APRIL2004 

COMMISSION DECISIONS 

04-05-2004 

04-05-2004 

04-05-2004 

04-06-2004 

04-06-2004 

04-06-2004 

04-06-2004 

04-15-2004 

04-22-2004 

Double J Sand & Rock 

Christensen Construction & Gravel, Inc. 

Jerry Lee Wildey, employed by Stewart 

Excavating, Inc. 

Scott Anderson Trucking 

Stillwater Asphalt 

Highlands Mining & Processing Co., Inc. 

Double J Sand & Rock 

Moab Salt, UC. 

John Richards Construction 

ADMINISTRATIVE LAW .IlJDGE DECISIONS 

04-12-2004 Charles Conn et al, employed by 

Rockhouse Energy Mining Company 

04-26-2004 Georges Colliers, Inc. 

04-26-2004 Sec. Labor on behalf of Christopher Wright 

v. Americold Logistics UC. 

i 

WEST 2003-124-M 

WEST 2004-117-M 

WEST 2004-157-M 

WEST 2003-11-M 

PENN 2003-40-M 

KENT 2002-242 

WEST 2004-213-M 

WEST 2004-130-M 

WEST 2000-168-M 

Pg.325 

Pg.329 

Pg.333 

Pg.337 

Pg.341 

Pg.345 

Pg.349 

Pg.353 

Pg.357 

KENT 2002-356 Pg. 361 

EAJ 2002-2 Pg. 371 

CENT 2004-110-DM Pg. 377 

APRIL 2004 

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

Secretary of Labor, MSHA v. Southwest Concrete & Paving, Inc., Docket No. 

CENT 2004-49-M. (Chief Judge Lesnick, unpublished Settlement Decision issued 

February 26, 2004) 

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

Secretary of Labor, MSHA v. Cannelton Industries, Inc., WEV A 2002-111-R, etc. 

(Petition for Reconsideration of the Commission's decision issued March 12, 2004) 

Secretary of Labor, MSHA v. Hansen's Truck Stop, Inc., Docket No. WEST 2003-284-M, etc. 

(Judge Zielinski, March 9, 2004) 

Secretary of Labor, MSHA v. John Richards Construction, Docket No. WEST 2000-168-M, etc. 

(Judge Manning, September 13, 2001. The Commission granted a limited request for appeal on 

July 23, 2002) 

ii 

COMlv.IISSION DEQSIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DOUBIB J SAND & ROCK 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 5, 2004 

Docket No. WEST 2003-124-M 

A.C. No. 02-02638-05509 

Docket No. WEST 2003-125-M 

A.C. No. 02-02638-05510 

Docket No. WEST 2003-126-M 

A.C. No. 02-02638-05511 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (1994) ("Mine Act"). 1 On December 23, 2002, the Commission received from 

Double J Sand & Rock ("Double J") correspondence which we construe as a motion to reopen 

three penalty assessments that had become final orders of the Commission pursuant to section 

105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On December 14, 2001, and August 9, 2002, the Department of Labor's Mine Safety and 

Health Administration ("MSHA") issued three proposed penalty assessments (A.C. Nos. 

02-02638-05509, 02-02638-05510, and 02-02638-05511) to Double Jin La Paz County, 

1 Pursuant to Commission Procedural Rule 12, on our own motion, we hereby 

consolidate docket numbers WEST 2003-124-M, _WEST 2003-125-M, and WEST 2003-126-M, 

all captioned Double J Sand & Rock and all involving issues similar to those addressed in this 

order. 29 C.F.R. § 2700.12. 

325 
Arizona In its motion, Double J contests the merits of the underlying violations and complains 

about the MSHA inspector's behavior. Mot. Double J attached to its request a copy of a letter, 

dated September 7, 2001, that it sent to MSHA challenging the citations. The Secretary states 

that she does not oppose Double J's request for relief. 

We have held that in appropriate circumstances, we possess jurisdiction to re?pen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the ~ommission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

326 
Double J has provided no explanation for its failure to timely contest the proposed 

assessments. On the basis of the present record, we are thus unable to evaluate the merits of 

Double J's position. We hereby remand this matter to the Chief Administrative Law Judge for a 

determination of whether good cause exists for Double J's failure to timely contest the penalty 

proposal and whether relief from the final order should be granted. If it is determined that such 

relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's 

Procedural Rules, 29 C.F.R. Part 2700. 

~~~ Michael F. S" 

327 
Distribution 

James E. Jones 

Double J Sand & Rock 

P.O. BoxJ 

Parker, AZ. 85344 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 2200 Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

328 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 5, 2004 

Docket No. WEST 2004-117-M 

A.C. No. 42-01828-05513 

CHRISTENSEN CONSTRUCTION 

AND GRAVEL, INC. 

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

ORDER 

BY THE CO:Mlv1ISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (1994) ("Mine Act"). On January 20, 2004, the Commission received from 

Christensen Construction and Gravel, Inc. ("Christensen") a request to reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

In its request, Christensen states that it failed to contest in a timely manner because it 

confused the present penalty assessment with an earlier one that it had just settled, which was for 

a similar amount. Mot. It further asserts that, sometime later, Christensen realized its mistake 

and contacted the Commission. Id. Christensen did not attach any supporting documentation to 

its request. The Secretary states that she does not oppose Christensen's request for relief. 

329 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc. , 15 FMSHRC 782, 786-89 (May 1993) ("/WR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or.mistake. See 29 C.F.R. 

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

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

330 
Having reviewed Christensen's request, in the interests of justice, we remand this matter 

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

Christensen's failure to timely contest the penalty proposal and whether relief from the final 

order should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

331 
Distribution 

Bert Z. Christensen, Vice President 

Christensen Construction & Gravel, Inc. 

2151North600 West 

Logan, UT 84321 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22ru1 Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Com.mission 

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

Washington, D.C. 20001-2021 

332 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 5, 2004 

Docket No. WEST 2004-157-M 

A.C. No. 24-02117-09474 A 

JERRY LEE WILDEY, employed by 

STEW ART EXCAVATING, INC. 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (1994) ("Mine Act"). On January 20, 2004, the Commission received from Jerry 

Lee Wildey, Safety Coordinator and Crusher Foreman of Stewart Excavating Inc., 

correspondence which we construe as a motion to reopen a penalty assessment for a violation of 

section llO(c) of the Mine Act, 30 U.S.C. § 820(c), that had become a final order of the 

Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an individual charged with a violation under 

section 110( c) has 30 days following receipt of the Secretary of Labor's proposed penalty 

assessment within which to notify the Secretary that he or she wishes to contest the proposed 

penalty. 30 U.S.C. § 815(a); see also 29 C.F.R. § 2700.26. If the individual fails to notify the 

Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 

U.S.C. § 815(a); 29 C.F.R. § 2700.27. 

On September 30, 2003, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued a proposed penalty assessment (A.C. No. 24-02117-09474A) 

to Wildey. In his motion, Wildey, who is proceeding prose, states that he was unable to 

determine the appropriate appeal process to challenge the assessment and that on October 19, 

2003, he sent a certified letter to the MSHA Office of Assessments discussing the violations and 

333 
requesting lower penalties. Mot. at 1 & attach. Wildey states that in November 2003, he 

received a phone call from the Office of Assessments, which informed him that it had received 

his letter but could not reduce the penalties. Id. at l. Wildey further asserts that he was then 

referred to a number of MSHA district offices and that after speaking with th()se offices, was 

again referred to the Office of Assessments where he had started in the first place. Id. Only then 

did the Office of Assessments suggest that Wildey contact the Commission for relief. Id; The 

Secretary states that she does not oppose Wildey's request for relief. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section lOS(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

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

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and th'at, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

334 
Having reviewed Wildey's motion, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Wildey's 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

-~y<7 Robert H. Beatty, Jr., COIIlillis:Oller ~ 

335 
Distribution 

Mr. Jeny Lee Wildey 

222 Blue Lane 

Hamilton, MT 59840 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 2200 Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

336 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA) 

v. 

SCOTT ANDERSON TRUCKING 

601 NEW JERSEY AVENUE, NW 

SUITE95o0 

WASHINGTON, DC 20001 

April 6, 2004 

Docket No. WEST 2003-11-M 

A.C. No. 26-00827-05501 A933 

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, 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 seq. (1994) ("Mine Act"). On December 13, 2002, former Chief 

Administrative Law Judge David Barbour issued to Scott Anderson Trucking ("Anderson") an 

Order to Show Cause for failure to answer the Secretary of Labor's petition for assessment of 

penalty. On March 12, 2003, Chief Judge B~bour issued an Order of Default dismissing this 

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

On June 13, 2003, the Commission received from Anderson a letter setting forth its 

reasons for failing to answer the Secretary's petition for assessment of penalty and to respond to 

the judge's show cause order. Mot. Anderson states that it negotiated a settlement with the 

Secretary in which it agreed to pay civil penalties in the sum of $721 instead of the proposed 

penalties of $1442. Id.; Mot. to Correct Caption and Approve Settlement at 2. Anderson 

submits that on April 24, 2003, it paid the settlement amount of $721. Mot. It states that the 

Secretary's counsel apparently failed to file the settlement motion in a timely manner because, on 

March 28, 2003, the operator received the judge's default order, directing Anderson to pay 

penalties in the amount of $1442. Id.; Default Order dated March 12, 2003. Anderson 

subsequently received a letter from Judge Barbour stating ~at the settlement motion was filed on 

March 31, 2003, after the judge had issued the default order. Letter from Judge Barbour dated 

May 28, 2003. Finally, Anderson suggests that some confusion in these proceedings may have 

337 
been attributable to the use of an incorrect case number in the Secretary's petition for assessment 

of penalty. Mot. Anderson attached to its letter a copy of Judge Barbour's letter dated May 28, 

2003; an Unopposed Motion to Correct Caption and Approve Settlement; and the judge's order 

of default. 

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

12, 2003. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural rules, 

relief from a judge's decision may be sought by filing a petition for discretionary review within 

30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does 

not direct review within 40 days of a decision's issuance, it becomes a final decision of the 

Commission. 30 U.S.C. § 823(d)(l). The Commission has not directed review of the judge's 

order, which became a final order of the Commission on April 21, 2003. 

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

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

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

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

Federal Rules of Civil Procedure"); Highlands Mining & Processing Co. , 24 FMSHRC 6t?.':.. !"_.;:/> 

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

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

reopened and appropriate proceedings on the merits pennitted. See Coal Prep. Servs., Inc., 17 

FMSHRC 1529, 1530 (Sept. 1995). 

338 
Having reviewed Anderson's request, in the interest of justice, we hereby remand this 

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

to excuse Anderson's failure to respond to the show cause order and for further proceedings as 

appropriate. 

x C\ a~.h ,_ 

MichaelF: 

Robert H. Beatty, Jr., CoIDilllSSloner 

M~!:co~---

339 
Distribution 

Scott Anderson, President 

Scott Anderson Trucking 

875 N. Redwood Road 

N. Salt Lake, UT 84054 

Jan Coplick, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

71 Stevenson St., Suite 1110 

San Francisco, CA 94105 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 2200 Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

340 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

STILLWATER ASPHALT 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 6, 2004 

Docket No. PENN 2003-40-M 

A.C. No. 36-08557-05504 

Docket No. PENN 2003-41-M 

A.C. No. 36-08557-05505 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (1994) ("Mine Act"). 1 On November 14, 2002, the Commission received from 

Stillwater Asphalt correspondence which we construe as a motion to reopen two penalty 

assessments that had become final orders of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On April 19 and May 31, 2002, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued to Stillwater Asphalt two proposed penalty assessments (A.C. 

Nos. 36-08557-05504 and 36-08557-05505). In its motion, Stillwater Asphalt states that the 

company ceased operations as of December 31, 2001. Mot. No documentation was attached to 

1 Pursuant to Commission Procedural Rule 12, on our own motion, we hereby 

consolidate docket numbers PENN 2003-40-M and PENN 2003-41-M, both captioned Stillwater 

Asphalt and both involving issues similar to those addressed in this order. 29 C.F.R. § 2700.12. 

341 
Stillwater Asphalt's motion. The Commission received a response from the Secretary of Labor 

stating that, because Stillwater Asphalt has identified no grounds for reopening the penalty 

assessments, she requires additional information before she can express her position on the 

operator's motion. Sec'y Resp. at 1-2. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

342 
Stillwater Asphalt has provided no explanation for its failure to timely contest the 

proposed assessments. On the basis of the present record, we are thus unable to evaluate the 

merits of Stillwater Asphalt's position. We hereby remand this matter to the Chief . 

Administrative Law Judge for a determination of whether good cause exists for Stillwater 

Asphalt's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

343 
Distribution 

Robert Vincent 

Stillwater Asphalt 

P.O. Box 330 

Benton, PA 17814 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22°d Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

344 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

AD.MINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 6, 2004 

Docket No. KENT 2002-242 

A.C. No. 15-16011-03530 

HIGHLANDS MINING & PROCESSING 

COMPANY, INC. 

Docket No. KENT 2002-243 

A.C. No. 15-16011-03531 

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

ORDER 

BY THE COMMISSION: 

These civil penalty proceedings arise under the Federal Mine Safety and Health· Act of 

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). 1 On July 25, 2002, former Chief 

Administrative Law Judge David Barbour issued to Highlands Mining & Processing Company, 

Inc. ("Highlands") an Order to Show Cause in each of these two cases for failure to answer the 

Secretary of Labor's petitions for assessment of penalty. On September 16, 2002, Chief Judge 

Barbour issued an Order of Default in each case dismissing the civil penalty proceedings for 

failure to respond to his show cause orders. 

On October 7, 2002, the Commission received correspondence from Robert Stump, 

president of Highlands, which we construe as a request for relief from the default orders in each 

case. Mot. In its request, Highlands states that it seeks reconsideration of the default orders 

because "our representative at this time was ill ... and we were unaware of the proper 

procedures in this matter." Id. Highlands attached to its request an undated letter to the 

1 Pursuant to Commission Procedural Rule 12, on our own motion, we hereby consolidate 

docket numbers KENT 2002-242 and KENT 2002-243, both captioned Highlands Mining & 

Processing Company, Inc., and both involving issues similar to those addressed in this order. 

29 C.F.R. § 2700.12. 

345 
Secretary of Labor's counsel summarizing the circumstances of each citation. Attach. The 

Secretary has not responded to Highland's request for relief. 

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

September 16, 2002. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's 

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

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

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

it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). The Commission has not 

directed review of the judge's orders here, which became final decisions of the Commission on 

October 26, 2002. 

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

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

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

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

Federal Rules of Civil Procedure"); Jim Walter Resources, Inc., 15 FMSHRC 782, 787 (May 

1993). We have also observed that defauit is a harsh remedy and.that, if the defaulting party can 

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

appropriate proceedings on the merits pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 

1530 (Sept. 1995). 

346 
Having reviewed Highland's request, in the interests of justice, we hereby remand this 

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

to excuse Highland's failure to respond to the show cause orders and for further proceedings as 

appropriate. 

Robert H. Beatty, Jr., Commissioner 

Michael G. Yo 

347 
Distribution 

Robert Stump, President 

Highlands Mining & Processing Co., fuc. 

P.O. Box 280 

Whitesburg, KY 41858 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22od Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

348 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DOUBLE J SAND & ROCK 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

April 6, 2004 

Docket No. WEST 2004-213-M 

A.C. No. 02-02638-05513 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (1994) ("Mine Act"). On May 6, 2003, the Commiss1on received from Double J 

Sand & Rock ("Double J") correspondence which we construe as a motion to reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On or around February 10, 2003, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued to Double J a proposed penalty assessment (A.C. No. 

02-02638-05513). On April 9, 2003, Double J, by its owner, Jim Jones, submitted a request for 

hearing ("green card") to contest the proposed assessment, which MSHA received on April 12, 

2003. However, the penalty assessment had become a final order of the Commission, pursuant to 

section 105(a), thirty days after Double J received it. In Double J's motion, Jones states that on 

January 11, 2003, he and his wife were involved in a plane crash, which resulted in his wife's 

death, leaving him unable to attend to business for several months. Mot. Double J attached to its 

request a copy of a letter to MSHA's Civil Penalty Compliance Office in Arlington, Virginia 

349 
dated April 9, 2003, protesting the citations, a letter from MSHA dated April 18, 2003, 

acknowledging Double J's late contest letter, and a copy of Barbara L. Jones' death certificate. 

The Secretary states that she does not oppose Double J's request for relief. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

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

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995.). 

350 
Having reviewed Double J's motion, in the interests of justice, we remand this matter to 

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

J's failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

351 
Distribution 

James E. Jones 

Double J Sand & Rock 

P.O. Box 3337 

Parker, AZ 85344 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

352 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MOAB SALT, LLC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 15, 2004 

Docket No. WEST 2004-130-M 

A.C. No. 42-00155-12176 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (1994) ("Mine Act"). On January 5, 2004, the Commission received from Moab 

Salt, LLC. ("Moab Salt") a motion made by counsel to reopen a penalty assessment that had 

become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. 

~ 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

In its motion, Moab Salt requests relief from the final order. Mot. Moab Salt states that 

on August 8, 2003, it filed a Notice of Contest challenging Order No. 7907295 as well as three 

other citations and orders presently before the Commission. Id. at 1-2. The contest proceedings 

were assigned to Administrative Law Judge Richard Manning. Id. On October 8, 2003, the 

Department of Labor's Mine Safety and Health Administration ("MSHA") modified Order No. 

7907295 to a citation issued under Mine Act section 104(a), 30 U.S.C. § 814(a). On October 30, 

2003, MSHA issued a proposed penalty for Citation No. 7907295, in the amount of $60.00 (A.C. 

No. 42-00155-12176). Id. at 2. Moab Salt asserts that as a result of internal misunderstanding 

and confusion over the status of the citation at issue, on or about December 3, 2003, it submitted 

353 
a check in the amount of $60.00 as payment for Citation No. 7907295. Id. Moab Salt claims 

that its intent to contest Citation No. 7907295 is clear, as it filed a pre-penalty Notice of Contest. 

Id. at 2. It did not attach any supporting documentation to its motion. The Secretary states that 

she does not oppose Moab Salt's request for relief. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

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

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. 

354 
Having reviewed Moab Salt's motion, in the interests of justice, we remand this matter to 

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

Salt's failure to timely contest the penalty proposal for Citation No. 7907295 and whether relief 

from the final order should be granted. If it is determined that such relief is appropriate, this case 

shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 

2700. 

355 
Distribution 

Laura E. Beverage, Esq. 

Jackson Kelly, PLLC 

1099 181h Street, Suite 2150 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22203 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

601 New Jersey Avenue, Suite 9500 

Washington, D.C. 20001-2021 

356 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTII 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 22, 2004 

Docket No. WEST 2000-168-M 

A.C. No. 24-02070-05503 

Docket No. WEST 2000-470-M 

A.C. No. 24-02070-05504 

JOHN RICHARDS CONSTRUCTION 

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

ORDER 

BY THE COM1\1ISSION: 

On October 30, 2001, the Commission received from John Richards Construction 

("Richards Construction") a request for relief from a final Commission decision. On July 23, 

2002, a majority of the Commission issued an order granting the request for the limited purpose 

of affording the operator an opportunity to provide the Commission with information regarding 

the filing of its request. On August 5, 2002, the Commission received from Richards 

Construction the additional information. On October 1, 2002, the Commission received from the 

Secretary of Labor an opposition to Richards Construction's request for relief. 

357 
Having considered the matter, we hereby deny the request for relief. 

Michael ~Quffy. Chairman ~ 

358 
Distribution 

John Richards 

John Richards Construction 

P.O. Box 316 

Seeley Lake, MT 59868 

Jack Powasnik, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 221111 Floor 

Arlington, VA 22203 

Administrative Law Judge Richard Manning 

·Federal Mine Safety and Health Review Commission 

1244 Speer Boulevard, Suite 280 

Denver, CO 80204-3582 

359 
360 
ADMINISTRATIVE LAW JUDGE DEOSIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

April 12, 2004 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CHARLES CONN, employed by 

ROCK.HOUSE ENERGY MINING CO., 

CHARLES MORLEY, employed by 

ROCK.HOUSE ENERGY MINING CO., 

:MITCHELL SAIMONS, employed by 

ROCKHOUSE ENERGY MINING CO., 

TOMMY FLUTY, employed by 

ROCKHOUSE ENERGY MINING CO., 

ROGER MANN, employed by 

ROCKHOUSE ENERGY MINING CO., 

GARY VARNEY, employed by 

ROCK.HOUSE ENERGY MINING CO., 

and, 

ROCK.HOUSE ENERGY MINING CO., 

Respondents 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2002-356 

A.C. No. 15-17651-03599 A 

Docket No. KENT 2003-161 

A.C. No. 15-17651-03624 A 

Docket No. KENT 2002-357 

A.C. No. 15-17651-03600 A 

Docket No. KENT 2002-358 

A.C. No. 15-17651-03601 A 

Docket No. KENT 2003-162 

A.C. No. 15-17651-03625 A 

Docket No. KENT 2003-163 

A.C. No. 15-17651-03626 A 

Docket No. KENT 2003-164 

A.C. No. 15-17651-03627 

Docket No. KENT 2003-5 

A.C. No. 15-17651-03602 

MineNo.1 

DECISION 

Appearances: Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Petitioner; 

Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, Charleston, West 

Virginia, for Respondent. 

Before: Judge Hodgdon 

361 
These consolidated cases are before me on Petitions for Assessment of Civil Penalty 

brought by the Secretary of Labor, acting through her Mine Safety and Health Administration 

(MSHA), against Rockhouse Energy Mining Company and Charles Conn, Charles Morley, 

Mitchell Salmons, Tommy Fluty, Roger Mann and Gary Varney, all employees of Rockhouse, 

pursuant to sections 105 and llO(c) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. §§ 815 and 820(c). The petitions allege 13 violations of the Secretary's mandatory 

health and safety standards by Rockhouse, two violations by Conn and one each by Morley, 

Salmons, Fluty, Mann and Varney. The Secretary seeks penalties of $67,000.00 against 

Rockhouse, $1,500.00 against Conn, $800.00 against Morley, $500.00 against Salmons, 

$2,000.00 against Fluty, $500.00 against Mann and $2,000.00 against Varney. A hearing 

was held in Pikeville, Kentucky. For the reasons set forth below, I dismiss the petitions against 

Conn, Morley, Salmons, Fluty, Mann and Varney, vacate Order No. 7378603 in Docket No. 

KENT 2003-5, affirm the remaining orders and citations in Docket No. KENT 2003-5 and assess 

a penalty of $42,700.00 against Rockhouse. 

Settled Orders and Citations 

Prior to the hearing, the parties submitted an agreement to settle 11 of the 13 orders and 

citations in Docket No. KENT 2003-5. The agreement stated that the Secretary had vacated 

Order No. 7383667. It proposed a reduction in penalty from $45,000.00 to $33,700.00 for the 

other ten orders and citations. After considering the representations and documentation 

submitted, I concluded that the settlement was appropriate under the criteria set forth in section 

l lO(i) of the Act, 30 U.S.C. § 820(i), and accepted the settlement. (Tr. 16.) 

At the commencement of the hearing, the parties stated that they had also settled Order 

No. 7378610, in Docket No. KENT 2003-5, and the individual civil penalty dockets, Docket 

Nos. KENT 2003-161, KENT 2003-162, KENT 2003-163 and KENT 2003-164, associated with 

that order. The agreement provided that Secretary agreed to dismiss the individual cases and 

Rockhouse agreed to pay the proposed penalty of $9,000.00 for the order in full. Again, after 

considering the representations and documentation submitted, I concluded that the settlement 

was appropriate under the l lO(i) criteria and accepted the settlement. (Tr. 20.) 

The provisions of the agreements will be included in the order at the end of this decision. 

With the settlements, the only thing remaining to be tried was Order No. 7378603 in Docket No. 

KENT 2003-5 and the associated individual cases against Conn, Morley and Salmons, Docket 

Nos. KENT 2002-356, KENT 2002-357 and KENT 2002-358. 

Back&round 

Rockhouse.Energy Mining Company operates Mine No. 1, an underground coal mine, in 

Pike County, Kentucky. The mine is a fairly large one and employed around 120 employees in 

the surniner of 2001. At that time, it used both continuous miner and longwall miner mining 

methods. The one and two sections consisted of longwall panels and the three section was being 

362 
mined by a continuous miner in the room and pillar configuration prepatory to also becoming a 

longwall section. 

A roof fall occurred during the second shift on July 17, 2001. The fall happened in the 

No. 3 belt entry beginning in crosscut 52 and heading up the entry toward crosscut 53. Charles 

Morley, the second shift mine foreman, arrived at the fall site sometime between 9:30 p.m. and 

10:00 p.m. He had the area "dangered off," then he called the superintendent to tell him about 

the fall and to have the superintendent notify the state and federal mine agencies. Morley next 

had a scoop brought up to the area and he began cleaning up around the edges of the fall in 

crosscut 52. He took the material that he cleaned up back down the track entry to crosscut 50 and 

deposited it by a stopping that was between the return airway and the track entry. Morley was 

still trying to clean up with the scoop when the third shift arrived in the area between 12:00 and 

12:30 am. 

Mitchell Salmons was foreman of the third shift move crew. He arrived at crosscut 52 

with his crew, Robert Crabtree, Tracy Dingess and Charles Sturgill. Charles Conn, also a move 

crew foreman on the third shift, was in the mantrip with Salmons and his crew. Salmons and 

Conn proceeded from the track entry up crosscut 52 to examine the fall. Crabtree, Dingess and 

Sturgill stayed in the track entry and helped unload machinery and supplies as they were brought 

to the area. 

Morley stopped working with the scoop shortly after the third shift arrived and the scoop 

was taken back to the charger to be recharged. The three foremen then waited for a roof bolter to 

be brought to the site. The bolter finally arrived sometime around 4:00 a.m. After it was set-up, 

Conn began installing bolts. He put ten bolts, in two rows, across crosscut 52, by the edge of the 

fall, and ten bolts, in two rows, across the belt entry, across the front of the fall. Then he put 11 

bolts around the inside edge of where the roof had fallen. Salmons helped him with this until he 

left at 4:30 a.m. to perform a preshift examination of another section. 

When Conn finished bolting, Morley brought the scoop back up and began more cleaning 

around the edge of the fall. Because the scoop was not fully charged, he began putting the 

material that he cleaned up on the right side of the fall area by the stopping in crosscut 52 that 

separated the belt entry and the intake airway. He stopped around 5:30 a.m. and attempted to 

take the scoop back to the charger. He did not make it, however, as the scoop became "hung-up" 

on the track. 

Morley, who had been working since the second shift, then left for home. No further 

clean-up was done on the roof fall. The foremen had cleaned up about one third of the fall 

material. 

MSHA Inspector William Cole was assigned to investigate the roof fall and arrived at the 

mine about 8:30 a.m. on July 18. He went into the mine with Kentucky Inspector Randal Smith, 

Gary Goff, Mine Superintendent, and Gary Varney, first shift foreman. They met the third shift 

363 
coming out, so the third shift had to back up several crosscuts where both mantrips could park. 

The inspection team then walked up the belt entry to the fall. 

Based on his investigation, Inspector Cole concluded that Conn, Morley and Salmons had 

been working under unsupported roof. Consequently, he issued Order No. 7378603, which 

alleged a violation of section 75.202(b) of the Secretary's regulations, 30 C.F.R. § 75.202(b), 

because: 

Persons were allowed to work inby permanent roof support 

in the No. 3 belt entry where a roof fall had occurred. Evidence 

showed that the roof fall was cleaned from the left side of the fall 

pushing the rock into the right crosscut placing the scoop operator 

inby permanent roof support[.] The cleaned area of the fall was 16 

feet as measured from the last row of permanent roof support to the 

toe of the fall. There was oil deposited on the mine floor where 11 

roof bolts had been installed in the roof where the fall had occurred 

without safety post [sic] or jacks being used for temporary roof 

support. The A TRS installed on the 300 Galis roof drill would not 

reach the mine roof due to the height of the fall. There were no 

safety post [sic] or jacks present at the site. The conveyor belt had 

been cut with a knife 14 feet inby permanent roof support. 

(Jt. Ex. 1.) Section 75.202(b) provides that: "No person shall work or travel under unsupported 

roof .. . . " 

Findings of Fact and Conclusions of Law 

As always, the Secretary has the burden of proving that the alleged violation happened. 

In this matter, her case is based essentially on the testimony of Inspector Cole. Inspector Cole 

did not arrive at the mine until after the roof fall and partial cleanup had been accomplished. 

Thus, his evidence is based on the observations he made at the scene, the conclusions he drew 

from those observations and statements he and Inspector Smith got from witnesses. 

Unfortunately for the Secretary, with the exception of one unbelievable witness, none of the 

miners, who were either interviewed by Cole and Smith and/or testified at the trial, support the 

Secretary's theory of the case. Furthermore, the physical evidence observed by Inspector Cole is 

susceptible to more than one interpretation and is not strong enough to overcome the testimony 

of the witnesses. Therefore, I find that the Secretary has not proved that a violation of section 

75.202(b) occurred. 

As indicated in his order, three factors led Inspector Cole to conclude that the three 

foremen had been working under unsupported roof. The first was the presence cleaned up roof 

364 
fall material located on the right side of the fall area against a stopping. 1 The second was the 

presence of roof bolts placed in the roof, inside the fall area, at a height which he believed 

exceeded the height that the roof bolting machine's automatic temporary roof support (ATRS) 

would reach. Finally, the third factor was a piece of conveyor belt which he believed had been 

cut by someone while under unsupported roof. These factors will be discussed seriatim. 

Cleaned-up material on the right side of the fall. 

Inspector Cole testified that he inferred that the roof fall had been cleaned up from the left 

side of the fall, pushing the rock into the right crosscut, because "[t]hat would have been the only 

way, due to the conditions, that they would have pushed it in there." (Tr. 69.) However, he also 

testified that the material could not pushed straight across the entry. He said that if one did that, 

"[y]ou'd run your batteries down. There's too much digging. There's not enough power to flip 

this stuff up and bring it back in your bucket." (Tr. 76.) The inspector further testified that when 

cleaning up with a scoop you have to work around the edges of the fall material. (Tr. 76, 157-

58.) He also testified that because the operating controls of a scoop are located 12 feet behind 

the scoop's bucket, a miner operating the scoop could stay under supported roof and work 12 feet 

into the fall. (Tr. 158.) Finally, he testified that there was no evidence that equipment had 

traveled over the top of the remaining fall material. (Tr. 71.) 

Morley testified that he began scooping from the edge of the fall and took the material he 

cleaned up back to crosscut 50. (Tr. 422-23.) He was doing this when the third shift arrived. 

(Tr. 424.) He said that he was "under supported [sic] at all times," that the mine had "reflectors 

hung on the bolts" to indicate the last row of support and he was "watching it." (Tr. 424-25.) He 

s;,id that he cleaned up around the toe of the fall, that "there was room to get a scoop around 

through there and still be under support." (Tr. 425.) 

After cleaning around the edges of the fall, Morley stopped so a roof bolter could be 

brought in to bolt the brow of the fall. While waiting for the roof bolter the scoop was put on a 

charger. (Tr. 428.) 

After Conn finished bolting, Morley testified that: 

We brought the bolter out, took the scoop back and I cleaned 

across the front across the outby end. And there was some gob in 

that break, and I cleaned it up, took it out, put it in. Then I pulled 

over with the scoop end to[ ward] that break, and back down 

toward the belt and then cleaned up the fall. 

1 To assist in understanding the facts in this case, Joint Exhibit Three, a not-to-scale 

drawing of the area of the fall made by Inspector Smith, is attached. to this decision as Appendix 

I. 

365 
(Tr. 429-30.) Morley said that the second time that he cleaned with the scoop he put the fall 

material in the break on the right side of the fall because: "I didn't have a whole lot of power in 

the scoop, so I wanted to put it closer. So I put it over in that break." (Tr. 436-37.) He testified 

that he was able to perform this second cleanup while under supported roof. (Tr. 438.) After he 

finished, he attempted to return the scoop to the charger, but it got "hung up" on the track. (Tr. 

439.) 

Charles Sturgill and Robert Crabtree, two hourly employees called by the Secretary, 

testified that they observed Morley working around the edges of the fall and staying under 

supported roof. (Tr. 288, 316.) Salmons ·and Conn also testified that Morley did not operate the 

scoop under unsupported roof. (Tr. 391, 478-79, 490.) 

Only Tracy Dingess, another hourly employee called by the Secretary, testified that the 

scoop was "going through the intersection." (Tr. 333, 343.) On cross examination, he later 

equivocated: 

(Tr. 343-44.) 

Q. Okay. All right. So you see [the scoop] operating up there, but 

you don't know whether it's under supported top or not, because 

you're 70 feet away and you don't know what's bolted and not 

bolted; right? 

A. Well, I just saw it going through the intersection. It could have 

been, it could not have been. It could have been on this side, but I 

saw him go through the intersection. 

Whatever he meant to say, I did not find him to be a credible witness. When they 

interviewed him on the day of the investigation, less than 12 hours after allegedly witnessing it, 

Dingess did not tell Cole and Smith that he seen Morley operating the scoop under unsupported 

roof, even though Cole specifically asked him that question. (Tr. 350-51, 522.) In addition, he 

allegedly observed this from the track entry between crosscuts 52 and 53, some 70 feet from the 

fall area, in a crosscut that was lighted only by miners' cap lights and the scoop's lights. (Tr. 

343-45.) Furthermore, his testimony was contradicted by the testimony of Conn, Morley and 

Salmons. More importantly, it was also contrary to the testimony of Crabtree and Sturgill, who 

were together with him when he purportedly made his observations. (Tr. 344, 362.) Finally, 

Dingess' manner and demeanor while testifying indicated that what he had to say was not 

reliable.

2 Therefore, I give his testimony no weight. 

2 Indeed, even before he claimed that he had seen Morley go through the intersection, 

I found myself wondering why the Secretary had saved him for last because he seemed to be such 

a poor witness. 

366 
One factor leading to Cole's conclusion that the fall material had been pushed from left to 

right across the entry was his belief that all of the material that was cleaned up was located in the 

crosscut on the right side of the fall. (Tr. 159, 197.) He said he was not aware that any material 

had been taken back to crosscut 50. (Tr. 159, 197.) However, as noted above, Morley, when he 

was cleaning the first time, took the material back to crosscut 50. This was confirmed by 

Sturgill, Crabtree, Salmons and Conn. (Tr. 274-75, 322, 380, 479.) 

The Secretary's case that Morley operated the scoop under unsupported roof is based 

almost exclusively on Cole's conclusion that that is what must have happened. There is no 

physical evidence, such as scoop tracks clearly going under unsupported roof, to support Cole's 

theory. In fact, he testified that there was no evidence that equipment had gone over the· fall 

material. On the other hand, testimony of those who participated in the cleanup plausibly 

explained how, taking into consideration the 12 feet from the bucket of the scoop to its operator 

controls, which are on the side of the scoop, and its eight foot width, the cleanup was performed 

without going under unsupported roof. One of the reasons that Cole believed that the scoop had 

to have gone under unsupported roof was his assumption that all of the fall material had been 

placed on the right side of the fall. The testimony indicates, however, that that was not the case. 

Much of the material was taken two crosscuts outby the fall and the scoop was not taken around 

the right side of the fall until the roof had been bolted. 

Roof bolts inside the fall area. installed at a height higher than the ATRS would reach. 

Inspector Cole believed that 11 roof bolts had been installed around the brow of the area 

where the fall had come out of the roof, while the roof bolt operator was under unsupported roof. 

He reached this conclusion because there were no timbers or steel safety jacks of appropriate 

length, that could have been used as temporary roof support, in the area of the fall when he 

examined it, there were oil spots on the floor where he believed the roof bolter was used and he 

thought that the roof was higher than the roof bolter's A'fRS would extend. (Tr. 89-97.) Since 

the company does not claim that temporary roof supports were used, the issue is whether roof 

bolting was performed without the proper use of the bolter's ATRS. 

The inspector estimated that the mine roof was six and one half to seven feet high and 

that after the fall it was 12 feet high. (Tr. 93-4, 162.) He agreed that the cavity in the roof left by 

the fall tapered up from the edge. (Tr. 180-81.) He said that with use of the "stab jack," the 

ATRS would reach a height of seven and one half feet. (Tr. 94, 162.) He did not, however, 

~..t ;:rre the height of the roof where the 11 bolts were installed. (Tr. 209.) 

Conn testified that the highest point where he installed a roof bolt was "eight feet, eight 

and a half." (Tr. 501.) He testified that at all times when he installed the 11 roof bolts his ATRS 

was against the roof. (Tr. 485-86.) He explained that to be able to reach the roof, " [w]e took and 

moved some material to where I could get the pinner, or the roof bolter up on the edge of the fall, 

the gob and stuff, so that we could get up into the cavity part and start bolting . . .. " (Tr. 484.) 

367 
He said that he only put in the 11 bolts because "any farther out through there, my t-bar 

wouldn't-I mean, my ATRS wouldn't touch the top." (Tr. 485.) 

Morley corroborated Conn's testimony. He estimated the height of the bolted area inside 

the brow was "only about eight-foot high .... " (Tr. 433.) Relating how Conn was able to install 

the bolts, he said: "Well, I left some rock in there on the bottom. Just a little bit and packed it 

down with the scoop bucket. He backed down there and he run up on that and he raised the 

canopy up to bolt it." (Tr. 433.) He confirmed that the ATRS was touching the roof in that area. 

(Tr. 433.) 

The only testimony contrary to Morley's and Conn's was Dingess'. He claimed that the 

A TRS would not reach high enough "to do what they were going to do or needed to be done." 

(Tr. 337.) He asserted that "you could just tell that it was going too far." (Tr. 362.) For the 

reasons enumerated in the previous section, I do not find this testimony credible. I find it 

particularly significant that he was 70 feet away from the area, looking at an unlighted roof, and 

would further have his view blocked by the top of the ATRS being inside of the brow. 

Cole also believed that oil on the floor had leaked from the roof bolter, which indicated 

that the bolter had been operated under unsupported roof. (Tr. 85-87 .) However, this 

circumstantial evidence is not persuasive because: (a) Cole admitted that the area he pointed out 

as having oil was not under an area where roof bolts were installed; and (b) he admitted that what 

he thought was oil could, in fact, have been pieces of black draw rock. (Tr. 167-68.) 

Once again the testimonial evidence does not support Cole's theories and the 

circumstantial evidence is, at best, equivocal. Thus, the Secretary has not shown that roof bolts 

were installed in areas where the ATRS did not support the roof. 

Cut Conveyor Belt 

Finally, fuspector Cole cited a cut conveyor belt a8 evidence that someone had gone under 

unsupported roof. The belt was located 14 feet inby supported roof and it was Cole's theory· that 

a miner had gone under the unsupported roof to cut it with a knife. (Tr. 105-107.) He believed 

that it had been cut with a knife because of "[t]he clean edge on the belt." (Tr. 105.) He did not 

think that it could have been cut by the scoop because: ''There was no ragged edges on the belt. 

If the scoop had torn that, you would have strings, it would [have] stretched it. There would have 

beenjagged edges." (Tr. 107.) 

Morley testified that he "didn't think too much about it at the time, really," but believed 

that he hit the belt "with the scoop and it just came out with the scoop." (Tr. 434-35.) The 

evidence provides. more support for Morley's contention than it does for the inspector's. 

In the first place, an examination of the picture of the belt in question does not show a 

straight, smooth cut. (Govt. Ex. 2A.) Instead, it shows at least two places where frayed strings 

368 
are sticking out of the belt as well as several jagged areas on the top half of the belt. In the 

second place, the belt was under the roof fall material. (Tr. 192, 435.) Thus, it could only have 

been cut by a knife after the roof fall was cleaned up. There does not appear to be any reason 

why the belt would have been cut after the area was cleaned. Consequently, I find that it is more 

likely that the belt was cut when the scoop was cleaning the area, than when the area had already 

been cleaned. 

Conclusion 

The Secretary's case on this order is based primarily on circumstantial evidence. That is, 

the inspector reached his conclusions based on his view of the scene, after the alleged working · 

under unsupported roof had occurred, and not on eye witness testimony. However, the witness 

evidence is contrary to the inspector's conclusions. while the testimony of Conn, Morley and 

Salmons could be suspect because of their obvious interest in the case, I find it to be credible. 

Their explanation as to what they did is reasonable and not inconsistent with the facts reported by 

the inspector. Further, it is corroborated in many respects by Crabtree and Sturgill, who do not 

have the foremen's interest in the outcome of the case. With the exception of Dingess, none of 

the witnesses' demeanor and manner while testifying indicated that they were not worthy of 

belief. Accordingly, I find that the Secretary has not proven a violation of section 75.202(b) as 

alleged and will vacate the order and dismiss the petitions against Conn, Morley and Salmons. 

Order 

In accordance with the discussion above, Order No. 7378603 in Docket No. KENT 

2003-5 is VACA TED and Docket Nos. KENT 2002-356, KENT 2002-357 and KENT 2002-358 

are DISMISSED. In accordance with the settlement agreements, the remaining orders and 

citations in Docket No. KENT 2003-5 are AFFIRMED, Docket Nos. KENT 2003-161, KENT 

2003-162, KENT 2003-163 and KENT 2003-164 are DISMISSED and Rockhouse Energy 

Mining Company is ORDERED TO PAY a civil penalty of $42,700.00 within 30 days of the 

date of this decision. 

Distribution: (Certified Mail) 

~~~ Administrative Law Judge 

(202) 434-9973 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 

2002 Richard Jones Road, Suite B-201, Nashville, TN 37215-2862 

Mark E. Heath, Esq., Spilman Thomas & Battle, Pl.LC, The Spilman Center, 

P.O. Box 273, Charleston, WV 25321 

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370 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, D.C. 20001-2021 

Fax No.: (202) 434-9949 

April 26, 2004 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

Docket No. EAJ 2002-2 

V. 

GEORGES COLLIERS, 

INCORPORATED 

DECISION ON REMAND 

This Equal Access to Justice Act (EAJA) case has been returned to me by the 

Commission with instructions to determine whether the penalties proposed by the Secretary were 

substantially in excess of those assessed, whether the penalties proposed were unreasonable, and, 

if so, whether circumstances exist which, nonetheless, should bar an award. The remand is 

necessary because, when I initially ruled on Georges Colliers, Inc.' s (GCI' s) application for 

attorney's fees (Georges Colliers. Inc., 24 FMSHRC 572 (June 2002)), I did not apply "the 

standard set forth in Commission BAJA Rule 105(b)1 and the legal principles set forth in L&T 

Fabrication [& Constr .. Inc., 22 FMSHRC 509 (April 2000)]2

" (Georges Colliers. Inc., 26 

Commission Rule 105(b) (29 C.F.R. §2704.105(b)) states in part: 

If the demand of the Secretary is substantially in excess of the decision of 

the Commission and is unreasonable when compared with such decision, under the 

facts and circumstances of the case, the Commission shall award to an eligible 

applicant the fees and expenses related to defending against the excessive demand, 

unless the applicant has committed a willful violation of law or otherwise acted in 

bad faith or special circumstances make an award unjust. The burden of proof is 

on the applicant to establish that the Secretary's demand was substantially in 

excess of the Commission's decision; the Secretary may avoid an award by 

establishing that the demand was not unreasonable when compared to that 

decision. 

2 L&T Fabrication establishes: 

a two-part test for determining whether fees should be 

awarded. The first prong is largely quantitative, focusing on 

whether ... the Secretary has proposed a penalty that is 

"substantially in excess of' the penalty ultimately assessed 

371 
FMSHRC l, 9 (January 16, 2004)). 

The Commission directed that when considering whether the proposed penalties are 

"substantially in excess" of the assessed penalties, I should compare the amounts proposed by the 

Secretary with the amounts I assessed in the underlying civil penalty cases. (''The benchmark 

should ... [be] the penalties that the judge finally imposed" (26 FMSHRC at 9).) The 

Commission added that in making the determination I should consider the percentage the 

proposed penalties were reduced and whether the Secretary's proposals were motivated to extract 

a speedy settlement, or for other onerous reasons ilih at 10). 

In addition, the Commission observed that the Secretary's Program Policy Manual ~ 

sets out a procedure by which an operator may seek adjustment of a proposed penalty by 

submitting a written request to the District Manager for a review of the operator's financial status 

and for a determination as to whether a reduction in the proposed assessment is warranted (26 

FMSHRC at 12). The Commission stated that although "the record evidence and the PPM 

indicate that there was a procedure for submitting financial data that GCI followed in at least 

some cases ... there is an absence of record evidence indicating that ~e Secretary ever 

responded to GCI's submission" ilih at 14). Therefore, the Commission instructed me to 

examine "whether the Secretary sufficiently considered GCI' s evidence of its ability to continue 

in business when the information was submitted" ffi!:. at 11); or, put another way, to "address the 

effect, if any, of the Secretary's consideration of and response to GCI' s financial data after the 

issuance of the proposed penalties, given the procedures in the PPM'' ilih at 14). 

Finally, depending on my conclusions regarding the "substantially in excess" and 

"reasonableness" issues, the Commission noted I might need to determine whether GCI's actions 

or other circumstances made an otherwise valid award unjust (26 FMSHRC at 15). 

Following the remand, I requested that the parties comment upon the issues flagged by 

the Commission (Order on Remand (February 6, 2004)). They have responded and, for the 

reasons that follow, I hold that GCI is not entitled to an award. 

I. Were the proposed penalties substantially in excess of the 

assessed penalties? 

In L&T Fabrication, the Commission stated that "substantially in excess" means 

"considerable in amount, value or the like; large" (22 FMSHRC at 515-516 (citation omitted)). 

The penalties initially proposed by the Secretary totaled $332,701, and I assessed penalties of 

. by the Commission. . . . [T]he second prong is qualitative, 

and presents the issue of whether the Secretary has acted 

reasonably in proposing a particular penalty. 

22 FMSHRC at 514. To recover fees, both parts of the test must be met (Jg.). 

372 
$72,298, a reduction of 78%. The percentage of the reduction was nearly as large as that in U.S. 

v. One 1997 Toyota Land Cruiser, 248 F.3d 899 (9th Cir. 2001). There, the Government settled 

the case it valued at $40,000 for a $1,000 fine and $4,000 in costs, and the court found the 

reduction constituted a "substantial disparity" between the amount sought and the final judgment 

(248 F.3d at 906). Application of the Commission's definition and case precedent at first blush 

suggest that the reduction of the proposed penalties to those ultimately assessed was 

"considerable in amount, value or the like; large" (22 FMSHRC at 515-516) and, thus, met the 

substantial disparity requirement. However, I am persuaded that more than the reduction and the 

proposed assessments must be considered. 

As the Secretary persuasively points out, her proposals must be viewed in the context in 

which they arose and were litigated (See's Response to Order on Remand 3-6). The cases 

involve approximately 547 citations issued between August 11, 1998, and July 18, 2000. The 

initial penalty proposals were calculated by MSHA's Office of Assessments through application 

of the Secretary's civil penalty assessment regulations (30 C.F.R., Part 100). However, and as 

discussed more fully below, the Secretary did not remain wedded to the original proposals. On 

June 27, 2000, after a large majority of the assessments at issue had been proposed, GCI 

submitted documentary data to MSHA concerning the financial status of the company.3 Based 

on the data, the Secretary's counsel respol)ded by offering to reduce all proposed assessments by 

50%.4 

When the EAJA was debated, then senator, Dale Bumpers, gave an example of what 

would constitute an excessive demand. He stated, "if the Government sought $1 million to settle 

the case and the judge ... awarded, for example $1000 or $5000, the defendant should be able to 

recover his fees" (142 Cong. Rec. S. 2148-04, 2156 (March 15, 1996)). Thus, it seems clear that 

Congress did not envision the Government's demand as a static concept, but, rather, recognized 

that under some circumstances it could include an offer of settlement made after an initial 

proposal. Here', it is proper to treat the Secretary's settlement offer as the Government's demand 

because, as Secretary points out, a majority of the original assessments were based on 

information available to MSHA at the time and that information did not include the financial data 

the company later submitted (Sec. Response To Order on Remand 6-7). 

When the Government's all-inclusive settlement offer is viewed as its demand, my 

assessments represent an approximate 43% reduction of the demand. In the context of Mine Act 

cases, such a reduction by a Commission judge is not uncommon and is not "considerable in 

amount, value or the like; large" (22 FMSHRC at 515-516), and I conclude the reduction does 

3 This is the data which the Commission instructed me to consider in applying the 

L&T Fabrication test (26 FMSHRC at 11, 14). 

4 GCI rejected the offer and, on August 24, 2000, GCI' s counsel advised the 

Secretary's counsel of the rejection (Sec. Response to Order On Remand, Exh. C). 

373 
not establish a substantial disparity between the demand and the final assessments.5 This is 

especially true given the fact the posture of the cases required the Secretary to act solely on the 

basis of the written, unexplained documents. . 

As for the Secretary's proposing onerous penalties for a nefarious purpose -- e.g., to 

extract a speedy settlement - as I previously found, MSHA did nothing other than "faithfully 

follow and properly apply the [assessment] regulations it was compelled to follow" (24 

FMSHRC at 574-575). There is no indication the Secretary was trying to force a settlement that 

was unfair to COi or that the Secretary had any other disreputable purpose in mind. 

Il. Were the proposed penalties reasonable? 

Although a denial of G.CI's EAJA application can rest solely on the conclusion the 

Secretary's proposed demands were not substantially in excess of the assessed penalties, I also 

conclude the proposed penalties were reasonable. 

Congress cautioned that an EAJA determination "should not be a simple mathematical 

comparison." Rather, the proposed penalty must be "so far in excess of the true value of the 

case, a8'demonstrated by the final outcome, that it appears the agency's assessment ... did not 

represent a reasonable effort to match the penalty to the actual facts and circumstances of the 

case" (142 Cong. Rec. S. 3242, S. 3244 (March 29, 1996)). The Commission stated the issue as 

''whether the Secretary ... acted reasonably in proposing a particular penalty'' and, like 

Congress, indicated that "reasonableness" must be decided within the context of the "actual facts 

and circumstances of the case"~ & T Fabrication, 22 FMSHRC at 514). 

Here, the "facts and circumstances" include more that the mechanics of the initial 

assessment process. They also include the Secretary's counsel's response to the financial 

information submitted by GCI to the agency. 

The PPM states that within 30 days of the receipt of a proposed assessment, an operator 

may submit a written request to an MSHA district manager for review of the operator's financial 

status and that, upon receipt of the request, MSHA will suspend processing the case until a 

determination is made as to whether the proposed penalty should be reduced <PPM, Part 100 at 

46 (2001)). GCI's June 27, 2000, letter to the MSHA district manager has been referenced 

above. It is the letter in which GCI' s attorney requested a review of the company's financial 

status with regard to three citations and "all other outstanding proposed assessments" (26 

FMSHRC at 13 (quoting GCI Resp. to Opp'n to Appl., Ex. 4)). As has been noted, the letter was 

5 In.my initial decision, I expressed my reluctance to rely on undocumented 

settlement proposals (24 FMSHRC at 577 n. 1). Here, however, there is no question but that the 

Secretary made the offer, and GCI's rejection is documented by its own counsel's letter (See's 

Response to Order on Remand 12, Exh. C (August 24, 2000, letter of GCI' s counsel rejecting 

"offer to settle at the rate of fifty percent (50% )")). 

374 
accompanied by financial data. As has also been noted, the Commission found no evidence in 

the record that MSHA responded to the request as required by the PPM ffih at 13).6 In other 

words, it found no evidence MSHA "suspended processing of the case until a final determination 

[was] made as to whether a financial reduction [was] warranted" and it found no evidence 

MSHA's Assessment Office "notified ... [GCI] of a final decision via certified mail" (PPM, Part 

100 at 46 (2001)). This is why the Commission instructed me to "address the effect, if any, of 

the Secretary's consideration of and response to Gel's financial data after the issuance of 

proposed penalties, given the procedures in the PPM" (26 FMSHRC at 14). 

Although GCI submitted financial data to MSHA on June 27, 2000, the data was timely 

with respect to only a few of the proposed assessments. GCI did not comply with the PPM by 

submitting timely data with respect to the vast majoritY of the penalty proposals (see Secretary's 

Response to Order on Remand at 11). As for MSHA, it, too, did not follow the PPM, in that its 

Assessment Office did not notify GCI by certified mail as to whether it would reduce the few 

assessments to which the data actually applied. However, the Secretary maintains, and I agree, 

that the agency essentially followed the spirit of the PPM because, when it received the financial 

information, it evaluated the data and decided that, timely or not, the agency would accept the 

request of GCI' s counsel that the data be applied to all of the proposed assessments. As a result, 

the Secretary determined the data warranted a 50% reductjon in all of the proposed penalties, and 

the Secretary so advised Gel's counsel (See's Response to Order on Remand 12). 

In view of the Commission's instruction to address ''the effect, i[f] any, of the Secretary's 

consideration of and response to GCI' s financial data after issuance of the proposed penalties" 

(26 FMSHRC at 14) and given the law that the Secretary must make a "reasonable effort to 

match the penalty to the actual facts and circumstances of the case" (L & T Fabrication, 22 

FMSHRC at 515-516, quoting Join Statement at S. 3244), I conclude that the Secretary's 

response to the financial information submitted to her by GCI - that is the Secretary's offer to 

settle the matters by reducing all proposed penalties by 50% - represented a reasonable effort to 

match the penalties to the facts and circumstances. While the Secretary did not comply with the 

procedures set forth in the PPM, neither, in most instances, did GCI. Still, when presented with 

documentary evidence of GCI' s fiscal condition and the effect the proposed penalties would have 

on the company, the Secretary responded in the way the PPM contemplates, in that she 

considered the data and offered to effectively lower the proposed penalties. Since at the point the 

offer was made the vast majority of the assessments already had been contested, the offer was a 

logical and efficient way for the Secretary to proceed. 

While the proposed reduction was not as large as the reduction I ultimately found was 

warranted, it is important to remember it was based, as it had to be, solely on the documents. 

The Secretary did not - indeed, could not - rely as I did on Jackson's sworn testimony (see 24 

6 The Commission observed that "GCI's president, Craig Jackson, testified at trial 

that GCI had submitted to MSHA the financial documents that were exhibits at trial and heard 

nothing in response" (26 FMSHRC at 13, citing to Tr. 579-80). 

375 
FMSHRC at 577). She acted on the only information she had and, in so doing, she acted 

reasonably. The fact that she offered a 50% reduction rather than the 78% reduction I ultimately 

imposed should not make her liable for attorney's fees. This is especially true when it is recalled 

that consideration of an operator's ability to continue in business is but one of the civil penalty 

criteria and that the weight accorded it in assessing and proposing penalties is not fixed (see 30 

C.F.R. § 100.3(h)). 

For these reasons I conclude that the penalties the Secretary effectively proposed were 

reasonable.7 

The application is DENIED and the proceeding is DISMISSED. 

Distribution: 

YWt.d [ ~Ot/A_- David F. Barbour 

Administrative Law Judge 

(202) 434-9980 

Elizabeth M. Christian, Esq., 7229 Nohl Ranch Road, Fort Worth, TX 76133 

Robin A. Rosenbluth, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Blvd., 22°d Floor West, Arlington, VA 22209-2247 

7 Given my conclusions regarding the prongs of the L&T Fabrication test, I need 

not reach the issue of whether GCI should be denied an award because it committed willful 

violations, acted in bad faith, or because of special circumstances. However, were I required to 

rule, I would reject the Secretary's argument that the stipulated number of violations found to be 

unwarrantable and significant and substantial contributions of mine safety hazards (S&S), as well 

as GCI' s history of previous violations, evidence GCI' s "willful . .. bad faith actions" (Sec' s 

Response To Order on Remand 19, citing 142 Cong. Rec.§§ 331 & 332 (March 29, 1996) 

(statement of Senators Bond and Bumpers)). The finding of large numbers of unwarrantable and 

S&S violations is not necessarily indicative that an operator has acted in bad faith or flagrantly 

violated the act; nor is a large history of previous violations. In addition, I am not persuaded that 

the conduct of GCI's counsel throughout the litigation would make an award unjust. In effect, 

what counsel did was use the hearing process to make her case that GCI' s financial condition 

warranted larger penalty reductions than the Secretary was prepared to offer. Counsel was well 

within her right to pursue the trial option to resolve the matter and her conduct was not such as to 

bar an otherwise valid award. 

376 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

SECRETARY OF LABOR, MSHA, on 

behalf of CHRISTOPHER WRIGHT, 

Complainant 

V. 

AMERICOLD LOGISTICS I.LC., 

Respondent 

Washington, DC 20001 

Apri126,2004 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. CENT 2004-110-DM 

RM lvID 2004-07 

Mine 14-00159 

Inland Quarries 

DISMISSAL ORDER 

Before: Judge Feldman 

The Secretary filed her Application for Temporary Reinstatement on March 29, 2004. 

The Respondent filed its request for a heariQg in this matter on April 7, 2004. During the course 

of an April 6, 2004, telephone conference, the parties requested that the hearing be continued 

without date in anticipation of settling this matter. Consequently, this matter was continued 

without date on April 15, 2004, with the stipulation that the parties inform me, on or before 

April 20, 2004, whether an agreement had been reached. 

On April 20, 2004, the Secretary filed ·a Motion to Dismiss. In support of her motion the 

Secretary avers that she is withdrawing her temporary reinstatement application on behalf of 

Christopher Wright because the parties have settled the underlying discrimination complaint. 

The respondent, Americold Logistics, ILC, authorized the Secretary to move for dismissal. 

In view of the parties' agreement, upon performance of the settlement terms, the temporary 

reinstatement proceeding in Docket No. CENT 2004-110-DM IS DISMISSED with prejudice. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Edward Falkowski Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80201 

377 
Karen L. Johnston, Esq., Jackson & Kelly, PI.LC, 1099 18th Street, Suite 2150, 

Denver, CO 80202 

/hs 

378