COMMISSION DECISIONS AND ORDERS 

12-02-92 Ford Construction Company 

12-07-92 Gatliff Coal Company, Inc. 

DECEMBER 1992 

12-17-92 Sec.labor on behalf of Joseph A. Smith v. Helen Mining Co. 

ADMINISTRATIVE LAW JUDGE DECISIONS 

12-01-92 Jamboree Coals, Inc. 

12-01-92 Solid Mining Company, Inc. 

12-01-92 M P & M Coal Company, Inc. 

12-01-92 Vincent Braithwaite v. Tri-Star Mining, Inc. 

12-02-92 Sec. Labor on behalf of Paul H. Brooks v. 

Ronald B. Snyder & R.B.S. Inc. 

12-07-92 Wedron Silica Company 

12-07-92 Keystone Coal Mining Corp. 

12-07-92 Helen Mining Company 

12-08-92 J. Bradley Miller v. White's Pelletizing Co. 

12-08-92 Jim Walter Resources, Inc. 

12-08-92 Drummond Company, Inc. 

12-11-92 Sec. Labor on behalf of Ralph J. Thorn v. Island Creek Coal Co. 

12-11-9 2 Brown Brothers Sand Company 

12-14-92 Leadville Mining & Milling Corp. 

12-15-92 Waste Coal Management 

12-15-92 Consolidation Coal Company 

12-18-92 * Black Widow Collieries Ltd. 

12-18-92* Ambrose Branch Coal Company 

12-18-92" Carol Coal Corporation 

12-18-92" L & L Energy of Hurley, Inc. 

12-18-9r Briarfield Coal Corporation 

12-22-92 lucky L & L Coal Company, Inc. 

12-22-92 Good Times Mining, Inc. 

2-23-92 Ten-A Coal Company 

'i 2-23-92 Dixie Mining Company, inc. 

'12-28-92 Sec. Labor on behalf of Donald Bowling v. Perry Transport, etc. 

12-28-92 !Rhone-Poulenc of Wyoming Company 

12-29-92 Edd Potter Coal Company 

12-29-92 Red Dog Coal Corporation 

12-29-92 Davis A. Shoulders employed by Pyro Mining Company 

12-29-92 Lucky Branch Coal Company, inc. 

12-29-92 Allan Goode employed by Consolidation Coal Co. 

12-30-92 Homestake Mining Company 

12-30-92 Shady Lane Coal Corporation 

12-30-92 Sunset Land & Coal Company 

12-30-92 BR D Coal Company, inc. 

12-30-92 American Mine Services, Inc. 

ADMINISTRATIVE LAW JUDGE ORDERS 

12-04-92 Consolidation Coal Company 

12-09-92 Elmer Darrell Burgan v. Harlan Cumberland Coal Co. 

12-30-92 Pittsburg & Midway Coal Mining Co. 

•these cases were originally issued as November 16, 1992 

they should read December 16, 1992 

WEST 90-346 

KENT 90-100 

PENN 92-57-D 

KENT 91-1175 

VA 91-254-R 

VA 91-535 

WEVA 91-2050-0 

WEVA 93-31-D 

LAKE 92-267-M 

PENN 91-1480-R 

PENN 92-704 

PENN 92-368-DM 

SE 92-226 

SE 92-248 

WEVA 92-1010-D 

SE 92-84-M 

WEST 92-124-M 

KENT 91-75 

PENN 92-739-R 

KENT 92-110 

VA 91-453 

VA 91-583 

VA 91-460 

VA 91-495 

VA 91-458 

VA 91-462 

WEVA 89-274 

VA 92-129 

KENT 92-1052-D 

WEST 92-519-M 

KENT 91-680-R 

KENT 91-698-R 

KENT 92-17 

KENT 92-231 

WEVA 91-2096 

CENT 91-217-RM 

VA 91-367-R 

VA 91-386-R 

VA 91-482 

WEST 91-563 

WEVA 92-798 

KENT 92-915-D 

KENT 93-181-R 

Pg. 1975" 

Pg. 1982 

Pg. 1993 

Pg. 1995 

Pg. 1997 

Pg. 1999 

Pg. 2001 

Pg. 2004 

Pg. 2015 

Pg. 2017 

Pg. 2031 

Pg. 2035 

Pg. 2036 

Pg. 2039 

Pg. 2044 

Pg. 2047 

Pg. 2053 

Pg. 2065 

Pg. 2066 

Pg. 2070 

Pg. 2072 

Pg. 2073 

Pg. 2075 

Pg. 2077 

Pg. 2079 

Pg. 2081 

Pg. 2083 

Pg. 2085 

Pg. 2086 

Pg. 2090 

Pg. 2095 

Pg. 2097 

Pg. 2099 

Pg. 2105 

Pg. 2106 

Pg. 2113 

Pg.2117 

Pg. 2119 

Pg. 2121 

Pg. 2123 

Pg. 2133 

Pg. 2135 

Pg. 2136 

DECEMBER 1992 

Review was granted in the following cases during the month of December: 

Secretary of Labor, MSHA v. Wyoming Fuel Company, Docket Nos. WEST 91-598-R, WEST 

92-335. (Judge Morris, October 28, 1992). 

Secretary of Labor, MSHA v. Paul Shirel and Donald Guess employed by Pyre Mining 

Company, Docket Nos. KENT 92-73, KENT 91-1340. (Judge Melick, November 17, 1992). 

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

Roy Lee Stroud, v. CBM Mining, Inc., Roy Gollier and James Booth, Docket No. KENT 91-986-

D. (Judge Maurer, October 23, 1992). 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON', D.C. 20006 

Deceraber 2, 1992 

SECRETARY OF IABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. Docket No. WEST 90-346-M 

FORD CONSTRUCTION COMPANY 

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

DECISION 

BY THE COMMISSION: 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), and 

involves the validity of two citations issued by the Secretary of Labor to 

Ford Construction Company ("Ford") for alleged violations of 30 C.F.R. 

§ 56.14130(g), 1 which requires the wearing of seat belts. Commission Administrative Law Judge John J. Morris vacated the two citations. 14 FMSHRC 373. 

(Februar~ 1992)(ALJ). The Secretary filed a timely petition for discretionary 

review. For the reasons set forth below, we reverse the judge's decision. 

L 

Factual and Procedural Background 

Ford provides earth moving and construction contract services to mining 

companies. In this case, Ford was in the process of preparing a settling pond 

for Meridian Gold Company. During an inspection, Jaime Alvarez, an inspector 

with the Secretary of Labor's Mine Safety and Health Administration ("MSHA"), 

observed the operator of a large piece of earth moving equipment, a 637D 

Caterpillar scraper, operating the equipment without wearing the seat belt 

installed in the equipment. He issued a citation pursuant to section 104(a) 

of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of 30 C.F.R. 

1 Section 56.14130(g) provides: 

Wearing Seat belts. Seat belts shall be worn by the 

equipment operator except that when operating graders 

from a standing position, the grader operator shall wear 

safety lines and a harness in place of a seat belt. 

1975 
§ 56.14130(g), and designated it as being of a significant and substantial 

nature ("S&Sll). 2 That citation provided: 

The operator of the CAT-637-D (Co. No. 8-7) scraper 

was observed driving this vehicle on steep up and down 

grades on a bumpy roadway which would easily cause him 

to be knocked or bumped out of the driver's seat 

because he was not wearing.his seat belt as required. 

During that same inspection, Inspector Alvarez observed the operator of 

a D8H Caterpillar bulldozer operating the equipment without wearing the seat 

belt. Accordingly, he issued another citation pursuant to section 104(a) of 

the Mine Act alleging a second violation of 30 C.F.R. § 56.14130(g). 

Inspector Alvarez did not designate this citation as being S&S. 

The judge vacated the scraper citation based on his determination that 

section 56.14130(a) did not require seat belts to be installed in the cited 

equipment. 3 14 FMSHRC at 378-80. The judge appeared to compare the 

terminology used in the standard with the definition of "scraper" in the 

Bureau of Mines, U.S. Department of the Interior, Dictionary of Mining. 

Minerals and Related Terms at 971 (1968) ("DMMRT11 ). Id. The judge determined 

that, although it "may well be that.the term 'scraper' fits within one of the 

six paragraphs enumerated in section 56.14130(a)," the record is "silent on 

that issue" and he concluded that the citation should be vacated. 14 FMSHRC 

at 380. 

The judge, similarly, vacated the bulldozer citation based on his 

determination that the seat belt standard did not apply to the cited 

equipment. 14 FMSHRC at 382-83. The judge stated that 11 section 56.14130(a) 

is equipment specific as to what pieces and types of equipment are subject to 

the requirements" and that "[d]ozers are not included in the specific list of 

types of equipment covered by the seat belt requirements." 14 FMSHRC at 383. 

2 The S&S terminology is taken from section 104(d)(l) of the Act, 30 

U.S.C. § 814(d)(l), which distinguishes as more serious in nature any violation 

that "could significantly and substantially contribute to the cause and effect 

of a mine safety or health hazard .... " 

3 Section 56.14130(a) provides: 

Equipment included. Roll-over protective structures 

(ROPS) and seat belts shall be installed on--

(1) Crawler tractors and crawler loaders; 

(2) Graders; 

(3) Wheel loaders and wheel tractors; 

(4) The tractor portion of semi-mounted 

scrapers, dumpers, water wagons, bottom-dump 

wagons, rear-dump wagons, and towed fifth wheel 

attachments; 

(5) Skid-steer loaders; and 

(6) Agricultural tractors. 

1976 
The judge concluded that, because the standard did not require the 

installation of seat belts on either piece of equipment, the citations issued 

for the failure to wear seat belts could not stand. 

The Commission granted review of the Secretary's petition for 

discretionary review, which challenges the judge's factual conclusions that 

the scraper and dozer were not covered by the requirements of 30 C.F.R. 

§ 56.14130, as being without substantial evidence in the record. She also 

asserts that the plain language of the standard includes the scraper and dozer 

within its coverage and that the preamble to the standard supports her 

position. 

II. 

Disposition of Issues 

The judge correctly determined that subsection (g) of section 56.14130, 

requiring that equipment operators wear seat belts, is only applicable if 

subsection (a) of the standard requires the installation of seat belts on the 

particular type of equipment being operated. Thus, in order to establish a 

violation of subsection (g), the Secretary must show both that a seat belt was 

required to be installed on the equipment and that the operator was not 

wearing the seat belt. 

A. The Scraper 

The judge stated in his decision that Ford may have been required to 

install seat belts on the scraper. Nonetheless, he vacated the citation based 

on his determination that the record did not adequately demonstrate that the 

term "scraper" was included within one of the categories set forth in section 

56.14130(a), requiring the installation of seat belts. The judge reasoned 

that bec~use the cited equipment was not expressly listed in subsection (a), 

the standard requiring the wearing of seat belts was not applicable. We agree 

with the Secretary that the judge misconstrued the meaning and scope of the 

standard. 

Subsection (a)(4) of section 56.14130 provides that seat belts shall be 

installed on the "tractor portion of semi-mounted scrapers .... " A tractor is 

defined as a "self-propelled vehicle which may be mounted on crawler tracks, 

on wheels with large pneumatic tires, or on a mixture of both." DMMRT at 

1156. A "scraper" is defined as a: 

steel surface vehicle, 6 to 12 cubic 

yard capacity, mounted on large rubber-tired wheels. 

The bottom is fitted with a cutting blade which, when 

lowered, is dragged through the soil. When full, the 

scraper is transported to the dumping point ... 

DMMRT at 971 (Emphasis added). As the definition makes clear, scrapers are 

tractor-driven: Considering these definitions, it is clear that the language 

of subsection (a)(4) describes a scraper, as that term is ordinarily used. 

The designation "semi-mounted scraper" does not denote a unique classification 

1977 
of "scraper" but simply describes the ordinary configuration of a scraper, 

i.e. two components, tractor and bowl. 4 Thus, scrapers, more particularly 

the tractor portion where the operator sits, are required to have seat belts. 

The regulatory history of this standard provides added support for the 

Secretary's position. The predecessor to the current seat belt standard 

described scrapers as "self-propelled scrapers." In 1988, MSHA issued new 

standards for machinery and equipment at surface metal and nonmetal mines. 

Department of Labor, Mine Safety and Health Administration, "Safety Standards 

for Loading, Hauling, and Dumping and Machinery and Equipment at Metal and 

Nonmetal Mines," 53 Fed. Reg. 32496 (August 25, 1988). The preamble to the 

new standards expressed a clear intent to include scrapers within its 

coverage. 5 It stated that the different terminology used in the new standard 

did not narrow the breadth of the standard and that "the final standard 

retain[ ed] the existing standard's scope." 53 Fed. Reg. at 32511. A table 

was included which provided, in relevant part, that the term "tractor portion 

of semi-mounted scrapers" in the new regulation was to have the same meaning 

as did the term "self-propelled scrapers" used in the prior regulation. Id. 

It is undisputed that the cited scraper was self-propelled. Thus, while new 

terms were employed to describe a scraper, it remained within the standard's 

coverage. 

The record in this case contains sufficient evidence to establish that 

the cited equipment fits within section 56.14130(a)(4). The inspector's 

testimony concerning the size of the cited equipment, its function and its 

ability to articulate describes the type of equipment covered by the standard. 

Tr. 12 16. Thus, the judge failed to properly construe the scope and meaning 

of the standard and, therefore, erred in failing to recognize the cited 

equipment as being within the list of equipment requiring seat belts. The 

judge's finding that seat belts were not required in the scraper is not 

supported by substantial evidence. Since there is no dispute that the 

operator of the cited scraper was not wearing his seat belt, we reverse the 

judge's decision to vacate the citation. 6 

L, The bowl, often called the pan, scrapes the ground and scoops up 

overburden or other material. Missouri Rock, 11FMSHRC136 (February 1989). 

5 It would have been helpful to the judge for the Secretary to have 

placed in the record the relevant portions of the preamble to the Federal 

Register notice since that information is not reprinted in the Code of Federal 

Regulations. 

6 Concern for safety alone should have resulted in use of the seat 

belt. 

1978 
B. The Bulldozer 

The judge based his decision to vacate the second citation on the ground 

that the record did not adequately demonstrate that the term "dozer" was 

included within one of the categories set forth in subsection (a) of the cited 

standard. 14 FMSHRC at 383. He reasoned that, because the cited equipment 

did not require seat belt installation, there was no requirement to wear seat 

belts. We believe, as in the case of the scraper, that the judge misconstrued 

the meaning and scope of the standard. 

Although the language of the standard itself does not include the 

specific term "dozer" or "bulldozer" in the six categories of equipment 

requiring the installation of seat belts, subsection (a)(l) provides that seat 

belts shall be installed on "crawler tractors and crawler loaders." A 

"bulldozer" is defined as a "tractor on the front end of which is mounted a 

vertically curved steel blade .... " DMMRT at 150. A "crawler" is defined as: 

One of a pair of an endless chain of plates driven by 

sprockets and used instead of wheels, by certain power 

shovels, tractors, bulldozers, drilling machines, 

etc., as a means of propulsion. Also any machine 

mounted on such tracks., . 

DMMRT at 275 (emphasis added). It is clear that bulldozers are "crawler 

tractors" and are within the scope of the standard requiring the installation 

of seat belts. 

The Secretary's position is again further supported by reference to the 

regulatory history. The preamble to the standard stated that the new 

terminology used in subsection (a) did not limit the breadth of the standard 

but rather retained "the existing standard's scope." 53 Fed. Reg. 32511 

(1988). ·As in the case of the scraper, a table in the preamble provided that 

the terms crawler tractors and crawler loaders in the new standard were to 

have the same meaning as the terms used in the prior standard, which 

specifically included the term "dozer." Id. Thus, while new terms were 

employed to describe a dozer, such equipment clearly remained within the 

standard's coverage. 

The record contains sufficient evidence to establish that the cited 

dozer was adequately described to place it within the coverage of the 

standard. The inspector's testimony concerning the equipment's size and its 

function together with his testimony as to its common names, "caterpillar," 

and "dozer," provide a sufficiently specific description to place it within 

the scope of the standard. Tr. 12-13, 48-50. Thus, the judge failed to 

properly construe the scope and meaning of the standard and, therefore, erred 

in failing to recognize the cited equipment as being within the list of 

equipment requiring seat belts. The judge's finding that dozers are not 

included in the categories of equipment that require seat belts is not 

supported by substantial evidence. Since it is undisputed that the operator 

of the cited dozer was not wearing his seat belt, we reverse the judge's 

decision to vacate the citation. 

1979 
III. 

Conclusion 

For the foregoing reasons, we reverse that part of the judge's decision 

vacating citation Nos. 3458357 and 3458425, issued because equipment operators 

failed to wear seat belts. We remand this proceeding to the judge to 

determine whether the scraper citation was properly designated as being S&S 

and to assess civil penalties for both citations . 

..;;; ? 

Arlene Holen, Chairman 

L. Clair Nelson, Commissioner 

1980 
Distribution 

Tina Gorman, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Robert D. Peterson, Esq. 

3300 Sunset Boulevard, Suite 110 

Rocklin, California 95677 

Administrative Law Judge John J. Morris 

Federal Mine Safety & Health Review Commission 

280 Federal Bldg. 

1244 Speer Boulevard 

Denver, Colorado 80204 

1981 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 7, 1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) Docket Nos. KENT 90-100 

KENT 90-215 

v. KENT 89-242-R through 

KENT 89-252-R 

GATLIFF COAL COMPANY, INC. 

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

DECISION 

BY: Holen, Chairman; Backley, and Doyle, Commissioners 

This consolidated contest and civil penalty proceeding, which arises 

under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et .§..fill.. 

(1988)(the "Mine Act" or "Act"), involves the emergency communication standard 

set forth at 30 C.F.R. § 77.1701. 1 This matter is before the Com.mission for 

a second time. The Commission's initial decision reversed the administrative 

law judge's decision and held that the standard had been violated. 13 FMSHRC 

1370 (September 1991). On remand, Commission Administrative Law Judge Gary 

Melick determined that the violation was neither significant and substantial 

l The standard provides: 

Section 77.1701 Emergency communications; requirements. 

(a) Each operator of a surface coal mine shall 

establish and maintain a communication system from the 

mine to the nearest point of medical assistance for 

use in an emergency. 

(b) The emergency communication system required to 

be maintained under paragraph (a) of this section may 

be established by telephone or radio transmission or 

by any other means of prompt communication to any 

facility (for example, the local sheriff, the State 

highway patrol, or local hospital) which has available 

the means of communication with the person or persons 

providing emergency medical assistance or transportation in accordance with the provisions of 

paragraph (a) of this section. 

1982 
("S&S") nor an unwarrantable failure to comply.z 13 FMSHRC 1641, 1647 

(October 1991). The Secretary of Labor timely challenged those determinations 

and the Commission granted review. For the reasons that follow, we reverse 

the judge's finding that the violation was not S&S, affirm that the violation 

was not an unwarrantable failure and remand for reassessment of an appropriate 

civil penalty. 

I. 

Factual Background and Procedural History 

Gatliff Coal Company, Inc. ("Gatliff,.) owns and operates a surface coal 

mine, known as Gatliff No. 1, Job 75, in Whitley County, Kentucky. On August 

1, 1989, a truck driven by Gatliff employee Boyd Fuson went off an elevated 

roadway on the mine property and tumbled down a 120 foot embankment. Two 

Gatliff employees drove from the mine property to the nearest telephone to 

summon help. Fuson died as a consequence of the accident. 

Because there was no company radio at Job 75 at the time of the 

accident, the Mine Safety and Health Administration (MSHA) issued Gatliff a 

section 104(d)(l) order charging a violation of 30 C.F.R. § 77.1701. 

Gatliff typically maintains three company radios at the mine site. The 

radios are two-way 40 watt radios with sufficient range to reach the Gatliff 

mine office and are located in the foreman's truck, the mechanic's truck and 

the lube truck. Tr. 151. Gatliff's standard emergency notification procedure 

consists of communication via the two-way radios back to the mine office, 

where there is a telephone. On the night of the accident, however, no company 

radios were on the job site. Tr. 156. 

Before the judge, Gatliff asserted that, although no two-way radio was 

present at Job 75 at the time of the accident, a CB radio was present. 

Gatliff argued that use of the CB radio would have enabled the miners to make 

contact with a nearby Gatliff mine site (Job 74) that did have such a two-way 

radio on its lube truck. The judge found that the CB radio constituted an 

"alternate" emergency communication system. 13 FMSHRC 368. The Commission 

rejected that conclusion: 

The CB system was undeniably a voluntary system 

adopted by the miners utilizing their personal CB 

radios Tr. 54, 154, 162, 219. The operator 

initially introduced CBs but effectively abandoned 

2 The S&S terminology is taken from section 104(d)(l) of the Act, 30 

U.S.C. § 814(d)(l), which, in pertinent part, distinguishes as more serious in 

nature any violation that "could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard .... " The 

unwarrantable failure terminology is also taken from section 104(d)(l) of the 

Act, which, in pertinent part, distinguishes those violations of mandatory health 

or safety standards "caused by an unwarrantable failure of [an] operator to 

comply with such mandatory health or safety standards .... " 

19 83 
their use in favor of two-way radios. Tr. 219. The 

operator did not enforce the use of CBs and there is 

no evidence that the operator told employees that the 

CB system was an alternate emergency system.... The 

fact that the CBs were the miners' personally owned 

equipment, not Gatliff's, and that miners were free to 

decide whether to bring CBs to work, is also 

inconsistent with the standard's requirement that the 

emergency communication system be operator established 

and maintained. That the operator knew that its 

employees were routinely using CBs, did not disapprove 

of their use, and aided this practice to the extent of 

providing cable and antennae for them does not amount 

to sufficient involvement to constitute operator 

establishment and maintenance of the system . 

. . . [B]ecause the CB system was neither operator 

established, nor operator maintained, it did not 

satisfy the requirements of section 77.1701. 

13 FMSHRC 1375. 

Upon remand, the judge determined that the violation was not S&S and 

that it did not result from the operator's unwarrantable failure. 

II. 

Disposition of Issues 

A. Whether the violation was significant and substantial 

The Commission established its test for determining whether a violation 

is significant and substantial in Mathies Coal Co., 6 FMSHRC 1 (1984). There 

the Commission set forth the elements the Secretary must prove to demonstrate 

that a violation is significant and substantial: 

at 3-4. 

In order to establish that a violation of a 

mandatory safety standard is significant and 

substantial ... 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. 

The judge, after setting forth the Commission's Mathies test for 

evaluating whether a violation is significant and substantial, focused his 

analysis upon the third element of the test and the Commission's decision in 

1984 
U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). In addressing 

the likelihood of injury in terms of continued mining operations, he stated: 

Ordinarily, according to the undisputed 

evidence, Gatliff maintains as its standard operating 

procedures, three 40-watt two way radios at each mine 

site sufficient to call the mine office where there is 

a telephone. It is further undisputed that these 

communication systems would meet the cited regulatory 

requirements. On the night at issue however, for 

reasons not fully explained, none of the three 

vehicles having such radios was at this particular 

location at the mine. It may reasonably be inferred, 

therefore, that the absence of such a radio was an 

aberrant situation and would not ordinarily have 

existed under normal mining operations. 

13 FMSHRC 1647. 

The judge also relied upon the presence of a CB radio at the mine site: 

It is also undisputed that alternative means of 

communication was available at the time at issue from 

the mine to the nearest point of medical assistance in 

the event of an emergency. This system was provided 

by CB radio and two-way radio on the lube truck to the 

mine office. Under all the circumstances, I do not 

find that the violation was "significant and 

substantial" or of high gravity. 

The Secretary contends that the judge erred in his S&S analysis (1) by 

factoring into his conclusion that the absence of the two-way radio was an 

aberrant situation that would not ordinarily have existed under no~mal mining 

operations, (2) by holding that the violation would not continue into the 

future, and (3) by relying upon the presence of the CB radio as an available 

alternative means of communication in the event of an emergency. Sec. Br. at 

6, B. For the reasons stated below, we agree that the judge erred in his 

determination that the violation was not S&S. 3 

3 We note that the Secretary also urged that the judge 1 s · non S&S 

finding should be reversed on the basis that the emergency communication standard 

is one of a class of standards that are applicable only when an underlying 

emergency (such as the truck accident in this instance) has already occurred and 

therefore, for such standards, the occurrence of the underlying emergency should 

be presumed. This argument was not presented below and consequently the 

administrative law judge was not afforded an opportunity to pass on it. For the 

reasons stated in Beech Fork Processin~, Inc., 14 FMSHRC 1316 (August 1992) we 

do not consider this aspect of the Secretary's challenge. See also section 

(continued ... ) 

1985 
In U.S. Steel, the Commission said: 

a determination of "significant and substantial" must 

be made at the time the citation is issued (without 

any assumptions as to abatement), but in the context 

of "continued normal mining operations." 

6 FMSHRC at 1574. 

The Mathies test requires evaluation of the violation at the time of 

citation, including an examination of the risk of serious injury, given the 

presence of the violative condition in normal mining operations. In contrast, 

the judge determined that under continued normal operations the absence of the 

two-way radio was an aberrant situation. 13 FMSHRC at 1647. He misapplied 

the third element of the Mathies test in inferring that the violative 

condition would cease. Accordingly, the judge erred. 

In his S&S analysis the judge also relied upon the presence of an 

employee-owned CB radio at the mine site on the evening of the accident. The 

judge characterized the radio as an: 

... alternative means O'f communication [that] was 

available at the time at issue from the mine to the 

nearest point of medical assistance in the event of an 

emergency. 

13 FMSHRC at 1647. 

As the Commission stated in its earlier decision, use of CB radios was a 

voluntary system adopted by the miners utilizing their personally owned 

radios. There was no evidence in the record that the operator instructed 

employees to consider CB radios an alternate emergency communication system, 

nor were the miners trained in the use of CB radios as an emergency 

communication system. We noted further that the miners were free to decide 

whether to bring CBs to work and, thus, the CBs did not meet the standard's 

requirement that the emergency communication system be operator established 

and maintained. 13 FMSHRC at 1375. The miners did not use the CB at the time 

of the emergency, but instead drove off the mine property to reach a 

telephone. The Commission having concluded that the CB radio was not an 

operator established and maintained emergency communication system, it was 

error for the judge to consider the CB radio to be an alternate emergency 

system. 

Applying the Mathies analysis to these facts, we conclude that the 

violation was significant and substantial. First, there was a violation of 

3 ( ••• continued) 

113(d)(2)(A)(iii) of the Act, 30 U.S.C. § 823(d)(A)(iii), which provides, in 

pertinent part, that "[e]xcept for good cause shown, no assignment of error by 

any party shall rely on any question of fact or law upon which the administrative 

law judge had not been afforded an opportunity to pass." 

1986 
30 C.F.R. § 77.1701; no operator established two-way radio was present at the 

mine site. Second, there was a discrete safety hazard or measure of danger to 

safety created by the violation; the absence of the two-way radio created a 

delay in responding to the accident because miners had to leave the property 

to seek help. The record demonstrates that the third and fourth elements, a 

reasonable likelihood that the hazard contributed to would result in an injury 

and a reasonable likelihood that the injury would be of a reasonably serious 

nature, were established. Accordingly, we hold that, under these 

circumstances, the violation was significant and substantial. 

B. Whether the violation resulted from the operator's 

unwarrantable failure 

The Commission has explained that unwarrantable failure is: 

aggravated conduct constituting more than ordinary 

negligence by a mine operator in relation to a 

violation of the Act. Emery Mining Corp., 9 FMSHRC 

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

9 FMSHRC 2007, 2010 (December 1987). This 

determination was derived, in part, from the ordinary 

meaning of the term "unwarrantable failure" ("not 

justifiable" or "inexcusable"), "failure" ("neglect of 

an assigned, expected or appropriate action"), and 

"negligence" ("the failure to use such care as a 

reasonably prudent and careful person would use, 

characterized by "inadvertence," "thoughtlessness," 

and "inattention"). Emery, supra. 9 FMSHRC at 2001. 

This determination was also based on the purpose of 

unwarrantable failure sanctions in the Mine Act, the 

Act's legislative history, and on judicial precedent. 

Drummond Co., Inc., 13 FMSHRG 1362, 1366-1367 (September 1991). 

In address whether the violation was unwarrantable, the judge stated: 

[I]n light of the evidence that ordinarily three 

two-way radios are present at the mine and that the 

absence of a radio on the night at issue was anything 

other than the result of inattention or inadvertence, 

and that the miners were not left without a means of 

emergency radio communication, I cannot find that the 

violation was the result of "unwarrantable failure," 

or more than simple negligence. 

13 FMSHRC at 1647. 

The Secretary, citing Emery, 9 FMSHRC 1997, 2003-04, asserts that 

conduct constitutes unwarrantable failure if the operator "knew or should have 

known" that the conduct would result in a violation. Sec. Br. at 11. Noting 

that the Commission earlier held that the two-way radio was the only 

1987 
established and maintained means of emergency communication, the Secretary 

contends that: 

the foreman, who had full management responsibility for overseeing events at the site, 'knew or 

should have known' that his conduct would violate [the 

standard] and would leave the miners with no adequate 

means of summoning assistance if, as indeed happened, 

one of them suffered a serious injury. 

Sec. Br. at 11. On this basis the Secretary asserts that the foreman's 

removal of the two-way radio from the mine site was unwarrantable. Id. at 12. 

Gatliff, like the Secretary, points to Emery for its authority. The 

operator takes issue with what it views as the Secretary's out-of-context use 

of the "should have known" language in Emery, noting that the Secretary's 

position would equate unwarrantable failure with ordinary negligence. Gatliff 

notes that in Emery the Commission distanced itself from the interpretation 

urged by the Secretary. Gatliff Br. at 6, citin~ Emery, 9 FMSHRG at 2004. 

The judge erred in consideri~g the presence of a miner's CB radio as an 

alternative means of emergency communication. Consequently, he also erred in 

viewing the GB radio as a mitigating factor in evaluating whether the 

violation was unwarrantable. Nonetheless, the judge's finding that the 

absence of the two-way radio was attributable to ordinary negligence is 

supported by the record. 

While it is true that the foreman drove off the mine property in the 

truck with the two-way radio in it, there is no evidence in the record that 

this was due to anything beyond inadvertence. Indeed, at trial no evidence 

was elicited on the foreman's state of mind, or on the custom, practice or 

circumstances surrounding the removal of the two-way radio from the mine site. 

Tr. 148-156. 

Although the foreman's actions may have been negligent, the Commission 

has explained that negligence and unwarrantable failure are not synonymous 

terms: 

The terms "unwarrantable failure" and 

"negligence" are distinguished in the Mine Act. A 

finding by an inspector that a violation has been 

caused by an operator's unwarrantable failure to 

comply with a mandatory health or safety standard may 

trigger the increasingly severe enforcement sanctions 

of section 104(d). 30 U.S.G. § 814(d). Negligence, 

on the other hand, is one of the criteria that the 

Secretary and the Commission must consider in 

proposing and assessing, respectively, a civil penalty 

for a violation of the Act or of a mandatory health or 

safety standard. 30 U.S.C. §§ 815(b)(l)(B) & 820(i). 

Although the same or similar factual circumstances may 

be included in the Commission's consideration of 

unwarrantable failure and negligence, the concepts are 

1988 
distinct. See Ouinland Coals. Inc., 7 FMSHRC 1117, 

1122 (August 1985); Black Diamond Coal Co., 9 FMSHRC 

1614, 1622 (September 1987). Nevertheless, as 

explained in Emery, [9 FMSHRC 1997] and Youghiogheny & 

Ohio, [9 FMSHRC 2007] aggravated conduct constitutes 

more than ordinary negligence for purposes of a 

special finding of unwarrantable failure. "Highly 

negligent" conduct involves more than ordinary 

negligence and would appear, on its face, to suggest 

an unwarrantable failure. Thus, if an operator has 

acted in a highly negligent manner with respect to a 

violation, that suggests an aggravated lack of care 

that is more than ordinary negligence. 

Eastern Associated Coal Corp., 13 FMSHRC 178, 186 (February 1991). 

There is substantial evidence in the record to support the judge's 

conclusion that the foreman's actions constituted no more than ordinary 

negligence. Thus, we affirm that the violation was not unwar~antable. 

C. Civil Penalty 

Following the Commission's earlier remand, the judge, after finding the 

violation to be neither S&S nor unwarrantable, modified the order to a section 

104(a) citation and assessed a civil penalty of $50. Although we have 

affirmed the judge's holding that the violation was not unwarrantable, we have 

reversed his finding as to S&S. Accordingly, this matter is remanded for 

reassessment of the civil penalty in light of our determination that the 

violation was S&S. 

1989 
III. 

Conclusion 

For the foregoing reasons, we reverse the judge's finding that Gatliff's 

violation of 30 C.F.R. § 77.1701 was not significant and substantial, affirm 

the judge's determination that the violation was not unwarrantable, and remand 

for the assessment of an appropriate civil penalty. 

Arlene Holen, Chairman 

Richard V. Backley, Commissioner 

... 

Jzyyce:DOile, 

~{/~ comilliSS=ner 

1990 
Commissioner Nelson, concurring in part and dissenting in part: 

I must dissent solely with regard to the majority's affirmation of the 

AL.J's determination that the violation did not constitute unwarrantable 

failure. Such affirmation seemingly results more from concern with fine 

points in preceding decisions than with concern for basic fundamentals 

expressed in the Mine Act with regard to miner safety. 

Our governing statute states at the outset (in Section 2(d) and (e)) 

that the operator of a mine -- with the assistance of the miners -- has 

primary responsibility to prevent the existence of unsafe conditions and 

practices in the mine. Section 2(g) authorizes the Secretary of Labor to 

promulgate mandatory safety standards to protect the safety of every miner. 

Here we have a mandatory safety standard requiring the operator to 

establish and maintain a communication system for use in an emergency. The 

essential component of the communication system established for use at this 

mine site, i.e., a two-way radio, was removed from the site by a foreman and 

never returned during some nine hours prior to the occurrence of an accident 

resulting in a fatality. 

The majority observes that evidence in the record indicates only that 

the foreman acted inadvertently in removing the two-way radio from the mine 

site where the accident occurred nine hours later. (In fact, it is abundantly 

clear that the absence of a two-way radio persisted through one shift and into 

another shift, unless the shift periods exceeded eight hours.) 

My observation is to the effect that the record clearly demonstrates 

highly negligent conduct on the part of the mine operator in failing to 

provide requisite attention to the training of supervisory employees in order 

to assure compliance with an extremely important safety standard requiring the 

presence of an emergency communication system at this mine site. The absence 

of a fundamentally essential component of the requisite emergency 

communication system for a period of at least nine hours sufficiently 

establishes, in my view, highly negligent conduct constituting unwarrantable 

failure on the part of this operator. 

1991 
Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Robert I. Cusick, 

Frank F. Chuppe, Esq. 

Wyatt, Tarrant & Combs 

2600 Citizens Plaza 

Louisville, KY 40202 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, Suite 1000 

Falls Church, Virginia 22041 

1992 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K Street NW, 6th Floor 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Washington, D.C. 20006 

December 17, 1992 

on behalf of JOSEPH A. SMITH 

v. Docket Nos. PENN 92-57-D 

PENN 92-58-D 

THE HELEN MINING COMPANY 

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

ORDER 

BY THE COMMISSION: 

On November 18, 1992, Helen Mining Company ("Helen") filed an 

Application for Stay ("Application") of Administrative Law Judge Roy J. 

Maurer's September 17, 1992, assessment of a civil penalty and award of back 

pay in this matter. 14 FMSHRC 1626, 1645 (September 1992)(ALJ). 1 In the 

alternative, Helen requests that the Commission permit it to deposit the civil 

penalty and back pay award into an interest-bearing escrow account. Helen 

stated in its Application that it intended to appeal the judge's decision to 

the United States Court of Appeals for the District of Columbia Circuit2 • It 

requests that the stay or escrow arrangement remain in effect until such time 

as a final appellate determination in these proceedings has been reached. 

The Secretary responded to the Application on November 23, 1992. She 

states that she does not oppose the escrow relief requested by Helen so long 

as Helen deposits the back pay award in the amount of $45,450.37, plus 

interest due on that amount under the terms of the judge's order, and the 

civil penalty in the amount of $10,000 in bona fide interest-bearing escrow 

accounts. The Secretary further requests that, in the event the judge's order 

is upheld on appeal, any applicable pre- and/or post-judgment interest be 

included in the awards to Complainant Joseph A. Smith and the Secretary, 

1 Helen filed a Petition for Discretionary Review of the judge's 

decision with the Commission, but no two Commissioners voted to grant the 

petition. As a consequence, the judge's decision became the final decision of 

the Commission 40 days after it was issued. 30 U.S.C. § 823(d)(l). 

2 Helen filed its petition for review in the D.C. Circuit on November 

18, 1992. 

1993 
respectively. Counsel for the Secretary has advised the Commission, by 

telephone, that Complainant Joseph A. Smith agrees with the Secretary's 

position. 

Helen filed its Application pursuant to Rule 18 of the Federal Rules of 

Appellate Procedure, which provides that an "[a]pplication for a stay of a 

decision or order of an agency proceeding pending direct review in a court of 

appeals shall ordinarily be made in the first instance to the agency." An 

escrow arrangement has the effect of maintaining the status quo in this 

litigation during appeal. Section 106(a)(l) of the Mine Act, 30 U.S.C. 

§ 816(a)(l), provides that if a final decision of the Commission is appealed 

to a court of appeals, the court shall have exclusive jurisdiction of the 

proceeding once the record of the proceeding before the Commission is filed 

with the court. The record in the present proceeding is due to be filed with 

the D.C. Circuit on January 7, 1993. The Commission, therefore, has 

jurisdiction to consider Helen's Application at this time. 

Under the facts presented and given the Secretary's and the 

complainant's lack of opposition to Helen's Application to place the civil 

penalty and back pay award, plus interest, into escrow accounts, Helen's 

Application is granted to the extent that the escrow accounts shall be 

established subject to the conditions set forth in the Secretary's response to 

the Application. 

Distribution~ 

Tana M. Adde, 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

J. Michael Klutch, Esq. 

Polito & Smock, P.C. 

Suite 400 

Four Gateway Center 

Pittsburgh, PA 15222 

Arlene Holen, Chairman 

~~/1---- Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

1994 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

.J. SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC l l.992 

SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA), 

Petitioner 

Vo 

JAMBOREE COALS, INCORPORATED, 

Respondent 

) Master Docket No. 91-1 

) Docket No. KENT 91-1175 

) A.C. No. 15-14583-035450 

) 

) No. 3 Mine 

) 

) Docket No. KENT 91-1174 

) A~c. No. 15-16784-035100 

) 

) No. 4 Mine 

ORDER OF DISffISSAL 

Before~ Judge Broderick 

On November 27, 1992, the Secretary filed a motion to 

dismiss these proceedings on the grounds that on August 2, 1991, 

the Respondent and Jack Fannon, President of Respondent entered 

into plea agreements, agreeing to plead guilty to charges of 

conspiracy to defraud the United states in connection with the 

civil violations charged hereino Respondent contracted with 

;I'riangle Research to handle its dust sampling program. 

Triangle 0 s principal and agent admitted falsifying the samples 

submitted to MSHA and admitted that on numerous occasions they 

blew air on the filter surfaces of manufactured dust samples. 

Harry White and Ronald Ellis of Triangle have been convicted of 

defrauding the government and have been sentenced to prisono 

Respondent provided Triangle with signed blank dust data cards 

'l:Jhich were submitted to MSHA with the samples. 

On May 8v 1992v Judge Joseph Mo Hood of the Eastern District 

of Kentucky sentenced Jamboree Coals to pay a find of $5,000 and 

years probationo Jack Fannon was sentenced to 2 years 

probation and 3 months of home detentiono As part of the plea 

agreement the Secretary agreed to move to dismiss pending civil 

penalty proceedings against Respondent for violations of the laws 

governing the dust sampling program. 

I conclude that under the circumstances dismissal of these 

proceedings effectuates the purposes of the Mine Act. 

1995 
Accordingly, these proceedings is DISMISSED. 

/itt/t/ftZ f; ffi vodu,,i~ ~· James A. Broderick · Administrative Law Judge 

Distribution: 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400 Arlington, VA 22203 (Certified Mail) 

John D. Austin, Jr., Esq., Austin & Movahedi, 2115 Wisconsin 

Avenue, N.W, Washington, DC 20007 (Certified Mail) 

/fb 

1996 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SOLID MINING COMPANY, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOLID MINING COMPANY, 

Respondent 

) CONTEST PROCEEDINGS 

) 

) Docket No. VA 91-254-R 

) through VA 91-259-R 

) 

) Mine No. 1 

) 

) 

) 

) CIVIL PENALTY PROCEEDING 

) 

) Docket No. VA 91-498 

) A.C. No. 44-05926-03537D 

) 

) Mine No. 1 

) 

) 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On November 21u 1992u the Secretary filed a motion to 

dismiss these proceedings on the grounds that on August 2v l99lu 

the Respondent and Paul Fletcheru President of Respondent entered 

into plea agreementsu agreeing to plead guilty to charges of 

conspiracy to defraud the United States in connection with the 

civil violations charged herein. Respondent contracted with 

Triangle Research to handle its dust sampling program. 

Triangleis principal and agent admitted falsifying the samples 

submitted to MSHA and admitted that on numerous occasions they 

blew air on the filter surfaces of manufactured dust samples. 

Harry White and Ronald Ellis of Triangle have been convicted of 

defrauding the government and have been sentenced to prison. 

Respondent provided Triangle with signed blank dust data cards 

which were submitted to MSHA with the samples. 

On May 8, 1992, Judge Samuel G. Wilson of the Western 

District of Virginia sentenced Solid Mining Co., Inc., to pay a 

fine of $15,000 and to 2 years probation. Paul Fletcher was 

sentenced to 2 years probation and 60 days of home confinement. 

As part of the plea agreement the Secretary agreed to move to 

dismiss pending civil penalty proceedings against Respondent for 

violations of the laws governing the dust sampling program. 

1997 
I conclude that under the circumstances dismissal of these 

proceedings effectuates the purposes of the Mine Act. 

Accordingly the above contest proceedings and the civil 

penalty proceeding are DISMISSED. 

Distribution: 

4_,1M,~ A13vo~ (/~~mes A. Broderick 

Administrative Law Judge 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400 Arlington, VA 22203 (Certified Mail) 

Thomas R. Scott, Jr., Esq., Street, Street, Street, Scott & 

Bowman, 339 West Main Street, P.O~ Box 2100, Grundy, VA 24614 

(Certified Mail) 

/fb 

1998 
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. 

MP & M COAL COMPANY, INC., 

Respondent 

) CIVIL PENALTY PROCEEDING 

) 

) Master Docket No. 91-1 

) Docket No. VA 91-535 

) A.C. No. 44-04632-03557D 

) 

) Mine No. 2 

) 

ORDER OF DISMISSAL 

Before: Judge Broderick 

on November 27, 1992, the Secretary filed a motion to 

dismiss this proceeding on the grounds that on August 6, 1991, 

the Respondent and Frank Hackney, President of Respondent entered 

into plea agreements, agreeing to plead guilty to charges of 

conspiracy to defraud the United states in connection with the 

civil violations charged herein. Respondent contracted with 

Triangle Research to handle its dust sampling program. 

Triangle's principal and agent admitted falsifying the samples 

submitted to MSHA and admitted that on numerous occasions they 

blew air on the filter surfaces of manufactured dust samples. 

Harry White and Ronald Ellis of Triangle have been convicted of 

defrauding the government and have been sentenced to prison. 

Respondent provided Triangle with signed blank dust data cards 

which were submitted to MSHA with the samples. 

on August 7f 1992u Judge Samuel G. Wilson of the Western 

District of Virginia sentenced M.P & M, Inc. to pay a fine of 

$30uOOO and to 2 years probation. Frank Hackney was sentenced to 

2 years probation and 60 days of home confinement. As part of 

the plea agreement the Secretary agreed to move to dismiss 

pending civil penalty proceedings against Respondent for 

violations of the laws governing the dust sampling program. 

I conclude that under the circumstances dismissal of this 

proceeding effectuates the purposes of the Mine Act. 

Accordingly, this proceeding is DISMISSED. 

~s fi5.z;;ck,2'd_ 

ames A. Broderick 

Administrative Law Judge 

1999 
Distribution: 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400 Arlington, VA 22203 (Certified Mail) 

Ronald King, Esq., P.O. Box 1560, Grundy, VA 24614 

(Certified Mail) 

Frank w. Hackney, MP & M Coal Company, Inc., Rt. 1, Box 513, 

Grundy, VA 24614 (Certified Mail) 

/fb 

2000 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

VINCENT BRAITHWAITE, 

Complainant 

: 

. . DISCRIMINATION PROCEEDING 

Vo 

Docket No. WEVA 91-2050-D 

MORG CD 91-06 

TRI-STAR MINING, INC., 

Respondent 

DECISION DENYING MOTION FOR RECONSIDERATION 

AND AWARDING DAMAGES 

Appearances: Vincent Braithwaite, Piedmont, WV, 

~ Se1 

Before: 

Thomas G. Eddy, Esq., Eddy & Osterman, 

Pittsburgh, PA, for Respondent. 

Judge Fauver 

This case was brought under § 105 (c) of the Federal Mine 

Safety and Health Act of 1977, § 801 et seq., alleging a 

discriminatory discharge. 

On August 24 v 1992 u a decision on liability was entered 8 

finding that Respondent discharged Complainant on April 2u 1991, in 

violation the Actp and that on the date of hearing, April 29 8 

1992 9 Respondent made a bona fide offer to reinstate Complainant 

pending a decision on liability and Complainant refused the offer. 

The decision therefore limited the period for back pay to April 2, 

199lp through April 29u 1992. 

Following extensive conference calls and exchanges of 

documents on damagesu a hearing on damages was held on September 

29 v 1992 o At. the hearing, Respondent moved to reconsider the 

decision on liability based on the decision of the Maryland 

Department of Economic and Employment Development Off ice of 

Unemployment Insurance, dated April 12, 1991. The state agency 

denied Complainantis claim for unemployment compensation on the 

ground that he had refused to perform work and his "action was a 

deliberate and wilful disregard of standards of behavior, which 

his/her employer had a right to expect. 11 I have reviewed the 

documents and arguments submitted on the motion, and find that the 

state agency 1 s decision does not warrant reconsideration of my 

liability decision. The state decision is not binding on this 

Commission, and did not involve federal issues raised by the Mine 

Safety Act. 

2001 
At the hearing on damages, based on the hearing evidence and 

prehearing exchanges of documents and representations of facts in 

the conference calls, a provisional order was entered assessing 

damages as follows: 

Damages for repossessed truck. 

Medical expenses that would 

have been paid by Pennsylvania 

Blue Shield had Complainant 

not been discharged. 

Back pay after deduction 

for earnings from. other 

employment. 

Litigation expenses and 

expenses seeking other 

employment. 

$2,150.00 1 

$7,854.00 

$19,798.00 

$198.13 

$30,001.12 

After the hearing, Respondent submitted a letter from 

Pennsylvania Blue Shield stating that it would not have paid a 

certain part of the prenatal charges paid by Complainant. Based on 

that letter, and without opposing documents from Complainant, I 

find that $2,300.00 should be deducted from the bill from Ors. 

Mould and Kho for $4,100.00 in considering Complainant's medical 

damages. This deduction results in an allowance of $1,440.00 for 

their bill ( 80% x $1, 800. 00) , instead of the allowance in the 

provisional order of $3, 280 (80% x $4, 100. 00). 2 This change 

reduces medical damages to $6,614.99 ($7,854.99 minus $1,840.00). 

Based on the evidence 1 no other adjustments in the provisional 

order are warrantedo Accordinglyu damages will be awarded in the 

amount 8,161.12 ($30,001.12 minus $1,840.00), plus interest. 

ORDER 

WHEREFORE IT IS ORDERED that: 

motion for reconsideration the decision on 

This figure is reached by adding (A) the fair market value 

of the truck (time of repossession) and (B) the lender 9 s charge 

for repossessionv then subtracting (C) the lender allowance for the 

repossession sale of the truck. The figures are included in the 

transcript of the hearing on damages. 

2 I find that Blue Shield would have paid 80% of the covered 

part of the doctors' bill and 100% of the hospital bill submitted 

by Complainant. 

2002 
liability is DENIED. 

2. Within 30 days of the date of this decision, Respondent 

shall pay damages of $28,161.12 to Complainant plus accrued 

interest from April 2, 1991, until the date of payment. Interest 

will be computed according to the Commission's decision in Local 

Union 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1483 (1988), 

aff 'd sub nom. Clinchfield Coal Co. v. fMSHRC 895 F.2d 773 (D.c. 

Cir., 1990), and calculated in accordance with the formula in 

Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984). 

3. This decision and the decision on liability constitute 

the judge's final disposition of this proceeding. 

Distribution: 

~ -:r-~V't/t...-- William Fauver 

Administrative Law Judge 

Mro Vincent Braithwaite, 53 West Harrison Street, Piedmont, West 

Virginia 26750 (Certified Mail) 

Thomas G. Eddy, Esq., Eddy and Osterman, 820 Grant Building, 

Pittsburgh, PA 15219 (Certified Mail) 

/fcca 

2003 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1 0th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEG 2 1992 

SECRETARY OF LABOR, TEMPORARY REINSTATEMENT 

MINE SAFETY AND HEALTH 

ADMINISTRATION ON BEHALF Docket No. WEVA 93-31-DM 

OF PAUL H. BROOKS, NE-MD 92-03 

Applicant 

Greystone Quarry and Plant 

v. 

RONALD B. SNYDER AND R.B.S. 

INCORPORATED, 

Respondents 

Appearances: 

ORDER OF TEMPORARY REINSTATEMENT 

Gretchen Lucken, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia 

for the Applicant: 

David J. Hardy, Esq., Jackson & Kelly, 

Charleston, West Virginia for the Respondents. 

Before: Judge Barbour 

On October 28u 1992u the Secretary of Labor ("Secretary") 

file an application for an Order requiring Respondents Ronald B. 

Snyder and R.B.S. Incorporated ("R.B.S.") 1 to reinstate Paul H. 

Brooks to t.he position that he held immediately prior to his 

discharge on July 30, 1992u or to a similar position at the same 

rate of pay, and with the same or equivalent duties. The 

Application was supported by the affidavit of James E. Betcher, 

Chief u Office of Technical Compliance and Investigation Division, 

~etal and Non-Metal Safety and Health Divisionu Mine Safety and 

Health Administration ("MSHA") and by a copy of the original 

complaint filed by Brooks with MSHAo 

In a letter filed on November 9q 1992, counsel for 

Respondents requested a hearing on the Application. As the 

result of a November 10 1 1992 telephone conversation involving 

counsels and myself, the parties agreed to November 24, 1992, as 

1

Ronald Snyder is the president of R.B.S. Incorporated. 

2004 
the date for the hearing. Therefore, the requested hearing was 

held pursuant to notice on that date in Beckley, West Virginia. 2 

As yet, the hearing is not transcripted. 

Prior to counsels' opening statements and to the taking of 

testimony, I orally summarized the pleadings, and I stated that 

the issue to be resolved at the hearing was narrow - - whether 

Brooks' complaint was "not frivolous brought" as that term 

is used in Section 105(c)(2) of the Federal Mine Safety and 

Health Act of 1977 ("Mine Act"). I also stated my understanding 

of the law to be that I was not required to determine the merits 

of Brooks' discrimination complaint but solely to determine 

whether the complaint was frivolous; that is to say, whether it 

was clearly without merit, clearly fraudulent or clearly 

pretexual in nature. 

THE TESTIMONY 

THE APPLICANT'S WITNESSES 

The Secretary, on behalf-of Brooks, presented her case 

through the testimony of Brooks and of Larry w. Brendle, a 

special investigator for MSHA who investigated Brooks' 

discrimination complaint for the Secretary. 

Brooks testified that until his discharge on July 30, 1992, 

he had worked as the operator of a front end loader ( 11 loader") at 

the Greystone Quarry and Plant. 3 He stated that on the morning 

of July 30, 1992, he was loading limestone from a muck pile into 

a waiting truck and that he was concerned about the condition of 

the highwall above him. He described the highwall as being 

cracked from top to toe and as being topped by overburden 

2

Although Commission Procedural Rule 44(b), 29 C.F.R. § 2700. 44(b), 

requires that a hearing be held within ten (10) days of the receipt of a 

request for hearing, November 24, 1992, was the earliest date available to try and to hear the Application. Therefore, compelling reasons existed to extend 

the time within which the hearing was conducted. 

sThe facility is a limestone quarry located near White Sulphur Springs, 

West Virginia. The quarry is owned and operated by R.B.S. and was generally 

described by Snyder as being approximately "U" shaped, as having a limestone 

highwall topped by overburden ranging in depth from 0 feet to 80 feet and as 

being mined in a step-like series of three benches each of which measures 

approximately 70 feet in height. Witnesses for both parties essentially 

agreed that limestone is mined at the quarry in the following sequence: the 

face of the highwall is drilled and blasted, the resulting muck pile is loaded 

into a waiting truck by a loader and the limestone is trucked from the pit. 

2005 
(including broken rock) that was soft and saturated with water. 

According to Brooks the overburden was unstabl~ and some had 

fallen previous to July 30. 

Brooks described the muck pile that he was loading as being 

approximately 45 feet high. In addition to the highwall, he 

stated that he was concerned about material coming off of the 

muck pile. According to Brooks, both the highwall and the muck 

pile were too high for him to have easy visibility of their tops 

from his seat in the loader's cab. Brooks stated he was 

concerned that if the loose, unconsolidated material fell from 

the highwall he would be unable to get out of the way. 

Brooks further stated that he had other visibility problems 

in that a cab protector above the windshield of the loader also 

restricted his view upward. 4 

Brooks testified that on July 28, an effort had been made to 

scale the loose, unconsolidated material on top of the highwall, 

but that he believed the resultwasonly to loosen the overburden 

further and to make it more likely to come down. He described 

himself on July 30, as being tense and uncomfortable and unable 

to do his job. As a result, Brooks claimed that he drove the 

loader out of the pit 1 parked it and spoke with his foreman, John 

Harless. 

According to Brooks, he told Harless that he did not want to 

return to work at the muck pile because the highwall was unsafe 

and the muck pile was too high for the visibility he required. 

He stated that he offered to do other work - - specifically, to 

help get the loose, unconsolidated material down from the 

highwall. In Brooks 9 version of the events~ Harless told him to 

wait. Shortly after that, Snyder arrived. 

Brooks stated that Snyder asked him what was going on? 

Brooks responded that the company needed to take care of the 

highwall, that it was unsafe and that it needed to be scaled. 

Brooks testified that Snyder asked him several times if he were 

going to go back to work at the muck pile and load the truck. 

Brooks indicated to Snyder that he would have to think about ito 

{Brooks explained that he was nth inking about his life. ii) 

4

Brooks described the cab protector as offering protection to the 

windshield from falling or flying rock and as consisting of a series of metal 

bars extending about 5 inches from the top of the cab over the windshield and 

being about 3 1/2 inches thick. Snyder testified that the cab protsctor was 

not new and had been standard equipment on the loader since the first day the 

loader was operated at the quarry. 

2006 
Brooks testified that Harless said to Snyder that while 

Brooks was thinking they should go into the pit and look at the 

situation. Brooks indicated that the two men went to where he 

had been working but that he did not see them look at the 

highwall, rather that they looked at the muck pile. Brooks 

stated that when they returned, Harless asked him if he had made 

his decision and that Brooks responded he was still thinking. He 

also stated that he told them he would help Harless get the loose 

material down from the highwall, but that until he was told what 

to do he would stay put. 

According to Brooks, it was at this point that Snyder told 

him that he was fired. Brooks stated he shook hands with Snyder, 

told him that it had been a pleasure working for him and said 

that if Snyder ever needed him again to just give him a call. 

Brooks testified that after he was fired he filed a 

discrimination complaint with MSHA, as well as a safety complaint 

about the hazardous nature of the area where he was working. 

Brooks was persistent i11.maintaining that the condition of 

the highwall was the source of his safety concerns. He stated 

that if the highwall had been safe he would not have had any 

concerns and would have continued to work. 

The Secretary then called Brendle to testify. Brendle 

stated that he went to the quarry on August 11, 1992, to view 

the area where Brooks had been working. While at the quarry, 

Brendle issued a Section 107(a), 30 u.s.c. § 817(a), imminent 

danger closure order with an associated Section 104(a), 

30 u.s.c. § 814(a),· citation alleging, among other things, that 

approximately 40 feet of unconsolidated dirt and stones (the 

overburden) at the top of the south wall section of the highwall 

constituted an imminent danger and a violation of mandatory 

standard Section 56.3131. 5 Go Exh. 4. Brendle maintained 

standard states: 

Pit or quarry wall perimeter. 

In places where persons work or travel in performing their assigned 

tasks, loose or unconsolidated material shall be sloped to the angle of repose 

or stripped back for at least 10 feet from the top of the pit or quarry wall. 

Other conditions at or near the perimeter of the pit or quarry wall which 

create a fall-of-material hazard to persons ~hall be corrected. 

30 C.F.R. § 56.3131. R.B.S. is contesting the validity of the order/citation, 

including the alleged violation of Section 56.3131. 

2007 
that the edge of the area encompassed in his order/citation was 

even with the muck pile Brooks was loading and that the 

conditions he cited endangered Brooks. 

Brendle also testified that as a result of Brooks' safety 

complaint, MSHA Inspector Carl Sneed had gone to the quarry the 

day after Brooks was fired (July 31, 1992) and had issued a 

Section 107(a) imminent danger withdrawal order with an 

associated section 104(a) citation that cited a violation of 

mandatory safety standard Section 56.3200. 6 Gov. Exh. 3. This 

order/citation stated in part that loose, unconsolidated 

material, was present along the top of the catch bench in the 

west section of the pit for approximately 100 feet. Inspector 

Sneed did not testify, but Brendle stated that he understood 

Sneed's order/citation to have been issued for the same general 

area of the quarry that he, Brendle, had cited. 7 Brendle 

believed it was possible that Brooks had been endangered by the 

conditions cited by Sneed, but he did ~ot know for certain. 

Brendle stated that in any event, the condition of the highwall 

that he cited on August 11 was "atrocious." 

Brendle testified that on July 30, Brooks was working under 

overburden that consisted of large stones and fill dirt made 

loose by rain. In addition, Brooks had the highwall to his right 

as he worked, and Brendle believed that because he had to turn to 

his right to look at the highwall and because of the highwall's 

height, Brooks~ vision was obscured and he could not detect any 

loose material that might be coming down near him. Brendle also 

believed it possible that the cab protector further obscured 

Brooks' vision. Brendle feared that any falling loose material 

could travel up to 150 feet from the base of the highwall if the 

~The standard states~ 

Correction of hazardous conditions. 

Ground conditions that create a hazard to persons shall be taken down or 

supported before other work or travel is permitted in the affected area. 

Until corrective work is completed0 the area shall be posted with a warning 

against entry and when left unattended a barrier shall be installed to impede 

unauthorized entryo 

30 C.F.R. $ 56.3200. R.B.S. is also contesting the validity of this 

order/citation. including the alleged violation of Section 56.3200. 

7

There was confusion about directional references at the quarry. Sneed 

referred in his order/citation to the west section of the pit, Brendle 

referred in his testimony to the south wall section, and Snyder, if I 

understood him correctly and who I assume knows best, spoke of the area 

involved as the southeast corner of the pit. 

2008 
material hit something on the way down and bounced: In Brendle's 

opinion, Brooks clearly was working within a distance from where 

he could have been injured by falling material. 

Brendle also stated that Snyder told him he had fired Brooks 

because Brooks said. that he would not load any material piled 

higher than the windshield of the loader, and be=ause Brooks 

expected to be paid on July 30 for a full day, even though he had 

stopped operating the loader around noon. Finally, Brendle 

stated that after Inspector Sneed had issued the order/citation 

on July 31, Sneed allowed the muck pile on which Brooks had been 

working to be totally cleared. (In other words, Sneed allowed 

normal work to continue in the area where Brooks had been 

working.) Brendle explained that he did not agree with Sneed's 

decision in this regard, that he had called Sneed at the time 

he, Brendle, issued his order/citation to express his 

disagreement and to advise Sneed of what he was going to do, and 

that in so doing, he found out that Sneed had not inspected the 

top of the highwall prior to issuing the order/citation on July 

31. Nonetheless, Brendle stated that it was possible Sneed was 

in a better position to evalua.te the. conditions under which 

Brooks had worked on July 30 than he, Brendle, was. 

THE RESPONDENTS' WITNESSES 

After the Secretary rested, the Respondents presented their 

case through the testimony of three witnesses: Snyder, Harless 

and Ricky Massey, a fill-in laborer. Not surprisingly, they 

offered a different version of events. 

Snyder stated that around 11:00 A.M. on the morning of 

July 30, 1992, he was at his office when he received a telephone 

call from Harless. Harless informed Snyder that Brooks was 

refusing to load anything higher that the windshield of the 

loader" According to Snyderp muck piles at the quarry are 

typically 40 to 45 feet high" Thusp of necessityr a loader 

operator must load material that is higher than the windshield. 

Therefore, Snyder asked Harless if he was sure Brooks had said 

that he would not load such material, and Harless replied, 01Yes" uu Harless suggested to Snyder that he come to the quarry 

and talk to Brooks" 

Once at the quarry, Snyder found Brooks and the parked 

loader outside of the work area. Snyder asked Brooks what the 

problem was and Brooks replied, Hit 1s the same old s t, Harless 

doesn't know what he doing.n Snyder said to Brooks that 

2009 
Harless had told him that Brooks refused to load anything higher 

than the windshield of the loader. Snyder asked Brooks two or 

three times if this were true, and Snyder answered, "Yes." 8 

Harless then suggested that he and Brooks look at the area 

and see what the problem was. Snyder stated that he and Harless 

went to the muck pile and that he did not see anything that he 

believed was unsafe. Snyder expressed the opinion that there was 

nothing inherently unsafe about loading material that was higher 

than the cab or the windshield of a loader. 

After Snyder and Harless returned from the muck pile, Snyder 

stated that he asked Brooks again if he would not load material 

that was piled above the cab of the loader, and Brooks stated 

that he would think about it. After he had thought about it, 

Brooks indicated to Snyder that he had come to the quarry that 

day expecting to work and that he intended to be paid for a day's 

work. Snyder responded, "No you're not," or words to that 

effect, and told Brooks that he was fired. Snyder stated that he 

discharged Brooks for two reasons: (1) for refusing to load 

material higher than the winq~hield of the loader, and (2) for 

demanding a days's work when he had not worked a full day. 

Brooks was paid to the time he was fired approximately 

12:00 P.M. - - and left the quarry. 

During cross-examination, Snyder stated that he was certain 

that in the course of their conversation on July 30, Brooks had 

not made any statement about his safety and the condition of the 

highwall. However, counsel for the Secretary read to Snyder from 

a transcript of Snyder's unsworn interview with Brendle 

concerning Brooks' discharge. In the transcript, Snyder was 

quoted as telling Brendle that Brooks had said to him, "It's the 

same old s t, Harless doesn't know what he is doing and I am not 

going to risk my safety or life under the highwall. 11 Snyder 

indicated that he had made the statement to Brendleo 

Snyder also stated that at no time during his conversation 

with Brooks did Brooks offer to do other work. Snyder stated 

thatp in fact, there was nothing unsafe about loading material 

piled higher that the cab of the loader and that July 30 was the 

first time Brooks had ever stated he would not load such 

materialo 

Snyder also stated the he believed the area encompassed by Sneed~s order/citation of July 31 was at least 200 feet from 

where Brooks was working on July 30; and that the area 

8

r asked Snyder if he had questioned Brooks as to why Brooks would not 

load higher material, and he stated that he had not. He explained that he 

could not foresee any conditions under which the practice to which Brooks 

objected would be hazardous. 

2010 
encompassed by Brendle's order/citation of August 12, although it 

extended somewhat closer to the area where Brooks was working was 

nonetheless 150 feet away from Brook's work station. 

Snyder maintained that on July 30, Brooks was not in any 

danger. The overburden under which Brooks was working had been 

stripped back. It was not loose or unconsolidated. To support 

his opinion he noted that after issuing his order/citation, Sneed 

had permitted the entire muck pile on which Brooks was working to 

be loaded and that it took approximately 40 hours to do so. 

Jimmy Harless, Brooks' supervisor, testified next. He 

stated that scaling on the highwall had been underway prior to 

July 30, and that on July 30 the area scaled was about 200 .feet 

from where Brooks was located and that any material knocked loose 

came down on a barricaded bench, not near Brooks. Harless 

testified that on July 30 he was advised by the driver of the 

truck Brooks was loading that Brooks wanted to talk to him. 

Brooks told Harless that he would not load anything above the 

height of the loader's windshield. 9 

According to Harless, Brooks made no reference to safety 

concerns about the highwall or the muck pile. However, on 

cross-examination, Brooks' counsel asked Harless about the 

following exchange during Harless' unsworn interview with 

Brendle~ 

Q. On July 30 ... Brooks ... said that 

he did no feel safe working at the highwall 

. and he was ... fired that day. Do 

you want to . . . tell me what you know? 

A. The part of the highwall that he was 

talking aboutv he was approximately 300 to 

400 feet away from it and the shot he was 

mucking outv there was no big stuff over his 

head. Then he told me he was not going to 

load anything over windshield height . . . 

Resp. Exh. 3. Harless agreed that this is what he had said. 

Harless stated that after talking to Brooks he called 

Snyderv who came to the quarry to talk to Brooks. During their 

conversationv Snyder stated to Brooks that Harless had told him 

Brooks had refused to load anything above the height of the 

loaderus windshield, and Snyder asked, "Is that what you said?" 

Brooks respondedv 11Right." Snyder let Brooks know that he wanted 

9

Harless noted that because muck piles at the quarry are usually piled 

well above windshield height, it would have been impossible to operate a front 

end loader at the quarry under Brooks' restrictions. 

2011 
Brooks to return to work, and Brooks stated that he would have to 

think about it. Snyder and Harless then went to look at the area 

where Brooks had been working, and according to Harless, did not 

see anything that was unsafe. 

When the two returned, Brooks told Snyder that he had not 

made up his mind about whether he would return to work, and he 

indicated he would continue to sit and draw his pay. Harless 

stated that Snyder said, "No you won't.", and Snyder fired 

Brooks. 

Harless agreed with Snyder that Sneed's order/citation 

of July 31 covered an area that was approximately 200 feet from 

Brooks, and that although Brendle's order/citation of August 12 

was more inclusive, the area concerned was still approximately 

150 feet from where Brooks had been working on July 30. Harless 

believed that the conditions referenced in both order/citations 

could not have endangered Brooks. 

Ricky Massey was the last to testify. He stated that he had 

known Brooks "for years." He,.also stated that on July 30, 

scaling was being conducted on the highwall, but in an area that 

was barricaded and that was removed from where Brooks was 

working. The scaling did not endanger Brooks. He agreed with 

Snyder and Harless that the conditions cited in the July 31 and 

August 12 order/citations were physically distant from where 

Brooks had been working and would have posed no danger to him. 

THE ISSUE 

The essence of Brooks' complaint is that he engaged in 

protected activity - - i.e., a protected work refusal - - and 

that his subsequent discharge was motivated by that activity" A 

miner has a right under Section 105(c} of the Mine Act to refuse 

work if the miner has a good faithv reasonable belief that such 

work is hazardous. Secretary on behalf of Pasula Vo 

consolidation Coal co .. , 2 FMSHRC 2786, 2797-2800 (October 1980) 

rev 0 d on other grounds sub. nom. Consolidation Coal Company v. 

Marshall, 663 F.2d 1211, 1216 N.6, 1219 (3rd Cir. 1981); Miller 

Vo Consolidation Coal Co., 687 F.2d 194-195 (7th Cir. 1982). A 

good faith belief 1vsirnply means honest belief that a hazard 

exists.ii Secretary on behalf of Robinette v. United Castle Coal 

Co.u 3 FMSHRC 803, 807-12 (April 1981)" 

As previously stated, the standard of review in this 

proceeding whether the Secretaryvs legal theory, as well as 

the Secretaryis factual assertions, are not frivolous. See Jim 

Walter Resources, Inc., v. FMSHRC, 920 F.2d 738,747 (11th Cir. 

1990). Although the Secretary•s legal theory of a protected work 

refusal may or may not be sustained at a trial on the merits, it 

is certainly an arguable legal position given the testimony of 

Brooks that he refused to continue loading because of his concern 

2012 
about the dangers presented by the highwall, his testimony that 

he expressed those concerns and the undisputed 

factthatimmediately subsequent to his refusal he was terminated. 

While there is an obvious disagreement over whether, in 

fact, Brooks was in any danger on July 30 and/or reasonably could 

have believed himself to be in any danger, there is no doubt that 

some parts of the highwall contained loose, unconsolidated 

overburden, and I believe that resolution of questions about the 

actual conditions under which Brooks was working and/or 

reasonably believed he was working require credibility determinations and factual findings more appropriately made after 

a full trial of the issues. Further, the same is true concerning 

whether, as required by the Mine Act, Brooks "communicate[d] •• 

• his belief in the safety ••• hazard at issue." Secretary on 

bebalf of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126, 

133 (February 1982); See also Simpson v. FMSHRC, 842 F.2d 453, 

459 (D.C. Cir 1988). 

Thus, I conclude that while th~re is conflicting testimony 

on these fundamental issues, it cannot be found that the 

Secretary's legal theory of discrimination and her factual 

assertions are clearly fraudulent, clearly without merit or 

clearly pretexual. Therefore, I find that Brooks' complaint is 

"not frivolously brought" and that Brooks is entitled to 

temporary reinstatement. 

While I can well understand that such reinstatement may seem 

an unwarranted intrusion on R.B.s.•s prerogatives to control the 

makeup of its workforce, it is important to remember that the 

right to temporary reinstatement and the "not frivolously 

brought" standard represent the judgement of Congress on the 

protection individual miners should be afforded as the result of 

playing their part in ensuring the safety of mining facilities 

and how the risk of possible discharge should be borno See Jim 

Walter Resourcesu gio Wo2d at 748 no llo 

ORDER 

Respondent is ORDERED to immediately reinstate Paul Ho 

Brooks to the position from which he was discharged on or about 

July 30 0 1992 0 or to an equivalent positionq at the same rate of 

pay and with same equivalent dutieso 

P~/(7~1K,._ 

Administrative 

David ~ ~~;:rr-~ 

Law Judge 

(703)756-5232 ' 

2013 
Distribution: 

Gretchen M. Lucken, Esq., Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston, 

WV 25322 {Certified Mail) 

/epy 

2014 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Ji/ 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Docket No. LAKE 92-267-M 

A/O No. 11-01578-05537 

Wedron Silica Plant 

WEDRON SILICA COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

Rafael Alvarez, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, 

for the Petitioner; Peter Comodeca, Esq., 

Calfee, Halter.and Griswold, Cleveland, Ohio, 

for the Respondent 

Judge Melick 

This case is before me upon a petition for assessment 

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

Safety and Health Act of 1977 (the Act). At hearing, 

Petitioner filed a motion to approve a settlement agreement 

and to dismiss the case. Respondent has agreed to pay the 

proposed penalty of $700 in full. I have considered the 

representations and documentation submitted in this case, 

and I conclude that the proffered settlement is appropriate 

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

WHEREFORE, the motion for appr 

GRANTED, and it is ORDERED that Re 

$700 within 30 days of this order. 

settlement agreementv the "signif 'c 

findings are hereby deleted from h 

val of settlemen s 

ondent pay a penal y of 

In $cordance with the 

nt d substantial' 

b"ect citationo ' 

I I I i 

Gary Melick 

Administrative Law dge 

2015 
Distribution: 

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

of Labor, 230 South Dearborn, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Peter J. Comodeca, Esq., Calfee, Halter and Griswold, 

800 Superior Avenue, suite 1800, Cleveland, Ohio 44114-2688 

(Certified Mail) 

/lh 

2016 
PBDBRAL l!l'IllB SAPBTY DD BBAL'l'JI RBVZBW COlila:SS:COJI 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

KEYSTONE COAL MINING CORP., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABORu 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

V. 

KEYSTONE COAL MINING CORP., 

Respondent 

2017 

CONTEST PROCEEDINGS 

Docket No. PENN 91-1480-R 

citation No. 3687890; 

8/21/91 

Emilie No. 1 Mine 

Mine ID 36-00821 

Docket No. PENN 91-1454-R 

Citation No. 3687888; 

8/14/91 

Margaret No. 11 Mine 

Portal # 2 

Mine ID 36-08139 

Docket No. PENN 92-54-R 

Citation No. 3687895; 

9/20/91 

Emilie No. 1 Mine 

Mine ID 36-00821 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 92-114 

A.C. No. 36-00821-03761 

Emilie No. l Mine 

Docket No. PENN 92-119 

A. C. No. 36-08139-03512 

Margaret No. 11 Mine No. 2 

Portal 
Appearances: 

DECISION 

R. Henry Moore, Esq., Buchanan Ingersoll, 

Pittsburgh, Pennsylvania, for Keystone Coal 

company; 

Edward H. Fitch, Esq., and Carl c. Charneski, 

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

Solicitor, Arlington, Virginia, for the Secretary 

of Labor 

Before: Judge Weisberger 

Statement of the Case 

In these consolidated contests and civil penalty proceedings 

the Secretary (Petitioner) filed petitions for assessment of 

civil penalty alleging violations of 30 C.F.R. § 70.lOO(a). on 

February 7, 1992, the Operator (Respondent) filed a Motion for 

Summary Decision, which was replied to by the Secretary on 

March 27, 1992. In a telephone conference call between the 

undersigned and counsel for both parties on April 9, 1992, 

counsel were requested to provide proper citations in the record 

to certain assertions set forth in their respective memorandum 

submitted in connection with the Operator's Motion. On May 5, 

1992, an order was issued denying the Motion for Summary 

Decisiono 

Subsequent to notice, the cases were heard on June 2,3,4, 

1992, in Pittsburgh, Pennsylvania, and pursuant to counsels' 

agreement, on July 21, and 22, 1992, in Falls Church, Virginia. 

Both parties filed post hearing briefs on October 9, 1992. 

On October 9 0 1992, American Mining Congress filed a Motion for 

leave file an amicus brief u and leave was granted in an 

order issued October 26 9 1992 9 and the amicus curiae brief, was 

deemed filed as of a October 9 0 19920 Respondent filed a Reply 

Brief on October 20 0 19920 On October 2lu 1992, Petitioner filed 

a Motion for an Extension of Time to file a Reply Brief from 

November 13 0 to November 25 0 1992v and Respondent objected to 

this Motiono On October 26u 1992 0 an order was issued granting 

Petitioner until November 25 0 1992 0 to file a Reply Brief o On 

November 25 5 1992 0 Petitioner filed a Reply Brief" 

Io Introduction 

issue in these cases are three citations issued by MSHA 

inspector Brady Cousins on August 14, August 21, and 

September 20, 1991. Each citation alleges violations of 

30 C.F.R. § 70.lOO(a), based on a single respirable dust sample 

taken during one shift which indicated dust concentrations 

2018 
exceeding 2.0 milligrams per cubic meter of air (hereinafter 

referred to as 2.0 mg/m3). Specifically, the issue presented is 

the validity of the Secretary's Spot inspection program, which 

commenced July 1991, requiring the citation of an operator for 

non-compliance based on dust samples obtained in a single shift. 

IIo Statutory Background 

Section 70.lOO(a) supra, repeats the language of Section 

202(b) (2), of Federal Mine Safety and Health Act of 1977 ("the 

1977 Act") as follows: 

Each operator shall continuously maintain the average 

concentration of respirable dust in the mine atmosphere 

during each shift to which each miner in the active 

working of each mine is exposed at or below 2.0 

milligrams of respirable dust per cubic meter of air as 

measured with an approved sampling device and in terms 

of an equivalent concentration determined in accordance 

with § 70.206 (Emphasis supplied) 

"Average concentration" 'is not defined in the Regulations, 

but it is defined in Section 202(f) the 1977 Act, 30 u.s.c. 

§ 842(f) as follows: 

For the purpose of this title, the term "average 

concentration" means a determination which accurately 

represents the atmospheric conditions with regard to 

respirable dust to which each miner in the active 

workings of a mine is exposed (1) as measured, during 

the 18 month period following the date of enactment of 

this Act, over a number of continuous production shifts 

to be determined by the Secretary and the Secretary of 

Healthv Educationv and Welfarev and (2) as measured 

thereafter" over a single shift only. unless the 

Secretary and the Secretary of Health, Education. and 

Welfare find, in accordance with the provisions of 

section 101 of the Act, that such single shift 

measurement will not, after applying valid statistical 

technigues to such measurement. accurately represent 

such atmospheric conditions during such shifto 

(Emphasis supplied) 

Section 202(f) of the Federal Coal Mine Safety Health Act of 

1969 (~the 1969 Act") as pertinentv contains language identical 

to that set forth in Section 202(f) of the 1977 Act. It reads as follows~ 

For the purpose of this subchapter, the term naverage 

concentration" means a determination which accurately 

represents the atmospheric conditions with regard to 

respirable dust to which each miner in the active 

2019 
workings of a mine is exposed (1) as measured, during 

the 18 month period following December 30, 1969, over a 

number of continuous production shifts to be determined 

by the Secretary and the Secretary of Health, 

Education, and Welfare, and (2) as measured thereafter, 

over a single shift only, unless the Secretary and the 

secretary of Health, Education, and Welfare find, in 

accordance with the provisions of Section of Section 

811 of this title that such single shift measurement 

will not, after applying valid statistical techniques 

to such measurement, accurately represent such 

atmospheric conditions during such shift. 

On July 17, 1971, the Secretary of the Interior and the 

Secretary of Health, Education, and Welfare made the finding 

required by Section 202(f) as follows: 

Notice of Findinq That single Shift Measurements of 

Respirable Dust Will Not Accurately Represent Atmospheric Conditions During Such Shift. 

Section 202(f) of the Federal Coal Mine Health and 

Safety Act of 1969 (30 u.s.c. 801; 83 Stat. 742) 

provides that the term "average concentration" means a 

determination which accurately represents the 

atmospheric conditions with regard to respirable dust 

to which each miner in the active workings of a mine is 

exposed (1) as measured, during the period ending June 

30, 1971, over a number of continuous production shifts 

to be determined by the Secretary of Health, Education, 

and Welfare, and (2) as measured thereafter, over a 

single shift only, unless the Secretary of the Interior 

and the Secretary of Health, Education, and Welfare 

findp accordance with the provisions of Section 101 

the Actp that such single shift measurement will not~ after applying valid statistical techniques to 

such measurementu accurately represent such atmospheric 

conditions during such shift, that is, the shifts 

during which the miner is continuously exposed to 

respirable dusto 

Notice hereby given thatu in accordance with 

Section 101 of the Actu and based on the data 

summarized below, the Secretary of the Interior and the 

Secretary of Health, Education, and Welfare find that 

single shift measurement of respirable dust will not, 

after applying valid statistical techniques to such 

measurement, accurately represent the atmospheric 

conditions to which the miner is continuously exposed. 

In April 1971, a statistical analysis was conducted by 

the Bureau of Mines, using as a basis the current basic 

20 20 
In April 1971, a statistical analysis was conducted by 

the Bureau of Mines, using as a basis the current basic 

samples for the 2,179 working sections in compliance 

with the dust standard on the date of the analysis. In 

accordance with the sampling procedures set forth in 

Part 70, Subc~apter o, Chapter I, Title 30, Code of 

Federal Regulations, these current basic samples were 

submitted to the Bureau over a period of time prior to 

the date the analysis was conducted. The average 

concentration of the current 10 basic samples was 

compared with the average of the two most recently 

submitted samples of respirable dust, then to the three 

most recently submitted samples, then to the four most 

recently submitted samples, etc. The results of these 

comparisons showed that the average of the two most 

recently submitted samples of respirable dust was 

statistically equivalent to the average concentration 

of the current basic samples for each working section 

in only 9.6 percent of the comparisons. Figure 1 lists 

the results of the comparisons and shows that a single 

shift measurement would not, after applying valid 

statistical techniques, accurately represent the 

atmospheric conditions to which the miner is 

continuously exposed. 

36 Fed. Re?. 13286 (July 17, 1971) (K-46 emphasis supplied) 

("1971 Notice") See, Eastern Associated Coal Corp, 7 IBMA 14, 

29 (September 30, 1976). (The Interior Board of Mine Operator's 

Appeals took cognizance of the July 17, 1971 finding made 

pursuant to Section 101 of the 1969 Act}. 

On April 8, 1990, in connection with the promulgation of the 

Respirable dust standards, 30 C.F.R. § 70.100 et seg., the 

Secretary published the following language in the Federal ~egister under the heading Discussion of Major Issues~ 

The Secretary of ithe Interior and Secretary of Health, 

Educationu and Welfare conducted continuous multi-shift 

sampling and single-shift sampling and, after applying valid 

statistical techniquesu determined that a single-shift 

zespirable dust sample should not be relied upon for 

compliance determinations when the respirable dust 

concentration being measured was near 2.0 mg/m3. 

~ Keystone Exhibit 46 (K-46) was submitted, post hearing, by 

Respondent along with a covering letteru dated September 28, 

1992, wherein Respondent requested I take judicial notice of this 

document. The Secretary in her brief, does not argue that this 

document is not a proper matter for judicial notice. Hence, I 

take judicial notice of Keystone exhibit 46, a copy of 36 Fed. 

Reg. 132866 13287 (July 17, 1971). 

2021 
Health, Education, and Welfare prescribed consecutive multishift samples to enforce the respirable dust standard. 

45 Fed. Reg. 23997 (April 8, 1980) (K-25) ("1980 comment"). 

III. Regulatory Dust Standards 

A. Operator Sampling 

On April 8, 1980, Regulations were promulgated requiring 

operators to submit five dust samples, collected on consecutive 

shifts, on a bimonthly basis for each mechanized mining unit. 

(30 C.F.R. § 207(e) the results of such sampling are reported to 

the operator and include not only "the concentration of 

respirable dust ••. for each valid sample" but also "the average 

concentration of respirable dust •.. for all valid samples" 

30 C.F.R. § 70.210(a) (3) and (4) (emphasis supplied). Any 

citation to the operator is based upon the average of the samples 

(K-23, p.3). Under 30 C.F.R. § 70.208 an operator is required to 

submit one sample every two months for each designated area. If 

that sample exceeds the respirable dust standard, the operator is 

required to take five more samples. 30 C.F.R. § 70.208(c). If 

the average of these five samples exceeds the standard, a 

citation may then be issued (K-23, p.3, K-25, p. 23992). 

In ruling on the challenges to the dust standards 

promulgated in 1980, the Court of Appeals justified its decision 

to uphold the standards, in part, upon the fact that: 

All compliance determinations are based upon the 

average dust concentration of five samples. Id. 

§§ 70.207(a), 208(c), 210(a) (4). This system minimizes 

the variability associated with the result of a single 

sample or several samples taken on a single shifto 

American Mining Congress Vo Marshallu 671 Fo2d 125lu 1259 (10th 

Ciro 1982) o 

b. MSHA Sampling 

lo Prior to July 1991 

With regard to MSHA sampling to determine compliance with 

Section 70.lOO(a) supra, the MSHA Underground Manual, (March 9u 

1978)u (Keystone 21) under the heading Safety and Health 

Technical Inspectionu does not set forth any levels of dust 

concentration that would be considered out-of compliance on the 

basis of a single sample. Alsou the MSHA handbook provided to 

inspectors dated Feb 15, 1989u (Keystone 18, June 2 Tr. 114-115), 

states in the preface that it 11 ••• sets forth procedure for MSHA 

personnel to follow when conducting health surveys, 

investigations, and inspections of underground and surface coal 

2022 
mines", and provides that "a decision of non compliance cannot be 

made on one sample" (K-18, 1-12). 

2. Spot inspections after July 1991 

In the spring of 1991, a coal Mine Respirable Dust Task 

Group ("task group") was established by the Assistant Secretary 

for Mine Safety and Health, William Tattersall, to "evaluate the 

agency's respirable dust program" (June 3 Tr. 7). The task group 

decided to conduct a study to ascertain the actual levels of dust 

that miners are exposed to (June J, Tr.8). As part of the study, 

dust results were to be obtained from a single shift. 2 

On June 27, 1991, Assistant Secretary of Labor, William J. 

Tattersall, announced the creation of a program of special spot 

inspections to audit coal mines for respirable coal dust 

sampling, dust control and training (G-18). · 

The Respirable Dust Spot Inspection and Monitoring Program 

for Underground Mines, ("Spot Inspection") program was initiated 

on July 15, 1991. The Spot Inspection program consisted of two 

parts. Part I of the program,-involved the actual spot inspection 

which included the collecting of dust samples, reviewing dust 

plan parameters and sampling procedures, and interviewing mine 

personnel. Part II of the program consisted of monitoring the 

operators' respirable dust sampling activities. Effective 

July 15, 1991 MSHA inspectors were instructed, as reflected in 

the 11Respirable Dust Spot Inspection Procedures" memorandum and 

revisions thereto issued to certain MSHA inspectors, that a 

citation was to be issued in the event of a single shift sample 

at or exceeding th~ levels set forth in that document (G-12). 

such memoranda were not made part of the MSHA Program Policy 

Manual, and were not the subject of rulemaking. 

The Respirable Dust Spot Inspection Procedures sets forth a 

table, prepared by Thomas Tombu a member of the task group who is 

the Chief of the Dust Divisionu Pittsburgh Safety and Health 

Technology Center. The table is based upon a statistical 

analysis, which led Tomb to conclude that if a single dust sample 

yieldsff at a minimum, the level of dust set forth in the table 

2 A question arose in the task group as to what an inspector 

should do if, when collecting samples as part of the spot 

inspection monitoring process, the data showed a "very high 

probability" that the dust exposure exceeded 2.0 mg/mJ. (June J, 

Tr.57) It was decided that in these circumstances a citation 

should be issued. 

2023 
i.e. 2.5 mg/m3, then there is a 95 percent level of confidence 

that the regulatory standard of 2.0 mg/m3 was exceeded. 3 

Pursuant to the CBE spot inspection program, single shift 

samples obtained by Cousins on August 13, 21, and September 20, 

1991, contained the allowing levels of dust respectively. 4.4 

mg/mJ, 2.8 mg/m3 and 4.7 mg/m3. Cousins applied the figures in 

the table set forth in the Respirable Dust Spot Inspection 

frocedures, and issued citations alleging, in each instance, 

violations of the Regulatory standard i.e. average concentration 

in excess of 2.0 mg/m3. 

IV. Analysis and Discussion 

In essence, Respondent and Amicus seek dismissal of these 

citations on the ground that the spot inspection program, on 

which they are predicated, is invalid, as inter alia, the policy 

requiring the issuance of citations based on results of a single 

sample, was adopted without rulemaking. On the other hand, the 

Secretary argues, inter alia, that the spot inspection program, 

including the issuance of citations based on single samples, has 

been authorized by Congress, is grounded upon accepted 

scientific principles, and is consistent with the sampling 

strategy of Federal agencies. For the reasons that follow, I 

find that rulemaking was required to institute a new policy of 

issuing citations based on a single sample. Since the new policy 

was not adopted through rulemaking, it is not valid. Thus, 

citations issued pursuant to this policy are also invalid. It 

thereafter is not necessary to decide whether the statistical 

analysis underlying the new policy provides a reasonable basis 

for the policy. Even if this analysis is reasonable, it can not 

support a change in testing policy that has not been promulgated 

subject to rulemakingo 

Also my finding 0 that the single sample program is not 

valid as it was not adopted by irulemaking 0 is dispositive of this 

case. Thus 0 it is not necessary to decide the balance of the 

issues raised by the partieso 

Ao The 1971 Noticer 36 Fedo Rego supra 

Under Section 202(f) of the 1977 Act 0 suprau a 

determination of the '

9average concentrationg' of respirable dust 

for purposes of ascertaining compliance with the mandatory 

standard of exposure to less than 2o0 mg/m3 (Section 202(b) 

3 In this connection, Tomb testified that each of the three 

single full~shift samples generated greater than a 97.5 percent 

"confidence" that the average concentration of the dust in the 

mine atmosphere for the sampled shift exceeded the dust standard. 

(June 3, Tr. 90, 166-167) 

2024 
supra, and Section 70.lOO(a) supra, is based on a measurement 

over a single shift unless the Secretary of Interior and Health, 

Education and Welfare find 11 ••• in accordance with the provisions 

of Section 101 of the Act, that such single shift measurement 

will not, after applying valid statistical techniques to such 

measurements, accurately represent such atmosphere condition 

during such shift" .. 

Thus, under the 1977 Act, the Secretary can cite an operator 

for a violation of the dust standard based on a single shift 

sample, unless the Secretary and the Secretary of Health 

Education and Welfare find that a single shift sample will not 

accurately represent such atmospheric conditions during such 

shift. Such a finding has been made in the 1971 Notice. 

The 1971 Notice, 36 Fed. Reg. supra, is entitled Notice of 

Finding that Single Shift measurement of Respirable Dust will not 

Accurately Represent Atmospheric Conditions During such shift. 

It clearly and unambiguously provides as follows: 

Notice is hereby given that in .. ,accordance with section 

101 of the Act, and based on the data summarized below, 

the Secretary of the Interior and the Secretary of 

Health, Education, and Welfare find that single shift 

measurement of respirable dust will not, after applying 

valid statistical techniques to such measurement, 

accurately represent the atmospheric conditions to 

which the miner is continuously exposed. 

Thus, reading the 1971 Notice along with Section 202(b) (2) 

supra, and Section 202(f), supra, it appears that the Secretary 

is bound not to make dust determinations based on a single shift 

sample. 

In essence 0 the Secretary argues that the 1980 commentu 

45 Wedo Reg" supra, supersedes the 1971 Noticeu 36 Fed Rego 

suprau inasmuch as the former contains a finding that only single 

shift samples 01 near" 2. o mg/m3 are not reliable. 4 The 1980 

The Secretary also argues that my order of May 5 0 1992 0 

denying Respondent 9 s Motion for summary Decision, constitutes the 

law of the case insofar as I noted that the Secretary had not 

made an explicit finding in accordance with Section lOl(a) of the 

Actu as to what dust concentrations are to be considered "near" 

2.0 mg/m3, and found that 69 oooit has not been established that 

the Secretary has made a finding, in accordance with Section 

lOl[a) of the Act concerning the unreliability of single shift 

samples in general." Order of May 5, 1992 at 3-4. 

The order was based on the record before me at the time 

which did not contain on any reference by either party, to the 

2025 
comment does not explicitly refer to the 1971 Notice or its 

findings. Specifically, it does not explicitly indicate that it 

is superseding the 1971 Notice. Since the 1971 Notice contains 

findings made pursuant to Section 101 supra, based on "valid 

statistical techniques" as required of Section 202(f) supra, it 

is clear that it can not be rescinded or superseded without prior 

notice of the proposed rule through publication in the Federal 

Register and the opportunity for the public to comment (5 u.s.c. 

§ 553 (b) (d)). In the 1971 Notice (36 Fed. Reg, supra), it is 

explicitly stated that "notice is hereby given" that, based on 

reliable statistical techniques, the Secretary of the Interior 

and the Secretary of Health, Educational and Welfare "find" that 

a single shift measurement will not accurately represent the 

atmospheric conditions to which a miner is exposed. In contrast, 

the language of the 1980 comment, 45 Fed Reg. supra, under the 

heading Discussion of Major issues, does not explicitly state 

that it is giving notice that a finding is made with regard to 

Section 202(f) of the Act. In contrast, it refers to the fact 

that the Secretary of the Interior, and the Secretary of Health, 

Education, and Welfare, 0 conducted" sampling, and after applying 

statistical techniques, "determined'' that a single shift should 

not be relied on when the dust concentration was near 2.0 mg/m3. 

Thus, the language is ambiguous. Since the operative verbs, 

conducted, and getermined are in the past tense, it might be 

concluded that this comment is a reference to the earlier 1971 

finding, rather than a new contemporaneous finding based on valid 

statistical techniques. In this connection, I note that the 1980 

comment does not define the term "near 2.0 mg/m3" nor does it set 

forth any statistical data or techniques that were applied in 

making the determination referred to. I thus find that the 

Secretary has not met its burden of establishing that the 1971 

Notice was superseded by the 1980 comment. 5 

contijdo 

1971 Notice (36 Fed Reg. supra)o As such the order is not the 

law of the case with regard to the entire record presently before 

me 0 including the 1971 Notice. (36 Fed. Reg. supra). 

:;. The Secretary also argues that the 1971 Notice 0 35 FecL 

Reg 0 supra~ should be accorded no weightu inasmuch as the instant 

single shift sampling strategy "bears no resemblance to the 

Bureau of Mines data discussed in the 1971 Federal Register 

Notice og {Post Hearing Briefc at 25). In other words, it is 

argued that vaooothe type of measurement discussed in the 1971 

Federal Register Notice not at all like this single shift 

measurement at issue in this case". 

I find that any deficiencies in the statistical data relied 

on by the Secretaries of Interior, Health, Education and Welfare 

as set forth in the 1971 Notice (K-25) do not negate the fact 

2026 
Therefore, if the 1971 Notice has not been superseded, then 

applying Section 202(f) supra, it might be concluded that a 

measurement of the "average concentration" can not be made over a 

single shift. 6 

B. The Requirement for Rulemaking 

The finding in 1971, 36 Fed. Reg. supra, that compliance 

determinations can not be based on a single sample, was 

explicitly issued as rulemaking under Section 101 of the 1969 

Act, as specifically required by Section 202(f) (K-46). Hence, 

if rulemaking is required and was utilized in making such a 

finding, it is clear that rulemaking is similarly required to 

rescind the 1971 finding. As discussed above, infra IV(A), the 

evidence does not clearly establish that the 1971 finding was 

explicitly by rescinded by rulemaking, i.e., the 1980 comment, 

45 Fed. Reg. suprg. 

In addition, for the reasons that follow, I find that 

rulemaking pursuant to the APA was required to promulgate a 

program providing for complianpe determinations based on a single 

sample. Notice and comment are required by the APA when an 

agency is engaged in rulemaking defined as the "agency process 

for formulating, amending, or repealing a rule." 5 u.s.c. § 

551(5). A "rule" is broadly defined by the APA as: "the whole or 

a part of an agency statement of general or particular 

applicability and future effect designed to implement, interpret, 

or prescribe law or policy .••. "5 u.s.c. § 551(4). A wide 

variety of statements issued by agencies meet this broad 

definition. See, e.g., Batterton v. Marshall, 648 F.2d 694, 

704-705 {D.C. Cir. 1980) (where the agency's selection of a 

statistical methodology was found to constitute a rule under the 

APA)3 Pickus v. United States Bd. of Parole, 507 F.2d 1107, 

~) cont. ad c 

that they made an explicit unequivocal finding, in accordance 

with Section 202(f) supra of the 1969 Actu that a single shift 

measurement will not accurately reflect the atmospheric 

conditions to which miners are exposedo 

Due to the ambiguity of the 1980 comment. 45 Fed. Reg. 

supraQ as to whether it was intended to supercede the 1971 

finding as it pertains to dust concentrations not "near" 2.0 

mg/m3u I do not base my decision regarding the validity of single 

sample testing solely on a finding that the 1971 notice was not 

superceded by the 1980 comment. Instead, for the reasons that 

follow, I conclude that a program requiring the issuance of 

citations based on single safe testing is not valid, as it was 

not put into effect through APA rulemaking. 

2027 
1112-13 (D.C. Cir. 1974) (Board of Parole's guidelines limiting 

discretion and affecting private interests deemed substantive, 

not interpretive). Prows v. United States Department of Justice, 

704 F. Supp. 272 (D.D.C. 1988), aff'd 938 F2d 274 (D.C. Cir. 

1991) (where the Federal Bureau of Prisons• issuance of a program 

statement affecting the financial obligations of prison inmates 

was a rule subject to notice and comment requirements): Waste 

Management, Inc. v. EPA, 669 F. Supp. 536, 538 (D.D.C. 1987) 

(where the deferral of ocean incineration permits pending the 

promulgation of new regulations was found to constitute a rule 

under the APA) • 

The Commission, in Drummond Company Inc., 14 FMSHRC 661 

(May 5, 1992) recently addressed the issue of whether MSHA was 

required to comply with the APA in adopting its policy concerning 

"excessive history" penalties. In Drummond, supra, the 

Commission addressed a program policy letter (PPL) which had been 

issued to all operators. The Commission described the test for 

whether an agency must comply with the APA as follows: 

Advance notice and,public comment are required for 

rules that are substantive or legislative, and thus 

bear the force of law. ,lg. In the words of the 

Batterton Court, legislative rules manifest the 

following qualities: 

Legislative rules • • • implement 

congressional intent; they effectuate 

statutory purposes. In so doing, they grant 

rights, impose obligations, or produce other 

significant effects on private interests. 

They also narrowly constrict the discretion 

of agency officials by largely determining 

the issue addressedo Finallyv legislative 

:rules have substantive legal effect" 648 

Fo2d at 701-02 (footnote omitted). 

14 FMSHRC at 684. 

The Commissionv in Drummond, supra in analyzing whether the 

program policy letter at issue was a substantive rule requiring 

compliance with the APA took cognizance of the ntwo criteria" 

test set forth by the o.c. Circuit in American Bus Ass 1 n v. 

United States 627 F.2d 525, 529 (D.C. Cir. 1980) quoting Texaco 

Vo FPCu 412 F.2d 740, 744 (3d Cir. 1969). The Commission in 

Drummond supra, noted that the first criteria is whether the 

pronouncement acts prospectively, and the second criteria is 

GQo •• whether a purported policy statement genuinely leaves the 

agency and its decision makers free to exercise discretion" 

14 FMSHRC supra at 686 quoting American Bus Ass'n, supra at 529. 

2028 
Applying these principles, the Commission in· Drummond, 

14 FMSHRC, supra, held that a policy letter, setting forth a 

program for increased penalties based on excessive history, affects private interests in a substantial and present manner, 

and as such is subject to rulemaking. 

Applying the·above analytical framework to the case at bar, 

I agree with the argument of amicus that "An agency statement 

that establishes an entirely new basis for the issuance of a 

citation unquestionably meets the APA's expansive definition of a 

rule. This is particularly true when the existing standards and 

MSHA's longstanding practices and procedures base compliance determinations upon multiple samples 11 • 7 

Specifically, prior to the implementation of the spot inspection program, a citation would not have been issued based 

on a single shift sample. In contrast, the spot inspection 

program unequivocally deprives an inspector of discretion as it 

clearly mandates that a citation shall be issued of a single sample measures exceeds the appropriate value set forth in a 

table provided to inspectors '{GX lZ P.2). In the event such a 

citation is issued, as in the case at bar, the operator becomes 

liable to pay a civil penalty. Prior to the spot inspection 

program, no such liability would have been incurred as no 

citations were issued on the basis of a single sample. Hence, 

the spot inspection program definitely affects private interests 

in a substantial manner. 8 

Therefore since Petitioner did not engage in APA rulemaking in setting forth its procedures for the spot inspection program requiring citations to be is.sued based on a single shift sample, the procedures are not valid, and the citations issued pursuant 

to these procedures are to be vacated. 

7 In this connection, I note, as set forth by amicus, that 

u

9

An operator is required to submit five samples every two months 

for each MMU (mechanized mining unit) on which compliance is 

determined. ~, C.F.R. § 70.2070 It submits one sample for 

each designated area. If such samples exceed the standard, it is 

required to submit five additional samples on which compliance is 

determined. see 3 C.F.R. § 70.208(c)." (Parenthesis added.) 

8 For these reasons I reject Petitioner's argument that the 

spot inspection program only changes the "manner" in which the 

Secretary will prove a violation, and does not violate the 

operator's substantive rights. 

2029 
ORDER 

It is ORDERED that Docket Nos. PENN 92-114 and PENN 92-119 

be DISMISSED. It is further ORDERED that the following Notices 

of Contests be sustained: Docket Nos. PENN 91-1454-R, 

PENN 91-1480-R, and PENN 92-54-R. It is further ORDERED 

that Citation Nos. 3687890, 3687888, and 3687895 be DISMISSED. 

£~ Avram Weisberger 

Administrative Law Judge 

Distribution: 

R. Henry Moore, Esq., Buchanan. Ingersoll, 57th Floor, USX Tower, 

600 Grant Street, Pittsburgh, PA 15219 (Certified Mail) 

Edward H. Fitch, Esq., Carl c. Charneski, Esq., Office of the 

Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, 4th 

Floor, Arlington, VA 22203 (Certified Mail) 

Edward M. Green, Esq., American Mining congress, 1920 N street 

N.W., Suite 300, Washington, DC 20036-1662 (Certified Mail) 

nb 

2030 
PBDBRAL KDIB SAl'BTY DD HBAL'l'B ltBV:IBW' COJOD:SSJ:OJI 

OFFICE OF ADMINISTRATIVE LAW JL.oGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HELEN MINING COMPANY, 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 92-704 

A.O. No. 36-00926-03946 

Docket No. PENN 92-705 

A.O. No. 36-00926-03947 

Docket No. PENN 92-537 

A.O. No. 36-00926-03937 

Docket No. PENN 92-536 

A.O. No. 36-00926-03936 

: Docket No. PENN 92-565 

A.O. No. 36-00926-03940 

: 

Docket No. PENN 92-732 

A.O. No. 36-00926-03951 

Docket No. PENN 92-789 

A.O. No. 36-00926-03955 

~ Docket No. PENN 92-641 

A.O. No. 36-00926-03942 0 

0 

g Docket No. PENN 92-439 

A.Oo No. 36-00926-03929 

g Docket No. PENN 92-419 

(partial settlement) 

A.O. No. 36-00926-03925 

Docket No. PENN 92-664 

A.O. Noo 36-00926-03945 

Docket No. PENN 92-538 

A.O. No. 36-00926-03938 

Docket No. PENN 92-521 

: A.O. No. 36-00926-03932 

: (settled on 9/22/92) 

2031 
HELEN MINING COMPANY, 

Contestant 

v. 

SECRETARY OF IABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

: Docket No. PENN 92-597 

: A.O. No. 36-00926-03941 

: 

: Docket No. PENN 92-564 

: A.O. No. 36-00926-03939 . . 

: Docket No. PENN 92-534 

: A.O. No. 36-00926-03933 . . Docket No. PENN 92-535 

: A.O. No. 36-00926-03935 . . 

0 

. 

. . 

. . 

. . 

. . 

. . 

0 

0 

NOTICE OF CONTEST 

PROCEEDINGS 

Docket No. PENN 92-407-R 

Citation No. 3488593; 2/11/92 

Docket No. PENN 92-408-R 

Order No. 3488594: 2/13/92 

Docket No. PENN 92-409-R 

Order No. 3488670; 2/4/92 

Docket No. PENN 92-410-R 

Order No. 3488672; 2/8/92 

Docket No. PENN 92-411-R 

Citation No. 3488933; 2/12/92 

Docket No. PENN 92-412-R 

Order No. 3488595; 2/12/92 

Docket No. PENN 92-413-R 

Citation No. 3488854v 1/27/92 

Docket No" PENN 92-414-R 

Order No. 3488677; 2/13/92 

Docket No. PENN 92-433-R 

Citation No. 3488900; 3/26/92 

Docket No. PENN 92-434-R 

Citation No. 34889341 3/17/92 

Docket No. PENN 92-435-R 

Order No. 3708390; 3/28/92 

Docket No. PENN 92-436-R 

Order No. 3708391; 3/28/92 

2032 
DECISION APPROVING SETTLEMENT 

Appearances: Edward H. Fitch, Esq., Arlington, VA, 

for Petitioner; 

J. Michael Klutch, Esq., Pittsburgh, PA, 

for Respondent. 

Before: Judge Fauver 

These consolidated cases were brought under the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 801 et seg. 

The parties have moved for approval of a comprehensive 

settlement disposing of all the issues in these cases. The 

settlement includes agreed civil penalties for specified citations 

or orders and the withdrawal of others, and the withdrawal of the 

corresponding actions for review of citations or orders. 

I have reviewed the documentation submitted in support of the 

motion and conclude that the motion is consistent with the criteria 

for assessment of civil penalties in § llO(i) of the Act. 

,ORDER 

WHEREFORE IT IS ORDERED that: 

1. The motion for approval of settlement is GRANTED. 

2. Within 30 days of the date of this Decision, Respondent 

shall pay to the Secretary the approved civil penalties of 

$22,732.00. 

3. The approved settlement constitutes a final disposition of 

all the cases, which upon payment of the above civil penalties are 

DISMISSED a 

Dist:ributiong 

tU4f..,.,;., =r-6W~~ William Fauver 

Administrative Law Judge 

Edward Ho Fitchu Esq.u Office of the Solicitor, U.S. Department of 

Laboru 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Gayle M. Green, Esq.u Mark V. Swirsky, Esq., Nancy F. Koppelman, 

Esq. u Linda M. Henryu Esq. u Anita D. Eve Wright, Esq., H. P. Baker, 

Esq., Joseph To Crawford, Esq., Howard K. Agran, Esq., Myrna 

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

14480-Gateway Building, 3535 Market street, Philadelphia, PA 19104 

(Certified Mail) 

2033 
J. Michael Klutch, Esq., Polito and Smock, Suite 400, Four Gateway 

center, Pittsburgh, PA 15222-1207 (Certified Mail) 

Ronald B. Johnson, Esq., Volk, Frankovitch, Anetakis, Recht, 

Robertson & Hellerstedt, 3000 Boury Center, Wheeling, WV 26003 

(Certified Mail) 

Robert H. Stropp, Esq., UMWA, 900 15th Street, NW, Washington, o.c. 

20005 (Certified Mail) 

Mr. Robert Jordan, Miner's Representative, P. o. Box 181, 

Saltsburg, PA 15681 (Certified Mail) 

/fcca 

2034 
PBDBRAL JaRB 81\PBTY DD BBALTB RBVJ:BW COJDUSSJ:OJI 

J. BRADLEY MILLER, 

Complainant 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

0 

0 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. PENN 92-368-DM 

NEMD 92-01 

WHITE'S PELLETIZING CO., : 

Respondent 

Appearance: 

Before: 

ORDER OF DISMISSAL 

Madelyn P. Nix, Esq., Lancaster, PA, 

for Respondent_._ 

Judge Fauver 

This case was called for hearing at Lancaster, Pennsylvania, 

on November 10, 1992, pursuant to notice of hearing. Counsel for 

Respondent appeared, but Complainant did not appear for the 

hearing. Since the date of the hearing, Complainant has not 

submitted any explanation for his failure to appear at the 

scheduled hearing. 

Accordingly, it is ORDERED that this case is DISMISSED for 

failure of Complainant to prosecute his claim. 

Distribution~ 

~~~ 

1 rll 1 I ") 

-r~Yl!iY\ William Fa~ver Administrative Law Judge 

Mr. J. Bradley Miller 0 5357 Lincoln Highway 0 Po Oo Box 106 0 Gap, VA 

17527 (Certified Mail) 

Mro Carl Do McKinney 0 Area Manageru Whitevs Palletizing Co. 0 Drawer 

1300 0 St. Paul 0 VA 24283 (Certified Mail) 

Madelyn P. Nix, Esq., Hartman, Underhill & Brubaker, 221 East 

Chestnut Street, Lancaster, PA 17602 (Certified Mail) 

/fcca 
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. 

JIM WALTER RESOURCES, INC.u 

Respondent 

: CIVIL PENALTY PROCEEDINGS . . Docket No. SE 92-226 

A.C. No. 01-00758-03838 

: No. 3 Mine 

Docket No. SE 92-227 

: A.C. No. 01-01247-03957 

~ Docket No. SE 92-228 

: A.C. No. 01-01247-03958 

: Docket No. SE 92-230 

: A.C. No. 01-01247-03959 . . 

: Docket No. SE 92-238 

A.C. No. 01-01247-03962 u 

. 

: No. 4 Mine . . 

: Docket No. SE 92-239 

: A.C. No. 01-01322-03837 

0 

0 

Docket No. SE 92-250 

AoCo NOo 01-01322-03839 

Noo 5 Mine 

: Docket No. SE 92-219 

A.C. No. 01-01401-03866 

0 

0 

Docket No. SE 92-229 

A.C. No. 01-01401-03871 

Docket No. SE 92-241 

: A.Co No. 01-01401-03872 

: Docket No. SE 92-242 

g A.C. No. 01-01401-03873 0 

. 

~ Docket No. SE 92-243 

: A.C. No. 01-01401-03874 

: Docket No. SE 92-251 

: A.C. No. 01-01401-03875 

2036 
Appearances: 

Before: 

Docket No. SE 92-272 

A.C. No. 01-01401-03878 

Docket No. SE 92-278 

A.C. No. 01-01401-03879 

Docket No. SE 92-296 

A.C. No. 01-01401-03883 

Docket No. SE 92-300 

A.C. No. 01-01401-03882 

Docket No. SE 92-301 

A.C. No. 01-01401-03884 

Docket No. SE 92-342 

A.C. No. 01-01401-03891 

No. 7 Mine 

DECISION 

William Lawson, Esquire, Office of the Solicitor, 

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

for Petitioner; 

R. Stanley Morrow, Esq., Mining Division, 

Jim Walter Resources, Inc., Brookwood, Alabama, 

for Respondents 

Judge Melick 

These cases are before me upon petitions for assessment 

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

Safety and Health Act of 1977 (the "Act")o At hearingsr 

Petitioner filed motions to approve settlement agreements 

and to dismiss the caseso A reduction in total penalties 

from $18,125 to $10,754, the vacation of Citation Nos. 3191450, 

3191451, 3191544, 3191574, 2804674 and 3008118, and removal 

of the "significant and substantial" designations for the 

specified citations have been proposed" I have considered 

the representations and documentation submitted in these 

cases before and at hearings, and I conclude that the 

proffered settlement is appropriate under the criteria 

set forth in Section llO(i) of the Acto 

20 37 
WHEREFORE, the motion for approval of settlement 

is GRANTED, including the Secretary's removal of her 11 significant and substantial" findings as requested, and 

it is ORDERED that Respondent pay a penalty of $10,754 

within 30 days of this order. 

Distribution: 

\ 

!. ' 

Gary M 

Adminis 

703-75? 

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

of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 

35203 (Certified Mail) 

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., 

P.O. Box 133, Brookwood, AL 35444 (Certified Mail) 

/lh 

2038 
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, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 92-248 

A.C. No. 01-00515-03822 

v. Mary Lee No. 1 Mine 

DRUMMOND COMPANY, INC., 

Respondent 

Docket No. SE 92-253 

A.C. No. 01-00821-03720 

Mary Lee No. 2 Mine 

DECISION 

Appearances: William Lawson., Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, 

for the Petitioner; J. Fred McDuff, Esq., 

Drununond Company, Birmingham, Alabama, for 

Respondent in Docket No. SE 92-248; and 

Before: 

David M. Smith, Esq., Maynard, Cooper, Frierson 

and Gale, Birmingham, Alabama, for Respondent 

in Docket No. SE 92-253 

Judge Melick 

These consolidated proceedings are before me upon the 

petitions for civil penalties filed by the Secretary of 

Labor pursuant to Section 105(d) of the Federal Mine Safety 

and Health Act of 1977v 30 UoSoCo Section 801P et seqop the 99 Act 11 charging Drununond Company u Inc o ( Drununond) with 

violations of mandatory standardso 

Docket No. SE 92-253 

At hearings Drununond admitted the violation charged in 

the one citation at issuer Citation No. 2805497u and conceded 

the inspector's findings relating to the violation. Drununond 

thereafter challenged only Section 104(b) Withdrawal Order 

Noo 30087~1? issued for an alleged failure to abate that 

citationo At the conclusion of the Secretary's case-in-chief, 

1 Section 104(b) provides as follows: 

If, upon any follow-up inspection of a coal 

or other mine, an authorized representative of the 

Secretary finds (1) that a violation described in a 

citation issued pursuant to subsection (a) has not 

been totally abated within the period of time as 

2039 
Drummond moved for a directed verdict arguing that based on 

the Secretary's case alone, it was clear that the violation 

charged was fully abated at the time the Section 104(b) order 

was issued and that the Secretary was without authority under 

that section to require it to take the additional specified 

action beyond what was necessary to remedy and correct the 

violative condition cited. In a bench decision, the motion 

was granted. That decision is set forth below with only nonsubstantive correction. 

The motion for directed verdict is granted. The 

admitted citation underlying the Section 104(b) order 

in this case provides as follows: 

The operator's approved ventilation 

system, methane and dust and control plan, 

was not being followed in the 40 north 

section in that the following conditions 

were observed in the three right entry 

face where the continuous miner was cutting 

coal; One, they had_ taken a 40 foot cut out 

of the left side of the face prior to 

cutting the right side. Two, this was the 

first cut inby the crosscut, and the line 

curtain was 25 feet back from the last row 

of roof bolts. Three, there was seven feet 

of the wing dropout by the crosscut had 

been rolled up, therefore short circuiting 

the air. Four, there was only 145 feet 

per minuit [sic] at the end of the line 

curtain. The foreman stated he took a 

reading 'and had 245 feet per minuit [sic]. 

There were no notes to support this reading. 

originally fixed therein or as subsequently extended, 

and (2) that the period of time for the abatement 

should not be further extended, he shall determine 

the extent of the area affected by the violations, 

and shall promptly issue an order requiring the 

operator of such mine or his agent to immediately 

cause all persons, 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. 

2040 
The Secretary acknowledges that immediately 

upon the issuance of the citation the first three 

of the cited conditions were abated and that, therefore, they are not at issue. It is alleged by the 

Secretary that only the fourth condition was not 

abated when the order was issued on July 30, 1991, 

and was not abated until sometime later when the 

operator met certain additional criteria required 

by the Secretary. 

The order reads as follows: 

The four of the five places examined 

did not have the required amount of air 

to cut 40 foot cuts. The two shifts prior 

cut 40 foot cuts. The day shift cut four 

places 40 feet, and the evening shift cut 

two places 40 feet. Therefore, it is 

determined that the required air quantity 

and velocity is not being maintained so as 

to cut 40 foot cuts,pontinuously which is 

the operator's mining plan. Therefore, the 

time of abatement cannot be extended. 

Nowhere does the order charge, nor is it 

alleged, that the specific conditions set forth 

in the underlying citation, and which caused the 

violation in that citation, continued to exist 

once the inspector issued that citation. Three 

of the four conditions were immediately abated, 

mining was halted in the cited entry, and there 

is no evidence of any additional mining in the 

cited entry that was not in full compliance with 

the ventilation plan. For that matter there are 

no allegations nor any evidence that any c~ts were 

thereafter taken in violation of the plan. 

More particularly, Section 104(b) of the Act 

provides, in part, that 'if upon any follow-up 

inspection of a coal or other mine an authorized 

representative of the Secretary finds one, that a 

2 The ventilation plan permitted the operator to 

take 20 foot cuts with only 200 linear feet of air per minute 

at the end of the line curtain and 40 foot cuts with 300 linear 

feet of air per minute at the end of the line curtain. The 

operator is in no way required by the plan to take 40 foot 

cuts even if it meets the higher ventilation requirements. 

2041 
violation described in a citation issued pursuant 

to Subsection (a) has not been totally abated 

within the period of time as originally fixed 

therein or as subsequently extended •.. ' 

That is as far into Section 104(b) as I need 

to go in this case. I find that on the facts of 

this case and considering the ventilation plan 

in effect that, at the time the citation was 

written, the violation that was specifically 

charged was, indeed, abated in that the violative 

conditions in the citation no longer existed. 

Since mining in the cited 40 foot cut was halted 

upon the issuance of the citation, and no mining 

was resumed in violation of the ventilation plan, 

the citation was clearly abated at that time. 

There was nothing more for the mine operator then 

to do to be in full compliance with its ventilation 

plan and so long as the operator did not violate 

the ventilation plan thereafter, it could not3be 

deemed to have failed to.abate the violation. 

Under the circumstances, I am going to grant 

the motion and dismiss the Section l04(b) order 

that is before me. 

Docket No. SE 92-248 

In a motion for settlement considered at hearing in 

this case, Petitioner proposed a reduction in penalty from 

$1,000 to $750 for the one order at issue, Order No. 2806102. 

I have considered the representations and documentation 

submitted in the case and conclude that the proffered 

settlement is appropriate under the criteria set forth in 

Section llO(i) of the Act" An appropriate order directing 

payment of the proposed penalty will be incorporated in the 

following Order. 

3 The Secretary is without authority under Section 

104(b) to compel performance of additional mining activities 

or create new requirements beyond what is necessary to abate 

the precise violation charged. In order to fully abate the 

citationp the inspector apparently wanted the operator to 

take 40 foot cuts in his presence with 300 linear feet of air 

per minute at the end of the line curtain. However, nothing 

in the ventilation plan requires the operator to take such 

40 foot cuts and it may continue to legally take 20 foot cuts 

with lesser ventilation. 

2042 
ORDER 

Docket No. SE 92-248 

Order No. 2806102 is affirmed and Drununond Company, Inc. 

is hereby directed to pay civil penalties of $750 for the 

violation charged therein within 40 days of the date of this 

decision. 

Docket No. SE 92-253 

Citation No. 2805497 is affirmed and Drununond Company, 

Inc. is directed to pay civil penalties of $910.00 for the 

violation 

decision. 

charged therein within 40 

Section 104(b) Order NL days of the dat of this 

3008781 is vaca ed. 

lJ1~ Law udge ' 

i 

Distribution: j 

William Lawson, Esq., Office of the ~olicitor, of Labor, Suite 201, 2015 Second Avenue North, 

35203 (Certified Mail) 

U.S. Department 

Birmingham, AL 

J, Fred McDuff, Esq., P.O. Box 10246, Birmingham, AL 35202 

Certified Mail) 

David Mo Smithp Esq., Maynard, Cooperp Frierson and Gale? 

2400 Amsouth/Harbert Plaza, 1901 Sixth Avenue North, Birmingham, 

AL 35203 (Certified Mail) 

I 

2043 
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) 

on behalf of 

nc 

I''. v./ ,, 

Ralph J. Thorn, 

Complainant 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 92-1010-D 

MORG CD 92-03 

Dobbin Mine 

ORDER APPROVING SETTLEMENT AND DISMISSING CASE 

Before: Judge Barbour 

This proceeding concerns a complaint of discrimination filed 

by the Secretary of Labor ("Secretary") on behalf Ralph J. Thorn, 

Complainant, against Island Creek Coal Co. ("Island Creek") 

pursuant to Section 105 of the Federal Mine Safety and Health Act 

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

alleges that the Complainant was illegally discriminated against 

on February 5, 1992, when a written warning was unlawfully placed 

in his personnel employment file. Island Creek filed a timely 

answer denying that it had violated Complainant's Section 105(c) 

rights and the parties engaged in pre-trial discovery. Following 

the scheduling of this matter for hearing, counsels for the 

parties settled the caseu and counsel for the Secretary has 

submitted a motion to approve the settlement. The motion is 

signed by counsels and the Complainant and sets forth the parties 

agreements with respect to resolving the matter. In particularu 

it states~ 

1. That Island Creek agrees to clear Complainant's 

employment record of all references pertaining to any incidents 

occurring from February 4 through February 14u 1992, at 

the Dobbin Mine; that Island Creek specifically agrees to 

immediately expunge the disciplinary warnings which were dated 

February 5f 1992 by Michael Nestor and February 14u 1992 by 

Richard Perandou and any references to such warnings, from any 

and all personnel files, payroll files, mine files, supervisors 9 

notes, microfilm/microfiche files, and any other records 

maintained by Island Creek, Island Creek Corporation, or by any 

of their agents; and that Island Creek further agrees to mail the 

original copies of the warnings to the Secretary within ten (10) 

days of the issuance of the Order approving settlement. 

2044 
2. That Island Creek agrees that it shall not assert, rely 

upon, or otherwise consider the disciplinary actions taken in 

February 1992 in any future disciplinary action, personnel 

decision, or other action involving the Complainant. 

3. That Island Creek asserts that it is complying and will 

continue to comply with Section 105(c) of the Mine Act, agrees 

that it will not discharge or in any other manner discriminate 

against or otherwise interfere with the exercise of the statutory 

rights of any miner, representative of miners, or applicant for 

employment in any coal or other mine subject to the Mine Act 

because such miner, representative of miners, or applicant for 

employment had filed or made a complaint under or related to the 

Mine Act, including a complaint notifying the Respondent, the 

Respondent's agent, 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 of the Mine Act, or 

because such miner, representative of miners, or applicant for 

employment has instituted or caused to be instituted any 

proceeding under or related tothe Mine Act or has testified or 

is about to testify in any such proceeding, or because of the 

exercise by such miner, representative of miner, or applicant for 

employment on behalf of himself or others of any statutory right 

afforded by the Mine Act. 

4. That Island Creek agrees to pay a civil penalty of one 

thousand ($1,000) within thirty (30) days of the issuance of the 

Order approving settlement. 

5. That Island Creek agrees to post a copy of the Motion 

To Approve Settlement and this Order approving settlement at the 

Dobbin Mine for a period of not less than thirty (30) days. 

That the parties agree the settlement agreement shall 

be offered or used any other purpose whatsoever 1 except 

for Mine Act proceedings. 

7o That except for amounts already received by Complainant 

and the reinstatement of personal leave to the Complainant 1 the 

parties agree to bear their own costs. 

I conclude that the settlement, which compromises and 

settles this matter amicablyp is in the public interest and 

should be approved. 

ORDER 

Accordingly, Island Creek is ORDERED to comply with 

provisions 1, 2, 3, 4, and 5 of the Agreement as stated above, 

and Island Creek, the Secretary and the Complainant are ORDERED 

2045 
to comply with provisions 6 and 7 of the Agreement, as stated 

above. Island Creek shall mail to the Secretary the original 

warnings dated February 5 and February 14, 1992 within ten (10) 

days of the date of this Order and a civil penalty of ($1,000) 

within thirty (30) days of the date of this Order. Upon receipt 

of the warnings and of payment, this proceeding is DISMISSED. 

Counsels are commended and thanked for the diligent and 

responsible manner in which they have represented their 

respective clients during the course of this proceeding and in 

which they have kept me advised of the ongoing status of this 

case. 

Distribution: 

Yw~·o1 ;( c.!J~ 

Administrative 

David F. Barbour 

Law ~ Judge 

(703) 756-5232 

Heather Bupp-Hubuda, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Keith Fischler, Industrial Relations Counsel, Island Creek 

Corporation, 250 w. Main Street, Lexington, KY 40575-1430 

(Certified Mail) 

Mr. Ralph J. Thorn, Berry Street, P.O. Box 294, 

Tunnelton, WV 26444 (Certified Mail) 

/epy 

2046 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

i t'·. ,. 

d '. 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. SE 92-84-M 

A.C. No. 09-00265-05514 

v. 

Junction City Mine 

BROWN BROTHERS SAND CO., 

Respondent 

DECISION 

Appearances: Michael K. Ha~in, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, for 

Petitioner; 

Before: 

Mr. Carl Brown, Brown Brothers Sand co., Howard, 

Georgia, for Respondent. 

Judge Barbour 

STATEMENT OF THE CASE 

This civil penalty proceeding was initiated by the Secretary 

of Labor ("Secretary") against Brown Brothers Sand Company 

( u

1Brown Brothers") pursuant to Sections 105 and 110 of the 

Federal II/line Safety and Health Act of 1977 ("the Mine Act") u 

30 UoSoCo § 815 and 8200 The issues are whether Brown Brothers 

violated two mandatory safety standards for surf ace metal and 

non-metal mines and, if so, the amount of the civil penalty to be 

assessed for each violation. The case was heard in Macon, 

Georgiao 

STIPULATIONS 

At the commencement of the hearing the parties stipulated as 

follows~ 

lo Brown Brothers is subject to the Act and 

to the Commission 1 s jurisdictiono 

2. Brown Brothers is a small operator 

employing nine to ten persons. 

2047 
3. The payment of the proposed civil 

penalty assessments will not adversely 

affect Brown Brother's ability to 

continue in business. 1 

4. During the two year period prior to the 

date of the first alleged violation at 

issue, records of the Mine Safety and 

Health Administration ("MSHA") indicate 

that Brown Brothers has an history of 

five prior violations of the mandatory 

standards. 

5. Brown Brothers exhibited good faith in 

abating both of the alleged violations 

in a timely fashion. 

see Tr. 3-4. 

Mine Act 

section 

Section 104(a) 2 

DISCUSSION 

Citation No. 

3601603 

Date 

09/04/91 

30 C.F.R. 

56.14130(i) 

Citation No. 3601603 alleges that Brown Brothers failed to 

adequately maintain a seat belt on a self-propelled mobile 

equipment vehicle and that the violation was not a significant 

and substantial contribution to a mine safety hazard. The 

citation states in pertinent part: 

The seatbelt is broken on the John Deere o dozer. 

The Secretary presented her case through the testimony of 

MSHA Inspector Darrell Brennan. He confirmed that on 

September 4 1 1991, while conducting an inspection of Brown 

Brothersusand operation 0 he examined a John Deere bulldozer. 

Brennan testified that a bolt fastening the seat belt to the 

frame of the bulldozer was broken, making the seat belt 

1

The Secretary proposed a civil penalty of $20 for each alleged 

violation. 

2 30 u.s.c. § 814(a). 

2048 
inoperable. Tr. 20. Because Section 56.14130(i) requires that 

the seat belts on such equipment be properly maintained, he 

issued the citation. 3 Id. 

Brennan stated that the bulldozer had been brought out of 

the pit and was being used on level terrain. Therefore, he 

considered it unlikely that an accident would occur and an injury 

would result because of the violation. Tr. 20-21. He also 

believed Brown Brothers was negligent in allowing the violation 

to exist, but the degree of negligence was not high because mine 

personnel had not reported the condition of the seat belt to mine 

management. Id. 

Brown Brothers, through the statement of its representative 

Carl Brown, pointed out a recent instance at the mine in which a 

bull dozer had overturned and the bull dozer operator would have 

been severely injured, perhaps fatally, had he been wearing a 

seat belt and been trapped in the equipment. Tr. 24-26. 

CONCLUSIONS 

There is really no dispute about the existence of the 

violation. The defecting bolt made the seat belt unusable. 

Thus, the seat belt was not maintained in functional condition, 

and I so find. I further conclude that Brown Brothers was 

negligent in failing to properly maintain the seat belt. It is 

the operator 1 s duty to ensure that equipment at its mine is 

properly maintained. To effectively carry out that duty, an 

operator must make certain equipment defects are promptly 

observed and reported. Here, Brown Brothers failed to meet the 

mandated standard of care required of an operator. 

I also conclude that the violation was not serious. As the 

inspector rightly noted, the fact that the bull dozer was being 

operated on level ground made the chance of an injury causing 

accident extremely ikelyu and there was no testimony offered 

that the bull dozer was scheduled to be taken back to the pit or 

to be used on more hazardous ground. 4 

3

30 C.F.R. § 56.14130(i) states: 

Seat belt maintenance. Seat belts shall be maintained in functional 

condition, and replaced when necessary to assure proper performance. 

4

However, l would be remiss if I did not comment on Brown Brothers' 

apparent argument that use of a seatbelt can, in and of itself, be more 

hazardous than non-use. Undoubtedly there are instances where such is the 

case, perhaps even in the episode discussed by Mr. Brown, but common sense and 

experience dictates that in the vast majority of instances properly maintained 

and used seat belts save, not cost lives. Examples of equipment operators who 

were maimed or crushed while not wearing seat belts or while wearing seat 

(continued ... ) 

2049 
CIVIL PENALTY 

The Secretary proposed a civil penalty of $20 (Tr. 18), 

which I find appropriate in view of Brown Brother's negligence, 

the non-serious nature of the particular violation, and Brown 

Brother's stipulated small history of previous violations, its 

small size, its good faith abatement of the violation and the 

lack of effect of the penalty on Brown Brother's ability to 

continue in business. 

Mine Act 

Section 

Section 104(a) 

Citation No. 

3601604 

Date 

09/11/91 

30 C.F.R. 

56.14107(a) 

citation No. 3601604 alleges that Brown Brothers failed to guard 

a coupling on a water gun pump motor and that the violation was 

not a significant and substantial contribution to a mine safety 

hazard. The citation states: 

Exh. P-3 

The water gun pump motor drive coupling is 

not provided with a guard. 

Inspector Brennan again testified for the Secretary. He 

stated that during the course of the September 11 inspection he 

observed that the coupling connecting the drive shaft of the 

water gun pump to the water gun was not guarded. Tr. 16. The 

pump provides the pressurized water that is "shot" from the water 

gun in order to wash down sand during the mining process. The 

inspector testified that the coupling was turning fast (at an 

estimated 1,800 RPM) and that miners could have been caught in 

the unguarded part. Tr. 10. He believed that if a miner's 

clothing had become entangled in the coupling, the miner could 

have been pulled into the rotating machinery and could have 

endured lost workdays or restricted duty on account of injur 

resulting from the accident. Tr. 9, 13-14. In his opinion 1 the 

coupling was a moving machine part that pursuant to Section 

56.14107(a) should have been guarded. 5 

( ... continued) 

belts that failed thorough the lack of proper maintenance were obviously too 

numerous for the to ignore when promulgation regulations governing 

the use of self-propelled mobile equipment at surface metal and non-metal 

mines, and the rare exception but proves the rule. 

530 C.F.R. § 56.14107(a) states: 

Moving machine parts shall be guarded to protect persons from contacting 

gears, sprockets, chains, drive, head, tail, and takeup pulleys, fly wheels, 

couplings, shafts, fan blades, and similar moving machine parts that can cause 

injury. 

2050 
The inspector also believed Brown Brothers was negligent in 

allowing the violation to occur. The inspector stated he had 

been told by management personnel that the rapidly rotating 

coupling had been guarded previously by a protective "house" 

enclosing the pump motor and the coupling. However, when Brown 

Brothers replaced the pump motor with a larger unit, the house 

was not enlarged proportionally and the coupling was "pushed" 

outside the house. Id. 

Inspector Brennan stated that it was unlikely any miners 

would be injured due to the violation because there was very 

little exposure of miners to the pump motor. Tr. 9. He observed 

that the motor was located away from where miners usually worked 

and that the only time a miner would have been in its immediate 

vicinity was to start it up or to service it. Inspector Brennan 

believed that one miner probably came once a day to service the 

pump, and Carl Brown agreed this was correct. Tr. 18. 

CONCLUSIONS 

The standard's requirements are clear. As Commission 

Administrative Law Judge George Koutras has aptly stated, "The 

.•• language found in [Section] 56.14107(a) specifically and 

unequivocally requires guarding of any of the enumerated moving 

machine parts, as well as any similar moving part that can cause 

injury if contacted. The obvious intent of the standard is to 

prevent contact with a moving part." Highland County Board of 

commissioner, 14 FMSHRC 270, 291 (February 1992) (quoted with 

approval overland Sand & Gravel Co., 14 FMSHRC 1337, 1341 (August 

1992) {ALJ Barbour)). Here, there is no doubt but that the cited 

moving coupling was not guarded, and I accept the inspector's 

testimony that a miner's clothing could have become entangled in 

the turning part causing injury to the miner. Therefore, I find 

that the violation existed as alleged. 

In addition, I agree with the inspector that there was very 

little exposure of miners to the hazard posed by the violation 

and that this was not a serious violation. I also agree with his 

opinion and I find that Brown Brothers negligently failed to make 

sure that the coupling continued to be guarded when it installed 

the new pump motoro I infer from the presence of the previous 

guard t.hat Brown Brothers was well aware of what the standard 

requiredo 

CIVIL PENALTY 

The Secretary proposed a $20 civil penalty 1 which I 

Iind appropriate in view of Brown Brother 9 s negligence, the 

non-serious nature of the violation, Brown Brother's stipulated 

small history of previous violations, its small size, its good 

faith abatement of the violation and the lack of effect of the 

penalty on Brown Brother's ability to continue in business. 

2051 
ORDER 

In light of the foregoing findings and conclusions, Brown 

Brother's is ordered to pay a civil penalty of $20 for the 

violation of Section 56. 14130(i) cited in Citation 

No. 3601603 and a civil penalty of $20 for the violation of 

Section 56.14107(a) cited in Citation No. 3610604. Brown 

Brothers shall pay the civil penalties within thirty (30) days of 

the date of this Decision, and, upon receipt of payment, this 

matter is DISMISSED. 

Distribution: 

J)w ;df j)~v----- oavid F. Barbour 

Administrative Law Judge 

(703) 756-5232 

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

Labor, 1371 Peachtree Streetr N.E., Room 339, Atlanta, GA 30367 

(Certified Mail) 

Mr. Carl Brown, Brown Brothers Sand Company, P.O. Box 22, 

Howard GA 31039 (Certified Mail) 

/epy 

2052 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

0 .. c -, 

L ·. 

SECRETARY .OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 92-124-M 

A.C. No. 05-04055-05507 

v. 

Hopemore Shaft 

LEADVILLE MINING & MILLING 

CORPORATION, 

Respondent 

DECISION 

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

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

for Petitioner; 

Before: 

George E. Reeves, Esq., Denver, Colorado, 

for Respondent. 

Judge Lasher 

In this matterp MSHA, proceeding pursuant to Section llO(a) 

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

§ 820{a) seeks assessment a civil penalty for an alleged 

violation of 30 C.F.R. § 57.11050(a) pertaining to escapeways in 

underground mines. This standard provides: 

Every mine shall have two or more separate, 

properly maintained escapeways to the surface 

from the lowest levels which are so positioned that damage to one shall not lessen 

the effectiveness of the others. A method of 

refuge shall be provided while a second opening to the surface is being developed. A 

second escapeway is recommended, but not required, during the exploration or development 

of an ore body. 

2053 
contentions of the Parties 

Respondent (herein "LMMC") contends that it was engaged in 

exploration or development of the ore body and thus was not 

"required" to have a second escapeway, although such is "recommended" by the regulation. 

Petitioner (herein "MSHA") contends that LMMC was not engaged in exploration or development but rather was engaged in 

actual mining operations. MSHA also contends that the alleged 

violation was "Significant and Substantial." 

Findings 

The Section 104{a) Citation in question (No. 3633365) was 

issued by MSHA Inspector Ronald L. Beason on July 3, 1990, during 

a regular inspection, and described the alleged violation as 

follows: · 

A separate escapeway to the surface was not 

provided at the mine. A method of refuge was 

provided; but, development towards a second 

escapeway was not being conducted at the time 

of this inspection. The employees were working on the 740 West Vent drift. Blasted a 

slab round in the 640 Zinc Stope. 1990. 

In 1989 Mining was conducted on the 500 and 

700 level. In 1988 Drifting 700 level. 

An active development program must be established to comply with the standards and provide a second escape to the surfaceo 

(EXo R-4) o 

Although the allegedly violative condition was never actually abatedv MSHA does not contend that LMMC did not proceed in 

good faith to achieve abatemento The mine was closed in November 

19900 

The parties have stipulated (Court Exo 1; To 36-37) that the 

mine did not, on July 3, 1990, have two or more separate escapeways to the surface. The record is clear that the mine did have 

one escapeway--the Hopemore Shaft itself, and that a method of 

refuge was provided on the inspection day (To 95). The second 

escapeway, contemplated by Respondent, was called the Hunter 

Shaft. (T. 94-95). 

2054 
During his inspection of the Hopemore Shaft (an underground 

gold and base metals mine (T. 60, 68-69)] on July 3, Inspector 

Beason was accompanied underground by lead miner Robert Calder 

and by Oliver Jeter on the surface. The mine (Hopemore Shaft) 

had been in existence since 1985 (T. 44; Ex. 6-7). Two miners 

were working underground on the day of the inspection. (T. 59, 

60, 72). 

After Inspector Beason entered the mine, he rode the "skip" 

to the 700 level, and then went to the 740 "raise" and on to what 

is called the "640 stope" (T. 26-28, 35-36). He said a "stope" 

is not development work. (T. 42, 43, 49; Ex. G-2}. He testified 

he saw men working, but not on the second escapeway: 

I seen [sic] that they were working in the 

500 1 and 700 levels and he 600 level. I 

observed that they were working in the 640 

zinc stope while I was there and the 740 west 

drift. I did not observe any work towards a 

second escape. I didn't see in the previous 

reports and the previous citations issued for 

radon that they were in the 500 level working 

toward a second escape. (T. 36). 

I conclude from the entire record on this point that while 

miners previously may have done some work in the 500 level, they 

had not been engaged in developing a second escapeway for at 

least a year (T. 37-39, 65). 

The mine layout is shown in Exhibit R-1. The Hopemore Shaft 

(a vertical shaft) is shown thereon as a rectangle on the edge of 

square 4270 The Hopemore Shaft is intersected by four different 

horizontal tunnels called the 5 level, 6 level? 7 level, and 8 

level, and such are indicated respectively on R-1 by the colors 

yellow, green, brown, and red. 

The Inspector 1 s testimony relating to whether LMMC was engaged production (mining) was first stated in the form that it 

was his u'understandingg' (T. 71) that such was the case: 

The Inspector said that, to "gain access" to a second escape, the 

work would have to be performed from the 500 level, and that "they were not 

working on the 500 level" (T. 36), contradicting what he said in the testimony 

quoted above. He said, in further explanation, that work would have to be done 

on the 500 level to be "toward tbe Hunter shaft" ( T. 37, 42) which he was told was 

developed down 24 feet from the surface (T. 37) but was unable to confirm since 

it was timbered over (T. 38). This contemplated second escapeway, the Hunter 

Shaft, would have been 500 feet top to bottom, i.e., from the surface to the 500 

level (T. 63-64). 

2055 
A. The 740 raise, they had completed that. And 

from my discussion with them, I determined 

that they had made a slab round and was in 

the process of using a slusher to move that 

down the stope, or down the raise into the 

skip. 

Q. So where was this slab round? 

A. In the 640 stope. 

Q. And could you describe what a slab round is 

and what its significance is, if it has any? 

A. Normally when you drive a drift, you drive it 

through an ore-bearing area or waste rock, 

that type of thing. If there's some ore or 

'something where you want to widen it or something like that, you drill into the side of 

your drift and blast that off. And that's a 

slab. 

Q. Did this seem like an occasion where they 

wanted to widen it? Did it seem like they 

were blasting for the ore? 

A. It was my understanding that they were blasting 

for the ore, the skip--the car at the bottom of 

the 740 raise, we discussed that and how he moved 

the car of ore out to the shaft. And he told me 

he had to do it by hand. And we discussed that 

some. 

So it was my understanding that they were 

blasting or putting it in the raisep and he 

was pushing this car to the shaft and hoisting it to the surface. (T. 27-28). 

The Inspector said that "When they leave the levels and 

start pulling ore out of the shaft in the 640 stope, they were 

u

1

mining. ui (T. 43) . He said he was told that ore had been hauled 

up with the skip out of the shaft and taken to the mill where it 

was stored in stockpiles (T. 45, 79, 99, 102). He did not see 

the stockpile. There were three such stockpiles (T. 162). Moreover, Donald Wilson, the President of LMMC, confirmed that there 

were stockpiles of gold ore which would have been salable after 

milling and that there were approximately 15 to 20 tons of such 

ore in the stockpiles. {T. 137-138, 193, 222-223, 224}. 

2056 
Inspector Beason said that the way LMMC was interpreting the 

regulation, "you'd have the mine mined out or have a cave-in 

before you ever got a second escapeway in." (T. 101-102) 2 

Inspector Beason said development and exploration are the 

same thing: 

What you do is you drive a drift in a specific part of the mine to determine the ore 

value. You long-hole it to determine how 

much you may have in that mine. And that's 

development and exploration. (T. 46). 

In determining whether exploration or development was being 

conducted, Inspector Beason relied (T. 47) on MSHA's Program 

Policy Manual, Subpart J, pertaining to "Escapeways" (Ex. G-3) 

which provides, inter alia: 

This standard requi~es two. or more separate 

escapeways to the surf ace for every underground mine. However, a second escapeway is 

recommended, but not required, during the 

exploration or development of an ore body. 

In this connection 1 "exploration or development of an ore body" should be used in its 

narrowest sense, i.e., while an ore body is 

being initially developed, or development or 

exploration work is being conducted as an 

extension of a currently producing mine. 

Where mining occurs along a mineralized zone 

and production and development are indistinguishable as separate activities, the standard 

,shall be applied as it would to a producing 

mineo 

Inspector Beason inspected the mine's ventilation plan (Ex. 

G-6) and ·determined that LMMC was not ventilating the 500 level 

and therefore could not have been working on the 500 level" (T. 

54) o He also reviewed the locations where the last inspector had 

taken radon samples and noticed that no samples had been taken on 

the 500 level where the second escapeway would come down to (T. 

36) and concluded that work was not being performed on that level 

2 LMMC contends that the regulation does not require a second escape 

to be developed at all during the exploration or development of an ore body 

(Brief, pg. 17). But see T. 73, 74, 79, 84, 99, 102, 107-109, 137-140, 156, 162, 

168-169, 193, 222-224, indicating that mining (extracting ore) was being 

conducted. 

2057 
because federal mining inspectors are required to take radon samples in all areas men are working. (T. 36). Inspector Beason 

reasonably concluded from so-called "contract" information (T. 

37; Ex. G-2) and observations at the mine on inspection day that 

work had not been performed on the second escapeway for at least 

one year. (T. 37-38, 39). 

on cross-examination, Inspector Beason pointed out the significance of determining where the miners had been working. 

{T. 73-74). He stated: 

The work in the 500 drift toward the Hunter 

shaft would be to establish a second escape. 

Any work off of the main levels, such as the 

stopes, the raises, where you're into mineralized areas or working in those areas is 

mining. (T. 7 4) . 

There is no question but that ore was extracted from the 

mine and placed in stockpiles· near the mill (T. 27-28, 45, 71-72, 

79, 99, 107-108, 137-140, 141, 193, 222-224), that the concentrate therefrom could be sold after milling (T. 141, 192-193, 

222, 223), and that the President of LMMC intended to sell it 

ultimately (T. 141, 192-194, 220-224). 

The ore and other material removed from the mine was dumped 

on the ground and separated after a distinction was made whether 

it was "waste" rock or was mineralized (T. 107, 155-156, 161, 

164, 214-215). None of the material put in the stockpiles has 

ever been milled by LMMC (T. 164) other than for test runs of 

approximately 10 tons (T. 168-169). 

Insoector Beason identified the hazard involved as follows~ 

... if there's one escape, you only have one 

way out if you have a cave-in in any of your 

drifts, that prevents you from going out, or 

you lose your shaft 1 or if your skip gets 

'hung up there and drops 1 that type of 

thing, in the shaft. Or fire can occur in 

the shaft. Those types of things can create 

real hazards to the miners underground. 

(T. 59). 

The Inspector felt that this exposure to miners had endured 

from 1988 to 1990 (T. 61) and that if one of the contemplated 

events occurred and the main shaft was blocked, and fire occurred, then fatal injuries could occur (T. 63). He acknowl2058 
edged that the existence of a refuge chamber could lessen the 

likelihood of a fatality (T. 63, 95). 

Inspector Beason concluded that LMMC was moderately negligent on the basis of this rationale: 

Well, at previous times they had done some 

work in the 500 level. You see, on the contract report, I show that they had been in 

the 500 level, 527 level at one month--I 

think it was two months that they were there. 

So they were throughout that period of time 

in the 500 level. I'm assuming that the only 

reason they were doing that is to make their 

second escape. 

Then they had done the head frame and they 

claimed to be down 24 feet there, and they 

put the head frame in at that point. So, in 

that respect, they have mitigating circumstances that they have done some work, so I 

determined it to be moderately negligent. 

(T. 65). 

LMMC established, contrary to Inspector Beason's assertion 

that blasting slab rounds in the stope constitutes "pulling ore 

out," that: 

1. The mere fact that such occurs in a stope 

does not necessarily mean that production 

(mining) is ongoing (T. 42, 78-79). 

2. The mere fact that LMMC was the stope and 

blasting a slab round does not establish that 

LMMC was pulling out ore, i.e., extracting 

mineral (T. 85). 

3. That the slab round which Inspector Beason 

thought was blasted on July 2, 1990 (the day 

before the inspection) in the 640 stope, was 

actually blasted on the 5 level drift (T. 27 

7lp 85; 154; Exs. R-2 and R-6; See LMMC's 

Briefp pp. 5-7u 15). 

4. That the purpose of blasting the slab round 

in question, as stated by Mr. Calder, the 

miner who performed the task, was to turn a 

drift, which he explained as follows: 

2059 
I had to go at an angle with the 

drift so it enabled me to have more 

time to turn around to put a car in 

mud, car and track." (T. 154). 

5. That the mere existence of the muck chute 

does not warrant the inference that such was 

being used by LMMC for removal of ore (T. 57, 

58, 72, 79). 

DISCUSSION 

Ao occurrence 

This matter calls for interpretation of the standard. I 

construe the cited regulation, and conclude therefrom, as 

follows: 

The first of the three sentences requires, without qualification, that every "mine" have two escapeways. Reference to the 

Act itself reveals that a "coal or other mine'' is"··· an area of 

land from which minerals are extracted •.•• " Thus, it would 

seem that if minerals are being extracted, for whatever reason, 

from an area of land, as here (T. 222-224), then the operation is 

a mine and the first sentence of the regulation applies so as to 

require two escapeways. 

The second sentence of the regulation, requiring a "method 

of refuge while a second opening to the surface is being developed" was being complied with on the day the citation was issued. 

Respondent had put in such method of refuge (T. 95, 207). 

The third sentence states that a second escapeway is recommended but not required during the exploration or development of 

·the ore bodyo I construe this third sentence to be an exception 

·to the requirement of the first sentence and concur with MSHAvs 

position (stated in its Program Policy Manual) that the exception 

should be construed narrowly. 3 So read, the regulation requires 

that when mining, extracting mineral, is ongoing, two escapeways 

3 The Mine Act and the standards promulgated thereunder are to be interpreted to ensure, insofar as possible, safe and healthful working conditions 

for miners. Westmoreland Coal Co. v. FMSHRC, 606 F.2d 417, 419-420; (4th Cir. 

1979). The conclusion reached here would prevent a mine operator from extracting 

ore and conducting mining under the guise of development by rejecting an "eitheror" analytical approach and recognizing that development (or exploration) work 

and mining can be carried on simultaneously. 

2060 
are required. 4 Carrying this construction to finality, I conclude: (1) If such mining is incidental, in combination with, or 

part of exploration or development, it nevertheless is mining; 

(2) As mining, it is covered by the general rule of the regulation requiring two escapeways; (3) LMMC was required by the 

regulation to first install the second escapeway before engaging 

in other exploration or development work in which minerals were 

extracted; (4) If mineral extraction occurs as a direct result 

of the work involved in developing the second escapeway, no violation occurs; (5) If mineral extraction occurs as a result of 

work performed in other development not related to installation 

of the second escapeway, a violation does occur; and (6) If 

exploration or development work not related to installation of 

the second escapeway does not entail extraction of minerals, no 

violation is committed. 

In this matter, LMMC was engaged in development work which 

did involve extraction of mineral and was not part of the work 

necessary to install the second escapeway. While such was development work, it also was mining (production). As mining, it 

was covered by the regulation-and two escapeways were required to 

have been in place before such work was commenced. 

Accordingly, it is concluded that a violation did occur. 

B. Significant and Substantial 

LMMC's position that this violation was not "Significant and 

Substantial" is found meritorious and is here adopted. 

A violation is properly designated "Significant and Substantial vrr 0 based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably 

serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 

822, 825 (April 1981). In Mathies Coal Co., 3 FMSHRC 822, 825 

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

1984), the Commission explained~ 

4 At page 9 of its Brief, LMMC argues " ... the mere fact that the material excavated in a particular operation is ore or mineralized rock does not 

prevent that operation from being exploration or development. " When such ore or 

mineralized rock is extracted and stockpiled for future sale, is this not 

"mining" also? Is the regulation to be construed narrowly in a manner adverse 

to safety, or broadly to cover its obvious intent to require two escapeways when 

mining is going on? 

2061 
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 anger 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. 

Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103 (5th 

Cir. 1988). 

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, 

and that the likelihood of injury must be evaluated in terms of 

continued normal mining operations. U.S. Steel Mining Co., 6 

FMSHRC 1573, 1574 (July 1984). See also Monterey Coal Co., 7 

FMSHRC 99~, 1001-1002 (July 1985). The operative time frame for 

determining if a reasonable likelihood of injury exists includes 

both the time that a violative condition existed prior to the 

citation and the time that it would have existed if normal mining 

operations had continued. Halfway, Inc., 8 FMSHRC 8, 12 (January 

1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). 

The question of whether any particular violation is significant 

and substantial must be based on the particular facts surrounding 

the violation, including the nature of the mine involved. Texasgulf, Inc., 10 FMSHRC 498p 500-501 (April 1988); Youghiogheny and 

Ohio Coal Company, 9 FMSHRC 2007v 2011-2012 (December 1987). It 

is the contribution of a violation to the cause and effect of a 

hazard that must be significant and substantial. U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984). 

During Inspector Beason's direct testimony regarding whether 

the alleged violation was ~significant and Substantial " he testified in broad general terms regarding cave-ins, firev and collapse of the shaft (T. 59) and then concluded that these events 

were 90 reasonable and likely, vv based on his experience in other 

mines (T. 62). His testimony on both direct and cross-examination is devoid of any mention of the particular facts surrounding the violation (Cement Division, National Gypsum Company, 3 

FMSHRC 822 (April 1981) which would support his conclusion. Even 

from the record as a whole (including MSHA's evidence) it must be 

concluded that Petitioner established only a possibility (T. 62-

63, 91) that the hazard contributed to by the violation would 

come to f-ruition so as to result in an injury or fatality. Since 

the "reasonable likelihood" requirement of Mathies, supra, has 

2062 
not been satisfied, it is determined that the "Significant and 

Substantial" designation of this violation should be stricken. 

c. Penalty Assessment 5 

LMMC is the owner and operator of the Hopemore Shaft, a 

small underground gold and base metals mine. It had a history of 

seven violations in the pertinent two-year period preceding the 

issuance of the citation. LMMC's ability to continue in business 

will not be placed in jeopardy by the payment of a reasonable 

penalty in this matter. MSHA does not contend that LMMC, after 

notification of the violation did not proceed in good faith to 

promptly .abate the same (T. 67). Based on the evidence previously discussed, LMMC is found to be but moderately negligent in the 

commission of this violation. 

In view of the failure of the evidence with regard to the 

alleged "Significant and Substantial" nature of this violation, 

the paucity of the evidence bearing .. on whether there was a reasonable likelihood that the hazard envisioned would occur as a 

result of the violation's contribution, and the Inspector's opinion that the existence of the refuge chamber would lessen the 

likelihood of the occurrence of a fatality should a contemplated 

hazard come to fruition, the violation is found to be of only a 

moderate degree of gravity. Weighing these criteria, a penalty 

of $100 is here assessed. 

ORDER 

1. .Citation No. 3633365 is MODIFIED to delete the 00 significant and Substantial 00 designation thereon and is 

otherwise AFFIRMED. 

2. Respondent LMMC SHALL PAY to the Secretary of Labor 

within 40 days from the date hereof the sum of $100 as and for a 

civil penalty. 

5 

~~~~£'?.{!/ #. ~-ed;-1 ;4. 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Petitioner seeks a penalty of $85 in this matter. 

2063 
Distribution: 

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

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

Colorado 80294 (Certified Mail) 

George E. Reeves, Esq., 4704 Harlan Street, Suite 300, Denver, co 

80212 (Certified Mail) 

ek 

2064 
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, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 1 Docket No. KENT 91-75 

Petitioner A. c. No. 15-16323-03514 

v. 

WASTE COAL MANAGEMENT, INC., 

Respondent 

Black Mountain Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Maurer 

This case is before me upon a petition for assessment of 

civil penalty under section lOS(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). The parties have filed a joint 

motion to approve a settlement agreement and to dismiss the case. 

A reduction in penalty from $273 to $70 is proposed. I have 

considered the representations and documentation submitted in 

this case, and I conclude that the proffered settlement is 

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

Act. 

WHEREFORE; the motion for approval of settlement is GRANTED, 

and is ORDERED that respondent pay a penalty of $70 within 

of t.his order" 

urer 

ative Law Judge 

Distribution~ 

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

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

Nashville, TN 37215 (Certified Mail) 

Mr. W. H. Crandall, President, Waste Coal Management, Inc., 

P. o. Box 590092, Birmingham, AL 35259 {Certified Mail) 

dcp 

2065 
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OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

; \ I 

: r 

CONSOLIDATION COAL COMPANY, 

Contestant 

CONTEST PROCEEDING 

v. Docket No. PENN 92-739-R 

Order No. 3699507; 7/2/92 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Dilworth Mine 

Mine I.D. No. 36-04281 

Appearances: 

Before: 

DECISION 

Daniel E. Rogers, Esg., Consolidation 

Coal Company, ,Pittsburgh, Pennsylvania, 

for Contestant; 

Nancy Koppelman, Esg., Office of the 

Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for Respondent 

Judge Melick 

This case is before me upon the notice of contest 

filed by Consolidation Coal Company (Consol) pursuant to 

Section 107(e) of the Federal Mine Safety and Health Act 

of 1977 1 30 C.F.R. § 801, et seq., the "Act," to challenge 

an "imminent danger 11 order of withdrawal issued by the 

Secretary under Section 107(a) of the Act. 

The withdrawal order at issue charges as follows~ 

There were two hot hangers and a third 

hanger found arcing across the insulator 

found on the G-main haulage. The first one 

found at the mouth of the 1-D switch was 

found with the insulator on fire. The flame 

was from 1 to 3 inches in height. The second 

hot hanger found just outby 73 and 1/2 crosscut 

had the roof coal and rock hot to the touch and 

was smoking when found. The third danger inby 

the 75-G mains crosscut was not hot but found 

to be arcing across the insulator. These are 

trolley wire hangers and the wire is 550 volts d.c. 

A citation will accompany this order. 

2066 
Section 107(a) of the Act provides, in part, as follows: 

If, upon any inspection or investigation of 

a coal or other mine which is subject to 

this Act, an authorized representative of the 

Secretary finds that an imminent danger exists, 

such representative shall determine the extent 

of the area of such mine throughout which the 

danger exists, and issue an order requiring the 

operator of such mine to cause all persons 

except those referred to in section 104(c), to be 

withdrawn from, and to be prohibited from entering 

such area until an authorized representative of 

the Secretary determines that such imminent danger 

and the conditions or practice which cause such 

imminent danger no longer exists. 

Section 3(j) of the Act defines "imminent danger" as the 

existence of any condition or practice in a coal or other mine 

which could reasonably be expected to cause death or serious 

physical harm before such conQ.Jtion or practice can be abated. 

This definition was not changed from the definition contained 

in the Coal Mine Health and Safety Act of 1969, 30 u.s.c. § 801, 

et seq. (1976) (Amended 1977) ("Coal Act"). The Senate Report 

for the Coal Act states that an imminent danger is present when 

"the situation is so serious that the miners must be removed 

from the danger forthwith when the danger is discovered without 

waiting for any formal proceeding or notice." s. Rep. No. 411, 

91st Cong., 1st Sess. 89 (1969), reprinted in Senate Subcommittee 

on Labor, Committee on Labor and Public Welfare, 94th Cong., 

1st Sess. Part I, Legislative History of the Federal Coal Mine 

Safety and Health Act of 1969 at 215 (1975) (quotes Coal Act 

Legislative History). It further states that the "seriousness 

the situation demands such immediate action" because "delays 1 

even of a few minutesv may be critical or disastrous. 11 See 

Utah Power and Light Companyu 13 FMSHRC 1617 (1991). 

In Rochester and Pittsburgh Coal Company v. Secretary, 

11 FMSHRC 2159 (1989) 1 the Commission set forth the analytical 

framework for determining the validity of imminent danger 

·withdrawal orders issued under section 107(a) of the Act. 

Commission indicated that it is first appropriate for 

judge to determine whether the Secretary has met her 

burden of proving that an 11 imminent danger" existed at the 

time the order was issued. The Commission also suggested, however~ that even if an imminent danger had not then existed, 

the findings and decision of the inspector in issuing a section 

107(a) order should nevertheless be upheld "unless there is 

evidence that he as abused his discretion or authority." 

Rochester and Pittsburgh, supra, at p. 2164 quoting Old Ben 

Coal Corp. v. Interior Board of Mine Operations Appeals, 523 F.2d 

at p. 31 (7th Cir. 1975). 

2067 
The order at issue, No. 3699507, in fact charges 

three separate incidents as constituting separate grounds 

for issuance of the withdrawal order. It is not disputed 

that the first incident was discovered at approximately 

8:30 a.m. on July 2, 1992, by an inspection party consisting 

of Ronald Hixson, a coal mine inspector for the Mine Safety 

and Health Administration (MSHA), Morton Whoolery, the union 

walkaround, and Patrick Wise, Consol's inspection escort. It 

is further undisputed that at around that time an underground 

trolley wire was found to be on fire with flames 1 to 3 inches 

in height. 

Martin Whoolery, who corroborated the testimony of 

Inspector Hixson in essential respects, recalled that they 

first saw a glow in the distance and, as they approached, 

observed that the hanger was actually on fire. Whoolery 

testified that Wise then called the dispatcher and pulled 

the power. At that point Whoolery removed and replaced the old 

insulator. According to the expert testimony of Ron Gossard, 

an electrical engineer and MSHA supervisor, there was a high 

probability of ignition of roof coal by the open flames, 

particularly coal in the Pittsburgh seam, which is easily 

ignited and once ignited spreads rapidly. 

Inspector Hixson confirmed that had the fire not 

been discovered as soon as it was, there was a chance for 

a major mine fire. There was coal in the roof, there was 

sloughage of coal on the mine floor and wood cribs were 

nearby the open flame. Hixson also observed that the hot 

mine roof could fall taking down the trolley wire in its 

entirety. With the air velocity in the mine at approximately 

535 cubic feet per minute at the location of the fire, the 

fire would also likely spread rapidlyo Hixson also observed 

that the instant mine liberates 1 to lo5 million cubic feet of 

methane in a 24 hour period and the condition was accordingly 

that much more aggravatedo In addition to the inspection 

party itself u pumpers and the fireboss would also have been 

exposed to the hazard. 

ConsolQs escortp Patrick Wisev also saw the hot hanger 

:Erom about 800 feet away as it was glowing and arcingo He 

acknowledged that the condition was dangerous and had it not 

been corrected was an imminent dangero 

Within this framework of undisputed evidence it is 

clear beyond all doubt that the condition found at the 

first location at approximately 8~30 aomo on July 2u 1992u 

was indeed an IQ imminent danger o" The oral order of withdrawal 

2068 
issued by Inspector Hixson at that time and subsequently 

committed to writing in Order No. 3699507 is accordingly 

affirmed. 

Inasmuch as the Secretary was unable to prove by a 

preponderance of the evidence that even an oral order of 

withdrawal had been issued by Inspector Hixson prior to the 

abatement of the second and third conditions cited I cannot 

affirm those parts of the order. Inspector Hixson himself 

testified that he could not recall whether he even told Wise 

that a Section 107(a) order was being issued on the second 

condition. He further acknowledged that he did not tell Wise 

that persons inby had to be withdrawn following the discovery 

of the second and third conditions. Wise testified that it 

was only after they had replaced the smoking hanger at the 

second location that he asked Inspector Hixson "I assume this 

will be the same as the other one" and Hixson responded "Yes." 

Order of Withdrawal No. 

Contest herein is DISMISSED. 

Distribution~ 

ORDER 

is AFFIRMED nd the 

elick 

Admin strative 

703-7 6-6261 

( 

Daniel E. Rogers, Esq.; Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified 

Mail) 

Nancy Fo Koppelman, Esq., Office of the Solicitor, 

UoS. Department of Labor, 14480 Gateway Center, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

/lh 

2069 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 81992 

SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

) Master Docket No. 91-1 

) Docket No. KENT 92-110 

) A.C. No. 15-14990-03534D 

) 

BLACK WIDOW COLLIERIES LTD., 

Respondent 

) Warco No. 1 Mine 

) 

ORDER OF DISMISSAL 

Before: Judge Broderick 

on November 27, 1992, the.Secretary filed a motion to 

dismiss this proceeding on the grounds that on August 12, 1991, 

the Respondent and Ernest Varney, President of Respondent entered 

into plea agreements, agreeing to plead guilty to charges of 

conspiracy to defraud the United states in connection with the 

civil violations charged herein. Respondent contracted with 

Triangle Research to handle its dust sampling program. 

Triangle's principal and agent admitted falsifying the samples 

submitted to MSHA and admitted that on numerous occasions they 

blew air on the filter surfaces of manufactured dust samples. 

Harry White and Ronald Ellis of Triangle have been convicted of 

defrauding the government and have been sentenced to prison. 

Respondent provided Triangle with signed blank dust data cards 

which were submitted to MSHA with the samples. 

on August 7 9 1992u Judge Samuel G. Wilson of the Western 

District of Virginia sentenced Black Widow Collieries Ltd to pay 

a fine of $30,000, $15,000 of which was suspended and to 2 years 

probation. Ernest Varney was sentenced to pay a fine of $5,ooo 

and to 2 years probation. As part of the plea agreement the 

Secretary agreed to move to dismiss pending civil penalty 

proceedings against Respondent for violations of the laws 

governing the dust sampling program. 

I conclude that under the circumstances dismissal of this 

proceeding effectuates the purposes of the Mine Act. 

Accordingly, this proceeding is DISMISSED. 

4uiLLS 9'4fvocfuAd ,./~ ~ames A. Broderick 

Administrative Law Judge 

2070 
Distribution: 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

suite 400 Arlington, VA 22203 (Certified Mail) 

Ernest E. Varney, President, Black Widow Collieries, LTD., 

Box 249, Stanville, KY 41649 (Certified Mail) 

Hand delivered to Lead Defense Counsel Committee 

/fb 

2071 
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. 

AMBROSE BRANCH COAL COMPANY, 

Respondent 

DEC 1 8 1992 

) PENALTY PROCEEDING 

) 

) Master Docket No. 91-1 

) Docket No. VA 91-453 

) A.C. No. 44-05265-035260 

) 

) Prep Plant No. 1 Mine 

) 

DECISION APPROVING SETTLEMENT 

Before: Judge Broderick 

on November 30, 1992, the.Secretary filed a motion to 

approve a settlement between the parties in the above case. The 

case includes one alleged violation of 30 C.F.R. § 70.209(b), 

each of which was originally assessed at $1,000. The Secretary 

continued to assert that the violations resulted from a 

deliberate act, which is denied by the mine operator. The degree 

of negligence is disputed, and the parties agree to the reduction 

in the total penalties from $1,000 to $750. 

I have considered the motion in the light of the criteria in 

section llO(i) of the Act and conclude that it should be 

approved. 

Accordingly 0 the settlement motion is APPROVED. The 

operator is ordered to pay within 30 days of the date of this 

order the sum of $750 for the violations charged in these 

proceedingso 

~~A6vo~ I James A. Broderick ~ Administrative Law Judge 

Distribution~ 

Mark R. Maleckiu Esq.u Office of the Solicitor, U.S. Department 

of Laboru 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

{Certified Mail) 

Paul R. Ison, Ambrose Branch Coal Company, Post Office Box 806, 

Pound, VA 24279 (Certified Mail) 

/fb 

2072 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

CAROL COAL CORPORATION, 

Respondent 

DEC 1 81992 

) CIVIL PENALTY PROCEEDING 

} 

) Master Docket No. 91-1 

) Docket No. VA 91-583 

) A.C. No. 44-04079-035250 

) 

) No. 1 Mine 

) 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On December 1, 1992, the Secretary filed a motion to dismiss 

this proceeding on the grounds.that on August 2, 1992, the 

Respondent and Donald R. Lester, President of Respondent entered 

into plea agreements, agreeing to plead guilty to charges of 

conspiracy to defraud an agency of the United States in 

connection with the civil violations charged herein. Respondent 

contracted with Triangle Research to handle its dust sampling 

program. Triangle's principal and agent admitted falsifying the 

samples submitted to MSHA and admitted that on numerous occasions 

they blew air on the filter surfaces of manufactured dust 

samples. Harry White and Ronald Ellis of Triangle have been 

convicted of defrauding the Government and have been sentenced to 

prison. Respondent provided Triangle with signed blank dust data 

cards which were submitted to MSHA with the samples. 

On May Sp 1992 9 Judge James c. Turk of the Southern District 

of West Virginia sentenced Carol Coal Company to pay a fine of 

$30,000 and to 2 years probation. Donald R. Lester was sentenced 

to 2 years probation, 2 months home confinement, and a fine of 

$5,000. As part of the plea agreement 1 the Secretary agreed to 

move to dismiss pending civil penalty proceedings against 

Respondent for violations of the laws governing the dust sampling 

prograrno 

I conclude that under the circumstances dismissal of this 

proceeding effectuates the purposes of the Mine Act, 

Accordingly, this proceeding is DISMISSED. 

1tuAu~ kf:3/cd£~ j James A. Broderick 

Administrative Law Judge 

2073 
Distribution: 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400 Arlington, VA 22203 (Certified Mail) 

John J. Polak, Esq., King, Betts and Allen, Post Office Box 3394, 

Charleston, WV 25333 (Certified Mail) 

Hand delivered to Lead Defense Counsel Committee 

/fb 

2074 
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 

Vo 

L & L ENERGY OF HURLEY, INC. 1 

Respondent 

) CIVIL PENALTY PROCEEDING 

} 

) Master Docket No. 91-1 

) Docket No. VA 91-460 

) A.C. No. 44-04862-03541D 

) 

) Mine No. 2 

) 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On December 9, 1992, the Secretary filed a motion to dismiss 

this proceeding on the grounds that on August 8, 1991, the 

Respondent L & L Energy of Hurley, Inc. and Corbin Eugene Cline, 

principal of Respondent enetered into plea agreements, agreeing 

to plead guilty to charges of conspiracy to defraud an agency of 

the United states in connection with the civil violations charged 

herein. Respondent contracted with Triangle Research to handle 

its dust sampling program. Triangle's principal and agent 

admitted falsifying the samples submitted to MSHA and admitted ~hat on numerous occasions they blew air on the filtered surfaces 

manufactured dust sampleso Harry White and Ronald Ellis of 

Triangle have been convicted of defrauding the Government and 

have received prison sentenceso Respondent provided Triangle 

with signed blank dust data cards which were submitted to MSHA 

with the samples. 

on August '°" 1992 9 Judge James c, turk of the Western 

of virginia sentenced L & R Energy to pay a fine of 

30p000 of which $15:000 was suspended and to 2 years probation. 

Corbin Eugene Cline was sentenced to pay a fine of $5,000 and to 

years probationp and 2 months home confinemento As part of the 

plea agreementu the Secretary agreed to move to dismiss pending 

civil penalty proceedings against Respondent for violations of 

the laws governing the dust sampling program. 

I conclude that under the circumstances dismissal of this 

proceeding effectuates the purposes of the Mine Act. 

2075 
Accordingly, this proceeding is DISMISSED. 

Distribution: 

1

r't£4·/Jtl!_Y.7 /Jfj~t/au 1/G/:._ ·· James A. Broderick 

Administrative Law Judge 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400 Arlington, VA 22203 (Certified Mail) 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Hand delivered to Lead Defense Counsel Committee 

/fb 

2076 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 1 81992 

SECRETARY OF LABOR, ) CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH ) 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BRIARFIELD COAL CORPORATION, 

Respondent 

) Master Docket No. 91-1 

) Docket No. VA 91-495 

) A.C. No. 44-04858-03554D 

) 

) Mine No. 1 

) 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On November 27, 1992, the Secretary filed a motion to 

dismiss this proceeding on the grounds that on August 2, 1991, 

the Respondent and James W. Dotson, President of Respondent 

entered into plea agreements, agreeing to plead guilty to charges 

of conspiracy to defraud an agency of the United states in 

connection with the civil violations charged herein. Respondent 

contracted with Triangle Research to handle its dust sampling 

program. Triangle's principal and agent admitted falsifying the 

samples submitted to MSHA and admitted that on numerous occasions 

they blew air on the filter surfaces of manufactured dust 

sampleso Harry White and Ronald Ellis of Triangle have been 

convicted of defrauding the Government and have been sentenced to 

prison" Respondent provided Triangle with signed blank dust data 

cards which were submitted to MSHA with the samples. 

on May 8, 1992, Judge Samuel G. Wilson of the Western 

District of Virginia sentenced Briarfield Coal Corporation to pay 

a find of $30 0 000 and to 2 years probation. James W. Dotson was 

sentenced to pay a fine of $5,000, and to 2 years probation. As 

part of the plea agreement the Secretary agreed to move to 

dismiss pending civil penalty proceedings against Respondent for 

violations of the laws governing the dust sampling program. 

I conclude that under the circumstances dismissal of this 

proceeding effectuates the purposes of the Mine Act. 

Accordingly, this proceeding is DISMISSED. 

J

tlUt0 vt/drv~·di_, James A. Broderick 

Administrative Law Judge 

2077 
Distribution: 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400 Arlington, VA 22203 (Certified Mail) 

Thomas R. Scott, Jr., Esq., Street, Street, Street, Scott & 

Bowman, 339 West Main Street, P.O. Box 2100, Grundy, VA 24614 

(Certified Mail) 

Hand delivered to Lead Defense Counsel Committee 

/fb 

2078 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

LUCKY L & L COAL CO., INC., 

Respondent 

.. "). . '. -. ~ . - : 

, .. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Docket No. VA 91-458 

A.C. No. 44-02241-03516D 

Mine No. 1 

ORDER OP DISMISSAL 

Before: Judge Broderick 

On December a, 1992, the Secretary filed a motion to dismiss 

this proceeding on the grounds that on August 7, 1991, Respondent 

Lucky L & L Coal co., Inc., and Robert Lee Brown, principal of 

Respondent entered into plea agreements, agreeing to plead guilty 

to charges of conspiracy to defraud an agency of the United States 

in connection with the civil violations charged herein. Respondent 

contracted with Triangle Research to handle its dust sampling 

program. Triangle's principal and agent admitted falsifying the 

samples submitted to MSHA, and admitted that on numerous occasions 

they blew air on the filter surfaces of manufactured dust samples. 

Harry White and Ronald Ellis have been convicted of defrauding the 

Government" and have received prison sentences. Respondent 

provided Triangle with signed blank dust data cards which were 

submitted to MSHA with the samples. 

On August lOu 1992u Judge Samuel G. Wilson of the Western 

District of Virginiau sentenced Lucky L' L Coal Co.Q Inc.u to pay ~ fine $30uOOO of which $15 6 000 was suspended and to 2 years 

probationo Robert Lee Brown was sentenced to pay a fine of $500 

and to 2 years probationo As part of the plea agreement, the 

Secretary agreed to move to dismiss pending civil penalty 

proceedings against Respondent for violations of the laws governing 

the dust sampling program. 

2079 
I conclude that under the circumstances dismissal of these 

proceedings effectuates the purposes of the Mine Act. 

Accordingly, these proceedings are DISMISSED. 

Distribution: 

~A13~ (/ ~~~7~.A. Broderick 

Administrative Law Judge 

Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Suite 

400, Arlington, Virginia 22203 (Certified Mail) 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, Virginia 24614 (Certified Mail) 

Hand Delivered to Lead Defense Counsel Committee 

/fcca 

2080 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GOOD TIMES MINING, INC., 

Respondent 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

,) 

) 

) 

CIVIL PENALTY PROCEEDINGS 

Master Docket No. 91-1 

Docket No. VA 91-462 

A.C. No. 44-06333-035080 

Mine No. 2 

Docket No. KENT 91-1051 

A.C. No. 15-16410-035140 

Mine No. 3 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On December 8, 1992, the Secretary filed a motion to dismiss 

these proceedings on the grounds that on August 6, 1991, Respondent 

Good Times Mining, Inc., and Jay Wallace, principal of Respondent, 

entered into plea agreements, agreeing to plead guilty to charges 

of conspiracy to defraud an agency of the United states in 

connection with the civil violations charged herein. Respondent 

contracted Triangle Research to handle its dust sampling 

programo Triangle~s principal and agent admitted falsifying the 

samples submitted to MSHAp and admitted that on numerous occasions 

they blew air on the filter surfaces of manufactured dust samples. 

Harry White and Ronald Ellis have been convicted of defrauding the 

GovernmentQ and have received prison sentences. Respondent 

provided Triangle with signed blank dust data cards which were 

submitted to MSHA with the sampleso 

On August 6r 1992, Judge James Co Turk of the Western District 

of Virginiav sentenced Good Times Mining, Inc. to pay a find of 

$30v000 of which $15,000 was suspended and to 2 years probation. 

Jay Wallace was sentenced to pay a find of $5,000 and to 2 years 

probation and 2 months home confinement. As part of the plea 

agreement, the Secretary agreed to move to discuss pending civil 

penalty proceedings against Respondent for violations of the laws 

governing the dust sampling program. 

2081 
I conclude that unaer the circumstances dismissal of these 

proceedings effectuates the purposes of the Mine Act. 

Accordingly, these proceedings are DISMISSED. 

Distribution: 

, u!5 A431'2,,aiJ~e/t_ mes A. Broderick 

dministrative Law Judge 

Douglas N. White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, suite 

400, Arlington, Virginia 22203 (Certified Mail) 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, Virginia 24614 (Certified Mail) 

Hand Delivered to Lead Defense counsel Committee 

/fcca 

2082 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OEC 2 31992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TEN-A COAL COMPANY, 

Respondent, 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 89-274 

A. C. No. 46-05682-03505 

Ward Mine 

DECISION UPON REMAND APPROVING SETTLEMENT 

Before: Judge Maurer 

on May 3, 1990, I rendered a decision affirming 

section 104{d) (1) Citation No. 2944253 in its entirety and 

assessed a $400 civil penalty. That portion of this case was not 

appealed and was not affected by the subsequent Commission 

decision and the operator has agreed to pay that $400 as part of 

the instant settlement negotiation. The crux of the Secretary's 

appeal of my decision in this case and the subsequent Commission 

decision in Ten-A_Coal Co., 14 FMSHRC 1296 (August 1992) dealt 

with my modification of section 104(d){l) Order No. 2944252 to a 

section 104{a) citation. The Commission reversed that portion of 

decision and remanded this matter to me for further 

proceedings. 

Subsequently, the parties have proposed to settle this remaining portion of the case by reinstating the section 104(d) (1) 

Order and assessing a $300 civil penalty vice the $400 penalty 

originally proposed by the Secretary. I have reconsidered the 

entire record in this case and I conclude that the proffered 

settlement is appropriate under the criteria set forth in 

section llO(i) of the Mine Act. 

\;fHEREFORE, the motion for approval of settlement is GRANTED. 

ORDER 

l. Section 104(d) (1) Citation No. 2944253 and 

section 104{d) (1) Order No. 2944252 ARE AFFIRMED. 

20 83 
2. Ten-A Coal Company is ordered to pay the sum of $700 

within 30 days of the date of this decision. 

aurer 

rative Law Judge 

Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, 

u. S. Department of Labor, 4015 Wilson Boulevard, Room 516, 

Arlington, VA 22203 (Certified Mail) 

Harold s. Yost, Esq., 126 West Main Street, Bridgeport, WV 26330 

(Certified Mail) 

dcp 

2084 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 31992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DIXIE MINING COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 92-129 

A. C. No. 44-06533-03534 

: Mine No. 1 

DECISION APPROVING SETTLEMENT 

Appearances: Javier I. Romanach, Esq., Office of the Solicitor, 

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

the Secretary; 

Sam Blankenship, President, Dixie Mining Company, 

Inc.u Bristol, Virginia, for Respondent. 

Before: Judge Maurer 

This case is before me upon a petition for assessment of 

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

Health Act of 1977 {the Act). At hearing, on November 24, 1992, 

in Abingdon 1 Virginia, after ·the completion of testimony, the 

parties made a motion approve a settlement agreement and to 

dismiss case. A reduction in penalty from $500 to $150 was 

proposed. r have considered the representations 1 documentation 

and testimony submitted in this case, and I conclude that 

the proffered settlement is appropriate under the criteria set 

forth in section llO(i) of the Mine Act. 

\llllEREFOREv the motion for approval of settlement GRANTED, 

and ordered that respondent pay a civil penalty of $150 

within 30 days of this order. 

aurer 

rative Law Judge 

Distribution: 

Javier I. Romanach, Esq., Office of the Solicitor, u. s. 

Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, 

VA 22203, (Certified Mail) 

Mr. Sam Blankenship, President, Dixie Mining Company, Inc., 

P. o. Box 909, Bristol, VA 24203 (Certified Mail) 

2085 
PBDBBAL lllD SDBTY HD HEALTH RBVI:BW COllJIXSSJ:OB 

OFFICE OF ADMINISTRATIVE LAW Jll>GES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 281992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

DONALD BOWLING, 

Complainant 

and 

DONALD BOWLING, 

Intervenor 

v. 

PERRY TRANSPORT, INC., 

a Corporation; STEVIE CALDWELL, 

TRUCKING, INC., a Corporation; 

and STEVIE CALDWELL, 

an Individual, 

Respondents 

. . 

. . 

. . 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. KENT 92-1052-D 

Mine ID 15-13937 and 

15-13937 AFW 

MSHA Case No. BARB CD 92-28 

Appearances: Stephen D. Turow, Esq., Office of Solicitor, U.S. 

Department of Laboru Arlingtonu Virginiau for 

Complainant9 

Beforeg 

Tony Oppegardu Esq.u Lexingtonu Kentucky, for 

Complainant• and 

Sara Walter Combs, Esq. , Stanton, 

Kentucky, for Respondents. 

Judge Fauver 

This an application for temporary reinstatement pending 

final determination of the merits of a minervs complaint of 

discrimination, under § 105 (c) of the Federal Mine Safety and 

Health Act l977g 30 u.s.c. § 801 et seg. 

The application, filed on September 15, 1992, states that the 

Secretary reviewed Mr. Bowlingis complaint to MSHA and determined 

that it was not frivolous. 

2086 
With the parties agreement as to the date, a hearing on the 

application was held on October 20, 1992. The parties did not 

object to a posthearing briefing schedule after receipt of the 

transcript rather that oral arguments and a decision without the 

transcript. Pending briefs, the secretary moved that temporary 

reinstatement, if granted, be made retroactive to October 27, 1992. 

Respondents filed an opposition to the motion. 

At all relevant times, Lost Mountain Mining Co. operated coal 

mines in Kentucky, producing coal for sale or use in or 

substantially affecting interstate commerce. 

Donald Bowling was employed by Stevie Caldwell Trucking, Inc. , from February 1990, to February 7, 1992. He drove a coal truck 

under the corporation's contract with Perry Transport, Inc., which 

has had a longstanding contract with Lost Mountain Mining Co. to 

transport coal produced at its mines. 

Stevie Caldwell Trucking, Inc., is a Kentucky corporation that 

owns one truck. The corporation was established by Stevie Caldwell 

upon the suggestion and guidance of his father, David Caldwell, as 

a means of contracting with Pe:i"ryTransport, Inc., to deliver coal 

under its contract with Lost Mountain Mining co. The principal 

officers of Perry Transport, Inc., are Dewey Grigsby (President), 

David Caldwell (Vice President) and Zack Caldwell (SecretaryTreasurer). 

I find that Stevie Caldwell Trucking, Inc., and Perry 

Transport, Inc., have close economic and family ties warranting 

their treatment as co-employers of Donald Bowling as a truck 

driver. I also find that the history and nature of Stevie Caldwell 

Trucking, Inc. , warrants treating its owner, Stevie Caldwell, 

individually as a co-employer of Donald Bowling. 

The scope a hearing on an application for temporary 

reinstatement is uu1imited to a determination by the Judge as to 

whether t.he mineru s complaint is frivolously brought" and "the 

burden of proof shall be upon the Secretary to establish that the 

complaint is not frivolously brought." 29 C.F.R. § 2700.44. 

To prevail on a petition for temporary reinstatementr the 

complainant need only (1) advance a legal theory of discrimination 

·that is not frivolous and (2) produce sufficient evidence to 

convince the trier of fact that the evidence supporting the legal 

theory is not frivolous. c H Mining Company, Inc., 14 FMSHRC 

1362, 1364-5 (1992)0 

There can be no argument regarding the sufficiency of 

Mro Bowling's· legal theory of discrimination: that the Mine Act 

prohibits discharging a miner for making safety complaints to MSHA. 

The question is therefore the sufficiency of the evidence to show 

that the complaint was not "frivolously brought." 

2087 
The term "frivolous" describes s.omething "of little or no 

worth" or something that is not "worthy of serious" consideration: 

"trifling," "petty," "paltry" and "trivial" are all terms that are 

synonymous with the word "frivolous." Random ·House College 

Dictionary. Revised Edition, 531 (1980). The common meaning of 

"frivolous" applies and temporary reinstatement should be granted 

unless the Complainant's position is "clearly without merit." 

;price and Vacha v. Jim Walter Resources, 9 FMSHRC 1305, 1306 

(1987). In applying the term "frivolous" in a similar context, the 

Supreme Court ruled that a complaint is not frivolous from an 

evidentiary standpoint unless "the factual allegations (supporting 

the complaint] are clearly baseless" or "fanciful." Neitzke v. 

Williams, 490 U.S. 319, 325-7 (1989) (establishing a test for 

dismissing frivolous prisoner complaints under 28 u.s.c. § 1915 

(d)): see also: Young v. Kann, 926 F.2d 1396, 1404 (3rd Cir. 1991) 

(refusing to dismiss a prisoner's complaint as frivolous since the 

claim was not based upon "completely baseless factual 

contentions"). 

The hearing evidence shows a sharp dispute of the facts 

concerning the termination of Mr. Bowling's employment. 

Mr. Bowling's version of the facts shows a discharge because of his 

safety complaints to MSHA. Mr. Caldwell's version shows a 

voluntary quit having nothing to do with complaints to MSHA. 

I do not find that Mr. Bowling's testimony is so incredible or 

unworthy of belief as to amount to a "frivolous" complaint. 

I therefore conclude that the special concern Congress has 

shown to require temporary reinstatement of a miner unless his 

claim is frivolous requires temporary reinstatement in this case. 

This decision is reached without any opinion as to the ultimate 

merits of the complaint of discrimination. 

I also find that the Secretarygs motion is well taken to grant ~emporary reinstatement retroactive to five days after the hearing 

on the petition~ ioSov to October 27 0 19920 

ORDER 

WHEREFORE IT IS ORDERED that~ 

L Respondents 0 jointly and severally, shall, within 10 days 

from the date of this Order, reinstate Donald· Bowling, pending 

final determination of the merits of his complaint of 

discrimination, to the employment position he held immediately 

before the termination of his employment on February 7 8 1992 8 with 

the same pay, benefits, duties, and other features of employment 

that would apply had his employment not terminated. The 

reinstatement shall be retroactive to October 27, 1992, and shall 

continue until dissolved, modified, or made permanent by further 

order. 

2088 
2. Respondents, jointly and severally, shall compensate 

Donald Bowling for any lost wages due to the termination of his 

employment computed from October 27, 1992, until (1) Donald Bowling 

is reinstated in compliance with this Order, (2) he refuses an 

offer of reinstatement, or (3) he fails to accept an offer within 

five days after receiving a written offer of reinstatement. 

Interest shall accrue on the back pay in accordance with the 

Commission's decisions on interest. Provided: Back pay due under 

this Order shall be reduced by earnings made by Donald Bowling from 

other employment since October 27, 1992, and may be reduced further 

by proof of failure to mitigate damages by reasonable and diligent 

efforts to find other gainful employment since October 27, 1992. 

3. The parties shall confer within seven days of receipt of 

this Order in an effort to stipulate damages and interest due under 

this Order, and within another seven days report any agreed amount 

to the judge. If the parties do not agree, counsel for the 

Secretary and Complainant shall promptly file a statement of 

proposed damages and interest. After an opportunity to reply, a 

hearing may be held on any issues of fact concerning damages. 

4. counsel for the Secretary and Complainant shall promptly 

file a Satisfaction of Order upon Respondents' compliance with this 

Order. 

s. The Secretary's motion for temporary reinstatement 

retroactive to October 27, 1992, is GRANTED. Provided: the 90-day 

period for the Secretary to file a complaint for permanent 

reinstatement (provided in 29 C.F.R. § 2700.44(f)) shall run from 

October 27, 1992. If such a complaint is not file~within 90 days 

from that date, this Order hereby constitutes a Show cause Order to 

the Secretary to show cause in writing why this temporary 

reinstatement order should not be dissolved effective the 91st day 

after October 27q 1992. 

This Decision and Order shall not constitute the judge 0 s 

final disposition of this proceeding until a decision on damages is 

issued" 

Distributiong 

cJ.J4~~~v~ William Fauver 

Administrative Law Judge 

Stephen D. Turow, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 (Certified 

Mail) 

Sara Walter Combs, Esq., P. o. Box 828, Stanton, Kentucky 40380 

(Certified Mail) 

Tony Oppegard, Esq., Appalachian Research & Defense Fund 0f 

Kentucky, Inc., 630 Maxwelton Court, Lexington, Kentucky 40508 

(Certified Mail) 

2089 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RHONE-POULENC OF WYOMING CO., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 92-519-M 

A.C. No. 48-00154-05549 

Big Island Mine and 

Refinery 

ORDER OF DISMISSAL 

Before: Judge Morris 

The issues presented here are: (1) whether Secretary's Motion 

for Late Filing of her Proposal for Penalty should be granted; and 

(2) whether the proceedings should be dismissed because of a delay 

of 237 days in notifying Respondent of the proposed penalty. 

Factual Background: 

~" On October 2p 1991 1 a Citation was issued by the Federal 

Mine Safety and Health Administration ("MSHA"} to Respondent, 

pursuant to § 104 of the Federal Mine safety and Health Act (30 

u.s.c. § 814). on May 26p 1992, Respondent was notified of a 

proposed penalty assessment of $1,000. 

2. On August 14, 1992, the Secretary filed her motion to 

accept late filing of her Proposal for Penalty 1 pursuant to commission Rule 10, 29 C.F.R. § 2700.14. 

3. Pursuant to Commission Rule 27(a) 1 the Secretary1 s 

proposal for penalty should have been filed by July 31, 1992. The 

proposal for penalty was, in fact, filed on August 14, 1992, two 

weeks after the Commission 1 s deadline. 

4. Respondent moved to dismiss Secretary's proposal for 

penalty. 

2090 
Discussion 

I 

The Commission case law is well established. The late filing 

of a penalty proposal has been permitted where the Secretary shows 

adequate cause for the delay. An equally important facet concerning 

late filing involves prejudice to the operator. Salt Lake County 

Road Department, 3 FMSHRC 1714 (July 1981). In a subsequent 

decision, Medicine Bow Coal Company, 4 FMSHRC 882 (May 1982) the 

Commission elaborated on the decision in Salt Lake stating "[t]he 

Judge [in Medicine Bow] correctly interpreted Salt Lake as creating 

a two-part test. Salt Lake first established that the Secretary 

must show adequate cause for any delayed filing." 4 FMSHRC at 885. 

Furtherf "(w]e also heed in Salt Lake that adequate cause notwithstanding dismissal could be required where an operator demonstrates 

prejudice caused by the delayed filing," 4 FMSHRC at 885. 

In the instant case, the Secretary's justification for her late 

filing is that "[t]he case was sent by the Arlington office to 

Denver but not received by the O.!=nver. Office of the Solicitor until 

August 3, 1992." (See Penalty for Proposal! 3). 

I agree with Respondent that the above-stated bare assertion by 

the Secretary does not show adequate cause. 

The Secretary's 45 days were up on July 31, 1992. The case was 

apparently not sent to the Solicitor until after the deadline. No 

explanation is advanced for the Secretary's failure to comply with 

the deadline. An unexplained excuse cannot arise to the level of 

adequate cause. 

It is, however, appropriate to consider the issues raised in ·~he Secretary 1 s statement in opposition to Respondent's motion. 

The Secretary states that Respondent did not demonstrate any 

udice and merely seized upon a procedural irregularity to jusify the drastic remedy of dismissal. The Secretary's efforts to 

inject prejudice as an issue are rejected. As stated in Medicine 

the two-part test initially requires the Secretary to show 

udice" 

The Secretary in her statement further elaborates on her 

reasons for missing the penalty proposal filing deadline by two 

weeks and asserts that these reasons amount to "adequate cause. 91 

The Secretary explains the filing was two weeks late because: 

(1) changes in MSHA's civil penalty assessment process resulted in 

the need to recalculate many assessments and renotify many operators; (2) the invalidation of MSHA's "excessive history" program 

caused hundreds of citations to be dismissed and then refiled and 

reassessed; and (3) MSHA lacks sufficient clerical personnel. 

2091 
Essentially, the Secretary argues that MSHA was unusually busy 

as a result of its own policy changes and its mistake in trying to 

enforce its "excessive history" program, with the problem compounded 

by a lack of clerical personnel. 

All of Petitioner's excuses have been rejected previously by 

the Commission. Changes in administrative policy or practice do not 

constitute adequate cause. River Cement Co., 10 FMSHRC 1602 (Oct. 

1986). Since at least 1981, an unusually high workload and a shortage of clerical personnel do not constitute adequate cause. Price 

River Coal Co., 4 FMSHRC 489 (Mar. 1982); Salt Lake County Road 

DeRartment, supra. 

Furthermore notably missing from the Secretary's argument is 

any explanation why, in light of the asserted work overload, the 

Secretary failed to make use of the pre-established procedure for 

handling such problems. The leading decision on this issue, Salt 

Lake County Road Department, supra, accepted the excuses now offered by Petitioner (high workload and lack of clerical personnel) 

as "minimally adequate in this case," but also expressly warned that 

these excuses would not suffice-in the future. 3 FMSHRC at 1717. 

Moreover, the Commission clearly pointed out that if the Secretary 

needs additional time because of a high workload or lack of personnel, her remedy is to obtain an extension prior to the deadline as 

allowed by Commission Rule 9, 29 C.F.R. § 2700.9. 3 FMSHRC at 1717 

( fn, 8) , 

Inasmuch as the Secretary failed to establish adequate cause, 

the late filing of the Proposal for Penalty should be denied. 

II 

While Respondent only collaterally raises the issue (Brief, p. 

Sr fno 4 , the operator further asserts MSHA took 237 days to notify 

Respondent of the proposed penalty and thus did not comply with 

Section 105(a} of the Act. 

Section 105{a) of the Act, 30 u.s.c. § 815(a), provides that 

after the Secretary issues a citation or order under section 104, 

she shall within a reasonable time notify the operator of the 

proposed civil penalty to be assessed for the cited violation. 

The Mine Act does not define "reasonable time." However, the 

following statements of the Senate Committee are instructive: 

To promote fairness to operators and miners and 

encourage improved mine safety and health generally, such 

penalty proposals must be forwarded to the operator and 

miner representative promptly. The Committee notes, 

however, that there may be circumstances, although rare, 

when prompt proposal of a penalty may not be possible, and 

the Committee does not expected that the failure to 

2092 
propose a penalty with promptness shall vitiate any 

proposed penalty proceeding. 

s. Rep. No. 95-181, 95th Cong., 1st Sess. 24 34, reprinted in Senate 

Subcommittee on Labor, Comm. on Human Resources, 95th Cong., 2 

Sess., Legislative History of the Federal Mine Safety and Health 

Act, at 622 (1978). 

The Commission has apparently not addressed this issue but it 

has been considered by some Judges' decisions. 

In Heldenfels Brothers. Inc., 2 FMSHRC 851 (April 1980), a 

judge denied a motion to dismiss where there was a 220-day delay on 

the ground that MSHA's assessment procedures required considerable 

time and that the operator had not shown that it suffered any actual 

harm. However, in Anaconda Company, 3 FMSHRC 1926 (August 1981), 

another jud~e dismissed a case where there had been nearly a twoyear delay and the Secretary offered no reasons for the delay, but 

this same judge subsequently refused to dismiss a case for a 132-day 

delay because the operator had not claimed prejudice. Industrial 

Construction Corp., 6 FMSHRC 2'181 (Sept. 1984). Delays of a year 

and a half and two years have not been countenanced. Washington 

Corporation, 4 FMSHRC 1807 (October 1982). 

In the instant case, there was a delay of 237 days from when 

the Citation was issued to the issuance of the proposed penalty. 

However, the delay is within the parameters allowed in the above 

cited cases. 

While Respondent asserts it was "inherently prejudiced" by the 

delay, it has failed to allege any factual basis to establish such 

prejudice. 

Accordinglyv I enter the following: 

ORDER 

1. Respondent's Motion to Dismiss under Section 105(a) of the 

Act is DENIED. 

2o Secretary1 s motion to accept late filing of Proposal for 

Penalty is DENIED. 

3o Respondentvs Motion to Dismiss is GRANTED. 

Law Judge 

2093 
Distribution: 

Susan J. Eckert, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, co 80294 

(Certified Mail) 

Daniel A. Jensen, Esq., KIMBALL, PARR, WADDOUPS, BROWN & GEE, P.O. 

Box 11019, Salt Lake City, Utah 84147 (Certified Mail} 

ek 

2094 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 91992 

EDD POTTER COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA'l'ION (MSHA) , Petitioner 

v. 

EDD POTTER COAL COMPANY, 

Respondent 

) CONTEST PROCEEDINGS 

) 

) Master Docket No. 91-1 

) Docket No. KENT 91-680-R 

) through KENT 91-697-R 

) 

} Citation Nos. 9858737 

) through 9858754; 4/4/91 

) 

) Mine No. 2 

) Mine ID 15-05436 

) 

) CIVIL PENALTY PROCEEDING 

) 

) Docket No. KENT 91-1136 

) A.C. No. 15-05436-035310 

) 

) Mine No. 2 

) 

) 

ORDER OF DISMISSAL 

Before~ Judge Broderick 

December B, 1992, the Secretary filed a motion to dismiss ·~hese proceedings on the grounds that on May 11, 1991, the 

Respondent Edd Potter Coal CompanyQ and David Potter, principal 

of Respondent entered into plea agreements, agreeing to plead 

guilty to charges of conspiracy to defraud an agency of the 

United States in connection with the civil violations charged 

hereino Respondent contracted with Triangle Research to handle 

it.s dust sampling program. Triangle~s principal and agent 

admitted falsifying the samples submitted to MSHA and admitted 

that on numerous occasions they blew air on the filtered surfaces 

of manufactured dust samples. Harry White and Ronald Ellis of 

Triangle have been convicted of defrauding the Government and 

have received prison sentences. 

On August 10, 1992, Judge Joseph M. Hood, of the Eastern 

District of Kentucky, sentenced Edd Potter Coal Company to pay a 

fine of $25,000 and to 2 years probation. David Potter was 

sentenced to 2 years probation including 3 months of home 

detention and 3 months of community service. As part of the plea 

agreement the Secretary agreed to move to dismiss pending civil 

2095 
penalty proceedings against Respondent for violations of the laws 

governing the dust sampling program. 

I conclude that under the circumstances, dismissal of these 

proceedings effectuates the purposes of the Mine Act. 

Accordingly, these proceedings are DISMISSED. 

Distribution: 

"'~ A/iwdv.~ James A. Broderick 

Administrative Law Judge 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400q Arlington, VA 22203 (Certified Mail) 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, _'YA 24614 (Certified Mail) 

Hand delivered to Lead Defense Counsel Committee 

/fb 

209 6 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

RED DOG COAL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RED DOG COAL CORPORATION, 

Respondent 

nr r '1 91992 :vt \... /:; · 

) CONTEST PROCEEDING 

) 

) Master Docket No. 91-1 

) Docket No. KENT 91-698-R 

) Citation No. 9859294; 4/4/91 

) 

) Mine No. 3-A 

) Mine ID 15-15908 

) 

) CIVIL PENALTY PROCEEDING 

) 

) Docket No. KENT 91-1112 

) A.C. No. 15-15908-03525D 

) 

) Mine No. 3-A 

} 

) 

ORDER OF DISMISSAL 

Before~ Judge Broderick 

On December 9u 1992u the Secretary filed a motion to dismiss 

~hese proceedings on the grounds that on August 7u 199lu the 

Respondent Red Dog Coal Corporation and Ronnie Alan Edwardsr 

principal of Respondent entered into plea agreements, agreeing to 

plead guilty to charges of conspiracy to defraud an agency of the 

United States in connection with the civil violations charged 

hereino Respondent contracted with Triangle Research to handle 

its dust sampling program. Triangle 0 s principal and agent 

admitted falsifying the samples submitted to MSHA and admitted 

that on numerous occasions they blew air on the filtered surfaces 

manufactured dust samples. Harry White and Ronald Ellis of 

Triangle have been convicted of defrauding the Government and 

have received prison sentences. 

On August 7, 1992, Judge Samuel J. Wilson of the Western 

District of Virginia sentenced Red Dog coal Corporation to pay a 

fine of $30,000 of which $15,000 was suspended and to 2 years 

probation. Ronnie Alan Edwards was sentenced to pay a fine of 

$5,000 and to 2 years probation and 2 months home confinement. 

The Secretary agreed to move to dismiss pending civil penalty 

2097 
proceedings against Respondent for violations of the laws 

governing the dust sampling program. 

I conclude that under the circumstances, dismissal of these 

proceedings effectuates the purposes of the Mine Act. 

Accordingly, these proceedings are DISMISSED. 

diu,11.u.5 ,.Jvf3 (fl/~ w~ ;)dames A. Broderick 

L Administrative Law Judge 

Distribution: 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suita 400, Arlington, VA 22203 (Certified Mail) 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) .,,.... .. 

Hand delivered to Lead Defense Counsel committee 

/fb 

2098 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2g1992 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

DAVIS A. SHOULDERS 

EMPLOYED BY PYRO MINING CO., 

Respondent 

Docket No. KENT 92-17 

A.C. No. 15-13920-03720-A 

Pyro No. 9 Wheatcroft 

DECISION 

Appearances: 

Before: 

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

U.S. Department of Labor, Arlington, Virginia 

for Petitioner; 

Flem Gordon, Esq., P.S.C., Madisonville, 

Kentucky, for Respondent. 

Judge Barbour 

This civil penalty proceeding was initiated by the Secretary 

of Labor ("Secretary") against Davis A. Shoulders pursuant to 

Section llO(c) of the Federal Mine Safety and Health Act of 1977p 

30 U.S.C. § 801 seq" (the n

1

Act 11 ) o 1 The Secretary charges, 

in~er p that at all times relevant to this matter 1 Shoulders 

was employed by Pyro Mining Company ("Pyro") as the chief 

electrician at Pyro No. 9 Wheatcroft Mine and that on October 26, 

1990, he was acting as an agent of corporate operator Pyro when 

he knowingly authorizede ordered or carried out a violation of 30 

C.F.R. § 75.512v a violation for which Pyro was cited. 

Section llO(c) of the Act states: 

Whenever a corporate operator violates a mandatory health or safety 

standard or knowingly violates or fails or refuses to comply with any order 

issued under this Act or any order incorporated in a final decision issued 

under this Act, except an order incorporated in a decision issued under 

subsection (a) or section 105(c), any director, officer, or agent of such 

corporation who knowingly authorized, ordered or carried out such violation, 

failure, or refusal shall be subject to the same civil penalties, fines, and 

imprisonment that may be imposed upon a person under subsections (a) and (d). 

30 u.s.c. S 820(c) 

2099 
The Secretary proposes that a civil penalty of $1,000 be assessed 

against Shoulders for the knowing violation. Shoulders generally 

denies the Secretary's allegations. 

Following the filing of the petition, the Secretary moved to 

stay the matter, asserting that an ongoing criminal investigation 

of Pyro and several employees at the mine by the U.S. Department 

of Justice warranted deferring the civil penalty proceeding until 

the Department determined whether to bring criminal charges 

against any individual involved in the civil penalty proceeding. 

Shoulders did not oppose a stay, and the Secretary's motion was 

granted. subsequently, the stay was dissolved upon the 

Secretary's assertion that the investigation no longer overlapped 

with conditions at issue in the civil penalty proceeding, and the 

matter was scheduled to be heard on December 1, 1992, in 

Nashville, Tennessee. 

Counsel for Shoulders then moved for summary judgement, 

asserting as uncontroverted fact that on October 26, 1990, Pyro 

was not a corporate entity but was instead a partnership. 

Counsel attached to the motion a copy of a statement of Assumed 

Name filed on January 27, 1982, with the Secretary of State of 

the Commonwealth of Kentucky. The document states that w. K. Y. 

Mining (Pyro) Inc., and Costain Mining (Pyro) Inc., exist as a 

general partnership in the State of Illinois and intend to 

conduct and transact business in Kentucky under the assumed name 

of Pyro Mining Company. Because Section llO(c) subjects only 

corporate agents to !ability, counsel for Shoulders moved that 

the case be dismissed. Motion for Summary Decision 1-3. 

The Secretary opposes the motion. Counsel for the Secretary 

contends that while Section llO{c) contemplates liability only 

for agents of "corporate operators," Shoulders is not entitled to 

summary judgement since Shoulders nwas employed by a corporate 

operator on the date the alleged violation occurred.uv Br. in Op. 

·co Resp 0 s. Mot. for Sum. Judg't. 2. The essence of the 

Secretaryes position is that~ 

Pyro Mining Company is the product of two 

corporations, w. K. Y Mining (Pyro) Inc., and 

Costain Mining (Pyro) Inc.p that apparently 

farmed a 01 general partnership. 'e Thus, the 

issue not whether an employee of a noncorporate entity can be subject to § llO(c) 

liability, but whether a corporation can 

exonerate its agents from the responsibility 

that Congress intended then to shoulder 

simply by entering into partnership with 

another corporation. Affirming this 

proposition would create a result completely 

contrary to (the] language and the spirit of 

2100 
Id. 3. 

the Act. . •• Agents of an entity created 

and controlled by two or more corporations 

are agents of a "corporate operator." 

REQUIREMENTS FOR SUMMARY DECISION 

Commission Rule 64(b) is clear. 29 C.F.R. § 2700.64(b). It 

states that, "A motion for summary decision shall be granted only 

if the entire record, including the pleading, depositions, 

answers to interrogatories, admissions, and affidavits shows: 

(1) That there is no genuine issue as to any material fact; and 

(2) that the moving party is entitled to summary decision as a 

matter of law." 2 Id. As the Commission has pointed out, summary 

decision is an extraordinary procedure and must be entered with 

care, for it has the potential, if erroneously invoked, of 

denying a litigant the right to be heard. Thus, it may only be 

entered when there is no genuine dispute as to material facts and 

when the party in whose favor it is entered is entitled to 

summary decision as a matter ,of law. Missouri Gravel Co., 3 

FMSHRC 2470, 2471 (November 1981). Here, the burden is on 

Shoulders, as the moving party, to establish his right to summary 

decision, and I conclude that Shoulders has met that burden. 

RATIONALE 

The language of Section llO(c) is unambiguous in imposing 

liability upon "corporate operators" and upon "any director, 

officer, or agent of such corporation" (emphasis added). The 

Secretary does not dispute that Pyro is a general partnership 

composed of two corporations. 3 However, the Secretary's position 

Commission Rule 64(a) provides that a motion for summary decision 

may be filed "at any time after commencement of a proceeding and before 

scheduling of a hearing on the merits". 29 C.F.R. § 2700.64(a). Although, 

Shoulders' motion was filed out of time in that a hearing had been scheduled 

prior to its submission, for the reasons stated in this decision it would make 

a little sense to proceed with the scheduled hearing. 

Indeed, there is no factual dispute in this case. The parties 

have stipulated as follows: 

(1} Pyro Mining Company was a general partnership composed of two 

corporations W. Ko Y. Mining (Pyro), Inc. and Costain Mining (Pyro), Inc., 

(2) Pyro Mining Company was a general partnership pursuant to the laws 

of the State of Illinois; 

(3) Pyro Mining Company was recognized and authorized to do business 

in the Commonwealth of Kentucky as a general partnership; 

(continued ••• ) 

2101 
is that Pyro, as a partnership entity composed of ~wo 

corporations, has a "corporate nature" and that Shoulders was 

thus the employee of a "corporate operator." Id. 5 In short, 

the Secretary argues that because Pyro's business arrangement is 

much closer to that of a traditional corporation than to that of 

3 ( ••• continued) 

(4) Pyre Mining Company was not incorporated in any jurisdiction; 

(5) The Uniform Partnership Act had been adopted in both the State of 

Illinois and the Commonwealth of Kentucky; 

(6) Pyro Mining Company was authorized to do business as a general 

partnership in the Commonwealth of Kentucky and operated in good standing 

within the Commonwealth; 

(7) W. K. Y. Mining (Pyro), Inc., had its primary corporate offices at 

653 South Hebron Avenue, Evansville, Indiana; 

(8) Costain Mining (Pyre), Inc., had its principal corporate offices 

at 653 South Hebron Avenue, Evansville, Indiana; 

(9) Pyre Mining Company operated the Pyro No. 9 Wheatcroft Mine, Mine 

I.D. No. 15-13920; 

(10) Respondent, Davis A. Shoulders, was an employee of Pyro Mining 

Company, a general partnership; 

(11) The year in which the violation was issued, the Pyro No. 9 

Wheatcroft Mine produced approximately 2,651,687 tons of coal per year; 

{12) The year in which the violation was issued, approximately 350 

employees were employed at the Pyro No. 9 Wheatcroft Mine; 

13} Respondent, Davis Shoulders, worked at the Pyre No. 9 Wheatcroft 

·Mine; 

(14) on October 29, 1990, Mr. Curtis Harte, MSHA Inspector and 

authorized representative of the Secretary of Labor, issued a 

Section 104(d)(2) order pursuant to the Federal Mine Safety Health Act of 1977 

and the order issued is Number 3551162; 

~15) The order charged that Pyro Mining Company violated 

Section 30 C.F.R. 75.512, an alleged electrical hazardous condition, 

(16) on July 10, 1991, and after an investigation, the Mine Safety & 

Health .1\dministration assessed a $1, 000 penalty against Respondent Davis 

Shoulders, alleging that Respondent was an agent of a corporate operator, that 

he knew or should have known of the violative condition cited in Order No. 

3551162, and pursuant to Section llO(c) of the Act, he would be held 

personally liable for the violation cited in Order No. 3551162; 

(17) The notice of contest was timely and properly filed by Respondent; 

this tribunal has jurisdiction over the named parties and subject matter. 

Stipulations 1-2. 

2102 
a traditional partnership, Pyro should be considered a defacto 

corporation for the purpose of this proceeding. I reject this 

view. 

The language of Section llO(c) of the Act restates 

Section 109(c} of the Federal Coal Mine Health and Safety Act 

of 1969, 30 u.s.c. § 819(c) (1976), and is designed to reach 

decision makers responsible for the illegal acts of corporate 

operators. Congress, in choosing to make corporate directors, 

officers and agents legally responsible for violations of the 

Act, purposefully distinguished between those working for and/or 

acting on behalf of corporate operators and those similarly 

situated working for and/or on behalf of non-corporate operators; 

~ for partnerships or sole proprietorships. This distinction 

has been upheld by the courts and by this Commission. Richardson 

v. Secretary of Labor, 689 F.2d. 632 (6th Cir. 1982), off'g 

Secretary v. Kenny Richardson, 3 FMSHRC 8 (January 1981). 

Moreover, it is a distinction based upon a generally accepted 

concept of business organization that recognizes the corporation 

as a legal creation of the state with powers derived from the 

state and applicable law. 

While the Secretary notes that at common law a corporation, 

generally, was not permitted to form a partnership with another 

corporation, she fails to acknowledge that "in most 

jurisdictions, the power to participate in a partnership is 

recognized by statute or granted in corporate charters." 18 B. 

Am Jur 2d, Corporation§ 2117 (1985); Partnership Act§ 2.6. 

Certainly, when the Mine Act was enacted, it was not unheard of 

for a partnership to be composed of corporate partners, and in 

limiting individual liability for knowing violations to 

directorsq officers and agents of corporations, I assume Congress 

meant exactly what it statedo. In my viewu the judges of this 

Commission are not authorized to decide that the directorsp 

officers and agents of a non-corporate business entity acting as 

an operator may be held liable under Section llO(c) because the 

entity embodies and/or exercises various corporate attributeso 

Not only would such a decisional approach run counter to the 

specific wording of Section llO(c)v it would invite legal 

uncertainty by premising liability upon whether an organization 

was sufficiently "corporate-like 99 in nature to be considered for 

Mine Act purposes a "corporate operatoro" 

The Secretary points outv and I fully recognize, that by 

subjecting directorsv officers and agents of corporations to 

personal liability, Congress was attempting to create an added 

incentive for compliance, since corporations might pass off their 

monetary penalties as the cost of doing business. See Richardson, 

689 F.2d at 632-633, {6th Cir. 1982) Cowin and Company v. FMSHRC, 

612 F.2d 838, 840 (4th Cir. 1979). The Secretary may well be 

right in asserting that excusing personal liability in the 

circumstances of this case has the potential for creating a 

2103 
loophole in the operator's incentive to comply with the Act and 

its regulations. However, I agree with Commission Administrative 

Law Judge Gary Melick, who after entertaining similar arguments 

from the Secretary, stated: 

The Secretary, in essence would have me amend 

Section llO(c) to hold liable agents, not 

only of corporate operators, but also agents 

of partnerships, composed of two 

corporations. An administrative law judge is 

certainly not in a position to make such an 

amendment and ..• [is] certainly bound by 

the plain, clear and unambiguous language of 

the statute. 

Paul Shirel, employed by Pyro Mining Co., 14 FMSHRC , Docket 

No. KENT 92-73 8 etc. (November 17, 1992) (ALJ Melick~ip op.3. 

As Judge Melick cogently pointed out, it is Congress that has 

chosen to base personal liability upon a corporate distinction, 

and it is Congress that should decide whether amendment of the 

provision is warranted in light .of these and similar 

circumstances. Id. Accordin~ly, and for the foregoing reasons, 

this proceeding is DISMISSED. 

Distribution~ 

J)tYV;d £ 5vv-i bcu/LDavid F. Barbour 

Administrative Law Judge 

(703) 756-5232 

Steve Do Turowv Esq.u Office of the Solicitor, U.S. Department of 

Labor., 4015 Wilson J3oulevard 8 Arlington, VA 22203 {Certified 

l) 

Flem Gordonu Esq., Gordon and Gordon, P.S.C., P.O. Box 1305, 

Madisonvil ff KY 42431-1305 (Certified Mail) 

epy 

In opposing Shoulder's Motion for Summary Judgement, counsel for 

the Secretary also argued that if the Secretary's pleadings failed to allege 

sufficiently the presence of a corporation, the Secretary should be allowed to 

a.mend her petition to include w. K. Y. Mining (Pyre) Inc., and Costain Mining 

(Pyre) Inc., as entities that operated the mine in which Shoulder's worked. 

Br. in Op. to Resp's. Mot. for sum. Judg't 10 N.8. In effect, the Secretary's 

pleadings would then allege that Shoulders was an agent of either of the two 

corporations. However, in a letter dated November 30, 1992, Counsel for the 

Secretary, in effect, withdrew this request. 

2104 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

C) r· 1992 f.J y , 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 92-231 

A.C. No. 15-14533-03542 

v. 

LUCKY BRANCH COAL CO.p INC.u 

Respondent 

: Docket No. KENT 92-535 

A.C. No. 15-14533-03543 

Appearances: 

Before: 

Mine No. 4 

DECISION APPROVING SETTLEMENT 

Thomas A. Grooms( Esquire, Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Petitioner; 

Don Hogg, Vice-President, Whitesburg, 

Kentucky, for Respondent 

Judge Melick 

These cases are before me upon petitions for assessment 

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

Safety and Health Act of 1977 (the Act). During hearings, 

the parties filed a motion to approve settlement and to 

dismiss the caseso A reduction in penalty from $1,145 to 

$850 is proposed. I have considered the representations and 

documentation submitted in these casesr and I conclude that 

che proffered settlement is appropriate under the criteria 

set forth in Section llO(i) of the Act. 

WHEREFORE, the motion ~or a 

:iRM:rTEDP and it is ORDERED !that 

$850 within 30 days of t~is J ~v 

) elick 

Admi istrative 

703- 56-6261 

I 

nt is 

nalty 
J'BDBRAL lll'.11B SU'Bft DD HBAL'l'B ltBVXBW COlllllSS:IOB 

OFFICE OF ADMINISTRATIVE LAW JIJ)GES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

:"">·, -:-' ~ ... 

. ) ~~ ·~; 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH . . ADMINISTRATION (MSHA), . Docket No. WEVA 91-2096 • 

Petitioner . • A.C. No. 46-01438-03900A 

: 

v. . . Ireland Mine . . ALLAN GOODE, Employed by . 

0 

CONSOLIDATION COAL COMPANY, . .. 

Appearances: 

Before: 

Respondent . 

• 

DECISION 

J. Philip Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for 

Petitioner; 

David J. Hardy, Esq., Charleston, West Virginia, 

for Respondent. 

Judge Fauver 

This is a fetition for a civil penalty against a foreman 

under § llO(c) of the Federal Mine Safety and Health Act of 

19 7 7 0 3 O u. S • C.. § 8o1 et seq.· 

~aving considered the hearing evidence and the record as a ~holeg I find that a preponderance of the substantialu reliableu 

and probative evidence establishes the Findings of Fact and 

further findings in the Discussion below: 

~ Section 110 (c) provides: "Whenever a corporate operator ~iolates a mandatory health or safety standard or knowingly 

violates or fails or refuses to comply with any order issued under 

this Act or any order incorporated in a final decision issued under 

this Act, except an order incorporated in a decision issued under 

subsection (a) or section 105(c), any director, officer, or agent 

of such corporation who knowingly authorized, ordered, or carried 

out such violation, failure, or refusal shall be subject to the 

same civil penalties, fines, and imprisonment that may be imposed 

upon a person under subsections (a) and (d)." 

2106 
FINDINGS OF FACT 

1. At all relevant times, Consolidation Coal Company 

operated Ireland Mine in West Virginia, producing coal for sale 

or use in or substantially affecting interstate commerce. 

2. Respondent, Allan Goode, was employed by Consolidation 

Coal Company as a section foreman at the Ireland Mine for 23 of 

his 26 years at the mine, supervising seven to nine miners. His 

typical crew consisted of two roof bolters, a continuous miner 

operator, a loading machine operator, two shuttle care operators, 

a mechanic and sometimes two center roof bolters. 

3. On or about March B, 1990, 2 Geode's crew was cutting 

an overcast in the 3 North Face Section. An overcast requires a 

higher cut than normal because two entries will cross over the 

area. In addition, 12 foot planks are installed on 2 1/2 to 3 

foot centers with wire mesh. Without an overcast, roof planks 

are normally on 4 foot centers and wire mesh is not used. 

4. Goode's crew was using a 1036 Jeffrey Continuous Miner 

Machine. George Holmes was the miner operator, the left bolter 

was Donald Conner, and the right bolter was Charles Minor. The 

continuous miner was equipped with a mounted, or "integral," roof 

bolting machine and plank jack on each side of the miner, and an 

automated temporary roof support system ("ATRS") of four jacks 

(two jacks on each side of the miner). 

5. Permanent roof support in the overcast required double 

planks with wire mesh and, if necessary, cribbing boards to fit 

irregular places in the roof. To build an overcast, the 

continuous miner cuts down existing roof support and cuts into 

the roof to raise the height for the overcast. The miner is then 

backed up to a supported roof area, where a double plank, a 

section of wire mesh, and if necessary cribbing boards are 

stacked on the plank jackso The miner is then trammed forward 

and the ATRS jacks are raised firmly against the roof. After ~hat is doneu the roof bolters raise the plank jacks~ drill the 

roof holes and install roof bolts pinning the double plank and 

materials to the roof. The ATRS is then lowered and the cycle is 

repeatedo 

60 The two plank jacks on the continuous miner were 

between the front and rear ATRS jacks. The roof control plan 

provided that the roof bolters "will not advance inby the last 

permanent [roof] support until the ATRS system is placed firmly 

against the roof.~ Each crew member was fully aware of this 

requirement. 

2 The petition alleges a violation on March 9, 1990. The 

witnesses were not in agreement whether the incident in question 

was on March 8, 1990, or March 9, 1990. My finding is that it was 

on or about March s, 1990. This is not a significant variance. 

2107 
7. On the night in question, the crew installed the first 

plank without incident. When they were installing the second 

plank, pieces of the roof fell, knocking down the mesh, cribbing 

boards and plank. Goode came upon the scene when members of the 

crew were trying to free the wire mesh from rocks that had fallen 

from the roof. 

8. Goode was known for having a short temper, and became 

angry on the spot. He asked the miners "What in the hell is 

going on?" and impatiently stated that "one man" could do the 

job. With that, Goode climbed up on the continuous miner and 

helped to restack the plank, mesh and cribbing boards on the 

plank jacks. The miner was trammed forward to the new plank 

position. The ATRS jacks were raised. Goode, on top of the 

continuous miner and crouching between the front and rear ATRS 

jacks, steadied the stacked material on the plank jacks, waiting 

for the bolters to raise the plank jacks and bolt the plank. The 

stack held by Goode came loose, and a plank fell against Charles 

Minor, hitting him on the head. Minor told Goode, "This is 

unsafe" and Goode replied, "So is walking down the street, but we 

have to do it." Tr. so. Minor and other members of the crew 

were intimidated by Geode's angry tone and manner; they had come 

to recognize Geode's displays·of temper as permitting no response 

or explanation from a subordinate, evoking only silence and 

motivation to "keep out of his way." 

9. Goode and the crew restacked the material on the plank 

jacks and Goode again steadied the material, crouching between 

the ATRS jacks, while the bolters lined up the auger holes and 

raised the plank jacks. Goode left as the bolters were drilling 

through the plank between the ATRS jacks. 

10. During the bolting of the second plank, the ATRS system 

was not firmly placed against the roof. The left ATRS jacks were 

not touching the roof because of the cavity left by the roof 

fallo The left front jack was 12 to 18 inches from the roof and ~he left rear jack was not touching the roof o This meant that 

Goode and the two roof bolters worked outby the last permanent 

roof support when the ATRS jacks were not firmly placed against 

the roof. This was a violation of the roof control plan~ 

1lo Page Whorton was on the left side of the miner and 

observed that the two left-side ATRS jacks were not touching th~ 

roof. He told the left roof bolteru Conneru that the left jack8 ~ere not touching the roof" conner immediately said 11 something"'1 

to Goode but Wharton could not hear the words. Goode continued ~ith the process of having the crew install and bolt the second 

plank outby the last permanent roof support. 

12. Wharton did not tell Goode the ATRS system was not 

firmly against the roof because (1) he told Conner and Conner 

immediately spoke to Goode, (2) he assumed Goode knew the ATRS 

was not firm against the roof and that Goode decided to install 

the second plank despite this fact, and (3) he was intimidated by 

Geode's angry manner and voice. 

2108 
13. Charles Minor, the right bolt.er, observed that at least 

one of the left ATRS jacks was not touching the roof. He did not 

tell Goode because (1) he felt intimidated by Geode's angry 

remarks to him and (2) he assumed that Goode knew the ATRS system 

was not firmly against the roof and that Goode decided that, 

despite this fact, he wanted the crew to drill and bolt the 

second plank. They did so, even though this violated the roof 

control plan. 

14. Donald Conner, the left roof bolter, testified that he 

did not see the ATRS jacks and could not tell whether or not they 

were touching the roof. He testified that he told Goode they 

were having problems and that if the ATRS did not reach the top 

they should get jack extensions or put blocks under the miner 

cleat tracks, to raise the ATRS to reach the top. Tr. 150. 

Goode testified that no one said anything to him about jack 

extensions or suggested to him in any way that the ATRS was not 

firm against the roof, and that he could not see the ATRS jacks 

because he was crouched on top of the miner, steadying the stack 

of materials on the plank jacks. 

15. Charles Minor reported the incident to David Clarke, 

the UMWA Safety Com:mitteeman,-·because he felt that Goode was 

responsible for violating the roof control plan. The union 

requested MSHA to investigate the matter under § 103(g) of the 

Act. On March 19, 1990, an MSHA inspector investigated and cited 

the corporation for a violation of .the roof control plan. On 

March 22u 1990u the company notified Minor and Conner they were 

suspended with intent to discharge for violating the roof control 

plan. The company did not take action against Goode. The 

company paid a civil penalty of $1,300.00 for the roof control 

violation, without contest. 

160 The discharge decision went to arbitration under the 

labor management contract. The arbitrator found that the company 

cause t.o discipline Minor and Conner but 91 compellingr 

·'.extenuating circumstances 1u mitigated against discharge. 

Specifically 0 t.he arbitrator found that HForeman Goodeu acting on 

behalf of u and as mine managernentu had such knowledge of the 

precipitant commission of the violation as to constitute culpable 

fault by managemento" Exho G-12 0 p. 1. The arbitrator reversed ~he discharges and ordered suspensions of Minor and Conner 

;_,Jithout pay from March 22 u 1990 0 until their next scheduled 

'-rorkshift. after his decision on April 3 0 1990 o 

DISCUSSION WITH FURTHER FINDINGS 

On or about March 8 0 1990u Goode and his crew installed a 

plank 0 mesh and cribbing boards outby the last permanent roof 

support when the ATRS was not firm against the roof. The crew 

had never done this before. They knew it violated the roof 

control plan and that if ATRS jacks did not reach the roof, they ~hould use jack extensions or put blocks under the cleat tracks 

the miner to be sure that the ATRS was firm against the roof. m~in explanation for the crew's conduct that night is Foreman 

2109 
Geode's behavior. His demeanor in losing his temper and 

screaming at employees made it very difficult for subordinates 

to tell him the ATRS was not engaged properly. His actions 

indicated to the crew that he was angry about the delay in 

installing the second plank: by angrily standing on the miner and 

steadying the plank for drilling, he indicated that he wanted the 

crew to advance the miner, line up the augers, drill the roof 

holes, and bolt the plank to the roof without further comment or 

delay. The arbitrator found that Goode displayed "culpable fault 

by Management" in connection with the violation by the roof 

bolters. I similarly find that Goode was at fault based on the 

evidence in this case. 

Although Goode contributed to a violation of the roof 

control plan by his conduct (intimidating the crew and showing an 

angry, aggressive intention to install the second plank without 

further comment or delay by any of the crew), the question under 

§ llO(c) of the Act is whether, as an agent of the corporation, 

he "knowingly authorized, ordered, or carried out such 

violation 0>eoo" 

Section 3(c) of the Act defines "agent" as "any person charged with responsibility f-or the operation of all or part of a 

coal or other mine or the supervision of the miners in a coal or 

other mine." This includes section foremen. 

The Commission has interpreted the term "knowingly" as follows~ 

"Knowingly," as used in the Act does not have 

any meaning of bad faith or evil purpose or 

criminal intent. Its meaning is rather that 

used in contract law, where it means knowing 

or having reason to. know. A person has 

reason to know when he has such information 

as would lead a person exercising reasonable 

care to acquire knowledge of the fact in 

question or infer its existencee 92 Fo 

supp. at 780. We believe this interpretation 

is consistent with both the statutory 

language and the remedial nature of the Coal 

Act. Xf a person in a position to protect ~mployee safety and health to act on 

<the basis information that gives him 

knowledge or reason to know of the existence 

of ~ violative conditionu he has acted 

knowingly and in a manner contrary to the 

remedial nature of the statute. 

§ecretary v. Bichardson, 3 FMSHRC 8, 16 (1981), 689 F.2d 632 (6th 

Cir .. 1982), cert. denied, 461 U.S. 928 (1983). 

There is no testimony that anyone told Goode directly that 

the A~RS did not reach the roof, and the evidence is unclear 

whether Goode could see the jacks from his crouched position on 

2110 
the miner. I credit Wharton's testimony that he told Conner that 

the left ATRS jacks did not reach the roof and that Conner 

immediately spoke to Goode. However, Conner testified that he 

told Goode if or in case the ATRS jacks did not reach the roof 

they should get jack extensions or put blocks under the miner 

cleat tracks. 

The deciding issue is whether Good had reason to know that 

the ATRS was not firmly placed against the roof. Goode knew that 

there was a roof fall that left a cavity about 1 1/2 feet deep by about 6 to 8 feet long, and the cavity ran from the left side of 

the miner to the right (as Goode looked inby). Tr. 217. He had 

reason to believe that at least some of the ATRS jacks would go 

into the cavity and might fail to press against the roof. Also, 

the wire mesh above the left ATRS jacks did not audibly "crunch" 

against the roof and in the circumstances Goode had a reasonable 

duty to listen for the crunch. Ordinarily, he could expect the 

roof bolters to observe the ATRS jacks and to be sure that they 

were pressed against the roof before they advanced to raise and 

bolt the plank. However, by his demeanor in (1) screaming at 

employees and displaying intense anger at the crew's delay in 

installing the second double plank, and (2) angrily climbing up 

on the continuous miner to steady the plank while waiting for the 

bolters to raise the plank, drill the roof and bolt the plank, Goode created a safety risk that his crew would be intimidated 

and not tell him if the ATRS did not reach the roof. 

l find that Goodeus unsafe conduct, combined with a 

reasonable likelihood that the ATRS jacks in the cavity would not 

reach the roof and the fact that the wire mesh on the left side 

did not audibly "crunch" against the roof, gave Goode reason to 

know 3 that the roof control plan was being violated. I 

therefore find that Goode "knowingly authorized, ordered or 

carried out [a] violationH within the meaning of § llO(c) of the 

Impatience and anger by a supervisor are not conducive to a ~orking environment or compliance with safety standards. 

Goodevs conduct endangered Goode, who steadied the plank outby 

the last permanent roof support 0 and endangered the two bolters 1 

Nho drilled the roof and~bolted the plank outby the last 

ioermanent. Z'Oof support:. o L) 

:s ""A person has reason to know when he has such information as 

Bould lead a person exercising reasonable care to acquire knowledge 

©f the fact in question or to inf er its existence o e~ Secretary v o 

~ichardson 0 §Uprau 3 FMSHRC l6o 

~ I do not accept the suggestion by Conner's testimony that 

t.he bolters were under supported roof when they drilled and bolted 

the plank~ He suggested that they did not have to extend their 

bodies beyond the last roof support and could steady the plank, 

drill the roof, and bolt the plank within "arm's length" of the 

last roof support. I find that the roof control plan forbade 

2111 
Considering the applicable criteria in § llO(i) for 

assessing a civil penalty, I find that a penalty of $1,000.00 is 

appropriate for this violation. 

CONCLUSIONS OP LAW 

l. The judge has jurisdiction. 

2. Respondent knowingly violated 30 C.F.R. I 75.220(a)(l) 

(roof control plan) within the meaning of § llO(c) of the Act. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent, Allan Goode, shall 

pay a civil penalty of $1,000.00 within 30 days from the date of 

this decision. 

Distribution: 

William Fauver 

Administrative Law Judge 

Jo Philip Smith, Esq., Office· of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Fourth Floor, Arlington, Virginia 22203 (Certified Mail) 

David J. Hardy, Esq., Jackson and Kelly, 1600 Laidley Tower, Post 

Office Box 553, Charleston, West Virginia 25322 .(Certified Mail) 

/fcca 

advancing beyond the last roof support -- whether by an arm, a leg 

or the entire body. 

2112 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

OEC 301992 

HOMESTAKE MINING COMPANY, 

Contestant, 

CONTEST PROCEEDINGS 

v. 

Docket No. CENT 91-217-RM 

citation No. 2653241; 8/8/91 

Homestake Mine 

Docket No. CENT 91-226-RM 

Order No. 2653196; 8/23/91 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Respondent 

Lead Mine 

Mine I.D. 39-00055 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 92-344-M 

A.C. No. 39-00055-05681 

v. 

Homestake Mine - Lead 

HOMESTAKE MINING COMPANY OF 

CALIFORNIA, 

Appearances~ 

Before: 

Respondent 

DECISION 

Henry Chajet, Esq., Ann Simmons, Esq., JACKSON & 

KELLY, Washington, DC, 

for Contestant/Respondent; 

Robert J. Murphy, Esq.u Kristi Floyd, Esq., Office 

of the Solicitoru U.S. Department of Labor, 

Denveru Colorado, 

for Respondent/Petitioner; 

Gene Ruff, President, Local 7044, United Steelworkers of America, Lead, South Dakota, 

for United steelworkers of America. 

Judge Morris 

These consolidated cases are contest proceedings and a civil 

penalty proceeding arising pursuant to the Federal Mine Safety 

2113 
and Health Act of 1977, 30 U.S.C. S 801, et~ (the "Act"). 

The civil penalty proceeding herein is for the alleged violations 

of mandatory regulations enacted pursuant to the Act. 

An expedited hearing commenced in Docket No. CENT 91-217-RM 

on September 17, 1991. At the hearing held in Denver, Colorado, 

the United Steelworkers of America were granted leave to 

intervene. 

After an extensive conference, Contestant Homestake Mining 

Company of California ("Homestake") was granted leave to withdraw 

its motion for an expedited hearing. The case was further stayed 

until the Secretary proposed a civil penalty. 

On November 5, 1991, the Judge vacated Closure Order No. 

3630266. 

On July 16, 1992, Docket Nos. CENT 91-217-RM and CENT 91-

226-RM were consolidated. 

On October 21, 1992, Docket No. CENT 92-344-M was assigned 

to the Presiding Judge. 

On October 27, 1992, Docket Nos. CENT 91-217-RM, CENT 91-

226-RM, and CENT 92-344-M were consolidated. 

on November 6, 1992, a settlement motion, executed by Contestant and Secretary, was filed. The motion was also served on 

Cathy M. Dupree, the Miners' Representative of Homestake Mining 

Company. 

No objection has been filed to the settlement motion. 

~n support of the motion, Contestant and Secretary state as 

:'.:ollows ~ 

Order Noa 3909125 

(a) A section 104(g) (1) 

Homestake by the Secretary on 

~ion of 30 C.F.R. § 48.7(c). 

penalty of $20,000. 

Order No. 3909125 was issued to 

March 25, 1991, alleging a violaThis order was later assessed a 

On the basis of information supplied by Homestake, the 

Secretary agreed to reduce the proposed penalty on this Order 

from $20,000 to $15,000. 

2114 
Citation No. 3909122 

(b) A Section 104(a} Citation No. 3909122 was issued to 

Homestake by the Secretary on March 16, 1992, alleging a violation of 30 C.F.R. § 57.14205. This order was later assessed a 

penalty of $9,000. 

On the basis of information supplied by Homestake, the 

Secretary agreed to reduce the proposed civil penalty on this 

Citation from $9,000 to $6,000. 

Citation No. 3901926 

(c) A Section 104(a) Citation No. 3909126 was issued to 

Homestake by the Secretary on Mary 25, 1991, alleging a violation 

of 30 C.F.R. § 48.7(c). This Citation was later assessed a penalty of $20,000. 

On the basis of information supplied by Homestake, the 

Secretary agreed to reduce the proposed civil penalty on this 

Citation from $20,000 to $15,000. 

I have reviewed the proposed settlement and I find it is 

reasonable and in the public interest. It should be approved. 

ORDER 

lo The stay of proceeding is LIFTED. 

2o The settlement agreement is APPROVEDo 

3a Order Noo 3909125 and the amended penalty of $15,000 

are AFFIRMED. 

4o Citation Noa 3909122 and the amended penalty of $6QOOO 

are .!il'FIRMEDa 

5a Citation Noa 3901926 and the amended penalty of $15,000 

are AFFIRMEDa 

6a contestant/Respondent Homestake Mining Company is 

ORDERED TO PAY to the Secretary of Labor the sum of $36,000 

within 40 days of the date of this decision. 

2115 
7. Contest proceedings CENT 91-217-RM and CENT 91-226-RM 

are DISMISSED. 

Law Judge 

Distribution: 

Henry Chajet, Esq., Mark No Savit, Esq., JACKSON & KELLY, 1701 

Pennsylvania Avenue, NW, Suite 650, Washington, DC 20006 

{Certified Mail) 

Ms. Cathy M. Dupree,· Miners' Representative, Mr. Gene Ruff, 

President, Local 7044, United Steelworkers of America, c/o 

HOMESTAKE MINING COMPANY OF CALIFORNIA, 215 West Main Street, 

PoOo Box 875u Leadu SD 57754-1603 (Certified Mail 

Robert Jo Murphy 0 Esqou Kristi Floydu Esq.u Office of the Solitor0 U.So Department of Laboru 1585 Federal Office Building, 

1961 Stout Streetv Denver, Colorado 80294 (Certified Mail) 

ek 

2116 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 301992 

SHADY LANE COAL CORPORl..TION 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHADY LANE COAL CORPOF.A.'I'ION 

Respondent 

) CONTEST PROCEEDINGS 

) 

) Master Docket No. 91-1 

) Docket No. VA 91-367-R 

) through VA 91-368-R 

) 

) Citation Nos. 9861503 

) through 9861504; 4/4/91 

) 

·) Mine No. 3 

) Mine ID 44-06549 

) 

) CIVIL PENALTY PROCEEDING 

) 

) Docket No. VA 91-491 

) A.C. No. 44-06549-03507D 

) 

) Mine No. 3 

) 

) 

ORDER OF DISMISSAL 

Before~ Judge Broderick 

On December 17, 1992, the Secretary filed a motion to 

dismiss these proceedings on the grounds that on August 9, 1991, 

Respondent Shady Lane Coal Company, and Ted Osborne, Jr.u 

principal of Shady Lane Coal Companyu entered into plea 

agreementsu agreeing to plead guilty to charges of conspiracy to 

defraud an agency of the United States in connection with the 

civil violations charged herein. Respondent contracted with 

Triangle Research to handle its dust sampling program. 

Triangle 1 s principal and agent admitted falsifying the samples 

submitted to MSHA and admitted that on numerous occasions they 

blew air on the filter surfaces of manufactured dust samples. 

Harry White and Ronald Ellis of Triangle have been convicted of 

defrauding the government and have been sentenced to prison. 

Respondent provided Triangle with signed blank dust data cards 

which were submitted to MSHA with the samples. 

2117 
On September 1, 1992, Judge James c. Turk of the Western 

District of Virginia sentenced Shady Lane Coal Company to pay a 

fine of $30,000 of which $15,000 was suspended and to 2 years 

probation. Ted Osborne, Jr. was sentenced to pay a fine of 

$5,000, to 2 years probation, and to 2 months home confinement. 

As part of the plea agreement the Secretary agreed to move to 

dismiss pending civii penalty proceedings against Respondent for 

violations of the laws governing the dust sampling program. 

I conclude that under the circumstances dismissal of these 

proceedings effectuates the purposes of the Mine Act. 

Accordingly, these proceedings are DISMISSED. 

Distribution: 

11-~ A/1Vz:;tht'21?~ (/ .... -':!c:m7s A. Broderick 

Administrative Law Judge 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400, Arlington, VA 22203 (Certified Mail) 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Hand delivered to Lead Defense counsel committee 

/fb 

2118 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FAU.S CHURCH, VIRGINIA 22041 

DEC 301992 

SUNSET LAND & COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SUNSET LAND & COAL COMPANY, 

Respondent 

) CONTEST PROCEEDINGS 

) 

} Master Docket No. 91-1 

} Docket No. VA 91-386-R 

) through VA 91-397-R 

} 

) Citation Nos. 9861363 

) through 9861374; 4/4/91 

) 

) Mine No. 1 

) Mine ID 44-06326 

) 

) CIVIL PENALTY PROCEEDING 

) 

) Docket No. VA 91-502 

} A.C. No. 44-06326-035380 

) 

) Mine No. 1 

) 

) 

ORDER OF DISMISSAL 

Before~ Judge Broder iclc 

On December 17u 1992, the Secretary filed a motion to 

dismiss these proceedings on the grounds that on August 9, 1991, 

Respondent Sunset Land & Coal Companyu and David Stevenson, 

principal of Sunset Land & Coal Companyu entered into plea agreements~ agreeing to plead guilty to charges of conspiracy to 

defraud an agency of the United States in connection with the 

civil violations charged herein. Respondent contracted with 

Triangle Research to handle its dust sampling program. 

Triangle 9 s principal and agent admitted falsifying the samples 

submitted to MSHA and admitted that on numerous occasions they 

blew air on the filter surfaces of manufactured dust samples. 

Harry White and Ronald Ellis of Triangle have been convicted of 

defrauding the government and have been sentenced to prison. 

Respondent provided Triangle with signed blank dust data cards 

which were submitted to MSHA with the samples. 

2119 
On August 6, 1992, Judge James c. Turk of the Western 

District of Virginia sentenced Sunset Land & Coal Company to pay 

a fine of $30,000 of which $15,000 was suspended and to 2 years 

probation. David Stevenson was sentenced to pay a fine of 

$5,000, and to 2 years probation, and 2 months home confinement. 

As part of the plea agreement the Secretary agreed to move to 

dismiss pending civil penalty proceedings against Respondent for 

violations of the laws governing the dust sampling program. 

I conclude that under the circumstances dismissal of these 

proceedings effectuates the purposes of the Mine Act. 

Accordingly, these proceedings are DISMISSED. 

Distribution: 

)tU4t££ /#J:V~ ' James A. Broderick 

Administrative Law Judge 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

suite 400, Arlington, VA 22203 (Certified Mail) 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 {Certified Mail) 

Hand delivered to Lead Defense Counsel Committee 

/fb 

2120 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OEC 3O1992 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BR D COAL COMPANY, INC., 

Respondent 

) CIVIL PENALTY PROCEEDING 

) 

) Master Docket No. 91-1 

) Docket No. VA 91-482 

) A.C. No. 44-06030-035460 

) 

) Mine No. 2 

) 

ORDER OF DISMISSAL 

Before: Judge Broderick 

On December 17, 1992, the Secretary filed a motion to 

dismiss this proceeding on the grounds that on August 8, 1991, 

Respondent BR D Coal Company, Inc., and Billy Ray Dotson, 

principal of Respondent entered into plea agreements, agreeing to 

plead guilty to charges of conspiracy to defraud an agency of the 

United States in connection with the civil violations charged 

herein. Respondent contracted with Triangle Research to handle 

its dust sampling program. Triangle's principal and agent 

admitted falsifying the samples submitted to MSHA and admitted 

that on numerous occasions they blew air on the filter surfaces 

of manufactured dust samples" Harry White and Ronald Ellis of 

Triangle have been convicted of defrauding the government and 

have been sentenced to prison. Respondent provided Triangle with 

signed blank dust data cards which were submitted to MSHA with 

the samples. 

On August 7u 1992u Judge Samuel G. Wilson of the Western 

District of Virginia sentenced B RD Coal Companyu Inc. to pay a 

fine of $30 9 000 of which $15 8 000 was suspended and to 2 years 

probationo Billy Ray Dotson was sentenced to pay a fine of 

$5~000u to 2 years probation and 2 months home confinement. As 

part of the plea agreement the Secretary agreed to move to 

dismiss pending civil penalty proceedings against Respondent for 

violations of the laws governing the dust sampling program. 

I conclude that under the circumstances dismissal of this 

proceeding effectuates the purposes of the Mine Act. 

2121 
Accordingly, this proceeding is DISMISSED. 

Distribution: 

r~ ft5rvck~ tf--=~~~~ A. Broderick 

Administrative Law Judge 

Douglas White, Esq., Mark R. Malecki, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400, Arlington, VA 22203 (Certified Mail} 

Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, 237 Main 

Street, Drawer 1560, Grundy, VA 24614 (Certified Mail) 

Hand delivered to Lead Defense Counsel Committee 

/fb 

2122 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA} 

Petitioner 

v. 

AMERICAN MINE SERVICES, 

INCORPORATED, 

Respondent 

DECISION 

Docket No. WEST 91-563 

A.C. No. 05-03672-03508 X02 

Docket No. WEST 91-624 

A.C. No. 05-03672-03509 X02 

West Elk Mine 

Appearances: Susan J. Eckert, Esq., Tambra Leonard, Esq., 

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

Denver, Colorado, 

Before: 

for Petitioner; 

Michael Schultz, AMERICAN MINE SERVICES, INC., 

Aurora, Colorado, 

for Respondent. 

Judge Morris 

The Secretary of Labor, in these civil penalty proceedings 

charges American Mine Services, Inc., ("AMS") with violating 

safety r~gulations promulgated under the Federal Mine Safety and 

~~eal ch Act,, 30 UoSoCo § 801 et ~p (the 01Act 11 ) 0 

A hearing on the merits commenced in Denver, Colorado, on 

March 10, 1992; a further hearing was on May 29, 1992. 

The parties waived the filing of post-trial briefs. 

Stipulation 

At the commencement of the hearing, the parties stipulated 

as follows~ 

American Mine Services, Inc. is engaged in providing 

services as such services relate to the mining of coal and its 

mining operations affect interstate commerce. 

Amer~can Mine Services, Inc. is an operator at the West Elk 

Mine, MSHA ID number 05-03672-03509 X02. 

2123 
American Mine Services, Inc. is subject to the jurisdiction 

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

Section 801, et seg., hereafter called the Act. 

The subject citations and orders were properly served by a 

duly authorized representative of the Secretary upon an agent of 

the Respondent on the date and place stated therein and may be 

admitted into evidence for purposes of establishing their issuance and not for the truthfulness or relevancy of any statements 

asserted therein. 

The exhibits offered by the Respondent and the Secretary are 

stipulated to be authentic, but no stipulation is made as to 

their relevance or the truth of the matters asserted therein. 

The proposed penalties will not affect the Respondent's 

ability to continue business. 

The operator demonstrated good faith in abating the 

violations. 

American Mine Services, Inc. is a medium-sized contractor 

with total control hours worked for all contracts of 80,872 in 

1991. 

A certified copy of the MSHA Assessed Violations History 

accurately reflects the history of this mine for the two years 

prior to the date of the citations and orders. 

West 91-563 

This case involves imminent danger Order No. 3583894 issued 

under section 107(a) of the Act. The order was followed by Citation Noo 3583895 issued under section 104(a) of the Act. 

Order 3583894 stated as follows~ 

The following condition was obsrved, (sic) 

an employee was observed useing (sic) a 

cutting torch at eye level. The employee was 

appoximately (sic) 12" inch away and cutting 

~olten metal the molten metal was traving 

(sic) in all direction in the face area. The 

employee had no protective equipment on, no 

faceshield or goggles were being worn by the 

employee doing the work. This type of hazard 

could of been serious consequence or caused 

serious physical harm. (Separate citation 

will be issued for the violation) 

2124 
Citation No. 3583895, issued under section 104(a) of the Act 

alleges AMS violated 30 C.F.R. § 77.1710(a). 1 

The evidence: as MSHA Inspector David Head, an experienced 

electrical inspector and a certified welder, crossed the West Elk 

parking lot he saw AMS employee Jones using a cutting torch at 

eye level. Jones was welding with an oxygen acetylene torch 

without a face shield or eye protection. (Tr. 16, 28). 

The inspector didn't know if he could reach Jones in time to 

stop an accident. He reached Jones as quickly as he could. (Tr. 

2 0) • 

The molten metal from half inch thick iron was being blown 

back into Jones' face. The welding light can be harmful to the 

eyes in the absence of properly tinted lens. 

When he observed the situation, Inspector Head stopped 

Jones. In five minutes they located Jones' supervisor and AMS 

furnished a pair of welding goggles with tinted glass. (Tr. 19). 

Jones had been wearing ~-~~ir ~f regular eye glasses with 

wire frames. Inspector Head did not consider the glasses the 

proper protective equipment since there was no shielding around 

the sides. In addition, the regulation requires a face shield or 

goggles. 

The above facts justify the imminent danger order under 

section 107(a) of the Act since an imminent danger is defined as 

"the existence of any condition or practice in a coal or other 

mine which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated" 

30 U.S.C. § 802{j) / Rochester & Pittsburgh Coal Co. 11 FMSHRC 

2159 (1989) p (R&P). 

See also Wyoming Fuel Company? 14 FMSHRC 1282, 1290-92 

(August 1992). 

In R&P as well as in Utah Power & Light Co. 13 FMSHRC 1617 1 

1621 (199l)v the Commission stated the inspector must be accorded 

considerable discretion in determining whether an imminent danger 

§ 77.1710 Protective clothing; requirements. 

Each employee working in a surface coal mine or in the 

surface work areas of an unerground coal mine shall be 

required to wear protective clothing and devices as 

indicated below: 

(a) Protective clothing or equipment and face-shields 

or goggles shall be worn when welding, cutting, or 

working with molten metal or when other hazards to the 

eyes exist. 

2125 
exists because an inspector must act with dispatch· to eliminate 

conditions that create such danger. In the instant case loss of 

sight certainly involves serious physical harm justifying the 

inspector's quick action. 

AMS argues Jones merely made a bad judgment call and no 

imminent danger existed. For the above reasons and the cited 

case law, I find this argument without merit. The imminent 

danger order was properly issued. Order No. 3583894 should be 

affirmed. 

On the merits of the subsequent welding citation, AMS's 

witness G. Wayne Jones generally confirmed the inspector's 

testimony. He also indicated that the company provided goggles 

and a face shield. 

Mr. Jones has used a cutting torch for 17 years. He claimed 

he was protected from sparks by his welding technique and his 

regular eye glasses. I am not persuaded since Mr. Jones agreed 

molten metal could bounce back in his face. In addition, he 

indicated his technique controlled the sparks only about 95 

percent of the time. (Tr. 36T~ 

The ·secretary contends the violation was significant and 

substantial. In this regard the Commission has ruled that a 

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

particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in 

an injury or illness of a reasonably serious nature." Cement 

Division. National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

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

Commission explained: 

In order to establish that a violation of a 

mandatory standard significant and substantial under National Gypsum the Secretary 

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 

question will be of a reasonably serious 

natureo 

See also Austin Power Co. v. Secretary 861 F.2d 99, 103-04 (5th 

Cir. 1988), aff'gr 9 FMSHRC 2015, 2021 (December 1987) (approving 

Mathies criteria). The question of whether any specific violation is S&S must be based on the particular facts surrounding the 

violation. Texasgulf, Inc., 10 FMSHRC 498, 500-01 (April 1988); 

2126 
Youghiogheny & Ohio Coal co., 9 FMSHRC 2007, 2011-12 (December 

1987) . 

In connection with the welding citation, and for the above 

reasons the evidence of the parties supports all the S&S 

criteria. 

In assessing any civil penalties AMS should be considered as 

moderately negligent since it did not insist its employees use 

goggles. 

The likelihood of a severe eye injury or possible loss of 

sight establish a high level of gravity. 

Citation No. 3583895 should be affirmed. 

WEST 91-624 

Citation No. 3584059, issued under section 104(d) (1) of the 

Act, alleges AMC violated 30 c.F.R. 1400-3. 2 

The citation reads as fdllows: 

2 

The day shift hoistman Charles Treadwell 

under the supervision of George Willis - mine 

Foreman, failed to conduct the required daily 

safety examinations of the hoisting equipment 

located at x-cut 93 of the southmains intakes 

to insure that the hoisting equipment was 

maintained in a safe condition pryer (sic) to 

transporting 3 persons down the ventilation 

shaft. Mr. Treadwell stated that he had had 

a rather busy and hectic morning and had 

'neglected to conduct the required safety 

checks on the hoist equipment. As a result 

of thisv equipment failure 3 men Bob Halesminer v Mike Lane-engineer and Tom Andersonengineer were trapped approximately 200 feet 

below the collar deck in the ventilation 

shaft for about 2 li2 hours. 

Discussion 

§ 75.1400.3 Daily examination of hoisting equipment. 

Hoists and elevators shall be examined daily [list of 

required examinations) and such examinations shall 

include, but not be limited to, the following: 

2127 
AMC agrees that an examination of the hoisting equipment was 

not conducted prior to transporting three persons down the shaft. 

However, the operator insists and its evidence establishes that 

an inspection was conducted during the last working day and the 

day shift. As a result AMS contends the hoistman had until the 

end of the day of the inspector's visit to conduct an inspection 

and enter it into the log book. 

The issue presented is whether the "daily" inspections 

required by 30 C.F.R. § 75.1400-3 are to be made at the beginning 

of the shift or at any time during the shift. 

Congress considered this regulation and stated that hoisting 

equipment should be "examined daily." Further, Congress stated 

that "[t]his standard should keep mine hoist accidents to a minimum and impart to mine management and workers the essential elements that enter into safe installation and maintenance of hoisting equipment. Hoisting of men and materials is an essential 

operation in many mines and has become so commonplace that some 

ignore day-to-day inspections or become lax in the operating 

phases. Where shaft or slope accidents have occurred because of 

failure of the hoisting equipment, they have been due almost 

always to lack of inspections and to lack of proper maintenance 

of the equipment." See s. Rep. No. 91-411, 9lst Congress, 1st 

Session, (1975} reprinted in Senate Subcommittee on Labor Legislative History of the Federal Mine Safety and Health Act of 1977 

at 207 (Legis. Hist.). 

The views of the Secretary, who is charged with the protection of the safety of the nations' miners, are entitled to due 

deference. Missouri Rock, Inc., 11 FMSHRC 136 (1987); Secretary 

of Labor on behalf of John w. Bushnell v. Cannelton Industries, 

Inc., 867 F.2d 1432 (1989). 

Accordinglyv the daily inspections required by C.F.R. 

§ 75.1400-3 are to be made at the commencement of the shift or at 

least prior to beginning of any hoist functions. (Tr. 57, 101 1 

102) • 

The inspector concluded this was in S&S violation. The 

applicable case law as to S&S is set for the previous citation" 

Under the Mathies formulation there was a violation of 30 

CoF.R. § 75.1400-3 in that the hoist was not examined. A measure 

of danger was contributed to by the violation. There was also a 

reasonable likelihood that the hazard would result in an accident 

since an examination would have disclosed a deficiency of the 

equipment. Finally, the evidence established that there was a 

reasonable likelihood that the accident would be of a reasonably 

serious nature. The three workers trapped in the bottom deck 

work platform could have been struck by any falling debris from 

the derailed collar doors. 

2128 
The S&S allegations should be affirmed. 

UNWARRANTABLE FAILURE 

The Secretary contends this violation was due to the 

unwarrantable failure of AMS to comply with the regulation. 

The special finding of unwarrantable failure, as set forth 

in section 104(d) of the Mine Act, 30 u.s.c. § 814(d), may be 

made by authorized Secretarial representatives in issuing citations and withdrawal orders pursuant to section 104. In Emery 

Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), and 

Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007, 2010 (December 

1987), the Commission defined unwarrantable failure as "aggravated conduct constituting more than ordinary negligence by a mine 

operator in relation to a violation of the Act." Emery examined 

the meaning of unwarrantable failure and referred to it in such 

terms as "indifference," "willful intent," "serious lack of reasonable care," and "knowing violation." 9 FMSHRC at 2003. In 

Emery, the Commission also pointed out that in Eastern Associated 

Coal Co., 3 IBMA 331 (1974), ,the Interior Board of Mine Operations Appeals ("Board") had defined unwarrantable failure as 

"intentional or knowing failure to comply or reckless disregard 

for the health and safety of miners." 9 FMSHRC 2003, citing 

Eastern, 3 IBMA at 356 n.5 (emphasis added). 

To establish unwarrantable failure the Secretary relies on 

the fact that Inspector Gutierrez issued a citation for a 

violation of 30 C.F.R. § 75.1400-4 (certification by examiner) 

apparently five minutes before he issued the contested citation 

(compare P-2 and P-3). Without further evidence I do not find 

that the described unrelated circumstances constitute aggravated 

conduct as required by Emery. The failure to check the hoist 

before lowering the men was mere negligence, not aggravated 

conduct" 

allegations of unwarrantable failure should be stricken. 

In assessing any civil penalties AMS should be considered as 

moderately negligent. Even though the operator had checked the 

hoist on the previous shiftv the company was nevertheless as a 

minimum required to check the hoist before lowering the three 

miners. 

The previous S&S discussion herein indicates a high level of 

gravity on the part of AMS. 

Citation No. 3584059, as modified, should be affirmed. 

2129 
Order No. 3584060, issued under section 104(d) (1) of the 

Act, alleges AMC violated 30 C.F.R. § 75.220{a) (1); 3 

The citation reads as follows: 

3 

This contractor operator has experienced a 

hoisting accident which resulted in having 3 

persons trapped 200 ft. below the shaft 

collar of the ventilation shaft located at 

x-cut 93 of the southmains intakes for 

approximately 2 1/2 hours George Willis-mine 

foreman and Charles Treadwell admitted that 

just pryor (sic) to the hoisting accident 

that Bob Hales-miner, Mike Lane-engineer and 

Tom Anderson-engineer were lower from the 

shaft collar on the man-cage approximately 30 

'ft. down onto the work platform at which time 

the man-cage was released. These men were 

then lowered via riding on to of the workdeck 

another 170 ft. to an area approximately 20 

ft. below the collar where the work platform 

stopped. The hoist operator for some unknown 

reason decided to bring the man cage up to 

the collar area. The metal doors at the 

collar area were in a closed position and the 

cage rammed right through the doors resulting 

in derailing the two doors, the impact in 

turn caused the man-cage and crosshead frame 

to bind on the guide ropes at a right angle 

determined to be approximately 30 degrees. 

As a result of the cage and crosshead binding 

on the guide ropes ·and jammed on the doors 3 

persons on the work platform were trapped in 

the shaft approximately 2 1/2 hours 

because the same guide ropes that were binding on the man cage and cross frame are the 

same ropes that lower and raise the work 

platform. 

The approved agreement between American 

Mine Services Inc. and MSHA sections 

75.220(a) (1) and 75316 in page 11 states and 

ctly prohibits the use of the work 

§ 75.220 Roof control plan. 

(a)(l) Each mine operator shall develop and follow a 

roof control plan, approved by the District Manager, 

that is suitable to the prevailing geological conditions, and the mining system to be used at the mine. 

Additional measures shal 1 be taken to protect persons if 

unusual hazards are encountered. 

2130 
platform to transport workers/miners up or 

down the shaft. 

The roof control plan provides, in part that, 11 [u]nder 

normal operating conditions the work platform will not be moved 

with workers on board." (Tr. 137, Ex. P-5, page 11). 

DISCUSSION 

AMS admits it violated the roof control plan (Tr. 12) in 

transporting workers on the work platform. However, AMS denies 

that the violation was severe. 

The issue of severity, under the Mine 

ly discussed in assessing a civil penalty. 

troverted evidence that these workers were 

platform and in view of AMS's admission of 

that Order No. 3584060 should be affirmed. 

Act, should be properIn view of the unconlowered on the work 

liability I conclude 

In assessing civil penalties AMS should be considered negligent since the company knew the roof control plan requirement. 

It nevertheless lowered the miners in the bottom deck work 

platform instead of in the man cage. It is not an excuse that 

the miners were inspecting the shaft at the time of the accident. 

The gravity of the violation is high. In arriving at this 

conclusion, I find the three miners were trapped for 2 1/2 hours 

in the shaft. They were in a precarious position and the 

derailed collar doors could have fallen and caused severe 

injuries. 

A portion of this case deals with the cause of the accident. 

In shortv was there a defective limit switch as Mr. Gutierrez 

or was there no switch as MSHA's witness Mr. Taylor and 

AMS s witness Mr. Hancock stated. Mr. Hancock has considerable 

with shafts and hoists. I credit his testimony 

together with MSHA's witness Mr. Taylor. In short, the hoist was 

not equipped with an upper limit switch. (See also Ex. P-7). 

Howeverp the failure to have such a switch would only render the 

situation more hazardous rather than less hazardous. 

The S&S allegations, in view of the uncontroverted evidence 

should be affirmed. 

For the above reasons Order No. 3584060 should be affirmed. 

Further Civil Penalties criteria 

AMS's negligence and the gravity of the violations have been 

previously considered as to each citation. 

2131 
Additional criteria for assessing civil penalties is contained in section llO(i) of the Act. 

According to the stipulation AMS is a medium sized contractor and the penalties assessed herein are appropriate. 

The stipulation further provides that the proposed penalties 

will not ·affect the company's ability to continue business. 

The operator's prior history is favorable since only 21 

violations were assessed against the company in the two years 

ending December 17, 1990. Further, AMS had four violations 

assessed in the two years ending January 22, 1991. 

AMS is entitled to statutory good faith since it abated the 

violations. (Ex. P-1, P-8). 

Based on the statutory criteria for assessing civil penalties and for the above reasons I enter the following: 

,.ORDER 

West 91-563 

1. Order No. 3583894 is AFFIRMED. 

2. citation No. 3583895 is AFFIRMED and a penalty of $600 

is ASSESSED. 

3. Citation No. 3584059, as modified, is AFFIRMED and a 

c 1 penalty of $400 is ASSESSED. 

Li,. Order No. 3584060 is AFFIRMED and a penalty of 

600 11\SSESSED. 

Susan J. Eckertg Esq.g Office of the Solicitor, U.S. Department 

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

Denver, co 80294 (Certified Mail) 

Mr. Michael Schultz, AMERICAN MINE SERVICES, INC., 14160 East 

Evans Avenue, Aurora, co 80014-1431 (Certified Mail) 

sh 

2132 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEVA 92-798 

A.C. No. 46-01968-03980 

v. . . Blacksville No. 2 Mine 

CONSOLIDATION COAL COMPANY, 

Respondent 

: 

. . 

Appearances: 

PARTIAL DEC:tS.ION_APPROVING 

SETTLEMENT AND STAY ORDER 

Caryl Casden, Esq., U.S. Department of Labor 

Office of the Solicitor, 

Arlington, Virginia for Petitioner; 

Daniel Rogers, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Feldman 

A hearing in Docket No. WEVA 92-798, was held on 

November 17, 1992 0 in Morgantown 0 West Virginia. 1 This 

proceeding involves two 104(a) Citations. At the hearing the 

parties moved for approval of their settlement agreement with 

respect to Citation No. 3715434. The parties also jointly moved 

for a stay of the remaining citation No. 37207512 • The parties' 

joint motions were granted on the record as reflected in this 

decision. 

Citation No. 3715934 alleges a violation of the regulatory 

standard found at 30 C.F.R. Section 75.904, namely, a failure to 

adequately mark circuit breakers for identification. At the 

hearing 0 the Secretary moved to amend the proposed penalty from 

$1 0 155 to $350. The proposed penalty reduction was based on an 

1 This docket proceeding was contemporaneously tried with 

Docket Nos. WEVA 92-799, 92-800, 92-801. These cases will be 

adjudicated in a subsequent decision. 

2citation No. 3720751 was initially issued as a l04(d) (2) 

order. However, it was subsequently modified to 104(a) citation. 

2133 
error in the initial calculation. The parties represented that 

the respondent has agreed to pay the amended $350 proposed 

penalty. As noted on the record, based on the parties' 

representations at the hearing, I conclude that the proffered 

settlement is appropriate under the criteria contained in Section 

llO(i) of the Mine Act. 

Citation No. 3720751 was issued as a result of the 

respondent's alleged failure to timely abate an alleged violation 

of the respirable dust concentration standard on the longwall 

jack setter occupation (041) on the 14-M longwall. The 

respirable dust concentration in question was obtained through 

the secretary's single sample spot inspection method. The 

validity of this method of dust sampling is currently before 

Judge Weisberger in Keystone Coal Company Docket Nos. PENN 

91-1480-R, 91-1454-R, 92-54-R, 92-114 and 92-119. The parties 

have jointly moved to stay further action on this citation 

pending final disposition in the Keystone case. While the 

respondent concedes that it had an obligation to timely abate the 

condition despite its appeal of the underlying dust concentration 

violation, the parties maintain that the ultimate resolution in 

Keystone may have a bearing on the respondent's inclination to 

settle and on the appropriate penalty to be assessed. Good cause 

having been shown, the parties joint motion to stay this 

proceeding as it pertains to Citation No. 3720751 will be 

GRANTED. 

CONCLUSION 

ACCORDINGLY, the joint motion for the approval of settlement 

of Citation No. 3715934 IS GRANTED, and IT IS ORDERED that the 

respondent pay a penalty $350 within 30 days of the date of this 

decisiono IT IS FURTHER ORDERED that this docket proceeding as 

it pertains to Citation Noo 3720751 IS STAYED pending the 

disposition in Keystone Coal Companyu supra. 

Distribution~ 

Jerold Feldman 

Administrative Law Judge 

Charles Jacksonu Esq., Robert Wilson, Esq., Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Room 

516, Arlington, VA 22203 (Certified Mail) 

Daniel Rogers, Esq., Consolidation Coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

vmy 

2134 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 09 1992 

ELMER DARRELL BURGAN, 

Complainant 

. . 

: 

DISCRIMINATION PROCEEDING 

v .. 

HARLAN CUMBERLAND COAL CO. 8 

Respondent 

: 

. 

0 

.. 

. 

Docket No. KENT 92-915-D 

BARB-CD-92-31 

Harlan Mine 

ORDER OF CONTINUANCE 

Before me for considerati-on is a Joint Motion for Continuance 

of the hearing in this matter scheduled for December 22, 1992, in 

Lexington, Kentucky. The instant motion is predicated on the 

parties• intention to seek consolidation of this proceeding with 

the complainant's discrimination claim against Dixie Fuel Company, 

a case that has yet to be docketed or assigned to me. Harlan 

cumberland Coal Company and Dixie Fuel Company are apparently 

commonly owned. This matter allegedly concerns safety complaints 

made by Mr. Burgan at the Harlan cumberland coal company and 

Mr. Burgan•s subsequent transfer and ultimate discharge from his 

employment at the Dixie Fuel Company. 

In their Joint Motion, the parties have agreed to inform me 

when discovery is completed in the Dixie Fuel case. Upon 

completion of discovery and the assignment of the Dixie Fuel matter ~o meu X will issue an order addressing the complainantws request 

for consolidation and the rescheduling of these trial proceedingse 

In view of the above, the parties' Joint Motion for 

Continuance XS GRANTED Q and the hearing in this discrimination 

matter is continued without dateo 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

(703) 756-5233 

Kent Hendrickson, Esq., Rice, Huff & Hendrickson, 417 East Mound 

street, P.O. Box 980, Harlan, KY 40831 (Certified Mail) 

Phyllis L. Robinson, Esq., P.O. Box 952, Hyden, KY 41749 

(Certified Mail) 

2135 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 301992 

PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Contestant 

. . CONTEST PROCEEDING 

Docket No. KENT 93-181-R 

Order No. 3857652; 11/3/92 

Vo 

: Sebree No. 1 Mine 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent . . 

Mine ID 15-17044 

ORDER DENYING MOTION FOR EXPEDITED HEARING 

AND PREHEARING ORDER 

Petitioner included in its Notice of Contest a Request for 

Expedited Hearing on the ground that "the Sebree Mine will be 

subject to additional improperly issued closure orders under 

Section 104(d) (2) of the [Act] as a result of the wrongfully issued 

contested Order." 

The Secretary opposes the request for an expedited hearing on 

the grounds that it does not show extraordinary conditions 

warranting an expedited hearing, it would establish an 

inappropriate precedent to grant the request, it would be unfair to 

other operators to grant the requestu and it would impose an 

unreasonable administrative and budget burden on the Secretary 1 s 

limited resources for Mine Act hearings. 

Judge John J. Morris denied a similar motion for an expedited 

hearing which like the instant matter was predicated solely on the 

basis of the issuance by MSHA § 104 (d) citations/orders" 

Medicine Bow Coal Coo Vo Secretary of Labor, 12 FMSHRC 904 (Aprilu 

1990)0 Initially noting that like the instant matter the 

enforcement documents were not issued pursuant to § 107 of the Actu 

Judge Morris ruled~ 

In the instant case contestant 0 s sole basis 

for an expedited hearing is that it nis 

subject to a continuing possibility of the 

issuance of orders pursuant to Section 104(d) 

of the Act.n However, contestant's position 

is not unique. Every mine operator is subject 

to the "possibility" of the issuance of 

"104 (a)" orders. In addition, these cases 

both 104(d) orders and contestant has failed 

2136 
to allege that it is within the criteria 

required by subparagraphs (A), (B) and (C) of 

§ 105(a) (B)(2}. 

I conclude that the Secretary's opposition to the request for 

expedited hearing is well taken. 

Accordingly, the request for expedited hearing is DENIED. 

In accordance with the provisions of section l05(d) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et 

seq., the above proceeding will be called for hearing on the merits 

at a time and place to be designated in a subsequent notice. 

1. On or before January 25, 1993, the parties shall confer 

for the purpose of discussing settlement and stipulating as to 

matters not in dispute. If settlement is reached, a motion for its 

approval shall be filed by the Secretary of Labor no later than 

February 1, 1993. 

2. If settlement is not agreed upon, the parties shall send 

to each other and to me no latertha.n February 1, 1993, synopses of 

their expected legal arguments, expected proof, lists of exhibits 

that may be introduced, and matters to which they can stipulate at 

the hearing. Each party shall also state its best estimate of the 

length of time necessary to present its case at the hearing. 

~ }_ I I.~ -::r AM Vt/1-

~am Fauver 

Administrative Law Judge 

Distribution~ 

o Gardner'" EsqO(I Pittsburg & Midway Coal Mining Companyu 6400 

FiddlerQs Green Circlev Englewood, CO 80111 (Certified Mail) 

Mary Sue TaylorQ Esq.v Office of the Solicitor, U.S. Department of 

Laboru 2002 Richard Jones Roadv Suite B-201, Nashville, TN 37215 

(Certified Mail) 

f cca 

2137