JULY 1992 ---·-~-

COMHISSION DECISIONS 

07-02-92 

07-09-92 

07-14-92 

07-28-92 

07-03-92 

Jim Walter Resources, Inc. 

Paul Shirel 

Peabody Coal Company 

Nest, Inc. 

Warren Steen Construction, etc. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

07-01-92 Boswell v. National Cement 

07-06-92 UMWA, Local 2244 v. Hat hies Coal 

07-07-92 Young Brothers 

07-07-92 Ramar Coal Company, Inc. 

07-10-92 Hickory Coal Company 

07-15-92 Garratt Company 

Co. 

Co. 

07-15-92 Vogt v. N.A. trom(Partial 

07-20-92 Shannopin Company 

07-24-92 Mid-Continent Resources, Inc. 

07-30-92 ZCA Mines, Incorporated 

ADMINISTRATIVE LAW JUDGE ORDERS --- -

07-09-92 

07-17-92 

07-31-92 

Contests of rable Dust 

Contests of irable Dust Samples 

Energy Fuels Coal Inc. 

Dec,) 

SPECIAL 92-01 

KENT 92-73 

KENT 91-1231 

WEVA 91-293-R 

LAKE 89-68-M 

SE 90-112-DM 

PENN 91-108-C 

CENT 91-221-N 

VA 91-69 

PENi\I 92-16 

WEST 91-27-H 

WEST 92-225-DM 

PENN 91--1398 

WEST 91-580 

YORK 92-40-H 

No. 91-1 

No. 91-1 

WEST 92-102 

Pg. 1113 

1115 

. 1117 

Pg. 1119 

Pg. 1125 

. 1135 

Pg. 1138 

Pg. 1139 

Pg. 1145 

Pa b' 1160 

Pg. 1163 

1177 

1178 

Pg. 1197 

Pg. 1199 

1203 

Pg. 1210 

Pg. 1223 

JULY 1992 

Review was granted in the f_ol_lowing cases during the month of July: 

Secretary of Labor, MSHA v. S & H Mining Inc., Docket No. SE 91-32. 

(Judge Fauver, May 26, 1992) 

BethEnergy Mines, Inc. v. Secretary of Labor, HSHA, Docket Nos. PENN 89-277-R, 

PENN 89-278-R. (Judge Fauver, 27, 1992) 

Secretary of Labor, MSHA v. Paul Shirel, Docket No. KENT 92-73. (Default 

Order of June 17, 1992, Chief Judge Merlin not published) 

VP-5 Mining Company, Inc. v. Secretary of Labor, MSHA, Docket Nos. 

VA 92-112-R through VA 92-115-R. (Judge Melick, June 22, 1992) 

Review was denied in the following cases during the month of July: 

Charles Smith v. KEM Coal Company, Docket No. KENT 90-30-D. (Judge Fauver, 

May 28, 1992) 

Contest of Respirable Dust Samples, ~aster Docket No. 91-1. (Judge 

Broderick, Interlocutory Review of May 22, June 12, and June 18, 1992 Orders) 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JIM WALTER RESOURCES, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 2, 1992 

Docket No. SPECIAL 92-01 

ORDER 

On June 25, 1992, counsel for Jim Walter Resources, Inc. ("JWR"), 

submitted for filing with the Commission's Office of Administrative Law 

Judges a document entitled "Notice of Contest and Motion for Partial Relief 

from Final Order." A corrected cover page to the motion, submitted on June 

26, 1992, makes clear that the motion is intended to be lodged with the 

Commission itself. Essentially, the motion seeks to reopen an unspecified 

number of uncontested and closed cases in which JWR paid civil penalties 

proposed by the Department of Labor's Mine Safety and Health Administration 

("MSHA"). The asserted grounds for relief are that the penalties were 

proposed, in part, on the basis of MSHA's Program Policy Letter No. P90-III-4 

(May 29, 1990), which the Commission concluded could be "accorded no legal 

we or effect" in 14 FMSHRC 661, 690 (May 1992), and related 

cases. 

Subsequent to JWR's submission, the American Mining Congress ("AMC") 

submitted a motion to participate in this matter as an amicus curiae on the 

side of JWR. Counsel for the Secretary of Labor then submitted an unopposed 

~otion requesting an enlargement of time in which to file a statement in 

opposition to JWR's motion. 

For administrative purposes only, this matter, which involves unique 

issues possibly affecting a large number of closed penalty matters, will be 

assigned the docket reference "No. Special 92-01." The parties' various 

papers are hereby accepted for filing under that docket number. The 

assignment of a docket number and acceptance for filing does not mean, nor is 

meant to suggest, that the Commission has determined that it possesses 

jurisdiction in this matter or is thereby ruling on any issues raised in the 

parties' papers. 

The Com.mission has determined administratively that counsel for the 

Secretary of Labor has no objection to the AMC's amicus participation. The 

AMC's motion adequately sets forth the basis of its interest in this matter 

and why its participation would be desirable. Cf. Fed. R. App. P. 29. Upon 

consideration of the AMC's motion, it is granted and the AMC is hereby 

1113 
permitted to participate as amicus in this proceeding. 

Upon consideration of the Secretary's motion for enlargement of time, 

it is granted and the Secretary has until July 27, 1992, to file her 

statement of opposition in this matter. 

Distribution 

David H. Smith, Esq. 

J. Alan Truitt, Esq. 

For the Commission: 

~~ Chairman 

l".iaynard, Cooper, Brierson & Gale, P.C. 

1901 Sixth Avenue North 

2400 l\.rnSouth/Harbert Plaza 

Birmingham, AL 35203-2602 

Harold Rice, Esq. 

Stanley :!'farrow, 

Jim Walter Resources, Inc. 

P.b. Box 133 

Brookwood, Alabama 35444 

James A. Lastowka, Esq. 

Robert C. Gombar, Esq. 

Jones, Day, Reavis & Pogue, for ANC 

Hetropolitan Square 

1450 G Street, N.W. 

Washington, D.C. 20005-2088 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

1114 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PAUL SHIREL 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 9, 1992 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. KENT 92-73 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Com.missioners 

ORDER 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et .§.fill. (1988) ("Mine Act"). On June 17, 

1992, Com.mission Chief Administrative Law Judge Paul Merlin issued an Order of 

Default, finding respondent Paul Shirel ("Shirel") in default for failure to 

answer the civil penalty proposal of the Secretary of Labor ("Secretary") and 

the judge's order to show cause. The judge assessed the civil penalty of 

$1,000 proposed by the Secretary. For the reasons that follow, we vacate the 

default order and remand this case for further proceedings. 

The judge's jurisdiction over this case terminated when his decision was 

issued on June 17, 1992. 29 C.F.R. § 2700.65(c). Under the Mine Act and the 

Commission's procedural rules, relief from a judge's decision may be sought by 

filing a petition for discretionary review with the Commission within 30 days 

of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). 

Shirel filed a timely petition, with supporting affidavits, with the 

Commission on June 29, 1992, seeking relief from the judge 1 s default order. 

He petitions for review on the grounds that neither he nor his counsel had 

received the petition for civil penalty or the judge's order to show cause. 

Shirel further asserts that he had placed the Commission and the Office of the 

Solicitor of Labor ("Solicitor") on notice of his contest of the proposed 

civil penalty, and of his representation by counsel, by filing an answer prior 

to the Secretary's filing of the petition for civil assessment. A certificate 

of service attached to the answer indicates that it was served by Shirel 1 s 

counsel on the Commission and on the Solicitor's Office in Arlington, 

1115 
Virginia, in early November, prior to the filing of the Secretary's civil 

penalty petition. 

On the basis of the present record, we are unable to evaluate the merits 

of Shirel's position. In the interest of justice, we will permit him to 

present his position to the judge, who shall determine whether final relief 

from the default order is warranted. See,~. Kelley Trucking Co., 8 FMSHRC 

1867 (December 1986). 

Accordingly, we vacate the judge's default order and remand this matter 

for further proceedings. 

Distribution 

Flem Gordon, 

Gordon & Gordon 

P.O. Box 1305 

Madisonville, Kentucky 42431-1305 

Lisa A. Gray, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W. 

Suite 600 

Washington, D.C. 20006 

1116 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PEABODY COAL COMPANY 

BY THE COMMISSION: 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, 0.C. 20006 

July 14, 1992 

Docket No. KENT 91-1231 

ORDER 

This matter arises under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (1988) and involves an alleged violation of 30 C.F.R. 

§ 75.301 by Peabody Coal Company ("Peabody"). After an adverse decision by 

the Commission administrative law judge, Peabody filed a Petition for 

Discretionary Review, which the Commission granted. Subsequently, the 

Secretary filed a Notice of Intent to Vacate Citation and Request Dismissal 

and a subsequent Motion to Dismiss Appeal. In the Notice of Intent, the 

Secretary explained that the Department of Labor's Mine Safety and Health 

Administration ("MSHA") promulgated a final rule, scheduled to take effect on 

August,16, 1992, that will effectively moot the issues raised in the instant 

case and that continued litigation of this case risks confusion and a waste of 

resources. On June 15, 1992, MSHA vacated the disputed citation. Peabody has 

indicated that it has no objection to the granting of the Secretary's motion. 

we conclude that adequate reasons have been presented supporting 

vacation of the underlying citation and dismissal of this proceeding, and 

grant the motion. ~' Climax Molybdenum Co., 2 FMSHRC 2748, 2750 

(October 1980); Youghiogheny & Ohio Coal Co., 7 FMSHRC 200, 203 (February 

1985); BethEnergy Mines. Inc., 12 FMSHRC 1751, 1753-54 (September 1990). 

1117 
Accordingly, the citation involved in this proceeding and the assessed 

civil penalty are vacated with prejudice. The Commission's direction for 

review is vacated and this proceeding is dismissed. 

Distribution 

H., Christian Schumann, Esq. 

Tina Gorman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

David R. Joest, Esq. 

Peabody Coal Company 

P.O. Box 1990 

Henderson, KY 42420-1990 

Richard V. Backley, Commissioner 

Joye~ c~ •• tb4 

~ieneer 

L. Clair Nelson, Commissioner 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesbur£ Pike, Suite 1000 

Falls Church, Virginia 22041 

1118 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 28, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEVA 91-293-R 

EAGLE NEST, INCORPORATED 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

This contest proceeding arises under the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"). At issue is whether 

a violation by Eagle Nest, Incorporated ("Eagle Nest") of 30 C.F.R. 

§ 75.305, for water accumulations in a longwall tailgate return entry, was 

significant and substantial in nature ("S&S"). 1 Commission Administrative 

Law Judge Avram Weisberger concluded that Eagle Nest violated the regulat~on 

but that the violation was not S&S. 13 FMSHRC 843 (May 199l){ALJ). We 

granted the Secretary of Labor's petition for discretionary review. For the 

reasons that follow, we vacate the judge's finding that the violation was not 

S&S and remand for further proceedings consistent with this decision. 

1 30 C.F.R. § 75.305 provides, in part, as follows: 

[E]xaminations for hazardous conditions, 

including tests for methane, and for compliance 

with the mandatory health or safety standards, 

shall be made at least once each week by a 

certified person designated by the operator in 

the return of each split of air where it enters 

the main return, on pillar falls, at seals, in 

the main return, at least one entry of each 

intake and return aircourse in its entirety, 

idle workings, and, insofar as safety 

considerations permit, abandoned areas .... The 

person making such examinations and tests shall 

place his initials and the date and time at the 

places examined, and if any hazardous condition 

is found, such condition shall be reported to 

the operator promptly. Any hazardous condition 

shall be corrected immediately .... 

1119 
I. 

Factual Background and Procedural History 

Eagle Nest's underground coal mine is located in Boone County, West 

Virginia. The mine has had a history of water accumulation problems. 

Although Eagle Nest has taken measures to address these problems, water 

accumulation at the mine has nonetheless persisted. 

In the context of the present proceeding, water accumulated in the 

tailgate return entry of longwall panel A. Eagle Nest had placed four water 

pumps at locations where it was anticipated that water would collect. The 

pumps were connected to ten inch water lines that carried the water away from 

the entry. 

On March 14, 1991, accumulations in the entry of water four feet deep 

were reported in the mine's weekly examination book. The following day, 

mining began in longwall panel A. On March 19, 1991, Eagle Nest's longwall 

coordinator traveled the entry to conduct an examination and experienced 

accumulations of water up to his shirt pocket (about four feet high). 

On March 20, 1991, Mine Safety and Health Administration ("MSHA") 

Inspector Ronnie Joe Dooley made a spot inspection of the longwall A panel. 

Dooley traveled along the tailgate return entry outby the face, with union 

representative Franklin Miller and the general mine foreman Jim Lambert. 

Dooley wanted to see whether the entry was safe for travel by the examiner 

conducting the weekly examination required under section 75.305. After 

travelling approximately 600 to 700 feet in the tailgate entry, Dooley, 

Miller, and Lambert encountered an area of water accumulation extending from 

rib to rib (approximately 20 feet). 2 

At spad No. 3777, the water reached the top of Dooley's 16 inch boots. 

Dooley stopped, concluding that it was not safe to proceed. The water hole 

extended as far as Dooley could see, at least 200 feet outby where he stopped. 

0ooley asked Lambert whether it was possible to reach the other side of the 

water accumulation by traveling up the entry from the mouth end, but was told 

that there were other water accumulations that would prevent the inspection 

party from reaching that point. 

Dooiey concluded that the weekly examiner traveling the entry would be 

exposeci to slipping, stumbling, and falling hazards due to water 

accumulations. His task would be made more difficult by submerged lumps of 

coal, rocks, remnants from concrete stoppings, the ten inch water line, and 

pieces of wood from cribs and pallets. According to Dooley, the water was 

murky and the bottom could not be seen. Dooley was additionally concerned 

about slick mud, cracks in the bottom of the entry (hooving), and 

accumulations of mud where the examiner's boots could become stuck. Dooley 

emphasized that the examiner traveling through the entry would be at the same 

time inspecting for hazardous conditions, such as entry blockage, ventilation 

hazards, and methane, as well as observing the condition of the roof and ribs. 

Tr. 28. 

2 The travelway itself was reduced to approximately five feet in width 

because there were cribs on each side of the entry. 

1120 
Accordingly, Dooley issued Eagle Nest a section 104(a) citation for 

violation of section 75.305 as follows: 

At least one entry of the longwall tailgate 

return entry could not be made safely in its entirety. 

Water has accumulated in depth exceeding 16 inches at 

Survey Spad [N]o. 3777 and various locations outby. 

This condition creates a hazard to those persons 

required to make weekly examinations. 

S. Exh. 2. Dooley also found the violation to be S&S. 3 

On March 21, 1991, Eagle Nest attempted an examination of the entry but 

the presence of water prevented the examiner from proceeding beyond the No. 14 

stopping. According to Dooley, the No. 14 stopping was approximately 2,000 

feet outby spad 3777. 4 

Judge Weisberger found that the accumulation of water presented a hazard 

to those miners who.would have to t:raverse it to make an examination. 13 

FMSHRC at 846. He also found that this hazardous condition had been initially 

observed on March 14, 1991, again on March 19, 1991, and had not been 

corrected as evidenced by its continued existence on March 20, 1991. Id. The 

judge consequently found that Eagle Nest violated section 75.305 as alleged. 

Id. 

The judge found, however, that the violation was not S&S. 13 FMSHRC at 

847. He concluded that the Secretary had failed to establish a reasonable 

likelihood that an injury due to falling or slipping would occur. Id. 

Although a stumbling or falling hazard was present due to the depth and murky 

nature of the water accumulation, according to the judge, the hazard could be 

mitigated by walking cautiously to feel for submerged objects so that they 

could be avoided. 

II. 

Disposition of Issues 

On review, the Secretary submits that the judge erred in concluding that 

the violation was not S&S. The Secretary argues that the judge erred in 

finding that the water hazard was not reasonably likely to result in slipping, 

stumbling, or falling as the examiner attempted to make his way through the 

3 The term significant and substantial is taken from section 104(d) of 

the Mine Act, which distinguishes as more serious in nature any violation that 

"could significantly and substantially contribute to the cause and effect of a 

mine safety or health hazard .... " 30 U.S.C. § 814(d)(l). 

4 The citation was terminated on April 12, 1991, after the water had 

been pumped down to a safe level and Eagle Nest had built wooden bridges over two 

places where the water was more than 16 inches deep. It appears that one of the 

bridges was built in the area of accumulation that Dooley observed. See Tr. 244. 

1121 
travelway. The Secretary disputes the judge's conclusion that the hazard 

could be mitigated by exercising caution. We vacate the judge's finding of 

non S&S for legal error. 

A violation is properly designated as S&S "if, based on the particular 

facts surrounding that violation, there exists a reasonable likelihood that 

the hazard contributed to will result in an injury or illness of a reasonably 

serious nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission explained: 

In order to establish that a violation of a mandatory 

safety standard is significant and substantial under 

National Gypsum, the Secretary of Labor must prove: 

(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 reaSOJ?.~ble 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. 

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)), and also that the likelihood of injury be evaluated 

in terms of continued normal mining operations (U.S. Steel Mining Co., Inc,, 

6 FMSHRC 1573, 1574 (July 1984); see also Halfway, Inc., 8 FMSHRC 8, 12 

(January 1986). The Secretary is not required to present evidence that the 

hazard actually will occur. Thus, in Youghiogheny & Ohio Coal Co., 9 FMSHRC 

673 (April 1987), the Commission held that: 

:::rr order to establish the significant and 

substantial nature of the violation, the Secretary 

need not prove that the hazard contributed to actually 

will result in an injury causing event. The 

Commission has consistently held that proof that the 

injury-causing event is reasonably to occur is 

what is required. ~, TI. S, Steel Mining Co, , 7 

FMSHRC at 1125; U.S. Steel Mining Co., 7 FMSHRC 327, 

329 (March 1985). 

9 FMSHRC at 678. The question of whether any particular violation is S&S must 

be based on the particular facts surrounding the violation. Texasgulf, Inc., 

10 FMSHRC 498, 501 (April 1988). 

With regard to the first and second elements of the Mathies test, the 

judge's findings of a violation of section 75.305 and of a discrete safety 

hazard, i.e., a hazard of slipping or falling, are not in issue. With respect 

to the fourth element of the Mathies test, the likelihood that a resulting 

injury would be reasonably serious in nature, that element is also not in 

dispute. 

1122 
As to the third element of the Mathies test, whether there was a 

reasonable likelihood that the hazard of slipping or falling would result in 

an injury, the judge concluded that, although a stumbling or falling hazard 

was present due to the depth and murky nature of the water accumulation, the 

hazard could be mitigated by walking cautiously to feel for submerged objects 

so they could be avoided. 13 FMSHRC at 847. 

We reject the judge's conclusion that the "exercise of caution" may 

mitigate the hazard. In effect, the judge seeks to add another element to the 

Mathies test, i.e., that the exercise of substantial additional caution can be 

presumed and then considered in determining whether there is a likelihood of 

injury. Consistent with Commission precedent, it is the likelihood of injury 

that must be evaluated in considering whether a violation is S&S. The hazard 

continues to exist regardless of whether caution is exercised. The judge 

therefore erred when he concluded the hazard could be mitigated by caution. 

We assume that the judge meant that the likelihood of injury could be 

mitigated by caution. While miners should, of course, work cautiously, that 

admonition does not lessen the responsibility of operators, under the Mine 

Act, to prevent unsafe conditions.'· 

The judge, in resting his decision on the possibility of mitigation by 

the use of caution, failed to address comprehensively the evidentiary record 

in determining that the Secretary did not establish a reasonable likelihood 

that an injury would occur. The substantial evidence standard of review 

requires a weighing of all probative record evidence and an examination of the 

fact finder's rationale in arriving at the decision. See Universal Camera 

Gorp. v. NLRB, 340 U.S. 474, 487 (1951); Arnold v. Secretary of HEW, 567 F.2d 

258, 259 (4th Cir. 1977). A judge must analyze and weigh the relevant 

testimony of record, make appropriate findings, and explain the reasons for 

his decision. Anaconda Co., 3 FMSHRC 299, 299-300 (February 1981). 

Accordingly, we vacate the judge's decision and remand for further analysis 

and determination of the S&S issue without consideration of whether the hazard 

could be mitigated by the use of caution. 

1123 
III. 

Conclusion 

We conclude that the "exercise of caution" is not an element in 

determining whether a violation rises to the level of S&S, and we direct the 

judge on remand to conform to the Mathies test to substantively analyze the 

evidence of record and to set forth his rationale in his reconsideration. 

Accordingly, we vacate the judge's conclusion that Eagle Nest's 

violation of section 75.305 was not S&S and remand for further proceedings 

consistent with this decision. 

Distribution 

David J. Hardy, Esq. 

Jackson & Kelly 

PoOo Box 553 

Charleston, WV 25322 

Colleen A. Geraghty, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

~ 

~ Richard V. Backley, Commissioner ~ 

eJ?t.:1fc:mm~ 

~tl.n&ner 

L. Clair Nelson, Commissioner 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1124 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WARREN STEEN CONSTRUCTION, INC., 

AND WARREN STEEN, Employed by 

Warren Steen Construction, Inc. 

July 30, 1992 

Docket Nos. LAKE 89-68-M 

LAKE 89-93-M 

BEFORE: Ford, Chairman; Backley, Doyle, Holen and Nelson, Commissioners 

DECISION 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). The issues are: 

(1) whether Warren Steen Construction, Inc. ("W.S.C.") violated.30 C.F.R. 

§ 56.120711 when it operated a stacker-conveyor2 near energized high-voltage 

power lines and, if so, whether that violation was caused by its unwarrantable 

failure to comply with the standard; (2) whether Warren Steen (usteen") is 

individually liable under section llO(c) of the Mine Act, 30 U.S.C. § 820(c), 

for authorizing the alleged violation; and, (3) whether the civil penalties 

assessed against W.S.C. and Mr. Steen are supported by substantial evidence. 

Following an evidentiary hearing, Commission Administrative Law Judge James A. 

Broderick concluded that W.S.C. had violated section 56.12071, that the 

violation had been caused by its unwarrantable failure, and that Steen was 

individually liable for the violation. 13 FMSHRC 256 (February 199l)(ALJ). 

The judged assessed an $8,000 civil penalty against W.S.C. for the violation 

1 30 C.F.R. § 56.12071, a mandatory safety standard applicable to surface 

metal and nonmetal mines, provides, "[w]hen equipment must be moved or operated 

near energized high-voltage powerlines (other than trolley lines) and the 

clearance is less than 10 feet, the lines shall be deenergized or other 

precautionary measures shall be taken." 

2 A stacker-conveyor is an adjustable piece of equipment that can be raised 

or lowered with a hydraulic system located on the "stacker"; it was used by W.S. 

Construction to convey sand and gravel up to stockpiles. Tr. 13. 

1125 
of section 56.12071 involving the stacker-conveyor 3 and assessed a civil 

penalty against Steen in the amount of $5,000. For the reasons set forth 

below, we affirm the judge's decision. 

I. 

Factual and Procedural Background 

At all times relevant to this case, W.S.C. operated the Steen Pit Mine, 

a sand and gravel mine located in Moose Lake, Minnesota, and Steen was the 

president and owner of W.S.C. 4 On July l, 1988, W.S.C. employees, Jack 

Hufford and Gary Jobe, attempted to move an 80-foot Nordberg stacker-conveyor 

in order to make a new row of gravel piles. The stacker-conveyor was first 

attached with a chain to a front-end loader's bucket. Mr. Hufford, who 

operated the front-end loader, and Mr. Jobe, who walked along beside it in 

order to give Hufford directions, then began to move the stacker-conveyor by 

pulling it with the front-end loader. Hufford testified that they "started 

swinging [the stacker-conveyor] to the side to start a row of piles" and, as 

the stacker-conveyor swung back and forth, it passed near the power lines. 

Tr. 49, 50-51. 

In an attempt to stop the stacker-conveyor, Jobe threw a plank on the 

ground at the desired location, pulled the wheel up on it, and then placed a 

second piece of lumber perpendicular to the plank under the wheel and motioned 

for Hufford to stop. 5 Tr. 20, 49. The stacker-conveyor continued to roll 

over the wood, gaining momentum. Jobe pushed against the frame in an attempt 

to stop it, but the stacker-conveyor contacted the overhead power lines. Jobe 

was electrocuted as a result. 

The overhead power lines, owned by Minnesota Power & Light ("MP&L"), ran 

approximately 12,000 volts of current, and were 19 feet-9 1/2 inches above the 

ground at their lowest point. Tr. 19, 57. At the point of contact, the power 

line contacted was approximately 22 feet-1/4 inch above the ground. Tr. 19. 

The height of the stacker-conveyor at its discharge point was 23 feet. Tr. 

18. 

On July 5, 1988, the Occupational Safety and Health Administration, 

which had been informed of the accident, contacted the Department of Labor's 

Mine Safety and Health Administration ("MSHA") about the matter. Later that 

day, MSHA Inspector Jim King visited the mine and spoke with Mark Belich, an 

assistant engineer for MP&L, and with Steen's son, and took photographs. 

Inspector King testified that Mr. Belich informed him that, prior to the 

3 The judge also assessed a separate $8, 000 civil penalty for another 

violation of the same standard. 

4 Steen sold the mine on May 1, 1989. 

5 The planks used by Jobe measured 2x4 inches, and approximately four to 

five feet long, and 4x4 inches, and approximately four feet long, respectively. 

Tr. 41, 49. Jobe did not use the chock blocks that came from the manufacturer 

with the stacker. Tr. 75-76. 

1126 
accident, Steen had discussed with MP&L representatives the possibility of 

relocating the power lines so that they would not interfere with ongoing work 

at the mine. Tr. 12-13, 43. Inspector King returned to the mine on July 6, 

1988, to continue his investigation and found that the stacker-con~eyor had 

been moved to a location approximately 75 feet from the power lines. Tr. 28. 

Inspector King spoke with Steen, Hufford, and another MP&L representative 

about the accident. Based upon his investigation, Inspector King issued to 

W.S.C. a section l04(d)(l) citation alleging a significant and substantial 

("S&S") violation of section 56.12071, caused by the operator's unwarrantable 

failure to comply with the standard. 

During his investigation on July 6, Inspector King noticed that a 

feeder-conveyor was operating close to the power line. 6 Tr. 25, 28-29. 

After receiving authorization to conduct a regular inspection of the mine, 

Inspector King determined that the clearance between the feeder-conveyor and 

the power line was approximately eight feet. Inspector King then spoke with 

Steen about moving the feeder-conveyor. Steen replied that he had a few more 

weeks of work remaining at that location, and that he would move the equipment 

after he finished it. Tr. 27, 36, 82. Inspector King then issued to W.S.C. a 

section 104(d)(l) order, alleging a'secondS&S violation of section 56.12071, 

caused by the operator's unwarrantable failure. The order was terminated 

after the feeder-conveyor was shut down and moved away from the power line. 

S. Exh. 4. 

The Secretary proposed that civil penalties be assessed against W.S.C. 

in the amount of $7,000 for the alleged violation involving the stackerconveyor, and $8,000 for the alleged violation involving the feeder-conveyer. 

The Secretary also proposed that a civil penalty in the amount of $4,000 be 

assessed against Steen individually under section llO(c) of the Mine Act 

because, she alleged, he knowingly authorized, ordered, or carried out a 

violation of section 56.12071 involving the stacker-conveyor. 

Following an evidentiary hearing, the judge found that W.S.C. had 

violated section 56.12071 in both instances, and that the violations were S&S 

and caused by the operator's unwarrantable failure. He first determined that 

W.S.C. had violated the standard through its operation of the stacker-conveyor 

within 10 feet of an energized high-voltage power line, "so that the conveyor 

came in contact with the line," without the power line having been deenergized 

or other precautionary measures taken. 13 FMSHRG at 260. The judge found 

that the violation was S&S because a miner had been electrocuted as a result 

of the violation. Id. In addition, the judge concluded that the violation 

was unwarrantable and resulted from the operator's "reckless disregard" for 

the safety of miners, because the operator had been cautioned about working 

too close to the power lines before the accident, and because the operator 

should have recognized that operation of a large metal machine under a high 

voltage line is inherently dangerous. Id. The judge assessed a civil penalty 

in the amount of $8,000 against W.S.C., rather than the $7,000 penalty 

proposed by the Secretary. 

6 The feeder-conveyor was used by W. S. G. to transport material from a 

portable crushing and screening unit to a stacker-conveyor. Tr. 13-14. 

1127 
The judge also sustained the citation alleging a violation of section 

56.12071 involving the feeder-conveyor because he found that W.S.C. operated 

"the conveyor" directly below energized high-voltage power lines at a distance 

of 8 to 8 1/2 feet. Id. 7 He determined that the violation was S&S because 

it "was extremely serious and was likely to result in serious injury if mining 

had been allowed to continue." Id. He noted that the operator had 

experienced a fatal accident five days earlier as a result of the same 

condition and that, therefore, the operator had unwarrantably failed to comply 

with the standard. 13 FMSHRC at 260-61. He then assessed the proposed civil 

penalty of $8,000 against the operator. 13 FMSHRC at 261. 

Concerning Steen's individual liability under section llO(c) of the Act, 

the judge found that Steen exhibited a reckless disregard for safety and 

knowingly authorized operation of the equipment close to high-voltage power 

lines. 13 FMSHRC at 261. The judge assessed a civil penalty in the amount of 

$5000 against Steen, rather than the $4,000 penalty proposed by the Secretary. 

The Commission subsequently granted W.S.C.'s and Steen's petition for 

discretionary review, in which they dispute the stacker-conveyor violation, 

whether that violation was caused o)Tthe operator's unwarrantable failure, 

whether Steen is individually liable, and the amount of the three civil 

penalties assessed by the judge. 8 

II. 

Disposition of Issues 

A. Citation involving stacker-conveyor 

The judge found that W.S.C. violated section 56.12071 when its stackerconveyor was operated near energized high-voltage power lines, clearance was 

less than 10 feet, and the power lines had not been deenergized, or other 

adequate precautionary measures taken. The petitioners argue that these 

7 In his findings of fact, the judge stated that on July 6, 1988, "the 

stacker-conveyor was still below the energized 12,000 volt power line. It was 

approximately 8 feet directly below the line." 13 FMSHRC at 258 (emphasis 

added). The operator argues that this finding of fact is not supported by the 

evidence. P. Br. at 2. The record reveals that, in fact, the stacker-conveyor 

had been moved to a location 75 feet away from the power line but on July 6, 

1988, the feeder-conveyor was operating approximately eight feet from the power 

line. Tr. 28-29. Although the judge misspoke as to the particular conveyor, we 

conclude that his error was harmless. In this case, the specific piece of 

equipment operating near the energized power line in violation of section 

56.12071 is irrelevant. 

8 The Secretary maintains that the petitioners have not sought review of 

the finding that the stacker-conveyor violation was caused by W.S.C.'s 

unwarrantable failure. S. Br. at 5 n. 5. In fact, W. S. C. has sought review of 

this issue by disputing the judge's fourth conclusion of law, in which the judge 

determined that the stacker-conveyor violation occurred as a result of the 

operator's unwarrantable failure. P. Br. at 2; 13 FMSHRC at 260. 

1128 
findings are contrary to law and are not supported by substantial evidence. 

P. Br. at 2. We disagree. 

The evidence is undisputed that, as the stacker-conveyor swung back and 

forth while it was being moved, it passed near the energized high-voltage 

power lines. Tr. 24, 50-51. Clearance between the stacker-conveyor and the 

power lines was less than 10 feet. The height of the power lines was 

approximately 19 feet-9 1/2 inches at the lowest point and 22 feet-1/4 inch at 

the contact point, while the stacker-conveyor's discharge height was 

approximately 23 feet. Tr. 18-19. The power lines were not deenergized, and 

Inspector King testified that Jobe's use of wooden planks to control movement 

of the stacker-conveyor was an inadequate precautionary measure. Tr. 21. No 

other precautionary measures were taken. We conclude that the foregoing 

evidence constitutes substantial evidence in support of the judge's findings, 

and we affirm his determination that W.S.C. violated section 56.12071 in its 

operation of the stacker-conveyor. 

Substantial evidence also supports the judge's finding that the stackerconveyor violation was caused by W.S.C.'s unwarrantable failure to comply with 

section 56.12071. The Commission has determined that unwarrantable failure is 

aggravated conduct constituting more than ordinary negligence. Emery Mining 

Corporation, 9 FMSHRC 1997, 2004 (December 1987); Youghiogheny & Ohio Coal 

Company, 9 FMSHRC 2007, 2010 (December 1987). 

W.S.C.'s actions resulting in the stacker-conveyor violation were 

properly characterized by the judge as aggravated. It is common knowledge 

that power lines are hazardous, and the standard itself provides notice that 

precautions are required when working near power lines with heavy equipment. 

In addition, W.S.C. had been warned by MP&L representatives before the 

accident that it was operating too close to the lines. Tr. 59. The evidence 

reveals that Steen knew that the stacker-conveyor would be operated near 

energized power lines and that the clearance would be less than 10 feet. Tr. 

18 19, 24, 50-51, 79. Steen testified that the stacker conveyor had been set 

up in the cited location since the previous September 1987. Tr. 79. In fact, 

he move it to that location. Tr. 75. The record also discloses that 

w.S.C. was actually aware, through Steen, of the dangers involved in working 

around energized power lines. Steen testified that he had discussed with 

employees how to move the stacker-conveyor so as to avoid contact with the 

power lines. ~r. 72-73. Hufford also testified that he knew about the 

aangers associated with power lines from personal experience, although Steen 

had never discussed those dangers with him. Tr. 54. 

W.S.C. also had sufficient knowledge, through Steen, that adequate 

precautionary measures were not being taken, in that Steen knew that the power 

lines had not been deenergized or relocated and that no steps had been taken 

to prevent contact between the stacker-conveyor and the energized power lines. 

Tr. 16, 24, 50-51. Even if the use of chock blocks were asswn.ed to constitute 

an adequate precautionary measure, W.S.C. did not ensure that the miners were 

trained regarding their use. Jobe, who had been employed at the mine for two 

months before the accident, had never received formal training, and used 

wooden planks rather than the chock blocks, in an attempt to control the 

1129 
movement of the stacker-conveyor. Tr. 40-41, 52, 75-76. 9 

Although the operator knew of the dangers involved in operating large 

metal machinery near energized power lines, it directly exposed its miners to 

such hazards without regard for their safety and without taking precautions. 

Such conduct is aggravated, and constitutes more than ordinary negligence. 

Accordingly, we affirm the judge's finding that W.S.C.'s violation of section 

56.12071 was caused by its unwarrantable failure to comply with the standard. 

B. Section llO(c) liability 

In relevant part, section llO(c) provides: 

Whenever a corporate operator violates a 

mandatory health or safety standard ... , any director, 

officer, or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation, 

... shall be subject to .. the same civil penalties, 

fines, and imprisonment that may be imposed upon a 

person under subsections (a) and (d) of this section. 

30 U.S.C. § 820(c). The judge found that Steen had sufficient knowledge of 

the dangers associated with operating equipment near energized high-voltage 

power lines to support a finding of individual liability under section llO(c) 

of the Mine Act. 13 FMSHRC at 261. 

Preliminarily, the evidence is undisputed that at all times relevant to 

this case, W.S.C. was a corporation, and Steen was its president. Tr. 5, 68; 

S. Exh. 2. As we concluded above, substantial evidence supports the judge's 

finding that W.S.C. violated section 56.12071 through its operation of the 

stacker-conveyor. Steen challenges whether substantial evidence supports the 

judge's finding that he "'knowingly authorized" w.S.C.'s violation within the 

meaning of section llO(c). We conclude that it does. 

Steen argues that the judge's conclusion that he 11 knowingly authorized 

the violations in reckless disregard for the safety of his employees is 

without any factual basis whatsoever." P. Br. at 2. Steen maintains that he 

was not at the at the time of the accident and played no part in the 

actual events that led to the death of Jobe. P. Br. at 4. He also asserts 

that the mine had previously been inspected, apparently when the equipment was 

set up in the same location, and that no violations had been cited. P. Br. at 

5. He also argues that his discussions with MP&L centered around "some piles 

of gravel that might constitute a hazard if a front-end loader were operated 

on the piles" and that they did not discuss the stacker-conveyor. P. Br. at 

9 It should be noted that since October l, 1979, Congress, through the 

appropriations process, has prohibited MSHA from enforcing safety training 

regulations at certain types of surface nonmetal mines, including the Steen Pit 

Mine. 

1130 
2, 4. Steen further contends that he was not aware of the standard requiring 

10 feet clearance from the power line, and that he did not knowingly and 

intentionally tell his employees to position the equipment in such a fashion 

that it would be in violation of federal law. Tr. 73, 77; P. Br. at 5. We 

reject Steen's arguments. 

In order to establish section llO(c) liability, the Secretary must prove 

only that an individual knowingly acted, not that the individual knowingly 

violated the law. See, ~. United States v. Int'l Minerals & Chem. Corp., 

402 U.S. 558, 563 (1971). Steen's claimed ignorance of the law is not a 

viable defense. Id. at 563. Further, the fact that Steen was not present at 

the mine at the time of the accident is no defense to the finding that he had 

knowingly authorized the moving of the stacker-conveyor. Hufford testified 

that on the day of the accident, Steen would have been the individual who gave 

the orders to move the stacker-conveyor in order to construct new stockpiles. 

Tr. 50. As noted earlier, Steen was aware that the stacker-conveyor would be 

operated near energized power lines and that the clearance would be less than 

10 feet. Thus, it is clear that Steen knowingly authorized miners to move 

large metal machinery near energized high-voltage power lines, yet failed to 

ensure that adequate precautionary measures were taken to prevent the hazards 

associated with that procedure. 

The fact that MSHA may not have previously taken enforcement action with 

respect to the set-up of the stacker-conveyor does not obviate finding 

liability against Steen. The Commission has recognized that prior instances 

of inconsistent action by MSHA do not constitute a viable defense to 

liability. See,~. King Knob Coal Co., 3 FMSHRC 1417, 1421-22 (June 1981). 

Finally, Steen's argument that he had not been forewarned that the cited 

conduct was hazardous, because the MP&L representative did not specifically 

mention the stacker-conveyor, is unavailing; MP&L's warning was broadly 

directed to working near power lines. More importantly, the standard gives 

clear notice that operation within 10 feet of a power line requires 

precautionary measures. Accordingly, we affirm the judge's finding that Steen 

knowingly authorized w.S.C.'s actions in violation of section 56.12071, within 

the meaning of section llO{c) of the Act. 

C. Assessment of civil penalties 

w.S.C. and Steen argue that the civil penalties assessed against them 

are not supported by evidence or by law. P. Br. at 2. They emphasize that 

the record shows no prior violations, that the violations were promptly 

abated, and that the accident was not caused by reckless actions of Steen but 

occurred as a result of Jobe's negligence. 

When a judge's penalty assessment is at issue on review, the Commission 

must determine whether the penalty is supported by substantial evidence and is 

consistent with the statutory penalty criteria set forth in section llO(i) of 

the Mine Act, 30 U.S.C. § 820(i). See,~. Westmoreland Coal Co., 8 FMSHRC 

491, 492 (April 1986). Within this framework, we examine the civil penalties 

assessed by the judge against the petitioners' arguments pertaining to its 

history of previous violations, its negligence, and its good faith in 

attempting to achieve rapid compliance after notification of a violation. See 

1131 
30 u.s.c. § 820(i). 

Between July 6, 1986, and July 5, 1988, W.S.C. was cited for one 

violation of a mandatory health or safety standard, which did not involve 

section 56.12071. S-Exh. 10; Tr. 22, 74, 86. The judge found that the 

operator's history of previous violations was such that an otherwise 

appropriate penalty should not be increased because of it. 13 FMSHRC at 257. 

The judge's findings with respect to the operator's history of previous 

violations are supported by substantial evidence. 

Substantial evidence also supports the judge's negligence findings. The 

judge found that the violations committed by W.S.C. and Steen resulted from 

their "reckless disregard" for the safety of miners. 13 FMSHRC at 260-61. 

With respect to the feeder-conveyor violation, the record reveals that Steen 

knew that the feeder-conveyor was operating below an energized power line, and 

that an electrocution of one of his employees had occurred five days earlier 

when another conveyor had been moved near the power line. Tr. 26-27, 29, 51. 

Such evidence supports the judge's characterization of W.S.C.'s conduct as 

involving a high degree of negligence. 

The judge also properly characterized the petitioners' violative conduct 

involving the stacker-conveyor as involving a high degree of negligence. As 

discussed above, the operator's conduct involving the stacker-conveyor 

violation was unwarrantable, i.e., amounted to aggravated conduct constituting 

more than ordinary negligence. 

The petitioners also argue that the stacker-conveyor accident was caused 

by an employee's negligence and that the accident was unintentional. The 

Commission has found that, in some instances, an operator may be found 

negligent, even though the violation was committed by a non-supervisory 

employee. In A.H. Smith Stone, 5 FMSHRC 13 (January 1983), the Commission set 

:Zorth the following guidelines: 

The fact that a violation was committed by a nonsupervisory employee does not necessarily shield an 

operator from being deemed negligent. In this type of 

case, we look to such considerations as the 

:'.:oreseeability of the miner's conduct, the risks 

involved, and the operator's supervising, training, 

and disciplining of its employees to prevent 

violations of the standard in issue. 

5 FMSHRC at 15. 

We apply the A.H. Smith guidelines to the judge's findings and the 

record evidence involving the stacker-conveyor violation, and conclude that 

Jobe's actions were foreseeable. As discussed above, Jobe was required to 

move the stacker-conveyor near energized power lines, and the clearance 

between the power lines and the stacker-conveyor was less than 10 feet. 

Jobe's actions in using the planks to control the movement of the stackerconveyor were foreseeable because miners had used the planks in such a manner 

1132 
in the past. Tr. 53-54. Second, the risks involved in moving the stackerconveyor near an energized power line were clearly serious. The stackerconveyor swung near the power lines and there was no clearance between the top 

of the stacker-conveyor and the power lines at their lowest point. Contact 

between the energized power line and the stacker-conveyor resulted in 

electrocution. Third, the operator's supervision, training and discipline of 

its employees with respect to this standard were inadequate. No designated 

supervisor was on the premises at the time the stacker-conveyor was moved. 

Tr. 72. Jobe had been hired only two months before the accident and had not 

received any training, and no formal training had been provided to other 

employees. Tr. 52, 54, 83. There was no evidence that the operator 

disciplined employees in order to prevent violations of the standard. In sum, 

consideration of the foreseeability of Jobe's conduct, the risks involved, and 

the operator's lack of appropriate supervision, training and discipline leads 

us to conclude that the judge properly found W.S.C. negligent. 

As to Steen's individual challenge to the penalty assessed by the judge, 

we refer to our earlier discussion of the section llO(c) violation. Further, 

we concur with the judge that Steen,--an individual with 20 years of 

experience, who personally directed the operation, acted with a high degree of 

negligence in allowing the stacker-conveyor to be operated so near to the 

power lines. Thus, we disagree that the penalty imposed on Steen by the judge 

was too harsh and, we affirm it. 

The judge did not make specific findings with respect to the 

demonstrated good faith of the petitioners in attempting to achieve rapid 

compliance after notification of the violations. In such circumstances, we 

may examine the record for pertinent undisputed evidence. Sellersburg Stone 

Co., 5 FMSHRC 287 (March 1983), aff'd, Sellersburg Stone Co. v. FMSHRC, 736 

F.2d 1147, 1153 (7th Cir. 1984). The record reveals that the petitioners 

abated the stacker-conveyor citation by moving the stacker-conveyor 75 feet 

from its previous location. Tr. 28. Although the petitioners did not unduly 

abatement of the stacker-conveyor violation, their operation of the 

feeder-conveyor in the same location weighs heavily against a finding of 

demonstrated good faith compliance. When he was notified that the feederconveyor was operating too close to the power lines, Steen asked for two or 

three weeks time before he would be required to move it so that he could 

finish work in that area. Such conduct does not support a decrease in the 

civil penalties assessed the judge. 

In sum, we conclude that the three civil penalties assessed by the judge 

against W.S.C. and Steen are consistent with the statutory criteria and are 

supported by substantial evidence. Accordingly, we affirm the civil penalties 

of $16,000 assessed against w.S.G., and $5,000 assessed against Steen. 

1133 
III. 

Conclusion 

For the reasons set forth above, we affirm the judge's findirigs that 

W.S.C. violated section 56.12071 through its operation of the stacker-conveyor 

and that this violation resulted from its unwarrantable failure. We also 

affirm the judge's determination that Steen is individually liable under 

section llO(c) of the Act for knowingly authorizing W.S.C.'s violation of 

section 56.10271 involving the stacker-conveyor. Finally, we affirm the civil 

penalties assessed by the judge against W.S.C. and Steen. 

Colleen A. Geraghty 

U.S. Department of Labor 

Office of the Solicitor 

L,015 Wilson Blvd. 

Arlington, VA 22203 

Robert E. Mathias, Esq. 

1217 East First Street 

Duluth, Minnesota 55805 

L. Clair Nelson, Commissioner 

Admimistlrative Law Judge James A. Broderick 

Feder:.al Mine Safety & Health Review Connnission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1134 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RONNY BOSWELL, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. SE 90-112-DM 

NATIONAL CEMENT COMPANY, 

Respondent 

SE-MD-90-04 

Ragland Plant 

DECISION ON DAMAGES 

Appearances: Mr. Larry G. Myers, Union Representative, United 

Paperworkers International Union, Odenville, 

Alabama, for Complainant; 

Thomas F. Campbell, Esq., Lange, Simpson, 

Robinson & Somerville, Birmingham, Alabama, for 

Respondent. 

Before: Judge Maurer 

My Decision Upon Remand, issued on April 3, 1992, found 

respondent, National Cement Company, in violation of 

section l05(c) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 801 et ~' and 1 to complainant for damages. 

the parties cannot agree on what the appropriate measure of 

should be, a supplemental hearing was held in Birmingham, 

Alabama on June 15, 1992. 

In the first instance, respondent argues that the "adverse 

on this case 11 and the "damages issue 0 are not properly 

before me because I exceeded the scope of the Commission 1 s remand 

order to me when I revisited those issues in my Decision Upon 

Remand 1 and reopened the record to take additional evidence 

complainant 1 s claimed back pay. Furthermore, 

respondent disagrees that multiplying the loss in base pay 

by number of hours Boswell worked is the proper measure of 

in any case. Respondent instead argues that the proper 

measure of damages would be found by comparing Boswell's actual 

pay received to the pay of a miner working as a utility laborer 

over the same period of time. The difference being Boswell's 

proper measure of damages (assuming of course, that it a 

itive number). The problem with taking this tack again at 

this late stage of the proceedings is that the Commission has 

already stated otherwise. 

1 5 
The Commission discussed "adverse action in this case" and 

the "damages issue" at 14 FMSHRC 259-260 and held: 

National Cement argues that no adverse action was 

taken against Boswell because he earned more in the job 

to which he transferred than he would have earned as a 

utility laborer. We disagree. The Report specifically 

states that Boswell was disqualified as a utility 

laborer due to unsatisfactory performance and that he 

was reprimanded. It states further that, in order to 

avoid discharge, the employee should review his work 

performance history. This Report clearly constitutes 

an adverse action subjecting Boswell to discipline or 

detriment in his employment. 

Further, although Boswell earned $920.04 more in 

his new job than he would have in his previous one, his 

job transfer from a utility laborer to payloader 

operator reduced Boswell.ts base pay by $1.08 per hour. 

The annual difference in earnings found by the judge 

was due to additional hours worked by Boswell and 

premium pay received for Sunday and holiday work, shift 

differential, and overtime. Thus, the evidence shows 

that Boswell earned more because he worked more, but 

that he nevertheless suffered a loss in his base pay 

rate. We conclude that Boswell suffered an adverse 

action. (Citations omitted) . 

The parties at the supplemental hearing corrected the abovere f erenced $1.08 per hour pay differential between the utility 

laborer and payloader operator position to $0.945 per hour. This 

is the only piece of evidence that the parties have stipulated to 

entire case and I eagerly accepted it (Tr. 27). Thus, 

cents per hour was the base rate differential that 

Mr. Boswell used for all his back pay computations admitted into 

the record as Complainant 1 s Exhibits Nos. 1 and 2. These 

computations cover the period from January 11, 1990 through 

May 30, 1992, and take into consideration all the hours Boswell 

worked uding the overtime premiums due Boswell, figured from 

the base rate differential of 94 1/2 cents per hour. It appears 

to me to be a diligent and credible effort and I do credit it. 

For the time period between January 11, 1990, and May 30, 1992, 

the computations establish that he is due back pay in the amount 

of $6094.28. 

As a result of the testimony adduced at the Supplemental 

Hearing, I find the complainant's accrued back pay for the period 

from January 11, 1990 through May 30, 1992, to be $6094.28, based 

on a base rate differential of $0.945 per hour for each hour he 

worked. And because complainant has not yet been reinstated to 

his position of utility laborer, that aspect of his damages will 

1136 
continue to accrue as well as interest on that award at the 

appropriate rate until such time as it is finally calculated and 

paid subsequent to his reinstatement, whenever that might be. 

Presumably this case will go up on appeal. 

ORDER 

Respondent IS ORDERED: 

1. To pay Ronny Boswell back pay through May 30, 1992, in 

the amount of $6094.28, within 30 days of the date of this order. 

2. To pay Ronny Boswell interest on that amount from the 

date he would have been entitled to those monies until the date 

of payment, at the short-term federal rate used by the Internal 

Revenue Service for the underpayment and overpayment of taxes, 

plus 3 percentage points, as announced by the Commission in Loe. 

U. 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (1988), 

aff'd, 895 F.2d 773 (D.C. Cir. 1990). 

3. Within 30 days of this order, to reinstate complainant 

to the same position, pay, assignment, and with all: other 

conditions and benefits of employment that he would have had if 

he had not been disqualified from his previous position as a 

utility laborer on January llr 1990, with no break in service 

concerning any employment benefit or purpose. 

4. To completely expunge the personnel records maintained 

on Mr. Boswell of all information relating to the January 11, 

1990 "disqualification." 

5. To pay Ronny Boswell additional back wages in the amount 

of $0.945 per hour for every hour he has worked from May 31, 

1992, l the date of reinstatement to the ut laborer 

position with thereon computed accordance with the 

Comrnission°s Decision UMWA v. Clinchfield Coal Co., supra, 

until the date of paymento 

Decis on Damages together with my prior Decision 

Doon Remand constitutes my _ dispos of proceeding .. 

Distribution~ 

,~4AJIA~ Roy Jf\ ::J:.urer 

AdmitJ>frative Law Judge 

Mr. Larry G. Myers, Union Representative, United Paperworkers 

International Union, Route 2, Box 123, Odenville, AL 35120 

(Certified Mail) 

Thomas F. Campbell, Esq., Lange, Simpson, Robinson & Somerville, 

1700 First Alabama Bank Building, Suite 1700, Birmingham, AL 

35203 (Certified Mail) 

Mr. Ronny Boswell, P. o. Box 177, Wattsville, AL 35182 (Certified 

Mail) 

1137 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1992 

UNITED MINE WORKER OF AMERICA, COMPENSATION PROCEEDING 

ON BEHALF OF MEMBERS OF LOCAL 

UNION 2244, Docket No. PENN 91-108-C 

Complainants 

v. 

MATHIES COAL COMPANY, 

Respondent 

Mathies Mine 

ORDER LIFI'ING STAY AND D!SMISSING PROCEEDING 

Before: Judge Melick 

Complainants request approval to withdraw their complaint 

in the captioned case on the grounds that compensation has 

been received pursuant to a settlement agreement. Under the 

circumstances herein, the request is granted. 29 C.F.R. 

§ 2700.11. The Stay Order previous iss d is accordin ly 

lifted and this case is therefore d' mis e . 

I f ~ I l"', l 1

1

! ; 

t\/I . A~ , ~..__ I '.f UV 

GJry Administr MeliM ive Law Ju ~ ge 

(703) 756 [6261 ' 

;( 

Distribution 

Mary Lu Jordan, Esq., UMWA, 900 15th Street, N.W., Washington, 

D.Co, 20005 (Certified Mail) 

Joseph Mack III, Esq., Thorp, Reed and Armstrong, One Riverfront 

Center, Pittsburgh, PA 15222 (Certified Mail) 

/lh 

1138 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266 I FTS 564-5266 

1992 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

YOUNG BROTHERS INCORPORATEDu 

CONTRACTORS, 

Respondent 

. . 

. . 

D 

0 

D 

0 

DECISION 

Docket No. CENT 91-221-M 

A.C. No. 41-03142-05520 

Atkins Pit 

Appearances: Olivia Tanyel Harrison, Esq., Jack F. CStrander, 

Esq., Office of the Solicitor, U.S. Department of 

Laborr Dallas, Texas, 

for Petitioneri 

Richard C. Baldwin, waco, Texas 

for Respondent. 

Before~ Judge Lasher 

In this matter MSHAJ proceeding pursuant to Sect:ion llOCa 

the Federal ne Saf and Health Act of 1977v 30 u.s.c. 

§ 820 (a) 17 seeks assessment of civil penal es ($2 0 each) for two 

alleged violations of 30 C.F.R. § 56.14107(a)a 1 

The issues are whether violations occurred and, if sov the 

amount appropriate civil penalties thereforo 

The two Section 104(a) non-~Significant and Substantial" 

tations involved were issued by MSHA Inspector Mike Sanders on 

May 29" 1991 

1 This standard provides: 

Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, 

chains, drive, head, tail, and takeup pulleys, 

flywheels, couplings, shafts, fan blades, and 

similar moving parts that can cause injury. 

1139 
Citation No. 3895441 describes the allegedly violative 

condition as follows~ 

The guard provided to cover the Self-Cleaning 

Tail pulley pinch points on the C-12 conveyor 

did not extend a sufficient distance to cover 

all exposed areas. 

Based on the preponderant reliable and probative evidence 

introduced at hearing the following findings of fact are made. 

The violation as described by the MSHA Inspector in the Citation did occuro The Inspector clearly and credibly testified 

that a violation was observed and the citation was issued because 

the C-12 conveyorf which did have guards on both sides of the 

tail pulleyu was not properly,guarded in the back section thereof. There was not a guard surrounding all of the pinch points. 

(T. 24) Q The Inspector testified: 

The back section of the tail pulley was not guarded, in that 

an employee in the area could easily gain access to the area of 

the tail pulley. uu (T. 25). 

The Inspector credibly testified that in addition to the 

back section of the tail pulley, the "top section thereof "just 

directly above the tail pulley" was also unguarded. CT. 24, 

31). 2 The hazard was an employee's becoming caught in the pinch 

points while the tail pulley was in operation. Employees were 

able to walk into the area where they would incur exposure to 

such hazard" To 25~26 9 55) o Occurrence of such an accident was 

poss e but not likely c it did occur v it could result in 

loss a limbo (To 25-28) o 

The guarding question was personally installed by Plant 

Manager Torgersono To 44 v 52) o He conceded that a miner has to 

get underneath the tail pulley uufrequently111 in order 91 to clean 

outv"' CT" .(\6F &19-50 51[' 55) and that the miner u

1

would be 

standing right next to the conveyor 11 when he did so. {T. 55). 

2 Respondentcs Plant Manager, Ha.ns Torgerson, denied that 

the top portion was unguarded. I find the Inspector's testimony 

more trustworthy and it is accepted on this point. In any event, 

the record is clear that the rear of the tail pulley was not adequa tely guarded, that this was the Inspector's primary concern, 

and that such constitutes a violation. 

1140 
He also admitted being familiar with the regulation re:;cuiring 

rear guarding on these conveyors. (T. 56). Accordingly, it is 

found that this is a serious violation which occurred as a result 

of the Respondent's negligence. (See also T. 57-58). 

It is noted that in Respondent's post-hearing brief, Inspector Sanders' testimony is seriously misquoted. This misrepresentation, constitutes Respondent's defense. The Brief, at page 3, 

states: "On cross-examination, Mr. Sanders states clearly that, 

'if the conveyor had had a top guard, no citation would have been 

issued'"" 3 It is thus necesary to examine what Inspector Sanders 1 testimony, at page 31 of the transcript, actually was: 

Q. You indicated in testimony that there were 

guards on the side of the conveyors. 

A. Yes, siro 

Q. was there a guard on the top of the conveyor at 

that time? 

Ao Nov siro If there were, I would not have cited 

that condition. 

Q. But your notes do not indicate one way or the 

other, do they? 

Ao They indicate that it was not guarded--pinch 

point--tail pulley did not completely cover the 

pinch points at the rear of the self-cleaning 

tai pulleyo So the rear of the self-cleaning 

tail pulley was not totally coveredo (Emphasis 

added) o (To 31) o 

Further explanation is unnecessary 0 Respondent's defense is 

REJECTEDo 

Turning now to Citation Noo 3895442 it describes the allegedly violative condition as follows~ unihe guard provided at the 

tail pulley of the C-11 conveyor were [sic] constructed of rubber 

belting and could not be properly secured into placeo~ 

3 Respondent's presentation of this evidence, without citation to the transcript, could have been seriously misleading. 

1141 
Inspector Sanders testified that the rubber guarding used on 

the C-11 conveyor in question "has never" been acceptable to MSHA 

CT. 64-65) 4 since the tail-pulley operation cannot be clearly 

seen without removing or lifting the guard as is the case with 11 expanded metal or screen cloth" guards which permit the tail 

pulley to be serviced through small holes and grease fittings 

without lifting the guard. CT. 64). The Inspector said the hazard would be "someone lifting the rubber belting up simply to observe a condition which could be a build-up of material, a noisy 

bearing, just to examine the general area and the condition of 

the tail pulleyo 11 (T. 66) ~ He pointed out that it would be necessary for miners to come into the area to do shoveling and maintenance (T. 66) and stated there was a "possibility" that an incident could thus occur (Tro 66), meaning that a miner could be 

caught in the pinch points and suffer injuries such as loss of 

limbs, broken bones, cuts, bruises, and abrasions. (T. 66). 

The Inspector conceded that if someone fell against the rubber guarding, which was 3/ 8 of an inch thick rubber "conveyor 

belting" ( T. 7 3-7 4) 1 he would not reasonably expect such person 

to go through the guarding. CT. 71). 

Respondent~s witness, Plant Manager Torgerson, testified 

that if someone fell against the guard he would not pass through 

to the pulley and that if someone were to hit the guard as hard 

as possible with a shovel it would not penetrate the guarding 

material. (T. 74). Torgerson also established that the pulley 

in question was guarded from the top, both sides, and the rear, 

and that cleaning was normally accomplished by use of a front-end 

loader or sma loader" rather than having an employee on the 

ground lifting up t:he guard to cleano (To 75) o 

The preponderance of the evidence indicates that there was 

only a remote possibility that any miner or other person would 

t1 

~ The Inspector pointed out that MSHAus interpretation is 

based on its 91 guarding bookv 01 which is entitled "MSHA vs Guide to 

Equipment Guardingu 01 Ex. P-2" Significantlyv rubber guarding is 

not specifically banned by this documentu which on page 4 thereof 

states, inter aliag ilMa terials for guards should be carefully 

selected. For most installations, guards of bar stock, sheet 

metal, perforated metal, expanded metal, or heavy wire mesh are 

more satisfactory than those of other materials. It is also~~ 

noted that the regulation allegedly infracted does not specifically or absolutely bar the use of rubber as a guarding material. 

1142 
come into contact with the pinch points of the tail pulley. In 

any event, I conclude, that to the extent MSHA's Guide to Equipment Guarding heavily relied upon ~ the Inspector to formulate 

his opinion as to the inadequacy of the guard, creates a presumption or inference that metal or non-rubber guarding material was 

required, such inference or presumption is rejected. Such Guide 

is an informally promulgated handbook containing guidelines to 

aid inspectors in enforcing the Mine Act and such guides are not 

equivalent to safety regulations or rules of law binding on the 

Commission in all cases. Secretary v. King Knob Coal Company, 

Inc. 11 3 FMSHRC 1417 (June 1981) o 

In the instant matter I find no evidentiary basis to support 

a conclusion that there existed a reasonable possibility of anyone contacting the tail pulley in question. Thompson Brothers 

Coal Companyu 6 FMSHRC 2094 (S.eptember 1984). Accordingly, 

Citation No. 3895442 will be VACATED. 

Penalty Assessment - Citation Noe 3895441 

Respondentr a medium to a large Texas construction company 

(T. 51-53) /1 is the operator of the Atkins Pit, a very s:nall surface limestone mine consisting of a quarry and a primary and a 

secondary crusher. It had a history of 43 previous violations 

( T. 81) during the two-year period immediately preceding the 

issuance of the citation. The parties stipulated that the violation was abated in na timely fashion" and that payment of penal es ~qould not affect Respondent us ability to continue in 

:'.)usinesso The ola on descr ed in s citation was above 

determined 'i:c be serious and to have resulted from Res'pondent 

negligence Accordingl a penalty of $150 is ASSESSED a 

ORDER 

:Lo ta tion No o 3 895442 is VACATED. 

~o Respondent SHALL PAY to the Secretary of Labor within 

30 ys from the date of issuance of this decision the sum of 

$150 as and for a civil penalty for Citation Noo 38954410 

~~~~~£!-- Michael A. Ia sher, Jr. 

Administrative Law Judge 

1143 
Distribution: 

Jack F. Ostrander, Esq., Olivia Tanyel Harrison, Esq., Office of 

the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX 75202 (Certified Mail) 

Mr. Richard C. Baldwin, YOUNG BROTHERS INC., CONTRACTORS, P.O. 

Drawer 1800, 3001 Marlin Highway 6, Waco, TX 76703 (Certified 

Mail) 

ek 

1144 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 7 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RAMAR COAL COMPANY, 

INCORPORATED, 

Respondent 

Docket No. VA 91-69 

A.C. No. 44-03441-03520 

Ramar Tipple No. 1 

DECISION 

Appearances~ Caryl L. Casden, Esq., Office of the Solicitor, 

u.s Department of Labor, Arlington, Virginia, for 

the Petitioner; 

Before~ 

James Ashby, President, Ramar Coal Company, Inc., 

Oakwood, Virginia, pro se, for the Respondent. 

Judge Koutras 

STATEMENT OF THE CASE 

proceeding concerns civil penalty proposals filed by 

the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 820(a) 1 seeking civil penalty assessments for three alleged 

violations of certain mandatory safety standards found in 

Parts 7~ and 77u Title 30 Code of Federal Regulations. The 

respondent filed a timely answer and contest, and a hearing was 

held in Grundy, Virginia. The parties waived the filing of 

posthearing briefs but I have considered their oral arguments 

made in the course of the hearing my adjudication of this 

matter. 

The parties settled two of the violations (Citation 

Nos. 9975365 and 9975366), and the settlement was approved from 

the bench. With regard to the remaining contested violation, the 

issues presented include the fact of violation, the appropriate 

civil penalty assessment for the violation taking into account 

the civil penalty criteria found in section llO(i) of the Act, 

and whether or not the inspector's S&S finding is supportable. 

Additional issues raised by the parties are identified and 

disposed of in the course of this decision. 

1145 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. 30 C.F.R. § 77.1607(c). 

3. Commission Rules, 29 C.F.R. § 2700.1 et seq. 

Discussion 

Section 104(a) non-"S&S" Citation No. 9975365, issued on 

October 11, 1990, cites an alleged violation of 30 

C.F.R. § 71.208(a), and the cited condition or practice states as 

follows: 

The operator did not take one valid respirable dust 

sample from designated work position 004-0 347 for the 

bimonthly sampling period of August-September 1990. 

Required sample is to be collected and submitted to the 

Richlands MSHA Lab. 

Section 104(a) non-"S&S" Citation No. 9975366, issued on 

October 11, 1990, cites an alleged violation of 30 C.F.R. 

§ 71.20B(a), and the cited condition or practice states as 

follows: 

The operator did not take one valid respirable dust 

sample from designated work position 005-0 374 for the 

bimonthly sampling period of August-September 19900 

Required sample to be collected and submitted to the 

Richlands MSHA Lab. 

The respondent confirmed that it did not wish to contest the 

two respirable dust citations and agreed to pay the full amount 

cf the proposed civil penalty assessments (Tr. 3). 

The remaining alleged violationp section 104(a) "S&S 11 

Citation No" 3352852, issued by MSHA Inspector Clifford F" 

Lindsay on October 4, 1990p cites an alleged violation of 

30 CoF.Ro § 77ol607(c) 0 and the condition or practice cited is 

described as follows~ 

The operating speed of a large hauler was not prudent 

and consistent with conditions of the roadway. The 

large refuse hauler almost collided with my vehicle as 

he was descending a rain-slick steep section of the 

haul road returning from the refuse area. The hauler 

operator could not bring the vehicle to a stop even 

after locking the rear wheels until he was well past my 

vehicle. He avoided colliding with my vehicle by only 

1146 
the smallest of margins and largest of luck. Imminent 

danger Order No. 3352853 is issued in conjunction with 

this citation, therefore no termination date is set. 

stipulations 

The parties agreed to the following (Tr. 5-9): 

1. The respondent (James Ashby) is the owner and operator 

of the Ramar Tipple No. 1, which is a small mine operation. 

2. The respondent is subject to the Act and agrees that the 

presiding judge has jurisdiction to hear and decide this 

case. 

3. The contested citations were duly served on the 

respondent by MSHA Insp~gtor Clifford F. Lindsay, an 

authorized representative of the Secretary of Labor, while 

acting in his official capacity. 

Bench Ruling 

The record reflects that Inspector Lindsay issued a section 

107(a) Imminent Danger Order No. 3352853, in conjunction with the 

contested Citation No. 3352852. A copy of the order was included 

as part of the pleadings filed by the petitioner and it states 

that it was issued "to close all of the refuse haul road until 

such time as all refuse hauler operators can be instructed to 

maintain safe speeds under all conditions of the roadway". 

The parties were under the impression that the respondent 

had contested the validity of the imminent danger order and that 

was in issue this civil penalty proceeding (Tr. 17). 

However, I take note of the fact that the petition for assessment 

of civil penalty seeks a civil penalty assessment only for the 

contested section 104(a) citation, and the respondent conceded 

that it not timely contest the validity of the imminent 

danger order (Tr. 16}. 

Commission Rule 21, 29 C.F.R. § 2700.2l(a), requires a mine 

operator to file an application for review of a section 107(a) 

imminent danger order within thirty (30) days of its receipt. In 

this case, there is no evidence that the respondent sought timely 

review of the validity of the order. Under the circumstances, I 

issued a bench ruling that the validity of the order was not an 

issue in this case and that I would not decide the validity of 

the order (Tr. 16-19). My bench ruling is herein REAFFIRMED. 

Petitioner's Testimony and Evidence 

Clifford F. Lindsay testified that he is employed by MSHA as 

an impoundment pile specialist. He is a mining engineer and an 

1147 
authorized representative of the Secretary of Labor and he has 

regularly inspected the respondent's waste impoundment and refuse 

area to insure compliance with MSHA's regulations. He holds a BS 

degree in chemistry from William and Mary College, and an MS 

degree in mining engineering from Virginia Tech. 

Mr. Lindsay confirmed that he was at the mine on October 4, 

1990, to inspect the waste pile and the entry gate off the county 

road was open. The gate was routinely opened when the facility 

was in operation but it would otherwise be locked. There were 

three signs posted around the gate area, and one of the signs 

stated "keep right-do not pass". 

Mr. Lindsay stated that he stopped at the plant office as 

required to contact a representative of the respondent and to 

review the plant inspection records. There was no one in the 

off ice / which was not unusua+..t. and .. he left to drive to the 

impoundment area. It was an overcast rainy day and he was 

driving a standard government Cherokee jeep. The haulage road 

conditions were "wet and messy" and refuse spillage from the 

trucks was on the roadway, and it was similar to "black mud". 

The roadway surface consisted of a combination of dirt, gravel, 

and refuse. 

Mr. Lindsay stated that as he proceeded along the haulage 

road up to the impoundment site he observed no other traffic on 

the road. The roadway was not as wide as a standard 2-lane road, 

and he was driving "slightly to the right 11 • As he proceeded to 

enter the "sharp hairpin" turn on the right inside curve he heard 

the truck air horn sounding steadily and he turned his jeep as 

close as he could to the right inside portion of the roadway next 

~o the berm. He saw the truck coming down the roadway in a 

partial slide with its wheels lockedo The truck was 

approximately two-feet away from his jeep when it passed him and 

he was looking half-way up the truck tires as the truck passed 

him. 

Mr. Lindsay was of the opinion that the truck driver was not 

full control of his vehicle. Although the driver was able to 

steer the truck, he could not slow it enough to bring it to a 

stop in a timely manner. If he had not seen the truck or heard 

the driver sound his hornr which prompted him to move his jeep 

out of the way and to the right side of the road, there was no 

doubt that an accident would have occurred and the truck would 

have struck the jeep and run over ito 

Mr. Lindsay stated that after the truck passed by he 

immediately turned the jeep around to block and control access to 

the roadway because he did not at that time know who else may 

have been using the roadway and he was afraid that an accident 

would occur. 

1148 
Mr. Lindsay identified five photographs of the haulage road 

which he took on May 4, 1992, (Exhibits P-1-a through P-1-e). He 

confirmed that exhibits P-1-d and P-1-e show the location of the 

incident of October 4, 1990. He also identified exhibit P-3, as 

a copy of the notes which he made on that day. 

Mr. Lindsay confirmed that he issued the contested citation 

in question (Exhibit P-2), and cited a violation of mandatory 

safety standard 30 C.F.R. § 77.1607(c). He stated that the fact 

that the truck nearly collided with his vehicle led him to 

conclude that it was being operated at an unreasonable speed 

given the wet conditions of the roadway. He confirmed that the 

roadway was well-bermed, and he assumed that the truck brakes 

were in good working condition since they locked when the driver 

applied them and he eventually stopped the truck after it passed 

by him. 

Mr. Lindsay stated that he based his "S&S" finding on the 

fact that he had a near collision with the truck. He also 

considered prior MSHA accident reports which he has reviewed 

concerning vehicle collisions under similar conditions, vehicles 

colliding with trees, boulders, and other objects in the roadway, 

and accidents resulting from truck drivers driving too fast. 

Although such prior incidents have not occurred at the 

respondent's mine, he considered the fact that he could have been 

run over by the truck in question, and that in the course of 

normal mining operations, a driver operating his truck too fast 

could collide with another truck, with resulting serious 

injuries" He confirmed that the roadway was normally traveled by 

other inspectors, contractor vehicles, other company service 

vehicles and refuse hauling trucks" 

Mr. Lindsay stated that during a subsequent mine inspection 

visit on November 28, 1990, Mr. Ashby discussed the citation with 

him and informed him that the only solution to the problem was to 

post signs restricting access to the haulage road. Mr. Ashby 

also mentioned the fact that he had a recent 11 problem11 with a 

tanker truck which was on the roadway without the knowledge of 

the haulage truck drivers, but he did elaborate further as to 

what the 11 problem11 was all abouto Mr" Lindsay identified Exhibit 

P-4v as a copy of his notes documenting his conversation with 

Mr. Ashby" 

Mro Lindsay confirmed that he based his 11moderate 11 

negligence finding on the fact that the respondent may not have 

been aware that the truck driver was driving too fast for the 

existing road conditions. He also considered the fact that the 

drivers need to maintain and complete their haulage cycle in a 

timely manner in order to keep up with the refuse haulage trip 

from the storage bins to the waste impoundment pile. 

1149 
Mr. Lindsay believed that the haulage truck operating 

procedures at the time of his inspection were typical of the 

procedures followed under dry roadway conditions. However, he 

believed that the drivers needed to adjust their travel speed 

when the road conditions are wet and slippery. He confirmed that 

on subsequent mine visits he has observed that the drivers are 

operating at slower speeds than the speed of the cited truck on 

the day of his inspection. 

Mr. Lindsay stated that he issued a section 107(a) imminent 

danger order to temporarily block access to the roadway until he 

could contact the respondent's representative to instruct the 

drivers to slow down. He also considered the fact that he did 

not know who else might be using the roadway and he was concerned 

that an accident would occur if normal mining operations were 

allowed to continue before he could speak to the respondent and 

take further corrective act~9n (Tr. 24-68). 

On cross-examination, Mr. Lindsay confirmed that he has 

inspected the respondent's operation since 1985, and although he 

has "dodged" and "backed up" away from trucks from time-to-time, 

he was never involved in any prior "near collisions" and was not 

aware of any prior haulage road accidents. He also confirmed 

that he was aware of the steep grade over which the cited truck 

in question was travelling on the day in question, and he agreed 

that people should be careful on slick roadways. 

Mr. Lindsay confirmed that he was not familiar with the 11mechanics" of haulage trucks and that he did not know the speed 

at which the truck was travelling on the day of the incident in 

question" He has since nc1ocked 1

i the trucks at 20-25 miles per 

l1our under drv road conditionsQ He believed that it was the 

respondent:s responsibility to establish safe truck operation 

speeds for the haulage roads on its property. He confirmed that 

a 25 m.p.h. speed limit sign is posted on the level roadway 

portion (Exhibit R-1-C) but did not see one posted on the "high 

road10 • He also stated that he has never had to pull over to the 

left side of the road to allow a truck to pass him. 

Mr. Lindsay stated that he had no knowledge as to whether or 

not the respondent had ever instructed the truck drivers about 

safe travel speeds prior to his inspection on October 4, 1990, 

and although he saw a bulletin board in the mine office he saw no 

roadway safety rules or procedures posted. He confirmed that he 

did not initially see the truck in question because of the angle 

of the road, but that he did hear the air horn (Tr. 68-91). 

Respondent's Testimony and Evidence 

Bobby Joe Austin testified that he is employed by the 

respondent but is currently laid off and receiving unemployment 

compensation. He stated that he served in the army as a heavy 

1150 
equipment operator and has worked in strip mining operating heavy 

equipment and 10-ton trucks since 1968. He confirmed that he was 

driving the empty truck in question on October 4, 1990, and that 

Inspector Lindsay was driving in the center of the road and then 

moved to the right after he sounded the truck air horn. 

Mr. Austin stated further that all of the other MSHA inspectors 

who travel the roadway usually drive to the left at the curve in 

question so they can look up the incline to see any traffic 

coming down the road. 

Mr. Austin confirmed that he applied his truck brakes when 

he saw Mro Lindsay and that the transmission retarders 

automatically lock the wheels. He stated that large trucks and 

other vehicles have passed each other at the location where he 

encountered Mr. Lindsay 1 s vehicle. Mr. Austin denied that he was 

operating the truck in a reckless manner • He stated that he was 

aware of the fact that he should drive slower under wet road 

conditions, and he believed that he had the truck under control 

on the day in question. 

Mr. Austin stated that the respondent has conducted regular 

safety talks with all truck drivers and has instructed them to 

drive carefully, particularly under wet road conditions. He 

stated that he and Mr. Ashby cautioned Mr. Ashby's son about 

driving to fast on the roadways, and Mr. Ashby confirmed that he 

fired his son for driving too fast. Mr. Austin believed that the 

respondent's safety record and procedures, as compared to other 

mine operators 1 was npretty high". He stated that no one has 

ever instructed him to drive fast or to hurry so that he could 

keeo :i.lp ·the refuse cycle (Tr. 92~104), 

On cross-examination, Mro Austin explained that his job was 

to drive the haulage trucks back and forth from the plant refuse 

bins to the refuse impoundment pile. He has also trained new 

drivers pursuant to the respondent's 8-hour training program. He 

stated that the refuse tipple has a daily 5 or 6 truck capacity 

and that the haulage cycle consists of a continuous loading, 

haulage 1 and dumping cycleo He confirmed that he has never been 

disciplined for lowing too much refuse material to accumulate 

in the bins or for violating any company driving safety rules" 

Mr. Austin stated that he was operating the truck in third 

gear while descending the roadway in question, and that the truck 

can go 20 miles per hour in third gear. However, he never "hits 

the curve wide openu, and he could not have driven any slower on 

the day in question (Tr. 104-118). 

Inspector Lindsay was recalled and he testified that he was 

not aware of any company rule or policy stating that he was to 

stay on the left side of the road when approaching a curve or an 

incline. He confirmed that he has never driven on the left side 

of the road in any of his visits to the mine site and he believed 

1151 
that the company practice and rule was "right side traffic all of 

the time"o He confirmed that he drives at a slow rate of speed 

and listens for any haulage trucks on the roadway. 

Mr. Lindsay stated that based on his observations of the 

truck at the time of the incident in question he believed that 

the driver could have driven much slower given the conditions of 

the roadway so that he could bring the truck to a stop within a 

reasonable distance to avoid a collision. Mr. Lindsay stated 

that he instinctively drives inside the curve because of his 

belief that a large vehicle coming at him around the curve would 

have an easier time going to the outside broad radius of the 

curve. He stated that "I still can't picture a large hauler with 

its rear wheels locked and sliding being able to negotiate a 

tighter turn as opposed to a broader turn" (Tr. 121). 

Mr. Lindsay stated that'from his subsequent observations of 

haulage trucks using the haul road in question, the trucks 

traveled at a slower rate of speed on dry days than the speed the 

truck was travelling on the wet day when he issued the citation 

(Tr. 122). In his opinion, in order for a driver to be driving 

prudently and consistently with the road conditions "the vehicle 

should be driven slowly enough so that in negotiating this curvy, 

steep road, the operator could bring the vehicle to a stop in a 

resonable length to avoid colliding with any object in the road" 

(Tr. 123) • 

Findings and Conclusions 

The respondent charged with a violation of mandatory 

standard 30 C.F.R. § 77.1607(c) 1 which states as follows~ 

Equipment operating speeds 

consistent with conditions 

clearance. ibility, tra 

equipment used. 

shall be prudent and 

of roadway, grades, 

, and the type of 

Truck driver Austin testified that he had the truck under 

controlr and he denied that he was operating it in a 11 reckless 

manner" on the day in question. He further testified that he had 

the truck in u•normal 11 third gear while coming down the inclined 

roadway in question approaching the curve where Mr. Linday's 

vehicle was located. Although Mr. Austin initially stated that 

in third gear nno matter how much fuel you give it, it will go a 

certain speed" (Tr. 108), he later confirmed that the speed of 

the truck can reach 20 miles an hour in third gear, and that if 

he wanted to "slide the truck" around the curve in question he 

could "hit it at twenty". However, he denied that he would ever 

do this because "you show that curve respect" (Tr. 115). 

1152 
Inspector Lindsay did not allege that Mr. Austin was 

operating the truck in question in a reckless manner. The 

inspector's credible testimony reflects that he issued the 

citation after observing the truck coming down the haulage road 

in a partial slide with its wheels locked. The day in question 

was rainy and overcast, and the roadway surface was wet and 

consisted of a combination of dirt, gravel, and refuse, and the 

inspector described this material as 11 black mud". He also 

indicated that it was raining hard enough so that "I wouldn't 

want to stand out in it very long", and "the water on the road 

would make it slippery" (Tr. 31, 34). 

Mr. Lindsay testified that he had no doubt that Mr. Austin 

did not have full control of the truck even through he was able 

to steer it some. Mr. Lindsay stated that he observed the truck 

in a partial slide with its rear wheels locked up coming down the 

road towards the curve where,h~ was located. He concluded that 

Mr. Austin had apparently applied the brakes after seeing his 

vehicle in the curve, but instead of the truck slowing down or 

coming to a stop, the rear wheels were simply locked up and 

sliding (Tr. 36). Mr. Lindsay stated further that the driver's 

side left rear very large wheel, which was locked up and sliding, 

missed the front of his vehicle by approximately two feet, and he 

was looking up at it as the truck passed by "very close". If the 

truck had slid slightly sideways towards him it would have 

collided with his vehicle (Tr. 37). 

Mr. Lindsay testified that Mr. Austin could not have stopped 

the truck even if he had wanted to because the wheels were locked 

and sliding r and as the truck: passed by r it was iding and not 

stopping at any significant rateo Mro Lindsay believed that if 

he had driven a l further around the curve in the roadway he 

would have been in the direct path of the truclc, and it would 

have been difficult for Mr. Austin to avoid colliding with his 

vehicle. Mr. Lindsay stated that if a collision had occurred, 

:uhe very likely could have absolutely run over me 1e (Tr. 39). 

Under all of these circumstances, and given the prevailing wet 

and slippery road conditions, Mr. Lindsay concluded that the 

truck was being operated at an unreasonable speed. He issued the 

citation and charged the respondent with a violation of section 

77.1607(c), because of belief that the truck was being 

operated at a speed which was not prudent or consistent with the 

existing wet and slippery conditions of the roadway. 

There is no direct evidence as to precisely how fast 

Mr. Austin was driving on the day in question. Inspector Lindsay 

testified that he has "clocked" the trucks traveling at 20 to 25 

miles an hour coming down the grade in question under normal dry 

road conditions, but that after the incident in this case, the 

drivers drive slower (Tr. 74, 82). Mr. Ashby agreed that there 

is a potential for an accident or a fatality when the trucks are 

on the road in question and that he has cautioned drivers to go 

1153 
slower on wet days (Tr. 141). Mr. Austin confirmed that after 

the incident in question, he was cautioned to drive slower, but 

that he continued "in a manner" to drive "at a normal speed" 

(Tr. 108). He believed that his speed on the day in question was 

typical of his speed on any other "normal rainy day" 

(Tr. 111-112). 

Mr. Austin conceded that there was a need to drive slower 

under wet road conditions, and he confirmed that when driving at 

a "normal rate of speed" he can "judge the rock trucks", but he 

acknowledged the need to be aware of the presence of other 

vehicles that are normally not on the roadway (Tr. 97). 

Mr. Austin asserted that he was operating the truck "in a normal 

safe capacity", and he stated that the truck cannot travel slower 

than five (5) miles an hour and that it would have been 

impossible for him to go any slower "without plumb stopping the 

truck and just barely letting the wheels turn at a degree that 

would take me all day to move" (Tr. 111) . 

Mr. Austin's suggestion that he was travelling at a slow 

rate of speed and that if he travelled any slower, the truck 

would probably have come to a stop if it reached five miles an 

hour is rejected as less than credible. Based on the credible 

testimony of the inspector, I conclude and find that Mr. Austin 

was probably travelling in excess of 20 to 25 miles and hour down 

the slippery and wet inclined roadway in question and that when 

he initially observed the inspectoris vehicle heading uphill 

approaching the curve in the road, he applied his brakes. This 

sudden braking action, which caused the wheels to lock, coupled 

1Hi th the automatic stopping action of the transmission retarder 1 

resulted the truck going into a slide 1 and it was sliding as 

it passed dangerous close to the inspector's vehicle, nearly 

colliding with before slowing down or stopping after it was 

well past the inspector's vehicle" 

Mr" Austin testified that he sounded a horn when he 

initial observed the inspector's vehicle the middle of the 

roadway coming up the hill before the inspector moved completely 

to the right hand side of the road as far as he could 

(Tr. 93-94). If Mr. Austin were travelling as slow as he 

suggested, I believe that one can reasonably conclude that he 

should have been able to at least slow down his empty truck, or 

at least control it from sliding and nearly colliding with the 

inspector 0 s vehicle which was "tucked in'' on the right inside of 

the roadway .curve next to the berm. However, this was not the 

case. Under all of these circumstances, I conclude and find that 

the preponderance of the credible evidence presented by the 

petitioner establishes that the cited truck in question was being 

operated at a speed which was not prudent or consistent with the 

existing grade, traffic, and roadway conditions. Accordingly, I 

1154 
further conclude an find that the petitioner has established a 

violation of 30 C.F.R. § 77.1607(c), and the contested citation 

IS AFFIRMED. 

Significant and Substantial Violation 

A "significant and substantial" 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 coal or other mine safety or health hazard." 

30 C.F.R. § 814(d) (1). A violation is properly designed 

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 822, 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 11 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) (1), 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). 

The question of whether any particular violation is 

significant and substantial must be based on the particular facts 

surrounding the violation, including the nature of the mine 

1155 
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498 

(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987) . 

Inspector Lindsay based his 11 S&S" finding on the fact that 

he had a near collision with the truck being operated by 

Mr. Austin. He testified that Mr. Ashby told him that he "was 

lucky" that he was not run over by the truck, and Mr. Ashby 

alluded to a prior incident involving another truck on the same 

haulage road under circumstances similar to the instant case 

(Tr. 51-55). Mr. Lindsay also took into consideration prior MSHA 

accident reports, the fact that other vehicles, such as 

contractor and service vehicles, and inspectors vehicles, used 

the roadway, and he was concerned that in the normal cause of 

mining operations, a truck driver operating a truck too fast for 

the prevailing road conditions would be involved in an accident. 

Under the circumstances, Mr. Lindsay concluded that "there was a 

pretty good probability that· at some point an accident of this 

kind could happen", and that if it did, it could result in 

serious and fatal injuries (Tr. 47). 

After careful review and consideration of all of the 

evidence in this case, I conclude and find that a measure of 

danger to safety was contributed to by the violation, and that it 

is reasonably likely that the operation of a truck on an inclined 

roadway which is wet an slippery at a speed which not prudent or 

consistent with the prevailing road conditions, and with the 

presence of other vehicles on the roadway, would reasonably 

likely result in an accident or collision. If this were to 

occur, I further conclude that it is reasonably likely that it 

would result in injuries of a serious or fatal nature. Under all 

:if these circumstancesr I conclude and find that the inspector's 

S&S'9 finding was reasonable and justified, and IT IS AFFIRMED. 

History of Prior Violations 

An MSHA computer print-out reflects that for the period 

beginning on October 3, 1990, the respondent paid civil penalty 

assessments totally $2,036, for 49 violations, all of which were 

issued as section 104(a) citations. Thirty-seven (37) of the 

citations were assessed under MSHA's "regular formula 11 assessment 

procedures, and twelve (12) were assessed under MSHA's "single 

penalty11 procedures. None of the violations were "specially 

assessed 11 • 

I take note of the fact that the respondent's compliance 

record does not include any prior violations of 30 C.F.R. 

§ 77ol607(c). I cannot conclude that the respondent's history of 

prior violations is such as to warrant any additional increase in 

the civil penalty assessment which I have made for the contested 

violation in this case. 

1156 
Size of Business and Effect of Civil Penalty Assessments on the 

Respondent's Ability to Continue in Business 

The parties have agreed that the respondent is a small coal 

tipple operator (Tr. 5). The pleadings filed in this case 

include an MSHA proposed assessment Form 1000-179, which reflects 

"2,161 production tons or hours worked per year" and the size of 

the mine as "o production tons or hours worked per year". A copy 

of a "Proposed Assessment Data Sheet" (Exhibit P-7), reflects 

that for the calendar year 1989, the respondent's total 

"Hrs/tonnage" was 2,161, and no hours or production for calendar 

year 1990. 

Respondent's owner and operator James Ashby stated that any 

civil penalty assessments in this case would have to be paid from 

his personal funds and that the company has no money to pay. He 

stated that he currently employs fourteen people and operates 

one-to-three days a week processing 7,500 to 23,000 tons of coal 

through the preparation plant and tipple. However, the coal has 

been stockpiled awaiting shipment to the Pittston Coal Company 

which is his only customer at this time. Although the haulage 

trucks drivers are employed by his company, the Pittston Company 

permits him to use their trucks. He confirmed that he does not 

own or operate any other mining operations, and that when he is 

in full production he processes approximately 45,000 to 50,000 

tons a month (Tr. 12-13; 134-137). 

Mr. Ashby further indicated that he had previously agreed to 

pay the two $500 civil penalties for the respirable dust 

violations and that he advised an MSHA official that nr 0 ve got no 

problem with thato I~ll pay it'" (Tro 11) o In response to a 

question as to whether or not the payment of the J'.:1.?cll amount of 

penalties assessed for the three citations question 

would put him out of business, Mr. Ashby replied "It would be 

tougho It would hurt a lot" (Tr. 9). 

After careful review and consideration of all ':Jf the 

evidence case 1 I cannot conclude that the payment of the 

c penalty assessments in this case will put the respondent 

out of business. However, I have considered the us 

unrebutted assertions with respect to his current mining 

operation and have adjusted the initial proposed l penalty 

assessment for Citation No. 3352852. 

Negligence 

The evidence establishes that Mr. Ashby had posted some 

speed limit and other signs on his property and that he had 

cautioned Mr. Austin to be careful and to keep his truck under 

control while driving the haulage roads (Tr. 114). Mr. Ashby 

confirmed that he fired his own son for driving too fast on the 

property, and Mr. Austin confirmed that Mr. Ashby conducted 

1157 
regular safety meetings with drivers and instructed them to drive 

carefully. Inspector Lindsay confirmed that he based his 

"moderate" negligence finding on the fact that the respondent may 

not have been aware of the fact that Mr. Austin was driving too 

fast for the existing·road conditions. Under all of these 

circumstances, I conclude and find that the cited violative 

condition was the result of a moderate-to-low degree of 

negligence on the part of the respondent and I have taken this 

into consideration in the civil penalty assessment which I have 

made for the violation. 

Gravity 

Based on all of the testimony and evidence adduced in this 

case, including my 11S&S 11 findings, I believe that the inspector 

was most fortunate in avoiding a collision with the truck in 

question. Accordingly, I conclude and find that the violation 

was very serious. 

Good Faith Compliance 

The evidence establishes that the respondent timely abated 

the violation in good faith, and the inspector confirmed that the 

respondent responded in a positive and cooperative manner by 

instructing all truck drivers to maintain safe speeds under all 

roadway conditions. I have taken this into consideration in this 

case. 

Civil Penalty Assessments 

As noted earlier, the respondent agreed to settle the two 

respirable dust violations by paying the full amount of the 

proposed civil penalty assessments. With respect to the 

remaining citation, which I have affirmed, and on the basis of 

the foregoing findings and conclusions concerning the civil 

penalty criteria found in section 110(1) of the Act, I conclude 

and f that a penalty assessment of $125 is reasonable 

and appropriate. 

ORDER 

The respondent IS ORDERED to pay the following civil penalty 

assessments within thirty (30) days of this decision and order. 

Payment is to be made to MSHA, and upon receipt thereof, this 

matter is dismissed. 

1158 
Citation No. 

9975365 

9975366 

3352852 

Distribution: 

10/11/90 

10/11/90 

10/4/90 

30 C.F.R. Section 

71. 208 (a) 

71. 208 (a) 

77.1607(c) 

Assessment 

$500 

$500 

$125 

~{!u~~ Administrative Law Judge 

Caryl L. Casden, Esq., Office-of theSolicitor, U.S. Department 

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

(Certified Mail) 

Mr. James Ashby, President, Ramar Coal Co., Inc. P.O. Box 622, 

Oakwood, VA 24631 (Certified Mail) 

/ml 

1159 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HE~LTH 

ADMINISTRATION (MSHA), 

Petitioner 

\l. 

HICKORY COAL COMPANY, 

Respondent 

JUL 101992 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 92-16 

A. C. No. 36-07783-03523 

Docket No. PENN 92-171 

A. C. No. 36-07783-03524 

Docket No. PENN 92-172 

A. C. No. 36-07783-03525 

Docket No. PENN 92-304 

A. C. No. 36-07783-03526 

Slope No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Appearances~ Joseph T. Crawford, Esq., Anthony G. O'Malley, Jr., 

Esq., Office of the Solicitor, u. s. Department of 

Labor 1 Philadelphia,, Pennsylvania, for the 

s 

l 

Respondent. 

, Hickory Coal Company, for 

Before: Judge Maurer 

government w 

of these cases, which was held on June 17, 

" Pennsylvania, the parties jointly moved for 

a settlement after the testimony of the first two 

Docket: l',To. PENN 92-16 involves a single section 104 (d) (1) 

c ion, citation No. 2933291. The parties requested a 

50 percent reduction in the $400 assessed penalty based on the 

respondent 1 s limited ability to pay and the current nonproducing 

character of the mine. 

Docket No. PENN 92-171 contains three section 104(a) 

citations assessed at a total amount of $162. Settlement is 

proposed to reduce the penalty for Citation No. 2933297 from $20 

to $12; and Citation Nos. 2934879 and 3079884 by 50 percent to 

$71. The same rationale for the settlement reductions prevails 

throughout this decision. 

1160 
Docket No. PENN 92-172 involves five section 104(a)-104(b) 

citations. It is proposed to reduce Citation Nos. 2934803 and 

3079392 from $140 to $84, respectively. With regard to Citation 

Nos. 2933292, 2934801, and 3079391, a 50 percent reduction to 

$245 is proposed. 

Lastly, Docket No. PENN 92-304 contains a single 

section 104(a) citation. It is proposed to reduce the assessment 

thereon from $750 to $334. 

This leaves the respondent with a total civil penalty to pay 

of $1030. It is proposed that the initial $180 be paid within 

90 days of the date of this decision, while the remaining $850 

may be paid in $50 monthly installments, beginning no later than 

90 days after the date of this decision. 

Furthermore, there are nonmonetary aspects of the settlement 

agreement. Mr. Kutsey has ag.r.eed that on the day that he intends 

to reopen his mine, he will contact MSHA's Pottsville office. At 

that time, MSHA inspectors will accompany Mr. Kutsey in an 

inspection of his mine. Any citations that are issued will not, 

however, be assessed. Abatement will be required, of course. In 

addition, any outstanding section 104(b) orders pertaining to 

this mine will be fully abated before coal is mined. Finally, 

Mr. Kutsey has agreed that he will not impede the MSHA inspection 

of his mine in any way, forever. 

I granted this motion on the record at the hearing as I do 

believe that the proffered settlement, in toto, is appropriate 

under the criteria set forth in section llO(i) of the Act and in 

the best interest of both the parties to these cases and the 

nubl 

ORDER 

It hereby ORDERED that: 

~. ion Nos. 2933291, 2933297, 2934879, 3079884, 

2934803, 3079392, 2933292, 2934801, 3079391 and 2934258 ARE 

AFFIRMED. 

2. Respondent, Hickory Coal Company, IS ORDERED TO PAY 

civil penalties the total amount of $1030. Of that amount, 

$180 is due within 90 days of the date of this dee ion. The 

remaining $850 will be paid in $50 monthly installments also 

beginning within 90 days of the date of this decision, and 

continuing for 17 months or until paid in full. 

1161 
3. Respondent shall also fully comply with all the 

nonmonetary aspects of the settlement agreement approved herein 

as more fully set out earlier in this decision. 

aurer 

s rative Law Judge 

Distribution: 

Joseph T. Crawford, Esq., Anthony G. O'Malley, Esq., Office of 

the Solicitor, U. S. Department of Labor, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

Mr. William Kutsey, Hickory Coal Company, R.D. #3, Box 479, 

Pine Grove, PA 17963 (CertifTed Mail) 

dcp 

1162 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

DENVER, CO 80204 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

GARRATT COMPANY q 

Respondent 

' 

. . 

4 

. 

Docket No. WEST 91-27-M 

A.C. No. 02-02497-05502 

Lake Juniper 

Docket No. WEST 91-170-M 

A.C. No. 02-02497-05503 

Lake Juniper (Portable) 

DECISION 

Appearances~ Jan Mn Coplick, Esq., Office of the Solicitor, U.S. 

Bef oreg 

Department of Laborr San Francisco, California, 

for Petitioneri 

Mr. Richard L. Neal, Oimer, GARRATT COMPANY, Kingman, Arizona, 

pro~· · 

Judge Morris 

These cases are civil penalty proceedings initiated by Petitioner against Respondent pursuant to the Federal Mine Safety and 

Health Act of 1977u 30 U.S.C. § 801 1 et~ (the 11 Actn). The 

civil penalties sought here are for violations of the Act as well 

as vi tions of mandatory regulations .promulgated pursuant to 

Act 

A hearing on the merits was held in Kingman~ Arizona 1 on 

Apri 2lg 19920 The ties filed.post-trial briefs" 

Having considered the hearing evidence and the record as a 

wholeu I find that a preponderance of the substantialr reliable, 

and probative evidence establishes the following Findings of 

Fact: 

FINDINGS OF FACT 

1. COVY LUMPKINS, JR., now retired, was a federal mine 

inspector for 14 years. (Tr. 12-14,. 

1163 
2. Mro Lumpkins is an individual experienced in mining. 

(Tr. 14) • 

3. Mr. Lumpkins 0 initial inspection of the Garrett Company 

was a C.A.V. complimentary assistance visit. (Tr. 16). 

4. In this visit to the site, Mr. Lumpkins explained the 

regulations to Mr. Neal. 

So Mr. Neal 0 s property has a double gate. There was no 

buzzerv guardu or guard shack at the entrance. 

6. Since the gate was unlockedu Mr. Lumpkins drove in to 

the plant. 

7. Mr. Lumpkins keeps first aid material as well as safety 

equipment in the car. (Tr. ,?O) • 

8. there is no guard, the inspector will usually go 

directly to the mine or safety office. (Tr. 20). 

9. 

off ice. 

Mr. Nealus company did not have a guard or a safety 

(Tr. 2 0) • 

10. Subsequently, on his first regular inspection no citations were issued. Mr. Neal was very cooperative and he was in 

the process of correcting the violations previously noted at the 

time of the C.A.V. inspection. (Tr. 21). 

' r..--:~­

•. L .:- ,, 

2 f st a:r MSHA inspec on was January 1990. 

Ivir" Lumpkins testified he would not walk under any conveyor belts that would create a hazardous situation. 

(Tr o 24 I o 

__ ·.:. \.cJas at che :c z·st inspection when the Inspector moved 

c~:.s ca~ c.t vlr o l'\!eal.' s requesto ter the request.u he parked opposi te the eanout pi to {Tro 25u ,26) o 

~o The place where he parked was out of the way of the 

machineryo Tro 25 Q Mro Lumpkins parked where Mro Neal designated and he doesn~t recall Mr. Neal us correcting him after that. 

{ Tr o 2 5 v 6 3 ) o 

150 In the course of the inspections, Mr. Neal never again 

complained concerning the place where the Inspector parked his 

caro (Tro 26)" 

1164 
16. In April 1990y the second regular MSHA inspection 

resulted in the issuance of three tations. (Tr. 26, 27). 

Citation No. 3600335 

170 Citation No. 3600335 1 was issued when the Inspector 

observed the electric power cables were not properly bushed and 

connected at the switch station. (Tr. 2 8). 

18. The Inspector testified as to gravityQ likelihood of an 

accidentu and severity of any injury (Tr. 28-30) and the operator0s negligence. 

19. The Inspector considered it a non-S&S violation. The 

cables themselves were well in§ulat (Tr. 28q 29). 

DISCUSSION 

I agreeu as Mr. Nealus bri statesp that this condition was 

aba before the plant was operated. However, the Inspector's 

uncontroverted testimony establishes a violation. Abatement of a 

violative condition does not excuse the original violation. 

tation No. 3600335 should be firmed. 

is Citation all es Re ent elated 30 C.F.R. 

§ .12008. The regulation provides as followsg 

Power :res and ted 

tely where they or out of electrical compartmentso es l enter metal 

frames of motorsf splice boxesv and electrical 

compartments only through fittingso When 

insulated wiresv other than cables, pass through 

metal f ramesv the holes shall be substantially 

bushed with insulated bushings. 

1165 
Citation No. 3600336 

20. Citation 3600336 2 was issued when the Inspector observed there was no cover for the junction box on an electric 

motoro The junction box was 8 or 10 feet off the ground. (Tr. 

31, 57). If a person was servicing the motor, he could contact 

the box. (Tr. 57). 

DISCUSSION 

The uncontroverted testimony of Inspector Lumpkins establishes the operator violated the regulation. Mr. Neal did not 

testifyu but in his post-trial brief he states that no one saw 

the cover fall off the electrical box. 

Assuming there was evidence to support this view, it cannot 

prevail as a defense. It is well established that the Mine Act 

imposes liability without fault. See Asarco, Inc. - Northwestern Mining v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989 at 1197-

1198) ~ 8 FMSHRC 1632 (1986)v Western Fuels Utah, Inc. v. FMSHRC, 

870 Fo2d 711 (DoCo Ciro 1989) o 

21. A similar sort of penalty rating on the same 00.sis as 

discussed in the prior citation would result in a low civil 

p ena 1 ty o (Tr. 31) • 

Citation No" 3600336 should be affirmed. 

This Citation alleges Resp6ndent violated 30 CoF.R. 

56.12032 which provides as lows: 

§ S6ol2032 Inspection and cover plateso 

Inspection and cover plates on electrical 

equipment and junction boxes shall be kept in 

place at all times except during testing or 

repair so 

1166 
Citation No. 3600339 

22. Citation No. 3600339 3 was issued when the Inspector found the automatic reverse alarm was not working on the 

operator's front-end loader. (Tr. 32). Mr. Neal stated the buzzer had been working the morning of the inspection. {Tr. 60). 

23. The failure to have an alarm on the vehicle could result in someone being killed or injured when the vehicle backs up. 

(Tr o 3 2) • 

The Inspector's penalty factors would result in a low 

(Tr. 33)o 

25. Until this point in ,,time, Mr. Neal's and Inspector 

Lumpkins' relationship was fairly cordial1 Mr. Neal never expressed any concern that the Inspector was creating a safety 

hazard. (Tr. 33). 

DISCUSSION 

Mr. Neal did not testify in these proceedings and his statement that he was unaware of the failure of the signal is contained in his post-trial brief. Even so, as previously stated, 

an operator's failure to know of a violative condition does not 

relieve him of liability under the Mine Act. 

tation Noo 3600339 should be affirmed. 

This Citation alleges 30 c:FoR § 56.14132(a) which 

provides as follows~ 

§ 56.1~132 Horns and backup alarms$ 

(a) Manually operated horns or other audible warning devices provided on self-propelled 

mobile equipment as a safety feature shall be 

maintained in functional condition. 

1167 
Citation No. 3600491 

26. Citation No. 3600491 4 was issued on May 22, 1990, 

when Inspector Lumpkins conducted a follow-up type inspection on 

the operator's property. (Tr. 38). 

4 This Citation alleges Respondent violated Section 103(a) 

of the Mine Act which provides as follows: 

INSPECTIONSu INVESTIGATIONS, AND RECORDKEEPING 

Sec. 103. (a) Authorized representatives of the 

Secretary or the Secretary of Health, F.ducation, and 

Welfare shall make frequent inspections and investigations in coal or other mines each year for the purpose of ( 1) obtaining, utilizing, and disseminating 

information relating to health and safety conditions, 

the causes of accidents, and the causes of diseases 

and physical impairments originating in such mines, 

(2) gathering information with respect to mandatory 

health or safety standards, {3) determining whether 

an imminent danger exists, and (4) determining whether there is compliance with the mandatory health or 

safety standards or with any citation, order, or decision issued under this title or other requirements of 

this Act. In carrying out the requirements of this 

subsection~ no advance notice of an inspection shall 

be provided to any personQ except that in carrying 

out the requirements of clauses (1) and (2) of this 

subsectionv the Secretary of Healthv Education9 and 

Welfare may give advance notice of inspectionso In 

carrying out the requirements of clauses (3) and (4) 

of this subsection, the Secretary shall make inspections of each underground coal or other mine in its 

entirety at least four times a year and of each surface coal or other mine in its entirety at least two 

times a yearo The Secretary shall develop guidelines 

for additional inspections of mines based on criteria 

including 0 but not limited to 0 the hazards found in 

mines subject to this Act 0 and his experience under 

this Act and other health and safety lawso For the 

purpose of making any inspection or investigation 

under this Act, the Secretary, or the Secretary of 

Health, F.ducation, and Welfare, with respect to fulfilling his responsibilities under this Act, or any 

authorized representative of the Secretary of Health, 

Education, and Welfare, shall have a right of entry 

to, upon, or through any coal or other mine. 

1168 
27. Mr. Lumpkins found the prior violations had been 

corrected. (Tr. 35). 

28. Mr. Campa, Mr. Neal's a:nployee, did not express any 

concern that the Inspector was violating any safety rules or 

creating any safety hazards. (Tr. 35). 

29. Mr. Neal appeared at the job site and 11 jumped in to the 

middle" of the Inspector. Mr. Neal said the Inspector was trespassing and that he had no business on the property. (Tr. 35, 

36). 

30. 

Mr. Neal. 

(Tr. 3 6) • 

The Inspector tried to explain the right of entry to 

He further tried to show him his photo identification. 

31. The identification shows that Mr. Lumpkins is the 

authorized representative of the Secretary of Labor. (Tr. 37). 

32. After their confrontation, Mr. Lumpkins stood ~ his 

car until the deputy sheriff arrived. Upon his arrival the 

Inspector showed him his I .D. and Section 103(a) of the Mine Act. 

(Tr. 3 7 , 3 8) • 

33. Sergeant Hayes of the sheriff's office arrived. He 

said it was necessary for the parties to appear before the Justice of the Peace in Kingman, Arizona. (Tr. 40). 

340 Mro Lumpkins identified a document shown as a "Summonsv1 

and a Criminal Complain to ua Also attached was 11 A Motion to Dismiss for Lack of Evidenceo uu 'Ihese documents were served cy- mail 

on Mro Lumpkinso (Tro 44u Exo P-1) o 

350 Mro Neal did most of the talking at the site. He 

claimed the Inspector was trespassing and that he had no right to 

be on e operator~s propertyo (Tro 40)o 

36a The Judge in Kingman wanted Mr o Neal and the Inspector 

to resolve their differences privatelyv but Mro Neal refused. 

Tr o 41} o , 

37a The Court bailiffs finally advised Mr. Lumpkins that he 

was free to leave the Court facilities. 

38. The following day, Mr. Lumpkins communicated with his 

supervisor at the MSHA office in Phoenix. (Tr. 46). 

1169 
39. The Sheriff's department set up a procedure to assist 

the Inspector in serving a denial of entry Citation on Mr. Neal. 

(Tr. 4 9) • 

40. sergeant Hayes accompanied Mr. Lumpkins when he returned 

to Mr. Neal's property. (Tr. 49). 

41. The Inspector parked his automobile in the area where 

Sergeant Hayes parked. (Tr. 50). 

420 The Citation on May 24 was for a denial of entry that 

occurred on May 22. (Tr. 50). 

43. Mr. Neal did not comply and in the 30 minutes given to 

him to abate, he remarked to Sergeant Hayes that he was afraid 

Mr. Lumpkins was going to hurt himself, but no other comments 

were made why he had refused entry. (Tr. 53). 

44. After the 30-minute period expired, Deputy Hayes handed 

the denial of entry citation to Mr. Neal because he refused to 

accept it from Mro Lumpkins. (Tr. 54). 

45. Mr. Lumpkins recalled that Mr. Neal told him the safety 

policy of the plant was not to get within 25 feet of operating 

belts. However, Mr. Lumpkins doesn't recall Mr. Neal's shutting 

down at any time when the Inspector came on the property. 

(Tr. 6 3) • 

460 The plant was shut down for repair or servicing when 

Mro Lumpkins inspected It seemed like it was normally shut down 

~·Jhen the Inspector entered the property. (Tr o 6 3) . 

470 An MSHA inspector is not supposed to jeopardize himself 

during an inspectiono (Tr. 63)o If he did sou the plant safety 

manager could notify Mro Lumpkins 0 supervisoro ~Tro 64)o 

480 Garratt Company is ~ small operationu a simple screening 

plant with three beltso (Tr. 66) o 

490 Jack Sepulvedau an MSHA federal mine inspectorv was 

Mro Lumpkins 0 acting supervisor. (Tr. 71). Mro Lumpkins accompanied Mr. Sepulveda on the Wesapi Mining property. (Tro 71). 

50. A business card sul::mitted in evidence indicates William 

C. Vanderwall is an Arizona State Mine Inspector. (Tr. 74; Ex. 

R-1). 

51. Larry Nelson is Mr. Lumpkins' supervisor. David Park is 

MSHA's District Manager. (Tr. 75). 

1170 
52. Mr. Neal told Mr. Lumpkins that he didn't object to the 

plant 1 s being inspected but the Inspector would have to get 

Mr. Neal's permission before entering the property. (Tr. 80). 

Mr. Lumpkins said he could not accept such an arrangement. 

( Tr • 7 9 , 8 0) • 

53. In the Inspector's opinion, signing in at a mine gate 

is not a pre-condition of entry. (Tr. 80, 81). 

54. Other mining operations have designated parking areas. 

(Tr. 8 2) o 

55. Mr. Lumpkins recalled Officer Hayes 9 saying that 

Mr. Neal had rescinded his position of criminal trespass and that 

Mr. Lumpkins could inspect the plant. (Tr. 83}. Mr. Lumpkins 

nevertheless wrote the restraint of entry because Mr. Neal required prior notice of any inspection. (Tr. 83; 84). 

56. In July, after the previously discussed inspections, 

Mr. Lumpkins and Jack Sepulveda made a non-inspection visit to 

Mr. Neal 0 s property. At that time Mr. Neal again stated 

Mr. Lumpkins could not come on the property unless his conditions 

stated earlier were met. (Tr. 87, 89). 

57. The conditions sought to be imposed ~Mr. Neal were 

that the Inspector be accompanied by a Deputy Sheriff, that 

Mr. Neal be notified in advance, and that he consent to the entry. 

(Tr? 9 0) o 

5Bo LE1'5: OORWOOD JB!AYES 11 as an employee of the Mojave County 

.Sh fice, accompanied Mro Lumpkins to Mr, Neal us small 

planto (Tro 93u 94 o 

59 Sergeant Hayes didn 1 t understand that Mr o Neal had a 

on against Mro Lumpkinso Tr 94)o 

600 Sergeant Hayes empha zed he was on the Garrett property 

cO y rr.rkeep the peaceo" {Tro 94)o 

6L. Mr o Neal claimed the Inspector and the sergeant were 

guilty criminal trespass. However 11 he did not prevent the two 

men om walking around the propertyo (Tr. 95). 

62. Mr. Neal stated that the local Kingman, Arizona, Judge 

should rule on whether Mro Lumpkins had the right to enter the 

property. C Tr.. 9 5, 9 6) " 

63. Sergeant Hayes heard Mr. Neal explain to Mr. Lumpkins 

that he wasn't restraining him and he was free to inspect the 

1171 
plant. However, it seemed to Sergeant Hayes that the whole problem was that Mr. Lumpkins was to get permission from Mr. Neal to 

enter the property. (Tr. 96). · 

64. Sergeant Hayes recalled that Mr. Neal told Mr. Lumpkins 

he could go ahead and conduct an inspection. (Tr. 97). 

65. Sergeant Hayes did not recall any physical restraints or 

conditions put on Mr. Lumpkins. {Tr. 98). 

66. During the 30-minute abatement period, the parties involved stood by the police car. (Tr. 99). 

670 Sergeant Hayes saw no physical or verbal abuse while he 

was on the site. (Tr. 99). 

68. Sergeant Hayes described Mr. Neal as adamant that 

Mr. Lumpkins was trespassing.·· He kept insisting he had to return 

to the gate and get Mr. Neal's permission. (Tr. 100-101). 

69. Mr. Neal told Sergeant Hayes that Mr. Lumpkins was a 

safety hazard and that he had parked his car in an improper place. 

(Tr o 10 3) • 

70. Sergeant Hayes identified an audiotape as well as a 

transcription of his statement to the Secretary's counsel. 

(Tro 104-107; Ex. P-2, P~2-A). The Judge reviewed the tape [Ex. 

P-2(a)] and, while there are frequent background noises, the 

transcription (Exo P-2) is reasonably accurate. 

710 Sergeant Hayes believed the proper course of action was 

.. or Mro Neal to fi a complaint with the Arizona Courto 

Tz: c, ll 16 o 

720 The declaration of Jack Sepulveda was received in evidence by agreement of the parties. 

On July 19Q 1990r lV.iro Sepulveda inspected the Wesapi Portable Mine which is located on the property of Mro Nealg Mr. Neal 

advised Mro Sepulveda that Mr Lumpkins could not inspect the 

mine unless he was accompanied by a deputy sheriff. His reason 

was that he was afraid Mro Lumpkins might be injured. If he 

walked under a conveyor beltQ rocks could fall on him. [Tr. 12li 

Ex o P-3 Q P-3 (a ) ] 

DISCUSSION 

Mr. Neal in his post-trial brief, initially asserts that 

Mr. Lumpkins knew the company's parking and safety rules; nevertheless, he failed to follow them. Specifically, Mr. Neal cites 

1172 
the transcript at page 75, lines 10-12, as well as the testimony 

of witnesses Campa, Riccardi, and Hanson. 

The portion of the transcript apparently relied on by 

Mr. Neal reads: 

Q. Did Larry Nelson ever discuss the fact that you may 

have been parking your vehicle in a hazardous position and entering under dangerous belts? 

Ao No. The only thing I remember is the parking business, and you told me where you wanted me to park, 

and that's where I parked. And--

Q. Okay, but Larry Nelson never discussed any of that 

with you, right? 

A. Offhand I can't remember. He could have, but I, 

I don't recall. 

( Tr o 7 5 v 1 in es 7 -1 6 ) ., 

I am aware of the testimony of Mr. Neal's witnesses. 

SHANE CAMPA, a loader operator, testified he observed 

Mr. Lumpkins park behind the loader. (Tr. 147, 149). Further, 

more than once he saw Mr. Lumpkin walk under the feeder belt. 

{Tr o 150) o 

RICHARD So RICCARDiu a loader and screening plant operator u on one occasion observed Mr. Lumpkins park his car in the 

line of travel of the loader. Further, on one occasion he observed Mro Lumpkins walk under the Noo 1 feeder belt which carries heavy rock materialo (Tro 131)0 

LLEWELLYN BENRY BANSONP experienced in the operation of 

heavy equipmentu discussed with Jack Sepulveda that the Inspector 

was parking his vehicle in a hazardous locationo Further, he 

could be struck by rocks when walking under the conveyor beltso 

(Tr 16 6) o 

Inspector Lumpkins also stated he was nearing retirement and 

was concerned he would lose his job. (Tr. 167, 170). 

The principal focus of Mr. Neal's evidence and argl.'lnents are 

directed at the activities of Inspector Lumpkins. However, that 

evidence and arguments are not relevant to the denial of entry 

Citation. 

1173 
The right of entry is provided by the Mine Act itself. Section 103(a) alleged in the Citation to have been violated here by 

the operator in its pertinent part provides: 

Authorized representatives of the Secretary 

shall make frequent inspections and investigations in coal or other mines ••• In carrying 

out the requirements of this subsection, no advance notice of an inspection shall be provided 

o•o [and the authorized representatives] shall 

have a right of entry to, upon, or through any 

o o o mineo 

The U .So Supreme Courtv in construing the Mine Act, has explicitly recognized the fundamental importance of the right of 

entry provisionsv as discussed in the case of Donovan v. Dewey, 

452 UoS. § 593, 69 L.Ed.2d 262 (1981)). In Dewey, the Supreme 

Court stated that: 

Congress was plainly aware that the mining 

industry is among the most hazardous in the 

country and that the poor health and safety record of this industry has significant deleterious 

effects on interstate commerce. 

See also Tracey & Partners, et al., 11 FMSHRC 1457 (August 

1989), wherein the Commission held that Section 103(a) of the 

Mine Act confers on MSHA a broad right of entry to mines for the 

purposes of inspection and investigationo (11 FMSHRC at 146l)o 

Mro Nealr :Ln s brief" states that at no time did he stop 

·:.he Inspector :Ez-om entering the property and perfonning his inspectiono If the evidence supports Mro Nealv the Citation should 

be vaca tedo 

e issuance of a criminal trespass charge on the complaint 

f Mro Neal against e MSHA Inspector constituted 0 as a matter 

law0 a restraint the Inspector from entering the mine 

property o (See Ex o } o It is further uncontroverted that 

Mro Neal 0 s restraint conditions were that the Inspector be accompani ~J the deputy sheriffif that Mro Neal be advised in advance7 and that he consent to the entryo (Tro 90) o 

Mro Neal also insisted that the Inspector return to the 

plant entrance and request his pennission to conduct an inspectiono In effect, Mr. Neal claims he is entitled to prior notice 

of the Inspector's visit. However, such prior notice would run 

directly contrary to Section 103(a), which specifically states 

that 11 no advance notice of an inspection shall be provided to any 

persone... $ n 

1174 
FURTHER DISCUSSION 

It was also claimed at the hearing that an inspection of the 

"Wesapi" Mine (apparently located on Mr. Neal's property) was 

more stringent than the instant inspection. However, Mr. Neal 

did not raise this issue in his brief and the evidence (Ex. P-4) 

shows the "Wesapi 11 inspection was at least equally as stringent 

as the inspection in contest. 

For the foregoing reasons, Citation No. 3600491 should be 

affirmed. 

CIVIL PENALTIES 

The statutory criteria to assess civil penalties is 

contained in Section 110( i) 'of· the Mine Act. 

The evidence establishes that Respondent is a small operator 

and the penalties contained in the order of this decision are 

appropriate in relation to the company's size. 

The record does not present any information concerning the 

operator's financial condition. 'Iherefore, in the absence of any 

facts to the contrary, t find the payment of penalties will not 

cause the Respondent to discontinue in business. Buffalo Mining 

Co., 2 IBMA 226 (1973) and Associated Drilling, Inc., 3 IBMA 226 

{1973) 0 

The operator was negligent in that the first three viola-

·cive conditions were open and obvious o The company was further 

n igent as to the 103(a) Citation? inasmuch as it should have 

known of the Inspectorus right of entry. 

There was no evidence showing any adverse prior violations. 

agree with the Inspector 3 s evaluation that the gravity as 

to the first three violations was J.ow. However 11 the right of 

en a Keystone to the Mine AcL Accordinglyu I consider the 

denial of that right to present a situation of high gravity. 

The operator showed statutory good faith in abating the four 

Citations. 

On l:alance, I believe the penalties assessed in the order of 

this decision are appropriate. 

Accordingly, I enter the following: 

1175 
ORDER 

1. Citation No. 3600335 is AFFIRMED and a civil penalty 

of $20 is ASSESSED. 

2. Citation No. 3600336 is AFFIRMED and a civil penalty 

of $20 is ASSESSED. 

3. Ci ta ti on No. 3600339 is AFFIRMED and a civil penalty 

of $20 is ASSESSED. 

4. Citation No. 3600491 is AFFIRMED and a civil penalty 

of $250 is ASSESSED. 

Judge 

Distributiong 

Jan Mo Coplick 0 Esqov Office of the Solicitoru U.S. Department of 

Labor 9 71 Stevenson Street #1110 0 San Franciscou CA 94105-2999 

(Certified Mail) ' 

Mro Richard Lo Neal 0 0Wner 0 GARRATT COMPANY, 817 South Shore 

Driveu Kingmanu AZ 86401 (Certified Mail) 

ek 

1176 
FEDERAL MINE SAFETY ANO HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

ROOM 280, 1244 SPEER BOULEVARD 

ROGER VOGT, 

Comp la i nan t 

v. 

N.A. DEGERSTROM, INC., and 

ZOR'l'MAN MINING, INC., 

Respondent 

DENVER, CO 80204 

July 15, 1992 

. .. 

0 

.. 

: 

: 

: 

G 

e 

DISCRIMINATION PROCEEDING 

Docket No. WEST 92-225-DM 

RM MD 92-02 

Zortman Mining 

ORDER OF PARTIAL DISMISSAL 

Before: Judge Morris 

Complainant Vogt and Respondent N.A. Degerstrom, Inc., 

reached an amicable settlement on the merits and moved that the 

complaint herein be dismissed betweem said parties. 

Accordingly, I enter the following: 

ORDER 

~o The complaint is DISMISSED ~ith prejudice as to :i~espondent. N oA o Degerst.romo 

2o The complaint will remain pending as to Zortman Mining, 

Inc .. IJ and the hearing will proceed as scheduled on August 19, 

199217 in Kalispell 0 M:>ntanao 

ris 

rative Law Judge 

Distributiong 

Paul R. lBffeman, Esq., CURE, BORER & DAVIS, P.c., P.O. Box 2103, 

Great Falls, MT 59403-2103 

Michael D. Cok, Esq., COK & WHEAT, 108 West Babcock, P.O. Box 

1105, Bozeman, MT 59771-1105 

Thomas E. Hattersley III, Esq., GOUGH, SHANAHAN, JOHNSON & 

WATERMAN, 301 First National Bank Building, P.O. Box 1715, 

Helena, MT 59624-1715 

1177 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 2 U \992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)q 

Petitioner 

Docket No. PENN 91-1398 

A.C. No. 36-00907-03763 

v. 

Shannopin Mine 

SHANNOPIN MINING COMPANY, 

Respondent 

Appearances: 

Before~ 

DECISION 

Theresa c. Timlin, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Joseph A. Yuhas, Esq., Shannopin Mining Company, 

Barnesboro, Pennsylvania, for the Respondent. 

Judge Koutras 

Statement of the Case 

proceeding concerns proposals for assessment of civil 

9enalties filed by the petitioner against the respondent pursuant 

to section 110 a) of the Federal Mine Safety and Health Act of 

1977; 30 u.s.c. § 820(a)u seeking civil penalty assessments for 

four alleged violations of certain mandatory safety standards 

found in Parts 75 and 77v Title 30r Code of Federal Regulations. 

·The respondent filed an answer contesting the alleged violations, 

and a hearing was held Washington, Pennsylvania. Three of the 

violations were settled, and testimony and evidence was received 

with respect to the remaining violation. The parties filed 

posthearing briefs, and I have considered their respective 

arguments in my adjudication of this matter. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 u.s.c. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. 30 C.F.R. § 75.1725(a}. 

4. Commission Rules, 29 C.F.R. § 2700.1 et seg. 

1178 
Issues 

The issues presented are (1) whether the cited conditions or 

practices constitute a violation of the cited standard; (2) 

whether the alleged violation was significant and substantial 

(S&S); and (3) the appropriate civil penalty to be assessed for 

the violation taking into account the civil penalty assessment 

criteria found in section llO(i) of the Act. 

Stipulations 

The parties stipulated to the following (Tr. 6; Exhibit 

{ALJ-1)~ 

l. The Shannopin Mine is owned and operated by the 

respondent and it is subject to the jurisdiction of the Act. 

2. The presiding judge has jurisdiction in this proceeding. 

3. The citation and termination in this case were properly 

served by a duly authorized representative of the Secretary 

of Labor upon an agent of the respondent at the date and 

place stated therein and may be admitted into evidence for 

the purpose of establishing that they were issued. 

4. The parties stipulated to the authenticity of their 

exhibits but not to the relevance or the truth of the 

matters asserted therein. 

5. The alleged violation was abated in a timely fashion. 

co The respondent 1 s story of assessed violations for the 

two year period prior to the issuance of the subject 

citation was 764 

7. The imposition of the proposed civil penalty will have 

no affect on the respondent's ability to remain in business. 

8. The respondent 1 s annual coal production is approximately 

1,246,799 tons. 

The parties decided to settle three of the contested 

citations and they filed a motion pursuant to Commission Rule 30 1 

29 C.F.R. § 2700.30(c), seeking approval of their proposed 

settlements. Testimony and evidence was received with respect 

to the following citation which the parties were unable to 

resolve by settlement (Exhibit P-A). 

Section 104(a) "S&S" Citation No. 3702139, issued on May 24, 

1991, by MSHA Inspector Ronald E. Hixson cites an alleged 

1179 
violation of mandatory safety standard 30 C.F.R. § 75.1725(a), 

and the cited condition or practice is described as follows: 

Shuttle car serial No. 6024 located in the 2 West 

section was not being maintained in safe operating 

condition. The canopy was bent forward and there were 

2 broken welds where the standards were previously 

attached to the shuttle car. The shuttle car was 

immediately removed from service. There were 4 citations issued under 75.1725(a) during the inspection 

period 10/2/90 to 2/5/91. 

Petitioner 1 s Testimony and Evidence 

MSHA Inspector Ronald E. Hixson testified as to his 

experience and training and he confirmed that he conducted a mine 

inspection on May 24v 1991, and that he issued the contested 

citation after finding that the cited shuttle car canopy was 

damaged. Mr. Hixson stated that the canopy appeared to be 

striking the mine roof or some other object in the mine, and he 

observed two broken welds on the inside standards or legs that 

support the canopy and the canopy was leaning in a forward 

position. He believed that there was a danger for anyone to 

operate the car in that condition. The car was available for 

operation and it was not locked out or tagged. If a piece of 

equipment is not safe, it should be locked and tagged out, or as 

a minimum, tagged out. The car was located in the working 

section and he had requested the section foreman to have someone 

tram the car down the intake escapeway so that he could examine 

it for permissibility. The power was off when Mr. Hixson 

examined the T:;::-. 7-13 i c 

Mr. f a ~opy of inspection notes, 

a s1<et.ch of t.he canopy: and he confirmed that it was 

supported four legsv or standards, one in each corner. He 

stated that the two broken welds were located on the two legs 

closest to the ide of the car and that the canopy was leaning 

in a towards the front of the car. The 

standards ·were approximately 24 ·co 30 inches long, and they are 

welded t.o the frame of the car to provide support for the canopy. 

The broken welds were approximately "a couple of inches off" the 

bottom of the standards. He found nothing wrong with the welds 

at the base of the standards and at the canopy roof. If the welds 

were intact the canopy would be "in a straight up and down 

position'1 • However with the broken and damaged welds, the 

canopy was pushed forward. He took no measurements and did not 

know the degree of lean of the canopy, but 11 it was clearly 

visible to the naked eye 11 (Tr. 13-18). 

Mr. Hixson confirmed that he cited a violation of 

section 75.1725 (a), but could have cited a violation of 

1180 
section 75.1710. However, he decided that section 75.1725(a) was 

more appropriate because he was concerned about someone operating 

the machine and he wanted to take it out of service. He believed 

that the broken welds rendered the machine unsafe because the 

canopy was obviously striking something very hard and he feared 

that the canopy might fall into the operator's compartment and 

injure the operator. He was also concerned that the canopy would 

not withstand the pressure that it was designed and certified to 

take in the event of a roof fall. The fact that the mine has a 

lot of reportable roof falls which have occurred above the roof 

support anchorage zone added to his concern that the canopy was 

not in a safe condition. He identified copies of MSHA 

Form 7000-1, submitted by the respondent during the period 

March 14, 1991 to March 11, 1992, reporting roof falls in the 1, 

2, and 3 West sections of the mine, and he identified the areas 

where the falls occurred on a mine map used in the course of the 

hearing (Tr. 19-24; Exhibit P-D). 

Mr. Hixson stated that he based his "significant and 

substantial" hazard finding on the following (Tr. 25-26): 

A. I 1 ve got a canopy that's damaged through striking 

something very hard. I've got a situation where a canopy 

could fall on somebody and hurt them, of which it has 

happened in the past. 

I've got a situation where I've got a canopy that is 

supposed to withstand so many pounds of pressure in a 

vertical position, and now I have one leaning in, not 

totally horizontal, but it's leaning forward and the 

standards are not straight up and down. And I have no 

idea to know now whether it can withstand the pressures 

that the certified engineer certified will 

withstand. 

Mr. Hixson stated that his ''S&S" hazard finding was also 

influenced by the fact that he did not know who might be 

operating the shuttle car at any given time. Although an 

operator who was aware of the fact that the damaged canopy was 

striking the roof might avoid that particular route of travel, 

someone assigned to drive that machine who was not aware of the 

tramming route of travel or that the canopy was striking the roof 

might take a hazardous route causing enough additional damage 

which might result in the collapse of the canopy, If the damaged 

canopy collapsed and fell on the machine operator, it was 

reasonably .likely that he would be injured. In the event of a 

roof fall, and the canopy did not hold the roof material, the 

operator could be killed (Tr. 26-27). Mr. Hixson was aware of 

past incidents where a canopy has collapsed and injured an 

operator, but not at the respondent's mine (Tr. 28-29; 

Exhibit P-E). 

1181 
Mr. Hixson confirmed that he found a moderate degree of 

negligence and that he based this finding on the fact that the 

canopy was going to be repaired on an idle shift or over the 

weekend (Tr. 29). However 1 he also believed that the canopy was 

unsafe and that it should have been repaired immediately. A new 

canopy was installed and the citation was terminated (Tr. 30). 

on cross-examination, Mr. Hixson confirmed that he opted to 

cite a violation of section 75.1725 rather than 75.1710, because 

he believed that the shuttle car was unsafe to operate and that 

it would have endangered anyone who operated the car if he had 

not taken it out of service. He did not believed that citing 

section 75.1725 was contrary to the MSHA policy manual instructions that section 75.1725 is only to be cited if no other 

regulation applies. He did not believe that section 75.1710, was 

applicable because the canopy, as originally installed, was 

proper, and that section does not address canopy maintenance 

(Tr. 31-32}. 

Mr. Hixson confirmed that he did not issue an imminent 

danger order because he observed no one under the canopy and the 

car was parked in the cross cut. In support of his "reasonably 

likely and fatal" injury gravity finding, Mr. Hixson explained 

that since the damaged canopy was striking something very hard, 

he believed that it could happen again and that further damage 

could cause it to topple in on the operator. Further, with the 

two broken welds and the canopy leaning, he did not know whether 

it would withstand or hold the weight as it was originally 

certified by an engineer. Although he believed that he was 

qualified to determine if the canopy was unsafe at the time he 

observed it he was not qualified at that time to determine 

whether or not w·ould withstand 1800 pounds (Tr. 32-33). 

Mro confirmed that he made no measurements, and he 

estimated that the roof of the canopy would be three to five 

inches above the head of the operator, but that this would depend 

on the particular operator. The average mining height in the 

2 West section averaged six to seven feet and he had no trouble 

·wa.l anywhere the section (Tro 32-33). 

Mr. Hixson explained his understanding of the meaning of 11 reasonably likely to occur 11 as follows~ 11 • o • the continued 

presence of the situation, it s reasonably likely that it could 

occur ... that if I continue to let it run that there's the 

possibility that somebody could be hurt" (Tr. 33). He further 

explained that the 2 West section was a relatively new section, 

and that the large number of falls in the 1, 2, and 3 West 

sections led him to believe that "If you plot the falls across 

there, the likelihood of a fall occurring is reasonably likely to 

occur in that area. That's a large number of falls for an area 

of that size" (Tr. 34) . 

1182 
Mr. Hixson agreed that a person walking next to the shuttle 

car and the miner helper are not required to have a canopy over 

their heads, but that section 75.1710, requires that face haulage 

equipment have a canopy for the operator. He pointed out, 

however, that most fall problems occur inby the last open 

crosscut where equipment operators spend most of their day at the 

edge of unsupported roof and that the regulations were written to 

provide them with as much protection as possible since they are 

disturbing the roof and causing most of the vibration 

(Tr. 35-36). 

Mr. Hixson conceded that he had no way of testing the canopy 

underground as an engineer would to determine whether it was 

sufficient to hold its certified load. He stated that the canopy 

is designed to hold a vertical load rather than a horizontal 

load, and he believed that the broken welds on two of the canopy 

legs affected the integrity of the canopy. If the welds were 

intact, the legs would have been straight up and down, and they 

would not have been damaged even if .. the canopy struck the roof. 

He stated that the canopy was leaning forward, and although he 

could not state where the legs were bent, he believed that 

"something had to be bent" since the canopy was tilting forward 

(Tr. 38). 

Mr. Hixson confirmed that he assumed that the canopy 

involved in the accident at another mine operation (Exhibit P-E) 

was a substantial canopy. He agreed that a new canopy which is 

perfectly intact could fall on someone. He did not know whether 

the two shuttle cars were similar, but believed that the mining 

conditions were likely similar (Tr. 41). He confirmed that one 

"canopy save" occurred at the Shannopin Mine when a miner 

operator was covered up and had to be dug out, but he was not 

aware of any rod;: falls on shuttle car canopies F and would only 

know about such an incident if it a reportable fall or someone 

is entrapped (Tr. 42). 

Mr. Hixson stated that he detected no problems with the 

welds on the legs of the canopy where they attached to the 

shuttle car. The welds were covered with paint and he had no 

idea what was under the paint. He did not know whether the 

damaged canopy would sustain any kind of load and stated that 

"possibly one more hit and it could come down" (Tr. 43). 

However? he believed that the canopy would have deflected smaller 

pieces of rock that might cause injuries (Tr. 43-44). He 

confirmed that after observing the broken welds and the canopy 

leaning, he concluded that it would not do the job that it was 

engineered to do. He also confirmed that he did not grab and try 

to shake the two legs with the broken welds, and that the welds 

were completely broken and not simply cracked. Based on the 

condition of the canopy, he concluded that "it had to be striking 

something on the mine roof or some other piece of equipment 

fairly hard". He was not certain whether the welds were part of 

1183 
the canopy installation or the support, but confirmed that the 

welds hold the standards in an upright position. The purpose of 

the canopy is to protect the operator from rock falls or falling 

materials (Tr. 45-50). Mr. Hixson confirmed that he did not 

determine how long the damaged canopy condition had existed and 

that he did not seek out the person who operated the car on the 

prior shift (Tr. 52). 

Respondent's Testimony and Evidence 

Joseph K. Caldwell, respondent's safety director, testified 

that he was very familiar with the roof conditions at the mine. 

He confirmed that roof falls have occurred "in a certain way", 

and that 90 percent of the falls have occurred when everyone on 

the section has moved 10 to 15 rooms inby. Several weeks might 

pass before the roof deteriorates, sags, and then eventually 

falls out. He described the overall roof conditions as "good, 

decent" (Tr. 53-54). 

Mr. Caldwell agreed with the inspector's description of the 

overall construction of the canopy. It was his understanding 

that the base of the canopy legs were substantially welded, and 

that approximately 18 inches up the legs the welds were broken on 

the braces. He stated that the canopy legs fit inside the 

standards and that the broken welds were on the standards 

(Tr. 54-56) . 

On cross-examination, Mr. Caldwell confirmed that he did not 

accompany the inspector during his inspection on May 24, 1991, 

was not present when he examined the shuttle car and the canopy, 

and that he did not examine the car or the canopy that day 

(Tro 59-60) o A new canopy was immediately installed to abate the 

citation but Mr. Caldwell did not inspect the damaged canopy 

after was replaced" He agreed that a canopy with two support 

legs or standards in a bent condition could present a problem. 

However, based on his knowledge of a canopy that is substantially 

constructed, and the fact that everything else was basically 

intact, he not bel it was unsafe (Tr. 61-62). He stated 

that there are bolts that fasten the legs to the canopy and that 

"there is a certain degree of play in the bolt where it 1 s 

attached to the standard" and that it "could appear to be bent 

looking" (Tr. 64). 

Inspector Hixson was recalled, and he confirmed that he did 

not measure to determine how far forward the two standards with 

the broken welds were bent but that "it was obvious to the eye 

whenever I first glanced at it that it was damaged . . . and 

that's when I discovered that the welds were broken" (Tr. ·64-65). 

He agreed that a canopy does have "some inherent play" and that 

1184 
there is a slight tilt. In such a situation he would not cite 

it. However, if he "feels that it 1 s been damaged by being struck 

or that there's a problem, then I'm going to look a lot closer" 

(Tr. 64). 

Mr. Hixson was of the opinion that the intent of 

section 75.1725 is to insure that the equipment is safe for 

anyone who operates it, but it does not require that equipment be 

maintained exactly as it was when it was placed in operation 

underground. He was not aware of any canopy testing conducted 

underground, or any MSHA studies concerning damaged canopies, or 

canopies with broken welds. His understanding of section 

75.1710, is that it requires an engineer to subject a canopy 

ready for use to certain load pressures stated in the regulation 

(Tr. 69). 

MSHA's Arguments 

With regard to the appliGation of the canopy regulations 

found at 30 C.F.R. § 75.1710 and 75.1710-1, MSHA takes the 

position that these regulations address only the conditions under 

which canopies are required, and the initial configuration 

required so that a canopy may be certified as "substantially 

constructed". MSHA states that the parties are in agreement that 

canopies are required in the respondent's mine and that the 

canopy installed on the cited shuttle car was initially certified 

as substantially constructed. 

MSHA asserts that no cases have construed section 75.1710 

and 75.1710-1 to impose a requirement that operators maintain 

cabs or canopies and that general, the case law discussing 

violations of §7501710 or §75.1710~1 have addressed whether 

canopies are required either ii--:. c_ , 

Mining Co. 4 FMSHRC 1207 (July 1982); or on a particular piece 

of equipment, Peabody Coal Co., ~1 FMSHRC 4 (January 1989); 

Sewell Coal Co., 5 FMSHRC 2026 (December 1983); or whether 

operating a piece of equipment without a canopy is a significant 

and substantial violationr .. 

10 FMSHRC 603 (May 19881 

MSHA confirms that 1990 Program Policy Manual 1 Volume v, 

Part 75, pg. 158 instructs that section 75.1725(a) 11 in no way 

affects enforcement of other mandatory safety standards and 

should be used only where such condition is not covered by any 

other regulation11 • MSHA concludes that since the cited condition 

is not covered by any other regulation the inspector appropriately cited a violation of section 75.1725(a), and that the 

issue presented in this case is whether or not the shuttle car 

canopy, "which had sustained extensive damage'', was in a safe 

operating condition. 

1185 
MSHA acknowledges that in order to establish a violation of 

section 75.1725(a), it must establish the equipment's use or 

availability for use. (Explosive Technologies International, 

Inc., 14 FMSHRC 59, 64-65 (January 1992). However, MSHA asserts 

that a violation can occur even if the equipment is not in actual 

use at the time the citation is issued, Explosive Technologies 

International, Inc., 14 FMSHRC at 65, citing Mountain Parkway 

Stone, Inc., 12 FMSHRC 960, 962-963 (May 1990). In the instant 

case, MSHA relies on the inspector's testimony that the shuttle 

car was located on a working section and was available for 

operation as it was not locked out or tagged out and that the car 

operator trammed it down the intake escapeway so that the 

inspector could inspect it. 

Citing Peabody Coal Company, 1 FMSHRC 1494, 1495 (October 

1979), MSHA asserts that section 75.1725(a) required the 

respondent to maintain the shuttle car canopy in safe operating 

condition and to remove the unsafe canopy or car from service. 

MSHA concludes that derogation of.either duty constitutes a 

violation of the cited section.·· citing consolidation Coal 

Company, 11 FMSHRC 2279, 2282 (November 1989), quoting Webster's 

Third New International Dictionary, 1986 Edition, MSHA points 

omit that "safe" has been defined as "free from damage, danger or 

injury, secure ... u MSHA asserts that section 75.1725(a) is a 

recognized broad safety standard aimed at preventing hazardous 

conditions as well as correcting them, that it is not necessary 

for the hazard to fully materialize before remedial action is 

required, and that if unsafe equipment is operated, a violation 

exists whether or not the operator knew of the unsafe condition. 

Secretary v. Alabama By-Products, 4 FMSHRC 2128, 2131 

(December 1982) ~ Peabody Coal Company, supra at 1 FMSHRC 1495~ 

Peabody Coal Company, 2 FMSHRC 1683 1684 (June 1980), 

on the Commission s decision in the Alabama By-

--=-=-=-=~::...=.:~==< supra, at 4 FMSHRC 2129, MSHA points out that the 

standard for determining whether machinery is in u

1safe operating 

condition11 nwhether a reasonably prudent person familiar with 

the factual circumstances surrounding the alleged hazardous 

-:- any facts peculiar to the mining industry, 

would recognize a hazard warranting corrective action within the 

purview of the applicable regulationH, MSHA also cites secretary 

v. Ideal Cement Co., 13 FMSHRC 1346, 1348 (September 1991), a 

case which the 11 reasonably prudent personH test was applied to 

an alleged violation of 30 C.F.R. § 56.9002, requiring that 

equipment defects affecting safety be corrected before equipment 

used. 

MSHA maintains that the respondent violated section 

75.1725(a) by its failure to maintain the canopy in a safe 

operating condition. MSHA concludes that the inspector was 

correct in his conclusion that a violation existed based upon the 

results of his investigation. In support of this conclusion, 

1186 
MSHA relies on the testimony of the inspector that the canopy was 

leaning forward, its legs were bent, and that the welds which 

held the inner legs upright were completely broken. MSHA points 

out that the respondent presented no testimony disputing the 

inspector's factual testimony regarding the condition of the 

canopy at the time of the issuance of the citation, but instead, 

presented only the testimony of Safety Director Joseph Caldwell, 

who did not view the canopy either before or after the issuance 

of the citation. 

Although Mr. Caldwell was of the opinion that the broken 

welds were not on the canopy legs but on the standards attached 

to the shuttle car, which the canopy legs fit inside of, MSHA 

asserts that if these 11 standards 11 (which Mr. Caldwell suggests 

were not a part of the canopy but were attached to the shuttle 

car) were bent, simply putting a new canopy on would not solve 

the problem because the canopy would still be leaning forward. 

Alternatively, if the canopy legs were bent, as the inspector 

testified, and the welds held-.the l.egs to the frame of the 

shuttle car, MSHA concludes that placing a new canopy with 

straight legs on the shuttle car and rewelding the legs, would 

alleviate the problem. MSHA asserts that there is no dispute 

that the violation was abated by replacing the old canopy with a 

new one and no attempt was made to correct the problem by simply 

repairing the broken welds. MSHA points out that Mr. Caldwell 

admitted that the damage to the canopy involved the "integrity of 

the structure" which the respondent's maintenance employees will 

not attempt to repair (Tr. 63). 

MSHA believes that it is clear that given the factual 

circumstances surrounding the damaged canopy, including the 

of roof falls peculiar to the mine 7 a reasonably prudent 

should have recognized the danger of allowing a shuttle 

car with a s leaning canopy to continue to operateo In 

support of this conclusion 1 MSHA asserts that the inspector 

recognized two possible hazards in allowing the shuttle car to 

continue in use. One hazard was that the canopy would not be 

able to protect the shuttle car operator the event of a roof 

fall. The inspector fied that the canopy designed to 

hold a vertical load, and when is leaning, and the legs are 

bent: he believed that was questionable that the canopy would 

be able to withstand the pressures it designed and certif 

to take. 

MSHA further points out that the inspector was aware that the 

mine had a significant history of roof falls, particularly in the 

West sections of the mine, where the shuttle car was operating. 

MSHA concludes that a reasonably prudent person, familiar with 

the significant history of roof falls in the Mine, should have 

recognized that the visibly leaning canopy with broken welds 

where the canopy legs should have been attached to the frame of 

the shuttle car was unsafe and presented a hazard that warranted 

1187 
corrective action. MSHA further concludes that the condition of 

the canopy itself presented a hazard, in that the canopy was 

likely to collapse in on the operator of the shuttle car. MSHA 

believes that this was not a situation where the canopy shuttle 

car had scratches or minor dents from striking the roof or 

deflecting falling objects, but rather, the shuttle car had 

become damaged by striking something particularly hard and that 

hitting the mine roof would cause further damage to the shuttle 

car, which could be enough to cause it to collapse. 

Finally, MSHA asserts that it is clear that a reasonably 

prudent person, familiar with the fact that a canopy on a 

shuttle car is obviously leaning; that the ability of the canopy 

to withstand the amount of pressure which it is certified to 

withstand in the event of a roof fall is seriously compromised by 

its leaning positjon; that although canopies are designed to 

withstand some damage from bumping the mine roof, the extent or 

degree of this canopy 1 s decline, as well as the bent legs on this 

canopy, indicated that the canopy·had stricken something hard, 

most likely area(s) of the roof; that operators of face equipment 

such as shuttle cars are more frequently exposed to unstable roof 

and roof falls; and that there was a significant history of roof 

falls in the West section of Shannopin Mine; would recognize a 

hazard warranting immediate corrective action. 

Respondent@s Arguments 

The respondent asserts that MSHA has failed to prove that 

the condition of the cited canopy in question caused the shuttle 

car to be in an unsafe operating condition, and that it has no 

proof to support the alleged violative conditions described in 

the citationo In support of its argument, the respondent 

maintains that MSHA 1 s case rests primarily, if not solely, on the 

inspector's v examination that the canopy was leaning and 

two welds were broken. The respondent relies on the frequent 

admissions by the inspector (Tr. 26, 32, 37), that he did not 

know whether the canopy would withstand the pressures it was 

required to thstandr and it concludes that these admissions 

alone support c conclusion that MSHA has failed to prove the 

shuttle car was in an unsafe operating condition. 

The respondent states that a close look at the evidence in 

case shows that the inspectoris allegations in the citation 

have no reasonable foundation. In support of its conclusion, the 

respondent points out that the canopy legs fit into additional 

legs or standards which were welded onto the shuttle car, and 

that these additional legs or standards were intact and there 

were no detects where the legs of the canopy were attached to the 

canopy itself (Tr. 17, 43, 55, Gov't Exh. B). Conceding that 

there were two broken welds on the inner two legs of the canopy, 

the respondent points out that the welds on the outer legs were 

intact and that the inspector was not aware of the purpose of the 

1188 
broken welds and admitted that the tilt on the canopy posed no 

problem (Tr. 15, 17, 65). Respondent further asserts that the 

canopy could not have been tilted to any great degree because the 

two outside welds were intact indicating that there was very 

little tilt to the canopy. 

The respondent points out that Mr. Caldwell and the 

inspector confirmed that there is some "play" in the canopy where 

the leg fits into the standard (Tr. 64-65). Respondent asserts 

that the canopy legs, placed in the standards, provided the 

required support for the legs. Respondent suggests that the 

welds were apparently only an attempt to eliminate some of the 

play or looseness where the legs fit into the standards, even 

though the play itself did not present a hazard (Tr. 64, 65). 

Respondent also suggests that the welds may have been applied to 

prohibit adjustment of the canopy, given the fact that it had 

been scraping the roof at some time in the past. Respondent 

asserts that the evidence indi,cates that the welds were not even 

necessary to maintain the canopy, and it submits that a complete 

absence of all four welds where the canopy legs entered the 

standards would have no significant impact on the integrity of 

the canopy. The respondent further concludes that the evidence 

fails to show that the inspector 1 s basis for issuing the 

citation, the tilt in the canopy and the two broke welds; 

rendered the equipment unsafe. 

The respondent argues further that the fact that the 

inspector did not issue a citation alleging a violation of 

30 C.F.R. § 75.1710, which requires the shuttle car to be 

provided with a substantially constructed canopy, indicates that 

~he shuttle car was provided with a substantially constructed 

canopy o ~=r, support of this argument 9 the respondent cites MSHA 9 s 

policy manual under section 75o1725, which states that u'This 

section in no way affects enforcement of other mandatory safety 

standards and should only be used where such condition is not 

covered by any other regulationu. The respondent concludes that 

since the essence of the alleged violation is that the canopy was 

not substantial constructed, the inspector, according to the 

MSHA manual, should have cited section 75.1710 rather than the 

~ucatch a11uu section 75.1725(a). The respondent further concludes 

that the inspectoris explanation that section 75.1725(a) is the 

appropriate standard is contradictory and unsupportive of his 

position, and since he stated that section 75.1710 did not apply, 

this indicates that the canopy was substantially constructed. 

Finally, since the inspector indicated that section 75.1710 does 

not address maintenance, and that maintenance of the canopy was 

adequate at the time (Tr. 31), respondent concludes that the 

inspector was concerned that the canopy may be unsafe at a future 

time, hardly a basis for issuing a citation for the present 

condition. 

1189 
Findings and Conclusions 

Fact of Violation. Citation No. 3702139. 

The respondent is charged with a violation of mandatory 

safety standard 30 ·c.F.R. § 75.1725(a), which states as follows: 

Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or 

equipment in unsafe condition shall be removed from 

service immediately. 

In construing an identical mandatory safety standard 

applicable to surface coal mines (30 C.F.R. § 77.404(a)), the 

Commission in Peabody Coal Company, 1 FMSHRC 1494, 1495 (October 

1979), held that the regulation imposes two duties upon an 

operator~ (1) to maintain machinery and equipment in safe 

operating condition, and (2) to remove unsafe equipment from 

service. The Commission concluded that derogation of either duty 

constitutes a violation. 

In Alabama-By-Products Corporation, 4 FMSHRC 2128, 2129 

(December 1982), the Commission upheld a violation of 

section 75.1725(a), and stated as follows: 

[I]n deciding whether machinery or equipment is in safe 

or unsafe operating condition, we conclude that the 

alleged violative condition is appropriately measured 

against the standard of whether a reasonably prudent 

nerson famil with the factual circumstances 

sur=ounding the allegedly hazardous condition, 

uding any facts peculiar to the mining industry 

would recognize a hazard warranting corrective action 

the purview of the applicable regulation. 

Section 75,1710 authorizes the Secretary to require 

constructed canopies on shuttle cars in order to 

~he car operator from roof falls and from rib and face 

rolls" Section 75ol710~l requires shuttle cars to be equipped 

with ca constructed 11 canopies located and installed 

such a manner to protect the car operator from roof, facer and 

falls or rolls. Pursuant to section 75.1710-l(d), a canopy 

is considered to be "substantially constructed'' if a registered 

engineer certi that the canopy has the minimum structural 

capacity Vito support elastically: (1) A dead weight load of 

18, 000 pounds, or ( 2) 15 p. s. i. distributed uniformly over the 

plan view are of the structure, whichever is lesser". 

MSHA's policy manual interpretation of section 75.1725, 

cites examples of equipment defects which "could indicate that 

such machinery and equipment is not maintained ln saf~ operating 

1190 
condition", and it states that a violation of section 75.1725 

"would exist if such defects render the equipment or machinery 

unsafe to operate" (Emphasis added) . 

The parties are in agreement that canopies are required for 

shuttle cars operating in the respondent 1 s mine and that the 

canopy in question was initially certified as substantially 

constructed when it was installed on the shuttle car in question. 

MSHA's position is that sections 75.1710 and 75.1710-1 only 

address the mining conditions under which canopies may be 

required, and the initial configuration required of a canopy 

before it may be certified as "substantially constructed". MSHA 

believes that these regulations impose no obligation or 

requirement on a mine operator to maintain the canopy in a 

"substantially constructed" condition after it is initially 

certified and installed on a shuttle car. 

I take note of the fact that MSHA 1 s canopy safety standards 

do not include any requirements that canopies be maintained in a 

"substantially constructed" condition so as to continually meet 

the minimum structural criteria found in section 75.1710(d). In 

short, once a canopy is certified as capable of withstanding 

certain structural pressures to which it may be exposed in the 

event of a roof fal.l, there is no specific canopy standard to 

insure that a canopy which has been subjected to "wear and tear" 

in the actual mining environment has not been rendered less than 

"substantially constructed" after the passage of time. In the 

absence of such a canopy standard, an inspector necessarily must 

rely on a general vicatch all" subjective standard such as 

section 75.1725(a) u to determine whether or not an otherwise 

seemingly '

1 substant constructed 1

u canopy is nonetheless in ~uunsafe condition" its immediate removal from serviceo 

The inspector mus~ also on a instruction which 

contains no guidance as to how one may make and support a 

determination that a particular piece of equipment is unsafe 

solely because of the presence of a damaged part. 

The record in case that the inspector was 

rather unsure as to which regulatory standard to cite 

(Tr. 67-68) o On direct examination, he testi that he had 

violations of both section 75.1710 and section 75.1725(a), but 

opted to cite section 75ol725(a), because he wanted to take the 

shuttle car out of (Tr. 18). Although his inspection 

notes (Exhibit G-B) , reflect that the canopy 11was not being 

maintained safe 11 , he testified that he considered the maintenance 

of the canopy as "adequate at the time 0 , and that section 75.1710 

did not apply (Tr. 30-31). I find the inspector's belief that an 

adequately maintained canopy at the same time unsafe to be 

rather contradictory. 

The respondent's arguments that the inspector should have 

cited section 75.1710, rather than section 75.1725(a), and that 

1191 
his failure to cite section 75.1710, or to follow MSHA's manual 

instructions supports its contention that the canopy was 

substantially constructed and that the citation should be vacated 

on these grounds ARE REJECTED. In upholding a violation of 

section 75.1725(a), the Commission in Alabama By-Products 

Corporation, 4 FMSHRC 2128, 2132 (December 1982), held that 

MSHA's policy manual instructions are not officially promulgated 

rules binding upon the Commission and that the failure of the 

inspector to follow such instructions did not invalidate the 

citation. 

The respondent 0 s further suggestion that an inspector's 

concern that a canopy may be unsafe at some future time may not 

support a citation for its present condition is not persuasive 

and it is likewise REJECTED. In upholding a Commission Judge's 

decision affirming a violation of section 75.1725(a), the U.S. 

Tenth Circuit in Mid-Continent Coal and Colke Company v. FMSHRC 

and Secretary of Labor, September 24, 1981, 2 BNA MSHC 1450, 

observed that "It is clear that Congress intended the Mine Act to 

both remedy existing dangerous conditions and prevent dangerous 

situations from developing". See also: Alabama By-Products 

Corporation, 4 FMSHRC 2128, 2131 holding that "· .•• upon 

observing the defective equipment in issue, it was not necessary 

for the inspector to wait until the feared hazard fully 

materialized before directing remedial action". 

The respondent in this case is charged with an alleged 

violation of section 75.1725(a), and the fact that the inspector 

opted to cite that regulatory standard, rather than another one 

irrelevanto The selection of an appropriate standard to cite 

the o~ the inspector and he assumes the 

and uoss tha~ he may not prevail when called upon to 

an at tr In the case at hand, the 

ssue whether or- not the condition of the canopy, as observed 

by the inspector 1 rendered it unsafe for immediate and continued 

use within the meaning of section 75ol725(a), and whether there 

of probative evidence to support the 

is bel f that a ted canopy th two broken welds was 

unsafe o The '.'.)urden of proof lies with MSHA and "the 

fact of unsafeness, rather than the reason for the unsafeness, is 

relevant 11 , v. Kenny Richardson, 3 FMSHRC 8, 

l~ (January 1981) 1 by the Sixth Circuit at 689 F.2d 632 

(1982) 1 o denied 1 Noo 82-1433, May 16, 1983" A lack of 

reliable and substantial evidence of an actual equipment defect 

affecting safety justifies the dismissal of a citation, B.K.S. 

Mining Co., Inc., 2 FMSHRC 998 (April 1980), final Commission 

order June 9, 1980. Both of these cases concerned alleged 

violations of 30 C.F.R. § 77.404(a), a surface mining standard 

containing language identical to section 75.1725(a). 

In this case, the inspector primarily relied on two factors 

in concluding that the canopy was unsafe, namely, the tilt in the 

1192 
canopy and the two broken welds. MSHA maintains that the ability 

of the canopy to withstand the amount of pressure which it is 

certified to withstand in the event of a roof fall is seriously 

compromised by its leaning position. However, on the evidence 

presented in this case, I cannot conclude that the tilt or lean 

observed by the inspector proves that the canopy was in an unsafe 

condition requiring its immediate removal from service. The 

inspector did not speak with anyone who may have operated the 

shuttle car while coal was being produced, nor did he ascertain 

when the car was last inspected or how long the condition in 

question may have existed. Further, although the inspector 

testified that he had taken a college class in "strengths and 

materials" and a physics class, that he "knew the equipment", and 

that a canopy is designed to hold a vertical load rather than a 

horizontal load (Tr. 37), there is no evidence that he had any 

particular engineering expertise. 

The inspector candidly ad,mitted that he had no idea whether 

the canopy would withS,tand the weight that it was certified to 

hold in the event of a roof fall and that he was not qualified to 

determine whether or not the canopy could "withstand the 

1800 pounds or not" (Tr. 26, 32-33). (I take note that 

section 75.1710-l(d) requires a certified canopy weight load 

capacity of 18,000 pounds). Further, the inspector acknowledged 

that he took no measurements, and did not know the degree of lean 

of the canopy (Tr. 64). He also agreed that a canopy does have 

"some inherent play" and slight tilt, and that in such a 

situation, he would not cite it unless he "feels that it's been 

damaged by being struck or that there's a problem" (Tr. 65). He 

confirmed that h~ did not grab the support posts where the welds 

were located and attempt to shake them, and he indicated that 

even he had done so 1 the canopy do have some u

1 play11 in 

them Trc 45)o He could not say whether or not the support posts 

would have moved freely if he attempted to shake them with his 

hands, and he found no need to make this 11 hand test" (Tr. 46). 

Contrary to MSHA 1 s assertions that the canopy legs were 

bentv and that two of the welds held the inner legs upright 

were completely broken the citation as written, fails to 

describe any bent legs or standards, nor does it state that the 

broken welds were located where the legs or standards attached 

directly to the canopy or the shuttle car. The citation states 

that the 2 broken welds were located where the standards were 

previously attached to the shuttle car. Although the inspector's 

notes include a notation that "the standards were bent forward", 

the diagram of the canopy made by the inspector does not depict 

any bent legs, and when he was asked to locate the bent legs on 

the diagram, he could not do so (Tr. 38). When asked whether or 

not the legs were bent, the inspector replied that "the legs were 

bent"; "the legs were leaning, the canopy itself was leaning 

forward"; "something had to be bent, for the canopy to be tilting 

forward" (Tr. 38). The inspector initially believed that the 

1193 
canopy legs and standards were one and the same (Tr. 14), whereas 

the more credible and unrebutted testimony of Mr. Caldwell 

reflects that the canopy legs actually fit into the standards 

which were welded onto the shuttle car frame (Tr. 55-57). 

Although it is true that Mr. Caldwell was not with the 

inspector during his inspection because he was not at the mine, 

and he did not view the canopy when it was cited or shortly 

thereafter when it was taken out of service, Mr. Caldwell 

nonetheless based his testimony on his knowledge of the shuttle 

cars and canopies, his observation of similar canopies before and 

after the citation, and the inspector's drawing of the cited 

canopy in question (Tr. 56-57). He also testified that he had 

previously seen the same canopy many times, and as late as "a 

couple of days" prior to the inspection in question (Tr. 60). It 

was Mr. Caldwell's understanding that the broken welds were on a 

piece of bracing material approximately 18 inches from the base 

of the standard, but that the,J::>ase qf the canopy legs were 

substantially welded (Tr. 54-55). I taken note of the fact that 

Mr. Caldwell has been employed by the respondent for 17 years, 

and his mining experience includes work as a safety inspector, 

section foreman, and the operation of shuttle cars, roof bolters, 

and continuous mining machines, and I find him to be a credible 

witness. 

The inspector testified that the broken welds he observed 

were not at the point where the legs are welded directly to the 

canopy top and 3erve to support it, or at the base of the 

standards (Tr. 16). This testimony lends some credence to 

Mr. Caldwell 0 s belief that the two broken welds may have been at 

one of the brace locations; rather than on the legs themselves. 

The inspector also testified that he found nothing wrong with any 

of the welds at the roof of the canopy where the legs are 

attached to support the canopy, or at the base of the supporting 

standards which were securely welded to the frame of the shuttle 

car and which served to support or house the canopy legs 

(Tro 17, 43). He believed that the canopy would deflect smaller 

pieces or rock that might cause injuries (Tr. 17, 43). 

MSHA 1 s assertion that the cited canopy 11 had substantial 

extensive damageu• is not supported by the evidence. The fact 

that the canopy top showed evidence that it was probably scraping 

the mine roof, standing alone, does not support a finding of 

uuextensive damage 1u, and the inspector acknowledged that it was 

not unusual to see evidence of roof scrapes on a canopy top 

(Tr. 48-49). At most, the evidence reflects the presence of two 

broken weld spots at a location up from the base of the two front 

canopy legs which were located inside of the four standards which 

were securely welded to the shuttle car frame. Under these 

circumstances, and after careful review and consideration of all 

of the testimony and evidence presented in this case, I cannot 

conclude that MSHA has proved that the cited canopy was unsafe, 

1194 
or that the condition of the canopy, as observed by the 

inspector, rendered it unsafe and requiring its immediate removal 

from service. In short, I cannot conclude that MSHA's evidence 

that the canopy was unsafe, a conclusion which in the final 

analysis is based on the inspector's observation of a forward 

tilt in a canopy which has inherent "play"; and two broken weld 

spots up the side of two of the canopy legs which are otherwise 

substantially welded to the base of the canopy, and which are 

inside support standards which are securely welded to the frame 

of the shuttle car, would lead a reasonably prudent person 

familiar with those circumstances to conclude that the canopy was 

unsafe and should have been immediately removed from service. In 

the absence of such proof, I conclude and find that a violation 

of section 75.1725(a), has not been established and that the 

contested citation should be vacated. 

As noted earlier, the parties agreed to settle the three 

remaining contested citations in this proceeding, and the 

petitioner filed a motion pursuant to Commission Rule 30, 

29 C.F.R. § 2700.30, seeking approval of the proposed settlement. 

The citations, initial assessments, and the proposed settlement 

amounts are as follows: 

3702086 

3702038 

3702134 

5/13/91 

5/16/91 

5/16/91 

30 C.F.R. 

Section 

77.1102 

77.1102 

75.220(a) (1) 

Assessment 

$227 

$227 

$350 

Settlement 

$168 

$50 

$227 

In support of the proposed settlement dispositions of the 

three citations in question, the petitioner has submitted 

ining to the s statutory l penalty 

section ~~O( of the Act. The petitioner also 

submitted a ful discuss and sclosure regarding the facts 

and circumstances surrounding the issuance of the citations, and 

a reasonable justification for the reduction of the original 

proposed c penalty assessments. After careful review and 

cons of the arguments support of the motion to 

approve the proposed settlement~ conclude and that the 

proposed settlement is reasonable and in the publ interest. 

Accordingly, pursuant to 29 C.F.R. § 2700.30, the motion IS 

GRANTED,,and the settlement IS APPROVED. 

ORDER 

IT IS ORDERED THAT: 

l} The contested section 104(a) "S&S" Citation No. 3702139, 

May 24, 1991, citing an alleged violation of mandatory 

safety standard 30 C.F.R. § 75.1725(a), IS VACATED, and the 

petitioner's proposed civil penalty assessment is DENIED AND 

DISMISSED. 

1 5 
2) The respondent shall pay civil penalty assessments in 

the settlement amounts shown above in satisfaction of the 

violations in question. Payment is to be made to MSHA 

within thirty (30) days of this decision and order, and upon 

receipt of payment, this proceeding is dismissed. 

_#/ A~· ~- Koutras 

Administrative Law Judge 

Distribution: 

Theresa c. Timlin, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480-Gateway Building, 3535 Market st., 

Philadelphia, PA 19104 (Certified· Mail) 

Joseph Ao Yuhas, Esq., Shannopin Mining Company, RD #1, Box 40, 

Barnesboro, PA 15714 (Certified Mail) 

/ml 

1196 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

THE FEDERAL BUILDING 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266 I FTS 564-5266 

JUL 2 4 1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MID-CONTINENT RESOURCESv 

INCORPORATED, 

Respondent 

. . 

. . 

. 

" 

. 

0 

. . 

. . 

Docket No. WEST 91-580 

A.C. No. 05-00301-03782 

Dutch Creek Mine 

DECISION 

Appearances: Margaret A. Miller, Esq., 'Iambra Leonard, Esq. , 

Office of the Solicitor, U.S. Department of Labor, 

Denverv Colorado, 

for Petitioner~ 

Edward Mulhall, Jr., DELANEY & BALCOMB, P.C., 

Glenwood Springs, Colorado, 

for Respondent. 

Bef oreg Judge Morris 

This is c. :'.l penalty proceeding init ted by Petitioner 

a inst. Respondent pursuant to e Federal Mine Safety and Health 

Act of 1977v 30 u.s.c. § 801 et~ The civil penalty sought 

here is for the viola ti on of a mandatory regulation promulgated 

pursuant to Acta 

A hearing 

Sp:cingsp 

zeached an ami 

iled a written 

Respondent 

_:r:. this case :related cases was held in Glenu on February 26v 1992. '!he parties 

e settlement on the record and subse:;Juently 

Joint Motion to Approve Settlemento 

rther filed a suggestion of bankruptcyo 

The Citationu the original assessment, and the proposed disposition are as follows: 

Citation Noo Proposed Penalty 

3411282 $950.00 

1197 

Amended 

Proposed Penalty 

$570.00 
In support of their motion, the parties sub:nitted information relating to the statutory criteria for assessing civil penalties as contained in 30 u.s.c. § 820(i). 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

Accordingly, I enter the following: 

ORDER 

1. Citation No. 3411282 and the amended proposed penalty 

therefor are AFFIRMED. 

2. Respondent filed a case under Chapter 11 of the Bankruptcy Code and is operating its bankruptcy estate as a debtorin-possession. Accordingly, upon approval of the United States 

Bankruptcy Court in Case No. 91-11658 PAC, it is ORDERED that 

a civil penalty will be assessed against the Respondent in the 

amount of $570.00 and Petitioner is authorized to assert such 

assessment as a claim in Respondent's Bankruptcy Case. 

Law Judge 

stributiong 

Margaret .Ao Miller v Esq o v Off ice of the Solicitor 0 U oS o Department Laborv 1585 Federal Office Buildingv 1961 Stout Street, 

Denver 0 CO 80294 (Certified Mail) 

EdwardMulhallv Jr. 11 Esq., DELANEY & BALCOMB, P.C., P.O. Drawer 

790, Glenwood Springs, CO 81602 (Certified Mail) 

ek 

1198 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 3 0 ]992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Z C A MINES, INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 92-40-M 

A. C. No. 30-01688-05506 

Hyatt Mine 

DECISION 

Appearances: William G. Staton, Esq., Office of the Solicitor, 

U.S. Department of Labor, New York, New York 

for Petitioner; 

Sanders D. Heller, Esq., Gouverneur, New York, 

for Respondent. 

Before: Judge Weisberger 

This case is before me based on a Proposal for Assessment of 

Civil Penalty filed by the Secretary (Petitioner). Subsequent to 

a telephone conference call between the undersigned and counsel 

for both parties, a hearing in this matter was scheduled for 

June 30, 1992, in Watertown, New York. At the hearing, William 

L. Kobel, Jr., a Mine Safety and Health Administration (MSHA) 

Inspector, testified for Petitioner, and David C. Roberts, 

Douglas L. Beachard and Ronald P. Mashaw testified for the 

Operator (Respondent). The parties waived their right to submit 

written briefs and in lieu thereof presented oral argument 

subsequent to the hearing. 

Findinqs of Fact and Discussion 

On July 30, 1991, William L. Kobel, Jr., in inspecting 

Respondent's Hyatt mine, observed Ronald P. Mashaw operating a 

front-end loader. Although the loader was equipped with a 

functioning seat belt, Mashaw was not wearing it while operating 

the loader. Mashaw was in the process of operating the loader 

by picking up a load of coal from an ore pile, reversing, and 

then going forward to dump the load of ore in a truck. In 

continuing this operation, the loader would then be backed up and 

returned again to the ore pile where the process would be 

repeated. The distances traversed by the loader are depicted on 

Respondent's Exhibit No. i. I find the depictions of these 

distances to be accurate, inasmuch as they are based upon actual 

1199 
measurements taken by Respondent's witnesses David c. Roberts and 

Douglas L. Beachard. I find these measurements more credible 

than the estimates testified to by Kobel. 

Kobel issued a citation alleging a violation of 30 C.F.R. § 

57.14130. Respondent does not contest the fact of the violation, 

but seeks to challenge the finding made by Kobel that the 

violation was significant and substantial. 

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), The 

Commission set forth the elements of a "significant and 

substantial" violation 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 reasonable serious 

nature. (6 FMSHRC, supra, at 3-4,) 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129 (August 1985)v the Commission stated further as follows: 

We have explained further that the third element of the 

Mathies formula 01 requires that the Secretary establish 

a reasonable l ihood that the hazard contributed to 

l an event 

U.S. Steel Minina Co.; 

(August. 1984). 

which there is an injury". 

FMSHRC 1834, 1836. 

In essence, Kobel testified that he concluded that the 

violation was significant and substantial, inasmuch as there was 

reasonable l ihood of an injury resulting a loss of work, 

He indicated that, specifically, his conclusion in this regard 

was based on the fact that the main access road was nearby, and 

was used by at least two trucks travelling more than 10 miles an 

hour. He also indicated that trucks were going to the far side 

of the waste le, and travelling 4 to 5 miles an hour. 

According to Kobel, should the loader go to the garage to obtain 

fuel as part of its normal operation it would have to cross a 

line of traffic. In essence, he indicated that due to the 

presence of this traffic there existed the possibility of a 

collision. He indicated that should the loader hit another 

object, it is "quite likely" that the operator, not wearing a 

seat belt, would be "tossed into one of the structures, or his 

knee would strike underneath the steering wheel." (Tr. 18) 

1200 
He further indicated that the roadway on which the loader 

was operating was full of loose zinc ore with the largest 

material approximately 8 inches x 10 inches x 3 inches. He 

stated that this spillage adds to the chance that a tire will be 

blown. He indicated that should this occur when the bucket of 

the loader is raised as part of the normal operation, the loader 

could sway, or tip overo Should this occur an injury could occur 

to the operator as a result by his being tossed around, or 

ejected should the door of the loader be open. 

I find the testimony of Kobel insufficient to establish a 

reasonable likelihood thatu considering all the circumstances 

herein, the hazard contributed to would have resulted in an event 

in which there is an injury (See U.S. Steel Mining Company, 6 

FMSHRC supra). Any other vehicular traffic in the area was not 

in the path or line of travel of the loader, which operated in a 

most circumscribed area travelling an extremely short distance as 

depicted in Respondent 1 s Exhibit No •.. 2. The terrain was level, 

not elevated, and there were no berms in the areas. The surface 

itself consisted of crushed rock, packed fairly hard. The speed 

at which the loader was operating was estimated Kobel to be a 

little faster then a fast walk. 

On cross-examination Kobel indicated that a lot of the loose 

zinc ore spillage was crushed. Further, although Kobel indicated 

that blowouts do happen, he indicated that the tires were 

reasonably well maintained. Also, Roberts, who has worked for 

Respondent 20 years, indicated that in his experience at 

Respondent 9 s operation, there has not been any tire failure from 

the use of the roadway in question. Mashawu who also has worked 

for Respondent 20 years, indicated that, in driving a front end 

loader, he has never 1mown uuof a tire to blow out 00 o (Tr o 97) 

Beachard who has worked for Respondent 22 years, indicated that 

he never heard of a front end loader 00 blowing out a tire 00 at 

Respondent 0 s premises. (Tr.106). Further, Roberts and Mashaw 

operated the loader in question, and described it as being 

stable. In this connection Kobel indicated that the loader did 

not appear unstable when the bucket was raised, or when it 

dumped. Also it stopped fairly smoothlyo 

For all these reasons, I conclude that the third element set 

forth in Mathies supra.~ has not been met. Therefore I conclude 

that it has not been established that the violation herein was 

significant and substantial. 

I find that there was only a small degree of negligence on 

the part of the Respondent herein, inasmuch as the credible 

testimony establishes that Respondent has a good safety record, 

and was diligent in instructing employees to use a seat belt. I 

find that a penalty of $20 is appropriate for the violation 

herein. 

1201 
ORDER 

It is ORDERED that Citation No. 3592398 be amended to 

reflect the fact that violation cited was not significant and 

substantial. It is further ORDERED that Respondent pay a civil 

penalty of $20 within 30 days of~ de~i~ 

fet~ weYsberger 

Administrative Law Judge 

Distribution: 

William G. Staton, Esq., U.S. Department of Labor, Office of the 

Solicitoru 201 Varick Street, New York, NY 10014 (Certified 

Mail) 

Sanders D. Heller, Esq., Z c A Mines Inc., 23 Main Street, P.O. 

Box 128, Gouverneur, NY 13642-0128 (Certified Mail) 

nb 

1202 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 9 1992 

IN RE: CONTESTS OF RESPIRABLE Master Docket No. 91-1 

DUST SAMPLE ALTERATION 

CITATIONS 

ORDER GRANTING IN PART AND DENYING IN PART 

MOTION TO COMPEL TESTIMONY OF ROBERT THAXTON 

on October 7, 1991, Contestants Kentucky Carbon, et al. 

filed a motion for an order compelling Robert Thaxton to testify 

regarding certain matters at~his reconvened deposition. 

Thaxton's deposition was taken in Washington, D.C. between 

July 24 and July 29, 1991. On October 18, 1991, Contestants 

Great Western, et al. filed a motion to compel Thaxton's 

testimony. On October 28, 1991, the Secretary of Labor 

(Secretary) filed a Memorandum in opposition to Contestantsv 

motions. on October 28, 1991, the Office of Inspector General, 

U.S. Department of Labor (OIG) filed a motion for leave to file a 

special appearance to oppose the motion to compel. on 

October 29, 1991, I issued an order granting the OIG leave to 

enter a special appearance and I received its memorandum in 

opposition to the motion to compel. On November 12, 1991, 

Contestants Great Western et al, filed a reply to the OIG's 

memorandum" On November 20 1991, I issued an order staying 

action on the motion to compel pending Commission action on 

interlocutory review of my order of October 7v 1991. On March 

17, 1992 1 the OIG filed a motion to withdraw its motion to oppose 

Contestants' motions to compel on the ground that its employee 

integrity investigation involving MSHA employees has been closed. 

The OIGgs motion is GRANTED. 

On June 29, 1992, the Commission issued its decision on 

interlocutory review of my discovery orders of 

September 13, 1991, September 27, 1991, and October 7, 1991. 

Therefore my stay order is VACATED. 

During the 4-day deposition of Robert Thaxton, counsel for 

the Secretary interposed 54 objections to questions and 

instructed Thaxton not to answer. The motion to compel in 

section VI, entitled Specific Instructions to Withhold Testimony, 

lists 19 (A through S) questions to which Contestants seek to 

compel answers. The objections to two of them (L and P) have 

been withdrawn by the Secretary and the OIG respectively. Of the 

17 remaining questions, 13 are objected to because disclosure is 

prohibited by Rule 6(e) of the Federal Rules of Criminal 

Procedure, or the information is protected by the investigative 

1203 
privilege; for some of the 13 and for the remaining four, the 

Secretary claims the attorney-client privilege, the deliberative 

process privilege, or the attorney work product doctrine. 

I. Rule 6(e)/Investigative Privilege 

Rule 6(e) (2) of the Federal Rules of Criminal Procedure 

provides in part that "an attorney for the government, or any 

person to whom disclosure is made under paragraph (3) (A) (ii) 

["such government personnel ... as are deemed necessary by an 

attorney for the government to assist .•• in the performance of 

such attorney's duty to enforce federal criminal law"] shall not 

disclose matters occurring before the grand jury, except as 

otherwise provided for in these rules •.•. A knowing violation of 

Rule 6 may be punished as a contempt of court." The Secretary 

refers to Robert Thaxton as 11 an agent of the grand jury. 11 

Thaxton, in an affidavit attached to the Secretary's opposition, 

states that he has been an agent of grand juries since 

approximately March 1989, and that he has heard grand jury 

testimony, prepared analyses and data for presentation to the 

grand juries, and has learned the identity of witnesses before 

the grand juries. It is clear that he is a Government employee 

deemed necessary by a Government attorney to assist the attorney 

in enforcing federal criminal law. Therefore he is prohibited 

from disclosing "matters occurring before the grand jury. 11 Such 

matters include transcripts of witness testimony, memoranda 

summarizing witness testimony or outlining future witness 

testimony, and information which would reveal what is expected to 

occur before the grand jury in the future. 8 Moore's Federal 

Practice 6.05[6] (2d ed. 1992) (citations omitted). The scope of 

the mandated secrecy is broader than the evidence presented to 

<'.:he grand jury and encompasses lithe disclosure of information 

which would reveal 'the identities of witnesses or jurors, the 

substance of testimony; the strategy or direction of the 

investigation, the deliberations or questions of the jurors, and 

the like. ' 11 Fund for Constitutional Government v. National 

Archives and Records Service: 656 F.2d 856, 869 (D.C. cir. 1981) 

citing SEC v. Dresser Industries, Inc., 628 F.2d at 1382). 

Howevere the mere fact that material has been presented to the 

grand jury does not automatically exempt the material. "[T]he 

touchstone is whether disclosure would \tend to reveal some 

secret aspect of the grand jury's investigation .... in Senate of 

Puerto Rico v. U.S. Dept. of Justice, 823 F.2d 574, 582 (D.C. 

Cir. 1987). See Nervi, F.R.Cr.P. 6(e) and the Disclosure of 

Documents Reviewed by a Grand Jury 57 U. Chi. L. Rev. 221 (1990). 

There is a qualified common law privilege against disclosure 

of information in law-enforcement investigatory files. The 

privilege is qualified in that once it is established, the court 

must balance the public interest in nondisclosure against the 

need of the litigant for access to the privileged information. 

Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336 

1204 
(D.C. cir. 1984); In re Dept. of Investigation of City of New 

York, 856 F.2d 481 (2d Cir. 1988). 

As stated above, the motion to compel seeks to compel 

answers in 19 specific instances where Thaxton was instructed to 

withhold testimony. This order adopts the Contestants' listing 

(A through S) of the contested instructions to withhold. 

A. The question {Tr. 93-94) asked whether the investigation 

that resulted in the plea by Peabody Coal Company "is ••. an 

ongoing investigation?" Whether a criminal investigation is 

"ongoing" is protected by the investigatory privilege. Since the 

question relates to a company other than Contestants, they have 

not shown a need for the privileged information. The objection 

is sustained and the motion to compel is denied. 

B and C. The questions {Tr. 98-103) first asked why the 

witness is maintaining the 6000 filters on which no AWC 

determinations have been made.. Thaxton replied that he could not 

answer because of the ongoing investigative work. He was then 

asked in what districts the U.S. Attorneys worked who instructed 

him not to answer. The Secretary objected on the grounds of 

investigative privilege and the prohibition of Rule 6(e). 

Thaxton and the Secretary seem to be asserting that the reason 

for maintaining the 6000 non-cited filters is related to the 

criminal investigation. If so, it is privileged and Contestants 

have not shown a need for the information. In his affidavit 

Thaxton stated that the 6000 filters have been maintained for 

criminal investigative purposes. I accept this representation. 

If Contestants wish to compel further disclosure, their remedy is 

in the District Court where the grand jury sat. Rule 

e) (3) (C) i) and 6(e) (3) (D), F.R.Cr.P. The identification of 

stricts which the U.S. Attorneys are located is early 

ileged and probably protected by Rule 6(e). The objections 

are sustained and the motion to compel is denied. 

Do The questions had to do with Thaxton 1 s direct knowledge 

of the use of a dust pump by mine operators to create reverse air 

flow filters the cited dust samples. (Tr. 174-176). The 

witness replied that he was advised by the U.S. Attorney's office 

that he could not answer. The implied representation is that 

Thaxton s knowledge of the use of a dust pump by mine operators, 

if he has such knowledge, comes from matters occurring before a 

grand jury. Accepting his representation, I conclude that he is 

precluded by Rule 6(e) from answering the question. The motion 

to compel denied. 

F. The question was whether the witness shared information 

obtained during the course of his AWC investigation for MSHA with 

the grand jury or the U.S. Attorney's office. (Tr. 224-227). 

The Secretary objected on the basis of the 6(e) prohibition, and 

because of the investigatory privilege. Clearly whether Thaxton 

1205 
11 shared11 information with the grand jury is subject to the 6(e) 

prohibition. Thaxton's disclosure to the U.S. Attorney's office 

is protected by the investigatory privilege and Contestants have 

shown no need for disclosure of such information. The motion to 

compel is denied. 

G. The questions were how the witness knew whether any of 

the methods he described were used to create AWCs and whether he 

has any information "from witnesses" who have observed these 

methods used to create the appearance on the dust samples "that 

have been indicted." (Tr. 255-257). It is the Secretary's 

position that the information called for in the first question 

"could only have been obtained as an agent of a grand jury." I 

accept this representation, and therefore conclude that the 

witness is precluded from answering by Rule 6(e). The second 

question is not clear but seems to be seeking the same 

information. The motion to compel is denied. 

I. The question was whether either of the studies and 

reports from West Virginia University or the Pittsburgh Health 

Technology Center were "prepared for the criminal investigation 

regarding Peabody Coal Company." (Tr. 340). The Secretary 

objected on the basis of the investigatory privilege. The 

question clearly seeks information concerning a criminal 

investigation. As such, the information is privileged. 

Contestants have shown no need for the information which would 

outweigh the Government's interest in non-disclosure. The motion 

to compel is denied. 

J. The question was whether the reports referred to above 

were 10made exhibits for the grand jury. vu (Tr. 341) . The 

question clearly seeks to learn matters occurring before the 

jury. Disclosure prohibited by Rule 6(e). The motion ~o compel _s den 

Ko The question was whether a coal mine inspector who 

provided information concerning equipment which could be found on 

mine property which could cause air movement was 11 a coal mine 

inspector who had appeared front of a grand jury. 1u (Tro 501-

504) Againf this information c comes under the 

prohibition of Rule 6(e). The motion to compel is denied. 

N. The question was what information MSHA was 11 gathering11 

which prevented from notifying mine operators "of the validity 

(invalidity?) of the samples. 11 (Tr. 606). The Secretary 

asserts the investigative privilege. The privilege applies, but 

I conclude that it is outweighed by the Contestants' need for the 

information. The Contestants state that "the information 

gathered regarding the cited samples is ~he issue in this 

litigation." The motion to compel is granted. Thaxton will be 

required to answer the question in his rescheduled deposition. 

1206 
Q. The· question was which U.S. Attorney or Assistant U.S. 

Attorney requested Thaxton to perform certain work. (Tr. 572). 

This information is protected by the investigative privilege and 

contestants have not shown any overriding need for it. The 

motion to compel is denied. 

R. The questions were whether Thaxton "shared with the 

grand jury 11 information developed at the request of the U.S. 

Attorney's offices relating to AWCs, and whether he notified 

Peabody Coal prior to March 19, 1990, that the filters being 

submitted by them were being reviewed for AWC determination. 

(Tr. 712, 715). The Secretary objected to both questions on the 

ground that disclosure of the information was prohibited by Rule 

6(e). The first question is obviously within the prohibition of 

6(e). The motion to compel denied. The second question is 

unrelated to the grand jury and not covered by 6(e). The motion 

to compel is granted, and Thaxton will be required to answer the 

question in the rescheduled ~eposition. 

s. The question was why an Assistant U.S. Attorney needed 

to understand the characteristics of AWCs in dust samples. 

(Tr. 563-564). The Secretary asserted the investigative 

privilege and the deliberative process privilege. I sustain the 

objection related to the former and deny her claim of 

deliberative process privilege. The information sought was part 

of the criminal investigation. Contestants have not shown a need 

for the information which would outweigh the Government's 

interest in non-disclosure. The motion to compel is denied. 

II. Attorney-Client Privilege/Work Product Doctrine 

The attorney-client privilege protects from discovery 

confidential communications from client to attorney. Coastal 

v. Department of Energy, 617 F.2d 854 (D.C. Cir. 

1980) . The attorney work product doctrine protects from 

disclosure information gathered by or for an attorney in 

anticipation of litigation. Hickman v. , 329 U.S. 495 

(1947) Rule 26(b) (3 F.R.C .P. party seeking disclosure of 

factual materials within a protected document or protected 

information may obtain them upon a showing of substantial need, 

but is not entitled to disclosure of "mental impressions, 

conclusions, opinions, or legal theories of an attorney. 11 Rule 

26(b) (3). 

E. The question was whether the witness intends to do any 

additional testing with any of the 11,000 filters (viewed by 

Thaxton for "final determination on AWC phenomenon"). (Tr. 209-

211). The Secretary objected on the grounds that the information 

sought was protected by the attorney-client privilege and the 

attorney work product doctrine. Since the question has no 

reference to a communication from client to attorney, it is 

clearly not covered by the attorney-client privilege. Thaxton's 

1207 
intent to do further testing is not obviously related to 

anticipated litigation or to an attorney 1 s work file. The 

objections are overruled, and Thaxton will be required to answer 

the question during the rescheduled deposition. 

H. The question was what 11 things 11 (referring apparently to 

tests for AWC) have been referred for additional testing. 

(Tr. 301-303). The Secretary objected because of the work 

product doctrine, and argues that an answer would necessarily 

reveal the mental impressions, legal theories, and trial 

preparation of the Secretary 1 s attorneys. I disagree. The 

witness may answer the question without in any way referring to 

or revealing such impressions and theories. The objection is 

overruled, and Thaxton will be required to answer the question 

during the rescheduled deposition. 

III. Deliberative Process Privilege 

The deliberative process privilege protects deliberative 

communications between subordinates and supervisors within the 

government preceding the adoption and promulgation of an agency 

policy. Jordan v. U.S. Dept. of Justice, 591 F.2d 753 (D.C. Cir. 

1978). It does not include purely factual material. Schwartz v. 

Internal Revenue Service, 511 F.2d 1303 (D.C. Cir. 1975). 

M. The question was what was discussed at meetings with 

attorneys from the Solicitor's office and the U.S. Attorney's 

office concerning the rationale for not issuing citations in 

instances where Thaxton found violations. (Tr. 535-538). The 

Secretary objected on the ground that the information was 

protected by the deliberative process privilegeo The question 

seeks information of meetings anc'. concerning agency 

- conclude that because s:F ::he breadth of the question; 

t necessarily seeks to learn of deliberations concerning agency 

policy. Contestants have not shown need for this information 

which would outweigh the Government's interest in non-disclosure. 

The motion to compel is deniedo 

Ca The question was in ~vha-t casesvq did Thaxton give 

information to Ed Hugler concerning the different classification 

of AWCso (Tr, 565). The Secretary objected on the basis of 

deliberative process privilege. However, the question appears to 

ask for factual information andt -;:c the extent it does, the 

information is not privileged, The objection is overruled and 

Thaxton will be required to answer the question during the 

rescheduled deposition. 

1208 
ORDER 

Accordingly, the motion to compel is granted in part and 

denied in part. The parties are directed to reschedule Robert 

Thaxton's deposition and he is directed to answer the questions 

in accordance with the above opinion. 

' / ;;;./ j --, k /j /;,,'.tu' -S ;f /,'j1>z)(j c- t; '!cf~:_ 

/ James ;. Broderick 

·-' Administrative Law Judge 

Distribution: 

Douglas N. White, Esq., Page H. Jackson, Esq., Office of the 

Solicitor, U. s. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Laura E. Beverage, Esq., David J. Hardy, Esq., Jackson & Kelly, 

P. O. Box 553, Charleston, WV 25322 (Certified Mail) 

Lynda L. Homerding, Esq., Williams & Connolly, 839 17th Street, 

N.W., Washington, D.C. 20006 (Certified Mail} 

All Others Regular Mail 

/fas 

1209 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 17 1992 

IN RE: CONTESTS OF RESPIRABLE 

DUST SAMPLE ALTERATION 

CITATIONS 

Master Docket No. 91-1 

ORDER GRANTING IN PART AND DENYING IN PART 

CONTESTANTS' MOTION TO COMPEL PRODUCTION OF 

EXCISED PORTIONS OF CERTAIN DOCUMENTS AND 

DIRECTING THE SECRETARY TO SUBMIT CERTAIN 

DOCUMENTS FOR AN IN CAMERA INSPECTION 

on March 2, 1992, Contestants Kentucky Carbon, et al. filed 

a motion for an order to compel the Secretary to produce the full 

text of certain documents of Jerry L. Spicer, Ronald Schell, 

Paul s. Parobeck, Lawrence M. Beeman, Edward Hugler, and 

William J. Tattersall which Contestants sought in a request for 

production of documents. On March 16, 1992, the Secretary filed 

a memorandum in opposition to the motion. on March 26, 1992, I 

issued an order staying action on the motion pending Commission 

action on interlocutory review of my orders of September 13, 

September 27, and October 7, 1991. 

On June 29 1992, the Commission issued its decision on 

of those orders. Therefore, the stay order of March 26, 

1992, VACATED, 

The Discovery Plan, initially adopted on June 28, 1991, 

provided that the Secretary would create a document repository 

containing copies of all discoverable non-privileged documents in 

the Secretary~s control relating to altered dust filter media 

and would compile a list of documents deemed by the Secretary 

"not to be discoverable or . . . otherwise pri vilegedn (II. A. 1, 

3). The documents involved in this motion were not included in 

the repository, but were produced in response to Contestants' 

request for production of December 4, 1991. The Secretary 

responded in mid-January 1992, and the instant motion was filed 

March 2, 1992. In view of these circumstances, I reject the 

Secretary's argument that the motion should be denied as untimely 

f ed and not in accordance with the Discovery Plan. 

1210 
I. 

Copies of the documents involved in the motion are attached 

as Exhibits A through F. Exhibit A contains the notes of Jerry 

Spicer; B the notes of Ronald Schell; C the notes of Paul 

Parobeck; D the notes and calendar entries of Lawrence Beeman; E 

the calendar entries of Edward Hugler; F documents (actually a 

single document} from the files of Assistant Secretary 

Tattersall. 

Where the documents contain blank areas or blacked-out or 

whited-out words or phrases, with no notation of a claim of 

privilege, counsel for the Secretary informed me and counsel for 

Contestants that these contain entries unrelated to the present 

litigation. I accept this representation and on this motion will 

concern myself only with the excised portions of documents for 

which a specific claim of privilege has been asserted. 

With respect to the assertions of privilege, in instances 

where the Solicitor provides a factual description of the excised 

portion of the document, I will rule on the privilege claim, even 

though it is not supported by an affidavit or other formal claim 

of privilege. Where the assertion is merely conclusory, I will 

order the Secretary to submit the document for in camera 

inspection. The documents I am here concerned with are calendar 

entries and scattered short notes of six MSHA officials and 

employees. For such documents, it is unnecessary and 

inappropriate to require a "Vaughan index." See Commission 

decision, In Re Contests of Respirable Dust Sample Alteration 

Citations, 14 FMSHRC (June 29, 1992), slip op. at 20. 

II. Spicer Notes 

Spicer's notes contain six pages for only one of which (the 

fourth page entitled 3/4/91 Coal Staff Mtg) the Solicitor claims 

privilege. The Secretary states that the excised portion of the 

document contains a notation about the timing and progress of 

criminal investigation. She asserts the investigative privilege 

and the work product doctrine. The notation is sufficiently 

factual for me to uphold the claim of investigative privilege. 

Contestants have not shown an overriding need for the document. 

The motion to compel production is denied. 

III. Schell Notes 

Two pages of calendar notes made in February and March 1991 

are included. The only excision for which privilege is asserted 

is on March 4. The work product doctrine is asserted and the 

excised portion of the document is described as follows: 11 eased information would reveal identity of scientific expert 

being consulted by attorneys in this litigation." I am not able 

to rule on the claim of privilege without more factual 

1211 
information. The Secretary will be required to produce the 

document for in camera inspection. 

IV. Parobeck Notes 

Parobeck's notes consist of one page dated October 1, 1991, 

relating to various scientific tests that could be done. The 

Secretary claims the deliberative process privilege and the work 

product doctrine. They are described as "notes reflecting the 

thought processes and deliberations of an Agency representative 

in preparation for a report. This report was to be prepared in 

anticipation of litigation." The description is largely 

conclusory. I will order the document produced for in camera 

inspection. 

V. Beeman Notes 

The exhibit contains 19 pages of notes, 17 of which contain 

privilege claims (only pages·4 and·6 do not). The calendar 

contains 7 pages, September 1990 through April 1991. No 

privilege claims are made for calendar entries. (The entries are 

for the most part blacked-out, which indicates, as I noted above, 

that they are unrelated to the AWC litigation). 

Page 1, entitled 9/17/90 staff meeting (the pages are not 

numbered; some are not dated; I am considering them in the order 

in which they appear in the exhibit), claims work product and 

deliberative process privileges for an entry described as 

"references discussion on litigation strategy and issues to be 

considered in developing enforcement strategy." A further 

notation claims investigative privilege for an entry described as 

Discusses I.Go Investigation and use of MSHA personnel on other 

ongoing investigations. 11 These notations are sufficiently 

factual for me to determine that the claimed privileges apply. 

No overriding need for the document has been shown by 

Contestants. The motion to compel is denied. 

Page 2 headed 9/17 Abnormal White Centers. The Secretary 

asserts the attorney-client work product, and investigative 

ileges for an entry described as uiu. s. Attorney discussion on 

litigation strategy and to release this information would reveal 

the thought processes of the U.S. Attorney and how the criminal 

case was developed.1e She asserts the attorney-client and work 

product privileges for another entry described as "Discussion of 

litigation concerns between Sol and MSHA." Each of these 

assertions contains sufficient factual material for me to uphold 

the privilege claims, the work product and investigative 

privileges in the first case; the attorney-client privilege in 

the second. Contestants have not shown an overriding need for 

the document. The motion to compel is denied. 

1212 
Page 3 is headed AWC continued. The Secretary asserts the 

attorney-client, work product, and deliberative process 

privileges. The deleted entry is described as "Discussions on 

contacts with U.S. Attorney regarding AWC litigation strategy, 

including thoughts and impressions of attorneys concerning the 

developments of the criminal case questions with MSHA officials 

present." I uphold the deliberative process and work product 

privileges. Since Contestants have not shown an overriding need 

for the document, the motion to compel is denied. 

Page 5 is entitled Peluso AWC. The Secretary claims the 

work product privilege for a deletion described as "Discussion of 

scientific opinion and possible report of Secretary's potential 

expert prepared in anticipation of litigation." I am unable to 

rule on the asserted privilege with this description. The 

Secretary is directed to produce the page for my camera 

inspection. 

Page 7 is entitled 10/2~_(cont). The Secretary asserts that 

lines 1 to 29 contain ''[d]iscussion of strategy in ongoing 

criminal investigations with the U.S. Attorney and other MSHA 

officials. Discussions of legal strategy regarding AWC criminal 

enforcement and civil enforcement." She claims the 

investigative, deliberative process, and attorney-client 

privileges. I uphold her assertion of the investigative 

privilege. The description is not sufficient to support the 

other claimed privileges. Lines 30 to 39 are described as 

deliberations on other potential target companies for criminal 

investigation, and as to the role of special investigations for 

the U.S. Attorney's Office. The Secretary claims the 

investigative and work product privileges. I uphold her 

assertion of the investigative privilege, but not the work 

product claim. Since Contestants have not shown an overriding 

need for the document, the motion to compel denied. 

Page 8 headed 10/31 Leighton Farley" The Secretary 

claims the work product, attorney-client, and investigative 

privileges for an entry described as 11 Discussion of strategy for 

negotiating criminal plea agreement between MSHA, U.S. Attorneys, 

and Solicitor 1 s Office attorneys. I uphold her claim of the 

investigative priv ege. The description is not sufficient to 

support the other claimed privileges. Contestants have not shown 

an overriding need for the document. The motion to compel is 

denied. 

Page 9 is headed Mike Carey. The Secretary asserts the 

attorney-client, work product, and deliberative process 

privileges for an entry described as "Discussion of opinions and 

theories on U.S. Attorney negotiating plea agreement with 

Solicitor's Office attorneys and U.S. Attorneys participating and 

giving advice and opinion on such matter." I uphold her claim of 

1213 
the attorney-client and work product privileges. The motion to 

compel is denied. 

Page 10 is entitled AWC Jerry/Ed/Ron. The Secretary asserts 

the work product, attorney-client, and deliberative process 

privileges for a deletion described as "Discussion of Legal 

opinions and theories regarding U.S. Attorney negotiating 

criminal plea agreements with Solicitor's Office attorneys and 

expressing." Although this description appears to be incomplete, 

I find it sufficient to uphold the claim of work product 

privilege. Contestants have not shown an overriding need for the 

document. The motion to compel is denied. 

Page 11 begins with the Secretary's assertion of the 

deliberative process, work product, and investigative privileges 

for a deletion described as "Discussions of possible legal 

strategy against other companies and how to proceed criminally 

and/or civilly. 11 I uphold her claim of the work product 

privilege. Since Contestant~have not shown an overriding need 

for the document, the motion to compel is denied. In the middle 

of page 11, after the notation Ed Clair AWC, the Secretary 

asserts the attorney-client and work product privileges for a 

deletion described as "Discussions between Solicitor's Office and 

MSHA on U.S. Attorney's negotiations on plea agreements and 

development of ongoing criminal investigations." I uphold her 

claim of both these privileges. The motion to compel is denied. 

At the bottom of page 11, after the notation AWC-Clair, Hugler, 

Mascolino, Schell, White, the Secretary asserts the attorneyclient privilege for a deletion described as "Discussions between 

Solicitor's Office and MSHA on U.S. Attorney's negotiations on 

plea agreements. 11 I uphold her claim. The motion to compel is 

denied. 

12 headed 11/8 (cont). The Secretary asserts the 

work product and attorney-client privileges for an entry 

described as 0 oiscussions between Solicitor's office and MSHA on 

U.S. Attorney 1 s negotiations on plea agreements and on further 

criminal case/investigation development. 0 She also asserts the 

work product and attorney-client privileges for another entry 

described as 11 Discussions between Solicitor's Office and MSHA on 

U.S. Attorney 1 s negotiations on plea agreements and on further 

criminal case development and procedures." I uphold these 

privileges for both entr The motion to compel is denied. 

Page 13 contains a notation dated 11/28 for which the 

Secretary claims the deliberative process privilege because it 

would reveal 11 Suggested and rejected computations regarding AWC 

civil penalties. 11 I am unable to rule on the asserted privilege 

with this description. The Secretary is directed to produce the 

page for my camera inspection. Page 13 also contains a 

notation dated 11/29, for which the Secretary claims the work 

product privilege because it would reveal a 11Request and 

1214 
description of information needed in negotiating criminal plea 

agreement. 11 I uphold her claim of the work product privilege. 

Since Contestants have not shown an overriding need for the 

document, the motion to compel is denied. 

Page 14 is headed 12/7 Nelson Cohen - AWC Pittsburgh. The 

Secretary asserts the attorney-client, investigative, and work 

product privileges for an entry described as "Discussion of 

information needed by attorneys to be provided by MSHA for 

ongoing investigations and further assisting in the development 

and procedures of criminal investigations and litigation. 11 I 

uphold her claim of the investigative and work product 

privileges. Contestants have not shown an overriding need for 

the document. The motion to compel denied. 

Page 15 is dated 2/25/91. The Secretary asserts the 

attorney-client privilege for an entry described as "Discussions 

between Solicitor's Office attorneys and MSHA on litigation 

strategy. 11 I uphold her cl~!m~ The motion to compel is denied. 

Page 16 is headed 3/4 Staff Meeting. The Secretary asserts 

the attorney-client, work product, and investigative privileges 

for a deletion described as "Discussion between MSHA employee and 

Asst. U.S. Attorney concerning the development and procedures of 

handling criminal actions on AWC cases.n She asserts the same 

privileges for another deletion described as "Discussion with 

U.S. Attorney on strategy in proceeding against target company." 

For both entries, I uphold the Secretary's claim of the attorneyclient and investigative privileges. The motion to compel is 

denied. 

Page 17 conta a notation dated 3/5? for which the 

Secretary claims attorney-client and work product privileges 

because it would reveal 11 Discussion between MSHA and Solicitor 1 s 

Office attorneys on strategy regarding AWC litigation involving 

certain companies.ii I uphold her claim of work product 

privilege. Since Contestants have not shown an overriding need 

for the document, the motion to compel is denied" 

Page 18 contains a notation dated 3/13: for which the 

Secretary claims attorney-client and investigative privileges 

because it would reveal 11 results obtained in ongoing criminal 

investigations and opinions on further developments with opinions 

and advice from U.S. Attorneys to MSHA. 11 I uphold her claim of 

both these privileges. The mot to compel is denied. 

Page 19 is completely deleted. The Secretary asserts the 

investigative privilege for an entry described as "Information 

which indicates discussions about developments in criminal 

investigations and might lead to information protected by 6(e) 

grand jury matters. 11 I uphold the Secretary's assertion of the 

investigative privilege. Contestants have not shown an 

1215 
overriding need for the document. The motion to compel is 

denied. 

VI. Hugler Notes 

The exhibit consists of pages from 1989, 1990, and 1991 

calendars and identifies the excised portions by numbers which 

correspond to lists detailing the Secretary's claims of 

privilege. 

1989 Calendar Entries 

1. The Secretary asserts the investigative, attorneyclient, and work product privileges for an entry reflecting 

conversation with the U.S. Attorney regarding the approach and 

progress of the on-going criminal investigation. I uphold the 

Secretary's claim of the investigative privilege. Contestants 

have not shown an overriding need for the document. The motion 

to compel is denied. 

2. The Secretary asserts the work product privilege for an 

entry reflecting the concerns of the U.S. Attorney and 

information relating to the on-going criminal investigation. I 

uphold the Secretary's claim. Contestants have not shown an 

overriding need for the document. The motion to compel is 

denied. 

3. The Secretary asserts the investigative, work product, 

attorney-client, and deliberative process privileges for notes of 

a meeting with the U.S. Attorney, MSHA, and the Solicitor's 

office revealing information pertaining to the on-going criminal 

investigation and potential criminal charges and civil 

enforcement action. I uphold the Secretaryus claim of the 

investigat and work product privileges. Since the Contestants 

have not shown an overriding need for the document, the motion to 

compel is denied. 

4. The Secretary asserts the investigative and deliberative 

process privileges for an entry reflecting development of the 

investigation and revealing the identity of a potential target. 

I uphold the Secretary's claim of the investigative privilege. 

Contestants have not shown an overriding need for the document. 

The motion to compel is denied. 

5. The Secretary asserts the attorney-client, 

investigative, work product, and deliberative process privileges 

for notes of a meeting with the U.S. Attorney and Department of 

Justice reflecting development and coordination of investigations 

and MSHA's participation regarding criminal investigation and 

civil enforcement. I uphold the Secretary's claim of the 

investigative and work product privileges. Contestants have not 

1216 
shown an overriding need for the document. The motion to compel 

denied. 

6. The Secretary asserts the investigative and deliberative 

process privileges for an entry reflecting discussion with MSHA 

special investigators regarding the on-going criminal 

investigation and the effect of expanding the criminal 

investigation upon MSHA 1 s resources. I uphold the Secretary's 

claim of investigative privilege. Contestants have not shown an 

overriding need for the document. The motion to compel is 

denied. 

7. The Secretary asserts the deliberative process privilege 

for an entry described as "Notes reflect Hugler's thought-process 

for providing an appropriate MSHA response to hypothetical future 

events." This description is not sufficient to enable me to rule 

on the asserted privilege. I will order the document produced 

for camera inspection. 

8. The Secretary asserts the investigative, attorneyclient, and work product privileges for notes of a report on a 

meeting between MSHA and U.S. Attorneys regarding development of 

the on-going criminal investigation, use of information, and 

evaluation of the case. I uphold the Secretary's claim of the 

investigative privilege, but not the attorney-client or work 

product privileges. Contestants have not shown an overriding 

need for the document. The motion to compel is denied. 

1990 Calendar Entries 

lo The Secretary asserts the investigative, attorneyand work product privileges for notes of a meeting with 

's office and MSHA regarding the criminal 

ites for l enforcement actions. I 

uphold the Secretary~s claim of attorney-client privilege. The 

mot to compel is denied. 

The Secretary asserts the investigative: attorneycl and deliberative process leges for notes of a 

meeLing with the Sol 1 s office and MSHA to scuss a 

decision regarding the on-going criminal investigation. I uphold 

the Secretary 1 s claim of the investigative and deliberat 

s pr , but not the attorney-client pr lege. 

Contestants have not shown an overriding need for the document. 

The motion to compel is denied. 

3. The Secretary asserts the attorney-client, deliberative 

process, and investigative privileges for notes of a conference 

call between Hugler, MSHA personnel, the Solicitor's off , and 

U.S. Attorneys regarding the progress of on-going criminal 

investigations and possible action by MSHA. I uphold the 

Secretary's claim of the deliberative process and investigative 

1217 
privileges. Since Contestants have not shown an overriding need 

for the document, the motion to compel is denied. 

4. The Secretary asserts the investigative privilege for an 

entry reflecting a development in an on-going criminal 

investigation. I uphold her claim. Contestants have not shown 

an overriding need for the document. The motion to compel is 

denied. 

5. The Secretary asserts the attorney-client, work product, 

and deliberative process privileges for an entry reflecting 

confidential discussions at a civil enforcement strategy meeting 

between Hugler and the Solicitor's Office. I uphold the 

Secretary's claim of all three privileges. The motion to compel 

is denied. 

6. The Secrctary asserts the attorney-client, work product, 

and deliberative process privileges for an entry reflecting 

confidential discussions at,,a meeting with Doug White involving 

possible civil actions and litigation strategy. I uphold the 

Secretary's claim of all three privileges. The motion to compel 

is denied. 

7. The Secretary asserts the deliberative process and 

attorney-client privileges for an entry reflecting Hugler's 

concerns about a possible Peabody plea agreement and a related 

privileged communication to the Solicitor's office. I uphold the 

Secretary's claim of the attorney-client privilege. The motion 

to compel is denied. 

8. The Secretary asserts the deliberative process, 

investigative, and attorney-client privileges for an entry 

reflecting cons ion of MSHAis response to developments in an 

on-going investigation and a privileged communication 

between the Assistant U.S. Attorney and MSHA. I uphold the 

Secretary's claim of the attorney-client and investigative 

privileges. The motion to compel is denied. 

s. The Secretary asserts the attorney-client, 

invest , and work product privileges for notes of a 

confidential discussion between MSHA and the Solicitor 1 s office 

regarding ea bargain negotiations between the U.S. Attorney and 

Peabody. I uphold the Secretaryis claim of the work product 

privilege. Contestants have not shown an overriding need for the 

document. The motion to compel is denied. 

10. The Secretary asserts the deliberative process 

privilege for an entry reflecting "Hugler's thinking regarding 

issues and concerns that must be discussed and resolved prior to 

initiation of civil enforcement action by MSHA." This 

description not sufficient to determine the claim of 

1218 
privilege. I will order the document produced for in camera 

inspection. 

11. The Secretary asserts the attorney-client, work 

product, and deliberative process privileges for notes of a 

confidential discussion between MSHA and the Solicitor's office 

regarding MSHA's civil enforcement options. I uphold the 

Secretary's claim of the attorney-client privilege. The motion 

to compel is denied. 

12. The Secretary asserts the deliberative process 

privilege for notes reflecting Hugler's thoughts in preparation 

for a meeting with the U.S. Attorney regarding initiation of 

civil enforcement proceedings during on-going criminal 

investigations. I am unable to rule on the asserted privilege 

with this description. The Secretary is directed to produce the 

document for my in camera inspection. 

13. The Secretary asserts the investigative, work product, 

and attorney-client privileges for notes of a meeting with the 

U.S. Attorney, Solicitor's office, and MSHA regarding the Peabody 

plea agreement and future conduct of criminal investigations. I 

uphold the Secretary's claim of the investigative privilege. 

Since Contestants have not shown an overriding need for the 

document, the motion to compel denied. 

14. The Secretary asserts the deliberative process 

privilege for notes reflecting "Hugler•s concerns and opinions 

during meeting with U.S. Attorney, Solicitor's office, and MSHA 

regarding Peabody plea agreement and future conduct of criminal 

investigation." I am unable to rule on the asserted privilege 

with this description. The Secretary is directed to produce the 

document for my in camera inspection. 

15. The Secretary asserts the investigative, deliberative 

process, and work product privileges for notes of a telephone 

conversation with the U.S. Attorney concerning the future course 

of criminal investigations and potential evidence. I uphold the 

Secretary's claim of the investigative privilege. Since 

Contestants have not shown an overriding need for the document, 

the motion to compel is denied. 

16. The Secretary asserts the attorney-client, 

investigative, deliberative process, and work product privileges 

for notes of a confidential discussion with the U.S. Attorney 

concerning the Peabody case, information pertaining to criminal 

investigations, investigative techniques, and the effect of 

criminal investigations on civil enforcement proceedings. I 

uphold the Secretary's claim of the investigative and attorneyclient privileges. The motion to compel is denied. 

1219 
16A. The Secretary asserts the investigative privilege for 

a note indicating the potential target of criminal investigation. 

I uphold the Secretary's claim. Since Contestants have not shown 

an overriding need for the document, the motion to compel is 

denied. 

17. The Secretary asserts the investigative privilege for 

an entry reflecting considerations given to the effect of the 

Peabody plea agreement language on pending DOL investigations. I 

uphold the Secretary's claim. Since Contestants have not shown 

an overriding need for the document, the motion to compel is 

denied. 

}991 Calendar Entries 

1. The Secretary asserts the deliberative process privilege 

for notes of 11Hugler 1 s preparation for meeting later that day to 

discuss the Peabody plea. These notes reflect Hugler's beliefs 

and advice relating to MSHA's,public statement on the plea." I 

am unable to rule on the asserted privilege with this 

description. The Secretary is directed to produce the document 

for my in camera inspection. 

2. The Secretary asserts the attorney-client, work product, 

and deliberative process privileges for notes of a confidential 

meeting regarding preparation of the press release concerning the 

Peabody plea. The description is not sufficient to enable me to 

rule on the asserted privileges. The Secretary is directed to 

produce the document for my in camera inspection. 

3. The Secretary asserts the deliberative process privilege 

fer notes reflecting HuglerGs thoughts and outlining his 

suggested organization of the proposed press release. I deny the 

s claim of lege. The motion to compel granted. 

4. The Secretary asserts the deliberative process privilege 

for a note identifying an entity against which MSHA was 

considering itiating civ action prior to April 4, 1991. I am 

unable to rule on the asserted privilege with this description. 

The Secretary directed to produce the document for my 

camerq ion. 

5. The Secretary asserts the deliberative process and 

attorney-client privileges for a note of a discussion regarding 

an entity and the timing of proposed civil action against that 

entity. I am unable to rule on the asserted privilege with this 

description. The Secretary is directed to produce the document 

for my in gamera inspection. 

6. The Secretary asserts the deliberative process, 

attorney-client, and work product privileges for notes of a 

meeting with the Solicitor's office to plan a briefing for the 

1220 
Acting Secretary regarding AWCs and proposed enforcement actions. 

I am unable to rule on the asserted privilege with this 

description. The Secretary is directed to produce the document 

for my camera inspection. 

7. The secretary asserts the deliberative process privilege 

for notes of a briefing for the Acting Secretary regarding AWCs 

and proposed enforcement actions. I uphold the Secretary's 

claim. Contestants have not shown an overriding need for the 

document. The motion to compel is denied. 

8. The Secretary asserts the deliberative process and work 

product privileges for notes of discussions regarding proposed 

enforcement actions and assignments of responsibilities. I am 

unable to rule on the asserted privileges with this description. 

The Secretary directed to produce the document for my 

in camera inspection. 

9. The secretary asserts the deliberative process, 

attorney-client, investigative, and work product privileges for 

notes of a "confidential discussion of progress of investigations 

and DOL position with DOJ regarding which types of cases should 

be pursued criminally. In preparation for discussions with U.S. 

Attorneys. 11 I uphold the Secretary's claim of the investigative 

and work product privileges. Since Contestants have not shown an 

overriding need for the document, the motion to compel is denied. 

9A. The Secretary asserts the investigative, work product, 

and attorney-client privileges for a note regarding a possible 

target of criminal investigation and an exchange of comments 

between MSHA and U.S. Attorneys. I uphold the Secretary 1 s claim 

of the investigat privilege. Since Contestants have not shown 

an overriding need for the document, the motion to compel is 

denied. 

lOc The Secretary asserts the investigative, deliberative 

process, and work product privileges for notes of a confidential 

ing on an on-going criminal investigation. I uphold the 

Secretary's claim of the investigative privilege. Since 

Contestants have not shown an overriding need for the document, 

the motion to compel is denied. 

11. The Secretary asserts the investigative, work product, 

and attorney-client privileges for notes of a confidential report 

on on-going criminal investigations. I uphold the Secretary's 

claim of the investigative privilege. Since Contestants have not 

shown an overriding need for the document, the motion to compel 

is denied. 

1221 
VII. Tattersall Document 

The exhibit consists of a single page and identifies two 

excised portions by numbers which correspond to a list detailing 

the Secretary's claims of privilege. The document is described 

as an unrelated, unsigned summary of the AWC investigations, 

marked "Confidential," prepared in early 1990. 

1. The Secretary asserts the investigative and work product 

privileges for an entry revealing the techniques, timing, and 

pace of a criminal investigation and the strategy and opinions of 

government attorneys and investigators. The description is 

conclusory. I will order the document produced for in camera 

inspection. 

2. The secretary asserts the investigative privilege for an 

entry revealing the location and potential targets of possible 

criminal investigations. Th~_description is conclusory. I will 

order the document produced for in camera inspection. 

ORDER 

In accordance with the above discussion, the Secretary is 

ORDERED to produce on or before August 3, 1992, the document 

denominated No. 3 in the Hugler Calendar-1991. She is further 

ORDERED to submit to me on or before August 3, 1992, for my 

in camera inspection the documents described in the above 

discussion. In all other cases, her claim of privilege is 

upheld, and the motion to compel is DENIED . 

. , 

I (. 

James A. Broderick 

Administrative Law Judge 

Distribution~ 

• 1 ~Q Denise Galambos Esq., Office of the 

Uo S. Department of Labor, 4015 Wilson Boulevard, 

Arlington: VA 22203 (Certified Mail) 

Henry et, ., G. Lindsay Simmons, Esq., James Zissler, 

Jackson and Kel , 1701 Pennsylvania Avenue, N.W., 

Washington, DC 20006 (Certified Mail) 

All others regular mail 

/fb 

1222 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ENERGY FUELS COALu 

INCORPORATED11 

Respondent 

]}JO K S1 HCf T NW ii 1 l OQf{ 

W/,SHINGTOt( D.C. 2(f)01) 

July 31, 1992 

CIVIL PENALTY PROCEEDING 

Master Docket No. 91-1 

Docket No. WEST 92-102 

A. C. No. 05-03455-03597 D 

Southfield Mine 

DENIAL OF MOTION TO LIFT STAY 

This case is a civil penalty proceeding filed by the Secretary under section 105(d) of the Act. The citation involved in 

this case dated June 7, 1991, charges the operator with a violation of 30 C.F.R. § 70.209(b) based upon the allegation that the 

weight of the subject respirable dust cassette had been altered 

and a portion of the dust removed. 

On June 19, 1992, this case was stayed until a decision is 

issued in IN RE: CONTEST OF RESPIRABLE DUST SAMPLES ALTERATION 

CITATIONS, Master Docket No. 91-1 which is pending before Administrative Law Judge James A; Broderick. As stated in the June 19 

orderq the Secretary i~sued 4700 citations on April 4, 1991, 

which resulted in over 3000 notices of contest and over 700 

penalty petitions all of which have been made a part of Master 

Docket No. 91-1. As noted aboveg the citation this case was 

issued after April 4o All cases involving citations that were 

issued after April 4 have been stayed so that the limited resources of the Commission in resolving the several thousand dust 

cases from the l Li, citations are not unduly taxed. 

On June 29, 1992, the operator filed a motion for relief of 

The operator currently has two cases in the master docket, 

WEST 91-475 and 91-476" The operator argues that the stay will 

impose a great hardship and will be prejudiced f this case 

remains on stay and the others move forward. According to the 

operatoru the staying of this case will cause the doubling of the 

costs to litigate the cases, and there a likelihood that those 

individuals involved with this case may no longer be employed by 

the operator by the time a hearing is held. 

on July 10, 1992, the Solicitor filed a response to the 

operator's motion. The Solicitor states that the motion should 

not 'be acted upon until Judge Broderick determines the order of 

cases that will be brought to trial. 

1223 
As pointed out by both parties, Judge Broderick conducted a 

prehearing conference in Master Docket 91-1 on July 17, 1992, to 

determine the order of cases. At the prehearing conference Judge 

Broderick stated that he will take under advisement how the cases 

will proceed and requested that the parties submit brie-fs on this 

issue. 

I believe the most appropriate course here is to wait until 

Judge Broderick decides how to proceed in the Master Docket. If 

this operator's cases are not to be heard first, then it loses 

nothing by continuance of the stay. Were the operator's motion 

granted at this stage every citation issued after April 4, 1991, 

could be joined in the already unwieldy Master Docket. Accordingly u I conclude that this case should remain on stay. 

In light of the foregoing, the operator's motion for relief 

from stay is DENIED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, u. So Department of Labor, 4015 Wilson Boulevard, 

Arlington VA 22203 (Certified Mail} 

• D. Barber, Esq., Welborn, Dufford, Brown & Tooley, PC, 

700 Broadway, Suite 1700, Denver, co 80290-1701 (Certified 

Mail) 

Mr. Gary Carroll, Safety Director, Energy Fuels Coal, Inc., P. o. 

3ox 449p ?lorence, co 81226 Certified Mail) 

vU.S. GOVERNMENT PRINTINCOmCE:l 9 92 .3 ! 3. 2 6 op 3 3 7 6 

1224