OCTOBER 1998 

COMMISSION DECISIONS 

10-16-98 Unique Electric 

10-30-98 White Oak Mining & Construction Co. 

10-30-98 LaFarge Construction Materials, et al. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-08-98 Western Construction, Inc. 

10-09-98 Black Diamond Construction, Inc. 

10-09-98 Cannelton Industries, Inc. 

10-14-98 Gilbert V. Ankrom v. Wolcottville Sand & Gravel 

10-21-98 Lime Mountain Company 

10-23-98 Price Construction, Inc. 

10-23-98 Gunther-Nash Mining Construction Co. 

10-23-98 Consolidation Coal Company 

10-26-98 Walker Stone Company 

10-26-98 Walker Stone Company 

10-26-98 Walker Stone Company 

10-27-98 Sec. Labor on behalf of Roscoe Ray Young v. 

Lone Mountain Processing, Inc. 

ADMINISTRATIVE LAW nJDGE ORDERS 

10-23-98 Martin Marietta Aggregates 

10-26-98 Unique Electric 

i 

WEST 95-333-M 

WEST96-235 

LAKE 95-114-RM 

WEST 98-11-M 

EAJ 98-1 

WEVA 94-381 

LAKE 98-126-DM 

WEST 98-55-M 

CENT 98-86-M 

LAK.E98-28 

WEVA94-57 

CENT 98-88-M 

CENT 98-99-M 

CENT 98-115-M 

KENT 98-255-D 

SE 98-156-M 

WEST 95-333-M 

Pg. 1119 

Pg. 1130 

Pg. 1140 

Pg. 1161 

Pg. 1169 

Pg. 1181 

Pg. 1185 

Pg. 1192 

Pg. 1199 

Pg. 1205 

Pg. 1213 

Pg. 1218 

Pg. 1225 

Pg. 1229 

Pg. 1233 

Pg. 1239 

Pg. 1241 

OCTOBER 1998 

There were no cases in which review was granted durin~ the month of October: 

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

Secretary of Labor, MSHA v. Hobet Mining, Inc., Docket No. WEVA 96-170, etc. 

-(Judge Melick, August 31, 1998) 

Secretary of Labor, MSHA v. Cyprus Emerald Resources Corporation, Docket No. 

PENN 94-23, etc. (Judge Hodgdon, September 30, 1998) 

ii 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA} 

V. 

UNIQUE ELECTRIC 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 16, 1998 

Docket No. WEST 95-333-M 

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

DECISION 

BY: Jordan, Chairman~ Marks, Riley, and Beatty, Commissioners 

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

1977,30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is whether Administrative 

Law Judge Richard W. Manning abused his discretion by considering an operator's cessation of 

business as a factor warranting a reduction in the penalty, in light of section 11 O(i} of the Mine 

Act, 30 U.S.C. § 820(i), which requires that penalties should take.into account "the effect on the 

operator's ability to continue in business." 19 FMSHRC 783, 792 (Apr. 1997) (AU). The 

Commission grant~d the Secretary's petition for discretionary review challenging the judge's 

penalty assessment. For the reasons that follow, we vacate the judge's penalty assessment and 

remand for reassessment. 

I. 

Factual and Procedural Background 

At the time of the fatal accident that was the subject ofthis proceeding, the 

Washington/Niagara Limited Partnership operated the Washington Mine, an underground gold 

mine in Shasta County, California. 19 FMSHRC at 784. Sub-level2 of the mine contained 

1119 
water in the drift1 requiring continuous pumping. 19 FMSHRC at 785. On September 5, 1994, 

Henry E. Feutrier, the Washington Mine's general manager, entered the mine alone to check a 

submersible pump on sub-level2. /d. at 783, 785. The next day, two miners discovered 

Feutrier's body under the water. /d. at 783. 

Representatives ofthe Department of Labor's Mine Safety and Health Administration 

("MSHA") and the California Division of Occupational Safety and Health investigated the 

fatality and determined that Feutrier had received an electrical shock and later drowned. /d. at 

784. MSHA attributed Feutrier's death to the failure of a circuit breaker to trip, resulting in the 

pump on which Feutrier was working being energized. lc/. The circuit breaker failed to trip 

because a "neutral bar inside [a] breaker panel enclosure was not bonded to the grounded 

enclosure .... " !d. (quoting MSHA's accident investigation report, Ex. S-1, at 77). 

Kim Warnock, an electrician licensed by the State of California, provided electrical 

services to the Washington Mine through his sole proprietorship. Unique Electric. /d. at 785. 

Unique Electric "was simply the name that Mr. Warnock used when he provided services to his 

customers [and] was not a separate legal entity." /d. Warnock's sole proprietorship had no 

employees or assets, and was not incorporated. /d.; Tr. 360. Warnock, doing business under the 

name Unique Electric, performed electrical work for the mine between 1992 and 1994. 

19 FMSHRC at 785-86. He performed all the electrical work required to open sub-level 2 in 

1994, including installing the transforn1er and the electrical panel board containing the circuit 

breaker. !d. He also rewired and installed the submersible pump 1 month before the accident. 

!d. 

On September 9, 1994, MSHA Inspector Arnold E. Pederson issued a citation under 

section 104(d)(l) ofthe Mine Act, 30 U.S.C. § 814(d)(l), to Unique Electric, alleging a 

significant and substantial ("S&S") and unwarrantable violation of 30 C.F.R. § 57.12025.2 19 

FMSHRC at 784. The Secretary proposed a civil penalty of$8,500. /d. Warnock contested the 

violation and special findings, appearing before Judge Manning prose. 

The judge found that "the pump circuit was not properly grounded at the time Warnock 

installed the pump ... about a month prior to the accident[,]" and that it was not properly 

grounded at the time of the accident as a result. /d. at 790-91. Based on these findings, the judge 

concluded that Unique Electric ~iolated section 57.12025. /d. at 791. The judge noted that 

"[s]tatements in MSHA's accident investigation report and the amount of the proposed penalty" 

1 "Drift" is defined as, inter alia, "[a] horizontal gallery ... driven from one underground 

working place to another and parallel to the strike of the ore." American Geological Institute, 

Dictionary of Mining, Mineral, and Related Terms 169 (2d ed.l997). 

2 Section 57.12025 states in pertinent part: "All metal enclosing or encasing electrical 

circuits shall be grounded or provided with equivalent protection." 

1120 
indicated MSHA's apparent belief that Warnock was solely responsible for Feutrier's death. !d. 

The j~dge disagreed, finding that many events, some attributable to Washington/Niagara, led to 

the fatality, including serious damage to the pump's cable resulting from its being pulled over 

rocks. !d. The judge CO!lcluded that the violation was S&S, 'but noting that the Secretary 

apparently abandoned her allegation of unwarrantable failure, vacated this allegation and 

modified the charging document to a citation under section 104{a) of the Mine Act, 30 U.S.C. 

§ 814(a). 19 FMSHRC at 791-92. 

The judge assessed a $400 civil penalty against Unique Electric based on his findings3 

that the violation was serious and abated in good faith, and that Unique Electric had no history of 

previous violations, was "very small," and was "negligent in failing to ground the pump circuit." 

!d. at 792. Noting that "Unique Electric no longer exists(, and that, thus] Mr. Warnock will have 

to pay any penalty assessed," the judge reasoned: 

In Basin Resources. Inc., 19 FMSHRC 211 (January 1997), 

I held that if a mine operator is no longer in business and does not 

intend to return to the mining business, this fact should be taken 

into consideration in considering the ability to continue in business 

criterion. I held that civil penalties are remedial, not punitive, and 

are designed to " induce those officials responsible for the operation 

of a mine to comply with the Act and its standards." !d. at 212 

(citation omitted). 

19 FMSHRC at 792. 

II. 

Disposition 

The Secretary first asserts that the judge reduced Unique Electric's penalty because 

Warnock was no longer a mine operator and had no intention of returning to the mining business. 

PDR at 5 (the Secretary designated her PDR as her brief). She argues that the judge erred in so 

doing under the "ability to continue in business" criterion of section 110(i) because, "[b]y 

definition, a penalty cannot have an effect on an operator's ability to continue in business if the 

operator is no longe1 in business." !d. at 7. Noting that the purpose of the criterion is "to 

3 Section 11 O(i) sets forth six criteria to be considered by Commission judges in the 

assessment of penalties under the Act: "[1] the operator's history of previous violations, [2] the 

appropriateness of such penalty to the size of the business of the operator charged, [3] whether 

the operator was negligent, [4] the effect on the operator's ability to continue in business, (5] the 

gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting 

to achieve rapid compliance after notification of the violation." 30 U.S.C. § 820(i). 

1121 
prevent, whery appropriate, a penalty from driving an operator out of business," the Secretary 

argues that "[t)he plain language and purpose of [the] 'ability to continue in business' criterion 

thus e~tablish that Congress intended that the ... criterion would have no effect on civil penalty 

assessments when an operator is not in business." !d. The Secretary further argues that, under 

the judge's rationale, a valuable deterrent to comply with the Mine Act would be lost where an 

operator who expects to be going out of business knows that it will receive a reduction in penalty 

when it eventually goes out of business. /d. at 8-9. Finally, the Secretary argues that the judge 

himself implicitly acknowledged the deterrence provided by a penalty to an out-of-business 

operation by refusing to reduce Unique Electric's penalty to a nominal amount. /d. at 9. Unique 

Electric did not file a brief. 

Determination ofthe amount of the penalty that should be assessed for a particular 

violation is an exercise of discretion by the trier of fact, bounded by proper consideration of the 

statutory criteria and the deterrent purposes underlying the Act's penalty assessment scheme. 

Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). 

While "a judge's assessment of a penalty is an exercise of discretion, assessments lacking record 

support, infected by plain error, or otherwise constituting an abuse of discretion are not immune 

from reversal .... " U.S. Steel C01p., 6 FMSHRC 1423, 1432 (June 1984). 

The operator cited in this case, Unique Electric, presents us with an unusual set of 

circumstances. The judge found that Unique Electric was nothing more than a trade name 

Warnock used when he provided services at Washington/Niagara's Washington Mine. 19 

FMSHRC at 785. Unique Electric had no employees or assets, nor even any separate legal 

identity apart from Warnock himself. /d.; Tr. 360. In fact, Unique Electric no longer exists 

because "Warnock is now employed by an electrical contractor that works exclusively at state 

and federal installations." 19 FMSHRC at 792. The judge's observation, therefore, that 

"Warnock will have to pay any penalty assessed," id., was equally true when Unique Electric 

was still an ongoing business concern because in this case the line between "operator" and 

"individual" is virtually indistinguishable. 

This case,. therefore, is akin to one brought against an individual under section 11 0( c) of 

the Mine Act, 30 U.S.C. § 820(c), and, for that reason, the judge did not err when he concluded 

that he needed to consider the effect of the penalty on Warnock as an individual. In the context 

of an individual found liable under section 11 O(c), the Commission has construed "the ability to 

continue in business" criterion. as requiring a judge to make findings regarding the effect of a 

penalty on the individual's ability to meet his financial obligations. Sunny Ridge Mining Co., 19 

FMSHRC 254,271:-72 (Feb. 1997); Ambrosia Coal & Constr. Co., 19 FMSHRC 819; 824 (May 

1997). Just as Congress determined that a penalty should not drive an operator out of business, 

we believe Congress likewise did not intend for a penalty to prevent an individual from meeting 

his or her financial obligations. Although Warnock was cited as an operator under section 104, 

and not as an individual agent under section 11 0( c), it was appropriate, nevertheless, for the 

judge to consider whether the proposed penalty would affect Warnock's ability to meet his 

financial obligations. Because the judge made no finding in this regard, however, we find it 

1122 
necessary to vacate the judge's penalty assessment and remand the case to him so he can make 

appropriate findings consistent with this decision, and consider such findings in assessing a new 

penalty.4 · 

Our decision should not be interpreted to suggest that any mine operator can obtain a 

reduction in the penalty assessed against it for a Mine Act violation pursuant to the "effect on the 

operator's ability to continue in business" criterion by going out ofbusiness. On the contrary, 

we emphasize that our holding in this case is confined to the extraordinary circumstances 

presented herein, in which Unique Electric, the named operator, was nothing more than the trade 

name used by Warnock to provide his own services (electrical) to the Washington Mine, and had 

no separate legal identity or personnel apart from Warnock himself. Under these unusual 

circumstances, we find it appropriate to remand this case to the judge to determine whether the 

penalty would affect Warnock's ability to meet his financial obligations irrespective of whether 

Uniqu~ Electric was still in business. 

We also note that although the Secretary preposcd a penalty of $8.500, the judge assessed 

a significantly lower penalty of$400. The judge concluded that a reduction in penalty was 

appropriate because, as he had noted in his Basin opinion: "[i]f an operator is no longer in the 

mining business, penalties do not have a deterrent effect on future compliance with the Mine Act 

and the Secretary's safety and health standards." 19 FMSHRC at 213. We agree with the 

Secretary that a penalty assessed against an operator who is no longer in business nevertheless 

provides a deterrent against future violations of health and safety standards. Admittedly, there 

may be no need to deter this particular operator. However, as one Court of Appeals has noted in 

an analogous case under the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., the 

failure to assess a penalty could cause other employers to "become complacent in the knowledge 

that future civil penalties could be avoided by ceasing operations on the eve of the Commission 

hearing." Reich v. Occupational Safety and Health Review Comm 'n, 102 F.3d 1200, 1203 (11th 

Cir. 1997). Indeed, as that court noted, we need to "worry about creating an economic incentive 

to avoid a penalty by going out of business· and, perhaps, then reincorporating under a different 

name." !d. Moreover, even "employers who were going out of business for ordinary 

commercial reasons would have little incentive to comply with safety regulations to the end if 

monetary penalties could be evaded once the business quit altogether." !d. 

The judge's erroneous determination that no deterrent purpose would be served by the 

penalty in this case provides another reason why we must vacate and remand for reassessment. 

4 Our dissenting colleague complains we are imposing an unreasonable "degree of 

exactitude" on the assessment process. Slip op. at 8. On the contrary, the Commission has long 

held that, while the Secretary's penalty proposals are not binding on the Commission or its 

judges, when penalties "substantially diverge from those originally proposed, it behooves [our] 

judges to provide a sufficient explanation of the bases underlying the penalties" to avoid "an 

appearance of arbitrariness." Sellersburg, 5 FMSHRC at 293; cf. Dolese Bros. Co., 16 

FMSHRC 689, 695 (Apr. 1994) (adequate findings are "critical" when a judge assesses a penalty 

that significantly departs from that proposed by the Secretary). 

1123 
III. 

Conclusion 

For the foregoing reasons, we vacate the judge's penalty assessment against Unique 

Electric and remand for further proceedings consistent with this decision. 

Marc Lincoln Marks, Commissioner 

James C. Riley, Commissioner: 

1;.;;>? d "' > i 

Robert H. Beatty, Jr., Commissioner 

1124 
Commissioner V erheggen, dissenting: 

I disagree with the majority's remand order. I would affirm the judge because I find no 

abuse of discretion in his penalty determination. I therefore dissent. 

This appeal is focused solely on the judge's exercise of the Commission's de novo 

"authority to assess all civil penalties" for violations of the Mine Act pursuant to section llO(i), 

30 U.S.C. § 820(i). Specifically, the Secretary has raised the issue of whether the judge abused 

his discretion when, in assessing the $400 penalty against Unique Electric, he considered the fact 

that the company was no longer in business and had no intention of returning to the mining 

business under the ·'ability to continue in business" criterion of section II O(i). PDR at 7. 

Relying on the purported "plain language and purpose" of the criterion, the Secretary argues that 

it should '·have no effect on civil penalty assessments when an operator is not in business." !d. 

I do not accept the Secretary's interpretation of the "ability to continue in business" 

criterion of section 11 O(i). The first inquiry in statutory construction is "whether Congress has 

directly spoken to the precise question in issue." Chevron US.A. Inc. v. Natural Resources 

Defense Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 

584 (Apr. I 996). The Commission has held that under various circumstances, the penalty criteria 

of section 11 O(i) are anything but clear in operation. See, e.g .. Sunn.v Ridge Mining Co., 

19 FMSHRC 254, 271-72 (Feb. 1997) (although some criteria do not apply to individuals on 

their face, judges must consider them in such contexts by analogy). Here, Congress clearly did 

not address assessment of penalties against operators who are no longer in business in section 

11 O(i). The first sentence of section 11 O(i) grants the Commission exclusive authority to assess 

civil penalties under the Mine Act. 30 U.S.C. § 820(i). As the agency thus charged with 

administering section 110(i), the Commission must interpret the provision to give it "the most 

harmonious, comprehensive meaning possible." Weinberger v. Hynson, Westcott and Dunning, 

Inc., 412 U.S. 609, 631-32 (1973). 

Keeping in mind that it is the Commission's function to authoritatively interpret section 

11 O(i), I view the "ability to continue in business" criterion as setting forth a broad mandate to 

consider the effect of penalties on the economic well-being of those held liable under the Act, 

however situated. No other criterion serves this important purpose. Were l to follow the 

Secretary's suggestion here, the Commission's penalty assessment would be made in the absence 

of any consideration of the effect of.the penalty on Warnock, a result l find inconsistent with the 

criterion's broad mandate. I am not prepared to render the criterion a nullity by interpreting it in 

such a way as to render it moot. See 2A Norman J. Singer, Sutherland Stat. Constr. § 46.06 (5th 

ed. 1992) ("It is an elementary rule of construction that effect must be given, if possible, to every 

word, clause and sentence of a statute."). Indeed, if the Commission were to remand this case to 

the judge and instruct him to ignore the facts surrounding the dissolution of Unique Electric and 

Warnock's assumption of its liabilities, which the Secretary essentially urges and which the 

majority declines to do, this could result in an artificially high penalty being assessed that would 

be more punitive than remedial in nature. I would thus hold that when assessing a penalty under 

1125 
section 11 O(i), Commission judges must examine the economic effect of the penalty, be it against 

a large corporate operator, a corporate operator in bankruptcy, or, as in this case, a sole 

proprietorship that has dissolved. 

The question remains as to whether the judge properly considered the effect of the 

penalty he assessed against Unique Electric. 1 I agree with the majority that, because "Unique 

Electric was nothing more than a trade name Warnock used when he provided services, ... (t]his 

case ... is akin to one brought against an individual under section 110(c)." Slip op. at 4. But 

this is precisely the vie~ taken by the judge when he found that "Warnock will have to pay any 

penalty assessed." 19 FMSHRC 783, 792 (Apr. 1997) (ALJ). Nevertheless, the majority insists 

on remanding this case to the judge with the direction that he "consider whether the proposed 

penalty would affect Warnock's ability to meet his financial obligations." Slip op. at 4. 

I find a remand here unnecessary for several reasons. First, in the case on which the 

majority relies, Sunny Ridge, the judge had failed to make any findings on several of the section 

II O(i) criteria when he assessed penalties against two individuals. 19 FMSHRC at 272, 274. In 

contrast, the judge here made findings on all six criteria. 19 FMSHRC at 792. The majority's 

remand order essentially requires the judge to supplement the record with evidence of Warnock's 

financial situation. Slip op. at 4-5. Such supplementation of the record assumes that penalty . 

assessments require a degree of exactitude I find simply unsupported by the language of section 

11 O(i). In assessing penalties, the Commission need only "consider" the penalty criteria, and the 

Act specifically provides that the Secretary, in providing information on the criteria, "shall not be 

required to make findings of fact concerning" the criteria. 30 U.S.C. § 820(i). Instead, she "may 

rely upon a summary review of the information available to [her]." /d. The majority's remand 

order strays far beyond this mandate of simplicity. More to the point, I believe that the judge's 

finding that "Warnock will have to pay any penalty assessed" (19 FMSHRC at 792), in the 

absence of any evidence adduced by either party on the question of his finances, satisfies the 

Act's requirement to "consider" the effect of the penalty on Warnock. 

I also believe that the majority's remand is based on a misunderstanding of the judge's 

opmton. The majority states: 

The judge concluded that a reduction in penalty was appropriate 

because, as he had noted in his Basin opinion: "[i]f an operator is 

no longer in the mining business, penalties do not have a deterrent 

effect on future compliance with the Mine Act and the Secretary's 

safety and health standards." 

Slip op. at 5 (citing Basin Resources, Inc., 19 FMSHRC 211, 213 (Jan. 1997)). This is not, 

1 The Commission reviews a judge's penalty assessment under an abuse of discretion 

standard. Westmoreland Coal Co., 8 FMSHRC 491,492 (Apr. 1986). 

1126 
however, what the judge did here. Instead, he stated: 

[I]f a mine operator is no longer in business and does not intend to 

return to the mining business, this fact should be taken into 

consideration in considering the ability to continue in business 

criterion .. . . (C]ivil penalties are remedial, not punitive, and are 

designed to "induce those officials responsible for the operation of 

a mine to comply with the Act and its standards." 

19 FMSHRC at 792 (citing Basin Resources, 19 FMSHRC at 211-12). In fact, there is no 

mention in the judge's opinion that any single factor alone led him to reduce the penalty. 

I recognize that the penalty the judge assessed was significantly lower than that proposed 

by the Secretary. But, in view of the particular facts and circumstances of this case, I am not 

prepared to say that the judge abused his discretion or that the penalty is inconsistent with the 

statutory criteria or the Act's deterrent purposes. The demise of Unique Electric and Warnock's 

peculiar situation are factors that could have warranted a significant reduction ,in the penalty. I 

also note that a lower penalty could reflect the judge not finding the violation unwarrantable as 

the Secretary had alleged in the citation. See 19 FMSHRC at 792. The judge was under no 

obligation to adopt the penalty proposed by the Secretary - his penalty assessment was de novo. 

Wallace Bros .. Inc., 18 FMSHRC 481,483-84 (Apr. 1996). Nor was he required to follow apy 

sort of formula in assessing a penalty. As the Commission has recognized, "there is no 

requirement that equal weight must be assigned to each of the penalty assessment criteria." 

Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). 

I agree with the majority that penalties under the Mine Act are intended to hav~ both a 

specific and a general deterrent effect, and that even when "there may be no need to deter [a] 

particular operator," a general deterrent still must be considered. Slip op. at 5. But I find nothing 

in the judge's decision indicating that he failed to consider the general deterrent effect of the 

penalty he assessed. I find his decision consistent with Commission precedent, which states that 

"deterrence is achieved through the assessment of a penalty based on the six statutory penalty 

criteria," and that"[ d]eterence is not a separate component used to adjust a penalty amount after 

the statutory criteria have been considered." Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 

1565 (Sept. 1996). · 

I do not find the majority's reliance on the Eleventh Circuit's decision in Reich v. 

Occupational Safety and Health Review Comm 'n convincing. Slip op. at 5 (citing 102 F.3d 

1200, 1203 (11th Cir. 1997) ). In that case, the court vacated the decision of an administrative 

law judge dismissing as moot a case against a corporate shipyard operator because the operator 

was in the final stages of going out of business. 102 F .3d at 1201. The effect of the judge's 

opinion was to absolve the operator of any and all liability under the Occupational Safety and 

Health Act, 29 U.S.C. § 651 et seq., for an incident that had led the Secretary to fine the 

company $692,000. 102 F.3d at 1201. In contrast, Unique Electric (in the guise of Warnock) 

1127 
still faces liability for its negligence. Moreover, I certainly do not believe that this is the sort of 

case where affirming the judge would create an "'incentive to avoid a penalty by going out of 

business and, perhaps, then reincorporating under a different name."' Slip op. at 5 (quoting 102 

F.3d at 1203). 

As stated above, I recognize that the degree of Warnock's liability is significantly less 

than that originally proposed by the Secretary. But even ifl disagreed with the amount of the 

penalty assessed against Warnock, even ifl believed that under the fads of this case, a far higher 

penalty should have been imposed, any such opinion is irrelevant. This penalty detem1ination 

was committed to Judge Manning's discretion, and I find no indication that he abused that 

discretion. Accordingly, I would affirm the judge's assessment of a $400 penally against Unique 

Electric. 

1128 
Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Kim Warnock, O"":'Jler 

Unique Electric 

1136 Cedar Street 

Shasta Lake City, CA 96019 

Administrative Law Judge Richard Manning 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

1244 Speer Blvd., Suite 280 

Denver, CO 80204 

1129 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 30, 1998 · 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

WHITE OAK MINING & 

CONSTRUCTION COMPANY, INC. 

Docket Nos. WEST 96-235 

WEST96-338 

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

DECISION 

BY: Marks, Riley, and Beatty, Commissioners 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is the decision by 

Administrative Law Judge T. Todd Hodgdon that White Oak Mining & Construction Company, 

Inc. ("White Oak"), did not violate 30 C.F.R. § 48.7(a) when it gave employee Keith Smith task 

training as a miner operator of a continuous mining machine.• 19 FMSHRC 1414, 1433-34 

1 Section-48. 7 states, in pertinent part: 

(a) Miners assigned to new work tasks as mobile equipment 

operators ... shall not perform new work tasks in [this] categor[y] 

until training prescribed in this paragraph and paragraph (b) of this 

section has been completed. This training shall not be required for 

miners who have been trained and who have demonstrated safe 

operating procedures for such new work tasks within 12 months 

preceding assignment. This training shall also not be required for 

miners who have performed the new work tasks and who have 

demonstrated safe operating procedures for such new work tasks 

within 12 months preceding assignment. The training program shall 

include the following: 

1130 
(Aug. 1997) (J\LJ). The Commission granted the Secretary of Labor's petition for discretionary 

review challenging the judge's determination. 

I. 

Factual and Procedural Background 

White Oak owns and operates the White Oak No. 2 Mine, an underground coal mine in 

Carbon County, Utah. Jd. at 1414; Tr. 140-41. The mine employs the "room and pillar" method 

of mining using remote-control continuous mining machines to perform 40-foot, extended-cut 

mining. 19 FMSHRC at 1415; Tr. 524, 558. From 1972 to 1992, the mine was operated by 

Valley Camp using similar mining methods. 19 FMSHRC at 1414-15. 

In 1975, Smith started working at the mine, which was then operated by Valley Camp. 

Tr. 46. In approximately 1976 and 1977, Smith received task training on continuous miners, fust 

as a miner helper and then as a miner operator. Tr. 69, 72-73. From 1976 to 1983, he worked 

underground as a miner helper or miner operator. Tr. 72. From 1983 to 1987, Smith worked 

mainly on the surface in non-continuous miner duties, although he sometimes worked 

underground with continuous mining machines. Tr. 73-7 4. From 1987, he worked "off and on" 

(1) Health and safety aspects and safe operating procedures 

for work tasks, equipment, and machinery. The training shall include 

instruction in the health and safety aspects and the safe operating 

procedures related to the assigned tasks, and shall be given in an onthe-job environment; and 

(2)(i) Supervised practice during non-production. The training 

shall include supervised practice in the assigned tasks, and the 

performance of work duties at times or places where production is not 

the primary objective; on [sic] 

. (ii) Supervised operation during production. The training shall 

include, while under direct and immediate supervision and production 

is in progress, operation of the machine or equipment and the 

performance of work duties. 

(b) Miners under paragraph (a) of this section shall not operate 

the equipment or machine or engage in blasting operations without 

direction and immediate supervision until such miners have 

demonstrated safe operating procedures for the equipment or machine 

or blasting operation to the operator or the operator's agent. 

30 C.F.R. § 48.7(a) and (b) (emphases in original). 

1131 
as a miner operator but starting in 1990, he worked steadily as a miner helper and miner operator. 

Tr. 76. During Smith's time with Valley Camp, he task trained over ten miner operators and 

about the same number of miner helpers. Tr. 76-77. 

On November 2, 1992, Valley Camp closed the mine. Tr. 78. White Oak purchased and 

reopened it in October 1993. Tr. 46, 78. Smith was recalled to the mine as a miner helper 

because ofhis experience with the mine equipment. Tr. 78-79, 532. In October 1993, he 

attended an eight-hour refresher course at a college before being allowed to work underground 

for White Oak. Tr. 79. Upon arriving at the mine, he was given mine-specific training involving 

a tour of the mine, the section, and the face, and task training as a miner helper. Tr. 79-80. From 

October 1993 until January 1994, he worked as a miner helper, assisting Shane Hansen, a miner 

operator and the mine's safety director. Tr. 78, 81-82,209,496-97. 

On January 18, 1994, Smith was task trained as a miner operator by Hansen. Tr. 61,508-

10. During Smith's task training, Hansen covered four of the six required subjects in the 

company's training plan. Tr. 89-93, 512. The two subjects he did not cover were changing 

miner bits and servicing continuous miners. Tr. 91-93. Smith's task training also did not cover 

all of the course materials required by the training plan, such as applicable MSHA standards. 

Gov't Ex. P-8 at 2; Tr. 95, 97, 509. During non-production, Smith was allowed "a few minutes 

to play with the controls and get used to everything and then [Hansen and he] trammed" to the 

face and began production. Tr. 510-11. After Smith began cutting coal, Hansen stayed with him 

for most of the remaining shift and helped him on the miner. Tr. 503, 511. 

On March 7, 1995, Blue Samples, a 20-year old inexperienced miner, started work at the 

mine. 19 FMSHRC at 1420; Tr. 227. One week after his arrival, Smith task trained Samples as 

a miner helper. Tr. 49-55. On March 24, while Samples was working as a mine helper with a 

continuous miner operated by Smith, Samples was hit and killed by the tail boom of the machine. · 

19 FMSHRC at 1420; Tr. 47. 

As a result of the fatal accident investigation by inspectors with the Department of 

Labor's Mine Safecy and Health Administration ("MSHA"), White Oak was issued an order 

alleging that the task training of Smith as a miner operator amounted to a significant and 

substantial ("S&S") violation of section 48.7(a)2 that resulted from White Oak's unwarrantable 

failure to comply with the standard. 19 FMSHRC at 1421-22. The company was also issued an 

order alleging that Samples wa~ not properly task trained as a miner helper under section 48.7(c). 

!d. at 1420-21. White Oak challenged the orders, and the matter proceeded to hearing before 

Judge Hodgdon. 

2 The order originally charged a violation of section 48. 7( c) but it was amended to an 

alleged section 48.7(a) violation. 19 FMSHRC at 1421 n.3. 

1132 
The judge held that the task training of Smith as a miner operator did not amount to a 

violation of section 48.7(a).l Reasoning that section 48.7 does not provide sufficient notice of 

the required conduct, the judge applied the "reasonably prudent person" test to determine 

whether Smith's task training was adequate under the standard. !d. at 1423-24, 1433-34. The 

judge noted that, although Smith's training "lasted only between 15 and 30 minutes, and ... did 

not cover everything contained in the company's training plan," Smith had extensive experience 

with continuous miners. Id. at 1433. Accordingly, he determined that a reasonably prudent 

person would conclude that Smith had been adequately trained as a continuous miner operator, 

and he vacated the order. /d. at 1434. 

The Secretary subsequently filed a petition for discretionary review, challenging the 

judge's finding that White Oak did not violate section 48.7(a) when it task trained Smith as a 

miner operator. 

II. 

Disposition 

The Secretary asserts that the judge erred in vacating the citation. She argues that the · 

language of section 48. 7(a) is unambiguous and that the judge erred in using the reasonably 

prudent person test to determine whether Smith was properly task trained as a miner operator. S. 

Br. at 7, 8-9 n.5. She contends that Smith's task training did not satisfy the requirements of the 

standard because it did not contain information on the health and safety aspects of operating a 

continuous miner, and did not include supervised practice under production or non-production 

conditions. !d. at 3, 10. White Oak responds that the judge was correct in his determination that 

the language of section 48.7(a) is not clear, that it was appropriate to apply the reasonably 

prudent person test, and that Smith's task training complied with section 48.7(a). WO Br. at 3, 

19-22. 

Section 48.7(a) sets forth requirements that task training must include "instruction in the 

health and safety l!Spects and the safe operating procedures related to the assigned tasks," and 

must include either "supervised practice . .. where production is not the primary objective" or 

"direct and immediate supervision (when] production is in progress." 30 C.F.R. § 48.7(a). 

While we agree with the Secretary that section 48.7(a) sets forth requirements to be included in 

task training, those requiremen_ts are broadly worded. It is not clear from the regulation which 

"health and safety aspects" and "safe operating procedures" must be covered in training or the 

extent or duration required for "supervised practice" or "direct and immediate supervision." 

3 The judge held, however, that White Oak violated section 48.7(c) when it task trained 

Samples as a miner helper, that the violation was S&S, and that it resulted from the operator's 

unwarrantable failure. 19 FMSHRC at 1428, 1431-32. White Oak did not file a petition for 

discretionary review challenging those determinations. 

1133 
In construing broadly worded regulations, the Commission has recognized that it is 

appropriate to consider whether a reasonably prudent person, familiar with the mining industry 

and the protective purposes of the standard, would have recognized the specific prohibition or 

requirement ofthe standard. Ideal Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); 

Quinland Coals, Inc., 9 FMSHRC 1614, 1617-18 (Sept. 1987). Accordingly, the judge did not 

err in his determination to apply the reasonably prudent person test to the language of section 

48.7(a).4 

Nonetheless, we conclude that the judge erred in his application of the test. The judge 

determined that any inadequacies in Smith's task training were offset by his years of experience 

with continuous miners. 19 FMSHRC at 1433. The judge stated that "[i]fSmith were a new 

miner, had never been a miner helper or had never operated a continuous miner before, [his task 

training] would clearly be inadequate. But that is not the case." !d. Although task training 

should be adapted to reflect experience, the judge erred to the extent that he considered Smith's 

years of experience as a substitute for the standard's requirements that task training include 

health and safety information and supervision. 

The judge failed to provide sufficient factual fmdings on evidence relating to whether 

Smith's task training included the health and safety information and supervised practice or 

supervised operation during production required by section 48.7(a). Without adequate findings 

of fact and the basis for them, the Commission cannot effectively perform its review function. 

Anaconda Co., 3 FMSHRC 299, 299-300 (Feb. 1981). Accordingly, we vacate the judge's 

4 We do not place as much reliance on the operator's training plan as do our dissenting 

colleagues. See slip op. at 7 n.2. Unlike the regulations for roof control and ventilation plans, 

which have extensive and detailed content requirements, there are no such requirements for 

training plans covering section 48.7(a) task training. Compare 30 C.F.R. § 48.3 with 30 C.F.R. 

§§ 75.220, 75.i21,. 75.370, 75.371. Although White Oak's training plan was approved by 

MSHA, it is very brief and, as the judge noted, does not appear to cover the health and safety 

aspects and safe operating procedures required by section 48.7(a). 19 FMSHRC at 1432; Gov't 

Ex. P-8 at 2. Our colleagues claim that White Oak's training "plan was presumably tailored ... 

to the specific conditions at its mine." Slip op. at 7 n.2. However, it is noteworthy that White 

Oak did not tailor its training plai) to its mine but simply took Valley Camp's training plan, put 

White Oak's cover letter on it, and resubmitted it to MSHA. Tr. 524. To further support their 

claim that White Oak's training plan was entitled to considerable weight because it was minespecific, our colleagues also cite to Jim Walter Resources, Inc., 9 FMSHRC 903 (May 1987). 

Slip op. at 7 n.2. However, Jim Walter Resources does not involve training plans but instead 

deals with ventilation plans, which, as discussed above, are far more detailed and comprehensive. 

Unlike our colleagues, we believe it is appropriate to judge Smith's training against the training 

requirements of section 48.7(a) using the reasonably prudent person test rather than against an 

overly terse training plan developed by the operator that may not fully comply with the 

requirements of section 48. 7( a). 

1134 
determination and remand to the judge to determine whether the task training provided to Smith 

amounted to the type of training that a reasonably prudent person would have provided in order 

to meet the protection intended by the standard's requirements·. 

III. 

Conclusion 

For the foregoing reasons, we vacate the judge's determination that White Oak did not 

violate section 48.7(a) and remand for further analysis consistent with this decision. If the judge 

finds that White Oak violated section 48.7(a), he shall also consider whether the violation was 

S&S and resulted from the operator's unwarr ble failure, and assess an appropriate civil 

penalty. 

• 

Robert 

-/~H. Beatty, Jr., </ Commissioner/ ~ 

1135 
Chairman Jordan and Commissioner Verheggen, dissenting: 

The record in this case reflects that Smith's task training included the necessary health 

and safety information and supervised practice required by section 48.7(a). Because substantial 

evidence supports the judge's finding that White Oak Mining complied with the regulation, 1 we 

would affirm his decision and therefore dissent from our colleagues remand order. 

Our colleagues in the majority contend that the regulation does not "contain information 

on the health and safeo/ aspects of operating a continuous miner," and consequently, they 

approve the judge's use of the "reasonably prudent person test" to evaluate compliance with 

section 48.7(a). Slip op. at 4-5. However, they fail to adequately acknowledge the existence of 

the operator's training plan, approved by MSHA,2 which provides a blueprint for ascertaining 

whether appropriate health and safety training occurred. Reference to the training plan is 

consistent with this particular regulatory scheme, as section 48. 7(a) is written in deliberately 

broad terms, with the details to be provided by each individual operator's training plan. 

Therefore, we see no need to adopt the objective, but nonetheless still general standard of what 

training a "reasonably prudent person" would have provided, when we have as a reference the 

specific elements in White Oak's training plan. Rather, we believe the pertinent inquiry is 

whether the Secretary has proven that the operator failed to comply with the provisions of the 

training plan, and conclude that in this case she did not meet this burden. 3 

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

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

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

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

Coal Co., 11 FMSHRC 2159,2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

u.s. 197,229 (1938)). 

2 Under section 115 of the Mine Act, 30 U.S.C. § 825, every mine operator is required to 

have a health and safety training program approved by the Secretary. Our colleagues 

characterize White Oak's training plan as "overly terse," and, consequently, "do not place ... 

much reliance on" it. Slip op. at 5 n.4. We believe, however, that this plan provides the only 

mine-specific frame of reference to evaluate the training given Smith. The plan was presumably 

tailored, with MSHA's approval, to the specific conditions at its mine. As the Commission has 

noted in another context, "[t)he ultimate goal of the [mine plan] approval and adoption process is 

a mine-specific plan with provisions understood by both the Secretary and the operator and with 

which they are in full accord." Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987). 

Also, although our colleagues assert that the plan "may not fully comply with the requirements 

of section 48.7(a)" (slip op. at 5 n.4), the propriety of the plan is not before us in this appeal. 

3 Our reliance on the operator's own training plan is consistent with the importance we 

place on an operator's roof control and ventilation plan. See Jim Walter Resources, 9 FMSHRC 

1136 
White Oak's training plan contains six required elements that a miner operator must learn 

during the training program. Gov't Ex. P-8 at 2. The evidenc~ in the record reflects that Smith 

completed four of these six elements. Tr. 89-93, 512; WO Br. at 6-7. Thus the Secretary's only 

possible claim that White Oak failed to comply with the provisions of the training plan would 

rest on Smith's lack of training on two remaining elements of the plan: changing ofbits and the 

servicing of the continuous miner. On this particular record, this does not suffice to prove a 

violation. 4 

Section 48.7(a)-is not applicable when a miner has "demonstrated safe operating 

procedures for such new work tasks within 12 months preceding assignment." Although it is 

undisputed that Smith was required to undergo task training, since he had not performed the 

miner operator job within 12 months, he had performed some aspects of that job within that time 

period; in fact, he had changed bits and serviced the machine as a miner's helper. Tr. 92-93; 498; 

W.O. Br. at 16. In other words, there was an overlap in function between the helper and 

operator's jobs because Smith performed this work during the period immediately preceding his 

task training. His trainer, Hansen, would have been aware of this because Smith worked as 

Hansen's helper. Tr. 86, 496-97. Thus, under the language of the regulation, he was not required 

to be trained on these two elements of the plan. 

We find it troubling that MSHA issued this order having made little or no effort to 

discuss with either Smith or Hansen the substance of the training provided. Tr. 199, 202-03, 

260-61. Instead, the Secretary appears to treat White Oak's failure to utilize the manufacturer's 

service bulletin's guidelines on the safe operation of continuous miners as virtually a per se 

violation. S. Post-Hearing Br. at 14, 16. However, the training plan approved by MSHA does 

not require that this manual be used. Even the plan's reference to course materials does not 

identify the manufacturer's bulletin. 5 

We emphasize that we do not disagree with the application of the reasonably prudent 

person test to this regulation in the absence of more specific guidan?e. For instance, because this 

plan is silent about how long task training should be conducted, we agree with our colleagues in 

at 907 (once ventilation plan approved, its provisions are enforceable as mandatory safety 

standards); US. Steel Mining Co., 8 FMSHRC 314, 318-20 (Mar. 1986) (affirming judge's 

finding that operator violated its roof control plan). 

4 The Secretary's sweeping assertion that "there can be no doubt that the specific 

requirements of Section 48.7(a) were not satisfied" (S. Br. at 10)- offered without a shred of 

record support -hardly suffices to sustain her claim. 

5 We agree with the judge, however, that the manufacturer's bulletin would provide an 

excellent training reference and that MSHA might want to include it in the training plans it 

reviews and approves in the future. 19 FMSHRC at 1427. 

1137 
the majority that the reasonably prudent person test could be applied to this part of the regulation. 

We believe that under this test, the 15 minutes of oral instruction provided here constitutes 

compliance with section 48.7 (a) in light of Smith's extensive mining background.6 

In conclus~on, .substantial evidence in the record supports the judge's determination that 

no violation occurred, and accordingly, we would affirm. 

Theodore F. Verheggen, Commissi 

6 We agree with our colleagues in the majority that it would be inappropriate to substitute 

a miner's experience for training that fails to meet the requirements of the regulation." Slip op. at 

5. Because they are correct, however, that "task training should be adapted to reflect 

experience," we cannot say that 15 minutes of training was inadequate under this regulation. !d. 

1138 
Distribution 

Yoora Kim, Esq., 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

William K. Doran, Esq. 

Heenan, Althen & Roles 

1110 Vermont Avenue, N.W., Suite 400 

Washington, D.C. 20005-3593 

Administrative Law Judge T. Todd Hodgdon 

Federal Mine Safety and. Health Review Commission 

Office of the Administrative Law Judge 

5203 Leesburg Pike 

Falls Church, VA 22041 

1139 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

LAF ARGE CONSTRUCTION 

MATERIALS, and 

THEODORE DRESS 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 30, 1998 

Docket Nos. LAKE 95-114-RM 

LAKE 95-239-M 

LAKE 96-28-M 

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

DECISION 

BY: Jordan, Chairman; Marks, and Beatty, Commissioners 

These consolidated civil penalty proceedings, arising under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involve a citation 

issued to Lafarge Construction Materials ("Lafarge") alleging an unwarrantable and significant 

and substantial ("S&S") violation of30 C.P.R.§ 56.16002(a)(1)1 for failure to remove loose 

materials before allowing a miner to enter a surge bin, and a related allegation that Theodore 

Dress, a foreman for Lafarge, is personally liable under section 11 0( c) of the Mine Act, 30 

U.S.C. § 820(c), for knowingly authorizing the violation. Administrative Law Judge David F. 

Barbour concluded that Lafarge violated section 56.16002(a)(l) and that the violation was S&S 

and the result ofu·nwarrantable failure. 18 FMSHRC 2199, 2208-10 (Dec. 1996) (ALJ). He also 

1 Section 56.16002 proyides, in part: 

(a) Bins, hoppers, silos, tanks, and surge piles, where loose 

unconsolidated materials are stored, handled or transferred shall 

be-

(1) Equipped with mechanical devices or other effective 

means of handling materials so that during normal operations 

persons are not required to enter or work where they are exposed to 

entrapment by the caving or sliding of materials .... 

1140 
concluded that Dress knowingly authorized the violation by not taking additional steps to clear 

the surge bin. !d. at 2210-12. For the reasons that follow, we affirm the judge's findings of 

violation, unwarrantable failure, and section 11 0( c) liability. · 

I. 

Factual and Procedural Background 

On July 15, 1994, Theodore Dress, a foreman at Lafarge's Marblehead quarry in Ottawa 

County, Ohio, noticed sand leaking through a hole in the discharge chute at the bottom of the 

quarry surge bin. 18 FMSHRC at 2200-03. The surge bin is a metal structure measuring 

approximately 22 by 22 feet square and 13 feet high. ld. at 2201-02; Tr. 92. Crushed limestone, 

up to 1 0 inches in size, is deposited into the top of the surge bin. 18 FMSHRC at 2201. The 

surge bin has mechanical vibrators that shake the bin and cause the limestone to fall through 

openings in the bottom of the bin into a discharge chute and onto a conveyor belt below, where it 

is transported for further processing. ld. at 2201-02. In addition, a hand bar is available that can 

be used to manually seal~ the limestone inside the surge bin. !d. at 2203; Tr. 43, 105-06, 119-20. 

In order to repair the hole, Dress determined that a metal patch needed to be welded over 

the hole from the inside of the discharge chute. 18 FMSHRC at 2203. In preparation for the · 

repair, Dress ordered that the vibrators be kept running until electronic sensors indicated the 

surge biQ. was empty, and that the vibrators be run for an additional20 to 30 minutes to dislodge 

any remaining loose materials. !d.; Tr. 40, 97, 113. Following the vibrating procedure and after 

the surge bin was deenergized and locked out, Dress and Daniel Harder, the miner assigned to do 

the repair, visually inspected the inside of the surge bin from the discharge chute. 18 FMSHRC 

at 2203. Both men observed an inverted cone-shaped wall of hard-packed fines,2 known as the 

"dead bed," that had compacted around the openings in the bottom of the bin. ld. at 2202-03; Tr. 

96, 107-08. At the top ofthe dead bed, which was about 6 to 8 feet high, was a ridge that caused 

loose rock deposited inside it to slide down through the openings into the discharge chute and 

loose rock d'eposited outside it to accumulate along the sides of the surge bin. 18 FMSHRC at · 

2202; Tr. 96. Both men observed loose rocks at the top of the dead bed, which they believed lay 

outside the ridge and would not fall. 18 FMSHRC at 2203. They did not use the scaling bar to 

knock down this loose material, concluding that it would be safe to enter the surge bin to perform 

the repair. /d. 

Harder climbed inside the surge bin and welded the metal patch for approximately 45 

minutes when he heard rocks begin to fall around him. !d. at 2204. He crouched down and 

attempted to exit the surge bin, but succeeded in getting only his head out of the bottom opening 

2 ''Fines" is defined, in part, as "[f]inely crushed or powdered material, e.g., ... crushed 

rock, ... as contrasted with the coarser fragments . . . . " American Geological Institute, 

Dictionary of Mining, Mineral, and Related Terms 208 (2d ed. 1997). 

1141 
because rocks had fallen around his back and shoulders preventing him from getting all the way 

out. !d. Dress, who had remained outside the surge bin, helped Harder remove some of the 

rocks and, after about 5 minutes, Harder was freed. !d. Harder suffered minor cuts and bruises. 

!d.; Tr. 36-37. 

While conducting a regular inspection at the Marblehead quarry in October 1994, James 

Strickler, an inspector with the Department of Labor's Mine Safety and Health Administration 

("MSHA"), learned of~he accident and issued to Lafarge Citation No. 4413670, pursuant to 

section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging an S&S violation of section 

56.16002(a)(1) for failure to remove loose materials before entering the bin. 18 FMSHRC at 

2204-05; Gov't Ex. 3. Strickler later modified the citation to allege, pursuant to section 

104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(l), an unwarrantable failure to comply with the 

standard. 18 FMSHRC at 2205; Gov't Ex. 3. Subsequently, the Secretary proposed a civil 

penalty assessment of $3,800 against Lafarge. 18 FMSHRC at 2210. In addition, following a 

special investigation, the Secretary proposed a civil penalty assessment of $3,000 against Dress, 

pursuant to section 110(c) of the Mine Act, alleging that, by not taking additional steps to clear 

the surge bin of loose materials, he knowingly authorized the violation. !d. at 2210-12. Lafarge 

and Dress challenged the proposed assessments. 

Following an evidentiary hearing, the judge concluded that Lafarge violated section 

56.16002(a)(1 ), that the violation was S&S, and that it resulted from Lafarge's unwarrantable 

failure to comply with the standard. !d. at 2208-10. Finding the language of the standard clear, 

the judge determined that, although the surge bin was equipped with mechanical devices and 

other effective means to remove loose materials, Lafarge failed to "operate the vibrators to 

eliminate all of the loose rock, and ... to ensure that the remaining loose rock was barred down 

prior to Harder entering the bin .... " !d. at 2206-07. He further determined that the activity of 

patching the hole constituted "normal operations" within the meaning of the standard. !d. at 

2207-08. The judge determined that the violation was the result of unwarrantable failure because 

''no one at Lafarge knew enough about emptying the bin to be certain that the procedures were 

adequate" and "[t}he company should have required more," e.g., it should have visually inspected 

the surge bin from above and used the scaling bar to remove any loose material, regardless of 

how long the vibrators had run. !d. at 2209-10. In addition, the judge concluded that Dress 

knowingly authorized the violation because he observed the loose materials yet failed to take 

additional steps to clear the surge bin. !d. at 2210-12. Accordingly, the judge assessed civil 

penalties of$2,500 against Lafarge and $500 against Dress. !d. at 2210, 2212. The Commission 

granted the petition for discretionary review subsequently filed by Lafarge and Dress challenging 

the judge's conclusions. 

1142 
II. 

Disposition 

Lafarge and Dress (the "Contestants") argue that the judge erred in concluding that the 

standard was violated. L&D Br. at 5-13; L&D Reply Br. at 3-4. The Contestants assert that the 

surge bin was "equipped" with mechanical devices for handling materials, and that the plain 

language of the standar~ does not regulate how such devices are to be utilized nor specify that the 

vibrators be run longer than 25 to 30 minutes or that the bin be inspected from the top. L&D Br. 

at 5-7, 9-12; L&D Reply Br. at 3-4, 6. They also assert that patching the hole in the surge bin 

does not constitute "normal operations," and thus the standard is inapplicable. L&D Br. at 7, 12-

13. In addition, the Contestants argue that, by following the quarry's longstanding procedures of 

clearing and inspecting the surge bin, which were consistent with industry practice, Lafarge's 

actions did not amount to unwarrantable failure. !d. at 6-7, 14-19; L&D Reply Br. at 1-5. They 

further argue that Dress' actions did not reflect a disregard for safety or legal requirements, and 

so did not constitute a knowing violation under section 110(c). L&D Br. at 7, 20-24; L&D Reply 

Br. at 4-6. 

The Secretary responds that the judge properly concluded that Lafarge violated the 

standard. S. Br. at 1, 7-14. She asserts that her interpretation ofthe standard is entitled to 

deference because it is consistent with the language and purpose of the standard. !d. at 8-9. She 

also asserts that the standard provided notice that devices with which surge bins are "equipped" 

must be used in an effective manner to be considered an "effective means of handling materials," 

and that repairing the surge bin was part of"normal operations." !d. at 10-13. In addition, the 

Secretary argues that substantial evidence supports the judge's conclusions that the violation was 

the result of unwarrantable failure and that Dress knowingly authorized, ordered, or carried out 

the violation. !d. at 1-2, 14-19. 

A. ViGlation 

The parties disagree over the meaning of section 56.16002(a)(1). The "language of a 

regulation ... is the starting point for its interpretation." Dyer v. United States, 832 F.2d 1062, 

1066 (9th Cir. 1987) (citing Consumer Prod. Safety Comm 'n v. GTE Sylvania, Inc., 447 U.S. 

102, 108 (1980)). Where the language of a regulatory provision is clear, the terms of that 

provision must be enforced as they are written unless the regulator clearly intended the words to 

have a different meaning or unless such a meaning would lead to absurd results. See id.; Utah 

Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation Coal Co., 15 FMSHRC 

1555, 1557 (Aug. 1993). It is only when the meaning is ambiguous that deference to the 

Secretary's interpretation is accorded. See Udall v. Tallman, 380 U.S. 1, 16-17 (1965) 

(reviewing body must " look to the administrative construction of the regulation if the meaning of 

the words is in doubt") (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14 

(1945)); Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C. Cir. 1990) ("Deference ... is not 

in order if the rule's meaning is clear on its face.") (quoting Pfizer, Inc. v. Heckler, 735 F.2d 

1143 
1502, 1509 (D.q. Cir. 1984)). Here, we conclude that the language of section 56.16002(a)(l), 

which requires surge bins to have "mechanical devices or other effective means of handling 

materials," clearly requires that the devices be used effectively. As we explain below, we also 

conclude that the plain language of the regulation supports the Secretary's view that repairing the 

surge bin constitutes "normal operations." 

We find unpersuasive the Contestants' argument that the standard was not violated 

because the surge bin was "equipped" with mechanical devices for handling materials. Although 

the bin was furnished with vibrators and a scaling bar to remove loose rock, the record indicates 

that Lafarge failed to utilize these devices effectively. After Lafarge operated the vibrators for 25 

to 30 minutes, Dress and Harder looked inside the bin and, despite their observation ofloose 

materials, they did not continue to run the vibrators or use the scaling bar to clear the loose 

materials before Harder entered the bin.

3 18 FMSHRC at 2203; Tr. 16-18, 24, 27-28,41, 43, 

116-20. We agree with the judge that, "under the standard, both the means for achieving the end 

and effective use of the means were required." 18 FMSHRC at 2207. By employing the words 

"so that," the standard is clearly designed to achieve a result, and that result cannot be achieved 

unless the equipment is actually utilized properly. In this case, we conclude that the standard 

requires effective use of the vibrators and scaling bar, and that Lafarge failed to effectively use 

them to clear the loose materials before allowing Harder to enter the bin. 

In addition, we reject the Contestants' argument that the standard is inapplicable because 

the activity of patching the hole in the surge bin does not constitute "normal operations." The 

judge found that patching the hole constituted maintenance of the surge bin and that maintenance 

is considered part of normal operations. /d. at 2205. The Contestants also characterized the 

work as a maintenance task. See L&D Br. at 4 (referring to the "welding maintenance task"). In 

fact, Dress characterized his duties as overseeing maintenance and testified that maintenance is 

part of normal operations at the quarry. Tr. 56, 111-12; see also Tr. 53 (referring to maintenance 

of the discharge chute under the surge bin). Thus, we conclude that patching the hole is clearly 

covered by.the phrase "normal operations" and that the standard adequately expresses the 

Secretary's intention to reach that activity. From our conclusion that the meaning of the standard 

is clear based on ·its plain language, it follows that the standard provided the operator with 

adequate notice of its requirements. See Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 

1997) (holding that adequate notice provided by unambiguous regulation). 

3 We agree with the Contestants that the standard does not specify procedures for 

clearing or inspecting the surge bin, e.g., that the vibrators be run longer than 25 to 30 minutes, 

the scaling bar be used to clear loose materials, or the bin be inspected from above. By his 

statements that Lafarge should have required that the bin be inspected from above and that the 

bar be used to remove any loose material (18 FMSHRC at 2209, 2212), the judge merely 

articulated the means that were available to Lafarge for further action. 

1144 
Based on the foregoing, we conclude that substantial evidence4 supports the judge's 

determination that Lafarge violated section 56.16002(a)(1) by "expos[ing Harder) to entrapment 

by the caving or sliding of materials" inside the surge bin. We therefore affirm the judge's 

finding of a violation. 

B. Unwarrantable Failure 

The unwarrantable failure terminology is taken from section 1 04( d) of the Mine Act, 30 

U.S.C. § 814(d), and refers-to more serious conduct by an operator in connection with a 

violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined 

that unwarrantable failure is aggravat~d conduct constituting more than ordinary negligence. Id. 

at 2001 . Unwarrantable failure is characterized by such conduct as "reckless disregard," 

"intentional misconduct," "indifference," or a "serious lack of reasonable care." I d. at 2003-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 

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

failure test). In addition, the Commission h.as relied upon the high degree of danger posed by a 

violation to support an unwarrantable failure finding. See BethEnergy Mines, Inc., 14 FMSHRC 

1232, 1243-44 (Aug. 1992) (finding unwarrantable failure where unsaddled beams "presented a 

danger" to miners entering the area); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 

1992) (finding violation to be aggravated and unwarrantable based upon ."common knowledge 

that power lines are hazardous, and ... that precautions are required when working near power 

lines with heavy equipment"); QuinlandCoals, Inc., 10 FMSHRC 705, 709 (June 1988) (finding 

unwarrantable failure where roof conditions were "highly dangerous"). As we explain below, we 

conclude that substantial evidence supports the judge's determination that Lafarge's failure to 

effectively use the vibrators and scaling bar to protect Harder from falling materials constituted a 

serious lack of reasonable care sufficient to find an unwarrantable failure. 

We agree with the judge that the hazard posed by loose materials falling from atop the 

surge bin was serious and thus warranted heightened precautions by the operator. 18 FMSHRC 

at 2209. As Lafarge's foreman, Dress was held to a high standard of care in this matter. E.g., 

Midwest Material Co., 19 FMSHRC 30,35 (Jan. 1997). The record indicates that Dress 

observed "loose and general[] large rock" on top of the dead bed in the surge bin. Gov't Ex. 2 at 

5. In fact, it is undisputed that both Dress and Harder observed loose rock in the bin. The basis 

of this unwarrantable failure charge, therefore, is their unfounded conclusion that the rock was 

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

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

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

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

Coal Co., 11 FMSHRC 2159,2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

u.s. 197,229 (1938)). 

1145 
located where it would not cause hann.5 Dress' observation of"loose and general large rock" on 

top of the cone-shaped interior of the surge bin should have served as a forceful warning that a 

dangerous situation existed. He simply assumed, based on his belief that the rock was laying 

outside the ridge, that it would not cause a perilous situation. Instead, the mere presence of the 

rock should have prompted Dress to take reasonable measures to ascertain whether it was 

actually positioned so that it would do no harm and, if not, to make efforts to remove the rock. 

Given the fact that the observation of the loose rock should have generated extra 

precautions, and an inquiry as to whether the rock presented a danger, our dissenting colleague's 

insistence that the danger was not obvious (slip op. at 18) misses the point: the fact that the 

danger might not have been immediately obvious did not absolve Dress of his duty to investigate 

. the situation. If he had not hastily jumped to a conclusion, but instead conducted the more 

thorough examination that the presence of loose rock warranted, the danger would have become 

quite apparent. As the judge pointed out, Lafarge could have taken further steps to ensure safety 

in this dangerous situation, i.e., it could have required that the bin be viewed from above and that 

a scaling bar be used to remove the loose materials, but Lafarge failed to take those steps. 18 

FMSHRC at 2209. The judge correctly concluded that Dress' failure to recognize the danger and 

to take further steps to clear the bin reflected a "serious lack of reasonable care. "6 /d. at 2209-10. 

In sum, we agree with the judge that Lafarge's procedures were inadequate, and that Lafarge 

should have required more. ld. 

We find unavailing the Contestants' argument that, by following the quarry's 

longstanding procedures of clearing and inspecting the surge bin, which were consistent with 

industry practice, Lafarge's actions did not amount to unwarrantable failure. Regardless of the 

accuracy of this statement, we are not inclined to permit Lafarge to disregard the clear 

5 Wt? believe that our dissenting colleague places undue weight on the judge's general 

statement that rock outside the ridge of the dead bed "slid[ e ]s away from the openings and does 

not pose a hazard_to anyone working below." Slip op. at 16 (quoting 18 FMSHRC at 2202). As 

the dissent acknowledges, however, the judge also found that rock inside the ridge of the dead 

bed "slid[e]s down through the opening." /d. Rock falling inside the ridge was the rock that 

covered Harder, which is the focus of this inquiry. The falling of rock inside the ridge supports 

the judge's conclusion that "p~tching the hole from inside the bin potentially was a very 

dangerous job." 18 FMSHRC at 2209. The judge explained his finding of high danger as 

follows: "Any miner assigned to do the job was subject to being injured or killed unless loose 

rock above the miner was removed. This potential threat required heightened precautions on the 

part ofLafarge and those acting for it." ld. The fallen material constitutes substantial evidence 

in support of the judge's finding of danger. 

6 The judge's discussion made clear that, contrary to the dissent's claim (slip op. at 16), 

his analysis went far beyond the mere occurrence of the accident to support his unwarrantable 

failure finding. See 18 FMSHRC at 2209-10. 

1146 
requirements of the standard, and substitute in its place a questionable industry practice that does 

not satisfactorily prevent the entrapment of miners. 

Commissioner Verheggen contends that we are not utilizing the Commission's traditional 

unwarrantable failure test. Slip op. at 17-18. He faults us for focusing on the high degree of 

danger posed by the violation and failing to question whether the danger was obvious and 

whether the operator was on notice that greater compliance efforts were required. !d. at 17-19. 

Contrary to our colleague's assertion, we are not departing from the Commission's precedent 

setting forth the criteria for an unwarrantable failure determination. Rather, consistent with prior 

Commission cases on unwarrantable failure, we are applying only those factors that are relevant 

to the facts of this case.7 Furthermore, the judge's analysis fully addressed these factors when he 

found that, given the high degree of danger, the operator should have been aware of the 

hazardous condition but instead failed to take appropriate measures to remove the loose rock 

poised' above the miner. _18 FMSHRC at 2209; see Cyprus Emerald Resources Corp., 20 

FMSHRC 790,813-15 (Aug. 1998) (operator's awareness of significant and obvious danger 

supports unwarrantable failure). In addition, the judge's decision clearly reflects his view that 

the danger was obvi"ous. 18 FMSHRC at 2209 ("Harder was required to work in the immediate 

presence of loose rock"). 

When violations have exposed miners to extremely dangerous conditions, the 

Commission has not always relied on most of the remaining factors. A case in point is Midwest 

Material, in which the Commission found unwarrantable an operator's extension of a crane 

boom. 19 FMSHRC at 34-37. As in the present case, the Commission relied on the high degree 

of danger and the heightened standard of care required of a foreman. !d. at 34-35. We 

specifically rejected the judge's reliance on the short duration of the violation and contrasted the 

high degree of danger presented in that case with the cases involving coal accumulations, stating: 

The judge's reliance on the relatively brief duration of the violative 

cond_uct was misplaced, in view of the high degree of danger posed 

by the hazardous condition and its obvious nature. Given the 

extreme hazard created by [the foreman's] negligent conduct, that 

misconduct is readily distinguishable from other types of vio~ations 

- such as those involving the accumulation of coal dust- where 

the degree of danger and the operator's responsibility for learning 

of and addressing the hazard may increase gradually over time. 

7 We note that Commissioner Verheggen also concludes that three of the factors are 

irrelevant in this case. Slip op. at 19 n.4. 

1147 
!d. at 36.8 These principles apply with equal force to the present violation. 

We also disagree with our dissenting colleague's emphasis on the need to prove causation 

-in this case, how the rock fell. Slip op. at 17 (speculating that rock fall may have been caused 

by Harder's actions). He cites to no Commission decisions, and we know of none, where the 

Secretary was required to prove causation of harm in a case involving unwarrantable failure. The 

aggravated conduct required for a finding of unwarrantable failure is the kind of conduct that, 

like simple negligence, results in a breach of duty. See W. Page Keeton et al., Prosser and 

Keeton on the Law of Torts§ 30, at 164 (5th ed. 1984). On the other hand, causation is required 

in "a cause of action founded upon negligence, from which liability for damages to another's 

interests will follow." !d. at 164-65. Causation is not at issue in an unwarrantable failure case in 

which the relevant inquiry is simply whether aggravated conduct occurred, not whetJ:ter one 

entity harmed another. 

Based on the foregoing, we conclude that substantial evidence supports the judge's 

determination that Lafarge demonstrated a serious lack of reasonable care by failing to clear the 

loose materials atop the surge bin to adequately protect Harder. Therefore, we afflrm the judge's 

unwarrantable failure holding. 

C. Section 11 O(c) Liability 

Section 11 0( c) of the Mine Act provides that, whenever a corporate operator violates a 

mandatory safety or health standard, an agent of the corporate operator who knowingly 

authorized, ordered, or carried out such violation shall be subject to an individual civil penalty. 

30 U.S.C. § 820(c). The proper inquiry for determining liability under section 110(c) is whether 

the corporate agent knew or had reason to know of a violative condition. Kenny Richardson, 3 

FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 

461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358,362-

64 (D.C. Cir: 19~7). To establish section 11 0( c) liability, the Secretary must prove only that an 

individual knowingly acted, not that the individual knowingly violated the law. Warren Steen 

Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United States v. Int'l Minerals & 

Chem. Corp., 402 U.S. 558, 563 (1971)). An individual acts knowingly where he is "in a 

position to protect employee safety and health [and] fails to act on the basis of information that 

gives him knowledge or reason to know of the existence of a violative condition." Kenny 

Richardson, 3 FMSHRC at 16. ·Section 11 0( c) liability is predicated on aggravated conduct 

constituting more than ordinary negligence. BethEnergy Mines, 14 FMSHRC at 1245. Here, we 

8 See also, e.g., Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (Aug. 1994) 

(holding l:Jnwarrantable, without discussion of obviousness, extent, .duration, or abatement 

efforts, a foreman's decision to permit use of shuttle car with serious brake problem) (citing 

Quin/and Coals, 10 FMSHRC at 708-09). 

1148 
conclude that substantial evidence supports the judge's determination that Dress is liable under 

section 11 0( c) of' the Mine Act for knowingly authorizing, ordering, or carrying out the violation. 

We agree with the judge's conclusion that Dress should have taken additional steps to 

clear the surge bin. 18 FMSHRC at 2210-12. In Kenny Richardson, the Commission stated that 

a person has reason to know under section 11 0( c) "when he has such information as would lead a 

person exercising reasonable care to acquire knowledge of the fact in question or to infer its 

existence." 3 FMSHRC at 16 (quoting United States v. Sweet Briar, Inc., 92 F. Supp. 777, 780 

(W.D.S.C. 1950)). The record establishes, and the Contestants do not dispute, that Dress had 

actual knowledge of the loose materials atop the surge bin yet failed to take measures that were 

available to remove the loose materials before allowing Harder to enter the bin. Instead, Dress 

relied on his opinion that the materials would not fall. This opinion was based on Dress' visual 

inspection of the bin from the discharge chute. The judge concluded that such inspection did not 

give a sufficiently full perspective of what remained in the bin and that "[i]nspection from above 

also was necessary." 18 FMSHRC at 2209. Under the circumstances, we conclude that Dress 

had reason to know of the serious danger of falling rock and that his belief that Harder could 

safely enter the surge bin was unreasonable. Cf New Warwick Mining Co., 18 FMSHRC 1365, 

1370-71 (Aug. 1996) (finding aggravated conduct under unwarrantable failure analysis because 

operator's efforts to achieve compliance with standard were unreasonable). As Lafarge's agent,9 

Dress was responsible for recognizing the serious hazard posed by the loose materials and "it 

became incumbent upon him to meet a standard of care proportionate with the danger." 18 

FMSHRC at 2211-12. Instead, Dress relied on procedures that the judge found "were wholly 

inadequate." !d. at 2212. 10 

With respect to the concerns of our dissenting colleagues, we note that both 

Commissioners Riley and Verheggen refer to the "judgment call" involved in assessing the 

safety of the surge bin. Slip op. at 13-14 & 20. In this regard, Commissioner Verheggen asserts 

that no "information" was available to provide Dress with either actual knowledge or reason to 

know of the violative condition. !d. at 19. 11 As we have stated, Dress actually observed the 

9 There is no dispute regarding Lafarge's corporate status and Dress' status as its agent. 

18 FMSHRC at 2210. 

10 We note that section f l 0( c) does not require that an agent intend that someone wi11 be 

hurt. See Kenny Richardson, 3 FMSHRC at 15 (rejecting argument that willfulness must be 

shown to establish personal liability under Coal Act). 

11 Commissioner Verheggen's reliance on Inspector Strickler's one time use of the 

isolated phrase ')udgment call," in an attempt to overturn the judge (slip op. at 20), is 

inconsistent with the precepts of substantial evidence review. Under section 113(d)(2)(A)(ii) of 

the Mine Act, 30 U.S.C. § 823(d)(2)(A)(ii), the Commission is charged with reviewing a judge's 

findings to determine whether substantial evidence supports them. See Eastern Associated Coal 

1149 
loose rock from the vantage point of the discharge chute and, ~ubsequently, failed to view the bin 

from above. Such a view would have provided Dress with further information to enable a betterinformed "judgment call" regarding the condition inside the surge bin. Based on these .facts, we 

conclude that substantial evidence supports the judge's determination that Dress demonstrated a 

"lapse of judgment" in this case. 18 FMSHRC at 2212. 

In addition, Commissioner Verheggen asserts that the judge's finding that Dress acted in 

good faith and with a degree of care appropriate to the condition inside the surge bin militates 

against finding section 110(c) liability. Slip op. at 19. Although Dress may have had a good 

faith belief that the surge bin was safe, as we explained above, his belief was unreasonable. An 

unreasonable belief that a practice is safe, even ifheld in good faith, is not a defel;lse to liability 

under section 110(c). See Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (Aug. 1994) 

(reasonable, good faith belief of mine manager served as a defense to section 11 0( c) liability); cf 

Cyprus Plateau, 16 FMSHRC at 1615-16 (unreasqnable albeit good faith beliefofforeman was 

no defense to unwarrantable failure). Moreover, contrary to our colleague's assertion, the judge 

specifically found that Dress failed to attain a proper standard of care. See 18 FMSHRC at 2211-

12 ("Rather than [meet a standard of care proportionate to the danger], Dress relied on the usual 

procedures ... [that] were wholly inadequate."). 

Based on the foregoing, we conclude that substantial evidence supports the judge's 

determination that Dress demonstrated aggravated conduct by failing to clear the loose materials 

atop the surge bin to adequately protect Harder. Therefore, we affirm the judge's section llO(c) 

holding. 

Corp., 13 FMSHRC 178, 185 (Feb. 1991) ("(t]he Commission's task is not a de novo reweighing 

of somewhat conflicting evidence but a determination of whether there is substantial evidence in 

the record to support the judge's conclusions"). 

In any event, Inspector Strickler claimed only "[t]hat's a judgment call whether it's loose 

or not" and was not using that phrase to refer to an overall assessment of the bin's safety. Tr. 78. 

And, as we have noted, in this case it is uncontroverted that the material was loose, and the 

critical question was where the material was located. Moreover, the inspector emphasized that 

Dress "should have made sure that there wasn't any loose material in that bin. That'.s taking a 

little bit more time and more precaution. . . . [Dress should have] take[ n] another pair of eyes up 

at the top of the feeder and look down on it and see if anything could be loose." Tr. 82. 

1150 
Ill. 

Conclusion 

For the foregoing reasons, we affirm the judge's findings of violation, unwarrantable 

failure, and section llO(c) liability. 

Marc Lincoln Marks, Commissioner 

Robert H. Beatty, Jr. Comrnissi~er 

1151 

• 
Coil111l!ssionet Riley, concurring in part and dissenting in part: 

I concur with the opinion insofar as it affirms the judge's determinations that Lafarge 

violated 30 C.F .R. § 56.16002( a)(l) and that the violation was the result of Lafarge' s 

unwarrantable failure to comply with the standard. Slip op. at 4-9. I respectfully dissent, 

however, from the majority's decision to affirm the judge's determination that Theodore Dress is 

personally liable under section 110(c) of the Mine Act, 30 U.S.C. § 820(c). Slip op. at 9-11. I 

conclude that substantial evidence does not support the judge's determination that Dress is liable 

under section 110(c) . .18 FMSHRC 2199, 2210-12 (Dec. 1996) (ALJ). 

With respect to the underlying violation, the judge found, and the Commission majority 

agrees, that Lafarge's actions constitute more than ordinary negligence and indicate "a serious 

lack of reasonable care," arguably the lowest threshold of aggravated conduct necessary to 

support characterization of the violation as unwarrantable. Slip op. at 7, 9; 18 FMSHRC at 2210; 

see Emery Mining Corp., 9 FMSHRC 1997,2003-04 (Dec. 1987); Rochester & Pittsburgh Coal 

Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 

133, 136 (7th Cir. 1995). Regarding individual liability, the judge emphatically stated: "It is 

certain that Dress did not intentionally violate the standard." 18 FMSHRC at 2211. However, 

the judge further stated: "[I]t also is clear that intent is not the issue." Id. Therefore, the 

question before the Commission is whether Dress knew or should have known of the violative 

condition (Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d 

632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining Co. 

v. FMSHRC, 108 F.3d 358,362-64 (D.C. Cir. 1997)) in order to have "knowingly acted" when 

he violated the standard (Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) 

(citing United States v.Int'l Minerals & Chem. Corp., 402 U.S. 558,563 (1971))). 

The record substantiates that Dress followed Lafarge's supposedly industry standard 

procedures for inspecting the surge bin prior to the repair work. The judge found, and the 

Commission majority agrees, that, industry standard or not, Lafarge's procedures were 

insufficient in light of the potential for entrapment, which actually occurred. Slip op. at 7-8; 18 

FMSHRC at 2209, 2212. The judge also conceded "the company's r~lative unfamiliarity with 

emptying the bin." 18 FMSHRC at 221 0, 2212. In fact, the judge went so far as to find: "The 

evidence leads inescapably to the conclusion that no one at Lafarge knew enough about emptying 

the bin to be certain that the procedures were adequate. . . . The company should have required 

more." Id. at 2209. It is in this factual context that the Commission must evaluate Dress' 

conduct. Surely the Commission majority does not intend to hold corporate agents automatically 

liable as individuals for the unwarrantable violations of operators. Are corporate agents expected 

to possess greater experience and expertise than their employers, as the judge and Commission 

majority would require in the instant case? "Knowing" conduct arises not from a presumption of 

omniscience, but is supposed to be viewed from the perspective of a person exercising reasonable 

care under the circumstances. Kenny Richardson, 3 FMSHRC at 16 (quoting United States v. 

Sweet Briar, Inc. , 92 F. Supp. 777, 780 (W.D.S.C. 1950)). Applying that principle here to what 

1152 
the judge describes as a 'judgment call" (18 FMSHRC at 2209) leads to the inescapable 

conclusion that Dress could not have been expected to have knowingly acted in violation of the 

standard. 

Accordingly, I would reverse the judge,s section llO(c) holding, which I believe lacks 

the requisite support in the record. 

1153 
Commissioner Verheggen, concurring in part and dissenting in part: 

I agree with my colleagues that the judge's finding of a violation of section 

56.16002(a)(l) is supported by substantial evidence, and I concur in result with Part II.A of their 

opinion as further explained below. I disagree, however, with their conclusion that the judge 

properly found that the violation was unwarrantable and that Theodore Dress was personally 

liable for it. I therefore dissent from Parts II.B and Il.C of the majority's opinion. 

1. Violation 

I agree with my colleagues that Lafarge's repair activities constituted "normal operations" 

as that phrase is used in section 56.16002(a)(l), and were thus clearly covered by the standard. I 

disagree, however, with the basis for the majority's finding of a violation. They state that "the 

bin was furnished with vibrators and a scaling bar to remove loose rock," and "conclude that the 

standard requires effective use of' these devices. Slip op. at 5. They find a violation because 

"Lafarge failed to effectively use [these devices] to clear the loose materials before allowing 

Harder to enter the bin." !d. 

I find that Lafarge violated the standard on much narrower grounds. As my colleagues 

note, section 56.16002 "is clearly designed to achieve a result." !d. Although they fail to 

mention what that result is, I find the standard is clearly intended to prevent miners from being 

"exposed to entrapment by the caving or sliding of materials" in surge bins such as that used by 

Lafarge, and in which "loose unconsolidated materials are stored, handled or transferred." 

30 C.F.R. § 56.16002(a)(l). Here, there is no dispute that Harder was entrapped by a rock fall in 

the surge bin. 18 FMSHRC 2199, 2204 (Dec. 1996) (ALJ). In light ofthis fact alone, I find that 

Lafarge violated the standard, it being well established that operators are liable without regard to 

fault for violations of the Mine Act. See, e.g., Asarco, Inc. v. FMSHRC, 868 F.2d 1195 (lOth 

Cir. 1989). 

2. Unwarrantable Failure 

In essence, the judge found that Lafarge had a heightened duty of care because "patching 

the hole from inside the bin potentially was a very dangerous job." 18 FMSHRC at 2209. In 

support of his finding that Lafarge failed to meet its duty of care, the judge observed that 

although the company "relied ·on procedures normally used at the quarry to make sure the bin 

was safe . .. [,] no one at Lafarge knew enough about emptying the bin to be certain that the 

procedures were adequate." !d. He concluded that Lafarge's violation was unwarrantable 

insofar as "the company was guilty of a serious lack of reasonable care" because it "should have 

required more," such as requiring workers to inspect the bin for loose material "from both below 

and above," and to scale from above for loose material "no matter how· long the vibrators had 

run." !d. 

1154 
I find the judge's analysis problematic for several reasons. First, it is unclear from his 

decision what objective criteria he used to conclude that Lafarge's conduct amounted to "a 

serious lack of reasonable care." !d. In fact, the only criteria lie cites are Nelson's uncertainty 

regarding "how long it took to clear the bin" and Inspector Strickler's opinion that "[i]nspection 

[of the bin] from above also was necessary." !d. I find these two factors alone an insufficient 

basis on which to hold Lafarge responsible for an unwarrantable failure to comply with section 

56.16002( a)(l ), particularly when viewed in the context of other findings made by the judge and 

the testimony ofLafarge employees. 

Most of the facts of this case are undisputed. The damage to Lafarge's surge bin required 

that a repair be made inside the bin. Tr. 21. Before making the repair, Lafarge followed its 

standard practice of rutu1ing the bin empty to clear it of any loose·.material. 18 FMSHRC at 

2203; Tr. 97-98. Harder and Dress then visually examined the bin to determine if any loose 

material remained. 18 FMSHRC at 2203; Tr. 23, 40-41; see also Tr. 98-99 (describing 

operator's standard procedure "to check the bin for loose material"). The judge noted that both 

men "concluded that it was safe for Harder to patch the hole." 18 FMSHRC at 2203. The judge 

also found that although Harder and Dress saw some loose material, they determined that "the 

rock was lying on the side of the dead bed away from the opening," and that they both believed it 

would not fall. !d. 

Notably, there is no indication in the judge's opinion that he discredited this testimony. 

In fact, commenting generally on the function of the dead bed, the judge agreed with Harder and 

Dress that rock in the location where they observed the loose material posed no hazard. 

Specifically, the judge found that "[r]ock on the sides of the ridges opposite the openings slid[e]s 

away from the openings and does not pose a hazard to anyone working below." !d. at 2202 

(emphasis added). He further found that "[r]ock on the other sides of the ridges slid[e)s down 

through the openings"- and, presumably, could pose a significant hazard to workers in the bin. 

!d. In view of these findings, I believe that the critical question in this case is the location from 

which the material fell on Harder. 

Unfortunately, the judge left this critical question unanswered insofar as he failed to 

comment on Dress' testimony that the loose material he observed "was on the outside edge of the 

dead bed." Tr. 41. Instead, the judge simply concluded that Lafarge's violation was 

unwarrantable by virtue of the fact that Harder was trapped by falling rock. A more careful 

review of the record reveals that-the Secretary failed to adduce any evidence addressing the 

question of the location from which the rocks fell. This holds true for her rebuttal case as well -

she offered no evidence to rebut Dress' testimony that the loose rock was situated on what the 

judge found to be the safe side of the dead bed. See 18 FMSHRC at 2202. 

The record thus contains only evidence that any loose material present was in a location 

from which the judge found it would not pose a hazard. I find that this evidence, and the absence 

of any contrary evidence from the Secretary, contradicts the judge's conclusion that the violation 

was unwarrantable. Indeed, I could affirm the judge's conclusion only ifl were to presume that 

1155 
the roek that feU on Harder was on the hazardous side of the dead bed, a presumption for which I 

can fmd no record support. 

1 

Nor is there any evidence in the record concerning how the rock fall occurred - only that 

it occurred in the first instance. The closest the record comes to revealing the cause of the 

accident is testimony by Dress that Harder apparently climbed "off of the vibrator" up to a ledge, 

and that this may have caused the material to fall. Tr. 125-26. Although the judge did not 

comment on this testimony in his decision, it raises the possibility that Harder may have jarred 

some rock loose when climbing up to the ledge. If true, this scenario would cast considerable 

doubt on the judge's finding ofunwarrantable failure, which rests primarily on his conclusion 

that, in light of the high degree of danger associated with working in the surge bin, Lafarge did 

not do enough to ensure that there was no loose rock in the bin before Harder entered it (18 

FMSHRC at 2209-10). If Harder's actions caused the fall, however, there is little Lafarge could 

have done to prevent the accident. I believe that the judge erred in failing to consider, and make 

findings of fact concerning, Dress' testimony regarding whether Harder's actions might possibly 

have caused the rock fall. 

Indeed, I find the judge's decision legally insufficient because he failed to examine the 

various factors the Commission has traditionally used in determining whether an operator's 

conduct is unwarrantable. These factors include the extent of the violative condition, the length 

of time that it has existed, whether the yiolation is obvious or poses a high degree of danger, 

whether the operator has been placed on notice that greater efforts are necessary for compliance, 

the operator's efforts in abating the violative condition, and the operator's knowledge of the 

existence ofthe violation. See Cyprus Emerald Resources Corp., 20 FMSHRC 790,813 (Aug. 

1998); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 

FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); 

Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp. , 6 FMSHRC 1596, 

1603 (July 1984). 

Obviously, these factors need to be viewed in the context of the factual circumstances of 

a particular case - some factors may be irrelevant to a particular factual scenario. But here, the 

judge did not go beyond examining the degree of danger posed by Lafarge's violation - and 

erred as a result. The majority also fails to apply the Commission's traditional unwarrantable 

failure test. Instead, like the judge, they collapse the test into a single dispositive factor: whether 

a "high degree of danger [isJposed by a violation." Slip op. at 6. I find this approach at odds 

with the Commission precedent, under which it is clear we must look at a variety of factors when 

1 The majority nevertheless concludes that "[r]ock falling inside the ridge was the rock 

that covered Harder." Slip op. at 7 n.5. No citation to the record is offered in support of this 

contention. In fact, no such record evidence exists. 

1156 
detennining whether a violation is unwarrantable.2 Moreover, I believe that the "test" used by 

the judge and the majority hopelessly blurs the distinction between gravity and the aggravated 

negligence which the tenn "unwarrantable failure" describes. 

Examining factors other than the danger of the violation, I find further reason to reverse 

the judge's unwarrantable failure detennination. From the testimony of Dress and Harder that 

they saw no danger when they inspected the bin, for example, it follows that the danger here was 

anything but obvious.

3 Indeed, the judge acknowledged that had Dress believed there was any 

danger, Dress would "never" have assigned Harder to repair the bin. 18 FMSHRC at 2211. And 

even the Secretary's key witness, Inspector Strickler, conceded that any assessment of the 

condition of the bin would have to have been based on "a judgment call." Tr. 78. It is clear from 

2 The cases on which the majority bases its test all involved more than just danger as 

factors contributing to findings ofunwarrantable failure. See Midwest Material, 19 FMSHRC at 

35 (finding "the obvious nature of the hazard" to be "a further indication" of unwarrantable 

failure in addition to the "extreme danger" ofthe violation); Cyprus Plateau Mining Corp., 16 

FMSHRC 1604, 1608 (Aug. 1994) (unwarrantable finding based on fact the operator was "aware 

of the shuttle car's serious brake problem and failed to follow up appropriately by remedying 

it"); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992) (operator "deliberate[ly)" 

removed signs that warned of dangerous roof conditions in violation of their own procedures for 

overriding decisions to "danger off' areas); Warren Steen Constr., Inc., 14 FMSHRC 1125, 

1129-30 (July 1992) (considering variety of aggravating factors, including fact that operator 

knew and was specifically warned that work was taking place too near power lines, and 

operator's inadequate measures taken to guard against known hazards associated with power 

lines); Quinland Coals, 10 FMSHRC at 709 (finding unwarrantable failure based primarily on 

''the extensive and obvious nature of the conditions, the history of similar roof conditions, and 

(the operator's] admitted knowledge ofthe conditions"). See also Rock of Ages Corp., 20 

FMSHRC 106, 115-16 (Feb. 1998) (considering various factors in finding unwarrantable failure 

in addition to extre~e danger associated with violation, i.e., undetonated pyrodex explosives, 

including fact that a foreman's "discovery of the four unexploded bags ofpyrodex should have 

alerted [him] to the possibility of additional misfires," "the experimental nature of the pyrodex 

blasting" at the operator's quarry, and operator's inability to explain "its negligence and the lack 

of safety precautions"). 

3 The majority claims that ''the judge's decision clearly reflects his view that the danger 

was obvious." Slip op. at 8 (citing 18 FMSHRC at 2209). In fact, he made no findings that 

could support such an inference about his views. The majority also cites a Cyprus Emerald case 

for the proposition that an "operator's awareness of .. . obvious danger supports" a finding of 

unwarrantable failure. !d. (citing 20 FMSHRC at 813-15). Unlike the hazard in this case, 

though, at issue in Cyprus Emerald was a ''very large refuse pile- estimated by MSHA to be as 

much as 1 million tons," which the operator had pennitted ''to develop over 18 years without 

attention to commonly accepted engineering principles." 20 FMSHRC at 814. 

1157 
the record-that no one at Lafarge actually knew a violation existed. Nor had the company been 

placed on notice that greater efforts were necessary for compliance. In fact, the need to make 

repairs to surge bins arose very infrequently (Tr. 34, 94-95), so the judge was correct in noting 

"no one at Lafarge knew enough about emptying the bin to be certain that the procedures were 

adequate" (18 FMSHRC at 2209)- or, as the record amply reveals, that the procedures were 

inadequate. Based on the unrebutted testimony of Harder and Dress that they believed the bin 

was safe, testimony the judge recited in his decision without disapproving it, Lafarge had no 

reason to believe its procedures were inadequate.4 Accordingly, I would reverse the judge's 

finding of unwarrantable· failure. 

3. Section 11 O(c) 

I find the judge's conclusion that Dress was liable under section llO(c) similarly lacking 

in record support or legal foundation. As the majority correctly states, section 11 0( c) liability 

arises when an individual "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," and that such liability is predicated on aggravated conduct constituting more 

than ordinary negligence. Slip op. at 9. Here, however, there was no "information" that would 

have given Dress either actual knowledge or reason to know of the existence of a violative 

condition in the surge bin. Moreover, the record contains no evidence that Dress engaged in any 

aggravated conduct - that he, for example, recklessly disregarded an obvious hazard, or 

intentionally ordered Harder to repair the bin knowing full well that a rock fall was imminent, or 

was indifferent to Harder's safety. Nor do I find any .evidence indicating he showed a serious 

lack of reasonable care. 

To the contrary, the evidence- and more importantly, the judge's findings- indicate 

that Dress acted in good faith and with a degree of care appropriate to the conditions apparently 

existing before the accident. Indeed, the conditions observed by both Harder and Dress posed no 

apparent hazard. They testified that some loose material was present, but that it "was lying on 

the side of the dead bed away from the opening" (18 FMSHRC at 2203), a position from which 

the judge found rock "slid[e]s away from the openings and does not pose a hazard to anyone 

working below" (id. at 2202, emphasis added). Moreover, the judge included in his factual 

findings Dress' testimony that he did not believe work in the bin posed any danger. /d. at 2203. 

The judge also credited Harder's testimony "that Dress never would assign [Harder] to do a job 

that Dress believed was dangerous." /d. at 2211. In a similar vein, Harder testified as follows 

after being examined and cross examined: 

4 Other factors traditionally considered by the Commission that do not appear to apply to 

this case include the extent of the violative condition, how long it existed, or Lafarge's efforts to 

abate it. 

1158 
Tr. 37. 

Could I just say one thing? . . . I'd just like to say on Ted's behalf 

that ... I do not believe that ... ifhe thought it was dangerous in 

there, I don't believe he would have ever sent me in there to do that 

job. 

But the most significant record evidence that contradicts the Secretary's allegation that 

Dress' conduct was aggravated is Inspector Strickler's remarkable statement that to assess the 

safety ofthe bin would necessarily have involved "a judgment call." Tr. 78. The term 

')udgment call" means "any subjective or debatable determination(,] personal opinion or 

interpretation." Random House Dictionary ofthe English Language 1036 (2d ed. 1987). In 

other words, a ')udgment call" is a determination on which reasonable minds might differ. In 

support of its affirming the judge's finding of section 11 O(c) liability, the majority argues that 

Dress' "belief that Harder could safely enter the surge bin was-unreasonable." Slip op. at 10. 

Yet Dress' belief was based on what the Secretary, through her witness at trial, concedes was "a 

judgment call." I fail to see how Dress' conduct can be found unreasonable when it is a matter 

on which even the Secretary concedes reasonable minds could differ. Nor do I believe that the 

majority's rationale is supported by Commission precedent, under which more than mere 

unreasonableness is required to support a finding of section 11 0( c) liability. 

Dress' reasonable, good faith belief that no hazard existed in the surge bin is amply 

supported by the record, and leads me to find the judge erred in finding section 11 0( c) liability. 

Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (Aug. 1994). Accordingly, I would reverse the 

judge's finding. 

- -

jlu_. 

Theodore F. Verheggen, Com 

1159 
Distribution 

William K. Doran, Esq. 

Heenan, Althen & Roles 

1110 Vermont Avenue, N.W., Suite 400 

Washington, D.C. 20005-3593 

Cheryl Blair-Kijewski, Esq., 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge David Barbour 

Federal Mine Safety and Health Review Commission 

Office of the Administrative Law Judge 

5203 Leesburg Pike 

Falls Church, VA 22041 

1160 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEY ARD #280 

DENVER, CO 80204-3582 

303-844-3577/F AX 303-844-5268 

October 8, 1998 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 98-11-M 

A.C. No. 10-01634-05517 

v. Portable Plant No. 1 

WESTERN CONSTRUCTION, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Megan J. Green, Esq., Office of the Solicitor, U.S. Department of Labor, 

Seattle, Washington, for Petitioner; 

Maurice 0. Ellsworth, Esq., Howard, Ellsworth, Ipsen & Perry, Boise, 

Idaho, for Respondent. 

Judge Manning 

This case is before me on a petition for assessment of penalty filed by the Secretary of 

Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Western 

Cons1!Uction, Inc. ("Western Construction"), pursuant to sections 105 and 11 0 of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The petition 

alleges one violation of the Secretary's safety standards. A hearing was held in Boise, Idaho. 

I. · FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Western Construction operates Portable Plant No. 1 (the "plant"), which was in Elmore 

County, Idaho, at the time of MSHA' s inspection. The plant was being used to produce 

aggregate for a road construction project. The plant includes a jaw crusher and a feeder conveyor 

(the "feeder"). The feeder is at an angle and is used to convey rock to the crusher. (Ex. R-1). 

The feeder is about 25 feet long and about 4 feet wide. Heavy metal aprons are attached to the 

frame of the feeder to keep the rock from spilling off the sides of the feeder. These aprons are at 

an angle so that the feeder assembly resembles a large "V" with a flat bottom. A metal bar 

c01mects the top of the aprons on each side of the feeder near the discharge end. The conveyor 

itself consists of metal cleats or slats, sometimes called flights, that are similar to the track on a 

dozer. The slats move rock that is pushed onto the feeder at the feeder trap up to the top of the 

feeder where the rock dumps into the jaw crusher. The vertical distance between the slats and 

the top of the aprons is about four feet. 

1161 
-Rock is pushed onto the feeder at the bottom with dozers operated by Claude Sarbaum 

and other employees. The dozer operators are instructed to push rock that is four feet in diameter 

or less onto the feeder. When the jaw crusher becomes plugged with material, it is shut down to 

free the material. 

On June 23, 1997, MSHA Inspector Robert Capps arrived at the plant to conduct an 

inspection. Soon after he arrived, he observed Mr. Sarbaum standing on the feeder near the 

discharge end. At the time Inspector Capps observed this condition, he was about 150 feet away 

near the tool trailer. He became quite excited and motioned to Mr. Sarbaum to get off the feeder. 

Sarbaum walked back to his dozer and waited. Inspector Capps walked to the dozer and asked 

Mr. Sarbaum to step down. The inspector put his hands on Sarbaum's shoulders and told him 

that he was an MSHA inspector and that it was a violation of MSHA regulations to walk on the 

feeder. 

Inspector Capps issued a combination 104(a) citation and 107(a) imminent danger order 

(the "citation") soon after he observed the condition. ~ It alleges a violation of 30 C.F .R. 

§ 56.11001, as follows: 

A Cat D 1 ON dozer operator was observed using an unsafe means 

of access to go from the primary feeder trap to the primary jaw 

crusher to assist in the removal of an oversized rock from the jaw. 

The dozer operator walked/climbed across the primary feeder, 

which was mostly full of loose material, to the jaw area. The jaw 

was still rotating as he arrived at the opening above it. He could 

have fallen into the moving jaw. He was not secured from fall with 

a safety belt and lanyard (56.15005). There was an imminent 

danger of falling into the jaw. 

Inspector Capps determined that the violation was of a significant and substantial nature 

("S&S") and was the result of the mine operator's high negligence. Section 56.11001 provides 

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

citation was terminated when Mr. Sarbaum was removed from the feeder and instructed on safe 

access. On June 26, 1997, Inspector Capps modified the citation to "add [an] additional violative 

evaluation" for section 56.15005. That safety standard provides that safety belts and lines shall 

be used where there is a danger of falling. 

The Secretary filed a petition for assessment of civil penalty for this citation on 

November 3, 1997, charging Western Construction with a violation of section 56.11001. The 

proposed penalty of$1,500 was specially assessed under 30 C.F.R. § 100.5. The Secretary 

conducted an investigation to determine whether any agent of Western Construction should be 

assessed a penalty under section 11 0( c) of the Act, but no charges were filed. 

1162 
- A. Fact of Violation 

1. Summazy of the Testimony 

The facts in this case are in dispute. Inspector Capps testified that he was standing at the 

main controller's booth at the plant when he observed Mr. Sarbaum on the feeder. (Tr. 12). 

Although he was about 150 feet away, the inspector was at an elevated position and his view was 

not obstructed except by dust in the air. (Tr. 13). He stated that the feeder-is about 15 feet above 

the ground at its highest point. (Tr. 16). The inspector stated that he saw Mr. Sarbaum walking 

up the feeder towards the discharge end near the jaw crusher. (Tr. 17). The feeder was not 

running and the jaw crusher had been turned off. The crusher was still rotating from its own 

momentum. Inspector Capps described the metal bar connecting the aprons on both sides of the 

feeder assembly as a "spreader bar." (Tr. 15). He stated that it was made of tubular· steel, that it 

keeps the aprons in position, and that it can also be used to lift the feeder assembly. I d. He 

stated that the vertical distance between the slats of the feeder and the spreader bar is about six 

feet. 

Inspector Capps testified that Mr. Sarbaum traveled beyond the spreader bar and looked 

down into the jaw crusher that was still rotating. (Tr. 17). He was not tied off. The inspector 

testified that he could clearly see that Mr. Sarbaum was between the spreader bar and the 

discharge end of the feeder despite the fact that he was 150 feet away. He also testified that the 

feeder was mostly full of rock. (Tr. 18). The rock was more than halfway up the sides of the 

aprons. (Tr. 19). Thus, the inspector believes that Mr. Sarbaum walked on top of the uneven 

rocky surface to reach the discharge end of the feeder. 

Inspector Capps believes that Western Construction violated the standard because a safe 

means of access was not provided. Mr. Sarbaum could have fallen off the sides of the feeder as 

he walked up the feeder and he could have fallen into the jaw crusher as he looked down into the 

crusher. (Tr. 19). The inspector believes that Mr. Sarbaum could have tripped on the rough, 

uneven surface of the rocks on the feeder. (Tr. 21). 

MSHA Inspector Robert Palmer conducted an investigation of the incident. He testified 

that the rocks on the feeder presented a tripping and falling hazard. (Tr. 54-55). He stated that if 

Mr. Sarba:um had fallen, he could have been seriously injured. He stated that a fall into the 

crusher could have been fatal. 

Mr. Sarbaum, an experienced heavy equipment operator, testified that on June 23 he was 

gathering rocks with the dozer and pushing them onto the feeder trap. (Tr. 99). He· stated that he 

pushes a new load onto the feeder every five to ten minutes. Another dozer operator was also 

pushing rock into the feeder on that day. (Tr. 1 02). When he was getting ready to push one load 

onto the feeder, he saw that the feeder was empty and it was not running. (Tr. 101). He looked 

at the feeder operator, who works in a booth past the discharge end of the feeder, and she 

signaled that the jaw crusher was plugged. Mr. Sarbaum did not push any more rock onto the 

feeder. He was concerned that something that he had pushed onto the feeder could have caused 

1163 
-· -

the crusher to beeome plugged, so he got off his dozer, walked onto the feeder, traveled up the 

feeder to look down into the crusher, and saw a big rock in the crusher that was causing the 

problem. (Tr. 1 02) 

Mr. Sarbaum testified that before he went into the feeder, he signaled to the crusher 

operator who sits in the control house. (Tr. 1 04). Through hand signals, he indicated to the 

crusher operator that he was going onto the feeder. ld. The crusher operator, Jake Chavarria, 

waved back. Mr. Chavarria disappeared for a short time, returned to the control house, and 

waved a second time. ·(Tr. 119). Mr. Sarbaum understood this to mean that the feeder had been 

locked out. Mr. Sarbaum then walked onto the feeder. He was not instructed to travel up the 

feeder by his supervisor and he did not expect to assist in freeing the plug. Mr. Sarbaum testified 

that he ''was just curious to see what happened." (Tr. 11 0). 

Mr. Sarbaum testified that he walked only as far as the spreader bar, which he called the 

"safety bar." (Tr. 1 03). He stated that he would never travel past the safety bar because to do so 

would be unsafe, particularly when the jaw is moving. He also testified that the feeder was 

virtually empty of rock when he walked on it. Mr. Sarbaum stated that there was very little rock 

on the feeder when he approached it in his dozer. !d. As he walked up the feeder, he did not 

have to step over rocks because there "wasn't any material" on the feeder. (Tr. 106). He stated 

that he could see the slats of the feeder. He testified that there was some rock and dirt on the 

feeder and that he could see 90% of the slats. (Tr. 122). 

Mr. Sarbaum testified that when he reached the safety bar, he was able to look over the 

end of the feeder and see part of the crusher. (Tr. 1 08). He could see a large rock lodged in the 

crusher. (Tr. 1 06). He stated that the safety bar was at about the level of his chest and that he c;lid 

not travel beyond the bar. The bar was about five feet from the discharge end of the feeder. (Tr. 

1 07). Mr. Sarbaum testified that he was not in any danger when he walked up the feeder because 

it was nearly empty and the four-foot high aprons on the feeder would keep him from falling off 

the feeder even ifhe were to stumble. In addition, he was not in danger of falling off the end of 

the feeder into th~ jaw crusher because he did not travel beyond the safety bar. 

He stated that he has walked up the feeder in similar circumstances on a number of 

occasions and that he normally walks back down the feeder and returns to his dozer once he sees 

what is plugging the crusher. In this instance, he saw someone waving his arms at him near the 

tool trailer. (Tr. 111). After Mr. Sarbaum returned to his dozer, the man approached him and 

motioned him to step down from the dozer. The man put his hands on Mr. Sarbaum's shoulders, 

identified himself as an MSHA inspector, and told him that he should not be walking on the 

feeder when the crusher is in motion. Mr. Sarbaum became upset when the inspector put his 

hands on his shoulders. 

2. Discussion and Analysis 

For the reasons set forth below, I find that the Secretary established a violation of section 

56.11001. First, I fmd that the standard applies to the feeder because Mr. Sarbaum walked up the 

1164 
-· 

feeder to look into the crusher. The standard provides that a safe means of access shall be 

provided and maintained to all working places. Working place is defined as "any place in or 

about a mine where work is being performed." 30 C.F.R. § 56.2. Although the area near the 

discharge end of the feeder is not a working place in the traditional sense, Mr. Sarbaum walked 

up the feeder for a specific purpose: to see what was in the crusher. He was not directed to look 

into the crusher by his supervisor, but this was his general practice and his supervisor was aware 

of this practice. The feeder conveyor was the normal travelway that was used by Mr. Sarbaum. 

Accordingly, I fmd that the end of the feeder was a working place. 

The parties dispute the amount of rock that was on the feeder at the time. Inspector 

Capps testified that the feeder was about half full of rock. Mr. Sarbaum testified that it was 

mostly empty. For reasons that are not clear to nie, Inspector Capps did not inspect the feeder 

after he talked to Mr. Sarbaum near his dozer. The inspector observed the condition from a 

distance of 150 feet, walked to the dozer, and talked to Mr. Sarbaum, but he did not examine the 

feeder from the dozer. The inspector stated that he did not need to look at the feeder from the 

dozer because he saw everything he needed to see from 150 feet away. (Tr. 37). The feeder is at 

an angle and it would be difficult to see the conditions inside the feeder from a distance of 150 

feet because of the aprons. He had a clear view of the discharge end of the conveyor, however. 

Given the fact that Mr. Sarbaum was actually on the feeder and the inspector only saw the 

feeder from a considerable distance, I generally accept Mr. Sarbaum's account of the conditions 

inside the feeder. I fmd that the feeder was mostly empty but that there was rock on the feeder. 

Mr. Sarbaum testified that he saw a large rock in the crusher; he did not say that he saw a lot of 

smaller rock and dirt on top of or around the large rock. It is likely that at least some rock 

remained on the feeder when it was shut down. Thus, I find that rocks of various sizes were on 

the fe-eder but that it was not half full, as the inspector believed. I fmd that the discharge end of 

the feeder contained a considerable amount of rock, as observed by the inspector. 

The testimony also conflicts as to whether Mr. Sarbaum traveled past the spreader bar 

when he looked into the jaw. On one hand, Mr. Sarbaum testified at the hearing that he did not 

go beyond the spreader bar and that he would never do so because it would be dangerous. He 

also made this statement to Inspector Palmer during the special investigation. (Tr. 53). 

Inspector Capps testified that he saw Mr. Sarbaum walk up the feeder, get on the other side of the 

spreader bar and look down into-the jaw crusher. (Tr. 17). He testified that he is positive that 

Mr. Sarbaum crossed under the spreader bar because he had a clear view of the discharge end of 

the feeder from his observation point. (Tr. 18). 

I fmd that it would have been difficult to see much of the crusher if one were to stand 

behind the spreader bar. Mr. Sarbaum is over six feet tall and the spreader bar was about six feet 

above the surface of the feeder. It is possible that he could have observed a small part of the 

crusher without crossing under the spreader bar. I fmd that the testimony of Inspector Capps is 

more credible on this issue, however. I rely, in part, on the photographs introduced by Western 

Construction. (Ex. R-1, R-2). Given the angle of the feeder and the distance between the 

spreader bar and.the end of the feeder, it is unlikely that anyone could see a significant part of the 

1165 
_. 

crusher from that location. He would have had to travel past the spreader bar or leaned forward 

under the bar to examine the crusher. 

I agree with counsel for the Secretary that even if Mr. Sarbaum did not travel beyond the 

spreader bar, he was still in danger of falling. (Tr. 127-28). He walked up the feeder to the 

spreader bar and rocks on the feeder presented a stumbling hazard. He could have stumbled and 

sprained an ankle or hit his head on one of the aprons. Other cases present similar situations. In 

one case, an administrative law judge affinned an S&S violation of section 56.1100 1· because an 

employee, who was walking on an empty elevated conveyor belt, could have been knocked over 

by a gust ofwind. Walker Stone Co., 14 FMSHRC 603,606 (April1992). In USS, 13 FMSHRC 

145, 154 (January 1991), an administrative law judge affinned a citation issued under this 

standard because of an accumulation of rock on a walkway that was up to eight inches deep. It is 

not necessary to find that Mr. Sarbaum would have fallen off the feeder or fallen-into the crusher 

in order to sustain a violation. As stated above, Mr. Sarbaum could have injured himself without 

falling from the feeder. · 

Mr. Sarbaum testified that he believed that it was safe for him travel up the feeder to 

observe the crusher and pointed to the fact that no employee of Western Construction has ever 

been injured while walking on a feeder. I credit Mr. Sarbaum's testimony in this regard, but the 

fact that an employee has never been injured does not mean that an injury would never have 

occurred if this practice continued at Western Construction. I find that the Secretary established 

that Western Construction did not provide Mr. ·sarbaum with safe access to the discharge end of 

the feeder. I find that it was reasonably likely that Mr. Sarbaum or another employee would be 

injured if this practice continued at the mine. Accordingly, I affirm the violation. 

B. Significant and Substantial Nature of the Violation 

An S~S violation is described in section 104(d)(1) of the Mine Act as a violation "of 

such nature as could significantly and substantially contribute to the cause and effect of a ... mine 

safety or health hazard." A violation is properly designated S&S "if based upon the particular 

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

to will result in an injury or illness of a reasonably serious nature." National Gypsum Co., 3 

FMSHRC 822, 825 (April 1981 ). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the 

Commission set out a four-part. test for analyzing S&S issues. Evaluation of the criteria is made 

assuming "continued normal mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 

(July 1984). The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April1988). 

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

underlying violation of the safety standard; (2) a discrete safety hazard, a measure of danger to 

safety, contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

1166 
I find that the Secretary established the first two elements of this test. There was a 

violation of the standard and a measure of danger to safety contributed to by the violation. The 

issue is whether there was a reasonable likelihood that the haiard contributed to by the violation 

will result in an injury. I fmd that the Secretary established that an injury was reasonably likely 

in this instance and that such an injury would be of a reasonably serious nature. 

As stated above, the surface of the feeder was uneven, there were rocks of various sizes 

along the feeder, and it was reasonably likely that Mr. Sarbaum would trip and fall) if the practice 

of walking up the feed.er continued unabated at the plant. There was no handrail or other device 

that one could hold to steady oneself. It was also reasonably likely that a fall would result in an 

injury of a reasonably serious nature. An employee could twist his ankle) break a bone, or hit his 

head on the apron. If the feeder contained a significant amount of rock, someone could fall off 

the side of the feeder because the apron would no longer act as a barrier to such a fall. It was also 

reasonably likely that Mr. Sarbaum or another dozer operator would fall off the-feeder into the 

crusher if this practice continued. Western Construction argues that the stumbling hazard 

presented in the feeder is no greater than the stumbling hazard presented while walking on the 

ground at the plant. I disagree. Anyone walking up the feeder is restricted to a confined area and 

he cannot walk around obstructions as he could on the ground. 

C. Other Issues 

At the hearing, the Secretary presented evidence of a violation of section 56.15005. The 

petition for assessment of penalty does not mention a violation of that section. Exhibit A, 

attached to the petition) lists only a violation of section 56.11001. The citation itself) including 

the modification) refers to section 56.15005. I hold that the only issue before me is the allegation 

concerning section 56.11001. In civil penalty cases) the Secretary proposes civil penalties for 

alleged violations of her safety and health standards. A separate penalty is proposed for each 

alleged violation. In this case only one penalty has been proposed. I reject the Secretary's 

argument that the proposed penalty in this case covers both alleged violations. Although it is 

clear that Mr. Sarbaum was not wearing a safety belt or line, a penalty was not proposed for that 

alleged violation ~d any issues concerning that safety standard are not before me. 

Western Construction presented evidence that it operates the plant in a safe manner. It 

argues that it is not "renegade company') and that its policy "emphasizes safety first." (Tr. 70). It 

introduced two safety awards it received from MSHA's Holmes Safety Association. Western 

Construction received one award for working 100,392 hours from January 1986 through March 

1995 without any fatal accidents or permanent total disability accidents. (Ex. R-3). It received 

another award for working 50,392 hours between April1991 through March 1995 without 

incurring a lost time injury. (Ex. R-4). Western Construction's achievements in this regard are 

commendable. It must be stated) however) that safe mine operators are issued citations from 

MSHA. The fact that Western Construction was issued the subject citation does not mean that it 

is a renegade company or that it does not emphasize safety. The citation simply indicates that the 

conditions described in this citation presented a safety hazard to employees. 

1167 
II. APPROPRIATE CIVIL PENALTY 

-

Section 1 fO(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. The parties stipulated to many of the criteria. I find that seven 

citations were issued at the plant in the 24 months preceding June 23, 1997. The plant worked 

about 20,692 man-hours per year at that time. Western Construction worked about 41,293 manhours per year at that time. The violation was rapidly abated. The penalty assessed in this 

decision will not have an adverse effect on Western Construction's ability to continue in 

business. The violation was S&S and it created a serious safety hazard. 

Inspector Capps determined that Western Construction's negligence was high because it 

was a normal practice at the mine for dozer operators to walk up the feeder to find out what was 

in the jaw crusher. (Tr. 21-22). The employees at the plant did not consider this practice to 

create a significant hazard. Although I disagree with this assessment, management at the plant 

was not indifferent to safety issues. I credit the testimony of Eldon Heath, the crusher 

superintendent, that safety is a primary concern at the plant. (Tr. 88). Nevertheless, I fmd that 

there was a lack of reasonable care in allowing employees to walk along the feeder. I hold that 

Western Construction's negligence was moderate to high. Based on the penalty criteria, I fmd 

that a penalty of $1 ,000 is appropriate for this violation. 

III. ORDER 

Accordingly, Citation No. 7959086 is AFFIRMED and Western Construction, Inc., is 

ORDERED TO PAY the Secretary of Labor the sum of$1,000.00 within 40 days of the date of 

this decision. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Megan J. Green, Esq., Office o_fthe Solicitor, U.S. Department of Labor, 1111 Third Avenue, 

Suite 945, Seattle, WA 98101-3212 (Certified Mail) 

Maurice 0. Ellsworth, Esq., Howard, Ellsworth, Ipsen and Perry, P.O. Box 637, Boise, ID 

83701-0637 (Certified Mail) 

RWM 

1168 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

.: 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10TH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 

BLACK DIAMOND CONSTRUCTION 

INC., 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

9 1998 

EQUAL ACCESS TO JUSTICE 

PROCEEDING 

Docket No. EAJ 98·1 

Formerly WEVA 98-1 

DECISION 

Before: Judge Barbour 

1bis case is before me on an Application for Award ofFees and Expenses under the 

Equal Access to Justice Act (EAJA) (28 U.S.C. § 2412). Black Diamond Construction, Inc. 

(Black Diamond) filed the application against the Secretary of Labor's Mine Safety and Health 

Administration (MSHA), based upon the dismissal of a civil penalty case (Docket No. 

WEVA 98·1) the Secretary brought against the company pursuant to section 105(a) of the 

Federal Mine Safety and Health Act of 1977 (Mine Act) (30 U.S.C. § 815(a)). 

The EAJA provides for the award of attorney's fees and other expenses to a prevailing 

party against the United States or an agency thereof unless the position of the government "was 

substantially justified or that special circumstances make an award unjust" (28 U.S.C. 

§ 2412(d)(l)(A)). Black Diamond contends the Secretary's allegation that the company violated 

two mandatory training standards found in 30 C.F.R. Part 48 was "not substantially justified." 

PROCEEDINGS IN DOCKET NO. WEV A 98-1 

On October 17, 1997, the Secretary filed with the Commission a petition for the 

assessment of civil penalties against Black Diamond. The petition was assigned Commission 

Docket No. WEV A 98·1. The petition alleged that Black Diamond committed two violations of 

30 C.F .R. Part 48. Order No. 4404455 cited the company for a violation of section 48.25(a), a 

mandatory training standard requiring in part that each new miner receive no less than 24 hours 

of new miner training. The order charged that the company was an independent contractor of a 

coal operator and that the company's employee, Brian Casto, was performing general labor 

duties at a work site without having received the required training. Citation No. 4404941 cited 

the company for a violation of section 48.29( c), a mandatory standard requiring an operator to 

1169 
certify- a miner received the training required and keep the certification form at the mine for 

2 years, or for 60 days after termination of the miner's employment. The citation charged that a 

copy of the form required for Black Diamond's employee, Matthew Adkins, was not available at 

the mine site. 

The Secretary proposed the assessment of a civil penalty of $108 for the alleged violation 

involving Brian Casto and a civil penalty of $50 for the alleged violation involving Matthew A~ . 

The company denied it violated the regulations, and the case was assigned to 

Commission Administrative Law Judge Jerold Feldman, who required the parties to confer to 

discuss settlement, and if they were unable to settle the case, to submit synopses of their legal 

arguments, expected proofs, lists of expected exhibits, and stipulations. After the parties 

determined a settlement was not possible, Black Diamond responded to Judge Feldman by 

maintaining it was not liable for the alleged violations because it was MSHA's policy to exempt 

from Part 48 individuals engaged in construction work of the type the company contracted to 

perform (Response to Prehearing Order 1 ). On the other hand, the Secretary advised the judge 

that the company had contracted to drain an impoundment at a preparation plant in order to allow 

longwall mining to commence under the impoundment and in her opinion the company's 

workers "were hired to make alterations to the impoundment, and thus were repair and 

maintenance workers subject to the Part 48 training requirements" (Prehearing Statement 2). 

The Secretary detailed how the inspector, Ernest Thompson, saw Brian Casto on mine 

property and inquired as to his duties, how Brian Casto replied he had driven a truck on the 

property on three occasions, and how this lead Thompson to conclude Casto was a general 

laborer on the mine site and thus was a "miner" as defined in Part 48 (lQ. 3). Similarly, 

Thompson had observed Adkins working on mine property and determined Adkins, like Brian 

Casto, was.a "miner" subject to the training regulations (lil.). 

Upon receipt of the responses, Judge Feldman noticed the case for hearing. One day 

before the hearing, the Secretary moved for dismissal on the grounds the case was moot. The 

· Secretary stated, "After reviewing the record ... the Secretary ... vacated the .. . order and 

citation" (Sec's Mot. To Dismiss). The Secretary attached copies of the vacations to the motion. 

Each was dated the day before the hearing, and each was worded: "After consultation with the 

Office of the Solicitor, [the order or citation] is hereby vacated" (lil Attachs 1 and 2). Judge 

Feldman then dismissed the civil penalty case. 

THE EAJA APPLICATION 

In its EAJA Application, Black Di~ond asserted that on the day the order and citation 

were issued, William Casto met wi~ Inspector Thompson and informed Thompson the company 

1170 
was de~olishing the impoundment. 1 Black Diamond claimed Casto also told Thompson that 

employees of independent contractors who performed such work were exempt from the training 

requirements (Appl. 2). According to Black Diamond, Thompson dismissed Casto's contention. 

Casto characterized Thompson as "all puffed up and not wanting to listen to any reasonable 

discussion of the facts of the case" (Appl. Exh. 1 at 11 ). 

The company also maintained that later, in a June 25, 1997 post-inspection conference at 

MSHA's Madison, West Virginia field office, William Casto again contended the cited 

employees were exempt. Casto reminded Don Ellis, an MHSA supervisor, as well as other 

MSHA personnel, of provisions in MSHA's Proiram Policy Memo (EfM) that exempted Black 

Dimond's employees from the requirements. Casto told Ellis he had spoken with an MSHA 

official in Mount Hope, West Virginia, who confirmed that surface construction workers were 

exempt from the requirements. 

Casto characterized Ellis's response as one of"try[ing] to confuse the issue" (Appl., 

Exh. 2 at 35). According to Casto, Ellis stated MSHA never considered the work in which Black 

Diamond was engaged to be surface construction work. In Casto's opinion Ellis "wavered from 

one side of the room to the other" (hl). When Casto asked for" 'some information, a case, rules 

and regulations that explain[ed] MSHA's position,' " Ellis' only response was "[l]t's always 

been MSHA's policy' , (liL). 

Finally, Black Diamond stated that after the Secretary filed her petition for the assessment 

of civil penalties, the company continued to maintain it was exempt from the training 

regulations. It responded to Judge Feldman by citing the ffM. and reiterating its position that 

under the £EM the Part 48 regulations were not applicable to the work it was doing. 

In Black Diamond's opinion, the pertinent provisions of the fEM are found in 

Volume III, Part 48.2/48.22. Part 48 is devoted to training and retraining miners. 

Section 48.2/48.22 concerns, among other things, "Inde.pendent Contractor Trainini." It states in 

part: 

A. Coveraie and Irainini Requirements 

Independent contractors working at a mine are miners for Part 48 training 

purposes, except as explained below: 

* * * * * 

This policy does not cover independent contractors who are shaft and 

slope workers, surface construction workers, or workers involved in underground 

1

/ William Casto is a vice president of Black Diamond and Brian Casto's father. 

1171 
mine construction work that causes the mine to cease operation (III £fM 14) 

(emphasis added)) . ..: 

The ffM. defines surface construction work as: 

Persons Perfouning Construction Work 

Construction work includes the building or demolition of any facility, [or] 

the building of a major addition to an existing facility (III PPM 14(a)(emphasis 

added)). 

The f£M concludes: 

If workers are performing construction work as described above - I1Q 

trainini is required (III PPM 14(b) (emphasis added)). 

In the company's view, because the Secretary knew the company was engaged in 

demolishing the impoundment but did not quite the case until after the company was "forced to 

go to the expense of a legal defense and deposing witnesses[,] [j]ustice ... requires an [EAJA] 

award (Appl. 7). 

THE SECRETARY'S RESPONSE 

The Secretary answered the EAJA Application by asserting: (1) that the company had 

not established financial eligibility for an award of attorney's fees and expenses under the EAJA; 

(2) that her position Brian Casto and Adkins were subject to the training requirements was 

"substantially justified" within the meaning of the EAJA; and (3) thatthe attorney's fees applied 

for by the company were in excess of those allowed by the EAJA. 

The majority of her arguments concerned the issue of substantial justification. In making 

them, the Secretary highlighted what she believed to be the relevant facts. She stated that during 

February 1997, an impoundment elimination plan was filed with .MSHA. The impoundment was 

part of a refuse disposal facility that in tum was part of a preparation plant. The impoundment 

had been in existence for several decades and was created by damming a mountain hollow. The 

dam was made of coal fmes and rock. Water and slurry were impounded behind the dam. Under 

the ~limination plan, water was to be pumped out of the impoundment, the impoundment area 

was to be filled, and the dam was to be rendered inoperable in order to allow a mine beneath the 

impoundment to extend its longwall mining limits without fear of water seepage {Answer 1, 

citini to Attach. A). 2 The company, an independent contractor, was hired to pump out the water 

in the impoundment and to backfill the area, among other things. 

2

/ Attach. A is a copy of the impoundment elimination plan in effect when the order and 

citation were issued on May 15, 1997. A revised plan was submitted in Aprill997. It was 

approved on May 23, 1997 (~counsel for Sec's letter ofSeptember21, 1998 and counsel for 

Black Diamond's letter of September 29, 1998). 

1172 
On May 15, 1997, Thompson and an inspector trainee went to the preparation plant after 

they learned that work was being done at the impoundment. At the impoundment site they met 

Brian Casto, who was standing by a truck. Thompson asked Casto if he had driven the truck, and 

Casto answered he had. Casto told the inspectors he had also preshift examined the truck. 

· Thompson began to inspect the truck. He asked Brian Casto to move the truck and to apply its 

brakes. Casto seemed to have difficulty getting the truck to go in gear, and Thompson concluded 

Casto did not know much about the truck. Thompson asked Brian Casto for his training records. 

Casto responded he had not been trained (Ans. 3). 

Adkins, who was operating a bulldozer at the impoundment site, carne over to the truck 

and Thompson began to inspect the bulldozer. Thompson asked Adkins about his training, and 

Adkins stated he had not received any training. Thompson then ''told both men that they were 

being withdrawn from the mine site for not having the requisite training," and it was agreed that 

everyone would go to the mine office (Ans. 4). On the way to the office the niiners' 

representative who accompanied the inspector and the trainee told Thompson that in addition to 

operating the truck, Brian Casto had been out on the impoundment in a boat (~). 

At the office, Casto stated he had driven the truck on three different occasions to pick up 

fuel. Based on Casto's use of the truck, Thompson concluded Brian Casto was a new miner 

perfonning general labor duties and that he should have had new miner training as required by 

section 48.25(a). Because Casto admitted he had not been trained, Thompson issued Order 

No 4404455, charging Black Diamond with a violation of the standard (Ans. 4). 

William Casto then came to the office. He told Thompson that Brian Casto was not a 

miner, but Brian Casto confinned he had driven the truck three different times, and that he had 

gone out on the impoundment in a boat. Thompson told William Casto that Brian Casto was 

considered a miner under the law and must receive newly employed, inexperienced miner 

training (Ans. 5, citin~ to Attach. D (Thompson notes)). 

In addition to discussing the training status of Brian Casto, Thompson asked to see copies 

of Adkins's training certificates. Because the certificates could not be found, Thompson 

concluded the company violated section 48.29(c), the standard requiring the certificates be kept 

at the mine site (Ans. 5). 

Turning to the June 25, .1997 conference, the Secretary agreed William Casto argued to 

MSHA the company was perfonning "construction work" because it was demolishing the 

impoundment, and that Casto directed MSHA' s attention to page 14(b) of the ffM which states 

"[c]onstruction work includes the ... demolition of any facility." According to the Secretary, 

MSHA's position, as represented by Ellis and others, was that Brian Casto was a miner because 

he was driving the truck and was going out on the impoundment, and in any event MSHA never 

considered impoundments to be construction sites (Ans. 7). 

1173 
Finally, the Secretary contended that prior to responding to Judge Feldman, counsel for 

the Secretary discussed the matter with Thompson, reviewed the case law and the f,fM, and 

based on a belief that Casto and Adkins were hired, to make alterations to the impoundment, 

concluded both were performing general labor duties like a "miner" and thus were subject to the 

training regulation (Ans. 7-8). It was only as the trial date approached and the expected 

witnesses were deposed that the Secretary, "based on her prosecutorial discretion," vacated the 

order and citation (liL 8). 

IS BLACK DIAMOND ELIGIBLE FOR AN A WARD 

The Commission's rules implementing the EAJA are found at 29 C.F.R. Part 2704. 

Commission Rule 2704.100 provides for the award of attorney fees and other expenses to 

"eligible . .. entities who are parties to certain administrative proceedings (called 'adversary 

adjudications') before [the] Commission" (29 C.F.R. § 2700.100). To be eligible, the applicant 

must be a "party" as that term is defined in 5 U.S.C. § 55l(c)(3). Section 551(c)(3) defines a 

"party" as including "a person or agency named or admitted as a party .. . in an agency 

proceeding." Under the Commission's rules party status is accorded "[a] person, including the 

Secretary or an operator, who is named as a party" (29 C.F.R.§ 2700.4). The Commission's rules 

also state the definitions in section 3 of the Mine Act apply (29 C.F.R. § 2700.2). Section 3(f) 

defines as "person" as "any individual, partnership .. . corporation, firm subsidiary of a 

corporation, or other organization" (30 U.S.C. § 802(f)). Black Diamond is a corporation named 

by the Secretary as the respo~dent in Docket No. WEV A 98-1. That case was an adversary 

adjudication. Black Diamond therefore is a "party" for EAJA purposes. 

The rules also require a corporation that is a party to have a net worth of not more than 

$7 million and not more than 500 employees. The net worth and the number of employees are 

determined as of the date the underlying proceeding was instituted (29 U.S.C. §§ 2700.104(b)(4), 

2700.104(c)). 

Black Diamond asserted in its application that when the civil penalty proceeding was 

filed on October 17, 1997, the company was owned by Ahem & Associates, a company that 

contracts with the mining industry. According to Black Diamond, on that date Ahem had 

122 employees, Black Diamond had 17 employees, and the net worth of Ahem was $2,530,839 

(Appl. 4-5). 

In her answer, the Secretary did not question the number of employees but, citing Dun & 

Bradstreet Business Records Plus for West Virginia, noted that Ahem had annual sales of 

$20,701 ,000 for the fiscal year ending September 30, 1997. She also noted the comptroller of the 

company declined to make a financial statement to Dun & Brandstreet. The Secretary stated that 

with annual sales of more than $2q million and no independent verification of net worth, the 

issue of whether Black Diamond met the financial eligibility requires of the EAJA was 

unresolved (Ans.10-11). 

1174 
To support its contention of a net worth of not more than $7 million, Black Diamond 

submitted two pages of a statement titled "Consolidated Balance Sheets, Ahem & Associates, 

Inc. and Subsidiary, as of September 30, 1997" (Black Diamond Reply, Exh. A). In view of the 

Secretary's concerns, I found the submission insufficient to establish the company's fiscal 

eligibility for an EAJA award because the submission lacked an indication as to who prepared it, 

lacked an assurance as to its accuracy, and was incomplete. Accordingly, I ordered the company 

to produce a complete financial statement showing the net worth of Ahem & Associates. I 

required the statement t~ be based upon a CPA's examination conducted in accordance with 

generally accepted auditing standards and presenting fairly the financial position of the company 

as found by a CPA in accordance with generally accepted accounting principles. 

In response, the company submitted a complete independent auditor's report showing the 

consolidated financial position of Ahem & Associates, Inc. and Black Diamond-as of . 

September 30, 1997, the closest date to the commencement of underlying civil penalty case for 

which a complete statement could be obtained. 3 The report indicates that although the company 

did indeed have revenues of more than 20 million dollars, significant costs and expenses were 

associated with the revenue, and the net worth of the company was not more than the statutory 

limit (Independent Auditors' Report 2-4). 

Therefore, I find the company has met the statutory requirements for eligibility. 

WAS THE SECRETARY'S POSITION SUBSTANTIALLY JUSTIFIED 

The burden is on the Secretary to establish her litigation position was "substantially 

justified." The EAJA does not define "substantial justification., However, the standard was 

directly adopted from the context of federal civil litigation discovery, where the essence of 

"substantial justification" is whether "reasonable people could genuinely differ" (~ The 

Essentials oftfze Equal Access to Justice Act, 56 La. L. Rev. 22 (1995)). Thus, in drafting the 

3

/ Prior to submitted the report counsel for Black Diamond ui effect orally moved that the 

statement be placed under seal and not be subject to public disclosure. She based her request 

upon the sensitive nature of the fmancial material revealed in the report. Counsel for the 

Secretary did not oppose her request, provided she be allowed to review the material and be 

afforded the opportunity to copy whatever she deemed necessary. I orally granted the motion, 

subject to counsel for the Secretary's request. 

Counsel for the Secretary reviewed the material in camera. She did not find it necessary 

to make copies. The report remains under seal in the record. While it may be reviewed by the 

Commission or another appellate body, it is exempt from disclosure under the Freedom of 

Information Act, and it is exempt from any other review of the file by the public(~ 29 C.F.R. 

§ 2704.202(b)). J 

1175 
legislation, Congress stated that "where the Government [could] show that its case had a 

reasonable basis both in law and fact, no award [would] be made" (I d. 23), and the Supreme 

Court echoed this statement by defining "substantially justified" as meaning that the 

government's position must have a "reasonable basis both in law and fact'' (Pierce v. 

Underwood, 487 U.S. 552, 565 (1988); ~ &sQ James M Ray, employed by Leo Journagan 

Construction Co., In-c. 20 FMSHRC _, Docket No. EAJ 96-4 (Sepember 30, 1998) (slip op. 8-

9) ). The focus is directly upon the justification of the government's conduct and the judge must 

ask, whether reasonable people could differ on the validity of the government's position(~ 56 

La. L. Rev. 51). · 

The judge also must keep in mind the fact that the government has settled or withdrawn 

from a case does not necessarily signal an unreasonable position. Other factors, such as changes 

in an agency's policies or priorities, or a lack of resources, or developments outside the agency's 

control may cause the government to drop a proceeding it reasonably expected to win (Kuhn v. 

Board of Governors of the Federal Reserve System, 930 F.2d 39 (D.C. Cir. 1991)). 

When, as here, the government is accused of violating its own regulations or rules, the 

question is whether there are reasonable grounds for debate about the ·meaning and application of 

the rule or whether instead the agency acted in direct violation of the regulatory or policy 

prescription. If the government's legal position is fairly debatable, the government is not liable. 

In other words, the government must be alerted by plain statutory or regulatory language or by 

clear case precedent before its position can be assailed as unjustified (56 La. L. Rev. 77). 

In this case the Secretary is accused of taking a position at odds with her ff.M. Operators 

and contractors repeatedly have been reminded by the Commission that the Secretary's policies 

and interpretations as announced in the ffM may put them on notice as to the requirements of 

the Act and the regulations (4, Dolese Bros., 16 FMSHRC 689,694 (April1994); Daanen & 

Janssen, Inc., (20 FMSRHC 189,194 (March 1998)). Thus, in addition to the Act and the 

regulations, operators and contractors have come to rely upon the ffM and to abide by its 

policies. Given this reliance, the pronouncements and policies set forth in the ff.M are 

equivalent to the Act and regulations for EAJA purposes, and the Secretary cannot take an 

enforcement position that unreasonably varies from the ffM without subjecting herself to EAJA 

liability. 

The primary issue in the underlying case was whether the work being performed at the 

impoundment was "construction work." The Secretary acknowledges that under the ffM 

independent contractor workers who perform "construction work" are classified as "construction 

workers," that the demolition of any facility constitutes such work, and that construction workers 

are exempt from training. However, she also points out that workers performing "maintenance 

or repair work" must receive Part 48 training and that the f£M states "maintenance or repair 

work" includes the "upkeep or alteration of equipment or facilities" (Sec's Ans. 15, citing to III 

PPM 15). She believes it reasonable to consider Black Diamond's work as alteration work not as 

demolition and construction work. 

1176 
While there is some dispute between the parties as to whether William Casto made clear 

the company's position to Thompson on the day the order and .citation were issued, the Secretary 

concedes that by June 25, 1997, at the latest and as a result of Casto's meeting with Ellis and 

others, MSHA fully understood that the company claimed it was exempt from the regulations 

because it was performing "construction work" as described in the ffM (Sec. Ans. 7-8). 

Consequently, as of June 25, the Secretary could proceed without incurring liability for 

attorney's fees and expenses only if her position was reasonable. 

As noted, the f£M states, "[i]ndependent contractors working at a mine are miners for 

Part 48 training purposes, eXlJect as e-xplained below" (III £EM 48 at 14(emphasis added)). It 

also states, the Secretary's policy with regard to training independent contractors "does not cover 

independent contractors who are shaft and slope workers, surface construction workers or 

workers involved in mine construction work that causes the mine to cease operation. All other 

independent contractors must receive the appropriate Part 48 training" (I.d.). The statement 

explains that persons engaged in the "building or demolition of any facility, [and] the building of 

a major addition to an existing facility" are considered to be "surface construction workers" 

(I.Q.. 14(b)). On the other hand, independent contractors "who are maintenance or service works 

contracted by the operator to work at the mine for frequent or extended periods" must be trained 

(M. 14(a)). Maintenance or repair work includes the "upkeep or alteration of ... facilities" 

(lll. 15). 

Prior to Thompson's inspection, MSHA knew by word of mouth that construction work 

was underway at the impoundment site (Thompson Dep. 29). In addition, the impoundment 

elimination plan filed with MSHA described the work to be done (Sec. Ans., Attach. A). It 

specifically stated that the purpose of the project was "to eliminate the impounding capability of 

[the] existing ... refuse disposal facility" (M. at 4). This work required the draining, backfilling, 

and grading of the impo~dment (Thompson Dep. 10, 54). When the project was completed, the 

area would be. considered "a course refuse pile" and would be subject to regulations different 

from those for the· impoundment (Shelton Dep. 9). 

The specific work required to eliminate the facility included using up to 1.4 million cubic 

yards of coal refuse to cover and fill the existing impoundment. The project involved spreading 

the refuse with bulldozers, as the impoundment was pumped dry. The project also included the 

construction of diversion ditches· (Shelton Dep. 12), and the construction of sludge cells 

(Sec. Ans., Attach. A). In addition, it involved the total elimination of25 to 30 feet of the 

impoundment dam and use of the dam material as fill (Shelton Dep. 11 ). In effect, the dam 

would cease to be a dam. 

It tortures logic beyond reason to maintain a project designed to "eliminate the 

impoundment capability" of an existing refuse disposal facility and to replace it with a different 

type of refuse disposal facility, a replacement that included the construction of new structures, 

was not "construction work" as described in the ffhl., especially when the project is considered 

against the backdrop ofMSHA's explanation of"construction work." 

1177 
The Se~retary acknowledges that in 1979, then MSHA Administrator Joseph Cook issued 

a memorandum stating that construction of impoundments and refuse piles was considered 

construction work. The memorandum did not state the demolition of an impoundment was 

construction work (Sec. Ans. 17-18). However, as the Secretary agrees, the 1979 memorandum 

was superseded by the PPM, and the ITM clearly states that demolition is "construction work." 

It is logical to regard the ffM as broadening what the Secretary regards as "construction work," 

not as continuing her omission, and demolition of the impoundment is exactly what Black 

Diamond was doing. 

"Demolition" is "the act or process of demolishing," and to "demolish" is to "do away 

with" something (Webster's Third New International Dictionary (1986) at 600). All of the work 

being undertaken by Black Diamond was directed at "doing away with" the impoundment. It's 

essential elements - the water reservoir and its dam - were disappearing. They were to be 

replaced with a completely different refuse storage facility. True, the overall purpose of the new 

facility, the storage of refuse, was the same as that of the old facility, but the facility itself was 

different. Moreover, and as is clear from the plan and from the deposition of MSHA' s 

impoundment expert, SheltoJ!, the work not only involved demolition, it involved surface 

construction. 

To argue, as does the Secretary, that the work was "maintenance work" because it 

involved the "alteration" of a single refusal disposal facility from an impoundment to a refuse 

pile, is to argue contrary to the Secretary's own regulations, which distinguish impoundments 

from refuse piles and treat them as totally different facilities(~ 30 C.F.R. §§ 77.214 -77.215-4 

and 30 C.F.R. §§ 77.216- 77.216-5). Moreover, to argue that what constitutes "construction 

work" is governed by the underlying purpose of the thing being built or demolished, is to argue 

something the ffM does not state, and is to take a position that previously has been rejected.4 

Further, .to assert the work was maintenance work is to ignore Judge Gary Melick's reasoning 

that maintenance work involves projects where "the basic structural design [is] not changed" 

(Frank frey, Jr., Inc., 11 FMSHRC at 993). Given the total elimination of the impoundment, it is 

unreasonable to maintain it was only altered and that its basic structural design was unchanged. 

The Secretary is also unreasonable to the extant she argues her position is substantially 

justified because Brian Casto and Adkins were engaged in work that subjected them to hazards 

typical of mining. Virtually any demolition work at a mine can involve the operation of a truck 

and a bulldozer and can subject the contractor's employees to the hazards inherent iri such work. 

Because contractor employees engaging in demolition frequently are subject to the same or 

similar hazards as surface miners, accepting the Secretary's argument would render the exception 

meaningless. 

4

/ Commission Administrative Law Judge George Koutras found that extensive 

demolition, rebuilding, and installation of a new system in a preparation plant was construction 

work not requiring Part 48 training, even though the facility's underlying purpose remained one 

of coal preparation (See Dakco Corporation, 10 FMSHRC 1259, 1289-90 (September 1988)). 

1178 
-

I recognize the Commission's judges should be reluctant to discourage the Secretary from 

advancing novel and credible theories for her authority and that a less than closely scrutinized 

and reasoned EAJA award can hinder the remedial effectiveness of the Act. But I also recognize 

the law requires the Secretary's theory of liability to be such that a reasonable person with 

knowledge of the facts would conclude the Secretary was correct. Given the Secretary's 

statement in the PPM as to what constitutes "construction work," given the type of work the 

Secretary knew was taking place at the impoundment, given the Secretary's regulatory 

distinction between refuse piles and impoundments, given the guidance offered by Dakco 

Corporation and Frank frey, Jr., Inc., and given the early contention by Black Diamond that it 

was exempted from the requirements of the standards by the ffM, I conclude a reasonable 

person would have found the Secretary was both wrong and unreasonable in maintaining that 

Black Diamond was engaged in "maintenance work" rather than "construction wor~" as the 

terms are explained in the PPM. In other words, I conclude the Secretary has failed to 

established that her position was substantially justified. Accordingly, Black Diamond is entitled 

to an EAJA award. 

THE AWARD 

The Act provides that an award of attorney fees not exceed $125 per hour ''unless the 

agency determines by regulation that an increase in the cost of living or a special factor ... 

justifies a higher fee (5 U.S.C. § 504(b)(1)(A); 28 U.S.C. § 2412 (d)(2)(B)). The Commission's 

regUlation states that no award may exceed $75 per hour (29 C.F.R. $ 2704.106((b)).5 Black 

Diamond seeks a fee of$130 per hour (Appl. 5). It argues courts "routinely have made 

retroactive cost of living (COLA) adjustments ... to the maximum attorney fee rate in EAJA 

cases" (IQ.). The Secretary opposes a fee of$130 per hour. She argues the Commission is 

without authority to increase the fee above that allowed by the EAJA (Sec's. Ans. 19, n.lO, ~ 

5 U.S.C. § 504(b)(l)(A)). 

I agree"with the Secretary. The language of the EAJA is clear. It limits an award to a rate 

of$125 per hour ~ess the agency acts by regulation to increase it. I have no authority 

unilaterally to increase the rate. I am aware another Commission judge has found that he does 

have such authority and has applied a COLA multiplier to the statutory rate, but I respectfully 

decline to follow his lead (See Contractor's Sand and Gravel, 18 FMSHRC 1820, I 827-30 

(October 1996) (ALJ Cetti)). 

All of the legal services and expenses for which reimbursement is sought have been 

invoiced by the company's counsel. The services are for time spent by counsel in preparing to 

defend Docket No. WEV A 98-1 and in preparing and arguing the EAJA application. The 

5

1 The regulation tracks the fee limit originally legislated. The Commission has yet 

revise the regulation to raise the fee cap to $125 per hour. 

1179 
expenses ~e foJ photocopying, long distance telephone calls, reporters' fees for depositions, 

facsimile copies, and subpoena service fees.

6 As in the case of the legal services, the expenses 

were incurred by Black Diamond in defending the underlying.civil penalty case and in preparing 

and arguing the EAJA application. 

I have reviewed the invoices and find all of the listed legal services and expenses are 

allowable. I calculate Black Diamond's award for legal services and expenses as follows: 

Total legal services invoiced 

104 hours @ $125 per hour= $13,000 

Total experises invoiced = $ 1.390.25 

Total award = $14,390.25 

ORDER 

The Secretary is ORDERED to pay Black Diamond an award of$14,390.25 within 

30 days of the date of this Decision . 

Distribution: 

.J)W/fr&J~ David Barbour 

Administrative Law Judge 

David J. Hardy, Esq., Julia K. Shreve, Esq., Jackson & Kelly, P. 0. Box 553, Charleston, WV 

25322 (Certifieq Mail) 

Yoora Kim, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, 

Arlingotn, VA 22203 (Certified Mail) 

dcp 

6

/ The invoices are attached to the EAJA application (Appl., Exh. 3) and to a letter dated 

September 23, 1998. The expense listed on Invoice No. 1525 for subpoena service by Charleston 

Investigations, Inc. is explained by the company's counsel in a letter dated September 24, 1998. 

1180 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2·SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CANNELTON INDUSTRIES, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OCT 

CHARLES PA ITERSON, Employed by 

CANNELTON INDUSTRIES, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GEORGE RICHARDSON, Employed by 

CANNELTON INDUSTRIES, INC., 

Respondent 

9 1998 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 94-381 

A.C. No. 46-06051-03689 

Stockton Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 95-100 

A.C. No. 46-06051-03698-A 

Stockton Mine 

· · CIVIL PENALTY PROCEEDING 

Docket No. WEVA 95-101 

A.C. No. 46-06051-03697-A 

Stockton Mine 

FINAL DECISION ON REMAND 

Before: Judge Hodgdon 

On August 27, 1998, I issued a remand decision in these cases finding that the company 

unwarrantably failed to comply with section 75.400 of the regulations, 30 C.F.R. § 75.400, and 

that company foremen Patterson and Richardson knowingly authorized the violation, subjecting 

them to individual liability under section 110(c) of the Act, 30 U.S.C. § 820(c). Cannelton 

1181 
Industries, Inc. ei a/, 20 FMSHRC 880 (August 1998). However, because infonnation 

concerning Patterson's and Richardson's income, family support obligations or ability to pay a 

penalty had not been presented at the hearing, the parties were given an opportunity to present 

such evidence before I issued a final decision. Id at 887. That evidence has now been submitted 

and the parties have had an opportunity to comment on it. 

Motion for Reconsideration and to Reopen the Record 

and Motion to Stay Remand Proceedings 

In addition to submitting financial information, the Respondents have also filed a Motion 

for Reconsideration and to Reopen the Record and Motion to Stay Remand Proceedings. These 

motions are based on two pieces of evidence which were in the possession of Respondent's 

counsel during the hearing, but which he neglected to offer into evidence. Stating that this case 

was counsel's first before the Commission and citing Rule 60(b) Fed. R. Civ. P., the 

Respondents request that I reconsider my decision, reopen the record to take additional evidence 

and stay the remand proceedings to do so. For the reasons set forth below, the motions are 

denied. 

Respondents attempted to have the same evidence considered by the Commission when 

the case was before it on appeal. The reasons offered for seeking such consideration were the 

same ones now presented to me. The Commission denied the request. Cannelton Industries, Inc. 

et al, 18 FMSHRC 1597 (September 1996). Thus, that decision is the law of this case. 

Furthermore, even if the Commission's decision were not binding, I would deny the 

motions. As the Secretary has forcefully demonstrated in her brief opposing the motions, the 

evidence is not admissible. Finally, even if the evidence were admissible, it would not change 

my decision. While it may have some tendency to support the company's case, it falls far short 

of rebutting the Secretary's case. Accordingly, the motions to reconsider, reopen and stay are 

DENIED. 

Civil Penalty Assessments 

Both Patterson and Richardson have submitted their employment and fmancial status in 

the form of affidavits. Patterson states that he is 53 and still employed in the coal mining 

industry, although he believes that he may have to retire because his ''job security is reduced due 

to developments that may lead to mine closure." Affidavit of September 18, 1998. He relates 

that in addition to his wife, he is also providing fmancial assistance to his mother, mother-in-law, 

daughter, son and brother. ld Patterson asserts that his current income, after taxes, is $3,700.00 

per month and that he has monthly expenses of$3,545.00 per month. !d. 

Richardson states that he is 54 and has not "worked in coal mining employment since 

April27, 1994 and cannot return to such employment due to my medical disabilities." Affidavit 

of September 17, 1998. He claims that his only income is $2,943.00 per month from Social 

1182 
Security Disability payments and a Long Term Disability Program and that he has monthly 

expenses of $3,106.09 per month. Jd 

The Secretary states that "MSHA bas no evidence that either of the named individuals bas 

any prior history of knowingly violating the Mine Act or its regulations." Letter of 

September 21 , 1998. The Secretary did not file any comments on the submissions of Patterson 

and Richardson. 

Following the guidance in Sunny Ridge Mining Co., 19 FMSHRC 254, 272 (February 

1997), I find that the gravity of this violation was serious, that the Respondents' negligence was 

very high, that the violation was abated in good faith, that neither Patterson nor Richardson has 

any previous history of 11 0( c) violations and that both were shift foremen. With respect to 

Patterson, I fmd that his income and family support obligations are as set out m his affidavit. 

I have more trouble making a finding concerning Richardson's income and support 

obligations. His affidavit does not state whether or not he is married. Moreover, it contains a 

statement which seriously affects his credibility. He states that he was last employed in mining 

on April27, 1994. However, at the hearing on October 12, 1995, he testified that at that time he 

was employed as an "acting shift foreman" by Cannelton Industries. (Tr. 247.) Consequently, 

the accuracy of his affidavit is questionable and raises the concern of whether his failure to reveal 

his marital status, which could have been an innocent omission, may have been deliberate. 

In this regard, I note that Richardson claims to have two car payments of $385.00 and 

$487.00, respectively. Affidavit of September 17, 1998. If he is not married and he is, in fact, 

spending more each month than he takes in, such expenditures would appear to be an unessential 

extravagance. 

The significance of this omission is that if he is married, I cannot perform the two step 

analysis of his fmancial position required by the Commission in Wayne R. Steen, 20 FMSHRC 

381, 385 (April1998), because I cannot determine either Richardson's household financial 

condition or his share of the household's net worth, income and expenses. Thus, I cannot make 

any fmdings on his "size" or "ability to continue in business." !d. 

The remedy for this circumstance is not to further delay this case by requesting additional 

information, but to find that, by failing to submit accurate information when given the 

opportunity to do so, his "ability to continue in business" will not be affected by the imposition 

of an authorized penalty in this case. The Commission has previously held with respect to 

operators that "[i]n the absence of proof that the imposition of authorized penalties would 

adversely affect [an operator's] ability to continue in business, it is presumed that no such 

adverse [ e ]ffect would occur." Sellersburg Stone Co., 5 FMSHRC 287, 294 (March 1983), aff d. 

736 F.2d 1147 (Th Cir. 1984); accord Broken Hill Mining Co., 19 FMSHRC 673,677 (April 

1997); Spurlock Mining Co., 16 FMSHRC 697, 700 (April 1994). There does not appear to be 

any reason that the same presumption should not also apply to 11 0( c) respondents. 

1183 
Therefore~ I find that, since Richardson has not credibly established his income and 

family support obligations, his ability to pay or the affect a penalty will have on them, he will not 

be adversely affected by the imposition of a penalty. Considering all of the penalty factors, I 

conclude that a civil penalty of$300.00 is appropriate. 

Returning to Patterson, I find that a civil penalty of $300.00 is also appropriate for him .. 

This finding is based on the fact that his affidavit indicates a surplus of$155.00 per month and 

that he attributed expenditures of$100.00 per month to "recreation,'' $166.00 per month as 

"[c]ontribution to saving for yearly vacation to the beach" and $100.00 per month as 

"[c]ontribution to saving for yearly vacation to the lake," which indicate that payment will not 

require him to forego the necessities of living. 

It is apparent that both Respondents are of limited fmancial means. Accordingly, I will 

direct that the penalties be paid in instalments consistent with their individual circumstances. 

ORDER 

Cannelton Industries, Inc. is ORDERED TO PAY a civil penalty of $3,600.00 within 

30 days of the date of this order. Charles Patterson is ORDERED TO PAY a civil penalty of 

$300.00 in six monthly instalments of$50.00 per month, the first payment to be made within 

30 days of the date of this order. George Richardson is ORDERED TO PAY a civil penalty of 

$300.00 in 12 monthly instalments of$25.00 per month, the first payment to be made within 

30 days of the date of this order. With respect to Patterson and Richardson, failure to make any 

payment as scheduled will result in the entire, unpaid balance becoming immediately due and 

payable, together with such court costs as may be incurred by the U.S. Department of Labor in 

collecting such amounts. On receipt of payment by Cannelton and receipt of fmal payment by 

Patterson and Richardson, these cases are DISMISSED. 

Distribution: 

d44~ T. T~dd.-H;;;;~~ 

Administrative Law Judge 

David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower, P.O. Box 553, Charleston, WV 

25322 (Certified Mail) 

RobertS. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Suite 516 Arlington, VA 22203 (Certified Mail) 

/fb 

1184 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ocr 1 4 J998 

GILBERTV. ANKROM, 

Complainant 

DISCRIMINATION PROCEEDING 

v. 

WOLCOITVILLE SAND & GRAVEL 

CORPORATION, 

Respondent 

DECISION 

Docket No. LAKE 98-126-DM 

NCMD 98-01 

Willcottville Sand & Gravel 

Mine ID 33-04399 

Appearances: Robert J. Tscholl, Esq., Canton, Ohio, for Complainant; 

Before: 

John T. Billick, Esq., Patrick H. Lewis, Esq., Belkin, Billick, Harrold & Wiencek, 

Co., L.P .A., Cleveland, Ohio, for Respondent. 

Judge Weisberger 

This case is before me based upon a Complaint filed by Gilbert V. Ankrom alleging that 

he was discriminated against by Wolcottville Sand & Gravel ("WS&G") in violation of 

Section 105(c) of the Federal Mine Safety and Health Act of 1977 ("the Act"). Pursuant to 

notice, the case was scheduled to be heard June 17-18, 1998. Subsequently, the parties each 

obtained counsel. Both counsel requested an adjournment to adequately prepare for the hearing. 

The requests were granted, and the case was rescheduled and heard in Akron, Ohio, on 

July 21-22, 1998. On September 14, 1998, Complainant filed Proposed Findings of Fact and a 

Memorandum. On September 16, 1998, Respondent filed Proposed Findings of Fact. On 

September 23, 1998, Respondent filed a Reply to Complainant's Proposed Findings of Fact. 

Complainant's Reply to Respondent's Proposed Findings of Fact was received on September 28, 

1998. 

1. Summary of the Evidence 

A. Complainant's case 

1. Ankrom's testimony 

On August 12, 1997, Gilbert V. Ankrom was hired by Kevin Schemp to work as a frontend loader operator at WS&G's gravel pit. According to Ankrom, Schemp told him that he 

thought that the job would last about 2 ~ years. Ankrom commenced working on August 18, 

1185 
:. 

1997, operating a front-end loader during the night shift, which in addition to Ankrom, included 

Dan Gay, and David Gay. 

Ankrom stated that from the first day on the job he became aware that the front-end 

loader did not have a seatbelt, and he reported this to his supervisor, a person whom he 

identified as "Mark." Ankrom also alleged making safety complaints to Schemp commencing 

the first or second week after he started to work at WS&G. 

After approximately 3 weeks, Dennis H. Jackson commenced to work as the foreman in 

charge of Ankrom's shift. Ankrom complained to Jackson that the road over which he had to 

drive the front-end loader did not have any berms. According to Ankrom, this condition was not 

corrected until he almost ran off the side of the road. He was not sure if this ~~curred prior to, or 

after September 11, 1997. Ankron encouraged Jackson to contact state and/or federal mine 

inspectors to ensure that the following safety concerns would be rectified: (1) employees were 

making repairs to various belts without adequate safety equipment, (2) berms were required, and 

(3) drag lines were being operated without lights. 

On September 11 , 1997, the subject site was inspected by Ohio State Inspector Fred 

Kidd, who issued correction orders to WS&G. Ankrom did not speak to Kidd about any of his 

safety concerns. 

Ankrom testified that on October 8, 1997, he informed Glenn Freese, the day shift 

foreman that the berms were inadequate, and that the previous day his front-end loader had 

almost rolled over. According to Ankrom, this incident resulted from the action of Dan Gay, the 

hoe operator, who bad narrowed the roadway and removed the berm. According to Ankrom, 

Frees did not respond. Ankrom also related this incident to Jackson, and had a "conversation" 

with him "involving the MSHA inspectors coming to the pit" (Tr. 146). The site was 

subsequently inspected by a state inspector, and Ankrom talked to him regarding the chain of 

command at WS&G, and the lack of a safety belt on a previous inspection of a loader. 

Ankrom continued to make safety complaints to Schemp through the end of October 

1997. On October 31 , WS&G employees were asked to indicate on a form whether they had any 

safety concerns. Ankrom filed out the form and returned it . On the form he stated his 

complaints about the lack of inspections by foremen prior to the start of each shift, and the lack 

of adequate berms. In early November, 1997, during an inspection by Ohio Inspector Kidd, 

Ankrom informed Kidd that there was no berm on the roadway. 

·On Friday, November 7, 1997, Ankrom was told by Schemp that he would be returned to 

the night shift to increase production. 1 According to Ankrom, Schemp also told him that he 

1/ In the middle of October, Ankrom and Jackson had been moved by Schemp to the day 

shift from the night shift. 

1186 
knew who wasJ:~lling the inspectors, although he did not state whom he suspected. On 

November 8, Ankrom called inspector Kidd regarding the lack of berms. On November 9, at 

11 :00 a.m., Schernp called Anrkom at horne, and asked him why he had not shown up for work. · 

Ankrom informed him that it was not yet 6:00p.m., and that he was scheduled for the night shift. 

Ankorm testified that Schemp told him that he was to have reported on Sunday morning, "[a]nd 

then got into a big heated discussion about safety practices at the mine" (Tr. 172). According to 

Ankrom, he complained to Schemp about the lack of berms, and the lack safety harnesses when 

repairs were performed on the belt. Ankrom also told Schenp that since he (Ankrom) was 

qualified as a foreman, he would be willing to help WS&G comply with safety standards, and a 

"veiy heated" discussion ensued regarding the operation of the mine (Tr. 173). 

On November 1 0, 1997, Schemp left a message on Ankrom's telephone answering 

machine that he had decided to no longer rent the moxy trucks that Ankrom hag been driving, 

and to operate only a day shift "until the weather breaks" (Tr. 186). Schemp informed Ankrom 

that he was laid off until further notice, and that he would call him "at the point that there's 

something to do here" (Tr. 186-I 87). 

On November 12 and 14, 1997, Ankorm returned to the site and observed two rnoxy 

trucks in operation. 

On March 12, 1998, Ankrom talked to Schemp at WS&G's office and asked him what 

was going on regarding his job. Accoridng to Ankrom, Schemp said that the job was expected to 

last only another 4 months. Ankrom was never contacted by Schemp regarding a return to work. 

2. Jackson's Testimony 

Dennis H. Jackson became the night shift foreman in November 1997, supervising 

Ankrom, Daniel Gay, and David Gay. Jackson testified that, prior to September 9, 1997, 

Ankrom had complained to hlm about working in the fog without adequate berms, and the lack 

of safety belts in one of the end dumpers. According to Jackson, when he discussed these safety 

concerns with Schemp, the latter changed the subject of the conversation, and did not address 

them. 

According to Jackson, he asked Frees to create a berm, and Frees attempted to, but it was 

still not adequate. 

In order to address his and Ankrom's safety concerns, Jackson contacted Ohio Inspector 

Kidd, and MSHA. Following these contacts, the site was inspected by state and MSHA 

inspectors. According to Jackson, Schemp " .. . conveyed to the rest of the employees that 

MSHA had come and did an on-site inspection, and he was curious as to why" (sic.) (Tr. 61-62). 

On November 10, Jackson was laid offby Schemp who told him that for safety reasons 

he did not want the crew to operate moxy trucks in the mud. Jackson testified that he passed by 

the pit the following day after he was laid off, and observed moxy trucks in operation. He 

indicated that he was never recalled. 

1187 
B. Respondentst Case 

1. Schemp t s Testimony 

Schemp, who has been the superintendent at the site since July 1997, indicated that in the 

middle of October 1997, he moved Jackson and Ankrom to the day shift to operate moxy trucks 

to haul material and remove overburden, but kept David Gay and Dan Gay on the night shift. 

Schemp explained th~t he made this change because the night shift was ineffective, and he 

wanted to experiment to see if the hauling operation could be performed by WS&G employees 

rather than by a contractor. 

Schemp explained that the day after he laid off Ankrom and Jackson, he l~d off Dan Gay 

and David Ga~, the remaining members of the night shift. Schemp indicated that after he laid off 

the night shift, the terms of the rental agreement for the two moxy trucks were amended 

allowing WS&G to use those trucks until the end of the work season, i.e., approximately 

December 10. He started that each truck was used approximately 13 hours subsequent to the 

layoff. 

Schemp indicated that in February 1998, he was "trending" (sic)(Tr. 294) not to recall 

Ankrom if he could fmd a "better qualified, better help" (Tr. 294). When the night shift was 

resumed on March 20, 1998, he recalled Dan Gay and David Gay, hired a laborer, moved a miner 

from the day shift to the night shift, and added a miner to operate a front-end loader similar to the 

one operated by Ankrom. Schemp indicated that he did not recall Ankrom, because the latter 

was unable to keep the floor clean and flat, allowing water to run off. Also, Schemp was 

concerned about the length of time that Ankrom was taking loading his bucket, and Ankrom's 

"willingness to work, his attitude towards work" (Tr. 293). Schemp indicated that Ankrom's 

ability as a front-end loader did not improve with time, and he had to counsel him regarding 

maintaining the floor flat and level, keeping the floor clean around the stock pile, and taking too 

much time filling the bucket. He also counseled him regarding the method of filling the bucket. 

Schemp said that he counseled him weekly which was more frequently than he counseled other 

front-end loaders. He indicated that there was no formal discipline policy at the mine. 

Schemp indicated that he did not recall Jackson because his performance was worse than 

Ankrom's. 

2. Dan Gay's Testimony 

Dan Joseph Gay who also operated a front-end loader along with Ankrom testified that 

the fatter "always" left the pit floor uneven (Tr.322). 

1188 
II. Findings of Fact and Discussion 

A. Applicable Law 

The Commission, in Braithwaite v. Tri-Star Mining, 15 FMSHRC 2460 (December 

1993), reiterated the legal standards to be applied in a case where a miner has alleged that he was 

subject to acts of discriillination. The Commission, Tri Star, at 2463-2464, stated as follows: 

The principles governing analysis of a discrimination case under the Mine 

Act are well settled. A miner establishes a prima facie case of prohibited 

discrimination by proving that he engaged in protected activity and that ~e · 

adverse action complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2797-800 (October 1980), rev'd on other iUQunds, sub nom. Consolidation Coal 

Co., v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette 

v. United Castle Coal Co., 3 FMSHRC 803,817-18 (April1981). The operator 

may rebut the prima facie case by showing either that no protected activity 

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

Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the prima facie case 

in this·manner, it nevertheless may defend affirmatively by proving that it also 

was motivated by the miner's unprotected activity and would have taken the 

adverse action in any event for the unprotected activity alone. Pasula, 2 

FMSHRC at 2800; Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. 

Coal Corporation, v. United Castle Coal Co. , 813 F.2d 639, 642 (4th Cir. 1987). 

B. Ankrom's Prima Facie Case 

1. Protected Activities and Adverse Action 

The parties stipulated that Ankrom engaged in protected actives in voicing safety 

concerns on November 3, 1997, and November 9 , 1997. The testimony of Ankrom and Jackson, 

which was not impeached or contradicted, establishes that additionally Ankrom engaged in 

protected actives by expressing safety concerns to Jackson, Schemp, and Freese, and in 

discussing with Jackson the need to consult with government inspectors and to bring safety 

concerns to their attention. 

The parties further stipulated that WS&G took adverse action against Ankrom when it 

laid ·him off on November 10, ·1997, and failed to recall him in February or March 1998. Hence, 

the pivotal issue for resolution is whether the adverse actions taken by WS&G were motivated in 

any part by Ankrom's protected activities. 

1189 
2. Motivation 

In general, the commission in Hicks v. Cobra Mining, Inc., ~ ru,., 13 FMSHRC 523 

(1991) discussed the principles to be applied in evaluating motivational nexus as follows 

(13 FMSHRC, ~ at 530): 

The Co~ission in previous rulings has acknowledged the difficulty in 

establishing a motivational nexus between protected activity and the adverse 

action that is the subject of the complaint. "Direct evidence of motivation is 

rarely encountered; more typically, the only available evidence is 

indirect ... 'Intent is subjective and in may cases the discrimination can be 

proven only by the use of circumstantial evidence., Secretary o.b.o. Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508,2510 (November 1981), rev'd on other 

grounds sub nom. Donovan v. Phelps Donge Corp., 709 F.2nd 86 (D.C. Cir. 1983 

QUoting NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (81h Cir. 1965). 

In Chacon, the Commission listed some of the more common 

circumstantial indicia of discriminatory intent: (1) knowledge of the protected 

activity; (2) hostility or animus towards the protected activity; (3) coincidence 

in time between the protected activity and the adverse action; and (4) disparate 

treatment of the complainant. 3 FMSHRC 2510. 

Schemp, the only WS&G official who took action adverse to Ankrom, was fully aware of 

the latter's safety complaints, as they were made to him. The record also establishes a 

coincidence in time between Ankrom's last protected activities stipulated to have occurred on 

November 9, 1997, and the adverse action of a layoff which occurred the next day. Also, the 

record supports a fmding of some indicia of animus on Schemp' s part toward complaints of 

safety. According to Ankrom, Schemp told him that he knew who was calling the inspectors, 

and that he intended to downsize the company as he was tired of all inspections that were taking 

place. Although on direct examination Schemp firmly denied having made this statement, his 

denial losses credibly in light of his testimony on cross-examination. He was asked whether he 

had told Kidd that part of the reason for downsizing the second shift "was due to the safety 

complaints" (Tr. 313). He responded that he did not remember, and that his testimony on direct 

denying that statement was not accurate. Also, Schemp did not deny Ankrom's testimony that in 

a telephone call on November 9, when Ankrom brought up the topic of safety concerns, a heated 

discussion ensued. Schemp also did not deny Ankrom's testimony that when he (Ankrom) told 

him_that "a lot of things" (Tr. 173) do not comply with state or federal safety standards, he hung 

up. Further, although the entire night shift inclu<¥og Ankrom was laid off essentially at the same 

time, only the shift members who had made safety complaints, i.e., Jackson and Ankrom, were 

not subsequently recalled. Taking into account all these factors, I find that Ankrom has 

established that the adverse actions taken against him by WS&G were motivated in any part by 

his protected activities. Thus, 1 find that Ankrom has established a prima facie case. 

1190 
C. WS&G's Affirmative Defense 

Schemp testified that he did not terminate Ankrom due to his safety complaints, and did 

not suspect that Ankrom had made safety complaints to MSHA. Since the entire shift was laid 

off, including two members who did not make any safety complaints, I find that the layoff of 

Ankrom would have been taken in any event based on factors not related to the protected 

activities, i.e., economic and weather conditions. Whether such a layoff was based upon sound 

personnel managemen~ policies is not a proper issue for this forum. Also, I find that WS&G has 

established that it would have taken the adverse action of not recalling Ankrom, in any event 

based on his work history. Schemp testified, in essence, that his decision not to recall Ankrom 

was not based upon Ankrom's safety complaints, but was based upon his dissatisfaction with 

Ankrom's failure to maintain the pit floor level and clean, and to fill the bucket in a timely 

fashion. In support of Schemp's allegations, Gay, who worked with Ankrom,.testified that 

Akrom always left the floor uneven. Ankrom did not testify in rebuttal to rebut these charges. · I 

find that the record establishes that Ankrom did not maintain the floor properly, and fill the 

bucket in a timely fashion as expected by Schemp. Also, the lack of siinificant animus toward 

safety complaints is evidenced in Schemp's testimony that one other miner, David Blank had, 

like Ankrom, reduced to writing his safety concerns, but was not laid off, discharged, or 

subjected to any adverse action. Indeed, according to Schemp, Blank was returned to work in the 

1998 season. Since his testimony was not impeached or contradicted, I accept it. Hence, for all 

these reasons, I find that WS&G has established that it would have laid off and not recalled 

Ankrom in any event based on unprotected activities. For all these reasons, I fmd that it has not 

been established by Ankrom that he was discriminated against in violation of section 105(c) of 

the Act. Accordingly, the Complaint is to be dismissed. 

OBDER 

It is QRDERED that the Complaint be DISMISSED, and this case be DISMISSED. 

Distribution: 

A()~ ~Weisberger Administrative Law Judge 

Robert J. Tscholl, Esq., 740 United Bank Building, 220 Market Avenue, South, Canton, OH 

44702 (Certified Mail) 

John T. Billick, Esq., Patrick H. Lewis, Esq., Belkin, Billick, Harrold & Wiencek CO., L.P.A., 

Cominerce Park IV, Suite 450, 23240 Chagrin Boulevard, Cleveland, OH 44122 (Certified Mail) 

dcp 

1191 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEY ARD #280 

' ' DENVER, CO 80204-3582 . 

303-844-3577 fF AX 303-844-5268 

October 21, 1998 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

v. 

Docket No. WEST 98-55-M 

A.C. No. 04-00099-05526 

Lime Mountain 

LIME MOUNTAIN COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Steven R. DeSmith; Esq., Office of the Solicitor, U.S. Department of 

Labor, San Francisco, California, for Petitioner; 

Byron M. Ishkanian, Professional Safety Engineer, Santa Barbara, 

California, for Respondent.· 

Judge Manning 

This case is before me on a petition for assessment of penalty filed by the Secretary of 

Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Lime 

Mountain Company ("Lime Mountain"), pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The petition alleges 

one violation of30 C.P.R.§ 56.15005. The parties presented testimony and exhibits at an 

evidentiary hearing. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Lime Mountain operates a limestone quarry (the "quarry") in San Luis Obispo County, 

California. On October 8, 1997, MSHA Inspector Herbert Bilbrey was at the quarry. As the · 

inspector was leaving, he looked over at the load-out facility and saw a man on top of a · 

pneumatic bulk trailer (the "bulk trailer") holding a compressed air hose. The man was using the 

hose to clean off the top of the trailer. Part of the hose was coiled behind him on the trailer. 

Inspector Bilbrey estimated that the man was about 11 feet above the ground. He was not using a 

safety belt or line and the inspector believed that he was in danger of falling. Inspector Bilbr~y 

• I permitted Mr. Ishkanian, who is not an attorney, to represent Lime Mountain 

Company at the hearing, unde_r the authority of 29 C.F .R. § 2700.3(b )( 4). 

1192 

, . 
·-

ordered the man off the truck and issued a combination section 104(a) citation and 107(a) 

imminent danger order (the "citation") to Lime Mountain. 

Citation No. 4523948 alleges a violation of30 C.F.R.§ 56.15005, as follows: 

A contract truck driver for Royal Trucking was observed on top of 

his pneumatic trailer using a compressed air hose to blow the top 

of his trailer off and [was] not using any fall protection, located at 

the load-out bins. The company did not provide an area to open 

and close lids on top of truck where the contractors could do this 

safely.... The superintendent was not aware of this requirement.. .. . 

Inspector Bilbrey determined that the violation was of a significant and substantial nature 

("S&S") and was the result of the mine operator's moderate negligence. Section 56.15005 

provides that "[s]afety belts and lines shall be worn when persons work where there is a danger 

of falling .... " The citation was tenninated when the "contractor truck driver was removed from 

the truck" and instructions .were given on "the use of the fall protection that was installed" in the 

area. The Secretary filed a petition for assessment of civil penalty for this citation charging Lime 

Mountain with a violation of section 56.1S005 and proposing a penalty of $240. 

A. Fact of Violation 

1. Summary ofthe Testimony 

The basic facts in this case are not in dispute. The load-out facility consists of about four 

storage bins that are supported by a metal structure made of I -beams. Lime from the quarry is 

loaded into the bins. Various trucking companies dispatch trucks with drivers to the quarry to 

load product into the bulk trailers. One tractor generally pulls two bulk trailers. Lime Mountain 

does not own or. operate trucks or trailers used to transport lime to customers. Independent 

trucking companies transport the lime to customers. The bulk trailers have rounded bodies and 

are loaded from the top. At least one hatch is located at the top of each trailer. Upon arrival at 

the quarry, the driver of a rig proceeds to the scale house. At the time the citation was issued, the 

driver pulled up to the load-out facility, climbed up the ladder on the back of each trailer and 

opened the hatches. He then pulled the truck forward under the bins, went up the adjacent stairs, 

and loaded material into the trailers. After he was finished loading, he closed the hatches and 

drove the rig back to the scale ~ouse. 

In this instance, the driver of the rig pulled out of the load-out facility and par~ed his rig 

along the side of this facility where there was a compressed air hose. He used this hose to clean 

dust and dirt off the trailers. He was not directed to do this by Lime Mountain, but it was not an 

unusual activity for a driver to clean off his rig after loading. (Tr. 93). 

The trailers used to transport lime from the quarry are standard trailers used to transport 

bulk material o!l highways. They are loaded from the top through hatches, as described above, 

1193 
and unloaded from the bottom. They have ladders on the back and two handrails along the top 

that are about four inches high. William Wahl, president of Lime Mountain, testified that a little 

over a million and a half tons of material has been shipped out of the quarry since 1984. (Tr. 84). 

He estimates that drivers have opened hatches on top of the trailers in the manner described 

above about 200,000 times since that date and he testified that no driver has fallen from a truck 

or has been injured while opening hatches during that period. ld 

Inspector Bilbrey testified that he issued the citation because there was a danger that the 

driver could fall off the trailer. He was not using a safety line and there were no handrails that 

would·protect him f!om falling. The inspector believed that the presence oflime dust on the top 

of the trailer as well as the compressed air hose made a fall highly likely. He believed that an 

imminent danger was present because the man was using the compressed air hose to clean off the 

top of the trailer and he could have easily slipped or tripped on the hose. The inspector ordered 

the driver off the truck as soon as he could get his attention. 

Inspector Bilbrey also testified that the violation was S&S. He based his S&S 

determination on his belief that a fatal accident was highly likely. He relied, in part, on fatal 

accident reports that he had reviewed involving similar circumstances. The inspector testified 

that a fall of 11 feet onto hard-packed soil can easily be fatal. Inspector Bilbrey determined that 

Lime Mountain's negligence was moderate because the foreman testified that the company had 

safety lines available but that he was not aware that safety lines were required for truck drivers 

when they were on the tops of trailers. 

· Paul Belanger, a supervisory special investigator for MSHA, testified that falls from the 

top of trucks, trailers, and rigs often result in serious or fatal injuries. He cited a nwnber of 

examples in which drivers oftrucks were killed when they fell from the top oftheir rigs. (See for 

example Ex, P-4). 

Lime Mountain does not dispute the basic facts described above. It maintains that MSHA 

should have cited the independent contractor who employed the driver, that the violation was not 

S&S, and that it was not negligent. Mr. Wahl testified that MSHA has inspected the quarry 37 

times since 1984 and never advised him or his employees that safety lines are required when 

truck drivers open hatches on trailers or when they clean the tops of the trailers. He stated that 

the load-out facility is directly visible and any inspector would have been able to see that safety 

lines were not being used. Mr. Wahl also testified that the truck drivers were free to use Lime 

Mountain's safety lines or to bring their O\vn, but that Lime Mountain did not have supervisory 

control over the drivers and it was not responsible for training the drivers on safety matters. He 

stated that Lime Mountain's employees do use safety lines where there is a danger of falling. 

Based on the history at the quarry, Mr. Wahl testified that it was unlikely that the driver 

would have been seriously injured. As stated above, drivers have climbed onto trailers about 

200,000 times at the quarry and there have been no injuries. He believes that the citation should 

have been designated non-S&S and he introduced a citation issued at a different quarry in which 

1194 
·-

a similar violation was designated non-S&S. (Ex. R-3). He contends that MSHA's enforcement 

of this standard is inconsistent. 

2. Discussion and Analysis 

I fmd that the Secretary established a violation of section 56.15005. The driver of the rig 

was on top of the trailer holding a compressed air hose. There was a danger of falling off the 

trailer. The driver was· not using a safety line and suitable handrails were not present. Although 

Lime Mountain had not been given specific notice that the safety standard applied to bulk 

trailers, I find that MSHA has consistently enforced the standard to require fall protection in this 

and in other similar situations. MSHA issues citations under this standard when it becomes 

aware that truck drivers are standing on the tops of bulk trailers without adequate fall protection. 

The Mine Act imposes strict liability on a mine operator. See, e.g. Asarco v. FMSHRC, 

868 F .2d 1195 (1Oth Cir. 1989). "[W]hen a violation of a mandatory safety standard occurs in a 

mine, the operator is automatically assessed a civil penalty." /d. at 1197. The negligence of the 

operator and the degree of the hazard created by the violation are taken into consideration in 

assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i). In this case, the driver was in 

danger of falling and he was not using a safety belt and line. 

B. Significant and Substantial Nature of the Violation 

I also find that the Secretary established that the violation was S&S. An S&S violation is 

described in section 1 04( d)( 1) of the Mine Act as a violation "of such nature as could 

significantly and substantially contribute to the cause and effect of a ... mine safety or health 

hazard." A violation is properly designated S&S "if based upon the particular facts surrounding 

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

injury or illness of a reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 

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

four-part test for analyzing S&S issues. Evaluation of the criteria is made assuming "continued 

normal mining operations." US. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The 

question of whether a particular violation is S&S must be based on the particular facts 

surrounding the violation. Texasgulf, Inc., I 0 FMSHRC 498 (April 1988). 

The Secretary must establish: (1) the underlying violation of the safety standard; (2) a 

discrete safety hazard, a measure of danger to safety, contributed to by the violation; (3) a 

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

likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not 

required to show that it is more probable than not that an injury will result from the violation. 

U.S Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). 

There was a violation of the standard and a measure of danger to safety contributed to by 

the violation. The issue is whether there was a reasonable likelihood that the hazard contributed 

1195 
to by the violatio.n will result in an injury. I find that the Secretary established that an injury was 

reasonably likely in this instance and that such an injury would be of a reasonably seriouS nature. 

The driver was on top of a metal surface 11 feet above the ground that was covered with 

lime dust in at least some areas. He was holding a compressed air hose and the hose was coiled 

behind him. I find that it was reasonably likely that he would fall. The dust created a slipping 

hazard and the hose presented a tripping hazard. In .one of the examples submitted by the 

Secretary, a truck driver was blown off a trailer by a gust of wind as he was closing a hatch. (Tr. 

58; Ex. P-8). Thus, a driver can fall in the absence of dust or an air hose. The fact that no truck 

driver has been injured at the quarry while on top of a trailer does not mean that an injury would 

never occur if this practice continued at the quarry. I credit the testimony of the Secretary's 

witnesses that if a driver fell from a trailer, the injury would likely be very serious or fatal. The 

fact that a different inspector determined that a similar violation at another mine should be 

designated as non-S&S is not controlling. There may have been mitigating circumstances in that 

case that led the inspector to determine that an injury was not reasonably likely. ·(Tr. 61-62). 

I also find that the presence of the driver on top of the trailer in this instance created an 

imminent danger because this condition "could reasonably be expected to cause death or serious 

physical harm" before the condition could be abated. (30 U.S.C. § 8020); Blue Bayou Sand and 

Gravel, Inc., 18 FMSHRC 853, 858 (June 1996)). This condition had a reasonable potential to 

cause death or serious injury within a short period qftime. Utah Power & Light Co., 13 

FMSHRC 1617, 1622 (October 1991). 

C. Other Issues 

·Lime Mountain contends that it should not be held responsible for this violation because 

the independent contractor, Royal Trucking, employed the driver and was responsible for his 

unsafe actions. Inspector Bilbrey testified that he cited Lime Mountain rather than the 

independent contractor because Lime Mountain did not provide a place for a driver to tie off 

when using the co01pressed air hose. He stated that if there had been a place to attach a lanyard 

at the compressed air hose, he would have cited Royal Trucking instead of or in addition to Lime 

Mountain. (Tr. 32). In this case he only cited Lime Mountain because there was no place for the 

driver to attach a safety line if he wanted to tie off. 

The Commission and courts have held that under the Mine Act's strict liability 

provisions, a mine operator, although faultless itself, may be held liable for the acts of its 

independent contractors. (Extra Energy, Inc .. 20 FMSHRC I. 5 (January 1998)(citations 

omitted); Cyprus Indus. Minerals Co. v. FMSHRC, 664 F.2d 1116. 1119 (91

h Cir. 1981 )). The 

Secretary has wide enforcement discretion and may proceed against a mine operator, independent 

contractor. or both. The Commission has determined that a mine operator seeking to establish an 

abuse of that discretion .. bears the heavy burden of establishing that there is no evidence to 

support the Secretary's decision or that the decision is based on an improper understanding of the 

law." (Extra EnerKJI, 20 FMSHRC at 5). 

1196 
-In this.Ca.se I find that the evidence supports the Secretary's decision to cite Lime 

Mountain. While the Secretary may have had the authority to cite the independent contractor as 

well, its decision not to do so has no bearing on my findings fu this case. The inspector stated 

that he cited Lime Mountain because it did not provide a place for drivers to attach a safety line 

at the compressed air hose. The citation was abated when Lime Mountain attached two bars to 

the structure supporting the storage bins. One of these bars is adjacent to the air hose. Safety 

lines can now be attached to this bar aJl(i. dti.vers ~an use the compressed air hose without a 

danger of falling. They can also·ilse tbe'bars to attach a safety line when they open and close the 

hatches on the top of the trailers . . I hold that the Secretary did not abuse her discretion when it 

cited Lime Mountain for this violation. 

Lime Mountain also contends that its negligence was low in this case. I agree. The 

Secretary is under no legal obligation to provide each mine operator with notice of the 

requirements of all of her safety standards. Nevertheless, I credit the testimony of Mr. Wahl that 

the quarry has been inspected 37 times and that it has never been cited for violations of this 

standard with respect to trucks at the load-out facility. The load-out facility is centrally located at 

the quarry and the fall protection issue should have been obvious to MSHA inspectors. In 

addition, I credit the testimony of Mr. Wahl that Lime Mountain's employees use safety lines 

where there is a danger of falling in or around the bins at the load-out facility. Finally, Lime 

Mountain has less control over the actions of drivers employed by independent contractors that it 

has over its own employees. Lime Mountain did not direct or supervise this truck driver's 

activities at the load-out facility. Accordingly, I find that Lime Mountain's negligence was low. 

Mr. Wahl testified that he stresses safety at Lime Mountain and that he would never do 

anything to put his employees in jeopardy. (Tr. 88-90). I credit his testimony in this regard. It 

must be stated, however, that quarry operators who operate in a safe manner are issued citations 

by MSHA from time to time. The fact that Lime Mountain was issued the subject citation does 

not mean that it does not emphasize safety. The citation simply indicates that the conditions 

described in. this citation presented a safety hazard to truck drivers. 

II. APPROPRIATE CIVIL PENALTY 

Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. The parties stipulated to many of the criteria. I find that six citations 

were issued at the quarry in the. 24 months preceding October 8, 1997. The quarry worked about 

15,880 man-hours per year at that time. The violation was rapidly abated. The penalty assessed 

in this decision will not have an adverse effect on Lime Mountain's ability to contint1~ in 

business. The violation was S&S and it created a serious safety hazard. Lime Mountain's 

negligence was low. I find that a penalty of $150 is appropriate for this violation. 

1197 
·-

III. ORDER 

Accordingly, Citation No. 4523948 is AFFIRMED and Lime Mountain Company is 

ORDERED TO PAY the Secretary of Labor the sum of $150.00 within 40 days of the date of 

this decision. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Steven R. DeSmith, Esq., Office ofthe Solicitor, U.S. Department of Labor, 71 Stevenson St., 

Suite 1110, San Francisco, CA 94105-2999 (Certified Mail) 

Mr. Byron M. Ishkanian, 1480 San Leandro Park Road, Santa Barbara, CA 93108 (Certified 

Mail) 

Mr. William Wahl, Lime Mountain Company, P.O. Box 1797, Paso Robles, CA 93447 (Certified 

Mail) 

RWM 

1198 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

·- OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PRICE CONSTRUCTION, INC., 

Respondent 

OCT 2 3 1998. 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 98-86-M 

A.C. No. 41-03817-05506 

Mine: Pinto Valle No. 1 

DECISION 

Appearances: Madeleine T. Le, Esq., Office ofthe Solicitor, U. S. Department of Labor, 

Dallas, Texas, for the Secretary; 

Bob Price, Prose, President, Price Construction, Inc., Big Spring, Texas, 

for the Respondent. 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor ("the Secretary") seeking the imposition of civil penalties against Price 

Construction, Inc. ("Price") for allegedly violating various mandatory safety standards set forth 

in Title 30 of the Code of Federal Regulations. Pursuant to notice, the case has heard in Zapata, 

Texas, on September 9, 1998.

1 

I. Citation No. 4446968 and Order No. 4446969 

A. The In~ector 's Testimony 

On August 26, 1997, MSHA Inspector Laman Jay Lankford inspected Price's Pinto Valle 

No. 1 Mine. He described the terrain at the mine as generally flat, but indicated that dump trucks 

have to travel up an elevated roadway to go to the hopper to dump their load. 

1/ Subsequent to the hearing, the Parties filed memorandwns pertaining to the scope of 

30 C.F.R. § 56.14131 (a) at issue in Citation No. 4446968 and Order No. 4446969. 

1199 
l:ankfor~ testified that at approximately 10:30 a.m., he stopped one of the two bobtail 

dump trucks operating in the area, and asked the driver to open the door. Lankford stated that he 

observed that the driver was not wearing a seatbelt; that it was·lying on the floor under the seat. 

Approximately 5 minutes later, Lankford stopped the other truck and observed an unbuckled 

seatbelt on the floor beside the seat and slightly to the rear. Lankford issued a Citation under 

section 1 04( d)(l) of the Federal Mine Safety and Health Act of 1977 ("the Act"), and an Order 

under section 1 04( d)( 1) of the Act each alJeging a violation of 30 C.F .R. § 56.14131 (a) which 

provides as follows: "[s]eatbelts shall be provided and worn in haulage trucks." According to 

Lankford, he terminate<;~ the Citation and Order that he issued by requiring the seatbelts to be put 

on. 

According to Lankford, the MSHA database indicates th~t the number one cause of 

fatalities involving accidents of haul dump trucks is the nonuse of seatbelts. He opined that there 

was a reasonable likelihood that an injury would have resulted as a consequence of the seatbelt 

not being worn. Lankford explained that this conclusion was based upon the MSHA database, as 

well as the fact that the cited trucks have to back up to the hopper on a ramp elevated about 

12 feet above the "lay of the land"(Tr.62). According to Lankford, if there would be "a 

mechanical failure, those trucks have been known to tip over, ai)d there has been fatalitiesresulting" (sic) (Tr. 30). 

Lankford indicated that when he asked the drivers in English why they were not wearing 

a belt, they shrugged. He also indicated that at a close-out conference the foreman, Jose 

Marcello Quiroz, who accompanied him in his inspection, did not indicate that there was any 

company policy to educate employees to wear a seatbelt. Lankford stated that after he cited the 

second truck, he asked Quiroz what was going on and why the operators were not wearing 

seatbelts. According to Lankford,. Quiroz said that they had been told to, but he did not mention 

the existence of any disciplinary procedures, spot checks, or safety meetings. In the 2 year 

period ending August 29, 1997, Price was cited, at the subject mine, on two previous occasions 

for not having complied with the mandatory standards requiring the wearing of seat belts on 

mobile equipment which does not include haul trucks. Price was also cited on two occasions for 

not having complied with the regulation at issue, section 56.1413l(a), ~.which requires the 

wearing of seat belts in haulage trucks. 

B. Discussion 

1. Citation No. 4446968 

When Lankford observed the first truck cited, the door was open, and the operator, Rene 

Valadez, was not wearing a seat belt. Valadez testified, in essence, that until the truck was 

stopped by the inspector, he had been wearing his seatbelt. However, when the inspector 

motioned to him to stop the truck, he took his seatbelt off, and opened the door, intending to exit 

the truck. I observed his testimony, and found him to be~ credible witness in this regard. 

1200 
Section 56.14131 (a), supra, provides that seatbelt shall be·worn "in haulage trucks" 

(Emphasis added). When Valadez was observed and cited by 1:-ankford, he had removed his belt 

as part of the continuing action of opening the door, and exiting from the truck. As such, when 

observed by Lankford, he can no longer be considered to have been "in" the truck. Hence, the 

seatbelt requirement set forth in section 56.1413l(a) supra, does not apply. 

I observed Valadez' demeanor, and found his testimony credible that, prior to the time he 

had taken off the seat belt in order exit the truck, he had been wearing it. The record is devoid of 

any evidence, direct or otherwise, that Valadez had not been wearing his seatbelt when he was in 

the truck prior to having removed it in order to exit the truck. Lankford did not observe him or 

the interior of the truck at any time prior to the time the door was opened. I thus find that it has 

not been established that Valadez was not wearing the seatbelt while he was "in" the truck. Thus 

it has not been established that Price violated section 56.14131 (a),~· Accordingly, Citation 

No. 4446968 shall be dismissed. 

2. Order No. 4446969 

a. Violation of section 56.14131(a). supra 

Jesus Lopez, the driver of the second truck Lankford cited, testified that when Jte was 

stopped by Lankford and he opened the door of the haul truck, he had the seatbelt on, and that he 

also had been wearing it while he was driving. I totally disc~edit his testimony that he was 

wearing his seat belt when he stopped the vehicle and opened the door, as it was contradicted by 

the testimony of Lankford and Quiroz, Prices' foreman. They both testified that when the door 

on Lopez' truck was opened, the latter did not have his seatbelt on, and it was hanging down. I 

observed the demeanor of Lankford and Quiroz, and found their testimony credible on this point. 

I thus find that Lopez was not wearing his seatbelt when the door was opened. 

According to Lopez, it is the policy of Price for haul truck drivers to wear their seatbelts, 

and that he had been so instructed when he was hired and at other subsequent times. He also 

testified that he always wears his seatbelt, and that he wore it on August 26, while operating the 

haul truck before it was stopped by Lankford. Inasmuch as I have found Lopez' testimony not . 

credible that he was wearing his seatbelt when the door was opened, I fmd the balance of his 

testimony that he had been wearing his seatbelt when the vehicle was in operation not to be 

worthy ofbelief, based upon the.principle offalsus in uno. falsus in omnibus. Moreover, since I 

have found that Lopez was not wearing a seatbelt when observed by Lankford and Quiroz after 

the vehicle was stopped, it may reasonably be referred that he had not been wearing the seatbelt 

prior to that time when he was operating the vehicle, especially in light of the absence of any 

credible evidence to the contrary. I thus find for all these reasons that it has established that 

Price did violate section 56.1413l(a) ~.as alleged. 

1201 
b, . Significant and Substantial 

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

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

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

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

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

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

3 FMSHRC 825 (April 1981). 

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

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

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

significant and substantial under National Gypsum the Secretary of Labor must 

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

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

violation; (3) a reasonable likelihood that the hazard contributed to will result in 

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

· reasonably serious nature. 

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

Commission stated further as follows: 

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

"requires that the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an injury." U.S. Steel 

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

accordance with the language of section 1 04( d)( 1 ), it is the contribution of a 

violation to the cause and effect of a hazard that must be significant and 

substantial. U. S. Steel Minina Company. Inc., 6 FMSHRC 1866, 1868 (August 

1984); U.S. Steel Minina Company. Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

According to Lankford, his conclusion that the violation was significant and substantial 

was based upon his opinion that an injury was reasonably likely to have occurred, as not wearing 

a seatbelt is the leading cause of fatalities in accidents involving haul trucks. He also noted that 

the trucks at issue are required to drive up a ramp 12 feet above the rest of the area, and dump 

their load into a hopper. He indicated that a fatality could have resulted if, at that point, a 

"mechanical failure" would have occurred. However, there is no evidence in the record as to the 

presence of any condition that would have made it likely for any mechanical failure to have 

occurred. In the absence of such evidence it can not be concluded that there was any likelihood 

that an injury producing event would have been reasonably likely to have occurred. I thus fmd 

that it has not been established that the violation was significant and substantial. 

1202 
c. Unwarrantable Failure 

In the 2 )'ear period preceding the violation at issue, Price was cited at the subject site for 

seatbelt violations on four vehicles. However, according to the uncontradicted testimony of 

Quiroz, employees are instructed to wear their seatbelts, and are provided with such information 

in writing when they start to work. He further testified that he instructs employees weekly to 

wear their seat belts, and checks at least once a day when employees get off their trucks to see if 

they are wearing seat belts. Quiroz indicated that if he observes an employee not wearing a 

seatbelt, "I chew them out" (Tr. 1 08). He also indicated that he had told Lopez that he could be 

fired for not wearing a seat belt. None of this testimony has been impeached or contradicted. I 

thus accept it. Within this framework, I find that it has not been established that the violation 

was as a result of Price's aggravated conduct. As such I can not find that the violation was as the 

result of Price's unwarrantable failure. (c.f., Emery Mining Corp., 9 FMSHRC 1997 (1987)). 

d. Penalty 

Although Price has a training program policy regarding the use seatbelts, the history of 

violations indicate that it did receive four citations for seatbelt violations within 2 years prior the 

issuance of the Order at issue. I thus find that Price was negligent to a moderate degree. Also, 

should an accident have occurred and the vehicle overturned, a driver not wearing a seatbelt 

could have been fatally injured. I thus conclude th~ the violation was of a moderately high level 

of gravity. Taking into account the remaining factors set forth in section llO(i) of the Act, as 

stipulated to by the parties, I find that a penalty of$500.00 is appropriate for this violation. 

11. Citation Nos. 4446966. 4446967.4449671. 4446972. 4446973. 4446974. 4446975. and 

4446976. 

At the hearing, the Secretary made a motion to approve a settlement agreement regarding 

the above referenced citations. It is proposed to reduce the total penalties sought from $765 to 

$671. I have considered the representations of the Secretary as set forth at the hearing as well as 

the documentation in the file, and I find that the proposed settlement is appropriate under the Act, 

and I approve it. · 

ORDER 

It is ORDERED that Within 30 days of this Decision, Respondent pay a total civil 

penalty of$1,171 for the violation found herein. It is further ORDERED that Citation 

No.4446968 be dismissed, and Order No. 4446969 be amended to a section 104(a) citation that is 

not significant and substantial. 

~~ Avram Weisberger 

Administrative Law Judge 

1203 
Distribution: 

Made)eine T. Le, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin 

Street, Suite 501, DalJas, TX 75202 (Certified MaiJ) 

Bob Price, President, Price Construction, Inc., P.O. Box 1231, Big Spring, TX 79721 (Certified 

MaiJ) 

dcp 

1204 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

·- OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, SUITE 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 2i041 

OCT 2 3 1998' 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GUNTHER-NASH MINING 

CONSTRUCTION COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ALBERT R. GONZ, 

Employed By GUNTHER-NASH 

MINING CONSTRUCTION COMPANY 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 98-28 

A.C. No. 11-00877-03503 B08 

Wabash Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 98-42 

A.C. No. 11-00877-03504 A B08 

Wabash Mine 

DECISION 

Appearances: Christine M. Kassak, Esq., Office of the Solicitor, U.S. Department of Labor, 

Chicago, lllinois for the Petitioner; 

Before: 

William H. Howe, Esq., Howe, Anderson & Steyer, P:C., Washington, D.C. 

for Gunther-Nash Mining Construction Company and Albert R. Gonz. 

Judge Melick 

These consolidated civil penalty proceedings are before me pursuant to sections 1 OS( d) 

and 110(c) of the Federal Mine Safety and Health Act 1977,30 U.S.C. § 801 et seq., the "Act," 

charging Gunther-Nash Mining Construction Company (Gunther-Nash) and Albert R. Gonz, as 

an agent of Gunther-Nash, with violations of the mandatory standard at 30 C.F.R. § 77.1908(o). 

The general issue before me is whether there was a violation of the cited standard, and, if so, 

1205 
whether that violation was "significant and substantial", whether the violation was caused by the 

"unwarrantable failure" of Gunther-Nash and whether the violation was a "knowing" violation 

committed by Albert Gonz, as an agent of a corporate mine operator within the meaning of 

section 11 0( c) of the Act. If the violation is found to have been committed and if that violation is 

found to have been knowingly committed by Albert Gonz as an agent of a corporate operator, 

then appropriate civil penalties must also be assessed utilizing the relevant criteria under II O(i) 

of the Act. 

The citation at ~ar. No. 4263749, issued pursuant to section 104(d)(I) of the Act alleges a 

"significant and substantial" violation of the standard 30 C.F.R. § 77.1908(o) and charges as 

follows: 1 

During the shaft sinking of the No.5 airshaft of the Wabash Mine; two 

miners were working over the shaft installing a platform. Only one of the miners 

(victim) was wearing a safety belt, but it was not properly attached. Other 

acceptable means were not provided to prevent persons from falling down the 

shaft when work was being performed over the shaft. Upon exiting this platform, 

one miner fell over the shaft. Upon exiting this platform, one miner fell 

approximately 140 feet down the shaft, resulting in fatal injuries. 

As amended at continued hearings, the Secretary is now alleging that two persons were in 

violation of the standard by not wearing properly attached safety belts while working over the 

shaft. Although not identified in the citation by name they are presumably James Hom and the 

deceased, Kelly Mcintosh (Secretary's Br. p.26). The cited standard provides that "[p]roperly 

attached safety belts shall be worn by all persons required to work in or over any shaft where 

there is a drop of 1 0 or more feet, unless other acceptable means are provided to prevent such 

persons from falling into the shaft." 

1

Section 104(d)(l) provides as follows: 

If, upon any inspection of a coal or other mine, an authorized representative of the 

Secretary fmds that there has been a violation of any mandatory health or safety standard, 

and if he also fmds that, while the conditions created by such violation do not cause 

imminent danger, such violation is of such nature as could significant and substantially 

contribute to the cause and effect of a coal or other mine safety or health hazard, and if 

he fmds such viola!ion to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall include such fmding in 

any citation given to the operator under this Act. If, during the same inspection or any 

subsequent inspection of such mine within 90 days after the issuance of such citation, an 

authorized representative of the Secretary fmds another violation of any mandatory 

health or safety standard and fmds such violation to be also caused by an unwarrantable 

failure of such operator to so comply, he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected by such violation, except those persons 

referred to in subsection (c) to be withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the Secretary determines that such 

violation has been abated. 

1206 
It is undisputed that Kelly Mcintosh, a supervisory employee (walking boss) for GuntherNash, was present over the No. 5 airshaft at the Wabash Mine late in the evening of May 17, 

1996, without tying-off or attaching his safety belt. Around 11:45 p.m. he fell through an 

opening in a platfonn over the shaft approximately 150 feet into the shaft causing his death. 

Mcintosh was not scheduled to work until later, on the 12:00 midnight shift, but had arrived 

early that evening. At the time of the accident, the No. 5 airshaft had an opening approximately 

18 feet in diameter. Outside the opening there was an additional 3 'l'2 foot-wide concrete windsweep onto which a rectangular pattern of steel beams was being bolted into place. Portions of 

the shaft opening were covered by doors and a steel deck. Openings nevertheless still remained 

over the shaft and through which the victim fell. (See Government Exhibit No. 1 ). Aside from 

the use of properly attached safety belts and a fence around the perimeter, there was no other 

means to prevent persons from falling into the shaft. 

Respondents first maintain that there was no violation of the cited standard as to the 

deceased, Mr. Mcintosh, because the Secretary failed to prove that at the time he fell he had been 

"required to work" over the shaft within the meaning of the standard. The Secretary does not 

argue, and cites no evidence, that Mcintosh was indeed "required to work" over the shaft at the 

time he fell to his death. The evidence clearly shows that he was then voluntarily assisting other 

workers before the commencement of his shift. She has therefore failed to establish an essential 

element for a violation of the cited standard as to the deceased. Accordingly the charges in 

amended Citation No. 4263749 concerning Kelly Mcintosh must be vacated as to both GuntherNash and Albert Gonz. The evidence that Mcintosh had been working over the shaft without a 

properly attached safety belt in the presence of, and with the knowledge of, superintendent Albert 

Gonz, nevertheless may be considered in detennining negligence, "unwarrantable failure" and 

whether Gonz committed a "knowing" violation under Section 11 0( c) of the Act. 

Whether there was a violation of the cited standard with respect to James Hom requires 

further examination of the evidence. Monty Wilson was, at the time of the alleged violation, a 

miner/driller for Gunther-Nash, and a union safety committeeman. At the time of the accident 

Wilson was working on one of the steel beams over the shaft. He was tightening "red head" 

bolts which were being used to tie the beam onto the concrete wind sweep. Respondent Gonz 

and "Smiley" (James Horn) were working on the opposite side of the shaft. Wilson had tied-off 

onto a fence post. According to Wilson, Gonz was then placing the doors over the open shaft 

and neither Gonz nor Horn were wearing safety belts. According to Wilson, they very seldom 

wore their safety belts. On cross-examination Wilson acknowledged that Gonz was working on 

the doors or drilling on the beams at the edge of the wind sweep outside the fence but that the 

fence had been taken down where he and Gonz were working. Significantly, Wilson recalled 

that on a prior occasion Gonz had taunted him by asking Wilson if he was "scared" because be 

was about to put on his safety belt. According to Wilson, Gonz never wore a safety belt himSelf 

while working over the shaft. 

Gonz, as superintendent, was Horn and Mcintosh's supervisor. According to Gonz, 

Mcintosh was indeed worl<.ing over the subject shaft and was not tied off. Gonz usually met with 

1207 
. 

Mcintosh, who- was one of his "walking bosses", before the start of each shift to review work 

plans. Gonz testified that when he observed Mcintosh working over the shaft without being tied 

off he told him to meet at his office. Gonz claims that he thought that would take care of the 

problem. Gonz also testified that he assumed Hom had been tied off while working over the 

collar doors that night. According to Gonz, ·Hom had been standing next to him a few minutes 

earlier and was then wearing a safety belt. He denies having seen or having any knowledge of 

any of the workers (except Mcintosh) not tied off that day. In particular he maintains that he did 

not know that Hom was not tied off until ~at was disclosed at a subsequent hearing. 

Victor Wunderlich was employed by Gunther-Nash as a "cherry-picker" and hydraulic 

crane operator. He was working as crane operator and hoist man on May 17, 1996, the date of 

the accident. He recalled that on a prior occasion, on May 15 or May 16, Gonz' crew members 

were not tied off while removing the shaft coping. He also recalled an incident about four days 

before this accident in which the entire crew was working inside the fence without safety belts. 

Wunderlich told Gonz at the dinner break about the crew not wearing their safety belts. After the 

dinner break the crew was wearing their belts. 

Dale Laur was a miner/driller for Gunther-Nash at the time of the accident. Kelly 

Mcintosh was his "walking boss". On the night of the accident, May 17, 1996, he was working 

the midnight shift. Before the shift started he saw Mcintosh walk onto the steel beams over the 

shaft without a belt. 

James Hom worked as a "top man" for Gunther-Nash. Gonz was his supervisor on the 

4:00p.m. to 12:00 midnight shift. On May 17, 1996, they were preparing to place the collar on 

the shaft, mount doors over it and close it off. He was inserting the "red head" bolts into the 

concrete. He admitted that he was over the shaft himself at least once without his safety belt 

being tied off. He recalled seeing Gonz inside the fence with his safety belt on. Gonz was some 

30 to 40 feet away when he took his belt off, but moved to within 10 or 15 feet of him. 

According to Hom, Mcintosh, always wore a safety belt, but he was not sure whether he was tied 

off that night. Hom admitted that he was over the doors without a safety belt for five or six 

minutes. He knew he should not have been without his belt because Gonz and Wunderlich had 

been "onto us all week about not wearing safety belts." He recalls that Gonz told him "ten times" 

that week to get his safety belt on. He recalled being warned several times on other jobs but he 

was never issued sanctions such as written warnings for failing to wear a safety belt on other 

jobs. Hom continues to work. for Gunther-Nash. 

Stephen James Heath was a miner/driller for Gunther-Nash at the time of the accident. 

He too continues to be employed by Gunther-Nash. He was working over the shaft at the time of 

the accident. Beams were in place and he was drilling holes into the concrete to secure the 

beams. He was not tied off with his safety belt while he was bolting over the shaft although he 

knew he was supposed to be. He maintains that Gonz was not present at this time. He noted that 

if "they" see you not tied off within the fenced area "as a rule" you will be told to get tied off. 

1208 
Samuel Parkhill was working under Gonz at the time of the accident. He continues to 

work for Gunther-Nash as a "boss". According to Parkhill there were occasions while he was 

drilling or bolting over the shaft during which was not tied-off with his safety belt. Sometimes 

the lanyard was not long enough to tie-off. He was not aware that longer belts or ropes were 

available at the mine site. Parkhill also admitted that there were times when he was not tied off 

while he was within the fenced area. He testified however that he was tied off when Gonz was 

present at the time of the accident. 

Based on the unchallenged testimony of James Hom alone, it is clear that there was a 

violation of the cited standard. The violation was also clearly "significant and substantial". A 

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

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

or other mine safety or health hazard." A violation is properly designated "significant and 

substantial", if, based upon the particular facts surrounding the violation there exists a reasonable 

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

nature. Cement Division. National Gypsum Co., 3 FMSHRC 822, 825 (April1981). 

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

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

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

significant and.substantial under National Gypsum the Secretary of Labor must 

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

safety hazard--that is, a measure of danger to safety-contributed to be the violation, (3) a 

reasonable likelihood that the hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. 

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

Commission stated further as follows: 

We have explained further that the third element of the Mathies 

formula 'requires that the Secretary establish likelihood that the 

hazard contributed to will result in an event in which there is an 

injury.' U.S. Steel Minim~ Co., 6 FMSHRC 1834, 1836 (August 

1984). We have emphasized that, in accordance with the language 

of section 1 04( d)(l ), it is the contribution of a violation to the 

cause and effect of a hazard that m~st be significant and 

substantial. U.S. Steel Mining Company. Inc., 6 FMSHRC 1866, 

1868 (August 1984); U.S. Steel Minim~ Co .. Inc., 6 FMSHRC 

1573, 1574-75 (July 1984). 

1209 
The question of whether any particular violation is significant and substantial must be 

based on the particular facts surrounding the violation, Secretary of Labor v. Texas~ulf. Inc., 

10 FMSHRC 498 (April 1988); Y ou2hiogheny & Ohio Coal Company, 9 FMSHRC 2007 

(December 1987). Further, any determination of the significant nature of a violation must be 

made in the context of continued normal mining operations. National Gypsum, 3 FMSHRC 327, 

329. Halfway. Incomorated, 8 FMSHRC 8 (January 1986). Clearly, after Kelly Mcintosh died 

under circumstances similar to those under which James Hom was working, there can be no 

question but that this violation was "significant and substantial". 

The violation is also alleged to have been the result of"unwarrantable failure": 

"Unwarrantable failure" is defined as aggravated conduct constituting more than ordinary 

negligence. Emery Mining Corporation, 9 FMSHRC 1997 (December 1987). It is characterized 

by such conduct as "reckless disregard," "intentional misconduct," "indifference" or a "lack of 

reasonable care." ld. at 2003-04; Rochester and Pittsburgh Coal Company, 13 FMSHRC 189, 

193-194 (February 1991 ). Relevant issues therefore, include such factors as the extent of a 

violative condition, the length of time that it existed, whether an operator has been placed on 

notice that greater efforts are necessary for compliance, and the operator's efforts in abating the 

violative condition. Mullins and Sons Coal Company, 16 FMSHRC 192, 195 (February 1994). 

Repeated similar violations and also be relevant to this inquiry because they indicate an operator 

has notice that greater efforts are necessary for compliance with the standard. Peabody Coal Co., 

14 FMSHRC 1258 (August 1992). 

In addition, the violation is also aJleged to have been a "knowing" violation by Albert R. 

Gonz as an agent of corporate operator Gunther-Nash. It is undisputed that Gonz was, at the time 

of the violation, employed by Gunther-Nash as a superintendent. It has been stipulated that 

Gunther-Nash was a corporation. He was accordingly an agent of a corporate operator within the 

meaning of section 110(c) of the Act. 

Section ·110(c) provides that, whenever a corporate operator violates a mandatory health 

or safety standard, an agent of the corporate operator who knowingly authorized, ordered, or 

carried out such violation shall be subject to an individual civil penalty. The proper legal inquiry 

for determining liability under section 11 0( c) is whether the corporate agent knew or had reason 

to know of a violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (January 1982), a.ff' don 

other grounds, 689 F.2d 632 ({)'h Cir. 1982), cert. denied, 461 U.S. 928 (1983). Accord, Freeman 

United Coal Mining Co. v. FMSHRC, 108 F.3d 358,362-64 (D.C. Cir. 1997). To establish 

section 11 0( c) liability, the Secretary must prove only that an individual knowingly acted, not 

that the individual knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 

1131 (July 1992) (citing United States v. International Minerals & Chem. Corp., 402 U.S. 558, 

563 (1971 )). An individual acts knowingly where he is "in a position to protect employee safety 

and health [and] fails to act on the basis of information that gives him knowledge or reason to 

know of the existence of a violative condition." Kenny Richardson, 3 FMSHRC at 16. Section 

110(c) liability is predicated on aggravated conduct constituting more than ordinary negligence. 

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (August 1992). 

1210 
·. 

There is no direct evidence in this case that Gonz knew Hom was working over the 

subject shaft without being properly tied off and, indeed, Gonz testified that he assumed Horn 

was tied off because he had earlier seen him wearing a safety belt. However, given what I find to 

be credible evidence of the egregious failure by Gonz to have enforced the cited standard, 

including what I find to have been his failure to have enforced the standard against Mcintosh 

resulting in his death, the failure on that same shift of at least three other miners working directly 

under Gonz' supervision to have worn properly attached safety belts while working over the 

shaft and Gonz' own habitual failure to comply with the standard in the presence of his 

subordinate workers, I conclude that his conduct may be characterized as reckless and showing 

such indifference and lack of reasonable care as to constitute "unwarrantable failure". These 

findings are based on the credible testimony of Monty Wilson, Stephen Heath, Samuel Parkhill 

and James Horn. Significantly, Wilson testified that both Hom and Gonz himself seldom wore a 

safety belt and that Gonz once taunted him for wearing a safety belt. Moreover, according to 

Wilson, neither Gonz nor Hom were wearing tied off safety belts the night Mcintosh fell into the 

shaft. No motive has been shown for Wilson to have testified other than truthfully. Under the 

circumstances I find that the violation was indeed the result of "unwarrantable failure" . 

Based upon the aforementioned evidence I also conclude that Gonz committed a 

"knowing" violation. According to the credible evidence, four miners under Gonz' supervision, 

and Gonz himself, were working over the shaft around the time of the fatal accident, without 

properly tied off safety belts. Under these circumstances and considering the credible evidence 

of prior lack of compliance with the standard by Horn and Gonz himself, I find that Gonz had 

reason to know that Horn would also have been in violation of the standard as charged. While 

Respondents cite Gunther-Nash's alleged training program and policies as reasons for negating 

findings of "unwarrantability" and a "knowing" violation, these programs and policies warrant 

but little consideration in light of what had been clearly a blatant disregard for actual compliance 

with the safety belt requirements. 

In assessing a civil penalty in this case I have considered that the violation was of the 

highest gravity and the result of extraordinarily high negligence. I also note the operator's size 

and history of violations and give credit for good faith abatement. No evidence has been 

produced regarding Mr. Gonz' history of violations or his "size" or "ability to continue in 

business" as defined by the Commission in Sunny Ridge Mining Co., 19 FMSHRC 254 

(February 1997). The burden is in any event upon the operator or the individual agent to produce 

evidence of the inability to continue in business. Accordingly I find civil penalties of $50,000 

and $1,000 respectively, against Gunther- Nash and Albert Gonz, to be appropriate. 

1211 
ORDER 

The "significant and substantial" violation and "Section 104(d)(1)" Citation No. 4263749 

are hereby affirmed. Gunther-Nash Mining Construction Company is directed to pay a civil 

penalty of$50,000 within 30 days of the date of this decision. Albert Gonz, an agent of the 

corporate mine operator, has violated the provisions of Section 11 0( c) of the Act and is hereby 

directed to pay a civil penalty of$1,000 within 30 days of the date of this decision. 

l I 

j"-· / t 

' Gill)' Meli k \ \_ 

Administr tive Law Judg~ Distribution: 

Christine M. Kassak, Esq., Office of the Solicitor, U.S.'Dept. of Labor, 230 S. Dearborn Street, th 

Floor, Chicago, IL 60604 (Certified Mail) 

William H. Howe, Esq., Howe, Anderson & Steyer, P.C., 1747 Pennsylvania Avenue, N.W., 

Suite 1050, Washington, D.C. 20006 (Certified Mail) 

/nt 

••• r 

.,. 

··i" 

1212 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 3 1998 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 94-57 

A C. No. 46-01968-04121 

Blacksville No. 2 Mine 

DECISION ON REMAND 

Before: Judge Barbour 

The Commission has directed me to reconsider whether a violation of 30 C.F .R. 

§ 75.1101-23(a) was of a significant and substantial nature ("S&S") (Consolidation Coal Co., 

20 FMSRHC _, Docket No. WEV A 94-57 (September 16, 1998)). 

EACTSANDPROCEDUBALBACKGROUND 

Section 75.11 01-23(a) requires an operator to "adopt a program for the instruction of all 

miners in the ... proper evacuation procedures to be followed in the event of an emergency." A 

citation alleging a violation of the standard was issued to Consol by the Secretary's Mine Safety 

and Health Administration (MSHA) following MSHA's investigation of a March 15, 1993, fire 

at Consol's Blacksville No.2 Mine. The fire was in the belt entry, at the belt drive of the 

16-M longwall section. 

At the time the fire occurred, there were two fire detection systems in the entry: a heat 

sensor system and a carbon monoxide ("CO") monitoring system. The CO system was only 

partially completed in that the hist CO sensor of the system and the system's outstation were not 

installed. 

The belt entry was ventilated by two splits of air. The air in one split flowed from the 

longwall face outby, down the belt entry, until it entered the return at the regulator. The air in the 

other split flowed from the belt entry transfer point, inby through a box check, over the belt 

drive, through a second box check, and into the return at the regulator. In terms of ventilation, 

the working sections potentially affected by the fire were the 16-M and 17-M sections, both of 

which were inby the fire. 

1213 
·. 

The fire was detected by a miner who was traveling the belt entry. He reported the fire to 

the person underground who was in charge of the section and to ·the dispatcher on the surface. 

Almost immediately thereafter, the heat sensor alarm at the tailpiece activated, confinning the 

fire, and the person in charge of the section telephoned the 16-M section and informed the 

longwall miners to assemble at the headgate. The dispatcher contacted the mine foreman and the 

assistant mine foreman. The superintendent also learned of the fire and directed the mine 

foreman to take charge of the situation. The mine foreman told the dispatcher to send water cars 

to the area. In addition, the assistant mine superintendent began to travel toward the site of the 

fire. 

At about the same time as the fire was detected, the 16-M section foreman saw smoke 

moving toward the regulator in the return. He then saw the person who originally detected the 

fire and the two men traveled to the box check nearest the belt drive. They entered the belt entry 

and proceed to the site of the fire at the belt drive. Water was spraying from the fire suppression 

system. It had doused the fire, and there were no flames. The 16-M section foreman called the 

mine superintendent and told him the fire was out. 

Meanwhile, the longwall crew assembled as instructed. They discussed the route they 

would take to evacuate the section. After they decided on the route, a crew member telephoned 

the foreman who had been placed in charge of the situation. The crew member told the foreman 

what the miners planned to do. However, the foreman stated the fire was out and that the crew 

should stay together on the section. As a result, no one on the 16-M section evacuated to an area 

outby the fire. In addition, no one left the 17-M section. 

MSHA investigated and issued an order of withdrawal charging Consol with a violation 

of section 75.11 Ol-23(a) because of noncompliance with its firefighting and evacuation plan. 

The Secretary asserted management "did not assure that those persons . . . in the affected area be 

immediately withdrawn outby" (Gov. Exh. 6A at 1). The Secretary also asserted that 

management's failure to immediately withdraw the miners was S&S. 

I concluded the Secretary proved a violation of the standard (18 FMSHRC 1189, 1229-31 

(July 1996)). I found the company violated both its "general duty immediately to withdraw the 

affected miners ofthe 16-M and 17-M sections" and its specific duty to "withdraw the 16-M 

section miners outby when the fire sensor alann activated" (18 FMSRHC at 1231). 

I also found the violation was not S&S. I reasoned the Secretary proved three of the four 

criteria required by the Commission in Mathies Coal Co., 6 FMSHRC 3, 3-4 (January 1984), but 

she did not prove there was a reasonable likelihood the hazard contributed to would have resulted 

in an injury (18 FMSHRC at 1233). Because the fire was extinguished when the company failed 

to withdraw the miners or was extinguished shortly thereafter, I found it was not likely the fire at 

the belt would have intensified had normal mining operations continued. Further, even if the fire 

rekindled as mining operations continued, I found the heat sensors and CO monitors along the 

belt would have detected the fire and made its rapid extinguishment probable. Thus, any fire was 

1214 
likely to be of short duration and not of major intensity (18 FMSHRC at 1233). Finally, I found 

that given the ventilation system, it was not reasonably likely smoke and fumes would have gone 

to the face of either section. In making this finding, I credited the testimony of Consol's mining 

consultant (18 FMSHRC at 1234). 

The Commission reversed. It held I disregarded the fact the heat sensor system had been 

turned off after the fire and was not turned on until well after the shift on which the fire occurred. 

In addition, it held that I. failed to address testimony the CO sensor at the regulator was placed at 

an incorrect location so that it would have failed to detect any fire between the belt drive area and 

the regulator inby the belt drive. Finally, the Commission found I failed to consider evidence 

there had been a programming error with the CO sensor located at the belt drive so that there 

may have been no CO monitoring between March 15 and March 23. Therefore, the Commission 

instructed me to reconsider whether "there was a reasonable likelihood the hazard of rekindling a 

fire would result in an injury" (Consolidation Coal Co., slip op. 6). The Co~ission expressly 

directed my attention to testimony that part of the belt located a short distance outby the belt 

drive was bubbled and blistered (Tr. 297, 746-747, 876). 

In determining the reasonable likelihood of injury from the hazard of rekindling the fire 

(Consolidation Coal Co., slip op. 6), it is important to recall the Commission's instruction that an 

S&S finding "must be based on the particular facts surrounding the violation. includin~ the 

nature ofthe mine involved" (Texasgu/f, Inc., 4 FMSHRC 498, 501 (April198S) (emphasis 

added)). Given this directive, I must take into account the facts surrounding the May 15 fire and 

the nature of the ventilation system at the mine. 

First, to establish there was a reasonable likelihood of injury from the hazard of 

rekindling the fire, the Secretary had to prove it was reasonable likely the fire would have 

reignited. She failed to do so. The testimony is clear the fire was of short duration and was 

extinguished minutes after it broke out. The testimony also established the most likely ignition 

source of the fire was the friction created by the belt slipping over the rollers at the belt drive, 

which, in turn caused heat that ignited pine boards alongside the belt drive . The resulting fire 

burned the boards and scorched the belt, causing the belt to bubble and blister. 

After the fire was ignited, the belt continued operating for a very short time and then shut 

down. This is confirmed by the fact the blistered portion of the belt was found no more than 

50 feet from the belt drive and by the fact that those in the face area noticed that the belt stopped 

right before the alarm activated. Shutting down the belt eliminated one of¢e possible reignition 

sources, and there is no indication the slippage problem would have recurred when mining 

resumed because the problem would have been corrected prior to that. 

1215 
- Altho-ugh it is possible smouldering wood or coal could have been transported in by the 

belt drive for a short distance before the belt shutdown, the beltline was examined past the point 

it w;ts reasonable to expect the wood or coal could have traveled and no evidence of any ignition 

source was detected. 1 Further, miners stayed in the belt drive area for about an hour after the fire 

was out. They checked coal under the belt near the belt drive to make sure the fire did not restart 

and I infer they would have detected any indication of the fire restarting in any other nearby area 

along the belt. For these reasons, I conclude it was not reasonably likely the fire would have 

rekindled. 2 

Second, even if the fire had rekindled, the Secretary did not establish it was reasonably 

likely smoke and fumes would have traveled to the working sections and posed a hazard to the 

miners. Previously, I noted the inspector agreed that given the mine's ventilation system. smoke 

and fumes normally would have been carried away from the working sections and out the return. 

I also credited the testimony ofConsol's ventilation expert who "persuasively and ... fully" 

explained that the air pressure differential between the track entry and the belt entry made it very 

unlikely that smoke ever would have traveled to the faces, barring a fire of major intensity and of 

up to 10 hours duration (18 FMSHRC at 1233-34). In view of the the fact miners stayed in the 

area of the belt drive for about an hour after the ignition, and given the fact a rekindled fire 

would have had to be very close to the belt drive area, I infer that any such fire would have been 

detected and extinguished long before it gained the intensity and duration necessary to reverse 

the airflow. Therefore, upon examining the particular facts surround the violation of 

section 75.110 1-23(a), I conclude the violation was not S&S. 

That the Secretary's proof has failed is not surprising. Her S&S assertion was ill-founded 

from its inception. Contrary to the Commission's instruction in Texasgulf, the inspector testified 

he based the finding on "facts surrounding other belt fires and other fires in coal mines where 

persons have not been evacuated," not on facts particular to the May 15 fire and the Blacksville 

No. 2 Mine (Tr. 517). 

_}).,v;cl_d"" b t:Jv "-

David Barbour 

Administrative Law Judge 

1 I Given the brief period that elapsed between the ignition and the shut down of the belt, 

nothing would haye been carried much further than the bubbled and blistered area of the belt. 

2

1 This finding should not be viewed as contrary to the statement in the initial decision 

that "the fact the fire was extinguished did not mean that potential ignition sources, which could 

have started a fire, had not been carried in by ... the fire" (I 8 FMSHRC at I 23 I). The statement 

describes the viewpoint of miners at the longwall face who were unaware of the source of the fire 

and of the facts surrounding the fire and its extinguishment. 

1216 
Distribution: ·. 

Robin Rosenbluth, Esq., Office of the Solicitor, U.S. Department ofLabor, 4015 Wilson 

Boulevard, Suite 400, Arlington, VA (Certified Mail) 

Stephen D. Williams, Esq., Steptoe and Johnson, P. 0. Box 2190, Clarksburg, WV 26392 

(Certified Mail) 

dcp 

1217 
- - FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEY ARD #280 

DENVER, CO 80204-3582 . 

303-844-3577/FAX 303-844-5268 

ocr 2 6 1993. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 98-88-M 

A.C. No. 14-01467-05519 

v. Portable Plant No. 1 

WALKER STONE COMPANY, 

Respondent 

DECISION 

Appearances: Barbara J. Renowden, Conference and Litigation Representative, Mine 

Safety and Health Administration, Denver, Colorado, for Petitioner; 

Keith R. Hemy, Esq., Weary, Davis, Hemy, Struebing, Troup & Kaus, 

Junction City, Kansas, for Respondent. 

Before: Judge Manning 

This case is before me on a petition for assessment of penalty filed by the Secretary of 

Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Walker 

Stone Company ("Walker Stone"), pursuant to sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The petition alleges three 

violations of the Secretary's safety standards. A hearing was held in Junction City, Kansas. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Walker Stone operates.a portable crusher and quarry (the "quarry") in Butler County, 

Kansas. On November 13, 1997, MSHA Inspector James G. Enderby inspected haulage 

equipment at the quarry. During his inspection he issued four citations under section 104(a) of 

the Mine Act and Walker Stone contested three of these citations in this civil penalty proceeding. 

A. Citation No. 4670673 

This citation alleges a violation of 30 C.F.R.§ 56.1410 I (a)(2), as follows: 

The parking brake of the Caterpillar 966 C wheel loader would not 

hold the loader on the ramp at the primary crusher when tested . 

. The test was done when the bucket of the loader was empty. The 

1218 
loader was being used to haul shot rock from the quarry to the 

primary crusher. 

Inspector Enderby determined that the violation was of a significant and substantial 

nature ("S&S") and was the result of Walker Stone's moderate negligence. Section 

56.1410l(a)(2) provides that "[i]fequipped on self-propelled mobile equipment, parking brakes 

shall be capable of holding the equipment with its typical load on the maximum grade it trav.els." 

The citation was terminated after the parking brakes were repaired. The Secretary proposes a 

penalty of$136 for this alleged violation. 

Inspector Enderby asked Mick Johnston, who was the supervisor at the quarry, to start up 

the Caterpillar 966 C wheel loader (the "loader"). This loader was a spare loader that was 

generally used when the other loader at the quany was not available. Inspector Enderby 

examined. the operating systems on the loader, including the braking systems. The service brakes 

passed the inspector's test. Inspector Enderby asked Mr. Johnston to drive the loader up the 

ramp for the crusher and apply the parking brake without using the service brakes. The bucket 

on the loader was empty. The parking brake did not hold the loader. These facts are not 

contested by Walker Stone. 

I find that the Secretary established a violation of the safety standard. The loader was 

equipped with a parking brake which was not capable of holding the loader. The ramp is angled 

at about 18 degrees which is the maximum grade at the quarry. The loader is classified as "selfpropelled mobile equipment." 

The issue is whether the Secretary established that the violation was S&S. An S&S 

violation is described in section 104(d)(l) of the Mine Act as a violation "of such nature as could 

significantly and substantially contribute to the cause and effect of a ... mine safety or health 

hazard." A violation is properly designated S&S "if based upon the particular facts surrounding 

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

injury or illness of a reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 

(April 1981 ). In Mathies Coal Co., 6 FMSHRC I, 3-4 (January 1984), the Commission set out a 

four-part test for analyzing S&S issues. Evaluation of the criteria is made assuming "continued 

normal mining operations." US. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The 

question of whether a particular·violation is S&S must be based on the particular facts 

surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). 

The Secretary must establish: (1) the underlying violation of the safety standard~ (2) a 

discrete safety hazard, a measure of danger to safety, contributed to by the violation~ (3) a 

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

likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not 

required to show that it is more probable than not that an injury will result from the violation. 

US. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). 

1219 
There was a violation of the standard and a measure of danger to safety contributed to by 

the violation. The issue critical is whether there was a reasonable likelihood that the hazard 

contributed to by the violation will result in an injury. I find that the Secretary did not establish 

that an injury was reasonably likely in this instance. 

The service brakes were in good condition on the day of the inspection. If the loader 

stalled on the ramp to the crusher, the service brakes would prevent the loader from rolling back 

down the ramp. When the hydraulic system for the service brakes fails, pressure generally 

remains in the braking system for several hours. The loader operator would need to use the 

parking brake as an emergency brake only if there was a major rupture in the hydraulic system. 

Thus, the loader operator would use the parking brake to control the vehicle if the engine stalled 

on the ramp and the hydraulic system was ruptured so that the service brakes would not hold. 

These two events would have to occur simultaneously. As stated above, the loader was a spare 

that was not normally used to haul rock to the crusher. 

The loader is about 8 ~ feet wide and about 15 feet long. The ramp is about 16 to 18 feet 

wide, 40 feet long, and about 7 feet high at the top. If all braking systems were to fail while the 

loader was at the top of the ramp, the loader would roll about 25 feet down the ranip. Walker 

Stone was cited for not having berms on the ramp during this same inspection. The ramp was 

more than twice as wide as the loader, however, so it is unlikely that the loader operator would 

run off the side of the ramp in the event all braking systems failed. The working area for the 

loaders was relatively flat throughout the remainder of the quarry. 

The quarry employed three individuals at the crushing plant: the crusher operator, the 

operator of the regular loader, and Mr. Johnston. These individuals did not walk around in the 

area of the crusher while the loader was operating. I find that it was not likely that anyone would 

be run over in the event all of the braking systems failed and the loader rolled down the ramp. 

The quarry ~id not operate at night. A pug mill was also located at the quarry: Rock crushed in 

the Walker Stone's crusher was transported to the pug mill via a belt conveyor. The pug mill 

was not operated by Walker Stone and employees of the mill did not work around the crusher. 

The pug mill was not near the route that the loaders traveled when transporting shot rock to the 

crusher. 

I find that it was not reasonably likely that the hazard contributed to by this violation 

would result in an injury, assuming continued normal mining operations. First, it is unlikely that 

all braking systems would fail while the loader was on the ramp and that, as a consequence, the 

loader would roll down the ramp or off the side of the ramp. Second, even assuming such an 

event occurred, it is unlikely that anyone would be injured as a result. Pedestrians were not 

usually in the area and the quarry does not operate at night. Even if one were to assume that t~e 

· A "pug mill" is a machine for mixing clay with water. A Dictionary of Mining, 

Mineral, and Related Terms, 875 ( 1968). It is not clear from the record if the pug mill at the 

quarry mixed clay and water, but it processed at least some of the product from the crusher. 

1220 
loader·rolled off the edge of the ramp, it is unlikely that the loader operator would be seriously 

injured unless he were not wearing a seat belt. The loader was I 3 ~ feet high and the ramp is 

about 7 feet high at its highest point. The loader was equipped with rollover protection. 

· Thus, although I fmd that an operational parking brake is required by the standard, I find 

that under the facts of this case the violation was not S&S. I recognize that injuries and fatalities 

have occurred at mines where a parking brake was not working on mobile equipment. For 

example, in Fluor Daniel, Inc., 16 FMSHRC 2049 (October I994)(ALJ), a miner was killed 

when he was pushed over a berm by a runaway fork lift truck. The braking systems on the truck 

had been tested at the beginning of the shift. In that instance, however, the truck had been turned 

off, put in neutral, and the parking brake set when it rolled forward striking a miner working in 

front of the truck. The truck was on an incline. In the present case, the operator of the loader 

would never park his vehicle on the ramp to the crusher. The Secretary's case was not based on 

such a scenario. I find that too many unlikely events would have to occur simultaneously in 

order for the violation to contribute to a reasonably serious injury. 

I find that the violation was serious and that Walker Stone's negligence was moderate. It 

was serious because it created a safety hazard. This defe_ct should have been detected during 

preshift examinations of the loader. 

B. Citation No. 4670674 

This citation alleges a violation of30 C.F.R.§ 56.14100(b), as follows: 

The drive lights on the Caterpillar 966 C wheel loader were not 

being maintained. The headlight on the right side of the operator 

was broken and the left one did not work. The drive lights would 

make for safer operation of the loader during limited visibility and 

high dust periods. 

Inspector Enderby determined that the violation was S&S and was the result of Walker 

Stone's moderate negligence. Section 56.14100(b) provides that "[d]efects on any equipment, 

machinery, and tools that affect safety shall be corrected in a timely maMer to prevent the 

creation of a hazard to persons." The citation was terminated after the lights were repaired. The 

Secretary proposed a penalty of$136 for this alleged violation. 

I find that the Secretary established a violation. Broken headlights on a loader are a 

defect that affects safety. Although the quarry is not open at night, it operates between 7 a.m. 

and 5 p.m. It is almost dark at the begiMing and end of the shift at certain times of the year. 

Weather conditions, such as fog, rain, drizzle, and snowfall, can affect visibility. Inspector 

Enderby noted that it was foggy and overcast on the day of his inspection. In such conditions, the 

loader operatOr could fail to see other vehicles, equipment, or pedestrians. There is no dispute 

that the cited conditions had existed for a considerable length of time. 

1221 
Walker Stone does not contest the fact that the lights were not working. It argues that the 

condition did not create a safety hazard. Mr. Johnston testified that he would shut down the 

quarry if the weather conditions were so severe that equipment operators could not see to operate 

their equipment. He also testified that the loader is not put into service until an hour after the 

beginning of the shift and that it is shut down well before the end of the shift. He stated that the 

loader was clearly visible on the day of the inspection and that he could see other equipment and 

pedestrians from the operator's cab without the use of headlights. 

I believe that these factors directly relate to whether the violation was S&S, not to the fact 

of violation. The inoperable lights were a defect that affected safety and the defect was not 

corrected in a timely manner to prevent the creation of a hazard to the operator and other persons 

working in the quarry. 

I find that the Secretary did not establish that the violation was S&S. The loader only 

operated during daylight hours. A safety hazard was presented during inclement weather, 

especially near the beginning and end of the shift, but it is not reasonably likely that the lack of 

operable headlights will result in an injury. As stated above with respect to the previous 

violation, only three individuals worked in the area. I credit the testimony of Mr. Johnston that a 

loader operator can see obstacles, equipment, and pedestrians when operating the loader without 

the use of headlights. I also credit his testimony that if visibility becomes so obstructed by fog or 

other weather conditions that employees cannot see well enough to do their work, he shuts down 

the quarry. I recognize that the ramp was not protected by berms at the time the citation was 

issued. This fact increases the hazard presented by the violation, but given the evidence 

discussed above, including the fact that the ramp was short and wide,-1 believe that it does not 

establish that the violation was S&S. I have taken the fact that berms were not present into 

consideration in assessing the civil penalty. 

In ~any instances, the lack of headlights would create an S&S violation. Under the facts 

of this case, an injury was not reasonably likely. Other inspectors and administrative law judges 

have reached the same conclusion in similar circumstances. See Bob Bak Construction, 19 

FMSHRC 582, 604~05 (March 1997)(ALJ). 

I find that the gravity of the violation was moderate because it created a safety hazard to 

employees. I find that Walker.Stone's negligence was moderate. The parties agree that this 

condition existed for a considerable length of time. This quarry had been inspected numerous 

times by MSHA inspectors and the condition was not cited during these inspections. David 

Walker, president of Walker Stone, testified that he would have made sure that headlights were 

operational on all mobile equipment if he had knO\\'Il that it was required under this standard. 

Because the standard does not mention headlights and the quarry operates only during daylight 

hours, he did not understand that headlights were required to be operational under the standard. 

Nevertheless, similar citations were issued at Portable Plant No. 4 and at the Kansas Fall Quarry 

in October 1997. Thus, Walker Stone was put on notice ofthe requirements ofthe standard at 

that time. 

1222 
C. Citation No. 4670675 

This citation alleges a violation of30 C.F.R.§ 56.14100(b), as follows: 

The drive lights on the Caterpillar 980 C wheel loader were not 

being maintained in a functional condition. The use of drive lights 

would make for safer operation of the loader during limited 

visibility. 

Inspector Enderby determined that the violation was S&S and was the result of Walker 

Stone's moderate negligence. The citation was terminated after the lights were repaired. The 

Secretary proposed a penalty of$136 for this alleged violation. 

I find that the Secretary established a violation for the same reasons discussed above. 

Broken headlights on a loader is a defect that affects safety. This loader is the vehicle that is 

normally used to transport shot rock from the quany to the crusher. There is no dispute that the 

cited conditions had existed for a considerable length of time. I find that the inoperable lights 

were a defect that affected safety and the defect was not corrected in a timely manner to prevent 

the creation of a hazard to the operator and other persons working in the quarry. 

For the reasons discussed above, I find that the Secretary did not establish that the 

violation was S&S. The loader only operated during daylight hours. A safety hazard was 

presented during inclement weather~ especially near the beginning and end of the shift, but it is 

not reasonably likely that the lack of operable headlights will result in an injury. I rely on the 

same facts in reaching this conclusion as I did for Citation No. 4670674. I also find that the 

gravity of the violation was moderate and that Walker Stone's negligence was moderate. 

II. APPROPRIATE CIVIL PENALTIES 

Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. The parties stipulated to many of the criteria. I find that one citation 

was issued at the quarry in the 24 months preceding November 13, 1997. The quarry was a small 

operation employing three individuals at the plant. The Secretary did not submit evidence as to 

the size of Walker Stone. Based on the penalty points assessed by MSHA, I find that it is a 

relatively small operator. The violations were rapidly abated. The penalties assessed in this 

decision will not have an adverse effect on Walker Stone's ability to continue in business. I find 

that the penalties set forth below are appropriate for the violations. 

1223 
III. ORDER 

Based on the criteria in section llO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: . 

Citation No. 

4670673 

4670674 

4670675 

30 C.F.R. § 

56.14101(a)(2) 

56.14100(b) 

56.14100(b) 

Penalty 

$120.00 

100.00 

100.00 

Accordingly, the citations listed above are AFFIRMED as modified to delete the S&S 

determinations, and Walker Stone Company is ORDERED TO PAY the Secretary of Labor the 

sum of$320.00 within 40 days of the date of this decision. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Barbara J. Renowden, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (Certified Mail) 

Keith R. Henry, Esq., Weary, Davis, Henry, Struebing Troup & Kaus, P.O. Box 187, Junction 

City, KS 66441 (Certified Mail) 

RWM 

1224 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEY ARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

October 26, 1998 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 98-99-M 

A.C. No. 14-01560-05508 

V. Portable Plant No. 4 

WALKER STONE COMPANY, ' 

Respondent 

Appearances: 

Before: 

DECISION 

Barbara J. Renowden, Conference and Litigation Representative, Mine 

Safety and Health Administration, Denver, Colorado, for Petitioner; 

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

Junction City, Kansas, for Respondent. 

Judge Manning 

This case is before me on a petition for assessment of penalty filed by the Secretary of 

Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Walker 

Stone Company ("Walker Stone"), pursuant to sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The petition alleges two 

violations of30 C.F.R. § 56.14100(b). A hearing was held in Junction City, Kansas. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Walker Stone operates a portable crusher and quarry (the "quarry") in Geary County, 

Kansas. On October 30, 1997, MSHA Inspector Chrystal Dye inspected haulage equipment at 

the quarry. During her inspection, she issued two citations under section 104(a) ofthe .Mine Act. 

Citation No. 4670753 alleges a violation of30 C.F.R.§ 56.14100(b), as follows: 

The headlights on the Cat. 980 B loader, No. 19, were not 

functional to make the loader visible to others an~ to improve 

visibility for the operator. Headlights were not necessary during 

the inspection. It was a sunny day and no visible dust blowing 

around. No foot traffic in the area. 

1225 
Citation No. 46707545 is similar to the first citation except that it covers the Cat 980 PG 

loader. -Inspector Dye determined that the violations were not of a significant and substantial 

nature ("S&S") and were the result of Walker Stone's moderate negligence. Section 56.14100(b) 

provides that "[d]efects on any equipment, machinery, and tools that affect safety shall be 

corrected in a timely manner to prevent the creation of a hazard to persons." The citations were 

terminated after the lights were repaired. The Secretary proposes a penalty of $50 for each 

alleged violation. 

I find that the Secretary established the violations. Inoperable headlights on a loader are a 

defect that affects safety. The quarry does not operate after dark. Its hours are generally 7:30 

a.m. to 4:30p.m. It is almost dark at the beginning and end of the shift at certain times of the 

year. Weather conditions, such as fog, rain, drizzle, and snowfall, can affect visibility. The 

quarry is close to a lake and fog is not uncommon in the morning. In such conditions, the loader 

operator could fail to see other vehicles, equipment, or pedestrians. The quarry employed nine 

individuals at the time of the inspection. There is no dispute that the cited conditions had existed 

for a considerable length of time. 

Walker Stone does not contest the fact that the lights were not working. It argues that the 

lack of headlights did not create a safety hazard. Walker Stone contends that other employees 

working at the quarry can clearly see the loaders without the headlights on and that the headlights 

do not improve the loader operators' ability to see obstacles, pedestrian, and other equipment. 

Mike Marts, foreman at the quarry, testified that he shuts down the quarry in inclement weather 

and whenever visibility is a problem. He also testified that the loaders are put into service after 

the beginning of the shift and that they stop operating before the end of the shift. 

I believe that these factors directly relate to the gravity of the violations rather than to the 

fact of violation. The inoperable lights were a defect that affected safety and the defect was not 

corrected in a timely manner to prevent the creation of a hazard to the operator and other persons 

working in the quarry. Although a loader operator may not normally need headlights to operate 

safely, conditions can quickly change. For example, the wind can pick up and send dust into the 

air making it difficult for operators of other equipment to see the loaders. The violations created 

a safety hazard to employees. I agree with the inspector's analysis that the violations were not 

highly serious. 

Walker Stone argues that MSHA should have exercised its discretion to advise quarry 

operators of the need to have operable headlights on mobile equipment because the safety 

standard does not specifically require working headlights. Walker Stone introduced an MSHA 

document entitled "Metal and Nonmetal Fatality Reduction Program: Talking Points," dated 

September 1997, that was distributed to mine operators. (Ex. R-A). In this document, MSHA 

stresses that mine operators should review conditions at their mines to eliminate conditions that 

have led to fatal accidents. It lists such conditions as inadequate guards, unblocked equipment, 

and loose ground. It does not mention lights on mobile equipment. Walker Stone's witnesses 

testified that the company would have taken steps to fix all lights on mobile equipment if it knew 

that lights were required by MSHA. Its witnesses also testified that the quarry has been 

inspected by MSHA many times and it has never been cited for inoperable lights on mobile 

1226 
equipment. These witnesses stated that the subject of lights was never raised by MSHA in the 

past and that W ~ker Stone should not be penalized for the lack of headlights. 

The Secretary's approach to enforcing her safety and health standards is committed to her 

discretion. In the absence of proof of an abuse of that discretion, I do not have the authority to 

vacate citations based on her enforcement strategies. Apparently, the Secretary had become 

concerned about the number of accidents at metal and nonmetal mines, particularly haulage 

accidents, and directed MSHA inspectors to conduct inspections that focused on haulage issues 

at such mines. While I agree with Walker Stone that the Secretary could have issued a more 

specific memorandum to mine operators that included an instruction to check headlights, her 

decision not to do so does not constitute an abuse of her discretion. Likewise, the decision of 

Inspector Dye to issue citations for the lack of operable headlights does not constitute an abuse of 

discretion. The Mine Act imposes strict liability on a mine operator. See, e.g. Asarco v. 

FMSHRC, 868 F .2d 1195 (1Oth Cir. 1989). "[W]hen a violation of a mandatory safety standard 

occurs in a mine, the operator is automatically assessed a civil penalty." !d. at 1197. I cannot 

vacate the citations on the basis that the Secretary did not provide specific advance guidance to 

Walker Stone. 

I find that Walker Stone's negligence was low. The parties agree that the cited 

conditions existed for a considerable length of time. This quarry had been inspected numerous 

times by MSHA inspectors and the conditions were not cited during these inspections. David 

Walker, president of Walker Stone, testified that he would have made sure that headlights were 

operational on all mobile equipment if he had known that it was required under this standard. 

Because the standard does not mention headlights and the quarry operates only during daylight 

hours, he did not understand that headlights were required to be operational under the standard. 

II. APPROPRIATE CIVIL PENAL TIES 

Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. The parties stipulated to many of the criteria. I fmd that two citations 

were issued at the quarry in the 24 months preceding October 30, 1997. The quarry was a small 

operation employing nine individuals at the plant. Walker Stone is a relatively small operator. 

The violations were rapidly abated. The penalties assessed in this decision will not have an 

adverse effect on Walker Stone's ability to continue in business. I fmd that the penalties set forth 

below are appropriate for the violations. 

1227 
III. ORDER 

Based on the criteria in section llO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 

4670753 

4670754 

30 C.F.R. § 

56.14100(b) 

56.141 OO(b) 

Penalty 

$50.00 

50.00 

Accordingly, the citations listed above are AFFIRMED and Walker Stone Company is 

ORDERED TO PAY the Secretary of Labor the sum of$100.00 within 40 days of the date of 

this decision. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Barbara J. Renowden, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (Certified Mail) 

Keith R. Henry, Esq.~ Weary, Davis, Henry, Struebing Troup & Kaus, P.O. Box 187, Junction 

City, KS 66441 (Certified Mail) 

RWM 

1228 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

30~-844-3577/F AX 303-844-5268 

OCT 2 6 1998 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 98-115-M 

A.C. No. 14-00164-05535 

v. Kansas Falls Quarry & Mill 

WALKER STONE COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Gary L. Grimes, Conference and Litigation Representative, Mine Safety 

and Health Administration, Denver, Colorado, for Petitioner; 

Keith R. Heruy, Esq., Weary, Davis, Heruy, Struebing, Troup & Kaus, 

Junction City, Kansas, for Respondent. 

Judge Manning 

· This case is before me on a petition for assessment of penalty filed by the Secretary of 

Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Walker 

Stone Company ("Walker Stone"), pursuant to sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The petition alleges one 

violation of30 C.F.R. § 56.l4100(b). A hearing was held in Junction City, Kansas. 

I. .FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Walker Stone operates a quarry and mill (the "quarry") in Dickinson County, Kansas. On 

October 29, 1997, MSHA Inspector Chrystal Dye inspected haulage equipment at the quarry. 

During her inspection, she issued one citation under section 104(a) of the Mine Act. 

Citation No. 7925246 alleges a violation of30 C.P.R.§ 56.14100(b), as follows: 

The headlights on the Cat. 988 B loader were not functional to 

make the loader visible to others and to improve visibility for the 

operator. Headlights were not necessary during the inspection. It 

was a sunny day and no visible dust blowing around. No foot 

traffic in the area. 

1229 
!nspector Dye determined that the violation was not of a significant and substantial nature 

("S&S") and wa.S the result of Walker Stone's moderate negligence. Section 56.14100(b) 

provides that "[d]efects on any equipment, machinery, and tools that affect safety shall be 

corrected in a timely manner to prevent the creation of a hazard to persons." The citation was 

terminated after the lights were repaired. The Secretary proposes a penalty of $50. 

I fmd that the Secretary established the violation. Inoperable headlights on a loader are a 

defect that affects safety. The quarry operates during daylight hours only. It is almost dark at the 

beginning and end of the shift at certain times of the year. Weather conditions, such as fog, rain, 

drizzle, and snowfall, can affect visibility. The quarry is close to a river and fog is not 

uncommon in the morning. In such conditions, the loader operator could fail to see other 

vehicles, equipment, or pedestrians. The loader operator must travel through a twmel under a 

county road at the beginning and end of each shift. The quarry employed 25 to 30 individuals at 

the time of the inspection. There is no dispute that the cited condition had existed for a 

considerable length of time. 

Walker Stone does not contest the fact that the lights were not working. It argues that the 

lack of headlights did not create a safety hazard. Walker Stone contends that other employees 

working at the quarry can clearly see the loader without the headlights on and that the headlights 

do not improve the loader operator's ability to see obstacles, pedestrian, and other equipment. 

Clifford Moenning, foreman at the quarry, testified that he shuts down the quarry in the event of 

fog or inclement weather. He also testified that the loader is put into service after the begitu1ing 

of the shift and that it stops operating before the end of the shift. 

I believe that these factors directly relate to the gravity of the violation rather than to the 

fact of violation. The inoperable lights were a defect that affected safety and the defect was not 

corrected in a timely manner to prevent the creation of a hazard to the operator and other persons 

working in the quarry. Although a loader operator may not normally need headlights to operate 

safely, conditions can quickly change. For example, the wind can pick up and send dust into the 

air making it difficult for operators of other equipment to see the loader. Headlights may also be 

necessary in the t~el, especially on an overcast day at the end of the shift in the autumn or 

winter. The violation created a safety hazard to employees. I agree with the inspector's analysis 

that the violation was not highly serious. 

Walker Stone argues that MSHA should have exercised its discretion to advise quarry 

operators of the need to have operable headlights on mobile equipment because the safety 

standard does not specifically require working headlights. Walker Stone introduced an MSHA 

document entitled "Metal and Norunetal Fatality Reduction Program: Talking Points," dated 

September 1997, that was distributed to mine operators. (Ex. R-A). In this document, MSHA 

stresses that mine operators should review conditions at their mines to eliminate conditions that 

have led to fatal accidents. It lists such conditions as inadequate guards, unblocked equipment, 

and loose ground. It does not mention lights on mobile equipment. Walker Stone's witnesses 

testified that the company would have taken steps to fix all lights on mobile equipment if it knew 

that lights were required by MSHA. Its witnesses also testified that the quarry has been 

1230 
inspected by M.SHA many times and it has never been cited for inoperable lights on mobile 

equipment. These witnesses stated that the subject of lights was never raised by MSHA in the 

past and that Walker Stone should not be penalized for the lack of headlights. 

The Secretary's approach to enforcing her safety and health standards is committed to her 

discretion. In the absence of proof of an abuse of that discretion, I do not have the authority to 

vacate citations based on her enforcement strategies. Apparently, the Secretary had become 

concerned about the number of accidents at metal and nonmetal mines, particularly haulage 

accidents, and directed MSHA inspectors to conduct inspections that focused on haulage issues 

at such mines. While I agree with Walker Stone that the Secretary could have issued a more 

specific memorandum to mine operators that included an instruction to check headlights, her 

decision not to do so does not constitute an abuse of her discretion. Likewise, the decision of 

Inspector Dye to issue citations for the lack of operable headlights does not constitute an abuse of 

discretion. The Mine Act imposes strict liability on a mine operator. See, e.g. Asarco v. 

FMSHRC, 868 F.2d 1195 (1Oth Cir. 1989). "[W]hen a violation of a mandatory safety standard 

occurs in a mine, the operator is automatically assessed a civil penalty." Id. at 1197. I cannot 

vacate the citation on the basis that the Secretary did not provide specific advance guidance to 

Walker Stone. 

I finq that Walker Stone's negligence was low. The parties agree that the cited condition 

existed for a considerable length of time. This quarry had been inspected numerous times by 

MSHA inspectors and the condition was not cited during these inspections. David Walker, 

president of Walker Stone, testified that he would have made sure that headlights were 

operational on all mobile equipment if he had known that it was required under this standard. 

Because the standard does not mention headlights and the quarry operates only during daylight 

hours, he did not understand that headlights were required to be operational under the standard. 

II. APPROPRIATE CIVIL PENALTY 

Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. The parties stipulated to many of the criteria. I find that 10 citations 

were issued at the quarry in the 24 months preceding October 29, 1997. The quarry was a 

medium-sized operation employing 25 to 30 individuals at the plant. Walker Stone is a relatively 

small operator. The violations were rapidly abated. The penalty assessed in this decision will 

not have an adverse effect on Walker Stone's ability to continue in business. Based on the 

criteria in section llO(i) of the Mine Act, 30 U.S.C. § 820(i), I find that a penalty of$80 is 

appropriate for the violation. I increased the penalty slightly based on the history of previous 

violations at the quarry and the size of the quarry. 

1231 
III. ORDER 

Accordingly, Citation No. 7925246 is AFFIRMED and ·walker Stone Company is 

ORDERED TO PAY the Secretary of Labor the sum of $80.00 within 40 days of the date of this 

decision. 

Distribution: 

g 

Administrative Law Judge 

Gary L. Grim7s, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (Certified Mail) 

Keith R. Henry, Esq., Weary, Davis, Henry, Struebing Troup & Kaus, P.O. Box 187, Junction 

City, KS 66441 (Certified Mail) 

RWM 

1232 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 2 7 1998 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of ROCOE RAY YOUNG, 

Complainant 

v. 

LONE MOUNTAIN PROCESSING, INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. KENT 98-255-D 

BARB CD 98-13 

Huff Creek No. 1 Mine 

Mine ID 15-17234 

DECISION 

Appearances: MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee on behalf of the Complainant; 

Marco M. Rajkovich, Jr., Esq., and Melanie J. Kilpatrick, Esq., Wyatt, Tarrant 

and Combs, Lexington, Kentucky on behalf of the Respondent. 

Before: Judge Melick 

This case is before me upon the complaint of discrimination filed by the Secretary of 

Labor on behalf of Roscoe Ray Young, pursuant to Section 105(c)(2) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act", alleging that Lone Mountain 

Processing, Inc., (Lone Mountain) violated Section 105(c)(l) ofthe Act, when it failed to hire 

Young, an applicant for employment. 1 

1

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

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

cause discrimination against or otherwise interfere with the exercise of the statutory righ~ of any 

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

this Act because such miner, representative of miners or applicant for employment has filed or 

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

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

or safety or health violation in a coal or other mine, or because such miner, representative of 

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

under a standard published pursuant to Section 101 or because such miner, representative of 

miners or applicant for employment has instituted or caused to be instituted any proceeding under 

or related to this Act or has testified or is about to testify in any such proceeding, or because of the 

exerci~e by such miner, representative of miners or applicant for employment on behalf of himself 

or others of any statutory right afforded by this Act. 

1233 
Motion to Dismiss 

In a bench decision the Respondent's motion to dismiss .for the alleged untimely filing of 

the Complaint was denied. That decision is set forth below with only non-substantive changes. 

First I am going to rule on the motion to dismiss for untimely filing. Tills 

case is before me on the complaint by the Secretary of Labor on behalf of Roscoe 

Ray Young under Section 105(c)(2) of the Federal Mine Safety and Health Act of 

1977, alleging that Lone Mountain Processing Inc. refused to hire Mr. Young in 

violation of Section 105(c)(1) of the Act. 

It is undisputed that Mr. Young was advised by letter received on 

September 18, 1997 that he would not be hired by Lone Mountain and that he did 

not file a complaint with the Mine Safety and Health Administration alleging that 

he suffered discrimination until December 8, 1997, some 81 days later. Lone 

Mountain argues therefore that the complaint should be dismissed as untimely. 

In relevant part, Section 105(c)(l) of the Act prohibits discrimination 

against an applicant for employment for engaging in certain protected activities. 

If the applicant for employment believes that he has suffered discrimination in 

violation of the Act and wishes to invoke his remedies under the Act, he must file 

his initial discrimination complaint with the Secretary of Labor within 60 days 

after the alleged violation in accordance with Section 105(c)(2) of the Act 

The Commission has held that the purpose of the 60-day time limit is to 

avoid stale claims but that a miner's late filing may be excused on the basis of 

justifiable circumstances. The authorities are Hollis v. Consolidation Coal 

Company, 6 FMSHRC 21 (January 1984) and Herman v. Imco Services 4 

FMSHRC 2935 (December 1982). 

In·those decisions, the Commission cited the Act's legislative history 

relevant to the 60-day time limit. I quote: "(w]hile this time limit is necessary to 

avoid stale claims being brought, it should not be construed strictly where the 

filing of a complaint is delayed under justifiable circumstances, circumstances 

which could warrant the extension of the time limit would include a case where 

the miner within a 60-day period brings the complaint to the attention of another 

agency or his employer or the miner fails to meet the time limit because he is 

misled as to, or misunderstands his rights under the Act." 

The Commission noted accordingly that timeliness questions must be 

resolved on a case-by-case basis taking into account the unique circumstances of 

each situation. 

At the temporary reinstatement proceedings, the transcript of which has 

1234 
been inc~rporated into this record by reference and agreed to by both parties, Mr. 

Young testified that on September 18, 1997, when he received the letter notifying 

him that he would not be hired, he thought he had a one-year statute limitations 

(which he also thought existed with respect to most lawsuits and litigation) within 

which he had to file his complaint. He testified that he was unaware of the 60-day 

time limit on filing discrimination complaints. I certainly find this testimony to be 

credible and that the delay in this case of approximately 21 days beyond the 60-

day time limit I fmd excusable. 

In reaching this conclusion, I have not disregarded the testimony that he 

had annual refresher training and training to receive certification as a mine 

foreman including training regarding the subject of miner's rights. There is no 

evidence however that such training specifically informed him of the 60-day filing 

requirement. I find that the fact that Mr. Young received such training does not 

suggest that he was indeed informed of the 60-day filing requirement. 

The motion to dismiss for untimely filing is denied. 

The Merits 

This Commission has long held that a Complainant seeking to establish a prima facie 

case of discrimination under Section 1 OS( c) of the Act bears the burden of establishing that he 

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

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

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

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

803,817-18 (1981). 

It is undisputed that on September 3, 1997, and until September 4, 1997, Young was 

employed by Arch of Kentucky (Arch) as a roof bolter. In anticipation of a layoff at Arch, 

Young had applied for employment as a roof bolter at Respondent Lone Mountain's Huff Creek 

No. 1 Mine. As a condition of employment with Lone Mountain, Young was required to take a 

timed roof bolting test on September 3, 1997. He claims that during the second part of the test, 

he encountered unsafe roof conditions. He was given time to correct these conditions by using a 

scaling bar, but maintains that he nevertheless had to slow down to safely complete the test 

thereby causing him to fail to meet the requisite speed to be hired. The Secretary argued on his 

behalf at hearing that even though Mr. Young did not refuse to continue taking the test or request 

a different testing location, Lone Mountain discriminated against Young by not providing 

another place for him to take his roof bolting testing. 

At the conclusion of Mr. Young's testimony, upon which the Secretary acknowledged she 

was relying to establish discriminatory retaliation, Respondent filed a motion to dismiss on the 

grounds that the Secretary failed to establish a prima facie case. In a bench decision set forth 

below with only non-substantive changes, the motion was granted and the case dismissed. 

1235 
_ I grant the motion to dismiss filed today for the reason that the secretary 

has failed' to establish a prima facie case. First of all, Section 105(c)(l) of the Act 

provides in relevant part that no person shall in any manner discriminate against 

or otherwise interfere with the exercise of the statutory rights of any applicant for 

employment in any coal mine subject to this Act because such applicant for 

employment lias filed or made a complaint under or related to this Act including a 

complaint notifying the operator or the operator's agent of an alleged danger or 

safety violation in a coal mine or because of the exercise by such applicant for 

employment on behalf of himself or others of any statutory right afforded by this 

Act. · 

Now, I find first of all that Mr. Young's statement to Mr. Sisk, who is an 

undisputed agent of the operator--that the roof in the second place in which he 

was to continue taking the roof bolting test was bad--was indeed a complaint 

protected under Section 105(c)(l) of the Act. Now, as retaliation, adverse action, 

or disparate treatment, the Secretary argues that Mr. Young had to continue taking 

the roof bolting test in the same place he would have had to take the test had he 

not made a safety complaint. 

I presume the Secretary would argue, and I believe this was made in the 

off-the-record argument, that once Mr. Young made the safety complaint, the 

operator had an obligation to change the location of the test.2 However, since it is 

undisputed that the location of the test was not changed because of Mr. Young's 

safety complaint, there is simply no evidence of retaliation or adverse action or 

disparate treatment. 

Mr. Young himself has testified that he was expected to take the test in the 

second location whether or not he made the safety complaint. The safety 

complaint that he made did not change the location of the continuation of the roof 

bolting test. Therefore, the Secretary cannot sustain her burden of proving 

discriminatory retaliation for that complaint. Therefore, I grant the motion to 

dismiss. -

ORPER 

The bench decisions issued at the hean.· ngs are corrmed and Discrimination Proceedings 

Docket No. KENT 98-255-D are dismissed. ,l ' ·l - t - ~\ ~\; ~ 

Gary elic~ ~ Admi istrative Law Judge 

2

The Secretary also acknowledged however that she is not pursuing this case under a "work refusal" theory. 

1236 
Distribution: 

MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones 

Road, Suite B-201, Nashville, TN 37215 (Certified Mail) 

MarcoM. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, Lexington Financial Center, Suite 1700, 

250 West Main Street, Lexington, KY 40507 (Certified Mail) 

nt 

1237 
1238 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION - . 1730 KSTREET, N.W. 6T8 FLOOR 

WASHINGTON D.C. 20006-3868 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MARTIN MARlETT A AGGREGATES, 

Respondent 

October 23, 1998 

CIVIL PENALTY PROCEEDING 

Docket No. SE 98-156-M 

A. C. No. 09-00075-05529 

Camak Quarry 

ORDER TO QUASH AND REVOKE 

This case is a petition for the assessment of civil penalties under section 11 0( a) of the 

Act. The hearing is scheduled for October 28, 1998. 

The Solicitor has filed a motion to quash a subpoena that had been issued to produce 

Mitchell Adams at the hearing. The·operalor has filed a motion in opposition. Mr. Adams is 

an MSHA special investigator in training who participated in the investigation of this matter 

for the purpose of determining whether action for individual liability should be brought under 

section 11 0( c). MSHA has decided not to bring a 11 0( c) action. 

On October 13, 1998, I issued an order directing that Mr. Adams appear for the taking 

of a depos~tion. However, in that order I also decided that under Commission precedent 

MSHA did not have to produce the special investigation report which was privileged. And I 

noted that any knowledge of special investigators about specific facts was second hand and 

was available from witnesses closer to the events in question. Finally, I reminded counsel 

that the deliberative process privilege protected the confidentiality of recommendations and 

deliberations made by special investigators. On October 21, 1998, Mr. Adams and Mr. Steve 

Kirkland, the special investigator on the case, were deposed. 

In his motion to quash, the Solicitor advises that Mr. Adams is a special investigator 

in training and that he is scheduled for special training in Denver, Colorado, for the weeks of 

October 26 and November 2. Attached to the motion is a memorandum dated October 21 to 

the Solicitor from Terry E. Phillips, the MSHA supervisory special investigator for the 

Southeastern region. According to Mr. Phillips, the Southeastern region has only one 

qualified special investigator and the shortage of such investigators is a problem in other 

MSHA districts. To address this situation, MSHA has set up the course that Mr. Adams is 

scheduled to attend. Mr. Adams has been in training to become a special investigator and 

this course is the last critical element in his training necessary to authorize him to conduct 

investigations on his own. No other classes of this type are scheduled or even planned by 

MSHA at this time. 

1239 
In response to the motion to quash, the operator represents that Mr. Adams is a necessary 

and critical witne~s for its defense. The operator wishes to have Mr. Adams address the issues 

of high negligence and unwarrantable failure and in this connection states that many questions 

about the accident were asked in the special investigation, but not by the inspectors who issued 

the citations (e.g. who released the brakes of the locomotive and why; and what was the practice 

and rule at the mine regarding the use of radio communications and setting the brakes). 

After carefully considering the motions filed by the parties, I have determined that the 

motion to quash should be granted. The facts involved in the examples given by the 

operator, supra, can better be obtained directly from individuals who have first hand 

knowledge of those matters and who undoubtedly occupy positions of responsibility in the 

operator's own organization. Insofar as Mr. Adams may have a different view of negligence 

than the issuing inspectors, it is I who must make the determinations regarding the existence 

and degree of negligence as well as the propriety of imputation of negligence. The opinions 

of Mr. Adams who participated in a much later investigation undertaken for different 

purposes would be of little help to me in reaching conclusions regarding any facet of the 

negligence issue. In addition, the fact that Mr. Adams has not even completed his training to 

become a special investigator, further reduces the value and relevance of his opinions. 

The foregoing demonstrates sufficient reason to revoke the subpoena so that Mr. Adams may 

proceed with his scheduled training. 29 C.F.R. § 2700.60(c). 

It is ORDERED that the motion to quash be GRANTED and that the subpoena 

previously issued be REVOKED. 

\ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail & Facsimile) 

• 

Leslie John Rodriguez, Esq., Office of the Solicitor, U. S. Department of Labor, 61 Forsyth 

Street, S.W., Room 7T10, Atlanta, GA 30303 

Henry Chajet, Esq., Patton Boggs, L.L.P., 2550 M Street, NW., Washington, DC 20037-1350 

/gl 

1240 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

. · Petitioner 

v. 

UNIQUE ELECTRIC, . 

Respondent 

DENVER. CO 80204-3582 

303-844-3577/FAX 303-844-5268 

October 26, 1998 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 95-333-M 

A.C. No. 04-03425-05503 TIR 

Washington Mine 

ORDER TO SUBMIT INFORMATION 

I issued my decision in this case on April 23, 1997. The Federal Mine Safety and Health 

Review Commission (the "Commission') vacated the $400 penalty I assessed against Unique 

Electric and remanded the case to me for further proceedings consistent with the Commission's 

decision. The Commission vacated the penalty I assessed based on concepts developed in its 

decisions in Sunny Ridge Mining Co., 19 FMSHRC 254,271-72 (February 1997) and Ambrosia 

Coal & Construction Co., 19 FMSHRC 819, 823-24 (May 1997). These decisions discuss how 

penalties should be assessed against agents of corporate mine operators under section 11 0( c) of 

the Federal Mine Safety and Health Act of 1997, 30 U.S.C. § 820(c). The $8,500 penalty in this 

case was proposed by the Secretary under section 11 O(a) of the Mine Act. The Commission held 

that the pres~nt case is "akin to one brought against an indiviqual under section 11 0( c) of the 

Mine Act" because Kim Warnock, the owner of Unique Electric, was self-employed at the time 

the citation was issued. Slip op. at 4. 

In its decision, the Commission directed that I reconsider the penalty taking into 

consideration the six criteria set forth in section 11 O(i) of the Mine Act. 1 With respect to the · 

ability to continue in business criterion, the Commission directed that I consider "whether the 

proposed penalty would affect Warnock's ability to meet his financial obligations." ld With 

1 The criteria are "the [mine] operator's history of previous violations, the appropriateness 

of such penalty to the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and 

the demonstrated good faith of the person charged in attempting to achieve rapid compliance after 

notification of a violation." 30 U.S.C. § 820(i). 

1241 
respect to the size of the business criterion, the relevant inquiry is whether the penalty is 

appropriate in light of the individual's income and net worth. Ambrosia, 19 FMSHRC at 824. 

In Sunny Ridge, the Commission set forth its analysis with respect to penalties brought against 

individuals as follows: -· 

The criteria regarding the effect and appropriateness of a penalty 

can be applied to individuals by analogy, and we find that such an 

approach is in keeping with the deterrent purposes of penalties 

assessed under the Mine Act. In making such findings, judges 

should thus consider such facts as an individual's income and 

family support obligations, the appropriateness of a penalty in light 

of the individual • s job responsibilities, and an individual's ability 

to pay. Similarly,judges should make findings on an individual's 

history of violations and negligence, based on evidence in the 

record on these criteria. Findings on gravity of a violation and 

whether it was abated in good faith can be made on the same 

record evidence .... " 

19 FMSHRC at 272. 

The Commission further analyzed how penalties should be assessed against individuals in 

Wayne Steen, employed by Ambrosia Coal & Construction Co., 20 FMSHRC 381,385-86 (April 

1998). The Commission stated that "our judges must engage in a two-step analysis ... " as 

follows: ld 

First, they must determine [an individual's] household financial 

condition. Then they must make findings on the ... "size" and 

· "ability to continue in business" criteria on the basis of the 

[individual's] share of his or her household's net worth, income, 

and ·expenses. 

In order to perform this analysis, Mr. Warnock shall provide me with the following 

information on or before November 17, 1998: 

1. A statement ofMr. Warnock's income in 1997. The statement should indicate 

whether there has been a major change in income since December 1997. 

2. A statement of Mr. Warnock's net worth and financial obligations. This information 

should be in the form of a balance sheet showing his major assets and liabilities. The statement 

should indicate which assets are held jointly with his wife or any other individual and which 

liabilities are joint obligations. Mr. Warnock shall also describe his "family support obligations" 

and his share of his "household's net worth, income and expenses." 

1242 
3. Any argument that Mr. Warnock wishes to make concerning the facts and issues 

involved in this case. 

A copy of these statements should also be sent to Ms. Cop lick at the Department of 

Labor. In conjunction with information request No. 1, Mr. Warnock shall also send me a copy of 

his 1997 Federal Tax return. He need not send the tax return to Ms. Coplick. I will place my 

copy under seal so that it is not available to the public. 

The Secretary of Labor shall file any response to Mr. Warnock's filing on or before 

December 4, 1998. 

. . 

The parties should understand that, based on my review of the record in this proceeding 

and the information provided by Mr. Warnock, the penalty I assess may be higher, lower, or the 

same as the $400 penalty I assessed in my April23, 1997, decision. The parties are encouraged 

to confer in an attempt to reach agreement on a penalty or to enter into stipulations regarding the 

penalty criteria or the fmancial information submitted by Mr. Warnock. If the parties wish to 

hold a conference call with me to discuss these issues, they are invited to do so. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St., Suite 

1110, San Francisco, CA 94105-2999 

Mr. Kim Warnock, 1136 Cedar Street, Shasta Lake City, CA 96019 

RWM 

1243 
1244 ~U.S. OOVEJtNMEm' PR1N11NG OFFICB:l998-4H-620i9o«l0