MARCH 1996 

COMMISSION DECISIONS AND QRDERS 

03-14-96 

03-14-96 

03-14-96 

03- 1 5-96 

03-18-96 

03-20-96 

Broken Hill Mining Company 

Faith Coal Compan y 

Sec. Labor on behalf of Ramon Franco 

v. W.A. Morris Sand & Grav el 

Sec. Labor on behalf of Wm. Kaczmarczyk 

v. Reading Anthracite Company 

Power Operating Company 

REB Enterprises, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

02-09-96 

03-04-96 

03-05-96 

03-05-96 

03-06-96 

03-07-96 

03 - 07- 96 

03-07-96 

03-08-96 

03-13-96 

03-14-96 

03-20- 96 

03-20-96 

03-25-96 

03-25-96 

03-27-96 

03-29-96 

03-29-96 

03 - 29- 96 

REB Enterprises, Inc. 

ASARCO, Incorporated 

Narrows Branch Coal, Inc. 

The Pittsburg & Midway Coal Mining Co. 

Sec. Labor on behalf of Ronnie Gay 

v. Ikerd-Bandy Company 

J B D Mi~ing Company, Inc. 

Consolid~tion Coal Company 

consolidation coal Company 

Opportunity Trucking Inc. 

L & J Energy Company, Inc. 

Samuel & Nancy Sanders on behalf 

of Joseph Sanders v. Sec. Labor 

Jim Walter Resources, Inc. 

General Road Trucking Corporation 

Contractors Sand & Gravel Supply, Inc. 

Tide Creek Rock, Inc. 

LAC Bullfrog Incorporated 

Freeman United Coal Mining 

Amax Coal company 

Power Operating Company 

ADMINISTRATIVE LAW JUPGE ORDERS 

02-26-96 Kyle J. Wethington, empl oyed by 

Amax coal company 

03-07-96 ASARCO, Incorporated 

03-08-96 Pittsburg & Midway Coal Mining Co. 

i 

KENT 94- 972 

SE 91-97 

WEST 96- 120 - DM 

PENN 95- 1 - D 

PENN 93-51 

CENT 95-29-M 

CENT 95- 29- M 

CENT 95-8 - RM 

KENT 95 - 322 

KENT 96-38 

KENT 95-597-D 

KENT 95-451 

WEVA 93-82-R 

WEVA 93-146-A 

WEVA 95-114 

PENN 93 - 15 

WEST 

SE 

YORK 

WEST 

WEST 

WEST 

LAKE 

LAKE 

PENN 

95-538-RM 

96-81-R 

95-102-M 

93-462-M 

94- 369-M 

94- 407 - M 

94- 3 

95- 403 - R 

93-51 

LAKE 95-404 

WEST 95-155-M 

CENT 95-13 

Pg . 291 

Pg . 294 

Pg. 296 

Pg. 299 

Pg. 303 

Pg. 311 

Pg. 315 

Pg. 317 

Pg. 337 

Pg. 339 

Pg. 341 

Pg. 349 

Pg. 357 

Pg. 363 

Pg. 371 

Pg. 373 

Pg. 377 

Pg. 380 

Pg. 382 

Pg. 384 

Pg. 390 

Pg. 422 

Pg. 438 

Pg. 460 

Pg. 465 

Pg. 467 

Pg. 472 

Pg. 478 
MABCB 1996 

Reyiew was granted ·in the following case dμring the month of March; 

Secretary of Labor, MSHA v. Harold Moody, employed by Grand River Quarry, Inc., 

Docket No . CENT 95-214-M. (Judge Arnchan, January 26, 1996) 

Secretary of Labor, MSHA v. Gouverneur Talc Company, Docket No. YORK 95-70-M. 

(Judge Weisberger, January 29, 1996) 

Secretary of Labor, MSHA on behalf of Ramon Franco v. W.A. Morris Sand & 

Gravel, Inc . , Docket No. WEST 96-120-DM. (Judge Manning, February 15, 1996) 

Secretary of Labor, MSHA v. REB Enterprises, Inc., Docket Nos. CENT 95-20-M, 

etc. (Judge Weisberger, February 9, 1996 - printed in this issue) 

Reyiew was denied in the following case dμring the month of March; 

Secretary of Labor, · MSHA v. U.S. Coal Incorporated, Docket No. SE 93-119. 

(Judge Fauver, February 5, 1996) 

ii 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, &TH FLOOR 

WASHINGTON, O.C. 20006 

March 14, 1996 

Docket No. KENT 94-972 

BROKEN HILL MINING COMPANY, INC. 

ORDER 

On October 11, 1995, the Commission granted the petition for discretionary review filed 

by Broken Hill Mining Company, Inc. ("Broken Hill"). Pursuant to Commission Procedural 

Rule 75, 29 C.F.R. § 2700.75, 1 Broken Hill's opening brief was due to be filed by November 13, 

1995. To date, no brief has been filed. On January 26, 1996, the Secretary of Labor filed a 

Motion to Dismiss for Want of Prosecution pursuant to Commission Procedural Rule 75(e), 

29 C.F.R. § 2700.75(e).2 Broken Hill has filed no opposition to the motion. 

1 Rule 75 provides, in part: 

(a) Time to file. (1) Opening and response briefs. 

Within 30 days after the Commission grants a petition for 

discretionary review, the petitioner shall file his opening brief. If 

the petitioner desires, he may notify the Commission and all 

other parties within the 30-day period that his petition and any 

supporting memorandum are to constitute his brief. . . . 

2 Rule 75(e) provides: 

Consequences of petitioner's failure to file brief. If a 

petitioner fails to timely file a brief or to designate the petition as 

his brief, the direction for review may be vacated. 

291 
Broken Hill is hereby ordered to show cause within 14 days of the date of this order why 

its appeal should not be dismissed. 

Arlene Holen, Commissioner 

Marc Lincoln Marks, Commissioner 

292 
Distribution: 

Hobart W. Anderson, President 

Broken Hill Mining Company, Inc. 

P.O. Box 356 

Sidney, KY 41564 

(Certified Mail) 

Cheryl C. Blair-Kijewski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

(Certified Mail) 

29 3 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

FAITH COAL CO. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 14, 1996 

Docket Nos. SE 91-97, etc. 

ORDER 

On August 28, 1995, the Commission granted the cross petitions for discretionary review 

filed by Faith Coal Co. ("Faith") and the Secretary of Labor. Pursuant to Commission 

Procedural Rule 75, 29 C.F.R. § 2700.75,1 Faith's opening brief was due to be filed on 

September 27, 1995. On January 26, 1996, the Secretary filed a Motion to Dismiss For Want 

of Prosecution ("Motion") pursuant to Commission Procedural Rule 75(e), 29 C.F.R. § 

2700.75(e).2 On February 1, the Commission received Faith's response to the Secretary's 

opening brief. To date, the Commission has not received Faith's opening brief, nor has Faith 

designated its petition as its brief. Further, Faith has filed no opposition to the Motion. 

1 Rule 75 provides, in part: 

(a) Time to file. (1) Opening and response briefs. 

Within 30 days after the Commission grants a petition for 

discretionary review, the petitioner shall file his opening brief. If 

the petitioner desires, he may notify the Commission and all 

other parties within the 30-day period that his petition and any 

supporting memorandum are to constitute his brief. . . . 

2 Rule 75(e) provides: 

Consequences of petitioner's failure to file brief If a 

petitioner fails to timely file a brief or to designate the petition as 

his brief, the direction for review may be vacated. 

294 
Faith is hereby ordered to show cause within 14 days of the date of this order why its 

appeal should not be dismissed. 

J 

~de ADO)fle)Commissioner ~ 

co?br 

Marc Lincoln Marks, Commissioner 

295 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, STH FLOOR 

WASHINGTON, D.C. 20006 

March 14, 1996 

SECRETARY OF LABOR, on behalf 

RAMON S. FRANCO 

Complainant 

V. 

W.A. MORRIS SAND AND 

GRAVEL, INC., 

Respondent 

Docket No. WEST 96-120-DM 

DIRECTION FOR REVIEW 

DENIAL OF REVIEW AND 

DENIAL OF ST A Y OF TEMPORARY REINSTATEMENT 

On February 26, 1996, respondent W.A. Morris Sand and Gravel ("Morris") filed a 

petition for discretionary review of the February 15, 1996, orders of Administrative Law Judge 

Richard W. Manning granting the Secretary's application for temporary reinstatement and 

denying Morris' motions to dismiss. Morris also has requested a stay of the temporary 

reinstatement order. 

Upon consideration of Morris' petition and request, the Secretary's response in opposition 

and respondent's reply, the petition for review is granted as to the issue of jurisdiction, i.e. 

whether the complainant is a miner. In all other respects the petition is denied. 

296 
.. : ··-.. 

Respondent's request for a stay of the temporary reinstatement order fails to demonstrate 

compelling or extraordinary circumstances, and is therefore denied. See Perry Transport, Inc., 15 

FMSHRC 196, 198 (February 1993). 

297 
Douglas White, Esq. 

Chris Schuman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Susanne Lewald, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

71 Stevenson Street, Suite 11 10 

San Francisco, CA 94105 

Phil B. Hammond 

Hammond, Natoli & Tobler, P.C. 

3101 N. Central Ave., Suite 600 

Phoenix, AZ 85012-2639 

Richard W. Manning 

Administrative Law Judge 

Federal Mine Safety and Health 

Review Commission 

1244 Speer Boulevard #280 

Denver, CO 80204-3582 

298 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

WILLIAM KACZMARCZYK 

v. 

1730 K STREET N.W., 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 15, 1996 

Docket No. PENN 95-1-D 

READING ANTHRACITE COMPANY 

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners 

DECISION 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On May 24, 1995, Administrative Law 

Judge Arthur J. Amchan determined that the Reading Anthracite Company ("Reading") had 

violated section 105(c) of the Mine Act, 30 U.S.C. § 815(c), when it transferred William 

Kaczmarczyk from a light duty position to workers' compensation status. 17 FMSHRC 784 

(May 1995) (ALJ). On September 28, 1995, a hearing was held on the issues of civil penalty and 

damages. 17 FMSHRC 2065, 2066 (November 1995) (ALJ). The parties stipulated that 

Kaczmarczyk was entitled to receive $4,942.42 "to compensate for economic loss" as a result of 

the discrimination. Id at 2066. The judge awarded an additional $156 to compensate 

Kaczmarczyk for travel expenses that he incurred in seeking another job, for total "damages" of 

$5,098.42. Id. at 2066-67, 2069. 

In December 1995, Reading paid Kaczmarczyk $3,945.06. Reading apparently treated all 

or most of the monetary award as wages subject to income tax withholding. On December 22, 

1995, the Secretary filed a petition for discretionary review with the Commission. The Secretary 

stated that an attempt was made to resolve the dispute with Reading's counsel but that Reading 

was unwilling to retreat from the position that the monetary award was subject to withholding 

allowances and taxes. PDR at 3. The Secretary sought review from the Commission, ~ther than 

reconsideration from the judge, because the judge no longer had jurisdiction under Commission 

299 
Rule 69(b), 29 C.F.R. § 2700.69(b) (1995), once his decision issued. Id. at 1-2. The Secretary 

concluded that, "[s]ince the record is unclear as to the intention of the parties and the judge's 

order is not clear on the issue of allocation of the monetary award," the matter should be 

remanded to the judge for clarification. Id at 3-4. Reading did not respond. 

On December 29, 1995, the Commission granted the petition and stayed briefing pending 

further order of the Commission. 

Apparently Reading does not dispute that, under the terms of the stipulation approved by 

the judge and his further order regarding travel expenses in the amount of $156, Kaczmarczyk is 

entitled to a gross amount of $5,098.42. There is, however, disagreement between the parties as 

to whether that amount is subject to income tax withholding in its entirety. That issue is 

governed by the terms of the Internal Revenue Code, not the Mine Act. In order for both 

Reading and Kaczmarczyk to treat the damage award properly for income tax purposes, the basis 

for the stipulated damages must be categorized in appropriate detail. 

300 
Accordingly, we remand the matter for further appropriate proceedings. 

Arlene Holen, Commissioner 

Marc Lincoln Marks, Commissioner 

-·-

30 1 
Distribution 

W. Christian Schwnann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Martin J. Cerullo, Esq. 

Cerullo, Datte & Wallbillich, P.C. 

Second Street & Laurel Blvd. 

P.O. Box450 

Pottsville, PA 17901 

Administrative Law Judge Arthur Amchan 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

302 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

March 18, 1996 

Docket No. PENN 93-51 

POWER OPERATING COMPANY, INC. 

BEFORE: Jordan, Chairman; Doyle, Holen, and Marks, Commissioners1 

DECISION 

BY: Jordan, Chairman; Holen and Marks, Commissioners 

This civil penalty proceeding involves a violation of30 C.F.R. § 77.1710(a), which 

requires the wearing of face-shields or goggles when hazards to the eyes exist.2 Administrative 

Law Judge Avram Weisberger concluded that Power Operating Company, Inc. ("Power") 

violated the standard but that the violation was not significant and substantial ("S&S"). 

16 FMSHRC 591(March1994) (ALJ). The Commission granted the Secretary of Labor's 

petition for discretionary review, which challenges the judge's S&S determination. For the 

reasons that follow, we reverse and remand for reassessment of the civil penalty. 

1 Commissioner Riley assumed office after this case had been considered and decided at 

a Commission decisional meeting. A new Commissioner possesses legal authority to participate 

in pending cases, but such participation is discretionary. Mid-Continent Resources, Inc., 16 

FMSHRC 1218, n.2 (June 1994). In the interest of efficient decision making, Commissioner 

Riley has elected not to participate in this matter. 

2 Section 77.l 710(a) states: 

Protective clothing or equipment and face-shields or 

goggles shall be worn when welding, cutting, or working with 

molten metal or when other hazards to the eyes exist. 

30 3 
I. 

Factual and Procedural Back~ound 

During an inspection of Power's Frenchtown mine in Clearfield County, Pennsylvania, 

on September 16, 1992, Inspector Charles Lauver of the Department of Labor's Mine Safety and 

Health Administration ("MSHA") noticed a miner steam cleaning the side of a rock truck with a 

"steam jenny,"3 which applies "high pressure steam and liquid" through a hose. 16 FMSHRC at 

606; Tr. 212-13.

4 According to Lauver, such steam cleaning causes "dirt, grease, [and] all 

manner of material to become dislodged and ... splatter in all directions." Id. at 606-07; Tr. 213. 

Lauver observed that the miner was not wearing goggles or a face shield and that his face was 

"splattered with black spots from the material that had been sprayed up." Id. at 606; Tr. 213. He 

thereupon issued a citation to Power alleging an S&S violation of section 77.171 O(a). 

Power conceded the violation but contested the S&S designation. 16 FMSHRC at 606. 

The judge concluded that the violation was not S&S and assessed a $100 civil penalty. Id. at 

607. 

II. 

Disposition 

In analyzing the S&S issue, the judge found that an injury-causing event involving the 

miner's eyes was reasonably likely to occur as a result of the violation. 16 FMSHRC at 607. He 

opined, however, that the record contained no evidence regarding the seriousn~ss of such an 

injury. Id. at 607. 

The Secretary argues that the judge's finding that there was no evidence regarding the 

severity of an eye injury erroneously overlooks the inspector's contemporaneous notes, which 

were entered into evidence and state that a "serious eye injury could result." PDR at 4 (citing 

Gov't Ex. 21.)5 The Secretary further contends that "the splattering of foreign material into the 

eye under high pressure, is recognized by most people, in light of common life experiences, to be 

very likely ... of a serious nature." PDR at 4; see also id. at 5 n.2. 

3 A ')enny" is "a machine for cleaning ... surfaces by means of a jet of steam." 

Webster's Third New International Dictionary (Unabridged) 1213 (1986). 

4 Transcript references are to the volume of testimony taken on December 8, 1993. 

5 The Secretary designated his PDR as his brief. 

30 4 
Power responds that the judge properly concluded that the Secretary failed to establish 

the likelihood of a reasonably serious injury. P. Br. at 2-3. It asserts that the testimony of its 

witness, Peter Baughman, an experienced jenny operator, who perceived no serious hazard in 

using it without protective equipment, constitutes substantial evidence in support of the judge's 

determination. Id at 3. In its view, the Secretary's argument based upon "common life 

experiences" lacks common sense and impennissibly attempts to shift the burden of proof. Id. at 

3-5. 

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

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

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

result in an injury or illness of a reasonably serious nature. Cement Div., Nat 'I Gypsum Co., 3 

FMSHRC 822, 825-26 (April 1981). In Mathies Coal Co., 6 FMSHRC 1(January1984), the 

Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

mandatory safety standard; (2) a discrete safety hazard-that is, a 

measure of danger to safety--contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

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

will be of a reasonably serious nature. 

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

Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), affg 

9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria). An evaluation of the 

reasonable likelihood of injury should be made assuming continued normal mining operations. 

US. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). 

The first and second Mathies elements are established. Power concedes the violation 

(Tr. 210) and the record shows that the violation contributed to the hazard of exposing the jenny 

operator's unprotected eyes to flying debris from the high pressure jet of steam and water. 16 

FMSHRC at 606; Tr. 212-13; see also Tr. 222-23. Concerning the third Mathies element, 

substantial evidence supports the judge's finding that there was a reasonable likelihood of injury 

resulting from that hazard.

6 Usually, the nozzle of the jenny's hose is held only about three feet 

6 The Commission is bound by the substantial evidence test when reviewing an 

administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial 

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

support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163 

(November 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We 

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

30 5 
away from the truck being cleaned. It was undisputed that the steam cleaning causes dirt, grease, 

and other material to dislodge and splatter loose and that, in fact, the jenny operator's face was 

spattered with spots of"sprayed up" material when the inspector observed the violative situation. 

16 FMSHRC at 606; Tr. 212-13, 222. Thus, on this record, it is clear that an injury-producing 

event of materials dislodged from the truck during steam cleaning being propelled into the 

equipment operator's unprotected eyes was reasonably likely to occur. 

We conclude, however, that the judge's ultimate S&S determination is erroneous. With 

respect to the fourth Mathies element, he failed to consider all the relevant evidence and his 

finding is not supported by substantial evidence. 

In Mathies, the Commission recognized that "[a]s a practical matter, the last two 

[Mathies] elements will often be combined in a single showing." 6 FMSHRC at 4. Much of the 

evidence on this record that establishes the reasonable likelihood of an eye injury also 

demonstrates that the injury would be reasonably serious. Steam cleaning the rock truck required 

the jenny operator to shoot a pressurized jet of hot water and steam at close range (approximately three feet), forcibly dispersing whatever debris had accumulated on the truck. Hot water 

and dislodged materials splattered on the operator's unprotected face. These facts support only 

one conclusion: forcibly propelled debris such as dirt, grease, or hot water striking the eye is 

reasonably likely to cause reasonably serious trauma.7 

,. 

Moreover, in Ozark-Mahoning Co., 8 FMSHRC 190 (February 1986), the Commission 

observed in general terms that, for S&S purposes, "it is obvious that whenever foreign objects 

are propelled into the eye there is a reasonable likelihood of loss or impairment of vision as well 

as injury." 8 FMSHRC at 192. Although that case involved different facts, the haz.ard of rock 

fragments propelled through the air as a result of percussion drilling, the Commission did not 

confine its observation to that context. 

Contrary to the judge's view, the record also contains evidence of the inspector's opinion 

regarding the severity of such injury. The citation issued by the inspector (Gov't Ex. 29) and his 

contemporaneous notes (Gov't Ex. 21), both introduced into the record without objection (Tr. 

212, 214-15), state that the eye injury likely to result from the violation would be serious. On 

cross-examination, the operator's counsel asked the inspector about the somewhat different 

also consider anything in the record that "fairly detracts" from the weight of the evidence that 

supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). 

7 Chairman Jordan and Commissioner Marks decline to accord any weight to 

Baughman's assertion that he had so far avoided eye injury while steam cleaning without goggles 

(Tr. 220-22). It would be inconsistent with the safety promoting goals of the Mine Act to permit 

an operator to defend itself against an S&S designation in a citation by presenting evidence of its 

previous failures to comply with the standard in question. 

306 
wording of his injury characterizations on these two documents, and the inspector replied, in 

clarification, that a serious eye injury was "highly likely," not just "reasonably likely." Tr. 216. 

The judge overlooked this relevant documentary and testimonial evidence and~ hence, failed to 

address the record adequately. See, e.g., Mid-Continent Resources, Inc., 16 FMSHRC 1218, 

1222 (June 1994), and authorities cited. In concluding that the fourth Mathies element has been 

established, the Commission has relied on the opinions of a mine inspector concerning the 

seriousness of potential injury, including opinions set forth in the inspector's citation. E.g., 

Zeigler Coal Co., 15 FMSHRC 949, 954 (June 1993). Accord Buck Creek, 52 F.3d at 135-36. 

The evidence of record supports no other conclusion than the reasonably serious nature of 

the eye injury likely to occur as a result of the violation. See generally Donovan v. Stafford 

Constr. Co., 732 F.2d 954, 961 (D.C. Cir. 1984). We therefore conclude that the judge's 

contrary finding with regard to the fourth Mathies element is not supported by substantial 

evidence. Accordingly, we reverse.

8 

III. 

Conclusion 

For the foregoing reasons, we reverse the judge's determination that the violation was not 

S&S andremand for reconsideration of the civil penalty. 

8 Given our conclusion, we need not address the Secretary's "common life experience" 

presumption (S. Br. at 4). 

30 7 
Commissioner Doyle, dissenting: 

I must respectfully dissent from my colleagues' decision to reverse the administrative law 

judge's determination that the Secretary of Labor had failed to carry his burden of proving that an 

injury resulting from the violation in issue was reasonably likely to be reasonably serious. The 

majority has concluded that the judge's decision is not supported by substantial evidence and has 

reversed the judge based on their own determination that the "facts support only one oonclusion: 

forcibly propelled debris such as dirt, grease, or hot water striking the eye is reasonably likely to 

cause reasonably serious trauma." Slip op. at 4. The facts on which my colleagues rely to 

establish that conclusion are: (1) a pressurized jet of hot water and steam was being shot at close 

range, dispersing debris accumulated on the truck; and (2) hot water and dislodged materials 

splattered on the operator's face. Id I disagree that these facts give rise to no other conclusion 

than that it is reasonably likely that a reasonably serious injury will result. 

That all eye injuries are not ipso facto serious is evidenced by the Secretary's own 

regulations for the reporting of accidents, injuries, and illnesses set forth at 30 C.F.R., Part 50. 

Sections 50.20-3(a)(5)(i) & (ii) set forth the criteria for differentiating, for purposes of eye 

injuries, between first aid and medical treatment. First aid encompasses irrigation of the eye, 

removal <.M foreign material not imbedded in the eye, and the use of non-prescription eye 

medications. 30 C.F.R. § 50.20-3(a)(5)(i). Medical treatment encompasses removal ofimbedded 

foreign objects, use of prescription medications, and other professional treatment. 30 C.F.R. 

§ 50.20-3(a)(5)(ii). First aid is characterized as "one-time treatment, and any follow-up visit for 

observational purposes, of a minor injury" (emphasis added). 30 C.F.R. § 50.2(g). It appears that 

the potential injury here could well fall into the category of eye injury characterized by the 

Secretary as minor (one requiring only first aid) and which need not even be reported to MSHA 

on its Mine Accident, Injury, and Illness Report Form 7000-1. 30 C.F.R. §§ 50.2, 50.20. Thus, I 

disagree with my colleagues that the only possible conclu.sion is that forcibly propelled "dirt, 

grease, or hot water striking the eye is reasonably likely to cause reasonably serious trauma." Slip 

op. at 4. 

The majority also relies, in part, on the inspector's unsupported allegation, as set forth in 

the citation and his notes, that the injury would be serious. Neither document gives a basis for the 

inspector's opinion nor did he testify as to the basis for that opinion. Under my colleagues' 

analysis, the mere allegations set forth by the inspector in a citation or order would establish a 

prima facie case as to those allegations, including allegations that a violation wa:s S&S, and, as 

noted by Power, P.Br. at 3-5, shift the burden to the operator to rebut those allegations. I 

disagree that the Secretary's burden of proof is so easily met. 

I believe that my colleagues also err in relying on the facts of another case, OzarkMahoning Co., 8 FMSHRC 190 (February 1986), to establish S&S in this case. Slip op. at 4. 

The Commission has held that an S&S determination is a factual issue and must be based on the 

particular facts surrounding the violation, including the nature of the mine involved. Peabody 

308 
Coal Co., 17 FMSHRC 508, 511-12 (April 1995); Texasgulf, Inc., 10 FMSHRC 498, 501 (April 

1988). Moreover, the facts in the two cases are not the same. In Ozark-Mahoning, the 

undisputed evidence showed that miners without eye protection were using a percussion drill, not 

a hose, to drill into rock, not to clean a vehicle, and that rock fragments, not dirt, ·grease, or hot 

water, were being propelled as a result. 8 FMSHRC at 191. I do not agree that the facts of 

Ozark- Mahoning establish that the potential eye injury here is reasonably likely to be of a 

reasonably serious nature.

1 

Thus, I would affirm the judge's conclusion that the Secretary failed to sustain his burden 

of proving that the violation was S&S. 

1 In Ozark-Mahoning, the Commission relied primarily on the evidence of record as 

support for the judge's determination that the injury was reasonably likely to be reasonably 

serious, not on the dicta cited by the majority. 8 FMSHRC at 192. 

30 9 
Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Kathryn A. Kelly, Esq. 

Pepper, Hamilton & Scheetz 

P.O. Box 1709 

Wilmington, DE 19899 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

310 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

REB ENTERPRJSES, INC. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

HAROLD MILLER, employed by 

REB ENTERPRJSES, INC. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET N.W., 8TH FLOOR 

WASHINGTON, D.C. 20006 

March 20 . 1996 

Docket Nos. CENT 95-29-M 

CENT 95-30-M 

Docket No. CENT 95-239-M 

Docket No. CENT 95-240-M 

RICHARD E. BERRY, employed by 

REB ENTERPRJSES, INC. 

BEFORE: Jordan, Chairman; Doyle, Holen, Marks and Riley, Commissioners 

ORDER 

BY Tiffi 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"). On February 9, 1996, Administrative Law 

Judge Avram Weisberger issued an Order of Default entering judgment in favor of the Secretary 

of Labor and ordering REB Enterprises, Inc. ("REB") and Harold Miller and Richard E. Berry, 

employed by REB, to pay civil penalties of $7,550, $1,200, and $1,600, respectively. For the 

reasons that follow, we vacate and remand. 

311 
On December 5, 1994, the Secretary filed petitions, which REB answered, for assessment 

of civil penalties against REB for alleged violations of various safety standards. On September 

1, 1995, the Secretary filed petitions for assessment of civil penalties against Miller and Berry 

pursuant to section 1 IO(c) of the Mine Act, 30 U.S.C. § 820(c), for knowingly authorizing, 

ordering, or carrying out the alleged violations. Thereafter, the judge consolidated the cases and 

scheduled a hearing. 

On January 12, 1996, the Secretary filed a motion for default asserting that REB, Miller, 

and Berry had failed to respond to a prehearing order and that Miller and Berry had failed to 

answer the penalty petitions. On January 25, 1996, the Secretary filed a motion for 

postponement of the hearing. Judge Weisberger granted the motion for default on February 9, 

1996. 

On March 7, 1996, the Commission received a petition for discretionary review from 

REB, Miller, and Berry, requesting relief from default. 1 They explain that they had previously 

not been represented by counsel and were unfamiliar with Commission rules and procedures, and 

that the Secretary's motion for default and subsequent motion for postponement had "le[f]t the 

matter in a very confusing status to the laymen involved." REB Pet. at 3. 

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

February 9, 1996. 29 C.F.R. § 2700.69(b) (1995). 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). The petition was timely filed and we grant it. 

The Commission's procedural rules provide that a judge shall issue an order to show 

cause prior to entry of any order of default or dismissal unless a party fails to attend a scheduled 

hearing, in which case an order to show cause is not required. 29 C.F.R. § 2700.66(a) & (b). 

Here, the judge did not issue a show cause order affording the operator and individuals the 

opportunity to explain their failure to respond to the prehearing order or to answer the penalty 

petitions. It appears from the record that REB, Miller, and Berry, who were proceeding without 

counsel, were unfamiliar with Commission procedure, confused by the Secretary's filing of a 

motion for postponement after he had filed a motion for default, and did not appreciate the 

consequences of failing to respond to the motion for default. In addition, the pn~hearing order to 

which Miller and Berry failed to respond was issued before they were named as parties and made 

no direct reference to them. 

1 On March 14, 1996, the Commission received an amended petition for discretionary 

review. The amended petition was filed out of time. See 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). 

312 
For the foregoing reasons, we vacate the default order and remand this matter to the judge 

for further appropriate proceedings. See Patsy v. Big "B " Mining Co., 16 FMSHRC 1937, 1938 

(September 1994). 

Marc Lincoln Marks, Commissioner 

313 
Distribution 

James E. Crouch, Esq. 

Cypert, Crouch, Clark & Harwell 

P.O. Box 1400 

Springdale, AR 72765 

Robin S. Homing, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

525 Griffin St., Suite 501 

Dallas, TX 75202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

31 4 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 9 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, Docket No. CENT 95-29-M 

Petitioner A.C . No. 03-01640-05511 

v. 

REB ENTERPRISES, INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

HAROLD MILLER, 

Employed by REB ENTERPRISES, 

INC. I 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

RICHARD E. BERRY, 

Employed by REB ENTERPRISES, 

INC., 

Respondent 

Docket No. CENT 95-30-M 

A.C. No. 03-01640-05512 

REB Enterprises Inc. 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 95-239-M 

A.C. No. 03 -01640-05517 A 

REB Enterprises, Inc. 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 95-240-M 

A.C. No. 03-01640 -05518 A 

.REB Enterprises Inc. 

ORPER OF DEFAULT 

Before: Judge Weisberger 

On January 12, 1996, Petitioner filed a Motion for Default 

asserting that Respondents have not filed any response to the 

prehearing order issued on January 23, 1995. Petitioner further 

315 
asserts that Respondents Miller and Berry have not filed an 

answer to the Petitions for Assessment of Penalty filed in 

Docket Nos. CENT 95-239-M, and 95-240-M. A Certificate of 

Service appended to the Motion contains a certification by 

Petitioner's Counsel that on January 12, 1996, she mailed a copy 

of "the foregoing pleading ... upon all parties, representatives 

.... "To date, none of the Respondents filed a response to 

Petitioner's motion. Accordingly, and based on the assertions 

set forth in the motion, it is granted. 

It is ORDERED that the citations issued in these cases, and 

the associated penalties sought are affirmed. It is further 

ORDERED that within 30 days, Respondents shall pay a civil 

penalty as follows: REB Enterprise-$7,550; Richard E. Berry-

$1,600; and Harold Miller- $1,200. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Robin S. Horning, Esq., Office of the Solicitor, U.S. Department 

of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Mr. Harold Miller, 452 Perry Road, Springdale, AR 72764 

(Certified Mail) 

Richard E. Berry, Owner, REB Enterprises, Inc., Limestone Rock 

Products, P.O. Box 1639, 740 Highway 264 East, Springdale, 

AR 72765-1639 (Certified Mail) 

ml 

316 
FEDERAL JUD SAFBTY .um JIBAL'l'B RBVIBW COIOUSSXOH 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

~R 4 

ASARCO, INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

DAVID HOPKINS, 

Complainant 

v. 

ASARCO, INCORPORATED, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. CENT 95-8-RM 

Citation 4444361; 9/20/94 

Docket No. CENT 95-9-RM 

Citation 4328815; 9/21/94 

Sweetwater Mine 

Mine I.D. 23 -00458 

DISCRIMINATION PROCEEDING 

Docket No. CENT 95-122-DM 

Sweetwater Mine 

Mine I.D. 23-00458 

DECISION 

Appearances: 

Before: 

Margaret A. Miller, Esq., Office of the Solicitor, 

U.S. Department of Labor, Denver, Colorado, for 

the Secretary of Labor and David Hopkins; 

Henry Chajet, Esq., and M. Shane Edgington, Esq., 

Patton and Boggs, Washington, D.C. and Denver, 

Colorado, for Asarco, Inc. 

Judge Manning 

These cases are before me on (1) notices of contest filed by 

Asarco, Inc. ("Asarco") against the Secretary of Labor and his 

Mine Safety and Health Administration ("MSHA") under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq. (1988) ("Mine Act"); and (2) a complaint of 

discrimination brought by the Secretary of Labor on behalf of 

David Hopkins against Asarco under section 105(c) of the Mine 

Act. For the reasons set forth below, I find that Mr. Hopkins 

was discriminated against in violation of 105(c) of the Mine Act, 

and I affirm the two citations. 

317 
David G. Hopkins filed a discrimination complaint with MSHA 

pursuant to section 105(c) (2) of the Mine Act, 30 u.s.c. 

§ 815(c) (2). MSHA investigated the complaint, concluded that 

Asarco had violated the provisions of section 105(c) (1), and 

brought this discrimination action. During the course of its 

investigation, MSHA issued two citations. Asarco challenged 

these citations in the two contest proceedings. 

A hearing was held in these cases in Rolla, Missouri. The 

parties presented testimony and documentary evidence and filed 

post-hearing briefs. 

I. FINDINGS OF FACT 

Asarco operates the Sweetwater Mine, an underground lead and 

zinc mine in Reynolds County, Missouri. The mine produces about 

1.3 million tons per year and employs about 90 hourly workers and 

9 salaried employees underground. (Tr . 774). The mine uses a 

standard room and pillar mining method. The roof (back) is generally 16-18 feet high, but in some areas the roof can be up to 

60 feet high. (Tr. 775). In order to reduce the risk that 

miners and equipment will be struck by falling rock, the walls 

and roof of the mine are periodically scaled with a scaling bar 

to remove loose and weak rock. In areas where the roof is high, 

miners must get into the basket of equipment that is capable of 

raising them to a sufficient height to scale down any hazardous 

rock. The incident that gave rise to this discrimination case 

centers around a piece of equipment known as the 1311 High Scaler 

(the "high scaler"), which is described below . 

Mr. Hopkins was employed by Asarco at the Sweetwater Mine 

starting in February 1993. He had previously worked two years 

underground for another mining company. He started at Sweetwater 

as a laborer in the West end of the mine . He was subsequently 

transferred to the South end as a powderman. Finally, he was 

transferred back to the West end of the mine as a powderman. 

His supervisor was Douglas Swearengin, Shift Foreman. 

The powdermen on a crew are responsible for all explosives 

work on that shift. Because that work does not take the full 

shift, powdermen are also responsible for scaling do~n loose 

rock, as assigned by their supervisor. Scaling is a major part 

of a powderman's job. Mr. Hopkins was frequently assigned to 

scale areas of the mine by Mr. Swearengin. In general, there 

were two powdermen on Mr. Hopkins' shift and they worked as a 

team on all assignments including scaling. 

In most areas of the mine the roof is between 16 and 18 feet 

above the mine floor. In those areas, scaling is performed from 

the floor or from mobile equipment such as a Getman low scaler. 

In some areas, however, the roof is 60 feet above the mine floor. 

In those areas scaling must be performed from the basket of a 

318 
high scaler. The high scaler involved in this case is a large 

vehicle equipped with a two-part boom that operates like scissors 

to raise and lower the basket. The boom also swivels on a turntable so that the basket can swing from side to side. The high 

scaler functions much like a cherry picker used by power compa- nies, but is larger. Once the high scaler is moved into position 

and the outrigger jacks are set, the two miners who are going to 

scale get into the basket. The basket contains controls to raise 

and lower the boom and to operate the turntable. One miner operates the controls and the other miner bars down loose rock with a 

metal bar. 

The first time Mr. Hopkins was asked to high scale was with 

Thomas "Rick'' Huggins soon after he began working at the mine. 

They used a smaller high scaler, No. 1307, with controls that are 

of a different type from the No. 1311. (Tr. 740). The boom had 

to be fully extended to reach the back and when they came down 

the boom started jerking. The basket dropped about 10 feet and 

bounced. (Tr. 95, 741) . Mr. Huggins looked at Mr. Hopkins and 

laughed. Id. Mr. Hopkins became concerned about his safety and 

wondered if Mr. Huggins bounced the basket on purpose to scare 

him. {Tr. 96). Mr. Huggins testified that he has a nervous 

laugh and that the basket jerked because the boom of the small 

high scaler bounces when you bring it down from such a high 

level. {Tr . 74 1). 

Mr. Hopkins did not high scale again until he returned to 

the West end as a powderman. He scaled while Jerry Williams 

operated the controls of the 1311 high scaler. Mr. Hopkins testified that the high scaler rocked slightly, but that it was 

otherwise a "fine experience. " (Tr. 96). Starting sometime in 

July 1994, Mr. Hopkins began telling other miners during lunch 

that he would not high scale. He told other miners that he was 

afraid of heights and that it terrifies him to get into a machine 

that rocks. {Tr. 98). Mr. Hopkins testified that he was scared 

of the high scaler, in part, because of the stories he had heard 

about it. He stated that miners on his crew told him that the 

high scaler fell over once when the mine was owned by a different 

mine operator and that sometimes guys talked about "getting somebody in there and giving them a ride .... " {Tr . 99-100). He had 

also heard that the basket once became stuck against a rib and 

miners had to climb down on a rope. (Tr. 101). 

In July 1994, Mr. Huggins, who sometimes filled in for 

Mr. Swearengin, discuised the high scaler with Mr. Hopkins. 

Mr. Huggins testified that he ordered Mr. Hopkins to high scale 

and that he refused. {Tr. 750-52). Mr. Huggins said that he 

sent a note to Michael Mutchler, underground manager at Sweetwater, stating that Mr. Hopkins refused to highscale. 

Mr. Mutchler testified that he never received such a note, but 

that he remembers the incident. {Tr. 794). Mr. Hopkins testified that he discussed the high scaler with Mr. Huggins, but that 

~19 
he did not understand that he was being ordered to high scale. 

(Tr. 102-04) . 

On the morning of August 4, 1994, Mr. Hopkins. was called into Mr. Mutchler's office to discuss the high scaler. Mr . Mutchler testified that he called the meeting because Mr. Swearengin 

advised him that Mr. Hopkins had been bragging to the crew that 

he would not operate the high scaler. (Tr. 794 - 95). Owen 

Erickson, Safety Manager; Kenneth McCabe, General Mine Foreman; 

Larry Hampton, miners' representative; and Mr. Swearengin were 

also present at the meeting. Mr. Mutchler asked Mr. Hopkins why 

he was telling crew members that he would not operate the high 

scaler. Mr. Hopkins replied that he felt that the high scaler 

was old and unsafe to operate. (Tr. 108, 795-96). Mr. Mutchler 

asked Mr. Hopkins to list the specific safety problems he had 

with the high scaler and Mr. Hopkins could not do so. (Tr. 796). 

Mr. Hopkin s said that the basket rocks and sways when you operate 

it and that he had heard stories about past accidents. (Tr. 

181). Mr. Mutchler explained that the high scaler recently had 

major preventive maintenance work performed on it and that other 

miners told him that it was in good condition . (Tr. 796-97). 

Mr. Mutchler told Mr. Hopkins that high scaling was part of his 

job and that unless Mr. Hopkins had a specific safety complaint 

that could be addressed, he would be expected to high scale. 

(Tr . 799) . 

Mr. Hopkins also told Mr. Mutchler that h e was afraid of 

heights. (Tr. 232, 797) . Mr. Mutchler said that he woul d transfer him to the South end where high scaling is not a part of a 

powderman's day- to-day job. (Tr. 110, 798). Mr. Hopkins d i d not 

believe that he had to respond to the offer to transfer at that 

time so he did not immediately accept the offer. (Tr . 110- 11). 

During the meeting, mine management said that they would h ave 

MSHA inspect the high scaler to get a " third-party opinion" about 

the safety of the machine. (Tr. 798). After the meeting, 

Mr . Erickson called the local MSHA office and was advised that 

MSHA would not inspect the mine without a specific complaint 

being filed by ·a miner. 

After he went underground on August 4, Mr. McCabe told 

Mr. Hopkins that he could not transfer to the South end. (Tr. 

111, 855-56). Near the end of the shift Mr. Swearengin and 

Mr. McCabe approached Mr. Hopkins, and McCabe told Hopkins that 

he was nothing but a pain in the ass and that he had another 

meeting in Mr. Mutchler' s office at the end ·of the shift. (Tr. 

112). Mr. Hopkins believed that the meeting was held so that 

management could "flex ... their muscles. " (Tr. 112-13). 

Mr. Mutchler told Mr. Hopkins that high scaling was part of his 

job and that unless he could point to a specific safety problem 

on the high scaler, he would be expected to high scale. (Tr. 

801). At 5:00 p.m . , the end of Mr. Hopkins shift, Hopkins told 

Mr. Mutchler that unless he was paid overtime, he would leave the 

320 
meeting. (Tr. 113, 185-88, 802). The meeting ended abruptly. 

Mr. Mutchler believed that Mr. Hopkins was belligerent and 

uncooperative at the two meetings. {Tr. 799). 

on August 31, MSHA Inspector Robert Seelke inspected the 

mine. During the inspection, Erickson and Hampton asked him to 

closely examine the high scaler. Mr. Hopkins was asked to accompany Inspector Seelke so that he could discuss his safety 

concerns with the inspector. {Tr. 28-29). Mr. Hopkins refused 

the off er because he did not want to stir up any more trouble and 

he thought that the company would be " courteous enough" not to 

make him high scale. {Tr. 29, 115). Inspector Seelke inspected 

the h i gh scaler and did not issue any citations. 

On September 8, Mr. Hopkins and David A. Hooper were assigned to high scale by their supervisor, Doug Swearengin. 

Mr. Hopkins performed a preshift examination on the high scaler. 

He found what he believed to be several safety defects: a hole 

in the boom, a hydraulic leak in a metal tube inside the upper 

part of the boom, smashed hoses at the knuckle of the boom where 

the upper and lower booms pivot, a dent in the boom, play in the 

turntable for the boom, and a defective emergency relief valve. 

(Tr. 119-23, 347). Hopkins and Hooper told the mobile maintenance crew about the safety problems. Mechanic Rick Stevens told 

them that he was working on a drill and that he would come and 

look at the high scaler as soon as he was finished. {Tr. 124, 

78-79, 348). 

Before mobile maintenance arrived to look at the high 

scaler, Mr. Swearengin returned and asked Hopkins and Hooper why 

they were not high scaling. They replied that they were waiting 

for maintenance to check out problems they had found. Hopkins 

briefly described the problems he had found on his preshift. 

(Tr. 130, 368). Mr. Swearengin told Hooper and Hopkins to get on 

his tractor. He then drove them to a powder magazine and told 

them to wait there until he returned. (Tr. 130, 368-~9) . 

About a hour later, Mr. Swearengin returned to the powder 

magazine and told the miners to get on his tractor. He took them 

back to the high scaler and told them that the high scaler had 

been checked out and to start high scaling. {Tr. 131, 352) . Mr. 

Hopkins replied that he would be the judge of that because he was 

the one going up and he did not know what had been done to repair 

the high scaler. Id. At that point, Hopkins and Swearengin began inspecting the machine. The h igh scaler was started and 

Hopkins looked to see if the hydraulic leak had been repaired . 

Hopkins testified that he saw the same v-shaped spray of hydraulic fluid coming from inside the boom as he saw when he preshifted the high scaler. {Tr. 132). Hopkins testified that he 

believes that Mr. Swearengin saw the hydraulic leak because h e 

told Hopkins to go ahead and ride it and assured him that it 

would not fall because it has check valves. Id. Hooper and 

321 
Mutchler testified that Swearengin could not see the hydraulic 

leak. (Tr. 371, 825). 1 

Mr. Swearengin explained to Mr. Hopkins that hydraulic 

fittings had been tightened and that it was safe to operate . 

(Tr. 282-87, 743-45). Mr. Swearengin showed Hopkins how to use 

the emergency relief valve and explained that the hole and dent 

in the boom had always been there and did not present a hazard. 

(Tr. 370). He also explained that the play in the turntable did 

not create a safety hazard. Id. 

Hopkins continued to refuse to operate the high scaler principally because he believed that the hydraulic line was still 

leaking inside the boom. Swearengin kept on saying that he did 

not see the leak, but Hopkins did not believe him. (Tr. 136-37, 

227-28, 371, 825). Mr. Hopkins believed that the high scaler was 

unsafe to operate and he refused to operate it. (Tr. 133-34, 

352-53, 815-16). 

After Hopkins and Swearengin argued for a while, Swearengin 

told Hopkins and Hooper to shut down the high scaler and to get 

on the tractor because he was taking them to another section to 

low scale. As" they were getting on the tractor, Hopkins asked 

Swearengin to give his word that nobody else would run the high 

scaler because it was not safe to operate. Swearengin replied 

that it was none of his business and they argued further. Swearengin took them to the section where Huggins and Garry Moore were 

low scaling. He told Huggins to get on the tractor and took them 

to the shaft. At the shaft, Hopkins told Swearengin that if the 

leak was fixed he would operate the high scaler. (Tr. 134-35). 

Hooper told Swearengin that he did not want to go to the top. 

(Tr. 355, 760) . 2 Swearengin escorted Hopkins into the elevator 

and took him to the surface. Id. One the way up, Hopkins and 

Swearengin argued further about the leak in the hydraulic line 

and Hopkins called Swearengin a liar because he believed that 

Swearengin saw the leak but would not admit it. (Tr. 136-37). 

At the top Hopkins was escorted off of the property after he 

called his wife to come pick him up. (Tr. 137-38) . On September 12, Hopkins met with Mutchler and Erickson at the mine. 

Hopkins was informed that he was being terminated f rorn his 

employment for an improper work refusal and interference with 

management. (Tr. 835-36, 841). 

While Hopkins, Hooper, Huggins, and Swearengin were at the 

shaft on September 8, Hopkins told Huggins how to find the hydraulic leak in the boom. (Tr . 745-46) . Huggins went back and 

Mr. Swearengin did not testify at the hearing. 

2 Hooper believed that the hydraulic leak was a routine 

leak that did not present a hazard. (Tr. 354-55, 372). 

322 
looked for the leak, but could not find it. Id. He operated the 

high scaler on September 8, after Hopkins refused to operate it, 

without any problem. (Tr. 746). On September 21, Randall 

Blount, a mechanic, found a leak in the same location as the leak 

described by Hopkins. (Tr. 296-98, 304-05). He testified that 

the hydraulic line leaked only when you moved a particular lever 

on the controls to a certain position. (Tr. 297-98). Mr. Huggins testified that he observed a leak on September 21 "right 

where David [Hopkins) said there was a leak." (Tr. 746-47). He 

had to get on a ladder to see it. Id. 

Hopkins filed a discrimination complaint with MSHA on September 16. In his complaint, he alleged that: (1) a hydraulic 

hose or metal line inside the boom was leaking hydraulic fluid 

and that other hoses were dripping fluid at the knuckle; (2) a 

hole was present in the boom about 10 to 15 feet from the basket 

that had been cut with a torch; (3) the emergency valve would not 

let the basket down; (4) and the turntable of the boom had one 

inch of play. (Ex. R-3). 

on September 19, 1994, MSHA Inspector Michael Roderman 

inspected the high scaler for about three hours looking for 

safety problems described in a safety complaint, including the 

hydraulic leak in the boom. (Ex. P-15). He did not issue any 

citations on that day, but on September 21 issued Citation No. 

4328815 alleging a violation of 30 C.F.R. § 57.1400(b). The 

citation is five pages long and discusses each of the allegations 

raised by Mr. Hopkins. (Ex. P-14). In particular, the citation 

states that: (1) the high scaler had two holes in the metal hydraulic line inside the upper boom near the knuckle; (2) a 2~ 

inch by 3 inch hole had been cut in the upper boom; and (3) a 

section of the bottom side of the upper boom was bent as a result 

of contact with the top frame of the outrigger jacks. Id. In 

addition, the citation alleges that the emergency rotation 

("swing") motor for the turntable was missing. Id. Inspector 

Roderman determined that the alleged violation was not signif icant and substantial. 

On September 20, 1994, Ms. Judy Peters, an MSHA Special 

Investigator, was at the mine to talk with Mr. Erickson about 

Mr. Hopkins' dismissal. While she was at the mine, she observed 

two compressed gas cylinders in a hallway that were not secured 

in any manner. (Tr. 599). She issued Citation No. 4444361 alleging a violation of 30 C.F.R. § 56.16005. She determined that 

the alleged violation was not significant and substantial. 

II. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW 

A. DISCRIMINATION PROCEEDING (CENT 95-122-DM). 

Section 105(c) (1) of the Mine Act protects miners from 

retaliation for exercising rights protected under the Mine Act. 

3 23 
The purpose of .the protection is to encourage miners "to play an 

active part in the enforcement of the Act" recognizing that, "if 

miners are to be encouraged to be active in matters of safety and 

health, they must be protected against any possible· discrimination which they might suffer as a result of their participation.'' 

s. Rep. No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in 

Sen ate Subcommittee on Labor, Committee on Human Resources, 95th 

Cong., 2d Sess., Legislative History of the Federal Mine Safety 

a nd Health Act of 1977 , at 623 (1978). 

A miner alleging discrimination under t he Mine Act establishes a prima facie case by proving that h e engaged in protected 

activity and t hat the adverse action complained of was motivated 

in any part by that activity. Secretary on beh alf of Pasula v . 

Consolidation Coal Co ., 2 FMSHRC 2786, 2799- 2800 (October 1980), 

rev'd on other grounds sub nom. Consolidation Coal Co. v . Marshall, 663 F.2d 1211 (3d Cir. 1981). The mine operator may rebut 

the prima facie case by showing either that no protected activity 

occurred or that the adverse action was in no way motivated by 

the protected activity. Secretary on Behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). If an 

operator cannot rebut the prima facie case in this manner, it may 

ne vertheless affirmatively defend by proving that it was also motivated by the miner's unprotected activity and would have taken 

the adverse action in any event for the unprotected activity 

a lone . Haro v. Magma Copper Co., 1935, 1937 (November 1982). 

It is also well settled that section 105(c) protects "a 

miner's right to refuse work under conditions that he reasonably 

and in good faith believes to be hazardous." John A. Gilbert v. 

FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir 1989) (citations omitted). 

The Commission has consistently held that " the perception of a 

hazard must be viewed from the miner's perspective at the time of 

the work refusal." Id. 

1. Protected Activity 

I find that Hopkins had a reasonable good faith belief that 

the high scaler posed a hazard to his safety. His primary con -

cern was the hydraulic leak that he observed i n side the upper 

boom of the high scaler. He also was concerned about .the hole in 

the boom. 

With respect to the hydraulic leak, Hopkins was concerned 

t h at the basket could drop or could swing against a pillar. 

(Tr. 120) . Asarco questions whether this leak existed since 

Swearengin a nd Huggins could not find it on September 8. I 

credit the testimony of Hopkins. Blount testified that he found 

a leak in the same location on September 21 . (Tr. 296- 98 , 304 -

05). Huggins a lso testified that he saw the leak on that date. 

(Tr. 746-47) . Because the hydraulic line leaked only when the 

32 4 
basket was moved in a certain direction, it was not easy to 

detect. 

With respect to the hole in the boom, Hopkins was concerned 

that the area was "taking weight" because the top of the hole was 

"pooched out." (Tr. 121). Asarco contends that the hole did not 

present a safety problem and points to the fact that the high 

scaler had been operated safely for years with this condition. 

It also states ·that other miners had observed the hole in the 

boom and were not concerned that it presented a safety hazard. 

Indeed, it notes that Inspector Seelke did not issue a citation 

on the high scaler and Inspector Roderman testified that he would 

have operated the high scaler after he inspected it on September 

20. (Tr. 483-84, 486-87). I find, however, that Hopkins' perception of a hazard was reasonable despite the fact that the hole 

was not new. Indeed, I note that Asarco's expert witness, 

Kenneth Lau, testified that when he first saw the high scaler, 

he was concerned about the hole because of its sharp c orners. 

(Tr . 7 13 , 7 2 3 , 7 2 7 } . 

Asarco relies on National Cement Co. v. FMSHRC, 27 F.3d 526, 

533 (11th Cir . . 1994}, for the proposition that ''[i]f the work 

refusal is not ·objectively reasonable, there is no protected 

activity." In that case, however, the miner continued his work 

refusal after the operator suggested an alternative means to 

perform his work. The administrative law judge found that this 

alternative means was not unsafe, but held that the miner had 

engaged in protected activity. I interpret the Eleventh Circuit's decision to mean that a Commission judge should continue 

to view the hazard from the miner's perspective, but that an 

irrational or groundless fear cannot be the basis for protected 

activity because it is not "objectively" reasonable. In the 

instant case, I find that Hopkins' perception of the hazards was 

"objectively'' reasonable. His perception of the hazard was not 

so groundless or irrational as to fail an objective test. 

I also find that Hopkins' work refusal was made in good 

faith. Immediately following his preshift examination, Hopkins 

asked the mobile maintenance crew to check out the items that 

were of a concern to him and Mr. Hooper. Miners often ask mobile 

maintenance to examine equipment that needs repair, particularly 

if the miner's immediate supervisor is not present. (Tr. 54, 

274-75, 284, 350, 399, 749). Swearengin was making his rounds at 

the time of Hopkins' preshift examination. Hopkins communicated 

his concerns to Swearengin when he returned to the section. 

I have taken into consideration the fact that Hopkins was 

afraid of heights. A miner's refusal to work at a high location 

solely because of a fear of heights is not protected under the 

Mine Act because he does not have a good faith belief that the 

work is hazardous. In addition, such a work refusal would not 

325 
be reasonable because it would not pass the Eleventh Circuit's 

objective test in National Cement. I find, however, that 

Hopkins ' refusal to work was based on the safety problems he 

observed during his preshift examination. Hopkins told the crew 

on a number of occasions that h e did not want to work on the high 

scaler. He even bragged that he would not do so. I believe that 

he made these statements because of his fear of heights and because he was afraid of the high scaler as a result of his exp erience and the stories he had heard about it. Nevertheless, he 

testified that he would have high- scaled on September 8 if the 

hydraulic leak was repaired. (Tr. 135, 245). I credit this 

testimony. He told at least one other miner that he would high 

scale in order to keep his job. (Tr. 305-06) Thus, his work 

refusal on September 8 was motivated by his safety concerns. 3 

A miner' s work refusal is not protected if the operator addresses his safety concerns " in a way that his fears reasonably 

should have been quelled." Gilbert, 866 F.2d at 1441. Asarco 

contends that it went to great lengths to address Mr . Hopkins' 

safety concerns. It points to the two meetings of August 4 at 

which Hopkins was asked to describe his safety concerns with the 

high scaler. It also refers to the fact that Hopkins was invited 

to accompany Inspector Seelke during his inspection of the high 

scaler on August· 31. In addition , Mr. Swearengin inspected the 

high scaler with Hopkins on September 8 and Mr. Huggins inspected 

it after Hopkins and Hooper were transported to the powder magazine. Asarco argues that in each instance it attempted to address Hopkins' fears. Asarco argues that Hopkins acted unreasonably because he did not provide any specific safety concerns at 

the August 4 meetings, he refused to inspect the high scaler with 

the MSHA inspector and he continued to refuse to operate the high 

scaler after his concerns were addressed by Swearengin . 

Asarco was diligent in attempting to discover why Hopkins 

was concerned about the high scaler. I credit Asarco's evidence 

that the Sweetwater Mine encourages miners to raise safety complaints and that management attempts to address these safety 

3 Asarco argues that Hopkins' work refusal was not based on 

his safety concerns because he testified that he had decided that 

he would not high scale before he preshifted the machine. (A . 

Br. 9; A. Reply Br. 2). Hopkins testified that before he preshifted the high scaler on September 8, he "already knew what was 

wrong with it." (Tr. 245). He went on to testify that he had 

previously decided that he would not high scale if the problems 

he believed existed "weren't corrected." Id. He further stated 

that he wou l d have operated the high scaler if the hydraulic line 

had been fixed. Id. I do not interpret this testimony to mean 

that Hopkins had decided that he would not high scale under any 

circumstances. His apprehension was rooted in his concerns about 

the safety of the machine. 

326 
concerns. Indeed, the mine has never had a discrimination claim 

under the Mine .Act prior to this case. (Tr. 786-87) . In the 

particular facts of this case, however, I find that Swearengin 

did not address Hopkins' safety concerns "in a way that his fears 

reasonably should have been quelled" Gilbert, 866 F.2d at 1441. 

Asarco relies on the Commission's decision in Secretarv ex 

rel . Bush v. Union Carbide Corp., 5 FMSHRC 993 (June 1983} in 

making its argument. In that case, the Commission held that 

where "the necessary communication between the miner and operator 

has occurred and management has taken corrective measures at some 

point repetition of the same complaint and work refusal loses the 

protection of the Mine Act." 5 FMSHRC at 998 . There are two 

significant differences between that case and the instant case. 

First, the operator had totally corrected the condition that 

prompted Mr. Bush's work refusal. Id . Mr. Bush could not articulate any further safety problems. Second, Mr. Bush made it 

quite clear that he would not per.form his assigned task under any 

circumstances. As stated above, Hopkins believed that the leak 

in the hydraulic line had not been corrected and he told Swearengin that he would operate the high scaler if the leak was fixed. 

Although mine management tried to get Hopkins to explain his 

concerns at the August 4 meetings, Hopkins saw the meetings as an 

opportunity for management to "flex ... their muscles. " (Tr. 

112-13, 188). He believed that he was being "hammered" by management for raising concerns about the high scaler and that he 

had been "drug [into these meetings) five against one. 11 (Tr. 

188, 232) . 4 

When Hopkins and Hooper discovered the hydraulic leak and 

the other safety items during the preshift examination on September 8, they sought the aid of the maintenance crew. When 

Swearengin discovered that Hopkins and Hooper had asked the 

maintenance crew to look at the high scaler, Swearengin took 

Hopkins and Hooper to a powder magazine and told the maintenance 

crew not to look at the high scaler. Instead, Mr . Huggins, a 

miner with extensive experience with the high scaler, examined 

the machine . Huggins, by his own admission, had no mechanical 

experience and testified that if he had a mechanical problem he 

would have a mechanic look at it. (Tr. 748 - 49) 

4 I do not understand why Hopkins did not take the opportunity to express his concerns to Inspector Seelke on August 31. 

He testified that he believed he would get in trouble and have to 

attend more meetings if he pointed out problems to the inspector. 

{Tr . 29, 115}. While Hopkins may have been required to attend 

more meetings, the record does not indicate that Asarco would 

have disciplined him for actively participating in the inspection. Nevertheless, his failure to participate is not fatal to 

his discrimination complaint. 

327 
After Hopkins and Hooper were brought back to the high 

scaler, they were told that it had been "checked out" and that 

they should high scale. Hopkins was genuinely apprehensive. He 

did not understand why he had been made to sit in a powder magazine for over an hour and he did not know what if anything had 

been done to correct the perceived safety problems. He did not 

know who, if anyone, had examined the machine. There is no d ispute that Hopkins and Swearengin did not get along. The witnesses testified that there was a personality conflict between them. 

When Hopkins showed Swearengin the leak in the hydraulic line, 

Hopkins believed that Swearengin saw it but was not concerned 

about it. 

Asarco contends that it was within swearengin's authority to 

have Huggins examine the high scaler in lieu of a mechanic. It 

maintains that mobile maintenance was busy with other work, and 

supervisors have full authority to respond to safety complaints 

and to release equipment into production after the complaint is 

checked out. Although the record establishes that Swearengin did 

have such authority, that fact does not resolve the question. 

The witnesses testified that a mechanic frequently examines 

equipment in such circumstances. (Tr. 39, 54-56, 70, 79-80, 274-

75, 284, 350 , 399, 749). It is highly unusual for a supervisor 

to take a miner away from his work station to wait for a hour in 

a powder magazine after safety problems are raised. Moreover, 

after Hopkins was brought back to the high scaler, he observed 

the same leak in the hydraulic line and he was not told what had 

been done to correct the problems he reported. Accordingly, 

Hopkins' fears were not reasonably quelled. 5 

At first, Swearengin offered Hopkins and Hooper alternative 

work. When Hopkins asked Swearengin to give his word that other 

miners would not use the high scaler, Swearengin took Hopkins and 

Hooper to the mine shaft, instead . Hooper agreed to go back and 

high scale, but Hopkins continued to insist that the h igh scaler 

was not safe. Asarco contends that Hopkins' i nsistence that 

other miners not use the high scaler until his safety concerns 

were addressed is not protected under the Mine Act. It maintains 

that Hopkins was taken out of the mine only after "he refused to 

allow Swearengin to let another miner operate the high scaler until he cleared it." (A. Br. at 16). In Consolidation . Coa l Co. 

v. Marshall, 663 F.2d 1211, 1219 (3d Cir 1981) , the court held 

that "the Mine Act does not provide for the right to shut down 

5 As discussed above, Hopkins also described other hazards: 

hoses dripping hydraulic fluid at the knuckle, a defective 

emergency relief valve, and play in the turntable. I find that 

these items were either repa i red by Asarco after Hopkins pointed 

them out or ·were addressed by Asarco in such a way that his fears 

reasonably should have been quelled. In addition, Hopkins was 

willing to operate the high scaler with the hole in the boom. 

328 
equipment so that other miners may not work." (emphasis in original). The court held that the complainant's termination did not 

violate the Mine Act because "no one has the right to stop others 

from proceeding to work if they so wish." Id. 

In Consolidation Coal, the complainant, David Pasula, shut 

down a continuous miner and prevented the only other qualified 

miner on the shift from operating it. Thus, he shut down all 

coal production on the section. In addition, Pasula refused his 

right to have a safety committeeman evaluate the hazard. Id. at 

1120. It was only after he refused all other options and he shut 

down the machine that he was taken out of the mine. Id. at 1120-

21. In the present case, Swearengin ordered Hopkins and Hooper 

to shut down the high scaler. Although Hopkins asked Swearengin 

to give his word that no other miner would high scale, he did not 

prevent anyone else from using it. It was Swearengin not Hopkins 

who had the authority to assign work. Other qualified miners 

were willing and able to high scale. Thus, Asarco's argument 

that Hopkins "refused to allow Swearengin to let another miner 

operate" the high scaler is not supported by the record. 

Swearengin could have simply said "no" to Hopkins' request. 

2. Motivation for Hopkins' Dismissal 

Hopkins was terminated, at least in part, for his protected 

activity. Mr. Hooper was taken to the shaft along with Hopkins 

for his refusal to work in the high scaler. When Hooper agreed 

to high scale, he was not taken to the surface for disciplinary 

action. Hopkins continued his refusal to work in the high scaler 

because of the hydraulic leak and was terminated. Thus, his 

termination was motivated at least in part by his protected 

activity. 

The issue is whether Asarco was also motivated by Hopkins' 

unprotected activity and would have terminated him in any event 

for these unprotected activities. Mr. Mutchler, the underground 

manager, testified that Hopkins was not terminated for his alleged safety concerns but was terminated for refusing to do his 

normal work without a valid reason and interfering with Swearengin' s operation of his crew. (Tr. 841-42, 878). 

It is true that Hopkins refused to do his normal work, scale 

loose rock, but his refusal was a direct result of his belief 

that the high scaler was unsafe to operate. Mutchler and Swearengin did not consider the high scaler to be unsafe and, therefore, characterize his work refusal as insubordination. 

Mr. Mutchler believes that Hopkins was malingering because he did 

not want to high scale. Thus, in Mr. Mutchler's mind "there was 

no relationship whatsoever" between Hopkins' safety concerns and 

his termination. (Tr. 842). I have determined that Hopkins had 

a reasonable, good faith belief that the high scaler was unsafe 

to operate. Mr. Mutchler and Swearengin had knowledge of 

329 
Hopkins' safety concerns but did not take the necessary steps to 

quell his concerns, as discussed above. Thus, I find that there 

was a direct relationship between Hopkins' safety concerns and 

his dismissal by Asarco. 

Asarco asserts that it would have terminated Hopkins solely 

for his unprotected activity. First, it contends that Hopkins 

was terminated for refusing to allow Swearengin to put other 

miners on the high scaler. As discussed above, Hopkins was not 

in charge and did not "refuse to allow" anyone else to high 

scale. Second, Asarco contends that Hopkins repeatedly called 

Swearengin a liar on September 8 and that such insubordination 

was not protected. There is no question that Hopkins called 

Swearengin a liar at least twice because Hopki ns believed 

Swearengin saw the leak in the hydraulic line but would not admit 

it. Bad mouthing a supervisor is not protected under the Mine 

Act. {See, for example, my decision in Sorensen v. Intermountain 

Mine Services, 17 FMSHRC 145 (February 1995)). I find, however, 

that Hopkins was not fired because he ca lled Swearengin a liar. 

Employees sometimes became emotional during disputes with a supervisor and Hopkins was known to be rather hotheaded. Hopkins 

would not have been fired for this conduct alone. I find that 

Asarco has not established that it would have discharged Hopkins 

for his unprotected activity. 6 

3. Remedy 

Although he was employed at the time of the hearing, Hopkins 

testified that he might want to be reinstated because his current 

job may only be temporary. (Tr. 909). He was not sure that he 

would seek reinstatement if he prevailed in this proceeding. Id. 

Asarco contends that reinstatement should not be awarded because 

Hopkins stole the September 8 preshift examination card for the 

high scaler. Hopkins admitted that he took the preshift examination card when he left the mine on September 8. (Tr. 212-13). 

Apparently it was in his pocket when he was escorted from the 

mine . He later gave it to MSHA and it was not returned to Asarco 

until the discovery phase of this case . Theft of company property is grounds for dismissal at the Sweetwater Mine. (Tr . 779-

80) . 

In making this argument, Asarco relies on the Supreme 

Court's decision in McKennon v. Nashville Banner Pub. Co., 115 

s.ct. 879 (1995). In that case, the employer discovered during 

6 Mr. Mutchler also testified that he took into consideration Hopkins' work history, including incidents involving cutting fuses too short and distributing religious literature after 

being instructed not to. I find that he would not have been discharged for these unprotected activities. 

330 
discovery that the plaintiff in an age discrimination case had 

copied confidential documents that disclosed financial information about the company. It sought to have the case . dismissed for 

the theft. The Supreme Court held that after-acquired evidence 

of the employee's theft did not bar the age discrimination suit, 

but held that it had a bearing on the remedies available. Specifically, the Court ruled that reinstatement would be inequitable because the employee would have been terminated in any 

event for the theft. 

The facts in McKennon are different from the case presented 

here. There is no evidence that Hopkins' theft of the preshift 

card was anything but inadvertent. He had it in his pocket when 

he was escorted from the mine. It is understandable that an employee would forget such a card when he believes that he is being 

fired. He testified that he did not think it had any value to 

the company because it did not contain any production information. (Tr. 212-13). (That information is added at the end of 

the shift.) It did contain a list of the problems he found on 

the high scaler. (Ex. P-4). In McKennon, however, the employee 

admitted that she took the confidential information in the months 

prior to her discharge to protect herself in case she was fired 

on the basis of .economic necessity. Thus, the employee in 

McKennon intentionally took confidential information from her 

employer. There is no evidence that Hopkins intentionally stole 

Asarco's property. "Where an employer seeks to rely upon afteracquired evidence of wrongdoing, it must first establish that the 

wrongdoing was of such severity that the employee in fact would 

have been terminated on these grounds alone if the employer had 

known at the time of discharge." McKennon, 115 s.ct. at 886-87. 

A miner who inadvertently walks off with a preshift examination 

card would not be terminated by Asarco. Moreover, if Hopkins had 

not been terminated, it is unlikely that he would have taken the 

card. Accordingly, reinstatement is not barred by McKennon. 

B. CONTEST PROCEEDINGS (CENT 95-8-RM & CENT 95-9-RM). 

1. High scaler Citation 

Citation No. 4328815 alleges that the following four defects 

affecting safety were present on the high scaler: (1) a leak in 

the hydraulic line inside the upper boom near the knuckle; (2) a 2~- by 3-inch hole in the upper boom; (3) a dent in the upper 

boom; and (4) a missing emergency swing motor for the turntable. 

(Ex. P-14). The citation alleges a violation of 30 C.F.R. 

§ 57.14100(b) which provides: "Defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely 

manner to prevent the creation of a hazard to persons." Inspector Roderman determined that the violation was not significant 

and substantial. 

331 
For the reasons discussed below, I find that the Secretary 

has not established that the hole and the dent in the upper boom 

were defects that affected safety. I also find that the Secretary failed to establish that an emergency swing motor was missing from the high scaler. I find, however, that the hydraulic 

leak in the upper boom affected safety and that this defect was 

not corrected in a timely manner to prevent the creation of a 

hazard. 

Inspector Roderman did not observe the leak in the hydraulic 

hose when he inspected the high scaler on September 19. (Tr. 

445). He spent a considerable amount of time looking for the 

hydraulic leak described in the complaint. (Tr. 477-78, 545) He 

did not see the leak on September 21 when he returned to the 

mine. (Tr. 445) . Roderman testified that an hourly maintenance 

employee approached him when he arrived on September 21 and said 

that the leak he had been looking for had been found. (Tr. 446, 

543-44). The leaking hydraulic line had been repaired sometime 

before the inspector arrived by bypassing it with a new hydraulic 

hose. (Tr. 298-300, 446). The miner described the V-shaped 

spray but could not say how long the leak had been there. (Tr. 

446). Huggins and Blount also saw the leak on September 21. The 

leaking line controlled the rotation of the turntable for the 

boom . Inspector Roderman was concerned that the leak could cause 

the basket to "swing around and overturn, ... (or) hit a pillar 

or rib and maybe throw someone from the basket." (Tr. 448). 

Inspector Roderman testified that, in general, one would 

expect to see a leak of the magnitude described by the mechanic 

who reported it to him on September 21. (Tr. 553-55, 560). He 

stated that he looked for the leak on September 19 while the boom 

was in motion, but that he was not inspecting for leaks when the 

turntable was moved from side to side. (Tr. 553, 585). Inspector Roderman does not know when the leak occurred. {Tr. 545, 

569). He assumed that the leak that was found on September 21 

was the same leak that Hopkins saw on September 8 because it had 

the same V-shaped spray and was in the same location. (Tr . 570-

71) . 

I credit the testimony of Roderman, Blount, and Huggins that 

a hole existed in the hydraulic line on September 21, · 1994. I 

also credit the testimony of Inspector Roderman and Michael 

Sheridan, an MSHA engineer, that such a hydraulic leak constitutes a defect that affects safety. (Tr. 448, 647). It is impossible to know how long the leak existed or if it was the same 

leak that Hopkins saw on September 8. On one hand, there is 

evidence that such a leak would be readily obvious because it 

would cause hydraulic fluid to pour out of the upper boom at a 

fairly steady rate. (Tr. 769). There is also evidence that such 

a hole can develop in a matter of minutes. (Tr. 312-13). On the 

other hand, there is evidence that the hole in the hydraulic line 

only sprayed significant amounts of fluid when the turntable was 

332 
moved. Charles Walker, a miner at the Sweetwater Mine, testified 

that he operated the high scaler between September 8 and 21. 

(Tr. 70-71). He stated that the high scaler "still ran a little 

hydraulic oil out of the boom, but you still couldn't see (any] 

leak." (Tr. 71). 

Based on this evidence and the record as a whole, I find 

that the leak was not corrected in a timely manner. I find that 

it is likely, although far from certain, that the leak had existed since the time Hopkins observed it on September 8. It was 

difficult to see the V-shaped spray because it was inside the 

boom and it only sprayed when the controls were operated in a 

certain manner. Mr. Hopkins and Hooper reported that the boom 

was leaking on September 8. Walker stated that the boom leaked 

hydraulic oil at the time he operated it. Garry Moore and 

Huggins checked the boom for leaks while Hopkins and Hooper were 

at the powder magazine on September 8. They testified that they 

found a leak in the boom but fixed it by tightening a fitting. 

(Tr. 282-83, 744-46). It is possible that this repair did not 

fix the leak. Inspector Roderman did not see the leak on September 19, but stated that the turntable was not moved while he 

was looking at t .he boom. In any event, I find that the leak had 

existed for some . length of time. 

I recognize that older mining equipment is bound to leak 

hydraulic fluid. 7 Minor leaks are to be expected and do not pose 

a safety hazard. Nevertheless, the leak in the boom was more 

than a routine leak; it affected safety, and was not timely 

corrected. 

The hole in the boom had existed for as long as anyone could 

remember. The hole had apparently been cut to facilitate the replacement of hydraulic hoses. The Secretary has not established 

that this hole was a defect that affected safety. Mr. Sheridan, 

the Secretary's engineer, testified that the hole was not a ha zard unless cracks developed around the hole. (Tr. 642, 683). He 

recommended that the operator monitor the hole for cracks. 

Neither Sheridan nor Inspector Roderman saw any cracks around the 

hole and the photographs do not show any cracks. (Tr. 482 , 645; 

Exs. P-6E, P-6F). Kenneth Lau, Asarco's engineer, did not observe any cracks and concluded that it was reasonable f°or the 

mine to operate the high scaler with the hole in the boom. (Tr. 

704 , 711) . Inspector Roderman included this allegation in the 

citation because he was told to by a supervisor in MSHA's Dallas 

office. (Tr. 448-50, 561- 62). 

I also find that the dent in the boom did not create a safety hazard. Mr. Sheridan testified that the dent was not a major 

7 The 1311 high scaler had been in operation at this mine 

since 1974. (Tr. 437). 

333 
distortion and that it did not create a safety risk. (Tr. 684). 

Mr. Lau did not find any -cracks around the dent and concluded 

that it was reasonable for the mine to operate the high scaler 

with the dent in the boom. (Tr. 704, 711). When Inspector 

Roderman saw the dent on September 19, he concluded that it did 

not create a hazard. (Tr. 487). He included this allegation in 

the citation o nly after he talked to a supervisor in MSHA's 

Dallas office. (Tr. 452). 

Finally, I conclude that the Secretary did not establish 

that the emergency swing motor was missing from the high scaler. 

Inspector Roderman testified that he believed that the emergency 

swing motor was missing from the high scaler. (Tr. 454-56). He 

based his finding, in part, on his experience operating this particular high scaler when he worked for the previous operator of 

the mine. Id. According to Roderman, this motor allows the boom 

and turntable to rotate. Mr. Sheridan, in his report, stated 

that a swing motor was missing. (Ex. P-2). He testified, however, that he did not look for a swing motor. (Tr. 674-75). 

Mr. Mutchler testified that the high scaler was never equipped 

with the type of emergency swing motor that Inspector Roderman 

said was missing. (Tr. 842-49). He further testified that the 

high scaler was equipped with two motors that can be used to turn 

the boom and turntable: a hydraulic motor, and an electric motor. 

Id. Using photographs and other exhibits, he showed where these 

motors were located. Because these motors were incorporated into 

the structure of the high scaler, he stated that they were somewhat hidden from view. Id. I credit Mr. Mutchler's testimony in 

this regard and find that an emergency swing motor was not missing from the high scaler. 

2. Compressed Gas cylinder Citation 

On September 20, 1994, Inspector Peters issued citation No. 

4444361 alleging a violation of 30 C.F.R. § 56.16005. The citation states, in part: "Two compressed gas cylinders both labeled 

ful l oxygen containers were observed lying on the floor beside 

the mail box in the main office." (Ex. P-3). The citation further states that employees were observed in the area and that she 

was told that the cylinders were there for less that two hours. 

(Tr. 599). Section 57.16005 states that " (c]ompressed and liquid 

gas cylinders shall be secured in a safe manner." Inspector 

Peters determined that the violation was not significant and 

substantial . 

Asarco did not offer any evidence or argument on this citation. Accordingly, ·I credit the testimony of Inspector Pe ters 

with regard to this matter and affirm the citation. 

334 
III. ORDER 

A. CENT 95-122-DM 

For the reasons set forth above, I conclude that the discharge of David G. Hopkins by Asarco in September 1994, violated 

section 105(c) of the Mine Act. consequently, it is ORDERED 

that: 

1. Within 21 days of the date of this decision, the parties 

shall confer in person or by telephone for the purposes of: 

(a) stipulating to the position and salary to which 

Mr. Hopkins should be reinstated at Asarco's Sweetwater Mine, if 

he seeks reinstatement; 

(b) stipulating to the amount of back pay and interest 

computed from September 9, 1994, to the present, less deductions 

for unemployment benefits and earnings from other employment; 

(c) stipulating to any other reasonable and related 

economic losses or litigation costs incurred as a result of 

Mr. Hopkins' September 1994, discharge . 

2. If the parties are unable to stipulate to the appropriate relief in this matter, Complainant shall file, within 40 days 

of the date of this decision, a proposed order for relief. This 

proposed order shall be s upported by documentation, including 

check stubs from his prior and current employment, notices of 

unemployment compensation awards , and bills and receipts to support any other losses or expenses claimed. 

3 . Asarco shall have 20 days to reply to Complainant's 

proposed order for relief. 

4. Pursuant to 29 C.F.R. § 2700.44(b), the Secretary is 

urged to file with the Commission, within 45 days, a n appropriate 

petition for assessment of civil penalty for Asarco's violation 

of section 105(c) of the Mine Act. 

5. This decision does not constitute my final decision in 

CENT 95-122-DM until my f,inal order for relief is entered . 

Asarco's stipulation of any matter regarding relief shall not 

waive or lessen i t s right to seek review of this decision on 

liability or relief. 

335 
B. CENT 95-8-RM 

For the reasons set ·forth above, Citation No. 4444361 is 

AFFIRMED. No civil penalty can be assessed at this time because 

the Secretary of Labor has not filed a petition for assessment of 

penalty under 29 C.F.R. § 2700.28. 

C. CENT 95-9-RM 

For the reasons set forth above, Citation No. 4328815 is 

AFFIRMED as to the allegation concerning the leak in the hydraulic line in the boom of the 1311 High Scaler, and is VACATED as 

to all other allegations. No civil penalty can be assessed at 

this time because the Secretary of Labor has not filed a petition 

for assessment of penalty under 29 C.F.R. § 2700.28. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716 

(Certified Mail) 

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, ·Washington, 

DC 20037-1350 {Certified Mail) 

M. Shane Edgington, Esq., PATTON BOGGS, 1660 Lincoln Street, 

Suite 1975, Denver, CO 80264 {Certified Mail) 

RWM 

336 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 5 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. KENT 95-322 

Petitioner A.C. No. 15-17164-03544 

v. 

NARROWS BRANCH COAL INC. I 

Respondent 

Docket No. KENT 95-388 

A.C. No . 15-17164-03545 

Docket No. KENT 95-424 

A.C. No. 15-17164-03546 

Docket No. KENT 95-447 

A.C. No. 15- 17164-03547 

Mine No . 1 

DEFAULT DECXSIQN 

Before: Judge Weisberger 

On January 24, 1996, an order was issued which provided as 

follows: 

It is ORPERED that Respondent shall within 10 days of 

this order either file a statement setting forth good 

cause why it should not be held in default, or sign and 

file the original joint motion to approve settlement . 

If Respondent shall not comply with this Order, a 

default decision will be issued finding Respondent in 

default, and ordering Respondent to pay a civil penalty 

of $33,947, the total amount sought by Petitioner in 

the Petitions for Assessment of Penalty filed in these 

cases. 

337 
Respondent has not complied with this Order. Respondent has 

not filed a statement setting forth good cause why it should not 

be held in default; nor has it signed and filed the original 

Joint Motion to Approve Settlement. 

Accordingly, it is found that Respondent is in default, and 

it is ORDERED that Respondent pay a civil penalty of $33,947. 

~isb~ Administrative Law Judge 

Distribution: 

Joseph Luckett, Esq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

Darrell Williams, President, Narrows Branch Coal, Inc., 

P.O. Box 428, Hardly, KY 41543 (Certified Mail) 

/ml 

3 38 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, SUITE 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 5 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

THE PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

Docket No. KENT 96-38 

A.C. No. 15-17044-03573 

Docket No. KENT 95-785 

A.C. No. 15-17044-03570 

Sebree #1 Mine 

DECISION 

Appearances: Arthur J. Parks, Conference & Litigation 

Representative, U.S. Department of Labor, 

Madisonville, Kentucky, for Petitioner; 

Before: 

John H. Miller, Esq., The Pittsburg. & Midway 

Coal Mining Company, Englewood, Colorado, for 

Respondent. 

Judge Melick 

These cases are before me upon petitions for assessment of 

civil penalty under Section l05(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act) . During hearings the parties moved 

to approve a settlement agreement and to dismiss the cases. 

Deletion of the "significant and Substantial" findings from 

Citation No. 4061992 and a reduction in penalty from $228 to $51 

were proposed. I have considered the representations and 

documentation submitted, including testimonial and documentary 

evidence received at hearing, and I conclude that the proffered 

settlement is acceptable under the criteria set forth in Section 

llO(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRAN'l'ED, 

and it is ORDERED that Responden pay a penalty of $51 within 

30 days of this order. 

Gary Mel 

Administ 

339 

Law Judge 
Distribution: 

Arthur J. Parks, Conference & Litigation Representative, U.S. 

Dept. of Labor, MSHA, 100 YMCA Drive, Madisonville, KY 42431 

John H. Miller, Esq., The Pittsburg & Midway Coal Mining 

company, P.O. Box 6518, Englewood, CO 80155-6518 

/jf 

340 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LA~ JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 6 1996 

SECRETARY OF LABOR, DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of RONNIE GAY, 

Complainant 

v. 

IKERD-BANDY CO., d/b/a 

COCKRELL'S FORK MINING 

Respondent 

Docket No. KENT 95-597-D 

BARB CO 95-08 

Perry County No. 1 Strip 

Mine ID 15-08038 

DECISION 

Appearances: .Anne T. Knauff, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee for 

the Complainant; 

Before: 

William I. Althen, Esq. and Donna c. Kelly, Esq., 

Smith, Heenan and Althen, Washington, o.c. 

and Charleston, West Virginia, respectively on 

behalf of Respondent. 

Judge Melick 

This case is before me upon the complaint by the Secretary 

of Labor on behalf of Ronnie Gay under Section 105(c) (2) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

seq., the "Act," alleging that Ikerd-Bandy Company, Inc. (IkerdBandy) violated Section 105(c) (1) of the Act when it did not hire 

Mr. Gay, an applicant for employment, in early July 1994. 1 In a 

1 Section 105(c) (1) of the Act provides as follows: 

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 employment in any coal or other mine subject 

to this Act because such miner, representative of miners or 

applicant for employment 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 cola or other mine of an alleged danger or 

safety or health violation in a coal or other mine, or 

because such miner, representative of miners or applicant 

for employment is the subject of medical evaluations and 

341 
preliminary motion to dismiss Ikerd-Bandy argues that Mr. Gay 

failed to meet the filing requirements under Section 105(c) (2) of 

the Act in that he "unjustifiably failed to file the charge of 

discrimination within (60) days of the date of the alleged 

violation, and the delay results in some specific prejudice to 

Respondent". 

Motion to Dismiss 

In relevant part, Section 105(c) (1) of the Act prohibits 

discrimination against a miner or applicant for employment 

because of his exercise of any statutory right afforded by the 

Act. n.1, supra. If a miner or applicant for employment believes 

that he has suffered discrimination in violation of the Act and 

wishes to invoke his remedies under the Act, he must file his 

initial discrimination complaint with the Secretary of Labor 

within 60 days after the alle~ed violation in accordance with 

Section 105(c) (2) of the Act. The Commission has held that the 

purpose of the 60-day time limit is to avoid stale claims, but 

that a miner's late filing may be excused on the basis of 

"justifiable circumstances." Hollis v. Consolidation Coal 

Company, 6 FMSHRC 21 (1984); Herman v. IMCO Services, 4 FMSHRC 

2135 (1982). 1,n those decisions the Commission cited the Act's 

legislative history relevant to the 60-day time limit: 

While this time-limit is necessary to avoid 

stale claims being brought, it should not 

be construed strictly where the filing of 

a complaint is delayed under justifiable 

Footnote 1 Continued 

potential transfer under a standard published pursuant to 

Section 101 or because such miner, representative of miners 

or applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or 

has testified or is about to testify in any such 

proceedings, or because of the exercise by such miner, 

representative of miners or applicant for employment on 

behalf of himself or others of any statutory right afforded 

by this Act. 

2 After investigation of the miner's complaint, the 

Secretary is required to file a discrimination complaint with 

this Commission on behalf of the miner or applicant for 

employment if the Secretary determines that the Act was violated. 

If the Secretary determines that the Act was not violated, he is 

required to so inform the individual complainant and that person 

may then file his own complaint with the Commission under Section 

105(c) (3) of the Act. 

342 
circumstances. Circumstances which could 

warrant the extension of the time-limit would 

include a case where the miner within the 60-d.ay 

period brings the complaint to the attention of 

another agency or to his employer, or the miner 

fails to meet the time-limit because he is mislead 

as to or misunderstands his rights under the Act. 

(citation omitted). 

The Commissi on noted accordingly that timeliness questions must 

be resolved on a case-by-case basis, taking into a c count the 

unique circumstances of each situation. 

It is undisputed in this case that the alleged act of 

discrimination commenced on July 2, 1994, when Ikerd-Bandy did 

not hire Gay and that Gay did not file his complaint with the 

Secretary until December 13, 1994. His signed complaint is dated 

December 14, 1994. 

Gay testified at hearing as justification for the delay that 

he was unaware of his rights to file a complaint of 

discrimination under the Act until a coincidental meeting with 

Federal Mine Inspector Dash on December 12, 1994. Dash was 

purportedly investigating an unrelated matter at the subject mine 

in which rock from an explosives blast struck nearby homes. A 

conversation ensued with Gay in which Gay related his experience 

at the Whitaker mine operation (predecessor to Ikerd-Bandy) 

concerning safety reports he prepared regarding the absence of a 

guard for the cooling fan on his bulldozer. Dash purportedly 

advised Gay of his right to file a complaint with the Mine Safety 

and Health Administration (MSHA) and the next day Gay filed the 

complaint at issue with the Hazard, Kentucky, MSHA office. 

Gay's testimony on this issue is not disputed and, indeed, 

provides justification for the relatively brief delay in the 

filing of his complaint. Accordingly Gay's late filing may be 

excused. 

The Merits 

In his amended complaint filed at hearing the Secretary 

alleges in relevant part as follows: 

The Complainant, Ronnie Gay, was employed as a bull 

dozer operator by Whitaker Coal Company (MWhitaker") until 

June 30, 1995 and was a Mminer" within the meaning of 

Section 3(g) of the Act [30 u.s.c. 802(g)). 

Between June 15 and June 27, 1994 Ronnie Gay 

communicated safety complaints to Whitaker through its 

agent, Superintendent Carson Sizemore ("Sizemore"). 

343 
On or about June 20, 1994 Sizemore, as Whitaker's 

superintendent ordered Ronnie Gay, through Whitaker's 

foreman Raymond Walker, to stop communicating his safety 

complaints to Whitaker. 

Ronnie Gay continued to communicate safety complaints 

to Whitaker. 

on June 30, 1994 all Whitaker miners, including Ronnie 

Gay, were laid off by Whitaker. 

As of July 1, 1994 mine operations were purchased by 

respondent, Ikerd-Bandy co., Inc. 

Ikerd-Bandy Co., Inc . used the same equipment, same 

employees, and same methods of mining to extract coal from 

the same coal seam mined by Whitaker. Ikerd-Bandy Co., Inc. 

was a successor operator to Whitaker. 

Ikerd-Bandy Co., Inc. hired Sizemore as its 

superintendent as of ·July 1, 1994. 

On July 2-3, 1994 all Whitaker miners who had filed 

applications for work with Ikerd-Bandy were interviewed by 

Sizemore and another representative of Ikerd-Bandy Co., Inc. 

on July 1, 1994 Ronnie Gay filed an application for 

work with Ikerd-Bandy and on or about July 2, 1994 was 

interviewed by Sizemore and another agent of Ikerd-Bandy. 

Ronnie Gay was an applicant for employment within the 

meaning of the Act. 

Ronnie Gay was disc riminated against on or about 

July 2, 1994, when he was denied employment by IkerdBandy because, prior to this date, he had communicated 

safety complaints to Ikerd-Bandy's agent· Sizemore while 

both Ronnie Gay and Sizemore were employed by Ikerd-Bandy's 

predecessor, Whitaker. The safety complaints related to 

the condition of the bulldozer Ronnie Gay operated for 

Ikerd-Bandy's predecessor, Whitaker. 

The Secretary is seeking, inter alia, an order directing 

Ikerd-Bandy to pay Mdamages in an amount equal to full back pay, 

all employment benefits, all medical and hospital expenses and 

any and all other damages suffered by Ronnie Gay as a result of 

the discrimination from the date of the discrimination until the 

date Gay was reinstated to full employment status with IkerdBandy, i.e. until June 23, 1995, and a civil penalty of $6,000. " 

This Commission has long held that a miner or applicant for 

employment seeking to establish a prima f acie case of 

344 
discrimination under section 105(c) of the Act bears the burden 

of persuasion that he engaged in protected activity and that the 

adverse action complained of was motivated in any part by that 

activity. Secretary on behalf of Fasula v. Consolidation Coal 

co., 2 FMSHRC 2786, 2797-2800 (1980), rev'd on grounds, sub nom. 

Consolidation Coal Co. V. Marshall, 663 F.2d 1211 (3rd Cir. 

1981); and Secretary on behalf of Robinette v. United Castle Coal 

Co., 3 FMSHRC 803, 817-18 (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 

the protected activity. If an operator cannot rebut the prima 

facie case in this manner, it may nevertheless defend 

affirmatively by proving that it would have taken the adverse 

action in any event on the basis of the miner's unprotected 

activity alone. Fasula, 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); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 

1983) (specifically approving the Commission's Fasula-Robinette 

test). Cf. NLRB v. Transportation Management Corp., 462 U.S. 

393, 397-413 (1983) (approving nearly identical test under 

National Labor Relations Act). 

There is no dispute in this case that Gay filed numerous 

safety complaints during his four years while working for 

Whitaker, including as many as 200 pre-shift driver's reports 

citing equipment defects and the more recent pre-shift reports 

citing the absence of a guard over the radiator fan on his 

bulldozer (Joint Exhibit No. 1). It is not disputed that Gay 

continued to file such reports through his last day of work for 

Whitaker on June 30, 1994, when Whitaker closed down operations 

at the subject mine and released all of its workforce. 

Considering this undisputed evidence it is clear that Gay had in 

fact thereby engaged in protected activity. 

The second element of a prima facie case of discrimination 

is a showing that the adverse action (in this case the decision 

of Ikerd-Bandy not to hire Gay on or about July 2, 1994) was 

motivated in any part by the protected activity. 3 As this 

Commission noted in Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 

(1981), rev'd on other grounds sub nom. Donovan v. Phelps Dodge 

Corp., 709 F.2d 86 (D.C. Cir. 1983), u[d]irect evidence of 

motivation is rarely encountered; more typically, the only 

available evidence is indirect." The Commission considered in 

that case the following circumstantial indicia of discriminatory 

intent: knowledge of protected activity; hostility towards 

protected activity; coincidence of time between the protected 

3 Gay was subsequently hired by Ikerd-Bandy and began work 

on June 23, 1995. 

345 
activity and the adverse action; and disparate treatment. In 

examining these indicia the Commission noted that the operator's 

knowledge of the miner's protected activity is Mprobably the 

single most important aspect of the circumstantial case". 

In this regard it is undisputed that former Whitaker Mine 

Superintendent Carson Sizemore was Gay's supervisor while Gay 

worked at Whitaker as a bulldozer operator until Whitaker ceased 

operations on June 30, 1994. Gay testified that he began filing 

pre-shift driver's reports on the missing fan guard as early as 

April or May 1994, and continued through June 30, 1994. 

According to Whitaker foreman Raymond Walker, it was the practice 

for the pre-shift reports to be completed by the equipment 

operators before each shift to notify management of mechanical 

and/or safety defects. Walker would collect these reports from 

the operators on his shift and turn them over to Robert Baker in 

the mine office. According to Walker, Baker then made a list of 

the reported problems and provided that list to Sizemore. 

Gay testified that although Sizemore had never talked to him 

directly about these reports, Raymond Walker, who was his 

foreman, told him on June 7, 1994, that Sizemore did not want him 

to continue reporting the absent bulldozer fan guard. Gay 

testified that he told Walker that he would nevertheless continue 

to write the reports. 

In his testimony Walker confirmed that, following complaints 

to Sizemore about the missing fan guard on Gay's bulldozer, 

Sizemore told Walker to tell Gay not to report this problem any 

more. Walker confirmed that he reported Sizemore's response to 

Gay. This corroborated and credible testimony may reasonably be 

considered evidence not only of knowledge by Sizemore of Gay's 

protected activity but also of animus toward that activity. 

Sizemore's contrary testimony is also accordingly afforded but 

little weight. The Secretary alleges that Sizemore, as successor 

Ikerd-Bandy's new superintendent, thereafter retaliated against 

Gay when he presumably rejected Gay's July 1994, application for 

employment with Ikerd-Bandy. 

The record shows that on July 1, 1994, Whitaker sold 

substantially all of the assets of the subject mine to IkerdBandy, an unrelated business entity. According to William Rich, 

Ikerd-Bandy's president, two or three weeks prior to that date he 

told the Whitaker miners at meetings at the mine that he intended 

to hire from among the miners who were already working and did 

not intend to bring miners in from other jobs. While there is 

some disagreement over the precise words used by Rich, even one 

of the Secretary's own witnesses, Daryl Baker, agrees that Rich 

did not say he would hire all of Whitaker's employees. I, 

therefore, find Rich's testimony to be the most credible. 

Indeed, Rich projected that of Whitaker's work force of about 155 

346 
employees (110 of whom worked on the mine site) he planned on 

retaining only 65. Rich nevertheless invited all Whitaker miners 

to apply for jobs with Ikerd-Bandy and more than on~ hundred 

Whitaker miners, including Gay, did apply. 

As noted, Ikerd-Bandy hired Whitaker's former 

superintendent, Sizemore, on July 1, 1994 to help with the 

transition. Around July 2-3, 1994, Ikerd-Bandy's operations 

manager, Stephen Huey, and Sizemore interviewed every Whitaker 

miner who applied for work with Ikerd-Bandy, including Gay. 

Within a week of Whitaker's closing, Ikerd-Bandy commenced mining 

operations at the same site but with only about sixty-five 

miners, not including Gay. 

Indeed, while some circumstantial evidence, including 

knowledge of protected activity and timing, may suggest an 

illegal motivation for not hiring Gay in July 1994, I find that 

such evidence is neutralized by other credible evidence, the 

absence of credible evidence of disparate treatment, and, on 

balance that the Secretary has failed to sustain her burden of 

proving such unlawful motivation. 4 I have considered, in this 

regard, the long history of Gay and co-workers, Ourscle Stephens 

and Prentiss Baker, for filing safety complaints while employed 

by Whitaker and working for Sizemore but without evidence of 

previous retaliation. Indeed, several of these former Whitaker 

employees with long histories of filing safety complaints were 

offered jobs and hired by Ikerd-Bandy. I also find credible the 

testimony of Ikerd-Bandy's president, William Rich, as to the 

hiring procedures followed in July 1994, based upon unprotected 

rationale (Tr. 229-235), and that he planned to and did retain 

only 65 of the 155-man workforce maintained by his predecessor, 

and the evidence that Sizemore had no input as to Ronnie Gay 

(Tr . 2 0 4 , 2 1 7 ) . 

It is also noteworthy that Gay himself admitted that he has 

no knowledge as to how Ikerd-Bandy chose its employees and was 

only speculating that he was not hired because he had filed preshift reports. Finally, there is no credible evidence of 

disparate treatment of Gay based upon his protected activity and, 

jndeed, there is no credible evidence that anyone less qualified 

than Gay was hired by Ikerd-Bandy before Gay himself was hired. 

4 I have also considered the subsequent purported statement 

on January 3, 1995, of Huey that they would not hire Gay because 

he filed the instant proceedings. While this statement, if made, 

would clearly show animus toward Gay's protected activity of 

filing the instant discrimination case and could very well 

provide grounds for an independent cause of action, I do not, in 

any event, find this evidence to be sufficiently connected to the 

claim in this case to have any decisive bearing. 

34 7 
It should be noted that even assuming, arguendo, the 

secretary had established a prima facie case of discrimination, 

the above evidence would nevertheless establish an. affirmative 

defense that Ikerd-Bandy would not have hired Gay in July 1994, 

for unprotected reasons alone. 

Under the circumstances this discrimination proceeding must 

be dismissed. 

ORDER 

Discrimination Docket No. KENT 95-597-D is hereby dismissed. 

Distribution: 

~ fl LA \\ !j' Afi ' hJ AAA. ,_;L.J,, lt- \ J \ -~~- ~ 

Gary Melick \ 

Administrative Law Judge 

703-756-6261 

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

Labor, 2002 Richard Jones Road, suite B-201, Nashville, TN 37215 

(Certified Mail) 

William I. Althen, Smith, Heenan & Althen, Suite 400, 1110 

Vermont Ave . , N.W., Washington, D.c. 20005 25329-2549 

(Certified Mail) 

Donna c. Kelly, Esq., Smith, Heenan & Althen, One Valley Square, 

Suite 1380, P.O. Box 2549, Charleston, WV 25329-2549 (Certified 

Mail) 

\jf 

34 8 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMIN ISTRATIVE LAW JUDGES 

2 Sln'LINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 71996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 95-451 

A.C. No. 15-16508-03594 

v. 

J B D MINING COMPANY, INC., 

Respondent 

Docket No. KENT 95-671 

A.C. No. 15-16508-03600 

Appearances: 

Before: 

Docket No . KENT 95-728 

A.C. No. 15-16508-03601 

Mine: Harlan No. 1 

DECISION 

Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee; 

Tommy D. Frizzell, Conference and Litigation 

Representative, Mine Safety and Health 

Administration, Barbourville, Kentucky; 

Ronnie R. Russell, Conference and Litigation 

Representative, Mine Safety and Health 

Administration, Barbourville, Kentucky, for 

Petitioner; 

Jefferson B. Davis, President, J B D Min~ng, 

Pathfork, Kentucky, Pro Se, for Respondent. 

Judge Amchan 

Docket No. KENT 95-451 

On November 17, 1994, MSHA representative Billy Parrott 

conducted an inspection of Respondent's No. 1 Mine i n 

Harlan County, Kentucky. When he arrived at the mine's only 

working section, Parrott noticed that a center line, drawn on 

349 
the roof of a crosscut to guide the continuous mining machine, 

extended inby the last row of bolts (Tr. I: 14-16) . 1 

This line could not have been drawn without a miner walking 

under an unsupported portion of the roof (Tr. I: 23). Going into 

an area in which the roof is unsupported is very dangerous and 

could result in a miner being killed or seriously injured by a 

roof fall. Parrott issued an imminent danger order and Citation 

No. 4246900. The citation alleges a violation of MSHA regulation 

30 C.F.R. §75.202(b). This regulation generally forbids work or 

travel under unsupported roof. 

The citation alleges a significant and substantial (S&S) 

violation due to moderate negligence on the part of the 

Respondent. It also alleges that it was highly likely that an 

injury resulting in permanently disabling injuries might occur 

due to the violation. MSHA proposed a $2,000 penalty for the 

violation. 

Respondent does not deny that the violation occurred. 

It argues that the proposed penalty is much too high given 

the circumstances. When proposed penalties are contested, 

the Commission assesses civil penalties independently of the 

proposal made by MSHA. Section llO(i) of the Act requires 

that the Commission assess civil penalties after giving 

consideration to six factors. These are the size of the 

operator, the gravity of the violation, whether the operator 

was negligent, whether the operator demonstrated good faith 

in promptly abating the violation, the operator's history of 

previous violations and the effect of the penalty on the 

operator's ability to stay in business. 

Respondent is a small operator and it has not offered 

evidence that payment of the proposed penalties would affect 

its ability to stay in business. Respondent appears to have 

been cooperative in trying to prevent recurrences of the 

violation (Exh. G-2, Block 17). As to Respondent's prior 

history of violations, the Secretary's computerized list of 

1 1 will refer to the transcript for Docket No. KENT 95-451 

as Tr. I, the transcript for Docket No. KENT 95-671 as Tr. II and 

the transcript for Docket No. KENT 95-728 as Tr. III. 

350 
citations between November 17, 1992 through November 16, 1992 

(Exh G- 1), reveals no reason to assess either a higher or lower 

penalty. I t does indicate that Respondent pays few of the 

uncontested penalties proposed by MSHA. However, I do not regard 

this as a basis for increasing the penalty for the instant 

violations. The mechanism for addressing a failure to pay civil 

penalties is the institution of a collection proceeding in 

U.S. District Court pursuant to § llO(j) of the Act. 

The record in this case requires resolution of conflicting 

evidence regarding the negligence of the operator in violating 

the Act and the gravity of the violation. As to negligence, 

Charles Farmer, a repairman and sometime section foreman, admits 

he drew the center line in the area cited by Inspector Parrott 

(Tr. I: 66) . He stated that he thought he was still under 

supported roof because he did not realize that the person 

installing roof bolts had not finished the row of bolts closest 

to the face (Tr. I: 69, 72, also see Respondent's Answer of 

May 23, 1995). 

Farmer contends that there were two bolts on the right side 

of the unfinished row of bolts in the crosscut and that the red 

reflective marker was on the one closest to the middle of the 

crosscut (Tr. I: 67, 69; Exh. R-1) . Inspector Parrott contends 

that the marker, which indicates the last row of bolts, was 

attached to one of the bolts in the last completed row (Tr. I: 

38; Exhibit R-1). Moreover, he states that only one bolt had 

been installed inby that row (Exh. G-5) 2 • 

I credit the testimony of Inspector Parrott and find that 

the reflective marker was in the last full row of bolts and that 

there was only one bolt in front of this row . I do so because 

he is likely to have focused his attention much more on the 

location of the bolts and marker than did Farmer, who was also 

2Exhibit G-5 was drawn on acetate and used on an overhead 

projector at hearing. It was also copied on paper. The paper 

version of G-5 contains marks made by the witnesses which are not 

on the acetate version. 

351 
concerned with his production responsibilities. Moreover, 

Parrott committed his recollections to paper by making a sketch 

of the area within 10 or 15 minutes of his observations (Tr. I: 

39, 43). 

Since I conclude that Farmer went beyond the red reflective 

marker, I find his negligence to be somewhat greater than if the 

marker had been on the bolts closest to the face. Nevertheless, 

I accept Respondent's claim that the violation was due to 

inadvertence. 

The coal seam at this point is only 30 inches high. Miners 

are not able to stand up, and it is thus more likely that Farmer 

did not appreciate the fact that the row of bolts closest to the 

face had not been completed. On the other hand, it is incumbent 

upon Respondent to insure that all its employees are trained 

sufficiently so they recognize when a row of bolts has not been 

completely installed. 

I therefore conclude that this violation was due, in part, 

to a moderate degree of negligence on the part of Mr. Farmer in 

failing to determine whether the roof under which he traveled was 

supported. Mr. Farmer's negligence is imputed to Respondent for 

liability and penalty purposes. He generally was given supervisory responsibilities and there is nothing in the record which 

indicates that Respondent had taken reasonable steps before 

this incident to avoid such a violation, Nacco Mining Company, 

3 FMSHRC 848, 850 (April 1981). 

I also find Respondent was negligent for creating a situation in which a miner might not realize that the row of bolts 

closest to the face had not been completely installed. Nothing 

in the record indicates that there was anything unprecedented in 

the circumstances leading to the violation. The bol~s were 

apparently left out of the row closest to the face due to the 

presence of cap coal (coal left on the roof by the continuous 

miner) . The record does not indicate that Respondent had taken 

any precautions to insure that miners would not travel under a 

portion of the roof where bolts had not been installed for this 

reason . Thus, I conclude it was foreseeable that they might do 

so. 

352 
MSHA considered the instant violation to be highly likely 

to result in an accident, in part because the Harlan No. 1 Mine 

has 2 to 12 inches of draw rock in many places and hps experienced a number of roof falls (Tr. I: 54-61). Mr. Farmer, on the 

other hand, does not recall encountering any draw rock in the 

cited area (Tr. I: 70). 

Regardless of whether this area contained draw rock, I find 

that the violation was "S&S" as alleged by the Secretary. The 

Commission test for 11 S&S, 11 as set forth in Mathies Coal Co., 

supra, is 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. 

The Commission, in United States Steel Mining Co .. Inc., 

FMSHRC 1573, 1574 (July 1984), held that S&S determinations are 

not limited to conditions existing at the time of the citation, 

but rather should be made in the context of continued normal 

mining operations. Applying this test, I conclude the violation 

was as reasonably likely to occur in an area with draw rock as 

in one with no draw rock. Therefore, I conclude that a serious 

accident was reasonably likely, and thus the violation was 

properly characterized as "S&S." Further, given the considerations discussed herein, I conclude that a $500 civil penalty is 

appropriate for this violation. 

Docket No. KENT 95-671 

MSHA representative Roger Dingess inspected the Harlan No. 1 

mine on April 19, 1995 (Tr. II: 5-7). After inspecting the face 

area he walked outby four crosscuts along the belt line and found 

a fresh cigarette butt. He continued walking approximately 

300 feet outby to a power center where he found a second fresh 

cigarette butt (Tr. II: 6-8). 

35 3 
As a result of these discoveries, Dingess issued citation 

No. 4478078 to Respondent alleging a violation of 30 C.F.R. 

§75.1702. The cited regulation prohibits anyone f~om smoking 

underground or carrying any smoking materials underground. It 

also requires a mine operator to institute a program, . approved by 

the Secretary, to insure that nobody carries smoking materials 

underground. 

The citation alleges this standard was violated in that the 

operator did not comply with its smoking program (Exh. G-8, 

Block 8). MSHA characterizes the violation as S&S and due to the 

operator's moderate degree of negligence . A penalty of $2,500 

was proposed for this violation. 

The only evidence of fault on Respondent's part is Inspector 

Dingess' testimony that Charles Farmer, Respondent's foreman, was 

working only 100 feet inby from the location of the first cigarette butt found and therefore should have immediately detected 

the smoke fro~ this cigarette (Tr. II: 13-14). However, there is 

no direct evidence that Farmer knew anyone was smoking in the 

mine, and insufficient evidence to infer such a fact. 

The airflow along the belt line is of relatively low 

velocity, but it would have carried cigarette smoke outby and 

away from Farmer, rather than towards him (Tr. II: 17-18). 

Moreover, it is not certain that the cigarettes were smoked at 

the locations at which they were found (Tr. II: 18). 

There is also no evidence that Respondent's smoking program 

was defective or improperly implemented (Tr. II: 13,17,21). 

Negligence on the part of J B D management cannot be inferred 

simply from the fact that smoking materials were found 

underground. Further, the negligence of non-supervisory 

personnel in bringing smoking materials into the mine cannot be 

imputed to the Respondent for purposes of assessing a civil 

penalty, Southern Ohio Coal Co., 4 FMSHRC 1459 (August 1982). 

Despite the fact that Inspector Dingess has never detected 

methane at the No. 1 mine, I conclude that the instant violation 

is S&S. Congress would not have specifically prohibited the 

presence of such materials and provided for penalties for 

individual miners unless it considered that such materials are 

reasonably likely to result in serious injury. 

354 
Nevertheless, in spite of the high gravity of the violation, 

I assess only a $200 civil penalty. Paramount in this decision 

is the absence of evidence of Respondent's negligence and its 

good faith abatement of the violation. Respondent took steps to 

prevent a recurrence of the violation by discharging the miner 

who most likely brought the smoking materials into its mine 

(Tr. II: 22-24). 

Docket No. KENT 95-728 

On April 20, 1995, while inspecting the surface area of the 

Harlan No. 1 mine, Mr. Dingess observed Bobby Taylor get out of 

his haul truck and load coal into it with a front end loader 

{Tr . III: 5-7, 12). Inspector Dingess asked Taylor for 

documentation regarding his hazard training at this mine. While 

Taylor had training slips for other mines he had worked at, he 

did not have any for Respondent's mine {Tr. III: 7, 10). 

Taylor was. employed by Kincaid Coal Co . , a contractor 

operating on Respondent's property {Tr. III: 7, Answer). 

Nevertheless, since MSHA deems it the operator's responsibility 

to insure that all contractor employees have the requisite sitespecif ic training, Dingess issued Citation No. 4478079 to 

Respondent. 

The citation alleges an S&S violation of 30 C.F.R. 

§48.31(a). MSHA has proposed a $2,000 penalty. It contends that 

the violation was highly likely to result in a fatal injury 

(Citation, block 10) . This conclusion is predicated on the fact 

that the No. 1 mine is located on the side of a mountain and that 

coal is dumped into a chute that sits on a 200 foot embankment 

{Tr . I I I : 11-13 ) . 

The area in which Mr. Taylor was observed loading, his truck 

is located next to the bottom of the chute. Inspector Dingess 

believes miners in the area could be injured by objects coming 

through the windshield of their vehicles {Tr. III: 13). 

Respondent argues that this is simply a paper violation. 

Taylor has worked at this site intermittently for four years 

(Tr. III: 23). Moreover, he had received training from two 

other operators (Tr. III: 17). Finally, Respondent contends that 

it abated the violation in 15 minutes merely by reviewing 

information of which Taylor was already aware and completing the 

MSHA form 5000-23. 

355 
I conclude that the Secretary has not established an S&S 

violation with regard to this citation. Given Mr. Taylor's 

familiarity with the worksite and recent training by other 

operators it would be unlikely that his lack of training would 

result in an injury. For the same reasons, I deem the gravity 

of the violation to be relatively low. 

However, I find Respondent negligent in not complying with 

the training requirements for Mr. Taylor. In conjunction with 

the other penalty criteria in section llO(i), I conclude that a 

civil penalty of $200 is appropriate. 

ORPER 

Docket KENT 95-451: Citation No. 4246900 is affirmed and a 

$500 civil penalty is assessed. 

Docket KENT 95-671: Citation No. 4478078 is affirmed and a 

$200 civil penalty is assessed. 

Docket Kent 95-728: Citation No. 4478079 is affirmed and a 

$200 civil penalty is assessed. 

The total civil penalties of $900 shall be paid within 

thirty (30) days of this decision. 

Distribution: 

~A ~~~~. ~~uf J. Amchan 

Administrative Law Judge 

Thomas A. Grooms, Esq., Office of the Solicitor, 

U.S. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215-2862 (Certified Mail) 

Jefferson B. Davis, President, J B D Mining Co., Inc., 

5978 E. Hwy. 72, Pathfork, KY 40863 (Certified Mail) 

/lh 

35 6 
PEDERAL MINE SA!'BTY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LA~ JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 7 1996 

CONSOLIDATION COAL COMPANY, CONTEST PROCEEDING 

Contestant 

v. Docket No. WEVA 93-82-R 

Order No. 3109526; 11/09/92 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

. . 

Blacksville No. 1 Mine 

I.D. No. 46-01867 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 93-146 

A.C. No. 46-01867-03938 

Blacksville No. 1 Mine 

DECISION 

Appearances: Robert S. Wilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia on 

behalf of the Secretary of Labor; 

Before: 

David J. Hardy, Esq., Jackson and Kelly, 

Charleston, West Virginia on behalf of 

Consolidation coal Company. 

Judge Melick 

These consolidated cases are before me pursuant to Section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 

u.s.c. § 801 et seq., the -Act," to challenge Order No. 3109526 

issued by the Secretary of Labor on November 9, 1992, pursuant to 

Section 104(d) (1) of the Act. 1 The secretary maintains that 

1 Section 104(d) (1) of the Act provides as follows: 

If, upon any inspection of a coal or other mine, an 

authorized representative of the Secretary finds that 

there has been a violation of any mandatory health or 

357 
Consolidation Coal Company (Consol) violated the mandatory 

standard at 30 C.F.R. S 77.201-1, presumably on March 18 and 19, 

1992 and is seeking a civil penalty of $12,000 for the alleged 

violation. The general issue is whether Consol violated the 

cited standard as charged and, if so, what is the appropriate 

civil penalty to be assessed considering the criteria under 

Section llO(i) of the Act. 

The order at issue charges as follows: 

Methane tests were not being conducted in the 

6,ooo-ton capacity raw coal silo prior to or during a silo 

cleaning operation. The cleaning operation was being 

performed on March 18 and 19, 1992 by employees of Mole 

Master Services Corporation, an independent contractor, I.D. 

No. V2T. The coal stored in the silo had evidence of 

heating and this condition was observed by Consolidation 

Coal Company (Consol) mine management. Mole Master was 

contracted to clean the coal from inside of the silo. Prior 

to commencing the cleaning operation, Mole Master employees 

were advised of the conditions in the silo. An open flame 

kerosene-fired area heater was operated on top of the silo 

by the Mole Master employees during their work activities. 

The cleaning activities were conducted without examinations 

for methane having been made at any· time. The Mole Master 

Footnote 1 Continued 

safety standard, and if he also finds that, while the 

conditions created by such violation do not cause imminent 

danger, such violation is of such nature as could 

significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or 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 this Act. If, 

during the same inspection or any subsequent inspection of 

such mine within 90 days after the issuance of such 

citation, an authorized representative of the Secretary 

finds another violation of any mandatory health or safety 

standard and finds such violation to be also caused by an 

unwarrantable failure of such operator to so comply, he 

shall forthwith issue an order requiring the operator to 

cause all persons in the area affected by such violation, 

except those persons referred to in subsection(c) to be 

withdrawn from, and to be prohibited from entering, such 

area until an authorized representative of the Secretary 

determines that such violation has been abated. 

358 
employees were not qualified to perform methane examinations 

nor did the independent contractor have methane gas 

detection equipment. 

Failure to conduct the tests or ensure that the 

tests were being conducted placed the Mole Master employees 

in jeopardy. The failure of Consol to perform or require 

methane tests at the raw coal silo is consistent with 

Consol's written and stated policy not to provide safety and 

health assistance to independent contractors working on mine 

property. Failure to conduct the tests or ensure that the 

test were being conducted also placed Consol employees on or 

near the silo in jeopardy. This violation was determined 

from information gathered during the investigation of the 

explosion at the Production shaft of the Blacksville No. 1 

Mine that occurred on March 19, 1992, which resulted in four 

fatalities. 

The cited standard requires that "tests for methane in 

structures, enclosures, or other facilities, in which coal is 

handled or stored shall be conducted by a qualified person with a 

device approved by the Secretary at least once during each 

operating shift and immediately prior to any repair work in which 

welding or an open flame is used, or a spark may be produced." 

There is no dispute that the cited coal silo was within the 

category of "structures, enclosures or other facilities, in which 

coal is handled or stored" within the meaning of the cited 

standard. Consol maintains, however, that the standard is 

inapplicable because the shifts in question were not "operating 

shift[sJ" within the meaning of the standard nor was "repair work" 

being performed within the meaning of the standard. Even 

assuming, arguendo, that repair work was being performed, Consol 

argues that the repair work did not involve "welding or an open 

flame" or a situation where "a spark may be produced." Finally, 

Consol argues that, in any event, the order should be dismissed 

because the Secretary has not met his burden of proving that 

Consol did not, in fact, take methane readings in the subject 

silo as required . Since I agree that the Secretary has indeed 

failed to meet his burden of proving Consol did not take the 

required methane readings, it is not necessary to reach the other 

issues. 

The record shows that Mole Master Services Corporation (Mole 

Masters) contracted with Consol to clean the subject coal silo at 

the Blacksville No.1 Mine using a process not involving welding 

or an open flame nor from which a spark may be produced. 

According to Mole Masters Job Superintendent Phillip Proctor, 

Mole Masters moved all of their equipment to the top of the 

subject silo on March 17 and began working on the cleaning 

process that night. 

359 
Consol's preparation plant superintendent, B.C. Hall, had 

provided the required hazard training for the Mole Masters 

workers. Proctor advised Hall that his employees had no training in taking methane tests and that, if there were to be a methane 

problem, Consol would have to perform the testing. Proctor 

testified that none of his employees had methane detectors and 

that he did not see anyone conduct methane tests during the three 

days he was at the site. Proctor acknowledged, however, that he 

did not work with the cleaning crew on the silo roof. Mole 

Masters employees Randy Sturm and Steve Oldaker worked the day 

shift and three others worked the night shift. These were 12 

hour shifts. 

The silo has a capacity of 6,000 tons and Proctor was told 

at the beginning of the cleaning process that about 2,000 tons of 

coal then remained. By 10:15 a.m. on March 19 they had cleaned 

and removed approximately 1,500 tons so that accordingly only 

about 500 tons remained. Proctor noted that there were hot spots 

of coal in the silo with some of the coal clinging to the sides. 

He could see steam emanating from the coal as it dropped onto the 

belt below and was cooled with water. 

Consol employee James Carper testified that he was 

maintaining the · belts beneath the subject silo on March 18 and 

19, 1992. Although qualified to take methane tests he was not 

asked and did not perform any such tests during this time. 

Further, he did not see anyone taking methane readings at his 

work location. Carper noted, however, that his supervisor, 

Preparation Plant Superintendent, B.C. Hall, Mregularly checked 

on things" while carper was working there. Indeed, according to 

carper, Hall made regular checks at his worksite Mfairly often" 

and showed concern for Carper's well-being. 

John Morrison, the safety supervisor at the Blacksville 

No. l Mine during relevant times, testified that, although he was 

periodically in the vicinity of the subject silos, he personally 

did not perform any inspections of the cleaning work. Morrison 

did, however, take methan~ examinations beneath the silo around 

the feeder pockets near the belts. His methane tests on March 18 

and 19, 1992, at around 6:00 a.m. showed no methane. He did not 

test for methane inside the silo or from the top of the silo. 

Morrison testified that since the air flowed downward toward 

the basement of the silo 90 to 95 percent of the time it would, 

in any event, make no sense to test for methane at the top of the 

silo. You would be testing only fresh incoming air. He also 

noted that his primary concern was for methane near potential 

ignition sources at the electric motors on the belt line. He 

admitted, however, that hot coals in the silo could also become 

an ignition source. 

360 
Within this framework of largely undisputed evidence it may 

reasonably be inferred that none of the contractor (Mole Masters) 

employees were conducting methane tests in the subject silo on 

March 18 and March 19, 1992. On the other hand Safety Supervisor 

John Morrison was, according.to the undisputed evidence, 

performing methane tests below the silo in the basement area 

where, because of the direction of air flow, any methane produced 

in the silo would ordinarly be detected. 

Significantly, however, there is evidence that Preparation 

Plant Superintendent B.C. Hall was regularly present in the 

vicinity of the subject silo on March 18 and March 19 and that he 

could very well have been performing the requisite methane tests 

in the silo. 

It is also undisputed that doors on the sides of the silo 

permitted access for methane tests as well as openings on the 

roof. Indeed, Mole Masters superintendent Proctor stated that he 

specifically told Hall that any required methane tests would have 

to be made by Consol. Such tests can also be made in only 15 

seconds. Accordingly, even if the Mole Masters employees did not 

observe Hall taking methane readings on the roof, he could very 

well have taken them at other locations in the silo. It is noted 

that Hall died prior to the hearings in this case and that no 

statements had been obtained from him regarding this matter. 2 

In addition, the Secretary did not call any of the Mole 

Masters employees who were actually performing the cleaning work 

from the silo roof. These witnesses were possibly in the best 

position to have observed whether Consol had been taking methane 

readings within the silo. The recorded statement of one of these 

witnesses, Randy Sturm, was introduced at trial. Sturm maintains 

therein that he did not see anyone taking methane readings while 

he was working. While this statement in itself is insufficient 

to prove that Consol was not performing the requisite methane 

tests, the statement is, in any event, entitled to but little 

weight. The inability of Consol to have confronted and cross 

examined this witness, either in his statement or ~t hearing and 

to thereby test his recollection and the accuracy of his 

statement and explore possible motives, is reason alone for 

allocating such little weight. 

Under the circumstances I find that, while the Secretary has 

certainly raised suspicions, he has not sustained his burden of 

proving the violation as charged. Indeed, the Secretary in his 

post hearing brief acknowledges the difficulties of proving a 

2 According to the Secretary, Hall declined to provide a 

statement, citing his Fifth Amendment protections against self 

incrimination. No inferences can properly be drawn from Hall's 

exercise of this Constitutional privilege. 

361 
violation of the cited standard which requires no recordation of 

the required methane readings. He states *[i)t is impossible to 

conclusively prove a negative" and *(i]t would be virtually 

impossible for the Secretary to prove that at no time someone may 

have made a methane test". Without any regulatory requirement 

for the recordation of such tests it may indeed be a difficult 

violation to prove. This case has proven to be illustrative of 

that difficulty. 

ORDER 

Order No . 3109526 is hereby vacated, Contest Proceeding 

Docket No. WEVA 93-82-R is granted and Civil Penalty Proceeding 

Docket No. WEVA 93-146 is dismissed. 

Distribution: 

J 

; I 

'I 

\ \ 

/ 1 

~ I 

\ . 

~\\' 

' \. I : i 

Gary Melick _ Administrativ~ 

703-756-6261 

(\ 

i l 

I ' 

: : ' ; 1 

~ '. I i; \ NV\, -.- V\, \, \ 

Law Judge 

Robert M. Vukas, Esq., Consol, Inc., 1800 Washington Road, 

Pittsburgh, PA 15241 (Certified Mail) 

David J . Hardy, Esq . , Jackson and Kelly, P.O. Box 553, 

Charleston, WV 25322 (Certified Mail) 

Roberts. Wilson, Esq., Office of the Solicitor, U.S. Dept. of 

Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

/jf 

362 
PEDERAL KINE SAJ'ETY AND HEALTH REVI~" COMMISSION 

OFFICE OF ADNINISTRATIVE LAW JUOGES 

2 S(YLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VJRGJNIA 22041 

MAR 7 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . CIVIL PENALTY PROCEEDING 

Docket No. WEVA 93-146-A 

A.C. No. 46-01867-03938 

Blacksville No. 1 Mine 

: CONTEST PROCEEDING 

: Docket No. WEVA 93-81-R 

Citation No. 3109525; 11/09/92 

Blacksville No. 1 Mine 

DECISION 

Appearances: Roberts. Wilson, Esq., Office of the Solicitor, 

U.S. Dept. of Labor, Arlington, Virginia for the 

Secretary of Labor; 

Before: 

David J. Hardy, Esq., Jackson & Kelly, Charleston, 

West Virginia for the Consolidation Coal Company. 

Judge Melick 

These consolidated cases are before me pursuant to Section 

105(d) of the Federal Mine Sufety and Health Act of 1977, 

30 u.s.c. S 801 et seq., the MAct," to challenge Citation 

No. 3109525 issued by the Secretary of Labor to the Consolidation 

Coal Company (Consol) on November 9, 1992, for an alleged 

violation of Section 103(j) of the Act and to challenge the 

proposed civil penalty of $50,000. The general issue before me 

is whether Consol violated Section lOJ(j) of the Act and, if so, 

what is the appropriate civil penalty to be assessed considering 

the criteria under Section llO(i) of the Act. 

Section 103(j) provides in relevant part that •in the event 

of any accident occurring in any coal or other mine the operator 

shall • • • take appropriate measures to prevent the destruction 

of any evidence which would assist in investigating the cause or 

causes thereof." 

363 
The citation at bar charges as follows: 

The mine operator altered evidence which would assist in the 

accident investigation of the fatal methane e'xplosion that 

occurred on March 19, 1992 at Consolidation Coal Company's 

(Consol) Blacksville No. 1 Mine. A Consol vehicle assigned 

to Rod Baird, Environmental Engineer, was located in the 

blast area near the Production shaft and was damaged by the 

explosion. This vehicle contained items related to the work 

area that would assist the investigation. Specifically, a 

methane detector and a Consol closable metal clipboard, 

which Baird reportedly used to attach routine work notes and 

records, were in the subject vehicle. 

On March 21, 1992, Consol employees Walter Scheller and John 

Morrison entered Baird's vehicle and took Baird's assigned 

methane detector and clipboard without permission along with 

a cloth bag of other items. Scheller and Morrison had 

obtained MSHA's permission to retrieve only training records 

and Baird's personal effects from the vehicle. Upon being 

observed and stopped by MSHA accident investigation team 

membe r Joseph Vallina, Scheller returned the methane 

dete ctor ·to the vehicle. Scheller at the time of this 

violation· was Consolidation Coal Company's Corporate Counsel 

for MSHA and OSHA affairs. Morrison was the Blacksville 

No.l Mine Safety Supervisor. 

Upon subsequent written inquiry from MSHA, the operator 

through counsel represented that the cloth bag contained an 

empty metal clipboard, along with items of Baird's personal 

effe cts. 

As c larified at hearing the Secretary is not charging any 

violation herein with respect to the wmetal clipboard", wBaird's 

personal effects" or the wcloth bag of other items" noted on the 

face of the citation. The Secretary also made clear at hearing 

that the location of the noted methane detector within the Baird 

vehicle was not material to his investigation and that, 

accordingly, the movement of that methane detector was not, in 

itself, considered a violation in this case. 

Preliminarily I find that the allegations within the four 

corners of the citation do not state a violation of Section 

103{j) of the Act. The citation does not allege that Consol 

failed to wtake appropriate measures to prevent the destruction 

of any evidence which would assist in investigating the cause or 

causes" of the accident at issue. Rather it alleges only that 

the operator waltered evidence which would assist in the accident 

investigation". Accordingly the citation must be dismissed for 

failure to charge a violation of Section lOJ{j) of the Act . 

36 4 
However, even assuming, arguendo, that a violation of 

Section 103(j) was properly charged, the Secretary has not met 

his burden of proving that Consol failed to ~take appropriate 

measures to prevent the destruction" of the methane detector at 

issue in this case. While not specifically germane to the 

violation charged herein, I note that the Secretary has also not 

shown in this case that any material evidence was, in fact, ever 

altered or destroyed. Moreover, even assuming, arguendo, that a 

violation of Section 103(j) was properly charged, the credible 

evidence shows that the Consol officials charged in the citation 

conducted their search of the subject vehicle (during which the 

methane detector was found) only after receiving specific 

authorization to do so from the Secretary's agent, his chief 

on-site investigator, and only after being told in effect that 

the vehicle was no longer within the scope of the Secretary's 

investigation. Finally, the actions of Consol officials in 

removing the subject methane detector from the Baird vehicle may 

reasonably be construed, under all the circumstances, to have 

been an effort to preserve evidence rather than destroy it. 

In this regard, Ronald Wooten, Consol's Vice President for 

Safety, testified that he, along with company counsel, 

Walter Scheller; arrived at the Blacksville No. 1 Mine around 

8:00 a.m. on March 21, 1992, as part of the continuing 

investigation of an explosion at the mine on March 19, 1992. A 

request had been made from the widow of Rodney Baird to recover 

certain personal effects. Baird, who was killed in the 

explosion, had been employed as an environmental engineer for 

Consol. Wooten and Scheller were also continuing to search for 

certain training records requested by MSHA. 

Wooten and Scheller accordingly requested permission from 

the Secretary's chief on-site investigator, James Rutherford, 

to enter the company vehicle assigned to Baird to search for 

these items. According to Wooten, Rutherford responded Nthat's 

okay we're through with it" and indicated that he was "done with 

the vehicle". Based on this authorization to search and remove 

items from the Baird vehicle and upon Wooten's understanding that 

they would not otherwise have been permitted to do this, Wooten 

concluded that the vehicle had already been inventoried by MSHA. 

Walter Scheller, then in-house lawyer for Consol, had 

subsequently been promoted to superintendent at several Consol 

mines. He was at the Blacksville No.l Mine site on March 19, 

1992, shortly after the explosion and returned on March 21, 1992, 

between 8:00 and 9:00 a.m., along with Ron Wooten. ·Informed that 

certain training records and personal effects of the deceased 

Rodney Baird were in the subject vehicle, Scheller and Wooten 

sought permission from Rutherford to search the vehicle and 

retrieve those items. According to Scheller, Rutherford 

responded in reference to the requested search Nokay we're done 

with it" -- words to the effect that MSHA had completed its 

365 
investigation of the vehicle. Scheller also recalls that 

Rutherford then gave them permission to search the vehicle and 

presumably retrieve Baird's personal effects and any training 

records. 

Scheller testified that he, along with John Morrison, then 

proceeded to the Baird vehicle at around 10:00 that morning . There were several MSHA officials and numerous union and Consol 

officials in the area who they passed en route to the vehicle. 

It was covered with a blue tarpaulin held by bungee cords. They 

moved the tarpaulin and Scheller entered the driver's side. He 

recalled observing a metal clipboard, a small bible, a pop can , keys, a wallet and a methane detector with a charger. Scheller 

recalled telling Morrison when he found the methane detector to 

Mremember where we found it". Scheller maintains that he was 

still inside the vehicle when MSHA Inspector Joseph Vallina 

approached and asked what they were doing . Scheller testified 

that he told Vallina that Rutherford had given permission to 

search the vehicle and he had discove red a methane detector. 

Vallina purportedly told Scheller to return the detector to the 

vehicle and not to go ins ide the vehicle again . According to 

Scheller they then stopped their search, reattached the tarpaulin 

and returned to the mine office accompanied, at Vallina's 

direc t i on, by Vallina's colleague, MSHA Inspector Teaster. 

Scheller, Morrison and Teaster then returned to the mine 

off ice with the cloth bag containing items collected from the 

car. At the office Rutherford confirmed to Teaster that he had 

approved of the search. Scheller recalled asking Rutherford 

whether there was a problem and Rutherford responded kno". 

Scheller noted that the contents of the bag were emptied on a 

table in the supervisor's office in plain view of Rutherford and 

other personnel. He also noted that Inspector Vallina never 

requested to look in the bag. Scheller further testified that he 

had planned on giving the methane detector to Rutherford because 

he thought it could be important to the MSHA investigation.. He 

reaffirmed that he had not destroyed anything taken from the 

vehicle . He was charged in the instant citation on November 9, 

1992, more than seven months after this incident and, according 

to Scheller, only after MSHA investigators became hostile to 

Consol. 

John Morrison, then safety superv isor at the Blacksville No. 

1 Mine, was present when Scheller asked permission from 

Rutherford to search the Baird vehicle for personal effects and 

training records. Rutherford consented to this. Morrison 

recalled that it was around 9:30 or 10:00 in the morning in 

Mbroad daylight" when they arrived at the vehicle and MSHA 

inspector Joe Vallina and two other inspe ctors were standing in 

plain view on the bank above them. Scheller opened the driver's 

side door and found, among other things, Baird's wallet, a bible, 

a key ring and some wrestling club papers, along with a hand held 

366 
methanometer. Inspector Vallina then came down to the vehicle 

and asked what they were doing. Scheller responded that 

Rutherford had authorized the search to look for personal effects 

and hazard training records and volunteered MI found this as 

well" showing Vallina the methanometer. Morrison recalled that 

Scheller was then standing by the open door of the vehicle and, 

on Vallina•s request, returned the methanometer to where he found 

it. Upon returning to the mine off ice, they dumped the contents 

of the bag of items collected from the Baird vehicle on a table 

in the superintendent's office. The office door was open. 

MSHA Inspector Joseph Vallina corroborates this testimony in 

essential respects. He and Inspector Teaster were at the time 

only 25 feet from the Baird vehicle. He first noticed Scheller 

as he was exiting the vehicle. Scheller told Vallina that 

Rutherford had given them permission to retrieve training records 

from the car. When asked if he had anything else, Scheller 

reportedly responded that he had found a methane detector and 

asked if he should return it to the car. 

Within this framework of corroborated and credi ble evidence 

I conclude tha t, indeed, Scheller had not only been given 

specific permission by the Secretary's authorized agent to search 

the Baird vehicle and to remove certain articles but that he was 

also told that the vehicle, in essenc e, was no longer within the 

scope of the Secretary's investigation. I further find credible 

Scheller's explanation that he intended to hand the methane 

detector over t o the Secretary's chief on-site investigator, 

James Rutherford, as possible material evidence. Indeed, the 

most rational explanation under the circumstances is that 

Scheller intended to protect and preserve evidence rather than 

destroy it. 

If anyone were serious about secreting or destroying such 

evidence, it is highly unlikely that he would have done so in 

broad daylight in plain view of Federal investigators. Moreover, 

it is unlikely that he would have waited two days after the 

accident to search for such evidence . If, indeed, the r e was any 

intention to secrete or destroy evidence, one would also not 

expect the perpetrator to first ask permission from the chief 

Federal investigator to search the vehicle in which the evidenc e 

was located. A more likely scenario of a perpetrator ~ith such 

intent would be a surreptitious night search, without permission 

and well before investigators had several days opportunity to 

have ~earched the vehicle. It may also reasonably be inferred 

that, at that early stage of the investigation of a ·possible 

methane explosion and before the Secretary had charged any 

violations, the presence of a methane detector in the vehicle of 

a Consol official could be considered exculpatory. Consol 

officials would accordingly be motivated to preserve rather than 

destroy .such evidence. Under the circumstances I do not find 

that the Secretary has met his burden of proving that Consol 

367 
failed to take Mappropriate measures to prevent the destruction" 

of the methane detector or that, in fact, any material evidence 

was altered or destroyed. 

In reaching these conclusions I have not disregarded the 

testimony of MSHA investigator Rutherford. He was, indeed, the 

ranking MSHA investigator on the scene. He was then also in 

charge of all MSHA engineering departments including accident 

investigation and had a total of 31 years experience with Federal 

mining programs. Rutherford recalled that at the time of 

Scheller's request he was Mpretty busy" dealing with many 

investigative concerns. He recalled, however, that he did, in 

fact, give Scheller permission to remove training records from 

the subject vehicle which he, Rutherford, had previously 

requested from Consol and to retrieve the deceased's wallet and 

keys for his widow. Rutherford testified that he had no 

recollection of telling Scheller and Wooten that MSHA was 

Mthrough with the vehicle". He subsequently denied making such a 

statement. 

However, because Rutherford was admittedly Mpretty busy" at 

the time, dealing with many aspects of the serious multiple 

fatality investigation he was directing, I conclude that his 

recollection of the conversation may not have been as clear as 

could otherwise be expected. Indeed, I note in this regard that 

Rutherford even omitted from his earlier more contemporaneous 

notes a significant part of the conversation with Scheller and 

Wooten which he subsequently recalled. Moreover, I find it 

highly unlikely that such a skilled and experienced investigator 

would have permitted Consol employees to search and/or remove 

anything from a vehicle at the -scene of a major investigation unless he was confident that his investigators had already 

searched it. 

In addition, the testimony of Scheller and Wooten that 

Rutherford told them MSHA was Mthrough with the vehicle" is 

certainl y consistent with Rutherford's granting permission to 

search and remove certain articles from that vehicle. This is 

further corroborated by Morrison, who also testified that 

Rutherford consented to the search. I also note that Rutherford 

testified that, on the day before this incident, he had 

instructed his investigators to inventory all of the vehicles 

within the affected area. This would suggest that Rutherford may 

indeed have then believed that the Baird vehicle had already been 

inventoried. In any event, even Rutherford acknowledges that he 

consented to the search by Scheller of the Baird vehicle. 

368 
Under all the circumstances, I find that there has been no 

violation of Section 103(j) of the Act and Citation No. 3109525 

must accordingly be vacated. 1 

ORDER 

Citation No. 3109525 is hereby vacated, Contest Proceeding 

Docket No. WEVA 93-81-R is granted and Civil Penalty Proceeding 

Docket No. WEVA 93-146-A is dismissed. 

Gary Mel·c 

Administ ive 

703-756-6 61 

1 Since it has been found in this case that an authorized 

agent of the Secretary consented to Scheller's search of the 

Baird vehicle, there likewise could be no violation of the 

standard at 30 C.F.R. § 50.12 as suggested in the Secretary's 

post hearing motion to amend. It is noted that the Secretary had 

specifically declined, at hearing, to amend the citation to 

charge a violation of that standard. His subsequent belated 

motion filed with his post hearing brief to charge 

•alternatively" a violation of 30 C.F.R. § 50.12 was denied. 

That motion is accordingly now moot. 

369 
Distribution: 

David Hardy, Esq., Jackson and Kelly , P.O. Box 553, Charleston, 

WV 25322 (Certified Mail) 

Roberts. Wilson, Esq., Office of the Solicitor, U.S. Dept . of 

Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203 

(Certified Mail) 

/jf 

370 
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 . 

OPPORTUNITY TRUCKING, 

INCORPORATED, 

Respondent 

March s. 1996 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEVA 95-114 

A. C. No. 46-03408-03501 EHH 

Mine No. 1 

Docket No. WEVA 95-122 

A. C. No. 46-03141-03505 EHH 

Chesterfield Prep Plant 

ORDER OF DEFAULT 

Before: Judge Merlin 

These cases are before me pursuant to Commission order dated 

September 11, 1995. 

On September 1, 1995, the operator filed a motion to set 

aside default requesting relief from orders of default that were 

issued on August 2, 1995, in these cases. The operator stated 

that it thought it had filed answers with the Solicitor. The 

operator further asserted that it was not given ample opportunity 

to formally answer the charges or citations which led to the 

assessments. On September 11, 1995, the Commission remanded the 

case for a determination of whether relief from default was 

warranted. 

On September 18, 1995, an order was issued directing that 

within 30 days the operator provide copies of the answers it 

alleged it sent to the Solicitor and explain why it failed to 

respond to the orders of show cause. The Solicitor was also 

ordered within 30 days to review his files to determine whether 

answers were received from the operator. The file contains the 

return receipts showing that the September 18 order was received 

by operator's counsel on September 21, 1995, and by the Solicitor 

on September 20, 1995. 

371 
No response was received from either party. On January 16, 

1996, an order to show cause was issued directing the operator to 

provide the information requested in the September ~8 order and 

stating that if it failed to comply it would be held in default. 

The Solicitor again was directed to review his files to determine 

whether answers were filed and advise the undersigned. 

On January 23, 1996, the Solicitor filed its response to the 

Janu~ry 17 order. The Solicitor advises that he did respond to 

the September 18 order, but that due to clerical error it was 

incorrectly mailed to the Office of Administrative Law Judges for 

the Department of Labor. The Solicitor has attached a copy of 

his response to the September 18 order in which the Solicitor 

states that he has reviewed his files and that he did not receive 

answers from the operator. 

To date no respon se has been filed by the operator. Therefore, since the operator has failed to comply with the show cause 

order, it is in default. 

I n light of the foregoi ng, it is ORDERED that the operator 

be held in DEFAULT for the penalty amounts totaling $1,056 and 

that it PAY this sum immediately 

0~ ~~ ,· 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mai l) 

Javier I. Romanach, Esq., Office of the Solicitor, U. S . Department of Labor, 4015 Wilson Blvd . , Room 516, Arlington, VA 22203 

Charles Stanford West, Esq. , 155 E. 2nd Avenue, Williamson, WV 

25661 

/gl 

372 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR l 3 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

L & J ENERGY COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 93-15 

A. C . . No. 36-07270-03526 

Garmantown Mine 

DECISI ON ON REMAND 

Before: Judge Weisberger 

On February 24, 1994, I issued a decision in this civil 

penalty proceeding sustaining six of the seven violations 

charged. L & J Energy Company. Inc., 16 FMSHRC 424 (February 

1994 ) . L & J Energy Company, Inc. ( L & J) filed a petition for 

discretionary review and/or motion for remand for correction of 

the record, arguing, inter ~' that a stipulation which was 

recounted in my decision did not reflect the parties' agreement. 

The Secretary also moved for remand. The Commission denied the 

motion, but granted the petition for review, and remanded the 

matter to determine whether the stipulation in question correctly 

represented the agreement of the parties, and to reconsider the 

decision, if necessary. On remand, I took cognizance o f the 

parties' agreement, but declined to reconsider the initial 

decision. The Commission denied L & J's petition for review. 

Subsequently, L & J filed its appeal in the U.S. Court of 

Appeals for the District of Columbia Circuit . On June 6, 1995, 

the Court issued its decision remanding the case to the 

Commission "for a new determination based on the full r ecord." 

L & J Energy Co . . Inc . v . Secretary of Labor, 57 F.3d 1 086 

(D.C. Cir. 1995). The Court determined that my legal conclusion 

"disclaiming reliance on anything but expert testimony," rendered 

373 
"irrelevant" my statement that I reviewed the testimony of other 

witnesses. 57 F.3d, supra, at 1087, citing 16 FMSHRC at 441. 

The Court further stated that if, on remand, the Commission 

reaches the same conclusion, "it must simply explain·why the 

eyewitness [i.e., non-expert] testimony is discredited or 

disconnected in whole or in part." Id., at 1087. Finally, the 

Court held that the Commission should address each of the six 

statutory criteria for determining civil penalties "before 

assessing a fine. 11 Id., at 1088, citing Sellersburg Stone Co., 

5 FMSHRC 287, 292 - 93 (March 1983 ) ; 30 U.S.C. § 820 (i ) . On 

August 8, 1995, the Court issued its Mandate and Judgment in 

this matter, returning the case to the Commission's jurisdiction. 

On September 5, 1995, the Commission issued an order remanding 

this matter to me, " ... for a new determination based on the 

entire record." (L & J Energy Co .. Inc., 17 FMSHRC 1515, 1517 

(September 1955)). 

On November 30, 1995, my decision on remand was issued. 

L & J filed a petition for review which was denied by the 

Commission on January 11, 1996. The Secretary filed a motion for 

reconsideration of the denial, and the motion was granted in part 

on January 25, 1996. 

On February 13, 1996, the Commission issued a decision 

remanding this matter to me. The Commission set forth its 

conclusion as follows. 

We conclude that the judge has not adequately explained 

his reasons for discrediting or discounting the 

eyewitnesses' testimony. The "experience" and 

"expertise" of the experts upon whose testimony the 

judge relies do not explain why he discredited the 

eyewitnesses' testimony. Furcher, the judge's reliance 

on the discussion of testimony in his earlier decision, 

which the court of appeals found to be insufficient, 

does not fulfill the remand instructions set forth by 

the court and this Commission that he explain the basis 

for his treatment of testimony. In addition, if the 

judge is of the view of that the inspector's testimony 

regarding loose material on the highwall on February 6 

renders the eyewitness testimony not credible, he must 

explain why. The judge must also explain the 

significance, in terms of his evaluation of the 

374 
eyewitness testimony, of his reference to lay and 

expert witness' recognition of loose materials in 

photographs taken on February 6. 17 FMSHRC at. 2134. 

Finally, the judge must reach a determination on the 

record in light of his explanations. 

Why the eyewitnesses' testimony is discredited 

In essence, Respondent's witnesses testified that they did 

not observe any loose or hazardous materials on the highwall on 

February 5. However, MSHA and DER inspectors, who observed the 

site the next day testified that they observed numerous loose 

materials, cracks, mudslips, and material falling from the 

highwall. I observed their demeanor, and found their testimony 

credible. There is no evidence of any bias or interest on the 

part of these witnesses which would dilute the credibility of 

their eyewitness testimony. Also, their testimony regarding 

conditions they observed on February 6 finds corroboration in the 

recognition by .Scouazzzo, Todd, and Woods, of loose materials in 

photographs taken on February 6. For these reasons I accept the 

testimony of Petitioner's eyewitnesses regarding the conditions 

of the highwall on February 6. Given this conclusion, the 

testimony of Respondent's eyewitnesses must be considered to be 

lacking some credibility. Further, the eyewitness testimony of 

the conditions on February 5 can be considered trustworthy only 

if it is more likely than not that the conditions observed on 

February 6 occurred between when the site was observed by 

Respondent's witnesses, and when it was examined by the 

inspectors on February 6. 

The parties elicited opinion testimony from non-expert 

witnesses regarding the likelihood of a significant change in the 

condition of the highwall between February 5 and February 6. 

These witnesses discussed in subjective terms the weather 

conditions in the relevant time period and their impact upon the 

highwall. Since the lay witnesses did not base their opinions 

upon empirical data, I choose to not accord these opinions any 

weight. In contrast, the expert witnesses, Scovazzo and Wu, 

based their opinions upon detailed empirical weather data set 

forth in the testimony and records maintained by Krise. I thus 

accord more weight to the testimony of the experts that the 

conditions observed on February 6, could have been caused by the 

freeze-thaw effect. The weather data does not indicate that a 

375 
significant thaw had occurred overnight on February 5, or that 

there was any dramatic weather change in the 24 hour period 

preceeding February 6 (See, 15 FMSHRC 424 at 443). Indeed, 

Krise's data indicates that the high temperatures for 

February 3, 4 and 5 were 50 degrees, 56 degrees, and 58 degrees, 

respectively. The temperatures throughout these days were all 

above freezing. I thus accept Wu's opinion that, in essence, 

since there was not an extreme change between a freeze and a thaw 

in the two days preceeding February 6, it was not probable that 

the conditions depicted in photographs taken on February 6 had 

developed in one day. I thus find that it is more likely than 

not that the hazardous conditions observed on February 6 did not 

occur overnight, and that at least some of those conditions were 

in existence on February 5. I thus discredit the eyewitnesses' 

testimony regarding conditions observed on February 5. 

Accordingly, I reiterate my initial findings regarding the 

citations and orders at issue, and penalties to be imposed 

(16 FMSHRC, supra, 444-451) . 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Linda M. Henry, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480, Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W . , 

Washington, D.C. 20037 (Certified Mail) 

/ml 

376 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

March 14, 1996 

SAMUEL B. AND NANCY SANDERS, 

on behalf of JOSEPH MARTIN 

SANDERS, 

Complainants 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. WEST 95-538-RM 

Smokey Valley Common 

Operations of Round 

Mountain Gold 

Corporation 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On August 18, 1995, the Commission received a letter from 

Samuel and Nancy Sanders (hereafter referred to as the ~complainants"). This letter was assigned the above-captioned docket 

number. 

In their letter, the complainants state that they represent 

their deceased son who suffered fatal injuries at the Smokey 

Valley Common Operation. They request that the Commission review 

the decision of the Mine Safety and Health Administration (MSHA) 

to drop Citation Nos. 4140328, 4140327 and 4140322. They further 

seek verification of Citation No. 4140322 which they say was 

included in 4140321. Finally, they allege that a water truck of 

Christensen Boyles Corporation, their son's employer, should be 

cited for a mechanically unsafe transmission. 

There was no indication that complainants had sent a copy 

of their letter to the Solicitor of the Department of Labor 

who represents MSHA before the Commission. Therefore, on September 20, 1995 , an order was issued directing complainants to serve 

the Solicitor with a copy of the letter. The order also directed 

the Solicitor to file a response to the letter. On December 18, 

1995, complainants filed a copy of a certified mail return 

receipt showing that the Solicitor received a copy the letter. 

On January 16, 1996 , complainant, Mrs. Sanders, filed a 

letter with the Commission, enclosing several documents. These 

377 
documents included a letter dated December 20, 1995, from MSHA to 

complainant, explaining the status of the citations and complainant's reply. Also included in the enclosures were statistics 

compiled by complainant with respect to accidents in Nevada. 

The Solicitor failed to respond to the September 20 order. 

Accordingly, another order was issued on January 24, 1996, 

again directing the Solicitor to file a reply to complainants' 

August 18 letter. 

On February 26 , 1996 , the Solicitor submitted his response. 

The Solicitor advis e s that the citations referred to by c omplainants were vacated . According t o the Soli cito r, it was necessary 

to vacate citations because some of them were duplicative. The 

Solicitor asserts that the Secretary has authority to vacate 

citations. In additio n , the Solicito r states that the Se cretary 

has the responsibility to investiga te mine accidents to determine 

their cause and any health o r safety violations. Lastly, the 

Solicitor maintains that Congress has no t provided that relatives 

or survivors of victims have legal standing to c o ntest a citatio n 

or order issued- under the Mine Act. 

It is well established that the Commission as an administrative agency has o nly the jurisdiction which Congress gives it. 

Lyng v. Payne, 47 6 U. S. 92 6 , 937 (1986); Killip v. Office of 

Personnel Management , 991 F.2d 1564, 1569 {Fed Cir. 1993). The 

Commission has long recognized t hat it cannot exceed the limits 

of its authority as enacted by Congress. Kaiser Coal Co rp., 

10 FMSHRC 1165 , 1169, (September 1988). It appears from the 

materials in the file that t he complainants are concerned about 

citations which MSHA has issued and then vacated. Section 105(d) 

of the Act, 30 U.S.C. § 815(d) , sets forth how and under what 

circumstances Commission review may be obtained of actions taken 

by MSHA. An examination of section 105(d) discloses that there 

is no provision for a miner or a miner representative t o contest 

a citation. The Commission has held that there is no such right 

under the Act and stated that while it might be desirable for a 

miner or miner representative to have such a right, it is up to 

Congress to provide for it. UMWA v. Secretary of Labo r, 5 FMSHRC 

807 (May 1983). UMWA v. Secretary of Labor, 5 FMSHRC 1519, 1520 

{September 1983) . The Commission has also held that the Secretary has unreviewable discretion to vacate a citation and the 

Commission has no jurisdiction to review that determination. 

RBK Construction , Inc., 15 FMSHRC 20 99 , 2101 (October 1993). 

378 
The Commission does not have jurisdiction to consider 

complainants' other requests for relief. Section 105(d) does 

not give the Commission general oversight over MSHA' .s actions. 

The Commission has no authority with respect MSHA's internal 

practices and procedures. Wallace Brothers, 14 FMSHRC 586, 587 

(April 1992); cf. Mid-Continent Resources, 11 FMSHRC 1015 

(June 1989). Moreover, the Commission and the courts have 

recognized that the Secretary has wide discretion in enforcement. 

W-P Coal Company, 16 FMSHRC 1407, 1411 (July 1994); See, e.g., 

Bulk Transportation, 13 FMSHRC at 1360-61; Consolidation Coal, 

11 FMSHRC at 1443; Brock v. Cathedral Bluffs Shale Oil Co., 

796 F.2d 533, 538 (D.C. Cir. 1986). I cannot therefore, consider 

MSHA's alleged failure to cite a certain piece of equipment or 

its investigation of the accident. Kaiser Coal Company, supra. 

In light of the foregoing, it is ORDERED that this case be 

DISMISSED. 

= 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Mr. Samuel B. and Mrs. Nancy J. Sanders, HC 60, Box CH 210, Round 

Mountain, NV 89045 

Douglas N. White, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203 

/gl 

379 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

JIM WALTER RESOURCES, 

INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

March 20, 1996 

CONTEST PROCEEDINGS 

Docket No. SE 96-81-R 

Safeguard No. 4476609; 12/20/95 

Docket No. SE 96-108-R 

Safeguard No. 4476467; 1/19/96 

No. 4 Mine 

Mine ID 01-01247 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On January 16, 1996, the operator filed a notice of contest 

with respect to Safeguard No. 4476609. This matter was assigned 

Docket No. SE 96-81-R, captioned as above. On January 29, 1996, 

the Solicitor filed a motion to dismiss. 

On January 23, 1996, the operator filed a notice of contest 

with respect to Safeguard No. 4476467. This matter was assigned 

Docket No. SE 96-108-R, captioned as above. On February 12, 

1996, the Solicitor filed a motion to dismiss identical to the 

one previously filed in the first case . 

In his motions to dismiss, the Solicitor argues that the 

Commission does not have jurisdiction to consider a contest of a 

notice to provide safeguard. On March 1, 1996, the operator 

orally advised my law clerk that it would not file a response. 

Section 314(b) of the Federal Mine Safety and Health Act 

(hereafter referred to as the "Act"), 30 U.S.C. § 864(b), authorizes the Secretary to issue safeguards to minimize hazards with 

respect to the transportation of men and materials. Safeguards 

are issued on a mine to mine basis and have the effect of mandatory standards. Southern Ohio Coal Company, 7 FMSHRC 509, 512 

(April 1985). No penalty is assessed for the violation of a 

safeguard. When the requirements of a safeguard are subsequently 

violated, a citation is issued for which a penalty is assessed. 

Southern Ohio Coal Company, 14 FMSHRC 1, 13 (January 1992). 

380 
Section 105(d), 30 u.s.c. § 815(d), grants the Conunission 

jurisdiction to review citations, orders, and proposed penalty 

assessments of the Secretary. There is no statutory provision 

for review of safeguard notices and the Conunission has never 

reviewed one. Conunission decisions regarding safeguards deal 

only with situations where a subsequent citation has been issued. 

Southern Ohio Coal Company, 14 EMSHRC 1; Beth Energy Mines Inc., 

14 FMSHRC 17 (January 1992); Mettiki Coal Corp., 14 EMSHRC 29 

(January 1992); Rochester and Pittsburgh Coal Co., 14 EMSHRC 37 

(January 1992); Green River Coal Company, 14 EMSHRC 43 (January 

1992); Southern Ohio Coal Company, 10 EMSHRC 963 (August 1988) ; 

Southern Ohio Coal Company, 7 FMSHRC 509; Jim Walter Resources, 

Inc. , 7 EMSHRC 493 (April 1985); Conunission judges have refused 

to review a safeguard where there is no subsequent citation. 

Beckley Coal Mining Co . , 9 FMSHRC 1454 (August 1987); Colorado 

Westmoreland, Inc., 10 EMSHRC 1236 (September 1988). The Conunission , as a creature of Congress, is bound by the limits created 

by Congress and cannot expand them. Lyng v. Payne, 476 U.S. 926, 

937 (1986); Killip v. Office of Personnel Management, 991 F.2d 

1564, 1569 (Fed .Cir. 1 993) ; Kaiser Coal Corp., 10 FMSHRC 1165 , 

1169 (September 1988) . 

In light of the forego ing, it is ORDERED that these cases be 

DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Dist ribution: (Certified Mail) 

R. Stanley Mo rrow, Esq., Jim Walter Resources, Inc., P.O. Box 

133, Brookwo od, AL 35444 

William Lawson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 150 Chambers Bldg., Highpoint Office Center, 100 Centerview Drive, Birmingham, AL 35216 

Mr. James A. Blankenship, President, Local 2245, UMWA, 3500 

Culver Rd., Lot #6 , Tuscaloosa , AL 35401 

/ gl 

381 
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. 

GENERAL ROAD TRUCKING 

CORPORATION , 

Respondent 

March 20, 1996 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 95-102-M 

A. C. No. 19-00408-05518 

County Street Mine and Mill 

ORDER OF DEFAULT 

Before: Judge Merlin 

This case is now before me pursuant to Order of the 

Commission dated December 26, 1995. 

A review of the file shows that an order to show cause was 

issued to the operator on September 14, 1995. The file contains 

the return receipt showing that the operator received the order 

on September 18, 1995. Since the operator failed to respond to 

the show cause order, an order holding it in default was issued 

on November 20, 1995 . The file contains the return receipt 

showing that the operator received the default on November 22, 

1995. The Commission was unaware that the operator had received 

the default order, because the return receipt had not been 

associated with the file at the time the case was before the 

Commission . 

The operator in its letter to the Commission dated November 29, 1995, admits that it received the show cause ·order, but 

makes no mention of the default which it had received a week 

earlier. The operator also alleges it is not liable, because it 

does not run the facility in question. 

On January 25, 1996, an order to submit information and 

show cause was issued directing the operator to explain (1) the 

two month delay in its response to the September 14 show cause 

order, (2) why relief from default should be granted and (3) why 

its November 29 letter made no mention of the default order it 

had received. It was noted that in the past two years the 

operator had been a party in eight other cases before the Commission and that it had been defaulted in four. Docket Nos. YORK 

95-94, YORK 95-95, YORK 95-96 and YORK 95-99. 

382 
The file contains the return receipt showing that the 

operator received the January 25 order on January 31, 1996. To 

date no response has been received. Since the operator has 

failed to comply with the January 25 show cause order, it is in 

default. 

In light of the foregoing, it is ORDERED that the operator 

be held in DEFAULT for the penalty amount of $1,200 and that it 

PAY this sum immediately. 

---'\\~n ~ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Ralph R. Minichiello, Esq., Office of the Solicitor, U.S. Department of Labor, One Congress Street, 11th Floor, P.O. Box 8396, 

Boston, MA 02114 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 

22203 

E. Irene Anthony, Secretary, General Road Trucking Corporation, 

P. 0. Box 14277, E . Providence, RI 02914 

/gl 

383 

..... 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303- 844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CONTRACTORS SAND & GRAVEL 

SUPPLY, INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

· Petitioner 

v. 

MAR 2 5 1996 

ERIC SCHOONMAKER, owner & agent 

CONTRACTORS SAND & GRAVEL 

SUPPLY I INC. I 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No . WEST 93 - 462-M 

A.C . No. 04-04679- 05510 

Montague Plant 

CIVIL PENALTY PROCEEDING 

Docket No . WEST 94-409- M 

A.C. No. 04 - 04679 - 05514 A 

Montague Plant 

SUMMARY DECISION 

Bef ore: Judge cetti 

I 

Background 

Contractor' s Sand and Gravel , Incorporated, operates two 

small portable sand and gravel surf ace mining operations located 

near Yreka, Californ ia . The Scott River Plant has two employees 

and produces about 10 , 000 to 15,000 tons annual ly. The Montague 

Plant has two employees and produces about 10 , 000 to 15,000 tons 

annually. 

Eric Schoonmaker, the company's general manager, oversees 

both operations. Mr. Schoonmaker's responsibilities include , for 

example, managing the business, directing sales, marketing and 

customer relations, organizing production, coordinating equipment 

maintenance and repair, and making sure that the operations are 

safe. He is also the company ' s primary liaison with regulatin g 

384 
authorities such as MSHA. He asserts the plant has been in 

operation for many years and passed all MSHA's electrical inspections until the grounding citation in question was issued on 

March 10, 1993, by Inspector Ann (Johnson) Frederick. 

II 

Mr. Schoonmaker is the llO(c) agent charged in Docket No. 

WEST 94-409-M with the knowing violation of 30 C.F.R. § 56. 12 05 

at the Montague Plant. That safety regulation 30 C.F.R. 

§ 56.1205 reads as follows: 

All metal enclosing or encasing electrical 

circuits shall be grounded or provided with 

equivalent protection. This requirement does 

not apply to battery-operated equipment. 

The single citation at issue in both of the above-captioned 

dockets charges both the operator and the manager Eric Schoonmaker with the unwarrantable failure to comply with the abovequoted safety standard . The citation reads as follows: 

The frame of the crusher was being used as 

the grounding conductor. The ground solid 

strand copper wire ran from a rod (found +18 " 

below the surface near the van used as a 

control electrical installation) under the 

van through an underground pipe and connected 

directly to the frame of the portable crusher 

operation. Another jumper (solid copper 

wire) was found from the upper head pulley 

frame to the metal of the chute where the 

crushed rock transferred to the stacker 

conveyor belt. The wires from both motors 

found on these belts was so P123 MSHA 14/3 

stamped. No other visible grounds were found 

at the motors. Effective equipment ground 

conductors have not been installed as evidenced. The electrical grounding tests performed at the Montague plant and stated to on 

Sept. 15, 192 (1992) state that the grounding· 

had been found to conform to applicable code. 

Frame grounding has been forbidden for over 

fifteen years. This is an unwarrantable 

failure by operator to comply with the 

standards. 

Respondents do not dispute that the paths to ground for the 

stacker motor and crusher delivery motor passed through the frame 

of the crusher. Respondents do, however, dispute that such a 

grounding system violates the regulatory requirement of 30 C.F.R. 

§ 56.12025. 

385 
Respondents' counsel asserts that Petitioner has not even 

established a prima f acie case that the two motors in question 

were not grounded. Respondent contends that at the time the 

citations were issued, the two motors in question were effectively grounded. MSHA performed no test and has no other 

definitive evidence to show that the motors, at the time the 

citations were issued, were not effectively grounded or were, in 

any way, in violation of the plain, clear provisions of the cited 

safety standard. 

Both parties agree that there is no dispute as to any 

material fact and that the matter is ripe for summary decision on 

the single legal issue of whether Respondent's reliance on the 

crusher and stacker frames to serve as the path to ground for the 

electric current violates the provisions of 30 C.F.R. § 56.12025. 

The parties have cross-moved for summary decision on this single 

legal issue. 

Both parties agree that although the grounding issue is only 

one issue, among many, in the nine consolidated cases concerning 

33 citations, Citation No. 3911909 is the most significant of the 

citations and has generated, by far, the largest of the proposed 

penalties in these cases. Although the parties here seek summary 

decision on only one of many issues in the consolidated cases, 

the parties agree that the resolution of the grounding issue will 

allow the remaining citations in the consolidated cases to be 

resolved by amicable settlement without need for a hearing. 

STIPULATIONS 

In March 1996, the parties entered into the record the stipulation that the record for summary decision on the grounding 

issue consists of the following: 

1. Citation No. 3911909. 

2. All pleadings filed with the presiding judge, including 

but not limited to, motions, oppositions, and prehearing statements, to show the respective litigation positions of and representations made by the parties. 

3. Respondent's Request for Admissions and MSHA's Responses 

to Respondent's Request for Admissions; Respondent's Interrogatories and MSHA's Responses to Respondent's Interrogatories, 

Plaintiff's (Petitioner's) Interrogatories and Respondent's 

Responses to Petitioner's Interrogatories. 

4. The affidavit of Eric Schoonmaker. 

5. The declarations of Paul Price and Gordon Vincent. 

386 
6. The deposition transcripts of Paul Price, Ann (Johnson) 

Frederick, Eric Schoonmaker and Frank Casci. 

7. Article 250 of the 1993 National Electricai Code (NEC), 

to show the NEC's definitions of "grounded" and "grounded, effectively." 

B. Article 250 of the 1993 National Electrical Code (NEC), 

to show the electrical grounding requirements of the NEC. 

9. Order No. 3913901, issued subsequent to Citation No. 

3913895 and under contest in Docket No. WEST 93-141, to show that 

Order No. 3913901 was terminated. 

10. Photographs A-1, A-2, A-3 and A-4 to show the equipment 

used at the Montague Plant. 

11. August 3, 1995, letter from Paul Price to Mark Ode, to 

show that MSHA requested an interpretation of Article 250 of the 

1993 National Electrical Code from the National Fire Protection 

Association. 

12. August 14, 1995, letter from Mark Ode to Paul Price, to 

show the National Fire Protection Association's unofficial interpretation of Article 250 of the 1993 National Electrical Code as 

it applies to the hypothetical scenario set out in Mr. Price's 

August 3, 1995, letter. 

The February 29 , 1996, letter transmitting the above stipulations also states "the stipulated record contains a few items 

that have not been previously cited by the parties and attached 

to prior motions or pleadings. These items are being included to 

make the record complete for appeal purposes." 

Both parties in their pleadings and arguments have stated 

their respective cases very well. Upon careful review of the 

record, I am persuaded that the undisputed material facts in this 

case do not establish a violation of 30 C.F.R. § 56.12025. 

The cited standard 30 C.F.R. § 56.12025 plainly and clearly 

requires that "metal enclosing ... electrical circuits'shall be 

grounded." The regulation is specific and not broadly worded. 

30 C.F.R. § 56.12025 is a "performance standard. " It does not 

specify or require that the operator achieve an effective ground 

in a specific manner. 

I find that Respondent complied with the requirement of the 

cited standard by intentionally grounding the stacker conveyor 

and crusher discharge conveyor motors by using the stacker and 

crusher frames as conductors in carrying ground fault current to 

earth. Part 56 which sets forth the mandatory safety standards 

for surface nonmetal mines, such as we have here, clearly pro387 
vides that "electrical grounding means to connect with the ground 

to make earth part of the circuit." 30 C.F.R. § 56.2. The 

company's resistivity tests conducted on September .15, 1992, 

pursuant to 30 C.F.R. § 56.12028 indicated that there was an 

effective path to ground from both of the motors. Thus, the 

motors in question were connected with the ground to make the 

earth part of the circuit. There is no contrary evidence. 

The secretary should not be permitted through interpretation 

to expand the regulation beyond its plain meaning. The Secretary's purported longtime interpretation of the regulation to 

prohibit per se frame grounding constitutes an impermissible 

expansion of the plain meaning of the standard. It constitutes 

an impermissible avoidance of the rulemaking requirements of 

section 101 of the Mine Act. since the Secretary purports to 

impose additional requirements and prohibitions without proper 

rulemaking, it lacks the "force and effect of law". WesternFuels Utah, Inc., 11 FMSHRC 278, 286-87 (March, 1989); see also 

Asarco Inc., 14 FMSHRC 829, 835 (1992). 

If the Secretary believes frame grounding should be prohibited, the Secretary should initiate appropriate rulemaking to 

achieve its goal rather than attempting to do so by its interpretation of the regulation beyond its plain meaning. (See Mathies 

Coal Company, 5 FMSHRC 300, 303 (March 1983). 

With respect to the application of the reasonable, prudent 

person test, I find that a reasonable, prudent person familiar 

with the mining industry would have recognized that the two 

motors, which were connected to earth through a series of metal 

frame and wire connections, were "grounded" and were, thus, in 

compliance with the requirement of the cited regulation. I base 

this on the definition of grounding at 30 C.F.R. § 56.2 which 

specifically states that "electrical grounding means to connect 

to the ground to make the earth part of the circuit". 30 C.F.R. 

§ 56.2. 

In this connection, I also find it noteworthy that in the 

National Electrical Code, "grounded" is d~fined as ''connected to 

earth or to some conducting body that serves in place of earth.'' 

NEC, Article 100 (definitions) (1993) and that "grounded effectively" is defined as "Intentionally connected to earth through a 

ground connection or connections of sufficiently low impedance 

and having sufficient current carrying capacity to prevent the 

buildup of voltages that may result in undue hazards to connected 

equipment or to persons. NEC, Article 100 (definitions) (1993). 

Also noteworthy in the application of the reasonable prudent 

person test is the fact the Secretary's purportedly longstanding 

interpretation has never been published in MSHA's Program Policy 

Manual and furthermore, MSHA's purported interpretation is contrary to two unappealed, well-reasoned decisions of two Commis388 
sion Judges who I believe to be reasonable, prudent persons 

familiar with the mining industry. See Mulzer crush stone 

Company, 3 FMSHRC 1238 (May 1981) in which Judge Laurenson 

rejected MSHA's contention that the frame was not a source of 

grounding. See also McCormick Sand Corporation, 2 FMSHRC 21, 24 

in which Judge Michels rejected MSHA's contentions and held that 

30 C.F.R. S 56.12025 "fairly read, requires only a "ground" or 

its equivalent. It does not mandate a particular ground such as 

that mentioned in the citation ... " I have not been able to find 

any Commission authority contrary to these two unappealed Administrative Law Judge decisions. 

I conclude, primarily on the basis of the plain, clear language of the cited regulation, that Citation No. 3911909 should 

be vacated. I find nothing in ·the transcript and declaration of 

Paul Price, the transcript of Ann (Johnson) Frederick and the 

other material and arguments on which MSHA relies that persuades 

me to a contrary conclusion. Such testimony and arguments would 

be more appropriate in a section 101 rulemaking proceeding. 

ORDER 

Docket No. WEST 93-462-M 

Citation No. 3911909 is VACATED and its related $7,000.00 

proposed penalty is set aside. I retain jurisdiction of the two 

remaining citations in the docket. 

Docket No. WEST 94-409-M 

Citation No. 3911909 is VACATED; its related $6,000.00 

proposed penalty is set aside. Docket No. WEST 94-409-M is 

DISMISSED. 

Distribution: 

Aug t F. Cetti 

Administrative Law Judge 

Steven R. Desmith, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 

94105 

C. Gregory Ruffennach, Esq., RUFFENNACH LAW OFFICES, 1675 Broadway, Suite 1800, Denver, co 80202 

\sh 

389 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

JAR 2 _5_ 199-6. 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 94-369-M 

A.C. No. 35-02479-05501 

v. Docket No. WEST 94-379-M 

A.C. No. 35-02479-05502 

TIDE CREEK ROCK, INC., 

Respondent 

Docket No. WEST 94 -492-M 

A.C. No. 35-02479 - 05503 

Appearances: 

Before: 

Docket No. WEST 94-493-M 

A.C. No. 35-02479-05504 

Docket No. WEST 94-638-M 

A.C. No. 35-02479-05505 

Docket No. WEST 95-48-M 

A.C. No. 35-02479-05506 

Docket No. WEST 95-275-M 

A.C. No. 35-02479-05507 

Tide Creek Rock 

DECISION 

Matthew L. Vadnal, Esq., Office of the Solicitor, 

U.S. Department of Labor, Seattle, Washington, 

and Paul A. Belanger, Mine Safety and Health 

Administrati.on, U.S. Department of Labor, 

Vacaville, California, for Petitioner; 

Agnes M. Peterson, Esq., Deer Island, Oregon, 

for Respondent. 

Judge Manning 

These cases are before me on petitions for assessment of 

civil penalties filed by the Secretary of Labor, acting through 

the Mine Safety and Health Administration ("MSHA"), against Tide 

Creek Rock, Inc. ("Tide creek"), pursuant to sections 105 and 110 

of the Federal Mine Safety and Health Act of 1977 , 30 u.s.c. 

§§ 815 and 820 (the "Mine Act"). The petitions allege 33 violations of the Secretary's safety standards. For the reasons set 

forth below, I affirm 21 citations and 2 section 104(b) withdrawal orders, and vacate 12 citations and 1 section 104(b) 

withdrawal order. I assess penalties in the amount of $640.00. 

390 
A hearing was held in these cases in Portland, Oregon. The 

parties presented testimony and documentary evidence, and filed 

post-hearing briefs. 

I. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Tide Creek Rock Mine, owned and operated by Tide Creek, 

is a very small crushed stone operation in Columbia County, 

Oregon. The mine consists of a pit and crusher. The mine 

recorded about 3,000 annual hours worked and it employs three 

people. It has a history of no citations between January 1990 

and January 1994. on January 20 and 21, 1994, MSHA field office 

supervisor John Widows inspected the mine following a telephone 

complaint about the mine received at MSHA's headquarters on 

January 19. (Ex. R-1). 

General Defenses 

Tide Creek argues that all or most of the citations should 

be vacated for five reasons, as discussed herein. First, it 

maintains that the Secretary failed to show that the citations 

were issued by a person who is authorized to do so under the Mine 

Act. Tide Cree~ contends that Mr. Widows was not "qualified by 

practical experience in mining or by experience as a practical 

mining engineer or by education." (T.C. Br. at 3, quoting 30 

u.s.c. § 954). Further, Tide Creek argues that Mr. Widows does 

not have five years of practical mining experience and that in 

assigning him to inspect the mine, the Secretary failed to give 

due consideration to his lack of "previous experience in the. 

particular type of mining operation" at the Tide Creek Rock Mine. 

Id. It contends that these qualification requirements are jurisdictional. (T.C. Answer Br. at 1-2). The Secretary argues that 

Mr. Widows is an authorized representative of the Secretary and 

is qualified as a result of his experience, training, and 

education. 

Although Mr. Widows' career history is unusual, I find that 

he was duly qualified to inspect Tide Creek's mine and to issue 

citations. He has been employed by MSHA for 17 years, first as a 

health and safety specialist and then as a field office supervisor. (Tr. 11-12). Although he has never been an MSHA inspector, he is a duly authorized representative of the Secretary, as 

that term is used in sections 103(a) and 104(a) of the Mine Act. 

(30 u.s.c. §§ 813(a) and 814(a); Tr. 13, 142). He has a degree 

in mining engineering from the Colorado School of Mines, but he 

has never worked at a mine except during the summer while in 

college. (Tr. 13). He was also trained at MSHA's Mine Safety 

and Health Academy. I find that Mr. Widows does not have five 

years of practical mining experience. Section 505 provides, 

however, that the Secretary shall appoint, "to the maximum extent 

feasible," inspectors with five years of practical mining experience. 30 u.s.c. § 954. Thus, that provision is not jurisdic391 
tional. For the same reason, the fact that he never worked at a 

rock or g:avel pit does not disqualify him from inspecting Tide 

Creek's mine. I find that he meets the qualifications of section 

505 as a result of his education, training, and experience at 

MSHA. 

Second, Tide Creek argues that any citations that involve 

the same safety standard and the same equipment or area of the 

mine should be combined into a single citation. Tide Creek 

points to MSHA's Program Policy Manual which includes such a 

directive. {PPM at Vol. I, Sec. 104, p. 15). The citations that 

Tide Creek believes should be combined include seven guarding 

citations and four handrail citations. The Secretary maintains 

that the PPM is not binding on MSHA but merely provides guidance 

to inspectors. He also contends that the crusher was a large 

piece of equipment made up of many separate components and that 

each of the conditions cited presented a separate hazard. 

Section llO{a) of the Mine Act provides that "each occurrence of a violation of a mandatory health or safety standard may 

constitute a separate offense." 30 u.s.c. § 820{a). The Secretary did not a~use his discretion in issui ng multiple citations 

alleging violat'ions of the same or similar safety standards. 

Each citation addresses a discrete area of the crusher. For 

example, with respect to the guarding citations, no two citations 

require a guard at the same location. Each citation required a 

separate abatement effort by Tide Creek to terminate the citation. See, Port Costa Materials, Inc., 16 FMSHRC 1 516, 1519-20 

{July 1994) (ALJ) • 

Although the Secretary's Program Policy manual is evidence 

of MSHA's policies and practices, it is not b i nding on the Secretary. Brock v. Cathedral Bluffs Shale Oil Co., 796 F. 2d 533, 

536-38 {D.C. Ci r 1986); Coal Employment Project v. Dole, 889 F.2d 

1127 , 1130 n. 5 (D.C. Cir 1989). In addi tion, the Secretary 

states that the "multiple violations" in these cases should not 

be treated as one v i olation because they were not related to the 

same piece of equipment or the same area of the mine. Thus, the 

guideline in the Program Policy Manual was not violated. 

Third, Tide Creek argues that the Secretary is equitably 

estopped from enforcing the citations in this proceeding. It 

states that the Tide Creek Rock Mine has not changed in any 

significant way since 1979. It argues that the Secretary should 

be estopped from enforcing these citations because the cited 

conditions were observed by MSHA inspectors on previous inspections and no citations were issued. Tide Creek wrote a letter to 

MSHA after it received two citations in 1979 stating that the 

inspector was asked to point out any additional "areas of def iciency." (Ex. R-7). The letter went on to state that since he 

could find no other violations, Tide Creek "has complied with all 

..• requirements and there is nothing else to be done." Id. 

39 2 
-.... _ ..... _. 

The Commission has long held that equitab~e esto~9,.Q~S ~ not apply to the Secretary in Mine Act pr-Oc""eedingS:-___ King KnOb 

coa-l-Co., 3 F'MSHRC i417, !421 22 (JUne 1'9'8'1.j ·~ The Commission set 

forth the reasoning behind its conclusion in King Knob, which I \ 

will not repeat here. In some cases, courts have estopped the \ 

government where it has engaged in "affirmative misconduct . " 

See, e.g., United States v. Ruby, 588 F.2d 697, 702-04 (9th Cir. 

1978), cert. denied, 422 U.S. 917 (1979). I find that MSHA did · 

not engage in "affirmative misconduct" in this case and I hold 

that the citations should not be vacated on that basis. _ _..,,.,.. ....... 

Fourth, Tide Creek maintains that because many of the conditions cited by Mr. Widows have been in existence since 1979, 

this action is barred by the statute of limitations and by the 

equitable doctrine of latches. The Mine Act does not include a 

s tatute of limitations. As stated by counsel for the Secretary, 

the only limitation is that citations be issued with "reasonable 

promptness." 30 u.s.c. § 814(a). · If an inspector believes that 

a safety standard had been violated, he must issue a citation 

with reasonable promptness. There has been no showing that 

Mr. Widows unreasonably delayed issuing any citation after he 

determined that a violation existed. For the same reason, there 

has been no indication that MSHA knew of violations of safety 

standards at the mine but slept on its duty to issue citations. 

Finally, Tide Creek argues that it was denied due process 

because the inspection was triggered by a telephone complaint 

that contained false information. In particular, Tide Creek 

contends that as "an American citizen entitled to due process in 

some regard, we firmly believe that to allow the use of a secret 

'Code-a-phone' system to allow complaints that are false about 

the department and about an operator without any recourse being 

allowed amounts to an abuse of process that has been set up to 

protect miners working in mines." (T.C. Br. 34). 

Congress determined that miners should "play an active part 

in the enforcement of the Act" and that "they must be protected 

against any possible discrimination which they might suffer as a 

result of their participation." s. Rep. No. 181, 95th Cong., 1st 

Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2d Sess., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 623 

(1978). MSHA's system for anonymous telephone complaints furthers that objective. In addition, section 103(a) of the Mine 

Act expressly grants authorized representatives of the Secretary 

a right to enter all mines for ~he purpose of performing i nspections under the Act. The Secretary possessed the authority to 

conduct the inspection at issue even if the inspection ensued 

from a complaint that contained false information. See, Aloe 

Coal Co., 15 FMSHRC 4, 8 (January 1993). "An inspector has broad 

discretion to gain entry and to inspect a mine." Id. Accordingly, Tide Creek did not suffer an abuse of process. 

393 
General Background and Discussion 

The Tide Creek Rock Mine consists of three work areas: (1) 

the crusher including auxiliary facilities; (2) the stockpile; 

and (3) the extraction area in the pit. Usually, only three employees work at the mine, but on occasion there are four employees. John A. Peterson is the only person who operates the 

crusher and he remains at the crusher's control tower at all 

times when the crusher is operating. One employee loads rock at 

the extraction area into a truck, drives the truck to the upper 

hopper of the crusher, and dumps the rock into the hopper. On 

occasion another employee also performs this task. The third 

employee loads crushed rock into a truck at the lower hopper 

(bunker silo) and dumps the rock at the stockpile. At the time 

of the inspection, the crusher was not operating. _ , In its brief, Tide Creek asserts that many of the conditions 

described in the citations did not create a hazard to Mr. Peterson or to the other employees, for the reasons discussed in more 

detail below. ·It argues that the citations should be vacated 

because the conditions did not create a hazard to miners. 

The Commission and the courts have uniformly held that the - ···Mine Act is a strict liability statute. See, e.g. Asarco v. 

FMSHRC, 868 F.2d 1195 (10th Cir. 1989). "[W]hen a violation of a 

mandatory safety standard occurs in a mine, the operator is automatically assessed a civil penalty." Id. at 1197. In addition, 

the Secretary is not required to prove that a violation creates a 

safety hazard, unless the safety standard so provides. 

The [Mine Act] imposes no general requirement 

that a violation of MSHA regulations be found 

to create a safety hazard in order for a 

valid citation to issue. 30 u.s.c. § 814(a). 

If conditions existed which violated the 

regulations, citations [are] proper. 

Allied Products Co., 666 F.2d 890, 892-93 (5th cir. 1982} 

(footnote omitted). The degree of the hazard is taken into 

consideration in assessing a civil penalty under section llO(i). 

30 u.s.c. § 820(i). 

In assessing civil penalties, I have taken into consideration the fact that Tide Creek is a very small family-run business 

and that, except as noted below, it promptly abated the 33 citations with its limited resources. Except as noted below, I find 

that Tide Creek's negligence was low with respect to the citations. The conditions cited by Mr. Widows existed for a considerable length of time without receiving citations by MSHA. 

Mr. Peterson was attempting to run a safe operation and reasonably believed that he was in compliance with the Secretary's 

safety standards. 

394 
Specific Citations 

Tide Creek also argues that the Secretary failed to prove 

the violation alleged in each citation. In order. to discuss the 

allegations in a systematic way, I have grouped the citations by 

subject area rather than by docket number. 

A. ELECTRICAL CITATIONS 

1. Citation No. 4339822 alleges that a danger sign was not 

posted at the electrical shed to warn persons of electrical hazards. The safety standard, 30 c.F.R. S 56.12021, provides that 

"suitable danger signs shall be posted at all major electrical 

installations." Mr. Widows testified that the cited shed contained the majority of the mine's electrical components and that 

it did not have a sign warning people that electrical equipment 

was in the shed. (Tr. 92-95, 181-84). At the time of the inspection the power was off. Id. Mr. Peterson testified that 

there was no sign, but there was no person to warn of the danger 

because he is the only person who goes into the shed. 

(Tr. 335-36). 

Tide Creek argues that the citation should be vacated 

because the citation did not include a reference to the standard 

allegedly violated. The Secretary admits that the citation did 

not set forth what safety standard was violated, but contends 

that Tide Creek was not prejudiced by the omission. It maintains 

that Tide Creek knew the material facts that led to the issuance 

of the citation and that its counsel cross-examined Mr. Widows 

about the violation. It moves to amend the citation to conform 

to the evidence. 

I find that this omission is a technical defect and the 

citation should not be vacated on this basis. In making this 

finding I rely on the fact that "Exhibit A" to the Secretary's 

petition for assessment of civil penalty in WEST 94-369-M, which 

lists the citations and penalties, alleges a violation of section 

56.12021 with respect to Citation No. 4339822. Thus, Tide creek 

had notice of the standard allegedly violated long before the 

hearing in this matter. 

Based on the evidence, I find that the Secretary established 

a violation. There is no dispute that the shed was a "major 

electrical installation" and it did not have a danger sign. As 

stated above, the fact that the condition created little or no 

hazard to miners is not a defense to the violation. I find that 

the violation was not significant and substantial ("S&S") and 

that the gravity was low because all miners knew it was an electrical shed and, with the exception of Mr. Peterson, had no 

reason to enter it. I also find that Tide Creek's negligence was 

low. A penalty of $20.00 is appropriate. 

395 
2. citation No. 4339823 alleges that the motor for the ElJay gyro was not grounded creating a shock hazard in violation of 

section 56.12025. The safety standard provides, in part, that 

all metal encasing electrical circuits shall be grounded or provided with equivalent protection. Mr. Widows testified that all 

electrical circuits must be grounded back to the source. (Tr. 

55-59, 172). He stated that the motor is part of a three-phase 

480-volt circuit that required a fourth ground wire. He testified that if one of the wires touched the casing of the motor, 

the metal could become energized creating an electric shock 

hazard. Id. Mr. Widows said that frame grounding is not sufficient under the safety standard because "you can never tell how 

good the frame is" and a buildup of rust or corrosion could 

interfere with .the grounding system. (Tr. 57). Mr. Peterson 

testified that the cited motor was bolted down to metal and that 

all metal pieces at the crusher are interconnected with grounding 

straps including this motor. (Tr. 322-26, 371-73). He stated 

that the motor was grounded as required by the standard. 

The Secretary contends that the standard requires that an 

operator install a separate ground wire returning to the power 

source and that frame grounding is unacceptable under the 

National Electrical Code. He maintains that a fourth grounding 

wire is required under the standard. Tide Creek argues that the 

safety standard does not require any particular type of 

grounding. 

I credit the testimony of Mr. Peterson that each piec e of 

metal at the crusher was interconnected with grounding straps, 

including the cited motor, and that a ground wire was connected 

to the frame of the crusher and the mine's grounding rod. (Tr. 

3 22-26, 372-73, 411-13). He welds about twice a month using one 

electrical lead and the frame of the crusher as the ground. 

Mr. Widows testified that a continuous fourth grounding wire is 

required by the standard. (Tr. 402-11). Mr. Widows, however, 

did not conduct any test to determine if the motor was grounded 

and did not examine Tide Creek's grounding system. He simply 

concluded that it violated the standard because there was no 

fourth grounding wire. 

The standard does not set forth any particular means of 

grounding the metal compartment of a motor. "Electrical grounding" is defined as meaning "to connect with the ground to make 

the earth part of the circuit." 30 C.F.R. § 56.2 In addition, 

the standard does not incorporate the National Electrical Code 

by reference. I find that the Secretary did not establish a 

violation. The Secretary has the burden of proof and he has not 

shown that the casing for the motor was not connected to the 

earth. I do not doubt that a fourth wire grounding system is 

state of the art at the present time and that it offers certain 

advantages over Tide Creek's grounding system. The Secretary 

failed to show, however, that the metal encasing the cited motor 

396 
was not grounded nor provided with equivalent protection. See, 

e.g. McCormick Sand Corp., 1 FMSHRC 21, 23-24 (January 1980) 

(ALJ). Accordingly, this citation is vacated. 

3. Citation No. 4339824 alleges that continuity and resistance of the grounding system had not been tested in violation of 

section 56.12028. The safety standard provides, in part, that 

continuity and resistance of the grounding system shall be tested 

at the time of installation, repair and modification, and annually thereafter. Mr. Widows testified that he asked Mr. Peterson 

whether he had performed such tests and that he replied "No." 

(Tr. 59-61, 173). He stated that the purpose of the test is to 

"make sure that all motors, electrical boxes, energized circuits, 

have a good ground path back to the source .... " (Tr. 60). 

The test would disclose any ungrounded motors. Mr. Peterson did 

not deny that the grounding system had not been tested and stated 

that the first time that an electrician tested the ground system 

was after he added a fourth wire ground to abate Citation No. 

4339823. (Tr. 371-73). Tide Creek contends that Mr. Peterson's 

use of the grounding system to operate his welder is a sufficient 

test under the standard. 

I find that the Secretary established a violation. There is 

no dispute that the test was not done and Mr. Peterson's use of 

the grounding system to operate his welder does not comply with 

the standard. I agree with Mr. Widows that the violation was not 

S&S and was not serious. I also agree that Tide Creek's negligence was moderate. A penalty of $50.00 is appropriate. 

4. Citation No. 4339853 alleges that two cover plates were 

missing from junction boxes in 110-volt lighting circuits in the 

shop in violation of section 56.12032. The boxes were about 8~ 

feet high and no bare copper wire was observed. The safety 

standard provides that inspection and cover plates on electrical 

equipment and junction boxes be kept in place at all times except 

during testing and repair. Mr. Widows testified that he observed 

the condition while inspecting the shop. (Tr. 101-07). Tide 

Creek argues that the citation should be dismissed because there 

is "no testimony in the record that the pictured items are 'electric equipment' or 'junction boxes'" (T.C. Br. at 23). 

I find that the items cited are "junction boxes," as that 

term is used in the standard, and that the Secretary established 

a violation. Mr. Widows did not use the term "junction box" but 

called them "electrical boxes." (Tr. 101). There is no question, however, that the boxes in which the leads for the lights 

in the shop were connected to the power source did not have 

covers. (Ex. P-14). The boxes were junction boxes. I find that 

the violation was not S&S and not serious. The junction boxes 

were on the ceiling and the shop was used for storage only. I 

also find that Tide Creek's negligence was low. A penalty of 

$20.00 is appropriate. 

39 7 
5. Citation No. 4340483 alleges that the cover box for the 

El-Jay.gyro motor was missing exposing the insulated connections 

in violation of section 56.12032. The citation states that the 

box was about seven feet high. Mr. Widows testified that the box 

encloses electrical connections to keep the weather out and that 

the cover was missing. (Tr. 40-43, 162-62, 193-94; Ex. P-3). He 

stated that the condition created a hazard because rain could get 

into the electrical connections, cause a short, and injure someone. Id. Mr. Peterson testified that he took the cover off the 

box because the motor shakes and jumps causing the wires to rub 

against the cover. (Tr. 318-321). He was concerned that the 

wires could short out. Id. He testified that at the time the 

citation was issued the wires were intact and that the condition 

did not create a hazard. Id. 

Tide Creek contends that removal of the cover plate was a 

"repair" as that term was used in the safety standard because it 

was removed to prevent a short circuit caused by vibration of the 

crusher. It argues that the standard is therefore inapplicable. 

I disagree and find that the Secretary established a violation. 

The term "repair" does not include the permanent removal of the 

box's cover to prevent wires from rubbing against the cover. I 

construe the exception to refer to repairs to the wires, their 

connections, and the box itself rather than a permanent solution 

to a problem. There is no requirement that the cover be metal. 

I find that the violation was not S&S or serious. Given the 

location and condition of the wires in the box the hazard was 

minimal. I also find that Tide Creek's negligence was low. A 

penalty of $20.00 is appropriate. 

6. citation No. 4339854 alleges that there was an improper 

splice on a 110-volt power circuit in the shop in violation of 

section 56.12013. The citation further states that the splice 

was in the corner of the shop where there was little exposure and 

no bare copper leads were observed. The safety standard provides, in part, that permanent splices and repairs made in power 

cables shall be mechanically strong, insulated to a degree equal 

to that of the original and provided with damage protection as 

near as possible to that of the original. Mr. Widows testified 

that the two cables had been spliced using a wire nut without 

additional insulation or a box. (Tr. 69-71, 176-77, 200-01; 

Ex. P-8). He stated that using a wire nut did not satisfy the 

requirements of the standard. Id. Mr. Peterson testified that 

the splice was temporary and that it was not as strong as the 

original, but that one could not be injured by it because it was 

insulated to the same degree as the original. (Tr. 326-28). 

Tide Creek contends that the citation should be vacated 

because the standard applies only to "permanent splices and 

repairs of power cables." Tide Creek argues that the splice was 

a temporary solution and that the Secretary failed to prove a 

necessary condition precedent to a violation. Mr. Peterson 

39 8 
testified that the cable went to a new transformer that he had 

just installed because the old transformer was no longer working. 

(Tr. 326-27). He said that he attached the wires with a wire nut 

as a temporary measure and Mr. Widows arrived shortly thereafter. 

I credit Mr. Peterson's testimony in this regard. I also credit 

his testimony that it did not present a shock hazard. 

The standard clearly states that-it applies only to permanent splices and repairs of cables, not to temporary splices. As 

stated above, the splice was not in an easily accessible area. I 

find that the splice was temporary and that the cited standard 

does not apply. Accordingly, the citation is vacated. 

7. Citation No. 4340484 alleges that the start and stop 

switch for the cross belt was not labeled and could not be 

readily identified by location in violation of section 56.12018. 

The safety standard provides that principal power switches shall 

be labeled to show which units they control unless identification 

can be made readily by location. Mr. Widows testified that a 

start/stop switch was not labeled and could not be identified by 

location. (Tr. 44-46, 163-65, 194-96). He determined that it 

was for the cross belt by asking Mr. Peterson. Id. At the time 

of the hearing, ~e could not remember if there were any markings 

on or near the switch but testified that he would not have issued 

the citation if it was properly labeled. Id. Mr. Peterson testified that dust from the crusher would obliterate any label and 

that he is the only person who uses the switch in any event. 

(Tr. 321-22). If anything goes wrong, he shuts down the plant at 

the two main switches and everything is dead. Id. He stated 

that the crusher is a one-man operation and he is the only one 

who would have any need to shut off ·the power. 

Tide Creek argues that because Mr. Widows did not have a 

clear recollection of the switch or any marking on the switch at 

the hearing the citation should be vacated. It also argues tha t 

the switch is identifiable by location since Peterson knows where 

it is and what it operates, and he is the only person who works 

at the crusher. I find that the Secretary established a violation. Mr. Widows testified that the switch was not labeled, 

although he could not remember if there were any markings in 

the area. Mr. Peterson's testimony indicates that it was not 

labeled. Accordingly, I find that the switch was not labeled. 

I also find, based on Mr. Widow's testimony, that i t could not be 

readily identified by location. As stated above, the Secretary 

is not required to show that a hazard was created to establish a 

violation. 

I find that the violation was not S&S and that it created 

little or no hazard. I credit Mr. Peterson's testimony that 

other miners would not be at the crusher when it was operating 

and would not be in the position of having to turn off the switch 

399 
in the event of an emergency. I also find that Tide Creek's 

negligence was low. A penalty of $20.00 is appropriate. 

B. GUARDING CITATIONS 

Tide Creek raises a number of issues that are common to all 

of the guarding citations. Each citation was issued under 30 

C.F.R. § 56.14107, which provides: 

(a) Moving machine parts shall be 

guarded to protect persons from contacting 

gears, sprockets, chains, drive, head, tail, 

and takeup pulleys, flywheels, couplings, 

shafts, fan blades, and similar moving parts 

that can cause injury. 

(b) Guards shall not be required where 

the exposed moving parts are at least seven 

feet away from walking or working surfaces. 

The citations involve pinch points of belts and pulleys. 

Tide Creek contends that each citation should be vacated because 

only Mr. Peterson travels within eight feet of the cited areas 

and he does so only when the crusher is not running. The evidence discloses that the other employees drive trucks and do not 

ordinarily walk past the cited areas when the crusher is operating. The record also reveals that Mr. Peterson ordinarily approaches the cited areas only to grease bearings and he does so 

only when the crusher is not running. 

The Commission held that the most logical construction of a 

guarding standard "imports the concepts of reasonable possibility 

of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary 

human carelessness." Thompson Brothers Coal Co., Inc., 6 FMSHRC 

2094, 2097 (September 1984). The Commission stressed that the 

construction of safety standards involving miners' behavior 

"cannot ignore the vagaries of human conduct." Id. (citations 

omitted). Thus, I am required to consider all relevant exposure 

and injury variables including "accessibility of the machine 

parts, work areas, ingress and egress, work duties, and ... the 

vagaries of human conduct" on a case-by-case basis. Id. 

Taking these factors into consideration, I find that, as a 

general matter, the fact that employees do not enter the crusher 

area when it is running is not a valid defense to the citations. 

It is not disputed that there is no physical barrier to prevent 

an employee from walking into the crusher area past the cited 

pinch points. An employee could stumble and come in contact with 

a pinch point. The fact that such an event is unlikely relates 

to the gravity of the violation and not whether a violation 

occurred. I find that it is highly unlikely that anyone would 

400 
walk through the crusher while it was running but, given the 

vagaries of human conduct, I cannot totally rule that possibility 

out. An employee could decide that he needed to tr~vel through 

the area; Mr. Peterson could be preoccupied and not see the employee; and the employee could slip, fall and injure himself in a 

pinch point. 

I consider these arguments on a citation-by-citation basis, 

as discussed below. 

1. Citation No. 4339821 alleges that the back side of the 

V-belt pulleys for the El-Jay gyro were not guarded to prevent 

persons from contacting the pinch points in violation of section 

56.14107(&). The citation states that the pulleys were about 

four feet high and that the exposure was minimal since the front 

side was guarded. Mr. Widows stated that people walk on the 

guarded side of the pulley and that if someone slipped and 

grabbed the guard to brace himself, his fingers could come in 

contact with the pinch point. (Tr. 88-92; Ex. P-12}. Mr. Peterson testified that there was a chain between two posts to keep 

people out of the area. (Tr. 336-40, 438-49; Ex. R-21). He also 

testified that the moving part was not within seven feet of a 

work area, but t .hat it was within seven feet of a walk area. Id. 

He stated that he walks by the pulley three or four times a day, 

but that the crusher is not operating at that time. Finally, he 

stated that if you grabbed the belt while the pulley was running, 

it would throw you towards the motor not the pinch point. (Tr. 

338} . 

Tide Creek argues that this citation should be vacated 

because there was no working or walking surface within seven 

feet. It also argues that the chain was accepted as a guard by 

an MSHA inspector during a previous inspection. Finally, it 

contends that there was no chance of an injury because the pulley 

runs away from the pinch point towards the electric motor. 

Based on the evidence, I find that the Secretary established 

a violation. Unguarded moving machine parts were present within 

seven feet of where Mr. Peterson walks every day to run the 

crusher. The pulley is not operating at that time. As discussed 

above, other employees would not ordinarily walk through this 

area while the crusher was operating. Given the vagaries of 

human conduct, however, an employee could walk by the pulley 

while it was operating to speak with Mr. Peterson in the control 

tower. Mr. Peterson could be preoccupied with other matters at 

the control tower and not see the employee. The employee could 

slip and his fingers could become entangled in the pinch point. 

He could grab the lower part of the belt by accident. As stated 

above, the fact that the condition created little or no hazard to 

miners is not a defense to the violation. 

401 
Perimeter guarding of the area around a machine is not an 

acceptable alternative to site specific guarding of the moving 

part. See, e.g. Moline Consumers co., 15 FMSHRC 1954 (September 

1993) (ALJ); Brown Brothers Sand co., 17 FMSHRC 578 (April 1995) 

(ALJ); Walker Stone Co., 16 FMSHRC 337, 357 (February 1994) (ALJ). 

Thus, the chain that was supported by two posts along one side of 

the pulley is not an acceptable guard. To comply with the standard, the guard must prevent an employee from unintentional contact with the moving part. As discussed above, the Secretary is 

not estopped from issuing a citation for a violation of a safety 

standard because an inspector on a previous inspection did not 

cite the condition. In this instance, an MSHA inspector accepted 

the chain as a guard during an inspection that occurred sometime 

between 1979 and 1982. I find that this fact does not warrant a 

dismissal of the citation, but rather indicates that Tide Creek's 

negligence was quite low. "Although the record reflects some 

confusion surrounding MSHA's [interpretation of the safety standard], as a general rule, 'those who deal with the government are 

expected to know the law and may not rely on the conduct of government agents contrary to law'" Emery Mining Corp. v. Secretary 

of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984) (quoting Heckler v . 

Community Health Services, 104 S.Ct. 2218, 2226 (1984)). 

Based on the above, I find that the violation was not S&S 

and that the gravity was low because miners did not travel near 

the cited area while the machine was running. I also find that 

Tide Creek's negligence was low. Taking into consideration all 

of the factors discussed above, a penalty of $20.00 is 

appropriate. 

2 . Citation No. 4339855 alleges that the self-cleaning tail 

pulley for the bunker conveyor was not provided with a guard to 

prevent persons from contacting the pinch points in violation of 

section 56.14107(a). The citation states that the pulley was 

about three feet high and that persons are not normally in the 

area when the crusher is running. Mr. Widows testified that an 

employee could accidentally get his hand caught in the pinch 

points and sustain a serious injury. (Tr. 107-115, 185; Ex. 

P-15). Mr. Peterson said that nobody would ever be in the area 

of the tail pulley while the crusher is operating. (Tr. 341-343, 

348) . 

Tide Creek argues that the moving machine part is more that 

seven feet from a walking or working surface. It states that the 

evidence shows that it is at least 15 feet from the control tower 

and at least 15 feet from the other miners driving trucks. It 

points to Mr. Widows' testimony that "people could go up there 

but, more than likely, they would not." (Tr. 112). In sum, Tide 

Creek contends that no one works or walks near the belt when it 

is operating. 

402 
Tide creek also argues that this citation should be barred 

by the doctrine of res judicata. In John Peterson. d/b/a Tide 

Creek Rock Products, 4 FMSHRC 2241 (December 1982), Commission 

Administrative .Law Judge George A. Koutras adjudicated several 

guarding citations at Tide Creek's facility. Tide Creek argues 

that two of the areas that Mr. Widows cited were previously cited 

by another MSHA inspector and that Judge Koutras vacated the 

citations on the merits. Accordingly, it contends that the 

issues with regard to these citations have been previously 

adjudicated and that the Secretary cannot relitigate them now. 

Based on the evidence, I find that the Secretary established 

a violation. People did not routinely work in and around the 

self-cleaning tail pulley and it was not along a normal walkway. 

Nevertheless, it was in an open area that was easily accessible 

to anyone at the mine. The pinch point presented a hazard to 

anyone who walked through the area. Given the vagaries of human 

conduct, an employee could enter the area without being detected, 

slip on the mud under the tail pulley, and get his hand caught in 

the pinch point. 

I also find that res judicata does not apply. Judge Koutras's description of the conditions at the self-cleaning tail 

pulley is quite similar to the conditions that prevailed at the 

time the citation was issued in the present case. 4 FMSHRC at 

2255. The safety standard at the time of Judge Koutras's decision was different from the present safety standard. The old 

safety standard, 30 C.F.R. § 56.14-3, provided that guards at 

tail pulleys "shall extend a distance sufficient to prevent a 

person from accidentally reaching behind the guard and becoming 

caught between the belt and the pulley." The present standard 

does not include such qualifications. All tail pulleys must be 

guarded if they are less than seven feet away from walking and 

working surfaces. Thus, the principal legal issue, the interpretation of the safety standard, differs. 

Based on the above, I find that the violation was not S&S 

and that the gravity was low because miners did not travel near 

the cited area while the machine was running. I also find that 

Tide Creek's negligence was low. Taking into consideration all 

of the factors discussed above, a penalty of $20.00 is· appropriate. 

3. Citation No. 4339856 alleges that the head pulley and 

V-belt drive of the "under El-Jay" conveyor was not guarded to 

prevent persons from contacting the pinch points in violation of 

section 56.14107(&). The citation states that the pulley was 

about six feet above the ground and that there was little exposure because miners are not in the area. Mr. Widows testified 

that someone could become entangled in the pinch points and 

sustain an injury. (Tr. 110-15, 185; Ex. P-15). Mr. Peterson 

403 
testified that nobody would ever be in the area of the tail 

pulley while the crusher is operating. (Tr. 341-343, 348). 

The cited area was adjacent to the area cited ·in the previous citation, No. 4339855. (Ex. P-15). The only significant 

difference is that the unguarded area was about six feet off the 

ground in this citation and about three feet off the ground in 

the previous citation. The parties arguments are the same with 

respect to both citations. 

For the reasons discussed above, I find that the citation 

should be affirmed. I also find that the violation was not S&S 

and that the gravity was low because miners did not travel near 

the cited area while the machine was running . I also find that 

Tide Creek's negligence was low. Taking into consideration all 

of the factors discussed above, a penalty of $20.00 is 

appropriate. 

4. citation No. 4339858 alleges that the V-belt drive for 

the main screen was not provided with a guard to prevent persons 

from contacting the pinch points in violation of section 

56.14107(a). The citation states that the V-belts were about 

three feet high and that a ladder was present which provided 

access to the V-belts. It further states that the operator 

stated that the drive was greased when the crusher was not 

operating. Mr. Widows testified that it is not likely that the 

alleged violation would cause an injury because the only access 

to the area was by the ladder. (Tr . . 115-18, 185-86). · He testified that "anybody could walk up there, but it was out of the way 

•.• it wasn't a main travelway." (Tr. 116). Mr. Peterson testified that nobody goes up the ladder to the V-belt drive when the 

crusher is running. (Tr. 295-96, 366). 

Tide Creek argues that the alleged pinch point is more than 

seven feet from a walking or working surface and that a person 

would have to climb a 12-foot ladder to get to the pinch point. 

The Secretary contends that because the ladder was "up" at the 

time of the inspection, it was a working surface and the pinch 

point was required to be guarded. (Ex. P-18). 

I find that the Secretary did not establish a violation 

because the moving machine part was more than seven feet from a 

walking or working surface. I credit Mr. Peterson's testimony 

that he greases the drive when the crusher is not operating. 

There is no other reason for anyone to climb the 12-foot ladder. 

Even considering the vagaries of human conduct, I find that a 

miner would not walk or work within seven feet of the pinch 

point. Under the circumstances of this case, the ladder was not 

a walking or working surface. Accordingly, the citation is 

vacated. 

404 
5. Citation No. 4339851 alleges that the air compressor 

behind the shop had unguarded V-belts in violation of section 

56.14107(a). The citation states that the compresspr is infrequently used and that minimal exposure is present. It further 

states that the V-belt pulley was on the back side of the compressor and about three feet high. Mr. Widows testified that an 

accident was unlikely because the belts were back against the 

wall in an out-of-the-way area. (Tr. 67-69, 175; Ex. P-7). He 

also stated that there was an electrical box nearby and that if 

someone were to throw the switch on the box, he would be close to 

the compressor. Id. Mr. Peterson testified that the compressor 

is automatically activated, there is no switch to turn it off or 

on. (Tr. 267-70, 356-57; Ex. R-4). He also stated that the compressor is about 15 feet from the road and is not within seven 

feet of a walking or working surface . Id. He testified that no 

employee goes near the compressor at any time. Id. Finally, he 

testified that the switch on the electrical box controls a pump 

in the creek that is seldom used. Id. 

Tide Creek argues that the compressor is more than seven 

feet from any walking or working surface, particularly given its 

remote location against the back wall of the shop. The Secretary 

contends that the area around the compress or is a working surface 

because someone occasionally turns on the electrical switch near 

the compressor to activate a pump. 

Based on the evidence, I find that the Secretary established 

a violati on. The area around the compressor is a working surface 

on an occasional basis when the water pump is turned on. A person could trip and accidentally get his fingers caught in the 

pulley for the V-belts, if the compressor was operating. The 

risk of an injury is low, however, because of the location of the 

pulleys against the back wall of the shop. 

Based on the above, I find that the violation was not S&S 

and that the gravity was low because a miner would enter the area 

only occasionally and the pinch points are partially guarded by 

location. I also find that Tide Creek's negligence was low. 

Taking into consideration all of the factors discussed above, a 

penalty of $20.00 is appropriate. 

6. Citation No. 4339859 alleges that the tail, head, and Vbelt pulleys for the cross belt were not guarded to prevent persons from contacting the pinch points in violation of section 

56.14107(a). The citation states that the pulleys were about 

four to five feet high and that persons pass by the tail pulley 

on their way to the control tower for the crusher. Mr. Widows 

testified that one had to pass within two feet of the cited area 

to get to the control tower. (Tr. 120-24; 134, 136-38; Exs. P-1, 

P-16). He also testified that a miner would have to climb over 

the cited area to get to a work platform. Id. He determined 

that the alleged violation was S&S because anyone walking in the 

4 0S 
area would be exposed. Id. Mr. Peterson testified that the 

cited area is more than seven feet from a walking or working 

surface. (Tr. 299-301; Exs. R-2, R-18). He stated that no miner 

walks across the cited area except him to grease fittings and 

that he greases the fittings before he starts the crusher. Id. 

He stated that it is not the route he or anyone else uses to go 

to the control tower. 

On February 7, 1994, Mr. Widows issued Order No. 4340486 

under section 104(b) of the Mine Act because he determined that 

Tide Creek had not abated the conditions desc ribed in the citation. The order states that the operator built a handrail rather 

than a guard to abate the citation despite the fact that Tide 

Creek was advised that a handrail would not be acceptable. 

Tide creek contends that the citation should be vacated 

because the cited area is more than seven feet from a walking or 

working surface. In addition, it argues that the alleged violation is not S&S because it was highly unlikely that anyone would 

be injured. It argues that the section 104(b) order should not 

have been issued because it installed the handrails in a goodfaith attempt to abate the citation. Finally, Tide Creek contends that the record makes clear that more time for abatement 

was required and Mr. Widows' refusal to provide more time was an 

abuse of his discretion. 

Based on the evidence, I find that the Secretary established 

a violation. I credit the testimony of Mr. Peterson that the 

cited area was not along the route that he or other miners take 

to reach the control tower. Nevertheless, Mr. Peterson testified 

that he walks along the area to reach fittings. Even though he 

greases the fittings before the crusher is started, the cited 

area is within seven feet of a walking surface . As stated above, 

the Secretary is not required to show that a haz ard was created 

to establish a violation. 

I find, however, that the violation was not S&S and that the 

gravity was low. It is highly unlikely that a miner would walk 

along the route suggested by Mr. Widows while the crusher was 

operating, even taking into consideration the vagaries of human 

conduct. The employees of Tide Creek work in discrete areas and 

it is highly unlikely that anyone would climb upon the superstructure of the crusher and thereby come in contact with the 

cited pinch points. The Secretary failed to establish "a reasonable likelihood that the hazard contributed to will result in an 

injury." Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). 

Accordingly, the violation is not S&S. 

An MSHA inspector is authorized to issue an order under 

section 104(b) of the Mine Act if he determines on a subsequent 

inspection that: (1) the violation described in the citation has 

not been totally abated within the period of time originally 

4 05 
fixed in the citation; and (2) the period of time for abatement 

should not be further extended. It is clear that the violation 

was not totally abated within the time set in the citation. 

Whether the time should be extended is subject to the inspector's 

reasonable exercise of discretion. Tide Creek contends that it 

was trying to abate about 33 citations in a short period of time 

with only three miners. Mr. Peterson stated that it took about 

three weeks to get everything done. {Tr. 364). I find that 

Mr. Widows did not abuse his discretion in issuing the order. By 

that time, Mr. Peterson knew or should have known that a handrail 

would not guard the moving machine parts. Mr. Widows advised him 

of that fact on January 28. {Tr. 137-38). I appreciate that 

Tide Creek faced a difficult task, but its actions in this instance did not excuse its failure start working on guards. 

I find that the negligence of Tide Creek was low. The 

violation was not timely abated. Taking into consideration the 

factors discussed above, including the fact that the violation 

was not S&S and that the gravity was low, a penalty of $50.00 is 

appropriate. 

7. Citation No. 4339860 alleges that the tail pulley of the 

three-inch conveyor was not guarded to prevent persons from contacting the pinch points in violation of section 56.14107(a). 

The citation states that the pulley was about three feet high, 

but there was little exposure in the area. Mr. Widows testified 

that the pinch point of this conveyor was close to the area cited 

in the previous citation, No. 4339860. {Tr. 124-27, 138-40; Ex. 

P-1). He determined that the exposure was not great because the 

area is infrequently traveled. Mr. Peterson testified that the 

cited area is more than seven feet from a walking or working surface. (Tr. 299-301; Exs. R-2, R-18). He stated that no miner 

walks across the c ited area except him to grease fittings and 

that he greases the fittings before he starts the crus her. Id. 

He stated that it i s not the route he or anyone else u s es to go 

to the control tower. 

On February 7 , 1994, Mr. Widows issued Order No. 4339827 

under section 104(b) of the Mine Act because he determined that 

Tide Creek had not abated the condition described in the citation. The order states that the operator built a handrail rather 

than a guard to abate the citation despite the fact that Tide 

Creek was advised that a handrail would not be acceptable. 

The cited area was adjacent to the area cited in the previous citation, No. 4339859. (Ex. P-15). The facts are essentially the same. The parties' arguments are the same with 

respect to both citations and the section 104(b) orders. 

For the reasons discussed above, I find that the citation 

should be affirmed. The area was within seven feet of a walking 

surface and a guard was not present. I also find that the viola407 
tion was not S&S and that the gravity was low because it was 

highly unlikely that miners would travel near the cited area 

while the machine was running. 

I also find that the section 104{b) order should be affirmed, for the reasons discussed above. Finally, I find that 

Tide Creek's negligence was low. Taking into consideration the 

factors discussed above, including the fact that the violation 

was not S&S and that the gravity was low, a penalty of $50.00 is 

appropriate. 

C. OTHER EQUIPMENT CITATIONS 

1. Citation No. 4126437 alleges that the cat 966 loader did 

not have a back-up alarm in violation of sectio n 56.14132(b) (1). 

The citation states that the operator of the vehicle had an obstructed rear view and that no one was present to signal when it 

was safe to back up. The safety standard requires an automatic 

reverse-activated signal alarm on sel f-propelled mobile equipment 

if the operator has an obstructed view to the rear. Mr. Widows 

testified that he obse rved the loader backing up witho ut a reverse alarm system or a spotter. {Tr. 75-80; Exs. P-10, P-11). 

He stated that :.the operator would not be able to see anyone close 

behind the loader if he were to back up, because of the obstructed view. Mr. Peterson testified that nobo dy is ever walking 

around in the vicinity o f the loader. {Tr. 3 31-37). 

Tide Creek argues that the evidence does not e s tablish that 

the operator had an obstructed view. In addition, it argues that 

the evidence establishes that only one employee is in the stockpile area and he is the operator of the loader. Finally, it contends that the safety standards are designed to protect miners 

and not others who may be in the area. {At the time the citati on 

was issued, a customer was in the stockpile area) . 

I find that the Secretary establi shed a violation. The evidence makes clear that the loader operator had an o bstructed 

view. {Tr. 76; Exs. P-10, P-11). There is no dispute that a 

backup alarm was not present. While it is true that only one 

employee ordinarily works in the stockpil e area, other emplo yees 

could be in the area without the knowledge of the loader operator. Indeed, the fact that others are not usually there could 

give the loader operator a false sense of security. 

I also f i~d that the violation was S&S because the Secretary 

established the elements of the S&S test set forth in Mathies. 

First, as discussed above, there was a violation of the safety 

standard. Second, the violation contributed to a measure of danger to safety. Third, there was a reasonable likelihood that the 

hazard contributed to will result in an injury. Given the noise 

of the loader and the fact that the operator's vision to the rear 

is restricted, it is reasonably likely that someone would be 

408 
injured as a result of the violation. Mr. Peterson walks around 

the property and it is unlikely that the loader operator would be 

able to see Mr. Peterson if he were backing up. Finally, an 

injury would be of a reasonably serious nature. I find that Tide 

Creek's negligence was moderate. Based on the above, a penalty 

of $100.00 is appropriate. 

2. Citation No. 4126439 alleges that Tide Creek was not 

conducting inspections of mobile equipment used during the shift 

in violation of section 56.14100(&). The safety standard provides that self-propelled equipment to be used during a shift 

shall be inspected by the equipment operator before being placed 

in operation. Mr. Widows testified that he knew that safety inspections were not being made because the loader did not have a 

back-up alarm. (Tr. 81-84). He could not recall if he asked the 

loader operator if a safety inspection was made or whether he 

requested any documentation to support a safety inspection. Id. 

He said that such a document request was standard MSHA procedure. 

Mr. Peterson testified that the equipment operators tell him if 

there is any problem with their equipment. (Tr. 334-35). 

Tide Creek argues that the Secretary failed to prove that an 

inspection was ·not made. I agree. The fact that the back-up 

alarm was not functioning does not establish that a safety inspection was not made. Mr. Widows could not remember whether he 

requested to see a safety checklist. The fact that such a request is standard MSHA procedure is not enough to establish a 

violation. Accordingly, the citation is vacated. 

3. Citation No. 4340481 alleges that the red Mack haul 

truck was not provided with seat belts in violation of section 

56.14131. The citation states that the truck was used on level 

ground around loaders and on short hauls. The safety standard 

provides that seat belts shall be provided and worn in haulage 

trucks. Mr. Widows testified that he looked into the vehicle and 

could not find any seat belts. (Tr. 127-29). He stated that he 

did not consider the violation to be S&S because of the manner in 

which the truck is used. Id. He further stated that Mr. Peterson told him that he thought that older vehicles did not need to 

be equipped with seat belts. Mr. Peterson testified that the 

cited haul truck was manufactured in the early 1960s. (Tr. 344-

47; Ex. R-23). He said that it is only used to make 400-foot 

trips over flat ground and that the top speed is 15 miles per 

hour. He said that the lack of seat belts did not create a hazard because the truck would not tip over on flat ground and it 

is only used on straight, flat trips. 

Tide Creek argues that the Secretary did not establish that 

the cited vehicle is a haulage truck. I disagree. The vehicle 

is a dump truck. {Ex. R-23). Although the term "haulage truck" 

is not defined by the Secretary, I conclude that an ordinary dump 

409 
truck is a "haulage truck" as that term is used in the safety 

standard. 

I agree with Mr. Widows that the violation was not S&S and 

was not serious. I find that Tide Creek's negligence was low. 

A penalty of $20.00 is appropriate. 

D. TRAVELWAY CITATIONS 

1. Citation No. 4339847 alleges that there was no handrail 

in front of the conveyor at the operator's control tower to prevent persons from falling onto the conveyor in violation of section 56.11002. The safety standard provides, in part, that 

crossovers, elevated walkways, elevated ramps, and stairw~ys 

shall be of substantial construction provided with handrails, and 

maintained in good condition. Mr. Widows testified that there is 

a conveyor that runs along the side of the control tower for the 

crusher. (Tr. 97-101; Ex. P-13). He stated that one of the 

duties of the crusher operator is to pick pieces of wood off the 

conveyor. Id. He testified that the lack of a handrail created 

a risk of falling onto the belt, which was about 18 inches high. 

Id. Mr. Peterson testified that he stands all day in the control 

tower when the ~rusher is operating. (Tr. 293). 

Tide Creek argues that the control tower is not a crossover, 

elevated walkway, elevated ramp, or a stairway. It contends that 

the control tower is a platform and that the safety standard does 

not apply. Tide Creek states that Mr. Peterson is the only person who works at the control tower and that he operates the controls for the crusher from there. (R-17). The secretary did not 

address this issue. 

The safety standard applies to "crossovers, elevated walkways, elevated ramps, and stairways." Although a work platform 

could be construed as a walkway under many circumstances, I find 

that the platform cited here is not a walkway. The term "walk- way" is not defined by the Secretary, but "travelway," a similar 

term, is defined as "a passage, walk or way regularly used ... 

for persons to go from one place to another." 30 C.F.R. § 56.2. 

The control tower was not a route miners would take to go from 

one place to another. It was not a route that maintenance personnel would use to gain access to equipment. Rather, it was a 

work station for Mr. Peterson. I find that the Secretary failed 

to prove that the control tower was covered by the subject safety 

standard. Compare, Moltan Co., 11 FMSHRC 351, 355-36 (March 

1989)(ALJ). Accordingly, this citation is vacated. It is important for Tide Creek to understand, however, that another safety 

standard, 30 C.F.R. § 56.11027, requires handrails on work 

platforms. 

2. Citation No. 4339849 alleges that the work p l atform 

along the second screen was not provided with handrails to 

410 
prevent a person from falling in violation of section 56.11002. 

The citation states that the platform was about six feet high and 

that it is useq to change the shacker screens. Mr. Widows testified that Mr. Peterson told him that he needed to get on the 

platform to perform periodic maintenance. (Tr. 26-31, 148-51, 

153-55, 191-93; Ex . P-1}. Mr. Widows said that Mr. Peterson 

could fall six feet into a puddle of water without the handrails. 

Mr. Peterson testified that the cited platform is not a walkway, 

crossover, ramp, or stairway, and that it is not used to get from 

one place to another at the crusher. (Tr. 317-18). 

Tide Creek argues that the cited area was not subject to the 

cited standard. For the reasons set forth above, I agree. Indeed, Mr. Widows referred to the area as a "work platform." Although a work platform may also be an elevated walkway in many 

instances, in this case the Secretary failed to establish that it 

was. Apparently, Mr. Peterson, on an infrequent basis, stands on 

the platform to change a shaker screen. There is little evidence 

as to the use of this platform. Accordingly, the citation is 

vacated. 

3 . Citation No. 4339846 alleges that the elevated walkway 

along the bunker silo was not provided with handrails to prevent 

persons from falling, in violation of section 56.11002. The 

citation states that the walkway was about ten feet h~gh on one 

side and that persons are required to be on the walkway to load 

trucks. Mr. Widows testified that the walkway was where someone 

would stand when trucks are loaded. (Tr. 61-66, 173-75, 198-99; 

Ex. P-6). He said that the walkway is along the bunker silo and, 

after a truck backs in under the silo, an employee stands on the 

walkway and pulls down a lever to release rock into the truck. 

Id. He said that there is a danger that an employee could fall 

while pulling on the lever. He also said that the walkway is a 

wooden plank about ten feet long. Mr. Peterson testified that 

the cited area was not a crossover, walkway, ramp, or stairway. 

(Tr. 301-07, 364}. 

Tide Creek argues that the cited area was not covered by the 

safety standard. It contends that the standard was designed t o 

protect individuals from falling from elevated areas that are 

used as walkways and that the board by the bunker silo· was not 

used in such a fashion. The Secretary did not address this 

issue. 

The cited area is only used when a truck is under the silo 

and is ready to be loaded. A worker steps up on the board and 

pulls down on the handle to release material into the truck. It 

is not a means ·of walking to any other location at the mine and 

no person would be in the area unless a truck was ready to be 

loaded. The Secretary failed to establish that the board was a 

walkway, crossover, ramp, or stairway. A platform may be covered 

by this safety standard in many situations, but the Secretary 

411 
failed to establish that this platform was a walkway. In addition, it appears that the cited area would be covered by section 

56.11027, which requires handrails on scaffolds and work platforms. Accordingly, this citation is vacated. 

E. OTHER CITATIONS 

1. Citation No. 4126433 alleges that the mine operator 

failed to notify MSHA of the opening of the mine in violation of 

section 56.1000. The safety standard provides, in part, that the 

operator of any metal or nonmetal mine shall notify the nearest 

MSHA office before starting operations. The standard also requires such operators to notify MSHA if it intends to close the 

mine on a temporary or permanent basis. The citation states that 

Mr. Widows told Mr. Peterson three years ago to notify MSHA when 

he starts operating. Mr. Widows testified that MSHA never received any notice from Tide Creek that the mine was operating. 

(Tr. 23-26). He further testified that he told Mr. Peterson that 

if he wanted to get started in the mining business, he had to 

notify MSHA in advance. 

Mr. Peterson testified that the mine has been in operation 

since at least 1979 and has had an MSHA identification number 

since that time. (Tr. 307-12, 368-69). He stated that the mine 

was previously inspected by MSHA. He stated that at the time of 

Mr. Widows' previous visit to the mine, the crusher was not running. Apparently, Widows told Peterson on that date that whenever he comes by he cannot find anybody at the mine. He also 

told Peterson that if "you're not running, I'm going to take your 

name out of my book." {Tr. 309). Mr. Peterson testified that 

the mine was operating on that date, but the crusher was not 

operating. He further testified that MSHA inspectors came by on 

subsequent dates, but they did not inspect the mine because the 

crusher was not running. Mr. Voris Probst, who was familiar with 

the mine, testified that the mine has not been closed for the 

past 20 years. (Tr. 393-94, 399-400). He further testified that 

the crusher operates about half of the time. 

The Secretary failed to establish a violation of the standard. I credit the testimony of Peterson and Probst with regard 

to this citation. It is clear from the record that Tide Creek is 

a small family-run business. Mr. Peterson operates the crusher 

and oversees other operations at the minesite. Agnes M. Peterson 

is the president, keeps the books, takes care of the paperwork, 

and acts as Tide Creek's counsel. Mr. Peterson also is engaged 

in logging and farming and Ms. Peterson practices law in st. 

Helens, the county seat. If Mr. Peterson is not at the mine, the 

crusher does not operate because he is the only person who operates the crusher. The safety standard does not require Mr. Peterson to notify MSHA every time he decides to operate the 

crusher. Apparently, there are significant periods when the 

crusher is not operating, but the mine is still open. The fact 

412 
that Mr. Widows decided to take the mine out of his "book" does 

not establish a violation. Tide Creek must have notified MSHA 

that it was operating at some point in the late 1970s because it 

had an MSHA identification number at the time of the inspection. 

There is no evidence that it ever notified MSHA that it was 

closed. Accordingly, this citation is vacated. 

2. Citation No. 4339852 alleges that several compressed gas 

cylinders were ·not secured in a safe manner in violation of section 56.16005. The safety standard provides that compressed and 

liquid gas cylinders shall be secured in a safe manner. The 

citation states that no mobile equipment traveled in the area. 

Mr. Widows testified that two of the cylinders were in the shop 

and one was outside the shop. (Tr. 85-88, 181). He stated that 

they were lying on the ground and the floor, and that Mr. Peterson told him that they were empty. Mr. Peterson testified that 

he keeps cylinders that are full tied up or secured in a cart. 

(Tr. 270-77, 357- 58; Exs. R-8, R-9). He further stated that the 

cited cylinders were empty. 

Tide Creek argues that the cylinders should not have been 

cited because they were empty. It contends that Mr. Peterson 

secures empty bottles by opening the valve and laying them on the 

ground. Tide Creek maintains that this is a safe procedure because it relieves all pressure from inside the cylinder. 

Based on the evidence, I find that the Secretary established 

a violation. The language of the standard makes clear that cylinders must be physically secured whether they are empty or full. 

Although opening the valve of empty cylinders greatly reduces the 

safety hazard, .such a method does not comply with the safety 

standard. I agree with Mr. Widows that the violation was not 

S&S. I find Tide Creek's negligence to be low. A penalty of 

$20.00 is appropriate. 

3. Citation No. 4340482 alleges that an oxygen gas cylinder 

was found in the shop in violation of 56.16005. The citation was 

issued on February 7, 1994. Mr. Widows testified that the cylinder was lying on the floor and it was not secured. (Tr. 31-37, 

151-52, 181, 193). As with the previous citation, No. 4339852, 

the danger is that something heavy may break the valve· and cause 

the gas in the cylinder to be suddenly released. (Tr. 34). 

Mr. Peterson's testimony was the same for both cylinder citations. The parties' arguments were also the same. 

For the reasons discussed above, I find that the Secretary 

established a violation. Mr. Widows determined that the violation was not S&S because the cylinder was not located in an area 

where it was likely that the valve would be broken. At the 

hearing, counsel for the Secretary sought to amend the citation 

to allege an S&S violation based on the evidence. I find that 

the violation was not S&S. The likelihood of an injury contrib413 
uted to by this violation was not very great. I also find that 

Tide Creek's negligence was low. A penalty of $20.00 is 

appropriate. 

4. citation No. 4339826 alleges that a competent person was 

not examining the working place at least once each shift and 

recording these examinations in violation of section 56.18002. 

The safety standard provides, in part, that a competent person 

shall examine each working place at least once each shift for 

safety hazards and that a record of such examinations shall be 

kept. Mr. Widows testified that he asked Mr. Peterson about such 

examinations and that he replied that they had not been done. 

(Tr. 95-97) . 

Tide Creek contends that the Secretary is seeking to prove 

the violation on the basis that if the examinations had been 

performed all of the other citations would not have been issued. 

It contends that this citation constitutes "improper doubling-up" 

and should be vacated. 

Based on the evidence, I find that the Secretary established 

a violation. The Secretary is not seeking to ·establish a violation based on the number of citations issued during the inspection. Rather, ' the Secretary established that the examinations 

were not being performed and records of them were not being kept. 

I agree with Mr. Widows' determination that the violation was not 

S&S or serious~ I find that Tide Creek's negligence was low. A 

penalty of $20.00 is appropriate. 

5. citation No. 4339845 alleges that fire extinguishers 

were not being visually inspected at least once a month in violation of section 56.4201(a)(1). The safety standard provides, 

in part, that all fire extinguishers shall be inspected visually 

at least once a month to determine that they are fully charged 

and operable. Subsection (b) provides that a record of the 

inspections must be kept. Mr. Widows testified that the fire 

extinguishers did not indicate whether monthly examinations were 

being made. (Tr. 119-20, 133, 135-36, 187-88). He stated that, 

typically, markings are made at the extinguisher to note the inspections. He further testified that when he asked Mr. Peterson 

if examinations had been made, he replied that he did not know 

that extinguishers had to be checked. Finally, Mr. Widows 

stated that the fire extinguishers were in operating condition. 

On February 7, 1994, MSHA Inspector Mike J. Williams issued 

Order No. 4340180 under section 104(b) of the Mine Act because he 

determined that Tide Creek had not abated the citation. The 

order states that no apparent effort was made to visually inspect 

fire extinguishers every 30 days. Inspector Williams testified 

that when he talked to Mr. Peterson about the citation, he was 

told that he did not have time to get to it because he was working on abating the more serious citations. (Tr. 207-09). 

414 
Mr. Williams stated that if Mr. Peterson had asked for more time 

to abate the citation, he would have given it to him. Id. 

Tide creek contends that the citation should be vacated 

because it was issued for not having the proper documentation to 

show that the fire extinguishers were inspected. I disagree. 

Mr. Widows testified that Mr. Peterson told him that they had not 

been examined. Accordingly, I find that the Secretary established a violation. 

The citation was not abated within the time originally set 

in the citation and Inspector Williams did not extend the abatement time. He believed that Tide Creek had been given sufficient 

time to inspect the fire extinguishers. I find , however, that 

the inspector abused his discretion in not extending the abate- ment time. There is no dispute that the fire extinguishers were 

operational. It is also clear that Tide Creek was engaged in 

trying to abate over 30 other citations. Given that the extinguishers were in operating condition, it was reasonable for the 

operator to give it a lower priority. Inspector Williams testified that he would have given Tide Creek an extension if it had 

asked. 

At the hearing, Mr. Peterson impressed me as being a rather 

stoic individual. He did not appear to be the type of person who 

would ask for an extension or off er an excuse for not abating a 

citation. He simply advised Mr. Williams that he had been so 

busy with the other citations that he had not been able to get to 

it. As a general matter, it is the responsibility of a mine 

operator to ask for an extension. Given the circumstances of 

this case, however, I find that Mr. Peterson's failure to request 

an extension should be excused. It only took about 15 minutes to 

abate the citation. Based on the above, the order of withdrawal 

is vacated. 

I agree with Mr. Widows that the violation was not S&S and 

was not serious. I find that Tide Creek's negligence was low. 

A penalty of $5.00 is appropriate. 

6. Citation No. 4339844 alleges that there was an accumulation of combustibl~ waste in the oil storage building that 

could create a fire hazard in violation of section 56.4104(a). 

The safety standard provides that waste materials, including 

liquids, shall not accumulate in quantities that could create a 

fire hazard. The citation states that a 30-inch diameter spillage container contained two to three inches of spilled oil and 

that persons are required to enter the building to get supplies. 

Mr. Widows testified that he observed the container with an inch 

or two of spilled oil in it. {Tr. 37-40, 155- 59 ; Ex. P-2). He 

further said that the oil could be ignited by someone smoking or 

by an open flame. He believed that the wooden floor was also 

saturated with oil. He did not believe that there was any 

415 
electricity in the building. He testified that Mr. Peterson told 

him that employees are not allowed to smoke at the mine. 

Mr. Paterson testified that the oil that Mr. Widows saw was 

in a container that was placed under an oil drum to catch any 

drips or spills. (Tr. 278-81, 359-61; Ex. R-10). The container 

was directly under the spout of the oil drum. He determined that 

oil was an inch and a quarter deep. He testified that the oil 

was motor oil used in his mobile equipment and that it does not 

ignite easily. He said that the oil in the container under the 

drum was not waste because he uses it to lubricate chains and 

other items at the mine. He did not believe that it created a 

fire hazard and that he offered to get a torch to show that it 

would not ignite. Mr. Voris Probst, a former plant manager for 

Boise Cascade, .testified that the flash point of the motor oil at 

the mine was so high that it did not pose a fire hazard. 

(Tr. 385-86). 

The Secretary argues that the citation should be affirmed 

because "combustible" is defined as "capable of being ignited and 

consumed by fire." He argues that the fact that the oil is not 

easily ignited is not relevant. I disagree and find that the 

Secretary fail~d to establish that the oil in the drip pans 

created a fire hazard. I credit Tide Creek's evidence that the 

oil was not easy to ignite. I also find that there were no 

ignition sources in the area. Accordingly, the citation is 

vacated. 

7. Citation No. 4126440 alleges that there was no sign 

prohibiting smoking and open flame at the oil storage building in 

violation of section 56.4101. The safety standard provides that 

readily visible signs prohibiting smoking and open flames should 

be posted where a fire or explosion hazard exists. Mr. Widows 

testified that anytime there is a sufficient amount of materials 

to create a fire or explosion hazard, a no smoking or open flame 

sign is required. (Tr. 55, 171-72). He stated that no sign was 

present. He a~so stated that he did not observe any smoking or 

open flames. Mr. Peterson testified that he does not believe 

that there is a fire or explosion hazard in the shed because it 

is a long way from any ignition source. (Tr. 281-82). 

Tide Creek contends that no fire or explosion hazard existed 

in the shed. I disagree. As Exhibit P-2 shows, the shed was 

filled with oil drums, paper, and miscellaneous items that could 

catch fire. The fact that there were no ignition sources in the 

shed is not relevant. The standard is designed to warn people 

not to bring potential ignition sources into the area. A cigarette could ignite paper and rags in the shed, which could propagate a fire. I agree with Mr. Widows that the violation is not 

S&S or serious. I find that Tide Creek's negligence was low. A 

penalty of $20.00 is appropriate. 

41 6 
8. citation No. 4339857 alleges that the shop was not 

maintained in a orderly fashion in violation of section 

56.20003(a). The safety standard provides that workplaces, 

passageways, storerooms, and service rooms shall be kept clean 

and orderly. The citation states that numerous items were a 1 

over the floor creating a tripping hazard. It alleges that persons are required to be in the shop to turn on the lights and 

answer the phone. Mr. Widows testified that there was junk, 

material, and equipment all over the floor presenting a tripping 

hazard. (Tr. 72-73; Ex. P-9). Mr. Peterson testified that he 

goes in and out of the shop on a daily basis, often in the dark, 

and has never tripped or stumbled. (Tr. 329-31). He stated that 

he follows the trail shown on Exhibit P-9. He also stated that 

the shop is for storage of tools only and that there is a phone 

outside that most people use. 

Based on the evidence, I find that the Secretary established 

a violation. The cited area was not clean and orderly, and a 

tripping hazard was created. I find that the violation was not 

S&S or serious. Tide Creek's negligence was low. A penalty of 

$5.00 is appropriate. 

9. Citation No. 4126436 alleges that berms along the roadway up to the pit were not maintained in violation of section 

56.9300. The safety standard provides, in part, that berms shall 

be provided and maintained on the banks of roadways where a dropoff of sufficient grade or depth exists that could cause a vehicle to overturn or endanger persons in equipment. The citation 

states that there was a 20-foot drop-off where a vehicle could 

overturn and roll down. It also stated that pick-ups and frontend loaders use the road. Mr. Widows testified that the cited 

roadway was 20 to 30 feet wide and did not have any berms. (Tr. 

50-54, 168-71; Ex. P-5). He stated that he could see fresh 

rubber tire tracks on the roadway. Mr. Peterson testified that 

the road that was cited went from one level of the quarry to 

another. (Tr. 283-91, 361-63; Ex. R-11). He stated that this 

roadway is changed all the time because he uses the Cat to push 

overburden over the hill and dig a new road around to get the Cat 

back up. Id. He stated that on the day of the inspection he had 

just created that road and $Omeone drove a loader down the road. 

There was no berm because he had been working on it with the Cat. 

He stated that he would not have put a berm on the roadway because the road was there only temporarily. He also testified 

that it was not reasonably likely that anyone would drive off the 

road. Id. He admitted, however, that if someone drove off, he 

could be injured. 

Based on the evidence, I find that the Secretary established 

a violation. The cited area was a roadway with a drop-off of 

sufficient grade or depth to cause a vehicle to overturn. The 

roadway did not have a berm. Although a bench that is not a 

roadway would not need to be equipped with a berm, I find that 

41 7 
the cited area was a roadway because it was used by a front-end 

loader on at least one occasion. If only the Cat had been on the 

bench as part of the mining process, it would not appear that a 

berm would be required. 

The Secretary contends that the violation was S&S. In this 

case, however, the roadway was infrequently used. The evidence 

shows that it was only used once by the front-end loader and that 

the operator did not plan on keeping the road for any period of 

time. Accordingly, I find that the Secretary did not establish 

that it was reasonably likely that the hazard contributed to by 

the violation would result in an injury. See, e.g. Skelton Inc., 

13 FMSHRC 294, 302-04 {February 1991) {ALJ); Lakeview Rock Products, Inc., 17 FMSHRC 83, 90 (January 1995) (ALJ). I find that 

the violation was not S&S. Tide Creek's negligence was low. A 

penalty of $20.00 is appropriate. 

10. Citation No. 4126434 alleges that several large trees 

were observed along the perimeter of the pit in violation of 

section 56.3131. The safety standard provides, in part, that 

loose or unconsolidated material shall be sloped back for at 

least ten feet from the top of a quarry wall in p l aces where 

people work or\ travel. It also states that other conditions at 

or near the perimeter of a quarry wall which create a fall-ofmaterial hazard shall be corrected. The citation states that the 

trees were 20 to 40 feet high and the quarry perimeter was not 

stripped back at least ten feet. In addition, the citation 

states that the trees created a falling hazard for persons working in the quarry . Mr. Widows testified that a couple of trees 

were leaning over near the edge of the quarry and the roots were 

exposed. (Tr. 46-50, 165-66, 186, 196-97; Ex. P-4). He believed 

that the trees could fall into the quarry and injure someone. He 

stated that the area had been recently worked and that the wet 

conditions could cause the trees to fall. He did not know how 

long the trees had been there or what kind they were. 

Mr. Peterson testified that the cited trees were maple trees 

that were six to eight feet back from the edge of the bank. (Tr. 

314-16, 369-701. He stated that the trees were not leaning 

towards a work area. He also stated that maple trees are tough 

to push down because of their extensive root system. · He stated 

that there was no danger of the cited trees falling over into the 

quarry. Mr. Peterson is an experienced logger. (Tr. 231). 

Mr. Voris Probst, a former plant manager for Boise Cascade and 

experienced logger, testified that maple trees do not come down 

easily. (Tr. 393). 

I find that the Secretary did not establish that the trees 

created a fall-of-material hazard to employees working in the 

quarry. I credit the testimony of Peterson and Probst in this 

regard. Exhibit P-4, upon which the Secretary puts significant 

weight, is not persuasive. There was simply no proof that there 

418 
was a risk that the cited trees would fall into the quarry. 

Accordingly, this citation is vacated. 

11. Citation No. 4126431 alleges a violation of 30 C.F.R. 

§ 41.20, dealing with legal identity reports. At the hearing, 

the Secretary agreed to vacate this citation. (Tr. 75). 

12. 

§ 50.30, 

hearing, 

for this 

Citation No. 4126432 alleges a violation of 30 c.F.R. 

dealing with quarterly employment reports. At the 

Tide Creek agreed to pay the penalty proposed by MSHA 

citation. (Tr. 6). 

13. Citation No. 4340642 alleges a violation of section 

103(a) of the Mine Act. At the hearing, the Secretary agreed to 

vacate this citation. (Tr. 6). 

II. CIVIL PENALTY ASSESSMENTS 

Based on the criteria in section llO(i) of the Mine Act, 30 

u.s.c. § 820(i), I assess the following civil penalties as discussed above: 

Citation 

WEST 94-369-M 

4126431 

4126437 

4126439 

4339852 

4339821 

4339822 

4339826 

4339847 

4339853 

4339855 

4339856 

4339858 

WEST 94-379-M 

4126433 

4339849 

4340482 

WEST 94-492-M 

4339844 

4340483 

4340484 

Nos. 30 C.F.R. § 

41. 20 

56.14132 (b) (1) 

56.14100(a) 

56.16005 

56.14107(a) 

56.12021 

56.18002(b) 

56.11002 

56.12032 

56.14107(a) 

56.14107(a) 

56.14107(a) 

56.1000 

56.11002 

56.16005 

56.4104(a) 

56.12032 

56.12018 

419 

Assessed 

Penalty 

vacated 

$100.00 

vacated 

20.00 

20.00 

20.00 

20.00 

vacated 

20.00 

20.00 

20.00 

vacated 

vacated 

vacated 

20.00 

vacated 

20.00 

20.00 
WEST 94-493-M 

4126434 

4126436 

4126440 

4339823 

4339824 

4339846 

4339851 

4339854 

4339857 

WEST 94-638-M 

4339845 

4339859 

4339860 

4340481 

WEST 95-48-M I 

4126432 

WEST 95-275-M 

4340642 

56.3131 

56.9300(a) 

56.4101 

56.12025 

56.12028 

56.11002 

56.14107(a) 

56.12013 

56.20003(a) 

56.4201(a) (1) 

56.14107(a) 

56.14107(a) 

56.14131(a) 

50.30 

§103(a) 

Total Penalty 

III. ORDER 

vacated 

20.00 

20.00 

vacated 

50.00 

vacated 

20.00 

vacated 

5.00 

$ 5.00 

50.00 

50.00 

20.00 

100.00 

vacated 

$640.00 

Accordingly, the citations listed above are VACATED or 

AFFIRMED as indicated, and Tide Creek Rock, Inc. is ORDERED TO 

PAY the Secretary of Labor the sum of $640.00 within 30 days of 

the date of this decision. Any amount previously paid for the 

settled citation should be credited a ainst this amoun 

Richard w. Manning 

Administrative Law Judge 

420 
Distribution: 

Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212 

(Certified Mail) 

Paul A. Belanger, Conference and Litigation Representative, Mine 

Safety & Health Administration, 3333 Vacavalley Parkway, #600, 

Vacaville, CA 95688 (Regular Mail) 

Agnes M. Peterson, Esq, TIDE CREEK ROCK, INC., 33625 Tide Creek 

Road, Deer Island, OR 97054 (Certified Mail) 

RWM 

421 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 7 1996. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v . 

LAC BULLFROG INCORPORATED, 

Respondent 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

LORENZO CEBALLOS, Employed by 

LAC BULLFROG INCORPORATED, 

Respondent 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

TIMOTHY HARTER, Employed by, 

LAC BULLFROG INCORPORATED, 

Respondent 

422 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 94-407-M 

A. C. No . 26-02184-05516 

Bullfrog Mine Underground 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 95-320-M 

A. C. No. 26-02184-05524 A 

Bullf~g Mine Underground 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 95-321-M 

A. C. No . 26 · 02184-05525 A 

Bullfrog Mine Underground 
Appearances: 

Before: 

DECISION 

Jeanne M. Colby, Esq., Office of the .Solicitor, 

U.S. Department of Labor, San Francisco, 

California, for Petitioner; 

Charles W. Newcom, Esq., and Andrew W. Volin, 

Esq., Sherman & Howard L.L.C., Denver, Colorado, 

for Respondents. 

Judge Hodgdon 

These consolidated cases are before me on petitions for 

assessment of civil penalty filed by the Secretary of Labor, 

acting through his Mine Safety and Health Administration (MSHA) , 

against LAC Bullfrog, Inc., Lorenzo Ceballos and Timothy Harter 

pursuant to sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815 and 820. The petitions 

allege that the company violated section 57.6375 of the 

Secretary's mandatory health and safety standards, 30 C.F.R. 

§ 57.6375, and that Messrs. Ceballos and Harter, as agents of the 

company, knowingly authorized, ordered or carried out the 

violation. The Secretary seeks penalties of $1,500.00 against 

the company and $1,000.00 and $1,200.00 against Ceballos and 

Harter, respectively. For the reasons set forth below, I find 

that the company violated the regulation, that Ceballos, but not 

Harter, knowingly carried out the violation and I assess 

penalties of $1,500.00 and $500.00, respectively. 

A hearing was held on November 1 and 2, 1995, in Henderson, 

Nevada. In addition, the parties filed post-hearing briefs in 

these matters. 

FACTUAL SETTING 

The Bullfrog gold mine in Beatty, Nevada, has both an open 

pit and an underground section. The underground section consists 

of a series of horizontal passages, called "drifts," running off 

of a main decline, which follow the gold vein. The drifts are 

identified and distinguished by their elevation in meters and 

whether they go north or south. 

On December 7, 1993, a ground fall of about 40 to SO tons 

occurred in the 906 South Drift. It was preceded by a blast in 

42 3 
the 918 North Drift . The blast occurred in a portion of the 918 

North Drift which is directly over the area in the 906 South 

Drift where the ground fall occurred . 

Jack Bingham, the General Manager of the mine, Timothy 

Harter, the General Mine Foreman, and Lorenzo Ceballos, a 

Production Supervisor, were at the end of the 906 South Dr~ft 

when the ground fell from the roof. They discovered the fallen 

ground when they were backing their vehicle along the drift and 

encountered dust and then the ground fall. The men had to leave 

their vehicle and climb over the fallen ground to get out of the 

drift. 

MSHA Inspector Henry J. Mall was assigned to investigate the 

incident. As a result of his investigation, he issued Citation 

No. 4130929, pursuant to section 104(d) (1) of the Act, 30 U.S.C. 

§ 814(d) (1), on December 8. It alleged a violation of section 

57 . 6375 of the Regulations because 

at approximately 845 [sic] AM 12-7- 93 a heading in 918 

North was blasted without ample warning given to the 

(3 ) employees who had entered 906 South area which was 

directly under the 918 North heading where the blast 

was to occur. The distance between the areas is 

approximately 8 meters (25 ft) . When the blast 

occur[r]ed approximately 40 to 50 tons of material 

above the anchorage zone supported with 6 ft roof bolts 

came down in the 906 South travel way. The (3 ) 

employees in 906 South were approximately 300 meters 

(984 ft) from where the fall of ground occur[r]ed. The 

company has a written policy dated 12 - 3-92 - 3-23 - 92 

[sic] on clearing the areas effected [sic] from [sic] 

t he blasting that is to take place. On this date 12-7-

93 the company failed to follow a safe practice of 

warning their [sic] employees of the blast in 918 North 

and did not follow company written policy. This is an 

unwarrantable failure. 

(Govt. Ex. H.) 

4 24 
Special Investigator Pennis J. Palmer conducted an 

investigation of the incident during April 1994 for the purpose 

of determining if the violation had been knowingly ~ommitted by 

any agents of the company. As a result of his investigation, the 

Secretary filed civil penalty petitions against Ceballos and 

:Harter under section 110 (c) of the Act, 30 U.S. C. § 820 (cJ·. 1 

PXNDXHGS OF PACT AND CONCLVSIONS OF LAW 

Section 57.6375 is entitled Loading and blast site 

restrictions and requires that: "Ample warning shall be given 

before the blasts are fired. All persons shall be cleared and 

removed from areas endangered by the blast. Clear access to 

exits shall be provided for personnel firing the rounds." 2 

The issue in this case is whether the three men were in an 

area endangered by the blast from which they should have been 

cleared and removed. I conclude that the 906 South was an area 

endangered by the blast and that the men should have been cleared 

or removed from · the drift prior to the blast. 

Was the 906 South an area endangered by the blast? 

The Commission has not had occasion to address the issue of 

what constitutes an area endangered by the blast with regard to 

this regulation. However, it has discussed section 77.1303(h), 

30 C.F.R. § 77.1303(h), having to do with surface coal mining, 

1 Section llO (c) provides, in pertinent part, that: 

"Whenever a corporate operator violates a mandatory he.alth or 

safety standard ... any director, officer, or agent of such 

corporation who knowingly authorized, ordered, or carried out 

such violation . . . shall be subject to the same civil penalties 

" 

2 This regulation was effective until December 31, 1993. It 

has since been replaced by section 57.6306(f), 30 C.F.R. 

§ 57.6306(£). 

425 
which has a similar requirement. 3 With regard to that 

regulation, the Commission held that: 

To establish a violation of the standard, based on a 

failure to clear and remove all persons from the 

blasting area, the Secretary must prove that an 

operator has failed to clear and remove all persons 

from the "blasting area," as that term is defined in 

section 77.2(f). This requires the Secretary to 

establish the factors that a reasonably prudent person 

familiar with mine blasting and the protective purposes 

of the standard would have considered in making a 

determination under all of the circumstances posed by 

the blasting issue. 

Hobet Mining & Construction Co., 9 FMSHRC 200, 202 (February 

1987 ). The Commission went on to say that "(a)n operator's preshot determination of what constitutes a blasting area is based 

not only upon the results of prior shots, but also depends ·Upon a 

number of variables affecting the upcoming shot." Id. 

Although section 77.1303(h) uses the term "blasting area" 

and section 57.6375 uses "area endangered by the blast," they 

mean essentially the same thing. Thus, it ~ould follow that if 

the company had not included the 906 South in the area endangered 

by the blast in the 918 North, the "reasonably prudent person" 

test would be applied to determine whether it should have been 

included. However, it is not necessary to go through the 

requirements of the test in this case because it is undisputed 

that it was the mine's practice to clear the level above and the 

level below the level being blasted. 

Since the 906 South is the level below the 918 North and 

since two miners were, in fact, cleared from that area before the 

blast, the company obviously had determined that it was an area 

endangered by the blast. Therefore, the Respondents' argument, 

3 Section 77. 1303(h) provides that: "Ample warning shall be 

given before blasts are fired. All persons shall be cleared and 

removed from the blasting area unless suitable blasting shelters 

are provided to protect men endangered by concussion or f lyrock 

from blasting." 

426 
in their brief, that the 906 South was not an area endangered by 

the blast under the "reasonably prudent person" test, is 

inapposite. The company is bound by its pre-shot determination. 

Were the miners in the endangered area at the time of the blast? 

Having determined that the 906 South was an area endtl!lgered 

by the blast, the next issue is whether Bingham, Harter and 

Ceballos were in the endangered area at the time of the blast. 

They argue that they did not enter the 906 South until sometime 

after the blast in the 918 North. On the other hand, the 

Secretary submits that the men were at the end of the 906 South 

when the blast occurred. Finding the Respondents' statements 

made at the time of the incident more credible than the testimony 

at the hearing, I determine that the men were at the end of the 

906 South at the time of the blast. 

Inspector Mall arrived at the mine on the afternoon of the 

incident and began his investigation. Nevada State Inspector 

Edward M. Tomany· arri ved to investigate the incident the next 

day. On December 8, they interviewed several o; the witnesses 

together. 

According to their notes taken at the time, Louis 

Schlichting, who did not testify at the hearing, told them that 

he was the assistant foreman in charge of the blasts in the 918 

North and South. He f~rther told them that he cleared two 

employees out of the 906 South when getting ready to blast the 

918 North, but that he did not barricade the 906 South or do 

anything to prevent anyone from entering it during the blast . 

Finally, he told them that he assumed that the 906 South was 

clear when he blasted and that he would not have blasted the 918 

North if he had known that anyone was in the 906 South. 

According to their notes and testimony at the hearing, 

Lorenzo Ceballos told them that he knew that both the 918 North 

and South were going to be blasted and that while on the decline 

between the 918 and the 906 he heard a blast which he assumed was 

the 918 North. Additionally, he told them that the three 

supervisors were at the end of the 906 when the 918 North was 

blasted. Inspector Mall testified at the hearing that Ceballos 

later told him that the blast he heard was the first blast 

427 
(apparently the 918 South) and that the second blast occurred 

while he was in the 906. 

Tim Harter told the inspectors that he was not aware that 

the 918 North was going to be shot. There is no indication that 

either inspector asked him where he was when the blast and the 

ground fall occurred. However, other employees of the mi~e gave 

the inspectors the impression that the blast and the ground fall 

had happened while the supervisors were in the 906 South. 

Inspector Mall concluded that the blast heard on the decline 

must have been the 918 South and that the 918 North blast 

occurred while the supervisors were at the end of the 906 South. 

Consequently he wrote the citation in question. On receiving the 

citation and at the close-out conference, no one from the company 

suggested to the inspector that he had his facts wrong. 

Inspector Tomany apparently came to the same conclusion as 

Inspector Mall.,. His notes state that he notified his boss that 

"3 employees, J. Bingham, T. Harter, L. Ceballos were at the face 

of the 906 s when the 918 north blast dropped ground to obstruct 

exit of the 906 south.n (Govt. Ex. Vat 5.) 

It appears that no one talked with Bingham during the 

investigation and he evidently was not present at the close-out 

conference. However, Special Investigator Palmer interviewed him 

in April 1994. Palmer testified, and his notes indicate, that 

Bingham, who was no longer working for the company, told him that 

he felt the second blast while backing out of the drift and that 

they later came across dust and the ground fall. 

Palmer also interviewed Ceballos and Harter. By this time, 

Ceballos' story had changed somewhat. He said that the blast in 

the 918 South had to have gone off first; that the bl~st the 

supervisors heard while on the decline was in the 918 North. He 

stated that the 918 South is a long drift and the 918 North a 

shorter drift and that Schlichting told him in a discussion after 

Mall's investigation that he had set off the 918 South first 

because it would be dangerous to light the fuses in any other 

order. 

428 
Harter told Palmer that he assumed that the blast he heard 

on the decline was the 918 South because that was the only blast 

that he expected. He claimed that he did not find out that there 

was a second blast until after he got out of the mine. He 

further averred that he would not have gone into the 906, or 

allowed anyone else to go into the 906, if he had known a blast 

was going to be directly above it. 

In December 1994, Ceballos and Harter were informed that 

MSHA intended to seek civil penalties against them under section 

llO {c) of the Act. On December 21, they sent a letter to MSHA 

requesting a conference on the matter and setting out their 

position. In the letter, they summed up their position as 

follows: 

[W]e believe that MSHA may have the mistaken 

impressions that three employees entered the 906 south 

prior to the 918 north blast (the final blast) , that 

the blast caused the ground fall, and that the three 

employees were non-supervisory. None of these 

impressions are [sic] accurate. Instead, as the facts 

recited above show, Ceballos knew there would be 

blasting in the 918 north, the three of them did not 

enter the 906 south until after the 918 blast took 

place, the ground fall did not occur as part of the 

blast, but took place approximately 15 to 20 minutes 

later . . . 

{Govt. Ex. G at 2. ) 

By the time of the hearing, the Respondents had added more 

details to their version of the incident. For the first time, 

they claimed that the blast in the 918 South was a "slab" round 

while the blast in the 918 North was a "face" round. The 

significance of this is that a slab round uses less explosive 

than does a face round and is, therefore, not as loud. Thus, at 

the hearing, Ceballos testified, "I knew there was two blasts 

that were going to go off, but I only expected to hear one." 

(Tr. 335. ) 

With regard to what he initially told the inspectors, 

Ceballos testified as follows: 

429 
Q. Did you tell Inspector Mall or Inspector Tomany 

that you heard a blast while you were on the decline on 

December 7? 

A. Yes. 

Q. Did you tell them whether or not you thought tha~ 

blast was from the 918 North or the 918 South? 

A. I don't recall exactly if I told them it was. 

Q. Did you tell Inspectors Mall or Tomany that you 

heard the blast of the 918 North while you were in the 

906 South? 

A. No, I didn't. 

Q. Do you recall whether or not Inspector Mall accused 

you of mistaking the blast that you heard on the 

decline for the 918 South blast as opposed to the 918 

North blast? 

A. I know there was a lot of confusion in there when 

they were asking a lot of questions. I was really 

confused in that open discussion. 

(Tr. 342.) 

Obviously, when an inspector arrives to investigate an 

accident after it has happened he must rely on what the witnesses 

tell him and what physical evidence is available. In this case, 

Inspector Mall did just that and concluded that a violation of 

section 57.6375 had occurred. While the company argued with him 

abo~t the citation after he gave it to them, and dur~ng the 

close-out conference, no one asserted that he had the facts 

wrong. 

Now the company alleges that is exactly what happened. 

However, I do not credit the revised version for the following 

reasons. The statements given by witnesses at the time closest 

to the incident, when the details are freshest in their minds, . 

and before they have had the opportunity to formulate statements 

favorable to their own, or the company's, cause, are more 

430 
reliable than the witnesses' later statements. 4 Further, the 

Respondents did not raise this new scenario when given the 

citation or at the close-out conference. Nor did they question 

the inspectors facts. Finally, Jack Bingham, General Manager of 

the mine, unequivocally stated that he felt the second blast 

while at the end of the 906 South. 

Respondents have attacked Bingham's credibility on the 

grounds that his statement is hearsay, that his ability to 

distinguish sensations is questionable, apparently because he was 

not wearing his hearing aid underground, and that the slab round 

in the 918 South was too small to be heard. While it is true 

that Bingham's statement is hearsay, I credit it because at the 

time that it was made, it was an admission, or, at a minimum, a 

declaration against interest, and because Respondents had 

subpoenaed Bingham to testify at the hearing, but announced at 

the beginning of the second day that they did not intend to call 

him. Since they had the opportunity to rebut or explain the 

hearsay statement by the author of the statement, but chose not 

to, they cannot now argue that the statement is unreliable. 

With regard to Bingham's ability to distinguish sensations, 

I note that he stated that he felt the blast, not that he heard 

it. Furthermore, while there is no evidence concerning the 

extent of his ability to hear, other than that he wore a hearing 

aid, there is evidence that he, Ceballos and Harter held a 

discussion in the 906 so that he must not have been totally deaf. 

Finally, there is nothing in the record to indicate that the 

slab round in question could not be heard. In fact, Harter 

stated that he was expecting a slab round to be used in the 918 

South and when he heard the blast on the decline, assumed that 

was what he had heard. 

I find 

South at the 

ground fall. 

that Bingham, Harter and Ceballos were in the 906 

time of the blast in the 918 North and the resulting 

Since the company had determined that this was an 

4 At the hearing, Ceballos only specifically denied telling 

the inspector that he heard the 918 North blast while in the 906 

South. He either could not "recall" making other statements or 

was "confused." 

431 
endangered area for such a blast, I conclude that the company 

violated section 57.6375 by not clearing them from the area 

before blasting . 

Significant and Substant ial 

The Inspector found this violation to be "signif ican~ and 

s ubstantial." A "significant and substantial" (S&S) violation is 

described in section 104(d} (1) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the 

cause and effect of a coal or other mine safety or health 

hazard." A violation is properly designated S&S "if, based upon 

the particular facts surrounding that violation, t here exists a 

reasonable likelihood that the hazard contributed to will result 

in an injury or illness of a reasonably serious nature." Cement 

Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission set· out four criteria that have to be met for a 

violation to be S&S . See also Buck Creek Coal, Inc. v. FMSHRC, 

52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. 

Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin 

Power, Inc . , 9 FMSHRC 2015, 2021 (December 1987) (approving 

Mathies criteria) . Evaluation of the criteria is made in terms 

of "continued normal mining operations." U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a 

particular violation is significant and substantial must be based 

on the particular facts surrounding the violation. Texasgulf, 

Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9 

FMSHRC 1007 (December 1987) . 

Applying the Mathies criteria, I have already found (1), 

that the company violated a mandatory safety standard. I further 

find: (2) That this violation contributed to a measur.e of danger 

to safety, i.e. blasting is inherently dangerous, those within an 

area endangered by a blast could be blown up, hit by flyrock, or, 

as occurred in this case, caught by a ground fall; (3) That there 

is a reasonable likelihood that a ground fall would result in an 

injury; and (4) That there is a reasonable likelihood that the 

injury would be reasonably serious in nature, involving 

significant cuts and bruises, broken bones or death. 

432 
Vnwarrant&ble Failure 

The inspector found this violation to be the result of an 

"unwarrantable failure" on the company's part. The Commission 

has held that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence by a mine operator in 

relation to a violation of the Act. Emery Mining Corp., 9 FMSHRC 

1997, 2004 (December 1987 ) ; Youghiogheny & Ohio Coal Co., 9 

FMSHRC 2007, 2010 (December 1987 ) . "Unwarrantable failure is 

characterized by such conduct as 'reckless disregard,' 

'intentional misconduct,' 'indifference' or a 'serious lack of 

reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal 

Corp. 13 FMSHRC 189, 193-94 (February 1991) . " Wyoming Fuel Co., 

16 FMSHRC 1618, 1627 (August 1994). 

Ceballos and Harter both stated that they would not have 

gone into the 906 South if they had known that there was going to 

be a blast in the 918 North. Thus, they were clearly aware of 

the danger involved. Ceballos thought that it was safe to go 

into the 906 because he assumed that the blast he heard on the 

decline was the 918 North blast. 

There is no evidence of intentional misconduct in this case. 

I believe the Respondents when they state that they would not 

have gone into the 906 if they had known the 918 was going to be 

blasted. However, that does not remove this case from the 

unwarrantable failure category. 

Ceballos, a miner with at least 18 years experience, the 

person normally in charge of blasting operations, knew that plans 

had changed from blasting the 918 South to blasting the 918 North 

and South. He knew this because Schlichting told him so just 

prior to the men going down the decline past the 918s to the 906. 

He heard one tlast and concluded that the 906 was safe. I find 

that this conclusion was not a reasonable one. Cf. Wyoming Fue1 

Co. at 1628-29. 

A supervisor in his position and with his experience should 

have done more . Knowing that there were going to be two blasts, 

and hearing only one, made it incumbent on him to verify that 

both blasts had been performed before entering the 906. While 

failure to do that does not rise to "intentional misconduct" or 

even "reckless disregard," it is more than ordinary negligence. 

4 33 
I conclude that the failure to confirm that the 918 North had 

been blasted before entering the 906 constitutes "indifference" 

or a "serious lack of reasonable care" and that, therefore, the· 

violation resulted from the company's unwarrantable failure. 

Section llQ(c) yiolations 

The Secretary has alleged that Ceballos and Harter 

"knowingly" violated section 57.6375 and are personally liable 

under section llO(c) of the Act. 5 Based on the evidence, I find 

that Ceballos "knowingly" carried out the violation, but Harter 

did not. 

The Commission set out the test for determining whether a 

corporate agent has acted "knowingly" in Kenny Richardson, 3 

FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 623 (6th Cir. 1982 ), 

cert. denied, 461 U.S. 928 (1983), when it stated: "If a person 

in a position to protect safety and health fails to act on the 

basis of info~ation that gives him knowledge or reason to know 

of the existence of a violative condition, he has acted knowingly 

and in a manner contrary to the remedial nature of the statute ." 

The Commission has further held, however, that to violate section 

llO(c), the corporate agent's conduct must be "aggravated," i.e. 

it must involve more than ordinary negligence. Wyoming Fuel Co., 

supra at 1630; BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 

(August 1992); Emery Mining Corp., supra at 2003-04. 

In Roy Glenn, 6 FMSHRC 1583, 1586 (July 1984), the 

Commission expanded the test to cover a situation where the 

violation does not exist at the time of the agent's failure to 

act, but occurs after the failure, when it said: 

Accordingly, we hold that a corporate agent in a 

position to proter.t employee safety and health has 

acted 'knowingly', in violation of section llO(c) when, 

based upon facts available to him, he either knew or 

had reason to know that a violative condition or 

conduct would occur, but he failed to take appropriate 

preventative steps. 

That describes the situation in this case. 

5 See n.1, supra, for the provisions of this section. 

434 
As a supervisor, Ceballos was in a position to protect 

employee safety by not taking the tour into the 906 South until 

after the blast in the 918 North. He knew, based on what 

Schlichting told him, that both sections of the 918 were going to 

be blasted. He knew that if they went in the 906 before the 918 

North blast that he would be in an area endangered by the blast. 

Finally, he failed to take appropriate preventative steps;· that 

is to insure that the 918 North blast had occurred before 

entering the 906 South. 

As set out above, this was aggravated conduct involving more 

than ordinary negligence. Accordingly, I conclude that Lorenzo 

Ceballos knowingly carried out the violation of section 57.6375 

and is, therefore, personally liable under section llO (c ) . 

The same, however, cannot be said about Harter. He knew 

only that the 918 South was to be blasted. No one knew that both 

the North and South were going to be blasted until Schlichting 

informed Ceball~s of that during the tour. While Harter was 

present when Schlichting told Ceballos of the change, neither 

Schlichting nor Ceballos could say whether Harter heard the 

conversation. Both doubted it. Ceballos said that Schlichting 

spoke directly into his ear because there was a fan in the area. 

Ceballos testified that when they passed the 918 on the 

decline he informed Harter that they could not go into that area 

because they were blasting. Harter maintained that he did not 

hear Schlichting tell Ceballos that the 918 North was also going 

to be blasted and that he did not know that the 918 North was 

blasted until after he got out of the mine. 

Since there is no evidence to contradict it, I credit 

Harter's claim that he thought 0nly the 918 South was to be 

blasted and that when he heard the blast he thought it _was safe 

to enter the 906 South. Ceballos' statement about not being able 

to go into "that area" because they were blasting was not 

specific enough to put Harter on notice that the situation, as he 

understood it, had changed. Consequently, I conclude that 

Timothy Harter did not knowingly carry out the violation of 

section 57.6375 and is not personally liable under section 

110 (c) . 

4 35 
CIVIL PENALTY ASSESSMENT 

The Secretary has proposed civil penalties of $1,500.00 for 

the company and $1,000.00 for Ceballos for this violation. 

However, it is the judge's independent responsibility to 

determine the appropriate amount of a penalty, in accordauce with 

the six criteria set out in section llO (i) of the Act, 30 ti.s.c. 

§ 820(i). Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 

(7th Cir. 1984). 

In connection with the six criteria, I note from the 

pleadings that the Bullfrog mine is a medium size gold mine and 

that LAC Bullfrog, Inc . , is a medium size company. The violation 

history does not indicate an excessive number of violations. 

There is no evidence that payment of a civil penalty will 

adversely affect the company's ability to remain in business. On 

the other hand, the gravity of the violation is serious and 

involved a high degree of negligence. Taking all of this into 

consideration, I conclude that the penalty proposed by the 

Secretary is appropriate . 

Obviously, except for the gravity of the violation, none of 

the penalty criteria apply to an individual. However, taking 

into consideration the gravity of the violation and Mr. Ceballos' 

position with the company, I find that the penalty proposed by 

the Secretary is somewhat high. I conclude that a penalty of 

$500.00 is appropriate in this case . 

ORPER 

The civil penalty petition against Timothy Harter is 

DISMISSED. Citation No. 4130929 issued to LAC Bullfrog, Inc. and 

the civil penalty petition alleging that Lorenzo Ceballos 

knowingly carried out the violation in the citation a~e AFFIRMED. 

Accordingly, LAC Bullfrog, Inc., or its successor, 6 and Lorenzo 

Ceballos are ORDERED TO PAY civil penalties of $1,500.00 and 

6 In a subsequent hearing involving this company, counsel 

for the Respondent advised that the mine was now owned by Barrick 

Bullfrog, Incorporated. 

436 
$500.00, respectively, within 30 days of this decision. On 

receipt of payment, these proceedings are DISMISSED. 

{~~ Admini strative Law Judge 

Distribution: 

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson St., Room 1110, San Francisco, CA 94105-

2999 (Certified Mail) 

Charles W. Newcom, Esq., Andrew W. Volin, Esq., Sherman & Howard 

L.L.C., 633 17th St . , Suite 3000, Denver, co 80202 (Certified 

Mail) 

/lt 

437 
PEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 9 \996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FREEMAN UNITED COAL MINING, 

. Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JAMES YANCIK, Employed by 

FREEMAN UNITED COAL MINING, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEAL MERRIFIELD, Employed by 

FREEMAN UNITED COAL MINING, 

Respondent 

438 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 94-3 

A.C. No. 11-00599-03883 

Mine: Orient No. 6 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 95-262 

A.C. No. 11-00599-03925-A 

Mine: Orient No. 6 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 95-269 

A.C. No. 11-00599-03926-A 

Mine: Orient No. 6 
Appearances: 

Before: 

DECISION 

Christine M. Kassak, Esq., Office of. the 

Solicitor, U.S. Department of Labor, Chicago, 

Illinois, for Petitioner; 

Richard R. Elledge, Esq., Gould & Ratner, Chicago, 

Illinois, for Respondent; 

Timothy M. Biddle, Esq., Crowell & Moring, 

Washington, D.C., for Respondent. 

Judge Fauver 

These civil penalty cases were brought under§§ lOS(d) and 

llO(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 At ~- The corporation and two of its 

supervisors, who are qualified engineers, are charged with 

failure to maintain an elevated walkway in good repair to prevent 

accidents and injuries to employees. The walkway collapsed and 

four men were severely injured. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, probative 

and reliable evidence establishes the Findings of Fact and 

further findings in the Discussion below: 

PINPIHGS OP PACT 

l. Freeman owns and operates Orient No. 6 Mine in 

Waltonville, Illinois, where it produces bituminous coal for 

sales in or substantially affecting interstate commerce . 

2. Freeman is a large coal mine operator, producing over 4 

million tons a year. Orient No. 6 is a large mine, producing 

over a million tons a year. 

3. In 1968 Freeman engaged Roberts and Schaefer Company, 

Engineers and Contractors, Chicago, Illinois, to design and build 

a preparation plant at Orient No. 6 Mine. 

4. The plant is 105 feet high, 100 feet long and 100 feet 

wide. It is a frame structure with steel columns and beams that 

provide a basis for installing and removing floors as needed for 

conveyor belts and other equipment used in the plant . 

4 39 
5. Because of of the unique properties of the coal at Orient 

No. 6 Mine, the atmosphere in the preparation plant is very 

corrosive to metal. This condition hastens the deterioration of 

steel columns, beams and other metal supports. 

6. Because of widespread corrosion and deterioration of 

steel members in the preparation plant, in 1984 Freeman built a 

new preparation plant adjacent to the old one. The old plant was 

abandoned as a preparation plant but kept as a building for 

certain functions. Walkways and conveyor belts run through the 

old plant to the new plant, and the plants are connected by pumps 

and motor controls. In addition, there is a large electric power 

station in the old plant. The areas of the old plant that are 

most frequently used are elevated walkways, conveyor belts, the 

electrical power station, and a drainage system. 

7. Once metal deterioration begins, it continues to worsen 

until rust disintegrates the metal. Steel beams, columns, and 

metal supports \in the old plant continued to deteriorate after 

the new plant w~s built. In 1987 a conveyor belt collapsed in 

the old plant because of deterioration of steel members. 

8. The collapse of the conveyor belt in 1987 shut down 

production and caused Freeman to recognize that it needed to 

rehabilitate or replace weakened and deteriorated steel members 

in the old plant. Rehabilitation work moved slowly. In 1989 

Freeman engaged Roberts and Schaefer to evaluate the structural 

condition of the old preparation plant and to make 

recommendations for its rehabilitation. R & S was chosen because 

it had designed the old preparation plant, built it, and knew the 

loads the members could carry and had expertise in diagnosing 

defective steel members and how to repair them. It also had 

built the new preparation plant. 

9. After inspecting the old preparation plant, R & S 

submitted a report to Freeman on November 30, 1989, prepared by 

Engineer Paul G. Meifert. The report is entitled uReport to 

Determine Structural Integrity of Existing Coal Preparation Plant 

for Freeman United Coal Company Orient No. 6 Mine." Govt. 

Exh. 3. 

10. The R & S report found many structural hazards. It 

stated that part of the floor at elevation 454 uis beginning to 

44 0 
collapse and has been roped off above and below per [the R & s 

engineer's] request. Obviously this area needs attention." An 

abandoned coal conveyor above elevation 468 was "on _ the verge of 

collapse . . . (which would be] life threatening" (p.4). 

Vertical bracing was "virtually nonexistent due to deterioration 

and to field removal for access. Bracing should be brought back 

to original as much as possible .... " p.4. The report called 

for "immediate attention" to "beams and columns where holes exist 

or can be punched out with a hammer." p.3. It also stated that 

"many beams and columns were tested by hammer blows to determine 

the extent of rust and deterioration" and that, "although many 

sections were reduced due to rust scale. . . ., in the majority of 

cases, enough material remains to carry reduced loads." Emphasis 

added; p.2. To reduce the loads, heavy equipment and other 

materials were to be removed from a number of floors. 

11. The R & S report included the following cautionary 

notice: "Although the structure appears to be sound in general 

these findings '-,are based only upon a visual inspection. No load 

tests or calculations were performed to determine actual 

stresses. Extent of deterioration and actual safety of structure 

cannot be determined without extensive measuring, testing, and 

calculation" (p.5). 

June 1993 Collapse of Elevated Walkway 

12. On June 8, 1993, Mr. Steve Stanley, the surface manager 

of the mine, led a crew of two supervisors and two miners to work 

on a coal belt on the first floor (elevation 454 on the R & s 

drawing). To gain access to the belt, the men were standing on 

an elevated walkway parallel to the belt, 17 feet above a 

concrete floor. Mr. Stanley left to get a bolt. Shortly after he 

left, the walkway suddenly collapsed and the four men fell to the 

concrete floor amidst jagged and broken steel and concrete 

debris. They were severely injured. 

13. MSHA began an investigation on June 9. On June 10, 

Engineers Terence Taylor and Dan Mazzei, from MSHA's Safety and 

Health Technology Center, inspected the fallen walkway as well as 

the general plant. 

14. Mr . Taylor is a professional engineer and has both a 

bachelor's and a master's degree in civil engineering with 

441 
specialization in structural engineering. He is a member of the 

American Society of Civil Engineers. Mr. Taylor's supervisor is 

Dan Mazzei, who has a bachelor's degree in civil e~gineering and 

a master's degree with an emphasis on water resources. 

15. The Tech Support team observed widespread deterioration 

of steel members with some remedial work done to some of the 

columns in the basement. They did not inspect every steel 

member, but they looked at the supports for the walkway and found 

widespread corrosion and deterioration of structural members. At 

the accident site they observed that members that were still 

dangling or touching the ground were severely corroded. Much of 

the cross section was missing on some of the dangling members. 

The failed members were badly deteriorated and one failed beam 

was almost totally deteriorated. 

16. The area where the collapse occurred is delineated by 

column lines E and F in the north-south direction and 4 and 5 in 

the east-west direction of the original plant drawings. These 

four columns are the corners of a 5 by 20 foot bay. The slab 

that collapsed was supported at its north and south ends by two 

wide flange beams, along its east edge by a wide flange beam, and 

its west edge by six-inch wide channel sections. The center of 

the slab was supported by a wide flange beam and the quarter 

points by light beams. The three intermittent support beams had 

fallen along with the west and east edge supports. The north and 

south beams were still in place. The west or east edge support 

was the first support to fail. Most likely the beam on the east 

edge collapsed first, transferring the load to the west edge, 

shearing the channel sections and bending down the three 

intermittent beams . The east edge beam was almost completely 

deteriorated with many holes and extensive corrosion. There was 

extensive rust on the 20 foot long wide flange beam supporting 

the edge of the slab. The bottom flange and parts of the web 

were deteriorated, reducing the load-carrying capabilities of the 

section. In the collapsed bay, the connection between the east 

edge beam and the column was still intact on the column, 

indicating that the beam sheared right through its cross section. 

17. Along the same column line that failed, in the bay to 

the south of the area of collapse, Mr. Taylor and Mr. Mazzei saw 

a steel member that was identical in section and dimensions to 

the beam that failed on June 8, 1993. This member was still in 

44 2 
place, but deterioration holes could be seen plainly. This 

member is the subject of Govt. Exh. No. 6 and was the support for 

the walkway farther south of the point of collapse. The unsafe 

condition of this beam was similar to that of the beam that 

failed on June 8. 

18. The failure on June 8 was caused by excessive corrosion 

reducing the section-carrying capacity at the edge supports where 

the shear load was the highest and where it ultimately failed. 

19. Before the accident on June 8, the deteriorated steel 

members supporting the walkway section that collapsed were 

observable from the floor below, and were visibly in bad repair. 

20. Some beams under the walkway in other bays were also 

visibly in bad repair. The walkway presented numerous hazards of 

steel corrosion and deterioration. 

21. A numb~r of beams had holes in them and were rusted and 

twisted and deteriorated. MSHA inspector Charles Conaughty 

observed instances where a hammer struck against a structural 

member traveled through the member. 

22. Government Exhibits 4,5, and 11 show the area where the 

June 8 accident occurred. Exhibit 4 shows the beam that failed 

under the east side of the walkway. Exhibit 5 shows part of the 

material that was still hanging from the collapsed walkway. 

Exhibit 11 shows deteriorated vertical bracing that was at the 

end of the row of columns in the same row in which the collapse 

occurred. 

23. Government Exhibits 6, 7, 8, 9 and 10 show other areas 

of deterioration adjacent to or near the accident site. The beam 

shown in Exhibit 6 was in the adjacent or a nearby bay just south 

of the area that fell, and was in the same column line · (column 

line 4) in which the accident occurred. The steel members that 

failed would have been exposed to the same corrosive elements as 

the beam depicted in Exhibit 6. 

24. In 1989, when Freeman was removing the floor area 

described in the R & S report (defined by column lines A to F and 

4 and 5), Freeman personnel were within close visual range of the 

steel members of the walkway section that failed on June 8, 1993. 

443 
25. As of the date of the collapse, a number of areas in the 

old plant still needed rehabilitation and repair work, including 

the section that collapsed. 

26. At the time of the collapse, Mr. Thomas J. Austin had 

been the safety director of the mine since 1987. There were 

three employees in the safety department. Mr. Austin's immediate 

supervisor was Respondent Neal Merrifield. Mr. Austin is not an 

engineer and has never taken any engineering courses. 

27. Prior to the accident, Mr . Austin never received any 

instructions to have his safety employees look for holes in beams 

and columns or perform tests with a hammer on any of the beams or 

columns that supported walkways. Nor did he see or discuss the R 

& S report before the accident. He first learned about the R & S 

report during the investigation following the walkway collapse. 

28. In 1989, Mr. Steve Stanley was the assistant mine 

manager of th~ Orient No. 6 mine. Mr. Stanley became surface 

manager of the ·mine in 1991. He is not an engineer, but he was 

called upon to direct rehabilitation work and repairs in the old 

plant. He made decisions on a day to day basis as to where to 

assign employees. Prior to the accident, no one directed Mr. 

Stanley to put more people to work in the old plant or to give 

any priority to checking beams and other metal supports that held 

up the walkways. Nor did anyone instruct Mr. Stanley to have 

employees look for holes in beams and columns or perform tests 

with a hammer on any beams or columns that supported walkways. 

29. Mr. Stanley had never seen and was not given a copy of 

the R & S report until after the accident. No one discussed the 

R & S report with Mr. Stanley until after the accident. 

30. On June 8, 1993, when Mr. Stanley d~ rected four 

employees to work on the conveyor belt by standing on· the 

walkway, he had no knowledge of the R & S report or the dangers 

observed in the report. 

Respondent James Yancik 

31. At all relevant times, Respondent James Yancik was 

manager of quality control and plant maintenance and the 

444 
preparation engineer. Mr. Yancik has a B.S. degree in mining 

engineering and is a member of the Society of Mining Engineering. 

One of his specialties is structural analysis. 

32. Mr. Yancik accompanied Engineer Paul Meifert of the R & 

S Company during Mr. Meifert's inspection of the old preparation 

plant in 1989. During their inspection they used three tools: a 

chipping hammer, a wire brush, and a hammer. They did not take 

core samples. They were visually looking at steel members and in 

some cases they would scale and test steel members. 

33. Mr. Meifert and Mr. Yancik observed a crack in a floor 

that was beginning to sag. Mr. Meifert identified the floor as 

dangerous and had it roped off. 

34. When part of the. floor at elevation 454 was removed, 

Mr. Yancik reviewed the work. During the time he was conducting 

inspections for Mr. Mullins, he remembered seeing several beams 

in a condition like that of the beam in Govt. Exh . No. 6. At the 

hearing he stated that some of these were possibly not repaired. 

35. Before accompanying Mr. Meifert, Mr. Yancik had 

personally inspected the old preparation plant. In 1987, when 

starting the initial rehabilitation program, Mr. Yancik spent 

eight hours a day there, five days a week, for several weeks. 

Mr. Yancik did not continue that frequency of inspections after 

the R & S report . During the period from the issuance of the R & 

S report (November 30, 1989 ) until the walkway collapse on June 

8, 1993, Mr. Yancik conducted inspections of the old plant "on a 

periodic basis" depending upon his "available time." His 

inspections were not frequent. 

36. Mr. Yancik read the R & S report several times and was 

very familiar with its contents. He received his COFJ of the R & 

s report from Mr. Mullins, vice president of operations. 

37. Before the accident, Mr. Yancik had seen holes in some 

beams like those that were shown on figures 7 and 9 in the R & S 

report but never directed anyone to repair or rehabilitate those 

beams. Mr. Yancik did not personally set priorities for the 

rehabilitation or repair of the old plant. 

44 5 
38. Mr. Yancik had "expertise in structural analysis." He 

agreed that when an engineer sees a corroded hole in a steel beam 

he views it as a potential hazard. 

Respondent Neal Merrifield 

39. At the time of the collapse in June 1993, Mr. Merrified 

was vice president of operations. He is a mining engineer. 

Prior to becoming vice president of operations, he had been the 

mine superintendent . As vice president of operations, his 

responsibilities included safety of the operations of the mine 

facilities. Mr. Yancik reported to Mr. Merrifield. 

40. Mr. Merrifield read the R & S report and, as an 

engineer, he understood it. After 1991, when he became vice 

president of operations, Mr. Merrifield set priorities for the 

rehabilitation work in the old plant. Mr. Merrifield approved 

the mine's budget and had responsibility for the budget for the 

old plant. Although he did not have final authority on the 

budget, Mr. Merrifield's budget recommendations were not normally 

overruled by his supervisor. 

41. The chief engineer of the mine reported to 

Mr. Merrifield. As supervisor of the engineering department, 

Mr. Merrifield approved the time spent on rehabilitation efforts. 

Along with other mine management and the corporate officers, 

Mr. Merrifield approved the allocation of dollars for those 

rehabilitation ·efforts. 

42. Mr. Merrifield approved the engineering department's 

decisions regarding priorities for the rehabilitation of the old 

plant. The engineering department reported to him regarding its 

recommendations for sequencing repair work and to get 

authorization to contract out rehabilitation work. When the 

engineering department wanted items beyond the budget, it would 

present its request to Mr. Merrifield and he would approve or 

disapprove it. 

43. Mr. Merrifield had input into the final report in 

response to Mr. Mullin's memorandum of January l, 1990 

(Govt. Exh. 26 ) including recommendations regarding replacement 

of bracing as recommended by the R & S report. Mr . Merrifield 

446 
attended a February 1, 1990, meeting with Mr. Mullins regarding 

corrective actions to be taken. 

44. Mr. Merrifield did not give Mr. Jim Hess, his successor 

as mine superintendent, a copy of the R & s report. 

Mr. Merrifield also did not give Mr. Steve Stanley, surface 

manager, a copy of the R & S report. Nor did he give a copy of 

the report to the mine safety director. 

45 . Mr. Mullins sent a copy of his letter regarding 

Mr. Yancik's job responsibilities (Govt. Exh. 18 ) t o Mr. 

Merrifield. A copy of an October 26, 1988, document regarding 

inspection of all belt supporting structures on an annual basis, 

to visually assess the competency of the structural members, went 

to Mr. Merrifield. Mr . Yancik sent a copy of a memorandum of May 

4, 1988 (Govt. Exh. 20 ) , to Mr. Merrifield. A copy of a 

memorandum of December 17, 1988 (Govt. Exh. 21), regarding areas 

that required immediate attention and reporting that the second 

floor was badly .deteriorated, went to Merrifield. 

46. Mr. Yancik sent copies of a memorandum of January 29, 

1990 (Govt. Exh. 22), regarding the R & S report, and a 

memorandum of August 13, 1990 (Govt. Exh. 23), regarding his 

inspection of the old plant, to Mr. Merrifield. Mr. Yancik also 

sent a memorandum of October 2, 1990 (Govt. Exh. 24 ) , in which he 

informed Mr. Merrifield that "no definitive plan has been 

formulated to correct the deficiencies" in the old plant. 

DISCQSSIQN WITH PVRTHER PINPINGS. CONCLUSIONS 

I 

RESPONDENTS' CHALLENGE OF THE REGULATION 

On June 8, 1993, a large section of an elevated walkway 

about s by 20 feet -- suddenly collapsed. The four miners 

standing on it fell 17 feet to a concrete floor amidst jagged and 

broken steel and concrete debris. They were severely injured. 

The Secretary alleges that Respondents violated 30 C.F .R § 

77.200, which provides: 

447 
Surface installations; general 

All mine structures, enclosures, or other facilities 

(including custom coal preparation) shall be maintained in 

good repair to prevent accidents and injuries to employees. 

Respondents challenge the regulation as being vague and 

ambiguous. 

A safety standard must provide adequate notice of the 

conduct it prohibits or requires, so that the mine operator or 

other affected persons may act accordingly. Southern Ohio Coal 

Company, 14 FMSHRC 978, 983 (1992 ) . The ''appropriate test is not 

whether the operator had explicit prior notice of a specific 

prohibition or requirement, but 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 (1990) . 

In U.S. Steel Mining Co., 14 FMSHRC 973, 974 (1992 ) , the 

Commission affirmed a decision in a § 77.200 case, noting the 

judge's holding that "the primary purpose of § 77.200 was to 

assure the physical and structural integrity of surface coal 

preparation facilities .... " I find that the regulation gives 

sufficient notice of the safety conduct required. The plain 

language of the regulation means that surf ace structures and 

facilities must be maintained in good repair relative to safety. 

In dictionary terms, "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). 

II 

RULING ON RESPONDENTS' MOTION TO DISMISS 

At the end of the Secretary's case, the individual 

Respondents moved to dismiss the§ llO (c ) charges. The judge 

440 
took the motion under advisement to be ruled upon in the final 

decision. Respondents then presented evidence on all matters. 

The Commission's Rules of Procedure, the Administrative 

Procedure Act and the Mine Act are silent as to the standards 

that apply to motions to dismiss at the close of an opposing 

party's case-in-chief. Accordingly, it is appropriate to consult 

the Federal Rules of Civil Procedure for guidance. Basic 

Refractories, 13 FMSHRC 2554, 2558 (1981). 

When a party moves for dismissal at the close of the 

opponent's case, the judge has discretion to take the motion 

under advisement. Fed. R. Civ. P. 52(c), "Judgment on Partial 

Findings," provides, in pertinent part: 

If during a trial without a jury a party has been fully 

heard with respect to an issue ... , the court may enter 

judgment as a matter of law against that party on any claim 

. or the court may decline to render any judgment until 

the close of all the evidence. 

The notes of the Advisory Committee on Rules to Fed. R. Civ. 

P. 52(c) specify that a court has discretion to enter no judgment 

prior to the close of all the evidence. Clifford Meek y. ESSROC 

Cox:poration, 15 FMSHRC 606, 615 (1993). Here, as there, the 

judge exercised that discretion. In making that determination, a 

court is within its prerogative to weigh all the evidence, 

resolve any conflicts in it, and decide for itself where the 

preponderance lies. Local Union 103 y. Indiana Construction 

Corp., 13 F.2d 253, 257 (7th Cir. 1994). 

In his dissent on other grounds in Mathies Coal Company, 

S FMSHRC 300, 307 {1983), Commissioner Lawson stated that "a 

trial court's reservation of ruling on a motion for involuntary 

dismissal [under 4l{b) Fed. R. Civ. P., the predecessor to 52(c)] 

is, in effect, a denial of the motion." The Commissioner 

concluded that: "Respondent had the choice of proceeding or 

standing on its motion. By presenting evidence, Respondent 

waived its right to appeal from the judge's 'denial' of its 

motion." 

449 
Here, Respondents presented evidence following the judge's 

reservation of a ruling. The motion is denied and the case will 

be decided upon all the evidence. 

III 

DECISION ON THE MERITS 

The first question is whether the walkway was "maintained 

in good repair to prevent accidents and injuries" as required by 

30 C.F.R. § 77.200. 

Freeman contends that the old preparation plant had 

undergone an extensive rehabilitation program to repair or 

replace deteriorating steel columns and beams and that the 

particular walkway section had not been observed as requiring 

repairs. 

This arg~ent fails because the steel supports that 

collapsed were 'visibly badly deteriorated due to corrosion. 

Also, a number of other steel members supporting the walkway were 

visibly deteriorated due to corrosion. Under the R & S report, 

"immediate attention" was required for "beams and columns where 

holes exist or can be punched out with a hammer." Without 

rehabilitation or replacement of the deteriorated members, the 

walkway clearly was not being "maintained in good repair to 

prevent accidents and injuries to employees." Freeman was 

therefore in violation of 30 C.F.R. § 77.200. 

The next question is whether Freeman was negligent in 

failing to maintain the walkway in good repair. I find that it 

was. 

Freeman contends that it had started the rehabilitation 

program in 1987 and in 1989 engaged the engineering firm (R & s·) 

that built the plant to return to inspect the structural 

condition of the plant and make recommendations. It states that 

before the walkway collapsed it had taken corrective action on 

the specific recommendations in the engineering firm's report and 

was carrying out an ongoing inspection and repair program on 

columns and beams in accordance with the engineering report. 

4 50 
However, the walkway collapse occurred more than three and a 

half years after the R & S report, which had warned Freeman that 

"immediate attention" must be given to "beams and columns where 

holes exist or can be punched out with a hammer" and that "for 

beams, holes near connecting and concentrated loads are 

critical." Exh. G-3, p.3. The steel supports that collapsed 

under the walkway were badly deteriorated and were plainly 

visible before the accident. 

In Alabama By-Products, 4 FMSHRC 2128, 2129 (1982) , the 

Commission held: 

[I]n deciding whether equipment or machinery is in safe or 

unsafe operating condition, . . . the alleged violative 

condition is appropriately measured against the standard of 

whether a reasonably prudent person familiar with the 

factual circumstances surrounding the allegedly hazardous 

condition,. including any facts peculiar to the mining 

industry, would recognize a hazard warranting corrective 

action. 

The "reasonably prudent person" test applies to engineers 

as well as to laymen. This case focuses upon the responsibility 

of engineer-supervisors to protect the safety of miners using an 

elevated walkway. Miners and supervisors who are not engineers 

are not expected to know the structural integrity of steel beams 

and columns. To a layman, including a supervisor who is not an 

engineer, deteriorated or corroded steel beams 14 feet above the 

floor may not seem dangerous if the company engineers indicate 

that they have carefully checked the structural condition and 

that the beams are safe. However, the walkway suddenly collapsed 

because of deteriorated steel beams. The question raised is 

whether a reasonably prudent engineer would have inspected and 

repaired or replaced the beams before they collapsed. 

The Respondent engineer-supervisors were fully aware of the 

history of deterioration of steel members in the old plant, 

including a major collapse of a conveyor belt in 1987 because of 

deteriorated steel members, and the 1989 R & S report that warned 

of the need to give "immediate attention" to "beams and columns 

where holes exists or can be punched out with a hammer." I find 

that a reasonably prudent engineer having such knowledge and 

being familiar with the mining industry would have performed or 

451 
required careful and frequent inspections of the steel beams of 

the elevated walkways including hammer tests of suspicious 

looking beams. By the exercise of reasonable care, · the failed 

beams and steel supports could have been detected and corrected 

to prevent the collapse that occurred on June 8, 1993. I also 

find that, before the walkway collapse, a reasonably prudent 

engineer who observed the other deteriorated steel members later 

found by the MSHA engineers would have repaired or replaced them. 

I now turn to the issue of whether the individual 

Respondents are l i abl e as corporate agents under§ llO( c ) of the 

Act. This section provides: 

whenever a corporate operator violates a mandatory health or 

safety standard or knowingly violates or fails or refuses to 

comply with any order issued under this Act or any order 

incorporated in a final decision issued under this Act, 

except an order incorporated in a decision issued under 

subsection lOS (c ) , any director, officer, or agent of such 

corporatio·n, who knowingly authorized, ordered, or carried 

out such violation, failure, or refusal shall be subject to 

the same civil penalties, fines, and imprisonment that may 

be imposed upon a person under subsections (a) and (d) . 

The individual Respondents were agents of the corporate 

Respondent within the meaning of § llO(c) . Respondent Neal 

Merrifield was vice president of operations at the time of the 

collapse of the walkway. He is a mining engineer. Before 

becoming vice president of operations he had been mine 

superintendent. As vice president of operations, his 

responsibilities included safety of the operations of the mine 

facilities. The safety and engineering departments reported to 

him. Respondent James Yancik reported to Mr. Merrifield. 

Mr. Yancik was manager of quality control and plant m~intenance 

and the preparation engineer at the subject mine. He is a mining 

engineer with a specialty in structural analysis. 

In warren Steen Construction. Inc. and warren Steen, 

14 FMSHRC 1125, 1131 (1992), the Commission held that, "In order 

to establish§ llO(c) liability, the Secretary must prove only 

that an individual knowingly acted, not that the individual 

knowingly violated the law . " In Kenny Richardson y . Secretary of 

Labor, 3 FMSHRC 8, 16 (1981), aff'd, 689 F.2d 632 (6th Cir 1982), 

452 
cert. denied, 461 U.S. 928 (1983), the Commission defined the 

term "knowingly" as follows: 

"Knowingly," as used in the Act, does not have any meaning 

of bad faith or evil purpose or criminal intent. Its 

meaning is rather that used in contract law, where it means 

knowing or having reason to know. A person has reason to 

know when he has such information as would lead a person 

exercising reasonable care to acquire knowledge of the fact 

in question or to infer its existence . 

A "knowing" violation does not require a showing that the 

corporate agent "willfully" violated the Mine Act or safety 

regulations. Rather, the Commission held that: 

If a person in a position to protect employee safety and 

health fails to act on the basis of information that gives 

him knowledge or reason to know of the existence of a 

violative condition, he has acted knowingly and in a manner 

contrary t o the remedial nature of the statute. [.Id . ] 

The individual Respondents knew as early as 1984 that the 

steel members in the old preparation plant were deteriorating. 

After the new plant was built in 1984, the steel members in the 

old plant continued to deteriorate. In 1987, a conveyor belt 

collapsed because of deteriorated steel members. The collapse 

shut down production .and caused Freeman to recognize that the old 

plant must be rehabilitated. However, progress toward 

rehabilitation was slow. In 1989, Freeman engaged the 

engineering firm (R & S) that built both plants to return to 

evaluate the structural condition of the old plant and make 

recommendations. After Freeman received the R & S report 

(November 30, 1989 ) , rehabilitation efforts still moved slowly. 

More than three and a half years after the report, the .cited 

walkway was still in bad repair, as evidenced by the collapse of 

the walkway on June 8, 1993, and the deterioration of other steel 

members disclosed by the MSHA investigation after the walkway 

collapsed. The three and a half years from the R & S report to 

the walkway collapse represents about 1,600 workshifts during 

which miners were exposed to the hazards of the elevated walkway. 

Respondents had a legal duty to ensure that the elevated 

walkway was "maintained in good repair to prevent accidents and 

453 
injuries to employees." 30 C.F.R. § 77.200. The R & s report 

put them on notice that "immediate attention" was needed to 

repair or replace all "beams and columns where hole·s exist or can 

be punched out with a hammer. For beams, holes near connections 

and concentrated loads are critical." 

The individual Respondents were agents of the corporate mine 

operator and were qualified engineers in positions to protect the 

safety of miners who used the elevated walkway. Mr. Merrifield 

prioritized the rehabilitation sequences to carry out the 

recommendations in the R & S report and Mr. Yancik had the 

responsibility to inspect the steel members for compliance with 

the criteria in the R & S report. They knew that the steel 

members supporting the elevated walkway needed to be inspected 

carefully and frequently in order to give "immediate attention" 

to "beams and columns where holes exist or can be punched out 

with a hammer," as warned by the R & S report. This required 

hammer testing of any suspicious beams. It is clear that the 

beams that failed on June 8, 1993, were more than suspicious, but 

had not been properly tested and remedied before the collapse. 

Mr. Yancik testified that he never received any written 

report that told him or caused him to believe that the plant was 

not being maintained in a safe condition or that the walkway that 

collapsed was dangerous. However, Mr. Yancik was the individual 

charged with making inspections of the plant to create those 

kinds of reports. In addition, he was aware of the 1987 collapse 

of the conveyor belt and of the clear warnings in the R & S 

report. 

Mr. Yancik acknowledged that it would have been reasonable 

to inspect the walkway beams after Freeman removed the floor at 

elevation 454. When asked why Freeman did not replace any of the 

steel members under the walkway, Mr. Yancik concluded, that the 

structural condition was not bad enough to require remedial 

attention. Yet the walkway failed because of advanced 

deterioration and badly corroded steel beams. 

Mr. Merrifield was a decisionmaker responsible for safety of 

operations of the old preparation plant from the time he was mine 

superintendent and later vice president of operations. He had a 

thorough knowledge of the history of deterioration of the steel 

members, including the 1987 collapse of the conveyor belt and the 

454 
1989 R & S report . He made monetary decisions regarding 

rehabilitative efforts in the old plant. With his knowledge of 

the R & S report, and his qualifications as an engineer, he had a 

duty to heed the warnings of the R & S report and see to it that 

beams, col umns, and metal supports for the elevated walkway were 

carefully and frequently inspected so that "immediate attention" 

would be given to any beams or columns "where holes exist or can 

be punched out with a hammer." He had the authority to provide 

copies of the R & S report to the safety director and surf ace 

manager (who both reported to him) and to discuss it with them. 

However, he failed to do so. 

When the surface manager, Mr. Stanley, led a crew of four 

men onto the walkway on June 8, 1993, he had no knowledge of the 

R & S report and its warning that "immediate attention" must be 

given to "beams and columns where holes exist or can be punched 

out with a hammer." Since he was not an engineer, and had no 

traini ng in structural analysis, he had to rely upon the 

individual Respondents to see that the walkway was kept in a safe 

condition. Respondent Merrifiel d prioritized the rehabilitation 

sequences to carry out the recommendations of the R & S report, 

and Respondent had the responsibility to inspect the steel 

members for compliance w~th the criteria spelled out in the R & S 

report. Both were qualified engineers who knew the significance 

of the dangers found in the report, but they did not convey them 

to Mr. Stanley or the mine safety director. 

Had they informed Mr. Stanley, the surface manager, of the 

need t o look out for "beams and columns where holes exist or can 

be punched out with a hammer," Mr. Stanley would have had crucial 

safety information when he assigned four men to work with him on 

the walkway that collapsed. This would have alerted him to 

immediately report any beams "where holes exist or can be punched 

out with a hammer," and may have alerted him to look at the beams 

below before placing a concentrated live load on the walkway. 

Had he looked at the beams, he would have seen the deterioration 

and corrosion that the MSHA engineers saw after the collapse of 

the walkway. This probably would have alerted him to call the 

individual Respondents for an evaluation of the safety of the 

walkway. 

Respondents argue that a number of MSHA inspectors had 

inspected the old plant before the collapse in June 1993, but did 

455 
not cite the walkway as being unsafe. However, MSHA inspectors 

are not engineers, and the dangers of the walkway were such that 

only specially qualified persons, such as engineers, could fully 

understand the hazards involved in the context of the R & s 

report. Moreover, in Raymer v. United States, 660 F.2d 1136, 

1143 (6th Cir. 1981), cert. denied. 456 U.S. 944, 102 

S. Ct. 2009 (1982), the court held that MSHA inspectors do not 

undertake to perform a duty owed by the mine operator to its 

employees. The court rejected the idea that responsibility for 

mine safety is shifted to the federal government. 

In Joseph B. Necessary, 6 FMSHRC 2567 (1984), Commission 

Judge Koutras found that an agent with 45 years of experience in 

the construction business who was supervising the repair of a 

mine refuse storage bin that collapsed, killing three miners, 

violated 30 C.F.R. § 77.200. Judge Koutras found that the 

collapse was caused by a misalignment in the support columns and 

that the supervisor was aware of the misalignment. In affirming 

the citation, Judge Koutras found that, in light of the 

supervisor's e~erience, "he knew or should have known that the 

misalignment posed a serious potential safety hazard requiring 

immediate correction." 

I find that Respondents Merrifield and Yancik "knowingly 

authorized, ordered, or carried out" a violation of 30 C. F .R. 

§ 77.200, within the meaning of § llO(c) of the Act, by failing 

to take necessary steps within their competence and authority to 

see that the cited walkway was "maintained in good repair to 

prevent accidents and injuries to employees." Miners and 

supervisors who are not engineers cannot be expected to judge the 

structural integrity of steel beams and columns. However, when a 

mine operator engages the engineering firm that constructed a 

building to return to evaluate its structural condition after 

years of corrosion of steel members, it is incumbent upon the .. 

operator's own engineers to exercise due diligence and reasonable 

care in implementing the builder's repair and rehabilitation 

recommendations. The individual Respondents patently failed to 

do so with respect to the walkway that collapsed on June 8, 1993. 

The collapse was not an unforseen accident. There had 

already been a major collapse in 1987. As rehabilitation work 

progressed in the old plant, beams that were repaired or replaced 

were painted yellow. As of the date of the collapse, yellow 

456 
horizontal beams were in areas where weight had been removed from 

the floor and where holes had been covered to prevent falls 

through the floor. Apparently there were no yellow beams 

supporting the elevated walkway. The MSHA engineers found a 

number of beams and supports that were deteriorated, similar to 

the beams that collapsed on June 8, 1993. This indicates that 

the walkway was in overall bad repair, that the collapse on June 

8 could readily have occurred in many dangerous places in the 

walkway, and that a concentrated live load (several miners) was 

critical, as predicted by the R & S report. 

Thi s was not a situation in which a claim of "unforseen 

accident" could be reasonabl y asserted. Rather, it was a 

coll apse ready to happen . 

I find that the violations of § 77.200 by the individual 

Respondents were due to high negligence and their negligence is 

imputed to the corporation. In reaching this conclusion, I have 

considered a n~mber of factors. These include: their expert \ knowledge as engineers of the history of deterioration of steel 

members in the old plant, the 1987 collapse of the conveyor belt, 

and the clear notice in the 1989 R & S report of the steps 

necessary to maintain the elevated walkway in good repair; their 

failure to heed the R & S report by taking necessary action to 

inspec t and repair the walkway that collapsed; their failure to 

advise the safety director and the surf ace manager of the need to 

look out f or holes and weak spots in the beams under the walkway; 

and the great risk to the miners who regularly used the elevated 

walkway, including the four miners who were injured. 

IV 

CIVIL PENALTIES 

The key to the Mine Act is prevention of mining hazards by 

compliance with safety and health standards. This requires 

diligence in monitoring changing mine conditions to see that the 

mine is in compliance. 

As found in the Discussion, Freeman and the two individual 

Respondents were highly negligent in failing to maintain the 

walkway in good !repair to prevent accidents and injuries to 

employees. Their violations of § 77.200 are aggravated by the 

457 
fact _that they had a supervisory and professional responsibility 

to protect laymen who were dependent upon their expert knowledge. 

In Roy Glenn, 6 FMSHRC 1583, 1587 (1984), the Commission 

repeated its holding in Kenny Richardson. supra, that "a 

supervisor's blind acquiescence in unsafe workings would not be 

tolerated," and that "supervisors ... could not close their 

eyes to violations, and then assert lack of responsibility for 

those violations because of self-induced ignorance." Similarly, 

in passing the 1977 Mine Act, Congress was particularly concerned 

over the high number of mining injuries and fatalities that 

resulted from inadequate supervision and hazardous "conditions 

reasonably within the power of management to prevent." H.R. Rep. 

No. 312, 95th Cong., 1st Sess. 4 (1977), reprinted in Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 

360 (1977) . 

Section llO(i) of the Act provides six criteria for 

assessing civil penalties. Considering each of the criteria, I 

find that Freeman is a large operator, the civil penalties in 

this Decision will not affect its ability to continue in 

business, Freeman has an average compliance history for its size, 

and after the citation was issued the three Respondents made a 

good faith effort to achieve compliance with 30 C.F.R. § 77.200 . 

The three Respondents violated that section, as found above. The 

gravity of the violations was high and the violations were due to 

high negligence on the part of each Respondent. 

Considering all of the criteria for civil penalties in 

§ llO (i) of the Act, I find that the following civil penalties 

are appropriate for Respondents' violations of § 77.200: 

Respondent Freeman United Coal Mining Company, a civil 

penalty of $10,000. 

Respondent Neal Merrifield, a civil penalty of $5,000. 

Respondent James Yancik, a civil penalty of $4,000. 

The penalties are higher than the penalties proposed by the 

Secretary because of Respondents' aggravated conduct in ignoring 

the clear steps needed to protect the safety of the miners. 

Through their high negligence in failing to replace defective 

45 8 
beams, the walkway was allowed to deteriorate to the point of a 

sudden collapse causing severe injuries. 

CONCLUSIONS or LAW 

1. The judge has jurisdiction. 

2. Respondents violated 30 C.F.R. § 77.200 as found above. 

ORDIR 

1. Citation No. 3537447 is AFFIRMED. 

2. Within 30 days of the date of this Decision : Respondent 

Freeman United Coal Mining Company shall pay a civil penalty of 

$10,000; Respondent Neal Merrifield shall pay a civil penalty of 

$5,000; and Respondent James Yancik shall pay a civil penalty of 

$4,000 . 

Distribution: 

t,J;a......._ f"~v~ William Fauver 

Administrative Law Judge 

Christine M. Kassak, Esq . , Office of the Solicitor, U.S. 

Department of Labor, 230 S. Dearborn St., 8th Floor, Chicago, 

IL 60604 (Certified Mail) 

Richard R. Elledge , Esq., Gould & Ratner, 222 N. LaSalle St ., 

Suite 800, Chicago, IL 60601 (Certified Mail) 

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania 

Ave., NW., Washington, DC 20004-2595 (Certified Mail) 

/lt 

459 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JU'.>GES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAR 2 9 1996 

AMAX COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CONTEST PROCEEDING 

Docket No. LAKE 95-403~R 

Order No. 4264060 

Wabash Mine 

Mine ID 11-00877 

DECISION 

Appearances: R. Henry Moore, Esq., Buchanan Ingersoll 

Professional Corp., Pittsburgh, Pennsylvania for 

Contestant; 

\ Christine M. Kassak, Esq., Office of the 'Solicitor, U.S. Dept. of Labor, Chicago, Illinois 

for Respondent. 

Before: Judge Melick 

This case is before me pursuant to Section 105{d) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c., Section 

801 et seq., the "Act," and upon the Notice of Contest filed by 

the Amax Coal Company {Amax) challenging a Nfailure-to-abate" 

order issued by the Secretary of Labor under Section 104{b) of 

the Act. 

At 11:30 on the morning of September 11, 1995, Inspector 

Robert Stamm of the Department of Labor's Mine Safety and Health 

Administration {MSHA) issued Citation No. 4264057 to Amax under 

Section 104(a) of the Act alleging a violation of the standard at 

30 C.F.R. § 75.400 and charging as follows: 

An accumulation of coal and coal fines was present 

around the tail area of the #3 main West conveyor belt 

and extending 60 feet outby. The coal measured 4 to 24 

inches in depth and was also present inby the tail and 

in the #34 crosscut with side. The belt was rubbing the 

coal and heat was present on the tail structure. Also 

float coal dust (black in color) was present on the mine 

floor from #2 to 36 crosscut, including the adjacent 

crosscuts. 

The cited standard provides that Ncoal dust, including float 

coal dust deposited on rock-dusted surfaces, loose coal, and 

other combustible materials, shall be cleaned up and not be 

permitted to accumulate in .active workings, or on electric 

equipment therein. " 

4 60 
The citation also provided that these violative conditions 

were to be abated by 4:00 p.m. that same day. No representative 

of the secretary appeared at the stated time, however, to 

determine whether the conditions had, in fact, been ·abated. 

Three days later, around 9:30 on the.morning of September 14, 

1995, the issuing inspector returned to the scene of the cited 

violation and found that an accumulation existed within the same 

area as originally cited in Citation No. 4264057. The Secretary 

acknowledges that he is unable to prove that the accumulated 

material found on September 14 was any part of the original 

accumulation cited on September 11. 1 In any event, Inspector 

Stamm issued an Mextension of time" for abating the condition he 

found at 9:30 a.m. in a Msubsequent action" form issued at 10:30 

that morning. That form states as follows: 

A portion of the coal was removed from the tail area 

and for 40 feet outby of the #3 main West conveyor belt. 

An extension of time is being granted to remove the 

remaining coal from the tail area and 20 feet outby. 

Inspector Stamm returned to this location at 12:25 p.m. on 

September 14 and, finding an accumulation, issued the section 

104(b) order at. bar. The order charges in relevant part that 

#(a]fter a reasonable termination due date and an extension of 

time, coal was still present under the tail area and extending 20 

feet outby the #3 main West belt conveyor." This order was 

terminated 40 minutes later at 1:05 p.m. 

Amax apparently does not dispute that the accumulations 

found by Inspector Stamm on September 11, 1995, constituted a 

violation of the cited standard but maintains that those 

accumulations had been removed, thereby abating the violation 

before the accumulation found on September 14 was created. Amax 

argues, therefore, that the September 14 Section 104(b) order was 

improperly issued. 

When issuing a citation under Section 104(a) of the Act, the 

inspector must udescribe with particularity the nature of the 

violation" as well as uf ix a reasonable time for abatement of the 

violation". I~ addition, Section 104{b) of the Act provides as 

follows: 

1 The Secretary, as any litigating party, is bound by his 

admissions at trial and cannot retract those admissions by simply 

making contrary statements in a post-hearing brief. Any such 

contrary statements are accordingly rejected. If, indeed, it was 

subsequently discovered that the admissions were factually 

incorrect, the appropriate remedy is by motion for a new trial or 

similar motion stating appropriate grounds for relief. 

461 
If, upon any follow-up inspection of a coal or other mine, 

an authorized representative of the Secretary finds (1) that 

a violation described in a citation issued pursuant to 

subsection (a} has not been totally abated within the period 

of time as originally fixed therein or as subsequently 

extended, and (2) that the period of time for the abatement 

should not be further extended, he shall determine the 

extent of the area affected by the violation and shall 

promptly issue an order requiring the operator of such mine 

or his agent to immediately cause all persons, except those 

persons referred to in subsection (c), to be withdrawn from, 

and to be prohibited from entering, such area until an 

authorized representative of the Secretary determines that 

such violation has been abated. 

When the validity of a section 104(b) order is challenged by 

an operator, the Secretary bears the burden of proving that the 

violation described in the underlying citation has not been 

abated within the time originally fixed or as subsequently 

extended. Mid Continent Resources, Inc., 11 FMSHRC 505, 509 

(April 1989) In that case the Commission specifically held that 

the Secretary establishes a prima facie case that a section 

104(b) order fs valid by proving by a preponderance of the 

evidence that the violation described in the underlying section 

104(a) citation existed at the time the section 104(b) withdrawal 

order was issued. The operator may, however, rebut the prima 

fac i e case by showing that the violative condition described in 

the sec t ion 104(a) citation had been abated within the time 

period fixed in the c itation, but had recurred. See also Mettiki 

Coal Corp., 13 FMSHRC 760, 765 (May 1991). 

While the Secretary acknowledges that he cannot prove that 

any part of the coal accumulation found on September 11 

continuous ly existed until September 14, under the Mid Continent 

decision he is apparently not required to prove that the original 

violative condition continuously existed until the section 104(b} 

order was issued. In any event, in this case the operator has 

produced sufficient credible evidence to show that the original 

accumulation cited in the section 104(a) citation had been 

cleaned prior to the issuance of the extension and order on 

September 14. In this regard it is undisputed that Foreman 

Thompson assigned miners to clean the cited area after the order 

was issued on September 11 and that miners were continuing to 

clean at 3:00 p.m. when Thompson left the section. After the 

initial cleanup, the mine examiners made no entries in the 

examination book concerning an accumulation for the afternoon 

shift on September 11 or the following midnight shift on 

462 
September 12 (R-25, pp. 70, 72). 2 While the examiner for the 

midnight shift noted in the •Remarks" column that the tail should 

be cleaned, this was not reported as a •violation or. hazardous 

condition" and on the next shift, the day shift for September 12 , no condition concerning accumulations or needing cleaning in the 

area of the citation (tail area plus 60 feet) was noted 

(R-25, p. 74). on the September 12 afternoon shift it is noted 

on the record books that the tail to so feet outby needed .to be 

cleaned and this was addressed on the next shift {Tr. 57-8; R-25, 

pp. 76-7). On the September 13 midnight shift, the tail and 75 

feet outby were noted as needing cleaning and it appears to have 

been cleaned on the next shift (R-25, pp. 78-9). This is 

confirmed by the absence of a notation that the tail area needed 

to be cleaned in the entry for the day shift on September 13 

(R-25, p.80). On the September 13 afternoon shift, the mine 

examiner noted that the tail and 100 feet outby needed to be 

cleaned. This was addressed on the next shift, the September 14 

midnight shift (Tr. 62, 64-5; R-24, pp. 2-3). In addition, the 

examiner at the end of the midnight shift observed that the tail 

area needed to be cleaned (not the 100 feet outby) (R-24, p.4), 

and cleaning apparently occurred at the end of the shift. 

(Tr. 63-4, 67-8). 

Within the above framework I find that the operator has 

established that the condition cited on September 11 had been 

abated before the issuance of the order on September 14. Under 

the circumstances, the order was not issued within the legal 

parameters of Section 104{b) and must be dismissed. 3 

2 Page references are to the copies of exhibits with 

numbered pages as submitted with Respondent's brief. 

3 The Secretary's conditional request in his post-hearing 

brief for permission to amend his pleadings to modify the order 

to a section 104(a) citation is rejected. A request to modify a 

charging document is properly made by motion. See Wyoming Fuel 

Co., 14 FMSHRC 1282, 1289 (August 1992) (Citing Cypress Empire 

Corp., 12 FMSHRC 911, 916 (May 1990). It would also be 

inappropriate to modify the 104(b) order to a 104(a) citation sua 

sponte. The necessary findings and related criteria in issuing 

104(a) citations are not set forth in the 104(b) order and the 

operator has not been provided adequate notice. Consolidation 

Coal Co., 4 FMSHRC 1791, 1794-6 (October 1982). 

463 
ORDER 

Order No. 4264060 is hereby vacated • 

Distribution: 

I . '! !lvv ~ Gary Me ick 

Adminis rative L w Judge 

703-756 6261 

Christine M. Kassak, Esq . , Office of the Solicitor, U.S. Dept. of 

Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

R. Henry Moore, Esq . , Buchanan Ingersoll Professional Corp., 

One Oxford Centre, 301 Grant Street, 20th Floor, Pittsburgh, PA 

15219-1410 (Certified Mail) 

\jf 

464 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHU~CH, VIRGINIA 22041 

MAR 2 9 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

REVIEW COMMISSION, 

Petitioner 

Docket No . PENN 93-51 

A. C. No. 36-02713-03576 

v. 

Frenchtown 

POWER OPERATING COMPANY , INC., 

Respondent 

Appearances: 

DECISION ON REMAND 

Linda Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania for Petitioner; 

Tim D. Norris, Esq., and Farrah Lynn Walker, Esq . , 

Stradley, Ronon, Stevens & Young, Philadelphia, 

Pennsylvania for Respondent. 

Before: Judge Weisberger 

On March 18, 1996, the Commission (18 FMSHRC , Docket 

No. PENN 93-51, {March 18, 1996)) issued a decision reversing my 

initial finding that the cited violation of 30 C.F.R. § 1710{a) 

{Citation No. 3709644) was not significant and substantial. 

The Commission remanded for reassessment of the civil penalty. 

I reiterate my initial finding that Respondent's negligence 

was less than moderate (16 FMSHRC 591,607 {March 2994)). Taking 

cognizance of the Commission's finding that the violation was 

significant and substantial in that there was a reasonable 

likelihood of an eye injury of a reasonably serious nature, and 

considering the remaining factors set forth in Section llO{i) of 

the Federal Mine Safety and Health Act of 1977, I find that a 

penalty of $500 is appropriate. .-.. 

465 

Avra~sberger CC I~ Administrative Law Judge 
Distribution: 

Linda Henry, Esq., Office of the Solicitor, U.S. · Department of 

Labor, 3535 Market Street, Room 14480, Gateway Building, 

Philadelphia, PA 19104 (Certified Mail) 

Tim D. Norris, Esq., and Farrah Lynn Walker, Esq . , Stradley, 

Ronon, Stevens & Young, 2600 One Commerce Square, Philadelphia, 

PA 19103-7098 

/ml 

466 
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 

FEB 2 6 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KYLE J. WETHINGTON, employed by 

AMAX COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 95-404 

A.C. No. 11-00887-04127 A 

Wabash Mine 

STAY OF PROCEEDING 

Petitioner has moved for a stay of the instant proceeding 

pending Commission review of my decision in A1Dax Coal Company, 

Docket No. LAKE 95-267, 17 FMSHRC 1747 (ALJ-October 1995), which 

arose from the identical facts as the instant case1 • In that 

decision, I concluded that Amax's violation of its ventilation 

plan and 30 C.F.R. § 75.370(a ) (1) was due to an "unwarrantable 

failure" to comply with the regulation. 

The finding of "unwarrantable failure" in Amax rests on 

my conclusion that Kyle Wethington, an Amax foreman and the 

Respondent in this matter, was aware that a line curtain was 

not close enough to the working face of ·the mining section to 

comply with Arnax ' s ventilation plan . This factual finding was 

inferred from the amount of time Mr. Wethington was in· the entry, 

the obviousness of the violative condition, and his co~duct in 

immediately returning to the section upon encountering MSHA 

Inspector Robert Montgomery. 

Respondent opposes the stay and indicates that it intends to 

take discovery from MSHA regarding the decision to pursue a civil 

1The Secretary has also moved for partial summary judgment. 

I def er ruling on this motion pending the outcome of the 

Commission's review of my finding of "unwarrantable failure" in 

Affiax Coal Company, Docket No. LAKE 95-267. 

467 
penalty under section llO(c) of the Act. Respondent's counsel 

has also indicated an intention to relitigate the issue of 

Mr. Wethington's awareness of the violation prior to encountering Inspector Montgomery. To this end, he intends to depose 

Robert Scott, a rank-and-file miner, whose testimony I credited 

over that of Mr. Wethington, with regard to the length of time 

Wethington was in the entry prior to seeing Montgomery. 

The motion for a stay of proceeding is GRANTED. The 

question in this case is whether Wethington is precluded from 

litigating the knowledge issue by virtue of my findings in the 

prior civil penalty proceeding. Often courts resolve this issue 

by determining whether a litigant was \\in privity" with a party 

to a prior action. 

Although Mr. Wethington was not a party in the civil penalty 

proceeding brought against the operator, his interests are 

sufficiently congruent to those of Amax that I deem him to be \\in 

privity" with Amax. He is therefore bound by my findings in his 

employer's case. As the Court of Appeals for the Eighth Circuit 

observed: 

... the general common law rule is that claim 

preclusion only works against those who had a fair 

chance to contest the earlier suit ... This rule has 

in recent decades been liberalized, and the focus 

of the claim preclusion inquiry has in some instances 

shifted from whether a party itself participated 

in the prior litigation to whether the party's 

interests were fully represented in the earlier case, 

albeit by another. 

County of Boyd v. US Ecology, 48 F.3d 359, 361 (8th Cir. 1995); 

Also see Headley v. Bacon, 828 F.2d 1272 (8th Cir. 19~7). 

As the Court of Appeals for the Seventh Circuit noted: 

Privity is an elusive concept. It is a descriptive 

term for designating those with a sufficiently close 

identity of interests. Of course, this definition 

reveals very little about the kinds of relationships 

that result in res judicata . .. 

46 8 
Matter of L & S Industries. Inc., 989 F.2d 929, 932 (7th Cir. 

1993 ) I 

It has also been observed that: 

[a]s the preclusive effects of judgments have 

been expanded to include nonparties in more and 

more situations ... it has come to be recognized 

that the privity label simply expresses a conclusion that preclusion is proper. Modern 

decisions search directly for circumstances to 

justify preclusion. 

18 C. Wright, a. Miller & E. Cooper, Federal Practice and 

Procedure, §4449, at 418-19 (1981). 

In the prior case, Wethington and Amax had a very strong 

mutual interest in prevailing on the issue of his knowledge of 

the violation. Even in the absence of a llO(c) case, a supervisor has a strong interest in avoiding the affirmation of an 

"unwarrantable failure" characterization against his employer 

when that allegaton is predicated on his or her conduct or 

knowledge. Amax litigated the penalty primarily on the 

unwarrantable failure issue. 

Although they are not conclusive factors, I note also that 

Wethington was one of, if not Amax's principal witnesses in the 

civil penalty hearing and that Amax's counsel also represents 

Mr. Wethington. Upon review of the record, I decided not to 

credit Wethington's testimony with regard to what he knew before 

he encountered Mr. Montgomery. I conclude he is not entitled to 

another opportunity to litigate this issue in the context of the 

llO(c) proce~ding, See Parklane Hosiery Co. v. Shore, 439 U.S. 

322, 99 S.Ct. 645, 58 L.Ed. 2d 552 (1979); Soutbwest Airlines Co. 

v. Texas International Airlines. Inc., 546 F.2d 84, 95 (5th Cir. 

1977); but see Benson and Ford. Inc. v. Wanda Petroleum Co., 

833 F.2d 1172 (5th Cir. 1987) . 

In opposing the stay, Wethington also argues that Commission 

precedent allows an individual to litigate a Section llO(c) proceeding, irrespective of the outcome of the operator's challenge 

to the underlying enforcement action, citing Kenny Richardson, 

3 FMSHRC 9 (Review Commission, January 1981) . Richardson is 

469 
distinguishable in that the operator settled the underlying 

enforcement action. In this case whether Mr. Wethington was 

aware of the violative condition was fully litigated in the civii 

penalty proceeding. 

I am also ?npersuaded by Respondent's reliance on Secretary 

of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786 (Review Commission 1980) and Alexander v. Gardner-Denyer, 

415 U.S. 36, 39 L.Ed 2d 147, 94 S Ct 1011 (1974). The Supreme 

Court's reluctance in Gardner-Denver to cut off the right to a 

de novo hearing based on an arbitration decision was predicated 

on the nature of arbitrations. The Court noted: 

.. . the factfinding process in arbitration usually 

is not equivalent to judicial factfinding. The record 

of the arbitration is not as complete; the usual rules 

of evidence do not apply; and rights and procedures 

common to civil trials, such as discovery, compulsory 

process, qross-examination, and testimony under oath, 

are often 'severely limited, or unavailable .... And 

as this Court has recognized '[a]rbitrators have no 

obligation to gives their reasons for an award.' 

415 U.S. 57-58. 

No such infirmities exist with regard to the operator's 

hearing on its challenge to the "unwarrantable failure" order. 

I can see no unfairness in refusing to allow Mr. Wethington to 

relitigate the issue of his state of knowledge. Had Amax 

prevailed on the "unwarrantable failure" issue, I would not allow 

the Secretary another opportunity to prove that Wethington knew 

of the violative condition in a section llO(c} proceeding. I 

conclude that Mr. Wethington was afforded all of the procedural 

protection to which he was entitled. 

4 70 

rua._.i_~~ 

~lJ.r J. Amchan 

Administrative Law Judge 

703-756-6210 
Distribution : 

Christine M. Kassak, Esq . , Office of the Solicitor; . 

U.S. Department of Labor, 230 South Dearborn St . , 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., One Oxford 

Centre, 301 Grant St., 20th Floor, Pittsburgh, PA 15219-1410 

(Certified Mail) 

/ l h 

4 71 
l'BDmL KDDI 8Al'BTY UD mLD JUNJ:BW' COJO«SSJ:OJI 

1244 SPEBR BOULEVARD #280 

DENVER, co 80204-3582 

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

March 7, 1996 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ASARCO, INCORP.ORATED, 

Respondent 

. . 

. . 

Docket No. WEST 95-155-M 

A.C. No. 05-00516-05565 

Black Cloud Mine 

ORDER DENYING MOTIONS FOR SUMMARY DECISION 

Respondent ("Asarco") filed a motion for summary decision in 

this case pursuant to Commission Rule 67, 29 C.F.R. § 2700.67. 

The Secretary of Labor opposes Asarco's motion and filed a cross 

motion for summary decision. For the reasons set forth below, I 

deny both motions. 

Commission Rule 67(b) sets forth the grounds for granting 

summary decision, as follows: 

A motion for summary decision shall be 

granted only if the entire record, including 

the pleadings, depositions, answers to 

i nterrogatories, admissions, and affidavits, 

shows: 

(1) That there is no genuine issue 

as to any material fact; and 

(2) That the moving party is entitled to summary decision as a 

matter of law. 

On March 3, 1994, MSHA Inspector Leo c. Holtz issued to 

Asarco Citation No. 3904841 alleging a violation of 30 C.F.R. 

§ 57.6131 at its Black Cloud Mine in Lake County, Colorado . The 

citation states that the explosives storage facility at the mine 

was about 420 feet from a mine "building in which two miners work 

on a regular basis" and that this distance is "insufficient to 

protect the miners from the forces generated should this storage 

facility explode." The safety standard provides, in subsection 

472 
(a) (1), that storage facilities for any explosive material shall 

be "located so that the forces generated by a storage facility 

explosion will not create a hazard to occupants in mine buildings 

" 

Asarco argues that the citation should be vacated because 

MSHA relied on the American Table of Distances in reaching its 

conclusion that the explosive storage facility was too close to 

the mine building, an assay laboratory. It contends that MSHA 

failed to consider the factors set forth in the safety standard 

and in the preamble to the standard. The Secretary contends that 

it is not prohibited from u sing the American Table of Distances 

as a guideline to determine whether a magazine creates a hazard . 

In addition, he asserts that the undisputed evidence establishes 

that Asarco's magazine creat ed a hazard to occupants in the assay 

laboratory and that he is entitled to summary decision in his 

favor. 

A. Asarco's motion for summary decision 

Until recently, the Secretary's safety standard required 

that explosive magazines be "located in accordance with the 

current American Table of Distances for storage of explosives." 

30 C.F.R. § 57.6020(a} (repealed}. The American Table of Distances was developed by the Institute of Makers of Explosives. 

In 1991, the Secretary proposed to revise its explosive standards 

to require that explosive magazines be ''located in accordance 

with Appendix I for subpart E -- MSHA Table of Distances." Appendix I was a table of distances that was based on the American 

Table of Distances. On December 30, 1993, the Secretary promulgated a final rule on safety standards for explosives at metal 

and nonmeta l mines wh ich adopted the current language of section 

57.6131. 58 Fed. Reg. 69596 (attached as Ex. 4 to Asarco's 

memorandum} . 

In the preamble to the new standard, the Secretary described 

why he changed the standard. Id. at 69600-601 .. The Secretary 

explained that his incorporation of the America~ Table of 

Distances was not acceptable because the table "does not govern 

the distances between explosive material storage facilities and 

occupied buildings on mine property; rather, it governs the 

distances between explosive material storage facilities and 

structures, roads, and inhabited buildings off mine property.'' 

Id. at 69600 (emphasis added). The Secretary's initial proposal 

was to create an MSHA table of distances that incorporated 

certain portions of the American Table of Distances. This MSHA 

table was opposed by the metal and nonmetal mining industry 

because: {l} the distances in the MSHA table as developed by the 

I nsti tute of Makers of Explosives were not designed to apply to 

buildings on mine property; (2} it would force placement of 

storage facilities closer to public roads and structures; and (3) 

4 73 
many mines could not comply with the MSHA table. Id. In 

addition, the Institute of Makers of Explosives objected to the 

inclusion of its distances in the MSHA table because ·it "never 

intended nor conducted any tests for usage of the distances with 

respect to occupied structures on mine property." Id. 

In the final rule, the Secretary dropped all references to 

the American Table of Distances and eliminated the MSHA table. 

The Secretary stated that "safety and hazard data collected over 

the last 20 years indicate that there have been few unplanned 

detonations of magazines or explosive material storage facilities 

and even fewer such detonations that have resulted in injury or 

death to miners." Id. at 69600- 601. The Secretary further 

stated that "application of the separation distances to occupied 

buildings and structures on mine property would cause a number of 

operators to go to considerable expense to relocate explosive 

material storage facilities within the mine site when the Agency 

cannot demonstrate supporting data or appreciable benefit at this 

time ." Id. at 69601. Finally, the Secretary stated: 

MSfU\ appreciates that (the adopted] standard 

uses\ perforrnance language and each facility 

will 'have to be evaluated on a case-by-case 

basis. Examples of factors which the agency 

contemplates considering are the types and 

quantity of explosive materials, the period 

of time which explosives are stored in the 

storage facility, and the space restrictions 

of the particular mine site. 

The citation issued by Inspector Holtz does not mention the 

Americ an Table of Distances or the proposed MSHA table. Unfortunately, Mr. Holtz has retired and was not deposed by the parties. 

In making its argument that the inspector issued the citation 

based on the American Table of Distances, Asarco relies heavily 

on its deposition of Richard Fisher, a physical:scientist with 

MSHA. Mr. Fisher drafted a report concerning explosives storage 

at the Black Cloud Mine after the citation was issued ·and recommended that the subject storage facility be moved. Asarco also 

r e lies on the deposition testimony of other MSHA officials inc luding Holtz's supervisor, Royal Williams; and Michael Music, 

another MSHA supervisor. Based on this deposition testimony, 

Asarco argues that the undisputed facts ''show that in i s suing and 

investigating the Citation, the Secretary exclusively relied on 

tables of distances which are not enforceable under 30 C. F.R. 

§ 57.6131." (Asarco Memorandum at 5). It also argues that this 

undisputed evidence demonstrates that the Secretary did not apply 

the factors adopted in lieu of a table of distances set forth in 

the preamble. Accordingly, Asarco contends that the MSHA's cita4 74 
tion "ran afoul of the long-settled and well-established principle that a federal 'agency must adhere to its own rules and 

regulations. '" (Id. at l · (citation omitted)) . 

The Secretary contends that the standard and the preamble 

do not prohibit the use of the American Table of Distances as a 

guideline and notes that the table is "widely accepted in industry as a guideline to determine distances of safety for explosives." (Secretary Motion at 4). In addition, he argues that 

the explosives "magazine was located in such proximity to the 

assay building as to present a hazard to miners working in that 

building ••.• 11 Id. The Secretary relies, in part, on the deposition testimony of Mr. Music that, if the magazine exploded, 

the explosion would cause serious harm or death to miners in the 

assay building. The Secretary states that the record demonstrates that there was a violation without reference to the 

American Table of Distances. 

I agree with Asarco that MSHA cannot rely on the American 

Table of Distances to prove a violation of section 57.6131. As 

stated in the preamble to the safety standard, the American Table 

of Distances does not govern safe distances between explosive 

storage facilities and buildings at a mine. As a result, the 

Secretary deleted all reference to this table and to a proposed 

MSHA table when the final rule was promulgated. In its place, 

the Secretary established a requirement that MSHA evaluate the 

hazard "on a case-by-case basis." 58 Fed. Reg. at 69601. The 

preamble to the standard states that a number of factors should 

be considered by MSHA inspectors and included, as examples, "the 

types and quantity of explosive materials, the period of time 

which explosives are stored in the storage facility , and the 

space restrictions at the particular mine site." Id. Thus, a 

citation that a lleges a violation of the safety standard on the 

basis of the American Table of Distances cannot be sustained. 

Asarco contends that the record establishes beyond any doubt 

that "MSHA made no ... determinations supporting the alleged violation" other than the rejected American Table of Distances. (A. 

Reply at 2). It argues that MSHA failed to con~ider the factors 

set forth in the preamble and failed to perform any calculations 

or a detailed analysis establishing that the miners in -the assay 

laboratory were at risk. I find that the record, as presented by 

the parties, does not establish that the Secretary "exclusively 

relied on the tables of distances" in determining that a violation of the safety standard existed. The citation and Inspector 

Holtz's notes do not mention the American Table of Distances. 

(S . Exs. A & B). While it appears that Mr. Fisher relied almost 

exclusively on this table, it is not clear that Mr. Music did. 

Mr. Music testified at his deposition that a detailed analysis 

was not necessary because the assay building was so close to the 

4 75 
magazine. In his opinion, based on his knowledge anq experience, 

the miners in the laboratory would be endangered if the magazine 

exploded. He stated that "you don't have to be a rocket scientist to figure ·out that if (the magazine] went off 'unplanned, 

that would be devastating to that mine building •••• " (S. Motion 

at 7, quoting Ex.Hat 17). Accordingly, the record contains 

evidence that the Secretary may be able to establish a violation 

without reference to the American Table of Distances. Thus, the 

secretary set forth specific facts showing that there is a 

genuine issue for hearing. 

Because a material fact is in dispute, Asarco's motion for 

summary decision is DENIED. 

B. The Secretary's motion for summary decision 

The Secretary contends that he is entitled to summary decision because there is no dispute that forces generated by the 

storage facility would create a hazard to the occupants of the 

assay laboratory. Asarco disputes this fact, however. Asarco 

has not admitted that the explosives storage facility created a 

hazard and it contends that MSHA did not correctly analyze the 

requisite factors when it issued the citation. For example, 

Asarco argues that the fact that the magazine was built into the 

side of the mountain protected the miners working in the assay 

laboratory and that MSHA did not take this fact into consideration. Asarco set forth specific facts showing that there is a 

genuine issue for hearing. 

Because a material fact is in dispute, the Secretary's 

motion for summary decision is DENIED. 

II. THE HEARING 

The hearing in this proceeding will commenqe. at 9:30 a.m. 

on Tuesday, April 16, 1996, in Denver, Colorado, as previously scheduled. There is no dispute that the explosives magazine at 

the Black Cloud Mine was a "storage facility" and that it contained "explosive material" as those terms are used in the safety 

standard. The issues at the hearing will include whether the 

magazine was located so that the "forces generated" by an explosion at the magazine "will not create a hazard to occupants in 

mine buildings." The Secretary bears the burden of proving that 

Asarco violated the safety standard and must establish that MSHA 

took into consideration such site-specific factors as the types 

and quantities of explosive materials in the magazine, the period 

of time that explosive materials are stored in the magazine, and 

4 7 6 
the space restrictions at the mine. The Secretary cannot rely on 

the American Table of Distances to prove its case. 

Distribution: 

Richard w. Manning 

Administrative Law Judge 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver~ co 80202-5716 

(Facsimile and U.S. Mail) ' 

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington, 

DC 20037-1350 (Facsimile and U.S. Mail) 

RWM 

477 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

PITTSBURG & MIDWAY COAL 

MINING COMPANY 

Respondent 

March 8, 1996 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 95- 13 

A.C. No. 29-00224-03643 

Cimarron Mine 

ORDER DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

This case is before me upon a petition for assessment of a 

civil penalty under Section 105{d) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S .C. § 801 et §.filL_ (the "Act " ). The 

parties filed a · joint motion to approve settlement for the two 

orders of withdrawal in this case. The parties agree that Order 

No. 3848263 should be withdrawn (vacated) and that the penalty 

proposed for Order No. 3848264 should be reduced from $7,500 .00 

to $3,750.00. 

Order No. 3848263 was issued under section 104(d) (2) of the 

Act for an alleged violation of 30 C.F.R. § 75 . 370(a) (1). In the 

motion, the Secretary agreed to vacate this order. Because the 

Secretary has the discretion to withdraw or vacate a citation or 

order of withdrawal issued under the Act, RBK Construction, Inc . , 

15 FMSHRC 2099, 2101 {October 1993), this part of the joint 

motion is accepted . 

Order No. 3848264 was issued under section 104{d) (2) of the 

Act for an alleged violation of 30 C.F.R. § 75.362{a) (2) . 

Section 75.362(a) (2) provides: 

Hazardous conditions shall be corrected 

immediately. If these conditions create an 

imminent danger, everyone ... shall be 

withdrawn from the area affected to a safe 

area until the hazardous condition is 

corrected. 

The order alleges that the longwall section foreman "failed 

to immediately correct the hazardous condition of a methane 

concentration greater than 6 percent just inby the pillar line 

for the longwall gob shield and the improper air movement of the 

gob air to the active workings at the longwall tailgate." The 

478 
citation further alleges that when the foreman was informed of 

these conditions, he did not withdraw miners to a safe area but 

continued mining operations. 

The joint settlement motion provides, in pertinent part: 

Investigation into this 104(d) (2) order 

and the inspector's and investigator's 

factual findings support the issuance of the 

violation. 

The parties agree that Order No. 3848264 

should be affirmed in all particulars but 

that the special assessment of $7 , 5 00.00 

should be amended to $3,750.00. The basis 

for the mitigation are the Respondent's 

concession of the violation and Respondent' s 

good faith negotiations. Additionally, 

Respondent previously paid a penalty 

assessment of $17,500 for Citation No. 

3589770 and Order No. 3589771 (Docket No . 

CENT 94-47) which addressed the same period 

and similar omissions as Order No. 3848264 

addresses. 

Accordingly, the parties agree that the 

proposed reduction in the s pecially assessed 

penalty is fair, reflects full consideration 

of the statutory criteria set forth in 

Section lOS(b} {l}(B} of the Act, •.• and 

justly addresses Respondent's culpability. 

Motion at 3-4. 

I cannot approve the proposed settlement of Order No. 

3848264. The Commission and its judges are requi red t o review 

proposed settlements pursuant to section llO(k) of the Act. 30 

u.s.c. § 820(k); See, s. Rep. No. 181, 95th Cong., 1st Sess. 44-

45 (1977), reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95th Cong., 2d Sess., Legislative History of 

the Federal Mine Safety and Health Act of 1977, at 632-33 (197 8 ). 

It is the judge's responsibility to determine th~ appropriate 

amount of penalty, in accordance with the six c riteria in section 

llO(i) of the Act. 30 u.s.c. § 820(i ); Sellersburg Stone Co . v. 

FMSHRC, 736 F.2d 1147 (7th Cir. 1984). A proposed r eduction must 

be based o n a consideration of the civil p enalty criteria in 

section llO(i ) ._ 

It appears that the parties agree that MSHA correctly 

evaluated the civil penalty criteria when it proposed the $7 , 50 0 

penalty. It further appears that they seek a reduction in the 

penalty based not on a reevaluation of this criteria but o n 

4 79 

.. ·.: 
factors that are not included in section llO{i), such as 

Respondent's demonstrated good faith during settlement 

negotiations. In addition, the joint motion does do not explain 

the relationship between the penalty Respondent paid in CENT 94-

47 and the proposed reduction in the penalty in the present case. 

In light of the foregoing, the joint motion for approval of 

settlement is DENIED • . on or before April 9, 1996, the parties 

shall submit additional information and offer a more complete 

explanation of their agreement in support of the motion for 

settlement. Otherwise, this case will be set hea~·..-.....~ 

Distributi on: 

Richard W. Manning 

Administrative Law Judge 

Robert A. Goldberg, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 

John W. Paul, Esq, PITTSBURG & MIDWAY COAL MINING COMPANY, P.O. 

Box 6518. Englewood, co 80155-6518 

RWM 

•u.s. Govemment Printing Offoc:e: 1996 • 405-710/53378 4 80 

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