Jmrn 1992 

COMMISSION DECISIONS 

06-03-92 

06-09-92 

06-16-92 

06-25-92 

06-29-92 

ASARCO, Inc. 

Consolidation Coal Company 

United States Steel Mining Company 

Southern Ohio Coal Company 

Contests of Respirable Dust Samples 

COMMISSION ORDERS 

06-23-92 Gatliff Coal Company, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-05-92 

06-09-92 

06-17-92 

06-17·-92 

06-17-92 

06-17-92 

06-18-92 

06-22-92 

06-22-92 

06···23-92 

06-23-92 

06-23-92 

06-23-92 

06-·23-92 

06-24-92 

06-26-92 

06-29-92 

06-29-·92 

06-29-92 

06-30-92 

R & N Coal Company 

Capricorn Coal Company~ Inc. 

Raymond D. Sheets v. Koch Carbon, Inc. 

Hills Materials Company 

Doris Coal Company, Inc. 

Roy Farmer on behalf of other miners v. 

Island Creek Coal Company 

Mar-Land Industrial Contractor, Inc. 

Ramblin Coal Company, Inc. 

VP-5 Mining Company 

Stoneway Concrete 

Stoneway Concrete 

Deatley Company 

Klamath Pacific Corporation 

Darbet Incorporated 

Marvin David Warren v. Webster County Coal 

Hansel John Saffell v. National Cement Co. 

Texas Industries, Inc. 

Peabody Coal Company 

Richard Allen Plaster v. Falcon Coal Corp. 

Mid-Continent Resources, Inc. 

ADMBISTRATIVE LAW JUDGE ORDERS 

06-04-92 Contests of Respirable Dust Samples 

06--05-92 Donald L. Giacomo emp. by Wyoming Fuel Co. 

06-12-92 Contest of Respirable Dust Samples 

06-18-92 Contest of Respirable Dust Samples 

06-24-92 Contest of Respirable Dust Samples 

06--30-92 Contest of Respirable Dust Samples 

SE 89-·24-RM 

WEVA 90-3 

WEVA 91··73 

WEVA 90-141 

No. 91-1 

PENN 91--1320 

KENT 91-1028 

VA 92·-5-D 

CENT 91-149-M 

VA 91-·571 

VA 92-59-C 

SE 90-117-·M 

KENT 90-429 

VA 92-112-R 

WEST 91-640-M 

WEST 91-444-M 

WEST 91-5 

WEST 91-515-M 

WEVA 91-1659 

KENT 91-1036-D 

WEST 90-l 7lf-DM 

CENT 92-78-M 

KENT 91-1417 

VA 91·-449-D 

WEST 91-168-H 

No 91·-l 

WEST 92-100 

No. 91--1 

No. 91-1 

No. 91-1 

No. 91-1 

Pg. 941 

Pg. 956 

Pg. 973 

Pg. 978 

Pg. 987 

Pg. 1013 

Pg. 1015 

Pg. 1017 

Pg. 1018 

. 1019 

Pg. 1021 

Pg. 1022 

Pg. 1023 

Pg. 1025 

Pg. 1033 

Pg. 1043 

Pg. 1045 

Pg. 104 7 

Pg. 1049 

Pg. 1051 

Pg. 1052 

Pg. 1053 

Pg. 1068 

. 1074 

Pg. 1079 

Pg. 1085 

1087 

Pg. 1091 

Pg. 1098 

1104 

Pg. 1110 

Pg. 1112 

JUNE 1992 

REVIEW WAS GRANTED IN THE FOLLOWING CASE DURING THE MONTH OF JUNE: 

Secretary of Labor, MSHA v. Steele Branch Mining Company, Docket No. 

WEVA 91-2077, WEVA 91-2123. (Judge Weisberger, Hay 19, 1992) 

Secretary of Labor, MSHA v. Gatliff Coal Company, Docket No. KE~T 91-1084. 

(Chief Judge Merlin, Default Decision, Hay 20, 1992) 

REVIEW WAS DENIED IN THE FOLLOWING CASE DURING THE MONTH OF JUNE: 

Thomas Mucho v. Beth Energy Mines, Inc., Docket Nos. PENN 91-1382-D, 

PENN 81-1558-D. (Judge Koutras, May 5, 1992) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 3, 1992 

SECRETARY OF LABOR, Docket Nos. SE 89-24-RM 

SE 89-25-RM 

SE 89-26-RM 

SE 89-37-RM 

SE 89-60-M 

SE 89-105-M 

SE 89-108-M 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ASARCO, INC. 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This consolidated contest and civil penalty proceeding arises under the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 810 et seq. (1988)(the 

"Mine Act" or "Act"). It involves the validity of four citations issued at 

Asarco, Inc.'s ("Asarco") Immel Mine, two alleging violations of 30 C.F.R. 

§ 57.3401 for failing to examine and test for loose ground and two alleging 

violations of 30 C.F.R. § 57.3200 for failing to correct hazardous ground 

conditions. 1 Two citations were issued as a result of an investigation of a 

1 The regulations are as follows: 

§ 57.3401 Examination of ground conditions. 

Persons experienced in examining and testing for 

loose ground shall be designated by the mine operator. 

Appropriate supervisors or other designated persons 

shall examine and, where applicable, test ground 

conditions in areas where work is to be performed, prior 

to work commencing, after blasting, and as ground 

conditions warrant during the work shift. Underground 

haulageways and travelways and surface area highwalls 

and banks adjoining travelways shall be examined weekly 

or more often if changing ground conditions warrant. 

§ 57.3200 Correction of Hazardous conditions. 

Ground conditions that create a hazard to persons 

shall be taken down or supported before other work or 

travel is permitted in the affected area. Until 

corrective work is completed, the area shall be posted 

941 
fatal accident and the other two citations were issued during the accident 

investigation, but do not allege that the violations contributed to the 

accident. 

Administrative Law Judge William Fauver affirmed the four citations and 

concluded that the violations were the result of Asarco's highly negligent 

conduct. Asarco. Inc., 12 FMSHRC 2073 (October 1990)(ALJ). 2 The Commission 

granted Asarco's petition for discretionary review and heard oral argument on 

February 20, 1992. 

For the reasons set forth below, we affirm the judge's conclusion that 

Asarco violated section 57.3401 with respect to one citation and his related 

finding that Asarco was highly negligent. We reverse his findings of 

violation with respect to the other three citations. 

I. 

Factual and Procedural Background 

Asarco operates the Immel Mine, an underground zinc mine located in Knox 

County, Tennessee. The zinc is removed by the selective open stope method. 3 

This method involves drilling blast holes into the ore body and blasting the 

drilled area, and then removing the ore. 

George Norton, a jumbo drill operator and the accident victim, was 

assigned to drill blast holes in the heading of the 2C3 stope the morning of 

October 24, 1988. Carlyle Bales, his foreman, transported Norton, Richard 

Hubbard, and two other miners to their respective work areas. At about 

7:25 a.m., Bales arrived with Norton and the others at the heading of the 2C3 

stope, which was about 47 feet wide and 18 feet high. Bales testified that he 

conducted a visual examination of the area and found no cracks, discoloration, 

loose ground, or fallen material on the floor. Tr. 1203-04, 1214-15, 1225-26. 

During the course of his examination, Bales walked to the wall of the heading. 

Hubbard confirmed that Bales examined the work area that morning and that the 

ground looked good. Tr. 237, 312. Bales then travelled back down the 2C3 

stope and dropped Norton off to pick up the jumbo drill, so that Norton could 

take it back to the heading of the 2C3 stope. Bales took the other three 

miners to their work areas. 

with a warning against entry and, when left unattended, 

a barrier shall be installed to impede unauthorized 

entry. 

2 The judge also dismissed two citations alleging violations of 30 C.F.R. 

§ 57.3202 requiring the use of a scaling bar where manual scaling is performed. 

The Secretary did not seek review of these dismissals. 

3 "Stope" is defined as "[a]n excavation from which ore has been excavated 

in a series of steps. . . . The term is also applied to breaking ground by drilling 

and blasting or other methods." Bureau of Mines, U.S. Department of Interior, 

A Dictionary of Mining, Mineral and Related Terms 1081-82 (1968) ("DMMRT"). 

942 
A jwnbo drill operator drills holes in the face, rib, or back, to be 

filled with explosives and blasted. Norton was a veteran miner and drill 

operator with over 25 years of experience. He generally worked alone. 

At about 10:50 a.m., Bales returned to the heading of the 2C3 stope and 

visited Norton for 20 to 25 minutes while Norton ate lunch. Bales testified 

that he saw no signs of loose ground. 4 Tr. 1205-07. About 12:10 p.rn., 

Richard Abdella, a haul man, serviced Norton's jumbo drill. Abdella testified 

that he observed no loose ground and did not hear any ground "working." Tr. 

988-99. At about 12:25 p.m., Bales again visited Norton to bring water 

gaskets needed for drilling. Bales testified that he again looked at the 

ground in the area and found nothing wrong. Tr. 1208-10. 

John Ellis, Jr., the general mine foreman, found Norton at about 1:25 

p.m., crushed under a slab that had fallen from the mine roof about seven feet 

to the right and rear of the jumbo drill and outside the drill's protective 

canopy. Norton died of the injuries sustained. The drill had been shut down 

and the drill steel was found in holes that were the last or next to last row 

scheduled to be drilled in the face .... of the heading. 

The ground failure extended from the right rib to the area above the 

jumbo drill, a distance of about 22 feet wide and 38 feet high. The fallen 

rock increased in thickness from less than an inch at the right rib to about 

two feet near the drill. The rock had been exposed to two blasting cycles, 

the last on the day shift of October 20, 1988. Norton's work area had not 

been roof bolted. 

Mine Safety and Health Administration ("MSHA") Inspector Charles 

McDaniel arrived at the mine about 2:15 p.m. on the day of the accident. He 

went to the accident site to secure the area and issued a section 103(k) order 

(30 U.S.C. § 813(k)) to preserve it until MSHA's investigative team arrived. 

Inspector McDaniel saw chewing tobacco on fallen ground on the left side 

of the jumbo drill, which indicated to him that Norton had scaled the area. 5 

He also saw evidence that Norton had scaled the roof to the right of the jumbo 

drill near the face. McDaniel testified that Norton had scaled and probably 

thought the area was safe. Tr. 1363, 1366. However, McDaniel did observe 

loose ground in the area. He also saw several drill marks, including some 

near the fall site. McDaniel saw evidence that the ground fall had included a 

4 The term "loose ground" is defined as "[b]roken, fragmented, or loosely 

cemented bedrock material that tends to slough.... As used by miners, rock that 

must be barred down to make an underground workplace safe .... " DMMRT at 658. 

In Amax Chemical Company, 8 FMSHRC 1146, 1148 (August 1986), the Commission 

interpreted the term "loose ground" to refer "generally to material in the roof 

(back), face, or ribs that is not rigidly fastened or securely attached and thus 

presents some danger of falling." 

5 The term "scaling" is defined as the "[r]emoval of loose rocks from the 

roof or walls." at 965. 

943 
bel from the roof or back. He testified that drill marks near the fall 

site indicated that Norton had tried to get the belly down but was 

unsuccessful. Tr. 1354-55, 1363-64. Inspector McDaniel concluded that the 

ground fall that killed Norton was unpredictable. Tr. 1363, 1366, 1373. 

On the day after the accident, MSHA Supervisory Mine Inspector Vernon 

Denton and MSHA Mine Inspector William Erickson, the lead investigator, 

visited the mine to investigate the fatality. Erickson issued Citation No. 

3253415 that same day, charging Asarco with a violation of section 57.3401 for 

its failure to examine and test for loose ground in the 2C3 stope prior to the 

accident. Denton modified the citation on December 8, 1988, to clarify the 

narrative section of the violation. At that time, Denton also issued Citation 

No. 3253702, charging Asarco with a violation of section 57.3200, for its 

failure to properly address the hazardous ground conditions with respect to 

the loose ground that fell and killed Norton. Erickson also wrote Citation 

No. 3253416 charging Asarco with a violation of section 57.3200 because loose 

ground had not been removed from the ribs and back in places along the 

driller's travelway between the 2C3 stope and the 2C3 heading (back stope). 

Further, Erickson wrote Citation No·;· 3253417, charging a violation of section 

57.3401, because he observed two miners directly below and in close proximity 

to loose ground in the 3C4 stope. 

The MSHA inspectors determined that each of these four violations were 

of a significant and substantial nature and that Asarco's negligence was high. 

In his decision, the judge concluded that Asarco violated section 

57.3401 (Citation No. 3253415) at the accident site. 12 FMSHRC at 2087. The 

judge found that Norton and Bales failed to properly examine and test the roof 

in the heading of the 2C3 stope. 12 FMSHRC at 2083-84. The judge concluded 

that, had Norton and Bales properly examined the roof, they would have seen 

the belly and the loose ground observed by the Secretary's witnesses. 12 

FMSHRC at 2083. The judge emphasized that, where loose ground is present and 

left uncorrected, there is a prima facie indication that the roof was not 

properly examined. 12 FMSHRC at 2084. 

The judge further found that the roof should have been tested before the 

accident because loose ground was observed by the Secretary's witnesses and 

because the mine's blasting-mucking-drilling cycle created a duty to test the 

roof. 12 FMSHRC at 2084. The judge rejected Asarco's contention that its 

method of testing the roof with the jumbo drill was a competent method of 

testing a mine roof. The judge credited the testimony of the Secretary's 

witnesses that sounding the roof with a steel bar was the only effective 

method to test a mine roof. 12 FMSHRC at 2084-87. The judge found Asarco 

highly negligent in permitting and encouraging its drillers to use the jumbo 

drill instead of a scaling bar to test the roof. 12 FMSHRC at 2087. 

6 The term "belly" is defined as "[a] bulge, or mass of ore in a lode." 

DMMRT at 95. 

944 
With respect to the other section 57.3401 citation (No. 3253417), the 

judge found that the undisputed evidence supported the violation. 12 FMSHRC 

at 2091. He credited the inspectors' opinions that the loose material that 

they observed above the two miners in the 3C4 stope was hazardous and obvious. 

Id. He further found that the fact that the miners were sitting beneath 

loose, hazardous materials was a prima facie indication that the rib had not 

been properly examined. Id. He also found that the violation was the result 

of Asarco's high negligence. Id. 

The judge also concluded that Asarco violated section 57.3200 (Citation 

No. 3253702) at the accident site. 12 FMSHRC at 2091. The judge credited the 

testimony and opinions of some of the Secretary's witnesses that the slab that 

killed Norton was hazardous, detectable, and should have been taken down, 

supported, or dangered off before the accident. Id. He found that Asarco was 

highly negligent in failing to take the necessary precautions to protect 

Norton from the danger of a roof fall in his work area. Id. 

The judge found that the evidence fully supported the other section 

57.3200 citation (No. 3253416), because the roof conditions in the travelway 

were hazardous and obvious. 12 FMSHRC at 2091-92. The judge credited 

Erickson's testimony that there were 40 to 50 pieces of loose material in the 

roof and ribs along the travelway weighing from 10 to 100 pounds. Id. He 

also found Asarco highly negligent in failing to correct the poor ground 

conditions. Id. 

The judge assessed penalties of $6,000 each for the citations issued 

with respect to the accident area and $200 each for the other two citations. 

II. 

Disposition of Issues 

A. Section 57.3401 accident citation (No. 3253415) 

We conclude that the judge erred as a matter of law in his determination 

that Asarco failed to examine and test the roof in the heading of the 2C3 

stope as required by section 57.3401. That section contains two important 

requirements. First, areas where work is to be performed must be examined for 

loose ground before work is started, after blasting, and as conditions 

otherwise warrant during the workshift. Second, where applicable, ground 

conditions in work areas must also be tested. 

That the area where Norton was working, the 2C3 heading, was subject to 

examination is not in dispute. The judge interpreted the examination 

requirement of the regulation to require a careful visual inspection. 

12 FMSHRC at 2083, 2084. This interpretation is also not in dispute. 

The Secretary does not dispute that Bales and Norton looked at the roof 

in the heading. Tr. 943 44, 948-51, 1044-45, 1202-10; S. Exh. 15; A. Exh. 

3. Bales testified that he examined the area when he first arrived at the 2C3 

heading with Norton about 7:25 a.m., the morning of the accident, and that he 

found no cracks, discoloration, loose ground, or any material on the floor. 

945 
Tr. 1203 04, 1214-15, 1225 26. Richard Hubbard, an Asarco miner, confirmed 

that Bales examined the work area and, that he shared Bales' belief that the 

ground was good. Tr. 312. Tr. 943-44, 1045, 1304. At about 

10:50 a.m., Bales visited Norton and again saw no of loose ground. Tr. 

1205-07. Bales also looked at the ground in the area less than an hour before 

the accident and testified that he did not see anything wrong and did not hear 

any indication that the ground was "working." Tr. 1208-10. MSHA Inspector 

McDaniel, the first MSHA person to arrive at the accident scene, testified 

that he believed Norton had examined the area. Tr. 1299. 

Moreover, it is undisputed that Norton scaled the roof in the area with 

the jumbo drill. MSHA Inspector Erickson, who issued the citation, as well as 

MSHA Inspectors Denton and McDaniel essentially acknowledged that the accident 

site had been scaled with the drill. Tr. 66, 209, 212, 428, 432, 437, 508-09, 

526-27, 1299. That the area had been scaled seems to confirm that the roof 

had been examined. 

The Secretary introduced no evidence to show that the area was not 

examined before Norton started working there on the day of the accident. The 

only evidence that the roof was not examined is (a) the fact that part of the 

roof fell and (b) the testimony of MSHA inspectors that they observed some 

areas of loose roof in the heading at the time of the accident investigation. 

The language of the citation makes clear that the inspectors based their 

determination that the roof had not been examined primarily on the fact that a 

roof fall had occurred, rather than on evidence that an examination had not 

been conducted. 

The j concluded that "[w]here loose materials in a roof are present 

and left uncorrected ... , where miners work or travel, there is a prima facie 

indication that the roof was not properly examined within the meaning of 

§ 57.3401." 12 FMSHRC at 2084. That conclusion is incorrect as a matter of 

law. Neither the presence of loose materials, nor the fact that the roof 

fell, by themselves, indicate that the area was not properly examined. Roof 

conditions in a mine are dynamic; a miner can perform a thorough and competent 

examination as required by the standard and determine that the roof is secure 

and yet, at a later time, material can become loose and fall. We agree with 

the judge that examinations must be "careful, informed observations with 

appropriate accountability." 12 FMSHRC at 2084. We disagree, however, with 

the judge's conclusion that a facie indication of violation occurs if 

there has been a fall of ground and loose material is subsequently discovered 

in the area. 

The judge relied, in part, on the existence of a "belly" in the roof of 

the heading to support his conclusion. 12 FMSHRC at 2083. The presence of a 

"belly," however, does not necessarily indicate that the area had not been 

examined; Norton and Bales may have known that a belly was present, but 

determined that it was stable. Indeed, testimony from Asarco miners William 

Ellis and Richard Frazier, indicates that they attempted to remove a belly in 

the subject heading a week before the accident. After scaling the area, they 

concluded the area was safe. at 11. Further, the fact that no action 

is taken to remove or support a belly does not, in itself, establish that the 

roof was not properly examined. A miner may observe an area of questionable 

946 
roof, test the area and erroneously conclude that it is safe. Such conduct 

could constitute a violation of section 57.3200, requiring that loose roof be 

supported or taken down, but it would not by itself constitute a violation of 

section 57.3401. The judge's conclusion has the effect, in cases where there 

has been a fall of ground, of improperly shifting to the operator the burden 

of proving that an examination was conducted. We hold that it is the 

Secretary's burden to prove that a proper examination was not conducted. 

We turn to the testing requirement of the regulation. The judge found 

that Asarco failed to test the ground conditions in the heading because a 

jumbo drill was used to test the roof. The judge held that the drill was not 

an adequate device for testing a mine roof. 12 FMSHRC at 2084. For the 

reasons that follow, we reject the judge's finding that Asarco's use of the 

jumbo drill was not a permissible means of testing the roof. 7 

The standard does not specify how testing for loose ground is to be 

performed, nor .has the Secretary described the procedure or set forth 

guidelines in her Program Policy Manual or other interpretative material. The 

Secretary has not prohibited mine o~erators from using jumbo drills to test 

for loose ground. 8 Oral Arg. Tr. 23. The preamble to this safety 

standard emphasizes that it was drafted to be "flexible enough to accommodate 

the variety of situations which may arise while assuring the safety of persons 

working in the mines." 51 Fed. Reg. 36192-93 (October 8, 1986). Counsel for 

the Secretary acknowledged this fact by stating that the standard is 

"performance-oriented" so that it could be applied to "a lot of different 

situations." Oral Arg. Tr. 23. 

Section 57.3401 is not a detailed standard but rather is of the type 

made "simple and brief in order to be broadly adaptable to myriad 

circumstances." Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981); 

Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December 1982). Nevertheless, 

such a broad standard must afford reasonable notice of what is required or 

proscribed. 5 FMSHRC 3, 4 (January 1983). The safety 

standard must "give the person of ordinary intelligence a reasonable 

opportunity to know what is prohibited, so that he may act accordingly." 

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); see also, Phelps Dodge 

v. FMSHRC, 681 F.2d 1189, 1192 (9th Cir. 1982). 

Asarco asserts that it has been testing the roof at this mine with jumbo 

7 Although Asarco contends that the judge expanded the scope of the testing 

requirement of section 57.3401 beyond that set forth in the standard, on review, 

Asarco does not dispute that testing was necessary in the heading on the day of 

the accident. Consequently, we need not decide whether the judge's conclusions 

as to when testing is required by the standard are correct. 

8 Asarco's use of the jumbo drill in testing involves "rattling the back." 

Under this procedure, the jumbo drill is vibrated or pounded against the roof to 

detect loose material and to scale it. A. Br. 9 n.2. 

947 
drills for a number of years. Asarco contends that its testing method is safe 

and effective and that it reasonably believed that this method complied with 

the requirements of the standard. When faced with a challenge to a safety 

standard on the grounds that it fails to provide adequate notice of prohibited 

or required conduct, the Commission has applied an objective standard, i.e., 

the reasonably prudent person test. The Commission recently summarized this 

test as "whether a reasonably prudent person familiar with the mining industry 

and the protective purposes of the standard would have recognized the specific 

prohibition or requirement of the standard." Ideal Cement Co., 12 FMSHRC 

2409, 2416 (November 1990). See also, Lanham Coal Co., 13 FMSHRC 1341 

(September 1991). "In order to afford adequate notice and pass constitutional 

muster, a mandatory safety standard cannot be 'so incomplete, vague, 

indefinite or uncertain that [persons] of common intelligence must necessarily 

guess at its meaning and differ as to its application.'" , guoting Alabama 

By-Products Corp., 4 FMSHRC at 2129 (citations omitted). 

The Secretary seems to take the position in this case that a scaling bar 

is the proven and effective means of testing for loose ground and, if a mine 

operator wishes to use another method, it does so at its own risk. The 

language of the regulation, however, is not so limiting. If the Secretary 

intended to require the exclusive use of a scaling bar to test for loose 

ground in all but a few. limited circumstances, she could have set forth that 

requirement in her regulation or in interpretative materials. Absent such an 

express requirement, we are not convinced that a reasonably prudent person 

familiar with the mining industry would have recognized that testing the roof 

with the jumbo drill fails to comport with the testing requirements of section 

57.3401. The judge, in finding that testing with a jumbo drill was 

inappropriate because the noise from the drill would mask the test sounds 

coming from the roof, relied on testimony from Supervisory MSHA Inspector 

Denton, MSHA ground con~rol expert Billy Owens, and MSHA noise expert Richard 

Goff. Neither Denton, Owens, or Goff, however, had ever used a jumbo drill to 

test ground or for any other purposes. Tr. 106, 149, 182 83, 844-45, 1428, 

1522-23. Denton acknowledged that he was not familiar with the jumbo drill 

and did not know how to test with it. Tr. 182, 183. Nor is there any 

indication that Denton, Owens, or Goff conducted noise tests of a jumbo drill 

testing for loose ground. See Tr. 182, 183, 1449, 1501, 1520, 1523. While 

Owens testified that investigations have found, in certain instances, that use 

of the jumbo drill for testing ground has not been accurate, he also conceded 

that testing with a scaling bar is not always accurate either. Tr. 774-75, 

806-07. No objective evidence, such as test results, was presented by the 

Secretary as to the accuracy of either method. 

Asarco presented evidence to establish the effectiveness and safety of 

using a jumbo dri.11 to test the roof, which the judge did not directly address 

in his decision. Jack Parker, an independent expert in ground control 

experienced in the use of the jumbo drill, testified that using a jumbo drill 

to test is common, safe, and accepted throughout the mining industry. Tr. 

1549, 1550-51, 1555-56, 1558-59. Patrick Garven, a representative of the 

largest manufacturer of underground drilling equipment, who was also qualified 

as an expert witness, testified that testing with a jumbo drill is a safe, 

common, and effective practice, and that one can distinguish between good and 

bad ground conditions when rattling the back based on the sound changes. Tr. 

948 
1466, 1472-74. A number of Asarco miners, including Richard Hubbard, William 

Ellis, Richard Frazier, Richard Abdella and Carlyle Bales, testified as to the 

effectiveness of using the jwnbo drill to test for loose ground. Hubbard, 

Ellis and Frazier, witnesses proferred by the Secretary, as well as Abdella, 

testified that the machine would make a much different sound on solid rock 

than on hollow rock typifying loose ground. Tr. 279-80, 323, 357, 554-56, 

977 78. Asarco's mine safety director Hendrix testified that for at least 

three years the jumbo drill had been used for testing ground at the Immel Mine 

with MSHA's knowledge. Tr. 31. 

Also, MSHA inspectors testified that using the jumbo drill to test was 

MSHA Inspector Vincent D'lnnecenzo, who also inspected the mine 

after the accident, testified that rattling the back was a common industry 

for testing for loose ground, and that it was a permissible practice. 

ition Tr. 27-28. MSHA Inspector McDaniel testified that he has observed 

of "rattling the back" for purposes of testing and considers it 

safe, and a common practice. Tr. 1291-93, 1345. 

The judge failed to directly 'addressAsarco's evidence that drill 

can detect loose ground by differences in vibration and by visual 

observations of the rock being rattled, and that testing is not solely reliant 

on sound. Parker testified that in addition to differences in sound 

frequencies, one would look for dust dribbling from the roof, and observe 

whether water used to suppress dust would come out of the rock at a different 

location than where it was squirted in, suggesting a continuous crack. 

Tr. 1557. Parker further testified that the drill behaves differently when 

going from hard to loose ground (Tr. 1557-58), and Frazier testified that, if 

there was bad ground, there would be dribbling or shaking in the area. Tr. 

568 69. Hubbard emphasized the importance of sight when testing with the 

jumbo drill. Tr. 289-90. 

, the judge did not expressly address noise test data collected 

noise expert James Barnes, supporting the claims by Asarco's 

miners that they are able to distinguish between solid and loose ground using 

a jumbo drill. Tr. 1631-33. Barnes testified that he was able to distinguish 

drummy, loose ground from solid ground by the difference in noise frequencies. 

Tr. 1632-33, 1640-42, 1644-45. 

witnesses testify to offer their scientific opinions on technical 

matters to the trier of fact. If the opinions of expert witnesses conflict in 

a , the judge must determine which opinion to credit, based on such 

factors as the credentials of the expert and the scientific bases for the 

's opinion. In such cases, the judge should set forth in the decision 

the reasons for crediting one expert's opinion over that of another. In the 

case, a number of well qualified experts presented their opinions on 

the effectiveness of using a jumbo drill to test the roof, which the judge 

apparently ected, but the judge did not set forth in his decision any 

reasons for rejecting their opinions. In fact, the judge rejected the opinion 

testimony of Jack Parker, a highly qualified roof control expert, without 

explanation or even any mention in the decision of his testimony. 

Based on the evidence of record, we conclude that the Secretary has 

949 
failed to show that a reasonably prudent person familiar with the mining 

industry would have recognized that a jumbo drill could not be used 

effectively to test for loose ground under section 57.3401. Prior to the 

citation in question, Asarco was provided with no notice from the language of 

the regulation, from the Secretary's interpretive bulletins or other 

materials, or from earlier citations that the Secretary did not consider a 

jumbo drill to be a permissible means to test a roof. 

Accordingly, we conclude that the judge erred in finding that Asarco 

violated section 57.3401 for failure to examine and test in the 2C3 heading. 

B. Section 57.3401 stope citation (No. 3253417) 

The judge held that because the inspectors found "hazardous and obvious" 

loose ground above the two miners sitting in an area of the 3C4 stope, there 

was a prima facie indication that the rib had not been examined in compliance 

with section 57.3401. 12 FMSHRC at 2091. The judge upheld the citation 

because Asarco failed to produce evidence that would contradict this prima 

indication. Id. We conclude-that the judge erred as a matter of law. 

Inspector Erickson, when he wrote the citation, determined that the 

loose ground was about fifteen feet above the two men and consisted of rocks 

of various sizes spread over an area about ten-feet wide. The appearance of 

loose ground does not by itself establish a violation of section 57.3401. The 

judge presumes that the presence of loose ground is sufficient to establish 

that the ground had not been examined, a presumption we deem erroneous. The 

roof and rib in the area may have been examined prior to development of the 

hazardous condition. Moreover, the examiners may have determined, correctly 

or incorrectly, that the loose ground did not require barring down. 

The burden of proving a violation is on the Secretary. The inspectors 

did not test that the ground had not been examined, but that two miners 

were s beneath loose material (Tr. 138-39; S. Exh. 6); when asked 

whether the loose material had been examined or tested, Inspector Denton 

replied: "Well, they hadn't taken any action to take it down." Tr. 139. 

Inspector Erickson's testimony provides no additional detail. Tr. 439. The 

evidence falls short of that required to establish a violation. 9 

Accordingly, the judge erred in finding that Asarco violated section 

57.3401 in the 3C4 heading. 

C. The section 57.3200 accident citation (No. 3253702) 

Section 57.3200 states, as pertinent, that "[g]round conditions that 

create a hazard to persons shall be taken down or supported before other work 

or travel is permitted in the affected area." The judge found that the slab 

that killed Norton was hazardous, detectable, and should have been taken down, 

9 A citation for violation of section 57. 3200 for hazardous ground may have 

been appropriate under the circumstances, but that question is not before the 

Commission. 

950 
supported, or dangered off before the accident. 12 FMSHRC at 2091. Asarco 

argues that the j erred because the fatal ground fall was unpredictable. 

The purpose of section 57.3200 is to require elimination of hazardous 

conditions. The fact that there was a ground fall is not by itself sufficient 

to sustain a violation. Rather, the Secretary is required to prove that there 

was a reasonably detectable hazard before the ground fall. We conclude that 

the Secretary failed to meet this burden and that the judge's conclusion that 

the hazardous ground was detectable before the accident is not supported by 

substantial evidence. 

As we have consistently recognized, the term "substantial evidence" 

means "such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion." See, ~. Mid-Continent Resources. Inc., 6 FMSHRC 

1132, 1137 (May 1982) quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 

229 (1938). While we do not lightly overturn a judge's factual findings and 

credibility resolutions . , Hall v. Clinchfield Coal Co., 8 FMSHRC 1624, 

1629-30 (November 1986)), neither are we bound to affirm such determinations 

if only slight or dubious evidence ,is present to support them. ~, 

732 F.2d 1288, 1293 (6th Cir. 1984); 

Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We 

are guided by the settled principle that in reviewing the whole record, an 

appellate tribunal must also consider anything that "fairly detracts" from the 

weight of the evidence that may be considered as supporting a challenged 

finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951). 

The testimony in the record, addressing the conditions in the 2C3 

heading on October 24, 1989, before the accident, indicates that there did not 

appear to be loose ground and that the condition of the roof was good. 

Carlyle Bales, Norton's foreman, was in the 2C3 heading at 7:25 a.m., 10:50 

a.m., and 12:25 p.m. and saw no loose ground. Tr. 1203-04, 1205-07, 1208-10, 

:214-15, 1225-27. Richard Hubbard, an Asarco miner was in the 2C3 heading at 

7:25 a.m. and also testified that the ground in the area looked good. Tr. 

312. Final , Richard Abdella, another miner, was in the 2C3 heading at about 

12:10 p.m and saw no s of loose ground. Tr. 987-88, 1000. 

The testimony also indicates that in the days before the accident, the 

ground in the 2C3 was safe. About a week earlier, William Ellis and 

Richard Frazier, Asarco miners, noticed there was a belly in the heading and 

tried without success to take it down. After it had been scaled, Ellis and 

Frazier thought the area was safe. Tr. 318-19, 326-27, 330, 338-39, 364, 560-

61, 590-91, 616 Ellis specifically testified that the belly "wasn't loose." 

Tr. 330. In addition, while the heading had been blasted on October 20, 1988, 

Hobart Tucker, who mucked the heading on the evening of October 21 and morning 

of October 22, testified that the ground looked good and the area was suitable 

for Tr. 378, 379-81, 389. 

The evidence establishes that ground had been scaled. See, ~, A. 

Exhs. 16, 26; Tr. 168, 432, 505-10, 513. Inspector Denton, who issued the 

citation, acknowledged that the area had probably undergone at least some 

scaling. Tr. 66. Denton also conceded that early drafts of MSHA's accident 

inves report stated that roof had been scaled with the jumbo drill, 

951 
but that all mention of scaling or taking down loose roof was subsequently 

removed from the report. Tr. 209 12. Inspector Erickson also acknowledged 

that some scaling had evidently been done at the accident site. Tr. 428, 432, 

437, 508-09, 526-27. Inspector McDaniel testified that he believed that 

Norton had scaled the area and that Norton probably considered the area to be 

safe. Tr. 1363, 1366. McDaniel specifically stated that drill marks he saw 

near the fall site indicated that Norton had tried to remove the belly but was 

unsuccessful and that Norton must have felt the area was safe. Tr. 1354-55, 

1363-64, 1366. Indeed, McDaniel, who was the first MSHA official at the scene 

of the accident, testified that the ground fall was unpredictable. Tr. 1363, 

1366, 1373. 

The Secretary premises her case on the assumption that the rock that 

fell had been loose and could have been detected by proper testing. The judge 

held that Asarco's use of a jumbo drill to test the roof did not meet the 

requirements of section 57.3401. As we have concluded, a reasonably prudent 

person familiar with the mining industry would not have recognized that 

testing the roof with a jumbo drill did not fulfill the requirements of that 

section. It is not disputed that N,qrton used the jumbo drill to test the roof 

in the accident area. 

The Secretary's argument for affirming the citation relies mainly on the 

ground fall and the conditions that were observed after the accident. As 

previously discussed, the Secretary, to meet her burden of proof, must show 

that ground conditions creating a hazard were not taken down or supported. 

Thus, the Secretary must first show that hazardous ground conditions existed 

at the time Norton was working in the area. The Secretary's witnesses who 

were knowledgeable of the conditions in the heading before the accident, 

including Hubbard, Ellis, Tucker, and Frazier, believed that the accident site 

roof was safe at the time they were there. The judge c>pparently presumed 

that, because there had been a roof fall and some loose roof was observed 

during the accident investigation, predictable hazardous ground conditions 

could have been detected at the time Norton was working in the area. 

Furthermore, to the extent the Secretary relied on Asarco's failure to roof 

bolt, we note that there is no roof bolting requirement for metal mines and 

Asarco was not charged with a failure to roof bolt. See 30 C.F.R. § 57.3360. 

Even though MSHA ground control expert Billy Owens, Inspector McDaniel, 

William Ellis, and Richard Frazier testified that the heading may have been 

too wide, Owens' ground control evaluation of the accident site did not 

mention the width of the heading as a factor. Ellis testified that the ground 

fall was a "freak accident", both he and Frazier testified that, when they 

worked in the heading, they felt it was safe, and McDaniel thought the 

accident was unpredictable. S. Exh. 12; Tr. 326-27, 329, 560 61, 616, 1363, 

1366, 1373. 

The Commission, in Amax Chemical Corp., supra, 8 FMSHRC at 1149, stated 

that a variety of factors should be considered in determining whether loose 

ground is present, including but not limited to the results of sounding tests, 

the size of the drummy area, the presence of visible fractures and sloughed 

material, "popping" and "snapping" sounds in the ground, the presence, if any, 

of roof support, and the operating experience of the mine or any of its 

particular areas. In evaluating the facts of this citation against the Amax 

952 
Chemical criteria, we note that the area had been examined and tested. All of 

the testimony concerning the condition of the heading before the accident 

indicates that the ground conditions were not believed to be hazardous, and 

scaling had been performed. There was no indication of any "popping" or 

"snapping" sounds. In addition, the dolomite formation in the mine was stable 

and the mine was not experiencing massive ground failures. 12 FMSHRC at 2076. 

Accordingly, we conclude that the judge erred in finding that Asarco 

violated section 57.3200 for failing to take down or support ground in the 2C3 

heading subsequently deemed to be hazardous. 

D. Section 57.3200 travelway citation (No. 3253416) 

The judge held that Asarco violated section 57.3200 because of his 

finding that the roof conditions in the travelway were hazardous and obvious. 

12 FMSHRC 2092. Asarco argues that the judge ignored the particularity 

requirement of section 104(a) of the Mine Act, 30 U.S.C. § 814(a), asserting 

that the citation is vague and encompasses vast areas of the mine. Asarco 

also argues that at the hearing neit:her Inspector Denton nor Erickson could 

identify on a mine map the location of the loose ground in the travelway. 

Finally, Asarco argues that the roof in the travelway was safe. We find 

Asarco's contentions to be without merit. 

Section 104(a) requires inspectors to issue citations to operators in 

written form describing the nature of the violation with particularity. Jim 

Walter Resources, Inc., 1 FMSHRC 1827, 1829 (November 1979). This requirement 

has two primary purposes. The first is to ensure that the operator is 

adequately advised of the conditions so that he can abate them. Id. The 

second is to give the operator fair notice of the charges. Id. The 

Commission held in Jim Walter that the lack of a citation's specificity does 

not affect its validity unless the operator is thereby prejudiced. Id. 

Asarco has not demonstrated any legal prejudice with respect to an inability 

to abate the violation or to defend against the citation. 

We conclude that substantial evidence supports the judge's finding of 

violation. Erickson testified that while traveling to the accident site with 

Denton and Asarco officials, he observed 40 to 50 pieces of loose material in 

the roof and ribs along the travelway, each weighing from 10 to 100 pounds. 

Tr. 417, 419, 426. Denton also testified to the presence of loose material in 

the travelway between the 2C3 back stope and heading. Tr. 136-37. Erickson 

and Denton further testified that they pointed out the loose areas to Asarco 

officials as they proceeded to the accident site. Tr. 163, 419. The judge 

credited this testimony. 12 FMSHRC at 2092. In addition, McDaniel testified 

that as he was going to the scene of the accident, he saw loose ground in the 

travelway on pillars and ribs. Tr. 1359. The mine manager acknowledged that 

Denton and Erickson had pointed out loose ground generally. Tr. 1133. 

Accordingly, we affirm the judge's finding that Asarco violated section 

57.3200 for loose ground in the travelway leading to the 2C3 stope heading. 

953 
E. 

Asarco argues that the judge erred in finding Asarco highly negligent 

with respect to the four violations. Because we are vacating all but one 

citation, our discussion is limited to negligence with respect to that 

violation, Citation No. 3253416. 

The judge found Asarco highly negligent with respect to the section 

57.3200 citation in the travelway based on Asarco's failure to take down or 

support loose material that was "hazardous and obvious." 12 FMSHRC at 2092. 

In this regard, the judge credited MSHA Inspector Erickson's testimony that 

there were 40 to 50 pieces of loose material in the roof and ribs along the 

travelway weighing from 10 to 100 pounds. Id. The judge also relied on 

Erickson's testimony that he saw more loose material in the travelway than he 

had seen at any other underground mine for "quite a period of time." Id.; Tr. 

418-19. We conclude that this testimony constitutes substantial evidence 

supporting the judge's finding. Accordingly, we affirm the judge's finding 

that Asarco was highly negligent with respect to Citation No. 3253416. 

F. Other Issues 

Asarco also alleges that: (1) Citation Nos. 3253415 and 3253702 (the 

accident citations) are impermissibly duplicative; (2) Inspector Denton was a 

biased witness; and (3) the judge intervened to a prejudicial degree in 

examining certain witnesses thereby improperly becoming an advocate for the 

Secretary. In view of our decision in this case, these issues are essentially 

moot. 

With respect to the travelway citation (No. 3253416), Denton's testimony 

was either undisputed or, where disputed, corroborated by other independent 

testimony. While Asarco's objection to the judge's examination of witnesses 

relates solely to the two accident citations, we note that administrative law 

judges have considerable leeway in conducting a hearing and in developing a 

complete and accurate record. Ruhlen, 

Administrative Conference of the United States, at 35 (1974). 

9 54 
III. 

For the foregoing reasons, we reverse the judge's findings that Asarco 

violated section 57.3401 (Citation Nos. 3253415 and 3253417), and that Asarco 

violated section 57.3200 (Citation No. 3253702) in the 2C3 heading. 

Accordingly, we vacate citation Nos. 3253415, 3253417, and 3253702. We affirm 

the judge's finding that Asarco violated section 57.3200 (Citation No. 

3253416) in the 2C3 travelway and his finding that Asarco was highly 

negligent. 

Distribution 

Henry Chajet, Esq. 

Jackson & Kelly 

1701 Pennsylvania Ave., N.W. 

Suite 650 

Washington, D.C. 20006 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Arlene Holen, Commissioner 

L. Clair Nelson, Commissioner 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

955 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF IABOR, 

June 9, 1992 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) Docket Nos. wEVA 90-3 

wEVA 90-8 

v. WEVA 89-234-R through 

WEVA 89-245-R 

CONSOLIDATION COAL COMPANY 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

BY: Ford, Chairman; , Doyle,,_ and Nelson, Commissioners 

This consolidated contest and civil penalty proceeding arises under the 

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

Act" or "Act") and involves the validity of 24 citations issued to 

Consolidation Coal Company ("Consol") alleging violations of 30 C.F.R. 

§ 50.30-l(g)(3). 1 The citations allege that Consol violated the cited 

1 30 C.F.R. § 50.30 provides, in pertinent part: 

§50.30. Preparation and submission of MSHA 

Form 7000-2--Qua.rterly Employment and Coal 

Production Report. 

(a) Each operator of a mine in which an 

individual worked during any day of a 

calendar quarter shall complete a MSHA Form 

7000 2 in accordance with the instructions 

and criteria in §50. 30-1 and submit the 

to the MSHA Health and Safety 

Center. . . . Each operator shall 

retain an operator's copy at the mine 

office nearest the mine for 5 years after 

the submission date. 

* * * * 

§50.30 1 General instructions for 

completing MSHA Form 7000-2. 

* * * * * 

Employee Hours, and Coal 

956 
regulation by significantly over-reporting to the Secretary of Labor's Mine 

Safety and Health Administration ("MSHA") the number of hours that its 

employees worked at its Robinson Run No. 95 Mine and its Blackstone No. 1 Mine 

in each quarterly report for 1986, 1987 and 1988. Commission Chief 

Administrative Law Judge Paul Merlin upheld each of the citations. 12 FMSHRC 

167 (January 1990)(ALJ); 12 FMSHRC 1129 (May 1990)(ALJ). Consol petitioned 

for review of the judge's decision, asserting that the judge erred in 

(A) concluding that the cited regulation was validly promulgated in accordance 

with the Mine Act; (B) concluding that the Secretary of Labor is authorized 

under the Act to assess civil penalties for violations of the cited 

regulation; (C) finding that Consol violated the regulation; and (D) finding 

that the violations were the result of Consol's high negligence. We granted 

Consol's petition and heard oral argument. For the reasons that follow, we 

affirm the judge's decision. 

I. 

The citations were issued in 1989 following an MSHA audit of the records 

that Consol is required to maintain under 30 C.F.R. Part 50. Section 50.30 

requires coal mine operators to submit information concerning employment and 

coal production to MSHA, on Form 7000-2, on a quarterly basis. One column of 

the form requires operators to report the total number of "employee-hours 

worked" during the quarter. Froml986 through 1988, Consol reported to MSHA 

the total number of hours that it estimated employees were present at its 

mines rather than the number of hours that employees worked. Consol obtained 

this estimate by adding additional time to the number of employee-hours 

reflected in its payroll or other time records. It added 45 minutes per 

employee per day for hourly employees, and 90 minutes per employee per day for 

salaried employees. The citations charge that Consol "significantly over 

reported employee hours" on Form 7000-2 by adding 45 minutes each day for 

hourly employees to cover "time spent on mine property before and after work 

* * * * * 

(3) Total employee-hours worked during the 

quarter: Show the total hours worked by 

all employees during the quarter covered. 

Include all time where the employee was 

actually on duty, but exclude vacation, 

holiday, sick leave, and all other off-duty 

time, even though for. Make certain 

that each overtime hour is reported as one 

hour, and not as the overtime pay multiple 

for an hour of work. The hours reported 

should be obtained from payroll or other 

time records. If actual hours are not 

available, they may be estimated on the 

basis of scheduled hours. Make certain not 

to include hours paid but not worked. 

957 
hours," in violation of 30 C.F.R. § 50.30 1( (3). 

At the outset of this proceeding before the judge, Consol filed a motion 

to dismiss on the grounds that (1) Part 50 of the Secretary's regulations is 

unenforceable because it was improperly promulgated by the Secretary of the 

Interior; and (2) civil penalties cannot be imposed under section 110( of 

the Mine Act for the alleged violations. Consol argued that, because the 

in question was promulgated after the Mine Act was enacted by 

s but before the Act's effective date, the regulation was invalid. In 

the alternative, it argued that the civil penalties assessed by the 

were not authorized because, under the Mine Act, penalties may be assessed 

only for violations of the Act and for violations of mandatory safety or 

health standards. In an order dated January 24, 1990, Chief Administrative 

Law Judge Paul Merlin denied Consol's motion. 12 FMSHRC 167 (January 

1990)(ALJ). The judge held that the of the Interior was authorized 

to issue the reporting regulations at the time of their promulgation and that 

civil can be imposed by the of Labor for violations of 

these regulations. Consol then filed a petition seeking interlocutory review 

of the judge's order, which was denied by the Commission on March 8, 1990. 

The parties next filed with the j "Joint Stipulations of Law and 

Facts" and they each filed separate motions for summary judgment. In a 

decision dated May 24, 1990, the Judge the Secretary's motion for 

swnmary judgment, upheld each of the citations and assessed civil penalties. 

12 FMSHRC 1129 (May 1990)(ALJ). The judge determined that Consol violated 

section 50.30 l(g)(3) because MSHA has required the reporting of 

hours worked as recorded on payroll records or other time records. 

The stipulated facts are set out in full in the judge's decision. 

12 FMSHRC at 1133-42. Consol requires that miners report to work prior to the 

of their shift in order to prepare for work and requires that they 

remain on mine property after their shift to return equipment and supplies 

to departing. Stips. 24 & 25. Because miners are not paid for such 

is not reflected on Consol's records. Stip. 28. Consol is 

by section 50.20 to report occupational injuries and accidents to 

MSHA. Stip. 11. Some of the injuries by Consol to MSHA during 1986-

88 occurred before and after the miners' shifts. Stips. 20 & 21. As a 

consequence, Consol considered that all time that employees were on mine 

was "exposure time. 11 Stip. 23. 

No accurate record is kept by Consol of the amount of pre- and postshift time employees are on mine property. 27. Consol estimates that 

each employee spends 45 minutes more per on mine property than is 

reflected on its payroll records. Stip. 37. Consol believes that if the 45 

minute estimate is added to the time shown in the payroll records, the sum 

reflects the number of hours each hourly at the mine site on a 

basis, i.e., the exposure hours. Stip. 38. For purposes of this 

, the Secretary agreed that Consol's of adding 45 minutes 

to the time shown in the payroll records "reflect[s] the actual time spent by 

hourly at [Consol's mines] on the when they are at the mine 

site." . 46. The parties further that payroll records 

ref]ect time worked are not kept for salaried employees and that Consol 

958 
estimates that salaried employees spend an additional 90 minutes per day on 

mine property. Stips. 30 & 31. The Secretary did not cite Consol for 

reporting the estimated exposure hours of salaried employees. Stip. 33. 

Section 50.20(a) requires mine operators to report to MSHA any accident, 

occupational injury or occupational illness. Stip. 10. The Commission 

has interpreted section 50.20(a) to require the reporting of an occupational 

injury, as defined at section 50.2(e), if it occurs on mine property, whether 

or not such injury occurred during the miner's shift. Freeman United Coal 

Mining Co., 6 FMSHRC 1577, 1578-79 (July 1984); See Stip. 11. In Freeman, the 

Commission held that there need not be a causal nexus between the miner's work 

and the injury sustained. 6 FMSHRC at i578-79. The injury in that case 

occurred when a miner experienced back pain while putting on his work boots in 

the mine's wash house about one hour before the beginning of his shift. 6 

FMSHRC at 1578. The Commission affirmed the judge's finding that the operator 

violated section 50.20(a) by not reporting the injury to MSHA. 

Prior to the Commission's decision in Freeman, Consol reported to MSHA 

as "hours worked" the number of emplpyee hours set forth in its payroll 

records, but not pre- and post-shift exposure time. Stip. 42. Likewise, 

Consol did not report, under section 50.20(a), injuries that occurred to 

miners before and after their shifts. After the Freeman decision, Consol 

began to report such pre- and post-shift incidents and also exposure time on 

mine property. Stip. 43. Consol did not inform MSHA that it had changed its 

method of calculating reportable hours. Stip. 45. The Secretary did not 

issue any policy memoranda or otherwise provide any guidance to operators 

regarding the effect of the decision. Stip. 44. The Secretary did 

not discover that Consol was including pre- and post-shift hours on its Form 

7000-2 until MSHA audited Consol's records. Stip. 45. 

MSHA uses the data gathered from sections 50.20 and 50.30 to calculate 

rates of injury occurrence ("incident rates") for each mine, operator, state, 

MSHA District and Subdistrict, and for the nation. Stip. 13; 30 C.F.R. 

§ 50.1. The incident rate for a given mine, for example, is calculated by 

dividing the total number of occupational injuries, occupational illnesses and 

accidents reported in a quarter (multiplied by a constant: 200,000) by the 

total employee-hours worked during such quarter. 30 C.F.R. § 50.1; Gov. Exb. 

1, p. 17. Incident rates are used by MSHA to analyze injury and illness 

trends and to allocate inspection resources. Stip. 16. 

In his order of January 24, 1990, the judge determined that 30 C.F.R. 

Part 50 was validly promulgated by the Secretary of the Interior under the 

Coal Mine Health and Safety Act of 1969, 30 U.S.C. 801 et seq. (1976)(amended 

1977)(the "Coal Act") and was properly transferred to the Secretary of Labor 

by the Mine Act. The Secretary of the Interior promulgated Part 50 on 

December 30, 1977, after the enactment date of the Mine Act, November 9, 1977, 

but before its effective date, March 9, 1978. The judge determined that Part 

50, adopted under the Coal Act, remained in effect as a result of section 

30l(c)(2) of the Federal Mine Safety and Health Amendments Act of 1977, 

9 59 
30 U.S.C. § 96l(c)(2)("Amendments Act"). 2 12 FMSHRC at 170. He rejected 

Consol's argument that the Secretary of the Interior lacked authority to issue 

the reporting regulations after the Mine Act was enacted, and that only 

regulations in effect on its enactment date were validly transferred from the 

Department of the Interior to the Department of Labor. 12 FMSHRC at 170-71. 

The judge also rejected Consol's argument that, because Part 50 is a 

regulation, not a mandatory safety or health standard, penalties cannot be 

assessed for the alleged violations. 12 FMSHRC at 172. He held that a 

violation of Part 50 is also a violation of the Mine Act. 12 FMSHRC at 173. 

He reasoned that sections llO(a), 104(a) and lOS(a) of the Mine Act, which 

authorize the Secretary of Labor to issue citations for violations of 

regulations and to notify the operator of penalty assessments for such 

citations, must be read in concert. The judge concluded that the 

Secretary is authorized to assess penalties for violations of Part 50. 

In his decision of May 24, 1990, the judge determined that the subject 

regulation requires each operator to report the total hours worked by all 

employees, and that for hourly employees the total hours worked for reporting 

purposes are the hours recorded on.payroll or other similar time records. 

12 FMSHRG at 1142. He determined that the Secretary has consistently 

interpreted the language of the regulation to require operators to obtain 

"hours worked" from such records and that her interpretation of the regulation 

is dispositive of the case. Id. He granted the Secretary's Motion for 

Summary Judgment and found that Consol had violated the subject regulation. 

2 Section 30l(c) of the Amendments Act provides in part: 

(c) Unexpended appropriations; personnel; property; 

records; obligations; commitments; savings provisions; 

pending proceedings and suits 

* * * * * 

(2) All orders, decisions, determinations, rules, 

regulations, permits, contracts, certificates, licenses, 

and privileges (A) which have been issued, made, 

granted, or allowed to become effective in the exercise 

of functions which are transferred under this section by 

any department or agency, any functions of which are 

transferred by this section, and (B) which are in effect 

at the time this section takes effect, shall continue in 

effect according to their terms until modified, 

terminated, superseded, set aside, revoked, or repealed 

by the Secretary of Labor, the Federal Mine Safety and 

Health Review Commission or other authorized officials, 

by any court of competent jurisdiction, or by operation 

of law. 

960 
The judge determined, however, that the violations were non-serious and 

technical in nature because the method the Secretary uses to calculate 

incident rates produces "flawed data." 12 FMSHRC at 1144-46. He determined 

that the time frame for injuries that must be reported to MSHA for use in the 

numerator of the formula is not consistent with the time frame for hours 

worked that must be reported to MSHA for use in the denominator of the 

formula. 12 FMSHRC at 1144. The judge held that the formula of 30 C.F.R. 

§ 50.l produces "an inherently flawed injury incidence rate" because "the 

numerator and denominator [of the formula] are mismatched with the former 

premised upon place but the latter predicated upon time and place." Id. 

The judge concluded that the violations were the result of Consol's high 

negligence. 12 FMSHRC at 1146. He found that Consol intentionally changed 

its method of reporting hours worked and took "the law into its own hands by 

deciding for itself what the law means and how it can best be applied." Id. 

II. 

Disposition of Issues 

A. Whether the Regulations in 30 C.F.R. Part 50 are Enforceable. 

The judge concluded that section 30l(c)(2) of the Amendments Act 

(n. 2, supra) is a broad savings clause that carried over to the Mine Act the 

Part 50 regulations promulgated by the Secretary of the Interior under the 

Coal Act. 12 FMSHRC at 170. In relevant part, section 301(c)(2) provides 

that all "regulations ... which have been issued ... or allowed to become 

effective in the exercise of functions which are transferred under this 

section ... which are in effect at the time this section takes effect, shall 

continue in effect according to their terms until modified, terminated, 

superseded, set aside, revoked or repealed by the Secretary of Labor .... " 

Section 30l(a) of the Amendments Act, 30 U.S.C. § 96l(a), transferred to the 

Secretary of Labor the enforcement functions of the Secretary of the Interior 

under the Coal Act and the Federal Metal and Nonmetallic Safety Act, 30 U.S.C. 

§ 721 et seq. (1976)(repealed)(the "Metal Act"). Section 307 of the 

Amendments Act, 30 U.S.C. § 801 note, provides that "this Act and the 

amendments made by this Act ... shall take effect 120 days after the date of 

enactment of this Act." The Act was enacted on November 9, 1977, and became 

effective March 9, 1978. 

Within the meaning of section 30l(c)(2) of the Amendments Act, the 

regulation in question was "issued" and "allowed to become effective" by 

Interior in the exercise of its mine safety and health functions and the 

regulation was "in effect" on the date the Mine Act became effective. 

Consol 3 argues that the pivotal date is the Mine Act's enactment date rather 

than its effective date. Consol contends that passage of the Mine Act 

prohibited the Department of the Interior's promulgation of Part 50 because 

3 

Association 

decision to 

The Commission permitted amicus curiae briefing by the National Coal 

("NGA"), a mining industry trade association. Reference in this 

arguments advanced by Consol includes the arguments of the NCA. 

961 
Congress intended to place mine safety and health rulemaking authority in the 

hands of the Secretary of Labor immediately upon its enactment. Consol 

maintains that, because Congress did not trust the Department of the Interior 

to protect the safety and health of miners, Congress curtailed Interior's 

rulemaking authority so that only those standards and regulations already in 

effect on the enactment date of the Mine Act would be transferred from 

Interior to Labor. 

In making its arguments, Consol relies upon section 30l(b)(l) of the 

Amendments Act, 30 U.S.C. § 96l(b)(l). 4 It contends that this provision 

states that only regulations that were "in effect on November 9, 1977" were to 

be transferred to the Secretary. Consol concludes that "Interior's attempted 

promulgation of Part 50 (on December 30, 1977) after enactment of the Mine 

Act, and prior to its effective date (March 9, 1978) was an ultra vires 

attempt to transfer to Labor regulations that did not exist when the Mine Act 

was passed." Consol Br. 10. 

We agree with the judge that Consol's reliance on section 30l(b)(l) of 

the Amendments Act is misplaced. The section is ambiguous in that one phrase 

refers to "standards and regulations" under the Coal Act while the section's 

title is "Existing mandatory standards; ... "and elsewhere it refers t:o 

"mandatory standards" or "mandatory health or safety standards." Section 

30l(c)(2) by its express terms, clearly governs "regulations," such as the 

regulation at issue in this case. The judge concluded that section 30l(b)(l), 

when read in its entirety, governs mandatory standards, not the regulation at 

issue. 12 FMSHRC at 169. The legislative history does not clarify section 

301(b)(l). The Senate Conference Report for the Mine Act, however, discusses 

the "carry over" of existing safety and health standards separately from its 

discussion of the continuation of existing regulations, thereby providing 

Section 30l(b) of the Amendments Act provides in part: 

(b) Existing mandatory standards; review by advisory 

committee; recommendations 

(1) The mandatory standards relating to mines, 

issued by the Secretary of the Interior under the 

Federal Metal and Nonmetallic Mine Safety Act [ 30 U.S. C. 

721 et seq. J and standards and regulations under the 

Federal Coal Mine Health and Safety Act of 1969 [30 

U.S.C. 801 et seq. which are in effect on November 9, 

1977, shall remain in effect as mandatory health or 

safety standards applicable to metal and nonmetallic 

mines and to coal mines respectively under the Federal 

Mine Safety and Health Act of 1977 [30 U.S.C. 801 et 

seq.] until such time as the Secretary of Labor shall 

issue new or revised mandatory health or safety 

standards applicable to metal and nonmetallic mines and 

new or revised mandatory health or safety standards 

ap?licable to coal mines. 

962 
support for the judge's construction. S. Rep. No. 461, 95th Cong. 1st Sess. 

64-65 (1977), Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine 

Safety and Healtli Act of 1977, 1342-43 (1977) ("Legis. Hist."); also Sec. 

Br. 7, n. 5. We conclude that the more logical interpretation of section 

30l(b)(l) is to limit its application to mandatory standards. 

The language of section 30l(b)(l), moreover, does not support Consol's 

position that the Secretary of the Interior was required to maintain the 

status quo with respect to regulation during the period between enactment of 

the Mine Act and its effective date. Even assuming that section 30l(b)(l) 

applies to regulations, it simply provides that standards and regulations in 

effect on November 9, 1977, were to remain in effect until modified by the 

Secretary of Labor. It does not reference standards and regulations that were 

not yet in effect on that date or that were modified by the Secretary of the 

Interior after that date. 

Finally, we agree with the Secretary's argument that Consol's 

interpretation of the transfer provisions leads to illogical results that are 

at odds with the statute's underlyi~g purposes. See, 2A Sutherland Statutory 

Construction, § 45.12, at 61 (Singer 5th ed. 1992 rev.). Consol's 

interpretation would create a four-month gap during which no agency had the 

authority to issue standards or regulations. Given its concern with the 

safety of the nation's miners, it seems highly unlikely that Congress intended 

to prohibit regulatory action during that period. Thus, we affirm the judge's 

conclusion that the regulations at Part 50 are valid and enforceable. 

B. Whether Civil Penalties may be Assessed for Violations of 30 

C.F.R. § 50.30-l(g)(3). 

Consol argues that even if Part 50 is deemed enforceable, the Secretary 

is without authority to propose civil penalties for violations of Part 50 

regulations because they are not mandatory health or safety standards 

promulgated in accordance with the procedural requirements of section 101 of 

the Coal Act or the Mine Act. 5 Consol contends that section llO(a) of the 

Mine Act authorizes the assessment of civil penalties only for violations of 

mandatory health or safety standards and violations of the Mine Act. Consol 

asserts that Congress, when considering the legislation that became the Mine 

Act, expressly rejected the civil penalty provisions contained in the Senate 

5 It is undisputed that the Part 50 regulations are not mandatory 

safety or health standards. They were promulgated under section 508 of the Coal 

Act, 30 U.S. C. § 957, while mandatory standards would have been promulgated under 

section 101 of the Coal Act. Mandatory health and safety standards consist of 

the interim standards established by titles II and III of the Coal Act and 

standards promulgated pursuant to section 101 of the Coal Act and section 101 of 

the Mine Act. The interim standards were carried over to titles II and III of 

the Mine Act. section 3(1) of the Coal Act, 30 U.S.C. § 802(1) 

(definition of mandatory health or safety standard carried over without change 

in the Mine Act). See also, UM.WA v. Dole, 870 F.2d 662, 668 (D.C. Cir. 1989). 

963 
and House bills as introduced. Those bills authorized the assessment of a 

civil for a violation of the Act, safety and health standards or "any 

rule, order or regulation promulgated pursuant to this Act." Consol Br. 19, 

quoting S. 717 and H.R. 4287, as introduced. 

The Secretary contends that if the Mine Act, including sections 104(a), 

lOS(a) and llO(a), is read as a whole, civil penalties must be assessed for 

violations of regulations as well as safety and health standards. She 

contends that this interpretation is particularly apt in cases such as this 

where the regulation in issue, Part 50, implements a specific provision of the 

Mine Act, section 103(d). That section provides that operators shall keep 

records of "man-hours worked" and report such information "at a frequency 

determined by the Secretary, but at least annually." 30 U.S.C. § 813(d). 

Section llO(a), if read in isolation, appears to authorize civil 

penalties only for violations of the Act and of mandatory safety and health 

standards. It is significant, however, that section 104(a) of the Mine Act 

authorizes MSHA inspectors to issue a citation to an operator not only for a 

violation of the Act, but also for-~ violation of a health or safety standard, 

rule, order, or regulation promulgated pursuant to the Act. 30 U.S.C. 

§ 814(a). Section 105(a), 30 U.S.C. § 815(a), requires the Secretary to 

notify the operator of the proposed civil penalty to be assessed for the 

violation cited. 

The legislative history of the Mine Act does not corroborate Consol's 

position. The Senate bill (S. 717), as introduced, provided for the 

assessment of a civil penalty for a "violation of a provision of this Act or a 

safety or health standard prescribed by or under this Act, or any rule, order, 

or regulation promulgated pursuant to this Act .... " Legis. Hist. at 157. The 

original House bill (H.R. 4287) contained identical language. Legis. Hist. at 

235. 

When the House bill was reported by the Committee on Education and 

Labor, the language from section 109(a) of the Coal Act was substituted for 

the language quoted above but the Senate bill kept its original language. The 

bills were then passed by their respective houses of Congress with their civil 

penalty language unchanged. Thus, the Senate bill contained language 

specifically referencing "regulations," while the House bill did not. 

The Conference Committee subsequently adopted the House bill for other 

reasons. The Conference Report states: 

The Senate bill and the House amendment provided 

for a civil penalty of not more than $10,000 for each 

violation of the Act or a standard promulgated 

thereunder. The House amendment provided that each 

occurrence of a violation of a standard constitute a 

s offense. The Senate bill did not so provide. 

The conference substitute conforms to the House 

amendment. 

964 
S. Rep. No. 461 at 57, Legis. Hist. at 1335. This Report indicates that the 

Conference Committee focused on whether each occurrence of a violation should 

be treated as a separate offense. Thus, it does not appear that Congress 

intentionally dropped the Senate's language as to regulatory violations, as 

claimed by Consol. 

In sum, we agree with the Secretary's interpretation of the Mine Act, 

which seeks to harmonize sections 104(a), 105(a) and llO(a). Each part of a 

statute should be construed in connection with the other parts "so as to 

produce a harmonious whole." Sutherland, § 46.05 at 103. Such an 

interpretation advances the goals of the Act and maintains the importance of 

civil penalties as a deterrence. Further, nothing in the Act or its 

legislative history indicates that Congress rejected civil penalties for 

regulatory violations. 

Finally, we agree that Part 50 implements the responsibilities of the 

Secretary set forth in section 103 of the Act. These regulations constitute 

implementation of section 103 pursuant to rulemaking authority under section 

508 of the Mine Act, 30 U.S.C. § 957. Accordingly, we affirm the judge's 

conclusion that a civil penalty may·b~ asS6ssed for a violation of section 

50.30 l(g)(3). 

c, Violation of the Regulation 

Consol argues that the judge's decision upholding the Secretary's 

interpretation of 30 C.F.R. § 50.30-l(g).(3) ignores the plain language of the 

regulation and fundamental rules of statutory construction. Consol notes that 

"the regulation clearly differentiates between on-duty (on mine property) time 

and off-duty (off mine property) time," and that off-duty time is to be 

excluded from the calculation of the number of employee hours worked. Consol 

Br. 26. It asserts that the examples of off-duty work listed in the 

regulation ("vacation, holiday, sick leave and all other off-duty time") occur 

off mine property. From this it reasons that off-duty time equates with time 

spent off mine property and that on-duty time equates with time spent on mine 

property. Consol maintains that the judge's interpretation of the term "hours 

worked" to equate with hours paid while on mine property has no support in the 

language of the regulation. It contends that the time spent by miners, before 

and after shift, performing miscellaneous tasks, such as picking up and 

returning equipment and supplies, is to be included in hours worked under the 

regulation, even though employees are not compensated for such time, because 

they are exposed to the hazards of mining during that time. It points out 

that MSHA considers on-duty, remunerated time to include time when no labor is 

being performed, such as meal breaks, because employees are "on duty" at the 

work site. Consol argues that it is inconsistent to exclude time when work is 

being performed while including paid work breaks. 

Consol also points to the fact that under section 50.1, incident rates 

are to be calculated using the "hours of employee exposure" rather than the 

hours of remunerated work. The reporting of hours worked requires the 

reporting of those hours "that are consistent with the possible occurrence of 

reportable incidents used to calculate the intended accurate incidence rate." 

Consol Br. 28. Consol maintains that it cannot be penalized for logically 

965 
interpre Part 50 in a manner that is consistent with the express terms of 

section 50.30 l(g)(3). 

Consol also argues that, because its payroll records do not accurately 

reflect time worked, it is authorized under the regulation to estimate the 

total number of hours worked. The parties stipulated that Consol's estimate 

as reported to MSHA "reflect the actual time spent by hourly employees [at its 

mines]." . 46. Consol contends that it was justified in reporting these 

estimated hours since actual hours were not available from its "payroll or 

other time records." 

We disagree with Consol's view that the language of the regulation is 

plain and we conclude that the Secretary's interpretation is reasonable. 

Section 50.30 (n. 1 requires mine operators to complete MSHA Form 

7000-2 in accordance with the instructions found in section 50.30 1, and to 

submit the completed form to MSHA. Section 50.30 l(g)(3) requires operators 

to show the 11 total hours worked by all employees during the quarter covered. 11 

n[H]ours worked" is not defined here or in section 50.2. The regulation 

further instructs operators to 11 [i]nclude.all time where the employee was 

actually on duty .... " The term "o;:·duty" is likewise not defined. The 

regulation provides that "hours reported should be obtained from payroll or 

other time records" but indicates that these figures may require modification 

to exclude "vacation, holiday, sick leave, and all other off-duty time, even 

though for." Overtime hours are to be reported as straight time rather 

than as a multiple. Thus, although the language of the regulation is not 

, it would appear that an operator is required to use its payroll or 

other time records to calculate gross employee hours worked; to subtract any 

time included in this calculation that represents time not worked, such as 

sick leave, and any multiple hours used to calculate overtime pay; and to 

report the resulting figures to MSHA. This reported figure would include all 

time reflected in the payroll records "where the employee was actually on 

Payroll or other time records for hourly employees typically represent 

all hours worked, and the regulation instructs operators to use such records 

as a starting point for the calculation required. The regulation does not 

instruct operators to add to those figures any unpaid hours worked that are 

not included in the payroll or other time records. The only modifications 

authorized are for the purpose of deleting hours paid and not worked rather 

than for adding hours worked and not paid. We discern no justification 

for reading into this regulation the right of an operator to include all time 

that miners are on mine property. 

The provision of the regulation that provides an exception from the 

use of payroll or other time records states that "[i]f actual hours are not 

available, they may be estimated on the basis of scheduled hours." 30 C.F.R. 

§ 50.30 l(g)(3). MSHA has consistently interpreted this sentence to authorize 

mine operators to submit estimated hours as hours worked only if payroll or 

966 
other time records do not reflect actual hours worked. 6 Stip. 39; Sec. Br. 

17. This exception cannot be reasonably read to allow an operator to augment 

the hours worked as reflected in the payroll records with additional unpaid 

hours, during which employees are on mine property. 

MSHA's interpretation of the Part 50 regulations was further clarified 

in informational guidelines. Although these guidelines are not binding on 

MSHA or the Commission, they do provide "an accurate guide to current MSHA 

policies and practices." Coal Employment Project v. Dole, 889 F.2d 1127, 1130 

n. 5 (D.C. Cir. 1989). The guideline in effect between March 1978 and 

December 1986 paraphrased the regulation _and stressed that hours paid but not 

worked were not to be reported. Gov. Exh. 6, p. 16. When the guideline was 

revised in December 1986, it included a new sentence indicating that operators 

are "not [to] include time spent on mine property outside of regularly 

scheduled shifts, i.e., bathhouse, parking lot, etc." Gov. Exh. l, p. 15; 

Stip. 41. We agree with the judge that this added language did not signal a 

change in MSHA's interpretation of the regulation. The added language made it 

explicit that operators are to submit figures for employee hours worked based 

upon their payroll records rather than on information or estimates that 

reflect the time employees are present at the mine. 

Consol focuses on the term "hours worked" and contends that, because its 

employees "work" before and after each shift, the time spent performing such 

"work" should fall within the concept of "hours worked." Consol asserts that 

it is inconsistent for the Secretary to exclude such unremunerated time worked 

while including time that miners are paid while not working, such as paid meal 

breaks. We do not dispute the logic behind Consol's argument that miners 

perform "work" before and after their regular shifts and agree that this time 

could or even should have been incorporated by the Secretary into the concept 

of "hours worked." The Secretary, however, chose not to include these unpaid 

hours in the description of "hours worked" in the regulation or guidelines. 

Consol also argues that' the incident rates calculated by the Secretary 

under the Mine Act should be comparable to incident rates calculated by the 

Secretary for employers covered by the Occupational Safety and Health Act of 

1970, 29 U.S.C. § 651 et seq. ("OSHAct"). It asserts that MSHA's Part 50 

regulations should be interpreted in pari materia with the Secretary's 

requirements under the OSHAct, which do not require that reportable time 

equate with compensated time. While we agree with Consol that, as a matter of 

policy, the incident rates calculated by the Secretary for the mining industry 

should be comparable with the incident rates of other industries, the Mine Act 

does not explicitly require that the method of calculating incident rates 

under the Mine Act be consistent with that used under the OSHAct. As a 

consequence, Consol's assertion that, as a matter of law, the Secretary's Part 

50 regulations must be interpreted consistently with the reporting 

requirements under the OSHAct is rejected. 

6 In contrast, MSHA allows the reporting of estimated hours of work for 

salaried employees totalling 9 1/2 hours per day at Consol's mines. Stips. 32 

& 33. 

967 
Finally, Consol argues that "a regulation cannot be applied in a manner 

that fails to inform a reasonably prudent person of the conduct required." 

Consol Br. 36-37, quoting Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 

(November 1989). Consol maintains that the Secretary's guidelines interPart 50 are internally inconsistent and have changed significantly 

since the regulation was adopted. In fact, Consol had notice of the 

Secretary's December 1986 interpretation of the regulation to the effect that 

mine operators should "not include time spent on mine property outside of 

scheduled shifts, i.e. , bathhouse, parking lot, etc." Gov. Exh. 1, 

p. 15; Stip. 41. The revised guideline containing this specific language was 

issued two and one half years before the contested citations were issued. We 

conclude that Consol was fair notice of the requirements of the 

regulation. 

Based on the above, we affirm the judge's finding that Consol violated 

section 50.30-l(g)(3). Notwithstanding the preceding determinations, however, 

we also agree with the judge that the incident rates calculated by MSHA are 

flawed because the injury and accident information that mine operators are 

to submit does not correlate with the data that mine operators must 

for employee hours worked. 7 '>>See 12 FMSHRC 1144 46. As stated above, 

the injury and accident information gathered by MSHA from section 50.20 and 

the employee hours worked information gathered by MSHA from section 50.30 are 

used by MSHA to calculate rates of injury occurrence pursuant to section 50.1. 

Under section 50.1 incident rates are to be calculated by dividing the number 

of accidents and injuries by the number of employee exposure hours. The 

Secretary, however, calculates incident rates by dividing the number of 

accidents and injuries during total exposure hours by the number of employee 

The mismatch of numerator and denominator yields distorted 

incident rates. The argues that, since all mine operators are 

required to report only actual paid hours worked, any skewing, if it occurs, 

would be similar across Sec. Br. 21. This assumption, however, is 

not correct. Employees at some mines may perform pre- and post- shift tasks 

for varying periods of time before and after the start of their paid shifts, 

and employees at other mines may work longer shifts and perform such tasks 

their paid shifts. The reported incident rates of these operators may 

not be comparable. 

Another source of lack of comparability in reported incident rates 

across operators arises from inconsistent treatment of salaried employees. 

MSHA admits that it allows Consol to include an additional 90 minutes of 

exposure time for salaried employees, but has not disseminated its acceptance 

of this allowance to other operators similarly situated. Oral Arg. Tr. 29-30. 

This policy may serious skew the data since counsel for Consol indicated 

that at large mines as much as 30% of the work force may be categorized as 

salaried employees. Oral Tr. 44-45. 

7 The citations charged Consol with nonserious, non-S&S violations. 

In upholding the citations, the judge concluded that the violations were 

"nonserious and technical in nature" because, as applied by MSHA, the incident 

rate formula produces flawed data. 12 FMSHRC at 1146. The Secretary did not 

this finding. 

968 
Nevertheless, because section 50.30-1( (3) requires mine operators to 

report to MSHA the number of employee hours worked as recorded in the 

operator's payroll or other time records, we conclude, as did Judge Merlin, 

that Consol violated the regulation. Prior to the Commission's decision in 

Freeman United Coal Minin~ Co., 6 FMSHRC 1577 (July 1984), Consol reported as 

hours worked the number of paid hours that miners worked as reflected in its 

payroll records. Stip. 42. Consol was not free to reinterpret the reporting 

regulation merely because it believed that the incident rates calculated by 

MSHA were flawed, because of the Commission's decision in Freeman or because 

of its belief that MSHA's use of the data is misguided. As noted by the 

Secretary, Consol's method is also flawed in that it dilutes Consol's incident 

rate as compared to other operators. Sec. Br. 19-21. If each operator could 

report to MSHA whatever data it believed would lead to the most accurate 

incident rate at its own mines, operator reports would not be comparable and 

the incident rates calculated by the Secretary would be inaccurate. Finally, 

it is not clear from the record in this case whether the flaw caused by MSHA's 

use of mismatched data resulted in significantly skewed incident rates for 

Consol because few injuries at Consol's mines occurred before or after the 

miners' regular shifts. Sec. Br. 20-21 n. 13. 

We conclude that any flaws in MSHA's calculations of incident rates do 

not excuse Consol's violation of the regulation. Incident rates provide a 

general picture of the safety record of a mine operator. The assertion that 

MSHA's method of calculating incident rates is less than perfect or that there 

may be better methods does not excuse mine operators from complying with the 

data submission requirements of Part 50. The Commission's task is not to 

determine the best method of calculating incident rates, but to determine 

whether the Secretary's interpretation of the reporting regulation is 

reasonable and whether the operator was given fair notice of its requirements. 

See e.g., K Mart Corp. v. Cartier. Inc., 486 U.S. 281, 291-92 (1988); Lanham 

Coal Co., 13 FMSHRC 1341, 1343-44 (September 1991). 8 

D. Whether Consol was highly negligent 

We conclude that substantial evidence supports the judge's finding that 

Consol's "negligence was high." 12 FMSHRC at 1146. The express language of 

section 50.30-l(g)(3) is ambiguous and, in general, the reporting requirements 

of the regulation should be harmonized with the other sections in Part 50 to 

effectuate the Mine Act's goal of promoting the safety and health of miners. 

Cf. Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414 (10th Cir. 

8 At the time of oral argument, the Secretary had issued an advance 

notice of proposed rulemaking to amend her Part 50 regulations. 53 Fed. Reg. 

45,878 (November 14, 1988). Consol moved the Commission, on May 8, 1992, to take 

judicial notice of the Secretary's announcement that she had withdrawn Part 50 

from her regulatory agenda. 57 Fed. Reg. 16, 983 (April 27, 1992). The 

Secretary has not filed an opposition to this motion. We hereby grant Consol's 

motion. See Fed. R. App. P. 28(j). We find the Secretary's action in removing 

Part 50 from her regulatory agenda disturbing in light of our conclusions that 

injury incident rates are distorted and subject to inconsistencies as between 

operators. 

9 69 
1984)(citation omitted). 

Nevertheless, as the judge concluded, "after the Freeman decision the 

operator intentionally changed its reporting of hours worked under § 50.30 

l(g)(3)." 12 FMSHRC at 1146. As the judge explained: 

Whatever difficulties may be presented by the 

Secretary's interpretation of the Act and regulations, 

no operator is free to take the law into its own hands 

by deciding for itself what the law means and how it 

can best be applied. 

We conclude that the judge's decision is supported by substantial 

evidence. Accordingly, we affirm his finding that Consol's negligence was 

high. 

970 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's finding that Consol 

violated 30 C.F.R. § 50.30-l(g)(3) in each instance cited, and also affirm the 

judge's finding of high negligence. 

L. Clair Nelson, Commissioner 

Commissioner Holen, concurring: 

I fully agree with this decision. I add my concern that the goal of 

improving mine safety can be unnecessarily compromised by the use of 

inaccurate data as a basis for allocating inspection resources, calculating 

national mine safety statistics, and making regulatory policy. 

Arlene Holen, Commissioner 

971 
Distribution 

Henry Chajet, Esq. 

Thad S. Huff~an, 

Jackson & Kelly 

1701 Pennsylvania Ave., N.W. 

Suite 650 

Washington, D.C. 20006 

for Consolidation Coal 

William E. Hynan, Esq. 

Peter A. Gabauer, Esq. 

National Coal Association 

1130 17th St., N.W. 

Washington, D.C. 20036 

David M. McConnell, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

972 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF lABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 16, 1992 

Docket No. WEVA 91-73 

UNITED STATES STEEL MINING COMPANY 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

At issue in this civil penalty proceeding arising under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"), 

is whether United States Steel Mining Company, Inc. ("U.S. Steel") violated 30 

C.F.R. § 77.200, because its thermal coal dryer was losing fluidizing air 

current. 1 Commission Administrative Law Judge George Koutras found that U.S. 

Steel did not violate section 77.200, because the Secretary of Labor failed to 

establish that there was a hazard presented to miners. 13 FMSHRC 1465 

(September 199l)(ALl). The Commission the Secretary's Petition for 

Discretionary Review. For the reasons set forth below, we affirm the judge's 

decision. 

I. 

Factual Background and Procedural History 

U.S. Steel operates the Pinnacle Preparation Plant located in Pineville, 

West Virginia. The plant's thermal coal dryer, a structure six stories high, 

dries fine coal by fluidization. 2 Fluidizing air current is created by two 

30 C.F.R. § 77.200 requires: 

All mine structures, enclosures, or other facilities 

(including custom coal preparation) shall be maintained in 

good repair to prevent accidents and injuries to employees. 

2 "Fluidization" is defined in the Department of Interior's 

=_=-:_~=~--=..:====-='-'--~""-==-='-==--=-:::~"""' ( "DMMR T" ) as " [ a] roast p roe es s in which 

finely divided solid materials are kept in suspension by a rising current of air 

(or other gas). This produces a fluidized bed which provides an ideal condition 

973 
fans. One fan, located at the top of the , pulls up the air current. 

This fan is 8 to 10 feet in diameter and is driven at 1200 revolutions per 

minute (" ) by an 800 to 1000 horsepower motor. The second fan, at the 

bottom of the dryer, pushes up the air current. This fan is 3.5 feet in 

diameter and is driven at 1700 rpm by a 300 to 400 horsepower motor. The air 

current allows fine coal to float across the drying bed where it is super 

heated to remove its moisture. It is carried upward as it dries and then 

settles on a conveyor belt. 

On September 10, 1990, Mine Safety and Health Administration ("MSHA") 

Inspector Michael T. Dickerson conducted a regular inspection of the 

preparation plant. During his inspection of the thermal coal dryer at the 

feed end of the dryer bed, he ·saw hot coal embers and float coal dust and felt 

a current of fluidizing air coming through a fracture in the concrete floor, 

at about one-third of the thermal dryer's height. The length of the fracture 

was variously described as 3.5 feet and 8 to 10 feet and had been 

intentionally created at an earlier time in order to weld a seam on the dryer 

wall. Tr. 144, 171, 173. The 1nspector also observed a weld seam crack 3 to 

4 inches long in the metal lining of the bed. 

Dickerson issued a section 104(a) citation for violation of section 

77.200, alleging that the concrete floor at the feed end of the thermal dryer 

had deteriorated. The citation also alleged that there was leakage allowing 

live embers and small amounts of float coal dust to escape and allowing loss 

of small amounts of fluidiz air current. Dickerson designated the 

violation as significant and substantial. 

Dickerson indicated before the judge, however, that the deteriorated 

concrete floor was not out of under the cited standard. Tr. 150, 153, 

155, 160. Dickerson testified that the deteriorated floor played no part in 

the violation, since the purpose of the floor was not to enclose the 

fluidizing air from the bed. Tr. 153, 155, 160. Rather, in Dickerson's 

view, the violation was caused by the split in the metal lining of the dryer. 

Tr. 15 , 160. Dickerson testified that the violation pertained to the loss of 

the fluidized air current within the dryer, not to the hot embers and coal 

dust that floated out into the air since U.S. Steel's maintenance outside the 

would ensure that any combustible material would not accwnulate. Tr. 

145, 146-47, 156, 159, 162. In sum, Dickerson believed that, if left 

unabated, the loss of the fluidizing air current could cause the coal dust 

inside to settle, become hot and ignite. He believed that this would pose a 

hazard of fire or ion of the coal in suspension and expose the dryer 

attendant to serious injury. Tr. 137-38, 151, 156-57. 

In his decision, Judge Koutras found that, although the primary purpose 

of section 7.200 was to assure the physical and structural integrity of 

surface coal preparation structures, the language of the standard was broad 

enough to cover a and unrepaired dryer bed enclosure lining. 

13 FMSHRC at 1472. He also concluded that the dryer bed enclosure was not 

for gas-solid reaction because each solid particle is in constant motion and in 

contact with the moving gas stream on all sides." at 447. 

974 
maintained in good repair. 

Judge Koutras found, however, that in order to establish a violation of 

section 77.200, the disrepair or condition of the cited equipment must present 

a hazard to miners. 13 FMSHRC at 1473. Based on the evidence of the case, he 

could not, however, conclude that the Secretary established that the leaking 

dryer bed enclosure lining presented such a hazard. Id. He noted that 

Dickerson had conceded that the escaping coal dust and coal embers did not 

pose a hazardous condition outside the dryer. He further noted that, 

while Dickerson was primarily concerned with the loss of fluidizing air 

current inside the dryer, there was only a small amount of fluidizing air 

current coming through the cracked dryer lining and there was no evidence that 

air flow inside the dryer was restricted. Accordingly, he concluded that 

U.S. Steel did not violate the regulation. Id. 

II. 

Disposition of Issues 

On review, the Secretary argues that the judge erred in finding that 

U.S. Steel did not violate section 77.200. The Secretary first argues that, 

for a finding of violation, the judge required a showing of an actual hazard 

of a significant and substantial nature: 11 -- in essence the judge would 

require a finding of a 'significant and substantial' violation in order to 

make out a violation." PDR at 5. The Secretary also argues that the judge 

erred in not finding a hazard of a significant and substantial nature, based 

on the inspector's testimony. 

Contrary to the Secretary's assertions, the judge did not equate a 

violation of section 77.200 to a showing of a hazard of a significant and 

substantial nature. The judge required only "that the disrepair or condition 

of the cited equipment [present) a hazard to miners." 13 FMSHRC at 1473. The 

judge did not, by requiring a showing of a hazard, require a showing of a 

reasonable likelihood that the hazard contributed to would result in an injury 

or illness of a reasonably serious nature, the prerequisite to a significant 

and substantial violation under 3 FMSHRC 

822, 825 (April 1981) and Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). 

Accordingly, we reject the Secretary's argument that the judge essentially 

required a showing of an actual hazard of a significant and substantial nature 

as a prerequisite to a finding of violation of section 77.200. 

In addressing the Secretary's second argument, that the judge erred in 

not finding that the alleged hazard was significant and substantial based on 

the inspector's testimony, we find that the judge did not err. Substantial 

evidence supports the judge's finding that the weld seam crack in the dryer 

bed enclosure presented no hazard to miners. 13 FMSHRC at 1473. As the 

Commission has consistently recognized, the term "substantial evidence" means 

"such relevant evidence as a reasonable mind might accept as adequate to 

support [the judge's) conclusion." 

6 FMSHRC 1132, 1137 (May 1982) quoting 

U.S. 197, 229 (1938). 

975 
The j noted Inspector Dickerson's concession that there were no 

hazards presented outside the dryer. 13 FMSHRC at 1473. The Secretary on 

review acknowledges that it was the loss of fluidizing air current inside the 

dryer unit that posed the potential hazard, not the material leaking out of 

the dryer. See PDR at 6 n.4; S. Br. at 2 n.l, 10-12. The judge further found 

that the alleged hazard inside the dryer related to restricted air flow that 

could result from loss of fluidizing air current. 13 FMSHRC at 1473. 

However, the judge found that there was no evidence of restricted air flow. 

Id. 

Although U.S. Steel foreman David Walters testified that he observed a 

very small, gentle flow of air escaping through a 3 to 4 inch long hairline 

split in the metal lining, he stated that "it would take a large hole to short 

circuit [the effect of the] two fans." Tr. 167, 169, 170. Walters testified 

that a four-inch hairline crack would not short circuit the airflow and, in 

view of the volume of fluidizing air current produced by the two large fans, 

the effect of the split on the air current across the bed was insignificant. 

Tr. 169-70. walters testified that there was no hazard of an accident or 

injury to anyone. Tr. 172. 

Inspector Dickerson's testimony that the alleged hazard was significant 

and substantial in nature is not compelling. Dickerson, who was not qualified 

as an expert witness on thermal coal dryers and claimed no specialized 

experience or qualifications relating to them, stated that there was a 

reasonable likelihood that a fire or explosion would occur as a result of the 

loss of fluidizing air if it were unabated. See Tr. 133-35, 138. However, he 

did not explain how the small amount of fluidized air seepage involved in this 

instance would result in restricted air flow in the dryer and create a hazard, 

nor did he testify that the crack was likely to widen, creating greater 

seepage and resulting in restricted air flow. See Tr. 138, 151, 154, 159. 

Although Dickerson testified that dryer explosions were not an unusual 

occurrence, there was no evidence presented that such explosions occurred in 

connection with three to four inch seam leaks. Tr. 138. Dickerson 

conceded that the small amount of escap fluidizing air would pose a hazard 

only if it restricted air flow within the dryer. Tr. 159. As noted above, 

the judge found no evidence of restricted air flow. 13 FMSHRG at 1473. 

In short, the inspector's testimony did not prove that any hazard 

existed. Thus, we hold that the judge did not err in concluding that a 

violation was not established. 

976 
III. 

~onclusion 

Accordingly, the judge's decision is affirmed. 

Disbribution 

Billy M. Tennant 

600 Grant Street, Room 1580 

Pittsburgh, PA 15219-4776 

Jerald S. Feingold, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd 

Arlington, VA 22203 

Richard V. Backley, Commissioner v 

.. tJ~ d. Ar 1~&_ Joyce A. Doyle, Commis~~~ 

Arlene Holen, Commissioner 

L. Clair Nelson, Commissioner 

Administrative Law Judge George Koutras 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

977 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOUTHERN OHIO COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 25, 1992 

Docket No. WEVA 90-141 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

'DECISION 

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. (1988)("Mine Act" or "Act"). The 

issue is whether Commission Administrative Law Judge James A. Broderick erred 

in finding that Southern Ohio Coal Co. ("SOCCO") violated 30 C.F.R. 

§ 75.1725(c), a mandatory safety standard applicable to underground coal 

mines. The standard provides: "[r]epairs or maintenance shall not be 

performed on machinery until the power is off and the machinery is blocked 

against motion, except where machinery motion is necessary to make 

adjustments." Following an evidentiary hearing, Judge Broderick found that 

SOCCO had violated the standard because all affected miners working around a 

conveyor belt had not been informed that the belt, which previously had been 

locked-out, was going to be started. 12 FMSHRC 2503 (November 1990)(ALJ). 

For the reasons set forth below, we reverse the judge's decision. 

I. 

Factual and Procedural Background 

SOCCO operates the Martinka No. 1 Mine, an underground coal mine located 

in Marion County, West Virginia. On May 5, 1989, an eight miner crew was 

extending an underground conveyor belt. The "belt move" in this instance 

involved extending the tailpiece of the conveyor belt one block (100 feet) 

toward the coal face in the north main section of the mine. The process 

involved, in part, tying-off the existing belt, moving the tail piece forward, 

adding additional belt, adding belt rails, and adding rollers. Before work 

began, Foreman Bill Laird and miner Sam Guido locked-out and tagged the belt 

978 
at the main power source. The crew1 then added and iced the belt and 

installed some of the top structure of the belt. The crew had not finished 

installing the bottom structure. 

In order to more easily install the bottom rollers, approximately 30 

feet of slack needed to be removed from the belt. Laird and one of the 

miners, Mike Bowman, left the area of the tailpiece to go to the headgate, 

approximately 5000 feet away, in order to activate the take-up device, which 

is used to tighten or add tension to the belt. Another miner, John Giordano, 

travelled to an area 200 or 300 feet outby the tailpiece, to the Jabco, a 

switch controlling power to the belt. 

Laird pulled the take-up device to remove the slack. When Laird 

discovered that the take-up device would not remove enough slack to adequately 

tension the belt, he called Foreman John Gowers, who was located at the tail, 

told him that the belt was going to be started, and asked him to make sure 

that everything was clear. Gowers called him back and stated that everything 

was clear. Tr. II 18-19. 2 Gowers then told Dempsey McHenry to have Giordano 

turn on the Jabco. McHenry walked QUtby to.Giordano and relayed Gowers' 

instructions, and Giordano turned on the Jabco. Gowers assumed that the other 

miners had overheard his conversation with McHenry. Tr. I 32; G-Exh. 2, p. 6. 

However, according to their testimony, crew members Guido, DeRosa and Renick 

knew Laird was going to pull the take-up device, but they did not know that 

Laird was going to start the belt. 3 Renick depo. at 25 26; Tr. I 92, 97, 

127. 

Laird testified that before the belt was started, he "bumped" the belt 

at least twice. Tr. I 51 53; G-Exh. 2, p. 2. 4 On his way back from the 

Jabco to the feeder, McHenry observed that the belt was "jumping up and down," 

at a location where "come-alongs" were still attached to the belt. 5 The 

come-alongs were attached to the top of the belt at locations described as 

anywhere from 40 to 200 feet from the tailpiece. Tr. I 131; Giordano depo. at 

16; Renick depo. at 12; McHenry depo. at 16. McHenry then walked back to the 

1 The remainder of the crew consisted of Foreman John Gowers and miners Lou 

DeRosa, Dempsey McHenry, Frank Renick, Mike Bowman, and John Giordano. 

2 The transcript of the evidentiary hearing is set forth in two volumes. 

Reference to the first volume is depicted as "Tr. I," while reference to the 

second is "Tr. II." 

3 Laird testified, however, that before he went to the headgate, he told 

Guido that he would probably have to run the belt in order to take up the slack. 

Tr. II 9. 

4 Bumping .the belt involves jogging the belt, by turning it on and quickly 

turning it off. 

5 A "come-along" is a mechanical, hand-operated winch that latches and 

pulls wire rope and was used by the crew to hold up the belt so that belt 

structure and rollers could be installed. 

979 
Jabco and turned off the belt so that the come alongs could be removed. Tr. I 

130; McHenry depo. at 20, 26-27; 12 FMSHRC at 2504. After the power to the 

belt was turned off, Laird again locked out and the power box because 

he knew that the crew still had to install bottom structure. Tr. II 23-24, 

28. 

Guido testified at the hearing that he had been sitting on the belt, 

unhooking a come along that was three to five feet away from him. He further 

stated that the belt started as he was getting off, caus him to be thrown 

from the belt and injuring his knee. Tr. I 106, 108-10. 6 He testified that 

he did not see the belt bump or feel it move at all. Tr. I 93. He also 

stated that there was no lighting except for cap lamps and that no one saw his 

injury. 

On August 8, 1989, three months after this incident, James Young, an 

inspector with the Department of Labor's Mine Safety and Health Administration 

("MSHA"), went to the mine for an inspection and received a written request 

from union representatives to investigate the incident. Inspector Young 

interviewed Dewey Ice, as well as cYewmembers Laird, Gowers, DeRosa, McHenry, 

and Renick. Inspector Young did not interview Guido because he had not yet 

returned to work. 

Based upon his investigation, Inspector Young concluded that the belt 

had been started while still being worked on by miners who had not been 

informed that it was going to be started. Tr. I 17. Accordingly, he issued a 

section 104(a) citation alleging a significant and substantial ("S&S") 

violation of section 75.1725(c) stating: 

Based on information obtained during an accident 

investigation, the safe work procedure involving 

tagging and locking out machinery, when workers are 

exposed to moving parts, was not in place. 

Communication between the head drive and the tail 

piece was neglected to the point that, the drive was 

unlocked and the belt started without notifying the 

employees working on the belt at the tail that the 

belt fl was going to be started. Six to Eight 

employees were working in the area, four employees 

involved were not informed that the belt was to be 

started .... 

Citation No. 3118169. 

6 Crew member Lou DeRosa testified that Guido told him that he was leaning 

over to get his oves from the belt when it started, and this information had 

also been reported by Dewey Ice, SOCCO's accident prevention officer, on SOCC0 1 s 

accident report form after a conversation between Ice and DeRosa. Tr. I 142; Tr. 

II 30-31; G-Exh. 4. In addition, other witnesses testified that they had not 

seen the come-along next to Guido, but only saw come alongs approximately 40 to 

200 feet outby the tailpiece. Tr. I 136; Giordano depo. at 16; Renick depo. at 

10-12. 

980 
Inspector Young testified that he believed that SOCCO violated section 

75.1725(c) because: 

when you have people working at one area on this belt 

line and you have working down 5,000 feet away, 

[and that] is where the power is disconnected or 

tagged out or locked out or whatever, if you don't 

tell these people up here that you're going to start 

that belt, ... the part about being locked and tagged 

out means absolutely nothing. 

Tr. I 25. He stated that men working 5,000 feet away from the area of the 

"visible disconnect" would know that it is safe to work on equipment only if 

they were told so, and that he had no problem with running the belt to take 

out the slack as long as there was proper communication and the crew was in a 

safe position. Tr. I 59, 69. 

The citation was terminated by Inspector Young when SOCCO planned "a 

safety talk at their meeting [in which] were going to go over with the 

foremen about starting up procedures and this type of thing." Tr. I 59 60. 

In addition, the action to terminate is described on the citation form as, 

"[a]ll parties involved in the investigation, agreed upon the importance of 

proper communication between work sites, and the review of accidents at this 

mine site." Citation No. 3118169. 

Following an evidentiary hearing, the judge found that SOCCO had 

violated section 75.172~(c) and that the violation was S&S. In reaching his 

finding of violation, the judge first determined that the activities involved 

in extending a belt constitute "maintenance" within the meaning of section 

75.1725(c). 12 FMSHRC at 2505. The judge also stated: 

The evidence . . . is clear that neither Gui.do nor 

DeRosa were informed that foreman Laird was go to 

start the belt. Although motion of the belt is 

necessary to make adjustments, it obviously cannot 

safely be accomplished while the belt is worked 

on. All the affected miners must be informed if a 

belt which has been locked out is going to be started 

up. This was not done here. I conclude that a 

violation of 30 C.F.R. § 75.1725(c) has been 

established. 

12 FMSHRC at 2506. 

The j then found that ":mJ repairs or adjustments on a belt 

while the belt is moving is a serious violation, 11 and that the violation was 

properly designated as being S&S. . The judge assessed a civil penalty of 

$300 t SOCCO, rather than the $276 penalty proposed by the Secretary. 

12 FMSHRC at 2507. The Commission subsequently granted SOCCO's petition for 

discretionary review, in which SOCCO challenged the judge's finding of 

violation, and we heard oral argument. On review, SOCCO notes preliminarily 

that there must be repair or maintenance being performed for there to be a 

981 
violation; that, in any event, the standard has no notice requirement; and 

finally, if a notice requirement can be read into the standard, SOCCO's 

practice of "bumping" the belt satisfied the requirement. PDR at 2-3. 

II. 

Disposition of Issues 

Under section 75.1725(c), power to machinery must remain off until 

repairs and maintenance are completed, unless power is necessary to make an 

adjustment. Not all tasks are covered by the standard; it applies only where 

repairs or maintenance are being performed. Here, it is undisputed that the 

crew was engaged in a belt move at the time the belt was started, and that the 

belt move had not been completed. Tr. I 24, 98; Tr. II 24, 28. 

When determining whether SOCCO violated section 75.1725(c), the judge 

preliminarily considered whether "maintenance" was being performed while power 

was turned on to the belt. 7 The judge concluded that the work involved in 

extending the belt constituted maintenance within the meaning of the standard. 

12 FMSHRC at 2505. In his finding 'of fact IV, the judge described the 

progress made in the belt move process an"d the work still to be completed. 

12 FMSHRC at 2504. The judge found that "the action in extending the belt 

described in finding of fact IV constitutes maintenance on machinery as that 

term is used in [section] 75.1725(c)." 12 FMSHRC at 2505. The judge also 

found that extending the belt system involves "adding and adjusting activities 

which constitute maintenance." 12 FMSHRC at 2506. 

On review, the Secretary focuses on Guido's and DeRosa's activities when 

the belt started and states that, at the time that power to the belt was 

turned on, Guido was working on the belt and DeRosa was working in close 

proximity to the belt. S. Br. at 7. In response, SOCCO argues that there is 

no basis for an allegation that maintenance work was being performed while the 

t was in operation. Soc. . Br. at 7. 

agree with the j that the preliminary question is whether the 

belt move constitutes maintenance within the meaning of the standard. The 

j first noted that the term "maintenance" is defined in the dictionary as 

"[t]he act of continuing, carrying on, preserving or retaining something . 

[t]he work of ing something in proper condition." 12 FMSHRC at 2506 

(citation omitted). He then turned to a thesaurus which listed as synonyms 

for maintenance: "l. preservation, upkeep, annual upkeep, keeping up; 2. 

continuance, continuity, extension, prolongation; perpetuation, persistence, 

perseveration, repetition." Id. (citation omitted). From this, the judge 

concluded that the belt move constituted maintenance because extending it 

involved "adding and us activities." 

We find that the judge's literal application of the word "extension" is 

Neither contends that "repairs" were involved in this case and the 

evidence is undisputed that the crew was not engaged in making repairs when power 

was returned to the belt. Tr. I 62 64. The judge's decision involves only the 

issue of "maintenance." 

982 
out of context with the essence of the term maintenance. That essence, as the 

dictionary indicated, is that maintenance means "the labor of keeping 

something (as buildings or equipment) in a state of repair or efficiency: 

care, upkeep . [p]roper care, repair, and keeping in good order . 

[t]he upkeep, or preserving the condition of property to be operated." See 

Webster's Third New International Dictionary, Unabridged 1362 (1971); A 

Dictionary of Mining, Mineral. and Related Terms 675 (1968); and Black's Law 

Dictionary 859 (5th ed. 1979). 

The record reveals that the belt move was not designed to prevent the 

belt from lapsing from its existing condition or to keep the belt in good 

repair but, rather, to increase its usefulness to SOCCO. Inspector Young 

acknowledged that no work was performed on May 7, 1989, to keep the belt in 

the same condition that it was in the day before, that no "deteriorating 

condition" was being "upgrad[ed] ,"and that the belt would run without adding 

additional length to it. Tr. I 64. Inspector Young explained that the belt 

haulage system runs coal to the tailpiece and, as the face advances, the tail 

piece would be "farther than the haulage would allow," if the belt were not 

also advanced. 8 Tr. I 20. 

By adding new structure to extend the belt, SOCCO's miners were not 

engaged in the upkeep, preservation or maintenance of the existing belt. The 

evidence reveals that the belt move did not preserve the ability of the 

existing belt to convey material. The belt was not in need of upkeep. 

Instead, the belt move was an improvement of the belt system, extending it and 

shortening the distance between the belt's feeder and the working face. 

Accordingly, we reverse the judge's holding that the belt move engaged in by 

SOCCO constituted maintenance within the meaning of the standard. 

Even if we were to assume for the sake of argument that the belt move 

constituted maintenance, we would reverse the judge's decision because his 

holding regarding warning requirements for conveyor belt start-ups is 

erroneous as a matter of law. While we share the judge's concern that 

adequate warning be given before a conveyor belt is started in order to assure 

the safety of miners, we find no indication that section 75.1725(c) requires 

such warning. 

The Commission has consistently recognized that a safety standard must 

"give the person of ordinary intelligence a reasonable opportunity to know 

what is prohibited, so that he may act accordingly." Lanham Coal Co., Inc., 

13 FMSHRC 1341, 1343 (September 199l)(citations omitted). The Commission 

further explained that: 

When faced with a challenge that a safety 

standard failed to provide adequate notice of 

prohibited or required conduct, the Commission has 

applied an objective standard, i.e., the reasonably 

8 Typically, a shuttle car or ram car hauls coal from the working face to 

a "feeder," which is located at the tail of the belt. The coal is dumped onto 

the feeder, which feeds coal onto the tail of the conveyor belt. Tr. I 74. 

983 
prudent person test. The Commission recently 

swnmarized this test as "whether a reasonably prudent 

person familiar with the mining industry and the 

protective purposes of the standard would have 

recognized the specific prohibition or requirement of 

the standard." 

(citations omitted). 

Section 75.1725(c) does not give a reasonably prudent person notice that 

it prohibits the cited conduct. The plain language of section 75.1725(c) 

expressly sets forth requirements for blocking and turning off power to 

machinery, but does not set forth any requirements regarding conununication to 

miners before power is returned. Indeed, Inspector Young testified that the 

section "doesn't read that you must tell somebody [that the belt] is going to 

start." Tr. I 59. Instead, he explained that "the general law is to make 

sure that when people are working on [a belt], it's not going to start." Id. 

We conclude that a reasonably prudent person would not have known that the 

standard requires that miners be al·erted before power is returned to machinery 

in underground coal mines. 9 

It is significant that the Secretary has set forth in 30 C.F.R. Parts 

56, 57 and 77 specific requirements for providing adequate warning before 

conveyor belts are started for every type of mine except underground coal 

mines. 30 C.F.R. §§ 56.14201, 57.14201, 77.1607(bb). 10 While Parts 56, 

57 and 77 also provide blocking and locking out requirements for other types 

of mines similar or identical to those set forth in section 75.1725(c), the 

Secretary does not rely upon those standards to provide warnings applicable to 

9 Even if we were to assume that the standard requires such warning, a 

reasonab prudent person not have known that bumping the belt, apparently 

a common practice in underground coal mines, is not considered an adequate 

the Secretary. In fact, Inspector Young considered bumping a belt to 

be a warning, and stated that a belt is normally bumped to alert miners that it 

might be started. Tr. I 52. 

10 For example, 

warnings," provides: 

30 C.F.R. § 56 .14201, entitled "Conveyor start-up 

(a) When the entire length of a conveyor is 

visible from the starting switch, the conveyor 

operator shall visually check to make certain that all 

persons are in the clear before starting the conveyor. 

(b) When the entire length of the conveyor is 

not visible from the starting switch, a system which 

provides visible or audible warning shall be installed 

and operated to warn persons that the conveyor will be 

started. within 30 seconds after the warning is 

, the conveyor shall be started or a second 

warning shall be given. 

984 
starting conveyor belts. 30 C.F.R. §§ 56.14105, 57.14105, 77.404(c). The 

specific start-up warnings required by the standards for other of mines 

cannot be read into the language of section 75.1725(c), applicable to 

underground coal mines. To do so, as by the Sec , would not meet 

the test set forth in Lanham Coal Co., Inc., 13 FMSHRC at 1343, nor serve the 

interests of safety. As the court stated in Dravo Corp. v. OSHRC, 613 F.2d 

1227, 1232 (3rd Cir. 1980): 

To strain the plain and natural meaning of words 

for the purpose of alleviating a perceived 

hazard is to delay the day when the ... 

health regulations will be written in clear and 

concise language so that employers will be better able 

to understand and observe them. 

Id., quoting Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649-50 (5th Cir. 

1976). 

For the reasons discussed above, we conclude that the judge erred, in 

finding that the belt move in which SOCCO was engaged constituted maintenance 

within the meaning of section 75.1725(c), and in finding that the standard 

requires warning to affected miners before a previously locked-out belt is 

started. 

985 
III. 

Conclusion 

For the reasons set forth above, we reverse the judge's decision and 

vacate the citation. 

Distribution: 

David M. Cohen, Esq. 

American Electric Power 

Service Corporation 

P.O. Box 700 

Lancaster, OH 43130-0700 

Susan E. , Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Judge James H. Broderick 

Federal Mine Safety and Health 

Review Commission 

5203 Leesbur~ Pike 

Suite 1000 

Falls Church, VA 22041 

Richard V. Backley, C~ 

L. Clair Nelson, Commissioner 

986 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

IN RE: CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

June 29, 1992 

MASTER DOCKET NO. 91 1 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY: The Commission 

In this consolidated civil penalty and review proceeding arising under 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~· 

(1988)(Mine Act), the Commission, on November 13, 1991, granted petitions for 

interlocutory review filed by the Secretary of Labor ("Secretary") and 

operators represented by the law firm of Jackson & Kelly ("contestants"). The 

proceeding before the administrative law judge arises from a dispute between 

the Secretary and approximately 500 operators alleged to have altered 

respirable dust samples. On April 4, 1991, the Mine Safety and Health 

Administration (MSHA) issued approximately 4,700 citations charging such 

alterations. The operators contested the validity of the citations. The 

judge issued a prehearing order which, the Secretary to 

compile a list of documents in her possession that may be relevant, including 

an itemized list of documents the Secretary claims to be privi or 

otherwise nondiscoverable. In response thereto, the Secretary produced a 

Generic and Privileged Document List (Document List) which, in its amended 

form (September 25, 1991), contains a listing and description of 449 

docwnents, including 67 documents the Secretary claims are privileged. 

After receiving a series of discovery related motions from the parties, 

the j issued three orders, 1 which required the to produce eight 

docwnents notwithstanding her claims of privilege and upheld the Secretary's 

privilege claims as to 52 documents. The Secretary filed a motion seeking the 

judge's certification of this case for Commission interlocutory review. The 

judge denied the motion. On October 21, 1991, the Secretary filed the instant 

petition for interlocutory review insofar as she is ordered to produce six of 

the e documents. 

1 

FMSHRC 1573 

7, 1991, 13 

The pertinent orders of the judge are dated: September 13, 1991, 13 

(Order l); September 27, 1991, 13 FMSHRC 1611 (Order 2); and October 

FMSHRC 1750 (Order 3). 

987 
Thereafter, contestants filed a petition seeking interlocutory review of 

the same three orders, asserting that the judge erred in upholding the 

Secretary's privilege claims as to 52 documents. 

On November 13, 1991, the Commission granted both petitions for 

interlocutory review. 

I. 

The Secretary challenges the judge's rulings on two grounds: (1) that he 

erred in ecting the Secretary's claim of deliberative process privilege, 

and, (2) that he erred in failing to rule on her claim of work product 

privilege. 

A. Deliberative Process Privilege 

In Order 1, the judge set forth a brief general explanation and 

description of the deliberative process privilege. The judge then 

specifically evaluated documents cUfimed by the Secretary to be within the 

deliberative process privilege, including each of the five documents presently 

claimed to be privileged (Nos. 3, 365, 366, 367, and 401). The judge 

determined that each of the five documents was privileged as part of the 

deliberative process of the agency. 

In Order 2, the judge ordered the Secretary to disclose a number of 

privileged documents including the five in issue. In reaching his conclusion, 

the judge stated: 

Documents for which claims of 'executive privilege' or 

attorney work product privilege are upheld may 

nevertheless be ordered produced if necessary to the 

opposite party's case. In such a case, I must 

consider whether 'need for access to the docwnents, or 

any part of the documents, for purposes of this 

litigation must be overridden by some higher 

requirement of confidentiality.' (citations omitted.) 

Order 2 at 4. 

The judge also cited the Commission's decision in the case of Secretary 

of Labor/Logan v. Bright Coal Company, Inc., 6 FMSHRC 2520 (1984), noting that 

in considering whether documents protected by the "informer's privilege" 

should be ordered disclosed, the Commission placed the burden on the party 

disclosure, requiring a showing that the information sought be 

essential to a fair determination of the case; that consideration should be 

to whether the Secretary is in sole control of the material sought, and 

whether the party seeking disclosure has other avenues available to it to 

obtain the material. 

In applying the foregoing, the judge concluded as to each of the five 

documents that "the material sought is, for the most part, in the sole 

988 
possession of the Secretary, and the operators do not have other means of 

obtaining it or its equivalent." Id. at 4, 5. 

The judge also set out four guidelines by which he would determine 

whether "to order disclosure of privileged documents." Id. at 5. Only 

guideline three is pertinent here: 

Other documents for which the claim of executive 

privilege was upheld will be ordered disclosed to the 

extent that they are factual and deal with matters 

which are completed rather than those still pending. 

The judge then considered each document separately, applying the 

aforementioned guideline and concluded as to Document 3 (and others not in 

issue): 

These docwnents were held privileged as part of the 

deliberative process. However, they appear to be 

factual in nature although in draft form. They are 

exclusively in the Secretary's control, and are 

clearly relevant and important, indeed are close to 

the core issue of this case. Since the final report 

has been prepared, these documents relate to a 

completed matter. I hold that their disclosure is 

essential to a fair determination of this case and 

this overrides the Secretary's interest in 

confidentiality. 

These docwnents do contain deliberations and opinions, 

but they precede the Report on sample filter 

abnormalities (Document No. 2), and therefore are 

related to a completed rather than a pending matter. 

Id. 

Document 401 

This is a draft of study PHTC prepared prior to the 

report identified as Document No. 1. For the reasons 

given in my discussion of Documents 365, 366 and 367, 

this document will be ordered disclosed. Id. 

Accordingly, the five documents in issue were ordered disclosed. The 

Secretary filed a motion seeking reconsideration of Order 2. The Secretary 

also submitted the subject documents for in camera inspection. 

The judge granted the motion for reconsideration, reviewed the documents 

in camera and issued Order 3, wherein he again ordered the disclosure of the 

five documents in issue. 

The Secretary disputes the judge's determination to compel disclosure on 

989 
two grounds. 

1. that the judge misapplied the law when he ordered disclosure of 

all docwnents that relate to a completed matter, erroneously assuming that the 

deliberative process privilege expires once the reports were completed. 

2. that the judge erred in not requiring contestants to make a 

specific factual showing demonstrating that disclosure of the documents is 

essential to their defense. She asserts that in fact no such need exists 

because the operators have been provided with the final reports; they will 

have an opportunity to depose the Secretary's experts regarding the basis for 

their conclusions; and they will have the opportunity to cross-examine the 

experts at trial. 

Contestants assert that the documents played no role in the development 

of agency policy, rules or regulations and that therefore the deliberative 

process privilege does not apply to the documents in issue. Contestants also 

argue that even if privileged, once incorporated by reference into the 

relevant report, the communications'"1cise the privilege and are subject to 

discovery. 

Contestants urge that the judge was correct in balancing the needs of 

the parties and concluding that contestants' need overcame the Secretary's 

interests. The documents related to fundamental issues in the case -- how the 

government defines an abnormal white center (AWC) and how the government 

determines whether to cite an operator for an AWC. As such, they claim 

disclosure is essential to contestants' defense. Contestants also urge that 

the Secretary's argument that contestants' need has not been demonstrated 

fails to recognize that the judge has made an in camera inspection and "was 

able to see for himself the obvious materiality and relevance of these 

documents to the primary issues in the case and to determine that these 

documents were necessary to the development of contestants' defense." 

Response Br. at 20. 

1. Disposition of Issues 

Inasmuch as application of the deliberative process privilege is an 

issue of first impression for the Commission, a brief historical perspective 

may be noted. 

In setting forth the reasoning supporting his dissent in Nixon v. 

Sirica, 487 F.2d 700 (1973), Circuit Court of Appeals Judge Wilkey, inter 

alia, traced the origins of the privilege of confidentiality, or executive 

privilege, terms which refer to what is presently described as the 

government's deliberative process privilege: 

Tha oldest source of Executive Branch privilege, the 

common sense-common law privilege of confidentiality, 

existed long before the Constitution of 1789, and 

might be deemed an inherent power of any government 

... Historically, apart from and prior to the 

Constitution, the privilege against disclosure to the 

990 
public . . . arises from the undisputed privilege that 

not all public business can be transacted completely 

in the open, that public officials are entitled to the 

private advice of their subordinates and to confer 

among themselves privately and frankly, without fear 

of disclosure, otherwise the advice received and the 

exchange of views may not be as frank and honest as 

the public good requires. 

Id. at 763, 764. 

The Freedom of Information of Act, 5 U.S.C. § 552 (1970)("FOIA") 

represents the codification of "this age old, common sense-common law 

privilege." Id. at 765. The FOIA was enacted "to assure the American public 

that necessary access to Governmental information, and to prohibit the abuse 

of so-called 'Executive privilege"' Id. at 766. However, the FOIA contains 

categories of documents or information that are exempt from disclosure, which 

represents a Congressional determination that "if the material sought falls 

within one of these seven exemptions, the public interest in maintaining 

confidentiality outweighs the public.interest in the right to know 

Governmental affairs." Id. at 766. 

In construing the pertinent FOIA Exemption 52 , the Supreme Court 

stated: 

That Congress had the Government's executive privilege 

specifically in mind in adopting Exemption 5 is clear 

(citations omitted) . . . The cases uniformly rest the 

privilege on the policy of protecting the 'decision 

making process of government agencies' (citation 

omitted), and focus on documents 'reflecting advisory 

opinions, recommendations and deliberations comprising 

part of a process by which governmental decisions and 

policies are formulated.' (citations omitted). 

The Court went on to endorse the Senate Report (citation omitted) in 

concluding that "'frank discussion of legal or policy matters' in writing 

2 5 U.S.C. § 552 reads in part: 

"(a) Each agency shall make available to the public 

information as follows: " 

"(b) This section does not apply to matters that are 

"· 

"(5) inter-agency or intra-agency memorandums or letters 

which would not be available by law to a party other 

than an agency in litigation with the agency." 

991 
might be inhibited if the discussions were made public; and that the 

'decisions' and 'policies formulated' would be the poorer as a result." 

.:=.=.;:;;___==~Kaiser Aluminum & Chemical Corp. v. U.S., 157 F. Supp. 939, 946 

(1958). 

The breadth of the privilege is described by the court in Jordan v. U.S. 

=""-"'-''----"'-=-""-="'-==' 591 F.2d 753 (D.C. Cir. 1978): 

Id. at 772. 

This privilege protects the 'consultative functions' 

of goverrunent by maintaining the confidentiality of 

'advisory opinions, recommendations and deliberations 

comprising part of a process by which goverrunental 

decisions and policies are formulated' (citations 

omitted). The privilege attaches to inter and intraagency communications that are part of the 

deliberative process preceding the adoption and 

promulgation of an agency policy. 

The test for a proper claim to the privilege was described: 

at 774. 

the document must be 'pre-decisional.' The privilege 

protects only communications between subordinates and 

supervisors that are actually antecedent to the 

adoption of an agency policy .... The communication 

must be 'deliberative,' that is, it must actually be 

related to process by which policies are 

formulated. 

Contrasted against this construction, contestants argue that the 

documents in issue, drafts and conunents drafts of reports, are 

outside of the zone of the privilege, although at the same time concede 

that the reports, i.e., the two documents that evolved from the disputed 

documents, "may arguably have been the subject of deliberation by the agency." 

Response Brief at 16. 

It is difficult to embrace the proposed parsing of conduct advocated by 

contestants. The description of the documents offered by the Secretary, and 

the conclusions drawn by the judge after his in camera review of the 

documents, seem to confirm that the documents were deliberative and fall 

within the zone of the privilege. In concluding that contestants' need for 

the documents outweighs the Secretary's interest in keeping them confidential, 

the j reasoned that fairness to the contestants "demands that they be 

apprised not only of the final report, but also the deliberations, Government 

suggestions, changes and revisions that led to the final report." Order 3 

at 3. 

In National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114 

(9th Cir. 1988), the court was presented with a similar attempt by a plaintiff 

992 
to narrow the zone of communication that might qualify under Exemption 5 of 

the FOIA. Plaintiff argued that '"to qual under Exemption 5, the documents 

must not only be predecisional and deliberative, but [must] also contain nonbinding and advisory recommendations regarding law or policy: opinions or 

recommendations regarding facts or consequences of facts [are] not ... 

exempt.'" Id. at 1117. The court rejected this attempt to parse the 

privilege beyond the bright lines set by the Supreme Court. Citing E.P.A. 

Agency v. Mink, 410 U.S. 73 (1973), the court noted that the Supreme Court 

"has recognized a distinction only between 'materials reflecting deliberative 

or policy-making processes on the one hand, and purely factual, investigative 

matters on others.'" Id. at 1118. 

Thus, contestants' assertions that the disputed documents "are not part 

of the decision making process" but merely "part of the factual predicate for 

the decision to issue citations" should be rejected. Response Brief at 16. 

Accordingly, we reject contestants' argument that the disputed documents fall 

outside the zone of the privilege, and affirm the judge's conclusion that the 

documents are deliberative. 

a. Did the judge err in ruling that documents relating to 

completed matters falls outside the privilege? 

As previously described, in his second Order, the judge set out an 

additional guideline for determining the applicability of the deliberative 

process privilege to docwnents, based on their factual content and their 

dealing with completed rather than pending matters. Order 2 at 5. The judge 

supplied no authority for this guideline. 

We interpret the guideline to include two indeoendent bases on which 

disclosure would be ordered: (1) if the documents were factual; or (2) if the 

documents related to completed matters. The judge's ruling regarding 

docwnents 365, 366, 367 demonstrates this construction. In applying the 

guideline, the judge found the documents to contain "deliberations and 

opinions," not facts. However, they were ordered disclosed because they were 

related to a completed, rather than a pending matter. 

Factual docwnents are not at issue here. The case law is clear: purely 

factual material that does not expose an agency's decision making process does 

not come within the ambit of the privilege. Exxon v. Doe, 585 F. Supp. 690, 

698 (D.C. 1983). 

In an apparent attempt to support the judge's conclusion regarding 

completed matters, contestants cite Sears, 421 U.S. 132: 

[I]f an agency chooses expressly to adopt or 

incorporate by reference an intra-agency memorandum 

previously covered by Exemption 5 in what would 

otherwise be a final opinion, that memorandum may be 

withheld only on the ground that it falls within the 

coverage of some exemption other than Exemption 5. 

993 
at 161. 

Many courts, in applying the 

limitation narrowly: 

holding, have construed the court's 

1979). 

If the segment appeared in the final version, it is 

already on the public record and need not be 

disclosed. If the segment did not appear in the final 

version, its omission reveals an agency deliberative 

process.... But such disclosure of the internal 

workings of the agency is exactly what the law forbids 

(citations omitted). 

610 F.2d 70, 86 (2nd Cir. 

We conclude that the disputed guideline adopted and relied upon by the 

judge in Order 2 restricts the applicability of the deliberative process 

privilege more than was contemplat~_dby the Supreme Court. Accordingly, we 

conclude that the guideline is legally unsupported. The judge incorrectly 

concluded that documents dealing with completed matters automatically fall 

outside the privilege. Furthermore, there is no finding by the judge that the 

disputed documents have been expressly incorporated into the final report. 

b. 

Although in Order 2 the judge applied the wrong standard by relying upon 

the above referenced guideline in ruling that disclosure was required because 

the documents "deal with matters which are completed rather than those still 

pending," we conclude that this error was harmless. 

After the issuance of Order 2, the Secretary filed a motion for 

reconsideration, wherein, , she challenged the judge's guideline. 

The Secretary cited several cases supporting her contention that the privilege 

for predecisional agency deliberation continues to exist notwithstanding the 

fact that the documents relate to a matter that has been completed. Motion at 

3 -LL 

The judge granted the motion, and for the first time viewed the disputed 

documents He then issued Order 3. Although the judge did not 

refer to the Secretary's challenge to his guideline, he did not repeat the 

disputed guideline in his order, nor did he indicate any reliance upon it. In 

Order 3, the judge provided a precise, detailed basis for his determination. 

The judge concluded that the documents are within the scope of the 

pr but, he determined that, when balanced between the Secretary's need 

for confidentiali and the contestants' need for a fair defense, the 

's need must give way. In viewing the judge's reasoning on this 

issue, we conclude that he ultimately supported his order to disclose, not on 

the disputed guideline of Order 2 but, rather, by properly applying the 

balancing test adopted by the Commission in Bright, suprq. Specifically, in 

the case at bar, the judge found that: 

994 
Contestants have asserted that the documents in 

question directly relate to the central issue of this 

case, that they are exclusively in the possession of 

the Government, and that they consist of largely 

factual material. The Secretary has not denied the 

first two assertions. 

The litigation before the Commission involves the 

Government's charge that the mine operators tampered 

with respirable coal mine dust samples. This 

contention is based in part on the study and report 

prepared by west Virginia University. I conclude that 

fairness to the operators (and in the Commission's 

interest in fairly deciding these cases) demands that 

they be apprised not only of the final report, but 

also of the deliberations, Government suggestions, 

changes and revisions that led to the final report. I 

do not believe that the disclosure of the documents 

will compromise governm~?t policy deliberations. The 

operators' need for the documents outweighs the 

Secretary's interest in keeping them confidential. 

Order 3 at 1-3. 

The 

to make a 

defense. 

documents 

Secretary further argues that contestants should have been required 

specific showing demonstrating that disclosure is essential to their 

This point is effectively moot. The judge has viewed the disputed 

and has concluded that they are essential to contestants' defense. 

Accordingly, we conclude that the judge properly acted within his 

discretion, 3 and therefore we affirm his order requiring disclosure ~f the 

documents, notwithstanding the Secretary's assertion of its deliberative 

process privilege. 

B. 

The Secretary has sought interlocutory review of the judge's orders 

requiring production of six documents (Nos. 3, 365, 366, 367, 401 and 424) on 

grounds that the documents are protected from disclosure by the work product 

privilege. 4 

As previously noted, the judge issued three orders relevant to this 

proceeding. Order 1 contains no indication that the judge considered whether 

the documents in issue fell within the work product privilege. After setting 

forth relevant case law regarding each of the privileges asserted by the 

3 See Part II B, slip op. at 17, regarding generally the judge's 

discretion and the Commission's standard of review. 

In her brief to the Conunission the Secretary concedes that she 

inadvertently failed to assert the work product privilege as to Document No. 3. 

Brief at 4. 

995 
Secretary, the judge individually referenced and evaluated a large number of 

documents, including those in issue. As to each of the documents individually 

evaluated, the judge provided a brief description, and a ruling regarding the 

asserted privi (s). Notwithstanding the Secretary's assertion of the work 

product privilege as to the documents in issue, Order 1 contains no comment or 

ruling on the work product privilege. In that order, however, the judge 

concluded that each of the six documents was protected from disclosure by 

virtue of the deliberative process privilege. 

Order 2 contains the judge's reversal of his previous decision regarding 

the application of the deliberative process privilege as to the six documents 

in issue. However, once again he did not rule on the work product privilege. 

Order 3 contains the judge's reconsideration and affirmance of his 

ruling in Order 2 to compel disclosure of the documents previously determined 

to be protected by the deliberative process privilege. Again, there is no 

comment or ruling regarding the Secretary's asserted work product privilege. 

The Secretary argues that the judge's failure to rule on her claim of 

work product privilege is "an abuse of discretion and grounds for a Commission 

order in the nature of mandamus directing the ALJ to decide the Secretary's 

claims." Brief at 16. The Secretary also sets forth an extensive analysis of 

the merits of the claimed privilege. 

Contestants argue that the Secretary waived her right to assert the work 

product privilege. They argue that the Secretary failed to raise the work 

product privilege issue in her motion for reconsideration filed after the 

judge issued Order 2 compelling disclosure of the documents. 

Contestants argue that, when viewed as a whole, the judge's three orders 

effectively constitute a ruling on all the privileges but "if the judge 

decided that the other claimed privileges did not apply to protect the 

document from production, he simply did not note the application of that 

Response Brief at 29. 

Contestants further argue that the analysis made by the judge regarding 

the deliberative process privilege was the same analysis required for the work 

product privilege and that therefore his failure to expressly deal with the 

work product privilege was harmless. at 25. 

Finally, contestants also argue that the privilege does not apply to the 

documents in issue. 

1. Did the judge fail to rule on the Secretary's asserted claim of 

work product privilege? 

Not only did the judge fail to expressly rule on the work product 

privilege in his three orders, but contrary to the arguments of contestants, 

he did not effectively rule on that privilege. The judge's description of the 

documents and his consequential findings and conclusions deal with the 

deliberative process privilege. The judge's analysis lacks discussion 

specifically pertaining to the work product privilege and fails to apply the 

996 
guideline he set forth regarding the work product privi 

Documents for which the claim of work product 

privilege was upheld will be ordered disclosed to the 

extent they are factual and do not include mental 

impression, conclusions, opinions or legal theories. 

Order 2 at 5. The judge's orders did not discuss whether the documents 

contained legal theories or mental impressions elements that are clearly 

unique to the work product privilege. 

Contestants, however, would have the Commission conclude that, since the 

deliberative process privilege and the work product privilege contain 

overlapping elements, and since the analysis regarding contestants' need for 

the documents is essentially the same as that underlying consideration of the 

deliberative process privilege, we should view the judge's disposition 

regarding the deliberative process privilege as dispositive of the work 

product privilege. To do so however, would ignore the consideration that 

because the work product privilege exists for unique reasons, a different 

result might obtain. Consequently, 'ii separate analysis is required. 

In 

Commission recently ruled in a similar situation, wherein the Secretary urged 

multiple privileges for a particular document, and the judge failed to rule on 

all of the asserted privileges. The Commission was invited by the Secretary 

in that case, to draw an inference from the judge's failure to directly rule 

on a particular privilege. The Commission resisted then, as it does now: 

The Secretary maintains that the judge's failure to 

rule indicates that he determined that the subject 

statements should not be provided. We cannot make 

this assumption on the existing record, and remand 

this issue to the judge for his reconsideration in 

accordance with this decision and 

12 FMSHRC at 2557. 

Accordingly, we conclude that the judge did not expressly rule on the 

work product and that the judge's analysis of the deliberative 

process privilege cannot be construed to dispose of the work product privilege 

issue. 

2. Did the Secretary waive her right to the privilege? 

Contestants properly note that, after issuance of Order 2, wherein the 

judge ordered disclosure of the docwnents based upon his rejection of the 

Secretary's deliberative process privilege claim, the Secretary filed a motion 

for reconsideration that did not mention the judge's failure to address the 

asserted work product privilege. 

To evaluate the effect of this action by the Secretary, it is important 

to view the motion in context. The judge's initial response (Order 1) to the 

997 
Secretary's privilege assertions was positive. Although the Secre had 

advanced rnult le bases for nondisclosure, the judge, relying upon only one of 

those bases, granted the Secretary the ruling she sought. Thus the documents 

in issue were protected from disclosure by virtue of the judge's conclusion 

that the deliberative process privilege obtained. 

In Order 2, the judge reversed himself and concluded that, although the 

documents were privileged as deliberative, that privilege must fall away if 

the documents related to a completed matter. The judge did not rule on the 

work product privilege. The Secretary promptly responded with a motion for 

reconsideration. She challenged the basis of the judge's ruling regarding the 

deliberative process privilege and submitted the documents for an in camera 

inspection. The motion contained no mention of the work product privilege, 

nor is there any indication that the Secretary intended to abandon her earlier 

asserted claim of work product privilege. Indeed, it would have been 

premature to seek reconsideration of a ruling that had not yet been rendered. 

Accordingly, we find contestants' waiver argument to be unpersuasive. 

Also unpersuasive is contestants' attempt to draw support from the 

Commission's ruling in Wilmot Minin:g Co., 9 FMSHRC 684 (1987). In that civil 

penalty proceeding the judge directed the parties to explore settlement. 

Notwithstanding a proposed settlement agreeable to the parties, the judge 

conducted a hearing and offered no explanation for his apparent rejection of 

the settlement offer. Wilmot argued to the Commission that the settlement 

offer was improperly rejected. The Commission noted that: 

at 686. 

Wilmot apparently never objected to the judge's 

procedure in going forward with the hearing. It did 

not object at the hearing or argue this point to him 

in its post-hearing brief. Failure to object in a 

timely manner to an alleged procedural error 

ordinarily waives the right to complain of the error 

on appeal .... 

In the instant case, the Secretary has acted timely. She has been 

ordered to disclose documents for which she has claimed several privileges but 

the judge has ordered disclosure without ruling on one of the privileges 

asserted. The Secretary is under no obligation, under the Commission's rules, 

to re assert the claim of privilege before seeking interlocutory review of the 

j 's failure to rule on the claim. 

Accordingly, we conclude that the judge failed to rule on the 

Secretary's claim of work product privilege and we therefore remand this 

matter to the judge. 

998 
II. 

Contestants seek interlocutory review of the same three orders of the 

judge insofar as they uphold the Secretary's claim of privilege as to fiftytwo documents. 5 

Contestants rest their challenge on four grounds: (1) the Secretary's 

assertion of the privileges was improperly invoked and should not have been 

allowed; (2) the judge failed to require the Secretary to furnish sufficient 

factual material in support of her claimed privileges; (3) the judge failed to 

properly apply the claimed privileges to the documents in issue; (4) the 

judge's orders prevent meaningful review because they lack sufficient factual 

detail and analysis. 

A. Issues 

l. Was the Secretary's assertion of the privileges 

properly invoked? 

The Secretary's assertion of various privileges is contained in the 

Document List dated June 21, 1991. 6 The descriptions of the documents and 

the bases for the claimed privileges contained therein are further augmented 

in the Secretary's opposition to motion to compel discovery, 7 and in two 

affidavits dated August 30, 1991. 8 

The affidavits were filed in response to the judge's order to the 

Secretary (August 22, 1991) requiring that she reply to contestants' 

contention "that privileges must be formally asserted by the agency head after 

personal consideration of the documents for which privilege is claimed." 

Order 1 at 1-2. 

The first affidavit, from the Deputy Assistant Secretary for Mine Safety 

and Health of the Department of Labor, states that he is authorized to act on 

behalf of the agency in enforcement matters and that he has reviewed the 

documents for purposes of determining whether to assert a governmental 

privilege. The affiant then formally asserts four specific privileges 

(deliberative, investigative, attorney-client, and work product) to 

5 Although contestants reference fifty one documents, the Secretary 

states she assumes contestants inadvertently omitted one additional document, 

placing fifty-two documents in issue. Response Brief at 8, fn. 8. 

6 

furnished 

Exhibit 1. 

7 

8 

A copy of the 

to the Corrunission. 

Id. , Exhibit 2. 

Id., Exhibit 3. 

amended list dated September 25, 1991 has 

See Appendix to Secretary's Response Brief, 

999 

been 
specifically enumerated documents, setting forth the bases for each claim of 

privilege. The affiant also determines not to assert a privilege as to 

certain documents. 9 

The second affidavit is from a Supervisory Industrial Hygienist for MSHA 

authorized by the agency to serve "as an agent of more than one federal grand 

jury investigating allegations of the alteration of the weight of coal dust 

samples ... in accordance with Rule 6(e) of the Federal Rules of Criminal 

Procedure. " 10 

In ruling on the Secretary's assertion of the privileges in Order 1, the 

judge traced the relevant case law, including Commission precedent and 

concluded: 

the claim of executive privilege invoked here by a 

high level official of the Department of Labor who has 

direct responsibility for the matters involved after 

personal consideration of the documents, is sufficient 

formal claim of privilege when coupled with the 

Secretary's offer to submit the documents (except 

those for which grand jury immunity is claimed) for 

camera inspection. 

Order 1 at 5. 

Contestants argue that the invocation of the claim of privilege must be 

made by the Secretary of Labor or by a high ranking subordinate who has been 

formally delegated the task, and who has been furnished with guidelines on the 

use of the privilege. Because Secretary Lynn Martin has not herself invoked 

the privilege, nor formally delegated that task, contestants argue that the 

judge erred in accepting "a substitute procedure that does not meet the 

requirements of the law." Brief at 17. 

The Secretary argues that she properly invoked the claims of privilege 

and, in doing so through the use of two affidavits, exceeded the requirements 

under Commission precedent. 

Disposition 

The is of the j demonstrates that he properly recognized and 

understood the basis for the requirement that executive privilege be invoked 

by "a responsible government official" and not merely by trial counsel. Order 

1 at 5. He recognized that privilege claims should be narrowly construed and 

not lightly claimed. Case law seems to reflect a concern that the claim of 

government privi not be left merely to trial counsel, whose judgment might 

9 Id. at A-105. 

10 at A-106. 

1000 
be "affected by their interest in the outcome of the case. 011 In this case, 

a high ranking official of the agency formally invoked the privilege and, 

contrary to contestants' assertion, did not "merely restate Secretary's 

Counsel's privilege assertions." 12 Brief at 15. The affidavit of the Deputy 

Assistant Secretary contains a listing of docwnents that he determined were 

not privileged. As such, the underlying rationale for formal invocation of 

the privilege is essentially satisfied. 

The judge entertained contestants' argument and concluded that the 

quality of the invocation in this case was sufficient to afford contestants 

the protection required. In doing so, the judge also relied upon the 

Commission's holding in Bright, 6 FMSHRC 2520, which essentially recognized 

that, although authority exists requiring a formal claim of privilege by the 

department head in order to invoke the informant's privilege, most cases do 

not address whether the privilege was formally raised. The judge concluded 

that "to require that she (the Secretary) personally consider all the 

documents in these cases and invoke privileges such as are claimed in this 

administrative proceeding is ... neither practical nor necessary." Order 1 at 

5. We agree, and therefore affirm the judge's ruling. 

Administrative Law Judge's Dispositions as to Contestants' Issues 2, 3, and 4 

After receiving and reviewing the Secretary's document list and the two 

affidavits described above, the judge, in Order 1, referenced appropriate 

procedural law and case law regarding discovery and privilege in general, and 

then set forth the pertiuent case law and the principles derived therefrom 

regarding each of the specific privileges claimed by the Secretary. The judge 

then ruled on the asserted claims of privilege, referring to each document 

separately. As a result 50 documents were protected from disclosure, i.e., 

privileged, four documents were ordered disclosed, and 14 documents were 

ordered to be produced for an in camera inspection. 13 

In Order 2, the judge completed his in camera inspection of the 14 

documents ordered to be submitted to him and also inspected in camera, two 

additional docwnents submitted by the Secretary with her motion to reconsider 

the order to disclose. Additionally, the judge reconsidered his previous 

ruling granting claimed privileges with respect to 11 documents. To those 

documents the judge applied a series of guidelines by which he re-evaluated 

whether production was necessary, notwithstanding the existence of a 

11 428 F. Supp. 384, 395 (1977); Thill 

Securities Corp. v. New York Stock Exchange, 57 F.R.D. 133, 138 (E.D. Wisc. 

1972). 

12 Additionally, as contestants themselves have shown this is a high 

profile litigation in which Secretary of Labor Lynn Martin has been personally 

involved. Brief Exhibit B at 8; Brief Exhibit A at 19 20; PIR at 12-13. 

13 Parts of one document were ordered to be produced and the remainder 

presented for in camera inspection. 

1001 
privi 

disclosure, 

This process resulted in 49 documents be protected from 

i.e., privileged, and 18 documents being ordered disclosed. 14 

In Order 3, the judge issued orders in response to contestants' motion 

to compel and the Secretary's motion for reconsideration. The judge also 

accepted for in camera review nine additional documents tendered by the 

Secretary. This process resulted in three documents being protected from 

disclosure, i.e., privileged, and eight documents being ordered disclosed. 

In all, the judge examined, in camera, 25 of the 67 documents claimed to 

be privileged. 

2. Did the judge fail to reguire sufficient factual material in 

support of the Secretary's claimed privilege? 

Contestants argue that the Secretary has not been required to furnish 

sufficient factual data to support her assertion of privilege; that a detailed 

description of each document, along with a detailed justification for the 

claim of privilege is required; that the Secretary "must be required to submit 

a 'Vaughn' index in order for the to determine whether the documents are 

privileged." 15 Brief at 12. 

The Secretary argues that the judge has been presented with more than a 

sufficient basis for his rulings on privilege. She rejects contestants' 

demand for a Vaughn index arguing that courts have required such an indexing 

in FOIA cases where the court is confronted with masses of documents, 

"unrelated to any specific claims, with which the court is unfamiliar." 

Response brief at 32. By contrast, the j in the instant case is 

intimately familiar with the litigation and able to place the documents in 

issue in proper context. The Secretary claims the requirement to create such 

an index would yield no new information to contestants. Moreover, because the 

Secretary has offered to provide the documents to the judge for 

inspection, any question he may have the application of a ge 

can easily be resolved. . at 34. 

3. 

Contestants broadly challenge all conclusions of privilege made by the 

judge, claiming in general that he did not properly apply the tests required 

to sustain each privilege. Contestants separately describe the scope of each 

of the five privileges at issue and assert particular errors of the judge. 

14 Portions of two of the documents were excepted from the disclosure 

order. 

15 In 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 

U.S. 977 (1974), a case brought pursuant to the FOIA, the court ordered that the 

agency furnish an index containing an itemization of the documents with a 

correlated indication of its asserted justification for each claimed privilege. 

1002 
In defending the judge's ruling, the Secretary separately analyzes the 

scope of each privilege and responds to each of the asserted charges of 

judicial error. 

4. Did the judge's orders prevent meaningful review because 

assertedly they lack sufficient factual detail and analysis? 

Contestants charge that the judge failed to sufficiently explain the 

bases for his rulings, thereby precluding meaningful review and running afoul 

of Commission precedent that the judge must "clearly articulate the basis for 

his conclusion" set forth in Asarco, 12 FMSHRC 2548, Brief at 6-7. 

The Secretary defends the adequacy of the judge's orders by tracing each 

order and describing the manner by which the judge evaluated, analyzed, and 

explained his rulings as to each individual document. The Secretary contends 

that the judge complied with Commission Procedural Rule 55(d), 29 C.F.R. 

§ 2700.SS(d)(infra). 

B. Disposition of Issues 

Contestants' issues 2, 3, and 4 address the discretion to be accorded 

the judge in discovery proceedings. The Commission's standard of review is 

determined by our procedural rules and relevant court precedent. 

Discovery before the Commission is regulated by Commission Procedural 

Rule 55, 29 C.F.R. 2700.55. 16 The scope of discovery permitted is specified 

in Rule 55(c): 

Parties may obtain discovery of any relevant matter 

not privileged, that is admissible evidence or appears 

reasonably calculated to lead to the discovery of 

admissible evidence. 17 

In reviewing a judge's rulings under the above-cited rule, the 

Commission described its standard of review as follows: 

[T]he Commission cannot merely substitute its judgment 

for that of the administrative law judge ... The 

Commission is required however, to determine whether 

the judge correctly interpreted the law or abused his 

16 Rule l(b), 29 C.F.R. 2700.l(b) also pertains: "On any procedural 

question not regulated by the Act, these Procedural Rules, or the Administrative 

Procedure Act (particularly 5 U.S.C. 554 and 556), the Commission or any Judge 

shall be guided so far as practicable by any pertinent provision of the Federal 

Rules of Civil Procedure as appropriate." 

17 The documents in issue are apparently relevant inasmuch as the 

Secretary listed the documents in the Generic and Privileged Document List in 

response to the judge's order to include all relevant documents. Furthermore the 

Secretary has not argued to the contrary. 

1003 
discretion and whether substantial evidence supports 

his factual findings. 

12 FMSHRC at 2555 (citations omitted). That case was one in which the 

Commission was reviewing the discovery rulings of the judge after entry of a 

final order of dismissal based on the Secretary's refusal to comply with the 

judge's order to produce documents claimed to be privileged. 

In similar cases (after entry of a final order), courts have recognized 

"the broad discretion the discovery rules vest in the trial court 1118 and have 

expressed a standard of review that is even more limited: 

A district court has very wide discretion in handling 

pretrial discovery and we are most unlikely to fault 

its judgment unless, in the totality of the 

circumstances, its rulings are seen to be a gross 

abuse of discretion resulting in fundamental 

unfairness in the trial of the case. 

Voegeli v. Lewis, 568 F. 2d 89, 96 ,(.8th Cir. 1979) (citations omitted). Indeed 

our Commission Procedural Rule 55(d) also grants broad discretion to the 

judge: 

Discovery limited by Judge. Upon application by a 

party or by the person from whom discovery is sought 

or upon his own motion, a judge may, for good cause 

shown, make any order limiting discovery to prevent 

undue delay or to protect a party or person from 

annoyance, oppression, or undue burden or expense. 

(Emphasis supplied). 

Thus, when analyzing the manner, content, and effect of a judge's 

discovery rulings, the judge, by rule, is authorized to exercise wide 

discretion in discovery matters, and the Commission by precedent is 

disinclined to substitute its judgment for that of the judge unless error or 

abuse of discretion has occurred. 

Further support for the application of this standard of review, or one 

that accords the judge even wider discretion, is drawn from the fact that the 

Commission is not reviewing a final order of the judge. Notwithstanding the 

rule that discovery orders are usually not appealable, 19 we have accepted 

contestants' (and the Secretary's) representations that the matters raised in 

18 BC. Wright & A. Miller, Federal Practice and Procedure§ 2006 at 35. 

19 See 8C Wright & A. Miller, Federal Practice and Procedure § 2006 at 

29 (1970); 9 Moore's Federal Practice§ 110.13[2] at 132 (2d ed. 1991). However, 

our decision to grant the petitions is grounded in the recognition that this is 

an unprecedented litigation of enormous impact and concern to all parties that 

raises complex procedural and substantive issues of first impression. 

1004 
the petitions involve controlling questions of law, the review of which "may 

materially advance the final disposition of the proceedings." 20 In 

determining whether to grant review of pretrial discovery orders on an 

interlocutory basis, courts have recognized and erected a high threshold of 

review. 

[I]n the absence of a certification ... or of a 

showing of 'persistent disregard of the Rules of Civil 

Procedure' (citation omitted), or of 'a manifest abuse 

of discretion' (citation omitted), on the part of the 

district court, no jurisdictional basis exists for 

interlocutory review of pretrial discovery orders of 

the type here p~esented. 21 

Xerox Corp. v. SCM Corp., 534 F.2d 1031, (2nd Cir. 1976). Accordingly, in 

this case, the discretion accorded the judge under the Commission's procedural 

rules is broadly construed. 

Did the judge rely upon sufficient factual material in ruling on the 

privilege? (Issue 2) 

This is a matter that is squarely within the discretion of the judge and 

will not be disturbed unless a clear abuse of discretion is demonstrated. On 

the facts presented in this case, contestants have failed to demonstrate 

judicial abuse. 

After reviewing the Secretary's document list and the two affidavits 

invoking the privilege claims, and after applying the appropriate legal 

principles, the judge agreed to protect 50 of the 67 documents claimed to be 

privileged. As to the protected documents he stated, "I conclude that her 

[the Secretary] description of these documents, while somewhat cryptic and 

lacking in detail, is sufficient for me to determine that the documents fit 

the privilege asserted." Order 1 at 9. He then proceeded, item by item, to 

rule on each document in this group. At the same time, apparently concluding 

that he was provided an insufficient amount of information supporting certain 

claims of privilege, the judge ordered the production of 14 documents for his 

in camera inspection. He also rejected four claims of privilege. Id. at 16-

17. As previously noted, before the issuance of his third order, the judge 

had actually inspected 25 of the 67 documents claimed to be privileged. Thus 

it is clear that when the judge determined more was needed to support a 

privilege claim he acted, ordering production of the documents for his 

camera inspection, and the Secretary complied. 

Indeed, the record demonstrates that the Secretary has consistently 

offered to make the documents available for in camera inspection, "in the 

20 See Commission Procedural Rule 74, 29 C.F.R. 2700.74(a). 

21 The contestants did not request nor did the judge issue a 

certification for interlocutory review. The Secretary however did file a motion 

seeking certification. The judge denied the motion. 

1005 
event that the Judge is unable from the document description provided by the 

to determine the validity of the privilege asserted, the Secretary 

agrees with Kentucky Carbon that an .=:.:;;;.....:::.=~~ inspection of any such 

document is appropriate. 

Thus, availability of access to the disputed documents and the sound 

reasons contained in the Secretary's response brief, 23 provide strong support 

for a rejection of contestants' demand for a so-called "Vaughn index." In 

484 F.2d 820, the circuit court was reviewing the district court's 

summary judgment in favor of the Civil Service Commission, which had denied a 

FOIA request claiming that certain exemptions to disclosure obtained. Noting 

that the Supreme Court, in the seminal FOIA case, Mink, 410 U.S. 73 "made it 

clear that it was not always necessary for a court to conduct an in camera 

examination" (Vaughn supra, at 824, fn. 16), the Vaughn court proceeded to put 

its gloss on the approach to be taken by trial courts in determining whether 

documents fit within FOIA exemptions. However, the indexing required by the 

court was based upon an entirely different type of litigation than the case at 

bar. In Vaughn, a law professor, engaged in research on the Civil Service 

Commission, sought disclosure of reports, running into "many hundreds of 

pages" which were not related to any litigation or claim the professor had 

with the Commission. The court observed: 

This lack of knowledge by the party seeing (sic) 

disclosure seriously distorts the traditional 

adversary nature of our system's form of dispute 

resolution. Ordinarily, the facts relevant to a 

dispute are more or less equally available to adverse 

parties. In a case aris under the FOIA this is not 

true, as we have noted, and hence the typical process 

of dispute resolution is impossible. 

at 824-825. 

Thus, the circumstances the court's determination are unique 

to FOIA litigation and not present in the case at bar. The "dispute 

resolution" typically employed is an inspection. "Where the ALJ had 

questions about particular documents he reviewed them, resulting in inspection 

of approximately a quarter of the documents ruled privileged." Response Brief 

at 34. 

Accordingly, we conclude that the judge's reliance upon the record 

information was well within his discretion and that contestants have failed to 

demonstrate any abuse, or any reason why the judge should have compelled a 

"Vaughn index." We also note that the record.discloses the existence of no 

22 Secretary's opposition to motion to compel discovery, August 9, 1991 

at 1. Except, the Secretary refused to furnish document 406 which she maintained 

was prohibited from disclosure under Rule 6(e), Fed. R. Crim. P. 

23 at 9-11, 31-35. 

1006 
motion or any other attempt by contestants, subsequent to the issuance of the 

judge's orders, to cause the judge to require more information or receive 

additional documents for an in camera inspection. 24 

Did the judge properly apply the privileges? (Issue 3) 

The judge has set forth an accurate description of the legal elements 

underlying each of the privileges. 25 While contestants' complaint is that 

the Secretary provided, and the judge relied upon, too little information to 

support the asserted privileges, contestants also support their challenge by 

listing specific documents and coupling them with specific alleged errors. 

The Secretary's defense generally provides sufficient basis for sustaining the 

judge. 26 In other instances the charges of contestants are not well 

founded. 27 

Deliberative process privilege. In their challenge, contestants assert that 

six of the 11 documents protected pursuant to this privilege refer to 

communications occurring after a policy had been settled upon, and therefore 

fail to meet the first prong of the'·test, that documents be "pre-decisional." 

The Secretary's rebuttal indicates that four of the documents relate to the 

issuance of civil citations and were pre-decisional with respect to that 

decision. Response Brief at 22. As to the remaining two documents, they 

"discuss options for how to improve MSHA's.dust sampling program in the 

future, and remain pre-decisional because these policy decisions have not yet 

24 Contestants' July 21, 1991 motion to compel discovery contains an 

alternative request for in camera inspection. 

25 With the exception of the guideline imposed regarding the 

deliberative process privilege that was the focus of the Secretary's challenge 

in her petition for interlocutory review. 

26 Except as noted by the Secretary, document no. 17 "held to be 

protected by the attorney-client privilege, should have been protected instead 

as work product, which the Secretary also claimed." Response Brief at 25, fn 19. 

27 With respect to their challenge to document no. 203, contestants note 

that the judge protected the document notwithstanding the Secretary's failure to 

assert the privilege on the "Secretary's repository list." Brief at 19, fn 14. 

However, in her October 4, 1991, motion for reconsideration, the Secretary 

expressly asserted privileges, including the deliberative process 

privilege. 

In support of their challenge to the work product privilege contestants 

assert that "many of the documents held to fall within this privilege, were not 

generated by the Secretary's counsel and, in fact, were undated with unknown 

authors." Brief at 26. Contestants support the statement with reference to 13 

particular documents. Examination of the record discloses that of the 13 

referenced documents, six were both undated and unsigned and of those, three were 

prepared for the U.S. Attorney's criminal investigation and the remaining three 

were computer printouts. Of the seven documents that were dated, three were both 

dated and signed. 

1007 
been made." Id. at 22-23. The Secretary also indicates that a third 

deliberative process occurred relating to matters to be referred for criminal 

action. 

Contestants charge that eight of the 11 documents failed to meet the 

second prong of the deliberative process privilege test, i.e., they were not 

"deliberative." The Secretary defends, stating all 11 documents" contain 

opinions, recommendations, discussion points, options and other deliberative 

materials." Id. at 23. She indicates that some of the documents were 

prepared by the Assistant Secretary for the Secretary; some were in draft form 

and others were handwritten notes. She notes that the judge has inspected 

four of the documents in issue. 

Investigative process privilege. Although contestants argue that too little 

information was given to and received from the judge, the Secretary defends 

the judge's rulings, averring that 17 of the 19 documents so protected relate 

to ongoing criminal investigations and that the two remaining documents relate 

to a separate civil investigation. 28 As such, the judge apparently concluded 

that disclosure of the documents "wbuld interfere with those enforcement 

proceedings. " 29 

Attorney-client nrivilege. Again, all documents so protected are challenged 

en masse, with the complaint essentially being that the "judge decided this 

issue based solely upon whether the author and recipient of a particular 

document were in an attorney-client relationship" and that the judge "failed 

to consider the extent to which a waiver of any claim ... has occurred." 

Brief at 23-24. The Secretary states that all the documents except one "deal 

primarily with highly sensitive criminal matters." Response Brief at 25. She 

also explains that two separate attorney-client relationships exist, one 

between the Department of Justice (the attorney) and the Department of Labor 

(the client), concerning criminal matters; and the second between the Office 

of the Solicitor (attorney) and the Office of the Secretary and MSHA (the 

clients), and that all the documents so protected resulted from one of these 

relationships. 

Regarding the allegation that the privileges may have been waived, the 

Secretary states "Contestants never argued to the ALJ that the Secretary 

waived any privilege, and, in fact, they still cite nothing in the record to 

support such a claim." Id. at 31. 

Work product privilege. The judge protected 20 documents under this 

privilege. Contestants' challenge is essentially that too little information 

was provided to the judge who then ruled in a summary fashion making it 

impossible to determine if he properly applied the principles regarding the 

privilege. Brief at 25. The Secretary claims all 20 documents "were created 

28 Three of the documents protected under the investigative process 

privilege (Nos. 154, 161, 375) were not so claimed by the Secretary, however they 

were inspected in camera by the judge. 

29 See Order 1 at 6. 

1008 
in connection with the tampering allegations and dealt specifically with 

potential or actual criminal or civil litigation." Response Brief at 17. She 

observes that contestants did not challenge the basic fact that the documents 

were prepared "'in anticipation of litigation or for trial' by government 

attorneys or their agents within MSHA." Id. Two of the documents are the 

work product of the Department of Justice, relating to criminal matters. Six 

of the documents were prepared by attorneys in the Office of the Solicitor. 

All contain "opinions, legal theories, and/or discussions of future litigation 

plans and strategies." Id. at 18. The remaining 12 documents "were all 

prepared by MSHA employees in connection with the AWC criminal investigation." 

Id. Nine of the 12 were "'prepared at the direction of, and for the 

assistance of, the U.S. Attorney'" while the remaining three also relate to 

the criminal investigation. Id. at 18-19. 

Each of the judge's orders details the legal elements required in 

balancing the interests of the parties following the determination that the 

qualified privileges, i.e., deliberative process, investigative process, or 

work product, were properly invoked and obtain. In those instances the judge 

applied the test set forth in the Commission's Bright decision. Order 1 at 8-

9; Order 2 at 4-5; Order 3 at 1-3. The judge also properly recognized that 

the attorney-client privilege is an absolute privilege, which does not require 

a balancing analysis after a determination that the privilege is properly 

claimed. 

After reviewing of the record, 30 including the judge's orders, the 

affidavits, the document list and the elaborations offered by the Secretary31 

we conclude that contestante have failed to establish judicial error or abuse 

of discretion with respect to the application of the four privileges. 

Accordingly, we affirm the judge's rulings on these matters. 

Rule 6(e) of the Federal Rules of Criminal Procedure. Contestants' allege 

that the Secretary has failed to prove that the information in two folders 

(Nos. 11 & 12) of document 406 "is truly before a grand jury and that the 

disclosure of the information is prohibited by Rule 6(e)." Brief at 29. 

Contestants properly note that the judge has not protected these documents 

under this provision of the rules, but make this challenge because the 

Secretary has invoked the protection under this rule. Contestants also 

challenge the application of the rule since the documents are not within the 

possession of the grand jury. 

The Secretary responds that the documents claimed to be protected from 

disclosure under this rule are secret grand jury materials in the possession 

of MSHA's Robert Thaxton, an authorized grand jury agent, and that disclosure 

of the documents is absolutely prohibited under the rule. Moreover, the 

Secretary, citing Federal Rule of Criminal Procedure 6(e)(3)(D), states that 

30 The documents in issue were not contained in the record before us and 

the Commission did not view any documents in camera. 

31 See Secretary's 8/9/91 opposition to motion to compel discovery and 

Secretary's 10/4/91 motion for reconsideration. 

1009 
the prohibition against disclosure extends to the Commission and its judges 

because the rule authorizes the of a petition for disclosure only 

before a district court where the grand jury convened. Id. at 27. 

Although the judge has not ruled on this matter, the Secretary continues 

to assert this basis for protection because the documents are presently 

protected only by the qualified work product privilege. Id. at 26. The judge 

declined to rule on this issue because he determined that the subject 

documents were privileged on other grounds. Order 1 at 8. 

We conclude however, that the Secretary is entitled to a ruling on the 

issue and therefore remand the matter to the judge for such purpose. 

Did the judge provide sufficient factual detail and analysis? (Issue 4) 

The contestants originally argued that the orders fail to contain 

"findings of fact, conclusions of law and the reasons or basis for them." PIR 

at 3. The Secretary countered that those requirements refer only to final 

dispositions, and not to discovery,orders. See 29 C.F.R. 2700.65(a). As 

noted above, Rule 55(d) pertains. As measured against that standard, 

contestants' challenge fails to establish any abuse of discretion. The judge 

carefully referenced the applicaple case law, evaluated the documents item by 

item, applied the law and rendered his rulings. He examined 12 of the 52 

documents in issue. Consequently, contestants' have failed to establish that 

the judge abused his discretion. Accordingly, we affirm the judge's rulings. 

III. Conclusion 

For the foregoing reasons, we hereby dissolve our order of November 13, 

1991 staying the judge's order to produce certain documents, and we affirm the 

judge's order requiring the production of certain documents claimed to be 

protected by the deliberative process privilege. We also remand to the judge 

for his analysis and ruling on those documents claimed by the Secretary to be 

protected by the work product 32 

32 The related issue raised by the Secretary in her motion to supplement 

the record with expert witness list (January 30, 1992) is not before the 

Commission, and consideration of it would be premature since the judge has not 

ruled on the work product privilege issue. Therefore the motion is denied. 

1010 
Further, we reject contestants' assertions of error; affirm the judge's 

rulings; 33 and expressly provide that our decision is without prejudice to 

contestants' right to file before the judge a motion for inspection 

of any particular document. We also direct the judge to rule on the 

Secretary's assertion of Rule 6(e) of the Federal Rules of Criminal Procedure 

as a basis for nondisclosure. 

33 Except as provided in fn. 26 supra. 

1011 
Distribution 

Douglas N. White, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Timothy H. Biddle, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

R. Henry Moore, Esq. 

Buchanan Ingersoll 

600 Grant St., 58th Floor 

Pittsburgh, PA 15219 

Laura E. Beverage, Esq. 

Henry Chajet, Esq. 

Jackson & Kelly 

1701 Pennsylvania Ave., }fw 

Suite 650 

Washington, D.C. 20006 

Linda Homerding, Esq. 

Williams & Connolly 

839 17th St., N.W. 

Washington, D.C. 20006 

Ellen L. Beard, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

200 Constitution Ave., NW 

Room N-2700 

Washington, D.C. 20210 

Administrative Law Judge James A. Broderick 

Federal Mine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1012 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 23, 1992 

v. Docket No. KENT 91-1084 

GATLIFF COAL COMPANY, INC. 

BEFORE: Ford, Chairman; Backley, D?!le, Holen and Nelson, Commissioners 

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 .2..§.9.. (1988). On May 20, 1992, 

Commission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default finding respondent Gatliff Coal Company, Inc. ("Gatliff") in default 

for failure to answer the Secretary of Labor's civil penalty proposal and the 

judge's order to show cause. The judge assessed the civil penalty of $2,400 

proposed by the Secretary. Gatliff filed a petition for discretionary review 

on June 12, 1992, requesting that this matter be reviewed, on the grounds that 

it mistakenly believed that it had filed its answer in this proceeding but, in 

fact, its answer was filed in another Commission proceeding due to clerical 

errors. We grant the petition for discretionary review of the judge's default 

order and remand this matter to the judge for further proceedings. 

It appears from the record that 

its failure to respond to the judge's 

Company, 12 FMSHRC 1201 (June 1990). 

Civ. P. 60(b)(l), the Commission has 

showing of inadvertence, mistake, or 

11 FMSHRC 131, 132 (February 1989). 

Gatliff may have an excusable reason for 

show cause order. See Hickory Coal 

Under the standards set forth in Fed. R. 

afforded relief from default upon a 

excusable neglect. ~. Amber Coal Co., 

We are unable on the basis of the present record to 

of Gatliff's position but, in the interest of justice, we 

the opportunity to present its position to the judge, who 

whether final relief from the default order is warranted. 

Trucking Co., 8 FMSHRG 1867 (December 1986). 

1013 

evaluate the merits 

will permit Gatliff 

shall determine 

See, ~. Kelley 
Accordingly, we vacate the judge's default order and remand this matter 

for further proceedings. 

Distribution 

Robert I. Cusick, Esq. 

Wyatt, Tarrant & Combs 

Citizens Plaza 

Louisville~ KY 40202 

Douglas N. White, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

t;::·~lb& 

Arlene Holen~ 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1014 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA}, 

Petitioner 

v. 

R & N COAL COMPANY, 

Respondent 

51992 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 91-1320 

A. C. No. 36-02105-03521 

Docket No. PENN 92-140 

A. C. No. 36-02105-03523 

Split Vein Breaker Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Maurer 

These cases are before me upon a petition for assessment of 

civil penalties under section 105(d) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801, et seq. Petitioner has 

filed a motion to approve a negotiated settlement between the 

parties and to dismiss these cases. In light of the respondent's 

dire financial situation, the Secretary has proposed a 90 percent 

reduction in penalty with respect to each violation and further 

proposed that payment of the penalties be made in 6 monthly 

installments. 

R & N Coal Company at this point has no employees with its 

only source of income being rental income of $3250 per month. 

I have considered the Secretary's representations and the 

financial data submitted and I conclude that the proffered 

settlement consistent with the criteria in section llO(i) of 

the Acte 

ORDER 

WHEREFORE IT IS ORDERED that the motion for approval of 

settlement IS GRANTED and respondent shall pay a total penalty of 

$4350. The first payment of $725 is due within 90 days of this 

order and five additional payments of $725 are to be made no more 

that 30 days from the previous one until payment is made in full. 

Upon payment in full, these cases ARE DISMISSED. 

~· 

aurer 

·rative Law Judge 

1015 
Distribution: 

covette Rooney, Esq., Office of the Solicitor, U. s. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

Frank L. Tamulonis, Jr., Esq., Zimmerman, Lieberman & Derenzo, 

111 East Market Street, P. o. Box 238, Pottsville, PA 17901 

(Certified Mail) 

dcp 

1016 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 91992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION 

Petitioner 

v. 

CAPRICORN COAL COMPANY, INC. 

Respondent 

) 

) 

) 

) 

) 

) 

) 

) 

PENALTY PROCEEDING(S) 

Master Docket No. 91-1 

Docket No. KENT 91-1028 

A. C. No. 15-16376-035150 

Mine No. 3 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On June 2, 1992, the Secretary filed a motion to approve a 

settlement between the parties in the above case. The case 

includes one alleged violation of 30 C.F.R. Section 70.209(b), 

which was originally assessed at $1,200. The Secretary continues 

to assert that the violation resulted from a deliberate act, 

which is denied by the mine operator. The degree of negligence 

is disputed, and the parties agree to the reduction in the total 

penalties from $1,200 to $960. 

I have considered the motion in light of the criteria llO(i) 

of the Act and conclude that it should be approved. 

Accordingly, the settlement motion is APPROVED. The 

operator is ordered to pay within 30 days of the date of this 

order the sum of $960 for the violation charged in this 

proceeding. 

Distribution: 

' 

1.f 1A ·', ·/ f/i _. -/.,J..., 't(/ /_,. /! • 1 · ~- ,, -f / h l'.J r "/.r·> .1. 

/,.,,.\.....-"-.) '' ~· ~'-''"r v\.I - i,.....-1''~ 

' .... / James A. Broderick 

Administrative Law Judge 

Mark A. Malecki, Esq., Office of the Solicitor, U. S. Department 

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

Michael J. Schmitt, Esq., Wells, Porter, Schmitt and Walker, 

327 Main Street, P. o. Box 1179, Paintsville, KY 41240-5179 

1017 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

RAYMOND D SHEETS, 

Complainant 

v. 

KOCH CARBON, INC., 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~ l ' ·:.. '. 

. J '·''·'' \. -~ . ' 

DISCRIMINATING PROCEEDING 

Docket No. VA 92-5-D 

NORT CD 91-09 

DISMISSAL OF PROCEEDING 

Before: Judge Barbour 

On April 20, 1992, counsel for Respondent advised me by 

letter of a telephone conversation with Complainant in which 

Complainant stated that he wished to "drop" this case. Counsel 

enclosed a letter dated April 9, 1992, from Complainant to me 

(but sent to counsel) stating: "I,· Raymond David Sheets, wish to 

drop my case against Koch Carbon with no further actions to be 

taken." Subsequently, I issued an order to the parties to show 

cause within 10 days why this matter should not be dismissed with 

prejudiceo Neither party has responded to the order. 

ACCORDINGLYu there being no reason given why this case 

should be continued on the docketu the Complainant 1 s request is 

granted and this matter is DISMISSED with prejudice. 

Distribution~ 

- -. _,..--, /·· 

)7//'~1''~L·L-~/.__.___ David Barbour 

Administrative Law Judge 

Mro Raymond Do Sheets, Route 2, Box 515A, North Tazewell, VA 

24630 (Certified Mail) 

Louis K. Obdyke, IV, Esq., Associate General Counsel, Koch 

Industries, Inc., P.O. Box 2256, 4111 E. 37th Street, North, 

Wichita, KS 67201 (Certified Mail) 

/epy 

1018 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266 I FTS 564-5266 

.,, -' ' ' ·7 .-: ·~:: ~ 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: 

: 

. . Docket No. CENT 91-149-M 

A.C. No. 39-00180-05511 

v. p Q 1643 

: 

HILLS MATERIALS COMPANY, 

Respondent 

App ea ranc es: 

Before: 

DECISION 

Susan J. Eckert,_ Esq. 1 Off ice of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward c. Carpenter, Esq., COSTELLO, PORTER, HILL, 

HEISTERKA.MP & BUSHNELL, Rapid City, South Dakota, 

for Respondent. 

Judge Lasher 

Upon motion for approval of a proposed settlement of the 

five violations involved after hearing, and the same appearing 

proper, the settlement is APPROVED. 

Upon evaluation of the evidence in the record, the parties 

agree that two of the Citations involved should be modified and 

the penalties therefor reduced" Respondent agrees to the Petitioner ij s proposed penalties for the three remaining Citations. 

The terms of the settlement are reflected in the order below. 

The penalties agreed to by the parties are here ASSESSED. 

ORDER 

lo Citations numbered 3629578 and 3635122 are MODIFIED 

to delete the "Significant and Substantial" designations thereon 

and are otherwise AFFIRMEDo 

2o Respondentv if it has not previously done so, is 

ORDERED TO PAY to the Secretary of Labor within 40 days from 

the date hereof the sum of $817 ($20 each for Citations numbered 

3629578 and 3635122 and $259 each for Citations numbered 3629575, 

3629577, and 3629579). 

~£.-tt~ 4 ~ /r 

Mi cha el A. Ia sher, Jr. 

Administrative Law Judge 

1019 
Distribution: 

Susan J. Eckert, Esq., Office of the Solicitor, u.s. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

Edward Co Carpenter, Esq., COSTELLO, PORTER, HILL, HEISTERKAMP & 

BUSHNELL, P.O. Box 290, R:ipid City, SD 57709 (Certified Mail) 

Mrc Jim Johnson, Industrial Relations Manager, HILLS MATERIALS 

COMPANY, PoOe Box 2320, R:ipid City, SD 57709 (Certified Mail) 

ek 

1020 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 1 71992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DORIS COAL COMPANY, INC., 

Respondent 

. 

0 

. . 

. . 

0 

0 

0 

. 

CIVIL PENALTY PROCEEDING 

Master Docket No. 91-1 

Docket No. VA 91-571 

A. C. No. 44-04704-03533D 

No. 7 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

on June 10 1 1992, the Secretary filed a motion to approve a 

settlement between the parties in the above case. The case 

includes thirteen alleged violations of 30 C.F.R. § 70.209(b), 

which were originally assessed at $1,100 apiece. The Secretary 

continues to assert that the violations·resulted·from a· 

deliberate act, which is denied by the mine operator. The degree 

of negligence is disputed, and the parties agree to the reduction 

in the total penalties from $14u300 to $12u155. 

I have considered the motion in light of the criteria in 

section llO(i) of the Act and conclude that it should be 

approved. 

Accordinglyu the settlement motion is APPROVED. The 

operator is ordered to pay within 30 days of the date of this 

order the sum of $12 0 155 for the violations charged in this 

proceeding" 

j~~5~=~L- Administrative Law Judge 

1021 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JL\N171992 

ROY FARMER ON BEHALF OF 

OTHER MINERS, 

Complainant 

COMPENSATION PROCEEDING 

Docket No. VA 92-59-C 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

VP-3 Mine 

ORDER OF DISMISSAL 

Before: Judge Melick 

Complainants request app:r,pval to withdraw\ their complaint in 

the captioned case based upon a settlement of :the underlying 

dispute. Under the circumstances herein, permission to withdraw 

is granted. 29 C.F.R. § 2700.11. This case i~ therefore 

dismissed. " ;\ : ! 

t : ·' I I ; :;/I.·\·'" 

'r~· :,· ~,,. ,.} i / !/' I . 

\ 

'\.., .... . / 

Ga.i;-y Melick ~ 

Adffiinistrative' Law Judge ' r 70,-756-6261 / 

Distribution~ I 

Mr. Roy Farmer, P.O. Box 63, Swords Creek, VA 24649 

(Certified Mail) 

Timothy M. Biddle, Esq,, Crowell & Moring, 1001 Pennsylvania 

Avenue, N.W., Washington, DC 20004 (Certified Mail) 

Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th 

Street, N.W. Washington, D.C. 20005 

/vmy 

1022 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN·i 81992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MAR-LAND INDUSTRIAL CONTRACTOR, 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. SE 90-117-M 

A. C. No. 54-00001-05503 BOY 

Ponce Cement or 

Ponce Cement Plant 

DECISION ON REMAND 

Before: Judge Weisberger 

On May 27, 1992, the Commission issued a decision in this 

matter to me 11 ••• for reassessment of a civil penalty in light of 

the considerations set forth above". (Mar-Land Industrial 

Contractor, Inc., SE 90-117-M, 14 FMSHRC, ~~slip op., May 27, 

1992). 

In its decision, the Commission reversed my finding of high 

negligence (13 FMSHRC 333 (1991)), and concluded, with regard to 

the negligence of Mar-Land as follows: "we consider the degree of 

neligence with respect to the violation in issue to be ordinary", 

(Mar-Land, supra 0 slip op., at 6)0 In light of this consideration, 

and considering the remaining statutory factors as stipulated to be 

by the parties, I conclude that a penalty of $1,000 is appropriate 

for the violation at issue. 

It is ORDERED that within 30 days of this decision, Respondent 

pay $lu000 as a civil penalty for the violation of 30 C.F.R. 

§ 56.15005. 

Avram Weisberger 

Administrative Law Judge 

1023 
Distribution: 

Eva L. Clarke, Esq., Office of the Solicitor, U. S·. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) , 

Daniel R. Dominguez, Miguel A. Maza, Esqs., Dominguez and Totti, 

P.O. Box 1732, Hato Rey, PR 00919 (Certified Mail) 

Jane Snell Brunner, Esq., Office of the Solicitor, U.S. Department 

of Labor, 201 Varick Street, Room 707, New York, NY 10014 

(Certified Mail) 

/ml 

1024 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDG.ES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 21992 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 90-429 

A. C. No. 15-16685-03510 

v. Docket No. KENT 90-430 

A. C. No. 15-16685-03511 

RAMBLIN COAL COMPANY, INC., 

Respondent 

. . No. 8 Mine 

Appearances: 

Before: 

DECISION 

Joseph B. Luckett, Esq., Nashville, 

TN, for Petitioner; 

Billy Shelton, Esq., Pikeville, KY, 

for Respondent. 

Judge Fauver 

These cases were brought by the Secretary seeking civil 

penalties for alleged violations of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et .§.filL.. By Order of 

July 1, 1991, KENT 90-430 was stayed, and in KENT 90-429, 

Citations 3367128, 3510164, and 3510419 were settled, and 

citation Noc 3509948 was stayed. An evidentiary hearing was held 

as to the remaining citationso 

Having considered the hearing evidence and the record as a 

whole 1 I find that a preponderance of the substantial, probative, 

and reliable evidence establishes the following Findings of Fact 

and warrants the following Conclusions of Law~ 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

lo The judge has jurisdiction in this proceeding. 

2. Respondent employs about 20 employees at its Mine No. 

8, which produces 125,000 to 150,000 tons of coal per year for 

sales or use substantially affecting interstate commerce. The 

coal seam in Mine No. 8 is 32 to 36 inches high. 

Citation No. 3368936 

3. Citation No. 3368936 was issued on November 28, 1989, 

by Inspector Thomas Charles for a violation of 30 C.F.R. 

1025 
§ 75.402. The evidence sustains the charge. Rock dust had not 

been applied as required to the following areas in the 002-0 

section: the No. 1 entry starting 40 feet outby the face and 

extending for 170 feet; the last row of open crosscuts across the 

section; and the No. 2 entry starting.at the outby corner of the 

last open crosscut and extending outby for 80 feet. The areas in 

question were very black. Two spot band samples were taken by 

Inspector Charles, and they support the citation. Inspector 

Randy Wellman accompanied Inspector Charles and confirmed his 

findings. 

4. Respondent should have observed and corrected this 

condition before the inspection, and was therefore negligent. 

Electrical equipment on the section provided an ignition source, 

and it was reasonably likely that an explosion or fire could 

occur, killing or seriously injuring 13 persons on the section. 

5. A penalty of $168 is appropriate, considering the 

criteria for a civil penalty in § llO(i) of the Act. 

citation No. 3367127 

6. Citation No. 3367127 was issued on January 26, 1990, by 

Inspector James Frazier for a violation of 30 C.F.R. § 75.601-1. 

The evidence sustains the charge. The trip setting for the 

number 6 cable supplying power from the power center to the Lee 

Norse roof bolting machine was improperly set. The cable should 

be set no higher than 300 amperes, but was set on 450. This 

created a danger of fire or smoke inhalation in the event of a 

short circuit or over-current. The power was on this piece of 

equipment when the violation was observed by Inspector Frazier. 

7o The violation was obvious and an electrician employed 

by Respondent was in the area. Respondent was therefore 

negligent. was reasonably likely that a fire might occur, 

causing serious injuries. 

8. A penalty of $54 is appropriate. 

Citation No. 3510451 

9. Citation No. 3510451 was issued on February 21, 1990, 

by Inspector Sam Harris for a violation of 30 C.F.R. § 75.601-1. 

The evidence sustains the charge. The trip setting for the cable 

connecting the section power center breaker to the mobile coal 

drill was not set properly. A number 6 cable was being used, and 

the setting for this cable should be set no higher than 300 amps. 

It was set at 550 amps. The power was on this piece of equipment 

when the violation was observed. 

10. The violation was obvious and should have been 

corrected before the inspection. Respondent was therefore 

1026 
negligent. It was reasonably likely that the cable might catch 

on fire if it were subjected to more current than it was designed 

to withstand. This could result in severe burns. 

11. A penalty of $54 is appropriate. 

Citation No. 3510452 

12. Citation No. 3510452 was issued on February 21, 1990, 

by Inspector Harris for a violation of 30 C.F.R. § 75.512. The 

evidence sustains the charge. The trailing cable (about 220 

volts) on the Lee Norse roof bolter was not maintained in a safe 

condition. The cable had a damaged place exposing about one inch 

of the underlying power conductors. The metal part of the 

conductor was exposed. This cable is ordinarily handled by hand 

by the roof bolter helper, who keeps it out of the way of the 

roof bolter and other equipment in the mine. 

13. The violation was obvious and should have been 

corrected before the inspection.. Respondent was therefore 

negligent. It was reasonably likely that the roof bolter helper 

might touch the bare conductor and suffer a fatal electrical 

shock. 

14. A penalty of $98 is appropriate. 

Citation No. 3510194 

15. Citation No. 3510194 was issued on March 6, 1990, by 

Inspector Harris for a violation of 30 C.F.R. § 77.1605(k). The 

evidence sustains the charge. The guard along the outer bank of 

the elevated roadway to the mine was not sufficient to prevent a 

vehicle from leaving the roadway. An adequate guard had been 

installed originallyv but the roadway was built up by adding 

ballast until the guard was beneath the surface. Further, in an 

area where posts had been installed the earth had slipped or 

eroded until there was no berm or guard for about 200 feet. The 

total length of roadway affected was 800 to 1,000 feet. 

16. The road was frequently traveled and the condition was 

obvious and dangerous. Respondent was therefore negligent. Coal 

trucks, supply vehicles, and miners driving to and from work 

regularly used the roadway. It was reasonably likely that one of 

these vehicles might travel off the roadway, causing fatal 

injuries to the driver. A fall of 80 to 100 feet to the bottom 

of the hollow would result. 

17. A penalty of $136 is appropriate. 

1027 
Citation No. 3510199 

18. Citation No. 3510199 was issued on March 6, 1990, by 

Inspector Harris for a violation of 30 C.F.R. § 75.1722(a). The 

evidence sustains the charge. Inspector Harris observed the Joy 

cutting machine being trammed from one working place to another 

with no guard on the cutter chain. The coal in this mine is 32 

to 36 inches. The machine operator had poor visibility because 

of the height of the coal and the size of the machine. 

19. Respondent should have observed and corrected this 

condition and was therefore negligent. The machine was set to 

travel about 60 feet to another working place. With 15 people in 

the mine, it was reasonably likely that a miner might come into 

contact with the cutting chain, causing serious injuries. 

20. A penalty of $112 is appropriate. 

citation No. 3509741 

21. Citation No. 3509741 was issued on March 28, 1990, by 

Inspector James Frazier for a violation of 30 C.F.R. § 77.513. 

22. The evidence sustains this charge. A dry wooden 

platform or insulated mat had not been provided for the number 

two charger, which was used to charge scoop batteries. The 

charger (480 volts) was on the mine surface and was fully exposed 

to the weather. 

23. Respondent should have observed and corrected this 

condition, and was therefore negligent. It was reasonably likely 

that someone might receive a fatal electrical shock. The charger 

was used several times a day to plug or unplug batteries for 

charging" 

24. A penalty of $112 is appropriate. 

Citation No. 3510420 

25. Citation No. 3510420 was issued on March 28, 1990, by 

Inspector James Frazier for a violation of 30 C.F.R. § 77.513. 

The evidence sustains the charge. A dry wooden platform or 

insulated mat had not been provided for the number one charger, 

which was used to charge scoop batteries. The charger (480 

volts) was on the mine surface and was fully exposed to the 

weather. 

26. Respondent should have observed and corrected this 

condition, and was therefore negligent. It was reasonably likely 

that someone might receive a fatal electrical shock. The charger 

was used several times a day to plug or unplug batteries for 

charging. 

1028 
27. A penalty of $112 is appropriate. 

Citation No. 3509742 

28. Citation No. 3509742 was issued on March 28, 1990, by 

Inspector Frazier for a violation of 30 C.F.R. § 75.503. The 

evidence sustains the charge. A scoop used in and inby the last 

open crosscut was not maintained in a permissible condition. 

There was an opening in excess of .005 inches in the main panel 

board; a rear headlight had no set screw in the lens and the 

headlight was not secured to the frame; there was no set screw in 

a packing gland nut; and the headlight on the right front of the 

scoop had no set screw in the packing gland nut. These problems 

created a danger of fire or explosion through ignition of coal 

dust. 

29. Respondent should have observed and corrected this 

condition, and was therefore negligent. It was reasonably likely 

that a spark might ignite the .coal dust in the air, causing an 

explosion or fire with serious injuries. Ten persons worked on 

the section. 

30. A penalty of $157 is appropriate. 

citation No. 3510415 

31. Citation No. 3510415 was issued on March 28, 1990, by 

Inspector James Frazier for a violation of 30 C.F.R. § 77.208(d). 

The evidence sustains the charge. Two compressed gas cylinders 

were placed beside the parts building and were not secured in a 

safe mannero There was a great deal of scrap metal in this area, 

which was frequently traveled by persons obtaining parts from the 

building or just going about ordinary surface duties. 

32. Respondent should have observed and corrected this 

condition, and was therefore negligent. It was reasonably likely 

that the cylinders might fall or be knocked over, causing an 

explosion or causing the cylinder to become a missile if the 

cylinder were punctured. 

33. A penalty of $112 is appropriate. 

citation No. 3509946 

34. Citation No. 3509946 was issued on April 10, 1990, by 

Inspector Sam Harris for a violation of 30 C.F.R. § 75.305. The 

evidence sustains the charge. The last recorded date in the 

record book entitled "Examination of Emergency Escapeways and 

Facilities; Smokers Articles; Fire Doors" was April 2, 1990. 

This examination is required to be made and recorded at intervals 

not to exceed seven days. The mine produces coal five days a 

week. 

1029 
35. Respondent was aware of the need to record the 

examinations. Negligence was moderate. It was unlikely that the 

violation would result in any injury. It was not significant and 

substantial. 

36. A penalty of $112 is appropriate. 

Citation No. 3509947 

37. citation No. 3509947 was issued on April 10, 1990, by 

Inspector Sam Harris for a violation of 30 C.F.R. § 75.300. The 

last recorded date in the record book entitled "Daily and Monthly 

Examination of Ventilation Equipment" was April 3, 1990. This 

examination is required to be made and recorded on a daily basis. 

The mine produces coal five days a week. 

38. Respondent was aware of the need to record the 

examinations. Negligence was moderate. It was unlikely that the 

violation would result in any·injury. It was not significant and 

substantial. 

39. A penalty of $112 is appropriate. 

Citation No. 3510198 

40. Citation No. 3510198 was issued on March 6, 1990, by 

Inspector Sam Harris for a violation of 30 C.F.R. § 75.301-4(a). 

The evidence sustains the charge. Inspector Harris attempted to 

take an air reading in the No. 7 active working entry and found 

no perceptible movement of air. An anemometer was used to take 

the air reading, and the blades of the instrument did not turn. 

The problem was caused by a line brattice, which did not reach 

the floor and did not adequately direct the flow of air to the 

face. 

41. It was obvious that the line brattice did not reach the 

floor of the mine, and that the flow of air would therefore be 

short-circuitedo Respondent was therefore negligent. It was 

reasonably likely that the two persons working in the entry could 

sustain serious injuries or disease as a result of this 

conditiono 

420 A penalty of $119 is appropriate. 

Citation No. 3510200 

43. Citation No. 3510200 was issued on March 6, 1990, by 

Inspector Harris for a violation of 30 C.F.R. § 75.208. The 

evidence sustains the charge. An area of unsupported roof, about 

10 feet long and 20 feet wide, was present in the No. 3 entry 

working place where coal had been loaded out. There was no 

visible warning device nor a barricade to prevent travel into the 

1030 
area of unsupported roof. Inspector Harris testified that the 

roof appeared to be fragile shale, susceptible to sloughing and 

falling. The height of the coal was about 36 inches. 

44. Respondent should·have observed and corrected this 

condition and was therefore negligent. It was reasonably likely 

that someone would enter the area and be struck by falling roof, 

sustaining fatal or severe injuries. 

45. A penalty of $112 is appropriate. 

Citation No. 3509801 

46. Citation No. 3509801 was issued on March 28, 1990, by 

Inspector Sam Harris for a violation of 30 C.F.R. § 75.400. The 

evidence sustains the charge. Accumulations of coal, coal dust, 

and float coal dust mixed with oil were present on a scoop used 

to load and haul coal in the face area. The accumulations 

covered much of the area of the scoop, including electrical 

components of the machine. This presented a danger of fire 

should the machine overheat or if some electrical problem 

occurred. 

47. This condition was readily visible. Respondent was 

therefore negligent. It was reasonably likely that a fire might 

be started or propagated because of the accumulations, causing 

serious injuries. 

48. A penalty of $85 is appropriate. 

Citation No. 3509802 

49. Citation No. 3509802 was issued on March 28, 1990, by 

Inspector Sam Harris for a violation of 30 C.FoR. § 75.503. The 

evidence sustains the charge. A scoop used to load and haul coal 

in the face area was not in a permissible condition. There was 

an opening in excess of four thousandths of an inch between the 

panel board cover and the supply compartment. The lens in the 

right headlight was displaced, and there was no set screw in the 

packing gland nut. The same headlight was not secure due to 

loosening of the set screws. There was an opening in excess of 

four thousandths of an inch between the main compartment and its 

cover. Finally, the parking brake on the scoop would not hold 

the machine stationary. 

50. These conditions presented a number of dangers. The 

primary danger was caused by the openings between the covers of 

the electrical compartments which could cause a spark to escape, 

igniting coal dust and causing a fire or explosion. An ignition 

was reasonably likely to occur, with 13 persons on the section 

exposed to danger of serious injuries. 

1031 
51. A penalty of $157 is appropriate. 

ORDER 

1. Respondent shall pay the above penalties of $1,812 

within 30 days of the date of this Decision. 

2. The civil penalties in the settlements approved on the 

record, if not previously paid, shall be paid by Respondent 

within 30 days of this Decision. 

3. The STAYS in Docket Nos. KENT 429 and 430 are LIFTED, 

and all citations charging excessive history violations are 

DISMISSED. 

4. This Decision and Order and the settlement approved on 

the record constitute a final disposition of all issues in these 

proceedings. 

Distribution: 

u)j&~~~~ William Fauver 

Administrative Law Judge 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

1 R. Shelton, Esq.u Baird, Baird, Baird and Jones, P. o. Box 

351 1 Pikeville, KY 41501 (Certified Mail) 

/fas 

1032 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

VP-5 MINING COMPANY, 

Contestant 

CONTEST PROCEEDINGS 

v. 

Docket No. VA 92-112-R 

Order No. 3800172 

SECRETARY OF LABOR, Docket No. VA 92-113-R 

MINE SAFETY AND HEALTH Order No. 3800173 

ADMINISTRATION (MSHA), 

Respondent Docket No. VA 92-114-R 

Order No. 3800174 

Appearances: 

Before: 

Docket No. VA 92-115-R 

Citation No. 3800175 

VP-5 Mine 

DECISION 

Timothy M. Biddle, Esq. and Thomas A. Stock, 

Esq., Crowell and Moring, Washington, D.C., 

for Contestant; 

Robert Wilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

Respondent 

Judge Melick 

These contest proceedings were filed by the VP-5 Mining 

Company {VP-5) pursuant to sections 105(d) and 107(e) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et~' the "Act,H to challenge two citations and two "imminent 

danger" withdrawal orders issued by the Secretary of Labor at 

the VP-5 Mine on March 25 and 26, 1992. 

The VP-5 Mine is a shaft coal mine located in southwestern Virginia employing 348 miners and annually producing 

about 1.37 million tons by both longwall and continuous miner 

methods. The north side of the mine where longwall panels 

have been extracted is known as the East Gob. The East Gob 

is a large (4,600 foot by 6,000 foot) inaccessible area 

remaining from seven mined-out longwall panels and is 

surrounded by bleeder entries on the north and west, by the 

1033 
9th Development Panel on the east (the site of an extant 

longwall mining operation), and by barriers separating it 

from the main intake air courses on the south (See Joint 

Exhibit No. 1). 

Methane is liberated during the mining process and 

continues to be liberated from the gob area. If the 

ventilating system is properly functioning, methane liberated 

at the longwall face is diluted and carried out of the mine 

by ventilating air currents. Methane not removed by such 

ventilation is ordinarily pulled into the gob by a pressure 

differential between the longwall face area and the gob. 

The methane moves from an area of relatively high pressure 

(the longwall face) to an area of lower pressure (the gob) 

Methane liberated from fallen roof in the gob flows out of 

the gob by air drawn through the gob and into adjacent bleeder 

connectors and bleeder entries which in turn, direct the 

methane to the main return air course. Under the Secretary's 

regulations, at the point where the bleeder entries intersect 

a main return, the methane concentration must be no more than 

2.0 percent. See 30 C.F.R. § 75.316-2(h). Additional methane 

is drawn off the gob through vertical ventilation holes drilled 

into the gob from the surface. 

MSHA Inspector Carl Duty appeared at the VP-5 Mine on 

March 25, 1992, to perform a spot inspection required under 

section 103(i) of the Act at mines liberating large amounts 

of methane. He proceeded to the bleeder entries surrounding 

the East Gob entering at the 1 North Main entries and traveled 

across the northern portion of the East Gob through one of the 

bleeder entries checking roof conditions and, using a Riken 

detector, tak~ng methane readings. These readings were all 

below 3.0 percent methane. He also obtained methane readings 

in each of 32 bleeder connectors across the north side of 

the gob. In three of these connectors he detected methane 

concentrations of 4.2 percent, 4.1 percent and 4.0 percent 

respectively. Laboratory analysis of a bottle sample then 

taken at the No. 1 connector of the No. 6 Development also 

showed 4.13 percent methane along with .16 percent carbon 

dioxide? 20.1 percent oxygen and .107 percent ethane. 

When Inspector Duty found 4.2 percent 

No. 1 connector of 6 Development he issued 

imminent danger withdrawal order directing 

operations be halted until further notice. 

longwall had already been shut down by the 

1034 

methane in the 

a section 107(a) 

that longwall 

Although the 

operator, Duty 
was unaware of this at the time he issued this order. Duty 

also issued a section 104(a) citation alleging that the VP-5 

Mine had failed to comply with its Ventilation Plan in 

violation of 30 C.F.R. § 75.316. The inspector maintains 

that VP-5 was not controlling methane levels in the East Gob 

as required by Paragraph 10 of the Veritilation Plan. The order 

was terminated later the same day when methane levels in the 

bleeder connectors were reduced to below 3 percent. 

The following day, March 26, 1992, Inspector Duty 

returned to the same area of the mine and obtained methane 

readings in the same bleeder connectors. Again he issued a 

section 107(a) Order and section 104(a) citation. He found 

4.75 percent and 4.8 percent methane at the Nos. 1 and 2 entries, 

respectively, at the 4 Development and 5.2 percent methane at 

the 6 Development. The inspector 1 s methane readings on both 

dates are undisputed. 

The citations at bar, No~~ 3800173 and 3800175, issued 

March 25, 1992 and March 26, 1992, respectively, charge 

violations of the VP-5 Ventilation Plan under the standard 

at 30 C.F.R. § 75.316 and allege as follows: 

The bleeder system was not functioning properly in 

that the methane content at the bleeder connectors 

from No. 2 Development through No. 6 Development 

ranged from 4.0 percentum at No. 2 Development to 

4.2 percentum at No. 6 Development. This is a 

significant increase in the amount of methane that 

is normally observed in these areas indicating that 

the methane content in these areas are [sic] not 

being controlledo (Citation Noo 3800173) 

The bleeder system was not functioning properly in 

that 4o5 to 5.2 percentum of methane was present in 

the bleeder connectors from No. 2 Development to 

No. 6 Development. The approved ventilation plan 

was not being complied with in that permanent type 

stoppings were being erected in the bleeder connectors 

at the top Noo 2 through Noo 7 Developments that 

prevents the gob areas from being ventilated as 

approved by the MSHA District Managero (Citation 

No. 3800175) 

In particular the Secretary maintains that in each case 

VP-5 violated paragraph 10 of its Ventilation System and 

Methane and Dust Control Plan, and, more spec ically, the 

following language of that plan: 

1035 
The bleeder entries, bleeder systems, or equivalent 

means will be used in active pillaring areas to 

ventilate the mine areas from which the pillars have 

been wholly or partially extracted so as to control 

the methane content in such areas. 

(Exhibit G - 12; Tr. 67-68, 115). 

The Secretary maintains, in addition, that under Citation 

No. 3800175, VP-5 also violated the provisions of subsection (a) 

of paragraph 10 of the Ventilation Plan. Those provisions read 

as follows: 

Bleeder entries will be defined as special air 

courses developed and maintained as part of the 

mine ventilation system and designed to continuously move air-methane mixtures from the gob, 

away from active workings, and deliver such mixtures 

to the mine return air courses. Bleeder entries 

will be connected to those areas from which pillars 

have been wholly or partially extracted at strategic 

locations in such a way to control air flow through 

such gob area, to induce drainage of gob gas from all 

portions of such gob areas, and to minimize the hazard 

from expansion of gob gases due to atmospheric change. 

Paragraph 10 of the Ventilation Plan requires in essence 

that the methane content of the gob must be controlled by the 

bleeder system or equivalent means. As noted by VP-5 however 

neither the Secretary's regulations nor the VP-5 Ventilation 

Plan specifically define what is meant by "control" of the 

methane content. The Secretary's regulations state only that 

bleeder s are "designed to continuously move air-methane 

mixtures the gob, away from active workings, and deliver 

such mixtures to the mine return air courses." See 30 C.F.R. 

§ 75.316-2(e)(l). As further noted by VP-5 there is no regulation or provision of the subject Ventilation Plan which 

mandates any particular concentration of methane as indicative 

of ncontrol." VP-5 argues that evidence of such control 

implicit in the requirements under 30 C.F.R. § 75.316-2(h) that 

exiting bleeder entries must contain no more than 2.0 percent 

methane where enters a return air course. There no dispute 

in this case VP-5 was, indeed, maintaining its bleeder air 

at 2.0 percent or less at the relevant checkpoint when Inspector 

Duty issued his citations. VP-5 argues that since this is the 

only indicia of control mentioned in the Ventilation Plan, that 

should be end of the matter. 

It is established law that once a ventilation plan is 

approved and adopted, its provisions are enforceable at the 

mine as mandatory safety standards. Zeigler v. Kleppe, 

536 F.2d 398 (D.C. Cir. 1976), Carbon County Coal Co., 

1036 
6 FMSHRC 1123 (1984), Carbon County Coal Co., 7 FMSHRC 1367 

(1985), Jim Walter Resources, Inc., 9 FMSHRC 903 (1987). In 

an enforcement action before the Commission, the Secretary 

bears the burden of proving any alleged violation. In plan 

violation cases the Secretary must establish that the provision 

allegedly violated is part of the approved and adopted plan and 

that the cited condition or practice violates the provision. 

Jim Walter Resources, Inc., supra, at p. 907. Where the plan 

provisions are ambiguous the Secretary may establish the 

meaning intended by the parties by presenting credible extrinsic 

evidence, for example, as to the.history and purpose of the 

provision and evidence of prior consistent enforcement. See 

Penn Allegh Coal Co., 3 FMSHRC 2767 (1981). 

The term "control" as used in Paragraph 10 of the 

Ventilation Plan is ambiguous and may indeed be subject to 

different interpretations. The issue here is whether the 

undisputed methane concentrations found in these cases 

constitute a lack of such "control." It is not clear whether 

there has been prior consistent enforcement by MSHA of its 

present interpretation of these provisions. The Secretary failed 

to produce evidence of any similar prior citations and noted only 

that Inspector Duty had testified that in the preceding month he 

had issued an imminent danger withdrawal order under similar 

circumstances. Mine Manager Eddie Ball testified on the other 

hand that there had never been prior enforcement action by 

MSHA comparable to the charges made herein. The latter testimony is, however, not sufficiently detailed from which it may 

reasonably be inferred that MSHA inspectors had indeed observed 

essentially the same conditions in the past and decided not to 

cite those conditions. The evidence is therefore insufficient 

in this case from which any inference may be drawn either that 

there has been prior consistent enforcement of the construction 

now taken by the Secretary or that there has been prior 

consistent non-enforcement. 

In any event I find that the policy and practices followed 

at the VP-5 Mine may also demonstrate what the parties intended 

by the term "control. 11 See Penn Allegh Coal Co., supra" VP-5 

policy regarding methane the connecting entries was described 

by Mine Manager Eddie at hearing as follows: 

Wellf my orders to all three shifts at the coal mine 

I'm at and at the previous coal mine, "At 4 percent 

[methane] you stopped the longwall. If it goes to 

4.5, or you find 4.5, you stay right there where you 

find it, you monitor it, if it continues to rise, go 

withdraw your people. If it not something you can 

see that's an immediate area that you can immediately 

do something about, then you withdraw your people." 

(Tr. 271-272, See also Tr. 252, 257, 274 and 275.) 

1037 
Within this framework I conclude that when methane 

levels reach 4 percent in the bleeder connectors there has 

been recognition in VP-5 company policy and practice that 

the methane in the gob is not adequately controlled. This 

policy and practice is entirely consistent with the Secretary's 

view that such levels of methane in the bleeder connectors under 

the facts of these cases constitute a violation of those Ventilation Plan provisions requiring the methane level in the gob to 

be controlled. This evidence therefore establishes the meaning 

intended by the parties and, considering the undisputed methane 

levels found in these cases, I conclude that there were indeed 

violations of paragraph 10 of the Ventilation Plan as charged 

on March 25 and March 26, 1992. In light of the above findings 

there is no need to also determine whether there was a violation 

in Citation No. 3800175 under the Secretary's alternate theory. 

It appears in any event that this alternate theory was withdrawn 

at hearing (Tr. 125-127). 

The violations were also "significant and substantial" 

for the same reasons that the'·Underlying conditions also 

constituted "imminent dangers." Mathies Coal Co., 6 FMSHRC 1 

(1984). see discussion, infra. See also National Gypsum 

Company, 3 FMSHRC 822 at p. 828. 

Withdrawal Orders No. 3800172 and 3800174, issued pursuant to 

section 107(a) of the Act, charge on March 25 and March 26, 1992, 

respectively, as follows: · 

The bleeder system was not functioning properly in 

that the methane content at the bleeder connectors 

from No. 2 Development through No. 6 Development 

ranged from 4.0 percentum at No. 2 Development to 

4.2 percentum at No. 6 Development •. This is a significant increase in the amount of methane that is 

normally observed in those connectors indicating 

that the methane content in these areas are [sic] 

notbeing controlled (75.316). (Order No. 3800172). 

The bleeder system was not functioning properly in 

that 4.5 to 5.2 percentum of methane was present in 

the bleeder connectors from No. 2 Development to No. 6 

Development. Permanent type stopping were [sic] being 

erected in the bleeder connectors that prevent the air 

from being coursed through the gob area as approved by 

ventilation plan for this mine. Order No. 3800174). 

Inspector Duty also noted in Order No. 3800172 that the 

"Area or Equipment" was the development off 2 East Mains Face 

Area and in Order No. 3800174 that the "Area or Equipment" was 

the "Entire Mine". 

1038 
Section 107(a) of the Act provides, in part, as follows: 

If, upon any inspection or investigation of a 

coal or other mine which is subject to this Act, 

an authorized representative of the Secretary finds 

that an imminent danger exists, such representative 

shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an 

order requiring the operator of such mine to cause 

all persons except those referred to in section 104(c), 

to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of 

the Secretary determines that such imminent danger 

and the conditions or practices which caused such 

imminent danger no longer exists. 

Section 3(j) of the Act defines "imminent danger" as the 

existence of any condition or,practioe in a coal or other mine 

which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated. 

This definition was not changed from the definition contained 

in the Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 

et ~o (1976) (Amended 1977) ("Coal Act"). The Senate Report 

for the Coal Act states that an imminent danger is present when 

"the situation is so serious that the miners must be removed 

from the danger forthwith when the danger is discovered without 

waiting for any formal proceeding or notice." s. Rep. No. 411, 

9lst Cong., 1st Sess. 89 (1969), reprinted in Senate Subcommittee 

on Labor, Committee on Labor and Public Welfare, 94th Cong., 

1st Sess. Part I, Legislative History of the Federal Coal Mine 

Health and Safety Act of 1969 at 215 (1975) (quotes Coal Act 

Legislative History). It further states that the "seriousness 

of situation demands such immediate action" because "delays, 

even of a few minutes, may be critical or disastrous. 11 See 

Utah Power and Light Company, 13 FMSHRC 1617 (1991). 

In Rochester and Pittsburgh Coal Company v. Secretary, 

11 FMSHRC 2159 (1989), the Commission set forth the analytical 

framework for determining the validity of imminent danger withdrawal orders sued under section 107(a) of the Act. The 

Commission indicated that is first appropriate for the judge 

to determine whether the Secretary has met her burden of proving 

that an "imminent danger" existed at the time the order was 

issued. The Commission also suggested, however, that even if an 

imminent danger had not then existed, the findings and decision 

of the inspector in issuing a section 107(a) order should 

nevertheless be upheld "unless there evidence that he has 

abused his discretion or authority." Rochester and Pittsburgh, 

supra, at p. 2164 quoting Old Ben Coal Corp. v. Interior Board 

of Mine Operations Appeals, 523 F.2d 25 at p. 31 (7th Cir. 1975). 

1039 
In evaluating whether an imminent danger existed in 

these cases it is important to consider the three ingredients 

necessary for a methane ignition or explosion, i.e. fuel, 

adequate oxygen and an ignition source. The record in this 

case is undisputed that methane at concentrations of 5 to 

15 percent and, in the presence of ethane, even less than 

5 percent, can provide the fuel for an ignition or explosion. 

It is further undisputed that methane concentrations in three 

of the bleeder connectors on March 25 were 4.2 percent, 

4.1 percent and 4.0 percent. Bottle samples taken that date 

also demonstrate the presence of 4.13 percent methane and 

.107 percent ethane. 

These methane concentrations also represented an 

increase over readings in the 3 to 3.5 percent range obtained 

by Inspector Duty during biweekly inspections in the previous 

three months. It was Duty's expert opinion that his readings 

on March 25 were "abnormally high" and with this increase the 

system was "overloaded." He .further opined that the methane 

was not being removed and could increase in a matter of moments 

to the explosive range. These findings are consistent with the 

VP-5 policy and practice to close down longwall operations when 

methane in the bleeder connectors reaches 4 percent. See 

discussion, supra. 

It is undisputed that at least 12 percent oxygen is also 

necessary for a methane ignition. It is further undisputed 

that bottle samples indicated that on March 25, 1992, there 

was 20.1 percent oxygen present in the 6 Development No. 1 

Connector. Finally, according to the undisputed testimony 

of the Secretary's expert on mine ignitions and explosions, 

Cleat Stephans, ignitions can be triggered from frictional 

heat from rocks sliding against one another during a roof fall. 

Moreover, roof falls are expected to occur within, and on the 

fringes of, the gob. While there is additional record evidence 

of other ignition sources disputed by VP-5, this undisputed 

source, i.e., frictional heat, is clearly sufficient in itself 

to complete the equation for an imminent danger. 

In regard to one of these disputed ignition sources, the 

inspector testified that he was concerned, in issuing the orders, 

that the building methane would back up into the longwall face 

where he believed other ignition sources existed. While 

turned out that on March 25 the longwall had already been shut 

down, the operator was under no binding restraint preventing 

it from restarting the longwall absent Inspector Duty's order. 

The operator's policy of shutting down the longwall when methane 

concentrations at the bleeder connectors reach 4 percent is also 

consistent with Inspector Duty's concerns that these methane 

concentrations indicated that the ventilation system was "overloaded" and that methane would back up into an operating longwall 

1040 
face with its recognized potential ignition sources. In any 

event, I find that even within the framework of the undisputed 

evidence, there was clearly an imminent danger as charged in 

Order No. 3800172. 

Additional conditions existed at the time Order 

No. 3800174 was sued that provide even further support 

for the Inspector's finding therein of an imminent danger. 

In his March 26 order the inspector noted that methane was 

present in the bleeder connectors at a 4.5 to 5.2 percent 

concentration. Bottle samples also confirmed the presence 

of 4.48 percent methane with .113 percent ethane. While 

Contestant does not dispute the existence of 5.2 percent 

methane at this time it claims that this reading was obtained 

after the order was already issued. The record however does 

not support this claim. It is apparent from the testimony of 

Inspector Duty and the face of the order itself, that while he 

believed he already had sufficient evidence based on his methane 

readings at the No. 4 Development to issue an imminent danger 

order, the order itself was not issued until he had also obtained 

a 5.2 percent methane reading at the No. 6 Development No. 1 

Connector (Government Exhibit No. 15; Tr. 77-78). In addition, 

Duty noted that a crew of miners had been working in the area 

with, among other things, metal hammers and axes. While those 

miners were having lunch at the time he issued his order it is 

reasonable to expect that they would have resumed working with 

these metal tools -- a high potential ignition source -- in the 

very near future. See Utah Power and Light Company, 13 FMSHRC 

1617 at p. 1622 (1991). 

Contestant also mildly protests in a footnote to 

its Inspector Duty presented no evidence that there 

was time sufficient oxygen for methane ignition, a bottle 

samp taken during his March 26 inspection showed the presence 

of 18.89 oxygen at the "bleeder connector No. 2 Entry of 

4 Development" (Government Exhibit No. 14). The clear potential 

source ignition or explosion from miners working with metal 

tools in presence of sufficient oxygen and explosive levels 

of methane, without question, constitute an imminent dangero 

Order No. 3800174 must accordingly be upheld. 

1041 
ORDER 

Citation Nos. 3800173 and 3800175 and Order Nos. 3800172 

and 3800174 are AFFIRMED and the contests of said citatiop.i .. s and 

orders are DISMISSED. /j I~• ~; n ; .. ( l ~ r 

v: ~1 I \ t • ! ' \·.' H 

. ' \/))~/\ \ \ f \AJJ-..--- G.:iry Me~.j_ck , \.J 

Administl~ative Law\Judge 

703-756-',6261 \\ 

'\ Distribution: 

Timothy M. Biddle, Esq. and Thomas A. Stock, Esq., Crowell and 

Moring, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004 

(Certified Mail) 

Robert Wilson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

/lh 

1042 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STONEWAY CONCRETE, 

Respondent 

JUN 2 3 \992 

. . 

. 

. 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-640-M 

A. C. No. 45-03180-05506 

Black River Site 

ORDER OF DISMISSAL 

Before: Judqe Merlin 

On March 6, 1992, an order to show cause was issued directing the operator to file an answer to the penalty proposal. On 

March 20, 1992, the operator filed a letter stating that a 

settlement had been reached in this case on November 15, 1991. 

The operator also enclosed a copy of a letter dated November 15, 

1991, addressed to the Seattle Solicitor confirming the settlement agreement and a copy of a check for $131.50 the settlement 

amount. On April 13, 1992, an order was issued accepting the 

operator's March 20 letter as a response to the March 6 show 

cause order and directing the Solicitor to file the settlement 

motion or show cause why the case should not be dismissed. The 

file'contains the return receipt showing that the Solicitor 

received a copy of the April 13 order on April 15, 1992. The 

Solicitor has failed to respond to the April 13 order. 

This Solicitor routinely fails to respond to show cause 

ordersu orders to submit information and other orders issued by 

the Chief Administrative Law Judge. In virtually all his cases, 

it has been necessary to repeatedly remind him of orders which 

require him to take action. As I have stated on prior occasions, 

the Office of the Chief Administrative Law Judge is simply too 

busy to keep calling and writing this Seattle Solicitor. In any 

eventu these reminders are of no effect. The Solicitor's failure 

to respond here is at one with his constant and continual disregard of duly issued orders. In this the Seattle Solicitor stands 

alone because all other Solicitors comply with commission orders. 

His persistent dereliction of duty, of which this case is but one 

example, cannot be countenancedo 

Only the Commission can approve a settlement of a penalty 

that has been contested under section 105(a) of the Mine Act. 30 

§ 820(k). In light of the Solicitor's failure to respond to the 

show cause order dated April 13, 1992, this penalty petition must 

be dismissed. 

1043 
Accordingly, it is ORDERED that the this case be DISMISSED. 

~----~ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Ernest Scott, Esq., Office of the Solicitor, U. S. Department of 

Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 (Certified Mail) 

Mr. Ike Brown, Stoneway Concrete, 9125 10th Avenue South, Seattle, WA 98108 (Certified Mail) 

Douglas White, Esq., Counsel Trial Litigation, Office of the 

Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Hand Delivered) 

/gl 

1044 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STONEWAY CONCRETE, 

Respondent 

~JUN 2 3 1992 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-444-M 

A. C. No. 45-03180-05505 

Black River Quarry 

ORDER OF DISMISSAL 

Before: Judge Merlin 

on May 22, 1991, the operator's request for a hearing was 

received by this Commission for docketing. 

On November 13, 1991, my law clerk telephoned the Seattle 

Solicitor reminding him to file the penalty petition which he 

promised to do, but did not. on March 6, 1992, the Commission's 

Docket Office again telephoned the Solicitor but he did nothing. 

Finally, on April 9, 1992, an order was issued directing the 

Solicitor to show cause why this case should not be dismissed for 

failure to file a penalty proposal. The file contains the return 

receipt card showing that the Solicitor received a copy of this 

order on April 14, 1992. The Solicitor has failed to respond. 

This case is now over a year old and the Commission has heard 

nothing from the Solicitoro 

The Seattle Solicitor in this case routinely fails to 

respond to show cause ordersv orders to submit information and 

other orders issued by the Chief Administrative Law Judge. It 

has been necessary to repeatedly remind him of orders which 

require him to take actiono But even these reminders are of no 

effecto As I have stated on prior occasions 1 the Office of the 

Chief Administrative Law Judge is simply too busy to keep calling 

and writing this Seattle Solicitoro In his constant and continual disregard of duly issued orders, this Solicitor stands alone. 

His persistent dereliction of duty cannot be countenancedo 

In light of the foregoing, it is ORDERED that this case be 

DISMISSED" 

Paul Merlin 

Chief Administrative Law Judge 

1045 
Distribution: 

Ernest Scott, Esq., Office of the Solicitor, U. s. Department of 

Labor, 1111 Third Avenue, suite 945, Seattle, WA 98101 (Certified Mail) 

Mr. Ike Brown, Stoneway Concrete, 9125 10th Avenue south, Seattle, WA 98108 (Certified Mail) 

Douglas White, Esq., Counsel Trial Litigation, Office of the 

Sol~citor, U. s. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Hand Delivered) 

/gl 

1046 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DEATLEY COMPANY, 

Respondent 

. . 

. . 

: 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-5-M 

A. C. No. 10-01658-05505 

Plant #1 

ORDER OF DISMISSAL 

Before: Judge Merlin 

on October 1., 1990, the operator's request for a hearing was 

received by this Commission· for docketing. 

On January 24, 1992, the Commission's Docket Office telephoned the Seattle Solicitor reminding him to file the penalty 

petition which he said he would do, but did not. on March 6, 

1992, the Commission's Docket Office again telephoned the Solicitor but he did nothing. Finally, on April 29, 1992, an order was 

issued directing the Solicitor to show cause why this case should 

not be dismissed for failure to file a penalty proposal. The 

file contains the return receipt card showing that the Solicitor 

received a copy of this order on May 4u 19920 The Solicitor has 

failed to respondo This case is well over a year old and the 

commission has heard nothing from the Solicitor. 

The Seattle Solicitor in this case routinely fails to 

respond to show cause orders, orders to submit information and 

other orders issued by the Chief Administrative Law Judge. It 

has been necessary to repeatedly remind him of orders which 

require him to take action. But even these reminders are of no 

effect. As I have stated on prior occasions, the Office of the 

Chief Administrative Law Judge is simply too busy to keep calling 

and writing this Seattle Solicitor. In his constant and continual disregard of duly issued orders, this Solicitor stands alone. 

His persistent dereliction of duty cannot be countenanced. 

In light of the foregoing, it is ORDERED that this case be 

DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

1047 
Distribution: 

Ernest Scott, Esq., Office of the Solicitor, u. s. Department of 

Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 (Certified Mail) 

Mr. John Hjaltalin, Division Manager, DeAtley Company, 3665 Snake 

River Avenue, P. o. Box 648, Lewiston, ID 83501 (Certified 

Mail) 

Douglas White, Esq., Counsel Trial Litigation, Office of the 

Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Hand Delivered) 

/gl 

1048 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

JUN 231992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KLAMATH PACIFIC CORPORATION, 

Respondent 

. . 

0 

. 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 91-515-M 

A. C. No. 35-00490-05509 

Stukel Mt. Crusher & Wash 

Plant 

ORDER OF DISMISSAL 

Before: Judge Merlin 

This case is before me pursuant to the Commission's remand 

dated April 21, 1992. 

On April 22, 1992, I issued an order instructing the parties 

to confer about possible settlement and directing the Seattle 

Solicitor to advise me within 21 days as to the results of these 

discussions. The Solicitor did not respond. Therefore, on 

May 18, 1992, an order was issue directing the Solicitor to 

advise whether the case could be settled or show cause why it 

should not be dismissed. The file contains the return receipt 

card showing that the Solicitor received the show cause order on 

May 2lp 19920 once again, the Solicitor has failed to respond. 

The Seattle Solicitor in this case routinely fails to 

respond to show cause ordersu orders to submit information and 

other orders issued by the Chief Administrative Law Judge. It 

has been necessary to repeatedly remind him of orders which 

require him to take action. But even these reminders are of no 

effecto As I have stated on prior occasionsu the Office of the 

Chief Administrative Law Judge is simply too busy to keep calling 

and writing this Seattle Solicitoro In his constant and continual disregard of duly issued orders, this Solicitor stands alone. 

His persistent dereliction of duty cannot be countenanced. 

In light of the foregoing, it is ORDERED that the penalty 

petition in this case be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

1049 
Distribution: 

Ernest Scott, Jr., Esq., Office of the Solicitor, U. s. Department of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 

(Certified Mail) 

Mr. Ron Stewart, Safety Officer, Klamath Pacific Corp., 2918 

Edison Avenue, Klamath Falls, OR 97603 (Certified Mail) 

Douglas White, Esq., Office of the Solicitor, U. s. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

/gl 

1050 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COM MISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DARBET, INCORPORATED, 

Respondent 

) CIVIL PENALTY PROCEEDING 

) 

) Master Docket No. 91-1 

) Docket No. WEVA 91-1659 

) A.C. No. 46-06850-035490 

) 

) Mine No. 1 

) 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

On June 2, 1992, the Secretary filed a motion to approve 

a settlement between the parties in the above case. The case 

includes three alleged violations of 30 C.F.R. § 70.209(b), which 

was originally assessed at $1,000. The Secretary continues to 

assert that the violation resulted from a deliberate act, which 

is denied by the mine operator. The degree of negligence is 

disputed, and the parties agree to the reduction in the total 

penalties from $3,000 to $2,400. 

I have considered the motion in the light of the criteria 

in section llO(i) of the Act and conclude that it should be 

approvedo 

Accordingly the settlement motion is APPROVED" The 

operator ordered to pay within 30 days of the date of this 

order the sum of $2,400 for the violation charged in this 

proceeding. 

Di tribution; 

. .-, "' I 

#£UE #l:i~d:_/vid'--· U. James A. Broderick 

Administrative Law Judge 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

(Certified Mail) 

Darwin Rowe, Darbet, Incorporated, Post Office Box 27, Iaeger, WV 

24844 (Certified Mail) 

/fb 

1051 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG Pl KE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 4 1992 

MARVIN DAVID WARREN, 

Complainant 

DISCRIMINATION PROCEEDING 

v. Docket No. KENT 91-1036-D 

MSHA Case No. MADI CD 91-01 

WEBSTER COUNTY COAL CORPORATION,: 

Respondent Retiki Mine 

ORDER OF DISMISSAL 

Before: Judge Weisberger 

On June 22, 1992, Complainant filed a Motion to Withdraw 

Complaint indicating that he has resolved his differences with 

Webster County Coal Corporation. 

Accordingly, the Motion is Granted. This case is ordered 

dismiss.ea with prejudice. 

Distribution~ 

l_---1 

vram isberger 

Administrative Law Judge 

Mr. Marvin David Warren, Box 7209, Route 1, Highway 145, Corydon, 

KY 42406 (Certified Mail) 

Susan E. Chetlinr Esq., Webster County Coal Corporation, 2525 

Harrodsburg Road, Suite 300 Lexington, KY 40504-3359 (Certified 

1viail 

J. Michael Klise, Esq., Crowell & Moring, 1001 Pennsylvania Ave., 

N.W. Washingtonr D.C, 20004-2595 (Certified Mail) 

nb 

10 52 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266 I FTS 564-5266 

JUN 2 61992 

MANSEL JOHN SAFFELL, 

Complainant 

. . DISCRIMINATION PROCEEDING 

Docket No. WEST 90-174-DM 

v. 

WE MD 90-07 

NATIONAL CEMENT COMPANY 1 ~ 

Respondent 

DECISION 

Appearances: James E. Millar;· Esq., Bakersfield, california, 

for Complainant; 

Before: 

c. Gregory Ruf fenach, Esq., SMITH, HEENAN & ALTHEN, 

Washington, D.C., 

for Respondent. 

Judge Morris 

This case involves a discrimination complaint filed by 

Mansel John Saffell against Respondent National Cement Company of 

california (hereafter 11 NCC11 ) /1 pursuant to the Federal Mine Safety 

and Health Act of 19770 30 UoSoCo § 801 et~ (the UIAct"L 

The applicable portion of the Mine Act 0 Section l05(c)(l) ~ 

in its pertinent portion provides as follows~ 

Discrimination of interference prohibited~ complaint0 investigation~ determination 0 hearing 

No person shall discharge or in any manner 

discriminate against or cause to be discharged 

or cause discrimination against or otherwise 

interfere with the exercise of the statutory 

rights of any miner, representative of miners 

or applicant for e:nployment in any coal or other 

mine subject to this [Act] because such miner, 

representative of miners or applicant for anployment has filed or made a complaint under or 

related to this [Act], including a complaint 

notifying the operator or the operator's agent, 

or the representative of the miners at the coal 

or other mine of an alleged danger or safety or 

health violation in a coal or other mine ••• 

30 u.s.c. § 815(c)(l). 

1053 
Applicable case Law 

In order to establish a prim.a facie case of discrimination 

under Section 105(c) of the Act, a complaining miner bears the 

burden of production and proof to establish (1) that he engaged 

in protected activity and (2); that the adverse action complained 

of was motivated in any part by that activity. Secretary on 

behalf of Pasula v. Consolidation Coal Company, 2 FMSHRC 2768 

(1980), rev'd on other grounds sub nom.; Consolidation Coal 

Company v. Marshall, 663 F.2d ·1211 (3d Cir. 1981)7 Secretary on 

behalf of R.obinette v. United Castle Coal Company, 3 FMSHRC 803 

(1981); Secretary on behalf of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on behalf of Chacon v. 

Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1982). The operator 

may rebut the prima facie by showing either that no protected 

activity occurred or that the adverse action was in no way 

motivated by protected activity. If an operator cannot rebut the 

prima facie case in this mann.er, it may nevertheless affirmatively defend by proving that it was also motivated by the miners' 

unprotected activities alone. The operator bears the burden of 

proof with regard to the affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not shift from the Complainant. Robinette, supra. 

See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 198); and Donovan V:-Stafford Construction Company, No. 83-1566 D.C. Cir.~~ 

(April 20, 1984) (specifically approving the Commission's PasulaRobinette test). See also NLRB v. Transportation Management Corporation, 462 U.S. 393, 397-413 (1983) where the Court approved 

the NLRB's virtually identical analysis for discrimination cases 

arising under the National Labor Relations Act. 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidenceu illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508u 2510-11 (Novo 1981) v rev'd on other grounds sub nom. Donovan Vo Phelps Dodge Corpo 709 F.2d 86 (D.C. Cir. 1982)u Sammons 

. Mine Services Co. 9 6 FMSHRC 1391 9 1398-99 (June 1984). As the 

Eighth Circuit analogously stated with regard to discrimination 

cases arising under the National Labor Relations Act in NLRB v. 

Melrose Processing Co~u 351 F.2d 693u 698 (8th Cir. 1965)~ 

It would indeed be the unusual case in which the 

link between the discharge and the [protected] 

activity could be supplied exclusively by direct 

evidence. Intent is subjective and in many cases 

the discrimination can be proven only by the use 

of circumstantial evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the 

[NLRB] is free to draw any reasonable inferences. 

1054 
Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity1 

coincidence in time between the protected activity and the adverse action complained of; and disparate treatment of the 

complaining miner by the operator. 

Procedural History 

on January 22, 1992, a limited hearing took place in 

Ontario, california. The purpose of the hearing was to determine 

whether the protected activities alleged in the complaint were 

investigated by the Secretary of Labor as required by the Act. 

As a result of the evidence received at the hearing, the 

Judge, on January 31, 1992, issued an order ruling that Complainant had complied with the Act and the Commission ruling in Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (April 1991) .--

Subsequently, after notice to the parties, a hearing on the 

merits was held in Bakersfield, California, on March 31, 1992. 

Both parties filed post-trial briefs. 

Background 

MANSEL JOHN SAFFELL began working at the Lebec, California, 

plant in 1980. At that time, the plant was owned by General 

Portland. The plant was later purchased by LaFarge and then by 

NCC. The plant produces cEment powder. (Tr. 54). 

Mro Saffell was hired by General Portland as a production 

foremano He continued to work in that capacity both for LaFarge 

and for NCCo In generalv his job involved the supervision of 

work crews engaged in the production of cement. He conducted 

inspections, and was responsible for reporting malfunctions and 

safety conditions at the plant. (Tr. 54, 55) .. 

Prior to his Employment with General Portland, Mr& Saffell 

had worked for Penn-Dixie, also a cement production company, for 

eight or nine years. He had received specialized safety training relating to the cEment industry and was awarded an MSHA instructorgs training certificate. '!his certificate empowered him 

to train other Employees in how to give safety dEmonstrations and 

conduct safety SEminars, etc. {Tr. 56, 57). 

While the plant was owned by General Portland, Mr. Saffell 

was directly involved in maintaining safety, serving as Chairman 

of the communications safety committee for two or three years. 

He continued in this capacity when LaFarge bought the plant. 

1055 
After NCC purchased the plant in 1987 or 1988, Mr. Saffell 

noticed a decline in the emphasis on monthly executive safety 

council meetings, which involved both hourly and salaried employees. The safety council wrote up safe work procedures and discussed various safety items, including potentially unsafe conditions and remedies. Safety awards were given for no-lost-time 

accidents, no doctor-reported incidents, etc. (Tr. 57, 59). 

All of these safety functions ceased when NCC took over. In 

fact, Mr. Saffell received a grievance from an hourly employee 

complaining about the company's failure to hold monthly safety 

meetings. (Tr. 58-60; Ex. C-4}. 

After NCC took over, Mr. Saffell noted a gradual neglect in 

maintaining the plant in a safe condition. NCC stopped the previous practice of assigning an electrician to work the 3 p.m. to 

11 p.m. and the 11 p.m. to 7 a.m. shifts. For some reason, NCC 

wanted a lot of lights turned off at night. In particular, the 

lighting situation began to deteriorate to the point where it became extremely dangerous to work at the plant at night. 

(Tr. 60) • 

In May of 1989, Mr. Saffell suffered an industrial injury 

while digging in a clinker discharge tunnel at night. (Tr. 61; 

Ex. C-5). The lights in the tunnel had not been maintained and 

did not work. After Mr. Saffell cleared the discharge tunnel, a 

hot clinker fell on the ground. Because qf the lack of lighting, 

he could not see that he was standing on the hot clinker, which 

burned his feet. (Tr. 61, 6 2) • 

Mro Saffell tried to get NCC to repair the safety defects at 

the plant by submitting written requests for maintenance worku 

known as Job Request Tickets ( 01 JRTs 11 ) and work orders. (Tr o 62)" 

Copies of various undated JRTs and work orders are in evidence 

as Complainantgs Exhibit 6)0 However, he found that some of the 

necessary work was not being done all the time. (Tr. 67, 68, 

101) 0 

Protected Activity 

Mro Saffell attempted to solve the lighting problems at NCCo 

The JRTs and work orders were assigned to an electrician. 'Ihe 

problems that required planning were turned in to Jess Kemple of 

the electrical department. (Tr. 67)o '!he work was not done all 

of the time. (Tro 67-68). 

On July 12, 1989, a daily planning meeting (about 6:25 a.m. 

to 7 a.m.) took place. Present were Byron McMichael (plant manager), Bill Russell (chief electrician}, Jim Kemple (electrical 

1056 
foreman), George Watson (maintenance planner), Carl Hawkins 

(repair foreman), John Simms (maintenance planner), Phil Messer 

(production manager), Wally Bingham (repair foreman), and 

Chuck Luesada (labor foreman). (Tr. 68-69). 

Mr. Saffell asked Jim Kemple if the work orders were going 

to be done. He didn't answer. Mr. Saffell then said that if the 

company wasn't going to repair the poor lighting around the plant 

he (Saffell) would get an outside agency, namely MSHA to repair 

them. (Tr. 69-70). 

The next day at a similar meeting, the same men were present. 

Mr. Saffell brought up the work orders and Mr. Kemple said they 

were not going to be taken care of. (Tr. 70). Mr. Saffell said 

if they were not going to be taken care of, he would make a 

report to MSHA. (Tr. 71) • 

Mr. McMichael and Mr. Messer made no comment on the subject. 

C Tr. 71). There was no reacti.on from anyone in the room. 

(Tr. 7 2) • 

The following day there was another meeting and when 

Mr. Kemple said the conditions would not be corrected, Mr. Saffell went to his office and called Bill Willson (Supervisor of 

MSHA, San Bernardino Office). (Tr. 72) Mr. Saffell also filed a 

written complaint with MSHA. 'Ihe written complaint dated July 

15, 1989, addressed the "lighting situation." The complaint 

generally recites Mr. Saffell's testimony. (Ex. C-1). 

Concerning the discussion of the lighting conditions Mr. McMichael described MrG Saffell as being hostile and volatile to 

Mro Kemple, In additionu Mro Saffell was dealing with Mro Kemple 

without the lattergs boss being presento (Tro 14u 136) o In any 

eventu Mro McMichael talked to Mro Russell (Mro Kempleijs boss)o 

Mro Russell showed Mro McMichael what they were working on and he 

was satisfied. (Tr. 136). Mr. McMichael felt this was the wrong 

area to address Mr. Saffell's comments. He felt Mr. Saffell 

should have seen him and the electrical manager so they could 

talk privately in detailo (Tro 136-138)0 

It is clear that under the Mine Act~ Mr. Sa ff ell had a statutory right to voice his concern about safety matters and to make 

safety complaints to MSHA. 

In addition, on October 16, 1989, Mr. Saffell also wrote to 

Mr. McMichael, the NCC plant manager, complaining about his assignments as relief foreman. Since this letter refers to 

Mr. Saffell's prior complaints about inadequate lights, I consider it also to be a protected activity. 'lbe letter {Ex. 12) is 

also part of the Commission file. It reads, in part, as follows: 

1057 
At this particular time I am assigned to Ron 

Gibson's shift while he is filling in for Jim 

Young. Why? If I'm the Relief Foreman, then 

I'm the Relief Foreman. Why do I get the "junk 

shift" and not the "gravy." When I was the 

Relief Foreman the last time, I filled in for 

Jim Young, and so did Doshier when he worked 

Relief so I know it's not because of past practice. I accepted this. situation at first, but 

I kept wondering why. Am I going to be assigned 

to just the shifts that Gibson doesn't want, or 

what? I never gave it any thought until a couple 

of the salaried people made the comment that 

this is revenge for complaining about the lights. 

They were joking when they said it, but it got 

me to thinking. 

Direct Evidence of Discrimination 

As a threshold matter, it is apparent that the record fails 

to disclose any direct evidence of discrimination as to Mr. Saffell 's protected activity. However, direct evidence is seldom 

seen.. Accordingly, it is appropriate to consider any circumstantial indicia that might be involved in the case. 

Knowledge of Protected Activity 

NCC admits it knew of Mr. Saffell's safety complaints. The 

plant manager, Mr. McMichael, was present at the planning meeting 

when Mro Saffell confronted Mro Kemple. (Tro 168-176)0 

Hostility to Protected Activity 

There was some hostility shown by the electrical manager to 

Mro Saffellu but NCC's management showed no hostility whatsoever 

to himo The statements by Mr. Saffell were treated matter-offactlyo (Tro 72u 85-86u 114u 117)0 Compare Hicks v. Cobra 

Mininge Inc.r et al.u 12 FMSHRC 563, 568 (Wersberger, J.). 

The failure of management to manifest hostility, displeasureu or anger appears to confirm Mr. McMichael's testimony that 

NCC treats complaints to federal agencies as an exercise of 

important statutory rights and does not discriminate against 

employees who exercise such rights. (Tr. 150-151). 

1058 
Coincidence in Time 

On October 16, 1989, Mr. Saffell wrote to Mr. McMichael. 

The letter principally complains about job assignments to 

Mr. Saffell as a relief foreman. However, the lighting conditions were mentioned and I consider the letter to be a protected 

activity. such activity and the protected activity in July 1989 

bear little coincidence in time to adverse action in December 

1989. In Larry Cody v. Texas Sand and Gravel Company, 13 FMSHRC 

606, 668 (1992), it was held that adverse action was not motivated by a two-week-old safety complaint~ See also Ernie L. Bruno 

v. Cyprus Plateau Mining Corporation, 10 FMSHRC 1049, 1055 

(1988). 

Disparate Treatment 

Mr. Saffell asserts he wa.s subject to disparate treatment 

when he left work. Specifically, he claims other employees have 

missed work for extended periods without permission and have not 

been subject to adverse action. (Tr. 93, 94). In support of the 

disparate treatment claim, Mr. Saffell introduced into evidence 

the employment information concerning three hourly employees, 

namely Robinson, Abbott, and Dunlop. (Ex. C-11, C-12). 

However, employment actions relating to hourly employees 

Robinson, Abbott, and Dunlop are regulated by terms of the collective bargaining agreement. (Tr. 132-134, 150). 'lbese rules 

do not apply to management level employees such as Mr. saffell. 

(Tr. 134, 140)0 In any event, the employment file of Mr. Dunlop 

received in evidence indicates the employee was discharged for 

his attendance-related problems o Further, the Abbott personnel 

file, also received in evidence, involved alleged racial slurs 

against a Ms, Gloria Robinson. Like Mr. Dunlop's, Ms. Robinson's 

employment is governed by the terms of the collective bargaining 

agreement. In any event, Ms. Robinson returned to work the fol- · lowing day with a reasonable explanation for having left work. 

The circumstantial evidence frequently relied upon fails to 

establish an inference of discriminatory conduct by NCC. 

Events Involving Job Assignments 

After making his complaint to MSHA, Mr. Saffell noticed certain changes i.n his job assignments that he attributed to the 

fact that he had made the complaint. Mr. Saffell was working as 

a relief foreman when he noticed the changes. 

1059 
As Mr. Saffell explained, the advantage of the relief foreman's job is that when you are not filling in for someone from 

production, which involves night and swing shifts, you normally 

work a Monday to Friday schedule, .with weekends off. When Phil 

Messer offered Mr. Saffell the relief foreman's position, these 

advantages were pointed out to him. When he had previously 

served as a relief foreman, he worked a Monday to Friday schedule 

when he was not filling in for someone. (Tr. 74-77). 

The first example he gave of adverse changes in his job assignment as relief foreman concerned the procedure for covering a 

shift when a foreman called in sick. The normal procedure was 

for the foreman on the preceding shift to work an extra four 

hours and the foreman on the following shift to report in four 

hours early, thus covering the eight-hour shift of the absent 

foreman. After Mr. Saffell complained to MSHA, the company required him to report for work to cover the missing shift. He 

testified this was "not the $,t.andard procedure at all." 

( Tr • 7 6 , 7 7 ) • 

A further example of adverse job changes concerned working 

holidays. Normally, a relief foreman had holidays off, absent 

special circumstances, if he was not filling in for someone on 

vacationo After Mr. saffell complained to MSHA, the company 

required him to work on a holiday and gave another employee, who 

should have worked the holiday, the day off. As Mr. Saffell 

testified, "this just wasn't the norm." (Tr. 7 7-7 8) • 

An additional example concerned the company's failure to 

assign Mr. saffell to cover the vacation of the foreman assigned 

to the primary guarry o When Mr o Saffell had worked as relief 

foreman several years beforeu he had been assigned to the quarry 

to cover that fore:nanYs vacationo After he complained to MSHAu 

instead of being assigned to the quarry, where he would have 

worked ten-hour days, Monday through Thursday, he was assigned to 

the primary crusher, which involved, among other things, working 

swing and graveyard shifts. The company gave the more desirable 

quarry assignment to the primary crusher foremano As Mro Saffell 

explainedv no special expertise was required for him to fill in 

at the quarryo (Tr. 78u 79 11 187). 

As plant manager, Mr. McMichael would be in a better position than Mr. saff ell to know why assignments were made. 

Mr. McMichael testified that in the fall of 

1989 he moved production foreman Ron Gibson up 

to the quarry to cover for vacationing Jim Young. 

1060 
This transfer was made, on the recommendation 

of Gar Summy, because Mr. Gibson had more quarry experience. At the time, Gar Summy was a 

quality control quarry raw materials manager. 

Mr. Saffell had no quarry experience and 

Mr. Gibson would be better suited to supervise 

the quarry crew. A relief foreman would not 

automatically move to fill in for a quarry 

foreman. CTr. 145, 146). 

The last example concerned Mr. Saffell's permanent assignment to the dust dump. Normally, when a relief foreman was not 

covering for another foreman on vacation, for example, he would 

help out with assignments in the maintenance department. After 

Mr. Saffell complained to MSHA, he was permanently assigned, when 

not covering a vacation, to spend his eight-hour shift watering 

the dust in the dust dump. (Tr. 79, 80). 

To Mr. Saffell's knowledge, no one had ever been permanently 

assigned to spend his entire shift watering the dust. He testified it took about an hour out of a regular shift to water the 

dust. (Tr. 80, 186). As the company's witness, Mr. Gibson 

stated "it doesn't take eight hours to water the dust down. You 

set the sprinkler, you can go off for two or three hours, do your 

other routine job checks that you normally do and come b:lck." 

Mr. Gibson had never been ordered to stay at the dust dump for 

eight hours. He agreed that the dust dump assignment is not 

sought after. {Tr. 129, 130). 

After complaining to MSHAu Mro Saffell was forced to spend 

all day at the dump andu as he statedu air was to move the hose 

all the timev keep it goingu keep it moving all the time. By the 

time I would get it set up in one placeu they wanted it to run 

for 15-20 minutes and then moved to another one, and then moved 

to another one. '!his wasnwt just for that one day, this was when 

I was not covering a shifto 11 (Tro 186). After a time of dragging the hosev Mr. Saffell hooked up a device on his personal 

pick-up so he could move the hose around without having to drag 

i to (Tr • 8 0 } o 

Mr. McMichael, who would know why assignments 

are made, indicated the assignment to the dust 

dump was due to increased environmental awareness at the time. (Tr. 148-149). 

1061 
On October 16, 1989, Mr. Saffell wrote a letter to 

Mr. McMichael describing the manner in which the company was 

discriminating against him in job assignments. (Tr. 84; Ex. 

c-7). Mr. McMichael claims to have directed one or two other 

company employees to respond to Mr. Sa ff ell's letter, but he 

admitted he did not know if they had done so. Mr. Saffell never 

received any response from the company to his complaints about 

such discrimination. (Tr. 85, 177, 186). 

Mr. Saffell also noticed several other changes at work following his complaint to MSHA. His authority began to be questioned, especially within the electrical department. He was told 

they didn't work for him. His instructions to the electricians 

were ignored and the electrical foreman, Mr. Kemple, did nothing 

about it. (Tr. 80, 81). Mr. Saffell gave an example involving 

his attempt to call out an electrician to come to the plant. He 

tried to reach the employee three times by phone, without success. 

The electrician claimed Mr. Saffell had not called him. Mr. Saffell believed the company had·a monitoring device hooked to the 

phone line that would prove he had made the calls. (Mr. McMichael refused to check the phone log and refused to back Mr. 

Saffell's authority in the dispute. 

At the hearing, Mr. McMichael did not doubt that Mr. Saffell 

made the telephone call but he stated the phone monitor was not 

hooked up. (Tr. 81, 138). 

According to Mr. McMichael, the telephone call 

incident involved one of several occasions when 

he was less than satisfied with Mr. Saffell's 

performance as a management employee. When this 

incident aroseu Mro Saffell was very hostile, 

olentu and abrasiveo A meeting was held to 

discuss the problem. (Tr. 81, 138). Present 

at the meeting were Mr. McMichael, Mr. Russell 

(electrical supervisor manager), Mr. Kemple 

(electrical supervisor)u and Tony Burn (instrument man)o Mro McMichael felt the meeting 

should have been handled in a pleasant, formal, 

and professional environment. Instead, Mr. Saffell became very hostile, ran out of the room 

sayingv ~You haven1 t heard the end of this." 

Mro McMichael stated he wouldn 9 t accept such 

behavior from his children. (Tr9 139)0 

1062 
Discussion 

Under different circumstances, the described adverse job 

assignments might be considered the evidence of discriminatory 

intent. However, Mr. Saffell was a relief foreman. It is uncontroverted that he was to fill in "for vacation and/or extended 

absences." The ve+y nature of his job as relief foreman indicates Mr. Saffell could have anticipated many changes in his work 

assignments. As he stated in his letter dated January 10, 1991 

(Ex. 17), as relief foreman he covered for the following people: 

Foreman 

Chuck Luesada 

Jim Young 

All Maintenance 

Foreman 

All Production 

Foreman 

Ray McPherson 

Assignment 

Finish Silo/Yard 

Foreman 

"''•· 

Quarry/Primary 

Foreman 

Ma in tenance 

Production 

Garage Foreman 

Scheduled Shift 

7 a.m. - 3 p.m. 

Monday - Friday 

7 a.m. - 5:30 p.m. 

Monday - Thursday 

7 a.m. - 3 p.m. 

Monday - Friday 

Various Shifts 

7 a .m. - 3 p .m. 

Monday - Friday 

In sum 17 I credit Mro McMichael 0 s testimony that there was 

nothing unusual nor abnormal about Mr. Saffellus jobso (Tr. 149). 

Further, I credit Ron Gibson, the NCC production foreman and 

a relief foreman himself, who indicated it is the company's discretion as to what the relief foreman doeso 

Mro Saffell further described the company 1 s attitude after 

he complained to MSHA 17 "It was like I was there but I didn't 

really exist. 01 The company 1 s treatment of Mr .. Saffell finally 

forced him to seek the help of Oro Kellawan. (Tr. 84, 86; Ex. 

C-8)0 Dre Kellewan diagnosed Mr~ Saffell as suffering from 

stress due to the events at work. 

1063 
Further Discussion and Findings 

The evidence of job assignments fails to establish any discriminatory intent by NCC after Mr. Sa.ffell filed his MSHA 

complaint. 

As a threshold matter, NCC did not unilaterally appoint 

Mr. Saffell to the relief foreman job. Rather, Phil Messer 

offered him the position. (Tr. 77>. 

A portion of the evidence concerns what Mr. Saffell considers to be adverse job assignments while he was serving as the 

relief foreman. It is true that different jobs were assigned. 

However, the very nature of the relief foreman's job is to cover 

for many foremen who may be on vacation. (See Ex. 17 for list of 

individuals for whom the relief foreman could substitute.) As 

Mr. Saffell himself stated: "When you work the relief job, when 

you are not assigned as vacation relief, you work Monday to Friday, weekends and holidays off, unless special circumstances." 

(Tr. 77). "I covered the vacations and the production, and I 

covered them in the other areas. 11 (Tr. 7 8). There were two_ 

other relief foremen and 11 we were more or less assigned daily to 

whatever come up that needed to be taken care of. 11 (Tr. 7 8, 7 9) • 

In sum, no credible evidence supports the view that NCC 

discriminated against Mr. Saffell in job assignments when he was 

the relief foreman. 

Events of December 27, 1989 

Things finally came to a head on December 2 7 u 198 9" 

Mro Saff had been away from work for several days due to the 

illness and death of his wife 1 s mother. On December 27, he was 

ordered to attend a meeting with Mr. McMichael and another company e:nployeeu Phil Messer. Mr. Saffell recounted what happened 

at the meeting as followsg 

I sat down and Phil made the comment, "I am 

sorry to hear about your mother-in-law--my mother 

in-law had passed away--I am sorry to hear about 

your mother-in-law, you should have gotten in 

touch with me directlyo" I said, "Phil, I tried 

about 12 different times to get a hold of you • " 

And Byron jumped in and said, "Bullshit, you know 

where we are all the time, you could have gotten 

a hold of us at any given time." I didn't know 

what the hell was coming off. I took my radio 

1064 
and I put it on Phil's desk. I said, "Byron, I 

just went through this with Tony Burk and you are 

calling me a liar, and I can't ••• " I said, 

"Byron, I have been seeing a doctor because of 

the stress over filing this Goddamn grievance." 

I said he told me if I can't handle it, that I 

should walk away from it now. I was in no condition to stay around the plant. His attitude 

was just--I couldn't deal with it. It was the 

final straw. 

I left the office and then I went back and 

I told him at that time, I says he told me I 

would have to walk away from it if I could. I 

said, "I've got to walk away from it." I said, 

"I've got to take sick leave, take official 

sick leave, ti and I walked out the door and then 

I came back in and told him once again. I said, 

"I am taking official '·sick leave, ti and I told him 

I was going to send a letter to Mr. Unmacht, and 

I made the comment that I was also going to talk 

to the Bakersfield, California, reporters who 

had been asking me to comment on different things 

going on up there. And I left the plant. 

I also told him, prior to leaving, that I 

was going on official sick leave, and that I 

would provide the documentation as soon as I 

could, and I left. (Tr. 87, 88) 

Mro McMichael"s version of the meeting is as followsg 

Ao we sat down in Mro Messerus office and 

Mr" Saffell came in and Phil Messer shared his 

condolences with Mro Saffell about his motherin-law, and then I started my list of things 

that I wanted to talk with Mr. Saffell a.boutu 

and he became just violento Threw his radio 

down and says I donvt have to listen to this 

any moreo He says I will give you a doctor 0 s 

statement that says I can leave work whenever 

I want too I thought he was going to get mad, 

walk out the doorq cool off and come back and 

we are going to talk some more about this, and 

I waited in the control room for almost an hour. 

And then I asked some of the guys, I said where 

did he go? They said he left the plant. I said, 

really? I didn't believe it. 

1065 
By way of collateral evidence: When Mr. Saffell left the 

plant, he believed he was mentally distraught. He didn't call 

NCC the next morning because he hadn't gathered his information. 

( Tr • 1 0 7 , l 0 8 ) • 

Mr. McMichael reviewed his notes and Mr. Messer's notes for 

a couple of days after December 27. He expected Mr. Saffell to 

come up the next morning with documentation from a medical doctor showing he had been treated .and was given permission to take 

off work whenever he felt stressed. When he didn't show up in a 

couple or three days, Mr. McMichael decided Mr. Saffell was sincere about resigning. Mr. McMichael made his termination decision around December 31, 1989. (Tr. 183). 

On January 2, 1990, Mr. Saffell learned that NCC said he no 

longer worked there. He had not been contacted by the company 

nor had he been in touch with them after going on sick leave. 

(Tr. 91) • 

Mr. Saffell had never seen a form for sick leave and NCC 

never offered him an opportunity to return to work. 

C Tr • 9 2 , 9 7) • 

Mro McMichael felt that Mr. Saffell's actions were insubordinate. Further, he believed Mr. Saffell had intended to resign. 

John Turner also told NCC that Mr. Saffell intended to resign at 

the end of the year. (Tr. 141). 

In a number of instances, Mr. McMichael was less than satisfied with Mro Saffell as a management employee. These include 

the meeting where Mro Saffell became hostile with electrician 

Kempleo {Tro 136)0 Alsou the meeting with the instrument people 

where Mr. Saffell became hostile, violent, and abrasiveo (Tro 

18 0 139). In additionu Mro McMichael had been told Mro Saffell 

left the plant on December 12, 1989. This was when he abandoned 

his post. (Tro 141). Further, he reported he would be off for 

his mother-in-law1 s funeral. (Tr. 141). This report was made to 

the control operator but Mro Saffell could have called Mro McMicha rectly. (Tr. 142). 

DISCUSSION 

On the facts, it appears NCC took adverse action against 

Mro Saffell when it refused to reinstate him. However, I conclude such adverse action was not motivated, in whole or in part, 

by Mr. Saffell's protected activity. Assuming that NCC's actions 

were motivated in part by Mr. Saffell's protected activities, NCC 

established by a clear preponderance of the evidence, that it was 

1066 
also motivated by business reasons and Complainant's unprotected 

activities, and that it would have taken the adverse actions in 

any event. 

For the foregoing reasons, I enter the following: 

ORDER 

Complainant failed to establish discrimination under the 

Mine Act on the part of Respondent and, accordingly, these 

proceedings are DISMISSED. 

Morris · strative Law Judge 

Dis tributiong 

James Eo Millaru Esq.u 1400 Chester Avenue, Suite Eu Bakersfieldu 

CA 93301 (Certified Mail) 

Michael To Heenanu Esq.u C. Gregory Ruffennach, Esq., SMITH, 

HEENAN & ALTHEN, 1110 Vermont Avenue, N.W. 11 Suite 400, Wishington, D.C. 20005-3593 (Certified Mail) 

ek 

1067 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 291992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: 

Docket No. CENT 92-78-M 

A.C. No. 41-02852-05517 

v. 

Tin Top Sand and Gravel Plant 

TEXAS INDUSTRIES, INCORPORATED, 

Respondent 

Appearances: 

Before: 

DECISION 

Olivia Tanyel Harrison, Esq. and Jack Ostrander, 

Esq., Office of the Solicitor, U.S. Department 

of Labor, Dallas, Texas, for Petitioner; 

Bob Williams, Texas Industries, Incorporated, 

Weatherford, Texas, for Respondent. 

Judge Melick 

This case is before me upon the petition for civil penalty 

led by the Secretary of Labor pursuant to Section l05(d) of 

Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801 et~, the 11Act, 11 charging Texas Industries, Incorporated 

(Texas Industries) with six violations of mandatory standards. 

The general issue before me is whether Texas Industries violated 

the cited regulatory standards and, if so, what is the 

appropriate civil penalty to be assessed. 

Citation No. 3895580 alleges a "significant and substantial" 

violation of the standard at 30 C.F.R. § 56.12025 and charges as follows~ 

The spray bar water pump 480 VAC and its 

switch gear were not effectively grounded in 

that a grounding conductor had not been provided 

from the main service near the transformers to 

the electrical switch gear about 300 feet away. 

The cited standard provides in relevant part that 

"[a]ll metal enclosing or encasing electrical circuits shall 

be grounded or provided with equivalent protection." 

1068 
Texas Industries does not dispute that the violation 

existed as charged but maintains that it was neither "significant or substantial" nor of serious gravity. Melvin Robertson, 

an MSHA mine inspector/electrical with extensive electrical 

experience, testified that indeed there was no grounding medium 

for the branch circuit to the 35 horsepower starter pump as 

charged. According to Inspector Robertson, the National 

Electrical Code, which is also used and followed by the Texas 

Industries' electrical engineer, provides the relevant industry 

standards. These standards were not being followed with respect 

to the cited branch circuit. Moreover, Robertson noted that the 

National Electrical Code specifically provides that "the earth 

shall not be used as the sole equipment grounding conductor" and 

therefore the peg ground utilized at the pump site was clearly 

inadequate. Inspector Robertson opined, based upon the existing 

conditions, that there was a reasonable likelihood for ground 

faults to occur resulting in electrical shock or fire. He also 

noted that the voltage was sufficient to cause electrocution. 

On behalf of Texas Industries, Charles Cleaveland, the 

Tin Top Plant Manager at the time the citations were issued, 

disagreed with Inspector Robertson's opinion regarding the 

severity of the hazards. At the same time, however, Cleaveland 

readily acknowledged and qualified his statement by conceding 

that he did not have electrical expertise. Under the circumstances I can give Mr. Cleaveland's lay opinion but little 

weight. On the other hand, the expert testimony of Inspector 

Robertson is persuasive regarding the severity of the hazard 

and I have no difficulty in concluding based on that testimony 

that the hazard was both "significant and substantial" and 

seriouso See Mathies Coal Co, 6 FMSHRC 1 (1984)v U.So Steel 

Mining Cov 7 FMSHRC 1125 (1985)0 There is a dearth of evidence 

on the issue of negligence and considering the remaining criteria 

under Section llO(i) of the Act, I find that a civil penalty of 

$100 is appropriate. 

The remaining five citations charge violations of the 

standard at 30 C.F.R. § 56.141079(a) and each chargesu in 

essence, that a flange type bushing or seal keeper on the 

ends of a rotating shaft were exposed and not guardedo 

These were all located in areas along walkways where an 

employee would, according to the inspector, likely get a 

hand, finger, or clothing caught in pinchpoints or suffer 

injuries from the rotating bolts protruding from the moving 

machine part. The specific charges in the citations are set 

forth in the appendix attached hereto. 

The cited standard, 30 C.F.R. 56.14107(a), reads as follows: 

Moving machine parts shall be guarded to 

protect persons from contacting gears, sprockets, 

chains, drive, head, tail, and takeup pulleys, 

1069 
flywheels, couplings, shafts, fan blades, and similar 

moving parts that can cause injury. 

Texas Industries does not _dispute the existence of the 

cited violations, but maintains that j:.hey were neither 

"significant and substantial" nor serious. According to 

MSHA Inspector Robertson, the factual situations involved in 

Citation Nos. 3895911, 3895912, and 3895914, were essentially 

the same. Each involved an unguarded rotating shaft with 

bolts protruding from the rotating shaft and a gap of approximately one-half inch that was unguarded and would permit a hand 

or finger to be inserted causing broken bones, lacerations, and 

mangled hands and/or fingers. Robertson concluded that the 

hazard was "significant and substantial" and serious because of 

the close proximity of these unguarded moving machine parts to 

walkways at a height of approximately 30 to 40 inches above the 

walkway and in areas in which an employee might reach as for a 

handrail. He observed that employees were greasing at the time 

the citations were issued and that there were grease fittings in 

close proximity to the moving machine parts. He testified that 

in most cases the grease fittings are directly behind the flange 

and noted that greasing does in fact occur at these locations 

while the plant is in operation. 

With irespect to Citation Nos. 3895915 and 3895975, Inspector 

Robertson observed that the cited unprotected gaps exposing the 

moving machine parts were larger than those previously cited and 

therefore would permit an employee's clothing to become entangled 

by the moving parts. He concluded that these hazards were less 

severe than where the hand or fingers could become mangled. 

Plant Manager Charles Cleaveland testified on the other 

hand that these citations did not present a major safety hazard. 

He based his conclusion upon the fact that the plant had been 

in operation since 1975, had been inspected many times by 10 or 

11 different inspectors and that this was the first time these 

conditions had been cited. In addition, he noted that the cited 

areas have work platforms with handrails. It was therefore his 

opinion that it was unlikely for employees to use the flanges 

as handrails. He further testified that serious injury findings 

in these cases was inconsistent with findings in another citation 

(Citation No. 3895913} which the same Inspector found not to be 11 significant and substantial." 

In rebuttal Inspector Robertson observed that the conditions 

found in Citation No. 3895913 were distinguishable in that a bar 

provided partial protection to employees and would have hindered 

employees from exposure to the hazardous moving machine part. 

Inspector Robertson also testified that in 1988 he had specifically informed previous Plant Manager Fuller of the hazardous 

nature of the exposed flanges and advised him to provide guards 

for those exposed flanges. 

1070 
Under the circumstances I find that the Secretary has 

met her burden of proving that the violations were indeed 

"significant and substantial" and serious. In light of 

the inspector's testimony regarding previous warnings to 

management to guard the cited.condit.:j.ons in 1988, it is 

also clear that the operator is chargeable with negligence. 

Considering all of the criteria under § llO(i) of the Act, 

I find that the Secretary's proposed penalties are indeed 

appropriate. 

ORDER 

Texas Industries, Incorporated, is hereby directed to pay 

civil penalties of $456 within 30 days of the date of this 

decision. 

Distribution: 

Olivia Tanyel Harrison, Esq. and Jack F. Ostrander, Esq., Office 

of the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite SOlv Dallasp TX 75202 (Certified Mail) 

Charles Cleaveland? Texas Industriesp Incorporated, 5211 New Tin 

Top Road, Weatherford, TX 76087 (Certified Mail) 

/lh 

1071 
APPENDIX 

Citation No. 3895911: 

A flange type bushing or seal keeper was 

mounted on the end of the No. 128 belt 

conveyor drive gear box drive shaft rotating 

within an approximately one half inch of the 

belt drive guard. The flange is about 

40 inches up from the walkway where an 

employee would likely get hand or finger into 

pinch point. 

Citation No. 3895912: 

A flange type bushing or seal keeper was 

mounted on the end of the No. 127 belt 

conveyor gear case 'drive shaft. The belt 

heads on the rotating flange came very close 

to the drive guard approximately one half 

inch and was located about 40 inches up from 

the walkway where an employee would travel to 

service the area. 

Citation No. 3895914: 

A guard was not provided for the 

rotating flange on the drive shaft of No. 123 

belt conveyor gear case shaft. The flange 

rotates very near the drive gear· (belt heads 

about 1/2 inch from guard) causing a pinch 

point about 40 inches up from the access way 

that an employee would likely get finger 

caught in. 

Citation No. 3895915: 

A guard was not provided over the 

rotating flange on the end of the gear case 

shaft of No. 120 belt conveyor. Bolt heads 

on the key way area on the flange could catch 

clothes of employees. This flange located 

just under where an employee would check oil 

in gear case or near where he would grease 

pillow block bearing. An employee was 

observed greasing in Plant during shift. 

1072 
Citation No. 3895975: 

A flange type bushing or seal keeper 

was mounted on the end of the No. 122 belt 

conveyor gear case drive shaft. The bolt 

heads on the rotating flange came very close 

to the drive guard where an employee would 

likely get a finger caught in the pinch point 

or catch clothes. 

1073 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

n di ' N ° r. e -l • I 9 92 ;.":JV'·~ 1:..... 

SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

PEABODY COAL COMPANY 

Respondent 

) Docket No. KENT 91-1417 

} A.C. No. 15-02705-03726 

) 

) Camp No. 2 Mine 

) 

) 

) 

DECISION 

Appearances: MaryBeth Bernui, Esq., Office of the Solicitor, 

United States Department of Labor, Nashville, 

Tennessee, for Petitioner; 

Before: 

David R. Joest, Esq., Peabody Coal Company, 

Henderson, Kentucky, for Respondent. 

Judge Melick 

This case is before me upon the petition for civil penalty 

filed by the Secretary of Labor pursuant to § 105(d) of the 

Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801 et~, the "Actv" charging the Peabody Coal Company (Peabody) 

under Section 104(d)(l) Citation No. 355!466, with one violation 

of the mine operator's ventilation plan. 

1 

follows~ 

Section 104(d)(l) of the Act provides in part as 

If F upon any inspection of a coal or other minep 

an authorized representative of the Secretary finds 

that there has been a violation of any mandatory health 

or safety standard, and if he also finds that, while 

the conditions created by such violation do not cause 

imminent danger, such violation of such nature as 

could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety and 

health· hazard, and if he finds such violation to be 

caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, 

he shall include such finding in any citation given to 

the operator under the Act. 

1074 
It is established law that once a ventilation plan is 

approved and adopted, its provisions are enforceable at the 

mine as mandatory safety standards. Zeigler v. Kleppe, 536 F.2d 

398 (D.C. Cir. 1976), Carbon County Coal Co., 6 FMSHRC 1123 

(1984), Carbon county Coal.co., 7 FMSHRC 1367 (1985), Jim Walter 

Resources, Inc .. , 9 FMSHRC 903 (1987): The general issue before 

me is whether Peabody violated the ventilation plan as charged, 

whether the violation was "significant and substantial" and/or 

the result of "unwarrantable failure," and what, if any, civil 

penalty should be assessed. 

Citation No. 3551466, charges as follows: 

The No. 2 monitoring borehole drilled from 

the surface penetrating through the No. 11 coal 

Seam into the No. 9 Coal Seam for the purpose of 

monitoring the No. 8 and No. 9 seals in the No. 9 

Coal Seam, was not properly identified on the 

mine map for the No. 11 'Coal seam and as the result 

of was mined into destroying the borehole. 

It is undisputed that the alleged violation is based upon 

provisions of a petition for modification which had been granted 

and had become part of the mine operator's approved ventilation 

plan. In essence, those provisions required that "the 5 east and 

6 east seals shall be mo~itored from a borehole identified on the 

mine map as Hole No. 2." Peabody does not dispute that the 

violation occurred as charged but maintains that the violation 

was neither "significant and substantial" nor caused by its 

"unwarrantable failure" to comply with the applicable law. 

The essential facts are not in dispute. Mining operations 

at the camp No. 2 Mine are conducted in two seams, the No. 11 

seam (upper) and the No. 9 seam (lower). Pursuant to an order 

granting a petition for modification of the application of a 

mandatory safety standard, Peabody had been monitoring air 

quality outside certain seals of abandoned areas in the lower 

seam by sampling through boreholes drilled from the surface. On 

March 7? 1991, a mining unit in the No. 1 section of the upper 

seam mined through one of these methane monitoring boreholes, 

the Noo 2 borehole. There seems to be no dispute that this 

occurred because the mine map in use in March 1991 erroneously 

showed the No. 2 borehole as if it were a core sample drillhole 

rather than a monitoring borehole. Core drillholes are plugged 

after they are drilled and are normally mined through. The No. 2 

borehole should have been clearly marked on the mine map so that 

it would not be mined through, however, due to negligence in the 

2 The apparent contradiction between the language in the 

citation that the No. 2 monitoring borehole monitored the No. 8 

and No. 9 seals and the statement in the ventilation plan that 

the No. 2 borehole monitored the 5 and 6 East seals was explained 

at hearing by MSHA Inspector Smith (See Tr. 31-32). 

1075 
preparation of the map in the mine engineering office it was not. 

It is not disputed that the area in the upper seam through which 

the No. 2 borehole passed was not originally projected to be 

mined so that marking the No. 2 borehole as a borehole would not 

have been critical at the t:.ime·. wheI). the plans changed and 

projections for mining that area were added to the map, someone 

neglected to mark the No. 2 borehole as it should have been 

marked. 

In evaluating whether a violation is "significant and 

substantial" the Commission in Mathies coal Company, 6 FMSHRC 1 

(1984), explained as follows: 

In order to establish that a violation of 

a mandatory safety standard is significant and 

substantial under National Gypsum the Secretary 

of Labor must prove: (1) the underlying violation 

of a mandatory safety standard; (2) a discrete 

safety hazard -- that is;· a measure of danger to 

safety-contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed 

to will result in an injury; and (4) a reasonable 

likelihood that the injury in question will be of 

a reasonably serious nature. 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows: 

We have explained further that the third element 

of the Mathies formula 'requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

an injuryo v U.S. Steel Mining Co.f 6 FMSHRC 1834, 

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

accordance with the language of section 104(d)(l), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Co., 6 FMSHRC 1866 1 

1868 (August 1984); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574-75 (July 1984). 

The question of whether any particular violation is 

significant and substantial must be based on the particular 

facts surrounding the violation. Secretary of Labor v. 

Texasgulf, Inc., 10 FMSHRC 1007 (1987). 

The third element of the formula requires that the 

Secretary establish "a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an 

injury" and that the likelihood of injury must be evaluated in 

terms of continued normal mining operations. U.S. Steel Mining 

Co., 6 FMSHRC 1573 (1984); Monterey Coal Co., 7 FMSHRC 996 

(1985). The time frame for determining if a reasonable 

1076 
likelihood exists includes the time that a violative condition 

existed or would have existed if normal mining operations 

continued. Rushton Mining Co., 11 FMSHRC 1432 (1989). 

MSHA Inspector Ted Smi.th found the violation in this case 

to have been "significant and substantial." He testified that 

the roof conditions in the area of the seals was bad and had not 

been physically examined for two years. He further noted that 

the area behind the seals historically accumulates high levels 

of methane, between 30 and 50 percent, and oxygen is depleted in 

those areas. He opined that such methane could migrate into the 

cavities and cracks of the No. 9 and No. 11 seam and into the 

borehole either through a roof fall or cracked seal. According 

to Smith, if the methane should escape into these areas, which 

were ventilated by the old south fan, the level of methane could 

very well be diluted to the explosive 5 to 15 percent range. In 

addition, according to Smith, if the continuous miner should 

strike the lining of the borehole or limestone it could cause an 

ignition. He further opined that the ignition could travel back 

down into the No. 9 seam causing a violent explosion and injuring 

miners working in both the No. 9 and No. 11 seams. 

Peabody argues on the other hand that the violation was 

not ''significant and substantial" because the inspector's 

scenario required at least three discrete steps: (1) a failure 

of the seals monitored by the No. 2 monitoring borehole, 

(2) explosive concentrations of methane in the No. 9 seam workings, and (3) sufficient quantities of methane travelling from 

the No. 9 seam to the No. 11 seam to cause an explosion. Peabody 

argues that the ten previous months of daily monitoring at the 

borehole reflects either no methane or occasional negligible 

amounts of methane at the borehole andp similarlyp only negligible amounts of methane found at the old south exhaust fan for 

several weeks after the incident at issue. Peabody also argues 

that it is unlikely that sufficient quantities of methane would 

travel from the No. 9 seam to the No. 11 seam to cause an 

explosion since the pipe was only one and a quarter inches in 

diameter and a pump had to be used to extract samples at the 

surfaceo 

While it is true that the targeted hazard in this case 

would require the coincidence of several events, I nevertheless 

find that the Secretary has proven through the credible testimony 

of her expert witness that there was a discrete safety hazard 

contributed to by the underlying violation and that there was a 

reasonable likelihood that the hazard would result in serious 

injuries or death. Accordingly, the instant violation meets the 

stated criteria to be "significant and substantial." For the 

same reasons the violation was also of high gravity. 

I do not however find that the Secretary has sustained 

her burden of proving that the violation was caused by Peabody's 

"unwarrantable failure" to comply with the standard. Unwarrantable failure has been defined by the Commission as aggravated 

1077 
conduct constituting more than ordinary negligence. See Emery 

Mining Corporation, 9 FMSHRC 1997 (1987), Youghiogheny and Ohio 

coal Company, 9 FMSHRC 2007 (1987). In this case it is clear 

that the instant violation was the direct result of the 

inattention of the mine engineering off ice in preparing the 

mine map. This inattention constitutes negligence but not of 

a particularly aggravated nature. In addition it is noted 

that the persons performing and supervising the actual mining 

did not know the location of the No. 2 borehole or did not 

realize that it was a borehole as a result of the negligent 

preparation of the mine map. Absent more I cannot find that 

these circumstances constitute .more than simple negligence. 

Accordingly, and considering all the facts under section llO(i) 

of the Act, I find that a reduction in the proposed civil 

penalty to $700 is appropriate. 

ORDER 

Citation No. 3551466 is modified to a citation issued under 

§ 104(a) of the Act and is AFFIRMED as modified. Peabody Coal 

Company is directed to pay civil penalties of $700 ithin 30 days 

of the date of this decision for th~ation the 

· i I f I 

Gar Melfck f 

Judge 

703-756 6261 

i 

tribution: a 

MaryBeth Bernui, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

David R. Joest, Esq., Midwest Division Counsel, Peabody Coal 

Company; 1951 Barrett Court, P.O. Box 1990, Henderson, KY 

42420-1990 (Certified Mail) 

\lh 

1078 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 91992 

RICHARD ALLEN PLASTER, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

FALCON COAL CORPORATION, 

Respondent 

DECISION 

Docket No. VA 91-449-D 

NORT CD 91-02 

Mine No. 1 

Appearances: E. Gay Leonard, Esq., Copeland, Molinary & Bieger, 

Abingdon, Virginia, for Complainant; 

Thomas R. Scott, Jr., Esq., Street, Street, street, 

Scott & Bowman, Grundy, Virginia, for Respondent. 

Before: Judge Maurer 

STATEMENT OF THE CASE 

This proceeding concerns a discrimination complaint filed by 

the complainant, Richard Allen Plaster, against the respondentu 

Falcon Coal Corporation (Falcon)u pursuant to section l05(c) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et seq. Mr. Plaster filed his initial complaint with the 

Secretary of Labor; Mine Safety and Health Administration (MSHA). 

His complaint alleged: 

On January 27, 1991 (sic)u I was section electrician at 

Falcon Coal Corporation. My battery light went out at 

the beginning of the shift (at approximately 3 p.m.). 

I made a couple of attempts to have one brought to me 

by Mr. Hackney and after he declined to do so and after 

talking to the section f oreman 1 I removed myself from 

what I considered a hazardous working condition (no 

light) and removed myself from the mine to obtain 

another light. While I was obtaining another light, a 

verbal confrontation occurred between Rick Hackney and 

myself because I had removed myself from what I felt 

like was a hazardous condition. 

During the verbal confrontation with Mr. Hackney, I was 

discharged by him. Mr. Hackney just slapped his hands 

and said, "You're gone." I then requested him to have 

a Federal inspector come to the mine site and I 

received no response from him. 

1079 
Following an investigation of his complaint, it was found by 

MSHA to lack merit because a violation of section 105(c) had not 

occurred. Mr. Plaster then filed his complaint with this 

Commission. 

Pursuant to notice, a hearing was conducted in Abingdon, 

Virginia, on February 13, 1992. Subsequently, both parties filed 

post-hearing briefs and/or proposed findings and conclusions, 

which I have considered along with the entire record of 

proceedings in this case in making the following decision. 

The complainant originally alleged that he was illegally 

discharged from his job with Falcon on January 28, 1991, when he 

was fired after leaving his work place to come outside the mine 

to get a cap light~ Complainant also now alleges that he had 

several prior confrontations with Falcon management because of 

unrelated safety violations in the mine and he believes that his 

discharge on January 28, 1991, was motivated at least in part by 

these previous safety complaints. !{espondent, on the other hand, 

insists that Plaster was quite properly discharged from his job 

solely for insubordination--- the admitted use of abusive 

language directed towards his supervisor during a work-related 

discussion with that supervisor. 

DISCUSSION 

Plaster began his employment at Falcon as an electrician/ 

mechanic on December 4, 1990. He was fired on January 28, 1991. 

In the intervening 2-month time perioq, Plaster now claims 

to have had several confrontations with the mine foreman, Ricky 

Hackneyo Hackney was 9 like Plaster 9 also a certified 

slectrician; and the subject of these nconfrontations 11 

purportedly was electrical hazards that Plaster was finding in 

the mineo Hackney, howeverq flatly denies that there were ever 

any confrontations or discussions with Plaster about any unsafe 

electrical conditions. I do believe Plaster found and repaired 

several unsafe electrical conditions during his short tenure at 

mine, but I do not find credible his allegations that he had 

any trouble with Hackney because of ito I note that there is no 

mention made of this in his complaint to MSHA filed January 30, 

199lo My considered opinion after reading this entire record 

again that whatever happened to cause Plaster to be discharged 

on January 28, 1991, played out on that day. Hackney had no preexisting agenda to get rid of Plaster. Therefore, I will turn 

now to the important events of January 28, 1991, in some detail. 

When Plaster went into the mine on January 28, 1991, his cap 

light was apparently operating normally. However, in a short 

time, it began to go dim even though he claims to have charged it 

for 11 hours preceding that shift. 

1080 
Plaster also claims that the only other prior incident 

involving his cap light was resolved virtually without incident 

before he went underground. This testimony differs considerably 

from that of his section foreman, Allen Perkins and mine foreman 

Hackney. They both recall numerous occasions during his 2-month 

employment that Plaster had problems with his light. The resolution of this discrepancy in the testimony is probably not too 

important except perhaps as it bears on the frustration level of 

Perkins and/or Hackney if it is true that this was a frequently 

recurring situation. 

At any event, shortly after arriving at the section on 

January 28, Plaster called Hackney on the surface and told him 

about the problem with his light. Hackney told Plaster that he 

would get him a new light as soon as possible. Plaster also went 

to his section foreman, Perkins, and told him that his light was 

going out and that he had already called Hackney and that Hackney 

was going to send him one in. Perkins told Plaster to go back to 

the feeder area, where another miner was stationed who had a 

light, and stay there until Hackney called and said that he was 

coming in with his light; then he (Perkins) would send somebody 

to the end of the track to get it. 

When the replacement light was not forthcoming, Plaster 

called outside to Hackney a second time, telling him that his 

light had now gone completely out and asking him again to send in 

a light as well as a part needed for repair of a shuttle car. 

Hackney again told Plaster that he still could not deliver the 

light because he was alone outside. Federal regulations and 

Virginia state law require that a responsible person be on duty 

at all times outside the mine in case of an emergencyo Therefore, Hackney was waiting for Jerry Shortridge to arrive at the 

mine office so he could take the light to Plaster. Hackney 

seemingly was unaware of itQ but Shortridge arrived in the off ice 

area in time to hear Hackney tell someone [probably Plaster] on 

the telephone that "[t]here is nobody out here but me. I have no 

way of getting you one." (Tr. 259). 

After the second telephone conversation with Hackney, 

?laster requested that his foreman allow him to go out and get 

his own light. Perkins told him to go ahead. Plaster's subsequent unlit trip to the surface was undertaken in at least as 

hazardous a condition and probably more so than the situation he 

was in at the feeder. He went out of the mine with neither a cap 

light nor an operable light on the mantrip. He himself admits it 

was hazardous to come out that way but states that 11 it was either 

that or stay in there the entire shift without a battery light. 11 

It seems to me that a third option, i.e., waiting for someone 

else to either bring one in, or getting someone else who had a 

light to come out would have been preferable. But, in any event, 

he did successfully make it outside without incident. 

1081 
After arriving on the surface, he went to the supply shed 

and was in the process of obtaining a light when he encountered 

Hackney. Hackney asked "[W]hat in the hell are you doing?".or 

words to that effect. He was angry that Plaster had come out of 

the mine. Plaster replied, according to Shortridge, who overheard this exchange, and essentially corroborates Hackney's 

version, with words to the effect that he was getting a light. 

Hackney responded by berating Plaster: "No, you didn't have to 

come outside to get a light. You could have gotten someone else 

to have gotten a light." Additionally, Plaster testified that he 

added on: "Your job is up there [indicating inside on the 

section]. If you stay here, you will stay on the section where 

your job is at." Plaster then said: "You'll have to take that 

up with Perkins." Intimating I suppose that Perkins had ordered 

him to go outside and get his own light. Perkins denies this, 

but he did allow him to go as opposed to ordering him to go. 

Anyway, Hackney replied: "I will, but right now you're standing 

in front of me and I'm taking it up with you." At this point, 

Plaster was now angry about being brought up short by Hackney. 

According to Shortridge, he is now talking louder than Hackney, 

who is also angry. Plaster replies with: "Fuck you, I ain't 

staying in there without no light." (Plaster's version) or "Fuck 

you, you can't tell me what to do." (Hackney's version). After 

some more disputed conversation which could more properly be 

called angry argument, Plaster tells Hackney "fuck you" twice 

more, at least according to Hackney and Shortridge. At the third 

repetition of this offensive phraseology, Hackney fired Plaster 

on the spot. Two days later Plaster filed the complaint at bar. 

The general principles governing analysis of discrimination 

cases under the Mine Act are well settled. In order to establish 

a prima facie case of discrimination under section 105(c) of the 

Act, a complaining miner bears the burden of production and proof 

in establishing that (1) he engaged in protected activity and (2} 

the adverse action complained of was motivated in any part by 

that protected activity. Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), 

rev 1 d on other grounds sub nom. Consolidation Coal Co. v. 

Marshallq 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April 

1981). The operator may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was in no part motivated by protected activity. If an 

operator cannot rebut the prima facie case in this manner, it 

nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected 

activity alone. Pasula, supra; Robinette, supra. See also 

Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 

1987); Donovan v. Stafford construction 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 Fasula-Robinette 

1082 
test). Cf. NLRB v. Transportation Management Corp., 462 U.S. 

393, 397-413 (1983) (approving nearly identical test under 

National Labor Relations Act). 

Of particular importance in this case is the second part of 

the complainant's burden of proof. He must make an initial 

showing that his discharge was motivated at least in some part by 

his protected activity. If he fails to establish a causal connection between his protected activity, and the adverse action 

taken against him, he has failed to prove an essential element of 

his case and his complaint is subject to dismissal. 

If going outside to get his own light was protected activity, and arguably it was, the adverse action must still be proven 

to have been taken as a result of that protected activity in 

order to be found discriminatory under the Mine Act. 

It seems clear to me from the record in this case that going 

outside to get the light wasn'twhatgot him fired. Hackney 

wasn't real happy to see him out there by any means, but had he 

just gotten the light and kept his mouth shut, I'm convinced he 

wouldn't have gotten fired. It was solely the insubordinate and 

abusive language that got him fired and that is not protected 

activity. Plaster himself testified that Hackney told him just 

minutes or even seconds before he was fired: "If you stay here, 

you will stay on the section where your job is at." (Tr. 58). 

This statement is attributed to Hackney by Plaster before he 

uttered his insubordinate response. At that point in time he 

still had a job. And it is my impression that had he said 

nothing further or simply said "OK, I've got the light, I'm going 

back in now," that would have been the end of it. He would not 

have been firedo He wasn~t in fact fired until after he said an 

angry uufuck youn to Hackney either once or three times, depending 

on whose version of the argument you believe. But, no matter how 

many times it was, it is undisputed that only after that exchange 

was he fired. That appears to me to be a justifiable firing that 

was the immediate and direct result of his insubordinate 

languageo 

Complainant attempts to justify his outburst by showing that 

virtually all the miners, including Hackney himself, use this 

type of language with each other on a daily basis 1 and I accept 

that as true. However, all the witnesses who testified in this 

case 1 save the complainant, also very clearly stated that this 

type of language is not directed at one's supervisor during a 

serious business discussion, and if it was, they would expect 

repercussions. 

Perhaps as an illustration of that principle, after Plaster 

had departed, Hackney purportedly remarked to Shortridge: 

"Nobody is going to stand and cuss me like that." (Tr. 269). 

1083 
In summary, complainant has most definitely not shown by a 

preponderance of the reliable and probative evidence that his 

discharge was motivated in any part by protected activity. He 

has therefore failed to meet his burden of proof in this regard. 

I concur with the respondent that insubordination, i.e., 

this type of verbal abuse by an employee directed towards his 

supervisor, need not be tolerated by any company, and is 

certainly not protected activity under section l05(c) of the Mine 

Act. 

ORDER 

In view of the foregoing findings and conclusions, and after 

careful consideration of all of the credible evidence and 

testimony adduced in this case, I conclude and find that the 

complainant has failed to establish a violation of section 105(c) 

of the Act. Accordingly, the complaint IS DISMISSED, and the 

complainant's claims for reli·ef ARE DENIED. 

aurer 

rative Law Judge 

Distribution: 

E. Gay Leonard, Esq. Copeland, Molinary & Bieger, 212 West Valley 

Street, Po o. Box 1269, Abingdon, VA 24210 (Certified Mail) 

Thomas Ro Scottu Jrou Esqou Street, Street, Street, Scott & 

Bowman, 339 West Main Street, Po Oo Box 2100, Grundyp VA 24614 

(Certified Mail) 

dcp 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266 I FTS 564-5266 

JUN 3U1992 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

: 

. . 

: 

. . 

. . 

Docket No. WEST 91-168 

A.C. No. 05-00301-03764 

: Dutch Creek Mine 

MID-CONTINENT RESCXJRCES 

INCORPORATED, 

Respondent 

. . 

: 

. . 

DECISION APPROVING PARTIAL SETTLEMENT 

Appearances: Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner; 

Edward Mulhall, Jr., DELANEY & BALCOMB, P.C. Glenwood Springs, Colorado, 

for Respondent. 

Before: Judge Morris 

This is a civil penalty proceeding initiated ~ Petitioner 

against Respondent pursuant to the Federal Mine Safety and Health 

Act of 1977 fl 30 U .,S oCo § 80lv et ~ (the 81Act") o The civil 

penalties sought here are for the violation of mandatory regulations promulgated pursuant to the Acto 

A hearing in this case and related cases commenced in Glenwood Springsu Colorado on April 15u 19920 '!he parties reached a 

partial amicable settlement and subsequently filed a written 

Joint Motion t.o Approve Settlemento 

Respondent further filed a suggestion of bankruptcy. 

The Citations, the original assessments, and the proposed 

dispositions are as follows: 

Citation/ 

Order No. 

3580363 

3580351 

3410391 

3411019 

Proposed Penalty 

$1,000.00 

$1,100.00 

$1,100.00 

$1,600.00 

TOTAL 

1085 

Amended 

Proposed Penalty 

$ 600.00 

660. 0 0 

660.00 

960.00 

$2,880.00 
In support of their motion, the parties sul:mitted information relating to the statutory criteria for assessing civil penalties as contained in 30 u.s.c. § 820Ci). 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. Citation Nos. 3580363, 3580351, 3410391, and 3411019 and 

the amended proposed penalties are AFFIRMED. 

2. Respondent filed a case under Chapter 11 of the Bankruptcy Code and is operating ,its bankruptcy estate as a debtorin-possession. Accordingly, upon approval of the United States 

Bamkruptcy Court in Case No. 91-11658 PAC, it is ORDERED that 

civil penalties be assessed against the Respondent in the amount 

of $2,880.00 and Petitioner is authorized to assert such assessment as a claim in Respondent's Bankruptcy case. 

3. The undersigned Judge retains jurisdiction of this case 

and related cases not otherwise disposed of by the settlement 

herein. (Order No. 3410800 was the subject matter of contest and 

evidentiary hearings conducted April 15 and 16 and June 16 and 

l7q 1992)0 

rris 

rative Law Judge 

Distribution~ 

Margaret Ao Milleru Esq-u Office of the Solicitor, U.S. Department of Laboru 1585 Federal Office Building, 1961 Stout Street, 

Denveru CO 80294 (Certified Mail) 

Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, Drawer 7 90, 

Glenwood Springs, CO 81602 (Certified Mail) 

ek 

1086 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

IN RE: CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

4 1992 

MASTER DOCKET NO. 91-1 

ORDER GRANTING IN PART AND DENYING 

IN PART MOTION TO COMPEL FURTHER RESPONSES 

on April 20, 1992, Contestants represented by the law firm 

Jackson & Kelly (Contestants} filed a motion to compel further 

responses by the Secretary of I:.iabor (Secretary) to Contestants' 

discovery requests. The motion was supported by a memorandum. 

At my request, the Secretary filed with me copies of the 

Secretary's responses to the first and second sets of discovery. 

She requested that she be permitted to file a response to the 

Contestants' motion by May 22, 1992. I later orally extended the 

time without objection by Contestants to May 29, 1992. However, 

the Secretary has not filed a response to the motion. 

Contestants' motion is based in part on the fact that on 

March 19, 1992, the Department of Labor, Office of Inspector 

General (OIG) withdrew the claim of privilege previously asserted 

with respect to discovery requests involving dust samples taken 

by MSHA inspectors. In addition, Contestants seek an order 

compelling further responses to certain interrogatories as to 

which, they assert, the Secretary has made inadequate responses. 

INVESTIGATIVE PRIVILEGE-OIG 

Interrogatory 12, First Set, asks the Secretary to identify 

all inspector dust samples taken from Consolidation Coal Company 

(Consol) during the period 1988 to date, including the name of 

the inspector who took the sample. The Secretary's objection 

that disclosing the identity of the inspectors is protected by 

the OIG investigative privilege was sustained in my order issued 

December 30, 1991, After the OIG withdrew its claim of 

privilege, the Secretary on April 23, 1992, disclosed the 

identity of the inspectors submitting samples exhibiting AWC 

characteristics during the period in question. I conclude that 

this is an adequate response to the interrogatory. My order of 

December 30, 1991, held that the request for information as to 

all inspector samples during the period was overly broad. 

Interrogatory 13, First Set, also seeks the identity of the 

inspectors and other persons having contact with or 

1087 
responsibil.i ty for samples examined for AWC. My order of 

December 30, 1991, upheld the Secretary's objection to 

identifying the inspectors and upheld the objection to the 

remaining part of the interrogatory as being overly broad and 

unduly burdensome since it was not limited in time. On April 23, 

1992, the Secretary disclosed the identity of MSHA inspectors and 

field offices involved in processing samples found to have AWC. 

I conclude that this is an adequate response to the 

interrogatory. 

Interrogatory 14, First Set, also asks among other things 

for the identity of inspectors who took samples from Consol 

during the period 1988 to date which were found to have AWC. The 

Secretary's amended response discloses the identity of the 

inspectors and other information withheld because of OIG 

privilege claims. I conclude that this is an adequate response 

to the interrogatory. 

Request for Production 3, First Set, asks for all documents 

relating to any investigation·from 1988 to date of the subject of 

this proceeding. My order of December 30, 1991, upheld the 

Secretary's objection that the request was overly broad and 

unduly burdensome. Contestants' motion states that it is unclear 

whether the Secretary relied on the OIG investigative privilege 

in withholding any requested documents. The Secretary replied 

that she did not withhold any document sought in this request for 

production in reliance on the OIG privilege. I conclude that the 

Secretary has adequately responded to the request. 

Document 445 includes dust data cards concerning samples 

taken by MSHA inspectors from August 1989 to June 1991. The 

Secretary asserted the OIG investigative privilege. On May 30, 

1992 the Secretary sent copies of Document 445 and available 

MSHA inspector sample custody sheets to Contestants. I assume 

that this responds to Contestantsu request for production of 

Document 445. 

INADEQUATE RESPONSE 

Interrogatory 3u Second Set, asks the Secretary to describe 

all procedures to examine inspector or other MSHA generated 

samples for AWC. The Secretary responded by referring to the 

protocols in Repository Documents 13 and 177, and the depositions 

of Thaxton and Raymond. Contestants' motion argues that the 

Secretary has not identified the procedures used to ensure that 

all MSHA samples were, in fact, examined for AWC. I conclude 

that the Secretary's response is adequate. She was not asked for 

information as to procedures to assure that all MSHA inspector 

samples were examined, but only for the procedures actually 

followed in examining MSHA samples for AWC. The response -

referring to the documents describing the protocols - is an 

adequate response. 

1088 
Interrogatory 7, Second Set, asks the Secretary to 

distinguish each of Contestants' cited filters from the 

experimental filters produced in the West Virginia University 

study and the Pittsburgh Health Technology Center study. The 

secretary's response is that the cited filters differ from the 

experimental filters in that the former show evidence that the 

filter media were intentionally altered. This answer is not 

responsive. The interrogatory is obviously asking the Secretary 

for the physical distinctions, if any, between the two sets of 

filters. I will order her to further respond. 

Interrogatory 14, Second Set, asks the Secretary to state 

and identify all facts, documents, physical evidence, and 

individuals whose testimony will support the Secretary's negative 

response to requests for admissions, and to summarize the 

expected testimony of prospective witnesses and content of 

documents which support the Secretary's responses. The 

Secretary's response to the interrogatory states that her denials 

are self-explanatory and are sμpported by the deposition 

testimony of MSHA officials and employees, the exchange of expert 

reports, the deposition of experts, and the Secretary's response 

to Interrogatory 6. She also objects to being requested to 

identify witnesses at this time. I conclude that the Secretary 

has adequately responded to this extremely broad interrogatory. 

ORDER 

Accordingly, the motion to compel further responses to 

discovery requests is GRANTED with respect to Document 445. The 

Secretary is ORDERED to place Document 445 in the Document 

Repository. The motion is GRANTED with respect to Interrogatory 

7 Second Set; and the Secretary is ORDERED to further respond to 

that interrogatory. 

The motion to compel further responses is DENIED with 

respect to Interrogatories 12, 13, and 14, First Set, Request for 

Production 3, First Set, and Interrogatories 3 and 14, Second 

Set. 

j . I <L' ' ' / 'I' - "' l,ff.,,•·'1~/,>-"}, y"• ~" 1 ~ (c,"' _,(__c. ;, , , t__,,, 1- > -ckx, . e-/_ 

James A. Broderick 

Administrative Law Judge 

1089 
Distribution: 

Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Laura E. Beverage, Esq., Jackson' and Kelly, P.O. Box 553, 

Charleston, WV 25322 (Certified Mail) 

All others Regular Mail 

/fas 

1090 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266 I FTS 564-5266 

June 5, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

. . 

. . 

. . 

. . 

. . 

. . DONALD L. GIACOMO, employed : 

by WYOMING FUEL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-100 

A.C. No. 05-02820-03605 A 

Golden Eagle Mine 

ORDER GRANTING· MOTION TO COMPEL 

Pending herein is Respondent's motion to compel Petitioner 

to disclose the names of witnesses who will testify in the pending case. Petitioner, relying on Commission Rule 59, 29 C.R.F. 

§ 2700.59 1, declines to produce the requested information. 

At the Judge's direction, Petitioner produced for an In 

Camera inspection the portion of her file she desires to protect 

with the informant privilege. The material submitted may contain 

the names of informant witnesses and their testimony. 

l The cited Commission Rule reads as follows~ 

§ 2700.59 Name of miner witnesses and informants. 

A Judge shall not, until 2 days before a hearing, disclose or order a person to disclose to 

an operator or his agent the name of a miner who 

is expected by the Judge to testify or whom a 

party expects to summon or call as a witness. A 

Judge shall not, except in extraordinary circumstances, disclose or order a person to disclose 

to an operator or his agent the name of an informant who is a miner. 

1091 
DISCUSSION 

The controlling case law is the Commission decision in 

Secretary of Labor v. ex rel. George Roy Logan v. Bright Coal 

Co., Inc., and Jack Collins, 6 FMSHRC 2520 (1984). 

In Logan the Commission stated it was appropriate for the 

Judge to conduct a balancing test to determine whether the Respondent's need for the information is greater than the Secretary's need to maintain the privilege to protect the public 

interest. Logan, 6 FMSHRC at 2526. 

Findings of Fact 

1. This case is a civil penalty proceeding brought by the 

Secretary of Labor against Donald L. Giacomo ("Giacomo") under 

Section llOCc) of the Mine Act. 

2. Citation 3240616 charges Giacomo violated 30 C.F.R. 

§ 75.1725A. 2 

"" ct. § 15 .. 1725 Machinery and eq:uipment; operation 

and maintenance .. 

{a) Mobile and stationary machinery and 

equipment shall be maintained in safe operating 

condition and machinery or equipment in unsafe 

condition shall be removed from service immediately. 

1092 
3. Citation 3240616 3 alleges Giacomo violated Section 

102Cd)(l) of paragraph 5 of the Act. 

4. Petitioner, in her original petition for assessment of a 

civil penalty, alleged in part as follows: 

5. Evidence developed during MSHA's investigation of the circumstances surrounding the issuance of the Section 104(d)(l) Order indicates 

that Respondent kept the machine in production 

by placing a miner in the operator's compartment of the continuous-mining machine. 

5. On June 1, 1992, Petitioner amended paragraph 5 of the 

original petition to read as follows: 

3 Citation No. 3240616 reads as follows: 

Persons were req:uired by management to operate 

eq:uipment that was not maintained in safe operating condition 9 in that 9 based on statements 

received from both labor and managementu the 

Joy Continuous Miner in MMU 010-0 headgate was 

being operated on the 5-11-90 a.mo shift by the 

following methods: 

'!he remote control would not function to raise 

the miner head while mining coalo A man was 

placed in the cab to operate this function while 

the miner was being operated by remote control. 

This practice was dangerous due to two persons 

subject to being on opposite sides of the operating machine and accidental error. Also dangerous due to the fact that neither person had complete control at all times. Both the shift foreman and safety manager were present and had instructed the crew to proceed by this method. 

This is unwarrantable action CMSHA Citation No. 

32406160, at Section 1(8) "Condition or Practice"). 

1093 
5. Evidence developed during MSHA's investigation of the circumstances surrounding the issuance of Order No. 3240616 on May 14, 1990, indicates that Respondent knew the continuous mining machine was being operated manually by a miner 

from within the cab and by a miner operating the 

remote controls, and knowingly allowed or condoned hazardous operation of the machine in this 

manner. 

6. The assertion of informant's privilege has been formally 

raised by the Secretary of. Labor. 

7. The In Camera inspection reveals statements were made 

concerning the-operation of the continuous miner. Accordingly, 

the statements are relevant in these proceedings. 

8. The informants may not assist Respondent's defense but 

the applicability of the informant's privilege does not raise or 

fall upon the substance of a person's communication with the government officials concerning a violation of law. (Logan, 6 

FMSHRC at 2 525). 

9. In discovery in this case, Petitioner asked Respondent 

the following question and Respondent replied under oath as 

noted: 

2. State the name, job title, current business 

address, employer, and current telephone numbers for each person you believe to have knowledge of the facts concerning the violation alleged in Order Noo 32406160 

ANSWER~ I do not know what violation is alleged 

in Citation Order No. 3240616. I was not allowed to attend hearings regarding Citation Order Noo 3240616 9 and my attorney was forcibly 

removed from a hearing in which said Citation 

was presumably litigated and evidence regarding 

the Citation was to be heard. When I attended 

a Safety and Health Conference during which evidence of the alleged violation was supposed to 

have been presented, I advised that a decision 

has already been made that a violation had occurred and I would only be allowed to present 

a statement in mitigation. The Secretary of 

Labor has refused to provide me with the names 

1094 
of witnesses who could explain what I am accused of doing. Therefore, all I can do is read 

the Citation and try to guess how a violation is 

supposed to have occurred and what unnamed witnesses might speculate about what I did or did 

not do, thus resulting in the knowing authorization, ordering or carrying out of a violation 

of mandatory safety standards. The Citation alleges that the violation occurred on May 11, 

1990, when I was working as a foreman helping 

to remove the Longwall from the southwest Longwall section two of Wyoming Fuel Company's 

Golden Eagle Mine. Persons whom I believe to 

have been working on that date are: Bob Mattis, 

David Fagneta, Dan Renner, Keith Mantelli, 

Jack Feltzger, Jr., David Wakefield, Ed Shannon, 

John A. Garcia, James Sterns, Felix Martinez, 

Jim Paravecchio, w:tyne Schoupe, Bob Vigil, and 

Sam Henry. I do not·know the current job titles, 

current business addresses, employers, or current 

telephone numbers for the above-listed individuals. we are not currently employed by the same 

employer and do not work in the same mine. 

In answering Petitioner's Interrogatories, Giacomo stated 

under oath that he does not work for Wyoming Fuel Company nor 

does he presume to speak for Wyoming Fuel Company. 

11. The information sought here is not available from other 

sources since only Petitioner knows the names of the witnesses 

she intends to callo As a resultv Respondent has no other 

avenues available to discover such witnesseso 

120 Disclosure is essential to a fair determination of the 

issues since Giacomo will have an opportunity to depose Petitionergs witnesses and prepare his defense. 

Further Findings and Discussion 

Petitioner admits Giacomo is not an anployer or a coal mine 

operatore Further, it is admitted he does not work at the same 

mine with any individuals who might be called ~ the Petitioner 

as witnesses. (Petitioner's response, page 3; filed May 4, 1992). 

Nevertheless, Petitioner claims Giacomo is an "agent" within 

Commission Rule 59. 

1095 
It is true that Petitioner must prove Giacomo was an agent 

of the mine operator to establish a violation of Section llO(c). 

However, the foregoing admitted facts establish that Giacomo is 

not an agent of an operator within the meaning of Rule 59. 

Petitioner further asserts a possibility of retaliation 

exists against miners who might testify. 

I disagree. Giacomo is not a mine operator and does not 

work at the same mine as any individuals who might be called as 

witnesses. (Petitioner's Response, page 2, filed May 4, 1992). 

Merely working in the same geographic area as the Golden Eagle 

Mine is insufficient to establish the possibility of retaliation. 

Petitioner further states Respondent knows the "universe of 

all persons who may have information regarding this case" and the 

requested information is "available from sources other than the 

government." 

Contrary to Petitioner's position, a review of the In 

Camera material reveals two potential witness informants"""Who are 

not listed by Giacomo as persons having knowledge of the facts 

concerning the violation alleged. (See para. 9, supra, where 

Giacomo lists persons having knowledge of the facts). 

In sum, it is the Judge's view that the factual situation 

presented here involved "extraordinary circumstances" within the 

meaning of Commission Rule 59. Further, Respondent's need for 

the information is greater than the Secretary's need to maintain 

the privilege in order to protect the public interest. 

Accordinglyv I enter the followingg 

ORDER 

Respondentus motion to compel is GRANTEDo 

2o Within 15 days~ Petitioner is ORDERED to disclose 

the names of the individuals she intends to call as witnesses in 

this caseo 

3o The material submitted to the Judge for an In camera inspection is hereby SEALED. The following notation shall 

appear on the. sealed envelope: 

1096 
DOCUMENTS HEREIN WERE SEALED ON JUNE 4, 1992, 

BY ORDER OF mE PRESIDING JUDGE. A COPY OF 

THIS ORDER WAS AT'mCHED TO THE ENVELOPE SEALING 

SAID DOCUMENTS. 

4. The Judge has also signed the sealed envelope beneath 

the foregoing notation. 

Judge 

Distributiong 

Tana Mo Adde, Esq.u Office of the Solicitor, U.S. Department of 

Laboru 4015 Wilson Boulevard8 Arlington, VA 22203 

William C. Erwin, Esq., ERWIN & DAVIDSON, P.C., 243 Cook Avenue, 

P.O. Drawer B, R3.ton, NM 87740 

ek 

1097 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 12 1992 

IN RE: CONTESTS OF RESPIRABLE· ) 

DUST SAMPLE ALTERATION ) 

CITATIONS ) 

UTAH POWER & LIGHT COMPANY, 

MINING DIVISION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ENERGY WEST MINING COMPANY, 

Respondent 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

} 

} 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

MASTER DOCKET NO. 91-1 

CONTEST PROCEEDINGS 

Docket Nos. WEST 91-357-R 

through WEST 91-361-R 

Citation Nos. 9860864 

through 9860868 

Cottonwood Mine 

Docket Nos. WEST 91-362-R 

through WEST 91-364-R 

Citation Nos. 9860819 

through 9860821 

Docket Nos. WEST 91-467-R 

through WEST 91-468-R 

Citation Nos. 9862937 

through 9862938 

Docket No. WEST 92-31-R 

Citation No. 9862981 

Deer Creek Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 91-482 

A.C. No. 42-00121-037440 

Docket No. WEST 92-116 

A.C. No. 42-00121-037540 

Deer Creek Mine 

Docket No. WEST 91-483 

A.C. No. 42-0l944-03590D 

Cottonwood Mine 

1098 
BENTLEY COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BENTLEY COAL COMPANY, 

Respondent 

KENTUCKY PRINCE COAL COMPANY, 

Contestant ·-· 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

KENTUCKY PRINCE COAL COMPANY, 

Respondent 

) 

) CONTEST PROCEEDINGS 

) 

) Docket No. WEVA 91-783-R 

) Citation No. 9862628 

} 

) Long Run Deep Mine No. 1 

) 

) 

) 

) CIVIL PENALTY PROCEEDING 

) 

) Docket No. WEVA 92-316 

) A.C. No. 46-07609-035180 

) 

) Long Run Deep Mine No. 1 

) 

) 

) 

) CONTEST PROCEEDINGS 

t 

) Docket Nos. KENT 91-309-R 

) through KENT 91-310-R 

) 

) Citation Nos. 9858895 

) through 9858896 

) 

) Kentucky Prince Unit 

) Train Loadout 

) 

) Docket No. KENT 91-311-R 

) Citation No. 9858714 

) 

) Jeff Tipple Mine 

) 

) Docket No. KENT 91-312-R 

) citation No. 9859438 

) 

) Grae No. 2 Mine 

) 

) CIVIL PENALTY PROCEEDINGS 

) 

) Docket No. KENT 91-1166 

) A.C. No. 15-05151-035130 

) 

) Jeff Tipple Mine 

) 

) Docket No. KENT 91-1167 

) A.C. No. 15-11719-035180 

) 

) Kentucky Prince Unit 

) Train Loadout 

1099 
) 

) Docket No. KENT 91-1168 

) A.C. No. 15-16349-03526D 

) 

) Grae No. 2 Mine 

ORDER DENYING MOTIONS TO VACATE CITATIONS 

On May 4, 1992, Contestant Utah Power & Light, Mining 

Division (now known as Energy West Mining Company) 1; (Energy 

West) filed a motion for an order vacating the 11 citations 

issued by the Secretary of Labor (Secretary) to Contestant on 

April 4, 1991, June 7, 1991, and September 11, 1991. Each 

citation alleged a violation of 30 C.F.R. § 70.209(b) because the 

respirable dust sample submitted by Contestant had been altered 

by removing a portion of the dust from the sample. As grounds 

for the motion Contestant states that the Secretary failed to 

issue the citations with the "reasonable promptness" required by 

section 104(a) of the Mine Act. The motion was accompanied by a 

memorandum in support of the motion and an appendix including 

affidavits, MSHA documents, copies of correspondence 1 and 

excerpts of deposition testimony. on May 19, 1992, the Secretary 

filed a statement in opposition to the motion with an appendix 

including affidavits and excerpts of deposition testimony. 

on May 22, 1992, Contestants Bentley Coal Company (Bentley) 

and Kentucky Prince Coal Company (Kentucky Prince) filed a motion 

for an order vacating the five citations issued to Bentley and 

Kentucky Prince on April 4, 1991, alleging violations of 

30 C.F.R. §§ 70.209(b) or 71.209(b). The motion was accompanied 

by a memorandum and an appendix including an affidavit, MSHA 

documents 1 and discovery responses. On June 8, 1992, the 

Secretary filed a response to the motion. 

Docket No" WEST 92-31-R, Citation Noo 9862981 

Citation No. 9862981 was issued September 11, 1991. The 

Notice of Contest was filed by Utah Power & Light Company, Mining 

Division on October 9, 1991. The Secretary filed her answer on 

October 18r 19910 On November 4, 1991, Chief Judge Paul Merlin 

issued an order staying proceedings in this docket until the 

first decision is rendered in Master Docket No. 91-1. 

Docket No. WEST 92-31-R is not part of the Master Docket and 

has not been assigned to meo For these reasons, this order will 

1; The contested citations were issued to Utah Power & 

Light Company, Mining Division. The related civil penalty 

petitions were issued under Contestant's current name, Energy 

West Mining company. 

1100 
not consider the motion to vacate insofar as it relates to Docket 

No. WEST 92-31-R and Citation No. 9862981. 

Motion for Summary Decision 

The facts and legal principles applicable to these motions 

are similar to those involved in the motion to vacate citations 

filed by Southern Ohio Coal Company (SOCCO) and Windsor Coal 

Company (Windsor). On May 22, 1992, I issued an order denying 

the motions to vacate filed in those proceedings. As in the 

SOCCO and Windsor order, the motions to vacate citations here are 

treated as motions for summary decision under Commission Rule 

64(b). Resolving ambiguities in the Secretary's favor, the 

motions may be granted only if the entire record shows that there 

is no genuine issue as to any material fact, and movants are 

entitled to summary decision as a matter of law. 

Facts 

The samples which resulted in the citations contested by 

Energy West were taken between September 14, 1989, and March 26, 

1991. All but two of the citations were issued April 4, 1991. 

For the two samples taken March 25 and 26, 1991, the citations 

were issued June 7, 1991. Robert Thaxton, MSHA's Supervisory 

Industrial Hygienist and an authorized representative of the 

Secretary made the determination in the case of each sample that 

it showed an abnormal white center which established tampering. 

Thaxton received the first eight cited samples involved in these 

proceedings between September 27, 1989, and June 25, 1990. The 

samples taken March 25 and 26, 1991, were received by Thaxton on 

April 17, 1991. 

The samples which resulted in the citations contested by 

Bentley and Kentucky Prince were taken between August 24, 1989, 

and July 26 1 19900 The citations were all issued April 4, 1991. 

The samples were received by Thaxton between September 14, 1989, 

and August 20, 1990. 

With respect to the samples taken before November 1990, I 

found in the SOCCO/Windsor order that the Secretary's belief that 

the samples showed violations did not come about before November 

19900 The same findings apply here. Thus, for the purpose of 

ruling on the motions, the delay between the time the Secretary 

believed that violations occurred and the issuance of the 

citations was approximately 4 months. With respect to the 

samples from Energy West taken in March 1991, the delay was 

approximately 2 months (April 17 to June 7, 1991). I find that 

there is no genuine issue as to these material facts. 

1101 
Reasonable Promptness 

In my SOCCO/Windsor order, I concluded that the Secretary 

established adequate justification for her 4-month delay in 

issuing the contested citations, namely her wish to avoid 

premature disclosure of a pending criminal investigation. The 

same consideration applies to the motions filed by Energy West, 

Bentley, and Kentucky Prince with respect to the citations issued 

on April 4, 1991. For those citations, I conclude that the 

Secretary has established adequate justification for the delay in 

their issuance, namely the government's interest in avoiding 

disclosure of a pending criminal investigation. 

No such interest existed with regard to the two citations 

issued June 7, 1991. The only reason the Secretary has advanced 

for the delay in issuing them is her decision to issue citations 

in groups after sufficient numbers of violative samples were 

collected, which occurred every 2 to 3 months. I am not 

persuaded that the secretary needed 2 to 3 months after she 

determined that a violation occurred to administratively 

accomplish the issuance of a citation. Therefore, I conclude 

that the Secretary has failed to establish an adequate 

justification for her 2-month delay in issuing these contested 

citations. 

For all of the citations, I must determine whether the delay 

was prejudicial to the Contestants. See Old Dominion Power Co., 

6 FMSHRC 1886 at 1894 (1984), rev'd on other grounds sub nom., 

Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985); 

Emery Mining Corp. v. Secretary, 10 FMSHRC 1337 at 1354 (ALJ) 

(1988). Energy West has not asserted that the 2-month delay in 

issuing the citations on June 7, 1991, prejudiced its ability to 

defend itself o With respect to all the citations issued to 

Energy West, it advanced the same arguments advanced by socco and 

Windsor. As in the SOCCO/Windsor order, I conclude that 

prejudice has not been established. 

Contestants Bentley and Kentucky Prince state that mining 

operations in the subject mines have ceased ''and many--if not 

all--of the witnesses on whom Contestants would have relied are 

no longer available.ni The Bentley employees were terminated or 

transferred "in 199111 and the mine has been closed and reclaimed. 

The Secretary's response includes an affidavit that the mine was 

not abandoned until August, 1991. It further points out that the 

cited samples were taken by an independent contractor, and not by 

Bentley employees. Contestants state that operations ended at 

two of the Kentucky Prince mines in 1991 and most of the 

employees were terminated or transferred. In April 1992, 

Kentucky Prince was sold to a third party, and most of the 

employees involved in the dust sampling no longer work for 

Kentucky Prince. 

1102 
Contestants' affidavit does not specify the dates when 

mining operations at Bentley and Kentucky Prince ceased, only 

that it occurred in 1991. Because it is not clear whether it 

occurred during the period from November 1990 to April 1991, the 

ambiguity must be resolved in the Secretary's favor, i.e., that 

it occurred after April 4, 1991. Hence, prejudice has not been 

shown. The facts that coal extraction ceased at Kentucky Prince 

in January 1992, and that the mines were sold to a third party in 

April 1992 are not relevant to the question of prejudice since 

these events occurred after the citations were issued and, 

therefore, after the delay complained of. 

Based on the above considerations and the considerations in 

the SOCCO/Windsor order, I conclude that Contestants have not 

shown that the delays in issuing the contested citations were 

prejudicial to their ability to defend themselves in these 

proceedings, and consequently, they are not entitled to summary 

decision as a matter of law. 

ORDER 

Accordingly, the motions to vacate citations filed on behalf 

of Utah Power & Light/Energy West, Bentley, and Kentucky Prince 

are DENIED. 

,. ., ,· ,l 

tfdtJ?.t: 5 A-l-~1;_,z:; r,&,z,,,_ e,,f_ ;;J James A. Broderick 

' Administrative Law Judge 

Distribution~ 

Douglas N. White Esq. 1 Jerald S. Feingold, Esq., Mark R. 

Malecki 1 Esq., Office of the Solicitorv U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Timothy M. Biddle, Esq., Thomas C. Means, Esq., J. Michael Klise, 

Esq., Crowell & Moring, 1001 Pennsylvania Avenue, N.W., 

Washington, DC 20004 (Certified Mail) 

All others regular mail 

/fb 

1103 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 18 1992 

IN RE: CONTESTS OF RESPIRABLE ) 

DUST SAMPLE ALTERATION ) 

CITATIONS ) 

) 

METTIKI COAL CORP., ) 

Contestant ) 

v. ) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA), ) 

Respondent ) 

) 

) 

PERMAC, INC., ) 

Contestant ) 

v. ) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA), ) 

Respondent ) 

) 

RACE FORK COAL CORP., ) 

Contestant ) 

v. ) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA), ) 

Respondent ) 

) 

PONTIKI COAL CORP., ) 

Contestant ) 

v. ) 

) 

SECRETARY OF LABOR, ) 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA) , ) 

Respondent ) 

) 

Master Docket No. 91-1 

CONTEST PROCEEDINGS 

Docket Nos. YORK 91-28-R 

through YORK 91-29-R 

Citation Nos. 9859677 

through 9859678 

Mettiki Mine 

Docket No. VA 91-288-R 

Citation No. 9860990 

Prep Plant No. 1 

Docket .Nos. VA 91-239-R 

through VA 91-240-R 

Citation Nos. 9860988 

through 9860989 

Woodman Luke Prep Plant 

Docket Nos. KENT 91-440-R 

through KENT 91-441-R 

Citation Nos. 9858800 

through 9858801 

Pontiki No. 1 Mine 

1104 
WEBSTER COUNTY COAL CORP., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

WHITE COUNTY COAL CORP., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

METTIKI COAL CORP., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

PERMAC, INC. , 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

) Docket Nos. KENT 91-364-R 

) through KENT 91-378-R 

) 

) Citation Nos. 9858517 

) through 9858531 

) 

) Retiki Mine 

) 

) Docket Nos. KENT 91-379-R 

) through KENT 91-439 R 

) 

) Citation Nos. 9858575 

) through 9858635 

) 

) Dotiki Mine 

) 

) Docket Nos. LAKE 91-435-R 

) through LAKE 91-438 R 

) 

) Citation Nos. 9858487 

) through 9858490 

) 

) Pattiki Mine 

) 

) 

) CIVIL PENALTY PROCEEDINGS 

) 

) Docket No. YORK 91-44 

) A.C. No- 18-00621-037530 

) 

) Mettiki Mine 

) 

) 

) 

) Docket No. VA 91-558 

) A.C. No. 44-03236-035140 

) 

) Prep Plant No. 1 

) 

) 

) 

) 

) 

) Docket No. VA 91-559 

) A.C. No. 44-03010-03528D 

) 

) Woodman Luke Prep Plant 

) 

) 

1105 
RACE FORK COAL CORPORATION, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PONTIKI COAL CORP., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WEBSTER COUNTY COAL CORP., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WHITE COUNTY COAL CORP. 

Respondent 

) 

) 

) 

) Docket No. KENT 91-1056 

) k.C. No. 15-08413-036140 

) 

) Pontiki No. 1 Mine 

) 

) 

) 

) 

) 

) Docket No. KENT 92-102 

) A.C. No. 15-00672-036250 

) 

) Retiki Mine 

) 

) Docket Nos. KENT 91-1039 

) through KENT 91-1042 

) 

) A.C. No. 15-02132-036410 

) through 15-02132-036440 

) 

) Dotiki Mine 

) 

) Docket No. LAKE 91-713 

) A.C. No. 11-02662-036130 

) 

) Pattiki Mine 

) 

) 

) 

) 

ORDER DENYING MOTION 

TO VACATE CITATIONS 

On May 26, 1992, the above named Contestants led a motion to 

vacate the 87 citations issued to them by the Secretary of Labor on 

April 4, 1991. The citations alleged a violation of 30 c. F. R. 

§ 70.209(b) or § 71.209(b) because the respirable dust samples 

submitted by Contestants had been altered by removing a portion of 

dust from the sample. As grounds for the motion Contestants state 

that the Secretary failed to issue the citations with the 

"reasonable promptness" required by section 104 (a) of the Mine Act. 

The motion was accompanied by a memorandum in its support and a 

57 page appendix which included affidavits, MSHA documents, and the 

1106 
Secretary's response to discovery requests. The Secretary filed a 

response to the motion on June 8, 1992. 

Motion _for Summary Decision 

The facts and legal principles applicable to this motion are 

similar to those involved in the motion to vacate citations filed 

by Southern Ohio Coal Company (SOCCO) and Windsor Coal Company 

(Windsor) which was denied by an order issued May 22, 1992. As in 

the SOCCO/Windsar order, the m0tion ta vacate citations here is 

treated as a motion far summary decision under Commission Rule 

64(b). It may be granted only if the entire record shows that 

there is no genuine issue as to any material fact and movants are 

entitled to summary decision as a matter of law. 

Facts 

The respirable dust samples which resulted in the 8 7 contested 

citations were taken between August 15, 1989, and February 25, 

1991. Robert Thaxton made the determination in the case of each 

sample that it showed an abnormal white center which established 

tampering. Thaxton received the samples between August 31, 1989, 

and March 11, 1991. 

In November 1989, Howard Stone, Webster county Coal Safety 

Director, mailed the dust samples for the Dotiki Mine to MSHA. 

MSHA notified him of the results for all but one unit. When he 

asked MSHA about the omission, he was told that he had not 

submitted the correct number of samples. He therefore submitted a 

replacement sample. However, when the citations were issued on 

April 4, 1991, he noted that the sample for the allegedly missing 

unit was cited as exhibiting an abnormal white center. 

In early 1991, Alan Smith, Safety Director at Mettiki Coal 

Corporation, asked MSHA whether Mettiki had submitted any samples 

containing AWCs and he received a negative reply. However, Mettiki 

was issued two citations on April 4, 1991, for samples taken in 

February 1990 which had been reviewed by Thaxton in March 1990. 

Two potential witnesses for Contestants have died: the sole 

employee in the Safety Departments of Permac and Race Fork, who 

died in September 1991, and an employee of Webster County who was 

sampled in a designated occupation and who died in March 1991. 

Another potential witness of Webster County retired in December 

1991. I find that there no genuine issue as to these material 

facts. 

1107 
Reasonable Promptness 

In my SOCCO/Windsor order, I concluded that the Secretary 

established adequate justification for her 4-month delay in issuing 

the citations, namely, her·wish to avoid premature disclosure of a 

pending criminal investigation. The same consideration applies to 

the motions before me now. I conclude that the Secretary has 

established adequate justification for the delay in their issuance: 

the government's interest in avoiding disclosure of a pending 

criminal investigation. The same interest justifies the 

Secretary's concealment and disclaimer regarding the existence of 

AWCs in response to Contestants' inquiries. 

Contestants have advanced the same arguments concerning 

prejudice as were advanced by SOCCO and Windsor, with the 

additional argument that two potential witnesses (one for Permac 

and Race Fork, and one for Webster County) have died and clearly 

are not availaf>le to testify. -Although Elbert Asbury of Permac and 

Race Fork died almost 6 months after the citations were issued, 

during which time his testimony could have been preserved, and the 

testimony of Marvin Forbes (who died prior to the issuance of the 

citations) would be of dubious relevance (Forbes apparently was a 

sampled miner), it is hard to argue that their unavailability has 

not limited Contestants' capacity to defend themselves in these 

proceedings. The question is whether the limitation is so 

prejudicial that fairness requires that the citations be vacated. 

As I previously noted, since Asbury's death occurred after the 

citations were issued, his testimony could have been preserved. 

With respect to Forbes' death, Contestants' have not shown what 

Forbes' potential testimony might have been, or that he was indeed 

the subject of a cited sample. Therefore, I conclude that the 

Secretaryus delay not result in prejudice to Contestants, and 

that the proceedings can be fairly determined on their merits. 

Based on the above considerations and the considerations in 

the SOCCO/Windsor order, I conclude that Contestants have not shown 

that the delay in issuing the contested citations was udicial 

to their ab ity to defend themselves in these proceedings, and 

consequently, they are not entitled to summary decision as a matter 

of law. 

ORDER 

Accordingly, the motion to vacate citations filed on behalf of 

Contestants Mettiki, Permac, Race Fork, Pontiki, Webster County, 

and Wh County are DENIED. 

' f .· '' .. ' 1 ;{.·'i f I <.' -~ }'-1"" 

I .j James A. Broderick 

Administrative Law Judge 

1108 
Distribution: 

Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the 

solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail)' 

Timothy M. Biddle, Esq., Thomas c. Means, Esq., J. Michael Klise, 

Esq., Crowell & Moring, 1001 Pennsylvania Avenue, N. W., Washington, 

D.C. 20004 (Certified Mail) 

Susan E. Chetlin, Esq., MAPCO Coal, Inc., 2525 Harrodsburg Road, 

Suite 300, Lexington, KY 40504-3359 (Certified Mail) 

All others Regular Mail 

/fb 

1109 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUN 2 4 1992 

IN RE: CONTESTS OF RESPIRABLE DUST 

SAMPLE ALTERATION CITATIONS 

Master Docket No. 91-1 

ORDER GRANTING MOTION TO CONDUCT DEPOSITIONS 

.OF NON-EXPERT WITNESSES OUT OF TIME 

on June 3, 1992, Contestants represented by Jackson & Kelly 

and included in Docket No. KENT 91-265-R et al. (Contestants) 

filed a motion for an order allowing them to conduct joint 

depositions of non-expert witnesses L A. Bassett, Jr., and 

Raymond J. Carroll out of time. On June 10, 1992, Contestants 

filed an amended motion seeking an order allowing them to conduct 

joint depositions of non-expert witnesses Carter Elliott, 

I. A. Bassett, Jr., and Raymond Carroll. The amended motion was 

served by mail on counsel for the Inspector General, U.S. 

Department of Labor (OIG) on June 8, 1992. Contestants also seek 

a subpoena duces tecum compelling Inspector General 

Julian W. De La Rosa to produce all documents in his possession 

concerning MSHA Internal Investigation No. 890014, OIG Case No. 

30-0801-0036 relating to the investigation of alleged tampering 

with coal dust cassette samples. 

The three named proposed witnesses are stated to be in the 

OIG and to have been involved in the investigation of alleged 

tampering of coal dust samples taken by MSHA inspectors. 

On October 29, 1991, I issued an order granting the OIG 

leave to enter a special appearance to oppose the motions of 

certain Contestants to compel testimony of Robert Thaxton. On 

March 16, 1992, the OIG withdrew its opposition to Contestantsu 

motion to compel testimony of Thaxton. Action on the motion to 

compel was stayed by order issued November 20, 1991. The OIG 

withdrew its opposition because its investigation was closed on 

or before February 27, 1992, after it found no evidence of 

criminal wrongdoing or official misconduct on the part of MSHA 

inspectors who submitted coal dust samples displaying abnormal 

white centers. 

The instant motion states that on March 13, 1992, counsel 

for the Secretary informed the court and contestants' counsel 

that the OIG completed its investigation and also informed the 

court and counsel that the Secretary is no longer asserting 

investigative privilege with respect to the OIG investigation. 

This was subsequent to January 31, 1992, the deadline for joint 

non-expert witness depositions in the Discovery Plan. The 

1110 
Secretary has not responded to the motion. 

I conclude that Contestants have shown good cause for 

conducting the depositions out of time. Therefore the motion is 

GRANTED, and subpoenas are issued herewith in accordance with 

contestants amended request for subpoenas. 

This order gives Contestants the right to conduct 

depositions of the three named OIG employees, and to require the 

Inspector General to respond to the subpoena duces tecum. It 

does not, of course, preclude the Secretary from asserting any 

applicable claim of privilege with respect to any question asked 

at the depositions or any documents sought to be examined and 

produced. 

Distribution: 

J:Lviu?.-S.' _A/8,-z;rdi,;'1 el_ 

James A. Broderick 

Administrative Law Judge 

Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Laura E. Beverage, Esq., David J. Hardy, Esq., Jackson & Kelly, 

P. Oo Box 553; Charleston, WV 25322 (Certified Mail} 

Sylvia Horowitz, Esqo, UoSo Department of Laboru 200 Constitution 

Avenue, NW, Room S-1305, Washington, D.C. 20210 (Certified Mail) 

All others Regular Mail 

/fas 

1111 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

dUN 301992 

IN RE: CONTESTS OF RESPIRABLE ) Master Docket No. 91-1 

DUST SAMPLE ALTERATION ) 

CITATIONS ) 

ORDER 

The commission remanded this matter to me by its decision 

issued June 29, 1992, for a ruling on the Secretary's claim of 

attorney work product privilege to support her refusal to 

disclose documents 3, 365, 366 1 367, 401 and 424. The Commission 

also directed me to rule on whether Rule 6(e) of the Federal 

Rules of Criminal Procedure bars disclosure of folders 11 and 12 

of document 406. 14 FMSHRC (1992). 

To assist me in carrying out the terms of the remand, I 

direct the Secretary to resubmit documents 3, 365, 366, 367, 401 

and 424 to me on or before July 10, 1992, for inspection 

in camera. Contestants may on or before the same date file a 

motion for in camera inspection of any other document concerning 

which the Secretary's claim of privilege was upheld. I also 

direct the Secretary to respond to my letter of June 18, 1992, 

concerning the present status of any grand jury investigation. 

Finally, I direct that the parties file on or before 

July 15, 1992 memoranda in support of their respective positions 

on the Secretary's work produ~t privilege claim, and on the 

applicability of Rule 6{e) of the Federal Rules of Criminal 

Procedure. 

j d1/".u . .:s A-fj~-cck1/l~:/Z_- James A. Broderick 

Administrative Law Judge 

1112