DECEMBER 2004 · 

COMMISSION ORDER 

12-23-2004 Harvey W. Buche Road Building, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-08-2004 Stanley Quackenbush v. Kentucky-Tennessee Clay 

12-10-2004 C. W. Mining Company 

12-17-2004 National Lime & Stone Company 

12-21-2004 Kerr Enterprises, Inc. 

12-30-2004 RS & W Coal Company 

i 

WEST 2004-397-M 

SE 2003-83-DM 

WEST 2003-332 

LAKE 2004-43-RM 

CENT 2004-109-M 

PENN 2005-58-R 

Pg.909 

Pg. 913 

Pg.925 

Pg.948 

Pg.953 

Pg.959 

DECEMBER 2004 

Review was granted in the following case during the month of December: 

Secretary of Labor, MSHA v. Sedgman and David Gill, employed by Sedgman, Docket Nos. 

SE 2002-111, et al. (Judge Weisberger, November 5, 2004) 

Secretary of Labor, MSHA v. Harvey W. Buche Road Building, Inc., Docket No. 

WEST 2004-397-M. (Chief Judge Lesnick, unpublished Default Order issued November 22, 2004) 

No cases were filed in which review was denied during the month of December 

ii 

COMMISSION ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMl!'llSTRATION (MSHA) 

V. 

HARVEY W. BUCHE ROAD 

BUILDING, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

December 23, 2004 

Docket No. WEST 2004-397-M 

A.C. No. 35-03260-28580 

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

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act"). On September 22, 2004, Chief 

Administrative Law Judge Robert Lesnick issued to Harvey W. Buche Road Building, Inc. 

("Buche") an Order to Show Cause for failure to answer the Secretary of Labor's petition for 

assessment of penalty. On November 22, 2004, Chief Judge Lesnick issued an Order of Default 

dismissing this civil penalty proceeding for failure to respond to the show cause order. 

On December 13, 2004, the Commission received from Buche a letter, dated December 8, 

setting forth its reasons for failing to respond to the judge's show cause order. Mot. Buche 

states that, after the show cause order issued, it began negotiations with an attorney from the 

Solicitor's Office and reached a settlement agreement. Id. However, Buche continues that the 

agreement was inadvertently misplaced, and as soon as the matter was brought to its attention it 

forwarded the signed agreement to the Solicitor's Office. Id. Buche requests the Commission to 

reopen the case in order for the settlement agreement to be processed. Id. The Secretary has not 

responded to Buche's request. 

The judge's jurisdiction in this matter terminated when his decision was issued on 

November 22, 2004. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's 

procedural rules, relief from a judge's decision may be sought by filing a petition for 

26 FMSHRC 909 
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance, 

it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). We construe Buche's 

letter to be a timely filed petition for review, which we grant. 

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled 

to relief from a final .order of the Commission on the basis of inadvertence or mistake. See 29 

C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the 

Federal Rules of Civil Procedure"); Highlands Mining & Processing Co., 24 FMSHRC 685, 686 

(July 2002). We have also observed that default is a harsh remedy and that, if the defaulting 

party can make a showing of good cause for a failure to timely respond, the case may be 

reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 

17 FMSHRC 1529, 1530 (Sept. 1995). 

The show cause order directed Buche "to send an Answer to this Commission within 30 

days or show good reason for [its] failure to do so." Order to Show Cause. However, according 

to Buche, it appears that the parties agreed to settle the case prior to the judge's entry of the 

Order to Default, but that Buche inadvertently failed to sign the settlement agreement and return 

it to the Solicitor's Office in a timely manner. Mot. 

26 FMSHRC 910 
Having reviewed Buche's request, in the interest of justice, we hereby remand this matter 

to the Chief Administrative Law Judge for a determination of whether good cause exists for 

Buche's failure to timely respond to the judge's show cause order and for further proceedings as 

appropriate. 

26 FMSHRC 911 
Distribution 

Kelly C. Moehnke, Office Manager 

Harvey W. Buche Road Building, Inc. 

35111 S. Wilhoit Rd. 

Molalla, OR 97038 

Patricia N. Drummond, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1111 Third A venue, Suite 945 

Seattle, WA 98101-3212 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

26 FMSHRC 912 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

December 8, 2004 

STANLEY QUACKENBUSH, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. SE 2003-83-DM 

SE MD 2002-13 

KENTUCKY-TENNESSEE CLAY, 

Respondent 

Kentucky-Tennessee Clay 

Mine ID 38-00052 

Appearances: 

Before: 

DECISION 

John P. Batson, Esq., Augusta, Georgia, for the Complainant; 

R. Lee Creasman, Esq., Joshua H. Viau, Esq, Elarbee, Thompson, 

Sapp & Wilson, LLP, Atlanta, Georgia, for the Respondent. 

Judge Feldman 

This case is before me based on a discrimination complaint filed with this Commission 

pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(c)(3) (the Act). The complaint was filed by Stanley Quackenbush against the respondent, 

Kentucky-Tennessee Clay (KTC). 1 Quackenbush asserts that he engaged in protected activity 

when he complained about a hazard caused by tree limbs that protruded over train tracks traveled 

by company railcars. Quackenbush contends that his complaint motivated the company to issue a 

retaliatory disciplinary write-up on July 12, 2002, following a July 9, 2002, on-site MSHA 

inspection conducted in response to an employee complaint. The disciplinary action was taken 

because of Quackenbush's alleged failure to report the tree limb problem to the company in a 

timely manner. Quackenbush also asserts that he was ordered to clear the overgrowth from the 

tracks on August 2, 2002, in retaliation for his safety complaint. Quackenbush alleges that he 

sustained carpal tunnel injuries as a result of his track clearing assignment. 

In response, KTC contends its July 12, 2002, disciplinary action, and its decision to 

assign Quackenbush to trim the trees and bushes alongside the train tracks, were not motivated 

by Quackenbush's protected activity. With respect to the job assignment, KTC alternatively 

maintains that Quackenbush was assigned to clear the tracks for business reasons that were 

unrelated to his protected activity. 

1 Quackenbush's complaint which serves as the jurisdictional basis for this case was filed with 

the Secretary of Labor on August 22, 2002, in accordance with section 105( c )(2) of the Act, 

30 U.S.C. § 815(c)(2). The complaint was investigated by the Mine Safety and Health Administration 

(MSHA). On February 11, 2003, MSHA advised Quackenbush that the facts disclosed during its 

investigation did not constitute a violation of section 105(c). On March 6, 2003, Quackenbush filed 

his discrimination complaint with this Commission which is the subject of this proceeding. 

26 FMSHRC 913 
This case was heard on July 13 and July 14, 2004, in Augusta, Georgia. The record was 

left open for the teleconference testimony of Glenn Mealer, Quackenbush's co-worker, who was 

unable to attend the hearing. Mealer's testimony was taken on July 20, 2004, at which time the 

record was closed. The parties' post-hearing briefs have been considered in the disposition of 

this matter. 

For the reasons discussed below, Quackenbush' s discrimination complaint with respect to 

his July 12, 2002, disciplinary notice shall be granted. However, Quackenbush's branch 

trimming job assignment was motivated by an independent business decision that would have 

been taken even if Quackenbush had not engaged in protected activity. Accordingly, 

Quackenbush' s complaint regarding his assigned duties on August 2, 2002, shall be denied. 

I. Findings Of Fact 

a. KTC Operations 

KTC processes kaolin clay at its Langley, South Carolina facility where it employs 

approximately fifty people. At all times relevant to this proceeding, Murray Penner was the Plant 

Manager, Teresa Bolin was the Safety Manager and Bob Wiley was the Production Supervisor. 

The clay processed at Langley is extracted from three different mine locations in Aiken County, 

South Carolina that are located one, seven and twenty-six miles away from the Langley facility. 

At these mine sites, overburden, consisting of dirt, sand and other debris, is removed from the top 

layer of earth to expose the kaolin. This is done through a process called "stripping" which 

involves the use of tractors and scrapers. After kaolin is exposed, it is dug out with a track hoe, 

loaded into dump trucks, and transported to the Langley plant storage area. 

At the storage area, the clay is processed through hoppers and slicers from boulder size to 

small pieces varying in size from one to two feet in diameter. The clay is then transported to one 

of two mills, one a roller, and the other a set of huge hammers, that break and de-conglomerate 

the clay. The clay is then classified and prepared for shipment. 

Once ready for shipping, the clay is loaded into rail cars by the bulk loading crew, which 

consists of an engineer and a switchman. The railcars are backed into a shed where large pipes 

load clay into the top of the railcars. Upon leaving the shed, the train travels about 1,000 to 

1,500 feet to a switch where the switchman washes excess clay or spillage from the outside of the 

railcars. After washing, the railcars are taken by locomotive, usually three or four at a time, to 

the mainline where the clay filled cars are decoupled for shipment to customers. 

The rail line running from the plant to the mainline is approximately one and one half 

miles long and crosses two public roads. The first leg of the trip is approximately one mile 

during which time the train travels downhill at approximately ten miles per hour, with the 

locomotive in front, until it reaches Huber Clay Road. At that point the switchman, who had 

been riding in the engineer compartment, exits the train to stop traffic so that the train can cross 

Huber Clay Road. The switchman then climbs aboard the side or rear of the train while the train 

26 FMSHRC 914 
travels an additional 1,000 feet where the tracks cross Highway 421. The train travels at speeds 

of approximately two to four miles per hour between Huber Clay Road and Highway 421. 

At Highway 421 the switchman once again gets off the train to stop traffic so the train can 

cross. The switchman climbs back aboard the side or rear of the train for a distance of a few 

hundred feet until the train arrives at the mainline drop-off site. When riding on the ladder 

attached to the side of the train, the switchman has the greatest exposure to being struck by 

overgrown branches. (Tr. 238). Upon arriving at the mainline, the cars are decoupled and empty 

cars are connected to the locomotive. The empty cars are transported uphill back to the 

processing plant with the locomotive in the back, to begin the cycle over again. 

b. Quackenbush's Employment 

Stanley Quackenbush was 40 years old during the relevant times in this proceeding. 

He is approximately five feet eight inches tall and weighs about 193 pounds. (Tr. 36). 

Quackenbush's employment history includes working from 1987 until 1999 as a carpenter in 

construction jobs that included framing houses. Prior to working in carpentry, Quackenbush was 

a production forklift operator from 1982 to 1987. (Resp. Ex. 1; Tr. 201). Quackenbush also has 

a history of self-employment in the remodeling business that includes construction of porches 

and decks. (Tr. 160). 

Quackenbush testified that he had a "slight case" of carpal tunnel since a 1999 

automobile accident. (Tr. 133-34, 180-81). He initially learned of his condition after it was 

identified in a February 1, 1999, electromyography (nerve conduction study) conducted shortly 

after his accident. The electromyography revealed evidence of "a slight case of carpal tunnel in 

[his] left hand." (Tr. 181-83; Comp. Ex. 8). Although the diagnostic test showed evidence of a 

mild condition, prior to August 2, 2002, Quackenbush was never treated for carpal tunnel. 

Despite any history of relevant treatment, he reportedly experienced "tingling" in his hands and 

arms when operating his weed-eater at home. (Tr. 178-80). After he recovered from his 

car accident, Quackenbush had no physical impairment that interfered with his activities. 

(Tr. 179). In this regard, Quackenbush testified he was able to perform construction work 

without difficulty at Kelly Construction Company when he returned to work in 1999 after his 

accident. (Tr. 185-86). 

Quackenbush began working for KTC in April 2000 as a utility worker. As a utility 

worker, his duties consisted of cleaning the plant, which included lifting forty-five to fifty pound 

bags of clay, sweeping, and shoveling clay weighing up to twenty pounds per shovel when wet. 

Later, Quackenbush held the position of "super sacks" which required him to fill and weigh 

sacks of clay, and load the sacks onto a pallet with a forklift. At no time during his employment 

in these general laborer positions did Quackenbush notify anyone that he had any physical 

limitations that prevented him from performing the full range of his job duties. (Tr. 200-01). 

On or about September 10, 2001, KTC posted a job opening notice for the "bulk loader" 

position. The duties of the bulk loader, which were listed in the notice, included "making sure 

26 FMSHRC 915 
the railroad track is kept clean and safe," "performing the duties of a switchman when the train 

is being operated," and "performing other duties that may be assigned by your supervisor." 

(Resp. Ex. 2; Tr. 160-01). On September 17, 2001, Quackenbush submitted a bid for the 

bulk loader position and he was selected for the job. (Resp. Ex. 3; Tr. 161). 

Glenn Mealer also held the position of bulk loader and he operated the locomotive. 

Quackenbush assumed the role of switchman when the train was in use. As bulk loaders, 

Quackenbush and Mealer were responsible for maneuvering the rail cars in the loading area, and 

for transporting the cars to the mainline for delivery to customers. While there were three shifts 

at Langley, at all times relevant to this proceeding, Mealer and Quackenbush were the only bulk 

loaders as the train was only operated for a single shift. Both Mealer and Quackenbush reported 

to Bob Wiley. As with his duties as a utility man and "super sacks," Quackenbush was able to 

perform his bulk loader/switchman job without any restrictions or physical limitations until his 

reported injury on August 2, 2002. (Tr. 179, 200-01). 

c. July 9, 2002, MSHA Track Inspection 

On July 9, 2002, MSHA Inspector James Enoch visited the Langley site to investigate a 

written complaint MSHA had received from an employee regarding overgrowth over the train 

tracks. (Tr. 335). Wiley, Bolin and Penner testified this was the first time they learned of 

hazardous tree limbs. (Tr. 224, 336, 403). Both Quackenbush and Mealor deny that they were 

the source of the MSHA complaint. (Tr. 166, 515). The identity of the complainant has not been 

revealed. 

Both Quackenbush and Mealer testified they repeatedly communicated verbal complaints 

to management. (Tr. 42-50, 52, 61, 64, 169-70, 511). In this regard Mealer testified "I 

mentioned it to [Wiley] plenty of times about the trees need cutting, but it's just like they don't 

listen to you." (Tr. 511). Mealer testified Wiley and Bolin told them to write a work order if 

they wanted anything done about the overgrowth. (Tr. 508-09, 533, 535-36). Consequently, 

Mealer left a written work order for cutting tree limbs in Bolin's mailbox on July 8, 2002. 

(Tr. 340, 512-13). Quackenbush believed the write-up occurred on June 28, 2002. (Tr. 48-49). 

Bolin, who had just returned from vacation, was not aware of the work order when Enoch arrived 

at the mine site on July 9, 2002, because she had not read her mail. (Tr. 339-41). 

Enoch rode the train with Quackenbush, Mealer, Bolin, Wiley and Penner. In addition to 

observing the track conditions, Enoch reviewed work orders from the previous three months to 

determine if hazardous track conditions had been reported. With the exception of the work order 

written by Mealer the previous day, Enoch did not find any relevant written complaints about 

overgrown trees. (Tr. 339, 343). 

As a result of his inspection, Enoch issued Citation No. 6111950 on July 9, 2002, 

citing a violation of the mandatory safety standard in section 56.11001 that requires that a safe 

means of access to all working places must be provided and maintained. 30 C.F.R. § 56.11001. 

26 FMSHRC 916 
Citation No. 6111950 stated: 

Tree limbs growing out over the railroad tracks constitutes (sic) unsafe access for 

the switchman who rides out on the end of the bulk railcar from the mainline to 

the loadout area. The slapping action of the limbs as he passes by could cause 

serious injury. 

(Comp. Ex. 1). 

The violation was designated as non-significant and substantial (non-S&S). A violation 

is non-S&S if it is unlikely that the hazard contributed to by the violation will result in the 

occurrence of a serious injury. Nat'l. Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

Inspector Enoch established July 22, 2002, as the abatement date for the cited track violation. 

(Comp. Ex. 1). The abatement date was subsequently extended through the first week of 

August 2002. (Tr. 76). 

d. July 12. 2002, Disciplinary Action 

Wiley, Bolin and Penner testified neither Quackenbush nor Mealer had reported any tree 

limb problems before Enoch's July 9, 2002, inspection. (Tr. 224, 336, 404, 425-26). Each 

employee is responsible for reporting potential safety hazards in their work area. Penner did not 

consider Mealer's July 8, 2002, written work order as timely given the long term nature of the 

hazardous condition. Thus, on July 12, 2002, Wiley issued written warnings to Quackenbush and 

Mealer, which were removed from their files after thirty days, for "failure to report a hazard in 

your work area in a timely manner." (Comp. Exs. 3, 4; Tr. 424). Quackenbush conceded his file 

no longer contained any reference to the July 12, 2002, disciplinary notice and he did not suffer 

any loss of pay, demotion or other adverse action as a result of the warning. (Tr. 168-69). 

e. Abatement of Citation No. 6111950 

Upon receiving the citation, Penner began to consider options for trimming the 

overgrowth. Penner had never been involved with controlling the track vegetation. In the past, 

tree cutting arrangements were made by Oscar Rhoades, KTC's Purchasing Manager. Rhoades 

had hired contractors to cut limbs that impeded the track. Rhoades retired at the end of 2001. 

(Tr. 336-37). Penner requested an estimate from a local contractor. The estimate was between 

$8,000 and $10,000. Because the bid seemed high, Penner obtained a second bid that was similar 

to the initial estimate. (Tr. 415). 

26 FMSHRC 917 
Penner considered the estimates to be extremely high .. Penner believed the company could 

avoid the expense by assigning KTC employees to trim the branches using equipment that could 

be purchased for less than $1,000. Penner ordered a commercial weed-eater with a hedge trimmer 

attachment to perform the pruning. (Tr. 415). The weed-eater without the hedge trimming 

attachment weighs approximately 11 pounds. (Comp. Ex. 5). It is unclear how much additional 

weight is added with the attachment. 

While waiting for the weed-eater to be delivered, realizing that MSHA had established 

July 22, 2002, as the abatement date, Penner enlisted the help of maintenance mechanics 

Earl Morris and Wes Taylor. Morris and Taylor volunteered to work on a Saturday using their 

personal chain saws to clear the brush along the side of the track. Morris and Taylor cut back the 

brush while standing on the front platform of the locomotive while Cliff Jones operated the train. 

However, they were unable to clear all of the branches because the chain saws lacked the reach of 

the weed-eater/hedge trimmer. (Tr. 415-16). 

Once the hedge trimmer arrived, Penner decided that Quackenbush and Mealer were the 

logical choices to trim the branches because they routinely traveled the train tracks. (Tr. 420-21). 

Penner explained his decision followed normal plant policy that kept maintenance mechanics free 

to perform repairs while production employees were responsible for maintaining their own work 

areas. (Tr. 420-22, 434; Resp. Ex. 2). Moreover, once Quackenbush and Mealer were trained to 

use the brush trimmer, they could take care of overgrowth as the need arose during the course of 

their trips to and from the mainline. (Tr. 421). 

Based on Penner' s decision, on August 1, 2002, Wiley told Mealer that he and 

Quackenbush were going to be task trained on the new trimmer, and that they were to cut the 

branches the following day. (Tr. 231). The next day, on Friday, August 2, 2002, Wes Taylor, a 

maintenance mechanic, went down to the pit area to get Mealer and Quackenbush to task train 

them on the new equipment. (Tr. 298-99). Mealer and Quackenbush were non-responsive, so 

Taylor returned to the office and informed Wiley that Mealer and Quackenbush did not want to 

cut the limbs. (Tr. 233). Taylor returned to the pit area with Wiley. Wiley asked Mealer and 

Quackenbush if there was a problem. He explained to the men that Taylor was going to task train 

them, and he emphasized that they were responsible for cutting the branches. (Tr. 234). 

Quackenbush and Mealer testified that Wiley pointed his finger at Quackenbus and told 

him he would be cutting the branches while Mealer operated the train. (Tr. 132, 520). Taylor 

testified that he did not see Wiley point his finger. (Tr. 302). Quackenbush also testified that he 

expressed concerns to Wiley regarding the adequacy of the tie-off on the train handrail, and the 

lack of a radio on the train to report an injury. (Tr. 135, 519). Mealer stated Wiley was 

unresponsive to Quackenbush's safety concerns in that he continued to insist that Quackenbush 

and Mealer cut the limbs even if they did not want to. (Tr. 520). 

26 FMSHRC 918 
At approximately 9:00 a.m., Taylor took the newly purchased trimmer and safety 

equipment, including a harness, safety goggles, and gloves, down to the tracks with Mealer and 

Quackenbush. (Tr. 298). Taylor showed them how to start the equipment and he told them to 

read the operational manual. (Tr. 302-04; Comp. Ex. 5). Taylor testified it took only a few 

minutes to task train them, and that starting and operating the weed-eater with the hedge trimmer 

attachment "was not very hard at all." (Tr. 320-22). As Quackenbush began reading the manual, 

he showed Taylor that the manual cautioned that prolonged use of the equipment can cause carpal 

tunnel syndrome. (Comp. Ex. 5). Quackenbush told Taylor that he had been diagnosed with 

carpal tunnel in the past. (Tr. 133-34). Taylor asked Quackenbush if he had notified anyone at 

the company, or if he had a doctor's note. (Tr. 103, 302). Quackenbush responded that he had 

not. (Tr. 103, 302-03; Comp. Ex 6). Taylor suggested that Quackenbush could talk to Bolin if he 

had a problem operating the trimmer. (Tr. 303). Taylor also suggested Quackenbush take a break 

if he felt tired. (Tr. 522). 

Mealer and Quackenbush took turns cutting the branches as the train stopped while 

moving down the track. (Tr. 528). They cut the branches by extending the weed-eater with the 

hedge trimmer attachment over the top and to the side of the train as they stood on the platform at 

the front of the locomotive. They tied-off on the handrail surrounding the platform with a rope 

that was four feet long. As they leaned out from the train, the rope would prevent them from 

hitting the ground if they fell, but it would not prevent them from falling against the side of the 

train. (Tr. 135, 526). Mealer felt it was unsafe to stand on the train and hold the heavy trimmer 

out away from his body. (Tr. 529). Mealer and Quackenbush cut the limbs for approximately 

three hours. (Tr. 528). Although both Mealer and Quackenbush took turns cutting the brush, 

Mealer believed Quackenbush cut more often than Mealer did. (Tr. 530-31). At no time did 

Mealer or Quackenbush refuse to perform the work. Quackenbush did not complain to Taylor 

about carpal tunnel-like pain while using the equipment. (Tr. 303). Quackenbush believed he 

would be fired if he refused to trim the branches. (Tr. 144). 

When Quackenbush went to lunch, his arms were bothering him. Quackenbush tried to 

contact Bolin on Friday afternoon on August 2, 2002, but she did not return his call. When 

Quackenbush returned to work on Monday, August 5, 2002, he told Bolin that his arms were 

hurting since using the weed-eater the previous Friday. (Tr. 371). Bolin immediately took 

Quackenbush to the Family Medical Center in Aiken, South Carolina. Quackenbush did not 

return to work after August 5, 2002, and he subsequently had surgery on both hands. He received 

workers' compensation until April 2003. Quackenbush returned to work at KTC from April 2003 

until October 2003, at which time he again reported he could no longer work because of pain in 

his arms. Quackenbush is currently receiving workers' compensation benefits and he has not 

worked since October 2003. 

Mealer, Donald Thurmond who currently is Mealer' s switchman, and Earl Morris 

from the maintenance department, continue to periodically trim the brush with the weed-eater. 

(Tr. 539-40, 542-43). Since August 2, 2002, KTC has designed and constructed a platform 

extension that attaches to the train. This new platform is placed on the existing platform on the 

26 FMSHRC 919 
front of the locomotive after the train' s handrail is removed. The new platform overlaps the train 

making it easier to reach out and cut the branches. (Tr. 527, 539-40). 

II. Further Findings and Conclusions 

a. Statutory Framework 

Section 105( c )( 1) of the Mine Act provides, in pertinent part: 

No person shall discharge or in any manner discriminate against ... any miner ... 

because such miner . . . has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator's agent ... of an alleged 

danger or safety or health violation in a coal or other mine .... 

30 U.S.C. § 815(c)(l). 

Quackenbush has the burden of proving a prima facie case of discrimination. In order to 

establish a prima facie case, he must establish that he engaged in protected activity, and that the 

aggrieved action was motivated, in some part, by that protected activity. See Sec'y of Labor 

olb/o 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); 

Sec'y of Labor olb/o Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(April 1981). Quackenbush relies on his tree limb complaints as the protected activity. The 

adverse actions complained of are the July 12, 2002, disciplinary notice and Quackenbush's 

August 2, 2002, job assignment. 

KTC may rebut a prima facie case by demonstrating, either that no protected activity 

occurred, or that the adverse action was not motivated in any part by protected activity. 

Robinette, 3 FMSHRC at 818 n.20. KTC may also affirmatively defend against aprimafacie 

case by establishing and that it would have taken the adverse actions complained of even if the 

protected activity had not occurred. See also Jim Walter Resources, 920 F.2d at 750, citing 

with approval Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); 

Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Baich v. FMSHRC, 

719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the Commission's Pasula-Robinette 

test). 

b. July 12, 2002. Disciplinary Notice 

A fundamental element of a discrimination complaint is the mine operator's knowledge 

of the protected activity. Mealer and Quackenbush assert they repeatedly complained about tree 

limbs hitting the train. Penner, Wiley and Bolin deny any knowledge of hazardous track 

conditions prior to Enoch's July 9, 2002, inspection. Assuming, arguendo, that relevant 

complaints were not verbally communicated to company officials in the weeks preceding 

26 FMSHRC 920 
Enoch's inspection, it is undisputed that Penner, Wiley and Bolin were aware of a protected 

safety related complaint by virtue of the July 8, 2002, work order.2 Moreover, Wiley reluctantly 

conceded that it was reasonable to conclude that Mealer and Quackenbush were responsible, 

directly or indirectly, for the MSHA complaint since they were the most familiar with, and 

affected by, the track conditions.3 (Tr. 251-55). Notwithstanding the fact that Mealer and 

Quackenbush were the logical MSHA informants, their participation in Enoch's July 9, 2002, 

inspection, alone, is protected activity. 

The July 12, 2002, disciplinary notice charging Quackenbush with failing to report a 

hazard in a timely manner occurred shortly after the protected work order and participation in 

the MSHA inspection. Protected activity is unqualified. It does not lose its statutory protection 

simply because a mine operator considers the activity to be untimely. With respect to the 

suspected MSHA complaint, a miner has an unfettered right to advise MSHA of a hazardous 

condition. Section 105(c) of the Mine Act protects a miner's right to inform MSHA of a 

hazardous condition even if the miner had not brought the condition to the mine operator's 

attention. To allow a mine operator to insist on prior notice before a miner is allowed to contact 

MSHA would create a chilling effect. Thus, the July 12 discipline was motivated by protected 

activity, regardless of the timing of the July 8 work order. Accordingly, the disciplinary notice 

violated section 105( c) of the Mine Act. 

c. August 2. 2002. Job Assignment 

Quackenbush's protected complaint about a hazardous condition does not, alone, insulate 

him from being assigned to remedy that condition. Rather the issue is whether Quackenbush was 

the victim of discriminatory retaliation manifest by disparate treatment because of an 

unreasonable job assignment. 

In determining whether a mine operator's action violates the statutory protection accorded 

to miners, the scope of a discrimination proceeding is limited to whether the operator's reported 

rationale for the adverse action complained of is a pretext to mask prohibited retaliation. In this 

regard, the "Commission does not sit as a super grievance board to judge the industrial merits, 

fairness, reasonableness, or wisdom of an operator's employment policies except insofar as those 

policies may conflict with rights granted under section 105(c) of the Act." Delisio v. Mathies 

Coal Co., 12 FMSHRC 2535, 2544 (December 1990) (citations omitted). 

2 Although the work order was written by Mealer, it was clear that the work order was also 

filed on behalf of Quackenbush. (Tr. 48-49, 513). 

3 The identity of the MSHA complainant has not been revealed. The Commission has held 

that" ... discrimination based upon a suspicion or belief that a miner engaged in protected activity, 

even though, in fact, he has not, is proscribed by section 105(c)(l)." Sec'y o/b/o Moses v. Whitley 

Dev. Corp., 4 FMSHRC 1475, 1480 (Aug. 1982), aff'd. sub nom, Whitley Dev. Corp. v. FMSHRC, 

770 F.2d 168 (6t1t Cir. 1985). 

26 FMSHRC 921 
The Commission has addressed the proper criteria for considering the merits of an 

operator's asserted business justification. 

Commission judges must often analyze the merits of an operator's 

alleged business justification for the challenged adverse action. In 

appropriate cases, they may conclude that the justification is so 

weak, so implausible, or so out of line with normal practice that it 

was mere pretext seized upon to cloak the discriminatory motive. 

The Commission and its judges have neither the statutory charter 

nor the specialized expertise to sit as a super grievance or 

arbitration board meting out industrial equity. Once it appears that 

a proffered business justification is not plainly incredible or 

implausible, a finding of pretext is inappropriate. We and our 

judges should not substitute for the operator's business judgment 

our views on "good" business practice or on whether a particular 

adverse action was 'just" or "wise." The proper focus, pursuant to 

Pasula, is on whether a credible justification figured into the 

motivation and, if it did, whether it would have led to the adverse 

action apart from the miner's protected activities. 

Sec'y of Labor olb!o Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-17 

(November 1981) (citations omitted), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983). 

The Commission subsequently further explained its analysis as follows: 

[T]he reference in Chacon to a "limited" and "restrained" 

examination of an operator's business justification defense does 

not mean that such defenses should be examined superficially or be 

approved automatically once offered. Rather, we intended that a 

judge, in carefully analyzing such defenses, should not substitute 

his business judgment or a sense of "industrial justice" for that of 

the operator. As we recently explained, "Our function is not to 

pass on the wisdom or fairness of such asserted business 

justifications, but rather only to determine whether they would 

have motivated the particular operator as claimed." 

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (November 1982) (citations omitted). 

Thus, resolving whether the selection of Quackenbush was a pretext to conceal a 

retaliatory motive requires analyzing whether KTC's proffered business justification is plainly 

credible and plausible. As an initial matter, it is undisputed that clearing the train track was a 

legitimate business necessity as it was required to abate an MSHA citation, as well as to maintain 

safe track conditions. Penner' s decision to minimize company expense by performing the job 

26 FMSHRC 922 
in-house rather than contracting it out is a decision committed to company discretion that is not 

amenable to judicial micromanagement. 

Having concluded that the decision to use employees rather than a contractor to trim 

overgrowth was an independent and legitimate business decision, the focus shifts to whether 

the selection of Quackenbush evidenced disparate or otherwise inappropriate treatment. 

On August 2, 2002, Quackenbush was a 40 year old physically fit individual with a job history 

of manual labor, including work as a construction laborer. Quackenbush had performed all job 

duties at KTC without any physical limitations. 

Although "slight" carpal tunnel in Quackenbush's left wrist was revealed by a clinical 

nerve conduction study in 1999, he had never been treated for carpal tunnel. Significantly, 

although he mentioned a carpal tunnel history to Taylor, Quackenbush concedes that neither 

Wiley nor any other management person was aware that he had any physical impairment on 

August 2, 2002. Having failed to communicate his carpal tunnel condition to management, his 

previously diagnosed carpal tunnel is not relevant to the issue of alleged retaliatory conduct. 

While the initial method of cutting branches left room for improvement, as evidenced by 

the new platform attachment currently in use, there is no evidence to suggest Penner, Wiley or 

Bolin, intended to harass or intentionally inflict injury. Moreover, the retaliatory claim based on 

the assertion that Wiley knew the job obviously was unsafe is undermined by Quackenbush's 

assertion that Taylor, Morris or other Maintenance Department employees should have 

performed the work instead of Quackenbush. (Comp. Br. 19). 

The specific task of tree pruning was not within any company job description as this 

function had been performed by outside contractors. However, Quackenbush's job history as a 

utility man performing general labor made him a suitable candidate to use a hedge trimmer. 

Moreover, Quackenbush and Mealer were the logical choices to trim the branches because they 

were familiar with track conditions. (Tr. 420-21). In this regard, production employees were 

responsible for maintaining their own work areas. In fact, the responsibilities detailed in the 

"bulk loader" job description included "making sure the railroad track is kept clean and safe." 

(Resp. Ex. 2). In addition, selecting bulk loaders to trim the branches kept maintenance 

mechanics free to perform repairs. Once Quackenbush and Mealer were trained to use the brush 

trimmer, they could take care of the overgrowth on an as needed basis during the course of their 

round trips to the mainline. In fact, Mealer and Thurmond continue to operate the hedge trimmer 

from the train periodically. Consequently, Penner's justification for selecting Mealer and 

Quackenbush is credible and plausible. 

Commission judges may not substitute their view for a mine operator's business 

judgment on whether a particular business practice is "just" or "wise." Chacon, 3 FMSHRC at, 

2516-17. While, with the benefit of hindsight, the August 2, 2002, method of trimming the train 

tracks may not have been prudent, there is no evidence the job assignment was motivated by a 

desire for retaliation. 

26 FMSHRC 923 
In the final analysis, Quackenbush has failed to demonstrate that the August 2, 2002, job 

assignment was in retaliation for his protected safety related complaints. Even if Quackenbush 

had shown that the assignment was partially motivated by his complaints, KTC has affirmatively 

demonstrated that it would have assigned Mealer and Quackenbush to clear the brush from the 

train tracks even if they had not engaged in protected activity. Accordingly, Quackenbush's 

discrimination complaint with regard to his August 2, 2002, job assignment shall be denied.4 

ORDER 

In view of the above, Stanley Quackenbush's discrimination complaint with respect to his 

August 2, 2002, work assignment IS DENIED. 

Stanley Quackenbush's discrimination complaint with respect to his July 12, 2002, 

disciplinary notice IS GRANTED. IT IS ORDERED that Kentucky-Tennessee Clay shall 

expunge, within thirty (30) days of the date of this decision, any reference to the disciplinary action 

from Quackenbush's personnel file, and that no reference to the discipline shall be disclosed to any 

prospective employer or other interested party. 

IT IS FURTHER ORDERED that upon timely expungement of Quackenbush' s personnel 

records, the discrimination proceeding in Docket No. SE 2003-83-DM IS DISMISSED. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

John P. Batson, Esq., 303 Tenth Street, P.O. Box 3248, Augusta, GA 30914-3248 

R. Lee Creasman, Jr., Esq., Elarbee, Thompson, Sapp & Wilson, LLP, 800 International Tower, 

229 Peachtree St., Atlanta, GA 30303 

/hs 

4 Having concluded that Quackenbush' s work assignment was not motivated by protected 

activity, I have not addressed the issues of whether damages for pain and suffering are recoverable 

under section 105(c) of the Mine Act, and, if so, whether South Carolina's Workers' Compensation 

Act bars the recovery of such damages. 

26 FMSHRC 924 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/F AX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C. W. MINING COMPANY, 

Respondent 

December 10, 2004 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2003-332 

A.C. No. 42-02263-03503 

Bear Canyon No. 3 Mine 

Docket No. WEST 2004-148 

A.C. No. 42-01697-14546 

Bear Canyon No. 1 Mine 

Appearances: Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner; 

Carl F. Kingston, Esq., Salt Lake City, Utah, for Respondent. 

Before: Judge Manning 

These cases are before me on two petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"), 

against C. W. Mining Company ("CW"), pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The cases involve 

18 citations issued at the Bear Canyon Nos. 1and3 Mines in Emery County, Utah. The 

Secretary proposes a total penalty of $21,150.00 in these cases. An evidentiary hearing was held 

in Salt Lake City, Utah. The parties introduced testimony and documentary evidence. 

I. WEST 2003-332 

In August 2002, CW was in the process of developing the Bear Canyon No. 3 Mine as an 

underground coal mine. This mine is very close to the Bear Canyon No. 1 Mine, which was an 

operating underground coal mine. Both mines used the same surface structures, including the 

office and bathhouse. Miners working for CW had driven entries about 200 feet into the 

mountain. As the crew mined into the mountain, they installed a canopy along the roof for about 

20 feet inby the portal. (Tr. 82). This canopy consisted of H beams installed along the ribs and 

across the roof with steel plating between the beams. CW miners had been in the No. 3 portal on 

August 28, 2002, working on this project. Prior to the beginning of that shift, a preshift 

examination had been conducted and the date, time, and initials of the person who conducted the 

exam were written. on a board near the entrance of the portal (the "D, T & I board"). 

26 FMSHRC 925 
On August 29, 2002, Donald E. Durrant, an inspector with the Department of Labor's 

Mine Safety and Health Administration ("MSHA") was at the Bear Canyon No. 1 Mine 

conducting an inspection. He had been inspecting this mine for several weeks. At about 10:00 

a.m., he decided to go look at the Bear Canyon No. 3 Mine. When he arrived, he observed about 

eight individuals working in the vicinity of the portal. He believed that some of these individuals 

were working inside the portal, including Mr. Felix Ramirez who was arc-welding metal. 

Inspector Durrant noticed that the yellow plastic tape warning people to keep out of the mine was 

on the ground but that the D, T & I board did not show that a preshift examination had been 

performed. 

The eight individuals working at the portal were employees of Advance Technical 

Research and Engineering ("Advance"), an independent contractor of CW. According to Charles 

Reynolds, an engineer with CW who was responsible for supervising the contract, Advance was 

hired to construct a number of items at the portal including a canopy that would extend out from 

the portal to protect people and equipment from any rocks that might fall down the side of the 

mountain. Advance's employees were not miners and were not certified to conduct preshift 

examinations. Kenneth Defa, the mine superintendent, testified that a specific CW employee had 

been designated to perform any required examinations and tests at this mine. 

A. Citation No. 7612553 

Inspector Durrant issued Citation No. 7612553 under section 104(d)(l) of the Mine Act 

alleging a violation of section 75.360(a)(l) of the Secretary's safety standards. The body of the 

citation states as follows: 

Eight contract miners were working in the #3 portal area doing 

construction work without the mine being preshifted. The miners 

entered the portal at around 9:00 AM. The miners were sent there 

by Mr. Robert Putnam, but C.W. Mining Co. personnel have been 

conducting the preshifts as the contractor has no certified 

employees to perform the examinations. The mine operator did not 

insure that the preshift was conducted prior to work being 

performed in the mine. 

The inspector determined that the gravity was serious, that the violation was of a significant and 

substantial nature ("S&S"), and that the negligence was high. The safety standard provides, in 

part, that "a certified person designated by the operator must make a preshift examination within 

3 hours preceding the beginning of an 8-hour interval during which any person is scheduled to 

work or travel underground." The Secretary proposes a penalty of $1,200.00 for this citation. 

Inspector Durrant testified that several of the eight contract workers were inside the mine 

when he arrived at the portal. Mr. Ramirez was using an arc welder to fabricate supports for the 

canopy. It was obvious to the inspector that no preshift examination had been performed. CW 

26 FMSHRC 926 
does not dispute that fact, but argues that the men were not inside the mine. Mr. Defa testified 

that all of the work that day was being performed under the canopy that was being constructed 

outby the mine portal and that the contract employees were not scheduled to work or travel 

underground that day. As a consequence, CW contends that a preshift examination was not 

required. 

I conclude that CW violated the safety standard. Inspector Durrant credibly testified that 

he observed miners working inby the underground portal. He observed that the plastic warning 

tape had been tom down. In addition, whether these contract employees were underground at the 

exact time the inspection party arrived is largely irrelevant. The portal was open and it is 

foreseeable that the contract employees would enter the mine at some point while performing 

their work. There was no demarcation under the canopy as to where the underground mine began 

and the surface canopy ended. Consequently, a preshift examination was required. 

I find that CW' s negligence was low, however. The inspection party consisted of Durrant 

and Defa. Durrant credibly testified that Defa was genuinely surprised to see contract employees 

at the No. 3 Mine. Defa testified that he had no idea they were at the mine that day. Defa 

subsequently checked at the mine office and discovered that the contract employees had not 

checked in when they arrived at the site that day, as required by CW. Advance had been working 

at the No. 3 mine off and on for about a week. In the past, CW assigned one of its own 

employees to perform a preshift examination when contract employees arrived. Since Defa did 

not know that Advance employees were there, no preshift examination had been performed. 

Charles Reynolds, an engineer with CW, was responsible for managing the work 

Advance was performing. He credibly testified that Advance was instructed to check in at the 

mine office each day prior to commencing any work. He testified that Advance failed to check in 

on August 29. In addition, Reynolds credibly testified that Advance was hired to perform work 

on the surf ace and was not engaged in work underground. Reynolds stated that Advance was 

constructing a canopy outside the mine portal and a housing for a fan outby the portal. As a 

consequence, the Secretary did not establish that the violation was the result of CW' s 

unwarrantable failure to comply with the safety standard. Unwarrantable failure is defined as 

aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 

FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as 

"reckless disregard," "intentional misconduct," "indifference," or the "serious lack of reasonable 

care." Id. 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991). I 

find that CW' s conduct does not reach that level of negligence. Indeed, I find that CW' s 

negligence can most accurately be characterized as less than ordinary negligence. It had 

procedures in place to ensure that preshift examinations were performed whenever anyone 

worked in or around the No. 3 mine. Advance failed to follow these procedures on August 29. 

This citation is modified to a section 104(a) citation with low negligence. 

Whether the violation was S&S is a closer issue. Inspector Durrant determined that the 

violation was S&S because the area had not been tested for oxygen or methane, the roof and ribs 

26 FMSHRC 927 
had not been examined, and the mine fan was not operating .. He believed that because the 

contract workers had limited underground experience it was reasonably likely that someone 

would suffer a serious injury as a result of the violation. 

Mr. Defa testified that the contract employees were not working underground but were 

working under a canopy outby the mine portal. He also testified that, even if they ventured inby 

the portal, they would have been protected by the steel plates that were installed between the H 

beams inby the portal. 

A violation is classified as S&S "if based upon 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." National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a 

four-part test for analyzing S&S issues. Evaluation of the criteria is made assuming "continued 

normal mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The 

question of whether a particular violation is S&S must be based on the particular facts 

surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). The Secretary must 

establish: (1) the underlying violation of the safety standard; (2) a discrete safety hazard, a 

measure of danger to safety, contributed to by the violation; (3) a reasonable likelihood that the 

hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in 

question will be of a reasonably serious nature. The Secretary is not required to show that it is 

more probable than not that an injury will result from the violation. U.S. Steel Mining Co., 18 

FMSHRC 862, 865 (June 1996). 

I find that the Secretary established that the violation was S&S. The Advance employees 

were not experienced miners. Because Advance employees are not familiar with the hazards 

present in a mine environment, they might easily overlook potential hazards. For example, the 

CW preshift examiner would have turned on the mine fan before allowing people to work in or 

around the portal to ensure that air quality met MSHA standards. The Advance employees did 

not tum on the fan. A preshift examination is especially critical in this circumstance because the 

qualified CW examiner would have made sure that the area was free of hazards. It is reasonably 

likely that, with continued normal mining operations, one of the Advance employees would be 

injured and that such injury would have been contributed to by the violation. The contract 

employees could have been injured by falling rock and they could have encountered excess 

methane or an oxygen deficiency. Such injuries or events would not have been likely if a CW 

mining employee had performed the required preshift examination. A penalty of $200.00 is 

appropriate. 

B. Order No. 7612554 

The inspector also issued Order No. 7612554 under section 104(d)(l) of the Mine Act 

alleging a violation of section 75.1106 of the Secretary's safety standards. The body of the 

citation states as follows: 

26 FMSHRC 928 
Contract miners were performing arc welding on the tunnel liner in 

the #3 portal without a means to detect methane. One miner 

testified that they had entered the mine between 9:00 and 9:30 AM 

and began the welding operations. The miner stated that they had 

been welding on and off until the authorized representative arrived. 

That would be between 45 and 75 minutes. They had been 

assigned to work in this area by Robert Putman, their supervisor. 

Mine management failed to insure that a certified individual was 

present with an approved device to test for methane. 

The inspector determined that the gravity was serious, that the violation was S&S, and that the 

negligence was high. The safety standard provides, in part, that "[ w ]el ding, cutting, or soldering 

with an arc or flame in other than a fireproof enclosure shall be done under the supervision of a 

qualified person who shall ... , immediately before and during such operations, continuously test 

for methane .... " The Secretary proposes a penalty of $1,600.00 for this order. 

Inspector Durrant testified that he observed one Advance employee, Mr. Ramirez, 

performing arc-welding in the portal and he determined that no tests had been conducted to 

determine if a dangerous level of methane was present. He believes that Ramirez was about 15 

to 20 feet inby the portal, at the third or fourth H beam. (Tr. 54). Durrant stated that the welding 

was not occurring inside the steel canopy that was being constructed outby the portal, but was 

occurring inside the mine. (Tr. 55). He testified that the standard has been interpreted to require 

a methane test prior to welding and a methane test at least every 20 minutes thereafter. (Tr. 44). 

Mr. Defa testified that Ramirez was welding the steel structure that was being constructed 

outby the portal. He states that the steel being welded at that time was part of this structure. He 

testified that CW' s own miners constructed the canopy that was underground in by the portal as 

they developed the entries. (Tr. 76). Advance was only contracted to construct that part of the 

canopy that was outby the portal. Defa testified that Ramirez was welding just outby the portal 

under the steel canopy. (Tr. 78). 

Defa' s testimony that Ramirez was welding on the canopy that was being constructed 

outside the mine is credible because it is consistent with the work that Advance was retained to 

do. Advance was not working on the steel structure underground so it is highly unlikely that 

Ramirez was welding on the steel structure that was already in place underground. Ramirez was 

welding two beams together on the outer canopy. The first sentence of section 75.1106 makes 

clear that the standard only applies underground. It states "[a]ll welding ... with arc or flame in 

all underground areas of a coal mine shall, whenever practicable, be conducted in fireproof 

enclosures." The second sentence of this standard, set forth above, modified the first sentence, 

and its requirements are also limited to the underground areas of coal mines. 

Inspector Durrant was very vague about where this welding was occurring in relation to 

the portal. It was his belief that Ramirez was underground, but his testimony was rather weak in 

26 FMSHRC 929 
this regard. It appears that he estimated distances from where he entered the outby canopy, yet he 

did not know the length of the outby canopy. (Tr. 54-55). I find that the Secretary failed to 

establish that the arc-welding that the inspector observed was occurring in the underground 

portion of the mine. Consequently, I vacate this citation. 

II. WEST 2004-148 

The Bear Canyon No. 1 Mine is an underground coal mine located near the No. 3 Mine. 

On July 9, 2002, Fred Marietti, an electrical inspector with MSHA, was inspecting the 

underground shop at the mine. He was accompanied by Cyril Jackson, the assistant mine 

foreman. Chris Grundvig, a mechanic and electrician, was in the shop at the time of the 

inspection. As the inspector was looking over the shop, he became concerned that a portable 

heater was not protected in the event of a ground fault because fuses rather than a circuit breaker 

were present. (Tr. 97, 130). Inspector Marietti 's examination of the heater led him to inspect the 

electrical system in the shop. As a result of this inspection, he issued numerous citations under 

section 104(a) of the Mine Act for alleged electrical violations in the shop. The Secretary 

proposed the penalties for these citations under her special assessment regulations at 30 C.F.R. § 

100.5. The underground shop has a concrete floor and the walls and ceiling are covered with 

fire-retardant material. (Tr. 371, 428). 

Power enters the mine at 12,470 volts. It is stepped down to 480 volts at the section 

power center (the "transformer" or "power center"). The power center is underground and is 

about 300 feet from the shop. (Tr. 357). A shielded power cable enters the shop from the 

transformer through a rigid metal conduit that runs down the wall of the shop to the 100 amp 

fused disconnect (the "fused disconnect"). This shielded cable contains five conductors as 

follows: three power wires, two ground wires, and a pilot wire. The pilot wire is part of the 

ground check system that will open the circuit breaker at the transformer in the event the circuit 

loses ground protection. Because the cable could not fit into the ridged metal conduit with the 

outer jacket, this outer jacket was removed when the circuit was installed. On the load side of 

the fused disconnect, eight branch circuits split off through a cable tray. Two of these branch 

circuits are spare circuits which were not in use and not at issue in this case. A transformer is 

attached to one of the branch circuits that steps down the voltage to 110 volts and 220 volts so 

that hand-operated equipment, such as drills, can be used in the shop. (Tr. 179-80). The 

remaining five branch circuits are used for the following equipment: a 460 volt welder, a 460 

volt grinder, a 460 volt air compressor, and two rubber-wheeled 460 volt wheel-mounted heaters. 

These circuits are diagramed at Exhibit G-1, pages 2 and 3. (Tr. 105-117, 119-122). 

During his inspection, Inspector Marietti opened the fused disconnect box and discovered 

that the two ground wires that entered the shop through the rigid metal conduit were not attached 

to the grounding lug inside the box. Instead, they were taped up with electrical tape. (Tr. 117-

18). He testified that he noticed this condition as soon as he opened the box. (Tr. 132). The 

pilot wire for the ground monitor system was properly connected at the fused disconnect box. 

26 FMSHRC 930 
A. Citation No. 7612350 

Based on the condition he observed in the box for the fused disconnect, the inspector 

issued Citation No. 7612350 under section 104(a) of the Mine Act alleging a violation of section 

75.701 of MSHA's safety standards. The body of the citation states: · 

The 480 V AC, three phase, 100 amp fused Main Disconnect metal 

enclosure that can become "alive" through failure of insulation or 

by contact with energized parts shall be grounded by methods 

approved by the authorized representative of the Secretary. The 

enclosure was not grounded by a solid connection to the resistance 

ground conductors provided by the energized power cable 

supplying power to the enclosure. The two ground conductors 

were taped together with insulated tape and laying in the enclosure, 

not connected to a grounding lug. There were ground conductors 

to six other metal enclosed electric equipment connected in the 

main enclosure relying on a ground system from these resistance 

ground conductors. There was some grounding provided due to 

the metallic shielding on the 2/0 power cable where it had the outer 

jacket removed and pulled through a rigid conduit and touching the 

ground conductors through skin effect along the cable to the 

transformer feeder circuit breaker. Miners touch the enclosure 

parts when operating fused disconnect. 

The inspector determined that the gravity was serious, that the violation was S&S, and that the 

negligence was high. The safety standard provides that "[m]etalic frames, casings, and other 

equipment that can become 'alive' through failure of insulation or by contact with energized 

parts shall be grounded by methods approved by the authorized representative of the Secretary." 

The Secretary proposes a penalty of $1,400.00 for this citation. 

1. Summary of the Evidence 

Inspector Marietti testified that the safety standard requires that metal frames of electric 

equipment, including electrical boxes, must be properly grounded. (Tr. 136-37). He stated that 

this electrical box could have become energized in the event of a fault in the circuit because the 

box was not properly grounded. If the circuit were grounded at the box, the circuit breaker at the 

transformer would trip in the event of a fault and the electrical box would not become energized. 

The inspector testified that with the grounding wires disconnected, the grounding circuit was 

open, which would not allow the current to flow back to the transformer in the event of a fault. 

He stated that a "resistance ground system" is what MSHA requires under this safety standard. 

(Tr. 138-39). Thus, makeshift grounding, such as through water pipes, is not approved. 

26 FMSHRC 931 
The outer jacket for the cable coming into the shop from the transformer had been 

stripped off when it was inserted into the rigid metal conduit. The individual wires within the 

cable twist like the strands of a rope. As a consequence, the grounding wires and the metal 

shielding for the cable were making contact with the rigid metal conduit. Inspector Marietti 

testified that using the metal conduit and cable shielding is not an approved method of grounding 

the circuit. The contact between the metal conduit and the cable shielding or the grounding 

conductors may not be sufficient or effective enough to protect miners from energized equipment 

if there were to be a fault. 

Inspector Marietti testified that Mr. Grundvig, who performed the weekly electrical 

examinations in the shop, never opened the fused disconnect box during his examinations. 

Marietti said that he could see that the ground wires were not connected as soon as he opened the 

box because it was obvious. He also stated that Mr. Defa told him that the condition must have 

existed since the underground shop was constructed 15 years earlier. (Tr. 148). The inspector 

testified that he was amazed that nobody had detected this problem in that 15-year period. 

Inspector Marietti issued Imminent Danger Order No. 7612349, under section 107(a) of the 

Mine Act, along with the citations at issue in this case. He also issued other citations that were 

not contested by CW. Inspector Marietti determined that it was highly likely that an accident 

would occur. (Tr. 149). He determined that the violation should be designated as S&S because, 

based on the type of work being done in the shop, it was reasonably likely that someone would be 

seriously injured as a result of the violation. (Tr. 142-49). 

During an MSHA health and safety conference with CW on June 12, 2003, the gravity of 

the citation was lowered with the following language: 

There was grounding provided through cable shielding and the 

rigid conduit. Tests indicated that the system was grounded. 

However, this is not an acceptable ground because this condition 

has the potential of failure. The gravity is reduced to reasonably 

likely. 

Cyril Jackson accompanied Inspector Marietti on the inspection of the shop. He testified 

that when the fused disconnect box was opened, he had to pull the ground wires out from behind 

other cables to see that the ends were not connected to the grounding lug. (Tr. 329). He states 

that only then did the inspection party realize that the ends of the ground wires were taped up. 

Mr. Grundvig testified that the ends of the ground wires were not visible until they were pulled 

out from behind other components in the box. (Tr. 379). At that point, the inspector wanted to 

find out why the breaker at the power center had not tripped. Marietti declared that this 

condition created an imminent danger so they went to the transformer and turned off the power. 

According to CW' s witnesses when the power was turned back on, the circuit breaker 

stayed set, in the closed position. Jackson testified that Marietti began to troubleshoot by 

unplugging the cable coupler at the transformer and examined the plug, which was not shorted. 

26 FMSHRC 932 
The inspector then tested the circuit breaker. First, he tested the breaker with the plug out and it 

would not set. Next, Marietti plugged the cable coupler back in, set the circuit breaker and it 

remained set. When he pulled the plug out, the circuit breaker tripped. The prong on the plug 

for the pilot wire is the shortest so that it will disconnect first, and the prong for the ground is the 

longest. (Tr. 372). The breaker should trip as soon as the prong for the pilot wire disengages. 

Jackson testified that they all went to the office, where Kenny Defa asked whether the 

breaker tripped when the pilot wire was disconnected at the fused disconnect box. The circuit for 

the shop was equipped with a ground monitoring system which is designed to detect a problem in 

a circuit's grounding system. Low voltage power travels from the transformer to the fused 

disconnect box through the pilot wire. Ordinarily, this power would travel back to the 

transformer via the grounding wires. If the grounding wires are disconnected, the ground 

monitoring system will detect this break in the grounding circuit and the circuit breaker will trip. 

The ground monitoring system did not trip the circuit breaker in this instance even though the 

ground wires were not connected at the grounding lug on the fused disconnect box. The reason 

why the circuit breaker did not trip is contested by the parties. Inspector Marietti testified that, in 

this instance, the ground wire and the pilot wire were touching on the cable coupler (plug) at the 

transformer. (Tr. 153-54). Thus, the ground monitoring circuit was short-circuited where the 

cable was attached to the transformer at the cable coupler. CW disagrees with this assessment. 

After their discussion with Defa, Marietti, Grundvig, and Jackson went back to the shop 

to test the circuit with a meter to determine if it was grounded. The meter showed that the circuit 

was grounded. (Tr. 331, 357, 385). They observed that the pilot wire was properly connected at 

the fused disconnect box. Jackson testified that when the pilot wire was disconnected from the 

lug on the box, the circuit breaker tripped. (Tr. 333). Jackson testified that he is absolutely 

certain that when the pilot wire was disconnected at the fused disconnect box, the circuit breaker 

tripped to an open position. (Tr. 355). Grundvig testified that the power went off in the shop 

when the pilot wire was lifted from the box. (Tr. 382-83, 393). When Grundvig went to the 

breaker to try to reset it, it would not set because the pilot wire had been disconnected. (Tr. 383). 

When the pilot wire was reconnected to the box, the circuit breaker set properly. Mr. Defa 

testified that he was told that the breaker tripped when the pilot wire was lifted from its bracket 

on the fused disconnect box. (Tr. 432-33). 

Jackson further testified that when the power cable entering the shop was installed, the 

outer jacket was removed where it passed through the metal conduit. The shielding and the two 

grounding wires made contact with the metal conduit. (Tr. 336, 385). The cable was very tight 

inside the metal conduit. (Tr. 356). The metal conduit was screwed into a metal plate which was 

bolted to the top of the fused disconnect box. (Tr. 337). As a consequence, when Inspector 

Marietti used a meter to test the ground, the meter showed that the circuit was grounded, even 

though the grounding wires were not connected at the fused disconnect box in the shop. Jackson 

concluded that, although this installation did not comply with the safety standard, the circuits in 

the shop were effectively grounded. Mr. Jackson, who has been certified through the College of 

Eastern Utah as a mine electrician, testified that the violation did not present a hazard to miners. 

26 FMSHRC 933 
(Tr. 340). Mr. Grundvig testified that because the metal conduit was about four feet long with an 

elbow, good contact had been established between the uninsulated grounding wires and the 

conduit. (Tr. 392). 

Jackson testified that the shop was constructed about 15 years ago and the electrical 

system had not been changed since that time. He also stated that CW had not experienced any 

ground faults or electrical injuries in the shop since the shop was constructed. Jackson also 

stated that MSHA inspectors had inspected the shop in the past and no citations had been issued 

concerning the manner in which the electrical system was wired or grounded. (Tr. 339). 

Mr. Jackson further testified that he met with MSHA officials in Price, Utah, including 

Inspector Marietti, to discuss the electrical citations. When Marietti mentioned that the pilot wire 

was shorted at the cable coupler (plug) at the power center for the shop, Jackson "reminded him" 

that a plug for a different circuit at the power center was shorted out, not the plug that controlled 

the circuit for the shop. (Tr. 355). Jackson also reminded him that he issued a citation for that 

condition. Jackson testified that Inspector Marietti replied that it was possible that he was 

confused about which plug at the power center had a problem. Grundvig and Defa testified 

similarly. (Tr. 411-12, 435). Jackson testified that he is absolutely certain that the plug at the 

power center for the shop was correctly wired and was not shorted out in any way. (Tr. 355-56, 

362). Grundvig also testified that when the plug was examined by the inspection party, there was 

nothing wrong with it. (Tr. 384). Grundvig testified that another plug at that same transformer 

was "messed up pretty bad," but it was not the plug for the shop. (Tr. 412). Jackson further 

stated that Inspector Marietti would have written a citation for the faulty plug if, in fact, it was 

not correctly wired. On rebuttal, Inspector Marietti testified that he was not at that meeting in 

Price and that, although other plugs were also poorly wired at the transformer, he remembers that 

the shielding for the cable to the shop was touching the pilot wire in the plug for the shop and 

that he immediately corrected the problem. (Tr. 455-457). 

Arnold Pratt, a consulting professional electrical engineer, testified for CW. He testified 

that, although the cited condition violated the standard, the violation did not create a safety 

hazard. He reached this conclusion based on the fact that the bare shield on the power conductor 

entering the shop made a tight connection with the metal conduit through which it passed. (Tr. 

245, 248; Ex. R-1). He believes that this condition existed since the shop was built. As a 

consequence, the cable was adequately grounded. This fact is supported by the grounding test 

that was performed which showed that there was a "good low resistance connection between the 

... shield on the power conductor and the conduit." Id. He believes that the shielding had 

enough "ampacity" to adequately ground the circuit. (Tr. 299-300, 318-19). He stated that his 

conclusion is supported by the fact that this condition had existed for at least 15 years without 

incident. (Tr. 249). Electrical tests would not have revealed the problem because grounding was 

provided through the conduit. Pratt contends that if, at any time during this 15-year period, 

grounding through the conduit had failed, the breaker would have tripped and the problem would 

have been detected during troubleshooting. 

26 FMSHRC 934 
2. Analysis 

As discussed above, the parties do not dispute that the cited condition violated section 

75.701. The ground wires from the power center were not connected to the grounding lug on the 

fused disconnect box. CW contends that the violation was neither serious nor S&S. The 

Secretary contends that it was reasonably likely that someone would be seriously injured by the 

cited condition. For the reasons discussed below, I find that the violation was somewhat serious 

but that it was not S&S. 

Inspector Marietti is a highly qualified and experienced electrical inspector. Witnesses 

for CW testified that he has been very helpful in suggesting improvements to the electrical 

systems at the mine. He provided instruction on installing proper electrical installations to abate 

the citations he issued. Much of the testimony and evidence presented by the Secretary was very 

technical in nature. I have only briefly summarized the evidence presented and I have not 

discussed all of the conflicts in the evidence because I do not believe that it is necessary to do so. 

Whether the pilot wire was shorted out at the plug at the power center is largely irrelevant. I find 

that Inspector Marietti discovered that the cable shielding was not connected to the plug at the · 

transformer in a proper manner. As a consequence, some of the thin stray wires of the shielding 

were touching the pilot wire. (Tr. 455-457). Thus, the ground monitoring system was short 

circuited. I find that Marietti removed the stray shielding wires from the pilot wire before the 

troubleshooting described by Jackson began. Once the faulty condition in the plug was 

corrected, the ground monitoring system still did not trip the circuit breaker because the ground 

wires were connected to the fused disconnect box via the metal conduit. Because this conduit 

was connected to the fused disconnect box, the power in the ground monitoring circuit could 

travel back to the transformer through the grounding wires in the cable via the metal conduit. I 

credit the testimony of Jackson and Grundvig concerning the results of troubleshooting that 

occurred after Inspector Marietti fixed the plug. When Marietti tested the ground, his meter 

showed the fused disconnect box was grounded. 

I find that the Secretary did not establish that the violation was S&S. The fused 

disconnect box was effectively grounded through the metal conduit. I credit the testimony of 

Jackson that the cable was snug within the conduit. The bare ground wires and the shielding for 

the cable were in direct contact with the conduit. Given that this condition had existed for about 

15 years without incident, it is highly unlikely that the ground would have failed assuming 

continued normal mining operations. Although this connection violated the safety standard, I 

find that there was not a reasonable likelihood that the hazard contributed to by the violation 

would result in an injury. If the conduit became loose from the fused disconnect box, Mr. 

Grundvig would have detected that condition during his normal examinations in the shop. There 

was a slight safety hazard, however, because the grounding connection in the metal conduit could 

deteriorate over time. 

I find that the violation was the result of CW' s high negligence. The ends of the ground 

wires were not attached to the lugs in the fused disconnect box and these ends were taped up. The 

26 FMSHRC 935 
failure to connect the ends of the ground wires when the box was initially installed demonstrates 

a high degree of negligence. It should have been obvious to the miner installing the box that the 

ground wires were taped up and that they needed to be connected to the grounding lug. CW 

argues that, because the system was grounded through the conduit, the violation was never 

detected and its failure to detect the violation demonstrates low negligence. I base my negligence 

finding on the failure to properly wire the box when it was installed. A penalty of $800.00 is 

appropriate for this violation. 

B. Other Citations under Section 75.701 

Inspector Marietti issued six other citations under section 75.701. The citations related to 

each of the active branch circuits. For example, Citation No. 7612352 states, in part: 

The 480 VAC, three phase, 5 HP, 7 amp bench grinder metal 

enclosure that can become 'alive' through failure of insulation or 

by contact with energized parts shall be grounded by methods 

approved by the authorized representative of the Secretary. The 

enclosure was not grounded to a solid connection to the resistance 

ground conductors provided by the energized power cable 

supplying power to the 100 amp Main Disconnect enclosure. The 

ground conductors were taped together with insulated tape and 

laying in the enclosure, not connected to a grounding lug. The 

grinder ground conductor was connected in the main enclosure 

relying on the ground system from these resistance ground 

conductors that were not solidly connected providing a mechanical 

and electrically efficient connection. There was some grounding 

provided due to the metallic shielding on the 210 power cable 

where it had the outer jacket removed and pulled down through a 

rigid conduit and touching the ground conductors through skin 

effect along the cable to the transformer feeder circuit breaker. 

There was rigid metal conduit to the grinder from the main 

disconnect . . . . Miners touch the enclosures when working with 

equipment. 

This citation is merely stating that, although a grounding wire connected the grinder to the fused 

disconnect box, the ground wires from the transformer were not connected at that box, so the 

grinder circuit was not properly grounded with resistance ground conductors. (Tr. 155). 

Inspector Marietti issued similar citations for each piece of electrical equipment in the shop. 

(Citation Nos. 7612351 - 7612356) (Tr. 160-82). None of these citations would have been issued 

if the grounding wires had been attached to the lug in the fused disconnect box. In each instance, 

the gravity was lowered on June 26, 2003, following a safety and health conference. The 

citations were designated as S&S and CW' s negligence was listed as high. Inspector Marietti 

26 FMSHRC 936 
testified that the violative conditions and the hazards presented were the same for each piece of 

equipment (Tr. 177-78). The Secretary proposes a penalty of $1,400.00 for each citation. 

Mr. Jackson testified that all of these citations relate back to the fact that the ground wires 

were not connected to the fused disconnect box. For the same reasons as discussed above, he 

does not believe that these conditions created a hazard. As stated above, no miner had ever been 

shocked as a result of the conditions described in the citations. He believes that these citations 

repeat the same condition for each piece of equipment in the shop. Mr. Grundvig' s testimony 

supports Jackson's testimony. (Tr. 393-98). 

Mr. Pratt testified that the ground connection between the welder, grinder, and the other 

equipment in the shop was properly made to the fused disconnect. (Tr. 250-55). It was the fused 

disconnect that was not properly grounded as set forth in Citation No. 7612350. The system was 

grounded because the fused disconnect was grounded through the metal conduit. Thus, no 

hazard was presented by the conditions described in these citations. In addition, because there 

were ground wires running from the fused disconnect to each piece of equipment on these branch 

circuits, there was no separate violation for each branch circuit. The only violation was at the 

fused disconnect where the grounding wire from the power center was not attached at the 

grounding lug. 

The first issue presented by these citations is whether they are unlawfully duplicative. 

The Commission has addressed this issue in cases where the Secretary has issued several 

citations under different safety standards for the same condition. The Commission held that 

"citations are not duplicative as long as the standards involved impose separate and distinct 

duties on an operator." Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003 (June 1997) (citations 

omitted). All six of these citations were abated when CW abated Citation No. 7612350. 

Inspector Marietti issued a separate citation for each piece of electrical equipment in the shop. 

Each piece of equipment was properly grounded to the fused disconnect box, but the fused 

disconnect box was not properly grounded to the transformer, as discussed above. All of these 

citations relate back to the violation in Citation No. 7612350. Nevertheless, I find that it was 

within the Secretary's enforcement discretion to issue a separate citation for each piece of 

equipment because each piece of equipment was not properly grounded back to the transformer. 

Grounding back to the transformer is necessary in order for the circuit breaker to trip. A fault at 

the bench grinder, for example, could injure a miner using the bench grinder because of the lack 

of grounding to the transformer. 

My findings with respect to negligence, gravity, and S&S are the same for these citations 

as for Citation No. 7612350. The equipment was, in fact, grounded because of the way the 

power cable entered the shop through the fixed metal conduit. As a consequence the violations 

were not S&S and were not particularly serious. CW's negligence was high. Because the 

violative condition was fully addressed in Citation No. 7612350 and each citation only affected 

one piece of equipment, I find that a penalty of $200.00 for each citation is appropriate for these 

26 FMSHRC 937 
violations. I find that a cumulative penalty of $2,000 for the violations of section 75.701 is 

appropriate. 

C. Citation No. 7612358 

Inspector Marietti issued Citation No. 7612358 under section 104(a) of the Mine Act 

alleging a violation of section 75.902 of MSHA's safety standards. The body of the citation 

states: 

The 480 V AC, three phase, 55 amp welder and fused disconnect 

metal enclosures were not provided with a fail safe ground check 

circuit to monitor continuously the resistance ground system circuit 

to assure continuity which ground check circuit shall cause the 

circuit breaker to open when either the ground or pilot check is 

broken. The pilot conductor from the feeder circuit breaker at the 

transformer supplying power to the main enclosure from the 

resistance grounded system was connected in parallel to six other 

circuits in use and two others that had the load cables removed but 

the pilot conductors were still hanging open in the fused disconnect 

enclosures. These circuit grounds and pilot conductors were in 

parallel and if a ground opened as in the one fused disconnect that 

was removed from the ground check circuit that was opened, it 

would not open the circuit breaker. The parallel circuitry would 

require that all the individual grounds would have to be open to 

open the feeder circuit breaker. This would create a hazard to the 

miners for no resistance ground protection if the enclosure became 

alive from a fault. Miners touch the enclosed parts when operating 

the fused disconnect. 

The inspector determined that the gravity was serious, that the violation was S&S, and that the 

negligence was high. The safety standard provides, in pertinent part, that "[l]ow and mediumvoltage resistance grounded systems shall include a fail-safe ground check circuit to monitor 

continuously the grounding circuit to assure continuity which ground check circuit shall cause the 

circuit breaker to open when either the ground or pilot check wire is broken .... " The Secretary 

proposes a penalty of $325.00 for this citation. 

Pilot wires, which make up part of the ground check monitoring system, carry low 

voltage current. As described above, this current flows through the pilot wires to the equipment, 

then back through the grounding wires to the circuit monitor. (Tr. 185-86). If the low voltage 

power in this ground monitoring circuit is interrupted for any reason, the circuit breaker for the 

circuit supplying power to the equipment is opened, thereby de-energizing the power. The power 

in the ground monitoring circuit can be interrupted if the ground wire is broken or the pilot wire 

is broken. The citation states that the pilot wires to the welder and the other equipment in the 

26 FMSHRC 938 
shop were incorrectly installed. As installed, the grounding system for each piece of equipment 

in the shop would have to fail before the circuit breaker would open. For example, if the ground 

wire going from the fused disconnect to the welder were to break or fail, the ground check 

monitoring system would not detect this failure. 

An easy way to visualize the issue is to think of the two types of Christmas tree lights. 

Most lights are now wired in parallel so that if one light fails, the entire string of lights does not 

go out. Older Christmas tree light strings were wired in series with the result that if one light 

burned out, the entire string of lights went out. In the case of this ground check monitoring 

system, the pilot wires should have been wired in series so that if there were to be a problem 

anywhere in the system, the circuit breaker would to cut the power. The citation alleges that the 

ground check monitoring system was not fail-safe because the circuit breaker would not open in 

the event the pilot wire or ground wire for the welder broke. 

Inspector Marietti determined that the negligence was high because CW should have done 

a better job of making sure that the electrical system in the shop was installed in accordance with 

the requirements of the standard. (Tr. 190-91). During an MSHA health and safety conference 

with CW on June 12, 2003, the gravity of the citation was lowered with the following language: 

A ground circuit, between the 100 amp disconnect and the 

stationary electrical equipment, was provided by a properly 

connected internal conductor and by rigid metal conduit attached to 

the frames. Tests indicated that the system was grounded. 

However, because the ground monitor circuits were wired in 

parallel ... , the monitor would not open if one ground circuit lost 

continuity. The condition is violative but not reasonably likely to 

cause an accident resulting in injury. The citation gravity was 

reduced to non-S&S. 

Mr. Jackson agrees that the pilot wire was not properly installed. (Tr. 345). He does not 

believe that this condition created a hazard. This condition had existed since the shop was 

constructed without creating any problems. Mr. Grundvig also confirmed that the pilot wires to 

the equipment were not wired correctly. (Tr. 378-79, 398). 

Mr. Pratt testified that this condition violated the safety standard but it did not present a 

hazard. (Tr. 255-56; Ex. R-1). A hazard was not present because the pilot wire had a good 

connection to all of the circuits and therefore also acted as a ground wire by itself. Thus, if the 

grounding system ceased to function, the pilot wires would provide adequate ground. (Tr. 257-

58). The pilot wire had a sufficient ampacity to act as a ground wire. Thus, two grounding 

systems would have to be broken in order for a hazard to be presented by the violation. 

The parties do not dispute that this citation should be affirmed. The Secretary modified 

the citation during a conference. I find that the gravity was somewhat serious and that it was not 

26 FMSHRC 939 
S&S. I accept the evidence presented by CW that the violation did not present a significant 

safety hazard. CW' s negligence was high when it improperly installed the electrical system in 

the shop. I find that a penalty of $150.00 is appropriate for this violation. 

D. Other Citations under Section 75.902 

Inspector Marietti issued a total of six citations under this standard, one for each of the 

six active branch circuits in the underground shop. (Citation Nos. 7612358, 7612359, 7612360, 

7612421, 7612422, 7612423) (Tr. 191-202). Each citation contains the same allegations with 

respect to each separate piece of equipment in the shop. At the MSHA conference, three of the 

citations were modified to non-S&S citations and the gravity of the heater citations was reduced. 

It should be noted, that when CW abated the citations at issue in this case, it completely 

redesigned the electrical circuits in the shop. With respect to the ground check monitoring 

system, it installed a separate ground monitor for each branch circuit so that if there were a 

failure in the resistance ground circuit for the welder, for example, it would shut down the power 

to the welder. As a consequence, the pilot wires were not connected in series because it installed 

a separate and an independent ground monitoring system for each branch circuit. (Tr. 197-98). 

Mr. Jackson testified that the conditions cited in these citations were identical to the 

conditions cited in the previous citation. Grundvig agrees. (Tr. 400-05). Mr. Pratt testified that 

the conditions described in these citations would not present any hazard for the same reasons as 

described above. (Tr. 259-62). I find that each citation presented a discrete safety hazard with 

respect to the specific piece of equipment listed. Consequently, I find that the citations are not 

duplicative. I also find that the violations were somewhat serious and that CW's negligence was 

high. I find that a penalty of $150.00 for each citation is appropriate for these violations. I find 

that a cumulative penalty of $900.00 for the violations of section 75.902 is appropriate. 

E. Citation No. 7612424 

Inspector Marietti issued Citation No. 7612424 under section 104(a) of the Mine Act 

alleging a violation of section 75.601 of MSHA's safety standards. The body of the citation 

states, in part: 

The 480 V AC, three phase, No. 1 and No. 2 portable wheeled floor 

heaters trailing cables were not provided with a circuit breaker with 

instantaneous short circuit protection as required. The No. 1 with 

an A WG 8/5 trailing cable was protected with a 20 amp fuse. No. 

2 with an A WG 10/5 trailing cable was protected with a 10 amp 

fuse. The cables get strung out on the floor in the shop with heavy 

metal and materials being moved and used that can damage the 

trailing cables. 

26 FMSHRC 940 
The inspector determined that the gravity was serious, that the violation was S&S, and that the 

negligence was high. The safety standard provides, in pertinent part, that "[s]hort circuit 

protection for trailing cables shall be provided by an automatic circuit breaker or other no less 

effective device approved by the Secretary of adequate current-interrupting capacity in each 

ungrounded conductor." The Secretary proposes a penalty of $450.00 for this citation. 

During an MSHA health and safety conference with CW on June 12, 2003, the gravity of 

the citation was lowered with the following language: 

Although not provided with circuit breakers, the trailing cables for 

the portable shop heaters were protected by correctly sized fuses. 

Also, the circuits were protected by the circuit breaker at the power 

center. The condition described in the citation is not likely to 

cause an accident resulting in serious injury. The citation gravity 

was reduced to non-S&S. 

Inspector Marietti determined that the heaters were portable equipment so that the power 

cables were trailing cables within the meaning of the safety standard. (Tr. 203). Section 75.601 

requires all trailing cables be protected with an automatic circuit breaker that provides 

instantaneous short circuit protection. Inspector Marietti testified that trailing cables are required 

to be protected because they are subject to damage while being pulled around. (Tr. 205). The 

cables for the heaters were protected by fuses. Fuses do not meet the requirement of the standard 

because they do not provide instantaneous protection. A fuse will provide some degree of 

protection, but it will not automatically open the electrical circuit when a fault occurs. 

(Tr. 206). A fuse will only open a circuit after a period of time based on the design specifications 

of the fuse. Inspector Marietti does not know the amount of time it would take before these 

particular fuses would open the circuit in the event of a fault. (Tr. 233). The inspector testified 

that, in the alternative, CW could have relied on the circuit breaker at the power center for the 

shop, since the cables for the heaters were simply branch circuits of the shop circuit. To be 

effective, however, the circuit breaker would have to be set at 150 amps magnetic to provide the 

degree of protection required by the standard. (Tr. 208). In this case, the potentiometer at the 

circuit breaker for the shop was set at the maximum number of amps, which was considerably 

above 150 amps. (Tr. 168-70, 208-09). As a consequence, the circuit breaker would not trip in 

the event of a fault in the cables for the heaters. 

Mr. Jackson testified that the fuses were installed when the shop was constructed. (Tr. 

350). He stated that this condition has never created any problems. He does not believe that this 

condition created a shock hazard. He believes that the fuses used did not have delay and, if they 

did, it would not be enough to notice. (Tr. 351). Grundvig admitted that fuses would not 

disconnect all phases at once since each phase has a separate fuse. (Tr. 405). 

Mr. Pratt testified that the condition violated the safety standard but that no safety hazard 

was presented. (Tr. 262). He based this conclusion on the fact that the circuit breaker at the 

26 FMSHRC 941 
power center would adequately protect the circuit. In addition, he testified that it takes a fuse 

only a hundredth of a second longer to blow than a circuit breaker to open a circuit. (Tr. 264). 

I find that the Secretary established a violation of the safety standard. The citation was 

modified to a non-S&S citation at the MSHA conference. I find that, because the potentiometer 

at the circuit breaker was out of adjustment, the circuit breaker might not provide adequate 

protection. The potentiometer adjusts the sensitivity of the circuit breaker. I credit the testimony 

of Inspector Marietti on this issue. I find that the citation was moderately serious. I also find that 

CW' s negligence was high because it improperly installed fuses rather than circuit breakers in the 

two heater branch circuits. This violation was obvious. The Secretary's proposed penalty of 

$450.00 is appropriate for this violation. 

F. Citation No. 7612425 

Inspector Marietti issued Citation No. 7612425 under section 104(a) of the Mine Act 

alleging a violation of section 75.900 of MSHA' s safety standards. The body of the citation 

states, in part: 

The energized 480 V AC, three phase circuits for the welder, bench 

grinder, air compressor, No. 1 and No. 2 portable wheeled floor 

heaters and 5 KV A transformer were not provided with a circuit 

breaker to provide undervoltage, grounded phase, short circuit and 

overcurrent [protection]. They were provided with fused 

disconnects. 

The inspector determined that the gravity was serious, that the violation was S&S, and that the 

negligence was high. The safety standard provides, in part, that "[l]ow- and medium-voltage 

power circuits serving three-phase alternating current equipment shall be protected by suitable 

circuit breakers of adequate interrupting capacity .... " The Secretary proposes a penalty of 

$325.00 for this citation. 

During an MSHA health and safety conference with CW on June 12, 2003, the gravity of 

the citation was lowered with the following language: 

Although not provided with separate circuit breakers, the circuits 

were protected by correctly sized fuses. Also, the circuits were 

protected by the circuit breaker at the power center. The condition 

described in the citation is not likely to cause an accident resulting 

in serious injury. The citation gravity was reduced to non-S&S. 

Inspector Marietti testified that the branch power circuits in the shop were low voltage 

and were covered by the standard. These circuits were protected by fuses rather than circuit 

breakers. Section 75.900 goes on to state that the required circuit breakers "shall be equipped 

26 FMSHRC 942 
with devices to provide protection against undervoltage, ground phase, short circuit, and 

overcurrent." The inspector testified that fuses cannot provide undervoltage and ground fault 

protection. (Tr. 212). He further stated that the circuit breaker at the power center could have 

provided the necessary protection if it were properly adjusted. In this case, however, the 

potentiometer was "set all the way up and the ground fault wasn't working." (Tr. 212). 

Jackson testified that if a fuse blew out one of the phases, the motors would stop and 

hum. (Tr. 352). The motor might get a little hot, but the condition would likely trip the circuit 

breaker at the power center. He does not believe that the conditions described in this citation 

posed a hazard to miners. Grundvig testified that he had never opened the fuse boxes, so he did 

not know what type of fuses was used. (Tr. 407). He believes that if there had been a fault of 

any kind, the breaker at the power center would have tripped. 

Mr. Pratt testified that there was some protection provided by the circuit breaker at the 

power center. (Tr. 264 ). If you had a short circuit in one of these pieces of equipment, there 

might not be enough current to trip the circuit breaker, but a fuse would blow. He did not see a 

danger presented in the conditions set forth in the citation. He admitted, however, that when a 

fuse blows, only one phase may be opened with the result that equipment could have current 

running through it. (Tr. 265). Because most people are used to circuit breakers, which cut off all 

power when tripped, they may troubleshoot equipment without knowing that it is still hot. 

I find that the Secretary established a violation. The citation was modified to a non-S&S 

citation at the MSHA conference. I find that, because the potentiometer at the circuit breaker 

was out of adjustment, the circuit breaker might not provide adequate protection. I credit the 

testimony of Inspector Marietti on this issue. I find that the citation was moderately serious. I 

also find that CW' s negligence was high because it improperly installed fuses rather than circuit 

breakers in these circuits. This violation was obvious. The Secretary's proposed penalty of 

$325.00 is appropriate for this violation. 

G. Citation No. 7612426 

Inspector Marietti issued Citation No. 7612426 under section 104(a) of the Mine Act 

alleging a violation of section 75.512 ofMSHA's safety standards. The body of the citation 

states, in part: 

The welder fused disconnect, 480 V AC three phase rated at 480 for 

30 amp fuses maximum was provided with two 60 amp fuses and 

one 50 amp fuse. The physical size is bigger around than a 30 amp 

and the holders were spread open to the point that the holder was 

not making adequate contact with the fuse. The A phase had been 

forced in breaking the insulated load side fuse holder. The holder 

was not bolted to the enclosure. The bench grinder fused 

disconnect was rated for 15 amp fuses at 480 V AC, there were 30 

26 FMSHRC 943 
amp fuses installed. These two enclosures were not being 

maintained in safe operating condition. This with all the [other] 

violations ... contribute to an inadequate weekly electrical 

examination. The examination was conducted on 07 /02 and 

previous weeks. The individual equipment was not identified ... 

in the book provided. The examiner said, "I look to see if covers 

are on and any cables are cut, I have not checked inside the panels 

or for anything else." 

The inspector determined that the gravity was serious, that the violation was S&S, and that the 

negligence was high. The safety standard provides, in part, that "[a]ll electric shall be frequently 

examined, tested, and properly maintained by a qualified person to assure safe operating 

conditions." The standard also provides that when a potentially dangerous condition is found, 

the equipment shall be removed from service and a record of electrical examinations must be 

kept. The Secretary proposes a penalty of $2,000.00 for this citation. 

Inspector Marietti testified that he issued this citation based on all of the other electrical 

citations he issued in the underground shop. Marietti stated that the person who most recently 

performed the weekly electrical examinations, Mr. Grundvig, told him that he was never taught 

how to perform electrical examinations. (Tr. 213). The inspector testified that Mr. Grundvig 

told him that he never opened electrical boxes to examine the fuses or other components. 

Grundvig simply made sure that the covers for electrical boxes were closed and that electrical 

cables entering the boxes were not damaged. Marietti testified that such a cursory examination is 

inadequate under the standard. (Tr. 218). Many of the fuses inside the electrical boxes were of 

an incorrect size. For example, the fused disconnect for the welder had a rating of 30 amps, but 

CW used 50 and 60 amp fuses. The holder for the 50 amp fuse had to be spread out to such an 

extent that it was not longer providing adequate electrical contact. (Tr. 215). Inspector Marietti 

testified that if an electrical examiner had opened the cover for the fuse box, the condition would 

have been obvious. He further stated that he issued 78 electrical citations and 7 electrical orders 

of withdrawal during his inspection of the mine. (Tr. 220). The inspector testified that, although 

he had previously conducted electrical inspections at the mine, he had never inspected the 

underground shop. (Tr. 223). Marietti did not know if the shop had been subject to any 

comprehensive MSHA electrical inspections in the past 15 years. 

Inspector Marietti testified that the violation was serious and S&S, because if these 

conditions were allowed to continue, it was highly likely that someone would be seriously 

injured. CW was highly negligent because the examinations were totally inadequate to comply 

with the requirements of the safety standard. 

Mr. Grundvig testified that he performed a general safety inspection of the shop every 

week. (Tr. 386). He examined each piece of equipment in the shop for safety defects. He 

looked for slip and fall hazards, fire hazards, and he checked the ventilation. He testified that he 

did not open electrical boxes because CW had never experienced any electrical problems in the 

26 FMSHRC 944 
shop. (Tr. 387, 409). Grundvig testified that other MSHA inspectors looked at his examination 

books without advising him that his examinations were insuffident. (Tr. 410). 

Mr. Pratt testified that this condition "was really scary" when he first heard about it. (Tr. 

266). He was concerned about using a 30 amp disconnect with 60 amp fuses. As a consequence, 

he performed an experiment using the same types of fuses. (Tr. 266-76). As a result of this 

experiment, he concluded that the condition did not present a real hazard. (Tr. 278). There was 

enough contact between the fuse and the bent fuse holder to provide adequate protection. He 

admitted that he did not consider other aspects of concern to Inspector Marietti. 

I find that the Secretary established a violation of the safety standard. I also find that the 

violation was S&S. The weekly examinations that were being conducted in the shop were 

completely inadequate to discover latent safety defects. CW' s failure to conduct competent 

electrical examinations created a reasonable likelihood that the hazard contributed to will result 

in an injury of a reasonably serious nature. I also find that CW's negligence was high. This 

violation was obvious. Inspector Marietti discovered numerous violations during his inspection. 

The fact that other MSHA inspectors may have been in the shop does not reduce CW' s 

negligence. It is the duty of the mine operator to comply with safety standards. In addition, it is 

not clear whether an MSHA electrical inspector had ever conducted an electrical inspection of 

the underground shop. CW argues that, because it had not experienced any problems with the 

shop's electrical system, it was not remiss in failing to conduct more thorough examinations. 

The purpose of electrical examinations is to make sure that problems do not arise. Waiting for a 

problem to develop before performing adequate examinations for potential hazards creates a 

serious risk that someone will be killed or injured. The Secretary's proposed penalty of 

$2,000.00 is appropriate for this violation. 

III. APPROPRIATE CIVIL PENALTIES 

Section l lO(i) of the Mine Act sets forth six criteria to be considered in determining 

appropriate civil penalties. The record shows that CW has a history of about 55 violations at the 

Bear Canyon No. 1 Mine and no violations at the Bear Canyon No. 3 mine in the two years prior 

to the inspections. Bear Canyon No. 1 Mine produced about 952,000 tons of coal in 2002 and 

Bear Canyon No. 3 produced about 3,500 tons of coal in 2002. All of the citations were abated 

in good faith. The gravity and negligence findings are discussed above. The penalties assessed 

in this decision will not have an adverse effect on CW' s ability to continue in business. Based on 

the penalty criteria, I find that the penalties set forth below are appropriate. 

26 FMSHRC 945 
IV. ORDER 

Based on the criteria in section 1 IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 30 C.F.R. § Penalty 

WEST 2003-332 

7612553 75.360(a)(l) $200.00 

7612544 75.1106 Vacated 

Citation No. 30 C.F.R. § Penalty 

WEST 2004-148 

7612350 75.701 800.00 

7612351 75.701 200.00 

7612352 75.701 200.00 

7612353 75.701 200.00 

7612354 75.701 200.00 

7612355 75.701 200.00 

7612356 75.701 200.00 

7612358 75.902 150.00 

7612359 75.902 150.00 

7612360 75.902 150.00 

7612421 75.902 150.00 

7612422 75.902 150.00 

7612423 75.902 150.00 

7612424 75.601 450.00 

7612425 75.900 325.00 

7612426 75.512 2,000.00 

TOTAL PENALTY $5,875.00 

26 FMSHRC 946 
For the reasons set forth above, Citation No. 7612544 is VACATED; the other citations 

are AFFIRMED or MODIFIED as set forth in this decision; and C.W. Mining Company is 

ORDERED TO PAY the Secretary of Labor the sum of $5,875.00 within 30 days of the date of 

this decision. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550, 

Denver, CO 80201-6550 (Certified Mail) 

Carl E. Kingston, Esq., 3212 South State Street, Salt Lake City, UT 84115-3882 (Certified Mail 

RWM 

26 FMSHRC 947 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

December 17, 2004 

NATIONAL LIME & STONE COMP ANY, : CONTEST PROCEEDING 

Contestant 

v. 

SECRETARY OF LABOR, 

Mine Safety and Health 

Administration, MSHA, 

Respondent 

Docket No. LAKE 2004-43-RM 

Citation No. 6148346; 01/13/2004 

Lima Plant 

Mine ID 33-00120 

ORDER GRANTING RESPONDENT'S MOTION 

FOR SUMMARY DECISION 

This case is before me on a Notice of Contest filed by National Lime & Stone Company 

against the Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 815. The notice challenges the issuance of a citation alleging a single 

violation of a regulation requiring the reporting of mine accidents, illnesses and injuries. 30 

C.F.R. § 50.20(a). The parties have stipulated to relevant facts and have filed cross-motions for 

summary decision. For the reasons set forth below, I find that there exists no genuine issue as to 

any material fact and that the Secretary is entitled to summary decision as a matter of law. 

Accordingly, the Notice of Contest is dismissed. 

On January 13, 2004, an authorized agent employed by the Secretary's Mine Safety and 

Health Administration ("MSHA"), issued Citation No. 6148346 to National Lime charging it 

with a violation of 30 C.F.R. § 50.20(a), which requires that mine operators report "each 

accident, occupational injury, or occupational illness at the mine." Following amendment, the 

"Condition or Practice" portion of the citation described the violation as follows: 1 

A miner, (payroll # 08-396), performing work at the Lima Plant mine, was 

exposed to poison ivy on or about May 22, 2003, and was treated by a physician 

on May 31, 2003, following his reaction to the poison ivy, but did not lose any 

1 Order dated August 23, 2004, granting the Secretary's unopposed motion to amend the 

citation. 

26 FMSHRC 948 
workdays. The mine operator did not report this as an occupational illness to 

MSHA and did not complete and submit an MSHA Form 7000-1, Mine Accident, 

Injury, and Illness Report. 

National Lime, which received a copy of the citation on or about January 26, 2004, duly 

filed a Notice of Contest, which the Secretary answered. Thereafter, the parties stipulated to the 

following facts: 

On or about May 22, 2003, a miner was performing work at National Lime's Lima Plant, 

at which time he was exposed to poison ivy. The miner experienced an adverse reaction to the 

poison ivy and, on or about May 31, 2003, he received an injection of Methylprednisolone from a 

physician. The miner did not require additional injections and did not lose any work days 

because of his reaction to the exposure to poison ivy. National Lime did not report to MSHA 

either the fact of the miner's exposure to poison ivy or his subsequent office visit to a doctor, 

which resulted in the injection. Poison ivy is a dermatitis-producing "sensitizing plant." Allergic 

contact dermatitis is a delayed hypersensitivity reaction to the sensitizing plant, poison ivy. 

The issue is whether National Lime was obligated to report the miner's reaction to poison 

ivy as an occupational illness under the subject regulation. The regulations define occupational 

illness as: 

Occupational illness means an illness or disease of a miner which may have 

resulted from work at a mine or for which an award of compensation is made. 

30 C.F.R. § 50.2(t). 

part: 

The reporting obligation imposed by 30 C.F.R. section 50.20, provides, in pertinent 

Each operator shall report each accident, occupational injury, or occupational 

illness at the mine .... If an occupational illness is diagnosed as being one of 

those listed in § 50.20-6(b )(7), the operator must report it under this part .... 

The referenced section, 30 C.F.R. § 50.20-6(b)(7), provides instructions on filling out 

various items on the prescribed reporting form and provides, in part: 

(7) Item 23. Occupational Illness. Circle the code from the list below which 

most accurately describes the illness. These are typical examples and are not to be 

considered the complete listing of the types of illnesses and disorders that should 

be included under each category. In cases where the time of the onset of the 

illness is in doubt, the day of diagnosis of illness will be considered as the first 

day of the illness. 

26 FMSHRC 949 
(i) Code 21 - Occupational Skin Diseases or Disorders. Examples: Contact 

dermatitis, eczema, or rash caused by primary irritants and sensitizers or 

poisonous plants; oil acne; chrome ulcers; chemical bums or inflammations. 

The Secretary argues that the plain wording of the regulation dictated that the miner's 

reaction to poison ivy be reported as an occupational injury. National Lime argues that the 

regulation, taken as a whole and as discussed in MSHA publications, is contradictory and vague 

with respect to conditions such as reactions to poison ivy, and that its original decision not file a 

report was correct. 

Commission Procedural Rule 67, 29 C.F.R. §2700.67, provides that a motion for 

summary decision shall be granted if the entire record shows that there is "no genuine issue as to 

any material fact" and that "the moving party is entitled to summary decision as a matter of law." 

Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1944). Here, the parties have 

stipulated to the facts material to the question of law presented for decision, i.e., whether 

National Lime violated the regulation by failing to report the miner's reaction as an occupational 

injury. 

Under the regulation there is a significant difference between "occupational injuries" and 

"occupational illnesses." An occupational injury is defined as: 

Occupational injury means any injury to a miner which occurs at a mine 

for which medical treatment is administered, or which results in death or loss of 

consciousness, inability to perform all job duties on any day after an injury, 

temporary assignment to other duties, or transfer to another job. 

30 C.F.R. § 50.2(e). 

Minor injuries that do not result in certain lost time from work and are treated only with 

first aid, as opposed to medical treatment, are not required to be reported. Except in the case of 

eye injuries, a single visit to a doctor and administration of prescription medication do not 

constitute medical treatment that would render reportable an otherwise non-reportable minor 

injury.2 Garden Creek Pocahontas Co., 11FMSHRC2148 (Nov. 1989). 

In contrast, the definition of an occupational illness, quoted above, contains no language 

excluding minor illnesses. As is evident from the definition, and as explained in MSHA 

publications cited by National Lime, all occupational illnesses are reportable whether or not 

2 The term "first aid" is defined as "one-time treatment, and any follow-up visit for 

observational purposes, of a minor injury." 30 C.F.R. § 50.2(g). Section 50.20-3 specifies 

differences between medical treatment and first aid for a number of injuries. 

26 FMSHRC 950 
medical treatment is provided. 3 

In making its argument that the regulation is contradictory and vague, National Lime 

points out that the citation, as originally written, referred to the miner's allergic reaction as an 

"injury," and stated that it was reportable because it was "medically treated." Those assertions 

were erroneous in several respects. Most importantly, the reaction, a "rash" or "contact 

dermatitis" caused by the "sensitizing" or "poisonous" plant, was clearly an occupational illness 

under the regulation, not an occupational injury. Because it was an illness, whether or not 

medical treatment was administered was irrelevant to the issue of whether it was reportable under 

the regulation. Moreover, the treatment received by the miner would clearly have been first aid, 

rather than medical treatment, such that the condition would not have been reportable had it been 

an injury. 

These misconceptions were apparently perpetuated during various conversations with 

MSHA personnel around, and shortly after, the time the citation was issued, some seven months 

after the illness should have been reported. Counsel for the Secretary recognized that the 

citation erroneously alleged that the reaction was an injury and moved, with National Lime's 

consent, to amend it to allege an unreported occupational illness. That motion was granted. 

I agree with National Lime's assertion that the regulation may appear complex, 

contradictory, or vague, on the issue of whether certain types of conditions should be categorized 

as injuries or illnesses. However, I do not find the regulation vague or misleading as to the 

condition at issue here. As noted above, the miner's reaction to the poison ivy fit so squarely 

within the regulation's language setting forth examples of occupational skin diseases or 

disorders, that a reasonably prudent person familiar with the mining industry and the protective 

purposes of the standard would have recognized the specific requirement of the regulation, 

i.e., that the miner's reaction was an occupational illness, which the regulation required to be 

reported. BHP Minerals International, Inc., 18 FMSHRC 1342, 1345 (Aug. 1996); Ideal Cement 

Co., 12 FMSHRC 2409, 2416 (Nov. 1990). 

National Lime contrasts regulatory language addressing distinctions between first aid and 

medical treatment with respect to the inhalation of toxic or corrosive gasses - indicating that 

such conditions are injuries - with other language describing "respiratory conditions due to toxic 

agents" as examples of occupational illnesses. It also makes reference to an MSHA publication 

counseling that elevated levels of lead in the blood, an occupational illness, would become 

reportable if the miner, inter alia, receives treatment for lead poisoning or to lower blood-lead 

levels, as contradictory of previously quoted language mandating the reporting of all 

occupational illnesses, whether or not medical treatment is provided. 

Some conditions, especially minor ones, could certainly present difficult questions for an 

operator attempting to comply with its reporting obligations. National Lime has cited some 

3 Contestant's letter-brief at 4. 

26 FMSHRC 951 
examples. There may also be a question of whether an illness. is so de-minimis that reporting 

would not be required, e.g., would the instant miner's reaction have been reportable if it was 

nothing more than a small rash that cleared up in a day or two? Presumably, MSHA 

representatives are available for telephonic consultation on such issues, and would provide 

guidance on interpretation of the regulation. 

This, however, was not such a case. The miner's reaction was clearly not de-minimis, 

and fell squarely within one of the descriptions of occupational illnesses in the regulation. 

National Lime apparently was aware of the miner's condition around the time that it occurred. 

There is no claim that it consulted MSHA and was mislead at that point. In failing to seek 

guidance, it acted at its peril, because an operator is strictly liable for violations of the Act, and 

mandatory health and safety standards and regulations enacted pursuant thereto. ASSARCO, Inc., 

8 FMSHRC 1632 (Nov. 1986), affd, 868 F.2d 1195 (10th Cir. 1989); Western Fuels - Utah, Inc., 

v. FMSHRC, 870 F.2d 711 (D.C.Cir. 1989). 

ORDER 

Based upon the foregoing, I find that there is no genuine issue as to any material fact and 

that the Secretary is entitled to summary decision as a matter of law. National Lime violated the 

cited regulation by failing to report the miner's occupational illness within ten days of its being 

diagnosed. Accordingly, the Notice of Contest is DISMISSED. 

Distribution (Certified Mail): 

Kevin Kitzler, Safety Compliance Officer, The National Lime & Stone Co., P.O. Box 120, 

Findlay, OH 45840 

Christine M. Kassak Smith, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. 

Dearborn St., 8th Floor, Chicago, IL 60604 

/mh 

26 FMSHRC 952 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

December 21, 2004 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2004-109-M 

Petitioner A.C. No. 41-03266-18191 

v. Docket No. CENT 2004-186-M 

A.C. No. 41-03266-28177 

KERR ENTERPRISES, INC., 

Respondent Docket No. CENT 2004-201-M 

A.C. No. 03266-30940 

BEECOMine 

ORDER LIFTING STAY 

CONSOLIDATION ORDER 

ORDER GRANTING SECRETARY'S MOTION 

FOR SUMMARY DECISION 

DECISION APPROVING SETTLEMENT 

AND 

ORDER TO PAY 

Docket No. CENT 2004-109-M was stayed on August 4, 2004, to enable the parties to 

reach factual stipulations for the filing of cross-motions for summary decision on the question of 

whether the BEECO Mine operated by Kerr Enterprises, Inc. (Kerr), is covered by the Federal 

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

motions for summary decision having been filed, the stay in Docket No. CENT 2004-109-M 

IS LIFTED. Docket Nos. CENT 2004-186-M and CENT 2004-201-M also involving the 

BEECO facility, were recently assigned. Accordingly, these three docketed civil penalty 

proceedings concern the same jurisdictional issue and ARE CONSOLIDATED for disposition. 

These cases contain a total of nine citations issued by the Mine Safety and Health 

Administration (MSHA) for alleged violations of mandatory safety standards in Parts 47 and 56 

of the Secretary's regulations governing surface mines. 30 C.F.R. Parts 47 and 56. The 

violations cited in eight of the nine citations were designated as non-significant and substantial 

(non-S&S) in nature. A violation is non-S&S if it is unlikely that the hazard contributed to by 

the violation will result in the occurrence of a serious injury. Nat'l. Gypsum Co., 3 FMSHRC 

822, 825 (April 1981). The Secretary has proposed a civil penalty of $60.00 for each of the eight 

non-S&S citations, and $875.00 for the remaining citation in Docket No. CENT 2004-201-M. 

Thus, the Secretary proposes a total civil penalty of $1,355.00. 

26 FMSHRC 953 
During aJuly 30, 2004, telephone conference, Kerr's counsel represented that the 

fact of the occurrence of the violations in Docket No. CENT 2004-109-M is not in dispute. 

In a subsequent telephone conference on December 14, 2004, Kerr's counsel stated, if it is 

determined that Kerr's facility is subject to Mine Act jurisdiction, Kerr will pay the $480.00 

civil penalty proposed by the Secretary for the eight non-S&S citations in Docket Nos. CENT 

2004-109-M and CENT 2004-186-M. With respect to the citation in Docket No. CENT 2004-

201-M, on December 15, 2004, the Secretary's counsel reported that the parties have agreed 

to reduce the civil penalty from $875.00 to $650.00. Thus, the parties have agreed on a total 

civil penalty of $1,130.00 if the facility is covered by the Mine Act. I construe the parties' 

representations to be a contingent joint motion for the approval of settlement. 

Specifically, the jurisdictional question is whether Kerr's BEECO facility is a 

"borrow pit" subject to Occupational and Health Administration (OSHA ) jurisdiction as 

contemplated by the 1979 OSHA-MSHA Interagency Agreement on Jurisdiction, 44 Fed. Reg. 

22827 (April 17, 1979). Kerr's Motion for Summary Decision was filed on October 25, 2004. 

The Secretary's motion was filed on October 27, 2004. The factual stipulations in the parties' 

motions are based on the August 3, 2004, deposition testimony of Melvin Keith Turner who 

is the manager of the BEECO facility. The transcript of Turner's testimony will be referred 

to in this decision. 

I. Background 

The BEECO facility in Orange County, Texas, has been operated by Kerr for more 

than five years. During this period activities have remained relatively unchanged. Turner has 

been employed by Kerr since 1992, and he is the senior on-site person at the BEECO facility. 

(Tr. 5-7). The facility is a full-time operation that operates fifty weeks a year and employs 

four full-time employees. (Tr. 21). 

At BEECO, Kerr extracts earthen material from a pit. The extracted material consists of 

clay, sand, topsoil, and a sand/clay mix which occurs naturally in the soil. Excavation is by 

means of trackhoes or front-end loaders. The only "processing" that is performed at the facility 

is through the use of a power grid or scalping screen, on about 20 percent of the materials, in 

order to remove roots and other wood debris. No sizing of materials is otherwise performed. 

(Resp. Mot. 1). 

Material extracted from the BEECO site is sold to more than fifty customers, none of 

whom are organizationally affiliated with Kerr. (Tr. 29). The customers, situated throughout the 

Beaumont-Port Arthur-Orange metropolitan area, are located as far as twenty-five miles away 

from the BEECO location. (Tr. 29-30). BEECO's customers include landscape companies, 

refinery contractors, construction contractors and concrete companies. (Tr. 22-26). 

26 FMSHRC 954 
II. Findings and Conclusions 

As a threshold matter, the Dictionary of Mining, Mineral and Related Terms 62 (2nd ed. 

1997) defines a "borrow pit" as: 

(a) The source of material taken from some location near an embankment where 

there is insufficient excavated material nearby on the job to form the embankment. 

Borrow-pit excavation is therefore a special classification, usually bid upon as a 

special item in contracts. It frequently involves the cost of land or a royalty for 

material taken from the land where the borrow pit is located; it also often requires 

the construction of a suitable road to the pit. This type of excavation therefore 

usually runs higher in cost than ordinary excavation. 

(b) An excavated area where borrow has been obtained. 

(Emphasis added). 

In 1979, MSHA and OSHA, divisions of the Department of Labor, entered into an 

lnteragency Agreement to provide guidance to affected employers on the principles and 

procedures for distinguishing between Mine Act and Occupational Safety and Health Act 

(OSH Act) jurisdiction. Interagency Agreement, supra; see also Sec'y v. Island Constr. Co., 

11 FMSHRC 2448, 2453 (Dec 1989) (ALJ Broderick). The Interagency Agreement addresses 

the jurisdictional parameters of "borrow pits." Paragraph B.7 of the lnteragency Agreement 

provides: 

"Borrow Pits" are subject to OSHA jurisdiction except those borrow pits located 

on mine property or related to mining. (For example, a borrow pit used to build a 

road or construct a surface facility on mine property is subject to MSHA 

jurisdiction). "Borrow Pit" means an area of land where the overburden, 

consisting of unconsolidated rock, glacial debris, other earthen material overlying 

bedrock is extracted from the surface. Extraction occurs on a one-time only basis 

or only intermittently as need occurs, for use as fill materials by the extracting 

party in the form in which it is extracted. No milling is involved, except for use 

of a scalping screen to remove large rocks, wood and trash. The material is used 

by the extracting party more for its bulk than its intrinsic qualities on land which 

is relatively near the borrow pit. 

44 Fed. Reg. at 22828. (Emphasis added). 

26 FMSHRC 955 
MSHA adopted interpretive guidelines in 1996 to clarify the 1979 Interagency Agreement 

with respect to borrow pits. The Interpretation and Guidelines provides in pertinent part: 

Thus, if earth is being extracted from a pit and is used as fill material in basically 

the same form as it is extracted, the operation is considered to be a "borrow pit." 

For example, if a landowner has a loader and uses bank run material to fill 

potholes in a road, low places in the yard, etc., and no milling or processing is 

involved, except for the use of a scalping screen, the operation is a borrow pit. 

The scalping screen can be either portable or stationary and is used to remove 

large rocks, wood or trash. In addition, whether the scalping is located where the 

material is dug, or whether the user of the material from the pit is the owner of the 

pit or a purchaser of the material from the pit, does not change the character of 

the operation, as long as it meets the other criteria. 

I, MSHA, U.S. Dept. Of Labor, Program Policy Manual, Section 4, I.4-3 (1996). (Emphasis 

added). 

Section 4 of the Mine Act, 30 U.S.C. § 803, provides that each "coal or other mine" shall 

be subject to the Act. Section 3(h)(l) of the Mine Act defines "coal or other mine" as "an area 

of land from which minerals are extracted ... and lands ... used in ... the milling of such 

minerals .... " 30 U.S.C. § 802(h)(l). Although the Mine Act does not define "extracted" or 

"milling," the Commission and courts have recognized the legislative history called for activities 

conferring Mine Act jurisdiction to be broadly construed. Drillex, Inc., 16 FMSHRC 2391, 2394 

(December 1994). (Citations omitted). As a general proposition, the term "extraction" means the 

separation of a mineral from its natural deposits in the earth. Id. at 2395. Extraction includes the 

removal by excavation of a composite of minerals, even if the minerals are not individually 

separated from the earthen material. Id. 

Either mineral extraction or milling independently provides a basis for Mine Act 

jurisdiction. Id. Thus, pit excavation and/or scalping would ordinarily give rise to 

Mine Act jurisdiction. However, the Interagency Agreement exempts a "borrow pit" from the 

broad reach of the Mine Act if certain conditions are met. The Secretary's 1996 Interpretation 

and Guidelines extend the exemption even if the user of the material extracted from the pit is a 

purchaser of the material rather than the owner of the pit. However, while the Secretary's 

interpretive guidelines extend the borrow pit exemption even if the extracted material is sold to a 

third party, the guidelines retain "the other criteria" in the Interagency Agreement that must be 

met to qualify as a "borrow pit." 

26 FMSHRC 956 
I am unpersuaded by Kerr's assertion that the nature and extent of its BEECO operations 

satisfy the criteria for a "borrow pit." As noted, the industry considers a "borrow pit" to be a 

"special classification" where "source of material [is] taken from some location near an 

embankment where there is insufficient excavated material nearby." Similarly, the Interagency 

Agreement notes that borrow pit material" ... is used by the extracting party more for its bulk 

than its intrinsic qualities on land which is relatively near the borrow pit." In other words, 

borrow pit material is fill material that is extracted for the limited purpose of providing bulk fill 

at a nearby location. 

Moreover, to qualify as a "borrow pit" the Interagency Agreement requires extraction 

"on a one-time only basis or only intermittently as need occurs." 44 Fed. Reg. at 22828. 

The full time continuous extraction and commercial sale at the BEECO facility to numerous 

customers, for a variety of uses, some of whom are located twenty-five miles away, is a far cry 

from the one time, or intermittent, local fill dirt activity contemplated for OSHA jurisdiction in 

the Interagency Agreement. 

The only activity at BEECO that can occur at a site that is properly characterized as a 

"borrow pit" is Kerr's use of a scalping screen to remove debris. However, the use of a scalping 

screen does not alter the routine, commercial surface mine nature of the BEECO operation. 

Rather, as the Secretary suggests, the BEECO facility is no different than sand and gravel 

operations, rock quarries or clay pits that sell extracted material to customers. (Sec'y Mot. 5-6). 

See, e.g., Jerry Ike Harless Towing, Inc., 16 FMSHRC 683 (April 1994). Moreover, since 

the BEECO facility is not a 'borrow pit," the on-site scalping constitutes "milling" under 

Section 3(h)(l) that provides an additional basis for Mine Act jurisdiction. Thus, the 

"borrow pit" exception to Mine Act jurisdiction, that also excludes jurisdiction of limited 

milling activity, does not apply to the BEECO facility. 

As a final matter, Kerr argues that it is the victim of selective enforcement because 

MSHA has not asserted jurisdiction over similarly situated competitors. Section 103(a) of the 

Mine Act authorizes the Secretary to "make frequent inspections and investigations in coal or 

other mines each year." 30 U.S.C. § 813(a). In this regard, section 103(a) requires the Secretary 

to "make inspections ... of each surface or other mine in its entirety at least two times a year." 

Id. Thus, although MSHA has the prosecutorial discretion not to exercise enforcement authority 

with respect to a particular condition or practice at a mine site, MSHA must exercise its 

jurisdiction over all mine sites. Air Prods. and Chems., Inc., 15 FMSHRC 2428, 2435 n.2 

(December 1993) (concurring opinion). Consequently, allegations of selective enforcement 

cannot provide a basis for exemptions from Mine Act coverage. 

26 FMSHRC 957 
ORDER 

In view of the above, the BEECO facility operated by Kerr Enterprises, Inc., 

is subject to Mine Act jurisdiction. Consequently, the Secretary's Motion for Summary Decision 

IS GRANTED and Kerr Enterprises, Inc.'s Motion for Summary Decision IS DENIED. 

With respect to the civil penalty to be assessed, I have considered the representations and 

documentation submitted in this matter and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section l lO(i) of the Act. WHEREFORE, the parties' 

settlement agreement IS APPROVED, and IT IS ORDERED that Kerr Enterprises, Inc., 

pay a total civil penalty of $1,130.00 within 45 days of this Decision in satisfaction of the 

nine citations in issue. Upon receipt of timely payment, the captioned civil penalty cases 

ARE DISMISSED. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Charles R. Hairston, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX 75202 

Kerwin B. Stone, Esq., Moore Landry, LLP 390 Park Street, Suite 500, Beaumont, TX 77701 

/hs 

26 FMSHRC 958 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, DC 20001-2021 

RS & W COAL COMPANY, 

Contestant 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

December 30, 2004 

CONTEST PROCEEDINGS 

Docket No. PENN 2005-58-R1 

Order No. 7007058; 12/15/2004 

RS & WDrift 

Mine ID 36-01818 

DECISION 

Appearances: Randy Rothermel, President, R S & W Coal Company, Inc., Klingerstown, PA, 

for the Complainant; 

Andrea Appel, Esq., U.S. Department of Labor, Philadelphia, PA, for the 

Respondent. 

Before: Judge Weisberger 

At issue in this proceeding is an imminent danger order issued on December 15, 2004, 

pursuant to Section 107(a) of the Federal Mine Safety and Health Act of 1977 (The Act). The 

matter was heard, on an expedited basis on December 21 & 22, 2004, in Harrisburg, 

Pennsylvania. 

After the hearing, a bench decision was issued. The decision, except for corrections of 

matters not of substance and omissions of language not relevant to this decision, is set forth as 

follows: 

I. 

R S & W operates a coal mine. The imminent danger order relates to 

various conditions observed along a 70 foot length haulage track. The track was 

traversed by a locomotive and five cars, either loaded with approximately five 

tons of coal or three tons of rock. These cars also regularly ran on the tracks when 

transporting miners. 

1

This matter is Ordered severed from Docket Nos. PENN 2005-55-R et al. 

26 FMSHRC 959 
On December 15, 2004, MSHA Inspector Michael Dudash observed a 

number of conditions that he indicated contributed to his finding of an imminent 

danger. 

1. Crack in the rail and inadequate fishplate. 

Dudash observed a crack in a rail that was approximately four inches from 

the south end of the rail. The crack went all the way through the rail. A fishplate 

connected this rail and the adjacent rail to the north. According to the inspector, 

the fishplate was connected to these two rails by four bolts, but only three of the 

four bolts were effective~ two on the north side and only one on the south side. 

The inspector indicated that the rail was subject to various stresses. The dumping 

of coal or rocks by the cars created torsion stress on the rails. Another type of 

stress was created by downward pressure, and its release caused when the cars ran 

on the tracks. 

Additionally the inspector testified that the fishplate was not in contact 

with the vertical web of the track. 

The inspector indicated that it was reasonably likely that due to the various 

stresses the track could shift causing the cars to derail or overturn. In such an 

event, an injury of a reasonably serious nature was reasonably likely to occur 

because the west side of the track was over an opening which would lead to 

somebody falling 25 feet and landing on top of coal or rock. 

David Winand, who works for R S & W worked on the site for six years. 

He testified that the fishplate, which he termed a splice bar, had been installed one 

to one and a half years ago. He said it had not been previously cited. Also, he 

never saw it stretch or flex. 

Randy Rothermel, R S & W's superintendent testified that he never saw 

the track move, and has not seen any signs of stress. 

2. Unsupported rail ties. 

In addition, along a 36 foot length of track ten railroad ties that had been 

installed perpendicular to the tracks extended 14 inches beyond a wall that 

supported the rails and the ties. As a consequence, 14 inches of the each tie, 

designed to support the rail, was over a void twenty feet above the ground, and as 

a consequence, the rail resting on these ties also was unsupported. 

26 FMSHRC 960 
3. The lack of a device to prevent cars from overtravelling or 

overturning. 

Further, in the area where coal was dumped, which extended 

approximately 30 feet, there wasn't anything present to prevent cars from 

overtravelling and/or overturning if a rail would dislodge or if support would fail. 

4. The lack of rails to prevent a person from falling. 

Additionally, there were no protective rails along the elevated west side of 

the tracks in an area of the tracks where miners shovel, and remove wheels from 

cars when they are dumped. Due to the absence of protective rails a person could 

have stumbled on the ties or coal and rocks between the ties, and fallen off the 

west side of the tracks and landed on the ground 25 feet below. 

5. A gap between rail ties. 

Lastly, the inspector observed that a 14 inch gap between the ties that 

extended 30 feet and was five feet above the surface along one of the dumping 

areas. 

II. 

The inspector issued a Section 107(a) imminent danger order. He 

indicated that each of the above conditions contributed to the finding of an 

imminent danger. 

Additionally, the inspector indicated that more rail spikes were needed to 

anchor the rails. However, he did not indicate the basis for his conclusion that 

additional ties were needed. He indicated that also a basis for the imminent 

danger order, was that the outside (western) rail was reasonably likely to fail, 

connections were exposed, and there was no support under the rails. 

Gregory Mehalchik, an MSHA engineer, testified that the outside rail was 

subject to torque tension. According to him; it needed two adequate supports, but 

there was only one. He didn't indicated any basis for that conclusion. 

Mehalchik opined that the track was highly likely to fail due to the weight 

on it and the torsion effect. He also referred to erosions which deprive support 

and the freeze-thaw effect. 

Mehalchik testified that in his opinion all of the five conditions set forth 

above would contribute to an accident. He was asked a number of times to 

26 FMSHRC 961 
explain the reason for his opinion that there was an imminent danger of an 

accident occurring within a short period of time. His testimony is not very 

persuasive with regard to meeting that burden. 

He first indicated his opinion was based on the existence of gaps between 

the rails, the absence of and hand rails along with the fact that people work in the 

area , the presence of a danger of falling through the gap, or going over the side of 

the track, the possibility of a sudden failure of the rail which could lead to a 

derailment, and the possibility of a failure of a fishplate or rail which could occur 

suddenly due to fatigue caused by the placing of loads on and off the rails. 

In another portion of the testimony Mehalchik was asked to explain the 

basis for his conclusion that there was an imminent danger. He explained that in 

the area of the crack there was a connecting bar over a void, also that there was a 

lack of support for rails where the ties extended unsupported 14 inches beyond the 

wall, which causes a lack of support for the rails, which causes a bending effect. 

Further, that fishplates were not supported. 

At another point in his testimony he was asked to explain that basis for the 

imminent danger, and he explained that fatigue could come into play, that this 

occurs over time, and that there was some erosion. He indicated that signs of 

fatigue on various items of metal are observable. However, he did not see any 

fatigue or evidence of bolt shearing. 

It certainly can be argued that all the conditions in combination add up to a 

series of conditions that can lead to a conclusion that an accident injury-producing 

event was reasonably likely to have occurred at some time given continued mining 

operations. It could have occurred within the next couple of minutes, or it could 

have occurred over a number of years. These are considerations when deciding if 

cited conditions are significant and substantial. Dudash and Mehalchik found that 

the conditions cited reasonably would have led to an injury-producing event 

within a short period of time, but they didn't provide a basis for their conclusion. 

In deciding whether the Secretary established the existence of an imminent 

danger, I'm guided by a number of factors. (1) Section 3(j) of the Act that defines 

imminent danger. (2) more importantly, an analysis of Commission law, briefly 

referred to by the Secretary, Utah Power & Light, 13 FMSHRC 1617, 1621 

(1991), followed by Wyoming Fuel Co., 14 FMSHRC 1282 (1992), which is 

followed by Island Creek, 15 FMSHRC 339 (1993) and the more recent case of 

Blue Bayou Sand & Gravel, 18 FMSHRC 853 (1996) cited by the Secretary. 

Considering all these cases and putting weight on the most recent case, Blue 

Bayou, supra, I conclude that the test of an imminent danger is the existence of a 

hazardous condition or conditions that have a reasonable potential to cause death 

26 FMSHRC 962 
or serious injury within a short period of time. I don't find that spelled out in the 

Secretary's case or in the evidence. 

In this connection, I refer to a number of matters brought out by the 

Company. First of all, with regard to some specifics, the splice bar that was cited, 

according to the testimony of Winan, had been in place a year and a half or two 

years. Second, Winand, who is at the site daily and has been there for the last six 

years, has never seen any stretching or flexing of rails. 

Rothermel testified that he laid a level perpendicular to the rails, and 

" ... it was level" (Tr. 260). The splice bar used by the Company was, according to the 

Company's uncontradicted testimony, thicker than an L-shaped bar. I find that testimony 

of the Company's witnesses credible as it is logical that the bar in question has the effect 

of connecting three pieces of a rail; the broken piece, the solid piece to the south, and the 

solid piece to the north. I find Rothermel' s testimony credible that he never saw the joint 

move. There aren't any signs of stress on any part. The fishplates, according to the 

testimony of the Company's witness, which was not contradicted, were bolted on both 

sides of the track. Also, although14 inches of the 100 inch long ties extended over 

unsupported area, the remaining 86 inches of the ties was supported, at grade connected 

to the wall, and attached to cement, all of which provides a high degree of support. 

More importantly, I note that none of the conditions referred to by the 

Secretary's witnesses, have just occurred. They've been in existence some time. 

According to the uncontradicted testimony of the Company's witnesses, the crack 

has been in existence more than five years. The amount of extension of the ties 

over unsupported area existed since 1990. The other cited conditions have existed 

since 1990, a period of more than 15 years. This is very significant evidence 

negating a finding of any imminence of an accident or injury-producing event 

leading to someone being injured. 

For all these reasons I find that it has not been established that there was 

any imminent danger as defined in the case law, and 107 order shall be dismissed. 

ORDER 

It is ORDERED that the Notice of Contest is sustained. It is further ORDERED that 

Order 7007058 be dismissed. 

-~Weisberger 

!J ~ 

Administrative Law Judge 

26 FMSHRC 963 
Distribution: 

Randy Rothermel, President, RS & W Coal Company, Inc., 207 Creek Road, Klingerstown, PA 

17941 

Andrea Appel, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite 

630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

/sb 

26 FMSHRC 964 
Federal Mine Safety & Health Review Commission 

Calendar Year 2004 Index 

This index of decisions and orders issued during the calendar year 2004 is divided into 

two parts: decisions and orders issued by the Commission, followed by those issued by 

the Administrative Law Judges (ALJ's). The listings include title, docket number, date 

of issuance, and page number in the Federal Mine Safety & Health Review 

Commission's Bluebook (FMSHRC), volume 26. Where the Secretary of Labor, Mine 

Safety and Health Administration is a party, listings are under the name of the opposing 

party. 

Commission Decisions and Orders 

Case Name Docket Number Date Page Number 

FMSHRC Vol. 26 

Aggregate Industries WEST 2004-296-M 07-16-2004 Pg.564 

AJ Crushing & WEST 2004-405-M 10-04-2004 Pg. 783 

Concrete, LLC. 

Arnold Crushed Stone CENT 2002-242-M 05-19-2004 Pg.388 

Beco Construction Co. WEST 2003-104-M 03-19-2004 Pg. 171 

WEST 2004-149-M 05-21-2004 Pg.392 

Better Materials Corp. PENN 2003-95-M 03-19-2004 Pg. 179 

Black Hills Bentonite, WEST 2003-276-M 03-19-2004 Pg. 190 

LLC. 

Brown Sand, Inc. WEST 2003-384-M 03-19-2004 Pg. 186 

Cahill Industries Corp. YORK 2004-38-M 06-03-2004 Pg.453 

Cannelton Industries, WEVA 2002-111-R 03-12-2004 Pg. 146 

Inc. 

1 
Commission Decisions and Orders 

Case Name Docket Number Date Page Number 

FMSHRC Vol. 26 

Certified Road YORK 2003-62-M 03-29-2004 Pg.268 

Constructors, Inc~ 

Christensen WEST 2004-117-M 04-05-2004 Pg.329 

Construction & Gravel, 

Inc. 

CKC Materials Division WEST 2003-268-M 03-25-2004 Pg.238 

Consolidation Coal Co. WEV A 2002-83 03-04-2004 Pg. 138 

WEST 2002-373 03-04-2004 Pg. 142 

Cosby-Carmichael, Inc. SE 2003-78-M 03-25-2004 Pg.234 

Crabtree, employed by SE 2003-203 03-29-2004 Pg.264 

Pro-Industrial Welding 

Currituck Sand, Inc. SE 2004-154-M 11-22-2004 Pg. 843 

D.A. Doughy & Sons WEST 2003-79 03-25-2004 Pg.246 

Dacotah Cement CENT 2001-218-M 06-09-2004 Pg.461 

Darwin Stratton & Son, WEST 2001-528-M 10-06-2004 Pg. 787 

Inc. 

Double J Sand & Rock WEST 2003-124-M 04-05-2004 Pg.325 

WEST 2004-213-M 04-06-2004 Pg.349 

E.C. Voit & Sons LAKE 2003-130-M 03-29-2004 Pg.253 

Eastern Associated Coal WEVA 2004-91 06-22-2004 Pg.480 

Corp. 

Enercorp, Inc. PENN 2003-187 06-08-2004 Pg.457 

Frontier-Kemper WEST 2003-279-M 03-18-2004 Pg. 163 

Constructors, Inc. 

2 
Commission Decisions and Orders 

Case Name Docket Number Date Page Number 

FMSHRC Vol. 26 

Georges Colliers, Inc. EAJ 2002-2 01-16-2004 Pg. 1 

Giant Cement Co. SE 2004-108-M 05-11-2004 Pg.379 

Glasscock, employed by PENN 2003-198 03-19-2004 Pg. 175 

Maple Creek Mining 

Hanson Permanente WEST 2003-260-M 03-23-2004 Pg.221 

Cement, Inc. 

Harvey W. Boche WEST 2004-397-M 12-23-2004 Pg.909 

Building, Inc. 

Herren WEST 2004-311-M 10-06-2004 Pg.791 

Highland Enterprises, WEST 2004-359-M 08-30-2004 Pg. 703 

Inc. 

Highlands Mining & KENT 2002-242 04-06-2004 Pg.345 

Processing Co. 

Hoffman, Inc. WEVA 2004-191 09-15-2004 Pg. 757 

J S Sand & Gravel, Inc. YORK 2004-50-M 10-07-2004 Pg. 795 

Jim Walter Resources SE 2003-160 09-10-2004 Pg. 754 

John R. Sand & Gravel LAKE 2004-63-M 05-27-2004 Pg.403 

John Richards WEST 2000-168-M 04-22-2004 Pg.357 

Construction 

Joliet Sand & Gravel Co. LAKE 2004-99-M 07-29-2004 Pg.568 

Kingwood Mining Co. WEV A 2004-50 03-19-2004 Pg. 183 

Lammi Sand & Rock WEST 2004-502-M 10-29-2004 Pg.807 

Laredo Paving, Inc. CENT 2003-35-M 03-25-2004 Pg.228 

Leeco, Inc. KENT 2004-50 03-25-2004 Pg.250 

3 
Commission Decisions and Orders 

Case Name Docket Number Date Page Number 

FMSHRC Vol. 26 

Little, employed by KENT 2003-280 03-23-2004 Pg.210 

Coastal Coal Co. · 

Martin Marietta CENT 2004-234-M 10-29-2004 Pg.803 

Aggregates 

Meridian Aggregates Co. CENT 2002-280-M 03-29-2004 Pg.276 

Moab Salt, LLC WEST 2004-130-M 04-15-2004 Pg.353 

Munn Road Sand & LAKE 2003-86-M 05-18-2004 Pg.383 

Gravel 

Philip Environmental CENT 2003-26-M 03-19-2004 Pg.206 

Services, Inc 

Prairie Materials Sales, LAKE 2004-94-M 10-12-2004 Pg.800 

Inc. 

RAG Cumberland Res. PENN 2004-16 03-23-2004 Pg.214 

PENN 2000-181-R 08-10-2004 Pg.639 

RAG Shoshone Coal WEST 1999-342-R 02-04-2004 Pg. 75 

Corp. 

RAT Contractors, Inc. VA 2003-1 03-25-2004 Pg.231 

Ray Brown Enterprises SE 2003-43-M 03-29-2004 Pg.256 

RBS, Inc. WEVA 2004-136-M 09-09-2004 Pg. 751 

Ross, employed by PENN 2004-17 03-19-2004 Pg. 198 

Maple Creek Mining 

03-19-2004 Pg.202 

Scott Anderson Trucking WEST 2003-11-M 04-06-2004 Pg.337 

South Texas Aggregates, CENT 2003-94-M 03-25-2004 Pg.242 

Inc. 

4 
Commission Decisions and Orders 

Case Name Docket Number Date Page Number 

FMSHRC Vol. 26 

Southwest Concrete & CENT 2004-49-M 08-10-2004 Pg.631 

Paving, Inc. 

Southwest Concrete & CENT 2004-192-M 08-20-2004 Pg.635 

Paving, Inc. 

Stillwater Asphalt PENN 2003-40-M 04-06-2004 Pg.341 

Stillwater Mining Co. WEST 2004-140-M 03-19-2004 Pg. 167 

Tacoma Diesel & WEST 2003-112-M 03-23-2004 Pg.218 

Equipment, Inc. 

Twentymile Coal Co. WEST 2000-480-R 08-12-2004 Pg.666 

U.S. Quarried Slate YORK 2004-20-M 03-19-2004 Pg. 194 

Products, Inc. 

Van Buren County Road CENT 2003-187-M 03-29-2004 Pg.272 

Dept. 

Virgin Islands Quarry, SE 2003-112-M 03-29-2004 Pg.260 

Inc. 

Washington Rock WEST 2004-345-M 08-30-2004 Pg.699 

Quarries, Inc. 

Wildey, employed by WEST 2004-157-M 04-05-2004 Pg.333 

Stewart Excavating, Inc. 

Youngquist Brothers SE 2004-111-M 05-25-2004 Pg.399 

Rock 

5 
Federal Mine Safety & Health Review Commission 

2004 Index 

ALJ Decisions and Orders 

Case Nrune Docket Number Date Page Number 

FMSHRC Vol. 26 

APAC-Mississippi, Inc. SE 2004-83-M 10-07-2004 Pg. 811 

Baylor Mining Co. WEV A 2004-19 08-24-2004 Pg. 745 

WEV A 2004-36 08-18-2004 Pg. 739 

WEVA 2004-36 08-18-2004 Pg. 777 

(Corrected Copy) 

WEV A 2004-36 11-08-2004 Pg.905 

Becon Construction, Inc. WEST 2001-204-RM 05-18-2004 Pg.448 

08-03-2004 Pg. 731 

Blue Diamond Coal Co. KENT 2002-99-R 07-19-2004 Pg. 570 

C.W. Mining Co. WEST 2003-332 12-10-2004 Pg.925 

Calmat Co. of Arizona WEST 2004-86-M 05-21-2004 Pg.409 

Clevinger, employed by KENT 2003-247 06-03-2004 Pg.485 

Lodestar Energy, Inc. 

Cold Spring Granite Co. CENT 2003-214-M 02-26-2004 Pg. 119 

Cole v. Newmont Midas WEST 2004-442-DM 10-25-2004 Pg.818 

Operation 

Conn, employed by KENT 2002-356 04-12-2004 Pg.361 

Rockhouse Energy 

Mining Co. 

Dacotah Cement CENT 2001-218-M 07-27-2004 Pg.597 

Elk Run Coal Co. WEV A 2003-149 09-13-2004 Pg. 761 

6 
ALJ Decisions and Orders 

Case Natne Docket Number Date Page Number 

FMSHRC Vol. 26 

F .R. Carroll, Inc. YORK 2003-59-M 02-04-2004 Pg.97 

George v. 2417 Service & CENT 2004-98-D 07-30-2004 Pg.613 

Supply Co. 

08-02-2004 Pg. 707 

Georges Colliers, Inc. EAJ 2002-2 04-26-2004 Pg.371 

Gleason v. Colowyo Coal WEST 2003-265-D 02-18-2004 Pg. 105 

Co. 

Gochenour's Minerals & WEST 2003-453-M 03-29-2004 Pg.310 

Mining 

Granite Construction WEST 2004-179-M 09-24-2004 Pg.770 

Co. 

Granite Mountain CENT 2003-289-M 02-26-2004 Pg. 126 

Crushing, LLC. 

Hansen Truck Stop, Inc. WEST 2003-284-M 03-09-2004 Pg.293 

Harlan Cumberland KENT 2004-34 06-08-2004 Pg.515 

Coal Co. 

Independence Coal Co. WEVA 2002-138 06-15-2004 Pg.520 

Jim Walter Resources SE 2003-97-R 02-02-2004 Pg. 133 

06-30-2004 Pg.556 

SE 2003-103-R 03-01-2004 Pg.284 

SE 2003-150-R 03-26-2004 Pg.317 

10-07-2004 Pg.823 

SE 2003-160 07-02-2004 Pg.623 

08-17-2004 Pg.734 

7 
ALJ Decisions and Orders 

Case Name Docket Number Date Page Number 

FMSHRC Vol. 26 

Jim Walter Resources SE 2003-160 10-14-2004 Pg.830 

Kerr Enterprises, Inc. CENT 2004-109-M 12-21-2004 Pg.953 

Kinnaman (Sec'y of WEST 2003-402-DM 05-13-2004 Pg.443 

Labor on behalf of) v. 

3M Corp. 

Maple Creek Mining, PENN 2002-116 06-18-2004 Pg.539 

Inc. 

Martin County Coal KENT 2002-42-R 01-14-2004 Pg.35 

Corp. 

Melgaard Construction WEST 2003-264-M 08-24-2004 Pg. 720 

Co. 

Miller v. TXU Mining CENT 2003-307-D 06-04-2004 Pg.510 

Co. 

Mullins v. U.S. Steel WEVA 2003-155-D 01-28-2004 Pg.65 

Mining Co. 

National Lime & Stone LAKE 2004-43-RM 12-17-2004 Pg.948 

Co. 

Ohio Valley Coal Co. LAKE 2002-61 08-31-2004 Pg. 729 

Original Sixteen to One WEST 2002-224- 01-05-2004 Pg.21 

Mine, Inc. M(A) 

Palmer Coking Coal Co. WEST 2003-392-M 06-04-2004 Pg.504 

Pollock v. Kennecott WEST 2003-182-DM 01-21-2004 Pg.52 

Utah Copper Corp. 

Quackenbush v. SE 2003-83-DM 12-08-2004 Pg.913 

Kentucky-Tennessee 

Clay 

8 
ALJ Decisions and Orders 

Case Nrune Docket Number Date Page Number 

FMSHRC Vol. 26 

RAG Cumberland Res. PENN 2000-181-R 10-14-2004 Pg.827 

10-18-2004 Pg.816 

Rockhouse Energy KENT 2002-218 07-28-2004 Pg.599 

Mining Co. 

RS&W Coal Co. PENN 2005-58-R 12-30-2004 Pg.959 

San Juan Coal Co. CENT 2004-35-R 05-25-2004 Pg.427 

Southwest Quarry & CENT 2003-306-M 02-25-2004 Pg. 116 

Materials, Inc. 

Speed Mining Co. WEVA 2004-187-R 08-12-2004 Pg. 708 

Sterling Materials KENT 2004-129 08-30-2004 Pg. 747 

Tornbom v. Premier WEST 2004-28-DM 05-24-2004 Pg.414 

Chemicals, LLC. 

Webster County Coal, KENT 2003-332 02-23-2004 Pg. 136 

LLC. 

Wright (Sec'y of Labor CENT 2004-110-DM 04-26-2004 Pg.377 

on behalf oO v. 

Amerigold Logistics, 

LLC. 

9 

vU.S. GOVERNMENT PRINTING OFFICE: 2005/310-984/15912