SEPTEMBER 1994 

COMMISSION ORDERS 

09-01-94 

09-16-94 

09-20-94 

09-26-94 

Port Costa Materials, Inc. 

Rocky Hollow Coal Company, Inc. 

Madison Branch Management 

Randall Patsy v. Big 'B' Mining Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

09-12-94 

09-15-94 

09-16-94 

09-20-94 

09-23-94 

09-26-94 

09-27-94 

09-27-94 

09-28-94 

09-28-94 

09-28-94 

09-28-94 

09-29-94 

09-30-94 

Sec. Labor on behalf of William 

Kaczmarczyk v. Reading Anthracite 

Broken Hill Mining Company, Inc. 

Sec. Labor on behalf of Donald Gregory 

et al. v. Thunder Basin Coal Co. 

Boyer Ready Mix Sand & Rock Inc. 

Walker Stone Company, Inc. 

Felix Carrasco v. Eddy Potash, Inc. 

Manalapan Mining Company 

Elmer J. Nicholson empl by A-Rock Inc. 

Bob & Tom Coal Company 

Crockett Collieries (KY) Inc. 

Brown Brothers Sand Company 

The Pit 

Magic Coal Company 

Eastside Rock Products 

ADMINISTRATIVE LAW JUPGE ORDERS 

08-31-94 Keystone Coal Mining Corp. 

i 

WEST 93-353-M 

KENT 94-1051 

WEVA 93-218-R 

PENN 94-132-D 

PENN 94-417-D 

KENT 93-410 

WEST 92-279-D 

CENT 93-39-M 

CENT 94-54-M 

CENT 94-40-DM 

KENT 94-136 

WEST 94-162-M 

KENT 94-116 

KENT 94-520 

SE 94-21-M 

WEST 94-97-M 

KENT 94-427 

WEST 92-318-M 

PENN 91-451-R 

Master 91-1 

Pg. 1929 

Pg. 1931 

Pg. 1934 

Pg. 1937 

Pg. 1941 

Pg. 1949 

Pg. 1951 

Pg. 1953 

Pg. 1955 

Pg. 1962 

Pg. 1964 

Pg. 1967 

Pg. 1974 

Pg. 1994 

Pg. 1996 

Pg. 2008 

Pg. 2015 

Pg. 2022 

Pg. 2025 

SBPTEM'.BBR 1994 

Review was granted in the following cases during the month of Septe!Dber: 

Secretary of Labor, MSHA v. Port Costa Materials, Inc., Docket No. WEST 

93-353-M. (Judge Morris, July 28, 1994} . 

Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, Docket No. SE 

94-244-R. (Judge Melick, July 28, 1994}. 

Secretary of Labor, MSHA v. Manalapan Mining Inc., Docket No. KENT 93 -614. 

(Judge Weisberger, August 8, 1994). 

ASARCO, Incorporated v. Secretary of Labor, MSHA, Docket No. 

(Judge Maurer, August 8, 1994). 

SE 94-362-RM. 

Secretary of Labor, MSHA v. Rocky Hollow Coal Company, Docket No. KENT 

94-1051. (Request for relief from MSHA's final order). 

Secretary of Labor, MSHA v. Madison Branch Management, Docket No. WEVA 

93 - 218-R. (Judge Feldman, Interlocutory Review of September 8 and 16, 1994 

orders) . 

Secretary of Labor, MSHA v. D.H. Blattner & Sons, Docket No. 

etc. (Judge Morris, August 15, 1994) 

WEST 93-123-M, 

Randall Patsy v. Big B Mining Company, Docket No. PENN 94-132-D. 

Feldman, August 16, 1994). 

(Judge 

Secretary of Labor, MSHA v. Amax Coal Company, Docket No. LAKE 94-55. 

Feldman, August 19, 1994). 

Review was denied in the following case during Septe!Dber; 

Thunder Basin Coal Company v. Secretary of Labor, MSHA, Docket No. WEST 

94-238 -R. (Judge Amchan, August 28, 1994). 

ii 

(Judge 

COMMISSION ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SATETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

September 1, 1994 

Docket Nos. WEST 93-353-M 

PORT COSTA MATERIALS, INC. 

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 seq. (1988). 

On July 28, 1994, Administrative Law Judge John J. Morris issued 

a decision, in which he disposed of 73 citations issued against 

Port Costa Materials, Inc. 

The Solicitor's Office of the Secretary of Labor, in a 

letter to the judge dated August 12, 1994, pointed out a 

discrepancy in the decision with regard to Citation No. 3636555. 

The letter stated that, on pages 45 and 46 of the judge 's 

decision the citation was discussed and "affirmed," but that on 

page 66 of the decision, where the judge summarized the 

disposition of the citations in the proceeding, the citation was 

listed as "vacated." The letter requested that the "discrepancy 

... be addressed/corrected." By letter dated August 15, 1994, 

the judge responded to the request by stating that he was limited 

by the Commission's Rules to correction of clerical errors and 

did not view the correction required as a "clerical error" within 

the meaning of the rules. 

The judge's jurisdiction in this matter terminated when his 

Decision was issued on July 28, 1994. Commission Procedural Rule 

69(b), 29 C.F.R. § 2700.69(b) (1993). Under the Mine Act and the 

Commission's Procedural Rules, relief from a judge's decision may 

be sought by filing a petition for discretionary review within 30 

days of its issuance. 30 u.s.c. § 823(d) (2); 29 C.F.R. § 

2700.?0(a). We deem the Solicitor's August 12 letter to be a 

timely filed Petion for Discretionary Review, which we grant. 

1929 
See,~, Middle States Resources. I n c ., 10 FMSHRC 1130 

(September 1988). 

In light of the appare nt error in the judge's d ecision and 

the requeste d relief, we remand this ma tter to the j udge for 

further appropriate .proceedings. 

Distribution 

William W. Kates, Esq. 

Office of the Solicitor 

U. S . Departmen t of Labor 

1111 Third Avenue, Suite 945 

Seattle , WA 981 01 

Mr . Ross Gephart, President 

Port Cosua Materials, Inc . 

9000 Carquinez Scenic Drive 

P . O. Box 223 

Por t Costa, CA 94569 

, Ch airman 

fle~l~o~s6 

/ltbol~ssio er 

Administrativ e Law Judge John J . Morris 

Federal Mine Safety & Heal th Re view Commission 

1 244 Speer Boulevard , Suite 280 

Denver, Colorado 80204 

1930 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

September 16 , 1994 

SECRETARY OF l.ABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROCKY HOLLOW COAL COMPANY, INC. 

Docket No. KENT 94-1051 

A C.# 15-17331-03510 

BEFORE: Jordan, Chairman; Doyle and Holen, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (1988)("Mine Act" or 11Act"). On August 1, 1994, the Commission 

received from Rocky Hollow Coal Company, Inc. ("Rocky Hollow") a request to reopen 

uncontested civil penalty assessments that had become final orders of the Commission 

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

Section 105(a) of the Mine Act requires the Secretary of Labor to notify the 

operator of "the civil penalty proposed to be assessed" after issuing a citation or order 

for an alleged violation. 30 U.S.C. § 815(a). Section 105(a) allows the oper~tor 30 days 

to contest a proposed penalty and further provides that, if the operator fails to contest it, 

the assessment "shall be deemed a final order of the Commission and not subject to 

review by any court or agency." .h'h Rocky Hollow states that it failed to file with the 

Department of Labor's Mine Safety and Health Administration ( 11MSHA11) a 11Green 

Card" notice of contest challenging MSHA' s proposed civil penalties within the 30-day 

period set forth in section 105(a), due to "the press of business and management of 

other litigation" in which its counsel was involved, and the misplacement of its file by its 

counsel, which resulted in the matter not appearing on counsel's calendar. Rocky 

Hollow asks the Commission to reopen this matter so that it may file its notice of 

contest. 

1931 
Rocky Hollow failed to contest the proposed assessments within 30 days and, 

accordingly, they have become final orders of the Commission. The Commission bas 

held that in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b) ("Rule 

60(b) "), it possesses jurisdiction to reopen uncontested assessments that have become 

final under section 105(a). Jim Walter Resources. Inc., 15 FMSHRC782, 786-89 (May 

1993); see also, Jim Walter Resources. Inc., 16 FMSHRC 1209, 1210 (June 1994). Rule 

60(b) relief from a final order is available in circumstances such as a party's mistake, 

inadvertence, or excusable neglect. 

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

Hollow' s position. In the interest of justice, we reopen the matter and remand it for 

assignment to a judge to determine whether Rocky Hollow has met the criteria for relief 

under Rule 60(b ). If the judge determines that relief under Rule 60(b) is appropriate 

. and permits Rocky Hollow to file its notice of contest, this case shall proceed pursuant 

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

For the foregoing reasons, Rocky Hollow' s request is granted in part and this 

matter is remanded for assignment. 

MLJ ~~Jordan, L~Jv- hairman 

Arlene Holen, Commissioner 

1932 
Distribution 

Christo?her Thoillas Ratliff, Esq. 

P.O. Box 1306 

Pikeville, KY 415J2 

C. Bryan Don, Chief 

Civil Penalty Processin~ Unit 

~ine Safety & Health Administration 

U. S. Department of Labor 

4013 Wilson Blvd . , Suite 900 

Arlington, VA 22203 

1933 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

September 20, 1994 

MADISON BRANCH MANAGEMENT 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

MADISON BRANCH MANAGEMENT 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PROTECTIVE SECURITY SERVICES AND 

INVESTIGATIONS, INC. 

ORDER 

Contest Proceedings 

Docket Nos. WEV A 93-218-R 

WEVA 93-219-R 

WEV A 93-220-R 

Civil Penalty Proceedings 

Docket Nos. WEV A 93-373 

WEVA 93-412 

Civil Penalty Proceeding 

Docket No. WEV A 93-415 

Before us is a Petition for Interlocutory Review and Order Suspending Hearing filed 

by Madison Branch Management ("Madison"). The Secretary of Labor ("Secretary") supports 

Madison's petition. By orders dated September 8 and 16, 1994, Administrative Law Judge 

Jerold Feldman denied motions for certification to the Commission of his interlocutory 

rulings. See Commission Procedural Rule 76(a)(l)(ii), 29 C.F.R. § 2700.76(a)(l)(ii). A 

hearing in these proceedings is currently scheduled for September 22, 1994, before Judge 

Feldman. 

1934 
The judge has issued a number of interlocutory orders, the thrust of which has been to 

deny motions by the Secretary to dispose of the above-captioned cases pursuant to a settlement agreement reached among the parties.

1 The judge based his determinations on concerns 

that additional abatement measures beyond those required by the Secretary may be necessary 

in order to remove the risk to safety posed by the violations at issue.

2 We view the instant 

petition as one seeking review of these interlocutory orders taken as a whole.

3 

The Commission concludes that the judge's interlocutory rulings involve a controlling 

question of law and that immediate review may materially advance the final disposition of the 

proceeding. See 29 C".F.R. § 2700.76(a). The Commission therefore grants Madison's 

petition, suspends briefing before the Commission, and stays the hearing set for September 

22, 1994, and all other proceedings before Judge Feldman. 

M:l~J!~ 

Arlene Holen, Commissioner 

1 These orders include an Order Denying Motions for Approval of Settlements, dated June 

8, 1994, an Order Denying Joint Motion for Summary Decision, dated July 22, 1994, and an 

Order Denying the Secretary's Motion for Summary Judgment, dated August 29, 1994. 

2 See. e.g., Order Denying The Secretary's Motion for Summary Judgment at 2. 

3 Rule 76(b) states that "[a] copy of the Judge's interlocutory ruling sought to be reviewed 

and of the Judge's order denying the petitioner's motion for certification sh.all be attached to the 

petition." 29 C.F.R. § 2700.76(b). Here, the petitioner omitted a copy of the challenged 

interlocutory rulings from its petition. However, Madison's request for "immediate review of 

Judge Feldman's rulings" concerning "the respondents' good faith efforts to achieve rapid 

compliance in abating the citations involved in these proceedings," together with the underlying 

motions for certification, sufficiently identify the interlocutory rulings sought to be reviewed. 

1935 
Distribution 

(by fax & regular mail) 

Christopher B. Power, Fsq. 

Robinson & McElwee 

P.O. Box 1791 

Charleston, WV 25326 

Patrick L. DePace, Esq. 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 2220J 

James Walker, Esq. 

White & Browning Building, Suite 201 

P.O. Box 358 

Logan, West Vrrginia 25601 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1936 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

RANDALL PATSY 

V. 

BIG "B" MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON. O.C. 20006 

September 26, 1994 

DISCRIMINATION PROCEEDING 

DOCKET NO. PENN 94-132-D 

ORDER 

For the second time, Complainant Randall Patsy appeals from Administrative Law 

Judge Jerold Feldman's dismissal of this discrimination proceeding, arising under the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. ("Mine Act"). Based on 

Patsy's apparent wish to pursue this case despite earlier statements suggesting the contrary, 

the Commission vacated the judge's initial dismissal of this matter, remanded the case, and 

ordered that the judge schedule it for hearing. 16 FMSHRC 1237, 1237-38 (June 1994). On 

remand, the judge issued an Order on Remand and Notice of Hearing, setting a hearing date 

of September 20, 1994. Following receipt of that order and review of a Commission decision 

transmitted to the parties by the judge, Patsy wrote to the judge and stated that he doubted 

that he could prove that he was a "miner" and requested the name of "some other agency I 

should contact." Thereafter, Patsy communicated with the judge's office twice by telephone 

and last stated, on August 5, 1994, that he was consulting with a lawyer and would let the 

judge know what the lawyer recommended. On August 16, 1994, the judge issued an Order 

Reinstating Dismissal, noting that he had not heard from Patsy nor had his attorney filed an 

appearance in the proceeding. 

On August 19, 1994, Patsy wrote to the judge, stating that he was appealing the 

dismissal and that he felt he had a good chance of winning the case. 

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

August 16, 1994. Commission Procedural Rule 69(b), 29 C.F.R. § 2700.69(b) (1993). 

Under the Mine Act and the Commission's procedural rules, relief from a judge's decision 

may be sought by filing a petition for discretionary review within 30 days of its issuance. 

1937 
30 U.S.C. § 823(d)(2); 29 C.F.R. 2700.70(a). We deem Patsy's letter to be a timely filed 

Petition for Discretionary Review, which we grant. See, ~, Middle States Resources. Inc., 

lO FMSHRC 1130 (September 1988). 

The Commission's procedural rules provide that a judge shall issue an order to show 

cause prior to entry of any order of dismissal unless a party fails to attend a scheduled 

hearing, in which case an order to show cause is not required. 29 C.F.R. § 2700.66(a) and 

(b)(1993). Although Patsy's equivocation has tried the patience of the judge and the 

Commission, the judge must nevertheless follow the Commission's rules. Accordingly, we 

remand this matter to the judge for disposition in accordance with the Commission's rules. In 

reopening this matter, we express no views on the merits of the case. 

For the reasons set forth above, we vacate the judge's order reinstating dismissal and 

remand this matter for further appropriate proceedings. 

Arlene Holen, Commissioner 

1938 
Commissioner Doyle, dissenting: 

Although I joined in the Commission's earlier order remanding this case to the 

administrative law judge for further proceedings, I must respectfully dissent from my 

colleagues' decision to again remand the case. · 

In response to a complaint filed some eight months out of time, the Mine Safety and 

Health Administration ("MSHA") determined that Mr. Patsy had not been discriminated 

against under the Mine Act, based on the fact that he was "not a 'miner' at the time of the 

alleged discharge. " MSHA Letter dated Dec.1, 1993. Mr. Patsy then filed his own 

complaint with the Commission, pursuant to section 105(c)(3) of the Federal Mine Safety and 

Health Act of 1977 ("Mine Act"). Following indecision by Mr. Patsy as to whether he 

wished to pursue the matter under the Mine Act, Judge Feldman scheduled a hearing but 

ordered Patsy to show cause why the matter should not be dismissed if he did not state 

unequivocally that he wished to pursue his complaint. Mr. Patsy responded by stating that 

he "would be better off to pursue this as a civil suit locally." Patsy Letter dated Apr. 18, 

1994. The judge dismissed the matter. 

Subsequently, Mr. Patsy petitioned for review and, on June 21, the Commission 

vacated the Order of Dismissal and remanded for a hearing on the merits because it 

"appear[ed] that Mr. Patsy now wishe[d] to pursue his complaint." 16 FMSHR~ 1237, 1238 

(1994). On July 11, Judge Feldman rescheduled the hearing for September 20 in Butler, 

Pennsylvania. As part of his pretrial order, the judge directed the parties' attention to 

Cyprus Empire Com., 15 FMSHRC 10 (Jan. 1993), and the threshold issue of whether Patsy 

was a miner. In response to that order, Mr. Patsy advised the judge that he could "not prove 

that [he] was a miner at the time [he] was fired" and that his work had been "at a mobile 

home park." Patsy Letter dated July 20, 1994. Based on that letter, on Patsy's subsequent 

advice to Judge Feldman's secretary that "[he didn't] have a leg to stand on" (Order dated 

August 16, 1994), and on his failure to advise the judge of t~e outcome of a planned contact 

with an attorney on August 10, Judge Feldman reinstated his earlier order of dismissal. 

Although it may have been better practice for the judge to hold off until the hearing 

date was closer before dismissing, I disagree that, under these facts, the judge was required 

to issue another order to show cause or travel to the hearing site and await Patsy's attendance 

(or nonattendance) before dismissing this case. If he wished to proceed with his complaint, 

Mr. Patsy has been given more than enough opportunities to make that intention clear. 

1939 
Distribution 

Randall Patsy 

~.D. #1, Box 290 

East Brady, PA 16028 

Ms. Susan Mackalica 

Bi3 B Minin~ Company , Inc . 

R.D . Ill 

West Sunbury, PA 16061 

Administrative La~ Judge Jerold Feldman 

Federal Nine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1940 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 1 2 1994 

SECRETARY OF LABOR, TEMPORARY REINSTATEMENT 

MINE SAFETY AND HEALTH PROCEEDING 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

. . 

: Docket No. PENN 94-417-D 

WILLIAM KACZMARCZYK, 

Complainant WILK CD 94-01 

Ellangowan Refuse Bank No. 45 

v. 

READING ANTHRACITE COMPANY, 

Respondent 

Appearances: 

Before: 

. . 

ORDER OF TEMPORARY REINSTATEMENT 

Stephen D. Turow, Esq., Office of the Solicitor, 

U. s. Department of Labor, Arlington, Virginia, 

for Complainant; 

Martin J. Cerullo, Esq., Frumkin, Shralow & 

Cerullo, P. c., Pottsville, Pennsylvania, for 

Respondent. 

Judge Amchan 

Factual Background 

William Kaczmarczyk began working for Respondent, Reading 

Anthracite Company, in December 1976 (Tr. 21-22). He became an 

electrician with the company in 1985, working at the St. Nicholas 

Breaker and the Ellangowan Refuse Bank (Tr. 23-25). In . October 1989, Kaczmarczyk injured his back while moving a 300-

pound motor with a bar (Tr. 43). He was on workers' compensation 

from October 1989 to January 1992, except for a 4 1/2 week period 

in February 1991, when he unsuccessfully tried to return to work 

(Tr. 46-49). On January 8, 1992, after undergoing a cervical 

spinal fusion four months earlier, Kaczmarczyk returneq to work 

on light duty (Tr. 49). 

complainant worked on .light duty from January 8, 1992 .until 

October 15, 1993, when he was placed back on workers• 

compensation status {Tr. 52-53). During this period, he had two 

1941 
7-day absences due to recurrence of back pain in July and 

November 1992, and a number of shorter absences (Tr. 54-56, 133-

34) . 

Kaczmarczyk is the treasurer of Local 7226 of the United 

Mine Workers of America (UMW or:· UMWA) ·• ·He is also· a mine 

committeeman and safetyman for his local·, which represents 

Respondent's employees at the st. Nicholas Breaker (Tr. - 33-35). 

Another UMWA local, # 807, represents employees at the Ellangowan 

refuse bank (Tr. 34). 1 

Complainant served as employee walkaround representative for 

an MSHA electrical inspection that was conducted on October 4, 

12, and 14, 1993, at the Ellangowan Refuse Bank (Tr. 105-08). on 

the last day of the inspection, Respondent's safety director, 

David Wolfe, questioned the need for Mr. Kaczmarczyk's presence 

during the inspection since Michael Ploxa, President of Local 

807, was also serving as a walkaround representative (Tr. 107-13, 

268-69). 

The next day, October 15, 1993, Complainant was informed 

that he was being put back on workers' compensation (Tr. 52-53, 

122-23). He alleges that this was done in retaliation for his 

activities as walkaround representative during the October 1993 

inspection, which resulted in nine citations being issued to 

Respondent (Exhibit B to the Secretary of Labor's Application for 

Temporary Reinstatement). 

Respondent contends that Complainant's return to workers' 

compensation status was non-retaliatory. Safety Director, 

David Wolfe, testified that an October 12, 1993, telephone call 

from nurse Andrea Antolick, informing him that Complainant 

refused to perform the activities of a functional capacity 

evaluation (FCE) on September 30, 1993, precipitated a decision 

on October 14, to return Kaczmarczyk to compensation status (Tr. 

254-55, 311-16) 2 • Respondent also contends that recurring 

reports from supervisors that Mr. Kaczmarczyk was not performing 

assigned duties led to this decision (Tr. 350). 

1 Complainant performed electrical work at Ellangowan 

(Tr. 27-28). Local 807 does not represent any electricians (Tr. 

173). 

2 A later report, not in Respondent's possession on 

October 15, 1993, stated that Mr. Kaczmarczyk completed 2 hours 

of testing. He did not complete the evaluation because he 

requested that testing be terminated due to increased pain and .blurred vision (Tr. 314-15, Exh. R-11). 

194 2 
Evaluation of the Evidence 

Pursuant to the procedural rules of the Commission, 

29 C.F.R.§ 2700.45(d), the issue in a temporary reinstatement 

hearing is limited to whether the miner's complaint was 

frivolously brought. The Secretary of Labor has the burden of 

proving that the complaint was not frivolous. Although .section 

105(c)(2) of the Statute and the Commission's rules indicate that 

it is frivolousness of the miner's complaint that is scrutinized 

in a temporary reinstatement proceeding, the legislative history 

of the Act and relevant case law indicates that it is the 

Secretary's decision to seek temporary reinstatement that is to 

be examined. Senate Report 95-181, 95th Cong., 1st Sess. (1977) 

at 36; Jim Walter Resources, Inc. v. Federal Mine Safety and 

Health Review Commission, 920 F.2d 738, 747 (11th Cir. 1990). 

The legislative history of the Act provides that the 

Secretary shall seek temporary reinstatement "[u]pon determining 

that the complaint appears to have merit." The Eleventh Circuit 

in Jim Walter Resources, Inc. v. FMSHRC. supra, concluded that 

"not frivolously brought" is indistinguishable from the 

"reasonable cause to believe" standard under the whistleblower 

provisions of the Surface Transportation Assistance Act 

920 F.2d 738, at 747. Further, that court equates "reasonable 

cause to believe" · with a criteria of "not insubstantial or 

frivolous" and "not clearly without merit" 920 F.2d 738, at 747 

and n. 9. I am ordering the temporary reinstatement of 

Mr. Kaczmarczyk because I conclude that the Secretary's decision 

is not frivolous and that it is possible, although far from 

certain, that the Secretary could prevail in a discrimination 

proceeding. 

The timing of Mr. Kaczmarczyk's return to worker 

compensation status, one day after his protected activities as an 

employee walkaround representative does provide some basis for 

concluding that the two events are related. Donovan v. Stafford 

Construction Co •• 732 F.2d 954, 960 (D. c. cir. 1984); Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2511 (November 1981). 

However, the nexus between these two events is rather weak. 

Although the October 1993 MSHA electrical inspection was 

initiated by an employee complaint, Kaczmarczyk did not file the 

complaint (Tr. 97-98/ 178). 

3 Although Foreman Vince Devine asked Kaczmarczyk who made 

the complaint that led to the October inspection, Kaczmarczyk 

told Devine it was not him (Tr. 100-105). There is no reason to 

believe Devine suspected it was Kaczmarczyk who complained about 

the presence of water near electrical components in the steam 

genny house (Tr. 16-17, 178-79). Devine was present during the 

inspection in which this concern was raised and Kaczmarczyk was 

not (Tr. 97, Secretary's exhibit 2). 

1943 
Additionally, there is nothing in this record to suggest 

that anything that Mr. Kaczmarczyk did as walkaround 

representative on October 4, 12, and 14, 1993, aroused 

Respondent's ire. Although Respondent received nine citations as 

a result of this inspection, there is no indication tha~ 

Complainant's conduct as a walkaround representative was 

responsible for any of these citations or that his acts. or 

omissions as an employee of Respondent were in any way - contributing factors to the citations (Tr. 277, 301). In 

summary, there is virtually nothing in the record to indicate 

that Respondent would have any reason to retaliate against 

Complainant for ·his role in the October 1993 inspection. 

Nevertheless, there is sufficient evidence suggesting 

generalized animus towards Kaczmarczyk's safety activities to 

meet the "not frivolous" standard in drawing a connection between 

these activities and his return to workers' compensation status. 

Mr. Wolfe was not happy to see Kaczmarczyk participating in the 

inspection on October 14, 1993, and challenged the necessity of 

his presence. In view of the fact that Michael Ploxa, President 

of UMWA Local 807, was also acting as employee walkaround 

representative, and the fact that other electricians were 

available, Wolfe considered Kaczmarczyk's participation 

unnecessary (Tr. 175-76, 308). 

Moreover, despite Respondent's contention that the 

October 1993 citations gave it no reason to retaliate against 

Mr. Kaczmarczyk, the record does provide a basis for inferring 

that the cumulative effect of MSHA inspections at the mine did 

create a degree of animus towards Complainant, which was perhaps 

rekindled by the October 1993 citations. Respondent contends 

that MSHA inspections and citations are common occurrences at its 

mine and that the October 1993 inspection was nothing out of the 

ordinary (Tr. 258-260). 

Nevertheless, something about Respondent's MSHA experience 

was clearly bothering Safety Director Wolfe when he participated 

in a grievance proceeding with Kaczmarczyk on October 18, 1993, 

concerning the latter's return to worker's compensation status. 

It is uncontroverted that Wolfe and Kaczmarczyk got into a heated 

argument over the reasons for this personnel action. It is also 

undisputed that during this argument Wolfe went into another 

room, obtained a stack of MSHA citations issued to Respondent 

and threw, or placed them on the table (Tr. 128-29, 191-93, 274-

75, 283-93). 

According to Kaczmarczyk and Jay Berger, the UMWA district 

representative at the grievance proceeding, Wolfe said \something 

to the effect that these citations were another reason;why 

Kaczmarczyk was being placed on compensation (Tr. 128-29, 191-

93). Wolfe's testimony is that the citations he placed on the 

table were issued in August 1992 and were largely the fault of 

19 44 
Mr. Kaczmarczyk (Tr. 274-278). Wolfe testified that he put the 

citations on the table "out of frustration (Tr. 275)," and to 

emphasize that Respondent would not get as many citations as it 

was recei ving if all its employees were capable of do~ng their 

jobs (Tr • 2 7 4-7 5) 4 • 

At a minimum, the record in this regard is inconsistent with 

Respondent' s contention that it received the October 1993 

citations with an air of equanimity 5 • The anger displayed at 

the October 18, 1993 grievance meeting with regard to MSHA 

activity, coupled with Mr. Wolfe's lack of enthusiasm for Mr. 

Kaczmarczyk's presence at the inspection of October 14, makes it 

impossible to reject out of hand the Secretary of Labor's 

assertions of safety-related animus towards Complainant. 

Evidence tending to rebut retaliation 

Given the evidence above, I find that it is conceivable that 

the Secretary of Labor could establish a prima f acie case of 

retaliation in a discrimination proceeding. In such a pro·ceeding 

the Secretary would have to establish 1) that Mr. Kaczmarczyk 

engaged in protected activity, and 2) that his return to workers' 

compensation was ~otivated in part by the protected activity. 

Sec. ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 

(October 1980), rev'd on other grounds sub nom. consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981) 6 • 

A mine operator may rebut the prima f acie case by showing 

that no protected activity occurred, or that the adverse action 

was in no part motivated .by the protected activity. The operator 

4 If Wolfe said, as Kaczmarczyk and Berger testified, that 

citations were part of the reason Kaczmarczyk was returned to 

workers' compensation, it is difficult to understand how the 

August 1992 citations would have led Respondent to effectuate 

this transfer 14 months later. Even accepting Wolfe's version, 

it is hard to grasp how August 1992 citations would be in any way 

relevant to Kaczmarczyk's ability to perform light duty work in 

October 1993. 

5 The October 1993 inspection was apparently the first time 

Respondent received as many as nine citations from an MSHA 

electrical inspection (Tr. 186). 

6 Although Respondent may not be required to provide light 

duty work to its employees, and may be entitled to trarisfer its 

employees from light duty to workers' compensation for :a variety 

of reasons, Section lOS(c) of the Federal Mine Safety and Health 

Act prohibits such a transfer if it is done in retaliation for 

activities protected by the Act. 

1945 
may also def end by proving that it would have taken the adverse 

action for the unprotected activities alone. 

Respondent's position is that Mr. Kaczmarczyk's return to 

compensation status was the result of a non-discriminat~ry 

application of its light-duty program. The decision to return 

complainant to compensation was made by General Manager 

Frank Derrick, in consultation with Safety Manager David Wolfe 

(Tr. 338, 344, 349-50). 

While both Wolfe and Derrick point to a number of instances 

in which Kaczmarczyk was unable to do work assigned to him while 

on light duty, they are able to conclusively establish only one 

which occurred in the two and a half months prior to the decision 

to return him to compensation (Tr. 66-67, 75-76, 203, 238, 322). · The record indicates that Complainant had been unable to do job 

assignments throughout his 21 months on light duty and does not 

conclusively establish non-retaliatory reasons for which the 

company made an issue of Kaczmarczyk's restricted abilities in 

October 1993. Indeed, the record indicates that Complainant was 

unable to do much more work in 1992 and during the previous 

winter than in the fall of 1993 {Tr. 222-23). 

Safety Director Wolfe does explain the timing of 

Complainant's return to compensation status as being due to the 

receipt of information on October 12, 1993, that Kaczmarczyk 

refused to take a functional capacity examination (FCE) on 

September 30, 1993 (Tr. 253-55, Exh. R-10). This is an event 

that may ultimately provide a basis for concluding that the 

Respondent transferred complainant to compensation status for 

non-retaliatory reasons. However, I conclude that the evidence 

in this regard is not so overwhelming that it makes the 

Secretary's case "frivolous." 

First of all, Mr. Derrick's testimony indicates that 

Kaczmarczyk's alleged refusal to take the FCE had little to do 

with Respondent's decision to put him back on workers' 

compensation (Tr. 349-50). Derrick characterized that 

information as "coincidental" to his decision {Tr. 350). 

Secondly, the Secretary has raised a legitimate issue regarding 

the extremely rapid response of Mr. Wolfe to this information 

(Tr. 311-316). 

The record shows that Mr. Wolfe received a call from nurse 

Antolick on October 12, reporting that Kaczmarczyk had refused to 

take the test {Tr. 311). Although Wolfe knew that Antolick had 

no first hand information regarding the FCE on September 30, he 

took her account at face value without checking the faats with 

either Complainant or the persons who actually administered the 

test (Tr. 312-16). Similarly, although Antolick suggested a 

meeting with Mr. Wolfe, the safety director acted upon the 

October 12 phone call without such a meeting (Tr. 313). 

1946 
Given the proximity in time to Complainant's protected 

activities, the Secretary's counsel's posed the following 

question which is not satisfactorily answered by Respondent. 

"What was the hurry after 21 months of him being on light-duty 

work? (Tr. 313)" The absence of a fully satisfactory answer 

contributes to my conclusion that the Secretary's decision to 

seek temporary reinstatement is "not frivolous." 

Conclusion 

Having concluded that the Secretary of Labor has met his 

burden of proving that his decision to seek temporary 

reinstatement is "not frivolous," I reiterate that the record a t 

this point indicates that Complainant's discrimination case is 

not well-supported. The evidence of animus towards Complainant' s 

protec ted a c tivities, although present, is very weak. There is 

considerable support for the proposition that Res ponde nt's l i ghtduty program was adminis tered in a non-discriminatory way in 

Kaczmarczyk's c ase (Tr. 24 6 , 264-66 , 336-37, 354-57). 

Moreover, General Manager Derrick's testimony that 

Complainant was put back on compensation because he was doing 

less than he was capable of doing is corroborated by other 

evidence in this record (Tr. 346-47, Exhs. R-6, R-10, R-11). One 

issue that the Secretary must address in the discrimination 

proceeding on this complaint is the duration of Respondent's 

obligation to keep Mr. Kac zmarczyk on light duty, if I rule in 

his favor. 

In light of the relative weakness of the Secretary's case, I 

order temporary reinstatement with the condition that the 

Secretary either file a discrimination complaint within 60 days 

of this decision or provide compelling evidence why it is unable 

to do so. Given the state of this record, it would be 

inequitable to require Respondent to temporarily reinstate 

Complainant for an indefinite period. 

Finally, as the purpose of temporary reinstatement is to 

render the complainant financially secure during the pendency of 

his discrimination case, Respondent may satisfy this order 

through the means of "economic reinstatement," Senate Report 95-

181, 95th Cong., 1st Sess. (1977) at 37, reprinted in the 

Legislative History of the Federal Mine Safety and Health Act of · 

1977, at page 625. Mr. Kaczmarczyk's position, including 

financial compensation and benefits, must be no worse than it 

would be had he not been placed on compensation status on 

October 18, 1993 7 • 

7 Respondent could not, for example, recall Complainant to 

work and require him to perform tasks which he is incapable of 

doing. 

19 4 7 
ORDER 

I hereby ORDER Respondent to reinstate William Kaczmarczyk 

immediately. The Secretary of Labor is ordered to file a 

discrimination complaint within 60 days of this deeisiop. 

Distribution: 

(}J{;~ Administrative Law Judge 

703-756-6210 

Martin J. Cerullo, Esq., Frumkin, Shralow & Cerullo, P. c., 

Second Street & Laurel Blvd., P. O. Box 500, Pottsville, PA 17901 

{Certified Mail) 

Stephen D. Turow, Esq., Office of the Solicitor, u. s. Department 

of Labor, 4015 Wilson Blvd., Suite 400, Arlington, VA 22203 

{Certified Mail) 

/jf 

1948 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 1 5 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Docket No. KENT 93-410 

A. C. No. 15-14959-03548 

BROKEN HILL MINING COMPANY, INC., 

Respondent 

Docket No. KENT 93-550 

A. C. No. 15-14959-03549 

Before: 

Docket No. KENT 93-633 

A. C. No. 15-14959-03550 

Mine No. 3 

Docket No. KENT 93-634 

A. C. No. 15-15637-03547 

Mine No. 1 

DECISION APPROVING SETTLEMENT 

Judge Weisberger 

These cases are before me upon a petition for assessment of 

civil penalty under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). Petitioner has filed a Joint 

Motion to Approve a Settlement agreement and to dismiss the case. 

A reduction in penalty from $1659 to $1496 is proposed. I have 

considered the representations and documentation submitted in 

this case, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in Section llO(i) of the 

Act. 

WHEREFORE, the Motion for Approval of Settlement is GRANTED, 

and it is ORDERED that Respondent pay a penalty of $1496 .within 

30 days of this Order. 

JR 

Avram Weisberger 

LL--~ Administrative Law 

1949 

Judge 
Distribution: 

Mary Sue Taylor, Esq., Office of the Solicitor, u. s. Department 

of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 

37215 (Certified Mail) 

Mr. Hobart Anderson, President, Broken Hill Mining Company, 

P.O. Box 989, Ashland, KY 41105 (Certified Mail) 

/efw 

1950 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1 0th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 1 6 1994 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

DONALD L. GREGORY, 

LOY D. PETERS, 

LOY D. PETERS, 

LOY D. PETERS, 

DONALD L. GREGORY, 

AND DARRYL ANDERSON, 

Complainant, 

v. 

THUNDER BASIN COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDINGS 

Docket No. WEST 92-279-D 

Docket No. WEST 92-280-D 

Docket No. WEST 93-204-D 

Docket No. WEST 94-392-D 

Black Thunder Mine 

DECISION APPROVING SETTLEMENT 

The parties have filed a stipulation of settlement resolving 

all of the above-sty.led discrimination complaints filed under 

§ 105(c) of the Act. I have reviewed the stipulation and 

conclude that it is consistent with the purposes of§ lOS(c). 

Therefore, it is ORDERED: 

1) that within 20 days of this order Respondent tender 

to Loy Peters, Donald Gregory and Darryl Anderson all 

sums due under this agreement and the waiver and 

release executed by the complainants and the Respondent 

in accordance with the terms thereof; 

2) Upon receipt of the sums noted above complainants 

waive permanent reinstatement and resign from their 

temporary positions; 

3) Respondent shall expunge from the employment record 

of each complainant any adverse references to their 

1951 
discharge . or any matter surrounding the walkaround 

designation or the reduction in force at Thunder Basin 

Coal Company; 

4) that within 30 days of this order Respondent shall 

pay a civil penalty to MSHA in the amount of $7,500. 

/l~~-~

~;-~-~chan ~ 

Administrative Law Judge 

703-756-6210 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. 

Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-

5716 (Certified Mail) 

Charles W. Newcom, Esq., SHERMAN & HOWARD, 633 17th St., Suite 

3000, Denver, CO 80202 {Certified Mail) 

Thomas F. Linn, Esq., Thunder Basin Coal Co., 555 17th St., Suite 

2000, Denver, CO 80202 {Certified Mail) 

/jf 

1952 
FEDERAL MrNE SAFETY AND HEALTH RBVrEW COMMrssroN 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5266/FAX (303) 844-5268 

SEP 2 o 1994 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BOYER READY MIX SAND & ROCK, 

INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 93-39-M 

A.C. No. 39-01377-05503 

North Pit 

DEcrsroN APPROVING SETTLEMENT APTER REMAND 

Before: Judqe cetti 

On August 5, .. 1994, the Commission remanded the above penalty 

case to the unders ~gned to determine whether the Order of Default 

issued June 28, 199·4, was warranted. Respondent in its request 

for reconsideration alleged there had been on-going settlement 

discussions with the attorneys representing the Secretary of 

Labor and that he inadvertently neglected to respond to the show 

cause order. 

~he parties now have completed their settlement discussions 

and have reached an amicable settlement of all issues. Petitioner on August 23, 1994, filed a motion to ·approve the settlement 

agreement pursuant to 29 C.F.R. § 2700.31 and to order payment of 

the amended proposed penalties in the sum of $2,938.00 within 40 

days of the filing of an order approving settlement. 

Under the proffered settlement there is a reduction of the 

initial proposed penalties as follows: 

Citation No. 

3909396 

3909398 

3909400 

3909401 

3909402 

3909403 

3909404 

3909405 

3909406 

· Initial 

Proposed 

Penalty 

$ 252.00 

595.00 

362.00 

595.00 

147.00 

168.00 

111.00 

362.00 

119.00 

1953 

Amended 

Proposed 

Penalty 

$ 200.00 

400.00 

290.00 

475.00 

115.00 

134.00 

89.00 

290.00 

50.00 
3909407 168.00 50.00 

3909408 119.00 95.00 

3909409 102.00 50.00 

3909411 2,816.00 500.00 

3909412 252.00 200.00 

TOTAL $2,938.00 

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

is appropriate under the criteria set forth in Section llO(i) of 

the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED; 

and Respondent is ORDERED TO PAY to the Secretary of Labor the 

approved civil penalties in the sum of $2,938.00 within 40 days 

of this decision. Upon receipt of payment this case is 

DISMISSED. 

-(b;~t:' &/± 

Administrative Law Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716 

Bill B. Boyer, President, BOYER READY MIX SANO & ROCK, INC., 

Rural Route 2, Box 51A, Hawarden, IA 51023 

sh 

1954 
FEDERAL MINE SAFETY Afi.D HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

6203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 3 1994. 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WALKER STONE COMPANY, INC., 

Respondent 

DECISION 

Docket No. CENT 94-54-M 

A. C. No. 14-01467-05510 

Portable No. 1 

Appearances: Tambra Leonard, Esq., Office of the Solicitor, 

u. S. Department of Labor, Denver, Colorado, 

for the Secretary; 

Keith R. Henry, Esq., Weary, Davis, Henry, 

Struebing & Troup, Junction city, Kansas, for 

Respondent. 

Before: Judge Maurer 

This proceeding concerns a proposal for assessment of a 

civil penalty 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), seeking civil penalty 

assessments for four alleged violations of certain mandatory 

safety standards found in Part 56 of Title 30, Code of Federal 

Regulations. An evidentiary hearing in these matters was held on 

June 2, 1994, in Topeka, Kansas. Subsequently, both parties 

filed proposed findings of fact and conclusions of law which I 

have considered in making this decision. 

STIPULA'?IONS 

The parties have agreed to the following stipulation's, which 

I accept (Tr. 4-5): 

1. Walker Stone Company, Inc., is engaged in mining and 

selling of stone in the United States, and its mining operations 

affect interstate commerce. 

2. Walker Stone company, Inc., is the owner and operator of 

the Portable No. 1 Mine, MSHA ID No. 14-01467. 

3. Walker Stone Company, Inc., is subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. sections 801 et seq. (the Act). 

1955 
4. The administrative law judge has jurisdiction in this 

matter. 

5. The subject citations were properly served by a duly 

authorized representative of the Secretary upon ari agent of 

respondent on the dates and places stated therein and may be 

admitted into evidence for the purpose of establishing their 

issuance and not for the truthfulness or relevancy of any 

statements asserted therein. 

6. The exhibits to be offered by respondent and the 

Secretary are stipulated to be authentic, but no stipulation is 

made as to the relevance or the truth of the matters asserted 

therein. 

7. The proposed penalty will not affect respondent's 

ability to continue in business. 

8. The operator demonstrated good faith in abating the 

violations. 

9. Walker Stone Company, Inc., is a small mine operator 

with 94,437 hours worked in 1992. 

FINDINGS AND CONCLUSIONS 

Citation No. 4336867 was issued on June 21, 1993, by MSHA 

Inspector Dean Williams, pursuant to section 104(a) of the Mine 

Act and alleges a violation of the mandatory standard at 

30 C.F.R. § 56.14132(b) (2) 1: 

The homemade wheel mounted device on the Wabco 

haul truck, Company No. 359 AF, reportedly was utilized 

as a reverse signal alarm. However, the bell type 

device worked on both forward and reverse directions. 

The device was not audible above the surrounding noise 

level of the plant at the crusher and other areas to 

attract attention of a person that may be in the area 

when the truck was moving in a reverse direction. 

Routine backing is required at the crusher feeder and 

the pit loading area. 

on this occasion, Inspector Williams, accompanied by an 

inspector trainee, Curtis Dement, observed a Wabco haul truck, 

which is a self-propelled piece of mobile equipment with an 

1

/ 30 C.F.R. § 56.14132(b) (2) provides as follows: 

shall be audible above the surrounding noise level. 

1956 

Alarms 
obstructed view to the rear. A backup alarm is required for this 

vehicle and one was provided by the respondent. 

One method of complying with 30 C.F.R. § 56.14132(b) is set 

out in subsection (b) (1) (ii) as follows: "a wheel-mounted bell 

alarm which sounds at least once for each three feet of reverse 

movement." 

Inspector Williams found such a home-made alarm device 

mounted on one of the rear wheels of the truck. In fact, a 

similar device was also on the other rear wheel. It was 

constructed out of a hollow metal canister sealed on both ends 

and into which a metal ball had been placed. The sound is 

created when the metal ball rolls from end to end of the metal 

canister as the wheel rotates (forwards or backwards). 

As a test, the inspector had the driver back the truck up so 

he could determine if the sound coming from the device could be 

heard above the surrounding noise level. Inspector Williams was 

unable to hear anything from the back of the truck. From the 

side, he could only hear the alarm faintly over the noise of the 

truck. However, the inspector admits he has some unquantified 

hearing loss. Inspector Dement, who at the time was a trainee, 

also testified. H~ stated that he was present with Williams when 

the truck was backed up for the test. He further testified that 

he could hear it, but, in his opinion, it was not loud enough. 

Mr. David S. Walker, the owner/operator of the Walker Stone 

Company, also testified. He produced in court one of the backup 

alarms that was constructed locally and attached to the rear 

wheels of the truck as the inspector found it. These alarms were 

originally installed on the truck in 1979 to abate a previous 

citation. They have been on the truck since the summer of 1979, 

and have passed muster with every MSHA inspector including 

Inspector Williams until the citation at bar was issued in June 

of 1993. Mr. Walker also testified that he could hear the alarm 

over the surrounding noise and had done so numerous times over 

the years while standing in the quarry. 

My observation in the courtroom was that the device was of 

substantial construction and quite loud. But of course I realize 

the difference between sounding an alarm inside a courtroom 

versus a noisy outside work environment, and therefore find 

little relevance in the courtroom demonstration. 

The only issue involved in this citation is whether or not 

the alarm was audible above the surrounding noise level. It is a 

very subjective standard. No specific "loudness" is required. 

19 57 
Was it audible? Two of the three witnesses say that they could 

hear it, albeit Mr. Dement opined that it should have been 

louder. The third, Inspector Williams, although hearing impaired 

to some ex~ent, could hear it from the side, but not the back. 

There is no specific standard beyond "audible above the 

surrounding noise level." 

My interpretation is that if the alarm meets that standard, 

even if only "faintly," it still complies with the mandatory standard and there is no violation. Citation No. 4336867 will 

therefore be vacated herein. 

Citation No. 4336871 was issued on June 21, 1993, by MSHA 

Inspector Dean Williams, pursuant to section 104(a) of the Mine 

Act and also alleges a violation of the mandatory standard found 

at 30 C.F.R. § 56 .14132 (b) (2) and charges a s follows: 

The automatic reverse activated signal alarm 

provided on the Komatsu front-end loader was not 

audible above the surrounding noise level. The alarm 

could not be heard over the loader noise during loading operations and would not attract attention to persons 

that may be in the area when the loader was moving in a 

reverse 4irection. The loader had an obstructed view 

to the rear and routine backing was required while 

loading trucks at the quarry pit. 

Inspector Williams and Dement also observed a Komatsu frontend loader loading dump trucks on this same date. The Komatsu 

front-end loader is a piece of mobile equipment that is selfpropelled and the operator has an obstructed view to the rear. 

Approaching the vehicle they got to within 30 feet of it before 

they could hear the sound of the reverse alarm (an electrical 

type beeper) and then it was very weak. In their opinion, it was 

not sufficiently audible to be heard over the surrounding noise 

level by persons working in the area. However, they heard it. 

As with the previous citation, there was a working backup 

alarm that they cou·ld hear; it just was not loud enough in the 

opinion of the inspectors. It is either audible or it is not 

audible above the surrounding noise level. If it is not, its a 

violation, if it is, it is not a violation because there is no 

specific standard on the books beyond that. It is basic hornbook 

law that the government must notify the operator what is required 

in order to enforce a regulation against it. 

Accordingly, Citation No. 4336871 will be vacated herein. 

19 58 
citation No. 4336873 was issued on June 22, 1993, by MSHA 

Inspector Dean Williams, pursuant to section 104(a) of the Mine 

Act and alleges a violation of the mandatory standard found at 

30 C.F.R. §56.14132(a} 2 and charges as follows: 

The service horn on the Wabco end dump truck, Company 

No. 359 AF was not maintained in functional condition. 

The horn is a safety feature on mobile equipment to 

warn perso.ns in the area when the truck starting motion 

and to attract attention of other equipment operators 

to help prevent a collision. The truck was observed 

hauling shotrock from the quarry pit to the primary 

crusher. 

The inspector found the horn inoperable, not functional . Respondent stipulates that the said horn was not functional. The 

standard states that the horn "shall be maintained in functional 

condition." This clearly is a violation of the cited standard 

and it will be affirmed. The proposed penalty of $50 will be 

assessed. 

With regard to its Wabco haul truck, respondent contends 

that Citation No. 4336873 (service horn) and Citation No . 4336867 

(back-up alarm) along with three unspecified others that were 

issued in June of 1993, were multiplicative in nature. 

Respondent implies at least that MSHA is simply running up the 

citation count at his expense, when all that is actually involved 

is the serviceability of a single vehicle. I note, however, that 

the service horn and the back-up alarm are· on the vehicle to 

address different hazards. The devices themselves are not 

duplicative and therefore separate civil penalties are 

appropriately assessed when both devices on one vehicle are not 

working. In this particular case, however, this has become 

somewhat of a moot point since I am going to vacate Citation 

No. 4336867 in this decision. 

Citation No. 4336878 was issued on June 22, 1993, by MSHA 

Inspector Dean Williams, pursuant to section 104(a) of the Mine 

2/ 30 C.F.R. S 56.14132(a} provides as follows: Manuallyoperated horns or other audible warning devices provided on 

self-propelled mobile equipment as a safety feature shall be 

maintained in functional condition. 

1959 
Act and alleges a violation of the mandatory standard found at 

30 C.F . R. § 56.93003 and charges as follows: 

The elevated truck weight scales was not equipped 

with a guard rail along the outer edge on the south 

side. The travelway across the scales was 

approximately 3 1/2 feet (1.1 meter) above ground level 

and 35 feet long by 12 feet wide. 

Williams and Dement also inspected the scale house . There 

they observed the elevated truck weight scales. Trucks would 

drive up onto the scales to be weighed. They observed that the re 

was no berm or guardrail on the south edge of the elevated scales 

as depicted in Exhibit No. P-3. The scale was approximately 

12 feet wide and 35 feet long. The inspector determined that the 

types of vehicles that would drive onto the scales would 

generally range in width from 8 to 9 feet . Along the south edge, 

a 3.5 foot vertical drop-off existed along the edge of the scale. 

The inspector determined that the drop-off was of a sufficient 

depth so that a vehicle would overturn if it went over the south 

edge. There were concrete blocks bordering the scale, and 

although the scale might sink a few inches when a truck drove 

onto it, the distance between the scale and the concrete blocks 

would not have .,kept a truck from going over the side. There was 

also a hazard to a passenger of the truck alighting upon the 

narrow area of the scale at the side of the truck. The inspector 

determined that it was unlikely that the hazard would result in 

an injury. However, he determined that if an injury did result 

from the hazard, that the injury or illness that could be 

reasonably expected would be lost workdays or restricted duty. 

Accordingly, I find the violation to be proven by a 

preponderance of the evidence in the record and the instant 

citation will be affirmed. Upon consideration of the various 

penalty assessment factors contained in section llO(i) of the 

Mine Act, I find a penalty of $50 is proper and reasonable and 

will be assessed herein. 

3

/ 30 C. F.R. § 56.9300 provides, in pertinent part, as follows: 

(a) Berms or guardrails shall be provided and maintained on the 

banks of roadways where a drop-off exists of sufficient grade or 

depth to cause a vehicle to overturn or endanger persons in 

equipment. 

1960 
ORDER 

1. Citation Nos. 4336867 and 4336871 ARE VACATED. 

2. Citation Nos. 4336873 and 4336878 ARE APPXRMED. 

3. Respondent SHALL PAY to the Secretary of Labor within 

30 days from the date of issuance hereof the penalties hereinabove assessed in the total sum of $100. 

Law Judge 

Distribution: 

Tambra Leonard, Esq., Office of the Solicitor, u. s. Department 

of Labor, 1585 Federal Office Building, 1961 Stout Street, 

Denver, co 80294 (Certified Mail) 

Keith R. Henry, Esq., Weary, Davis, Henry, Struebing & Troup, 

819 Washington, P.. o. Box 187 , Junction city, KS 66441 

(Certified Mail) 

dcp 

1~61 
PBDBRAL llDIB SUBTY AllD BDLTJI RBVJ:BW COJOD:SSI:OB 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

(303) 844-5267/FAX (303) 844-5268 

SEP 2 6 1994 

FELIX T. CARRASCO, 

Complainant 

. . DISCRIMINATION PROCEEDING 

Docket No. CENT 94-40-DM 

v. 

SC MD 93-05 

EDDY POTASH, INCORPORATED, 

Respondent Eddy Potash Mine 

DECISION 

Appearances: E. Justin Pennington, Esq., Albuquerque, 

New Mexico, 

for Complainant; 

w. T. Martin, Jr., Esq., Carlsbad, New Mexico 

for Respondent. 

Before: Judqe Morris 

This case is based on a discrimination complaint filed 

pursuant to Section 105(c) of·the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 815(c), (the "Act"). 

After notice to the parties, a hearing commenced on August 9, 1994, in Carlsbad, New Mexico. 

At the hearing the parties reached an amicable settlement. 

Further, counsel recited the terms of the settlement and 

both parties requested that the transcript of the hearing be 

sealed and the case dismissed. 

The Judge finds the settlement is in furtherance of the Mine 

Act. 

Accordingly, the transcript of the proceedings is hereby 

sealed and the case is DISMISSED. 

au.__ 

~~~n~ 

1962 

Law Judge 
Distribution: 

E. Justin Pennington, Esq., 3700 Rio Grande Boulevard, NW, suite 

2, Albuquerque, NM 87107-3042 {Certified Mail) 

W.T. Martin, Jr., Esq., 509 West Pierce Street, P.O. Box 2168, 

Carlsbad, NM 88221-2168 {Certified Mail) 

sh 

1963 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 7 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATI ON (MSHA} , Petitioner 

v. 

MANALAPAN MINI NG COMPANY, 

Respondent 

Docket No . KENT 94-136 

A. C. No. 15-16733-03555 

Docket No . KENT 94-146 

A. C. No . 15-16733-03556 

Mine No. 7 

Docket No. KENT 94-145 

A. C. No. 15-16318-03586 

Docket No . KENT 94-415 

A. C. No . 15-16318-03588 

Docket No . KENT 94-439 

A. C. No. 15-16318-03589 

Mine No . 6 

Docket No . KENT 94-338 

A. C. No. 15-05423-03746 

: Mine No. 1 

DECISION APPROVING SETTLEMENT 

Appearances: Joseph B. Luckett, Esq . , Office of the Solicitor, 

u. s. Department of Labor, Nashville, Tennessee, 

for the Secretary; 

Susan c. Lawson, Esq., Buttermore, Turner, 

Lawson & Boggs, P . S .C., Harlan , Kentucky , for 

Respondent. 

Before : Judge Maurer 

These cases are before me upon a petition for assessment of 

civil penalty under section 105(d} of the Federal Mine Safety and 

Health Act of 1977 (the Act). An evidentiary hearing in these 

matters was convened on July 26, 1994, in London, Kentucky. At 

that hearing, the parties filed a motion to approve a settlement 

agreement and to dismiss these cases. 

1964 
The citations, initial assessments, and the proposed 

settlement amounts are as follows: 

PROPO&ED lROPOSID 

CITATION NO. ASSESSMENT SBTTLIKENT 

KENT 94-338 

4248498 $ 903 $ 903 

4242272 903 so• 

KENT 94-145 

9885316 2384 1962 

4257751 690 690 

4257752 690 50* 

4257755 690 50* 

4257756 690 50* 

4257757 690 50* 

4257758 690 50* 

4039786 267 50 

4039787 288 50 

4039789 690 50* 

40397.90 690 50* 

40397'91 793 50* 

KENT 94-415 

2793770 267 50 

KENT 94-136 

4248460 309 309** 

4248461 309 309** 

4248463 506 506** 

4248464 362 362** 

4248465 362 362** 

4248466 309 309** 

KENT 94-146 

4248425 1100 1100 

4040098 5800 3480 

4248496 903 903 

KENT 94-439 

3836067 8300 4150 

TOTAL $29,585 $15,945 

* Citation modified to delete "S&S" special findings. 

** Civil penalties already paid by respondent. 

1965 
I have considered the representations and documentation submitted 

in these cases, and I conclude that the proffered settlement is 

appropriate under the criteria set forth in section llO(i} of the 

Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, 

and respondent having paid $2157 of the penalty, it is ORDERED 

that it pay the remaining sum of $13,788 within 30 days of this 

order. 

Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, 

U. s. Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215 

Richard D. Cohelia, Safety Director, Manalapan Mining Company, 

Inc., P. o. Bo~ 311, Brookside, KY 40801-0311 

Susan c. Lawson, Esq., Buttermore, Turner, Lawson & Boggs, P.s.c., 111 South First Street, P. o. Box 935, Harlan, KY 408 31-

0935 

dcp 

1966 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 7 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 94-162-M 

A. C. No. 02-02108-05517 

v. 

ELMER JAMES NICHOLSON, 

EMPLOYED BY A-ROCK INC., 

Respondent 

Docket No. WEST 94-271-M 

A. C. No. 02-02108-05519 A 

Gray Mountain Pit 

Appearances: 

Before: 

DECISION 

Susan Gillett, Esq., Office of the Solicitor, 

U.S. Department of Labor, San Francisco, 

California for Petitioner; 

Gerald W. Nabours, Esq., Flagstaff, Arizona for 

Res.pondent. 

Judge Weisberger 

Statement of the case 

These cases, consolidated for hearing, involve a Petition 

for Assessment of Civil Penalty.seeking a civil penalty from 

Elmer James Nicholson pursuant to Section llO(c) of the Federal 

Mine Safety and Health Act of 1977 ("the Act"), and a Proposal 

for Assessment of Civil penalty alleging a violation by A-Rock 

Incorporated ("A-Rock") of 30 C.F.R. § 56.14101(a) (3). Also, 

alleged is a violation of Section 104(b) of the Act. Pursuant 

to notice, these cases were heard in Flagstaff, Arizona on 

August 15, 1994. Respondent filed a Post Trial Memorandum on 

September 16, 1994. On September 20, 1994, Petitioner filed a 

Post-Trial Brief. 

Findings of Fact and Discussion 

1. Whether A-Rock Incorporated is subject to the Act. 

A-Rock Incorporated, operates the Gray Mountain Pit, 

a sand and gravel operation, located in Coconino County, 

Arizona. The material produced at the subject site is sold 

intrastate, primarily to customers within 100 miles of the site. 

Daryl Merick, A-Rock's general manager, indicated, in essence, 

that he is not aware of any out of state suppliers who compete 

with A-Rock. According to Merick, none of the materials 

purchased from A-Rock are used outside the state of Arizona. 

A-Rock argues, in essence, that it is not involved in interstate 

1967 
commerce, and that its products and operations do not affect 

commerce. 

Section 4 of the Act provides that each mine " • • the 

operations or products of which affect commerce," shall be 

subject to the Act . 

In Jerry Ike Harless Towing, Inc., and Harless, Inc., (16 

FMSHRC 683 (April 11, 1994)), the Commission analyzed the scope 

of the Commerce Clause of the Constitution as follows: 

The Commerce Clause of the Constitution has been broadly 

construed for over 50 years. Commercial activity that is 

purely intrastate in character may be regulated by Congress 

under the Commerce Clause, where the activity, combined with 

like conduct by others similarly situated, affects commerce 

among the states. Fry v. United States, 421 U. S. 542, 547 

(1975); Wickard v. Filburn, 317 U.S. 111 (1942) (growing 

wheat solely for consumption on the farm on which it is 

grown affects interstate commerce) . Congress intended to 

exercise its authority to regulate interstate commerce to 

the "maximum extent feasible" when it enacted Section 4 of 

the Mine Act. Marshall v. Kraynak, 604 F.2d 231, 232 (3d 

Cir. 1979), cert. denied 444 U.S . 1014 (1980); United States 

v. Lake, 985 F . 2d 265, 267-69 (6th Cir. 1993). In Lake, the 

mine operator sold all its coal locally and purchased mining 

supplies from a local dealer. 985 F.2d at 269. Nevertheless, the court held that the operator was engaged in 

interstate commerce because "such small scale efforts, when 

combined with others, could influence interstate coal 

pricing and demand." Id. Harless, supra at 686. 

The front-end loader at issue in these proceedings was built 

outside the state of Arizona. Also, A-Rock has purchased parts 

for its caterpillar equipment that have been produced outside 

the United States. Further, A-Rock's products were used by a 

customer in the construction of Highway No. 89 in Arizona. I 

take administrative notice of the fact that Highway No. 89 goes 

from Arizona to Montana. Based on these factors I find, under 

the broad principles enunciated by the Commission Harless Towing, 

supra, and based upon the authority of the Sixth Circuit in Lake, 

supra, that A-Rock's operations did affect interstate commerce. 

2. Violation of 30 C.F.R. § 56.14101(a) (3) 

On March 23, 1993, Pete Herrera, an MSHA inspector, 

inspected the subject site. He observed a 950-B front-end loader 

in the crushing area. Herrera asked the front-end loader 

operator, Jerry Semallie, whether the brakes were operational, 

and the latter said that they were not. Herrera asked Semallie 

1968 
to operate the loader in a forward direction, and gave a sign for 

him to hit the brakes. According to Herrera, when the service 

brakes were applied, the loader continued forward and "never 

slowed down." (Tr. 32) . Semallie testified that when the brakes 

are applied, initially there is some resistance, but the 

resistance fades away. Herrera issued a citation alleging a 

violation of 30 C.·F.R. § 56.14101(a) (3) which provides that "All 

braking systems installed on the equipment shall be maintained in 

functional condition." The testimony of Herrera regarding his 

observation of the functioning of the service brakes on the 

front-end loader was not impeached or contradicted. 1 

Accordingly, based upon his testimony I find that A-Rock did 

violate Section 56.1410l(a) (3), supra. 2 

3. Significant and Substantial 

In normal operations the front-end loader is driven to 

various areas on the site where it must come to a stop, and 

either load or unload materials. In this aspect of its 

operations, the loader must stop within dumping and loading 

distances of stock piles of gravel, a hopper, and haul trucks. 

Also, in normal operations, the loader travels down an incline 

to the washer. .According to Herrera, in normal operations 

1 I also note that the violation was abated after the 

hydraulic cylinders were rebuilt, and all disc pads and the 

cylinders for the calipers were replaced. 

2 In essence, it appears to be A-Rock's· position, inter 

alia, that it has not been established that a violation of 

Section 14103(a) (3) supra, occurred because Herrera did not 

(1) test the brakes pursuant to 30 C.F.R. § 56.14101(b) (1) or 

(2) give A-Rock the option, pursuant to Section 14101(b) (1) 

supra, of removing the equipment from service. 

While it is true that Herrera did not test the brakes in 

spite of his conclusion that the service brake system did not 

function as required, A-Rock is not relieved of its responsibilities to comply with Section 56 . 14101(a) supra. (ConcoWestern Stone Co., 13 FMSHRC 1908 (December 1991)) (Judge 

Maurer)). To hold, as apparently being argued by A-Rock, that 

Section 56.14101(a) is not violated in absence of proof that the 

vehicle in question had been tested or removed pursuant to 

Section 56.1410l(b), would render meaningless the plain language 

of Section 56.1410l(a) which provides that the truck in question 

"shall be equipped with a service brake system capable of 

stopping and holding the equipment with its typical load on the 

maximum grade of travel." 

1969 
Ferlin Huskie, the foreman at the site, "walks the area." 

(Tr. 34). Also, other vehicles are driven in the area. 

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), the Commission stated further as follows: 

We have explained further that the third element of 

the Mathies formula "requires that the Secretary 

establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there 

is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (August 1984). 

Considering the above guidelines set forth in U.S. Steel, 

supra, and the fact that in normal operations the front-end 

loader in issue operates on an incline, and must be able to stop 

so as not to collide with other vehicles and equipment, I 

conclude that the violation was significant and substantial. 

4. Unwarrantable Failure 

In essence, Semallie indicated that the brakes on the 

loader at issue had not been working for "probably" (Tr. 73) a 

few months prior to March 23, when the vehicle was cited. He 

indicated that he had told Ferlin Huskie, the foreman at the Gray 

Mountain Pit, that the brakes were not working. Huskie confirmed 

that Semallie had informed him about the condition of the brakes. 

He indicated that the brakes had been bad for almost a month 

prior to the time they were cited on March 23. Huskie indicated 

that he did not have any authority to get the brakes fixed. He 

indicated that approximately a month prior to the time the 

vehicle was cited, he had informed Elmer James Nicholson, the 

A-Rock superintendent, that the brakes were not in good 

condition. 

1970 
In essence, Nicholson indicated that when the loader was 

cited, in March 1993, he was aware that the brakes were not 

working properly, and this had been a problem "for quite 

sometime." (Tr. 108). He indicated that there were problems 

with the brakes at various times over a period of months. He 

indicated that he was not sure when he was informed about the 

problems with the brakes. However, according to Nicholson, 

when he was informed about the problems with the brakes, he 

went to Brian Waghorn, the mechanic, "to do something about it." 

(Tr. 112). Nicholson said that on "numerous occasions", Waghorn 

worked on the cylinder that was leaking fuel, and the caliper. 

(Tr. 123) . Nicholson indicated that he followed up with Waghorn 

who indicated that the brakes were working "at that time." 

(Tr. 113). Nicholson said that he thought the brakes were 

in good repair. He indicated, in response to questioning by 

A-Rock's counsel, that after he referred the matter to Waghorn, 

he did not "hear again that there were any problems with the 

brakes before March 23, 1993." (Tr. 119). 

I find that A-Rock's agents knew, for about a month prior to 

March 23, 1993, that there were problems with the brakes on the 

loader. In spite of this knowledge, the loader was continued in 

operation. Nicholson indicated that he thought that the brakes 

were in good repqir, as he had referred the matter to the 

mechanic, and followed up with him. However the mechanic, 

Waghorn, did not testify. Nor were any repair records proffered 

in evidence. It thus is not possible to make any findings 

regarding any specific repairs that had been made to the brakes, 

and when these repairs had been done. I find that the violation 

herein resulted from A-Rock's aggravated conduct, and thus was 

the result of its unwarrantable failure. (See, Emery Mining 

Corp., 9 FMSHRC 1997 (1987)). 

5. Violation of Section llO(c) of the Act 

In Kenny Richardson, 3 FMSHRC 8 (1981), aff'd 689 F.2d 632 

(6th Cir. 1982), cert. den., 461 U.S. 928 (1984), the Commission 

reviewed the legislative history of the term "knowingly" as used 

in Section 109(c) of the Federal Mine Safety and Health Act of 

1969, whose exact language was continued in Section llO(c) of the 

1977 Act, and held that the term means "knowing or having reason 

to know," (Kenny Richardson, supra, at 16). Specifically, the 

Commission stated as follows: "If a person in a position to 

protect employee safety and health fails to act on the basis of 

information that gives him knowledge or reason to know of the 

existence of a violative condition, he has acted knowingly and in 

a manner contrary to the remedial nature of the statute." Kenny 

Richardson, supra, at 16. 

1971 
I find that the record establishes that Huskie had informed 

Nicholson approximately a month prior to the date the loader was 

cited, regarding the problems with the brakes. I find 

Nicholson.' s testimony inadequate to establish that, after he 

became aware of the problems with the brakes, and prior to the 

time the brakes were cited, he took action to have the brakes 

repaired, and ensured that the brakes were repaired. Nor is 

there any other evidence of record to establish the same. Hence, 

I find that it has been established that Nicholson violated 

Section llO{c) of the Act. 

6. Violation of Section 104(b) of the Act. 

In the initial order issued to A-Rock, Herrera indicated 

that termination of the cited condition was due March 26, 1993. 

On August 26, 1993, MSHA inspector David F. Estrada, inspected 

the front-end loader at issue. He observed that the parking 

brake was defective, and could not hold the loader when stopped. 

He issued an order under Section 104(b) of the Act which, as 

pertinent, provides that if in a follow-up inspection it is found 

"· .. that a violation described in a citation issued pursuant 

to Subsection (a) has not been totally abated within the period 

of time as originally fixed there or subsequently extended, 11 , the inspector shall issue a withdrawal order. 

The original order alleges that the "brakes" had not been 

maintained in functional condition. Specifically, it alleges as 

follows "the loader would not stop when tested on level ground." 

The record supports a conclusion that the service brakes are a 

different system from the parking brakes. The former are used to 

stop the vehicle, and the lat'ter are used to hold a vehicle 

stationary once it has come to a stop. According to Nicholson, 

at some time subsequent to the issuance of the initial citation, 

the hydraulic cylinders where rebuilt, and the discs, cylinders 

for the calipers, and pads were all replaced. Estrada indicated 

that he found the service brakes to be functioning when he 

inspected the vehicle on August 26, 1993. Thus, I find that it 

has not been established that, on August 26, 1993, when inspected 

by Estrada, the violation described in the initial citation had 

not been totally abated. Thus, I conclude the Section 104(b) 

shall be dismissed. 

7. Penalty 

I find that a penalty of $5,000 is appropriate for the 

violation of 30 C.F.R. § 56.1410l{a) (3), and that a penalty of 

$3,000 is appropriate for the violation by Nicholson of Section 

llO(c) of the Act. 

1972 
ORDER 

It is Ordered as follows: 

1. Order No. 4124514 shall be dismissed. 

2. A-Rock, Incorporated shall, within thirty (30) days of 

this decision, pay a civil penalty of $5,000 for the 

violation of 30 C.F.R. § 56.14101(a) (3). 

3. Elmer James Nicholson shall pay a civil penalty of 

$3,000 within thirty (30) days of this decision. 

~ Avram Weisberger 

Administrative Law Judge 

Distribution: 

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

Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 94105 

(Certified Mail) 

Gerald w. Nabours, Esq., 10 E. Dale Street, Flagstaff, AZ 86001 

(Certified Mail) 

/efw 

1973 
OFFICE Of AmlUIISTRATIVE LAW .u>GES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIICE 

FALLS CllJtCK, VIRGINIA 22041 

SEP 2 8 1994 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

JIINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) I 

Petitioner 

v . 

BOB & TOM COAL COMPANY, INC., 

Respondent 

. . 

: 

. . 

. . 

Docket No. KENT 94-116 

A.C. No. 15-16927-03541 

: No. 6 Mine . . 

. . DECISION 

Appearances: 

Before : 

Mary Sue Taylor, Esq. , Office of the Solicitor, 

U. S. Department of Labor, Nashville, Tennessee, 

for the Petitioner. 

Judge Barbour 

In this proceeding the Secretary, on behalf of the Mine 

Safety and Health Administration (MSHA) and pursuant to 

Section 105 of the Federal Mine Safety and Health Act of 1977 

(Mine Act or Act), filed a petition for assessment of civil 

penalties against Bob & Tom Coal Company, Inc. (Bob & Tom). The 

Secretary alleged that in eight instances the company violated 

mandatory safety standards for underground coal mines. (The 

standards are found in Title 30, Part 75 of the Code of Federal 

Regulations (C.F.R.).) The Secretary further alleged that the 

violations were significant and substantial (S&S) contributions 

to mine safety hazards and that they occurred at Bob & Tom's 

No . 6 Mine, an underground bituminous coal mine located in 

Harlan County, Kentucky. 

Joe Hensley, President of Bob & Tom, filed a timely answer 

on the company's behalf in which the company challenged various 

aspects of the Secretary's petition as it related to each alleged 

vi olation. Following the issuance of a prehearing order and the 

parties' responses thereto, the matter was noticed for hearing on 

June 7, 1994, in Middlesboro, Kentucky. 

The hearing was convened as scheduled and counsel for the 

secretary entered her appearance. Ho person appeared on behalf 

of Bob & Tom. (The notice of hearing dated April 19, 1994, was 

.arved on Mr. Hensley by certified mail. The return receipt 

indicates that it was received on April 25, 1994.) 

At my request, counsel for the Secretary described her 

contacts with the representatives of Bob & Tom. She stated 

that during the week prior to the hearing she twice called 

1974 
Hensley and both times was told he was not in the office. She 

left messages for Hensley to call her, but her calls were not 

returned (Tr. 6-7). 

The day prior to the heari ng, counsel received a telephone 

call from David Williams, an engineer for Bob & Tom. Williams 

told counsel that the "meeting" on June 7 would have to be 

canceled. Counsel stated that she told Williams it was "probably 

too late," that he should appear at the hearing and that if he 

failed to appear the company could be defaulted (Tr. 7-8) . 

Noting that the notice of the specific site for the hearing 

had been sent by facsimile copy and by certified mail to the 

parties on June 2 , 1994, I recessed the hearing while counsel 

attempted to telephone a representative of the company (Tr. 9). 

Forty five minutes later counsel reported that the person who 

answered the telephone told her that neither Hensley nor Williams 

would be at the mine office during the day. She also indicated 

that she had checked with her office and that no messages had 

been left for her there (Tr. 10-11). In addition, I too placed a 

telephone call to my off ice and was advised that no one from the 

company had called for me (Tr. 11) . 

I stated that the Commission and the Secretary had gone 

to considerable expense to prepare for the hearing and that a 

party's unexplained failure to appear at a duly noticed hearing 

indicated contempt for the Act in general and the Commission's 

hearing process in particular. I further stated my belief that 

such contumacious conduct undermined the ability of the Act to 

provide miners with more effective protection against hazardous 

conditions and practices. Finally, I requested that counsel 

present her case in full so that I might have the benefit of a 

complete record (Tr. 12-13). 

THE NO. 6 MINE and BOB & TOM 

Jim Langley, a coal mine inspector and accident investigator, testified that he conducted a regular inspection of the 

No. 6 Mine on August 11, 1993. According to Langley, the mine 

employed approximately 10 persons. Coal was mined with a 

continuous mining machine on one section. The height of the 

coal seam averaged 32 to 33 Inches. The mine is located above 

the water table. Al though Langley never detected methane at the 

•ine, he believed others bad (Tr. 17-18). 

Counsel for the Secretary •aintained that the company quit 

aining under the name Bob & Tom, but that mining effectively 

continued under the nuae of Day Branch coal Co•pany (Day Branch) 

and that Hensley controlled both operations (Tr. 102). According 

to counsel, the No. 6 Mine was renamed the Day Branch Ho. 10 

Mine. It was one of several mines that Day Branch and Hensley 

operated. ~ 
CITATION NO· 4040112 

Citation No. 4040112, alleges a violation of 30 C.F.R. 

I 75.400, and states that "float coal dust has been allowed to 

accumulate inside the section power center. The dust was black 

in color and was present over the energized components of the 

power center" (Exh. P-1). The citation also contains a find that 

the alleged violation was S&S. 

Langley stated that while inspecting the section power 

center on August 25, 1993, he observed float coal dust inside the 

power center and spread over the center's energized components (Tr. 19). He viewed the dust through the power center's windows, 

located on its sides. The dust was black, but he could not 

determine its depth due to the covers on the equipment (Tr. 20). 

The power center, which received 4160 volts of electricity, was 

located approximately four crosscuts outby the face. ~ 

Langley considered the condition to be hazardous because 

electrical arcs were created inside the power center when the 

power to equipment was turned on or off. These arcs could have 

ignited the coal dust (Tr. 21). 

Because there was an ignition source in close proximity to 

the coal dust, Langley believed it was reasonably likely a fire 

could have occurred. It was not unusual for miners to work at 

the power center and a fire would have exposed miners to the 

dangers of flame, smoke and carbon monoxide, any of which hazards 

could have resulted in serious injuries (Tr. 22-24). 

The power center was examined weekly by mine management. 

Because of the color of the accumulation, Langley believed that 

the coal dust had been present on the power center for more than 

one week and that the company examiner had passed it by (Tr. 25). 

THE VIOI.ATIQN 

Section 75.400 prohibits the existence of accumulations 

of combustible materials. The commission bas held that a violative "accumulation" exists "where the quantity of combustible 

materials is such that, in the judgment of the authorized 

representative of the Secretary, it likely could cause a fire or 

explosion if an ignition source were present." Old Ben Coal Co., 

2 PllSHRC 2806, 2808 (october 1980). In defining a prohibited 

•accumulation" for section 75.400 purposes, the commission 

explained that •some spillage of combustible aaterials may be 

inevitable in mining operations. However, it is clear that those -•es of combustible materials which could cause or propaqate 

a fire or explosion are what conqress intended to proscribe." 

Old Ben coal co., 2 PllSHRC at 2808. 

1976 
Lanqley's testimony was clear. I find that the float coal 

dust located on the electrical components in the interior of the 

power center was such that it could have caused or propagated a 

fire. In the judgement of the inspector, the quantity of the 

dust in the immediate vicinity of electric arcs presented the 

very real danger of an ignition as aininq progressed on the 

•action. I accept this view and find that the violation existed 

- charged. 

S&S and GRAVITY 

The test set forth by the Commission in Mathies Coal Co., 

6 FMSHRC 1, 3-4 (January 1994) for determining whether a violation is S&S in nature is well known and need not be repeated here. I have concluded that a violation of the mandatory safety 

atandard existed. Moreover, the evidence establishes a discrete 

safety hazard in that the existence of the accumulation in the 

vicinity of electric arcs subjected miners working at the power 

center to the possibility of an ignition and to burn and 

inhalation injuries arising therefrom. Fortunately, such 

injuries did not occur, but they were reasonably likely. An 

actual ignition source to ignite the coal dust was present and 

would have continued to be present as mininq progressed and as 

power was turned .on and off. Moreover, miners were required to 

work in the immediate vicinity of the power center. Finally, 

any such injuries would have been reasonably serious, if not 

fatal. I conclude therefore that the violation was S&S. 

The concept of gravity involves analysis of both the 

potential hazard to miners anti the probability of the hazard 

occurring. Here, the hazard was of burn injuries or of injury 

due to the inhalation of smoke or carbon monoxide. Given the 

conjunction of the accumulation and electrical arcing inside 

the power center, the probability of an ignition was high. This was a serious violation. 

HEGLIGENCE 

The accumulation was visually obvious. Langley could see 

its extent and color through the side windows of the power 

center. Further, I credit bis belief that the accumulation 

existed for more than one week and consequently that it should 

have been observed and cleaned up. Bob' Tom's failure ·in this 

regard was a sign of its lack of due care. I therefore conclude 

the company was neqligent. 

CITATION NO. 4040113 

Citation No. 4040113, alleges a violation of 30 C.F.R. 

I 75.1101, and states that "the section belt drive was not 

provided with a deluge water spray system" (Exh. P-2). The 

1977 
citation also contains a finding that the alleged violation 

was S&S in nature. 

Langley testified that during his inspection be observed 

that the section belt drive was not provided with a deluge 

water spray system • . (However, there was a fire extinCJUisher 

at the belt head (Tr. 31).) The purpose of the spray system is 

to suppress belt fires. The sprays automatically turn on when 

the system's sensors are activated by heat (Tr. 27). 

Langley further testified that there was no evidence such 

a system had ever been installed at the belt drive (Tr. 28). 

Langley believed the belt drive was set up on August 13, 

1993 and that the violation existed from that date. 

Langley also observed loose coal and coal dust under the 

belt and float coal dust on the belt. Indeed, the belt was 

running in the coal and coal dust and Langley believed the 

friction from the belt rubbing in the material could cause an 

ignition (Tr. 29-30). The belt itself was dry (Tr. 31). 

In Langley's view, the combustible material in the presence 

of the ignition source, coupled with the lack of a deluge fire 

suppression system, made it reasonably likely an accident would 

have occurred, ~ accident that would have resulted in miners 

being exposed to smoke and carbon monoxide as well as to possible burn injuries (Tr. 35-36). Further, if the belt itself burned, 

additional toxic fumes would have been liberated. liL_ 

Langley observed the conditions at 2:40 p.m. (Exh. P-2). He 

cited the company for a violation of section 75.1101, and he gave 

Bob & Tom slightly more than two and one half hours to abate the 

violation. When Langley returned to the. mine on August 26, the 

system had not been installed and no one was working to install 

it (Tr. 33). The only reason offered for the failure to install 

the spray system was that the section repairman had not gotten 

around to it (Tr. 33). Therefore, Langley issued an order of 

withdrawal closing the section belt (Exh. P-3, Tr. 33). Bob & 

Tom abated the condition by installing a deluge water spray 

system whose parts were taken from an old belt drive (Tr. 34). 

THE YIOLATION 

Section 75.1101, which reiterates section 3ll(f) of the 

Act, 30 u.s.c. S 87l(f), states, in part, that "deluge-type 

water sprays ••• or other no less effective means approved by 

the secretary of controlling fire, shall be installed at main 

and secondary belt-conveyor drives." Here, where the beltconvayor drive for the continuous haulage system did not have 

a deluge-type water spray or any other system approved by the 

Secretary, the violation existed as charged. au. Tr. 40-41. 

1978 
S&S and GBAVITY 

As I have just found, there was a violation of the cited 

•tandard. There also was a discrete safety hazard in that the 

lack of a deluge-type fire suppression system at the belt drive, 

together with the fact that the belt was running in coal and 

coal dust and that there were accumulations of coal dust on the 

belt and around the belt drive, meant that an ignition at the 

belt drive was unlikely to be quickly extinguished. (Although it is true that a fire extinguisher was located in the vicinity 

of the belt drive, its immediate and therefore effective use 

could not be a~sured because a miner was not present always at 

the belt drive.) That a fire and injuries resulting therefrom 

were reasonably likely is established by the fact that all of 

the elements necessary for the potential hazard to come to 

fruition were in place at or near the belt drive -- an ignition 

source, combustible material, exposed miners and a lack an 

automatic means to extinguish an ignition. Moreover, and as 

Langley noted, any injuries resulting from an unextinguished 

ignition, whether in the form of burns or the inhalation of 

smoke or toxic gases, were likely to be of a reasonable serious 

nature. The violation was s&s. 

The violation also was serious in that the potential hazard 

to miners was grave given the confluence of conditions at and 

around the belt drive. 

NEGLIGENCE 

Negligence is the failure to exercise the care required by the circumstances. Langley could see no evidence that a 

deluge-type water spray system ever was installed. He noted 

the condition on August 25. I accept his testimony that the 

spray system had been missing for 12 days, that is, since the 

belt drive had been set up (Tr. 28). The standard is clear as 

to what is required. Bob & Tom had materials on hand necessary for the spray system. Certainly, the operator knew the spray 

system was missing, and its failure to have ·had one installed 

signaled its failure to meet the required standard of care. 

Bob & Tom was negligent. 

CITATIQN NO· 4040114 

Citation No. 4040114, alleges a violation of 30 C.F.R. 

I 75.383(a), and states that "an up-to-date escapeway map was 

not provided for the mine 001 section" (Exh. P-4). The citation 

al•o contains a finding that the alleged violation was S&S in 

nature. 

Langley testified that a •ap showing the escapeways was 

not present on the 001 Section (Tr. 41). The map is required 

1979 
in order to illustrate for miners the way to the surf ace in the 

event of a fire or of an explosion. 

In Langley's opinion, if a fire occurred, miners were 

likely to panic and forget the location of escapeways or become 

disoriented by smoke and loose their way (Tr. 42) . Xndeed, 

Langley discussed an accident where this very thing happened (Tr. 46). 

The danger of miners being unable to find their way out 

of the mine was aggravated by the fact that all of the self 

rescuer devices required by the regulations were not present 

on the section (Tr. 43-45). Miners who became lost in the 

smoke could have perished because they could not have found 

their way out in time (Tr. 48). 

Langley cited the violation on August 25. He believed 

the mine had been without a map since August 13, the date the 

direction of mining on the section changed (Tr. 42) . Langley also noted that there were several ignition sources on the 

section, as well as loose coal in every entry and loose coal 

and float coal dust along the beltline (Tr. 49-50). 

Langley testified that all eight persons who worked on the 

001 section would have been affected by the lack of the escapeway 

aap. Given the fact that the map was missing and given the combustible materials on the section, Langley believed it reasonably 

likely there would have been injuries or fatali ties in the event 

of a fire (Tr. 51-52) . 

THE VIOLATION 

Section 75.383(a) states in part, "A map shall be posed i n 

each working section • •• and shall show the designated escapeways 

from the working section." Clearly, such a map was not present 

on the 001 section, and I find the violation existed as charged. 

S&S and GRAVITY 

I also conclude the violation was S&S. Because I credit 

Langley's testimony regarding the presence of ignition sources 

and combustible coal and coal dust, I believe that a fire or 

explosion was reasonably likely to have occurred had mining continued on the section. Further, I believe that Langley was 

right when he stated that without a map ainers were likely to 

panic and to lose their way in the smoke. Therefore, I find that 

it was reasonably likely miners on the 001 section would have 

llUffered serious injury or death due to the failure of the 

operator to ensure the presence of the escapeways -P on the 

working section. 

1980 
I find the violation was serious. As I have noted, the map could have made the difference between life and death to miners 

working underground. 

NEGLIGENCE 

The map was management's responsibility. There was ample 

time to provide one. In failing to ensure its presence, aanage- 98Jlt failed to meet the standard of care required. I therefore 

find the operator was negligent. 

CITATION BO. 4040115 

Citation No. 4040115, alleges a violation of 30 C.F.R. 

§75.503, and states that "the S&S 482 scoop used on the mmu-001 

section was not maintained in permissible condition because 

an opening greater than .005 of an inch existed in the cover 

of the starting box lid" (Exh. P-5). The citation also contains 

a finding that the alleged violation was S&S in nature. 

Langley explained that section 75.503 requires that 

electric equipment operated on the section be maintained in permissible condition, which means that "equipment is maintained 

in the condition t~ prevent an explosion or a fire" (Tr. 53). 

To do this the electrical components of the equipment must be 

kept relatively air tight so that methane does not seep into 

the components. ~ 

Here, the bolts on the starting box of the scoop were 

loose and there was a resulting gap in the box through which 

methane could have entered. (Langley measured the gap with a 

feeler gauge.) Once inside, methane could have been ignited 

by the electric arcs in the starting box. Further, the scoop 

was used in face areas, returns and old works, areas where 

methane was likely to accumulate. 

If methane had been ignited, Langley believed it was 

reasonable to expect that the scoop operator would have received 

first or second degree burns, or even have been killed (Tr. 56). 

Moreover, a methane ignition could have effected the entire mine 

in that an explosion could have been propagated by the dust put 

into suspension by the force of the ignition. The explosion would have traveled toward the surface, as the coal dust and 

float coal dust along the beltline was ignited (Tr. 56-57). The 

acoop was energized when it was observed by Langley (Tr. 57). 

THE VIQLATION 

Section 75.503 states, in part, that "the operator of each 

coal mine shall maintain in permissible condition all electric 

face equipment ••• which is taken into or used inby the last 

open crosscut." There is no question that the startinq box of 

1981 
the scoop contained a gap in excess of .005 inches. Likewise, 

there is no dispute that such a gap was not permissible and was 

in violation of section 75.503. Therefore, I find that the 

violation existed as charged. 

S&S and GRAVITY 

This violation posed a likelihood of serious injury, even 

of death, to miners. As Langley explained, methane could have 

entered the scoop's starting compartment through the gap and 

could have been ignited by an arc or spark within the box 

(Tr. 53). That this likelihood was reasonable is established by 

Langley's testimony that the scoop was operated in areas where 

methane was likely to accumulate and that electric arcs occurred 

within the starting box (Tr. 54.) Given Langley's uncontroverted 

testimony, I conclude the violation was s&s. 

The violation was serious. Not only did it pose the hazard 

of a methane ignition, but, as Langley explained, given the 

presence of the coal dust and float coal dust on the section and 

along the belt, the ignition could have triggered an explosion 

that could have effected the entire mine and all personnel in it, 

whether or not they worked on the 001 section (Tr. 56-57). 

NEGLIGENCE 

Electric face equipment, such as the scoop, is required to 

be maintained in permissible condition. It is the operator's responsibility. The record·reveals no mitigating factors for 

management's obvious failure to meet this standard of care. 

Therefore, I conclude Bob & Tom was negligent. 

CITATION NO. 4040116 

Citation No. 4040116 alleges a violation of 30 C.F.R. 

§ 75.1719-l(e)(6), and states that "lights were not provided for 

the 482 s & s Scoop used on llllllU-001" (Exh. P-6). The citation 

also contains a finding-that the alleged violation was S&S in 

nature. 

Langley stated that, in addition to having a gap in excess 

of .005 inches in the starting box, the scoop lacked lights 

(Tr. 58). The only light the operator of the scoop had available was from his cap lamp (Tr. 59). There should have been 

four lights on the scoop, two on the front and two on the back. 

The front lights had been torn from the machine, and the rear 

lights were not working (Tr. 64). If the lights had been 

operating, they would have illuminated the periphery of the 

acoop. The cap lamp did not (Tr. 60). 

The scoop was used in 32 inch coal, and miners had to 

crawl in the area. Because of the mining height, the scoop 

1982 
operator could not lift his or her head high enough over the 

frame of the scoop to illuminate the area opposite the scoop 

operator (the off side) (Tr. 63). Lights would have provided 

the operator with visibility on the off side (Tr. 63) •.. The 

•action foreman traveled in the area, as did those ainers 

vboae job it was to hang ventilation curtain and take 11ethane 

readings. Langley guessed that the scoop traveled at a •peed of approximately six miles per hour (Tr. 60). 

Given these factors, Langley believed that it was reasonably likely the scoop operator would strike another miner (Tr. 61). 

A factor making an accident even more likely given the lack of 

lights was the noise made by the continuous mining machine and 

the bridge conveyor. Langley stated that both created "a lot" of 

noise and, if the scoop was in use in an entry adjacent to one 

being mined, it would have been difficult for a miner working or 

traveling in the vicinity of the scoop to hear the scoop (Tr. 61-

62). A miner hit by the scoop could have been crushed (Tr. 61). 

THE VIOI.ATION 

Section 75.1719-l(e)(6) states that unless the entire 

working place is illuminated by stationary lighting equipment, "luminaries shall be installed on each machine operated in a 

working place." These lights are required to illuminate areas 

both in front and in back of the machine. The testimony establishes that the two front lights were not present on the 

scoop and the two back lights were not working. Thus, front 

luminaries were not installed as required and the area in back 

of the machine was not illuminated as required. The violation 

existed as charged. 

S&S and GRAVITY 

As Langley explained, the lack of proper illum.ination 

contributed to the likelihood of a miner being struck by the 

•coop. That this was reasonably likely to have happened and 

could have resulted in an injury was made clear by the fact that 

the area where the scoop was being operated was the very area 

where the section foreman was required to travel and miners were 

required to work. The scoop operator bad inadequate visibility, 

especially on the off side, to see the foreman and miners. In 

addition, the fact that the shuttle car was a massive piece of 

equipment and traveled at speeds of up to six miles per made 

it a virtual certainty that any person struck by the equipment 

would have been seriously injured, if not killed outright. 

'l'barefore, I conclude the violation was S&S. 

The likelihood of an accident, coupled with the potential 

for aerious injury or death, 1l8ant that this was a aerious 

violation. 

1983 
QGLIGEHCE 

It was management's duty to assure mining machinery was 

11aintained in safe operating condition. The violation was 

visually obvious. Management knew, or should have known, of 

its existence. Operating the scoop in a condition that was 

obviously hazardous to miners was indicative of manaqe.aent's failure to meet the required standard of care. The company was 

negligent. 

CITATION NO. 4040118 

citation No. 4040118, alleges a violation of 30 C.F.R. 

§ 75.1713-7(a)(l), and states that "adequate first-aid supplies 

were not maintained on the surf ace area of this underground 

mine" (Exh. P-7). The citation also contains a finding that 

the alleged violation was S&S in nature. 

Langley stated that the company bad three surface employees. 

One miner watched the belt and two drove coal haulage trucks 

(Tr. 65). In addition, all underground miners traveled on the 

surface to and from the mine. Langley stated that no first aid 

supplies were stored on the surface, not even a band-aid 

(Tr. 66). Langley agreed that the missing supplies could be 

described as "the basic stUf f that keeps you going until the 

paramedics can get there" (Tr. 70). In the event of an injury requiring a tourniquet, none would have been present, and there 

were no splints for broken bones or blankets for shock victims 

(Tr. 66-67). 

THE VIOLATION 

Section 75. 1713-7(a)(l) requires each operator to keep 

specified first-aid equipment at the mine dispatcher's office 

or other appropriate work areas on the surf ace and in close 

proximity to the mine entry. As Langley indicated, among the 

equipment specified are tourniquets, blankets· and splints. In 

addition, such basic things as bandages and compresses also 

are required. None of these items were present on the surface. 

The violation existed as alleged. 

S&S and GRAVITY 

The violation was both S&S and serious. If an injury had 

occurred, .. ans for treating it until professional help arrived ... lacking. Frequently, such stop-gap treatment is necessary 

to prevent the aggravation of an injury, or even to save a 

victia'a life. If normal mining operations had continued, it 

1• likely that aooner or later a nner would have been injured. When this happened, there was a reasonably likelihood that the 

hazard contributed to -- lack of prompt and effective 8118rgency 

medical treatment -- would have compounded the injury. Given the 

1984 
dangers inherent in mining, there is no doubt that the lack of 

first-aid equipment presented a serious hazard to miners. 

NEGLIGENCE 

In failing to provide the required first-aid equiP.ent, 

Bob ' Tom negligently failed to meet the standard of care 

required of an operator. 

CITATION NO. 4248441 

Citation No. 4248441 alleges a violation of 30 C.F.R. 

§ 75.364(a)(l) and states that "the weekly examination of the 

worked out areas inby where 1st right bas started mining off 

the mains has not been conducted weekly" (Exh. P-8). The 

citation also contains a finding that the alleged violation 

was S&S in nature. 

Langley stated the citation was issued for the failure to 

examine on a weekly basis worked out areas of the mine. Langley 

explained that mining operations had driven straight ahead for 

approximately 6,000 feet when the decision was made to pull back 

about 2, ooo feet and to mine in a new direction. Once mining 

was started in the new direction, the old works were not examined 

(Tr. 72-73). Langiey was sure they were not examined because 

no dates, times or ·initials were recorded (Tr. 73-74). Also, 

Langley asked the section foreman if he had conducted the 

examinations and the foreman replied he "didn't have time" to do 

them (Tr. 7 6 ) • 

Failure to examine the worked out area could have lead 

to accumulations of methane or of air with low oxygen content 

(Tr. 74). Supplies had been left in the area -- an old belt 

structure and roof bolting supplies -- and Langley feared that 

a miner would take equipment into the old works to retrieve the 

supplies, that the equipment would malfunction electrically and 

accumulated methane would be ignited (Tr. 76). Indeed, Langley 

testified that he was aware of ~ recent explosion at another 

•ine caused in just this way, an explosion that killed two miners 

(Tr. 77-78). 

If there bad been a explosion, the heat and flames could 

travel out of the old works and the accumulations of coal. and 

coal dust along the belt line could have ignited. In this way, 

the effects of the explosion could have traveled to the surf ace 

(Tr. 79). Depending upon the extent of the explosion, one person 

could have been affected (the person who went to the old works 

for the supplies) or, all Jliners working underground could have 

been affected. Any of those involved could have aUffered 

injuries ranging from first or second degree burns to 8ll0ke 

inhalation (Tr. 79). 

1985 
THE VIOLATION 

Section 75.364(a)(1) requires that at least once every 

aeven days a certified person examine unsealed, worked-out 

areas aeasuring methane and oxygen concentrations. 30 C.F.R. 

175.364(9) requires that such an examination be certified by the 

examiner posting his or her initials, the date, and the time of 

the examinations at enough locations to show the examination was 

11ade. Clearly, the required weekly examinations were not made. 

They were not certified as required and the section foreman 

stated be was not doing them. Therefore, I conclude the 

violation existed as charged. 

S&S and GRAYITY 

I agree with Langley that the violation was S&S. As he 

explained, methane is present in the seam being mined and without the required weekly examination there was no way to know 

if the methane was accumulating in the old works. The presence 

of the belt structure and the roof bolting materials meant that 

it was likely miners and equipment would return to the old works. 

Indeed, Langley testified that the day before the violation was 

cited the scoop had been driven into the old works to retrieve 

part of the deluge water system from the old belt structure 

(Tr. 76). I ~onclude therefore that there was a discrete safety 

hazard in that methane could have accumulated undetected in the 

old works. Further, the record establishes it was likely the 

scoop would have been taken into the unexamined areas to retrieve 

the supplies. (This was the same scoop that was not maintained 

in permissible condition.) I therefore find it reasonably likely 

that a potential ignition source would have been present in the 

unexamined areas. In my view, the lack of the required examination, the possibility of methane accumulating in the old works, 

coupled with the presence of a ready ignition source, made it 

reasonably likely an ignition would occur. Moreover, first or 

second degree burns are injuries of a reasonably serious nature, 

as is smoke inhalation. I find therefore that the violation was 

S&S. 

Because of the likelihood of an accident and the injuries it 

could have engendered, the violation also was serious. 

BEGLXGEHCE 

That the section foreman felt he did not have time to 

conduct the examinations is no excuse. If, in fact, he was too 

busy to examine the area, Bob & Tom was required to make sure 

another certified person did. compliance is the operator's duty, 

and here the operator failed in that regard~ The coapany was 

negligent. 

1986 
CITATIQN NO. 4248555 

Citation No. 4248555 alleges a violation of 30 C.F.R. 

I 75.400 and states that "loose coal had been allowed to 

accumulate in the Nos. 1, 2 ' 3 rooms of 001 section in depths 

up to 6 inches for a distance of approximately 80 feet from 

tbe faces outby." The citation also contains a finding that 

tbe alleged violation was s's in nature. 

MSHA coal mine inspector Roger Pace testified that during an 

inspection of the No. 6 Mine he observed accumulated loose coal 

in three entries that had been driven to the face. According 

to Pace, the accumulated material extended outby for 80 feet. 

(Pace's inspection occurred nearly a month before Langley's.) Pace measured the depth of the accumulations with a ruler and 

found that the coal measured up to six inches deep (Tr. 85-87). 

There was coal dust as well, and it was dry and black (Tr. 87). 

In Pace's opinion the accumulations were the result of 

spillage along the bridges of the continuous haulage system. 

R._ Given the extent of the coal and coal dust, Pace believed 

it had been accumulating for approximately three shifts (Tr. 88, 

99). No one was working to clean up the accumulations when 

they were observed\ by Pace. Indeed, the section foreman told 

Pace that he only had seven miners working on the section and 

because he was short handed there was no one to spare for clean 

up duties. As Pace put it, "production comes first to them" 

(Tr. 98). Cleanup began only after Pace advised the section 

foeman that he, Pace, was tssuing a citation for a violation 

of section 75.400 (Tr. 91-92). 

With regard to the hazard presented by the accumulations, 

Pace believed it was likely they would catch fire. Be noted the 

electrical equipment on the section and the fact that given the 

aovement of the equipment and the wear and tear on the trailing cables, an exposed conductor in one of the cables could have 

resulted in an arc or spark, which, in turn, could have resulted 

in a fire (Tr. 89-90). Although Pace did not inspect the cables, 

he believed they tended to fray and to separate as they were 

pulled around corners. 

THE VIOLATION 

As noted, the Commission has stated that Congress intended 

to proscribe "those masses of combustible materials which could 

cause or propagate a fire or explosion." Old een coal Co., 2 

at 2808. Since accumulations are ·to some extent an inevitable 

zeaUlt of the aining process, an operator is given a reasonable 

a.ount of time to clean up the by-product of the aining cycle. 'l'bua, tbe length of time that combustible material i• present 

is relevant in determining whether a particular acCUllUlation 

1987 
is prohibited. utab Power & Light co. y. Secretarv of I,nbor, 

951 F.2d 292, 295 (10th Cir. 1991) (n.11) . 

Pace's testimony was not challenqed and I accept his 

assessment that the accumulation of coal and coal dust on the 

••ction could have been iqnited. As he testified, the coal 

dust was black and it was dry. Moreover, the accUllUlations 

1Mre lenqthy in that they extended outby from the face areas 

for approximately 80 feet. I also accept his assessment that 

the accumulations bad existed for approximately three shifts 

and were not cleaned up with "reasonable promptness." Certainly, it is no excuse that the section foreman found himself short 

handed. I therefore conclude the violation existed as charqed. 

S&S and GBAVITY 

The Secretary bas not established the violation was S&S. 

The Secretary's case founders on the third element of the 

Matbies test -- the requirement that the Secretary prove "a 

reasonable likelihood that the hazard contributed to will 

result in an injury." Matbies Coal Co., 6 FMSHRC at 3-4. 

Althouqh Pace testified that trailinq cables to electrical 

equipment could constitute a potenti al iqnition source for 

the accumulation, he did not inspect any of the cables to 

determine whether they were defective or out of compliance and he was unable to testify that any other equipment on the 

section that was out of compliance. 

For me to find that a fire or iqnition of the accumulations was reasonably likely, I would have to aqree with 

what seems to be the thrust of the Secretary's case -- that 

trailinq cables invariably become defective during the course 

of continued normal mining operations. on the basis of this 

record I am reluctant to make such an assumption. Aside from 

testimony that the cables had no visible defects, nothing was 

put on the record relating to the condition of the specific 

cables involved; and I believe it would be unwarranted to 

assume that they would inexorably deteriorate to the point 

where they could iqnite accumulations. If this were the case, 

one would assume the Secretary would require their replacement 

on a regular basis. 

'l'his said, I find that the potential hazard to the safety 

of lliners was such that this was a serious violation. Pace was 

juatif iably concerned about their fate if the accumulations 

i911ited. 'l'he extent of the accu.ulations .. ant that any fire 

and 8110ke and fuaes could have traveled up the entries and could 

laave endangered not only the •action crew of •even but any other 

persons in the aine. While this hazard was not ~onably likely 

to coae to fruition, it could have happened and the potential for 

injury or death was qreat. 

1988 
BEGLIGEffCE 

I accept Pace's opinion that the accumulations existed for 

up to three shifts. As I have noted, the fact that the section 

foreman did not have a full crew was no excuse for failing to 

clean up the accumulation with reasonable promptness. It is the 

operator's duty to act to eliminate accumulations resulting from 

the llining process. Bob & Tom negligently failed to do so. 

OTHER CIVIL PENALTY CBITEBIA 

HlSTQRY OF PREVIOUS VIOLATIONS 

With regard to the operator's history of previous 

violations, the Secretary submitted into evidence a computer printout listing all violations assessed at the Day Branch mines 

during the two years prior to the first violation in this case 

(Exh. P-10). Counsel argued that in considering the operator's 

history of previous violations I should take into account the 

assessed violations at all of the operator's mines, rather than 

those solely relating to Mine No. 6 (also known as Day Branch 

No. 10 Mine). Counsel stated she believed there was Commission 

precedent on this point and, at my request, indicated she would 

submit a letter setting forth the relevant case law (Tr. 105-

106). 

I did not receive further information from counsel, but I 

agree with her to the extent that I conclude, in this particular 

case, consideration of the previous history of all of the mines 

of Day Branch is warranted. 

First, and since there is no evidence ·to the contrary, I 

accept counsel's assertion that although mining may have ceased 

under the name of Bob & Tom, the operator continued to mine the 

No. 6 Mine under the name of Day Branch (Tr. s, 102). I further 

accept what appears to be the essence of the Secretary's 

contention, that Bobby Joe Bensley, President of Bob & Tom, is 

also significantly involved in th~ management of Day Branch and 

represents the operator both for Bob & Tom and Day Branch. 

Consideration of the history of previous violations in 

civil penalty assessments is based upon a theory that attaches 

punitive ~onsequences to noncompliance in an effort to encourage 

future compliance. In general, I believe that where more than 

one .U.ne is governed by the same entity, and where that entity 

bas Jla!lagement control and responsibility over the conditions of 

aucb .U.nes, compliance is furthered by considering past assessed 

violations at all llines, rather than one. Of course, there may be tiaes when limiting consideration of previous history to the 

apecif ic lline in which the violations were cited better fosters 

compliance, but no reasons for invoking such an exception to the 

general rule are apparent in this record. Therefore, when I 

1989 
consider the history of previous violations in this case, I 

will, as the Secretary requests, take account of violations 

cited and assessed at all Day Branch mines. 

During the 24 months prior to the date of the ~irat 

violation in this case, a total of 808 violations were assessed. 

This is a large history of previous violations. (I will analyze 

the previous violations of the particular standards here involved 

when I assess the individual civil penalties.) 

Consideration of the operator's history of previous 

violations also requires that I examine one additional factor -- the operator's compliance history. Counsel stated, and 

the computer print out confirms, that while $396,953 has been 

assessed for violations occurring in the two years prior to the 

first violation in this case, $25,219 has been paid (Tr. 105, 

Exh . P-10). In response to my inquiry about the Secretary's 

collection efforts, Counsel further stated, "The Secretary at 

this time is talking to the Department of Justice about seeking collection action against Mr. Hensley" (Tr. 105). 

There is nothing in the record to explain why the operator has ignored $371,734 in final civil penalty orders (i.e., 

penalties not, litigated). I can only assume that its decision 

to play the scoff law arises from that same contempt for the 

Mine Act and the Commission that lead to its failure to appear at 

the hearing. In any event, the operator has amassed an extreme 

number of delinquent civil penalties and a significantly large 

debt to the government. As set forth below, I conclude this 

warrants sizably higher penalties than would otherwise have been 

appropriate. ~ Mav Besources Incorporated, 16 FMSHRC 170 

(January 1994) (ALJ Fauver). 

SIZE OF BUSINESS OF THE OPERATOR 

The Secretary's proposed assessment sheet, which is in the 

file and part of the record, indicates that the Secretary viewed 

the mine, as well as the controlling entity of which the mine is 

as part, as small in size (Proposed Assessment 2; Tr. 17-18). 

Other things being equal, assessed penalties would have been 

commensurate with this criterion. However, other things are not 

equal, especially the operator's significantly large history of 

previous violations and its exceedingly poor compliance history. 

ABILITY TO CQNTINQE IN BUSIHESS 

If an operator contends its ability to continue in business 

will be impaired by the size of JmY penalties assess, it bears 

the burden of proof. Here, the operator presented no proof vi th 

regard to this criterion. (Indeed, the operator presented no 

proof with regard to anything.) I conclude the penalties will 

not affect its continuation in business. 

1990 
BAPID COMJ>LIAHCE 

In no instance did the operator exhibit unusual expedition 

in abating the violations, and in no instance, other than the 

failure to install deluge-type water sprays on the aection belt 

drives, did the operator fail to comply in a timely fashion. 

Therefore, the penalties will be neither increased nor decreased 

because of this criterion, except for the violation of aection 

75.1101, where the operator's failure to timely abate will 

warrant an increase in the penalty that would otherwise have 

been assessed. 

CITATION NO. 

4040112 

A$SESSMENT OF PENALTIES 

DATE 

8/25/93 

30 C.F.R.§ 

75.400 

The Secretary has proposed a penalty of $189. (The largest penalty previously assessed for a violation of section 75.400 was 

$2,500 (Exh. P-10).) Given the serious nature of the violation, 

the negligence of the operator, the operator 1 s generally large history of previous violations, its significant number of prior 

violations of section 75.400 (66 in all) and, given its woeful 

compliance record, I conclude a penalty significantly higher than 

that proposed by the Secretary is warranted. Accordingly, I 

assess a civil penalty of $5,000. 

CITATION NO. 

4040113 

DATE 

8/25/93 

30 C.F.R. § 

75.1101 

The Secretary has proposed a penalty of $851. (The largest penalty previously assessed for a violation of section 75.1101 

is $569 (Exh. P-10).) Given the serious nature of the violation, 

which was augmented by the fact that the belt was running through 

accumulations of coal and coal dust, and by the fact that smoke 

and fumes from a fire would have traveled to the face, the negligence of the operator, the operator 1 s large history of previous 

violations, the operator 1 s compliance record and the operator 1 s 

lack of effort to achieve timely compliance with the cited 

standard, I conclude a penalty significantly higher than that 

proposed by the Secretary is warranted. Accordingly, I assess 

a civil penalty of $5,500. 

CITATION NO. 

4040114 

~ 

8/25/93 

30 C.F.R. § 

75.383(a) 

The Secretary has proposed a penalty of $309. (There are 

no previously assessed violations of this standard.) Given the 

serious nature of tbe violation, which was augmented by the fact 

1991 
that loose coal and coal dust and ignition sources were present 

on the section, the negligence of the operator and the operator's 

compliance record, I conclude a penalty significantly higher than 

that proposed by the Secretary is warranted. Accordingly, I 

assess a civil penalty of $3,500 • 

CITATION NO. 

4040115 

.DAll 

8/25/93 

30 C.F.R. § 

75.503 

The Secretary bas proposed a civil penalty of $189. (The 

largest penalty previously assessed for a violation of section 

75.503 is $1,019 (Exh. P-10).) Given the serious nature of the 

violation, which was augmented by the presence of loose coal and 

coal dust on the section, the negligence of the operator, the 

fact that the operator's history of previous violations contains 

40 assessed violations of section 75.503 and the operator's compliance record, I conclude a penalty significantly higher 

than that proposed by the Secretary is warranted. Accordingly, 

I assess a civil penalty of $4,000. 

CITATION NO. 

4040116 

~ 

8/25/93 

30 C.F.R. § 

75.1719-l(e)(6) 

The Secretary bas proposed a civil penalty of $189. (The 

largest penalty previous assessed for a violation of section 

75.1719-1 is $362.) Given the serious nature of the violation, 

the negligence of the operator and the operator's compliance 

record, I conclude a penalty significantly higher than that 

proposed by the Secretary is warranted. Accordingly, I assess 

a civil penalty of $4,000. 

CITATION NO. 

4040118 8/26/93 

30 C.F.R. § 

75.1713-7(a)(l) 

The Secretary has proposed a civil penalty of $189. 

(There is one previous violation of section 75.1713-7 for 

which $20 is assessed (Exh. P-10).) Given the serious nature 

of the violation, the negligence of the operator and the 

operator's record of compliance, I conclude a penal~y signi- ficantly higher than that proposed by the Secretary is warranted. 

Accordingly, I assess a civil penalty of $3,500. 

CITATION NO. 

4248441 

~ 

8/26/93 

30 s;:.F.R. § 

75.364(a)(l) 

The Secretary has proposed a civil penalty of $189. 

(There were no assessed previous violations of this atandard 

(Exh. P-10.) Given the serious nature of this violation, the 

1992 
neqliqence of the operator, which was particularly eqreqious in 

view of the section foreman's self-proclaimed lack of time to 

inspect the worked out areas, and qiven the operator's record of 

compliance, I conclude a penalty siqnificantly higher than that 

proposed by the Secretary is warranted. Accordingly, I assess a 

civil penalty of $4,500. 

CITATION NO. 

4248555 

.DAll 

7/27/93 

30 c.r.R. s 

75 . 400 

The Secretary has proposed a penalty of $431. (The largest penalty previously assessed for a violation of section 75.400 

is $2,500 (Exh. P-10).) The serious nature of the violation 

is mitigated, to some extent, by the lack of proof of a ready 

iqnition source. Given the operator's negligence, the fact that 

the operator's relevant history of previous violations contains 

66 assessed violations of section 75.400 and the operator's compliance record, I conclude a penalty siqnificantly higher than that proposed by the Secretary is warranted. Accordinqly, I assess a civil penalty of $4,000. 

QRDER 

Within 30 days of the date of this Decision, the operator shall pay civil penalties in the amount of $34,000. The 

Secretary shall modify Citation No. 4248555 by deleting the 

S&S desiqnation. 

Distribution: 

3t?Udl:~:__ David F. Barbour 

Administration Law Judge 

Mary sue Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215-2862 (Certified Mail) 

Bobby Joe Bensley, President, Bob & Tom coal company, 

Inc., P.O. Box 204, Cawood, KY 40815 (Certified Mail) 

\lb 

1993 
OFFICE Of AllUIUSTRATJVE LAW JUDGES 

2 llCYLlll£, 10th FLOOR 

5203 L£ESllltG PIKE 

FALLS CllltCH, VIRGINIA 22041 

SEP 2 8 199l 

SECRETARY OF LABOR, 

KINE SAFETY AND HEALTH 

ADMJ:NISTRATION ( MSHA) I 

Petitioner 

v. 

CROCKETT COLLIERIES (KY) INC., 

Respondent 

: CIVIL PENALTY PROCEEDING . . 

: Docket No. KENT 94-520 

: A.C. No. 15-15455-03542 

. . 

. . 

Soladay Mine 

DICISIOH APPRQYDfG SB'PJ'!PP"' 

Appearances: Joseph Luckett, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

·_ Joshua E. Santana, Esq., Brown, Bucalos, Santana 

and Bratt, P.s.c., Lexington, Kentucky, for the 

Respondent. 

Before: Judge Melick 

This case is before me upon a petition for assessment 

of civil penalty under Section 105(d) of the Federal Mine 

Safety and Health Act of 1977 (the Act). At bearings, 

Petitioner filed a motion to approve a settlement agree-

•ent and to dismiss the case. Vacation of Order No. 4245549, 

deletion of the "significant and substantial" findings from 

Order Nos. 3830240 and 4245405 and a reduction in penalty 

from $26,700 to $9,000 was proposed. I have considered the 

representations and documentation sul:)mitted in this case, and 

I conclude that the proffered settlement is acceptable under 

the criteria set forth in Section llO(i) of the Act. 

WBBREFORE, the motion for approval of settl ment is 

GRAMTBD, and it is ORDERED th t Res ndent pay a penalty of 

$9,000 within 30 days of this 7 

j Gary lick 

Admin trative 

1994 

I 

... 

\ 
Distribution: 

Joseph B. Luckett, Esq., Office of the Solicitor, 

U.S. Department of Labor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215-2862 (Certified Mail) 

Joshua E. Santana , Esq . , Brown, Bucalos, Santana & Bratt, 

P.S.C., 600 Lexington Building, 201 West Short St. , Lexington, KY 40507 (Certified Mail) 

/lh 

1995 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION .. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 8 199{ 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BROWN BROTHERS SAND CO., 

Respondent 

Docket No. SE 94-21-M 

A. C. No. 09-00265-05517 

Junction city Mine 

DECISION 

Appearances: Michael K. Hagan, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia for 

Petitioner; 

Before: 

Mr. Steve Brown, Partner, Brown Brothers Sand 

Co., Howard, Georgia, Pro Se, for Respondent. 

Judge Hodgdon 

This case is before me on a petition for assessment of civil 

penalty filed by the Secretary of Labor against Brown Brothers 

Sand Company pursuant to Sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § § 815 and 820. The 

petition alleges nine violations of the Secretary's mandatory 

health and safety standards and seeks civil penalties in the 

amount of $597.00. For the reasons set forth below, I vacate one 

citation, affirm the rest, while increasing the degree of 

negligence on two of them, and assess penalties in the amount of 

$1,036.00. 

A hearing was held in this case on May 26, 1994, in Butler, 

Georgia. Mine Safety and Health Administration (MSHA) inspectors 

Steve c. Manis and Harry L. Verdier testified for the petitioner. 

Messrs. Greg and Carl Brown testified on behalf of Brown 

Brothers. The parties were offered the opportunity to file 

briefs in this case; only the Secretary availed himself of the 

opportunity. 1 I have considered the Secretary's Brief in my 

disposition of this case. 

By letter dated September 9, 1994, Mr. Steve Brown 

stated, on behalf of the Respondent: "We do not know what you 

want in this brief. We stated everything that we wanted to 

during the hearing that you presided at. We do no have anything 

new to add. Therefore we stand on our testimony at time of 

hearing." 

1996 
St1MMARY OF THE EYIPENCE 

MSHA inspector Steve c. Manis conducted an inspection of 

Brown Brothers Sand company on August 11, 1993. He was 

accompanied on the inspection by his supervisor, 

Harry L. Verdier. 

Before going on the inspection, Inspector Manis had received 

a report from the MSHA Health and Safety Analysis Center that 

Brown Brothers had not filed its quarterly report, MSHA Form 

1000-2, for the first quarter of 1993. Both he and Inspector 

Verdier had called "Denver" before August 11 to verify that the 

report had not been received. Therefore, when they arrived at 

the facility, Inspector Manis asked Greg Brown if a report had 

been filed and if the company had their copy of it. Mr. Brown 

indicated that he believed that one had been filed, but was 

unable to locate the company's copy of the form. As a result, 

Manis issued Citation No. 3604123 for a violation of Section 

50.30(a) of the Secretary's Regulations, 30 C.F.R. § 50.JO(a). 

(Pet. Ex. 3.) The violation was abated that afternoon when 

Mr. Brown filled out another MSHA Form 7000-2 and gave it to the 

inspector. 

The inspectors next went to the shop where they found two 

compressed and liquid gas ·cylinders standing with hoses, 

regulators and torches attached to them. They were not chained 

to the wall or by the wall, and they were not in a stand. When 

this was discovered, Greg Brown placed them on their sides on the 

ground. Inspector Manis issued Citation No. 3604124 for a 

violation of Section 56.16005 of the Regulations, 30 C.F.R. 

S 56.16005. (Pet. Ex. 4.) The violation was abated later that 

day by placing the cylinders in a storage rack and chaining them. 

On leaving the shop and walking through the plant, 

Inspector Manis observed that the cover for the electrical switch 

box for the tank conveyor belt was off and lying on the ground. 

He did not observe any repairs or testing being performed on the 

switch box or the conveyor belt, nor was he informed that such 

was the case. As a consequence, he issued Citation No. 3604125 

alleging a violation of Section 56.12032, 30 C.F.R. S 56.12032. 

(Pet. Ex. 5.) The breach was abated when Greg Brown picked up 

the cover, knocked the sand out of it, and replaced it on the 

switch box. 

1997 
The inspector believed that this situation was reasonably 

likely to result in a fatal injury to at least one person because 

"people do come in this. area and they could contact the inner 

parts, electrical parts." (Tr. 32.) He stated there was "an 

electrocution hazard if a person did come into contact with the 

480 volts." (Tr. 31.) Inspector Verdier added that "this 

particular box was mounted at about chest height on a piece of 

board directly in a line going from the shop to a tunnel." 

(Tr. 98.) 

The inspection next proceeded to the concrete sand tunnel. 

Inspector Manis found that the conveyor belt, which was next to a 

walkway, did not have an emergency stop device and was not 

guarded by railings. The inspector considered this to be a 

violation of Section 56.14109, 30 C.F.R. § 56.14109, and issued 

Citation No. 3604126. 2 (Pet. Ex. 6.) Brown Brothers abated the 

violation by placing · a wire rope along the walkway, the length of 

the conveyor belt. 

Inspector Manis found the same deficiencies in the mortar 

sand tunnel. He issued Citation No. 3604127 for a violation of 

Section 56.14109. 3 (Pet. Ex. 7.) The violation was abated in 

the same manner as the previous one. 

At the mortar sand belt conveyor, Inspector Manis discovered 

that the back section of the tail pulley guard had deteriorated 

or "rotted out" to the point that it no longer guarded the 

pulley. Consequently, the inspector issued Citation No. 3604128 

for a violation of Section 56.14112(a) (1), 30 C.F.R. § 

56.14112(a) (1). (Pet. Ex. 8.) The violation was abated by 

replacing the back section of the guard. 

2 The citation, as written by the inspector, charged a 

violation of Section 56.14109(a) and alleged that the violation 

was "significant and substantial." The citation was subsequently 

modified by the inspector to delete the "significant and 

substantial" designation. It was amended at hearing, without 

objection, to allege a violation of Section 56.14109. (Tr. 9-

12.) 

3 This citation was also modified by the inspector and 

amended at hearing. See fn. 1, supra. 

1 998 
On the barge on the primary side of the pit, the inspector 

detected that the belts on the multi-V-belt drive for the sand 

pump were not guarded. The unguarded belts were at the foot of 

a stairway and to the left of the walkway. The belts were moving 

rapidly at the time he observed them. As a result, Inspector 

Manis issued Citation No. 3604129 for a violation of Section 

56.14107(a), 30 C.F.R. § 56.14107(a). (Pet. Ex. 9.) The 

violation was later abated by placing a guard on the belts. 

Inspector Manis considered that this violation was 

reasonably likely to result in a permanently disabling injury 

to at least one person. He came to this c onclusion bec aus e: 

[ f)rom time to time this is a wet area. From time to 

time because of the drive and lubrication there are 

slippery conditions from grease and oil there. A 

person could accidently, or he could back up into a 

belt or he could fall and accidently stick his arm. 

If he fell, his whole body could go into that drive. 

A fatal . [sic) would occur there if he fell into 

it. But if h~ just ... it's more like an arm or 

fingers could ·be dismembered there very easily. 

(Tr. 55.) 

The next citation was issued when the inspector was in the 

concrete sand tunnel. Near the middle of the tunnel he noticed 

that several light bulbs were out. He concluded that there was 

not sufficient illumination in the tunnel. Accordingly, he 

issued Citation No. 3604130 for a violation of Section 56.17001, 

30 C.F.R. § 56.17001. (Pet. Ex. 10.) The citation was abated by 

replacing the light bulbs. 

The final citation in this case was issued at the multi-Vbelt drive. Inspector Manis determined that the front section of 

the belt drive motor had openings that were not guarded, exposing 

inside parts, armature, brushings and slip rings, to contact. He 

issued Citation No. 3604131 for a violation of Section 

56.14107(a). (Pet. Ex. 11.) The violation was abated by· placing 

a guard over the openings. 

19 99 
FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Citation No. 3604123 

Section 50.30(a) requires that "[e)ach operator of a mine in 

which an individual worked during any day of a calendar quarter 

shall complete a MSHA Form 7000-2 . • . and submit the original 

to the MSHA Health and Safety Analysis Center . • • within 15 

days after the end of each calendar quarter." It further 

requires that "(e)ach operator shall retain an operator's copy at 

the mine off ice nearest the mine for 5 years after the submission 

date." 

It is undisputed that Brown Brothers MSHA Form 7000-2 for 

the first quarter of 1993 was not received by the MSHA Health and 

Safety Analysis Center within 15 days after the end of the 

calendar quarter. It is also undisputed that Greg Brown could 

not find the operator's copy of the report on the day of the 

inspection. Accordingly, I conclude that the Respondent did not 

file the form as required, and, thus, violated Section 50.30(a) . 4 

Citation No. 3604124 

Section 5.6.16005 requires that " (c ]ompressed and liquid gas 

cylinders shall be secured in a safe manner." In this case, the 

evidence indicates that two cylinders were standing in the mine 

shop and not secured in any manner. No one was present in the 

shop at the time. While the inspectors believed that the 

cylinders were full, that is not necessary to establish a 

violation of this regulation. Laurel County sand and Gravel, 

Inc., 15 FMSHRC 2380, 2383 (Judge Weisberger, November 1993); 

Tide Creek Rock Products, 4 FMSHRC 2241 (Judge Koutras, December 

1982). Consequently, I conclude that it has been estaQlished 

that Brown Brothers violated the regulation as alleged. 

4 I give no weight to Greg Brown's testimony that he found 

the operator's copy during an inspection "a couple of month's" 

prior to the hearing because the "found" copy was not offered at 

the hearing and there is no way of knowing whether the copy found 

was one mailed in a timely manner or, for instance, the one 

prepared by Mr. Brown to abate the citation. 

2000 
Citation No. 3604125 

Section 56.12032 provides that "[i]nspection and cover 

plates on electrical equipment and junction boxes shall be kept 

in place at all times except during testing or repairs·." It is 

unchallenged that at the time of the inspection, the cover for 

the switch box for the tank belt conveyor was lying on the 

ground. There was no evidence of testing or repairs being 

performed on it, nor does the Respondent claim that such was the 

case. Therefore, I conclude that Brown Brothers violated Section 

56.12032 of the Regulations. 

Inspector Manis also concluded that this violation was 

"significant and substantial." A "significant and substantial" 

(S&S) violation is described in Section 104(d) (1) of the Act as 

a violation "of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard." A violation is properly 

designated S&S "if, based upon the particular facts surrounding 

that violation, there exists a reasonable likelihood that the 

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

reasonably serious nature." Cement Division. National Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC 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 

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. 

See also Austin Power. Inc. v. Secretary, 861 F.2d 99, 103-04 

(5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 (December 1987) 

(approving Mathies criteria). 

In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 

1129 (August 1985), the Commission stated further as follows: 

2001 
We have explained further that the third element of the 

Mathies formula 'requires that the Secretary establish 

a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury.• 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance with the 

language of section 104(d)(l), it is the contribution 

of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining 

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

Steel Mining Company. Inc., 6 FMSHRC 1573, 1574-75 

(July 1984). 

This evaluation is made in terms of "continued normal mining 

operations." U.S. Steel Mining Company. Inc., 6 FMSHRC 1573, 

1574 (July 1984). The question of whether a particular violation 

is significant and substantial must be based on the particular 

facts surrounding the violation. Texasgulf, Inc ., 10 FMSHRC 498 

(April 1988); Youqhiogheny & Ohio Coal Company, 9 FMSHRC 1007 

(December 1987). 

As is frequently the case, the question of whether or not 

this citation is S&S turns on the third element of the Mathies 

test. I have already concluded that a violation occurred and 

there can be little doubt that by leaving the cover off of the 

switchbox there was a measure of danger to safety, in this 

instance the possibility of electrocution. Nor can there be any 

question that electrocution is reasonably likely to result in an 

injury of a reasonably serious nature. However, it is not as 

readily apparent that the hazard contributed to is reasonably 

likely to result in an injury. 

The evidence indicates that the switchbox was located on 

a post which was in a direct line from the shop to a tunnel; a 

natural walkway between the two. The box was positioned about 

chest high on the post so that it would be easily accessible, 

intentionally or by accident, by anyone walking past. The leads 

coming into the box were always charged, and not completely 

insulated or shielded. Based on these facts, I conclude that 

there was a reasonable likelihood leaving the cover off of the 

switchbox would result in an injury, i.e. electrocution. 

Accordingly, I conclude that this violation was "significant and 

substantial." 

200 2 
Citation Nos. 3604126 and 3604127 

Section 56.14109 provides that "[u]nguarded conveyors next 

to the travelways shall be equipped with" emergency stop devices 

or railings. It is uncontested that the unguarded belt conveyor 

next to the walkway in the concrete sand tunnel and the unguarded 

conveyor belt next to the walkway in the mortar sand tunnel had 

neither emergency stop devices nor railings. Hence, I conclude 

that these were violations of the regulation. 

Citation No. 3604128 

Section 56.14112{a) (1) states that: "{a) Guards shall be 

constructed and maintained to--(1) Withstand the vibration, 

shock, and wear to which they will be subjected during normal 

operation." It is undisputed that at the time of the inspection 

the back section of the tail pulley guard for the mortar sand 

belt conveyor was not in place. It apparently had been allowed 

to decay to such an extent that most of it either fell off or 

disintegrated. Clearly, it was not maintained sufficiently to 

keep .it from wearing out. Thus, I conclude that this was a 

violation of the regulation. 

Citation No. 3604129 

Section 56.14107(a) requires that "(m]oving 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." Greg Brown admitted at the hearing 

that the multi-V-belt drive for the sand pump was not guarded at 

the time of the inspection. The belt was in ope~ation at the 

time and was located at the foot of a stairway. Accordingly, 

I conclude that Brown Brothers violated this regulation. 

Inspector Manis considered this violation to be "significant 

and substantial." Applying the Mathies criteria and taking into 

consideration that this was a large belt drive, located at the 

foot of a stairway and along an obvious walkway, in an area that 

could become slippery from water or lubrication, which operated 

at a high rate of speed, I agree with the inspector and conclude 

that the violation was "significant and substantial." 

2003 
Citation No. 3604130 

section 56.17001 states that "[i]llumination sufficient to 

provide safe working conditions shall be provided in and on all 

structures, paths, walkways, stairways, switch panels, loading 

and dumping site~, and work areas." The regulation does not 

provide any insight as to how one determines whether the 

illumination is sufficient to provide safe working conditions. However, in a case concerning a predecessor of this regulation, 

30 C.F.R. S 56 . 17-1, which was identically worded, the Commiss ion 

said that "[rJesolution [of what constitutes sufficient 

illumination] requires a factual determination based on the 

working conditions in a cited area and the nature of the 

illumination provided." Capita l Aggregates. Inc., 3 FMSHRC 1388 

(June 1981). 

Inspector Manis testified that "near the middle of the 

tunnel there were several light bulbs that were failing, that 

were either burned out or they were shorted, they were. not 

burning" and that he did not believe that there was sufficient 

illumination in the tunnel. (Tr. 58 . ) He also testified that it 

was "[n]ot totally dark; no, sir. There were lights burning in 

different areas, but in just one area near the middle of the 

tunnel, there were several lights that were out, and I couldn't 

see that well myself passing through there," although he "could 

see the belt." (Tr. 91.) Inspector Verdier stated only "[i]n my 

opinion there was not sufficient illumination." (Tr. 103 . ) On 

the other hand, Greg Brown testified that, in his opinion, there 

was sufficient illumination "for me to work in it." (Tr. 131.) 

There is not enough information to make a factual 

determination as to whether the illumination was sufficient or 

not. Consequently, I conclude that the Secretary has not 

sustained his burden of establishing a violation of this 

regulation and will vacate the citation. 

Citation No. 3604131 

This citation alleges another violation of Section 

56.14107(a), the requirements of which are set out under Citation 

No. 3604129 above. It is undisputed that the multi-V-belt drive 

motor for the sand pump was not guarded. The Respondent knew 

that it was supposed to be guarded, and, if fact, had guarded 

it prior to moving it to a new location. Therefore, I find a 

violation of the regulation. 

CIYIL PENALTY ASSESSMENTS 

section llO(i) of the Act, 30 u.s.c. S 820(i), sets out six 

criteria to be considered in determining an appropriate civil 

2004 
penalty. It is the judge's independent responsibility to 

ascertain an appropriate penalty, based on these criteria, and he 

is not bound by the proposal of the Secretary. Sellersburg Stone 

Company v. Federal Mine Safety and Health Review commission, 736 

F.2d 1147, 1151-52 (7th Cir. 1984). 

In connection with these criteria, the parties have 

stipulated that Brown Brothers is a small sand mine operator with 

nine to ten employees; that payment of the proposed civil penalty 

assessment will not adversely affect the Respondent's ability to 

continue in business; that Brown Brothers had received two prior 

citations during the period of February 11, 1989 through February 

10, 1991; and that the citations in this proceeding were timely 

abated by the Respondent in good faith. (Tr. 4.) 

In his brief, the Secretary has recommended that I impose a 

penalty of $250.00 for the violation in Citation No. 3604123 

(failing to file MSHA Form 7000-2), rather than the $50.00 

originally proposed by the Secretary, because Brown Brothers has 

received five prior citations for the same violation. While this 

may be a germane reason for increasing the penalty in some 

instances, it is not in this case. 

Although Brown Brothers does indeed have five prior 

violations of Section 50.30(a), the most recent one, previous to 

this case, was on January 9, 1986. (Pet. Ex. 2.) There is no 

evidence in this case that Brown Brothers has reverted to its 

past practice of frequently failing to file the form or that this 

failure was anything other than an oversight. Accordingly, I 

concur with the inspector that this resulted from moderate 

negligence and assess a penalty of $50.00. 

The Secretary has also recommended a penalty of $250.00 for 

the Respondent's failure to secure its compressed and liquid gas 

cylinders because Carl Brown testified at the hearing that the 

state in which the inspector found the cylinders was the way they 

used them. To back up his point, he submitted photographs of 

some cylinders, one of which clearly showed that the cylinders 

were unsecured. (Resp. Exs. 2 and 3.) 

This argument is appealing, particularly in view of the fact 

that Brown Brothers• main defense is that they have been in 

business for 53 years and have never had an accident, therefore, 

they do not need government regulation. (Resp. Ex. 1.) However, 

I note that if Brown Brothers does always keep its cylinders 

unsecured, as indicated, they have been very lucky because they 

have never before been cited for this violation. (Pet. Ex. 2.) 

Consequently, I will concur with the Secretary's original 

assessment and order a penalty of $50.00 for this violation. 

The Secretary suggests penalties of $250.00 each for the 

failure to have an emergency stop device or railings on the 

20 05 
conveyor belts in the sand tunnels. This proposal is based on 

the testimony of the inspector that he told Greg Brown on a 

previous inspection that such devices were required. Therefore, 

according to the Secretary, the failure to have installed them 

was at a minimum highly negligent. on the other hand, Greg Brown 

said that he had understood that installing an alarm which went 

off before the belt began moving took care of the problem. 

There is nothing in the evidence to show that Mr. Brown 

deliberately misunderstood the inspector. Further, the fact that 

he did take some action, installing the alarm system, removes 

these violations from the high negligence category. Accordingly, 

I will impose a penalty of $50.00 for each of these violations. 

The Secretary urges a penalty of $1110 .00 for failing to 

guard the multi-V-belt drive on the barge because the drive had 

been guarded at its old location, the Respondent knew that it had 

to be guarded at its new location, and it had not been re-guarded 

because the Respondent thought that it was more important to meet 

customer demands. I agree with the Secretary's counsel that this 

indicates a greater degree of negligence than the moderate level 

assessed by the inspector. 

However, I do not agree that this amounts to "reckless 

disregard" in view of the testimony that not only was the 

Respondent interested in providing sand for its customers, but it 

was also constantly having to change the pulleys and readjust the 

belts to get the pump operating properly in the new location. 

(Tr. 131, 149.) Therefore, I find the respondent to have been 

highly negligent, but not "reckless," in a situation that could 

reasonably have been expected to result in serious injury to an 

employee and assess a penalty of $500.00. 

The Secretary requests a penalty of $500.00 for failing to 

guard the motor on the multi-V-belt drive on the grounds that the 

Respondent had guarded it in its old location and knew that it 

had to be guarded in its new location. The Secretary argues that 

this was the result of the Respondent's "reckless disregard." I 

do not concur. The evidence indicates that there was little 

likelihood of an injury occurring. Consequently, while I find 

that the Respondent was highly negligent in not guarding the 

motor, I do not find that the failure to immediately replace this 

guard amounted to "reckless disregard." I will assess a penalty 

of $150.00 for this violation. 

The Secretary has not made any new recommendations with 

respect to Citation Nos. 3604125 and 3604128. Having considered 

the penalty criteria, I conclude that the $136.00 and $50.00 

penalties, respectively, originally proposed by the Secretary are 

appropriate. 

2006 
ORDER 

Citation No. 3604130 is VACATED and DISMISSED. Citation 

Nos. 3604129 and 3604131 are MODIFIED by increasing the level of 

negligence from "moderate" to "high" and are AFFIRMED as 

modified. Citation Nos. 3604123, 3604124, 3604125, 3604126, 

3604127 and 360412·s are AFFIRMED. 

Brown Brothers Sand Company is ORDERED to pay, by single 

check or money order for the entire amount, civil penalties in 

the amount of $1,036.00 for these violations within 30 days of 

the date of this decision. 5 on receipt of payment as ordered, 

these proceedings are dismissed. 

Distribution: 

cl. ~~""1}1.,~ T. Todd Hod don 

Administrative Law Judge 

Michael K. Hagan, Esq., Office of the Solicitor, U.S. Department 

of Labor, 1371 Peachtree St., N.E., Room 339, Atlanta, GA 30367 

{Certified Mail) · 

Mr. Steve Brown, Partner, Brown Brothers Sand Company, Highway 90, 

Box 82, Howard, GA 31039 (Certified Mail) 

/lbk 

5 It appears that in a previous case heard by me [Brown 

Brothers Sand Company, 16 FMSHRC 452 (February 1994)), the 

Respondent paid the assessed penalty in loose coins. (Tr. 13-

15.) If, by such actions, Brown Brothers intended to demonstrate 

its contempt for the Commission, as suggested by the Secretary, 

it is advised that continued gestures of this nature may well 

reflect adversely on any consideration of its good faith in 

future appearances before the Commission. 

2 007 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

520 3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~3EP 2 8 1994 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petiti oner 

v. 

THE PIT, 

Re spondent 

. . CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 94-97-M 

A.C. No . 24-01958-05502 

Docket No. WEST 94-40-M 

A.C. No . 24-01958-05501 

DECISION 

Appearances: Kristi Floyd, Esq., Office of the Solicitor, 

u. s. Department of Labor, Denver, Colorado, 

for Petitioner; 

Alfred J. Luciano, Eureka, Montana, Pro Se, 

for Respondent. · 

Overview 

These cases arise out of two inspections by MSHA 

Representative Ronald Goldade, of a sand and gravel pit located 

on a ranch near Eureka, Montana, operated by Alfred Luciano and 

his family {Tr. 8, 197, 223-24) . The firs·t inspection occurred 

in September 1992 and the second in September 1993. At neither 

inspection did Inspector Goldade observe the production of sand 

and gravel or the production of crushed rock {Tr. 22-23, 31-32, 

48, 62). However, based on his observations, Goldade issued . Respondent six citations in 1992 and eight in 1993, most of which 

allege a failure to guard moving machine parts. 

Respondent does not dispute the factual allegations 

contained in the citations {Jt. Exh. 1, Stipulation I 5). Its 

primary contention is that it was not subject to the Mine Act at 

the time of either inspection because it was engaged in setting 

up and adjusting its equipment rather than production (Tr. 9-10). 

The company also contends that the 1993 citations were 

issued to the wrong business entity. In 1992 the site was 

operated by "The Pit", a business owned by Alfred Luciano's 

Dan, {Tr. 140-42, Exh. G-21). By 1993, Respondent contends 

site was operated by the JFL trust, which was set up by 

2008 

son, 

the 
Alfred Luciano for his wife and children (Tr. 223). Dan Luciano 

had sold his equipment' to the trust and worked for it at the time 

of the 1993 inspection (Tr. 142-43). 1 

Respondent also argues that, because it was not producing, 

it was not engaged in or affecting interstate commerce. However, 

since it was prepa~ing for activities that clearly would affect 

commerce, I conclude that Respondent was subject to the commerce 

clause at the time of the inspections, See, e.g .. Cyprus 

Industrial Minerals Co. v. FMSHRC, 664 F. 2d 1116 (9th Cir. 1981) 

[drilling of exploratory shaft in search of commercially 

exploitable deposits is subject to Act]; Godwin v. OSHRC, 

540 F.2d 1013, 1015, (9th Cir. 1976). 

Another factor leading me to the conclusion that 

Respondent's operations were subject to the commerce clause is 

the use of equipment and supplies by Respondent which originated 

outside the state of Montana (E.g. Jt. Exh-1, stipulation# 2). 

Moreover, Respondent advertised its product on a public highway 

only a few miles south of the Canadian border (Tr. 15, 33-35). 

I also reject Respondent's primary contention that it was 

not subject to the Mine Act because it had not started production 

at the time of either inspection. Section J(h) (1) of the Federal 

Mine Safety and Health Act, 30 u.s.c. § 802(h) (1), defines a 

"coal or other mine" as: 

(A) an area of land from which minerals are extracted 

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

with workers underground, (B) private ways and roads 

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

underground passageways, shafts, slopes, tunnels and 

workings, structures, facilities, equipment, machines, 

tools, or other property ••. on the surface or 

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

from the work of extracting such minerals from their 

natural deposits in nonliquid form ••• or used in, or to 

be used in, the milling of such minerals •.• (emphasis 

added). 

The plain language of the Act, therefore, makes it clear 

that equipment that is located at a site where mining will take 

place, and will be used in the extraction of minerals, or the 

milling of minerals, is subject to MSHA jurisdiction--even if 

mining has not commenced. Cyprus Industrial Minerals. supra., 

s HM Coal Company, 11 FMSHRC 1154, 1173-74 (ALJ, June 1989). 

Moreover, semantics aside, it logically follows from the general 

1 Additional equipment, most notably a Cedar Rapids brand 

crusher, had been brought to the site by the trust in the period 

between the two inspections (Tr. 33-34). 

2009 
scheme of Federal regulation of occupational safety and health, 

that the installation and adjustment of equipment at a mine site 

is subject to the Act prior to the commencement of production. 

The Federal government regulates job safety and health 

primarily under two statutes, the Occupational Safety and Health 

Act for non-mining industries and the Mine Safety and Health Act 

for mining. The essential purpose of these statutes is to 

prevent occupational injuries and illnesses at all stages of 

economic activity, rather than simply those at which goods are 

actually produced, or services rendered. These statutes are 

intended to protect employees from injury whether they are 

setting up equipment or engaged in production. 

Thus, I conclude that Congress intended that employees be 

protected so far as is possible, either by OSHA or MSHA in preproduction activities which may pose occupational hazards. 

Furthermore, the Mine Act clearly establishes MSHA jurisdiction 

over employees who are setting up equipment at a worksite at 

which mining is to take place in the future. 

The last sentence of section 3(h) of the Mine Act provides: 

In m~king a determination of what constitutes mineral 

milling for purposes of this Act, the Secretary [of 

Labor] shall give due consideration to the convenience 

of administration resulting from the delegation to one 

Assistant Secretary (of Labor) of all authority with 

respect to the health and safety of miners employed at 

one physical establishment. 

Thus, Congress did not intend that the working conditions of 

employees at a worksite be subject to OSHA during one phase of 

economic activity, and subject to MSHA at another. Even more 

importantly, it did not intend that employees or miners be 

unprotected from hazards during pre-production activities. 

The citations in both inspections were properly issued to "The 

Pit". 

Prior to the September 1992 inspection, a legal identity 

report was filed with MSHA designating "The Pit" as the name of 

the operator of the sand and gravel mine on the Luciano ranch 

(Tr. 18-19, Exh • . G-2) • When Inspector Goldade returned to the 

mine in September 1993, no changes to the legal identity form had 

been filed with MSHA (Tr. 29-30). Goldade informed 

Alfred Luciano on September 2, 1993, that the legal identity form 

had to be updated if ownership of the mine had changed (Tr. 65). 

Mr. Luciano either told Goldade that he did not wish to update 

the ID form, or that the citations should be issued to "The Pit" 

in order not to confuse matters (Tr. 65-66). 

2010 
MSHA's regulations at 30 C.F.R S 41.12 require an operator 

to notify the agency of any changes in the information contained 

in the legal identity form within 30 days. Given the fact that 

Respondent did not comply with the regulation and that 

Mr. Luciano represents that he told Inspector Goldade .that the 

1993 citations should be issued to "The Pit", I conclude that 

Respondent is estopped (legally precluded) from claiming that 

these citations were issued to the wrong entity. 

The individual citations 

The parties signed and introduced stipulations, which 

included the following paragraph, number 5: 

.•• the citations are admitted into evidence for the 

truthfulness and relevancy of the facts and 

designations contained therein. The sole issue 

remaining with regard to the citations is whether or 

not the plant was in operation at or about the time of 

the inspections. This issue alone will determine 

whether the alleged violations occurred (Jt. Exh-1). 

While the question of whether the plant was in operation has 

no relevance to the non-machine guarding citations, it is 

relevant to the 10 citations issued alleging a violation of 

30 C.F.R S 56.14107(a). The standard provides that: 

Moving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, 

drive, head, tail, and takeup pulleys, flywhee l s, 

couplings, shafts, fan blades, and similar moving parts 

that can cause injury. 

A related regulation at 30 C.F.R § 56.14112 (b) states that: 

Guards shall be securely in place while machinery is 

being operated, except when testing or making 

adjustments which cannot be performed without removal 

of the guard. 

During presentation of its case, Respondent elicited 

considerable evidence questioning whether it would have been able 

to guard the cited moving machine parts during the set-up, 

testing, and adjustment of its equipment. Contract Electrician 

John Dunster testified that it was, at times, impossible to take 

his strobe light readings with guards in place (Tr. 100). 

Contract Welder Carl Hammond testified that, to adjust 

Respondent's conveyor belts, the guards for those belts had to be 

removed in places (Tr. 125-26, 129-30). 

on the other hand, Inspector Goldade, who had experience 

setting up similar equipment as a contract welder in the 1980s 

2011 
contends that it can be set-up, adjusted and aligned with the 

guards in place (Tr. 93-94). Although the burden of proving that 

compliance with an MSHA regulation is impossible is on the 

operator, Climax Molybdenum Co., 2 FMSHRC 1884, 1886 

(ALJ July 1980), the standard, in this instance, recognizes that 

guards cannot be kept in place in certain circumstances. 

Given the fact that the testimony of Respondent's witnesses 

is more specific regarding the facts in this case regarding the 

feasibility of guarding the company's equipment, I credit those 

witnesses. Welder Carl Hammond testified that some areas could 

be guarded prior to the inspection and others could not (Tr. 125-

30). Since Inspector Goldade's testimony that set-up and 

adjustment can be done with guards in place is not tied to the 

specific circumstances of the citations, I find that the 

preponderance of the evidence is that these areas could not have 

been guarded at the time of the inspections. The fact that 

Respondent did guard the cited areas after the inspection does 

not necessarily indicate that the company could have performed 

the set-up and adjustment work of September 1, 1993, or the 

testing of September 17, 1992, with guards in place. 2 

The preponderance of the evidence also supports Respondent's 

contention that its equipment was not run for purposes other than 

testing or making adjustments at the time of and prior to the 

inspections (Tr. 121, 153, 164-68). As the evidence thus fails 

to establish that guarding could have been maintained on these 

occasions, I vacate citations 4122660, 4122661, 4122662, 4122663, 

4122664, 4331764, 4331765, 4331766, 4331767 and 4331768. 

The issue of whether Respondent's plant was operating has no 

bearing on the validity of the remaining 4 citations. Thus, 

pursuant to the stipulation of the parties, these citations are 

affirmed. 

Assessment of Civil Penalties 

Section llO(i} of the Act provides that the Commission shall 

assess civil monetary penalties after giving consideration to the 

operator's history of previous violations, the size of the 

operator's business, the negligence of the operator, the gravity 

of the violations, the good faith of the operator in ·achieving 

rapid compliance after notification of the violation, and the 

2 For example, MSHA verified that guards had been installed 

on September 22, 1993, when conditions may have been very 

different than on September 1, 1993, see, e.g., Citation page 

4331764-1, block 12. 

201 2 
effect of the penalty on the operator's ability to stay in 

business. The parties' stipulation addresses three of these 

factors. 

The proposed penalties of $917 for the 14 violations will 

not affect Respondent's ability to stay in business (Jt. Exh.-1, 

paragraph# 7). Respondent demonstrated good faith in abating 

the violations (Jt. Exh.-1, paragraph 8), and is a small operator 

(paragraph 9). 

Exhibit G-1 shows no citations issued to Respondent other 

than those at issue in these proceedings. Thus, the most 

critical factors to assess are the negligence of the operator and 

the gravity of the violations. 

I assess a $25 penalty for citation 4122665, which alleges a 

violation of 30 C.F.R S 56.4101 in that the area of the mine site 

where diesel fuel and gasoline was stored, was not posted with an 

appropriate warning sign of no smoking and open flame on 

September 17, 1992. As there is no evidence as to smoking or 

open flames in this area, I view the gravity of the violation 

fairly low. There is no evidence in the record regarding 

negligence. 

A $60 penalty is assessed for citation 4331760, which 

alleges a violation of 30 C.F.R S 56.9300(a) on September 1, 

1993, in that no berm or guardrail was provided on the outside 

edge of an elevated ramp used by a front-end loader (Exh. G-2). 

The gravity of injuries that are likely to result, if such a 

violation produced an injury, warrants this amount. The record 

establishes that the cited ramp was used by a front-end loader in 

the c9nstruction of Respondent's equipment (Tr. 132-33). 

A $100 penalty is assessed for citation 4331763. That 

citation alleged a violation of 30 C.F.R S 56.12025, in that a 

ground circuit was not provided for a 220-volt switch box. The 

record establishes that at least a temporary ground could have 

been maintained (Tr. 100-102). Therefore, Respondent's 

negligence warrants a civil penalty of this magnitude. Finally, 

I assess a $25 penalty for Respondent's failure to comply with 

section 56.18002(b) [no workplace examination by a competent 

person] as specified in citation 4331770. 

2013 
ORDER 

The citations here1n are affirmed and Respondent 3 is 

ORDERED to pay the $210 in total penalties within 30 days of this 

decision. 

Distribution: 

Administrative 

A~ ~~ Law Judge 

703-756-6210 

Kristi Floyd, Esq., Office of the Solicitor, u. s. Department of 

Labor, 1999 Broadway, Suite # 1600, Denver, co 80202-5716 

(Certified Mail) 

Ms. Faye Williams, Office Manager; Alfred J. Luciano, Trustee; 

JFLI TRUST dba The Pit, P. o. Box 1050, Eureka, MT 59917 

(Certified Mail) 

/jf 

3 Regardless, of whether "The Pit" still exists as a 

business entity, I expect that these penalties be paid, either by 

the JFL Trust, or by Alfred or Dan Luciano in some other 

capacity. 

2014 
OFFICE OF ADMINISTRATIVE LAW Jll>GES 

2 SKYLINE, 10th FLOOR 

5203 LEESIURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 2 9 1994 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 94-427 

A.C. No. 15-17071-03531 

v . . . 

MAGIC COAL COMPANY, 

Respondent 

: Docket No. KENT 94-446 

: A.C. No. 15-17071-03532 

Appearances: 

Before: 

. . 

. . 

. . 

Docket No. KENT 94-447 

A.C. No. 15-17071-03533 

Magic Mine 

PECISIONS 

Brian W. Dougherty, Esq. , Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, 

for the Petitioner; 

William D. Donan, Esq., William R. Thomas, Esq., 

Madisonville, Kentucky, for the Respondent. 

Judge Koutras 

Statement of the Proceedings 

These proceedings concern 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(c), seeking civil penalty assessments for eight (8), alleged 

violations of certain mandatory safety standards found in 

Parts 48 , and 75, Title 30, Code of Federal Regulations. 

Hearings were held in Evansville, Indiana, and the parties 

appeared and participated fully therein. The parties informed 

me that they proposed to settle these matters, and their 

arguments in support of their proposals were made on the record. 

Issues 

The issues presented in these proceedings include the fact 

of violation, whether some of the violations were "significant 

and substantial", and the appropriate civil penalty assessments 

to be made for the violations. Additional issues raised by the 

parties are identified and disposed of in the course of these 

decisions. 

2015 
Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 

1977; 30 u.s.c. § 301 ~ ~· 

2. Sections llO(a) and llO(i) of the Act. 

3. Commission Rules, 29 C.F.R. § 2700.1 ~§.@SI· 

Stipulations 

The parties stipulated to the following (Tr. 5-8; Joint 

Exhibit 1): 

1. Magic Coal Company is subject to the Mine Act. 

2. Magic Coal Company and its Magic Mine have an affect 

upon interstate commerce within the meaning of the Mine Act. 

3. Magic coal Company and its Magic Mine are subject to the 

jurisdiction of the Commission, and the presiding judge has 

the authority to hear and decide these cases. 

4. Reasonable penalty assessments in these cases will not 

affect the respondent's ability to remain in business. 

The parties further stipulated to the admissibility of an 

MSHA computer printout reflecting the respondent's prior history 

of violations for the 24 months period prior to the issuance of 

the citations in these proceedings (Tr. 7-8; Exhibit G-1). After 

the review of the information presented, I conclude and find that 

the respondent's prior compliance record does to warrant any 

additional penalty increases in these proceedings. 

The parties also agreed that the respondent is a small mine 

operator, and the petitioner's pleadings reflect an annual coal 

production of 76,032 tons (Tr. 10-11). 

Upon review of all of the citations and the order issued 

in these cases, I conclude and find that the respondent 

demonstrated rapid good faith compliance in abating all of 

the cited conditions or practices in these proceedings. 

KENT 94-427 

Section 104(a) "S&S" citation No. 3859223, issued on 

November 29, 1993, cites an alleged violation of 30 C.F.R. 

I 75.503, and the cited condition or practice states as follows: 

2016 
The 484 S&S scoop being used in the 4th South panel 

return air course was found to have an opening in 

excess of .004 inches in the main breaker (electrical) 

panel·. 

Section 104(a) non-"S&S" Citation No. 3859224, i•sued on 

November 30, 1993, cites an alleged violation of 30 C.F.R. S 75.1101-23(c), and the cited condition or practice states as 

follows: 

A violation exists in that practice fire drills have 

not been conducted as required. According to the 

record book kept at the mine, drills were last 

conducted 8-30-93 making it 92 days from today's date 

of 11-30-93. Drills are required at least once every 

90 days. 

Section 104(a) non-"S&S" Citation No. 3859226, issued on 

November 30, 1993, cites an alleged violation of 30 C.F.R. 

§ 75.807, and the cited condition or practice states as follows: 

The 7200 high voltage cable provided to the power 

center which supplies power to the continuous miner on 

the #1 unit (MMU #001-0) was not guarded where men are 

required to pass under it so as to connect couplers 

from trailing cables which are connected to a second 

power center on the #1 unit. 

Petitioner's counsel presented arguments on the record in 

support of the proposed settlement of these citations. He stated 

that the respondent has agreed to pay the .fY.ll amount of the 

proposed penalty assessments, and the respondent's counsel 

confirmed that this was the case and agreed to the proposed 

settlement of the violations. 

l(ENT 94-446 

Section 104(a) non-"S&S" citation No. 3859237, issued on 

December 21, 1993, cites an alleged violation of 30 C.F . R. 

§ 75.1702, and the cited condition or practice states as follows: 

The approved smoking program is not being followed in 

that a record of the search is not recorded for the. 2nd 

shift in the record book being kept at the mine. The 

approved plan page 1 item 4 requires the record of the 

smokers search be kept. The last recorded date for 

this crew is 12-13-93. 

Section 104(a) "S&S" Citation No. 3859238, issued on 

December 21, 1993, cites an alleged violation of 30 C.F.R. 

S 75.606, and the cited condition or practice states as follows: 

2017 
A violation was observed on the #1 unit in that the 

trailing cable of the Joy 21SC shuttle car S/N 

ET 12600, was not adequately protected to prevent 

damage by mobile equipment. The cable showed evidence 

of having been driven over. Tire tracks were observed 

over the cable and the trailing cable was recessed into 

the mine floor. This portion of the cable was located 

in the crosscut ·between the #4 and #5 return room, one 

crosscut inby the tailpiece. 

Section 104(a) "S&S" Citation No. 3859239, issued on 

December 22, 1993, cites an alleged violation of 30 C.F.R. 

§ 75.370(a) (1), and the cited condition or practice states 

as follows: 

The velocity of air along the 4th South panel conveyor 

belt at spad #550 was found to be moving at a rate of 

30 feet per minute when measured using mechanical 

smoke. The approved plan requires no less than 50 ft. 

per/min. A low-level carbon monoxide detection system is utilized as an early warning fire detection system 

along the belt line system for this mine. 

Section 104(a) "S&S" citation No. 3859240, issued on 

December 22, 1993, cites an alleged violation of 30 C.F.R. 

§ 75.370(a) (1), and the cited condition or practice states as 

follows: 

When mechanical smoke was released no perceptible air 

movement was found along the 2nd West belt conveyor 

between the #46 crosscut and #47 crosscut, approx. 150 ft, inby the 2nd West head drive. The approved 

ventilation plan requires the air to move in an inby 

direction at a velocity of no less than 50 ft. per. 

min., or no greater than 300 ft. per. min., and have a 

definite and distinct movement. 

Petitioner's counsel presented arguments on the record in 

support of the proposed settlement of these citations. He stated 

that the respondent has agreed to pay the .t:Y.l.l. amount of the 

proposed penalty assessments, and the respondent's counsel 

confirmed that this was the case and agreed to the proposed 

settlement of the violations. 

JENT 94-447 

This case concerns a proposed civil penalty assessment of 

$2,600, for an alleged violation of mandatory training standard 

30 c.F.R. § 48.S(a), as stated in withdrawal Order No. 3856665, 

issued by MSHA Inspector Robert H. Gary on October 18, 1993, 

pursuant to section 104(g) (1) of the Act. The order states as 

follows: 

2018 
The following underground miners employed at the Magic Mine 

have not received the requisite safety training as stipulated in 

Section 115 of the Act: 

1) Sam Atkins, Last received 9-11-92. 

2) R.C. Coakley. 8-6-92. 

3) Steve Parks. 1-28-92. 

4) Willoughby c. Pryor. 9-11-92. 

5) Hubert Hunt. 1-28-92. 

6) Tony Lowe. 8-6-92. 

7) Lowman Barnes. 1-28-92. 

8) Donald Daniels. 1-10-92. 

These miners have not received annual refresher 

training at any time during the last calendar month of 

the miner's annual refresher training cycle. In the 

absence of s~ch training these miners are declared to 

be a hazard to themselves and others and are to be 

withdrawn immediately and/or not allowed to enter the 

mine until they have received the required training. 

The order was terminated on October 25, 1993, after the 

cited miners received the requisite training, and the required MSHA Forms 5000-23, were issued and reviewed by the inspector. 

Petitioner's counsel stated that the parties agreed to 

settle this matter, and that the respondent has agreed to pay a 

penalty assessment of $1,700. MSHA has agreed to modify the 

order from "S&S" to non-"S&S". In support of this proposal, 

MSHA's counsel stated that the cited miners were all experienced miners and that the evidence he developed. in preparation for the 

trial would not support a finding of a reasonable likelihood of 

an injury. 

The respondent's representative and mine owner, William 

Donan, confirmed that all of the cited miners were experienced 

miners who had received training under an approved state training 

plan, and were scheduled for retraining under that plan by the 

Kentucky State Bureau of Mines on the day the order was issued. 

Mr. Donan further stated that he was advised by the state mine 

inspectors that he was in compliance with state law regarding 

ainer training and retraining. 

After careful review of all of the pleadings and arguments 

presented by the parties in these proceedings, including the six 

2019 

.·: 
statutory penalty assessment criteria found in section llO(i) of 

the Act, I rendered bench decisions approving the settlement 

dispositions pursuant to Commission Rule 31, 29 C.F.R. § 2700.31. 

My bench decisions are herein reaffirmed, and I conclude and find 

that they are reasonable and in the public interest. 

ORDER 

In view of the foregoing, IT IS ORDERED that the following aection 104(a) citations ARE AFFIRMED as issued, and the 

respondent IS ORDERED to pay the proposed penalty assessments 

in settlement and satisfaction of the violations. 

Pocket No. KENT 94-427 

Citation No. 

3859223 

3859224 

3859226 

l2Ail 

11/ 29/ 93 

11/ 30/93 

11/ 30/ 93 

Pocket No. KENT 94-446 

Citation No. 

3859237 

3859238 

3859239 

3859240 

J2All 

12/ 21/ 93 

12/ 21/ 93 

12/ 22/ 93 

12/ 22/ 93 

Pocket No. KENT 94-447 

30 C.F.R. Section 

75.503 

75.1101-23(c) 

75.807 

30 C.F.R. Section 

75.1702 

75.606 

75.370(a) (1 ) 

75.370(a) (1) 

Assessment 

$111 

$50 

$50 

Assessment 

$50 

$50 

$189 

$189 

Order No. ~ 30 C.F.R. section Assessment 

3856665 10/ 18/ 93 48,8(a) $1,700 

IT IS FURTHER ORDERED that section 104(g) (1) "S&S" Order 

No. 3856665, IS MODIFIED to a section 104(g) (1) non-"S&S" order, and as modified IT IS AFFIRMED. 

The respondent shall pay the aforementioned civil penalty 

assessments to the petitioner (MSHA) within thirty (30) days of 

the date of these decisions and Order, and upon receipt by MSHA, 

these proceedings are dismissed. 

~.~ras ~ Administrative Law Judge 

2020 
Distribution: 

Brian w. Dougherty, Esq., Office of the Solicitor, 

U.S. Department of Labor, 2002 Richard Jones Road, Suite B-201, 

Nashville, TN 37215-2862 (Certified Mail) 

Kr. William o. Oonan, Esq., Magic Coal company, P. O. Box 1352, 

Kadiaonville, KY 42431 (Certified Mail) 

William R. Thomas, Esq. , 33 East Broadway, Madisonville, 

KY 42431 (Certified Mail) 

/ml 

2021 
FEDERAL MINE SAFETY AND. HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON. 0 .C. 20006 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v . 

EASTSIDE ROCK PRODUCTS , 

Respondent 

September 30, 1994 

CIVIL PENALTY PROCEEDING 

Docket No . WEST 92 - 318-M 

A. C. No . 45- 00087-05531 

Sunset Quarry 

ORDER OF DEFAULT 

Befor e : J u dge Merl i n 

This case is before me pursuant to Order of the Commission 

dated February 23, 1994 . 

On March 8 , 1994, I issued an order vacating the order of 

dismissal previously e ntered and reinstating this case . Upon a 

motion from the Secretary I determined that this matter h ad been 

dismissed in error because the penalty assessment did not involve 

excessive history. 

The March 8 order also directed the operator to file an 

a nswer to the penalty petition a copy of which was enclosed with 

the order. The operator had not submitted an answer at the time 

of the erroneous dismissal . The file contains the return receipt 

showing that the operator received the March 8 order on March 11, 

1994 . On J u ne 3, 1994, a show cause order was issued directing 

the operator to file an answer. The operator was advised that 

failure to file an answer will result in the operator being 

placed i n default. To date no answer has been received. 

In light of the foregoing , it is ORDERED t h at the oper ator 

be h eld i n DEFAULT and the operator is ORDERED TO PAY $ 406 

immediatel y . 

\ 

Paul Me rlin 

Chief Administra tive Law J udge 

2022 
Distribution: (Certified Mail) 

Robert A. Friel, Associate Regional Solicitor, Rochelle 

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

Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101 

Mr. Richard Schroeder, owner, Eastside Rock Products, P. o. Box 

1324, Issaquah, WA 98027 

/gl 

2023 
2024 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL .MINE SAFETY AND HEALTH REVIEW COMMISSION ·. 

1730 K STREET NW. 6TH FLOOR 

WASHINGTON, 0 .C. 20006 

August 31, 1994 

. IN RE: CONTEST OF RESPIRABLE . DUST SAMPLE ALTERATION : 

Master Docket No. 91-1 

CITATIONS 

KEYSTONE COAL MINING 

CORPORATION, 

contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KEYSTONE COAL MINING 

CORPORATION, 

and 

UNITED MINE WORKERS OF 

AMERICA, 

Respondents 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

: 

. . 

. . 

. . 

. . 

. . 

CONTEST PROCEEDINGS 

Docket Nos. PENN 91-451-R 

through PENN 91-503-R 

Docket Nos. PENN 91-1176-R 

through PENN 91-1197-R 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 91-1264 

: Docket No. PENN 91-1265 . . 

. . Docket No. PENN 91-1266 

: Docket No. PENN 92-182 

. . 

. . 

. . 

Docket No. PENN 92-183 

ORDER OF STAY 

There is now before me the Secretary's motion to stay those 

cases in Master Docket No. 91-1 which are not presently on appeal 

to the Commission. The stay is requested until the Commission 

renders a decision in the specific dockets captioned above which 

are pending before it. The cases before the Commission ·and those 

in the master docket involve allegations by the Secretary that 

the operators intentionally tampered with respirable dust cassettes. The operators have filed briefs, some of which oppose a 

stay and some of which do not. 

Upon consideration of the motions and briefs filed by the 

parties, I determine that in the interests of judicial economy 

the cases in the master docket not on appeal should be stayed. I 

am of the view that a decision by the Commission in the cases on 

appeal, particularly on the common issues, may well affect how 

the remaining cases are perceived and the manner in which they proceed. 

2025 
Accordingly, it is ORDERED that the cases in Master Docket 

No. 91-1 be STAYED pending decision by the Commission in In Re: 

contest of Respirable Dust Sample Alteration Citations, Master 

Docket No. 91-1 and Keystone Coal Mining Corp., Docket Nos. PENN 

91-451-R, et al. 

--

Paul Merlin 

Chief Administrative Law Judge 

Distribution: {Certified Mail) 

Jerold S . Feingold, Esq., Stephen D. Turow, Esq., Offic e of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., 4th 

Floor, Arlington, VA 22203 

R. Henry Moore, Esq., Buchanan Ingersoll, USX Tower, 57th Floor, 

600 Grant Tower, Pittsburgh, PA 15219 

Barry A. Woodbrey, Jr., Esq., United Mine Workers of America, 

900 15th St., N.W., Washington, D.C . 20005 

Laura E. Beverage, Esq., Jackson & Kelly , 1660 Lincoln Street, 

Denver, Colorado 80264 

Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania 

Ave., N.W., Washington, D.C. 20004 

Michael T. Heenan, Esq., Smith, Heenan & Alth~n, 1110 Vermont 

Avenue, N.W., Washington, D.C. 20005 

John Palmer, Esq., Robinson & McElwee, P .O. Box 1791, Charleston, 

WV 25326 

H. Thomas Wells, Esq., Maynard, Cooper & Gale, 1901 6th Avenue, 

N.W., Suite 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203 

Robert B. Allen, Esq., John J. Polak, Esq., King, Betts and 

Allen, P.O. Box 3394, Charleston, WV 25333 

Jack Alsop, Esq., 109 South Main Street, Webster Springs, WV 

26288 

Karl F. Anuta, Esq., Western Fuels-Utah, Inc., P.O. Box 1001, 

1720 14th Street, Boulder, co 80306 

See Attached List 

2026