JANUARY AND FEBRUARY 2006 

COMMISSION DECISIONS AND ORDERS 

01-17-2006 Marfork Coal Company, Inc. 

01-23-2006 H.B. Mellott Estate, Inc. 

02-07-2006 R. J. Cincotta Company, Inc. 

02-23-2006 Southern Nevada Paving 

02-27-2006 Williams & Sons Slate & Tile, Inc. 

02-27-2006 IO Coal Company, Inc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-10-2006 National Cement Co. Of California, Inc. 

01-20-2006 Floyd Dowlin, ill v. Western Energy Co. 

01-24-2006 San Juan Coal Company 

01-26-2006 Sec. Labor o/b/o David Bagley, et al. v. 

Jim Walter Resources, Inc. 

01-31-2006 FMC Corporation 

02-08-2006 Xavier F. Gonzalez v. Rinker Materials Corp. 

02-24-2006 Weirich Brothers Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

02-28-2006 Black Hawk Mining 

02-28-2006 R. J. Cincotta Company, Inc. 

i 

WEV A 2006-63 

WEV A 2006-70-R 

YORK 2005-116-M 

WEST 2006-100-M 

PENN 2006-75-M 

WEV A 2006-86 

WEST 2004-182-RM 

WEST 2004-492-D 

CENT 2004-212 

SE 2005-239-D 

WEST 2005-178-M 

WEST 2005-288-DM 

CENT 2005-24-M 

WEV A 2006-22 

YORK 2005-116-M 

Pg. 1 

Pg. 5 

Pg. 7 

Pg. 10 

Pg. 13 

Pg. 17 

Pg. 21 

Pg. 23 

Pg. 35 

Pg. 48 

Pg. 50 

Pg. (j4 

Pg. 66 

Pg. 82 

Pg. 85 
•. · 

'. 
JANUARY AND FEBRUARY 2006 

Review was granted in the following cases during the months of January and Februazy: 

Secretary of Labor, MSHA v. Hanson Aggregates New York, Inc., Docket No. YORK 2005-22-M. 

(Judge Hodgdon, November 21, 2005) 

Secretary of Labor, MSHA v. Speed Mining, Inc., Docket Nos. WEVA 2005-20-R, etc. 

(Judge Weisberger, December 2, 2005) 

Review was denied in the following cases during the months of January and February: 

Crimson Stone v. Secretary of Labor, MSHA, Docket No. SE 2005-325-RM. (Judge Melick, 

December 30, 2005) 

National Cement of California v. Secretary of Labor, MSHA and Tejon Ranchcorp., Docket No. 

WEST 2004-182-RM. (Judge Feldman, January 10, 2006) 

ii 
•I 

• •,,t ' • ,: 1 I 
COMMISSION ORDERS 
,.· 
FEDERAL MINE SAFETY·AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, · 

MINE SAFETY AND·HEALTH 

ADMINISTRATION (MSHA) 

V. 

601-NEW JERSEY AVENUE.- NW 

SUITE9500 

WASHINGTON, DC 20001 

January 17, 2006 

. Docket No. WEV A 2006-63 

A.C. No. 46-08551-62061 

MARFORK COAL COMP ANY, INC . . 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On December 22, 2005, the Commission received from 

Marfork Coal Company, Inc. ("Marfork") a motion1 made by counsel 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 who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. 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). 

On July 14, 2005, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued to Marfork a proposed penalty assessment that included a proposed penalty for 

a citation issued to the company by MSHA on June 6, 2005, Citation No. 7242070. Mot. at 1. 

Marfork states in its motion that although the company's safety director indicated on the 

assessment form the company's intention to contest the penalty proposed for Citation No. 

1 Included with Marfork's motion is a copy of the proposed penalty assessment and 

underlying citation at issue, and an unswom statement by Jonah Bowles, Marfork's Safety 

Director. 

28FMSHRC l 
7242070 and 'gave llie form tb the company:'·s administrative staff for mailing,· "through mistake 

and inadvertence, Marfork failed to mail in its co~test.'! Id. and Statement of J. Bowles, Safety 

Director. In a response to Marfork's motion, ~e. Secretary of Labor states that she requires 

additional information before she can expr~s her position on the operator's motion. Sec'y Resp. 

at 1-2. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final·Commission orders under section 105(a). "Jim 

Walter Res., Inc. , 15 FMSHRC 782, 786-89(May1993) {"JWR"). In evaluating;requests fo 

reopen final section 105(a) orders, the Commission has found guidance in RU1e-60{b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of.the Comniission on the basis of inadvertence or mistake. See 29 C.F.R. 

§ 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure''); JWR, 15 FMSHRC at 787. We have also observed that defaultis a · . 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

See Coal Prep. Servs., Inc;, 17 FMSHRC 1529, .1530 {Sept. 1995). 

28FMSHRC2 
Having reviewed Marfork's motion, in the interests of justice, we remand this matter to. 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Marfork' s failure to timely contest the penalty proposal and whether relief from the final order·. 

should be granted. If it is determined that such relief is appropriate, this case: sball proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

~~ .£\--, . ) 

Mi~ 

28FMSHRC3 
Distribution 

M.' Shane Harvey, Esq. 

Massey Coal Services, hie. 

315 1ot11 Sfreet · 

Charleston, WV 25304 

W. Christian Schumann, Esq. 

Office of the Solicitor · . 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor·w est 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review o~ission 

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

Washington, D.C. ·20001-2021 ·· 

. ·,': .. 

•' · · ::. : 1· 

2RFMSHRC4 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

H.B. MELLOTT ESTATE, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 23, 2006 

Docket No. WEV A 2006-70-M 

A.C. No. 46.:.08972-74689 

ORDER "· · 

: · . .... 

This matter arises under the Federal Mine Safety and Health Actof 197.7, 30 U.S.C . .. 

§ 801 et seq. (2000) (''Mine Act"). On January 10, 2006, the Commission received from H.B. 

Mellott Estate, Inc. (''Mellott'') a motion made by counsel 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). On January 12, 2006, Mellott filed a Withdrawal of Motion to Reopen Penalty 

Assessment in which the company requested that it be allowed to withdraw its motion to reopen. 

In support of this request, Mellott states that the Department of Labor's Mine Safety and Health 

Ad.ministration advised Mellott that the "assessment matter'' that was the subject ofMellott's 

January 10 motion was in fact "still open." Mot. at 1. Mellott states that it subsequently filed a 

contest of the penalty at issue on January 11, 2006. Id. 

In light of the foregoing, the Commission grants Mellott's request to withdraw its motion 

to reopen. 29 C.F.R. § 2700.11. Accordingly, this proceeding is dismissed. 

For the Commission: 

28FMSHRC5 
Distribution 

Adele L. Abrams, Esq. 

Law Office of Adele L. Abrams, P.C. , 

4 7 40 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department ofLabor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Myra James, Chief 

Office of Civil Penalty Compliance 

Mine Safety & Health Administration 

U.S. Department of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA.22209-3939 

. ... . . . 

. . . ' 

.. . , .. ·· 

28FMSHRC6 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARYOf LABOR, 

MINE. SAFEIT AND HEALTH 

ADMJNISTRATION (MSHA) 

601 NEW JERSEY.AVENUE; NW . 

SUITE9500 · 

WASHINGTON, DC 20001 · 

Febmary 6,.2006 

v. 

Docket No. YORK 2005-116-M 

A.C. No. 19:.01114.;56147 

R.J. CINCOtTA COMP ANY, INC • ; 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On August 18, 2005, Chief Administrative Law Judge Robert 

J. Lesnick issued a show cau~e order to R.J. Cincotta Company, Inc. ("Cincotta'') stating that it 

had failed to file an answer to a ,petition for penalty assessment sent to it by the Secretary of 

Labor on July 6;;200.5, and that Cinco~a would be found in default if it did not file an answer or 

show good cause for noh:loing.so··Within 30 .days of the order. On November 2, 2005, Chief 

Judge Lesnick issued an order fi.ndirig that Cincotta had failed to respond to the show cause order 

and entering a judgment by default for the Secretary of Labor. 

On January 17,-2006, the·C-Ominission received from Cincotta a letter stating that the 

company never received the order of default. The letter also states ''we never heard back for [sic] 

an order to respondent to ·show cause" (indicating that the company may be confused as to its 

status as the respondent in these proceedings). Finally, the letter states that Cincotta ''would still 

like to contest this [penalty].,. The Secretary states that she does not oppose Cincotta' s motion. 

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

November 2, 2005. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's 

procedural rules, relief from ajudge'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). If the Commission does not direct review within 40 days of a decision's issuance, 

it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). The judge's order 

became a final decision of the Commission on December 12, 2005. 

28FMSHRC7 
·.·· ' 

In evaluating requests to reopen final.orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled 

to relief from a final order of the Commission on .the basis of inadvertence or mistake. See 29 · 

C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as practicable by the 

Federal Rules of Civil Procedure"); Jim Walter Resources, Inc., 15 FMSHRC 782, 787 (May 

1993). We have also observed that default is a harsh remedy and that, if the defaulting party can 

make a showing of good cause for a failure to timely respond, the case may be r~opened and .. 

appropriate proceedings on the merits permitted. See Coal Prep.,Servs.,.Jnc.,' 17.FM~aRC 1529, 

1530 (Sept. 1995). . . . . . . 

. Having reVi~wed. Cincotta' s motion, in the interests of justice, we hereby ~and this 

matter to the Chief Administrative Law Judge for a determination of whether good cause exists 

to excuse Cinco~a's failure to respond to the show cause order, and; for fi¥ther.proceedings as 

appropriate. · · . · · · 

.... · : . :" ·. 

28FMSHR.C·8 

; . 
Distribution 

Richard J. Cincotta 

R.J. Cincotta Company 

P.O. Box 540566 

275 Lexington Street 

Waltham, MA 02454-0556 

W. Cluistian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

.. 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

28FMSHRC9 

... 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOUTHERN NEV ADA PAVING 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 23, 2006 

. ... . : 

Docket No. WEST 2006-100-M 

A.C. No. 26-02478--68079 

Docket No: WEST 2006-104-M . 

A.C. No. 26-02000-67992 

... '· . . 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young;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. (2000) ("Mine Act"). On January 25, 2006, the Commission received from the 

Secretary of Labor a motion to reopen two consolidated penalty cases which had been dismissed 

by Administrative Law Judge Jacqueline Bulluck in an order dated December 23, 2005. Judge 

Bulluck dismissed the cases, Docket Numbers WEST 2006-100-M and WEST 2006-104-M, 

upon a motion made by the Secretary, filed in the form of a letter dated December 6, 2005. In 

this motion to dismiss, the Secretary stated that "the underlying citations have been vacated." 

In her motion to reopen, the Secretary states that in the caption to her December 6, 2005, 

motion to dismiss, the wrong docket numbers were used, namely, the dockets that she now seeks 

to reopen. Mot. at 3. The record reflects that, in a letter dated January 13, 2006, counsel for the 

Secretary attempted to advise Judge Bulluck of this error. 1 By then, however, the judge had 

issued the order of dismissal. 

The judge's jurisdiction in the instant penalty cases (WEST 2006-100-M and WEST 

2006-104-M) terminated when her order was issued on December 23, 2005. 29 C.F .R 

1 Southern Nevada Paving filed a response to the Secretary's January 13 letter in which 

the company opposed the Secretary's request that the judge, in effect, withdraw her order of 

dismissal. The company did not file a response to the Secretary's motion to reopen. 

28FMSHRC 10 
§ 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). If the Commission does not direct . 

review within 40 days of a decision's issuance, it becomes a final decision of.the Commission. 

30 U.S.C. § 823(d)(l). The Commission has not directed review ofthejudge~s order, which .·· 

became a final order of the Commission on February l, 2006. 

In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled 

to relief from a final order of the Commission on the basis of inadvertence or mistake. See 29 

C.F.R. § 2700.l(b) (''the Commission and its Judges shall be guided so far as.practicable by.the . 

Federal Rules of Civil Procedure"); Jim Walter Resources, Inc., 15 FMSHRC 782, 787 (May 

1993). 

Having reviewed the Secretary's motion, in the interests of justjce,. w~ hereby ~emaμ<J ~his 

matter to the Chief Administrative Law Judge for a determination of.whether goo<f:.cause ~xists 

to excuse the Secretary's error that led to the dismissal of the two instanf c,as~, a;nd .for further 

proceedings as appropriate. 

s~ 

ss10ner 

28FMSHRC 11 
Distribution 

Jan Coplick, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

71 Stevenson St., Suite 1110 

San Francisco, CA 94105 

James J. Gonzales, Esq. 

Holland & Hart, LLP 

555 17th Street, Suite 3200 

Denver; CO 80202 

John D. Pereza 

Conference & Litigation Representative 

U.S. Department of Labor, MSHA . 

2060 Peabody Road, Suite 610 · 

Vacaville, CA 95687 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety And Health Review Commission 

601 New Jersey Avenue; N.W., Suite 9500 ·~ . Washington, D.C. 20001 ·· 

28FMSHRC 12 

., . 
FEDERAL MINE SAFETY AND HEALTH·REVIEW COMMISSION .. 

SECRETARY OF LABOR,: 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WILLIAMS & SONS . 

SLATE & TILE, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC ~0001 

Febru,ary 27 ~ 2006 . 

. DOcket No. PENN 2()()6..-75-M : 

A.C:'No. 36-0715647898 

Docket No. PENN 2006-76-M · 

A.C. No. 36-07156-67440 A · 

Docket No. PENN 2006-77-M 

A.C. No. 36-07156-70601 

Docket No. PENN -2006-18;.M 

· A:C. No. 36-07156-45·867 · . 

BEFORE: Duffy, Chairman;Jor~ Suboleski, and Young, 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. (2000) (''Mine Act"). 1 On January 30, 2006, the Commission received a letter from 

Robert Williams, Sr., of Williams & Sons Slate & Tile, Inc. ("Williams & Sons") requesting that 

the Commission reopen four penalty assessments that had become final orders of the 

Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). On February 6, 

2006, the Secretary of Labor filed a Response to Request to Reopen Penalty Assessments (a 

clarification was subsequently filed on February 15). Williams & Sons did not reply to the 

Secretary's response. 

Under section 105( a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

1 Pursuant to Commission Procedural Rule 12, on our own motion; we hereby· 

consolidate docket.numbers PENN 2006-75-M; PENN 2006,. 76-M, PENN 2006-77 M, and 

PENN 2006;.78-M,- all captioned: Williams & Sons Slate & Tile, Inc., and all involving·similar 

procedural issues. 29 C.F.R. § 2700.12. 

28FMSHRC 13 
penalty assessment .. If the operator fails 'to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commissio~ .. 30 U.S.C'.. § 8~~(a). 

The Secretary states that the Department ofLabor s Mine Safety and Health 

Administration ("MSHA") issued the following proposed assessments to Williams & Sons on the 

dates noted: A.C. No. 36-07156-45867 (PENN 2006-78-M), issued on December 16, 2004 

(received by the operator on December 28, 2004, and becoming a final Commission order on 

January 27, 2005);2 A.C. No. 36-07156-47898 (PENN 2006-75-M), issuecl on Januazy:l3, ·ZOOS; 

A.C. No. 36-07156-67440. A (PENN 2006-76-M), issued on September 15, 2005~ .and A~C No. 

36-07156-70601(PENN2006,..77-M), issued on October 28, 2005; -In·his letter, Williams states 

that his health has been "day to day." No further explanation is offered regarding his company's 

failure, to timely contest the penalty proposals at .issue, although the letter states that Williams & 

Sons wishes .''to appeal the citations" underlying the penalty proposals. The Secretary states that 

she does not have enough information to determine whether reopening these dockets may be · · 

warranted. . . , 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105( a). Jim 

Walter Res;, Inc,, 15 FMSHRC 782, 786-89(May1993) ("JWR''). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) under 

which, for example, a party could be entitled to relief.from a final order. of the Commission.on 

the basis of inadvertence or mistake. See 29 C.F.R. § 2700.l(b) (''the Commission and its Judges 

shall be guided so far as practicable by the Federal Rules of Civil Procedure"); JWR, 15 

FMSHRC at 787. We have also observed that .def a.Ult is a harsh remedy and that, if the 

defaulting party can make a showing of good cause for a failure to timely respond, the case may 

be reopened and appropriate proceedings on the merits permitted. See Coal Pr.ep: Servs., Inc., "l 7 

FMSHRC 1529, 1530 (Sept. 1995). 

2 Williams & Sons filed its request to reopen A.C. No. 36-07156-45867 (at issue in 

Docket No. PENN 2006-78-M) on January 26, 2006, the day the request was mailed. ·see 29 

C.F.R. § 2700.S(d) (with·a few exceptions noted including petitions for discretionary i:eView and 

certain procedural motions, "[ w ]hen filing is by mail, filing is effective upon mailing"). =The 

company's request is·thus· not time barred under the one-year principles set forth-in-JS Sand·&. ·· 

Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004). '. 

28 FMSHRC 14. 
Having reviewed Williams & Sons' s request for relief, in the interests of justice, we 

remand these matters to the Chief Administrative Law Judge for a determination of whether good 

cause exists for Williams & Sons's failure to timely contest the penalty proposals and whether ·, 

relief from the final orders should be granted. If it is determined that such relief is appropriate; 

these cases shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 

29 C.F.R. Part 2700. 

28FMSHRC15 
Distribution 

Robert Williams, Sr. 

Williams & Sons Slate & Tile; Inc. 

6596 Sullivan Trail 

Wind Gap, PA 18091-9798 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor . . 

1100 Wilson Blvd.;2211d'FloorWest · 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 2~1-20tf · · 

: . ~ . .. 

28FMSHRC 16 

•. 
FEDERAL MINE SAFETY AND-HEALTH REVIEW.COMMISSION ·· 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

IO COAL COMP ANY~ INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 · 

WASHINGTON, DC 20001 

February 27, 2006 

Docket No. WEVA 2006-86 

A.C. No. 46-08798-72387 

BEFORE: Duffy~ Chairman; Jordan, Suboleski, and Young, 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. (2000) ("Mine Act"). On February 6, 2006, the Commission received from IO Coal 

Company, ,Inc .. ("IO Coal") a motion made by counsel 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). 

On September 16, 2005, IO Coal timely contested Citation No. 7240550, issued by the 

Department of Labor's Mine Safety and Health Administration (''MSHA") to IO Coal's Europa 

Mine. Mot. at I. The contest proceeding is currently before Commission Administrative Law 

Judge Avram Weisberger. Id. at.1-2 (citing Docket No. WEVA 2005-235-R). When MSHA 

subsequently proposed a pena.lty for Citation No. 7240550, IO Coal paid it along with 33 other 

penalty assessments. Mot. at 2. The company now contends that it made the payment 

inadvertently, and asserts that it had always intended to contest both the validity of the citation 

and any related penalty. Id.; Aff. of Timothy Beckner. The Secretary states that she does not 

oppose IO Coal's request for relief. 

We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission bas found guidance in Rule 60(b) of the 

28FMSHRC 17 
Federal Rules of €ivil-Procedu'.re under which~ for: example; .a·party could l:}e entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R. 

§ 2700.l{b) ("the Commission and it~ Judges sli~ll l?e guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMS.HRC ~t 787~ . . ' . 

Having reviewed IO Coal's motitiil, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for IO 

Coal's failure to timely contest the penalty proposal, and whether relief fr:0m ~e final order 

should be granted. If it is determined that such relief is appropriate.: this· case.shall proceed· 

pursuant to.the-Mine Act and the Commission's Procedural Rules,29 CJi.R Part 2700; 

\. '~· Michae~~~ . . . . . ~ . . . : . . . . . . .. : ' . ·. : . . : . . . 

Jtl+f~ u o 1oner · 

:. • . . ·.· .. . : : . ... 

~ ... ·. . . : . : · . .. 

28 FMSHR.C 1.8. 
Distribution 

David J. Hardy, Esq. 

Spilman, Thomas & Battle, PLLC 

300 Kanawha Blvd. East 

P.0.Box273 

Charleston, WV 25321 

W. Christian Schumann. Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington. D.C. 20001-2021 

28FMSHRC 19 
... .. 

. . ' 

28FMSHRC20 
ADMINISTRATIVE LAW JUDGE DECISIONS 
. " 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE L6.W JUDGES 

601 New Jersey Aveoue, N.W .• . Suite 9500 

Washington, DC 20001 

NATIONAL CEMENT COMP ANY 

OF CALIFORNIA, INC., 

Contestant 

TEJON RANCH CORP, 

Intervenor 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

January 10, 2006 

· · · CONTEST PROCEEDING 

Docket No. WEST 2004-182-RM 

Citation No. 6361036; 02/09/2004 

Lebec Cement Plant 

Mine ID: 04-00213 

. DECISION ON REMAND 

Before: Judge Feldman 

This contest matter concerns Citation No~ 6361036. tliat was issued for aii 3lleged 

violation of the Secretary of Labor's ("the Seeretary' s") mandatory safety standard in 

30 C.F.R. § 56.9300(a) that requires the construction of berms or guardrails on the banks of 

roadways where significant drop-offs exist. The citation involves a private paved 4.3 mile long 

two-lane road, beginning at State Route 138 in northern Los Angeles County, and ending at the 

entrance to National Cement Company of California, Inc.'s ("National Cement's") Lebec Plant. 

National Cement, the non-exclusive easement grantee, and Tejon Ranch Coq)orati_on ("Tejort"), 

as grantor and intervenor, assert that the private· road is not subject to the jurisdiction of the 

Federal M.ine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act"). 

The initial decision in this matter granted the Secretary's motion for summary decision 

and determined the entire 4.3 mile long private access road to the Lebec Plant was subject to 

Mine Act jurisdiction because the road was used predominately by mine related vehicles. 

27 FMSHRC 84 (Jan. 2005) (ALJ). The Commission reversed and remanded, holding that 

only the segment of the private roadway over which National Cement has exclusive use is a 

"coal or other mine" as contemplated by section 3(h)(l) of the Mine Act. 30 U.S.C. § 802(h)(l). 

27 FMSHRC 721 (Nov. 2005). Consequently the Commission directed that I determine the point 

on the road" ... beyond which traffic authorized by Tejon but unrelated to National Cement's 

facility ceases." Id. at 735. 

28FMSHRC21 
. . ..... 

On December 15, 2005, the·parties filedajo~t stipulation resolving all issues of fact 

concerning the identification of any portion of the road beyond which National Cement has 

exclusive use. The stipulation states: 

The Secretary, National Cement and Tejon hereby agree and stipulate that no 

segment of the rorutbetween State Highway 138 and the en~ce .to the cement 

plant is used exclusively by National Cement and its customers. · 

ORDER 

Consistent with the Commission's remand, in light-of the joint stipulation reflecting .that 

National Cement lacks exclusive use over any portion of the private roadway, IT IS ORDERED 

that Citation No. 6361036 IS VACATED for lack of Mine Act jurisdiction. 

., ~ 

Jerold Feldman 

Adntinistra~v~ 4w Judge 

Distribution: (Certified Mail) .. ... 

MargaretS. Lopez, Esq., 9gletree, De.akins, Nash, Smoak& Stewart, P.C., . th . ·. . . • . . . 

2400 N Street, N.W., 5 Floor, Washington, DC 20037 

Thomas C. Means, Esq., Crowell & Moring LLP, 1001 .P.enru;ylvaniaAvenue,.N.W., 

Washington, D:C· 20004-.2595 · 

Timothy S. Wtlliams, Esq., Office of the Solicitor, U.S. Department of Labor, .. 

1100 Wilson Blvd., 22nd Floor, Arlington, VA 22203 · · 

/mh 

.·· · . 

28FMSHRC22 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

30J..S44..3577~AX 30~5268 

January 20, 2006 

FLOYD DOWLIN, ~ 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

Docket No. ~T 2004-492-D 

DENV-CD 2004.:09 

Mine l.D. 24-01747 

Rosebud #6 Mine 

WESTERN ENERGY COMP ANY, 

R.espondent 

'DECISION' 

Appearances: Amber Haff, "Latirel~ Montan~ for Complainant; 

Laura E. Beverage, Esq., Jackson Kelly, De~ver, Colorado;· · ·.: .. . · 

· for ReSpondent. 

Before: Judge Manning 

This case is before me on a complaint of discrimination brought by Floyd Dowlin, III, 

against Western Energy Company ("Western Energy")~ mider section 105(c)(3) of the Federal 

Mine Safety and Health Act ofl977, 30 U.S.c. §8i5(c)(3}(the''Mine Act"). Mr. Dowliri · 

contends that he was terminated from his employinent beca\ise he complained about safefy issues 

at the mine. An evidentiary hearing was ·held in Billings, Montana. I entered a bench· decision at 

the end of the hearing di~ing the complaint of discrimination. 

I. BACKGROUND; SUMMARY OF THE EVIDENCE, AND 

FINDINGS-OF· FACT 

Western Energy operates the Rosebud·#6 Mine; a large open pit coal mine in Rosebud 

County, Montana. Mr. Dowlin filed a discrimination complaint with the local office of the 

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

determined that the facts disclosed during her investigation into Dowlin's discrimination 

complaint do not constitute a violation of section I 05( c) of the Mine Act. On September 23, · 

2004, Dowlin filed this proceeding on his own behalf under section 105(c)(3) of the Mine Act. 

He alleges that ·he suffered adverse actions because he complained about safety conditions at the 

min~. He was· represente4 by his daughter, who is not an attorney. ;· 

Dowlin worked at the Rosebud #6 Mine for abo~t 15 ·years. During.that period, he · 

operated ·many ·different types of mobile equipmeht:but lie preferred to operate bulldozers. In late 

August 2002, Dowlin wa5 operating a water truck when.he observed the boom of~ dragline 

28FMSHRC23 
· . . : ~ . . . .. . · . ~. ·,. 

swing over an open mine road. (Tr. 54, 111).· He statect'that a coal haul truck drove under the 

boom. He reported this condition to mana:gement over the mine radio. According to Dowlin, a 

representative from the company safety department investigated the condition but he did not take 

.any action. As cons~uence, Dowlin called the local MSHA office to complain.abput the . 

condi.iion he observed: An MSHA inspector investigated Do~lin s co~plaint and determined 

that no violation of a safety standard occurred. (Tr. 57). MSHA's.lack of enforcement angered 

Dowlin, so he calle4 MSHA,again. Another MSHA inspector visited the site and wrote a nonsignificant and substantial citation alleging a violation of 30 C.F.R. § 77.1607(c), as follows: 

''verbal testimony revealed coal haul truck #148 passed under the boom of #124 dragline while 

the dragline was in operatl.on." (Ex. C-2). 

. . 

Between October 7, 2002 and December 6, 2002, Dowlin was on medical leave for two 

months because he bad broken his ribs. (Tr. 59, 115). When he returned to work, he operated a 

water truck and he was scheduled to operate a coal haul truck. (Tr. 61, 116). Dowlin preferred 

not to operate coal trucks because he considered it' to be "boring" and he did not believe that coal 

truck drivers make as much money ev~ though the rate of pay.was the same. (Tr. 61-6_2, J28., . 

143-44). Dowlin believed that haul truck drivers were not given as mariy opportunities 'to work 

overtime. He also believed that his assignment to operate a hauf tiuck violated the Family 

Medical Leave Act. (Tr. 63). He liked operating a reclamation dozer because ''you're pretty well 

left alone" on that job. (Tr. 142). Dowlin likes to work independ~~tly in an area with minimal . 

supervision . 

. DowlinJ>elieves that Jack RQ~ander, product~~~ sμpe$t~den~, iμid G~~~ LogaP., ~ production supervisor, were instnmiental in reassignlμg hiPl to ~he .coai batil ~"' ~d. ~t this 

reassignment was in retaliation for his safety compl~nt. Dowlin te~tified that after he · 

complained to them about the assignment, he was reassigned 'to. operate a .dozer. (Tr. '64, 117). 

Between December 2002 and March 2004 Dowlin was primarily scheduled to operate a 

dozer on the reclamation crew. (Tr. 118;-19). He ope~ed pth~r equipment during that period as 

assigned by management. Id. On the gi:ave~d shift of ~arch 2, 2004, Dowlin was scheduled to 

work with Harry Stevenson to help load a train. (Tr. 64). Both men operated dozers to push coal 

into the feeders. A feeder is an opening in the ground tha.t consists of a square concrete box that 

is lined with quarter inch flat metal plate. ,(Tr. 232). There are about 15 feeders in the area. .. @x. 

R-7). Coal falls through these feeders onto a belt that transi)orts the coal to the top pf the tippie. 

Dowlin was operating a D-10 ·caterpillm:: and Stevenson WaS operating a l~ger D-11. ·powlm .... testified that visibility was very poor that night and that st~a,m wa& rising from the coal. The · 

feeders were co.vered_with coal and it was unpossible. to see wh,~re they.were. {Tr .. 65, 122). The 

metaI.'limng and lips of several feeders .were extensively d~aged that night. Dowl_in.and.. · · 

Stevenson were shown the damage(! fe~ders at 8;00 a.ni .. at the _end.of theli .shift._. (Ji. l22). 

Dowlin believes that any number ·of people could have damaged the feeder5 ·befdre his shift but 

that he was s~gled out for punishment. (Tr. 65-66, 123). He ~so testified th~t ~ther people have 

damaged the feedeis,'but he is the only employ~e who has. bf;en disciplinect for ~aging the . 

feeders. He stated that management based its conclusiOn that he was ~espon~ibie (Qt th~ damage. 

28FMSHRC24 
solely. on measurements taken of track marks made by the dozer he was operating. (Tr. 66-67). · 

Dowlin· believes that it is more likely that Stevenson damaged the feeders that night. (Tr. 67). 

Dowlin attended a·fact-finding meeting with management on the morning oflyiareh 3, 2004. ·(Tl'. 

123). -, He. admitted atthe meeting that he had . run over the lip of one or more, feeders that-night. . 

Dozer operators are required to keep, some coal over the. f~er area and (Jfe not. supposed to · ·· · 

scrape down to bare di.rt. Dowlin received a verbal warning for the incident. (Tr. 67-68, 124). 

He admitted'telling Terry Sprenger,. the -human·resources manag~;,- after the.meeting.thathe did 

not disagree with the verbal warning. (Tr. 124-25). 

Dowlin was told that he would be assigned to work on the c.oal.haul crew ~ a resu,lt ,of. 

the feeder incident. (Tr. 69). He discussed the matter-with Jack Rosander~ According to'. ·. : 

Dowlin, Rosander told him that he was· taken off the:dozer because.:of past incid.ents ineluctmg 

the feeder.damage. Rosander also cited the factthatDowlin·had run-o:ver a dragline-cable a·few 

years earlier. Dowlin responded. that another employee. had run .over a dragline cable threeJimes. 

in less than a year. Dowlin told Rosander that this inconsistent discipline demcmstrates that he 

was discriminated against in violation of the Mine Act. He testified that other employees 

damaged equipmentwithout receiving·any discipline. (Tr.-.144-45). Dowlin maintains: that he 

was reassigned to.drive. coal haul trucks inretaliation·for his.2002 safety complaint.· , 

. : .. . . ; ~ 

· After this meeting with Rosander, Dowlin talked to Terry -Sprenger .. (Tr. :70).: Sprenger · 

apparently told Dowlin that Rosander ,and Joe -Micheletti,. a faciliti~ :manager, arnmged for the 

change in ·his work :assignment; but Sprenger told-Dowlin that he was· not discriminated .against· : 

as a result of.his: safety. complaint. (Tr/ 71 ). · . -· · . .. 

: .. ' . . . . .. ~: !; ·::. :: 

Late in the-.day on March .3, 2004; Dowlin went to the mine. t0.,wo*·the gi;aveyard·shift 

that started at midnight. Dowlin was "severely upset, severely:depressecf' ,because :of the: way the 

feeder incident had been handled by the company. (Tr. 72). Dowlin testified that because he has 

a history of"depression and mentaLproblems," he "justwasn~t quite (in a]righLmind." Id. He 

decided that if the ·posted schedule showed: him working on the coal. haul crew the following .. 

week, he would tum -ina request for medical leave beeause:he;''was on·.the verge.ofa-mental 

breakdown:" (Tr .. 72, 129). When.Dowlin saw. that,he.was schedulecHo. drive a:haul tru~k 

starting the following Monday; he turned in a mediCalleave request and:left·the·mine . . He :. 

testified that he would not have turned in the medical leave request if the posted schedule 

indicated that he .wol!ldbe operating the. dozer. (Tr. 129). His regular shift boss,was·not.there, 

so he wrote a .supervisor's name on the envelope and placed the medical. leave form where the. 

time cards are kept in the crew shack. (Tr. 131 ). . 

Jim Holenbeck, the relief shift boss on the :graveyard shift, was an hourly employee .and ·a . 

member of the local Operating Engineers union with Dowlin: Holenbecktold Dowlin: what · · .. 

dozer he would be operating that night. (Tr. 74). Dowlin testified that he refused to 

"acknowledge" Holenbeck because he has "no use for that man." Id. Dowl1n went to his locker, . 

removed his personal belongings; :and put them in his truck , He then told· Hol~beck that he 

would have to find. someone to replace him because he wa$ going home. (Tr~ 76, l36). Dowlin · 

28FMSHRC25 
did not tell Holenbeck that he had requested medical leave. (Tr. 135-3"6).· When Holenbeck 

asked why he was leaving, Dowlin testified that he replied "because .of brown nosing rotten 

spankywanky snitches like you." (Tr. 76-77) .. Dowlin also.remembers thathetold.Holenbeck 

that he "might have to tear his head off for snitching' arid ."whip his ass." (Tr. 77, 132, 138) . . 

Dowlin admitted that he threatened Holenbeck.· (Tr. 131-32}} ·. · . 

Dowlin: then went home to ·rest, When .he woke. rip he w.as feeling '.depressed and · 

suicidal" so he called to make an appointment with his doctor: (Tr. 77). After meeting with the 

doctor, he received a referral to a psychiatrist and the doctor wrote a letter recommending that 

Dowlin be excused from-work because of his· mental condition. (Tr. 78;· Ex. C ... 3). Dowlin 

checked' into· the psychiatric·.ward of the Deaconess Hospital.in Billings.· He was in the hospital · 

about four·or five days. ·(Tr: 84) •. His· diagnosis was ''major depression, recurrent with mild · 

psychotic features"· and "occupation related problems." (Ex. C-s; p. 2). He agreed to see a 

counselor as a condition of his release. Dowlin had therapy sessions· with several ~ounselors .. 

(Tr.'84-5, 88-89, Exs. C-6,. C-7). 

When-.Dowlin left the mine just before the start of-his shift,. Western-Energy assumed. that 

he had quit. Mr. Sprenger wrote a letter to Dowlin which ·stated that the company had been 

"notified that you tendered your verbal resignation on March 3, 2004, at approximately 11 :30 

p.m: to Mr. Jim Holenbeek, ·acting ~upervisor." (Ex. C-8): Dowlin-testified.that he:did net tell 

Holenbeck that he was quitting and he leftthe.requestfor medicaUeave in the"ereW shackF(Tr. · 

94). Dowlin testified that, because he was a faithful 15: year employee at Westem Energy, Mr .. · 

Sprenger should have called to find out why he left the.mine:· The.fa.qt that hewas"nevercalled .. 

demonstrates that Western Energy was trying to "get rid" of him "due to safety factors!' (Tr. 92). 

He never received a response to the request for medical leave . .. Dowlfu maintains that the 

company terminated him-for raisiiig safety issues:· .' · · ·' ·· · ·.. · · 

After he was· released from the hospital, Dowlin contacted ms union representative to set 

up a meeting With management. He did not want his job.·back at that time,. but·he wanted the 

company to. honor his request for medical leave . . (Tr. 97d.26-27). Dowlin:testified that the . 

union negotiated a.settlement in which.he would-receive"$3,600 and have his'medical leave 

request honored, but he tumed'the settlement down. {Tr. 97; 1271-143). · 

On cross-examination, Dowlin admitted that·under the:collective bargaining agreement:a 

miner does not have the right to operate a particular type"of equipment and that management may 

assign and reassign an employee to operate any other type of equipment for-which he has · .· 

received training. (Tr. 112). He also admitted that Western Energy is not required to make job 

assignments based on seniority. (Tr. 151 ) .. Mr Dowlin was task trained to operate a wide ·range 

of equipment at the mine including coal haul trucks, dozers, and· scrapers ... (Tr;: 113; Ex5 R-3): . 

... 

1 ·In January2004, Dowlin damaged a·inetal culvert·ashe·removed:itwith·his·dozer. He 

called Holenbeck a snitch on.March 3 because Dowlin.believes .that Holenbeck told managementabout the damage. Dowlin was not disciplined for the damage. (Tr. 132-35). 

28FMSHRG26 
Dowlin admitted that he could.have volunteered for overtime while he was.·a coal haw truck . 

operator, but he was guaranteed work on three weekends as a reclamation dozer operator. (Tr. 

149, 152-53).2 

Jim Holenbeck worked for Western Energy for 25 years before be retired . . .(Tr. 203);·.·He 

was a scraper blade operator in March 2004 . . Because he was a certified mine foreman he.filled 

in as a supervisor on an as-needed ·basis. He was :the acting' supervisor:on the gr~veyard shift that 

started at midnight. He recalls that Mr. Dowlin asked him to meet him outside before the shift 

started. (Tr. 204);· Holeilbeckrecalls that Dowlin told him that he was quitting. (Tr~ 205). As 

Dowlin:walkedto :his pickup truck, Holenbeck asked Dowlin what was the matter. Dowlin told 

him that he would not work for anyone who ratted on him. Id. Holenbeck testified that when he. 

tried to tell Dowlin that he did not rat on him, Dowlin repliecl.that he should whip.his butt and he 

drove off. At· the suggestion of another supervisor, Holenbeck wrote a·memo .describing what 

happened .and left it on Rosander's desk. (Tr. 205..:06)~ In the memo; he wrote that·Dowlin.told 

him he was quitting. (Ex:.<R-4). 

·: .. · 

Jack Rosander was the production superintendent in March 2004. (Tr. 214). He testified 

that under the collective.bargaining ·agteeinent, employees are 'assigned tn.equipment on a weekly 

basis without regard to employee seniority.··tfat-216; Eil.·R·5; p.·13). He testified that the coal 

crew made as much if not more money than dozer operators in 2004. He further testified that he 

prints out the we.ekly cEew. sch~ule on Wednesday of the preceding week. {Tr; :220), · 

. . ~ ·.: . . .. : : . 

. Rosander testified: that he,inv.estigated :the. damage to the feeders~ and took photographs. · 

(Tr. 228; Ex. R·:8)~ ·The.photographs were. taken the m~ming after: Mr; Dowlin.'·s.:graveyard. shift., 

(Tr.230). Some of.the feeders. were severely damaged in:thatthe metaUining;had,beenbent 

back. (Tr; 232). The damage was mote extensive. than he could ever remember. (Tr.236,::.251-

52; Ex. R-8 p.· 9) . . Jn addition; quite.a bit of dirt had been pushed into,the·feeders· which affects 

coal quality. (Tr. 233). By looking at the dozer tracks and measuring their:width; Rosander · · 

determined that the damage had been caused by Dowlin's smaller dozer. In addition, Rosander 

testified that Mr. Stevenson told .him. that. Dowlin. had been working :around the feeders -that were 

damaged. (Tr .. 235). Stevenson told Rosander that he. was ·:working!up· on coat:piles:-at, the east. 

end and Dowlin was working on the west.end near .the· damaged feeders. ·(Tr. 263). Rosander 

also determined that the ·previous crew had not.damaged. the, feeders. Rosander testified that , 

2 Five miners also testified on behalf ofDowlit). Mostofthetestimonyconcemed.the events 

oflate August 2002,when the boom of a dragline SWl:lllg.over amine road. ,Several miners, including 

a union steward, testified that they were. not aware of ctnyone else being disciplined for. damaging 

feeders. (Tr. 50, 156, 17 6). There was also testimony:thattniners had been disciplined for:damaging 

other equipment. (Ti:. 50, 188), . One miner testified; .that.if an·.employ~ does something'. that 

management does not agree wi~ he will likely be assigned to ajob· that.he does noHike~ . (Tr .. 174). 

Another miner testified that an employee is permitted to slow .down or shut down· his equipment.if 

visibility is too poor to work safely. (Tr. 168). Another miner testified that he preferred to operate 

coal haul trucks rather than work on a dragline. 

28FMSHRC27 
when he talked to Dowlin about-the damage, Dowlin acknowledged :that he damaged the feeders. 

(Tr. 237). 

Following his investigation, Rosander determined that Dowlin should be transferred to 

another ·position. (Tr. 238). ·Damaging the feeders :has a negative effect on coal ·production. He 

reass1gned Dowlin to a coaf hauling position. (Tr. 239). He did not expect that this transfer · , 

would reduce the amount of money Dowlin would earn. (Tr. 261). · 

. ' ·Rosander does not believe that the boom of the dragline.extended.over the roadway in · 

August 2002. (Tr. 239-43). He bases this conclusion on his-understanding of the configuration 

of the roadway and the position of the dragline on ·that day.· MSHA Inspector Priest did: not issue 

a citation.· A few days later, MSHA Inspector Keller issued.a citation for the condition. The 

company paid-the $55.00 penalty proposed by the Secretary:because it was not worth 

challenging. (Tr. '244). Rosander denied that Dowlin was transferred to·the coal lfaul trucks in 

December 2002 and in March 2004 as a result of his complaint about the boom of:the dragline in: 

August 2002. (Tr. 245). . . . . ' ~ 

·JI. DISCUSSION. WI'J;H-·FURTHER Ji'INDINGS: · ·., · .. ' · · 

· · · · . · · . . AND CONCLUSIONS·OF·LAW · .. 

.. , 

Section 105( c) of the Mine' Act pr-ohibits discrimination against miners for ·exercising any: 

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

play an.active.part in the enforcement ofthe·[Mine]Act"recognizing.- that; "ifminers.are to be 

encouraged to ·be active··in matters of safety: and health; they must:be protected against any· possiblediscriminati~n which·they might sUffer as a result of their participation.". S.-Rep-. No. · 

181~ 95th Cong., pt Sess. 35 (1977), r.eprfnted.in Senate Subcommittee.on Labor, Committee.on 

Human: Resources, 95lh Cong., 2nd Sess., Legislative History:of the Federal Mine Safety and · 

Health Act of 1977 at 623 (1978) ("Legis. Hist.") .. 

A miner alleging discrimination·. under the ,Mine Actestablishes a pr.imaf acie case· of 

prohibited· discrimination bypresenting,evidence:sufficienno support-a conclusion.that he · 

engaged· in protected ·activity:and suffered adverse action·motivated in:any,part by.that•activity. 

Secretary ofLabor on behalf of Pasula v. Consolidation Coal Co •• 2 FMSHRC 2786~ 2797-800. 

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

behalf of Robinette v. United Castle Coal Co .• 3 FMSHRC 803, 817-18 (April 198i);Drie~sen v. 

Nevada Goldfields,·lnc., 20 FMSHRC.324, 328 (Apr. 1'998). · The·rilineoperatormay·rebut the 

prima facie case by showing .either that no protected activity occurred or that the adverse action 

was in no part motivated by the protected-activity. Pasu1a;2 FMSHRC at 2799.:800. If the mine· 

operator cannot rebut the prima facie ·case in this manner; it nevertheless may defend by proving·· 

that it was also motivated by the-miner's-.unprotected activity.and would have taken the adverse · 

action for the unprotected activity alone: Pa8ula at 2800; Robinette~ 3 FMSHRC at 817-18i see 

also Eastern Assoc. Coal Corp. v. FMSHRC; 813 F.2d-639,·642.(4th Cir: 1987). 

I'·• 

28FMSHRC28 
. A. Protected-Activity 

I find:that Mr. Dowlin engaged in protected activity. He testified that he saw the boom of 

a dragline swing over a roadway and a truck pass under the boom. For purposes of this decision; 

I credit this testimony and find that it qualifies as protected activity. . ~.: . 

B. Advene Action . . ; 

l . .Verbal Discipline and:. Reassignment.to Coal.Haulage .. Trucks. . · 

Dowlin genuinely believes that the,companyrequired.him to operate coal haul trucks in 

December.2002 ·-and March 2004·in: retaliation' for·his August 2002 safety complaint. . The 

company contends that these equipmentassigninents· were made in the ordinary course of 

business and:that they were ·not "adverse ' :because his rate of pay did not .change. Ift addition,, it 

maintains.that his total wages were.not·adversely:affected by:these. assignments becailse he.was 

still eligible for overtime. · · ~ ... 

It: is clear that Dowlin saw these actions as ~':adverse": to his interests: The: company knew 

that he preferred to operate a ·:r:.eclamation dozer and :Dowlin sincerely: believes ·that ·he.'was ,taken _ 

off the dozer to punish.him. The Deeember.2002 . .assignment to operate a coal hauLtruckcaiinot 

be construed as adverse because Dowlin was reassigned to the dozer as soon as he requested it. 

. · . With respect to his· March.200:4 ·assignment t()l_a coal .haultruck, Dowlin, believe5' that lte,. · 

was treated· differently from other:employees;who had-damaged:equipmenL ·He:pointe&to a '_.· -· 

number of employees who .he believ.ed·had·caused;signi:ffoant damage,to equipment. . .He al&o '. . · 

contends that the company had insufficient cause to blame him:forthe.damage, which: shows; that 

management had a discriminatory motive. The company maintains that damage to the feeders 

was quite substantial and that:it had more:than enough: evidence to; determine that Dowlin caused 

the damage. It relies on the fact that Dowlin ·admitte& that-he: damaged one or more feeders that 

evening. W estem Energy contends that i~ was·.Within; its :rights under the collective bargaining 

agreement to give Dowlin a verbal warning and :to· reassign. him to:a'haul truck following the 

feeder incident. Rosander did not believe thatthis reassignmentwouldreduce,his.pay and I 

credit his testimony on that issue. Thus·; I find that Dowlin did not-suffer an:adverse action when 

he was assigned to operate a coaJ:haul truck the following week.· Nevertheless, I give Dowlin the 

benefit of the doubt and, for purposes of this· decision, I will assume that his ·verbal warning and 

reassignment to operate-coal.haul trucks in March 2004 was an adverse action. 

fu determining whether. a mine operator's adverse action is motivated by'the miner's 

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

encountered; more typically, the only available evidence is indirect."· Sec'y of Labor on behalf of 

Chacon v. Phelps Dodge.Corp., 3 FMSHRC2508; 25l0(November1981),,rev'don other 

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

can be proven only by the use of circumstantial evidence." Id. (citation omitted). Jn Chacon, the 

28FMSHRC29 
Commission listed some of the more common circumstantial indicia.ofdiscriminatory intent: {l) 

knowledge of the protected activity; {2) hostility or animus toward the protected activity; {3) 

coincidence in time between the protected activity and.the.adverse action; and {4) disparate 

treatment of the complainant. 

Western Energy had knowledge of the protected activity. Although there was some 

hostility to Dowlin calling MSHA twice in August 2002, there is no evidence that ,this hostility 

continued into 2004. In addition, there is no evidence that the company was hostile to employees 

raising safety issues. One ofDo.wlin's witnesses testified.that amineds .. not.required to operate 

equipment when visibility is too poor to work safely. {Tr. 168). There was no coincidence in 

time between the protecte4-activity and the.adverse action. Although D0wlin made·claims of 

disparate treatment, I credit the testimony of Rosander that the: damage to. the feeders .was .more . 

extensive than he had ever seen. ·He determined that Dowlin should be:reassigned based·on the 

damage caused, the dozer. track marks, Stevenson's statements, and Dow in~s adniission that.he·. · 

damaged at least one feeder. Rosander did not:believe.that his wages, w.ould ·be adversely ·.· : 

affected. Although Dowlin believes that he was the only employee who was transferred-' to·' . · , · 

another piece of equipment for damaging the feeders, he admitted that other employees have 

been transferred for causing.other equipment.damage. (Tr. 137). He also testified that several 

employees who were not:transferred caused·more equipment damage-than he:did. ' (Tr: ·144);: All 

of his evidence on this issue is quite anecdotal and, does not establish disparate treatment: 

In a discrimination case, a judge may conclude that the justification offered by the 

employer for: taking.an adverse :action is · so weak, so:implausible ·:or .so out.of line.-with .normal 

practice. that it was ·mere pretext seized .upon to cloak the. di~criminatory motive:~ · Chacan:;-at J . 

FMSHRC 2516. The Commission explained the:-proper .criteria for analyzing. an operator's., .. ·: · :: 

business. justification .for. an .adverse action:· 

The Commission and its. judges hav.e neither, the statutory 

charter nor the specialized expertise. to sit as a super grievance or 

. arbitration beard meting.out industrial .equity . . Once it appears that 

.... 

. a: proffered :business justification is ·not .plainl;y-incredible. or · · 

implausible~ a finding of.pretext is inappropriate.i We ·and-ourjudges should :not substitute for the operator.' s business judgment 

our views on good" business·practice ot-:on whether a .particular 

adverse action was "just or "wise." The. proper focus, pursuant-to 

Pasula, is on whether a credible justification figured inte the . 

motivation and, if it did, whether it would have led to the adverse 

action: apart from the miner's. protected activities .. If a: proffered 

justification survives pretext analysis .... , then a limited .. 

· examination-of its substantiality-becomes :appropriate. The · · 

question, however, is not whether such a justification comports 

with· a judge's or our sense of fairness or enlightened business . 

practice .. Rather the narrow statutory question is whether the . · 

28FMSHRC30 
reason was enough to have legitimately moved thatoperator to . 

have disciplined the niiner. . 

Chacon, at 3 FMSHRC2516-17 (citatiorisomitted). 

I find that Western Energy's alleged business justification for reassigning Dowlin to 

operate a haul truck is. credible. The' reasons set forth by Western Energy for· disciplining and 

reassigning Dowlin were "enough to have legitimately moved the:operator to have" taken·those 

actions. Haro v. Magma Copper Co., 4 FMSHRC 1935, 19J8. (Nov. 1982): I conclude thatthe 

evidence establishes that the verbal:waining. aitd reassignment to' operate haulage trucks was not 

motivated by Dowlin' s protected activity . . 

2 •. Separation from Employment . 

. Dowlin argues that·hewas temiinated:from his employment in March 2004 when: he ·. 

refused to .operate coal hauJ trucks· and requested medical· leave for his mental:condition :brought' 

on by the company s discriminatory.actions.· . He contends that he-did not tell Hoienbeck thathe. 

was quitting and. that he left·his request for medical leave in the. crew ·shack for the supervisor on:. 

the day'.shift. , Given his 15 years of employment with: the.company; Mr.. Sprenger should ha¥e· : : 

inquired as to his intentions rather than.assuming that he quit. He believes that:he was fired·by. 

the company when it chose to ignore his request for medical leave; Dowlin also· points to 'the 

intake notes of the physiciaiis·and counselors who· treated.him following .his termination :from . 

employment which state· that.his mental condition·:was theresult.ofhi~ discriiriinatory,treatment 

by his employer. · , · ·' . · - · ... 

.. · . . . · . . : : 

At the-close ofDowlin's cas.e, Western Energy moved for summary decision:and asked . 

that this case be dismissed. (Tr. 188). I took the motion under advisement. (Tr .. 201 ). After the 

testimony ofHolenbeck and Rosander, Western Energy renewed its motion. (Tr. 266). 

Following oral argument,! granted Westem Eneigy s motion to·-dismiss. (Tr. 267-71) . . , ... ·· 

Western Energy argues that Dowlin quit hisjob.when he-leftthepropertyjust before , 

midnight on: March 3, 2004. (Exs. C-8, R-4). Holenbeck; the relief shift boss,.believed that 

Dowlin had quit and-he wrote a memo to .his supervisor·setting forth his conversation with. 

Dowlin. In addition, the intake notes of the physician in Billings who: saw Dowlin in :March: 

2004 indicated that Dowlin-told him that he had quit his job. (Tr. 107; Ex. C-4~ R-2) . . Dowlin 

stormed off the mine in anger and failed to return. At the hearing, during.oral argument, Dowlin: 

stated that he "walked off.the job." (Tr. 191). As a consequence, the company argues-that there 

was no adverse action. 

Assuming that there was•an adverse action,. Western Energy argues that Dowlin s alleged 

termination is too.remote in time to relate back to his complaint to: MSHA in August 2002. 

There is no connection·between Dowlin's safety complaint and the companis treatment ofhiin ' 

in March 2004.-: Finally, Western. Energy argues that no relief can be given -in ahy'event because.· • 

28FMSHRC:31 
the Social Security Administration subsequently determined that powlin was eligible for 

disability benefits retroactive to March 4, 2004. Thus, the Federal government.ha8 already 

determined that Dowlin is not capable of working or earning a living. The Commission cannot 

grant Dowlin back pay or reinstate him in the :face,of this determination by the Social Security 

Administration. 

I find that-Dowlin did not establish that he was involuntarily terminated, from his . 

employment: I find that Western Energy, in good· faith, believed that Dowlin had q.uit. Do~lin . 

did not advise Holenbeck that he was requesting medical leave. Rather, he. left a form for such a 

request in the crew shack. I credit the testimony of Holenbeck that he·,believed.Dowlin had quit. 

There is no evidence that W estem Energy intended to terminate Dowlin as a result of his actions. 

A mine operator is not permitted to provokeamiμerwho has engag~d in protected 

activity so that he quits or takes actions that subject him to discipline. In such a case a miner's 

"impulsive behavior" may be overlooked if he was: wrongfully provoked .by the mine operator. 

The Commission has '~recognized the-inequityofpermitting an .. employerto.discipline an ·_.. " 

employee for actions which tlie employer provoked." .Sec'y of La.bor.on behaljof}ffcGill :v. U.S. 

Steel mining Co. , 23 FMSHRC 981, 992 (Sept. 2001). Although Dowlin did.not tais~ this . 

argument; a Commission judge is "obligated: to determine whether the actions, for which· the 

miner was disciplined were. provoked by the: operator's-response te the miner1 s ,protected -activity . 

. . . " Id . . In this case,; Dowlin was not disciplined ·for his impulsive behavior butJris· behayior led 

the company. to believe that .he had quit. · "Whether .an -employee~s. indiscrete reaction to .being 

provoked· is .excusable-is.a question that-depends· .on the ·particular. facts 1and circumstances of' , ·. 

each case." Sec'y of Labor on behalf of Bernardyn v. Reading Anthracite Co., 22 ·FMSHRC 298; 

306 (March 2000). I must determine whether Dowlin's conduct is within the scope of the 

"leeway" courts :grant employees whose ''behav.ior takes place in response.to an employer's 

wrongful provocation." Id. at 307-08. · 

I find that Dowlin should not be granted leeway in. this case: I recognize that Dowlin has 

a history of mental illness. Apparently he attempted suicide in the early 1990s. (Bxs. C-6, C-7). 

Nevertheless,. the incident that provoked Dowlin was simply the·reassignment.to 'drive a haul 

truck the following week. He did not want.to drive a: haul truck ·because he folt'itwas' a "boring" 

job and he would be subject to greater supervision by-management. Jn.response, Dowlin 

threatened· Holenbeck and stormed off the property. There, was no immediate threat to Dowlin' s 

safety or health and he was fully trained.and qualified to operate: a .coal haul truck: He simply · 

preferred to operate a reclamation dozer. I find that managemenes reassigninent of Dowlin to 

another-piece of mobile equipment did not constitute a wrongful prnvocation under the Mine 

Act. 

I also·find that constructive discharge does not apply to this situation: .. A.miner can claim 

that he was, constructively discharged if the mine operator !~created or maintained . .conditions so. 

intolerabl~ that a re~onable miner would have felt compelled to resign." Sec,'y of Labor on 

behalf of Nantz y. Nally & Hamilton'Enterprises;. Inc., 16 FMSHRC 2208, 22-10. (Nov; 1994) 

28 FMSHRC 32. 
(citation omitted); Secy of Labor on behalf of Bowling v. Mountain Top Trucking Co., 21 

FMSHRC 265 (March 1999).3 In this instance, there is no showing that Dowlin's safety was at 

risk at the time he left the mine or that, by driving coal haul trucks, he would be placed in an 

unsafe situation. He.had.driven coal haul truGks_in Uie·past and there was.no evidenc~ that_ these 

trucks were unsafe. In addition, Dowlin was assigned to operate a dozer on that shift. A 

reasonable miner would not have felt compelled to qt,rit. Dowlin's decision to leave the ~ 

was related to his idiosyncratic mental impairment rather than a reasonable fear that he would be 

asked to perform an unsafe task. . 

Dowlin contends that mine management, including Rosander, harassed him for years and 

that the events of early 2004 were the final straw. He feels that Western Energy treated him 

unfairly and that the company is partially responsible for his mental problems. Dowlin 

introduced evidence to show that Rosander and other managers had been treating him unfairly 

well before he made his safety complaint in August 2002. (Tr. 38-39, 49-50, 137-38, 145-46, 

158). Although such disparate treatment may have been unfair, assuming Dowlin's allegation is 

correct, the Commission "does not sit as a super grievance board to judge the industrial ments, 

fairness, reasonableness, or wisdom of an operator's employment practices except insofar as 

those policies may conflict with rights granted under section 105( c) of the Mine Act." Deliso v. 

Mathies Coal Co., 12 FMSHRC 2535, 2544 (Dec. 1990). As stated above, I find that Western 

Energy's actions did not violate the anti-discrimination provisions of section 105(c). 

ID. ORDER 

For the reasons set forth above, the discrimination complaint filed by Floyd Dowl~ III, 

against Western Energy Company under section 105(c) of the Mine Act is DIS SSED. 

Richard W. Manning 

Administrative Law Judge 

3 Constructive discharge is typically upheld in situations were the employer's conduct is 

egregious. See, e.g., Liggett Indus., Inc. v.FMSHRC, 923F.2d150, 152-53 (10thCir.199l)(court 

agreed that welder with diagnosed respiratory condition was justified in quitting inadequately 

ventilated mine where operator demonstrated no intention of improving ventilation); Simpson v. 

FMSHRC, 842 F. 2d 453, 463 (D.C. Cir. 1988) (miner justified in quitting rather than continuing to 

work in mine in which operator was responsible for multiple ''blatant" safety violations that had 

repeatedly and continually occurred). 

28FMSHRC33 
Distribution: 

Amber M. Haff, 6680 Duck Creek Road, Lamel~ MT 59044 (Certified·Mail) • 

Floyd Dowli~ III, 1113 ·w. Annells Road · Forsyth,. MT 59327-9469 (Certified Mail) 

Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver~ CO 80202,. 

1958 (Certified Mail) 

RWM 

••I 

• • .. • • # •' 

• i .' • ' • I• 

. . . . ' .. 

28FMSHRC34 

. . . . ...... . 

. : •,. . . . .. 

. . 

.. · ... 

••'•I 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

· Washington, oc 20001 · 

January 24, 2006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

CNIL PENALTY PROCEEDING 

'Docket No. CENT 2004-212 

Petitioner AC. No. 29-02170-32227 

v. 

SAN JUAN COAL COMPANY, 

Respondent 

Sari Juan South 

DECISION 

Appearances: Michael D. Schoen, Esq., Office of the Solicitor,·u; S. Department ofLabOr, 

Dallas, Texas, fotrPetitiorier; · · : · · : . ·· .:: · 

Before: 

Timothy M .. Biddle, E~q .. Daiiiel w: Wolff; Esq., Crowell & Moring, LLP, 

Washington, D.C., for Respondent. · ·· 

Judge Hodgdon 

This case is before me on a Petition for Asse5sment of Civil Penalty brought by the" . : . 

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

San Juan Coal Company, pursuant to section 105 or'the Federal Mine Safefy and He.alth Act of 

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

and safety standards and seeks a penalty of$13,524.00. A trial was held in Fanniligton, New 

Mexico. For the reasons set forth below, I modify a citation mid an order,. affirm the third 

citation, and a5sess a penalty of$10,~24.~. · 

Backatound 

San Juan Coal Company operates the San Juan South Mine, an underground coal mine in 

Waterflow, New Mexico. The mine operates 24 hours a day, seven days a week, in three ten 

hour shifts per day. The day shift~ 7:00 a.m. to 5:00 p.m:, ·and the afternoon shift, also called the 

"swing' shift, 4:00 p.m. to 2:00 a.m., are production ·shifts. The "grav.eyard" shift; 10:00 p.m. to 

8:00 a.m., generally performs maintenance (which explains why it is also known as the 

')naintenance" shift). 

Coal is mined by the· longwall method. The ·tongwall miner in the 102 longwall panel, the 

area under consideration in this case, consists of a double cutting drum shear which is conveyed 

back and forth across the coal face on ~ conveyor system, cutting the coal. Th~ coal falls onto a 

28FMSHRC35 
. ' .. 

pan line below the shear and is transported to the headgate to be taken out of the mine. The roof 

is supported by 176 shields ranging across the longwall face, which measures 1,006 feet. After 

the shear cuts the coal, the shields automatically advance toward the face, providing continuous 

support for the newly exposed roof. 

Except for the first four shields on ~ach side of the face, whicJ1 are slightly larger. the . " . 

shields are five feet wide at the bas~. As cqal is mined, the continuous cuttmg action <?f the shear 

causes coal dust, coal partic.les. and cpUnks of coal to accumulate on the shields. These . 

accumulations are cleaned off of the shields mainly by the use of high pressure water hoses 

which are located every ten shields. If the coal is too large to be cleaned off by the water, shovels 

are used. Of the six man longwall crew, two miners called "propmen" have the primary 

assignment of cleaning the longwall shields. 

MSHA Inspector Donald E. Gibson, the Field Office Supervisor in MSHA s Aztec, New 

Mexico, field office, went to the mine on M:μ-c]l 22, ~004, to conduct a five day spot inspection.

1 

After reviewing the mine records and meeting with management officials, he went underground 

with Monty Owens, San J.uan's.safety representative, and St~ve ~elkins, the.μllners' .· 

representative, to inspect the 102 longwall. They arriv~ at the -h~adgate at about 7 :30 a.m:, 

shortly after. the beginning of the day, shift. The longwall w~ n~t iii operatio~ b~cause the 

miners were oonstructing an isolation stopping.

2 . . . " .. 

Inspector Gibson proceeded across the longwall face. When he an:ive4 in the area of. ~ 

longwall shield 130 he observed that shields 130 through 176 had accwilufations ofloose coal 

and coal dust on the jack legs, ·On the toes of the shields, as well as on the base o( the shields and 

the leminscates. The a9cuniul~tions measured between i/8 in~h and 10 .incliei; in ·depth.' ~ased 

on his observations, Inspector 0bsori issu~ Citation No. 68527~ · 

After issuing the citation, Inspector Gib~~ continued his in.Spection to the· tailgate area 

and the Nos. 2 and 3 return air entries. When he arrived at the No. 3. entry, Jie noticed that the 

area next to a check curtain~ directing air into the No. 2 entry, was black with float co31 .dust. He 

went to the No. 2 entry and observed that both entries were black with float coal dust. The .. 

inspector examined along both entries, and noted what he believed to be impermissible float coal 

dust accumulations from crosscuts one throtlgh 1i. · As a consequence, he issued Order No. 

4768528. 

Citation No. 4768527 and Order No. 4768528 were contested at the .. trial. A third 

vioiatfon, .setout in Citation No. 7605679, was included in tlus docket. S~ Juan stipulated that . . . . . . 

1 Because the mine liberates more than one million cubic feet of meth~e ~er day it i~ subject to a 'spot inspection . .. every five working days ~t irregul~ intervals." 30 U.$.C. § 81J(i). . . . .. . . . " 

· 

2 The iast tinie coal had been niliied w~ on the preVious day's afternoon shift~ .. 

28 FMSHRC '3'6 .. 
Citation 7605679 properly alleged a violation of section 75.403 of the regulations, 30 C.F.R. .. 

§ 75.403, and agreed to pay the assessed penalty of $324.00 iil full . .(Tr . . 11-12.) 

· · . Findines of Fact and Conclusions of Law 

Citation No. 4768527 

This citation alleges a violation of section 75.400 of the. Secretary's regulations, 30 

C.F.R. § 75.400, because: · 

Accumulations ofloose coal and fine coal dust w[ ere] . 

permitted to accumulate on the shields on the 102 Longwall 

:retreating working section. · 

The accumulations were .on the·leminscates,. both top and 

bottom, from .shield 130 to shield 176, inclusive .. The . 

accumulations were dry. 

The accumulations were teft from the afternoon shift which, 

stopped mining at 0200 hours 3/22/04. 

Several discussions occurred.with mine:management. 

concerning cleaning off ofthe shields; , . 

. · The accumulations ranged from l/8!~, to 10" deep. · 

(Govt. Ex. 10.) Section 7 5 AOO:requires that: · 'fCoaltdust, including ..float coahdUSt deposited on 

rock dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings; or on diesel-powered and .electric equipment· 

therein. "3 · 

The Respondent does not deny that the accumulations .existed as observed .by Inspector 

Gibson, but maintains that the operator was not given an opportunity to clean them up before the 

citation was issued .. In making this argument, the company focuses on the "shall be,cleaned tip" 

language of the regulation. On the other hand, the Secretary, emphasizing "not be permitted to 

accumulate," asserts that if there is an accumulation, there is a violation. While the facts· in some 

case may require that a line be drawn between the two interpretations, this is not that case. Under 

either reading,. San Juan violated the.regulation. 

The company argues that the afternoon shift "just ran out of time· before .. they were able to 

wash down all 176 shields~' and that "it was perfectly normal for a subsequent·production shift to 

pick up cleaning where the previous production shift left off." (Resp. Br. at 20.) Thisiargument 

might have merit ifthe subsequent production shift began when the previous produttion:shiftleft 

3 This language, with the exception of the words "diesel-powered. and," was taken·, · · 

verbatim from section 304(a) of the Mine Act, 30 U.S.C. § 864(a). 

28FMSHRC3T 
off, but that is not the case here. Instead,. at least five and one half hours.elapsed between-the 

time the afternoon .shift left the mine and Inspector Gibson :issued the citation. 

The Commission has.long held thatthe legislative history of the Mine Act "demonstrates 

Congress' intention to prevent, not merely to minimize, accwnulations. The standard was 

directed at preventing accumulations in the first instance, not at cleamng· up the-inaterials·witbin 

a reasonable period of time after they ~ave accwnulated." Old Ben Coal Co., 1 FMSHRC 1954, 

1957 (Dec; 1979): .The Commissfon werit-on to· state that: "We hold that a violation of section 

304(a) and 30 C.F .. R. § 75.400 occurs when an accwnulation of combustible material e:Xists." Id. 

at 1958. Since there is no dispute that the accumulations on the shields existed, it follows that it 

was a violation of the regulation; 

Furthermore, even if it is inferred that the operator·has to be ·afforded an opportunity to 

clean up the accumulations, this operator made no attempt to clean the accumulations up within a 

reasonable time. The maintenance·shift apparently made no effort to clean up the accumulations 

and the day shift had not started to clean them up at the time .that .the inspector discovered them 

even though the:shiftbegan at 7:00.a.m. As·the Commission.has stated: 

The goal of reducing the hilzard of fire or explosions in a mine by 

eliminating fuel sources is effected ·by-prohibiting the accumulation 

of materials that could be the originating sources of explosions or 

fires and by also prohibiting the accumulation of those materials 

· that·oould feed.-exj>lOsions.ot:fires originating· elsewhere in, a mine. 

. . . . " -. ,· ·~ .• . ·.. . : : 

Black Diamond Coal Mining Co., 7.·FMSHRC .1117, 1120 (Aug: 1985). This danger exists'as 

long as the accumulations exist. The danger does not cease to exist when a production shift· is 

followed by a maintenance shift or when the day shift is putting in an isolation stopping. In this 

case, the operator took.no action to clean=-up the·accumulations·for over five hours · · 

Accordingly, I conclude that the.company violated section· 75.400 as: alleged. · 

Significant and Substantial 

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

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

as a violation ~'of such nature as could significantly and substantially contribute to· the cau·se and 

effect of a coal .·or other mine .safety or health hazard.'~ A violation is properly desigDated. S&S 

''if, based upon the particular facts surrounding that.violation, there exists·a reasonable likeljhood 

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 (Apr. 1981) 

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission enumerated four criteria 

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

28FMSHRC38 
F.3d 133, 135 .(7th.Cir. 1995); Austin Power, Inc. v. Secretary;.861F.2d99,. 103-04 (5th Cir. 

1988), ajf'g-Austin Power, lne., 9·FMSHRC 2015, 2021(Dec.1987) (approving Mathies 

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

U.S. Steel Mining Co.,.Jnc., 6 FMSHRC 1573, 15.74.(July 1984). The question of whether a · 

particular violation·is.S&S must be based on the:particular facts surrounding.the·violation. · · 

Texasgulf, Inc.;.lO.FMSHRC 498 (Apr. 1988);.Youghiogheny & Ohio Coal Co., 9 FMSHRC 

2007 (Dec. 1987). . . . 

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

safety standard; (2).a distinct.safety hazard contributed to by the violation; (3):aieasonable .. 

likelihood that the hazard contributed to will result in an injury; and ( 4) a reasonable likelihood 

that the injury will be of a reasonably serious nature. Mathies, 6 FMSHRC at-34. I.have already 

found a violation ·of a safety standard. I further find-.that the accumulations contributed. ~o a · 

distinct safety haz;n-d, i.e. as the originator or·feeder of a fire or an•explosion. Thus~as is:. almost · 

always the case, the question of whether the violation is.S&S.tums.on whether the hazard,.:· 

contributed to will result in an injury. 

. .. 

In connection with accumulations, the Commission has held, with regard to the third 

Mathies criterion~ that: 

. ·, .· 

. When evaluatjng. the· reasonable-likelihood .of a fire, ignition, -or . 

.·· .. 

. explosion, the Commission has,examined whether a "confluence.of 

factors" was present based on the·particular· facts .. surrounding the 

violation ... Texasgulf, Inc., lO·FMSHRC.498, 501(April1988) .. 

Some of the factors ·include the extent of accumulations, possible 

ignition sources,·the presence·of me~e, and the type of 

equipment.in the area. Utah Power-&Light Co., 12 FMSHRC 

965, 970-71(May1990) ("UP&L"); Texasgulf, IO FMSHRC at 

500-03. 

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). 

. ' 

Inspector Gibson testified that the accumulations were "the worst that I'd seen" in his 

many inspections of the longwall and the mine. (Tr. 104:). Theywere·extensive, ·covering up to 

46 shields, an area of 230 feet, in deposits up·to 10 inches in depth. They were also dry. (Tr. 

104.) In addition to the extensiveness of the accumulations, the mine liberates more than one 

million cubic feet of methane per day. Finally, witnesses testified: (l) that the bits on the shear's 

drums caused sparks when striking rocks or metal, such as .the sprags on the shields; (2) that 

there were electrical cables along the face as well as electrical ·equipment; and (3) that all of these 

could serve as ignition sources for a fire or explosion. (Tr. 84, 105, 117-18, 213.) 

. '. 

28FMSHRC39 
The Responaent argues that since no coal was produced· on the maintenance· shift, since 

coal had ·not been. produced on the morning shift:when the inspector. wrote· the·citation ·and since 

it was the company's normal policy to clean: the accumulations on.the shield before resuming 

mining;.the:Secretary has not established a reasonableJikelihood· of an ignition. ~- This,. however, 

ignores the length.of time the accumulations were present; the.fact ~aLmaintenance was· · 

performed on the longwall during the maintenance shift; which would mear1 that the.electrical 

equipment was activated in addition to the possibility that whatever tools the mafutenance·miners 

were using could be a source of ignition, the fact that with the ignition of methane anywhere in 

the mine the accumulations·could pi:op·agate and increase the severity=of a fire :or explosion, and 

the fact-that continued normal mining· practices.would involve operation:of·the ·shear. · . . 

. · · Accordingly~ I conchide·that the· Secretary has established a reasonable likelihood that a 

fire or ·explosion 'involving the accumulations·· would ·occur, resulting in an injury.· It goes without 

saying that any injury sustained· in a· fire or explosion·would be a serious one. Therefore,:l · 

conclude ·that the violation was "significant and substantial." 

Unwarrantable Failure 

This violation was also charged as resulting from the ''unwarrantable 0failure,, of the 

company to comply with the regulation.

4 The Commission has held that unwarrantable failure is 

aggravated conduct constituting more than ordinary:negligence:by a mine operator in relation to a 

violation of the· Act .Emery Mining Corp;, 9:FMSHRC,1997, 2004(Dec: 1987k Youghiogheny, 

9 FMSHRC at 201:0-. "Unwarrantable failure is· characterized· by such conduct as 'reckless 

disregard,' 'intentional misconduct,' 'indifference1

: or a 'serioo.s lack; of reasonable care.' [Emery] 

at 2003-04; Rochester &Pittsburgh.CoalCo,,. 13 FMSHRC 189; 193:..94(Februar}r1991). " 

Wyoming Fuel Co., 16 FMSHRC 1618, 1627{Aug: 1994);"see'lllso·Buck·Cteek'Coal, Inc. v. 

FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's·unwarrantable failure 

test). · 

The Commission has established several factors as being determinative of whether a 

violation is unwarrantable, including: · · · 

[T]he extent. of a. violative condition, the length of time it has 

existed, whether the.violation is obvious, or.poses a ·high degree of · 

danger, whether the operator.has been placed on notice that greater 

efforts are necessary for compliance, and the operator's·efforts in 

abating the violative condition.· ·Mullins & Sons Coal Co., 16 

FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co;, 14 FMSHRC· . 

1258, 1261(Aug.1992);.QuinlamlCoals;1nc., 10FMSHRC705;' 

4 The tenn "unwarrantable failure" is taken from section 104(d)(l) of the Act, which 

assigns more severe sanctions for any violation that is caused by "an unwarrantable failure of 

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

28FMSHRC40 
709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 

1984); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug . . 

1992); Warren Steen Constr., Inc., 14 FMSHRC 1125, .1129 (J.uly · · 

.1992). 

Cyprus Emerald Resources Corp:, 20 FMSHRC 790, .813 (Aug. 199.8).;: 

.. ' 

Some.of these factors·are present in this case. As already noted, the accwnul.ations were· 

extensive and obvious. They had existed since the end of the aftemoon.shift;.or appro~imately 

six hours. s Further, as the company has admitted, no attempts were made to clean-up the 

accumulations between the time· the afternoon shifto shut down and· the time Inspector Gibson 

observed ·them. Nevertheles.s, taking ev~cything· into consideration, I do not find that this . 

violation resulted.from-the operator~s UiiWafl'antable failure. 

Based on the company~ s history of. violations, discussions between mine management and 

Inspector Gibson,.and .. MSHA's ~'WinterAlert Pro~" the· Secretary argues that-the opei:ator 

had been placed on notice that greater efforts were.necessary for compliance in this.area. The .. · '. 

Secretary's reliance on these factors is misplaced. 

According· to the operator's Assessed Violation History Report, ·the company was cited · 

47 times for violations of section.75.400 between January 2PQl:and Mcu;ch-2004. (Govt. Ex. 9.) 

For a mine the size·ofthis·one; that does no.t:seem.to be a significant number of.citations, 

particularly since, as Inspector Gil>$0n testified,·section.7S.400 was the most:frequentl¥ cited 

section of the regulations, industry-wide; in 2004. (Jr. 136.) Fpr. ~·putting the operator on notice 

of the necessity for greater efforts at compliance," these citations take on even less importance 

inasmuch as none of them were for accumulations· on the shields. (Tr . . 135:) Consequently, I do 

not find that-the company's previous violations should have put it on notice that -it needed to 

make greater efforts to control accumulations on the shields. 

The parties stipulated that prio~ to this. :v,iolation "San Juan management acknowledges 

several previous discussions with Inspector Gibson concerning the need to clean the shields ef 

coal dust accumulations." (Tr. 58-59.) David Zabriskie, the afternoon shift longwall supervisor, 

testified that Inspector Gibson.and the· other inspectors were:always·pointing out.areas w:here 

improvements could be mad.e, but. that he did not· "consider it a. warning as much as I did good 

advice because of their experience." (Tr. 210.) Similarly, Scott Jones, .the·General Mine. 

Foreman, said that Inspector Gibson "kind of made comments to me that, you know, you need to 

watch your cleanup in that area, you need to make sure that you're continually cleaning those 

shields and keeping them up to standard." (Tr. 335.) 

5 Inspector Gibson intimated that he believed that the accumulations might have existed 

for longer than a shift. (Tr. 110.) In view o.fthe fact that almost.three quarters of the shields had 

been cleaned, I find it highly unlikely that the accumulations .on the remaining quarter of the 

shields had been there throughout the whole afternoon shift. 

28FMSHRC41 
However, to raise a violation to the level ofunwamintable failure, there have to be more 

than just discussions. As Inspector Gibson testified, .he and· mine officials had had discussions 

ever since his first visit to the· mine-. (Ti. 108.) For the discussions to put the .operator on notice 

that greater efforts at compliance are necessary, they should be admonishments of that effect. 

General discussions between operators and inspectors occur all the time, but they do not make 

every violation an unwarrantable failure. As Jones.testified, -neither Inspector Gibson nor the· 

other inspectors ever told them that their method of cleaning the shields was inadequate or that 

they needed more miners working on the cleanup.· {Tr. 335-36:) Therefore, I do. not .find·that 

these discussions put the company on notice that greater' efforts at-compliance.were needed: . .. 

;. . . .. " 

The last .type. of notice·that the Secretary relies on "is· MSHA' s ·"Winter Alert Program.". · 

Inspector-Gibson testified that historically most mine explosions occur betweeri'October·and : 

March. Accordingly, since the 1970's.MSHAhas had:a·"Winter Alert''. campaign to remind · 

operators of that fact. He said that in the winter 2003-2004, MSHA was emphasiiing 

"ventilation, .examination, permissibility and rock dusting}." '(Tr: 110.}' As .with·the general 

discussions, there is no evidence· that the company. was -ignoring the ·yearly· alerts or had· a general' 

practice of not properly cleaning up· accumulations.· · · •, · 

As counsel for the Secretary acknowledged in his opening statement, the Secretary's 

foundation for claiming that the operator unwartaritably .failed to· comply with ·the regulation ''is 

based· primarily on the mine's·management's notice-0fthe·requirements of the Act and a greater · 

need for compliance with: the· Act" ·('fr. 8.) This m tum 'was based prineipally on many · . · · 

conversations that Mr. Gibson and/or·othermine inspectors· had· had with mine manageihent · ·· 

.... " (Tr. 8-9.) The evidence does not support this Claim .. ·.. · · · · 

Further, the evidence shows-that the company had two "propmen'" assigned to; each 

longwall, whose primary function was to clean the longwall shields: ht addition,:the· operator had 

not previously been cited for accumulations orrthe·shields. Thus, while :Hind 1hat·the 

Respondent was highly negligent w~th regard to this violation, I do not find that its negligence 

rises to the level of reckless disregard, intentional Iilisconduct; 'indifference·or a serious· lack of 

reasonable care. 

Accordingly, I conclude· that this violation was notthe result of the operator's 

unwarrantable failure to comply with· the regulation. The citation will be modified' to a 104(a) 

citation, 30 U.S.C. § 814(a). 

Order No. 4768528 · 

This order alleges a violation of section 75.400 because: 

Accumulations of dry float coal dllst·depositoo on·rockdusted surfaces was permitted to accumulate in the #2 and #3 

return air entries of the 102 Longwall workiitg section. 

28FMSHRC42 
-··The accumulations began just outby crosscut #22 and 

extended outby to crosscut #1 in both entries including the 

crosscuts for a distance of3,000 feet. Methane in both entries 

ranged between 0.2-0.4 per centum through the entire distance. 

This area was traveled by the weekly·examiner on 

03/18/04 and. the float coal dust was noted in the record book 

countersigned by the mine foreman. 

Other violations for this same condition have been issued to· 

the operator. One was issued on 2/28/04 that included 3,900 feet 

in the #2 and #3 entries of the 102 Longwall. 

At crosscut #9 there w[ ere] 2 wooden pallets and a 

cardboard ·box up next to the stopping. 

Numerous discussions have been held with mine 

management concerning rock dusting·and clean-up on the.shields. ._ 

The .condition noted :by the weekly exaniinet was corrected 

on day shift on 03/18/04 by two miners. The area was rock dusted. . · . , 

Seven production shifts: occurred after the.area was dusted. · 

Approximately 56 passes ·by the·shear w[ ere] mined at about .1-;500 

tons per pass or 84,000 tons .. Due to.the dryness of the coaland · ·. · 

more float dust being generated, more attention to· the; condition.of 

the return entries should have been made by management. 

(Govt . . Ex; .11.) • .i ' . , ~ . · ... ' ' 

After writing,the. citation for the shields, Inspector.i Gibson proceeded ·to· the.tailgate: of the 

longwall, to the number 2 and 3 return air entries. He testified that "the area was black with float 

coal dust." (Tr. 114.) He related·that there·was a checkcurtain across .the number 3 entry, 

directing air into the number 2 entry. He said that he went tln>ough, the,.curtain into· the number 3" 

entry and started heading outby. ·He said both the number 2;and 3 entries were.black.with.float,. 

coal dust, the "worst" that he had seen. (Tr. 115.) He said .theJloat coal dust:wasdry and · 

continued through both entries to crosscut numb.er 1. Hetesti:fied.;.that:it was··thickenough that-he 

left palm prints on the ribs.and footprints·on the floor. (Tr. 115.) The.inspector further testified 

that he observed two wooden pallets and a cardboard box, also combustible materials, next to the 

stopping in crosscut number 9. (Tr. 154.) 

Similar to its argument with regard to the previous citation, the company does not deny 

the existence of the accumulations, but asserts that since the area had been rock dusted on March 

18, four days earlier, it should not be cited for accumulations without a showing that the rock 

dusted accumulations did not meet the requirements of section 75.403, 30.CF.R. § 75A03;6 This 

argument would be more persuasive if section 75.400 did not specifically require the cleaning up 

6 Section 75.403 calls for rQck dusted areas in return entries to have an incombustible 

content of 80 percent. 

28FMSHRC43 
of accumulations of"float coal dust deposited on rock-dusted surfaces.0 Plainly, float coal dust 

deposited on rock-dusted surfaces.is dangerous whether. or ·not the ro.ck-dusted surface below it is 

incombustible. 

Here float coal dust was depo~ited on rock-dusted.·surfaces.to such an extent that they 

were black. According to Inspector Gibson this was· observable ·right at the tailgate and got 

worse down the entries. The deposits were deep enough to. leave hand .and foot-prints. 

Therefore, I conclude that.the company violated section 75:400 .as alleged. 

Significant and Substantial ·. . 

Inspector Gibson charged this violation· as, being ."significant and substantial." He based 

this determination on the amounts of float coal dust and the fact that it was very dry so that 

"[a]ny forces going through there would :Only.pick the float dust up and contribute1o any forces 

of an explosion." (Tr. 117;) He also considered the presence -of methane in the mine. (Tr. 118.) 

He further testified that, in addition to the propensity for the float coal dust t«;>: exacerbate an 

existing fire or explosion, the.dust could be ignited by. [t]he shearing machine itself, the 

electrical cables along the face,-the lights, under·normal.minjng conditions there's going to be 

dust generated and again the potential of as evidenced the metal -against metal cutting bits 

contacting the sprags or hard· rock:" (Tr;· 117-18.) 

Continuing its argument made concerning the fact of violation, the Respondent contends 

that the Secretary's failure to show whether or not the rock-dusted surfaces were incombustible. 

precludes a finding that the violation was S&S. As previously noted, this contention is at odds 

with the specific recognition in 75..400·that.float coal dust·on rock-dusted.surfaces is hazardous. 

Considering this violation under the Mathies.criteria, I have-already found criterion I, a 

violation ofamandatory safety standard, section 75.400 . .!'further find: (2) that the.accumulation 

contributed to: the safety hazard ofa fue or explosion; {3) that there·was a reasonable.likelihood 

that a fire or explosion.would occur.,-resulting in an injury; and (4) that the resulting injury.or 

injuries would be serious. I make. these' .findings .for·the same reasons l made them concerning 

the.previous citation. Accordingly~ I find that the violation is "significant and substantial." 

Unwarrantable Failure 

Inspector Gibson found this.violation to result from the:company's unwarrantable· failure 

to comply with the regulation. He testified that one reason he made this finding was thaUhe 

operator had been cited on February 18, 2004, for aceumulations"of float coal dust in the numbers 

2 and 3 entries, from crosscuts 20 through 33. (Tr. 122, Govt. Ex. 7.) He.related·furtherthat;: 

The violation was extensive, it was 3,900 feet in length. 

And some of the crosscuts that I was dealing with on March 22 

overlapped at lea8t two of the crosscuts that [Inspector Vetter] dealt ' 

28FMSHRC44 
(Tr. 122-23.) 

with on February 18. So their awareness was already elevated, I 

mean it should have· been, it should have been·elevated, hey, we do 

have a problem and it should have been recognized knowing that 

·the winter alert you're in that season, the mine's more drier, the 

coal's more drier. : And I really felt that they should have been.-

had a higher degree of care displayed than what was displayed. 

The Respondent maintains that since-it was rock dusting· in the numbers-2 and 3 entries, 

"at least rock dusting as much as.it thought adequate,".it did not.act unwarrantably. ·(Resp . . Br. at 

41.) However, rock dusting is not at issue in this violation, accumulations are. -- : 

With regard.to unwarrantable failure; the following factors are significant: (-I) The · · 

operator was cited for float coal dust accumulations .in. the same ,entries .on February .18; 2004; . , : 

(Govt. Ex. 7); (2) A weekly examination report for March 15 noted the need to rock dust the 

returns.from crosscut 24 through crosscut 8, (Govt.· Ex; I); (3) A March· 18 co~truction report 

stated.that the returns had, been:rock:dustedfrom crosscut."19-to r', (GovLEx. 4)~ (4) By March. 

22, the area arthe tailgate.of the longwal1 at the numbers 2 .and J i:eturn .air entries-was black:with 

float coal dust, (Tr. 114); (5}The mine ·had been-going throughiough.conditions with·the top,,-·. 

which was "real brittlely and falling-in," and.ffoQ.rforthe last couple· of breaks, (Tr-.. 288-89);. (6). 

When coal on the longwall face is dry, it is not unusual for the bottoms of the return air entries to 

become dark or even black over the course of several days, (Tr. 350). 

By March.22, the operator had previolisly:been.cited for·:float c<>al dust accumulations iμ, 

the numbers 2 and 3 return entries and it had been alerted a week earlierthatthe entries-needed, 

more rock dusting than they were getting. The longwall supervisors were aware that the area in 

which they were currently mining was producing more coal particles and float coal dust than 

normal. The area of the numbers 2 and 3 entries right at the tailgate was black with float coal 

dust. All of this should have put the operator on notice that float coaLdust,was· accumulating in 

the return entries at a';pace that required greater: attention than waiting until the next .weekly 

examination-.before taking any action to: resolve the problem. Instead, the;company:did nothing· 

different than it would nave. done when mining·in "normal" conditions.. · · 

I conclude that the Respondent acted with indifference and a serious lack of reasonable · 

care with regard to this violation. Therefore, I find that the operator unwarrantably failed to 

comply with the regulation. . 

Citation No. 4768527 was·tjiepredicate citation for this order. In view of the fact that 

Citation No. 4768527 is being modi.fi~d to a, 104(a) citation, it can no longer serve as the 

predicate for Order No. 4768528. Accordingly, Order No. 4768528 will be modified from a 

104(d)(l) order to a 104(d){l) citation. Consolidation Coal Co., 4 FMSHRC 1791, 1794.{0ct. 

1982) .. 

28FMSHRC45 
Civil Penalty Assessment 

The Secretary ha5 proposed a penalty of $13,524.00 for these three violations.7 However, 

it is the judge's independent .responsibilify to detennine the .appropriate amowit of penalty in 

accordance with the six penalty criteria set out. in section 11 O(i) of-the Act, 30 U.S.C. § 820(i). 

Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 

18 FMSHRC 481, 483-84 (Apr. 1996). . 

In connection with the penalty criteria, the parties have stipulated that. San Juan Coal is a 

large:company, the: San Juan South Mine·'is a large mine and that payment of, the penalty in this · 

case will not affect San Juan's ability to continue.in business. · (Tr. H-13.) From the Assessed · 

Violation History Report and other documents in the file, I find that the company has a slightly 

better than average history of.violations .. J further find thatibe Respondent demonstrated· good 

faith in attempting to rapidly abate the viOlations .. · •. 

·. : ·• . 

; l find the.gravity of Citation Nos .. 4768527· and 4768528 to be-very.serious as there is · · 

nothing more dangerous in undergrotind coal.mining ,than_ fires and:ex:plosions; Thtl gravity of. ·. 

Citation No: 7605679. is serious, but ·not as serious,as the· other two'because it involves ,levels of· 

incombustibility . .I further find that the level.ofnegligencewith regard to Citatiori Nos. 4768527 

and 4768528 was "hight? and that the level 'Of negligence for Citation No. 7605679 was .· ·. 

"moderate." . : ., ... 

··. . ...... . 

Taking all of these factors into consideration, I conclude that the following penalties are 

appropriate: (1) Citation No.- 4768527-$3,000:00; (2}Citation• No·. 4768528-$6,900;00;. and (3) 

Citation No. 7605679-$324.00.· 

Order 

In view of the above;,Citation No: 4768527-is MODIFIED ftom:a 104(d)(l}citation to' a 

104(a) citation bydeletingthe"unwarrantable failure"·designation and is.·~RMED as·. 

modified; Order No. 4768528isMODIFIED froma-.104(d)(1}ordertoal04(d)(.1) citation and 

is AFFIRMED as modified; and Citation No. 7605679 is AFFIRMED.- San Juan ·Coal 

Company is ORDERED TO PAY a civil penalty of $10,224.00 within 30 days of the date of 

this order. 

1:!£~ · Administrative'. Law Judge · 

. . . 

7 The penalties are proposed as follows: (1) Citation No. 4768527-$6,300.00; (2) Order · 

No. 4768528-$6,900.00; and (3) Citation No. 7605679-$324.00. 

28FMSHRC46 
Distribution: 

. 

. .. 

Michael D. Schoen, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin 

Street, Suite 501, Dallas, TX 75202 

Timothy M. Biddle, Esq., Daniel W. Wolf, Esq., Crowell & Moring LLP, 1001 Pennsylv~a· 

Ave., N.W., Washingto~ D.C. 20004 . . 

/sb 

._ 

.· 

. ·. 

. : . 

28FMSHRC47 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey-Ave .• N.W ., Suite 9500 

Washington, DC 20001-2021 

Januar)' 26, 2006 · 

SECRETARY OF LABOR, MSHA, and 

DAVID BAGLEY, GEORGE GAMBLE 

and WILLIAM RICHARDSON, 

Complainants, 

DISCRIMINATION PROCEEDINGS 

Docket No. SE 2005~239-D '· · .. 

MSHA Case No. BIRM-CD-2005-01 

v. 

Docket No. SE 2005-240-D 

MSHA Case No. BIRM-CD-2005-04 

Docket No. SE 2005-241-D ._ 

MSHA Case No. BIRM-CD-2005-02 

JTh1 WALTER RESOURCES, INC., 

Respondent. 

MINE ID: 01-01401 

MINE NO. 7 

DECISION 

Appearances: U.S. Department of Labor, Office of the Solicitor, Heather A. Joys, Atlanta, 

Georgia, for the Complainants 

Before: 

Maynard, Cooper & Gale, P.C., Warren B. Lightfoot, Jr. and Janell Ahnert, 

Binningham, Alabama, for the Respondent 

Judge Weisberger 

These cases are before me based on Discrimination Complaints filed by the Secretary of 

Labor on behalf of miners, David Bagley, George Gamble and William Richardson. Each 

complaint alleges that Jim Walter Resources Inc. ("Jim Walter") discriminated against the miner 

in violation of Section 105 of the Federal Mine Safety & Health Act of 1977. 

Pursuant to notice, a hearing was scheduled for December 13, 14, and 15, 2005, in 

Birmingham, Alabama. At the start of the second day of the hearing, the parties indicated that 

they had reached a settlement resolving all the issues in these cases. 

The following is the bench decision that we rendered, with the exception of corrections of 

matters not of substance: 

THE COURT: ... A short while ago the parties advised me that they have 

successfully reached a settlement agreement resolving the issues raised by this 

litigation. I wanted to indicate on the record that I am extremely appreciative to 

Counsel in this regard. I can tell by the motions that were filed pretrial, by 

28 FMSHRC 48 · 
.. 

yesterday's proceedings that ·the parties put a lot of thought and preparation into 

this case. I appreciate their efforts. But most of all I appreeiate the 

conscientiousness and professionci.lism shown throughout the trial and, more 

importantly, their willingness to discuss settlement and finally having been able 

to reach cl-settlement in this matter. In chambers the parties advised me of the 

terms of the agreement. I find that the agreement is co11Sistellt with :the terms of 

the Federal Mine Safety and Health Act. I approve it. I am thankful for the 

parties resolving this matter without lengthy litigation. I feel that the terms of the 

agreement are in the best interest of the parties and most importantly consistent 

with the terms of the act and constitute their resolution of all the issues herein. Is 

there a motion by one of the parties at this time? 

MS. JOYS: Yes, Your Honor. Pursuant to the terms of the settlement 

agreement and the signing of a settlement agreement, the Secretary wants to._ 

withdraw her complaint in this matter.· · 

THE COURT: I asswne there i5n't any objection? · 

MR. LIGHTFOOT: No objection. 

THE COURT: [The] request to withdraw the pleadings is granted based upon 

the settlement in this matter . 

. . · 

.. · •,, 

. . . 

·!tis Order~d thct:tthe C:!JSe .is cl:ismissed;and it is Ordetfd Uiattbe parties agreed" 

by all the tenns of the agreement. · · · 

IL~ · Administrative Law Judge 

Distribution: (Certified Mail) 

Heather A. Joys, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, S.W., 

Room 7Tl 0, Atlanta, GA 30303 · 

Guy W. Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444 

Warren B. Lightfoot, Jr., Esq. and Janell Abnert, Esq., Maynard, Cooper & Gale, P.C. 1901 6th 

Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham, Alabama 35203 ·· 

/Ip 

28 FMSHRC 49 · 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-644-3577/FAX-30.3-844-5268 

.. . 

January 31 ~ 2006 

SECRETARY OF LABOR, . . . .. • .. · .· .. c~~ PENALrr.:r'.RocEEDINGs 

. ., Docket No~ \VEST 2005-178.-M 

A.C.No. 48-00152-:46498 . 

MINE SAFETY AND HEALTH .. 

ADMINISTRATION (M~HA). · 

Petitioner 

v. Docke~ No. WEST 2005-217-M 

A.c. No. 4&-001s2·-48519 

FMC CORPORATION, 

Respondent FMC@ Westvaco ~e 

Appearances: 

Before: 

.. DECISION 

John Rainwater, E~q., Office .of the Solicitor, I.J.S. D~~ent .. 

of Labor, Denver, Colorado, for Petitioner; · 

David L. Thomas, Safety Team Le~er, FMC CQtpqrati~n • .-... · . 

Green River, Wyoming, for Re8pondent. · · .. · · · , · 

Judge Manning 

. ' 

These cases are before me on two petitiQns for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safefy and Health Administration (''MSHA"), 

against FMC.Corporation ("f"¥C''), p\l!Suant to s~tions 105 and UQ.of!P.e.Federal Mine Safety 

and Health Act of 1977,'30 U'.S.C. §§ ·s15 and 820 (the "Mine Act") °AdJ;iehearing, FMC. 

contested three citations issued by the Secretary under section 104(a) of the Mine Act. The 

Secretary see.ks a total penalty of$6,l 10.00 for these alleged violations. An evidentiary hearing 

was held in Green River, Wyoming. The p~es introduced testimony and documentary evidence 

and presented oral argumen~. 

I. BACKGROUND, SUMMARY OF THE EVIDENCE, AND 

FINDINGS OF FACT 

FMC operates the We~tvaco. Min~, at,l undergrou,nd trona mine in Sweetwater County, 

Wyoming. 1 Mark Hom was employed at the mine as a beit electrician on Septeniher 27, 2004: 

He had been working at the mine for about 26 years. His job was to ensure that the underground 

conveyor belts were .operating properly. Th~se belts transport mined rock from the working 

sections to the mine shafts at the other end of the mine. The mmed rock traveis underground 

1 "Trona" is a soft, nonmetallic mineral that is a major source of sodium compounds. Am. 

Geological Institute, Dictionary of Mining, Mineral, and Related Terms 589 (2d ed. 1997). 

28 FMSHRC ·50-
about. five miles on these belts. (Tr. 19). He also maintained pumps. and other electrical 

equipment. There are ·about eight pumping stations around the, perimeter of the mine. The mine 

is a single-level mine.· 

. Hom was scheduled to work the graveyard shift on September 27, 2004, which runs from 

midnight to 8:00·am. The mine operates three shifts per day. The.belt.control. division of the 

mine's maintenance department was assigned one Jeep for use underground. The top and 

windshield of the Jeep had been removed. The Jeep is equipped,with· automatic transmission and 

a parking.brake. The parking brake is aetivated by a pedal. . The brilkes on the Jeep-often get wet 

and muddy as the Jeep is driven through the mine. {Tr. 27). When the brakes are wet and muddy 

they are not very responsive. In addition, from time to time the Jeep is ''used so bard that the . · 

brake lines are crushed and brake fluid ·has actually leaked out .ofit-so :that either the front or back 

[brakes are] not ftmctional." Id. ·.: 

-- Hom testified that the parking brake is rarely. very reliable and 'it never seems-to work 

properly." {Tr. 28). Hom said that he.usually eannot feel.the.:parking brake ratchet down when 

he pushes the pedal and that the pedal is bent from being pushed down so hard. The Jeep was 

converted to operate on diesel fuel rather than gasoline; . When· this, conversion was: made, the 

dash board was not properly reconnected,·with the result that noneofthe gauges-work; including 

the speedometer and brake warning light. {Tr. 29;· ·Ex; G-1 ); · . . ~ 

On September 27-Hom was driving the Jeep underground-t<>various-pumping stations to 

adjust-the water. flow. He was-.traveling from crossover station in 2 West toward .the No. 8.Shaft· 

when he arrived·at a· set ·of air, doors.:. These· doors· must be·kept closed to· maintain .the ventilation 

in the mine. Hom par.ked:his..Jeep,,.opened the·door, drove threugh;the doorway, and. parked· his : 

Jeep again.· Hom testi'fied.thatwhen:he parked his Jeep'this second time, he·putthe·vehiclefa 

park, stepped on the parking brake; and put.chocks under one of.the wheels. (Tr;· 33-34; Ex .. G3). He did· not tum off the engine: Hom walked back, closed the·.air door, and:removed.the 

chocks from the wheel. Hom thought he heard··the air rushing aroUiid:the air, door. He·wondered 

if he had forgotten to close the vent on the door. The vent.must first be opened before;the air .. 

door can' be opened or closed to.equalize the pressure on .both sides.of the door. . 37.;39; Ex. 

G-2). When he turned to face .the air-door he noticed that the vent was1closed· but he went over to 

the door to see if it was fully closed. He picked up the chocks, which were·on the ground. As he 

turned back to face his Jeep, he felt something hit him and he.was knocked backward against the 

door. {Tr. 39). When he·realized that the back of the Jeep was pushing·him against the air door, 

he took the chocks and tried to wedge them between the backbumper-and:the·air-door before the 

Jeep "smashed. [him] and the door." {Tr. 39-40). Hom ·estimates-that he had parked the Jeep 

about 20·to 30 feet from the air door. The ground was level in thatJocation-.· It was· about 3 a.m. 

when this accident occurred. (Joint Stips. 1 10). 

The Jeep hit Hom hard despite his efforts to wedge the chocks between the vehicle and 

the door. He believes that he may have passed out momentarily. He was in a sitting position and 

he was unable to move because ltjs chest·was wedged between the biimper. and the door. He 

28-FMSHRC 51 
could hardly breathe. (Tr. 42). He was able.to wiggle a little and when he looked ·under the Jeep 

he discovered that his right foot was under the left· wheel. The. Jeep was-still nmning as he· trieq 

to extricate himself from his position but his knee was also stuck in the undercarriage-of the Jeep. 

He tried to grab bis right leg to pull his foot out from under the wheel, but he was not successful. 

He reached into.the back of the Jeep, opened-the door; and started pulling things.he c.ould-reach 

out of the Jeep. '(Tr. 44). He did not find anything he·could use to help him get his·foot out. 

The diesel exhaust was .very strong and between not. being able .to breathe very well and 

the fumes, Hom believes-thathe passed.out .again.' When he awoke, he tried-again .. to pull his 

right foot out from under the wheel of the Jeep. Because he. was in . .a remote location, he realized 

that it was unlikely that anyone would find him any time:soon. After much work and 

maneuvering, Hom was.able to extrieate .his foot from under :the wheel. (Tr. 45-46);' With·a lot 

of effort, he was able to get himself up into the driver's seat of the Jeep. He drove the Je~ .up to 

the second air door and slowly pushed it open with the Jeep. He then drove to belt-control, got 

out of the Jeep:, and called the hoist man; He ~as. barely abl,e to breathe at that point. Hom was 

taken out of the mine and then.to the.hospital in Rock Springs, Wyoming. · . .. .. . : . "' ·· . 

. Hom testified that he inspected.theJeep before.he drove it that night. (Tr. 52-53);. He 

looked underneath the Jeep to.see·ifbrake.tluid was leaking ... He also applied·the·brakes.ashe 

backed out of the parking space to make sure that they were working. The-Jeep.was in its usual 

condition and he did not find anything that would keep him from using it. (Tr. 60). The power 

steering was leaking flui<:l and the brakes were not as 'good as ;they. could hav.e been;~~ :but" he 

assumed that the:brakes wete simply wet Id .. ·lf-hehad:.detennined.thatthe leep:was:not·safe. t.o .. 

operate; ·he would·not hav.e been required· to use it, buthe,would ha:ve:had to borrow one from 

another depfll1ment. . He also· has· the authority to·tag:outa Je.ep.ifitis not safe to operate. ('Ir · 

62). Rom admitted· that in the early 1980s he.took:annual refresher=safety:tests.given by EMC in 

which he was asked to explain the procedure for blocking mobile equipment: in-the mine. ·-(Tr. 

64-67; Ex. R-7). Hom responded that the .equipment. operator should. 'kill engine; set brakes, use 

wood blocks to block both sides of wheel.'! (Ex~ R-7). ·Hom testified· that he.uses thatprocedure 

when he parks the Jeep at the end of his shift::-He testified that he does not shut off the engine on 

a flat surface when he is .only going to be off.the Jeep fora moment because. of his. conoom that 

he may have difficulty .starting it again. (Tr. 68)~ Hom said that the starter motor sometimes gets 

wet while driving Through water.in the ·mine. 

· Hom suffered.extensive injuries as.a result of this accident. His internal organs.were 

pushed up through his'. diaphragm.into his left.lung cavity. (Tr. 112-13). After the extent of bis 

injuries were identified.at the Rock Springs hospi~ he was air lifted.to the LDSHospital in Salt 

Lake City, Utah, where he underwent surgery. · Complications resulted from his surgery-and he 

had to be hospitalized again. (Tr. 117-124). Hom is·still employed by ·FMC, but he is unable to 

work at the present time. 

On September 30, 2004, MSHA Inspector Duane.Coats traveled 10 the mine ·to· · 

investigate this accident. On October 4, 2004, he traveled underground to examine the area::. 

28 FMSHRC' 52 
where the accident occurred, (Tr .. 189).· At the.conclusion of his investigation? Inspector Coats 

issued three citations related to'this accident.-During his.investiga.tion, Inspec~or Coats 

interviewed Gene.Hutchinson CJD.d other FMC employees. (Tr. 165). Based _on these interviews, 

Inspector Coats concluded-that mQunti,p.g_ bolts on the transmission and engine lui.d come loose, 

allowing the transmission.to slide to the: right side so t4atwben.J}le Jeep ''was placed in park, it 

would not go all the way in park." (Tr; l_-66) .. As·a -result, theJeep co~d e.asily s~ip out of park 

into reverse. (Tr. 167). Inspector Coats also concluded that the parking brake on the Jeep was 

not working at the· time of the accident and, if the parking brake had be~ .wo.rking;. "it wo.ul_d 

have held the :vehicle in·place on level ground if ithad slipped fro.pi park to reverse as it d~d " _Id. 

. . 

Gene Hutchinson testified at the hearing. under a subpoen.a .from the S~cretary: He. is a: 

diesel mechanic .at the mine.·: Although Gene. Hutchin$on was not involved in FMC' s . ·. . : . : 

investigation of the.accident, he repaired the Jeep at the conclusion of the acc~dent investigation. 

(Tr. 130). The work order that he was given said that the parking brake was not wod<lng and that 

the transmission may have slipped-out of park.. (Tr. 130, -13.3 ). · In additjon, he:discovered that 

the neutral safety switch was not.working; .The n~utral s~fety swjtch,whichis a ')vhisker . 

switch, allows the Jeep to be. started only when it is in park: 11:t, this ill$tance, th~ Jeep,could be 

started in any gear. (Tr. 136, l54).: This switchwasperma,nentlyb<mt over. (Tr;_ 154)~ : . 

Upon examining the parking brakes, Gene Hutchin$on detennined that the parking. p~es 

did not work on either rear wheel. (Tr. 137-40, 149-51). He had to replace the entire brak~ . 

caliper system. The combination of trona and water tends to corrode the brakes. Because it was 

the calipers-that were broken, rather. than the,pCJI'king brake.cable. the rear disk brakes-were also 

not engaging when the service brakes were depressed, · (Tr. 14 l ) . . The hydraul~cJjn.es us,e4, wi1;h : 

the service brakes could not activate the disk brakes because the calipers were not working . 

. . 

Gene Hutchinson also had to replace the ti:ansmission·mount and the.left front motor 

mount. (Tr. 141). The mount is a bolt that is used·.to attaeh a,part to.the.vehicle . . ln examining 

the Jeep, he discovered that the transmission mount had broken away from the pan it was 

mounted .on. ( See also Joint Stips .• .'if: 18) .. This was, the only mounting: device on the · 

transmission .. (Tr; 142) .. Gene·Hu.tchinson believes th~t because the transmissionmountwas. 

missing and one of the two motor mounts was missing; the.transmission assembly:could move .• 

around a little. (Tr. 142-43). He, believes that.this· movement "may:. have put a stress on that · 

shifting lever that hooked to the transmission· from the. shifting· column. ~· .. (Tr. 143}; This -stress. 

could have caused the transmission to pop out of park into reverse. (Tr. 143, 146). Gene 

Hutchinson believes that,·iftheparkingbrake.had.been working; and the transmission onthe 

Jeep had popped.out ofpark into reverse.while the·engine was idling;.the parking,brake.would .· 

have been able to hold the Jeep in.placeon a level surf~e. (Tr .. i4144); The Jeep was repaired. 

by replacing the transmission·system so. that the ge.ar-shifHever is now mot1nted directly to the: 

transmission on the floor rather than through a lever on the steering.colunin. ·· · · 

.. 

Following his investigation, Inspector Coats issued, Citation No. 6302200 under·section · 

104(a) of the-Mine Act alleging a violation afsectioii.57.1410l(a)(2) .as:follows: ·. . 

28. FMSHRC 53 
A miner was seriously injured··at this inine on 'September 27, .2004 · 

when ·he was struck and 'pinned ·beneath the· rear wheel ·of.his Jeep. 

·The miner had parked the Jeep and was closing the .air door when· 

the Jeep started rolling backward and struck·him. The·parking·· 

brakes on the Jeep (Company No: 25 UM) were inoperative and 

would not hold the parked vehicle on a 'grade. 

,· 

(Ex. G-4): Inspector Coats determined that an inju.ry occurred and that the inju.ry could 

reasonably be expected to result in lost workdays or restricted duty. ·He -determined that the 

violation was of a significant and substantial nature ("S&S") and that FMC's negligence was 

moderate·; The·safety standard provides, in·part;that"[i]f equipped·on self-propelled mobile 

equipment, parking brakes shall' be capable of.holding the equipment with its typical:load on the 

maximum grade· it travelS." The Secretary·proposes a penalty of$S,500;00 for-this citation. 1 ' ~ 

Although the Jeep Was parked on level ground, the safety standard requiresthatthe 

parking·brake be capable of holding a vehicle-on the maximum grade.that it travels; .(Tr: 169). 

He determined·that the violation was S&S because.an accident.occurred that.resulted-in a serious 

injury. (Tr. 170). Inspector Coats was· told by Gene Hutchinson that the rear brake calipers wete 

not working. (Tr. 195-96). Hutchinson did not tell him whether the calipers were working on 

the date of the accident. Id. Coats was·notable to·determine when the parking:brake cea8ed to 

operate. ' (Tr. 315). 

Inspector Coats also issued Citation.No. 6302201 under section 104(a) of the Mine Act 

alleging.a-violation of section 57:14101(a)(3) 38 -follows: · < 

All braking systems were not maintained in functional condition on 

the Jeep (Company No. 25 UM). The brake calipers for both-rear 

service brakes were nonfunctional: 

(Ex. G-5). Inspector Coats determined that an injury was reasonably-likely and that the injury 

could·reasonably be expected to be fatal: He determined· that the violation was S&S and that 

FMC's negligence was moderate . . The safety·standard provides, in part, that "[a]U·braking · 

systems installed on [self-propelled mobile] equipment shalf be·· maintained· in functional 

condition." The Secretary proposes a penalty of$305.00 for. this citation. · 

The inspector concluded that the braking systems were not being maintained in a 

functional condition on the Jeep .. (Tr. 171 ). The calipers for the rear service brakes were not 

working. He bases this conclusion on statements made by FMC employees. {Tr. 172). He 

concluded that the-violation was S&S-because the absence of working rear brake· calipers-cowd 

cause a fatal accident. These· rear calipers must be furictioning f6r the rear-service brakes :to · · 

engage and for the parking brake to engage. Only the front service brakes were working on the 

Jeep.·· If the-operator of the Jeep were driving in a congested area, he might not be· able to stop in 

time to avoid a pedestrian . . (Tr; .17 4). Jn addition, if.the front brakes were to ·cease functioning,· 

28FMSHRC 54 
the Jeep would not have any brakes. (Tr. 175). Given the wet, muddy conditions in the mine, 

the inspector believed that it was reasonably-likely that the effectiveness of the front braJc:es.co11ld 

easily become compromised. Nevertheless, the inspector testified that if.the .front hr~es; were ... 

working, the Jeep could· be stopped. (Tr. 197). The J ~ is:desigp.ed with two separate hydraulic 

chambers so that, if the rear brakes fail, the front brakes will still function. (Tr. 118-19) Coats 

does not know when the rear service brakes stopped working. (Tr. 316). 

Inspector Coats also issued Citation No. 6302202 under section 104(a) of the Mine Act 

alleging a violation of section 57 .141 OO(b) as follows: 

The neutral .safety switch was not maintained in functional . 

condition on the Jeep (Company No. 25 UM). This.safety defect . 

enabled the Jeep engine to be started while the transmission was 

engaged in gear. ._ 

(Ex. G-6). Inspector Coats.determined that an injury was reasonably likely ~d .. thatthe injury 

could reas,onably be expected to be fatal. He determined that the violation was S&S,and: that. 

FMC' s negligence was moderate~ The safety ·standard provides, in part;. that"[ d]c;:f.ects on;any .. . 

equipment .... that affect safety shall be corrected in .a timely.manner .to prev.ent the creation of a 

hazard to· persons.,. The Secretary proposes a penalty of $305.00.for·this citation;:.· ·. 

. Inspector Coats testified that be issued.the citation because. the'Jleutral safety _switch o.1f; 

the.Jeep was not working. (Tr. 177). As a result ofthis defect, the Jeep could. be,startecl:in any,: ·: 

gear. When .the neutral ·safety switch is working, the. Jeep· can only be started·. in park o.r neutral.· 

The inspector testified that the cited condition is a defect that affects· safety because the Jeep.: , ~ 

could lunge forward or backward as the operator was starting it. {Tr. 179). He determined that 

the violation was S&S because it was reasonably:likely that an employee would"start the leep in 

an area congested with pedestrians. and pin someone against.a rib or another.v.ehicle. (Tr. J80). 

Because_, the Jeep could pop out of.park; .the operator of the Jeep might.not know that it. was 

actually in· reverse when he started the engine. and it could jerk backward. {Tr. 180-8.l ). He . . 

admitted. that many people put their foot on the brake when they start a vehicle .but, .. since1the. 

brakes were not working properly, the Jeep could have jerked backward.anyway. (Tr: 19~-94). 

If the idle on the Jeep were set low, the Jeep would not lunge but it could move a "little bit.'.' (Tr. 

194). 

MSHA Inspector Tom Barrington interviewed Mr; Hom at the LDS Hospital in Salt·Lake 

City. (Tr. 208-11 ). During the interview; Inspector Barrington took notes; but they are not · 

verbatim. In response to the question, "Did you set the brake?," Inspector Barrington. wrote: 

It was in park when I got out. They told me they checked the 

brakes and the park brakes didn't workat:all. They probably ·· · : 

hadn't worked since I mashed them the first of the shift. :I probably 

rode aromtd with them on without knowing it. 

28FMSHRC55 
(Ex; R-9; p. 3).· Later in the interview, Hom was asked how he.thought the Jeep rolled;onto him: 

Hom ·responded ·by stating: 

It slipped out-of park into reverse. I was told that it happened on ·· 

the second shift after me. The parkbiakes.and transmission were· 

always broke. A wheel even-fell off once. The park-brake virtually 

never worked. There was something always wrong with it. 

Id. at 5. Neither party called Inspector Barrington-to testify at the hearing. On October 12, ·2004, 

Inspector Coats, company representatives, and a union representative held a conference call with 

Mr. Hom while he was in-the hospital in Salt Lake ·City. David Hutchinson testified that Hom 

remembered performing a pre-shift examination but he could p.ot remember whether he set the 

parking brake when he got-out of the Jeep at the air door.· (Tr. 262-63). : 

Ken Lacey, who is also a belt electrician, was called by FMC to testify. He testified that 

he worked the swing.shift immediately prior to· Mr. Hom's.shift: He washed:the Jeep, changed· a 

headlight; and checked .underneath the Jeep;· (Tr.· 82). He .said that everything looked good. -. · ·. · · 

(Exs. R-2 & R-3). ·He .testified that he checked the brakes during his pre-shift examinatjo~ but · 

he did· not look ·at the braking ·system when he crawled underneath the Jeep~ {Tr.· 85). The only 

way to see if the brakes:are "plugged·up" is to:take:offthe·wheels, Id .. Lacey did.not find any · · 

other problems with the Jeep and it operated well throughout his shift. (Tr. 90). If he had found 

safety defects on· the Jeep, ·he would have used another Jeep-. Lacey has had· problems with the 

transmission popping· out of gear from park to reverse on that Jeep. : (Tr .. 95.-98,.102-06}; Lacey 

testified,that he always turns· off the engine when.he gets· off the Jeep, even.when he isjust· 

opening an air door; .(Tr. 103, '106). 

David Hutchinson is the mine's safety.coordinator. · (Tr. 246). He.oversaw FMC's· 

investigation ofthe·accident. The Jeep was first.examined where Horn ha:cl.left it. .(Tr:.251). 

When the parking brakes were tested, they would not hold the vehicle. Id. · Wherrthe service 

brakes were tested, they stopped the vehicle. The ·neutral switch was-observed· out of.position. 

The Jeep was taken to the shop for further examination. The other problems«liscussed above; 

including the missing motor and.transmission mounts and the defective·rear brake calipers were· 

discovered.in the shop. 

FMC determined that there were several "immediate" causes of the accident: failure to 

follow procedures and defective equipment. ·(Tr. 264;: Ex. R-6) ... FMC ·believes that Mr. Hom 

should have turned off the engine and kept the chocks ·around the wheel until he was ready to 

drive off. It also concluded that it was not certain whether Hom set the .parking. brake. (Tr. 262-

23). In addition, the transmission mount and motor mounts were missing. 

Michael Burd was on the safety committee ef.the union at the: time of the ·accident. He 

was also on FMC' s accident ·investigation team .. His testimony is consistent with the testimony 

of David Hutchinson, set forth above. (Tr. 281-89) .. Garth Mitchell is the maintenance 

28FMSHRC56 
coordinator at the mine. (Tr. 290). He was on the accident investigation team. As stated above, 

on the morning of September 27, it was determined that the parking brak~ was not working and 

the neutral safety switch was out of position. (Tr. 291 ). On September 28, the Jeep was. 

examined in the shop to find everything that was wrong with it. (Tr. 293). The cable for the 

parking brake was working, but the rear brakes were caked with;muck and the brak~ ~alipers 

were not working. (Tr. 295). Jn addition, a motor mount and transmission mount had broken 

loose and the crossover bracket that.holdS. the.transmission in .place was broken.'. (Tr:·.296). The 

Jeep·was repaired:and overhauled:before it was put back.into·serviqe. MitchelHestifi~ that this 

Jeep is the most .used vehicle. in the mine. (Tr. 297) . . Mitchell testified that it is im,pos.sible to· 

determine when the parking brake stopped working. 

Daniel Haanpaa is a .mechanic .in the diesel. shop at. the mine. He is also on the union 

executive committee. He testified that whenever a vehicle had. problems at the mine, its .operator 

should bring it in for repairs. (Tr. 307). The 25-UM Jeep broke down ''pretty often'~ because of 

its heavy. use, but there were no safety complaints. (Tr. 308). He participated in the conference 

call with Mark Hom.when Hom.was in the hospital·. Hom could.not remember whether he set 

the parking,brake. (Tr. 3.09; 311 ). If Hom• had .shut off .the engine, the aceident would not have . 

occurred. 

.'. 

An underlying dispute in this:case is. whether FMC was required to immediately advise 

MSHA that there had been a life.;threatening accident under the provisions of30 .. C~ . Part SO. 

FMC·believed that it.was not-required to immediately ·report the accident because Hom's injuries 

were not life-:-threatening. (Tr. 248). The Secretary contends that-the injuries ·caused b.y the ' . 

accident were life. threatening and that FMC was obligate<i:to immediately advise MSHA of._that. 

fact. ·At about.7:00 a.m. on September 27, FMC notified MSHA's.office in GreenRh er that.an . 

accident had occurred; b:ut FMC did.not indicate that the accident resulted in alif threatening 

injury. {Tr. 248-49, 321-26). MSHA did.not-start its investigation of the accident:until 

September 30, 2004. Because this issue is not before me, I have not attemp.ted to resolve it in. 

this decision. 

. IL DISCUSSION WITH FURTBER .. F1NDINGS 

AND.CONCLUSIONS· OF. LAW 

. The Secretary contends that she established the violation: set forth in each citation.as 

written. FMC argues that the cited safety.standards.are performance-based standards. It 

contends that there is no dispute that-the company.has a very good ·safetyprogram which·requires 

equipment operators to perform thorough pre-shift .examinations. The examination performed on 

the previous shift· and the examination performed by Mr. Hom did not indicate that the brakes 

were not working or that there were any other problems with the Jeep; The parking brake·cowd 

have failed between the beginning of the shift and the accident. The company has an excellent · 

preventive maintenance record, but it cannot be expected to guarantee that nothing will break 

down during the shift after the equipment. operator performs his pre-shift examination. Mr. Hom 

was interviewed twice, once by Inspector Barrington while he. was in intensive tare, and once 

28 FMSHRC: 57 
during a conference call with MSHA,.company management, and union officials. 'Both times; 

Hom could' not be sure that he engaged·the.parking.brake. It is the responsibility of.mobile · = 

equipment operators to report any safety·problems on their equipment. 

Al Citation No. 6302200 

I find that the Secretary established a violation·of 57.14101(a)(2). ·The parking· brakes on 

the·cited Jeep.were not working at:the time they were inspeeted·by FMC following" the accident. 

The Jeep was tagged out by FMC s investigation.team after the accident and was not,used until 

after it was refurbished by the maintenance department. Substantial evidence .presented at the 

hearing establishes this violation and FMC stipulated that, "as a result of the September 28, 

2004, examination, FMC mechanics.determined that the park brake·on the Jeep·(No. 25UM) did 

not work.or otherwise·function." (Joint'Stips.1jl5). · 

· . FMC maintains that the Secretary did. not establish when the parking brakes became 

defeetive. It argues that·Mr. Hom and Mr; Laceyperfonned pre-sbiftiexaminations·and .. · 

determined that the· braking systems on the· Jeep were functioning. I find· that; given the ·sequence 

of events, the preponderance of the evidence established that the parking brakes did not work'at · 

the time of Hom's accident. The defective parking brake was immediately discovered by FMC 

mechanics; Gene Hutchinson, ·a ·diesel meehanic at·the mine, testified that the=ealiper that 

activates the parking ·brake and the .rear service brake was corroded. (Tr. 149).-.. He·stated that · · · 

wet trona gets into the braking system·and .corrodes·the moving parts=ofthe=brakes so that-these 

parts can no· longer move or function; .(Tr.: 150):· I find. that this·corrosion cannet h'3p'pen during 

a single shift and that it is·more likely than not that the· parking brake·did not'meet the. .. ". . . . . 

requirements of the.safety.standard prior to the·begirinirigo£Hom"s shift. The standard re<tuires·: 

that the parking biake· be "capable.of holdfug the equipment with itS typical .load· on the· · 

maximum'grade it.travels." The evidence establishes that the parking·brakewas not capable of 

holding the,vehicle on .any. grade. 

FMC also argues that Hom told MSHA investigators that he may not have set the parking 

brake when he stopped ·the Jeep and· that hemay;have damagetHhe' parking brakes earlier in the 

shift by driving with the parking brake·:engaged. Even if.I-credit this evidence, it does not 

contradict my finding that the parking brakes were defective at the time of the accident. In 

addition, I take·notice of the factthat .. when semeone has: been severely injured in an accident, he 

experiences a wide range ofemotions following the.accident, iri.cluding feelings of guilt and selfdoubt. Hom was in the ICU when he. was ,interviewed by MSHA Inspector. 'Barrington and he 

was still in the hospital: during the subsequent conference· calL At the hearing, Hom testified that 

it was his normal·practice to set the parking brake and that he had done .so that night It is 

unlikely that he would .remember to put chocks under the wheels, but forget to set the parking 

brake. · . .. · ·· · 

I·also find that the violation was serious and S&S. A violation is classified as S&S "if 

based upon· the facts surrounding the ·Violation, there exists a reasonable likelihood-that the · 

28 FMSHRC'58 
hazard contributed to will result in an injury or illness of a reasonably seri~u~ nature." National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 

(January 1984), the.Commission-set out a foun-part test for analyzing S&S issues. Evaluation of 

the criteria is. made assuming· "continued .normal mining operations.:' U. S. Steel -Mining Co . ., 6 

FMSHRC 1573; 157;4-(July-1984) .. The qμestion of whether a particuJar violation is. S&S\lllusf 

be based on.the-particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 

(April.1988). The.Secretary must establish: (1) the underlying violation of the. safety standard; 

(2} a discrete-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 re.asonable 

likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not 

required to show that it is more probable than not that an injury will result from the violation. 

U.S. Steel Mining.Co.., 18 FMSHRC 862,.865·(June 1996). 

The Secretary established all four elements:of.the Mathies test. · Mr. Hom was seriously 

injured as a result of this violation. Although the accident would not have occurred if the 

transmission system were worki:Iig properly or if Mr, Hom had shut off. the.engine, the injurie5 

sustained by Hom were directly related to this violation. The violation is clearly S&S. : . . .. 

FMC argues that it was not negligent with.respect to this. :violation .. It.maintains that the · 

company reasonably relies on its maintenance program and the equipment operators' pre-shift 

examinations to keep mobile equipnientoperating,safety. FMC -argues that.MSHA!s safety 

standards with respect:to·mobile equipment are perfonnance .. oriented regulations.with·the·result 

that it should not be.held.negligenl:unless safety.defects.reported.by equipment-.operators are not: 

promptly,repaired. ·, · 

I .findthatthe preponderance of the evidence establishes: that FMC's negligence with· 

respect to-this violation .was. "high.',. The Jeep involved in the accident was in.appalling · 

condition, as described. above. ·It is undisputed that this Jeep is used.more than any .other vehicle 

at the mine. The transmission was not fully secured to the Jeep with the result that the vehicle 

popped o:ut of park into revex:se. Tiris condition.had: been-reported in the past, Indeed, the 

crossover bra~ket that holds.the-transmission in place .was broken . .. One of the engine.mounts · 

was missing. The Jeep could be -started in-any gear. The.rear service brakes as w.ell as the 

parking brake did not function. Hom testified.that·the Jeep was often in poor operating 

condition. He stated that often when he-engaged the parking brake, he could·not feel it·ratchet 

down. Given the extensive wear and tear to which thisJ:eep was subjected, :it'was incumbent on · 

FMC to closely monitor the condition of the Jeep and keep it in safe operating condition. As 

stated above, I find that the parking brakes did not suddenly become defective during.Hom's 

shift and that FMC failed to ensure that its maintenance program kept the parking brake in good 

operating condition. This violation was a eontributing.factor in Mr. Hom s accident . . A penalty 

of$6,00Q.OO is appropriate for,this violation. 

28FMSHRC 59 
B. Citation No. 6302201 

·I find that the Secretary established a violation of 57.l410l(a)(3). ·The· rear service-brakes 

on· the cited Jeep were not working at the time they were inspected by FMC following the 

accident.-· The Jeep was tagged:ourby FMC's investigation team.· Substcintiarevidence.presented 

at the·heariitg establishes this violation and FMC stipulated that, "as a:result'Ofthe:September 28, 

2004; examination, FMC mechanics· determined that the rear service·brakes orr .the Jeep {No: : 

25UM):did not·work or otherwise function." (Joint Stips. 41116); The safety· standard requires that 

all braking systems must be "maintained in a functional condition." .. . ; . •. • 

· · FMC maintains· that the Secretary did not establish that the rear service brakes were not 

working at the start of Hom's shift. It also contends that this alleged violation: is ·Unrelated to the 

accident. The Secretary is not contending that this violation caused the accident or was related to 

Hom~s injuries. l find .that a preponderance of the evidence establishes that the rear.ser\rice 

brakes were not working before:the start ofHom s shift .. 'The corroded:calipers that caused the··· 

parking brakes to cease functioning.also caused the rear service brakes to· fail. ·The parking· brake 

cable actuates·the same brake·pads as the rearservice·brakes:. The. calipers must·be furictioning · .. 

for either braking system to work. As I stated with respect to the parking brake violation, the 

brake calipers did not become plugged:up and corroded ·durjng· a ·single shift. · · · .. , . 

I also find that the violation·was serious. and S&S: ·With only the front service· brakes 

functioning~ it is reasonably.likely that the. hazard contributed to by ·the· violation will result in ·an 

injury .of a reasonably serious nature. ,If the operator of the· Jeep were operating-in a congested· · 

area, he might not be able to stop quickly enough to avoid a pedestrian. The Jeep· was subjected. 

to wet, muddy conditions that are likely to compromise the effectiveness of the front service 

brakes. As stated· above, wet trona tends. to corrode working parts' of:the Jeep. :Tue; fact that this 

Jeep was not well maintained makes it likely-that, given continued mining operations; the front 

service brakes would have started to fail ·before the condition·was corrected. : . 

For the reasons set forth with respect to· Citation No. 6302200; I find that the evidence .. ·· 

establishes.that FMC's negligence was high .. The braking systems.-on this.Jeepwere in:poor , 

condition. As stated above, I find that the rear-service brakes did not-suddenly beCome defective 

during Hom's shift and that FMC .failed. to ensure that its· maintenance program kept the brakes 

in good operating condition. This violation was not a contributing factor in Mr. Horn's accident. 

A penalty of$350.00 is appropriate forthis violation. 

C. Citation No. 6302202 

I find that.the Secretary established;a ·violation of 57 .. 14100(b). The ileutral·safety switch 

on the cited Jeep was not working at the time the Jeep was.inspected .by FMC fol1owing· the 

accident. The Jeep was tagged out by FMC's investigation team. Substantial evidence presented 

at the hearing establishes this violation and FMC stipulated that, "as a result of the September 28, 

2004, incident investigation and examination by FMC's investigation team it was determined 

28FMSHRC60 
that a mechanism that prevented the:Jeep (No. 25UM) from starting when the automatic 

transmission· was· engaged in a forward or reverse gear did not work or otherwise function." 

(Joint Stips. 1[ 17). 

The safety standard provides that safety defects on equipment shall be corrected in a 

timely manner to prevent the creation of a hazard; FMC contends that because this defect had 

never been reported by any of the operators of the Jeep, FMC did not have the opportunity to 

correct the defect in a timely manner. David Hutchinson testified that the defective.condition of 

the neutral safety switch was observed upon opening the hood at the location.where Hom left the 

Jeep. (Tr. 251). Garth Mitchell observed the condition as well. (Tr. 291). The defect was 

neither difficult to find nor was it hidden or latent. The Commission has held that "[ w ]hether the 

operator failed to correct [a] defect in a timely manner depends entirely on when the defect 

occurred and when the operator knew or should have known of its existence." Lopke Quarries, 

Inc., 23 FMSHRC 705, 715 (July 2001). It is not entirely clear when the defect occurred. Gene 

Hutchinson testified that the switch was in a ''bent-over position." (Tr. 154). I find. that the 

preponderance of the evidence establishes that this•.condition had existed for more:than one shift. 

It is highly unlikely that the· switch suddenly:became defective on Mr. Hom's shift. · Although it 

is clear that FMC did not know that the neutral safety switch was defective, I find· that.it should 

have· known that it was defective. As stated above,"the FMC investigation team easily discovered 

the defect during their initial examination of the Jeep. 

I also find that the violation was serious and S&S. I credit the testimony of Inspector 

Coats that it was-reasonably likely that a miner would start the Jeep in a congested area and strike 

a pedestrian. Because this Jeep could pop out of park, the operator of the Jeep might not know 

that it was actually in reverse when he started the engine. As a consequence, the Jeep could lurch 

backward and strike someone. The fact that onl)' the front service brakes were working increased 

the danger. Because this Jeep was not well maintained, it was more likely that a serious accident 

would.occur.as a result ofthis·violation, assuming continued mining.operations. 

I find that the evidence establishes that FMC' S· negligence was moderate, as· alleged by 

the Secretary . . FMC should have detected this violation as part of its preventive maintenance 

program. This violation was not a contributing factor in Mr. Hom's accident. A penalty of 

$300.00 is appropriate.2 

III. APPROPRIATE CIVIL ·PENALTIES 

Section l lO(i) of the Mine Act sets forth six criteria to be considered in determining 

appropriate civil penalties. The record shows that the mine has a history 167 paid violations in 

the 24 months preceding the inspection and that all but 14 of these violations were non-S&S. In 

2004, the mine worked about 1,562,568 total man-hours making it a relatively large mine. All of 

2 FMC also contested three other citations in WEST 2005-178-M. By order dated August 

26, 2005, I approved the parties' settlement of those citations. 

28FMSHRC61 
the violations at issue in these cases were abate(i jn good faith. 1Jie penalties assessed in this 

decision will not have an adverse effect on FMC's ability to continue-in bus_iness. My gravity 

and negligence findings are set forth above. Based on the penalty criteria, I find that the penalties 

set forth below are appropriate. 

.·· . 

. IV. ORDER 

Based on the criteria in section llO(i) of the Mine Act, 30 U.S.C . . § 820(i), I.assess· the 

following civil penalties: 

·Citation.No. . 

WEST 2005-178-M 

6302201 . 

6302202 

7914705 

. . 7914706 

7914707 

WEST 2005-217-M 

6302200 

. 30.C.F;R.,§ 

. 57.14101(a)(3) 

. 57.14100(b) 

62.130(a) 

62.130(a} 

62.130(a) 

57.1410.l(a)(2) . · 

Penalty 

-$350;00 

:300.00 

Previously Settled & Paid 

.. .PreviouslySettled & Paid . 

Previously ,Settled& Paid 

; ; ; ' ·· · {. I 

. '. 6,000.00. . . .. . 

·. -: . ·; 

. :. ·: • S; ·. • 

TOTAL·PENALTY $6,650.00 

For the reasons set forth above, the. three citations are-AFFIRMED as modified.in this 

decision. FMC Corporation is ORDERED TO PAY the Secretary of Labor the sum of 

$6,650.00 within 30 days of the date of this decision~ 

Richard W. Manning 

: · Administrative Law Judge;· 

28FMSHRC62 
Distribution: 

John Rainwater, Esq., Office of the Solicitor, {)'.S. Department of Labor, P.O. Box 46550, 

Denver, CO 80201-6550 (Certified Mail) 

David L. Thomas,..Safety TeamLeader, FMC Corporation, P .0. Box 872~ Green ~ver, WY · 

82935-0872 (Certified Mail) · . · . . 

RWM 

. -: 

28FMSHRC63 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

XAVIER F. GONZALEZ, 

Complainant 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

February 8, 2006 ·. 

DISCRIMINATION PROCEEDING · · 

Docket No. WEST 2005-288-DM 

RMMD05-05 

RINK.ER MATERIALS CORPORATION, 

Respondent 

Rinker Green Valley 

Mine ID: 02-02643 

DECISION 

AND 

ORDER PARTIALLY SEALING RECORD 

Appearances: Steven G. Sandoval, Esq., Law Offices of Steven G. Sandoval, P.C.,177 N. 

Church Avenue, Suite 1008, Tucson, Arizona 85701, for Petitioner 

Katherine Shand Larkin, Esq., Jackson Kelly, PLLC, 1099 18TM Street, 

Suite 2150, Denver, Colorado 80202, for Respondent 

Before: Judge Bulluck 

This case concerns a discrimination complaint filed pursuant to Section105(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(3). Xavier Gonzalez alleges 

that he was unlawfully terminated from employment by Rinker Materials on December 9, 2004, 

due to a work-related injury that he incurred on December 8, 2004. He seeks reinstatement with 

back pay, damages for emotional distress and attorney's fees. 

A hearing on the merits was convened on November 29, 2005, in Tucson, Arizona, 

during the course of which the parties engaged in discussions and negotiated a settlement. Under 

the essential tenns of the agreement, Rinker Materials is required to make a lump-sum payment 

to Gonzalez in consideration of Gonzalez's withdrawal of his discrimination complaint, with 

prejudice, and release of Rinker Materials from all other related claims and causes of action. I 

tentatively approved the settlement on the record pending filing of the written, executed 

agreement. 

28.FMSHRC 64 
ORDER 

The settlement is appropriate and is in the public interest. WHEREFORE, the approval 

of settlement is GRANTED, and it is ORDERED that the record is PARTIALLY SEALED, 

i.e., the hearing transcript of November 29, 2005, Settlement and Mutual Release Agreement, 

executed ori January 6, 2006, and Withdrawal of Claim, dated January 6, 2006, and this case is 

DISMISSED WITH PREJUDICE. . . 

Distribution: 

• 

11!: 1 

--;. 

/

ueline 

. ~A~ R. Bulluck · 

· A · nistrative Law Judge 

(202) 434-9987 

. j 

. . . 

Steven G. Sandoval, Esq~, Law Offices of Steven G: Sandoval, P.c::;·111 N: ChurchAvemie, · · 

Suite 1008, Tucson, AZ, 85701 .; · · · · ·· · · 

Katherine S. Larkins, Esq., Jackson Kelly; PLLC, 1099 18th Street, Suite 2150, Denver, CO 

80202 . . ... 

/ej 

"'· 

28FMSHRC6S 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

·. ·. 

SECRETARY OF LABOR, . 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA), 

Petitioner 

v. 

WEIRICH BROTHERS INC., 

Resp~ndent · 

Washi.ngtol'\, O.C. 20001 

February 24, 2006 . . 

.· 

... .. ,; . . . ' 

CIVIL PENALTY PROCEEDIN(}S 

Docket No~ coo 20'05~24-M A. C. No. 41-02363-40451 

Docket No. CENT 2005-88-M 

A. C. No. 41-02363-45908 

Davis Pit ·. 

DECISION 

Appearances: Carlton C. Jackso.I), Esq.,,. Office of ~he SolicitoriP-~ .. Dep3:I:fm~t o(La,bor, 

Dallas, Texas, on behalf of the Secretar)r of Labor; , . . ... . : . 

Teny Weirich, Johnson City, Texas, on behalf ofWemch Borthers, fucorporated. 

Before: Judge Zieliiiski ! \ : • • , . • • ' • . 

These cases are before me on Petitions for Assessment of Civil Penalties filed by the . 

Secretary of Labor ("Secretary"), pursuant to section 105 of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815 ("Act"). The petitions allege that Weirich Brothers fucorporated 

("Weirich Brothers") is liable for ten violations of the Secretary's regulations applicable to 

surface, metal and non-metal mines, and proposes the imposition of civil penalties totaling 

$12,331.00. A hearing was held in San Antonio, Texas. At the commencement of the hearing 

the parties announced that Respondent had agreed to withdraw its contest and request for hearing 

with respect to six of the alleged violations, and had further agreed to pay the civil penalties 

proposed for those violations. 

1 The hearing proceeded on the four remaining violations. The 

Secretary filed a brief after receipt of the transcript. Respondent elected not to file a brief. For 

the reasons set forth below, I find that Respondent committed three of the alleged violations and 

impose civil penalties totaling $635.00 for those violations. 

1 Respondent withdrew its contest and request for hearing with respect to Citation 

Nos. 6233498, 6233501, 6233502, 6233503, 6233504, and 6233506. A civil penaltyof$60.00 

was proposed for each of those violations pursuant to 30 C.F.R. § 100.4. 

Z8FMSHRC66 
Findin&s of Fact --Conclusions of Law 

Weirich Brothers is located in Johnson City, Texas. One of its facilities, the Davis Pit, 

located in Junction, Texas, is a surface mine that extracts material from natural deposits by use of 

a dragline; and -processes it through crushers and scr.eens to produce finished product that is sold 

to customers. The Davis Pit ha.S been in operation for many years, and has.been in its· present 

configuration since 1986. On July 7, 2004, Jerry Anguiano, an Inspector with the Department of 

Labor's Mine Safety and Health· Administration (''MSHA"), conducted an inspection of the · 

Davis Pit. He arrived at approximately 8:00 a.m.f while the plant.was being put.through a startup. procedure, and remained there for most of the day .. In the course of the.inspection, .he:issued 

ten.citations.charging violations of the Secretary's regulations establishing.safety and.health 

standards for surface metal and non-metal mines, 30 C.F.R. Part 56. Civil·penalties were 

assessed for the violations, and Weirich Brothers contested the penalties and requested a hearing 

before the Commission. --

The citations that Weirich·Brothers·continues to contest·are discussed below, in the order 

that they were presented.at the hearing. 

; ~ . 

Citation No. 6233497 . -. ; 

Citation·No. 6233497 alleged.a violation of30 C.F.R. .§ .56.15002,.which'provides: ~'All ·: 

persons shall wear: suitable hard hats when in or ·around ·a mine er plant where falling objects, may 

create hazard.'~ Anguiano described the violation in.the·uCondition or: Practice" section.ofthe 

citation as follows: 

The supervisor and an employee were not wearing hard hats. The supervisor, 

. Ronny Barclay, was .washing under the roll crusher conveyor while. emplOyee 

Jaime Dominquez was.loading the red truck-at the load out station. The system 

had a load of material. Rocks were bouncing off the roll screen - a rock could 

strike ·an employee· on the head resulting -in lost work days. 

Ex.P-1. 

Anguiano determined that it was reasonably-likely that the violation would result-in an 

injury resulting in· lost work days or restricted· duty, that .the violation· was significant and . 

substantial, that one· employee was affected and that the ·operator's negligence was·mederate. 

A civil penalty in the amount of $247 .00 has been proposed for this violation. · 

The Violation 

Anguinao observed this· alleged violation as he arrived on· the property~ Ronny.Barelay,. 

supervisor of the pit eperation, was in the vicinity of a roll screen, using· a hose tO wash material 

from the tail pulley of the conveyor leading from the screen. The plant ·had just been started 'up. 

28 FMSHRC 67. 
There was a small amount of material l~ft over fr.om.the previous day moving through the 

system. Tr. 99. Barclay, who was not wearing a hard hat, is depicted in a photograph taken by 

Anguiano when he observed the alleged viOlation. Ex .. P-1. 

Small rocks, 1.25.-1 .5 inches maximum dimension, were bouncing off the roll screen, 

which was located five feet above ground level and seven to ten feet to Barclay's1eft. ·Tr. 20, 

100. Although no rocks bounced far enough. to strike Barclay while Anguiano. observed him, . 

he believed that it was possible that a rock could bounce· far enough to strike ~arclay s head, 

resulting in'an injury that·would cause lost work days. Tr. 20-21, 39 .. ·.He also· felt.that Barclay 

might move closer to the· screen, where it would .. be more likely that:.be .could be. struck .. Tr. 22, . 

33-34. There· were a:number ofrocks on the.ground near Barclay, ·and: Anguiano assumed-that- · 

they had bounced off the .. screen. · .. 

Barclay testified that, while rocks do bounce off the screen, there was virtually.no 

possibility that they would bounce far enough to strike him. Tr. 100, 103. He had had a 

discussion with another MSHA inspector, who ·explained that:the .standard required the use of 

hard hats only where falling objects may create a hazard. Tr. 103~ Based upon that-discussion, . 

it was his understanding that hard hats did not need to be worn in the area where he was located, 

because there was no hazard presented by falling objects. He told Anguiano about.the prior 

discussion and explained why he wasn't wearing his hard hat at the time. Tr. 17, 42. Weirich 

Brothers· issued hardhats to:employees, and Barclay's was in·clase proximity. Tr.:44, 104, 108. 

He testified that he and :the ·0ther employees always wore theirr hard-hats when they·worked. close 

to.the roll screen;.or·in other•areas.of.the-plant where there was a·chance·ofbeing struck by a · 

falling object. Tr. 106-07. Following Anguiano's inspection, the employees began to wear.hard 

hats whenever they were working in the plant. 

In an enforcement proceeding under the Act,. the Secretary has the burden .ot:proYing all 

elements of an alleged violation by a preponderance of the evidence. In re: Contests of. 

Respirable Dust Sample Alteration Citations, 17.FMSHRC 1819, 1838 (Nov . .1995),·afFd, Sec'y 

of Labor v. Keystone Coal Mining Corp., 151 F.3d ;1-096 (D.C. Cir. 1998); ASARCO Mining Co., 

15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152 

(Nov. 1989); Jim Walter Resources, Inc. , 9 FMSHRC 903, 907(May1987). 

Based.upon Anguiano's testimony, I find -that therewas· a.possibility, albeit small; that 

Barclay might have been struck on the head by one .. of the· small .rocks. Consequently; his failure 

to wear a hard hat, in an.area.where "falling objects:may create a hazard/' was .a-violation ofthe 

regulation. There is also a good chance that·his duties would have taken.him closer to the· screen; 

and that he would not have interrupted his work to retrieve and don his hard hat. 

Respondent has argued that, because of the previous MSHA inspector's advice, the 

Secretary has taken inconsistent positions with·respectto the requirement of.hard hats:in-the area 

in question, and that it.did not have fair notice of the Secretary's interpretation· of the.regulation: 

When "a violation of a regulation subjects private parties to criminal· or civil· sanctions; a · · 

28FMSHRC68 
regulation cannot be construed to mean what an agency intended but did not adequately express." 

Phelps Dodge Corp. v. FMSHRC, 681 F.2d. l 189, 1193 (9th Cir. 1982), quoting Diamond 

Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). To detennine whether an operator 

received fair notice of the agency's interpretation, the Commission applies an objective, 

''reasonably prudent person" test, i.e., "whether a reasonably prudent person familiar with the 

mining industry and the protective purposes of the-standard.would have recognized· the specific 

prohibition or requirement of the standard." Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 

1990); BHP Minerals Jnt 'l Inc., 18 FMSHRC 1342, 1345 (Aug. 1996). In applying this standard, 

a wide variety of factors.are considered, including the-text of the regulation, its placement in the 

overall regulatory scheme, its regulatory history, the consistency of .the agency's .enforcement, 

whether MSHA.has published notices informing the regulated community with "ascertainable 

certainty" of its interpretation of the standard in question, and whether the practice at issue 

affected safety. See Island Creek Coal Co., 20.FMSHRC 14, 24-25 (Jan. 1998);.Jdea/;Cement 

Co.,, 12 FMSHRC at 2416. --

I reject Respondent's fair notice defense·as·to=this violation. A reasonably prudent person 

familiar with the mining industry and the protective purposes of the standard would have 

recognized that the standard required the wearing of hard hats in the area in question .. Moreover, 

there is no evidence that the Secretary has actually taken inconsistent positions with respect to .· . 

this particular: application of the standard. -Barclay testified that the preVious iBsp~tor did not -

specifically identify the subject area·-as a,place.where,hard hats were not-required. Tr: .109.· It-·· 

was only his '-'understanding!~ of the discussion that led him to:conclude that it was not ·necessary 

to wear a hard hat on the day in question., Tr.-42, 109.. · ·. ; 

Significant and Substantial . ' . -· 

A significant and substantial {f'S&S") violation is ·described in ·section: 104( d)(l) .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 "it: 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 Div., Nat'/ Gypsum-Co;, 3 -FMSHRC 822, 825 (Apr. i981). 

The Commission has explained that: -

In order to establish, that a violation c;>fa.mandatory safety standard.is 

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

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

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

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

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

reasonably serious nature. 

28FMSHRC69 
Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted);· see also; Buck Creek Coal., . 

Inc. v. MSHA, 52 F.3d 1.33, 135 (7th Cir. 1999); Austin' Power, Inc. v. ·secretary, 861F.2d99, 

103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 ·FMSHRC2015, 2021(Dec.1987) (approving 

Mathies criteria). · 

. In U.S. Steel Mining Co., Inc., 7-FMSHRC 1125; 1129 (Aug. ·1985), the Commission . 

provided· additional gliidance: · · · 

We have explained.further that the third ·element-of the MathiesJomiula "requires· 

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

will result in· an event in which there is· an injury." U.S. Steel Mining Co., Inc., 

6 .FMSHRC 1834, 1836(August1984): .Wehaveemphasized·that, in accordance 

with the language of section 104(d)(l);it is the contribution ofa violation to'. the .. 

cause and effect of a hazard that must be significant and substantiaL U.S. Steel" · . 

Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., 

lnc., 6FMSHRC1573, 1574-75 {July-1984).. . 

·This evaluation is made in consideration :of the length oftime that the violative condi~on 

existed prior to·the·citation and the time it would:have existed if nonnahnining operations had .. 

continued. Elk Run Coal Co., 27 FMSHRC 899; 905 (D.ec~ .2005); U.-S. SteefMining Co.,,/ne.:, · 

6 FMSHRC at 157 4. 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 {Apr. 1988); Youghiogheny & Ohio Coal Co:, ·9 FMSHRC 2007 (Dec:: 1987). · · 

The fact of the violation has been established. The focus of the S&S-analysis for this· 

violation is the likelihood that the hazard would result in an injury, and the likelihood that any 

injury would be serious. I find'.that the Secretary has failed to carry·het.burden as to beth issues. 

The rocks in .question were relativ.elysman ·and were ·not traveling at any; significant 

velocity .. They were being.shaken·or bounced off a roll:screen that was: roughly ,the same height ·. 

as Barclay. While some of thein ·traveled· a·few .feet-from the. screen,,generally:by;sliding down 

parts of the equipment, Anguiano did not observe, any rocks· travel to" where Barclay was located. 

Tr. 33. While it is possible that Barclay would have moved to a position where there was an 

greater possibility that a rock might have struck his head, I accept. his ·testimony that he would 

have donned his close-by hard hat before working in such an area. Under the circumstances, it 

was not reasonably likely that Barclay's failure to wear a hard hat would·result in an injury, and it 

was not reasonably likely that any injury would"be ·serious . . The violation was .not S&S . 

I also find that the operator1s negligence with respect.to this violation was:low; In light of 

the conditions.that existed, Barclay~s interpretation of the.discussion he had·.had·with'the· 

previous MSHA inspector, while erroneous; was not unreasonable:·. . . . : ,~. · · 

Citation No. 6233500 

28 FMSHRC. 70 
Citation No. 6233500 alleg~ a vi~lation of 30 C.F:R. § 56.14107(a), which provides: 

Moving machine parts shall be guarded to protect persons from contacting gears, 

sprockets, chains, drive, head, tail, and takeup pulleys, flywheels; couplings, 

shafts, fan blades, and similar moving parts that can cause injury. 

The violation was described in the -' Condition or Practice'' section of the Citation as 

follow·s: ··, 

The provided guard that protects the tire coupling and shafhvas not in place; The 

length of the coupling, motor and gearbox shaft combined measured 12 inches 

long. The guard was removed by an employee when he performed welding on the 

roll crusher. The tire coupling was rolled by hand to rotate the roll' crusher. The · · · 

roll crusher is operated by a 15 HP electric motor. Three employees work in"'1be 

area maintaining the operation'C>f the plant. An employee ·could become entangled 

by the rotating shaft resulting in a permanent disabling-iiljucy. · · '· · · · . .. '• . 

Ex. P..:4. . . : ~ . 

Aguiano determined that it was reasonably likely that the violation would result in a 

permanently 'disabling injury, that the violatfon was ·S&S, thatone employee was affeeted and 

that the operatOr's negligence.was moderate. A civil penalty iii the amount of $324.00 has' been 

proposed for :this violation.· · · · · · · .. · , .... . ... : .. 

The Violation . . . · · .. 

fu construing an· analogous standard2.-in Thompson Bros; Coal Co.~ 6'FMSHRC 2094, 

2097 (Sept. 19-84), the Commission stated: 

We find that ihe most logical construction of the standard is that it imports the 

concepts of reasonable possibility of contact and injury, including contact'. stemming from inadvertent stumbling or falling, momentary inattention, or 

ordinciry·human·carelessness. In related·contexis, we have emphasized that the 

constructions· of mandatory safety standards involving miners' ·behaviOr cannot 

ignore the vagaries of human conduct. See, e.g., Great Western Electric, . 

5 FMSHRC 840; 842 (May 1983); Lone Star Industries, 1nc., 3 FMSHRC 2526, 

2531 (November 1981). Applying this test requires taking into considerati0n all · 

2 ·. 30 C..F.R. § 77.400 . . . 

(a) Gears; sprockets; ·chains; drive~ head tail aiid·takeup 'pulleys; flywheels;· ' 

' · ·couplings; shafts;: 5awblades; fan illlets; and similar exposed moving machine · · 

parts which·may be contacted by persons, arid which may cause injury to person5 

· shall be gl:tarded. · 

28FMSHRC71 

;. .. 
relevant. expo~ure and injury variables; e.g., accessibility.of the machin~ parts, 

work areas, ingress and egress, work duties, and as noted, the vagaries of human 

conduct. . Under this approach, citations for inadequate guar~ing will .be resolved 

on a case-by-[case] basis. . .. 

The guard in question ruUi been removed the prior evenillg to facilitate welding on the 

crusher, and.had i;iot be~ replaced .. Anguiano, took a·pJ:iotograph ofthe.concijtion,. which·shows 

that the guard had been temporarily placed on top of the motor. Ex. P-4. Respondent does .not 

dispute that the guard should have been replaced prior to the starting of the plant on the morning 

of the inspection. Operation of the plant without the. guard haying been replaced violated the 

standard. 

Significant and Substantial 

Respondent does not djsp.ute tliat ~e violation contribμted to a hazi:ird, e., a.rapidly · 

rotating shaft and coupling that ~ould entangle a miner coming into contaet witP. it .. lt is also 

clear that any injury suffered as a result of such entanglement would be Serious. Tr. 55. 

Respondent contends that the violation was not S&S because it was not reasonably likely that the 

hazard would result in an injury. I agree. 

. T,h~~ were three empl~yees .that worked aro~d the plant, operating ~uipn;>,~t, d~ing 

general cle~g and monitoring.the pl~t's operation. :None of them \Vere iri, th.e ~ediat~ . 

vicinity of the unguarded coupling when Anguiano observed it. Tr. 52-53. :Barplay h~ ~ot .. 

noticed that the guard had not been replaced. However, he testified that he ·was about to do his 

daily inspection after starting the plant, and would have noticed the missing guard and .repl39ed . . 

it. Tr. 112. Teny Weirich, Respondent's president, also testified that the failure to replace the 

guard was an oversight and that Barc~ay would have.noticed it and repla~edit shortly after the 

plant had been started. Tr. 134. Weirich also believed that Qie ~elihood of aminer b~conring 

entangled as a result of the missing guard was remote, because the shaft and coupling were 

located at "about chest height" such. that one would ''have to make; a deliberat~ effort ' to come 

into contact with. the rotating machine_ry. Tr. 133-:35. . · · · · · · 

Weirich's testimony about the height of the.hazard was.not contradicted, and ~ears to 

be reasonably accurate.judging from.the photographs taken by Angw~o. Ex. PA . . Those photos 

also depict substantial framing members that inhibit access to ~e hazard and would reduce the 

risk of a pers9n accidentally encountering it. Anguiano testified that he considered. an injUry 

reasonably likely because the condition was ''within r~ach" 'and cleanfug was requjred,in the area. 

Tr. 55. However, the area depicted in the photographs does not appear to be one that would 

require cleaning on any regular basis, and Anguiano later clarified that any cleaning would have · 

been done at grouμd level, i.e. not in the area of the coupling itself. Tr. 59-60. Considering the 

location of the hazard, ~e limited protection provided· by the framing member~. the (act:that any 

cleaning would have been done at grounq ~~:vel where the ri* of in~Q.vertent c~ntact would have 

been substantially reduced, and that Barclay W<?uld most likely have noticed the missing.guard 

and replaced it within approximately two hours after the plant had been started up.and b~fore any 

28 FMSHRC.72 
cleaning activity would have been performed, l find that.it was not reasonably likely that the 

hazard contributed to would result in,an .injury, and that the-violation wa8 n0t_S&SJ .I agree with 

Anguiano? s assessment that .the operator's negligence was moderate and that one person was · 

affected by the violation. 

Citation No~ 6233499. 

Citation No. 6233499 also alleged a violation of30 C.F.R § 56.14107(a), the guarding 

standard. The violation was described in the Condition er Practice" s~tion of the citation as 

follows: 

The head pulley of the under roll c.onveyor-belt was not guarded . . A pinch point 

existed· between the smooth head pulley and the conveyor belt. · The .hazard is 69 

inches away from the .ground. (Supervisor) Ronny Barclay, and· employees .J.?ime 

Dominguez,, Santos Garcia are exposed :to the hazard-when they work in. the area, 

maintaining operation of the plant. Barclay. st.ated he knew of the condition for· 

two months: No :effort-to correct the condition was, attempted" .Barclay engaged: 

in aggravated conduct constituting more: than ordinary negligencejn that he:was 

aware the head·pulley exp~sed a pinch point hazard. This. 'liolation is an .. · • · 

unwarrantable failure to comply with the mandatory standard. 

Ex. P-3 . . . . · .. '•. 

Anguiano determined.that it was reasonably·likely that the violation: would.result in a . '. 

fatal injury; thatthe :violation was S&S, that three employees wereaffected·andthat'the · 

operator's· negligence was high. ·As noted in the body of the citation,.it--is; alleged .that the 

violation was the· result ofthe operator's unwarrantable failure to.-comply with a mandatory safety 

standard. A civil penalty in the amount of$6,300.00 has·been proposedifor thisviofation. 

The Violation 

Anguiano took a photograph· of the cited condition after a ·guard had been welded in place 

to abate the citation.4 Ex. P-3. With the 'exception of the approximately one foothigh piece of· 

expanded metal screen welded to the conveyor frame and depicted in the left center of the photo; 

3 Anguiano also believed that it was reasonably likely that Barclay would have become 

entangled in the rotating shaft and coupling. Tr. 56. How~ver, I reject that concl~sion, and 

accept Barclay's testimony, .~ · that upon noticing the ~azar~ he woul.d have shut down the 

motor and replaced the guard, a task that would have taken less than a minute. Tr. 51, 112. 

4 Weirich testified that there had never been a guard on the head pulley. Tr. 113. 

Anguiano agreed that there was no evidence that a guard had ever been fabricated·or:ihstalled on 

the head pulley prior to issuance of the citation. Tr. 79. 

28 FMSHR.C 73 
all of the other guarding shown in the picture was in place before the subject inspection . .Tr. 72, 

79. What is not apparent from Anguiano's photograph is that the-smooth.head pulley is located a 

considerable· distance off the ground. ·Tue location of the pulley is more accurately depicted in 

the upper-right-hand portion of Petitioner's Exhibit P-1. Anguiano attempted to measure the 

height of the pinch point, and obtained a figure of 69 inches. Tr. 64, 71, 116. Anguiano also 

testified that there were no obstructions between him and the pinch point when he. took the 

picture. Tr. 81 . 

. Anguiano's 69-inch height figure·was more of an.estimate than an'actual:measurement. 

It was taken from ground level, some four feet away from the side of the conveyor, to a 

"reference line," i.e., Anguiano's estimate of the height of the pinch point at that distance. 

Tr. 7 4-77. Access to the pinch point, where the conveyor belt. contacts ·the top of the smooth 

head pulley, -is considerablymore·restricted:than,is apparent·from Anguiano's photograph. 

Ex. P-3. Respondent introduced a photograph showing Barclay, who is .approxim~tely six feet 

tall, standing close:to the conveyor, fully·extending bis arm up ·and over electrical conduit and the 

conveyor frame, and still "not quite reaching the.pinch point.0 Tr. 139-40;·:ex: R-1, R-2;· Barclay 

testified that he couldn't reach:to the pinch point,'in·part, because he.had to stand in a small 

drainage ditch to approach iL Tr. 114, .l l8. He also testified that-he·did not -believe· that 

Anguiano' s measurement reflected the true ·height. of the pinch point. Tr. · H 7-18. . ..... ~ . . . 

The conveyor in question had been in essentially the same position since 1986. Tr. 115, 

136. It had been inspected twice yearly since that time, and the head pulley, which had never 

been guarded, bad never been cited as a violation.

5 113, 136-37. Anguiano, himself, had 

inspected the plant once prior to July 2004, and had failed to cite .. the condition, although he 

testified that.he-Would· have cited it ifhe·had seen it. Tr. 12, 77-78, 81. -On one1

.prior ~asion, · · 

an MSHA.inspector.had suggested adding some guarding to cover·an opening·on the.·sideof.the 

motor drive-guard, which was.done. Tr. 114, .136. ·That small, rectangular piece of woven-wire 

screen is shown bolted to the yellow framing on the right side of Anguiano's,photQgraph. 

Ex. P-3. 

Respondent contends that the condition was not a violation of the cited standard because 

the location of the head pulley dictated that·it could·noU:'cause injury," and that a guard was not 

required because the regulations state· that "guards. shallnot .be required where the exposed 

moving parts are at least seven feet away from :walking or working surfaces,"· 30 C.F.R . . 

§ 56.14107(b). It also contends that it did not have fair notice of the Secretary's interpretation of 

the guarding standard as applied to the particular condition here at issue. I agree with 

Re ~ondent on both points. 

Anguiano agreed that the opposite side ~f the head p~lley did not need to he guarded 

because it was i.Q.ac~essible." . Tr. 74. It ~ppears, ~owever, that the side he was concerned, about . . . . . .. . 

'. 

5 The Act requires that mines, other than underground coal mines, be inspeeted at least· 

two times per year. 30 U.S.C. § 813(a). 

28FMSHRC74 
was just as. effectively inaccessible lUlder any reasonable application of the regulation: It is · 

apparent from Respondent's photograph that the hazard, the pinch point of the belt and pulley,. · 

was at least seven feet away from where a person would have to stand in order to attempt to 

reach it. Ex. R-1. Moreover,:that location was ,ffi:a small drainage ditch, not ·a, walking or 

working surface. : There is no evidence that miners traveled or worked in the_ .immediate area, and 

it appears that there was no. possibility of inadvertent contact.- -Weirich and· Barclay beli~ved that 

the condition did not violate the regulation ,because the moving-machine parts in question could 

not cause injury, and were located at leastsevenfeet ·away from walking.or working surfaces. 

Several MSHA inspectors· that had ·inspected· the condition -in the past apparently reached the 

same conclusion. · 

I find that the SeGretary has failed to carry her burden of proving that the moving machine 

parts at issue presented a .hazard; .or that they were located less than:seven Je.et ·away:from 

walking or working surfaces. 6 ·The condition did not violate the ·regulation and the. c_~tation will 

be dismissed. . . . . 

In addition, enforcement of the regulation in this instance would be barred because 

Respondent did not receive fair notice of the Secretary's interpretation of the standard, i.e., a 

reasonably·prudent.person:familiar with the mining industry and1the'.protecti.v:e putp:o.ses of the 

standard would not have. recognized .the sp.ecific prohibition or requirement ofthe· Standard :as the 

Secretary seeks:. to apply it here. Jt is appatent that·numerous.MSHA inspe.ctors·have.observed.· · 

essentially.the same condition-and concludedthat:itdid.not :violatethe standard. :One inspectOr 

actually made a suggestion. to. i~prove the guarding of the drive· motor 011 ·the'.conveyor, but: did 

not suggest that additional guarding was needed for the head pulley. 

· · , :· 

There is no evidence that the Secretary has published notice or otherwise provided an 

interpretation of the ·regulation that would have infonned operators .with reasonable c.ertainty that 

the standard required guarding llllder the circumstances presented here~ None of:the 'other.factors 

typically considered in analyzing the .fair notice. argument provide significant.guidance·or suggest 

a result other than that Respondent did not have =fair notice of the Secretary's interpretation of the 

standard. 

Order No. 6233505 

Order No. 6233505:also alleges a violation of 30 C.F:R § 56.14107(a), the;guarding 

6 

· Anguiano testified that Barday agreed that the head pulley presented a haiard ·1hat 

could causeinjury to miners. Tr. 68-70 .. However, if Barclay made such a statement, it is not 

apparent whether he' was referring fo head ·pulleys in generaJ., or this particular-installation: ·As: 

Anguiano described the conversation, Barclay agreed that ''the head pulley should have been 

covered on both sides and on the back side.', Tr. 69. But, Anguiano, hitllself, believed that no ·· 

guard was necessary on the far side .of the-pulley, and none was ·required in order to abate the 

citatjQn. Tr. 74. 

28FMSHRC75 
standard. The violation was described in the "Condition or Practice" section of the citation as· 

follows · 

The six-bladed fan on the Detroit·diesel engine was not:guarded on the Northwest 

side. The engine is used-to drive:a.water pump. · The· engine and pump were.set· 

up on July 6, 2004. The hazards were the shaq) edges of the fan-blades; a.pinch 

. point on the V .:belt of the alternator and another·pinch point on the belt that turns 

the engine's crank shaft .. The hazards were-two ·feet from.the ground; The 

engine~s ignition•switch is-0n thesame side·that the hazards existed, An 

employee started the engine at 07:45 on this date. Rolllly Barclay (Supervisor) 

stated that he knew of the missing guard, and the engine had been overheating. A 

~ket had been replaced· on the valve cover. Barclay engagedin aggravated : 

conduct constituting more than ordinary. negligence in that he knew the guard was · 

not in.place. This·violation is an-unwarrantable failure to comply with·the·:_ 

mandatory standard. 

Ex. P-9 . .. · 

· Angu.iano=determined:tbat-it was reasonably likely that the'violation would re~•t-in a.-

permanently disabling injury, that the violation was S&S, that two employees were affected and 

that the operator'-s negligence was high . . As noted in the body of the order,jt is alleged that.the-· 

violation was the result of the operator?s unwarrantable failure to comply·with a mandato1ysafety 

standard: A civil penalty in the amount of$5;l00;00 has been proposed for this-violation. · ·. 

The Violation 

.t:. 

The cited condition is·depicted-in,photographs taken by Anguiano~ Ex. P-9. Therewas 

no guard.on the left side of the pump engine, and·the fan ·blades-and small-belt pulleys:near the 

front of the.engine were exposed. The·engine·was not running·atJhe time. -However,.it-had:.been 

operating that morning,:most likely from shortly -before Anguiano' s 8 :00 a.m .. arrival ·until about 

9:00 a.m., when other guarding violations were issued. Anguiano believed that employees.were 

exposed to the hazard four times each day as they accessed the "ignition switch" to start and stop 

the engine for the day and during the lunch break. Tr. 89-90. The switch is depicted in .one of· 

the pictures, mounted on a small plate, along with some gauges, to the rear and left of the engine. 

Ex. P-9. Because of the proximity of the exposed hazards to the switch. and the frequency that 

Aguinao believed that employees passed by the hazard, he concluded that it was reasonably likely 

that a serious crushing injury would occur. Tr. 92. Because Barclay wa5 aware that the guard 

was not in place, and .was responsible for Qther guarding viol~tions,. in.eluding or.ie. a~leged to be 

an unwarrantable failure,.Anguiano beμev¢ -that the.operator was highly negligent,and that the 

violation was the r~sult of an unwarrantable failure to, comply with a mandatory ~ety standard_. 7 

7 . Anguiano also related that he had had a later phone conversation with Weirich, who 

stated that he had told Barclay to reinstall the guard. Tr. 93. However, both Barclay and Weirich 

28FMSHRC 76 
. Barclay and Weirich testified that work had been done·on the engine the day before, in an 

attempt to remedy an overheating problem.· The .thermostat had been changed and.new belts had 

been installed. Tr .. 119, 145-47. "The guard.on the right side of the engine was in place, but the . . 

one on the left·had been·le.ft·offto facilitate possible further remedial efforts, e.g., tightening the 

new belts, or more substantial repairs if the engine continued· to overheat. The engine had been . 

running aboufan.hour, and.would have been checked at lunch.to.see if the.repairs had.been 

effective. Tr. 125-27, 147. The engine normally.ran all day, i.e;, it was not-shut off during the 

lunch break. Tr. 120. Barclay explained that the start,.. up ·procedure involved two. employees, 

neither of whom would be on the left side.of the engine, where the'hazards,were located. 

Tr. 121-24. Moreover, the switch was.not ari. electrical cut-off, it only·controlled the starter. The 

engine was shut offbypulling·backon the throttle, which was· located at the rear of the engine. 

Tr. 124, 148. Employees engaged in starting or stopping the engine would not be on the left side 

of the engine, near the hazard. They needed to be. to the right and rear of the engine, and th.ere 

was.an eight-inch diameter water-pipe that they would· have had.to crawl over to reach the. area. 

Tr. 121-25, 143-45, 148. The positions of employees engaged in starting the pump motor are 

depicted in pictures introduced by Respondent. Ex. R-5, R-7. Weirch explained that there was 

no reason that a miner would be on the left side of the engine, where the hazard was located. 

Tr. 146, 148. . . 

The guard that had been fabricated for the left side of the engine bad not been replaced, 

leaving the hazards exposed. Miners worked in.the area and,.although their.·exposure to the 

hazards was substantially more limited· than Anguiano believed, .it: was· possible that a miner 

would inadvertently ·come into contact with '.the hazards, and suffer. an injury. Consequently, 

I find that the regulation was, violated. · · 

Respondent relies· upon a. provision in the Secretary's· r.egulations .. stating:that guards are 

not required "when testing or making adjustments which cannot be performed without-removal 

of the guard." 30 C.F.R: § 56.141 l2(b). However, this limited exception does not·encompass 

running of the engine for the. whole morning to see ifit would continue to overheat. While such 

a trial might be characterized as a test, it could, and should, have· been.performed with the guard 

in place. I find that Respondent violated the regulation. 

Significant and Substantial 

While any injury suffered as a result of the violation would have been serious, no injury 

was reasonably likely to occur because of the limited access to the area. Anguiano did not 

explain the basis for his conclusions abouthow·often:employees would be in proximity to the 

hazards. He apparently assumed they would be exposed four times each day,because they would 

need to reach the ''ignition switch." His assumptions were erroneous in several respects. 

testified that the instruction was to let the engine run for awhile, that the belts would probably 

have to be tightened, and to replace the guard after the test. · Tr. 120, 145: I find the latter 

explanation more credible. · · . · 

28FMSHRC77 
Respondent's unrebutted testimony·establishes that the engine was started:and stopped only once 

each day, and that the switch was.used onlywhile·startingthe engine. :More significantly; the 

employees involved would not have been in close proximity to· the haiard, because .they would 

have been positioned to· the right and rear sides ofthe engine, ·as depicted.in Respondenfs · 

photographs; Ex: R-5, R.:. 7. Anguiano' s pictures, ,like those .taken with respect to the previous 

citation, adequately·depict the hazardous condition, but fail to depict the condition's accessibility. 

They do· not show that the·area on the·left side·of the· engine is· essentially bairicaded off by a 

large waterpipe approximately two feet off the· ground: Respondent's.testimony established that 

employees, who would be .in the vicinity of the engine only twice per day,-would·have remained· 

on the opposite side of.that pipe, substantially reducing their. exposure to the-hazards. The 

condition existed ·that morning and would have been corrected either at the noon break,. or at the 

end of the.day. Consequently, even the limited exposure.presented would hav:e affected 

employees on only two limited occasions. Under the. circumstances, I find that it was not. · · 

reasonably likely that the. violation would result. in an injury, and that-the violation._was not S&S. 

Unwarrantable Failure 

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001 ), the Commission reiterated 

the law applicable to determining whether a violation is the result of an unwarrantable failure: 

: · The mtwarrantable failure terminology is taken.from section l.04(d)of the 

Act, JO U.S.C;·§ 814(-cl), and refel."S to moJ,"e serious conduct byan operator in · . 

connection with a violation. In Emery Mining Corp., 9· FMSHRC 1997 (Dec. ·' ·· 

1987), the Commission determined that unwarrantable-failure is aggravat~d ·.· ' : 

conduct constituting more than ordinary negligence. Id. at 2001 . Unwarrantable 

failure is characterized.by·such conduct as· "reckless disregard,'.' "intentional 

misconduct," "indifference," or a "serious.lack of reasonabfo·care." ld.·at . 

2003-04;Rochester &Pittsburgh Coal Co., .13·FMSHRC 189, 194:(Feb. f991) 

("R&P''); see also Buck Creek [Coal, Inc; v. FMSHRC, 52 F .3d .133, 136 {7th Cir. 

1995)] (approving Commission's mtwarrantable failure test) ~ 

Whether conduct is "aggravated" in the context of unwarrantable failure is 

determined by looking at all the facts and circumstances of each case to :see if any 

aggravating factors exist, such as the length of time that the violation has existed, 

the extent of the ·violative condition, whether the operator has· beenplaced on . 

notice that greater efforts.are necessary for compliance,. the operator's efforts in 

abating the violative condition, whetherthe·violation is obvious orposes a high 

degree of danger, and the operator's knowledge Qf the existence of.the violation. 

See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) . . . . ;·Cyprus· 

Emerald R,es. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev 'd on other grounds, 

195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30~ 34 (Jan. 

1997); Mullins & Sons Coal C~ ,. 16 fl.dSHRG 1~2, 195 (FeQ. 1994); P:eabody . 

Coa{Co., 14 FMSHRCJ258, 1261 (Aug.1992); BethEnergy Mines, Inc., . . 

14.FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., H»FMSHRC 

28FMSHRC78 
705, 709 (June 1988). All of the relevant facts and circumstances of each case. 

must be examined to determine if an actor's conduct is aggravated, or w:hether 

mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because 

supervisors are held to a high standard of c.are, another important factor 

supporting an unwarrantable failure determination is the .involvement of a 

supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 

1998) . . 

The Secretary failed to carry·her burden of proof with respect to Citation No. 62~3.499, 

the head pulley guarding violation, negating the S&S and, unwarrantable failure alleg~ons as to 

that violation. The violation alleged in this order was also found to have been non-S&S. 

Consequently, it .cannot form the basis of an unwarrantable failure charge. 30 U.S.C. 

§ 814(d)(l). ·However,.even-ifit had been S&S, itwas.not the result of an unwarrantable failure. 

As noted above, the decision.to leav.e the guard off the left side of the engine while it was run . 

that morning, impennissibly stretched the testing exception of the regulations. How~ver •. 

considering the extremely limited exposure of employees to the condition, its location with 

respect to their positions, and the fact that the engine would have been started once and shut 

down once at the lunch break to d~ further repe\irs, or re-install .the guard, Respondent's .. 

negligence could not be characterized as· anything more .than modera~e, -and the violation was JtOt 

the result of an unwarrantable failure. · 

The Appropriate Civil Penalties · 

Weirich Brothers is a small operator, as is its controlling entity. The Secretary introduced 

a printout from MSHA's computer database1;.an Assessed Violation History Report, showing that 

Respondent had 21 assessed and sustained violations in the 24 month period preceding the 

issuance of.the subject citations. Ex·. P-1 l. Of those violations, 12 were regulady.ass,essed and 

four were S&S. The Proposed Assessment mailed to Respondent noted that there had been ~9 

assessed violations within the 24-month period, during which there had been 17 inspection days, 

i.e., 1. 7 violations had been issued per inspection day. Under the penalty formula used. by 

MSHA, this r:esulted in 16 penalty points being charged to Respondent,.indica~g a relatively 

poor violation history. 

8 Respondent introduced a financial statement, and argued that .the. . , · 

$12,331.00 in proposed civil penalties would affect its ability to remain in business. However, 

Weirich indicated that he might not make the argument if the penalties were in the $1,000.00 

range. I find that the penalties imposed below would not.affect Respond~t's ability to remain in 

business. All of the violations were promptly abated in good.faith. The.gravity and.negligence 

associated with the alleged violations have been discussed above. 

8 See 30 C.F.R. § ·100.3. Regular asse~~ments, as opposed to single penalty and special 

assessments, are determined by reference to a point scale, with points being assigned for each of 

the penalty factors specified in the Act. The table of points for violation history ranges from zero 

for up to 0.3 violations per inspection day, to 20 for over 2.1 violations per inspection day. 

28FMSHRC79 
Citation No. 6233497-was affirmed. However; it was found.not to have been S&S. The 

violation was unlikely to result in an injury, and any injury would have been minor. The 

operator's negligence was found to have been low. A civil penalty of$247.00 was proposed by 

the Secretary. I impose a penalty in the amount of $60.00, upon consideration of the above and 

the factors ·enunierated in section 11 Q(i) of the Act. 

Citation No. 6233500 was affirmed. However, it was found not to have been=S&S. The 

violation was wilikely to result in an injury. A civil penalty of $324.00 was proposed by the 

Secretary. I impose a·penalty-iri the ~ount of$275 00, upon.consideration of the above and the 

factors enumerated'in section HO(i) of the Act. . .. 

Order No. 6233505· was: found not to have been S&S, and was not the·result of the 

operatOr's wivvarrantable failure. The operator~s negligence was.moderate. Consequently, the 

order 'will be modified to a citation issued under section l04(a) ·of the Act. A civil_penalty of 

$5,100.00 was·proposed by the Secretary. I impose a ·penalty.in"the a:μiountof $300.00;upon . 

consideration of the above and· the factors .enumerated in section 11 O(i) of the· Act. . .. .· . 

Respondent withdrew its contest and request for hearing.with respect to Citation-Nos~ · 

6233498, 6233501, 6233502, 6233503, 6233504., and 6233506 . . '.rt agreed to pay the propo~ .. ·. 

penalties for those violations, a total of $360.00. I have considered'the representations: and · ·. · · ·. 

evidence submitted and conclude that the proffered resolution is appropriate under the criteria set 

forth in section 1 lO(i) of the Act. Respondent will be ordered to pay·civil pen~ties inthe . · · 

amount of$360.00 for those violations. 

. . .. 

···ORDER 

• ·' ·, • 1· 

Citation No. 6233499 is hereby VACATED and the petition as· to that citation is hereby · 

DISMISSED. 

Citation Nos. 6233497 and· 6233500 are AFFIRMED, as modified. Order No. 6233505 

is modified to a citation issued pursuant to section 104(a}ofthe.Act, and is·AFFIRMED, as '. 

modified: Respondent is directed to pay civil penalties totaling $635.00 for those violations. 

Payment shall be made within 45 days. 

With respect to .the six citations asto which Respondent withdrew its contest and request 

for hearing, Respondent is ordered t6'pay civil penalties totaling $360, withih.45 days. 

......... ielinski · .. · '· ·' 

C ..... ·A · · ative:I..aw Judge · · 

28 FMSHRC80 
Distribution: (Certified Mail) 

Carlton C. Jackson, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin 

St., Suite 501, Dallas, TX 75202 

Terry Weirich, President, Weirich Brothers, Inc., P .0. Box 206, Johnson City, TX 78636 

/mh 

28FMSHRC81 
--
·. 

ADMINISTRATIVE LAW JUDGE ORDERS 
., t ... 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington, DC 20011 

Telephone No.: (202) 434-9958 

Fax .N.o.: (202) 43!1:-9949 

. February 28, 200Q 

SECRETARY,OF LA.SOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVJLPENALTYPROCEEDING 

v. 

BLACK HA WK MINING, · 

Respondent 

Docket No·. WEV A 2006-22 

A. C. No. 46-08266-66818 

Docket No. WEV A 2006-37: . 

A. C. No. 46-08266-69749· 

Mine: Josephine No. J · 

ORDER TO SUBMIT ADDmONAL INFORMATION * 

._ 

These cases concern proposals for assessment of civil penalties .filed pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 815(d)), seeking the 

assessment of 11 alleged·violations,o(mandatory safety standards found in··Parts 75-.and 50, Title 

30, Code of Fede~l Regulations. 

On January 17, 2006, the Commission recei:ved the Secretary's Motion for.Settlement. In 

her motion, the Secretary states that the parties propose to ·reduce the total.assessment for the 11 

violations, including one violation issued as a result of a serious injury, from $62,825.00 to 

$16,078.00. This 74% reduction was based upon the Secretary's review·ofthe.factual 

circumstances and "other relevant criteria," including· Section 11 O(i) criteria and the .fact that 

New South Resources dba Black Hawk Mining filed· for Chapter 11 Bankruptcy in August 2002 

and ceased business:in November 2005. 

Congress stressed the importance of reviewing proposed settlements in ·an open and : 

public manner and has placed a heavy burden on the Commission and its judges to provide this 

oversight. S. Rep. No. 181, 95t1i Cong., !st Sess. 44-45 (1977), reprinted in Senate Subcommittee 

on Labor, Committee on Human Resources, 951h Cong., 2d Sess., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 632-633 (1978) ("Legis. Hist."); 30 U.S.C. § 

820(k). It is the judge•s responsibility, regardless of whether both parties have agreed on a 

settlement, to determine the appropriate penalty amount, in accordance with the six criteria set 

forth in Section llO(i) of the Act. Sellersburg Stone Co., 736 F.2d 1147, 1151 (7th Cir. 1984). 

28 ·FMSHRC 82 
. : . '• . ·'. . ... ..... ... : .: 

. .· : ,.· .. 

Judges must consider all six of the criteria and are obliged to direct the parties to supplement the 

record as required for them to discharge this duty. See, e.g., Secy of Labor on behalf of Hanna 

v. Consolidated Coal Co., 20 FMSHC 1293, 1303·(Dec. 1998). Findings of fact on each of the 

statutory criteria provide the operator with the required notice as to the basis upon which it is 

being assessed a particular penalty, while also providing the "Commission and the courts .. . 

with the necessary·foundation upon'which to base a determination as to whether'thepemilties · 

assessed by the judge are appropriate, excessive, or insufficient." Sellersburg Stone CD., 5 · 

FMSHRC 287, 292-293 (Mar. 1983). 

In addition to the criteria laid out in section 11 O(i), the Commission and its judges must 

"assure that the public mterest 'is adequately protected before approval of any reduction in 

penalties." Conf. Rep. No. 181, 95lh Cong., pt Sess. 45 (1977), reprinted in Legis. Hist. at 633. 

Section 11 O(k) of the Mine Act requires judges to protect the public interest by ensuring that all 

settlements are consistent with the Mine Act's objectives. Knox County Stone Co., 3 FMSHRC 

2478, 2479 (Nov. 1981).· As foriner Chief Administrative Law Judge Paul"Merlin· stated: · 

Under the Mine Safety Act unlike most statutes, the administrative law judge 

has the affirmative duty to approve a settlement, even if the parties themselves 

have agreed upon its terms. Under this law the judge does not have to approve 

a settlement,· ifhe:determines· i( is not. in.the':public's lnterest. fu.:othefwords, 

the judge is here to guarantee the public interest .... 

Explo-Tech Inc.:, 16 FMSHRC 931, 933 (Apr, 1994)(ALJ) (emphasis added) . . . . : .. . . The·Secretary·has failed to provide-adequate evidence4o·support the-proposed settlement 

under the six criteria of Section 1 lO(i). At a minimum, the parties·must:provide evidence· to 

support the assertion that the settlement penalty is justified under each of the six criteria. Thus, I 

must.deny the subject·motion unless the parties supplement the record with support-showing how 

the penalty amount-adequately considers each of the six criteria in Section l lO(i): . . \ 

Judges.are required to verify·the merits.of a proposed:settlement to·detennine if it protects· 

the public interest: However; the judge cannot·safeguard, Congress' ·fitst priority - the health' arid 

safety of the miner - when the parties ·do not document their assertions.· The parties provided no 

evidence to suggest that the 74% reduction in assessed penaltysupportS·the public's interest· 

Additionally, the settlement motion fails to discuss any of the facts surrounding the accident or 

identify with specificity the reasons· for ,the· proposed reduction. 

.. .. 

28FMSHRC83 
THEREFORE, it is ORDERED. that the parties submit the required additional 

information and any supporting documentation within 15 days of the date of this order. I am 

mindful that the parties may desire to keep sensitive :financial information confidential. If so, the 

parties may submit any documents to. me for in camera review and may request that; they be 

placed under seal ·subject to further review only by the Commission or a higher appellate body. 

Failure to comply with this order will result in the denial of the settlement mo~on. · 

Robert J. Lesnick 

Chief Administrative Law Judge ·. 

Distribution: (Certified Mail) 

Richard D. Hosqh, Esqiiire, U.S. Departm~nt of Labor,_ Mine Safety and Health Administratj.on, 

100 Bluestone Road, Mt. Hope, WV 258~~- 1000 . 

David J. Hardy, E~uire, Spilinan Tholl!~ & Battle, "P.LLt, 300 Kanawha Blvd., East, P . .0. :Bo~ . 

273, Charleston, WV 25321-0273 

*this is a co"ected, ver;sion that was re-issued Mar.c.,h .6, 2006 . 

. ~ : . ' . 

' . 

28FMSHRC84 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington DC, 20001·2021 

Tel~phone: (202) 434-8958 · . 

~ax (202)"34-9949 . . . , . 

.· 

SECRETARY OF lABOR, 

February 28, 2006 

· CIVILPBNALTYPROCBEDJNG 

MINE SAFETY AND HEALTH· 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

R.J. CINCOTTA CO., INC., 

Respondent 

· .. . 

· DocketNo. YORI(ioo5.:116 M 

A. C. No. 19-01114-56147 

Mine: Portable Crusher 

ORDER TO RESPONDENT TO SUBMIT SUPPORTING DOCUMENTATION • •,,! ... 

This case is before me pursuant to an order of the Co~sion dated February~' 2006, 

remandingthis matter for further consideration and determination as to' whether the ·operator, 

R.J. Cincotta Company, Inc., ("Cincotta'') is entitled to relief under Rwe 60{b) of the F&terat . 

Rules of Civil Procedure. 1 In particular, Rule 60(b )( 1) provides relief from a fi~l judgmeμt in 

cases where there has been a "'mistake, inadvertence, surprise, or excusable n~gl~t'" .Fed: R. · 

Civ. P. 60(b)(l). . 

This matter arose because Cmcotta did·noi-°file ~i'timelyanswer to· the Seeretary of 

Labor's ("Secretary'') penalty petition or to my August 18, 2005 show cause order. When I did 

not receive a response to the show cause order, I issued a default order on November 2, 2005, 

in which I directed Cincotta to pay the proposed penalty assessment. In support of its request, 

Cincotta, appearing pro se, claims it never received the default and that it "never heard back for 

[sic] an order to the respondent to show cause." Resp 't Mot. The Secretary indicates that she 

does not oppose Cincotta's request. 

The Commission has stated that default is a harsh remedy, and if the defaulting party 

makes a showing of adequate or good cause for failing to timely respond, the case may be 

reopened. Coal Prep. Services, Inc., 17 FMSHRC 1529, 1530 (Sept.1995). In addition, the 

Commission has held pleadings drafted by pro se litigants to a less stringent standard than that 

applied to documents drafted by attorneys. Marin v. Asarco, Inc., 14 FMSHRC 1269, 1273 

(Aug. 1992)(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). However, based upon the 

record before me, I am unable to determine whether Cincotta has adequate cause for failing to 

timely file its notice of contest. The record includes certified return receipts signed by a 

company representative indicating Cincotta's receipt of both the show cause and default orders. 

1

While the Commission is not obligated to adhere to the Federal Rules of Civil 

Procedure, the Commission has found guidance and has applied "so far as practicable" Rule 

60(b). 29 C.F.R. § 2700.l(b). 

28FMSHRG8$ 
Accordingly, Cincotta is ORDERED to address the issue of why it failed to file a 

timely notice of contest, particularly in light of its receipt of the show cause order, within 20 

days of the date of this order. If Cincotta restates its claim of not having received the show 

cause order, it must explain why this Commission should not consider the enciosed certified 

return receipts as proof of its receipt of the show cause order. Cincotta must send sworn 

statements attesting to the veracity of its claim. 

Robert J. Lesnick 

Chief Administrative Law Judge 

Enc. 

Distribution: (Certified) 

David L. Baskin, Esq., Office of the Solicitor, U.S. Department of Labor, JFK Federal 

Building, Room E375, Government Center, Boston, MA 02203 

Debbie Cincotta, RJ. Cincotta Company, Inc., P.O. Box 556, Wal~ MA 02454 

/aak 

28FMSHRC 86 

G:.(} u.s. GOVERNMENT rRINTING OFFICE: 2006--320-961/43951 
·. 

· .. 

. . . ,·