DECEMBER 2002 

THERE WERE NO COMMISSION DECISIONS OR ORDERS 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-03-2002 Original Sixteen to One Mine, Inc. 

12-18-2002 Kinder Morgan Operationg L.P. "C" 

12-23-2002 Cord Easley v. Morrill Asphalt Paving 

12-24-2002 Arnold Crushed Stone, Inc. 

12-31-2002 The Ohio Valley Coal Company 

i 

WEST 2002-224-M Pg. 1053 

KENT 2003-85-R Pg. 1055 

WEST 2001-133-DM Pg. 1058 

CENT 2002-242-M Pg. 1070 

LAKE 2002-61 Pg. 1072 

DECEMBER 2002 

No cases were filed in which Review was granted during the month of December: 

No cases were filed in which Review was denied during the month of December: 

ii 

ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

December 3, 2002 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

ORIGINAL SIXTEEN TO ONE MINE, 

IN CORPORA TED, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2002-224-M 

A. C. No. 04-01299-05542 

Docket No. WEST 2002-225-M 

A. C. No. 04-01299-05543 

Sixteen To One Mine 

Appearances: Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, 

San Francisco, California, on behalf of Petitioner; 

Michael Miller, President, Original Sixteen to One Mine, Inc., 

Alleghany, California, on behalf of Respondent. 

Before: Judge Melick 

These cases are before me upon petitions for assessment of civil penalty under Section 

105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). Citations No. 7992100 and 

7987759 have been severed from Docket No. WEST 2002-224-M and consolidated with Docket 

No. WEST 2002-224-M(A). 

At hearings the Secretary vacated Citations No. 7992098, 7996613 and 7992158 and 

proposed to settle the remaining citations. Modification of certain citations and a reduction in 

penalty to $852.00, were proposed. I have considered the representations and documentation 

submitted in this case and I conclude that the proffered settlement is acceptable under the criteria 

set forth in Section 11 O(i) of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, and it is 

ORDERED that Respondent pay a penalty of $852.00, within 40 days of this order. 

I /' / ,1 \ ( l;. \ / /I l / if 1 1 .' -l l i·1!( I . l.v..- v~ l~ ! 

Gary tyiclick ) v _/ 

Admi~istrati Vet Law Judge 

(202) 434-9971 

1053 
Distribution: (Certified Mail) 

Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St., Suite 

1110, San Francisco, CA 94105 

Michael M. Miller, President, Original Sixteen to One Mine, Inc., P.O. Box 909, 527 Miners St., 

Alleghany, CA 95910 

\mca 

1054 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

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

Washington, D.C. 20001 

Telephone: (202) 434-9958 

KINDER MORGAN OPERA TING 

L.P. "C", 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Fax: (202) 434-9949 

December 18, 2002 

1055 

CONTEST PROCEEDINGS 

· Docket No. KENT 2003-85-R 

Citation No. 7648459; 5/2112002 

Docket No. KENT 2003-86-R 

Citation No. 7648560; 5/21/2002 

Docket No. KENT 2003-87-R 

Citation No. 7648561; 5/21/2002 

Docket No. KENT 2003-88-R 

Citation No. 7648562; 5/21/2002 

Docket No. KENT 2003-89-R 

Citation No. 7648563; 5/21/2002 

Docket No. KENT 2003-90-R 

Citation No. 7648565; 5/30/2002 

Docket No. KENT 2003-91-R 

Citation No. 7648566; 5/31/2002 

Docket No. KENT 2003-92-R 

Citation No. 7648567; 5/31/2002 

Docket No. KENT 2003-93-R 

Citation No. 7648572; 6/12/2002 

Docket No. KENT 2003-94-R 

Citation No. 7648685; 7/16/2002 

Grand Rivers Terminal 

Mine ID 15-18234 
ORDER OF DISMISSAL 

Before: Judge Barbour 

On November 4, 2002, counsel for the operator, Kinder Morgan Operating, L.P. 

("Kinder") filed a notice of contest for ten citations issued in the above captioned cases. In 

the notice of contest, Kinder admits the untimely filing, but contends its employees 

inadvertently failed to forward the citations to company officials due to the employees' 

confusion over MSHA jurisdiction in other cases currently on appeal in the U.S. Court of 

Appeals for the 6th Circuit. The Secretary of Labor ("Secretary"), subsequently filed an 

answer and Motion to Dismiss, arguing that Commission case law requires the dismissal of 

contest proceedings if they are not timely filed. 

Although Kinder may have been confused about MSHA jurisdiction, the 

Commission has made no exception to the 30 day restriction for "confusion." As the 

Secretary correctly asserts, a long line of cases dating back to the Interior Board of Mine 

Operation Appeals have held the late filing of notices of contest of citations is not 

permissible under the Mine Act and under its predecessor the Federal Coal Mine Health and 

Safety Act of 1969. Consolidation Coal Co., 1 MSHC1029 (1972); Old Ben Coal Co., 1 

MSHC 1330 (1975); Alexander Brothers, 1 MSHC 1760 (1979); Island Creek Coal Co. v. 

Mine Workers, 1FMSHRC989 (Aug. 1979); Amax Chemical Corp., 4 FMSHRC 1161 

(June 1982); Industrial Resources, Inc., 7 FMSHRC 416 (Mar. 1985); Allentown Cement 

Company, Inc., 8 FMSHRC 1513 (Oct. 1986); Rivco Dredging Corp., 10 FMSHRC 889 

(July 1988); Big Horn Calcium, 12 FMSHRC 463 (Mar. 1990); Prestige Coal Co., 13 

FMSHRC 93 (Jan. 1991); Costain Coal Inc;., 14 FMSHRC 1388 (Aug. 1992); Diablo Coal 

Co., 15 FMSHRC 1605 (Aug. 1993); C and S Coal Co., 16 FMSHRC 633 (Mar. 1994); 

Asarco, Inc., 16 FMSHRC 1328 (June 1994); See also, !CI Explosives USA, Inc., 16 

FMSHRC 1794 (Aug. 1994). 

Accordingly, the Secretary's Motion to Dismiss is GRANTED. Kinder should note, 

however, that the failure properly to contest a citation does not preclude it from challenging 

in a subsequent civil penalty proceeding the violations alleged in the citations. 

_])~1(/(~A~ DaviCl Y.~arbour -

Chief Administrative Law Judge 

1056 
Distribution: 

Charles E. Allen, III, Esq., Frost, Brown, Todd, LLC, 400 West Market St., 3211d Floor, 

Louisville, KY 40202 

Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard 

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

/fb 

1057 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

CORD EASLEY, 

Complainant 

V. 

DENVER, CO 80204-3582 

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

December 23, 2002 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2001-133-DM 

WEMD00-13 

MORRILL ASPHALT PA YING, 

Respondent 

Portable Crusher #1 

Mine I.D. 45-03357 

Appearances: 

Before: 

DECISION 

Devin Poulson, Esq., Lacy & Kane, East Wenatchee, Washington, 

for Complainant; 

Lewis L. Ellsworth, Esq., Gordon, Thomas, Honeywell, Malanca, 

Peterson & Daheim, Tacoma, Washington, for Respondent. 

Judge Manning 

This case is before me on a complaint of discrimination brought by Cord Easley 

against Morrill Asphalt Paving ("Morrill") under section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). Mr. Easley alleges that he 

was terminated from his employment with Morrill because he complained about safety 

conditions at the crusher. An evidentiary hearing was held in Wenatchee, Washington. The 

parties filed post-hearing briefs. For the reasons set forth below, I find that Mr. Easley 

established a prima facie case of discrimination but that Morrill established that it would have 

terminated Easley for his unprotected activities alone. 

I. SUMMARY OF THE EVIDENCE 

At all pertinent times, Morrill was in the sand and gravel business. Prior to November 

2000, Morrill operated a portable rock crushing plant in the State of Washington. This case 

arose as a result of events that occurred between January and May 2000 at the portable 

crusher. 

Cord Easley starting working for Morrill in July 1999 as a groundsman. He performed 

various tasks such as greasing bearings and cleaning up spilled material from under conveyor 

belts. After he had worked for Morrill for several months, he was transferred to the · 

1058 
maintenance crew. As a maintenance employee at the crusher he welded guards on 

equipment, replaced bearings on shafts, and repaired equipment. 

In October 1999, the portable crusher was moved from Gold Bar, Washington, to 

Maple Valley, Washington. Sometime after the crusher was set up in Maple Valley, Easley 

was assigned to work on the evening maintenance shift assisting Mike Fletcher. They were 

the only employees working on this shift during which equipment maintenance was 

performed. Sometime in January 2000, Fletcher was transferred to the day shift as a plant 

operator and Easley remained on the evening shift as the maintenance man. 

Because Morrill needed to have more than one person working on the evening shift, it 

hired Don Drinkwater to work with Easley. Easley functioned as the chief mechanic on the 

evening shift. Easley and Drinkwater reported to work about two hours before the end of the 

day shift, so there was an overlap of shifts. Their supervisor was Roger Harting, the plant 

superintendent. 

In January, Fletcher, Easley, and other employees became concerned that Drinkwater 

and Randy Syria were either drinking on the job or drinking before they arrived at work. They 

believed that both employees smelled of alcohol. Easley testified that he saw Drinkwater go 

to his truck on a number of occasions to get a drink during the evening shift. (Tr. 42). Easley 

testified that he could smell alcohol on Drinkwater's breath. Easley also stated that 

Drinkwater admitted that he was drinking. (Tr. 43). Easley testified that sometime before 

Christmas 1999, when he was working the day shift, he noticed that Syria sometimes smelled 

of alcohol. (Tr. 41 ). He would be surly when he had been drinking. Easley was concerned 

that these employees could cause an accident or injury. 

Easley discussed the drinking issue with Fletcher and John Partridge, another Morrill 

employee. Approximately a week after Drinkwater started work, Easley raised the drinking 

issue with Mr. Harting. About a week later, Fletcher and Easley became concerned that 

Harting was not doing anything to stop employees from being intoxicated at work. Fletcher 

had previously developed a relationship with Richard Thody, the safety director for 

Goodfellow Brothers, Inc., the parent company of Morrill. Fletcher called Thody on the 

telephone to discuss the drinking problem. Fletcher handed the phone to Easley so that Easley 

could describe what he knew from events that occurred on his shift. This short conversation 

was the only contact that Easley had with Mr. Thody. 

Thody raised the drinking issue with upper management. Morrill held a meeting at the 

crusher on February 8, 2000, to discuss alcohol abuse. Easley, Fletcher, Syria, Drinkwater, 

and all other crusher employees were in attendance. Chris Gibbs, Morrill's shop 

superintendent, was also present. Gibbs supervised Morrill's maintenance shop in Wenatchee, 

Washington, but he also indirectly supervised maintenance employees at the crusher. At this 

meeting, employees were told that anyone who was suspected of consuming alcohol on the job 

1059 
would be tested and that, ifhe tested positive, he would be immediately terminated from his 

employment. 

Immediately following this meeting, Harting told Fletcher that he was being laid off 

from his job. He was not given much of an explanation except that Morrill did not need two 

plant operators at the crusher. When he discussed his lay-off with Thody, Thody told him that 

he may have been discriminated against for raising safety issues. Fletcher filed a 

discrimination complaint with the State of Washington under the Washington Industrial Safety 

and Health Act ("WISHA"). The Washington Department of Labor and Industries ("L&I") 

investigated Fletcher's complaint. Fletcher also filed a discrimination complaint with the 

Department of Labor's Mine Safety and Health Administration ("MSHA"). After MSHA 

determined that he was not discriminated against, Fletcher filed a complaint on his own behalf 

under section 105(c)(3) of the Mine Act. Following an evidentiary hearing, I determined that 

Morrill discriminated against Fletcher in violation of the Mine Act. Fletcher v. Morrill 

Asphalt Paving, 24 FMSHRC 232 (Feb. 2002). 

Easley testified that neither Syria nor Drinkwater exhibited any signs of drinking after 

the meeting of February 8, 2000. As far as Easley could tell, these employees were no longer 

drinking on the job after that date. On May 12, 2000, Easley was interviewed by.an 

investigator from L&I about Fletcher's WISHA complaint. An attorney for Morrill was 

present during the interview. Easley told the investigator that, although he did not have any 

proof that Fletcher was laid off because of his safety complaints, "[t]hat's just what he 

figured." (Ex. R-2 p. 7). Easley also told the investigator that Morrill had not retaliated 

against him for his involvement in any safety complaints. Id. Easley continued working for 

Morrill until May 26, 2000, when he was told that he was being laid off. Easley contends that 

he was separated from his employment because he talked to Thody about employees drinking 

on the job and, to a lesser extent, because he told the L&I investigator that he "figured" that 

Fletcher was laid off because of his safety complaints. 

Mr. Harting testified that Easley's termination was not a result of his phone 

conversation with Thody about drinking on the job or by his statement to the L&I investigator. 

Harting and Gibbs testified that he was terminated because Morrill was dissatisfied with his 

skills as a mechanic.* Specifically, they testified that after Easley became the chief mechanic 

for the crusher, the crusher was down for repairs more frequently than when Warren Smithers 

was the chief mechanic. Morrill attributed this increased down time to Easley' s lack of skill. 

• At the hearing, counsel for Easley objected to the testimony of Gibbs because he was not 

included in Morrill's list of witnesses provided in response to the notice of hearing. (Tr. 102-05). 

Counsel for Morrill responded that the omission was an oversight. The parties did not conduct any 

discovery in this case. I allowed ·Gibbs to testify, but I scheduled the lunch break immediately 

following his direct examination so that Easley could prepare for cross-examination during the break. 

1060 
Harting and Gibbs also testified that Morrill's mechanics are required to bring basic 

tools for use at the crusher. Because Easley did not bring any tools to the crusher, he had to 

borrow Harting's tools. Harting testified that Easley used his tools every day and lost some of 

them. Harting testified that he had warned Easley that he must bring his own tools for use at 

the crusher if he wanted to continue working for Morrill. 

Harting testified that when Easley talked to him about employees being intoxicated at 

work, he discussed the matter with Drinkwater. Harting also testified that he could not smell 

alcohol on Drinkwater's breath and that Drinkwater denied that he had been drinking. Harting 

stated that after he told Gibbs about the incident, the February 8 meeting was set up to discuss 

alcohol abuse with crusher employees. Harting also testified that he made arrangements for a 

drug and alcohol testing program with the hospital in nearby Enumclaw, Washington, so that 

if an employee at the crusher was suspected of substance abuse, he could be sent there for 

immediate testing. 

Gibbs testified that he made the ultimate decision to terminate Easley. (Tr. 133). He 

testified that the "straw that broke the camel's back" with respect to Easley's employment was 

an event that occurred a few days before he was terminated. (132). Harting told Gibbs that 

Easley failed to properly tie off when he was removing an electric motor from the cone screen. 

Jim Lyon, an equipment operator at the crusher, testified that Easley was wearing a safety 

harness as he was attempting to remove the motor which weighed more than 100 pounds and 

was about 20 feet above the ground. (Tr. 111 ). Lines from a crane were supporting the motor 

which would then lower it to the ground once it was detached from the cone screen. 

Apparently, Easley had tied off to the motor itselfrather than to the frame of the cone screen 

so that he would have gone down with the motor, if someone else had not noticed the mistake. 

(Tr. 112). Gibbs testified that this unsafe act was not the direct cause of Easley's dismissal 

but is illustrative of his poor work performance and contributed to his decision to terminate 

him. (Tr. 132). Gibbs stated that he "structured it as a layoff' so that Easley could collect 

unemployment compensation. (Tr. 133). Gibbs testified that Easley was not really laid off for 

lack of work, but was terminated because of his poor job performance. 

II. SUMMARY OF THE PARTIES' ARGUMENTS 

A. Mr. Easley 

Easley argues that it clearly established a prima facie case of discrimination. Easley 

engaged in a protected activity when he complained about employees being under the 

influence of alcohol at work and he suffered an adverse action as a result of these complaints. 

Easley contends that MolTill knew that Easley had engaged in these protected activities; 

Morrill was hostile to these activities; there was a coincidence in time between the protected 

activities and the adverse action; and Easley was disparately treated. 

1061 
Easley further argues that-Morrill failed to meet its burden of establishing that his 

termination was not motivated by his protected activities .. Easley maintains that Morrill did 

not provide a credible explanation why it terminated him. Morrill told Easley and the state 

employment security department that he was laid off: Easley was never told by Harting or 

anyone else that his performance was not acceptable. At the hearing in this case, on the other 

hand, Morrill maintained that Easley was terminated because he was responsible for increased 

down-time in production at.the crusher. Easley contends that this post hoc rationalization 

should not be given any credibility. Easley points to the fact that under Washington law, 

unemployment benefits will not be denied for "mere incompetence, inefficiency, erroneous 

judgment, or ordinary negligence.,, (Easley Br. 5) (citation omitted). Thus, Morrill would not 

have put Easley's unemployment benefits at risk by telling the department of employment 

security that he was terminated for not properly maintaining the crusher. The only inference 

that can be drawn from Morrill' s actions is that it had no real reason to terminate Easley other 

than to retaliate for his protected activities. Merrill's explanation that the crusher was shut 

down for repairs more frequently when Easley was the mechanic cannot be verified because 

Merrill's records for the crusher are "conveniently missing." Id. Easley points to the fact that 

Morrill was aware of his MSHA complaint long before it permanently shut down the crusher 

and it could have easily preserved these records. Fletcher and Partridge credibly testified, on 

the other hand, that Easley was a good mechanic. 

Finally, Easley points to the fact that Morrill has a history of making up reasons for 

terminating employees. Its post hoc explanation of why it discharged Easley is simply pretext 

seized to cloak its discriminatory motive. The events in this case make sense only if 

discriminatory animus is added in as the motivating factor. 

B. Morril~ Asphalt 

Morrill argues that its evidence demonstrates that Easley's termination was not tainted 

by Easley's single complaint that a co-worker smelled of alcohol on the job. It maintains that 

the evidence shows that Easley's termination, which occurred three months after his 

complaint, was the result ofMorrill's continuing concerns regarding Easley's work 

performance. Thus, Morrill contends that it successfully rebutted Easley' s prima facie case. 

Morrill contends that Harting discussed Easley's work performance with him in April 

2000 and on subsequent occasions. Morrill also relies on evidence that other employees 

complained to management about Easley's work performance. Gibb made the decision to 

terminate Easley after Easley had failed to secure himself safely when he removed the motor 

from the cone screen. Morrill contends that its evidence should be credited. 

Morrill also argues that Easley did not present evidence showing that Merrill's stated 

reason for terminating Easley was pretextual. Morrill took immediate action to respond to 

Easley's complaint that a co-worker smelled of alcohol. Crusher employees were advised that 

a drug and alcohol screening program had been established at a nearby medical facility and 

.1062 
that any employee who tested positive would be terminated. Basley admitted that he did not 

smell alcohol on anyone's breath after this program was established. In addition, Easley 

admitted in his L&I interview that Morrill did not take any action against him because he 

complained about alcohol use at work. 

In his attempt to establish discriminatory animus, Easley relies on two statements made 

by Harting: Harting's admonition to Easley that he must bring his tools to work and his 

comment to Easley that "this back stabbing better stop." (Morrill Br. 7). First, all mechanics 

were required to use their own tools at work. In addition, Harting's "back stabbing" remark 

should be given little weight because it was an isolated event that occurred several months 

before Easley was terminated. 

Finally, Easley's contention that he was discharged for talking to the L&I investigator 

about Fletcher's complaint in May should not be considered. This charge is contradicted by 

Easley's own testimony. Morrill maintains that there is no evidence to support this argument 

in any event. 

III. DISCUSSION WITH FINDINGS OF FACT AND 

CONCLUSIONS OF LAW 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising 

any protected right under the Mine Act. The purpose of the protection is to encourage miners 

"to play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are 

to be encouraged to be active in matters of safety and health, they must be protected against 

any possible discrimination which they might suffer as a result of their participation." S. Rep. 

No. 181, 951

h Cong., !51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2"d Sess., Legislative History of the Federal 

Mine Safety and Health Act of 1977 at 623 (1978). "Whenever protected activity is in any 

manner a contributing factor to the retaliatory conduct, a finding of discrimination should be 

made." Id. at 624. 

A miner alleging discrimination under the Mine Act establishes a prima facie case of 

prohibited discrimination by presenting evidence sufficient to support a conclusion that he 

engaged in protected activity and suffered adverse action motivated in any part by that activity. 

Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-

800 (October 1980), rev 'don other grounds, 663 F.2d 1211 (3d Cir. 1981 ); Secretary of 

Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 

1981 ); Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine 

operator may rebut the prima facie case by showing either that no protected activity occurred 

or that the adverse action was in no part motivated by the protected activity. Pasula, 2 

FMSHRC at 2799-800. If the mine operator cannot rebut the primafacie case in this manner, 

it nevertheless may defend by proving that it was also motivated by the miner's unprotected 

activity and would have taken the adverse action for the unprotected activity alone. Id.; 

1063 
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 

639, 642 (41

h Cir. 1987). 

A. Easley eni:ai:ed in protected activity. 

Mr. Easley engaged in protected activity when he complained about alcohol use by his 

fellow employees. This complaint was safety related because he feared that these employees 

could injure him as they operated heavy equipment. To the extent that he discussed safety 

issues, Easley's statements to the L&I investigator were also protected. 

B. Easley established that Morrill's decision to dismiss him was motivated, at 

least in part, by his protected activity. 

In determining whether a mine operator's adverse action was motivated by the miner's 

protected activity, the judge must bear in mind that "direct evidence of motivation is rarely 

encountered; more typically, the only available evidence is indirect." Secretary of Labor on 

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510(November1981), rev'd on 

other grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the 

discrimination can be proven only by the use of circumstantial evidence." Id. (citation 

omitted). In Chacon, the Commission listed some of the more common circumstantial indicia 

of discriminatory intent: (1) knowledge of the protected activity; (2) hostility or animus 

towards the prote.cted activity; (3) coincidence in time between the protected activity and the 

adverse action; and (4) disparate treatment of the complainant. See also Hicks v. Cobra 

Mining, Inc., 13 FMSHRC 523, 530 (April 1991). 

There can be no dispute that Harting was aware ofEasley's complaints about Syria and 

Drinkwater. Harting was also aware that Easley was interviewed by an L&I investigator on 

May 12, 2000, although he did not know what Easley said during this interview. Because 

counsel for Morrill was present at the interview, I conclude that Morrill was aware that Easley 

told the investigator that he "figured" that Fletcher was fired for making safety complaints. 

Easley's discrimination complaint in this case includes references to this interview so it is 

withjn the scope of my jurisdiction. 

In Fletcher, I found that Morrill had demonstrated animus toward Fletcher's protected 

activities. 24 FMSHRC at 239-40. I specifically determined that "[ c ]ircumstantial evidence 

shows thatHarting did not welcome the safety activities of Thody and Fletcher." Id. I 

concluded that Fletcher was terminated from his employment because of his safety activities. 

Easley's safety activities were much more limited, however. He raised concerns with Thody 

about employees drinking during a phone call in January 2000, after he had discussed the issue 

with Harting. Fletcher had initiated this call and Easley spoke only briefly about what he had 

observed during the evening shift. Unlike Fletcher, Easley did not have a prior history of 

reporting safety deficiencies and he did not have an ongoing relationship with Thody. The 

only safety complaint that Easley ever made was about drinking in January 2002. 

1064 
I believe that Easley established that Morrill was hostile toward employees who 

reported safety problems to Mr. Thody. No animus was established with respect to employees 

discussing safety issues with Harting but, based on my findings in Fletcher, I find that Morrill 

was hostile toward employees who reported safety problems to Thody. Easley's contact with 

Thody was quite limited. 

Easley established a coincidence in time between Easley's safety complaints and his 

layoff. The four month gap between his safety complaint and the adverse action is not 

significant in this instance. In reaching this conclusion, I also take into consideration Easley's 

testimony before the L&I investigator on May 12. 

I also find that Easley submitted evidence that he was treated differently from other 

similarly situated employees. Although Morrill did not have a very extensive history of 

layoffs and dismissals, the fact that both Fletcher and Easley were singled out for termination 

establishes a prima facie case of disparate treatment in this instance. Although other 

employees complained about Syria and Drinkwater, including Partridge, only Fletcher and 

Easley discussed the issue with Thody. 

I find that Easley established a prima facie case of discrimination. The circumstantial 

evidence establishes that the termination of Easley may well have been motivated at least in 

part by his safety activities. The motivation behind a termination is subjective and direct 

evidence is rarely encountered. I note, however, that Easley's prima facie case is not nearly as 

strong as the case established by Mr. Fletcher in his discrimination case. 

C. Morrill established that it would have terminated Easley for his unprotected 

activities alone. 

As stated above, Morrill presented evidence that Easley was terminated because his 

supervisors had become dissatisfied with his work as a mechanic. In addition, Harting 

previously warned Easley that he was required to bring his own tools to work for use on the 

crusher. Finally, Morrill argues that the incident in which Easley failed to properly tie off 

when he was working 20 feet above the ground also contributed to the company's decision to 

terminate him. Morrill maintains that it told Easley that he was being laid off so that he could 

be paid unemployment compensation benefits. I credit the testimony ofMorrill's witnesses 

that Easley was not laid off but was terminated for cause. 

I credit the testimony of Harting and Gibbs that Morrill was in the process of taking 

steps to address the drinking problem following the complaints made by Fletcher, Easley, and 

Partridge. Harting did not immediately discuss the matter with Easley because, when he 

approached Drinkwater after Easley's complaint, he could not detect any evidence that 

Drinkwater had been drinking. Harting did not want to make false accusations or create 

discord among the crusher employees. Gibbs believed that he could not take action against 

Drinkwater or Syria because he did not have objective proof that they had been drinking and 

1065 
they denied that they had been drinking. (Tr. 152-53). As a consequence, Morrill set up a 

program to test employees who are suspected of drinking rather than further investigating 

these particular incidents. 

Given the series of events that occurred at the crusher, including the termination of 

Fletcher, I find that Morrill did not affirmatively establish that the termination was not 

motivated in any part by the protected activity. Harting's statement to Easley that "this back 

stabbing better stop," indicates that he was hostile to an employee going over his head to 

discuss safety issues with someone in the corporate office, such as Thody. (Tr. 46, 80, 175). 

If a mine operator cannot establish that the protected activity played no part in its 

decision to terminate the complainant, it may nevertheless defend by proving that (1) it was 

also motivated by the miner's unprotected activities, and (2) that it would have taken the 

adverse action in any event for the unprotected activities alone. I must analyze whether 

Morrill would have terminated Easley if he had not engaged in any protected activity. 

I must carefully analyze the reasons given by Morrill for the adverse action to 

determine whether such reasons are simply a pretext. In Chacon, the Commission explained 

the proper criteria for analyzing an operator's business justification for an adverse action: 

Commission judges must often analyze the merits of an 

operator's alleged business justification for the challenged 

adverse action. In appropriate cases, they may conclude that the 

justification is so weak, so implausible, or so out of line with 

normal practice that it was mere pretext seized upon to cloak the 

discriminatory motive. 

The Commission and its judges have neither the 

statutory charter not the specialized expertise to sit as a super 

grievance or arbitration board meting out industrial equity. 

Once it appears that a proffered business justification is not 

plainly incredible or implausible, a finding of pretext is 

inappropriate. We and our judges should not substitute for the 

operator's business judgement our views on "good" business 

practice or on whether a particular adverse action was "just" or 

"wise." The proper focus, pursuant to Pasula, is on whether a 

credible justification figured into the motivation and, if it did, 

whether it would have Jed to the adverse action apart from the 

miner's protected activities. If a proffered justification survives 

pretext analysis ... , then a limited examination of its 

substantiality becomes appropriate. The question, however, is 

not whether such a justification comports with a judge's or our 

sense of fairness or enlightened business practice. Rather the 

1066 
narrow statutory question is whether the reason was enough to 

have legitimately moved that operator to have disciplined the 

mmer. 

Chacon, at 3 FMSHRC 2516-17 (citations omitted). The Commission further explained its 

analysis as follows: 

(T]he reference in Chacon to a "limited" and "restrained" 

examination of an operator's business justification defense does 

not mean that such defenses should be examined superficially or 

be approved automatically once offered. Rather, we intended 

that a judge, in carefully analyzing such defenses, should not 

substitute his business judgment or a sense of "industrial 

justice" for that of the operator. As we recently explained, "Our 

function is not to pass the wisdom or fairness of such asserted 

business justifications, but rather only to determine whether they 

are credible and, if so, whether they would have motivated the 

particular operator as claimed." 

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) (citations omitted). 

I find that Morrill 's justification for dismissing Easley is credible and that Morrill 

would have taken this action even if Easley had not engaged in any protected activity. Both 

Harting and Gibbs believed that Easley was not competently maintaining the crusher. Lyon 

testified that Easley was not properly maintaining and repairing the crusher and he discussed 

Easley's poor work with Harting on several occasions. (Tr. 109-10). Lyon was especially 

critical of Easley's performance at welding. Lyon also believed that the crusher had to be shut 

down for repairs more frequently after Easley became the head mechanic. I agree with Easley 

that the disappearance of records that would have established whether the crusher had to be 

shut down more frequently may be viewed with suspicion. Nevertheless, the fact that Morrill 

permanently shut down and sold the crusher provides a rational explanation. 

Morrill' s concerns about Easley' s workmanship is corroborated by the evidence. 

Whether Easley was, in fact, not a good mechanic is not nearly as important as whether 

Morrill management believed that he was not. I find that Harting and Gibbs genuinely 

believed that Easley was not maintaining the crusher as well as a head mechanic should have 

been. Once Easley became chief mechanic, Gibbs received phone calls "virtually daily" 

reporting that the crusher was down for repairs. {Tr. 125). Gibbs testified that he sent Roger 

Dagget, a mechanic at the Wenatchee shop, to the crusher in Maple Valley on a regular basis 

because he was concerned about Easley's ability to maintain the crusher. Gibbs testified that 

Dagget told him that he was "very unimpressed with 

Mr. Easley's performance." (Tr. 157). Gibbs developed a maintenance check list for Easley 

to use specifically because of his concerns that Easley was not performing all of the required 

1067 
maintenance and was not reporting aJl of the work that needed to be done. (Tr. 129). Gibbs 

testified that the checklist was not properly completed much of the time with the result that he 

could not determine whether the maintenance was being properly performed. Unknown to 

Gibbs, Easley gave the checklists to Drinkwater to fill out. (Tr. 181 ). This fact tends to 

confirm Gibbs's concerns that Easley was not performing his work in a professional manner 

because he was not taking personal responsibility to keep Morrill management informed about 

the condition of the crusher through the maintenance check list. 

Harting discussed his work performance concerns with Easley in April. For example, 

Harting reported that on April 19, 2000, Easley left the crusher packed with mud with the 

result that the production crew had to delay starting the crusher until they could clean it out. 

(Tr. 166; Ex. R- 3). Harting testified that he warned Easley on a number of occasions that he 

needed to improve his performance, but that he "tried not to overdo it." (Tr. 167). Harting 

testified: "I tried to promote, well, you're doing a good job more than bad, because I'd like to 

get him to try a little harder and do a little better." Id. I credit the testimony of Harting that he 

attempted to counsel Easley rather than bark at him. Easley denies that these conversations 

ever took place, but I believe that he simply did not understand what Harting was trying to 

communicate. I do not credit Easley's testimony on rebuttal that he was never advised that he 

had to improve his job performance. (Tr. 182-84). 

Morrill required each mechanic to bring and use his own tools at the crusher. Morrill 

supplied specialty tools. Easley consistently failed to provide his own tools. All the other 

mechanics used their own tools, including Drinkwater. (Tr. 170). Harting believed that 

Easley owned a set of tools but that he did not want to use them. (Tr. 164). Harting testified 

that Easley was the only mechanic who consistently borrowed his tools and he believes that he 

lost a number of them. Id. Harting advised Easley that he must furnish his own tools several 

times before Easley complained about alcohol abuse. Id. Easley's refusal to bring in tools to 

use on the job contributed to Morrill's decision to terminate him. I do not credit Easley's 

rebuttal testimony on this issue. (Tr. 180-81). 

The events of May provided the immediate impetus for Easley's dismissal. As stated 

above, Easley did not properly tie off when he was attempting to remove a motor from the 

cone screen. Although this event was not the reason for his discharge, it was a contributing 

factor and it led Gibbs to the conclusion that he was not an effective mechanic and should be 

let go. Gibbs made the decision to terminate Easley. At that time, he was not aware that 

Easley had been interviewed by the L&I investigator. (Tr. 133, 139). I reject any claim that 

Easley's friendship with Fletcher contributed to his discharge. 

I find that Gibbs terminated Easley based on his perception that Easley's work 

performance and job skills were not acceptable for the job. Gibbs would have taken this 

action if Easley had not engaged in any protected activity. The fact that Gibbs labeled the 

termination as a layoff does not alter my findings. Gibbs did not have any "malice towards 

Mr. Easley'' so he wanted to make sure that he would be entitled to unemployment 

1068 
compensation. (Tr. 133). He rarely terminated anyone and was not knowledgeable of the 

requirements for obtaining unemployment compensation. 

IV. ORDER 

For the reasons set forth above, the complaint filed by Cord Easley against Morrill 

Asphalt Paving under section 105(c) of the Mine Act is DISMISSED. 

Distribution: 

Devin Poulson, Esq., Lacy & Kane, P.O. Box 7132, East Wenatchee, WA 98802-0132 

(Certified Mail) 

Lewis L. Ellsworth, Esq., Gordon, Thomas, Honeywell, P.O. Box 1157, Tacoma, WA 98401-

1157 (Certified Mail) 

RWM 

1069 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

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

Washington, D.C. 20001 

Telephone No.: (202) 434-9958 

Telecopier No.: (202) 434-9949 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

ARNOLD CRUSHED STONE, 

IN CORPORA TED, 

Respondent 

December 24, 2002 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 2002-242-M 

A.C. No. 41-03882-05515 

Mine: Arnold Crushed Stone 

ORDER DENYING MOTION TO REOPEN PENAL TY ASSESSMENT 

ORDER TO PAY 

ORDER OF DISMISSAL 

Before: Chief Judge Barbour 

On July 18, 2002, I issued an order to Arnold Crushed Stone, Inc. ("Arnold"), to submit 

more information as to why it failed to timely file a notice of contest in the above captioned case. 

Arnold was required to file the information within 20 days of the date of that order. When I 

received no response, on October 24, 2002, I issued an Order to Respondent to Show Cause, in 

which I required Arnold to either file the required information or show cause for its failure to do 

so within 20 days of the date of that order. Finally, on December 12, 2002, I issued a Second 

Order to Respondent to Show Cause, in which I required Arnold to file a response within 15 days 

of the date of that order. The record includes return receipts indicating Arnold received all three 

orders. 

Subsequently, on December 19, 2002, Arnold faxed three letters to the Commission, 

which include explanations of why it seeks to contest the citations. However, the letters fai l to 

address the issue of why the company did not timely file a notice of contest despite the fact that 

all three orders required the company to do so. Therefore, I conclude that Arnold has failed to 

establish adequate cause to reopen the penalty assessment. 

1070 
Accordingly, the request to reopen the proposed penalty assessment is DENIED, and 

Arnold is ORDERED TO PAY the proposed penalty assessment of$3,412.00 within 30 days of 

the date of this order. 

This case is DISMISSED. 

Distribution: (Certified Mail) 

-Dw/·c1f g_ / 

David 

Chief Administrat

F. Barb~

i

~ 

ve Law Judge 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Boulevard, 22"d Floor, Arlington, VA 22209-2247 

Mike Arnold, President, Arnold Crushed Stone, P.O. Box 632, Blum, TX 76627 

/mvc 

1071 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA TlON (MSHA), 

Petitioner 

v. 

December 31, 2002 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2002-61 

A.C. No. 33-01159-04192 

THE OHIO VALLEY COAL COMPANY, 

Respondent Powhatan No. 6 Mine 

DECISION 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, 

Illinois, for Petitioner; 

Michael 0. McKown, Esq., General Counsel, The Ohio Valley Coal Company, 

Pepper Pike, Ohio, for Respondent. 

Before: Judge Hodgdon 

This case is before me on a Petition for Assessment of Civil Penalty brought by the 

Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against 

The Ohio Valley Coal Company, pursuant to section 105 of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815. The petition alleges two violations of the Secretary's mandatory 

health and safety standards and seeks a penalty of $50,000.00. A hearing was held in Wheeling, 

West Virginia. For the reasons set forth below, I vacate one citation, affirm the other as modified 

and assess a penalty of $5,000.00. 

Backeround 

The parties stipulated to the facts in this case. (Jt. Ex. 1.) They are set out below in 

narrative fashion. 

The Ohio Valley Coal Co. owns and operates the Powhatan No. 6 underground coal mine 

in Belmont County, Ohio. The Ohio Valley Resources, Inc., a subsidiary of Murray Energy 

Corporation, is the parent company of The Ohio Valley Coal Co. 

At about 5:15 p.m. on April 19, 2001, the pre-shift examiners examining the 2nd Main 

North belt heard a flapping noise somewhere around the stationary take-up roller at break 62. 

The plastic mesh guarding the belt drive and take-up unit was in place and they were unable to 

1072 
detennine the cause of the flapping noise. The examiners did not report the noise in the pre-shift 

examiners book. 

Later that evening, at about 8:30 p.m., Randy Brunner and Dennis Miller, two belt 

repairmen, parked their jeep at break 61 so that they could repair the 1st Main North belt wings, 

located near break 60. During the repairs, Brunner returned to the jeep to get some parts. While 

there he observed a jeep park at break 62. He could tell by the cap light that there was only one 

person, but was unable to identify who it was. As they were finishing the job, the repairmen 

could see a cap light at the 2nd Main North belt drive take-up unit, about 180 to 200 feet away. 

°The 1st Main North belt was not shut down during the 15 minutes while the repairs were 

performed. 

Approximately one minute after completing the job and returning to their jeep, the 

repairmen heard a voice calling for help. Looking toward the spur switch, they saw the 

unidentified miner running and staggering along the track and then falling to the mine floor. 

They ran to the miner and discovered that it was Thomas Ciszewski, the belt foreman. Ciszewski 

was missing his left arm and had facial cuts. 

While Ciszewski was being tended to underground, Miller went to the accident site to try 

to find the arm. It was lying outside of the guarding in the walkway on the return side of the 2nd 

Main North belt conveyor, adjacent to the take-up cart. Miller took the arm back to where 

Ciszewski was. Ciszewski was carried to the surface where he was pronounced dead at 9:00 

p.m. 

MSHA was notified of the accident at 9:20 p.m. An initial response team arrived at the 

mine at 10:15 p.m. A 103(k) order, 1 30 U.S.C. § 813(k), was issued, preliminary information 

was collected, an investigation was begun and photographs, measurements and drawings of the 

accident scene were collected. The team found that the two guard panels adjacent to the take-up 

unit on the return side had been removed from their top hangers at one end and were hanging 

down on the mine floor, creating a two inch gap at the top and a six inch gap at the bottom 

between the panels. In this condition, the panels could be swung inward or outward. There was 

approximately 26 inches of space between the guarding and the moving belt, which normally 

1 Section 103(k) provides that: 

In the event of any accident occurring in a coal or other 

mine, an authorized representative of the Secretary, when present, 

may issue such orders as he deems appropriate to insure the safety 

of any person in the coal or other mine, and the operator of such 

mine shall obtain the approval of such representative, in 

consultation with appropriate State representatives, when feasible, 

of any plan to recover any person in such mine or to recover the 

coal or other mine or return affected areas of such mine to nonnal. 

1073 
operates at 700 feet per minute (about 8 mph). A steel jack handle, measuring l x 24 inches, was 

found partially inside the guarded area and partially in the walkway. 

An MSHA Accident Investigation team, as well as investigators from Ohio, arrived at the 

mine on April 20, to continue the investigation and conduct interviews. The investigators 

determined that a grease hose, which had gotten wrapped around the shaft of the stationary takeup roller on the track side of the belt, was making the flapping noise heard by the pre-shift 

examiners. They concluded that the accident had occurred when Ciszewski's left arm contacted 

and was caught in the pinch point between the moving belt and the stationary roller of the belt 

take-up unit. 

As a result of the investigation, two citations were issued to the company. Citation No. 

7088894 alleges a violation of section 75. l 722(a) of the Secretary's mandatory health and safety 

standards, 30 C.F.R. § 75. l 722(a), because the guarding on the belt drive had been removed from 

the hangers, allowing access to the belt and roller.2 (Jt. Ex. B.) Citation No. 7089484 charges a 

violation of section 75.1725(c), 30 C.F.R. § 75.1725(c), in that: 

(Jt. Ex. C.) 

Based on evidence revealed during the accident 

investigation, Thomas M. Ciszewski failed to comply with the 

cited regulation, when he attempted to repair or perform 

maintenance on the belt take-up unit, while the belt and take-up 

unit were still in operation and not blocked against motion. 

Thomas M. Ciszewski, foreman, was fatally injured on April 19, 

2001, while conducting assigned duties on the 2nd Main North belt 

conveyor. While attempting to assess or repair a noise problem on 

the return walkway side of the belt take-up roller, Mr. Ciszewski 

had displaced two guarding panels installed on hangers around the 

belt take-up unit so that he could position himself within the 

confines of the guarding. Evidence indicates that his left arm was 

detached from his body at the shoulder, when he became caught in 

the pinch point between the moving belt and the take-up stationary 

roller causing his death shortly thereafter. 3 

2 This citation originally alleged a violation of section 75.1722(c), 30 C.F.R. 

§ 75. l 722(c), but was modified on June 28, 2001, to cite section 75. l 722(a) and to raise the level 

of negligence from "low" to "moderate." 

3 This citation was originally issued as a 104(d)(l) order, 30 U.S.C. § 814(d)(l), but was 

modified on June 28, 2001, to a 104(a) citation, 30 U.S.C. § 814(a), as well as to substitute a new 

narrative description of the violation and to lower the level of negligence from "high" to 

"moderate." 

1074 
Findini:s of Fact and Conclusions of Law 

The company concedes that the guarding violation occurred. (Tr. 194.) With regard to 

the second citation, however, Ohio Valley claims that the Secretary has failed to prove that it 

violated the regulation. The Secretary maintains that the Respondent violated both regulations. 

However, the Secretary's position, with regard to the second citation, is not supported by a 

preponderance of the evidence. 

Citation No. 7088894 

This citation alleges a violation of section 75. l 722(a), which requires that: "Gears; 

sprockets; chains; drive, head, tail, and tak.eup pulleys; flywheels; couplings, shafts; sawblades; 

fan inlets; and similar exposed moving machine parts which may be contacted by persons, and 

which may cause injury to persons shall be guarded." The evidence that the guards, which were 

in place during the pre-shift examination, were found, immediately subsequent to Ciszewski's 

accident, to have been removed from their hangers so they could be swung open, clearly supports 

the operator's concession that this regulation was violated. 

Significant and Substantial 

The Inspector found this violation to be "significant and substantial." A "significant and 

substantial" (S&S) violation is described in Section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), 

as a violation "of such nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." A violation is properly designated S&S 

"if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission set out four criteria 

that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52 

F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 

1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies 

criteria). Evaluation of the criteria is made in terms of "continued normal mining operations." 

U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a 

particular violation is significant and substantial must be based on the particular facts 

surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 2007 (December 1987). 

In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying 

violation of a safety standard; (2) a distinct safety hazard, a measure of danger to safety, 

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

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

nature. Mathies, 6 FMSHRC at 3-4. 

1075 
Turning to these criteria, I make the following findings: (1) there was a violation of a 

safety standard, section 75. l 722(a); (2) removing the guarding from the pinch points of an 

operating belt contributed to the danger of being caught in a pinch point; (3) there was a 

reasonable likelihood that a miner would be caught in a pinch point which was not guarded, 

while the belt was running, and suffer an injury; and (4) there was a reasonable likelihood that 

such an injury would be reasonably serious in nature. Manifestly, the removal of the guarding 

was a significant contributing cause to the fatal accident, making it "significant and substantial." 

Walker Stone Co., Inc., 19 FMSHRC 48, 53 (January 1997). Accordingly, I so conclude. 

Citation No. 7089484 

This citation charges a violation of section 7 5 .1725( c ), which provides that: "Repairs or 

maintenance shall not be performed on machinery until the power is off and the machinery is 

blocked against motion, except where machinery motion is necessary to make adjustments." The 

company argues that Ciszewski was performing neither repair nor maintenance, rather he was 

performing an inspection, and that, therefore, section 75. l 725(c) is not applicable to what 

happened. (Tr. 192-93.) It is the Secretary's position that assessing what repair or maintenance 

is required is included within the scope of the regulation. (Jt. Ex. C, Tr. 99-105.) 

No one knows exactly what Ciszewski did or why he did it. It appears unlikely, however, 

that he was trying to repair the flapping noise by reaching in to remove the grease hose. 

Corporate Safety Director Jerry Taylor testified that: 

I don't believe there's no way that Mr. Ciszewski was reaching in 

to pull out that grease hose. He couldn't even see it vibrate or 

going around. I was there when we started the belt back up after 

the fatality, before the grease hose was removed. You could hear 

the noise, but you couldn't see the grease hose. That belt is 

running at 700 feet a minute and knowing Tom and the size of that 

belt, it's 54 inches wide with like one-inch thick rubber. 

There's no way that Tom Ciszewski would reach in there to 

try to pull that hose out. How he got entangled in the belt, sir, I 

have no idea, but I cannot for the life of me believe that he is -

with all the common sense and the experience that that individual 

has that he would reach in there to try to grab a hold of something 

that he couldn't see that was making noise. It just - there's no 

logic to that at all to me. 

(Tr. 155-56.) MSHA Inspector Charles Thomas, who was in charge of the investigation of the 

accident, agreed Ciszewski was probably not trying to grab the grease hose because: "I think with 

a man with that much experience and worked around belts, and there's probably been some near 

misses in his career, that it would be a foolish thing to do to grab that grease hose." (Tr. 106.) 

1076 
Since the evidence does not indicate that Ciszewski was trying to repair the belt, then he 

must have been assessing the situation to determine what repairs were needed. Consequently, 

whether his failure to turn off the power and block the belt against motion, when performing that 

function, was a violation, depends on whether merely assessing the problem is included in 

"repairs or maintenance." The Commission has held that when "the language of a regulatory 

provision is clear, the terms of the provision must be enforced as they are written unless the 

regulator clearly intended the words to have a different meaning. See, e.g. Utah Power & Light 

Co., 11 FMSHRC 1926, 1930 (October 1989) (citing Chevron US.A., Inc. v. Natural Resources 

Defense Counsel, Inc. , 467 U.S. 837, 842-43 (1984))." Walker Stone, 19 FMSHRC at 51. 

The Commission has defined the words "repair" and "maintenance," in a similarly 

worded regulation,4 as follows: 

The term "repair" means "to restore by replacing a part or putting 

together what is tom or broken: fix, mend ... to restore to a sound 

or healthy state: renew, revivify .... " Webster's Third New 

International Dictionary, Unabridged 1923 (1986). The term 

"maintenance" has been defined as "the labor of keeping 

something (as buildings or equipment) in a state ofrepair or 

efficiency: care, upkeep ... " and "(p ]roper care, repair and keeping 

in good order." Id. at 1362; A Dictionary of Mining, Mineral, and 

Related Terms 675 (1968). 

Id. In addition to these definitions, "perform" is defined as "to carry out or bring about: 

accomplish, execute . ... " Webster's Third New International Dictionary 1678 (1993). 

Reading these definitions together, it is evident that the regulation means that fixing, 

mending or keeping machinery in a state of repair shall not be carried out until the power is off 

and the machinery blocked against motion. Plainly, it connotes action and deals with the 

physical acts of fixing, mending or keeping in a state ofrepair. It follows that it does not include 

assessing what repair or maintenance is needed. Accordingly, I find that the regulation is plain 

and unambiguous on its face and that it does not apply to this situation. 

This is not to say that Inspector Thomas was incorrect in saying that the proper way for 

Ciszewski to have investigated the flapping noise was to first shut down the belt line, only that 

Ciszewski's failure to do so was not a violation of this regulation. Therefore, the citation wil1 be 

vacated. 

4 Section 56.14105, 30 C.F.R. § 56.14105, states: "Repairs or maintenance of machinery 

or equipment shall be performed only after the power is off, and the machinery or equipment 

blocked against hazardous motion." 

1077 
Civil Penalty Assessment 

The Secretary has proposed a penalty of $15,000.00 for the violation in Citation No. 

7088894. However, it is the judge's independent responsibility to determine the appropriate 

amount of penalty in accordance with the six penalty criteria set out in section 11 O(i) of the Act, 

30 U.S.C. § 820(i). Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); 

Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996). 

In connection with these criteria, the parties have stipulated that the Powhatan No. 6 mine 

extracted 4,619,247 tons of coal from February 1, 2001, to February 1, 2002, which makes it a 

large mine, and that Murray Energy extracted 17,647, 608 tons of coal during the same period, 

which makes it a large operator. They have also stipulated that payment of the proposed penalty 

will not affect the Respondent's ability to remain in business. In addition, I find that the 

company demonstrated good faith in abating the violation in a timely manner. 

The parties have also stipulated that the company had 848 violations in the two years 

preceding the violation. Inspector Thomas testified that the operator had a higher than average 

history of violations. (Tr. 84.) Based on his testimony and the Assessed Violation History 

Report, (Govt. Ex. l ), I find that Ohio Valley has a worse than average history of violations. 

I find the gravity of this violation to be very serious. No more need be said than that a 

death occurred. 

Inspector Thomas determined that this violation was a result of "moderate" negligence on 

the part of the company. The company argues that Ciszewski's negligence should not be 

imputed to it based on the so-called Nacco defense. The Commission has summarized the 

imputation of negligence and the Nacco defense as follows: 

It is well established that the negligent actions of an 

operator's foremen, supervisors, and managers may be imputed to 

the operator in determining the amount of a civil penalty. See, e.g., 

Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (August 

1982). In Nacco Mining Co., 3 FMSHRC 848 (April 1981), the 

Commission recognized a narrow and limited exception to this 

principle. The Commission held that the negligent misconduct of a 

supervisor will not be imputed to an operator if: (1) the operator 

has taken reasonable steps to avoid the particular class of accident 

involved in the violation; and (2) the supervisor's erring conduct 

was unforeseeable and exposed only himself to risk. 3 FMSHRC 

at 850. The Commission emphasized, however, that even a 

supervisory agent's unexpected, unpredictable misconduct may 

result in a negligence finding where his lack of care exposed others 

to risk or harm or the operator was otherwise blameworthy in hire, 

1078 
training, general safety procedures, or the accident or dangerous 

condition in question. 3 FMSHRC at 851. 

Wilmot Mining Co., 9 FMSHRC 684, 687 (April 1987). 

Here the second part of the test is clearly met. Ciszewski's conduct was unforeseeable 

and he exposed only himself to risk. 

Attempting to show that the operator had not taken reasonable steps to avoid this 

particular class of accident, the Secretary offered the testimony of Randy Brunner, a rank-and-file 

miner. He claimed that other than his fellow belt repairman, Dennis Miller, no one trained him 

to do belt repair. (Tr. 27-28.) When asked if he had ever done belt repair work without shutting 

the belt down, he replied: "Yeah, we've dropped hot rollers out. I have. And other minor stuff 

on it. We just shut the switches off to cut flappers off and drop rollers to the remote switches. 

We never tagged them out and locked them out, I never have." (Tr. 29.) He also testified that he 

had removed a guard from a belt to "look at splices" while the belt was running. (Tr. 30.) 

When asked if there were safety procedures the belt repairmen were supposed to follow, 

Brunner said: "If it was splices and stuff like that, they're supposed to lock them out. You're 

supposed to have your own lock. They always had one boss or somebody go lock them out, you 

know." (Tr. 32-33.) He later stated that he guessed there were safety procedures, but he was not 

aware of them. (Tr. 39) When asked if anyone had ever discussed safety procedures with him, 

he stated: "No, not to me. Not that I know of. I mean, I'm not saying they didn't because I'm 

not 100 percent sure." (Tr. 39.) Finally, he admitted that he had received new miner training and 

annual refresher training. (Tr. 40.) 

To rebut this evidence, the company offered the testimony of Jerry Taylor and Roy 

Heidelbach, mine superintendent. Taylor described the training offered at the mine as follows: 

In their initial training when they're brought on board, 

they're explained all the hazards of working around conveyor belts, 

around the drives and so on, and about maintaining the guards in 

place and that the guards have to be - the belt has to be deenergized before the guards can be removed. They're explained all 

the things, the remote switches, how they can turn the belts off and 

on temporarily. And that they're not to rely on remote switches as 

a means, excuse me, to de-energize the belt. We want them to go 

to the breaker and de-energize it. 

They're explained the procedures for removing structures 

on the longwall, if they work on the lo[n]gwall tailpiece. It has a 

different set of guidelines than the other ones do. And also not 

only on belts, they're also given the procedures on de-energizing 

1079 
any type of equipment before they work on it doing repairs and 

maintenance to the equipment. 

{Tr. 134-35.) He also testified that safety meetings were held "biweekly, sometimes more often" 

y the mine safety director or a foreman. {Tr. 136.) Finally, he testified that "awareness 

meetings" were periodically held for the entire workforce on a shift and that safety was covered 

at those meetings. (Tr. 137.). 

Heidelbach testified concerning training that: 

Well, there's a wide variety of subjects that are covered. 

There are several different types of training. There's annual 

retraining, which all employees have eight hours annually. There's 

also task training, which involves any time an employee is working 

on a new task, the supervisor or an experienced employee in that 

task may train him as to the hazards and the things to look for on 

the job. And we also have regular safety meetings that also discuss 

hazards and the proper work procedures. 

(Tr. 165.) He also testified that miners had been disciplined for failing to follow safety 

procedures. (Tr. 166-67.) 

I find that the operator was neither blameworthy in its hiring, training, and general safety 

procedures, nor was it answerable with regards to the accident or dangerous condition in 

question. Ciszewski had close to 20 years experience in underground coal mines and was a very 

experienced belt foreman. (Tr. 161.) There was no reason for the company to expect him to 

remove the guarding while the belt was running and place himself in a position where he could 

fall into the pinch point.5 Further, the testimony of Taylor and Heidelbach is entitled to more 

weight concerning the general safety procedures at the mine, than the inconsistent testimony of a 

single rank-and-file miner, who was not "100 percent sure."6 Finally, while the company has a 

worse than average history of violations, it does not appear that they had an inordinate amount of 

guarding violations. 

Consequently, I find that Ciszeski's conduct in removing the guarding was unforeseeable 

and only he was exposed to risk and that the operator had taken reasonable steps to avoid the type 

of accident involved in the violation. The citation will be modified to show that the operator was 

not negligent in the commission of this violation. 

5 I find from the evidence that this is the most likely explanation of what happened. 

6 The Secretary subpoenaed another miner, Dennis Miller, who was present at the 

hearing, but elected not to call him. 

1080 
Taking all of the penalty criteria into consideration, I conclude that a $5,000.00 penalty is 

appropriate for Citation No. 7088894. 

Order 

Accordingly, Citation No. 7089484 is VACATED and Citation No.7088894 is 

MODIFIED by reducing the level of negligence from "moderate" to "none" and is AFFIRMED 

as modified. The Ohio Valley Coal Company is ORDERED TO PAY a civil penalty of 

$5,000.00 within 30 days of the date of this decision. 

~~~ Administrative Law Judge 

Distribution: (Certified Mail) 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 81

h 

Floor, Chicago, IL 60604 

Michael 0. McKown, Esq., General Counsel, The Ohio Valley Coal Company, 29325 Chagrin 

Blvd., Suite 300, Pepper Pike, OH 44122 

/hs 

1081 


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Federal Mine Safety & Health Review Commission 

Calendar Year 2002 Index 

This index of decisions and orders issued during the calendar year 2002 is divided into two 

parts: decisions and orders issued by the Commission, followed by those issued by the 

Administrative Law Judges (ALJ's). The listings include titles, docket numbers, date of 

issuance, and page numbers in the Federal Mine Safety and Health Review Commission 

Decisions Bluebook (FMSHRC), volume 24. Where the Secretary of Labor, Mine Safety and 

Health Administration is a party, listings are under the name of the opposing party. 

Commission Decisions and Orders 

Case Name Docket Number Date Page 

Number 

FMSHRC, 

Vol. 24 

American Coal Co. LAKE 2000-111-R 06-26-2002 Pg.542 

Applegate Shale WEST 2002-367-M 05-21-2002 Pg. 495 

Arnold Crushed Stone CENT 2002-242-M 07-10-2002 Pg.635 

Asarco, Inc. WEST 2002-199-M 03-20-2002 Pg. 257 

Aurora Materials, Inc. CENT 2002-223-M 07-10-2002 Pg.631 

B & B Crushing WEST 2002-109-M 05-10-2002 Pg. 453 

Cactus Canyon Quarries of Texas, CENT 2001-379-M 03-28-2002 Pg. 262 

Inc. 

Cactus Canyon Quarries of Texas, CENT 2001 -363-M 03-28-2002 Pg.266 

Inc. 

Cascade Sand & Gravel, Inc. WEST 2002-20-M 10-17-2002 Pg. 12 

Catenary Coal Co. WEY A 2002-47 04-30-2002 Pg.334 

CDG Materials, Inc. WEST 2002-404-M 07-10-2002 Pg.642 

CDG Materials, Inc. WEST 2002-299-M 05-07-2002 Pg.419 

1 
Case Name Docket Number Date Page 

Number 

FMSHRC, 

Vol. 24 

Cholla Ready Mix, Inc. WEST 2002-276-M 05-07-2002 Pg.432 

Cranesville Aggregates Co. YORK 2002-52-M 07-22-2002 Pg.645 

Disciplinary Proceeding D 2000-1 01-31-2002 Pg.28 

Disciplinary Proceeding D 2001-1 05-14-2002 Pg. 465 

Douglas R. Rushford Trucking YORK 1999-39-M 07-22-2002 Pg.648 

Freeman United Coal Co. LAKE 2000-102-R 06-24-2002 Pg. 613 

Garcia (Sec'y of Labor on behalf WEST 2001-14-DM 04-30-2002 Pg.350 

of) v. Colorado Lava, Inc. 

Harrison v. Sidco Minerals CENT 2000-88-DM 05-10-2002 Pg.461 

Harvey v. Mingo Logan Coal Co. WEVA 2001-38-D 07-26-2002 Pg.699 

Highlands Mining & Processing KENT 2002-110 07-24-2002 Pg. 685 

Co. 

Hocker Construction WEST 2002-259-M 05-16-2002 Pg.488 

Holnam Texas Ltd. CENT 2002-74-M 05-07-2002 Pg.436 

J. P. Donmoyer, Inc. PENN 2002-164-M 07-23-2002 Pg.665 

John Richards Construction WEST 2000-168-M 07-23-2002 Pg.655 

Kerr Enterprises, Inc. CENT 2002-24-M 01-04-2002 Pg. 1 

Kilauea Crusher, Inc. WEST 2002-58-M 04-30-2002 Pg.342 

Leeco, Inc. KENT 2002-38 04-30-2002 Pg.338 

Lodestar Energy, Inc. KENT 2000-79 07-25-2002 Pg.689 

Mission Valley Rock Co. WEST 2001-618-M 04-30-2002 Pg.330 

Original Sixteen to One Mine, Inc. WEST 2000-63-M 01-30-2002 Pg.26 

Original Sixteen to One Mine, Inc. WEST 2000-63-M 02-27-2002 Pg. 148 

2 
Case Name Docket Number Date Page 

Number 

FMSHRC, 

Vol. 24 

Pasco Gravel Co. WEST 2001-585-M 10-17-2002 Pg. 16 

Pea Ridge Iron Ore Co. CENT 2002-159-M 05-07-2002 Pg. 423 

Pea Ridge Iron Ore Co. CENT 2002-23-M 01-17-2002 Pg. 4 

Phelps Dodge Sierrita, Inc. WEST 2002-429-M 07-23-2002 Pg.661 

Pioneer Aggregates, Inc. PENN 2002-142 07-10-2002 Pg.639 

Rogers Group, Inc. CENT 2001-316-M 03-20-2002 Pg. 253 

Rosebud Mining Co. PENN 2002-50 05-10-2002 Pg. 457 

Southdown, Inc. PENN 2002-22-M 01-17-2002 Pg. 8 

Stanley (employed by Mine VA 2001-42 02-25-2002 Pg. 144 

Management Consultants, Inc.) 

Texas Mining, L.P. CENT 2002-236-M 06-24-2002 Pg.520 

Tide Creek Rock, Inc. WEST 2002-202-M 05-07-2002 Pg. 428 

Trico Recycling, Inc. CENT 2002-250-M 06-26-2002 Pg. 560 

U.S. Quarried Slate Products, Inc. YORK 2002-4-M 01-23-2002 Pg.21 

United Metro Materials WEST 2000-35-RM 02-19-2002 Pg. 140 

Vermont Unfading Green Slate Co. YORK 2000-65-M 05-09-2002 Pg.439 

Virginia Slate Co. VA 1999-8-M 06-19-2002 Pg.507 

Watkins Engineers & WEST 1999-280-M 07-23-2002 Pg.669 

Constructors 

Webster Scale, Inc. CENT 2002-192-M 05-12-2002 Pg.491 

Wedron Silica LAKE 2002-18-M 04-30-2002 Pg.346 

Woodruff v. Hollinger WEST 2002-163-D 04-29-2002 Pg.327 

Construction 

3 
ALJ Decisions and Orders 

Case Name Docket Number Date Page 

Number 

FMSHRC, 

Vol. 24 

Adams v. Calvin Lenig Coal PENN 2002-37-D 11-15-2002 Pg. 973 

Preparation and Sales, Inc. 

Aggregate Industries, West WEST 2002-317-RM 09-04-2002 Pg. 903 

Central Region 

Arnold Crushed Stone, Inc. CENT 2002-242-M 12-24-2002 Pg. 1070 

Averette employed by Jim Walter SE 2002-86-M 10-31-2002 Pg.937 

Resources, Inc. 

Bailey Quarries, Inc. CENT 2002-108-M 09-16-2002 Pg. 882 

Becon Construction, Inc. WEST 2001-204-RM 09-09-2002 Pg.908 

Begley (Sec'y of Labor on behalf KENT 2002-195-D 10-23-2002 Pg.955 

of) v. Coastal Coal Co. 

Bennett (Sec'y of Labor on behalf WEST 2002-292-DM 04-16-2002 Pg. 381 

of) v. Smasal Aggregates 

Bernardyn (Sec'y of Labor on PENN 99-158-D 03-04-2002 Pg.281 

behalf of) v. Reading Anthracite 

Co. 

Bernard yo (Sec'y of Labor on PENN 99-158-D 02-01-2002 Pg. 151 

behalf of) v. Reading Anthracite ~ 

Co. 

BGS Construction, Inc. WEY A 2002-41 05-03-2002 Pg. 787 

BGS Construction, Inc. WEY A 2002-41 06-20-2002 Pg. 791 

4 
ALJ Decisions and Orders 

Case Name Docket Number Date Page 

Number 

FMSHRC, 

Vol. 24 

Bilbrough Marble Division/Texan CENT 2001-394-M 03-15-2002 Pg.285 

Architectural Aggregate 

Black Beauty Coal Co. LAKE 2002-20 08-22-2002 Pg.866 

Bundy (Sec'y of Labor on Behalf WEST 2001-608-DM 08-22-2002 Pg. 822 

of) v. Kennecott Utah Copper 

Corp. 

Cactus Canyon Quarries of Texas, CENT 2001-279-M 01-30-2002 Pg. 133 

Inc. 

Cactus Canyon Quarries of Texas, CENT 2001-363-M 02-01-2002 Pg.247 

Inc. 

Cactus Canyon Quarries of Texas, CENT 2002-80-M 06-06-2002 Pg.599 

Inc. 

Cactus Canyon Quarries of Texas, CENT 2002-379-M 06-17-2002 Pg. 604 

Inc. 

Cactus Canyon Quarries of Texas, CENT 2002-124-M 06-1 7-2002 Pg.609 

Inc. 

Cannelton Industries, Inc. WEVA 2000-1 13 08-23-2002 Pg.840 

Cannelton Industries, Inc. WEVA 2002-111-R 07-10-2002 Pg. 707 

Caudill (Sec'y of Labor on behalf KENT 2002-114-D 05-29-2002 Pg.589 

of) v. Leeco, Inc. 

Caudill (Sec'y of Labor on behalf KENT 2002-114-D 10-21-2002 Pg. 948 

of) v. Leeco, Inc. 

CDK Contracting Co. WEST 2001-420-RM 04-18-2002 Pg.413 

Chino Mines Co. CENT 99-20-M 02-20-2002 Pg. 189 

Consolidation Coal Co. WEVA 2002-21 02-06-2002 Pg.249 

5 
ALJ Decisions and Orders 

Case Name Docket Number Date Page 

Number 

FMSHRC, 

Vol. 24 

Cougar Coal Co. KENT 2000-133 02-14-2002 Pg. 176 

Dakota Cement CENT 2001-218-M 07-31-2002 Pg. 782 

Darwin Stratton & Son Inc. WEST 2002-146-M 08-15-2002 Pg. 817 

Darwin Stratton & Son, Inc. WEST 2001-528-M 01-30-2002 Pg. 137 

Darwin Stratton & Son, Inc. WEST 2001-528-M 04-29-2002 Pg.403 

Day Mining, Inc. WEY A 2001-66 09-17-2002 Pg. 895 

Dye v. Mineral Recovery WEST 2002-408-DM 09-06-2002 Pg.906 

Specialists 

Dykoffv. U.S. Borax, Inc. WEST 2001-409-DM 03-27-2002 Pg. 300 

Easley v. Morrill Asphalt Paving WEST 2001-133-DM 07-26-2002 Pg. 801 

Easley v. Morrill Asphalt Paving WEST 2001-133-DM 12-23-2002 Pg. 1058 

Fletcher v. Morrill Asphalt Paving WEST 2001-150-DM 04-22-2002 Pg.401 

Fletcher v. Morrill Asphalt Paving WEST 2001-150-DM 02-22-2002 Pg.232 

Freeman United Coal Mining Co. LAKE 2000-102-R 07-05-2002 Pg. 705 

Georges Colliers, Inc. EAJ 2002-2 06-14-2002 Pg.572 

Georges Colliers, Inc. CENT 2000-157 01-03-2002 Pg. 51 

Griffitts (Sec'y of Labor on behalf VA 2002-32-D 04-12-2002 Pg. 376 

of) v. Coalfield Services, Inc, 

Hamilton Pipeline, Inc. CENT 2001-330-M 10-17-2002 Pg. 915 

Hanson Permanente Cement WEST 2002-370-RM 10-31-2002 Pg.941 

Harvey v. Mingo Logan Coal Co. WEVA 2001-28-D 01-08-2002 Pg. 71 

Hernandez v. Asarco, Inc. WEST 2001-308-DM 03-20-2002 Pg.293 

6 
ALJ Decisions and Orders 

Case Name Docket Number Date Page 

Number 

FMSHRC, 

Vol. 24 

Higman Sand & Gravel, Inc. CENT 2000-208-M 01-17-2002 Pg. 87 

Jordan Construction KENT 2002-416 11-22-2002 Pg.999 

Kinder Morgan Operation L.P. KENT 2003-85-R 12-18-2002 Pg. 1055 

Knaak Sand CENT 2002-127-M 09-11-2002 Pg. 910 

Knaak Sand CENT 2002-127-M 11-12-2002 Pg.964 

Kunkel (Sec'y of Labor on behalf KENT 2002-225-D 05-23-2002 Pg.500 

of) v. Silver Cloud Coal, Inc. 

Lattimore Materials Co. CENT 2002-171-M 09-11-2002 Pg. 879 

Left Fork Mining, Inc. KENT 2001-129 04-09-2002 Pg.365 

Lexicon CENT 2001-370-M 11-26-2002 Pg. 1014 

Lodestar Energy, Inc. KENT 2001-53 08-07-2002 Pg. 803 

Lodestar Energy, Inc. KENT 2001-200 03-08-2002 Pg. 320 

Lowe (Sec'y of Labor on behalf of) VA 2001-24-D 04-19-2002 Pg.392 

v. Island Creek Coal Co. 

McClernan (Sec'y of Labor on LAKE 2001-58-DM 11 -27-2002 Pg. 1032 

behalf of) v. Lakehead 

Constructors, Inc. 

McGill (Sec'y of Labor on behalf SE 2000-39-D 10-16-2002 Pg. 913 

of) v. U.S. Steel Mining Co. 

Mine Management Consultants, VA 2001-37 06-11-2002 Pg. 563 

Inc. 

Mining Property Specialists, Inc. VA 2001-20 02-05-2002 Pg. 156 

Nelson Brothers Quarries CENT 2002-65-M 11-19-2002 Pg.980 

Nelson Brothers Quarries CENT 2001 -284-M 02-14-2002 Pg. 167 

7 
ALJ Decisions and Orders 

Case Name Docket Number Date Page 

Number 

FMSHRC, 

Vol. 24 

Ohio Valley Coal Co. LAKE 2002-61 12-31-2002 Pg. 1072 

Ohio County Coal Co. KENT 2001-428 05-28-2002 Pg.502 

Olson v. Wyoming Fuels WEST 2002-304-D 07-03-2002 Pg.794 

Original Sixteen to One Mine, Inc. WEST 2002-224-M 12-03-2002 Pg. 1053 

Original Sixteen to One Mine, Inc. WEST 2001-61-M 09-04-2002 Pg. 869 

Owens (Sec'y of Labor on behalf SE 2002-114-D 07-26-2002 Pg. 768 

of) v. Drummond Co. 

Paiute Aggregates, Inc. WEST 2002-269-M 10-18-2002 Pg.943 

Paiute Aggregates, Inc. WEST 2002-441-M 10-22-2002 Pg.950 

Pero v. Cyprus Plateau Mining WEST 97-154-D 03-15-2002 Pg. 291 

Corp. 

Perry County Coal Corp. KENT 2001-298 03-11:-2002 Pg. 323 

Peterson v. Sunshine Precious WEST 1998-307-DM 08-09-2002 Pg. 810 

Metals, Inc. 

Pittsburg & Midway Coal Mining CENT 2002-39 03-13-2002 Pg.325 

Co. 

Polly v. Powell Mountain Coal Co. KENT 2002-253-D 08-13-2002 Pg.864 

Pronghorn Drilling Co. EAJ 2001-4 03-04-2002 Pg.279 

Pronghorn Drilling Co. EAJ 2001-4 01-15-2002 Pg. 82 

Pronghorn Drilling Co. EAJ 2001-4 02-14-2002· Pg.252 

Pronghorn Drilling Co. EAJ 2001-4 03-01-2002 Pg.276 

Read Sand & Gravel YORK 2001-65-M 04-16-2002 Pg.389 

San Juan Coal Co. CENT 2001-102 02-13-2002 Pg. 165 

8 
ALJ Decisions and Orders 

Case Name Docket Number Date Page 

Number 

FMSHRC, 

Vol. 24 

Sansoucie (Sec'y of Labor on CENT 2001-228-DM 06-28-2002 Pg. 579 

behalf ot) v. Vessell Mineral 

Products 

Shaffer v. Gray Quarries, Inc. LAKE 2002-47-DM 07-24-2002 Pg. 715 

Simp-A-Lex KENT 2001-297 01-04-2002 Pg.69 

Sullivan (Sec'y of Labor on behalf CENT 2003-43-DM 11-25-2002 Pg. 1006 

ot) v. 3M Co. 

Summit Anthracite, Inc. PENN 1999-213 07-25-2002 Pg. 720 

Sykes v. Har-Lee Coal Co. VA 2002-33-D 07-17-2002 Pg. 713 

Tide Creek Rock, Inc. WEST 2000-368-M 02-21-2002 Pg. 201 

Tilden Mining Co. LAKE 2002-94-RM 01-03-2002 Pg. 53 

U.S. Quarries Slate Products, Inc. YORK 2001-53-M 01-22-2002 Pg. 124 

UMWA, Local 2368 v. Jim Walter SE 2002-22-C 07-05-2002 Pg. 797 

Resources, Inc. 

UMW A, Local 2368 v. Jim Walter SE 2002-22-C 10-18-2002 Pg.931 

Resources, Inc. 

UMW A, Local 1248 v. Maple PENN 2002-24-C 01-15-2002 Pg. 131 

Creek Mining 

Vermont Unfading Green Slate Co. YORK 2000-65-M 09-16-2002 Pg. 890 

Western Industrial, Inc. WEST 2001-473-M 03-01-2002 Pg.269 

Williams Brothers Coal Co. KENT 2001-136 01-17-2002 Pg. 110 

Womack v. Graymont Western WEST 2002-138-DM 11-21-2002 Pg. 1049 

U.S. 

Woodruff v. Hollinger WEST 2002-163-D 11-05-2002 Pg.957 

Construction, Inc. 

9 
ALJ Decisions and Orders 

10