed 

David that "a couple of berms needed freshened (sic) up." (Tr. 585). Both Carey and David 

concluded that Capps was not going to issue citations for the two berm areas discussed by Capps. 

Capps told Carey and David that he would complete his inspection of other mine areas and meet 

Carey and David at 1 :00 p.m. for a close-out conference. 

At the 1 :00 p.m. meeting, Capps did not issue any citations or mention any violations. 

Capps testified that he "assumed" Carey and David understood the berm conditions were 

violations although he did not explicitly tell them they were violations, or, that he intended to 

issue citations. (Tr. 665-66). 

After Capps left the mine on the afternoon of March 1, 2000, David drove up the haul 

road to observe the areas noted by Capps. David determined the berms were between 36 and 48 

inches with the exception of the two areas that were between 20 and 24 inches. David explained 

that when you have 20 to 24 inches next to a four foot berm it may look deceivingly low. (Tr. 

587-88). David testified he would have taken photographs and measured the berms ifhe knew 

Capps intended to cite the conditions as violations. (Tr. 589). Upon returning from the haul 

road, David instructed Carey to add material to the subject areas. Carey used a front-end loader 

to add material to two areas of the berms. Carey estimated these low areas were approximately 

18 to 20 inches high. (Tr. 625-26). Bayliff also testified he did not observe any unusually low 

berm areas during his several trips on the haul road on March 1, 2000. (Tr. 654-56). 

Capps returned to his hotel and wrote Citation Nos. 7891421 and 7891422 on the evening 

of March 1, 2000, citing alleged S&S violations of section 57 .9300(b) of the mandatory safety 

standards for inadequate berms at the two locations discussed above. (Gov. Exs. 14, 15). Capps 

723 
returned to Table Rock's #3 quarry the following morning on March 2, 2000, whereupon Capps 

served the citations on Carey. Carey testified he was surprised to receive the citations because he 

thought Capps had determined that there bad been a "clean inspection." (Tr. 634). 

As a threshold matter, I note the Secretary has the burden of proving, by a preponderance 

of the evidence, that a violation of the cited mandatory safety standard has occurred. Southern 

Ohio Coal Co., 14 FMSHRC 1781, 1785 (November 1992) (citations omitted). Viewing the 

testimony most favorably for the Secretary, at best, it is clear that Capps does not remember 

whether or not he took actual height measurements of the approximate 50 foot area of the berm 

cited in Citation No. 7891421. Applying the preponderance evidentiary standard, Capps' failure 

to recall casts doubt on the reliability of his testimony. Without Capps' representation that he 

measured the berm, the Secretary cannot establish that the berm was 10 inches in height or less. 

In this regard, absent actual measurements, I credit David's testimony that Capps may be 

mistaken because an 18 inch high berm area may look lower than it actually is when compared to 

adjacent 48 inch berm areas. Moreover, absent clear evidence of objective measurements, the 

Secretary has failed to rebut the testimony of David and Carey that the cited berm areas were at 

least 18 inches high. Accordingly, Citation No. 7891421 shall be vacated. 

With respect to the 25 foot berm area cited in Citation No. 7891422, Capps admitted he 

did not measure this area and that he only observed this area from his vehicle. Consequently, 

consistent with the above discussion, Citation No. 7891422 shall also be vacated. 

Having vacated these berm citations, I note, parenthetically, that it is regrettable that 

Capps did not clearly inform Table Rock of the alleged violative berm conditions during his 

March 1, 2000, inspection. Had he done so, if Table Rock had contested the alleged violative 

conditions, actual measurements and photographs undoubtedly would have been taken. 

b. Citation No. 7891423 (Serviceable Fire Extinguishers) 

(Docket No. CENT 2000-268-M) 

As a result of his March 1, 2000, inspection of the underground areas of Table Rock's 

#3 quarry, Capps also J.ssued Citation No. 7891423 for a significant and substantial violation of 

the mandatory safety ·standard in section 57.4200(b)(2), 30 C.F.R. § 57.4200(b)(2). The citation 

was issued because Table Rock "failed to provide a serviceable fire extinguisher at the ANFO 

blasting agent storage trailer located in the mined out underground area." (Gov. E.x. 16). It is 

undisputed that, although fire extinguishers were kept on the powder truck that was used to 

transport ANFO blasting material from the storage trailer to active mine areas, the nearest 

stationary fire extinguisher to the Ammonia Nitrate Fuel Oil (ANFO) blasting agent trailer 

was located approximately 200 feet away at the underground maintenance shop. Section 

57.4200(b)(2) provides that on-site fire fighting equipment shall be "strategically located" and 

"readily accessible" although these terms are not defined in the Secretary's regulations. 

724 
In defending against the citation, Table Rock argues that the ANFO trailer is normally not 

accessed on foot. Rather, it is normally used by the blaster and his helper when they are loading 

ANFO from the trailer into the powder truck for transport to active areas of the mine. The 

powder truck is equipped with four fire extinguishers. In apparent recognition that the closest 

fire extinguisher to the ANFO trailer located 200 feet away does not satisfy the cited safety 

standard, Table Rock asserts the mobile fire extinguishers located on the powder truck constitute 

strategically located and readily accessible fire fighting equipment satisfying the standard. 

The presence of mobile fire extinguishers may be a mitigating factor material to the 

reasonable likelihood of injury issue central to the S&S question. However, with respect 

to the fact of the violation, mobile fire extinguishers cannot satisfy the provisions of 

section 57.4200(b)(2) in circumstances, however infrequent, when individuals are in or around 

the blasting trailer when the powder truck is not present. In this regard, I do not find convincing 

Table Rock's contention that it intentionally does not provide fire extinguishers in close 

proximity to the blasting trailer in order to encourage personnel to evacuate rather than fight a 

fire in the vicinity of the trailer. Such a policy ignores the safety of maintenance shop personnel 

who may continue to go about their duties 200 feet away from the trailer while persons at the 

trailer high-tail-it out of the mine because they do not have the option of extinguishing a 

potentially explosive fire in its early stages. Accordingly, the Secretary's interpretation and 

application of the "strategically located" and "readily accessible" terms in section 57.4200(b)(2) 

to require fire extinguishers in the immediate vicinity of the blasting trailer are reasonable. 

Consequently, the undisputed facts support the conclusion that a violation of section 

57.4200(b)(2) has occurred. 

Turning to the significant and substantial issue, applying the Mathies criteria, it is 

apparent that the cited violation, i.e., the failure to provide readily accessible stationary fire 

extinguishers, contributes to the discrete safety hazard of an inability to extinguish a fire. It is 

also obvious, given the ANFO trailer as the site of the potential hazard, that if a fire were to 

occur, serious, if not fatal injuries, will occur. 

However, an S&S finding also requires a finding that it is reasonably likely that the 

hazard contributed to will result in an event, i.e., a fire and explosion, in which there is a serious 

injury. US. Steel, 6 FMSHRC at 1836. The Secretary has failed to demonstrate ignition sources 

in the vicinity of the ANFO trailer that is located in an inactive area of the mii:ie. Moreover, the 

presence of fire extinguishers on the powder truck is an additional factor that mitigates the 

likelihood of fire. Consequently, the Secretary has failed to demonstrate that serious injury was 

reasonably likely to occur. 

Accordingly, Citation No. 7891423 shall be modified to delete the significant and 

substantial designation. In addition, given Table Rock's reasonable reliance on the mobile fire 

extinguishers that are normally present when the ANFO trailer is accessed, the degree of 

negligence attributable to Table Rock shall be reduced from moderate to low. 

725 
As previously noted, applying the statutory penalty criteria, Table Rock is a small mine 

operator without an extraordinary violation history. Table Rock abated the violation in a timely 

manner and the $184.00 initially proposed by the Secretary for Citation No. 7891423 will not 

impair its ability to continue in business. Given the reduction in Table Rock's degree of 

negligence and the reduction in the gravity of the cited non-S&S violation, a civil penalty of 

$55.00 shall be imposed for Citation No. 7891423. 

c. Citation No. 7893052 (Magazine Ground Strap) 

(Docket No. CENT 2000-306-M) 

MSHA Inspector Jerry Hoskins conducted a routine inspection of Table Rock's 

Quarry #1 on April 11 and April 12, 2000. On April 12, 2000, Hoskins issued Citation 

No. 7893052 alleging a significant and substantial violation of section 57.6132(b), 30 C.F.R. 

§ 57.6132(b). This mandatory safety standard requires that" ... [m]etal magazines shall be 

equipped with electrical bonding connections between all conductive portions so the entire 

structure is at the same electrical potential .... " (Gov. Ex. 22). Citation No. 7893052 was 

issued after Hoskins observed a broken grounding strap on the door of the steel magazine 

housing detonator explosives, causing the door to be at different electrical potential than the 

magazine. The Secretary proffered a photograph of the broken grounding strap observed by 

Hoskins to support the alleged section 57.6132(b) violation. (Gov. Ex 23). Hoskins 

characterized the cited violation as significant and substantial because he believed the differing 

electrical potential caused by the broken strap could cause sparks when the magazine door was 

opened risking a possibility of ignition and explosion. 

In its defense, Table Rock contends the citation should be vacated because Hoskins did 

not test the electrical potential with an Ohmmeter to verify the alleged differing electrical 

potential. In this regard, Table Rock speculates that the two four inch steel hinges that joined the 

magazine structure with its door was an alternative to the grounding strap that was an equally 

effective method of electrical bonding to ensure that equal electrical potential was maintained to 

prevent a source of ignition. 

I am not persuaded by Table Rock's conjecture that the steel hinges provided adequate 

and effective electrical bonding. Such a theory is belied by the magazine manufacturer's design 

of a heavy duty grounding strap welded into the body of the magazine structure. (See photo in 

Gov. Ex. 23). Hoskins failure to take Ohmmeter readings does not constitute a flawed citation. If 

a grounding strap on a steel structure is severed, and no alternative methods of grounding have 

been installed to address the defective strap, it is reasonable to conclude, without further 

electrical testing, that the structure is not properly grounded. Consequently, the evidence 

supports the fact of occurrence of the cited violation in Citation No. 7893052. 

726 
With respect to the issue of S&S, Hoskins testified that sparks (heat) occurring as the 

magazine door was opened created by the unequal electrical potential could ignite the 

detonators. However, David testified, without contradiction, that the detonators stored in the 

cited magazine were electrical detonators requiring electricity to pass through the detonators 

completing a circuit. (tr. 769-72). In accordance with the shunting provisions in section 

57.6401(a), 30 C.F.R. § 57.6401(a), the electric detonators were kept shunted until they were 

connected to an electrical blasting line. A shunt is a plastic fitting placed on the ends of the 

two detonating wires of each detonator to ensure that the wires remain separated and that 

they can not be activated. Hoskins could not recall whether the subject detonators were shunted. 

(Tr. 758). 

Addressing the significant and substantial issue, applying the Mathies criteria, it is 

apparent that the cited violation, i.e., the defective guarding strap creating the potential for 

disparate electrical potential, contributes to the discrete safety hazard of a magazine explosion. 

In such event, it is reasonably likely that serious injury will occur. 

However, as previously discussed, an S&S finding also requires a finding that it is 

reasonably likely that the hazard contributed to will result in an event, i.e., an explosion, in which 

there is a serious injury. The Secretary does not assert that explosives other than electric 

detonating caps were, or will be, stored in the subject magazine. Given the unrebutted testimony 

that the subject detonators were electrical and shunted, the Secretary's assertion that it is 

reasonably likely that a potential heat generating spark caused by unequal electrical potential will 

cause an explosion is unpersuasive. Significantly, the Secretary has not shown that heat caused 

by a spark poses a risk of igniting electrical detonators. The fact that the detonators are shunted 

makes such heat related ignition even more remote. Although the transmission of electricity 

from lightening striking the ungrounded metal structure may provide a significant source 

ignition, it can not be said that it is reasonably likely that lightening will strike the cited 

magazine. Given the remoteness of lightening striking, and the absence of evidence of any other 

significant sources of ignition, Citation No. 7893052 shall be modified to delete the 

significant and substantial designation. 

Hoskins attributed this grounding violation to a moderate degree of negligence. The 

defect in the grounding strap prominently located on the front of an explosives magazine was 

readily apparent and should not have been ignored. Reliance on the door hinges as a means of 

grounding, as Table Rock appears to suggest, accentuates rather than mitigates its negligence. 

While grounding is an important safety precaution on any piece of equipment, its importance on 

an explosives magazine is self evident. Accordingly, in addition to deleting the S&S designation 

in Citation No. 7893052, the citation shall be modified to reflect the cited violation was 

attributable to a high degree of negligence. I have previously discussed the statutory penalty 

criteria as it applies to Table Rock. Given the increase in the degree of Table Rock's negligence, 

a civil penalty of $100.00 shall be imposed for Citation No. 7893052. 

727 
d. Citation Nos. 7891488. 7891489 and 7891490 (Return Roller Guarding) 

(Docket No. CENT 2001-2-M) 

On June 19, 2000, Capps returned to Table Rock's #3 quarry to conduct another routine 

inspection. On the following day Capps issued Citation Nos. 7891488, 7891489 and 7891490 

citing non-significant and substantial violations of the mandatory safety standard in section 

57 .14109, 30 C.F .R. § 57 .14109. The cited conditions concerned three unguarded return rollers 

(idlers) on two different conveyors located in an area of the mine that was not frequently 

traveled. Specifically, Citation No. 7891488 cited a return roller under the jaw crusher that was 

located under the conveyor belt, 37 inches from the ground and five inches in from the outer 

perimeter of the conveyor's frame. The other two return rollers cited in Citation Nos. 7891489 

and 7891490 were located under the impactor conveyor belts, 37 inches and 34 inches from the 

ground, respectively. Both impactor return rollers were located four inches from the outside of 

the conveyor frames. Section 57 .14109, the mandatory safety standard initially cited, provides, 

in pertinent part, that "unguarded conveyors next to travelways" shall be equipped with railings 

to prevent persons from falling on or against the conveyor (emphasis added). 

Citation Nos. 7891488, 7891489 and 7891490 were modified on December 12, 2000, 

to reflect the mandatory safety standard violated was section 57.14107(a), 30 C.F.R. 

§ 57.14107(a), rather than section 57.14109. Capps testified that the citations were modified 

because the areas immediately surrounding the cited conveyor systems were not "travelways" 

as defined by the regulations. 1 (Tr. 134-35, 156). In fact, as previously noted, the subject areas 

are traveled infrequently. 

Section 57.14107, the revised safety standard cited, provides: 

(a) moving parts shall be guarded to protect persons from 

contacting gears, sprockets, chains, drive, head, tail, and takeup 

pulleys, flywheels, coupling, shafts, fan blades; and similar moving 

parts that can cause injury. 

(b) Guards shall not be required where the exposed moving parts 

are at least seven feet away from walking or working surfaces. 

(Emphasis added). 

1 Section 57.2, 30 C.F.R. § 57.2, defines "travelway" as" ... a walk or way regularly 

used and designated for persons to go from one place to another." 

728 
Before addressing the validity of the subject guarding citations, it is instructive to 

examine the Commission's decision in Thomas Brothers Coal Company, 6 FMSHRC 2094 

(September 1984) that addressed the purpose of section 77.400(a), a similar mandatory 

guarding standard governing coal mining. The Commission stated: 

We find the most logical construction of the standard is that it 

imports the concepts of reasonable possibility of contact and 

injury, including contact stemming from inadvertent stumbling or 

falling, momentary inattention or ordinary carelessness. Applying 

this test requires taking into consideration all relevant exposure 

and injury variables. For example, accessibility of the machine 

parts, work areas, ingress and egress, work duties, and as noted, the 

vagaries of human conduct. Under this approach, citations for 

inadequate guarding will be resolved on a case-by-case basis. 

6 FMSHRC at 2097 {emphasis added). 

Thus, as a general proposition, stumbling and inadvertent contact are the concerns that the 

guarding standard addresses. That is why 57.14107(b) exempts "moving parts [that] are at least 

seven feet away from walking or working surfaces," although such areas may be accessed by 

ladders. The standard is not intended to require moving parts to be guarded in order to prevent 

contact by personnel who may climb up to inaccessible areas, or, intentionally crawl, 

or reach, under inaccessible areas near ground level to perform maintenance. Under such 

circumstances, section 57 .14105, 30 C.F.R. § 57 .14105, requires maintenance of equipment to be 

performed only after the power is turned off and the equipment is blocked against motion. 

Moreover, guarding such inaccessible areas may require removing the guard to accomplish 

cleaning. 

Turning to the facts of this case, Secretary's purported reliance on the inadvertent contact 

hazard caused by a trip and fall as the basis for applying the guarding standard is undermined by 

Capps' testimony. ~capps conceded that moving parts can be functionally guarded solely by 

location if the moving part was covered by a belt and near ground level. (Tr. 112). Capps further 

admitted that the possibility of inadvertent contact with the cited rollers as a consequence of 

stumbling was "unlikely"" ... partially because of the height and because of the fact of the 

location that [the rollers are] in, because it's normally a low-traffic area." (Tr. 11 3). 

The remoteness of inadvertent exposure to the cited rollers is further demonstrated by 

Capps' testimony concerning the hazards created by contact with moving conveyors. Capps 

testified that there are pins in a conveyor belt's coupling system that could catch onto the 

clothing of an individual walking next to a conveyor belt. In such an event, the individual could 

become entangled in the moving belt and sustain serious injury. However, Capps conceded the 

protections contemplated by the provisions of section 57 .14109, that require railings to prevent 

729 
persons from falling on or against a conveyor, do not apply to the cited conveyors because the 

possibility of contact is remote because the cited areas are not where people normally travel. 

(Tr. 157-58). Capps further admitted that inadvertent contact with the cited rollers, located 

34 to 37 inches from the ground and covered by the conveyors, is even more remote than 

inadvertent contact with the belt. (Tr. 296-99). 

Rather, it is clear that the Secretary's primary basis for seeking to apply section 

57.14107(a) is the alleged hazard posed to clean-up personnel. In this regard Capps testified 

about people who could be drawn into the rollers while cleaning spillage around the cited rollers 

with shovels. (Tr. 115, 174). However, Capps stated he never observed any employees cleaning 

the cited areas with shovels, and he did not know if the roller areas were cleaned with shovels. 

(Tr. 136, 174, 177-78). Table Rock maintains that spillage in the vicinity of the cited areas is 

removed by using a scoop attached to a bobcat vehicle. The operator of the bobcat sits in a steel 

caged operator's cabin and is not exposed to the return rollers. (Tr. 207, 225, 228, 281-82, 286, 

287). 

The Secretary's concern for the safety of clean-up personnel as a basis for imposing the 

guarding requirements of section 57.14107( a) assumes that the subject areas under the conveyor 

will be cleaned manually without de-energizing the belt as required by section 57.14105. Such 

an assumption is a not an adequate basis for application of section 57.14107(a) in the current 

case. 

While almost anything is possible, regardless of how remote, application of the guarding 

standard in this case is tantamount to requiring all moving parts, regardless of their lack of 

accessibility and their location in untraveled areas of the mine, to be guarded. If the Secretary 

wishes to pursue such a regulatory approach, she should do so through the notice and comment 

rulemaking process. However, "the plain language of the regulatory standard currently only 

requires guarding of moving parts that, through inadvertence, "can cause injury." Here, the 

Secretary has failed to demonstrate that there is a reasonable possibility of inadvertent contact. 

Thomas Brothers, 6 FMSHRC at 2097. This conclusion is consistent with the Secretary's 

characterization of the alleged violations as not reasonably likely to cause injury (non S&S). 

While designating these alleged violations as non-S&S is not fatal to the Secretary's case, 

nevertheless, it is an implicit recognition of the degree of remoteness of the possibility of injury. 

Finally, Table Rock had partially guarded the cited rollers with chain link material that 

hung approximately 18 inches from the conveyor frame, leaving approximately 18 "inches of 

clearance from the ground. This 18 inch clearance allowed the bobcat scoop to clean under the 

cited conveyors. This chain link material further protected individuals from inadvertent contact. 

The Secretary suggests this partial guarding is an admission by Table Rock that guarding was 

required. (Tr. 122). Just as the Secretary is not estopped from citing the alleged violative 

conditions in these matters because they had not been cited by MSHA inspectors during prior 

inspections, so too, Table Rock is not estopped from denying liability because, in an abundance 

of caution, it elected to install partial guarding. King Knob Coal Co., 3 FMSHRC 1417, 1421 

(June 1981); accord Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416-17 (lO'h 

Cir. 1984). Accordingly, Citation Nos. 7891488, 7891489 and 7891490 shall be vacated. 

730 
ORDER 

1. In view of the above, IT IS ORDERED THAT Citation Nos. 7891421, 7891422, 

7891488, 7891489 AND 7891490 ARE VACATED. 

2. IT IS FURTHER ORDERED THAT Citation Nos. 7891423 and 7893052 

ARE MODIFIED to delete the significant and substantial (S&S) designation. In addition, 

Citation No. 7891421 IS MODIFIED to reflect the cited violation is attributable to the 

respondent's low degree of negligence, and, Citation No. 7893052 IS MODIFIED to reflect 

the cited violation is attributable to the respondent's high degree of negligence. 

3. IT IS FURTHER ORDERED THAT Table Rock Asphalt Construction Company, 

Inc., pay a civil penalty of$155.00.00 in satisfaction of Citation Nos. 7891423 and 7893052. 

4. IT IS FURTHER ORDERED THAT, pursuant to the parties' agreement, 

Citation No. 7891486 IS MODIFIED to delete the significant and substantial (S&S) 

designation, and that Table Rock Asphalt Construction Company, Inc., pay a civil penalty 

of$55.00.00 in satisfaction of Citation No. 7891486. 

5. IT IS FURTHER ORDERED THAT, consistent with the parties' agreement, 

Citation Nos. 7891420, 7891424 and 7891409 ARE VACATED. 

6. ACCORDINGLY, IT IS FURTHER ORDERED THAT Table Rock Asphalt 

Construction Company, Inc., shall pay a total civil penalty of$210.00 within 45 days 

of the date of this decision. Upon timely receipt of payment, the civil penalty proceedings 

in Docket Nos. CENT 2000-268-M, CENT 2000-306-M, CENT 2000-387-M and 

CENT 2001-2-M ARE DISMISSED. 

Administrative Law Judge 

Distribution: 

Jennifer Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202-5716 (Certified Mail) 

Bradley S. Hiles, Esq., R. Lance Witcher, Esq., Blackwell Sanders Peper Martin, LLP, 

720 Olive Street, Suite 2400, St. Louis, MO 63101 (Certified Mail) 

/hs 

731 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577 /FAX 303-844-5268 

DYNATEC MINING CORPORATION, 

Contestant 

v. 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Before: Judge Manning 

July 10, 2001 

DECISION 

EQUAL ACCESS TO JUSTICE 

PROCEEDING 

Docket No. EAJ 2001-3 

Formerly WEST 94-645-M 

Magma Mine 

ID. No. 02-00152 WJ6 

This case is before me on an Application for Award of Fees and Expenses under the 

Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504 and 29 C.F.R. § 2704.100 et seq. Dynatec 

Mining Corporation ("Dynatec Mining") filed the application against the Department of Labor's 

Mine Safety and Health Administration ("MSHA") based on my decision in Dynatec Mining 

Corporation, 20 FMSHRC 1058 (Sept. 1998), as modified by the decision of the Commission at 

23 FMSHRC 4 (Jan. 2001). MSHA issued one citation and 13 orders of withdrawal under 

section 104( d)( 1) against Dynatec Mining following an accident at the Magma Mine in which 

four people died. I vacated six of these orders of withdrawal and reduced the total penalty on the 

remaining eight items from $300,000 to $90,000. On review, the Commission vacated six 

additional orders of withdrawal with the result that one citation and one order remained and the 

total penalty is $60:000. Dynatec appealed the Commission's decision upholding the remaining 

citation and order to the Court of Appeals for District of Columbia Circuit. 

Dynatec Mining contends that it prevailed against MSHA because 12 of the 14 

citation/orders were vacated and the Secretary's total proposed penalty was reduced from 

$700,000 to $60,000. The Secretary opposes Dynatec Mining's application in this case and 

moved to dismiss the application. For the reasons set forth below, I grant the Secretary's motion 

to dismiss this application on the grounds that Dynatec Mining is not an eligible party. 

The EAJA limits recovery, as pertinent here, to "any ... corporation ... , the net worth of 

which did not exceed $7,000,000 at the time the adversary adjudication was initiated, and which 

had not more than 500 employees at the time the adversary adjudication was initiated." 5 U.S.C. 

§ 504(b){l){B). The Commission's regulation implementing this provision is at 29 C.F.R. 

§ 2704.104. The Commission's regulation requires the aggregation of affiliates, as follows: 

732 
The net worth and number of employees of the applicant and all of 

its affiliates shall be aggregated to determine eligibility. Any 

individual, corporation or other entity that directly or indirectly 

controls or owns a majority of the voting shares or other interest, 

will be considered an affiliate for purposes of this part, unless the 

administrative law judge determines that such treatment would be 

unjust and contrary to the purposes of the Act in light of the actual 

relationship between affiliated entities. 

29 C.F.R. § 2704.104(b)(2). 

An applicant for an award of fees and expenses has the burden of establishing that it is an 

eligible party. Dynatec Mining argues it is eligible because it had a net worth of less than seven 

million dollars and fewer than 500 employees at the time it contested the MSHA citation and 

orders. It presented credible evidence to support its position. It contends that its net worth and 

number of employees should not be aggregated with that of its affiliates. The Secretary presented 

evidence to show that if the Commission's aggregation regulation is applied in this case, Dynatec 

Mining would not meet the EAJA eligibility requirements. D}'natec Mining did not present 

conflicting evidence on this issue. Consequently, for purposes of this decision, I find that if 

Dynatec Mining's corporate affiliates are considered when evaluating eligibility under section 

2704.104, Dynatec Mining cannot be awarded fees and expenses under the EAJA because its net 

worth was greater than seven million dollars or it had more than 500 employees. I also find, 

based on the evidence presented by Dynatec Mining, that if the net worth and number of 

employees of its corporate affiliates are not considered, it would be an eligible party under the 

EAJA. Thus, this case raises issues concerning the application of the Commission's aggregation 

regulation and appears to be a case of first impression. 

Dynatec Mining contends that the Commission's aggregation regulation is ultra vires 

because it conflicts with the plain and unambiguous language of the EAJA. It argues that the 

EAJA does not require or authorize the aggregation of affiliated corporations. Further, because 

the Commission's aggregation regulation changes the EAJA eligibility requirements, it is 

unlawful and caruiot be used to determine Dynatec Mining's status as an eligible party in this 

EAJA case. In making this argument, it relies, in part, on Tri-State Steel Const. v. Herman, 164 

F.3d 973, 977-80 (61

h Cir. 1999). That case arose following an adjudication involving the 

Department of Labor's Occupational Safety and Health Administration ("OSHA"). The 

Occupational Safety and Health Review Commission ("OSHRC") aggregated the net worth and 

number of employees of Tri-State's corporate parent and determined that it was not an eligible 

party under the EAJA. The Sixth Circuit held that the Tri-State's net worth should not have been 

aggregated with that of its corporate parent because Tri-State was a separate corporate entity 

litigating on its own behalf and the interrelationship between Tri-State and its corporate parent 

did not justify aggregation. 

I reject Dynatec Mining's argument for a number ofreasons. First and foremost, I do not 

have the authority to overturn or ignore a regulation duly promulgated by the Commission. The 

733 
Commission's aggregation requirement has been in place since the Commission first 

promulgated regulations implementing the EAJA. When the Commission recently revised these 

regulations, many comments were received in response to its notice of proposed rulemaking 

suggesting that the aggregation requirement be eliminated. 63 Fed. Reg. 63172, 63173 (Nov. 12, 

1998). The Commission chose not to eliminate or modify this requirement in response to the 

comments. I cannot overturn the Commission's conclusion that an applicant's net worth should 

be aggregated with that of its corporate affiliates when determining whether an applicant is an 

eligible party. 

As the Sixth Circuit noted, the EAJA is "silent on the question of whether the net worth 

and employees of an otherwise eligible corporation should be aggregated with any related or 

affiliated corporations." 164 F.3d at 978. Although the OSHRC now has an aggregation 

regulation that is the same as the Commission's regulation, the OSHRC used a case-by-case "real 

party in interest" test in Tri-State. (29 C.F.R. § 2404.105(f); Nitro Elec., 16 BNA OSHC 1596 

(1994)). The Sixth Circuit noted that the OSHRC's new regulation was not before the court. 

164 F.3d at 978 n. 6. The court held that the OSHRC's application of its real-party-in-interest 

test to the facts of that case abrogated basic common law principles of corporate law. 164 F.3d at 

979. The Commission has not adopted a real-party-in-interest test. 

In the alternative, Dyna tee Mining argues that aggregation of Dynatec Mining and its 

affiliates would "be unjust and contrary to the purpose" of the EAJA "in light of the actual 

relationship between" Dynatec Mining and its affiliates. (D. App. 3-4 quoting section 

2704.104(b )(2)). First, it argues that aggregation would be unjust because it is contrary to circuit 

court precedent whereby recovery of fees is only precluded where the eligible party is a "front" or 

"sham" for an ineligible party or a nonparty that controls, directs, or finances the litigation. I find 

that Dynatec Mining is not a front or a sham and that MSHA issued the citations to Dynatec 

Mining not to its corporate parent. Based on these undisputed facts, Dynatec Mining argues that 

because it contested MSHA's citation, orders, and penalties on its own behalf, "its lawful 

relationship with its affiliates, which is typical in the mining industry, cannot justly be used to 

deny it eligibility under the EAJA." (D. App. 5). The court decisions cited by Dynatec Mining 

discuss the real-party-in-interest doctrine. The Commission has not adopted this doctrine. 

Moreover, as Dynatec Mining states, the relationship between it and its affiliates is typical for the 

mining industry. Dynatec Mining has not presented any facts to show that its relationship with 

its corporate affiliates is different from what is commonplace in the mining industry. ·Dynatec 

Mining is a wholly owned subsidiary of a corporation that is too large to be an eligible party 

under the EAJA. IfI were to find that aggregation is unjust in this case based on Dynatec 

Mining's actual relationship with its affiliates, I would have to do so in virtually all cases. The 

"actual relationship" exception to the Commission's aggregation regulation would subsume the 

rule under Dynatec Mining's interpretation. In essence, I would be invalidating the regulation. 

Second, Dynatec Mining argues that requiring aggregation in this case would undercut 

one of the EAJA's primary goals, which is "deterring the unjustified action in the frrst place." 

Tri-State, at 978. It argues that excluding "otherwise eligible subsidiaries, such as Dynatec 

Mining Corporation, based on affiliation, means that, for all practical purposes, only a handful of 

734 
Section 1 lO(c) claimants and uniquely unaffiliated mining entities will ever be EAJA eligible in 

Mine Act proceedings." (D. Br. 5). I agree. At the present time, there is a large number of 

unaffiliated sand, gravel, and aggregate operators, but even their number is. becoming smaller as 

consolidation continues in that industry. Small mine operators in other mining sectors are 

affiliated with larger entities with increasing frequency. Nevertheless, the Commission was 

surely aware that the application of its aggregation requirement would disqualify many operators 

from recovering fees and expenses when it originally promulgated its EAJA regulations and 

revised them in 1998. I cannot invalidate the Commission's aggregation regulation on the basis 

that it prevents a large number of mine operators from recovering fees and expenses under the 

EAJA. Dynatec Mining must address these arguments to the Commission. 

Dynatec Mining makes other arguments in its application and in its reply to the 

Secretary's answer and motion to dismiss. These arguments are made in support of its position 

that the Commission's aggregation regulation is inconsistent with the language of the EAJA, its 

legislative history, and the intention of Congress. For the reasons set forth above, I am required 

to apply the Commission's aggregation regulation in this case. 

Dynatec Mining submitted the affidavit of John D. Marrington, General Manager and 

Vice President of Dynatec Mining, to support its application. In the affidavit, Mr. Marrington 

testified that Dynatec·Mining was a wholly owned subsidiary of another corporation at the time 

the adjudication was initiated. 1 Marrington states that he controlled and directed the course of 

the adjudication of the citation and orders issued by MSHA. He states that MSHA's proposed 

$700,000 penalty against Dynatec Mining had an adverse impact on it because the proposed 

penalty required it to take a financial charge on its books in 1994, 1995, and 1996. Marrington 

also states that the civil penalty cases caused Dynatec Mining to incur substantial legal fees and 

expenses. Dynatec Mining paid all legal expenses and fees in the underlying adjudication and it 

received no funding from its affiliates specifically allocated for this purpose. He states that 

Dynatec Mining, not its affiliates, was liable for the proposed civil penalty, which was "nearly 

equivalent to the entire net worth ofDynatec Mining" and if assessed in full, would have 

substantially and adversely impacted Dynatec Mining's business. (Marrington Aff. 1111). 

The Commission's regulation provides that"~ individual, corporation or other entity 

that directly or indirectly controls or owns a majority of the voting shares or other interest, will 

be considered an affiliate for purposes of this part." (emphasis added). At the tinie the 

underlying adjudication commenced, Dynatec Mining's corporate parent owned all of the voting 

shares of the company and its net worth is therefore required to be aggregated with that of 

Dynatec Mining under the regulation. As stated above, there has been no showing that Dynatec 

Mining's "actual relationship" with its corporate parent is so different or unique that its 

1 At the time the underlying cases were initiated, Dynatec Mining was a wholly owned 

subsidiary of Tonto Drilling Supplies, Inc. (renamed Dynatec Drilling Supplies, Inc.), which was 

wholly owned by Dynatec International, Ltd. (Marrington Aff. ii 5). In 1997, following a merger 

and reorganization, Dynatec Mining became a wholly owned subsidiary of Dynatec Corporation 

USA, which is wholly owned by Dynatec Corporation. (Marrington Aff. 11 7). 

735 
"treatment" under the Commission's regulation is "unjust and contrary to the purposes of the 

[EAJ] Act" when compared to any other mine operator or independent contractor that is owned 

by a larger entity. In its application, Dynatec Mining is asking that I directly or indirectly 

invalidate the Commission's aggregation regulation. Because I am bound by the Commission's 

aggregation regulation, I must interpret it so as to give it the force and effect of law. I conclude 

that Dynatec Mining is not an eligible party under 29 C.F.R. § 2704.104(b)(2). Consequently, I 

do not reach the merits ofDynatec Mining's application under section 29 C.F.R. § 2704.105. 

For the reasons set forth above, the Secretary's motion to dismiss this case is GRANTED 

and this proceeding is DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

C. Gregory RuffelUlach, Esq., 450 East 3rd Avenue, Durango, CO 81301 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203-1954 (Certified Mail) 

RWM 

736 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303-844-5268 

July 11, 2001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

DISCRIMINATION COMPLAINT 

Docket No. WEST 2000-203-D 

on behalf of ERNEST J. JENSEN, DENV CD 99-16 

Complainant 

v. 

Trail Mountain Mine 

Mine ID 42-01211 

ENERGY WEST MINING COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Edward F. Falkowski, Esq., Office of the Solicitor, U.S. Department of 

Labor, Denver, Colorado, for Complainant; 

Thomas C. Means, Esq., CROWELL & MORING, LLP, 

Washington, DC, for Respondent. 

Judge Cetti 

This case is before me upon the complaint filed by the Secretary of Labor, pursuant to 

Section 105(c)(2) of the Federal Mine Safety Health Act of 1997, 30 U.S.C. § 801 et. seq., the 

"Act." Complainant alleges that Energy West Mining Company (Energy West) violated section 

105(c)(l) of the Act, 1 30 U.S.C. § 815(c), when it discharged Ernest J. Jensen on May 13, 1999, 

for his alleged chronic and excessive absenteeism under its "Chronic and Excessive Absenteeism 

Program" which it adopted in 1996. 

Jensen was first employed by Energy West in 1975. Since April 1997 he was employed 

at Energy West's Trail Mountain Mine. In October of 1998 Jensen was placed on step 3 of the 

final step of Energy West's "Chronic and Excessive Absentee" program. Under step 3 of that 

program Jensen was subject to discharge if, during the next 12 months, his non-contractual and 

1 Section 105(c)(l) provides in pertinent part: 

No person shall discharge or in any manner discriminate against 

or cause to be discharged or cause discrimination against or 

otherwise interfere with the exercise of the statutory rights of any 

miner, [or] representative of miners ... of any statutory right 

afforded by this Act. 

737 
non-industrial absences under the program exceeded the mine's average non-contractual absent 

rate for those months. On April 21, 1999, Jensen had an unexcused non-contractual, nonindustrial absence that exceeded the mine' s average non-contractual absence rate for that month. 

He was terminated on May 13, 1999, under the program for his chronic and excessive 

absenteeism. 

It is undisputed and specifically conceded by Energy West that Jensen in the past had on 

occasion engaged in protective activity. Energy West denies that the suspension and termination 

of Jensen was in any part motivated by any safety-related conduct or complaints by Jensen. 

While Jensen's attendance record clearly demonstrates chronic and excessive absenteeism, Jensen contends that this is a "mix-motive case" and that the adverse action (his suspension 

and discharge) were motivated in some part by his safety-related conduct and complaints. 

On or about June 7, 1999, Jensen timely filed a complaint of discrimination with MSHA 

alleging that he was terminated by Respondent because he had exercised his rights under the Act. 

Discrimination 

A miner establishes aprimafacie case of prohibited discrimination by proving that he 

engaged in protected activity and that the adverse action complained of was motivated in any part 

by that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2797-2800 (October 1980), rev'd on other grounds, sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (April 1981). The 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 protected activity. Pasula, 2 FMSHRC at 2799-2800. If the operator cannot rebut 

the prima facie case in this manner, it nevertheless may defend affirmatively by proving that it 

also was motivated by the miner's unprotected activity and would have taken the adverse action 

in any event for the unP-rotected activity alone. Pasula, 2 FMSHRC at 2800; Robinette, 3 

FMSHRC at 817-18; see also Eastern Assoc. Coal Corporation v. United Castle Coal Co., 813 

F.2d 639, 642 (41

h Cir.1987). 

Protected Activity 

Energy West acknowledged from the beginning that Jensen had engaged in some 

protected activity. Jensen himself testified that sometime in 1979 or 1980, in the presence of an 

MSHA inspector, he contradicted manager Kevin Tuttle's statement to the inspector that a 

particular violation had existed for only a few days and stated that the violation existed for much 

longer than that. (Tr. 30-31). Jensen testified that in mid-1997 he argued with someone in mine 

management about the effectiveness of the roof-bolting in the longwall section; that in mid-1997 

he refused to work at the tailgate of the longwall without a dust pump; that he spoke to the 

738 
MSHA investigator in late 1997 or early 1998 about an April 1997 accident which, he claims, 

reinjured his neck. 

Although Jensen was outspoken on some safety matters, his own witness acknowledged 

that there were other miners who were more outspoken than Jensen on safety matters and none of 

them had been disciplined. T. 487, 138. In that regard, Mr. Snow, who eventually discharged 

Jensen, testified that protected activities are a miner's "protected right" and he would not allow 

anyone to be disciplined for engaging in protected activity as long as he was in charge. (Tr. 250). 

I credit Snow's testimony. Based on the evidence, I am satisfied that the conduct that concerned 

Energy West management was Jensen's excessive and chronic absenteeism, not his protected 

activity. 

Jensen's Absenteeism 

Jensen testified that he first injured his neck in April 1993, when a shuttle car he was 

operating ran off a lip, causing his head to jam against the cab. He had neck pain. He did not 

lose any time from work immediately after that but in August 1994 he was placed on unpaid sick 

leave. On December 13, 1995, Mr. Jensen underwent neck surgery which he states resulted from 

the April 1993 accident. His neck problem was a disputed job injury. The workmen's compensation carrier sued him for the return of the worker's compensation benefits it provided. 

Upon his return to work at the Trail Mountain Mine on April 7, 1997, after a long 

extended two-year absence, Jensen was given a letter from Respondent, dated April 3, 1997, 

advising him that he would be subject to discharge if his attendance at the mine did not improve, 

or if he took additional extended absences from his job. 

On April 15, 1997, just eight days after his return to work, Jensen reported an accident 

similar to the one he reported in 1993. Jensen testified that he reinjured his neck when a vehicle 

he was driving suddenly dropped over a lip in the mine roadway. Jensen reported this accident to 

his supervisor Jim Basso during his lunch break but lost no time from work and later requested 

medical attention for his neck problem. Jensen filed a complaint with MSHA, pursuant to 

section 103(g) of the Act, complaining about the road condition in the 9th right working section. 

Pet. Ex. 6. MSHA ultimately issued a citation to Respondent under section 104(a) of the Act, for 

the road condition. Pet. Ex. 6. 

On April 18, 1997, Jensen attended a meeting with his foreman, Jim Basso, and the 

Manager for Health, Safety and Training, Kevin Tuttle. In this meeting, Jensen was informed 

that he would be classified as an unsafe worker as a result of his accident several days earlier. 

Apparently, in response to this information Jensen, on May 8, 1997, filed a discrimination 

complaint with MSHA. On March 22, 1999, a formal settlement agreement, not involving the 

Commission, was reached between Respondent and MSHA regarding Jensen's complaint. 

(Com. Ex. 4). 

739 
Between May of 1997 and April of 1999, Jensen had uncontractual absences from work 

on several occasions. During this period, Respondent placed Jensen on the company's Chronic 

and Excessive Absentee Program. Because of these excessive unexcused non-contractual 

absences, Jensen advanced through the progressive steps of the program and at the final step was 

discharged on May 13, 1999, under that program for his chronic and excessive absenteeism. 

Energy West presented persuasive evidence that Jensen was discharged for one reason 

only and that was Jensen's chronic and excessive absenteeism. 

Evidence was presented that excessive absenteeism of employees was a serious problem 

at Energy West. To correct the problem, Energy West in 1996 adopted a more restrictive 

absentee program. The reason for the adoption of the program and a concise summary of its 

pertinent provisions are set forth in Respondent's Ex. C as follows: 

Chronic and Excessive Absentee Program 

Absenteeism continues to be a serious problem at Energy 

West Mining Company. The current Chronic and Excessive 

Absentee Program has become ineffective. In an attempt to correct this continuing problem, the Chronic and Excessive Absentee 

Program is being changed to take into consideration changes that 

have occurred since the original Chronic and Excessive Absentee 

Program was adopted. 

Employees who continue to be excessively absent from 

work cannot expect to continue to remain employed at Energy 

West Mining Company. Effective immediately, with the implementation of this revised program, if an employee's absence rate 

for non-_contractual absences exceeds the mine's average noncontractual absence rate, that employee will be subject to corrective action up to and including discharge. Non-contractual 

absences are defined as all absences except paid personal or 

sick leave, graduated vacation, regular vacation, paid bereavement days, military duty, jury duty, union business and days 

properly considered as family and medical leave. 

Counseling 

If during any calendar month an employee's non-contractual 

absentee rate exceeds the mine's average non-contractual rate 

the employee will be counseled by management. A written 

record of the counseling will be maintained by management. 

740 
Written Warning 

If during any month in the next twelve (12) months after an 

employee has received counseling an employee's non-con 

tractual absentee rate again exceeds the mine average noncontractual absentee rate the employee will receive a written 

warmng. 

Final Warning 

If during any month in the next twelve (12) months after an 

employee has received a written warning the employee's noncontractual absentee rate again exceeds the mine average noncontractual absentee rate the employee will receive a final written warning. 

Suspension With Intent to Discharge 

If during any month in the next twelve (12) months after an 

employee has received a final written warning the employee's 

non-contractual absentee rate again exceeds the mine average 

non-contractual absentee rate the employee may be suspended 

with intent to discharge. 

Clearing an Employee's Record 

If an employee maintains an absentee rate for non-contractual 

days below the mine average for a period of six consecutive 

months after receiving corrective action, the employee will go 

to next lower step in the corrective action program. If an employee maintains an absentee rate for non-contractual days 

below the mine average for a period of twelve (12) consecutive calendar months after receiving corrective action, the employee's attendance record will be considered as cleared. 

Thus the program not only provides for progressive, adverse steps if unexcused 

absenteeism continued but also provides an opportunity at every step for a miner to correct his 

excessive absenteeism and progressively clear his attendance record under the program. 

Under the wage agreement (union contract) employees such as Jensen are entitled a total 

of 44 days to be absent from work and receive pay. These paid days off, called contractual days, 

are as follows: 

741 
12 days 

9dzys 

11 ~ys 

12 <lays 

44days 

Grad~ted Vacation 

Person~} or Sick L~ave 

Holiday~ 

Vacation 

Total (Pg 13 :ax. 33) 

In addition to all these paid days off, employees who have worked 1250 hours in the prior 

12 months are eligible to receive 12 weeks off from work for Family and Medical Leave (FMLA) 

which is also not subject to corrective action. 

Jensen's attendance record for the past few years show J eμsen' s non-contractual days 

absence rate, as compared to the mines average non-contractual absenteeism rate may be 

summarized as follows: 

No. Of noncontractual days Ernest Jensen's Mine nonErnest Jensen Non-contractual contractual 

Year was absent absenteeism rate absenteeism rate 

1990 119 45% 3.25% 

1991 22 8% 3.78% 

1992 54 20% 4.20% 

1993 30 11% 4.30% 

1994 96 36% 4.85% 

1995 Entire Year 100% 6.28% 

1996 Entire Year 100% 5.20% 

1997 37 14% .71% 

1998 64 24% .45% 

1999 26 30% .61% 

Jensen's attendance history clearly shows there has not been a year since 1990 where 

Mr. Jensen's absentee rate had not exceeded the mine average. 

A final warning, step 3 of the C&E program, was given to Jensen on December 16, 1998. 

Jensen had a non-contractual absence on April 21, 1999. The mine non-contractual rate for April 

1999 was less than 1 % (.55%) and Jensen's non-contractual rate was 8%, which again far 

exceeded the rate for the mine. Jensen was suspended with intent to discharge. Earl Snow, the 

mine's general superintendent, discharged Jensen on May 13, 1999, for his chronic and excessive 

absenteeism. 

Aside from the C& E program and its provisions and technicalities, the evidence 

presented clearly demonstrates that Jensen, in the last few years of his employment had a 

742 
chronic and excessive absentee problem. He had ample opportunities to improve his attendance 

record., but failed to do so. 

Following his discharge, in addition to filing a 105(c) discrimination complaint, Jensen 

also filed an arbitration procedure through his union. Marvin I. Fieldman was the selected 

arbitrator. A hearing on the discharge of Ernest Jensen was held before the arbitrator in August 

1999. In his decision of August 16, 1999, the arbitrator upheld the discharge. He found that 

there was just cause for Jensen's discharge; that the policy of Energy West was "reasonable" and 

"evenhandedly applied." (Resp. Ex. T). 

I place substantial weight on Arbitrator Fieldman's decision. 

Following his discharge, Jensen was not eligible to file for unemployment compensation 

because he was an employer. (Pg. 7, Ex. U). When questioned at the hearing by Respondent's 

counsel as to his status as an employer, Jensen testified that he has owned and operated a cement 

construction business since 1977. He has seven employees and concedes the business is large 

enough to do several jobs at one time. He has had contracts with local governments to do paving 

and concrete work. Jensen conceded that sometimes when he was not at work at the Trail 

Mountain Mine·he was at work at his cement construction company. (Tr. 87-88). Asked as to 

how many hours he put in at the construction company, Jensen stated "a couple, 3 hours a day, 

some days more, some days four or five hours." (Tr. 89). 

General Superintendent Snow who discharged Jensen was asked ifhe considered 

giving Jensen a last agreement or another break as he felt he had done in the past. Snow 

responded as follows: 

No, sir. I'd already felt that there had been many last 

chances at this point in time. The corrective actions all in 

themselves are last chances, particularly the step three basically is a 

last chance, an easy one to get out of. Plus the fact that I'd worked 

with Ernie on several occasions. In particular he could have been 

discharged in December, February, March. I had already exceeded 

my authority, you know. By not giving cor- rective action, and at · 

this point in time I didn't feel that there was any value, that Ernie 

was not a candidate and it was inappropriate, he'd already had 

many last chance agreements. (Tr. 246-247). 

I note even as early as April 3, 1997, management sent Jensen a memo regarding 

attendance that many employees would consider a last chance to correct his chronic and 

excessive absenteeism. The letter to Jensen reads as follows: 

743 
SUBJECT: Attendance Requirements 

It is my understanding that you will be returning to work on 

Monday, April 17, 1997. For the past several years your attendance at work has been unacceptable. Your absenteeism rate has 

been so excessive that you cannot even be termed a part-time 

employee. 

This letter is to notify you that if upon your return to work, 

your attendance record does not improve to an acceptable level you 

will be suspended with intent to discharge. In the event you return 

to work for a short time and then go back off work on an extended 

leave you will be subject to discharge. 

It is management's hope that you will attend work on a 

regular basis and further action will not be necessary. 

cc. David Campbell, President 

Local·2176, UMWA 

After Jensen's discharge, a question arose as to whether or not at the time of his discharge 

he still had one personal leave day that at Jensen's request could have been used at management's option to cover Jensen's absence of April 21, 1999. Evidence was presented that even if 

Jensen had a personal day left on his attendance calendar, it would have been used up by his 

absences on March 9 and 10. (Tr. 260-274). 

I am satisfied from the record at the time of Jensen's discharge that neither Jensen, 

Snow, nor anyone was aware that Jensen may have had a personal day left on his attendance 

calendar. Counsel for pnergy West maintains that there was no personal day available to cover 

the absence of April 21 and that everyone concerned knew that. Furthermore, he contends that 

even if a personal leave day were available, Jensen would have had to ask for it and then it was 

up to management to decide to grant it or not. Respondent's counsel also contends that even if 

Jensen is able to show a mistake was made, it would not establish that any part of the motivation 

for the discharge was something other than Jensen's chronic and excessive absenteeism. I find 

merit in counsel's contentions. Jensen was discharged for his chronic and excessive absenteeism 

and was not suspended or discharged in any part for his safety complaints or any other protected 

activity. 

The Secretary's Motion to Reopen the Record and later her supplemental motion to 

Submit in the record the declaration of Kevin Phillips are untimely and fail to meet her heavy 

744 
burden to justify the extraordinary relief of reopening the record to receive new evidence. See 

Meek 15 FMSHRC 606, at 614. See also Commission Rule lO(b) and lO(d)., In addition, the 

proffered evidence would not change the results of the hearing. 

On the basis of the evidence and record as a whole, I find that Jensen's suspension and 

discharge were in no part motivated by activities protected under the Act. The Secretary's 

complaint on behalf of Jensen is DISMISSED and the Order of Temporary Reinstatement is 

DISSOLVED forthwith. 

~~if$ Administrative Law. Judge 

Distribution: 

Edward F. Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202-5716 (Certified Mail) 

Thomas C. Means, Esq., CROWELL & MORING LLP, 1001 Pennsylvania Avenue, NW, 

Washington, DC 20004-2595 (Certified Mail) 

/sh-ek 

745 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF WILLIAM JENKINS 

AND MICHAEL MAHON, 

Complainants 

V. 

DURBIN COAL, INC., 

Respondent 

July 24, 2001 

DISCRIMINATION PROCEEDING 

Docket No. WEV A 2000-31-D 

HOPE CD 99-10 

Mine No. 1 

Mine ID 46-08102 

DECISION 

Appearances: M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, for Complainants; 

David J. Farber, Esq., Patton Boggs, LLP., Washington, D.C. and John Kirk, Esq., 

Inez, Kentucky, for Respondent 

Before: Judge Zielinski 

This matter is before me on a complaint of discrimination filed by the Secretary on behalf 

of William Jenkins and Michael Mahon pursuant to section 105(c)(2) of the Federal Mine Safety 

and Health Act of 1977 (the "Act"). 30 U.S.C. § 815(c)(2). The complaint seeks an order 

declaring that Respondent, Durbin Coal, Inc., discriminated against Jenkins and Mahon and other 

relief including back pay and benefits, as well as a civil penalty in the proposed amount of 

$12,000.00. A hearing was held in Inez, Kentucky on December 5, 2000 and concluded on 

January 30, 2001, and the parties submitted briefs following receipt of the trans~ript. For the 

reasons set forth below, I find that Respondent did not discriminate against Jenkins and Mahon in 

violation of the Act. 

Findings of Fact 

Jenkins and Mahon worked the second shift at Durbin' s underground coal mine until their 

employment ended on March 2, 1999. Whether they voluntarily left their jobs or were 

terminated by Respondent is hotly contested. Jenkins was a shuttle-car operator. He had worked 

at Durbin's mine twice in the past and over the last ten years had worked at various times for 

Universal Coal, a contractor that provided labor to a number of mines. Mahon operated a roof 

746 
bolting machine, or "pinner." He had worked at Durbin's mine approximately six months and 

had been employed for over three years before that at another mine that was co-owned by Carl 

Kirk, who was also a co-owner of Durbin. Jenkins and Mahon were related as "half brothers," 

born of the same mother, and both men were considered good employees who were capable of 

operating a variety of mining equipment and performing whatever tasks were needed. 

In early 1999, Durbin was experiencing what it viewed as a high number of inspections 

by the Secretary's Mine Safety and Health Administration (MSHA) prompted by confidential, 

phoned-in complaints, commonly referred to as "code-a-phone" complaints. Miners were not 

raising safety issues with management and MSHA inspectors rarely found the conditions 

complained of Kirk had visited the MSHA district office to discuss the complaints because their 

frequency was disrupting operations. He was advised by MSHA officials that the number and 

lack of merit of the complaints was a concern to them also because it resulted in a lot of "wasted 

time" on inspections. MSHA officials eventually went to the mine, met with the miners and 

encouraged them to raise safety issues with management in the first instance and to make code-aphone complaints if management did not satisfactorily address the problem. This had little 

impact on the frequency and nature of the complaints. 

On February 26, 1999, at about 2:00 p.m., Edward Paynter, an MSHA inspector, 

responded to Durbin's mine to conduct an inspection regarding a code-a-phone complaint that 

had been transcribed and forwarded by facsimile to his office the day before. The complaint was 

about "deep cuts and dust" and bore a date and time notation at the top left comer of"2/25/99 

14:51." When he showed the brief complaint to Forest Newsome, Durbin's superintendent, he 

appeared somewhat angry and inquired if Paynter knew who made the complaint. When he 

received a negative response, he stated that he knew who it was, apparently basing his 

determination on the noted time of 14:51, or 2:51 p.m. 1 Paynter told him that the notation 

indicated when the copy of the complaint form had been transmitted by facsimile to their office, 

not necessarily the time of the call. Paynter met with the miners on the first and second shifts, 

and requested additional information in order to properly investigate the complaint. He told the 

men that if they wanted help from MSHA they would have to be willing to provide more 

information and that complaints should not be used as pranks or to vent frustrations. None of the 

miners present volunteered additional information. Paynter issued dust sampling pumps to the 

underground miners and went underground with them to conduct the inspection and monitor the 

dust sampling. He did not find evidence of deep cuts and the dust sampling results, returned the 

next day, were within acceptable limits. 

The Secretary argues that Newsome's statement indicated that he suspected that 

Mahon had made the complaint because he was absent because of illness that day. However, it 

was not established that Mahon was the only second shift miner absent that day. Nor was it 

explained why a miner on another shift, and/or who may have been absent that day, could not 

have made the call. 

747 
Billy Williams, a second shift miner, testified that Newsome had told him that the 

complaint initiator was likely one of the "two Billy's" working the second shift because they 

were the only ones who had raised concerns about dust. However, Newsome denied that the 

other ''Billy," William Jenkins, had complained about dust and Jenkins, himself, also denied 

making such complaints and stated only that he might have said something about ventilation or 

getting line curtain installed sometime in the past. Newsome had remarked, in the presence of a 

few miners, that he would give $1,000 to know who was making the code-a-phone complaints. 

However, there is no indication that anyone took this "offer" seriously. David Runyon, an 

electrician and mechanic, heard of the remark and jokingly said they could tum him in and split 

the $1 ,000 if they could find anyone to pay it. Jenkins too laughed it off when he heard about it. 

On March 1, 1999, Mahon reported to work to find that someone had taped his pliers 

together and written the word "rat" on his belt. He took it as a joke, consistent with similar 

pranks that the miners perpetrated on each other, though after learning of the February 26 

inspection, it occurred to him that the word "rat" may have been a reference to the person who 

had called in the complaint. Mahon told Newsome about it, and he also took it as an 

unremarkable prank. When Mahon later made a joking comment that he was a rat and would 

report his foreman's efforts to get the shift started a few minutes early, he perceived that 

Newsome, who was in an adjoining office, "slammed" the door. 

At the time, Durbin was experiencing unexplained losses of equipment and supplies, 

which it was suspected were being stolen from the mine site, possibly by employees. Kirk 

monitored costs closely and had noticed an unusual increase in expenditures for bits for 

continuous mining and roof bolting machines, which he thought also might be related to the theft 

problem. He had instructed his mine superintendent, Newsome, and the person who handled 

supplies, Richard Mollette, to tighten up controls on supplies, including specifically pinner bits, 

and generally keep the supply room locked. 

On March 2, 1999, Jenkins and Mahon arrived for work at the normal time, about 

2:00 p.m .. Mahon rode to work in Jenkins' pickup truck, which had an open bed and a closed 

but unlocked toolbox immediately behind the cab. Mollette, who was in the supply room of the 

mine's office trailers; heard a noise like someone tossing something into the bed of a truck and 

looked out to see Jenkins returning from the area of the truck. He finished working with the 

supplies and told Newsome about it after the second shift men had gone underground. Newsome 

decided to investigate. He, Mollette and Jeffrey Farris, a mine foreman, went to Jenkins' truck 

and looked into the bed and through the windows into the cab. They did not see anything 

unusual. When Newsome lifted the top of the toolbox, however, he saw boxes containing roof 

bolter bits which were the same type 0fbits used by Durbin, some of which were wired together 

in the same manner that Mollette prepared them for Durbin's roof bolter operators. They counted 

135 bits in the boxes. Newsome and Mollette felt that the bits belonged to Durbin. 

Growing concerned about whether their search of the truck was legal, Farris called the 

West Virginia State Police post and was advised that the search was likely illegal and that the 

748 
matter should be handled administratively. Newsome called Kirk and told him what he had 

found. Kirk happened to be en route to the mine site to deliver some suppli.es to replace items 

that had been "lost" from the mine. He advised that he would be at the mine site in about fifteen 

minutes at which time they would discuss what to do. When he arrived, he and Newsome 

discussed the issues and Kirk advised Newsome to talk to Jenkins and Mahon, advise them what 

had been found and see what they had to say about it. He cautioned that they should not be 

accused of anything, just questioned, and told Newsome to have witnesses present for the 

conversation. Newsome wanted to do it before he left work, rather than wait until the end of the 

second shift, and Kirk stated that he could call the men out during the shift and talk to them. 

Kirk then left the mine site. 

Newsome called down into the mine and spoke with David Runyon and told him that 

Jenkins and Mahon were needed on the surface. David Runyon told Frank Runyon, the foreman, 

that Jenkins and Mahon were needed on the surface and that he would give them a ride out of the 

mine in a mantrip. ·Although Newsome did not say anything about an emergency at home, it was 

unusual for miners to be called out of the mine during a shift and the calling out of these related 

miners raised the possibility of an emergency at home, possibly involving their mother. Frank 

Runyon likely included a comment to the effect- "I don't know whether there's an emergency 

at home, or what" - when he told Jenkins and Mahon to report to the surface. The trip to the 

surface took approximately 30 minutes, during which Jenkins and Mahon were very concerned 

about a possible emergency involving their families. 

When they got to the surface, Jenkins dropped his gear into his truck and proceeded to 

change clothes. Mahon went to use the phone in the office to call home. Newsome interrupted 

him, saying: ''There is nothing wrong. !just want to talk to you." He told Mahon that pinner bits 

were found in the truck and he asked where they came from. Mahon became angry and 

responded that if there were bits in the truck they belonged to his brother, Kip Mahon. He 

protested that Durbin had no business searching his brother's truck and that Jenkins would be 

angry about it. Jenkins came into the room and Mahon told him there was nothing wrong at 

home and that Newsome had found pinner bits in his truck and wanted to know where they came 

from. Jenkins became very upset and cursed Newsome for searching his truck. He also stated 

that if there were bits in the truck that they belonged to their brother Kip Mabon. Both men 

indicated that their brother, Kip, had asked them to try and sell some pinner bits a week or two 

before and speculated that Kip may have placed the bits in the truck over the weekend, without 

their knowledge. They had previously, however, indicated to another miner, Billy Williams, that 

they believed that Kip had obtained the bits illegally and were aware that the bits were in the 

truck. I find that Jenkins and Mahon knew, on March 2, 1999, that the bits were in the truck and 

that they believed that their brother Kip had stolen the bits. 

There was a very heated exchange between Jenkins and Mahon and Newsome, including 

much cursing, primarily by Jenkins and Mahon. Jenkins was more angry than Mahon. Jenkins 

asked if they were fired, and Newsome responded that he had not fired anybody. Mahon went 

out to the truck to see if the bits were still there. Upon returning, he encountered Jenkins leaving 

749 
the office trailer and was told by him that Kirk didn't need them anymore. Both men got into the 

truck and left the mine. A few minutes later they returned to get their belongings. Jenkins stated 

that he believed that the incident was not about bits but was because of safety complaints that 

Durbin suspected he had made. Newsome denied that the incident had anything to do with safety 

complaints. Mahon requested that Newsome provide him with a "fired slip," documentation of 

the termination of their employment, and Newsome indicated that he would have one for them 

the next day. However, no such documentation was supplied. 

The following day, Jewell Mahon, Michael's wife, called Newsome inquiring about final 

pay checks for the two men, noting that when men are fired they should be paid the next day. 

Newsome responded that the men were not fired, they had quit. She responded that if they 

weren't fired, then they could report for their regular shift, to which Newsome responded that he 

didn't want them back on mine property. When Paynter returned with the negative dust sample 

analysis on March 3, 1999, Newsome remarked that he thought that he had gotten rid of his 

problem. Paynter did not know wether that was a reference to the thefts or the complaints. 

Records maintained by Durbin, which appear to have been filled out and executed on March 2, 

1999, by Newsome and Farris, note that both Complainants "got mad and quit" and that they 

would not be hired back. A personnel record maintained by Mahon Enterprises2 reflects· that 

Mahon "walked off the job when the person he rode with was asked about some items in the 

back of his truck" and notes the reasons for the action as "Dissatisfied" and "Personal reasons."3 

Mahon claimed unemployment benefits and a statement he gave on March 9, 1999, was 

essentially consistent with his allegations. However, at a subsequent "predetermination hearing" 

he apparently stated that Newsome responded "I don't know" when Mahon asked if he was being 

fired. 4 Newsome told several people after the fact, that Jenkins and Mahon had quit. Although, 

he also told Paynter that they had been fired. 

In October of 1999, Kirk's then superintendent James Fain, indicated that he wanted to 

hire Mahon and inquired whether Kirk had any objection. Kirk responded that Fain was in 

charge and he could hire whoever he wanted to, that he had no objection to hiring Mahon. Kirk 

also testified that he felt that the incident had gotten out of control, reached an unfortunate result, 

and that he likely would not have objected to Jenkins being rehired. Mahon voluntarily left 

employment at Durbin's mine in February of 2000. Aside from Mahon's brief period ofreemployment, neither Jenkins nor Mahon has since worked at a mine in which Kirk had an 

ownership interest. 

2 Complainants' actual employer was Mahon Enterprises, a contractor that provided 

labor for Durbin's mine. Durbin has stipulated that it is an operator subject to the Act and is 

responsible for any discrimination against Jenkins and Mahon. 

3 These documents were exhibits to Carl Kirk's deposition, which was admitted 

into evidence as Complainants' Ex. 32. 

4 See, exhibit 3 to the Kirk deposition and Respondent's Ex. 1. 

750 
Conclusions of Law - Further Factual Findings 

A complainant alleging discrimination under the Act typically establishes a prima facie 

case 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. See Driessen v. 

Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec '.Y of Labor on behalf of Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981 ); Sec '.Y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator my 

rebut the prima facie case by showing either that no protected activity occurred or that the 

adverse action was in no way motivated by protected activity. See Robinette, 

3 FMSHRC at 818 n. 20. If the operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively 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. 

Id. at 817-18; Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 

813 F.2d 639, 642-43 (4th Cir. 1987) (applying Pasula-Robinette test). 

Complainants here do not allege that they engaged in protected activity.5 Rather, they 

contend that they were fired, or constructively discharged, because Respondent believed, or 

suspected, that they had engaged in protected activity, i.e., making code-a-phone complaints to 

MSHA. Their allegations state a viable claim of discrimination under the Act. Sec '.Yon behalf 

of Moses v. Whitley Development Corp., 4 FMSHRC 1475 (1982), pet. for rev. den., Whitley 

Development Corp. v. FMSHRC, 770 F.2d 168 (6th Cir. 1985) (table). In Moses, the 

Commission held that "discrimination based upon a suspicion or belief that a miner has engaged 

in protected activity, even though, in fact, he has not, is proscribed by section 105(c)(l)." Id. at 

1480. Complainants further allege that they were falsely accused of stealing company property 

as a pretext for Respondent's discriminatory action. 

While there is evidence that Durbin may have suspected that Jenkins and/or Mahon had 

made code-a-phone complaints, I find that they left their employment in a fit of anger after being 

questioned about the pinner bits found in Jenkins' truck. They suffered no adverse action, i.e., 

their employment was not terminated, either actually or constructively, by Durbin. The 

Commission has made clear that adverse action is an essential element of a discrimination 

claimant's case, and in the absence of adverse action no finding of discrimination can be made. 

Dolan v. F & E Erection Co., 22 FMSHRC 171, 175 (Feb. 2000). In addition, I find that the 

incident that led to their departure from Durbin was not precipitated, in any part, by suspicion 

that they had engaged in protected activity. 

5 While Complainant Jenkins had refused to operate a shuttle car on which 

monitors had been bridged out, his actions had not produced any adverse reaction by his foreman, 

Frank Runyon, who appears supportive of both men. Complainants have also made clear that 

their theory of liability is that they were terminated because of an erroneous belief or suspicion 

that each of them had engaged in the protected activity of making code-a-phone complaints. 

751 
Complainants have devoted considerable attention to the "home emergency" issue, 

arguing that they are entitled to some leeway for impulsive behavior prompted by Durbin's 

"wrongful provocation," at least implying that Durbin deliberately decided to use a home 

emergency as a ruse to get them out of the mine. However, there would have been no need for 

Durbin to resort to a ruse. Complainants were subject to directives by their supervisors and 

presumably would have responded to an instruction to report to the surface. While unusual, men 

are occasionally called out of a mine, sometimes for unremarkable reasons, such as a need to 

move a vehicle. That said, those involved in responding to Newsome's request to bring the men 

out speculated that there might be something wrong at home. Frank Runyon and David Runyon 

admitted that the subject crossed their minds. The concern was verbalized, at least to the extent 

of an innocent comment by Frank Runyon to the effect: "I don't know if it's an emergency at 

home, or what." It would also have been reasonable for Jenkins and Mahon to conclude that they 

were likely being called out because of a home emergency. I find that both Jenkins and Mahon 

believed that the reason they were being called to the surface was some emergency at home, 

possibly related to their mother's health.6 However, their belief was not the result of any 

statements by Durbin that there was, in fact, such an emergency. Nor did any Durbin official 

intend to, or, take any actions to mislead or provoke Complainants in the manner in which they 

were called out of the mine. 

The real significance of the "home emergency" issue is its impact on the ensuing events. 

Complainants' feeling that they had been led, or allowed, to believe during the lengthy ride out of 

the mine that there was an emergency involving their families primed their reaction to being 

questioned about the pinner bits discovered in the truck. Their outrage at the search of the 

vehicle and implicit accusation of stealing company property resulted in an extremely hostile 

reaction to Newsome's inquiries. There was a very heated discussion, in which Complainants 

loudly cursed Newsome. Newsome, no doubt, reacted emotionally to Complainants' verbal 

assault. He noted that the Complainants would not be hired back on Durbin's records and gruffly 

told Mrs. Mahon the following day that he did not want them back on mine property. However, I 

credit his testimony and that of other witnesses to the discussion that he remained considerably 

more in control than the Complainants and was surprised by their reaction to his inquiry. I credit 

Newsome's testimony~that he did not fire the Complainants, which would have been inconsistent 

with Kirk's instructions to him and find that the Complainants quit their jobs in a fit of anger in 

reaction to the search of the truck and the inquiry about the pinner bits. 

The Secretary argues that a March 16, 1999, letter to Mahon relative to continuation of 

his health benefits and citing a "Qualifying Event Date of 02/28/99" evidences an intent by 

Durbin to terminate his employment that preceded the March 2, 1999 incident. The Secretary 

contends, in essence, that Durbin had determined to discharge Complainants on or prior to 

February 28, 1999, and that the events of March 2, 1999, were carefully scripted to result in the 

6 Their mother had been in a serious automobile accident previously. Although it 

appears that she had largely recovered from her injuries by that time, her health apparently was a 

concern and was an issue that would have affected both men. 

752 
termination of their employment. This is far too great a leap to make from such a precarious 

platform. There was no evidence establishing where Black Mineral, the entity that wrote the 

letter, got the information it used to prepare the letter, what that information was, or whether it 

had any connection to Durbin. 

The Secretary also questions the legitimacy of Durbin's concerns about pinner bit 

expenditures and suspicion that bits were being stolen. While it is correct that per-ton costs of 

continuous miner bits were, at least in one report, grouped with pinner bit costs and miner bit 

costs would be significantly higher, there is virtually no dispute that Durbin had been 

experiencing losses, or thefts, of equipment and supplies, such as pinner bits. Even Mahon was 

aware that there had been problems with thefts of supplies. I credit that testimony and the 

testimony of Durbin officials and Mollette that they were concerned about thefts and pinner bit 

expenditures and had taken steps to more closely control and monitor bit usage. 

Constructive Discharge 

Complainants alternatively argue that they suffered adverse action in that they were 

constructively discharged. As explained in Dolan, supra, 22 FMSHRC at 176-77: 

A constructive discharge is proven when a miner engaged in protected 

activity shows that an operator created or maintained conditions so intolerable that 

a reasonable miner would have felt compelled to resign. See, e.g., Simpson v. 

FMSHRC, 842 F.2d 453, 461-63 (D.C.Cir. 1988). * * * It is the operator's failure 

to reasonably remedy such conditions that converts the resignation into an adverse 

action. See Secretary of Labor on behalf of Nantz v. Nally & Hamilton Enters., 

Inc., 16 FMSHRC 2208, 2210-13 (Nov. 1994) (affirming conclusion of 

constructive discharge in the absence of finding that operator deliberately created 

intolerable conditions to provoke miner's resignation). The question whether 

conditions are intolerable is "viewed from the perspective of a reasonable 

employee alleging such conditions." Secretary of Labor on behalf of Bowling v. 

Mountain Top Trucking Co. , 21FMSHRC265, 276 (Mar. 1999), [aff'd, 230 F.3d 

1358 (6th Cir. 2000) (table)]. * * * * 

In cases involving claims of constructive discharge, the Commission has 

first examined whether the miner engaged in a protected work refusal, and then 

whether the conditions faced by the miner constituted intolerable conditions. See 

Bowling, 21 FMSHRC at 272-81; Nantz, 16 FMSHRC at 2210-13. ****In 

order to be protected, work refusals must be based upon the miner's "good faith, 

reasonable belief in a hazardous condition." Robinette, 3 FMSHRC at 812; accord 

Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C.Cir. 1989). A good faith belief 

"simply means honest belief that a hazard exists." Robinette, 3 FMSHRC at 810. 

Consistent with the requirement that the complainant establish a good faith, 

reasonable belief in a hazard, "a miner refusing work should ordinarily 

753 
communicate, or at least attempt to communicate, to some representative of the 

operator his belief in the safety or health hazard at issue." Sec '.Y of Labor on 

behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 133 (Feb. 1982). 

Once it is determined that a miner has expressed a good faith, reasonable 

concern about safety, the analysis shifts to an evaluation of whether the operator 

addressed the miner's concern "in a way that his fears reasonably should have 

been quelled." Gilbert, 866 F.2d at 1441; see also Secretary of Labor on behalf of 

Bush v. Union Carbide Co., 5 FMSHRC 993, 998-99 (June 1983); Thurman v. 

Queen Anne Coal Co., 10 FMSHRC 131, 135 (Feb. 1988), aff'd mem., 866 F.2d 

431 (61h Cir. 1989). A miner's continuing refusal to work may be deemed 

unreasonable after an operator has taken reasonable steps to dissipate fears or 

ensure the safety of the challenged task or condition. See Bush, 5 FMSHRC at 

998-99. 

Complainants' constructive discharge argument does not conform to this analytical 

framework, either legally or factually. The Secretary does not argue that the Complainants 

engaged in a protected work refusal, perhaps because none of the incidents prior to March 2, 

1999, either individually or collectively, posed any safety or health hazard. The Complainants 

did not feel that they were subjected to a safety or health hazard and did not even perceive any 

significant objectionable condition in their employment. Obviously, they did not communicate 

any such concern to Durbin. The incident that precipitated their departure from Durbin, the 

questioning about pinner bits, likewise cannot be characterized as a safety or health hazard that 

would have justified a work refusal. 

The Secretary argues that the totality of the conditions amounted to intolerable conditions 

such that Complainants "could not return to their jobs with any dignity."7 The totality of 

conditions includes; as to Mahon, the incident of his pliers being taped, the word "rat" written on 

his belt and the incident where Newsome supposedly slammed a door after hearing him joke 

about being a rat; as to Jenkins, the comment that one of the "two Billy's" was making the 

complaints; and, as to ooth, the inquiry about the pinner bits. The Secretary contends that all of 

these conditions were-the product of a suspicion that Complainants' had engaged in protected 

activity. 

7 Secretary's Post Hearing Brief, at p. 20. 

754 
As noted above, none of the "conditions" that preceded the March 2, 1999 incident were 

viewed as intolerable, or even objectionable, by Complainants and they would not have been so 

viewed by a reasonable employee. Nor could the events of March 2, 1999, be viewed as 

intolerable working conditions by a reasonable employee, either standing alone or in combination 

with prior events. Durbin was rightly concerned about missing and stolen property and had a 

reasonable basis to call Complainants out of the mine and question them. Whether they could 

have remained at their jobs "with dignity" is not the test. They were not unreasonably subjected 

to a safety or health hazard. Nor were they subjected to conditions so intolerable that a 

reasonable miner would have felt compelled to resign. Moreover, as with the discharge 

allegation, I find that the conditions that Complainants allege prompted them to leave their 

employment were not, in any part, the result of unlawful motivation by Durbin, i.e., they were not 

the result of any suspicion or knowledge that either Complainant had engaged in protected 

activity. 

Complaints. of discrimination under Moses alleging constructive discharge do not fit 

nicely into the analytical framework described in Dolan. It is possible that the Commission 

would sustain a discrimination allegation where an operator, motivated by a suspicion that a 

miner had engaged in protected actiVity, created objectively intolerable working conditions that 

did not involve subjecting him to a safety or health hazard. This is clearly not such a case. 

The Bounty or Reward Statement 

The Secretary additionally contends that Newsome's statement that he would give $1,000 

to know who was making the code-a-phone complaints was, in itself, discrimination in violation 

of the Act. The Secretary posits two theories for this contention; 1) that the statement amounted 

to a policy ofDurbin's that was "facially discriminatory," relying on Swift v. Consolidation Coal, 

Co., 16 FMSHRC 201 (Feb. 1994); and, 2) that the statement was discriminatory under the 

traditional Pasula-Robinette test. I find that the Swift analysis is inapplicable here in that 

Newsome's statement was not a policy or program ofDurbin's. More significantly, there was no 

adverse action attributable to the statement. 

Under Swift, in order to establish that a business policy is discriminatory on its face, "a 

complainant must show that the explicit terms of the policy, apart from motivation or any 

particular application, plainly interfere with Mine Act rights or discriminate against a protected 

class." Swift, 16 FMSHRC at 206. If a miner can establish that he suffered adverse action 

because of a facially discriminatory policy, he will prevail in a discrimination action under the 

Act, because "an operator may not raise as a defense lack of discriminatory motivation or valid 

business purpose in instituting the policy." Id. 

755 
Swift and similar "facially discriminatory'' cases8 deal with formal policies or programs 

implemented by an operator that did not directly target protected activity. Whether that 

precedent applies to an isolated verbal statement like that at issue here is questionable. If such a 

statement was construed as a serious attempt to learn the identity of a miner making confidential 

complaints of safety or health violations, an operator responsible for it could hardly contest the 

unlawfulness of the motivation or advance a valid business purpose for it. There would appear to 

be no need to extend the "facially discriminatory'' theory of liability, with its elimination of 

defenses, to situations that do not involve formal employment policies. The traditional PasulaRobinette analysis, which the Secretary advances here, should provide an adequate remedy for a 

discrimination claimant who has suffered adverse action in such circumstances. 

The Secretary argues that because Newsome was superintendent of the mine, that his 

statement should be construed as a Durbin policy and since it is facially discriminatory that 

Newsome's "intention is irrelevant," that "such a statement is inherently designed to chill" the 

exercise of Mine Act rights and that the "result of making such a statement is predictable and 

foreseeable."9 This argument fails for several reasons. 

Assuming that Newsome could make policy for Durbin, he had no such intention when he 

made the "off-the-cuff' remark and there is no direct evidence that anyone who heard the 

comment, or heard about it, took it seriously or viewed it in the remotest sense as a policy of 

Durbin's. Newsome's intention is relevant to the analysis. While lack of discriminatory motive 

is not a defense to an action premised upon a facially discriminatory policy, Newsome's intent in 

making the statement, as well as the manner and circumstances under which the statement was 

made, are relevant to determining whether it constituted a facially discriminatory policy and 

whether it resulted in any adverse action. Newsome testified that, ifhe did make such a 

statement, it was not serious and was made as an off-the-cuff remark. No other witness to the 

statement testified. The Secretary's argument concerning the statement is relegated to 

assessment of the demeanor of one individual, who also did not testify, who told other witnesses 

about the statement. 10 As noted above, there is no evidence that the comment was made other 

than in jest or that it was pursued or even widely circulated. I find that the comment, while 

8 See Sec '.Y on behalf of Price v. Jim Walter Resources, Inc., 12 FMSHRC 1521 

(Aug. 1990); UMWA v. Consolidation Coal Co., 1FMSHRC338 (May 1979). 

9 Secretary's Post Hearing Brief, at 37-38. 

10 Billy Williams testified that Stephen Ellis told him about the statement and that 

Ellis, in the opinion of Williams, appeared to take the statement seriously, although it was related 

in an unemotional, conversational manner. Williams expressed surprise and stated that he didn't 

believe that Durbin was so desperate to pay money to find out who was making the complaints. 

Jenkins testified that Ellis told him about a $500 offer and that he appeared to have taken the 

statement seriously. Jenkins, himself "laughed it off." In a statement given to MSHA, Ellis 

denied any knowledge of a reward or bounty from the company to find out who called MSHA. 

756 
made, was no more than an off-hand remark prompted by frustration with what was perceived as 

a persistent pattern of groundless complaints resulting in disruptive inspections. It was not an 

employment policy of Durbin's. · 

The Secretary's adverse action assertions related to the statement are somewhat 

confusing. Her facially discriminatory argument does not directly allege adverse action, 

suggesting that she can prevail even in the absence of adverse action. Her Pasula-Robinette 

argument is based upon adverse action suffered by a protected class of miners, i.e., the presumed 

chilling effect on their right to make safety and health complaints. Her focus is on the two 

Complainants here. The First Amended Complaint, as amended by Order dated March 8, 2001, 

prays for a civil penalty "in the amount of $3,000.00 per occurrence, per victim of 

discrimination, for a total of $12,000.00," i.e., $3,000.00 for the discrimination suffered by 

Jenkins and Mahon related to their alleged discharge and $3,000.00 as to Jenkins and Mahon 

related to the "reward" offer. However, there is no evidence that Jenkins or Mahon, or any other 

miner, suffered adverse action or felt that his rights under the Act were interfered with because of 

the statement. 11 Jen.kins did not take the statement seriously when he was told about it. Mahon 

did not testify about the statement and apparently never heard about it. In the absence of adverse 

action, an essential element of a discrimination claimant's cas·e, Complainants cannot prevail. 

Dolan, supra. 

ORDER 

Complainants suffered no adverse action. They were not discharged either affirmatively 

or constructively. They suffered no adverse action as a result ofNewsome's off-the-cuff 

comment. The complaint of discrimination cannot be sustained. Accordingly, the complaint is 

hereby DISMISSED. 

11 Such comments are not to be condoned, because they could result in a chilling of 

miners' rights to make legitimate safety complaints if made in a manner and under circumstances 

suggesting a serious intent to discover the identity of miners making legitimate confidential 

complaints. There is also a danger that, even if obviously made in jest, such a comment could be 

taken seriously by a miner hearing about it second or third hand. Here, Newsome's comment 

was not intended to, and did not, have a chilling effect on the rights of miners. 

757 
Distribution: 

M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Blvd., Suite 516, Arlington, VA 22203 (Certified Mail) 

David J. Farber, Esq., Alexandra V. Butler, Esq., Patton Boggs, LLP, 2550 M Street, NW, 

Washington, D.C. 20037 (Certified Mail) 

/mh 

758. 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, LLC, 

Respondent 

July 26, 2001 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2000-245-M 

A.C. No. 01-00851-04087 

Oak Grove Mine 

DECISION 

Appearances: Terry G. Gaither, Conference and Litigation Representative, U. S. Department of 

Labor, Birmingham, Alabama, on behalf of Petitioner; 

S. Andrew Scharfenberg, Esq., Ford & Harrison, LLP, Birmingham, Alabama 

on behalf of Respondent. 

Before: Judge Zielinski 

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary 

of Labor against U.S. Steel Mining Co., LLC, pursuant to section 105 of the Federal Mine Safety 

and Health Act of 1977 (the "Act"). 30 U.S.C. § 815. The petition alleges a single violation of 

the Secretary's mandatory health and safety standards and proposes a civil penalty of $242.00. A 

hearing was held in Hoover, Alabama on June 15, 2001. For the reasons set forth below, I vacate 

the citation and dismiss the petition. 

Findings of Fact 

On June 5, 2000, Jacky H. Shubert, an inspector for the Secretary's Mine Safety and 

Health Administration (MSHA), conducted an inspection of U.S. Steel's Oak Grove Mine. He 

was accompanied by James Bell, an elected union safety representative. Shubert issued Citation 

No. 7667878 for what he perceived to be a violation of 30 C.F.R. § 75.220(a)(l), which requires 

that operators comply with their approved roof control plans. He described the alleged violation 

as follows: 

The current roof control plan is not being complied with, in that the cribs in the 

tail gate entry of the long wall were not installed properly [--] none of the cribs 

were capped tightly against the roof. 

759 
Respondent's roof control plan, which had been approved by MSHA, included the 

following provisions for roof control relative to the longwall mining operation: 

Hydraulic jacks, timbers, or cribs shall be installed on a maximum spacing of 5' 

centers on the operator side of the head gate entry for a distance of 30' from the 

face in the direction of the longwall advance. Tail gate support shall consist of a 

minimum of one row of cribs positioned at maximum intervals of 7' between 

cribs. "Can-type" cribs may be installed in lieu of conventional cribs with 

maximum spacing between cribs to be 10 feet. These supports shall be installed 

the entire length of the tailgate entry, not to extend beyond the recovery area, in 

the panel presently being mined. These supports are to be maintained even with 

the working face in the tailgate entry for the subsequent panel. 

Tailgate and head gate entries, some 8,000 to 12,000 feet in length, are originally created 

by a continuous miner machine and conventional roof supports, i.e., roof bolts, are installed as 

the primary means of roof support. Cribs provide supplemental roof support. While there are 

several types of cribs, conventional cribs are typically made of rough-cut lumber, 6" by 6" by 30" 

long. The members are stacked in layers of two, at 90 degree angles, or crosswise, until the stack 

reaches the roof of the entry. The stack is generally "capped" with a two inch thick board and 

wedges are driven to fit the crib tightly against the roof. The additional support provided by cribs 

helps prevent the roof from sagging and deteriorating. It also helps to prevent deterioration and 

rolling of the ribs, i.e., portions of the wall of the entry breaking off and falling into the entry. As 

the wood dries, it typically shrinks, which can cause the cribs to loosen. They are tightened again 

by driving the wedges in further and/or adding more material. Respondent contends that there is 

no requirement in its roof control plan that cribs, initially properly installed, be subsequently 

maintained tight against the roof. However, any logical construction of the plan would require 

that the cribs be properly installed and maintained tight against the roof. In the words of the 

inspector, if the cribs are not tight against the roof, they are not providing roof support and are 

little more than stacks of lumber interfering with ventilation and travel through the entry. 

The supplemental roof support provided by the cribs is especially important in the first 

100 feet "outby," i.e.; in the direction of the advancing longwall. As the longwall mining 

machine advances, the unsupported roofleft behind in the gob area is allowed to fall. MSHA's 

field office supervisor, Kenneth Ely, explained that the forces generated by the falling roof are 

often transferred forward to the area in front of the long wall machine, especially in the first 30-

100 feet. Beyond 100 feet in front of the advancing long wall, the tailgate entry is like any other 

entry and the primary roof support, roof bolts, provide adequate support. The requirement for 

tailgate entry cribs in the roof control plan is, then, that there be a single row of cribs installed at 

minimum spacing of 7' from where the long wall operation began through 100 feet in front of the 

advancing long wall. Although the plan states that cribs are required for the entire length of the 

tailgate entry, the absence of cribs further than 100 feet in front of the advancing long wall would 

not be considered a violation of the plan. 

760 
Inspector Shubert testified that as he walked the approximate 7,000 foot length of the 

tailgate entry, from the longwall to the main entry, he observed that the maj9rity of the cribs were 

not capped tight against the roof. Respondent actually installs two rows of cribs on 5-7 foot 

spacings -- at least twice as many as required by its roof control plan. Shubert passed by and had 

an opportunity to observe each of the approximately 2,000 cribs in the tailgate entry that he 

inspected. Some had cap boards and wedges, some didn't. There were gaps as much as 3 to 6 

inches between the cribs and the roof. He observed deterioration in the roof and sloughing of 

material from the ribs. He stated that he would see where a rib had rolled for about 20 feet, 

would proceed another 50 feet and see another rib roll that had knocked over a couple of cribs. 

He recalled that the objectionable condition of the roof was more severe in the first 150 feet of 

the entry, the rest was not as bad. He did not note the specific location of the ineffective cribs or 

the places were the rib had rolled and knocked over the cribs, which he estimated would have 

taken six to eight pages to describe. Consequently, he just cited the whole area. He talked to 

Bell about the cribs and advised him that he was going to issue a citation. His field notes refer to 

cribs not being tightly capped against the roof, deterioration of the roof and rib rolls, but do not 

specify the number or location of the objectionable conditions. 

Bell testified that he checked the cribs within the first 100-150 feet of the tailgate entry 

and they were properly installed, were tightly capped against the roof and there was no roof 

deterioration. He had inspected the tailgate entry less than a month before, noticed some loose 

cribs, and they had been tightened. He acknowledged that there were some loose cribs, which 

surprised him because of the recent tightening, but that they were not within 100-150 fe.et of the 

longwall. He also acknowledged that there were some cribs knocked down at the #19 crosscut 

due to a rib roll, but that was some 2,000 feet away from the longwall, and the area had been 

"dangered off', i.e., marked to forbid miners from entering the area. Shubert discussed the cribs 

with him but not until they had reached the main entry 

Conclusions of Law - Further Factual Findings 

In an enforcement proceeding under the Act, the Secretary has the burden of proving an 

alleged violation by a preponderance of the evidence. In re: Contests of Respirable Dust Sample 

Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd., Secretary of Labor v. 

Keystone Coal Mining Corp., 151F.3d1096 (D.C.Cir. 1998); ASARCO Mining Co., 

15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 

(Nov. 1989); Jim Walter Resources Inc., 9 FMSHRC 903, 907(May1987). 

In order to establish the alleged violation, the Secretary must prove that there was not at 

least one properly installed crib every 7 feet in the first 100 feet of the tailgate entry. Improperly 

installed or missing cribs in the remainder of the entry, at that time 7,000 feet in length, would 

not violate the roof control plan. Because Respondent installed two rows of cribs, twice as many 

as required by the roof control plan, the Secretary cannot establish a violation by simply proving 

that some cribs within the critical first 100 feet of the entry were not tightly capped against the 

roof. With two rows of cribs on 7 foot centers, some 28 cribs would have been installed in the 

761 
first 100 feet of the entry. The roof control plan requires only one row of cribs, at most 14.1 

Consequently, up to 14 of the 28 cribs could be improperly installed or knocked over without 

violating the roof control plan. It was incumbent upon the Secretary, therefore, to prove that 

either there were no properly installed cribs in that area or that the cribs that were properly 

installed did not satisfy the requirement of the plan. The Secretary did not introduce any 

evidence as to the specific locations of improperly installed cribs in the first 100 feet of the entry. 

Consequently, in order to prevail, the Secretary must prove that there were no properly installed 

cribs in that area. This she failed to do. 

Although Inspector Shubert noted in the citation that all of the cribs in the tailgate entry 

were loose, his testimony was more equivocal. He testified that some cribs had been properly 

installed and at least tacitly admitted that some were tight to the roof. He also testified that the 

rib roll and loose cribs were in the 100-150 feet of the tailgate entry closest to the longwall. 

However, his field notes are silent as to the location of those deficiencies. According to Bell, he 

and Shubert did not discuss their observations until they had exited the entry and there is no 

indication as to when Shubert recorded his observations, but he likely did so after leaving the 

entry. Accepting Bell's testimony, in part, which is largely consistent with Shubert's, I find that 

there were loose cribs throughout the tailgate entry, including the critical 100 feet closest to the 

advancing longwall. However, there were also properly installed and maintained cribs in the 

entry, including the critical 100 foot zone. The rib rolls and knocked over cribs were not in that 

area, but were in the area of the 19th crosscut. 

While the Secretary presented evidence sufficient to support a finding that there were 

some loose, improperly installed, cribs in the first 100 feet of the tailgate entry, she failed to 

prove that all of the cribs in that area were deficient. She did not present evidence of the specific 

locations of improperly installed cribs and, consequently, failed to establish that the cribs that 

were properly installed did not satisfy the requirements of Respondent's roof control plan. 

ORDER 

Based upon the foregoing, Citation Number 7667878 is VACATED, and the petition is 

DISMISSED. 

The plan specifies that there be no more than "7' between cribs." If measured 

from the edges of the cribs, there would be one crib required every 9.5 feet, or approximately 10 

cribs per 100 feet. 

762 
Distribution: 

Terry G. Gaither, Conference and Litigation Representative, U.S. Department of Labor, Mine 

Safety and Health Administration, 135 Gemini Circle, Suite 213, Birmingham, AL 35209 

(Certified Mail) 

Anthony F. Jeselnik, Esq., U.S. Steel, Law Dept., USX Tower, Fifteenth Floor, 600 Grant St., 

Pittsburgh, PA 15219-2749 (Certified Mail) 

S. Andrew Scharfenberg, Esq., Ford & Harrison, LLP., 505 N. 201h Street, Suite 1201, 

Birmingham, AL 35203 (Certified Mail) 

/mh 

763 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

July 26, 2001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CNIL PENALTY PROCEEDING 

Docket No. WEST 2000-474-M 

A.C. No. 26-01977-05528 

v. 

Royal Cement 

ROY AL CEMENT COMP ANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Steven R. DeSmith, Esq., Office of the Solicitor, U.S. Department of 

Labor, San Francisco, California, for Petitioner; 

Patricia D. Ceron, Esq., Logandale, Nevada, for Respondent. 

Judge Manning 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Royal 

Cement Company, Inc., ("Royal"), 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"). A hearing was held in Las 

Vegas, Nevada. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Royal operates..a quarry and cement plant (the "plant") in Clark County, Nevada. An 

accident occurred at the plant on July 1, 1999, that killed Robert Dotts, an electrician. The plant 

was not operating at the time and had been shut down for about 17 months. The plant was being 

rebuilt and modernized at the time of the accident. Mr. Dotts was in the process of replacing a 

transformer when he was electrocuted. 

At the conclusion ofMSHA's investigation of the accident, MSHA Inspector John 

Widows issued Citation No. 4394965 under section 104(a) of the Mine Act alleging a violation 

of30 C.F.R. § 56.14100(b). The condition or practice section of the citation states: 

A fatal accident occurred at this mill on July 1, 1999, when a 

contractor electrician was electrocuted when he contacted an 

energized 4160 volt cable inside the crusher and finish grinding 

transformer. The flicker switches (knife blades) in the interrupter 

764 
switches for the transformer were defective in that they did not 

open when the switch was tripped due to an accumulation of dust 

and dirt. With the switches stuck in the closed position, power was 

inadvertently supplied to the 4160 volt transformer. 

In the citation, Inspector Widows determined that the violation was of a significant and 

substantial nature ("S&S"), was serious, and that Royal's negligence was moderate. The 

Secretary proposes a penalty of $25,000 for this violation under her special assessment regulation 

at 30 C.F.R. § 100.5. The safety standard provides, as follows: 

Defects on any equipment, machinery, and tools that affect safety 

shall be corrected in a timely manner to prevent the creation of a 

hazard to persons. 

Royal was started by Aldo DiNardo in the late 1980s. Mr. DiNardo bought a used cement 

plant, had it transported to Nevada, and set it up in the Logandale area, which is about 60 miles 

from Las Vegas. Mr. Dotts was associated with Royal for a considerable length of time. He was 

first hired in 1990 to.work under another electrician. When that electrician was terminated, Dotts 

became the electrical ~u ervisor at the plant. Because Mr. DiNardo had little knowledge of 

electrical systems, he relied on Mr. Dotts to perform all electrical services and to keep him 

informed of any electrical problems. (Tr. 64-65, 81-82, 88). Although Mr. Dotts performed 

some of the electrical work himself, he also supervised other Royal employees who performed 

electrical work under his direction. 

At some point in time, Dotts asked DiNardo if his status could be changed from a Royal 

employee to an independent contractor. Dotts apparently made this request because of tax 

problems and because he wanted to be able to do electrical work for others. (Tr. 62-63). 

DiNardo testified that Dotts basically put this request in the form of an ultimatum that he would 

quit ifhe could not become an independent contractor for Royal. DiNardo granted Dotts' request 

in spite of the fact that it cost Royal more money because he believed that Dotts was a good 

electrician who was fami iar with the plant. As an independent contractor, Mr. Dotts worked 

under the name Dotts Electric. He lived in Las Vegas where DiNardo believes he did electrical 

work for others. The parties dispute when Mr. Dotts became an independent contractor. 

DiNardo testified that Dotts was an independent contractor by the mid l 990's, while the 

Secretary contends that this change occurred 12 to 18 months prior to the accident. 

In March 1998, DiNardo shut down the plant because it was losing money and he owed 

about $700,000 to creditors. (Tr. 69-70). He testified that Royal was too undercapitalized to be 

successful. DiNardo traveled to California to raise capital and also found three additional 

principals to invest in the plant. By the spring of 1999, DiNardo decided that he could reopen the 

plant with the objective of starting production in September 1999. Mr. Dotts was contacted to 

upgrade the electrical system at the plant. Other independent contractors provided services at the 

plant to get it back into production. 

765 
On July 1, 1999, Dotts was at the plant to install a new transformer for the crusher finish 

grinding circuits. He was working alone at the time of the accident but there were other people 

working at the plant. Based on the investigation conducted by MSHA, with the cooperation of 

Royal, it appears that the following events occurred, as set forth in MSHA's accident report. 

(Ex. P-3). Several weeks before the accident, Dotts opened (shut off) the circuit breaker for the 

transformer circuit and also opened the load interrupter switch for that same circuit. Dotts locked 

out the load intem1pter switch with his own lock, but did not lock out the circuit breaker. He 

then disconnected the leads from the old transformer. As a result of a power outage at the plant 

some days later, all of the circuit breakers tripped open. Dotts flipped them back to the closed 

(on) position once power was restored to the plant, including the circuit breaker for the 

transformer at issue in this case. 

Dotts was at the plant on July 1 to install the new transformer, which had arrived the day 

before. The transformer was rated at 4.16 KV - 480 V, 1000 KV A. Because the circuit breaker 

was closed, power was being supplied to the load interrupter switch for the transformer. This 

load interrupter switch, manufactured by Square D Electrical Company, is operated by pulling a 

large lever on the front of cabinet. When the lever is up, power is being supplied to the circuit. 

When the lever is down, power should be cut off At the time of the accident, the lever was · 

down and locked so that it could not be pulled up. This lever controls both the main electrical 

contacts and the arcing contacts inside the cabinet. Both the main and arcing contacts must be 

disengaged in order to shut off the power and both are controlled by the same lever. The arcing 

contacts are operated by a spring so that when the lever is pulled down a spring pulls the knife 

blades away from the contacts thereby disengaging the circuit. They are often called "flicker 

blades" because they flick out of the contacts when the lever is pulled. This feature is 

incorporated into the interrupter switch to prevent potentially hazardous arcing when opening and 

closing the circuit. One can look into the cabinet through a window on the front to see if these 

flicker blades have disengaged when the lever is pulled down. (Tr. 18-19, 26; Ex. P-15). 

When representatives from Royal and MSHA looked into the window on the cabinet of 

the load intcm1pter switch during MSHA's investigation, they discovered that the flicker blades 

were still engaged. Royal relied upon John Zeller, an engineer with the firm of Grove Madsen 

Industries, to provide technical assistance during the investigation. (Ex. P-17). The cabinet was 

opened and Mr. Zeller cleaned the flicker blades and contacts with an aerosol cleaner. (Tr. 48). 

After the blades were cleaned, the spring-operated flicker blade mechanism functioned properly. 

Because the plant had been shut down for about 17 months, dirt and grime had accumulated 

around the flicker blades which prevented them from working properly. In his report, Mr. Zeller 

stated that "[l]ack of maintenance and accumulations of dust and dirt will cause this type of 

anomaly in load switches of this type." (Ex. P-17). He recommended regular preventive 

maintenance and inspection of th~ switch. It appears that when Mr. Dotts pulled down and 

locked out the lever to shut off the power, he did not look through the window to make sure that 

the blades had "flicked out" and he had not cleaned the blades prior to removing the old 

transformer. When he removed the old transformer, power had also been shut off at the circuit 

breaker so Dotts was not endangered. Because Dotts had flipped on all of the circuit breakers 

766 
following the power outage, power was being supplied to the load interrupter switch on July 1. 

As the flicker blades were stuck in the closed position, power was being supplied to the bare 

electrical leads Dotts was going to connect to the new transformer. He was found lying 

motionless on the ground in front of the open transformer box at 6:55 am. It is the Secretary's 

position that it was the responsibility of Royal to make sure that the flicker blades were in proper 

working condition. (Tr. 12, 26). 

At the conclusion of the investigation, Inspector Widows issued the contested citation to 

Royal. He also issued a section 104(d)(l) citation to Dotts Electric charging a violation of 

section 56.12107 for Dotts' failure to lock out and tag out the circuit breaker. 

Royal makes a number of arguments in its trial brief. First, it maintains that it fully 

complied with the provisions of section 56.141 OO(b) by selecting the most qualified licensed 

electrician to perform the specialized electrical tasks necessary to safely reopen the plant. 

Although Mr. Dotts had been a Royal employee in the past, Dotts Electric was an independent 

contractor at the time of the accident. Royal maintains that it acted reasonably in relying on 

Dotts' expertise. Dotts was in complete control over all the electrical work necessary to restart 

the plant in September 1999. Royal believes that it would have been foolhardy for Mr. DiNardo 

or any other representative of Royal to "go behind" Mr. Dotts and supervise his work because 

Dotts knew more about it than DiNardo or other Royal employees. 

Royal states that MSHA violated its own enforcement guidelines for issuance of citations 

involving independent contractors. ill MSHA, U.S. Dep't of Labor, Program Policy Manual, 

Part 45. The MSHA guideline provides that enforcement action "against a production-operator 

for a violation involving an independent contractor is normally appropriate in any of the 

following situations: (1) when the production-operator has contributed by either an act or by an 

omission to the occurrence of a violation in the course of an independent contractor's work; 

(2) when the production-operator has contributed by either an act or omission to the continued 

existence of a violation committed by an independent contractor; (3) when the productionoperator's miners are exposed to the hazard; or (4) when the production-operator has control over 

the condition that needs abatement." Id. Royal contends that it does not fit into any of these 

categories because Dotts Electric was in control of the condition; Royal did not contribute to the 

violation; and Royal's employees were not exposed to the hazard. Royal maintains that Dotts 

Electric had the responsibility to inspect the flicker blades to ensure they were operating properly 

prior to doing electrical work on the circuit. As a consequence, it argues that Dotts Electric was 

solely responsible for the violation. 

MSHA's guidelines relied upon by Royal are not binding on the Secretary. Brock v. 

Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 536-538 (D.C. Cir. 1986). Production operators 

are strictly liable for the violations of their independent contractors. See Cyprus Indus. v. 

FMSHRC, 664 F.2d 1116, 1119-20 (9th Cir. 1981). Consequently, Royal's argument that it is not 

liable for the violation of section 56.141 OO(b) is rejected. 

767 
I find that the Secretary established a violation of section 56.141 OO(b ). A defect in the 

flicker blades was not corrected in a timely manner to prevent creation of a hazard to persons. 

The defect was that dust and dirt had been allowed to accumulate on the blades. This 

accumulation affected safety because it prevented the flicker blade switch from functioning 

properly. The flicker blades must disengage in order to shut off the power. Under the Mine Act, 

a production operator such as Royal is strictly liable for violations that occur at its facility. 

"(W]hen a violation of a mandatory safety standard occurs in a mine, the operator is 

automatically assessed a civil penalty." See, e.g. Asarco v. FMSHRC, 868 F.2d 1195, 1197 

( 101

h Cir. 1989). Although Mr. Dotts should have inspected and cleaned the flicker blades before 

commencing work, Royal bears some responsibility as the production operator. 

In the alternative, Royal argues that the Secretary should not have applied MSHA's 

special assessment regulations at 30 C.F.R. 100.5 when proposing a penalty in this case. It 

contends that, in doing so, the Secretary failed to properly consider the civil penalty criteria. The 

Secretary's penalty regulations are not binding on the Commission. Commission administrative 

law judges must assess an appropriate penalty de novo based on the six statutory criteria 

specified in section l lO(i) of the Mine Act. 30 U.S.C. § 820(i). Sellersburg Stone Co., 5 

FMSHRC 287, 291-92 (March 1983), aff'd 376 F.2d 1147, 1150-51 (7th Cir. 1984). I base the 

penalty in this case on the evidence presented at the evidentiary hearing not on the Secretary's 

Part 100 regulations. 

II. APPROPRIATE CIVIL PENAL TIES 

Section 1 lO(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. The Secretary submitted information concerning the history of 

violations at the plant but it included four citations issued more than 24 months prior to the fatal 

accident. I find that 16 citations were issued at the plant during the 24 months prior to the date of 

the accident. The Secretary presented information that the plant worked over 66,000 man-hours 

during 1999. That figure includes work performed during the months following the accident 

when the plant was in operation. I find that Royal was a small- to medium-sized operator. The 

violation was rapidly abated in good faith. The penalty assessed in this decision will not have an 

adverse effect on Royal's ability to continue in business. 

I find that the violation was serious and I affirm Inspector Widow's significant and 

substantial determination. I find that Royal's negligence was very low. I considered the 

evidence and arguments presented by Royal with respect to its relationship with Ml:: Dotts. 

Royal hired Dotts Electric based on its past experience with his work as a licensed eiectrician. It 

was reasonable for Royal to rely on Mr. Dotts's electrical expertise. It was also reasonable for 

Royal to believe that he would follow safe procedures, especially since he was the one who was 

personally exposed to the hazards presented by his work. I reject the Secretary's argument that 

Dotts was an independent contractor in name only. The fact that Dotts was once an employee 

and supervised Royal employees in performing electrical work prior to the March 1998 shutdown 

does not change the fact that on July 1, 1999, he was working as an independent contractor. The 

768 
Secretary does not dispute his independent contractor status. (Tr. 21-22; Ex. P-3). MSHA's 

reliance on Royal's safety rules on lockout procedures is not well taken because the contested 

citation does allege such a violation. (Tr. 26-27; Ex. P-16 p. 16). As an electrician, Mr. Dotts 

was in a position to know more about the operation of the flicker blades than Royal's employees. 

(See Tr. 17). Based on the penalty criteria, I find that a penalty of $5,000 is appropriate. The 

reduction in the penalty is based primarily on my finding that Royal's negligence was quite low. 

III. ORDER 

Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalty: 

Citation No. 30 C.F.R. § Penalty 

4394965 56.14100(b) $5,000.00 

Accordingly, Citation No. 4394965 is AFFIRMED, except that the degree of 

negligence is lowered from moderate to very low, and Royal Cement Company, Inc., is 

ORDERED TO PAY the Secretary of Labor the sum of$5,000.00 within 30 days of the date of 

this decision. Upon payment of the penalty, this proceeding is DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Judg 

Steven R. DeSmith, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St., 

Suite 1110, San Francisco, CA 94105-2999 (Certified Mail) 

Patricia D. Ceron, Esq., Royal Cement Co., P.O. Box 380, Logandale, NV 89021 (Certified 

Mail) 

RWM 

769 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

July 30, 2001 

KINDER MORGAN OPERATING LTD, 

Contestant 

CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION, (MSHA), 

Respondent 

Docket No. KENT 2001-264-R 

Citation No. 7641370/01; 2/26/2001 

Docket No. KENT 2001-265-R 

Citation No. 7641371/01 ;2/26/2001 

Docket No. KENT 2001-266-R 

Citation No. 7641372/01/02;2/26/2001 

Docket No. KENT 2001-267-R 

Citation No. 7641373/01;2/26/2001 

Docket No. KENT 2001-268-R 

Citation No. 7641374/01/02;2/26/2001 

Docket No. KENT 2001-269-R 

Citation No. 7641375/01;2/26/2001 

Docket No. KENT 2001-270-R 

Citation No. 9898588;2/8/2001 

Grand Rivers Terminal 

Mine ID 15-18234 

DISMISSAL ORDER 

These cases are before me on Notices of Contest under section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Secretary has moved to dismiss 

them has having been untimely filed. The Respondent opposes the motion. For the reasons set 

forth below, the motion is granted. 

Section 105( d) requires that a notice contesting the issuance of a citation must be filed 

within 30 days ofreceipt of the citation. In accordance with the Act, Commission Rule 20(b), 29 

C.F.R. § 2700.20(b), requires the same thing. The most recent of the seven citations in these 

cases was issued on February 26, 2001. Therefore, the notice of contest should have been filed 

by March 27, 2001. However, all of the notices of contest were filed on May 4, 2001. 

770 
While acknowledging that the notices of contest were not filed within the prescribed 

30 days, Kinder Morgan states that its on-site manager "inadvertently failed .to forward to 

Contestant's management staff or its counsel copies" of the citations and that the manager 

"subsequently" believed that the citations were included in a stay of other citations (not involved 

in these proceedings). (Resp. at 2-3.) Therefore, it requests that ~he late filing be excused. 

Unfortunately, as former Chief Judge Merlin has noted: "A long line of decisions going 

back to the Interior Board of Mine Operations Appeals holds that cases contesting the issuance of 

a citation must be brought within the statutor[il]y prescribed 30 days or be dismissed." M.A. 

Walker Co., Inc., 19 FMSHRC 897, 898 (May 1997) (citations omitted). Further, late filing has 

been permitted only when the delay was caused by MSHA's conduct. Id. 

Since there is no allegation that the delay was caused by MSHA, I am constrained to grant 

the Secretary's motion. Accordingly, it is ORDERED that the captioned cases are 

DISMISSED.' 

~~Administrative ~ Law Judge 

1 This dismissal will not prevent the Respondent from raising its jurisdictional challenge 

to these citations, since the issue can still be raised by contesting the civil penalties proposed for 

the citations. 29 C.F.R. § 2700.21. Indeed, the citation at issue in Docket No. KENT 2001-270-

R is already before me in Docket No. KENT 2001-281. 

771 
Distribution: 

Charles E. Allen, ill, Esq., Frost Brown Todd, LLC, 400 West Market Street, 32nd Floor, 

Louisville, KY 40202-3363 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones 

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

nt 

772 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 Skyline, Suite 1000 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EXCEL MINING LLC, 

Respondent 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

July 11, 2001 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2001-88 

A. C. No. 15-14324-03511 

Preparation Plant 

ORDER DENYING MOTION 

FOR PARTIAL SUMMARY DECISION 

This case is before me on a Petition for Assessment of Penalty under section 105( d) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The Respondent has filed a 

motion seeking summary decision on two of the three citations at issue in the case. The 

Secretary opposes the motion. For the reasons set forth below, the motion is denied. 

Commission Rule 67(b ), 29 C.F.R. § 2700.67(b ), provides that: "A motion for summary 

decision shall be granted only if the entire record, including the pleadings, depositions, answers 

to interrogatories, and affidavits, shows: (1) That there is no genuine issue as to any material 

fact; and (2) That the moving party is entitled to summary decision as a matter of law." The 

Commission has long held that: 

~ Summary decision is an extraordinary procedure. If used 

improperly it denies litigants their right to be heard. Under our 

rules, a party must move for summary decision and it may be 

entered only when there is no genuine issue as to any material f~ct 

and when the party in whose favor it is entered is entitled to it as a 

matter oflaw. 

Missouri Gravel Co., 3 FMSHRC 2470, 2471 (November 1981) (footnote omitted). It "is 

authorized only 'upon proper showings of the lack of a genuine, triable issue of material fact."' 

Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994) [quoting Celotex Corp. v. 

Catrett, 477 U.S. 317, 327 (1986)]. Here, the company has failed to show that there is no 

genuine issue as to any material fact. 

773 
Excel asserts that summary decision should be granted for Citation Nos. 7367802 and 

7367805. Citation No. 7367802 alleges a violation of section 77.210 of the Secretary's 

regulations, 30 C.F.R. § 77.210, because: 

Taglines or other devices were not used to guide a 

suspended load that required guidance during a material hoisting 

operation. While reaching out to guide a suspended chemical 

barrel from the open hoistway [sic] onto the third floor of the 

preparation plant, an employee fell approximately 55 feet to the 

ground, sustaining fatal injuries. 

Section 77.210 provides, in pertinent part, that: "( c) Taglines shall be attached to hoisted 

materials that require steadying or guidance." 

that: 

Citation No. 7367805 alleges a violation of section 77.1713(a), 30 C.F.R. § 77.l 713(a), in 

Inadequate daily inspections were conducted on the third 

floor of the preparation plant. The metal supports and other 

structural members of the railing surrounding the open material 

hoistway [sic] had corroded to the point that the railing was 

ineffective. Although daily on-shift inspections were conducted, 

the condition was not reported or corrected. 

Section 77.l 713(a) requires that: 

At least once during each working shift, or more often if 

necessary for safety, each active working area and each active 

working surface installation shall be examined by a certified person 

designated by the operator to conduct such examinations for 

hazardous conditions and any hazardous conditions noted during 

such examinations shall be reported to the operator and shall be 

corrected by the operator. 

With respect to Citation No. 7367802, the company argues that no violation can be 

proved because the regulation only requires taglines "when hoisted materials require guidance or 

steadying and ... there is no evidence that the load in question required guidance or steadying." 

(Motion at 8.) On the other hand, the Secretary asserts that the facts available to her, as attested 

to in the declaration of Robert Bates, "establish that a tagline was necessary to steady or guide 

the barrel in question so that the employee would not put himself in a position of peril as 

happened in this accident." (Response at 4.) I find from the evidence apparently available to the 

Secretary that there clearly is a material question of fact as to whether a tagline was necessary in 

this case. 

774 
Turning to Citation No. 7367802, Excel agrees that "if an examination is required, it must 

be accomplished in a manner that would reveal hazards that would be discemable to a reasonably 

prudent miner who is looking out for the safety of his fellow works and himself." (Motion at 11-

12.) However, it maintains that "it was not reasonable to expect an on-shift examiner to see the 

corrosion that MSHA concluded was the cause of the accident." (Motion at 12.) I find that 

whether it was reasonable to expect the on-shift examiner to see the corrosion and whether the 

examination was carried out in a reasonably prudent manner are material questions of fact which 

must be decided in this case. 

Accordingly, the Motion for Partial Summary Decision is DENIED. Counsel for the 

Secretary shall initiate a telephone conference call with the Respondent's counsel and the judge, 

at any time convenient to the parties, but not later than July 19, 2001, for the purpose of setting a 

hearing date. 

Distribution: (Certified Mail) 

i~/fa- Administrative Law Judge 

(703) 756-6213 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones 

Road, Suite B-201, Nashville, TN 37215 

Timothy M. Biddle, Esq., Crowell & Moring, LLP, 1001 Pennsylvania Avenue, N.W., 

Washington, DC 20004-2595 

Int 

775 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 Skyline, Suite 1000 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

HARD ROCK MINING COMPANY, 

OF OLYMPIA, INC., 

Respondent 

July 11 , 2001 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2000-306-M 

A. C. No. 45-03212-05518 

Docket No. WEST 2000-307-M 

A.C. No. 45-03212-05519 

Docket No. WEST 2000-308-M 

A.C. No. 45-03212-05520 

Docket No. WEST 2000-458-M 

A.C. No. 45-03212-05521 

Docket No. WEST 2000-500-M 

A.C. No. 45-03212-05522 

Docket No. WEST 2000-577-M 

A.C. No. 45-03212-05523 

Hard Rock Pit 

ORDER TO SHOW CAUSE 

These cases are before me on Petitions for Assessment of Civil Penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Proceedings in 

the cases are currently stayed. 1 The Secretary has now filed a motion requesting that the stays be 

lifted and the cases set for hearing. In his motion, however, counsel for the Secretary notes that 

he has not been able to contact the Respondent by telephone and that the last letter he sent to the 

Respondent by certified mail was returned "unclaimed." Attempts by this office to set up a 

telephone conference call for the purpose of setting a hearing date have met with the same 

results. 

1 Docket Nos. WEST 2000-306-M, WEST 2000-307-M and WEST 2000-308-M have 

been on stay since August 23, 2000. Docket No. WEST 2000-458-M has been on stay since 

August 24, 2000. Docket No. WEST 2000-500-M has been on stay since October 20, 2000, and 

Docket No. WEST 2000-577-M has been stayed since March 27, 2001. 

776 
Permission was granted for Respondent's counsel to withdraw from the case on October 

20, 2000. A copy of the order granting permission was sent to David F. Lapp, President, Hard 

Rock Mining Co., at the company's address of record and a green, "return receipt" card signed by 

what appears to be a "Karla Davis" was received back. Since that time, however, no return 

receipt cards have been received back from mail sent to the Hard Rock address of record. On the 

other hand, the March 27, 2001, order canceling the hearing and staying the proceedings in 

Docket No. WEST 2000-577-M was sent to Rosemary M. Short, Book.keeper, Hard Rock Mining 

Co., in Tumwater, Washington, and the return receipt card, signed by "D. Lapp," was received 

back.

2 

At a minimwn, Hard Rock has not complied with Commission Rule 5(c), 29 C.F.R. 

§ 2700.5( c ), which requires, among other things, that: "Written notice of any change in address 

or telephone number shall be given promptly to the Commission or the Judge and all other 

parties." In addition, counsel for the Secretary stated in a December 28, 2000, pleading that he 

had been advised by Hard Rock's former counsel that both Lapp and the company had filed for 

bankruptcy. 

Since Hard Rock has not kept either the Commission or the Secretary apprized of its 

status, it is not clear what the company's position is with regard to these proceedings, or even if 

the company still exists.3 Accordingly, Hard Rock Mining Company of Olympia, Inc., is 

ORDERED TO SHOW CAUSE, within 21 days of the date of this order, why it should not be 

held in default in these proceedings and ordered to pay penalties in the amount of $35,3 14.00 for 

failure to prosecute its cases. Hard Rock may respond to this order by providing both the 

Secretary and the Commission with an address and a telephone number at which it can be 

contacted. Failure to r espond to this order will result in the company being held in default 

and ordered to pay the $35,314.00 in proposed penalties in these cases. 

'1Administrative ~~ Law Judge 

(703) 756-6213 

2 This address was not provided by the company. 

3 Telephone inquiries by this office seeking a telephone nwnber for the company in both 

Olympia and Tumwater were met with the statement that there was no listing for the company. 

777 
Distribution: (Certified Mail) (regular mail) 

Matthew L. Vandal, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third 

Avenue, Suite 945, Seattle, WA 98101-3212 

David F. Lapp, President, Hard Rock Mining Company, 10145 Littlerock Road SW, Olympia, 

WA 98512 

Rosemary M. Short, Bookkeeper, Hard Rock Mining Company, 2827 291

h Avenue SW, 

Tumwater, WA 98512 

nt 

778 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASARCO INCORPORATED, 

Respondent 

DENVER, CO 80204-3582 

303-844-3577 /FAX 303-844-5268 

July 25, 2001 

CNIL PENALTY PROCEEDINGS 

Docket No. WEST 2001-123-M 

A.C. No. 02-00150-05594 

Docket No. WEST 2001-237-M 

A.C. No. 02-00150-05595 

Asarco Ray Complex 

ORDER DENYING ASARCO'S MOTION TO DISMISS 

Asarco Incorporated filed a motion to dismiss these cases "for lack of subject matter 

jurisdiction, or in the alternative, ... for failure to state a claim upon which relief may be 

granted .... " It states that the cases involve two citation/orders issued pursuant to sections 

104(a) and 107(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. 

("Mine Act"). Each 104(a) citation includes a 107(a) imminent danger order in the same 

document. Asarco bases its motion on the fact that "the Proposed Assessment of Penalty and the 

Petition for Assessment of Penalty for each citation/order only requests an assessment of penalty 

for the 107(a) component of each citation/order." (A. Motion 1 ). Asarco argues that under the 

Mine Act, the Secretary does not have the authority to assess penalties for imminent danger 

orders issued under section 107(a). It concludes that the Commission is without jurisdiction to 

hear these cases. In the alternative, Asarco argues that the Secretary's Petition for Assessment of 

Penalty fails to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6). 

The Secretary opposes Asarco's motion. 

Asarco bases its motion on the forms sent to it by the Secretary. The Secretary's 

proposed penalty assessment, served under 29 C.F.R. § 2700.25, consists of a computer printout 

listing the citations and orders included within each of her assessment control.numbers. This 

form includes a number of columns including ones entitled "Citation or Order Number," "Type 

of Action," "Health or Safety Standard Violated: CFR Title 30," and "Proposed Penalty." In the 

case of WEST 2001-123-M, for example, the citation/order number is "7934757," the type of 

action is "107 A O," the standard allegedly violated is "56.3131," and the proposed penalty is 

$486.00." Accordingly, Asarco argues that the Secretary is improperly attempting to assess a 

penalty for a section 107(a) imminent danger order. 

In addition, the Secretary's petition for assessment of penalty, served under 29 C.F.R 

§ 2700.28, contains a similar computer printout labeled "Exhibit A" which includes the same 

779 
information as the proposed penalty assessment. Under the column ''T)'pe of Action" the 

Secretary inserted "107A O." In WEST 2001-237-M, the proposed penalty was specially 

assessed by the Secretary under 30 C.F.R. § 100.5. In a document entitled ''Narrative Findings 

for a Special Assessment" that was included with the petition for assessment of penalty, the 

Secretary included the following paragraph: 

On August 15, 2000, MSHA issued a section 107(a) order 

7934 772 at Asarco Ray Complex Mine. Asarco, Incorporated, was 

cited for a violation of 30 CFR 56.1313. 

This document does not state that a citation issued under section 104( a). Asarco states that 

"there is no section of the Mine Act which provides for the assessment of a penalty for a 

violation of section 107(a) .... " (A. Motion 5). Asarco maintains that the Mine Act clearly 

provides that penalties may only be assessed for citations and orders issued under section 104. It 

contends that this requirement is "more than window dressing" and must be adhered to by the 

Secretary. (A. Motion .3). 

The Secretary does not deny that penalties cannot be assessed under section 107(a) of the 

Mine Act. She argues that it is quite clear that she was assessing the penalties for the section 

104(a) citation component of the citation/orders, despite the fact that the documents referred to 

by Asarco refer only to the section 107(a) imminent danger order. The Secretary attached a 

declaration of Stephen Webber, MSHA's Director of the Office of Assessments, to explain the 

Secretary's practice. Mr. Webber states that the Office of Assessments does not assess penalties 

for section 107(a) orders. He states that MSHA's Metal/Nonmetal division frequently issues a 

combined section 104(a) citation and section 107(a) order in a single document. (Deel.,[ 4). He 

further states: 

In such cases it has been the longstanding practice of the Office of 

Assessments in Metal/Nonmetal cases to show [under] the "Type 

of Action" on page two of the Proposed Assessment form as 

"l 07(a) O." No operator has previously expressed any confusion 

as the basis for assessment in such cases. 

Id. Mr. Webber further explains that the designation "107(a) O" is used as an administrative 

convenience so that it is understood that a combined citation/order is involved. (Deel. ~ 5). He 

states that MSHA follows this procedure is to "implement the policy of the Office of 

Assessments to not apply the 30% reduction for good faith in such cases." (Deel.~ 6). 

The Secretary also points out that the documents relied upon by Asarco refer to violations 

of 30 C.F.R. § 56.3131. She states that since section 107( a) imminent danger orders do not 

allege violations of the Secretary's safety and health standards, it is clear that the violations arose 

out of the section 104(a) citations. 

780 
I find that Asarco's inotion is not well taken for a number ofreasons. It is black letter 

law under the Mine Act that the Secretary does not have the authority to a?sess penalties for 

section 107(a) orders. If the Secretary believes that the condition that created an imminent 

danger also violated one of her safety standards, she issues a citation under section 104(a) 

citation alleging the violation. Section 107(a) specifically provides that a section 104(a) citation 

may be issued in conjunction with such an order. The Secretary then proposes a civil penalty for 

the alleged violation of the safety standard. In these cases, the Secretary used the same document 

for both the section 104(a) citation and section 107(a) order. In each case the combined 

document clearly states in item 12 that the type of action is a 107(a) order and 104(a) citation. A 

civil penalty can only be proposed for the 104(a) citation portion of the document that alleges a 

violation of a safety standard. As noted by Asarco in its motion, the relationship between 

sections 104(a), 107(a), and the Secretary's authority to propose penalties was thoroughly 

analyzed by the Commission in Eastern Associated Coal Corp., 13 FMSHRC 902 (June 1991 ). 

Asarco and the law firm of Patton Boggs LLP have frequently appeared in cases before 

this Commission and they have a sophisticated level of knowledge of the Mine Act. They are 

well aware that the Secretary does not have the authority to propose civil penalties for alleged 

violations of 107(a). This concept is so well established that they should also know that the 

Secretary fully understands that she cannot propose penalties for imminent danger orders. In 

addition, Asarco and Patton Boggs should be aware that the section 104(a) portion of each 

citation/order alleges a violation of section 56.3131 not the 107(a) portion. In each document 

relied upon by Asarco in its motion, the Secretary alleges a violation of that safety standard. The 

allegation of a violation can only relate to the section I 04( a) citation notwithstanding the 

references to section 107(a) in these documents. An individual with only a passing familiarity of 

the Mine Act and MSHA's assessment process would be able to understand that the penalties in 

these cases were proposed for the alleged violations of section 56.3131, which relate back to the 

section 104(a) citations by operation of law. 

While it would perhaps be a little clearer if the computer generated forms listed both 

107(a) and 104(b) under "Type of Action," Asarco and Patton Boggs should not have been 

confused by this omission. The explanation provided by Mr. Webber is reasonable. The Office 

of Assessments places the 107(a) order designation on the forms so that anyone reading them 

will know that the alleged violation arose out of circumstances that the Secretary believes created 

an imminent danger. The fact that a section 104(a) citation was also issued and forms the basis 

for the proposed penalty is implied. The motion filed by Patton Boggs on behalf of Asarco 

makes clear that they understand the interrelationship between sections 104(a), 107(a), and the 

Secretary's authority to propose civil penalties. 

781 
For the reasons set forth above, Asarco's motion to dismiss these cases is DENIED. The 

hearing in these cases will be held on August 14, 2001, in Tucson, Arizona, as previously 

scheduled. -

Distribution: 

l 

Richard W.. Manning. · 

Administrative· Law Judge 

Alan M. Raznick, Esq:, Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St., 

Suite 1110, San Francisco, CA 94105-2999 (Fax and First Class Mail) 

Cole A. Wist, Esq., Patton Boggs, 1660 Lincoln Street, Suite 1900, Denver, CO 80264 (Fax and 

First Class Mail) 

RWM 

782 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-~3577/FAX 303-844-5268 

CDK CONTRACTING COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRA TION, (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CDK CONTRACTING COMPANY, 

Respondent 

July 27, 2001 

CONTEST PROCEEDINGS 

Docket No. WEST 2001-154-RM 

Citation No. 7941750; 12/05/2000 

Portland Plant & Quarry 

Mine Id 05-00037 L35 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2001-298-M 

A.C. No. 05-00037-05504 L35 

Portland Plant & Quarry 

ORDER GRANTING SECRETARY'S MOTION TO AMEND CITATION 

TO ALLEGE VIOLATIONS OF TWO ALTERNATIVE SAFETY STANDARDS 

The Secretary filed a motion to amend Citation No. 7941750 and the penalty petition for 

WEST 2001-298-M to allege, in the alternative, that CDK Contracting Company ("CDK") 

violated 30 C.F.R. § 56.14105 in addition to the allegation in the citation that CDK violated 

section 56.12106. The Secretary is not seeking to substitute the one allegation for the other but is 

seeking to have the citation and penalty petition amended to allege violations of both safety 

standards, in the alternative. In support of her motion, the Secretary states that under Fed. R. 

Civ. P. 8( e)(2) "a party may set forth two or more statements of a claim ... alternately ... either 

in one count ... or in separate counts .... " The Secretary also relies upon the decision of former 

Commission Administrative Law Judge Lasher in Mid-Continent Resources, Inc., 10 FMSHRC 

191, 202-03 (Feb. 1988). 

CDK opposes the motion. CDK states that under section 104(a) of the Federal Mine 

Safety and Health Act, 30 U.S.C. § 801, et seq. ("Mine Act"), the Secretary is required to 

"includ( e] a referenc.e to the provision of the Act, standard, rule, regulation, or order alleged to 

783 
have been violated." (emphasis added). CDK maintains that the Secretary is without authority to 

allege violations of alternative safety standards in a citation or order. In addition, it argues that it 

will be materially prejudiced by granting the Secretary's motion because it will have to conduct 

additional discovery, undertake additional legal research, and prepare to defend against 

alternative legal theories at the hearing. In addition, because CDK will be ending its operations 

in Fremont County, Colorado, by the end of September 2001, many of its potential witnesses will 

no longer be available if the hearing is postponed from its currently scheduled date. 

Although I appreciate CDK's concerns, I conclude that the Secretary is authorized to 

amend her pleadings in this case to allege violations of two alternative safety standards. It is well 

settled that administrative pleadings are liberally construed and easily amended, as long as 

adequate notice is provided and there is no prejudice to the opposing party. The only issue is 

whether CDK is prejudiced by the amendment. The case cited by the Secretary does not discuss 

the issue raised by the Secretary's motion and I was unable to find any other Mine Act cases on 

point. The Secretary, under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et 

seq., ("OSH Act"), frequently alleges violations of two alternative standards. For example, she 

often alleges a violation of a specific safety standard and the OSH Act's general duty clause. She 

has also sought to amend a citation to include two alternative safety standards. "When an 

amendment puts no different facts in issue than the original citation, reference to an additional 

legal standard is not prejudicial." Donovan v. Royal Logging Co., 645 F.2d 822, 827 (91

h Cir. 

1981) citing So. Colo Prestress v. Occup. Safety & H. R. Comm. , 586 F.2d 1342, 1346-47 (101

h 

Cir. 1978). 

The contested citation alleges that an employee was injured by a descending elevator 

when he was helping to install a handrail in an area adjacent to the path of the elevator. The 

citation contains a rather detailed description of the accident. The MSHA inspector cited section 

56.12016, which provides, in part, that electrically powered equipment shall be de-energized 

before mechanical work is performed on such equipment. The Secretary seeks to add, in the 

alternative, a violation of section 56.14105, which provides, in part, that repairs or maintenance 

of machinery or equipment shall be performed only after the power is off. The requirements of 

these two safety standards are similar. The proposed amendment does not place "different facts 

in issue than the original citation." I find that there is no inherent prejudice in the proposed 

amendment. 

The hearing on the contested citation is scheduled for October 10, 2001. Consequently, 

CDK has sufficient time to serve additional discovery and prepare alternative defenses. Because 

CDK is closing its operations at its Colorado site by the end of September, time constrains are 

present in these cases that are untypical. Consequently, it is hereby ORDERED that, if CDK 

serves additional discovery on the Secretary, the Secretary shall put forth its best efforts to 

respond to CDK's discovery as quickly as possible. The Secretary's answers and responses to 

interrogatories, requests for admissions, and requests for production of documents, under 29 

C.F.R. § 2700.58, SHALL be provided to CDK within 18 days of service. 

784 
For the reasons set forth above, the Secretary's motion to amend Citation No. 7941750 

and her pleading in WEST 2001-298-M is GRANTED, subject to the provisions of this order. 

Distribution: 

... 

Richard W. M~g 

Administrative Law Judge 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550, 

Denver, CO 80201-6550 

Danielle M. Bonett, Esq., Jackson & Kelly, 1099 181

h Street, Suite 2150, Denver, CO 80202 

RWM 

785 
7 8 6 * l '.S. GOVERNMENT PR1NTING om CE: 2001 47J.304/SlA51