DECEMBER 1998 

COMMISSION DECISIONS AND ORDERS 

12-10-98 Harlan Cumberland Coal Company 

12-15-98 Sec. Labor on behalf of Kenneth Hannah, et al. 

v. Consolidation Coal Company 

12-18-98 Gabel Stone Company, Inc. 

12-18-98 Arch of Kentucky 

07-02-98 Eastern Ridge Lime, L.P. (previously unpublished) 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-01-98 Respirable Dust Sample Alteration Citations 

12-02-98 Consolidation Coal Company 

12-08-98 STS Gravel 

12-09-98 Sec. Labor on behalf of Danny Brown v. 

Consolidation Coal Company 

12-10-98 John D. Lehoux v. Plourde Sand & Gravel 

12-11-98 Bellefonte Lime Company, Inc. 

12-22-98 Island Creek Coal Company 

12-24-98 Sec. Labor on behalf of Paul Middleton v. 

J & C Mining, LLC 

11-17-98 Plourde Sand & Gravel (previously unpublished) 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-10-98 Independence Mining Co., Inc., 

12-14-98 The Doe Run Company 

i 

KENT96-254 

LAKE 94-704-D 

CENT99-5-M 

KENT 97-197 

VA 96-21-M 

Master Docket 91-1 

WEVA 93-146-B 

WEST 97-284-M 

LAKE 97-88-D 

YORK 98-36-DM 

PENN 95-467 

VA 99-11-R 

KENT 99-60-D 

YORK 98-56-M 

WEST 98-98-M 

CENT 98-83-RM 

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Pg. 1293 

Pg. 1316 

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Pg. 1335 

Pg. 1336 

Pg. 1356 

Pg. 1365 

Pg. 1383 

Pg. 1393 

Pg. 1395 

Pg. 1400 

Pg. 1402 

Pg. 1407 

Pg. 1410 

DECEMBER 1998 

There were no cases filed in which Review was Granted or Denied for December. 

ii 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

HARLAN CUMBERLAND 

COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 10, 1998 

Docket Nos. KENT 96-254 

KENT 96-320 

KENT 96-321 

KENT 96-322 

KENT96-333 

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

DECISION 

BY THE COMMISSION: 

These consolidated civil penalty proceedings arise under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). At issue are: whether Harlan 

Cumberland Coal Company ("Harlan") committed a significant and substantial ("S&S") 

violation of30 C.F.R. § 75.202(a) by failing to remove drawrock from roof support straps along 

the main intake roadway; whether Harlan committed an S&S violation of30 C.F.R. § 75.220 by 

impermissibly deviating from the pillaring provisions of its roof control plan; whether Harlan 

committed an S&S violation of30 C.F.R. § 75.l 106-3(a)(2) by improperly storing compressed 

gas cylinders; whether Harlan committed S&S violations of 30 C.F.R. § 75.604(b) by failing to 

insulate and seal two permanently spliced trailing cables to exclude moisture; whether Harlan 

committed an S&S violation of 30 C.F.R. § 75.517 by failing to adequately insulate and fully 

protect a power cable; and whether Harlan violated 30 C.F.R. § 75.400 by allowing float coal 

dust to accumulate on energized power conductors. Administrative Law Judge David Barbour 

concluded that Harlan committed S&S violations of sections 75.202(a), 75.220, 75.1106-3(a)(2), 

75.517, 75.400, and two"S&S violations of section 75.604(b). 19 FMSHRC 911(May1997) 

(ALJ). 1 The Commission granted Harlan's petition for discretionary review ("PDR") 

1 Judge Barbour approved settlements of numerous other alleged violations in the 

consolidated dockets. 19 FMSHRC at 950-55. 

1275 
challenging these determinations. For the reasons that follow, we affirm in part, reverse in part, 

and remand for reassessment of civil penalties. 

I. 

Citation No. 4243656 

A. Facts and Procedural Background 

Harlan operates the C-2 Mine, an underground coal mine in Harlan County, Kentucky. 

Id. at 912. The roof above the main intake roadway is supported by bolts. Id. at 913. At various 

locations, steel straps are bolted to the roof perpendicular to the roadway to supplement the roof 

bolts. Id.; Tr. 34-35. The straps are approximately 13 to 14 feet long and 8 inches wide. 19 

FMSHRC at 913. The straps are centered approximately four feet apart. Id.; Tr. 35. During an 

inspection on March 11, 1996, Inspector Larry Bush from the Department of Labor's Mine 

Safety and Health Administration ("MSHA") observed that the roof along the main intake 

roadway contained several areas of loose hanging drawrock.2 19 FMSHRC at 913; Tr. 29. Some 

of this rock was loose and wedged between other rocks, and some lay suspended on or between 

the straps. Tr. 29. The drawrock measured between one inch and one foot thick. 19 FMSHRC 

at 913. Bush issued a citation alleging an S&S violation of 30 C.F.R. § 75.202(a).3 Gov't Ex. P5. 

After a hearing, the judge concluded that the Secretary had proven a violation of section 

75.202(a) by demonstrating that drawrock at various points along the intake roadway was 

hanging and ready to fall. 19 FMSHRC at 914. The judge designated the violation S&S due to 

the likelihood of an eventual rock fall and the serious danger posed by the loose hanging rocks. 

Id. at 914-15. In reaching these determinations, the judge relied on Inspector Bush's testimony, 

which was based on Bush's first-hand observation of the roof conditions. Id. at 914. 

B. Disposition 

1. Violation 

Harlan contends that the drawrock was supported within the meaning of the standard. 

PDR at 3. The Secretary responds that substantial evidence supports the judge's finding of a 

2 Bush described drawrock as "rock that's just above the coal seam between the coal 

seam ... and ... the immediate roof ... [and that] tends to separate from the main roof." Tr. 21. 

3 30 C.F.R. § 75.202(a) provides: "The roof, face and ribs of areas where persons work 

or travel shall be supported or otherwise controlled to protect persons from hazards related to 

falls of the roof, face or ribs and coal or rock bursts." 

1276 
violation. S. Br. at 14-16. The Secretary argues that the judge properly credited and relied upon 

Inspector Bush's testimony in reaching his finding. Id. 

The Secretary's roof control standard is broadly worded. See 30 C.F.R. § 75.202(a). 

Accordingly, we have held that "the adequacy of particular roof support or other control must be 

measured against the test of whether the support or control is what a reasonably prudent person, 

familiar with the mining industry and protective purpose of the standard, would have provided in 

order to meet the protection intended by the standard." Canon Coal Co., 9 FMSHRC 667, 668 

(Apr. 1987) (cited in Helen Mining Co., 10 FMSHRC 1672, 1675 (Dec. 1988)). 

The parties do not dispute that drawrock was present on and above the straps. Tr. 21, 37. 

They disagree, however, on the dangers posed by loose hanging drawrock. Harlan's safety 

director, Eddie Sargent, testified that Harlan employees are instructed to remove drawrock that 

appears dangerous. Tr. 33, 36. Based on information given to him by Harlan's superintendent, 

Sargent believed the position of the drawrock leading to the citation did not warrant immediate 

correction. Tr. 37-38. Sargent testified that prematurely removing drawrock increases, rather 

than decreases, the danger of rock falls. Tr. 38. Conversely, Inspector Bush, who had five years 

of experience inspecting the C-2 mine (Tr. 20), testified that simply because drawrock is lying on 

a strap does not mean that it will remain there. Tr. 30. He stated that the drawrock he observed 

was "loose" and could fall ''within a short period of time." Tr. 23. 

A judge's credibility determinations are entitled to great weight and may not be 

overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); 

Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). We have recognized that, because 

the judge has an opportunity to hear the testimony and view the witnesses, he is ordinarily in the 

best position to make a credibility determination. In re: Contests of Respirable Dust Sample 

Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) ("Dust Cases") (quoting Ona Corp. 

v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)). 

The judge credited Inspector Bush's testimony that the drawrock was hanging and ready 

to fall. 19 FMSHRC at 914. We see no basis for overturning the judge's crediting of the firsthand observations of Bush over the testimony of Harlan's safety director, who did not personally 

view the roof conditions. We also conclude that the judge correctly determined that a reasonably 

prudent person, familiar with the mining industry and the protective purpose of the standard, 

would have removed the drawrock upon observing that large, loose slabs, which appeared ready 

to fall, were hanging from the roof and lying on straps above the intake roadway. Accordingly, 

1277 
we find that substantial evidence4 supports the judge's determination that Harlan violated section 

75.202(a), and affirm his finding of violation. 

2. Significant and Substantial 

Harlan challenges the judge's S&S finding, asserting that the evidence fails to establish 

"a reasonable likelihood that the hazard contributed to will result in an injury." PDR at 4 

(quoting Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984)). The Secretary responds that 

substantial evidence supports the judge's designation of the violation as S&S. S. Br. at 16. 

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 'l Gypsum Co., 3 

FMSHRC 822, 825 (Apr. 1981). In Mathies, we 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. 

Mathies, 6 FMSHRC 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, 861F.2d99, 103 (5th 

Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury 

should be made assuming continued normal mining operations. U.S. Steel Mining Co., 7 

FMSHRC 1125, 1130 (Aug. 1985). 

At issue is the third Mathies element. We have noted that an inspector's judgment is an 

important element in an S&S determination. Mathies, 6 FMSHRC at 5 (citing National Gypsum, 

3 FMSHRC at 825-26); see also Buck Creek Coal, 52 F.3d at 135-36 (stating that ALJ did not 

abuse discretion in crediting opinion of experienced inspector). Here, the judge credited 

4 When reviewing an administra~ive law judge's factual determinations, the Commission 

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

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

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

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

U.S. 197, 229 (1938)). 

1278 
Inspector Bush's testimony that the hanging drawrock, which he found to be loose and ready to 

fall, posed a reasonable likelihood of serious injury to miners traveling the roadway below and, 

therefore, the violation was S&S. 19 FMSHRC at 914-15. Bush testified that once the rock is 

broken loose, that does not mean that it will remain directly above the strap. Tr. 30. Harlan also 

acknowledged that drawrock had previously fallen and injured a miner's foot, an injury that kept 

the miner out of work for a week. Tr. 39. Most importantly, Bush testified that a roof fall could 

happen at any time - in fact, he believed a fall was virtually imminent. Tr. 23. 

In sum, we find that substantial evidence supports the judge's determination that Harlan's 

violation of the standard was S&S. Accordingly, we affirm his S&S determination.5 

II. 

Citation No. 4243921 

A. Facts and Procedural Background 

On March 11, 1996, Harlan was in the process of retreat mining on the 005 section of the 

C-2 Mine.6 19 FMSHRC at 920. The approved mining sequence for pillar extraction is set forth 

in the mine's roof control plan. Gov't Ex. P-10. Under the prescribed sequence, a cut is made in 

the middle of the pillar (the "key cut") and the roof is then supported by roof bolts. 19 FMSHRC 

at 920. The second cut is made from the opposite side of the pillar, splitting the pillar in two. Id. 

The two portions of the pillar are called ''wings." Id. Each wing is then extracted in the 

sequence described in the roof control plan. Id.; Gov't Ex. P-10. The plan also specifies other 

permissible mining sequences, including a two-pillar sequence and an alternative mining 

sequence. Gov't Ex. P-10 at 134, 136. In addition, the plan permits deviation from the required 

5 Commissioner Marks agrees that this violation and those contained in citations 

4250669, 4250624, and 4250670 are S&S. However, for the reasons set forth in his concurring 

opinions in U.S. Steel Mining Co., 18 FMSHRC 862, 868-75 (June 1996), and Buffalo Crushed 

Stone, Inc., 19 FMSHRC 231, 240 (Feb. 1997), he continues to urge that the ambiguous language 

of the Commission's Mathies test, 6 FMSHRC at 3-4, be replaced with a clear test that is 

consistent with Congressional intent. On February 5, 1998, MSHA issued a lengthy 

Interpretative Bulletin, setting forth a new agency interpretation of S&S and announcing that 

MSHA would challenge the Commission's narrow interpretation ofS&S. 63 Fed. Reg. 6012 

(1998). However, on April 23, 1998, MSHA suspended that Interpretive Bulletin with little 

explanation. Id. at 20,217. Commissioner Marks is curious as to MSHA's change in position on 

the S&S question and requests that the Secretary promptly advise him on this important issue. 

6 Retreat mining is the extraction of the pillars remaining after advance mining. 19 

FMSHRC at 920. 

1279 
mining sequence when adverse conditions are encountered, provided that equivalent pillar 

support is maintained under the alternate method. Id. at 116. 

During his March 11 inspection, Inspector Bush came upon a row of six pillars, -

numbered from left to right as 1, 3, 6, 7, 2, and 4-four of which had already been mined. He 

observed that pillars 1 and 3 had been mined from right to left and that pillars 2 and 4 had been 

mined from left to right. 19 FMSHRC at 921. He further observed that pillars 6 and 7 were 

being cut straight ahead at the time of inspection. Id. Bush interpreted the roof control plan as 

mandating that the entire row of pillars be key cut in the same direction, and he concluded that 

Harlan's failure to do so constituted an S&S violation of the plan and 30 C.F.R. § 75.220. Gov't 

Ex. P-12. 

The judge concluded that Harlan violated the plan by mining the key cuts in different 

directions. 19 FMSHRC at 923. The judge vacated the S&S designation, finding that the 

Secretary failed to establish that there was a reasonable likelihood that the hazard contributed to 

would result in an injury. Id. at 923-24. 

B. Disposition 

Harlan contends that the judge erred in finding that the Secretary proved a violation, 

arguing that adverse conditions made mining the entire row of pillars in the same direction 

impractical, thereby permitting deviation from the mining sequence described in the roof control 

plan. PDR at 5-10. Harlan further alleges that "nothing in the plan requires a return to the 

original direction of [key] cuts after adverse circumstance [sic] prompt a deviation." Id. at 9. 

The Secretary responds that substantial evidence supports the judge's finding that Harlan 

violated section 75.220 by deviating from the pillar cutting sequence described in the mine's roof 

control plan. S. Br. at 18-21. The Secretary argues that "although the existence of a swag and 

low roof may have made it impractical to cut pillars 2 and 4 from right to left, Harlan identified 

no reason why it would have been impractical to cut pillar 7 from right to left." Id. at 18. 

To prove a violation of a mine plan, the Secretary must first establish that the provision 

allegedly violated is part of the approved and adopted plan. Jim Walter Resources, Inc., 

9 FMSHRC 903, 907 (May 1987). She must then prove that the cited condition or practice 

violated the provision. Id. When a plan provision is ambiguous, the Secretary may establish the 

meaning intended by the parties7 by presenting credible evidence as to the history and purpose of 

the provision, or evidence of consistent enforcement. Id. 

7 Cf 9 FMSHRC at 907 ("The ultimate goal of the [mine plan] approval and adoption 

process is a mine-specific plan with provisions understood by both the Secretary and the operator 

and with which they are in full accord."). 

1280 
Here, the issue is whether, as the Secretary alleges, Harlan's plan required the operator to 

return to the original mining direction to remove pillars six and seven after adverse conditions 

required a deviation in direction to remove pillars two and four. We conclude it did not. The 

plan contains no such explicit requirement.8 Additionally, the Secretary's evidence fails to 

demonstrate a "meaning intended by the parties." See id. The Secretary did not present any 

evidence of prior consistent enforcement of the mining direction requirements of the plan that 

would have demonstrated that Harlan was on notice regarding the Secretary's interpretation of 

the plan. Cf id. at 908 .. Moreover, considering the location of pillars six and seven, we conclude 

that the Secretary's argument in this case is actually at odds with the broad purpose of the plan to 

protect miners from dangerous roof conditions. 

Harlan asserts that "it was SAFER to attack [pillars 6 and 7] head on .... [I]t would have 

been crazy to ... drag men and equipment around into an area that was ( 1) already pillared, with 

the attendant roof weakening that results, and (2) already suffering from bad mining .... " PDR 

at 9 (emphasis in original). We agree. A review of the mining sequence clearly establishes that 

attempting to mine pillar seven from right to left, as the Secretary suggests, would have required 

miners to enter an area where the mine roof had already been substantially compromised due to 

the extraction of pillars two and four. This mining approach would have subjected miners to an 

extremely dangerous and unpredictable area of mine roof. In retreat mining, standing pillars 

serve as roof support, and the extraction of the pillars weakens the roof above the area where the 

pillar stood. Moreover, once a pillar is removed, the mine roof is also weakened in the areas 

immediately surrounding a removed pillar - such as entries and intersections - rendering these 

areas impassable because of the danger of an imminent roof collapse without warning.9 

In the instant case, MSHA's trial exhibit P-11 clearly illustrates that at the time Inspector 

Bush entered the area in question, the mine roof was compromised in the areas where pillars two 

8 The relevant plan provision states: 

The standard cut sequence as indicated may be deviated 

from where adverse conditions make it impractical to attack a pillar 

in the locations indicated. Such deviation is permitted only where 

equivalent pillar support is maintained in the alternate method. 

More than one pillar may be worked in cycle, provided that 

the same sequence of recovery and support is followed. 

Gov't Ex. P-10 at 116, 135. 

9 Here, the roof control plan provides: "While using remote controls, the continuous 

mining machine operator and other persons will position themselves[] [ u ]nder permanently 

supported roof." Gov't Ex. P-10 at 118. 

1281 
and four formerly. stood, but more importantly was also compromised in the surrounding entries 

and intersections up to the right comer of pillar seven, thereby eliminating the possibility that 

pillar seven could be mined from right to left. See Gov't Ex. P-11. The procedure suggested by 

the inspector who filed the citation, considering that he was a roof control specialist, astonishes 

us. In fact, attempting to mine pillar seven from right to left, which was the logical outgrowth of 

Inspector Bush's interpretation of the plan, would have required miners to enter an unpredictable 

and highly unstable area to commence mining, and would have been extremely dangerous. The 

judge was, therefore, incorrect in finding that "there [was] no reason apparent why pillar No. 7 

could not have been cut .from right to left." 19 FMSHRC at 923. Mining pillar seven straight 

ahead was the only option available to extract the pillar in a safe manner, and in a manner that 

was also consistent with the company's roof control plan. 10 

Accordingly, we reverse the judge's determination that Harlan's mining of pillar seven 

straight ahead violated the roof control plan. We also vacate the civil penalty assessed by the 

judge. 

III. 

Citation No. 4243726 

A. Facts and Procedural Background 

During an inspection of the 004 section of the C-2 Mine on February 27, 1996, MSHA 

inspector Robert Clay observed an oxygen tank and an acetylene tank leaning against the rib of a 

coal pillar in an active roadway. 19 FMSHRC at 924. Clay determined that the roadway was 

used by "very large [mobile] equipment" and that this equipment passed within one foot of the 

tanks. Id. at 925. Clay did not examine the tanks to determine whether they contained any 

oxygen or acetylene. Id. at 924. Based on his determination that the tanks were not secured in 

an upright position, Clay issued a citation alleging an S&S violation of 30 C.F.R. § 75. l 106-

3(a)(2).11 Gov't Ex. P-3. 

Judge Barbour concluded that Harlan violated section 75.1106-3(a)(2) by failing to secure 

the gas tanks against accidentally tipping over. 19 FMSHRC at 925. He noted that the possible 

absence of gas from the tanks was immaterial, since the standard draws no distinction between 

full and empty tanks. Id. The judge also affirmed Inspector Clay's S&S designation, relying on 

10 See Gov't Ex. P-10 at 132. 

11 30 C.F.R. § 75.1106-3(a) provides in pertinent part: "Liquefied and nonliquefied 

compressed gas cylinders stored in an underground coal mine shall be ... [p ]laced 

securely ... in an upright position ... or otherwise secured against being accidentally tipped 

over." 

1282 
Clay's testimony regarding the extreme hazard posed by acetylene and oxygen gas and the 

proximity of the gas tanks to the path of mobile equipment. Id~ at 925-26. However, the judge 

specifically found that the inspector "did not know if any oxygen or acetylene remained in the 

tanks." Id. at 924 (citing Tr. 104). 

B. Disposition 

Harlan argues that the judge erred in finding the violation of section 75.1106-3(a)(2) to be 

S&S, contending that since the Secretary produced no proof that the tanks contained anything, 

"there is no evidence in the record to support a finding of a 'reasonable likelihood' that the 

condition cited would result in injury." PDR at 13. 12 The Secretary responds that the judge 

properly credited Inspector Clay's testimony regarding the dangers of oxygen and acetylene 

ignitions, and that substantial evidence supports the judge's designation of the violation as S&S. 

S. Br. at 22-23. The Secretary asserts that it is "reasonably likely" that gas was in the cylinders 

because the tanks "were in a working area where gas might well be used." Id. at 23. The 

Secretary also notes that Harlan never gave any indication that the tanks did not contain gas and 

that section 75. l 106-3(a) draws no distinction between cylinders containing gas and empty 

cylinders. Id. 

When evaluating the reasonable likelihood of a fire, ignition, or explosion, we have 

examined whether a "confluence of factors" was present based on the particular facts 

surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988). We also have 

indicated that proof of a fuel source is necessary to establish the reasonable likelihood that the 

hazard contributed to will result in injury. Id. at 503. 

At issue here is the third Mathies element. The judge made no explicit finding 

concerning whether the tanks contained fuel. His view that the presence of fuel was 

"immaterial" to the violation question further indicates that he felt no finding was required. See 

19 FMSHRC at 925. Under Texasgulf, however, such a finding is a prerequisite to an S&S 

determination. Texasgulf, 10 FMSHRC at 501. By arguing that the location of the tanks in a 

work area makes it "reasonably likely" that the tanks contained fuel, the Secretary is in essence 

asking the Commission to make an inference at the appellate level. We decline this invitation. It 

is for the judge in the first instance, not the Commission on review, to make inferences and 

findings based on record evidence. See Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1139 

(May 1984) ("It is ... the judge's duty to draw conclusions from the record .... "); Garden 

Creek Pocahontas Co., 11 FMSHRC 2148, 2152-53 (Nov. 1989). We conclude that the judge's 

failure to apply Texasgulf, and his consequent failure to make the necessary factual finding as to 

the presence of fuel in the tanks required by that precedent, constitute error. 

12 Harlan does not challenge the judge's finding of violation. 

1283 
We further conclude that remand is unnecessary because this record cannot support a 

finding that the Secretary met her burden of proving that the tanks contained fuel. 13 The 

Secretary does not quarrel with the judge's finding that Inspector Clay "did not know whether 

the cylinders contained oxygene [sic] and acetylene." 19 FMSHRC at 925. Furthermore, the 

Secretary presented no direct evidence that the tanks contained fuel. In addition, we find 

unpersuasive the Secretary's contention, advanced for the first time on review, that the tanks' 

location in a work area makes the presence of fuel "reasonably likely." The fact to be inferred 

must be "inherently reasonable and there must be a rational connection between the evidentiary 

facts and the ultimate fact inferred." Garden Creek, 11 FMSHRC at 2153. The alleged presence 

of fuel in the tanks is not rationally connected to the presence of the tanks in a work area. 

Without any evidence about when the tanks arrived in the work area, when if ever they were last 

used, their weight, or company practice in dealing with such tanks, their presence in the work 

area says nothing about whether they contained fuel. Further, "recognition of an inference is 

largely influenced by the difficulty of obtaining the direct evidence necessary to establish the fact 

to be inferred." Id. (citing Mid-Continent, 6 FMSHRC at 1138). Here, the Secretary has made 

no showing that proof of the presence of fuel was "unavailable to the Secretary or was 

unreasonably difficult to obtain." See id. Indeed, the presence of fuel in the tanks would appear 

to be readily provable. 

In sum, because the record supports only the conclusion that the Secretary failed to carry 

her burden of proof as to the critical element of a fuel source, substantial evidence does not 

support the judge's S&S designation. Accordingly, we reverse the judge's determination that 

this violation was S&S, and remand for reassessment of the penalty. 

IV. 

Citation Nos. 4250669 and 4250624 

A. Facts and Procedural Background 

On May 8, 1996, during an inspection of the 004 section, Inspector Clay noticed a 

defective permanent splice on the trailing cable to the section's roof bolting machine. 19 

FMSHRC at 930. Clay testified that he could see into the splice of the cable, which carried 480 

volts of electricity. Id. at 930-31; Tr. 107. 

13 We have held that the Secretary bears the burden of proving the significant and 

substantial nature of a violation. Union Oil Co. of Cal., 11FMSHRC289, 298 (Mar. 1989); U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). The Secretary's contention that Harlan 

gave no indication that the tanks did not contain gas erroneously places the burden of 

establishing that a violation is S&S on the operator. 

1284 
On May 14, 1996, during an inspection of the 005 section, Clay noticed an improperly 

insulated permanent splice on the trailing cable from the section's continuous miner. 19 

FMSHRC at 934; Tr. 113. Clay testified that he could see into the cable, which carried 995 volts 

of electricity. 19 FMSHRC at 934-35; Tr. 114. 

Clay determined that neither splice was insulated as to exclude moisture, as required by 

30 C.F.R. § 75.604(b). 14 19 FMSHRC at 930, 934. He issued two citations alleging violations of 

section 75.604(b). Gov't Ex. P-26; Gov't Ex. P-36. He designated both violations S&S, noting 

that the cables are handled frequently by miners. Gov't Ex. P-26; Gov't Ex. P-36; Tr. 115. 

The judge affirmed both citations, stating that "[a]n open splice is not effectively 

insulated and sealed to exclude moisture." 19 FMSHRC at 935. The judge relied on Clay's 

unrefuted testimony that the 004 MMU trailing cable splice was open and damp, and his 

testimony that the 005 MMU trailing cable splice was open. Id. at 931, 935. The judge also 

affirmed both S&S designations, emphasizing the potentially fatal hazard created by 

inadequately insulated high-voltage cables, parts of which lay in water, and which miners 

handled frequently. Id. 

B. Disposition 

Harlan contends that the judge erred in designating the violations S&S. 15 PDR at 13-16. 

The operator argues, with respect to both violations, that there were no exposed copper leads and 

that the Secretary failed to prove "that anyone was or would be exposed to electrical current by 

handling the cable." Id. at 15, 16. Harlan also alleges that Clay's testimony that there is "[no] 

way of knowing" whether an accident would occur manifests a lack of evidence "that an injury 

of any consequence was 'reasonably likely."' Id. at 15 (emphasis in original). Regarding the 

005 MMU citation, Harlan also asserts that the judge's finding that a miner "could receive a 

serious electrical burn" does not satisfy the "reasonable likelihood" standard in Mathies. Id. at 

14-15. 

The Secretary responds, with respect to both violations, that substantial evidence supports 

the judge's S&S designations. S. Br. at 23. She argues that the judge properly credited Clay's 

testimony on the factors contributing to a reasonable likelihood of injury. Id. at 24. The 

Secretary also contends that Harlan's assertion that there were no copper leads exposed does not 

preclude an S&S finding, because unseen holes may be present in the insulation around the 

conductors. Id. at 25. 

14 30 C.F.R. § 75.604 provides in pertinent part: "When permanent splices in trailing 

cables are made, they shall be ... [ e ]ffectively insulated and sealed so as to exclude 

moisture .... " 

15 Harlan does not challenge the judge's findings of violations. 

1285 
We are unpersuaded by Harlan's chief argument that a reasonable likelihood of injury 

under the third Mathies element cannot be established if the Secretary has not shown that there 

were exposed copper leads by which a miner could be electrocuted. PDR at 15-16. In U.S. Steel 

Mining Co., 6 FMSHRC 1573 (July 1984), we held that four inches of exposed wire constituted 

an S&S violation, despite lack of direct evidence that the exposed wires were not insulated. With 

regard to the 004 MMU citation, Inspector Clay testified that he could see into the splice, but 

could not see copper wire. Tr. 108. Similarly, with regard to the 005 MMU citation, he testified 

that he could see into the open splice, but could not see bare conductors. Tr. 118. However, 

Clay emphasized the danger of these situations, stating that "there's no way of knowing [whether 

there are holes in the insulation surrounding the wire within the cable]." Tr. 108; cf U.S. Steel, 6 

FMSHRC at 1574-75 (recognizing that a tear in the outer jacket of a cable significantly 

compromises the cable's protective function). Inspector Clay also testified that, even if no 

copper wires are exposed, there is a danger of electrocution, because "[ m ]uch like an extension 

cord with a naked place, you may not be able to see the naked place, but you grab a hold of it and 

you'll know it." Tr. 109. 

Other record evidence supports the judge's determination that those violations were 

reasonably likely to result in serious injury. Parts of both cables were lying in water, and one of 

the splices was open and damp. 19 FMSHRC at 931, 935; Tr. 108-09, 115. The Commission in 

U.S. Steel regarded the potential effect of water on the electrical hazard posed by a violation "as 

an example of how conditions could develop in the mining environment which could cause an 

improperly protected cable to become more dangerous." U.S. Steel, 6 FMSHRC at 1574. As 

Clay testified, water is an efficient conductor of electricity. Tr. 107, 115. Moreover, during the 

course of their work, miners frequently moved both cables with their hands rather than with 

ropesor"hotsticks." 19FMSHRCat931,935;Tr.108-110, 112, 115-117. 

In sum, the record as a whole supports the judge's conclusion that, under continued 

normal mining operations, both violations of section 75.604(b) were reasonably likely to 

contribute to a serious electrical injury or fatality. Accordingly, we affirm the judge's 

determinations that Harlan's section 75.604(b) violations were S&S. 

v. 

Citation No. 4250670 

A. Facts and Procedural Background 

On May 8, 1996, during an inspection of the 004 section, Inspector Clay noticed a readily 

visible rupture in the outer jacket of the trailing cable of the sections's roof bolting machine. 19 

FMSHRC at 932; Tr. 141. Clay concluded that, since the insulated power conductors inside the 

jacket were exposed, the trailing cable was not insulated and protected as required by 30 C.F.R. 

1286 
§ 75.517. 16 19FMSHRCat932;Tr.141. Clayissuedacitationallegingaviolationofsection 

75.517, and designated the violation S&S, noting that the cable is handled frequently by miners. 

Gov't Ex. P-27. 

The judge affirmed the citation, stating that "[a] cable with an opening in its outer jacket 

through which its interior insulated conductors are exposed is not a fully protected cable." 19 

FMSHRC at 933. He further found that "when the jacket is ruptured, the cable is not insulated as 

designed." Id. The judge affirmed the S&S designation, crediting Clay's inference that any 

force sufficient to rupture the outer cable necessarily damaged the internal conductors. Id. at 

933-34. 

B. Disposition 

Harlan argues that the judge erred in designating the violation S&S. 17 PDR at 17. Harlan 

asserts that the judge erred in overruling its objection to Clay's speculative testimony that, based 

on his visual observation of the cable's ruptured outer jacket, the interior conductors were 

damaged as well. Id. 19-20. According to Harlan, the judge compounded the error by relying on 

this testimony to reach his S&S determination. Id. at 20. The Secretary responds that substantial 

evidence supports the judge's determination that Harlan's violation of section 75.517 was S&S. 

S. Br. at 26. She argues that the judge correctly credited Clay's testimony that any force 

sufficient to rupture the cable's outer jacket would necessarily have damaged the conductors 

inside. Id. at 26-27. 

The issue on review is again the third Mathies element: whether there exists "a 

reasonable likelihood that the hazard contributed to will result in an injury." See Mathies, 6 

FMSHRC at 3-4. Harlan's argument that reasonable likelihood of injury cannot be established if 

the record lacks direct evidence of damaged interior conductors or proof of the existence of 

exposed, uninsulated wire is inconsistent with Commission precedent. In US. Steel, the parties 

agreed that the outer jacket of a cable had ruptured, but the Secretary presented no direct 

evidence that the inner insulation was compromised. US. Steel, 6 FMSHRC at 1573-74. There, 

we held that the gash in the outer jacket of the trailing cable constituted an S&S violation of 

section 75.517, in part because in the "harsh environment of a coal mine," a tear in the outer 

jacket weakens the protection afforded by the inner insulation, "contribut[ing] significantly and 

substantially[] to the cause and effect of a safety hazard." Id. at 1574-75. Similarly, in this case 

the outer jacket of a trailing cable was tom, but there is no direct evidence that the inner 

insulation was damaged. Cf id.; see also US. Steel Mining, Inc., 7 FMSHRC 327, 329 (Mar. 

1985) (affirming S&S designation and noting that "[t]he fact that the insulation was not cut at the 

16 30 C.F .R. § 7 5 .517 provides in pertinent part: "Power wires and cables ... shall be 

insulated adequately and fully protected." 

17 The operator does not contest the judge's finding of violation. 

1287 
time the violation was cited does not negate the possibility that the violation could result in 

[electrocution]"). The circumstances in the instant case are similar to those in U.S. Steel, 6 

FMSHRC 1573, which we find persuasive in this matter. Moreover, we have already held that 

the Secretary need not show the presence of exposed copper leads to establish the reasonable 

likelihood of injury from a violation of section 75.604, which contains an insulation requirement 

for permanent splices similar to the insulation requirement in section 75.517. Slip op. at 12. 

There is no dispute that the rupture in the outer jacket of the trailing cable compromised a 

layer of insulation between miners and a potentially fatal 480 volt current. See Tr. 141. In 

addition, the judge credited Inspector Clay's testimony that invisible damage can exist in the 

internal insulation surrounding the conductors, and that even a pinhole-sized breach can conduct 

enough current to electrocute a miner. 19 FMSHRC at 933; Tr. 142, 145. We see no reason to 

disturb the judge's decision to credit this testimony. 18 See Dust Cases, 17 FMSHRC at 1878 

(upholding judge's credibility determination), citing Ona Corp., 729 F.2d at 719. Clay's 

testimony supports the judge's conclusion that the rupture in the outer cable increased the 

likelihood of serious electrical injury. The judge's conclusion is bolstered by the presence of 

water and the high frequency with which the cable is manually handled during normal mining 

operations. 19 See 19 FMSHRC at 933; Tr. 143. Therefore, we find that substantial evidence 

supports the judge's S&S designation, and we affirm it. 

VI. 

Citation No. 4250672 

A. Facts and Procedural Background 

On May 8, 1996, during an inspection of the 004 section of the mine, Inspector Clay 

observed what he believed to be an accumulation of combustible material on a piece of electrical 

equipment. Gov't Ex. P-30. Clay made this observation by visual inspection through a 

plexiglass window, and determined that the material was "float coal dust." Id.; Tr. 155. Clay 

18 We do not rely upon the judge's inference that any force sufficient to rupture the outer 

jacket of the cable would necessarily have damaged the internal conductors. 

19 Inspector Clay testified that during continued normal mining operations, miners likely 

would manually move the subject trailing cable so that mobile equipment could pass. 19 

FMSHRC at 933 (citing Tr. 148). He also testified that "[p]eople handle this cable ... constantly 

during the course of a shift." Tr. 144. Finally, Clay testified that the cable is "constantly drug 

[sic] through these areas where water accumulates." Tr. 143. 

1288 
issued a citation aileging a violation of 30 C.F.R. § 75.40020 due to the accumulation of 

"combustible material in the form of float coal dust ... in and on the energized power conductors 

of the ... power center .... " Gov't Ex. P-30. Clay designated this alleged violation S&S due to 

the ignitability of float coal dust, the presence of ignition sources in the power center, and the 

serious injuries which could result from an explosion. 19 FMSHRC at 936; Tr. 156-57. 

The judge affirmed the citation, citing Clay's testimony that float coal dust was present 

on the power center in violation of section 75.400. 19 FMSHRC at 937. He also affirmed Clay's 

S&S designation, crediting Clay's testimony as to the combustibility of float coal dust, the 

frequency of electrical arcing in the power center, and the serious injuries which could result 

from an ensuing explosion. Id. 

B. Disposition 

Harlan contends that the judge erred in finding a violation of section 75.400 because the 

inspector's visual diagnosis through a plexiglass window is not proof of the existence of float 

coal dust, and because the inspector failed to determine whether the cited accumulated material 

would pass through a No. 200 sieve before issuing a citation alleging "float coal dust" 

accumulation. PDR at 22-23. The Secretary responds that substantial evidence supports the 

judge's finding that the accumulated material in the power center observed by Inspector Clay 

constituted a violation of section 75.400. S. Br. at 27. The Secretary explains that nothing in the 

regulations suggests that performing tests is a prerequisite to issuing a citation, and that the 

personal observations of an experienced inspector are sufficient to support a finding of violation 

for accumulation of float coal dust. Id. at 28. The Secretary contends that when a test is required 

prior to issuing a citation, the regulations so state. Id. at n.13. 

Rather than alleging the violation of section 7 5 .400 to include accumulations of coal dust, 

float coal dust or other combustible materials, the citation here specifically alleges the presence 

solely of"combustible material in the form of float coal dust." Gov't Ex. P-30. At trial, the 

testimony similarly focused on the presence of float coal dust. Tr. 153-61. Section 75 .400-1 (b) 

defines "float coal dust" as "the coal dust consisting of particles of coal that can pass a No. 200 

sieve." 30 C.F.R. § 75.400-l(b). 

We find that substantial evidence supports the judge's determination that Harlan violated 

the standard. The judge implicitly credited Inspector Clay's testimony that he observed float 

coal dust in the power center. Clay also testified that the dust had previously gone into 

suspension in order to get into the vents on the power center. Tr. 158. Reduced to its essence, 

20 30 C.F.R. § 75.400 provides: "Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on diesel-powered and electrical equipment 

therein." 

1289 
Harlan's argument is that, as a matter of law, the judge could not rely on the inspector's 

testimony to support his finding of violation. However, we have never held that violations of 

section 75.400 require a test to determine the particular combustible material present, and section 

75.400 does not by its terms require testing. Our precedent indicates that violations of the 

accumulation standard have been established by inspector observations. See, e.g., Amax Coal 

Co., 19 FMSHRC 846, 847, 849 (May 1997); Jim Walter Resources, Inc., 19 FMSHRC 480, 483 

(Mar. 1997); Enlow Fork Mining Co., 19 FMSHRC 5, 20 & n.2, 21 (Jan. 1997). Further, nothing 

advanced by Harlan here persuades us to take the extraordinary step of overruling our precedent 

by engrafting a testing requirement onto section 75.400. 

The operator did not present any evidence to rebut the inspector's testimony that float 

coal dust was present, nor did Harlan establish that float coal dust could not be identified by 

observation. Insofar as Harlan's argument is construed as an attack on the judge's decision to 

credit the inspector's testimony, we see no extraordinary circumstances that would justify 

overturning this credibility finding. Thus, the inspector's unrebutted testimony based on his 

observation of the cited condition constitutes substantial evidence supporting the judge's 

conclusion that Harlan violated section 75.400. Accordingly, we affirm the judge's finding of 

violation.21 

21 Harlan contends that Inspector Clay based his identification of the float coal dust 

solely on its black color. PDR at 22-23. However, we find that this testimony (Tr. 158) refers to 

the accumulation's coal composition rather than to its size. 

1290 
VII. 

Conclusion 

For the foregoing reasons, we affirm the judge's determination that Harlan violated the 30 

C.F.R. § 75.202(a) alleged in Citation No. 4243656, and we affirm his designation of this 

violation as S&S. We also affirm the judge's determinations that the 30 C.F.R. § 75.604 

violations alleged in Citation Nos. 4250669 and 4250624, as well as Harlan's violation of 30 

C.F.R. § 75.517 alleged in Citation No. 4250670, were S&S. We affirm the judge's 

determination that Harlan committed the 30 C.F.R. § 75.400 violation alleged in Citation No. 

4250672. We reverse the judge's conclusion that Harlan violated the pillaring plan provision of 

the parties' roof control plan alleged in Citation No. 4243921, and we vacate the related civil 

penalty. Finally, we reverse the judge's conclusion that Harlan's violation of 30 C.F.R. 

§ 75.1106-3(a)(2) alleged in Citation No. 4243726 was S&S, and we remand to the judge for 

reassessment of the civil penalty for this violation. 

Marc Lincoln Marks, Commissioner 

-~~c.~-- ames C. Riley, Commissioner 

Theodore F. Verheggen, Co 

1291 
Distribution 

H. Kent Hendrickson, Esq. 

Rice and Hendrickson 

P.O. Drawer 980 

Harlan, KY 40831 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge David Barbour 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1292 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, &TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

December 15, 1998 

on behalf of KENNETH HANNAH, 

PHILIP PAYNE, and FLOYD MEZO 

v. 

CONSOLIDATION COAL COMP ANY 

Docket No. LAKE 94-704-D 

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners1 

DECISION 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), is before the Commission for a 

second time. In our previous decision, we reversed the determination of Administrative Law 

Judge Gary Melick that a work refusal engaged in by miners Kenneth Hannah, Phillip Payne, and 

Floyd Mezo was unreasonable and unprotected, and concluded that the miners' suspension by 

Consolidation Coal Company ("Consol") for their work refusal therefore violated section 

105(c)(l) of the Mine Act, 30 U.S.C. § 815(c)(l). Secretary of Labor on behalf of Hannah v. 

Consolidation Coal Co., 18 FMSHRC 2085 (Dec. 1996) ("Hannah I"). The Commission 

remanded the case for computation of a backpay award and assessment of an appropriate civil 

penalty. Id at 2085, 2095. On remand, the judge directed the payment of agreed-upon backpay 

and interest amounts, and assessed three separate $10 penalties against Consol for its unlawful 

suspension of the three miners. 19 FMSHRC 525 (Mar. 1997) (ALJ). The Commission granted 

cross-petitions for discretionary review filed by Consol and the Secretary of Labor. For the 

reasons that follow, we vacate the judge's penalty assessment and remand for reassessment of a 

civil penalty and the entry of an order providing for other appropriate remedial measures, 

including the posting of a notice at the Rend Lake Mine and the expungement from the 

complainants' employment records of all references to the unlawful disciplinary action taken 

against them. 

1 Commissioner Beatty recused himself in this matter and took no part in its 

consideration. 

1293 
I. 

Factual and Procedural Background 

The background facts are fully set forth in Hannah I, 18 FMSHRC at 2086-89, and are 

summarized here. Consol suspended Hannah, Mezo, and Payne, with the intent to discharge 

them, as the result of an incident that occurred on April 10, 1994. The three miners refused 

orders to work underground because of their concerns that a preshift examination had not been 

properly conducted following a power outage the previous night, which had caused the 

ventilating fans to shut down. The three miners filed a discrimination complaint with the 

Department ofLabor'sMine Safety and Health Administration ("MSHA"), and the Secretary 

filed a complaint on their behalf with the Commission, pursuant to section 105(c)(2) of the Mine 

Act, 30 U.S.C. § 815(c)(2). 2 

Following an evidentiary hearing, the judge dismissed the discrimination complaint 

brought by the Secretary on behalf of the three miners. 17 FMSHRC 666 (Apr. 1995) (ALJ). 

The judge concluded that the disciplinary action taken by Consol against the three miners did not 

violate the Mine Act because, in his view, at the time of their work refusal the miners no longer 

had a good faith, reasonable belief in a hazardous condition. Id. at 671-72. On review, the 

Commission concluded that substantial evidence did not support the judge's finding that Consol 

fulfilled its obligation to address the perceived danger communicated by the miners in a manner 

sufficient to quell their fears, and thereby render their subsequent work refusal unreasonable and 

unprotected. 18 FMSHRC at 2093-94. The Commission therefore reversed the judge's 

conclusion that the disciplinary measures taken by Consol did not violate the Mine Act, found 

that the miners were disciplined for engaging in a protected work refusal in violation of section 

105( c ), and remanded the case for computation of a backpay award and assessment of an 

appropriate civil penalty. Id. at 2094-95. 

On remand, the judge initially scheduled a hearing for February 20, 1997, on the issues of 

civil penalty assessment and damages, including back pay, lost benefits, and interest. Notice of 

Hearing and Prehearing Order (Dec. 12, 1996). However, at the request of the parties, the judge 

subsequently canceled this hearing. Notice Confirming Hearing Cancellation (Jan. 24, 1997). 

On January 31, 1997, the Secretary filed a motion to amend the complaint to include a proposed 

civil penalty assessment of $3,000, and allegations concerning the size of Consol's Rend Lake 

Mine in Sasser, Illinois - the facility involved in this proceeding- and Consol's history of 

prior violations. S. Mot. to Amend Compl. On the same date, the Secretary also filed a proposed 

First Amended Complaint that included the proposed penalty assessment and allegations 

concerning these penalty criteria. In addition, the Secretary filed a separate memorandum in 

support of her proposal to expunge all references to the unlawful disciplinary action from the 

2 An arbitrator subsequently reduced the discipline to suspension without pay. 18 

FMSHRC at 2088. 

1294 
complainants' employment records. Consol opposed the Secretary's motion to amend the 

complaint, and her request for an expungement order. The judge did not immediately rule on the 

Secretary's motion to amend. 

On February 5, the judge issued a partial decision directing Consol to pay the three 

miners backpay and interest amounts that had been agreed to by the parties. 19 FMSHRC 435 

(Feb. 1997) (ALJ). On February 11, the judge issued a notice scheduling an oral argument by 

teleconference to address the "only issue remaining for disposition" in the case, the assessment 

of a civil penalty. Notice of Oral Arg. On February 19, the Secretary filed a motion to reopen 

the record for an evidentiary hearing in connection with the penalty assessment. S. Mot. to 

Reopen the Record. Consol filed an opposition to the Secretary's motion to reopen on February 

26. C. Statement in Opp'n to Mot. to Reopen the Record. 

At the oral argument by teleconference conducted on February 27, the Secretary's 

counsel agreed that there was no evidence in the record concerning three of the penalty criteria 

set forth in section 1 lO(i) of the Mine Act: the operator's history of previous violations, the 

appropriateness of the penalty to the size of its business, and the effect on Consol's ability to 

continue in business. Tr. II 5-6.3 The Secretary's counsel also agreed that there was no evidence 

in the record to show that Consol did not act in good faith in attempting to achieve rapid 

compliance after receiving notification of the violation through issuance of the Secretary's 

complaint in September 1994. Tr. II 80-81. The Secretary's counsel did, however, offer to 

provide a certified record concerning Consol's violation history and the size of its mining 

operation. Tr. II 119. On March 4, the judge issued an order denying the Secretary's motion to 

reopen the record on the ground that it was untimely and, with the exception of data concerning 

Consol's size and history of violations, did not specify the precise nature and character of the 

additional evidence sought to be adduced. Order Denying Mot. to Reopen the Record. 

On March 6, the judge issued his decision on remand in which he assessed three $10 

penalties for Consol's unlawful suspension of the three miners. 19 FMSHRC at 529. In 

assessing three separate penalties, the judge reasoned that, because the Commission found that 

each of the three complainants was suspended in violation of the Mine Act, section 1 lO(a), 30 

U.S.C. § 820(a), required the assessment of a separate civil penalty for each of the three 

violations. 19 FMSHRC at 526 n.2. He concluded that the Secretary's position at oral argument, 

that only one violation occurred and only one civil penalty should be assessed, was "inconsistent 

with this statutory mandate." Id. 

While noting that section 11 O(i) of the Mine Act lists six criteria to be considered in the 

assessment of penalties, the judge indicated that, at the February 27 teleconference, the Secretary 

acknowledged that there was no record evidence regarding four of the six criteria-history of 

3 "Tr. II" references are to the transcript of the oral argument by teleconference 

conducted on February 27. 

1295 
previous violations, appropriateness of the penalty to the size of the operator's business, effect on 

the operator's ability to continue in business, and the operator's demonstrated good faith in 

attempting to achieve rapid compliance after notification of a violation. Id. at 526-27. Given 

this lack of evidence concerning four of the statutory penalty criteria, the judge concluded that 

the penalty to be assessed "must necessarily be based upon the only two criteria for which there 

is record evidence, i.e., whether the operator was negligent and the gravity of the violations." Id. 

at 527. In his decision, the judge also denied the Secretary's motion to amend the complaint on 

the grounds that it was "unnecessary" and "moot." Id. at 526. 

The judge concluded that Consol was chargeable with little negligence for its unlawful 

suspension of the three miners, finding that it "acted in good faith in disciplining the [miners] for 

what it perceived in a good faith and reasonable belief to have been an unprotected work 

refusal." Id. at 527-28. The judge noted that "no clear legal precedent governed the precise facts 

and Consol's position in this regard was upheld by the decisions of the arbitrator and 

administrative law judge." Id. at 527. He also pointed out that Consol decided to discipline the 

three miners only after a state inspector confirmed that the condition upon which they based their 

work refusal was neither a violation of state law nor hazardous, and the complainants were so 

advised, and that several weeks earlier the same state inspector had informed Consol officials and 

some mine examiners that this same practice did not violate state law and was not hazardous. Id. 

at 527-28. The judge speculated that "Consol's shortcoming was its decision not to insist that 

the State inspector come to the mine site in person (even though he was available to 

communicate with the [miners] by telephone)." Id. at 528. Based upon the foregoing analysis, 

the judge concluded that Consol's decision to discipline the three miners was a "close judgment 

call" and there was no basis for inferring that it should have known that it would violate section 

105(c) of the Mine Act by disciplining the miners. Id. 

The judge also concluded that the Secretary "failed to sustain her burden of proving her 

allegations of high gravity." Id. at 529. He rejected the Secretary's assertion that the 

discriminatory conduct by Consol would likely have a chilling effect on the miners' future 

exercise of their rights to refuse work and report unsafe or unhealthful conditions, relying on the 

Commission's holding in Secretary of Labor on behalf of Poddey v. Tanglewood Energy, Inc., 18 

FMSHRC 1315, 1320-21 (Aug. 1996), that determinations of a chilling effect on employees 

cannot be presumed but must be made on a case-by-case basis based upon both objective and 

subjective evidence. 19 FMSHRC at 529. The judge found that in this case, the Secretary had 

offered no objective or subjective evidence of such a chilling effect. Id. 

Finally, the judge concluded that he lacked jurisdiction to grant the additional remedial 

measures requested by the Secretary - an order directing the posting of a notice at Consol's 

mine and the expungement of references in the complainants' employment records to the 

disciplinary action taken by Consol against them - because these measures were "beyond the 

scope of the Commission's specific remand order." Id. He also found, however, that these 

measures were otherwise "appropriate remedies customarily granted in cases such as this," and 

indicated that, upon subsequent remand, he would grant the Secretary's requests. Id. The judge 

1296 
expressly found that the complainants' employment records "should be expunged ofreferences 

to discipline issued as a result of actions found protected under the Act," including the decision 

of the arbitrator finding that Consol had just cause for disciplining the three miners because of 

their work refusal. Id. 

Consol and the Secretary filed cross-petitions for discretionary review of the judge's 

decision, which were granted by the Commission. 

II. 

Disposition4 

A. Penalty Assessment Issues 

1. Number of Violations and Penalties 

Both Consol and the Secretary agree that the judge erred in finding that three separate 

violations occu1:"fed, and assessing three separate penalties. C. Br. at 5-12; S. Resp. Br. at 2. The 

issue before us on appeal is thus whether the judge's penalty assessment on remand constitutes 

an abuse of discretion. See U.S. Steel Corp., 6 FMSHRC 1423, 1432 (June 1984) (holding that 

while "a judge's assessment of a penalty is an exercise of discretion, assessments lacking record 

support, infected by plain error, or otherwise constituting an abuse of discretion are not immune 

from reversal"). We find that the judge erred and that his penalty assessment was "infected by 

plain error." 

4 All Commissioners join in all sections of this decision except sections 11.A.2.b and 

11.A.2.c. All Commissioners agree to vacate the judge's penalty assessment and remand for 

assessment of a single penalty, and the issuance of an expungement order and an order directing 

the posting of an appropriate notice by Consol. All Commissioners also agree that the judge 

erred in not expressly considering all of the section 1 lO(i) penalty criteria in his penalty 

assessment, and are in agreement as to how four of the six criteria should be considered on 

remand. As to the remaining two criteria, Chairman Jordan and Commissioners Riley and 

Verheggen affirm the judge's finding oflow negligence, while Commissioner Marks would 

reverse and find high negligence. As stated in their separate opinions which follow, 

Commissioners Riley and Verheggen would affirm the judge's finding oflow gravity, Chairman 

Jordan would vacate the judge's gravity finding and remand, and Commissioner Marks would 

reverse and find high gravity. Accordingly, the judge's finding oflow gravity stands as if 

affirmed. See Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff'd on 

other grounds, 969 F.2d 1501 (3d Cir. 1992). 

1297 
In his remand decision, the judge stated: 

The Commission found that each of the three Complainants 

was suspended in violation of the Act. In accordance with Section 

l lO(a) of the Act[,] a civil penalty must therefore be assessed for 

each of the three violations. The Secretary's position at oral 

argument, that only one violation occurred and only one civil 

penalty should be assessed, is inconsistent with this statutory 

mandate. 

19 FMSHRC at 526 n.2. 

Our remand order did not require the judge to find that the operator committed three 

separate violations of the Mine Act or to assess three separate penalties. The judge's finding of 

multiple violations and his assessment of three separate penalties was apparently based on a 

misunderstanding of the Commission's order. 

However, even ifthe Commission's order could have been interpreted to mean that three 

penalties were to be assessed, neither the Commission nor the judge have the authority to expand 

this case beyond the bounds under which the Secretary brought it. In other words, neither the 

Commission nor the judge are "authorized representatives of the Secretary and do not have the 

legal authority to charge an operator with violations of ... the Mine Act." Mettiki Coal Corp., 

13 FMSHRC 760, 764 (May 1991). Yet that is what the judge effectively did here when he went 

beyond the charge of a single violation brought by the Secretary. In so doing, he clearly erred as 

a matter of law, and we vacate his three penalty assessments.5 

2. The Judge's Consideration of the Penalty Criteria 

a. Size. Effect. History of Violations. and Good Faith Abatement 

The Secretary contends that the judge's civil penalty assessment is not in accordance with 

applicable law and constitutes an abuse of discretion. S. Br. at 19-21. She argues that the judge 

erred by failing to consider all of the six statutory penalty criteria set forth in section l lO(i).6 Id. 

5 By this decision, the Commission does not intimate any view as to whether a 

discriminatory act by one operator against multiple persons should be treated as one or multiple 

violations. 

6 Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties 

under the Act: 

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

1298 
at 21-23. Regarding the judge's penalty assessment as a whole, the Secretary also argues that the 

total penalty of $30 is not likely to have any deterrent effect on Consol, which she alleges is a 

large operator. Id. at 20-21. Consol argues that the judge's failure to consider four of the section 

l lO(i) criteria- Consol's history of previous violations, the appropriateness of the penalty to 

the company's size, the effect of the penalty on the company's ability to continue in business, 

and the company's good faith in attempting to achieve rapid compliance after notification of a 

violation - was directly attributable to the Secretary's failure to introduce any evidence 

regarding these criteria. C. Br. at 12-13. The operator argues that the Commission should either 

affirm the judge's $30 penalty assessment, or vacate the penalty and dismiss the proceeding on 

the grounds that the Secretary's lack of proof on the penalty issues prevents assessment of any 

penalty. Id. Consol contends that the record should not be reopened and that the Secretary 

should not be allowed to adduce additional evidence because she failed to introduce pertinent 

evidence at the original hearing, and has failed to establish good cause for reopening the record 

under Rule 60(b) of the Federal Rules of Civil Procedure. Id. at 14-27. Regarding the penalty's 

deterrent effect, Consol argues that a minimal penalty is warranted in view of the judge's 

findings oflow negligence and gravity. Id. at 43-45. 

There is no dispute that the judge did not consider all six of the civil penalty criteria set 

forth in section 11 O(i). The judge himself stated that, as late in the proceedings as February 

1997, "there is no record evidence as to four of the six criteria," namely, "the operator's history 

of previous violations, the appropriateness of such penalty to the size of the business of the 

operator charged, the effect on the operator's ability to continue in business and the demonstrated 

good faith in attempting to achieve rapid compliance after notification of a violation." 

19 FMSHRC at 527 & n.4. The judge went on to conclude that his penalty assessment "must 

necessarily be based upon the only two criteria for which there is record evidence, i.e.[,] whether 

the operator was negligent and the gravity of the violations [sic]." Id. at 527. 

Section 11 O(i) of the Mine Act delegates to the Commission "authority to assess all civil 

penalties provided in [the Act]." 30 U.S.C. § 820(i). The Act delegates to the Secretary, 

however, the duty of proposing penalties. 30 U.S.C. §§ 815(a) & 820(a). When an operator 

notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the 

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

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

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

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

person charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 u.s.c. § 820(i). 

1299 
Commission to assess the penalty. 29 C.F.R. §§ 2700.28 & 2700.44.7 The Act requires that, 

"[i]n assessing civil monetary penalties, the Commission shall consider" the six statutory penalty 

criteria. 30 U.S.C. § 820(i) (emphasis added). This case raises the issue of how information on 

the criteria must be made part of a record so that the Commission can fulfill its statutory duty to 

consider the criteria. 

The Mine Act provides that, "[i]n proposing civil penalties ... the Secretary may rely 

upon a summary review of the information available to [her]." Id. The Act further provides that 

the Secretary "shall not be required to make findings of fact concerning" the criteria. Id. It is 

clear, however, from the legislative history that Congress intended that the Secretary base 

penalty proposals upon the statutory criteria. The Conference Report on the Mine Act states: 

The Senate bill provided that the independent ... 

Commission would have the authority to assess all civil penalties, 

based on proposals made by the Secretary. 

The conference substitute conforms to the Senate bill, with an 

amendment incorporating the six criteria ... which criteria shall 

be those upon which the Secretary shall propose a civil penalty and 

the Commission shall assess such penalty. 

S. Conf. Rep. No. 95-461, at 58 (1977), reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 1336 (1978) (emphasis added). 

Under this statutory scheme, the Secretary proposes penalties based on the section 11 O(i) 

penalty criteria, and the Commission ultimately assesses penalties either by operation oflaw, or 

by order utilizing the same criteria. At the hearing, the Secretary is responsible for providing the 

judge the information he or she needs to consider the section 11 O(i) penalty criteria. This 

responsibility naturally and logically follows from the Secretary's enforcement and investigative 

duties - i.e., she has the means of obtaining the information via, for instance, mine identity and 

production reports (see, e.g., 30 C.F.R. § 50.30), records of an operator's past violations, and 

investigations of the facts and circumstances surrounding particular violations. Although 

fulfillment of this responsibility necessarily precedes the Commission's exercise of its 

responsibility to actually assess penalties, it lies within the province of the judge to ensure that 

7 When an operator, after receiving notice of a proposed penalty, elects not to challenge 

the proposal, the Commission plays no active role in the penalty determination. Instead, such a 

proposed penalty becomes a "final order of the Commission" by operation oflaw. 30 U.S.C. 

§ 815(a). 

1300 
the record contains sufficient information on all the statutory criteria. But ultimately, a penalty 

proposal made by the Secretary should assist the Commission irt efficiently exercising that 

authority. 

In 1983, the Commission held that the Secretary must propose penalties in discrimination 

cases, and must support such proposals with allegations on each of the criteria. Secretary of 

Labor on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2044-48 (Dec. 1983). In 

Arkansas-Carbona, a unanimous Commission held: 

Id. at 2048. 8 

[I]t is incumbent upon the Secretary in a combined proceeding to 

set forth in the discrimination complaint the precise amount of the 

proposed penalty with appropriate allegations concerning the 

statutory criteria supporting the proposed amount. 

Henceforth, we shall require in these cases that the Secretary 

propose in his complaint a penalty in a specific dollar amount 

supported by information on the section 11 O(i) criteria for 

assessing a penalty. 

Commission Procedural Rule 44(a) was promulgated to codify this holding. Id. at 2048 

n.11; 49 Fed. Reg. 5750, 5751 (1984). It requires the Secretary, in connection with any proposed 

civil penalty for a violation of section 105( c) she alleges in a discrimination complaint, to 

provide "a short and plain statement of supporting reasons based on the [section l lO(i)] criteria." 

8 Among the Commission's concerns in Arkansas-Carbona was providing adequate 

notice to operators: 

Formal penalty allegations in the complaint better afford operators 

adequate notice of penalty issues in discrimination cases. 

Thus, the operator will be informed not only of the dollar 

amount proposed, but also the basis therefor. The parties will then 

be better prepared to litigate at the hearing any dispute concerning 

the penalty sought. 

5 FMSHRC at 2048. 

1301 
29 C.F.R. § 2700.44(a). It is thus the Secretary who must initially produce preliminary 

information that will assist the judge in making findings concerning the statutory penalty 

criteria.9 As the Commission recognized in Arkansas-Carbona, this is not an onerous obligation. 

5 FMSHRC at 2048 ("penalty allegations in the discrimination complaint may be stated in 

summary fashion"). It is certainly not comparable to the Secretary's burden to prove an 

underlying violation by a preponderance of the evidence. It is merely a requirement that the 

Secretary allege in simple terms how the criteria apply to any given case. 

Whether or not the Secretary meets this requirement, Commission judges must 

nevertheless ensure that a complete record has been made. This goes hand in hand with the 

Secretary's responsibility to allege simple facts, in the first instance, that are both sufficient to 

give a respondent adequate notice of the bases of her penalty proposal, and to assist our judges 

entering findings on the criteria. Commission judges are well placed to recognize deficiencies in 

initial pleadings, deficiencies they can attempt to correct by, for instance, directing the Secretary 

to propose a specific penalty amount, or ordering the parties before a hearing to either stipulate or 

allege facts concerning each criterion. 

Here, we conclude that the judge erred by expressly refusing to consider all six of the 

section 11 O(i) penalty criteria in making his penalty assessment. As we emphasized in 

Sellersburg Stone Co., "[w]hen an operator contests the Secretary's proposed assessment of 

penalty ... findings of fact on the statutory penalty criteria must be made." 5 FMSHRC at 292. 

Furthermore, the Secretary clearly failed to assist the judge in assessing a penalty. The 

Secretary's original complaint not only ignored the requirements of Rule 44(a) to provide 

"supporting reasons" for a proposed penalty (the complaint lists the criteria, but provides no 

information on them), but even failed to "propose a civil penalty of a specific amount" in the first 

instance. S. Compl. of Discrimination at 4. Instead, the complaint merely requests that the 

Commission "assess[] a civil penalty against the Respondent ... in the amount ... which is 

based on the assessment criteria of Section 1 lO(i) of the Mine Act." Id. Cf Arkansas-Carbona, 

5 FMSHRC at 2048 ("the Secretary's naked request in his complaint for a penalty of 'up to 

$10,000' is scarcely a penalty proposal at all") (emphasis in original). Nor did the Secretary 

9 The "ability to stay in business" criterion is unique insofar as operators are presumably 

in the best position to know whether penalties the Secretary proposes may affect their ability to 

continue in business. To provide proper notice of the bases of her case, the Secretary must 

nevertheless allege that, based on the information available to her, the proposed penalty would 

not adversely affect the operator's ability to continue in business. Cf 30 C.F.R. § 100.3(h) (in 

determining the amount of a penalty proposal, "[i]t is initially presumed [by the Secretary] that 

the operator's ability to continue in business will not be affected by the assessment," with 

allowance made for penalty adjustments if the operator submits information showing that a 

penalty will have such an effect). See also Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 

1983) (Commission judges will "presume[] that no ... adverse [effect] would occur" in the 

absence of any evidence to the contrary), aff'd, 736 F.2d 1147, 1153 (7th Cir. 1984). 

1302 
propose a specific penalty amount at the hearing, or even in her posthearing brie£ See S. 

Posthearing Br. at 34-35 (Mar. 31, 1995) (reiterating the prayer for relief as to a civil penalty 

appearing in the original Complaint). She proposed a penalty of $3,000 only after the case had 

gone to the Commission and was remanded back to the judge. See S. First Amended Compl. at 3 

(Jan. 31, 1997). 

We do not condone the Secretary's failure to conform her original complaint to the 

requirements of Rule 44(a). Indeed, the Secretary's filing of a deficient complaint has 

contributed to prolonging the penalty phase of this case, in effect thwarting Congress' "desire to 

speed the [civil penalty] process" when it amended the 1969 Coal Act. See Arkansas-Carbona, 5 

FMSHRC at 2046. We also note that the sooner in the process that the Secretary provides 

allegations on the criteria, the sooner respondents will have an opportunity to evaluate the merits 

of penalties the Secretary proposes be assessed against them, and to prepare and submit rebuttals, 

making for more complete records for the Commission's consideration. 

We note that the judge and the parties also missed an opportunity to correct the 

deficiencies in the record on remand. The Commission directed the judge to assess "an 

appropriate civil penalty." 18 FMSHRC at 2095. No civil penalty is ever appropriate unless 

assessed according to section l lO(i). The Secretary's oversights in the original proceeding 

notwithstanding, the judge was under an obligation to direct the parties to supplement the record 

to allow him to discharge his duty under section 11 O(i). He thus erred when he failed to allow 

the Secretary to amend her complaint by denying her motion to reopen the record. 10 See Order 

Denying Mot. to Reopen the Record (Mar. 4, 1997). 

b. Negligence11 

The Secretary argues that the judge's analysis of the negligence criterion is not supported 

by the record and is inconsistent with the Commission's finding that Consol did not adequately 

respond to the miners' safety concerns even though it could easily have done so. S. Br. at 9-12. 

Consol argues that the judge correctly determined that its section 105( c) violation involved low 

negligence because the decision of the Commission in effect established a new obligation on 

operators to call in third parties to address miner safety concerns. C. Br. at 32-34. 

10 The judge never ruled on the Secretary's separate motion to amend her complaint. See 

Tr. II at 116-17. We note that, consistent with Rule 15 of the Federal Rules of Civil Procedure, 

leave to amend should be freely granted. Fed. R. Civ. P. 15; see also Faith Coal Co., 19 

FMSHRC 1357, 1361-62 n.10 (Aug. 1997); Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 

1990). 

11 For reasons stated in his separate opinion, Commissioner Marks would reverse the 

judge's finding oflow negligence. 

1303 
We conclude that the judge did not abuse his discretion in finding that this violation was 

the result of low negligence, even though he made certain statements that appear to reflect a 

misunderstanding of our decision in Hannah I. In our view, the record supports the judge's 

finding that Consol's response to the miners work refusal was a "close judgment call" as to 

which there was no directly applicable legal precedent. 19 FMSHRC at 528. The record 

indicates that Consol did not act precipitously in response to the miners' complaint about the 

adequacy of the preshift inspection, but instead made a good faith effort to determine whether the 

inspection was adequate under Illinois law. The fact that Consol officials and some mine 

examiners had been advised several weeks earlier that this practice did not violate state law, and 

that Consol's position was upheld initially by the judge and, to a limited extent, by an arbitrator, 

indicate that Consol's decision to discipline the three miners several hours after they first raised 

their complaint, and after it was investigated by company officials, was not totally 

unreasonable. 12 

It is true the judge erroneously stated that "Consol's shortcoming was its decision not to 

insist that the State inspector come to the mine site in person (even though he was available to 

communicate with the [three miners] by telephone)." 19 FMSHRC at 528. As we indicated in 

Hannah I, it was Consol's refusal to call the state inspector directly, or allow the miners to speak 

to him by telephone to confirm the statements attributed to him concerning the propriety of the 

preshift inspection, that provided the basis for our conclusion that Consol did not fulfill its 

obligation to address the perceived danger communicated by the miners in a manner sufficient to 

quell their fears. 18 FMSHRC at 2093-94. Moreover, we expressly found that Consol 

supervisor John Moore denied the miners' request to call the state inspector to confirm the 

statements attributed to him by Consol management. Id. at 2087, 2093. Thus, contrary to the 

judge's statement, the state inspector was not "available to communicate with the [miners] by 

telephone." 19 FMSHRC at 528. In our view, however, these errors are harmless since the 

judge otherwise provided a reasonable analysis of the negligence criterion, which is sufficient to 

support his finding that this violation was the product of low negligence. 

c. Gravity 

The Secretary contends that the judge erred in his consideration of the gravity criterion by 

failing to presume that Consol's unlawful disciplining of the three miners would have a chilling 

effect on other miners exercising their rights under the Mine Act. S. Br. at 13-18. Consol 

contends that the Secretary's argument for a presumption of a chilling effect resulting from 

unlawful disciplining of miners is contrary to the Mine Act, and is not supported by the cases she 

cites involving the effect of violations of the National Labor Relations Act. C. Br. at 28-32. 

12 The Commission has held that a judge is entitled to consider these type of mitigating 

factors in evaluating the level of negligence assigned to a violation. Secretary of Labor on behalf 

of Knotts v. Tanglewood Energy, Inc., 19 FMSHRC 833, 840 (May 1997); Poddey, 18 FMSHRC 

at 1319-20. 

1304 
Commissioners Riley and Verheggen would affirm the judge's finding oflow gravity. 

Chairman Jordan would vacate and remand the judge's holding. Commissioner Marks would 

reverse it. The effect of this split decision is to allow the judge's finding to stand as if affirmed. 

Pennsylvania Electric Co., 12 FMSHRC at 1563-65. The separate opinions of Commissioners 

are set forth in Part III of this decision. 

3. Conclusion 

In light of the judge's legal errors, we vacate his penalty assessment and remand for 

assessment of a single penalty for Consol's violation of section 105(c). As to the statutory 

penalty criteria, we have already affirmed the judge's findings on negligence, and his gravity 

finding stands as if affirmed. As to the "size" criterion, we note that, at the outset of this case, 

the Secretary alleged that "Consol's Rend Lake Mine ... is a large underground coal mine." S. 

Compl. of Discrimination at 1 (Sept. 9, 1994). Consol admitted this allegation in its Answer, 

dated October 3, 1994. Accordingly, we direct the judge to enter a finding on the "size" criterion 

that is consistent with this admitted allegation. We also note that both parties stipulated that 

assessment of a civil penalty would not affect Consol's ability to continue in business. S. Resp. 

to Prehearing Order at 1 (Dec. 9, 1994); Consol Prehearing Resp. at [2] (Dec. 9, 1994). 

Accordingly, we direct the judge to enter a finding on this criterion consistent with the parties' 

stipulation. 13 

Currently, there is no evidence in the record on two of the statutory criteria. As to the 

"history ofviolations"14 criterion and whether Consol "demonstrated good faith ... in attempting 

to achieve rapid compliance after notification of the violation,"15 we direct the judge to allow the 

Secretary to amend her complaint for the narrow purpose of adducing information on these two 

criteria, to allow Consol to rebut this information as appropriate, and to then enter appropriate 

findings. 

13 The Commission has authority to enter these findings even in the absence of an 

amended complaint. Sellersburg, 736 F.2d at 1153. 

14 In her amended complaint which was never admitted, the Secretary alleged that Consol 

was charged with 549 violations during the 24 months before the violation here. S. First 

Amended Compl. at 4 (Jan. 31, 1997). We note that, in the absence of a qualitative allegation 

(i.e., that such a history is high, low, or average), such bare information is oflimited use to our 

judges. 

15 We note that, although the Secretary's counsel stated during oral argument that there 

was no evidence in the record that "Consol did not act in good faith in attempting to achieve 

rapid compliance" (Tr. II at 81 ), the judge must evaluate the allegations of the parties on this 

question in light of the record evidence, and must enter an appropriate finding. 

1305 
In light of our conclusion that in this case only a single penalty may be assessed for the 

violation charged by the Secretary, we direct the judge to assess an appropriate penalty that is 

consistent with this decision and the overall deterrent purposes underlying the Mine Act's 

penalty assessment scheme. On remand, we remind the judge that the purpose of civil penalties 

under the Mine Act is to '"convinc[e] operators to comply with the Act's requirements."' 

Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1565 n.17 (Sept. 1996) (quoting S. Rep. No. 

95-181, at 45 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 

633 (1978)). 

B. Expungement and Notice Posting Remedies 

Consol contends that the Secretary's request for the posting of a notice was properly 

denied by the judge because it exceeds the scope of the Commission's prior remand order, the 

requested notice would not provide any new information to the miners concerning their statutory 

rights, and any notice-posting is premature before an appeals court reviews the Commission's 

decision in this case. C. Br. at 34-35. Consol agrees with the judge's determination that the 

expungement order requested by the Secretary exceeds the scope of the Commission's order, but 

takes issue with the judge's statement that expungement would be an appropriate remedy in this 

case and could be ordered on remand. Id. at 35-36. Consol argues that expungement of all 

references to its discipline of the three miners would be inappropriate in this case because the 

discipline upheld by the arbitrator (suspension) was not the same as that originally taken against 

the complainants (discharge), and that it would blur the distinction between contractual and 

statutory rights. Id. at 35-43. 

The Secretary contends that the judge erred in denying her request for an order directing 

the posting of a notice and the expungement of any references to the unlawful discipline in the 

miners' employment records because those remedies are appropriate under the circumstances 

presented here and were not beyond the scope of the Commission's remand order. S. Br. at 23-

25. The Secretary takes issue with Consol's argument based on the distinction between 

contractual and statutory rights on the ground that it is contrary to the "supremacy doctrine," 

which provides that the decisions of federal agencies construing statutory rights take precedence 

over conflicting arbitration decisions. S. Resp. Br. at 9-12 & n.2. 

The Commission possesses broad remedial power in fashioning relief for victims of 

discrimination. Section 105( c )(2) of the Mine Act provides: 

The Commission shall have authority ... to require a person 

committing a violation of this subsection to take such affirmative 

action to abate the violation as the Commission deems appropriate, 

including, but not limited to, the rehiring or reinstatement of the 

miner to his former position with back pay and interest. 

1306 
30 U.S.C. § 815(c)(2). As we have recognized, "this is a 'broad remedial charge' and ... 'so 

long as our remedial orders effectuate the purposes of the MineAct, our judges and we possess 

considerable discretion in fashioning remedies appropriate to varied and diverse circumstances."' 

Secretary of Labor on behalf of Rieke v. Akzo Nobel Salt Inc., 19 FMSHRC 1254, 1257-58 (July 

1997) (quoting Secretary of Labor on behalf of Dunmire v. Northern Coal Co., 4 FMSHRC 126, 

142 (Feb. 1982)). 

The legislative history of the Mine Act similarly indicates that Congress intended to 

provide for expansive relief to victims of discrimination: 

It is the Committee's intention that the Secretary propose, 

and that the Commission require, all relief that is necessary to 

make the complaining party whole and to remove the deleterious 

effects of the discriminatory conduct including, but not limited 

to[,] reinstatement with full seniority rights, back-pay with interest, 

and recompense for any special damages sustained as a result of 

the discrimination. The specified relief is only illustrative. 

S. Rep. No. 95-181, at 37 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 

1977, at 625 (1978). 

In accordance with these principles, the Commission endeavors to make miners whole 

and to return them to the status they enjoyed before the illegal discrimination occurred. Rieke, 19 

FMSHRC at 1258; Arkansas-Carbona, 5 FMSHRC at 2056. "'Unless compelling reasons point 

to the contrary, the full measure ofrelief should be granted to [an improperly] discharged 

employee."' Arkansas-Carbona, 5 FMSHRC at 2049 (citation omitted). 

We believe that the judge correctly concluded that the expungement and notice posting 

orders requested by the Secretary "are ... appropriate remedies customarily granted in 

[discrimination] cases such as this," which would have been appropriately entered in this case 

but for the narrow scope of the Commission's remand order in Hannah I. 19 FMSHRC at 529. 

While we initially remanded the case specifically "for computation of a backpay award and 

assessment of an appropriate civil penalty" (18 FMSHRC at 2095), our remand order should 

have also expressly authorized the judge to grant other forms of relief that he deemed appropriate 

under the circumstances. Since the judge has indicated his inclination to grant these additional 

forms of relief on a subsequent remand, we remand the case with specific instructions to the 

judge to issue an expungement order, an order directing the posting of an appropriate notice by 

Consol, or any other form of relief deemed appropriate under the circumstances. 

We also affirm the judge's determination that any expungement order issued on remand 

should order the deletion of any references to the arbitrator's decision which found that Consol 

had just cause for disciplining the three miners. The underlying arbitration decision, which 

1307 
upheld Consol's discipline of the three miners for engaging in a work refusal that we found to be 

protected in Hannah I, does not require us to provide less thari complete relief under the Mine 

Act. See Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2795-96 (Oct. 1980), rev 'don other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 

F.2d 1211 (3d Cir. 1981); see also Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738, 749-

50 (11th Cir. 1990) (Commission not required to "defer to arbitrator's decision on matters 

involving the vindication of ... miners' statutory rights under section 105(c)" where statutory 

and contractual issues were not congruent). 

1308 
III. 

Separate Opinions of the Commissioners 

Commissioners Riley and Verheggen, in favor of affirming the finding of the 

administrative law judge that Consol's violation of section 105( c) of the Mine Act involved a 

low level of gravity: 

We conclude that the judge properly rejected the Secretary's argument that a chilling 

effect on other miners exercising their rights under the Mine Act should be presumed solely on 

the basis of Consol's discriminatory conduct, in the absence of any other supporting evidence. 

As the judge noted, the Commission has held that such a chilling effect cannot be presumed to 

have resulted from a section 105(c) violation, but must be established on a case-by-case basis 

from objective or subjective evidence. Poddey, 18 FMSHRC at 1320-21; Secretary of Labor on 

behalf of Carroll Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 552, 558-59 (Apr. 1996). 

The judge found that, in this case, the Secretary had produced no evidence that would support an 

inference that Consol's disciplining of the three miners had a chilling effect on other miners. We 

conclude that this finding is supported by substantial evidence. 1 

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

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

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

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

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

U.S. 197, 229 (1938)). So long as substantial evidence supports the judge's findings, the 

Commission does not substitute "a competing view of the facts for the view the [judge] 

reasonably reached," even where some record evidence supports that competing view. Donovan 

ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983). 

1309 
Chairman Jordan, in favor of vacating and remanding the finding of the administrative 

law judge that Consol's violation of section 105(c) of the Mine Act involved a low level of 

gravity: 

With respect to the gravity criterion in his penalty determination, the judge found "no 

objective or subjective evidence of a chilling effect," 19 FMSHRC at 529, and concluded that the 

Secretary failed to meet her burden of proving high gravity. Notwithstanding the terse opinion of 

Commissioners Riley and Verheggen affirming the judge, I believe there is relevant evidence in 

the record on this point which he failed to consider. Accordingly, I would vacate and remand for 

further consideration of this issue. 

In two fairly recent cases, the Commission has described the type of evidence relevant to 

a gravity determination in a discrimination case. In Carroll Johnson, the Commission held that, 

in determining gravity in a discrimination case, both subjective and objective evidence should be 

considered in evaluating whether a chilling effect resulted from adverse action. 18 FMSHRC at 

559. The Commission explained that, in considering objective evidence, the judge must consider 

whether the adverse action "reasonably tend[ ed] to discourage other miners from engaging in 

protected activities." Id. The Commission emphasized that a judge must evaluate the gravity of 

a violation within its factual context, and in that case framed the inquiry as whether the 

operator's "removal of a miners' representative who was accompanying MSHA during an 

inspection would reasonably tend to discourage other miners from engaging in protected 

activities." Id. We remanded the case to the judge because he failed to evaluate any objective 

factors in determining whether a chilling effect occurred. Id. 

Similarly, in Poddey, a majority of the Commission reviewed the context of the discharge 

in question, and concluded that it would not "reasonably tend[] to discourage miners from 

engaging in protected activities," because it was caused in part as a result of a heated 

confrontation with a foreman. 18 FMSHRC at 1321. 

In the instant case, the judge utterly failed to conduct the required analysis. The record 

reflected that three miners who had never been subject to any previous disciplinary action were 

suspended. Tr. 280, 341-42, 521, 559, 673. The judge did not take into account that more than 

one miner was suspended. Thus, it appears irrelevant to his gravity determination, whether one, 

three, or thirty miners were disciplined. He should have inquired as to whether the suspension of 

more than one miner might have reasonably tended to discourage other miners from engaging in 

protected activities. As the Fifth Circuit has noted, it is appropriate to take into account the 

number of affected employees when analyzing the gravity of a violation. See Reich v. Arcadian 

Corp., 110 F .3d 1192, 1199 (5th Cir. 1997) (discussing OSHA citation). The judge should also 

have examined the evidence regarding the employees' pristine work records, and made a finding 

as to whether this fact might have increased the "chilling effect" of the suspension. 

1310 
It seems likely that an operator's suspension of several miners (all of whom had good 

disciplinary records) might produce a greater chilling effect on the workforce than the discipline 

of a single miner who had a less than stellar record. The judge never took these factors into 

account in making his gravity determination. However, the substantial evidence standard of 

review requires that a fact finder weigh all probative record evidence and that a reviewing body 

examine the fact finder's rationale in arriving at his or her decision. See Universal Camera 

Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Amax Coal Co., 18 FMSHRC 1355, 1358 n.7 

(Aug. 1996). In light of the judge's failure to address any relevant evidence regarding the 

potential chilling effect of the violative conduct, I cannot effectively review his gravity finding. 

Thus, I would vacate the finding and remand the matter for further consideration of this issue. 

1311 
Commissioner Marks, concurring in part, dissenting in part and in favor of reversing the 

finding of the administrative law judge that Consol's violation: of section 105( c) of the Mine Act 

involved a low level of gravity: 

I concur in Part II.A. I and agree with my colleagues that, in this case, the judge went 

beyond his authority in charging three violations. However, as set forth in my opinions in 

Mechanicsville Concrete, Inc., 18 FMSHRC 877, 883 (June 1996), and Cyprus Emerald 

Resources Corp., 20 FMSHRC 790, 822 (Aug. 1998), a judge may modify citations pursuant to 

Mine Act section 105(d), 30 U.S.C. § 815(d), "so long as the essential allegations necessary to 

sustain the modified enforcement actjon are contained in the original citation or order." 

Consolidation Coal Co., 4 FMSHRC 1791, 1793-94 (Oct. 1982). Because the original complaint 

in this case sought a penalty for one violation, the allegations necessary to sustain the judge's 

finding of three violations are simply not contained in the original papers served on the operator. 

I dissent with respect to Part Il.A.2.b. Specifically, I believe that the judge erred in his 

finding of low negligence with respect to this discrimination violation. 

Although Commission judges are accorded broad discretion in assessing civil penalties 

under the Mine Act, the Commission has cautioned that the exercise of such discretion is not 

unbounded and must reflect proper consideration of the penalty criteria set forth in section 11 O(i) 

of the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986) (citing Sellersburg, 

5 FMSHRC at 290-94, aff'd, 736 F.2d at 1151-53). In reviewing a judge's penalty assessment, 

the Commission must determine whether the judge's findings are supported by substantial 

evidence. Assessments "lacking record support, infected by plain error, or otherwise constituting 

an abuse of discretion are not immune from reversal." U.S. Steel, 6 FMSHRC at 1432. 

The judge's analysis of the negligence criterion is incompatible with the Commission's 

earlier decision in this case, in which we reversed the judge's finding of no violation. Hannah I, 

18 FMSHRC 2085. In particular, the judge based his finding of a low level of negligence on an 

improper ground. The judge found that "the operator acted in good faith in disciplining the 

Complainants for what it perceived in a good faith and reasonable belief to have been an 

unprotected work refusal." 19 FMSHRC at 527. However, in Hannah I, the Commission held 

that Consol's response to the miners' safety concern was not reasonable nor sufficient to quell 

the fears of the miners. 18 FMSHRC at 2092-94. The Commission also stressed the seriousness 

of the miners' concerns that prompted their refusal to work. These miners were concerned that 

there was methane gas present in the escapeways and, if they started work and power were 

restored to the mine, a spark or electrical problem could cause an explosion that could kill or 

injure them or their co-workers. Id. at 2092. The judge's negligence analysis fails to consider 

the Commission's determination that Consol could have easily responded to these serious safety 

concerns by acceding to the miners' request to call state inspector William Sanders or to allow 

the miners to call the state inspector themselves. Id at 2093. The judge was dead wrong when he 

said that "Consol's shortcoming was its decision not to insist that the State inspector come to the 

mine site in person (even though he was available to communicate with the Complainants by 

1312 
telephone)" (19 FMSHRC at 528) because in Hannah I, the Commission expressly found that 

Consol supervisor John Moore denied the miners' request to call the state inspector. 18 

FMSHRC at 2093. 

Given the Commission's holding in Hannah I as to the seriousness of these safety 

concerns and Consol's refusal to respond to them, the judge erred in finding that Consol's 

decision to discipline the three miners for refusing to work in a mine that they reasonably 

thought might be explosive amounted to a "close judgment call." 19 FMSHRC at 528. His 

holding flies in the face of the binding Commission law of the case. Therefore, I believe that the 

judge's finding on the negligence criterion was "infected by plain error." US. Steel, 6 FMSHRC 

at 1432. 

I would reverse the judge's low negligence finding. The record in this case can support 

no other conclusion than that Consol failed to exercise reasonable care when it unjustly punished 

miners who were exercising their rights, under the Mine Act, to refuse to work under conditions 

they reasonably believed hazardous to themselves and others. See American Mine Services, Inc., 

15 FMSHRC 1830, 1834 (Sept. 1993) (when record can support no other conclusion, a remand 

to the judge for reconsideration would serve no purpose). 

With respect to the gravity criterion, my colleagues have again rejected the Secretary's 

call for Commission recognition that violations of section 105( c) serve to chill miners' future 

invocation of protected activities because of a fear of similar adverse action. As I stated in my 

opinion in Carroll Johnson, 18 FMSHRC at 563, when an operator, such as Consol here, violates 

section 105( c ), either by firing or by taking some other adverse action against miners who have 

merely acted as the Mine Act encourages (such as refusing to work when there is a danger of 

explosion, as was done in this case), such action has the effect of intimidating or "chilling" future 

protected activities of the miners and their co-workers. Although the majority remains unwilling 

to presume that such a natural reaction will occur, in the ·real world in which our miners must 

work and live, there is certainly a chilling effect on other miners when any of their brothers or 

sisters are illegally threatened with loss of their jobs or incur other disciplinary actions. 

Therefore, I would reverse the low gravity finding for the same reasons expressed in my opinion 

in Carroll Johnson, and reiterate my conclusion that a presumption of a chilling effect should be 

made in every instance of a section 105( c) violation. 

Finally, the judge's imposition of a $30 penalty for this violation ($10 for each violation) 

against a large operator like Consol is tantamount to no penalty at all. See Thunder Basin Coal 

Co., 19 FMSHRC 1495, 1505 (Sept. 1997) (nominal penalty "is likely to have little financial 

impact, and therefore minimal deterrent effect" against a company with significant size and 

resources). The D.C. Circuit has explained that Congress in enacting the Mine Act ''was intent 

on assuring that the civil penalties provide an effective deterrent against all offenders." Coal 

Employment Project v. Dole, 889 F.2d 1127, 1133 (D.C. Cir. 1989). The judge's penalty flouts 

that Congressional intent. The Secretary proposed a $3,000 penalty in her Amended Complaint, 

which the judge incorrectly found unnecessary to consider. 19 FMSHRC at 525-26. In 

1313 
Sellersburg, 5 FMSHRC at 293, the Commission held that, when there is a wide divergence 

between the penalties proposed by the Secretary and those assessed by the judge, it "behooves" 

the judge to provide a sufficient explanation of the bases underlying the penalties. In the instant 

case, the judge utterly failed to provide the required analysis on all six elements. 

Marc Lincoln Marks, Commissioner 

1314 
Distribution 

Y oora Kim, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

David Hardy, Esq. 

Jackson & Kelly 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1315 
FEOERAL 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 

December 18, 1998 

Docket No. CENT 99-5-M 

A.C. No. 23-02064-05505 

GABEL STONE COMP ANY, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (1994) ("Mine Act"). On October 1, 1998, Gabel Stone Company, Inc. ("Gabel") 

filed with the Commission a request to reopen 19 penalty assessments which had become final 

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

Gabel explains that, on June 13, it received a collection letter from the Civil Penalty 

Compliance Office at the Department of Labor's Mine Safety and Health Administration 

("MSHA"). Mot. at 1. The operator states that it was "shocked to learn" that MSHA's 

enforcement activity had escalated to the point that MSHA sent a collection notice. Id. Gabel 

attached to its request a three-page table listing the date of issuance for each citation at issue, 

each citation number, and a brief discussion of the reasons Gabel feels each citation deserves 

review. 

On November 6, 1998, the Secretary of Labor opposed Gabel's request. The Secretary 

asserts that, while Gabel's prose submission has not specified the section or sections of Rule 

1316 
60(b) 1 of the Federal Rules of Civil Procedure on which it bases its request for relief, the 

Commission should apply Rule 60(b) to determine if relief is warranted in this case. S. Opp'n at 

7. She argues that the operator has failed to satisfy any of the requirements for obtaining relief 

under that standard. Id. at 9 & n.18. The Secretary contends that Gabel's request is untimely 

under Rule 60(b )(1) because it falls outside the one-year time limit applicable to motions filed 

pursuant to that rule, and, in any event, Gabel' s request fails to set forth reasons upon which the 

Commission could grant relief. Id. at 10-11. She also asserts that Gabel's request fails under 

Rule 60(b)(6) because the operator has not requested relief with a "reasonable time," has not 

shown that it was faultless in the delay, and has failed to present a meritorious defense. Id. at 12-

16. Finally, the Secretary contends that Gabel's receipt of the proposed penalties and the 

operator's existence for over 30 years weigh against a finding that Gabel was "surprised" that its 

failure to contest the proposed penalty resulted in MSHA's collection action. Id. at 11, 14 n.22. 

Under section 105(a) of the Mine Act, 30 U.S.C. § 815(a), an operator has 30 days 

following receipt of the Secretary of Labor's proposed penalty assessment within which to notify 

the Secretary that it wishes to contest the proposed penalty. If the operator fails to notify the 

Secretary within that time period, the proposed penalty assessment is deemed a final order of the 

Commission. 30 U.S.C. § 815(a). 

We have held that, in appropriate circumstances and pursuant to Rule 60(b ), we possess 

jurisdiction to reopen uncontested assessments that have become final under section 105(a). Jim 

1 Rule l(b) of the Commission's Procedural Rules provides that the Federal Rules of 

Civil Procedure shall apply "so far as practicable" in the absence of applicable Commission 

rules. 29 C.F.R. § 2700.l(b). 

Rule 60(b) states, in pertinent part: 

[T]he court may relieve a party ... from a final judgment, order, or 

proceeding for the following reasons: (1) mistake, inadvertence, 

surprise, or excusable neglect; (2) newly discovered evidence 

which by due diligence could not have been discovered in time to 

move for a new trial under Rule 59(b); (3) fraud (whether 

heretofore denominated intrinsic or extrinsic), misrepresentation, 

or other misconduct of an adverse party; ( 4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged, or a 

prior judgment upon which it is based has been reversed or 

otherwise vacated, or it is no longer equitable that the judgment 

should have prospective application; or (6) any other reason 

justifying relief from the operation of the judgment. 

Fed. R. Civ. P. 60(b). 

1317 
Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993); Rocky Hollow Coal Co., 16 

FMSHRC 1931, 1932 (Sept. 1994). Relief from a final order is available in circumstances such 

as a party's "mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(l). A 

Rule 60(b) motion "shall be made within a reasonable time, and for reasons (1), (2), and (3) not 

more than one year after the judgment, order, or proceeding was entered or taken." Fed. R. Civ. 

P. 60(b). This one-year time limit is an outside time limit for motions requesting relief under 

subsections (1) through (3). See 12 James Wm. Moore, Moore's Federal Practice 60.48[2], at 

60-167 to 60-168 (Donald R. Coquillette et al. eds., 3d ed. 1998); see United States v. Cirami, 

563 F.2d 26, 32 (2d Cir. 1977) ("[W]hen the reason asserted for relief comes properly within one 

of [the first three] clauses, clause (6) may not be employed to avoid the one-year limitation."). 

When the true grounds for relief are based on subsections (1) through (3), the one-year time limit 

applicable to those sections may not be circumvented by utilization of subsections ( 4) through 

(6) of Rule 60(b), which are subject only to a reasonable time limit. 

Gabel does not base its request for relief on Rule 60(b) or any of its subsections. See 

Mot. at 1-2. The operator merely asserts that, subsequent to its receipt of a collection notice from 

MSHA, it learned that the proposed penalties here at issue had become final Commission orders. 

Id. at 1. Gabel also makes a vague allegation that MSHA inspectors became "defensive" when 

disputes arose between Gabel and the inspector regarding MSHA' s enforcement of mandatory 

standards against Gabel. Id. Nonetheless, the explanations offered by Gabel for its failure to file 

a notice of contest for any of these proposed assessments could be characterized as requests for 

relief under Rule 60(b)(l) as mistake, inadvertence, surprise, or excusable neglect, or, to the 

extent that Gabel' s request for relief alleges misconduct on the part of MSHA, within Rule 

60(b )(3) as "fraud ... , misrepresentation, or other misconduct of an adverse party." Fed. R. Civ. 

P. 60(b)(3); see Lakeview Rock Prods., Inc., 19 FMSHRC 26, 28 (Jan. 1997). 

However, Gabel's request is untimely under Rule 60(b)(l) and 60(b)(3). See Lakeview, 

19 FMSHRC at 29; Thomas Hale, 17 FMSHRC 1815, 1816-17 (Nov. 1995); Ravenna Gravel, 14 

FMSHRC 738, 739 (May 1992); Pena v. Eisenman Chemical Co., 11FMSHRC2166, 2167 

(Nov. 1989). The certified mail receipts related to the proposed penalty assessments at issue 

reflect that Gabel received the proposed assessments between June 28, 1993 and February 5, 

1996. Pursuant to section 105 of the Mine Act, the last group of these proposed assessments 

became final Commission orders on March 6, 1996. See 30 U.S.C. § 815(a). Gabel's motion 

was filed on October 1, 1998, over two and one-half years after the last of the proposed penalty 

assessments had become final orders of the Commission. As we previously have recognized, the 

one-year time limit contained in the first three sections of Rule 60(b) "may not be extended." 

Lakeview, 19 FMSHRC at 29. Furthermore, we note that because Gabel's request falls within 

the coverage of either Rule 60(b)(l) or 60(b)(3), analysis under Rule 60(b)(6) is inappropriate 

here. See id. at 28; Cirami, 563 F.2d at 32. In any event, Gabel has failed to present sufficient 

explanation why it is entitled to relief from the final Commission orders. See Tanglewood 

Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995). Accordingly, we deny Gabel's request for 

relief under Rule 60(b ). 

1318 
For the foregoing "reasons, Gabel' s request for relief is denied. 

., Marc Lincoln Marks, Commissioner 

James C. Riley, Commissioner 

Theodore F. Verheggen, Commiss · 

Robert H. Beatty, Jr., Commissioner 

1319 
Distribution 

Gary H. Gabel 

Gabel Stone Company, Inc. 

2092 County Road 5900 

Willow Springs, MO 65793 

Jack Powasnik, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

1320 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

V. 

ARCH OF KENTUCKY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 18, 1998 

Docket No. KENT 97-197 

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

DECISION 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). At issue is the decision by Administrative 

Law Judge Avram Weisberger that Arch of Kentucky ("Arch") violated 30 C.F.R. § 75.1403-

6(b )(3)1 by failing to adequately maintain the sanding devices on a mantrip. 20 FMSHRC 73, 

7 5-78 (Jan. 1998) (ALJ). The Commission granted Arch's petition for discretionary review 

challenging the judge's determinations that it violated section 75.1403-6(b)(3) and that the 

alleged violation was significant and substantial ("S&S"). For the reasons that follow, we affirm 

the judge's decision. 

I. 

Factual and Procedural Background 

Arch operates the No. 37 mine, an underground coal mine in Lynch, Kentucky. Id. at 74. 

Just after midnight on February 4, 1997, eight miners, at the end of their shift, boarded the No. 14 

mantrip at the L-15 section of the mine. Id.; Tr. 156; Pet. Ex. 1 at 1. The mantrip traveled on 

steel tracks. Tr. 25. Miners Kenneth Russell, Kenneth Bolling, Vass Mellon, and William Carter 

1 Section 75.1403-6(b)(3) provides, in pertinent part, that "each track-mounted selfpropelled personnel carrier should .. ~ [b ]e equipped with properly installed and well-maintained 

sanding devices." 

1321 

"" 
sat in the outby passenger compartment facing the direction of travel. 20 FMSHRC at 74; Jt. Ex. 

2. Miners Otis Holcomb, Charlie Walker, Bill Toliver, and Billy Boggs sat in the inby passenger 

compartment facing the rear of the mantrip. 20 FMSHRC at 74; Jt. Ex. 2. Tony Cox, the 

mantrip operator, sat in a compartment in the middle of the mantrip between and above the two 

passenger compartments. Jt. Exs. 2 & 3. Plexiglas windows in the outby compartment allowed 

passengers to look forward in the direction of travel and allowed some of them, if they turned in 

their seats, to see the seated operator from his shoulder level and above. Tr. 27, 37, 61, 183-84. 

The No. 14 mantrip had a hand-controlled service brake to slow or stop the vehicle and a 

hand-controlled parking brake. Tr. 178-79. It also had sanders to provide traction to slow the 

mantrip, to prevent it from sliding on wet tracks, and to help it climb steep grades. 20 FMSHRC 

at 74. When activated, a sander released sand through a 2-inch opening onto the surface of the 

tracks in front of the wheels. Tr. 112. The mantrip had four sanders, one located above each 

wheel, that were controlled by the operator using hand levers. 20 FMSHRC at 74; Jt. Ex. 3. One 

lever operated the two outby sanders and the other lever operated the two inby sanders. Tr. 139-

40, 193. 

As the No. 14 mantrip traveled out of the mine on February 4, it entered a dip under an 

overcast.2 20 FMSHRC at 74. It was not able to climb out of the dip even though Cox attempted 

to activate the sanders. Id. He reversed the mantrip and successfully passed through the dip on 

his second attempt. Id. The mantrip continued its outby journey and, as it rounded a bend in the 

tracks, Cox and the passengers in the outby compartment saw the light of an approaching battery 

locomotive. Id.; Tr. 40, 58, 73, 96. Cox applied the brakes but the mantrip began to slide on the 

wet tracks and collided with the locomotive. 20 FMSHRC at 74; Tr. 91-92. 

As a result of the collision, Russell suffered a fractured lower leg, Carter received spinal 

injuries, and Bolling suffered a fractured ankle and two injured vertebrae. Tr. 41, 62-63, 93; Pet. 

Ex. 1 at 6. Immediately after the accident, Cox ran inby for help and encountered another 

mantrip about to make its second attempt to pass through the dip going outby. Pet. Ex. 1 at 1; Tr. 

105. The passengers on the mantrip included Shelby Brewer, an MSHA inspector, who was at 

the mine taking dust samples. 20 FMSHRC at 74; Tr. 102, 104-05. Inspector Brewer ran 

forward to the accident scene and then rode the No. 14 mantrip outby as it took the injured 

miners approximately 1000 feet to the mine portal. 20 FMSHRC at 74; Tr. 106. 

Approximately 20 minutes after the accident, Inspector Brewer and Bob Anderson, a 

miner's representative, examined the No. 14 mantrip on the surface. 20 FMSHRC at 74. 

Anderson operated a sander lever but no sand was released. Id. Inspector Brewer inspected the 

2 An overcast is defined as "[a]n enclosed airway that permits an air current to pass over 

another one without interruption." American Geological Institute, Dictionary of Mining, 

Mineral, and Related Terms 384 (2d ed. 1997). 

1322 
sander boxes and found they were half full and the sand inside was compacted. Id. According to 

Inspector Brewer, the sand in a sander box has to be dry and loose in order to release through the 

2-inch opening and fall on the track. Id. at 74-75; Tr. 112. Anderson tagged out the mantrip and 

moved it to the mine's repair shop. Tr. 107. Inspector Brewer told James Vicini, Arch's safety 

manager, that he might issue a citation to Arch because the sanders on the mantrip were not 

working. Tr. 161. 

On the night oft.he accident, Vicini started an accident investigation which lasted three or 

four weeks. Tr. 159-60, 171. He recorded the results of the investigation in an accident report 

(the "Arch report"). Pet. Ex. 1. On the morning of February 4, William Johnson, an MSHA 

inspector and accident investigator, arrived at the mine and spoke to Vicini and some miners, 

including Cox, about the accident. Tr. 117-18, 122. At approximately 10:00 a.m., Johnson 

examined one outby sander and one inby sander on the No. 14 mantrip and found that the sander 

boxes were half full and the sand inside was compacted. 20 FMSHRC at 75. On February 21, 

Johnson issued Citation No. 4581310 to Arch, alleging an S&S violation of section 75.1403-

6(b)(3). Jt. Ex. 5. Citation No. 4581310 charges that "the sanding device provided on the No. 14 

Brookville diesel track-mounted self-propelled personnel carrier was not working when the No. 

14 mantrip collided with the No. 25 battery powered track-mounted motor." Id. Arch contested 

the citation and the matter proceeded to hearing before Judge Weisberger. 

The judge held that Arch was responsible for an S&S violation of section 75.1403-

6(b)(3). 20 FMSHRC at 75-78. Based on the eyewitness testimony of the miners in the outby 

passenger compartment of the mantrip and on the supporting testimony of the MSHA inspectors, 

he concluded that the sanders did not function properly prior to the accident. Id. at 75-76. The 

judge did not assign significant weight to the hearsay testimony of Vicini that Cox told him thci.t 

the sanders were working when he came out of the dip, in part because Arch did not call Cox to 

testify and did not indicate that he was not available to testify. Id. The judge dismissed as. too 

speculative Arch's claim that the sanders became compacted after the accident due to exposure to 

water. Id. at 75. He also dismissed, for lack of any supporting evidence, Arch's claim that the 

mantrip had been inspected before the accident and found to be in working order. Id. 

The judge assessed Arch a penalty of $1019, finding the gravity of the violation relatively 

high and the operator's negligence moderate. Id. at 78. Arch subsequently filed a petition for 

discretionary review, challenging the judge's decision. 

IL 

Disposition 

Arch contends that the judge's findings that it violated section 75.1403-6(b )(3) and that 

the violation was S&S are not supported by substantial evidence. A. Br. at 1. It claims that the 

judge erred in relying on the testimony of the miners and MSHA inspectors about the condition 

of the sanders. Id. at 8-11. According to Arch, the judge committed prejudicial error by (1) 

1323 
failing to accord sufficient weight to Vicini's hearsay testimony about Cox's out-of-court 

statements, (2) disregarding the Arch report which it claims fell within an exception to the 

hearsay rule, and (3) preventing Arch from questioning Inspector Johnson during crossexamination about what Cox told him concerning his use of the sanders before the accident. Id. 

at 7, 11-15; A. Reply Br. at 6-8. Arch contends that the judge did not adequately weigh evidence 

that the sanders functioned properly immediately before the shift on which the accident occurred. 

A. Br. at 9-10; A. Reply Br. at 5. It also argues that the judge erred when he concluded the 

alleged violation was S&S because the Secretary failed to prove that (1) the violation occurred, 

(2) its contribution to the danger of a collision was "significant and substantial," and (3) it caused 

the collision. A. Br. at 17-19; A. Reply Br. at 8-9. 

The Secretary responds that the judge's decision is supported by substantial evidence. S. 

Br. at 9, 24. She contends that the eyewitness testimony of four miners and the testimony of two 

MSHA inspectors indicate that the sanders were not working properly prior to the accident. Id. 

at 9-14. She argues that the judge correctly found that Vicini' s testimony about what Cox told 

him was hearsay testimony and correctly gave it less weight than the eyewitness testimony of the 

miners. Id. at 16-18. The Secretary asserts that there is no evidence to support Arch's claims 

that the sand became compacted after the accident. Id. at 14-15. She contends that the judge was 

right to disallow Arch's question on cross-examination to Inspector Johnson, concerning what 

Cox had told him about the sanders, because it had already been testified to by other witnesses 

and because it went beyond the scope of the Secretary's direct examination. Id. at 20-21. 

Furthermore, she argues that even if the judge did err in disallowing the question, it only 

amounted to harmless error. Id. at 19-22. The Secretary also argues that the judge did not err 

when he found Arch's violation to be S&S, and asserts that proof that the violation caused the 

collision was not required to show that the violation was S&S. Id. at 22-23. 

A. Violation 

At issue in this case is whether the judge's conclusion that the sanding device on Arch's 

mantrip was not functioning when the mantrip collided with a locomotive (20 FMSHRC at 

75-76) is supported by substantial evidence.3 We conclude that it is. 

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

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

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

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

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

U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider 

anything in the record that "fairly detracts" from the weight of the evidence that supports a 

challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). So long as substantial evidence 

supports the judge's findings, the Commission does not substitute "a competing view of the facts 

1324 
Both post-accident inspections of the sanders indicated they were not working properly. 

Although Arch claims that no one inspected the mantrip until 10 hours after the accident (A. Br. 

at 5, 7), Inspector Brewer testified that he inspected the vehicle approximately 20 minutes after 

the accident. 20 FMSHRC at 7 4. He found that the sander boxes were half full, the sand inside 

was compacted, and the sand "looked like it hadn't been running" through the opening. Tr. 108. 

When Inspector Johnson inspected the mantrip later that morning, he found similar conditions. 

Tr. 124.4 

In crediting the testimony of Brewer and Johnson, the judge rejected as too speculative 

Arch's claims that the sand in the sanders may have become compacted after the accident from 

exposure to rain or when the mantrip drove through a water hole at the mine portal. 20 

FMSHRC at 75. Inspector Brewer testified that the small water hole at the mine portal had been 

"pumped down" when the mantrip drove through it and that it should not have affected the 

sanders. Tr. 110. The record also contains no evidence that the mantrip was exposed-to rain 

during the 20 minutes it was on the surface before it was inspected by Inspector Brewer or,, if it 

had rained during that time, that the rain had entered the sander boxes. Tr. 109. Inspector 

Brewer testified that the tops of the sanders were covered with lids. Id. 5 The judge also rejected 

Arch's argument that the sanders on the No. 14 mantrip had been inspected just before the shift 

on which the accident occurred and had been found to be functioning properly. 20 FMSHRC at 

75; Tr. 195-97. The judge reasoned that Arch provided no evidence based on personal 

knowledge concerning the pre-shift condition of the mantrip. 20 FMSHRC at 75. 

The judge also based his conclusion that the sanders were not maintained in working 

order on his findings that Cox attempted to use the sanders in the dip but they did not work. Id. 

at 75-76. Russell testified that, as the mantrip was attempting to pass through the dip, he called 

to Cox to use the sanders and he saw Cox operating the sander lever. Tr. 21-22, 26-27, 29. 

Russell said that he heard "a clunking sound, just metal against metal" coming from directly 

for the view the ALJ reasonably reached," even where some record evidence supports that 

competing view. Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 

1983). 

4 We note that both inspectors had extensive experience both in the mining industry and 

with MSHA. Tr. 99-100, 119. We also note that Inspector Johnson had a working knowledge of 

mantrip sanders and had special training in accident investigation. Tr. 117-18, 120-21. 

5 Arch also argues that, because the sander boxes were found to be half full of sand after 

the collision, the other half of the sand must have been used on the tracks before the accident. A. 

Br. at 9-10. However, there is nothing in the record from which such as inference could be 

drawn, such as evidence that the sander boxes were more than half full with sand when the 

mantrip began its outby trip just after midnight on February 4, or evidence that sand was found 

on the tracks after the accident. 

1325 
behind him where the sanders were located in the mantrip, and he inferred from this sound that 

Cox had activated the sanders. Tr. 27-28. He testified that the sanders were not effective 

because their activation did not create traction and the mantrip slid backwards into the dip. Tr. 

20, 22, 28-29. 

Bolling testified that some of the miners on the mantrip called to Cox to use the sanders 

when they were trying to get through the dip and that Cox replied, "I am, I am, I am." Tr. 59. 

Bolling said he saw Cox using the sander lever but, in his opinion, the sanders were not 

operational because they did not provide any traction. Tr. 59-60. Carter claimed that, as a 

passenger on a man trip, he knew if the sanders were being operated because they were located 

immediately behind the passengers' compartment and he could hear them being activated. Tr. 

89. He also claimed to know when the sanders were being activated because he could tell ifthe 

sand from the sanders was producing traction between the wheels and the tracks. Tr. 86. Carter 

said that, when the mantrip tried to pass through the dip, it 'just slid back down" even though he 

could hear Cox activating the sanders. Tr. 88-89. However, he also testified that it usually took 

a mantrip two or three attempts to get through the dip. Tr. 88. 

We also note that Russell claimed the mantrip began to slide on the wet tracks on the 

bend just before the accident. Tr. 36-37. Although he saw Cox using th~ sanders, he inferred 

that they were not working because he did not feel any traction and the mantrip did not slow 

down. Tr. 37, 39-40. He claimed that Cox locked the brakes but the mantrip continued to slide 

until it collided with the locomotive. Tr. 37. 

Bolling testified that the mantrip started to slide just before the accident and did not slow 

down before the collision. Tr. 61. He said that he heard someone tell Cox to activate the sanders 

and he heard Cox reply that he was activating them. Tr. 62. He also saw Cox operating the 

controls but could not tell ifhe was specifically operating the sanders. Tr. 61-62. Mellon 

claimed that the mantrip began to slide just before the accident. Tr. 73. Instead of slowing 

down, he said the mantrip continued to speed up, as if the sanders were not working, until it hit 

the locomotive. Tr. 73-74. 

Carter claimed that, just before the accident, Cox applied the brakes and the mantrip 

began to slide. Tr. 91. He believed that Cox then activated the sanders because they were 

immediately behind him and he could hear the "metal to metal" sound they made when they were 

activated. Tr. 91-93. He stated that he did not know ifthe activated sanders released any sand 

onto the tracks. Tr. 91. However, he claimed that the mantrip did not slow down as it should 

have done if sand was falling on the tracks and providing traction. Tr. 91-92. 

Arch offered contrary evidence that the sanders did lay down sand in the dip, and that 

Cox did not have time to apply them thereafter. Vicini testified that Cox told him that he 

activated the sanders and "laid sand down" while traveling through the dip. Tr. 168-69. 

According to Vicini, Cox claimed that the sanders worked at the dip because he heard the "kind 

of squeal" that he believed occurs when sand from the sanders causes traction between the 

1326 
wheels and the tracks. Tr. 169; Pet. Ex. 1 at 8. Vicini testified that Cox told him that, at the 

bend immediately before the accident, he applied the brakes but did not have time to use the 

sanders.6 Tr. 186, 202. Vicini also said that when he asked Cox, Walker, Holcomb, and Tolliver 

about the sanders shortly after the accident, none of them told him that the sanders had failed to 

work. 20 FMSHRC at 75-76; A. Br. at 8. 

noted: 

In crediting the Secretary's evidence over Vicini's testimony on behalf of Arch, the judge 

Vicini indicated that he had interviewed [several] miners who 

were passengers in the man trip at issue, and that none of them 

told him that the sanders did not operate. . . . They told him 

that the track was slick. However, Arch did not proffer the 

testimony of any of these miners, nor did it indicate that any 

of them were not available. I thus do not accord much weight 

to this hearsay testimony of Vicini. On the other hand, I observed 

the demeanor of Carter, Bolling, and Russell and found their 

testimony credible .... 

20 FMSHRC at 76. The judge also noted that Arch did not call Cox or the other miners 

interviewed by Vicini, or indicate that they were unavailable to testify. Id. 

We do not find Arch's evidence of sufficient weight to overturn the judge's conclusion 

that the testimony of the Secretary's witnesses was more credible than Cox's. In reaching this 

conclusion, we are guided by the principle that a judge's credibility determinations are entitled to 

great weight. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541(Sept.1992); Penn 

Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). We conclude that Arch has not offered 

"compelling reasons to take the 'extraordinary step' ofreversing the judge's credibility 

determination." See Fort Scott Fertilizer-Cul/or, Inc., 19 FMSHRC 1511, 1516 (Sept. 1997) 

(quoting Hall v. Clinch field Coal Co., 8 FMSHRC 1624, 1629 (Nov. 1986) ). 

Arch also argues that the judge erred by failing to address in his decision Cox's 

statements recounted by Vicini in the Arch report, which the operator contends falls within the 

business records exception to the hearsay rule. A. Br. at 11-12. We note, however, that hearsay 

rule exceptions are largely irrelevant in a Commission proceeding, in which hearsay evidence is 

admissible.7 29 C.F.R. § 2700.63(a); Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135-36 

6 The Arch report contains no information as to whether or not Cox used the sanders at 

the bend just before the collision. Pet. Ex. 1. 

7 Therefore, we need not reach the operator's contention that the Arch report falls within 

the business records hearsay exception. 

1327 
(May 1984). In fact, the judge admitted the report into evidence (Pet. Ex. 1 ), it having been 

offered by the Secretary for the purposes of cross-examining Vicini, the author of the report -

whose testimony regarding Cox's statements to him about the sanders the judge expressly 

discredited. 20 FMSHRC at 75-76. We find that the judge also implicitly discredited the report 

(see Fort Scott, 19 FMSHRC at 1516 (recognizing implicit credibility finding of judge)), and 

justifiably omitted it from his analysis. 

We agree with Arch (A. Br. at 12-16), however, that the judge erred during the hearing by 

sustaining an objection by the Secretary to the following question posed by Arch's counsel to 

Inspector Johnson on cross-examination: "When you talked to Mr. Cox, isn't it true that he told 

you that he had used the sanding device shortly before the accident?" Tr. 143. The Secretary 

objected to the question on the grounds that it was hearsay and that it was covered by the 

informer's privilege. Id. The judge's reasons for sustaining the objection were (1) the actions of 

Cox had already been testified to by other witnesses, (2) the question did not relate to anything 

that Inspector Johnson said on direct examination, and (3) Cox's answer to the question "appears 

to be covered by informer's privilege." Tr. 144. 

Contrary to the judge's ruling, the question put to Inspector Johnson was worded broadly 

enough to encompass actions by Cox that were not testified to by the previous witnesses. Nor do 

we agree with the judge that the question did not relate to matters testified to on direct 

examination. Inspector Johnson was asked on direct if he talked to anyone at the mine during his 

inspection. He answered: "I talked with the - both the men [sic] that was operating the mantrip 

and the gentleman that was operating the [locomotive]." Tr. 122. This opened the door to 

Arch's later question on cross-examination concerning part of that conversation. See United 

States v. Hitchman, 609 F.2d 1098, 1100-01 (5th Cir. 1979) (holding that trial judge improperly 

restricted cross-examination of subject matter raised on direct examination). 

Finally, we conclude that the question on cross-examination was not covered by the 

informer's privilege. This privilege is codified in Commission Procedural Rule 61, which states 

that "[a] judge shall not, except in extraordinary circumstances, disclose or order a person to 

disclose to an operator or his agent the name of an informant who is a miner." 29 C.F .R. 

§ 2700.61. The privilege also protects the content of a communication if its disclosure would 

tend to reveal the identity of the informer. Asarco, Inc., 12 FMSHRC 2548, 2554 (Dec. 1990). 

The informer's privilege, however, does not apply to the question on cross-examination because 

the operator already knew Cox's identity and that he had communicated with the inspector about 

the accident. Tr. 122, 142, 185; see Roviaro v. United States, 353 U.S. 53, 60 (1957) (holding 

that privilege does not apply if informer's identity is known); Secretary of Labor on behalf of 

Gregory v. Thunder Basin Coal Co., 15 FMSHRC 2228, 2236 (Nov. 1993) (finding that 

informer privilege may be waived if person's identity as informer is known). 

Although the judge erred when he sustained the objection, we conclude that his error was 

harmless. First, Vicini subsequently testified to what Cox said he did with the sanders at the 

bend immediately before the accident. Tr. 186, 201-02. Moreover, we do not believe that Cox's 

1328 
out-of-court statements to Johnson could have overcome the credited testimony of Carter, 

Bolling, and Russell concerning Cox's use of the sanders, together with evidence about the 

condition of the sanders observed after the accident. 

In sum, we conclude that, based on the testimony of the two MSHA inspectors that the 

sanders were not functioning properly before the accident, and the evidence provided by the four 

miners concerning what took place prior to the accident, the record as a whole contains 

substantial evidence to support of the judge's decision that Arch violated section 75.1403-6(b)(3) 

in the manner alleged. 

B. Significant & Substantial 

The "significant and substantial" terminology is taken from section 104( d) of the Mine 

Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if,·based on 

the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div., 

Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 

1984), the Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

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

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

a reasonable likelihood that the hazard contributed to will result in 

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

will be of a reasonably serious nature. 

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

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

Mathies criteria).8 

8 Commissioner Marks agrees that this violation is S&S. However, for the reasons set 

forth in his concurring opinions in United States Steel Mining Co., 18 FMSHRC 862, 868-75 

(June 1996), and Buffalo Crushed Stone, Inc., 19 FMSHRC 231, 240 (Feb. 1997), he continues 

to urge that the ambiguous language of the Commission's Mathies test, 6 FMSHRC at 3-4, be 

replaced with a clear test that is consistent with Congressional intent. On February 5, 1998, 

MSHA issued a lengthy Interpretative Bulletin, setting forth a new agency interpretation of S&S 

and announcing that MSHA would challenge the Commission's narrow interpretation ofS&S. 

63 Fed. Reg. 6012 (1998). However, on April 23, 1998, MSHA suspended that Interpretive 

Bulletin with little explanation. Id. at 20,217. Commissioner Marks is curious as to MSHA's 

change in position on the S&S question and requests, as he has done so on numerous occasions, 

1329 
We have already held that substantial evidence supports the judge's decision that Arch 

violated section 75.1403-6(b)(3). We reject Arch's argument that, because the judge only 

examined whether the violation contributed to the hazard of a collision but failed to examine 

whether its contribution was "significant and substantial," the judge erred in analyzing the 

second element. A. Br. at 18. In fact, the judge's careful delineation of the four Mathies 

elements, including his finding that the failure to properly maintain the sanders may have led to 

reduced traction and thereby contributed to the hazard of a collision, resulted in his ultimate 

conclusion that the violation significantly and substantially contributed to a hazard. 

We also reject Arch's contention that, because the judge did not find that the violation 

caused the collision, he erred in determining that the second Mathies element was satisfied. Id. 

at 18-19. Under Commission precedent, the Secretary does not have to show that a violation 

caused an accident in order to prove that the violation is S&S. See Youghiogheny & Ohio Coal 

Co., 9 FMSHRC 673, 678 (Apr. 1987) ("In order to establish the significant and substantial 

nature of the violation, the Secretary need not prove that the hazard contributed to actually will 

result in an injury causing event."). Finally, insofar as Arch's causation argument can be 

understood to challenge the judge's determination that the third Mathies element was established, 

we conclude that, based on Arch's failure to maintain the sanders and the mantrip's frequent trips 

on tracks with downgrades and curves, substantial evidence supports the judge's finding that a 

reasonable likelihood existed that the failure to maintain the sanders would result in an injury. 

20 FMSHRC at 78. 

that the Secretary promptly advise him on this important issue. 

1330 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's decision that Arch violated section 

75.1403-6{b)(3) and that the violation was S&S. 

Marc Lincoln Marks, Commissioner 

--.;c::::: )iQ ( / 

Robert H. Beatty, Jr., Commissi 

1331 
Distribution 

Marco M. Rajkovich, Esq. 

Robert I. Cusick, Esq. 

Melanie J. Kilpatrick, Esq. 

Wyatt, Tarrant & Combs 

250 West Main Street, Suite 1700 

Lexington, KY 40507 

Stephen D. Turow, 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 

Office of Administrative Law Judges 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1332 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

EASTER.i"\J RIDGE LIME, LP 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 2, 1998 

Docket No. VA 96-21-M 

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

ORDER 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). Following an evidentiary hearing, 

Administrative Law Judge Avram Weisberger determined that Eastern Ridge Lime, L.P. 

("Eastern Ridge"), violated 30 C.F.R. §§ 57.3360 and 57.3201 and that both violations were 

significant and substantial ("S&S") and resulted from Eastern Ridge's unwarrantable failure. 1 

See 19 FMSHRC 398 (Feb. 1997). The judge assessed a total penalty of$85,000. Id. at 407, 

409. 410. The Commission thereafter denied a petition for discretionary review filed by Eastern 

Ridge. 

Subsequently. Eastern Ridge filed a petition for review in the United States Court of 

Appeals for the Fourth Circuit. In an unpublished decision, the court affirmed in part and 

vacated and remanded in part the Commission's decision. Eastern Ridge Lime, L.P. v. 

F.:.\ISHRC. No. 97-1579 (4th Cir. Apr. 13, 1998). The court upheld the findings of violation (slip 

op. at 5-6), but on a 2-1 vote concluded that the judge's S&S determinations were inadequately 

supported because. while the judge did not make a finding that the violations caused the fatal 

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

§ 814( d). which distinguishes as more serious in nature any violation that "could significantly 

and substantially contribute to the cause and effect of a ... mine safety or health hazard." The 

unwarrantable failure terminologv is also taken from section 104(d) of the Act and refers to more ~- - serious conduct by an operator in connection with a violation. 

1333 
accident, he relied on the contribution of the violations to the accident in reaching his S&S 

determination. Id. at 6-7. Stating that the error "becomes most consequential in the ALJ's 

imposition of penalties," in that he relied on the high level of gravity of the violations in 

assessing the penalties, the court remanded this case "for further factfinding and analysis of the 

penalties to be assessed." Id. at 7. 

On June 5, 1998, the court issued its mandate in this matter, returning the case to the 

Commission's jurisdiction. Pursuant to the Court's order, we remand this matter to the judge for 

further consideration consistent with the court's decision. 

Marc Lincoln Marks, Commissioner 

ames C. Riley, Commissioner 

--;--=~~4 ) ~ -

·-) 

Robert H. Beatty, Jr., Commiss· ner 

1334 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET, N.W., SUITE 600 

WASHINGTON, D.C. 20006 

IN RE: CONTEST OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

December l, 1998 

MASTER DOCKET No. 91-1 

OBDER OF DISMISSAL 

The Commission has been advised that on November 5, 1998, the Mine Safety and 

Health Administration issued notices that citations have been vacated to all operators with cases 

pending under the Master Docket, a list of which is attached to this order. 

Accordingly, it is ORDERED that all cases in the Master Docket are hereby 

DISMISSED. 

=------\~,--=-~---

Paul Merlin 

Chief Administrative Law Judge 

1335 

• 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

December 2, 1998 

CONSOLIDATION COAL COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION, (MSHA), 

Respondent 

and 

UNITED MINE WORKERS OF AMERICA, 

(UMWA), 

Intervenor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA), 

Intervenor 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. WEVA 93-77-R 

Citation No. 3109521; 11/09/92 

Docket No. WEV A 93-78-R 

Order No. 3109522; 11/09/92 

Docket No. WEV A 93-79-R 

Order No. 3109523; 11/09/92 

Docket No. WEV A 93-80-R 

Order No. 3109524; 11/09/92 

Blacksville No. 1 Mine 

Mine ID No. 46-01867 

CIVIL PENAL TY PROCEEDINGS 

Docket No. WEVA 93-146-B 

A.C. No. 46-01867-03938 

Docket No. WEVA 93-146-C 

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; 

Before: 

Judith Rivlin, Esq., United Mine Workers of America, Washington, D. C., 

on behalf of the Intervenor; 

David J. Hardy, Esq., and William Miller, Esq., Jackson & Kelly, Charleston, 

West Virginia, on behalf of Consolidation Coal Company. 

Judge Melick 

1336 
A methane explosion at the production shaft of the Consolidation Coal Company 

(Consol) Blacksville No. 1 Mine on March 19, 1992, caused the death of four miners and 

injuries to two others. Following an investigation, the Secretary of Labor issued citations and 

orders for alleged violations under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq., the "Act." These proceedings, formerly consolidated under Master Docket WEVA 

93-146-B, concern one of those citations and three of the orders issued by the Secretary to 

Consol and the civil penalties of $200,000 proposed by the Secretary for the violations charged 

therein. The general issue before me is whether Consol violated the cited regulatory standards 

and, if so, whether those violations were "significant and substantial" and/or the result of 

Consol's "unwarrantable failure" to comply with those standards. If violations are found it will 

also be necessary to determine the appropriate civil penalty to be assessed considering the criteria 

under Section 11 O(i) of the Act. 

At the time of the explosion, the Blacksville No. 1 Mine was under the administrative 

control of Consol's Northern West Virginia Regional Office (Regional Office). Van Pitman was 

manager in charge of operations for the Regional Engineering Office within the Regional Office. 

Rodney Baird and Russell DeBlossio worked in the Environmental Quality Control Department 

within the Regional Engineering Office and were supervised by Edward Moore. Charles Bane 

was regional manager for safety in the Regional Office and John Yerkovich was his assistant. 

Donzel Ammons was vice-president for Blacksville operations under the Regional Office and 

had supervisory authority over operations at both the Blacksville Nos. 1 and 2 Mines. Daniel 

Quesenberry was Ammon's assistant. Robert Levo was superintendent of the Blacksville No. 1 

Mine and Jack Lowe was its mine foreman. 

In March 1992, the Blacksville No. 1 Mine was known to be liberating "excessive 

quantities of methane" as defined in Section 103(i) of the Act as it was liberating over one 

million cubic feet of methane in a 24-hour period. The mine ceased coal production in June 

1991, and, in early 1992, was closing down. Activities at the mine during January through 

March 1992, therefore consisted primarily of maintenance, equipment withdrawal, supply 

recovery and coal loading from surface stockpiles and silos. The Department of Labor's Mine 

Safety and Health Administration (MSHA) was informed of Consol's intent to abandon the mine 

by Charles Bane's letter dated February 3, 1992 (Resp. Exh. No. 3). In that letter, MSHA was 

advised that the mine was in the process of withdrawing production equipment and that all the 

shafts would be sealed simultaneously after the underground areas of the mine had been vacated. 

In February 1992, Consol officials decided to install an 800-foot-long dewatering pipe 

into the production shaft to prevent water from accumulating underground and from seeping into 

adjacent mines. The production shaft had been used to transport coal out of the mine by a skip 

hoist. According to the approved ventilation plan, the shaft had also been intaking 187 ,880 cubic 

feet of air per minute ( cfm). The Regional Engineering Office was responsible for installing the 

pipe. Van Pitman, regional manager of engineering, directed Ed Moore, supervisor of 

environmental quality control, to arrange for its installation. Moore then contracted with 

independent contractor M.A. Heston to install the pipe and ordered the materials needed to 

complete the project. 

1337 
Mine management was responsible for constructing a working platform over the shaft. 

Ammons decided to cap the production shaft before withdrawing from the mine in order to 

facilitate the installation of the dewatering pipe. He assigned the project to Quesenberry, his 

assistant, who arranged for independent contractor Forest Construction to perform the job. Leon 

Slough, a foreman for Forest Construction, was responsible for the actual construction of the cap. 

Contact with MSHA on matters relating to ventilation plans normally went through 

Consol's regional safety office. Terry Palmer, coal mine inspector/ventilation, was the MSHA 

contact on ventilation matters for the Blacksville No. 1 Mine. John Yerkovich, Consol's regional 

safety inspector, verbally informed Palmer of the proposal to cap the production shaft. Palmer 

testified that he told Yerkovich that the change in ventilation which would result from capping 

the shaft would have to be approved by MSHA's district manager as a revision to the ventilation 

plan. Yerkovich testified on the other hand, that he was told by Raymond Strahin, also an 

MSHA ventilation inspector, that mere written notification ofthis change would be sufficient. 

Strahin denied making any such statement. 

In any event, following his conversation with Palmer, Yerkovich submitted a letter to 

MSHA dated March 3, 1992, regarding the capping of the production shaft (Gov't Exh. No. 27). 

This letter did not indicate when the production shaft would be capped nor did it indicate that a 

welded dewatering pipe would be installed through the cap and into the shaft. Consol proceeded 

to build the cap over the production shaft without receiving any response from MSHA to the 

March 3, 1992, letter. Palmer later drafted a letter in response to the March 3rd letter for the 

signature ofMSHA District Manager Ronald L. Keaton (Gov't Exh. No. 29). Although the letter 

was drafted the week before the explosion and was dated March 16, 1992, it was not actually 

mailed to Consol until March 19, 1992, after MSHA had been notified of the explosion. 

Palmer recommended to Keaton that they seek additional information about capping the 

production shaft because it was unclear why Consol was deviating from its original plan to cap 

all the shafts at the mine. According to Bane's February 3, 1992, letter, Consol originally 

planned to cap all the shafts after the underground areas of the mine had been vacated (Resp. 

Exh. No. 3). Palmer believed that capping the shaft required approval by the district manager 

because it changed the information submitted in the ventilation plan as required by the 

regulations, then at 30 C.F.R. § 75.316. Specifically, on page five of the approved ventilation 

plan the production shaft was reported to intake 187 ,800 cfm of air (Gov't Exh. No. 26). Palmer 

believed that section 7 5 .316 required MSHA approval of revisions to ventilation plans. The 

previous ventilation plan approval letter also included the notation that "all changes or revisions 

to the ventilation plan must be submitted and approved before they are implemented" (Gov't 

Exh. No. 26). 

As noted, Consol arranged for Forest Construction to design and construct the cap for the 

production shaft and contracted with M.A. Heston to install the dewatering pipe into the shaft 

(Gov't Exh. No. 8). Consol had :frequently used the services of these as well as other 

independent contractors. Indeed, all jobs done by Consol's Regional Engineering Department 

involved independent contractors. On this job, Forest Construction had hourly crews working 

exclusively for Consol, and Consol directed their work. Leon Shough, foreman for Forest 

1338 
Construction also reported to Consol foreman John Carter on a daily basis. M.A. Heston also 

worked for Consol almost on a daily basis. They had previously worked many jobs for Consol. 

However, at the time Moore contracted with M.A. Heston for this job neither he nor DeBlossio 

was aware that M.A. Heston's employees had never taken methane examinations. In addition 

Michael Heston and James Heston, respectively, testified that M.A. Heston's employees did not 

have experience with mine ventilation and were not qualified to make methane examinations. 

Moore explained to Heston how the job would be done, including the configuration of the 

support structure, the preparation of the pipe segment, and how to seal the area around the 16-

inch dewatering pipe to prevent welding sparks from entering the shaft. 

Officials from Consol, Forest Construction and M.A. Heston conferred on methods to 

construct the cap to allow work to be performed over the production shaft and to support the 

weight of the dewatering pipe. Initially, Consol's Regional Engineering Department had 

suggested using a partial covering over the production shaft, permitting additional ventilation to 

enter the shaft. A fireproof partition was also suggested to prevent sparks from entering the 

shaft. This was a procedure used successfully at three other jobs. Donzel Ammons decided 

however to completely cap the shaft. Officials from regional engineering were not consulted on 

this decision and did not learn of it until the cap had already been installed. Vice president for 

Blacksville operations, Dan Quesenberry, who was involved in these early discussions, did not 

recall that any consideration was given to using a partial cap. The decision was made by 

Ammons. 

The cap was built over the production shaft based on a standard design previously used 

by Consol (Gov't. Exh. No. 24). It was constructed of 114-inch steel plating welded onto sixinch I-beams with concrete over the top and down the sides. A 22-inch square opening was left 

in the center through which the dewatering pipe would be installed and a structure of21-inch 

steel I-beams was built to support the installation of the 16-inch dewatering pipe. In addition, 

two six-inch diameter steel pipes were welded to the steel plate in the cap to provide ventilation 

of the production shaft. Each pipe projected three feet above the cap and was topped with a 

valve and a six-inch diameter plastic PVC pipe. The PVC pipes added 10 feet to one pipe and 8 

feet to the other (See Gov't Exh. No. 34A). Additional ventilation of the production shaft would 

be provided by air entering around the dewatering pipe in the 22-inch opening. 

Ammons (vice president of Blacksville operations) made the decision to utilize the two 

six-inch pipes for ventilation. This was standard procedure for capping a shaft the size of the 

production shaft when sealing an area of the mine and Ammons determined that these pipes 

would provide adequate ventilation. He relied upon his own experience. He did not consult with 

any of Consol's engineers or rely upon any simulations or studies. He did not know the methane 

liberation rate in the shaft nor how much air was intaking through the six inch pipes nor the 

velocity of that airflow. Ammons assumed that the air intaking through one six-inch pipe alone 

would have been sufficient to ventilate the production shaft. He had never been involved in a 

project such as this where welded pipe segments were installed through a cap. Other Consol 

officials including Quesenberry, Morrison, Pittman, Lowe, and Bane also acknowledged that they 

had never been involved in a similar project. 

1339 
Ammons told Quesenberry that he wanted threaded pipe to be used for the dewatering 

pipe so there would be no welding over the shaft. He was concerned with igniting grease in the 

shaft. Although he maintained that he was not concerned with a methane ignition, he 

acknowledged that he was aware of the potential for methane in the shaft. Quesenberry later told 

the regional engineering office that he wanted threaded pipe used to avoid cutting and welding 

over the shaft. After meeting with regional engineering officials, Quesenberry understood that 

threaded pipe would be used. Quesenberry later learned that they intended to use welded pipe 

only after the pipe arriv~d at the mine. When Ammons learned that the pipe received was not 

threaded pipe, he told Quesenberry to have it returned. Ammons had also been uninformed that 

the regional engineering office had decided to use welded pipe rather than threaded pipe. When 

the pipe arrived, Ammons called Van Pitman, who explained to Ammons that threaded pipe 

would not hold the weight of the casing. 

When Ammons assigned the capping job to Quesenberry he maintains that he instructed 

him to be sure to put two pipes in it and make sure everybody knew that those pipes were to be 

left open for ventilation. Ammons maintains that he therefore assumed that Quesenberry would 

have informed M.A. Heston's employees as well as Consol's personnel from regional 

engineering, the mine and the regional safety department of the necessity to keep the two pipes 

open. Ammons claims that he also told mine superintendent Levo that the two ventilating pipes 

were to remain open. He did not, however, personally ensure that those pipes were kept open 

and survivors who had been working at the production shaft testified that they were not informed 

of the importance of the pipes (Tr. 126, 205, 437, 508). 

Quesenberry acknowledged, moreover, that he never informed M.A. Heston's workers 

about the purpose for the ventilation pipes. In addition he could not remember discussing this 

issue with Moore, Baird or DeBlossio. Quesenberry also could not recall whether Ammons told 

him to make sure that the people working on the job knew that those pipes were to remain open. 

Quesenberry maintains that he did not learn until after the explosion that one of the ventilation 

pipes had been cut off and plugged. He testified that if he had been present at the worksite and 

saw that one of the pipes had been closed, he would have stopped the work. He was shocked 

when he learned that one of the pipes had been cut. 

During the week of March 9, M. A. Heston personnel began construction of the cap 

support structure and preparation for the first segment of 16-inch pipe. Consol regional 

engineering officials, primarily Moore, instructed M. A. Heston personnel on how to perform the 

work. According to Moore, Consol designed the 21-inch I-beam support structure based upon 

previous jobs. On Thursday, March 12, Forest Construction personnel began installing the steel 

framework for the production shaft cap. The 21-inch I-beam support structure was placed on top 

of the cap using Consol's crane. Concrete was then poured over the top of the metal portion of 

the cap and over the sides. The 21-inch I-beam support structure protruded above the concrete. 

On March 13, Consol prevented the oncoming shift of underground personnel from 

entering the mine while the steel framework and decking for the production shift cap were 

installed over the shaft. Between 7:20 a.m. and 7:50 a.m., the effects of the ventilation change 

underground were evaluated by Consol personnel. The mine was deemed safe to enter and 

1340 
miners then proceeded underground around 8:15 a.m. to 9:00 a.m., to continue removing mine 

equipment. The evaluation of capping the production shaft consisted of the same procedures as 

followed during a preshift examination and took approximately 30 minutes to complete. The fan 

charts on the surface were also checked. Those charts would not, however, have shown the 

effects of capping on the airflow within the shaft itself. 

Placement of the cap over the production shaft reduced the airflow within the shaft from 

about 187,000 cfm to about 7,350 cfm (Gov't Exh's 53, pp 6-7 and 13, pp 19-20). Mine foreman 

Jack Lowe traveled underground to the bottom of the production shaft at around 11 : 00 a.m. He 

released a smoke cloud from a smoke tube into the bottom of the shaft and observed the smoke 

travel toward himself, indicating a drift of airflow down the shaft. He did not measure the 

velocity of this airflow. After the cap was installed over the production shaft, three openings 

remained in the cap--the two 6-inch diameter pipes and the one 22-inch diameter opening. All 

three openings were initially intaking air into the production shaft. 

There is no evidence that any evaluation was done to determine what effect the capping 

of the production shaft had on the air flow within the shaft itself. While Consol officials Moore 

and DeBlossio testified that they believed that two 6-inch pipes would provide adequate 

ventilation for the production shaft they admittedly did not know the amount of air intaking 

through the pipes and did not know the amount of methane being liberated into the shaft. 

DeBlossio and Mine Superintendent Levo also both acknowledged that such information would 

be necessary to determine the adequacy of the ventilation in the shaft. Indeed, Levo testified that 

a reasonably prudent mining engineer would want to know the amount of air intaking through the 

pipes to make a determination of whether the ventilation was adequate. 

Environmental Engineer Rodney Baird and Environmental Technician Russell DeBlossio, 

from Consol's Regional Engineering Department, were assigned to oversee the installation of the 

dewatering pipe. Baird was at the worksite on Thursday, March 19, and was killed in the 

explosion. DeBlossio was at the worksite on Monday and Wednesday but was not present at the 

time of the explosion. Baird was certified to make methane examinations and had a working 

methane detector in his truck at the worksite. However, neither Baird nor DeBlossio had any 

experience in underground ventilation. DeBlossio was even unaware that the Blacksville No. 1 

Mine was considered to be a gassy mine. 

DeBlossio testified that he and Baird spent the better part of the day, on both Monday and 

Wednesday, at the production shaft. Although they were present to basically monitor job 

progress, both DeBlossio and Baird participated in the physical labor. They helped line up the 

pipe when a new segment was lifted over the shaft and helped place the Thermoglass cloth 

around the pipe. DeBlossio testified that he believed that he had the authority to stop work if he 

thought that M.A. Heston's employees were performing unsafely. 

On Monday, March 16, M.A. Heston's employees arrived at the mine to organize 

materials and set-up the worksite for the installation of the 16-inch casing into the production 

shaft. M.A. Heston employees began installing the 16-inch casing on Tuesday, March 17, 

following the procedures depicted in Government Exhibit No. 15. This installation process was 

1341 
conceived by Consol based upon previous jobs. These procedures were followed on March 18, 

and continued until the explosion at approximately 10:18 a.m.; on March 19. 

The first joint of 16-inch casing had been plugged to prevent welding sparks from 

entering the shaft through the pipe. As each new length of pipe was added, the area around the 

pipe was sealed with two steel plates cut to fit around it and then with layers of Thermoglass 

cloth, to prevent welding sparks from entering the shaft around the pipe (Gov't Exh. No. 15 

Drawings 2-7). The steel plates and Thermoglass cloth would be positioned around the casing 

just before the weight of the casing was placed on the support structure. While these procedures 

were designed to prevent sparks and hot materials from the welding process from igniting grease 

and dust in the shaft, Consol officials were also aware of the potential for methane in the shaft. 

The 6-inch ventilation pipes were incorporated into the cap in order to provide ventilation which 

was intended, at least in part, to dilute methane in the shaft. With the plugged 16-inch casing in 

place and the steel plates and Thermoglass cloth covering the area around the 16-inch casing, the 

airflow within the production shaft was reduced to approximately 790 cfm (Gov't Exh. No. 13, 

pp 21-22). 

On Tuesday, March 17, Rodney Baird and M. A. Heston employees cut off one of the 6-

inch vent pipes in the cap because it was interfering with the placement of the 16-inch 

dewatering pipe segments over the cap, thereby leaving 6 to 12 inches of the vent pipe extending 

above the cap. A ball of either Thermoglass cloth or burlap was then placed inside the pipe and a 

second piece of the material was then wrapped over top of the pipe and wired in place thereby 

sealing it. With only one of the 6-inch vent pipes intaking air into the production shaft, the 

airflow within the shaft was then reduced to only about 400 cfrn (Gov't Exh. No. 13, pp 22-23; 

Gov't Exh. No. 53, p 11). 

Levo visited the production shaft site on several occasions while the work was 

progressing. On one of those occasions, he observed that one of the two vent pipes was closed. 

According to Levo, Baird explained that they were having trouble swinging the segments of 16-

inch pipe into position because the vent pipe was in the way. They discussed cutting the pipe and 

installing a coupler on the pipe. Levo could not recall whether he told Baird of the importance of 

keeping the pipe open. 

Later that day, Levo received a call, possibly from Baird, requesting that a guillotine saw 

be brought to the production shaft to cut the vent pipe. Levo instructed Leon Shough to deliver 

the saw to the production shaft. Levo knew that the saw was to be used to cut off one of the vent 

pipes, but thought that a valve would be installed to allow the pipe to remain open. He never 

inquired, however, to determine whether such a valve had been installed and he never instructed 

Baird to reopen the pipe. Levo assumed that Baird would know enough to reopen the pipe but 

did not know whether Baird had training or experience with ventilation matters. Baird's 

supervisor, Edward Moore also knew that one of the 6-inch vent pipes was cut and either covered 

or plugged. 

Installation of the dewatering pipe proceeded all day on Wednesday, March 18, from 

around 7:00 a.m. to 7:00 p.m., and resumed at approximately 7:30 a.m., on Thursday. Baird and 

1342 
DeBlossio were present at the production shaft for most of the day on Wednesday. 

Approximately 12 segments of pipe were installed by Wednesday afternoon. One welder was 

working at the production shaft on Wednesday. The same procedures were followed on 

Thursday but two welders were working. The addition of the second welder reduced the time 

needed to complete a joint from about 40 minutes or an hour to about 25 minutes. 

Around 10:18 a.m., on March 19, there was a methane explosion in the production shaft, 

completely destroying. the cap and damaging large portions of the shaft coping and the lower 

support structure of the head frame. Overcasts, cribs, stoppings, and the rotary dump in the 

underground areas within 100 feet of the shaft were also damaged. Rodney Baird, Frederick 

Heston, Donald Glaspell, and Robert Moran, who were working on or around the production 

shaft cap, were killed and James Heston and Gordon Lawson were injured. 

Both the Secretary's expert, John Urosek, and Consol's expert, Donald Mitchell, 

concluded that, at the time of the explosion, the airflow in the production shaft beneath the cap 

had been reduced to no more than 400 cfm (Gov't Exh. No. 53, p 7 and 56, p 10). While it is not 

disputed that one of the two 6-inch ventilation pipes had been sealed, it is unclear whether the 

second ventilation pipe was open and intaking air at the time of the explosion. Both experts 

agree however that the amount of air flowing through one six-inch pipe, about 400 cfm, would 

not have been sufficient to dilute and render harmless the methane being liberated from around 

the shaft (Gov't Exh. No. 53 p.11 Tr. 2276) 

Citation No. 3109521 

This citation, issued pursuant to section 104(d)(l) of the Act, charges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 75.301 (1991) and alleges, in essential part, 

as follows: 1 

The volume and velocity of air was not maintained in sufficient amounts to render 

harmless and to carry away explosive gases. An explosive methane/air mixture 

was allowed to accumulate in the production shaft which is a portion of the active 

workings of the Blacksville No. 1 Mine. The mine has a known history of 

1

/ Section 104(d)(l) 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 safety standard, and ifhe 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 tothe operator under this Act. If, during the same 

inspection or any subsequent inspection of such mine within 90 days after 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. 

1343 
methane liberation and, in addition, methane was being liberated from within the 

shaft itself. 

* * * * 

On March 19, 1992, the methane accumulation was ignited as 

M. A. Heston, Inc., employees performed welding operations during the 

installation of the 16-inch casing. 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, 30 C.F.R. § 75.301 (1991), provided in relevant part as follows: 

All active workings shall be ventilated by a current of air containing not 

less than 19.5 volume per centum of oxygen, not more than 0.5 volume per 

centum of carbon dioxide, and no harmful quantities of other noxious or 

poisonous gases: and the volume and velocity of the current of air shall be 

sufficient to dilute, render harmless, and to carry away, flammable, explosive, 

noxious, and harmful gases, and dust, and smoke and explosive fumes. 

Respondent argues that there was no violation of the cited standard because the 

production shaft at issue was not within the "active workings" of the mine. It is undisputed that 

the ventilation requirements set forth in 30 C.F.R. § 75.301 (1991), indeed, apply only to "active 

workings" of an underground coal mine. The term "active workings" was defined at 30 C.F.R. § 

7 5 .2(g)( 4) (1991) as "any place in a coal mine where miners are normally required to work or 

travel." 

There is no evidence in this case that any person worked or traveled or normally worked 

or traveled in the production shaft after the shaft was capped on Friday, March 13, 1992. The 

Secretary nevertheless argues that it is sufficient that miners were working and traveling above 

and below the shaft and that the dewatering pipe, on which the miners above were working, 

extended into the shaft. In other words, the Secretary interprets the words "above" and "below" 

to mean "in." It is well established however, that where the language of a regulatory provision is 

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

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

absurd result. Dyer v. United States, 832 F.2d 1062, 1066 (91

h Cir. 1987); see also Utah Power & 

Light Co., 11 FMSHRC 1926, 1930 (October 1989); Consolidation Coal Co., 15 FMSHRC 

1555, 1557 (August 1993). The Secretary nevertheless maintains that her interpretation is 

"reasonable" and therefore is entitled to deference. However, since there is no ambiguity in 

regard to use of the term "in," the doctrine of deference is inapplicable. In any event, one would 

be hard pressed indeed to find the Secretary's proffered interpretation to be reasonable. 

Under the circumstances the Secretary has failed to sustain her burden of proving the 

elements of a violation of the cited standard and the citation at bar must accordingly be vacated. 

1344 
Order:No.3109522 

This order, also issued pursuant to section 104(d)(1) of the Act, alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 77.1112(b) (1991) and charges in essential 

part as follows: 

Consolidation Coal Company (Consol) did not perform or require methane 

examinations a,t the capped Production shaft where M.A. Heston, Inc., an 

independent contractor (I.D. B48), was performing welding operations. M.A. 

Heston, Inc. employees were positioned on top of the shaft cap performing 

welding operations during the installation of a 16-inch casing on March 17, 18, 

and 19, 1992. The welding operations was observed by various Consol 

management personnel. Also, a Consol Environmental Engineer was present at 

the worksite nearly continuously observed by various Consol management 

personnel. Also, a Consol Environmental Engineer was present at the worksite 

nearly continuously on the 11h and 18th and had arrived at the Production shaft 

site on the 19th. The Consol Environmental Engineer directly participated in the 

working being performed by M. A. Heston, Inc. employees. A methane detector 

that had been issued to and was in the possession of the Consol Environmental 

Engineer was available at the worksite. :No one conducted or required 

examinations for methane at any time. 

* * * * 

The Production shaft had been capped on March 13, 1992. The 16-inch 

casing and other ventilation restrictions were introduced into the cap openings on 

March 17, 1992. Calculations indicate that the ventilation of the shaft was 

significantly reduced from approximately 200,000 cubic feet of air per minute 

( cfm) to approximately 400 cfm. The mine has a known history of methane 

liberations and, in addition, methane was being liberated form within the shaft 

itself. 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 30 C.F.R. § 77.1112(b), (1991) provides as follows: 

Before welding, cutting, or soldering is performed in areas likely to 

contain methane, an examination for methane shall be made by a qualified person 

with a device approved by the Secretary for detecting methane. Examinations for 

methane shall be made immediately before and periodically during welding, 

cutting, or soldering and such work shall not be permitted to commence or 

continue in air which contains 1.0 volume per centum or more of methane. 

Consol maintains that there was no violation of the cited standard because: (1) methane 

was not likely to accumulate at the location where welding was actually performed, i.e., above 

the cap, and (2) welding was not performed below the cap, i.e., the area that was likely to contain 

1345 
methane on Thursday, March 19, 1992. Consol's reading of the standard is however 

unreasonably narrow and would clearly defeat the underlying purpose of the standard. As the 

Secretary correctly observes, the clear purpose of the standard is to prevent welding operations 

from igniting methane. Accordingly the methane examinations required by that standard must 

appropriately be made in areas within the range or zone of likely ignition from such welding 

and, in this case, including the area beneath the cap. 

The Secretary has. in this case established, and it appears to be undisputed, that the area 

beneath the cap was an area likely to contain methane under conditions that existed on March 19, 

1992. The methane explosion itself is prima facie proof of this. From air readings taken at the 

production shaft after the accident, laboratory experiments and computer simulations, the 

Secretary's ventilation expert, mining engineer John Urosek, determined that with only one of 

the six-inch pipes intaking air into the shaft, the volume of air was approximately 400 cfm (Gov't 

Exh No. 13, 53). This is corroborated by Consol's expert in mine fires and explosions, Donald 

Mitchell, who agrees that MSHA' s analysis of the quantities of air passing into the production 

shaft was fairly accurate (Respondent's Exh's No. 56 p. 9). Urosek testified that an air flow of 

approximately 400 cfm correlates to an average velocity of approximately one-foot per minute 

(Gov't Exh. No. 13 p 23 and Gov't Exh. 53 p. 11). Urosek opined that such an air flow was 

inadequate to dilute, render harmless and carry away methane being liberated from the shaft. As 

a result, it may reasonably be inferred that once one of the six-inch vent pipes was closed, 

methane, which is lighter than air, had begun accumulating under the cap. 

Mitchell corroborates Urosek in acknowledging that, with only one of the six inch pipes 

intaking air, there was a potential for explosive concentrations of methane to accumulate beneath 

the cap (Tr. 2169, 2276). Mitchell determined that, with one-six inch vent pipe open, the average 

concentration of methane immediately beneath the cap was 4.1 percent. Mitchell acknowledged 

that this was not an acceptable concentration of methane (Respondent's Exh. 9 at page 6, Tr. 

23 7). In addition, Mitchell agreed that the atmosphere beneath the cap was not a homogenous 

methane/air mixture. Thus, it may reasonably be inferred that there were likely to be areas 

beneath the cap with concentrations of methane within the explosive range of five to fifteen 

percent (Tr. 2275). Significantly, the cited standard applies not merely to areas likely to contain 

explosive levels of methane but to areas containing any methane. 

I further find that the area beneath the cap (an area likely to contain methane) was within 

the area or zone affected by welding above the cap. In this case such welding could have 

provided an ignition source for methane below the cap by an electrical arc from a welding 

machine improperly grounded above the cap to a steel "I" beam. The "I" beam extended below 

the cap into the methane atmosphere. Indeed Consol's expert, Donald Mitchell, agreed with the 

Secretary that the ignition source for the methane explosion in this case was most likely the 

improper grounding of the second welding machine onto one of the "I" beams extending under 

the cap. Accordingly, under the cited standard, methane examinations were required to be 

performed in the area immediately below the cap. 

Consol appears to further argue that, while it admittedly failed to make methane 

examinations in the area beneath cap, such examinations were not feasible and, even if feasible, 

1346 
would not produce accurate results. Consol however has the burden of proving the infeasibility 

or impossibility of compliance with the standard and has failed in this burden. The feasibility of 

performing methane examinations beneath the cap was in any event credibly established at 

hearing, e.g. by the use of an extendable probe (Tr. 846, 2018) or flexible tubing which could 

have been lowered into the shaft (Tr. 515, 2022; Gov't Exh No. 55), or by using sampling pipes 

incorporated into the cap. (Tr. 2021). Moreover, speculation concerning the potential accuracy 

of such tests is no defense to the failure to take such tests. The violation is accordingly proven as 

charged. 

The Secretary maintains that the violation was "significant and substantial." A violation 

is properly designated as "significant and substantial" if, based on the particular facts 

surrounding that violation, there 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 explained: 

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

significant and substantial under National Gypsum the Secretary 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 third element of the Mathies formula requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result in an event in which there is an 

injury (US Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such 

injury must be evaluated in terms of continued normal mining operations without any 

assumptions as to abatement. US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); 

See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co., 13 

FMSHRC 912, 916-17 (June 1991). 

There can be no dispute that the violation of failing to conduct methane examinations 

beneath the cap before and during welding operations in this case was a "significant and 

substantial" violation and of the highest gravity. 

The Secretary also maintains that the violation was the result of Consol's "unwarrantable 

failure" to comply with the cited standard. Unwarrantable failure is defined as aggravated 

conduct constituting more than ordinary negligence. Emery Mining Corporation, 9 FMSHRC 

1997 (December 1987). It is characterized by such conduct as "reckless disregard," "intentional 

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

Pittsburgh Coal Company, 13 FMSHRC 189, 193-194 (February 1991). Relevant issues 

therefore, include such factors as the extent of a violative condition, the length of time that it 

existed, whether an operator has been placed on notice that greater efforts are necessary for 

1347 
compliance, and the.operator's efforts in abating the violative condition. Mullins and Sons Coal 

Company, 16 FMSHRC 192, 195 (February 1994). 

This mine was a known "gassy" mine and Consol officials admitted that they knew 

methane could be liberated into the production shaft. While Consol was accordingly negligent in 

failing to perform methane examinations beneath the cap I do not find that such negligence rises 

to the level ofunwarrantability. First, it could reasonably have been perceived that methane was 

not likely to accumulate above the cap so that not testing at that location would not be violative. 

Second, it could also have been perceived, although incorrectly, that the welding was to be 

performed in a separate and discrete area above, and separated by, the concrete cap. Third, 

methane examinations were in fact performed at the bottom of the shaft where several Consol 

witnesses reasonably and in good faith believed (because of the direction of airflow into the 

shaft) would be the location where methane from within the shaft, if it existed at all, would have 

been detectable. Finally, the most likely ignition source in this case, an electrical arc from an 

improperly grounded welding machine, was not an obvious source of ignition. 

OrderNo.3109523 

This order, also issued pursuant to section 104(d)(l) the Act, alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 75.316, (1991) and charges as follows: 

The approved ventilation system and methane and dust control plan for 

this mine was not followed in that a major change in ventilation was made 

without the approval of the MSHA District Manger. This change occurred on 

March 13, 1992, when the Production shaft was capped. The capping operation 

included the forming of a 22-inch opening in the cap to facilitate the placement of 

a 16-inch diameter casing into the shaft and also included the installation of two 

6-inch diameter pipes. 

The placement of the cap reduced the ventilation of the shaft to the amount 

entering through the two 6-inch diameter pipes and through a 22-inch diameter 

hole in the cap. Calculations indicate that the airflow in the shaft was reduced 

from approximately 200,000 cubic feet of air per minute ( cfm) to approximately 

7,500 cfm. Mine officials treated the capping operation on March 13, 1992 as a 

major ventilation change by removing all personnel from the mine during the 

capping operations except those persons necessary to evaluate the change. The 

placement of the cap on the Production shaft was followed on March 17, 1992 by 

the preplanned installation of the 16-inch diameter casing onto the 22-inch 

opening in the cap and the subsequent cutting-off and plugging of one of the 6-

inch pipes. These two actions further reduced the airflow through the Production 

shaft and allowed an explosive methane/air mixture to accumulate in the shaft 

where work was being performed on top of the shaft cap and in underground 

areas of the mine. 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. 

1348 
The cited standard, 30 C.F.R. § 75.316, (1991) which tracks section 303(0) of the Act, 

provides in relevant part that: "[a] ventilation system and methane and dust control plan and 

revisions thereof suitable to the conditions of the mining system of the coal mine and approved 

by the Secretary shall be adopted by the operator." The regulation further requires that "[t]he 

plan shall show ... such other information as the Secretary may require." It is also noted that 

when the extant ventilation plan was approved, the accompanying letter sent to Consol stated that 

"[y ]ou are reminded that all changes or versions to the ventilation plan must be submitted and 

approved before they are implemented." 

While acknowledging that it did not obtain approval from the Secretary before capping 

the production shaft, Consol maintains that there was no violation of the cited standard because it 

was not in fact required to obtain the Secretary's approval for ventilation changes resulting from 

capping the production shaft. Consol argues that MSHA enforcement practices in March 1992, 

and its own prior dealings with the MSHA District 3 ventilation enforcement official, resulted in 

its reasonable and good faith belief that approval by the MSHA district manager was not required 

before capping the production shaft. There is indeed credible evidence that, as a general rule, 

approval by the MSHA district manager had not previously been required prior to the capping of 

mine shafts when the mine was being sealed. This case is clearly distinguishable however since 

the shaft here at issue was not sealed but remained partially open to allow the insertion of a 

dewatering pipe and to continue intaking air for ventilation. MSHA's prior practice regarding 

the sealing of mine shafts is therefore inapplicable hereto. 

Most significantly, however, the Secretary has proven by a preponderance of credible 

evidence that a responsible agent of Consol, John Yerkovich, who was assistant to the regional 

manager for safety of Consol's Northern West Virginia Regional Office, was specifically 

informed that MSHA approval would be required before capping the production shaft. The 

evidence shows that contact with MSHA on matters relating to ventilation plans ordinarily went 

through Consol's Regional Safety office and that MSHA inspector Terry Palmer was the contact 

at MSHA on ventilation matters for the Blacksville No. 1 Mine. As previously noted, John 

Yerkovich told Palmer of the proposal to cap the production shaft. Palmer testified that he told 

Yerkovich that the change in ventilation which would result from the capping of the shaft would 

have to be approved by the MSHA district manager as a revision of the ventilation plan. While 

Yerkovich testified that he was told by Raymond Strahin, also an MSHA ventilation inspector, 

that written notification would be sufficient, I do not find this testimony credible. Both Palmer 

and Strahin denied at hearing that Yerkovich was told that written notification was sufficient and 

Yerkovich in his own deposition contradicts his testimony at hearing. The following colloquy 

from his deposition demonstrates this contradiction: 

Q. But in your conversation with Mr. Palmer and Mr. Strahin, is that right, Strahin?-

(Deponent indicating) 

Q. - they indicated to you in no uncertain terms that they though that you needed prior 

approval; is that right? 

A. That's correct. 

1349 
Q. Which would have indicated that you needed a response before the job could go 

forward? 

A. Ifl agreed to what they were saying, that's correct. 

Q. Did you express to Mr. Ammons that the MSHA inspectors had said that to you? 

A. Yes ma'am. 

Q. What was his response? 

A. He agreed with me. 

* * * * 

Q. I may have misheard before, but I heard you say you communicated to Mr. Ammons 

the MSHA sense that this was to be communicated to MSHA, correct? 

A. I told Mr. Ammons that they had requested me to submit something for approval, that 

the cap was going to be put on the shaft. 

* * * * 

Q. So you clearly made it clear to Mr. Ammons that it was their opinion this needed to 

be approved by MSHA, Since that this was to be communicated to MSHA, correct? 

A. Yes sir, I believe I said that before. 

Q. You certainly understood that to mean approval before the cap, not after the cap, 

didn't you? 

A. Well, any time you apply for approval it means before. (Gov't Exh. No. 52, pp. 83-84, 

108-09) 

In addition, Yerkovich never stated in his deposition that he was told by Strahin that 

written notification was sufficient. Significantly, Yerkovich also admitted at hearing that he told 

both Ammons and Bain that MSHA's position was that prior approval for capping the production 

shaft was required (Tr. 1219, Gov. Exh. No. 51 p. 128). This testimony further undermines 

Yerkovich' s denials that he was told that prior approval for capping the production shaft was 

required. I therefore find that Consol, through its agent, John Yerkovich, was specifically placed 

on notice that capping the production shaft was a revision to the ventilation plan therefore 

requiring prior submission of plans and MSHA approval for the capping. Under the 

circumstances, Consol's deliberate failure to have submitted plans for capping the shaft and 

proceeding to cap the shaft without such approval, constituted a violation of the cited standard. 

It is reasonably likely that Consol's action in capping the shaft without prior review of 

such action by MSHA would lead to the inadequate ventilation of the production shaft and a fatal 

1350 
methane explosion. The violation was therefore of high gravity and "significant and substantial." 

Since I find that an agent of Consol was directly and specifically told of the necessity of 

obtaining MSHA' s prior approval for the capping job and that Consol deliberately disregarded 

this directive, operator negligence was of a particularly aggravated nature showing reckless 

disregard. The violation was clearly therefore the result of Consol's gross negligence and 

"unwarrantable failure" to comply. 

Order No. 3109524 

This order, also issued pursuant to section 104(d)(l) of the Act, alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 75.322, (1991) and charges as follows: 

Consolidation Coal Company (Consol) conducted a change in ventilation 

on March 13, 1992 and again on March 17, 1992. The changes had a cumulative 

effect which materially affected the split of air ventilating the Production shaft. 

Miners were allowed to work before the effects of the changes were fully 

ascertained by mine management or a certified person. 

On March 13, 1992, Consol directed the Production shaft to be capped. 

The capping of the shaft reduced ventilation in the shaft to the amount entering 

through two 6-inch diameter pipes and through a 22-inch diameter hole in the cap. 

Calculations indicate that the airflow in the shaft was reduced by the placement of 

the cap from approximately 200,000 cubic feet of air per minute ( cfm) to 

approximately 7 ,500 cfm. Mine officials treated the capping operation on March 

13, 1992 as a major air change. All electric power was removed from the affected 

area during the capping operation. Consol evaluated the ventilating changes 

underground: however, Consol did not evaluate the change to the air split 

ventilation the Production shaft itself before allowing miners to return to work. 

On March 17, 1992, Consol directed a second material change to the air 

split ventilating the Production shaft when a plugged length of 16-inch diameter 

casing was installed through the 22-inch diameter hole in the Production shaft cap 

and the remaining portion of the 22-inch diameter hole was sealed. In addition, 

one of the 6-inch diameter pipes was cut off and sealed. Calculations indicated 

that the changes made on March 17, 1992·reduced the ventilation of the 

Production shaft from approximately 7,500 cfm to approximately 400 cfm. The 

March 17, 1992, change was conducted while miners were working underground 

and on top of the capped Production shaft. Consol did not make an evaluation of 

the split of air ventilating the Production shaft following the changes made on 

March 17 and miners were permitted to continue to work both underground and 

on the Production shaft cap following the change. 

The mine has a known history of methane liberation and, in addition, 

methane was being liberated from within the shaft itself. Consol's failure to 

determine that the Production shaft had a significant methane liberation rate and 

1351 
whether the shaft was adequately ventilated following the ventilation changes 

allowed an explosive methane-air mixture to accumulate lindetected in the shaft 

while work was being performed on the shaft cap and in the underground mine. 

On March 19, 1992, the methane accumulation was ignited as employees of M. A. 

Heston, Inc., an Independent contractor, performed welding operations during the 

installation of the 16-inch casing through the Production shaft cap. 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, 30 C.F.R. § 75.322, (1991), which tracks section 303(u) of the Act, 

provides as follows: 

Changes in ventilation which materially affect the main air current or any 

split thereof and which may affect the safety of persons in the coal mine shall be 

made only when then the mine is idle. Only those persons engaged in making 

such changes shall be permitted in the mine during the change. Power shall be 

removed from the areas affected by the change before work starts to make the 

change and shall not be restored until the effect of the change has been ascertained 

and the affected areas determined to be safe by a certified person. 

The requirements of Section 75.322 are applicable when both parts of the first sentence of 

the standard are met, i.e., the change must materially affect a split of air and it must affect the 

safety of persons in the mine. There is no dispute in this case that the reduction of airflow within 

the production shaft affected the safety of persons in the mine. It is the first part of the standard, 

requiring that the change in ventilation "materially affect the main air current or any split 

thereof' that is at issue. 

The order at bar charges in essence that Consol made ventilation changes on March 13 

and on March 17 that materially affected the split of air ventilating the production shaft and that 

miners were allowed to work before the effect of the changes was fully evaluated.2 It is 

undisputed that on March 13, the cap over the production shaft was completed and that this 

change reduced the airflow in the production shaft from approximately 187,000 cfm to 

approximately 7,350 cfm. It is further undisputed that on March 17, the plugged 16-inch casing 

was inserted into the 22-inch hole in the cap and sealed with steel plates and Thermoglass cloth. 

In addition, on that date one of the two 6-inch diameter vent pipes was cut and stuffed with 

Thermoglass cloth or some other material which caused a further reduction of air flow within the 

production shaft to approximately 400 cfm. 

2

While Consol expressed some disagreement in its post-hearing brief that the Production Shaft could be characterized 

as a "split" of air, even its own vice-president for the Blacksville operations, Donze! Ammons, conceded that it was a "split" of 

air. 

1352 
Consol argues, in essence, that the ventilation changes on March 13 and March 17 must 

be considered separately not cumulatively and that the March 17 reduction in airflow from about 

3,750 cfm to about 400 cfm did not materially affect the split of air ventilating the production 

shaft. The term "materially" is not defined in the Act or pertinent regulations. It is defined, as 

relevant hereto, in Webster's New Third International Dictionary (unabridged) as "to a 

significant extent or degree." By application of this common definition it is clear that a reduction 

in airflow from approximately 7,350 cfm to 400 cfm, more than a 94% percent reduction, would 

have affected the airflow in the production shaft to a "significant degree." Indeed, even Consol's 

expert witness, Donald Mitchell, agreed that the reduction from 7,350 cfm to 400 cfm was a 

large reduction and would have a material affect (Tr. 2302, 2309). Within this framework of 

evidence, it is clear that Consol was therefore required to follow the procedures set forth in the 

cited standard following the reduction in air flow on March 17, 1992. When it failed to do so it 

was in violation of that standard. 

In reaching these conclusions I have not disregarded Consol's claims that the reduction 

on March 17, was not material because the change was less than 9, 000 cfm. . Consol relies in part 

upon MSHA's Program Policy Manual relating to §75.322, which provides as follows: 

Any ventilation change in which any split of air is to be increased or decreased by 

an amount equal to or in excess of 9,000 cfm shall be made only when the mine is 

idle. Before mine power can be restored in all areas affected by such ventilation 

changes, an examination is required in accordance with Section 75.303. 

While this language does provide that any change of 9,000 cfm or more triggers the 

requirements of the standard it clearly does not preclude application of the standard to ventilation 

changes ofless than 9,000 cfm. Consol further relies, in support of its argument herein, upon 

statements by MSHA Inspectors Palmer, Sperry and Dinning and former MSHA subdistrict 

manager William Reid, that they considered 9000 cfm as the threshold for triggering the 

applicability of §75.322. However, each of these individuals except Sperry clarified that, 

depending upon the circumstances, the requirements of §75.322 may also apply to ventilation 

changes ofless than 9,000 cfm (Tr. 1164, 1175, 1414, 1538, 1856). While there is also some 

disagreement among Consol witnesses, both Bane and Wooten admitted that the purpose of the 

standard, to prevent exposure to potentially hazardous conditions resulting from ventilation 

changes, may be furthered even when an air change is less than 9,000 cfm (Tr. 1718, 1799). 

Under the circumstances however, I conclude that the provisions Section 75.322 were 

triggered on March 17, so that all persons other than those making the changes were required to 

be removed from the mine, the power removed from the affected areas and the effects of the 

change ascertained. Consol's failure to follow these procedures constituted a violation of the 

cited standard. The violation was, under the facts at bar, also clearly "significant and substantial" 

and of high gravity. 

I do not find however, that the violation was the result of unwarrantable failure. The 

Secretary argues that several Consol officials (including Levo, Moore, DeBlossio and Baird), 

were aware that one of the 6-inch vent pipes had been cut. It may also reasonably be inferred 

1353 
that Baird and DeBlossio also knew that the pipe had been sealed, thereby limiting the 

ventilation of the shaft. The Secretary further argues that Consoi officials failed to notify those 

actually working on the project presumably including Baird and DeBlossio, of the importance of 

the two vent pipes, and that this failure constituted aggravated conduct amounting to 

unwarrantable failure. However, because four of the miners working on the project were killed, 

the Secretary cannot sustain her burden of proving what was communicated to those miners or 

what knowledge those miners had regarding the importance of the vent pipes. Her argument 

herein is therefore without the necessary evidentiary support. Consol was not, however, without 

negligence because of its failure to maintain the level of supervision and control warranted by the 

activities at the production shaft. 

Civil Penalty Assessments 

In assessing a civil penalty under Section 11 O(i) of the Act, consideration is to be given to 

the operator's history of previous violations, the appropriateness of the penalty to the size of its 

business, the effect on the operator's ability to continue in business, good faith abatement, 

negligence, and gravity. Consol is a large company and there is no evidence that its ability to 

continue in business would be affected by a penalty as high as that proposed by the Secretary. 

The Secretary acknowledges that all charging documents were satisfactorily abated. The gravity 

and negligence relating to these violations have previously been discussed. Within this 

framework of evidence I assess the civil penalties set forth in the Order below. 

ORDER 

Citation No. 3109521 is hereby vacated. Order No. 3109522 is modified to a "significant 

and substantial" citation under Section 104(a) of the Act and Consolidation Coal Company is 

directed to pay a civil penalty of $10,000 for the violation charged therein. Order No. 3109523 is 

modified to a citation under Section 104(d)(l) of the Act and Consolidation Coal Company is 

directed to pay a civil penalty of $50,000 for the violation charged therein. Order No. 3109524 is 

modified to a "significant and substantial" citation under section 104(a) of the Act and 

Consolidation Coal Company is directed to pay a civil penalty of $10,000 for the violation 

charged therein. ~ . '-

/ t 

·~ 

GaryMelilk 

AdministrAtive Law Judge 

1354 
Distribution: 

Robert S. Wilson, Esq., U.S. Department of Labor, Office of the Solicitor, 4015 Wilson 

Boulevard, Room 516, Arlington, VA 22203 (Certified Mail) 

David Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

Judith Rivlin, Esq., Associate General Counsel, United Mine Workers of America, 900 15th 

Street, N.W., Washington, DC 20005 (Certified Mail) 

\mca 

1355 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STSGRAVEL, 

Respondent 

December 8, 1998 

CIVIL PENAL TY PROCEEDING 

Docket No. WEST 97-284-M 

A.C. No. 24-01501-05510 

STS Gravel 

DECISION 

Appearances: Kristi Floyd, Esq., Office of the Solicitor, 

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

for Petitioner; 

Before: 

John M. Kauffman, Esq., Kasting, Combs & Kauffman, P.C., 

Bozeman, Montana, 

for Respondent. 

Judge Cetti 

This case is before me upon a petition for assessment of civil penalties under sections 

105(d) and 1 IO of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. the 

"Mine Act." The Secretary of Labor, on behalf of the Mine Safety and Health Administration, 

(MSHA), charges STS Gravel with four violations involving the brakes on a rubber tired frontend loader. Three of the citations allege a violation of 30 C.F.R. § 56.14101(a) and the fourth 

citation alleges a violation for failure to report the defects in the braking system that are cited in 

the first three citations. The total proposed penalty for these 4 violations involving the brakes on 

the 980-B front-end loader is $12,500.00. 

The STS Gravel Mine is a multiple bench open pit sand and gravel operation located near 

Livingston, Park County, Montana. It is owned and operated by Larry Stands. Mr. Stands is a 

working owner-operator and had only one other employee who did actual mining work rather 

than indoor clerical work. Thus, STS Gravel is essentially a small two-man mining operation 

consisting of the working owner operator, Mr. Stands, and the decedent Mr. Beagle. 

1356 
Basically, the accident involved a rollover of a front-end loader as it traveled in first gear 

down the grade of the cut into the gravel pit. Mr. Beagle, the operator of the front-end loader, 

involved in the accident had been repeatedly driving the loader down into the pit and extracting 

material from the pit which he then transported and fed to the crusher. Tracks could be seen 

where the loader had proceeded down the cut into the pit. The accident occurred at the steepest 

grade near the bottom of the cut when the right front tire of the loader hit and climbed the wall of 

the pit as the left front tire continued to travel down the decline. The action of the right front 

wheel climbing the pit wall and the left front wheel continuing down the decline caused the 

loader to tum over on its left side. It is undisputed that the loader was traveling forward in first 

gear and that the maximum speed of the loader in first gear is 4 to 5 miles per hour. 

Two days after the accident, MSHA inspected the braking system on the front-end loader 

and found inadequate service brakes and parking brakes. MSHA also found a small air leak in 

the diaphragm of the air-activated service brake mechanism, and also found a low air pressure 

warning device located on the instrument panel of the loader was nonfunctional. The purpose of 

the warning device was to indicate to the operator that the air pressure of the braking system was 

dropping. If it continued to leak and the air pressure dropped below a certain point ( 40 psi), it 

would activate the parking brake in a manner that would "halt" the loader. 

It is the operator's contention that the accident was not caused by the defects in the 

braking system but by the fact the operator of the loader, who was in poor health, was 

unconscious or severely distracted and for this reason, failed to steer the loader that was traveling 

in first gear at only 4 or 5 miles per hour in a manner that would have avoided striking the pit 

wall and, thus, would have easily avoided the accident. 

Respondent entered in evidence the reports and testimony of the Park County 

undersheriffHenry Tashijian and the testimony and report of the deputy coroner, Mr. Mike 

Fitzpatrick. The report and testimony of both of these officers tend to support Respondent's 

contention that the defects in the braking system was not the cause of the accident. 

The report of the county undersheriff (Res. Ex. F-2) states in part: 

Faint tracks could be seen where the loader proceeded down into 

the pit at approx. 20-30 degrees to the wall of the pit, causing the 

right tire of the loader to climb the wall, which overturned the 

loader. The accident appeared to have happened at slow speed as 

there were no marks made by the loader to indicate that it had 

rocked or bounced after it overturned, or that it hit the wall at a 

high rate of speed. It also appeared that Beagle was unconscious 

after the loader came to rest, as the position of one of his arms was 

on the door frame, and any movement of Beagle trying to extricate 

himself or just the movement of his arm would have left visible 

marks in the dust on the frame. It appears that no action was taken 

1357 
by Beagle (steering, dropping the bucket) to avoid hitting the wall 

or stopping the loader. I had Stands explain the gear shift pattern 

on the loader to me before I had him check (with me present) to see 

what gear the loader was in. The loader was in first gear, forward. 

The report of Mr. Fitzpatrick, the deputy coroner, (Res. Ex. E) states in part: 

The physical evidence at the scene indicated there was no speed or 

erratic action of the loader. It appeared the operator was 

completely distracted or possibly unconscious at the time of the 

accident. Due to the appearance of no action taken by the operator 

to steer off the bank or later to try to extract himself from the 

loader, I believe the operator was unconscious at the time of the 

accident and died at the scene of mechanical asphyxiation. 

The coroner's report states that the autopsy by the county coroner revealed that there 

were no external or internal injuries. It is also undisputed Mr. Beagle had one lung and part of 

the right rib cage surgically removed prior to the accident. His remaining lung showed some 

signs of emphysema. Due to his diminished capacity to breathe and the position his body was in 

after the accident, the coroner concluded that Mr. Beagle's death was caused by mechanical 

asphyxiation. 

STIPULATIONS 

Stipulations entered into the record at the request of the Respondent are as follows:. 

A. STS Gravel operates a gravel quarry near Livingston, Montana. 

B. On or about October 11, 1996, it was issued citations by the Mine Safety and Health 

Administration, and that these citations are 7921013, 7921014, 7921015 and 7921016. 

C. Prior to the accident, Mr. Beagle had one lung removed and his remaining lung 

showed signs of emphysema. 

D. At or about the time of the accident, Mr. Beagle was operating a 980-B Caterpillar 

front-end loader. 

E. Mr. Beagle was an experienced operator of the 980-B Caterpillar front-end loader. 

Stipulations entered into the record at the request of the Petitioner are as follows: 

1. Respondent engaged in the mining and selling of gravel in the United States, and its 

mining operations affect interstate commerce. 

1358 
2. Respondent is the owner and proprietor of the STS Gravel Mine, MSHA Number 24-

01501-S. 

3. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801, et seq., (the Act). 

4. The Administrative Law Judge has jurisdiction in the matter. 

5. Respondent is a mine operator with 3,016 tons/hours of production in 1996 as reported 

in quarterly reports by Respondent to MSHA. 

Citation No. 7921013 (service brakes) and Citation No. 7921014 (parking brakes) 

The 980-B front-end loader had air-actuated drum/shoe service brakes. It was equipped 

with an air-actuated service brake mechanism and a spring-actuated emergency parking brake 

mechanism in each brake chamber. There were six air brake chambers, four on the front axle 

(two per wheel) and two on the rear axle (one per wheel). The brake system automatically 

provided positive braking at all four wheels when the system air pressure dropped to 

approximately 40 pounds per square inch (psi). The spring-actuated mechanism could also be 

applied manually with a dash-mounted control valve when setting parking brakes. 

Measurements were taken of the distance that each air chamber push rod traveled upon 

applying the service brake. The four front rods each traveled 2.5 inches, the left rear push rod 

traveled 2.75 inches, and the right rear push rod traveled 3 inches. These measurements were in 

excess of the manufacturer's service manual recommendation which states that brake adjustment 

is needed when travel of a brake chamber rod exceeds a maximum of 2 inches. 

Both Citation No. 7921013 and Citation No. 7921014 allege a violation of 30 C.F.R. 

§ 56.14101(a). Section 1 of the regulation concerns service brakes and in pertinent part reads as 

follows: 

(a) Minimum requirements. (1) Self-propelled mobile equipment 

shall be equipped with a service brake system capable of stopping 

and holding the equipment with its typical load on the maximum 

grade it travels. 

Section (2) of the above regulation concerns parking brakes and provides: 

(2) If equipped on self-propelled mobile equipment, parking 

brakes shall be capable of holding the .equipment with its typical 

load on the maximum grade it travels. 

1359 
The steepest grade on which the loader traveled was 25 degrees which was located at the 

bottom of the cut into the pit where the accident occurred. 

MSHA performed appropriate tests of the loader braking system. These tests clearly 

establish a violation of this mandatory minimum requirement of both the service brake system 

and the parking brakes. Neither the service brake or the parking brake was capable of holding 

the front-end loader on the maximum grade it traveled. 

I credit the testimony of Inspector Laufenberg and Inspector Marti explaining how and 

where the tests were conducted. I credit their testimony that these tests clearly demonstrated 

violations of the cited safety regulations. Both violations are affirmed. Both violations were 

significant and substantial (S&S) violations 

S&S violations and the appropriate penalty will be discussed below under appropriate 

headings. 

Citation No. 7921015 

This citation alleges an S&S violation of the third section 30 C.F.R. § 56.14101(a). The 

third section in its entirety simply provides "All braking systems installed on the equipment 

shall be maintained in functional condition." 

The citation in pertinent part states: 

The recovery of the loader from the accident site and the 

mechanical inspection was made on October 11, 1996. The 

inspection revealed defects in the audio and visible air pressure 

indicator unit, a component part of the braking system. Because of 

the defects, the operator would not have audio warning on low air 

pressure. 

Inspector Laufenberg testified that the front-end loader had a warning air pressure 

indicator that was not functional. This indicator is a component of the braking system. In the 

event the braking system air pressure drops below 77 psi, a light and buzzer are activated. The 

inspector conceded that failure of this warning indicator to work does not affect the functioning 

of the service brake or parking brake. This warning device is a separate component, which gives 

a warning that the air pressure is dropping and that "if it continues to drop, the parking brake is 

going to set up." When the air pressure drops to around 40 psi, there is a spring in a cannister 

that automatically applies the parking brake that "halts" the equipment. (Tr. 28). 

On cross examination Inspector Laufenberg admitted that the loader had another 

component of the braking system, an air pressure gauge, that was fully functional. This 

functioning pressure gauge visually shows the operator the amount of air pressure in the braking 

system by merely looking at the pressure gauge. Thus, the operator can tell the status of the 

braking system's air pressure without the non-functioning component that was cited. It is also 

1360 
noted there is no specific legal requirement that the front-end loader be equipped with either the 

functional air pressure gauge or the non-functioning component that was cited. 

Everything considered, I find the failure to maintain the cited audio-visual air pressure 

indicator unit a non S&S violation of the cited safety standard. 

Citation No. 7921016 

This citation alleges an S&S violation of 30 C.F .R. § 56.14100 which provides as 

follows: 

(D) Defects on self-propelled mobile equipment affecting safety, 

which are not corrected immediately, shall be reported to and 

recorded by the mine operator. The records shall be kept at the 

mine or nearest mine office from the date the defects are recorded, 

until the defects are corrected. Such records shall be made 

available for inspection by an authorized representative of the 

Secretary. 

The citation alleges that the inspection revealed several safety defects that were not 

reported to the mine owner. It is undisputed that no defects were reported to the mine operator. 

The mine owner, Larry Stands, testified that he had only one employee that worked in the 

outdoor areas of the mine and that employee was the decedent, John Beagle. Beagle had worked 

for Mr. Stands for more than ten years. Beagle's main job was operating the 980-B loader and 

doing the maintenance work on that loader. He lubricated the loader every day, checked the oil 

and air cleaner and did other maintenance work on the loader including adjustment of the brakes. 

Part of his assigned job responsibility was to see that the loader was in good functional condition. 

One of the defects found on mechanical inspection of the front-end loader was a small leak in the 

diaphragm of the braking system. It was undisputed that leak may have first occurred the day of 

the accident. There was a replacement diaphragm in the shop and Beagle knew how to replace a 

diaphragm in the brake system. 

A couple of months before the accident the whole front end of the loader was "tom out", 

and the differential completely rebuilt along with installation of a new carrier bearing. At that 

time the brakes were adjusted and were functioning properly. After that mechanical work was 

completed, Beagle never indicated to Mr. Stands that there was any problem with the loader. It 

is undisputed that Beagle never complained or reported any defects in the braking system of the 

loader and, thus, there was no record of defects available to show the inspector. Under these 

facts I find the failure of the decedent to report the defects of the braking system to the mine 

operator constituted a non S&S violation of the cited safety standard. 

1361 
Discussion 

Significant and Substantial Violations 

A "significant and substantial" (S&S) violation is described in section 104( d)(l) of the 

Act as a violation "of such nature as could significantly and substantially contributed to the cause 

and effect of a coal or other mine safety or health hazard." 30 C.F.R. § 814(d)(l). A violation is 

properly designated as "significant and substantial" if, based on the particular facts surrounding 

that violation, there 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 explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum the 

Secretary 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. 

See also Austin Power Inc. v. Secretary, 861F.2d99, 103-04 (51

h Cir. 1988) aff'g 9 

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

The third element of the Mathies formula requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result in an event in which there is an 

injury (US. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984). The likelihood of such 

injury must be evaluated in terms of continued normal mining operations without any 

assumptions as to abatement. US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); 

See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co., 13 

FMSHRC 912, 916-17 (June 1991). 

MSHA designated all four citations issued to STS Gravel on October 11, 1996, as 

significant and substantial violations. All four citations concern the inadequacy of the brakes on 

the 980-B Caterpillar front-end loader in question. 

I agree with the inspector's findings that the violations of section (1) (service brakes) and 

section (2) (parking brakes) of 30 C.F.R. § 56.14101(a) were significant and substantial 

violations. I base my S&S findings on the testimony of Richard Laufenberg, Supervisory Mine 

Inspector in the Denver field office and Inspector Marti. I find the inadequacy of the service and 

parking brakes of the loader particularly in view of the steep grades of the roadway into the pit 

were significant and substantial violations of the cited safety standards. (Tr. 63-65 and Tr. 67-

70). 

1362 
Assessment of Civil Penalties 

In assessing a civil penalty under section 11 O(i) of the Act, the judge is required to give 

consideration to the appropriateness of the penalty to the size of the operator's business, the 

probable effect on the operator's ability to continue in business, the operator's history of 

previous violations, the operator's negligence, the gravity of the violations and the operator's 

good faith abatement. 

The size of the business was small. The operator was the working owner, Mr. Stands. It 

was essentially a two man mining operation. Other than indoor clerical help, this working 

operator had only one other employee, his friend, the decedent. The mine worked one shift a 

day. It was stipulated the mine had "3,016 tons/hours of production" in 1996 as reported in 

quarterly reports by Respondent to MSHA. Mr. Stands testified the mine had less than 10,000 

hours work. (Tr. 166). With respect to history of prior violations the parties stipulated that there 

were more than 2.1 violations per inspection over the last 24 months. All citations were abated 

in good faith and timely manner. 

In all four citations MSHA has properly alleged moderate negligence The mine 

operator, Mr. Stands, has the ultimate legal responsibility to see that the equipment and the 

required reports are in compliance with the safety regulations and standards. The operator 

cannot avoid this legal responsibility by assigning the job or the responsibility to an employee. 

Thus, the negligence of the designated employee, in this case, the decedent Mr. Beagle, in failing 

to report defects in the braking system is attributed to the operator. In my de nova review I agree 

with the inspector's evaluation of the operator's negligence in all four violations as "moderate." 

Taking into consideration all the statutory criteria set forth in section 11 O(i) of the Act I 

find the following civil penalties appropriate for the violations charged: 

CPR Section Violated 

56.14101(a)(l) 

56.14101(a)(2) 

56.14101(a)(3) 

56.14100 

ORDER 

$3,000.00 

1,300.00 

100.00 

200.00 

Accordingly, Citation Nos. 7921013 and 7921014 including the S&S findings are 

AFFIRMED AND Citations Nos. 7921015 and 7921016 are MODIFIED by deleting the S&S 

designation and as so modified are AFFIRMED. 

1363 
It is further ORDERED THAT RESPONDENT PAY civil penalties of$4,600.00 

within 40 days of the date of this decision. On receipt of payment, this case is dismissed. 

a 

~e; ... ·r4~ Administrative Law Judge 

Distribution: 

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

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

John M. Kauffman, Esq., KASTING, COMBS & KAUFFMAN, 517 S. 22nct Ave., Suite 8, 

Bozeman, MT 59718 (Certified Mail) 

/sh 

1364 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

December 9, 1998 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

On behalf of DANNY W. BROWN, 

Complainant 

v. 

CONSOLIDATION COAL COMP ANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

On behalfofDAVID R. GULLEY, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 97-88-D 

VINC CD 96-03 

RendLake 

DISCRIMINATION PROCEEDING 

Docket No. LAKE 97-99-D 

VINC CD 96-03 

RendLake 

DECISION 

Appearances: Gay F. Chase, Esq., Christine Kassak, Esq., Office of the Solicitor, U.S. 

Department of Labor, 

Before: 

Chicago, Illinois for Complainants; 

David J. Hardy, Esq., Julia K. Shreve, Esq., Jackson & Kelly, 

Charleston, West Virginia for Respondent. 

Judge Barbour 

These cases are before me upon complaints of discrimination brought by the Secretary of 

Labor ("Secretary") on behalf of Danny W. Brown and David R. Gulley under section 105( c )(2) 

of the Federal Mine Safety and Health Act of 1977 (30 U.S.C §815(c)(2)) (the "Mine Act" or 

"Act"). The complaints allege that Consolidation Coal Company ("Consol") violated section 

105(c) of the Act when it deprived Brown and Gulley of their section 103(f) (30 U.S.C. § 

813 (f)) rights to accompany a federal coal mine inspector. Consol denied the allegations, and 

the complaints were consolidated for hearing and decision. Following a trial at Mt. V emon, 

Illinois, counsels filed helpful briefs and statements of position. 

1365 
STIPULATIONS 

At the commencement of the hearing, the parties stipulated as follows: 

1. The ... Commission has jurisdiction over [the] 

proceeding. 

2 .. The Rend Lake [M]ine is a bituminous coal mine 

located in or near Sesser, Illinois. 

3. The Rend Lake [M]ine is owned and operate by 

[Consol]. 

4. [Consol] and its Rend Lake [M]ine are subject to the 

jurisdiction of the ... [Act]. 

5. [Consol's] Rend Lake facility ... is a facility that 

processes coal and which affects commerce within ... [ s ]ections 

3(b), 3(h) and 4 of the [Act]. 

6. The Rend Lake [M]ine produced in excess of three 

million tons of bituminous coal in 1966. 

7. [Consol] produced in excess often million tons of 

bituminous coal at all of its mines in 1996. 

8. At all times relevant, Joseph Wetzel was the 

superintendent of the ... mine. 

9. At all times relevant, Richard Harris was the assistant 

superintendent at the ... mine. 

10. At all times relevant, Mickey Samples was the general 

mine foreman at the ... mine. 

11. At all times relevant, Dean Parsons was the assistant 

mine foreman at the ... mine. 

12. At all times relevant, L.A. Smith was supervisor-safety 

at the ... mine. 

13. At all times relevant, Dennis Bacon was safety 

1366 
inspector at the ... mine. 

14. At all times relevant, Tim Martin was foreman at the 

... mine. 

15. At all times relevant, Terry Crisp was shift foreman, 

C-turn, at the ... mine. 

16. The miners working at the ... mine are represented by 

the United Mine Workers of America ["UMWA"]. 

17. The Nason [P]ortal of the ... mine was open[ed] on 

July 6, 1996. 

18. Danny Brown was employed by [Consol] as an 

underground mechanic assigned to the Sesser [P]ortal of the ... 

mine on July 19, 1996, and is a "miner" as defined by the Act. 

19. Brown began his employment at the ... mine on 

February 2, 1976. 

20. On July 19, 1996, Mine Safety and Health 

[Administration] ["MSHA"] Inspector James Britton presented 

himself at the Nason Portal to conduct an inspection of the 

underground mine workings. 

21. On or about July 30, 1996 ... Brown filed a timely 

complaint of discrimination with MSHA. 

22. David Gulley was employed by [Consol] as a shuttle 

car operator assigned to the Nason [P]ortal of the ... mine on July 

25, 1996, and is a miner as defined by the Act. 

23. Gulley began his employment at the ... mine on 

February 14, 1974. 

24. On July 26, 1996, [MSHA] Inspector James Britton 

presented himself at the Nason [P]ortal to make an inspection of 

the underground mine workings. 

25. On or about July 30, 1996 ... Gulley filed a timely 

complaint of discrimination with MSHA. 

1367 
26. Citation [No.] 30339498 was issued on October 1, 1996, 

for a violation of section 103(f) of the Act which occurred on 

July 25, 1996.1 

27. Citation [No.] 3039498 was not contested nor was a 

formal hearing requested and the assessed penalty was paid. 

28. Exhibit C is a certified copy of R-33-Assessed 

Violation History Report - summarized by mine for the Rend Lake 

[M]ine for the period October 1, 1994 to September 30, 1996 (Tr. 

12-15; see Joint Exh. 1). 

SUMMARY OF THE RELEVANT FACTS 

Each complaint arises out of incidents that occurred shortly after the opening of the 

Nason Portal, the second portal at the mine. Each complaint involves a situation where an 

MSHA inspector arrived at one portal and the representative of miners (the "walkaround") was at 

the other portal. As a result, the representative was required to travel from one portal to the other 

to join the inspector. 

To understand the resulting controversies, it is helpful to understand the geographic 

layout of the mine. Also, it is helpful to understand the way in which miners' representatives 

were chosen at the mine. 

The Nason Portal is located on the east side of the mine, and the Sesser Portal is located 

on the west side (Tr. 76). The surface distance between the two portals is approximately thirteen 

miles. The underground distance is approximately four and one half miles. Travel time between 

the two portals is between 20 to 25 minutes, whether travel is undertaken on the surface or 

underground (Tr. 583-584, 602, 736). 

For many years the mine had a single portal, and all miners, inspectors, and management 

1

Citation No. 3039498 states in part: 

A violation of section 103(f) occurred on July 25, 1996, when a 

representative of the miners was denied the opportunity to accompany an MSHA 

inspector during the physical inspection of the mine. During this inspection, the 

representative of the miners, who had accompanied the inspector since the start of 

the shift, was directed by mine management to return to his normal duties. The 

inspector was not accompanied by a representative of the miners ... while the 

designated miners' representative was traveling underground from the Sesser 

Portal to join the inspection party (Joint Exh. 1, Exh. A). 

1368 
personnel entered the mine at the Sesser Portal. After the Nason Portal opened, both portals were 

used to enter the mine (Tr. 46). During July 1996, there were three crews (or "turns") working in 

the mine, the A, B, and C turns. Each turn worked a shift, and the work force for each turn was 

sometimes split. Some miners were assigned to enter the mine at Sesser and some were assigned 

to enter at Nason. Although most miners worked on the side of the mine they entered, there were 

miners whose work assignments required them to travel from one side of the mine to the other 

(Tr. 46-47). 

At the mine, the miners selected union safety committeemen for each turn (Tr. 42). The 

committeemen for A, B, and C turns were respectively Melvin Filkins, Tommie Sweeten, and 

Danny Brown (Tr. 285; Gov. Exh. 5). In most instances it was the committeemen who acted as 

the walkarounds and accompanied the inspectors. However, there also were alternate 

representatives of miners (Tr. 284). The alternates usually were selected by the committeemen 

(Tr. 282, 373, 560-561). The alternates served as the walkarounds ifthe safety committeemen 

were not available to accompany the inspectors (Tr. 281-282). The alternates were named on a 

list that was posted at the mine. Mine management was aware of the list (Gov. Exh. 5; Tr. 284-

285). There were eight or nine alternates for each turn (Tr. 373). The alternates were selected 

the same way before and after the Nason Portal opened (Tr. 374). There were times when the 

alternates could not accompany the inspectors, and at those times the committeemen might ask 

an unlisted miner to act as the walkaround. 

INCIDENTS RELATED TO BROWN 

Danny Brown, an underground miner and union member, worked as a mechanic at Sesser 

Portal (Tr. 39-40). Brown was appointed the safety committeeman for the C turn in 1995 (Tr. 

42). As the safety committeeman for C turn, his duties included representing C turn miners on 

safety issues and accompanying inspectors during their inspections of the mine (Tr. 43). Shortly 

after his appointment, Brown was introduced as the C turn safety committeeman to the mine's 

then safety director and to several other management representatives, including Wetzel, the 

superintendent. (Tr. 42-43). 

As the opening of the Nason Portal approached, the miners discussed what to do with 

regard to the walkarounds if the inspector came to a portal other than the one where the 

walkaround was working. Brown described how the miners decided to handle the problem: 

[W]e ... approached management before the opening of 

the portal. These were informal meetings between myself, Dennis 

Bacon [the company safety inspector], [and] L.A. Smith 

[management's safety supervisor] .... [There were] [s]everal 

meetings [and] we explained to ... them ... [i]f there w[ ere] two 

inspectors, wherever the safety committeeman was assigned, he 

would stay at that portal. If there was only one inspector, no 

matter where he was at ... the safety representative would 

1369 
accompany the inspector. We would travel from one portal to the 

other if there was only one inspector present (Tr~ 50-51). 

Brown maintained that the miners "did not want to create a problem for the company[,]" 

that the miners' representatives were "not going to pick and choose where we want[ed] to go[,]" 

but that the miners sought to make clear to the company that when there was one inspector at the 

mine, it was the safety committeeman who was the miners first choice to accompany the 

inspector (Tr. 51). 

Melvin Filkins, who had been a union safety committeeman at the mine for fourteen or 

fifteen years, agreed that the "primary walkaround representative for the miners" was the safety 

committeeman, and that this was true both before and after the Nason Portal opened (Tr. 373-

374). Filkins concurred with Brown that the miners discussed with management, including 

Smith, what would be done after the Nason Portal opened. He claimed that Smith was told if the 

inspector came to one portal and the walkaround was working at the other portal, the miners' 

representative would travel to join the inspector (Tr. 375-376, 379-380). 

During the day shift of July 18, 1996, Brown was working at Sesser when he was advised 

an MSHA inspector was at Nason and was preparing to conduct an inspection. Brown asked 

Smith ifhe could use Smith's scooter to travel to Nason. According to Brown, Smith had "no 

problem," but Smith advised Brown that before he left he had better check with another 

management person (Tr. 55). 

Therefore, Brown went to the assistant mine superintendent, Rick Harris, and told him 

there was a federal inspector at the Nason Portal, and that he needed to travel to that portal. 

Harris asked Brown if someone else could take care of the situation. Brown stated that he, 

Brown, was the representative of miners, that this kind of a situation had been discussed 

previously with mine management, and that he should be the one to travel with the inspector. 

Brown claimed that Harris told him to go underground and find a ride (Tr. 55). 

Brown went back to Smith and told Smith about the conversation with Harris. Brown 

also asked Smith to call Dennis Bacon, the company safety escort at Nason, and tell Bacon that 

he, Brown, was on his way to the portal. Smith gave Brown the keys to the scooter, and Brown 

drove to Nason (Tr. 56). 

Once there, he went to the portal office where he met Bacon and Jane Hamby, a C turn 

miner who sometimes acted as an alternate walkaround if the primary representative could not go 

with the inspector (Tr. 56, 59). Brown felt Bacon was surprised to see him. 2 Brown felt Bacon 

was upset because he was there. Brown testified that several times Bacon said, "This is not right. 

This is not right. You should not be here"(Tr. 57). Brown replied, "[W]e've talked about this in 

2

Later, Brown asked Bacon if Smith had called, and Bacon stated he had not (Tr. 56-57). 

1370 
the past. We told you how we were going to handle it. Why are you so upset?" (Id.). Brown 

testified that Bacon said to him "I just want you to know for every action there is a reaction" 

(Id.). After this discussion Hamby went underground to her regular job, and the inspector and 

Brown began the inspection (Tr. 60). 

The following day, Brown again was working at Sesser when an inspector arrived at 

Nason. Brown asked Smith ifhe could use Smith's scooter to go to Nason. According to 

Brown, Smith replied he did not care but that Brown should talk to Wetzel, the mine 

superintendent, or to the assistant mine foreman, Dean Parsons, because there was "some sort of 

a problem" (Tr. 60). Parsons appeared and Brown asked him whether in fact there was a 

problem. Parsons responded he was not sure, but that he would ask Wetzel (Tr. 61). 

Parsons left and spoke with Wetzel, who told him to tell Brown to go to his regular job 

assignment, because there was already a walkaround at Nason (Tr. 725-726, 729). When 

Parsons returned, he told Brown he could not go to Nason. Brown asked if Parsons was denying 

him the right to accompany an inspector, and Parsons replied "Somebody else will have to handle 

it" (Id.). (According to Scott Stella, an alternate walkaround, who was with Brown when Brown 

spoke with Parsons, Parsons also told Brown "You can't go" (Tr. 252).) Brown then went 

underground to work at his assigned job, a job that incidentally required him to travel to Nason 

(Tr. 62, 252). 

Wetzel agreed that on July 19, Brown asked for transportation and permission to travel to 

Nason to accompany the inspector. However, as Wetzel recalled, he learned about Brown's 

request when Rick Harris telephoned him, and asked whether Brown was allowed to go. Harris 

told him that Jane Hamby, an alternate walkaround representative, was at Nason. According to 

Wetzel, he denied the request "Because there was already a designated walkaround at the Nason 

[P]ortal" and he "thought that the request was unreasonable" (Tr. 562). Wetzel stated he did not 

want "to do all the switching around [of personnel]" that would be necessary to accommodate 

Brown's request (Id.). Wetzel maintained that Hamby already had advised management that she 

was going to travel with the inspector (Tr. 563-564). Wetzel told Parsons to tell Brown to go to 

work (Tr. 563). Therefore, Hamby, not Brown, accompanied the inspector on July 19 (Tr. 564). 

After telling Parsons to deny Brown's request, Wetzel spoke with Gerald Kowzan, 

Consol's supervisor for human resources. Wetzel asked Kowzan if his decision to deny Brown 

permission to travel to Nason was correct. Kowzan advised Wetzel to let Brown travel to Nason 

"[b]ecause Brown was a safety committeeman" (Tr. 572). Kowzan's advice was based on a 

conversation he had with Elizabeth Chamberlin, a Consol attorney. Wetzel and Kowzan had 

telephoned Ms. Chamberlin to discuss the situation (Tr. 572). According to Kowzan, 

Chamberlin said there could not be two walkarounds, that management should find out "who is 

actually declaring themselves [sic] to be the designated walk-around ... and if one person steps 

forward and says ... 'I am that person,' then ... to look into ... is it reasonable for that person 

to travel" (Tr. 807). 

1371 
Shortly thereafter, Wetzel orally instructed management personnel that in the future 

Brown should be given transportation to go to the Nason to accompany the inspector (Tr. 573-

575). However, Wetzel maintained that allowing Brown to travel to Nason contrasted with the 

practice at other two-portal mines operated by Consol. At those mines the walkaround "came 

from the portal [where] the inspector showed up" (Tr. 552).3 

INCIDENTS RELATED TO GULLY 

David Gulley is a shuttle car operator at the Rend Lake Mine. In July 1996, Gulley was 

assigned to the Nason Portal (Tr. 209-210). Gulley was not a union officer or a union committee 

member (Tr. 210). However, on several occasions prior to July 1996, he acted as an alternate 

representative of miners (Tr. 214). 

On July 24, 1996, Brown was notified by Gulley that Hamby would not be at the mine 

the next day. Gulley asked Brown who would accompany the inspector if one came to the Nason 

Portal on July 25. Brown responded ifthere was only one inspector, he, Brown, would be the 

walkaround. He would come to Nason and join the inspector as soon as he could, but Gulley 

should start out with the inspector. Gulley could return to his job after Brown arrived (Tr. 69). 

Brown instructed Gulley to ask management if it was all right for Gully to go "on union 

business" until Brown arrived (Id.).4 When a miner was on "union business" he or she was paid 

by the union, not by the company (Tr. 82-84). Therefore, the union would pay Gulley for his 

time and the company "would not be out any money" (Tr. 70). Brown testified he telephoned 

Otis Callis, a mine examiner and treasurer of the union local, and asked Callis to go with Gulley 

when Gulley talked to mine management (Tr. 69-70). 

On the morning of July 25, Gulley reported for work at the Nason Portal (Tr. 211). 

Around 7:30 a.m., MSHA Inspector Britton arrived at the portal (Tr. 216). State mine inspector 

Willard Dane also arrived around the same time. After finding Britton was there, Gulley went to 

meet with Bacon. Gulley told Bacon that he, Gulley, would travel with Britton and that another 

miner, James Key, would accompany the state inspector. (Tr. 218). Britton also spoke with 

Bacon. He told Bacon that he was at the mine to conduct an inspection (Tr. 476). Britton asked 

who would be the representative of miners, and Bacon told him it would be Gulley (Id.). 

3

The practice was confirmed by MSHA Inspector Britton (Tr. 49, 500). 

4

Kenneth Dawes, the president of the union local, explained there was no "set procedure" 

for requesting permission to go on union business. At times, when there was "ample time" the 

request was made in writing. At other times, the request was made orally (Tr. 296, see also Tr. 

298). Brown added there also were times when a union member simply told management what 

he or she is going to do and stated to that he or she would be on union business (Tr. 83). 

1372 
While this was going on, Dane went to the safety department office. At the office, 

Samples, the mine foreman, said he would accompany Dane (Tr. 613). Samples testified he went 

back to his office where he received a telephone call from assistant superintendent Rick Harris. 

Harris told him that Brown was coming to Nason from Sesser and that Gulley needed "to go 

below and go to work" (Tr. 614). There would not be two walkarounds for Britton. 

Meanwhile, Gulley and Key met Filkins and Callis. They went to Samples's office 

(Tr. 443). Someone (Gulley could not recall who) asked Samples if it would be alright if Gulley 

went on union business to accompany Britton until Brown arrived from Sesser (Tr. 221 ). Gulley 

maintained Samples told him he could go. Gulley stated, "There is no doubt in my mind that I 

had permission to go" (Tr. 222). Gulley maintained he would not have gone without permission 

because had he done so he might have been fired (Id.). 

As Filkins remember the visit with Samples, Filkins asked Samples if there was a 

problem with letting Gulley accompany the inspector. Filkins maintained Samples replied that 

Brown was on his way and the company was "not going to pay for two people for the same 

inspector" (Tr. 390-391, 394). Filkins testified he told Samples the union would pay for Gulley 

until Brown arrived and that Samples indicated this would be acceptable, just so the company did 

not have to pay two walkarounds (Id.). 

Callis also testified the group assured Samples that the union would pay Gulley (Tr. 444). 

Callis stated Filkins asked Samples if Gulley could return to his job as a shuttle car operator once 

Brown arrived, and Samples stated he could (Tr. 443-444). Callis believed that everything had 

been resolved, that Gulley would be able to act as the walkaround until Brown reached the 

inspector, and that Gulley then would resume his normal duties (Tr. 444). Key also believed any 

disagreement had been resolved during the discussion and that Samples said it was "Okay" for 

Gulley to accompany the inspector (Tr. 846). Britton too understood that Gulley would be with 

him until Brown arrived (Tr. 481). 

However, Samples testified he told Gulley and Key that one of them had to go to his 

regular work assignment because Brown was on the way. Although he stated, "Okay" when he 

was told Gulley was going on union business, "Okay" did not mean that Gulley was free to go 

with Britton (Tr. 615). Rather, he used the word simply to acknowledge he heard what was said. 

He had no authority to approve Gulley going on union business (Tr. 616-617). 

Samples called Harris to tell him Gulley wanted to go on union business (Tr. 616). 

Harris called Wetzel, who called Kowzan (Tr. 743, 810). According to Kowzan, he and Wetzel 

discussed Gulley's request, and Wetzel stated he thought it should not be granted. Kowzan 

agreed (Tr. 810). Wetzel did not believe it was a valid request because Brown had "presented 

himself to go with ... Britton ... and [Brown] was on his way" (Tr. 596). Moreover, the 

request to go on union business was not in writing, and it was unreasonable because "it tied up 

two people, where one person would have suffice[d]" (Tr. 579, 595-596). Wetzel believed 

management of the mine would be chaotic if miners could declare themselves to be on union 

1373 
business with no approval from the company (Tr. 598). Kowzan added it could have cost the 

company at least two hours or more of productivity to let Gulley go because there was no one to 

fill Gulley's position (Tr. 811-812). Subsequently, Kowzan and Wetzel called Harris and told 

him Gulley's union business was not approved and that Gulley should go to work (Tr. 743-744, 

811, 813). 

Samples went to the safety office to advise Gulley he had to go to work, but Gulley 

already had gone underground with Britton and Bacon (Tr. 617). Samples summoned Filkins 

and Callis to his office and told them Gulley's union business request was not approved (Tr. 617-

618). After they left, Samples called Kowzan and advised him Gulley was underground. 

Kowzan said Samples should send someone to find Gulley and send Gulley to work. Around 

8:30 a.m., Samples asked Terry Crisp, the C tum shift foreman, to locate Gulley, and Crisp went 

underground (Tr. 138, 234, 618). 

Meanwhile, Gulley, Bacon, and Britton were proceeding with the inspection. As they 

approached the mouth of the 7E working section, Terry Crisp reached them. Crisp told Gulley 

he had to go to his assigned job. Gully replied, "I'm on union business ... I'm supposed to stay 

with this federal inspector until ... Brown arrives from the other side" (Tr. 225). When Crisp 

insisted Gulley go to his job, Gulley asked Crisp ifhe was ordering him to leave the inspector. 

Crisp stated he was, and Gulley went to his job (Tr. 136, 225-226). Gulley testified he left 

because he feared if he did not, he would be fired (Tr. 226). 

Crisp drove Gulley to work (Tr. 138, 484-485). The union paid Gulley for the time he 

spent with the inspector. The decision to pay Gulley was in accordance with the union's 

understanding that if two persons were needed for walkaround purposes at the same time, the 

company only was required to pay one and that the union would "pick up the time" for the other 

(See Tr. 172). The company paid Gulley for the time from when he left the inspector to the end 

of the shift (Tr. 228). 

When Brown arrived for work at Sesser he learned that Britton was at Nason (Tr. 79). 

Brown went underground around 8:00 a.m. (Id.). Because there was no inspector at Sesser and 

Britton was at Nason, Brown wanted a ride to Nason. The company did not provide him with 

transportation, so he rode with another miner who was going to work at Nason (Tr. 81).5 When 

he reached Nason he went to the surface where he was met by two union members. They told 

Brown that Gulley had gone underground with the inspector and that management was going to 

remove Gulley from the inspection (Tr. 70-71). According to Brown, Samples, the general mine 

foreman, came out his office and Brown asked Samples about the situation. Samples replied "I 

had Terry Crisp remove ... Gulley from the inspector" (Tr. 71). 

5

The Secretary did not maintain the failure to provide Brown with transportation was a 

violation of the Act (Tr. 81-82). 

1374 
Brown then went underground with Samples and others and when the elevator reached 

the bottom, he asked Samples where the inspector was. Samples replied "I don't know" (Tr. 72). 

A foreman offered Brown a ride, and Brown and the foreman want to find Britton (Tr. 75). 

After Gulley left him, Britton, accompanied only by Bacon, continued toward the 7E 

section (Tr. 485-486). As he traveled, Britton "inspected the roof ... the travel roads ... the 

cross-cuts, [and the] roof conditions" (Tr. 485). Once in the section he traveled to the faces to 

check for methane and to observe the section's roof. He also checked to make sure that company 

mine examiners visited the areas. Finally, he took an air reading and began to inspect a 

continuous mining machine (Tr. 486). Brown reached Britton between 9:45 a.m. and 10:00 a.m. 

and remained with him for the rest of the inspection (Tr. 79, 486-488). 

THE LAW 

A miner seeking to establish a prima facie case of discrimination under section 105( c) of 

the Act bears the burden of proof that he or she engaged in protected activity and that the adverse 

action complained of was motivated in any part by that activity (Secretary on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980) rev'd on other grounds. 

sub nom. Consolidation Coal Co. v. Marshall, 663 Fed 1211 (3rd Cir. 1981); Secretary on behalf 

of Robinette v. United Coal Co., 3 FMSHRC 803, 817-818 (April 1981)). The operator may 

rebut the prima facie case by showing either that no protected activity occurred or that the 

adverse action was in no part motivated by protected activity. If the 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 

(Pasula, supra; Robinette, supra; See also Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 

639, 642 (4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 958-959 (D.C. Cir. 

1984); Boich v. FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 19830 (specifically approving the 

Commission's Pasula-Robinette test)). 

RIGHTS. RESPONSIBILITIES. AND PRIORITIES UNDER 

SECTION 103(0 

An understanding of the rights, responsibilities, and priorities inherent in section 103(f) is 

key to resolving the issues of whether the company deprived Brown and Gulley of their 

statutorily protected walkaround rights. The rights and responsibilities are of fundamental 

importance in meeting the objectives of the Act. The legislative history makes clear Congress 

viewed the participation of the representative of miners as necessary to effectuate fully the 

inspection process. As the Senate Committee that drafted the Act stated, the representative who 

accompanies the inspector "assist[s] in conducting a full inspection" (S. Rep. No. 181, 95th 

Cong., 1st Sess. 50 (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 616 (1978), (Legis. Hist.)). The overall goal of the walkaround right is to help miners 

"understand the safety and health requirements of the Act and ... enhance miner safety and 

1375 
health awareness" (Id.). Exercise of the right is protected, and any attempt by an operator to 

restrict the right may run afoul of section 105( c) of the Act. 

When, the right was enacted Congress fully realized the right's exercise could cost the 

operator in production and in wages paid for time not worked ("To encourage ... miner 

participation it is ... [Congress's] intention that the miner who participates in such inspection 

... be fully compensated by the operator for time thus spent" (Legist. Hist. at 616). 

Additionally, in granting the right Congress necessarily limited an operator's freedom to direct 

its work force in that a miner who is accompanying an inspector is not performing duties to 

which he or she otherwise would be assigned. 

Finally, the question of who will accompany an inspector is for the miners to resolve. 

The Commission has stated that section 103(f) "unambiguously provides that miners possess the 

right to choose their representatives for section 103(f) inspections" (Secretary on behalf of Truex 

v. Consolidation Coal Co., 8 FMSHRC 1293, 1298 (September 1986)), and although the 

operator is not required to go through scheduling contortions to accommodate unreasonable 

assertions of the right, the miner's choice otherwise has priority. 

DANNY BROWN AND THE INCIDENT OF JULY 19 

I find the testimony established that before the Nason Portal opened it was the practice at 

the mine to proceed as follows with regard to the walkaround right: (1) to have the designated 

UMW A safety committeeman for each turn accompany the MSHA inspector; (2) to have an 

alternate UMW A safety committeeman for each tum accompany the inspector if the designated 

committeeman could not go; (3) to have the safety committeeman delegate someone else to go 

with the inspector, ifthe committeeman or an alternate could not go (Tr. 42, 282, 560-561). I 

conclude because Brown was the designated safety committeeman for the C tum, he was the 

miners' first choice as their walkaround representative. Further, I find mine management knew 

he was the first ch()ice and therefore the primary walkaround (Tr. 42-43). 

I also find that prior to the opening of the Nason Portal, the miners discussed with 

management the issue of who would represent the miners when an inspector was at one portal 

and the safety committeeman was at another (Tr. 50-51, 375-376, 379-380). I credit Brown's 

and Finkin's testimony about the informal talks between the union and management. Everyone 

knew the portal was going to open, and it is logical that the problem, which was foreseeable, 

would have been anticipated. The solution - that the designated safety committeeman would 

travel to the inspector - was consistent with past practice at the mine in that the designated 

safety committeeman remained the first choice of the miners as their representative. Equally, it 

was not facially unreasonable, and it therefore was one the miners were entitled to make 

1376 
(Truex, 8 FMSHRC at 1827; (Tr. 50-51)) .

6 

I further find that any doubt in management's mind about who would be the primary 

representative when an inspector arrived at the Nason Portal, should have been clarified by the 

events of July 18, when Brown traveled from Sesser to Nason to accompany the inspector. 

Smith knew why Brown went to Nason, and management knew that in similar circumstances he 

would want to do so again. Hence, Wetzel's and Kowzan's conversation with Chamberlin. 

On July 19, when the inspector again arrived at Nason, Wetzel denied Brown permission 

to travel to accompany the inspector. Wetzel justified his refusal by stating he believed Hamby, 

who was at Sesser, had declared herself to be the walkaround and that it was unreasonable to "do 

all the switching around" necessary to accommodate Brown's request (Tr. 562, 563). The 

reasons do not support denying Brown permission to join the inspector. 

As I have found, it was or should have been clear to the company that Brown was the 

miners' first choice. As the designated safety committeeman, Brown's request had priority. If 

there was confusion over who was to act as the walkaround representative, the responsibility for 

clarifying the situation rested initially with the company, which totally controlled the 

communication and transportation systems at the mine. Wetzel, or another management 

representative, could have called Nason and had Brown speak with Hamby or with others to 

dispel any misunderstanding as to who was to be the walkaround. Initiation of the call would 

have been consistent with Chamberlin's advice that management should find out "who is actually 

declaring themselves [sic] to be the designated walkaround" (Tr. 807). 

The "switching around" to which Wetzel objected might have been inconvenient for the 

operator, but it would have been an inconvenience the Act anticipates as sometimes necessary for 

full effectuation of the walkaround right. As I have noted, section 103(f) contemplates a 

diminution of the operator's right to direct its workforce and gives priority to the miner's choice. 

Here, that choice was Brown. 

Therefore, I conclude the Secretary established a prima facie case of discrimination by 

proving that Brown engaged in protected activity on July 19 when he advised Consol 

management personnel he wanted to travel to Sesser to join the inspector. I also conclude that 

Wetzel's (and though him, Consol's) denial of permission was an adverse action that effectively 

blocked the exercise of Brown's section 103(f) right. 

I reject Consol's argument that the Secretary failed to prove it was illegally motivated in 

denying Brown permission to travel to Sesser. I believe the company either understood or 

should have understood that Brown was the primary choice of the miners to act as the 

6

In finding the solution was not facially unreasonable I note there were occasions when 

miners traveled from one portal to another for work purposes (Tr. 46-47, 81). 

1377 
walkaround, and even ifthere was confusion regarding who was designated, the company's 

control of the means of communication and transportation placed the responsibility on the 

company to make initial efforts to dispel the confusion, efforts it did not undertake. 

Finally, to the extent Consol is arguing that letting Brown join Britton unreasonably 

dislocated its work priorities, I conclude Consol did not prove the assertion. As a general rule it 

was not unreasonable for the miners' representative to travel from one portal to another. 

Although in specific instances such travel might have been an unwarranted burden, it was 

incumbent upon Consol to prove it. At the very least, the company should have established the 

critical nature of the walkaround's duties and the lack of any other personnel to fulfill those 

duties. Ordinary inconvenience is not enough. Here, Consol did not establish that Brown's 

normally assigned duties on July 19 were critical to the functioning of the C turn and that others 

were not available to fill in for Brown. 

DAVID GULLEY AND THE INCIDENT OF JULY 25 

I have found that it was a practice at the mine for a committeeman to delegate his or her 

walkaround responsibilities to an alternate or to another miner if the committeeman or alternate 

could not accompany the inspector. I also have found the company fully understood this was the 

practice. It is clear from the testimony that Brown was aware Hamby (the usual alternate) would 

not be at the Nason Portal on July 25, and that Brown asked Gulley to act as the walkaround 

either for the entire inspection or until he, Brown, arrived (Tr. 69, 213, 218). In addition, it is 

clear Brown instructed Gulley to tell management that Gulley would be on union business until 

Brown arrived so the company would not have to pay two walkaround representatives for one 

inspection (Tr. 69-70). Additionally, it is certain that Gully told management's safety escort, 

Dennis Bacon, that he, Gulley, would be the walkaround with Britton (476, 676). 

I recognize there is a dispute about whether or not Samples was told that Gulley was 

going on union business in order to accompany Britton. Gulley maintained he, and others, met 

with Samples and that Samples understood Gulley would be accompanying the inspector while 

on union business (Tr. 221-222). Samples maintained he was only told that Gulley was going on 

union business, that Gulley did not state he was accompanying Britton. Thus, when Samples 

responded "Okay," he was acknowledging he heard the statement that Gulley was going on union 

business. He was not authorizing Gulley to go with Britton or to be away from his job and be 

paid by the union. (Tr. 615-616). 

It is difficult for me to believe that Bacon, the company representative, understood Gulley 

was going to act as the walkaround and that Samples did not. Moreover, given the context of 

Gulley/Filkins/Calis conversation with Samples, I find that Samples used the word "Okay" as it 

is used normally - that is, as a term of approval or authorization. It is highly unlikely Samples 

would have approved something without knowing its purpose. I infer from all of this that 

Samples gave Gulley permission to go underground and that Samples fully understood that 

Gulley was going to accompany Britton and would be paid by the union while doing so (Tr. 480-

1378 
481). 

When he allowed Gulley to go with Britton, Samples knew Brown was on his way (Tr. 

614). Consol's miners had a right to have someone accompany the inspector from the moment 

the inspection began. "Accompany" is defined as "To go with or attend as an associate or 

companion" (Webster's Third New International Dictionary (1986) at 12). Brown had not 

reached Nason when Britton was ready to leave. Britton was not required to wait for him. 

Gulley, as the designated walkaround, had a right "to go with" Britton until Brown arrived. It 

follows that Gulley was exercising his section 103(f) right when he went underground with 

Britton. Section 103(f) was not satisfied when Brown left Nason to join Britton. The 

walkaround must accompany the inspector, not be on the way to do so. 

Therefore, I conclude that Gulley was engaging in protected activity when the inspection 

was interrupted and Crisp ordered Gulley to go to work (Tr. 136-138, 225, 618). Although 

Britton continued the inspection after Gulley left, he did so for approximately an hour without 

the aid of a miners' representative (Tr. 484-488). 

By ordering Gulley to leave Inspector Britton before Brown arrived, Consol unlawfully 

discriminated against Gulley. Wetzel objected to having "two people [tied up]," that is to having 

one employee traveling to join an inspector while another employee was "filling in," but as I have 

stated, section 103(f) impinges upon an operator's authority to direct its work force, and the right 

to accompany prevails when it is not unreasonably exercised. Given the configuration of the 

mine, the fact that Brown was the miners primary choice, and the fact that Britton was not 

required to wait for Brown, I conclude it was reasonable to have Gulley exercise the right until 

Brown reached Britton, and I reject Consol's argument to the contrary (Consol Br. 8). Gulley 

was the representative of miners until Brown got there. Either Gulley went with Britton or there 

would have been no walkaround with the inspector. The miners' right to be represented trumped 

any employee dislocation and loss of production that might have resulted. 7 While Kowzan 

testified Gulley's absence from work could have cost the company two hours or more of 

productivity (Tr. 811-812), this was not an unreasonable price to pay given the priority of the 

miner's choice. 

7

I also reject Consol's argument that "[a]ny 'right' of the union to require that only certain 

of the designated walkarounds act in a given situation is contractual in nature and beyond the 

jurisdiction of the ... Commission and ... [the] judge" (Consol Br. 7). The argument is contrary 

to a fundamental precept of section 103(f), that miners are entitled to select whomever they wish 

as their representative (Truex, 8 FMSHRC at 1298), subject to certain qualifications set forth by 

the Secretary and which are not applicable here (Emery Mining Corp., 10 FMSHRC 276, 280 

(March 1988); Secretary on behalf of Wayne v. Consolidation Coal Co., 11 FMSHRC 483, 487 

(April 1989). To hold otherwise would be to place potential restrictions on the miners' freedom 

of choice. 

1379 
REMEDIES 

The Secretary requests I find Consol's actions "to have a chilling effect on the miners' 

exercise of their statutorily protected rights" and that I order Consol "to post ... a notice stating it 

recognizes the right of its miners of file complaints of discrimination and to not interfere in any 

manner with such rights" (Sec. Br. 52). Although I share the Secretary's concern that Consol's 

actions may make miners reluctant to serve as walkarounds in the future, I decline to order 

Consol to post the notice requested by the Secretary.8 I am not convinced posting an open-ended 

statement that recognizes existing rights and requirements serves much of a purpose. I believe 

the Act itself provides a better remedy in that under section 109 (30 U.S.C.§ 819) Consol may be 

required to post this decision on the mine bulletin board where it will be a specific and public 

reminder of the company's duties under section 103(f) and of the statutory protections the Act 

affords miners who exercise their rights under these particular circumstances. In addition, I am 

persuaded the civil penalties assessed below will serve as an incentive to Consol for future 

compliance. 

CIVIL PENALTIES 

In assessing civil penalties for the two violations of section 105( c ), section 11 O(i) of the 

Act (30 U.S.C. §820(i)) requires consideration of the following six criteria: 

PREVIOUS VIOLATIONS 

The Secretary asserts, and the company does not dispute, that during the relevant time 

period prior to the violations, 1,126 violations were cited at the mine, including 15 violations of 

section 105(c) (Sec. Br. 49; Joint Exh. 1 (Exh. C)). This is a large history of previous violations. 

As the stipulations make clear, the mine is large in size and Consol is a large operator 

(Joint Exh. 1, Stips. 6 & 7). 

NEGLIGENCE 

The company was negligent in discriminating against Brown. The company knew or 

should have known Brown was the first choice of the miners, and if there was confusion in 

management's mind as to who was to travel with the inspector, it was the company's 

8

I note Gulley's credible testimony that he felt he was "having to put [his] job on the line 

to accompany a federal inspector"and that he has refused to act as a walkaround since the July 25 

incident (Tr. 230). 

1380 
responsibility under the circumstances of this case to initiate action to resolve the question. The 

company, not the miners, controlled the means of communication and transportation. In denying 

Brown the right to travel with the inspector, the company failed to exhibit the care required of it. 

The same is true of the Company's treatment of Gulley. Samples knew Gulley was going 

to act as the walkaround until Brown arrived. He knew Brown was on the way. He either knew 

or should have known that in accompanying the inspector, Gulley was exercising a protected 

right, since Brown, the. miners first choice, was not yet there. By having Gulley removed from 

the inspection party before Brown arrived, Samples and through Samples mine management, 

failed to exhibit the care require of it. 

I also find, however, that the company's negligence was mitigated by the fact these two 

incidents involving section 103(f) rights were among the first to confront the company following 

the opening to the Nason Portal. That the company was uncertain of its responsibilities under the 

new configuration existing at the mine, is shown by Wetzel's and Kowzan's conversation with 

Chamberlin (Tr. 572, 807). It may be that the company was mislead by the manner in which 

walkarounds were designated at its other two-portal mines (Tr. 49, 500), but whatever the cause, 

I conclude the company's responses were more misguided than purposeful. 

ABILITY TO CONTINUE IN BUSINESS 

No evidence was offered by Consol that the size of any penalties assessed will affect 

adversely its ability to continue in business, and I conclude that they will not. 

GRAVITY 

Both violations were serious. I have noted the fundamental importance of section 103(f) 

in meeting the objectives of the Act. Denying Brown and Gulley their rights interferes with the 

inspection process, a process that is key to enforcement of the Act. 

GOOD FAITH ABATEMENT 

The Secretary does not contend otherwise, and I find that Consol exhibited good faith in 

abating the violations. 

The Secretary proposes a civil penalty of $5,000 for each violation of Section 105( c ). 

After considering all of the criteria and given the mitigated negligence of the company, I 

conclude penalties of half that amount are appropriate. 

1381 
ORDER 

In view of the foregoing, it is ORDERED that: 

I. Consol post a copy of this decision on the mine bulletin board or other location readily 

available or accessible to miners and that the decision remain posted for thirty days or until it 

becomes final. 

2. Consol pay the Secretary's Mine Safety and Health Administration a civil penalty of 

$2,500 for each violation of section 105(c) of the Act ($5,000 in total), and payment be made 

within thirty days of the· date of this decision. 

Distribution: 

J)W'/'tt' .&,,,z~~IL- David Barbour 

Administrative Law Judge 

Christine M. Kassak, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South 

Dearborn Street, gth Floor, Chicago, IL 60604 (Certified Mail) 

David J. Hardy, Esq, Julia K. Shreve, Esq., Maris E. McCambley, Esq., Jackson & Kelly, P. 0. 

Box 553, Charleston, WV 25322-0533 (Certified Mail) 

\nt 

1382 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

JOHN D. LEHOUX, 

Complainant 

v. 

PLOURDE SAND & GRAVEL, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 0 1998. 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. YORK 98-36-DM 

NEMD98-03 

Mine ID No. 27-00094 

Plourde Sand & Gravel 

Appearances: Susanna G. Robinson, Esq., Douglas, Robinson, Leonard & Garvey, P.C. 

Concord, New Hampshire for Complainant; 

Frank P. Spinella, Jr., Esq., Hall, Morse, Anderson, Miller, & Spinella, P.C. 

Concord, New Hampshire for Respondent. 

Before: Judge Bulluck 

This discrimination proceeding is before me on a Complaint of Discrimination brought 

by John D. Lehoux against Plourde Sand and Gravel ("Plourde"), under Section 105(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c). The complaint alleges unlawful 

discharge in retaliation for safety complaints raised with the Secretary's Mine Safety and Health 

Administration ("MSHA") during a fatality investigation. 

John Lehoux filed his discrimination complaint with MSHA pursuant to Section 

105( c )(2) on February 6, 1998 (Ex. C-5). 1 On April 28, 1998, MSHA notified Lehoux that, 

based on its investigation of the allegations, it had concluded that a violation of Section 105(c) 

had not occurred. Lehoux, through counsel, instituted this proceeding before the Commission 

on May 18, 1998, under Section 105(c)(3), 30 U.S.C. §815(c)(3).2 

1

Section 105(c)(2) provides, in pertinent part, that "Any miner ... who believes that he has 

been discharged, interfered with, or otherwise discriminated against by any person in violation of 

this subsection may, within 60 days after such violation occurs, file a complaint with the 

Secretary alleging such discrimination." 

2

Section 105( c )(3) provides, in pertinent part, that "If the Secretary, upon investigation, 

determines that the provisions of this subsection have not been violated, the complainant shall 

have the right, within 30 days of notice of the Secretary's determination, to file an action in his 

own behalf before the Commission .... " 

1383 
A hearing was held in Concord, New Hampshire. The parties presented testimony and 

documentary evidence, and filed post-hearing briefs. For the reasons set forth below, I conclude 

that while Lehoux engaged in protected activity, he was not discharged by Plourde for engaging 

in that, or any other, protected activity. 

I. Stipulations 

The parties stipulated to the following facts: 

1. Lehoux was hired by Plourde on November 11, 1996, and fired by Plourde on 

December 12, 1997. 

2. Lehoux was initially hired as a salesman, but served as plant superintendent and safety 

officer for Plourde from March to December 1997. 

3. Brent Blackey died in a fatal accident at Plourde's Hooksett plant on December 3, 

1997. 

4. After the accident, Lehoux was interviewed by MSHA investigators. 

II. Factual Background 

Plourde is owned and operated by the Plourde brothers; Oscar is the president of the 

company and Lawrence is the vice-president and treasurer (Tr. 19, 164; Vol. II: 50). Lawrence 

Plourde had functioned as manager of the Hooksett plant for approximately 30 years, until 

Lehoux became the first "outsider" plant superintendent (Tr. 187; Vol. II: 51). 

Lehoux applied for a position in aggregate sales with Plourde, was interviewed, and was 

hired as a salesman to replace Tom Woodley on November 11, 1996 (Ex. C-1; Tr. 14). Richard 

Weed, financial consultant to the Plourdes, assisted them in hiring Lehoux (Tr. 308-12). Lehoux 

also functioned as the company's safety coordinator during part of his tenure (Tr. 21). 

Dissatisfied with employment elsewhere, Tom Woodley sought reinstatement and was rehired as 

Plourde's salesman in March 1997, at which time Lehoux vacated that position and accepted 

reassignment to the position of plant superintendent (Tr. 12, 21, 166, 312-14). 

As superintendent of the Hooksett plant, Lehoux supervised and worked alongside Larry 

Champhene, Brent Blackey and Kenny Publicover, who was terminated during Lehoux's tenure 

(Tr. 42, 277-79). Oscar Plourde was Lehoux's supervisor (Tr. 31). At some point in the Fall of 

1997, Oscar Plourde, dissatisfied with Lehoux'sjob performance, requested that Tom Woodley 

discretely "put the word out" in the industry that the Plourdes were looking for a replacement for 

Lehoux (Tr. 316; Vol. II: 12-13). As a result of those efforts, Don Davis was referred to Tom 

Woodley, was interviewed by Woodley and the Plourdes, and within two weeks of his 

application for the plant superintendent position, was offered the job in early to mid November 

1384 
1997 (Tr. 198-200, 317-18; Vol. II: 14-16). Don Davis' report-to-duty date at Plourde was 

delayed a week or so, in order for him to complete a project for his current employer before his 

departure; Davis reported to duty at Plourde on December 8, 1997 (Tr. 214, 234, 318; Vol. II: 17-

18). In the meantime, on December 3, 1997, Brent Blackey was involved in a fatal accident at 

the Hooksett plant. Lehoux was not at work the day Blackey was killed (Tr. 47-48, 55). An 

MSHA accident investigation ensued, during which Lehoux, among other employees, was 

interviewed (Tr. 84-86). Upon conclusion of the MSHA investigation, on December 12, 1997, 

Lehoux was discharged by Plourde. 

Ill. Findings of Fact and Conclusions of Law 

In order to establish a prima facie case of discrimination under Section 105( c) of the Act, 3 

a complaining miner bears the burden of establishing that 1) he engaged in protected activity and 

2) the adverse action of which he complained was motivated in any part by the protected activity. 

Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 

1980), rev 'don other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F. 2d 1211 (3rd 

Cir. 1981 ); Secretary of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 

(April 1981 ); Secretary of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 

1842 (August 1984); Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 

FMSHRC 2508 (November 1981), rev'd on other grounds sub nom. Donovan v. Phelps Dodge 

Corp., 709 F. 2d 86 (D.C. Cir. 1983). 

The operator may rebut the prima facie case by showing that no protected activity 

occurred or that the adverse action was in no part motivated by the protected activity. Pasula, 2 

FMSHRC at 2799-800. If the operator cannot rebut the primafacie case in this manner, it, 

nevertheless, may defend affirmatively by proving that it was also motivated by the miner's 

unprotected activity and would have taken the adverse action for the unprotected activity alone. 

Id. at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC 

813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford Const. 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 Pasula-Robinette test). 

3 Section 105(c)l of the Act provides that a miner cannot be discharged, discriminated 

against or interfered with in the exercise of his statutory rights because: (1) he "has filed or made 

a complaint under or related to this Act, including a complaint. .. of an alleged danger or safety or 

.health violation;" (2) he "is the subject of medical evaluations and potential transfer under a 

standard published pursuant to section 101; (3) he "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 

proceeding;" or, (4) he has exercised "on behalf of himself or others ... any statutory right afforded 

by this Act." 

1385 
Lehoux ha.S met the first step in establishing a prima facie case of discrimination. The 

record establishes that Lehoux cooperated with MSHA during its investigation of Brent 

Blackey's death in early December 1997, and according to Lehoux's testimony, he "started 

squawking like a pigeon" because he was extremely upset about Brent Blackey's death (Tr. 50, 

54-57). Lehoux further testified that he and Larry Champhene had led the MSHA investigators 

around the plant, pointing out safety concerns, and that he, himself, showed them an electrical 

box that did not have an emergency shut-off, which he believed had something to do with 

Blackey's death (Tr. 57-:59). Indeed, Plourde concedes that Lehoux engaged in protected 

activity (Resp. Br. at 1-2). 

Lehoux has ultimately failed to establish aprimafacie case, however, because he has not 

met his burden of proving the second step--that Plourde's decision to discharge him was, in any 

part, motivated by his cooperation with MSHA. Lehoux attempted to establish a causal 

connection between his safety complaints in early December 1997, following Blackey's death, 

and his discharge shortly thereafter on December 12th, through circumstantial evidence of his 

satisfactory work performance and Oscar Plourde's animus toward MSHA. While bearing in 

mind that "direct evidence of motivation is rarely encountered; more typically, the only available 

evidence is indirect," the evidence presented does not establish an intent to discriminate. See 

Secretary of labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 

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

Looking first to Lehoux's performance, Lehoux argues that absence of any disciplinary 

action in his personnel file establishes that he had been meeting the expectations of the Plourdes, 

or had otherwise been performing his duties satisfactorily (Ex. C-1 ). However, lack of 

documented performance deficiencies must be analyzed in the broader context of the manner in 

which the Plourde brothers have operated over the extensive life of the company. There is 

considerable testimony that the Plourdes do not follow the company's written safety program 

policy, deal with their employees orally, and otherwise run a very informal operation (Tr. 179-

80; Vol. II: 59; Ex. C-2). For example, in response to questioning on cross-examination as to 

whether Lehoux had ever received a written reprimand, salesman Tom Woodley testified to his 

view of how Oscar Plourde ran the company: 

A. Unfortunately, Plourde Sand and Gravel has never done it that way, and so 

there are no written records to show that. Since this has come about, they realize 

that we're going to have to, and we're now going ahead and doing written 

reprimands and that sort of thing. Unfortunately, Mr. Plourde has been in 

business since 1929 or whatever, never had to do that sort of thing. This is the 

first time it's happened, and he's kind of described as old school. He's always--

you understand where you stand with Mr. Plourde, if you know him. He's very 

vocal 

(Tr. Vol. II: 40-41). Indeed, Lehoux expressed a similar view by testifying, on crossexamination, as follows: 

1386 
Q. Would you agree that at Plourde Sand and Gravel many things are done 

informally? 

A. Yes, I would. 

Q. It's a seat-of-the pants operation in some respects, is it not? 

A. Yes. 

Q. Would that be a fair characterization? 

A. Yes. 

Q. And you'd agree that oftentimes Oscar Plourde and Larry Plourde will not · 

create paperwork but rather speak to people, sometimes in Oscar's case, with 

some passion? 

A. Uhm-hmm, yes. 

Q. But would you agree it's more likely that someone would get a verbal warning 

than a written one at Plourde Sand and Gravel? 

A. Yes, I would. 

Q. And in fact, in your experience, they're fairly lax on the paperwork aspect of 

things? 

A. Yeah, they are 

(Tr. 90-1 ). Oscar Plourde referenced the way he and his brother conducted business in the 

following testimony: 

Q. Did you ever think of putting it in writing, if it was a disciplinary action? 

A. We never issued any writing, very, very--I don't remember issuing anybody a 

citation [reprimand] (Tr. 179). 

**** 

Q. And you didn't think, in those months between July and August of '97, to 

when you were going to terminate him, to start showing in his personnel file, 

documenting, performance issues? 

1387 
A. Never entered my mind. 

Q. Never did that? 

A. No, never did it to nobody (Tr. 208; see also 212). 

  

A. We're construction people, we're not paper people (Tr. 224). 

** ** 

A. And his father [Lehoux's] ran a bigger operation than we have. We always 

worked together and hand in hand when we do that, we're of the 60's and the 70's 

and the 50's, we're not of the 90's. Paper is tough for us 

(Tr. 229-30). This cumulative testimony, unrebutted, leads me to conclude that lack of written 

reprimands in Lehoux' s personnel file is not dispositive of whether the Plourdes were satisfied 

with his job performance. 

On the issue ofLehoux's performance, the evidence establishes that Lehoux had 

problems in both the sales and plant superintendent positions. It is clear from the record that, 

despite Lehoux's assertio:ns to the Plourdes that he could handle the positions, Lehoux had very 

little experience in sales and management when they hired him, and received no formal training 

from them throughout his tenure with the company (Tr. 15, 17, 30-31, 168-71, 195-96, 253-58, 

311-14, 339-41; Vol. II: 86-87, 96-98, 129; Ex. C-9). In fact, there was no job description for 

either position and Lehoux was told what to do on the job (Tr. 258-59, 341; Vol. II: 86). 

Lehoux, himself, corroborates the testimony of Oscar Plourde and Dick Weed that Lehoux was 

uncomfortable and performing poorly in sales (Tr. 30, 167, 313). Respecting the plant 

superintendent position, both Plourde brothers testified to Lehoux "slacking off' some time 

around May 1997, and to their increasing dissatisfaction with Lehoux's ability to effectively 

manage and distance himself from subordinate employees, repair and maintain equipment and 

produce material (Tr. 167, 174-75, 188-89, 191-92, 211-12, 241-42; Vol. II: 51-58, 60-63, 70-

71). Tom Woodley testified to having observed the plant running below capacity under Lehoux, 

and to having personally spoken to Lehoux about preventing his subordinates from loafing (Tr. 

Vol. II: 28-32). Moreover, the Plourdes testified to having made constant verbal complaints to 

Lehoux about deficiencies in his work, including, but not limited to, his failure to have safety 

guards replaced on equipment immediately after repair (Tr. 178-83, 185-86, 238, 241-43; II: 57-

60, 85). Lehoux agrees, on cross-examination, that Oscar and Larry Plourde had been unhappy 

with the pace at which he addressed maintenance problems (Tr. 102, 109-10). Lehoux's witness, 

Larry Champhene, testified that Oscar was generally disagreeable, that he was constantly on the 

employees' "backs," and that he routinely "bitched out" the employees, including Lehoux (Tr. 

274-75). Despite numerous assertions that he had never been told by the Plourdes of 

1388 
dissatisfaction with his performance, Lehoux also agreed, on direct examination, that Oscar got 

aggravated often, had a bad temper, yelled and screamed, and pushed the employees pretty hard 

(Tr. 38). Furthermore, he conceded that the Plourdes were unhappy with his supervision of his 

subordinates: 

Q. Was there ever an issue about you working side-by-side with the people you 

were supervising? 

A. Yeah. I don't think they--they saw it as, like, I was trying to be buddy-buddy 

with everybody. But I'd always been taught, if you could, to work with your 

employees a little bit. It shows them that you're willing to help out, it's not just 

something that you're going to hand to someone because you don't want to do it. 

I shoveled right side-by-side with Lawrence Chemphene and Brent and Kenny all 

the time. I did most of the welding, cutting. 

Q. And was that an issue; in other words, was that something that you were 

disciplined for doing? 

A. I wasn't disciplined, but I knew they didn't--they frowned on it a little bit. 

Larry Plourde's son, Philip, we talked about a couple times, that I should back off 

a little bit, but it's hard with three men, which I considered doing a four, five-man 

job, to try and really keep that place up to par. 

Q. Were you ever told that your job was in jeopardy if you didn't stop working 

side-by-side with--

A. No, never. 

Q. Were you told that you were not allowed to work side-by-side with the men or 

that they just wanted you to stand back a little bit more? 

A. No, nobody ever said that to me. I just could tell, the way things went, you 

know, the body language, the way we talked sometimes. I needed to be more of a 

supervisor than a plant helper, but what was I going to do? We needed it. It's 

either that or it doesn't run 

(Tr. 42-43). Moreover, Lehoux testified to frustration with the job by May of 1997, based on 

frequent disagreements with Oscar Plourde because of pervasive unsafe work conditions, and 

Oscar Plourde's tendency to drive the workers to produce at the expense of their safety (Tr. 32, 

35-42, 48, 50-51, 108, 118-19, 121, 126-27, 154-55). His dissatisfaction escalated to a level that 

caused him to begin searching for employment elsewhere, he asserted, sometime around 

August/September 1997 (Tr. 105-07). Lehoux further testified that he "started feeling hostility 

from Oscar before, maybe, you know, in those weeks prior to the death [Brent Blackey's]" (Tr. 

1389 
63). Consequently~ based on the evidence, I conclude that throughout most of his tenure, Lehoux 

was not meeting the Plourdes' expectations, of which he was made aware, especially through 

verbal confrontations with Oscar Plourde and that, by May of 1997, the dissatisfaction had 

become mutual. 

The question raised by Lehoux, at this juncture, is whether Oscar Plourde initially 

intended to demote him, then changed his mind when Lehoux cooperated with MSHA' s 

investigation of Brent Blackey's death. For the following reasons, I think not. As the president 

of the company, Oscar Plourde, without question, is the decision-maker. The evidence clearly 

establishes that Oscar Plourde complained to his management team during the Summer of 1997 

about Lehoux's performance and requested that Tom Woodley "look around, keep an eye out" 

for a replacement superintendent in or around late September (Tr. 187, 197, 205, 240, 315-16; 

Vol. II: 12-13, 64-65). Lawrence Plourde testified credibly that, despite his earlier desire to give 

Lehoux another chance by demoting him to a loader operator or other lesser position, he had 

become convinced by September of 1997, that replacing Lehoux was necessary and he ultimately 

concurred in his brother's decision to fire him (Tr. Vol. II: 64-69, 73-75, 84). 

The record also establishes that Don Davis' original report-to-duty date in November 

1997, as the new plant superintendent, was delayed until December 81

h, in order for Davis to 

accommodate his former employer (Tr. 214, 232, 318; Vol. II: 17-18, 100-01, 106-07). Oscar 

Plourde testified credibly that he had always intended to fire Lehoux as soon as he brought a 

replacement on board, but following the advice of his attorney, he had kept Lehoux on the job for 

the first week of Davis' tenure as the new plant superintendent, until MSHA had concluded its 

fatality investigation (Tr. 190, 197, 215, 217, 223, 227, 236). Lawrence Plourde, Richard Weed 

and Tom Woodley corroborated Oscar Plourde's testimony that the decision to fire Lehoux had 

been made prior to hiring Don Davis and Brent Blackey's death (Tr. 318-19, 325; Vol. II: 19-20, 

68-71, 91 ). Furthermore, Richard Weed's testimony, that the office manager, Maria LaRocca, 

had been asked to process a final payroll check for Lehoux before Brent Blackey's death, was 

unrebutted (Tr. 318). Davis testified credibly that on his first day at Plourde, he and Lehoux 

were told that Davis would be the plant superintendent and that Lehoux would be a working 

foreman (Tr. Vol. II: 100). Tom Woodley testified likewise (Tr. Vol. II: 18-20). This evidence is 

consistent with Oscar Plourde's testimony that he never intended to give Lehoux advance 

warning of his termination, and leads me to conclude that what Lehoux and the other workers 

were told about the new work arrangement was merely a ruse to maintain Lehoux on board until 

his availability for MSHA was no longer necessary (Tr. 190, 227-29). 

Lehoux's theory of discrimination focuses, as well, on Oscar Plourde's well-documented 

dislike of MSHA, and the proximity between Lehoux's cooperation with the fatality 

investigation and his discharge (Tr. 71-75, 86, 89, 162, 175-78, 183-85, 276, 288, 296-97, 344-

45; Vol. II: 42-45, 92). Lehoux cites an incident between Oscar Plourde and himself, around 

December 9th or 10th, in which Lehoux admitted that he had disclosed electrical safety violations 

to MSHA during the fatality investigation (Tr. 58-60). While Oscar Plourde's rendition of the 

incident differs as to whether it was he or Lehoux who had raised the subject with the other, they 

1390 
are in agreemenfthat Plourde essentially walked off without arguing (Tr. 219-21, 244). To 

surmise that Oscar Plourde was angered by Lehoux's admission based on his dislike ofMSHA, 

contrary to his displayed nonchalance, is speculative, at best. I credit Oscar Plourde's testimony 

as to his state of mind at the time: 

Q. Did you walk away after he told you? 

A. He told me _he told 'em. I says, "Yeah." Then I went upstairs. He told them, I 

just walked off, that's all. 

Q. You didn't try to argue with him? 

A. No. 

Q. Were you unhappy that he had disclosed this or anything to MSHA? 

A. At this point, no, because the investigation was on. Whatever was, was. 

That's the way I look at it 

(Tr. 144-45). Indeed, no evidence has been presented that Oscar Plourde's hostility toward 

MSHA was transferred to any of his employees, respecting their cooperation with MSHA, during 

the time period in question or any other time (see also Tr. Vol. II: 129-40, 142-44). The evidence 

establishes that the employees were advised by management of their right to cooperate fully with 

MSHA free of harassment, that they were made available to MSHA without interference, and 

that management was unaware of the content of the employees' discussions with the 

investigators (Tr. 74-75, 87-90, 230, 244-46, 281-88, 321-22, 324; Vol. II: 91-92, 122). 

If anything, the Plourdes were consistent throughout Lehoux's tenure with the company: 

the same lack of prudent management skills that afforded him the benefit of employment and 

was utilized in his supervision, became the very weapon that struck him down. My function is to 

determine whether Lehoux's discharge was discriminatory, not whether he was treated unfairly, 

although I am moved to comment that he was. It appears likely that Lehoux was "given a 

chance" to work in positions for which his skills were sorely lacking because, in part, his father 

had been well-liked and respected in the industry by the Plourdes and because of other reasons, 

not necessarily job related, that Richard Weed put aptly: 

A. I knew him personally. He grew up in our neighborhood. He grew up with 

my kids, same neighborhood, same school; had knowledge of his mother and 

father. And as a result of sort of understanding where he had been in life, Marine 

Corps, I had been in the Marine Corps, so we .had a lot in common, a lot to talk 

about. And that sort of blended into the process 

(Tr. 31 O; see also 229-30). For perhaps the best of intentions, Lehoux was programmed to fail 

1391 
from the start, insufficiently trained to master his duties with the resources made available to 

him, and denied formal, progressive discipline, that would have put him on notice, with 

specificity, of his deficiencies and the consequence of failure to timely improve. For the lack of 

sufficient circumstantial evidence, as explained above, I am unwilling to take the broad leap 

necessary to conclude that the absence of professionalism and fairness attendant Lehoux's 

employment at Plourde was, in any part, due to his cooperation with MSHA. Accordingly, it is 

my finding that Lehoux's discharge was in no part motivated by his protected activity. 

Assuming, arguendo, that Lehoux had established a prima facie case of discrimination 

under Section 105( c ), Plourde has clearly rebutted his case by proving that Lehoux was 

terminated for a legitimate, business-related reason: that he was not performing to the Plourdes' 

satisfaction and would have been terminated for that reason alone prior to Brent Blackey's death, 

had Don Davis reported to duty in November 1997, as had been originally scheduled. 

ORDER 

Accordingly, inasmuch as Lehoux has failed to establish, by a preponderance of the 

evidence, that he was terminated for engaging in protected activity under the Act, it is 

ORDERED that the complaint of John D. Lehoux against Plourde Sand and Gravel, under 

Section 105(c) of the Act, is DISMISSED. 

Distribution: 

(L _ ,, . 12-Md- ~Bulluck Administrative Law Judge 

Susanna G. Robinson, Esq., Douglas, Robinson, Leonard & Garvey, P.C., 6 London Road, 

Suite 502, Concord, NH 03301 (Certified Mail) 

Frank Spinella, Esq., Hall, Morse, Anderson, Miller & Spinella, P.C., P.O. Box 2289, Concord, 

NH 03302 (Certified Mail) 

Int 

1392 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 1 1998 

CIVIL PENAL TY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 95-467 

A. C. No. 36-07172-05513 

v. 

BELLEFONTE LIME COMPANY, INC., 

Respondent 

Gentzel Quarry 

DECISION ON REMAND 

Before: Judge Weisberger 

On November 30, 1998, the Commission issued a decision in the above captioned case 

remanding it for "consideration of whether the violation had been caused by Bellefonte's 

unwarrantable failure to comply with the standard, and for the reassessment of the civil penalty if 

appropriate" (slip op., p.2, 20 FMSHRC _J. 

In analyzing the level of Respondent's negligence, I note that none of Petitioners 

witnesses who observed falling rocks brought this hazard to the attention of Respondent. 1 

Also, I note that none of Respondent's witnesses observed materials falling from the cited 

areas, no reports concerning falling materials were ever made by the employees,· no precursors to 

a slope failure were visible prior to the issuance of the citation, and that Respondent expected 

that miners would be out of the areas in about one shift's time. 

1

/ Moerschbacher was asked whether he told his supervisor about rocks that fell down, 

and he said that he did. However, his testimony regarding what he specifically told his 

supervisor, Jim Peters is as follows: "I told him that I thought it would be smart to try to bench 

that to try to make it safer" (sic) (Tr. 173). His testimony is thus somewhat ambiguous as to 

whether he explicitly told Peters about rocks that had fallen down. I note that Peters who 

acknowledged that he sent a bulldozer into the cited area at the suggestion of an employee, 

denied that any employee informed him that the cited areas were unsafe. I observed Peters' 

demeanor, and find his testimony credible on this point. 

1393 
On the other hand, Peters indicated that it was company policy that miners not work in 

the cited areas when it rained. According to Peters, one of the reasons for this policy was the 

possibility that rain could loosen material on the pile. Hence, it might be inferred that Peters was 

aware of the possibility that the cited area was hazardous. There is no evidence that Respondent 

took any specific precautions to mitigate the possible hazards. In addition, 5 months prior to the 

inspection at issue, a section 107(a) imminent danger order was issued to Respondent citing 

Respondent for violating section 56.3200, supra, in another part of the quarry at issue. Within 

this framework of evidence, I find that the level of Respondent's negligence to have been more 

than ordinary, and reached the level of aggravated conduct. I thus conclude that the violation 

resulted from its unwarrantable failure. 

Since this conclusion is based on the same factors previously set forth in my initial 

decison in discussing the level of Bellefonte' s negligence for purpose of assessing a penalty, I 

find that it is not appropriate herein to reassess the penalty I previously assessed. 

~w~ Administrative Law Judge 

Distribution: 

Yoora Kim, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400, Arlington, VA 22203 (Certified Mail) 

John A. Snyder, Esq., McQuaide, Blasko, Schwartz, Fleming & Faulkner, Inc., 811 University 

Drive, State College, PA 16801-6699 (Certified Mail) 

dcp 

1394 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

December 22, 1998 

ISLAND CREEK COAL COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

CONTEST PROCEEDINGS 

Docket No. VA 99-11-R 

Order No. 7297950; 10/14/98' 

VP 8 Mine 

Mine ID 44-03 795 

Appearances: Elizabeth S. Chamberlin, Esq., Consol Inc., Pittsburgh, Pennsylvania, for 

the Contestant; 

Robert S. Wilson, Esq., Howard N. Berliner, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, and 

Larry Coeburn, Conference and Litigation Representative, Mine Safety 

and Health Administration, Norton, Virginia, for the Respondent. 

Before: Judge Weisberger 

I. Statement of the Case 

This case is before me based upon a Notice of Contest filed by Island Creek Coal 

Company ("Island Creek") challenging the issuance by the Secretary of Labor ("the Secretary") 

of an order issued under section 104( d)( 1) of the Federal Mine Safety and Health Act of 1977 

("the Act") alleging a violation of 30 C.F.R. § 75.l 725(c). On October 21, 1998, Island Creek 

filed a Motion for Expedited Hearing. A conference call was convened on October 22, 1998, 

with counsel for both parties and it was agreed that the matter be scheduled for hearing on 

November 12, 1998. On that date a hearing was held in Abingdon, Virginia. 

II. Findings of Fact and Discussion 

On September 20, 1998, Elmer L. Deel, Jr., Island Creek's general maintenance foreman, 

was responsible for supervising all maintenance work being performed at the VP 8 Mine. In this 

capacity he was supervising the installation of a new roller on the 5A belt which was 

1395 
deengerized, but ~as not locked and tagged. 1 Deel noted that the speed reducer which was a part 

of the drive mechanism of the SA belt, and attached to that belt~ needed oil. Deel told Ronnie 

Maggard, a maintenance foreman, that he should add oil to the speed reducer. Deel did not tell 

Maggard to make sure that the SA belt was tagged and locked, although Deel was aware that it 

was company policy to have the belt tagged and locked prior to the performance of maintenance. 

Maggard in turn told Charles David Miller, a rock dust motorman, to add oil to the speed 

reducer, but did not tell him to lock and tag out the belt. Miller climbed on a I beam located 

within arms length of the speed reducer, and at a point 4 to S feet above the SB belt which is 

located above the 5A belt and dumps material on the 5A belt. Thomas K. Ray, an electrician, 

was asked by Miller to assist in the task. Ray stood on the 5B belt, which had been deenergized, 

in order to pump oil into a hose that Miller had placed in the speed reducer to fill it with oil. The 

5B belt was unexpectedly energized and it traveled 400 feet carrying Ray with it before it was 

stopped. Ray injured his hand, and as of the date of the hearing had been off from work since 

September 20, 1998. 

The order at issue, issued subsequent to an investigation, alleges a violation of 30 C.F.R. 

§ 7 S .1725( c )2 in that maintenance was being performed on the SA conveyor belt drive " ... while 

the injured employee was positioned on top of the SB conveyor tail piece. The SB conveyor belt 

drive was not locked against motion. The SB conveyor drive was started from a remote 

location, .... " (Emphasis added). At the hearing, counsel for the Secretary in his opening 

argument alleged as a basis for the violation, that maintenance was being performed on the 5B 

belt as an employee was on it, and that the 5B belt was not locked and tagged. He also argued 

that the 5A belt was not locked and tagged while it was being worked on. 

Ill. Discussion 

A. Maintenance on the SB Belt 

It is the Secretary's position, in essence, that maintenance was being performed on the 

5B belt, which was not locked and tagged. The assertion that maintenance was being performed 

on this belt is predicated upon the fact that, in adding oil to the speed reducer, Ray was standing 

on 5B belt. I take cognizance of the holding by the Commission that the purpose of section 

1

/ According to Deel, he had told Tommy Lee Proffit, the section mechanic on the day 

shift, to lock and tag out the SA belt and the latter nodded his head. Proffit, in contrast, testified 

that he had asked Deel if everything was tagged and locked and the latter said "lets go" (Tr. 96). 

Later in his testimony, he testified that Deel said that "[E]verything is locked out. Lets go" 

(Tr. 103). In light of my finding (III, infra) sustaining Island Creek's contest of the order at issue, 

it is not necessary to resolve this conflict in testimony relating to Island Creek's negligence. 

2

/ 30 C.F.R. § 7S.l 72S(c) provides, as follows: "[R]epairs or maintenance shall not be 

performed on machinery until the power is off and the machinery is blocked against motion, 

except where machinery motion is necessary to make adjustments." 

1396 
75.l 725(c), supra, is to prevent "to the greatest extent possible," accidents in the use of 

equipment, and that "the manifest intent of the regulation is to restrict repair of machinery while 

the power is on." (Arch of Kentucky, Inc., 13 FMSHRC 753, 756 (1991)). Nontheless, in order 

for section 7 5 .1725( c ), supra, to apply to the situations presented at the 5B belt herein, it must be 

established by the Secretary that "repairs or maintenance" were being performed on that belt. 

There is no evidence that any repairs were being performed on that belt. The Secretary must thus 

establish that the action of Ray in standing on the 5B belt in order to assist in the addition of oil 

to the speed reducer located on the 5A belt, constituted "maintenance" of the 5B belt. 

In Southern Ohio Coal Company, 14 FMSHRC 978, 983 (June 25, 1992), the 

Commission set forth the essence of the term maintenance as follows: 

That essence, as the dictionary indicated is that maintenance means 'the 

labor of keeping something (as buildings or equipment) in a state of repair or . 

efficiency: care, upkeep ... [p]roper care, repair, and keeping in good 

order ... [t]he upkeep, or preserving the condition of property to be operated.' 

See Webster's Third New International Dictionary. Unabridged 1362 (1971); A 

Dictionary of Mining. Mineral. and Related Terms 675 (1968); and Black's Law 

Dictionary 859 (51

h ed. 1979). 

Since no action was being taken by any miner to care for the condition of the 5B belt, I 

find that it has not been established that any maintenance was being performed on that belt. 

The plain language of section 75.1725(c), supra, does not contain any words that could 

reasonably be interpreted as prohibiting a person from standing on one piece of equipment in 

order to assist in the maintenance of another piece of equipment. I thus find that no maintenance 

was being performed on the 5B belt. Since neither repair nor maintenance was being performed 

on the 5B belt, any conditions or circumstances relied upon by the Secretary relating to that belt 

can not be the basis of any violation under section 75 .1725( c ), supra. 

B. The 5A Belt 

The record establishes that on September 20, repairs were being made to the 5A belt in 

the nature of replacement of a roller. Also, maintenance was being performed in the addition of 

oil to the speed reducer, a part of this belt. According to section 75. l 725(c), supra, if these 

activities are performed it is mandated that: 1. The power be off, and 2. the machinery be 

blocked against motion.3 Hence, a violation is established where maintenance is performed 

either with the power on, or where the machinery is not "blocked against motion." The parties 

have agreed that during the time in question the power was off at the 5A belt. It appears to be the 

Secretary's position that the latter requirement in section 7 5 .1725( c ), supra, for "machinery" to 

3 I Section 7 5 .1725( c ), supra, provides for an exception "where machinery motion is 

necessary to make adjustments." Both parties agree that this exception does not apply to the 

instant case. 

1397 
be "blocked against motion," was not being complied with because the SA belt was not "locked 

and tagged." It is true that imposing such a requirement would fulfill the broad intent of section 

75.1725(c), supra, as described by the Commission in Arch of Kentucky, supra. However, in 

evaluating the scope to be accorded the language of a regulatory standard, the test to be applied is 

whether the regulation gives a reasonably prudent person notice that it prohibits the cited 

conduct. (Southern Ohio Coal Co., 14 FMSHRC 978 (June 1992). Section 75.l 725(c), supra, 

does not give notice that it prohibits the cited conduct. The plain language of section 7 5 .1725( c ), 

supra, requires that "machinery" being repaired or maintained shall be "blocked against motion." 

There is no requirement that the equipment or circuits energizing the equipment be tagged and 

locked out. The mere fact that it is the policy of Island Creek to require that the power source to 

the belt be tagged and locked prior to performing nonelectrical work on the belt does not, per se 

establish that Island Creek was on notice that section 75. l 725(c), supra, requires tagging and 

locking the power source. There is nothing in the record regarding Island Creek's intent in 

establishing such a policy. It is entirely possible that such a policy was adopted by Island Creek 

in order to require a higher standard of conduct than that set forth in section 75 .1725( c ), supra. 

I note the testimony of Thomas K. Ray, an electrician, Charles David Miller, a motor 

man, and Tommy Lee Proffit, an electrician, all employed by Island Creek that, in essence, they 

were told by "management" that the "law" required locking and tagging prior to working on 

belts. However, in reaching a decision regarding the scope of section 75.l 725(c), supra, I place 

more weight upon the Commission's interpretation of the requirement of this standard. I am 

guided by the Commission's decision inMettiki Coal Corp. 13 FMSHRC 760 (1991) 

interpreting 30 C.F.R. § 77.404(c), which pertains to surface coal mines, and contains the exact 

same language as section 75.1725(c), supra. In Mettiki, the operator was cited for an improperly 

functioning electrical breaker in that the lock out device on the switch did not function as it was 

designed. The Commission found that at the time of MSHA' s inspection that led to the issuance 

of the citations at issue therein, there was no electrical work in progress, but rather miners were 

making nonelectrical repairs to the speed reducer for the belt that was powered by the breaker in 

question. The Commission emphasized the distinction between electrical work requiring devices 

to be locked out and tagged pursuant to 30 C.F.R. § 77.501,4 and mechanical repairs which 

require, under section 77. 404( c ), supra, which parallels section 7 5 .1725 ( c ), supra, that the power 

be off and the machinery blocked against motion. The Commission, in setting forth that locking 

and tagging out is not required, stated as follows: "A lock out of the equipment or circuit is not 

required. Thus, when mechanical repairs are being made to mechanical equipment and there is 

no danger of contacting exposed energized electrical parts, MSHA requires only that the power 

be turned off and the machinery be blocked against motion." (Mettiki, supra, at 766). Although 

the Commission's above analysis may be construed to constitute dictum, nontheless it constitutes 

a clear sound pronouncement of regulatory interpretation, and accordingly should be followed. 

Therefore, for the all above reasons, I conclude that there is no requirement set forth in 

4

/ The parallel requirement regarding underground coal mines is forth in 30 C.F.R. 

§ 75.511. 

1398 
the Commission's above analysis may be construed to constitute dictum, nontheless it constitutes 

a clear sound pronouncement of regulatory interpretation, and accordingly should be followed. 

Therefore, for the all above reasons, I conclude that there is no requirement set forth in 

section 7 5 .1 725( c ), supra, that locking or tagging of a circuit is required prior to mechanical 

work on a belt. 5 Accordingly, Island Creek did not violate section 75.l 725(c), supra, when its 

employees added oil to the SA belt and repaired it while the power was off, but when it was not 

locked and tagged. Hence, the Contest is SUSTAINED. 

ORDER 

It is ORDERED that Island Creek's Notice of Contest is SUSTAINED, and Order 

No. 7297950 shall be DISMISSED. 

/ 

~weber-- Administrative Law Judge 

Distribution: 

Elizabeth S. Chamberlin, Esq., CONSOL Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, 

PA 15241-1421 (Certified Mail) 

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Room 516, Arlington, VA 22203 (Certified Mail) 

dcp 

5/ I find that the contrary interpretation argued the Secretary is not reasonable, and it not 

entitled to difference especially since it has not been embodied in any policy statement. 

1399 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 4 1998 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

on behalf of PAUL MIDDLETON, 

Complainant 

v. 

J & C MINING, L.L.C., 

Respondent 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 99-60-D 

BARB CD 98-19 

Mine No. 1 

Mine ID 15-17707 

DECISION APPROVING SETTLEMENT 

Appearances: Brian Dougherty, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Complainant 

Susan Lawson, Esq., Harlan, Kentucky, for the Respondent. 

Before: Judge Weisberger 

On April 27, 1998, Paul Middleton filed a Discrimination Complaint with the Mine 

Safety and Health Administration (MSHA) alleging that he was discharged by J & C Mining, 

L.L.C. ("J & C") from his position as a day-shift foreman as a result of his refusal, on two 

occasions, to instruct his crew to work in unsafe conditions, and his complaint to J & C's owner 

regarding his direct supervisor's unsafe instructions. 

On November 17, 1998, the Secretary filed an Application for Temporary Reinstatement 

alleging, in essence, that the Complaint of Discrimination filed by Middleton was not frivolous. 

On November 17, 1998, the Commission's Docket Office received a statement from J & C 

alleging that Middleton was terminated for just cause with no discriminatory intent. In its 

statement, J & C also requested a hearing. On November 30, 1998, the undersigned arranged a 

telephone conference call between the Secretary and J & C's representative in order to arrange a 

hearing date. After discussion, the Secretary agreed that the hearing should be scheduled to 

commence December 16, 1998. The matter was heard in Kingsport, Tennessee, on December 

16-17, 1998. 

At the hearing, the Parties reached a settlement that disposes of the Application for 

Temporary Reinstatement. The terms of parties' settlement, are set forth in the transcript of this 

proceeding, and are incorporated herein. I find that the settlement is appropriate considering the 

record in this case, and it is approved. 

1400 
ORDER 

It is ordered that the Parties shall abide by all the terms of the settlement. It is further 

ordered that, based on the parties' agreement and interest of justice, the transcript of the hearing 

in this proceeding be included in the record of the companion discrimination proceeding, Docket 

No. KENT 99-61-D. It is further ordered that the Application of Temporary Reinstatement be 

DISMISSED. 

Avram Weisberger 

lAdministrative Law Judge 

703-756-6215 

Distribution: 

Brian Dougherty, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones 

Road, Suite B-201, Nashville, TN 37215-2862 (Certified Mail) 

Susan Lawson, Esq., 111 First Street, P.O. Box 837 Harlan, KY 40831 (Certified Mail) 

dcp 

1401 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., 6TH FLOOR 

W ASIDNGTON, D.C. 20006-3868 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PLOURDE SAND & GRAVEL, 

Respondent 

November 17, 1998 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 98-56-M 

A. C. No. 27-00094-05535 

Plourde Sand & Gravel 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Merlin 

This case is before me upon a petition for assessment of four civil penalties under section 

105(d) of the Federal Mine Safety and Health Act of 1977. The Solicitor has filed a motion to 

approve settlements. A reduction in the penalties from $200,000 to $40,000 is proposed. 

The violations were issued after a fatality occurred at a sand and gravel operation. Order 

No. 4434213 was issued for a violation of 30 C.F.R. § 56.14204 because a miner was greasing 

gears on a classifier while the gears were in motion. The originally assessed penalty was 

$50,000 and the proposed settlement is $30,000. Order No. 4434214 was issued for a violation 

of30 C.F.R. § 56.11001 since a safe means of access was not provided to grease and service the 

gears on the classifier. The originally assessed penalty was $50,000 and the proposed settlement 

is $3,500. Order No. 4434215 was issued for a violation of30 C.F.R. § 56.14107(a) because 

guards were not installed on the gears for the classifier. The originally assessed penalty was 

$50,000 and the proposed settlement is $3,500. Order No. 4434216 was issued for a violation of 

30 C.F .R. § 56.18006 because the victim had not been indoctrinated in safe work procedures. 

The originally assessed penalty was $50,000 and the proposed settlement is $3,000. 

The operator's very small size and its good faith abatement are noted as grounds for the 

proposed penalties. 

1402 
The facts as set forth by the Solicitor are as follows: 

This case concerns a single fatality which occurred on December 3, 1997. 

A four-man crew assembled an old classifier which was being put back into 

service in order to meet demand. At the end of the workday, the crew with the 

exception of the victim, was conducting a test run of the now fully assembled 

machine. At the time of the fatal accident, the owner/operator and his supervisory 

agents were absent from the site and had been for most of the workday. Prior to 

conducting the test run the crew discussed the remaining assignments. The victim 

expressed a desire to grease the bull gears of the classifier. According to the 

statements of the three surviving employees at the site when the fatality occurred, 

the senior miner, a non-supervisory worker, told the three other employees, 

including the decedent, that the full gears of the classifier would be greased the 

next morning prior to start up for the day. While a test run of material was being 

processed, the decedent, who was out of sight of the other three employees, 

apparently climbed up the rear of the machine, attempted to grease the gears, and 

was pulled into the mechanism and killed. The rest of the crew was at the front of 

the machine and first learned of a hazard when they heard the victim scream to 

tum off the machine. The victim was found crushed in the large gears. The 

decedent had been employed for about eighteen months and had performed 

numerous tasks related to the operation of a mine. He had not received new miner 

training but this sand and gravel operation was exempt from enforcement of that 

standard pursuant to a rider to the MSHA budget appropriation. He had received 

an eight-hour refresher training course from the New Hampshire Sand and Gravel 

Association, but that training does not appear to have covered either the safe and 

proper procedures to access and (sic) elevated location or the safe and proper 

procedures to performed (sic) required greasing or other maintenance. The gears 

were not guarded. However, the gears were about 99 inches above the ground and 

about 51 inches above the surface of concrete blocks adjacent to the newly erected 

classifier. Unless one were performing a maintenance function in the area around 

the gears, one would not be exposed to any hazard from exposure to the gears. 

It is well established that penalty proceedings before the Commission and its judges are 

de novo and that the Secretary's proposed penalties are not binding on the Commission and its 

judges. Sellersburg Stone Company, 5 FMSHRC 287, 290-292 (March 1983); affd, 736 F.2d 

1147 (71

h Cir. 1984); U.S. Steel Mining Co., 6 FMSHRC 1148, 1150 (May 1984); Missouri Rock 

Inc., 11FMSHRC136, 140 (February 1989); Doss Fork Coal Company, 18 FMSHRC 122, 130 

(February 1996); Wallace Brothers Inc., 18 FMSHRC 481, 483-484 (April 1996); Mechanicsville Concrete. Inc., 18 FMSHRC 877, 881, (June 1996). 

As already noted, Order No. 4434213 charges a violation of 30 C.F .R. § 56.14204 

because the decedent miner was greasing the gears while they were in motion. I find that the 

violation occurred as charged. I also find that the violation was extremely serious because it was 

1403 
the immediate cause of the fatality. The decedent was extremely negligent because in greasing 

the gears he ignored the statement of the leadman that greasing would be done on the following 

day. There is no dispute that the decedent was a rank and file miner, but since he was not trained 

and no supervisors were present, his very high negligence is attributable to the operator. !LS:. 

Coal Inc., 17 FMSHRC, 1684, 1686 (October 1995); Fort Scott Fertilizer-Cullor, 17 FMSHRC 

1112, 1116 (July 1995). On this basis the unwarrantable finding must be upheld. In his motion 

the Solicitor does not demonstrate awareness of the law applicable to imputation of negligence 

under these circumstances. The Solicitor describes the leadman as a senior miner who is a nonsupervisory worker. It does not appear that the leadman was negligent. In view of the findings 

set forth herein I conclude that an appropriate penalty is $30,000. 

Order No. 4434214 cites a violation of 30 C. F. R. 56.11001 due to the failure to provide 

safe access to the gears. I find the violation occurred as charged. Accessing the gears in this 

manner presented a slip and fall hazard. Although in this instance that hazard did not occur, I 

find the violation still was serious because of the risk involved and that the operator was 

negligent. I conclude that an appropriate penalty is $3,500. 

Order No. 4434215 cites a violation of 30 C.F. R.14107 for failure to guard the gears. I 

find the violation occurred as charged. Lack of guarding can cause serious injuries although it 

did not in this case. The violation was therefore, serious and the operator was negligent. I 

conclude that an appropriate penalty is $3,500. 

Order No. 4434216 was issued for a violation of 30 C. F .R. § 56.18006 because the 

decedent had not been sufficiently trained in safe work procedures. The lack of indoctrination 

constituted a serious violation and the operator was negligent. I conclude that an appropriate 

penalty is $3,000. 

The Solicitor has called my attention to the operator's very small size and to its substantial efforts at good faith abatement. According to the Solicitor in an effort to assist the mining 

community in learning from these types of tragic accidents, the operator has agreed to allow 

MSHA to make a videotape at the mine in connection with a training film addressing the 

multiple facets of many common accidents. I have taken these factors in to account in 

determining the amount of penalties under section l lO(i) of the Act. 

What the Solicitor does not call my attention to is the operator's poor history of prior 

violations as indicated by the assessment sheet attached to the penalty petition. As required by 

section 11 O(i), I have carefully considered this history in determining the above penalty amounts. 

The operator should realize that any future violation of the Act will result in even more 

substantial penalties and I will not be amenable to recommendations for reductions of the 

magnitude allowed here. If the operator is to conduct operations under the Mine Act, it must 

comply with the requirements of the Act or suffer the consequences. I trust that MSHA will 

closely monitor the operator's activities. 

1404 
Wherefore, the motion for approval of settlements is GRANTED. 

It is ORDERED that Order Nos. 4434214, 4434215 and 4434216 be MODIFIED from 

104(d)(2) orders to 104(a) citations and to delete the unwarrantable failure findings. 

It is further ORDERED that the operator PAY $40,000 in accordance with the payment plan 

set forth in the settlement motion. 

= 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

David L. Baskin, Esq., Office of the Solicitor, U. S. Department of Labor, Room E-375, John F. 

Kennedy Federal Building, Government Center, Boston, MA 02203 

Frank P. Spinella, Jr., Esq., Hall, Morse, Anderson, Miller & Spinella, PC, 14 Centre Street 

P. 0. Box 2289, Concord, NH 03302-2289 

/gl 

1405 
1406 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., 6m FLOOR 

WASIDNGTON, D.C. 20006-3868 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

INDEPENDENCE MINING 

COMP ANY INCORPORATED, 

Respondent 

November 10, 1998 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 98-98-M 

A. C. No. 26-01621-05546 

J erritt Canyon 

ORDER TO SHOW CAUSE 

Before: Judge Merlin 

This case is before me upon a petition for assessment of civil penalties under section 105( d) 

of the Federal Mine Safety and Health Act of 1977. On August 3, 1998, an order was issued 

disapproving the settlement motion submitted by the parties for the two violations in this case and 

directing them to submit additional information to support their motion. On November 2, 1998, the 

parties filed a response to the order to submit information. 

Citation No. 7951067 was issued under section 104(d)(l) of the Act for a violation of 

30 C.F .R. § 56.6306(b ). According to the citation, several loaded blast holes were driven over by 

mobile equipment. The violation was designated significant and substantial and the result of the 

operator's unwarrantable failure. The parties again propose to modify this citation from a 

104(d)(l) citation to a 104(a) citation, to delete the unwarrantable failure finding and to make no 

change in the original assessed penalty $4,000. The parties represent that the modification is 

warranted because there is no evidence that the lead blaster had knowledge that a driver had 

driven over an unfilled loaded blast hole or an uncoiled detonator cord or that the company 

condoned such a practice. The parties state that it is company policy to use a spotter while 

driving through a blast pattern when a hole is loaded, the detonator is sticking out and the hole is 

not backfilled. Finally, the parties aver that the penalty is warranted because the violation was 

obvious. 

Order No. 7951068 was issued under section 104(d)(l) of the Act for a violation of 

30 C.F.R. § 56.6303(c). According to the order, two drills were drilling blast holes within 

twenty feet of holes that contained a detonator and booster and within forty feet of holes that had 

been fully loaded and stemmed. The violation was designated non-significant and substantial, 

but the result of the operator's unwarrantable failure. The parties re-propose to modify this order 

from a 104(d)(l) order to a 104(a) citation. The modification to a 104(a) citation is necessary 

because once the underlying 104( d)(l) citation is modified and no longer exists, the statutory 

predicate for a 104(d)(l) order is not present. A modification of this order to a 104(d)(l) citation 

1407 
is not possible because the violation was designated non significant and substantial. The 

negligence and gravity findings remain unchanged. The same reduction in the original assessed 

penalty from $2,000 to $50 is proposed. 

The reasons set forth in the August 3 order rejecting the original settlement motion apply 

to the second submission. The motion still does not make sense. On the one hand the deletion of 

an unwarrantable failure finding results in no change in the penalty while on the other hand the 

same modification results in a 97 .5% reduction. 

It is well established that penalty proceedings before the Commission and its judges are 

de novo and that the Secretary's proposed penalties are not binding on the Commission and its 

judges. Sellersburg Stone Company, 5 FMSHRC 287, 290-29 (March 1983), affd, 736 F.2d 

1147 (7th Cir. 1984); U.S. Steel Mining Co., 6 FMSHRC 1148, 1150 (May 1984); Missouri 

Rock. Inc., 11FMSHRC136, 140 (February 1989); Doss Fork Coal Company, 18 FMSHRC 

122, 130 (February 1996); Wallace Brothers Inc., 18 FMSHRC 481, 483-484 (April 1996); 

Mechanicsville Concrete. Inc., 18 FMSHRC 877, 881(June1996). In light of the representations and documentation provided by the parties, I find that negligence for Citation No. 7951067 

is ordinary and that a $4,000 penalty is excessive. A penalty of$2,000 is appropriate based on 

the statutory criteria of 11 O(i). With respect Order No. 7951068, I agree that the order must be 

modified to 104(a) citation and that the unwarrantable failure finding deleted because the 

statutory predicate for a 104( d)(l) order is no longer present. However, I find that a $50 penalty 

for a violation that is characterize as due to high negligence is inadequate and that a penalty of 

$100 is appropriate. 

In light of the foregoing, it is ORDERED that the motion for approval of settlement be 

DENIED. 

It is further ORDERED that within 21 days of the date of this order the parties show 

cause why this case should not be settled for the amounts designated above. 

It is further ORDERED that if the parties do not respond within 21 days an order will be 

issued directing the operator to pay $2, 100. 

- Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail & Facsimile) 

Marshall Salzman, Esq., Trial Attorney, Office of the Solicitor, U. S. Department of Labor, 71 

Stevenson Street, Suite 1110, San Francisco, CA 94105-2999 

1408 
Sheila K. Cronan, Esq., Counsel, Trial Litigation, 4015 Wilson Boulevard, Room 414, Arlington, 

VA 22203 

Mr. Brent Chamberlain, Human Resources Manager, HC 31, Box 78, Elko, NV 89801 

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1409 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

December 14, 1998 

THE DOE RUN COMP ANY, 

Contestant 

CONTEST PROCEEDINGS 

v. Docket No. CENT 98-83-RM 

Citation No. 7859812; 2/24/98 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Respondent Casteel-Buick Mine 

Mine ID No. 23-00457 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 98-277-M 

A. C. No. 23-00457-05589 

v. 

THE DOE RUN COMP ANY, 

Respondent Casteel Buick Mine 

PARTIAL SUMMARY DECISION 

Before: Judge Melick 

These proceedings involve Order No. 7859812 issued pursuant to Section 104(d)(l) of 

the Federal Mine Safety and Health Act of 1977, 30 C.F.R. § 801 et seq.., the "Act." The order 

alleges a violation of 30 C.F.R. § 57.3202 and charges as follows: 

A fatal accident occurred at this operation on 1119/98, when a large slab 

fell on a miner who was setting up a surveying instrument at intersection 3 l 13b 

in slope 81 V20. The slab was approximately 10 feet wide, 20 feet long and was 

up to 17 inches thick. The ground at this location had been visually examined, but 

testing for loose ground had not been done. Significant amounts of loose ground 

had been scaled in the intersections east and west of the fall during the weeks 

prior to the accident, which was indicative of loose ground conditions in this area 

of the mine. The mine operator was aware of the loose ground conditions in this 

part of the mine and failed to provide a scaling bar for the surveying crew at this 

location for scaling the back and ribs. This is an uwarrantable failure to comply 

with a mandatory safety standard. (Emphasis supplied) 

1410 
The cited standard provides as follows: 

Where manual scaling is performed. a scaling bar shall be provided. The 

bar shall be of length and design that will allow the removal of loose material 

without exposing the person performing the work to injury. (Emphasis supplied) 

In a motion for summary decision pursuant to Commission Rule 67(b), 29 C.F.R. 2700, 

67(b), the Doe Run Company (Doe Run) sets forth the following background: 

I . Doe Run operates the Casteel Mine, an underground lead and zinc mine 

near Boss, Missouri. 

2. Mining is conducted by room and pillar mining by a process of drilling 

and shooting the faces and then loading the material into trucks for transport. 

3. Roof control at the mine involves scaling, primarily by using a 

mechanical scaler, and installation of roof bolts at appropriate locations. 

4. Headings and crosscuts are mined a maximum of 32 feet wide and 

typical heights ranged from 16-18 feet. 

5. Spot bolting involves the use of 6-foot long fully grouted resin bolts. 

Areas to be bolted are primarily brows and areas of concern identified by the 

miners. 

6. This case arose out of an accident at Doe Run's Casteel Mine on 

January 19, 1998. Surveyor Jeff Sadler and his assistant, Jason Wruck, were 

performing work in the 81 V20 section of the mine where three drifts or headings 

were advancing in a southeasterly direction. They performed duties detailing the 

mining progress in this area that morning in all three headings as well as areas 

back from these three faces. At the time of the accident they were in the process 

of setting up their instruments to survey in the middle heading. They had not 

performed their duties in this heading earlier in the shift because a mechanical 

scaler was operating at the face of that heading. 

7. While performing their survey duties in center of the three headings, a 

portion of the roof failed and fatally injured Mr. Sadler. 

* * * * 

9. MSHA conducted an investigation of the accident. A citation and two 

orders were issued pursuant to Section 104(d)(l) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 814(d)(l) .... Order No. 7859812 alleged a 

1411 
violation of 30 C.F.R. § 57.3202 and that the operator failed to provide a scaling 

bar for the surveying crew. This Motion applies only to Order No. 7859812. 

[References Omitted] 

In its Motion for Summary Decision, Doe Run argues that the cited standard requires the 

presence of scaling bars only when hand scaling is done. It further argues that the intent of the 

standard is not, as the order suggests, to require a scaling bar to be present at all times but rather 

to require the use of a scaling bar if hand scaling is done, as opposed to using some other 

instrument (such as a shovel, pick, drill steel or similar tool), the use of which might place the 

miner in danger. Doe Run maintains therefore that the standard is clearly intended only to insure 

that the proper tool is used if hand scaling is done, not to insure that one is available at all times. 

It concludes therefore that since it is undisputed that no manual scaling was performed in this 

case the requirement for the use of a scaling bar did not exist. In other words, it argues that a 

violation cannot exist unless a scaling bar is not available when hand scaling is actually 

performed. 

In support of its argument Doe Run cites the decision of Judge Fauver in Asarco Inc.. 

12 FMSHRC 2073, 2092-3(October1990), rev'd on other grounds, 14 FMSHRC 941 (June 

1992). In that case Judge Fauver vacated a similar citation, stating: 

These citations allege a violation of 30 C.F.R. § 57.3202, which provides: 

"Where manual scal.ing is performed, a scaling bar shall be provided. This bar 

shall be of a length and design that will allow the removal of loose material 

without exposing the person performing the work to injury." 

Citation No. 3253703 alleges that a "scaling bar of sufficient length to 

place the user out of danger of falling material was not provided" at the accident 

site where Mr. Norton was killed. ASARCO contends that§ 57.3202 does not 

apply because "Norton was not manually scaling, but rather scaling with a jumbo 

drill." ASARCO Br. 29. 

It is clear that Mr. Norton was not engaged in manual scaling, because he 

did not take a scaling bar to his work site. If he did any scaling at all, he probably 

tried to use the jumbo drill. Although the jumbo drill can be used to scale certain 

kinds of loose material, it is not designed as a scaler; a mechanical scaler or a 

scaling bar used on foot or on elevated equipment can reach, angle into, and take 

down loose material that cannot be taken down by a jumbo drill. Thus, it is not a 

safe practice for an operator to rely solely on the jumbo drill for scaling - -

because loose material could be missed. Nonetheless, since Mr. Norton was not 

engaged in manual scaling on the day of the accident,§ 57.3202 did not apply. 

Citation No. 3243703 will be vacated. 

Under Commission Rule 67(b), a summary decision may be granted if no genuine issue 

of material fact exists and ifthe moving party is entitled to summary decision as matter of law. 

1412 
Doe Run is here entitled to summary decision with respect to Order No. 7859812 because the 

undisputed facts do not establish that a violation existed under the language of the cited standard. 

I find the language of the standard at issue to be clear and unambiguous and its terms 

must therefore be enforced as written without further analysis. Utah Power & Light Co., 11 

FMSHRC 1926 (October 1989); Chevron USA. v. NRDC. 467 U.S. 837, 845 (1984), Kmart 

Coro. v. Cartier. Inc., 486 U.S. 281, 291 (1988). I conclude from the language of this standard, 

as did Judge Fauver in the Asarco case, that a suitable scaling bar must be provided only if 

manual scaling is performed. Since it is undisputed that no manual scaling was in fact here 

performed, the alleged absence of a suitable scaling bar is irrelevant. A violation exists only if 

manual scaling is done without a proper bar. Accordingly, there was no violation here of30 

C.F.R. § 57.3202. 

In reaching this conclusion, I have not disregarded the Secretary's argument that, while 

the language of the standard is clear and unambiguous, the standard should be read to require 

"miners to have a scaling bar present so that if loose material is observed while in the course of 

other duties, the miners would be more likely to take it down right then, rather than attempt to 

complete their assigned job duties and then go and find someone else to take care of the loose 

material." However, under this interpretation, the presence of a scaling bar would be mandated 

at all times. If this was the Secretary's intent, there would have been no need for' the standard to 

have been qualified, but rather the presence of a scaling bar at all times would have been 

mandated. 

Under the circumstances, Order No. 7859812 must be vacated. Contest Proceeding 

Docket No. CENT 98-83-RM is GRANTED. Civil Penalty Proceeding Docket No. CENT 98-

277-M is modified to delete Order No. 7859812 and the civil penalty proposed for the violation 

therein. 

Distribution: 

R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant St., 20th Floor, 

Pittsburgh, PA 15219-1410 (Certified Mail) 

Kristi Floyd, Esq., Office of the Solicitor, U.S. Dept. of Labor, 1999 Broadway, Suite 1600, 

Denver; CO 80202-5716 (Certified Mail) 

/me a 

1413 Ru.s. GOVERNMENT PRINTING OFRCE: 1999 • 4SU20/94412