APRIL 1999 

COMMISSION DECISION AND ORDERS 

04-15-99 River Point Processing Inc. 

04-22-99 Eastern Ridge Lime Company, LP 

04-26-99 Sproule Construction Company, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-08-99 Northwestern Resources 

04-19-99 K. R. Wilson Contracting, Inc. 

04-29-99 Georgia Marble Company (Basins Inc.) 

ADMINISTRATIVE LAW nJDGE ORDERS 

04-07-99 Patterson Materials Corporation 

04-26-99 Bowen Industries Incorporated 

04-29-99 Rayne Energy Incorporated 

i 

WEVA99-65 

VA 96-21-M 

LAKE 99-24-M 

CENT98-153 

CENT 98-159-M 

WEST 99-89-M 

YORK 99-30-M 

CENT 98-268-M 

PENN 99-77 

Pg. 413 

Pg.416 

Pg. 426 

Pg. 431 

Pg. 448 

Pg.456 

Pg. 463 

Pg.468 

Pg. 472 

APRIL 1999 

Review was granted in the following cases during the month of April: 

Rawl Sales & Processing Company v. Secretary of Labor, MSHA, Docket No. WEVA 99-13-R. 

(Judge Feldman, February 25, 1999) 

Secretary of Labor, MSHA v. Cantera Green, Docket No. SE 98-141-M. (Judge Melick, 

March 9, 1999) 

Review was Denied in the followin~ case dyring the month of April: 

Gregory Bennett v. Newmont Gold Company, Docket No. WEST 98-115-D. (Request for 

Reconsideration of April 6, 1999 Commission Notice) 

ii 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 15, 1999 

Docket No. WEV A 99-65 

RIVER POINT PROCESSING INC. 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (1994) ("Mine Act"). On March 5, 1999, the Commission received from River 

Point Processing Inc. ("River Point") a request to reopen a penalty assessment that had become a 

final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the 

Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it 

wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed 

penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

In its motion, River Point states that its facility was shut down at the time the assessment 

issued. The operator also requests that the $55.00 proposed penalty assessment be waived due to 

the operator's dissolution in bankruptcy court. 

On March 26, 1999, the Commission received a memorandum from Tamara Nelson, 

Chief of the Compliance Group with the Department of Labor's Civil Penalty Compliance 

Office. In the memorandum Ms. Nelson states that, because River Point Processing Inc. was sold 

on August 20, 1998, and is no longer in the mining business, the case is being closed as 

uncollectible. 

413 
Based on the foregoing, we deny River Point's moti6n to reopen as moot. See generally 

Phelps Dodge Morenci Inc., 17 FMSHRC 1525 (Sept. 1995) (granting motion to withdraw 

Motion for Relief from Final Order where proposed penalty assessment was rescinded). 

Accordingly, this proceeding is dismissed. 

Marc Lincoln Marks, Commissioner 

/(.~ r. rt,T 

Theodore F. Verheggen, Commissione 

414 
Distribution 

Gary L. Tincher, Safety Consultant 

Tincher Safety, Inc. 

for River Point Processing 

P.O. Box 38 

Cabin Creek WV 25035 

Tamara Nelson 

Office of Civil Penalty Compliance 

MSHA U.S. Department of Labor 

4015 Wilson Boulevard, 9•h Floor 

Arlington, VA 22203 

Sheila Cronan, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

415 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Apri I 22, 1999 

Docket No. VA 96-2 l -M 

EASTERN RIDGE LIME COMPANY, L.P. 

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

DECISION 

BY THE COMMISSION: 

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

l 977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involves citations issued by the 

Department of Labor's Mine Safety and Health Administration ("MSHA") against Eastern Ridge 

Lime Company, L.P. ("Eastern Ridge"). Administrative Law Judge Avram Weisberger 

concluded that Eastern Ridge violated 30 C.F.R. §§ 57.33601 and 57.3201 2 and that both 

violations were significant and substantial ("S&S'') and resulted from Eastern Ridge's 

unwarrantable failure. 19 FMSHRC 398 (Feb. 1997) (ALJ). The judge assessed penalties 

totaling $85,000. Id. at 407, 409, 410. The Commission denied Eastern Ridge's petition for 

review. Eastern Ridge. appealed to the United States Court of Appeals for the Fourth Circuit, 

which affirmed in part and vacated and remanded in part the Commission's decision. Eastern 

Ridge lime, L.P. v. FMSHRC, 141F.3d1158 (table), 1998WL169213 (4th Cir.1998). 

1 Section 57.3360 provides in pertinent part: "Ground support shall be used where 

ground conditions, or mining experience in similar ground conditions in the mine, indicate that it 

is necessary." 

2 Section 57.3201 states: "Scaling shall be performed from a location which will not 

expose persons to injury from falling material, or other protection from falling material shall be 

provided." 

416 
By order dated JuJy 2, 1998, the Commission remanded the case to the administrative law 

judge for further consideration consistent with the court's decision. 20 FMSHRC 1333 (Dec. 

1998). On remand, the judge reiterated his initial findings and again imposed penalties totaling 

$85,000. 20 FMSHRC 758, 758 (July 1998) (ALJ). Eastern Ridge appealed, and the 

Commission directed review. For the reasons that follow, we vacate the judge's decision and 

remand for further consideration. 

I. 

Factual and Procedural Background 

A. Initial Proceedings before the Commission 

Eastern Ridge operates an underground limestone mine in Ripplemead, Virginia. 19 

FMSHRC at 398. Limestone is extracted by the random room and pillar mining method. Id. at 

399. By this process, rooms are created by blasting and removing the loose rock. 1998 WL 

169213 at 1. Pillars are Jeft in the rooms to provide roof support. Id. The tunnels and rooms are 

not set out in grid fashion because geological conditions a( the mine are inconsistent. Tr. 1168. 

Beginning in 1993, Eastern Ridge made several attempts to mine in the 200 entry section 

that had to be stopped because of poor roof conditions. 19 FMSHRC at 399-400. In December 

1993, Eastern Ridge attempted to advance the 204E section. Id. at 399. However, mining in 

section 204E ceased after scalers working in the section3 concluded that the roof was unsound 

and told Eastern Ridge management that it was unsafe to work in the section. Id. at 399-400, 

404. . 

In May or June 1994, Eastern Ridge returned to the 204E section. Id. at 400. Scalers 

observed that the top of the heading was checkered with wide mud seams. Scaling could not be 

completed due to unsafe ground conditions. Id. at 400. Mine management was advised that the 

top was leaking mud, and the section was condemned. Id. at 404. After the 204E section was 

condemned, in late June or early July 1994, Eastern Ridge began development of the 11 S section, 

which was to the right of the 204E heading. Id. at 400. Eastern Ridge supervisor Barry Snider 

marked the opening for the 1 IS heading on the right rib of the 204E section, about 15 feet away 

from its face. Id. at 404. The right rib of the 204E section was to form the left rib of the new 

llS section. Tr. 219, 224-25. 

3 Scaling is a process of removing loose rock from roof or walls, usually with a long 

metal bar, which also allows the scaler to determine whether the roof is sound. 1998 WL 169213 

at 1. 

417 
From July 21 through July 24, 1994, several miners observed seams in the 204E/l 1S 

sections. 19 FMSHRC at 401-02. On July 25, driller Milton Conley showed Snider the seam 

encircling the 204E section and told him that there was no support for the roof. Id at 402. After 

the conversation, Snider instructed driller Jeffrey Morgan to bring the jumbo drill to scale down 

loose rock in the roof near the intersection of the right rib of section 204E and the left rib of 

section I IS. Id. Morgan extended the boom of the drill 40 feet out in front of the cab in which 

he was sitting. Id. Snider was standing approximately 15 to 20 feet to the left and in front of the 

cab. Id. Morgan placed the drill bit on the rock and allowed the drill to vibrate or "rattle" the 

rock in an effort to scale it down. As Morgan began to do so, the entire roof in the 204E and 11 S 

sections collapsed burying Snider and partially crushing the drill cab in which Morgan was 

sitting. Tr. 989-90. As a result of the roof collapse, Snider was killed and Morgan was seriously 

injured. 19 FMSHRC at 402 

Following an investigation, MSHA issued citations charging Eastern Ridge with violating 

section 57.3360, which requires ground support when ground conditions indicate that it is 

necessary, and section 57.3201, which requires that scaling shall be performed from a location 

which will not expose persons to injury from falling materials. 1998 WL 169213 at 1. Both 

violations were designated S&S, and were attributed to Eastern Ridge's unwarrantable failure. 

Gov't Exs. 7-8. 

Eastern Ridge contested the proposed penalties, and a hearing was held before an 

administrative law judge. The judge concluded that Eastern Ridge violated section 57.3360 

when it failed to install ground support, notwithstanding repeated warnings concerning 

conditions in the 204E/l 1S sections. 19 FMSHRC at 403-05. The judge credited the opinion of 

MSHA's expert witness, Joseph Cybulski, that conditions in the 204E/l IS area prior to the fatal 

roof fall indicated that ground support was necessary. Id at 404-05. In discrediting Eastern 

Ridge's expert, Jack Parker, who testified that ground support was not necessary, the judge noted 

that Parker's theory of the cause of the roof fall was not the issue before him; rather, the judge 

found that Parker did not dispute miner testimony concerning the conditions in sections 204E and 

11 S, noting in particular that scaler/blaster Marvin Wright opined that the pillar between the 

section 204E face and the 1 lS left rib was too small. Id Therefore, the judge concluded that the 

record established that ground support was necessary. Id He also affirmed the unwarrantable 

failure designation of the citation in light of the repeated concerns that miners had expressed to 

Snider. Id at 407. In addressing the designation of the violation as S&S, the judge noted that 

Eastern Ridge's failure to provide ground support contributed to the hazard ofrooffall. Id at 

406. The j udge further concluded that, "considering the fact that a roof fall did occur in the area 

causing a fatality and seriously injuring another miner," the third and fourth elements of Mathies 

Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), had been established. Id. at 406-07. In assessing a 

penalty, the judge noted that the gravity of the violation was high, as it contributed to a fatal roof 

fall. Further, he found the level of Eastern Ridge's negligence was aggravated. Id at 407. 

Taldng into account remaining section 11 O(i) penalty criteria, the judge.imposed a-$50,000 

penalty. Id. 

418 
With regard to the citation charging a violation of section 57.3201, the judge relied on 

record evidence establishing that, prior to the accident, conditions indicated the need for ground 

support in the 240£/11 S area, and that Morgan was exposed to the hazard of a roof fall even 

though he was located 40 feet from the rock that he was rattling. Id at 408. Further, the judge 

held that the cab in which Morgan was sitting did not provide protection from the roof fall. Id 

The judge also concluded that the violation occurred as a result of the operator's unwarrantable 

failure because management was aware that scaling was being performed in an area with no roof 

support; indeed, just prior to the roof fall a miner had pointed out the circular seam in the roof to 

Snider. Id Finally, in addressing the S&S designation, the judge relied on the ground conditions 

indicating the need for support and that scaling was being performed in an area that had no 

ground support. Id Noting that Eastern Ridge's negligence was aggravated and "the fact that 

the violation ... contributed to a fatality," the judge imposed a penalty of $35,000 for the second 

violation.4 Id. at 409. The Commission thereafter denied a petition for discretionary review filed 

by Eastern Ridge. 

B. The Fourth Circuit's Decision 

Following the Commission's denial of review, Eastern Ridge filed a petition for review in 

the Fourth Circuit, which affirmed in part and vacated and remanded in part the Commission's 

decision. The court upheld the findings of violation (1998 WL 169213 at 2-3), but on a 2-1 vote 

concluded that the S&S determinations were incorrectly based on factual findings which the 

judge did not make. In granting the petition for review in part and remanding the case, the court 

majority stated: 

In the case of the§ 57.3360 violation, the ALJ 

appropriately found the first two Mathies Coal prongs satisfied, 

holding that "the essence of the violation, i.e., failure to provide 

ground support, contributed to the hazard of a roof fall." In 

making these findings on the third and fourth prongs, however, the 

ALJ considered the "combination of ground conditions ... and ... 

the fact that a roof fall did occur in the area causing a fatality and 

seriously injuring another miner." (Emphasis added). The ALJ's 

usage of the roof fall as a relevant event is unsupported. Because 

the ALJ never found whether the failure to provide roof support 

was the cause of the accident, [his] holding that the accident 

indicated that Eastern Ridge "significantly and substantially" 

violated§ 57.3360 is a non sequitur. In order to rely on such a 

finding, the ALJ would need to have found that the failure to 

provide ground support caused the accident; otherwise, the actual 

4 The judge dismissed a third citation which alleged, in essence, that Eastern Ridge 

misused the jumbo drill by using the drill bit to rattle rock. Id at 409-10. 

419 
Id. at 3-4. 

fact of a roof fall indicates nothing relevant about Eastern Ridge's 

actions. 

This logical error becomes most consequential in the ALJ's 

imposition of penalties. In assessing a penalty for the§ 57.3360 

violation, the ALJ noted that "the gravity of the violation was of a 

very high level as the violation contributed to a fatal roof fall." 

(Emphasis added). Similarly, in assessing a penalty under § 

57.3201, the ALJ considered "the fact that the violation herein 

contributed to a fatality.,, (Emphasis added) .... By relying on the 

fact that Eastern Ridge's actions contributed to the roof fall and the 

fatality in making [his] penalty assessments, the ALJ 

inappropriately took account of factors extrinsic to [his] own 

findings. 

For these reasons, we grant Eastern Ridge's petition for 

review and remand this case for further factfinding and analysis of 

the penalties to be assessed. Our ruling should not, however, be 

understood to imply that causation must be found in every case. 

The Commission may impose penalties without any reference to 

whether a roof fall or fatality occurred. But where an ALJ relies on 

the supposition that a mining company's failure to act was a 

contributing factor in a fatal roof fall, he must first find that the 

failure to act was actually a contributing factor. 

C. Proceedings on Remand before the Commission 

On July 2, 1998, we issued an order remanding the case to the judge. On remand, the 

judge's entire findings and analysis was as follows: 

I find that, in assessing a penalty, and evaluating the level of 

gravity of the cited violations, it is not necessary to make a specific 

finding of causation. The high level of gravity is based on the fact 

that the violation contributed to a fatal roof fall. Further, in 

evaluating a penalty, I place most weight on my finding that, for 

the reasons discussed in the original decision, the .level of 

Respondent's negligence constituted aggravated conduct. 

Specifically, the record establishes that Respondent repeatedly 

ignored the warnings of its workers regarding observed unsafe 

conditions. Accordingly, I reiterate my initial findings regarding 

the penalty to be assessed. 

420 
20 FMSHRC at 758. 

II. 

Disposition 

Eastern Ridge contends that by failing to make a finding of causation of the roof fall but, 

nevertheless, basing his S&S and unwarrantability determinations and enhanced civil penalties 

on the conclusion that the violations contributed to the roof fall, the judge repeated the same 

error contained in his initial decision, thereby ignoring the Fourth Circuit's remand instructions. 

ER PDR at 3-4; ER Br. at 16-17. Eastern Ridge further argues that substantial evidence does not 

support the judge's determination that its failure to provide ground support was either S&S or 

due to its unwarrantable failure. Id. at 17-25. Eastern Ridge also asserts that substantial 

evidence does not support the judge's finding that its failure to provide protection from falling 

material to miners was S&S and due to its unwarrantable failure. Id. at 26-31. 

The Secretary contends that the determinations that the violation of section 57.3201 

(location for performing scaling) was S&S and a result of the operator's unwarrantable failure 

and that the violation of section 57.3360 (inadequate roof support) resulted from the operator's 

unwarrantable failure, were briefed and argued before the Fourth Circuit without reversal and are 

now the law of the case. S. Br. at 19-21. She asserts that these determinations were "implicitly 

affirmed" and, therefore, the Commission cannot reconsider them. Id. at 21-24. Alternatively, 

the Secretary argues that those determinations are supported by substantial evidence. Id. at 25-

34, 36-39. With regard to the S&S designation of section 57.3360, the Secretary contends that 

the judge failed to make a specific finding on remand, and therefore the Commission must either 

decide the issue or remand it to the judge for further analysis. Id. at 34. The Secretary argues 

that she does not have to prove that the violation caused the roof fall, but only that the violation 

was reasonably likely to result in an injury-causing event. Id. at 35. Finally, the Secretary asserts 

that in reviewing the penalty on remand, the judge declined to make a finding that the violation 

caused the roof fall but rather concluded the violation contributed to the hazard of a roof fall. Id. 

at 39-40. The Secretary suggests that if the Commission concludes that the judge did not follow 

the court's remand instructions, it should remand the case to the judge. Id. at 40. 

"Law of the case rules have developed to maintain consistency and avoid reconsideration 

of matters once decided during the course of a single continuing lawsuit." 18 Wright, Miller & 

Cooper, Federal Practice and Procedure, § 4478 at 874 (2d ed. Supp. 1999). "The 'law of the 

case' doctrine mandates, ... , that where issues have been ... decided on appeal, the district 

court is obliged, on remand, to follow the decision of the appellate court." United States v. 

Minicone, 994 F.2d 86, 89 (2d Cir. 1993). The law of the case applies to issues decided by 

implication, as well as to matters decided explicitly. Id; Hanna Boys Center v. Miller, 853 F.2d 

682, 686 (9th Cir. 1988). 

We agree with the Secretary that the decision of the court of appeals established the law 

of the case and precludes us from reviewing the unwarrantable failure determinations of the 

421 
section 57.3201 and 57.3360 violations. The unwarrantable failure determinations were raise~, 

briefed, and argued to the court. While the court did not specifically discuss those issues in its 

decision, it clearly addressed the underlying violations (19 WL 169213 at 2-3), the judge's S&S 

determinations (id. at 3), and his imposition of penalties as to both violations (id. at 3-4). 

Implicit in the court's decision, therefore, is affirmance of the unwarrantable failure 

determinations it did not explicitly address. Therefore, we cannot review these issues.5 

With regard to the judge's S&S determinations, it is apparent from a careful reading of 

the court's decision that the S&S determinations as to both violations6 were sent back to the 

judge because of inadequate factual findings, mainly with respect to the third and fourth elements 

of the S&S test set forth in Mathies Coal Co.1 While the court majority saw those factual 

5 Commission Riley disagrees with the majority holding that the circuit court's decision 

disposed of the unwarrantable failure determinations. He believes the court decision is much too 

vague and ambiguous on the question of unwarrantability to be held up as the "law of the case." 

Coupled with what he now regards as a less than precise remand order from the Commission to 

the judge and a seriously misguided decision on remand by the judge, Commissioner Riley 

opines that we have the ingredients for legal confusion, not good law. He believes that to gloss 

over this issue, merely guarantees protracted litigation of an important question in this case. He 

thinks it behooves the Commission to resolve this issue here so as not to leave it open as another 

avenue of appeal. Therefore, he would remand to the judge for further consideration the 

unwarrantable failure determinations, along with the S&S determinations and the assessment of 

penalties. Commissioner Verheggen concurs with Commissioner Riley in finding that the Fourth 

Circuit's decision did not dispose of the judge's unwarrantable failure determination, and that 

this issue should also be remanded. 

6 A close reading of the judge's decision on review before the court indicates that he 

relied on the lack of adequate ground support as a consideration in the S&S determinations 

involving the violations of both section 57.3360 (19 FMSHRC at 406-07) and section 57.3201 

(id. at 408). 

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

§ 814( d), and refers to more serious violations. A violation is S&S if, based on the particular 

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

will result in an injury or illness of a reasonably ser.ious nature. See Cement Div., Nat'! Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC I (Jan. 1984), the 

Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

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

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

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

422 
findings as most directly impacting the level of penalties, those findings cannot be revisited 

without addressing the S&S determinations that provided the context in which the findings were 

initially made. Further, the Commission's remand decision states explicitly that the court 

decision held that "the judge's S&S determinations were inadequately supported because, while 

the judge did not make a finding that the violations caused the fatal accident, he relied on the 

contribution of the violations to the accident in reaching his S&S determination." 20 FMSHRC 

at 1133-34. Thus, the Commission's remand should have eliminated any confusion on the scope 

of issues before the judge. 8 

The judge's remand decision clearly does not address the issue of whether the violations 

of sections 57.3360 or 57.3201 were S&S. Nor does it address the record facts relevant to the 

judge's evaluation of the Mathies criteria that led to the court's remand. Further, in addressing 

the penalties assessed for the violations, the judge repeated virtually the same language that led 

the court majority to vacate and remand his prior decision. The court majority stated: "[T]he 

ALJ noted that 'the gravity of the violation was of a very high level as the violation contributed 

to a fatal roof fall."' I 998 WL 169213 at 3 (emphasis in original). In the remand decision, while 

the judge stated that he was not making a finding of causation, he also stated: "The high level of 

gravity is based on the fact that the violation contributed to a fatal roof fall." 20 FMSHRC at 

758 (emphasis added). We conclude that the judge failed to conduct the additional "factfinding 

and analysis of the penalties to be assessed" (1998 WL 169213 at 4) that the Fourth Circuit 

required. Accordingly, we vacate the judge's decision and remand for further consideration. 

On remand, we direct the judge to state whether he is relying on the failure to provide 

adequate ground support as a cause of the accident and as support for his S&S and penalty 

determinations and, if so, to indicate the basis in the record for doing so. We also remind the 

judge that he does not have to find that the violation led to the ground fall which caused a fatality 

in order to conclude that the violation was S&S. See Arch of Kentucky, 20 FMSHRC 1321, 1330 

(Dec. 1998). 

a reasonable likelihood that the hazard contributed to will result in 

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

will be of a reasonably serious nature. 

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

Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 86 l F.2d 99, I 03 (5th Cir. 1988) (approving 

Mathies criteria). 

8 Commissioner Marks agrees that the S&S as well as the penalty issues be remanded to 

the judge. However, for the reasons set forth in his concurring opinions in United States Steel 

Mining Co., 18 FMSHRC 862, 868-75 (June 1996), and Buffalo Crushed Stone, Inc., 19 

FMSHRC 231, 240-41 (Feb. 1997), he believes that the ambiguous language of the 

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

consistent with Congressional intent. 

423 
III. 

Conclusion 

For the foregoing reasons, we vacate the judge's decision and remand the S&S 

determinations and penalty assessments for further consideration consistent with this decision. 

~ c. ~L .c-- aznes C. Riley, Commissioner 

424 

Theodore F. Verheggen, Co 

7 -... ---·······-::;:./7 .. -..:;:~:.::-:rJ . I~- I . /'-../ , - ~ 

Robert H. Beatty, Jr., C~issioner {/ 
Distribution 

Thomas B. Weaver, Esq. 

Armstrong, Teasdale, Schlafly & Davis 

One Metropolitan Square, Suite 2600 

St. Louis, MO 63102 

Robin A. Rosenbluth, Esq. 

Yoora Kim, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

5203 Leesburg Pike, Suite I 000 

Falls Church, VA 22041 

425 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET N.W., 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 26, 1999 

Docket No. LAKE 99-24-M 

SPROULE CONSTRUCTION CO., INC. 

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

ORDER 

BY: Marks, Riley, Verheggen, and Beatty, Commissioners 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On March 15, 1999, Chief Administrative 

Law Judge Paul Merlin issued an Order of Default to Sproule Construction Co., Inc. ("Sproule") 

for failing to answer the petition for assessment of penalty filed by the Secretary of Labor on 

December 11, 1998, or the judge's Order to Respondent to Show Cause issued on January 28, 

1999. The judge assessed the civil penalties of $10,000. 1 

On March 25, 1999, the Commission received from counsel to Sproule a Motion to 

Vacate Any and All Defaults and for Leave to File Answer to Petition for Assessment. In the 

motion, counsel explains that Michael Sproule, Sproule's vice president, received a letter dated 

December 24, 1998, from the Department of Labor's Mine Safety and Health Administration 

("MSHA") regarding MSHA's policy on compliance assistance visits, and enclosing certain 

forms. Mot. at 2, ~ 3. Counsel states that the operator mistakenly believed that the Show Cause 

Order and Order of Default were inapplicable in view of its response to the December 24 letter 

and involvement in the process of settling and resolving matters relating to the alleged violations. 

Id, if 4. 

1 The Secretary had proposed civil penalties in the amount of $10,600. The document 

setting forth the proposed penalties which was sent via facsimile to the Commission's Docket 

Office is nearly illegible. 

426 
On March 29, 1999, the Commission received an opposition to Sproule's motion from 

counsel in the Department of Labor's Regional Solicitor's Office in Chicago, Illinois. Counsel 

states that Sproule's motion should be denied because Sproule failed to show cause why the 

Default Order should be vacated. Resp. at 2. Counsel submits that the show cause order is 

written in plain language and the operator failed to follow the instructions. Id. at 1. On April 12, 

1999, the Commission received a letter from the Appellate Litigation Division of the Office of 

the Solicitor confirming that the.opposition filed by the Regional Solicitor's Office sets forth the 

Secretary's position. 

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

March 15, 1999. 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 

Sproule's motion to be a timely filed petition for discretionary review, which we grant. See, e.g., 

Middle States Resources, Inc., l 0 FMSHRC 1130 (Sept. 1988). 

427 
On the basis of the present record, we are unable to e:valuate the merits of Sproule's 

position. This point is made abundantly clear in the Chairman's dissent when she states she is 

"frankly mystified as to what actions Sproule took upon receipt of [the December 24J letter." 

Slip op. at 4. We are unwilling to, on one hand, say that we are unable to understand what 

Sproule did, but on the other hand, rule against the company without giving it the opportunity to 

explain its actions. 2 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 General Road 

Trucking Corp., 17 FMSHRC 2165, 2166 (Dec. 1995) (deeming letter as timely filed petition for 

discretionary review, vacating default, and remanding to judge where pro se operator confused 

about Commission's procedural rules); Amber Coal Co., 11FMSHRC131, 132-33 (Feb. 1989). 

Marc Lincoln Marks, Commissioner 

Theodore F. Verheggen, Co 

2 Commissioner Marks finds the above comments regarding Chairman Jordan's dissent 

to be both unnecessary and superfluoi.ls. He, therefore, disassociates himself from them. 

428 
Chairman Jordan, dissenting: 

I respectfully disagree with my colleagues that, based on the present record, we cannot 

evaluate the merits of Sproule,s position. Rather, it is clear to me from my review of the record 

that Sproule does not warrant relief in this case. Accordingly, I would affirm the order of default 

in this proceeding. 

Sproule attempts to excuse its lack of response to the Order to Show Cause by relying on 

its actions generated by MSHA's letter of December 24. However, I am frankly mystified as to 

what actions Sproule took upon receipt of that letter. Sproule has alluded to them in only the 

most general of terms. It refers to its "action in tending to the letter of December 24." Mot. at 2, 

1 4. It mentions that it "had undertaken the appropriate action in addressing issues" raised by the 

letter. Id., 15. It provides no further information whatsoever.' 

Moreover, the Secretary is absolutely correct that the subsequent Order to Show Cause 

was clearly written, and that Sproule simply failed to follow the judge's instructions. Resp. at l, 

'J 3. The Order explained the need for an Answer, described its content, and verified that no 

Answer had yet been received. The judge ordered Sproule to submit an Answer within 30 days 

or to show good reason why it had failed to do so. He made clear that if Sproule did not, it 

would be placed in default and ordered to pay the penalty. 

The judge's Order was precise and unambiguous. It put Sproule on the alert that action 

on its part was necessary in order to avoid a default order. Sproule took no action. 

Consequently, it should pay the penalty ordered by the judge. 

Mary Lu Jordan, Chairman 

1 Although my c-0lleagues in the majority suggest that Sproule has not yet had the 

opportunity to explain its actions (slip op. at 3), I believe that is the very purpose of the motion to 

vacate which Sproule submitted to us. The majority's willingness to remand this matter to the 

judge on the basis of this motion, which is bereft of any substantive rationale, appears to 

transform this process into a mechanical one, in which all a party need do in similar 

circumstances is request relief. 

429 
Distribution 

Richard Reichstein, Esq. 

One N. LaSalle Street #3630 

Chicago, IL 60602 

Rafael Alvarez, Esq., 

Office of the Solicitor 

U.S. Department of Labor 

230 South Dearborn Street 

Chicago, IL 60604 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Boulevard 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

federal Mine Safety and Health Review Commission 

1730 K Street, N.W., Suite 6003 

Washington, D.C. 20006 

430 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NORTHWESTERN RESOURCES, 

Respondent 

April 8, 1999 

CIVIL PENAL TY PROCEEDING 

Docket No. CENT 98-153 

A.C. No. 41-03164-03542 

Jewett Mine 

DECISION 

Appearances: Ned Zamarripa, Conference and Litigation Representative, Mine Safety 

and Health Administration, U.S. Department of Labo~, Denver, Colorado, 

for the Petitioner; 

Charles C. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, P.C., 

El Paso, Texas, for the Respondent. 

Before: Judge Feldman 

This proceeding concerns a petition for assessment of civil penalty filed by the Secretary 

of Labor against Northwestern Resources (the respondent) pursuant to section 1 lO(a) of the 

Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 820(a). The petition 

seeks to impose a total civil penalty of $734.00 for seven alleged violations of the mandatory 

safety standards in 30 C.F.R. Part 77 of the Secretary's regulations governing surface coal mines. 

Three of the seven cited conditions were designated as significant and substantial (S&S). 1 These 

matters were heard on January 20 and January 21, 1999, in Huntsville, Texas. 

At the hearing, the parties agreed to settle one of the citations and they waived the 

filing of post-hearing briefs with respect to three of the citations so that a bench decision 

could be entered with respect to those citations. The settled citation and bench decisions, with 

non-substantive edits, will be addressed in the initial portion of this decision. 

The parties have filed post-hearing proposed findings and replies with respect to the 

remaining citations that .are contested by the respondent. These citations involve the issue of the 

1 A violation of a mandatory safety standard is properly characterized as S&S 

if it is reasonably likely that the hazard contributed to by the violation will result in an event, 

i.e., an accident, resulting in serious injury. US. Steel Mining Co., 6 FMSHRC 1834, 1836 

(August 1984). 

431 
circumstances under which deposits of hydraulic or lubricating oils on engines, transmissions and 

frames of equipment operating at a surface mine constitute a prohibited accumulation of 

combustible materials under section 77.1104, 30 C.F.R. § 77.1104, of the Secretary's mandatory 

safety standards.2 

I. Pertinent Case Law and Penalty Criteria 

This decision applies the Commission's standards with respect to what constitutes an 

S&S violation. A violation is properly designated as S&S in nature if, based on the particular 

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

to by the violation will result in an injury or an illness of a reasonably serious nature. Cement 

Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981 ). In Mathies Coal Co., 

6 FMSHRC l (January 1984), the Commission explained: 

In order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: 

(I) the underlying violation of a mandatory safety standard; (2) a discrete safety 

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

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

result in an injury; and ( 4) a reasonable likeJihood that the injury in question will 

be of a reasonably serious nature. 6 FMSHRC at 3-4. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, I 04-05 (5th Cir. 1988), affg 9 FMSHRC 

2015, 2021 (December 1987) (approving Mathies criteria). 

In United States Steel Mining, Inc., 7 FMSHRC 1125, 1129, (August 1985), the 

Commission explained its Mathies criteria as follows: 

We have explained further that the third element of the Mathies formula 'requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury.' US. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104(d)(l), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. U.S. Steel 

Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984). 

The Commission subsequentJy reasserted its prior determinations that as part of any 11S&S" finding, the Secretary must prove the reasonable likelihood of an injury occurring as a 

result of the hazard contributed to by the cited vioJative condition or practice. Peabody Coal 

2 As discussed infra, the Secretary concedes that petroleum deposits in engine 

compartments and on transmissions are unavoidable consequences of operating internal 

combustion equipment, and, that not all such deposits constitute violations of section 77 .1104. 

432 
Company, 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508 (April 

1996). 

This decision also applies the statutory civil penalty criteria in section 11 O(i) of the Act, 

30 U.S.C. § 820(i), to determine the appropriate civil penalty to be assessed. Section 11 O(i) 

provides, in pertinent part, in assessing civil 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. 

The parties stipulated that the respondent is a large operator that is subject to the 

jurisdiction of the Mine Act and that the small civil penalty sought to be imposed by the 

Secretary will not affect the respondent's ability to continue its business. The evidence further 

reflects that Northwestern abated the cited conditions in a timely manner. (Joint Ex. I). 

Northwestern does not have a significant history of previous violations in that, during the 

two years preceding the issuance of the citations in issue, Northwestern was cited for only 

14 violations, ten of which were designated as non S&S. (Ex G-8). 

II. Findings of Fact and Bench Decisions 

This matter concerns seven citations that were issued as a result of a regular Triple A 

inspection that was conducted during January and February 1998 by Mine Safety and Health 

Administration (MSHA) Inspector Alfonso Castaneda, Jr., at Northwestern's Jewett Mine, a 

surface coal facility located in Leon County, Texas. Although all of the citations were initiaIJy 

characterized as S&S, three of the citations were subsequently modified to delete the S&S 

designation following MSHA Health and Safety Conferences conducted on March 31 and 

April 28, 1998. 

a. Citation No. 7599225 

Citation No. 7599225 was issued by Inspector Castaneda on February 12, 1998, for 

accumulations of loose coal and fine coaJ dust, prohibited by section 77.1104, that were located 

under the No. 1 Belt that transports coal from the coal hopper to the coal transfer tower. The 

cited condition was desi·gnated as S&S and the Secretary proposed a civil penalty of $178.00. 

At the hearing, Northwestern agreed to accept the citation as issued, and it agreed to pay the 

$178.00 proposed civil penalty. (Tr. 340). Accordingly, the parties' settlement of Citation 

No. 7599225 was approved on the record and Citation No. 7599225 shall be affirmed. 

433 
b. Citation No. 7599226 

Castaneda testified that, during the course of his inspection, he asked miners if they had 

any safety ·concerns. A miner expressed concern about the adequacy of the lights around the 

No. 28 dragline shoes. Consequently, Castaneda performed an evening shift light check at the 

No. 28 dragline. Each dragline has ·two sets of "star wars" type shoes that move approximately 

eight feet per step when it is necessary to maneuver the dragline. Castaneda observed a shadow 

area adjacent to the dragline shoes that he concluded was not adequately illuminated by the 

dragiine lights. However, Castaneda did not take any objective measurements of the illumination 

in the area. (Tr. 39). Castaneda stated the shoe area is the location where the dragline oiler 

mounts and dismounts the dragline. Castaneda testified the oiler would have to step down a 

distance of approximately six inches to two feet depending on the terrain. Castaneda concluded 

it was reasonably likely that the oiler would sustain a serious slip and fall injury. Consequently, 

he issued Citation No. 7599226 alleging an S&S violation of the mandatory safety standard in 

section 77.207, 30 C.F.R. § 77.207. This mandatory standard requires, in pertinent part, 

"illumination sufficient to provide safe working conditions." 

In defense of the citation, Northwestern elicited contradictory testimony from Castaneda 

with regard to whether Castaneda believed the illumination was inadequate or whether he was 

relying on the miner's complaint as the basis for issuing the citation. Moreover, Castaneda 

conceded that Northwestern had increased the wattage of the dragline lights from 400 watts each 

to 1,000 watts, and that Northwestern had added additional lights to the dragline to increase the 

number of lights from those that were initially installed. 

The Secretary did not call any miners to testify that the illumination was inadequate. 

However, Northwestern called employee Terry Mosely, a dragline oiler, who opined that the light 

around the No. 28 dragline shoes was adequate. (Tr. 74). Mosely testified the lighting problem 

at the No. 28 dragline primarily was caused by lights on the adjacent No. 27 dragline that was 

operating in the same pit. Mosely testified the lights from the No. 27 dragline were "blinding" 

personnel at the No. 28 dragline. 

At the hearing, the following bench decision was entered witnrespect to Citation 

No. 7599226: 

Citation No. 7599226, which cites a violation of section 77.207, states: 

The dragline 28, Marion 8750, outside illumination was not 

sufficient to provide safe working conditions. The shadow cast 

alongside the propel, shoe walkway, and on the ground adjacent to 

the propel shoes made it difficult for a person to safely walk and 

mount the machine. The machine was in use at the D pit. 

434 
Section 77 .207 provides: 

Illumination sufficient to provide safe working conditions shall be 

provided in surface structures, paths, walkways, stairways, switch 

panels, loading and dumping sites and working areas. 

Thus, the operative phrase is "illumination sufficient to provide safe working 

conditions." Whether the illumination required by the mandatory standard is 

adequate to provide safe working conditions must be viewed in the context of the 

circumstances upon which personnel will be working in the area being 

illuminated. Here, the concern is for the oiler who is called upon to mount and 

dismount the dragline via a ladder of several steps that is installed adjacent to the 

shoes of the dragline. The uncontroverted testimony is the distance of descent 

from the bottom of the ladder to the surface varies between six inches and two 

feet depending on the terrain. 

The dragline's initial 400 watt lights installed on the dragline were replaced with 

1,000 watt lights. In addition, additional lights were installed. Although there 

was reference made to Terry Mason, a dragline oiler who reportedly complained · 

to Castaneda about the lights, Mason was not called by the Secretary as a witness 

in support of the citation. On the other hand, the respondent presented testimony 

from Terry Mosely, another oiler employed by Northwestern, who opined the 

lighting was adequate. 

The adequacy of lighting, in the absence of objective lumen measurements, is 

subjective. Although reasonable people may differ with regard to what constitutes 

adequate lighting conditions, Castaneda's opinion is unsupported by, and 

outweighed by Moseley's testimony. Given the Secretary's burden of proving the 

fact of a violation, the evidence is inadequate to support Citation No. 7599226. 

Accordingly, Citation No. 7599226 shall be vacated. (Tr. 342-45). 

c. Citation No. 7599212 

During the course of his inspection, Castaneda observed Northwestern's Dl06 Komatsu 

bulldozer in the D pit area. The bulldozer had a fire suppression system with discharge hoses 

and nozzles on the right and left sides of the dozer. The discharge hoses were connected to metal 

canisters containing fire suppression chemicals that were located on the right and left sides of the 

dozer. Castaneda noted the actuating line was disconnected from the right canister, thus 

disabling the right side discharge hoses and nozzles. Castaneda recalled the threads on the 

disengaged connection fitting were rusted which gave him reason to believe this condition had 

existed for a considerable period of time. 

435 
Consequently, Castaneda issued Citation No. 7599212 citing an alleged violation of 

section 77.1110, 30 C.F.R. § 77.1110. This mandatory standard requires firefighting equipment 

to be continuously maintained in a usable and operative condition. Although the cited condition 

was initially designated as S&S, it was subsequently modified to a non S&S citation. 

The respondent does not dispute that the right actuator was disconnected and that the 

system was not fully functional. However, the respondent asserts that the right side canister 

system was redundant in that the left side canister and hoses, alone, constituted an effective fire 

suppression system. fn addition, the respondent argues that the actuator connection had not been 

repaired because it recently had become disconnected as evidenced by the fact that the 

malfunction had not been noted in the preshift book. Thus, the respondent asserts, somewhat 

inconsistently, that although it believed the right side discharge hoses to be superfluous, it would 

have repaired the condition immediately had it been aware of the situation. Finally, the 

. respondent argues that fire extinguishers, which were available to the dozer operator, are 

sufficient to satisfy the cited mandatory standard. 

The following bench decision was issued for Citation No. 7599212: 

Citation ·No. 7599212, citing a violation of section 77 .1110, states: 

The fire suppression system provided on the Komatsu bulldozer, 

Model D375A, Company No. I 06, was not maintained in an 

operative condition. The actuator line had come loose from the 

actuating cartridge. The bulldozer was in use at the D Pit. 

Section 77.1110 requires that "firefighting equipment shall be continuously 

maintained in usable and operative condition." I am sensitive to the respondent's 

argument that the cited fire suppression system was not mandatory and that, 

ordinarily, fire extinguishers are adequate. However, once the respondent took it 

upon itself to install this fire suppression system, it had a continuing duty to 

maintain it. It is undisputed that, while the system was operative on the left side, 

it was inoperative on the right side. Whether or not the left side alone was 

sufficient to extinguish a fire, the malfunction on the right side undoubtedly 

would cause a diminution in effectiveness. 

Turning to the respondent's assertion that the condition had just occurred, 

notwithstanding Castaneda's testimony concerning the corrosion on the actuator 

connection, the Commission has noted the failure to note a condition in a preshift 

book does not establish the condition occurred after the shift began. See Peabody 

Coal Company 14 FMSHRC 1258, 1262 (August 1992) citing Eastern Associated 

Coal Company, 13 FMSHRC 178, 187 (February 1991). To.the contrary, the 

condition may have been overlooked, or, it may not have been considered 

hazardous in which case it would continue to be excluded from the preshift 

notations. 

436 
In any event, the evidence supports the cited violation. Accordingly, Citation 

No. 7599212 is affirmed, and the $50.00 civil penalty proposed by the 

Secretary for this non S&S condition shall be assessed for this citation. 

(Tr. 345-47). 

d. Citation No. 7599214 

On January 28, 1998, Castaneda inspected the auxiliary room of the Caterpillar backhoe, 

Model LSOI. Although this area is referred to as "a room" it is more accurate to describe it as a 

very small tool shed that is located under the operator's compartment. (See photographs 

admitted as Exs. R-9A-9F). The area is accessed from a door that is located to the left of a 

ladder that is affixed to the side of the backhoe. The ladder is used to climb from the surface 

onto the backhoe catwalk structure. The dimensions of the subject "room" are 49 inches wide by 

50 inches long. Upon opening the door to this area, Castaneda observed tool boxes, wrenches, 

sledge hammers and various machine parts lying on the floor. 

Based on his observations, Castaneda issued Citation No. 7599214 citing the respondent 

for an alleged violation of section 77.208( a), 30 C.F .R. § 77 .208( a), that provides, "materials 

shall be stored and stacked in a manner which minimizes stumbling or fall of material hazards." 

Although the citation was issued as S&S, it was subsequently modified to delete the S&S 

designation as a result of a Health and Safety Conference after MSHA conceded the cited area 

"was not a high traffic area" where exposure to serious injury was likely. Indeed. 

At the hearing, the following bench decision was issued with respect to Citation 

No. 7599214: 

The subject area is approximately 4 feet by 4 feet. The cited standard requires that 

materials be stored and stacked in a manner so as to minimize stumbling and 

falling. The standard must be reasonably interpreted to require that tools and 

other materials be kept in a comer or along a wall so that mine personnel can 

traverse an area without tripping and falling. However, this area, which is 

analogous to a truck bed where tools are stored, is not a walk through area as the 

entire area can be reached by standing in place. Thus, MSHA's characterization 

of this space as "not a high traffic area" is disingenuous in that it is not a traffic 

area at all. 

To determine if a broadly worded mandatory standard applies to a given factual 

situation the Commission applies the reasonably prudent person test. Ideal 

Cement Company, 12 FMSHRC 2409, 2416 (November 1990). A reasonably 

prudent person familiar with the purposes of the cited mandatory standard would 

437 
not think the standard was applicable to this situation. MSHA's attempt in this 

instance to micro manage the placement of tools :in this closeted area trivializes 

the Mine Act, and, in so doing, undermines its purpose. Accordingly, Citation 

No. 7599214 shall be vacated. 

III. Further Findings and Conclusions 

The remaining three citations concern alleged violations of section 77 .11 04 as a result of 

Castaneda's observations of fuels, oils, or lubricants on internal combustion engines, frames and 

transmissions of equipment used in the mining process. Section 77. I 104 provides: 

Combustible materials, grease, lubricants, paints, or flammable liquids shall not 

be allowed to accumulate where they can create a fire hazard. 

Thus, in considering whether violations of section 77 .1104 have occurred the Secretary 

must demonstrate: (1) the presence of combustible material; (2) that the combustible material 

was "allowed" to accumulate; and (3) that the accumulations are located in an area "where they 

can create a fire hazard." 

In evaluating the merits of the citations discussed below, the first element of a section 

77 .1104 violation is present in that it is undisputed that deposits of hydraulic and lubricating oils 

and diesel fuel are combustible. The third element requires an analysis of potential ignition 

sources and their proximity to the combustible material. 

However, the second element of section 77 .1104, namely whether the cited deposits are 

" accumulations," and, if so, whether they were "allowed" to accumulate, raise difficult issues 

that must be resolved on a case by case basis. For example, the Secretary's characterization of 

areas of oil deposits on engines, hoses and frames of heavy duty mining equipment as 

"accumulations" begs the question. In this regard, Inspector Castaneda conceded not all oil 

deposits on engines constitute violations of section 77.1104, stating that the issue is one of 

degree. (Tr. 208-09, 231 -33). Moreover, Castaneda admitted internal combustion engines are 

designed to operate safely despite seepage from gaskets and hoses, and, that engine deposits are 

commonplace and not ignitable from engine heat. (Tr. 212). Specifically, Castaneda testified: 

COURT: The issue of oiJ, lubricants, hydraulic oil, in an engine 

compartment, in your experience, I assume you've frequently come 

into contact with oil on trucks; right? 

A. Yes. 

438 
COURT: If you looked at the engine[s] of ... heavy duty truck[s], 

what percentage of them would be clean as opposed to engines 

with residue or oil deposits on them? Isn't it a common occurrence 

to have oil deposits on an engine particularly engines, backhoes, 

this type of equipment? Isn't it hard to keep it free of residue? 

A. On all engines, yes. 

COURT: So there was something about this condition that 

distinguishes normal residue; is that --

A. About the amount that I would normally expect to see. 

COURT: Would the heat from the engine be a source of ignition? 

A. Just the ambient heat? 

COURT: Yes, from the engine itself. 

A. No. 

COURT: So the materials on the engine itself, the engine running, 

the engine wouldn't be an ignition source? 

A. No. (Tr. 211-12). 

Although the subject citations primarily concern "accumulations" of oil deposits, the 

citations dealing with the backhoe and coal hauler also concern deposits of fine coal dust. 

These pieces of equipment operate "knee deep" in outdoor, open coal pits. In this regard, a video 

was admitted depicting Jewett Mine heavy duty equipment operating in coal beds. See Ex. R-26. 

Castaneda repeatedly admitted it is impossible to prevent fine coal dust deposits on the frames 

and in the compartments of such equipment. (See, e.g., Tr. 193-94, 236, 283-86). For example, 

Castaneda testified: 

COURT: When we saw the video [Ex. R-26] on the general 

operations of the Jewett Mine, am I correct that these haulers 

sometimes actually ride in these coal pits; is that correct? 

A. They always go to the coal pits. 

COURT: Thaf s what I'm saying. They're in the coal pit? 

A. Yes, sir. 

439 
COURT: So they're basically riding through extensive areas of 

coal? 

A. Yes, sir, they are. 

COURT: How do you keep any degree of coal particles from 

"accumulating,, underneath the underbelly of a hauler if it's riding 

through piles of coal? 

A. You're not 

COURT: How do you determine when you're doing an inspection 

what is and what isn't a violation with regard to the coal that's on 

the equipment itself? 

A. I have to make a decision on whether it is or [is] not when I'm 

looking. 

COURT: Whether it's normal accumulations or over and above? 

A. Whether it's normal accumulations or it's above and beyond. 

All these haulers, they haul coal. You're going to get some coal 

dust on them, but if you don't have the oil and something to make 

it stick to the frames or the equipment, then coal dust, whenever 

it's dry, it can blow off as soon ~ it gets on the road. 

COURT: I see. Again these haulers, I think of a hauler as a dump 

truck that's loaded, but these particular haulers actually drive 

through mounds of coal in the pit; is that right? 

A. Not in the pit. 

COURT: I remember in the video that I saw areas where they 

seemed to be riding over - I I ( I 

A. They're riding on top of the solid coal, and then the backhoe or 

the ... will rake the coal out and swing over and dump it into the 

bed of the truck. 

COURT: Okay. So what I recall now was that it was riding on the 

areas of solid coal. 

440 
A. And then it goes on a dirt road to the coal stop light where, 

depending upon what the plant wants, they'll either go over to 

[inaudible] or they'll go over to the coal stock pile. 

COURT: Let me ask you this question. This issue of 

transmission[s], I'm thinking in terms of [a] transmission 

mechanism, the rear end of a vehicle. In your opinion, is it 

common to have residue oflet's say seepage of transmission fluids, 

oil, in and around the transmission boxes and the rear end of these 

vehicles, you know, the underbelly of the vehicle? 

A. Yes. 

COURT: If you look at the li.nderbelly of such a vehicle, and you 

saw, as I said, that it was coated, not with measurable amounts, but 

just coated in the sense that there was a deposit of transmission 

fluid and hydraulic oils, again on the transmission and the rear end 

of a vehicle like this, do you consider that to be a violation of 

77.1104? 

A. This is a combination of coal dust and oil or coal dust without 

oil? 

COURT: If you have any degree ofresidue, I would assume ... in 

fact, that's the quandary that I have; if you have any degree of 

residue and you're riding through areas of coal, how do you 

prevent some dust from adhering to the coating that's not 

uncommon that forms on transmissions and rear ends of vehicles: 

A. You will not prevent it. You're going to --

COURT: Is that a violation then, do you think? 

A. It would depend upon the degree; I mean, the amount of 

accumulation; just merely having dry coal dust on a metal frame in 

its normal operations, I would not think that I would issue a 

citation on that. 

COURT: What about the coating of coal dust and hydraulic fluids 

on the transmission and rear end, again the underbelly of the 

vehicle? 

A. It would depend upon the degree. 

441 
COURT: But these are not easy decisions, are they? 

A. Not to me they 're not. 

COURT: I appreciate that these are difficult calls, and that's what 

we're grappling with here today. (Tr. 283-86). 

In the context of the above analysis and testimony, we now consider the subject 

section 77 .1104 citations. 

a. Citation No. 7599213 - Hitachi Backhoe BOOS 

During the course of his inspection, Castaneda opened the door to the engine 

compartment of the Hitachi backhoe. Castaneda observed an area of hydraulic oil and lube oil 

about 3 feet by 3 feet in size "mostly on the surfaces of the hose and frame" along with some fine 

coal dust. The backhoe was in operation and had fine coal dust on it becaμse it was loading 

haulers. (Tr. 193-4). 

Castaneda considered the oil deposits in the engine compartment, and on and around the 

hydraulic pump motors that were located outside the engine compartment at the front of the 

backhoe, to be excessive aQ.d more than a "normal accumulation." (Tr. 232). Although 

Castaneda did not identify a specific leak in the engine compartment, Castaneda determined, 

based on information provided by Northwestern's maintenance supervisor, Ronald Carmichael, 

that the hydraulic pump at the front of the backhoe was leaking because an 0-ring had been left 

off after the pump had been overhauled. (Tr. 194, 214-15). 

Consequently, Castaneda issued Citation No. 7599213, alleging a violation of section 

77 .1104, because: 

Combustible materials were allowed to accumulate on the Hitachi Backhoe, B008, 

where they created a fire hazard. Hydraulic oil, lube oil and fine coal dust had 

accumulated on the engine, puinps, hoses, and frame of the backhoe. The 

backhoe was in use at the D Pit loading coal haulers. 

Castaneda concluded the violation was S&S although he was unable to provide 

conv.incing testimony concerning any potential ignition sources in the vicinity of the cited 

accumulations. Flammable liquids have a flash point of less than 100 degrees Fahrenheit. 

Combustible materials, such as the cited oil lubricants, have flash points above 100 degrees 

Fahrenheit. As previously noted, Castaneda conceded the ambient heat from the engine was an 

insufficient ignition source. (Tr. 212). Although he relied on the exhaust manifold as a potential 

442 
source of ignition he did not explain why the exhaust heat source is more dangerous than the heat 

generated by the engine that is in direct contact with the cited de]Josits. Castaneda also stated 

that insulation on electrical wiring that could become damaged and create an ignition spark could 

be another ignition source although he admitted a defective spark plug wire was not a significant 

source of ignition. (Tr. 214). 

i. Discussion and Evaluation 

As a general proposition, not all combustible accumulations are prohibited 

accumulations, particularly at a surface mine where underground considerations of 

permissible equipment, coal dust suspension and propagation, are not safety concerns. (See 30 

U.S.C. § 878(i) pertaining to permissible equipment in underground mines; see also Tr. 210, 

301-02). For example, a coal stockpile or a wet oil spot on the ground are not prohibited 

accumulations. 

Moreover, oil deposits on engines, hydraulic motors and transmissions on surface mine 

equipment must be viewed in context because they are not "accumulations" as that term is 

normally applied to coal dust accumulations. Unlike coal dust that can accumulate in depth over 

a period of time, oil "accumulations" drip off on the ground, or are vaporized from the heat of the 

engine. (Tr. 234-36). 

The Commission has held that a violative "accumulation" exists "where the quantity of 

combustible materials is such that, in the judgement of the authorized representative of the 

Secretary, it likely could cause a fire or explosion if an ignition source were present." Old Ben 

Coal Co., 2 FMSHRC 2806, 2808 (October 1980). The mine inspector's judgement is subject to 

a challenge before the administrative law judge. Id. at 2808 n. 7. The inspector's judgement 

must be reviewed judicially by applying an objective test of whether a reasonably prudent person, 

familiar with the surface mining industry and the protective purpose of the cited mandatory 

safety standard, would have recognized the hazardous condition that the regulation seeks to 

prevent. Utah Power & Light Company, Mining Division, 12 FMSHRC 965, 968 (May 1990). 

Having said that not all combustible accumulations are prohibited, we turn to the 

provisions of the cited mandatory standard in section 77.1104. As an initial matter, it is 

important to recognize the distinction between es~ishing the fact of occurrence of a section 

77.1104 violation, and establishing that such a violation is S&S. To establish the fact of 

occurrence, the Secretary must show th~..an operator "allowed" combustible materials to 

accumulate at a location and in a manner that are ill advised. In other words, routine engine oil 

deposits, or other lubricating oil deposits and residues, that are a consequence of normal 

operations do not constitute a violation of section 77.1104. However, a discrete operational 

defect, manifest by excessive accumulations of leaking hydraulic oils and lubricants, constitutes a 

violation of section 77. 1104. Here, the evidence reflects combustible material was permitted to 

accumulate on the subject backhoe by virtue of a defective or missing 0-ring on the hydraulic 

pump. Consequently, the Secretary has demonstrated a violation of section 77.1104. 

443 
Turning to the S&S issue, the Secretary bears the burden of proving the S&S nature of a 

violation. Union Oil Co. Of Cal., 11FMSHRC289, 298 (March 1989); US. Steel Mining Co., 

6 FMSHRC 1834, 1836 (August 1984). An S&S violation of section 77.1104 requires a 

demonstration of a "confluence of factors," such as presence of a fuel source in proximity to a 

potential ignition source, to establish a reasonable likelihood that ignitions or explosions will 

occur. See Texasgulf. Inc., 10 FMSHRC 498, 501{April1988). As discussed above, 

Castaneda's testimony with regard to the likelihood of ignition sources was inconsistent and 

unconvincing. Given Castaneda's concession that not all oil deposits on engines and 

transmissions are violations, it is clear that such deposits are not significant risks of fire. 3 

Accordingly, Citation No. 7599213 shall be modified to delete the S&S designation. 4 

The Secretary initially proposed a civil penalty of $178.00 for Citation No. 7599213. 

Although the S&S designation has been deleted, the degree ofNorthwestern's negligence was 

relatively high in view of its failure to replace the missing 0-ring. Accordingly, consistent with 

the penalty provisions of section 11 O(i) of the Mine Act, a civil penalty of $100.00 shall be 

imposed for this violation. 

b. Citation No. 7599215 - Light Plant No. 15 

Northwestern uses light plants at various locations at the mine to provide additional 

lighting at night A light plant consists oflights mounted on a small trailer-like device that can 

be moved from location to location as needed. (Exs. R-1 lA-E; Tr. 251). The lights are powered 

by a diesel engine which starts and stops automatically by a photocell. In the morning, when 

sufficient light appears, the photocell will cause the engine to stop and the lights to go out. As 

dusk appears and it becomes dark, the photocell causes the engine to start and the lights to come 

on. In addition, the light plant is equipped with two warning lights. An amber light comes on 

when the light plant is ready and could start at any time. When fuel becomes low, a blue light 

begins flashing to indicate that additional fuel is needed. 

3 As discussed infra, the conclusion that Castaneda failed to provide persuasive testimony 

that an explosion or fire was reasonably likely to occur is consistent with MSHA's non S&S 

determination in Citation No. 7599216 that there were no "obvious ignition sources" near 

"hydraulic oil and coal dust ... on the transmission, hoses and frame of [a Euclid] coal hauler." 

(Ex. G-5, p.3). 

4 In her post-hearing Proposed Findings, the Secretary refers to a Mine Safety and Health 

Administration Technical Support report that noted there were 106 mobile diesel equipment fires 

during the years between 1978 and 1983. (Sec.'s Br. at p.9-10). This information has not been 

considered because it was not presented at the hearing. Moreover, the circumstances behind 

these reported fires are unknown and they are, therefore, of little evidentiary value in determining 

whether the cited condition was likely to contribute to a fire and resulting injury. 

444 
Castaneda examined the light plant located on the highwall of the D Pit that was used at 

night to provide additional lighting to the pit floor below. The light plant was not operating at 

the time. No employee worked near the light plant. The nearest employee working was 

approximately 150 to 200 yards away. (Tr. 270). 

Castaneda testified that he opened the engine door and saw evidence of diesel fuel 

running down the side of the engine. (Tr. 253). Castaneda determined there was a leak in a 

return line that recirculates excess diesel fuel that is not sprayed into the engine by the injectors. 

The respondent's safety coordinator, David Evans, admits there was a leak in the diesel fuel line 

that caused some diesel fuel to leak onto the side of the engine. 

As a result of his observations, Castaneda issued Citation No. 7599215 citing.a violation 

of section 77.1104 for allowing combustible material, including diesel fuel, to accumulate where 

it could cause a fire hazard on the Light Plant No. 15. In view of the fact that employees did not 

work in proximity to the light plant, Castaneda designated the violation as non S&S in nature. 

The Secretary proposes a civil penalty of $50.00 for this violation. 

As discussed above, a violation of the mandatory safety standard in section 77 .1104 

occurs if the respondent allowed, by virtue of a discrete operational defect, combustible materials 

to accumulate. Here the respondent permitted diesel fuel leakage, albeit in small amounts, to run 

down the side of the engine. Operating the light plant in a state of disrepair, given the resultant 

diesel fuel accumulation, constitutes a violation of section 77.1104. Accordingly, Citation 

No. 7599215 shall be affirmed and the $50.00 civil penalty proposed by the Secretary shall 

be assessed. 

c. Citation No. 7599216- Coal Hauler 

Castaneda and David Evans, Northwestern's safety coordinator, inspected coal hauler 

No. OOLat the D Pit and observed some oil dripping down the side of the transmission. Evans 

testified that occasional transmission oil discharge through the transmission's oil breather was a 

normal occurrence. Northwestern's maintenance supervisor, Ronald Carmichael opined it is 

impossible to operate Euclid coal haulers, because of their design, without getting some 

transmission oil through the breather onto the outside of the transmission. Tr. 333, 338. The 

Euclid transmission is designed to operate as a brake when going down a slope. Downshifting, 

as well as operating under a heavy load, causes heat buildup in the transmission. The heat causes 

the transmission fluid to expand which results in the release of "little burps" from the breather. 

Tr. 333-334. 

445 
As a result of his observations, Castaneda issued Citation No. 7599216 alleging a 

violation of section 77 .1104 because: 

Combustible materials were allowed to accumulate on the Euclid coal 

hauler, Company No. 001, where they could create a fire hazard. 

Hydraulic oil and coal dust was present on the transmission, hoses and 

frame of the coal hauler. The coal hauler was in use at D Pit. 

Although the citation was initially issued as S&S, it was modified to delete the S&S 

designation on May 4, 1998, as a result of a Health and Safety Conference. In modifying the 

citation, it was noted that, " the accumulation on this unit was not excessive nor was it in an area 

where there were obvious ignition sources." (Ex. G-5, p.3). 

At the hearing Castaneda stated he inspected two Euclid haulers at the Jewett Mine. One 

Euclid was observed at the fuel station with hydraulic oil leaking out of a rear oil tank onto the 

ground in the nature of an overflow. Another Euclid was inspected at the D Pit located six miles 

from the fuel station. The Euclid at the D Pit had the transmission leak. The respondent 

contends Castaneda has confused the extensive oil leaking to the ·ground from the Euclid at the 

fuel station with the normal small amount of transmission fluid discharged from the breather on 

the cited Euclid at the D Pit. Although Castaneda insists the cited Euclid had an extensive 

transmission leak, Castaneda's recollection of his inspection that occurred approximately one 

year earlier is undermined by the results of the Health and Safety Conference that was conducted 

shortly after the subject inspection. Consequently, the evidence supports the testimony of Evans 

and Carmichael that the cited transmission discharge was "not excessive" or otherwise 

extraordinary. 

As previously discussed, normal petroleum discharges and deposits through breathers, or 

seepage through hoses and gaskets, do not constitute violations of section 77 .1104 because the 

operator has not "allowed" combustible accumulations to occur. It is also significant that 

MSHA concedes "there were no obvious ignition sources" in the vicinity of the cited "leak." 

The absence of a showing of a potential ignition source also precludes a finding of a section 

77 .1104 violation because the plain language of this standard requires a showing that the cited 

accumulations "can create a fire hazard." Accordingly, Citation No. 7599216 shall be vacated. 

ORDER 

In view of the above, IT IS ORDERED that Citation Nos. 7599226, 7599214 and 

7599216ARE VACATED. 

IT IS FURTHER ORDERED that, pursuant to the parties' settlement agreement, 

Citation No. 7599225 IS AFFIRMED. 

446 
IT IS FURTHER ORDERED that Citation Nos. 75.99212 and 7599215 

ARE AFFIRMED. 

IT IS FURTHER ORDERED that Citation No. 759921 3 IS MODIFIED to delete the 

significant and substantial designation. 

ACCORDINGLY, IT IS ORDERED that Northwestern Resources pay a total civil 

penalty of$378.00 within 45 days of the date of this Decision. Upon timely receipt of payment, 

Docket No. CENT 98-153 IS DISMISSED. 

Administrative Law Judge 

Distribution: 

Ned Zamarripa, Conference and Litigation Representative, U.S. Department of Labor, 

Mine Safety and Health Administration, P.O. Box 25367, Denver, CO 80225 (Certified Mail) 

Charles C. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, P.C., 1900 Norwest Plaza, 

P.O. Box 2800, El Paso, TX 79901-1441 (Certified Mail) 

/mh 

447 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 Skyline, Suite 1000 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

K.R. WILSON CONTRACTING, INC., 

Respondent 

April 19, 1999 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 98-159-M 

A. C. No. 23-00746-05530 

Docket No. CENT 98-207-M 

A.C. No. 23-00746-05531 

Sullivan Plant 

DECISION 

Appearances: Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, 

Colorado, for Petitioner; 

Michael 0. McKown, Esq., Ziercher & Hocker, P.C., St. Louis, Missouri, for 

Respondent. 

Before: Judge Hodgdon 

These consolidated cases are before me on Petitions for Assessment of Civil Penalty filed 

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

against K.R. Wilson Contracting, Inc., pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815. The petitions allege five violations of the Secretary's 

mandatory health and safety standards and seek penalties of $100,860.00. A hearing was held in 

St. Louis, Missouri. For the reasons set forth below, I vacate one citation, affirm four and assess 

penalties of $40,688.00. 

Settled Citations 

At the beginning of the hearing, counsel for the Secretary advised that the parties had 

agreed to settle the two citations in Docket No. CENT 98-207-M. The agreement provides that 

the peJ}alty will be reduced from $860.00 to $688.00. Based on the representations of the parties, 

l concluded that the settlement was appropriate under the criteria set forth in section 11 O(i) of the 

Act, 30 U.S.C. § 820(i), and approved the agreement. (Tr. 16-18.) The provisions of the 

agreement will be carried out in the order at the end of this decision. 

448 

• I '1 J ' t 
Background 

. The Respondent operates a small limestone quarry in Sullivan, Missouri, known as the 

"Sullivan Plant." At about 12:30 p.m., on June 20, 1997, Larry Bouse, the plant foreman, began 

replacing a brake expander tube on the left rear wheel of a 1966 Caterpillar, Model 98 8A, frontend loader. This required him to elevate and block the loader on stands. Since it was necessary 

to remove the wheel, one end of the fender over the wheel was disconnected and the fender, 

which weighed 425 pounds, was raised to an almost upright position by the boom hoist on a 

hoist truck. The fender was then secured by connecting a portable ratchet hoist, commonly 

called a "come-along,"

1 to the top step2 on the fender and to an "eye piece" on the top of the rollover protective structure of the loader. 

By 4:30 p.m., Bouse had completed the brake repairs and wa~ attempting to get the wheel 

back onto the loader. Ronald Haanpaa and Vernon Abney, who had completed work for the day, 

offered to assist Bouse in completing his work. Haanpaa got into the hoist truck to lift the wheel 

back into position with the boom hoist. Abney got in the wheel well to guide the wheel back 

onto the axle and Bouse got on the hood of the loader to communicate between Haanpaa and 

Abney. When they still could not get the wheel on, Abney suggested that they completely 

remove the fender. He was coming out of the wheel well when the "come-along" failed, 

releasing the fender. The fender struck Abney in the forehead near the hair line and pushed his 

head back into the frame of the loader. Abney, who was not wearing a hard hat at the time, 

suffered massive head injuries and died as a result. 

MSHA began its investigation of the accident the next day. On July 21, 1997, three 

citations were issued to the operator as a result of the accident. Citation No. 7856213 alleges a 

violation of section 56.14211 (b) of the regulations, 30 C.F .R. § 56.14211 (b ), because: 11 0n June 

20, 1997 an employee was fatally injured when a raised fender of a 988A Caterpillar front end 

loader fell striking him. The portable hoist, which was used to secure the hinged 425 pound 

fender, failed. (Govt. Ex. l .) Citation No. 7856214 charges a violation of section 56.15002, 30 

C.F.R. § 56.15002, in that: "When (the employee] left his truck to assist with the loader repairs, 

he did not put on a hard hat where there was a danger of falling objects." (Govt. Ex. 1.) Finally, 

Citation No. 7856515 asserts a violation of section 56.141 OO(b), 30 C.F.R. § 56. 14 lOO(b), since: 

The portable hoist, which was used to secure the hinged 425 pound 

fender failed when the cable compression clamp broke. 

1 A "come-along" is "a little drum that a cable wraps around." The drum is in a frame 

which has a ratcheting device operated by a handle. As the handle is ratcheted in one direction, it 

rotates the drum, causing the cable to wrap around it. As it is ratcheted in the other direction, the 

cable is played out. The frame has a hook on one end and the cable extends out from the frame 

and has a pulley with a hook attached to it. (Tr. 283-84.) 

2 The fender bad steps on it to be used in climbing up on the loader. 

449 
(Govt. Ex. 1.) 

Additionally, it had loose bolts, the pulley bearing would not roll 

and the 3/16-inch cable was attached with a bolt marked "CAT." 

The cable had broken wires and the rating information was missing. 

The handle did contain a warning against unauthorized alteration. 

The foreman was directing a wheel assembly installation on the 

loader and allowed the defective equipment, which had been altered 

and not maintained, to be used. This constitutes more than 

ordinary negligence and is an unwarrantable failure to comply with 

the Standard.3 

The "come-along" failed because a compression thimble, or aluminum swedge sleeve, 

catastrophically collapsed. "This thimble is a soft aluminum sleeve that slides over the doubled 

cable and is compressed by a special swedging tool to form a permanent loo,p in the end of the 

cable." (Resp. Ex. 2 at 2.) This allowed the pu11ey hook to become unattached from the cable, 

releasing the hook and the fender. The catastrophic failure was caused by an outside event, 

probably the tire on the hoist cable, or the hoist cable itself, striking the fender. 

Findings of Fact and Conclusions of Law 

Citation No. 7856213 

This citation alleges a violation of section 56.1421 l(b) which provides that: "Persons 

shall not work on top of, under, or work from a raised component of mobile equipment until the 

component has been blocked or mechanically secured to prevent accidental lowering." Section 

56.14211 ( d), 30 C.F .R. § 56.14211 ( d), states that "a raised component of mobile equipment is 

considered to be blocked or mechanically secured if provided with a functional load-locking 

device or a device which prevents free and uncontrolled descent." 

The regulation is clear and unambiguous that the raised component can either be 

"blocked" or "mechanically secured.JJ The MSHA inspectors who testified were all of the opinion 

that the fender should have been blocked. Consequently, it is the Secretary's position that since 

the fender was not blocked, the standard was violated. Inasmuch as that position ignores the clear 

language of the rule, I find that argument without merit. On the other hand, the Respondent 

contends that the raised fender was mechanically secured by the "come-along." The evidence, 

however, demonstrates that the fender was not mechanically secured. 

3 This citation originally alleged a violation of section 56.14100(c). The citation was 

modified on November 13, 1997, to substitute the "Condition or Practice" set out above, to 

change the standard alleged to be violated and to charge that the violation was an 

"unwarrantable failure." 

450 
As section 56.1421 l(d) plainly states, if a functional load-locking device or a device 

which prevents free and uncontrolled descent is used the regulation is satisfied. In this case, such 

a device was not used. The "come-along" did not prevent free and uncontrolled descent of the 

fender when it struck Abney in the head. Since it fai led, the "come-along" was obviously not 

functional. Cf Western Fuels-Utah, Inc., 19 FMSHRC 994, 998 (June 1997) (requirement that 

conveyor belt be equipped with slippage and sequence switches means functional switches); 

Fluor Daniel, Inc., 18 FMSHRC 1143, 1145-46 (July 1996) (requirement that self-propelled 

mobile equipment be equipped with a service brake system means functioning system); Mettiki 

Coal Corp., 13 FMSHRC 760, 768 (May 1991) ("switches to be used to lock out electrical 

equipment must be equipped with.functioning lockout devices") (emphasis added). Therefore, I 

conclude that the operator violated the regulation. 

I reach this conclusion even though I accept the testimony of H. Boulter Kelsey, Wilson's 

mechanical engineering expert, that the "come-along" failed because of the unforseen, 

catastrophic collapse of a thimble on the cable. The Act imposes strict liability on mine operators 

for violation of the mandatory standards regardless of fault. Western Fuels-Utah v. Fed. Mine 

Safety & Health, 870 F.2d 71 J, 716 (D.C. Cir. 1989); Rock of Ages Corp., 20 FMSHRC 106, 11 4 

(February 1'998); Wyoming Fuel Co. , 16 FMSHRC 19, 2 I (January 1994 ). As the Commission 

has stated, "the principle of liability without fault requires a finding of liability even in instances 

where the violation resulted from unpreventable employee misconduct." Western Fuels-Utah, 

inc., 10 FMSHRC 256, 261 (March I 998). Likewise, the principle of liability without fault 

requires a finding ofliability in this case even though the failure of the "come-along" was 

unfore~eeable. 

Significant and Substantial 

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

substantial" (S&S) violation is described in Section I 04( d)( I) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, 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 l, 3-4 (January 1984), the Commission set out four 

criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, inc. v. 

FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 

(5th Cir. 1988), afj'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving 

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

operations." US Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of 

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

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

Coal Co., 9 FMSHRC 1007 (December 1987). 

451 
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. 

In view of Abney's fatal injuries, there can be little doubt that this violation satisfies the 

Mathies criteria. "Clearly, it was a significant contributing cause to the fatal accident." Walker 

Stone Co., Inc., 19 FMSHRC 48, 53 (January 1997). Consequently, I conclude that the violation 

was "significant and substantial." 

Citation No. 7856214 

Section 56.15002, which this citation alleges to have been violated, requires that: "All 

persons shall wear suitable hard hats when in or around a mine or plant where falling objects may 

create a hazard." The evidence is undisputed, and, indeed, the Respondent concedes, that Abney 

was not wearing his hard hat when he was struck by the fender. It is also undisputed that this was 

an area where hard hats were supposed to be worn. Accordingly, I conclude that the company 

violated this regulation. 

Significant and Substantial 

This violation is alleged to be "significant and substantial." The operator argues that 

Abney would have been killed even if he had been wearing a hard hat. The evidence to support 

this claim is the speculation of Mr. Kelsey based on his calculation of the force of the blow 

suffered by Abney. Mr. Kelsey, however, did not see the accident, or pictures of the accident, nor 

did he see the type of hard hat Abney was not wearing or even know what brand it was. 

On the other hand, Abney was not wearing a hard hat and he was killed by a blow to the 

head. There is no way to know what would have happened to him if he had been wearing a hard 

hat. Under those circumstances, I conclude that his failure to wear a hard hat reasonably 

contributed to his death and that the violation was, therefore, "significant and substantial." 

Citation No. 7856215 

This citation alleges a violation of section 56.141 OO(b ), which states: "Defects on any 

equipment, machinery, and tools that affect safety shall be corrected in a timely manner to 

prevent the creation of a hazard to persons." The citation lists the following defects in the "comealong": (1) loose bolts; (2) pulley bearing would not roll; (3) the cable was attached with a bolt 

labeled. "cat"; and (4) the cable had broken wires. As it turns out, none of these defects caused the 

accident. Despite that, if the defects affected safety, the standard was violated. In this case, the 

Secretary has not proved that the defects affected safety. 

The Commission has stated that: "The phrase 'affecting safety' ... has a wide reach and 

the 'safety effect on an uncorrected equipment defect need not be major or immediate to come 

452 
within that reach."' Ideal Cement Co., 13 FMSHRC 1346, 1350 (September t 991) (citations 

omitted). WhiJe the Secretary's witnesses characterized the "come-along" as a 11piece of junk" 

and reported that Bouse and Mr. Wilson had similarly described it, the Secretary has failed to 

demonstrate how the defects affected safety. 

Conversely, the Respondent has rebutted any inferences to be derived from the 

descriptions of the "come-aJong" with the testimony of Mr. Kelsey. He stated that the "Cat" bolt 

"enhanced the capacity" of the "corne-aJong. (Tr. 296.) With regard to the broken wires, he said: 

"I looked at the frame at the cable and about three or four strands were broken. It had nothing to 

do with the failure in this circumstance .... You can break probably half of the wires in this cable 

and still have it lift the 4,000 [pound] capacity." (Tr. 296-97.) In reply to a question about the 

pulley not rolling, he testified: 

It has no effect because the pulley was standing still for four 

and a half hours. This come-along was in a static loaded condition. 

There is no movement of the fender. There is no rolling back and 

forth. There is nobody cranking the handle. It is holding the fender 

in a locked, secured position for the time period prior to the 

catastrophic failure. There is no influence whatsoever by the pulley 

under those circumstances. 

(Tr. 297-98.) Finally, in answer to whether the "come-along" was a "piece of junk," he 

responded: 

Yeah, it's a piece of junk but ifs usable junk. It's usable 

junk like this that we have around in virtually every kind of shop in 

this country that people use all the time. It is not unsafe. It is not 

something that when you pick it up and look at it and say ("]oh, this 

thing could fail any minute["] because that just isn't the case. It is a 

piece of pretty well worn equipment. A lot of folks consider it junk 

but it's still usable. 

(Tr. 318-19.) (Emphasis added.) 

Clearly, the only defect affecting safety was the defect in the thimble. However, that 

defect was not visible. As Mr. Kelsey stated: 

The normal visualization of the surface would show some 

s[ er ]atching on the surface but nothing to indicate that a 

catastrophic failure was imminent by just looking at it. There is no 

evidence of that. Even after the fact the only way we can tell it's a 

catastrophic fai lure is by looking at it under a microscope. You 

still can't tell with just the naked eye. 

453 
(Tr. 306-07.) Since the defect was not apparent, the company cannot be faulted for not correcting 

it. 

The Secretary did not present any evidence on how the defects affected safety. At best, 

the testimony of the MSHA inspectors created an inference that the defects affected safety. The 

Respondent, however, has effectively rebutted this inference with the expert opinion of Mr. 

Kelsey. Because of his expertise, Mr. Kelsey's testimony is entitled to much greater weight than 

the opinions of the inspectors. Accordingly, I conclude that the company did not violate section 

56.141 OO(b) and will vacate the citation. 

Civil Penalty Assessment 

The Secretary has proposed penalties of $40,000.00 for the violation of section 

56.142 ll(b) and $25,000.00 for the violation of section 56.15002. 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. Sellersburg Stone Co. v. FMSHRC, 736 

F.2d 1147, 1151 (71

h Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996). 

· In connection with the penalty criteria, the parties stipulated that K.R. Wilson was a small 

company and that the operator demonstrated good faith in abating the violations. (Tr. 14-15.) 

The company's Assessed Violation History Report shows that it was only as~essed four $50.00 

violations during the two years preceding the violations in this case. Based on this, I find that the 

operator has a good history of violations. Finally, since the violations in this case resulted in a 

death, I find that both violations are of high gravity. 

In an attempt to show that its ability to remain in business will be adversely affected by 

the proposed penalties, the company has put into evidence an Accountants Review Report with 

attached financial statements. (Resp. Ex. 3.) The cover letter contains the following disclaimer: 

All information included in these financial statements is the 

representation of the management ofK.R. Wilson Contracting, 

Inc. 

A review consists principally of inquiries of Company 

personnel and analytical procedures applied to financial data. It is 

substantially less in scope than an audit in accordance with 

generally accepted auditing standards, the objective of which is the 

expression of an opinion regarding the financial statements taken as 

a whole. Accordingly, we do not express such an opinion. 

(Id. at 1.) This disclaimer is precisely the reason that unaudited financial statements are not 

sufficient to carry the operator's burden of establishing that a penalty will adversely affect the 

company's ability to remain in business. See Spurlock Mining Co., Inc., 16 FMSHRC 697, 700 

(April 1994). Con.Sequently, I conclude that the penalties in this case will not have a detrimental 

effect on K.R. Wilson's ability to remain in business. 

454 
The last penalty criterion is negligence. The Secretary has alleged a "high" level of 

negligence with regard to Citation No. 7856213. This is preswnably based on the defects found 

in the "come-along." However, in view of the fact that the apparent defects did not affect safety 

and that the defect which caused the accident was neither discernible nor foreseeable, I conclude 

that the level of negligence should be "low." 

The Secretary has asserted that the violation in Citation No. 7856214 resulted from 

"moderate" negligence. The evidence in this case indicates that Larry Bouse, the foreman in 

charge of the repairs to the loader, did not "like" hard hats and was "occasionally" lax in 

demanding that employees wear them. (Tr. 143, 371 .) Therefore, I conclude that this violation 

was caused by "high" negligence. 

Taking all of the penalty criteria into consideration, I assess a penalty of $15,000.00 for 

Citation No. 7856213 and $25,000.00 for Citation No. 7856214. 

Order 

Accordingly, Citation Nos. 7856213 and 7856214 are modified with regard to the level of 

negligence as set out above, and are AFFIRMED as modified, and Citation No. 7856215 is 

VACATED in Docket No. CENT 98-159-M. Citation Nos. 7855877 and 7855909 are 

AFFIRMED in Docket No. CENT 98-207-M. 

K.R. Wilson Contracting, Inc., is ORDERED TO PAY civil penalties of $40,688.00 

within 30 days of the date of this decision. 

Distribution: 

~~./--- T. Todd Hod;;T" 

Administrative Law Judge 

Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202-5716 

Michael 0. McKown, Esq., Zeircher & Hocker, P.C., 231 South Bemiston, 81h Floor, St. Louis, 

MO 63105 

/nj 

455 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

April 29, 1999 

GEORGIA MARBLE COMPANY, formerly 

BASINS INCORPORATED, 

Respondent 

DECISION 

Before: Judge Manning 

CIVIL PENAL TY PROCEEDING 

Docket No. WEST 99-89-M 

A.C. No. 48-00533-05545 

Basins Mill 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Georgia 

Marble Company ("Georgia Marble"), formerly "Basins Incorporated," pursuant to sections 105 

and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the 

"Mine Act"). The petition alleges three violations ofMSHA's safety standards. 

The parties filed a joint motion requesting that I assess civil penalties for the three alleged 

violations based on their joint stipulation of facts and the existing record in this case. Georgia 

Marble does not dispute that the conditions described in the three citations existed and that these 

conditions violated the cited safety standards. It contends, however, that the proposed penalties 

for the violations are too high, taking into consideration the six penalty criteria in section 11 O(i) 

of the Mine Act. Determination of the amount of the penalty that should be assessed for a 

particular violation is committed to a judge's discretion, bounded by proper consideration of the 

penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 293-94 (March 1983); nff'd, 736 F.2d 

1147 (71

h Cir. 1984). 

I. STIPULATED FACTS 

The parties stipulated to the following facts: 

1. The Assessed Violation History Report attached to the motion is accurate. This report 

shows that 26 citations were issued at the Basins Mill in the 24 months preceding November 3, 

1998. All of the citations were issued under section 104(a) of the Mine Act; 9 of them were 

designated as being of a significant and substantial nature ("S&S"), and 17 were not S&S. 

456 
2. Georgia Marble stipulates to the facts set forth in the three citations, including but not 

limited to the MSHA inspector's designations as to the nature of the violation and gravity. 

3. For the purpose of this case only, the Secretary stipulates to all the statements set forth 

in Georgia Marble's answer dated March 9, 1999, except to the extent that any statement may 

contradict the citations at issue. 

4. Georgia Marble is subject to the jurisdiction of the Mine Act. 

5. The administrative law judge has jurisdiction in this case. 

6. Georgia Marble demonstrated good faith in abating the violations. 

7. Georgia Marble operates a non-coal mine. The number of hours worked at the mine in 

calendar year 1997 was 90,847 and the number of hours worked by the controlling entity in 

calendar year 1997 was 1,090,900. 

8. The payment of the penalties proposed by the Secretary in this case would not impair 

Georgia Marble's ability to continue in business. 

The answer filed by Georgia Marble provides some general information about this case 

as well as specific information about each of the violations. In pertinent part, the general 

information is as follows: 

Georgia Marble has made a conc~rted effort to focus on 

safety at the Basins Mill. Significant changes to the management 

structure have been made, most significantly with the replacement 

of Mr. ... with the writer [Howard Scotland]. The receipt of 

twenty-one citations during the course of the February 1998 

inspection indicated not only that greater attention to safety was 

required but that the administration of the safety program needed 

improvement. As the new plant manager, I have enjoyed the 

complete support of Georgia Marble's upper management in this 

regard and I have been able to substantially improve the safety 

program at the Basins Mill. I believe that my assertion is not 

hollow but in fact [is] illustrated by the results of the 1114/98 

inspection. The receipt of three citations in lieu of a repetition of 

past events demonstrates that tangible change has occurred. 

[T]he improvement made to better the cited condition has 

extended well beyond those noted by the [MSHA] inspector upon 

the close of his inspection. Each item has been reviewed and 

actions taken, which in two cases involved costs more than three 

times the amount of the proposed assessment. 

457 
In summary, Georgia Marble has made a considerable 

effort at the Basins Mill to improve the administration of th~ safety 

program and to eliminate conditions that might lead to future 

citations. Cited deficiencies were promptly corrected, but more 

importantly additional funds have been spent to preclude their reoccurrence and facilitate better protection. In keeping with our 

demonstrated effort and visible reduction in the quantity of 

citations received during our last inspection, Georgia Marble 

requests that the proposed penalties be reduced to reflect a clear 

and conscious safety effort. 

II. STIPULATED FACTS CONCERNING THE CITATIONS 

Georgia Marble operates the Basins Mill in Platte County, Wyoming. On November 4, 

1998, the mill was inspected by MSHA and three citations were issued under section 104(a) of 

the Mine Act. 

A. Citation No. 4338681 

Citation No. 4338681 alleges a violation of 30 C.F.R.§ 56.12013(b), as follows: 

At the south bagger area stairway, a cable tray. In this tray are 

electric cables that the outer jacket that is pulled back exposing the 

inner wires. Outer jackets are designed to provide damage 

protection for electric cables. No exposed copper observed. 

Under gravity, the inspector determined that an injury was unlikely, that if an injury 

occurred it would likely be fatal for one person, and that the violation was not S&S. He also 

determined that Georgia Marble's negligence was moderate. Section 56.12013(b) provides, in 

part, that "[p ]ermanent splices and repairs made in power cables ... shall be: insulated to a degree 

at least equal to that of the original, and sealed to exclude moisture." The citation indicates that 

Georgia Marble abated the violation by taping up the cables and providing damage protection 

where needed. The Secretary proposes a penalty of $1, 122 for the violation. 

In its answer, Georgia Marble states: 

The subsequent action document states that the cables were taped 

and protected from damage. I would like to note that the trays in 

question have been removed completely and replaced with [a] new 

tray and protected wires. The cables in question no longer exist 

and the new installation provides for the protection of the wiring 

from dust, dirt, and any impacts that might damage the conductor 

insulation. The approximate cost of the new installation was 

458 
$4,000 and I believe it illustrates our desire to not only correct the 

deficiency but also take the extra step to preclude a re-occurrence. 

B. Citation No. 4338682 

Citation No. 4338682 alleges a violation of30 C.F.R.§ 56.12016, as follows: 

Upon inspection of the south feed belt. This belt is under repairs at 

this time the guards on the head are removed. When checked at the 

mcc it was found that the belt was not locked out to prevent an 

unwanted start up. 

Under gravity, the inspector determined that an injury was reasonably likely, that if an 

injury occurred it would likely be fatal for two people, and that the violation was S&S. He also 

determined that Georgia Marble's negligence was moderate. Section 56.12016 provides, in part, 

that "( e ]lectrically powered equipment shall be deenergized before mechanical work is done on 

such equipment" and that "[p ]ower switches shall be locked out or other measures taken which 

shall prevent the equipment from being energized without the knowledge of the individuals 

working on it." The citation indicates that Georgia Marble abated the violation by locking out 

the power switch. The Secretary proposes a penalty of $1,771 for the violation. 

In its answer, Georgia Marble states: 

The citation ... has been followed up with a thorough 

review of proper lock out and tag out procedures with all hourly 

and salaried employees. This review has been incorporated into 

multiple Part 48 training sessions and documented. Additionally, 

this procedure is thoroughly reviewed with any contractors doing 

work on our site. 

C. Citation No. 4338683 

Citation No. 4338683 alleges a violation of 30 C.F .R. § 56.12008, as follows: 

At dust area the platform scale. This scale when inspected it was 

found that the 11 Ov power cable was not properly entered into the 

electrical compartment of the scale. 

Under gravity, the inspector determined that an injury was unlikely, that if an injury 

occurred it would likely be fatal for one person, and that the violation was not S&S. He also 

determined that Georgia Marble's negligence was moderate. Section 56.12008 provides, in part, 

that "[p ]ower wires and cables shall be insulated adequately where they pass into or out of 

electrical. compartments'' and that "[ c )ables shall enter metal frames of ... electrical compartments 

459 
only through proper fittings." The citation indicates that Georgia Marble abated the violation by 

talcing the scale out of service. The Secretary proposes a penalty. of $1, 122 for the violation. 

In its answer, Georgia Marble states: 

The scale in question is in the process of being replaced. 

The new installation has been designed to better protect the 

connection cited by the inspector. The cost of the new scale and 

welded structure [is] approximately $3,500. 

III. APPROPRIATE CIVIL PENAL TIES 

In assessing appropriate penalties in this case, I assume that the violations of the 

Secretary's safety standards occurred as set forth in the citations. Although the citations were not 

drafted using complete sentences, they are c~ear enough to understand what conditions were cited 

by the MSHA inspector. I also accept the inspector's gravity and negligence determinations, as 

well as his S&S characterizations. Finally, based on the parties' stipulation, I accept as fact the 

information presented by Georgia Marble, as set forth above. I find that this information does 

not contradict the conditions described in the citations. 

Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. The penalties proposed by the Secretary in this case are higher than 

the penalties proposed for previous violations at the Basins Mill in 1998 as evidenced by the 

Assessed Violation History Report. The Secretary's proposed assessment attached to her petition 

for assessment of penalty shows that MSHA assigned the maximum number of points for history 

of previous violations under her penalty formula at 30 C.F.R.§ 100.3(c) for the three violations in 

this case. The penalties are higher in this case because of the relatively high history of violations 

at the Basins Mill. In essence, Georgia Marble is asking that I give more weight to the other 

penalty criteria, including the good faith criterion, when I assess penalties in this case. 

Under the Mine Act, the Secretary's penalty proposals are not binding on the 

Commission's administrative law judges. Penalties assessed by a Commission judge can be 

greater than, less than, or the same as those proposed by the Secretary so long as the judge 

properly considers all of the penalty criteria. The criteria need not be given equal weight. My 

analysis of the penalty criteria is as follows: 

A. The Operator's History of Previous Violations 

As stipulated, Georgia Marble was issued 9 S&S citations and 17 non-S&S citations 

during the 24 months preceding the issuance of the citations in this case. This history is high 

given the size of the Basins Mill. 

460 
B. The Appropriateness of the Penalty to the Size of the Business 

As stipulated, the number of hours worked at the Basins Mill in calendar year 1997 was 

90,847 and the number of hours worked by all employees of the controlling entity in calendar 

year 1997 was 1,090,900. The mine and the controlling entity are moderate in size. 

C. Whether the Operator was Negligent 

As stipulated, Georgia Marble's negligence was moderate for all citations. 

D. The Effect on the Operator's Ability to Continue in Business 

As stipulated, the penalties proposed by the Secretary will not adversely affect Georgia 

Marble's ability to continue in business. 

E. The Gravity of the Violation 

Based on the stipulations, I find that Citation No. 4338682 was serious and was S&S. 

The other violations were not S&S and were not as serious. 

F. Demonstrated Good Faith in Attempting to Achieve Rapid Compliance 

Based on the stipulations, I find that Georgia Marble demonstrated good faith in 

achieving rapid compliance with the cited safety standards after issuance of the citations. 

G. Determination of Appropriate Civil Penalties 

In determining appropriate penalties, I take into consideration all of the penalty criteria, as 

discussed above. The assessed penalties are lower than those proposed by the Secretary because 

I gave more weight to the gravity of the violations, Georgia Marble's negligence, and Georgia 

Marble's efforts to abate the underlying conditions cited by the inspector. I gave less weight to 

the history of previous violations criterion. As stated in the stipulations, the Basins Mill was 

under new management at the time of the inspection and management was taking steps to 

improve the safety conditions at the facility. As a consequence, I believe that it is appropriate to 

place less emphasis on the history of previous violations criterion than would normally be the 

case. 

461 
III. ORDER 

Based on the criteria in section l IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 

4338681 

4338682 

4338683 

30 C.F.R. § 

56.12013(b) 

56.12016 

56.12008 

Penalty 

$400.00 

800.00 

400.00 

Accordingly, the parties' motion to assess appropriate civil penalties for the citations in 

this case based on stipulated facts and the existing record without a hearing on the merits is 

GRANTED. The citations listed above are AFFIRMED as issued and Georgia Marble 

Company is ORDERED TO PAY the Secretary of Labor the sum of$1,600 within 40 days of 

the date of this decision. 

Distribution: 

Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202-5716 (Certified Mail) 

Howard Scotland, Plant Manager, Georgia Marble Co., P.O. Box 845, Wheatland, WY 82201 

(Certified Mail) 

RWM 

462 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET, N. W., 6Tu FLOOR 

WASHINGTON, D. C. 20006-3868 

SECRET ARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PATTERSON MATERIALS 

CORPORATION, 

Respondent 

April 7, 1999 

CIVIL PENAL TY PROCEEDING 

Docket No. YORK 99-30-M 

A. C. No. 30-03138-05511 

Wingdale Mine 

ORDER ACCEPTING LATE FILING 

ORDER DIRECTING OPERATOR TO ANSWER 

On March 17, 1999, an order was issued directing the Secretary to show cause why this 

case should not be dismissed for failure to timely file the penalty petition. 

On March 22, 1999, the Commission received the Solicitor's penalty petition for the one 

violation involved in this case. The Solicitor also filed a motion to accept late filing together 

with a sworn statement. According to the Solicitor, this case and another civil penalty proceeding involving this operator, Docket No. YORK 98-43-M, were assigned to her. The Solicitor 

states that she confused this matter with YORK 98-43-M and inadvertently filed this case in the 

file folder for YORK 98-43-M. On the evening of March 18, 1999, in the course of a routine 

review of her files, the Solicitor discovered the error, and mailed the petition and motion on the 

next day, March 19, 1999. 

Commission Rule 2700.28(a), 29 C.F.R. § 2700.28(a), requires that a penalty petition be 

filed within 45 days from receipt of the operator's penalty contest. The contest in this case was 

received on January 26, 1999, and the petition was due on March 12, 1999. Filing is effective 

upon mailing and the petition was mailed on March 19, 1999. 29 C.F.R. § 2700.5(d). 

Therefore, the petition was 7 days late. 

On March 26, 1999, the operator filed a motion to dismiss. The operator asserts that the 

reasons offered by the Solicitor do not constitute adequate cause for the late filing of the penalty 

petition. According to the operator, some sort of inevitable outside force rather than a selfcreated problem, such as misfiling, can constitute adequate cause. The operator further contends 

that the Solicitor would not have been aware of the late filing were it not for the show cause 

order. Finally, the operator asserts that it will be prejudiced, along with all other similarly 

situated operators, if the motion is granted because the Secretary will be able to justify any late 

filing by claiming clerical lapses or other manner of inadvertence or inattention. 

The Commission permits late filing of penalty petitions where the Secretary demonstrates 

463 
adequate cause for the delay and where the respondent fails to show prejudice from the delay. 

Salt Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981 ). The Secretary must 

establish adequate cause apart from any consideration of whether the operator was prejudiced. 

Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989). 

A determination of adequate cause is based upon the reasons offered and the extent of the 

delay. I have accepted late filings where the Solicitor has claimed that delays were caused by clerical 

errors in handling cases. In Apac Oklahoma, Docket No. CENT 97-187-M, unpublished (December 

16, 1997) (attached), a petition that was 24 days late was accepted where the case was inadvertently 

placed with another file and overlooked. In M. Jamieson Company, 12 FMSHRC 90 l (March 1990), 

a late petition was permitted where the delay was relatively short and the file had been erroneously 

placed in with another matter involving the same operator. However, I have not permitted late 

filings based on mishandling of cases where the delay was lengthy. Phelps Dodge Morenci Inc., 

1993 WL 395589 (June 1993); Lawrence Ready Mix Concrete Corp., 6 FMSHRC 246 (Feb 1984). 

Nor I have accepted a late penalty petition where the Solicitor claimed that the case was mishandled 

when he had referred the matter to MSHA under the Alternate Case Resolution Initiative (ACRI). 

Swenson Granite Company. LLC, 20 FMSHRC 859 (August 1998). In Swenson, I held that sending 

the case to MSHA did not excuse the Solicitor from his responsibility of filing required pleadings. 

The circumstances in this case are similar to those cited above where late filing was 

permitted. The delay here was very short and the error was discovered by the Solicitor herself. 

The operator's assertion that the show cause order alerted the Solicitor to the delay is unfounded. 

The Solicitor's sworn statement that she discovered the error upon her own review of her files is 

supported by the return receipt card in the Commission's file showing that the Solicitor did not 

receive the show cause order until March 24, 1999. Under these limited circumstances, I find 

that the Solicitor has demonstrated adequate cause for the short delay. In addition, I find there is 

no prejudice from the seven day delay. 

In light of the foregoing, it is ORDERED that the Solicitor's late filed penalty petition is 

ACCEPTED. 

It is further ORDERED that the operator filed its answer to the penalty petition within 30 

days of the date of this order. 

Paul Merlin 

Chief Administrative Law Judge 

464 
Attachment 

Distribution: (Certified Mail) 

Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Department of Labor, 201 Varick Street, Room 

707, New York, NY 10014 

John F. Klucsik, Esq., Devorsetz, Stinziano, Gilberti, Heintz& Smith, P.C., 555 East Genesee Street, 

Syracuse, NY 13202-2159 

/gl 

465 
attachment 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., 6TH FLOOR 

WASIDNGTON D •. C. 20006-3868 

December 16, 1997 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

AP AC OKLAHOMA, IN CORPORA TED, 

Respondent 

CIVIL PENAL TY PROCEEDING 

Docket No. CENT 97-187-M 

A. C. No. 34-00050-05551 

East Quarry 

ORDER ACCEPTING LA TE FILING 

ORDER OF ASSIGNMENT 

On November 10, 1997, the Commission received the Solicitor's penalty petition for the 

two violations involved in this case. The Solicitor also filed a motion to accept late filing setting 

forth the reason for the delay. According to the Solicitor, the operator's penalty contest was 

forwarded to the Solicitor's office on September 10, 1997. However due to a clerical error, the 

case was inadvertently placed with another file and overlooked. The Solicitor further states that 

the enormous number of files handled by the Solicitor's office also contributed to the untimely 

filing. 

Commission Rule 2700.28(a), 29 C.F.R. § 2700.28(a), requires that the penalty petition 

be filed within 45 days from receipt of the operator's penalty contest. The contest was received 

on August 28, 1997, and the petition was due on October 14, 1997. 29 C.F.R. § 2700.8. Filing 

is effective upon mailing and the petition was sent on November 7, 1997. 29 C.F.R. § 2700.5(d). 

Therefore, the petition was 24 days late. 

On December 4, 1997, the operator filed an answer along with an opposition to the 

Solicitor's motion to accept late filing. The operator asserts that the Solicitor 's motion should 

be denied and the case dismissed because the Solicitor failed to comply with Commission rules 

for filing a petition. The operator further states that it has not been prejudiced by the delay but 

that it will be prejudiced if the Solicitor is allowed to proceed without consequences for his 

untimely filing. Counsel does not allege actual prejudice from the delay. 

The Commission has not viewed the 45 day requirement as jurisdictional or as a statute 

of limitation. Rather, the Commission has permitted late filing of penalty petitions upon a 

showing of adequate cause by the Secretary where there has been no showing of prejudice by 

the operator. Salt Lake County Road De,partment, 3 FMSHRC 1714, 1716 (July 1981); 

466 
Rhone-Poulenc ofWyomini Co., 15 FMSHRC 2089 (Oct. 1989). There has been no showing of 

prejudice in this case. I find the Solicitor's representations as to the inadvertent mishandling of 

this case constitute adequate cause for the relatively short delay in the filing of the penalty 

petition which should not prejudice the operator•s presentation of its case. However, I take 

note that the Solicitor's statement with respect to a heavy caseload is not supported by the 

Commission's own records which show that the number of new cases filed has decreased. 

In light of the foregoing, it is ORDERED that the Solicitor•s late filed penalty petition is 

ACCEPTED. 

It is further ORDERED that this case be assigned to Administrative Law Judge 

David Barbour. 

All future communications regarding this case should be addressed to Judge Barbour at 

the following address: 

Federal Mine Safety and Health 

Review Commission 

Office of Administrative Law Judges 

Two Skyline Place, Suite 1000 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-5232 

Telephone No. 703-756-6201 (Fax) 

-- Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

David Rivela, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 

501, Dallas, TX 75202 

Timothy E. Bixler, Esq., APAC, Inc., Law Department, 900 Ashwood Parkway, Suite 700, 

Atlanta, GA 30338 

/gl 

467 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., 6rn FLOOR 

WASHINGTON, D.C. 20006-3868 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BOWEN INDUSTRIES 

TN CORPORA TED, 

Respondent 

April 26, 1999 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 98-268-M 

A. C. No. 29-01882-05502 LUO 

Ivanhoe Concentrator 

ORDER LIFTING STAY 

DECISION DISAPPROVING SETTLEMENT 

ORDER TO SUBMIT INFORMATION 

Before: Judge Merlin 

On December 8, 1998, this case was stayed pending a final determination by the 

Secretary whether to pursue actions under Section 1 lO(c). The parties have now filed a joint 

motion to approve settlement. Therefore, the stay previously entered is hereby LIFTED. 

The parties' settlement motion seeks a penalty reduction for the one violation involved 

from $1,600 to $188. 

Aside from the substantive deficiencies discussed infm, I would not approve this motion. 

The motion was signed and filed by an individual who styles herself as a law clerk. Although the 

motion contains the names of three Solicitors in ascending degrees of responsibility, none of 

them has signed the motion. Commission Rule 2700.3, 29 C.F.R. § 2700.3, sets forth the 

individuals and categories of individuals who are permitted to practice before the Commission. 

Under subparagraph (a) attorneys are permitted to practice and under subparagraph (b) a non 

attorney may practice if he is a party, a representative of miners or certain designated individuals 

associated with specified entities. The individual who signed and filed the settlement motion in 

this case is not an attorney and is not one of the described non attorneys allowed to appear before 

the Commission. Subparagraph (c) permits any other person to practice with the approval of the 

presiding judge or the Commission. My approval has not been sought for the appearance of the 

individual in question. 

This purported filing from the Dallas Office of the Solicitor is in contrast to procedures 

previously followed by the national Office of the Solicitor in seeking permission for non 

attorneys to appear before the Commission. In 1994, when the Office of the Solicitor wished to 

have Conference and Litigation Representatives (CLR) appear on behalf of the Secretary in mine 

safety cases, information was furnished regarding the training and credentials of these individu468 
als. Cyprus Emerald Resources Corp., 16 FMSHRC 2359(November1994). Thereafter, in 

every case where a CLR wishes to represent the Secretary, he has filed a motion for permission 

to appear. When a supplemental settlement motion is filed in this case, as ordered infra, it must 

be signed by an attorney in the Office of the Solicitor or it will not be approved. 

The subject citation was issued under section 104(d)(l) of the Mine Act for a violation of 

30 C.F.R. § 56.11027 which provides: 

Scaffolds and working platforms shall be of substantial construction and 

provided with handrails and maintained in good condition. Floor boards shall be 

laid properly and the scaffolds and working platforms shall not be overloaded. 

Working platforms shall be provided with toeboards when necessary. 

The citation describes the alleged violation as follows: 

Bowen Industries, Inc. a sub-contractor at the plant failed to provide 

adequate scaffolds for employees to use when installing a iron beam on a wall at 

the maint-shop. Employee was observed standing on top of scaffold railing trying 

to reach the iron beam to weld on. The employee did have his safety wear, but 

was secured 4/5 foot below him for security, exposing the employee to a potential 

fall hazard if accidentally slipping and falling. The company inspector Li.llian 

Medina had warned the employees on 4-9-98 of them not using the proper 

scaffolding and stopped operations until proper scaffolding was erected to 

continue the operations. 

Employees admitted that Ms. Medina had warned them of not following 

company safety policies and needed to erect a proper platform. 

The inspector subsequently mod1fied the citation to add the following information to the 

condition or practice: 

Supervisor and employees knew of inadequate scaffold, the company 

safety inspector on 04-09-1998 stopped the operation on welding informing 

employee that they needed an adequate work platform to work off or to extend 

scaffolding. Employee elected not to fix work platform. This violation is an 

unwarrantable failure. 

The standard sets forth requirements for the construction of scaffolds and working 

platforms, mandating that they be of substantial construction with handrails and properly laid 

floor boards and where necessary, with toeboards. Also they must not be overloaded. The 

citation, however, does not find that the scaffold was improperly constructed, lacked any of the 

items described, or was overloaded. Rather, it fow1d the scaffold was inadequate because the 

employee was standing on top of the scaffold's railing trying to reach an I-beam. The condition 

described by the inspector therefore, had nothing to do with the scaffold itself but with its 

location. The problem was one of safe access to the I-beam and not any deficiencies in the 

469 
characteristics of the scaffold. Accordingly, it does not appear that the standard cited applies to 

the situation set forth in the citation. The parties must address this issue in the supplemental 

motion. 

Even assuming the cited standard applies, the settlement motion is deficient. The motion 

merely states that further investigation reveals the degree of negligence and likelihood of injury 

should be modified. It alleges that upon further investigation the Secretary has determined there 

is insufficient evidence to support the conclusion that the operator knew of the violation. This 

allegation is contrary to the citation and its modification which expressly state that just a few 

days previously the company inspector found employees using scaffolding that did not reach and 

told them the scaffolding should be extended. If true, this prior misconduct by employees called 

for heightened supervision by the operator. In any event, the representations in the motion must 

be reconciled with the statements in the citation and if the citation is in error, the motion must 

say so. 

The motion also represents that gravity should be less than originally found because the 

employee was wearing a safety harness. But the citation recognizes that although a harness was 

worn, it was tied off at the wrong place. The motion must identify those factors which justify a 

finding of reduced gravity. 

Finally, the motion seeks a penalty reduction of 85% and a modification of the citation to 

one issued under section 104(a) citation, but the generalized and unsupported statements in the 

motion do not justify such actions. The motion states that the operator's size, history and good 

faith have been reviewed and are set forth in Exhibit A to the penalty petition. A printout 

attached to the assessment sheet indicates that the operator had two violations in July and one 

violation in September, but the number of inspection days is not given so I do not know whether 

this is a good, average or bad history. Also, there is no information about size and ability to 

continue in business. The Commission has held that the judge must consider all six criteria when 

assessing a penalty. Sec. of Labor on behalf of James Hyles. et al. v. All American As..phalt, 

21 FMSHRC 34, 56-57 (Jan. 1999); Sec. Labor on behalf qfKenneth Hannah. et al. v. Consolidation Coal Co., 20 FMSHRC 1293, 1302-1303 (Dec. 1998); Sec. Labor on behalf of Richard 

Glover v. Consolidation Coal Co., 19 FMSHRC 1529, 1539 (Sept 1997). 

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 Solicitor and the 

operator submit appropriate information to support their settlement request. Otherwise, this case 

will be set for hearing. 

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

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Distribution: (Certified Mail) 

Tom Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, Room 420, 4015 

Wilson Boulevard, Arlington, VA 22203 

Raquel Tamez, Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, 

Dallas, TX 75202 

Mr. Alfredo Ontiveros, Safety Director, Bowen Industries Incorporated, 9801 Carnegie Avenue, 

El Paso, TX 79925 

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471 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W. 6TM FLOOR 

WASHINGTON D.C. 20006-3868 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

RAYNE ENERGY IN CORPORA TED, 

Respondent 

April 29, 1999 

CIVIL PENAL TY PROCEEDING 

Docket No. PENN 99-77 

A. C. No. 36-00930-03603 

Rayne No. 1 

DECISION DISAPPROVING SETTLEMENT 

ORDER TO RESUBMIT SETTLEMENT MOTION 

Before: Judge Merli,!l 

This case is before me upon a petition for assessment of civil penalties under section 

105(d) of the Federal Mine Safety and Health Act of 1977. On March 15, 1999, I issued a 

prehearing order directing the parties to discuss settlement. On April 12, 1999, a settlement 

motion was filed by the Secretary. 

I cannot approve this motion. The motion was signed and filed by an individual who 

describes herself as a paralegal. Although the motion contains the names of three Solicitors in 

ascending degrees of responsibility, none of them has signed the motion. Commission Rule 

2700.3, 29 C.F.R. § 2700.3, sets forth the individuals and categories of individuals who are 

permitted to practice before the Commission. Under subparagraph (a) attorneys are permitted to 

practice and under subparagraph (b) a non attorney may practice if he is a party, a representative 

of miners or certain designated individuals associated with specified entities. The individual 

who signed and filed the settlement motion in this case is not an attorney and is not one of the 

described non attorneys allowed to appear before the Commission. Subparagraph ( c) permits any 

other person to practice with the approval of the presiding judge or the Commission. My 

approval has not been sought for the appearance of the individual in question. I know nothing of 

the qualifications and training of this person. The settlement motion filed in this case must be 

signed ·by an attorney in the Office of the Solicitor or it will not be approved. 

472 
This purported filing from the Philadelphia Office of the Solicitor is in contrast to 

procedures previously followed by the national Office of the Solicitor in seeking permission for 

non attorneys to appear before the Commission. In 1994, when the Office of the Solicitor 

wished to have Conference and Litigation Representatives (CLR) appear on behalf of the 

Secretary in mine safety cases, information was furnished regarding the training and credentials 

of these individuals. Cyprus Emerald Resources Corp., 16 FMSHRC 2359 (November 1994). 

Thereafter, in every case where a CLR wishes to represent the Secretary, he has filed a motion 

for permission to appear. The Regional Solicitor is welJ aware of the procedures followed with 

respect to CLRs. 

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 settlement 

motion be resubmitted and signed by an attorney in the Office of the Solicitor. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Tom Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, Room 420, 4015 

Wilson Boulevard, Arlington, VA 22203 

B. Anne Gwynn, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market Street, 

Gateway Building, Room 14480, Philadelphia, PA 19104 

Joseph A. Yuhas, Esq., Rayne Energy Inc., P. 0. Box 25, Barnesboro, PA 15714 

/gl 

473 
474