SEPTEMBER 1996 

COM'.MISSIQN DECISIONS AND ORPERS 

09-09-96 Consolidation Coal Company 

09-12-96 Ambrosia Coal & Construction 

09-16-96 New Warwick Mining Company 

09-20-96 P .H . Blattner & Sons, Inc. 

09-24-96 Kinross DeLamar Mining Company 

09-24-96 Green Coal Company, Inc. 

09-30-96 Cannelton Industries, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-05-96 REB Enterprises Inc. 

09-05-96 Energy West Mining Company 

09-06-96 Wiser Construction 

09-11-96 Manalapan Mining Company 

09-12-96 L & J Energy Company, Inc. 

09-12-96 Nevada Cement Company 

09-20-96 Harold Holz v . Falkirk Mining Co. 

09-20-96 Ambrosia . coal & Construction 

WEVA 94-19 

PENN 93-233 

PENN 93-445 

WEST 93-123-M 

WEST 96-318-M 

KENT 96-349 

WEVA 94-381 

09-26-96 Raymond Ernst empl. by Lyon Sand & Gravel 

09-26-96 Sec . Labor on behalf of Marty Boden 

CENT 95-29-M 

WEST 95-258 

WEST 94-719-M 

KENT 93-646 

PENN 93-15 

WEST 95-537-M 

CENT 96-7-D 

PENN 93-233 

LAKE 96-103-M 

v. Lion Coal Company 

09-27-96 Jim Walter Resources, Inc. 

APMINISTBATI\TE LAW JQDGE ORPERS 

06-06-96 R0ger Christensen, empl. by Georgia 

08-23-96 R.J. Taggart Construction Co. 

08-26-96 Manalapan Mining Company, Inc. 

09-04-96 Newmont Gold Company 

09-09-96 Newmont Gold Company 

09-13-96 Newmont Gold Company 

09-16-96 Newmont Gold Company 

09-18-96 Newmont Gold Company 

09-17-96 National Quarries 

i 

WEST 95-417-D 

SE 96-112-R 

Pacific WEST 

WEST 

KENT 

WEST 

WEST 

WEST 

WEST 

WEST 

WEST 

96-98-M 

96-245-M 

96-252 

95-434-M 

95-434-M 

95-434-M 

95-434-M 

95-434-M 

96-204-M 

Pg. 1541 

Pg. 1552 

Pg. 1568 

Pg. 1580 

Pg. 1590 

Pg. 1594 

Pg. 1597 

Pg. 1603 

Pg. 1628 

Pg . 1641 

Pg . 1647 

Pg. 1650 

Pg. 1653 

Pg. 1658 

Pg. 1672 

Pg . 1674 

Pg. 1678 

Pg. 1687 

Pg . 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg . 

Pg. 

1693 

1697 

1699 

1703 

1709 

1717 

1726 

1729 

1734 

SEPTEMBER 1996 

Review was granted in the following cases <luring the month of September: 

Lion Mining Company v. Secretary of Labor, MSHA, Docket No. PENN 94-71-R. 

(Judge Hodgdon, July 26, 1996) 

Review was denied in the following cases during the month of September; 

Stillwater Mining Company v. Secretary of Labor, MSHA, Docket Nos. 

WEST 95-539-RM, etc. (Judge Amchan, July 31, 1996) 

Secretary of Labor, MSHA v. Vecellio & Grogan, Inc., Docket No. SE 96-9-M. 

(Chief Judge Merlin, August 1, 1996) 

Secretary of Labor, MSHA v. Primrose Coal Company, Docket Nos. PENN 96-125, 

etc. (Judge Melick, August 14, 1996) 

ii 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

September 9, 1996 

Docket No. WEV A 94-19 

CONSOLIDATION COAL COMPANY 

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1 

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" or "Act"). At issue is an order issued by the 

Department of Labor's Mine Safety and Health Administration ("MSHA") alleging that 

Consolidation Coal Company ("Consol") violated 30 C.F.R. § 75.340, which sets forth fire 

protection requirements applicable to underground water pumps.2 Administrative Law Judge 

1 Commissioner Holen participated in the consideration of this matter, but her term 

expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been 

designated to exercise the powers of the Commission. 

2 Section 75.340 provides, as pertinent: 

(a) Underground ... water pumps shall be located in 

noncombustible structures or areas or equipped with a fire 

suppression system . . . . This equipment also shall be--

( 1) Ventilated by intake air that is coursed into a return air 

course or to the surface and that is not used to ventilate working 

places; ... 

(b) This section does not apply to--

1541 
William Fauver found that Consol violated section 75.340(a), that neither of the exemptions 

contained in sections 75.340(b)(4) and (6) applied, that the violation resulted from unwarrantable 

failure, and that the violation was "serious." 17 FMSHRC 231, 234, 235 (February 1995) (ALJ). 

The Commission granted Consol's petition for discretionary review. For the reasons that follow, 

we affirm the judge. 

I. 

Factual and Procedtiral Back~round 

On April 7, 1993, Inspector Richard McDorman ~ssued an order under section 104(d)(2) 

of the Act, 30 U.S.C. § 814(d)(2), charging a violation of section 75.340(a) at Consol's 

Arkwright No. 1 Mine, an underground coal mine located in West Virginia. 17 FMSHRC at 

231; Gov't Exs. 1, 16. McDorman, accompanied by Mike Jackson of Consol's safety 

department, inspected the No. 68 water pump, an electrically-powered ThroMor pump, located in 

a crosscut in an intake escapeway on the 2 South longwall development section. 17 FMSHRC at 

231, 233; Tr. 26, 72-73. 

The pump's purpose was to remove water from a swag (low point) in an abandoned 

section of the mine adjacent to the 2 South section. 17 FMSHRC at 232; Tr. 74. After one to 

one-and-a-half weeks,, the water was removed from the swag. Tr. 80-81. Although Consol had 

made preparations to move the pump inby to the next swag as the section advanced, the absence 

of water on the section made the move unnecessary. Tr. 84. 

The pump had 7'h horsepower, and was 14 to 16 inches high, 18 to 20 inches wide, and 6 

feet Jong. 17 FMSHRC at 232; Tr. 73. 1t weighed 300 to 350 pounds, and was located about 20 

crosscuts from the working face and about 1800 feet from the loading point. Id. 

The water pump was not located in a noncombustible enclosure or equipped with a fire 

suppression system. 17 FMSHRC at 231. The air ventilating the water pump was not coursed 

into the return air entry; rather it was used to ventilate the working section. Id. at 231-32. For 

these conditions, McDorman issued the order charging the violation. Gov't Ex. 1. He 

designated the violation not significant and substantial. Id. The Secretary proposed a civil 

penalty assessment of $2,400. 

(4) Pumps located on or near the section and that are moved 

as the working section advances or retreats; [and] 

(6) Small portable pumps. 

1542 
At trial, Consol did not dispute that its pump failed to comply with the requirements of 

section 75.340(a). C. Posthearing Br. at 1-2. Rather, Consol argued to the judge that the pump 

was exempt from the regulation under either sections 75.340(b)(4) or (6). Id 

The judge concluded that Consol violated the regulation, determining that neither the 

(b)(4) nor the (b)(6) exemption applied. 17 FMSHRC at 233-35. The judge concluded that the 

(b)(4) exemption was inapplicable because the pump was about 1800 feet outby the loading point 

and did not advance with the working section.

3 Id at 234. He ruled that the (b)(6) exemption 

was inapplicable because the pump was not a "small portable pump." Id 

The judge also concluded that the viofation resulted from Consol's unwarrantable failure. 

Id at 234-35. He determined that it was not reasonable, without first inquiring into MSHA's 

enforcement position, for Consol to rely on the exemptions because the pump was "too heavy to 

lift to be considered a 'small portable pump,' and because it was not moved as the working 

section advanced or retreated." Id at 234. The judge also concluded that Consol's claims of 

exemption under (b)(4) and (6) appeared to be after-the-fact litigation positions, and that Consol 

had been operating without knowing that the safety standard governing pumps had changed five 

months before the violation. Id. at 234-35. 

Although the judge noted that Inspector McDorman designated the violation as not 

significant and substantial, he nevertheless concluded that the violation was serious. Id at 234. 

He found that in the event of a fire reaching the pump's fuel tank, the resulting smoke would 

have contaminated the intake entry and escapeway with a reasonable likelihood of serious injury. 

Id The judge assessed a civil penalty of $2,400. Id at 239. 

II. 

Disposition 

With respect to the (b )( 4) exemption, Consol argues the judge erred in finding that "the 

pump was not moved as the working section advances or retreats." C. Br. at 2. It asserts that the 

pump was removed from service, and that it was unnecessary to move the pump as the section 

advanced because of the absence of water on the advancing section. Id Concerning the (b)(6) 

exemption, Consol contends that the judge erred in finding that the pump was not a "small 

portable pump." Id. It submits the judge's reliance on the pump weight was material error. Id. 

at 2, 5-7. With respect to the judge's unwarrantable failure finding, Consol argues that its 

interpretation of the regulation was plausible and found support in the preamble and other MSHA 

documents disseminated to the industry. Id. at 2,, 5. With respect to the judge's finding that the 

violation was serious, Consol argues the pump did not have a fuel tank and was not in operating 

3 The judge inadvertently characterized this as the (b )( 6) exemption. 

1543 
condition at the time the order was issued, and thus there was no proof that a hazard existed. Id. 

at 2, 8, 9.4 

The Secretary argues that, with regard to the (b)(4) exemption, the pump was not located 

"at or near" the working section, and that the pump was not "moved as the working section 

advanc[ed]." S. Br. at 11-13. With regard to the (b)(6) exemption, the Secretary submits that the 

pump was not portable, and that weight is a legitimate factor in the determination of portability. 

Id. at 7-11. With respect to the judge's unwarrantable failure finding, the Secretary argues that it 

was not reasonable for Consol to have believed its pump qualified for an exemption. Id. at 15 

n.5, 16. He submits that Consol was aware that pumps such as the No. 68 ThroMor were 

required to be in compliance with the cited standard. Id. at 15. With respect to the judge's 

finding that the violation was serious, the Secretary emphasizes that the pump was in operating 

condition, and that there was one gallon of oil in the pump's motor. Id. at 7 n.2. 

A. Consol's Motion to Strike 

1. Ventilation Meeting Materials 

The Secretary's brief contained an attachment consisting of ventilation information 

meeting sign-in sheets 'a,nd notices and internal MSHA memoranda setting forth schedules for 

informational meetings on the Secretary's ventilation regulations. Consol seeks to strike these 

materials on the ground that they were not before the judge and because Consol did not have the 

opportunity of cross-examination with regard to the authenticity, veracity and relevance of the 

materials. C. Mot. to Strike at 1-3. 

The Commission has made clear that "the adjudication process is best served if the judge 

is first given the opportunity to admit and examine all the evidence before making his decision." 

Climax Molybdenum Co., 1FMSHRC1499, 1500 (October 1979). As the Commission has 

4 Consol also argues that the language of section 7 5 .340(b )( 4) and ( 6) failed to give fair 

warning of the Secretary's interpretation of the regulation, and that Consol therefore should not 

be held to have violated the regulation or engaged in unwarrantable conduct. C. Br. at 4, 5-6, 

7-8. However, Consol did not raise this argument in its PDR and the Commission did not direct 

sua sponte review of the issue. Under section l 13(d)(2)(A)(iii) of the Mine Act, 30 U.S.C. 

§ 823 (d)(2)(A)(iii), the Commission's review is limited to those questions raised by the PDR. 

See also 29 C.F.R. § 2700.?0(f) (1995); Chaney Creek Coal Corp. v. FMSHRC, 866 F.2d 1424, 

1429 & n.7 (D.C. Cir. 1989). Accordingly, we do not reach the notice argument. Furthermore, 

Consol did not raise this argument before the judge, another prerequisite for review under section 

113(d)(2)(A)(iii) of the Mine Act. The Commission has declined to address arguments not 

presented to the judge. E.g. , Beech Fork Processing, Inc., 14 FMSHRC 1316, 1316-17 (August 

1992). 

1544 
noted, "it is the obligation of parties to prove their case before the judge, not on review by 

reference to detailed material not presented to the judge and not subjeet to the rigors of crossexamination." Union Oil Co. of Cal., 11FMSHRC289, 301(March19~9) (emphasis in 

original). This rule of procedure under the Mine Act accords with settled principles of law 

limiting the record on review to that developed before the trier of fact. Id.; see also Fed. R. App. 

P. IO(a); United States v. Sanga, 967 F.2d 1332, 1335-36 n.2 (9th Cir. 1992). 

Because the materials were not part of the record before the judge, we grant Consol's 

motion to strike them, and consequently do not rely on them or on references to them contained 

in the Secretary's brief. 

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

("Webster's Third") 

Consol also asks the Commission to strike the references in the Secretary's brief to the 

definitions of "portable" and "mechanize" contained in Webster's Third. In his brief to the 

Commission and post-hearing brief to the judge, the Secretary relied on similar definitions in The 

American Heritage Dictionary (New College ed. 1980) and Webster's New World Dictionary 

(Second college edition, 1980). S. Br. at 1 O; S. Posthearing Br. at 11-12. The Co~ssion has 

relied on Webster's Third in its decisions. See, e.g., Peabody Coal Co., 18 FMSHRC 686, 690 

(May 1996); Ideal Cement Co., 12 FMSHRC 2409, 2410 n.2 (November 1990); Consolidation 

Coal Co., 11 FMSHRC 1935, 1938 (October 1989). The Commission has never held that a party 

is limited to citing only those authorities previously cited to the judge. 

Accordingly, we deny Consol's motion to strike the Secretary's references to definitions 

of "portable" and "mechanize" in Webster's Third. 

B. Violation of section 75.340(a) 

As Consol concedes that its pump did not comply with the requirements of section 

75.340(a), its challenge to the judge's determination that it violated section 75.340 centers on 

whether the juqge correctly concluded that the pump was not exempted from the mandatory 

standard under section 75.340(b)(4) and (b)(6). 

The Commission has recognized 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. Utah Power & Light Co., 1 l FMSHRC 1926, 

1930 (October 1989), citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837, 842-43 (1984). We think it clear that Consol's cited pump is not covered by the 

section 75.340(b)(4) and (6) exemptions and, accordingly, we resolve this case on the basis of the 

plain language of the regulation. 

1545 
1. The section 75.340CblC4) exemption 

Under section 75.340(b)(4), section 75.340(a) "does not apply to .. . [p)umps located on· 

or near the section and that are moved as the working section advances or retreats." 30 C.F .R. § 

75.340(b )( 4) (emphasis added). The judge concluded that this exemption did not apply to 

Consol's pump because "[t]he pump was about 1800 feet outby the loading point and did not 

advance with the working section." 17 FMSHRC at 234. 

The parties agree that "pumps located on or near the section" refers to the "working 

section." ~.Br. at 7-8; S. Br. at 11. The "working section" is the area "[f]rom the section 

loading point, being the tail piece and back to the working faces." Tr. 29; 30 C.F.R. § 75.2. 

Because the pump was about 1800 feet outby the loading point, we conclude that it was clearly 

not "on" the working section. We also think that, at a distance of 1800 feet outby the loading 

point, the pump was clearly not "near" the working section. Inspector McDorman testified that 

"near" would be two to three crosscuts outby the loading point. Tr. 40. He also suggested that 

"near" could possibly be four crosscuts outby the loading point, referring to 30 C.F.R. § 

75.214(a), which requires supplementary roof support materials to be within four crosscuts of 

each working section. Tr. 55. The pump was approximately 2000 feet or 20 crosscuts outby the 

working face, and apprO((imately 18 crosscuts outby the loading point. 17 FMSHRC at 232; Tr. 

26-27 (based on Inspectot McDorman's estimate of 100 feet from crosscut to crosscut). Even 

when the pump was closest to the working section, at the time of its installation about two weeks 

earlier, it was still more than "l,000 feet from the pump to the face" and "[a]pproximately 800 

feet" from the pump to the section loading point. Tr. 43, 62-63. Accordingly, substantial 

evidence supports the judge's conclusion that the pump was not located on or near the working 

section.5 17 FMSHRC at 234. 

As to the (b)(4) prerequisite the pump be "moved as the working section advances or 

retreats," the pump had been stationary throughout the entire two weeks subsequent to its 

installation, while the section advanced approximately 1,000 feet during this same period. 17 

FMSHRC at 234; Tr. 43 , 62-63. Inspector McDorman testified there was no indication the pump 

was to move with the working section, because the entire purpose of the pump's presence was to 

dewater the old works adjacent to the section. Tr. 61, 64. Mike Jackson of Consol's safety 

department testified that the pump would have been left in the location in which the inspector 

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

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

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

support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 

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

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

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

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

1546 
found it .. so long as it kept pumping water out of the adjacent area." Tr. 90. Based on this 

evidence, Consol did not meet the plain requirement of (b )( 4) that the pump be moved in order to 

qualify for the exemption. Jackson testified that Consol was entitled to th~ (b)(4) exemption 

because it intended to move the pump with the section as needed to pump out water, but since 

there was no need to pump out the water as the face moved, the pump remained where it was 

cited. Tr. 84-85. We agree with the judge that an intent to move the pump does not satisfy the 

prerequisite for the (b)(4) exemption. 17 FMSHRC at 234. 

Consol also argues that it had removed the pump from service for about one week prior to 

the citation, and therefore was not required to move it as the working section advanced. C. Br. at 

2. The judge found that the pump was energized and ready to operate. 17 FMSHRC at 232. 

Inspector McDorman's testimony supports the judge's finding. Tr. 21 , 43, 47. To the extent 

Consol's witness Jackson testified to the contrary, Tr. 79, and Consol's electrical examination 

reports indicated the pump was out of service, Gov't Ex. 4, the judge essentially made a 

credibility determination. A judge's credibility findings should not be overturned lightly and are 

entitled to great weight. In Re: Contests of Respirable Dust Sample Alteration Citations, 17 

FMSHRC 1819, 1878 (November 1995). We therefore decline to disturb the judge's finding that 

the pump had not been removed from service. 

In sum, we conclude that the judge correctly determined that Consol did not fall within 

the (b)(4) exemption. 

2. The section 75.340(b)(6) exemption 

Under section 75.340(b)(6), section 75.340(a) "does not apply to ... [s]mall portable 

pumps." We think the judge correctly concluded that, because of its 300 to 350 pounds of 

weight, Consol's pump was not a small portable pump within the meaning of section (b )( 6). See 

17 FMSHRC at 234. The preamble to the final rule indicates the Secretary's intention that such 

pumps be "easily relocated without the aid of mechanized equipment; capable of being moved 

frequently; and installed in such a manner to facilitate such movement." 57 Fed. Reg. 20,868, 

20,889 (May 15, 1992). This language is similar to the language describing "small portable 

pumps" in MSHA's Program Policy Letter P91-V-12 (effective July 17, 1991) ("PPL"), which 

was issued under section 75.340's predecessor standard, 30 C.F.R. 75.1105 (1992). Tr. 31-32; 

Gov't Ex. 2; C. Ex. 4. Under the PPL, "[p]ortable pumps are: small normally permissible or 

submersible pumps; easily relocated without the aid of mechanized equipment; capable of being 

moved frequently; and installed in such a manner to facilitate such movement." Gov't Ex. 2; C. 

Ex. 4. These definitions are consonant with the normally understood meaning of "portable," 

which is defined as "capable of being ... easily or conveniently transported" and "light or 

manageable enough to be readily moved." Webster 's Third at 1768. 

Substantial record evidence supports the judge's conclusion that Consol's pump was not . 

a small portable pump. Neither Consol nor the Secretary disputes the judge's finding concerning 

the weight of the pump. Tr. 26, 74. Inspector McDonnan indicated it would take five or six 

1547 
people with ropes to pull the pump. Tr. 38. As to the preamble's declaration that an exempt 

pump be ''easily relocated without the aid of mechanized equipment," McDorman testified that 

the pump was usually moved by a scoop, which is a mechanized piece of equipment. Tr. 37-38. 

Mike Jackson of Consol's safety department testified that if a scoop had been available, it would 

have been used to load the pump up and move it. Tr. 81. Jackson also testified that lacking a 

scoop, they would probably jack the pump up, put it on a four-wheel cart, move it down the 

heading, and reset it. Id. McDorman further stated that two to three people could move the 

pump on a small pulley cart with wheels. Tr. 59. Accordingly, McDorman testified that the 

pump was not a small portable pump in light of the description in the preamble to the final rule. 

Tr. 30, 31. Thus, the plain language of the exemption clearly makes it inapplicable to Consol's 

pump. 

We reject Consol's argument that weight is not a legitimate criterion for assessing the 

applicability of the exemption. Weight is an essential element in considering portability and 

comports with common usage, regulatory history and common sense. 

C. Unwarrantable failure 

Unwarrantable failure constitutes aggravated conduct exceeding ordinary negligence. 

Emery Mining Corp., 9· FMSHRC 1997, 2001 (December 1987). Unwarrantable failure is 

characterized by such conduct as "reckless disregard," intentional misconduct," "indifference" or 

a "serious lack ofreasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Corp., 13 

FMSHRC 189, 193-94 (February 1991). 

In Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February 1994), the Commission set 

forth the following factors among those to be considered in making an unwarrantable failure 

analysis: "the extensiveness of the violation, the length of time that the violative condition has 

existed, the operator's efforts to eliminate the violative condition, and whether an operator has 

been placed on notice that greater efforts are necessary for compliance." 

Substantial record evidence supports the judge's finding. As to the length oftime the 

violative condition existed, the inspector testified that he designated the violation unwarrantable 

failure because the pump had been in the same location for over two weeks. Tr. 42-44. Weekly 

electrical examinations had been conducted on March 25 and Apr~l 2. Tr. 44-45. As to the 

extensiveness of the violation, the pump did not have fireproof housing. Tr. 43. Consol did not 

meet the fire suppression requirements in lieu of the housing. Id. The pump was not ventilated 

properly, coursing the intake air into the return airyvay. Id. The pump was ready to be used. Tr. 

21. The record does not indicate compliance with any of the other alternatives in section 

75.340(a)(2) and (3). As to Consol's efforts to eliminate the violative condition, the record 

indicates Consol made none. 

The Commission has recognized that "if.an operator reasonably believes in good faith 

that the cited conduct is the safest method of compliance with applicable regulations, even if it is 

1548 
in error, such conduct is not aggravated conduct constituting more than ordinary negligence." 

Southern Ohio Coal Co., 13 FMSHRC 912, 919 (June 1991), citing Utah Power & Light Co., 12 

FMSHRC 965, 972 (May 1990) ). The operator's good faith belief must be reasonable under the 

circumstances. Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615-16 (August 1994). 

Consol argues that it reasonably relied upon an interpretation of the regulation that had 

definite plausibility and found support in the preamble and other MSHA documents that were 

disseminated to the industry. C. Br. at 2, 5. The (b)(4) and (b)(6) regulatory exemptions are 

clearly contrary to Consol's proffered interpretations. Further, Consol does not cite the 

Commission to specific language in the preamble or to other record evidence of the "other 

MSHA documents that were disseminated to the industry." Moreover, Consol had placed similar 

pumps located in other areas of the mine in fireproof enclosures. Tr. 90. Thus, we conclude that 

Consol's belief in the plausibility of its interpretation was unreasonable under the circumstances. 

Consol also argues that the judge erred in stating that it was not reasonable to assume 

"without first inquiring into MSHA' s enforcement position, that the pump qualified for an 

exemption." C. Br. at 2, 4, 5 (citing 17 FMSHRC at 234). Consol seems to suggest that the 

judge's finding of unwarrantable failure was significantly predicated on its failure to inquire first 

into MSHA' s enforcement position. In our view, the judge correctly concluded that it was not 

reasonable for Consol to have believed that the pump qualified for an exemption and that under 

such circumstances Consol should have inquired into MSHA's enforcement position. 

D. "Seriousness'' of the Violation 

Noting that the inspector cited the violation as not "significant and substantial," the judge 

concluded that the violation was serious. 17 FMSHRC at 234. He found that, in the event of a 

fire reaching the pump's fuel tank, the resulting smoke would have contaminated the intake entry 

and escapeway with a reasonable likelihood of serious injury. Id. 

The gravity penalty criterion under section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), is 

often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 FMSHRC 

287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal 

Co., 9 FMSHRC 673, 681 (April 1987). Although the judge did not specifically relate 

seriousness to gravity, or separately discuss the gravity criterion, he did assess the penalty based 

on "all of the criteria in section 1 lO(i)." 17 FMSHRC at 238. Accordingly, we infer that the 

penalty was based in part on the judge's conclusion that the violation was serious. 

' 

Consol argues that because the pump was out of service, substantial evidence does not 

support the judge's conclusion that the violation was serious. C. Br. at 8. As previously 

discussed, substantial evidence supports the judge's finding that the pump was not out of service. 

Consol also argues that the judge erred in finding that the pump had a fuel tank that posed a fire 

and smoke hazard C. Br. at 2, 8 (citing 17 FMSHRC at 234). Although the pump did not have a 

fuel tank, we think the judge's finding is harmless error. As the Secretary points out, the pump's 

1549 
motor did carry a gallon of flammable oil. S. Br. at 7 n.2; Tr. 83. In addition, the pump was not 

permissible. Tr. 29. The focus of the seriousness of the violation is not necessarily on the 

reasonable likelihood of serious injury, which is the focus of the S&S inquiry,. but rather on the 

effect of the hazard if it occurs. Cf Quin/and Coals, Inc., 9 FMSHRC 1614, 1622 n.11 

(September 1987) ("gravity" penalty criteria and special finding of S&S not identical although 

frequently based on same or similar factual circumstances). We conclude that, in light of the 

presence of combustible material, substantial evidence supports the judge's conclusion that the 

violation was serious. 

III. 

Conclusion 

For all of the foregoing reasons, we affirm the judge's decision. 

Marc Lincoln Marks, Commissioner 

1550 
Distribution: 

Elizabeth S. Chamberlin, Esq., 

Consol, Inc., 

1800 Washington Road 

Pittsburgh, PA 15241 

Jerald S. Feingold, Esq., 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge William Fauver 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike 

Skyline Towers 2 

Falls Church, VA 22041 

1551 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 12, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

AMBROSIA COAL & CONSTRUCTION 

COMPANY 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WAYNER. STEEN, Employed by 

AMBROSIA COAL & CONSTRUCTION 

COMPANY 

Docket No. PENN 93-233 

Docket No. PENN 94-15 

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1 

DECISION 

BY THE COMMISSION: 

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

1977, 30 U .S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is whether Administrative 

Law Judge William Fauver correctly determined that Ambrosia Coal & Construction Company 

1 Commissioner Holen participated in the consideration of this matter, but her tenn 

expired before issuance of this decision. Pursuant to section l 13(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 823( c ), this panel of three Commissioners has been 

designated to exercise the powers of the Commission. 

1552 
("Ambrosia") violated 30 C.F.R. § 77.404(a)2 when it operated a highlift with allegedly defective 

brakes. that the violation was significant and substantial (''S&S")3 and caused by Ambrosia's 

unwarrantable failure,4 and that a civil penalty should be assessed against Ambrosia's employee, 

Wayne Steen, under section 1 IO(c) of the Mine Act 5 for his alleged knowing authorization of the 

violation. 16 FMSHRC 2293 (November 1994) (ALJ). For the reasons that follow, we affirm 

the judge's determinations on these issues, vacate the judge's penalty assessments against 

Ambrosia and Steen, and remand for reassessment. 

I. 

Factual and Procedural Background 

Ambrosia operates the Ambrosia Tipple, a surface coal mine near Edinburg, 

Pennsylvania. On June 3, 1992, David Weakland, an inspector with the Department of Labor's 

Mine Safety and Health Administration ("MSHA"), and Charles Thomas, an inspector-trainee, 

inspected the mine. 16 FMSHRC at 2294. When they arrived, Inspector Weakland and Thomas 

went to the scale house, where they met Steen, and asked, "[W]ho is in charge here, who is the 

2 Section 77.404(a) provides: 

Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or 

equipment in unsafe operating condition shall be removed from 

service immediately. 

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

§ 814( d)( 1 ), 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 .... " 

4 The unwarrantable failure terminology is taken from section 104( d)( 1) of the Act, 

which establishes more severe sanctions for any violation that is caused by "an unwarrantable 

failure of [an] operator to comply with ... mandatory health or safety standards . . . . " 

5 Section 110( c) provides in part: 

. Whenever a corporate operator violates a mandatory health or 

safety standard . . . , any ... agent of such corporation who 

knowingly authorized, ordered, or carried out such 

violation ... shall be subject to the same civil penalties ... that 

may be imposed upon a person under subsections (a) and (d). 

30 U.S.C. § 820(c). 

1553 
foreman?" Id.; I-Tr. 27-28.6 Steen replied that he was the foreman and accompanied the 

inspectors on their inspection. 16 FMSHRC at 2294. 

After leaving the scale house, Thomas asked Inspector Weakland if he could inspect a 

highlift that he had observed having difficulty stopping as the inspectors drove into the mine. Id. 

Weakland agreed and directed Thomas to notify him ifthere were any problems. Id. Thomas 

approached the highlift, which was being operated by William Carr, an Ambrosia employee, and 

asked him about the condition of the brakes. Id. Carr replied that they were bad. Id.; I-Tr. 250. 

Thomas instructed Carr to position the highlift on a 30 to 40 degree incline and to engage the 

parking brake. 16 FMSHRC at 2294. The highlift rolled down the incline. Id Thomas then 

asked Carr to reposition the highlift or{ the incline and to apply the service brake. Id. The 

highlift again rolled down the incline. Id. Thomas called Inspector Weakland, who, 

accompanied by Steen, joined them. Id at 2294-95. 

Inspector Weakland asked Carr if there were any brakes on the highlift. Id. Carr 

responded. "[N]o, there isn't, [and] there hasn't been." I-Tr. 31 . Weakland instructed Carr to 

raise the bucket and test the service brake. 16 FMSHRC at 2294. The highlift drifted backwards 

on fairly level ground .. Id. When Carr engaged the parking brake upon the inspector's 

instructions, the highlift continued to drift. Id 

Weakland testified that, after the brakes were tested, Carr informed him that the highlift 

had no brakes for several weeks, and that he had notified the foreman, Steen, and recorded the 

bad brakes in a maintenance log. Id. at 2295. Inspector Weakland testified that be then asked 

Steen why he did not get the brakes repaired, and that Steen had replied that he had contacted the 

maintenance shop but that it was "like pulling teeth to get things fixed around here." Id. The 

inspectors continued inspecting the highlift and discovered the presence of an accumulation of 

combustible fuel around a pivot point and the absence of a seatbelt and fire extinguisher. Id. 

Inspector Weakland informed Steen that the highlift was unsafe to operate. Id. 

Inspector Weakland and Thomas returned to the scale house to look for the maintenance 

log, discuss the alleged violations, and prepare citations. Id. Thomas showed Inspector 

Weakland a log entitled, "Daily Work and Cost Record," which contained entries noting "bad 

brakes" for the highlift on May I, 4, 5, 6, 7, 8, 22, 26, 27, and 28, 1992. Id. Some entries were 

initialed "B.C." for Carr, and some were initialed "W.S." for Steen, indicating that they had 

operated the highlift on those dates. Id. 

Weakland issued an order pursuant to section J 04(d)(l) of the Act, alleging an S&S and 

unwarrantable violation of 30 C.F .R. § 77 .1605(b ), which was later modified to allege a violation 

of section 77.404(a). I-Tr. 35-36. The face of the citation indicated that it was served to "Wayne 

6 The hearing of this case is transcribed in two volumes. The first volume, covering June 

28, 1994, shall be referred to as "I-Tr." and the second. covering June 29, as "II-Tr." 

1554 
Steen, Foreman." Gov't Ex. 4. Steen did not object to being identified as a foreman on the 

citation. 16 FMSHRC at 2300. Weakland and Thomas then conducted a close-out conference 

with Steen and Carmen Ambrosia, the owner of the mine. I-Tr. 41-42. 

Mr. Ambrosia stated that he wanted to observe the brake demonstration. l 6 FMSHRC at 

2296. The highlift was placed on an incline and Carr was instructed to separately engage the 

parking brake and the service brake. Id The highlift rolled down the incline without hesitation 

after each test. Id. Mr. Ambrosia told Steen that they could not stay in business operating 

equipment in such condition. Id 

The highlift was then removed from service. Id. Later that day, Timothy Yager, a 

mechanic for Ambrosia, adjusted the brakes. II-Tr. 156-57. The citation was terminated after the 

brakes held the highlift on an incline during a subsequent test. I-Tr. 44-45; II-Tr. 161. 

After the inspectors left the mine, Carr admitted to Steen that he had made all of the 

entries in the highlift maintenance log. 16 FMSHRC at 2296-97. Steen stated, "I guess that's 

okay." Id. at 2297. Carr testified that, shortly after he told Steen, he also told Carmen Shick, 

Ambrosia's vice-preside~t in charge of operations, that he had made the entries. Id. Shick 

commented that, "that wasn't a very good idea," but took no action to change the entries. Id. On 

approximately June 6, Steen falsified the official MSHA examination record by adding entries 

noting the highlift's "bad brakes" for May 30, June 2, and 3, 1992, and stating "repairing 

highlift" for June 4. Id. ; II-Tr. 20. 

On December 29. 1992, MSHA Special Investigator John Savine conducted an 

investigation to determine whether Steen should be held individually liable under section l lO(c) 

of the Mine Act for knowingly authorizing Ambrosia's violation. 16 FMSHRC at 2297. Based 

on that investigation, the Secretary proposed that a penalty in the amount of $3,500 be assessed 

against Steen. Id. at 2303. The Secretary also proposed that a civil penalty in the amount of 

$7,000 be assessed against Ambrosia for its alleged violation of section 77.404(a). Id. 

Ambrosia and Steen challenged the enforcement actions and the matters were 

consolidated and proceeded to hearing before Judge Fauver.7 

The judge found that Ambrosia had violated section 77.404(a). Id. at 2298. He reasoned 

that the lack of operable brakes on the highlift amounted to an unsafe condition, and that the 

operator had failed to remove the equipment from service. Id The judge also determined that 

the violation was S&S because the inoperable brakes posed a number of discrete safety hazards. 

7 The judge visited the mine between the first and second day of the hearing. II-Tr. I 0. 

He advised the parties that any observations that he made could be included in his findings, and 

that the parties could propose findings based upon what they considered to be reasonable 

observations. Id. at 10-11. 

1555 
Id. at 2299. He found the violation unwarrantable because the operator, through Steen, its 

foreman and mine examiner, knew that the brakes were bad and failed to repair them or remove 

the highlift from service. Id. The judge further concluded that, as a foreman, Steen was a 

corporate "agent" under section 110( c) of the Mine Act, and that he had knowingly authorized 

Ambrosia's violation because he had actual knowledge of the bad brakes for at least five days 

and had failed to repair them or remove the equipment. Id. at 2300, 2302. Finally, the judge 

assessed civil penalties of$11,000 and $4.000 against Ambrosia and Steen, respectively. Id. at 

2306. He based the penalties, in part, upon his finding that Shick, who he found to be a 

corporate agent, participated in the falsification of the maintenance log, and that the deliberate 

cover-up by Steen and Shick increased the need for deterrence provided by higher penalties. Id. 

at 2305-06. 

Ambrosia and Steen each filed petitions for discretionary review challenging the judge's 

determinations, which the Commission granted. 

II. 

Disposition 

\ 

A. Violation of Section 77.404Ca) 

Ambrosia argues substantial evidence does not support the judge's finding that it violated 

section 77.404(a) because the highlift had sufficient brakes to perform its functions. A. Br. at 19-

26. It emphasizes that Carr testified he was not concerned for his safety when operating the 

highlift because he was working on level ground and loading in first gear, and that he could load 

trucks without any brakes by "slip[ping] it in reverse and back[ing] up." Id. at 21-23; I-Tr. 333. 

In addition, Ambrosia relies on testimony of its mechanic that the brakes required only 

adjustment, rather than repair or replacement of parts, and that the adjustment was not extensive. 

A. Br. at 23-24; II-Tr. 164-65. The Secretary responds that substantial evidence supports the 

judge's determination because the highlift had no brakes and that such a condition would be 

recognized as unsafe by a reasonably prudent person. S. Br. at 12-19. 

As the Commission has previously r~cognized, section 77.404(a) imposes two duties: (1) 

to maintain equipment in safe operating condition; and (2) to remove unsafe equ~pment from 

service immediately. Peabody Coal Co., 1 FMSHRC 1494, 1495 (October 1979). The 

"[d]erogation of either duty violates the regulation." Id. Substantial evidence supports the 

judge's determination that Ambrosia derogated both duties.8 

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

administrative law judge's factual determinatio_ns. 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., 11 FMSHRC 2159, 2163 

1556 
Equipment is in unsafe operating condition under section 77.404(a) when a reasonably 

prudent person familiar with the factual circumstances surrounding the allegedly hazardous 

condition, including any facts peculiar to the mining industry' would recognize a hazard 

warranting corrective action. See Alabama By-Products Corp., 4 FMSHRC 2128, 2129 

(December 1982) (involving identical standard applicable to underground coal mines). Here, the 

evidence is undisputed that when the parking brake and service brake were tested on fairly level 

ground, the highlift drifted backwards. I-Tr. 34-35, 187. In addition, the highlift rolled without 

hesitation down an incline when either brake was engaged. I-Tr. 44, 171, 173; II-Tr. 28-29. 

Upon observing the brake demonstration on the incline, Ambrosia's owner, recognizing a hazard 

warranting corrective action, told Steen, "we can't stay in business like this/' and "we can't 

operate equipment like this." I-Tr. 176. 

The evidence relied upon by Ambrosia does not, in fact, establish that the highlift was in 

safe operating condition for the functions it performed. Carr stated that the highlift "had a little 

bit of brakes on it to get by with," and that the brakes were only "good enough to stop me a little 

bit on the level." I-Tr. 332, 355. He acknowledged that the brakes were not "good enough to 

stop me on a ramp" and that he sometimes operated on the ramp. I-Tr. 355. Carr stated that 

when he was on the ramp, in order to stop the highlift, he "went right around and parked it." 

I-Tr. 355. Thomas 'testified that when he observed Carr operating the highlift to load a truck, 

Carr was having difficulty stopping it. I-Tr. 162-64. Moreover, Carr admitted that he complained about the condition of the brakes to Steen days before the inspection, at least by May 

27th or 28th. I-Tr. 329, 332, 336, 353-54. In addition, Carr's statement that he did not need 

brakes when loading does not establish that the need for brakes would not arise. Inspector 

Weakland testified that, without brakes, the highlift could collide with a truck driver or another 

pedestrian, such as a mechanic or supervisor walking across the yard, or with a truck if the 

highlift operator misjudged distances when loading it. I-Tr. 45-47. Moreover, regardless of the 

extent of the brake adjustment required, the brakes were inoperable on the incline and on a fairly 

level surface. where the highlift traveled during normal mining operations .. 

Therefore, substantial evidence supports the judge's determination that the highlift was 

not maintained in safe operating condition. Given the undisputed evidence that Ambrosia failed 

to remove the highlift from service (16 FMSHRC at 2298), we affirm the judge's finding that 

Ambrosia violated section 77.404(a). 

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

we do not lightly overturn a judge's factual findings and credibility resolutions, neither are we 

bound to affirm such determinations if only slight or dubious evidence is present to support 

them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); 

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

the settled principle that, in reviewing the whole record, an appellate tribunal must also consider 

anything in the record that "fairly detracts" from the weight of the evidence that supports a 

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

1557 
B. Si~njficant and Substantial 

Ambrosia argues that the judge erred in finding its alleged violation of section 77.404(a) 

was S&S because the Secretary failed to establish that it was reasonably likely operating the 

highlift would result in injury. A. Br. at 26-30. It submits there was little likelihood of a 

collision between the highlift and a truck being loaded, or with a pedestrian or structure, because 

Carr never dropped the highlift's bucket~ the highlift was operated at low speed, the highlift 

could reverse direction, and the brakes were sufficient to stop the highlift on level ground on the 

day of the inspection.9 Id. at 27-28. Ambrosia also argues that it was unlikely the highlift would 

roll on to the adjacent highway because the highway was 40 to 50 yards away from the operation 

of the tipple. Id. at 28. The Secretary responds that the judge correctly detennined the violation 

was S&S and that the evidence relied upon by Ambrosia established only that an accident had 

not yet occurred. S. Br. at 22-23. 

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 (April 1981 ). 

In Mathies Coal Co. , 6 FMSHRC I (January 1984), the Commission further explained: 

' 

In orde o establish that a violation of a mandatory safety standard is 

significant and substantial under National Gypsum, the Secretary of Labor must 

prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete 

safety hazard -- that is, a measure of danger to safety -- contributed to by the 

violation; (3) a reasonable likelihood that the hazard contributed to will result in 

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

reasonably serious nature. 

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

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

Mathies criteria). 

9 Ambrosia also argues that collision was'unlikely because the highlift was noisy, which 

would warn a pedestrian of its approach, the highlift could stop a distance of eight to ten feet 

moving forward or ten to twelve feet moving backward by dropping its bucket, and the highlift 

could be turned. A. Br. at 27-28. As support for these assertions, Ambrosia cites the visit that 

the judge made to the mine. Because the judg~ did not include his observations from that visit 

in his decision, and no evidence was introduced at the hearing establishing those allegations, they 

are not part of the official record. 30 U.S.C. § 823(d)(2)(C); see II-Tr. 10-11. 

1558 
At issue is whether the judge correctly determined that the Secretary established the third 

Mathies factor. 10 In arguing that injury was not reasonably likely to occur, Ambrosia relies on 

evidence relating to conditions or practices existing at the time of the inspection. An evaluation 

of the reasonable likelihood of injury must be made assuming continued normal mining 

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

Taking into consideration continued normal mining conditions, substantial evidence 

supports the judge's determination that the third Mathies factor was established. Evidence was 

undisputed that the brakes were ineffective on the ramp and fairly level ground, where the 

highlift traveled during normal operations. I-Tr. 34-35, 43-44, 171 , 176-77, 188, 355, 387. 

Inspector Weakland testified that, without brakes, the highlift could collide with a truck driver or 

other pedestrian in the yard and that, during the inspection, he had observed a truck driver get out 

of his truck. I-Tr. 46, 52. In addition, he stated that the highlift could collide with a truck it was 

loading if the highlift operator misjudged distances. I-Tr. 45. Thomas testified that, if the 

highlift collided with anything in the tipple area, such as coal trucks, telephone poles, or the fuel 

storage area, the highlift operator could be thrown through the windshield or against the steering 

wheel. I-Tr. 178. 

Carr's statement that he never dropped the bucket to stop the highlift does not preclude 

the possibility that another operator might do so or that an opportunity would arise when he 

would find it necessary to do so. 11 Inspector Weakland testified that, if the highlift operator 

dropped the bucket to stop the highlift, the bucket could collide with the ·side of the truck, 

resulting in injuries or fatalities. I-Tr. 45-46. In any event, Thomas stated that shifting the 

highlift into reverse while it is moving forward, the method of braking used by Carr (I-Tr. 333), 

would result in a jerking motion and that the operator could be thrown through the windshield, 

out of the vehicle, or against the steering wheel. I-Tr. 179-80. The hazard to the highlift 

operator would be greater given that the seatbelt was missing from the highlift. I-Tr. 41 . 

Furthermore, although the highway was 40 to 50 yards away from coal piles at the tipple, 

Thomas stated that he believed that the highlift was used in all areas of the mine. I-Tr. 180. He 

estimated that the highlift weighed 15 to 20 tons, and that it would be heavier and more difficult 

to stop if it were carrying a load. I-Tr. 181. In addition, there were no berms or guardrails 

separating the tipple area from the highway, and the highway received a great deal of traffic. ITr. 180-81. 

10 Although Ambrosia also argues that the second Mathies element was not established, 

its discussion of that issue relates to the third Mathies element. See A. Br. 26-28. 

11 Ambrosia conceded as much in arguing that there was little likelihood of injury in part 

because the highlift "could stop in a distance of eight to ten feet moving forwards or ten to 

twelve feet moving backwards by means of dropping the bucket." A. Br. at 28. See n.9. 

1559 
Thus, the evidence relied upon by Ambrosia does not establish that injury was not 

reasonably likely to occur. Rather, it establishes only that an accident had not yet occurred, 

which is not dispositive of a finding that the third Mathies factor had not been established. Blue 

Bayou Sand and Gravel, Inc., 18 FMSHRC 853, 857 (June 1996). Accordingly, we affirm the 

judge's S&S determination. 

C. Unwarrantable Failure 

In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined 

that unwarrantable failure is aggravate? conduct constituting more than ordinary negligence. Id. 

at 2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," 

"intentional misconduct," "indifference" or a "serious lack ofreasonable care." Id. at 2003-04; 

Rochester & Pittsburgh Coal Corp., 13 FMSHRC 189, 193-94 (February 1991) ("R&P"); see 

also Buck Creek Coal. Inc. v. FMSHRC, 52 F.3d at 136 (approving Commission's unwarrantable 

failure test). 

I . Whether Steen's Conduct is Imputable to Ambrosia 

The conduct of an "agent" of an operator may be imputed to the operator for 

unwarrantable failure purposes. R&P, 13 FMSHRC at 194. Section 3(e) of the Mine Act defines 

"agent" as "any person charged with responsibility for the operation of all or part of a ... mine or 

the supervision of the miners in a ... mine .... " 30 U.S.C. § 802(e). 

Ambrosia argues that Steen was not an "agent" and that his conduct may not be imputed 

to it for unwarrantable failure purposes. A. Br. at 17-18. Steen argues that he was not an agent 

because he was not a foreman and that, rather, he admitted to only being the person in charge at 

the mine. St. Br. at 3, 5-10. He submits that he did not possess the actual authority customarily 

exercised by a foreman, including the ability to recommend hiring or firing, discipline 

employees, change work schedules, adjust pay or terms of employment, or make contracts or 

decisions regarding the sale of coal. Id. at 13-14, 20. The Secretary responds that, as a foreman, 

Steen was an agent whose conduct was imputable to Ambrosia. S. Br. at 25 n.14, 29-39. 

Steen's assertion that his job title was not ''foreman" and that there were some 

supervisory functions that he did not perform is not dispositive of whether he was an agent 

within the meaning of section 3( e ). In considering whether an employee is an operator's agent, 

the Commission has "relied, not upon the job title or the qualifications of the miner, but upon his 

function, [and whether it] was crucial to the mine"s operation and involved a level of 

responsibility normally delegated to management personnel." US. Coal, Inc., 17 FMSHRC 

1684, 1688 (October 1995). Here, Steen accompanied the inspectors and attended the MSHA 

close-out conference as Ambrosia's representative. I-Tr. 27, 175. In the close-out conference, 

Weakland and Thomas informed Steen that ifqe had any disagreement with the citations, he had 

ten days to request a manager's conference. I-Tr. 175. MSHA Inspector Thomas Sellers, who 

had inspected the mine on July 2, 1991, and March 16, 1992, testified that Steen also acted as the 

1560 
company representative during those inspections. I-Tr. 280-81. Steen was paid a salary and did 

not receive additional pay for working more than 40 hours per week, while rank-and-file miners 

were paid hourly and received time-and-a-half for working overtime. 16 FMSHRC at 2301. 

Steen, as a certified mine examiner, made required daily examinations at the mine and was 

responsible for entering his findings in an MSHA examination book. I-Tr. 382; II-Tr. 18-19. 

In addition, Steen gave work orders to abate citations. When Inspector Weakland 

informed Steen that he was going to issue citations for the lack of seatbelt or fire extinguisher 

and the accumulation of combustible materials, Steen instructed Carr to remove the combustible 

materials and to get a fire extinguisher. I-Tr. 172. Inspector Weakland observed Steen direct 

Carr to place a "no smoking" sign on a fuel tank and to place a guard on a tail roller to abate 

other violations cited during the inspection. I-Tr. 138. MSHA Inspector Sellers testified that 

during the inspections he conducted, Steen had also called the maintenance shop to explain 

necessary repairs. I-Tr. 284-85. Thus, as the person "in charge" at the mine, the functions 

performed by Steen were crucial to the mine' s operation and demonstrated an exercise of 

responsibility normally delegated to management personnel. 

Furthermore, the manner in which Steen was treated by those with whom he worked 

demonstrates an exercise of responsibility normally delegated to management personnel. Carr 

informed Inspector Weakland that he had reported the bad brakes to Steen, essentially 

acknowledging Steen's position ofresponsibility. 16 FMSHRC at 2301. When the inspector 

asked Steen why he did not get the brakes repaired, Steen did not reply that it was not his job to 

remove equipment from service and arrange for repairs but, rather, that it was difficult to get 

repairs made. Id. Mr. Ambrosia apparently believed that Steen held a position of responsibility 

for overseeing conditions at the mine, exclaiming to Steen, "we can't stay in business like this," 

and "we can't operate equipment like this," after observing the brake demonstration. Id. 

Therefore, we conclude that substantial evidence supports the judge's determination that 

Steen was an agent whose conduct was imputable to Ambrosia. 12 

12 We also find evidence that Steen held himself out as the employee iμ charge at the 

mine and signed official MSHA documents as the mine foreman relevant by analogy to common 

law agency principles. See R&P, 13 FMSHRC at 195 (fmding analogous support in common 

law agency principles). At common law, a principal is liable for the acts of an agent that are 

apparently within the agent's authority and which the principal permits the agent to exercise. 

3 Am Jur 2d Agency§§ 78, 79 (1986). A "principal may vest his agent with apparent authority 

to perform an act by omission as well as commission, and such authority is implied where the 

principal passively permits the agent to appear to a third person to have authority to act on his 

behalf." Id. at§ 79. There is no record evidence that Ambrosia took any actions to demonstrate 

that Steen did not. in fact, possess authority as the person in charge at the mine. 

1561 
2. Whether Ambrosia Engaged in Aggravated Conduct 

Substantial evidence supports the judge's detennination that Ambrosia, through Steen, 

engaged in aggravated conduct that amounted to more than ordinary negligence when it failed to 

maintain the highlift in safe operating condition or remove the highlift from service. Carr 

admitted that he informed Steen of the condition of the brakes on May 27 or 28. I-Tr. 329, 334, 

336, 358. Steen conceded that, if Carr stated that he told him about the brake condition, Carr did. 

I-Tr. 375. Steen maintains that during the end of May, however, he believed the brakes needed 

adjustment, rather than that they were completely ineffective. I-Tr. 387; II-Tr. 32. The judge's 

discrediting of that evidence is supported by substantial evidence. On the morning of the 

inspection, Steen observed Carr loading with the highlift. II-Tr. 12-13. On that day, Carr was 

observed having difficulty stopping the highlift by Inspector Thomas. I-Tr. 162-63. When 

tested, the brakes failed to stop the highlift on the ramp and on fairly level ground. I-Tr. 37, 162, 

164, 171. Steen himself admittedly falsified the inspection manual to state "bad brakes" on May 

30, June 2 and 3. 13 II-Tr. 20. Moreover, on the day of the inspection, when Inspector Weakland 

asked Steen why he had not had the brakes repaired, Steen did not react with surprise that the 

brakes required repair. Rather, he stated that it was "like pulling teeth to get things fixed around 

here." I-Tr. 37: 16 FMSHRC at 2299. Therefore, substantial evidence supports the judge's . \ 

determination that Steen knew the brakes were bad at least five or six working days before the 

inspection. 

In addition, although he had been informed about the condition of the brakes, Steen failed 

to remove the highlift from service or insure that the brakes were repaired. Inspector Weakland 

testified that Steen informed him that he called the maintenance foreman when Carr told him 

about the brakes, but that the foreman did not send anybody to repair the brakes. I-Tr. 67-68. 

The judge's finding that Steen, in fact, had not contacted maintenance (16 FMSHRC at 2295), is 

supported by substantial evidence given the maintenance foreman's testimony that he had not 

been notified before the inspection that the brakes on the highlift required repair or adjustment. 

11-Tr. 167-68. In any event, even if Steen had contacted the maintenance shop, he failed to 

remove the equipment from service until repairs were made. Accordingly, we affirm the judge's 

determination that Ambrosia's violation of section 77.404(a) resulted from its unwarrantable 

failure through imputation of the conduct of its agent, Steen. 

D. Steen's Liability Under Section I lOCc) 

Steen argues that the judge erred in concluding that he was a foreman and, therefore, an 

agent subject to liability under section 11 O(c) of the Act. St. Br. at 2-3. The Secretary relies 

upon the same evidence establishing Ambrosia's aggravated conduct to assert that Steen 

kn~wingly authorized Ambrosia's violation of section 77.404(a) in violation of section 11 O(c). 

S. Br. at 39-40. 

13 Steen testified that he mistakenly failed to make an entry for June 1. II-Tr. 23. 

1562 
Section 110( c) of the Mine Act provides that, whenever a corporate operator violates a 

mandatory safety standard, any agent of the corporate operator who "knowingly authorized, 

ordered, or carried out such violation" shall be subject to individual civil penalty. We conclude 

substantial evidence supports the judge's determination that Steen was liable under section 

llO(c). 

First, Steen's position as the salaried person in charge at the mine who represented the 

operator during inspections, close-out conferences and in receiving citations, and who gave 

abatement instructions, was crucial to the mine's functioning and involved a level of 

responsibility normally delegated to management personnel. See US Coal, 17 FMSHRC at 

1688. Therefore, Steen was an "agent" within the meaning of section 3(e) of the Act. 14 

Furthermore. substantial evidence supports the judge's determination that Steen 

knowingly authorized Ambrosia's violation of section 77.404(a). Steen had actual knowledge of 

the brake condition for at least five or six working days before the inspection but failed to have 

the brakes repaired or the highlift removed from service. Steen's assertion that he believed the 

brakes only needed adjustment and not that they were completely ineffective is unpersuasive 

given the Commission's recognition that, in order to prove section 110( c) liability, the Secretary 

"must prove only that an individual knowingly acted, not that the individual knowingly violated 

the law." WarrenSteenConstr., Inc., 14FMSHRC 1125, 1131(July1992)(citing United States 

v. International Minerals & Chem. Corp., 402 U.S. 558, 563 (1971 )). Steen knew that Carr was 

operating the highlift after complaining about the condition of the brakes, and observed him 

loading on the day of the inspection when the brakes were ineffective on the ramp and fairly 

level ground. In addition, Steen defended his failure to repair the brakes, not with surprise that 

the brakes were ineffective, but by stating that getting repairs made was difficult. 16 FMSHRC 

at 2295. Accordingly, we affirm the judge's determination that Steen was liable under section 

l lO(c) of the Act. 

14 The judge found that Steen's status as a certified mine examiner was relevant to his 

status as an agent for unwarrantable failure purposes, but not for purposes of Steen's liability 

under section 110( c ). 16 FMSHRC at 2299 n. l, 2300 n.2. The judge reasoned that the Secretary 

failed to allege in his penalty proposal or prehearing statements that he considered Steen an agent 

under section 110( c) because he was a certified mine examiner and that, accordingly, Steen had 

been deprived of timely notice of the theory. Id. at 2300 n.2. In arguing on review that Steen 

was an agent subject to liability under section 110( c ), the Secretary relies upon evidence that 

Steen was a certified mine examiner. S. Br. at 34. Even excluding Steen's function as a certified 

mine examiner. we conclude that substantial evidence supports the judge's determination that 

Steen was an agent for section 110( c) purposes. 

1563 
E. Civil penalties 

Ambrosia argues that the judge erred in assessing its penalty by failing to find good faith 

in achieving rapid compliance and by increasing the penalty from that proposed by the Secretary 

based on his determination that Shick, who he found to be a corporate agent, participated in the 

falsification of the maintenance log. A. Br. at 15-17. It argues that the increase in penalty was 

unreasonable for the additional reason that the Secretary had proposed a penalty of $7,000 based 

on a contention that the falsified log entries had, in fact, been genuine and provided notice of the 

brake problem. Id. at 16. Steen argues that the penalty assessed against him was excessive. St. 

Br. at 24-26. The Secretary agrees that the judge erred in assessing both penalties. S. Br. at 41-

46. 

The Commission's judges are accorded broad discretion in assessing civil penalties 

under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (April 1986). The 

Commission has cautioned, however, 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. 15 Id. (citing Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (March 1983), aff'd, 736 F.2d 

1147 (7th Cir. 1984)). '1p 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 Corp., 6 FMSHRC 1423, 1432 (June 1984). The 

judge must make findings of fact on the criteria that "not only provide the operator with the 

required notice as to the basis upon which it is being assessed a particular penalty, but also 

provide the Commission and the courts ... with the necessary foundation upon which to base a 

determination as to whether the penalties assessed by the judge are appropriate, excessive, or 

insufficient." Sellersburg, 5 FMSHRC at 292-93. 

15 Section 11 O(i) sets forth six criteria for assessment of penalties under the Act. 

The Commission shall have authority to assess all ·civil 

penalties provided in [the Act]. In assessing civil monetary 

penalties, the Commission shall consider the operator's history of 

previous violations, the appropriateness of such penalty to the size 

of the business of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated good 

faith of the person charged in att~mpting to achieve rapid 

compliance after notification of a violation. 

30 U.S.C. § 820(i). 

1564 
Contrary to Ambrosia's assertions, the judge did not err in analyzing the penalty criterion 

of good faith in achieving rapid compliance. As the judge found, the violation of section 

77.404(a) was abated as soon as the inspector removed the highlift from service. 16 FMSHRC at 

2305. Because the operator had no opportunity to show its good faith in rapidly achieving 

compliance, the judge properly neither increased nor decreased the penalty based upon his 

consideration of the factor. 

In addition, we reject Ambrosia's argument that the assessment is erroneous because the 

penalty proposal was based upon the mistaken conclusion that the maintenance log entries were 

genuine and provided notice to the operator. There is no indication that the judge erroneously 

concluded he was bound by the Secretary's proposed penalty or that he relied upon the mistaken 

conclusion that the log entries provided notice. See 29 C.F.R. § 2700.30(b) (Judges and the 

Commission are not bound by the penalty proposal in assessing penalty). In fact, the judge 

expressly found that the entries were false and provided no notice. 16 FMSHRC at 2304. 

The judge abused his discretion, however, in increasing Ambrosia's penalty for 

deterrence purposes based on his finding that Shick was a corporate agent who participated in the 

record falsification. Th~ Secretary had not made any allegations of wrongdoing or initiated 

enforcement proceedings against Shick. The judge, who is not an authorized representative of 

the Secretary, cannot make findings that create new liability. Mettiki Coal Corp., 13 FMSHRC 

760, 764 (May 1991 ). 16 Moreover, although deterring future violations is an important purpose 

of civil penalties. 17 deterrence is achieved through the assessment of a penalty based on the six 

statutory penalty criteria. See Dolese Bros.Co., 16 FMSHRC 689, 695 (April 1994) (a judge's 

consideration is limited to the statutory penalty criteria). Deterrence is not a separate component 

used to adjust a penalty amount after the statutory criteria have been considered. 

In addition, the judge erred in assessing Steen's penalty. The judge failed to set forth 

findings applying the statutory criteria to Steen as an individual. Without such findings. Steen 

does not have sufficient notice of the basis of his penalty, and the Commission does not have the 

necessary foundation to determine whether the penalty was appropriate. Sellersburg, 5 

FMSHRC at 292-93. 

16 We hereby vacate any references in the judge's decision to alleged wrongdoing by 

Shick. 

17 As recognized in the legislative history of the Mine Act, the purpose of civil penalties 

is to "convinc[e] operators to comply with the Act's requirements." S. Rep. No. 181, 95th 

Cong., 1st Sess. 45 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human 

Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 633 (1978). See also Consolidation Coal Co., 14 FMSHRC 956, 965 (June 1992) 

(recognizing importance of civil penalties as deterrence). 

1565 
Accordingly, we vacate the penalties assessed against Ambrosia and Steen and remand 

for reassessment consistent with this decision. 

III. 

Conclusion 

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

section 77.404(a), that the violation was S&S and resulted from Ambrosia's unwarrantable 

failure, and that Steen is liable under section 11 O(c) of the Mine Act for knowingly authorizing 

the violation. We vacate the penalties assessed against Ambrosia and Steen and remand for 

reassessment. 

Marc Lincoln Marks, Commissioner 

es C. Riley, Commissione~-· - ·· ·-· 

1566 
Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

William P. Getty, Esq. 

Hugh F. McGough, Esq. 

Meyer, Unkovic & Scott 

1300 Oliver Building 

Pittsburgh, PA 15222 

Frank G. Verterano, Esq. 

Verterano & Manolis 

2622 Wilmington Rd. 

New Castle, PA 16105 

Administrative Law Judge William Fauver 

Federal Mine Safety and Health Review Commission 

Office of the Administrative Law Judge 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

1567 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

V. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 16, 1996 

Docket Nos. PENN 93-445 

PENN 94-54 

NEW WARWICK MINING COMPANY 

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1 

DECISION 

' BY: Jordan, Chairman; and Riley, Commissioner 

These civil penalty proceedings, arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), raise the issues of whether 

Administrative Law Judge Arthur Amchan properly concluded that a violation of 30 C.F.R. 

§ 75.4002 by New Warwick Mining Company ("New Warwick") resulted from its unwarrantable 

failure to comply with the standard, whether there was no violation of 30 C.F.R. § 75.360(b),3 

1 Commissioner Holen participated in the consideration of this matter, but her term 

expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been 

designated to exercise the powers of the Commission. 

2 Section 75.400 states: 

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 electric equipment therein. 

3 Section 75.360(b) states, in part: 

The person conducting the preshift examination shall 

examine for hazardous conditions .... 

1568 
and whether five violations of 30 C.F .R. § 77 .2024 were not significant and substantial ("S&S"). 

16 FMSHRC 2451 (December 1994) (ALJ). The Commission granted cross-petitions for 

discretionary review challenging these determinations. For the reasons that follow, we affirm in 

part, vacate in part, and remand. s 

I. 

Factual and Procedural Background 

A. Docket No. PENN 94-54 

New Warwick operates the Warwick Mine, an underground coal mine, in Greene County, 

Pennsylvania. On July 26-28, 1993, Robert Santee, an inspector from the Department of Labor's 

Mine Safety and Health Administration ("MSHA"), inspected the 3 left (012) longwall section of 

the mine. 16 FMSHRC at 2452. During this period, New Warwick was mining through a rock 

binder in the coal seam, which generated increased amounts of dust. Id. at 2453. In addition, as 

the longwall shields advanced, they dug into the mine bottom, "rolling" it onto the shield toes.6 

Tr. 110-11. On July 26, Santee found float coal dust accumulations ranging up to 114-inch deep 

on and behind the longwall shields and issued a citation for violation of section 75.400. 16 

FMSHRC at 2452; Gov't Ex. 4. He informed the mine superintendent and longwall coordinator 

that the hose attached to the longwall shear was inadequate to prevent dust from accumulating 

and that washdown hoses needed to be installed across the pan line. 16 FMSHRC at 2452; Tr. 

23, 79, 160. 

On July 27, Santee discovered an accumulation of loose fine coal on a pump car at the 

end of the longwall supply track and issued another citation for violation of section 75.400. 16 

FMSHRC at 2452; Gov't Ex. 5. He also observed coal dust accumulations on and behind the 

longwall shields, but he did not issue a citation because cleanup was being performed. 16 

4 Section 77 .202 states: 

Coal dust in the air of, or in, or on the surfaces of, 

structures, enclosures, or other facilities shall not be allowed to 

exist or accumulate in dangerous amounts . 

. 5 Chairman Jordan and Commissioners Marks and Riley vote to affirm the judge's 

determinations that the violation of section 75.400 resulted from unwarrantable failure and that 

there was no violation of section 75.360(b). Chairman Jordan and Commissioner Riley vote to 

·vacate the judge's determination that the violations of section 77 .202 were not S&S and remand 

for further consideration. Commissioner Marks would reverse the judge's S&S determination. 

6 A shield toe is the horizontal, bottom part of the shield. Tr. 26. 

1569 
FMSHRC 2452. Santee discussed with the mine safety director the need for continued efforts to 

prevent violations of section 75.400 at the longwall. Id; Tr .. 25, 28. 

On July 28, Michael Smith, the longwall foreman on the njght shift7 at Warwick Mine, 

conducted a preshift examination of the mine from l :00 to 3:00 a.m. Tr. 21, 128. When Smith 

examined the 3 left (012) longwall section, he did not note any hazardous accumulations of loose 

coal or coal dust. Tr. 21, 132. The longwall broke down at approximately 3:30 a.m. Tr. 21. At 

5: 10 a.m., Inspector Santee, accompanied by Barry Radolec, an inspector trainee, inspected the 

longwall section. 16 FMSHRC at 2452; Tr. 90. Santee found float coal dust accumulations 

ranging up to 114-inch deep on the longwall shields. 16 FMSHRC at 2452; Gov't Ex. 1. He also 

found float coal dust accumulations on cables, loose coal accumulations ranging up to 6-inches 

deep behind the longwall shields, and loose coal mixed with slate rock up to 22-inches deep on 

some of the shield toes. Id 

Based on the foregoing, Inspector Santee issued New Warwick Order No. 3655504, 

pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), alleging an unwarrantable 

and S&S violation of section 75.400 for failure to clean up the accumulations. 16 FMSHRC at 

2452-53; Gov't Ex. 'l· In addition, Santee issued New Warwick Order No. 3655505, pursuant to 

section 104(d)(2), alleging an unwarrantable and S&S violation of section 75.360(b) for failure 

to note the accumulations in the preshift examination record book. 16 FMSHRC at 2453; Gov't 

Ex. 2. 

The Secretary of Labor subsequently proposed civil penalty assessments of $4, 100 and 

$3,800 for the alleged violations of sections 75.400 and 75.360(b), respectively. New Warwick 

challenged the proposed assessments, contending that it had not violated the standards, the 

violations were not S&S, and the violations were not caused by its unwarrantable failure. 

Following an evidentiary hearing, the judge concluded that New Warwick had violated 

section 75.400, that the violation was not S&S, but that it had resulted from New Warwick's 

unwarrantable failure to comply with the standard. 16 FMSHRC at 2452-56. The judge based 

the unwarrantable failure determination on his findings that, although the accumulations "had not 

existed for a long time," the accumulations were extensive, New Warwick should have been on 

"heightened alert" that such accumulations could occur, and New Warwick had not immediately 

commenced cleanup of the accumulations. Id. at 2455 & n.5. He assessed a civil penalty of 

$2,000. id. at 2455-56. 

Further, the judge concluded that New Warwick had not violated section 75.360(b). Id. at 

2456. He reasoned that the order was based on the assumption that the accumulations that served 

as ·the basis for the violation of section 75.400 were present during the preshift examination. Id. 

7 The night shift worked from 4:00 p.m. to 4:00 a.m. and the day shift worked from 4:00 

a.m. to 4:00 p.m. 16 FMSHRC at 2456; Tr. 28. 

1570 
The judge credited the testimony of Smith, who conducted the preshift examination between 

1 :00 and 3 :00 a.m., that he had not observed any hazardous accumulations of ~al or coal dust. 

Id. Recognizing that the longwall broke down at 3 :30 a.m., the judge concluded that the 

accumulations observed by the inspector "may not have been present or may not have been as 

extensive" during the preshift examination. Id. Therefore, the judge determined that the preshift 

examination "may not have been inadequate" and he vacated the order. Id 

The Commission subsequently granted cross-petitions for discretionary review filed by 

New Warwick, challenging the judge's determination that the violation of section 75.400 was 

unwarrantable, and by the Secretary, cl:)allenging the judge's determination that there was no 

violation of section 75.360(b ). 

B. Docket No. PENN 93-445 

On May 19, 1993, MSHA Inspector Frank Terrett inspected six overland conveyor belt 

transfer stations at Warwick Mine.8 16 FMSHRC at 2459. Inside five of the transfer stations, 

Terrett found coal dust accumulations ranging from 1/8-inch to 4-inches deep on top of motors, 

inside electrical boxes, around belt rollers, and on the floors. Iil. ; Tr. 187, 189-90, 194-95, 208-

09. Accordin'gly, he issued New Warwick five citations, pursuant to section 104(a) of the Mine 

Act, 30 U.S.C. § 814(a), alleging violations of section 77.202 for failure to clean up the 

accumulations. 16 FMSHRC at 2459; Gov't Exs. 17-21. Subsequently, Inspector Terrett 

modified the citations to designate the violations as S&S. 16 FMSHRC at 2460; Tr. 202, 215-

17; Gov't Exs. 17-21. 

The Secretary proposed civil penalty assessments totaling $4,060 for the alleged 

violations. New Warwick challenged the proposed assessments, contending that it had not 

violated the standard and the violations were not S&S. 

Following an evidentiary hearing, the judge concluded that New Warwick had violated 

section 77.202 but that the violations were not S&S. 16 FMSHRC at 2459-61. He noted that the 

Secretary's theory that the violations were S&S was based largely on the need for an employee to 

jump from the second floor of the transfer station to escape a fire resulting from the 

accumulations. Id at 2461. The judge found that each transfer station had three exits on the first 

floor and two or three exits on the second floor and that an employee would not have to jump 

from the second floor to escape a fire. Id. Therefore, he concluded that the Secretary had failed 

8 The overland conveyor belt travels over fields from the supplier to the river. Tr. 204. 

The transfer stations house motor drives that operate contiguous sections of the conveyor belt. 

16 FMSHRC at 2459; Tr. 187. Each transfer station is a 20-feet-square, 2-story metal building 

with a concrete first floor and a grate-type second floor. Tr. 204, 227, 229. 

1571 
to establish a reasonable likelihood of serious injury. Id. The judge assessed civil penalties 

totaling $1,800. Id at 2462. 

The Commission subsequently granted the petition for discretionary review filed by the 

Secretary, challenging the judge's determination that the violations of section 77.202 were not 

S&S. 

II. 

Disposition 

A. Docket No. PENN 94-54 

1. Unwarrantable Failure 

New Warwick argues substantial evidence9 does not support the judge's finding that the 

section 75.400 accumulation violation was unwarrantable. It asserts that the accumulations had 

not existed for a long time and were not extensive, it was not on heightened alert for 

accumulations, cleantip surpassing the requirements of its cleanup plan had been performed by 

the night shift, and the area was going to be hosed down on the first pass by the day shift. N.W. 

Br. at 4-9. The Secretary responds that substantial evidence supports the judge's finding. He 

asserts that the accumulations were extensive and took at least one shift to amass, New Warwick 

was on notice that accumulations violated the standard, no cleanup had been performed by the 

night shift, and New Warwick's compliance with its cleanup plan does not shield it from an 

unwarrantable failure finding. S. Resp. Br. at 3-10. 

The unwarrantable failure terminology is taken from section 104( d) of the Mine Act, 30 

U.S.C. § 814(d), and refers to more serious conduct by an operator in colUlection with a 

violation. In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission 

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

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

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

support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 

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

we do not lightly overturn a judge's factual findings and credibility resolutions, neither are we 

bound to affirm such determinations if only slight or dubious evidence is present to support 

them. See, e.g., K.rispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984); 

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

the settled principle that, in reviewing the whole record, an appellate tribunal must also consider 

anything in the record that "fairly detracts" from the weight of the evidence that supports a 

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

1572 
determined that unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as "reckless 

disregard," "intentional misconduct," "indifference" or a "serious lack ofreasonable care." Id. at 

2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991); see also 

Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's 

unwarrantable failure test)'. The Commission "has recognized that a number of factors are 

relevant in determining whether a violation is the result of an operator's unwarrantable failure, 

such as the extensiveness of the violation, the length of time that the violative condition has 

existed, the operator's efforts to eliminate the violative condition, and whether an operator has 

been placed on notice that greater efforts are necessary for compliance." Mullins & Sons Coal 

Co., 16 FMSHRC 192, 195 (February 1994), citing Peabody Coal Co., 14 FMSHRC 1258, 1261 . 

(August 1992). 

Preliminarily, the judge's finding that the accumulations "had not existed for a long time" 

is supported by substantial evidence. The record indicates the accumulations resulted in part 

from a reduced amount of water applied on the last pass of the longwall shear on the night shift. 

16 FMSHRC at 2455. Paul Wells, New Warwick's longwall foreman on the day shift, testified 

that the night shift h~d "cut out," i.e., turned around, at the no. 1 shield -- a process which 

produces a large amount of water mist and dust. Id. at 2454; Tr. 107-08, 118, 120. He explained 

that, during this process the crew usually reduces the amount of water to avoid getting wet from 

mist caught in the air traveling down the face. Tr. 118. Wells further stated that water sprays on 

the shear were suppressing dust from the headgate to the No. 40 shield during the last 10 or 15 

minutes of the shift, but that a miner probably did not manually hose down the shields. Tr. 118-

19, 121-2~. In addition, the judge noted that, contrary to Inspector Santee's and Radolec's 

testimony that it appeared the longwall section had not been cleaned recently and the 

accumulations had collected over a full shift, Foreman Smith testified that cleanup had occurred 

during the night shift. 16 FMSHRC at 2453, 2455 n.5, citing Tr. 128-30 (longwall shields were 

hosed down "usually [on] every pass" and two crew members did nothing but shovel). 

Although the accumulations had not existed for a long period of time, substantial 

evidence supports the judge's determination that New Warwick's violation was aggravated given 

the extensiveness of the accumulations, the fact that New Warwick had been placed on notice 

that greater efforts were necessary for compliance with the standard, and New Warwick's failure 

to immediately clean up the accumulations. 

First, substantial evidence supports the judge's finding that the accumulations were 

extensive. 16 FMSHRC at 2455. Float coal dust had accumulated up to 1/4-inch deep on 

surfaces of the longwall shields, headgate, stageloader, cables, and cable trough, covering 

energized parts that supply power to the longwall shear. Tr. 18-19, 56, 92-94; Gov't Ex. 1. In 

addition, loose coal had accumulated up to 6-inches deep behind the longwall shields and loose 

coal mixed with slate rock had accumulated up to 22-inches deep on some of the shield toes. Tr. 

92-93; Gov't Ex. 1. The accumulations were deposited along the entire longwall section, which 

was 123 shields in length. Tr. 98-99, l 08: Gov't Ex. 1. 

1573 
Second, the judge· s finding that New Warn·ick ''should have been on a 'heightened alert' 

that such accumulations could occur" is also supported by substantial evidence. 16 FMSHRC at 

2455, citing Drummond Co., 13 FMSHRC 1362, 1368 (September 1991 ). The Commission has 

recognized that repeated similar violations may be relevant to an unwarrantable failure 

determination to the extent that they place an operator on notice that greater efforts are necessary 

for compliance with a standard. Peabody, 14 FMSHRC at 1263-64; Drummond, 13 FMSHRC at 

1363-64, 1368. The record indicates that, during the previous inspection period (April 1 to June 

30, 1993), MSHA had found 16 violations of section 75.400 at Warwick. Gov't Ex. 1. . 

Moreover, twice during the two days preceding issuance of the instant order, Inspector Santee 

informed New Warwick that similar accumulations were not permitted. In fact, the mine 

superintendent assured Inspector Santee that preventive measures would be taken seriously 

because MSHA could use it as a basis for an unwarrantable failure finding. Tr. 24. 

Finally, substantial evidence supports the judge's finding that New Warwick failed to 

take sufficient measures to clean up the accumulations. 16 FMSHRC at 2455 & n.5. In Utah 

Power and Light Co., 11 FMSHRC 1926. 1933 (October 1989), the Commission held that the 

operator did not demonstrate unwarrantable failure because before and during the inspection, 

miners were shoveling the accumulations and attempting to abate the condition. Here. New 

Warwick was not engaged in cleanup when Inspector Santee observed the accumulations. Tr. 22, 

108-09, 117. 128-30. Further. New Warwick had not yet implemented Inspector Santee's 

recommendation that additional washdown hoses be installed to facilitate cleanup of the 

accumulations. Tr. 79. Given New Warwick's knowledge that the reduction of water would lead 

to accumulations and that it had been warned during both of the past two days not to allow 

accumulations to exist, its reliance on the night shift's cleanup efforts or on the anticipated 

efforts of the day shift was not reasonable. See Cyprus Plateau Mining Corp., 16 FMSHRC 

1610, 1615 (August 1994) (to support a conclusion that an operator's conduct was not 

unwarrantable, an operator's good faith belief that its conduct was the safest method of 

compliance must be reasonable). 

Based on consideration of the above factors, we conclude that substantial evidence 

supports the judge's determination that New Warwick demonstrated aggravated conduct by 

failing to clean up the accumulations. Accordingly, we affirm the judge·s holding. 

2. Violation of Section 75.360Cb) 

The Secretary argues that substantial evidence does not support the judge's finding that 

there was no violation of the section 75.360(b) presh1ft examination requirement. He asserts that 

the accumulations were extensive and took at least one shift to amass. the accumulations likely 

existed during the preshift examination, and the judge's finding that there was no preshift 

violation does not accord with his finding that the related accumulation violation was 

unwarrantable. S. Br. at 6-9. New Warwick respqnds that substantial evidence supports the 

judge's finding. N.W. Resp. Br. for Dckt. No. PENN 94-54 at 5-10. 

1574 
In concluding that the accumulations may not have existed or been as extensive during 

the preshift examination, the judge credited Foreman Smith's testimony that ~e had not observed 

any hazardous conditions over Inspector Santee's assumption that the accumulations had 

collected over a full shift. 16 FMSHRC at 2456. We find no basis to reverse the judge's 

credibility determination. The record indicates that the preshift examination of the mine was 

conducted between 1 :00 and 3 :00 a.m. (Tr. 21) but does not specify the time at which the 

longwall section was examined. Smith related that mining conditions were adverse and, as soon 

as the shields moved, they looked as though they had not been cleaned. Tr. 132. He asserted 

that the accumulations of float dust in the trough could have amassed in one pass of the longwall 

shear, which normally takes 30 to 45 minutes. Tr. 86-87, 111-12, 132-33. Thus, the longwall 

section could have been examined early during the preshift examination and one or more passes 

of the longwall could have occurred before the longwall broke down at 3:30 a.m. Therefore, the 

judge's conclusion that the accumulations may not have existed or been as extensive at the time 

the longwall section was examined is supported by substantial evidence. Accordingly, we affirm 

the judge's holding that New Warwick did not violate section 75.360(b). '0 

B. Docket No. PENN 93-445 

1. Si~nificant and Substantial 

The Secretary argues substantial evidence does not support the judge's finding that the 

section 77.202 accumulation violations in the transfer stations were not S&S. He asserts the 

judge ignored testimony that an explosion, rather than a fire alone, was reasonably likely to occur 

and result in serious injury. S. Br. at 9-13 . New Warwick responds that substantial evidence 

supports the judge's finding. It contends that the inspector improperly modified the citations, a 

fire and subsequent explosion were not likely. and an explosion has never occurred in a transfer 

station. N.W. Resp. Br. for Dckt. No. PENN 93-445 at 6-12. 

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 '/ Gypsum Co., 3 

FMSHRC 822, 825 (April 1981 ). In Mathies Coal Co., 6 FMSHRC 1 (January 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 

10 We reject the Secretary's argument that the judge's determination that there was no 

preshift violation is inconsistent with his finding that the violation of section 75.400 was 

aggravated. Although the accumulations were extensive, they could have amassed following 

examination of the Jongwall section. 

1575 
Secretary of Labor must prove: (1) the underlying violation of a 

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

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

reasonable likelihood that the hazard contributed to will result in 

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

will be of a reasonably serious nature. 

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

Power, Inc. v. Secretary of Labor, 861 F.2d 99, 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 (August 1985). When 

examining whether an explosion or ignition is reasonably likely to occur, it is appropriate to 

consider whether a " confluence of factors" exists to create such a likelihood. Texasgulf. Inc., I 0 

FMSHRC 498, 501 (April 1988); see also Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184 

(February 1991 ). 

We agree with the Secretary that the judge erred by failing to address the hazard of 

explosion. The record indicates that Inspector Terrett was concerned about both the hazards of 

fire, which could result fr.9m deposited coal dust. and explosion, which could result from 

suspended coal dust. Tr. 192, 195, 201-02. 210-14, 219, 222. Terrett acknowledged that, ifthere 

were only a fire, an employee would not have difficulty getting out of the transfer station because 

he would have warning. Tr. 222-23. He also testified, however, that if the fire were 

instantaneous and created a dust explosion, an employee would have difficulty escaping and 

could be "killed right there." Tr. 195, 223. In addition to his conc~m that an employee might 

have to jump off of the second floor to escape a fire or explosion, Terrett was concerned that an 

employee could be burned, inhale smoke or byproducts of the belts, or might not be able to get 

out of the building. Tr. 201 , 202-03, 213. 

New Warwick's argument that there is no evidence an explosion has ever occurred in a 

transfer station is not dispositive of an S&S finding. Buffalo Crushed Stone, Inc. , 16 FMSHRC 

2043, 2046 (October 1994); Ozark-Mahoning Co., 8 FMSHRC 190, 192 (February 1986). 

Furthermore, the record does not suggest that Inspector Terrett acted inappropriately by 

modifying the citations. Terrett testified he modified the S&S designations after realizing the 

seriousness of the violations. Tr. 202-03, 215. He explained that, as a new inspector, he was 

inexperienced with "putting [citations] together" and writing modifications. Tr. 216. Terrett 

stated that he conferred with his supervisor to ensur~ that the modifications were correct. Tr. 

216-17. 

Because the judge failed to evaluate evidence or make findings and conclusions regarding 

the hazard of explosion, we vacate the judge's determination that the violations were not S&S 

and remand the matter for further consideration. 

1576 
III. 

Conclusion 

For the foregoing reasons, we affinn the judge's detenninations that the violation of 

section 75.400 resulted from unwarrantable failure and that there was no violation of section 

75.360(b). In addition, we vacate the judge's determination that the violations of section 77.202 

were not S&S and remand for further consideration. 

c.~ 

1577 
Commissioner Marks, concurring in part and dissenting in part: 

I concur in this decision, with the exception of the disposition regarding the violations of 

30 C.F.R. § 77.202. In view of the record evidence, I conclude that the violations were S&S and 

therefore I would reverse the judge's contrary conclusion. 

Marc Lincoln Marks, Commissioner 

1578 
Distribution 

Joseph A. Yuhas, Esq. 

1809 Chestnut A venue 

P.O. Box 25 

Barnesboro, PA 15714 

Jerold Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1579 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

\I. 

D.H. BLATTNER & SONS, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

September 20, 1996 

Docket Nos. WEST 93-123-M 

WEST 93-286-M 

WEST 94-5-RM 

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1 

DECISION 

BY THE COMMISSION~ 

In these consoHdated contest and civil penalty proceedings, arising under the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act'' or "Act"), 

Administrative Law Judge John J. Morris determined that D.H. Blattner & Sons, Inc. 

("Blattner"), an independent contractor, was required to file an operator legal identity report 

under 30 C.F.R. § 41.20.2 16 FMSHRC 1762 (August 1994) (ALJ). For the reasons set forth 

below, we affirm his decision. 

1 Commissioner Holen participated in the consideration of this matter, but her term 

expired before issuance of this decision. Pursuant to section l 13(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been 

designated to exercise the powers of the Commission. 

2 Section 41.20, entitled "Legal identity report," provides, in part: 

Each operator of a coal or other mine shall file notification 

of legal identit~ and every change thereof with the appropriate 

district manager of the Mine Safety and Health Administration by 

properly completing, mailing, or otherwise delivering form 2000-7 

"legal identity report" which shall be provided by the Mine Safety 

and Health Administration for this purpose. 

1580 
I. 

factual and Procedural Background 

Blattner is a construction company engaged in a variety of projects, including highway 

construction and mining. 16 FMSHRC at 1763-64. These cases involve three citations issued to 

Blattner for failure to file a legal identity repo11 at three separate mining operations: the Yankee 

Project and Aurora Partnership Mines in Nevada and the Van Stone Mine in Washington State. 

Id. at 1763. Prior to the issuance of the citations. Blattner obtained a contractor identification 

number pursuant to 30 C.f'.R. § 45.3,3 which it used on all of its jobs at mines. Id. at 1764. 

A. Yankee Project 

The Yankee Project Mine is an open pit, heap leach gold mine~ owned by USMX, Inc. 

("'USMX"). I 6 FM SH RC at 1764. Prior to the citation at issue. USMX had a mine 

identification number, No. 26-02190, covering the entire operation. Tr. 51; R. Ex. I. The mine 

contains a pit area, a crushing and leaching operation adjacent to the pit, and a mill area that is 

5 miles away. Tr. 46, 49-51; R. Ex. 10. On October I 7. 1991, Blattner entered into a contract 

with USMX to perform. services in the pit, including drilling, blasting, loading, hauling and 

dumping ore and waste material. 16 FMSHRC at 1764; J. Ex. 1, at 14- 16. Blattner retained a 

subcontractor, ICJ Explosives ("ICI"), to perform drilling and blasting work. 16 FMSHRC at 

1764. 

3 Section 45.3, entitled "Identification of independent contractors," provides, in part: 

(a) Any independent contractor may obtain a permanent MSHA 

identification number. To obtain an identification number, an 

independent contractor shall submit to the District Manager in 

writing the following information: 

(I) The trade name and business address of the independent 

contractor; 

(2) An address of record for service of documents; 

(3) A telephone number at which the independent contractor can 

be contacted during regular business hours; and 

(4) The estimated annual hours worked on mine prope11y .... 

4 Heap leaching is a process to extract gold by use of cyanide carbon solution. Tr. 27. 

1581 
In September 1992, Steven A. Cain, an inspector with the Department of Labor's Mine 

Safety and Health Administration ("MSHA"), inspected the Yankee Project Mine and learned 

that Blattner was extracting ore from the pit and supplying it to USMX to process. Id. at 1771. 

He discovered from the Safety Director at USMX, Ken Gubler. that USMX basically had nothing 

to do with Blattner's safety program and that Blattner was responsible for the safety of its 

employees and those ofICI in the pit. Id.; Tr. 29-30. Cain consulted with MSHA Supervisory 

Mine Inspector Paul Belanger. Tr. 30-31, 207. Belanger telephoned Yankee Project and learned 

from USMX Manager of Operations Jim Kentopp that USMX was responsible for the mill and 

the crushing but had no involvement in the daily supervision of Blattner's operation in the pit. 

Tr. 214-15. 

After consultation with other MSHA officials. Belanger determined that Blattner needed 

to submit a legal identity report. Tr. 31. 207-08; Deposition of Vernon Gomez. MSHA 

Administrator of Metal/Nonmetal Mines dated April 30, 1993. at 95 (incorporated into the record 

at Tr. 556). When Blattner refused to comply, Inspector Cain issued a citation on September 14. 

1992, for failure to file such a report. Tr. 31 ~ Gov't Ex. I. Under protest. Blattner completed a 

legal identity report and the citation was terminated. Gov't Ex. 1. As a result, two legal identity 

numbers, one covering the pit where Blattner operated and the other covering the milling and 

crushing operations run by USMX, were assigned to the project. Tr. 59-61; Gov't Ex. I; R. 

Ex. 1. 

B. Van Stone 

The Van Stone Mine is an open pit lead and zinc mine owned by Equinox Resources, Inc. 

("Equinox"). 16 FMSHRC at 1765, 1772. On November 19, 1990, Blattner contracted with 

Equinox to perform services such as blasting, loading and hauling of ore and waste materials. 16 

FMSHRC at 1765; J. Ex. 2, at 2. Blattner retained a subcontractor, Roundup Powder, for drilling 

and blasting. 16 FMSHRC at 1765. 

After an MSHA staff meeting where the subject ofBlattner's activities was discussed, 

MSHA Supervisory Inspector Collin Galloway asked an inspector to investigate Blattner's 

responsibilities at the mine. Id at 1772. The inspector reported that Blattner was in charge of 

mining operations in the pit and that Equinox was running the mill. Id. 

Inspector Galloway informed Blattner that, because it was responsible for safety in the 

pit, it needed to file a legal identity report. Id. When Blattner refused, he issued a citation. Id. 

Blattner completed a legal identity report and the citation was terminated. Gov't Ex. 2. As a 

result of Blattner's filing, the Van Stone Mine was assigned two separate mine identity numbers, 

one for the pit and one for the mill. Tr. 137-38, 149. 

1582 
C. Aurora Partnership 

The Aurora Partnership Mine is an open pit, heap leach gold and silver mine owned by 

·the Aurora Partnership ("Aurora"). 16 FMSHRC at 1766; Tr. 165. It consists of a pit, where the 

ore is extracted, and. approximately a mile away. a mill for processing gold and silver from the 

ore. Tr. 165-66, 176. On June 16, 1993, Blattner entered into a contract with Aurora to provide 

services in the pit, including drilling, blasting. crushing, loading and hauling ore and non-ore 

material, and preparing and maintaining haul roads and pit walls. 16 FMSHRC at 1766; J. Ex. 3, 

at 4. Blattner subcontracted the drilling and blasting work to JCI and the crushing to Fisher 

Industries. 16 FMSHRC at 1766. 

Blattner took over the mining activities from Lost Dutchman Construction ("Lost 

Dutchman"). which previously had submitted a form 2000-7 and was assigned a legal identity 

number. 16 FMSHRC at 1772. Aurora was assigned a separate legal identity number for the 

milling and leaching operation. Tr. 177. 

On an inspection of Aurora in June 1993, Inspector Robert Morley learned that Blattner 

might be replacing Lost Dutchman. Tr. 168-71. He informed Blattner's job superintendent, Bob 

Cameron, that Blattner would need to fill out a report and assume Lost Dutchman's legal identity 

number. Tr. 171 . Morley left a report for Blattner to complete. Tr. 172. On July 29, 1993, 

Larry Turner, Senior Mine Engineer for Aurora, notified MSHA in writing that Blattner would 

serve as the prime contractor for mining activity. 16 FM SH RC at 1772. Cameron also informed 

Morley that, as of August 2, Blattner would be mining the property. Tr. 171. On September 2, 

Morley visited the mine, learned that Blattner had not filed a report, and issued Blattner a 

citation. 16 FMSHRC at 1772; Tr. 171; Gov't Ex. 3. Under protest, Blattner completed a legal 

identity report and assumed Lost Dutchman's·identity number. Tr. 177, 193-94; Gov't Ex. 3. 

Blattner filed a notice of contest disputing the citation. 

The three proceedings were consolidated for trial. The only issue before the judge was 

whether Blattner was required to file a legal identity report under section 41.20. 16 FMSHRC at 

1763. After an evidentiary hearing, the judge found that Blattner "exercised direct supervision 

and control over the ore extraction process and the health and safety of the miners so involved" at 

the three mines. Id at 1771. In concluding that Blattner qualified as an operator obliged to 

complete a legal identity report, the judge reasoned that "requiring Blattner to comply with 

[section 41.20] directly promotes the safety goals of the Act." Id at 1768, 177 l. The judge 

affirmed the Secretary's proposed penalties of $50 for each of the two civil penalty proceedings 

and dismissed Blattner's contest. Id at 1777. 

1583 

. . 

. · 
II. 

Disposition 

Blattner does not dispute that it is an operator under the Act. B. Br. at 14. Rather, 

relying on MSHA 's Enforcement Policy and Guidelines for Independent Contractors. 45 Fed. 

Reg. 44,494, 44,497, 44,498 (1980) ('"Enforcement Guidelines'') and Part 45 of MSHA 's 

Program Policy Manual ("PPM"), Blattner maintains that, under the regulatory scherne, it is only 

required to submit information required of independent contractors. Id at 8, 11-14. 23-27. 

Blattner contends that, because it is neither a ''designated independent contractor'' under 30 

C.F.R. § 41. l (a), or a ''production-operator'" under 30 C.F.R. § 45.2(d). it cannot be required to 

file a legal identity report. Id. at 9-11, 16-23. Blattner further argues that MSHA's decision to 

require independent contractors to file operator reports constitutes a m~jor policy change and. as 

such, is invalid because the change was not implemented pursuant to proper rulemaking 

procedures. Id. at 27-32. 

The Secretary asserts that his interpretation of his own implementing regulations should 

be given deference. S. 1 

Br. at 11-12. The Secretary also argues that Blattner meets the definition 

of operator in section 4'1,.1 (a), by its plain terms, because it (I) "control(led] or supervise[d]" the 

three mines and (2) quallfied as a "designated independent contractor." Id. at 14-15 & n.3. The 

Secretary contends that substantial evidence supports the judge's finding that Blattner was a 

production-operator at each of the three mines. Id. at 27-28. According to the Secretary, the 

Enforcement Guidelines and the PPM are non-binding and specifically provide MSHA with the 

discretion to require independent contractors to file operator identity reports. Id. at 17-26. The 

Secretary maintains that the decision to require Blattner to file legal identity reports reflects his 

longstanding interpretation of the Part 41 reporting requirements and does not constitute a 

substantive rule subject to rulemaking requirements. Id. at 33-34. The Secretary further argues 

that he cannot be estopped from acting on a violation even if he did not cite an identical 

condition in the past. Id. at 34-35. 

Section 109( d) of the Mine Act provides that "[ e Jach operator of a ... mine subject to 

this chapter shall file with the Secretary the name and address of such mine and the name and 

address of the person who controls or operates the mine." 30 U.S.C. § 819(d). Section 3(d) 

defines an operator as "any owner, lessee, or other person who operates, controls, or supervises a 

coal or other mine or any independent contractor performing services or construction at such 

mine." 30 U.S.C. § 802(d). Section 103(h) further authorizes the Secretary to require an 

operator to provide information and reports as are necessary to the Secretary to administer the 

Mine Act. 30 U.S.C. § 813(h). 

The Secretary's implementing regulations mirror the statutory provisions. Section 41 .20 

provides that "[ e Jach operator ... shall file notification of legal identity ... by properly 

completing, mailing, or otherwise delivering form 2000-7 'legal identity report."' An operator is 

defined in section 41.l(a) as "[1] any owner, lessee, or other person who operates, controls, or 

1584 
supervises a coal or other mine or [2] any designated independent contractor performing services 

or construction at such mine." 

Based on Blattner's status as an operator under the plain terms of section 41 . l (a), we 

conclude that the Secretary properly cited Blattner for failing to file an operator's legal identity 

report under section 4 l .20.5 Blattner qualifies as a ''person" who operates, controls, or supervises 

a coal or other mine'' within the meaning of section 41.1 (a). Further, substantial evidence7 

supports the judge's determination that "Blattner exercised direct supervision and control over 

the ore extraction process and the health and safety of the miners so involved." 16 FMSHRC at 

1771. The three MSHA inspectors who issued the citations testified that Blattner supervised and 

was responsible for safety in the pits of the three mines. Tr. 37-39. 126. 128, 135-36, 175-76, 

188-90. Blattner witnesses also testified that Blattner supervised. trained and directed its 

employees and subcontractors in the pit areas. Tr. 430-31. 520-21. 544-47. Blattner had its own 

equipment, which it maintained. Tr. 37. Blattner played a predominant role in the pits. As 

former Senior Mine Engineer at Aurora. Larry Turner, testified. Blcfttncr had 45 to 50 employees. 

including subcontractor employees, in the pit whereas Aurora had only a small force. Tr. 263-

64. He also testified that Blattner ran its own safety program and performed supervision in the 

pit. Tr. 262-63, 266; Gov't Ex. 8. The contracts between Blattner and the owners specify that 

Blattner was to supervise the work it had contracted to perform. J. Ex. I, at 3-4; J. Ex. 2, at A15; J. Ex. 3, at 8. The record showed that Blattner was responsible for administering safety 

programs in the pits. Tr. 37-38. 130, 262. 430-32, 523-24. In addition, Blattner hired, directly 

5 Because Blattner meets the definition of an operator under the first clause of section 

41. l, the Commission does not reach the question of whether Blattner is also a "designated 

independent contractor" under the second clause of section 41.1 (a). 

6 30 C.F.R. § 41.1 (b) defines "person" as "any individual, sole proprietor, partnership, 

association, corporation, firm, subsidiary of a corporation, or other organization." 

7 The Commission is bound by the terms of the Mine Act to apply the substantial 

evidence test when reviewing an administrative law judge's factual determinations. 30 U.S.C. 

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

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

Coal Co., 11 FMSHRC 2159, 2163 (November 1989) (quoting Consolidated Edison Co. v. 

NLRB, 305 U.S. 197, 229 (1938)). While we do not lightly overturn ajudge's factual findings 

and credibility resolutions, neither are we bound to affirm such determinations if only slight or 

dubious evidence is present to support them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 

732 F.2d 1288, 1293 (6th Cir. 1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 

1263 (7th Cir. 1980). We .are guided by the settled principle that, in reviewing the whole record, 

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

weight of the evidence that supports a challenged finding. Universal Camera Corp. v. NLRB, 

340 U.S. 474, 488 (1951). 

1585 

. . . . -....... ~ .. .. .. . . 
paid, and was responsible for subcontractors who performed blasting and drilling in the three 

mines as well as crushing at Aurora. Tr. 38, 431-32, 437, 523-24, 544-47; Gov't Ex. 8.8 

We reject Blattner's contention, as did the judge, that it cannot be both an independent 

contractor under Part 45 and an operator under the reporting requirements of section 41.20. See 

16 FMSHRC at 1768-70. Nothing in the language of the Part 41 and Part 45 regulations states 

that the coverage in each provision is mutually exclusive. The Commission has recognized that 

an entity may be both an operator and an independent contractor. Joy Technologies Inc. - Coal 

Field Operations. 17 FMSHRC 1303, 1306-09 (August 1995) ~ Lang Brothers. Inc .. I 4 FMSHRC 

413, 419-20 (September 1991) (published March I 992). See also Ass ·11 <?/Bit11111ino11s 

. Contractors v. Andrus. 581 F.2d 853. 861-62 (D.C. Cir. 1978) (independent contractor qualifies 

as an operator under the Coal Act). Thus, the fact that Blattner tiled an independent contractor 

report under section 45.3 did not relieve it from filing an operator report under section 41 .1 (a). 

We do not reach Blattner's argument that it is not a production-operator under section 45.2(d) 

and therefore does not have to file a legal identity report. Blattncr's status under Part 45 is not 

determinative of whether it must file an operator report under Part 4 I.'' 

Blattner's conteptions that the citations are invalid because they arc contrary to MSHA 's 

PPM and Enforcement G.uidelines are also unpersuasive. As the judge correctly pointed out, the 

Enforcement Guidelines and the PPM are not binding on the Secretary or the Commission. King 

Knob Coal Co., 3 FMSHRC 1417, 1420 (June 1981) ("[T)he Manual's 'instructions are not 

officially promulgated and do not prescribe rules of law binding upon [this Commission).' .. . 

[T]he express language of a statute or regulation 'unquestionably controls' over material like a 

.. . manual.") (citations omitted); Bulk Transportation Services. Inc., 13 FMSHRC 1354, 1360 

(September 1991). In Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (D.C. Cir. 

1986), the court held that the specific Enforcement Guidelines at issue here were non-binding on 

the Secretary because they were general statements of policy, "replete with indications that the 

Secretary retained his discretion to cite production-operators as he saw fit." Moreover, the 

Enforcement Guidelines and the PPM give the Secretary the discretion to require an independent 

8 Blattner's argument that it did not exercise "prime and overall responsibility" over the 

properties, see B. Br. at 19-20, is unpersuasive. Section 41.1 (a) does not require an operator to 

have overall responsibility for the mine property. · 

9 We are also unmoved by Blattner's argument that confusion will be created by 

assigning multiple mine numbers to one property. The Fourth Circuit long ago recognized under 

the Coal Act that there can be multiple mines at a single site. Bituminous Coal Operarors ' Ass 'n 

v. Secretary of Interior, 547 F.2d 240, 246 (4th Cir. 1977). Congress specifically approved 

Bituminous Coal Operators' Ass 'n in enacting the Mine Act. S. Rep. No. 181, 95th Cong., 1st 

Sess. 14 (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 I977, at 

602 (1978). 

1586 
contractor to file an operator report. The preface to the Enforcement Guidelines states that they 

are for the guidance ofMSHA inspectors in making their "individual enforcement decisions." 45 

Fed. Reg. at 44,495. The guidelines caution that nothing in them is meant to alter the basic 

compliance responsibilities of production-operators. 45 Fed. Reg. at 44,497. Additionally, the 

PPM provides that "[m]illing operations that receive ores from an underground or a surface mine 

on the same property may be assigned a separate identification number or may share the same 

identification number as the mine.'' Gov't Ex. 6 (PPM) at I. 

Thus. we also reject Blattner's additional contention that, because the citations represent a 

change in MSHA rule and policy, the Secretary must proceed by notice and comment 

rulemaking. Since section 41.20 applies to Blattner by its clear terms, rulemaking was not 

needed. When a governmental action "restates an obligation imposed by ... regulations," it is 

not subject to notice and comment rulcmaking. Stole <?f Indiana. Dept. <?f Puhlic We(fare v. 

,)'u//ivan. 934 F.2d 853, 856 (7th Cir. 1991 ). Moreover. as a factual matter. substantial evidence 

supports the judge's rejection of Blattner's claim that the citations signified a change in MSHA 

policy. See 16 FMSHRC at 1777. The record contains evidence that MSHA required a number 

of other contractors to file such a report prior to 1992, the year in which Blattner claims the 

policy changed. Tr. 203, 207; Gomez Dep. at 80; Gov't Ex. 6 (PPM) at 9 (dated July l, 1988) 

(independent contractor-classified as a mine operator is required to file legal identity report). 

Although some conflicting testimony on this point exists (see Tr. 142-43, 182-83), the judge 

made a credibility determination that no change in policy occurred; such determinations are not 

to be overturned lightly and are entitled to great weight. Jn Re: Contests <?f Re!>pirable Dust 

Sample Alteration Citations. 17 FMSHRC 1819. 1878 (November 1995). 

We also reject Blattner's argument that the Secretary abused his discretion in citing it for 

a violation of section 41.20. "The Commission and courts have recognized that the Secretary has 

wide enforcement discretion," which is reviewable by the Commission. W-P Coal Co., 16 

FMSHRC 1407, .1411(July1994), (citing Bulk Tram1Jortation, 13 FMSHRC at 1360-61); 

Consolidation Coal Co. , I I FMSHRC 1439, 1443 (August 1989); Brock v. Cathedral Bluff~, 

796 F.2d at 538. In this case, we find no basis to conclude that the Secretary abused his 

discretion. 

Blattner argues, in effect, that the Secretary should be estopped from enforcing the 

regulation because the Secretary had not required Blattner and other similarly situated 

contractors to file such reports in the past. As we have already noted, the judge determined that 

the Secretary required other contractors to file such reports in the past, and we see no basis for 

overturning that finding. 

. Accordingly, we conclude that Blattner plainly met the regulatory definition of operator 

and that the Secretary properly required Blattner to file an operator legal identity report. 

1587 

,: 

~: 

.. 

<· ;-
III. 

Conclusion 

For the reasons set forth above, we affirm the judge's determination that Blattner violated 

section 41.20 by failing to file a legal identity report and accordingly affirm the penalties 

assessed as well as the dismissal of the contest proceeding. 

\ 

Marc Lincoln Marks, Commissioner 

1588 
Distribution 

Michael S. Lattier, Esq. 

Gough, Shanahan, Johnson & Waterman 

3 3 South Last Chance Gulch 

Helena, MT 59601 

Robin A. Rosenbluth, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge John Morris (retired) 

Federal Mine Safety & Health Review Commission 

1244 Speer Blvd., Suite 280 

Denver, CO 802-4 

1589 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 24, 1996 

Docket No. WEST 96-318-M 

A.C. No. I 0-00402-05551 

KINROSS DeLAMAR MINING COMP ANY 

BEFORE: Jordan, Cpairman; Marks and Riley, Commissioners 

ORPER 

BY THE COMMISSION: 

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

§ 80 I et seq. ( 1994) ("Mine Act"). On August 26, 1996, the Commission received from Kinross 

DeLamar Mining Company ("Kinross") a request to reopen a penalty assessment that had 

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

§ 8 l 5(a). 1 The Secretary of Labor filed a response, indicating that he does not oppose the motion 

for relief filed by Kinross. 

Under section I OS( a) of the Mine Act 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, the proposed 

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

I On September 6, Kinross filed an amended motion, identical to its original request 

except that it contains an express reference to a supporting affidavit and an original copy of that 

affidavit, which is attached to its request as Exhibit 3. 

1590 
Kinross states that it mailed a timely request for a hearing (''Green Card") to the 

Department of Labor's Mine Safety and Health Administration ("MSHA"), thirty days after it 

received a Proposed Assessment Form mailed to its mine by MSHA. It asserts that, because of 

the inaccessible location of its mine, its does not receive regular mail deliveries from the nearest 

U.S. Post Office, but must make arrangements to pick up and deliver its mail, resulting in a oneday delay in the actual receipt of its mail. K. Mot. at 1-2. Kinross therefore explains that, 

although the notice of proposed penalty was delivered to the post office on June 24, 1996, it did 

not receive it until June 25. Id. at 2, 4. Kinross further asserts that it mailed and postmarked its 

Green Card on July 25, but that the postmaster over-stamped, or re-postmarked, the Green Card 

for July 26. id. at 2-3, 5. Attached as exhibits to Kinross' motion are copies of the certified mail 

receipt accompanying the notice of proposed assessment, Kinross' Green Card, and an affidavit 

by Mary Barraco, Kinross' Superintendent of Safety and Environmental Services. 

The Commission has held that, in appropriate circumstances and pursuant to 

Fed. R. Civ. P. 60(b) ("Rule 60(b )"), it possesses jurisdiction to reopen uncontested assessments 

that have become final under section 105(a). Jim Walter Resources, Inc., 15 FMSHRC 782, 

786-89 (May 1993); Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (September 1994). 

The Commission has observed that default is a harsh remedy and that, if the defaulting 

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

may be reopened and appropriate proceedings on the merits permitted. See Coal Preparation 

Services, Inc., 17 FMSHRC 1529, 1530 (September 1995). In accordance with Rule 60(b )(I), 

the Commission has previously afforded a party relief from a final order of the Commission on 

the basis of inadvertence or mistake. See General Chemical Corp., 18 FMSHRC 704, 705 (May 

1996). It appears from the record that Kinross had a reasonable basis for believing that it timely 

mailed its Green Card. Even assuming the Green Card was not in fact timely mailed, the 

untimeliness could be properly found to be attributable to "inadvertence" or "mistake" within the 

meaning of Rule 60(b )(I) -- due to the unique mail service situation at the Kinross mine. 

Accordingly, in the interest of justice, we grant Kinross' unopposed request for relief and reopen 

1591 
the penalty assessment that became a final order of the Commission. This case shall proceed 

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

Marc Lincoln Marks, Commissioner 

James C. Riley, Commissioner 

1592 

• 
Distribution 

Ruth L. Ramsey, Esq. 

Patton Boggs, L.L.P. 

2550 M Street, N.W. 

Washington, D.C. 20037-1350 

Y oora Kim, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Douglas N. White, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

1593 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

V. 

GREEN COAL COMPANY, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 24 , 1996 

Docket No. KENT 96-349 

A.C. No. 15-16454-03575 

Docket No. KENT 96-350 

A.C. No. 15-16454-03576 

BEFORE: Jordan, Chairman; Marks and Riley, 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 August 26, 1996, the Commission received from Green 

Coal Company, Inc. ("Green Coal") a request seeking to reopen penalty assessments that had 

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

§ 815(a). On September 10, the Commission received the Secretary of Labor's response, 

opposing the request. 

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, the proposed penalty assessment is deeme,d a final order of the Commission. 30 

U.S.C. § 815(a). 

The only reasons offered by Green Coal for the late filing of its hearing requests are that 

the company has been involved in bankruptcy proceedings, and that it is attempting to cut costs 

in order to save the mine operation and employee jobs. Section 11 O(i) of the Mine Act includes, 

among other criteria to be considered by the Commission in assessing penalties, "the 

appropriateness of such penalty to the size of the business," and "the effect on the operator's 

ability to stay in business:· 30 U.S.C. § 820(i). The Act nonetheless imposes certain burdens 

1594 

:._ 
and responsibilities on operators, perhaps the least of which is to sign the "Green Card" 

accompanying a citation and maiJ it to the address printed on the card in order to perfect their due 

process right to a hearing. Green Coal failed to timely file "Green Card" notices of contest 

challenging the proposed penalty assessments by the Department of Labor's Mine Safety and 

Health Administration ("MSHA"). 

The Commission has held that, in appropriate circumstances and pursuant to 

Fed. R. Civ. P. 60(b) ("Rule 60(b)"), it possesses jurisdiction to reopen uncontested assessments 

that have become final under section 105(a). Jim Walter Resources, Inc. , 15 FMSHRC 782, 

786-89 (May 1993); Rocky Hollow Coal Co. , 16 FMSHRC 1931, 1932 (September 1994). Relief 

from a final order is available in circumstances such as a party's mistake, inadvertence, or 

excusable neglect. Requests to reopen under Rule 60(b) must be made within a reasonable time 

and are committed to the sound discretion of the judicial tribunal in which relief is sought. 

Randa/Iv. Merrill Lynch, 820 F.2d 13 17, 1320 (D.C. Cir. 1987), cert. denied, 484 U.S. 1027 

( 1988). See also Tolbert v. Chaney Creek Coal Corp., 12 FMSHRC 615, 619 n.1 (April 1990). 

Rule 60(b) is "the mechanism by which courts temper the finality of judgments with the necessity 

to distribute justice" and "is a tool which trial courts are to use sparingly ... . " Randall, 820 F.2d 

at 1322; Pit, 16 FMSHRC 2033, 2034 (October 1994). 

Green Coal has offered no satisfactory explanation for its failure to timely file hearing 

requests in these cases. The mere fact that it is involved in bankruptcy proceedings, or in cutting 

costs, does not, in itself, provide a basis for relief under Rule 60(b). Moreover, Green Coal has 

failed to provide any explanation of how its involvement in bankruptcy proceedings or costcutting contributed to the late submission of its hearing requests. Thus, Green Coal has failed to 

set forth grounds establishing that Rule 60(b) relief is appropriate for the uncontested 

assessments that became final by operation of section 1 OS(a) of the Mine Act. See Tanglewood 

Energy, Inc. , 17 FMSHRC 1105, 1107 (July 199?); North Star Contractors, Inc., 17 FMSHRC 

886, 887 (June 1995); Pit, 16 FMSHRC at 2034. Accordingly, we conclude that Green Coal's 

request does not justify relief under Rule 60(b ). 

1595 
For the foregoing reasons, Green Coal's request for relief is denied. 

Distribution 

James E. Curtis, Safety Director 

Green Coal Company, Inc. 

6288 Chaney Road 

Spottsville, KY 42458 

Y oora Kim, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Douglas N. White, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Marc Lincoln Marks, Commissioner 

ames C. Riley, Commissioner 

1596 

• 

·: 

.• 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 30, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

CANNELTON INDUSTRIES, INC. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

V. 

CHARLES PATTERSON, employed by 

CANNELTON INDUSTRIES, INC. 

SECRETARY OF LABOR. 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

GEORGE RICHARDSON, employed by 

CANNELTON INDUSTRIES, INC. 

Docket No. WEVA 94-381 

Docket No. WEY A 95-1 00 

Docket No. WEY A 95-101 

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1 

ORDER 

BY: Jordan, Chairman; and Riley, Commissioner 

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

1977, 30 U.S.C. § 801 et seq. (1994) (''Mine Act"). On April 29, 1996, Administrative Law 

1 Commissioner Holen participated in-the consideration of this matter, but her term 

expired before issuance of this order. Pursuant to section 113(c) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been designated 

to exercise the powers of the Commission. 

1597 
Judge Todd Hodgdon issued a decision in which he concluded that Cannelton Industries, Inc. 

("Cannelton") violated 30 C.F.R. ·§ 75.400 by failing to clean up an accumulation of coal under a 

conveyor belt, that the violation was significant and substantial (''S&S") and the result of 

unwarrantable failure, and that Charles Patterson and George Richardson, employed by 

Cannelton, knowingly authorized the violation by failing to have the accumulation cleaned up. 

18 FMSHRC 651, 654-61 (April 1996) (ALJ). The judge ordered Cannelton, Patterson, and 

Richardson to pay civil penalties of $3,600, $500, and $500, respectively. 18 FMSHRC at 661-

62. The Commission granted the petition for discretionary review filed by counsel for 

Cannelton, Patterson, and Richardson, challenging the judge's determinations. 

On July 15, 1996, counsel for Cannelton, Patterson, and Richardson filed a motion to 

remand and reopen the record and motion to stay review proceedings. Counsel explains that the 

movants' counsel at the hearing, an inexperienced attorney within the same law firm, failed to 

present certain relevant evidence because its existence "slipped his mind." Mot. at 5 & Att. B. 

He asserts the failure to present the evidence was not the result of culpable conduct by the 

movants and the evidence establishes a defense that would have altered the outcome of the case 

had it been admitted. Id. at 9. Attached to the motion are photocopies of the evidence and the 

affidavit of the hearing counsel. Atts. A & B. Counsel requests that, pursuant to Fed. R. Civ. P. 

60(b ),

2 the Commission remand the matter to the judge, order the record to be reopened for the 

taking of additional evidence, and stay review proceedings pending the judge's decision on 

remand.3 Mot. at 9-10. He asserts that the Secretary of Labor would not be prejudiced by the 

granting of the motion. Id. at 9.

4 · 

On July 18, 1996, the Secretary filed an opposition to the motion and a motion to strike. 

He argues that the movants have not established a basis for relief under Rule 60(b) and that he 

2 Rule 60(b) states, in part: 

On motion and upon such terms as are just. the court may relieve a 

party or his legal representative from a final judgment, order, or 

proceeding for the following reasons: ( 1) mistake, inadvertence, 

surprise, or excusable neglect; ... or (6) any other reason justifying 

relief from the operation of the judgment. 

Counsel also requests that briefing be sta7ed pending the Commission's consideration 

of the motion. Mot. at 3. On July 17, 1996, the Commission issued an order staying the filing of 

briefs until further notice. 

4 On July 18, 1996, counsel filed a supplemental statement to the motion, contending that 

the judge incorrectly stated the date on which th~ citation was issued and that, in view of the 

correct date, the additional evidence is relevant to whether Cannelton had notice of the 

accumulation. Supp. Statement at 1. 

1598 
would be prejudiced by the granting of relief and requests that the Commission deny the motion. 

S. Opp. at 4-13. In addition, the Secretary requests that the evidentiary materi~I attached to the 

motion and all references thereto be stricken from the record because it was not properly 

introduced. Id. at 13-14. 

On August 2, 1996, counsel for Cannelton, Patterson, and Richardson filed an opposition 

to the Secretary's motion to strike. Counsel argues that submission of the evidentiary material is 

necessary to justify reopening the record and requests that the Commission deny the motion to 

strike. C. Opp. at 3-5. 

A final Commission judgment or order may be reopened under Rule 60(b )( l) & (6) in 

circumstances such as mistake, inadvertence, excusable neglect, or other reasons justifying relief. 

29 C.F.R. § 2700.l (b) (Federal Rules of Civil Procedure apply '·so far as practicable" in the 

absence of applicable Commission rules). Rule 60(b) motions are committed to the sound 

discretion of the judicial tribunal in which relief is sought. Randall v. Merrill Lynch, 820 F .2d 

1317, 1320 (D.C. Cir. 1987), cert. den;ed, 484 U.S. 1027 (1988). Rule 60(b) is "the mechanism 

by which courts temper the finality of judgments with the necessity to distribute justice" and "is 

a tool which trial courts are to use sparingly . ... " Randall, 820 F.2d at 1322. See also Tolbert v. 

Chaney Creek Coal Corp., 12 FMSHRC 615, 619 n. l (April 1990). 

In Midwest Minerals, Inc., 12 FMSHRC 13 75 (July 1990), the Commission denied an 

operator's motion to remand and reopen the record for the taking of additional evidence where its 

non-attorney representative failed to introduce evidence relevant to its defense. The Commission 

reasoned: 

Because the adequacy of a party's representation at hearing is linked to the 

party's choice of its representative, we must look askance at any request that Rule 

60(b) relief be granted because the party's chosen representative is claimed to 

have performed ineffectually at the hearing before the judge resulting in an 

adverse decision. Routinely granting such relief would . . . unfairly provide a 

losing party "a second turn at bat.., 

Id. at 13 77. Similarly, in this case, the attorney's failure to present evidence at the hearing does 

not provide a basis for reopening the record. · 

In Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993), 

the Supreme Court reaffirmed the principle that ''clients must be held accountable for the acts 

and omissions of their attorneys." Id. at 396 (citing Link~ · Wabash R.R., 370 U.S. 626, 633-34 

(1962), United States v. Boyle, 469 U.S. 241 (1985)). The Court further explained that whether a 

party's neglect is excusable is an equitable determination in which consideration should be given 

to "all relevant circumstances surrounding the party's omission." Id. at 395. The Court 

emphasized that the focus is upon the neglect of both the clients and their counsel. Id. at 397. 

Here, counsel for Cannelton, Patterson, and Richardson asserts that' the movants had provided the 

1599 

"·· 
evidentiary material to the attorney, who was in possession of it during the hearing. Mot. at 5 & 

Att. B. Thus, knowledge of the evidentiary material can be charged upon both the movants and 

their attorney. 

We conclude that movants have not met the criteria for relief under Rule 60(b). Although 

it is unfortunate that the evidentiary material "slipped the attorney's mind," the movants must be 

held accountable for the failure of counsel. Accordingly, we deny the motion to remand and 

reopen the record and the motion to stay review proceedings. 

With regard to the motion to strike, the Secretary points out that the evidentiary material 

in question was not part of the record before the judge and was not subject to cross-examination 

or rebuttal. S. Opp. at 13. He correctly asserts that the Commission's consideration on review of 

this extra-record evidentiary material would contravene section 113(d)(2)(C) of the Mine Act, 30 

U.S.C. § 823(d)(2)(C). 5 S. Opp. at 13-14. Therefore, we grant the motion to strike the 

evidentiary material and references to it from the motion insofar as it addresses the merits of the 

case. See Midwest, 12 FMSHRC at 1377 n.3. 

Cannelton, Patterson, and Richardson are hereby ordered to file opening briefs within 30 

days of the date of this order. Other briefs shall be filed in accordance with 29 C.F.R. 

§ 2700.75(a). 

5 Section 1l3(d)(2)(C) states, in part: 

For the purpose of review by the Commission ... the 

record shall include: (i) all matters constituting the record upon 

which the decision of the ad·ministrative law judge was based; (ii) 

the rulings upon proposed findings and conclusions; (iii) the 

decision of the administrative law judge; (iv) the petition or 

petitions for discretionary review, responses thereto, and the 

Commission's order for review; and (v) briefs filed on review. No 

other material shall be considered by the Commission upon review. 

1600 
Commissioner Marks. concurring in part and dissenting in part: 

With respect to the Secretary's motion to strike, I concur with the disposition of the 

majority to grant the motion. 

However, I find that the circumstances supporting Cannelton's motions to remand and 

reopen the record and stay review of these proceedings sufficiently demonstrate excusable 

neglect under Fed. R. Civ. P. 60(b)(l). Accordingly, I would grant Cannelton's motions. 

Marc Lincoln Marks, Commissioner 

1601 
Distribution 

David Hardy. Esq. 

Jackson & KeJly 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 

Y oora Kim, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

1602 
ADMINISTRATIVE LAW JUDGE DECISIONS 

.·: 

;. 

·.· 

FEDERAL MIN.E SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 5 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA) , 

Petitioner 

v. 

REB ENTERPRISES INCORPORATED, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HAROLD MILLER, 

Employed by REB ENTERPRISES 

INC. I 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

RICHARD E. BERRY, 

Employed by REB ENTERPRISES 

INC. I 

Respondent 

1603 

Docket No. CENT 95-29-M 

A.C. No. 03-01640-05511 

Docket No. CENT 95-30-M 

A.C. No. 03-01640 - 05512 

REB Enterprises Inc. 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 95-239-M 

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

REB Enterprises Inc. 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 95-240-M 

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

REB Enterprises Inc. 
Appearances: 

Before: 

· DECISION 

Daniel J. Haupt, Mine Safety and Health 

Administration, U.S. Department of Labor, Dallas, 

Texas, and Jack F. Ostrander, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Dallas, Texas, for the Petitioner; 

James E. Crouch, Esq., Cypert, Crouch, Clark & 

Harwell, Springdale, Arkansas, for the Respondent. 

Judge Weisberger 

Statement of the Case 

At issue in these consolidated cases are citations 

and orders issued by the Secretary ("Petitioner") to REB 

Enterprises Inc., ("REB"), alleging violations of various 

mandatory safety standards set forth in Title 30 of the Code 

of Federal Regulations. Also at issue are citations issued to 

Harold Miller, and Richard E. Berry, alleging violations of 

Section llO(c) of the Federal Mine Safety and Health Act of 1977 

("the Act" ) . Pursuant to notice, a hearing was held in 

Fayetteville, Arkansas in June 11, 1996. REB filed a post-trial 

brief on July 17, 1996. Petitioner's post-hearing brief was 

filed on August 5, 1996. On August 14, 1996, REB's response to 

petitioner's post-hearing brief was filed. 

I. Jurisdiction 

REB operates a limestone quarry. As a part of the mining 

operation, overburden is first removed exposing limestone rock 

which is then blasted. The rock is then further crushed, 

stockpiled, and subsequently sold to customers. There is no 

evidence that any REB product is sold or used outside the state 

of Arkansas. 

It is the position of REB and the individual Respondents, 

Miller, and Berry, that REB's operation is not subject to the 

Act's jurisdiction. 

Section 4 of the Act provides that each mine ~ . . the 

operations or products of which affect commerce," shall be 

subject to the Act. 

1604 
In Jerry Ike Harless Towing. Inc .. and Harless. ·Inc., 

(16 FMSHRC 683 (April 11, 1984)), the Commission analyzed the 

scope of the Commerce Clause of the Constitution as follows: 

The Commerce Clause of the Constitution has been 

broadly construed for over 50 years. Commercial 

activity that is purely intrastate in character may be 

regulated by Congress under the Commerce Clause, where 

the activity, combined with like conduct by others 

similarly situated, affects commerce among the states. 

Fry y. United States, 421 U.S. 542, 547 (1975); Wickard 

y. Filburn 317 U.S. 111 (1942) (growing wheat solely 

for consumption on the farm on which it is grown 

affects interstate commerce} . Congress intended to 

exercise its authority to regulate interstate commerce 

to the "maximum extent feasible" when it enacted 

Section 4 or the Mine Act. Marshall y. Kraynak. 604 

F.2d 231. 232 (3d Cir. 1979), ~.denied 444 U.S. 

1014 (1980); United States y. Lake, 985 F.2d 265, 267-

69 (6th Cir. 1993). In ~' the mine operator sold 

all its coal locally and purchased mining supplies from 

a local dealer. 985 F.2d at 269. Nevertheless, the 

court held that the operator was engaged in interstate 

commerce because "such small scale efforts, when 

combined w~th others, could influence interstate coal 

pricing and demand." ~. Harless,supra at 686. 

It is significant to note that a product mine at the quarry 

at issue, SP-2, which is used as a highway road base, was sold to 

a contractor who used the product in construction work performed 

on Arkansas state highway No. 412, which runs West from Arkansas, 

and crosses over and continues into the state of Oklahoma. Also, 

a Case bulldozer which was in operation at the mine on August 16, 

1994, was manufactured in Racine, .Wisconsin i.e., outside the 

state of Arkansas. Given these uncontested facts, and 

considering the broad principles enunciated by the Commission in 

Harless Towing, ~a, and based on the authority of the sixth 

circuit in l.ia.k.e., supra, I am constrained to find that REB's 

operation affected interstate commerce, and hence was subject to 

the Act's jurisdiction. 

1605 
II. Citation No. 4327635. 

At the hearing, Petitioner moved to withdraw this citation 

due to the lack of evidence to support it. Based upon 

Petitioner's representations, the motion was granted. 

III. Citation No. 4327775. 

James Clifton Enochs, an MSHA inspector, testified that on 

August 16, 1994, he reviewed REB's records. According to Enochs, 

the records indicated that the most recent test for continuity 

and resistance of the grounding system, was on April 8, 1993. 

According to Enochs there was no record of any test subsequent to 

that date and prior to his inspection on August 16, 1994. Enochs 

issued a Citation alleging a violation of 30 C.F.R. § 57.12028 

which provides as follows: "Continuity and resistance of 

grounding systems shall be tested immediately after installation, 

repair, and modification; and annually thereaftei:. A record of 

the resistance · measured during the most recent test shall be made 

available on a request by the Secretary or his duly authorized 

representative." (Emphasis added . ) 

Based upon the uncontradicted testimony of Enochs, I find 

that the most recent test of the continuity and resistance of the 

grounding system recorded by REB was April 8, 1993. I reject 

REB's argument that, in essence, there was no violation of 

Section 57.12028, supra, since it had until the end of the 

calendar year 1994 to perform and record the relevant testing. 

Section 57.12028, supra, requires continuity testing 

"annually"' after installation. Websters Third New 

International Dictionary, (1986 Edition) ("Webster's") defines 

the word "annually" when used as an adjective as follows "***2: 

... done, or acted upon every year or once a year . • .. " "Year" 

is defined in Webster's, as relevant, as follows: "c: a period of 

time equal to one year on the Gr~gorian calendar but beginning at 

a different time." In contrast, Webster's defines a "calendar 

year" as follows: "a period of a year beginning and ending with 

the dates which are convention.ally accepted as marking the 

beginning and end of a numbered year." Hence, applying the 

common meaning of the adjective ''annually", I find that Section 

57.12028 ~upra, by its terms, is not satisfied by performing and 

recording the relevant test anytime within a calender year. I 

1606 
conclude that Section 57.12028, supra, is not complied with if 

the relevant test was not performed and recorded within a year 

subsequent to the last such test. Since the last recorded test 

had been recorded more than twelve months prior to the date of 

the inspection, August 16,1994, I find that Section 57.12028 

supra, has been violated. I find that a penalty of $50 is 

appropriate . 

.ljl. Citation No. 4327776 . 

A. Violation of 30 C.F.R. § 57.14131(a) 

Enochs testified that on August 16, 1994, as part of his 

inspection, he went to the pit along with Ray King, who was the 

foreman at the time. Enochs walked over to a R-20 Euclid haul 

truck to introduce himself to the driver. He climbed up to the 

running board and noticed that the driver, Ron Alexander, did not 

have his seat belt on. Enochs issued a Citation alleging a 

violation of 30 C.F . R. § 57.1413l(a) which provides as follows: 

"Seat belts shall be provided and worn in haulage trucks". 

Respondent did not impeach or contradict the testimony of 

Enochs regarding his observations. Accordingly his testimony in 

this regard is accepted. Based on his testimony, I find that on 

August 16, 1994, the driver of the R-20 Euclid haul truck was not 

wearing his seat belt. I thus conclude that REB violated 

Section 57.l4131(a), ~upra, 

B. Significant and Substantial 

A "significant and substantial" violation is described in 

section 104(d) (1) of the Mine Act as a violation "of such nature 

as could significantly and substantially contribute to· the cause 

and effect of a coal or other mine safety or health hazard." 

30 C. F .R. § 814(d) (1). A violatipn is properly designated 

significant and substantial "if, based upon the particular facts 

surrounding the violation there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or 

illness of a reasonably serious nature." Cement Division. 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

1607 
In Mathies Coal Co . , 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained its interpretation of the term "significant 

and substantial" as follows: 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial under National Gypsum the Secretary of 

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

mandatory safety standard; (2) a discrete safety 

hazard- -that is, a measure of danger to safetycontributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result 

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

injury in question will be of a reasonably serious 

nature . 

In United St ates Steel Mining Company. Inc., 7 FMSHRC 1125, 

1129, the Commission stated further as follows : 

We have explained further that the third element 

of the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U. S . Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d) (1), it 

is the contribution of a violation to the cause and 

effect of a hazard that must be significant and 

substantial. U.S . Steel Mining Company. Inc., 6 FMSHRC 

1866, 1868 (August 1984); U.S. Steel Mining Company. 

~., 6 FMSHRC 1573, 1574-75 (July 1984). 

The truck at issue hauls material from the pit to the 

crusher over the roadway which Enochs described as being 

"somewhat rough" (Tr. 32). Accord1ng to Enochs the roadway is 

mostly level but goes down an incline at the area of the crusher. 

Enochs indicated that there are other haul trucks and equipment 

operating in the area. 

Enochs opined that should the truck overrun a berm, the 

operator would be thrown from the vehicle and severely injured 

because he was not wearing a seat belt. Also, Enochs opined that 

·1608 
should the truck run into another piece of equipment, the 

operator would be thrown into the windshield, and could be 

injured thereby. According to Enochs, there is constant spillage 

on the road, and if the truck should run over a large boulder, 

~it could throw the steering wheel, it could throw the unit 

itself" (Tr. 57). He opined that, based upon his experience, the 

occurrence of an accident resulting in the truck being wrecked is 

quite possible. According to Enochs, thirty percent of 

fatalities in t he mining industry involve haulage units. He 

opined that should the truck roll over, the driver would most 

likely suffer a fatal ity, as he did not have a seat belt on. 

Enochs indicated that he investigated five or six situations in 

which haul trucks had rolled over. 

Richard E. Berry, the owner, principal stockholder, and 

President of REB, indicated that REB has been operating a 

limestone quarry at the location in issue since 1988. According 

to Berry the distance from the pit to the crusher is 

approximately a quarter of a mile. He testified that at the 

crusher the roadway goes down a grade for about 100 feet, where 

it flattens out for 700 to 800 feet, and then goes up a grade 

that rises about thirty feet, and then becomes flat again . The 

roadway is between sixty to seventy feet wide, but narrows down 

to twenty feet for approximately 100 feet where the road goes up 

a grade. Berry said that the trucks that are driven over the 

roadway are about eight to nine feet wide, and generally pass one 

another. 

I find, that REB did violate a regulatory standard, i.e., 

Section 56.1413l{a) supra . I also find that this violation 

contributed to the hazard of the operator of the haul truck being 

injured should the truck collide with another vehicle or object, 

or overtravel a berm. However, the record does not establish the 

speed at which the haul truck regularly operates. There is no 

evidence that there was any problem with the truck's brakes, or 

that the truck had any other mecqanical malfunction. Further, 

based upon the uncontradicted testimony of Berry, the roadway was 

wide enough to safely accommodate two trucks traveling in 

different directions. Although Enochs testified that the roadway 

was "somewhat rough" and that spillages were common, he did not 

prof fer any evidentiary facts based upon his observations to 

support these conclusions. 

1609 
Based upon the above record, I find that it has not been 

established that an injury producing event, i.e., the haul truck 

in question colliding with another object with such force and 

speed as to cause the driver to lose control of the truck, or to 

dislodge the driver, was reasonably likely to have occurred. I 

thus find that the third element in Mathies supra, has not been 

established. I find that it has not been established that the 

violation was significant and substantial. 

C. Unwarrantable Failure 

It is the Secretary's position that the violation herein 

constituted an "unwarrantable failure". As such, it is incumbent 

upon the Secretary to establish that REB's actions herein were 

more than ordinary negligence, and reached the level of 

aggravated conduct (Emery Mining~., 9 FMSHRC 1997 (1987)). 

According t9 Enochs, a Mr. Hermstein, an MSHA inspector 

informed him that-. an industrial assistance program handouts 

concerning haulage were passed out to REB's supervisors, Ray 

King, and a Mr. Goody. Enochs stated, in essence, that Hermstein 

told him that he had spent three hours with King and Goody" ... 

for the employees to make sure they preshift each unit, wear 

their seat belts brakes, steering, the maj~r concerns" (sic) 

{Tr. 18). He also indicated that " ... King had been warned 

by MSHA during the industrial assistance session on the seat belt 

usage and how important it was. There was--seemed to be no 

effort to enforce the seat belt law" (sic) (Tr. 33). According 

to Enochs, when he asked the cited driver of the haul truck why 

he had not been wearing a seat belt, he said that "nobody made a 

big deal about it" {Tr. 34). Enochs indicated that King did not 

say anything when the driver was cited, did not correct the 

condition or tell the driver that he had to wear the belt. 

Enochs said that King" ... seemed somewhat indifferent to the 

whole situation" {Tr. 34). Enochs indicated that on the date of 

the inspection, he went inside REB'.s office and did not see any 

notices posted informing employees of the need and necessity to 

wear seat belts. 

According to Berry, a sign is posted outside the building 

where employees check in, advising them of the need to wear seat 

belts. He also testified that a notice was posted in the office 

1610 
advising employees of the need to wear seat belts. 1 I observed 

Berry's demeanor, and found that his testimony on these points 

was credible. 

It is incumbent upon Petitioner to establish, by a 

preponderance of the evidence, that the violation at issue 

resulted from REB's aggravated conduct. Petitioner relies upon 

the heresay testimony of Enochs that King had been warned by MSHA 

personnel in an industrial assistance session regarding the use 

of seat belts at REB's facility. Neither King nor the MSHA 

personnel who allegedly imparted this information to King 

testified on behalf of Petitioner. I find the testimony of 

Enochs in this regard is inherently unreliable due to its heresay 

nature, and cannot be relied upon to establish that King received 

such a warning. Petitioner also relies upon an out of court 

statement by the driver of the cited truck to Enochs that "nobody 

made a big deal" out of the wearing of seat belts. This person 

was not called upon by Petitioner to testify to establish this 

point. I do not assign any probative value to Enochs' heresay 

testimony as such testimony is inherently unreliable. I find 

Enochs' testimony that, when cited, King did not provide much of 

a response and "seemed indifferent", to be too subjective, and 

thus not to be accorded any probative value. Further, I accept 

the testimony of REB's witnesses regarding the information that 

was posted on REB's premises concerning the use of seat belts. 

For these reasons, I find that it has not been established that 

the violation herein resulted from REB's unwarrantable failure. 

D. Penalty 

I find that Petitioner has not established that REB's 

negligence herein was more than moderate. I find that the driver 

of the truck, who was not wearing a seat belt, could have been 

seriously injured should the truck have been significa~tly jolted 

upon hitting another object, or should it have overturned. I 

1This notice was admitted in evidence as Defendant's Exhibit 

30, is dated April 1995. However, Harold Miller, a REB employee 

who testified, and was found to be a credible witness on this 

point, testified that he could not recall any differences between 

the notice that was posted in the office on Aygust 16. 1994, and 

Defendent's Exhibit 30. 

1611 
thus find that the violation herein was more than a moderate 

level of gravity. Taking into account the balance of the factors 

set forth in Section llO(i) of the Act, I find that a penalty of 

$700 is appropriate for this violation. 

y. Order No. 4327622. and Docket Nos. CENI 95-239-M ang 

CENT 95-240-M. 

A. Violation of 30 C.F.R. § 56.14131{g) 

On August 16, 1994, Enochs, in the presence of King, 

observed a Case bulldozer in operation at the top of the 

highwall. According to Enochs, the bulldozer was approaching him 

at an angle of approximately 45 degrees. Enochs estimated that 

when he was about thirty or forty feet away from the bulldozer, 

he noticed that the driver, Bill Jacobs, was not wearing a seat 

belt. He said that it was "obvious" that the operator did not 

have a seat belt on (Tr. 130). Enochs issued an Order alleging a 

violation of 30 C.F.R. § 56.14130(g) which, in essence, requires 

the wearing of seat belts. 

Harold Miller, the lead man at the time, testified that he 

was in the area when Enochs told Jacobs to put his seatbelt on. 

Miller indicated that he could not tell if Jacobs was wearing a 

seat belt . On cross examination Enochs indicated that a 

photograph of the bulldozer in question taken subsequent to the 

date of his inspection, (Defendant's Ex. 8) depicts a bulldozer 

at the approximate angle that the bulldozer was at when cited by 

him. He was unable to tell by looking at this photograph if the 

driver was wearing a seat belt. Enochs was shown two other 

pictures of a driver sitting in the bulldozer at issue 

(Defendant's Exs. 7, and 28) and he was not able to tell if the 

driver was wearing a seat belt. 

REB has not offered any eyewitness testimony to directly 

impeach or contradict Enochs' observation that Jacobs was not 

wearing a seat belt. Specifically·, Miller's testimony that he 

could not tell if Jacobs was wearing a belt when Enochs told the 

latter to put his belt on, is insufficient to contradict Enochs' 

testimony. The record does not establish that Miller observed 

Jacobs from the same distance and direction as observed by 

Enochs. Also, although Enochs could not tell whether the driver 

depicted in REB's photographs was wearing a seat belt, there is 

1612 
no evidence that these photographs accurately depict the view 

that Enochs would have seen from the specific vantage point that 

he had on August 16, 1994, when he saw the bulldozer at issue and 

cited it. Accordingly, I accept Enochs' testimony, and find that 

Jacobs was not wearing a seat belt when cited. Hence, I find 

that REB did violate Section 56.14130(g), supra. 

B. Significant and Substantial 

According to Enochs, the violation should be characterized 

as significant and substantial. He pointed out that he observed 

tracks within five feet of the edge of the highwall. According 

to Enochs, the highwall was eighty feet above the next level. 

Enochs indicated that in normal operations, at times the blade of 

the bulldozer "will catch on a hard rock area, seam or something 

like that, and it shakes, shake the machine and the operator 

pretty bad, substantially, and it could throw him off the 

machine . You know, cause him to lose control" (sic) (Tr. 131) . 

Enochs also opined that the bulldozer could accidentally run over 

the highwall, as the berm in the area varied between knee to 

waist level, and consisted only of overburden material. 

On the other hand, on cross examination, it was elicited 

from Enochs that the bulldozer as seen by him was not operating 

"at a high rate of speed" (Tr. 146) . Further, on cross 

examination Enochs was unable to state how often bulldozers have 

been driven off a highball each year. 

Miller explained that in stripping the overburden " ... we 

stay at least ten foot away from it [the highwall] with any 

dozer" (sic.) (Tr. 185) . Berry explained that in normal 

operations the overburden is cleared in stages working from top 

down. He indicated that in normal operations, the closest the 

bulldozer would get at the edge of a highwall was thirty to forty 

feet (Defendant's Ex. 33). He opined that the tracks observed by 

Enochs might have been placed by the bulldozer during the 

clearing of the overburden, when those tracks would have been 

located thirty to forty feet from the edge of the highwall. 

E~ochs did not explain how, in normal operations, the bulldozer 

would go within five feet of the edge of the top of an existing 

1613 
highwall. 2 I thus find that it has not been established that in 

normal operations the bulldozer would go within five feet of the 

edge of the top of an existing highwall. 

Based upon all of the above, I conclude that it has not been 

established that there was a reasonable likelihood of an injury 

producing event, and thus it has not been established that the 

violation was significant and substantial. 

C. Unwarrantable Failure 

1. Summary of the Testimony 

Enochs testified that Jacobs had told him on the date the 

Citation was issued that he sometimes wears a seat belt, and 

sometimes does not. In contemporaneous notes taken by Enochs, he 

indicated that Jacobs stated that "no one makes a big deal about 

it". (Defendant's Ex . 32) . I do not assign much probative 

weight to this testimony, as it is heresay and thus inherently 

unreliable. The declarant did not testify, and accordingly was 

not present in court to be cross examined. 

Dale St . Laurent, an MSHA investigator, interviewed Jacobs 

who told him that REB did not have any seat belt policy, and that 

no one have ever made him wear a seat belt. St. Laurent 

testified that he also interviewed a Mr. Yates, a serviceman, who 

told him that in the year prior to the inspection "he had never 

seen either of those two dozer operators wear a seat belt .... 

He doesn't remember anyone ever yelling at Mr. Berry or 

Mr. Miller or anyone ever yelling at anybody to put seat belts 

on" (Tr. 245). St. Laurent indicated that Yates told him that 

there wasn't any policy regarding seat belts and that one told 

him to wear seat belts (Tr. 162). According to St. Laurent, 

Yates told him that Jacobs had told him (Yates} that M~ller and. 

Berry never told him to wear a seat belt. 

20n rebuttal, Enochs indicated that when he arrived at the 

top of the highwall, bulldozers were backing out onto a thirty 

foot area that had been strippeq. However, he did not testify 

specifically how close these vehicles were to the edge of the 

highwall. 

1614 
According to Enochs, Miller who was the supervisor on the 

site, was present when the bulldozer was cited, but did not take 

any corrective action. Enochs indicated that the fact that 

Jacobs was not wearing a seat belt was obvious as the cab was 

open. 

Miller indicated that he arrived at work on August 16, at 

6:00 a.m. and left the site at 7:00 a.m. to get some parts, 

returning about 9:00 a.m. He testified that he had been on the 

site for about ten minutes when he saw Enochs talking to Jacobs. 

He indicated that when Enochs came up to Jacobs and told him to 

put a seat belt on, he (Miller) could not tell whether Jacobs 

was wearing a seat belt. I observed Miller's testimony and found 

him credible in these regards. Enochs indicated on cross 

examination, that he was thirty to forty feet away from Jacobs 

when he observed that Jacobs did not have a seat belt on, and 

that Miller was approximately ten yards further back. Within his 

context I find that there is no evidence that Miller ~ that 

Jacobs had not been wearing a seat belt when cited. 

Miller indicated that subsequent to September 1995, he has 

been the supervisor a t the quarry but that in August of 1994, he 

was only the "lead man" (Tr. 175) . He stated that in this 

capacity it was his responsibility to operate equipment, and get 

the dirt stripped. He said that in general, his supervisor, Ray 

King, told him what to do on -the site, and he in turn passed this 

information on to the other equipment operators. He said that he 

did not have any authority to punish the men, and did not have 

any authority to hire or fire. He stated that he was never told 

what to do regarding the punishment to be given the men. He 

indicated that he did not tell the men what equipment to use. 

2. Discussion 

There is no evidence that King, the quarry supervisor, or 

Miller, had notice or acknowledge that Jacobs was not wearing a 

seat belt. There is no evidence trat King, prior to Enochs' 

issuance of the Order at issue, was in any position to have 

observed that Jacobs was not wearing a belt. Having observed 

Miller's demeanor, I find his testimony credible, that on 

August 16, he had only been at the site for approximately ten 

minutes prior to Enochs' issuance of the Order, and had not 

observed Jacobs being without a belt. When Enochs observed 

1615 
Jacobs being without a belt he was 10 yards closer to Jacobs than 

Miller. There is no evidence that, Miller was in any position to 

have observed that Jacobs was not wearing a seat belt. I note 

Enochs' testimony that King had received a special warning, and 

training from MSHA regarding the need to ensure the compliance at 

the site with the seat belt standard. However, this testimony 

was not based upon Enochs personal knowledge, but rather was 

based upon statements of another inspector made to him. Because 

of the inherently unreliable nature of heresay testimony I do not 

assign any probative weight to Enochs' heresay testimony, in 

evaluating the critical issue of REB's unwarrantable failure. 

For the same reason, I do not assign any probative weight to 

Enochs' and St. Laurent's testimony about out of court statements 

made by Jacobs and Yates concerning the attitude of their 

supervisors regarding the use of seat belts, and the policy of 

REB in this area. On the other hand, I find, as discussed above, 

(.IY(c) infra), that the credible evidence establishes that REB 

had indeed poste,d in its office information regarding the 

requirement for its employees to wear seat belts while on the 

job. Miller indicated that prior to the date of the Order at 

issue, in his capacity as lead-man, he had not enforced seat belt 

rules as he did not want to be hard on the men. However, the 

record does not establish that Miller, on the date the Order at 

issue was issued, had any official duties or responsibilies 

toward enforcing compliance with the mandatory seat belt 

standard. Within this context, I find that it has not been 

established that the violation was the result of REB's 

unwarrantable failure. 

D. Penalty 

I find. that REBs negligence was no more than moderate. 

I find that a penalty of $500 is appropriate. 

E. Section llO(c) violations. Docket Nos. CENT 95-239-M. 

and CENT 95-240-M) 

1. The Legal Standard to be Applied 

Section 110(c) of the Act subjects certain individuals to 

civil penalties if the Secretary .can sustain his burden of 

proving that: (1) a corporate operator committed a violation of a 

mandatory health or safety standard (or an order issued under the 

1616 
Act); (2) the individual was an officer, director, or agent of 

the corporate operator; and (3) the individual ~knowingly 

authorized, ordered, or carried out" the violation. 

A violation by the corporate operator must be established 

and such violation must be proved in the proceeding against the 

individuals. Kenny Richardson, 3 FMSHRC 8, 10 (January, 1981), 

aff'd sub nom. Richardson v. Secretary of Labor, 689 F.2d 632 

(6th Cir. 1982), cert. denied, 461 U.S. 928 (1983). The 

Secretary also has the burden of proving that the person charged 

is an agent of the corporate operator. Under Section 3(e) of the 

Act "agent" is defined as "any person charged with responsibility 

for the operation of all or part of a coal or other mine, or the 

supervision of miners in a coal or other mine." 

Finally, the Secretary must prove that the agent "knowingly 

authorized, ordered or carried out" the violation. The 

appropriate legal inquiry in this regard is whether the corporate 

agent "knew or had reason to know" of the violative condition. 

Roy Glenn, 6 FMSHRC 1583, 1586 (July 1984), citing Kenny 

Richardson, 3 FMSHRC 8, 16 (January 1981). In Kenny Richardson, 

the Commission stated: 

If a person in a position to protect employee safety 

and health fails to act on the basis of information 

that g:i.ves him knowledge or reason to know of the 

existence of a violative condition, he has acted 

knowingly and in a manner contrary to the remedial 

nature of the statute. 3 FMSHRC supra, at 16. 

In order to establish section llO(c) liability, the 

Secretary must prove only that the individuals knowingly acted, 

not that the individuals knowingly violated the law. Beth Energy 

Mines. Inc., 14 FMSHRC 1232, 1245 (August, 1992). In ~oy Glenn, 

6 FMSHRC 1583 (July, 1984), the Commission held, however, that 

something more than the possibility of an underlying violation 

must be shown to establish "reason to know". 6 FMSHRC at 1587-8. 

Moreover, a "knowing" violation requires proof of aggravated 

conduct and not merely ordinary negligence. Wyoming Fuel Co., 

16 FMSHRC 1618, 1630 (August, 1994). 

1617 

· .. ' 
a. Miller 

Miller testified that on the date in issue, he was only a 

nlead man" (Tr. 175), and did not become the quarry supervisor 

until September 1995. He was asked whether he was Jacob's 

supervisor and he answered as follows. ttI guess you can call me 

that, yes, sir" (Tr. 176). Miller indicated that he did verbally 

discipline the men working on the top of the highwall. Also, he 

indicated that it was his responsibility, in addition to 

operating the equipment on the top of the highwall, to transmit 

to the men the directions he had received from his supervisor, 

(King), regarding the tasks to be performed on the site. He 

indicated that he did not have the authority to hire and fire, 

was not told what to do regarding disciplining the men at the 

site, and did not assign equipment to the men. Petitioner has 

not rebutted or impeached this testimony. 

I find that Petitioner has failed to adduce sufficient 

evidence to est~blish that Miller had any significant 

responsibility fbr the operation at the highwall, or that he 

supervised the other miners working at that site. There is no 

evidence whether he was paid as an hourly employee, or as part of 

management. There is no evidence regarding any description of 

his official duties and responsibilities. There is no evidence 

that he had any direct responsibility for controlling the acts of 

the miners on the highwall, that he had the authority to initiate 

the assignment to them of their tasks, that he was responsible 

for their performance and duties, that he had the responsibility 

to discipline them if they did not perform their duties properly, 

that he was responsible for the safety of the miners and their 

operation, or that he was responsible to ensure that the 

mandatory safety standards were complied with by the men at the 

highwall. Within this context, I conclude that the Secretary has 

not met his burden in establishing that Miller was an '~agent". 

Accordingly, I find that Petitioner has not established that 

Miller violated Section llO(c) of the Act. 

b. Berry 

Berry was the owner, principal stockholder, and President of 

REB on the date in issue. He thus was an officer and came within 

the purview of Section llO(c), supra. It is incumbent upon the 

Secretary to establish that Berry knew or had reason to know of 

1618 
the violative condition (Roy Glenn, supra.) There is no evidence 

that he had any information that gave him any knowledge or reason 

to know that Jacob was not wearing a seat belt. (See, Kenny 

Richardson, supra at 16). For the reasons discussed above, 

(IV (C) infra,) I find that as President, Berry's policy toward 

the wearing of seat .belts was manifested by the posting of 

material informing employees of their responsibility to wear 

seat belts. 3 I observed Berry's demeanor. I find his testimony 

credible that although he personally feels that a person has the 

right not to wear a seat belt, he does not condone not wearing a 

seat belt. I also accept his testimony that on five or six 

different occasions when he saw employees not wearing a seat 

belt, he told them to put on a seat belt and warned them that 

they would be sent home the next time they were found to be 

without a seat belt . 4 

Within the context of the above evidence I find that it has 

not been established that Berry knew or reasonably should have 

known that Jacob was not wearing a seatbelt when cited. Nor is 

there sufficient evidence of aggravated conduct on his part. For 

these reasons, the llO(c) action against him shall be dismissed. 

YI.. Order No. 4327625. 

A. Violation of Section 56.14130(g), supra. 

3Berry's testimony that REB has employees sign its safety 

policy (Defendant's Ex. 28) when they start to work for REB, was 

not impeached or contradicted. I therefore accept this 

testimony. I note that this policy requires that seat belts "be 

worn at all times of vehicle operation" (Defendant's Ex. 28). 

4REB's official policy provides that the first offence of a 

failure to comply with the policy to wear a seat belt, will 

result in "remainder of day of violation off without pay" . (Defendant's Ex. 28). Berry's action in warning, but not 

discipline the employees he had caught not wearing· a seat belt 

might lead to an inference that REB has been unduly lax in not 

discipline employees for not wearing a seat belt. However, since 

Berry did issue a warning, I cannot conclude that Berry's conduct 

is to be equated with aggravated conduct, nor can it be the basis 

of a Section 110(c) action. 

1619 
Approximately one hour after Enochs had cited the bulldozer 

operator for not wearing a seat belt, he observed Jim Farrish 

operating a John Deere bulldozer, but not wearing a seat belt. 

According to Enochs he was at a forty five degree angle facing 

the bulldozer. Enochs indicated that when he was sixty to 

seventy feet away from Farrish, and approximately six to eight 

feet above the ground that Parrish's bulldozer was being operated 

on, he saw that Farrish was not wearing a seat belt. Enochs 

issued an Order alleging a violation of Section 56 . 14130(g) 

supra, which requires the wearing of seat belts. 

Miller indicated that he spoke with Farrish later on that 

afternoon, and Farrish informed him that he had the seat belt 

on, but that he undid it when he saw Enochs approach him. I find 

this heresay testimony inherently unreliable, and insufficient to 

rebut or contradict Enochs' testimony regarding his observations. 

There is no other evidence of record to contradict Enochs' 

testimony regarding his observations. I thus find that REB did 

violate Section 56.14130(g) supra, as alleged. 

B. Significant and Substantial 

According to Enochs, the bulldozer in question was being 

used to cut a ramp, and was being operated down an incline. He 

said that, when cited, Farrish was "very close to a steep 

incline" (Tr. 229). He described the area as consisting of 

"unconsolidated material, very steep drop off" (sic) (Tr. 230). 

Enochs opined that in the event the bulldozer would travel over 

the ''hill" the operator would definitely be severely injured 

(Tr. 231) . 

Respondent did not offer any evidence to impeach Enochs' 

testimony with regard to his observation of the terrain, and his 

opinions regarding the likelihood of an injury producing event,· 

and the seriousness of any resulting injur-Y. ·I thus find, 

based on the testimony of Enochs, that an injury producing event 

was likely to have occurred, and that there was a reasonable 

likelihood that the driver would have been injured as he was not 

wearing a seat belt. There was also no contradiction or 

impeachment of Enochs' testimony that the resulting injury would 

reasonably likely have been perman~ntly disabling. I thus find 

that it has been established that the violation was significant 

and substantial (See Mathies, supra) . 

1620 
C. Unwarrantable Failure 

Enochs indicated that the instant Order was the fourth 

Citation/Order that he had issued that morning involving not 

wearing a seat belt. He indicated that the violative condition 

was obvious, and that no corrective action was being taken by 

management. Petitioner did not adduce any evidence that, 

subsequent the issuance of the other seat belt violations by 

Enochs, King had any opportunity to check whether other employees 

were wearing their seat belts. There is no evidence regarding 

King's actions subsequent to the first set of seat belt citations 

and orders issued. There is no .evidence regarding his activities 

between the time the first Citations/Orders were issued, and the 

issuance of the instant order. 

According to St. Laurent, Yates, had told him that in the 

year prior to the instant inspection he never saw the two 

bulldozer operators wearing their seat belts. St. Laurent 

testified that he asked Yates if efforts were made to make 

employees wear seat belts, and Yates told him that when he was 

hired, no one told him to wear a seat belt. St. Laurent 

testified that Yates also told him that he did not recall anyone 

yelling at anyone else to put a seat belt on. St. Laurent 

testified that he asked a Mr. Cunningham, a plant operator who 

also operated equipment, about seat belts and the latter told him 

that "what the normal posture was there is that if a guy wanted 

to wear them, fine, and if he didn't then that was okay, too" 

(Tr.246}. 

For the reasons stated above, (Y(c} infra}, I find the 

heresay testimony of St. Laurent regarding what Yates and 

CUnningham told him to be inherently unreliable. I thus do not 

assign it any probative value in evaluating the critical issue of 

REB's unwarrantable failure, if any. I note that neither Yates 

nor CUnningham was called by Petitioner to testify. Within the 

above context, I find that it has not been established that this 

violation was as the result of REB's unwarrantable failure. I 

find that a penalty of $500 is appropriate. 

1621 
D. llO(c) violations 

1. Miller 

For essentially the reasons set forth above, (Y(E) (a) 

infra}, I find that it has not been established that Miller was 

liable under Section llO(c) of the Act, and hence that action 

against him shall be dismissed. 

2 . Berry 

I find that the heresay testimony o.f St. Laurent with 

regard to out of court statements by Yates and Cunningham is 

insufficient to establish Berry's liability under Section llO(c } 

of the Act. Further, for the reasons set forth above, (Y(E) (b) 

infra ), I find that Petitioner has failed to establish any 

liability on Berry's part under Section llO(c) of the Act. 

Therefore that action against him shall be dismissed. 

VII. Citation No. 432762~ 

On August 6, Enochs observed a track mounted trackhoe 

operating in the stripping area. He said that this equipment is 

used for excavating dirt, is track mounted, and rotates and 

revolves. He said that the front and side window on the right 

side was "cracked in several places" (Tr. 217), and that the 

driver's vision would be obscured. He described the breakage as 

being "pretty extensive throughout the whole panel" (Tr. 221). 

Enochs issued a Citation alleging a violation of 30 C.F.R. 

§ 56.14103(a) supra, which provides, as pertinent, that if 

windows are provided on self-propelled mobile equipment, "[t]he 

windows shall be maintained to provide visibility for safe 

operation. " 

REB did not offer any evidence to contradict Enochs' 

testimony regarding his observation~ . I therefore accept Enochs' 

testimony, and find that REB did violate Section 56 . 14103(a) 

supra. I find that a penalty of $50 is appropriate. 

Y.l.ll.. Order No. 4327626. 

On August 16, Enochs observed a Case backhoe being operated. 

1622 
According to Enochs it was being used as a loader, as it had a 

bucket on the front. He s~id that King had told him that it was 

being used to clean spilled material. Enochs said the backhoe 

was equipped with wheels, had a loader bucket in front, and a 

backhoe bucket in the back. He opined that it was a combination 

loader/backhoe. According to Enochs, the vehicle was not 

provided with a seat belt. 

On cross examination Enochs indicated that a wheel loader is 

different than a backhoe, and that the vehicle in question was in 

use when he inspected it. 

Enochs issued an Order alleging a violation of 30 C.F.R 

§ 56.14130(a) (3) which provides, in essence, ·that seat belts 

shall be installed on "wheel loaders and wheel tractors". 

It is incumbent upon Petitioner to establish that, as 

commonly understood in the mining industry, a reasonably 

prudent person familiar with the industry, the terms "wheel 

loaders" or "wheel tractors" encompass the vehicle in question. 

Enochs' opinion that the vehicle was a combination loader/backhoe 

is not accorded much weight, as he did not set forth in detail 

the basis for his opinion. Further, aside from this opinion 

Petitioner has not proffered any evidence as to how the terms 

"wheel loader" or wheel tractor" are commonly understood in the 

mining industry. For these reasons, I conclude that Petitioner 

has failed to meet his burden, and that this Order shall be 

dismissed. 

l..X. Order No. 4327628. 

Enochs indicated that on August 16, at about 12:00 p.m., he 

was on a walkway which was approximately ten feet above where a 

loader was being operated. Enochs noted that his poi~t of 

observation was approximately twenty feet removed from the 

loader. Enochs testified that he saw the driver, Ron Alexander, 

drive under him. Enochs said tha't he saw Alexander's hands on 

the loader's controls. According to Enochs, Alexander then 

turned off the loader, did not unbuckle his seat belt, and 

climbed out of the loader. According to Enochs, the loader was 

being used to load material from a stock pile. Enochs issued an 

Order alleging a violation of Section 56.14130(a) (3) supra. 

1623 
Based upon Enochs' testimony that I find credible, and that 

was not contradicted by any other eyewitness, I conclude that 

Alexander was not wearing a seat belt when cited by Enochs. 

However, there is no evidence in the record that a seat belt had 

not been installed on this vehicle. Accordingly, I find that it 

has not been established that REB was in violation of Section 

56.14130(a) (3), which provides that seat belts shall be installed 

on loaders. Hence , Order No. 4327628 is to be dismissed . 

x. Order No. 4327631. 

A. Violation of 30 C.F.R. § 56.14107(a) 

According to Enochs, on August 16, 1994, he observed that 

there was no guard at the tail pulley of the radial stacker 

conveyor belt. According to Enochs, the belt was in operation, 

and the pinch point of the tail pulley which was not guarded, was 

approximately two. feet above the ground . Enochs issued an Order 

alleging a violation of 30 C.F.R. § 56 .l4107(a) which, as 

pertinent, provides that "[m)oving machine parts shall be guarded 

to protect persons from contacting gears, . . . chains, drive, 

head, tail, and takeup pulleys, . . . and similar moving parts 

that can cause injury." 

REB did not prof fer the testimony of eyewitnesses to 

contradict or impeach the observations of Enochs. REB's defense 

appears to be based upon 30 C.F.R. § 56.l4107(b) which provides 

that guards are not required where the exposed moving parts "are 

at least seven feet away from walking or working surfaces". In 

this connection, REB elicited from Enochs, on cross-examination, 

that the unguarded tail pulley was not located in the normal path 

of travel. Berry indicated that there was no reason to go to the 

cited area, except to perform maintenance on the belt. In that 

event, the belt would not be in operation. 

I note Enochs' testimony that 'there was nothing to restrict 

access to the unguarded tail pulley which was located only two 

feet above the ground. The ground was the surface upon which men 

~ walk or work. Accordingly, the terms of the exception set 

forth in Section 56.l4107(b) supra, has not been met. I thus 

find that REB did violate Section 56.14107(a) supra . 

1624 
B. Significant and Substantial 

In essence, Enochs concluded that the violation was 

significant and substantial, inasmuch as the pinch point was 

exposed, and there were no barriers or signs warning persons of 

this condition. Enochs opined that a person could easily get 

caught up in the self-cleaning pulley which was not smooth. 

According to Enochs, the pulley was located behind an exit door, 

and was in a "natural traffic walkway area" (Tr. 277) . However, 

he did not elaborate with sufficient specificity the basis for 

this opinion . Enochs opined that should an injury occur as a 

result of the v i olative condition, it would be at least 

permanently disabling. 

On the other hand, Berry opined that there was no reason to 

walk in the cited area. Berry indicated that, in exiting the 

shop, the path taken to other parts of the plant would not place 

a person within twenty five, or thirty feet of the pulley. He 

also was not aware of any injuries at this site. 

Within the context of this evidence, I conclude that it has 

not been established that an injury producing event was likely to 

have occurred. Accordingly, I find that it has not been 

established that the violation was significant and substantial. 

C. Unwarrantable Failure 

Enochs testified, in essence, that his conclusion that the 

violation was as a result of REB's unwarrantable failure, was 

based upon the fact that King was given a handbook by MSHA 

setting forth the need for guarding. For the reasons set forth 

above, (l.Y(c) infra), I do not assign any probative value to this 

heresay testimony. I thus conclude that it has not be~n 

established that the violation herein was as a result of REB's 

unwarrantable failure. 

D. Penalty. 

The tail pulley in question was self-cleaning, and was 

located only two feet above the ground. REB did not contradict 

1625 
Enochs' testimony that the unguarded self-cleaning pulley can 

grab a person's clothing, and wrap a person up in th~ tail 

pulley. I thus conclude that the gravity of the violation was 

relatively high. I find that a penalty of $500 is appropriate 

for this violation. 

XI.. Citation No, 4327632 

On August 16, Enochs observed that there was an unguarded 

V-belt drive on the simplicity belt vibratory screen. He 

indicated that the V-belt drive was approximately three feet 

above the walkway. The pulley itself was located about twenty 

feet off the ground. Enochs issued a Citation alleging a 

violation of Section 56.14107(a) supra. 

REB did not of fer the testimony of any witness to impeach or 

contradict Enochs' observations. Accordingly, I find that it has 

been established that the drive belt was not guarded, and that 

someone could be caught in the belt drive. I find that the 

unguarded pinch point was located three feet above the walkway. 

Although the pulley was twenty feet above the ground, I find that 

the exception set forth in Section 56.14107(b) supra, does not 

apply, as the unguarded pinch point was three feet above a 

surface where persons ~ walk. I thus find that it has been 

established that REB did violate Section 56.14107(a) supra. I 

find that a penalty of $50 is appropriate. 

X.I..I.. Citation No. 4327633. 

Enochs observed that the V-belt drive of a thirty horse 

power vibratory shaker drive belt, was not guarded. He indicated 

that the belt machine and pulley were located along the walkway, 

but probably fifteen feet off the ground . REB did not impeach or 

contradict his testimony. I find, consistent with the 'discussion 

above (Xl infra,) regarding Citation No. 4327632, that REB did 

violat~ Section 56.14107(a) supra, and that the exception set 

forth in Section 56.14107(b) supra, does not apply. I find that 

a penalty of $50 is appropriate for this violation. 

ORDER 

It is ORDERED as follows: (1) Order Nos. 4327626, and 

4327628, and Citation No. 4327635, and Docket Nos. CENT 95-239 

1626 
and 95-240 shall be DISMI SSED; (2) Citation No. 4327776 and 

Or der Nos . 4327622 and 4327631 shall be amended to Section 104(a) 

citations, and Order No . 4327625 shall be amended to a Section 

104 (a) Citation that is significant and substantial; and (3) that 

Respondent shall, within 30 days of this decision pay a total 

civil penalty of $2,400. 

Distribution : 

Avram Weisberger 

Administrative Law Judge 

Daniel J. Haupt, Conference & Litigation Representative, 

Mine Safety & Health Administration, U.S. Department of Labor, 

1100 Commerce Street R4C50, Dallas, TX 75242-04299 (Certified 

Mail) 

Jack Ostrander, Esq . , Office of the Solicitor, 

U.S. Department of Labor, 525 S. Griffin Street, Suite 501, 

Dallas, TX 75202 (Certi fied Mail) 

James E. Crouch, Esq., Cypert, Crouch, Clark & Harwell, 

P.O. Box 1400, Springdal e, AR 72765 (Certified Mail) 

/ml 

1627 
FEDERAL KINE Sl\J"ETY AND HEALTH REVIEW COKKISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303-844-5268 

SEP 5 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY WEST MINING COMPANY, 

Respondent 

. . 

. . CIVIL PENALTY PROCEEDING 

Docket No. WEST 95-258 

A.C. No. 42-01944-03649 

Cottonwood Mine 

DBCISION 

Appearances: Robert Cohen, Esq., Office of he Solicitor, 

U.S. Department of Labor, Arlington, Virginia, 

for Petitioner; 

Timothy M. Biddle, Esq., Lisa A. Price, Esq., 

Crowell & Moring, Washington, D.C., 

for Respondent. 

Before: Judge Cetti 

This case is before me upon a petition for assessment of 

civil penalties under sections lOS(d) and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seg. the "Mine 

Act." The Secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges Energy West Mining Company 

(Energy West) with the violation of the mandatory safety standard 

JO C.F.R. § 75.202(a). Energy West is the operator of the 

Cottonwood Mine, an underground coal mine, located in Emery 

Gounty in Southwestern Utah. 

MSHA issued the single citation in question after its 

investigation of a "coal outburst" or "bounce" 1 which occurred 

in the 4th left working section of the Cottonwood Mine on May 16, 

1994, at approximately 12:38 p.m: in a large uncompleted proposed 

The terms "coal outburst" and "pillar bounce" for purposes 

of this decision are used interchangeably and essentially mean the 

same condition. The Dictionary of Mining, Mineral and Related 

Terms defines a bounce: a. a sudden spalling off of the sides of 

ribs and pillars due to excess pressure; a bump. (United 

States Bureau of Mines), 1967 Edition. 

1628 
pillar. The pillar was not fully formed by completion or mininq 

of surroundinq entries and crosscuts. (Tr. 421). 

There was a mininq crew workinq in the section, but no 

miners suffered any injuries as a result of the bounce. Nevertheless, because ventilation on the section was disrupted and 

production stopped more than an hour, MSHA was notified of the 

incident. MSHA Inspector Baker was at the mine at the time the 

bounce occurred on May 16, 1994~ and immediately went to the 4th 

left section to investiqate. Baker did not issue a citation at 

that time but did issue the citation in question a full two weeks 

later on June 1, 1994. The citation alleges a violation of 30 

C. F. R. S 75.202(a) which provides as follows: 

30 C.F.R. S 75.202 Protection from falls of 

roof, face and ribs: 

(a) 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. 

II 

ISSUES 

The Petitioner in his post-hearing brief states the issues 

for decision as follows: 

1. Did the Secretary establish that a 

reasonably prudent person familiar with the 

coal mining conditions at the Cottonwood Mine 

would have provided additional measures to 

prevent bounces in 4th left section? See the 

Commission's decision in Canon Coal Company, 

9 FMSHRC 667 (1987). 

2. Did the evidence establish that Energy 

West violated 30 CFR 75.202(a) at the 

Cottonwood Mine because the operator failed . to take adequate roof and rib support destressing measures in the 4th left section, 

an area prone to "bounces" and "coal 

outbursts"? 

3. Can the Secretary establish a 

violation of 30 CFR 75 . 202(a), even if there 

is no evidence that Energy West violated its 

approved roof control plan? 

1629 
4. If the evidence established that 

Energy West violated 30 CFR 75.202(a), what 

is the appropriate amount of civil penalty 

that should {be) assessed by the presiding 

Administrative Law ·Judge? 

STIPULATIONS 

1. Energy West and its Cottonwood Mine are subj ect to the 

Federal Mine Safety and Health Act. 

2. The Commission has jurisdiction over thi s proceeding. 

3. The citation at issue was issued by an authorized 

representative of the Secretary and was properly served on an 

agent of Energy West. 

4. The citation was abated in good faith. 

5. Energy West, cottonwood Mine, is a large underground 

coal mine . · 

6. Energy West's ability to continue in business will not 

be affected by an assessment of a reasonable civil penalty if the 

Secretary proves a violation in this case. 

IV 

BACJCGROUND 

Energy West's Cottonwood Mine is an underground coal mine 

located under East Mountain in southwestern Utah. At the time of 

the May 16th bounce which resulted in the citation, the cottonwood Mine employed 225 hourly workers, represented by the United 

Mine Workers of America ("UMWA"), and 60 management personnel. Cottonwood produced 3. 5 mi llion tons of clean coal in 1994. 

The Cottonwood Mine is a "multi-seam" mine. Energy West's 

Deer Creek Mine lies 85-110 feet above the Cottonwood 'Mine workings. The amount of "overburden," or cover, over the Cottonwood 

mine ranges up to 2,100 feet. The cover in the area where the 

bounce occurred, the 4th left section, was approximately 1,600 

feet. 

Energy West mines the coal from Cottonwood Mine with long- wall equipment. To prepare for set-up of the lonqwall unit, 

continuous mining machines develop gate entries, or roads, off a 

main line, outlining a solid block of coal to be mined by the 

lonqwall mining equipment. In the Cottonwood Mine, these solid 

blocks of coal, or lonqwall panels, range from 600-750 feet in 

1630 
width and can vary from 1,500 to 5,ooo feet in length. After the 

longwall equipment is set up at the end of the qateroads, a shear 

cuts coal along the face of the panel. It takes approximately 

four months for lonqwall equipment to mine the entire block of 

coal between the gateroads, producing about soo,ooo tons of coal. 

Cottonwood began development of the main entries ("mains") 

in Second North in 1990. As the mains were developetl, continuous 

mining machines also developed "neck-offs" to begin qateroads for 

future longwall panels on both the east and west, or right and_ left, sides off Second North. 

These neck-offs were started at the same time as the main 

entries to create space for future construction when Cottonwood 

was ready to begin lonqwall mining in the panels intersecting 

Second North. The neck-off areas off the mains of Second North 

were rooms separated by pillars of coal for support. They were 

the beginning of development of gateroads for future longwall 

panels and were necessary to allow access to complete necessary 

ventilation work and belt drive installation for future mining. 

(See Ex. R-2). 

The neck-off areas had three entries with 100-foot pillars 

separating the entries. Because lonqwall gateroads must only 

have two entries adjacent to the coal to be cut with longwall 

equipment, the three neck-off entries were later reduced to two 

gateroad entries. Once narrowed to two entries, two large 

pillars, 50' by 100 1 , separated the gateroad entries. There were 

no significant differences in the layout of each neck-off area on 

the east and west sides of Second North. Solid coal lay beyond 

the place where three entry mining stopped in each neck. 

The Second North main entries in Cottonwood Mine were 

directly under old mains in the Deer Creek workings above . At 

the time Second North was developed in Cottonwood, the areas 

above in Deer Creek had already been mined and were not active. 

Since the Second North mains had to remain open during longwall 

mining for ventilation, for a conveyor belt, and for transportation of material and miners, a protective 400-foot "barrier" of 

solid coal paralleled the mains on both sides of Second North. A 

similar barrier lay directly above in the Deer Creek works. 

- Development of the panel neck-offs in Cottonwood's Second 

North required mining under the Deer Creek barrier. Carl 

Pollastro, the Mine Manager and General Superintendent testified: 

"Any time that mining penetrates these barriers, there is stress 

that's induced by virtue of this barrier and the mining pressures 

that are transferred from the works above." This stress or 

pressure is a naturally occurring consequence of multi-seam 

mining. Crossing under the Deer Creek barrier while developing 

panel neck-offs as occurred in Second North was a common practice 

for Cottonwood; for example, the development of the neck-offs in 

1631 
First North involved "at least 11 penetrations of the barrier," 

with the same type of pillar layout and entry configuration as in 

Second North. There were about 25 development sections in Cottonwood with similar configurations that involved multi-seam 

mining. Once gateroad development progressed past the barrier, 

the pressures caused by barrier penetration dramatically decreased. 

After the Second North mains and the longwall panel neckof f s were developed. Cottonwood began the second stage of 

development; extending two-entry gateroads from the neck-offs for 

the full length of each successive panel. This work began in 

each panel with the neckdown from three entries to two entries. 

The 8th left and 9th left panels were the first in Second 

North to be fully developed and retreated with the longwall unit, 

with 10th right, 11th right and 12th right following thereafter. 

Mining then moved to the remaining panels on the right or east 

side of Second North, with gateroad development and longwall 

retreat mining starting with 8th right and proceeding south to 

each panel below until all the longwall panels on the east side 

in Second North (8th to 1st) were mined. 

By the end of January 1994, mining was ready to resume on 

the west side of Second North. The 6th left gateroads were the 

first scheduled to be developed for longwall mining. As mining 

began in the neck-off area in 6th left, roof falls and rib 

bounces occurred in the entries that had already been developed. 

aecause of safety concerns and logistical convenience. Two new 

entries were developed to the south of the previously developed 

entries in the 6th left original neck-off so the unstable area 

would not have to be traveled. Thus, the 6th left entry and 

pillar configuration in the neck-off area was slightly different 

than the remaining panels on the west side of second North . 

v 

As the neck-down to two entries continued in 6th left, it 

became apparent that Deer Creek barrier pressure was causing roof 

and rib stability problems in that area. As a result, Kevin 

Tuttle, then Chief Safety Engineer at the Cottonwood Mine and 

Carl Pollastro, then Manager and General Superintendent at the 

Cottonwood Mine, met with James E. Kirk, then Acting Subdistrict 

Manager of the MSHA Subdistrict Office in Price, Utah, to discuss 

steps that could be taken .to reduce or eliminate outbursts of 

ribs and roof falls. Mr. Kirk and Blake Hanna, an MSHA roof 

control expert, visited Cottonwood to observe the roof conditions 

caused by the overlying Deer Creek barrier. The discussions 

between Cottonwood and MSHA at this time focused on the safest 

way to continue gateroad development in 6th left, while future 

panels in Second North were mentioned, no proposals for these 

panels were made at this time. 

1632 
VI 

In light of the roof control difficulties in 6th left and 

knowing the Deer creek barrier also would have to be crossed 

during gateroad development in the 5th, 4th, 3rd, and 2nd left 

panels, Cottonwood management met with the hourly workers in crew 

meetings to discuss additional safeguards to minimize the hazards. A particular concern involved the pillars in-neck-off 

sections previously developed in 1991 along Second North to allow 

for subsequent longwall mining. As development proceeded in 

future second North panels under the Deer Creek barrier, it was 

believed important to take measures to "soften" the 1991 pillars 

so they would not build up pressures caused by penetration under 

the Deer Creek barrier. Cottonwood's management decided that the 

1991 pillars in the remaining Second North neck-offs should be 

notched to make them smaller and more likely to yield as they 

absorbed overburden pressure. 

"Notching" a pillar means cutting enough coal out of the 

center of a pillar to allow the release of the stress that 

naturally and dynamically builds in a pillar as active mining 

around it forces it to absorb overburden pressures. A notched 

pillar converges upon itself in a controlled manner so that the 

likelihood of a ·sudden outburst of coal or "bounce" is reduced. 

Pillar notching can be hazardous depending on the cj.rcumstances, 

but those hazards can be minimized by limiting the number of 

miners near the pillar while the notch is being cut. 

Reduction of pillar size through notching created potential 

for small outbursts, but such activity was a positive sign since 

it indicated that the pillar was yielding effectively and in a 

controlled manner. 

VII 

THE PILLAR NOTCH PLAN 

Having decided that notching the remaining 1991 pillars in 

Second Nor.th was necessary to protect the miners, Cottonwood's 

management formulated a pillar notch plan to supplement its 

approved roof control plan and asked the Union to review it. 

Cottonwood incorporated several Union suggestions into its notch 

plan and the Union approved it. Cottonwood then submitted the 

notch plan to MSHA on February 2 ,· 1994, as an amendment to its 

roof control plan. The plan was accompanied by a cover letter 

summarizing it. (Ex. G-3). 

The notch plan provided that the pillars created in 1991 

during the development of Second North mains would be notched to 

relieve stress before further development of gateroads for 

longwall panel s. The plan was detailed; it contained four pages 

of text and diagrams specifically outlining the procedures to be 

1633 
followed for notching the 1991 pillars in the 5th, 4th, 3rd, and 

2nd Left section in Second North. Additionally, the plan included a diagram of the west side of Second North and detailed diagrams for the development of the gateroads in the 5th, 4th, 3d 

and 2d left sections. Those aiagrams showed that notches also 

were to be cut in the "new" and smaller pillars to be created as 

the three gateroads in the neck-offs angled down to two gateroads. The new pillars showing notches on the plan diagrams were 

to be the last pillars under the Deer Creek barrier and Cottonwood believed it prudent to notch these new pillars after they 

were formed, using the same notching process as used for the 1991 

pillars and for the same reason, to relieve overburden pressure. 

The notches in the 1991 pillars in the 5th through 2nd left 

sections were to be cut 40' deep into the center of the pillar, 

because they were to be smaller, the newly developed pillars were 

to have 30' notches into their centers (Ex. G-3, Tr. 266-67). 

Neither the notch plan nor the cover letter summarizing it specified any particular time for notching during the process of 

mining, neither in terms of which of the 1991 pillars would be 

notched first, nor when new pillars would be notched during the 

gateroad development process. (Ropchan, Tr. 182; Pollastro, 265-

266, 324). 

There was conflicting use of the word "sequence" at the 

hearing. "Sequence" can refer to the order in which particular 

pillars were to be notched. (Tr. 421). "Sequence" of notching 

could also ref er to whether a notch in a new pillar was to be cut 

before or after the pillar was fully formed by completion of 

mining of surrounding entries and crosscuts. Under either definition, there was no sequence specified in the notch plan. 

v:r:r:r 

THE CONFERENCE CALL 

MSHA and Cottonwood agreed to a conference call on February 4, 1994, to discuss the notch plan. Kevin TUttle,· Cottonwood's Chief Safety Engineer, went to the MSHA Subdistrict Office 

in Price, Utah, where he joined Tony Gabossi, MSHA's subdistrict 

Manager. Tuttle and Gabossi called the MSHA District Office in 

Denver, where several MSHA representatives had gathered to discuss the plan. The MSHA officials in Denver who participated in 

the conference call were Bill Holgate, MSHA's District Manager, 

and Jerry Taylor, an MSHA engineer, as well as several officials 

from MSHA's Technical Support, Safety and Health Technology 

Center, including Sid Hansen, engineer, and David Ropchan, 

engineer. 

During the conference call, MSHA officials wanted several 

additions to the notch plan before approving it. Specifically, 

MSHA required that 20' of roof exposed in each notch be 

1634 
permanently bolted. Further, MSHA required that additional roof 

support,. in the form of timbers or square sets, be installed in 

the entry where a notch would be started. Nothing was added to 

the plan about when the notches would be cut in either the 1991 

pillars or in the new pillars to be created during gateroad 

development. Mr. Tuttle immediately made the MSHA required 

changes to the notch plan and faxed them to the MSHA District 

Off ice. The notch plan was approved by District Manager Holgate 

by letter on February 4, 1994, the day the conference call 

occurred. (See Ex. G-3). 

IX 

THE IKPLBKBNTATION OF NOTCH PLAN IN STB LEFT SECTION 

Shortly after the notch plan was approved by MSHA on February 4, 1994, Cottonwood implemented the plan in 5th left of 

Second North. (Ex. R-3; Tr. 268). The 1991 pillars were notched 

according to the notch plan. (Ex. G-3 at 6, R-3). The #1, #2 

and #3 gateroad entries were developed under the general mine 

plan. (Tr. 321). Once the entries proceeded far enough for the 

#5 crosscut, the crosscut was mined from the #1 entry to break 

through at the #2 entry. (Tr. 270). After a new pillar came 

into existence between crosscuts #4 and #5, it was notched as 

shown in the 5th left diagram attached to the plan. Since there 

were no reportable bounces or significant roof falls during the 

notching in 5th left, Cottonwood considered its notching technique a success in controlling the pressures exerted by the overlaying Deer Creek barrier. · 

MSHA did not monitor Cottonwood's implementation of the 

approved notch plan in 5th left and there was no evidence that 

there was any further communication between Cottonwood and MSHA 

about the plan or mining conditions until after the bounce in 4th 

left in May 1994 . 

There was evidence of only two events at MSHA connected with 

Cottonwood's notch plan between February 4, 1994, and May 16, 

1994, neither of which involved anyone from the company. First, 

almost six weeks after MSHA's approval of Cottonwood's pillar 

notch plan, Mr. Ropchan said he prepared a memorandum about his 

recollection of the subjects discussed in the February 4, 1994, 

conference call but he did not send a copy of his memorandum to 

anyone at Cottonwood or MSHA. (Ex. G-6; Tr. 174). Second, 

Mr. Hansen testified that sometime after the conference call he 

developed computer simulations to evaluate mining methods that he 

thought could be used to notch the pillars under the plan. (Tr. 

126). He used generic assumptions; he did not visit the Cottonwood Mine nor collect data about it to conduct this analysis. 

(Tr. 150) . Mr. Hansen never discussed the results of his analysis with Cottonwood, nor did he provide the company with a copy 

of his results. (Tr. 164). Mr. Ropchan and Mr . Hansen had no 

163 5 
further involvement in these issues. (Hansen, Tr. 98, 141; 

Ropchan, Tr. 181, 189). 

THE IKPLEKEN'l'ATION OP NOTCH PLAN, 4TB LEFT SECTION 

Gatewood development in 4th left, the panel imm'.ediately 

south of 5th left, commenced after the notch plan had been 

implemented successfully in 5th left. The layout of the 4th left 

section was identical to that in 5th left with respect to pillar 

size and configuration. The 1991 pillars in 4th left were 

notched successfully under the procedures established in the 

notch plan. New gateroad development began in 4th left precisely 

as it had in 5th left. The #1, #2 and #3 entries were driven up 

to the place where #5 crosscut was to be cut. (Tr. 273-74). on 

Friday, May 13, 1994, a minor, non-reportable bounce occurred 

along the north rib of the #1 entry. Supplemental timber support 

was set in the #1 entry near crosscut #4 . (Tr. 361). 

XI 

TBE'-. HAY 16TB BOUNCE IN 4TB LBPT SECTION 

on the morning of May 16, 1994, because the north rib of the 

#1 entry had been unstable the preceding Friday, Lester Jorgensen, shift foreman, instructed Leonard Reid, section foreman, to 

mine crosscut #5 from entry #2 to #1 to keep the miners away from 

the north rib of entry #1, even though mining the crosscut in 

this direction was against ventilation. Mr. Jorgensen wanted the 

crosscut mined in this fashion to protect the miners from a 

potential outburst from the north rib along the #1 entry. 

At the start of the day shift on May 16, 1994, the continuous mining machine was in the #2 entry in 4th left. The #5 

crosscut had been started from the #2 entry but could not be 

driven from the #2 to the ' #l entry as planned because the #1 

entry had not been entirely bolted by the end of the shift on the 

preceding work day. The floor of that entry was partially obstructed by sloughage from the bounce the preceding Friday; loose 

coal had been pushed toward the end of that entry and had to be 

removed before bolting could be completed . Under its mine plan, 

Cottonwood cannot break a crosscu~ through to an unbolted entry. 

(Tr. 429). The continuous miner was brought from the #2 entry to 

the #1 entry to clean the entry. After that task was completed, 

the continuous miner was moved to the #3 entry so the roof bolting machine could be set up in the #1 entry to bolt the roof in 

the remaining 35-40 feet still unbolted. (Tr. 368, 397). When 

the bolting was completed in the #1 entry, the continuous miner 

was to be brought to .the #2 entry to cut the #5 crosscut through 

to the #1 entry. After the #5 crosscut was bolted, and the ventilation established, the next step was to cut a notch in the 

1636 
newly created pillar between the #4 and #5 crosscuts as required 

by the notch plan. However, operations were interrupted when a 

rib bounce occurred at 12:38 p.m. The bounce blew coal from 

newly exposed ribs into the #1 entry, into the #4 crosscut and 

into the #2 entry for a short distance. Although a roof bolting 

crew was in #1 entry when the bounce occurred, no one was injured. (Tr • 2 7 7) • 

Although the outburst was an instantaneous release of 

pressure with considerable force there was little damage. (Tr. 

340). 2 The bounce was reported to MSHA because production was 

stopped for more than one hour, in most part due to the disruption to ventilation and the Company's investigation of the event. 

Carl Pollastro, the Mine Superintendent, was notified of the 

bounce by Leonard Reid and immediately went to 4th left to investigate. James Baker, an MSHA inspector, and Jan Lyall, an MSHA 

inspector trainee, were at the mine for a regular inspection when 

the bounce occurred and Mr. Pollastro told them about it. Inspector Baker and Mr. Lyall also went to 4th left. 

XII 

'l'JIB CITATION 

MSHA Inspector Baker inspected the area on May 16th right 

after the bounce and issued a 103(k) order to "contro[l) the area 

until [he] could complete an investigation." Later in the day 

Baker terminated the 103(k) order and allowed Cottonwood to 

continue developing the 4th left gateroads without any change in 

mining procedures. He allowed Cottonwood to complete the #5 

crosscut to define the pillar between the #4 and #5 crosscuts 

before cutting the notch into the newly created pillar. (Tr. 

92). Baker did not issue a citation on May 16, 1994, or during 

the following two weeks. 

Inspector Baker returned to the mine over the next two days 

to interview mine personnel and on May 19, 1994, accompanied 

Warren Andrews, of Denver Technical Support, who conducted a 

technical investigation of the bounce. Mr . Andrews took photos 

of the bounce area in 4th left and eventually prepar~d a report. 

Baker did not learn of Andrews' report for sever?l months. 

Mr. 

report. 

Baker prepared MSHA's official accident investigation 

(Ex. G-2). This report was released on October 7, 1994. 

2 The bounce knocked down the ventilation line curtain and 

dislodged approximately eight of the square set timbers set in the 

area on the previous Friday. (Tr. 346, 403). The concussion from 

the bounce also dislodged part of an overcast. (Tr. 276, 347, 

403). There was no damage to the roof. (Tr. 79, 346). 

1637 
Baker concluded that the block of coal bounded on three sides by 

the #1 and #2 entries and the #4 crosscut should have been 

notched prior to the bounce (Tr. 47), and before #1 entry was 

advanced to where it would intersect the #5 crosscut. However, 

Baker was unsure whether his ·suggested sequence of mining would 

have prevented a bounce; he believed "it may have prevented it. 

It may not." (Tr. 47-48). Baker could not conclude definitively 

that the actions of the mining crew in 4th left caused or affected the bounce in any way. (Tr. 84). 

On June 1, 1994, Mr. Baker, two weeks after his first investigation of the bounce, issued a citation to Cottonwood, alleging 

a violation of 30 c.F.R. S 75.202(a), not because of his conclusions about when the notch should have been cut but because, in 

his opinion, "no steps were taken to prevent the bounce that 

could have seriously injured those two roofbolters that were 

working in that #1 entry." (See Citation 3588448, Ex. G-1; Tr. 

48) . Had the roofbolters not been in the #1 entry when the 

bounce occurred--for example, if the bounce had occurred when no 

work was being done, or if the roofbolters had been elsewhere at 

the time of the bounce--Baker would not have issued any citation 

for the bounce . . It is undisputed that no violation of cottonwood's roof control plan occurred. 

XIII 

THE ABATEKBNT 

To abate the citation, MSHA required cottonwood to submit a 

revised notch plan. The revised plan limited the length the #1 

and #2 entries could be driven before a notch was cut in -newly 

developed pillars. In other words, MSHA required a notch to be 

driven on the advance of the #1 entry. The revised plan required 

by MSHA to abate the citation did not require cottonwood to 

develop the new pillars in any different or smaller configuration 

and the layout of the gateroads in 4th left and the gateroads in 

the remaining sections to be developed under the plan (3rd left 

and 2nd left) were identical to the layouts specified in the 

original notch plan submitted by Energy West and approved by 

MSHA. The citation was abated after Cottonwood submitted this 

revised plan. 

XIV . 

CONCLUSION 

The citation issued by MSHA Inspector Baker two weeks after 

he first investigated the May 16th outburst charges Cottonwood 

with the violation of 30 c.F.R. ~ 75.202(a). It alleges that 

"The operator failed to protect persons from the hazards related 

to falls of roof, face, or ribs and outbursts as a coal outburst 

1638 
(bounce) occurred in the 4th left section ••• 

does not mention the fact no one was injured.) " (~he citation 

Section 75.202(a) is not a strict liability standard. It 

does not impose liability whenever a "bounce" occurs. To 

establish a violation, the Secretary, by a preponderance of 

evidence, must demonstrate a lack of reasonable care on the part 

of the operator. Under the Commission decision in aanon coal 

Co., 8 FMSHRC 667 (1987) to prove a violation of 30 C.F.R. 

§ 75.202(a) the secretary must demonstrate by a preponderance of 

the evidence a lack of reasonable care on the part of the mine 

operator. To determine if the standard has been violated, an 

objective standard of a reasonably prudent person is applicable. 

In the present case I find that a preponderance of the evidence 

presented fails to prove that Cottonwood acted in any manner 

other than th~t of reasonably prudent person, familiar with the 

mining industry and the protective purpose of the standard, in 

both recognizing potential outburst hazards and in undertaking 

measures designed to avoid those hazards. 

In this case there was commendable cooperation and earnest 

work by both the operator and MSHA to prevent any significant 

coal outburst. In spite of their best efforts, the May 16th 

outburst did occur. Fortunately no one was injured. 

It is only by hindsight that MSHA speculates that perhaps 

notching pillar No. 5 even before it was completely formed "may" 

have prevented the bounce. Inspector Baker who issued the 

citation testified "it may have prevented it. It may not." (Tr. 

84). 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, reliable, 

and probative evidence fails to establish the violation of 30 

C.F.R. § 75.202(a). 

ORDER 

Citation No. 3588448 and its corresponding proposed penalty 

are VACATED and this case is DISMISSED. 

A st F. Cetti ~dministrative Law Judge 

1639 
Distribution: 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Timothy M. Biddle, Esq., Lisa A. Price, Esq., CROWELL & MORING, . , 1001 Pennsylvania Ave., N.W., Washington, DC 20004-Z595 

(Certified Mail) 

/ sh 

1640 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW·JUDGES 

2 SKYLINE. 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 6 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), Docket No. WEST 94-719-M 

Petitioner A.C. No. 42-02086-05503 

v. 

Monroe Pit 

WISER CONSTRUCTION, 

Respondent 

Appearances: 

Before: 

DECISION 

Kristi Floyd, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado, for 

Petitioner; 

Mr . Paul Ronald Lewis, pro se, Wiser Construction, 

Moapa, Nevada, for Respondent. 

Judge Hodgdon 

This case is before me on a Petition for Assessment of Civil 

Penalty filed by the Secretary of Labor, acting through his Mine 

Safety and Health Administration (MSHA), against Wiser 

Construction, L.L.C., pursuant to section 105 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815. The petition 

alleges two violations of the Secretary's mandatory health and 

safety stand~rds and seeks a penalty of $10,000 . 00. 

A hearing was held on May 9, 1996, in Las Vegas, Nevada. 

For the reasons set forth below> I affirm the citations and 

assess a penalty of $7,500.00 . 

aackground 

On December 7, 1993, MSHA Mine Inspector James V. Skinner 

issued l07(a) Order and 104(a) Citation No. 2653620, 30 U.S.C. 

§§ 817{a) and 814{a), to Wiser Construction for a violation of 

1641 
section 56.3131 of the regulations, 30 C.F.R. § 56.3131.1 Miners 

were withdrawn from the southeast section of the pit and the 

citation issued because the inspector found that loose, 

unconsolidated material and large rocks found at the top and 

upper section of the 300 feet high highwall posed an imminent 

danger to the operator of a front-end loader working at the foot 

of the highwall. 

Discussions with the company resulted in an agreement that 

starting at the top of the highwall, the company would 

begin to bench that down so it became a multiple bench 

mine, rather than just a large highwall. It would be a 

series of stair steps, maybe to illustrate, where the 

mine would be benched with a smaller highwall and then 

a bench, and then just stair-stepping it down until it 

became manageable. The agreement was that -- the 

crushers were at the base of that highwall, a safe 

distance ~way, but what had to be done was to maintain 

a slope nearly at the angle of repose, which was 

approximately 37 degrees, with the material being 

pushed from the upper benches and maintain a slope, so 

that the material could be safely loaded from. the toe 

of that broken rock pile. 

(Tr. 9-10.) The "angle of repose" is •approximately the angle at 

which broken or loose, unconsolidated material will come to rest, 

just on a natural angle, just as it's piled or pushed into the 

pile." Id . 

On June 8, 1994, MSHA Inspector Richard R. Nielsen was 

inspecting a mine adjacent to the Monroe Pit when his attention 

1 Section 56.3131 requires that: 

In places where persons work or travel in 

performing their assigned tasks, loose or 

unconsolidated material shall be sloped to the angle of 

repose or stripped back for at least 10 feet from the 

top of the pit or quarry wall. Other conditions at or 

near the perimeter of the pit or quarry wall which 

create a fall-of-material hazard shall be corrected. 

1642 
was directed to Wiser Construction's operations. It appeared to 

him that the angle of repose was not being maintained and that 

there was no margin of safety for the loader operators. 

Consequently, he interrupted the inspection that he was 

performing and went to the Monroe Pit. 

After inspecting the pit, he issued Order/Citation Nos. 

4332892 and 4332893, under sections 107(a) a nd 104(a). Both 

alleged violations of section 56.3131 of the regulations. 

Order/Citation No. 4332892 stated: 

On June 8, 1994 at about 1515 hours a front-end 

loader loaded material from the toe of the highwall at 

the southeast section of the pit. Loose ground was 

hanging on the highwall which was about 37 meters (120 

feet) high . Order No. 2653620 was issued on 12/7/93 

and remained outstanding, was modified on 12/08/93 "to 

allow excavation on the outer perimeter of the broken 

material ·toe in the southeast section of the pit . ... 

this modification allows for outer perimeter excavation 

if a safety margin (horizontal distance ) is maintained 

between the vertical solid highwall and the excavation 

area." The safety margin of sloped material and 

horizontal distance was not maintained as required by 

Order No . 2653620. This constitutes working in the 

face of Order No. 2653620. 

(Govt. Ex. 1.) 

Order/Citation No. 4332893 stated: 

Two front-end loaders were extracting material 

from the toe of the highwall at the middle sect~on of 

the pit. There was loose ground on the highwall which 

was about 37 meters (120 feet) high. The mined 

·material had been extractetl from the toe of the 

highwall to the extent that the rock face of the 

highwall was exposed and the wall was sloped much 

steeper than the angle of repose. Loose ground on the 

highwall was of sufficient size to cause fatal injury 

to the loader operator if it were to strike the loader 

cab or come through a cab window. 

(Govt. Ex . 4.) 

1643 
Findings of Fact and Conclusions of Law 

During the ·hearing, the Respondent's representa_tive was 

asked if he was contesting the citations or just contesting the 

penalty. He stated: ~I'm more in opposition to the penalty. I 

felt like the citations the way they understood them and the way 

we understood them were a little different. But to say that's a 

100-percent safe operation on that highwall, I'd be lying to you 

and I'm not going to do that.n (Tr. 55.) I agree with his 

assessment of the case . 

Based on the evidence presented by the Secretary, I conclude 

that the Respondent twice violated section 56.3131 on June 8, 

1994, by failing to slope its loose and unconsolidated material 

to the angle of repose. I further conclude that the large 

boulders and other loose material located on the highwall made it 

reasonably likely that the front-end loader operators working at 

the foot of the highwall, instead of at the toe of the sloped 

.material as they should have been, would be seriously injured if 

work continued in that manner. Finally, I conclude that the 

company's failure to maintain the proper slope on the highwall 

resulted from "high" negligence in view of the previous 

order/citation and discussions with MSHA inspectors. 

Ciyil Penalty Assessment 

The Secretary has proposed a civil penalty of $10,000.00 for 

these two violations. The company argues that the penalty is 

unreasonable when its safety record and financial condition are 

taken into account . It is the judge's independent responsibility 

to determine the appropriate amount of penalty, in accordance 

with the six criteria set out in section 110(i) of the Act, 30 

U.S.C. § 820{i}. Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 

1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-

84 (April 1996). 

In connection with the six criteria, the pleadings indicate 

that this is ·a small mine and that the company is a small 

operator. The company's history of assessed violations is good. 

On the other hand, these were both serious violations as the 

operator's negligence was high and the likelihood of death or 

serious bodily injury resulting from the violations was also 

high. 

1644 
The Respondent claims that if the •penalty is not abated it 

will severely hamper our cash flow capabilities for continuing as 

an ongoing business.# (Resp. Ex. A at p. 4.) The burden of 

establishing that payment of a civil penalty would adversely 

affect a company's ability to stay in business is on the company. 

Sellersburg Stone Co. at 1153 n.14. As evidence of its financial 

situation, the company has submitted a balance sheet, a statement 

of operations and a schedule of wor~ in progress, all dated 

September 30, 1995 . (Resp. Ex. A at pp. 12-14.) 

While these documents, which do not puZJ)ort to be either 

audited or certified, apparently show a loss of $35,919.00, they 

do not show that payment of a penalty of $10,000.00 would 

adversely affect the company's ability to continue in business if 

it chose to do so. Spurlock Mining Co., Inc., 16 FMSHRC 697, 700 

(April 1994). In fact, the company's representative admitted as 

much at the hearing when he stated: •r mean, I wouldn't say that 

I wouldn't be able to remain in business, just not at the same 

degree of integrity that I can right now.- (Tr. 52.) 

Consequently, I conclude that imposition of the proposed penalty 

will not adversely affect the company's ability to remain in 

business. 

These violations were specially assessed at $5,000.00 each. 

The special assessment justification for Citation No. 4332892 

includes the statement that the violation was the result of 

intentional conduct on the part of management . This is 

apparently because the citation stated that the violation 

resulted from the operator's "reckless disregard.n However, at 

the hearing it was revealed that the parties agreed at the closeout conference that the negligence would be reduced to "high." 

Accordingly, the Secretary moved to amend the citation to reduce 

the level of negligence to "high" and the motion was granted. 

(Tr. 32-33.) 

Because of the reduction in the degree of negligence, the 

penalty should be reduced accordingly. Therefore, considering 

all of the criteria in section lOO(i), as discussed above, I 

conclude that a penalty of $3,750.00 for each citation, for a 

total penalty of $7,500.00, is appropriate. 

1645 
ORDER 

Accordingly, Order/Citation Nos. 4332892 a.nd 4332893 are 

AFFIRMED. Wiser Construction, L.L.C., is ORDERED TO PAY a civil 

penalty of $7,500.00 within 30 days of the date of this decision. 

On receipt of payment, this proceeding is DISMISSED. 

Distribution : 

v:~~i/LL T: Todd H~ Administrative Law Judge 

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 

(Certif.ied Mail) 

Mr. Paul Ronald Lewis, Wiser Construction, P.O. Box 160, Moapa, 

NV 89025 (Certified Mail) 

/lt 

1646 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 1 11996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MANALAPAN MINING COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 93-646 

A.C. No. 15-05423-03734 

Mine No. 1 

Docket No. KENT 93-884 

A.C. No. 15-16733-03546 

Mine No. 7 

DECISION ON REMAND 

Before: Judge Weisberger 

On August 30, 1996, the Commission issued a decision in 

these cases in which it, inter .al.ia, reversed my decision 

(16 FMSHRC 1669 (August 1994)), that Order No. 4238749 was not 

S & S, and remanded the matter to me "for penalty reassessment" 

(Docket No. KENT 93-646, et al., 18 FMSHRC ~, slip op. at 9, 

(August 30, 1996)) . 1 

I take cognizance of the Commission recitation of the 

Secretary's evidence showing the following: two miners were in 

the mines for four hours without a preshift examination; the 

miners' equipment included torches; the bolter was energized; 

there was a possibility of the p~esence of low oxygen; and that 

the mine roof had a tendency to fall, and the mine had 

1Pursuant to the Commission's direction, I hereby correct a 

clerical oversight with respect to Docket No. KENT 93-882, and 

indicate that it contained only one Citation i.e., No. 3003352, 

which was vacated. I thus order that Docket No. KENT 93-882 be 

dismissed. 

1647 
follows : "During idle periods, methane can build up, and other 

unforseen hazards can develop." (slip op. supra, at 8). Based 

on these factors, I find that the gravity of the violation was 

relatively high. I also reiterate my initial finding that 

Respondent's conduct was more than ordinary negl igence (16 FMSHRC 

supra, at 1703). I thus find that a penalty of $5,000 is 

appropriate for the violation cited in this order. 

It is ORDERED that, within 30 days of this decision . 

Respondent shall pay a total civil penalty of $5,000 for the 

violation cited in Order No. 4238749, minus any penalty 

previously paid for this violation. 

Judge 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, 

TN 37215 (Certified Mail) 

Susan C. Lawson, Esq., Lawson & Lawson, P.S . C., P . O. Box 837, 

Harlan, KY 40831 {Certified Mail) 

/ml 

1648 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MANALAPAN MINING COMPANY, 

Respondent 

SEP 2 0 1996 

CIVIL PENALTY PROCEEDINGS 

Docket No . KENT 93-646 

A.C. No. 15-05423-03734 

Mine No . 1 

Docket No. KENT 93-884 

A.C. No . 15-16733-03546 

Mine No. 7 

AMENDED DECISIQN 

Before: Judge Weisberger 

Due to clerical error, the second paragraph of the decision in 

these cases isued on September 11, 1996, is amended to read as 

follows: 

I take cognizance of the Commission's recitatio~ of the 

Secretary's evidence showing the following: two miners were in 

the mine for four hours without a preshift examination; the 

miners' equipment included torches; the bolter was energized; 

there was a possibility of the presence of low oxygen; and 

that the mine roof had a tendency to fall, and the mine had 

experienced several roof falls. Ibe Commissi on a l so noted as 

follows: "During idle periods, methane can build up, and other 

unforseen hazards can develop . " (slip op. supra, at B). Based 

on these factors, I find that the gravity of the violation was 

relatively high. I also reitera~e my initial finding that 

Respondent's conduct was more than ordinary negligence (16 FMSHRC 

supra, at 1703). I thus find that a penalty of $5,000 is 

appropriate for the violation cited in this order. 

Avram eisberger 

Administrative Law Judge 

1649 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 1 2 1996 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

L & J ENERGY COMPANY, INC., 

Respondent 

Docket No. PENN 93-15 

A. C. No. 36-07270-03526 

L & J Energy Company 

DECISION ON REMAND 

Appearances: Linda M. Henry, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Robert G. Spencer, President, L & J Energy, Co., 

Inc., Grampian, Pennsylvania, for the Respondent. 

Before: Judge Weisberger 

On April 22, 1996, the Commission issued a Direction for 

Review Order in which it granted L & J's Petition for 

Discretionary Review on the issue of its ability to continue in 

business. The Commission remanded the matter to me "for 

appropriate proceedings on this issue". 

On May 3, 1996, in a telephone conference call with 

representatives of both parties, the latter were ordered to 

communicate with each other to determine whether the matter at 

issue could be resolved by a sett~ement agreement. On May 13, 

1996, in a subsequent telephone conference call, the parties 

advised that they were unable to settle this matter but requested 

a one month extension to allow L & J to submit documentation to 

the Secretary in support of its position. In a follow-up 

telephone conference call on June 18, 1996, the parties advised 

that they were unable to settle this matter, and L & J requested 

an opportunity to present testimony. The Secretary did not 

1650 
object to this request . A hearing was scheduled for July 9, 

1996, to allow L & J to present evidence on the issue of· its 

ability to continue in business. 

In general, the operator bears the burden of establishing 

that payment of civil penalty would adversely effect its ability 

to continue in business (See, Sellerburg Stone Company y. FMSHRC 

736 F2d 1147, 1153, n.14 (7th Cir. 1984) citing, Buffalo Mining 

Company, 2 IBMA 226, 247-48-251-252 (1973)}. At the hearing, 

L & J offered in evidence financial statements covering the 

calendar years 1994 and 1995 . A cover letter on the letterhead 

of Johnston, Nelson & Shimmel, Certified Public Accountants was 

attached to these statements. The cover letter indicates that 

the statements of income and earnings were reviewed, but that 

the review was " ... substantially less in scope than an 

examination in accordance with generally accepted auditing 

standards . . . ." (Operator's Exh. A-1, pg. l} It thus is not 

an audit, and accordingly is not entitled to any probative value. 

Further, the cover letter indicates that the information included 

was based on the representations of the management of L & J. No 

one having personal knowledge of the data set forth in the 

financial statments testified on behalf of L & J . Accordingly, 

there is no basis in the record to establish the veracity and 

trustworthiness of the figures set forth in the statements 

including reports of deficits of $403,541 for 1994 and $471,884 

for 1995. Thus, these figures are not accorded any probative 

weight. 

L & J also offered in evidence a statement from Debra A. 

Young, the Comptroller of Hepburnia Coal Company, indicating that 

the coal tonnage produqed by L & J from October 1995 through 

March 1996 totalled 170,982.82 tons sold and that 33,000 tons 

"were needed to breakeven". (Operator's Exh. A-3}. The 

statement contains the following opinion "An additional 

assessment resulting from this case could hinder if not 

completely halt his efforts to save this company." However, it 

is significant to note that Young, who testified, does not work 

for L & J, did not prepare any of the financial data proffered by 

L & J and did not have personal knowledge of this data. 

Accordingly, her statements are not accorded any probative 

weight. In the same fashion, no probative weight is accorded 

Operator's Exhibit A-5 listing the expenses of L & J, as Young 

1651 
indicated that the data contained therein were compiled by 

L & J's bookkeeper, who did not testify. Accordingly, in the 

absence of testimony from persons having personal knowledge to 

authenticate the data in this exhibit, I do not accord any 

probative value to this data. 

Respondent relies on Operator's Exhibit A-6 setting forth 

expenses and income for the period December 1995 through May 1996 

which shows a total loss for this period of $156,923 . 68. 

However, there was no testimony presented to provide a basis to 

establish the veracity of the figures set forth in that document. 

The statement was prepared by the bookkeeper, who did not 

testify. Accordingly no probative weight is assigned to the 

figures set forth in this statement. 

In view of all these facts, I conclude that L & J has not 

proffered competent evidence to establish that the imposition of 

civil penalties would significantly impair its ability to 

continue in business. I reiterate my earlier findings regarding 

the factors set forth Section llO(i) of the Act (16 FMSHRC supra 

at 449-450), and reiterate my prior finding that a civil penalty 

of $87,500 is appropriate. 

ORDER 

It is ORDERED that if Respondent has not already paid the 

total civil penalty of $87,500, then Respondent shall pay $87,500 

within 30 days of this decisio~ 

... ,,,,. 

Distribution: 

Avram Weisberger 

Administrative Law Judge 

Linda M. Henry, Esq., Office of t~e Solicitor, U.S. Department of 

Labor, Room 14480 Gateway Bldg . , 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

Robert G. Spencer, President, P.O. Box I, Main Street, Grampian, 

PA 16838 (Certified Mail) 

/ml 

1652 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH. VIRGINIA 22041 

SEP 1 2 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) I 

Petitioner 

v . 

NEVADA CEMENT COMPANY, 

Respondent 

Before: Judge Hodgdon 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 95-537-M 

A.C. No. 26-00015-05534 

Mine: Nevada Cement Co. 

DECISION 

This case is before me on a Petition for Assessment of Civil 

Penalty filed by the Secretary of Labor, acting through his Mine 

Safety and Health Administration (MSHA), against Nevada Cement 

Company pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815. The petition alleges two 

violations of the Secretary's mandatory health and safety 

standards and seeks a penalty of $10,000.00. For the reasons set 

forth below, I affirm the citations and assess a penalty of 

$7,500.00 

Prior to hearing, the parties agreed to stipulate to the 

facts in the case and to submit the case in writing. The 

stipulated facts and briefs have been filed by both parties. 

Background 

After reporting for work on the morning of May 22, 1995, 

Preston Niemeyer was directed by his supervisor to replace the 

muffler on a 1972 International flat bed service truck. The 

truck was equipped with a five -speed manual transmission. The 

truck was in the central bay of Nevada Cement's truck shop. It 

was in first gear, but the pa~king brake had not been set or 

placed in the "on" position and the wheels had not been chocked 

or blocked. 

1653 
While lying under the truck and removing the exhaust pipe 

from the exhaust manifold, Niemeyer apparently touched part of 

the exhaust pipe's heat shield to the starter solenoid. As a 

result, the engine started and the truck rolled over him, causing 

fatal injuries. The truck traveled about 32 feet before it 

stopped when it struck another parked vehicle. The accident 

occurred at about 6:50 a.m. 

MSHA's investigation of the accident resulted in the 

issuance of Citation Nos. 4140701 and 4140702. Both citations 

state that: "On May 22, 1995, a fatal powered haulage accident 

occurred at the plant's truck shop. A mechanic was working on a 

service truck when the engine accidentally started and rolled 

over the victim who was under the truck working on the exhaust 

system." Citation No. 4140401 alleges a violation of section 

56.14207, 30 C.F.R. § 56.14207, 1 because "the truck's parking 

brake had not been set to prevent unintentional movement." 

Citation No. 4140702 alleges a violation of section 56.14105, 30 

C.F.R. § 56.14105, 2 because "the truck had not been 

blocked/chocked to prevent accidental movement." 

Findings of Fact and Conclusions of Law 

The parties have agreed to settle Citation No. 4140702. A 

reduction in penalty from $4,000 . 00 to $3,000.00 is proposed. In 

addition, they have agreed that if Citation No. 4140701 is 

affirmed, the penalty should be reduced from $6,000.00 to 

$4,500.00. They disagree, however, as to whether the Respondent 

violated section 56.14207. 

The Respondent argues that Citation No. 4140701 should be 

dismissed because it does not apply in this situation. According 

to Nevada Cement, section 56.14207 applies only to vehicles that 

have been parked and left unattended, i.e. "without a person in 

proximity," not vehicles that have been parked for the purpose of 

1 Section 56.14207 provides, in pertinent part, that 

"[m]obile equipment shall not be left unattended unless the 

controls are placed in .the park position and the parking brake, 

if provided, is set." 

2 Section 56.14105 requires, in pertinent part, that 

"[r]epairs or maintenance of machinery or equipment shall be 

performed only after the power is off, and the machinery or 

equipment blocked against hazardous motion." 

1654 
performing repairs and/or maintenance on them. (Resp. Br. at 4-

5.) The company further argues that the two violations at issue 

arise from same incident and, therefore, amount to overcharging. 

(Resp. Br. at 9.) I find that section 56.14207 was applicable to 

this accident and that both sections were properly cited in this 

case. 

There do not appear to be any Commission decisions dealing 

with either of these sections as cited in this case. 

Nevertheless, if there is a question as to whether a regulation 

applies to a specific incident, the Commission has directed that 

the question be answered by using the "reasonably prudent person 

test." That is, "whether a reasonably prudent person familiar 

with the mining industry and the protective purposes of the 

standard would have recognized the specific prohibition or 

requirement of the standard." Ideal Cement Co. 12 FMSHRC 2409, 

2416 (November 1990). 

In essence, the Respondent argues that the truck in this 

case was not "unattended" because the mechanic was present, 

albeit underneath the truck. However, it is obvious that the 

purpose of the regulation is to prevent mobile equipment from 

moving when someone is not in a position to stop it. Thus, 

"unattended," as used in the regulation, me.ans more than someone 

not being in proximity to the vehicle. I find that mobile 

equipment is "unattended" when no one is present who can prevent 

it from moving. This is consistent with the first definition 

found in Webster's Third International Dictionary 248~ (1986) 

that "unattended" means "not attended: a: lacking a guard, 

escort, caretaker, or other watcher." 

Clearly, Niemeyer was not in a position, lying underneath 

the truck, to prevent it from rolling forward. Consequently, the 

truck was unattended while he was working on it. Accordingly, I 

conclude that a reasonably prudent person familiar with the 

mining industry and with the requirements of section 56.14207 

would have recognized that in such a situation the regulation 

requires that the parking brake pe set. 

Contrary to the Respondent's argument, I do not find that 

the two regulations are mutually exclusive. It is not a matter 

of either setting the parking brake when the equipment is parked 

or blocking the wheels when the parked vehicle is being repaired. 

Because a person performing repairs or maintenance on a vehicle 

is often in an exposed position if the vehicle were to move, just 

1655 
as Niemeyer was in this case, it is completely logical that the 

regulations would require both that the parking brake be engaged 

and that the wheels be blocked. This makes sure, as best as 

possible, that the vehicle cannot move. 

As the Commission has observed: "The 1977 Mine Act imposes a 

duty upon operat ors to comply with all mandatory safety and 

health standards. It does not permit an operator to shield 

itself from liability for a violation of a mandatory standard 

simply because the operator violated a different, but related, 

mandatory standard." El Paso Rock Quarries, Inc., 3 FMSHRC 35, 

40 (January 1981) . Here, although the two violations arose from 

the same event, "the citations are not duplicative because the 

two standards impose separate and distinct duties upon the 

operator." Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 

(March 1993) . 

Therefore, I conclude that Nevada Cement was properly cited 

for a violation of section 56.14207. I further conclude that the 

company violated the regulation when the parking brake was not 

set while Niemeyer was working underneath it. 

Civil Penalty Assessment 

The parties settlement agreement provides for a penalty of 

$4,500.00 for Citation No. 4140701 and $3,000.00 for Citation No. 

4140702, for a total penalty of $7,500.00. Having considered the 

representations and documentation submitted, I conclude that the 

proffered settlement is appropriate under the criteria set forth 

in section llO(i) of the Act, 30 U.S.C. § 820(i). 

ORDER 

Accordingly, the motion for approval of settlement is 

GRANTED, Citation Nos. 4140701 and 4140702 are AFFIRMED and 

Nevada Cement Company is ORDERED TO PAY a civil penalty of 

$7,500.00 within 30 days of the d~te of this decision. On 

receipt of payment, these proceedings are DISMISSED. 

'!-~~~ Administrative Law Judge 

1656 
Distribution: 

Jeanne M. Colby, Esq., Office of the Solicitor, U.S . Department 

of Labor, 71 s'tevenson St. I Suite 1110, San Francisco, CA 94502 

(Certified Mail) 

James B. Leslie, Esq., Law Offices of Michael B. Springer, 

500 Ryland, Suite 200, Reno, NV 89502 (Certified Mail) 

/lt 

1657 

.. 

.. 

"· 

.·: 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

HAROLD HOLTZ, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 0 1996 

Complainant 

DISCRIMINATION PROCEEDING 

Docket No. CENT 96-7-D 

DENV CD· 95-13 

FALKIRK MINING COMPANY, 

Respondent 

Mine ID 32-00491 

Appearances: 

DECISION 

Steven L. Latham, Esq., Bismarck, North Dakota for 

Complainant; 

Charles S. Miller Jr., Esq., Fleck, Mather, & 

Strutz, Bismarck, North Dakota for Respondent. 

Before : Judge Fauver 

This is a complaint under§ lOS(c ) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 

.e.t. ~., alleging discrimination on February 23, 1995, when 

Respondent notified Complainant that he was being placed on 

probation for six months because of an incident with its safety 

manager at a bar. 

Holtz contends that the safety manager, Archie Gilliss, gave 

a false and exaggerated account of the incident as a means of 

retaliating against him because of his protected activi~ies under 

§ lOS(c). He further contends that this was part of a pattern of 

false and exaggerated reports by Gilliss against him in 

retaliation of his protected activities. As evidence of a 

pattern, he cites two prior adverse actions in 1993 and 1994. 

Falkirk Mining denies any discrimination or hostility toward 

Holtz' protected activities and contends that the prior adverse 

actions are barred by the statute of limitations. 

Having considered the hearing evidence and the record as a 

whole, I find that a preponderance of the substantial, probative 

and reliable evidence establishes the f o~lowing Findings of Fact 

1658 
and further findings in the Discussion below: 

FINDING OF FACT 

1. On December 17, 1990, Harold Holtz was involved in a 

fatal accident at the Falkirk Mine, a surface coal mine operated 

by Respondent Falkirk Mining Company in Bismarck, North Dakota. 

Falkirk is a subsidiary of the North American Coal Corporation. 

The mine produces. coal for sale or use in or affecting interstate 

commerce. 

2. The accident involved a collision between a large coal 

hauler operated by Holtz and a scraper. The operator of the 

scraper was killed . Holtz suffered shoulder injuries that 

required surgery and rehabilitation of several months. 

3. Holtz had a substantial disagreement with management 

concerning the cause of the accident and safety rules he believed 

were necessary to prevent future accidents. Management did not 

find Holtz at fault in the accident. The disagreement arose from 

Holtz' belief that management was covering up its responsibility 

for conditions that led to the accident. 

4. MSHA issued two citations on December 19, 1990, and a 

third on January 22, 1991, based on its investigation of the 

accident. 

5. Holtz disagreed with MSHA's investigation report as well 

as mine management's account of the accident. He frequently 

expressed his complaints to management, especially to Archie 

Gilliss, the mine safety manager . Gilliss advised him to report 

his concerns to MSHA if he was not satisfied with the 

investigation or had more information to assist the 

investigation. Holtz had many contacts with MSHA concerning its 

investigation and its preparation for a hearing on its citations. 

Holtz was expected to testify at.the hearing . 

6. The citations were settled on September 22, 1992, with a 

90% reduction in penalties and a major reduction in the charges. 

Holtz was very upset over the settlement and felt that it was a 

white -washing of serious violations. On a number of occasions, 

he expressed his opinion to persons at the mine and others, 

including MSHA officials, that there was collusion between 

1659 
Falkirk's management and MSHA, and that mine management and MSHA 

had engaged in a cover-up of serious safety violations. 

7. On February 24, 1993, more than two years after the 

accident, MSHA inspected the Falkirk Mine following a complaint 

from an unidentified caller. During the inspection, in which no 

violations were found, Holtz asked to talk to the inspectors. 

Holtz met with Inspectors Larry Keller and James Beam and again 

complained about the investigation of the 1990 accident and 

settlement in 1992. This was not a new subject for the MSHA 

inspectors. Holtz had voiced the same complaints to Keller and 

other MSHA officials on a number of occasions. Holtz testified 

that he had 8-10 conversations with at least three different MSHA 

officials prior to the February 1993 inspection. 

8. Keller was concerned about Holtz' emotional reaction to 

the 1990 accident and investigation and Holtz' statement to him 

that he continu~d to have disturbing flashbacks when ever he 

drove by the scene of the accident. Keller was concerned that a 

person driving a coal hauler carrying 300 tons of coal at 55 

m.p.h. needed to be concentrating 100% on what he was doing in 

order to operate the equipment safely. 

9. At the conclusion of the February 1993 inspection, 

Keller talked to Archie Gilliss, mine safety manager, about 

Holtz' continued emotional reaction to the 1990 accident and 

investigation, his flashbacks, and how his emotional state might 

affect his ability to concentrate fully on operating the large 

coal hauler. Keller noted that the company had an employee 

assistance program and asked Gilliss if the company could provide 

Holtz some assistance, meaning professional counseling. Gilliss 

prepared a memorandum to his files concerning his discussion with 

Keller and reported the matter to mine management. After 

consultation with legal counsel, management decided to take Holtz 

off the equipment and place him on paid medical leave for 

psychological evaluation. The dec.ision was a collective one and 

involved Falkirk's President, Falkirk's Manager of Human 

September 11, 1996 Resources, Holtz' line supervisors, and 

Gilliss. 

10. Holtz was very upset with Falkirk's decision to require 

him to undergo psychological evaluation. He filed a § lOS{c) 

discrimination complaint against Falkirk on March 22, 1993, 

1660 
contending that Gilliss lied about Keller's comments in order to 

retaliate against Holtz' protected activities. 

11. MSHA investigated Holtz' discrimination complaint and 

determined there had been no violation of § lOS(c). After 

receiving MSHA's decision, around November 1, 1993, Holtz elected 

not to pursue his complaint before the Review Commission. 

12. In this proceeding, which involves a later 

discrimination complaint (in 1995), Holtz contends that Gilliss 

demonstrated a pattern of hostility toward Holtz' protected 

activities. As part of the pattern, Holtz contends, Gilliss lied 

to Falkirk's management concerning the extent of Keller's remarks 

to Gilliss following the February 1993 inspection. Holtz 

testified that he talked to Keller and that Keller had denied 

stating that he considered Holtz to be a safety risk to himself 

and his fellow miners or a "time bomb" ready to go off, as 

Gilliss had re~orted to management. Keller testified that he 

expressed to Gilliss his concerns about Holtz' inability to put 

the accident behind him and the possibility that he was not able 

to maintain his concentration while operating the large coal 

hauler. Keller also testified that he mentioned Holtz' 

flashbacks and asked Gilliss whether there was something that 

Falkirk could do in terms of providing Holtz with counseling. In 

large part, Keller confirmed Gilliss' account of the 

conversation, although Gilliss may have exaggerated some of 

Keller's statements. 

13. In March 1993, Holtz went on medical leave with full 

pay and benefits. Dr. Tello, the physician staffing Falkirk's 

Employee Assistance Program, referred him to Dr. Peterson, a 

clinical psychologist who was not connected with Falkirk. Dr. 

Peterson saw Gilliss and also had him see a psychiatrist, Dr. 

Thaker, who also was not connected with Falkirk. Following those 

consultations, Dr. Peterson reported to Falkirk that Holtz had 

unresolved psychological conflicts as a result of the 1990 

accident and strongly recommended that Holtz receive counseling 

from either a psychiatrist or a psychologist. Dr. Peterson noted 

that there was a significant ongoing conflict between Holtz and 

the mine staff. He described Holtz as being a "worrisome, tense 

individual who is likely to be ·rigid and stubborn in 

relationships." He also reported that Holtz "is suspicious of 

others and has difficulty trusting." At the same time, however, 

1661 
Dr. Peterson reported that he did not consider Holtz to be a 

danger to himself or others in carrying out his job 

responsibilities. 

14. Following Dr. Peterson's report, Holtz was returned to 

duty as a coal hauler operator, but was required to attend 

further counse l ing as recommended by Dr. Peterson. The 

additional counseling was performed by Dr. Hanlon, who was not 

connected with Falkirk. Although this situation was somewhat 

unique, Falkirk has taken similar actions with regard to other 

employees. In one instance, Falkirk required a dragline operator 

who was having emotional problems to obtain assistance and in 

other instances had referred personnel to its EAP program when 

there were unexplained problems with their job performance. 

15. After returning to duty, Holtz' relationship with mine 

management continued to be poor. Holtz' immediate supervisor, 

Mr. Davison, wrote in Holtz' employee evaluation on October 7, 

1993, the following: 

Harold's basic attitude toward his job as a coal hauler is 

satisfactory. It is also satisfactory toward his 

supervisor. However, with respect of his attitude toward 

the company as a whole and particularly toward members of 

management, it is much below average. Much if not all is 

manifest from his involvement in the fatal accident of 

12/17/90 and a subsequent evaluation this summer. There 

have been times when Harold was emotionally upset that I 

believe Harold was not 100% committed to his primary job as 

Coal Hauler Operator. I feel Harold needs to put these 

incidents behind him emotionally and move on with his job 

and his future at Falkirk. [Ex. C-4] 

16. On August 3, 1994, Gilliss had an incident with Holtz 

in the shift change area at the mine. Gilliss reported to 

Falkirk's management that Holtz asked him, "Have you talked to 

your high ranking MSHA official buddy that you are in cahoots 

with lately?" Gilliss stated in his report that when he asked 

Holtz what he meant, Holtz referred to Inspector Keller and the 

conversation between Keller and Gilliss that precipitated Holtz 

being sent for psychological evaluation. Gilliss also reported 

that when Holtz began talking about this subject, Holtz got redfaced and angrier and angrier, pointed his finger at Gilliss, and 

1662 
with a very hard and glaring stare, stated "I'll see you in 

court." Tr. 197-200. 

17. Based upon Gilliss' report, management gave a written 

warning to Holtz on August 11, 1994. The written warning 

concluded: 

Your comments and behavior towards Mr. Gilliss are totally 

uncalled for and is unacceptable behavior by one employee 

towards another at the Falkirk Mine, thus, any similar 

behavior in the future will result in stronger discipline, 

up to, and including termination. 

You have been previously advised of your right to pursue 

legal action or avail yourself to the appropriate state or 

federal authorities if a problem exists but when you sue 

[sic] this as a device to threaten and intimidate other 

employees;" this behavior is unacceptable and subject to 

disciplinary action. [Ex. C-5] 

18. On the evening of February 21, 1995, Holtz happened to 

come across Gilliss in a bar at the Comfort Inn motel in 

Bismarck, North Dakota, about fifty miles from the Falkirk Mine. 

During "happy hour," Gilliss was in the bar with his brother-inlaw and several of his family members who were staying at the 

motel. Holtz was in the bar with his wife and another couple. 

When Gilliss came into the bar, his party happened to take a 

table next to Holtz' table. Gilliss later reported to management 

that Holtz glared at him from Holtz' table and that at one point 

Holtz stood by Gilliss' table for several minutes and stared at 

Gilliss without talking and, finally, when Gilliss acknowledged 

his presence (by saying, "Hello, Harold") Holtz simply walked 

away without comment . Gilliss reported to management he felt 

threatened by this conduct, particularly given the setting in 

which it took place and not knowing what might happen next. 

19. Holtz testified that he simply stood a few moments at 

Gilliss' table for an opportunity to greet him, and then left . 

He denied he did so in a threatening or intimidating manner. 

20. Several persons testified about the incident in the 

Comfort Inn in addition to Gilliss and Holtz: Gilliss' brotherin-law David Laber, Holtz' wife, and one of the individuals who 

1663 
was with the Holtz party, Mr. Robertson . Although there were 

some discrepancies in the accounts given by these witnesses as to 

exactly where persons were situated at various points during the 

evening and other like details, these discrepancies were not 

unusual. Considering the testimony of these witnesses along with 

the testimony of Gilliss and Holtz, I find that Holtz did pause 

at the table at which Gilliss was seated and did stare at Gilliss 

without speaking. Gilliss' report to management stated that 

Holtz stood near his table for "several minutes." I find that 

this was an exaggeration and that Holtz stood at the table about 

30 seconds. 

21. As a result of Gilliss' report to management, 

management made the decision, after consultation with legal 

counsel, to place Holtz on six months probation. The written 

notice of probation was given on February 23, 1995. The notice 

referred to the prior warning on August 11, 1994, and stated 

that he was being placed on probation because he had engaged in 

further objectionable conduct of an intimidating nature. Ex. C-6 . 

22 . Holtz filed a second§ lOS(c) discrimination complaint 

against Falkirk, dated March 24, 1995, which is the subject of 

this proceeding. The complaint was investigated by MSHA, which 

concluded that there had been no violation of § 105(c) . 

23. During probation, Holtz continued working but was 

denied a wage increase and a yearly bonus paid to other 

employees. The wage increase was given as .of the date of his 

completion of probation and the bonus for the prior year was then 

paid . 

24. At the time of the hearing, May 1996, Holtz was 

employed at the Falkirk Mine and there had been no further 

incidents in his employment relationship. Management' had 

installed traffic safety rules and Holtz was performing his job 

well. 

1664 
DISCQSSION WITH FQRTHER FINPINGS. CONCLUSIONS 

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

discrimination because of the exercise of rights under the Act, 

including making safety complaints to the mine operator or to 

MSHA. 

A miner alleging discrimination under§ lOS(c) establishes a 

prima f acie case of discrimination by proving that he or she 

engaged in protected activity and the adverse action complained 

of was motivated in part by that activity. Secretary on behalf 

Qf Pasula v . Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 

(1980), rev'd on other grounds. sub nom. CQnsolidatiQn Coal Co. 

v. Marshall, 663 F.2d 1211 {3d Cir. 1981); Secretary on behalf Qf 

Robinette v . United Castle CQal Co. 3 FMSHRC 803,817-18 {1981). 

The operator may rebut the prima facie case by showing either 

that no protected activity occurred or that the adverse action 

was in no part motivated by protected activity. If the operator 

cannot rebut the prima facie case in this manner, it nevertheless 

may defend affirmatively by proving that it is also was motivated 

by the miner's unprotected activity and would have taken the 

adverse action for the unprotected activity alone. Pasula, 2 

FMSHRC at 2799-2800; Robinette, 3 FMSHRC at 817-18; see also 

Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 

1987). 

As the Commission and Courts have repeatedly noted, direct 

evidence of discriminatory motive is rare . Usually 

discrimination can be proven only by circumstantial evidence upon 

which the trier of fact draws an inference regarding the 

employer's motivation . Secretary of Labor on behalf of ChacQn v. 

1 Section lOS(c) (1) provides in part : 

No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner . .. because 

such miner ... has filed or made a complaint under or 

related to this [Act] including a complaint notifying 

the operator ... of an alleged danger or safety or health 

violation in a coal or other mine .... 

1665 
Phelps Dodge Corporation, 3 FMSHRC 2508, 2510 {1981). 

The most common circumstances upon which such an inference 

may be based are the employer's knowledge of the protected 

activity, hostility towards the protected activity (animus), 

nearness in time between the protected activity and the adverse 

action, disparate treatment of the complainant and similarly 

situated employees, and the resort to pretextual grounds for the 

adverse action against the complainant. 

Section 105{c) protects the exercise of rights under the 

Act, but not misconduct. Abusive or threatening conduct toward a 

supervisor or management staff in raising a safety complaint may 

run the risk that the operator will take disciplinary action for 

conduct that is not protected by§ lOS{c). 

Protected Activities 

Holtz was engaged in numerous protected activities. He 

disagreed with the company's account of the 1990 accident and 

raised complaints about safety rules needed to prevent similar 

accidents. His voicing of these concerns to mine management and 

the mine safety manager was protected against retaliation under § 

105 {c) . 

His numerous contacts with MSHA concerning its investigation 

and its preparation for a hearing on citations were protected 

under§ lOS(c). His status as a prospective witness at the 

hearing was protected. 

His filing of a § lOS{c) complaint of discrimination in 1992 

was a protected activity. 

Finally, his complaints about the 1992 settlement of the 

citations and penalties were protected activities to the extent 

that they raised questions of a violation of the Act or 

regulations for the proper enforcement and administration of the 

Act. 

1666 

.· 

:.:·. 
Disposition of the Issues 

Holtz contends that Falkirk's probation decision was based 

on Gilliss' account of the incident in the Comfort Inn on 

February 21, 1995, and that Gilliss gave a false and exaggerated 

account to retaliate against Holtz because of his protected 

activities. Holtz contends that Gilliss demonstrated a pattern 

of hostility toward his protected activities as evidenced by the 

probation decision and Falkirk's two prior adverse actions of 

placing Holtz on medical leave for psychological evaluation in 

1993 and its written reprimand in 1994. Holtz contends that all 

three actions were based on Gilliss' accounts of the facts which 

were false or exaggerated by Gilliss to retaliate against Holtz' 

protected activities. The company denies any discrimination or 

hostility because of Holtz' protected activities and asserts that 

the 1993 and 1994 actions are barred by a 60 day statute of 

limitations. 

The two prior adverse actions are not part of Holtz' present 

complaint of discrimination, and will not be adjudicated here as 

liability claims. However, they will be considered under the 

issue whether management through Gilliss demonstrated a pattern 

of hostility toward Holtz' protected activities. 

1. Medical leave for psychological evacuation 

In March 1993, Gilliss reported to management that MSHA 

Inspector Keller had expressed concerns about Holtz' emotional 

state and safety as a heavy equipment operator. Based upon 

Gilliss' account of Keller's remarks, management decided to place 

Holtz on medical leave for psychological evaluation. 

Holtz testified that Keller told him that he did not tell 

Gilliss that Holtz was a danger to himself or others, ·or a "time 

bomb" waiting to go off, as Gilliss had reported to management . 

Keller testified that he expressed concerns about Holtz' 

inability to put the accident behind him and the possibility that 

he was not able to maintain full concentration while operating 

the large coal hauler. Keller also testified that he mentioned 

Holtz' flashbacks about the accident and asked Gilliss whether 

there was something that Falkirk could do in terms of providing 

Holtz with counseling. I find that the essence of the 

inspector's safety concerns about Holtz' emotional state was 

1667 
conveyed in Gilliss' report to management, even though Gilliss 

may have exaggerated or misstated some of Keller's remarks. 

The evidence does not indicate that Gilliss' report to 

management was motivated in any part py Holtz' protected 

activities. Gilliss did not demonstrate hostility toward Holtz' 

protected activities. Instead, he recommended that Holtz contact 

MSHA if he had any further complaints or facts to assist the 

investigation of the 1990 accident. Gilliss' report about 

Keller's remarks was in March 1993, which was about six months 

after the settlement of the citations and almost two years after 

Holtz first started complaining to the company and to MSHA about 

the accident and the investigation. There is no close 

relationship in time between Holtz' protected activities and 

Gilliss' report of Keller's remarks. 2 The evidence indicates 

that Gilliss was motivated to alert management to Keller's safety 

concerns about Holtz because of the significance of a federal 

mine inspector expressing concerns about the emotional state and 

possible safety risk of a heavy equipment operator. 

2. Written warning on August 11. 1994 

Gilliss wrote a memorandum to his files on August 3, 1994, 

concerning a confrontation with Holtz in the shift change area. 

Based upon Gilliss' report to management, management issued a 

written warning to Holtz on August 11, 1994 . 

This incident was long after the 1990 accident and 1992 

settlement of the citations with MSHA. The evidence indicates 

that Gilliss' motivation in reporting the August 3 incident to 

management was his concern about abusive and intimidating 

behavior by Holtz rather than Holtz' protected activities. 

2Holtz' statements to Keller during the February 1993 

inspection were protected activities. However, the evidence 

indicates that Gilliss' motivation in reporting Keller's safety 

concerns about Holtz was to alert the company to a federal 

inspector's concerns, not to retaliate against Holtz for 

protected activities. 

1668 
3. Letter of probation on February 23. 1995 

The controlling issue in this case is whether Gilliss' 

account of the Comfort Inn incident, which induced management's 

probation decision in February 1995, was motivated in any part by 

Holtz' protected activities. 

On February 22, 1995, Gilliss prepared a memorandum of an 

incident with Holtz at the Comfort Inn bar on February 21, 1995. 

Ex. C-12. This memorandum was the basis of his report to 

management, which led to management's decision to place Holtz on 

probation for six months. Gilliss' report to management is an 

integral part of management's decision because it provided the 

facts accepted by management as the basis for its probation 

action. If Gilliss' report is found to be tainted by 

discrimination, management's decision would be similarly tainted. 

Although '.Gilliss' memorandum of the incident contains some 

exaggerations, I find that the essence of Holtz' conduct that 

disturbed him, i.e., standing at his table and staring at him 

without talking, was conveyed in his report. The evidence does 

not preponderate to show a nexus between Gilliss' report to 

management and any protected activities by Holtz. Instead, the 

evidence indicates that the motivation of Gilliss and management 

was to address conduct they perceived as intimidating and a 

violation of the August 11, 1994, written warning. 

In summary, after proving his protected activities, Holtz 

had the burden to prove that there was some nexus between his 

protected activities and the challenged adverse action. 

The evidence does not show a nexus between any of the three 

adverse actions (in March 1993, August 1994, and February 1995) 

and Holtz' protected activities. First, the evidence · does not 

show that Respondent had hostility toward Holtz' protected 

activities. Gilliss and management on several occasions told 

Holtz that if he had continuing concerns about the· 1990 accident 

or the investigation he should contact MSHA. The accident 

occurred in December of 1990 and the settlement of the citations 

was approved in September 1992. During this time Holtz had a 

number of contacts with both MSHA and Falkirk management and 

Gilliss concerning his complaints about the investigation and his 

perceptions that Falkirk had misrepresented the facts and 

1669 
covered up serious violations and was "in cahoots" with MSHA and 

its attorneys. Yet during this period Holtz was not disciplined 

by Falkirk and was given good evaluations for his job 

performance. Secondly, the evidence indicates that each of the 

three adverse actions had a close relationship in time with 

conduct that was not protected by§ lOS(c) . The decision to 

place Holtz on medical leave for psychological evaluation in 

March 1993 directly followed the concerns raised by MSHA 

Inspector Keller about Holtz' emotional state and possible safety 

risk as a heavy equipment operator. The written warning on 

August 11, 1994, was triggered by an August 3 incident that the 

operator perceived as employee misconduct, not an activity 

protected by§ lOS(c). Finally, the probation decision on 

February 23, 1995 was based on conduct on February 21 that the 

operator perceived as a violation of the August 1994 written 

warning and not an activity protected by§ lOS(c). 

For the above reasons, I find that the evidence does not 

establish a violation of § lOS(c). Even if the evidence were 

found to prove that the probation decision was motivated in some 

part by Holtz' protected activities, I find that the operator 

affirmatively proved that it considered Holtz' unprotected 

conduct and would have put him on probation for that conduct 

alone. 

Respondent's Motion to Recoyer Attorney Fees and Costs 

Respondent contends that Holtz' discrimination complaint is 

without merit and was filed as a tactic to forestall or chill 

legitimate personnel actions and to re-litigate claims barred by 

the statute of limitations. It requests a finding that Holtz has 

abused the discrimination complaint process and moves for 

recovery of attorney fees and costs under the Commission's Rules 

of Practice, 29 C.F . R. § 2700 . 1, and Fed . R. Civ. P.11 . . 

I find that the complaint res.ts upon substantive 

contentions, and was not frivolously brought. Holtz had good 

faith, substantial concerns about what he perceived to be 

management's failure to acknowledge its own role in contributing 

to the fatal accident, its delays in adopting and foll owing 

traffic safety rules, and its pa~ticipation in a "white-washing" 

settlement of MSHA's charges and civil penalties. Holtz also 

felt frustrated by management's failure to spend time with him 

1670 

;, 

~-: 
after the accident to get his input on the facts and safety 

issues he perceived about the accident and concern~ he felt about 

the loss of a co-worker's life. He felt isolated by management 

after a traumatic accident that he believed could have been 

prevented through the observance of proper traffic safety rules. 

On good faith grounds, although not meeting his burden of proof, 

Holtz believed Gilliss and management retaliated against him 

because of his protected activities. Factual issues as to the 

two prior adverse actions were relevant in considering whether 

Gilliss, a key management agent, demonstrated a pattern of 

hostility toward Holtz' protected activities. In sum, I find 

that Holtz has not abused the discrimination complaint process. 

CONCLUSIONS OF LAW 

1. Respondent's Falkirk Mine is subject to the Act. 

2. Comp~ainant, Harold Holtz, has failed to prove a 

violation of • lOS(c} of the Act. 

3 . In bringing this action, Complainant has not abused the 

discrimination complaint process. 

ORDER 

WHEREFORE IT IS ORDERED that: 

l. The complaint is DISMISSED. 

2. Respondent's motion to recover attorney fees and costs 

is DENIED. } , ~ c.tk:Lt ~ ~,.,__,___ William Fauver 

Administrative Law Judge 

Distribution: 

Steven L. Latham, Esq., P.O. Box 2056, Bismarck, ND 58502-2056 

(Certified Mail) 

Charles S. Miller, Jr., Esq., Fleck, Mather & Strutz, P. O. 

Box 2798, Bismarck, ND 58502 - (Certified Mail} 

nt 

1671 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 0 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMBROSIA COAL & 

CONSTRUCTION COMPANY, 

SECRETARY OF. LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

AMBROSIA COAL & 

CONSTRUCTION COMPANY 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 93-233 

A.C. No . 36-04109-03520 

Ambrosia Tipple 

CIVIL PENALTY PROCEEDING 

Docket No . PENN 94-15 

A.C. No. 36-04109-03522 A 

Ambrosia Tipple 

ORDER ON REMAND 

Before: Judge Fauver 

On September 12, 1996 the Commission remanded these 

cases to the judge for reassessment of civil penalties . . 

The Secretary shall have 15 days from the date of 

this Order to propose the amounts of reassessed civil 

penalties against Ambrosia and Steen with the reasons 

therefor consistent with the Commission's decision in 

this case and in Sellersburg Stone Co . , 5 FMSHRC 287, 

293-3 (1983). Each Respondent shall have 10 days to 

1672 
reply to t h e Secretar y ' s prop o s e d p enaltie s and t o 

recommend counter-proposals wit h t he rea sons the r e for 

consistent with the above decisions. 

ti~ William fo,t"'~ Fauver 

Administrative Law Judge 

Distribution: 

Jerold s. Feingold, Esq., Office of the Solicitor, U. S. 

Department of Labor, 4015 Wilson Boulevard, Room 400, 

Arlington, VA 22203 (Certified Mail) 

William P. Getty, Esq., Hugh F . McGough, Esq . , Meyer, 

UnKovic & Scott, 1300 Oliver Bldg., Pittsbur gh, PA 

15222 (Cert~fied Mail) 

Frank G. Verterano & Manolis, 2622 Wilmington Road, Ne w 

Castle, PA 16105 (Certified Mail) 

nt 

1673 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

September 26, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

RAYMOND P . ERNST , EMPLOYED 

BY LYON SAND & GRAVEL co. I 

Respondent 

SECRETARY OF LABOR , 

MINE SAFETY AND BEALTB 

ADMINISTRATION (MSHA) I 

Petitioner 

v. 

SCOTT BANDKAU , EMPLOYED BY 

LYON SAND & GRAVEL co. I 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 96-103-M 

A. C. No . 20-00773-05525-A 

Lyon Sand & Gravel 

CIVIL PENALTY PROCEEDING 

Docket No . LAKE 96-104-M 

A.C. No. 20-00773-05524-A 

Lyon Sand & Gravel 

ORDER OF DISMISSAL 

Before: Judge Merlin 

These eases are petitions for the assessment of civil 

penalties filed by the Secretary of Labor against respondents, 

Scott Bandkau and Raymond P . Ernst, under section 110(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U. S . C. § 810(c), 

hereinafter referred to as the "Act". Respondents seek to have 

the petitions dismissed on the ground that the Secretary has 

failed to act in a timely manner . 

These cases involve one citation and four orders issued to 

respondents' employer, Lyon Sand ~Gravel Company, under section 

104(d) of the Act, 30 U.S.C. § 814(d), for alleged violations of 

the Act and its mandatory standards. The five violations were 

issued on September 21, 1994 . 

On February 26 , 1996, the Sec;:retary issued notices of proposed 

civil penalty assessments against respondents and on March 22, 

1996, respondents timely requested a hearing. 29 C. F.R. § 2700.26 . 

The Secretary had 45 days after receipt of the hearing requests to 

1674 
file his penalty petitions. 29 C.F.R. § 2700.28. In these cases 

the Secretary received respondent Ernst's hearing request on 

March 26, 1996, and respondent Band.kau's request on March 27, 1996. 

Therefore, the petitions were due on May 10, 1996, and May 13, 

1996, respectively . 29 C.F.R. § 2700.8. 

The Solicitor failed to file the penalty petitions. On 

June 4, 1996, orders were issued to the Secretary to show cause 

within 30 days why these cases should not be dismissed for 

untimely filing. 

On July 12, 1996, the Solicitor filed the penalty petitions. 

The petitions were accompanied by a motion for leave to file them 

out of time which offered the following explanation : 

The Secretary devoted many hours of review to the 

above-captioned case in order to determine if a civil 

penalty was appropriate based on the facts as known to 

him. This review required the scheduling of meetings 

between interested parties, both live and by phone 

which took· considerable time and effort. Therefore, 

the Secretary was not able to reach a conclusion about 

whether to file a Petition for Assessment of Civil 

Penalty in the instant case before now. 

On August 13, 1996, respondents filed a motion to dismiss. 

Respondents complain that the penalty petitions were not filed 

within the required 45 days and point out that they were not 

filed until after show cause orders were issued. Respondents 

further complain that the subject citation and orders were issued 

on September 21, 1994, almost 22 months before the penalty 

petitions were filed. It is respondents' assertion that the 

Secretary has failed to demonstrate adequate cause and they have 

been prejudiced by the delays. 

On August 22, 1996, the Solicitor filed a letter ·stating 

that he would not be filing additional motions. 

The Commission permits late filing of penalty petitions 

where the Secretary demonstrates adequate cause for the delay and 

where the respondent fails to show prejudice from the delay. 

Salt Lake County Road Department, 3 FMSHRC 1714, 1716 (July 

1981); Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989). 

1675 
The reasons offered by the Solicitor in these cases to 

justify the late filings fall short of what is required for a 

showing of adequate cause. The Solicitor makes the briefest of 

responses which contains only general statemepts about events 

which allegedly caused the untimeliness. The specific circumstances are not addressed. The Solicitor refers to many hours of 

review, but the actual times spent and the chronology of those 

times are undisclosed. He mentions many meetings between interested parties, but does not say who the parties were or when the 

meetings took place . Finally, the Solicitor fails to sufficiently answer respondents' allegations because he does not 

distinguish between the delay in filing the penalty petition and 

the delay in the investigation phase. Because the Solicitor's 

explanation is general and vague, it could apply to any llO(c) 

case where timeliness becomes an issue. 

In James Lee Hancock. Employed by Pittsburg and Midway Coal 

Company . 17 ~SBRC 1669 (September 1995), I granted requests 

from the Solici~or for extensions of time to file the penalty 

petition and rejected claims that there were undue delays by 

MSHA during its investigation and by the Solicitor in filing the 

penalty petition. However, in Hancock the Solicitor provided a 

detailed exposition of the problems encountered in considering 

the case as well as the sequence of events that occurred. Based 

upon those circumstances, he justified the time used by the 

Secretary both in investigation and in filing the penalty petition. The Solicitor here has done none of these things. 

It is axiomatic that section llO(c) is an integral and 

important part of enforcement under the Mine Act . When Solicitors are confronted with allegations such as those made by the 

respondents here, they must do more than recite generalizations 

unrelated to what transpired in the case. 

Because there has been no showing of adequate cause, it is 

not necessary to reach the issue of prejudice. 

1676 
In light of the foregoing, the Solicitor' s motion to file 

the penalty petitions out of time is DENIED. 

It is ORDERED that these cases be DISMISSED . 

= 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Keith E . Bell, Esq. , Office of the Solicitor, U. S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Laura Beverage, Esq. , Jackson & Kelly, 1616 Lincoln Street, Suite 

2710 , Denver, CO 80264 

1677 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3993/FAX 303-844-5268 

SEP 2 6 1996 

SECRETARY OF LABOR, . . DISCRIMINATION PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), : Docket No. WEST 95-417-D 

on behalf of . . MARTY P . BODEN, 

Complainant 

v. 

LION COAL COMPANY, . . COUGAR COAL COMPANY, successor . 

. Swanson Mine 

to LION COAL COMPANY, Mine I.D. 48-00082 

Respondent . 

. 

DECISION 

Appearances: Kristi L. Floyd, Esq., Office of the Solicitor, 

u.s. Department of Labor, Denver, Colorado, 

for Complainant; 

Brian w. Steffensen, Esq., counsel and registered 

agent, Cougar coal Company, 

Corporate Secretary, Lion Coal Company, 

for Respondent. 

Before : Ju4qe Cetti 

This case is before me upon the complaint by the Secretary 

of Labor on behalf of Marty P. Boden under section lOS(c) (2) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. S 801 

et. seq., the "Act". The· complaint alle?es that Lion Coal 

Company (Lion Coal) violated S 105(c) (1) of the Act when it 

Section 105(c) (1) in pertinent part provides: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination against 

or otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant for employment in 

any coal or other mine subject to this Act because such miner, 

representative of miners or applicant for employment has filed or 

made a complaint under or related to this Act, including a com- plaint notifying the operator or the operator's agent, oi:: the 

representative of the miners at the coal or other mine of an 

1678 

-· 

~· 

.. 

; 

.. 

.. 
discharged Marty P. Boden from his position as belt foreman at 

the Swanson Mine. For the reasons discussed below, I find that 

Respondent Lion Coal violated section 105(c) (1) when it discharged Mr. Boden in the afternoon of the same day that there had been 

an early morning Code-a-Phone inspection of the operator's Swanson Mine. It is undisputed that the Code-a-Phone inspection 

resulted from Boden's report to MSHA about unsafe conditions at 

the Swanson M.ine. 

Liability is also assessed against Respondent, Cougar Coal 

Company (Cougar Coal), as the successor to Lion Coal for the 

reasons set forth in my decision in Secretary of Labor. on behalf 

of Marty P. Boden, v. Lion Coal Company and Cougar Coal Company, 

successor to Lion Coal Company . 9 FMSHRC 1620, 1624 (Sept. 1995) . 

Having considered the evidence presented at the hearing and 

the record as a whole, I find that a preponderance of the substantial, reliable, and probative evidence establishes the 

Findings of Fact and further findings in the Discussion below: 

FINDINGS OF FACT 

1 . At all relevant times, Respondent Lion Coal and its 

successor Cougar Coal engaged in the production of coal at the 

Swanson Mine and, therefore, each is an operator within the 

meaning of section J(d) of the Mine Act. 

2. The Swanson Mine is an underground coal mine and is a 

mine as defined by section 3(h) of the Mine Act, the products of 

which affect interstate commerce. 

3. At all relevant times, Marty Boden was employed by 

Respondent Lion Coal as a belt foreman and as a miner as defined 

by section 3(g) of the Mine Act. 

4. Matt Breneman at all relevant times was the mine 

superintendent and manager at the Swanson Mine . He was the 

person with the highest authority at the mine site and had 

authority from the operator of the Swanson Mine to discharge Boden. · 

5. Marty Boden engaged in protected activity when on 

November 7, 1994, Mr. Boden contacted the MSHA offices in Delta, 

Colorado, and Arlington, Virginia, to report unsafe working 

alleged danger or safety or health violation in a coal or other 

mine or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of 

miners or applicant for employment on behalf of himself or others 

of any statutory right afforded by this Act. 

1 679 

.. 

~ 
conditions at the Swanson Mine. Sp~cifically, he complained 

about the belt rollers, the rock dusting and the returns. 

Boden's phone calls of November 7, 1994, caused MSHA to perform a 

Code-a-Phone inspection at the Swanson Mine on November 9, 1994. 

6. The Code-a-Phone message had safety complaints that were 

the same complaints that Boden had repeatedly made to management . The mine superintendent Breneman could tell from the complaints 

in the Code-a-Phone message that Boden was the one who made the 

complaints to MSHA that resulted in the inspection. After the 

Code-a-Phone inspection was completed, Matt Breneman talked to 

the mine's Board of Directors in Salt Lake City. Board members 

put the call on a speaker phone and board members R. Anderson 

(Dick), J. Lipscomb and Brian Steffensen participated in the 

call. Breneman discussed with them the inspection and the 

complaints set forth in the Code-a-Phone mes-sage. In the course 

of that conversation, Mr. Steffensen told Breneman to fire Marty 

Boden. Immediately on hanging up the phone Breneman discharged 

Mr. Boden. 

7. Mr. Boden was discharged the afternoon of November 9, 

1994, in retaliation for his complaints to MSHA about unsafe 

conditions at the Swanson Mine. Boden's complaints to MSHA 

resulted in the MSHA Code-a-Phone inspection of the mine on the 

morning of November 9, 1994. 

a. Boden was discharged for engaging in the above referenced protected activity. No affirmative defense was established. 

9. At the time of his discharge on November 9, 1994, Marty 

Boden's regular rate of pay was $1,000 - a week. 

10. Marty Boden's job at the Swanson Mine, but for his 

illegal discharge on November 9, 1994, would have continued up 

through April 17, 1995, the date his replacement, Dennis Keller, 

was laid off due to lack of work. 

11. Because of credit problems, the shareholders of Lion 

Coal voted to create Cougar Coal in order to continue .the operation of the Swanson Mine. Cougar Coal was incorporated in the 

state of Wyoming on November 29, 1994. 

12. On November 29, 1994, Lion Coal sold the company for a 

nominal fee and transferred its coal mining business and most of 

its assets to the newly formed Cougar Coal Company. 

13. After the November 29, 1994, sale and transfer stated 

above Cougar Coal continued to mine coal at its Swanson Mine 

without a break during the change of the operator from Lion coal 

to Cougar Coal. 

1680 
14. Cougar Coal is the successor of the Lion Coal Company. 

_15. At the August 29, 1995, hearing, Cougar Coal filed a 

Notice of Bankruptcy stating that "Respondent Cougar Coal Company 

is the Debtor in Possession in Bankruptcy No. 95C-21320, United 

States Bankruptcy court for the District of Utah, Central Division. cougar's voluntary petition for relief under Chapter 11 of 

the Bankruptcy Code was filed on March 15, 1995." This Notice of 

Bankruptcy was handed to Judge Cetti by counsel Brian W. Steffensen while Judge Cetti was sitting on the bench just moments 

before going back on the record with the hearing in this matter 

at 9 a.m. on August 29, 1995, with the request that it be filed. 

(Tr. I of 8/29/95 pg. 8). 

16. Counsel Brian w. Steffensen at all relevent times, was 

the secretary for Lion Coal and the secretary and a registered 

agent for Cougar Coal. 

DISCUSSION AND FURTHER FINDINGS 

The general principles governing analysis of discrimination 

cases under th Mine Act are well established. In order to 

establish a pri~a facie case of discrimination under section 

105(c) of the Act, a complaining miner bears the burden of proof 

in establishing that (1) he engaged in protected activity and (2) 

the adverse action complained of was motivated in some part by 

that protected 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 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of 

Robinette v. United Castle Coal Co . , 3 FMSHRC 817-18 (April 

1981). The operator may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was in no part motivated by protected activity. If an 

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

nevertheless may defend affirmatively by proving that it also was 

motivated by the miner's unprotected activity and would have 

taken the adverse action in any event for the unprotected activity alone. Fasula, supra; Robinette, supra. See also Eastern 

Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); 

Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59 (O . C. 

Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) 

(specifically approving the Commission's Fasula-Robinette test). 

Cf. NLRB v. Transportation Management corp. , 462 U. S . 393, 397-

413 (1983) (approving nearly identical test under National Labor 

Relations Act). 

Direct evidence of actual discriminatory motive is rare. 

Short of such evidence, illegal .motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v . Phelps Dodge Corp . , 3 FMSHRC 

2508, 2510-11 (November 1981), rev'd on other grounds sub nom. 

1681 

.. 

.· 

::. 
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (O.c. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

The Eighth Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in NLRB 

v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965): 

It would indeed be the unusual case in 

which the link between the discharge and the 

(protected) activity could be supplied 

exclusively by direct evidence. Intent is 

subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence. Furthermore, in analyzing 

the evidence, circumstantial or direct, the 

[NLRB] is free to draw any reasonable 

inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

knowledge by the operator of the miner's protected activities; 

hostility towards the miner because of his protected activity, 

and coincidence in time between the protected activity and the 

adverse action. · Chacon, supra at 2510. 

The Secretary presented the testimony of the mine manager 

and superintendent Matt Breneman; the belt foreman and Complainant Marty Boden; the MSHA special investigator Leslie Y. Lorenzo; 

the former company safety manager Anna Marie Boden; Ron Kalvis, a 

shop foreman; Greg Brown, who worked under Boden on. the belts; 

Dennis Keller, who took over Baden's duties as belt foreman when 

Boden was disch~rged; Ron Hoffman and Tara Whittaker. 

The Respondent presented primarily the testimony of management witnesses who testified that they were not satisfied with 

Mr. Baden's work performance as belt foreman and were also concerned about his use or possible misuse of a company gas card and 

company telephone. Their testimony indicated that Lion Coal 

management was in the process of investigating Mr. Baden's work 

performance and were planning to make a closer check on his work 

performance with the view of possibly terminating his employment before they became aware of Marty Boden's Code-a-Phone message to 

MSHA. 

I was impressed with the credibility of the testimony of 

Matt Breneman, the mine superintendent and manager of the Swanson 

mine. I credit his testimony. He, as well as other witnesses, 

testified that the safety complaints in the Code-a-Phone message 

were the same complaints that Boden had repeatedly made to management, and he (Breneman) coula tell from the complaints set 

forth in the Code-a-Phone message that Boden was the one who made 

the complaints to MSHA. After the Code-a-Phone message was 

received at the mine and the Code-a-Phone inspection completed, 

1682 
Matt Breneman in a long distance phone call to Salt Lake City 

discussed the matter with the mine's Board of Directors. The 

board members put his call on a speaker phone, and R. Anderson 

(Dick), J. Lipscomb and Brian Steffensen participated in the 

call. Breneman discussed with them the Code-a-Phone inspection 

and the complaints set forth in the Code-a-Phone message. In the 

course of that conversation Brian Steffensen admittedly told 

Breneman that he was "not afraid" to fire Marty Boden. The mine 

manager replied he had no reason to fire Boden. Brian Steffensen 

then told him to fire Boden for "malfeasance". Breneman hung up 

the phone, looked at Boden and said "they want me to fire you" 

for "malfeasance." He briefly discussed the situation with Boden 

and it was determined that in order not to jeopardize his own 

job, Breneman would have to do what he was told to do. He fired 

Boden . Boden then immediately left the mine . 

The record satisfactorily establishes that the reason given 

for firing Boden, "malfeasance", was pretextual. The evidence 

presented fails to establish that Boden misused the company gas 

card or misused the company phones as asserted by Respondent. 

It is worthy of note that Boden had no prior disciplinary 

action taken against him nor were there any letters of reprimand 

in his personnel file. He received no reprimands or warnings of 

any kind. Matt Breneman, Boden's supervisor, was certainly the 

person in the best position to evaluate Baden's work and testified that Boden had satisfactorily performed all duties. One of 

the miners on Boden's crew, Greg Brown, testified that Boden was 

a good supervisor and worked with the crew to get things done. 

While it is true that some needed maintenance work was not 

performed, the reason being that management would not authorize 

the necessary funds. It satisfactorily appears from the record 

that Boden did the best job he could do with what he had to work 

with. 

The preponderance of the evidence established that Boden was 

discharged on November 9, 1994, in retaliation for his protected 

activity in violation of S 105(c) of the Mine Act. 

The purpose of reinstatement is to place a miner~ as closely 

as possible, in the situation he would have occupied, but for the 

illegal discrimination. Boden w~s employed by Lion coal from 

September 1994 through November 9, 1994, as a belt foreman. His 

normal rate of pay was $1,000 a week. On his illegal discharge 

Boden was replaced by Dennis Keller who took over Baden's job of 

supervising the belt crew and his other duties as belt foreman. 

Dennis Keller was "laid off" April 17, 1996 due to lack of work 

at the Swanson Mine. The mine .was closing down at that time. 

The Secretary contends that Boden is entitled to back-pay at his 

normal rate of $1,000 a week from November 9, 1994, the date of 

his illegal termination, to April 17, 1995, the date Dennis 

1683 
Keller, who replaced him, was laid off due to lack of work. On 

review and evaluation of the evidence of record, I agree with the 

Secretary that Boden is entitled to back pay at the· rate of 

$1,000 a week for the period from the 9th of November 1994 

through the 17th of April 1995. 

COUGAR COAL COMPANY, SUCCESSOR TO LIOH COAL COMPANY 

It has been established that Respondent Cougar Coal is the 

successor to Lion Coal in the case of Lion Coal Company, Cougar 

Coal Comoany as successor to Lion Coal company. 17 FMSHRC 1620 

(Sept. 1995). 

The evidence established that on November 29, 1994, for 

$10 . 00 and other consideration, Cougar Coal assumed the right to 

the title and an interest in all assets of Lion Coal except for 

claims against the Selengos and their affiliates, cash on hand, 

current accounts receivable and inventory. (Gov't. Ex. 10-B) . After the November 29, 1994, transaction, the day-to-day operations at Swanson Mine continued by Cougar Coal without a break. 

The mine conti~ued to produce coal. The mine and the appurtenances associated with the mining activities remained the same. 

The workforce remained substantially the same. Both Mine 

Superintendent Gene Picco and Mine Manager George Herne, who have 

been employed at this mine for several years continued their 

employment with Cougar Coal. 

Mining methods and procedures did not change and the same 

jobs were required to be filled. Cougar Coal adopted all of Lion 

Coal's MSHA-approved plans and stated that they anticipate no 

change in mining practices. Cougar Coal used the same machinery, 

equipment and methods of production. 

George Herne, mine manager for cougar Coal, in his letter to 

the MSHA District Manager under the letterhead of Cougar Coal 

Company dated January 13, 1995, stated in relevant part: 

Cougar Coal Company has taken over the 

operations of the Swanson Mine, ID #48-00082 

from Lion Coal Company. At this time Cougar 

coal anticipates no change in the mining 

practices employed at the Swanson Mine. For 

this reason Cougar Coal .Company will continue 

to operate under Lion Coal Company's approved 

mining plans, and accepts these mining plans 

as their own. (Gov't. Ex. 10-A, pg. 4, Tr. 

4 79). 

In addition, the corporate officers and directors for Lion 

Coal Company and Cougar Coal Company are substantially the same 

as follows: 

1684 

.·· 

I 

~ 
James Lipscomb 

Hal Rosen 

- Chairman and President of Lion Coal 

company and President of Cougar Coal 

Company 

- Treasurer of Lion Coal Company and 

Treasurer of Cougar Coal Company 

Richard Anderson - Vice-President of Lion Coal Company and 

Vice-President of Cougar Coal Company 

Brian Steffensen - Secretary of Lion Coal Company and 

secretary and registered agent for cougaz 

Coal Company. Brian Steffensen is also 

counsel of record who was present and 

participated in all proceedings in 

this matter. 

Thus, under the nine-factor successorship guideline 

enunciated Munsey v. Smitty Baker Coal Company Inc., 2 FMSHRC 

3463 (1980) Cougar coal is the successor to Lion Coal and, as 

such, along wi~h Lion .Coal, is properly subject to joint and 

several liability for back-pay to Marty Boden and the civil 

penalty for the violation of lOS(c) of the Act. 

On consideration of the statutory criteria in section llO(j 

of the Act that is relevant in this discrimination case., partic\ 

larly the financial situation of the Respondents inability to 

continue mining, the closure of the mine and the continuing 

bankruptcy proceeding of the successor Cougar coal Company, I 

conclude the appropriate civil penalty in this case is $400.00. 

ORDER 

It is ORDERED that the Respondent, Lion Coal Company and 

Cougar Coal Company jointly and severally: 

1. Pay Marty P. Boden full back-pay with interest for the 

period from November 9, 1994, through April 17, 1995, at his 

normal rate of pay of $1,000.00 a week less appropriate Federal 

and State tax withholding payable to said governmentai agencies. 

2 . Expunge from Marty P. Boden's personnel records all 

references to his discharge and the circumstances involved in the 

discharge. 

3. Pay a civil penalty in the amount of $400.00 to the 

Secretary of Labor for the violation of section lOS(c) of the 

Act. 

1685 
4. This decision constitutes my final disposit.ion of this 

proceeding. 

Distribution: 

Augu t F. cetti 

Administrative Law Judge 

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716 

(Certified Mail) 

Brian W. Steffensen, Esq., LION COAL COMPANY, 675 East 2100 

South, Suite 350, Salt Lake City, UT 84106 (Certified Mail) 

COUGAR COAL COMPANY, 1554 9th Street, Rock Springs, WY 82901 

(Certified Mail) 

/sh 

1686 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2.7 1996 

JIM WALTER RESOURCES, INC., 

Contestant 

CONTEST PROCEEDING 

v. 

Docket No. SE 96-112-R 

Citation No. 4476618; 1/3/96 

No . 4 Mine 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Mine ID 01-01247 

Appearances: 

DECISION 

R. Stanley Morrow, Esq., Jim Walter Resources, 

Inc., Brookwood, Alabama for Contestant. 

William Lawson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama for 

Respondent. 

Before: Judge Fauver 

This is a contest proceeding under § 105 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 .e.t. ~· The 

parties have filed cross motions for summary decision. ,, 

Having considered the stipulations, exhibits, and the record 

as a whol e, I f i nd that the record establishes the following 

Findings of Fact and further findings in the Discussion below: 

FINPINGS OF FACT 

1. Jim Walter Resources, Inc. , operates an underground coal .. 

mine, known as Mine No. 4, which produces coal for sale or use in 

or affecting interstate commerce. 

2. On January 3, 1996, it was operating nonpermissible 

diesel-powered buses and locomotives within 150 feet of pillar 

workings in the No. 4 Mine. The diesel-powered vehicles 

1687 
contained electrical components including an alternator, battery, 

starter, circuit breakers, diodes, fuses, relays, res_istors, and 

solenoids. 

3. Based upon the above facts, the Secretary issued a 

citation charging a violation of 30 C.F.R. § 75.1002.1-(a). 

DISCUSSION WITH FURTHER FINPINGS. CONCLUSIONS 

General Principles 

"Where the language of a statutory or regulatory provision 

is clear, the terms of that provision must be enforced as they 

are written .... " Utah Power & Light Co., 11 FMSHRC 1926, 1930 

(1989); see also Chevron U.S . A .. Inc. v. Natural Resources 

Defense Council. Inc . 467 U.S. 837, 842-43 {1984). The "ordinary 

meaning of its words prevails, and it cannot be expanded beyond 

its plain meaning" (Western Fuels-Utah. Inc., 11 FMSHRC 278,283 

(1989) (citing Old Colony R. R. v. Commissioner, 284 U. S. 552, 560 

(1932)) . 

Under the Mine Act, if a statutory provision is ambiguous or 

silent on a point in question, an inquiry is required into the 

reasonableness of the Secretary's interpretation. If the 

Secretary's interpretation is found to be reasonable, it is given 

deference by the Commission and the courts. Special weight is 

given to an agency's interpretation of its own regulation. The 

Supreme ' Court has stat~d that the agency's interpretation is "of 

controlling weight unless it is plainly erroneous or inconsistent 

with the regulation." Bowles v. Seminole Rock & Sand Company, 

325 U.S. 410, 414 (1945); and see Ford Motor Credit Co. v . 

Mil hollin, 444 U.S. 555, 566 (1980 ) ; and Secretary of Labor .ez 

~. Bushnell v. Connelton Industries. Inc, 867 F.2d 1432, 1433, 

1435 (D.C. Cir. 1989). To warrant deference the agency's 

interpretation must be consistent with due process. That is, an 

agency's interpretation of its regulation cannot be said to be 

reasonable if the regulation as in~erpreted fails to give fair 

warning of the conduct required or prohibited. 

1688 
Disposition 

Section 75.1002-l(a) provides in part: 

(a) Electric equipment other than trolley wires, 

trolley feeder wires, high-voltage cables, and 

transformers shall be permissible, and maintained in a 

permissible condition when such equipment is located 

with 150 feet from pillar workings 

The controlling issue is whether§ 75.1002-l(a) applies to 

Contestant's diesel-powered buses and locomotives. 

Section 75.1002 is a verbatim adoption of § 310(c) of the 

1969 Coal Mine Health and Safety Act, which was not changed by 

the 1977 Amendments to the 1969 Act. Section 310(c) was enacted 

to prevent certain nonpermissible electric equipment 

(specifically,. "trolley wires and trolley feeder wires, highvoltage cables "-and transformers") from being located with 150 

feet of pillar workings. The standard is intended to "prevent 

such equipment from being located in the ventilating current 

which might contain [explosive] mixtures of gas and [float coal] 

dust." 13 F.R. 11777, 11778 (Jun e 14, 1972). Section 310(c) does 

not specify other electric equipment, such as electric-powered 

vehicles. Because of this omission, in 1972 the Secretary 

proposed an amendment to § 75.1002 by adding § 75.1002-1, stating 

it was needed because "electric equipment other than trolley 

wires trolley feeder wires, high-voltage cables, and transformers 

may be located with 150 feet form pillar workings ... and are 

subject to the [same) hazards . " 37 F.R. 11777, 11778 {June 14, 

1972). The amendment became effective February 23, 1973. 38 

F.R . 4974-76. 

The Secretary contends that diesel-powered vehicles are 

"electric equipment" within the meaning of § 75.1002-l(a) because 

they contain electric components, e.g. alternators, batteries, 

starters, solenoids, and circuit . breakers, and the vehicles and 

components present the same hazards as other nonpermissible 

equipment. 

This is a case of first impression. 

decisions give some guidance. 

1689 

However, several 
In U.S. Steel Mining Company. Inc., 15 FMSHRC 1541 (1993), 

the Commission held that "electrical circuits that pe.rform 

electrical functions exclusively" and components of such 

circuits, such as circuit breakers, are "electric equipment" 

within the meaning of§ 75.S12 ·· (which requires examination and 

testing of "electric equipment"). The Commission gave deference 

to the Secretary's interpretation, which it found to be 

reasonable and supported by the definition of "equipment" in the 

Institute of Electrical and Electronic Engineers Standard 

Dictionary of Electrical and Electronic Terms. 1 

In Affiax Coal Company, 16 FMSHRC 1837 (1994), the trial judge 

held that "electric equipment" as used in § 75.400 (which 

prohibits combustible accumulations "in active workings, or on 

electric equipment therein") includes diesel-powered equipment. 

The judge's rationale was that "the Congressional concern about 

electric equipment as a potential ignition source is equally 

applicable to diesel equipment." On appeal the Commission 

declined to adopt this rationale. Instead, the Commission 

deferred to the Secretary's interpretation, holding that the 

phrase "in active workings" includes both a physical area of a 

mine and all equipment located within it whether electric or 

nonelectric. It thus declined to hold that diesel equipment is 

"electric equipment" under the regulation. 

In Mettiki Coal Company, 11 FMSHRC 2435 (1989) , I held that 

§ 75.512's requirement to inspect "electric equipment" does not 

apply to diesel-powered locomotives. I observed that after the 

citation was issued, the Secretary proposed a regulation to 

require that "all diesel-powered equipment [in underground coal 

mines] be examined and tested weekly .. . ", with a preamble 

indicating that § 75 . 512 does not apply to diesel-powered 

equipment. I also observed that the Secretary's position in 

Mettiki was inconsistent with various existing and proposed 

regulations, in that wherever the Secretary intended to apply a 

standard to "mobile diesel-powered .transportation equipment," 

"diesel-powered equipment," "electrical components on mobile 

1The IEEE Dictionary defines "equipment" as: "A general term 

including material, fittings, devices, appliances, fixtures, 

apparatus, and the like used as a part of or in connection with, 

an electrical installation." 

1690 
diesel-powered transportation equipment," or "All electrical and 

diesel-powered equipment," those words were stated in the 

regulation or proposed regulation . 2 

A striking example is the Secretary's proposed standard for 

§ 57.36302 ("Permissible Equipment") which provides in part: "All 

electrical and diesel-powered equipment used in or beyond the 

last open crosscut shall be permissible. * * * Nonpermissible 

electrical and diesel-powered equipment shall be kept at least 

150 feet from pillar recovery workings ... . " SO F.R. 23612, 23639 

(June 4, 1985). This proposed regulation is inconsistent with 

the Secretary's contention that the term "electric equipment" in 

§ 75.1002- l (a ) includes diesel-powered equipment. 

Another example is the Secretary's proposed§ 75.1907(a) (1), 

which would require that diesel-powered equipment be permissible 

if used in locations where permissible electric equipment is 

required . The Secretary's position is that "the proposed 

standard removes any confusion wh ich may exist as to whether 

nonpermissible diesel-powered equipment can operate within 150 

feet of the longwall face" (Secretary's counsel's letter, 

August 28, 1996 ) . 

In light of the confusion in the regulations, I find that 

the Secretary's interpretation that diesel vehicles are '\electric 

equipment" under § 75.1002-1 (a) is not entitled to special 

weight. However, based upon an independent analysis, I conclude 

that the prohibition of § 75.1002-l(a) reasonably applies to 

nonpermissible diesel-powered equipment. 

Section 75 . 1002 - l(a) supplements § 75.1002 by providing that 

"Electric equipment other than trolley wires, trolley feeder 

wires, high-voltage cables, and transformers shall be permissible 

. . . when located within 150 feet from pillar workings· ... " 

(emphasis added) . Because of the focus upon all electric 

equipment, the term "electric equipment" in§ 75.1002-l(a) 

reasonably includes electric components of diesel-powered 

vehicles. This conclusion is supported by the Commission's 

2See, for example, 30 C.F.·R. §§36.2(a), 36.3-36.6, 36.9, 

36.28-36.31, 36.41 and proposed rules published at 54 F.R. 40950 

(October 4, 1989), and 50 F.R. 23612 (June 4, 1985). 

1691 
decision in U.S. Steel Mining Company, supra. Since § 75.1002-

1 (a) applies to the electric components of diesel-powered 

vehicles, it would be contrary to the logic and safety intent of 

the standard to hold that nonpermissible diesel-powered vehicles 

may be operated within the restricted area although their 

electric components must be kept in permissible condition. It is 

axiomatic that an interpretation of a regulation should be 

rejected if it produces an absurd result or frustrates the 

purpose of the underlying statute. Natural Resources Defense 

Council. Inc. v. E,EA, 907 F.2d 1146, 1156 (D.C. Cir. 1990). 

Accordingly, I hold that the prohibition of § 75.1002-l(a) 

applies to Contestant's diesel-powered vehicles. 

CQNCLUSIONS OF LAW 

1. Contestant's No. 4 Mine is subject to the Act. 

2. Contestant violated§ 75.1002-l(a) as alleged in 

Citation No. 4476618. 

ORDER 

WHEREFORE IT IS ORDERED that Citation No. 4476618 is 

AFFIRMED and this proceeding is DISMISSED. 

u)~ ' v William F~ ~ Administrative Law Judge 

Distribution: 

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. Box 

133, Brookwood, AL 35444 (Certified Mail) 

William Lawson, Esq., Office of t~e Solicitor, U.S. Department of 

Labor, 150 Chambers Building, Highpoint Office Center, 100 

Centerview Drive, Birmingham, AL 35216 (Certified Mail} 

nt 

1692 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

June 6, 1996 

SECRETARY OF LABOR, 

MINE SAFE TY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v . 

ROGER CHRISTENSEN, EMPLOYED 

BY GEORGIA-PACIFIC 

CORPORATION, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFE TY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JESSE MARTINEZ , EMPLOYED 

BY GEORGIA-PACIFIC 

CORPORATION, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 96-98-M 

A. C. No . 48-01019-05525A 

Gypsum Quarry No . 6 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 96-99-M 

A. C. No . 48-01019-05526A 

Gypsum Quarry No. 6 

ORDER DENYING MOTION TO DISMISS 

ORDER ACCEPTING LATE FILING 

ORDER OF ASSIGNMENT 

These cases are petitions for the assessment of civil 

penalties filed by the Secretary of Labor against the individual 

respondents, Roger Christensen and Jesse Martinez, under 

section llO(c) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 810(c), hereinafter referred to as the "Act". 

The instant cases are based upon a citation dated August 22, 

1994, issued to respondents' employer, Georgia-Pacific -Corporation, for an alleged violation of the Act and its ma~datory 

standards. A penalty petition was previously filed under section 

llO(a) of the Act , 30 U.S.C. § 810(a), against the employer and 

that case, Docket No . WEST 95-326 , is presently on stay before 

Administrative Law Judge August F. Cetti pending assignment of 

these cases. 

Respondents have filed motions to dismiss on the ground that 

the Secretary has failed to timely file the penalty petitions. 

The Secretary filed a response. 

1693 
On April 5, 1996, the respondents filed a supplement in 

support of their motions to dismiss advising that the inspector 

who issued the citation for these cases recently died of cancer. 

Respondents assert that they are further prejudiced by this 

development. 

On April 15, 1996, an order was issued directing the Solicitor to respond to the respondents' April 5 supplemental reply and 

advise how she wished to proceed in this matter. 

On May 15, 1996, the Solicitor advised that a mistake has 

occurred and the inspector who issued the citation for these 

cases has not died and is available to testify. It remains to be 

resolved whether the respondents' original motion to dismiss 

should be granted. 

On November 13, 1995, the Secretary of Labor issued proposed 

penalty assessments against respondents. Thereafter, respondents 

filed timely requests for hearing which were received by the 

Secretary on December 7, 1995 . The Secretary had 45 days after 

the hearing requests to file the penalty petitions. 29 C. F.R. 

§ 2700.28 . The petition for Docket No. WEST 96-98-M was filed on 

February 6 , 1996, and the petition for Docket No. WEST 96-99 was 

filed on February 1, 1996. 29 C.F.R. § 2700.S(d) . The petitions 

were due on January 22, 1996, and therefore, were 10 and 16 days 

late respectively. 

The Solicitor attached a notice to her penalty petitions 

stating that the petitions were untimely because the employees of 

the Department of Labor together with many other parts of the 

Government were placed on furlough from· December 15, 1995, to 

January 8, 1996. The Solicitor advises that these cases were 

received by the Denver Office of the Solicitor on December 24, 

1995, when the office was closed due to the shutdown. When the 

office reopened, petitions were filed with the Commission in the 

order they were received. In addition, the Solicitor states that 

the Secretary requested an extension of time in a letter sent to 

the undersigned prior to the shutdown advising that certain 

filings would be late due to the shutdown and requesting that the 

time for filing be tolled. 

In seeking to have these cases dismissed because the petitions were not timely filed within 45 days, respondents argue 

that the Secretary has failed to demonstrate adequate cause for 

the late filing. Respondents assert that their requests for 

1694 
hearing were filed one week prior to the furlough and the Government reopened two weeks prior to the date the petitions were due. 

According to respondents, they have been prejudiced because the 

citation in question was issued over a year and half ago and they 

have not had access to all information supporting the petitions. 

The arguments of respondents are not persuasive. The delay 

was caused by the three week partial government shutdown which 

caused a backup in the Solicitor's work. When the Government 

reopened, it was not just a matter of filing the petitions in these 

cases, but of coping with all the work which had not been processed 

for the period involved. The Solicitor's approach of filing 

petitions in order of their receipt was fair and reasonable . The 

shutdown constituted good cause for the Solicitor's brief delay in 

filing the petitions. Secretary of Labor v . Bruce Eaton, Employed 

by Austin Powder Company, Docket No . YORK 96-13-M, unpublished 

(March 3 1996). See ~, Salt Lake County Road Department, 

3 FMSHRC 1714, 1716 (July 1981); Rhone-Poulenc of Wyoming Co . , 

15 FMSHRC 2089· (Oct. 1989). 

Respondents allege they have been prejudiced by the delay in 

filing the petitions. Much of the delay occurred between the 

issuance of the citation and the Notice of Proposed Assessment, 

almost fifteen months. I previously have held that a seventeen 

month delay in assessing penalties against an individual under 

section 110(c) does not constitute grounds for dismissal. A 

comprehensive investigation and various levels of internal review 

are necessary for a proper evaluation of agent liability and the 

existence of a knowing violation in a llO(c) case. Secretary of 

Labor v. James Lee Hancock, Employed by Pittsburg & Midway Coal 

Co., 17 rMSHRC 1671, 1674-1675 (September 1995) . See also, Cedar 

creek Quarries et al. , 17 FMSHRC 1509 (August 1995r:- AIS'O, 

respondents have furnished no specifics beyond the general 

assertion of prejudice. I will not in these cases infer 

prejudice solely from the passage of time. 

In light of the foregoing, the respondents' motions to 

dismiss these cases are DENIED , and it is ORDERED that the late 

filed penalty petitions be ACCEPTED. 

It is further ORDERED that these cases be assigned to 

Administrative Law Judge Cetti. 

1695 

·- ·-·--···--· . .... . 
All future corranunications regarding these cases should be 

addressed to Judge Cetti at the following address: 

Federal Mine Safety and Health 

Review Commission 

Office of Administrative Law Judges 

Colonnade Center 

Room 280, 1244 Speer Boulevard 

Denver, CO 80204 

Telephone No. 303-844-3993 

___ -=-_:----T""\=~ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 

Charles H. Morgan, Esq., Alston & Bird, One Atlantic Center, 1201 

West Peachtree Street, Atlanta, GA 30309-3424 

Mr . Paul Larson, Production Manager, Georgia-Pacific Corp., P.O. 

Box 756, Lovell, WY 82431 

Cement, Lime & Gypsum Workers, 161 Washakie, Lovell, WY 82431 

/gl 

1696 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, !TH FLOOR 

WASHINGTON, D.C. 20006 

August 23, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v . 

R. J. TAGGART CONSTRUCTION 

COMPANY, I NCORPORATED , 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 96-245-M 

A. C. No . 35-03287-05513 

Taggart Portable 

DECISION DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

Before: Judge Merlin 

This case is before me upon a petition for assessment of a 

civil penalty under section 105(d) of the Federal Mine Safety and 

Heal th Act of 1977. The parties have filed a joint motion to 

approve settlement for the one violation in this case . A reduction 

in the penalty from $9,500 t o $6 , 000 is proposed. A fatality is 

involved. 

Citation No. 3918001 was issued as a 104(d) (1) citation for 

a violation of 30 C.F.R. § S6.9200(d) because a miner, who was 

being trained on a front-end loader, was riding unsecured on the 

outside of the operator's cab. The loader backed over a large 

rock causing the miner to fall to the ground. He was run over by 

one of the loader tires and killed. 

I cannot approve the settlement motion . The parties are 

reminded that the Commission and its judges bear a .heavy responsibility in settlement cases pursuant to section 110.(k) of the 

Act . 30 U. S .C. § 820(k); See, S . Rep. No . 95-181, 95th Cong., 1st 

Sess. 44-45, reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95tilcong . , ' 2d Sess., Legislative ttistory of 

the Federal Mine Safety and Health Act of 1977, at 632-633 

(1978). It is the judge's responsibility to determine the appropriate amount of penalty, in accordance with the six criteria set 

forth in section llO(i) of the Act. 30 U. S . C. ·§ 820(i); Sellers.-

burg Stone Company v. Federal .Mine Safety and Health Review 

Commission, 736 F . 2d 1147 (7th Cir. 1984). 

1697 

., 

.• 
The violation in this case is the ultimate in gravity. 

However, the settlement motion fails to discuss any of the facts 

surrounding the fatality or identify the reasons for the proposed 

reduction. The parties have submitted nothing more than a 

boilerplate motion. I cannot approve any penalty for this 

fatality when I do not know what happened. There is no excuse 

for the Solicitor to submit such a motion which accomplishes 

nothing except to create additional and unnecessary work for the 

Office of the Chief .Administrative Law Judge. 

In light of the foregoing, it is ORDERED that the motion for 

approval of settlement be DENIED. 

It is further ORDERED that within 30 days of the date 

of this order the parties submit appropriate information 

to support their settlement motion. Otherwise, this case will be 

set for hearing. 

- Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Faye von Wrangel, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 

Mr. Robert J. Fisher, Accountant, P. O. Box 7298, Salem, OR 97303 

Douglas White, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, U. S. Department of Labor, Room 414, 4015 Wilson 

Boulevard, Arlington, VA 22203 

/gl 

1698 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, J).C. 20006 August 26, 199l 6 

SECRET.ARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MANALAPAN MINING COMPANY, 

INCORPORATED, 

Respondent 

Docket No. KENT 96-252 

A. C. No. 15-12602~03584 

Preparation Plant 

ORDER ACCEPTING APPEARANCE 

DECISION APPROVING PARTIAL SETTLEMENT 

DECISION DISAPPROVING PARTIAL SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

ORDER TO PAY 

Before: Judge Merlin 

It is ORDERED that the Conference and Litigation Representative (CLR) be accepted to represent the Secretary in accordance 

with the notice of limited appearance he has filed with the 

penalty petition. Cyprus Emerald Resources Corporation, 

16 FMSHRC 2359 (November 1994). 

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. The parties have filed a joint motion to 

approve settlements for the five violations in this case . A 

reduction in the penalties from $762 to $475 is proposed. 1 

The parties propose to settle one of the five violations, 

Citation No . 4243577, for the originally assessed penalty of $50. 

I have reviewed this violation in light of the six criteria and 

determine that this proposed settlement is appropriate. 

With respect to the four remaining violations, the parties 

propose reductions in the penalties. 

1 The CLR has subsequently filed a motion to amend the 

settlement to reflect the correct settlement amount as $474 

instead of $634. The motion is granted. 

1699 
Citation No. 4243542 was issued for a violation of 30 C.F.R. 

§ 77.401(a) (2) because a bench grinder was not provided with a 

tool rest on either grinding wheel. The originally assessed 

penalty was $178 and the proposed settlement is $50. The CLR 

advises that the grinder was inoperable at the time because the 

moto~ was burned out. Citation No. 4243545 was issued for a 

violation of 30 C.F.R. § 77.205 because the steps leading to a 

conveyor belt were obstructed with loose coal. The originally 

assessed penalty was $178 and the proposed settlement is $125. 

Citation No. 4243576 was issued for a violation of 30 C.F.R. 

§ 77.401(a) (2) because a tool rest for a Champion Blower Floor 

Model bench grinder was not adjusted as close as practical to the 

wheel. The originally assessed penalty was $178 and the proposed 

settlement is $125 . Citation No. 4243581 also was issued for a 

violation of 30 C.F.R. § 77.401(a) (2) because the tool rest for a 

Queen City Floor Model grinding machine was not as close as 

practical to the wheel. The originally assessed penalty was $178 

and the proposed settlement is $125. The CLR advises that the 

significant and substantial designations and negligence find{ngs 

for all these violations remain unchanged. 

I cannot approve the settlement motion as submitted for 

these four violations. The parties are reminded that the Commission and its judges bear a heavy responsibility in settlement 

cases pursuant to section llO(k) of the Act. 30 U.S.C. § 820(k); 

See, s. Rep. No. 95-181, 95th Cong., 1st Sess. 44-45, reprinted 

in Senate Subcommittee on Labor, Committee on Human Resources, 

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

Safety and Health Act of 1977, at 632-633 (1978). It is the 

judge's responsibility to determine the appropriate amount of 

penalty, in accordance with the six criteria set forth in section 

llO(i) of the Act. 30 U. S.C. § 820(i); Sellersburg Stone 

Company v. Federal Mine Safety and Health Review Commission, 736 

F.2d 1147 (7th Cir. 1984). A proposed reduction must be based 

upon consideration of these criteria. 

The parties off er an explanation for the reduction proposed 

for Citation No. 4243542, but the recommended penalty amount of 

$50 for this citation is usually reserved for non-significant and 

substantial violations. As noted above, the parties do not 

request any modification and maintain that the violation remains 

significant and substantial. However, the explanation offered 

for the reduction would support a modification deleting 

significant and substantial. 

1700 
With respect to the other three violations, Citation Nos . 

4243545, 4243576 and 4243581 where a reduction from. $178 to $125 

is sought for each, there are no reasons or recommendations to 

support the reductions. 

This motion is atypical. Conference and Litigation 

Representatives routinely submit detailed motions which support 

their recommendations. 

In light of the foregoing , it is ORDERED that the motion for 

approval of settlement for Citation No. 4243577 be APPROVED . 

It is further ORDERED that the motion for approval of 

settlements for Citation Nos. 4243542, 4243545, 4243576 and 

4243581 be DENIED. 

It is further ORDERED that within 30 days of the date of 

this order the parties submit appropriate information to support 

their settlement motion for Citation Nos . 4243542, 4243545, 

4243576 and 4243581 . Otherwise, this case will be set for 

hearing. 

It is further ORDERED that within 30 days of the date of 

thi s order the operator PAY the $50 penalty for Citation No . 

4243577. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution : (Certified Mail) 

Ronnie R. Russell, Conference & Litigation Representative, U.S. 

Department of Labor, MSHA, HC 66, Box 1762, Barbourville, KY 

40906 

Douglas White, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, U.S . Department of Labor, 4015 Wilson Blvd. , Suite 

414, Arlington , VA 22203 

1701 
Mr. Richard D. Cohelia, Safety Director, Manalapan Mining Co., 

Inc., P.O. Box 311, Brookside, KY 40801-0311 

/gl 

1702 
FEDERAL HINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

September 4, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitione r 

v. 

NEWMONT GOLD COMPANY, 

Respondent 

: 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 95-434-M 

A. C. No. 26-00500-05542 

Docket No. WEST 95-467-M 

A.C. No . 2 6-00500-55443 

South Area - Gold Quarry 

ORDER DENYING MOTION TO DEEM ADMISSIONS ADMITTED 

The Secretary filed a motion entitled "Motion to Deem 

Admissions Admitted and to Allow Adverse Inferences or, in the 

Alternative, to Continue Trial." In the motion, the secretary 

states that Newmont Gold Compa ny {"Newmont") failed to respond to 

his discovery requests. He states that he needs this information 

in order to prepare for hearing set to commence on October 16, 

1996. The Secretary asks that he be allowed to draw adverse 

inferences from Newmont's failure to respond, and specifically 

asks that all of the Secretary's requests for admission be deemed 

admitted. In the alternative, the Secretary asks that the 

hearing in these cases be continued. 

Newmont filed answers to the Secretary's discovery requests 

on August 26, 1996. Newmont states that on July 31, 1996, it 

informed the Secretary that it would need more time to respond to 

these discovery requests because of the number of requests made 

and the complexity of the requests. The Secretary's motion was 

received by my office on August 20, 1996 . 

Given the fact ·that Newmont has· now responded to the discovery requests and that these requests were complex and 

numerous, the Secretary's motion is DENIED. The Secretary's 

request for a continuance is also DENIED. Because the hearing is 

a little over a month away, the parties SHALL make every effort 

t<:> respon~ to discovery as soon as possibl7 . :i; .am--av-.dlable to 

discuss, in a conference call, whet a disc6very c off date 

should be established, if the i one. 

Richard W. Manning 

Administrative Law Judge 

1703 
FEDERAL MINE SAFETY AND HEALTH RBVJ:EW COMMISSION 

1244 SPEER BOULEVARD #.280 

DENVER, CO 80204-3582 

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

September 4, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Nfil:t"MONT GOLD COMPA?~Y, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 95-434-M 

A.C. No. 26-00500-05542 

Docket No. WEST 95-467-M 

A.C . No. 26-00500-55443 

South Area - Gold Quarry 

ORDER DENYING MOTION TO COMPEL 

ORDER DENYING CROSS-MOTION FOR PROTECTIVE ORDER 

The Secretary of Labor filed a motion to compel Newmont Gold 

company ("Newmont") to answer his discovery requests. Newmont 

filed a response in opposition to the Secretary's motion and a 

cross-motion for a protective order. The Secretary filed a 

response to Newmont's cross-motion. For the reasons set forth 

below, I deny both motions. 

I. Motion to Compel 

The Secretary's motion to compel seeks responses to his 

first set of discovery requests, which include 35 requests for 

admission, 30 requests for the production of documents, and 30 

interrogatories. These requests were made on June 28, 1996. 

Newmont filed answers to these discovery requests on August 

26, 1996. In response to the Secretary's motion, Newmont states 

that on July 31, 1996, it informed the Secretary that it would 

need more time to respond to these requests because of the number 

of requests made and the complexity of the requests. The motion 

to compel was received by my office on August 1, 1996. 

Given the fact that Newmont has now responded to the discovery requests and that these requests were complex and numerous, I deny the Secretary's motion to compel. 

The Secretary's motion also asks that I compel Newmont to 

answer his second set of discovery requests. This part of the 

Secretary's motion is discussed below. 

1704 
II. Cross-Motion for Protective Order 

Newmont filed a cross-motion for a protective order to 

prohibit the Secretary from engaging in ex parte contacts with 

Newmont employees and requiring the Secretary to disclose all 

previous ex parte contacts. In the cross-motion, Newmont asserts 

that counsel for the Secretary communicated with Newmont employees about these proceedings despite the fact that counsel knew 

that Newmont is represented by an attorney. Counsel for Newmont 

states that such communications were unethical because they 

violated the ABA Model Rules of Professional Conduct. Newmont 

cites a number of cases where courts imposed protective orders to 

prevent opposing counsel from conducting ex parte interviews with 

current employees of the corporate party. Newmont requests that 

the protective order cover all Newmont employees, including 

hourly employees. 

In response, the Secretary argues that the Secretary may 

"ethically contact rank and file, non-agent, non-supervisory 

employees of mine operators" without the permission of counsel 

for the operator. (Sec. Response at 2-3). He also contends that 

he is authorized by the Federal Mine Safety and Health Act to 

directly contact miners without the permission of counsel for the 

operator. Finally, counsel for the Secretary states that she did 

not violate ethical standards by sending a letter to two of 

Newmont's employees. 

It is clear that counsel for the Secretary sent a form 

letter to two Newmont employees. The letter states that the 

employees gave statements to an MSHA investigator and that the 

Secretary's attorney needs to discuss "the health conditions 

during- your employment with Newmont, particularly with regard to 

the exposure of mercury •.•. " (Cross-motion, Attachment 1) The 

letter asks the employee to fill out an enclosed form and return 

it to the Secretary. The form requests the_ address, day phone 

number, and evening phone number of the e.mployee. The two 

particular employees may be salaried employees, but that is not 

entirely clear. Neither employee returned the enclosed form. 

Newmont correctly states that the Mine Act holds a mine 

operator strictly liable for safety and health conditions at its 

mine. As a consequence, it argues that any Newmont employee, 

including the two subject employees, could potentially take 

actions or make statements to the Secretary that could impute 

liability to Newmont under 30 u.s.c. § 820(a), setting forth 

civil penalties, and section 820(d), setting forth criminal 

penalties. Newmont cites Rochester and Pittsburgh Coal Co., 13 

FMSHRC 189, 194 (February 1991), in which the Commission stated 

that "a rank-and-file employee •· .. is an agent of an operator 

when carrying out the required examinations entrusted to him by 

the operator." 

1705 
The parties thoroughly briefed this issue. The above 

summary does not include all of the arguments made. I agree with 

the Secretary's position on this issue, as set forth at pages 1 

through 22 of his response t~ Newmont's cross-motion. I find 

that counsel for the Secretary did not engage in unethical 

conduct when she sent letters to Newmont employees who had given 

statements to the MSHA special investigator. The ca~es cited by 

Newmont involved private parties. The ethical standards with 

respect to ex parte contact differ when the party involved is a 

federal enforcement agency, such as the Department of Labor. The 

U. S. Department of Justice has developed ethical standards that 

its attorneys are required to follow when contacting employees of 

a represented corporation. The standard provides that a government attorney should not contact a current employee of a represented party if the employee is a controlling individual. 28 

c.F.R. § 77.lO(a). A controlling individual is defined as "a 

current high level employee who is known by the ·government to be 

participating as a decision maker in the determination of the 

organization's legal position in the proceeding." Id. The preamble to this rule states that "organizations should not be 

shielded from effective criminal and civil law enforcement 

prosecution simply by retaining counsel." (59 Fed. Reg. 39910, 

39924, as quoted in Sec. Response at 4-5). I find that the 

general principles established by the Department of Justice are 

applicable to these cases. 

The Secretary states that it does not intend to contact 

"managers, supervisors, or agents of the respondent." (Sec. 

Response at 7). The Secretary further states that he will not 

consider the acts or omissions of the miners that he wants to 

contact to be "legally imputed" to Newmont or their statements to 

be "admissions" binding on Newmont. Id. The Secretary contends 

that a rank-and-file miner becomes an agent of the operator only 

if the operator delegates a specific statutory duty to the miner 

and then only to the extent the miner is acting within the scope 

of this specific duty. Finally, the Secretary states that he 

"has no intention or desire to contact, even in a preliminary 

way, the respondent's agents, supervisors, or managers outside of 

the formal discovery process." Id . at 23. 

The Secretary has considerable enforcement authority under 

the Mine Act. Part of this autho~ity includes the right to 

confer with miners about safety and healtb conditions at the 

mine. 30 u.s.c. § 813. The Secretary is not required to obtain 

the operator's prior approval before discussing health or safety 

conditions with miners. The Mine Act defines a miner as "any 

individual working in a coal or other mine." 30 u.s.c. § 802(g). 

The Commission's rules of procedure recognize this right by 

prohibiting its judges from disclosing or ordering the Secretary 

to disclose to a mine operator or his agent the name of an 

informant who is a miner. 29 C.F.R. § 2700.61. 

1706 
I conclude that Newmont's arguments set forth in its crossmotion for a protective order lack merit. As stated above, I 

base my conclusion on the Secretary's arguments set forth in his 

response to the cross-motion, · which I have briefly summarized 

above. Counsel for the secretary may informally contact Newmont 

employees who are not "agents, supervisors, or managers" of the 

company. 

III. Conclusion and Order 

Given my ruling set forth above, Newmont has several 

options. First, it can rely on counsel for the Secretary's 

assurance that she will not informally contact its agents, 

supervisors, or managers. I conclude that this assurance was 

made in good faith and note that this has been the Secretary's 

policy under the Mine Act. Second, Newmont may instruct its 

agents, supervisors and managers not to discuss the issues raised 

by these cases with representatives of the Secretary. Third, 

Newmont may respond to the Secretary's second discovery request 

by providing counsel with names and other pertinent information 

about those employees that Newmont believes are agents, supervisors, or managers of the company. I will resolve any disputes 

if the Secretary believes that one or more of the individuals 

listed is not an agent, supervisor, or manager of the company. 

Because I have ruled in favor of the Secretary with respect 

to Newmont's cross-motion for a protective order, I deny the 

Secretary's motion to compel with respect to his second discovery 

request. As a result of my ruling, the Secretary does not need 

this information. Newmont may provide all or part of such information as it wishes, as described above. Of course, I expect the 

counsel for the Secretary to adhere to her assurance that she 

will not attempt to informally contact Newmont's agents, supervisors, or managers, and that when she contacts an employee she 

will first determine whether the individual is an agent, supervisor, or manager before she proceeds any further. If she 

determines that the individual is an agent, supervisor, or 

manager, she shall terminate the informal contact. I also 

expect the Secretary to follow, as applicable, the principles 

established by the Department of Justice at 28 C.F . R. ·s 

77.9(a){l) and (b). Finallyt Newmont should understand that if 

an agent, supervisor, or manager initiates an informal contact 

with the Secretary, such person may be. an informer entitled to 

the protection of 29 C.F.R. § 2700.61. See also, 28 C.F.R. § 

77.lO(e). 

1707 
For the reasons set forth above, the Secretary's motion to 

compel is DENIED and Newmont's cross-mot~on for a protective 

order is DENIED. 

Distribution: 

Richard W. Mannin 

Administrative Law 

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson st., Suite 1110, San Francisco, CA 94105-

2999 

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington, 

DC 20037-1350 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

RWM 

1708 
FEDERAL HINE SAFETY AND HEAL'l'H REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

September 9, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

·ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEWMONT GOLD COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No . WEST 95-434-M 

A.C. No. 26-00500-05542 

Docket No. WEST 95-467-M 

A.C. No. 26-00500-55443 

South Area - Gold Quarry 

ORDER GRANTING, IN PART, 

SECRETARY'S MOTION FOR A PROTECTIVE ORDER 

on August 13, 1996, the Secretary of Labor filed a motion 

for a protective order. On August 26, 1996, Newmont Gold Company 

("Newmont") filed a motion to dismiss, or in the alternative, to 

compel and for lesser sanctions ("motion to dismiss"). Newmont 

answered the Secretary's motion for a protective order in its 

motion to dismiss. On September 6, the Secretary filed his 

response to Newmont's motion to dismiss. Both the Secretary's 

motion for a protective order and Newmont's motion to dismiss 

involve events that occurred at depositions of MSHA employees 

that Newmont scheduled for the week of July 22, 1996, in 

Vacaville, California. 

Both motions accuse the other side of acting in bad faith at 

the depositions. The Secretary alleges that counsel for Newmont 

harassed the deposition witnesses, asked personnel questions of 

these witnesses that were beyond the scope of discovery, improperly sought advisory opinions from witnesses, and improperly 

sought to exclude the Secretary's technical advisor from the 

depositions. Newmont alleges that the Secretary improperly 

terminated the Vacaville depositions at great cost to Newmont. 

Newmont alleges that the Secretary applied insupportable, all 

encompassing definitions of evidentiary privileges that prevented 

the witnesses from answering legitimate questions. 

Although each motion relies on the opposing party's conduct 

at the Vacaville depositions to support its arguments, I find 

that the two motions raise different legal issues and I conclude 

that I should issue a separate order for each motion. In the 

present order, I enter my ruling on the Secretary's motion. I 

will rule on Newmont's motion shortly. 

1709 
I. Background 

The Commission's rules of procedure provide that upon motion 

of a party or upon his own motion, "a judge may, for good cause 

shown, limit discovery to prevent undue delay or to protect a 

party or person from oppression or undue burden or expense." 29 

C.F.R. S 2700.56(c). This provision empowers the judge to 

consider a motion for a protective order and grants considerable 

discretion to the judge to regulate the course of discovery. 

See, also Fed. R. civ. P. 26(c) & 30(d}; 29 C.F . R. § 2700 . 55. 

Newmont scheduled the deposition of seven MSHA employees. It appears that the depositions were contentious from the start. 

Apparently, counsel for the Secretary terminated the depositions 

on July 25, 1996, before they were completed. The issues raised 

by the Secretary in his motion concern the conduct of Newmont's 

counsel at the depositions. Each of the Secretary's requests are 

discussed separately below. 

II. Deposition of MSHA Inspector Jaime Alvarez 

The Secretary contends that Newmont asked questions of 

Inspector Alvarez that were intended to personally humiliate and 

embarrass him and were beyond the scope of prior acts related to 

credibility. Counsel asked a number of personal questions that 

were designed to test the credibility of the witness. Before he 

asked these questions, counsel for Newmont told Mr. Alvarez that 

some of his questions "may sound somewhat personal," but advised 

him not to "take it that way." (Alvarez Depo. at 21). The 

questions that were the most objectional to the Secretary 

include: "Have you ever bounced a check?," "When was the last 

time you told what is commonly known as a lie, an untruth?," "Do 

you consume alcohol?," "Isn't it a fact that you have consumed 

illegal substances within two or three days of the conduct of an 

inspection?," and "Have you ever submitted false expense 

reports?" (Sec. Motion at 4; Alvarez Depo. at 25, 42-44). The 

Secretary contends that counsel for Newmont engaged in a series 

of such personal questions ~hat had no "legitimate purpose and 

were obviously asked in bad faith and in a manner to unreasonably 

annoy, embarrass, oppress, and humiliate the witness." (Sec. 

Motion at 5). 

A party is generally permitted to inquire into issues of 

credibility during a deposition. Such inquiries, however, should 

be limited to questions that "may reveal information affecting 

the credence afforded to a witness' trial testimony." Davidson 

Pipe Co . v. Laventhol and Horwath, 120 F. R.D. 455 , 462 (S.D.N.Y. 

1988). Thus, the questions must be designed to obtain information that has some bearing on the credibility of a witness. 

1710 
In Davidson, the court set forth five factors for analyzing 

whether deposition questions relate to the witness's credibility. 

First, the prior acts that are being examined "must 'demonstrate a 

propensity for deception . " Id. Personal habits or a history of 

getting into trouble during high school, for example, do not 

demonstrate a propensity for deception. Second, the prior acts 

must have occurred "in a context where there is a premium on 

veracity." Id. Thus, prior incidents of deception that are 

"unimportant or excusable" are not probative of veracity. Id. at 

463. Asking a witness whether he has ever lied is too broad 

because the question is not limited to situations where veracity 

is important. The third factor is the "lapse of time between the 

prior act and the .•• testimony." Id. Questions about incidents 

in the distant past should not be asked unless they are very 

probative of the witnesses truthfulness. A conviction for 

submitting false tax returns twenty years earlier would be 

probative, while the fact that the witness misstated his age on 

an employment application twenty years earlier would not. 

The forth factor is the relationship between "the subject 

matter of the prior deceptive act and that of the instant 

litigation." Id. As "the connection becomes more attenuated, so 

does the probative value of the evidence." Id. The final factor 

in "determining whether credibility-related discovery is appropriate is whether the party seeking disclosure has a foundation 

for its inquiry." Id. "This consideration is not concerned with 

the admissibility of the evidence sought; rather, it involves the 

question of whether there is a reasonable likelihood that any 

pertinent evidence will be elicited." Id. The inquiring party 

must have "a factual basis for believing that prior acts of 

deception will be revealed." Id. This factor is designed to 

prevent "fishing expeditions" into credibility issues. 

I find that many of the questions posed by counsel for 

Newmont do not pass the Davidson test. In reaching this 

conclusion, I do not imply that such questions were asked in bad 

faith. Rather, I find that many of the questions have little 

bearing on credibility. For example, whether a witness has 

consumed alcohol is not probative of truthfulness. It is not 

clear whether counsel for Newmont had a "factual basis." for 

believing that prior acts of deception would be revealed. In his 

response to the Secretary's motion, counsel for Newmont states 

that his questions "were perfectly appropriate in that Newmont 

believes that [Inspector Alvarez] lied under oath ••.• " (Newmont 

response at 26). Newmont states that the factual basis for this 

conclusion is that the inspector could not recall receiving a 

copy of a particular memorandum that lists his name as a 

recipient. Id. at 26-27. Newmont alleges that the inspector 

knew of the memorandum because he saw it and distributed it 

within the past 18 months. I find that the inspector's testimony 

does not provide a proper foundation for a belief that he lied 

under oath. Newmont cannot use this testimony as a basis to ask 

1711 
unfocused questions, such as "When was the last time you remember 

bouncing a check?," or "What's the last time you remember lying?" 

(Alvarez Oepo. at 25). In addition, it .does not appear that 

Newmont had any foundation for asking other questions, such as, 

"Isn't it a fact that you have consumed illegal substances within 

two or three days of the conduct of an inspection?" Such a 

question should not be asked without some factual basis for 

making the allegation. 

Newmont is permitted to question a witness's credibility at 

a deposition. It is not my intention to frustrate Newmont's 

ability to probe the veracity of a witness. Nevertheless, the 

questions must seek information that has some bearing on credibility. Accordingly, IT IS ORDERED that at any future depositions, the attorney conducting the deposition SHALL heed the 

factors set forth in Davidson when posing questions designed to 

inquire into the witness's credibility. 

III. Manner of Conducting Depositions 

The Secretary contends that the "Secretary's witnesses and 

counsel should be protected against rudeness, threats, and 

intimidation by Respondent's counsel that were unduly oppressive 

and burdensome during depositions." (Sec. Motion at 9). The 

Secretary argues that the "overall tone and manner" of Newmont's 

counsel "was clearly within the prohibited conduct contemplated 

by" the Commission's rules and the Federal Rules of Civil Procedure. Id. 

The Secretary contends that Newmont's counsel threatened the 

Secretary's witnesses and counsel with sanctions on 12 occasions. 

The Secretary alleges that counsel for Newmont ref erred to 

Inspector Alvarez as a "liar" in front of the witness. The 

Secretary also states that counsel for Newmont threatened to 

report MSHA personnel to the Department of Labor's Office of the 

Inspector General under certain circumstances. Finally, the 

Secretary alleges that counsel for Newmont snooped around the 

MSHA Vacaville off ices while he was there. As result, the 

Secretary asks that I directly supervise all future depositions. 

Counsel for Newmont contends that the Secretary prohibited 

his witnesses from answering legitimate deposition questions by 

improperly imposing objections on the basis of various privileges 

and states that he was simply trying to get the Secretary to 

cooperate. He alleges that the Secretary's attorneys failed to 

conduct themselves "in accordance with civility and in accordance 

with the Rules of Professional Responsibility and the applicable 

Rules of Procedure." (Newmont response at 26). 

It is quite clear from reading the transcript that the 

depositions degenerated into a test of wills very quickly. It is 

1712 
possible for an attorney to represent his or her client 

vigorously while maintaining a civil, professional, .and cordial 

manner. I did not review the transcript to determine if and when 

Newmont's counsel overstepped the bounds of professional conduct. 

I will not "baby-sit" counsel during depositio~s. 

The issues raised in this part of the Secretary's motion are 

intertwined with the issues raised in Newmont's motion to dismiss, including the terms and conditions of any future depositions. I will rule on these issues in my order concerning 

Newmont's motion to dismiss. Accordingly, IT IS OR.DERBD that 

counsel for the parties SHALL conduct themselves in a civil, 

professional and cordial manner in any future depositions and at 

the hearing in these cases. 

IV. Hypothetical Questions 

The Secretary contends that "Respondent should be prevented 

from seeking advisory opinions from MSHA regarding the consequences of future, hypothetical violations of the Mine Safety and 

Health Act." (Sec. motion at 11). The Secretary states that 

many of the questions at the depositions concerned "abstract, 

hypothetical issues of possible future MSHA violations" that do 

not relate to the dispute between the parties in these cases. 

Id. The Secretary argues that these inquiries, "involving the 

application of law to theoretical future factual scenarios, were 

outside the scope of permissible discovery and were excessive and 

burdensome." Id . 

The Secretary points to a series of questions asked of Paul 

Belanger. The Secretary asserts that Mr. Belanger "was asked a 

four part question regarding one hypothetical bead of mercury 

inside the Newmont 'boneyard' on a piece of equipment, and was 

asked to consider nine factors in evaluating his advisory 

opinion." (Id.; Belanger Depo. at 47-62). The Secretary also 

alleges that Mr. Belanger was asked a significant number of other 

questions concerned unrelated matters, such as what citations 

might be issued for not posting and barricading loose ground. 

The Secretary contends that such questions were outside the scope 

of discovery as they do not concern matters reasonably calculated 

to lead to the discovery of admissible evidence. He objects to 

questions seeking an advisory opfnion on these issues. 

It appears that the Secretary's concern is not that some 

hypothetical questions were asked, but that "the examination of 

witnesses on such abstract issues extended for hours at a time, 

which was unduly annoying and oppressive to the Secretary's 

witnesses." {Sec. motion at 13). The Secretary acknowledges 

that the subject matter for discovery is broadly construed, but 

contends that Newmont's counsel "went beyond the most liberal 

interpretation of that standard with his theoretical questions." 

1713 
Id. He contends that a "protective order restraining counsel 

from further questions of this nature is appropriate and 

necessary." Id. 

"A trial court has a duty ••• to supervise and limit 

discovery to protect parties and witnesses from annoyance and 

excessive expense." Dolgow v. Anderson, 53 F.R.D. 661, 664 

(E.D.N.Y. 1971). This discretion to limit discovery is 

"necessarily broad." Id. 

In this instance, I find that such limitations are required. 

MSHA's witnesses are not in the position to give advisory 

opinions. Presenting an MSHA employee with a broad or complicated hypothetical question is unlikely to lead to the discovery 

of admissible evidence particularly if the hypothetical is not 

closely related to the facts of the case. First, each MSHA 

witness is likely to give different answers to a series of broad 

or complicated hypothetical questions. Each answer is simply the 

opinion of one employee and does not necessarily reflect the 

Secretary's position. Second, a series of hypothetical questions 

that are not tied to the facts of the case will simply elicit an 

off-the-cuff opinion from the witness because he does not have 

the opportunity to think about the issue or talk about it with 

his supervisors. The response of the witness may not be the same 

if he faced the "hypothetical" situation during an actual MSHA 

inspection. Thus, the answer to the question is likely to be 

meaningless. Finally, a series of lengthy hypothetical questions 

that involve close questions of law and policy are overly burdensome. A single MSHA employee is simply not in a position to 

answer such questions. 

I understand why Newmont wants to probe the boundaries of 

the Secretary's interpretation of the cited standards. such 

inquiries are permissible so long as the questions are calculated 

to lead to the discovery of admissible evidence. Broad or complicated hypothetical questions that are not rooted in the facts 

at issue do not accomplish this result. 

Accordingly, IT XS ORDERED that counsel for Newmont, in any 

future depositions, SHALL refrain from asking a series of broad, 

complicated, or lengthy hypothetical questions of MSHA witnesses 

that do not relate directly to the facts at issue in these proceedings. ' 

V. Informant's Privilege 

The Secretary states that during the deposition of Inspector 

Drussel, after counsel for the Secretary asserted the informant's 

privilege, counsel for Newmont continued to ask for information 

about Newmont employees who may have discussed the matter with 

1714 
the inspector. The Secretary asserts that the questions were 

designed to reveal identifying information regarding informants. 

The deposition transcript reveals that counsel for Newmont 

asked numerous questions about who Inspector Drussel talked to in 

March 1995 when he determined that the ZADRA off ice was used as a 

lunchroom. The Secretary objected on the basis of the infor- ma~ ~'s privilege. ~ounsel tor Newmont continued to ask questions 

that, if answered, might reveal the identity of an informant, 

such as who the inspector met with or talked to during his 

inspection. 

The Commission stressed the importance of the informant's 

privilege under the Mine Act. Bright Coal Co., 6 FMSHRC 2520 

(November 1984). The Commission held that this privilege is 

applicable to the furnishing of information to government off icials concerning violations of the Mine Act. 6 FMSHRC at 2524. 

It is the name of the informant, not the contents of a statement, that is protected, unless disclosure of the contents would 

tend to reveal the identity of an informant. Asarco, 12 FMSHRC 

2548, 2554 (Deqember 1990), citing Roviaro v. United States, 353 

U.S. 53, 60 (1957). Under Commission Rule 2700.61, a judge shall 

not order a person to disclose the name of an informant who is a 

miner. A miner is defined as "any individual working in a coal 

or other mine." 30 u.s.c. § 802(g). 

Accordingly, IT IS ORDERED that counsel for Newmont, in any 

future depositions, SHALL refrain from asking Inspector Drussel 

or other MSHA officials for the names or titles of miners that 

met with or talked to MSHA officials. 

VI. Attendance at Depositions 

At the July depositions, the Secretary sought to have Paul 

Belanger present as a technical representative. Mr. Belanger was 

also scheduled to be deposed by Newmont. Newmont wanted to 

exclude Mr. Belanger until his deposition was completed. When 

the parties contacted me, I inquired as to whether Mr . Belanger's 

deposition could be held first so that his testimony could be 

taken before the testimony of the other MSHA witnesses. The 

parties informed me that it would be difficult to rearrange to 

order of depositions. On that basis, I ruled that Newmont could 

exclude Mr. Belanger until his deposition was completed. 

In the motion, the Secretary asks that Mr . Belanger be 

permitted to attend future depositions of MSHA witnesses. The 

Secretary states that he needs Mr. Belanger at the depositions to 

provide technical assistance . The Secretary also states that 

Newmont deposed Mr. Belanger in July but that Newmont did not 

release him because it stated that Mr. Belanger's deposition is 

"continuing" in nature. (Sec. motion at 17). 

1715 
The Secretary has the right to have its technical representative at the depositions of MSHA witnesses. Newmont was 

given the opportunity to depose Mr. Belanger in July. Accordingly, IT IS ORDBRBD that the Secretary SHALL be permitted to 

have Mr. Belanger present at depositions of MSHA employees as his 

technical representative . If it so chooses, Newmont may complete 

the deposition of Mr. Belanger before it deposes other MSHA 

witnesses. 

VII. Conclusion and Order 

The Secretary's motion for a protective order is GRAN'l'BD to 

the extent set forth above. Requests for relief not granted in 

this order are DENIED. 

Distribution: 

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 94105-

2999 

Henry Chajet, Esq. , PATTON BOGGS, 2550 M Street, NW, Washington, 

DC 20037-1350 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

RWM 

1716 
FEDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

September 13, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEWMONT GOLD COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 95-434-M 

A.C. No. 26-00500-05542 

Docket No. WEST 95-467-M 

A.C. No . 26-00500-55443 

South Area - Gold Quarry 

ORDER DENYING IN PART AND GRANTJ:NG 1'.N PART 

NEWMONT'S MOTION TO DISKJ:SS 

On August .26, 1996, Newmont Gold Company ("Newmont") filed a 

motion to dismiss, or in the alternative, to compel and for 

lesser sanctions ("motion to dismiss"). The Secretary of Labor 

filed his opposition to Newmont's motion to dismiss on September 

6, 1996. In the motion to dismiss, Newmont moves for an order 

"(1) dismissing this action on the grounds that the Secretary 

improperly terminated Respondent's depositions or, in the 

alternative, to require the continuation of the depositions at 

Respondent's counsel's office in Washington, D.C. at the 

Secretary's expense; (2) requiring the Secretary's witnesses to 

answer deposition questions previously objected to on the grounds 

of the informant's and deliberative process privileges; and (3) 

compelling the Secretary to disclose all attorney-client 

communications and other documents subject to the deliberative 

process and work product privileges, on the grounds that the 

Secretary has affirmatively waived those privileges." (Newmont 

Motion at 1) • 

I. Background 

on July 22, 1996, counsel for Newmont, his technical 

advisor, and Newmont's corporate safety director traveled to 

Vacaville, California to take the depositions of seven employees 

of MSHA. Newmont alleges that at the depositions its counsel was 

"confronted with a barrage of unfounded objections and improper 

instructions to the witnesses not to answer questions. " (Newmont 

Motion at 2) . Newmont states that counsel for the Secretary 

"repeatedly instructed the witness not to answer questions about 

what documents h~ had reviewed to prepare for the deposition, 

with whom (outside the Solicitor's office) the witness had shared 

the documents, and other non-privileged areas of inquiry." Id. 

171 7 
at 6. Newmont contends that the Secretary's attorneys applied 

and insupportable, all encompassing definition of pr.ivileges that 

precluded the witnesses from answering questions about anyone 

they had ever talked to about the inspection or the policies at 

issue. Newmont alleges that the two solicitors "abandoned civ il 

and courteous conduct" by interrupting Newmont's counsel. 

Finally, Newmont maintains that "in the midst of Mr. Alvarez's 

deposition ••• the Secretary's counsel inexplicably 'walked out' 

and refused to conduct any of the remaining depositions. " Id. 

Newmont also contends that the Secretary waived any privileges that it might assert in these cases concerning MSHA 

policies with respect to mercury because MSHA "voluntarily and 

knowingly disclosed to the public two internal attorney-client 

communications relating to mercury citations." Id. at 7. It 

maintains that the Secretary has waived the attorney-client, 

deliberative process, and work product priv ileges as a result of 

these disclosures. 

As a consequence of the Secretary's actions in these 

proceedings, Newmont requests that the cases be dismissed and 

seeks other alternative relief. Each of Newmont's points are 

discussed separately below. 

II. Request to Dismiss Proceedings 

Newmont recognizes that it is seeking extraordinary relief: 

the dismissal of the Secretary's case. It states, however, that 

a case may be dismissed if a plaintiff willfully or in bad faith 

thwarts legitimate discovery. As described above, Newmont states 

that the Secretary prevented it from asking legitimate questions 

of MSHA witnesses and then term.inated the depositions without 

reason. It maintains that the Secretary's "repetitions obstructive tactics" should result in sanctions and that dismissal is an 

appropriate sanction in these cases. (Newmont Motion at 9). 

Newmont contends that the Secretary continued to instruct its 

witnesses not to answer questions on the basis of the deliberative process privilege after the judge ruled that the Secretary's application of the privilege was overly broad. 

The Secretary maintains that his "decision to terminate the 

depositions, after five warnings to counsel for Respondent, does 

not involve misconduct" that warrants the dismissal of a case. 

(Sec . Opposition at 2} . He also contends that dismissal is not 

justified on the basis that he continued to assert privileges. 

The Secretary states that its assertion of privileges should not 

be "characterized as willful or deliberate disobedience of a 

court order." Id . The Secretary maintains that his only means 

of preserving the privilege was to instruct the witnesses not to 

answer privileged questions. He states that his conduct at the 

depositions was not willful or in bad faith. 

1718 
When an objection is made at a deposition, the deponent is 

ordinarily required to answer the question with the objection 

noted in the record. "A party may instruct a deponent not to 

answer only when necessary to prese.rve a privilege, to enforce a 

limitation on evidence directed by the court, or to present a 

motion under paragraph (3)." Fed. R. Civ. P. 30(d). Paragraph 

(3) of this rule provides that "[a]t any time during a deposition, on motion of a party ••. and upon a showing that the 

examination is being conducted in bad faith or in such a manner 

as unreasonably to annoy, embarrass, or oppress the deponent or 

party, the court ... may order the officer conducting the examination to cease forthwith from taking the deposition, or may 

limit the scope and manner of taking the deposition .... " 

In this case the Secretary terminated the deposition without 

permission of the court. Ordinarily, that could be an indication 

of bad faith. In this instance, I was not available because I 

was on vacation at the time of the depositions and could not be 

reached. Fed. R. Civ. P. 37 empowers Federal District Courts to 

"impose the extreme sanction of dismissal or default where there 

has been flagrant, bad faith disregard of discovery duties." 

Wanderer v. Johnson, 910 F.2d 652, 656 {9th Cir. 1990) (citation 

omitted). Under the facts of these cases, I find that the 

Secretary's actions were not flagrant and were not taken in bad 

faith, as discussed below. 

From the start, the subject depositions were contentious. 

counsel for the Secretary accused counsel for Newmont of 

harassing MSHA witnesses and counsel for Newmont accused counsel 

for the Secretary of obstructing the discovery process by raising 

unfounded evidentiary privileges. On Tuesday, July 23, the 

parties were able to reach me while I was on vacation. They 

asked me to rule on the deliberative process privilege. In my 

brief ruling, I stated that an answer to a question concerning 

"the circumstances that led to the issuance of these particular 

citations and orders ... is not protected by the deliberative 

process privilege, and that to the extent that it is, the 

Respondent's need for that information outweighs the Secretary's 

need to protect the privilege." {Drussel Depo. at 167). I held 

that discussions about the adoption of MSHA policy is· protected 

by the privilege. The Secretary stated that it disagreed with my 

ruling. Id. at 168. 1 

At the depositions that followed my oral ruling, counsel for 

the Secretary continued to object to any question that inquired 

into areas that counsel believed to be protected by the 

Subsequently, the Secretary filed a motion for 

reconsideration and the issue was briefed by the parties. I issued 

an order on August 30, 1996, addressing the deliberative process 

privilege in more detail. 

1719 
deliberative process privilege. The parties attempted to reach 

me on other occasions that week but were unsuccessf~l. The 

Secretary terminated the depositions. At the time he terminated 

the depositions, counsel for the secretary accused counsel for 

Newmont of speaking his name in contempt, conducting the depositions in an unprofessional manner, and generally conducting 

himself in a manner that was harassing, degrading, intimidating, 

and annoying . (Alvarez Depo. at 141-43). 

I reviewed those portions of the deposition transcripts that 

were sent to me by the parties. It is impossible to determine 

from a "cold" transcript whether or not counsel for Newmont overstepped the bounds of professional conduct, as alleged by the 

Secretary. On September 9, 1996, I granted, in part, the Secretary's motion for a protective order. In the order, I ruled that 

many of the questions counsel asked Mr. Alvarez to test his credibility had, in fact, little bearing on credibility. I also 

ruled that some of the hypothetical questions asked of Paul 

Belanger were too broad or complicated to provide relevant information. Finally, I ruled that counsel continued to ask questions 

about information that might reveal the identity of an informant 

after the Secretary raised an objection. 

Newmont's justification for filing the motion to dismiss is 

that the Secretary made unfounded objections and improperly 

instructed witnesses not to answer questions. Appendix A to 

Newmont's motion sets forth some of the questions that Newmont 

believes should have been answered. Counsel states that termination of the depositions was improper because he was simply 

attempting to obtain answers to legitimate discovery questions. 

My review of the deposition transcripts reveals that the Secretary did continue to make broad objections to Newmont's inquiries 

on the basis of the deliberative process privilege. These objections were based on an interpretation of this privilege that is 

broader that my oral ruling of July 24 and appears to be broader 

than my ruling on reconsideration of August 30, 1996 . 

Nevertheless, Secretary's counsel did not flagrantly or in 

bad faith ignore his discovery duties. I find that the response 

of counsel for the Secretary to the events and disputes that 

occurred at the depositions does not demonstrate a "callous 

disregard" of the responsibilities counsel owed to this tribunal 

and Newmont . National Hockey League, Inc. v. Me~ro Hockey Club, 

Inc., 427 U.S . 639, 640 (1976). As discussed in more detail 

below, I find that both parties were responsible for the failure 

of the July depositions. Accordingly, Newmont's motion to 

dismiss is DENIED. 

1720 
III. Request to Reschedule all Depositions in Washington 

If these proceedings are not dismissed, Newmont requests 

that I order that its counsel be permitted to take and complete 

the subject depositions in its offices in Washington, o.c. at the 

secretary's cost. It believes that allowing "Newmont to finish 

the unjustifiably incomplete and wrongfully terminated depositions at the Secretary's cost is a · clearly allowable remedy for 

such misconduct." (Newmont Motion at 11). 

The Secretary contends that Newmont has not "presented any 

valid reason for an order compelling the Secretary to pay 

expenses and make its witnesses available at Respondent's 

counsel's offices in Washington, D.C. " (Sec. Opposition at 6). 

He states that to qualify for such an order, the Secretary's 

"conduct must frustrate a 'fair' examination of the deponent . • . • " 

Id. The Secretary argues that such a fair examination was not 

being conducted by Newmont's counsel. "Since the Secretary's 

efforts to safeguard privileges and protect its witnesses from 

undue oppression were made in a sincere and conscientious manner 

and in the spirit of cooperating with discovery to the extent 

allowable by the Commission and Federal Rules, the facts and 

legal precedent do not support the imposition of monetary or 

other sanctions or costs on the Secretary." Id. 

In the Secretary's motion for a protective order, filed 

August 13, 1996, the Secretary requested that I personally 

supervise all remaining depositions in these proceedings. In 

this regard, the Secretary requested that the remainder of the 

depositions "be held in the Office of the Administrative Law 

Judges in Denver, Colorado during such time as the Judge may be 

present to rule on disputed matters and observe the conduct of 

the parties." (Sec. Motion for Protective Order at 18-19). The 

Secretary asked that costs of travel be borne by Newmont. Id. 

Fed. R. civ. P. 30(d) (2) provides, in part, that if the 

court finds that "an impediment, delay, or other conduct ••• has 

frustrated the fair examination of the deponent, it may impose 

upon the persons responsible an appropriate sanction, including 

the reasonable costs and attorney's fees incurred by tpe parties 

as a result thereof." 

Judges are granted considerable discretion to regulate the 

course of discovery. Discovery is designed to enable a party to 

narrow. the issues, obtain evidence for use at trial, and gain 

information about where and how such evidence can be obtained. 8 

Wright & Miller, Federal Practice and Procedure, §2001 at 15. 

In reviewing the deposition transcripts and the arguments of the 

parties, I find that neither party conducted themselves within 

the spirit of these concepts. Although I make no finding that 

either counsel acted in bad faith, I do find that counsel failed 

to conduct themselves in a manner designed to facilitate the 

1721 
narrowinq of issues and exchanqe of information. Counsel for the 

Secretary attempted to keep secret as much of the i~f ormation 

about the citations and orders as he possibly could. In particular, Counsel's application of the deliberative process privilege 

was overly broad. On the other hand, counsel for Newmont frequently pushed beyond the boundaries of legitimate discovery. Some examples are set forth in my order granting, in part, the 

Secretary's motion for a protective order, dated September 9. It 

is apparent that the deqree of cooperation and trust between 

counsel was low to nonexistent. 

I find that both parties were directly and indirectly 

responsible for the failure of the July depositions. Accordingly, Newmont's motion that I order the Secretary to make the 

subject witnesses available for further depositions at Newmont's 

counsel's offices is DENIED, as is Newmont's request for costs. 

If Newmont wishes to continue these depositions it may do so 

at the MSHA Vacaville office . In the alternative, the parties 

may, by mutual aqreement, schedule these depositions in the 

Commission's Denver courtroom. Each party would bear its own 

costs. The par~ies should check with my office to make sure that 

the courtroom is available on the desired dates. I will not 

agree to any arrangement in which I attend these depositions, but 

I will make myself available to resolve disputes. 

IV. Request to Compel Production of Withheld Documents 

Newmont contends that the Secretary "knowingly and voluntarily disseminated to the public documents which otherwise might 

be entitled to the deliberative process, attorney-client, and 

work product privileges." (Newmont motion at 14). The documents 

in question are: (1) a memorandum entitled "Alcoa ·Briefing," 

which discusses the implementation of 30 C.F.R. § 56 . 20011 and 

other standards with respect to mercury at Alcoa's Port Comfort, 

Texas, facility; and (2) a memorandum from Gretchen Lucken, Trial 

Attorney, to J. Davit McAteer, which discusses the same issues. 

Newmont contends that these memos (the "Alcoa memos") have been 

given to an number of gold mine operators in Nevada as · justification for MSHA's enforcement policies with respect to section 

56 . 20011. 2 Newmont argues that the Alcoa memos are directly 

relevant to the issues in these cases because they explain MSHA's 

enforcement policies. Newmont asserts that the Secretary has 

waived any privilege for the information contained in the Alcoa 

2 The standard provides, in part, that "[a]reas where health 

or safety hazards exist that are not immediately obvious to 

employees shall be barricaded, or warning signs shall be posted at 

all approaches." 

1722 
memos by voluntarily disclosing this information to mine 

operators. 

The Secretary contends that the Alcoa memos are irrelevant 

to these proceedings because they involve "potential action MSHA 

might take in the future, [a) hypothetical situation involving 

barely-detectable levels of mercury." (Sec. Opposition at 9). 

1.'he Secretary also stat~ .. ; ·that the disclosure of the Alcoa memos 

was not voluntary because it was released by an MSHA employee who 

had no authority to do so. The secretary believes that since the 

Alcoa memos are "irrelevant to these proceedings, even under the 

discovery standards for relevance, the court need not further 

consider the waiver issue." Id. at 11. 

The Alcoa memos set forth MSHA's "action level" for 

requiring warning signs for mercury. That is, they state that 

MSHA requires barricades or warning signs whenever mercury is 

detected above certain specified levels under various scenarios. 

I find that this information is highly relevant to these cases. 

It contains a statement of MSHA policy with regard to the interpretation of one of the standards involved in these cases. 

Whether or not .the mercury levels detected at the Newmont mine 

were "far above the 'detection level"' ·as alleged by the Secretary is not controlling. Id . at 10. The Alcoa memos set forth 

what MSHA believes to be the actions required by mine operators 

to inform its employees of the presence of a mercury hazard. 

Newmont states that several MSHA inspectors distributed the 

Alcoa memos to mine operators to explain their enforcement 

action. Newmont's claim is supported by an affidavit. Accordingly, I find that MSHA's dissemination of the memos was 

voluntary. The fact that the disclosure was not specifically 

authorized by MSHA's Arlington headquarters is irrelevant. 

The Alcoa memos appear to be protected by the attorneyclient privilege and the work product rule, and may have 

initially been protected by the deliberative process privilege. The o.c. Circuit stated: . 

Although the attorney-client privilege· is of ancient lineage and continuing importance, the confidentiality of communications 

covered by the privilege must be jealously 

guarded by the holder of the privilege least 

it be waived. The courts will grant no 

greater protection to those who assert a 

privilege than their own precautions warrant. 

We therefore agree with those courts which 

have held that the privilege is lost "even if 

the disclosure is inadvertent. " 

In re Sealed Cases, 877 F.2d 976, 980 (1989}(citation omitted). 

1723 
I agree with these principles, which also apply to the deliberative process privilege and the work product rule. I find that 

the Secretary waived these privileges, as discussed below. 

I also find that much of the information contained in the 

Alcoa memos are not covered by the deliberative process 

privilege. My order of August 30, 1996, briefly sets forth the 

boundaries of the deliberative process privilege, which I will 

not repeat here. I stressed, however, that the deliberative 

process privilege does not apply to those parts of a document 

that set forth agency policy. Such a document is not deliberative but is an expression of the agency's decision with respect 

to an issue. "[E]ven if (a] document is predecisional at the 

time it is prepared, it can lose that status if it is adopted, 

informally or informally, as the agency position on an issue or 

is used by the agency in its dealings with the public." Coastal 

states Gas Corp. v Dep't of Energy, 617 F.2d 854, 866 (O.C. Cir. 

1980) . 

Accordingly, I find that the Secretary waived any privileges 

it may have had with respect to information concerning what it 

refers to as the "action level for warning signs" for mercury 

under 30 c.F.R: S 56.20011. 3 In making this determination, I 

have relied on the arguments set forth in Newmont's motion and 

reply to the Secretary's opposition.• This waiver is not 

unlimited, however. In accordance with my authority to control 

the course of discovery, I make the following limitations. 

First, the waiver does not apply to the informant's privilege. 

Second, it does not apply to attorney-client communications 

concerning this particular litigation that occurred after the 

commencement of these cases. Third, it does not apply to 

predecisional deliberations or any information that was not 

adopted as MSHA policy. That is, those documents or parts of 

documents that are "recommendatory in nature," "reflect the 

personal opinions of the writer," or are a "draft of what will 

become a final document" need not be disclosed. Id. 

Newmont is entitled to information concerning MSHA's 

policies with respect to mercury under the cited standards. 

Thus, the Secretary shall provide Newmont with all documents 

3 I limit my finding of waiver to the standards discussed in 

the Alcoa memos. As discussed above, however, the Secretary should 

understand that a document or portion thereof containing an 

expression of MSHA's policies with respect to section 56.20014 for 

mercury is not protected by the deliberative process privilege. 

4 In these briefs, Newmont states that the Alcoa memos were 

part of the Secretary's "secret rulemaking process." By granting 

Newmont' s motion with respect to waiver, I do not signal my 

agreement with Newmont's characterization. 

1724 
previously withheld that set forth MSHA policies for citing 

operators under 30 C.F.R. S 56.20011 when mercury is detected. 

In addition, at any future depositions, the Secretary's witnesses 

shall answer questions concerning such MSHA policies and questions about how these policies were relied upon at Newmont's 

mine. The limitations set forth above with respect to documents 

apply equally to deposition questions. 

For the reasons set forth above, that part of Newmont's 

motion to dismiss that seeks to compel the Secretary to provide 

information concerning MSHA policies for mercury under section 

56.20011 on the basis that the Secretary waived certain 

privileges is GRAllTBD, to the extent described above. 

V. Conclusion and Order 

Newmont's motion to dismiss is DENIED, except as otherwise 

set forth above. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 94105-

2999 

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington, DC 20037-1350 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

RWM 

1725 
PBDERAL KINE SAPB'l'Y AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

September 16, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEWMONT GOLD COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 95-434-M 

A.C. No. 26-00500-05542 

Docket No. WEST 95-467-M 

A.C. No . 26-00500-55443 

South Area - Gold Quarry 

ORDER GRANTING SECRETARY'S MOTION FOR PROTECTIVE ORDER 

Newmont Gold Company ("Newmont") noticed the deposition of 

J. Davitt McAteer. on September 9, 1996, the Secretary filed a 

motion for a protective order to shield Mr. McAteer from deposition by Newmont. Newmont filed an opposition to the Secretary's motion. For the reasons set forth below, I grant the 

motion. 

The citations and orders that are the subject of these 

proceedings concern alleged mercury contamination at the South 

Area Gold Mine. By order dated July 10, 1996, I granted the 

Secretary's motion for a protective order that precluded Newmont 

from taking the deposition of Andrea Hricko, Deputy Assistant 

Secretary for the Department of Labor's Mine Safety and Health 

Administration ("MSHA") . 18 FMSHRC 1304·, 1307-08 (July 1996). I 

determined that Ms. Hricko should be granted "limited immunity 

from being deposed" in matters about which she had no personal 

knowledge. Id. at 1307 (citation omitted). I determined that it 

was unlikely that Ms. Hricko had "direct personal factual information" about the citations and orders in these cases. · Id. at 

1308 (citation omitted). I also found that the .information 

sought was available from other soμrces . I applied a balancing 

test and determined that "the burden placed upon Ms. Hricko and 

MSHA if a protective order is not granted is significantly 

greater that the burden placed on Newmont if a protective order 

is granted." Id . 

Mr. McAteer, Assistant Secretary of Labor for Mine Safety 

and Health and Solic itor of Labor, is a high l evel gov ernment 

official who enjoys limited immunity from testimonial obligations. The Secretary contends that Mr. McAteer has no personal 

knowledge of the facts relating to the citations at issue. He 

also argues that Mr. McAteer has no "unique knowledge regarding 

1726 
the mercury policy relating to the regulations at issue." (Sec. 

Motion at 2). The Secretary states that Margie Zalesak, Chief of 

the Health Division for Metal/Nonmetal, who will be an expert 

witness, is. available to discuss MSHA policy as it applies to 

this case. Accordingly, the Secretary contends that Newmont's 

interest in deposing Mr. McAteer does not outweigh the government's limited immunity. 

Newmont states that Mr. McAteer is aware of the existence 

and meanirig of two memoranda addressed to him (the "Alcoa memos") 

and that these memos are "the very linchpin of this litigation." 

(Newmont Opposition at 2). The Alcoa memos were discussed in my 

order of September 13, 1996, concerning Newmont's motion to 

dismiss. The Alcoa memos discuss the implementation of 30 C.F.R. 

§ 56.20011 and other standards at an Alcoa facility. In my 

order, I determined that information contained in the Alcoa memos 

is relevant to these cases. 

Newmont states that the Alcoa memos were "evaluated by him 

in determining whether to proceed in the Alcoa litigation, and 

(came] from his office to the MSHA field offices as the Secretary's policy -guidance." Id. Newmont argues that my ruling with 

respect to Ms. Hricko is not controlling because Mr. McAteer has 

"specific knowledge on the illicit mercury enforcement policy 

being used." Id. at 5. Finally, Newmont argues that the Secretary's attempts to substitute Ms. Zalesak for Mr. McAteer is 

improper. 

Although Mr. McAteer has knowledge about MSHA policies 

concerning mercury exposure at gold mines, I sincerely doubt he 

has specific knowledge about the implementation of these policies 

at Newmont's South Area Gold Mine. Any knowledge he has about 

the citations and orders in these cases came about as a result of 

this litigation or briefings by his staff. 

The fact that Mr. McAteer has specific knowledge about MSHA 

enforcement policy or that MSHA enforcement policy emanated from 

his office does overcome his limited immunity from testimony. 

Mr. McAteer has knowledge about MSHA enforcement policy with 

respect to many if not all of MSHA's safety and health standards. 

Many of these policies originated in his off ice or the office of 

his predecessors. Thus, under Newmont's logic, Mr. McAteer could 

be ordered to testify in virtual~y any case in which the mine 

operator questions the agency's enforcement policies. 

Nothing in the record or Newmont's arguments convinces me 

that Mr. McAteer has any special or unique evidence to offer in 

these cases. Anything that he knows about the citations and 

orders in these cases he obtained from others. If he issued 

written or oral instructions concerning the agency's enforcement 

policies for mercury, Newmont can obtain this information from 

local MSHA officials or from Ms. Zalesak, Chief of the Health 

1727 
Division. I agree with the Secretary that Mr. McAteer has no 

"unique knowledqe" regarding mercury policy with respect to the 

standards at issue. 

Using the balancing test set forth in my order of July 10, 

1996, I find that the burden placed upon Mr. McAteer and the 

Department of Labor if a protective order is not granted is 

significantly greater than the burden placed upon Newmont if a 

protective order is qranted. Accordingly, the Secretary's motion 

for a protective order to shield J. Davit McAteer from deposition 

by Newmont is GRAlf'l'BD. 

Richard w. Manning ' 

Administrative Law Judge 

Distribution: 

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 94105-

2999 

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington, 

DC 20037-1350 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

RWM 

1728 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

September 18, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEWMONT GOLD COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 95-434-M 

A.C. No. 26-00500-05542 

Docket No. WEST 95-467-M 

A.C. No. 26-00500-55443 

South Area - Gold Quarry 

ORDER ALLOWING LIMITED ENTRY UPON LAND 

The Secretary requested permission to enter the South Area 

Gold Quarry owned by Newmont Gold Company ("Newmont") for the 

purpose of preparing for trial in this matter. In particular, 

the Secretary seeks permission for his attorneys and "five 

technical experts/inspectors" to visually inspect the mine, take 

samples, and photograph and videotape the mine. The Secretary 

states that the "purpose of the inspection is for generalized 

familiarity with the mine and mine environment and its equipment, 

possible development of photographic or videotaped exhibits, 

inspection of the physical layout, and a determination of good 

faith compliance with the standard. " (Sec. Motion to Compel 

Discovery at 1-2). 

Newmont opposes the Secretary's request for an inspection of 

the mine. First, Newmont contends that the Secretary's request 

is "hopelessly vague" on the areas to be inspected at the mine. 

(Newmont Motion to Quash at 5). In addition, the Secretary seeks 

to bring both his attorneys and inspectors on the visit. It 

contends that the Secretary's counsel is not authorized to conduct its own enforcement inspection with MSHA inspectors. Third, 

Newmont contends that the Secretary's request to take samples is 

without foundation. It argues that the citations and ·orders were 

abated over 18 months ago and the conditions at the mine are not 

the same. In the alternative, Newmont states that if the Secretary is permitted to inspect the'mine, the inspection should be 

restricted to certain areas and the Secretary's activities should 

be limited. 

Fed. R. civ. P. 34 permits a party to enter upon land of an 

opposing party for the purpose nf inspection. The Commission's 

rules provide that a party may seek "permission to enter upon 

property for inspecting, copying, photographing, and gathering 

information." 29 C.F.R. § 2700.56(a) . such an inspection is, of 

course, subject to general limitations of sections 2700.56(b) and 

1729 
(c). In addition, because "entry upon a party's premises may 

entail greater burdens and risks than mere production of documents, a greater inquiry into the necessity for the inspection" 

is warranted. Belcher v. Bassett Furniture Industries, Inc., 588 

F.2d 904, 908 (4th Cir. 1978). 

I construe the Commission's rules to permit the type of 

inspection that the Secretary has requested. In this case, I 

find that the Secretary has presented sufficient justification 

for its inspection. I find, however, certain limitations are 

appropriate. First, the citations and orders in these cases were 

issued in discrete areas of the mine. Accordingly, the Secretary's inspection shall be limited to the "boneyard," the AARL 

room, and the ZADRA room. The Secretary's party may briefly tour 

other areas to get an idea of the configuration of the mine. 1 

I do not understand why the Secretary would like to take 

samples. Samples of the cited areas taken more than 18 months 

after the citations and orders were issued would have little or 

no relevance to the issues in these cases. Newmont represents 

that the "environmental and physical layouts of the three areas 

have been altered since the citations were issued .••. " (Newmont 

Motion to Quash at 4). The Secretary hints that the samples may 

be relevant to "a determination of good faith compliance with the 

standard." (Sec. Motion to Compel at 2). The violations alleged 

in the citations and orders in the subject cases have all been 

abated, so evidence of violations during the inspection by the 

Secretary's party would not be relevant to good faith issues. 

Nevertheless, under section 103(aj(4) of the Mine Act, authorized 

representatives of the Secretary have the authority to sample for 

health hazards to determine "whether there is compliance with the 

mandatory health or safety standards. " Accordingly, authorized 

representatives of the Secretary may take samples under the 

authority of that section. 

Newmont is entitled to have one or more representatives 

accompany the inspection party. Because the inspection by the 

Secretary's party is not a formal enforcement inspection but is 

being conducted in preparation for trial, Newmont is entitled to 

Under section 103(a), authorized representatives of the 

Secretary are permitted to inspect .any section of the mine without 

advance notice to determine whether Newmont is complying with 

MSHA's safety and health standards. The purpose of this 

inspection, however, is to allow the Secretary to prepare for 

hearing on citations and orders that have already been issued. 

While I do not have the authority to prohibit an authorized 

representative from entering other areas of the mine if he believes 

that a violation or an imminent danger is present, the Secretary's 

inspection party shall otherwise comply with the restrictions set 

forth in this order. 

1730 
(1) the results of any sampling; (2) any raw data obtained; and 

(3) an opportunity to view photographs and videotapes. The 

secretary's party shall take all necessary precautions to protect 

Newmont's trade secrets. 

All members of the Secretary's party shall conduct their 

inspection in such a manner as to minimize their disruption of 

Newmont's operation. In general, they shall not talk with 

Newmont employees without the permission of the Newmont representative. As stated in my order of September 4, 1996, authorized representatives of the Secretary have a general authority to 

discuss safety and health issues with miners without the mine 

operator's prior approval. The purpose of this special visitation, however, is to examine those areas of Newmont's mine that 

were involved in the citations and orders. Accordingly, this 

visitation cannot be used by the Secretary to interview Newmont 

employees. Newmont shall make at least one individual available 

who can describe the facilities being visited and answer basic 

questions. 

Accordingly, the Secretary's request to enter Newmont's 

South Area Gold Quarry is GRANTED as set forth above. Newmont's 

motion to quash is DENIED, except to the extent set f th in this 

order. 

Distribution: 

Richard w. Manni 

Administrative Law 

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 94105-

2999 

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington, DC 20037-1350 

Mark R. Malecki, Esq., Office of the Solicitor, U.S . Department 

of Labor, 4015 Wilson BoulevardJ Arlington, VA 22203 

RWM 

1731 
FEDERAL HINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844•5268 

September 18, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEWMONT GOLD COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 95-434-M 

A. C. No. 26-00500-05542 

Docket No . WEST 95-467-M 

A.C. No. 26-00500-55443 

south Area - Gold Quarry 

ORDER DENYING MOTION FOR RECOHSYDERATIOH 

On this date, I entered an order granting the Secretary's 

motion to enter the South Area Gold Quarry owned by Newmont Gold 

Company ("Newmont") under the authority of 29 C.F.R. S 2700.56. 

I limited the scope of the visitation, as set forth in the order. 

By telephone, Newmont asked that I reconsider my ruling. 

Newmont contends that the Secretary does not seek the visitation 

for a valid discovery purpose but merely to educate his attorneys 

and expert witnesses. It states that a party may only obtain 

discovery of "any relevant .•. matter that is admissible evidence 

or appears likely to lead to the discovery of admissible evidence." 29 C.F.R. § 2700.56(b). Newmont argues that this 

visitation will not uncover relevant matters and will not lead to 

the discovery of relevant evidence. It also contends that the 

visitation puts an undue burden on its operation. Newmont 

believes that the Secretary wants the visitation to educate his 

witnesses in preparation for trial. The Secretary disagrees with 

Newmont's characterization and believes that the visitation is 

consistent with the purposes of discovery. 

Although the Secretary cannot pinpoint any particular fact 

that may be obtained as the result of the visitation, he believes 

that the visitation may lead to the discovery of relevant evidence. I agree. It is impossible for the Secretary to set forth 

any particular fact in advance of the visitation that the Secretary's party will discover that will be relevant, admissible, or 

lead to the discovery of admissible evidence. When a party seeks 

documents, for example, the party does not know if any information in the documents will lead to the discovery of relevant 

evidence, it just believes that it may. During the visitation, 

the Secretary's industrial hygienist may see things that causes 

him to make inquiries after he leaves the property or that leads 

him consider other matters when developing his expert testimony. 

1732 
The same is true of the Secretary's medical expert. The purpose 

of discovery is to prepare for trial, so the fact that the visitation will aid the Secretary in that preparation does not mean 

that the visitation is beyond the scope of discovery. 

The Secretary's visitation party will be viewing the areas 

where the alleged violations occurred. There is no substitute 

for direct observation. During the visitation, the secretary's 

experts will be able to see the particular facilities involved 

and their observations· may lead them to consider additional facts 

or circumstances. Their observations may be relevant to the 

issues in these cases and may be offered as evidence. 

Accordingly, Newmont's motion for reconsideration of my 

order allowing the Secretary limited entry upon Newmo mine 

is DENIED. 

Distribution: 

Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department 

of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 94105-

2999 

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street; NW, Washington, 

DC 20037-1350 

Mark R. Malecki, Esq . , Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

RWM 

1733 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 17, 1996 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v . 

NATIONAL QUARRIES, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No . WEST 96-204-M 

A. C. No. 04-00204-05519 

National Quarries 

DECISION DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATI ON 

Before : Judge ·Merlin 

This case is before me upon a petition for assessment of 

civil penalties under section lOS(d} of the Federal Mine Safety 

and Health Act of 1977. The Solicitor has filed a motion to 

approve settlements for the four violations in this case . A 

redu ction in the penalties from $28,500 to $19,950 is proposed. 

The four violations in this case were issued as the result 

of a fatal accident. MSHA determined that proper procedures for 

handling a misfired hole were not followed, causing a miner to be 

fatally injured when he inadvertently drilled into a charged 

hole. 

I cannot approve the settlement motion. The parties are 

reminded that the Commission and its judges bear a heaVy responsibility in settlement cases pursuant to section llO(k) of the 

Act. 30 U. S.C. § 820 (k}; ~' S. Rep. No. 95-181, 95th Cong., 1st 

Sess. 44-45, reprinted in Senate Subcommittee on Labor, Committee 

on Human Resources, 95th Cong., 2d Sess., Legislative History of 

the Federal Mine Safety and Health Act of 1977, at 632 - 633 

(1978}. It is the judge's responsibility to determine the appropriate amount of penalty, in accordance with the six criteria set 

forth in section llO(i} of the Act. 30 u.s.c. § 820(i); Sellersburg Stone Company v. Federal Mine Safety and Health Review 

Commission, 736 F.2d 1147 {7th Cir. 1984). 

1734 
The proposed settlement remains a substantial amount. 

However, the proposed reduction of 30% also is substantial. The 

Solicitor has not offered any reasons to support the suggested 

settlement. I will not approve settlements where there is no 

justification for what I am being asked to approve . That a 

fatality is involved, compounds the error. 

This is not the first time this Solicitor has submitted an 

inadequate settlement motion. In Bennie Wayne Curtis. Emp. by 

Canyon Country Enterprises, 17 FMSHRC 1810 (October 1995), I 

disapproved a recommended settlement from this Solicitor in a 

section llO(c) case where he gave no reasons. Also, in 

Chandler's Palos Verdes Sand & Gravel, 16 FMSHRC 1926 (August 

1994), where an accident had occurred, I disapproved a proposed 

settlement unaccompanied by reasons and told the Solicitor that 

the fact that the suggested penalties remained substantial did 

not in and of itself warrant approval. In both cases the 

Solicitor subsequently submitted supplemental motions· which were 

eventually approved . I would think that by now this Solicitor 

would realize that a settlement motion without reasons is a waste 

of everyone's time. 

In light of the foregoing, it is ORDERED that the motion for 

approval of settlement be DENIED. 

It is further ORDERED that within 20 days of the date 

of this order the Solicitor submit appropriate information 

to support his settlement motion. Otherwise, this case will be 

heard as scheduled . 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail & Telecopied) 

J . Mark Ogden, Esq . , Office of. the Solicitor, U.S . Department of 

Labor, Federal Bldg., Room 3247, 300 North Los Angeles St., Los 

Angeles, CA 90012 

1735 
Robert T. Andersen, Jr., Esq., Redwine and Sherrill, 1950 Market 

Street, Riverside, CA 92501 

Douglas White, Esq. , Counsel, Trial Litigation, Office of the 

Solicitor, U. S . Department of Labor, Room 414, 4015 Wilson 

Boul·evard, Arlington, VA 22203 

/ gl 

1736