DECEMBER 1995 

CQMMISSION ORPERS 

12-26-95 General Road Trucking Corp-. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-05-95 Sec. Labor for Frank Scott v. Leeco, 

12-07-95 Hobert Vernon Gentry 

12-12-95 Thunder. Basin Coal Company 

12-13-95 Southern Minerals, et al. 

12-15-95 Oliver J. Boutet v. Ames Construction 

1.2-1.8-95 Western Mobile New Mexico, Inc. 

12-18-95 Sec. Labor for Arthur Olmstead 

Knife River Mining Co. 

ADMINISTRATIVE LAW, JUPGE ORDERS 

12-08-95 Buck Creek Coal, Inc. 

12-14-95 Intermountain Ireco, Inc. 

12-18-95 ECC International 

12-18-95 C.T. Harris Incorporated 

i 

v. 

Inc. 

YORK 95-102-M 

KENT 96-52-D 

KENT 95-472 

WEST 94-370 

WEVA 92-15-R 

WEST 95-373-DM 

CENT 94-108-M 

WEST 96-81-D 

LAKE 94-72 

WEST 95-426-M 

SE 95-451-M 

SE 95-432-M 

Pg_. 2165 

Pg. 2167 

Pg. 2177 

Pg. 2184 

Pg. 2191 

Pg. 2220 

Pg. 2222 

Pg. 2231 

Pg. 2233 

Pg. 2238 

Pg. 2241 

Pg. 2243 

DBCEHBBR 1995 

Reyiew was granted in ·the for lowing cases during the month of December: 

Secretary of Labor, MSHA v. Amax Coal Company, Docket No. LAKE 95-267 . 

(Judge Amchan, October 24, 1995) 

Billy R. Mcclanahan v. Wellmore Coal Incorporated, Docket No. VA 95-9-D. 

(Judge Barbour, October 30, 1995) 

Rock of Ages Corporation v. Secretary of Labor, MSHA, Docket Nos. YORK 94-76-RM 

through YORK 94-83-RM . (Judge Feldman, November 3, 1995) 

Secretary of Labor, MSHA v. General Road Trucking Corporation, Docket No. 

YORK 95-102-M. (Chief Judge Merlin, unpublished Default Order issued November 

20, 1995) 

Secretary of Labor, MSHA v. Consolidation Coal Co., Robert Wyatt & Danny 

Crutchfield, Docket Nos. WEVA 94-377, etc. (Judge Koutras, November 20, 1995) 

Secretary of Labor on behalf of William Kaczmarczyk v. Reading Anthracite 

Company, Docket No. PENN 95-1-D. (Judge Amchan, November 22, 1995) 

There were no cases filed in which Review was not granted. 

ii 

COMMISSION ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET N.W., 8TH FLOOR 

WASHINGTON, D.C. 20006 

December 26 , 1995 

Docket No. YORK 95-102-M 

GENERAL ROAD TRUCKING CORP. 

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

ORPER 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"). On November 20, 1995, Chief 

Administrative Law Judge Paul Merlin issued an Order of Default to General Road Trucking 

Corp. ("General Road") for failing to answer the proposal for assessment of penalty filed by the 

Secretary of Labor on June 26, 1995, or the judge's Order to Respondent to Show Cause issued 

on September 14, 1995. The judge assessed the civil penalty of$1,200 proposed by the 

Secretary. 

On December 4, 1995, the Commission received a letter from General Road's secretary 

asserting that "Mr. Anthony ... does not run this piant," "does not understand why he is 

considered in violation," and that "[t]his was his initial statement and the reason he requested a 

hearing." 

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

November 20, 1995. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's 

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

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

§ 2700.70(a}. We deem General Road's letter to be a timely filed petition for discretionary 

2165 
review, which we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September 

1988). 

On the basis of the present record, we are unable to evaluate tlie merits of General Road's 

position. In the interest of justice, we vacate the default order and remand this matter to the 

judge, who shall determine whether relief from default is warranted. See Amber Coal Co., 

11FMSHRC131 , 132-33 (February 1989). 

f-~LL/ Joyce A. Doyle, Commissioner tf, ~~ 

Arlene Holen, Commissioner 

2166 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

December 5, 1995 

TEMPORARY REINSTATEMENT 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

-On behalf of Frank Scott, 

PROCEEDING 

Docket No. KENT 96 52-D 

Complainant BARB CD 95-21 

v. 

LEECO, INCORPORATED, 

Respondent 

Mine No. 68 

ORDER GBANTING TEMPORARY REINSTATEMENT 

On November 13, 1995, the Secretary of Labor (Secretary) 

filed an application for an order requiring Leeco, Inc. (Leeco), 

to reinstate temporarily Frank Scott to the position he held 

immediately prior to June 12, 1995, or to a similar position at 

the same rate of pay and with the same or equivalent duties. The 

application was supported by the affidavit of Ronnie Brock, 

Supervisory Special Investigator of the Mine Safety and Health 

Administration (MSHA), and by a copy of the complaint of 

discrimination filed by the Secretary on behalf of Scott. 

On November 17, 1995, counsel for Leeco requested a hearing 

on the application. On November 20, 1995, Tony Oppegard entered 

his appearance as counsel for Scott. 

Pursuant to the agreement of the parties, the matter was 

heard on November 28, 1995, in Hazard, Kentucky. 

Prior to the presentation of 'testimony, I summarized the 

pleadings and reminded counsels that the issue to be decided was 

narrow -- namely, whether Scott's complaint of discrimination 

was "not frivolously brought," as that term is used in section 

105(c) (2) of the Federal Mine Safety and Health Act of 1977 

(Mine Act) (30 u.s.c. § 815 (c) (2)). 

2167 
THE TESTIMONY 

THE SECRETARY'S WITNESS 

FRANK SCOTT 

Scott is a miner with 13 years of mining experience, the 

last five of which has been as a mine electrician. Leeco's 

No. 68 Mine is an underground coal mine consisting .of two 

sections. Scott began work at the mine on March 27, 1995 . He 

quit working for Leeco on June 12, 1995, and his last day of 

actual work was June 10. 

On that date, Scott was scheduled to work his usual shift --

the afternoon shift (3:00 p.m. - 11:30 p.m.). He arrived at the 

mine around 2:30 p.m. The mine was not in production because 

the belt was being moved. Scott stated that he was advised by 

David Smith, the maintenance foreman and one of Scott's 

supervisors, that one of his tasks would be to install a "Y box." 

(A "Y box" is similar to an elec:trical junction box. Its purpose 

is to direct the current that enters the mine to the separate 

sections.) 

Scott proceeded underground and began working on the ~ox . 

The power was off. When the power was restored, Scott was asked 

to check the equipment on one of the sections to make certain it 

was operating correctly. Scott looked at his watch. It was 

approximately 4:00 p.m. The main mine fan was on. 

The equipment was functioning properly and Scott went to the 

belt head to advise Smith by telephone that the equipment was 

''ok." It was now about 4:30 p.m. He could not reach Smith, so 

he walked to where the section foreman, Rob Collett, was working 

in order to tell Collett he could not contact Smith. According 

to Scott, three or four minutes ·later Smith yelled at him over 

the speaker telephone and stated that all of the power had gone 

off at the mine but that it should be on again in 15 minutes . 

Smith then directed Scott to work on repairing a hydraul ic 

drill . Scott testified he worked on the drill but could not get 

it to operate properly. Scott spoke with Smith on the telephone 

and Smith told him to work on repairing the continuous mining 

machine. It had broken down the previous day. Scott claimed 

2168 
that Smith was anxious to have the machine repaired because 

production was supposed to be resumed at 12:01 a.m., on June 11. 

The continuous mining machine was at the face, so scoop 

Op~:t:_at:o~ .. 'l'~I1sley Hubbard transported S~?t;t there . Hubbard 

remained with Scott. The repair work required Scott to. weld a 

part on the machine. While working on the machine, Scott was 

asked by Hubbard if Scott thought they would have to work all 

night with the mine fan off. Scott stated that he could tell 

the main mine fan was not working because the smoke from the 

welding stayed in the air. In addition, he could not feel an air 

current. Scott believed it took him approximately one hour to 

complete the welding. 

Scott and Hubbard then traveled to the belthead where 

Collett and Tim Kilburn, a repairman, were working . Scott 

testified that he asked both men how much longer he and Hubbard 

would have to stay underground when the fan was off. (Scott 

claimed he did not then know the Secretary's regulations prohibit 

miners from remaining underground for more than 15 minutes when 

the fan has stopped (30 C.F.R. § 75.313(c} (1)) .) According to 

Scott, Collett and Kilburn just looked at him, hung th~ir heads, 

and said nothing. 

Scott was then told by Kilburn to move the belthead cable . 

Scott and Hubbard moved the cable and Scott stated that Hubbard 

again asked him how long they would have to work with the fan 

off. {Scott knew the fan was still off because he felt hot 

moving the cable, something that never had happened before.) 

It was around 7:00 p.m. , now. Scott and Hubbard went to the 

overcast to eat dinner. Scott could not hear the air whizzing 

through the overcast, an indication that power was not yet~ 

restored to the fan. Miners James Scalf and Randal Young also 

were eating at the overcast. They asked if they would have to . . 

work all night with the fan off, and Sco~t said he did not know. 

Scott testified that he did not leave the mine because he feared 

he would be fired . 

Scott continued to move cable after dinner. He finished the 

task around 8:30 p.m. At this point, Kilburn left the mine in 

order to get more J hooks to hang cable. Five or ten minutes 

2169 
later Scott heard the "Y box" begin to hum and air .began to whiz 

through the over cast . Kilburn returned and Scott asked him how 

the fan had been restarted. According to Scott, Kilburn stated 

t hat he had done it. 

Aroun d 9:25 p.m., Scott heard Smith and Kilburn speaking to 

one another over the telephone. Scott could not decipher what 

they were saying. A short time later, Kilburn told Scott t hat 

Smith wanted him to stay into the next shift to build a 

spillboard and to install a guard on the belthead. 

Scott testified that he could not get the spillboard built 

because a scoop that was necessary to bring in supplies was 

inoperable . Its battery was low. Scott got a battery charger 

and hooked it up to the scoop . He did not believe he could do 

any more work that night, so he left the mine around 1:00 a.m. 

The next day, June 11, was a Sunday. Scott discussed with 

his wife the fact that on June 10, he had been underground with 

the f a n off. He also stated he discussed with her two other work 

practices he believed were hazardous and that he had been 

requi red to do three or four times previously -- one was the 

practice of hanging high voltage power lines (i . e., lines 

c~rrying 12,470 volts) while the power was on and the other was 

the practice of working on belt equipment guards while the belts 

were operating. {Scott did not know the specific dates when he 

was asked previously to hang energized high voltage cables, but 

he believed it was during the months of April, May and June. In 

addition, he did not know the specific dates when he was asked to 

work on guards while the belts were running.) After talking with 

his wife, Scott stated that he resolved not to perform any more 

unsafe work. 

On June 12, Scott ·returned to the mine around 3:00 p.m. In 

the changing room he encountered Smith, who asked Scott to come 

and speak with him in a back room. Scott changed his clothes and 

met with Smith. Scott testified that Smith wanted to know why 

the spillboards had not been installed on June 10 . Scott 

explained that the scoop was "down . " Smith handed Scott a 

written work order for June 12 (Gov. Exh. 1 ) . It listed four 

jobs, included cutting part of a guard off of a belt tail piece. 

Scott maintained that Smith also orally instructed him to hang a 

high voltage line . Scott replied that he did not want to hang 

2170 
high voltage cable whil e the power was on and that he did not 

want to work on guards whi le the belts were running. · In 

addition, he asked Smith about working underground on June 10, 

while the power was off. 

According to Scott, Smith responded that if he would not do 

the work, he should leave and not come back. Scott told Smith if 

that were the case, he would quit. Scott maintained that as he 

was leaving the meeting with Smith, he encountered Kil burn . He 

gave Kilburn the written work order and he told Kilburn he had 

quit because on June 10, he had t o work underground for four 

hours while the fan was off and because he was asked to work on 

the tailpiece guard while the belt was running. He stated that 

at no point did he ask Smith to lay him off. 

Scott maintained that prior to June 12, he never had a 

discussion with Smith regarding his general job performance and 

he never was disciplined by Leeco. 

LEECO'S WITNESSES 

PAVID SMITH 

Smith has been a maintenance foreman for Leeco for the last 

three years . Smith hired Scott . Smith stated that Scott's 

primary duty was to keep equipment running at the mine. 

Smith testified that on June 10, the main work that needed 

to be done was to set up the belthead drive and tailpiece in a 

neutral entry. Smith also stated that on June 10, no specific 

work assignments were given to Scott. (Usually, Smith orally 

advised Scott about what he was to do before he went 

underground.) As best Smith could recall, Scott was supposed to 

fix the hydraulic drill. Smith stated he spoke with Scott about 

this over the mine telephone. Als?, Scott was supposed to make 

sure the equipment was running properly. 

Smith testified that on June 10, he left the mine around 

4:30 p.m. He went home and took his wife out for dinner . On his 

way back from dinner, he and his wife stopped at the mine. It 

was around 9:30 p.m. or 10:00 p.m. Smith wanted to ask if the 

drill had been fixed. There was no indication that the power had 

failed, and no one told Smith it had. After inquiring about the 

drill, Smith left the mine. 
Smith did not again speak .with Scott until June 12, when he 

asked Scott to meet with him. At the meeting, Smith stated that 

he asked Scott why he had not fixed the drill and why he had to 

be told to do things. Smith told Scott he should take more 

initiative and show a greater interest in his work. He then gave 

Scott the written work assignments -for the day (Gov. Exh. 1). 

According to Smith, Scott did not question him· about any of 

the assignments, including the work on the belt guard. Rather, 

Scott's response was to ask to be laid off. Smith told Scott he 

could not lay him off and Scott then raised the subject of the 

fan. Smith testified that Scott stated something to the effect 

that he could get unemployment compensation because the fan had 

been off. (Smith maintained that this was the first time he 

heard about the June 10 power failure and the resulting fan 

stoppage.} Aside from the fan, Scott mentioned no other 

complaints to -Smith. Nor to Smith's knowledge, did Scott 

complain to anyone else. 

Smith knew of no instances when Scott was instructed to hang 

high voltage cable while it was energized, nor did he know of any 

instances when Scott was instructed to work on guards while belts 

were running. 

According to Smith, on about ten occasions prior to 

June 12, he had spoken with Scott about his job performance and 

about the need to do better work. He kept records of some of 

these conversations in his notebooks. He agreed that Scott never 

had been given a written warning concerning his job performance 

and never had been disciplined. 

TIM KILBURN 

Kilburn is a second shift repairman at the mine. On June 

10, the second shift miners were Kilburn, Collett, Scalf, Young, 

Hubbard and Scott. Their primary job wa~ to extend the belt line 

and set up the head drive, using a battery powered scoop and the 

hydraulic drill. They also were to work on the "Y box." 

Kilburn went underground around 4:00 p.m. Kilburn . 

understood Scott's duties to be to work on the belt line and to 

repair a continuous mining machine. 

Kilburn agreed with Scott that he, Kilburn, left the mine 

2172 
during the evening of June 10. However, he denied he had 

restarted the fan, and that he told Scott he had done -s·o. In 

fact, Kilburn denied that on June 10, he ever spoke with Scott 

about the fan being off. Kilburn maintained that when he left 

the mine, it was to get materials for the spillboard Scott was 

supposed to install, not to restart the fan. According to 

Kilburn, the fan could restart itself once power was restored. 

Kilburn stated that Scott never complained to him about any 

of the working conditions at the mine. Kilburn knew of no 

instance in which Scott was asked to hang energized high voltage 

cable. In any event, cable usually was hung on the third shift, 

not on the second shift. In addition, he knew of only one 

instance prior to June 12, when Scott had worked installing a 

belt guard at a head drive. Kilburn had worked with him and the 

power was not on while the work was being done. 

In Kilburn's view, Scott did not like to work overtime. 

According to Kilburn, on June 10 , Scott told him he would quit if 

he had to work overtime that night. 

On June 12, the only thing Kilburn heard Scott ask Smith was 

whether Smith could get Scott unemployment compensation, or words 

to that effect. Following the conversation, Scott handed his 

written work order to Kilburn. Item No. 4 of the order required 

part of the guard on the belt tailpiece to be cut away. The work 

was completed by another miner after Scott quit, but only after 

the belt had been moved up and power to it had been cut off. 

These were the same circumstances in which Scott would have been 

expected to complete the task. 

Before Scott le-ft the mine on June 12, he again saw Kilburn. 

He told Kilburn that he had quit his job. He did not mention 

anything about why he quit. Rather, he told Kilburn that 8mith 

had "(obscenity] with the wrong pen~on. •1. 

THE DISCRIMINATION COMPLAINT AND THE "NOT FRIVOLOUSLY BROUGHT" 

STANDARD 

The essence of Scott's complaint, as put forward by the 

Secretary on Scott's behalf, is that prior to June 10, 1995, he 

was asked to, and he did perform work at the mine that was 

hazardous -- specifically, hanging energized high voltage power 

2173 
cables and working on mechanical equipment guards while belts 

were running. Also, on June 10, he worked underground with the 

fan off for an extended period. On June 12, he was ordered by 

Smith to perform tasks he believed to be hazardous, and he voiced 

his fears to Smith. When his fears were not addressed, he was 

forced to quit. 

The standard for the review of an application for temporary 

reinstatement requires that the Secretary's legal theory, as well 

as the Secretary's factual assertions, be not frivolous (~ J:.im 

Walter Resources. Inc. v. FMSHRC , 920 F.2d 738, 747 (11th Cir. 

1990) . It is abundantly clear that a miner has a right to 

complain about unsafe work conditions and practices as well as a 

right to refuse to work if the operator does not respond to a 

reasonable complaint (Gilbert y. FMSHRC, 866 F2d. 1433, 1444 

(D.C. Cir. 1989; ~ Secretary on behalf of Cooley y. Ottawa 

Silica Co., 6 FMSHRC 516, 519-21 (March 1984}, aff'd ,780 F.2d 

1022 (6th Cir. 1985); Price v. Monterey Coal Co., 12 FMSHRC 1505, 

1514 (August 1990 (citations omitted).) A constructive 

discharge is proven when a miner who engaged in a protected 

activity can show that an operator created or maintained 

conditions so intolerable that a reasonable miner would have felt 

compelled to resign (See. e.g., Simpson v. FMSRHC, 842 F.2d 453, 

461-63 (D.C . Cir. 1988) .) 

Although the merits of the Secretary's legal theory 

ultimately may or may not be sustained at trial, the theory 

certainly not frivolous. The parties really do not dispute 

is 

that 

the fan at the mine was off for a period of time on June 10. A 

miner who felt he or she had been made to work too long under 

those conditions reasonably could have felt compelled to complain 

about it, and to have been entitled to a meaningful response. 

Moreover, if, in fact, the Secretary can establish that Scott 

complained about hanging energized high voltage cables and 

working on the mechanical equi~ment guards while belts were 

operating -- and Scott's testimony in this regard was not 

patently unbelievable or pretextual -- such complaints could also 

have been reasonable and have required a reasonable response on 

Leeco's part . 

Further, while there is stark disagreement about whether 

Scott ever was required to engage in hazardous work practices 

involving high voltage cables and guarding and, if so, whether he 

2174 
ever lodged complaints about the practices, the resolution of the 

disagreements requires credibility determinations and factual 

findings appropriately made after a full trial of the issues, 

with testimony from all of those involved. Moreover, and as I 

have just noted, it is agreed that there is at least some factual 

basis for Scott's assertions regarding the fan,· in that it did 

cease to function on June 10, while Scott was underground. Smith 

and Scott also agreed that at some point during their 

conversation of June 12, Scott raised the matter of the fan with 

Smith. Whether, as Leeco argues, Scott's motivation was whole 

pretextual also involves credibility determinations and 

consideration of other factual evidence and is best determined 

after a complete trial of the issue. 

For these reasons, I conclude that while there is 

conflicting testimony on almost all of the fundamental issues, it 

cannot be found that the theory behind Sc~tt's discrimination 

complaint and the factual assertions associated with it are 

clearly fraudulent, clearly without merit, or clearly pretextual. 

Accordingly, I find that Scott's complaint is "not frivolously 

brought" and that Scott is entitled to temporary reinstatement. 

ORDER 

Leeco is ORDERED to reinstate Frank Scott to the position he 

held on June 12, or to a similar position at the same rate of pay 

and with the same or equivalent duties assigned to him. 

~~~f3M~v~ David F. Barbour 

Administrative Law Judge 

2175 
Distribution: 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Dept. of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215-2862 

Patrick Graham, Vice President, Safety and Health, 100 Coal 

Drive, London, KY 40741 

Tony Oppegard, Esq., Appalachian Research and Defense Fund of 

Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508 

Leona A. Power, Esq., Reece & Lang, P.S .C., London Bank & Trust 

Building, 400 South Main Street, P.O. Drawer 5087, London, KY 

40745-5087 

\mca 

2176 
PEDERAL MINE SAFETY AND HEALTH REVIEW COMMJ:SS:ION 

OFFICE OF ADMINISTRATIVE LAW JODGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 7 1995 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HOBERT VERNON GENTRY, 

Employed by Gentry Brothers 

Trucking Co., Inc., 

Respondent 

Docket No. KENT 95-472 

A.C. No. 15-17377-03506 AISZ 

West Volunteer Mine 

DEC:IS:ION 

Appearances: 

Before: 

Edward F. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

Petitioner; 

Payton F. Reynolds, Esq., Whitesburg, Kentucky for 

Respondent. 

Judge Fauver 

This is a civil penalty action under§ llO(c) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 ~ AAQ., 

charging Respondent, Hobart Vernon Gentry, aka Hobart Gentry, 

with individual liability as an agent of a corporation, Gentry 

Brothers Trucking, Co., Inc. 

Having considered the hearing evidence 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: 

Fnm:tNGS OP PACT 

l. At all relevant times Respondent was President of Gentry 

Brothers Trucking Co., Inc., a small independent contractor that 

hauled coal from the West Volunteer Mine of Andalex Resources, 

Inc., an open pit mine. The coal was sold or used in interstate 

commerce or with a substantial effect upon interstate commerce·. 

2177 
2. Respondent personally directed and supervised the Gentry 

Brothers Trucking Company and was personally aware of the 

defective brakes on a truck that was involved in a fatal accident 

on October 13, 1993. 

3. Prior to the accident, Respondent knew that the brakes on 

the truck were defective, but he failed to remove the truck from 

service pending receipt of brake parts that were on order. He 

also knew that no record was made of the defective brakes. 

4. On October 13, 1993, Ricky Thomas Corbitt, a 27 year-old 

miner with only two months experience hauling coal for the Gentry 

Brothers Trucking Company, was assigned to drive the truck. 

S. The truck was heavily loaded in the pit. As Corbitt was 

driving up a steep ramp (about 18 degree incline) to .leave the 

mine, the drive shaft broke. When the shaft broke, the engine no 

longer provided any power to the wheels. Because the brakes were 

defective, they could not hold the truck on the ramp and the 

truck rolled backward. The truck gained momentum and went out of 

control, moving backward at a fast rate. The driver attempted to 

jump from the truck but did not clear the vehicle. He was 

fatally struck by a part of the truck. The truck continued its 

runaway descent, ending in a crash landing on its side near the 

bottom of the ramp . 

DXSCUSSlON WITH F'QRTJIER PXNDXHGS. CONCLUSXONS 

Section llO(c) of the Act provides: 

Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates or fails or 

refuses to comply with any order .issued under this Act or 

any order incorporated in a decision issued under this Act 

... , any director, officer, or agent of such corporation 

who knowingly authorized, ' ordered, or carried out such 

violation, failure, or refusal shall be subject to the same 

civil penalties, fines, and imprisonment that may be imposed 

upon a person under subsections (a) and d(d). 

The Commission has interpreted the term ~knowingly" as follows: 

~'Knowingly,' as used in the Act, does not have any meaning 

of bad faith or evil purpose or .criminal intent. It~ 

meaning is rather that used in contract law, where it means 

2178 
knowing or haying reason to know. A person has reason to 

know when he has such information as would lead a person 

exercising reasonable care to acquire knowledge of the fact 

in question or to infer its existence." 

We believe this interpretation is consistent with the 

statutory language and the remedial intent of the Coal Act . 

If a person in a position to protect employee safety and 

health fails to act on the basis of information that gives 

him knowledge or reason to know of the existence of a 

violative condition, he has acted knowingly and in a manner 

contrary to the remedial nature of the statute. 

Kenny Ricbarason, 3 FMSHRC 8, 16 (1981) (emphasis added; 

footnotes and citations omitted) , affirmed Sub nom. Richardson v. 

Secretary of Labor and FHSHRC, 689 F.2d 632 (6th Cir. 1982), 

cert. denied, 461 U.S. 928 (1983). Accord RQY. Glenn, 6 FMSHRC 

1583, 1585-1587 (1984); BethEnerg;y Mines, 14 FMSHRC 1232, 1245 

(199~); Warren Steen Construction, 14 FMSHRC 1125, 1131 (1992) . 

In Kenny Rjcbarclson, the Commission held that a finding of a 

"knowing" violation does not require a showing that the 

individual "willfully" violated the Act or regulations. Rather, 

the Commission held, it need only be shown that "a person in a 

position to protect employee safety and health fail[ed] to act on 

the basis of information that [gave] him knowledge or reason to 

know of the existence of a violative condition." 3 FMSHRC at 16 . 

Respondent is charged with violations of two safety 

standards, in 30 C.F.R. §§ 77.1606(a) and 77.1605(b). 

Section 1606(a) provides: 

Mobile loading and haulage equipment shall be inspected 

by a competent person before such equipment is placed in 

operation. Equipment defects affecting safety shall be 

recorded and reported to the mine operator. 

~ection 1605 (b). provides: 

Mobile equipment shall be equipped with adequate 

brakes, and all trucks and front-end loaders shall also be 

equipped with parking brakes. 

2179 
Respondent had direct personal supervision of the operations of 

the corporation. At times he worked on the brakes of Corbitt's 

truck himself. At the relevant time he knew that the brakes were 

defective and that parts were on order. Yet he failed to see 

that the brake defects were recorded for the driver to be aware 

of the actual condition of the truck and for any safety inspector 

to see the safety history of the vehi·cle. 

He decided that it was unnecessary to record safety defects 

in the truck because he expected the driver to tell him about any 

violations or unsafe conditions. In reaching that decision he 

violated§ 77.1606(a). In light of Respondent's direct personal 

supervision of the business, and his personal knowledge of the 

brake defects and the failure to keep a record of the brake 

defects, I find that as an agent of the corporation he knowingly 

authorized, ordered, or carried out the violation of § 77 . 1606(a) 

within the meaning of §llO(c) of the Act. 

Respondent also violated§ 77.1605(b), by failing to remove 

the truck from service pending repair of the brakes. The brakes 

were highly defective and could not hold the truck on a steep 

incline. Respondent. put the driver at severe risk in failing to 

remove the truck from service. I find that Respondent knowingly 

authorized, ordered, or carried out the violation of § 77.1605(b) 

within the meaning of § llO(c) of the Act. 

The gravity associated with both violations is very high. 

The steepness of the incline made it obvious that operating a 

heavily loaded truck with defective brakes put the driver at very 

high risk. Failure to record the defective brakes withheld 

crucial information from the driver, who may have been alerted by 

such a record to seek protection afforded by the Act, e .g., to 

request his employer to assign him to another vehicle or to other 

duties pending repair of the defective brakes. It also withheld 

crucial information from any safety inspector (company, state or 

federal) that would have alerted him or her to inspect the 

vehicle immediately to see whether it was safe to operate . 

Finally, Respondent's failure to remove the truck from service 

involved very high gravity because it subjected the driver to the 

risk of a fatal injury. 

2180 
Section llO(i) of the Act provides: 

The Commission shall have authority to assess all civil 

penalties provided in this 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 attempting to achieve rapid compliance after 

notification of a violation. In proposing civil penalties 

under this Act, the Secretary may rely upon a summary review 

of the information available to him and shall not be 

required to make findings of fact concerning the above 

factors. 

Section§ llO(i) refers to an operator. There .is no 

dispositive case law on the application of § llO(i) criteria to 

an individual in a § llO(c) case. 

The corporation that employs Respondent is a small 

independent contractor engaged in hauling coal by truck. 

The gravity and negligence involved in the two violations 

were very high. The government has not alleged an unreasonable 

time in abating the violations after notice. It is presumed that 

the operator made a good faith effort to abate the violations 

promptly after notice. 

With respect to impact of the proposed penalties on 

Respondent's ability to continue in business, the record shows 

that Respondent has filed for 'both corporate bankruptcy and 

personal bankruptcy. I find that R~spondent and the corporation 

have already placed themselves in financial jeopardy unrelated to 

any civil penalty associated with these violations. The record 

reflects the existence of the two bankruptcy proceedings, but 

there is no indication of whether either the company or Mr . 

Gentry will be able to recover from their current economic 

condition and continue in business. No relationship has b~en 

shown between the proposed penalties sought by the Secretary a?l:d 

the financial conditions alleged by Mr. Gentry and the 

corporation. 

21,Bl 
I find that it would be contrary to the purposes of § llO{i) 

to reduce a penalty solely because of a pending bankruptcy 

petition. It appears that Congress was concerned. that p~nalties 

should not be so large as to affect an operator's ability to 

continue a viable business. However, this does not indicate a 

congressional concern to give special protection to a company or 

individua.l that is defaulting on its bills to creditors and is 

running the business into a state of bankruptcy without any 

demonstrated relationship between its insolvency and civil 

penalties assessed under the Act. 

Considering all the criteria of § llO(i), I find that a 

civil penalty of $2,500 is appropriate for the violation of 

30 C.F.R. § 1606(a} and a civil penalty of $5,000 is appropriate 

for the violation of 30 C.F.R. § 1605(b). 

COHCLUSIQNS OF LAW 

1.The judge has jurisdiction. 

2 . Respondent knowingly violated 30 C.F.R. §§ 77.1606(a} and 

77.160S(b} within the meaning of § llO(c) of the Act, as alleged 

in the petition. 

ORDER 

WHEREFORE IT IS ORDERED that: 

1 . The citation and order included in the petition are 

AFFIRMED. 

2. Respondent shall pay civil penalties of $7,500 within 30 

days of the date of this DECISION . 

2182 

U)~ ')-~~~ William Fauver 

Administrative Law Judge 
Distribution: 

Edward F. Fitch, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203 

(Certified Mail) 

Payton F. Reynolds, Esq., P.O. Box 160, Whitesburg, KY 41858 

(Certified Mail) 

/lt 

2183 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 2 1995 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

THUNDER BASIN COAL COMPANY, 

Respondent 

Before: Judge Arnchan 

CIVIL PENALTY PRO~EDING 

Docket No. WEST 94-370 

A.C. No. 48-00977-03525 

Black Thunder Mine 

DECJ;S:tON 

Factual Background1 

In September 1990, eight miners employed at Thunder Basin's 

surface coal mine near Wright, Wyoming, signed a form designating 

Dallas Wolf and Robert Butero as their representatives under 

section 103(£) and Part 40 of Volume 30 of the Code of Federal 

Regulations. The principal function of a miners' representative 

under these provisions is to accompany MSHA personnel during 

their inspections of an operator's worksite. Such representatives may also obtain an immediate inspection of a mine pursuant 

to section l03(g) of the Act. 

Respondent refused to recognize Wolf and Butero as miners' 

representatives and refused to post the form so designating them 

as required by 40 C.F.R. §40.4. Wolf and Butera have never been 

employees of Thunder Basin. Wolf is the principal organizer of 

the United Mine Workers of America (UMWA) in the Powder River 

Basin. Butero is a health and safety official of the UMWA. 

1 I regard the material facts in this case to be undisputed. 

The specific findings herein are based on portions of the record 

identified in my summary decision of May 11, 1994, 16 FMSHRC 

1070, 1072-74 . These findings were incorporated by reference in 

my August 24, 1994 decision on remand, 16 FMSHRC 1849. 

2184 
Respondent's Black Thunder mine is non-union and the 

company has successful·ly resisted UMWA attempts to organize its 

workforce. In 1987 the UMWA lost an election conducted pursuant 

to the National Labor Relations Act by a vote of 307 to 56. The 

company regarded the designation of Wolf and Butero as miners' 

representatives to be motivated primarily, if not solely, by 

the desire of a few of its miners to assist the UMWA in its 

organizational efforts. 

In March 1992, Thunder Basin sought and obtained an 

injunction from the United States District Court for the District 

of Wyoming prohibiting MSHA from enforcing the Part 40 designation of Wolf and Butero. However, both the United States Court 

of Appeals for the Tenth Circuit and the United States Supreme 

Court held that the District Court did ·not have jurisdiction to 

issue the injunction, Thunder Basin eoal Company v. Martin, 

969 F.2d 970, 973 (10th Cir. 1992); Thunder Basin Coal Co. v. 

Reich, 510 U.S. , 114 S.Ct . 771, 127 L.Ed.2d 29 (1994). 

In March 1993, the Commission, in Kerr-McGee Coal 

eorporation, 15 FMSHRC 352, decided that designation of the same 

union officials as miners' representatives at another non-union 

mine in the same county as the Black Thunder mine was not 

invalid, '2.e..I.: ~. A citation issued to Kerr-McGee for failure to 

post the form so designating Wolf and Butero was affirmed. 

On January 21, 1994, two days after the Supreme Court \ 

decision, and an MSHA internal communication regarding that 

decision, Thunder Basin's President, James A. Herickhoff, wrote 

the MSHA District Manager in Denver, Colorado. He requested 

that the agency issue a citation to resolve the miners' 

representative issue at the Black Thunder mine. Herickoff stated 

further that Respondent expected MSHA to specify an abatement 

time "sufficient for the parties to pursue resolution of this 

important issue before the Commission and the courts." 

MSHA inspector James A. Beam issued such a · citation (No. 

3589040) at 8:10 a .m. on February 22,· 1994. The citation 

required abatement within 15 minutes. When this period elapsed 

without compliance by Respondent, Beam issued Order No. 3589101 

pursuant to section 104(b) of the Act. The order did not require 

Respondent to withdraw miners from any area of the mine or cease 

2185 
any of its operations. Within hours Thunder Basin filed an 

application for temporary relief with the Commission and an 

application for an expedited hearing on the application. 

On March 11, 1994, MSHA's Office of Assessments informed 

Respondent of its intention to assess a $2,000 daily penalty 

for each day that the company failed to post the miners' 

representative form. After my March 25, 1994, decision denying 

temporary relief, 16 FMSHRC 1033, MSHA informed Respondent on 

March 27, 1994, that assessment of the daily penalty would 

commence that day. 

On March 28, 1994, Thunder Basin filed a petition for 

discretionary review of my March 25, 1994 decision. The 

Commission affirmed the decision on April 8, 1994, 16 FMSHRC 

671. On being apprised of the Commission's decision on April 8, 

Thunder Basin posted the miners' representative notice. 

The denouement of the litigation regarding the miners' 

representative can be summarized as follows: 

August 24, 1994, ALJ decision affirming the 

citation/order in this case, 16 FMSHRC 1849; 

I 

December 2, 1994, Court of Appeals for the 

District of Columbia affirms Review Commission 

decision in Kerr-McGee v . FMSHRC , 40 F.3d 1257 

(D.C. Cir. 1994}; 

June 7, 1995, U.S. Court of Appeals for the 

Tenth Circuit affirms Commission decision jn 

the instant case, Thunder Basin Coal Co v. 

fMSffRC, 56 F . 3d 1275 (10th Cir. 1995) 2 • 

June 26, 1995, U.S. Supreme Court declines to 

grant certiorari in Kerr-McGee, U.S. 

115 S.Ct. 2611, 132 L. Ed. 2d. 854 (1995). 

2The Commission did not grant Respondent's petition for 

review of the ALJ decision, which became a final order of the 

Commission. 

21 86 
The Secretary has proposed a penalty of $360 for the initial 

citation and a daily penalty of $2,000 for Respondent's failure 

to timely abate that citation. The Secretary's Complaint asks 

for a total penalty of $26,360. The $2,000 daily penalty is 

proposed from March 27, 1994, to April 8, 1994 . This is the 

period from which MSHA informed Respondent that it would assess a 

daily penalty to the date the miners' representative form was 

posted. 

Assessment of A Ciyil Penalty 

Section llO(b) of the Act provides that an operator who 

fails to correct a violation for which a citation has been issued 

within the period permitted for its correction ~ be assessed a 

civil penalty of not more than $5,000 for each day during which 

such failure or violation continues. The Commission is given 

authority to assess all civil penalties provided for in the Act 

in section llO(i). 

The latter section directs that the Commission shall 

consider six criteria in assessing penalties: the operator's 

history of previous violations, the size of the operator, the 

negligence of the operator, the gravity of the violation, the 

effect of the penalty on the operator's ability to stay in 

business and the good faith of the operator in achieving rapid 

compliance after being notified of the violation . The parties 

have stipulated as to four of the criteria. 

Thunder Basin had 23 violations of the Act in the two years 

preceding the posting violation. It had no prior violations of 

the cited provisions, nor any prior penalties assessed pursuant 

to section llO(b). It is a large operator and a $26,360 penalty 

would not affect its ability to stay. in business. The parties 

also stipulated that the gravity of the violation was "low," that 

it was not "significant and substantial," that no lost workdays 

could be expected and that there was no likelihood of injury due 

to the violation . 

. Thus, the only criteria at issue are the good faith of 

Respondent in achieving abatement and its negligence. As to the 

latter, Respondent did not negligently fail to post the miners' 

representative notice, it intentionally did not do so. The real 

question is Respondent's ~good faith.n 

2187 
A better way of phrasing. the issue, however, is whether 

Respondent should be assessed a substantial civil penalty for its 

insistence on exhausting all avenues of judicial review prior to 

complying with the citation. The Secretary contends that ThW'.lder 

Basin's course violates the fundamental enforcement scheme of the 

statute. As the Secretary points out, that scheme requires an 

operator to abate a citation within the time set by MSHA, even if 

it contests the citation. Further, the Secretary argues that ·an 

operator who stands upon his rights, waiting for an adjudication 

of the citation's validity, assumes the risk that if the citation 

is upheld that it will be assessed the daily penalties provided 

for in section llO(b). 

Respondent argues that the citation in this case is quite 

different than the typical MSHA citation. First, it asserts that 

the health and safety of its employees was not affected by its 

failure to post the miners' representative notice. Secondly, it 

argues that given the harm done to its rights under the National 

Labor Relations Act to fairly challenge the UMWA's organizational 

drive, it was entitled to wait until the Conunission ruled on its 

application for te~porary relief before posting the notice. 

The difficulty with Respondent's position is that the 

Commission had already spoken on the issue in this case prior 

to the issuance of instant citation and order. Respondent, at 

numerous junctures, has argued that the facts in its case were 

distinguishable from those in Kerr-McGee.- I rejected that 

argument in my March 25, 1994, decision on Respondent's 

application for temporary relief, 16 FMSHRC 1033 at 1037-38. 

I reiterate my belief that any fair reading of the 

Kerr-McGee decision establishes that the Conunission was fully 

aware that the designation of Wolf and Butero as miners' 

representatives was made in part, if not primarily, to assist 

the UMWA organizational drive at Kerr-McGee. Kerr-McGee is 

indistinguishable from the instant matter. This being the 

case, I conclude that MSHA was acting reasonably in refusing to 

extend the abatement date to allow Thunder Basin to adjudicate 

the validity of the citation issued to it on February 22, 1994, 

Martinka Coal Co, 15 FMSHRC 2452 (December 1993) . 

2i88 
Assessing the penalty in this case requires a balancing of 

two considerations. First is what I conclude was Thunder Basin's 

insistence of getting a ~second bite of the apple" in the 

adjudica.tion process despite the Commission's decision in 

Kerr-McGee. As I stated in my March 25, 1994 Order Denying 

Temporary Relief, this is analogous to requesting a stay of the 

Kerr-McGee decision, which is expressly prohibited by section 

106{c) of the Act. 

On the other hand, I agree with Respondent that this is not 

a case in which its failure to abate necessarily exposed miners 

to hazards. Indeed, I conclude that whether it did so is purely 

speculative. Only if Wolf or Butera could have apprised MSHA of 

hazards at Respondent's mine of which miners at the site would 

not have been aware would Respondent's noncompliance have posed a 

threat to its employees. Although such a possibility existed, I 

conclude that any danger arising from Respondent's failure to 

abate was very remote. 

Finally, I have given consideration to Respondent's 

argument, at pages 14-15 of its brief, that in part it was 

relying on assurances from the Commission and Tenth Circuit 

that it would not be subject to daily penalties if it chose to 

litigate rather than abate. The decisions on which it relies, 

Mid-Continent Resources. Inc., 12 FMSHRC 949 (May 1990} and the 

Tenth Circuit decision overturning the injunction, predate the 

Commission's decision in Kerr-McGee. Once the Commission decided 

Kerr-McGee, Respondent's reliance on these assurances was 

unreasonable. 

Balancing the aforementioned factors, I conclude that an 

appropriate penalty is $lOO 'per day from March 27, 1994 to 

April 8, 1994; a total penalty of $.l,300. Respondent co~ld have 

been assessed a daily penalty commencing February 22, 1994. 

However, MSHA proposed a daily penalty from March 27, and I 

conclude that the $2,000 per day proposal is muph too high 

given the low gravity of the violation. 

2189 
QRDIR 

Respondent is hereby ordered to pay to the Secretary of 

Labor the sum of $1,300 within 30 days of this decision. Upon 

such payment this case is dismissed. 

Arthur 

~~~ J. Amchan 

Administrative Law Judge 

Distribution: 

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

U.S . Department of Labor, 1999 Broadway, Suite 1600 , 

Denver, CO 80202 (Certified Mail) 

Timothy M. Biddle, Esq . , Thomas C. Means, Esq., 

Crowell & Moring, 1001 Pennsylvania Avenue, N.W., 

Washington, D.C. 20004-2595 (Certified Mail) 

Thomas F. Linn, Esq. , Thunder Basin Coal Co., 

555 17th St . , Suite 2000, Denver, CO 80202 

(Certified Mail) 

/lh 

2190 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINJSTRA TIVE LAW JUDGES 

2 SKYLINE, I 0th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH. VIRGINIA 22041 

~ \ 3 1995 

SOUTHERN MINERALS, INC. , CONTEST PROCEEDINGS 

Docket Nos . WEVA 92-15-R 

through WEVA 92 -116-R 

TRUE ENERGY COAL SALES, INC., 

and FIRE CREEK, INC. 

Contestants 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION . (MSHA) 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v . 

SOtrrHERN MINERALS I INC. , 

TRUE ENERGY COAL SALES, INC . , 

FIRE CREEK, INC., 

Respondents 

Fire Creek No. l Mine 

Mine ID No . 46-07512 

CIVIL PENALTY PROCEEDINGS 

Docket Nos . WEVA 92-786 

through WEVA 92-791 

Fire Creek No . l Mine 

PARTIAL PECISION 

Md 

HQTICE OP BEARING 

Before: 

Appearances: 

Judge Barbour 

Pamela S. Silverman, Esq . , Ronald Gurka, Esq., 

Mark Malecki, Esq . , .Office of the Solicitor, U.S . 

Dept. of Labor, Arlington, Virginia 

On behalf of the Government; 

Robert I. CUsick, Esq. , Marco M. Rajkovich, Esq . , 

Mindy G. Barfield, Esq., Jean Bird, Esq . , 

Wyatt, Tarrant & Combs, Lexington, Kentucky 

on behalf of the Contestants. 

These consolidated civil penalty and contest proceedings are 

brought under section 105 of the Federal Mine Safety and Health 

2191 
Act of 1977 (Mine Act or Act, 30 U.S.C. § 815). They involve 101 

alleged violations of mandatory safety standards for underground 

coal mines for which aggregate civil penalties of $576.681 have 

been proposed. They also involved 102 contested citations and 

orders. 

The cases arise out of a fatal explosion that occurred at 

Fire Creek, Inc . 's (Fire Creek) No. 1 Mine. Following an 

investigation of the accident, the Secretary of Labor, through 

his Mine Safety and Health Administration (MSHA), issued the 

contested citations and orders to Fire Creek, Southern Minerals, 

Inc. (Southern Minerals) and True Energy Coal Sales, Inc. (True 

Energy) (collectively, the Contestants). 

The Secretary contends that the Contestants are liable 

jointly and severally as operators of the mine. Southern 

Minerals and True Energy respond that they are not operators 

within the meaning of the Mine Act and therefore should not be 

held liable. Fire Creek does not dispute the Secretary's 

jurisdiction. 

The proceedings were bifurcated so that the jurisdictional 

status of Southern Minerals and True Energy could be resolved 

prior to addressing the individual merits of the cases. 

Following extensive discovery, the Secretary, Southern Minerals 

and True Energy, filed cross motions for summary decision. · The 

motions were denied (Southern Minerals. Inc., 17 FMSHRC 465 

(March 1995} and the matter was heard in Princeton, West 

Virginia. Comprehensive briefs were filed by the parties. 

In denying the cross motions, I first described the general 

tactual background of the proceedings and the relationships of 

the parties (17 FMSHRC 466-469), . 

I stated in part: 

The Contestants are closely held corporations 

that share some common officers and directors. 

Fire Creek was organized in 1988 by D(orsey] 

L[ee] ("Jack")Bowling, Brenda Bowling (Jack 

Bowling's wife) and David Harold. The Bowlings 

and Harold were the corporation's only 

shareholders. David Harold was president and 

2192 
director of Fire Creek and Ronda Harold (David 

Harold's wife ) was secretary/treasurer. In July 

1989, Ronald Lilly obtained 10 percent of the 

stock from Jack Bowling and Lilly became 

secretary/treasurer. [David] Harold left Fire 

Creek in October 1990, and the corporation bought 

back his shares. Also, in October 1990, 

W. ("Fred") St. John became the president of Fire 

Creek. He and Jack Bowling serv~d as directors. 

Southern Miners was organized in 1987 with 

Jack Bowling as the sole stock.holder. In October 

1989, the stock was divided between Jack Bowling, 

his son, his daughter and St. John. Jack Bowling 

served as president and [a] director, St. John 

served as the vice president and [a] director, and 

Brenda Bowling acted as secretary /t.reasurer. 

True Energy was organized in 1986 . At that 

time, Jack Bowling, his daughter and son were the 

corporation's shareholders. In October 1989, 

St . John acquired 20 percent of Jack Bowling's 

stock, leaving Jack Bowling with 60 percent . The 

other 20 percent continued to be owned by 

Bowling's daughter and son . Bowling served as 

president and director, St. John served as vice 

president and director, and Brenda Bowling served 

as secretary/treasurer. 

Southern Miners had no employees. In 

general, it held coal leases and subleases, 

contracted with others, including Fire Creek, tQ 

mine leased coal, and monitored coal production 

for royalty purposes. Southern Minerals bought 

the coal and sold it to True Energy. Fire Creek 

operated the No. l Mine pursuant to a contract 

with Southern Minerals. 

Coal from the mine was processed by an 

unrelated company pursuant to a contract with True 

Energy, and True Energy sold the processed coal. 

True Energy also provided various administrative 

and technical services to Southern Minerals' 

219 3 
contractors, including Fire Creek. 

When Harold left Fire Creek in October 1990, 

Ward Bailey, an employee of Fire Creek, . . . 

[became] mine manager. Bailey contacted MSHA 

officials after the explosion at the mine. 

Neither Bailey, nor any other Fire Creek officials 

notified Southern Minerals or True Energy. 

Southern Miners and True Energy were not 

represented at the meetings conducted by MSHA 

during the investigation of the explosion. 

Neither Southern Minerals nor True Energy received 

a citation or an order from MSHA regarding any 

aspect of the operation at the mine until seven · 

months after the explosion, when the contested 

citations [and orders] were issued. Fire Creek is 

out of' business and may not be capable of paying 

any penalties for any violations found to have 

existed (17 FMRSHRC 467-468 ) . 

Regarding the specific facts involving the relationship of 

the parties, I stated in part: 

Southern Minerals leased the mineral rights to the 

land on which the mine is located from Pocahontas Land 

Company (Pocahontas) . Southern Minerals then 

contracted with Fire Creek. Southern Minerals paid 

Fire Creek a royalty payment based on the amount of 

coal produced at the mine . Southern Minerals also lent 

funds to Fire Creek to purchase mining equipment. At 

times, Fire Creek obtained advances from Southern 

Minerals to cover operating expenses . . . In -general, 

[the) advances were secured by future coal production. 

The [a]dministrative services proved by True 

Energy to Fire Creek involved handling Fire Creek' s 

business and financial records, i.e., maintaining 

payroll and personnel files, monitoring workers' 

compensation, medical insurance and other employee 

benefits, depositing semimonthly cash receipts, 

maintaining accounts receivable files, maintaining 

accounts payable files, [and] monitoring cash flow 
The technical services provided by True Energy t o 

Fire Creek involved surveying, spad setting, map 

preparation and map certification. True Energy began 

surveying for Fire Creek in January 1990 . At that 

time, True Energy hired two spad setters to work at the 

mine . Until July 1990, Fire Creek paid True Energy for 

the technical services (17 FMSHRC 468-469 (citations 

omitted)} . 

DENIAL OF SUMMARY DECISION 

In denying the cross motions for summary decision, I 

explained my understanding of what the Act reqliires for operator 

status to vest in an entity. I noted that section 3(d) of the 

Act defines an •operator• as, •[a]ny owner, lessee, or other 

person who operates controls, or supervises a . . . mine or any 

independent contractor performing services or construction work 

at such mine" (30 U.S.C. § 802(d)). 

I stated: 

The definition clearly requires ''owners, lessees 

or other persons" to participate in and/or have 

authority over the operation, control or supervision of 

a mine . Accordingly, it is not correct to read the 

definition [so] as to make owners or lessees operators 

in and of themselves(l7 FMSHRC 471) . 

I also noted that section 2(e) of the Act provides that 

•operators" of the nation's mines have primary responsibility for 

preventing the existence of unsafe and unhealthful condi tions (30 

U.S.C. § 80l(e}) and stated that, in my view, it makes no sense 

to place liability on those who have not participated in creating 

the conditions in a mine or who hav.e no actual authority over and 

responsibility for those conditions (17 FMSHRC 471-472) . On the 

other hand, placing liability on an entity or on entities who 

have participated in creating the conditions in a mine or who 

have the authority to so participate provides a spur to 

compliance and to s~fer, more healthful working conditions (17 

FMSHR~ 472) . 

21 95 
I concluded: 

[A) purely "passive entityH would not meet the 

statutory definition of "operator" . . . provided the 

entity did not reserve to itself authority to control 

mining operations or to control the mine itself. In 

other words . . . an entity that leased mineral rights 

and contracted with another entity to mine coal would 

subject itself to Mine Act liability if it made 

decisions with respect to how coal would be mined and 

how the mine would be staffed and run, or if it had the 

actual authority to make such decisions (17 FMSHRC 

472) . 

Finally, and citing to the Commission's decision in W-P Coal 

Company (16 FMSHRC 1407 (July 1994)), I stated that the aspects 

of participation and supervision that make an entity an 

"operator" under the statute can be gauged by analyzing the 

entity's actual participation in the mine's engineering, 

financial, production, personnel and safety affairs and 

determining whether there is sufficient involvement in terms of 

actual participation and in terms of the authority to participate 

for the Secretary to proceed against the _entity (17 FMSHRC at 

4 73} • 

Turning to those indices of operator status, I concluded 

that I could not determine from the then existing record whether 

Southern Minerals and True Energy were "operators" as defined by 

the Act and that additional evidence was needed (17 FMSRHC 474-

480) . 

With regard to Southern Minerals, I looked first to its 

involvement in the engineering aspects of the mine and stated I 

could not find whether it was such as to constitute the control 

envisioned by the Act (17 FMRHRC 474-475). I further concluded I 

could not determine from the then existing record whether 

Southern Minerals used the advancing of funds to Fire Creek to 

control how mining was done at the mine or to control the mine 

itself (17 FMSHRC 475-476) . I also concluded that the record 

regarding conversations between Bowling and Harold concerning 

mining operations and production raised ~unresolved questions of 

content and context" (17 FMSHRC 477} . Finally, I found that I 

could not determine from the record whether Bowling's involvement 

in Fire Creek's personnel matters was indicative of operator 

status (l..d .• J . 

21.96 
In analyzing True Energy's status, I looked first at the 

administrative services it provided to Fire Creek. I .noted that 

it was not unusual for small to medium size operators to contract 

for administrative services, and I stated that I could not 

conclude from the existing record that Tirue -Energy was using the 

administrative services it provided to control how mining was 

carried out or how the mine was operated (17 FMSHRC 478). 

I also reviewed True Energy's involvement in engineering at 

Fire Creek. I stated that the surveying of sight lines and the 

setting of spads was not sufficient in and of itself to make True 

Energy an operator, that there must be evidence that True Energy 

controlled or intended to control mining operations (17 FMSHRC 

479). I made essentially the same finding with regard to the 

certification and preparation of mine maps (Tr. 479-480) . 

Finally, I stated: 

[A] hearing on the issue of liability will be 

necessary . The burden of proof will be on the 

Secretary. He must establish by substantial evidence 

of record that Southern Minerals and/or True Energy 

exercised actual control over the mining operations at 

~he mine, or over the mine itself, or had the power to 

exercise such control (17 FMSHRC 480). 

STIPULATIONS 

At the hearing, the parties stipulated as follows: 

1. The Fire Creek No. 1 Mine is located in 

McDowell County, West, Virginia. 

2. Operations of the ... mine are subject to 

the . Act. 

3. Pocahontas owns the mineral rights to the 

. mine. 

4. Fire Creek ... is a West Virginia 

corporation [,)incorporated on March 14, 1988. 

5. The ... Fire Creek No. l Mine was the only 

mine ever operated by Fire Creek. 

2197 
6. Fire Creek shares Post Office [B]ox 5066 in 

Princeton, West Virginia with Southern Minerals, Inc. 

7. Beginning with the dates listed, the 

shareholders, officers, and directors of Fire Creek 

... were as follows: 

Shareholders 

June 27. 1988 

David Harold (50%) 

D.L. "Jack" Bowling {25%) 

Mrs. D.L. {Brenda) Bowling 

(Wife) (25%) 

July 1. 1989 

David Harold (40%) 

Ronald Lilly (10%) 

Mrs. D.L. (Brenda) Bowling 

(Wife) (25%) 

Officers/Directors 

David Harold {Pres./Dir.) 

Rhonda Harold {wife) 

(Sec. /Treas.) 

David Harold (Pres./Dir.) 

Ronald Lilly (Sec./Treas.) 

October 201 1990 

Treasury stock {40%) 

Ronald Lilly (10%) 

(Sec./Treas./Dir.) 

D.L. ~Jack Bowling (25%) 

Mrs. D.L. (Brenda) Bowling 

{wife) (25%) 

W. Fred St. John 

(Pres. /Dir.) 

Ronald Lilly 

D.L. "Jack" Bowling 

(Dir.) 

8 . Prior to January 1, 1990, True Line, Inc. (True 

Line) and its contractors generally provided all 

engineering/surveying services and map certifications for 

Fire Creek. 

9. After January 1, 1990, John E. Caffrey, P.E., 

certified maps for the . . . mine which required engineering 

certification. 

2198 
10 . On January 31, 1991, True Line billed "True Energy 

Coal Sales, Inc . - Southern Minerals" for the preparation of 

twelve one-hundred foot maps of the . . . mine, closure maps 

of the . .. mine, and a meeting with John E. Caffrey, P.E., 

regarding the .. . mine. 

11 . Beginning with the dates listed, the shareholders, 

officers and directors of Southern Minerals were as follows: 

Shareholders Officers/Directors 

October 1. 1989 to January 1991 

D.L. •Jack" Bowling (60\) 

W. Fred St. John (20%) 

Jacqueline Bowling Karnes (10%) 

Jason Bowling (10\) 

D.L. •Jackw Bowling 

(Pres. /Dir.) 

W. Fred St. John 

(V. Pres • /Dir. ) 

Brenda Bowling 

(Sec. /Treas.) 

(10%) 

12. Beginning with dates listed, the shareholders, 

officers and directors of True Energy were as follows: 

Shareholders Officers/Directors 

October 1. 1989 to January 1991 

D.L. •Jack"Bowling (60%) 

W. Fred St . John (20%) 

Jacqueline Bowling Karnes 

(10%) 

Jason Bowling (lOt} 

(Joint Exh. 1} 

D.L. "Jack" Bowling 

(Pres. /Dir.) 

W. Fred St. John 

(V. Pres . I Dir. ) 

Brenda Bowling 

(Sec. /Treas.) 

FIRE CREEK AND THE- MINE 

Harold testified that he and Lilly opened the subject mine 

and operated it under the name of H&H Coal Co. (H&H) . Soon, they 

determined the mine could not be run successfully with the 

2199 
equipment they were using. Therefore, they went to Bowling and 

Bowling prosed that a new corporation be chartered to operate the 

mine and that new continuous mining equipment be purchased 

(Tr. I, 12-13). {Bowling testified that it was Harold, not 

himself, who suggested the mine could be operated successfully if 

up-to-date continuous mining equipment was used (Tr. II, 278} .) 

Bowling had no previous experience mining with continuous 

mining equipment. Harold, however, was thoroughly familiar with 

it. Bowling was of the opinion that Harold ~was able ... to go 

a little bit further than anybody else as far as making . . . 

[mining] efficient" (Tr. II, 306). In fact, Bowling described 

Harold as ''one of the best miners in the State of West Virginia" 

(Tr . II, 279, see also Tr. II, 303-304) . In Bowling's view, once 

the company was formed, Harold ran Fire Creek •in total• {.Id..). 

Bowling never went underground (Tr. II, 345). 

Fire Creek purchased the new equipment with a bank loan that 

was secured by the equipment as well as by Bowling's and his 

wife's personal guarantee (Tr. I, 15;. Tr. II, 278-279, 311, 316). 

The original loan was for $600, 00.0. The amount was added to over 

time as other equipment was acquired (Tr. I, 16). Eventually, 

the loan was paid in full by Fire Creek (Tr. II, 317) . In 

addition, Fire Creek assumed some of H&H's prior obligations and 

equipment (Tr. I, 20-21). 

Fire Creek contracted with Southern Minerals to mine coal 

that Southern Minerals leased (Tr. I, 22; Gov. Exh. 2). Fire 

Creek had no property interest in the coal (Tr. II, 105). 

Southern Minerals had sole authority to dispose of the coal (Tr. 

II, 105). 

From its inception in 1988 through January 1991, Fire Creek 

received over $6,000,000 in re~enue and made a profit of over 

$500,000 (Tr. II, 192) . 

However, in the months before the accident the company 

consistently lost money. Subsequent to the accident, Fire Creek 

closed the mine . St . John testified he made the decision to 

close the mine in his capacity as president of Fire Creek and 

that before he made the decision, he discussed it with Lilly and 

2200 
Bowling, in their capacities as directors of the company (Tr. II, 

239-240). Fire Creek has not mined coal since the accident (Tr. 

II, 221). St. John contended that the company has not gone back 

into mining because it is concentrating first on resolving the 

legal issues resulting from the accident (Tr. II, 239). 

According to St. John, Fire Creek has no ~unds to pay the 

penalties proposed for the violations that are alleged in these 

cases. Nor does it have assets it can liquefy to obtain the 

funds (Tr. II, 171). Bowling agreed that Fire Creek is "broke." 

He added that the company's equipment had been sold "to pay fines 

and so forth" (Tr. II, 335). 

Prior to the accident, the only entity ever cited by MSHA 

for violations at the mine was Fire Creek (Tr. I, 186-187). MSHA 

did not take the position that Southern Minerals and True Energy 

were operators uritil seven months after .the accident. 

THE SECRETARY'S POSITION REGARDING CONTESTANTS' STATUS 

AS OPERATORS 

The basis for the Secretary's theory regarding Southern 

Minerals' and True Energy's status as operators, is that through 

their associations with Fire Creek they were, in reality, part of 

a single entity that controlled the mine. Counsel for the 

Secretary stated: 

[O]ur position is that Fire Creek is part of 

an entity with several other corporations that 

operate the ... [m]ine, composing, for lack of a 

better word, an association and that, therefore, 

the officers, employees and . . . directors 0£· any 

of those corporations are agents of all of them. 

{Tr . I , 16 4 ) . 

Put another way, in the Secretary's .view, the three 

companies were a single association, and thus, a person whose 

purpose it was to mine coal. This was expressed by counsel for 

the Secretary, when he stated that Fire Creek, Southern Minerals 

and True Energy: 

together comprise a person operati~g a coal 

mine under the Act, a person being defined . . . 

under the Act as an association. And an 

2201 
association has been defined .in the law as .. . a 

group of people joining together to do something. 

[The Secretary] believe[s] that these three 

companies have operated in such a way that they 

have joined together. And their joinder is for 

the purpose of operating a coal mine. Therefore, 

they are an association. An association is within 

the definition of a person. And a person . . . is 

an operator under the Act (Tr. I, 192). 

James Bowman, who investigated the accident at the Fire 

Creek Mine for MSHA, testified that the accident investigation 

team suggested the Secretary cite True Energy and Southern Miners 

along with Fire Creek because: 

Southern Minerals and True Energy . . . and 

Fire Creek were corporations under common 

ownership. They were under the common control of 

one principal for the common good of all three. 

One could not exist without the other (Tr. I, 

214). 

He also stated that by citing all three entities, the 

Secretary ~increase[d] the likelihood that the penalties would be 

collected" (Tr. I, 215). He maintained, "the key thing is 

responsibility." For a long time, MSHA has been trying to place 

responsibility on the principals who actually have control over 

... mining activities" (Tr. I, 217-218 ) . Counsel for the 

Secretary agreed that the Secretary was trying to avoid a 

situation wherein the owner or lessee of a mine had the authority 

to control health and safety at a mine, yet escaped liability 

because of failing to exercise that authority (Tr. II, 364) . 

THE LAW 

The issue of whether the Contestants are "operators" must be 

resolved within the context of the statutory definition of that 

word (30 U.S.C. § 802(d). To put the matter in its simplest 

terms, either Southern Minerals and True Energy meet the 

definition or they do not . If one or both do, one or both were 

properly cited. If one or both do not, these proceedings must be 

dismissed with respect to the party or parties outside the scope 

of the Act. While the Secretary has emphasized his wide 

2202 
enforcement discretion , and while it is true such discretion 

exists (Brocky. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 

538 (D.C. Cir. 1986), it comes into play only in regard to 

statutory operators. Obviously, the Secretary holds no writ to 

proceed against those who are not so defined. 

As I have noted previously, analysis of the Contestants' 

status begins with the words of the statutory definition and the 

assumption that the Act's drafters carefully chose the words to 

mean what they say (Order, 17 FMSHRC at 471; see also Berwind 

Natural Resources. Co:r:p., 17 FMSHRC 684, 703 (April 1995} (order 

in pa~t granting and denying motion for summary decision)}. The 

Act defines an "'operator" as "[a)ny owner, lessee, or other 

person who operates, controls or supervises a coal or other mine 

or any independent contractor performing services or construction 

work at such mine" (30 U.S.C. § 802(d)) . The clause, "'who 

operates, controls, or supervises a coal or other min~," 

describes and qualifies each noun in the preceding phrase "any 

owner, lessee, or other person." Thus, the definition requires 

"'owners, lessees or other person[s]" to participate in and/or 

have authority over the operation, control or supervision of a 

mine (TMElliot Coal Mining Company. Inc. y. Director. Office 

gf warkers Compensation, 17 F. 3d 616, 629-630 (3d Cir. 1994)) . 

The purpose of the statutory definition is to place 

responsibility for health and safety upon those entities who 

create the conditions at the mine or who have actual authority 

over those conditions on the theory that such responsibility will 

further compliance. Control may be either direct or indirect, 

but it must be actual. In other words, an operator must "call 

the shots" at a mine regarding its day-to-day operation or have 

the authority to do so (~ Berwind, 17 FMSHR.C at 704 (citing 

Hational Ind.ustrial Sand Ass'n y. Marshall, 601 F. 23d 698, 701 

(3d Cir. 1979) (~Designation . .. as operators 

. . . regyires substantial participation in the running of the 

~,, (emphasis in original))) . 

For these reasons I concluded previously - - and state again 

here -- that in order to establish an entity as an "operator" 

subject to the Act, the Secretary must prove that the entity, 

either directly or indirectly, substantially participated in the 

operation, control or supervision of the day-to-day operations of 

the mine, or had the authority to do so {Berwind, 17 FMSRHC at 

705). 

220 3 
Further, and as I have noted, because the forms of 

participation and authority vary from entity to entity, the 

question of whether an entity meets the statutory definition of 

"operator" must be resolved on a case-by-case basis (17 FMSHRC 

473) . 

ii::.£ provides guidance. There, the Commission looked to 

specific indicia of operator status ·-- characteristics such as an 

entity's involvement in a mine's engineering, financial, 

production, personnel and safety affairs. Because in Ji:.£ the 

Commission concluded a lessee's substantial and •considerablew 

involvement in the operation of the mine warranted the Secretary 

proceeding against it (16 FMSRHC at 1411, n.5), I read the 

decision as echoing the court's requirement that a cited entity 

must exhibit "substantial participation in the running of the 

mine" (National Industrial Sand, 601 F.2a· at 701). Thus, in my 

opinion, the Commission's decision implicitly recognizes that an 

entity's involvement in the day-to-day operation of a mine can be 

so infrequent· or minimal, i.e., so insubstantial, inconsiderable 

or removed from actual mining, that operator status does not vest 

(17 FMSHRC 473; aerwind, 17 FMSHRC 705}. 

This approach to determining jurisdictional status is in 

harmony with the way· the coal industry frequently operates. In 

the East especially, where contract mining is common, leased coal 

reserves of ten are mined not by lessees but by entities with whom 

lessees contract and the relationships between lessees and 

contractors often differ. By looking to the various aspects of 

the relationships to determine whether there is substantial 

control over the day-to-day operation of the subject mines, or 

whether there is the authority to exercise such control, the 

differences are accounted for and compliance is fostered . 

Clearly those who control day-to-day mining and/or who have 

the authority to do so are those who can and do control the 

conditions and practices that ensure compliance with the Act and 

the mandatory safety and health regulations promulgated pursuant 

to it. It is they who are and who should be held responsible 

when the conditions and practices fall short. 

I do not subscribe to the Secretary's assertion that because 

an entity that mines the coal is •owned, operated, controlled, 

2204 
and supervised to one degree or another" by other entities, each 

of those entities can be held jointly and severally liable for 

violations at the mine (Sec. Br. 32). The issue is not whether 

the entity doing the mining is owned, operated, controlled, and 

supervised '~to one degree or another" by others, but the degree 

to which it is controlled and supervised. As I have stated, in 

my view the Commission has recognized that an entity's 

involvement in the day-to-day operation of a mine may be so 

infrequent, minimal or removed, i.e., so insubstantial, 

inconsiderable or remote from actual mining, that operator status 

does not vest. 

Moreover, in the past MSHA appears to have adopted this 

position. John Tisdale, the manager of MSHA's accident 

investigation program, and a person with a long and dis~inguished 

career in the mining industry, testified that when he worked for 

two large corporate coal operators in the 1980s, the corporations 

frequently contracted with smaller companies to mine the 

corporations' coal reserves. The larger corporations provided 

various engineering, technical and administrative services to the 

smaller contract operators, services that MSHA today would 

apparently argue afforded the corporations the "degree" of 

control it asserts is indicative of operator status, yet Tisdale 

knew of no instance in which the corporations were cited for the 

violations of the on-site operators (Tr. I, 272-277; Tr. II, 46-

49) • 

Nor do I subscribe to the Secretary's arguments that the 

Contestan~s are operators because together with Fire Creek they 

functioned as a unitary entity performing all of the aspects of 

mining; from the development of the mine to extraction and 

stockpiling of the coal. Parts of the industry have functioned 

in a multifaceted nature for years, and, as Tisdale's tes~imony 

makes clear, in the past, the Secretary has chosen to cite, the 

production operators rather than to cite .those who provided them 

services (.WU:. Tr. I, 272-277; Tr. II, •6-49). 

While this past practice does not stop the Secretary from 

changing his view and proceeding against the Contes~ants --

provided they are operators within the meaning of the Act (17 

FMSRHC 480-481) -- it certainly raises questions abou~ both the 

wisdom and the validity of a ~unitary entity" approach to 

enforcement. Moreover, as I note below, the Secretary's unitary 

theory may fly in the face of the right ' of separate corporate 

2205 
entities performing separate tasks to be regarded in law as 

separate persons and if adopted may extend jurisdiction without a 

logical limit (.ae.e. infra 25-26) . 

Therefore, I reiterate that the issue before me is whether 

the Secretary has established that each of the Contestants either 

directly or indirectly, substantially participated in the 

operation, control or supervision of the day-to-day operations of 

Fire Creek No. l Mine, or had the authority to do so. 

THE CQNTESTAN'f S AS OPERATORS 

THE STATUS OF FIRE CREEK 

The parties agree that the actual day-to-day operation of 

the mine was substantially controlled and supervised by Fire 

Creek and that at all times relevant to these proceedings, Fire 

Creek was an operator within the meaning of the Act. 

THE STATUS OF SOUTHERN MINERALS 

INDICES OF OPE&ATOR STATUS 

INVOLVEMENT IN EMPLOYMENT 

Harold, who had run the mine for Fire Creek, testified that 

he worked daily at the mine, both underground and on the surface 

(Tr. I, 27-28). According to Harold, he did the actual hiring 

and firing and no other person had that authority, including 

Bowling (Tr. 28, 31). However, he agreed that there were times 

when he discussed with Bowling the hiring of employees: 

We were always looking for good people. [A]ny time 

that I could find out about good people from . . . 

Bowli~g or anybody else . . . we would talk about it 

. . .. ·And if he knew somebody, then I would talk to 

them (Tr. I, 28). 

In addition, Harold spoke with others in the mining 

community -- people unrelated to Fire Creek -- when seeking 

employee recommendations. 

Harold stated that he did not always hire miners of whom 

Bowling approved, and Bowling never told him he could not employ 
a person he wanted to hire (Tr. I, 126). Also, Bowling never 

told Harold to fire a person (Tr. I, 126). However, if there was 

an employee that "wasn't doing [his or her] job and ... was 

costing production, " Harold would discuss the situation with 

Bowling because Bowling was "part owner of the [mine]" (Tr. I, 

144} and Bowling always had "some" input in the discussion 

(Tr. I, 30). 

Bowling agreed that it was Harold who did the hiring. 

Bowling stated that from time to time Harold would call and ask 

him if he knew of good people whom Harold could hire. Bowling 

also stated that he and Harold would discuss things Harold had 

done at the mine that could lead to labor-management difficulties 

(Tr. II, 280). Bowling described their discussions as "the same 

that I would have with a neighboring operator" (Tr. II, 285). 

After Harold left the mine, Bowling stated that he and 

St. John hired Ward Bailey to replace Harold (Tr. II, 280). 

St. John stated that the decision to hire Bailey and CUrtis 

Stillwell, who acted as the mine superintendent after January 

1991, was made by himself, Ron Lilly and Bowling (Tr. II, 226-

227.) George Bowman, a special investigator for MSHA, testified 

that during an investigation by the United States attorney 

following the explosion, Bailey was interviewed and stated that 

Bowling alone hired him (Tr. I, 171-172). (Bailey was not called 

as a witness, and thus, his version of the conversation and his 

credibility could not be gauged.) James Bowman, another MSHA 

special investigator, testified that when he went to the mine 

following the explosion, CUrtis Stillwell stated that he had been 

hired by Bowling (Tr. I, 206). (Stillwell too was not called as 

a witness.) 

Finally, Harold maintained that while he did not advise 

Bowling on day-to-day personnel problems, he discussed •serious 

matters" with him -- matters such as the need to hire more 

miners. He did so because •Bowling owned a portion of the 

[mine]- (Tr. I, 34-35). 

Given this testimony and the record evidence, I find that 

Harold was responsible for the hiring and firing of the rank and 

file miners. Harold stated as much, and I fully credit Harold's 

testimony to this effect (Tr. I, 28). I also credit his 

testimony that he did not always hire miners of whom Bowling 

approved, and that Bowling never stated that he could not hire 

2207 
such miners (Tr. 126). There is no credible evidence to 

contradict Harold's assertions in this regard. 

However, there is credible evidence establishing that 

although Bowling did not make the day-to-day hiring and firing 

decisions regarding rank and file miners, he had, as Harold put 

it, input into "serious" personnel policy matters, such as the 

need to hire more miners (Tr. I, 34) n I conclude that Bowling 

not only discussed such matters with Harold, but that he had a 

say in the ultimate decision. Bowling, as president of Southern 

Minerals, the company whose coal was being mined, had an obvious 

interest in maximizing production. It is inconceivable to me 

that Harold would have discussed the need for more miners with 

Bowling if he did not need Bowling's approval to hire them. In 

other words, while Bowling had no demonstrable veto over who was 

hired, he fundamentally contributed to the decisions to hire. To 

have this kind of input into the determination of the number of 

miners who worked at the mine was to exercise control over the 

day-to-day operation of the mine. 

Harold stated he discussed employment .matters with Bowling 

because Bowling "owned a portion of the [mine] (Tr. I, 34-35) ," 

but there is no distinction apparent when Bowling acted on behalf 

of Fire Creek and when he acted on behalf of Southern Minerals. 

He wore ·both hats. This overlapping of responsibilities 

regarding rank and file miners leads me to conclude that when 

Bowling became involved in such personnel matters, he did so on 

behalf of both Fire Creek and Southern Minerals. 

In addition, the testimony establishes that Bowling was 

actively and substantially involved in hiring superintendents 

Bailey and Stillwell. Harold testified that he and Bowling hired 

Bailey to replace Harold (Tr. II, 285), and St. John stated that 

Bowling was instrumental -in the ·hiring of Stillwell (Tr. II, 

248) . In addition to being involved in the hiring of these 

crucial members of the mine's day-to-day management, it is clear 

that Bowling controlled their tenure at the mine. Bowling 

himself testified that he could terminate the superintendent's 

employment if the superintendent did not operate the mine like 

Bowling wanted (Tr. II, 357). 

Just as Bowling exercised his authority without 

distinguishing whether he acted for Fire Creek or Southern 

Minerals regarding the number of rank and file miners hired, so 

2208 
too did he fail to distinguish for whom he was or would act when 

he hired or fired the mine's superintendents. This lack of a 

clear distinction between the times Bowling was wearing his Fire 

Creek hat and his Southern Minerals hat when he acted on mine 

personnel matters leads me to conclude that Bowling had the 

authority to act and did act on behalf of both. 

I find, therefore, that the decisions regarding whether to 

hire more miners and the decisions regarding the hiring or firing 

of the mine's superintendents, substantially involved Bowling, 

and through Bowling, Southern Minerals, in the day-to-day 

operation of the mine . 

INVOLVEMENT IN PRODUCTION AND ENGINEERING 

I conclude as well that Southern Minerals, through Bowling, 

was substantially involved and had the authority to be 

substantially involved in day-to-day production and engineering 

at the mine. 

I c~edit Harold's testimony that Bowling called every day 

for the mine's production figures and that when production was 

low, he and .Bowling discuss the reasons why (Tr. I, 36-37). It 

is clear from Harold's testimony that Bowling took a very active 

interest in production and that this was not a "hands off" 

situation. 

It is equally clear to me that Harold and Bowling acted as a 

''team'' when the mining process encountered difficulties that 

hindered production. Harold was specific about discussing such 

difficulties with Bowling and about getting advice from Bowling 

concerning how to overcome the difficulties (Tr. I, 38; 49; 134-

136), and I discount Harold's .testimony that Bowling never 

ordered th~t mining proceed in a c~rtain manner or directiQn (Tr. 

I, 49). George Bowman testified that Harold told him during. the 

criminal investigation that Bowling had specifically instructed 

him to mine certain bleeder blocks (Tr. I, 173). Harold did not 

deny this. Rather, he could "not recall" the dis·cussion (Tr. I, 

49). 

I find that from the beginning Bowling was involved 

substantially with production at the mine and that Bowling's 

corporate interest and self interest in maintaining ongoing 

production kept him substantially involved, both in the manner in 

2209 
which coal was produced and in the ongoing mining process. 

Harold credibly stated that Bowling participated in the 

initial decision to mine with a continuous mining machine (Tr. 

137-138). Harold also testified that Bowling's involvement in 

production continued once mining commenced. Harold stated that 

if he had a production problem, he discussed it with Bowling. 

For example, when the mine was shut down as a result of a state 

or federal inspection, he discussed it with Bowling, and he 

stated that he did so probably more · than once (Tr. I, 42-43). 

When he was asked if Bowling ever pressured him in any way with 

regard to the level of production, he responded: 

He called me every day to find out what production 

was and how much coal I was going to get that day. And 

he'd want to know if I was going to get a certain 

amount of coal or if I was not. And I don't know if 

you could take that I'd say it's pressure. 

* * * * 

I consider it a pressure, yes, ma'am 

(Tr. I, 44) . 

As important, and as Bowling himself testified, Bowling had 

actual authority substantially to control some of the most 

significant things that affected production, engineering and 

safety at the mine. Bowling stated that if he called the 

superintendent and inquired about mine ventilation, preshif t 

examinations and the in-mine smoking program, he would expect 

answers, and expect that problems would be corrected. 

Q. [Y]ou indicated you could have called [the 

superintendent] and inqui~ed about those areas, 

ventilation fan, preshift, smoking program ... and 

you would have required [the superintendent] to tell 

you about those conditions; is that correct? 

* * * * 

A. Yes, sir. If I asked him, I would expect an 

answer. 

Q. And if he had told you that things weren't 

2210 
going too good [sic] or if you had information f.rom 

another reliable source that led you to believe things 

were not as good as they could be in those areas, you 

could have required [the superintendent] to fix those 

problems? 

A. Yes, sir. I'd have him investigate and see 

what the problem was immediately (Tr. II, 356-357}. 

Bowling testified that if there was a condition on a 

ventilation map that he did not like, he had the authority to 

have the condition changed (Tr. II, 358-359). 

I recognize th~t both Harold and Bowling testified that 

Bowling's authority in these cases derived from his position as a 

stockholder of Fire Creek (~ Tr. I, 101-102; Tr. II, 359). I 

am sensitive to the fact that law and public policy favor the 

limitation of business risks through incorporation and that 

corporations are treated at law as individual entities even if 

they share the same or many of the same directors, officers and 

stockholders. However, I also recognize that their status as 

separate legal entities may be considered a fiction and be 

disregarded when those acting for the corporations do so in .such 

a fashion that their corporate individuality no longer exists. 

When that happens, treating an entity as separate may permit it 

to evade its legal obligations. In order words, it can be unjust 

to recognize an entity as separate when those who act for it do 

not (~ Las Palmas Association v. Las Palmas Center Associates 

(1991, 2nd Dist.) 235 Cal. App. 1220). 

Here, with respect to the aspects of production, engineering 

and safety, that I have discussed, it is impossible to 

distinguish the actions of Bowling on behalf of Southern Minerals 

from those of Bowling on bebalf of Fire Creek. The corporate 

identities have merged to the exteht that I find when Bowling 

acted concerning these aspects of mining, he acted both for Fire 

Creek and Southern Minerals and therefore, that Southern Minerals 

substantially participated in the day-to-day operations of the 

mine in these areas. 

Evidence was also offered by the Secretary concerning the 

relationship of Southern Minerals and Fire Creek with regard to 

mining projections, mapping and permits. However, the Secretary 

has not established that Southern Minerals' involvement in these 

2211 
aspects of mining was indicative of its substantial participation 

in the day-to-day operation of the mine. Rather, the record 

shows that Southern Minerals was involved to ensure its own 

individual interests in making certain only its leased coal was 

mined and was mined without waste. 

INVOLVEMENT IN FINANCE 

There are several aspects of Fire Creek's finances . in which 

Southern Minerals played a part that substantially impacted the 

day-to-day operation of the mine. 

Harold testified that he regularly discussed with Bowling 

the cost of the supplies used at the mine, as well as any ~out of 

the ordinary" expenses that arose (Tr. I, 142, see also Tr. I, 

48). Bowling did not deny the discussions and I conclude they 

occurred. 

In addition, it is clear that Southern Minerals frequently 

advanced money to Fire Creek. The advances were made against 

production {Tr. I, 77; 114). The money was used to purchase 

needed supplies and equipment and to pay off past due debts (Tr. 

I, 113-115; Tr. II, 104-105). According ·to Harold, the 

determination whether Fire Creek had enough income to cover its 

expenses was made by Harold, Bowling and, at times, St. John (Tr. 

I, 116). St. John agreed that when he was president of Fire 

Creek he knew when the company would experience a fiscal short 

fall and he would arrange with Southern Minerals for an advance 

(Tr. II, 165}. In deciding whether and when to arrange for an 

advance, St. John essentially testified that he consulted himself 

(Tr. II, 165). Further, Harold testified that he was not always 

aware when money was advanced (Tr. I, 119). 

Once again, the evidence reveals the lack of any clear 

separation of functions between 'Fire Creek and Southern Minerals 

in these areas among the parties. It is impossible to 

distinguish where Bowling's and St. John's financial authority as 

representatives of Fire Creek ended and their authority as 

representatives of Southern Minerals began, and vice versa. St. 

John's testimony that as president of Fire Creek he consulted 

himself as vice president and dir~ctor of Southern Minerals when 

arranging for advances to Fire Creek from Southern Minerals, is 

typical of the overlap: 

2212 
Q. Who is responsible for making the 

determination to advance funds to Fire Creek . . . ? 

A. I made those determinations. 

Q. And in what capacity did you make that 

determination? 

A. As president of Fire Creek, I would have 

acknowledged the shortage of money and would have made 

arrangements with Southern Minerals to make those 

advances. 

* * * * 

Q. [W)ith whom in Southern Minerals did you speak 

regarding that? 

A. Me (Tr. II, 165). 

Thus, I conclude that Bowling and St . John acted as though 

the entities were one when they arranged for the advances. Their 

testimony that advances against production were a normal way of 

doing business between a lessee and its contract operator was 

entirely credible (Tr. I, 136-137; Tr. II, 284), and I do not 

believe that the extension of money in and of itself indicates 

the entity advancing the funds necessarily is acting as a 

statutory operator. However, without a careful separation of 

form and function -- a separation that is not in evidence here 

the entity advancing the money can only be seen as playing a 

significant part in the day-to-day operation of the on-site 

mining enterprise. 

In addition, Bowling kepb an eye on the cost of supplies and 

equipment to the equal benefit of both entitias. Obviously, dayto-day operations at the mine could not have proceeded without 

the supplies and equipment. Bowling helped to make certain they 

were present. Bowling again acted as though Fire Creek and 

Southern Minerals were one. 

THE STATUS OF TRUE ENERGY 

St. John described True Energy and Southern Minerals as 

"sister corporations" in that as of October 1, 1989, they shared 

identical ownership (Tr. II, 100-101; a.e..e. Joint Exh. (stips. 11-

2213 
12)). True Energy's business was to buy coal from Southern 

Minerals and have it processed and resold. The coal was mined by 

Southern Mineral's contract operators, including Fire Creek {Tr. 

II, 101). The coal was processed at a preparation plant owned 

and operated by an unrelated corporation (Tr. II, 102). True 

Energy also provided administrative services Southern Minerals 

(Tr. II, 100-101). 

The fact that True Energy and Southern Minerals shared 

identical owners and officers, that they were, to use St. John's 

phrase, ~sister corporations," as St. John testified, does not in 

and of itself mean that Southern Minerals' status as an operator 

is attributable to True Energy. As noted, at law, separate 

corporate entities are just that -- separate 

-- and are entitled to be considered on their own merits, 

regardless of their ownership and leadership, provided they 

function separately in fact and those acting for them do so in a 

manner consistent with their distinct nature. 

There are two general areas in which True Energy was 

involved with Fire Creek -- providing administrative services and 

providing engineering services. 

INDICES OF OPEEATOR STATUS 

INYOLVEMENT IN APMINISTBATIVE SERVICES 

Harold testified that True Energy took care of all of Fire 

Creek's business and that Fire Creek paid a fee to True Energy 

for this service (Tr. I, 71). However, when he was asked to 

specify what True Energy did, all he could think of was that True 

Energy paid Fire Creek's bills (Tr . I; 71-72). 

St. John was more thorough in his description of the 

services that True Energy provided to Fire Creek. He explained 

that while True Energy did indeed pay Fire Creek's vendors, it 

also monitored Fire Creek's cash flow, deposited its cash 

receipts and wrote checks, which Harold signed, to pay the 

vendors (Tr. II, 122-123). 

He further stated that True Energy paid for Fire Creek's 

liability insurance policies and that True Energy was fully 

reimbursed by Fire Creek (Tr. II, 150-151; 184). In St. John's 

view, True Energy did not dictate insurance choices to Fire 

2214 
Creek, and Fire Creek did not always accept True Energy's 

insurance recommendations. For example, St. John testified that 

Fire Creek provided its employees with more extensive medical 

insurance than he recommended (Tr. II, 199). 

Until July 1990, Fire Creek paid True Energy for the 

administrative services it received. After that, because of 

financial difficulties, Fire Creek did not pay True Energy and 

True Energy was "out" approximately $6,000 per month (Tr. II, 

184, 232-233) . 

St . John further stated that payroll matters were handled 

for Fire Creek by Arnold Lively and Associates (Lively) . 

St. John maintained that Fire Creek hired Lively and Lively dealt 

directly with Harold {Tr. II, 111, 115). Fire Creek kept track 

of the workers' hours, but Fire Creek's pay checks were prepared 

by Lively and Harold verified and signed them (Tr. II, 115) . 

Lively also prepared Fire Creek's federal and state tax 

forms, its FICA and Social Security forms, its depreciation 

schedules and its financial statements (Tr. II, 112-113; 124). 

I conclude that True Energy's involvement in administrative 

services was not such as to indicate it had supervision and 

control over day-to-day operations at the mine. While it is true 

Fire Creek could not long have operated had its receipts not been 

deposited, its bills not been paid and even, perhaps, had it not 

contracted for liability insurance, these business aspects of its 

operation are far removed from the day-to-day mining functions 

that lie at the heart of federal regulation. To find that they 

are indices of operator status would be to adopt a "but for" 

approach to the scope of the Act, one that would base enforcement 

upon that fact that no matter how removed a service is from dayto-day operation, if, ultimately, the mine can not operate 

without the service, the provider of the service is an operator. 

Such an approach does not have a rational limit and its logical 

extension could result in holding power companies, and or 

accounting firms, to be "operators" within the meaning of section 

3 (d). 

Moreover, unlike Bowling and St. John's actions for Southern 

Minerals regarding Fire Creek's employment, production, and 

finances, those who acted for True Energy in providing 

administration services did so on a separate and clearly defined 

2215 
basis. There was no confusion about when they were acting for 

True Energy and when they were acting for Fire Creek. Fire Creek 

and True Energy agreed on the services and on the price for the 

services. 

INVQL\TEMENI IN ENGINEERING SERVICES 

Initially, True Line was responsible for mining pr~jections, 

spad work, and mapping for Fire Creek (Tr. I , 78-79). The 

projections were developed by Harold and Bowling with the 

assistance of James Boardwine, who worked for True Line. 

Although Boardwine testified that he never discussed the 

projections with Bowling, True Line's invoices indicate that True 

Line representatives met with Harold and Bowling concerning the 

projections, and I believe this in fact occurred (Tr. II, 275-

276i Gov. Exh. 4 at 2,4). Be that as it may, Boardwine worked 

for True Line, not for True Energy. Moreover, the purpose of the 

projections was to ensure that development of the mine did not 

"stray" outside the lease and that Southern Minerals' leased coal 

was mined without waste. 

Fire Creek called True Line when it wanted spads set. When 

production was good, _True Line set spads· approximately twice a 

week . Around January 1990, True Line stopped doing spad work and 

True Energy hired replacements for Fire Creek {Tr. I, 81) . The 

persons hired worked for other of Southern Minerals' contractors 

in addition to Fire Creek . St. John made clear in his testimony 

that Allen Riggins, the person who did most of the spad work, in 

effect was regarded as an employee of True Energy {~ Tr. I I , 

225, see also Tr. II, 345, Tr. I, 81) . I accept St. John's 

testimony, and I find that True Energy effectively replaced True 

Line as the entity responsible to Fire Creek for spad work at the 

mine. 

The spad work was connected to mapping of the mine, which 

was done by Boardwine, at Harold's direction . Harold stated, "I 

would show . . . [Boardwine] what I wanted on the maps; and he 

would make those maps; you know, the changes we'd make in 

direction or ventilation or anything (Tr. I, 81) ." Although True 

Line stopped doing the spad work, it continued to prepare the 

maps based upon information that Riggins and other True Energy 

employees provided, except that True Energy's employees at times, 

and at Harold's request, drew small section maps that the .mine 

foremen carried and used (Tr. I, 85-86, 87-89; Tr. II, 133-134). 

2216 
I conclude that True Energy's involvement in engineering 

services was not such as to indicate it had supervision and 

control over day-to-day mining operations. As stated, I do not 

find that True Energy was involved substantially with mining 

projections and there is no indication that True Energy, through 

its connection with spad setting, surveying, and its limited 

connection with map preparation, controlled or had the authority 

to control day-to-day mining . 

As I have repeatedly observed, in my view it is not enough 

that a company be in some way involved with various aspects of 

mining . All operators are not endowed with the resources 

necessary to finance and control all aspects of the mining 

process. The economic realities of the coal fields are such that 

in some instances either there is contract mining or th~re is no 

mining. When this is the case, it is not unusual, indeed it is 

common, for those doing the actual mining to rely on others for 

things such as map preparation, spad setting, and the development 

of projections, and that is exactly what Fire Creek did with 

regard to True Energy. 

The Secretary has .. not established that True Energy had 

control over or authority to exercise control over day-to-day 

mining of coal at the Fire Creek mine, and I fail to see how 

holding True Energy liable as an operator under these 

circumstances furthers the purposes of the Act. 

CONCLUSION 

I conclude that Southern Minerals substantially participated 

in the operation, control and supervision of the day-to-day 

operations of the Fire Creek No . 1 Mine, and therefore, was an 

operator of the mine within t~e meaning of section 3(d) of the 

Act. 

I conclude that True Energy did not ·substantially 

participate in the operation, control and supervision of the dayto-day operations of the Fire Creek No. 1 Mine, and therefore, 

was not an operator of the mine within the meaning ~f section 

3(d) of the Act. 

2217 
ORDER AND NOTICE OF HEAR,ING 

These proceedings are DISMISSED with respect to True Energy . 

The parties are advised that the civil penalty and contest 

aspects of these cases as they relate to Fire Creek and Southern 

Minerals, are scheduled to be heard commencing on Tuesday, March 

5, 1996, in Princeton, West Virginia. The specific hearing site 

will be designated later. The matters of fact and law are as 

stated in the pleadings, except that no further argument will be 

entertained on the status of the Contestants as operators under 

the Act . 

The parties are reminded that any person planning to attend 

the hearing who requires special accessibility features and/or 

the use of auxiliary aids (such as sign language interpreters) 

must request those in advance (S,e.e 29 C.F .R. §§ 2706 . lSO(a) (3) 

and 2706 . 160(d)}) . 

In preparation for the hearing, the parties are directed to 

complete the following on or before February 16, 1996: (a} confer 

on the possibility of settlement and stipulate as to all matters 

that are not substantial dispute; (b) stipulate the issues and 

fact and law remaining for the hearing, and, if unable to 

stipulate· the issues, exchange written statements of the issues 

as contended by the respective parties; (c} exchange lists of 

exhibits, and, at the request of a party, produce exhibits for 

inspection and copying; (d) stipulate as to those exhibits which 

may be admitted into evidence without objection, and as to others 

indicate whether the exhibit is accepted as an authentic 

document; and (e} exchange witness lists with a synopsis of the 

testimony expected of each witness. 

Finally, the parties are directed to file on or before 

February 20, 1996, prehearing reports stating (a} lists of 

exhibits and witnesses together with the parties' synopses of 

expected testimony; (b) stipulations entered into; ( c ) 

statements of the issues; and (d) a memorandum of law on any 

legal issue raised with citations to the principal authorities 

relied upon. 

J>vv;cl f'μ~ 

2218 

David F . Barbour 

Administrative Law Judge 
Distribution: 

Pamela S. Silverman, Esq., Office of the Solicitor, U.S. Dept. of 

Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203 

(Certified Mail) 

Robert I. Cusick, Esq., Marco M. Rajkovich, Jr. , Esq . , 

Wyatt, Tarrant & Combs, 1700 Lexington Financial Circle, 

Lexington, KY 40507 (Certified Mail) 

David Burton, Esq., P. O. Box 5129, 1460 Main Street, 

Princeton, WV 24740 (Certified Mail) 

\mca 

2219 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

December 15. 1995 

OLIVER J. BOUTET, 

Complainant 

v. 

AMES CONSTRUCTION COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 95-373-DM 

WE MD 95-07 

Barrick Goldstrike Mine 

ORDER OF DISMISSAL 

Before: Judge Merlin 

On May 15, 1995, the complainant, Oliver J . Boutet, filed with 

the Conunission a complaint of discrimination under section lOS(c) 

of the Federal Mine Safety and Health Act of 1977. On May 17, 

1995, the Conunission sent Mr. Boutet a letter informing him that 

additional information was needed to be filed in order for his case 

to be processed. 

Having received no response to the May 17 letter, an order 

to show cause was issued to Mr. Boutet on June 27, 1995, directing him to submit the information. Mr. Boutet was told that if 

he failed to respond to the June 27 order his complaint would be 

dismissed. The order was sent to Mr. Boutet certified mail 

return receipt requested but was returned to the Commission 

marked unclaimed. 

On October 18, 1995, a second order to show cause was sent 

to Mr. Boutet because a review of the file showed that both the 

May 17 letter and June 27 order to show cause were mailed to 

Mr. Boutet at the address listed on the letter that had been sent 

by MSHA advising Mr. Boutet that no discrimination occurred. 

This was an error because Mr. Boutet's letter of complaint to the 

Commission lists a different address. Given the discrepancy in 

the mailing address, a new show cause order was issued and the 

Complainant was furnished with copies of the May 17 letter and 

the June 27 show cause order. The October 18 order was sent 

certified mail return receipt requested but was returned to the 

Commission marked "Attempted not known, Insufficient address" . A 

handwritten notation on the envelope indicates that a suite 

number was necessary for this address. On December 13, 1995, my 

law clerk attempted to contact Mr. Boutet by telephone. However, 

no phone number was listed for him in the Reno, Nevada area. 

2220 
Under Commission rule 2700. 7 (c) , 29 C. F . R. § 2700. 7 (c) , 

service is complete upon mailing when sent by certified mail. See, 

Matter of Park Nursing Center, Inc., 766 F.2d 261 (6th Cir. 1985); 

Cf. Fed. R. Civ. P . 4(c) (2) (C) (ii), S(b). 

In light of the foregoing, it is ORDERED that the discrimination complaint be DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Mr. Oliver Boutet, 1150 Terminal Way, Reno, NV 89502 

Ames Construction Company, 2001 Griffin, Carlin, NV 89822 

/gl 

2221 
FEDERAL MJ:NB SAFETY AND HEALTH REVJ:EW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

DEC l 8 1995 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 94-108-M 

A.C. No. 29-01380-05511 

v. 

. . 

Sedillo Hill Mine 

WESTERN MOBILE NEW MEXICO, INC.,: 

Appearances: 

Before: 

Respondent 

DECISION 

Robins. Horning, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, 

for Petitioner; 

Katherine Shand Larkin, Esq., Jackson & Kelly, 

Denver, Colorado, for Respondent. 

Judge Manning 

This case is before me on a petition for assessment of a 

civil penalty filed by the Secretary of Labor, acting through the 

Mine Safety and Health Administration ("MSHA"), against Western 

Mobile New Mexico, Inc. ("Western Mobile"), pursuant to sections 

105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. §§ 815 and 820 ·("Mine Act"). The petition alleges one 

violation of the Secretary's safety standards. For the reasons 

set forth below, I find that the Secretary did not establish the 

violation and I vacate the citation. 

A hearing was held in this case on April 11 and 12, 1994, in 

Albuquerque, New Mexico. The parties presented testimony and 

documentary evidence and filed post-hearing briefs. 

I. FINDINGS OF FACT 

Western Mobile operates the Sedillo Hill Mine, a surface 

limestone mine in Bernalillo County, New Mexico. Limestone is 

mined and crushed at the mine site. The pit consists of several 

benches, the faces of which are between 15 and 35 feet high. 

(Tr. 221). Limestone is loosened from a bench using explosives. 

A series of holes are drilled down from the top of the bench, 

explosives are loaded into the holes and the explosives are 

. 2222 
detonated from some distance away. The loosened material is 

loaded and transported to the crushing plant. At the time the 

citation was issued, driiling and blasting at the Sedillo Hill 

Mine were performed by an independent contractor, sandy Jones 

Construction Company ("Jones Construction"). Each bench was 

blasted once every week or two. (Tr. 166). 

On September 15, 1993, an employee of Jones Construction, 

Marvin Anglin, blasted a bench near the northwest corner of the 

pit. Three individuals were in the same area of the pit as Mr. 

Anglin at the time of the blast: Matt Carnahan, Western Mobile's 

plant manager; and two employees of Jones Construction's insurance carrier. One of these insurance agents, Mike Wilson, was 

seriously injured when fly rock from the blast struck him. He 

suffered a bruised liver and back trauma . (Tr. 149-50). Apparently, his injuries were not of a permanent nature. 

Mr. Sandy Jones, owner of Jones Construction, notified MSHA 

of the accident and MSHA Inspector Omar Sauvageau was sent to the 

mine to investigate. He was accompanied by Thomas J. Loyd, an 

MSHA supervisory mining engineer. After conducting an investigation, Inspector Sauvageau issued citations to Western Mobile and 

to Jones Construction. The section 104(a) citation issued to 

Western Mobile alleges a violation of 30 C.F.R. § 56 . 6330 . The 

citation states: 

On 9/15/93 a blasting accident occurred 

at the Sedillo Hill Mine, where one person 

was injured and hospitalized by fly rock, and 

two other persons were peppered by small material from the round which was blasted in 

the pit. The men were located approximately 

500 feet from the blast site when they initiated the blast. There was not a suitable 

blasting shelter in the area where the blast 

was initiated. The men were standing next to 

pickup trucks which were intended to be used 

as shelters, not behind them as intended. 

(Ex. G-6). In the citation, the inspector determined that the 

alleged violation was significant and substantial and was caused 

by Western Mobile's moderate negligence. The inspector also 

determined that the alleged violation was reasonably likely to 

cause a fatal injury. (Ex. R-1). The Secretary assessed a penalty of $3,000.00 against Western Mobile. 

Tne cited safety standard provided: 

Ample warning shall be given before blasts 

are fired. All persons shall be cleared and 

removed from the blasting area unless suit-

' able blasting shelters are provided to pro2223 
tect persons endangered by concussion or flyrock . from blas~ing. 1 

The term "blasting area" is defined as "the area near blasting 

operations in which concussion or flying material can reasonably 

be expected to cause injury." 30 C.F.R. § 56.2. The issue in 

this case is whether the four individuals were in the "blasting 

area" at the time the explosives were detonated. 

Inspector Sauvageau testified that a mine operator must look 

at a number of factors when establishing its blasting procedures. 

He stated that these factors include the geological makeup of the 

rock, type of round that is drilled, depth of the hales, amount 

of explosives used, and the history of blasting at the pit. {Tr. 

28, 52). Based on his analysis of these factors, he determined 

that the individuals were within the blasting area. 

He believed that the fact that a man was injured showed that 

the people were too close to the blast site. {Tr. 27, 30, 53). 

He concluded that the history of blasting at this particular mine 

should have alerted Western Mobile to the hazard. He also considered the fact that the pit wall was highly fractured, and the 

blasting contractor, Jones Construction, had difficulty loading 

at least one of the· holes because of cracks in the rock. He 

believed that the explosive material went into cracks in the rock 

and that this condition created an increased risk of fly rock. 

On this particular blast, 27 holes were drilled from the top 

of the bench . Each hole was 19 feet deep and was 3~ inches in 

diameter. Nine holes were in each of three rows and the first 

row was about seven feet back from the edge of the bench. The 

holes were filled with an ammonium nitrate-fuel oil blasting 

agent ("anfo"). In one to four of the holes, the anfo entered 

cracks in the rock. Mr. Anglin, the contractor's employee, followed his usual practice when cracks are encountered. He placed 

empty ammonium nitrate bags into the hole to block the cracks, 

placed cuttings2 into the hole, and then continued to fill the 

hole with anfo. 

The Secretary's witnesses testified that because anfo went 

into the highly fractured rock, ·the rock did not blast as it 

should. When blasted, rock will "pull out" in the direction of 

least resistance~ (Tr. 35) In this case, rock came straight out 

the side of the bench. Inspector Sauvageau testified that rock 

This safety standard was effective through January 31, 

1994 . It ha s been superseded by section 56.6306, which differs 

substantially from the standard at issue in this proceeding. 

2 

bit. 

Cuttings are ground rock that is removed from the drill 

(Tr. 23 3) . 
went a total of about 600 to 800 feet into the pit. (Tr. 32). 

Matt Carnahan testified that when anfo enters cracks in the rock, 

the contractor follows an established procedure to minimize the 

risk and that fly rock does not usually travel 500 feet in such 

circumstances. 

II. SUMKARY OF THE PARTIES' ARGUMENTS 

A. Secretary 

The Secretary argues that because Western Mobile did not 

have a suitable blasting shelter, it was required to remove all 

people from the blasting area. He refers to the definition of 

"blast area" at 30 C.F . R. § 56.6000. 3 The Secretary relies 

heavily on the first sentence of this definition and argues that 

the evidence establishes that people were in an area in which 

flying material caused injury to an individual. He further maintains that the limestone formation contained numerous vertical 

and horizontal cracks that created weak zones and that a prudent 

person would recognize that such weak zones may blow out and 

create a fly rock problem. Anfo entered these cracks around a 

number of holes, creating a greater potential for fly rock. He 

contends that blasters frequently initiate shots at this mine 

from a distance of 1000 feet or more and that this history demonstrates Western Mobile's knowledge of the hazard . 

B. Western Mobile 

Western Mobile does not dispute that it did not have a 

blasting shelter. It contends that it did not violate the safety 

standard because it removed all persons from the area where fly 

rock was reasonably expected to cause injury. It relies on the 

definition of blasting area in 30 C.F.R. § 56.2 and the Comrnis3 "Blast area" is defined as: 

The area in which concussion (shock wave), 

flying material, or gases from an explosion 

may cause injury to pers9ns. In determining 

the blast area, the following factors shall 

be considered: 

(1) Geology or material to be blasted. 

(2) Blast pattern. 

(3) Burden, depth, diameter, and angle of 

the holes. 

(4) Blasting experience of the mine. 

(5) Delay system, powder factor, and pounds 

per delay. 

(6) Type and amount of explosive material. 

(7) Type and ~mount of stemming. 

222,5 
sion's decision in Hobet Mining & Construction Co., 9 FM.SHRC 200 

(February 1987). It contends that the blaster, Mr. Anglin, considered the relevant factors, including the blasting history, 

geology of the area, the amount and type of explosives and stemming used, and the depth and pattern of the holes. It argues 

that Mr. Anglin reasonably concluded that the men were not within 

the blasting area when he fired the shot. Western Mobile maintains that the Secretary failed to establish that the blaster did 

not consider or employ these factors when initiating the blast. Western Mobile believes that the citation was issued solely because there was an injury. It contends that it complied with the 

requirements of the standard and that the cited fly rock incident 

was a "fluke occurrence. " (W.M. Br. 4). • 

XII. DISCUSSION WITH FURTHER FINDINGS 

Mm 

CONCLUSIONS OF LAW 

The issue .in this case is whether Western Mobile removed all 

persons from the blasting area as required by section 56.6330. 

The applicable definition provides that the blasting area is the 

area near blasting operations in which "concussion or flying 

material can reasonably be expected to cause injury." I reject 

the Secretary's contention that the definition of "blast area" is 

applicable to the safety standard. Because the new safety standdard at section 56.6306 uses the term '"blast area," the defini- ti~n of that term applies to that regulation and not to the old 

standard at issue in this case. 5 The Secretary's expert witness, 

Richard Fisher, could not explain why the definition for the new 

standard should be applied in a case involving the old standard. 

(Tr. 114-15) • 

In Hobet, the Com.mission interpreted the definition of 

"blasting area" in conjunction with an identical safety standard 

for surface coal mines. The commission held that in order to 

establish a violation, the Secretary must "establish the factors 

that a reasonably prudent person familiar with mine blasting and 

the protective purposes of the standard would have considered in 

4 Western. Mobile also argued that it was not properly cited 

for the alleged violation because Jones Construction was solely 

responsible for drilling and blasting in the pit. Because I find 

that the safety standard was not violated, I have not reached 

this issue . 

5 Nevertheless, the seven factors that are to be considered 

in determining the "blast area" are similar to the factors that 

all witnesses agreed should be considered by a reasonably prudent 

blaster before he detonates explosives. It is the first sentence 

of the definition of "blast area" that I have not considered in 

resolving the issues in the present case. 

2226 
making a determination under all of the circumstances posed by 

the blast in issue." Hobet, 9 FMSHRC at 202. The .Secretary 

"must then prove that the factors were not properly considered or 

employed." Id. The Commission went on to hold: 

An operator's pre-shot determination of 

what constitutes a blasting area is based not 

only upon the results of prior shots, but 

also depends upon a number of variables affecting the upcoming shot. The variables may 

include, but are not limited to, the amount 

and type of explosives used, the depth of the 

holes that constitute the shot, the toporaphy, and the expertise and prior experience 

of the blaster. 

9 FMSHRC at 202-03 (citation and footnote omitted). 

There is little dispute about the factors that a blaster 

should consider when determining the boundaries of the blasting 

area. The issue is whether the blaster considered and employed 

these factors in this case. The burden of proof lies with the 

Secretary to establish a violation. 

The first factor, the geology of the rock, was addressed 

extensively at the hearing. The rock at the Sedillo Mine is 

highly fractured and contains many horizontal and vertical 

cracks, called "voids" at the hearing. These voids are plainly 

visible in the photographs of the pit. (Exs. G-3, G-5 ) . The 

evidence establishes that a rock formation with voids is more 

likely to produce fly rock because the rock is highly fractured 

and because explosive material can enter these voids when the 

shot is loaded. The evidence does not establish, however, that 

the presence of fractured rock should have put Western Mobile or 

Mr. Anglin on notice that fly rock could reasonably be expected 

to travel 500 feet into the pit. Mr Carnahan discussed this 

particular shot with Mr. Anglin prior to its detonation and 

Mr. Anglin did not express any concerns about fly rock. 

(Tr. 208). 

The individuals in the pit were about 500 feet from the area 

being blasted. 6 Mr. Carnahan testified that he has observed 10 

to 12 shots while working at the pit. (Tr. 200). In each case, 

Mr. Anglin was the blaster who determined the blasting area. In 

these shots, Mr. Anglin established a blasting area that varied 

between 400 and 550 feet. (Tr. 200, 203). Fly rock was not 

observed at these distances in any of these shots. (Tr. 201-02 ) . 

6 Matt Carnahan measured the distanqe between the shot and 

his location as 530 feet. (Tr. 198) . 

22 27 
Mr. Anglin has an established procedure he . followed when 

voids were encountered. He places ammonium nitrate bags down the 

drill hole to block the void and stem off the hole. He then 

places cuttings into the hole and continues to load the hole. 

(Tr. 206). He adds a second detonator to reduce the risk of a 

misfire . Voids were encountered in a number of the holes in the 

shots that Mr. ·carnahan observed. He did not see any fly rock. 

{Tr. 207) . 

The Secretary' s witnesses did not testify that Mr. Anglin's 

procedures are inadequate when encountering voids in the rock. 

Indeed, Mr. Fisher speculated that the blaster must have "missed 

one" of the holes when using this procedure and that this 

"missed" hole created the fly rock. (Tr. 250). The Secretary's 

witnesses concluded that the procedures were inadequate in this 

instance because a person was hit and injured . This analysis 

begs the question. There was no showing that the fact that voids 

were encountered, a not infrequent occurrence, should have put 

Western Mobile on notice that the people in the pit were in an 

area where fly rock could reasonably be expected. The procedures 

used by Mr. Anglin were designed to compensate for the voids and 

had apparently been successfully applied in previous blasts. I 

note that Mr. · Anglin has over 20 years of experience in blasting 

and is a certified blaster. {Tr. 63, 209). 7 

A second factor is the blasting history at the mine. 

Inspector Sauvageau testified that he observed Jones Construction 

conduct a blast at the mine in 1991 that was detonated from the 

plant. He stated that the distance between the shot and the 

detonation point was about 1,500 feet. He also stated that all 

employees not involved in the blast assembled at the entrance to 

the plant some 2,000 feet from the blast site. Mr. Carnahan testified that Western Mobile requires employees to assemble at the 

plant gate so tha t a head count can be made to make sure that no 

employees are in the blasting area. {Tr. 210-12). In addition, 

under New Mexico law certain nearby roads are required to be 

blocked during all blasts and employees are dispatched from the 

plant gate to perform this function. Id. 

Moreover, the fact that one blast was detonated from a 

greater distance than the September 1993 blast does not establish 

an adverse "blasting history" at the mine . All witnesses agreed 

that the blasting area changes with the factors discussed above. 

Nothing in the record indicates that blasts are routinely detonated from 1,500 feet or that the blast at issue was detonated 

from an unusually close location. In addition, Inspector 

7 Despite the fact that Mr . Anglin knew more about the 

factors considered in establishing the blasting area than anyone 

else a t the mine, Inspector Sauvageau did not talk to Mr. Anglin 

during his investigation of this accident. (Tr. 57, 87}. 

·2 2 28 
Sauvageau did not have any knowledge of factors considered by 

Jones construction when e.stablishing the ·blasting are~ in the 

1991 blast. For example, the blaster could have used signif icantly more explosives in that blast, thereby requiring that a 

larger blasting area be established. Thus, the record does not 

establish that Western Mobile or Mr. Anglin failed to consider 

the blasting history when establishing the blasting area in this 

case. 8 

There is no evidence that MSHA considered any of the other 

factors in determining that a violation occurred. For example, 

MSHA did not consider the depth, diameter, and angle of the 

holes, the delay system, powder factor, or the amount or type of 

explosives used. MSHA is not required to consider all factors, 

but it is difficult to determine whether the blasting experience 

at a mine should have alerted an operator to the danger of fly 

rock in a particular blast without some consideration of these 

other factors. 9 

In this case, the Secretary adequately set forth the factors 

that a reasonably prudent person should consider in establishing 

the blasting area. I find, however, that the Secretary did not 

establish that Western Mobile or its contractor failed to adequately consider or employ these factors when the blast was detonated on September 15, 1993. Instead, the Secretary's witnesses 

asserted that because someone was injured, all persons were not 

cleared and removed from the blasting area. 

Although the Secretary showed that fly rock is more likely 

in the presence of highly fractured rock, it is clear that large 

areas of the pit are fractured and that the blaster takes precautions to deal with these conditions and the resulting voids. The 

Secretary did not establish that the blaster failed to consider 

the fractured nature of the rock when detonating the blast or 

that he was unqualified to establish a safe blasting area as a 

result of these conditions. 

8 Inspector Sauvageau also ref erred to an incident that 

occurred in the late 1980's in which a piece of fly rock struck 

the mine's scale house. (Tr. 37). · He testified that the scale 

house was located about 1,500 feet from the blast site. Id. 

Western Mobile presented evidence that the scale house was at a 

different location at the time of that incident and that the 

distance to the blast site was about 300 feet. (Tr • . 177}. For 

the reasons stated above, this incident does not establish a 

blasting history that should have put Western Mobile on notice 

that 500 feet was not a safe distance. 

9 Of course, the blast that caused the accident in this 

case is now an important part of Western Mobile's blasting 

history. 

2229 
IV. ORDER 

Accordingly, Citation No. 4109895 issued to Western Mobile 

New Mexico~ Inc . is hereby VACATED and this proceeding is 

DISMISSED. 

Distribution: 

Richard W. Manning ~r--f___._ Administrative Law Judge [,/ · 

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

of Labor, 525 Griffin street, suite ~01, Dallas, TX 75202 

(Certified Mail) 

Katherine Shand Larkin, Esq., JACKSON & KELLY, 1660 Lincoln 

Street, Suite 2710 , Denver, CO 80264 {Certified Mail) 

RWM 

2230 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION I 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

December 18, 1995 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on 

BEHALF OF ARTHUR R. OLMSTEAD, 

Complainant 

v . 

KNIFE RIVER MINING COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 96-81-D 

DENV CD 95-20 

Savage Mine 

Mine ID 24-00106 

ORPER OP TEMPORARY REINSTATEMENT 

This case is before me pursuant to Section lOS(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c). 

On November 24, 1995, the Secretary, on behalf of Arthur 

Olmstead, filed an application for temporary reinstatement. 

Subsequently, the parties reached an agreement concerning the 

temporary economic reinstatement of the Complainant. A Response 

to Application for Temporary Reinstatement and Agreed Order 

Regarding Temporary Economic Reinstatement, memorializing that 

agreement, was filed on December 11, 1995. 

Accordingly, the agreement for temporary economic 

reinstatement is APPROVED. It is ORDERED that the Complainant 

shall be TEMPORARILY REINSTATED by the Knife River Mining 

Company, effective December 7, 1995, in accordance with the terms 

of the Agreed Order Regarding Temporary Economic Reinstatement, 

which is attached to this order and whose provisions are 

incorporated in this order by reference thereto. 

~ tff1cf!i!'a. 

Administrative Law Judge 

2231 
Attachment 

Distribution: 

Tambra Leonard, Esq . , Office of the Solicitor, U.S. Department of 

Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 

(Certified Mail} 

Laura E. Beverage, Esq., and Anthony George, Esq., Jackson & 

Kelly, 1600 Lincoln St., Suite 2710, Denver, CO. 80264 

(Certified Mail} 

/lt 

2232 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY ANO HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

December 8, 1995 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

BUCK CREEK COAL INC. , 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket Nos . LAKE 94-72, etc . 

Buck Creek Mine 

ORDER GRANTING. IN PART. AND 

DENXING. · IN PART. RESPONDENT'S MOTION TO COMPEL 

Buck Creek has filed a motion to compel the Secretary to 

produce MSHA inspectors' notes taken during inspections of Buck 

Creek; conference worksheets; memoranda relating to civil special 

investigations, special assessments and civil knowing and wilful 

violations; and, all other investigative files on civil section 

110 cases, ·30 U.S.C. § 820(c). Claiming the "work-product" 

privilege found in Rule 26(b} (3) of the Federal Rules of Civil 

Procedure or that the documents relate to the criminal 

investigation of Buck Creek, the Secretary ob jects t o the 

production of eleven pages of conference worksheets, 25 memoranda 

relating to knowing and wilful v iolations and files in three 

section 110 cases. 1 

By order dated October 20, 1995, I ordered the Secretary to 

provide, for my in camera inspection, a copy of each contested 

document. Buck Creek Coal, Inc., 17 FMSHRC 1805 (October 1995 ) . 

1 The Secretary's response states that the requested 

inspectors' notes were provided to the Respondent on October 10, 

1995. 

22 33 
For the reasons indicated, the Respondent's motion is granted or 

denied as discussed below. 2 

Conference Worksheets 

The Secretary asserts that eleven pages of conference 

worksheets "contain the mental impressions of the conference 

officers when reviewing and discussing a citation" and, 

therefore, come within the "work-product" privilege. For a 

document to come within the "work-product" privilege, it must 

have been prepared in anticipation of litigation or for trial. 

Asarco, Inc., 12 FMSHRC 2548, 2558 (December 1980). In that same 

decision, however, the Commission held that if "litigation is 

contemplated but the document was prepared in the ordinary course 

of business rather than for the purposes of litigation, it is not 

protected." Id. 

With the exception of three documents identified only by the 

numbers 4262876, 4262982 and 4262989 and a two-page document 

dated "5-31-95" and signed by "Michael D. Rennie, Conferencing 

Officer", it appears that the documents, t6 the extent they are 

comprehensible at all, are notes taken during a conference rather 

than the recording of mental impressions of conference officers 

when reviewing and discussing a citation. The three numbered 

documents (the numbers apparently refer to citation or order 

numbers) and the May 31 document arguably do contain some mental 

impressions. Nonetheless, conference worksheets are prepared in 

the ordinary course of business and not solely for the purposes 

of litigation. Therefore, they are not protected by the "workproduct" privilege and are discoverable . Accordingly, the 

Respondent's motion to compel the production of copies of the 

eleven pages of conference worksheets will be granted .. 

Kemoranda Relating to J91owing/Wilful Violations 

The Secretary asserts that 12 of the 25 memoranda relate to 

the criminal investigation of Buck Creek. In addition, he argues 

that all of the memoranda come with the "work-product" privilege. 

The Secretary has not identified which 12 of the memoranda relate 

2 Since the Secretary bas not objected to producing any of 

the documents on the grounds of relevancy, I am assuming for the 

purposes of this order that they are all relevant. 

2 234 
to the criminal investigation. Nor has he indicated how they are 

related. Consequently, I find that that is not a basis for 

withholding the documents. I do find, however, that the 

memoranda come within the •work-productn privilege. 

The memoranda are reviews by the Supervisory Special 

Investigator of 104(d} (1) or 104(d} (2) orders or 104(a) citations 

issued in conjunction with a 107(a} order, 30 U.S.C. §§. 814 and 

817, which had been issued to Buck Creek, for possible knowing 

and/or wilful violations under Section llO(c) or (d) of the Act, 

30 u.s.c. § 820(c} and (d). In each instance, the violation was 

considered against criteria set out by MSHA for determining 

whether a violation is knowing and/or wilful . In each case, the 

recommendation was either -no further action under Section llO(c) 

or (d) of the Act with regard to this particular violation,• or 

that •the case be closed.• 

The recommendation, however, does not determine whether the 

document was prepared in anticipation of litigation. Rather, it 

is the purpose of the review whi~h is disp~sitive . In this case, 

the purpose of the ·review is to allow the Secretary to determine 

whether a special investigation should be commenced under Section 

llO(c) or (d) . The Commission has held that •[a] major function 

of an MSHA special investigation is to determine whether 

litigation should be commenced under section llO(c) or (d) of the 

Mine Act." Asarco at 2559. Furthermore, the recommendation of 

the Supervisory Special Investigator would not preclude the 

Secretary from instituting a special investigation. Accordingly, 

I conclude that the memoranda were made in anticipation of 

litigation and are protected by the "work-product" privilege. 

Having determined that the memoranda come within the "workproduct" privilege, they are subject to discovery "only upon a 

showing that the party seeking dis~overy has substantial need of 

the materials in the preparation of the party's case and that the 

party is unable without undue hardship to obtain the substantial 

equivalent of the materials by other means. n Fed. R. Civ. P. 

26(b} (3}. Buck Creek has made no such showing. Accordingly, the 

motion to compel the 25 memoranda relating to knowing/wilful will 

be denied. 

22 35 
Section 110 Inyestigatiye files 

The Secretary has submitted three Section 110 ·investigative 

files for inspection. 3 The Secretary objects to producing these 

files because they relate to the criminal investigation and 

because they are covered by the "work-product" privilege. With 

respect to one of the files, I conclude that it is related to the 

criminal investigation. I am unable, however, to reach a 

conclusion one way or the other concerning the remaining two 

files. On the other hand, I find that all of the files are 

within the "work-product" privilege. 

Despite the Commission's instructions in Buck Creek Coal 

Inc., 17 FMSHRC 501, 505 (April 1995), that "[t]he judge should 

also consider this commonality of evidence when determining the 

limits of discovery in order to permit civil proceedings to 

advance without prejudice to criminal matters," the Secretary has 

not indicated how the 110 investigations are related to the 

criminal matters. Notwithstanding that, I note that MSHA case 

file No. VINC-CSI-93-08 involves three orders that I recently 

continued on stay as being related to the criminal investigation 

of Buck Creek. Buck Creek Coal, Inc., 17 FMSHRC 2149 (November 

1995) . Consequently, I conclude that the file is not 

discoverable since it involves evidence and issues in the 

criminal case. I conclude that discovery of the remaining two 

files is not precluded by a commonality of evidence and issues 

with the criminal investigation. 

3 The Respondent originally indicated that eight 110 

investigative files were being withheld. In the cover letter 

submitting the documents for my inspection, counsel for the 

Secretary stated that six such files were enclosed. In fact, 

there were only three 110 investigative files. In re~ponse to my 

inquiry about the discrepancy, counsel for the Secretary s~ated 

in a letter dated December 5, 1995, that: 

In response to the court's October 20, 1995 .order to 

submit documents for in camera inspection, the ·Federal 

Mine Safety and Health Administration has informed me 

that after a search of its files there are only three 

section llO(c) investigative files instead of six. At 

the time, MSHA bel1eved that there were six files, but 

apparently they were mistaken. 

2236 
However, I conclude that all of the files were established 

in anticipation of litigation. This is so because the purpose of 

a 110 investigation "is to allow the Secretary to determine 

whether a case should be filed . " Asarco, supra. Accordingly, I 

find that the three 110 investigate files are within the scope of 

the "work-product" privilege. Since Buck Creek has not made the 

requisite showing of substantial need and undue hardship 

discussed above, the files are not discoverable and, with regard 

to them, the motion to compel will be denied. 

ORDER 

Accordingly, Buck Creek's motion to compel is GRANTED with 

respect to the eleven pages of conference worksheets and DENIED 

with respect to the 25 memoranda and the three 110 investigative 

files. The Secretary is ORDERED to provide counsel for Buck 

Creek copies of the eleven pages of conference worksheets within 

15 days of the da.te of this order. 

Distribution: 

if.rM~ T. Todd Hodgdon 

Administrative Law Judge 

Henry Chajet, Esq., Fiti A. Sunia, Esq., Patton Boggs, L.L.P., 

2550 M Street, N.W., Washington, DC 20037-1350 (Certified Mail) 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified 

Mail) 

Thomas A. Mascolino, Esq., Deputy Associate Solicitor, Office of 

the Solicitor, Mine Safety and Health, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

/lt 

2237 
FEDERAL MINE SAFBTY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

December 14, 1995 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) I 

Petitioner 

Docket No. WEST 95-426-M 

A. C. No. 24 - 00338-05502 QKD 

v . continental Mine 

INTERMOUNTAIN I RECO, INC., 

Respondent 

ORDER DENYING MOTION FOR SUMMARY DECISION 

Respondent has filed a motion for summary decision in this 

case pursuant to Commission Rule 67, 29 C.F.R. § 2700.67. Rule 

67(b) sets forth the grounds for granting summary decision, as 

follows: 

A motion for summary decision shall be 

granted only if the entire record, including 

pleadings, depositions, answers to interrogatories, admissions, and affidavits, shows: 

(1) That there is no genuine issue 

as to any material fact; and 

(2) That the moving party is entitled to summary decision as a 

matter of law . 

The two citations in this proceeding state that trucks containing ammonium nitrate were parked inside Respondent's repair 

shop . The citations allege a violation of 30 C.F.R. § 56.6801, 

which provides: "Vehicles containing explosive material and 

oxidizers shall not be taken into a repair garage or shop." 

Respondent contends that ammonium nitrate is an oxidizer, not an 

explosive material . It argues that the plain language of the 

safety standard prohibits vehicles containing "explosive material 

and oxidizers" from entering repair garages and shops. since the 

cited trucks contained oxidizers but not explosive materials, Respondent argues that the safety standard does not apply and the 

citations should be vacated. Respondent maintains that t he unambiguous wording of the regulati on supports its position that 

ve hicles containing ox i dizers alone do not violate the safety 

standard. 

2238 
The Secretary opposes the motion f o r summary decision. He 

argues that the plain language of the standard pr ovides t h at a 

vehicle containing only oxidizers is prohibited from entering a 

repair garage or shop. He contends that Respondent's interpretation of the word " and " in the standard is too narrow and that 

this term also means " as well as " and " or. " Second, he contends 

that the regulatory history of this provision supports his position . Finally, he argues that the trucks contained fuel oil and 

ammonium nitrate in separate compartments and that these mat erials constituted an explosive material when combined. 

The term " explosive material " is defined as " explosives, 

blasting agents, and detonators." 30 C.F.R. § 57.6000. The term 

"oxidizers" is not defined in the Secret ary ' s regu lati ons. Nevertheless, the parties do not dispute that the ammonium nitrate 

on the trucks was an oxidizer and not an explosive material, as 

those terms are used in the standard . Each citation was modified 

by the MSHA inspector to include the following language: 

Further investigati on revealed that the 

trucks .. . were loaded with ammonium nitrate 

which is an oxidizer but does not become explosive until it is mixed with an emulsifier 

containing fuel oil. There was no danger of 

these trucks explodi ng in the repair shop 

without a major fire being present. 

As a result of this modification, MSHA determined that the 

alleged viol ations were not significant and substantial. 

I find that Respondent is not entitled to summary decision 

under Commission Rule 67. First, there are genuine issues concerning the facts in this case. There is no evidence as to the 

meaning of the term "oxidizers " in the standard . In addition, 

the record contains no evidence about the relationship between 

oxidizers and explosi ve materials. The Secretary alleges that 

the trucks contained fuel oil and ammonium nitrate but that these 

materials were located in separate compartments. It is .my understanding that ANFO is created when these materials are mixed. Is 

ANFO an explosi ve material? If ammonium nitrate and fuel oil are 

in separate compartments is a expldsive material present? Do 

" explosives," " blasting agents " or "detonators," as those terms 

are used in the definition of "explosive materials," contain 

oxidizers? In short, the record does not contain the factual 

foundation I need to analyze the legal questions raised by 

Respondent. 

The essence of Respondent's argument is that the regulation 

unambiguously provides that a vehicle violates the standard only 

if it contains both explosives and oxidizers. It bases this 

argument on the conjunctive l:lsage of the word " and. 11 As stated 

by the Secretary, however, the word 11 and 11 can be used in the 

2239 
disjunctive sense. Under Respondent's interpretation, a truck 

containing only explosive materials would be permitted in a 

repair shop. Thus, a truck loaded with explosive materials that 

is parked in a repair shop would not violate the standard unless 

the truck also contained oxidizers. such an interpretation does 

not appear to be logical, but I cannot say for certain because 

the record is devoid of basic information about explosive materials and oxidizers. 

When a regulation is capable of being construed in two different ways by reasonably well-informed people, it is not unambiguous. Based on the limited record in this case, it would 

appear that section 57.6801 is capable of two logical interpretations, as presented by the parties. Respondent would have me 

rule on its motion based on a blind analysis of the meaning of 

the word "and." I believe that the word "and" must be interpreted in the context of the safety standard. The record does 

not contain sufficient facts for me to construe the meaning of 

that word within the standard at this time. The cases cited by 

Respondent are not inconsistent with my analysis. 

Accordingly, Respondent's motion for summary decision is 

DENIED on the basis that there are genuine issues of material 

fact and Respondent is not entitled to summary decision as a 

matter of law. For the same reasons, the Secretary's cross 

motion for summary decision is also DENIED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Ms. Barbara J. Renowden, Conference and Litigation Representaative, Mine Safety and Health Administration, P.O. Box 25367, 

Denver, co 80225-0367 

Robert A. Bingham, Esq., DYNO NOBEL, INC., Crossroads Tower, 

Eleventh Floor, Salt Lake City, Utah 84144 

RWM 

2240 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ECC INTERNATIONAL, 

Respondent 

December 18, 1995 

CIVIL PENALTY PROCEEDING 

Docket No. SE 95-451-M 

A. C. No. 09-01059-05506 

Buffalo China Clays Company 

DECISION DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

This case is before me upon a petition for assessment of a 

civil penalty under section 105(d) of the Federal Mine Safety and 

Health Act of 1977. The parties have filed a joint motion to 

approve settlement for the one violation in this case. A reduction 

in the penalty from $4,000 to $3,600 is proposed. A fatality is 

involved. 

Citation No. 3599861 was issued for a violation of 30 C.F.R. 

§ 56.9305(a) which requires that if truck spotters are used, they 

should be in the clear while trucks are backing into dumping 

position or dumping. The shift leadman was directing traffic and 

supervising road repairs at a dump location and failed to stand 

clear of a truck backing into dumping position and the truck backed 

over the leadman killing him. According to the citation, the 

violation was significant and substantial and negligence was rated 

as low. The respondent in this case is the operator of this mine. 

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); 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). 

The violation in this case is the ultimate in gravity. 

However, the settlement motion fails to discuss any of the facts 

2241 
surrounding the fatality or identify the reasons for the proposed 

reduction. The parties have submitted nothing more than a 

boilerplate motion. Even where the proposed reduction is only 10%, 

I cannot approve any penalty for this fatality when I do not know 

what happened. 

A virtually identical settlement motion was filed in Docket 

No. SE 95-432-M which is the penalty proceeding against the 

independent contractor who employed the driver of the truck 

involved in the accident. It too, is being disapproved. 

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) 

John A. Black, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1371 Peachtree St., N.W., Room 339, Atlanta, GA 30367 

Mr. E. Stewart Martin, Safety and Health Manager, ECC International, P. O. Box 471, Sandersville, GA 31082 

Douglas N. White, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., 414, Arlington, VA 22203 

/gl 

2242 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASH6NGTON, D.C. 20006 

December 18, 1995 

SECRETARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C T HARRIS INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No . SE 95-432-M 

A. C. No . 09-01059-05502 C6C 

Buffalo China Clays Company 

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 

Health 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 $5,000 to $4,500 is proposed. A 

fatality is involved . 

Citation No . 3599862 was issued for a violation of 30 C. F. R. 

§ 56.9305(c) which requires that when a truck driver cannot 

clearly recognize a spotter's signal, the truck should be 

stopped. A truck driver in the employ of the respondent did not 

know the location of the shift leadman and backed his truck over 

the leadman killing him. According to the citation, the violation was significant and substantial and negligence was rated as 

low . The respondent in this case is an independent contractor 

performing work at this mine. 

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); 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). 

2243 
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. Even where the proposed reduction is only 

10%, I cannot approve any penalty I do not know what happened . 

A virtually identical settlement motion was filed in Docket 

No. SE 95-451-M which is the penalty proceeding against the 

operator of this mine involving the same accident. It too, is 

being disapproved. 

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, the case will be 

set for hearing. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

John A. Black, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1371 Peachtree St., N.W. , Room 339, Atlanta, GA 30367 

Mr. Richard G. Jones, Safety Manager, C T Harris, 9411 Deepstep 

Road, Sandersville, GA 31082 

Douglas N. White, Esq., Counsel, Trial Litigation, Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Su~te 

414, Arlington, VA 22203 

/gl