NOVEMBER 2000 

COMMISSION DECISIONS AND ORDERS 

11-02-2000 Disciplinary Proceeding 

11-03-2000 Justis Supply & Machine Shop 

11-17-2000 Idaho Minerals 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-02-2000 TXI Port Costa Plant 

11-03-2000 White Construction Co., Inc. 

11-07-2000 Shelly Materials Inc. 

11-17-2000 Brian T. Christie v. Mountain Spring Coal Co. 

11-22-2000 Sec. Labor on behalf of Terry McGill v. 

U.S. Steel Mining Co., LLC. 

11-24-2000 Northern Stone Supply, Inc. 

11-29-2000 Freeman United Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-09-2000 Performance Coal Company 

11-14-2000 Metro Recycling and Crushing Inc. 

i 

D 2000-2 

CENT99-272 

WEST 2000-632-M 

WEST 99-364-M 

SE 2000-228-RM 

LAKE 2000-64-M 

PENN 2000-23-D 

SE 2000-39-D 

WEST 2000-245-M 

LAKE 2000-102-R 

WEY A 99-40-R 

YORK 2000-46-M 

Pg. 1289 

Pg. 1292 

Pg. 1301 

Pg. 1305 

Pg. 1317 

Pg. 1321 

Pg. 1322 

Pg. 1327 

Pg. 1337 

Pg. 1345 

Pg. 1349 

Pg. 1355 

NOVEMBER 2000 

There were no cases in which review was granted during the month of November 

Review was denied in the following case during the month of November: 

Donald Ribble v. T & M Development Company, Docket No. LAKE 2000-25-M, 

October 11, 2000 (Judge Melick) 

ii 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

DISCIPLINARY PROCEEDING 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 2, 2000 

Docket No. D 2000-2 

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

ORDER 

BY THE COMMISSION: 

On May 17, 2000, Chief Administrative Law Judge David Barbour sent to the 

Commission a disciplinary referral pursuant to Rule 80 of the Commission's Procedural Rules, 

29 C.F.R. § 2700.80. 1 This matter was raised by Lue A. Wilson.2 We have reviewed the 

1 Commission Procedural Rule 80 provides in pertinent part: 

(b) Grounds. Disciplinary proceedings may be instituted against anyone who is 

practicing or has practiced before the Commission on grounds that such person 

has engaged in unethical or unprofessional conduct; h3S failed to comply with 

these rules or an order of the Commission or its Judges; has been disbarred or 

suspended by a court or administrative agency; or has been disciplined by a Judge 

under paragraph ( e) of this section. 

( c) Disciplinary proceedings shall be subject to the following procedure: 

(2) Inquiry by the Commission. The Commission shall conduct an inquiry 

concerning a disciplinary referral and shall determine whether disciplinary 

proceedings are warranted. The Commission may require persons to submit 

affidavits setting forth their knowledge of relevant circumstances. If the 

Commission determines that disciplinary proceedings are not warranted, it shall 

issue an order terminating the referral. 

29 C.F.R. § 2700.80. 

2 In December 1999, Lue Wilson filed a dis~rimination complaint under section 

105(c)(3) of the Mine Act, 30 U.S.C. § 815(c)(3), against his former employer, Sidco Mining, 

1289 
submissions and considered the allegations of misconduct pr~sented by Mr. Wilson, and 

conclude that even if the facts he alleged were true, they would not warrant disciplinary 

proceedings under Commission Procedural Rule 80. Accordingly, this inquiry is terminated. 

James C. Riley, Commissioner 

Robert H. Beatty, Jr., Commiss· ner 

Inc. ("Sidco"), which is currently pending before the Commission, awaiting hearing before an 

administrative law judge. Wilson v. Sidco Mining, Inc. , Docket No. CENT 2000-87-DM. 

1290 
Distribution 

Bryce J. Denny, Esq. 

Cook, Yancey, King & Galloway 

333 Texas Street, Suite 1700, P.O. Box 22260 

Shreveport, LA 71120 

Chief Administrative Law Judge David Barbour 

Federal Mine Safety & Health Review Commission 

1730 K Street, N. W., Suite 600 

Washington, D.C. 20006 

1291 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 3, 2000 

Docket No. CENT 99-272 

JUSTIS SUPPLY & MACHINE SHOP 

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

DECISION 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), in which Justis Supply & Machine 

Shop ("Justis") challenges three citations issued by the Department of Labor's Mine Safety and 

Health Administration ("MSHA"). At issue is whether Administrative Law Judge Richard 

Manning correctly determined that the site at which Justis was working on a dragline was a 

"mine" within the meaning of section 3(h)(l) of the Act, 30 U.S.C. § 802(h)(l). 1 22 FMSHRC 

1 Section 3(h)(l) provides: 

"[C]oal or other mine" means (A) an area ofland from which 

minerals are extracted in nonliquid form or, if in liquid form, are 

extracted with workers underground, (B) private ways and roads 

appurtenant to such area, and (C) lands, excavations, underground 

passageways, shafts, slopes, tunnels and workings, structures, 

facilities, equipment, machines, tools, or other property including 

impoundments, retention dams, and tailings ponds, on the surface 

or underground, used in, or to be used in, or resulting from, the 

work of extracting such minerals from their natural deposits in 

nonliquid form, or if in liquid form, with workers underground, or 

used in, or to be used in, the milling of such minerals, or the work 

of preparing coal or other minerals, and includes custom coal 

preparation facilities. 

1292 
544 (Apr. 2000) (ALJ). For the reasons that follow, we affirm the judge's determination and 

therefore uphold the citations and penalties. 

I. 

Factual and Procedural Background 

BHP Minerals, Inc. ("BHP") operates the Navajo Mine, a surface coal mine in San Juan 

County, New Mexico. 22 FMSHRC at 544. BHP uses draglines2 at the mine to remove topsoil 

and other material to expose the coal seam. Id. According to MSHA Inspector Peter Saint, BHP 

had a total of three draglines at the Navajo Mine, including the dragline involved in this 

proceeding, at the time of the trial. Tr. at 16. 

On January 5, 1999, MSHA Inspector Saint was conducting a regular inspection at the 

Navajo Mine. 22 FMSHRC at 544. As part of that inspection, he went to an area where a 

dragline was being assembled. Id. The site was about one mile from where coal was being 

mined. Id. An earthen berm surrounded the dragline site. Id. The site was accessible either by a 

public road or a private road that ran directly from the mine. Id. 

The dragline was being assembled by a contractor, CDK. Id. CDK, in tum, contracted 

with Justis to perform cutting and welding services. Id. at 544-45. Employees of Justis, which 

operated out of Farmington, New Mexico, brought a welding truck to the site. Id. at 545. The 

first time Justis personnel arrived at the site, they came over the road from the mine. Id. BHP 

security personnel examined Justis' trucks and gave Justis employees a training handbook. Id. at 

546. Thereafter, Justis employees entered and exited the dragline assembly site over the public 

road. Id. at 545. Neither CDK nor Justis performed any work at the site other than on the 

dragline. Id. at 546. 

MSHA Inspector Saint came to the site over the mine road. Id. at 545. While at the site, 

he inspected several pieces of equipment that belonged to Justis, including a welding.truck. See 

id. Justis' truck was not equipped with a backup alarm. Id. at 549. It had a gas powered welder 

mounted behind the cab. Id. Oxygen and acetylene tanks were mounted on the bed of the truck, 

and tool boxes were attached to the sides of the bed. Id. This equipment obstructed the rear 

view from the cab of the truck. Id. The rear of the truck was used as a workbench and was 

equipped with a vise and rack. Id. The truck was parked front end first about 40 feet from the 

dragline, and CDK and Justis employees were working in the area. Id. The inspector issued a 

2 A dragline is "[a] type of excavating equipment which casts a rope-hung bucket a 

considerable distance, collects the dug material by pulling the bucket toward itself on the ground 

with a second rope, elevates the bucket and dumps the material on a spoil bank, in a hopper, or 

on a pile." American Geological Inst., Dictionary of Mining, Mineral, and Related Terms, 167 

(2d ed. 1997). 

1293 
citation charging a violation of30 C.F.R. § 77.410(a)(l)3 for failing to provide the truck with a 

back-up alarm when it had an obstructed rear view.4 Id. at 54.8. The inspector issued two 

additional citations. 5 Id. at 550-51. 

The Secretary issued a proposed assessment of civil penalties that Justis contested, and a 

hearing was held. Relying on section 3(h)(l) of the Mine Act, 30 U.S.C. § 802(h)(l), and its 

legislative history, the judge concluded that the dragline site where Justis employees worked fell 

within the Act's definition of a "coal or other mine." 22 FMSHRC at 546. He noted that the 

only acti vity at the site was the assembly of the dragline to be used for mining at the Navajo 

Mine. Id. The judge distinguished the factual setting in this case from one involving a 

commercial welding operation, which was open to the public, on a site adjacent to a mine. Id. at 

547. He concluded that, except for the fact that an independent contractor was involved, the case 

was similar to Jim Walter Resources, Inc., 22 FMSHRC 21 (Jan. 2000), where the Commission 

held that a supply shop, not located at a mine site, was a "mine" because the Mine Act's 

definition includes "facilities and equipment" used in or to be used in mining. Id. The j udge 

reasoned that, if BHP employees were assembling the dragline at the site, they would clearly be 

subject to Mine Act jurisdiction. He held that the fact that those activities were being performed 

by independent contractors should not change the result. Id. Based on his determination that the 

dragline site was a mine, the judge concluded that Justis was an "operator" under section 3(d) of 

the Mine Act, 30 U.S.C. § 802(d), because it was an " independent contractor performing services 

or construction at [a] mine." Id. at 548. 

The judge affirmed the violations charged in the three citations. Id. at 548-52. With 

regard to the citation charging Justis with a failure to provide a back-up alarm on its welding 

truck, the judge rejected Justis' contention that the truck was a "service vehicle" within the 

meaning of MSHA's Program Policy Manual ("PPM"), concluding that the PPM did not exclude 

from the requirements of section 77.4IO(a)( 1) the truck of an independent contractor, when the 

truck was a~ integral part of the welding service that Justis provided. id. at 549. 

3 Section 77.410(a)(l) provides in pertinent part: "Mobile equipment, such as ... trucks, 

except pickup trucks with an unobstructed rear view, shall be equipped with a warning device 

that gives an audible alarm when the equipment is put in reverse .... " 

4 The inspector designated the violation as significant and substantial. Id. at 548. The 

judge upheld that designation (id. at 550), and Justis has not challenged that determination on 

review. 

5 The inspector issued a second citation when he located a hand-held grinder that had a 

trigger lock that allowed it to run when there was no pressure on the trigger. Id. at 550. He 

issued a third citation as a result of the three-ton hoist on the back of the welding truck not 

having a safety latch on the hook to prevent cable from coming off the hook. Id. at 551. These 

two citations are cha I lenged only on jurisdictional grounds. 

1294 
II. 

Disposition 

Justis argues that the assembly site was not a mine and that its employees at the dragline 

site were not "miners" because they were not in frequent contact with the extraction site "and the 

accompanying dust exposure." J. Br. at 4. Relying on cases arising under Title IV of the Mine 

Act, which governs black lung benefits, Justis contends that its employees would be ineligible for 

black lung benefits because they are not "miners," and, therefore, estoppel prevents the Secretary 

from taking a contrary position in this proceeding. Id. at 4-6; J. Rep. Br. at 4-5. Further, Justis 

asserts that section 3(h)(l) of the Mine Act is unconstitutionally vague because it fails to give 

Justis fair warning of when and where its jurisdiction applies. J. Br. at 6-8; J. Rep. Br. at 5-8. 

Justis continues that Congress did not intend that vendors of welding services be covered by the 

Mine Act. J. Br. at 8-9. Justis further argues that the judge erroneously concluded that the site 

where the dragline was being constructed was a "mine" even though there was no evidence in the 

record establishing the identity of the owner or lessor of the site. Id. at 9-1 O; J. Rep. Br. at 1-2. 

Justis continues that the judge incorrectly assumed that CDK was not a trespasser and that CDK 

and Justis were invitees of the operator of the Navajo Mine. J. Br. at 10; J. Rep. Br. at 1-2. 

Similarly, Justis contends that there was no evidence establishing that the dragline was being 

assembled at the CDK site for use at the Navajo Mine. J. Br. at 10-12; J. Rep. Br. at 2-3. Justis 

also argues that there was no evidence to establish that the only work done at the assembly site 

was on the dragline. J. Br. at 12. Finally, Justis argues that its welding truck was exempted from 

section 77.410 by the Secretary's PPM, because it was a "service" vehicle. J. Br. at 9, 12-14. 

The Secretary argues that the plain language of section 3(h){l) of the Mine Act 

establishes the dragline assembly site is a "mine." S. Br. at 6-9. The Secretary asserts that cases 

addressing black lung benefits are not controlling, pointing out that the definition of a ''mine" in 

section 3(h)(2.), which applies to black lung cases, has a "geographical component" that section 

3(h)(l) does not have- requiring that structures, facilities, machinery, and other property be 

"placed upon, under, or above the surface of such land .... " Id. at 10-13. The Secretary also 

notes that the courts and the Commission have repeatedly held that the definition of a "mine" 

should be applied expansively. Id. at 12-14. Alternatively, the Secretary argues that her 

interpretation of the definition of"mine" should be given deference. Id. at 15-16. The Secretary 

contends that Justis' argument that the Mine Act is unconstitutionally vague was not raised 

before the judge and, therefore, should not be considered by the Commission. Id. at 16. The 

Secretary continues that, in any event, Justis had adequate notice of Mine Act jurisdiction. Id. at 

16-19. The Secretary further contends that the judge's factual findings are supported by 

substantial evidence. Id. at 19-22. Finally, the Secretary argues that Justis' welding truck is not 

within the exception in the PPM, which covers "service vehicles" making visits or deliveries to a 

mine. Id. at 22-25. 

The first inquiry in statutory construction is "whether Congress has directly spoken to the 

precise question at issue." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 

1295 
U.S. 837, 842 {1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 {Apr. 1996). If a statute 

is clear and unambiguous, effect must be given to its language. See Chevron, 467 U.S. at 842-

43; accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 {D.C. Cir. 1990). In 

ascertaining the plain meaning of the statute, courts utilize traditional tools of construction, 

including an examination of the "particular statutory language at issue, as well as the language 

and design of the statute as a whole," to determine whether Congress had an intention on the 

specific question at issue. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); Local Union 

1261, UMWA, 917 F.2d at 44; Coal Employment Project v. Dole, 889 F.2d 1127, 1131 {D.C. Cir. 

1989). 

The definition of a mine is "broad," "sweeping," and "expansive." Marshall v. Stoudt 's 

Ferry Preparation Co., 602 F.2d 589, 591-92 (3d Cir. 1979), cert. denied, 444 U.S. 1015 (1980) 

("[T]he statute makes clear that the concept that was to be conveyed by the word [mine] is much 

more encompassing than the usual meaning attributed to it - the word means what the statute 

says it means.").6 Under section 3(h)(l), "coal or other mine" includes "lands, ... structures, 

facilities, equipment, machines, tools or other property ... used in, or to be used in, . .. the work 

of preparing coal ... " 30 U.S.C. § 802{h)(l) (emphasis added). . 

We conclude that the language of the statute is clear. In light of the Mine Act's 

expansive language, we further hold that the judge properly determined that the dragline 

assembly site is a mine under the definition of section 3(h)(l ). See 22 FMSHRC at 546. The 

record clearly demonstrates that the dragline was equipment "to be used in" mining coal. Saint 

testified without contradiction that at the time of the hearing, the dragline was in operation at the 

Navajo Mine. Tr. 19. Justis welding foreman Bob Sanders also testified that the dragline was to 

be used at the mine. Tr. 96; see also Tr. 60. Consequently, there is Mine Act jurisdiction 

because a "mine" includes "equipment ... to be used in" mining operations at BHP's Navajo 

Mine. 

This conclusion is consistent with our reasoning in Jim Walter Resources, where we held 

that a common supply shop for several mines that was not located at any of the mines was subject 

to Mine Act jurisdiction. In that case we noted that "the hazards to which mines are exposed are 

not limited to the hazards of underground mines, but include improperly maintained equipment 

and supplies that are used in mining." 22 FMSHRC at 27. 

Justis argues that the judge erred in concluding that Justis and CDK were invitees at the 

assembly site. J. Br. at 10. Although there was testimony in the record regarding BHP 

6 In addition, the legislative history of the Mine Act emphasizes that "what is considered 

to be a mine and to be regulated under this Act [shall] be given the broadest possibl[ e] 

interpretation, and ... doubts (shall] be resolved in favor of ... coverage of the Act." S. Rep. 

No. 95-181, 95th Cong., at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on 

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

1977, at 602 (1978). 

1296 
ownership of the dragline assembly site (Tr. 14-15), the judge ~id not make a finding on this 

issue. Instead, he found that "CDK was not a trespasser on the land. CDK was the principal 

employee at the site and exercised control over the site." 22 FMSHRC at 546. Substantial 

evidence supports the judge's findings.7 Saint and Sanders both testified that CDK was a general 

contractor responsible for assembling the dragline and that Justis was retained by CDK to 

perform cutting and welding. Tr. 16-18, 55, 96. Further supporting the integral relationship 

between Justis, CDK and BHP is Sanders' testimony that Justis employees were required to 

report to the BHP security personnel upon coming to the site for the first time in order to have a 

vehicle inspection. Tr. 82, 90. BHP personnel told Sanders that he would be working at the 

CDK site and directed him to it. Tr. 90. In addition, BHP security personnel provided training to 

Justis personnel when they entered the mining area. Tr. 97. 

Further, the judge's rejection of Justis' challenge based on lack of evidence of ownership 

is consistent with Commission precedent. In W J. Bokus Industries, Inc., 16 FMSHRC 704, 

707-708 (Apr. 1994 ), the Commission rejected "insufficient evidence of ownership" of the 

equipment in question as a basis for denying jurisdiction where the evidence showed that the 

equipment was "used or to be used in mining and that, irrespective of ownership, the cited 

conditions would affect miners." 16 FMSHRC at 708. In sum, there was more than adequate 

evidence to support the judge's finding that CDK was not a trespasser and was properly at the 

assembly site. 

Finally, Justis argues that there was no evidence to support the judge's finding that all 

work done at the CDK site was done on the dragline. J. Br. at 9, 12. However, Justis' own 

witness, Sanders, when asked to describe the work that Justis employees were performing at the 

site, identified only cutting and welding on the dragline. Tr. 82-83, 94-95. Similarly, Sanders 

testified that the site was used solely by CDK and Justis for the assembly of the dragline. See Tr. 

91, 93, 96. Therefore, in the absence of any countervailing testimony, the judge was well 

warranted in concluding that the only activity at the site was construction of the dragline. 

In regard to Justis' reliance on cases dealing with black lung benefits, it is apparent that a 

different definition of"coal mine" applies to those cases. Section 3(h)(l), which defines "coal or 

other mine," applies only to Title I of the Mine Act. Section 3(h)(2),8 which defines "coal mine," 

7 When reviewing an administrative law judge's factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh 

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). 

8 30 U.S.C. § 802(h)(2) states in pertinent part: "'[C]oal mine' means an area ofland and 

all structures, facilities, machinery, tools, equipmen~, ... and other property ... placed upon, 

under or above the surface of such land ... used in, or to be used in ... extracting ... coal .... " 

1297 
applies to Title IV, the black lung benefits program. The Commission has previously considered 

and rejected reliance on cases arising under Title IV because these cases "lack precedential value 

in resolving ... Mine Act jurisdictional dispute[s]." Pennsylvania Electric Co., 11 FMSHRC 

1875, 1881-82 n.7 (Oct. 1989), aff'd on other grounds, 969 F.2d 1501 (3rd Cir. 1992). In 

Westwood Energy Properties, 11 FMSHRC 2408 (Dec. 1989), the Commission explained that 

the financial scheme of the black lung benefits program is based on coal production; therefore, 

the specified activities in section 3(h)(2) must be tied to coal production. Id. at 2415 n.5. As the 

Commission concluded, the black lung benefits cases do not provide a basis from which to 

extrapolate an exemption from Mine Act coverage. Id. 

Moreover, under section 3(g) of the Mine Act, 30 U.S.C. § 802(g), a "miner" is "any 

individual working in a coal or other mine." Thus, contrary to Justis' apparent assertion, an 

individual need not be "extracting coal" or "exposed to coal dust" in order to be a "miner" under 

the Act. See J. Br. at 4. Accordingly, Justis' argument that its employees were not "'miners' in 

the broadest sense of the word" is unavailing. Id. 

In its alternative argument, assuming arguendo Mine Act jurisdiction, Justis challenges 

only the citation involving its failure to equip its welding truck with a backup alarm. It contends 

that the truck is within an exception from the backup alarm requirement in the Secretary's PPM, 

which exempts from the regulation's requirements service vehicles making visits to surface 

mines. V MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 77 Subpart ESafeguards for Mechanical Equipment, at 171 (1992). The judge concluded that the welding 

truck was not a service truck making visits to the mine because it was a truck belonging to an 

independent contractor providing welding services at a mine. 22 FMSHRC at 549. 

The applicable regulation, section 77.410(a)(l), requires pickup trucks with obstructed 

views to have audible backup alarms. The PPM limits application of the regulation by 

exempting s.ervice vehicles making visits to the mine.9 Saint testified that the exception covered 

UPS and other delivery trucks that do not perform work at the mine. Tr. 56, 76-78. Clearly, the 

welding truck was not at the site on a short term basis to make deliveries of equipment or 

employees to the mine. Rather, as Saint further testified, the welding truck, which had an 

obstructed view, was present at the assembly site throughout the day and served as a portable 

work station for cutting and welding on the dragline with employees working behind it. Tr. 25-

29. Therefore, the judge properly concluded that the welding truck did not fall within the PPM's 

exception. 

9 The PPM, although not binding on MSHA, is regarded as evidence ofMSHA's policies 

and practices. Coal Employment Project, 889 F.2d at 1130 n.5. 

1298 
III. 

Conclusion 

For the foregoing reasons, we affirm the judge's determination that the dragline assembly 

site was a mine and uphold the citations and penalties. 

1299 

James C. Riley, Commissioner 

Theodore F. Verheggen, Com 

Robert H. Beatty, Jr., Commissioner / 

/ 
Distribution 

John F. Martin, Esq. 

Godwin, White & Gruber 

901 Main Street, Suite 2500 

Dallas, TX 75202-3727 

Jack Powasnik, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge Richard Manning 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

1244 Speer Blvd., Suite 280 

Denver, CO 80204 

1300 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

IDAHO MINERALS 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

November 17, 2000 

Docket No. WEST 2000-632-M 

A.C. No. 10-01299-05529 

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

ORDER 

BY: Jordan, Chairman; Riley and Beatty, Commissioners 

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

§ 801 et seq. (1994) ("Mine Act"). On September 20, 2000, the Commission received from 

Idaho Minerals a request to reopen a penalty assessment that had become a final order of the 

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

Labor does not oppose the motion for relief filed by Idaho Minerals. 

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

Secretary ofLabor"s proposed penalty assessment within which to notify the Secretary that it 

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

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

In its request, Idaho Minerals, which is represented by counsel, asserts that it never 

received a copy of the proposed penalty assessment. Mot. It explains that while it was in the 

process of selling its business and closing its operations, 1 it notified MSHA of its change of 

address. Idaho Minerals submits that the Department of Labor's Mine Safety and Health 

Administration ("MSHA") subsequently sent a second penalty assessment pertaining to a 

different violation to its former address. Although the second assessment was sent to Idaho 

1 Idaho Minerals states that it sold its assets~ terminated its workers, settled its accounts, 

and shut down more than one year ago. Mot. 

1301 
Minerals' old address, it somehow received the assessment, and then once again notified MSHA 

of its new address. Id. It notes that this second penalty assessment and the subject penalty 

assessment are consecutively numbered. Id. Idaho Minerals contends that during settlement of 

the second assessment, the Secretary's counsel and Idaho Minerals were unaware of the subject 

proposed assessment, and that it did not become aware of the assessment until it received a 

collection notice for the outstanding debt. Id. Idaho Minerals requests that the proceedings be 

"closed in a cost-efficient manner." Id. 

We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we 

possess jurisdiction to reopen uncontested assessments that have become final by operation of 

section 105(a). See, eg., Kenamerican Resources, Inc., 20 FMSHRC 199, 201 (March 1998); 

Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993). We have also observed that 

default is a harsh remedy and that, if the defaulting party can make a showing of adequate or 

good cause for the failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Preparation Servs., Inc., 17 FMSHRC 1529, 

1530 (Sept. 1995). In accordance with Rule 60(b)(l), we have previously afforded a party relief 

from a final order of the Commission on the basis of inadvertence or mistake. See National Lime 

& Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal·Co., 19 FMSHRC 1613, 1614-

15 (Oct. 1997); Stillwater Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross 

DeLamar Mining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996). 

1302 
On the bas~s of the present record, we are unable to e_valuate the merits of Idaho Minerals' 

position.2 While Idaho Minerals claims that it did not receive the proposed penalty assessment, 

the reasons for, and circumstances surrounding that alleged non--receipt are not clear from the 

record. In the interest of justice, we remand the matter for assignment to a judge to determine 

whether Idaho Minerals has met the criteria for relief under Rule 60(b ). See, e.g., Bauman 

Landscape, Inc., 22 FMSHRC 289, 290 (Mar. 2000) (remanding where operator claimed it did 

not receive penalty assessment and that the return receipt was not signed by him); Harvey 

Trucking, 21 FMSHRC 567, 569 (June 1999) (remanding to judge where operator claimed it did 

not receive proposed assessment which was sent to operator's address twice but returned to 

MSHA undelivered); Warrior Investment Co., 21FMSHRC971 , 973 (Sept. 1999) (remanding to 

judge where operator claimed it did not receive proposed assessment and it was not clear from 

the record the reason why delivery was unsuccessful). If the judge determines that such relief is 

appropriate, this case shall proceed pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. 

- ~"/' 

Robert H. Beatty, Jr., Com 1ssioner 

2 In view of the fact that the Secretary does not oppose Idaho Minerals' motion to reopen 

this matter for a hearing on the merits, Commission.er Verheggen concludes that the motion 

should be granted. 

1303 
Distribution 

Francis P. Yungwirth, Esq. 

85 Pine Street South 

Suite 106 

Timmins, Ontario P4N 2Kl 

Canada 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Chief Administrative Law Judge David Barbour 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1304 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TXIPORT COSTA PLANT, 

Respondent 

November 2, 2000 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 99-364-M 

A. C. No. 04-00599-05583 

Docket No. WEST 99-427-M 

A.C. No. 04-00599-05586 

Docket No. WEST 2000-50-M 

A.C. No. 04-00599-05588 

TXI Port Costa Plant 

Appearances: Jason Vorderstrasse, Esq., Office of the Solicitor, U.S. Department of Labor, Los 

Angeles, California and Alan Raznick, Esq., Office of the Solicitor, U.S. 

Department of Labor, San Francisco, California for the Petitioner; 

Steven R. Blackbum, Esq., Epstein, Becker & Green, San Francisco, California 

. for the Respondent 

Before: Judge Weisberger 

Statement of the Case 

These cases are before me based upon Petitions for Assessment of Civil Penalty filed by 

the Secretary of Labor ("Secretary'') seeking the imposition of civil penalties against TXI Port 

Costa Plant (''TXI") for allegedly violating various mandatory safety standards set forth in Title 

30 of the Code of Federal Regulations. Pursuant to notice, these cases were heard in Alameda, 

California, on July 25 and 26, 2000. On September 29, 2000, TXI filed proposed findings of fact 

and a brief. On October 2, 2000, the Secretary filed a post hearing brief. On October 23, 2000 

TXI filed a reply to the Secretary's post hearing brief. On October 26, 2000, the Secretary filed a 

reply brief. 

1305 
I. Docket No. WEST 99-364-M. 

Introduction. 

TXI's Port Costa Plant extracts shale from an adjoining quany, and processes it into kilnhardened aggregate material for use in concrete construction. The finished product, marble-like 

pellets, approximately Yi inch in diameter, is moved by a series of chutes and conveyors to one of 

six storage silos grouped together in a single structure covered by a flat roof. A variety of 

conveyors, screens, and related machinery are located on the roof. The height of the silo 

structure is approximately 80 feet. Access to the roof of the structure is via a grated metal 

stairway attached to the side of silo No. 2. The edges of the roof are guarded by three horizontal 

parallel rails. The upper rail is 40 inches above the ground. The other rails are referred to as the 

midrail, and toe, respectively. 

A miner working in the scalehouse at the foot of the silos is required to go to the roof of 

the structure twice each 12 hour shift, to check the contents of the silos through observation 

hatches located on the top of the silos. 

A. Citation No. 7972128. 

1. Violation of 30 C.F.R. §56.11001. 

On April 20, 1999, MSHA inspectors, John Pereza and Jerry Hulsey climbed to the top of 

the silo structure with several TXI representatives including Doug Evans, TXI's maintenance 

supervisor. The inspectors observed an accumulation of aggregate on the top of the No. 2 silo. 

There is some conflict in the record regarding the depth of the accumulated aggregate, but the 

weight of the evidence establishes that it was at least 6 inches deep. There was no specific 

designated P,ath for an employee to travel on top of the silos to check their contents. Nor was 

testimony adduced from any witness having personal knowledge of the path normally taken by 

miners assigned to check the top of the silos. However, the weight of the evidence clearly 

establishes that the materials that had accumulated on top of silo No. 2 were generally in an area 

where a miner regularly travels to inspect the contents of the silos. Indeed, both inspectors 

testified that they observed footprints in the area of the accumulated material, and their testimony 

was not impeached or contradicted in this regard. Further, Evans indicated that he has observed 

a miner walking on top of the silo. 

In essence, Pereza opined that the accumulated material constituted a stumbling or 

tripping hazard, and issued a citation alleging a violation of 30 C.F.R. Section 56.11001 which 

provides that"[ s ]afe means of access shall be provided and maintained to all working places". 

I find that the weight of the evidence establishes that on the day cited there was an 

accumulation of marble-size pieces of aggregate to a depth of at least 6 inches on the top of silo 

No. 2, that a miner regularly traversed the top of silo No. 2 two times in a 12 hour shift as part of 

1306 
his duties, and that the accumulated aggregate constituted some degree of a stumbling or tripping 

hazard. Accordingly, I find that it has been established that TXI was not in compliance with 

Section 56. 11001, supra. 

2. Significant and Substantial. 

A "significant and substantial" violation is described in section 104(d)(l) of the Mine Act 

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

effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814( d)(l). A violation is 

properly designated significant and substantial "if based upon the particular facts surrounding the 

violation there exists a reasonable likelihood that the hazard contributed to will result in an injury 

or illness of a reasonably serious nature." Cement Division, National Gypsum Co., 

3 FMSHRC 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained its 

interpretation of the term "significant and substantial" as follows: 

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

significant and substantial under National Gypsum the Secretary of Labor must 

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

safety hazard--that is, a measure of danger to 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. 

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

Commission stated further as follows: 

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

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

will result in an event in which there is an injury." U.S. Steel Mining Co., 

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

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

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

Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining 

Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

As set forth above, the record establishes a violation of a mandatory safety standards and 

the fact that the violative condition contributed to a stumbling or tripping hazard. The critical 

issues for resolution are the third and fourth elements of Mathies, i.e., the likelihood of a injury 

producing event, and the likelihood of this event producing an injury of a reasonably serious 

nature. 

1307 
It appears to be TXI's position that the evidence does not establish that there was any 

hazard of an employee falling off the silo as a result of the accumulated aggregate. In essence, 

TXI argues in this regard that a guardrail located along the edge of the silo, consisting of three 

parallel horizontal bars, the highest being 42 inches above the roof surface of the silo, protected 

an employee from falling off the silo, and landing on the ground 80 feet below. In this 

connection, the inspector testified that, at a point along the guardrail, the material had 

accumulated to a height of20 inches which would have, in essence, diminished the protection of 

the upper guardrail by effectively reducing its height. In arguing that this testimony should not 

be accepted, TXI refers to geometry calculations predicated upon a 38 degree angle of repose of 

the accumulated material, as testified to by Evans, and the sine of this angle which results in a 

conclusion that at a point 12 inches from the edge of the silo 1

, the height of the accumulated 

material could not have been more than 3.6 inches. However, I talce administrative notice of the 

fact that the sine of an angle, which is part of a right triangle, is the ratio between the side 

opposite the angle and the hypotenuse, (Random House Websters Unabridged Dictionary 

("Webster's") (2°d Ed., 1999) at 1784.) in this case an unknown distance. In contrast, the tangent 

of an angle in a right triangle, is the ratio between the side opposite the angle and the side 

adjacent to the angle. (See Webster's at 1941.) Hence, given an angle of 38 degrees, and a 

horizontal distance of 12 inches from between the edge of the silo, and applying the tangent of a 

38 degree angle, the vertical height of the accumulation would be at a maximum of 

approximately a little more than nine inches. As a result, the relative height of the bars of the 

guardrail, especially the upper rail, would be reduced thus diminishing their ability to protect an 

employee from falling off the roof of the silo. In addition, I note the existence of the following 

conditions: the round shape of the accumulated material; the location of a hose in the area, 

which created a further stumbling and tripping hazard; the presence of metal structural crossmembers in the area; and the fact that the area was traveled twice each 12 hour shift. I find that 

these conditions, in combination, establish that an injury producing event was reasonably likely 

to have occurred. Further, due to the presence of metal structural cross-members, the reduction 

in height of the protective guardrail, and the height of the subject silo, I find that it was 

reasonably likely that an injury resulting from the violation, would have been of a reasonably 

serious nature. I thus find that, within the context of this record, it has been established that the 

violation was significant and substantial. 

3. Unwarrantable Failure. 

The citation at issue alleges the violation herein was as a result of TX.I's unwarrantable 

failure. Unwarrantable failure has been defined by the Commission to constitute more than 

1

The slope of the material would be the hypotenuse of a right triangle, the horizontal distance of 

12 inches from the edge of the silo would be the side of the triangle adjacent to the angle ofrepose, and 

the vertical distance, to be determined, between the ground and the height of the material would be the 

side opposite that angle. 

1308 
ordinary negligence i.e., negligence that reaches the level of"aggregated conduct". Emery 

Mining Corp., 9 FMSHRC 1997, 2003-2004 (Dec. 1987). 

There is an absence of any direct evidence in the record as to how long the accumulated 

aggregate had been in existence up until the time it had been observed by the inspectors on April 

20, 1999. The only evidence of record relating to the existence of material in the cited area 

consist of notations found in the OPERATOR'S CHECKLIST BEGINNING EACH SHIFT for 

April 16, 17 and 18, which, under the listing "Material Build-up'', indicates "onto Silo# 2". (Co. 

Ex. 7) 

I note Evans' testimony that when he reviewed each of these reports early in the morning 

after the shift in which they were written, and noted that "walkways" were checked as "ok", and 

that they "were being worked on", he concluded that the reports indicated that whatever spillage 

had occurred was being addressed, and no hazard existed. It appears to be TXI's position in this 

regard that accordingly it can not be found that its management was not effectively acting to 

address to problem of material build-up. However, to the contrary, I find that at best, Evans' 

testimony relates merely to the condition of "walkways", and does not relate at all to the 

condition of materials on the top of silo No. 2, which is the only area in issue. 

I also note TXI's assertion that, in essence, its negligence herein should be mitigated by 

the fact that it had taken steps to prevent hazards associated with material build-up such as 

directives in its safety rules to clear walkways, and statements in its collective bargaining 

agreement requiring employees to report safety hazards. Also, TXI refers to safety meetings 

conducted in the months preceding April 20, 1999, wherein employees were instructed that 

"walkways must be cleaned or reported'', and that these topics also had been discussed in prior 

meetings in the preceding September and October. However, I accord more weight to the fact 

that a build-up of materials in the specific area in issue on April 16, 17 and 18, was noted in preshift reports which were transmitted to management. Additionally, I note that the accumulated 

materials were in an area generally traversed by a miner two times each shift, from April 16 to 

April 20, as part of normal operations. 

The only reliable evidence ofrecord relating to TXI's efforts to clean the accumulated 

material2 consists of notations in the STORAGE AND HANDLING LOG for April 16, 4:00 p.m. 

to 2:00 am, and April 18, 4:00 p.m., as follows: "(h]osed off material from top of silo - 2 when I 

had the chance" (Emphasis added.) (Co. Ex. 9, page 2, 5). Thus, although some effort may have 

been made to clean the accumulated violative materials, it is difficult to conclude, based upon 

this quantum of evidence that the efforts constituted more than a token effort, rather than an 

2

1 note Evans' testimony that at the time of the inspection the leadman stated that "'I had just 

finished cleaning that thing off Thursday night,' or Thursday." (Tr. 113). TXI did not call the leadman 

to testify, nor did it indicate that he was not available. Nor is there any other evidence of record 

specifically cooborating this hearsay statement of the leadman. Accordingly, I accorded no weight to 

Evan's hearsay testimony in this regard. 

1309 
intensive effort to make the area once again safe for access. 

Also, I have considered TXI's arguments that, in essence, inter alia, it should be found 

that there was no unwarrantable failure because of its effective abatement efforts. Such an 

argument is not relevant relating to the issue of whether the order in question was properly issued 

under Section 104(d)(l) of the Act. In this connection I note that Section 104(d)(l) citations and 

orders are to be issued when the violation is" ... caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety standards, ... ". Hence, what is relevant 

is TXI's conduct prior to the time of the alleged violation and not subsequent to the violation. As 

such, any evidence regarding abatement efforts are irrelevant regarding the level of its negligence 

prior to the cited violation. 

Therefore, for all the above reasons, I find, within the context of the record as evaluated 

above, that the violation herein resulted from TXI's negligence which was more than ordinary, 

and reached the level of aggregated conduct. Hence, I find that the violation was caused by 

TXI's unwarrantable failure. (See Emery, supra,) 

4. Penalty. 

I find that the gravity of the violation to be relatively serious essentially for the reason set 

forth above (I.) (A.) (2.) supra. Also, I find the level of negligence relatively high essentially for 

the reasons set forth above (I.) (A.) (3.) supra. Considering the remaining factor set forth in 

section 11 O(i) of the Act as stipulated by the parties, I find that a penalty of $2,500 is appropriate. 

B. Order No. 7972129. 

Pereza also issued Order No. 7972129 which alleges a violation of 30 C.F.R. Section 

56.18002(a). Section 56.18002(a) supra provides that "[a] competent person ... shall examine 

each working place at least once each shift for conditions which may adverse affect safety or 

health. The operator shall promptly initiate appropriate action to correct such conditions." 

(Emphasis added.) Hence, in order to prevail, the Secretary must establish either that TXI did 

not examine each working place at least once per shift, or that it did not promptly "initiate" 

action to correct the conditions which may adversely affect safety or health. 

It appears to be the Secretary's position, as set forth in the posthearing brief, that this 

order concerns itself not only with regard to the material as it existed at the time of the inspection 

" ... but also with regard to spilled material and lack of effective cleanup over the previous four 

months." In support ofthis argument the Secretary refers to Pereza's testimony th~t spillage on 

top on the silos" ... had been listed everyday for almost four months .... " (Tr. 40). The basis for 

this conclusion appears to be Pereza's testimony that "work place examinations" reports for four 

months beginning January 1, 1999, Pereza's testimony that stated indicated instances of material 

build-up on top of the silos, not just silo No. 2, and that these instances "far outnumbered" 

cleanup efforts. (Tr. 41 ). In response to a leading question on direct examination he agreed that 

1310 
these reports indicated the existence of a hazard. He was asked whether the reports listed the 

word hazard, and he stated that it was his opinion, i.e., that he had drawn a conclusion that the 

reports indicated a hazard. 

Clearly the Secretary has the burden of establishing all elements required for a violation. 

The Secretary did not proffer relevant pages of the reports which allegedly set forth notations of 

spillages and inadequate cleanup. The Secretary did not proffer any explanation for its failure to 

do so. The reports are the best evidence as their contents regarding the existence of spillages, 

their location, the number of instances of spillages on top of silos, and clean-up efforts. As such, 

I find that Pereza's testimony alone, to be of insufficient probative weight to establish existence 

of spillages on silos "on many occasions", and that these instances far outnumbered cleanup 

efforts. 

Further, regarding spillages on the top of silo No. 2 on April 16, 17 and 18, TXI's records 

indicate that a examinations had been performed in the areas in question and build up of 

materials were noted (Co. Ex. 7). Thus, in order to establish a violation herein, the Secretary 

must establish that TXI was not in compliance with the second sentence of Section 56.18002(a) 

supra, which requires that "[t]he operator shall promptly initiate appropriate action to correct 

such conditions." (Emphasis added.) 

It appears to be the Secretary's position that, in essence, this sentence was violated as the 

unsafe conditions were not corrected, and that there is "no indication in Respondent's records of 

any time being taken to clean off the material on top of silos." I do not find much merit in the 

Secretary's position. The clear wording of the second sentence of Section 56.18002( a), supra, 

does not require the Secretary to establish either the adverse condition was not corrected, or that 

time had been taken to clean material from the top of the silos. Rather, it must be established 

that TXI did not initiate cleanup action to correct the spillage of material. In this connection, the 

only evidenc;e of record relating to TXI' s actions or lack of action, regarding spillages that had 

occurred on April 16, 17 and 18, consists of statements in entries in the Storage and Handling 

l&g for April 16,.and 18, as follows: "[h]osed off material from top ofsilo-2 when I had the 

chance" (Emphasis added). (Co. Ex. 7) These statements in TXI's reports indicate that it had 

initiated action to correct the adverse unsafe accumulation of material. Accordingly, for the 

above reasons, I conclude that the Secretary has failed to establish a violation of Section 

56.18002(a) supra. 

I. Docket No. WEST 99-427-M. 

A. Order No. 7972161. 

I. Violation of30 C.F.R. § 56.12040 

On June 19, 1999, Pereza conducted another inspection of the site at issue. He examined 

a 480v. breaker box that was approximately 82 inches high, 70 inches, wide and 12 inches deep. 

1311 
Two metal doors enclosed the interior of the box, and had to b~ opened to gain access to the 

interior. The lower right-hand comer of the box also contained a transformer, 18 to 20 inches 

wide and approximately 20 inches high. The surface area of the exposed wires on the right side 

of the box was approximately one to two square feet. The breaker box also contained energized 

wire connections, and an energized heat-sink on the left side of the box. 

A circuit breaker for a 480v. Steadman crusher was also located in the upper right hand 

comer of the box. In normal operations, the breaker is thrown several times a week to shut off 

electirc power to the cursher to allow the cursher to be repaired or maintained. 

The breaker box was designed to be used with a handle, located on the outside of the box, 

which allowed the circuit breaker to be thrown without opening the box. This handle had not 

been in place for approximately 10 years. Hence, in normal operations, it was the practice of TXJ 

employees to throw the circuit for the crusher by opening the right-hand door of the breaker box 

and using a "short section" of a 2 x 4 piece of lumber to throw the breaker. 

Pereza issued an order alleging a violation of 30 C.F.R. Section 56.12040 which provides 

as follows: "[o]perating controls shall be installed so that they can be operated without danger of 

contact with energized conductors." 

In essence, it is TXI's position that the breaker box is not an "operating control", and 

hence, it was improperly cited. TXI relies on the fact that the panel of buttons and switches used 

to operate the crusher, were located not in the box, but were elsewhere on the site. Thus, TXI 

argues that accordingly the breaker box is not the operating control for the crusher. TXI does not 

cite any authority, regulatory history, or commonly accepted definition, that supports its 

conclusion that a breaker used to de-energize a piece of equipment is not an "operating control". 

It appears to be TXI's position that the breaker box should not be considered an operating control 

as it is access.ed only infrequently to de-energize the crusher to perform repairs or maintenance 

work. No authorities are cited which would mandate such a narrow construction to be accorded 

to the term "operating controls". 

In normal operations the breaker at issue is thrown at least once a week to cut off power 

to the crusher in order to perform repair or maintenance work. It follows that, upon completion 

of the repair or maintenance work, the breaker would, of necessity, be reset allowing electricity to 

resume to flow to the crusher which would directly enable the crusher to operate. Indeed, the 

crusher could not operate if the breaker would not be reset to supply electricity. Since throwing 

the breaker stops the operation of the crusher, and resetting it allows the crusher to operate, it 

certainly controls its operation and, accordingly, is within the perview of the term "operating 

controls" (see, Webster's at 1357). 

The only way the breaker could be thrown and reset required a miner to open the exterior 

doors of the box. According to Pereza, the miner would thereby be exposed to an approximately 

I Yi square foot area of energized 480v. conductors, thus subjecting the miner to an injury by 

1312 
virtue of inadvertent contact with these energized conductors. This testimony by Pereza has not 

been impeached or contradicted, and I therefore accept it. I find that the manner in which the box 

was installed, with a missing lever on the outside of the box,required the interior breaker to be 

operated in a situation were there was danger of contact with energized conductors. I thus find 

that it has been established the TXI did violate Section 56.12040 supra. 

2. Significant and Substantial. 

According to Pereza, in normal operations, as a result of the violative condition, i.e. the 

lack of the lever outside the breaker box, once a week a miner is required to push or pull a 

tension lever on the breaker at issue. Pereza testified that, in performing these operations, the 

miner could lose his balance and slip, and be exposed to a significant area of energized 480v. 

1200 amp components, which could result in possible fatal electric shock from contact with the 

energized components. Since these facts as testified to be Pereza were not impeached or 

contradicted, I accept them. Within this context I find that it has been established that the 

violation was significant and substantial, (see Mathies supra.) 

3. Unwarrantable Failure. 

In its brief TXI argues that, in essence, the violation was not unwarrantable since its 

managers were not aware that the conditions constituted a violation of Section 56.12040, supra, 

as it had not been cited for this condition in the past. However, no testimony was adduced from 

any ofTXI's managers to the affect that, a reasonably prudent person familiar with the industry 

would have understood that the breaker box at issue was not to be considered an operating 

control, or that its managers did not consider the box to be an operating control, or that it relied 

on MSHA's not having previously cited the box in the past as indicating that the box was in 

compliance with Section 56.12040, supra, as it was not an operating control. In the absence of 

such proof, I. do not accept TXI's arguments in this regard. 

Also, it appears to be the position ofTXI, that its negligence should be mitigated by the 

fact that, as testified to by Evans, there have been no injuries reported arising from the condition 

at issue subsequent to TXI's assuming ownership of the site in 1996. TXI further asserts that 

MSHA has repeatedly inspected this area, and until the issuance of the order at issue, had not 

previously cited the absence of .an outside handle on the breaker box. On the other hand, the 

hazards involved in opening the box door and throwing the break.er switch with a piece of wood, 

had existed for 10 years. Management was aware that miners were throwing the breaker in this 

fashion and had, according to Pereza's uncontradicted testimony, so instructed its employees. 

Within this framework I find that it has been established that the violation herein was as a result 

ofTXI's unwarrantable failure. (See, Emery supra) 

1313 
4. Penalty 

Inasmuch as the violation could have resulted in a fatality, the level of gravity was 

relatively high. Further, for the reasons set forth above, the level of negligence was more than 

ordinary and reached the level of aggravate conduct. Considering the further factors set forth in 

Section 1 IO(i) of the Act I find that a penalty of$2,500.00 is appropriate. 

B. Order No. 7972162. 

1. Violation of C.F.R. § 56.12040. supra 

On June 10, 1999, Pereza also inspected the Westinghouse Motor Control Center 

("MCC"), which houses circuit breakers for motors and other equipment at the plant. The circuit 

breakers are contained inside cabinet doors that were designed to be used with a rod that did not 

require the door to be opened in order to throw the circuit breaker. Three cabinet doors, each 

enclosing a separate breaker, did not have any rods. Accordingly, these doors would have to be 

opened in order to throw the circuit breaker inside. A written statement on the outside of each 

door stated that the door had to be opened to activate the breaker. Hence, once a week, a miner 

would have to reach inside the cabinet to throw the circuit breaker in order to repair or maintain 

certain electrical equipment. Various energized wires and a circuit breaker were located inside 

each cabinet. There were four square inches of surface area of exposed energized 480v. 

conductors inside each cabinet. Pereza considered the breaker boxes to be "operating controls'', 

and issued an order alleging a violation of Section 56.12040 supra. 

Pereza opined that the boxes were operating controls. In contrast, no one testified on 

behalf ofTXI regarding any definition of"operating controls" and whether breakers were within 

the scope of that definition as commonly understood in the industry. Nor did it present any 

evidence on this point. Since circuit breakers are thrown to cut off power to equipment to repair 

or maintain them, and then are reset, which supplies electricity to this equipment, I conclude, for 

the reasons discussed above ((II.) (B.) (A.), supra,) that they are within the scope of "operating 

controls". 

Further, due to the presence of energized 480v. wires inside the box, which has to be 

opened to throw or reset a breaker due to the violative condition herein, I find that miners 

performing this task would be exposed to the possibility of electric shock due to inadvertent 

contact with the energized conductors inside the box. Accordingly, I find that due to the lack of a 

rod on the outside of the cabinet doors at issue, the circuit breakers inside these boxes could only 

have been operated by exposing miners to danger of contact with energized conductors located 

inside the box. Accordingly I find that TXI did violate Section 56.12040 supra. 

1314 
2. Unwarrantable Failure. 

Because it was obvious that the boxes at issue no longer had handles on the outside, and 

that for many years instructions on the outside of the boxes informed employees to open the door 

in order to throw the breakers, I conclude that it has been established that the violation resulted 

from TXI's unwarrantable failure (see, Emery supra)3. 

3. .Penalty 

I find that the gravity of this violation was relatively high as it could have resulted in a 

serious injury resulting from electric shock. Also, I find, as set forth above, that the negligence 

was relatively high. Taking into account the further factors set forth in Section 11 O(i) of the Act 

as stipulated to parties, I find that the proposed penalty of $2,000.00 is appropriate. 

III. Docket No. WEST 2000-50. 

During the course of the hearing on July 26, 2000, regarding the citations at issue in 

Docket No. WEST 2000-50, the parties reached a settlement, and made a joint motion to approve 

the settlement, and the motion was granted at the hearing. 

The parties proposed to have the total penalty initially sought by the Secretary for the 

violations alleged in these citations to be reduced from $397.00 to $228.00. I reviewed the 

record regarding these citations and the evidence presented at the hearing, and I found the 

proposed settlement to be appropriate under the terms of the Act, and I granted the motion. 

3

The order at issue was issued under Section 104( d)(2) of the Act, which requires the existence 

of a violation that resulted from the operator's unwarrantable failure, but not necessarily a significant and 

substantial violation. Thus, I reject as irrelevant TXl's argument that the order at issue should be vacated 

because Section 104( d)( 1) sets forth that an order can properly be designated as an unwarrantable failure 

only if the inspector has also concluded that the violation was significant and substantial, whereas the 

order at bar does not allege the violation at issue to be significant and substantial. However, such an 

argument does not pertain to the order at issue which was issued under Section 104( d)(2) of the Act. 

Section 104( d)(2) pertains to a withdrawal order that was issued pursuant to Section 104(d)( 1) which 

does not contain any requirement that the order be predi~ated upon a violation that is significant and 

substantial. 

1315 
ORDER 

It is ORDERED that, within 30 days of this decision, TXI shall pay a total civil penalty 

of $7,228.00. It is further ORDERED that Order No. 7972129 be Dismissed. 

~~ Administrative Law Judge 

Distribution: (Certified Mail) 

Jason Vorderstrasse, Esq., Office of the Solicitor, U.S. Department of Labor, 350 South 

Figueroa Street, Suite 370, Los Angeles, CA 90071-1202 

Alan M. Raznick, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street 

Suite 1110, San Francisco, CA 94105 

Steven R. Blackbum, Esq., Epstein, Becker & Green, P.C., Two Embarcadero Center, Suite 1650 

San Francisco, CA 94111 

/set 

1316 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., Room 6003 

W ASlllNGTON, D. C. 20006-3867 

Telephone No.: 202-653-5454 

Telecopier No.: 202-653-5030 

WHITE CONSTRUCTION CO. INC., 

Contestant 

V. 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

November 3, 2000 

1317 

CONTEST PROCEEDINGS 

Docket No. SE 2000-228-RM 

A. C. No. 7759166;8/9/2000 

Docket No. SE 2000-229-RM 

A.C. No. 7759167; 8/9/2000 

Docket No. SE 2000-230-RM 

A. C. No. 7759168;8/9/2000 

Docket No. SE 2000-231-RM 

A. C. No. 7759169;8/9/2000 

Docket No. SE 2000-232-RM 

A. C. No. 7759170;8/9/2000 

Docket No. SE 2000-233-RM 

A. C. No. 7759171;8/9/2000 

Docket No. SE 2000-234-RM 

A. C. No. 7759172;8/9/2000 

Docket No. SE 2000-235-RM 

A. C. No. 7759173;8/9/2000 

Docket No. SE 2000-236-RM 

A. C. No. 7759174; 8/9/2000 

Docket No. SE 2000-237-RM 

A. C. No. 7759175;8/9/2000 

Docket No. SE 2000-238-RM 

A. C. No. 7759176;8/9/2000 

Docket No. SE 2000-239-RM 

A. C. No. 7759177; 8/9/2000 

Docket No. SE 2000-240-RM 

A. C. No. 7759178; 8/9/2000 

Docket No. SE 2000-241-RM 

A. C. No. 7759187;8/9/2000 
ORDER OF DISMISSAL 

Before: Judge Barbour 

On September 8, 2000, counsel for the operator filed with the Commission notices of 

contest for fourteen citations that were issued against the operator on August 9, 2000 by an 

MSHA inspector. On September 11 , 2000, I issued a letter acknowledging receipt of the notices 

of contest and advising the parties the docket numbers assigned to these matters. The September 

I 1 acknowledgment letter was mailed to counsel for the operator and the Department of Labor's 

Solicitor's office in Arlington Virginia who represents MSHA. 

On October I 0, 2000, the Solicitor filed a motion to dismiss the notices of contest and 

memorandum in support of the motion. The Solicitor argues that the operator failed to notify the 

Secretary that it was contesting the citations as required by the Mine Act and Commission 

procedural rules. 30 U.S.C. § 815(d); 29 C.F.R. § 2700.20(b). According to the Solicitor, the 

Secretary first became aware of the contests when the Solicitor's Arlington office received the 

September 11 acknowledgment letter on September 12, 2000, which was forwarded to the 

Atlanta Regional office on September 18, 2000. On September 25, 2000, the Solicitor contacted 

the Commission and a copy of the notice of contest was faxed to him on that day. The Solicitor 

asserts that the Commission and the Secretary are two distinct entities under the Act and that 

service on one is not service on the other. The Solicitor also notes that in Diahlo Coal Co., 15 

FMSHRC 1605 (August 1993), I dismissed a notice of contest that was three days late because it 

depri ved the Commission of jurisdiction. 

On October 16, 2000, counsel for the operator fi led a response to the Solicitor's motion to 

dismiss. Counsel asserts that he timely filed the notices with the Commission which was 

confirmed by the September 11 acknowledgment letter. In addition, counsel claims that White 

Construction· filed its notice o f contest with the Commission based on oral advice it had received 

from the Commission. Counsel alleges that White Construction was only instructed to fi le its 

notices with the Commission and to attach copies o f all fourteen violations which it did. Counsel 

also distinguishes Diablo Coal noting that the operator in that case served neither the Secretary 

nor the Commission with its notice within the requisite thirty days. By contrast, the notices in 

these cases were timely fil ed with the Commission. Counsel asserts that this case is more like 

Rivco Dredging Corp., I 0 FM SH RC 624 ( 1988), where the Commission held that " innocent 

procedural missteps alone should not operate to deny a party the opportunity to present its 

objections to citations or orders." 

Section 105(d) o f the Mine Act, 30 U.S.C. § 815(d), provides in relevant part: 

If, within 30 days of receipt thereof, an operator ... notifies the Secretary that he 

intends to contest the issuance ... of an order issued under section I 04(a), or 

citation ... the Secretary shall immediately advise the Commission of such 

notification, and the Commission shall afford an opportunity for a hearing. 

13 18 
Commission Rule 20(b) carries over the requirements of section 105( d) and states: 

Contests filed by an operator ... shall be filed with the Secretary at the appropriate 

Regional Solicitor's Office or at the Solicitor's Office, Mine Safety and Health 

Division, Arlington Virginia, within 30 days of receipt by the operator of the 

contested citation, order, or modification. 

Commission Rule 20(c), 29 C.F.R. § 2700.20(c), requires the Secretary to notify the Commission 

immediately when a notice of contest has been filed. 

A long line of cases dating back to the Interior Board of Mine Operation Appeals have 

held the late filing of notices of contest of citations is not permissible under the Mine Act and 

under its predecessor the Federal Coal Mine Health and Safety Act of 1969. Consolidation Coal 

Company, 1MSHC1029 (1972); Old Ben Coal Co., 1MSHC1330 (1975); Alexander Brothers, 

1 MSHC 1760 (1979); Island Creek Coal Co. v. Mine Workers, 1 FMSHRC 989 (Aug 1979); 

Amax Chemical Corp., 4 FMSHRC 1161(June1982); Industrial Resources. Inc., 7 FMSHRC 

416 (March 1985); Allentown Cement Company. Inc., 8 FMSHRC 1513(October1986); Rivco 

Dredging Corporation, 10 FMSHRC 889 (July 1988); Big Hom Calcium, 12 FMSHRC 463 

(March 1990); Prestige Coal Co., 13 FMSHRC 93 (January 1991); Costain Coal Inc., 14 

FMSHRC 1388 (August 1992); Diablo Coal Company, 15 FMSHRC 1605 (August 1993); C and 

S Coal Company, 16 FMSHRC 633 (March 1994); Asarco. Incorporated, 16 FMSHRC 1328 

(June 1994); See also, ICI Explosives USA. Inc., 16 FMSHRC 1794 (August 1994). However, 

late filing of a contest of a citation or order has been allowed where the Secretary's own conduct 

is responsible for the operator's delay in filing a notice of contest. Blue Diamond Coal Company, 

11 FMSHRC 2629 (Dec. 1989), See also, Consolidation Coal Co., 19 FMSHRC 816 (April 

1997); Freeman Coal Mining Corporation, l MSHC 1001 (1970). 

The Mine Act and Commission rules are explicit in requiring the Secretary to be notified 

of the operator's intent to contest within 30 days of the issuance of a citation. It is clear in the 

instant matters that counsel did not notify the Secretary as required by the Mine Act and 

Commission Rules. The notices were sent to the Commission and not to the Secretary. 

Notification of the Secretary was only achieved when the September 11 acknowledgment letter 

was mailed which was more than 30 days after the citations were issued. Therefore, the contests 

were untimely and it must be determined whether these cases should be dismissed in accordance 

with established precedent or whether the operator's failure to timely contest falls within the 

exception as set forth above where actions of the Secretary cause an operator to be late. 

Counsel does not allege that the Secretary engaged in conduct that resulted in the delay, 

rather he alleges the actions of the Commission that were to blame. Counsel claims that the 

operator was only instructed to file the notices with the Commission and to attach copies of the 

violations. Counsel does not state who was contacted at the Commission with respect to the 

filing of the contests or the qu.estions asked that individual, but simply identifies one alleged 

1319 
statement made by a Commission employee regarding the requirements for filing a contest with 

the Commission. The Commission has no record of receiving a telephone call concerning these 

matters. 

Moreover, a review of the notices of contest shows that counsel was unaware of the 

independent role of the Commission. Counsel erroneously addressed his contests to the ''United 

States Department of Labor, Federal Mine Safety and Health Review Commission." I can only 

assume he did so because he did not familiarize himself with the Mine Act or the rules of the 

Commission prior to contacting the Commission or making his filing. Had he consulted the rules 

or the Act it should have been evident that the Secretary and the Commission are independent 

entities and that he was required to file his contests in a timely fashion with the Secretary. 

Because counsel has failed to demonstrate that misconduct by the Commission occurred in these 

matters and because counsel has failed to justify why he was unaware of the Commission's rules 

and the Mine Act's requirements, I find that sufficient reasons do not exist to permit these 

untimely notices of contest to proceed and therefore these matters must be dismissed. 

In light of the foregoing, the Solicitor's motion to dismiss these case is GR..\NTED and it 

is ORDERED that these cases are DISMISSED. Counsel for the operator should note, 

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

challenging in a subsequent civil penalty proceeding the violation alleged in the citation and/or 

any of the findings associated with the alleged violation. 

. , ·d,·L ~;,:7 // ._ - (/..., l r.,,. /,,.,,_.,e ..... c..-------

David F. arbour 

Chief Administrative Law Judge 

Distribution: 

Michael K. Grogan, Esq., Coffman, Coleman, Andrews & Grogan, 2065 Herschel Street, 

Jacksonville, FL 32204 

Sheila K. Cronan, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., 

Suite 400, Arlington, VA 22203 

/wd 

1320 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., Room 6003 

WASHINGTON, D. C. 20006-3867 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

SHELLY MATERIALS INC -

OSTRANDER PLANT, 

Respondent 

Telephone No.: 202-653-5454 

Telecopier No.: 202-653-5030 

November 7, 2000 

CNIL PENAL TY PROCEEDING 

Docket No. LAKE 2000-64-M 

A. C. No. 33-00168-05520 

Mine: Shelly Materials Inc Ostrander Plant 

DECISION APPROVING SETTLEMENT 

Before: Judge Barbour 

This case is before me upon a petition for assessment of a civil penalty under section 

105( d) of the Federal Mine Safety and Health Act of 1977. The Solicitor has filed a motion to 

approve settlement. A reduction in the penalty from $7,000.00 to $4,300.00 is proposed. I have 

considered the representations and documentation submitted in this case, and I conclude that the 

proffered settlement is appropriate under the criteria set forth in section 1 lO(i) of the Act 

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

ORDERED that the operator pay a penalty of$4,300.00 within 30 days of this order. 

j)vDavid 

Chief 

1~1{~,/

Administrative 

Jfa;b~ur ~ 

Law Judge 

Distribution: 

Maya K. Ewing, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 8th 

Floor, Chicago, IL 60604 

'"-, Robert B. Mill, Vice President, Shelly Materials, Inc., P. 0. Box 266, Thornville, OH 43076 

/wd 

1321 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

November 17, 2000 

BRIAN T. CHRISTIE, DISCRIMINATION PROCEEDING 

Complainant 

v. 

Docket No. PENN 2000-23-D 

PITT CD 99-05 

MOUNTAIN SPRING COAL COMPANY, 

Respondent 

No. 1 Mine 

Mine ID 36-08725 

Appearances: 

Before: 

DECISION 

Brian T. Christie, Worthington, Pennsylvania, prose; 

Julia K. Shreve, Esq., Jackson & Kelly, P.L.L.C., Charleston, 

West Virginia, on behalf of Respondent. 

Judge Melick 

This case is before me upon the Complaint by Brian T. Christie, pursuant to Section 

105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., the "Act," 

alleging that he was discharged by the Mountain Spring Coal Company (Mountain Spring) on 

August 2, 1999, presumably in violation of Section 105(c)(l) of the Act. 1 More particularly Mr. 

Section 105( c )(1) of the Act provides as follows: 

No person shall discharge or in any manner discriminate against or cause to be discharged 

or cause discrimination against or otherwise interfere with the exercise of the statutory rights of 

any miner, representative of miners or applicant for employment in any coal or other mine 

subject to this Act because such !Jliner, representative of miners or applicant for employment has 

filed or made a complaint under or related to this Act, including a complaint notifying the 

operator or the operator's agent, or the representative of the miners at the coal or other mine of an 

alleged danger or safety or health violation in a coal or other mine, or because such miner, 

representative of miners or applicant for employment is the subject of medical evaluations and 

potential transfer under a standard published pursuant to section 10 I or because such 

miner, representative of miners or applicant for employment has instituted or caused to be 

instituted any proceeding under or related to this Act or has testified or is about to testify in any 

such proceeding, or because of the exercise by such miner, representative of miners or applicant 

for employment on behalf of himself or others of any statutory right afforded by the Act. 

1322 
Christie alleges in his initial complaint filed August 3, 1999, with the Department of Labor's 

Mine Safety and Health Administration (MSHA) as follows: 2

· 

1) Superintendent trying to force me to take vacation for injury instead of 

compensation. 3 

2) Superintendent asked me ifl wanted to fireboss again on 7-30-99 and 

wanted an answer on 7-31-99. On 7-31-99 I told the face boss Walter Delt 

I did not wish to fireboss. On 8-2-99 at approximately 6:30 a.m. Mr. 

Saddler told me I was suspended with intent to Discharge, because you are 

no good to me if you wont fireboss. I don't need you. 

In a statement to MSHA special investigator John Savine, on August 12, 1999, Mr. 

Christie stated that "I believe I would not have been fired if I would have agreed to fireboss" 

and at hearings testified that he was discharged because he refused to :fireboss on July 30, 1999. 

These proce~dings are limited to consideration of those allegations. 

Mr. Christie seeks reinstatement and damages, including back pay and reimbursement of 

medical expenses. However, since he claims that because of his limited functional capacities 

from a pre-existing medical condition he must be exempted, in any reinstatement order, from 

working as a fire boss and from operating any equipment such as a roof bolter or power scoop 

which could aggravate the pain in ms neck. Indeed, it appears that the only job for which Mr. 

Christie would accept reinstatement would be that of bridge operator. 

This Commission has long held that a miner seeking to establish a prima facie case of 

discrimination under Section 105(c) of the Act bears the burden of production and proof that he 

engaged in protected activity and that the adverse action complained of was motivated in any part 

by that activity. Secretary on behalf of Pasula v. Consolidated Coal Co., 2 FMSHRC 2786, 

2797-2800 (1980), rev'd on grounds, sub nom. Consolidated Coal Co. v. Marshall, 663 F.2d 

1211 (3rd Cir. 1981); and Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 817-18 ( 1981 ). The operator may rebut the prim a facie case by showing either that no 

protected activity occurred or that the adverse action was in no part motivated by the protected 

activity. If an operator cannot rebut the prima facie case in this manner, it may nevertheless 

defend affirmatively by proving that it would have taken the adverse action in any event on the 

basis of the miner's unprotected activity alone. Pasula, supra; Robinette, supra. See also 

2 In a letter dated October 6, 1999, MSHA concluded that a violation of Section 

105( c) of the Act had not occurred. Mr. Christie thereafter requested relief from tills 

Commission. 

3 In his subsequent statement to MSHA investigator John Savine on August 12, 

1999, Christie acknowledged that he had by that time received all the Workers' Compensation to 

which he was entitled (Exh. C-3, p.3). 

1323 
Eastern Assoc., Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (41

h Cir. 1987); Donovan v. Stafford 

Construction Co., 732 F.2d 194, 195-196 (61

h Cir. 1983) (specifically approving the 

Commission's Pasula-Robinette test). Cf. NLRB v. Transportation Management Corp., 462 U.S. 

393, 397-413 (1983) (approving nearly identical test under National Labor Relations Act.) 

A miner's refusal to perform work is protected under the Act, if it is based upon a 

reasonable, good faith belief that the work involves a hazard. Pasula, supra, 2 FMSHRC at 

2789-96; Robinette, supra, 3 FMSHRC at 807-12; Secretary v. Metric Constructors, Inc., 

6 FMSHRC 226, 229-31 (February 1984), aff'd sub nom. Brock v. Metric Constructors, Inc., 

766 F.2d 469, 472-73 ( l l 1h Cir. 1985); see also Simpson v. FMSHRC, 842 F.2d 453, 458 (D.C. 

Cir. 1988); Consolidation Coal Co. v. FMSHRC, 795 F.2d 364, 366 (41

h Cir. 1986). It is further 

required that "where reasonably possible, a miner refusing work should ordinarily communicate 

... to some representative of the operator his belief in the safety or health hazard at issue." 

Secretary on behalf of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 133 (February 

1982); see also Simpson v. FMSHRC, supra, 842 F.2d at 459; Secretary on behalf of Hogan and 

Ventura v. Emerald Mines Corp., 8 FMSHRC 1066, 1074 (July 1986), aff'd mem., 829 F.2d 31 

(3rd Cir. 1987) (table cite). 

Christie had been off from work and receiving workers' compensation from April 21 

through May 10, 1999, because of a knee injury and again from June 25 through July 29, 1999, 

because he reinjured that knee. According to Christie he reported back to work on July 30, 1999, 

to "full duty" upon the doctor's release without any restrictions (Exh. C-3, pp.2-3). Christie 

testified that mine superintendent Seibert Saddler had asked him on July 301

h to perform fireboss 

duties and that he told him that he did not want to do it. He explained at hearing that performing 

the duties of a fire boss, traveling in a jeep in 36 to 41 inch-height coal and necessitating the 

twisting and wrenching of his neck, was painful. According to Christie, Saddler knew the history 

of his neck injury and pain based on his pre-employment physical exam and should have 

accepted him with his work limitations.4 Christie also admitted however that even ifhe was 

reinstated be would not be able to perform the duties of a fireboss nor could he operate a power 

scoop or roof bolter .because of his neck pain. Indeed, he testified that the only work he could 

perform at the mine was that of bridge operator. He maintains that he is unable to ride into the 

mine in a sitting-up position and even riding in a jeep "would be a problem." 

The narrow issue presented herein is whether Mr. Christie's refusal to perform duties as a 

fire boss was a protected work refusal. 5 Even assuming, arguendo, that Christie entertained a 

4 The pre-employment exam report shows however that Christie had "no physical 

or mental limitations related to work as an underground miner. (Exh. C-1 ). 

5 At hearings Christie also appeared to allege for the first time that after he told 

Saddler that he did not want to fireboss, Saddler offered to have him perform only partial fireboss 

inspections but then sign the fireboss books as if he had completed the inspections - - an 

unlawful procedure. This allegation had never previously been made either in his complaint filed 

1324 
good faith and reasonable belief that to perform the duties of ;fire bossing would have been 

unsafe because of his pre-existing neck condition, for a work refusal to be protected, the miner 

must first communicate his safety concerns to some representative of the operator. Secretary on 

behalf of Dunmire, 4 FMSHRC at 133. In this regard, the Commission has held that "proper 

communication of a perceived hazard is an integral component of a protected work refusal and 

responsibility for the communication of a belief in a hazard underlying the work refusal lies with 

the miner." Conatser, 11 FMSHRC at 17, citing Dillard Smith v. Reco Inc., 9 FMSHRC 992 at 

995 - 96 (June 1987). ·The miner's failure to communicate his safety concern denies the operator 

an opportunity to address the perceived danger and, if permitted, would have the effect of 

requiring the Commission to presume that the operator would have done nothing to address the 

miner's concern. Thus, a failure to meet the communication requirement may strip a work 

refusal of its protection under the Act. 

In this case, Mr. Christie, in his statement to investigator Savine and at hearings, 

acknowledged that he did not communicate that his refusal to perform the duties of a fire boss 

was because of his pre-existing neck injury. Christie testified only that he thought Saddler knew 

of the history ofhis neck injury and the pain associated with that injury based on his preemployment physical exam and presumably should therefore have known the reason for his 

refusal to fire boss. However, as previously noted neither his preemployment physical nor the 

doctor's release on July 29, 1999, placed any restrictions on Christie's return to work as an 

underground miner. Indeed, it is uncontradicted that Christie was released by a physician to 

"unrestricted duty" upon his return to work only a few days earlier (Respondent's Exh. No. 2) 

and that Christie himself admitted in his August 12, 1999, statement that he had been released by 

the doctor on July 29, 1999, to full duty without restrictions (Exh. C-3). In addition, Saddler 

testified credibly that when he asked Christie to do the firebossing Christie never mentioned any 

neck injury or pain or anything about putting his papers in jeopardy. 

Under the circumstances and even assuming, arguendo, that Christie retained a good faith 

and reasonable belief that to work with his neck pain was a safety hazard, he cannot prevail under 

a "work refusal" theory because of his failure to communicate that as a reason for his refusing to 

perform the duties of a fire boss. In any event, I do not find that the work refusal in this case 

based on the impairment claimed in this case is protected by the Act. Here, Christie's alleged 

neck pain, caused by a non-work related vehicular accident several years before he even began 

employment with Respondent,-is an idiosyncratic physical impairment not involving inherently 

unsafe working conditions and practices of the mine operator. See, e.q., Paula Price v. Monterey 

Coal Company, 12 FMSHRC 1505 at 1519-1520 (August 1990), (concurring opinion); Sam 

Collette v. Boart Longyear Co., 17 FMSHRC 1121, 1125-26 (July 1995) (ALJ) and Perry v. 

Phelps Dodge Morenci, Inc., 18 FMSHRC 643 (April 1996) (ALJ). This case does not present 

herein or in the lengthy and thorough interview by the MSHA investigator. Saddler also denied 

the allegation in his testimony at hearings. Under the circumstances, I do not find this new 

allegation to be credible. 

1325 
the "appropriate circumstances" mentioned in Bjes v. Consolidation Coal Co., 6 FMSHRC 1411, 

141 7 (June 1984 ), in which a miner may refuse to work on the basis of a perceived hazard arising 

from his own physical condition. 

Christie also claimed that he refused to perform fire boss duties because "Saddler would 

not run the mine the way it was supposed to be run" (Tr. 126). He admits however that he did 

not communicate this reason to Saddler. In light of this admission Christie likewise could not 

prevail under a "work refusal" theory. Conatser, l 7 FMSHRC at 17, Dillard Smith, 9 FMSHRC 

at 995-96. Since Christie admits moreover that he could not in any event perform the duties of a 

fire boss because of his neck pain, this claim could not provide a good faith and reasonable belief 

basis for a work refusal. 

Under the circumstances, Mr. Christie has failed to sustain his burden of proving that he 

was discharged in violation of Section 105( c) of the Act and accordingly his complaint must be 

dismissed. 

ORDER 

Discrimination Complaint Docket No. PENN 2000-23-D, is hereby dismissed. 

~\ ' i:JaryM lick \ 

Distribution: .(By Certified Mail) 

Mr. Brian T. Christie, RD #1, Box 388, Worthington, PA 16262 

David Hardy, Esq., Julia Shreve, Esq., Jackson & Kelly, PLLC, 1600 Laidley Tower, P.O. Box 

553, Charleston, WV 25322 

\mca 

1326 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

November 22, 2000 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of Terry McGill, 

Complainant 

v. 

U.S. STEEL MINING COMPANY, LLC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. SE 2000-39-D· 

BIR1v1 CD 99-04 

Oak Grove Mine 

Mine ID 01-00851 

DECISION 

Appearances: William Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, 

Birmingham, AL, for the Complainant; 

Anthony Jeselnik, Esq., U.S. Steel Mining Company, Pittsburgh, PA, for the 

Respondent. 

Before: Judge Weisberger 

This case is before me based on a Complaint filed by the Secretary of Labor ("Secretary") 

alleging that U.S. Steel Mining Company ("U.S. Steel") discriminated against Terry McGilJ in 

violation otSec;:tion 105 of the Federal Mine Safety and Health Act of 1977 ("the Act"). A 

hearing on this matter was held in Hoover, Alabama, on August 23, 2000. On October 31, 2000, 

the Secretary fi led findings of fact and a post trial brief. On November 1, 2000, U.S. Steel fi led 

proposed findings of fact and post hearing legal argument. 1 On November 15, 2000, U.S. Steel 

filed a reply brief. 

1

0n October 16, 2000, the Secretary filed a Motion Seeking Reconsideration of numerous 

evidentiary ru lings made at the hearing of this matter. 

At the hearing U.S. Steel had objected to introduction, by the Secretary. of various exhibits and 

the objections were sustained. The basis for each of the rulings was set forth in the record of this matter, 

and need not be reiterated. I have evaluated the motion filed by the Secretary, but find there is no need to 

reconsider the initial rulings set forth in the record. Accordingly, the motion to reconsider is denied. 

1327 
I. The Secretary's Case 

Terry McGill, who is presently a retired miner, previously worked as a roofbolter for U.S. 

Steel. According to McGill, his first contact with Carl Harless, a foreman employed by U.S. 

Steel, occurred in April 1999 when Harless, who was not McGill's foreman at that time, noted 

that an underground miner had taken his hat off, and had turned his light off. According to 

McGill, Harless fired th.at miner. McGill confronted Harless and told him that ifhe would fire 

every miner at the mine who would be found with his hat or light off, he (Harless) would be 

busy, as this practice is widespread. 

Subsequent to April 1999, McGill injured his knee at the mine and was off work for 13 

weeks. When McGill returned on June 21, 1999, Harless had become his foreman. Sometime 

thereafter, Harless told McGill and Jerry Norris, McGill's co-bolter on the section, that since he 

now had two committeemen on the section, he was outnumbered, and should probably "start 

wearing a tape recorder". (Tr. 45.) According to McGill, Harless" ... kept trying to goad me into 

something or get me to act". (Tr. 45.) 

According to McGill, on July 13, 1999, the section's continuous miner was cutting a 

crosscut from the No. 3 entry to the No. 2 entry. McGill testified that on his way to lunch he 

passed the No. 2 entry, and saw that it had not been pinned all the way to the face. He indicated 

that this entry was 20 feet wide, and that at the face along the right side of the entry, the last row 

of bolts was approximately seven feet from the face. In contrast, on the left side of the entry the 

last row of bolts was approximately ten feet from the face.2 

McGill went to see Luther C. Self, the miner operator, and asked him ifhe was going to 

cut all the way through to entry No. 2, and Self indicated in the affirmative. McGill told Self that 

if he were to cut into the No. 2 entry, he would then be cutting into an area that was not 

completely pinned. Self told him that Harless had told him (Self) to cut the crosscut through to 

the No. 2 entry. McGill then went to see Harless and asked him ifhe was going to cut through to 

the No. 2 entry, and the latter indicated in the affirmative. McGill then testified that he told 

Harless as follows: " ... you know you will be cutting into a place that is not completely pinned". 

(Tr. 55.) According to McGill, Harless said that "it was his f...ing section and he would run it 

like he wanted to and for us to g~t our g-d damn butts out there and eat." (Tr. 55.) 

At approximately 10:30 a.m., while at the dinner hole, McGill asked MSHA Inspector 

Bud Norris, who was present that day conducting an inspection, whether the law would be 

violated if a cut would be taken" ... and it [was] not bolted up all the way". (Tr. 59.) According 

to McGill, the inspector asked if such a cut had already been taken, and McGill indicated that it 

2

0n June 11 or June 12 when McGill bolted the face of the No. 2 entry, he asked Harless why he 

had not had the area "squar[ed] up" (Tr. 218) so it could be pinned properly, and Harless responded by 

saying that it was his "f---ing section ... and he'll run it like he wanted to". (Tr. 219.) 

1328 
had not. The inspector did not say anything further to McGill.on this subject. 

Harless was located one to two crosscuts away from the dinner hole during the 

conversation between McGill and the inspector. According to McGill, Harless observed him 

talking to the inspector. McGill indicated that Harless then entered the dinner hole, and asked the 

inspector what he was inspecting, and the inspector said he was inspecting a belt. Harless then 

left, and McGill continued talking to the inspector. 

According to McGill, at approximately 11 :00 a.m., after he had left the dinner hole, he 

met the miner crew going into the dinner hole, and asked them if they had cut through to the No. 

2 entry. Self told McGill that Harless told them to get the miner out of the entry, and to stop 

cutting in that area. 

Thereafter, McGill went to the No. 3 entry with Norris to resume bolting, at which point 

Harless told him to get some curtains from the tail track area, and to bring them back to the 

section. The curtains were located approximately 180 feet from the section. McGill indicated 

that the curtains which weigh approximately three pounds each, but were "bulky" (Tr. 68), are 

usually transported by a miner via a scoop. He indicated that the floor of the walkway, from the 

tail track to the section, sloped downhill and contained mud that was more than ankle deep and 

generally consisted of "rough terrain". (Tr. 66.) McGill testified that he asked Harless if he 

could use a scoop, and Harless responded as follows: "Look, I told you to walk out there and get 

it. Are you violating a direct work order"? (Tr. 67.) McGill indicated that he told Harless that 

he would get the curtains,3 but that" ... it may take me some time .... " (Tr. 67.) McGill took one 

curtain to the section, returned to the tail, and put another curtain on his shoulder, intending to 

take it to the section. Harless approached him and told him to put the curtain down and for him 

and Norris to bolt the No. 3 crosscut. Harless then offered to carry the rest of the curtains·. 

McGill testified that he told Harless that ifhe would carry the curtains, then he (McGill) would 

file a grievance, as Harless would be performing "classified" work. According to McGill, 

Harless then said to him as follows: " ... you little son of a b---h, I'm going to show you 

something about what's right and what's wrong." (Tr. 73.) According to McGill, Harless was 

"really cussing". (Tr. 73.) McGill told Harless that if he would continue cursing that he 

(McGill) would get Hank Keaton, the mine committee chairman, to be a witness. Harless then 

told him that he (McGiJl) did not need Keaton to be a witness because he (McGill) "was a f---ing 

committeeman." (Tr. 74.) McGill said that Harless then began to run at him with his fist drawn, 

and said that ''you not going nowhere." (Tr. 74.) McGill told Harless that he was getting Keaton 

and started to walk away, at which point Harless said that he was insubordinate and "you 're a 

fired son of a b---h". (Tr. 75.) Harless further told him that "the time is 11 :46 ... [y]our time 

stops now." (Tr. 75.) In response, McGill told him that he was calling Mike Sumpter, a 

management official, and started to go to get him. Harless then called him (McGill) 

insubordinate, told him that he was fired, and that he (Harless) would get Sumpter. Harless then 

got Sumpter, who arrived at the scene and asked what was going on. McGill said that he did 

3 According to McGill there was about a dozen curtains to transport. 

1329 
nothing, and he went outside accompanied by Harless and S~pter. 

Self testified that on July 13, he was told by Harless to cut the crosscut between the No. 2 

and No. 3 entries. (Tr. 92.) After Self took only a 35 foot cut, Harless told him to back the miner 

out, and shut it down.4 According to Self, in normal operations the miner takes a 40 foot cut, and 

that it is not the normal practice to stop a miner after only a 35 foot cut in order to fix a suction 

hose. Self indicated that when he was told by Harless to remove the miner and shut it down, he 

had not experienced any difficulty operating the miner, that it had been operating properly, and 

that there was no indication that it was losing oil. Self conceded that a hose on the miner that is 

used to siphon oil to the miner was broken. However, he opined that as the hose was not 

pressurized, it did not have any effect on the operation of the miner. 

After stopping the miner, Self left the area to go to the dinner hole. 

Timothy Lynn Bynum, Selfs helper, testified that Harless did not tell him the reason for 

having to back the miner out on July 13. He confirmed that he had not observed any problems 

with the hydraulic tramming of the miner, nor did he experience difficulty raising or lowering the 

cutting head. He also confirmed that the offset had not been bolted. He did not recall Harless 

saying that the suction hose had to be fixed. On cross examination, he indicated, in essence, that 

he was not sure who had informed Harless that they were cutting into an unpinned area, but that, 

in response, Harless was not angry nor did he issue any threats. 

Jerry A. Norris, a roofbolter, was McGill's partner on the bolter during the dates in issue. 

He confirmed that Harless said that since he had two committeemen" ... and an a--hole" (Tr. 139) 

he needed to carry a tape recorder. · 

According to Norris, on July 13, McGill asked Harless ifhe was going to cut a crosscut 

between the No. 2 and No. 3 entries, and Harless indicated, in the affirmative. Norris testified 

that he told Harless that cutting into an unpinned area is illegal. According to Norris, Harless 

said "it was his f---ing section; he'd run it any f---ing way he wanted to." (Tr. 141) and Harless 

then told Norris and McGill "to eat [their] goddamn lunch" (Tr. 141). 

Later on in the day, Norris was assigned to build curtain drops. He asked Harless where 

the curtains were coming from, and the latter told him that McGill would bring them "if he 

wasn't too f---ing crippled." (Tr. 143) Norris testified that later on, when Harless told him to get 

the curtains, he used a scoop to get the curtains with Harless' knowledge. 

On cross examination, Norris indicated that on July 12, the No. 2 entry had not been 

completely bolted. He explained that rocks on the floor of the entry had prevented the roofbolter 

from advancing further inby along the right side of the entry. As a result, the inby right side of 

the entry was more than 5 feet from the last row of bolts. Norris indicated that the unbolted area 

4The following day, July 14, Self cut into the No. 2 entry. 

1330 
was the area that would be cut from the No. 3 entry. According to Norris, at the end of the shift, 

on July 12, he informed Harless that they would not be able to pin all the way to the face due to 

uncut bottom. 

Rex Tanner, the president of the local union, and a member of the mine committee, was 

with the inspector in the dinner hole on July 13. According to Tanner, after Harless arrived at the 

dinner hole he introduced himself to the inspector, and asked him what the problem was, and the 

inspector explained that if a cut would be taken through to an unpinned area there would be a 

violation. At that point, Harless turned and went to the face where the subject cutting was being 

done. 

II. U.S. Steel's Case 

Rick Nogosky, the superintendent at the site, testified that he made the decision to fire 

McGill, and that he was solely responsible for the firing. He indicated that he made that decision 

after the 24-48 union hearing related to the stopping ofMcGill's's time by Harless. He explained 

that his decision was to "uphold" (Tr. 239) the discharge of McGill.5 

Nogosky indicated that on two separate occasions he had heard McGill say f--k you to 

two supervisors. 

Nogosky opined that an oil leak in a miner could occur suddenly, and would result in a 

malfunction in the miner's capacity to lower or raise the cutting head. 

Harless testified that on July 13, at approximately 10:00 a.m., McGill wanted to know if 

he would cut from the No. 3 crosscut to the No. 2 entry, and he (Harless) indicated in the 

affirmative .. McGill responded by stating that this could not be done, as the area was 

unsupported. Harless testified that, in response, he told McGill that it was supported and invited 

him to observe it. · McGill did not go, but instead went to the crosscut between the No. 2 and No. 

3 entries, where the miner was located. Harless said that the unbolted area was in the offset inby 

the end of the No 2 entry perpendicular to the crosscut between the No. 2 and No. 3 entries. He 

indicated that the appropriate plan required bolting to be performed within five feet of the face. 

In contrast, in the offset, the distance from the last row of bolts to the face was seven feet. He 

indicated that the height from the ceiling to the floor was four feet in that area, whereas the 

normal distance was six feet. He explained that in cutting through the crosscut from the No. 3 

entry to the No. 2 entry, the miner would not have entered this offset area, as it was perpendicular 

to the cut. He indicated that on July 15, when the cut was taken from the crosscut into the No. 2 

entry, Inspector Norris was present, but he did not criticize this action, nor was it cited. 

5

Nogosky testified that in deciding to fire McGill, he relied on the stories presented by Harless 

and McGill at the 24-48 hearing, and also his review of their personnel files. In contrast, in his 

deposition he testified that he relied on Harless' testimony, the nature of the events, and nothing else. 

1331 
Harless testified that the area in the No. 2 entry, in a direct line in by of where the miner 

was cutting in the crosscut between the No. 2 and No. 3 entries, was bolted by 10:00 a.m. on July 

13, as McGill and Norris had bolted that area on July 12. There was a conflict in Harless's 

testimony regarding the time during the morning of July 13, when Self backed the miner out 

from the crosscut in which he was cutting, trammed it to the No. 3 entry, and yelled at him 

(Harless) that the miner had busted a hose and needed oil. Initially, Harless said that this 

conversation occurred at approximately 12:00 p.m .. However, later on in his testimony, he 

indicated that the time of 12:00 p.m. was not correct, but that he was sure of the following 

sequence of events: that (1) after he had this conversation with Self, and after Self had backed the 

miner outby from the crosscut between the No. 2 and No. 3 entries, he saw the inspector in the 

dinner hole on a bench with Norris and McGill, and (2) that 30 minutes after he had the 

conversation with Self, he observed and lifted eight empty cans of oil that were in close 

proximity to the miner. 

Harless testified that at approximately 11 :30 a.m., on July 13, after he told McGill to get 

some curtains from the tail area, he approached the tail and saw McGill carrying only one curtain 

under his arm. Harless said to him" ... let me get some of these for you and help you carry them 

up there". {Tr. 408.) McGill responded by telling Harless that ifhe touched one piece he 

(McGill) would file a grievance. Harless indicated that he was upset because McGill had been 

carrying only one curtain. Harless told McGill, who had continued walking inby, to stop as he 

wanted to tell him what to do for the rest of the shift. According to Harless, McGill said, f--k 

you, and that he was doing what I had told him. Harless again told McGill to stop, and told him 

that he needed for him to know what to do for the rest of the shift. According to Harless, he told 

McGill to stop two more times and both times McGill said, in response, f--k you. Harless told 

McGill that he was bordering on insubordination and McGill said get f---ed. Harless then told 

McGill to stop, and intending to fire him, told him "I'm stopping your time". {Tr. 413.) Harless 

next told McGill to sit down, and then he went to get Sumpter. Harless said that he reported this 

incident to N<?gosky, and recommended that McGill be fired. 

Harless indicated that he had not been concerned when he saw McGill and Norris with 

the inspector , as people speak to inspectors all the time. In essence, he said that the only time 

that he got angry was when he saw McGill carrying only one curtain. 

Ill. Discussion 

A. CaseLaw 

The Commission, in Braithwaite v. Tri-Star Mining, 15 FMSHRC 2460 (December 

1993), reiterated the legal standards to be applied in a case where a miner has alleged that he was 

subject to acts of discrimination. The Commission, Tri-Star, at 2463-2464, stated as follows: 

The principles governing analysis of a discrimination case under the Mine 

Act are well settled. A miner establishes a prima facie case of prohibited 

1332 
discrimination by proving that he engaged in protected activity and that the 

adverse action complained of was motivated in any part by that activity. 

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

2797-800 (October 1980), rev'd on other grounds, sub nom. Consolidation Coal 

Co., v. Marshall, 663 F .2d 1211 (3rd Cir. 1981 ); Secretary on behalf of Robinette 

v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator 

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

occurred or that the adverse action was in no part motivated by protected activity. 

Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the prima facie case 

in this manner, it nevertheless may defend affirmatively by proving that it also 

was motivated by the miner's unprotected activity and would have taken the 

adverse action in any event for the unprotected activity alone. Pasula, 2 

FMSHRC at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. 

Coal Corporation, v. United Castle Coal Co., 813 F.2d 639, 642 (41h Cir. 1987). 

B. The Secretary's Prima Facie Case. 

1. Protected activities 

It is not contested that on the morning of July 13, the most inby portion of the No. 2 entry 

had not been cut to an equal depth across the entire width of the entry, due to a low ceiling 

resulting from rock build-up on the floor. As a result, the right side of the entry was not bolted 

within five feet of the face. Similarly, U.S. Steel did not rebutt or contradict McGill's testimony 

that on July 13 he had communicated both to Harless, his immediate supervisor, and MSHA 

Inspector Norris, his concern that if Self would complete the crosscut between the No. 3 and No. 

2 entries and continue into the No. 2 entry, he would then be cutting into an unbolted area. 

Section 105(c) sets forth the following language regarding activities that are protected 

under the Act: "[making] a complaint notifying ... the operator's agent ... of an alleged danger or 

safety violation in a coal ... mine .... " The Legislative History of the Act manifests Congress' 

intent that Section 105( c) be given a broad construction. S. Rep. No. 95-181, 95ih Cong., l51 

Sess., at 35 & 36 (1977) ["S. Rep."], reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 951

h Cong., 2d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 623 (1978) ["Leg. Hist."] cited with approval in Pasula, supra at 2791 -

2792) Thus, broadly construing Section 105(c), I find that McGill's communications of safety 

concerns to Inspector Norris and to Harless are protected under the Act. Accordingly, I find that 

it has been established that on July 13, McGill did engage in protected activities. 

2. Adverse action. 

The record unequivocally establishes that on July 13 Harless, after a confrontation with 

McGill, stopped his (McGill's) time, and intended to fire him permanently. Harless' action in 

stopping McGill's time led directly to a 24-48 hearing, which was a union mandated first step in 

the grievance disciplinary process. Further, according to McGill, and not subsequently 

1333 
contradicted by Harless, the latter had told him, at the confrontation on July 13, that he was 

"fired".6 Thus I find that it has been established that U.S. Steel took action adverse to McGill. 

3. The Adverse Action Was Motivated "in Any Part" by McGill's 

Protected Activities. 

Harless, who took the action adverse to McGill on July 13, testified, in essence, that he 

had not gotten angry when McGill told him, on the morning of July 13, not to cut into the No. 2 

entry because it was unsupported, and he was not concerned when he saw McGill sitting on a 

bench with the inspector in the dinner hole, because people speak to inspectors all the time. He 

explained, in essence, that, in intending to fire McGill and in stopping his time, he was motivated 

by McGill's "insubordination", i.e., refusing to stop when ordered by him (Harless), and cursing 

at him (Harless). Also, in essence, Harless indicated that on July 13, he got angry only when he 

saw McGill carrying one curtain. 

However, I take cognizance of the following uncontested facts: that at approximately 

10:30 a.m., on July 13, McGill told Harless that ifhe would cut from the entry No. 3 through to 

entry, No. 2 entry, he would be cutting into a place that was not completely bolted; that shortly 

thereafter McGill asked Inspector Norris, at the dinner hole, whether there would be a violation if 

a miner would cut into a place that had not been completely bolted; that Harless observed McGill 

sitting next to the inspector on a bench in the dinner hole; and that at 11 :26 a.m. that same day, 

Harless, intending to fire McGill, permanently stopped his time. Also, I note that Harless did not 

specifically rebut McGill's testimony that on July 13, when he told him that he would be cutting 

into a place not completely bolted, Harless said it was his f---ing section and he would run it like 

he wanted to. Thus, primarily based upon the coincidence in time between (I) McGill's' 

protected verbal communication to Harless, which was accompanied by some evidence of 

animus on the part of Harless, followed shortly thereafter by Harless observing McGill talking to 

the inspector; and (2) Harless' firing ofMcGill less than an hour later, I find that the Secretary 

has established that Harless' adverse action taken against McGill was motivated "in any part" by 

McGill's protected-activities. 

IV. U.S. Steel's Defense 

I take cognizance, as discussed above, of the existence of some evidence of some degree 

of animus by Harless towards McGill regarding the latter's protected activities under the Act. 

However, it is significant to note that Bynum, Selfs helper on the miner, testified that when it 

was brought to Harless' attention that they would be cutting into an unpinned area, Harless was 

not angry and did not issue any threats. Indeed, the record does not contain any evidence of any 

animus by Harless, or adverse action taken by him directed against either Bynum or Self, the 

miner operator. In the same fashion Norris, who was McGill's partner on the bolter, testified that 

6

Subsequently, Rick Nogosky, the superintendent at the mine made a decision after the 

24-48 union hearing to uphold Harless discharge of McGill. 

1334 
he told Harless that" ... you're cutting into an unpinned place, _such as Terry also said. And this is 

illegal," and Harless stated that" ... it was his f---ing section; he'd run it any f---ing way he 

wanted to." (Tr. 141.) Later, Harless observed both McGill and Norris sitting with the inspector 

in the dinner hole. However, significantly, there is no evidence in the record that Harless 

directed any animus toward Norris or took any adverse action against him as a consequence of 

his having heard Norris express safety concerns, and having observed him talking to the 

inspector. 

Further, most significantly, although Harless' action adverse to McGill shortly followed 

McGill's protected activities, i.e., voicing safety concerns to Harless and the inspector, it was 

McGill's actions that were not protected under the Act, i.e., threatening to file a union grievance, 

that were immediately followed by Harless' stopping his time. Additionally, according to 

McGill, Harless' cursing him and telling him that "you 're a fired son of a b---h, ... your time 

stops now", immediately followed McGill's statement to Harless that he was going to get the 

mine committee chairman, Hank Keaton. It is not for this forum to decide whether, in the light 

of this sequence of events and actions, McGill has any redress under the National Labor 

Relations Act. However, considering (1) this scenario and sequence of events; (2) testimony of 

Norris and McGill regarding Harless' previous statements to them expressing displeasure with 

having union members on his section and; (3) the unrebutted testimony of Harless, whose 

demeanor I observed and found to be truthful in his testimony on this point, that McGill refused 

to stop walking away when ordered to do so by Harless, I find that although Harless' adverse 

action taken against McGill on July 13 was motivated in any part by McGill's protected 

activities, Harless would have taken the adverse action against McGill, based on McGill's 

actions that are not within the perview of those protected by the Act. Accordingly, I find that 

U.S. Steel has prevailed in its affirmative defense. Within the above framework of evidence, I 

conclude that the Secretary has not established that U.S. Steel discriminated against McGill in 

violation of Section 105( c) of the Act. 

1335 
ORDER 

It is ORDERED that the Complaint filed in this case be DISMISSED, and that this case 

be DISMISSED. 

~eis~ Administrative Law Judge 

Distribution: (Certified Mail) 

William Lawson, Esq., U.S. Department of Labor, Office of the Solicitor, 150 Chambers Bldg., 

100 Centerview Drive, Birmingham, AL 35216 

Anthony Jeselnik, Esq., U.S. Steel Mining Company, Law Department, 600 Grant Street, 

Pittsburgh, PA 15219-2749 

/set 

1336 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

November 24, 2000 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CNIL PENALTY PROCEEDING 

Docket No. WEST 2000-245-M 

A.C. No. 10-00648-05511 

v. Rocky Mountain Quartzite Quarry 

NORTHERN STONE SUPPLY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Deia Wallace-Peters, Esq., Office of the Solicitor, U.S. Department of 

Labor, Seattle, Washington, for Petitioner; 

Gary Mullard, President, and Garth Greenwell, Quarry Manager, Northern 

Stone Supply, Inc., Oakley, Idaho, for Respondent. 

Judge Manning 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against 

Northern Stone Supply, Inc. ("Northern Stone"), pursuant to sections 105 and 110 of the ~ederal 

Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). A hearing was 

held in Twin FaJls, Idaho. The parties presented testimony and documentary evidence and made 

closing arguments. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Rocky Mountain Quartzite Quarry is a dimension stone quarry operated by Northern 

Stone in Cassia County, Idaho .. It is a rather small quarry that operates on a seasonal basis. As a 

consequence, it is usually inspected by MSHA only once a year. 

On July 1, 1999, MSHA Inspector Curtis Chitwood conducted a health inspection at the 

quarry. As part of this inspection, be sampled five miners for exposure to silica-bearing dust. He 

used the type of sampling devices that MSHA typically uses and took the sample over a single 

six- hour shift. These devices consist of a "constant flow sampling pump" that is designed to 

take an air sample in each miner's breathing zone. These devices are calibrated at a flow rate of 

1.7 liters per minute. The five respirable samples that were obtained were sent to MSHA's 

laboratory in Pittsburgh, Pennsylvania, along with a control sample. As a result of this sampling, 

Inspector Chitwood determined that two miners were overexposed to silica-bearing dust and he 

1337 
issued two citations under section 104(a) of the Mine Act. He issued a third citation alleging that 

Northern Stone was not conducting dust surveys at the quarry. 

A. Citation No. 7977666 

Citation No. 7977666 alleges a violation of 30 C.F.R. § 56.5001(a)/.5005. The condition 

or practice section of the citation provides, in part: 

The miner (Florentino Castillo) assigned to work in the quarry area 

was exposed to a shift-weighted average of .33 mg/cubic meter 

(TWA) of respirable silica-bearing dust on 7/1/99. This exceeded 

the permissible exposure limit of .15 mg/cubic meter (TL V) times 

the sampling factor (1.2 for respirable free silica dust sampling and 

analysis) .. 15 times 1.2 (EF) equals .18 . .33 is 1.87 times .18 

(TL V times EF). A fit tested respirator was not being used and a 

respiratory protection program meeting the requirements of ANSI 

288.2-1969 was not in place. All feasible engineering controls 

were not in use to control employee's dust exposure .... 

In the citation, Inspector Chitwood determined that it was reasonably likely that the 

violation would lead to a serious illness; that the violation was of a significant and substantial 

nature ("S&S"); and that Northern Stone's negligence was moderate. The Secretary proposes a 

penalty of $655 for this violation. The safety standard provides, in part, that "exposure to 

airborne contaminates shall not exceed, on the basis of a time weighted average, the threshold 

limit values adopted by the American Conference of Governmental Industrial Hygienists .... " 

Section 56.5005 provides, in part, that when "engineering control measures have not been 

developed or when necessary by the nature of the work involved ... , employees may work for 

reasonable p€riods of time in concentrations of airborne contaminates exceeding permissible 

levels if they are protected by appropriate respiratory protective equipment." 

Northern Stone contested this citation for a number of reasons. First, Northern Stone 

states that MSHA conducted silica dust surveys in the past and no over-exposures were detected. 

As a consequence, it believed that it was in compliance with MSHA's health standards. Second, 

Northern Stone believed that MSHA was responsible for conducting these respirable dust 

surveys and it relied on MSHA's surveys to remain in compliance. Third, Northern Stone 

questions the accuracy of the allegations in the citation because, after the citation was issued, it 

arranged for its own respirable dust survey and no over-exposures were found. 

I find that the Secretary established a violation. The Commission and the courts have 

uniformly held that mine operators are strictly liable for violations of safety and health standards. 

See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (101h Cir. 1989). "[W]hen a violation of a 

mandatory safety standard occurs in a mine, the operator is automatically assessed a civil 

1338 
penalty." Id. at 1197. In addition, the Secretary is not required to prove that a violation creates a 

hazard, unless the safety standard so provides. 

The [Mine Act] imposes no general requirement that a violation of 

MSHA regulations be found to create a safety [or health] hazard in 

order for a valid citation to issue. If conditions existed which 

violated the regulations, citations [are] proper. 

Allied Products, Inc., 666 F.2d 890, 892-93 (5 1h Cir. 1982)(footnote omitted). The negligence of 

the operator and the degree of the hazard created by the violation are taken into consideration in 

assessing a civil penalty under section 1 lO(i). 30 U.S.C. § 820(i). 

For purposes of this case, I find that MSHA may issue a valid citation for an 

overexposure to silica-bearing dust based on a single-shift silica dust survey. I reach this 

conclusion based on the Commission's decision in Asarco, Inc., 17 FMSHRC 1 (1995), and 

former Commission Judge Maurer's subsequent analysis in Asarco, Inc., 19 FMSHRC 1097, 

1130-1136 (1997). Based on the evidence presented, Judge Maurer concluded that "MSHA's use 

of single-shift sampling is a reasonable means of ascertaining, to the requisite degree of accuracy, 

whether the enforcement concentration level standard in Section 57.500l(a) has been exceeded." 

Id. at 1136. 

The Secretary presented evidence as to the procedures used by Inspector Chitwood to take 

the sample and the protocol used to analyze the sample at MSHA's Pittsburgh laboratory. Jaime 

Alvarez, a safety and health specialist in MSHA's Western District, testified very generally about 

MSHA's sampling procedures. (Tr. 6-20). Inspector Chitwood testified about the procedures he 

used to sample at the quarry. (Tr. 20-59). Cathy Bums, the quality assurance coordinator at 

MSHA's laboratory, testified about the procedures used to analyze respirable dust samples at the 

laboratory. (Tr. 75-101). James Polizzano, an x-ray analyst at the MSHA l~boratory, testified as 

to the procedures he used when analyzing the particular respirable dust sample at issue. (Tr. 102-

121 ). Northern Stone did not present any evidence to rebut this evidence. Consequently, I credit 

the testimony of these witnesses. I find that MSHA followed correct procedures when sampling 

for respirable dust at the quarry and when analyzing the sample at its laboratory. Accordingly, I 

find that the citation accurately reflects the amount of silica dust to which Mr. Castillo was 

exposed during the particular s_ix-hour shift that was sampled. The shift-weighted average of .33 

mg/cubic meter ofrespirable silica-bearing dust detected by MSHA is an "estimate" of that 

"individual's exposure concentration level" on that date. Id. 

The Commission has held that, in certain instances, there is a presumption that the 

violation of a respirable dust standard is S&S. Consolidation Coal Co., 8 FMSHRC 890 (June 

1986), ajf'd sub nom. Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071 (D.C. Cir. 1987); U.S. 

Steel Mining Co., Inc., 8 FMSHRC 1274 (September 1986); Twentymile Coal Co., 15 FMSHRC 

941 (June 1993). In those cases, the mine operator violated sections 30 C.F.R. § 70.100 or 

§70.101, which apply to coal mines. 

1339 
An S&S violation is described in section 104( d)( 1) of the Mine Act as a violation "of 

such nature as could significantly and substantially contribute tO the cause and effect of a ... mine 

safety or health hazard." A violation is properly designated S&S "if based upon the particular 

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

to will result in an injury or illness of a reasonably serious nature." 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 four-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, 1574 

(July 1984). The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgu.lf, Inc., 10 FMSHRC 498 (April 1988). 

Under the Mathies test, the Secretary must establish: (1) the underlying violation of the 

health standard; (2) a discrete health hazard, a measure of danger to health, contributed to by the 

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

( 4) a reasonable likelihood that the illness 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 illness will result from 

the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). 

In the cases involving coal mines, cited above, the Commission held that because an 

analysis of the four elements of the S&S test would be essentially the same in each instance in 

which the Secretary proves a violation of 30 C.F.R. § 70.100 or §70.101, proof of a violation 

gives rise to a presumption that the violation is S&S. See 8 FMSHRC at 1281. It based this 

presumption, in large measure, on the legislative history of the Mine Act. The Commission 

noted that "prevention of pneumoconiosis and other occupational illnesses is a fundamental 

purpose underlying the Mine Act." 8 FMSHRC at 895. 

For reasons set forth below, I find that this presumption should not be applied under the 

particular facts of this case. First, the Secretary made no attempt to introduce any evidence 

concerning the gravity of this violation, the reasonable likelihood of an illness, or whether any 

illness is likely to he serious. Indeed, counsel for the Secretary ignored the S&S and gravity 

issues both in the presentation of the evidence and in her closing arguments. The only evidence 

on these issues is the citation itself. The Secretary cannot rely on this presumption without at 

least attempting to invoke it in some way. The fact that the Commission created this 

presumption does not obviate th~ Secretary's responsibility to establish her case. 

In addition, this case involves facts that were not present in the Commission's decisions. 

The Rocky Mountain Quartzite Quarry operates on a seasonal basis with short-term workers. 

The quarry only mines dimension stone about six months a year. Mr. Castillo was a stone cutter 

at an area of the quarry known as Silver Peak. When Inspector Chitwood conducted the health 

survey, Mr. Castillo agreed to cut stone for the entire shift. Normally, stone cutters do not cut 

stone straight through their shift. (Tr. 25-27). At Inspector Chitwood's urging, Mr. Castillo 

agreed to work through lunch without taking any breaks or performing any tasks during his shift 

other than cutting stone. Id. Thus, his exposure to silica dust during this shift may not have been 

1340 
representative of his exposure on a typical work day. In addition, it is not clear from the record 

whether Mr. Castillo returns every spring to work at the quarry or whether different people work 

at the quarry each season. Mr. Castillo returns to his home outside of Idaho when he is not 

working at the quarry. Given these circumstances, I believe that the application of the 

presumption would be inappropriate. 

I find that the Secretary established the first two elements of the Commission's four part 

S&S test. A violation occurred that contributed to a discrete health hazard. The Secretary did 

not establish the third element of the Mathies formula: a reasonable likelihood that the hazard 

contributed to will result in an illness. First, other than the citation itself, the Secretary did not 

offer any evidence on this element. Second, as stated above, the sample taken by the inspector 

may not reflect Mr. Castillo's exposure over a period of time. The S&S criteria are to be 

evaluated assuming continued normal mining operations. It is not at all clear that Mr. Castillo 

would have been exposed to a shift-weighted average of .33 mg/cubic meter of silica dust during 

his normal work days. Accordingly, I find that the Secretary failed to establish that the violation 

was S&S. 

I am required to assess a civil penalty for all violations of safety and health standards 

taking into consideration the six penalty criteria set forth in section 11 O(i) of the Mine Act. One 

criteria is the gravity of the violation. As stated above, the Secretary did not offer evidence on 

this criteria except the citation. Based on the evidence ofrecord, I find that the violation was 

only slightly serious. I take official notice of the fact that, if a miner is overexposed to silicabearing dust over a period of time, he can develop silicosis, which is a debilitating disease. But I 

also take into consideration the fact that it is not clear in this case that Mr. Castillo had been 

actually exposed to the level of silica dust measured by the inspector over a significant period of 

time or that he would be so exposed in the future. His work routine was altered when the· sample 

was taken. The Secretary is not usually required to establish that the cited exposure level would 

continue, but the facts in this particular case warrant such consideration. The Secretary bears the 

burden of proof on the gravity criterion and I have taken into consideration the fact that this issue 

was not raised by counsel for the Secretary at the hearing. 

I also find that Northern Stone's negligence was low. Mr. Greenwell testified that MSHA 

had taken silica dust samples at the mine and no citations were issued. He believed that the 

quarry was in compliance with the silica dust standard and that MSHA was responsible for taking 

samples to ensure compliance. He was very concerned that the sample showed an overexposure. 

He questioned the accuracy of the sample because he believed that miners were not being 

overexposed, but he also wanted to take steps to ensure that miners worked in a healthy 

environment. After the citations were issued, Northern Stone purchased a sampling device and 

has sought MSHA's assistance in developing a sampling program. It is important to note that the 

Secretary did not introduce any evidence on the negligence criterion. 

1341 
B. Citation No. 7977667 

Citation No. 7977667 alleged another violation of 30-C.F.R. § 56.5001 (a)/.5005. The 

condition or practice section stated that a miner was exposed to a shift-weighted average of .17 

mg/cubic meter ofrespirable silica-bearing dust on July 1, 1999, and that the exposure limit, 

taking into consideration the error factor, was .25 mg/cubic meter. When I pointed out that this 

citation does not set out a violation because the exposure level was less than the exposure limit, 

the Secretary agreed to vacate the citation. (Tr. 61-64, 133-34 ). It appears that the inspector 

made an error when entering the data received from MSHA's laboratory. 

C. Citation No. 7977668 

Citation No. 7977668 alleges a violation of30 C.F.R. § 56.5002. The condition or 

practice section of the citation provides, in part: 

Two (2) stone cutters were overexposed to respirable silica-bearing 

dust at the dimensional stone quarry site on 07-01-1999. The mine 

operator had not conducted dust surveys as frequently as necessary 

to determine the adequacy of the engineering control measures at 

the dimensional stone quarry site, to ensure a safe work 

environment for the miner. 

Inspector Chitwood determined that it was reasonably likely that the violation would lead 

to a serious illness; that the violation was S&S; and that Northern Stone's negligence was 

moderate. The Secretary proposes a penalty of$655 for this violation. The safety standard 

provides that "[ d]ust, gas, mist, and fume surveys shall be conducted as frequently as necessary 

to determine the adequacy of control measures. 

Northern Stone contends that it did not know how frequently such surveys were required 

under the standard: Northern Stone attempted to get clarification from MSHA on several 

occasions after the citations were issued. As stated above, Northern Stone incorrectly believed 

that MSHA would take all of the required respirable dust surveys. 

I find that the Secretary established a violation because Northern Stone had not conducted 

any dust surveys prior to the issuance of this citation. Thus, the issue of how frequently such 

surveys must be taken is irrelevant for this citation. I note that Northern Stone contested the 

citations in this case primarily because it felt that MSHA was not providing sufficient assistance 

in helping it achieve compliance with its health standards. After the citations were issued, 

Northern Stone sought MSHA's assistance in developing a plan to solve respirable dust problems 

at its quarry and also sought help in learning how to use the sampling equipment it had 

purchased. Northern Stone's own silica-dust sampling results indicated that miners were not 

being overexposed. Messrs. Greenwell and Mullard expressed their frustration at the hearing and 

continued to seek MSHA's advice. They admitted that they did not sample for silica dust prior 

1342 
to July 1999, but they were perplexed by MSHA's failure to follow through on its health 

inspection by answering their rather basic questions about the regulatory requirements. 

Although the Secretary did not introduce any evidence on the gravity and negligence 

criteria at the hearing, I find that the violation was serious and that Northern Stone's negligence 

was moderate. The citation itself supports these findings. If a mine operator does not conduct 

respirable dust surveys, it cannot determine whether its employees are being overexposed to 

silica dust. Although MSHA conducts health surveys at mines from time to time, the standard 

requires mine operators to monitor the health conditions at the mine. It cannot rely on MSHA's 

testing alone. Since the language of the standard clearly places this responsibility on the mine 

operator, I find that Northern Stone was moderately negligent. 

I could not help but notice that immediately after the close of the record in this case, 

while the parties were still in the courtroom, Mr. Alvarez ofMSHA's Metal/Nonmetal Western 

District Office and Messrs. Greenwell and Mullard began generally discussing approaches that 

Northern Stone could take with respect to compliance with the silica dust standard. It appeared 

to me that Mr. Alvarez, on behalf of MSHA, pledged to provide assistance to Northern Stone in 

this regard. It is my hope that the parties follow through on this discussion so that Northern 

Stone can provide a healthy environment for its employees. Discussion and assistance will help 

improve health conditions at this quarry more than further litigation will ever achieve. 

II. APPROPRIATE CIVIL PENALTIES 

Section l lO(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. Northern Stone was issued 13 citations during the two years prior to 

this inspection. None of these citations involved silica dust. Northern Stone is a small operator 

and the quarry worked 9,980 man-hours. The violations were abated in good faith. Northern 

Stone appeared eager to take steps to prevent future violations of the cited standards. The 

penalties assessed in this decision will not have an adverse effect on Northern Stone's ability to 

continue in business. My gravity and negligence findings are set forth above. I significantly 

reduced the penalties, in part, because Northern Stone is small and it demonstrated good faith. 

Based on the penalty criteria, I find that the penalties set forth below are appropriate. 

III. ORDER 

Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 30 C.F.R. § Penalty 

7977666 56.5001 (a)/.5005 $80.00 

7977667 56.5001 (a)/.5005 Vacated 

7977668 56.5002 120.00 

1343 
Accordingly, Citation Nos. 7977666 and 7977668 are AFFIRMED as modified above; 

Citation No. 7977667 is VACATED; and Northern Stone Supply, Inc., is ORDERED TO PAY 

the Secretary of Labor the sum of $200.00 within 40 days of the date of this decision. Upon 

payment of the penalty, this proceeding is DISMISSED. 

Distribution: 

anning 

Administrative Law Judge 

Deia Wallace-Peters, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third 

Avenue, Suite 945, Seattle, WA. 98101-3212 (Certified Mail) 

Garth Greenwell, Quarry Manager, Northern Stone Supply, Inc., P.O. Box 249, Oakley, ID 

83346 (Certified Mail) 

RWM 

1344 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

November 29, 2000 

FREEMAN UNITED COAL COMP ANY, 

Contestant 

V. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

CONTEST PROCEEDINGS 

Docket No. LAKE 2000-102-R 

Citation No. 7584882; 6/22/2000 

Docket No. LAKE 2000-103-R 

Citation No. 7584883; 6/22/2000 

Docket No. LAKE 2000-104-R 

Citation No. 7584884; 6/22/2000 

Docket No. LAKE 2000-105-R 

Citation No. 7584885; 6/22/2000 

Crown II Mine 

Mine ID 11-02236 

SUMMARY DECISION 

These cases are before me upon the Contests filed by Freeman United Coal Company 

(Freeman United) pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801, et seq., the "Act," to challenge four citations issued by the Secretary of Labor. 

On July 12, 2000, Freeman United filed a motion for summary decision. The Secretary 

responded on July 31, 2000, and filed her own cross motion for summary decision. Oral 

argument was held· on September 15, 2000, and the parties thereafter filed supplemental written 

argument. 

Under Commission Rule 67, 29 C.F.R. § 2700.67, a motion for summary decision shall 

be granted only if the entire record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, shows: (1) that there is no genuine issue as to any 

material facts; and (2) that the moving party is entitled to summary decision as a matter of law. 

The citations at bar all allege violations of the standard at 30 C.F.R. § 75.1909(a)(l). 

That standard provides as follows: 

(a) Non permissible diesel-powered equipment, except for the special 

category of equipment under § 75 .1908( d), must be equipped with the following 

features: 

1345 
(1) An engine approved under subpart E of part 7 of this title equipped 

with an air filter sized in accordance with the engine manufacturer's 

recommendations, and an air filter service indicator set in accordance with the 

engine manufacturer's recommendations. 

More particularly Citation No. 7584882, charges as follows: 

The Isuzu QD60 diesel engine used in the Number 04003 Diesel Gator 

was not being maintained in accordance with Subpart E'of30 C.F.R. Part 7. A 

legible and permanent approval marking as required by 30 C.F.R. Part 7.90 was 

installed but had not been supplied by the engine manufacturer. 

Citations No. 7584883, 7584884 and 7584885, allege the same violation but with respect 

to Isuzu 4BD1PW diesel engine used in the 04031 Alpha personnel carrier, Isuzu 4BD1PW 

diesel engine used in the 04032 Alpha personnel carrier and Isuzu QD60 diesel engine used in 

the 03107 Taylor Atkinson personnel carrier, respectively. 

There is no dispute in this case that the cited diesel powered equipment was non 

permissible within the meaning of the cited standard and that therefore the cited diesel engines 

must be approved in accordance with Subpart E of part 7. Under Subpart E at Section 7 .90 

"[ e ]ach approved diesel engine shall be identified by a legible and permanent approval marking 

inscribed with the assigned MSHA approval number and securely attached to the diesel engine." 

At oral argument on September 15, 2000, the Secretary clarified that she is alleging a 

violation in the citations at bar only on the basis of her claim that the approval markings required 

by Section 7.90 must be "supplied by the engine manufacturer." (Tr. 5-6). 1 It is undisputed that 

the approval markings utilized by Freeman United on the cited equipment were supplied by 

Freeman United itself and not by the manufacturer. Accordingly there is no dispute regarding the 

material facts. 

In effect however the Secretary seeks to have this Commission rewrite the cited standard 

to read as follows: "[e]ach approved diesel engine shall be identified by a legible and permanent 

approval marking supplied by the engine manufacturer and inscribed with the assigned MSHA 

approval number and securely attached to the diesel engine." 

Although the Secretary also claims, in her motion and at oral argument, that the 

cited engines were also not otherwise "approved" - - a claim that is disputed by the operator - -

that is accordingly not an issue now before me in the instant cases. 

1346 
The Secretary argues in support of this regulatory rewrite on the premise that the 

regulation's meaning is not plain and that therefore deference should be given to her 

interpretation citing Martin v. OSHRC, 499 U.S. 144, 148-149.(1991); Udall v. Tallman, 380 

U.S. 1, 16-17 (1965); Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460-461 (D.C. Cir. 

1994); Secretary of Labor v. Cannelton Industries, Inc., 867 F.2d 1432, 1435 (D.C. Cir. 1989); 

and Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1414-1415 (l01

h Cir. 1984) 

I find however that the premise for Secretary's deference argument, i.e., that the meaning of the 

regulation is not plain, does not exist. When the meaning of a statutory or regulatory provision is 

plain, effect must be gi~en to its language. Chevron US.A. Inc. v N.R.D.C., 467 U.S. 837, 843-

45 (1984). 

The Secretary also argues that a statute or regulation that is intended to protect the health 

and safety of individuals, such as the regulation at issue herein, must be interpreted in a broad 

manner to actually achieve that goal citing Cannelton Industries, 867 F. 2d at 1435. Donovan v. 

Stafford Const. Co., 732 F. 2d 954, 959-960 (D.C. Cir. 1984); and Brennan v. OSHRC, 491 F. 2d 

1340, 1344 (2"d Cir. 1974). This rule of construction is not without limit however and is not a 

license to rewrite a clearly worded regulation whose plain meaning cannot reasonably be 

disputed. 

Therefore, considering the plain language of Section 7.90, there is nothing to preclude the 

use on the cited diesel engines of approval markings supplied by Freeman United itself. 

Accordingly there are no violations as alleged in the citations at bar. Under the circumstances, 

Freeman United's Motion for Summary Decision must be granted and the Secretary's Cross 

Motion for Summary Decision must be denied. 

ORDER 

Citation Nos. 7584882, 7584883, 7584884 and 7584885 are hereby vacated. 

. t" \v'vvv~ 

Distribution: 

Gary M lie~"­ Adminis ra~ve La~ Judge 

Timothy M. Biddle, Esq., Edward Green, Esq., Crowell & Moring, LLP, 1001 Pennsylvania 

Ave., N.W., Washington, D.C. 20004 (Certified Mail) 

Sheila Cronan, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Suite 

400, Arlington, VA 22203 (Certified Mail) 

\mca 

1347 
1348 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

November 9, 2000 

PERFORMANCE COAL COMPANY, 

Contestant 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PERFORMANCE COAL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MARK ALLAMAN, Employed by, 

PERFORMANCE COAL COMP ANY, 

Respondent 

CONTEST PROCEEDING 

Docket No. WEVA 99-40-R 

Citation No. 4204336; 12/17/98 

Upper Big Branch Mine - South 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 99-93 

A.C. No. 46-08436-03564 

Upper Big Branch Mine-South 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 2000-28 

A.C. No. 46-08436-0350 A 

Upper Big Branch Mine-South 

ORDER GRANTING IN PART MOTION TO COMPEL 

These consolidated contest and civil penalty proceedings are scheduled for hearing on 

December 19, 2000, in Charleston, West Virginia. Before me for consideration are the 

respondents' motion to compel the disclosure of documents and the Secretary's opposition 

to the respondents' motion. Specifically, the respondents seek any statements provided to the 

Mine Safety and Health Administration (MSHA) by Johnny Williams and Rick Lilly; all 

documents concerning how and why the subject citation was specially assessed and the 

calculations related thereto; and all documents in MSHA's investigative file, with the exception 

of MSHA's investigative recommendations and any information directly covered by the 

informant or miner witness privilege. 

1349 
Consistent with my request during the course of an October 18, 2000, telephone 

conference with the parties, on November 7, 2000, the Secretary furnished the following 

documents for in camera review: 

(1) A signed statement of Johnny R. Williams obtained by MSHA on March 30, 

1999. 

(2) A March 31, 1999, memorandum of interview with Randell L. Lilly prepared 

by MSHA Special Investigator James G. Jones. 

(3) A report of an MSHA Health and Safety Conference attended by Performance 

Coal Company representatives on January 20, 1999. 

( 4) An MSHA Proposed Assessment Worksheet. 

(5) A Base Penalty Calculation for Special Assessment dated February 2, 1999. 

A. The signed statement of Johnny R. Williams 

The Secretary argues that the Williams statement is protected by the work product 

privilege. The respondents asserts the work product privilege is inapplicable because, despite the 

fact that the statement was obtained after the January 19, 1999, filing of Performance Coal 

Company's contest in Docket No. WEVA 99-40-R, it was obtained prior to the initiation of the 

captioned 1 lO(c) proceeding in Docket No. WEVA 2000-28. 

The work product privilege has been codified in Rule 26(b)(3) of the Federal Rules of 

Civil Procedure. In ASARCO, Inc., 12 FMSHRC 2548 (December 1990), the Commission 

discussed the work product privilege, stating: 

In order to be protected by this immunity under [Rule] 26(b )(3), the material 

sought in discovery must be: 

1. documents and tangible things; 

2. prepared in anticipation oflitigation or for trial; and 

3. by or for another party or by or for that party's representative. 

It is not required that the document be prepared by or for an attorney. If materials 

meet the tests set forth above, they are subject to discovery 'only upon a showing 

that the party seeking discovery has substantial need of the materials in the 

preparation of the party's case and that the party is unable without undue hardship 

1350 
to obtain the substantial equivalent of the materials by other means.' If the court 

orders that the materials be produced because the required showing has been 

made, the court is then required to 'protect against disclosure of the mental 

impressions, conclusions, opinions, or legal theories of an attorney or other 

representative of a party concerning the litigation.' 

Id. at 2558 (citations omitted). 

The burden of satisfying the three-part test is on the party seeking to invoke the 

work product privilege. Here, the Williams statement is a tangible document obtained by the 

Secretary in anticipation of litigation because it was obtained after the contest filed by 

Performance Coal Company. However, the signed statement was not "prepared" by the 

Secretary. The signed statement is entitled to the same protection from disclosure that a treatise 

obtained from the library by Secretary's counsel would be entitled to - - none. The Secretary 

cannot prevent disclosure of Williams' signed statement by asserting it is really the investigator's 

work product because it is only Williams' acknowledgment of the accuracy of what the MSHA 

investigator heard the Williams say. Since the signed statement constitutes a document 

"prepared" by Williams rather than the Secretary, the work product privilege does not apply. 

Consequently, the respondents' motion to compel the signed Williams' statement shall be 

granted. 

I note parenthetically, even if Williams' signed statement was protected under the 

work product privilege, the analysis would shift to whether the respondents have a substantial 

need for the statement, and whether depriving the respondent of these documents would 

constitute an undue hardship. P. & B. Marina, Ltd. Partnership v. Logrande. 136. F.R.D. 50, 57 

(E.D.N.Y. 1991 ), ajf'd, 983 F.2d 1047 (2d Cir. 1992). While assertions that protected material is 

needed for general purposes of impeachment may not be sufficient to overcome the work product 

privilege, here the statement provided by Williams, the victim of a November 24, 1998, roof fall 

accident, is uniqll'e in that the statement evidences Williams' recollections less than six months 

after the accident. Consolidation Coal Company, 19 FMSHRC 1239, 1243-44 (July 1997). 

Depriving the respondents' counsel of access to recollections recorded relatively soon after the 

accident would result in a significant hardship. Thus, even if the Williams statement was 

protected, the respondents have a compelling need to examine the contents of Williams' 

statement in preparation for trial. 

Finally, Williams will be called by the Secretary as a witness in these proceedings. Even 

if a witness's signed statement is protected by privilege, such statements are routinely disclosed 

at trial in a criminal proceeding. See Jencks v. United States, 353 U.S. 657. 667-69 ( 1957); 18 

U.S.C. § 3500 (Jencks Act). In this regard, the Commission has noted, in National Labor 

Relations Board (NLRB) administrative proceedings, the NLRB itself provides at trial, for cross 

examination purposes, a witness's prior statements relative to the subject matter of his testimony. 

See Secretary of Labor olblo Donald L. Gregory, et al v. Thunder Basin Coal Company, 

1351 
15 FMSHRC 2228, 2237 (November 1993), referring to 29 C.F.R. § 102. l 18(b)-(d) (NLRB 

"Jencks" procedure). Thus, the privilege issue notwithstanding, the Secretary would be 

compelled to produce Williams' statement at trial. 

B. MSHA investigator Jones' March 31. 1999. memorandum 

of Lilly interview 

With respect to the work product question, the Secretary's memorandum containing 

Jones' recollections of his March 31, 1999, interview with Randell L. Lilly is in stark contrast to 

the Williams statement. Unlike the Williams statement, the Jones memorandum was indeed 

prepared on behalf of the Secretary in contemplation of litigation. It contains the recollections of 

Jones concerning what Jones was told by Lilly. Accordingly, the Jones memorandum is 

protected by the work product privilege. 

C. The January 20. 1999. MSHA Health and Safety Conference Report 

The Secretary seeks protection of the January 20, 1999, MSHA Health and Safety 

Conference Report on the basis of the work product and deliberative process privileges. The 

conference was attended by officials of Performance Coal Company. The dispositive question 

concerning the applicability of the work product privilege is whether the document was 

"prepared in anticipation oflitigation or for trial." Whether these documents are privileged 

because they were prepared with litigation in mind must be based on the nature of the documents 

and the factual situation in each particular case. ASARCO, 12 FMSHRC at 2558. If the 

documents can fairly be said to have been prepared because of the prospect of litigation, then 

the documents are covered by the privilege. Id. [citing Wright & Miller, Federal Practice and 

Procedure§ 2024 p.198-99 ( 1970)]. If, on the other hand, litigation is contemplated but the 

document was prepared in the ordinary course of business rather than for the purposes of 

litigation, it.is not protected. Id. In addition, particular litigation must be contemplated at the 

time the document is prepared in order for the document to be protected. Id. 

The question is whether MSHA reports of a safety and health conferences are routinely 

prepared in the ordinary course of business without regard to whether litigation is contemplated. 

In addressing this question, it is necessary to analyze MSHA's procedures for health and safety 

conferences contained in 30 C.F.R. § 100.6. Operators that elect not to contest citations may 

decide not to request a safety and health conference. Safety and health conferences are only 

conducted, subject to MSHA's approval, upon an operator's request. 30 C.F.R. §§ 100.6(b) and 

( c ). Such conferences are the means by which operators may submit mitigating information 

including facts that operators believe warrant a finding that no violation occurred. 30 C.F.R. 

§ 100.6( e ). Citations that are not vacated are referred by the safety and health conference official 

to the Office of Assessments with the inspector's evaluation as a basis for determining the 

appropriate amount of civil penalty to be assessed. 30 C.F.R. §§ 100.6(f) and (g). 

1352 
Thus, generally, only contested citations are the subjects of safety and health conferences. 

Moreover, the MSHA official conducting the conference uses the information submitted by the 

operator as a basis for the referral to the Office of Assessments. Upon receipt of a notice of 

proposed penalty issued by the Office of Assessments, the operator has 30 days to pay or contest 

the proposed penalty. 30 C.F.R. § 100.7(b). In essence, the safety and health conference is the 

initial step in the litigation process if the operator contests the proposed civil penalty. 

Consequently, such conferences are not routinely conducted, but rather, they are conducted when 

an operator challenges the initial citation. Accordingly, the reports of such conferences are 

protected by the work product privilege. 

Having concluded that health and safety conference reports are protected, the analysis 

shifts to whether the respondents can overcome the privilege by demonstrating a substantial need 

for the information, and establishing that it will suffer an undue hardship if it must attempt to 

obtain the information by other means. It is difficult for the respondents to make such a showing 

since officials of Performance Coal Company attended the safety conference. Consequently, the 

respondents have failed to overcome the work product privilege. Thus, the motion to compel the 

safety and health conference report shall be denied. Having determined the health and safety 

conference report is protected by the work product privilege, I need not address the Secretary's 

assertion that it is also protected by the deliberative process privilege. 

D. The MSHA Proposed Assessment Worksheet 

The Secretary contends the Proposed Assessment Worksheet is protected by the 

deliberative process privilege. The Commission has defined the deliberative process privilege as 

one which "attaches to inter- and intra-agency communications that are part of the deliberative 

process preceding the adoption and promulgation of an agency policy." In re: Contests of 

Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 992 (June 1992) [quoting 

Jordan v. United States Dep 't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)]. The Proposed 

Assessment Worksheet contains mental impressions and opinions concerning the degree of 

gravity associated with the subject violation as well as the degree of culpability attributable to the 

respondents. It contains recommendations concerning the appropriate civil penalties that should 

be proposed. Consequently, the Proposed Assessment Worksheet is protected by the deliberative 

process privilege. 

E. Base Penalty Calculation for Special Assessment 

The Base Penalty Calculation for Special Assessment is a computer generated form that 

contains the special assessment penalty criteria relied upon by the Secretary as well as a history 

of previous similar violations. This form contains data without any opinion or impressions of 

MSHA personnel. It is apparently generated in the normal course of business to determine the 

appropriate penalty to be assessed regardless of whether the citation is contested. As such, this 

form is not protected by the deliberative process or work product privileges. Consequently, the 

1353 
respondents' motion to compel the Base Penalty Calculation for Special Assessment fonn shall 

be granted. 

Finally, the respondents' motion to compel all documents in MSHA's investigative file 

not otherwise protected by privilege shall be denied because it is overly broad. 

ORDER 

Consistent with the above discussion, IT IS ORDERED that the respondents' 

motion to compel with respect to the March 30, 1999, statement of Johnny R. Williams and the 

Base Penalty Calculation for Special Assessment dated February 2, 1999, IS GRANTED. 

IT IS FURTHER ORDERED that the Secretary provide the respondents with copies of 

the Williams statement and the Base Penalty Calculation for Special Assessment within ten days 

of the date of this Order. 

IT IS FURTHER ORDERED that the respondents' motion to compel the 

March 31, 1999, Jones memorandum of Lilly interview, the January 20, 1999, Health and 

Safety Conference Report, the MSHA Proposed Assessment Worksheet, and all MSHA 

investigative documents not otherwise protected by privilege IS DENIED. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

Mark Heath, Esq.~ Heenan, Althen & Roles, One Valley Square, Suite 1380, 

P.O. Box 2549, Charleston, WV 25329 (Certified Mail) 

Emily Goldberg-Kraft, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 516, 

Ballston Towers #3, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

/mh 

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FEDERAL M INE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 Skyline, Suite 1000 

SECRETARY OF L~OR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

November 14, 2000 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 2000-46-M 

A. C. No. 30-03197-05505 

Phillipsport Pit 

METRO RECYCLING AND CRUSHING, 

INC., 

Respondent 

ORDER GRANTING MOTION TO AMEND PLEADINGS 

This case is before me on a Petition for Assessment of Civil Penalty pursuant to section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). It concerns one 

citation and two orders arising out of a fatal mine accident. The Secretary has moved to amend 

Citation No. 7716911 to allege alternative sections of the regulations. The Respondent opposes 

the motion. For the reasons set forth below, the motion is granted. 

Citation No. 7716911 charges a violation of section 56.14202 of the regulations, 3.0 

C.F.R. § 56.14202, because: 

A fatal mine accident occurred at this operation on March 

18, l999, when the plant superintendent was caught in an 

unguarded return roller on the discharge conveyor from the 

portable screening plant. He was cleaning the roller while the 

conveyor was running. Cleaning the roller while the belt was 

running exhibited_ a serious lack of reasonable care constituting 

more than ordinary negligence and is an unwarrantable failure to 

comply with a mandatory safety standard. 

Section 56.14202 requires that: "Pulleys of conveyors shall not be cleaned manually while the 

conveyor is in motion." 

Stating that there "may be some legal and factual controversy" concerning the definition 

of "pulley" in section 56.14202, the Secretary proposes to amend the citation to allege that the 

conduct violates section 56.14202 or section 56.14105, 30 C.F.R. § 56.14105. Section 56.14105 

provides, in pertinent part, that: "Repairs or maintenance of machinery or equipment shall be 

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performed only after the power is off, and the machinery or equipment blocked against hazardous 

motion." 

The company argues that allowing the Secretary to plead in the alternative would violate 

the provisions of section 104(a) of the Act, 30 U.S.C. § 814(a), and would be unfair and 

prejudicial. Neither of these arguments is persuasive. 

Section 104(a) provides, in pertinent part, that: "Each citation shall be in writing and 

shall describe with particularity the nature of the violation, including a reference to the provision 

of the Act, standard, rule, regulation, or order alleged to have been violated." The Respondent 

asserts that this requires that the Secretary identify the standard alleged to have been violated 

with particularity. However, what has to be described with particularity is the nature of the 

violation, not the standard. Under the proposed amendment, the description of the violation 

would remain unchanged. Furthermore, even if the standard violated has to be described with 

particularity, the proposed amendment accomplishes that purpose by referring to the two 

standards alleged to have been violated. 1 

Although there is no provision for amending citations in the Commission's Rules, the 

Commission has held that the modification of a citation or order is analogous to an amendment 

of pleadings under Fed. R. Civ. P. 15(a).2 Wyoming Fuel Co., 14 FMSHRC 1282, 1289 (August 

1992); Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990). The Commission has further 

noted that: 

In Federal civil proceedings, leave for amendment "shall be 

freely given when justice so requires." Fed. R. Civ. P. 15(a). The 

weight of authority under Rule 15(a) is that amendments are to be 

liberally granted unless the moving party has been guilty of bad 

faith, has acted for the purpose of delay, or where the trial of the 

issue will be unduly delayed. See 3 J. Moore, R. Freer, Moore's 

Federal Practice, Par. 15.08[2], 15-47 to 15-49 (2d ed. 1991) .... 

And, as explained in Cyprus Empire, legally recognizable 

1 On the other hand, this provision of the Act would prohibit what the operator claims is 

the logical result of permitting the Secretary to plead alternatively, that the Secretary "could just 

allege a violation of 30 C.F.R.," because then there would be no reference to the standard alleged 

to have been violated. 

2 The Commission's Procedural Rules provide that on questions of procedure not 

regulated by the Act, the Commission's Rules, or the Administrative Procedure Act, 5 U.S.C. 

§ 551 et seq., the Commission and its Judges shall be guided by the Federal Rules of Civil 

Procedure, "so far as practicable." 29 C.F.R. § 2700.l(b) 

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prejudice to the operator would bar otherwise permissible 

modification. 

Wyoming Fuel, 14 FMSHRC at 1290. 

In this case, there is no evidence that the Secretary is acting in bad faith or is seeking 

amendment for the purpose of delay. Nor does it appear, and indeed there is no argument, that 

the trial will be unduly delayed. It is scheduled to begin on December 19, 2000, and there does 

not appear to be any reason why it will not begin on that date. The Respondent, however, argues 

that it will be prejudiced by the modification because its ability to defend itself by demonstrating 

that no violation of section 56.14202 occurred will be nullified. 

In the first place, the fact that it may have a defense to a violation of section 56.14202, 

but, perhaps, not to a violation of section 56.14105, does not demonstrate that the company will 

be prejudiced by allowing the amendment. As the Commission has long recognized: ''The 1977 

Mine Act imposes a duty upon operators to comply with all mandatory safety and health 

standards. It does not permit an operator to shield itself from liability for a violation of a 

mandatory standard simply because the operator violated a different, but related, mandatory 

standard." El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (January 1981). Secondly, the 

prejudice that would warrant denial of the modification of the citation is prejudice resulting from 

delay, or if the amendment involves a new theory of violation or requires additional discovery. 

See generally 3 James W. Moore et al., Moore's Federal Practice,§ 15.15(2], (3d ed.1997). 

In this case, there is no indication or allegation that any of this type of prejudice would 

occur. As noted above, there should be no delay. Nor does the amendment involve a new theory 

of violation. The factual allegations remain the same. Whether a violation of section 56.14202 

or of section 56.14105, the matter will be decided on the language, "[h]e was cleaning the roller 

while the conveyor was running." In this regard, section 56.14202 is essentially an included 

offense in section 56.14105. For this reason, no extensive, additional discovery should be 

required. Thus, the Respondent has not demonstrated that it will be prejudiced by the 

modification. 

In addition, it is clear that the Secretary could have moved to amend the citation to allege 

a violation of 56.14105 instead of section 56.14202 and, as discussed above, the company would 

have no apparent valid objection to such an amendment. Furthermore, if the Government 

proceeded to trial on the citation as alleged, it would appear that Fed. R. Civ. P. 15(b) would 

1357 
permit it to move to amend the citation to conform to the eviqence adduced at the trial.3 Faith 

Coal Co., 19 FMSHRC 1357, 1362 (August 1997). 

Finally, Fed. R. Civ. P. 8(e)(2) specifically provides that: "A party may set forth two or 

more statements of a claim or defense alternately or hypothetically, either in one count or defense 

or in separate counts or defenses." Since the Federal Rules affirmatively permit alternative 

pleadings, the Secretary has a good reason for pleading in the alternative and the Respondent has 

not presented any valid reason why the modification should not be permitted, it is clear that the 

citation may be amended as requested. 

Accordingly, the Secretary's Motion to Amend Pleadings is GRANTED and it is 

ORDERED that Citation No. 7716911 is MODIFIED to allege that the operator violated either 

section 56.14202 or section 56.14105 of the regulations. 

3 Fe.d. R. Civ. P. 15(b) provides that: 

tfr~~ Administrative Law Judge 

(703) 756-6213 

When issues not raised by the pleadings are tried by express 

or implied consent of the parties, they shall be treated in all 

respects as if they had been raised in the pleadings. Such 

amendment of the pleadings as may be necessary to cause them to 

conform to the evidence and to raise these issues may be made 

upon motion of any party at any time, even after judgment; but 

failure so to amend does not affect the result of the trial of these 

issues. If evidence is objected to at the trial on the ground that is 

not within the issues made by the pleadings, the court may allow 

the pleading to be amended and shall do so freely when the 

presentation of the merits of the action will be subserved thereby 

and the objecting party fails to satisfy the court that the admission 

of such evidence would prejudice the party in maintaining the 

party's action or defense upon the merits. The court may grant a 

continuance to enable the objecting party to meet such evidence. 

1358 
Distribution: (Certified Mail) 

Suzanne Demitrio, Esq., Office of the Solicitor, U.S. Department of Labor, E-375, John F. 

Kennedy Federal Building, Boston, MA 02203 

Thomas C. Means, Esq., Crowell & Moring, LLP, 1101 Pennsylvania Avenue, N.W., 

Washington, D.C. 20004 

Int 

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