JULY 1998 

COMMISSION DECISIONS 

07-02-98 UMWA on behalf of William Burgess et al. v. Secretary 

of Labor, etc. 

07-08-98 Secretary of Labor on behalf of Ronald Maxey v. 

Leeco, Inc. 

07-10-98 P & P Inc.ofKentucky 

07-14-98 Canterbury CoaJ Company 

07-27-98 Cannelton Industries, Inc. 

07-28-98 Western Aggregates, Inc. 

ADM!NISTRATIVE LAW JUDGE DECISIONS 

07-06-98 Local 1702, Dist. 31, UMW A on behalf of 141 miners v. 

Consolidation Coal Company 

07-15-98 Blue Circle, l.ncorporated 

07-15-98 Eastern Ridge Lime Company, L.P. 

07-17-98 Inland Steel Mining Company 

07-20-98 Hoover Incorporated 

07-27-98 Consolidation Coal Company 

07-30-98 Brauntex Materials, Inc. 

i 

SE 96-367-D 

KENT 97-257-D 

KENT 98-23 1 

PENN 97-113-R 

WEVA 94-381 

WEST 98-308-M 

WEV A 98-1 0-C 

CENT 97-154-M 

VA 96-21-M 

LAKE 98-4-RM 

SE 98-49-M 

WEVA 98-27 

CENT 98-1 54-RM 

Pg. 691 

Pg. 707 

Pg. 714 

Pg. 718 

Pg. 726 

Pg. 745 

Pg. 749 

Pg. 756 

Pg. 758 

Pg. 760 

Pg. 768 

Pg. 773 

Pg. 778 

JULY 1998 

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

Gary Morgan v. Arch of Illinois, Docket No. LAKE 98-17-D. (Judge Weisberger, 

June 10, 1998) 

Secretary of Labor, MSHA v. Hubb Corporation, Docket No. KENT 97-302. Juage Weisberger, 

June 15, 1998) 

BHP Copper Company, Inc. v. Secretary of Labor, MSHA, Docket No. WEST 98-189-RM. 

(Judge Manning, June 23, 1998) 

No· cases were filed in which review was denied 

ii 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 2, 1998 

UNITED MINE WORKERS OF AMERICA 

on behalf of 

WILLIAM KEITH BURGESS, 

GLENN LOGGINS, DAVID McATEER, 

B. RAY PATE and OTHERS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

MICHAEL J. LAWLESS, 

FRANK YOUNG, TOM MEREDITH, 

and JUDY McCORMICK 

Docket Nos. SE 96-367-D 

SE 97-18-D 

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

DECISION 

BY: Riley and Beatty, Commissioners 1 

In this discrimination proceeding arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S . .C. § 801 et seq. (1994) ("Mine Act"), Administrative Law Judge Jacqueline 

Bulluck determined that the Department of Labor's Mine Safety and Health Administration 

(''MSHA") and its employees are not subject to suit for alleged vi(Jlations of sections 1 03(g)(l) 

and 105(c)(l) of the Mine Act, 30 U.S.C. §§ 813(g)(l), 815(c)(l).

2 19 FMSHRC 294 (Feb. 

1 Commissioners Riley and Beatty are the only Commissioners in the majority on all 

issues presented. 

2 Section 1 03(g)(l) provides in part: 

Whenever a representative of the miners ... has reasonable 

grounds to believe that a violation of this [Act] or a 

mandatory . . . standard exists, . . . such ... representative shall 

have a right to obtain an immediate inspection by giving notice to 

the Secretary or his authorized representative of such violation or 

danger. Any such notice shall be reduced to writing, signed by the 

691 
-

1997) (ALJ). The Commission granted the petition for discretionary review filed by the United 

Mine Workers of America on behalf of William Keith Burgess, Glenn Loggins, David McAteer, 

B. Ray Pate and others ("UMWA"), challenging the judge's decision. For the reasons that 

follow, we affirm in part, reverse in part, and remand. 

I. 

Factual and Procedural Background 

This case arose when the UMW A filed discrimination complaints on behalf of miners 

against MSHA and MSHA employees in two separate actions, Docket Nos. SE 96-367-D, and 

Docket No. SE 97-18-D. The Secretary of Labor moved to dismiss both complaints. 19 

FMSHRC at 294-95. In her consideration of the Secretary's motions to dismiss, the judge 

treated as true the following allegations set forth in the complaints. Id. at 295 n.3. 

Docket No. SE 96-367-D 

On approximately May 24, 1996, David McAteer, chairman of the safety committee of 

representative of miners ... , and a copy shall be provided the 

operator ... no later than at the time of the inspection . . . . The 

name of the person giving such notice and the names of individual 

miners referred to therein shall not appear in such copy or 

notification. Upon receipt of such notification, a special inspection 

shall be made as soon as possible to determine if such violation or 

danger exists . . . . If the Secretary determines that a violation or 

danger does not exist, he shall notify the ... representative ... in 

writing .... 

30 U.S.C. § 813(g)(l). Procedures for processing complaints under section 103(g) are set forth 

in 30 C.F.R. Part 43. Such procedures provide in part for informal review of negative findings, 

such as that an inspection or the issuance of a citation is unnecessary. See 30 C.F.R. §§ 43.6-.8. 

Section IOS(c)(l) provides in pertinent part: 

No person shall ... interfere with the exercise of the statutory 

rights of any miner, [or] representative of miners ... because such 

miner, [or] representative of miners ... filed or made a complaint 

under or related to this [Act], including a complaint notifying the 

operator ... of an alleged danger or safety or health violation in a 

coal or other mine .... 

30 U.S.C. § 815(c)(l). 

692 
UMWA Local Union 2245, and committee members William Keith Burgess and Glerm Loggins 

faxed a letter to MSHA District 11 Manager Michael J. Lawless stating their concerns regarding 

MSHA's alleged failure to adequately inspect Jim Walter Resources ("JWR") #4 Mine on 

schedule and MSHA's granting of extensions for various safety violations at the mine. 19 

FMSHRC at 295; Compl. I at 2 ~ 3. On approximately May 29, McAteer and Burgess were 

called out of the mine to attend an "accident investigation team pre-inspection meeting" at the 

mine site. Compl. I at 2 ~ 4. Present at the meeting were "two MSHA supervisors, including 

Judy McCormick, seven MSHA inspectors, the mine manager, and a number of his 

subordinates." Am. Compl. at 2 ~ 4. McCormick distributed a "sanitized," typed version of the 

letter faxed to Lawless, in which all names and references to individual miners had been omitted. 

19 FMSHRC at 296. McCormick then proceeded to verbally chastise McAteer and Burgess for 

their criticisms of MSHA in such a way to make clear to Jim Walter Resources management the 

identity of the miners who had sent the letter. !d. 

On August 30, 1996, the UMWA, on behalf of Burgess, Loggins, and McAteer, filed a 

complaint against MSHA, Lawless, McCormick, and the MSHA Assistant Manager for District 

11, Frank Young, pursuant to section 105(c)(2) ofthe Mine Act.3 In the complaint the UMWA 

alleged that MSHA officials had disclosed in violation of section 1 03(g) the identity of miners 

who sent the May 24 letter and, in so doing, had also interfered with the exercise of the 

complainants' rights in violation of 105(c)(1) ofthe Mine Act. Compl. I at 1, 3, 4. 

Docket No. SE 97-18-D 

In the spring and summer of 1996, UMWA representatives, including Local Union 8982 

president B. Ray Pate, raised various safety and health concerns with MSHA District 11 

Supervisor Tom Meredith, Lawless, and Young. 19 FMSHRC at 296. On approximately August 

9, 1996, Lawless and Young met with UMW A representatives, including Pate, regarding the 

UMW A's complaints about District 11 staff and enforcement problems at mines within District 

11. ld. 

On approximately August 19, 1996, MSHA Inspector Allen Scott advised Pate that he 

had been informed by Supervisor Meredith that Pate, the Local Union 8982 Safety Committee 

(the "safety committee"), and all miners working at the U.S·. Steel Concord Preparation Plant and 

associated facilities (the "Plant'~) could no longer telephone health and safety complaints into the 

MSHA office. I d.;, Compl. II at 3 ~ 8. Rather, complaints were to be written and hand delivered. 

19 FMSHRC at 296. 

On September 19 and 25, 1996, the UMWA filed section 105(c) complaints against 

MSHA, including Meredith, Lawless, and Young. 19 FMSHRC at 296. The UMW A alleged, in 

3 Although the UMW A filed its complaint under section 1 05( c )(2), it is clear that it 

intended to file under section 1 05( c )(3). 19 FMSHRC at 295 n.1. The judge found the error to 

be immaterial, and that fmding is not challenged on review. !d. 
part, in -the complaints that, during an investigation of the Plant on March 28, 1996, Meredith 

informed mine management of the identity of the miner representative who filed a complaint, 

that Meredith asked mine management for employment with the company, and that Meredith and 

District 11 personnel had conducted negligible enforcement or investigative action. 19 

FMSHRC at 296; Compl. II, Attach. A at 1-2. In addition, the UMW A described the change of 

policy requiring complaints to be written and hand-delivered. Compl. II, Attach. A at 2. By 

letters dated September 23 and October 9, 1996, MSHA denied the UMWA's complaints. 

Compl. II, Attach. B. 

On October 17, 1996, the UMW A, on behalf of Pate, the safety committee, and all miners 

working at the Plant, filed a complaint against MSHA, Meredith, Lawless, and Young pursuant 

to section 1 05( c )(2) of the Mine Act. In the complaint the UMW A alleged that Meredith's 

change of policy amounted to retaliation for the information provided by Pate and other UMW A 

representatives on August 9, in violation of section 105(c) of the Mine Act. Compl. II at 3-4 ~ 9. 

On October 23, 1996, the Secretary filed a motion to consolidate the proceedings (SE 96-

367-D and SE 97-18-D) and to dismiss the complaints. Citing Wagner v. Pittston Coal Group, 

12 FMSHRC 1178 (June 1990), aff'd, 947 F.2d 943 (table), I991 WL 224257 (4th Cir. Nov. 5, 

I991 ), the Secretary argued that the complaints against MSHA and the named individuals fail 

under principles of sovereign immunity. S. Mot. to Consolidate and Dismiss at 3-7. 

The judge granted the Secretary's motion to consolidate and dismiss. 19 FMSHRC at 

295. As to the motion to dismiss, the judge first concluded that the Commission's decision in 

Wagner required a holding that MSHA was immune from suit under principles of sovereign 

immunity. Id at 297-98. The judge rejected the UMWA's· argument that Wagner was not 

applicable on the basis that the miners' complaints in Wagner were oral and not protected by 

section 1 03(g)(I) of the Mine Act, while the instant written complaints were subject to the 

protections of section I 03(g)(I ). Id at 297. The judge reasoned that while section I 03(g)( 1) 

prescribes p·rocedures by which the Secretary shall maintain the confidentiality of miners who 

raise safety complaints in writing, section lOS(c)(I) encompasses within its protection oral as 

well as written complaints. Id Second, the judge concluded that Wagner also compelled the 

result that the individual employees ofMSHA were immune from suit. Id at 298. The judge 

found unavailing the UMWA' s argument that MSHA employees are liable upon application of 

respondeat superior principles,. reasoning that such a cause of action is not recognized under the 

Mine Act. ld The judge found that, in any event, the conduct of the MSHA employees here is 

indistinguishable from the conduct of the MSHA employees in Wagner, and that the Fourth 

Circuit, applying principles of respondeat superior, had concluded that those employees had not 

exceeded the scope of their authority so as to be subject to liability. ld. at 299. Accordingly, the 

judge dismissed the UMWA's complaints. Id 

The Commission granted the petition for discretionary review subsequently filed by the 

UMW A and heard oral argument. 

694 
II. 

Disposition 

A. The Wagner Decisions 

In Wagner, the Commission concluded that MSHA and MSHA officials are not "persons" 

subject to the provisions of section 105(c), dismissing those portions of Wagner's complaint 

alleging that MSHA and MSHA officials had violated section 1 05( c) of the Act by adopting a 

policy, which they enforced against Wagner, of disclosing to coal companies the names of 

miners who had reported safety violations. 12 FMSHRC at 1182, 1186-87. The Commission 

reached its conclusion by noting that the United States, as the sovereign, is immune from suit 

except as it consents to be sued and that waivers of immunity must be unequivo_cally expressed. 

Id at 1184 (citing Rushton Mining Co., 11 FMSHRC 759,766 (May 1989)). The Commission 

reasoned that the Mine Act contains no such waiver of immunity from suit for MSHA and its 

employees under section I 05( c). !d. at 1184, 1185. 

The dissenting Commissioners in Wagner disagreed with the majority's conclusion that 

MSHA employees are immune from suit under the Mine Act in all circumstances. ld at 1188. 

They noted that when an action is brought against individuals employed by MSHA, a different 

analysis is required. !d. Specifically, they reasoned that there must first be an examination to 

determine whether, in fact, the suit is in reality against the United States or against the individual, 

depending upon the nature of the relief sought. !d. They also stated that an MSHA official is 

subject to suit for specific relief if the official's actions are outside the scope of his authority or 

unconstitutional. ld. at 1189. 

Wagner appealed only that portion of the Commission's decision holding that MSHA 

employees are not subject to suit. In an unpublished decision, the Fourth Circuit Court of 

Appeals first determined that "MSHA employees acting within the scope of their authority are 

agents of the sovereign, and therefore cannot be liable under section 105(c)," reasoning that 

"person" is defined without reference to governmental entities. 1991 WL 224257, at *2. The 

Court next examined whether the named MSHA employees "acted so far outside the scope of 

their statutory authority as to become 'persons' who may be individually liable for violating 

section 105(c)." Id The Court concluded that, because section 105 contains no statutory 

guarantee of confidentiality regarding the identity of miners who inform MSHA of safety 

violations, there was no basis for a conclusion that the named MSHA employee exceeded his 

statutory authority by disclosing the identity of a miner. ld. 

695 
B. Whether MSHA is Immune from Suit under the Mine Act 

The UMW A argues that MSHA should be held liable for Mine Act violations to the 

extent that it ratifies illegal conduct by its employees. UMW A Br. at 19-21. The Secretary 

responds that the plain meaning of section 1 05( c), established canons of statutory construction, 

and the Mine Act's legislative history support the judge's conclusion that Congress did not 

intend to subject MSHA to discrimination charges. S. Br. at 4-21. 

The Commission has recognized that it "is a settled principle of federal law that the 

United States, as the 'sovereign,' is immune from suit except as it consents to be sued." Rushton, 

11 FMSHRC at 765 (citing Block v. North Dakota, 461 U.S. 273, 280 (1983); United States v. 

Mitchell, 445 U.S. 535, 583 (1980)). "Waivers of sovereign immunity 'cannot be implied but 

must be unequivocally expressed,"' and "[o]nly Congress may waive sovereign immunity." !d. 

(quoting United States v. King, 395 U.S. 1, 4 (1969)) (other citations omitted). The Supreme 

Court recently reiterated that a "waiver of the Federal Government's sovereign immunity must be 

unequivocally expressed in statutory text." Lane v. Pena, 518 U.S. 187, 192 (1996). The 

Supreme Court further emphasized that a "statute's legislative history cannot supply a waiver 

that does not appear clearly in any statutory text; 'the unequivocal expression of elimination of 

sovereign immunity that we insist upon is an expression in statutory text.'" !d. (quoting United 

States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992)). Therefore, the consideration of whether a 

waiver of sovereign immunity exists as to MSHA is limited to the text of the Mine Act. 

Section 105(c)(1) provides in part that "[n]o person shall ... interfere with the exercise of 

the statutory rights of any ... representative of miners ... because 

such ... representative ... filed or made a complaint under ... this [Act]." 30 U.S.C. 

§ 815(c)(l). The term "person" is defined in section 3(f) as "any individual, partnership, 

association, corporation, firm, subsidiary of a corporation, or other organization." 30 U.S.C. 

§ 802(f). 

We reaffirm the Commission's holding in Wagner, 12 FMSHRC at 1184, that MSHA is 

not a "person" subject to the provisions of section 1 05( c). As the Commission noted in Wagner, 

"'[i]n common usage, the term person does not include the sovereign, [and] statutes employing 

the phrase are ordinarily construed to exclude it."' !d. (quoting Wilson v. Omaha Indian Tribe, 

442 U.S. 653, 667 (1974)). In addition, no governmental entity is specifically included within 

the definition of "person," although governmental entities are specifically referred to in other 

definitions in section 3. !d. For instance, section 3(a) defines "Secretary" as "the Secretary of 

Labor or his delegate," and section 3(n) defines "Administration" as "the Mine Safety and Health 

Administration in the Department of Labor." 30 U.S.C. § 802(a), (n). 

696 
Although the term "other organization" within the definition of "person" may be 

interpreted to include MSHA, another plausible interpretation would exclude MSHA, given the 

lack of specific reference. The D.C. Circuit Court of Appeals has explained that an "Act of 

Congress is not unambiguous, and thus does not waive immunity, if it will bear any 'plausible' 

alternative interpretation." Department of Army v. FLRA, 56 F.3d 273, 277 (D.C. Cir. 1995) 

(citing Nordic Village, 503 U.S. at 34); see also Hubbardv. Administrator, EPA, 982 F.2d 531, 

532-33 (D.C. Cir. 1992) (stating that Congress' intent to waive sovereign immunity is 

"unequivocally expressed" if it is "so clear and explicit as to brook no reasonable doubt"). 

Because the term "person" is capable of plausible alternative interpretations, either including or 

excluding MSHA, the Mine Act does not unequivocally express a waiver ofMSHA's immunity 

from suit for alleged violations of section 1 05( c )(1 ). 

Moreover, section 103(g)(l), upon which the UMWA also bases its co~plaint,4 does not 

contain an express waiver ofMSHA's immunity from suit. Section 103(g)(1) does not explicitly 

state the basis for the issuance of a citation for breach of the responsibilities in processing safety 

complaints, or the parties subject to liability. Any waiver ofMSHA's immunity from suit would 

have to be impermissibly implied from the subsection. Accordingly, we affirm the judge's 

holding that MSHA as an agency is immune from suit under sections 105(c) and 103(g)(l) of the 

Mine Act, and affirm the judge's dismissal of the complaints against MSHA. 

C. Whether MSHA Employees are Immune from Suit under the Mine Act 

The UMW A argues that the Commission should overrule its holding in Wagner that 

MSHA employees are immune from suit under section 105(c) of the Mine Act in all 

circumstances. UMWA Br. at 2-3. It submits that MSHA employees should be subject to 

liability when their actions exceed the scope oftheir employment. Id.; UMWA Reply Br. at 15-

17. The UMWA argues that, even if the Commission declines to modify Wagner, the present 

case is distinguishable because the complaints in Wagner were oral, unlike the written complaint 

at issue here, which would fall within the protection of section 1 03(g). UMWA Br. at 22-26. In 

addition, the UMWA contends that the officials' conduct here is more egregious because they 

were acting for personal motives, thus losing their protection under principles of respondeat 

superior. ld. at 24-26. 

The Secretary responds that the judge properly dismissed the complaints against the 

MSHA officials. S. Br. at 11. She submits that the plain meaning of section 1 05( c) and the Mine 

Act's legislative history support the judge's conclusion that Congress did not intend to subject 

MSHA officials to discrimination charges. !d. at 11-21. The Secretary argues that even ifthe 

Commission decides that MSHA employees enjoy only qll<:llified immunity, substantial evidence 

supports the judge's determination that the named MSHA officials were acting within the scope 

of their authority and were therefore immune from liability. Id. at 32-41. The Secretary, 

4 The UMW A alleges that, in addition to a violation of section 1 05( c )(1 ), the disclosure 

of identities amounted to a separate violation of section 103(g). Compl. I at 1, 3, 4. 

697 
- applying Alabania laws of respondeat superior, submits that the allegations in the complaints do 

not establish that the named officials were acting wholly for personal reasons, although they 

might have exercised poor judgment. !d. at 35-40. 

Although the judge correctly applied Commission precedent, we conclude that it is 

appropriate to overrule the Commission's Wagner decision as it applies to MSHA officials. 

Therefore, we reverse the judge's determination that MSHA employees cannot be sued 

individually under the Mffie Act. Our decision to overrule Wagner is based on the continuing 

development of case law, which recognizes an exception to sovereign immunity in some 

circumstances as it applies to federal officials. 

As the dissenting Commissioners in Wagner recognized ( 12 FMSHRC at 1189), even in 

the absence of an explicit statutory waiver of liability against federal officials, a suit against an 

individual federal official for specific relief is not barred by sovereign immunity where the 

challenged actions of the official are beyond the official's statutory authority, that is, ultra vires, 

or unconstitutional. Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, ·689-90, 

696-97 (1948); Dugan v. Rank, 372 U.S. 609,621-22 (1963). The doctrine of sovereign 

immunity does not apply in such cases because the conduct against which specific relief is 

sought is beyond the officer's power and, therefore, is not the conduct of the sovereign.5 Larson, 

337 U.S. at 690. This exception has gained wide recognition, including within Fourth Circuit 

and the circuits to which this case could be appealed.6 See, e.g., Wagner, 1991 WL 224257, at *2 

(considering whether MSHA employees "acted so far outside the scope of their statutory 

authority" as to become individually liable); Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 

1996); Florida Dep't of Bus. Regulation v. Department of Interior, 768 F.2d 1248, 1251-52 (lith 

Cir. 1985), cert. denied, 475· U.S. 1011 (1986); Clark v. Library of Congress, 750 F.2d 89, 103 

(D.C. Cir. 1984). 

In de~errnining whether an officer's actions are ultra vires and exceed the scope of his 

authority, it is appropriate to consider whether the officer's conduct was based on a lack of 

delegated power.7 Dugan, 372 U.S. at 622; Larson, 337 U.S. 690, 695. Official action is not 

invalid "if based on an incorrect decision as to law or fact, if the officer making the decision was 

5 The UMWA's argument that MSHA is liable to the extent that it ratifies the illegal 

conduct of its employees must fail. If an MSHA employee is subject to suit for a violation of the 

Mine Act, it is because he has exceeded the scope of his delegated powers and cannot be said to 

be acting on behalf of his sovereign. 

6 The Secretary acknowledges that federal employees may be divested of sovereign 

immunity and held to act outside of the scope of their employment for "egregious" conduct. S. 

Br. at 26-27 n.l2; Oral Arg. Tr. 24. 

7 The UMWA has made no allegations that the MSHA employees' conduct was 

unconstitutional. 

698 
-

empowered to do so." Larson, 337 at 695; see also Aminoil US.A., Inc. V. California State 

Water Resources Control Bd., 674 F.2d 1227, 1234 (9th Cir. 1982); 14 Charles Alan Wright, 

Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3655, at 226 (2d ed. 

1985). The Supreme Court in Larson explained that while an officer's actions may establish a 

wrong to the plaintiff, "it does not establish that the officer, in committing that wrong, is not 

exercising the powers delegated to him by the sovereign., Larson, 337 U.S. at 693. Therefore, 

scope of authority "turns on whether the [official] was empowered to do what he did; i.e., 

whether, even if he acted erroneously, it was within the scope ofhis delegated power." United 

States v. Yakima Tribal Court, 806 F.2d 853, 860 (9th Cir. 1986) (citing Pennhurst State Sch 

and Hasp. v. Halderman, 465 U.S. 89, 112 n.22 (1984)), cert. denied, 481 U.S. 1069 (1987); see 

also Painter v. Shalala, 97 F.3d 1351, 1358 (lOth Cir. 1996); New Mexico v. Regan, 745 F.2d 

1318, 1320 n.1 (lOth Cir. 1984). 

Finally, as the dissenting Commissioners in Wagner also recognized (12-FMSHRC at 

1188), actions against individual federal officers may fail as actions against the sovereign if the 

relief requested operates against the sovereign. Pennhurst, 465 U.S. at 101 n.l1; Florida, 768 

F .2d at 1251. Courts make this determination by examining the issues and the effect of the 

judgment sought. Florida, 768 F.2d at 1251. An action is against the agency if the relief sought 

requires payment of monies from the Federal Treasury, or would restrain the government from 

acting, or compel it to act. Jd.; Larson, 337 U.S. at 704; Coleman v. Espy, 986 F.2d 1184, 1189 

(8th Cir. 1993). 

In sum, we overrule the majority's holding in Wagner that MSHA employees are not 

subject to suit for Mine Act violations in any circumstances. We adopt the holding of the 

dissenting Commissioners in that case and reiterate their summary of governing principles: 

An MSHA official is subject to individual suit, and cannot raise a 

_ sovereign immunity bar, if his actions are unconstitutional, or 

conflict with and exceed the scope of his statutory or regulatory 

authority and amount to more than a mistake of la~ or fact in the 

exercise of delegated duties, and if the relief sought against the 

individual is not a claim against the United States Treasury, does 

not interfere with a government program or does not restrain the 

Government from acting or compel it to act. 

12 FMSHRC at 1189. Moreover, in considering whether the alleged violative actions amounted 

to more than a mistake of law or fact, it is appropriate to consider whether the official's conduct 

was motivated by retaliatory intent. Cf Ramon by Ramon v. Soto, 916 F.2d 1377, 1383 n.7 (9th 

Cir. 1989) (quoting Yakima, 806 F.2d at 860 ("At a certain point, 'a violation of a statute or 

regulation is so inconsistent with the agent's authority that he divests himself of sovereign 

immunity."')). 

699 
Applying these principles, we agree with the Secretary that the UMW A has sought relief 

that in part operates against MSHA. S. Br. at 4-5 n.l . However, because the UMW A brought · 

suit against MSHA in addition to the named individuals, we do not dismiss the case based upon 

the nature of the relief sought. If relief is appropriate, it shall be fashioned so as not to operate 

against MSHA. 

We also agree with both parties that there is an insufficient record to determine whether 

the named MSHA officials' actions exceeded the scope of their authority and amounted to more 

than a mistake oflaw or fact in the exercise of delegated duties. See Oral Arg. Tr. 8-9, 32-33 

(acknowledgments by counsels to both parties that evidence is insufficient to determine whether 

officials' actions were motivated by retaliatory intent). Accordingly, in Docket No. SE 96-367-

D, we vacate the judge's dismissal of the complaints against McCormick, Lawless, and Young 

and remand for the development of a record on the allegations set forth in the_ complaint, as 

amended. The judge shall examine whether the actions of those named respondents who 

attended the May 29 meeting exceeded the scope of their statutory authority and amounted to 

more than a mistake of law or fact. 8 If the judge finds that any of the named MSHA officials are 

subject to suit, s~e shall consider whether such officials violated sections 103(g)(1) and IOS(c)(l) 

and, if so, the judge shall order appropriate specific relief that does not operate against MSHA. 

In Docket No. SE 97-18-D, we vacate the judge's dismissal of the complaint against 

Meredith, Lawless, and Young and remand for the development of a record on the allegations set 

forth in the complaint regarding the change of policy. 9 If the judge finds that any of the named 

MSHA officials are subject to suit, she shall consider whether such officials violated section 

1 05( c)( 1) and, if so, the judge shall order appropriate specific relief that does not operate against 

MSHA. 

8 We caution the judge against adopting the reasoning of the Fourth Circuit in Wagner. 

The court did not consider the statutory guarantee of confidentiality set forth in section 1 03(g)(l) 

of the Mine Act. See 1991 WL 224257, at *2. 

9 The allegations in Attachment A to the complaint do not constitute separate causes of 

action against Meredith, Lawless, and Young for alleged violations of section 1 05( c). In its 

complaint, the UMW A stated that "Meredith's change in policy toward the Complainants" was 

the basis for its allegation of violation of section 1 05( c). Com pl. II at 3-4. Evidence included in 

Attachment A may be considered only as relevant to the change in policy . . 

700 
Ill. 

Conclusion 

For the foregoing reasons, \>..'e affirm the judge· s determination that MSHA is immune 

from suit and the dismissal of the complaints against MSHA. We vacate the judge's dismissal of 

the complaints against McCormick, Meredith, Lawless, and Young and remand for further 

proceedings consistent '':ith this decision. 

Robert H. Beatty, Jr., Commis ·oner 

701 
Chairman Jordan and Commissioner Verheggen concurring in part and dissenting in part: 

We concur in the decision of our colleagues, with the exception of their disposition 

regarding the complaints against Lawless and Young. We would affirm the dismissal ofthe 

complaints against Lawless and Young in Docket No. SE 96-367-D on the basis that the original 

and amended complaints fail to set forth any allegations of conduct by Lawless and Young that 

would constitute violations of sections 1 03 (g)(l) or 1 05( c )(1 ). The violative conduct complained 

of occurred during the accident investigation team meeting on May 29, 1996. Compl. I at 2-3 

~~ 4-7. While Commissioners Riley and Beatty have directed the judge to "examine whether the 

actions of those named respondents who attended the May 29 meeting exceeded the scope of their 

statutory authority and amounted to more than a mistake. of law or fact." slip op. at 10 (emphasis 

added). there are no allegations that Lawless and Young were present at that meeting. In fact, the 

UMWA filed an amended complaint to specifically delete its reference to Lawless' presence at the 

meeting, which it included in its original complaint. Compl. I at 21!4; Am. Compl. at 2 ~ 4. 

Accordingly, we believe that the action should be dismissed against Lawless and Young based 

upon the UMW A's failure to state a claim against them upon which relief can be granted. Cf 

UAfWA v. Williamson Shaft Contracting Co., 3 FMSHRC 32, 33 (Jan. 1981 ). 

We would also affirm the dismissal of the complaint against Lawless and Young in Docket 

No. SE 97 -18-D because here, too, the UMW A has failed to state a claim against them upon 

which relief can be granted. The UMW A does not make any specific allegations concerning the 

manner in which Lawless and Young violated section 1 05( c). The UMWA alleges only that 

Lawless and Young met with UMW A representatives. including Pate, regarding the UMW A's 

complaints about enforcc:ment in District 11 , and that the named officials violated section 

1 05(c)(l ). Compl. II at 3-4 ~~ 7-9. Even taken as true, such allegations do not state a claim of 

discrimination under section 105(c), nor could such conclusory allegations of violation withstand 

a motion to dismiss. 2 James Wm. Moore, Moore 's Federal Practice§ 12.34[1][b] (Donald R. 

Coquillette et al. ~ds., 3d ed. 1998). 

Theodore F. Verheggen, C 

cl/ 

702 
Commissioner Marks concurring in part and dissenting in part: 

I concur in my colleagues' opinion, which overrules the Wagner decision and permits suit 

against MSHA officials under appropriate circumstances. In addition, I join the majority in 

vacating the judge's dismissal of the complaints against the named individuals. However, I 

believe that, if the record reveals that MSHA, as an agency, ratified the despicable acts that are 

alleged to have occurred in the two complaints at issue, then MSHA should be subject to suit and 

held accountable under the Mine Act for discrimination. Accordingly, I dissent. 

Section 105(c)(l) of the Mine Act provides: 

No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against or otherw~se 

interfere with the exercise of the statutory rights of any miner, [or] 

representative of miners ... in any ... mine subject to this [Act] 

because such miner, [or] representative of miners ... has filed or 

made a complaint under or related to this [Act], including a 

complaint notifying the operator or the operator's agent, or the 

representative of the miners ... of an alleged danger or safety or 

health violation ... , or because of the exercise by such miner, [or] 

representative of miners ... on behalf of himself or others of any 

statutory right afforded by this [Act]. 

30 U.S.C. § 815(c)(l) (emphasis added). 

If the conduct that is alleged to have occurred in this case had been performed by a person 

other than an MSHA official, there would be no dispute that a cause of action would lie under 

section 105(c) of the Mine Act. The two complaints allege interference with the rights and 

abilities of miners' representatives to make safety complaints to MSHA without fear of 

retaliation. The question in this case turns on whether MSHA qualifies as a person under the 

Mine Act. The word person is defined in section 3(f) as "any individual, partnership, association, 

corporation, firm, subsidiary of a corporation, or other organization." 30 U.S.C. § 802(f). The 

majority has concluded that MSHA does not fall into the category of"other organization." I 

disagree. 

Instead, I am persuaded by the reasoning of then Chief Administrative Law Judge 

Broderick in Local 9800, UMWA v. Secretary of Labor, 2 FMSHRC 2680, 2682-84 (Sept 1980) 

(ALI), who when faced with this question determined that "MSHA is a person under section 

105(c) prohibited from discriminating against any miner." Id at 2684. Judge Broderick relied 

on the legislative history of the Mine Act, which emphasizes that "the prohibition against 

discrimination applies not only to the operator but to any other person directly or indirectly 

involved, and also made it clear that section 1 05( c) was "to be construed expansively." 2 

FMSHRC at 2683 (citing S. Rep. No. 95-181, at 36 (1977), reprinted in Senate Subcommittee on 

703 
-

Labor, Committee on Human Resources, 95th Cong., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 624 (1978) (emphasis added)). The judge pointed to the 

exception carved by the Supreme Court to express waivers of sovereign immunity when a statute 

was "intended to prevent injury and wrong." 2 FMSHRC at 2683 (citing Nardone v. United 

States, 302 U.S. 379, 384 (1937)). In addition, the judge found instructive Congress' curtailment 

of the doctrine of sovereign immunity in 5 U.S.C.§ 702, which does not apply to proceedings 

under the Mine Act but applies to other agencies and which states that: 

An action in a court of the United States seeking relief other than 

money damages and stating a claim that an agency or an officer or 

employee thereof acted or failed to act in an official capacity or 

under color of legal authority shall not be dismissed ... on the 

ground that it is against the United States .... 

Against this backdrop of the diminishing strength of sovereign immunity, Judge Broderick relied 

on the fact that the alleged acts of discrimination were uniquely within the domain of this 

Commission and. that miners would have no alternative forum to litigate infringement of safety 

rights. 2 FMSHRC at 2683-84. He accordingly permitted the UMWA's complaints to go 

forward against MSHA. ld at 2686. 

The majority, by requiring a literal waiver of sovereign immunity in the Mine Act, has 

frustrated Congressional intent to prohibit discrimination by any person or organization. As has 

been often recognized, "[s]ince the Act in question is a remedial and safety statute, with its 

primary concern being the preservation of human life, it is the type of enactment as to which a 

narrow or limited construction is to be eschewed." Freeman Coal Mining Co. v. Interior Bd of 

Mine Operations Appeals, 504 F.2d 741, 744 (7th Cir. 1974). Certainly, an agency that is 

responsible for protecting the safety of miners should be held to the same standard of 

accountability as mine operators or other miners. Indeed, if the allegations in this case prove to 

be true, they highlight the need to limit the sovereign immunity of MSHA and to hold MSHA 

liable for its violations of the Mine Act. 1 

1 My conclusion that MSHA is not immune from suit applies to both the section 

1 05( c )(1) and section 1 03(g) allegations. Section 1 05( c )(1) expressly contains a prohibition 

against any person interfering with the statutory rights, such as those contained in secti<?n 1 03(g), 

of a miner or representative of miners. In addition, the portion of section 1 03(g)(l) at issue is 

directed specifically and exclusively at the Secretary and requires that the Secretary ensure that 

"[t]he name of the person giving such notice ... shall not appear in such copy or notification." 

Because Congress expressly fashioned the requirement at issue to apply to the Secretary, I am led 

to one inescapable conclusion- that Congress intended the Secretary to be liable under the 

Mine Act and waived sovereign immunity for MSHA's violations ·of the Act. 

704 
Accordingly. I hold that a cause of action has been stated against MSHA by the UMWA 

and I would not dismiss MSHA from the suit. · 

705 
Distribution 

Yoora Kim, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Judith Rivlin, Esq. 

United Mine Workers of America 

900 l 51h Street, N.W. 

Washington, D.C. 20005 

Administrative Law Judge Jacqueline R. Bulluck 

Federal Mine Safety & Health Review Commission 

Office of Admini~trative Law Judges 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

706 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND- HEALTH 

ADMINISTRA TJON (MSHA), 

on behalf of RONALD MAXEY 

V. 

LEECO, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 8, 1998 

Docket No. KENT 97-257-D 

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

ORDER 

BY: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners 

On March 31, 1998, the Commission, upon consideration of the Petition for Discretionary 

Review ("PDR") filed by Leeco, Inc. ("Leeco"), directed review in this matter. The following 

day, Leeco filed a Motion to Withdraw Petition, stating that it had agreed to pay to the Secretary 

of Labor the penalty assessed by the judge and had entered into a settlement agreement with 

complainant Ronald Maxey. In an April23, 1998, unpublished order, the Commission directed 

the parties to submit their settlement agreement for review befor~ the Commission would treat 

th~ motion to withdraw the PDR as one to vacate the direction for review and dismiss the appeal. 

Pursuant to their Joint Motion to Approve Confidential Settlement, and to Seal Record 

("Joint Motion"), Leeco and Maxey have submitted their settlement agreement and request that, 

upon in camera review, it be approved and sealed. It is well established that oversight of 

proposed settlements in discrimination cases is committed to the Commission's sound discretion. 

Secretary of Labor on behalf of Hopkins v. ASARCO, Inc., 19 FMSHRC 1, 2 (Jan. 1997); Reid v. 

Kiah Creek Mining Co., 15 FMSHRC 390, 390 (Mar. 1993); Secretary of Labor on behalf of 

Gabossi v. Western Fuels-Utah, Inc., 11 FMSHRC 134, 135 (Feb. 1989); Secretary of Labor on 

behalf of Corbin v. Sugartree Corp., 9 FMSHRC 197, 198 (Feb. 1987). We have reviewed the 

settlement and, upon full consideration, we grant the Joint Motion, approve the settlement, and 

seal it in accordance with the parties' request. 

Despite the fact that the parties have not objected to Commission review of their 

agreement, Commissioner Beatty, writing in partial dissent, questions our authority in general to 

707 
- review settlement agreements in discrimination cases. He apparently views the authority of the 

Commission to review settlements of civil penalties under section 11 O(k) of the Act as exclusive~ 

barring review of any other type of settlement made in any Commission proceeding. Section 

105(c), howe·; er, empowers the Commission to grant such relief as it deems appropriate in 

discrimination cases. This broad grant of authority must of necessity include the authority to 

review settlement agreements arising under section 105(c), for if no such authority existed, the 

ability of the Commission and its judges to ensure that discriminatees are made whole would be 

severely cunailed,1 a result at odds with the intent ofthe Mine Act? All the more compelling a 

reason for Commission review of settlements is the chance of an agreement being made that is 

"inconsistent with the enforcement scheme of the; Act." Amax Lead Co. of Missouri, 4 FMSHRC 

975, 978 (June 1982). 

1 The settlement reviewed in ASARCO, for example, indicated that the parties had failed 

to consider whether a monetary award to the complainant represented damages or back pay, a 

distinction with significant taxation consequences that could have left the complainant with 

much less of an award than he had ever contemplated. 19 FMSHRC at 2. 

2 SeeS. Rep. No. 95-181, at 37 (1977), reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 625 (1978) ("It is the Committee's intention that . . . the Commission 

require, all relief that is necessary to make the complaining party whole and to remove the 

deleterious effects ofthe discriminatory conduct .... "). · 

708 
Accordingly, the Commission's direction for review is vacated and this proceeding is 

dismissed. 

ML~n, £~ Chairm# 

Marc Lincoln Marks, Commissioner 

mes C. Riley, Commissioner 

Theodore F. Verheggen, Co 

709 

• 
Commissioner Beatty, concurring in part, dissenting in part: 

While I concur in the result reached by the Commission majority in its order vacating the 

pending petition for discretionary review and dismissing this proceeding, I write separately to 

state my views on what I consider to be a significant issue raised by the pending case - the 

scope of the Commission's authority to review and approve settlement agreements. I have 

serious questions about the source of the Commission's authority to review and approve 

settlements that relate ~ot to the assessment of a civil penalty, but rather to negotiated back pay 

awards designed to resolve allegations of unlawful discrimination in cases arising tmder section 

105(c)(2) and (3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2), (3) 

(the "Mine Acf'). 1 

Congress has granted the Commission authority to review and approve settlements 

involving civil penalties. This statutory mandate can be found in the express language of section 

llO(k) ofthe Mine Act, which states that "[n]o [contested] proposed penalty ... shall be 

compromised, mitigated, or settled except with the approval of the Commission." 30 U.S.C. § 

820(k) (emphasis added). This authority is also referenced in Rule 30 of the Commission's 

Procedural Rules·, which states: "In determining the amount of penalty, neither the Judge nor the 

Commission shall be bound by .a penalty proposed by the Secretary or by any offer of settlement 

made by a party." 29 C.F.R. § 2700.30(b) (emphasis added). The legislative history of section 

11 O(k), however, speaks only of the Commission's authority to approve the settlement of civil 

penalties, and contains no discussion of the Commission's new-found right to pass judgment on 

the propriety of a back pay settlement. Nor does any other provision of the Mine Act authorize 

the Commission to approve back pay settlements in cases arising under section 105(c) of the 

Mine Act. 

My colleagues contend (slip op. at 2) that the Commission's authority to review 

settlement agreements in cases arising under section 1 05( c) "must of necessity" be derived from 

section 1 OS(c ), ~hich grants the Commission authority ''to take such affirmative action to abate 

[a section 1 05(c)) violation as [it] deems appropriate, including, but not limited to, the rehiring or 

reinstatement of the miner to his former position with back pay and interest." 30 U.S.C. § 

815( c )(2). In my view, however, the broad grant of authority in section 1 05( c )(2) to order 

appropriate relief for unlawful discrimination found in cases litigated before Commission cannot 

be properly relied upon to expand the scope of the Commission's authority to approve 

settlements, which are typically entered into before any determination of discriminatory conduct 

has been made, particularly in the absence of any indication by Congress that it intended to grant 

the Commission that authority. To the contrary, as noted above, the Commission's authority to 

1 While my colleagues in the majority correctly note that the parties herein have not 

objected to Commission review of their agreement, I believe this has no relevance to the question 

of whether the Commission has the authority to review and approve settlements in discrimination 

cases. Certainly, the parties' assent to review could not sanction action by the Commission that 

otherwise would be outside the scope of its statutory authority. · 

710 
approve settlements is discussed expressly only in section 11 O(k) in the context of settlement of a 

proposed penalty. 

My colleagues also assert that, if no authority to review and approve section 105(c) 

settlements existed, the ability of the Commission and its judges to ensure that discriminatees are 

made whole would be "severely curtailed," contrary to the "intent of the Mine Act." Slip op. at 

2. I believe, however, that the Secretary ofLabor, who generally represents complainants in 

discrimination cases, is in the best position to ensure that discriminatees are made whole in 

section 1 05( c) cases that settle prior to a final Commission decision. Significantly, in this case, 

the Secretary did not object to the terms of the settlement between Maxey and Leeco. In cases 

where the Secretary is not a party, the miner likely will be represented by private counsel, or, in 

rare cases, proceed in the litigation pro se. Even in the latter case, I have confidence that miners 

understand, better than anyone else, the value of their labor when it comes to negotiating a back 

pay award. 

My colleagues in the majority state that oversight of proposed settlements in 

discrimination cases is committed to the Commission's sound discretion, citing Secretary of 

Labor on behalf of Hopkins v. Asarco, Inc., 19 FMSHRC 1, 2 (Jan. 1997), and several other prior 

cases. In Asarco, as in several of the other decisions, the Commission cited Pontiki Coal Corp., 

8 FMSHRC 668, 674-75 (May 1986), for the proposition that "[o]versight of proposed 

settlements is committed to the Commission's sound discretion." 19 FMSHRC at 2. 

Significantly, however, Pontiki did not involve a settlement of a discrimination claim, but rather 

a judge's determination that the amount of a penalty agreed to by the Secretary and the operator 

was an inadequate assessment for the four violations involved in that case. 9 FMSHRC at 673, 

678. After reviewing Pontiki, and the cases cited by my colleagues, however, I have serious 

reservations about the Commission's authority to review back pay settlements. In Asarco and the 

other cases cited, the Commission, relying on Pontiki, has taken an increasingly expansive role in 

reviewing settlement agreements, which has led it to evaluate the propriety of negotiated back 

pay ·awards arid ot)ler related matters in cases arising under section 1 05( c) of the Act? This 

expansion in the SC<?pe of the Commission's authority to review settlements has evolved without 

any analysis or discussion by the Commission of the source of its legal authority to take a more 

expansive role in this area. Likewise, my colleagues offer no explanation of the source of the 

Commission's authority to review settlement agreements in discrimination cases other than to 

opine that such authority "must of necessity" be derived from section 1 05( c). Slip op. at 2. In 

my view, this unexplained expansion of an otherwise narrowly-defined statutory authority to 

approve settlements of civil penalties has led the Commission into areas not envisioned by 

Congress, resulting in an unjustified deiay in allowing parties to enjoy the benefits of the bargain 

that they negotiate, as has occurred in this case. 

2 For instance, in Asarco, the Commission directed the settling parties to clarify the issue 

of whether the operator's agreed-upon payment to the complainant was a net amount to be paid 

to the miner directly, or whether deductions were first to be taken out of the payment. 19 

FMSHRC at2. 

711 
Because of my initial concerns about the Commission's authority to review and approve 

the type of settlement involved in this case, I declined to join in the unpublished order of the 

Commission majority dated April 23, 1998, directing the parties to submit their settlement 

agreement for review by the Commission. Rather, as I stated in my joint dissent (with Chairman 

Jordan) to that order, I then would have granted the unopposed motion ofLeeco, Inc., to 

withdraw its petition for discretionary review, and dismissed the appeal, without requiring the 

parties to submit their settlement agreement to the Conunission for its review and approval. In 

retrospect, I continue to believe that this was the appropriate course to have followed in this case, 

which would have avoided the continuation of what I consider to be an unjustified expansion in 

the scope of the Commission's authority to approve settlements, as well as a delay of over 2 

months in the implementation of the settlement agreement negotiated by the parties. 

Robert H. Beatty, Jr., Commissioner 

712 
Distribution 

Marco M. Rajkovich, Jr., Esq. 

Julie 0. McClellan, Esq: 

Wyatt, Tarrant & Combs 

250 West Main Street, Suite 1700 

Lexington, KY 40507 . 

MaryBeth Bemui, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

2002 Richard Jones Rd., Suite B-201 

Nashville, TN 37215 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

713 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

P&P INC. OF KENTUCKY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 10, 1998 

Docket No. KENT 98-231 

A.C. No. 15-15845-03541 

BEFORE: .Jordan, Chainnan; Marks, Riley, Verheggen, and Beatty, Commissioners 

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (1994) r·.Mine Act"'). On June 12, 1998, the Commission received from P&P Inc. of 

Kentucky ( .. P&PJ a request to reopen three penalty assessments that had become fmal orders of 

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

administratively determined that the Secretary of Labor does not oppose the motion for relief filed 

by P&P. 

Under section 1 OS( a) of the Mine Act, an operator has 30 ·days following receipt ofthe 

Secretary of Labor· s proposed penalty assessment within which to notify the Secretary that it 

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

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

P&P asserts that its late filing of a hearing request to contest the proposed penalties for the 

violations alleged in Citations Nos. 4020604, 4007060, and 4490920 was due to 

miscommunication between the operator and its counsel. Mot. at 1. According to P&P, the 

Secretary of Labor's Mine Safety and Health Administration ("MS~A") issued 21 citations 

following a fatal accident at the Martiki Mine on September 19, 1997. ld. at 2. P&P contends 

that on October 30, 1997, it filed a notice to contest 19 of those citations, and that on 

714 
February 12, 1998, MSHA filed proposed assessments as to all but the three citations here at 

issue. !d. P&P asserts that it timely contested each of those proposed assessments. !d. P&P 

alleges that on March 27, it received MSHA's proposed assessments on the remaining three 

citations, an.: that on April10, P&P forwarded a copy of this proposed assessment to its counsel. 

!d. P&P asserts that on June 3, MSHA issued it a notice indicating that the proposed assessments 

for those three citations had become final. !d. at 3. The operator submits that it and its counsel 

each believed the other would send the notice of contest, and, as a result, the notice of contest was 

not timely sent. !d. at 4. P&P explains that due to this misunderstanding, its hearing request was 

not received by MSHA until June 11 -45 day~ after the 30-day deadline. !d. P&P asserts that it 

is entitled t0 relief under Fed. R. Civ. P. 60(b)(l) and 60(b)(6). 

We have held that, in appropriate circumstances and pursuant to Rule 60(b), we possess 

jurisdiction to reopen uncontested assessments that have become final under section 1 05(a). 

Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim Walter Resources, Inc., 15 

FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and 

that, if the defaulting party can make a showing of adequate or good cause for the failure to timely 

respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal 

Preparation Servs .. Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with Rule 

60(b )(1 ), we previously have afforded a party relief from a final order of the Commission on the 

basis of inadvertence or mistake. See Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 

1997); Stilhmter Mining Co., 19 FMSHRC 1021, 1022-23 (June 1997); General Chem. Corp., 18 

FMSHRC 704, 705 (May 1996) . .., 

The record indicates that P&P intended to contest the three citations here at issue and that, 

but for an apparent lack of coordination with its counsel, it likely would have timely submitted the 

hearing request and contested the proposed penalty assessments for these citations. In the 

circumstances presented here, P&P's late filing of a hearing request qualifies as inadvertence or 

mistake \},.'ithin the meaning ofRule 60(b)(l). See Peabody, 19 FMSHRC at 1614-15 (granting 

operator's motio~1 to reopen when failure to timely submit notice of contest resulted from lack of 

coordination betw~en mine and operator's counsel); Stillwater, 19 FMSHRC at 1022-23 (granting 

operator's motion to reopen when operator failed to submit reque·st for hearing to contest 

proposed penalty due to lack of coordination between recipient of assessment at mining facility 

and its attorneys, after indicating intent to contest related citation). 

715 
Accordingly, in the interest of justice, we grant P&P' s unopposed request for relief and 

reopen these penalty assessments that became final orders with respect" to Citation Nos. 4020604, 

4007060, and 4490920. The case shall proceed pursuant to the Mine Act and the Commission's 

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

Marc Lincoln Marks, Commissioner 

Robert H. Beatty, Jr., Commissione 

716 

• 
Distribution 

Mark N. Savit, Esq. 

Ruth L. Ramsey, Esq. 

Patton Boggs, L.L.P. 

2550 M Street, N.W. 

Washington, D.C. 20037 

DoiiDa E. SoiiDer, Esq. 

Office of the Solicitor 

U.S. Department ofLabor 

2002 Richard Jones Road, Suite B-20 

Nashville, TN 37215 

Sheila Cronan, Esq. 

Office of the Solicitor 

U.S. Department ofLabor 

4015 Wilson Boulevard, Suite 400 

Arlington, VA 22203 

717 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 14, 1998 

Docket No. PENN 97-113-R 

CANTERBURY COAL COMPANY 

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

DECISION 

BY THE COMMISSION: 

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

U.S.C. § 80 I et seq. ( 1994) ("Mine Act" or "Act"). At issue is a citation issued by the 

Department of Labor's Mine Safety and Health Administration ("MSHA") charging Canterbury 

Coal Company ("Canterbury") with violating 30 C.F.R. § 90.1 02(a)' when it transferred a Part 90 

miner,2 without his written consent, to a position on a different shift rotation in a low dust area of 

1 Section 90.1 02(a) reads as follows: 

Whenever a Part 90 miner is transferred in order to meet 

the respirable dust standard in § 90.100 ... , the operator shall 

transfer the miner to an existing position at the same coal mine 

on the same shift or shift rotation on which the miner was 

employed immediately before the transfer. The operator may 

transfer a Part 90 miner to a different coal mine, a newly-created 

position or a position on a different shift or shift rotation if the 

miner agrees in writing to the transfer. 

2 A Part 90 miner is a miner who has been classified under section 90.3 as showing 

evidence of the development of pneumoconiosis and "who has exercised the option .. . under 

718 
the mine. Administrative Law Judge Gary Melick concluded that Canterbury violated section 

90.1 02(a) and affirmed the citation. 19 FMSHRC 957 (May 1997) (ALJ). The Commission 

granted Canterbury's petition for discretionary review challenging the judge's decision. For the 

reasons that follow, we affirm the judge's decision. · 

I. 

Factual and Procedural Background 

Russell Bollinger was a 46 year-old miner who had worked underground for 

approximately 21 years. Tr. 22-23. In May 1991, he started working at Canterbury's DiAnne 

Mine, an underground coal mine in Pennsylvania . .Jt. Stip. 6; S. Br. at 2. In October 1994, he 

became an underground construction foreman at the mine. Jt. Stip. 8. As underground 

construction foreman, Bollinger worked a three-shift rotation, working on a different shift each 

week . .Jt. Stip. 9. The times and rotation order of his shifts were I I :00 p.m. to 8:00a.m., 3:00 

p.m. to 12:00 midnight, and 7:00a.m. to 4:00p.m. Jt. Stip. 10. In May 1995, his chest was 

x-rayed and his personal physician informed him that he tested positive for pneumoconiosis. Tr. 

24. 26; Gov't Ex. 1. He showed his doctor's report to the safety director at Canterbury; however, 

the company made no changes in his job duties and did not sample his job for dust exposure. Tr. 

25. In two subsequent conversations, Bollinger told Canterbury management that he was 

concerned about dust exposure from his job and asked to be transferred to a position where he 

would be exposed to less coal dust. Tr. 28. However, Canterbury did not transfer him and no 

dust samples were taken at his position. /d. 

Approximately 5 or 6 months after his first positive xray, Bollinger had a second xray 

and the results were forwarded to MSHA. Tr. 26; Jt. Ex. 2. By letter dated August 5, 1996, 

MSHA informed Bollinger that he was eligible to exercise his right under 30 C.F.R. Part 90 to 

wor.k in a low dust area with concentrations not exceeding 1.0 mg/m3 of air (the "dust standard"), 

as required by 30 C.F.R. § 90.100.3 19 FMSHRC at 958~ Gov't Ex. I. MSHA informed 

Canterbury by letter dated August 28, 1996, that Bollinger was exercising his Part 90 right to 

work in an area which complied with the dust standard. Jt. Stip. ·5. 

Bollinger requested that he remain at the position of underground ·construction foreman 

and be sampled for dust expos~re. Jt. Stip. 14. Canterbury informed MSHA of Bollinger's · 

§ 90.3 ... to work in an area of a mine where the average concentration of respirable dust ... is 

continuously maintained at or below 1.0 milligrams per cubic meter of air, and who has not 

waived these rights." 30 C.F.R. § 90.2. 

3 Section 90.1 00 states in pertinent part: 

[T]he operator shall continuously maintain the average 

concentration of respirable dust in the mine atmosphere during 

each shift to which the Part 90 miner is exposed at or below 1.0 

milligrams per cubic meter of air. 

719 
request and took five dust samples of his position as required by 30 C.F.R. § 90.207(a). Jt. Stip .. 

15. The sampling showed an average dust concentration of 1.5 mg/m3

, which exceeded the dust 

standard. Jt. Stip. 16. Based on these results, MSHA cited Canterbury for a violation of the dust 

standard. ld ·· 

Bollinger was not qualified for the only other position, general assistant, which existed at 

the mine on his three-shift rotation. Jt. Stips. 17, 20-22. Canterbury did not attempt to reduce 

the dust exposure at Bollinger's position. Jt. Stip. 19. Instead, it decided to transfer him to the 

position of mine examiner, which entailed examining and maintaining air courses in the mine. 

Jt. Stips. 24-25. Three dust samples were taken of mine examiner positions at the mine prior to 

Bollinger's transfer. Jt. Stip. 24-26. The sampling showed an average dust concentration of 0.9 

mg/m3

, which complied with the dust standard. Jt. Stip. 26. Canterbury altered the work 

schedule of the mine examiner position so it would be on the same shift rotation that Bollinger 

worked as an underground construction foreman. Jt. Stip. 24. On November 5, I 996, it 

transferred Bollinger to his new position as mine examiner and on November 6, it notified 

MSHA ofthe transfer. Jt. Stips. 27-28. Five dust samples were taken of Bollinger's new 

position and the average dust concentration was 4.0 mg/m3

, well above the dust standard. Jt. 

Stips. 29-30. 

At a meeting held between Canterbury management and MSHA officials, it was decided 

to eliminate the air course maintenance duties of Bollinger's job as mine examiner in an attempt 

to reduce his dust exposure. Tr. 50-53. After this modification, Bollinger's position was again 

sampled and the average dust concentration was 1.28 mg/m3

, which exceeded the dust standard . 

.lt. Stips. 32-33. 

On February 3, 1997, without obtaining Bollinger's written consent, Canterbury 

transferred him to the position of shuttle car operator on a different shift rotation. Jt. Stips. 34, 

37-38. Canterbury had notified MSHA by letter dated January 31, 1997, ofthe planned transfer. 

Jt. Stip. 35. Dust samples of his new position indicated an average concentration of 1.0 mg/m3

, 

which complied with the dust standard. Jt. Stips. 39-40. Canterbury advised.MSHA of the 

sample results by letter dated February 11. Jt. Stip. 41. On March 20, MSHA issued a citation to 

Canterbury charging that it violated section 90.1 0;2(a) when it changed Bollinger's shift rotation 

without his written consent. Jt. Stips. 42-43. On April 1, Canterbury changed the shift of the 

general (non-face) mechanic pos!tion at the mine to match Bollinger's original three-shift 

rotation and then transferred him to that position. Tr. 19-20; Jt. Stip. 59; Jt. Ex. 14. 

Subsequently, MSHA terminated the citation against Canterbury. Tr. 19; Jt. Stip. 58; Jt. Ex. 13. 

Canterbury challenged the citation and the case went to hearing. In his decision; the 

judge concluded that section 90.102(a) clearly does not allow an operator, in order to comply 

with the dust standard, to transfer a Part 90 miner, without his written consent, to a position on a 

different shift rotation. 19 FMSHRC at 959. Accordingly, he affirmed the citation. Jd 

720 
II. 

Disposition 

Canterbury argues that the judge erred in affirming the citation. C. Br. at 20. It contends 

that section 90.1 02(a) does not address the issue presented by this case- whether a mine 

operator can transfer a miner to a position on a different shift rotation in order to comply with the 

dust standard when there is no existing position on the same shift rotation. !d. at 5, 17-19. It 

further argues that the Secretary's interpretation of the standard is not entitled to deference 

because it is unreasonable and contrary to the intent of Congress as expressed in the underlying 

provisions of the Mine Act. Jd. at 7-9. Canterbury asserts that it could not transfer Bollinger as 

required by section 90.1 02(a) because a position on his shift rotation was not available at the 

mine. 1d. at 5. 10. It argues that, in order to comply with the dust standard, it had to transfer him 

to a different shift rotation, and, as a consequence, his transfer did not violate section 90.1 02(a). 

1d. at 5-6, 9-10, 19. Canterbury also asserts that Bollinger's transfer falls within an exception in 

MSHA 's Program Policy Manual, Vol. V, Part 90, section 90.1 02(a), at 210 (July I, 1988) (the 

"PPM"), to the shift transfer restrictions in section 90.1 02(a). 1d. at 6-7. 

The Secretary argues that the judge correctly held that Canterbury violated section 

90.1 02(a). S. Br. at 11. She contends that the standard clearly and unambiguously prohibits the 

transfer of a Part 90 miner, in order to comply with the dust standard, to a different shift rotation 

without the miner's written agreement. Jd. at 7-8. The Secretary also argues that section 

90.1 02(a) provided Canterbury with alternative ways to comply with the dust standard but that 

Canterbury failed to use these alternatives. 1d. at 17-19. She further asserts that the exception in 

the PPM to the shift transfer restrictions of section 90.1 02(a) does not apply to Bollinger. ld. at 

11-13. 

The J?rinciple question on review is whether Canterbury violated section 90.1 02(a) when 

it transferred Bollinger, without his written consent, to a position on a different shift rotation to 

comply with the dust standard. The Commission has determined that, where the language of a 

regulatory provision is clear, the terms of that provision must be ·enforced as they are written 

unless the regulator clearly intended the words to have a different meaning or unless such a 

meaning would lead to absurd results. Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 

1989); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). "In determining the 

meaning of regulations, the Commission thus utilizes 'traditional tools of ... construction,' 

including an examination of the text and the intent of the drafters." A max Coal Co., 19 

FMSHRC 470, 474 (Mar. 1997) (quoting Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 

44-45 (D.C. Cir. 1990)). 

Section 90.102(a) states that an "operator may transfer a Part 90 miner to ... a position 

on a different shift or shift rotation if the miner agrees in writing to the transfer." It is undisputed 

that, in order to meet the dust standard, Canterbury transferred Bollinger to a position on a 

different shift rotation without his written consent. Jt. Stips. 34, 38. Based on the plain meaning 

of the regulation, we conclude that Canterbury violated section 90.102(a) when it transferred 

Bollinger to a different shift rotation without his written agreement. 

721 
The language of the Mine Act and the regulatory history of the standard support this plain 

meaning approach. The main purpose of Title II of the Mine Act is to protect miners from · 

pneumoconiosis by reducing "to the greatest extent possible" their exposure to respirable dust. 

30 U.S.C. § 84I(b). To this end, section 203(b) ofthe Mine Act, 30 U.S.C. § 843(b), established 

interim mandatory standards, which gave miners with pneumoconiosis the option of reducing 

their exposure to respirable dust by allowing them to transfer to positions with lower dust 

concentrations. However, those standards did not require operators to obtain a miner's written 

consent, before transfer.ring him to a different shift rotation, in order to comply with the 

maximum allowable dust concentrations. 

In 1980, MSHA noted that few Part 90 qualified miners were exercising their rights to 

transfer because many of them were concerned about possible repercussions to their work duties, 

wages, and shift reassignments. 45 Fed. Reg. 80,760, 80,763 (I 980). Responding lo concerns 

about the effectiveness of the Part 90 program, MSHA issued final mandatory standards for 

section 203(b) by amending Part 90. ld. at 80,760. The new mandatory standards provide that 

Part 90 miners should not be exposed to average dust concentrations greater than 1.0 mg/m3

• 30 

C.F .R. § 90.100. They also require that operators obtain Part 90 miners' written consent when 

transferring them· to different shift rotations to comply with the dust standard. 30 C.F.R. 

§ 90. I 02(a). See Mullins v. Beth-Elkhorn Coal Co .. 9 FMSHRC 891, 897 (May I 987) (an 

operator can transfer a Part 90 miner to a position on a different shift rotation, which complies 

with the dust standard, provided "the miner agrees in writing."). 

Notwithstanding the foregoing, Canterbury contends that section 90.1 02(a) does not 

address the situation where a Part 90 miner must be transferred to comply with the dust standard 

but there is no existing position on the same shift rotation at the mine. C. Br. at 5. It argues that, 

in order to comply with the dust standard, it had to transfer Bollinger to a different shift rotation. 

!d. at 5, I 0. However, as the judge correctly pointed out, Canterbury did not have to violate the 

regulation in order to comply with the dust standard. 19 FMSHRC at 959. For example, it could 

have complied with the dust standard by improving the dust concentration at Bollinger's original 

position4 or it could have attempted to obtain Bollinger's written consent before transferring him 

to a different shift rotation.

5 Regardless of the alt~rnatives open to Canterbury, however, it is 

clear from section 90.1 02(a) that it was prohibited from transferring Bollinger to a different shift 

rotation without his written consent. Id. 

4 In the Federal Register preamble, the Secretary stated that, to comply with the dust 

standard, an operator could transfer a Part 90 miner according to section 90.1 02(a) or it could 

"implement control measures to lower the concentration of respirable dust in the position 

currently held by the affected miner .... " 45 Fed. Reg. at 80,761. 

5 There is no explicit record evidence indicating that the operator asked for Bollinger's 

written consent. 

722 
-

CanterburY also argues that Bollinger's transfer to a different shift rotation is covered by 

an exception in the PPM to the shift transfer restrictions of section 90.102(a). C. Br. at 5-7. The 

PPM states in pertinent part: 

The operator may transfer a Part 90 miner without 

regard to ... [the] shift limitations [of section 90.102(a)] ifthe 

respirahle dust concentration in the position of the Pari 90 

miner qomplies with the dust standard, but circumstances 

require changes in job assignments at the mine. Reductions in 

workforce or changes in operational methods at the mine may 

be the most likely situations which would affect job 

assignments. 

PPM at 2 10 (emphasis in original). Canterbury contends that Bollinger's transfer falls within this 

exception. C. Br. at 6-7. It insists that the Jack of an appropriate existing position on Bollinger's 

original shift rotation is a situation similar to a workforce reduction or change in operational 

methods. !d. However, it is plain from the language of the exception that it only applies when 

the Part 90 miner's position complies with the dust standard but the operator needs to transfer the 

miner for reasons unrelated to compliance with the dust standard. PPM at 2 1 0; see also 45 Fed. 

Reg. at 80,761, 80,766. Because Bollinger's original position as underground construction 

foreman and his subsequent position as mine examiner were in violation of the dust standard, the 

exception clearly does not cover his transfer to the position of shuttle car operator on a different 

·shift rotation. 

723 
Ill. 

Conclusion 

For the foregoing reasons, we affirm the judge's determination that Canterbury violated 

section 90.1 02(a).6 

Marc Lincoln Marks, Commissioner 

James C. Riley, Commissioner 

Robert H. Beatty, Jr., Commissioner 

6 In light of our disposition, we do not need to address Canterbury's concerns that some 

bumping may occur under Part 90, which may cause animosity between miners (C. Br. at 13), or 

the Secretary's interpretation that "existing position" means any position normally found in the 

coal mining industry (S. Br. at 9-13). 

724 

• 
Distribution 

Joseph A. Yuhas, Esq. 

1809 Chestnut A venue 

P.O. Box25 

Barnesboro, PA 15714 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

725 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

CANNEL TON INDUSTRIES, INC., 

CHARLES PATTERSON, and 

GEORGE RICHARDSON 

July 27, 1998 

Docket Nos. WEV A 94-38 I 

WEVA 95-100 

WEVA 95-101 

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

DECISION 

BY: Riley, Verheggen, and Beatty, Commissioners 

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

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

issued to Cannelton Industries, Inc. ("Cannelton") alleging an unwarrantable and significant and 

substantial ("S&S") violation of30 C.F.R. § 75.4001 for failure to clean up an accumulation of 

coal under a conveyor belt, and related allegations that Charles Patterson and George Richardson, 

shift foremen for Carmelton, were personally liable under section IIO(c) of the Mine Act, 30 

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

Hodgdon concluded tliat Carmelton violated section 75.400 and that the violation was S&S and 

the result of unwarrantable failure. 18 FMSHRC 651, 654-59 (Apr. 1996) (ALJ). He also 

concluded that Patterson and Richardson knowingly authorized the violation by not taking steps 

to have the accumulation cleaned up. ld. at 659-61. For the reasons that follow, we affirm the 

judge's finding of violation, vacate·his unwarrantable failure and section 11 O(c) findings, and 

remand for further proceedings. 

1 Section 75.400 states: 

Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall 

be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein. 

726 
I. 

Factual and Procedural Background 

On March 1, 1994, Michael Hess, an inspector with the Department of Labor's Mine 

Safety and Health Administration ("MSHA"), conducted a quarterly inspection of Cannelton's 

Stockton Mine (Portal Nos. 1 and 130), an underground coal mine in Kanawha County, West 

Virginia. 18 FMSHRC .at 652; Gov't Ex. 1. At that time, Cannelton was constructing a new · 

section to reroute its No. 3 conveyor belt, and coal was being mined at the face. loaded into 

shuttle cars, and dumped into a temporary feeder on the conveyor belt. 18 ·fMSHRC at 652; Tr. 

250-52,259, 325-27. While inspecting the conveyor belt, Hess found an accumulation of dry, 

loose coal and coal dust that measured approximately 10 feet square and 4 feet deep, which was 

in contact with the belt and roller. 18 FMSHRC at 652-53; Tr. 41-44, 49-50; Gov't Exs. r & 5 at 

3. The accumulation was located under the V -scraper, a device that removes coal from the 

bottom, or return, belt. 18 FMSHRC at 652-53 & n.l ; Tr. 60, 181 -82, 256-57, 325, 384. Upon 

reviewing the preshift-onshift mine examination reports, Inspector Hess found that, under the 

section entitled "Violations and other Hazardous Conditions Observed and Reported," the No. 3 

belt V-scraper had been reported as "dirty" or "needs clean[ing]" on every shift during the 

previous 2 weeks with no indication that any corrective action had been taken. 18 FMSHRC at 

653; Tr. 45-46, 50, 53, 66; Gov't Exs. 1, 9 & 15. As shift foremen, both Patterson and 

Richardson had reviewed and countersigned the preshift-onshift reports. 18 FMSHRC at 658, 

660; Gov't Exs. 9 & 15. 

Based on the foregoing, Inspector Hess issued Cannelton Citation No. 4195028} pursuant 

to section 104(d)(l) of the Mine Act, 30 U.S.C. § 814(d)(l), alleging an unwarrantable and S&S 

violation of section 75.400 for failure to clean up the accumulation. 18 FMSHRC at 653. 

Subsequently, the Secretary of Labor proposed a civil penalty assessment of $3,600 against 

Can.nelton. Ic!- at 661; Gov 't Ex. 6. In addition, following a special investigation, the Secretary 

proposed civil penalty assessments of$2,000 each against Patterson and Richardson, pursuant to 

section llO(c) of the Mine Act, alleging that, by countersigning ~he preshift-onshift reports and 

2 Citation No. 4195028 .states: 

Gov't Ex. 1. 

. . 

Management showed. a high degree of negligence by 

allowing loose dry coal to accumulate under the No. 3 belt 

conveyor to a point where the loose coal was in contact with the 

belt. The coal accumulation measured approximately 1 0 feet in 

width, 1 0 feet in length and 4 feet in height. This condition was 

reported in the pre-shift mine examination report since 2/15/94 on 

each shift with no corrective actions taken. A fire hazard is present 

with a moving conveyor belt running in loose dry coal. 

727 
failing to take corrective action, they knowingly authorized the violation. 18 FMSHRC at 653, 

659-61; Gov't Exs. 11 & 12. Cannelton, Patterson, and Richardson challenged the proposed 

assessments. 

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

75.400, that the violation was S&S, and that it resulted from Cannelton's unwarrantable failure to 

comply with the standard. 18 FMSHRC at 654-59. He also concluded that Patterson and 

Richardson knowingly authorized the violation by not taking steps to have the accumulation 

cleaned up. !d. at 659-61. In analyzing the issue of violation, the judge found that "there is no 

dispute that an accumulation of coal, as described by Inspector Hess, existed in the area of the Vscrapper [sic] on the No. 3 belt." !d. at 654. The judge further found that the accumulation had 

grown over a 2-week period of time. !d. at 654-55. He. based this finding on the testimony of 

Dwight Siemiaczko, Lee Tucker, and Sheldon Craft, the beli examiners who had noted that the 

No. 3 belt V -scraper was dirty in the preshift-onshift reports throughout the 2-week period. !d. 

The judge discredited the testimony of Patterson, Richardson, and Mickey Elkins, the shift 

foremen, that the accumulation had happened a short time before the inspector arrived .. Id. at 

655-56. In crediting the testimony of the belt examiners over that of the shift foremen, the judge 

stated: 

The three foremen theorized that the accumulation discovered by 

Hess was the result of a shuttle car hitting the spill board at the belt 

feeder which in turn knocked the belt out of alignment and caused 

most of the coal to fall directly onto the bottom belt where it 

remained until it was removed by the V-scrapper [sic]. They 

believed that this must have happened a short time before the 

inspector arrived. 

I find that the accumulation developed over a two week 

period as described by Siemiaczko, Tucker and Craft. There is no 

ev~dence that any of them had any reason not to tell the truth. Nor 

was there any indication at the hearing that they were not credible. 

On the other hand, Richardson and Patterson not only have 

the responsibility for defending the company, but face personal 

liability as well: Their self-serving statements are not persuasive 

when compared with the other evidence in the case. Furthermore, 

there is no evidence to corroborate their speculation. 

ld. at 655. With regard to the issues of unwarrantable failure and section IIO(c) liability, the 

judge found that, because Patterson and Richardson had countersigned the preshift-onshift 

reports, Cannelton had been placed on notice that greater efforts were necessary for compliance 

and Patterson and Richardson had known about the accumulation. Id at 658-61. He also found 

that Cannelton, Patterson, and Richardson did not make any effort. to clean up the accumulation. 

728 
/d. at 658-61. The judge assessed civil penalties of$3,600 for Cannelton and $500 each for 

Patterson and Richardson. !d. at 661-62. The Commission granted the petition for discretionary 

review ("PDR") subsequently filed by Cannelton, Patterson, and Richardson challenging the 

judge's decision. 

II. 

Disposition 

Cannelton, Patterson, and Richardson argue that the judge's determinations are contrary 

to law and not supported by substantial evidence. PDR at 1; CP&R Br. at I. The contestants 

assert that the judge erred in crediting the belt examiners based solely on their "employment 

status." PDR at 5-7; CP&R Br. at 5-9; CP&R Reply Br. at 1-6. They also assert that the judge 

failed to address the testimony of Elkins, a former foreman who testified that, 3Y2 hours prior to 

the inspection, the accumulation was smaller than when the inspector cited it. PDR at 6, 8; 

CP&R Br. at 7, 10-11 (citing Tr. 321-24 ). In addition, the contestants assert that the judge erred 

in finding that no evidence supports the foremen's "speculation" as to the cause of the 

accumulation. PDR at 6-7; CP&R Br. at 7-8; CP&R Reply Br. at 5-6 n.3. They further contend 

that the judge erred in finding that the notations in the preshift-onshift reports were sufficient to 

provide notice of the accumulation and that the judge confused the testimony of Elkins and 

Patterson regarding cleanup efforts. PDR at 8-9; CP&R Br. at 8-9; CP&R Reply Br. at 6-15? 

The Secretary responds that substantial evidence supports the judge's determinations. S. 

Br. at 5-19. She asserts that the judge did not credit the testimony of the belt examiners based 

only on their "employment status," but that his determination is buttressed by the foremen's 

personal interests in the outcome of the case. /d. at 5-12. The Secretary also maintains that the 

judge considered Elkins' testimony but gave greater credence to the testimony of the belt 

examiners that the accumulation had developed during the 2 weeks prior to the inspection. ld. at 

11-12 n.4. Similarly, she asserts that the judge considered evidence supporting the foremen's 

"speculation" as to the cause of the accumulation but gave it littl~ credence because it was 

3 Section 113(d)(2}(A)(iii) of the Mine Act, 30 U.S.C. § 823(d)(2)(A)(iii), and 

Commission Procedural Rule 7_0(f), 29 C.F.R. § 2700.76(f), provide that Commission review is 

limited to the questions raised in a granted petition for discretionary review. In their petition for 

discretionary review, Cannelton, Patterson, and Richardson focus on the judge's factual findings 

on which he based his ultimate conclusions regarding the issues of violation, unwarrantable 

failure, and section 11 O(c) liability, without expressly challenging those conclusions. See PDR at 

4-9. The contestants merely request that the Commission reverse the judge's "decision." /d. at 

6, 9. We construe the contestants' petition to request reversal of the judge's conclusions 

regarding the issues of violation, unwarrantable failure, and section llO(c) liability. However, 

we admonish petitioners and counsel to adhere to the requirements of the Mine Act and the 

Commission's procedural rules. Because the contestants do not challenge the judge's findings 

related to his S&S conclusion, that issue is not before the Commission. See id. at 4-9. 

729 
uncorroborated. id. The Secretary further contends that the notations in the preshift-onshift 

reports, along with the foremen's observance of some amount of accumulation prior to the 

inspection, provided the contestants sufficient notice of the violative condition and that their 

failure to ensure that it was cleaned up amounted to aggravated conduct. ld. at 14-18. 

A. Violation 

The Commission has held that section 75.400 "is violated when an accumulation of 

combustible materials exists." Old Ben Coal Co., 1 FMSHRC 1954, 1 956 (Dec. 1979). 

Although the Commission has recognized that "some spillage of combustible materials may be 

inevitable in mining operations" (id. at 1958), we have held that a violative accumulation exists 

"where the quantity of combustible materials is such that, in the judgment of the authorized 

representative of the Secretary, it likely could cause or propagate a fire or explosion if an ignition 

source were present." Old Ben Coal Co., 2 FMSHRC 2806,2808 (Oct. 1980) (footnotes 

omitted). 

Here, the contestants do not dispute that a sizable accumulation was present when the 

citation was issued. The accumulation measured approximately 10 feet in length, l 0 feet in 

width, and 4 feet in depth. Tr. 41. Moreover, Inspector Hess testified that this amount of loose 

coal and coal dust would likely cause a fire because the belt and roller running in contact with the 

coal was a potential source of ignition. Tr. 43, 49-52. The fact that the coal was damp beneath 

the surface did not render it incombustible because, as the judge noted, it could dry out and 

ignite. 18 FMSHRC at 657 (citing Utah Pmver & Light Co., Mining Div., 12 FMSHRC 965,969 

(May 1990); Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120-21 (Aug. 1985)). In light 

of the quantity of the accumulation at the time the citation was issued, we conclude that 

substantial evidence4 supports the judge's finding that Cannelton violated section 75.400. 

Accordingly, we affirm the judge's conclusion. 

B. Unwarrantable Failure 

The unwarrantable failure terminology is taken from section 104(d) of the Mine Act, 30 

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

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

that unwarrantable failure is agg~avated conduct constituting more than ordinary negligence. !d. 

at 200 l. Unwarrantable failure is characterized by such conduct as "reckless disregard," 

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

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

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

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

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

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

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

730 
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 

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

failure test). The Commission "has recognized that a number of factors are relevant in 

determining whether a violation is the result of an operator's unwarrantable failure, such as the 

extensiveness of the violation, the length of time that the violative condition has existed, the 

operator's efforts to eliminate the violative condition, and whether an operator has been placed 

on notice that greater efforts are necessary for compliance." Mullins & Sons Coal Co., 16 

FMSHRC 192, 195 (Feb. 1994)(citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 

1992)). 

Substantial evidence supports the judge's finding that the accumulation was extensive. 

See I 8 FMSHRC at 653-54. Inspector Hess testified the accumulation measured approximately 

10 feet square and 4 feet deep. Tr. 41. Substantial evidence also supports the judge's finding 

that Cannelton, through its foremen, had been placed on notice by the preshift-onshift reports that 

greater efforts were necessary for compliance with the regulation. See 18 FMSHRC at 658-59. 

Such reports are relevant in demonstrating that an operator had notice that greater efforts were 

necessary to assure compliance with section 75.400. See Peabody, 14 FMSHRC at 1262. On 

virtually every shift during the 2 weeks prior to the inspection, the No. 3 belt V-scraper had been 

reported in the preshift-onshift reports as "dirty" or "needs clean[ing]" under the section entitled 

"Violations and other Hazardous Conditions Observed and Reported." Gov't Exs. 9 & 15. 

Patterson, Richardson; and Elkins reviewed and countersigned the preshift-onshift reports during 

this period and they acknowledged that the notations indicated that an accumulation existed. ld.; 

Tr. 315-16, 333, 335-36, 366, 379, 395, 402. 425-26. Thus, although the belt examiners did not 

notify the foremen orally of the accumulation, we conclude that Cannelton received notice that 

greater efforts were necessary to keep the No. 3 belt V -scraper clean. 

With regard to the length of time the violative condition existed, however, we believe that 

the judge failed to address relevant testimony in finding, based on his credibility determination, 

that the accuinulation had grown for 2 weeks prior to the inspection. See 18 FMSHRC at 653-

56, 658. A judge'$ credibility determinations are entitled to great weight and may not be 

overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); 

Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized 

that, because the judge has an opportunity to hear the testimony and view the witnesses, he is 

ordinarily in the best position t~ make a credibility determination. In re: Contests of Respirable 

Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) ("Dust Cases") (quoting 

Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)). Nonetheless, the Commission will not 

affirm such determinations if there is no evidence or dubious evidence to support them. 

Consolidation Coal Co., 11 FMSHRC 966,974 (June 1989). 

Initially, we find unavailing the contestants' argument that the judge's consideration of 

the foremen's personal interests was inappropriate in making his credibility determination. A 

judge may evaluate numerous factors in determining witness credibility, including the motivation 

of and relationship between witnesses. Huston v. Secretary of Health and Human Servs., 838 

731 
-

F.2d 1125, 1132 (lOth Cir. 1988); NLRB v. Pyne Molding Corp., 226 F.2d 818, 819 (2d Cir. 

1955); Defosse v. Secretary of Health and Human Servs., 670 F. Supp. 1078, 1080-81 (D. Mass. 

1987). However, the judge may not r~ject testimony strictly on the basis of a relationship 

between a witness and a party to the proceeding. Breeden v. Weinberger, 493 F.2d 1002, 1010 

(4th Cir. 1974). In this case, we conclude that the judge did not reject the foremen's testimony 

solely on the basis of their employment relationship with Cannelton. Although the judge 

recognized that "Richardson and Patterson not only have the responsibility for defending the 

company, but face pers~nalliability as well," he found their testimony "not persuasive when 

compared with the other evidence in the case." 18 FMSHRC at 655. Therefore, we conclude 

that the judge's consideration ofthe foremen's personal interests is not a basis on which to 

overturn his credibility determination. 

Nevertheless, we agree with the contestants that the judge failed to address Elkins' 

testimony that, 3 ~ hours prior to the inspection, the accumulation was smaller than when the 

inspector cited it. See id. In considering the foremen's theory that the accumulation had 

developed a short time before the inspector arrived, the judge recognized that Elkins '·'had walked 

the belt about [3 ~] hours before the citation was issued and although he observed a fairly large 

accumulation, it was not the size of the one found by Hess and it was not touching the belt or 

rollers." !d. However, the judge rejected the foremen's theory, in part, due to their self-interest, 

a basis not applicable to Elkins, who had since left the company and, therefore, was not 

responsible for defending it, and who was not facing personal liability. See id; Tr. 317-18. The 

judge specifically discredited the testimony of Patterson and Richardson without supplying any 

reasons for discounting Elkins' testimony. 

The substantial evidence standard of review requires that a fact finder weigh all probative 

record evidence and that a reviewing body examine the fact finder's rationale in arriving at his 

decision. Amax Coal Co., 18 FMSHRC 1355, 1358 n.7 (Aug. 1996). In order for the 

Commission to effectively perform its review responsibility, a judge must analyze and weigh the 

relevant testimony, make appropriate findings, and explain the reasons for his decision. 

Secretary of Labor. on behalf of Hyles v. All Am. Asphalt, 18 FMSHRC 2096, 2101 (Dec. 1996). 

Commission Procedural Rule 69(a) also requires that a judge's decision "include all findings of 

fact and conclusions of law, and the reasons or bases for them, on all the material issues of fact, 

law or discretion presented by the record." 29 C.F.R. § 2700.69(a). In light of the judge's failure 

to address Elkins' testimony, we cannot effectively revi·ew his finding, based on his credibility 

determination, that the accumulation had grown for 2 weeks prior to the inspection. Thus, we 

vacate the judge's finding and remand the matter for further consideration. We direct the judge 

to consider Elkins' testimony and make a credibility determination with respect to Elkins. 

We also agree with the contestants that the judge erred in finding that there is no evidence 

to co~oborate the foremen's "speculation" as to the cause of the accumulation. In discrediting 

the foremen's testimony, the judge stated "[n]o one testified ... that the belt was out of 

alignment, that coal was observed traveling from the feeder to the V -[scraper] on the bottom belt 

or that the belt was re-aligned after the accumulation was discovered." See 18 FMSHRC at 655-

732 
56. However, the record indicates that both Richardson and Inspector Hess observed coal 

coming off the belt at the time they discovered the accumulation. Tr. 46-47, 62, 273-74. Hess 

acknowledged that "the only way that [he] could conceive of the coal getting on the bottom belt" 

was from the No. 3 belt feeder. Tr. 63-64. The belt examiners also corroborated this view. 

Siemiaczko testified that he assumed that the accumulation was caused by either a "feeder 

misaligned on the belt" or a splice in the belt. Tr. 136, 149. Tucker stated that he thought that 

the accumulation was caused by "spillage from the feeders ... onto the bottom belt." Tr. 194. 

Craft also stated that he thought that the accumulation was caused by "the feeder dump[ing] on 

the belt. Tr. 226. Moreover, Richardson testified that, after discovering the accumulation, he 

telephoned the section boss, Steve Dean, and told him to shut down and reset the feeder. Tr. 

274-75, 3 I 2. For the purpose of our unwarrantable failure analysis, a key question is the duration 

ofthe violative condition, not its specific cause. However, evidence of the cause of the 

accumulation may corroborate Elkins' testimony that the accumulation was larger 3Y2 hours after 

he had observed it. We thus vacate the judge's finding that no evidence supports the foremen's 

"speculation" as to the cause of the accumulation, and remand the matter for further 

consideration insofar as the cause of the accumulation may be relevant to the length of time that 

it had existed. 

Finally, with regard to Cannelton's cleanup efforts, the judge failed to mention relevant 

testimony in finding that Cannelton did not make efforts to eliminate the violative condition. See 

18 FMSHRC at 658-59. Richardson testified that, on every shift, there were two men working 

on the belts who would shovel, rock dust, and clean up around the drives and V -scraper. Tr. 264-

65, 270. He explained that, because the V -scraper was a problem area and it was reported as 

dirty in the preshift-onshift reports, his men automatically knew to clean it. Tr. 266, 270, 314. 

Richardson also stated that, upon learning that the V -scraper was dirty, he directed his men to 

stop there and, if excessive coal was present, to clean it up. Tr. 282, 298-99. Richardson 

remembered having to realign the feeder two or three times during the 2 weeks prior to the 

inspection in order to correct spillage problems, and he testified that the coal was cleaned up each 

time. Tr. 289~90 . . Elkins also testified that Cannelton employed men whose job was to keep the 

belt clean. Tr. 352._ He testified that, when an accumulation at the V-scraper reached the height 

of the belt, he would send men with shovels to remove some of it and that, during the 2 weeks 

prior to the inspection, he directed his men to do so. Tr. 338-39, 344-45, 363. Patterson also 

testified that he had two men assigned to cleaning belts on every shift. Tr. 376-77, 387, 396. 

Patterson testified that, during th~ 2 weeks prior to the inspection, he observed three 

accumulations at the V -scraper, one of which he specifically assigned his belt cleaners to clean 

up and the others which he shoveled himself. Tr. 386-92, 396, 407-08. Patterson explained that 

his men attempted to get a scoop to the area to clean up the accumulation but that the area was 

extremely wet and muddy so they were unable to do so. Tr. 408-10. Then, he directed the men 

to shovel the accumulation and he saw them shoveling before he left. Tr. 410,412. Patterson 

testified that the two men shoveled the area for approximately 2Y2 hours and then men working 

on the next shift, for whom Elkins was the foreman, finished cleaning and rock dusted the area. 

Tr. 412,420-21, 423. 

733 
We conclude that the judge failed to consider the testimony of Patterson, Richardson, and 

Elkins regarding their efforts to clean up the accumulation.5 Such remedial efforts are relevant to 

the unwarrantable failure evaluation and should have been considered by the judge. See, e.g., 

Peabody, 14 FMSHRC at 1263-64~ Utah Power & Light Co., 11 FMSHRC 1926, 1933-34 (Oct. 

I 989). We therefore vacate the judge's finding that Cannelton did not make efforts to eliminate 

the violative condition, and remand the matter for further consideration of the evidence adduced 

during the hearing on this issue. If, on remand, the judge determines that Cannelton made efforts 

to clean up the accumulation, he shall also evaluate such efforts insofar as they may be relevant 

to the length of time that the accumulation had existed. 

Our decision to vacate the judge's unwarrantable failure finding should not be construed 

as advocating or encouraging operators to allow accumulations of coal to exist on a belt line. We 

fu lly recognize the seriousness ofthis pa11icular violation and do not wish to downplay its 

significance. At issue here, however, is not whether a violation of section 75.400 occurred, or if 

the violation was S&S. Instead, the issue on review is a more narrow one that requires us to 

focus on whether the operator's conduct rises to the level of unwarrantable failure. On·this point, 

we are guided by established precedent that, to properly make this determination, a judge must 

fully evaluate the operator's conduct in accordance with certain factors identified by the 

Commission to determine whether a violation is unwarrantable. The factor that is particularly 

germane on this appeal is the operator's efforts to eliminate the violative condition. 

As discussed previously, the judge found that Richardson and Patterson did not make any 

specific attempts to have the accumulation cleaned up. I 8 FMSHRC at 658. Based on our 

review of the record, this finding is contradicted by certain evidence adduced during the hearing. 

The judge appears to have failed to consider relevant testimony of Cannelton's witnesses 

concerning their efforts to clean up the accumulation. Accordingly, we believe our responsibility 

is to vacate the judge's decision, and remand the case with an instruction that the judge consider 

and evaluate .this testimony and determine whether it influences his prior finding that this 

violation was unwarrantable. 

Unlike our dissenting colleagues, we will not ourselves attempt to determine here 

whether the evidence of cleanup efforts by Cannelton was sufficient to warrant elimination of the 

unwarrantable failure designation, or whether aggravated or intentional misconduct occurred. In 

our view, the determination is 111ore appropriately made'by the judge, who, as the trier of fact, 

had a previous opportunity to observe the witnesses directly, and is therefore in the best position 

to evaluate this testimony and determine whether, if credited, it requires a reversal of his previous 

finding that this violation was unwarrantable. We believe this approach is preferable to that 

taken by the dissenters, who elect to invade the province of the judge and evaluate the record 

testimony on their own and conclude that the judge's failure to consider it was mere "harmless 

5 We note that, as the contestants point out (CP&R Reply Br. at 6-9), the judge appears to 

have confused the testimony of Elkins and Patterson regarding the. unsuccessful attempt to clear~ 

up the accumulation. 18 FMSHRC at 658-59. 

734 
error," based on their opinion that, even if credited, the evidence did not reflect a cleanup effort 

"reasonably designed to eliminate the accumulation." Slip op. at 15 n.4.6 We believe that our 

approach ensures that due process of the law is afforded to all parties in making this crucial 

determination. 

In sum, we vacate the judge's determination that the violation was the result of 

Cannelton's unwarrantable failure, and remand for findings of fact related to the length of time 

that the accumulation h~d existed and Cannelton's cleanup efforts.' The judge shall also make 

new findings for any of the six penalty criteria set forth in section II O(i) of the Mine Act, 

6 In concluding that any efforts taken by Cannelton to clean up the accumulation were 

unreasonable and ineffectual, and therefore cannot provide a basis for a finding that the violation 

was not unwarrantable, our colleagues cite to their separate opinion in Peabody Coal Co., 18 

FMSHRC 494, 501 (Apr. 1994) (Chairman Jordan and Commissioner Marks, concurring in part 

and_dissenting in part). In their opinion in Peabody, however, while Chairman Jordan and 

Commissioner Marks agreed with the Commission majority that the judge failed to appreciate the 

significance of water as a dust control measure in finding that the operator's respirable dust 

violation was unwarrantable, they indicated that they would have instead vacated the judge's 

determination and remanded for further analysis, based upon their unwillingness to conclude that 

the record could not support an unwarrantable failure finding. ld. In that case, our dissenting 

colleagues criticized the Commi~sion majority for taking the type of approach they propose to 

follow here - declining to allow the judge the opportunity to determine, in the first instance, 

whether his analytical error warrants a reversal of his unwarrantability determination, based upon 

their conclusion that the record can only support one conclusion. 

7 In vacating the judge's determination of unwarrantable failure we are not attempting to 

downplay the seriousness of a violation alleging an accumulation of coal or coal dust in an 

underground mining environment. Instead, our focus here is to determine if the operator's 

conduct rises to the level of unwarrantable failure. To properly make this determination, the 

judge must evaluate this conduct in accordance with the factors utilized by the Commission to 

determine whether a violation is unwarrantable. 

735 
30 U.S.C. § 820(i),8 that are affected by his findings of fact and_ reassess the civil penalty against 

Cannelton. 

C. Section 11 O(c) Liability 

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

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

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

30 U.S.C. § 820(c). The proper legal inquiry for determining liability under section 11 O(c) is 

whether the corporate agent knew or had reason to know of a violative condition. Kenny 

Richardson, 3 FMSHRC 8, 16 (Jan. 1981 ), a.ff'd on other grounds. 689 F.2d 632 (6th Cir. 1982), 

cert. denied, 461 U.S. 928 ( 1983). Accord Freeman United Coal Mining Co. v. FMSHRC, I 08 

F.3d 358. 362-64 (D.C. Cir. 1997). To establish section 11 O(c) liability, the Secretary must 

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

law. Warren Steen Constr., Inc., 14 FMSHRC 11 25, 1131 (July 1992) (citing United States v. 

/nt '/Minerals & Chem. Corp., 402 U.S. 558,563 (1971)). An individual acts knowingly where 

he is " in a position to protect employee safety and health (and] fails to act on the basis of 

information that gives him knowledge or reason to know of the existence of a violative 

condition." Kenny Richardmn, 3 FMSHRC at 16. Section 110(c) liability is predicated on 

aggravated conduct constituting more than ordinary negligence. BethEnergy Mines, Inc., 14 

FMSHRC 1232, 1245 (Aug. 1992). Here, we conclude that the judge erred in reaching his 

section 11 O(c) conclusions by failing to consider evidence regarding the foremen's efforts to 

eliminate the violative condition. 

We have already concluded that the record supports the judge's finding that Patterson and 

Richardson, agents ofCannelton,

9 possessed actual knowledge of the accumulation problem by 

way of the preshift-onshift reports. Slip op. at 6. However, as we have determined, the judge 

failed to cons.ider Patterson's and Richardson's testimony regarding their efforts to clean up the 

accumulation. Because an agent's actions following his awareness of a violative condition are 

8 Section 11 O(i) sets forth six criteria to be considered in the assessment of penalties 

under the Act: 

[I] the operator's history of previous violations, [2] the 

appropriateness of such penalty to the size of the business of the 

operator charged, (3] whether the operator was negligent, [4] the 

effect on the operator's ability to continue in business, (5] the 

gravity of the violation, and [6] the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after 

notification of a violation. 

9 At the hearing, the parties stipulated that Patterson and ~chardson were agents of 

Cannelton. Tr. 18-19. 

736 
critical to the section llO(c) analysis, we vacate the judge's detennination that Patterson and 

Richardson are liable under section 11 0( c) and remand for findings of fact related to the 

foremen's cleanup efforts. In the event the judge finds section llO(c) liability, he shall reassess 

the civil penalty or penalties based on the section 11 O(i) criteria as they apply to individuals. 

Ambrosia Coal and Consfl·. Co., 19 FMSHRC 819, 823 (May 1997); Sunny Ridge Mining Co., 

19 FMSHRC 254, 272 (Feb. 1997). 

Ill. 

Conclusion 

For the foregoing reasons, we affirm the judge's determination that Cannelton violated 

section 75.400, vacate his determinations that the violation resulted from unwarrantable failure 

and that the foremen are I iable under section 11 0( c), and remand for further consideration 

consistent with this opinion. 

Theodore F. V erheggen, Co 

Robert H. Beatty, Jr., Commissio r 

737 
Chairman Jordan and Commissioner Marks, dissenting in part: . 

It is clear from the record in this case that an extensive accumulation of coal existed for at 

least 2 weeks at the Cannelton mine, in violation of 30 CFR § 75.400. 1 It is also clear from the 

record that Cannelton officials were indifferent to this violation, simply because it was a smaller 

accumulation than those they personally considered dangerous. Because we agree with the 

judge's conclusion that Cannelton's conduct was "inexcusable," 18 FMSHRC 651, 659 (Apr. 

1996) (ALJ), we would affirm his finding that the violation was a result of the operator's 

unwarrantable failure. 

The majority docs not dispute the judge's finding that the accumulation was extensive, 

measuring approximately 10 feet square and 4 feet deep~ Slip op. at 6. In fact, the inspector 

testified that when the violation was abated, 8 to 12 tons of coal were removed. Tr. 54 (emphasis 

added). Even one of the Cannelton foremen estimated that 6 to 8 tons of coal were taken away to 

abate the violation. Testimony of Richardson, Tr. 306. The majority also agrees with the judge's 

conclusion that Cannelton was placed on notice of the violation by preshift-onshift reports. Slip 

op. at 6. Nonetheless, despite overwhelming evidence provided by those same reports that the 

accumulation had existed for at least 2 weeks, and despite clear proof that any efforts to eliminate 

the accumulation were ineffectual at best and half-hearted at worst, the majority declines to 

affirm the judge's finding of unwarrantable fai lure. 

Our colleagues in the majority insist that a remand is necessary to permit the judge to 

make a credibility determination with respect to Elkins, slip op. at 7, to ascertain the duration of 

the violation. This is an unnecessary exercise for two reasons. First, the judge decided the 

question of duration when he found that the accumulation existed for 2 weeks, crediting the 

testimony of the two fire bosses and a general laborer. 18 FMSHRC at 65 5. While explicitly 

crediting this testimony over that of Richardson and Patterson, in making this finding he also 

implicitly credited their testimony over that of Elkins. See Fort Scoll Fertilizer- Cullor, Inc., 19 

FMSHRC 1511, 1516 (Sept. 1997) (concluding that the judge implidtly credited miner's 

testimony that he was not aware of brake problems). 

More importantly, a remand is unnecessary because of the staggering amount of evidence 

demonstrating that the accumulation had developed over a 2-week period. Thirty-five preshift 

1 Although we agree with the majority that the judge properly found an accumulation 

violation, slip op. at 5, we fear that the majority's discussion of the violation may create the 

incorrect impression that some level of accumu_lation is permitted under the standard. This is not 

consistent with Commission case law. In defining an accumulation in Utah Power & Light Co., 

Mining Div., 12 FMSHRC 965, 968 (May 1990), the Commission emphasized that it was 

"Congress' intention to prevent, not merely to minimize, accumulations" and that section 75.400 

was "directed at preventing accumulations in the first instance, not at cleaning up the materials 

within a reasonable period of time after they have accumulated." ld. (citing Old Ben Coal Co., l 

FMSHRC 1954, 1957 (Dec. 1979) (emphasis added). 

738 
reports written during that 2-week period indicated that the No. 3 belt V -scraper was "dirty" or 

"need(ed] clean[ing]." Gov't Ex. 9. On 34 of those reports, the. condition was reported as 

"continued," indicating that it had previously existed. Tr. 316, 335-36. After reviewing these 

reports (many of which he had countersigned) during the trial, Elkins was asked whether he 

denied "that there was an accumulation at the No.3 belt near the V-scraper from February 14th 

to march [sic] the 1st." Tr. 336. He replied, unequivocally, "No, ma'am. I do not." ld 

In addition to the preshift reports, which we find compelling, the testimony of the preshift 

examiners makes clear that this accumulation increased over a period of2 weeks, and was not 

suddenly created just before the inspection. Dwight Siemiaczko testified that '·from February 

14th, ... it grew in size from that day to March 1." Tr. 130. Lee Tucker stated that the 

accumulation occurred '•[o]ver the extended period of time .... I think the two weeks that we're 

talking about that's recorded in the book." Tr. 195.2 Clearly, substantial evidence supports the 

judge's finding that this accumulation slowly grew over a 2-week period, and did not suddenly 

emanate 3 hours before the inspection.3 

In remanding the case for further consideration of Cannelton's efforts to clean up the 

accumulation, the majority fails to recognize the deeply disturbing principle underlying 

Cannelton's action (or inaction). The reigning operating procedure at this mine was that the 

foremen tolerated coal accumulations up to a certain amount. They were simply complacent 

about accumulations smaller than those they personally considered dangerous. This classic 

indifference to a dangerous ignition source is the prototype of an unwarrantable failure. 

The testimony of the foremen illustrates their blase attitude. For example, Elkins, when 

asked what he considered a "manageable" amount of coal accumulation, stated "(t]welve inches 

or so." Tr. 363. He readily admitted passing by the relevant area 3~ hours before the inspection 

and observing a 4 by 4 foot accumulation that was 18 to 24 inches deep. Tr. 322. When asked 

when he would require miners to go to the area to shovel, he stated "(o]nce it [the accumulation] 

g9t to a height. that concerned me," which, he subsequently admitted, was when it was 6 to 8 

inches from the belt. Tr. 338-39. A remand is not necessary to determine the credibility of this 

witness. Even accepting his testimony concerning the size of the accumulation, his failure to 

exert reasonable effort.$ to eliminate it supports the unwarrantable failure determination. 

2 The majority speculates that Siemiaczko' s and Tucker's statements that the 

accumulation may have been caused by a problem with the feeder could corroborate Elkins' 

testimony about the size of the accumulation. Slip op. at 7-8. However, their testimony indicates 

that even if that was the cause, the accumulation nonetheless developed over a 2-week period. 

3 Although we need not reach the issue, we note that an unwarrantable failure designation 

for an accumulation of this size might be supported even if the duration were 3 hours instead of 2 

weeks. 

739 
Richardson, when asked what he considered an excessive amount of coal requiring 

cleanup, stated, "[A]n excessive amount of coal, it could be anything. It's according to how high 

your belt is," and suggested that it needed to touch the rollers. Tr. 283. He bluntly testified that: 

Tr. 307. 

lfthere was a mound of coal there, [at the scraper] it presented no 

problem. . . . [Y]ou could have, like I told you, 14 to 16 inches of coal, I 

would think nothing of it ifl had a place over here that had a coal spillage 

in it or something else wrote up that I needed the men to work on. That 

would be put on the last of my list. And if they got down to it, good. If 

not, it would be passed on. 

Patterson testified that he only saw spillage two times at the No. 3 belt, and that both 

times it was 2 or 2Y2 feet high, 4 feet by 6 feet. Tr. 389. When asked if he considered either of 

the 2 or 2 Y2 foot high accumulations hazardous, he stated that he did not. I d. 

In sum, the operator's baseline was that at least a foot of coal needed to accumulate 

before it made sense to worry about it. It is not surprising, therefore, that Cannelton's cavalier 

attitude towards accumulations resulted in only the most perfunctory of efforts to eliminate it. 

The evidence cited by the majority in support of its decision to vacate the judge's finding that 

Cannelton did not make efforts to clean up, slip op. at 8, reveals lackluster attempts more 

indicative of Cannelton's nonchalant attitude about the accumulation than of a sincere effort to 

remove it. Even crediting the evidence on which the majority relies, substantial evidence 

indicates that Cannelton's cleanup attempt was woefully inadequate. 

First, foreman Richardson testified that he never asked for additional personnel to clean 

up the area .. When asked if he thought he needed additional help, he replied: "Not until I got the 

violation 'cause I never seen any problem there that I needed to shut down a section or anything 

to pull extra people in." Tr. 304. Although he asserted thai men worked to remove the 

accumulation, he could not state how often or when this work was performed. Tr. 299.4 In 

addition, miners Siemiaczko and Craft testified that they were unaware of any effort to clean up 

the accumulation during the 2 weeks prior to the inspection. Tr. 140-41, 227-28. Also, the 

4 Patterson testified that he did shovel the accumulation once himself. Tr. 387. He also 

testified that he assigned two men to clean belts and that on one occasion he specifically assigned 

his belt cleaners to clean up the accumulation at the V -scraper, Tr. 386-92, although he failed to 

note these cleanup efforts in the examination books. Tr. 412,422-23. Thus, the judge's finding 

that "neither Richardson nor Patterson ... made any specific attempt to have it [the 

accumulation] cleaned up, 18 FMSHRC at 658, is an overstatement, b1:1t it constitutes harmless 

error in light of Cannelton's overwhelming failure to initiate a cleap.up reasonably designed to 

eliminate the accumulation. 

740 
inspector testified that nobody was cleaning up the accumulation when he arrived on the scene. 

Tr. 60. 

The facts of this case are strikingly similar to those in the recent Commission case A max 

Coal Co., 19 FMSHRC 846 (May 1997), in which the Commission affirmed the judge's decision 

upholding an unwarrantable failure designation on an accumulations violation. As in this case. 

A max involved an extensive accumulation that existed for several shifts preceding the issuance of 

the order. We rejected Amax's defense that because the day shift manager's decision to send 

only one miner to clean up the accumulation was based on a good faith (although mistaken) 

belief that this would be effective, the violation should not be designated unwarrantable. Jd. at 

851. We emphasized that "the operator's good faith belief must be reasonable under the 

circumstances.'' !d. We held that the preshift examiner's incorrect assessment of the spill was 

not reasonable in light of the size of the accumulation. Similarly, we fii1d that here, Cannelton's 

efforts - even including those cited by the majority as the basis for its remand- were clearly 

unreasonable and patently ineffectual. See Peabody Coal Co., 18 FMSHRC 494, 501 (Apr. 

1996) (Chairman Jordan and Commissioner Marks, dissenting in part) ("[T]he success or failure 

of an operator's effort to achieve compliance is a factor that must be considered in deciding 

whether the operator acted reasonably and in good faith."). 

The Commission's decision in Peabody Coal Co., 14 FMSHRC 1258 (Aug. 1992) is also 

instructive. In that case, in which we affirmed an unwarrantable failure determination, the judge 

credited the inspector's testimony that an extensive accumulation of coal had existed for up to 1 

week. !d. at 1261-62. Entries for seven of the eight preshift examinations made prior to the 

inspection described problems with accumulations or spilling in the relevant area. !d. at 1262. 

The Commission noted that the preshift reports showed not only that the operator had prior 

notice of an accumulation problem, but also demonstrated "that greater efforts were necessary to 

assure compliance with section 75.400." !d. In addition, we acknowledged that Peabody's 

failure to rem~dy the spilling problem was a proper consideration in the unwarrantable failure 

determination, and that the judge was correct to consider the inspector's testimony that, as in this 

case, at the time of the inspection no one was attempting to remove the accumulation. !d. 

Finally, in Peabody, the judge found that only one miner was assigned to clean the area, and she 

had other responsibilities. !d. at 1263. He concluded that this effort was not sufficient to 

effectively remedy the cited accumulation, a finding which the Commission agreed supported his 

determination that Peabody eng~ged in aggravated conduct. !d. Thus, substantial evidence 

amply supports the judge's finding that Cannelton engaged in aggravated conduct constituting an 

unwarrantable failure. 

We also agree with the judge's determination that Patterson and Richardson are liable 

under section 11 0( c). The proper legal inquiry for determining liability under section II 0( c) is 

whether the corporate agent knew or had reason to know of a violative condition. Kenny 

Richardson. 3 FMSHRC 8, 16 (Jan. 1981), affd on other grounds, 689 F.2d 632 (6th Cir. 1982), 

cert. denied, 461 U.S. 928 (1983). The majority does not dispute the judge's finding that these 

two foremen had actual knowledge of the accumulation, due to the preshift-onshift reports noting 

. 741 
such conditions, which they signed. Slip op. at 11. Foreman Richardson signed 35 reports at 

issue and foreman Patterson signed 9 of those reports. Gov't. Ex. 9. Despite determining that 

these foremen had actual knowledge of a persistent accwnulation, the majority incorrectly 

remands the section 110(c) issue for further findings related to the foremen's cleanup efforts. 

Such a remand is unnecessary because the record is replete with references regarding their abject 

failure to adequately eliminate the accumulation. Supra at 13-14. No cleanup efforts were 

recorded in the examination books. Tr. 293-94. The inspector testified that he had no 

knowledge of any attempts by them to clean up the accumulation. Tr. 100-02. The only 

evidence of Patterson's cleanup efforts is negligible, see supra at 14 n.3, and Richardson could 

not cite one specific instance in which his miners cleaned up the relevant area. Tr. 298-99. Thus 

substantial evidence supports the judge's finding that these individuals knew of the violative 

condition and failed to take effective steps to remedy condition. When substantial evidence 

supports a judge's finding, we are required under the Mine Act to affirm it. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I).5 

In Prabhu Deshelly, 16 FMSHRC 1046 (May 1994), the Commission found a general 

mine foreman liable under section II O(c) under facts less egregious than those presented here. 

There, for 8 working days, the foreman signed the belt examiner's report, which had indicated 

that the belt was dirty or needed cleaning, but took no steps to verify that the accumulations were 

cleaned up. ld at 1050-5 I. Sin:tilarly, Patterson and Richardson failed to take effective steps to 

remedy the accumulation problem when they were made aware by the preshift reports, which 

they signed, that the problem existed. 

5 The majority has apparently overlooked the posture of this case as it stands before usthe judge determined that the operator engaged in unwarrantable failure and that Patterson and 

Richardson were liable under section IIO(c). Accordingly, we have not invaded the province of 

the judge as our colleagues suggest, but, in accordance with Mine Act section 113, have only 

reviewed the record to see whether substantial evidence supports those determinations. Having 

satisfied ourselves that substantial evidence supports the judge's determinations, we vote to 

affirm them. 

742 
Accordingly, we would afftrm the judge's determinations that the accumulation violation 

was a result of unwarrantable failure, and that Patterson and Richardson are liable under section 

llO(c) for knowingly authorizing, ordering, and carrying out the violation. 

743 

• 
Distribution 

David J. Hardy, Esq. 

Jackson & Kelly 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 

Cheryl C. Blair-Kijewski, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Administrative Law Judge T. Todd Hodgdon 

Federal Mine Safety and Health Review Commission 

Office of the Administrative Law Judge 

2 Skyline, I 0'11 Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

744 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WESTERN AGGREGATES, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 28, 1998 

Docket No. WEST 98-308-M 

A.C. No. 04-04950-05528 

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

ORDER 

BY THE COMMISSION: 

This m.atter arises under the Federal Mine Safety and Health Act of 1977,30 U.S.C. § 80 1 

et seq. (1994) ("Mine Act"). On June 23, 1998, the Commission received from Western 

Aggregates, Inc. ("Western Aggregates"), a letter dated June 22 requesting that the Commission 

reopen penalty assessments that had become final orders ofthe Commission pursuant to section 

I 05(a) of the Mine Act, 30 U.S.C. § 815(a). It has been administratively determined that the 

Secretary of Labor does not oppose the motion for relief filed by Western Aggregates. 

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

Secretary's proposed penalty assessment within which to notify the Secretary that it wishes to 

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

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

In the June 22 letter, John Trembley, Plant Manager at Western Aggregates, asserts that 

Western Aggregates' failure to timely file a hearing request to contest proposed penalties resulted 

from its mistaken mailing of the request to a "payment lockbox" of the Department of Labor's 

Mine Safety and Health Administration ("MSHA") in Pittsburgh, Pennsylvania, rather than to 

MSHA's Civil Penalty Compliance Office in Virginia. Western Aggregates attached to the June 

22letter various documents, including a letter dated May 21, 1998, from Western Aggregates to 

745 
MSHA's Civil Penalty Compliance Office, a Federal Express '_'Sender Activity Summary" 

showing that a delivery sent by Western Aggregates was received at MSHA's payment lockbox ori 

April 1, 1998, and a response letter from MSHA to Western Aggregates dated June 11, 1998. 

According to its May 21 letter, Western Aggregates mailed a hearing request on March 31 to 

MSHA's payment lockbox in Pennsylvania. MSHA's June 11 response letter alleges that on 

March 3, 1998, MSHA mailed a notice of proposed penalties to Western Aggregates, that the 

operator received the notice on March 6, and that the proposed penalties became final on April 5. 

MSHA also indicates in the letter that because Western Aggregates was unable to present a copy 

of the hearing request and the Federal Express "Sender Activity Summary" did not indicate what 

was sent in the package, the operator was required to pay the proposed penalties and associated 

costs. 

We have held that, in appropriate circumstances and pursuant to Rule 60(b). we possess 

jurisdiction to reopen uncontested assessments that have become final under section 1 05(a). 

Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. I 994); Jim Walter Resources, Inc., 15 

FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and 

that, if the defaulting party can make a showing of adequate or good cause for the failure to timely 

respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal 

Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with Rule 

60(b )( 1 ), we have previously afforded a party relief from a final order of the Commission on the 

basis of inadvertence or mistake. See Kinross DeLamar Mining Co., 18 FMSHRC 1590, 159 1-92 

(Sept. 1996); General Chem. Coi]J., 18 FMSHRC 704, 705 (May 1996); Drummond Co., 17 

FMSHRC 883, 884 (June 1995). 

746 
On the basis of the present record, we are unable to ev~uate the merits of Western 

Aggregates' position. As indicated in MSHA's June llletter, the Activity Summary does not 

indicate what Western Aggregates sent to MSHA's Iockbox in Pittsburgh. In the interest of 

justice, we remand the matter for assignment to a judge to determine whether Western Aggregates 

has met the criteria for relief under Rule 60(b ). If the judge determines that relief under Rule 

60(b) is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's 

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

Marc Lincoln Marks, Commissioner 

Theodore F. Verheggen, Com~i-{9 o 

( 

"-

Robert H. Beatty, Jr., Co 

747 
Distribution 

John Trembley, Plant Manager 

Western Aggregates, Inc. 

P.O. Box 829 

Marysville, CA 95901 

Sheila Cronan, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety and Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

748 
ADMINISTRATIVE. LAW JUD.GE DECISIONS 
. ' " .. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 6 1998. 

LOCAL 1702, DISTRJCT 31, 

UNITED MINE WORKERS OF 

AMERJCA (UMWA), 

COMPENSATION PROCEEDING 

Docket No. WEV A 98-1 0-C 

on behalf of 141 miners, 

Applicant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Blacksville No. 2 Mine 

Mine ID No. 46-01968 

DECISION 

Appearances: Richard Eddy, United Mine Workers of America, District 31, 

Fairmont, West Virginia~ on behalf of Applicant; 

Before: 

'Elizabeth S. Chamberlin, Esq., Consolidation Coal Company, 

Pittsburgh, Permsylvania. on behalf of Respondent. 

Judge Melick 

This Compensation Proceeding is before me pursuant to Section Ill ofthe Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et. seq., the "Act" upon the application filed by 

the United Mine Workers of America, Local 1702, District 31 (UMWA), against the 

Consolidation Coal Company (Consol). The UMWA seeks compensation for 141 of its 

members employed at the Blacksville No. 2 Mine, who were allegedly idled by a withdrawal 

order issued by the Secretary of Labor pursuant to Section 107(a) of the Act. 1 

1 Section 1 07(a) of the Act provides 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 1 04( 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 practices which caused such imminent danger no longer exist. The issuance of an 

order under this subsection shall not preclude the issuance of a citation under section 1 04 or the 

proposing of a penalty under Section 11 0. 

749 
The subject order, No. 3492298, issued by Inspector Joseph Migaiolo, of the Department 

ofLabor's Mine Safety and Health Administration (MSHA), on May 15, 1997, at 8:17a.m., · 

alleges as foJiows: 

A 1 07(a) Order is being issued for the 75 longwall section and affected 

area due to a failure of the bleeder system which has shown excessive methane at 

the tailgate area which has retreated to between 12 and 13 block markers. 

Management has been experiencing longwall methane monitoring of 2% + for the 

past two shifts at tail. Readings as high as 2.7- 3.0 were recorded by 

management by methane detectors at tail. Air at the tail is returning from the gob 

down the tailgate. The longwall Shear experienced greater than 2.0% which 

deenergized the system at least twice on the day shift on 05/14/97, however, 

methane detection by hand held showed .4 - .5% CH4 and a split at tail to gob. 

Due to a progressive methane build up this order is issued for control purposes 

until the operator prepares a plan and complies with the (illegible word]. 

The operator experienced excessive methane on 5/14/97 at the tail and also on the 

midnite shift of 5115/97. As such the operator discontinued operation on the 

longwall and deenergized the power from the affected area. The day shift has 

been idled. 

The order was terminated at 6:30p.m., on May 15, 1997 (Applicant's Exhibit No. 1, 

Pg. 3). Consol subsequently contested the order before this Commission, but on February 26, 

1998, the Secretary vacated the order on the grounds that it was issued in error (Applicant's 

Exhibit No. 1, Pg. 4). There is no dispute that for purposes of compensation under the first two 

sentences of Section 1 11 of the Act, it is irrelevant whether or not the requisite order was issued 

in error or has been vacated. 

Applicant asserts that because this order idled the miners on the day shift on May 15, 

1997, those miners are entitled to compensation pursuant to the first sentence of Section 111. 

That sentence provides as follows: 

If a coal or other mine or area of such mine is closed by an order issued under 

section 103, section 104, or section I 07, all miners working during the shift when 

such order was issued who are idled by such order shall be entitled, regardless of 

the result of any review of such order, to full compensation by the operator at their 

regular rates of pay for the period they are idl~d, but for not more than the balance 

of such shift. 

Applicant further maintains that because the order also idled the miners on the afternoon 

shift on·May 15, 1997, those miners are entitled to compensation pursuant to the second sentence 

of Section 11.1. That sentence provides as follows: 

750 
If such order is not terminated prior to the next working shift, all miners on that 

shift who are idled by such order shall be entitled to fuil compensation by the 

operator at their regular rates of pay for the period they are idled, but for not more 

than four hours of such shift. 

It is undisputed in this case that the day shift on May 15, 1997, was scheduled to work 

from 8 a.m. to 4 p.m., and that the afternoon shift on that date was scheduled to work from 4 p.m. 

to 12 midnight. It is further undisputed that the operator decided at approximately 3:30am., on 

May 15, 1997, to make a major air change in the mine pursuant to 30 C.F.R. § 75.324. In 

accordance with that regulation, Consol was required to evacuate all non-essential persons and 

remove electrical power until such time as the affected areas had been inspected and found safe. 

It is undisputed that all affected miners had accordingly been withdrawn by 8 a.m., before the 

issuance of the order, and the mine did not return to full production until May 16, 1997. Both the 

May 15 day shift and afternoon shift miners were advised by Conso] not to appear for work in 

light of its prior voluntary idlement of the mine. 

The present controlling authority for the issues at bar is Local Union I 261. District 22. 

UMWA v. Consolidarion Coal Company. 11 FMSHRC 1609 (l989),Aff'd sub nom. Local Union 

1261 v. FMSHRC. 917 F.2d 42 (D.C. Cir. 1990). As in the case at bar, the issue therein was 

whether miners are entitled to compensation under the first and second sentences of Section Ill 

when the mine operato'r has voluntarily closed the mine for safety reasons prior to the issuance of 

an order described in Section 111 but where such an order is subsequently issued. 

The Commission in that case, at 11 FMSHRC at 1613 - 1614, held as follows: 

The meaning of the first two sentences of section 111 is clear. If a 

specified withdrawal order has been issued, "all miners workim~ during the shift 

when· such order was issued who are idled by such order'' are entitled to · 

compensation for the remainder of their shift. (Emphasis added). If the order is 

not terminated prior to "the next workin~ shift, all miners on that shift who are 

idled by such order" are entitled to compensation for up to four hours. (Emphasis 

added). The language is in nowise qualified. Thus, to be entitled to shift 

compensation, a miner must either be working during the shift when the specified 

order was issued and have been idled by the order or, if the order is not terminated 

prior to the next working shift, must be on the next workin~ shift. 

Here, the preconditions for entitlement to shift compensation were not 

met. At the time the order was issued, no miners were working nor had they been 

since the previous evening at which time Consol had voluntarily withdrawn all 

miners in order to guarantee their safety. Therefore, none of those for whom 

compensation is claimed were "working during the shift when ... [the] order was 

issued." Further, Consol advised miners on the other two shifts that "the mine is 

idled until further notice." [Citation omitted]. Therefore, none of those for whom 

751 
compensation is claimed were on "the next workin2 shift." (Emphasis added.) 

[Footnote omitted]. We therefore hold that the claimants, not having met these 

plainly stated prerequisites, were not eligible to be compensated. 

The Court of Appeals, on review, held that the Commission's interpretation limiting the 

phrase "working during the shift," to miners actually working when the order is issued, was a 

reasonable interpretation. Local Union 1261 , 917 F .2d at 4 7. 

The Commission majority explained the rationale for its decision as follows: 

Apart from the plain wording ofthe statute, there are also practical 

considerations. A statute should not be construed in a way that is foreign to 

common sense or its legislative purpose. Sutherland Statutory Construction §§ 

45.09, 45.12 (4th ed. 1985). As discussed, the Mine Act involves a balancing of 

the interest of mine operators, and miners, with safety being the preeminent 

concern. Section 2 of the Mine Act specifies at the outset that "the first priority 

and concern of all in the coal or other mining industry must be the health and 

safety of its most precious resource- the miner," and section 2(e) adds that "the 

operators of such miners with the assistance of the miners have the primary 

responsibility to prevent the existence of (unsafe and unhealthful} conditions and 

practices in such mines." The Mine Act was not intended to remove from an 

operator the right to withdraw miners from a mine for safety reasons. While 

MSHA has the authority to order such withdrawal, it does not have that power 

excl usi vel y. 

* * * * * 

Thus, apart from the fact that no.miners were present in the m_ine when the 

MSHA closure order was issued, it is apparent that the safety first edict of section 

2 was observed conscientiously by the mine operator here and that it would be a 

departure from the clear intent and purpose of the Mine Act to penalize the 

operator for voluntarily idling miners for their own protection. To impose such 

liability could conceivably encourage less conscientious operators in similar 

circumstances to continue production, at risk to the miners, until the MSHA 

inspectors arrived to issue a control order idling the miners. We do not believe 

that the Mine Act was intended to stifle such safety conscious actions by 

operators, as Consol took here. [Footnote omitted]. 

The purpose and scope of shift compensation can also be determined by 

another important concern expressed by Congress in adopting section 111 in its 

specific terms: insulating the mine inspector from any repercussions that might 

arise from his withdrawing miners and temporarily depriving them of their 

livelihood. A key passage from the Report of the Senate Committee setting forth 

752 
the rationale for the miners' compensation provision concludes by stating, "[t]his 

provision will also remove any possible inhibition of the inspector in the issuance 

of closure orders." Leg. Hist. at 635. This convinces us that Congress intended 

shift compensation rights to arise only when the physical removal of miners is 

effectuated by the inspector himself so that the inspector in carrying out his 

enforcement duties is not inhibited or distracted by workplace considerations 

wholly extraneous to the protection of miners. 

11 FMSHRC at 1614-15 

Applicant argues, however that the instant case is distinguishable from the Local Union 

1261 case in that here, it maintains, Consol attempted to avoid Section Ill liability by 

withdrawing miners in anticipation of withdrawal action by MSHA. The Commission in that 

case appeared to suggest that this might be a possible distinguishing factor. See Local Union 

1261, fn6 at pp. 1614-1615. However, even assuming, arguendo, that this could be a 

distinguishing factor, I find insufficient evidence that Consol withdrew the subject miners other 

than for their safety and for compliance with the withdrawal requirements under 30 C.F.R. § 324. 

On the facts of this case Consol could reasonably not have anticipated the issuance of an 

imminent danger or other prerequisite withdrawal order. Indeed, the Secretary herself 

subsequently vacated her withdrawal order in this case admitting that she had issued it in error, 

presurhably for insufficient evidence. 

As Consol notes in its brief, the air flow condition existing on the 7S longwall was not, in 

any event, of such a nature as to lead management to anticipate a closure order involving any 

area of the mine. While methane in excess of 1 percent required the section to be deenergized 

and the condition corrected, there was no particular need to notify MSHA. Consol did in fact 

deenergize the section and corrected the condition and, as evidenced by the absence of citations 

for safety violations, the response was adequate. 

Applicant also maintains that Consol was cognizant of a :ventilation problem on the 7S 

section for two weeks prior to May 1 5, 1997, and should accordingly have anticipated an order 

from MSHA. While there is evidence that the power had been taken off the longwall several 

times in the two week period before May 14'\ due to methane, there is no evidence that Consol 

was aware of any imminent danger or violative condition. Moreover, the reverse airflow 

problem apparently was not discovered until May l41

h. Safety Committeeman Michael Eddy 

testified that he was not aware of any problem with reverse air flow in the longwall tailgate entry 

before that afternoon. Moreover, Mine Superintendent Edward Pride believed that the reverse air 

flow condition in the tailgate entry had not existed prior to the 14th because it was checked daily 

by the mine foremen. 

Applicant further maintains that even though Consol may not have had actual knowledge 

that an MSHA inspector would visit the mine it nevertheless should have expected such a visit 

when Safety Committeeman Michael Eddy, notified the foreman of the 7S longwall section in 

753 
the early hours of the May 14, afternoon shift, that he was exc~sing himself from work to go on 

union business. However, since Eddy could have conducted any number of activities while on 

"union business" it does not reasonably follow that an MSHA inspector would appear and issue a 

withdrawal order. Morever, Consol did not thereafter immediately idle the mine well in advance 

of the day shift as one would expect under Applicant's theory. Rather, Consol continued trying 

to correct the condition on the 7S section during the afternoon shift of May 14, 1997, and into the 

midnight shift on May 15, 1997. Applicant's proposed inference is therefore not reasonable nor 

is there a rational connection between the evidentiary fact (that Eddy went on "union business") 

and the ultimate fact to be inferred (that an MSHA inspector would thereafter appear and issue a 

withdrawal order). Garden Creek Pocahontas Co., 11 FMSHRC 2148 (November 1989). 

Under all the circumstances, I conclude that when Consol took the prudent action of 

withdrawing the miners, which was also consistent with the requirements of 30 C.F .R. § 324, it 

could reasonably not have anticipated the issuance of any withdrawal orders by the Secretary. 

Therefore, within the framework of Commission precedent, supported by the U.S. Court of 

Appeals for the D.C. Circuit, I conclude that the Applicant herein cannot prevail. Clearly, none 

of the subject miqers were "working during the shift" within the scope of this legal interpretation 

and there is insufficient evidence to conclude that Consol withdrew the subject miners in 

anticipation of withdrawal action by the Secretary. The UMWA's reliance upon the earlier 

Commission decision in Peabody Coal Company, 1 FMSHRC 1785 (1979) and the dissenting 

Commissioners in Local Union 1261, is also misplaced. Indeed, ~he U.S. Court of Appeals for 

the D.C. Circuit agreed with the dissenting commissioners in Local Union 1261, that the 

majority had departed from the reasoning and result of Peabody Coal Company, 1 FMSHRC 

1785 ( 1979), and had, therefore, effectively overruled that decision. In the earlier Peabody case, 

the Commission had expressedly rejected the operator's argument that the Act provides first 

sentence compensation only for miners actually at work when a withdrawal order issues. Local 

Union 1261, 917 F.2d at 46-47. 

ORDER 

Compensation Proceeding Docket No. WEV A 98-1 0-C is DISMISSED. 

GliryMJ~ Admini :~ve Lat Judge 

754 
Distribution: 

Richard Eddy, United Mine Workers of America (UMWA), District 31 , 310 Gaston Avenue, 

Fairmont, WV 26554 (Certified Mail) 

Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh, 

PA 15241 (Certified Mail) 

\mea 

755 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, SUITE 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL 1 5 1998 

SECRETARY OF LABOR, 

MINE SAFETY AND .HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BLUE CIRCLE, INCORPORATED, 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 97-154-M 

A.C. No. 34-00026-05597 

Docket No. CENT 97-155-M 

A. C. No. 34-00026-05598 

Docket No. CENT 97-156-M 

A. C. No. 34-00026-05599 

Docket No. CENT 97-157-M 

A. C. No. 34-00026-05600 

Docket No. CENT 97-158-M 

A. C. No. 34-00026-05601 

Tulsa Plant 

DECISION ON REMAND APPROVING SETTLEMENT 

Before: . Judge Melick 

These cases are before me upon petitions for assessment of civil penalty under Section 

1 05( d) of the Federal Mine Safety and Health Act of 1977 (the Act). Petitioner has filed a 

motion to approve a settlement agreement and to dismiss the cases. Modification and vacation of 

certain citations and a reduction in overall penalties to $8,848.00, have been proposed. I have 

considered the representations and documentation submitted in these cases, and I conclude that 

the proffered settlement is acceptable under the criteria set forth in Section 11 O(i) of the Act. 

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

ORDERED that Respondent pay a penalty of$8,848.00, within 30 day of this order. · 

GaryMelic 

Administra ·ve Law Judg 

756 
Distribution: 

Mary K. Schopmeyer, Esq., Office of the Solicitor, U.S. Dept. of Labor, 525 South Griffin St., 

Suite 501, Dallas, TX 75202 

Daniel J. Haupt, Conference & Litigation Representative, U.S. Dept. of Labor, Mine Safety and 

Health Administration (MSHA), 11~0 Commerce St., Room 4C50~ Dallas, TX 75242 

C. Gregory Ruffennach, Esq., 450 East 3rd Avenue, Durango, CO 81301 

/mea 

757 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JUL .. 1 5 1998 

SECRETARY OF LABOR, 

MINE SAFETY ANP HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EASTERN RIDGE LIME COMPANY, L P, 

Respondent 

. 

. . CIVIL PENALTY PROCEEDING 

Docket No. VA 96-21-M 

A. C. No. 44-00040-05559 

Eastern Ridge Lime Company, L P 

DECISION ON REMAND 

Before: Judge Weisberger 

This matter is before me based on a remand order issued by the Commission on July 2, 

1998, for further consideration consistent with the decision in the case issued by the United 

States Court of Appeals for the Fourth Circuit (Eastern Ridge Lime, L P v. FMSHRC No. 97-

1579 ( 41h Cir. April 13, 1998). In its decision, the Courts of Appeals remanded "for further fact 

finding and analysis of the penalties to be assessed" (slip op. at 7). 

In order to clarify my previous decision, (19 FMSHRC 398 (February 1997)), and upon 

reconsideration, I find that, in assessing a penalty, and evaluating the level of gravity of the cited 

violations, it i$ not necessary to make a specific finding of causation. The high level of gravity is 

based on the fact that the violation contributed to a fatal roof fall. Further, in evaluating a 

penalty, I place most weight on my finding that, for the reasons discussed in the original 

decision, the level of Respondent's negligence constituted aggravated conduct. Specifically, the 

record establishes that Respondent repeatedly ignored the warnings of its workers regarding 

observed unsafe conditions. Accordingly, I reiterate my initial findings regarding the penalty to 

be assessed. 

It is ORDERED the Respondent shall pay a total civil penalty of $85,000 for the 

violations cited in Order No. 4289773 and Citation No. 4389772. 

758 
-

Distribution: 

Yoora Kim, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, 

Suite 420, Arlington, VA 22203 (Certified Mail) 

' Thomas B. Weaver, Esq., John F. Cowling, Esq., Armstrong, Teasdale, Schlafy & Davis, One 

Metropolitan Square, Suite 2600, St. Louis, MO 63102-2740 

dcp 

759 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 Skyline, Suite 1 000 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

'JUL 1· 7 1998 

INLAND STEEL MINING COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (.MSHA), 

Petitioner 

V. 

INLAND STEEL MINING COMPANY, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. LAKE 98-4-RM 

Citation No. 7809287; 9/5/97 

Docket No. LAKE 98-5-RM 

Citation No. 7809288, 9/9/97 

Minorca Mine 

Mine ID No. 21-02449 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 98-45-M-A 

A.C. No. 21-02449-05611 

Minorca Mine 

DECISION 

Appearances: L. Joseph Ferrara, Esq., Jackson & Kelly, Washington, D.C., for 

Contestant/Respondent; 

Christine M. Kasak, Esq., Office of the Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for Respondent/Petitioner. 

Before: Judge Hodgdon 

These consolidated cases are before me on Notices of Contest and a Petition for 

Assessment of Civil Penalty filed by Inland Steel Mining Company against the Secretary of 

Labor, and by the Secretary, acting through her Mine Safety and Health Administration (MSHA), 

against lnland Steel, respectively, pursuant to section 105 of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815. The company contests the issuance to it of two citations alleging 

violations of the Secretary's mandatory health and safety standards. The petition seeks a penalty 

of$1,328.00 for the contested violations. For the reasons set forth. below, I vacate one citation, 

modify and affirtn the other, and assess a penalty of$50.00. 

760 
Baclg:round 

The Minorca Mine is an open pit, taconite' mine in St. Louis County, Minnesota, 

operated by Inland Steel. On September 5, 1997, while conducting a semi-annual inspection of 

the mine, MSHA Inspector Leon Mertesdorf issued two citations alleging violations of section 

56.20011 of the Secretary's regulations, 30 C.F.R. § 56.20011 . Citation No. 7809287 alleges 

that: 

At the South side of the Plant Electric Shop, there was a 

Service road that passed along said shop that was [a] travel route 

from the Fines Crusher and other associated shops. There was a 

Fifth Wheel Semi-Trailer used for storage parked at the said 

location, South of the Plant Electric Shop, which was a hazard to 

any vehicles traveling from the lower plant site. The said Trailer 

front end was raised by placing blocks under the doiJy wheels. The 

height of the trailer was 51 inches from the roadway/ground that 

was graded up to the trailer. The hood of a pickup truck was 

48 inches, and ~puld travel under the raised trailer. The trailer 

supports/dollies were I 0 feet back from the end of the raised end of 

the trailer, that was parked with the front facing South. The traffic 

traveled from the South and curved toward the left/West. There 

was no barricade or even a warning to prevent travel under [the] 

raised trailer. 

Citation 7809288 alleges that: 

At the bottom floor of the Flux Plant of the Pellet Plant, 

there was an Over-head Crane with a Repair Bay below that was 

~ot barricaded while an employee was inspecting and working with 

hand tools on the said over-head crane, and the hand tools could be 

dropped upon persons below. The area was not barricaded or 

warning placed at the entrance to said Service bay, to prevent 

persons from entering below a hazardous condition that would alert 

that person of conditions that were unaware to them. 

1 "Taconite" is "[a] local term used in the Lake Superior iron-bearing district of 

Minnesota for any bedded ferruginous chert or variously tinted jaspery rock, esp. one that 

enclosed the Mesabi iron ores (granular hematite); an unleached iron formation containing 

magnetite, hematite, siderite, and hydrous iron silicates (greenalite, minnesotaite, and 

stilpnomelane ). The term is specif. applied to this rock when the iron content, either banded or 

disseminated, is a least 25%." American Geological Institute, Dictionary of Mining, Mineral, 

and Related Terms 560 (2d ed. 1997) (DMMR1). 

761 
Section 56.20011 requires, in pertinent part, that: "Areas where health or safety hazards exist 

that are not immediately obvious to employees shall be barricaded, or warning signs shall be 

posted at all approaches." 

A hearing was held on March 31, 1998, in Duluth, Minnesota. The parties also submitted 

post-hearing briefs in the cases. 

Findings of Fact and Conclusions ofLaw 

Citation No. 7809287 

Inspector Mertesdorf had been to the mine twice before the inspection in this case, once 

for an accident investigation and in March 1997 for a previous semi-annual inspection. He 

testified that as he drove up the road toward the trailer, "[e]verything looked different than I had 

seen it before and I couldn't understand how I could have missed something like this before" in 

March. (Tr. 37-38) He stated that the difference was that 

[T]he trailer was higher and there was -- the road was graded off 

entirely underneath the trailer and you couldn't find the road edge 

like it normally was. There used to be a road edge where the, you 

know, where a grader goes along the road. You'd leave a lip and 

there was kind of a washout there before. And this is all graded 

over. 

(Tr. 38.) The inspector later explained that the edge or lip that he was referring·to was grader 

windrow.2 He contended that "the hazard would be to possibly run underneath [the trailer]." 

(Tr. 40.) 

The company's evidence indicated that the trailer had been in the same location since 

1988 and there had not been any traffic incidents involving it. Mr. Gus Josephson, Inland's Staff 

Safety and Environmental Engineer, further testified that the roadway up to and on either side of 

the trailer was graded twice weekly and that any windrow resulting from the grading was not 

intended to serve as a benn along the road. He contended that any hazard involving the trailer 

was immediately obvious. 

The issue in this citation is whether the hazard perceived by the inspector, driving 

underneath the trailer, was "immediately obvious." The Commission has held that although 

something may be "readily observable" and "very much in plain sight" the hazard associated 

may not be obvious. American Materials Corp., 4 FMSHRC 415, 481 (March ~- However, 

~8L 

2 "Windrow" is a '~dge of soil pushed up by a grader or bulldozer." DMMRT at 628. 

"Windrow" is incorrectly reported as "windroll" throughout the transcript. 

762 
this is not such a case. I conclude that any hazard involving the trailer, and particularly the 

hazard of driving underneath it, is 'immediately obvious to someone approaching the trailer on 

the frontage road. 

The old saying that "a picture is wor;th a thousand words," applies to this citation. I base 

my decision mainly on Respondent's Exhibit B-1, a picture ofthe scene. In the picture it is clear 

that the trailer is not hidden from the roadway; anyone approaching it can see it from a long way 

off. Nor does it appear· that the roadway goes under the trailer. The roadway plainly goes on 

either side of it. Even if one were not concerned with driving under the trailer, one would still 

stay clear of the trailer to avoid hitting it. 

I find that the evidence strongly supports the Respondent's contention that any hazard 

involving the trailer would be "immediately obvious" to employees and that, therefore, no 

barricade or warning sign was required. Accordingly, I will vacate the citation. 

Citation No. 7809288 

In August 1997, Inland contracted with Lakehead Constructors to build a new overhead 

flux mill crane in the Flux Plant. While the construction project was proceeding, Inland flagged 

or blocked with tape all access ways to the work area. On the morning of September 9, 1997, the 

employee performing the preshift inspection in the area noted that the entrances to the work area 

were still blocked with tape at 7:30a.m. However, when the inspection party arrived at the area, 

between 10:00 a.m. and 11 :00 a.m., the tape blocking one of the doors was no longer up, but was 

found lying on the ground partially under the wheel of a basket-lift truck belonging to Lakehead. 

A Lakehead employee was on the crane checking the tightness of the bolts with a torque wrench 

at the time. Although there is no direct evidence as how the tape came down, it seems clear that 

someone maneuvering the Lakehead truck had knocked it down. 

Inland has stipulated that the citation sets out a violation of the Secretary's rules. 

Nevertheless, it argues that the citation should be vacated because the Secretary abused her 

discretion in issuing a citation to both Inland and the independent contractor. The company 

maintains that the Secretary's failure to follow the guidelines set out in III MSHA Program 

Policy Manual, Part 45, at 6 demonstrates this abuse of discretion. I do not agree and find that 

the Secretary did not abuse her'discretion in this case. . 

The Commission has recently s·wrunarized the law in this area, as follows: 

The Commission and various courts have long recognized 

that, under the Mine Act's scheme of strict liability, an operator, 

although faultless itself, may be held liable for the acts of its 

independent contractor. Bulk Transp. Services, Inc., 13 FMSHRC 

1354, 1359-60 (September 1991); Cyprus Indus. Minerals Co. v. 

FMSHRC, 664 F .2d 1116, 1119 (9th Cir. 1981 ). In instances of 

763 
multiple operators, the Secretary has "wide enforcement 

discretion" and may proceed against an operator, independent 

contractor, or both. Mingo Logan Coal Co., 19 FMSHRC 246, 

249 (February 1997), affdper curiam, No. 97-1392 (4'11 Cir. 

January 8, 1998); Conso/idalion Coal Co., 11 FMSHRC 1439, 

1443 (August 1989). The Commission has determined that "its -

review of the Secretary's action in citing an operator is appropriate 

to guar~ against abuse of discretion." W-P Coal Co., 16 FMSHRC 

1407, 1411 (July 1994). A litigant seeking to establish an abuse of 

discretion bears the heavy burden of establishing that there is no 

evidence to support the Secretary's decision or that the decision is 

based on an improper understanding of the law. Mingo Logan, 

19 FMSHRC at 249-50 n.5. 

The Commission has considered various factors in 

determining whether an enforcement action constitutes an abuse of 

the Secretary's discretion, including the operator's day-to-day 

involvement in the mine's operation (Mingo Logan, 19 FMSHRC 

at 250, W-P, 16 FMSHRC at 1411 ), whether the operator is in the 

best position to affect safety (Bulk, 13 FMSHRC at 1361) and 

whether the enforcement action is consistent with the purpose and 

policies of the Act (Old Ben Coal Co., 1 FMSHRC 1480, 1485 

(October 1979)). In addition, the Commission has considered 

whether any of the criteria of the Secretary's Guidelines for 

proceeding against an operator have been satisfied. See, e.g., Bulk, 

13 FMSHRC at 1360; Mingo Logan, 19 FMSHRC at 250. While 

failure to satisfy the criteria is not fatal to an enforcement decision 

(Mingo Logan, 19 FMSHRC at 250), the Commission has relied 

upon satisfaction of the criteria in concluding that there was no 

abuse (e.g., Bulk, 13 FMSHRC AT 1360).

4 

4 The Commission has repeatedly recognized that the Guidelines 

are policy statements and not binding on the Secretary. Mingo 

Logan, 19 FMSHRC at 250; D.H Blattner & Sons, Inc., 

18 FMSHRC 1580, 1586 (September 1996), appeal docketed, 

No. 96-70877 (9m Cir. Oct. 21, 1996). 

Extra Energy, Inc., 20 FMSHRC 1, 5-6 (January 1997). 

In this case, Inland, not Lakehead, had assumed the responsibility for barricading the 

entrances to the area where the crane was being installed, from the beginning. Having taken on 

that responsibility, it follows that Inland should al~o be responsible for the violation when the 

764 
blocking ribbon came down. In addition, since the crane was being constructed in Inland's 

building, Inland clearly was in the best position to affect safety by preventing access to the area 

in which the crane was being erected. Furthermore, the barricades were clearly for the benefit of 

Inland's employees who may have to walk through the area, not Lakehead's employees who 

were already working in the blocked off area. Accordingly, I conclude that the Secretary 

properly cited the operator for this violation. 

Significant and-Substantial 

The Inspector found this violation to be "significant and substantial." A "significant and 

substantial" (S&S) violation is described in Section 104(d)(1) ofthe Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four 

criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. 

FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 

103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015,2021 (December 

1987)(approving Mathies criteria). Evaluation of the criteria is made in terms of "continued 

normal mining operations." US Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). 

The question of whether a particular violation is significant and substantial must be based on the 

particular facts surrounding the violation. Texas gulf, Inc., 1 0 FMSHRC 498 (April 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC l 007 (December 1987). 

As in most cases, the issue here is whether the third criterion has been met, that is, 

whether the violation contributed to a hazard which would be reasonably likely to result in an 

injury. The inspeCtor testified that he found this violation to be S&S because he believed that the 

employee tightening-the bolts on the crane could drop his torque wrench and it could hit 

someone below. 

In order for this to occlir, there would have to be a confluence of events which happened 

simultaneously. First, someone would have to enter the area through the one door at which the 

blocking ribbon had been knocked down. Second, the employee would have to drop the wrench. 

Third, the person entering the area would have to be below the employee dropping the wrench. 

Fourth, the wrench would have to hit the person below. The evidence indicates that one or two 

Inland employees per shift were likely to be in the area. The evidence further establishes that the 

job of"torquing" the bolts took about two hours and then work on the crane was complete. 

765 
Considering all of these factors, I conclude that it was not reasonably likely that an injury . 

would occur in this situation. Accordingly, I will modify the citation to delete the "significant 

and substantial, designation. 

Ne~li~ence 

The inspector determined that Inland's negligence for this violation was low because 

"when [the Lakehead employee is] climbing about on a crane he should have also made sure that 

this area was roped off below." (Tr. 67.) I agree that the contractor's employee should have 

made sure that the area was blocked off. This is particularly true since he apparently was the one 

who knocked down the tape in the first place. I disagree, however, with the inspector's 

assessment of negligence. In view of the fact that Inland's preshift inspection had verified that 

the tape was still in place and that the tape was not taken down by an Inland employee, I 

conclude that Inland was not negligent at all in this instance and will modify the citation. 

Civil Penalty Assessment 

The Secretary has proposed a penalty of $309.00 for Citation No. 7809288. However, it 

is the judge's independent responsibility to determine the appropriate amount of penalty in 

accordance with the six penalty criteria set out in section 110(i) ofthe Act, 30 U.S.C. § 820(i). 

SellersburgStoneCo. v. FMSHRC, 736F.2d 1147,1151 (71hCir.1984); Wallace Brothers, Inc., 

18 FMSHRC 481,483-84 (April1996). 

In connection with th~ criteria, the parties have stipulated that the "Minorca Mine worked 

in excess of600,000 hours during the period January 1, 1996- December 31, 1996." (Jt. Ex. I.) 

Therefore, I conclude that it is a large mine. The Assessed Violation Report indicates that 189 

violations had occurred at the mine in the 2 years preceding these violations. (/d.) I find this to 

be in the average range for a mine this size and, thus, it neither aggravates nor mitigates a 

penalty. Inland did not present any evidence that a penalty would have an adverse effect on its 

ability to remain in.business, so I conclude that it would not. I have already found that the 

violation was not S&S, so its gravity is not serious, and I have already found that the company 

was not negligent. The evidence indicates that the Respondent demonstrated good faith in 

achieving rapid compliance after being informed of the violation. Taking all ofthese factors into 

consideration, I conclude that a penalty of $50.00 is appropriate for this violation. 

ORDER 

Accordingly, Citation No. 7809287 in Docket Nos. LAKE 98-4-RM and 

LAKE 98-45-M-A is VACATED and Docket No. LAKE 98-4-RM is DISMISSED~ and 

Citation No. 7809288 in Docket Nos. LAKE 98-5-RM and LAKE 98-45-M-A is MODIFIED by 

deleting the "significant and substantial" designation and reducing the level of negligence from 

"low, to "none" and is AFFIRMED as modified. Inland Steel Mining Company is ORDERED 

766 
TO PAY a civil penalty of $50.00 within 30 days of the date of this decision. On receipt of 

payment, Docket Nos. LAKE 98-5-RM and LAKE 98-45-M-A are DISMISSED. 

Distribution: 

J-1-Q~ T. Todd Hodgdon 

Administrative Law Judge 

L. Joseph Ferrara, Esq., Jackson& Kelly, 2401 PennsylvaniaAvenue, N.W., Suite400, Washington, 

DC 2003 7 (Certified Mail) 

Christine M. Kassak, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn 

Street, 8th Floor, Chicago, IL 60604 (Certified Mail) 

/fb 

. 767 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA TION'(MSHA), 

Petitioner 

v. 

HOOVER INCORPORATED, 

Respondent 

July 20, 1998 

CIVIL PENALTY PROCEEDING 

Docket No. SE 98-49-M 

A. C. No. 40-00053-05515 

Murfreesboro Quarry & Mill 

DECISION 

Appearance: Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Dept. of Labor, 

Nashville, Tenne~see, on behalf of Petitioner; 

Granville S. R. Bouldin, Jr., Esq., Bouldin & Bouldin, Murfreeesboro, 

Tennessee, on behalf of Respondent. 

Before: Judge Melick 

This case is before me upon the Petition for Civil Penalty filed by the Secretary of Labor 

against Hoover, Incorporated (Hoover) pursuant to Section 105(d) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 801(e) et. seq., the "Act," seeking a civil penalty of$252.00, 

for one violation of the mandatory standard at 30 C.F.R. § 56.7012. 

The citatio~ at bar, Citation No. 4898682, alleges a "significant and substantial" violation 

of the cited standard and charges as follows: 

The Ingersoll Rand DM25 SP Drill, company #509009 was left unattended 

while it was in operation. The drill operator was measuring the depth of holes 

previously drilled and away from the drill cab. There was a front-end loader and 

operator working below the bench where the drill was operating approximately 38 

feet below. In [sic} event that the drill were to unexpectedly malfunction, and 

since it was close to the edge of the bench, it could topple over and land where tl;le 

loader was operating resulting in possibly a fatality. While in operation, drills 

shall be attended at all times. 

The cited standard, 30 C.F.R. § 56.7012, requires that "[w]hile in operation, drills shall be 

attended at all times." 

768 
The subject mine is a surface limestone extraction and crushing operation. The limestone 

is drilled and blasted. It is then loaded onto trucks and taken to the crusher. Mining is performed 

by creating benches. According to Inspector E. G. Duarte, of the Department ofLabor's Mine 

Safety and Health Administration (MSHA), the subject drill was operating on a bench in the 

quarry area and the closest person to the drill was its operator who was measuring drill holes on 

the bench 150 to 180 feet away. According to Duarte, the drill at this time was drilling the hole 

closest to the edge of the 38 foot highwall and a front end loader was operating below the bench. 

Duarte approached the drill operator and asked if anyone was at the drill. The drill operator 

responded in the negative. Duarte did not observe anyone else on the bench at the time. 

It is undisputed that photographs (Gov. Exhs. 3A through 3G) accurately depict the drill 

at issue but in no way represent the location or conditions present at the time of the citation. 

According to Duarte, the drill's operating controls are located inside its enclosed cab. In order to 

reach the controls the operator in this case therefore would have had to walk or run 150 to 180 

feet, open the cab door and climb into the cab. Within this framework of evidence I have no 

difficulty in concluding that the cited drill was in operation while not attended within the 

meaning of the cited standard. 

Respondent appears to claim that the cited standard is unconstitutionally vague in that a 

reasonably prudent person familiar with the factual circumstances surrounding the allegedly 

hazardous condition, would not recognize a hazard warranting corrective action within the 

purview of the regulation at issue. Alabama By-Products Corporation, 4 FMSHRC 2128, 2129-

2130 (December 1982). However, even Respondent's superintendent, Kenneth Vanderpool, 

acknowledged, in reference to attending the drill, that the drill operator "wouldn't have no 

business" going as far as even 75 feet from an operating drill. Thus, even if there could be some 

ambiguity in the application of this standard to other factual situations, there is no ambiguity in 

its application to this Respondent on the fact of this case where the credible evidence shows that 

the drill operator was 150 to 180 feet from the drill. 

In reaching this conclusion, I have not disregarded the testimony of drill operator Nathan 

Nickens that he was standing next to the dust collector within eight to ten feet of the drill when 

inspector Duarte "appeared." This apparent conflict with Inspector Duarte's testimony may be 

explained by the likelihood that Duarte observed Nickens before Nickens was aware of Duarte's 

presence. In any event, I find the inspector's testimony to be the more credible in this regard. I 

note on the face of the citation, which would have been prepared contemporaneously with his 

observation of the violation, the inspector reported that the drill operator was in fact measuring 

the holes previously drilled away from the cab. This is consistent with his testimony at hearing. 

While it would have been more helpful if the inspector had reported the 150 to 180 foot distance 

in his contemporaneous notes and had produced those notes at hearing I nevertheless attribute 

greater weight to the inspector's observations corroborated to some extent by his 

contemporaneous citation. 

769 
The Secretary also maintains that the violation was "significant and substantiaL" A 

violation is properly designated as "significant and substantial" if, based on the particular facts 

surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum 

Co., 3 FMSHRC 822,825 (Aprill981). 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 is significant 

and substantial under National Gypsum the Secretary must prove: (I) 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. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 

1988), aff'g 9 FMSHRC 2015,2021 (December 1987) (approving Mathies 

criteria). 

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 (US. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)), and also that the 

likelihood of injury be evaluated in terms of continued normal mining operations. US. Steel 

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

(January 1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17 (June 1991). 

On the facts of this case I do not find the Secretary has met the third element of the 

Mathies formula. Duarte testified that he was concerned about the hazards of the drill toppling 

over the edge of the 38 foot highwall onto the front end loader working below. According to 

Duarte, there were two ways this could happen . . First, he maintained that if the drill steel hangs 

in the hole, the drill"might possibly" jerk from the vibration and rotate over the edge of the 

highwall. However, Duarte had no specific anecdotal evidence of such an event and the 

Secretary failed to establish that he had the necessary qualifications to calculate the forces 

necessary to move this multi-ton drill sufficient to rotate it over the edge of the highwall. Clearly 

such a conclusion could only be reached based upon sophisticated computations and an 

understanding of the principles of physics. Duarte's qualifications in this regard were not 

established. Without having either specific anecdotal evidence or the expertise necessary for 

making the requisite computations, I can give but little weight to the inspector's testimony. In 

addition, Hoover safety director, Jeiry Rogers, testified that even if the drill steel would hang up, 

it would not produce sufficient force to rotate a several-ton drill. 

770 
The second hazard Duarte described related to an incident wherein the ground on the 

bench gave way and the drill operator, who was in the cab of the drill, was killed when the drill 

toppled over the highwall. The Secretary 's position in this regard is irrational, however, since 

non-compliance with her reading of the standard would place the drill operator in a safer position 

outside of the cab. In the case of the illustrated fatality, compliance with the standard would 

likely place the drill operator in a hazardous position inside the cab. 

The Secretary also cites testimony of Respondent's witnesses to establish the gravity of 

the violation. In particular, she cites the testimony of Respondent's witnesses that an unattended 

drill can blow a hydraulic hose causing failure of the hydraulic system or causing the drill motor 

to burn out. However, the Secretary failed to note that the same witness doubted "very seriously" 

that a fire would result if the motor became overheated because there were "gauges on there that 

would cause it to shut down." Considering the absence of credible evidence to support her 

findings I must conclude that the Secretary has failed to sustain her burden of proving that the 

violation was "significant and substantial" or of significant gravity. 

The Secretary has failed to present evidence or argument regarding negligence and the 

size of the operator, two other criteria under section llO(i) of the Act. Examination of the 

operator's prior history of violations (Gov. Exh. No.2) does not show a serious pattern or any 

prior violation of the standard at issue herein. The violation was abated, according to the 

citation, when the drill operator returned to the drilJ cab. Under the circumstances, I find that a 

civil penalty of $25.00, is appropriate for the violation at issue. 

ORDER 

Citation No. 4898682 is AFFIRMED and Hoover Incorporated is directed to pay a civil 

penalty of$25.00, within 30 days ofthe date ofthis decision. 

strative Law Ju ge 

771 
Distribution: 

Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd., 

Suite B-201, Nashville, 1N 37215-2862 (Certified Mail) 

Granville S.R. Bouldin, Jr., Esq., Bouldin & Bouldin, 122 North Church Street, P.O. Box 811, 

Murfreesboro, 1N 37133-0811 (Certified Mail) 

Mr. Jerry Rogers, Safety Superintend.ent, Hoover Incorporated, P.O. Box 1700, LaVergne, 1N 

37086 (Certified Mail) 

\mea 

772 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.JUL 2 7 1996 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEV A 98-27 

A. C. No. 46-01433-04242 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent Loveridge No. 22 Mine 

DECISION 

Appearances: Lynn A. Workley, Conference & Litigation Representative, U.S. Dept. 

of Labor, Morgantown. West Virginia, on behalf of Petitioner; 

Elizabeth S. Chamberlin, Esq., Consol Inc., Pittsburgh, Pennsylvania, 

on behalf of Respondent. 

Before: Judge Melick 

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor 

against the Consolidation Coal Company (Consol) pursuant to Section I OS( d) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. Section 801 et. seq., the "Act," seeking a civil 

penalty of$596.00, for one violation, on September 10, 1997, of30 C.F.R. Section 

75.323(b)(2)(ii). The general issue before me is whether Consol violated the cited standard as 

alleged, and if so, what is the appropriate civil penalty to be asse_ssed considering the criteria 

under Section 11 O(i) of the Act. 

The citation at bar, Citation No. 3492989, as amended, alleges as follows: 

In the number two bleeder entry off the number one entry of 4-Left, there 

is an accUIIiulation of methane.· The No. 2 bleeder entry starts at station number 

99 block of the 4-Left number one entry. When tested on the right side of the 

continuous miner, 1.5% methane was found in a measurement greater than 12 

inches from the roof, face and ribs. The section foreman was notified and Mr. 

Pichardo did no [sic] remove the electrica1 power from the equipment in the 

affected area in a timely manner. 

The cited standard, 30 C.F.R. Section 75.323(b)(2), provides in relevant part as follows: 

(2) When 1.5 percent or more methane is present in a working place or an 

773 
-

intake air course, including an air course in which a belt conveyor is located, or in 

an area where mechanized mining equipment is being installed or removed -

(i) Everyone except those persons referred to in§ 104(c) ofthe Act shall 

be withdrawn from the affected area; and 

(ii) ... electrically powered equipment in the affected area shall be 

disconnected at the power source. 

Thomas May, Sr., is an experienced coal mine inspector for the Mine Safety and Health 

Administration (MSHA) with additional industry experience and two years of college education. 

On September 1, 1997, at about 8 a.m., he began his inspection at the Loveridge No. 22 Mine, 

accompanied by Consol safety inspector Richard Moats and representative of miners, Carol 

Liston. Later in the morning as they approached the No.2 entry, the mining crew withdrew the 

continuous miner and began shutting down for lunch. May proceeded toward the face to check 

the airflow and test for methane. To perform these tests in a tight space he had to move the 

ventilation tubing. May detected 1 .5% methane, again repositioned the ventilation tubing and 

again detected 1.5% methane. May then informed Moats that he had encountered t .5% methane. 

According to May, Moats then proceeded to the face and performed his own methane 

check. He extended the ventilation tube and held it on his shoulder. May testified that he was 

unable to see precisely where Moats obtained his methane reading because his view was 

obstructed. He later testified that Moat's reading was not as close to the face as his own. 

According to May, Moats then momentarily left the area and returned, telling Liston that he 

needed a ventilation tube at the face. Sometime during the course of these events, Moats told 

May that he had obtained a 1.3% methane reading. Moats then appeared to cut the power on the 

miner. May saw however, that a light was still activated on the miner and told Moats that the 

power should be cut at the power center. Moats purportedly responded that Pichardo, the section 

foreman, would take care of it. Pichardo then appeared, took his own methane test and told May 

that he had obtained a . 9% methane reading. May maintains that he told Pichardo that he had 

obtained a 1.5% reading and that he needed to cut the power at the power center. Pichardo then 

immediately walked to the power center and cut the power. 

Within this framework of credible evidence it is clear that there was a violation of the 

cited standard when 1.5% methane was discovered by Inspector May at the face, an agent of the 

operator was notified of this and yet power at the power center was not cut for a period of 

approximately 15 minutes. While the violation may indeed have been caused by the inspector 

himself when admittedly moving the ventilation tubing at the face, it is now well-established that 

operators are liable for violations of the Act without regard to fault. Sewell Coal Co. v. 

FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982); Allied Products Co., v. FMSHRC, 666 F.2d 890 

(Sth Cir. 1982); Fort Scott Fertilizer-Culler, Inc., 17 FMSHRC 1112 (July 1995). 

774 
In reaching these conclusions, I have not disregarded the testimony ofConsol's 

witnesses_, Moats, Pichardo and Richardson. Their testimony does not, however, negate the 

existence of the violation. For example, Moats admits that he did not cut the power at the power 

center when informed of the existence of 1.5% methane and only attempted to cut the power to 

the continuous miner. However, Moats claims he tried to tell Pichardo to remove the power at 

the power center but Pichardo, who is hard of hearing, apparently did not hear him. Moats also 

promptly attempted to remove the methane by having additional tubing installed and, according 

to Moats, the methane level was thereby reduced to 1.1 %·within one to two minutes. The 

testimony of Pichardo and Richardson also mitigates operator negligence and gravity. After 

being informed of a potential problem, Pichardo checked the left side of the miner for methane 

and obtained only a . 9% reading. Pichardo also noted that accumulations of methane would 

likely be on the left side since the ventilation tubing pulls the air out of the right side. In 

addition, Pichardo testified that when Inspector May told him that he had obtained a 1.5% 

methane reading afld wanted the power off, he in fact cut the power within two minutes - - the 

time it took him to walk to the power center. Assistant Mine Superintendent Richardson 

corroborated that once Richardson told Pichardo that he needed to remove the power at the 

power center he did so. 

In evaluating the evidence I conclude that the Secretary's evidence regarding the amount 

9ftime between the inspector's notification of the violative condition to the operator's agent, 

Richard Moats, and the action by Pichardo to cut the power at the power center is the more 

credible. The inspector estimated that time to have been about 15 minutes. (Gov. Exh. No. 2, 

Pg. 5). l do, however, credit the operator's testimony that the inspector had adjusted the 

ventilation tubing before taking his methane tests, and that their own readings were below 1.5%. 

Thus, Consol officials could reasonably have believed the inspector's readings were not valid 

and that the methane level was actually below the 1.5% threshold set forth in the cited standard. 

Their prompt efforts to obtain additional ventilation tubing to clear the methane should also be 

considered in evaluating negligence. Nevertheless, it is clear that once methane at 1.5 % was 

found and Consol was informed of this through its agent Richard Moats, the power should have 

immediately been cut at its source. 

The Secretary also maintains that the violation was "significant and substantial" and of 

high gravity. A violation is properly designated as "significant and substantial" if, based on·the 

particular facts surrounding that violation, there exists a.reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature. Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ). In Mathies Coal Co., 6 FMSHRC 

1,3-4 (January 1984), the Commission explained: 

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

and substantial under National Gypsum the Secretary must prove: (1) the 

Wlderlying 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 

775 
( 4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), ~ 9 

FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria). 

The third element of the Mathies formula requires that the Secretary establish a 

reasonable likelihood tl;lat the hazard contributed to will result in an event in which there is an 

injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)), and also that the 

likelihood of injury be evaluated in terms of continued normal mining operations. U.S. Steel 

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

(January 1986) and Southern Ohio Coal Co., 13 FMSHRC 912, 916-17 (June 1991). 

On this issue, as with all issues, I am constrained by the evidence of record. In this 

regard, I find the record evidence inadequate to establish the third element of the Mathies test. 

Critical parts of the inspector's testimony in this regard were ambiguous and somewhat 

confusing. Moreover, his use of the terms "possibly" and "possibilities" where the standard is 

"reasonable likelihood" makes it impossible to meet the third element. See Amax Coal 

Company, 18 FMSHRC 1355 (August 1996). His testimony on this issue was in part as follows: 

The fact of having the methane accumulation in the face, the auxiliary fan 

for one is still running. In changing the tube, when you increase the distance from 

the face to the ventilation device from the end of the tubing, you also increase the 

possibility of methane accumulation. You use the spad gun which can create a 

spark. You're working with tubing that has dust in it. You're dragging the 

tubing, carrying it up there, you get coal, rock inside the tubing. When you put it 

on the existing tubing, that sucks it back into the fan. Possibilities of spark from 

the fan itself. · 

Considering all ofthe criteria under Section 110(i) ofthe Act, I find that a civil penalty of 

$100.00, is appropriate. 

ORDER 

Citation No. 3492989 is AFFIRMED without a "significant and substantial" designation 

and the Consolidation Coal Company is directed to p~y a civil JX:nalty of $100.00 within 30 days 

of the date of this decision. 

i 

I 

776 
Distribution: 

Lynn A. Workley, Conference & Litigation Representative, U.S. Dept. of Labor, Mine Safety 

and Health Administration (MSHA), 5012 Mountaineer Mall, Morgantown, WV 26505 

(Certified Mail) 

Elizabeth S. Chamberlin, Esq., Consol Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, 

PA 15241-1421 (Certified Mail) 

\mea 

777 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730KSTREET, N.W., 6TMFLOOR 

WASIDNGTON, D. C. 20006-3868 

BRAUNTEX MATERIALS, 

INCORPORATED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINlSTRA TION, (MSHA) 

Respondent 

July 30,. 1998 

CONTESTPROCEEDUNGS 

Docket No. CENT 98-154-RM 

Citation No. 4444397; 9/5/97 

Docket No. CENT 98-155-RM 

Citation No. 4444398; 11114/97 

Docket No. CENT 98-156-RM 

Citation No. 4109013; 11114/97 

Brauntex Materials 

Mine ID 41-02743 

ORDER OF DISMISSAL 

Before: Judge Merlin 

The issue-presented for determination is whether these cases were timely filed. 

The cases were received on June 9, 1998, by the Mine Safety and Health Administration 

and forwarded to this Commission where they were received on June 10, 1998. 

Citation No. 4444397 (Docket No. CENT 98-154 RM) was issued on September 5, 

1997, under section 104(a) of the Mine Act, 30 U.S.C. § 814(a). It was modified on 

November 14, 1997, and November 26, 1997. An order oftermination was issued on 

April 12, 1998. 

Citation No. 4444398 (Docket No. CENT 98-155-RM) was issued on November 14, 

1997, under section 104(d)(l), 30 U.S.C. § 814(d)(l). It was modified on November 21, 

November 26, December 4 and December 18, 1997. An order of termination was issued on 

April12, 1998. 

Citation No. 4109013 (Docket No. CENT 98-156-RM) was also issued on November 14, · · 

1997, under section 104(d)(1), supra. It was modified on November 21, November 26 and 

December 18, 1997. An order oftermination was issued on April12, 1998. 

778 
Section 105(d) of the Act, 30 U.S.C. § 815(d), provides. that within 30 days of the receipt 

thereof an operator may contest the issuance or modification of an order or citation. 

The operator alleges that it received the termination orders on May 12, 1998, and argues 

that a termination is the same as a modification for purposes of deciding timeliness. Under the 

operator•s approach, its filing on June 9, 1998, fell on the 281h day. 

The termination orders dated April12, 1998, contain the name of the individual upon 

whom service was made. I take judicial notice that service is customarily made on the day the 

citation or order is issued. Even if service had been by mail, it would not have taken 30 days, 

absent some unusual circumstance. The operator has submitted nothing to support its claim that 

it did not receive orders of the termination until May 12, 1998, and I, therefore reject it. On this 

basis, I find these cases were untimely filed. 

Moreover, even if the receipt date for the termination orders is accepted as May 12, the 

operator cannot prevail. The operator attempts to treat terminations and modifications as though 

they are interchangeable and in this way have the 30 days begin to run upon receipt of the 

terminations. However, the Act makes clear that they are not the same. Section lOS( d) which as 

already noted, gives operators the opportunity to contest citations/orders and modifications of 

them, also gives a miner and miner representative the opportunity to contest the issuance, 

modification or termination of an order. If modifications and terminations were the same, there 

would be no need to separately identify terminations. Clearly, the Act does not give operators 

the right to challenge terminations, whereas miners and their representatives are given that right. 

Commission regulations follow the distinction between modifications and terminations. 

29 C.F.R. § 2700.20. 

Commission case law also makes clear that modifications and terminations are separate 

and -distinct actions. In Nacco Mining Company, 11 FMSHRC 1231, (July 1989), the Commission expressly stated that a modification differs from a termination, explaining that termination 

occurs when the Secretary determines that the cited condition has been abated. 11 FMSHRC at 

1236. The Commission further said that depending on the nature of a modification, the substantive effect of the underlying enforcement action may or may not be changed, but that the 

enforcement action remains in effect as modified. Id. Subsequently, in Wyoming Fuel Com-

~. 14 FMSHRC 1282 (Augtist 1992), the Commission reiterated that termination was merely 

an administrative action used to indicate to an operator that it had successfully abated the cited 

violation and was no longer subject to a potential withdrawal order for failure to abate under 

section 104(b), 30 U.S.C. § 814(b). 14 FMSHRC at 1288. 

In light of the foregoing, I conclude that the date of termination is not the date from 

which the 30 day contest begins to run. 

779 
It is well established that contests by operators of citations and orders must be brought 

within 30 days or be dismissed. Island Creek Coal Co. v. Mine Workers, 1 FMSHRC 989 

{August 1979); Alexander Brothers, 1 MSHC 1760 (1979); Old Ben Coal Co., 1 MSHC 1330 

(197 5); Consolidation Coal Company, 1 MSHC 1029 (1972); M.A. Walker Co .. Inc., 19 

FMSHRC 897 (May 1997); Asarco. Incorporated, 16 FMSHRC 1328 (June 1994); C and S Coal 

Company, 16 FMSHRC 633 (March 1994); Diablo Coal Company, 15 FMSHRC 1605 (August 

1993); Costain Coal Inc., 14 FMSHRC 1388 (August 1992); Prestige Coal Co., 13 FMSHRC 93 

(January 1991); Big Horn Calcium, 12 FMSHRC 463 (March 1990); Rivco Dredging Comoration, 10 FMSHRC 889 {July 1988); Allentown Cement Company. Inc., 8 FMSHRC 1513 

(October 1986); Industrial Resources. Inc., 7 FMSHRC 416 (March 1985); Amax Chemical 

~. 4 FMSHRC 1161 (June 1982); See also, ICI Explosives USA. Inc., 16 FMSHRC 1794 

(August 1994). 

Accordingly, regardless of which termination date is used, these cases are untimely filed. 

On this ground also they must be dismissed. 

In light of the foregoing, it is ORDERED that these cases are DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Daniel Diaz, Jr., Esq., Plunkett & Gibson, Inc., P. 0. Box BH002, San Antonio, TX 78201 

Stephen E. Irving, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX 75202 

/gl 

] 8 Q 'tru.s. GOVERME.NT PRINTING OFFICE: 1,. -43lrm/M407