MAY 1999 

COMMISSION ORDERS 

05-17-99 Agronics Incorporated CENT 99-72-M Pg.475 

05-17-99 Cecil Kilmer Flagstone PENN 99-16-M Pg.480 

05-24-99 Knack's Building Supplies CENT98-1-M Pg. 483 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-06-99 Sec. Labor on behalf of Bennard Smith v. 

Jim Walter Resources, Inc. SE 98-184-D Pg.487 

05-06-99 Sam Puglia Excavating YORK 98-59-M Pg.489 

05-10-99 Spa City Gravel CENT 98-240-M Pg.490 

05-12-99 Jim Walter Resources, Inc. SE 99-6-R Pg.494 

05-19-99 Drummond Company, Inc. SE 99-39 Pg.504 

05-24-99 Getchell Gold Corporation WEST 99-162-RM Pg. 507 

05-27-99 Sec. Labor on behalf of Rodney Stephens v. 

Cyprus Plateau Mining Corp. WEST 99-262-D Pg.519 

05-28-99 Bear Ridge Mining, Inc. VA 98-68 Pg. 523 

ADMINISTRATIVE LAW JUDGE ORDERS 

05-03-99 Phoenix Associates Land Syndicate CENT 99-148-M Pg.529 

05-05-99 ANR Coal Company LLC VA 98-39 Pg.531 

05-07-99 Fort Worth Crushed Stone Inc. CENT 99-162-M Pg. 542 

05-12-99 Rayne Energy Incorporated PENN 99-147 Pg. 544 

05-14-99 Sec. Labor on behalf of Allen Hamilton v. 

Rondy's Inc. WEST 99-107-DM Pg. 545 

05-20-99 James Milam v. Whitby Electric Inc. WEV A 99-34-D Pg.548 

i 
'I 
MAY 1999 

There were no cases filed in which review was granted during the month of May: 

Review was Denied in the following case during the month of May: 

Secretary of Labor, MSHA v. Knock's Building Supplies, Docket No. CENT 98-1-M. 

(Judge Hodgdon, May 29, 1999) 

ii 

COMMISSION ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

AGRONICS INCORPORATED 

1730 K STREET N.W., 6TH FLOOR 

WASHINGTON, O.C. 20006 

May 17, 1999 

Docket No. CENT 99-72-M 

A.C. No. 29-00785-05528 

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

ORDER 

BY: Riley, Verheggen, and Beatty, Commissioners 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On April 7, 1999, Chief Administrative Law 

Judge Paul Merlin issued an Order of Default to Agronics Inc. ("Agronics") for failing to answer 

the petition for assessment of penalty filed by the Secretary of Labor on December 31 , 1998, or 

the judge's Order to Respondent to Show Cause issued on February 4, 1999. The judge assessed 

the civil penalty of $891.00 proposed by the Secretary. 

On April 26, 1999, the Commission received a letter from Agronics asserting that the 

judge's Order of Default was erroneously served on "Leland B. Taylor, Chairman, Agronics Inc." 

rather than on "Leland Thomas Taylor, President, Agronics Inc." Mot. at 1. Agronics requests 

that the Order of Default be set aside, denies the violations alleged, challenges the penalty 

amount, and requests various documents and a hearing. Id at 1-2. 

On May 5, 1999, the Commission received the Secretary's opposition to Agronics' 

request to set aside the Order of Default. The Secretary submits that, at the time MSHA issued 

the proposed assessment, "Leland B. Taylor" was the agent designated by Agronics. S. Opp'n at 

2-3. She asserts that Leland B. Taylor was, therefore, an "agent" of Agronics pursuant to section 

3(e) of the Mine Act, 30 U.S.C. § 802(e), and that service upon Leland B. Taylor was sufficient 

to accomplish service on Agronics. Id. at 3. The Secretary also maintains that, "as the judge 

noted in the order of default, ... Agronics received a copy of the show cause order/' and alleges 

that Agronics has provided no valid explanation which would excuse the default. Id 

475 
The judge's jurisdiction in this matter terminated when his decision was issued on 

April 7, 1999. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's procedural 

rules, relief from a judge's decision may be sought by filing a petition for discretionary review 

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

Agronics' letter to be a timely filed petition for discretionary review, which we grant. See, e.g., 

Middle States Resources, Inc., 10 FMSHRC 1130 (Sept. 1988). 

476 
On the basis of the present record, we are unable to evaluate the merits of Agronics' 

position. In the interest of justice, we vacate the default order and remand this matter to the 

judge, who shalJ determine whether relief from default is warranted. See Amber Coal Co., 

11 FMSHRC 131, 132-33 (Feb. 1989). 

J arnes C. Riley, Commissioner 

477 
Chairman Jordan and Commissioner Marks, dissenting: 

We vote to treat Agronics' motion to vacate the judge's default order as a timely filed 

petition for discretionary review, which we would deny. We also vote to deny the motion. 

Marc Lincoln Marks, Commissioner 

478 
Distribution 

Leland Thomas Taylor, President 

Agronics Incorporated 

7100-E 2"d Street, N.W. 

Albuquerque, NM 87107 

Leland B. Taylor, Chairman 

Agronics Incorporated 

6808 Academy Parkway East A-3 

Albuquerque, NM 87109 

Jack Powasnik, 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 & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

479 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CECIL KILMER FLAGSTONE 

1730 K STREET N.W., 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 17, 1999 

Docket No. PENN 99-16-M 

A.C. No. 36-08739-05502 9BK 

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

ORDER 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1994)("Mine Act"). On February 25, 1999, Chief Administrative 

Law Judge Paul Merlin issued an Order of Default to Cecil Kilmer Flagstone ("Kilmer") for 

failing to answer the petition for assessment of penalty filed by the Secretary of Labor on 

November 19, 1998, or the judge's Order to Respondent to Show Cause issued on January 14, 

1999. The judge assessed the civil penalty of $1,200 proposed by the Secretary. 

On April 29, 1999, the Commission received a letter from Kilmer asserting that, on 

December 15, 1998, it had sent a letter answering the Secretary's petition for assessment of 

penalty. Mot. at 1. The December 15 letter, which Kilmer enclosed along with its motion, was 

addressed and sent to the Department of Labor's Regional Solicitor's Office in Geneva, New 

York. The December 15 letter also admits the two alleged violations of mandatory safety 

standards, but contests the amount of the penalty proposed. 

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

February 25, 1999. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's 

procedural rules, relief from a judge's decision may be sought by filing a petition for 

discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. 

§ 2700.70(a). The Commission received Kilmer's letter on April 29, 1999, after the judge's 

default order had become a final decision of the Commission. 

480 
Relief from a final Commission judgment or order is available to a party under Fed. R. 

Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable neglect. F W. 

Contractors, Inc., 17 FMSHRC 247, 248 (f\1ar. 1995); see 29 C.F.R. § 2700.l(b) (Federal Rules 

of Civil Procedure apply "so far as practicable" in the absence of applicable Commission rules). 

On the basis of the present record, we are unable to evaluate the merits ofKilmer's position. In 

the interest of justice, we reopen the proceeding, treat Kilmer's letter as a late-filed petition for 

discretionary review requesting relief from a final Commission decision, and excuse its late 

filing. See F W. Contractors, 17 FMSHRC at 248. We remand this matter to the judge, who 

shall determine whether final relief from default is warranted. See id. 

Marc Lincoln Marks, Commissioner 

481 
Distribution 

Cecil Kilmer, Owner 

Cecil Kilmer Flagstone 

RR #1, Box 1130 

Nicholson, PA 18446 

Troy Leitzel, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Gateway Bldg., Rm. 14480 

3535 Market St. 

Philadelphia, PA 19104 

W. Christian Schumann, 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 & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

482 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

KNOCK'S BUILDING SUPPLIES 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 24, 1999 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 98-1-M 

A.C. No. 13-01916-05505 

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

ORDER 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On April 1, 1999, the Commission received 

from Knock's Building Supplies ("KBS") a request to reopen a decision issued by 

Administrative Law Judge T. Todd Hodgdon on May 29, 1998. In its request for relief, KBS 

demands a jury trial and alleges that "a prejudicial error of procedure was committed." K. Mot. 

The operator also claims to have more knowledge of safety than MSHA's inspectors, and 

submits that it has never had a serious injury. Id. In opposition to KBS's request, the Secretary 

argues that the operator's request does not establish grounds upon which the Commission could 

grant relief under Fed. R. Civ. P. 60(b)(l) or 60(b)(6). S. Opp'n at 4-5. 

The judge's jurisdiction over these cases terminated when his decision was issued on May 

29. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by filing a petition for 

discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 

2700.70(a). If the Commission does not direct review within 40 days of a decision's issuance, it 

becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l). 

The Commission has entertained late-filed petitions for discretionary review where good 

cause has been shown. See, e.g., De Atley Co., 18 FMSHRC 491, 492 (Apr. 1996) (excusing late 

filing of petition for discretionary review where operator's predecessor failed to inform operator 

of unconsummated settlement agreement). Typically, in such cases, a default order has been 

entered against a party, depriving the party of any opportunity to defend against the enforcement 

action taken by the Secretary. Relief from a final Commission judgment or order is available to a 

party under Fed. R. Civ. P. 60(b)(l) in circumstances such as mistake, inadvertence, or excusable 

483 
neglect. 29 C.F .R. § 2700 .1 (b) (Federal Rules of Civil Procedure apply "so far as practicable" in 

the absence of applicable Commission rules); see, e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 

782 (May 1991 ). Rule 60(b) motions are committed to the sound discretion of the judicial 

tribunal in which relief is sought. Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C. Cir. 

1987), cert. denied, 484 U.S. 1027 (1988); see Green Coal Co., 18 FMSHRC 1594, 1595 (Sept. 

1996). 

Here, KBS has availed itself of the opportunity to defend the case before a judge. The 

operator offers no explanation for its failure to timely submit a petition for discretionary review. 

Thus, KBS has failed to set forth grounds establishing that Fed. R. Civ. P. 60(b) relief is 

appropriate. See Tanglewood Energy, Inc., 17 FMSHRC 1105, 1107 (July 1995) (denying 

request to reopen final Commission order where operator failed to set forth grounds justifying 

relief); Brown Bros. Sand Co., 15 FMSHRC 203, 204 (Feb. 1993) (rejecting late-filed petition 

for discretionary review of judge's decision where stated rationale did not meet the criteria of 

Fed. R. Civ. P. 60(b)). Accordingly, KBS's request for relief from the final Commission 

decision is denied. 

484 
For the foregoing reasons, the operator's motion is denied. 

~an, 

M /:~ Chai~ 

Marc Lincoln Marks, Commissioner 

James C. Riley, Commissioner 

485 
Distribution 

Markley Knock 

Knock•s Building Supplies 

302 North Side 

Parkersburg, IA 50665 

Jack Powasnik, 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 & Health Review Commission 

Office of Administrative Law Judges 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

486 
ADMINISTRATIVE LAW JUDGE DECISIONS 
.. . 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of BENNARD SMITH, 

Complainant 

V. 

May 6, 1999 

JIM WALTER RESOURCES IN CORPORA TED, 

Respondent 

DECISION 

DISCRIMINATION PROCEEDING 

Docket No. SE 98-184-D 

BIRM CD 98-02 

No. 3 Mine 

Mine ID No. 01-00758 

Appearances: William Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, 

Birmingham, Alabama, on behalf of Complainant; 

David M. Smith, Esq., and James P. Naftel, Esq., Maynard, Cooper & 

Gale, P.C., Birmingham, Alabama, and Guy W. Hensley, Esq., Jim Walter 

Resources, Inc., on behalf of Respondent. 

Before: Judge Melick 

This case is before me upon a complaint of discrimination and petition for assessment of 

civil penalty under Sections 105(c) and 105(d) of the Federal Mine Safety and Health Act of 

1977 (the Act). Following hearings a decision on the merits was issued on March 23, 1999, 

granting the Secretary's Complaint in part. The parties have now filed a motion to approve a 

settlement agreement providing a reduction in civil penalty to $1,500.00 and damages to the 

individual Complainant, Bennard Smith. Mr. Smith has agreed to the proposed amount of 

damages. I have considered the representations and documentation submitted in this case 

including the entire trial record 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 damages of$2,789.00 to Bennard Smith and a civil penalty of 

$1,500.00 to the Secretary within 40 days of this order. 

487 
Distribution: 

William Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, Chambers Building, 

Suite 150, Highpoint Office Center, 100 Centerview Drive, Birmingham, AL 35216 

(Certified Mail) 

Bennard Smith, 612 North 13•h Street, Bessemer, AL 35023 (Certified Mail) 

David M. Smith, Esq., Michael E. Turner, Esq., Maynard, Cooper-& Gale, P.C., 1901 Sixth 

A venue North, 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203-2602 

(Certified Mail) 

\mca 

488 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SAM PUGLIA EXCAVATING, 

Respondent 

May 6, 1999 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 98-59-M 

A.C. No. 30-02566-05517 

Granby Pit 

DECISION APPROVING SETTLEMENT 

Before: Judge Bulluck 

This case is before me upon a petition for assessment of civil penalty under Section 

105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). Petitioner has filed a 

motion to approve a settlement agreement and to dismiss th.is case. A reduction in penalty from 

$4,144.00 to $580.00 is proposed. The citations initial assessments, and the proposed settlement 

amounts are as follows: 

Citation No. 

7707680 

7707682 

Initial Assessment 

$2,072.00 

$2,072.00 

Total $4, 144.00 

Proposed Settlement 

$290.00 

$290.00 

$580.00 

I have considered the representations and documentation submitted in this case, and I 

conclude that the proffered settlement is appropriate under the criteria set forth in section 11 O(i) 

of the Act. 

WHEREFORE, the motion for approval of settlement is GRANTED, it is ORDERED 

that Order Nos. 7707714 and 7707715 are VACATED, and that Respondent pay a penalty of 

$580 in three installments, in accordance with the payment schedule set forth in the settlement 

agreement. (} . , . I{!&, ~R. Bulluck {a.(, 

Administrative Law Judge 

Distribution: 

Suzanne Demi trio, Esq., Office of the Solicitor, U.S. Department of Labor, Room 707, 

New York, New York 10014 

Mr. Sam Puglia, Sam Puglia Excavating, 1900 State Rt. 3, Fulton, NY 13069 

489 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 10, 1999 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 98-240-M 

A. C. No. 03-01783-05502 

v. 

SP A CITY GRAVEL, 

Respondent 

Docket No. CENT 98-276-M 

A C. No. 03-01783-05503 

Appearances: 

Before: 

Spa City Gravel Mine 

DECISION 

Stephen E. Irving, Esq., Office of the Solicitor, U.S. Dept. of Labor, 

Dallas, Texas, on behalf of the Petitioner; 

Pamela D. Walker, Esq., Little Rock, Arkansas, on behalf of the 

Respondent. 

Judge Melick 

These cases are before me upon Petitions for Civil Penalty filed by the Secretary of Labor 

against Spa City Gravel (Spa City) pursuant to Section 105(d) of the Federal Mine Safety and 

Heath Act of 1977, 30 U.S.C. § 801 et seq., the "Act," alleging fourteen violations of mandatory 

standards and seeking civil penalties of $2,479.00 for those violations. The general issue before 

me is whether Spa City committed the violations as alleged and, if so, what is the appropriate 

civil penalty to be assessed considering the criteria under Section 1 J O(i) of the Act. 

At hearing the Secretary, exercising her unilateral authority, vacated Citation Nos. 

7865443, 7865449 and 7865457. The parties also agreed to a settlement of Citation Nos. 

7865444, 7865448, 7865450, 7865451, 7865453, 7865454, 7865455, 7865456 and 7865458, 

proposing a reduction in total penalties for these violations to $1, 176.00. The proferred 

settlement is acceptable under the criteria set forth in Section 11 O(i) of the Act and an order 

directing payment of that amount will be incorporated in this decision. 

Two citations remain at issue. Citation No. 7865445 alleges a "significant and 

substantial" violation of the standard at 30 C.F.R. § 56.14105 and charges in relevant part as 

follows: 

The Cat 950 front-end loader (serial #73J l 0976) was observed parked at 

the plant (truck loading area) with the engine running, no operator inside, loader 

490 
bucket approximately 18 inches off the ground, park brake not set, wheels not 

blocked, and the mechanic had his right arm inserted into the oscillating section of 

the loader up to his shoulder trying to repair the provided back-up alarm while 

customer trucks were being loaded with the Cat 977 crawler loader. The customer 

trucks and Cat 977 crawler were both in the same area as the stopped Cat 950 

front-end loader. Not having the park brake set, wheels blocked or the power off 

allows for movement of the Cat 950 loader (from being bumped by other mobile 

equipment or just rolling) which could result in serious injury to the mechanic's 

arm or him being run-over .... 

The cited standard, 30 C.F.R. 56.14105, provides as follows: 

Repairs or maintenance of machinery or equipment shall be performed 

only after the power is off and the machinery or equipment blocked against 

hazardous motion. Machinery or equipment motion or activation is permitted to 

the extent that adjustments or testing cannot be performed without motion or 

activation, provided that persons are effectively protected from hazardous motion. 

Donald Ratliff, an inspector for the Department of Labor's Mine Safety and Health 

Administration (MSHA) testified without contradiction that the subject Cat 950 front-end loader 

was parked at the truck loading area with its engine running, with no operator inside, with the 

loader bucket raised and with its wheels not blocked. In addition, the mechanic had his arm 

inserted up to his shoulder into the oscillating section of the loader trying to repair its backup 

alarm. Inspector Ratliff's testimony that customer trucks were passing behind the loader only 10 

to 12 feet away is also undisputed. 

The subject mechanic did not testify. However, Spa City owner George Clark testified 

that he believed the parking brake on the loader must have been engaged because after the 

citation was issued he saw the front-end loader being moved and concluded that you have to 

release the parking brake to move the loader. Clark also testified, in essence, that it would be too 

time consuming to block all eight wheels on the loader before working on it. 

Inspector Ratliff credibly testified however that Clark was not present when he cited the 

loader and that he, Ratliff, observed the mechanic engage the parking brake only after the loader 

was cited Ratliff testified that after the loader was cited he proceeded to the mine office where 

Clark was located and told Clark of the violation. It therefore appears that Clark's belief that the 

brake had been engaged before it was cited was based only upon observations made at a later 

time, i.e., subsequent to the issuance of the citation after the mechanic was told to engage the 

brake and had thereupon actually engaged the brake. I therefore find that, indeed, the parking 

brake on the cited loader had not been engaged as alleged in the citation. 

Under the circumstances the violation is proven as charged. In reaching this conclusion I 

have not disregarded Mr. Clark's testimony that it would have been too time consuming to block 

491 
all the wheels of the loader. While this concern is no defense to the violation I note in any event 

that Inspector Ratliff t~stified that only one wheel need be blocked to meet the requirements of 

the cited standard. 

The violation is also "significant and substantial." A violation is "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 safety standard is 

significant and substantial under National Gypsum the Secretary must prove: 

(1) the underlying violation of a mandatory safety standard, (2) a discrete safety 

hazard -- that is, a measure of danger to safety -- contributed to by the violation, 

(3) a reasonable likelihood that the hazard contributed to will result in an injury, 

and ( 4) a reasonable likelihood that the injury in question will be of a reasonably 

serious nature. 

See also Austin Power Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), affg 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 i834, 1836 (August 1984)). The likelihood of such 

injury must be evaluated in terms of continued normal mining operations without any 

asswnptions as to abatement. 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). In this regard I accept Inspector Ratliff's undisputed 

testimony that the actions of the mechanic, in placing his arm into the oscillating section of the 

cited loader under the noted conditions were so serious as to constitute an imminent danger. 

Since mine owner George Clark himself effectively acknowledged that at least the parking brake 

should have been engaged on the subject loader while the mechanic was performing work in the 

area of the oscillating section, I find that the violation was also the result of operator negligence. 

However, considering the minimal history of only one prior violation at this mine and the small 

size of the operator (only two workers) I find that a civil penalty of $300.00, is appropriate. 

Citation No. 7865452 alleges a violation of the standard at 30 C.F.R. § 56.15001 and 

charges as follows: 

No stretcher or adequate first aid supplies were being provided at the mine 

site. Some Band-Aids, cold pack, and other small idem [sic] were in a first aid 

box but nothing was provided to stop or restrict blood flow in the event of a 

serious cut to an employee. A stretcher is necessary in the event an injured person 

492 
is required to be moved to prevent the employee froll) receiving more injuries. 

Failure to properly treat injured employees could result in a minor injury 

becoming worse. 

The cited standard, 30 C.F.R. § 56.15001 provides in relevant part that "[a]dequate firstaid materials, including stretchers ... shall be provided at places convenient to all working 

areas." 

It is undisputed that no stretcher was provided at the mine site as alleged. It is also 

undisputed, however, that during an earlier inspection at the mine, another MSHA inspector had 

informed Mr. Clark that, in light of the fact that his mine was near an ambulance facility and that 

it was essentially only a two-man operation, there was no need for Clark to provide a stretcher. 

I do not therefore find the operator chargeable with negligence. I note that the Secretary also 

acknowledges that the violation was of low gravity in that she represents that an injury was 

unlikely. I further note that although a "Section 104(b )" order was issued for the alleged failure 

of the operator to timely abate the violation, it is undisputed that when that order was issued, 

nearly a month after the related citation, Clark had already placed an order for a stretcher and was 

awaiting delivery. Thus, although the order itself is not at issue, for purposes of assessing a civil 

penalty I credit the operator with a good faith effort to abate the violation. I again note the 

minimal history of violations and small size of the operator in concluding that a penalty of 

$25.00 is appropriate. 

ORDER 

Citation Nos. 7865443, 7865449 and 7865457 have been vacated by unilateral decision 

of the Secretary. Charging document Nos. 7865444, 7865448, 7865450, 7865451, 7865452, 

7865453, 7865454, 7865455, 7865456, 7865458 and 7865445 are hereby affirmed and Spa City 

Gravel is hereby directed to pay civil penalties of $1,501.00, for the violations therein within 40 

days of the date of this decision. 

Judge 

Distribution: 

Stephen E. Irving, Esq., Office of the Solicitor, U.S. Dept. of Labor, 525 South Griffin Street, 

Suite 501, Dallas, TX 75202 (Certified Mail) 

Pamela D. Walker, Esq., 2115 South Broadway, Little Rock, AR 72206 (Certified and First 

Class Mail) 

493 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JIM WALTER RESOURCES, 

IN CORPORA TED, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JIM WALTER RESOURCES 

IN CORPORA TED, 

Respondent 

May 12, 1999 

CONTEST PROCEEDINGS 

Docket No. SE 99-6-R 

Citation No. 7665505; 9/23/98 

Docket No. SE 99-7-R 

Citation No. 7665506; 9/23/98 

Docket No. SE 99-8-R 

Citation No. 7665507; 9/23/98 

Docket No. SE 99-9-R 

Citation No. 7665512; 9/24/98 

Docket No. SE 99-10-R 

Citation No. 7665512; 9/24/98 

Central Supply Shop 

Mine ID 01-02515 

CIVIL PENAL TY PROCEEDING 

Docket No. SE 99-66 

A.C. No. 01-02515-03521 

Central Shop 

SUMMARY DECISION 

Before: Judge Feldman 

These contest proceedings are before me for summary disposition based on the parties' 

joint stipulations of material facts that serve as the basis for their motions for summary decision. 

These matters concern whether Jim Walter Resources Inc. 's (JWR's) Central Machine Shop 

(Central Shop) and/or Central Supply Shop (Central Supply) are "mines" subject to the 

494 
jurisdiction of the Federal Mine Safety and Health Act of 1977 (the Mine Act). 

Section 3(h) of the Act defines "coal or other mine" as follows: 

(1) "[C]oal or other mine" means ... (C) lands, excavations, underground 

passageways, shafts, slopes, tunnels and workings, structures,facilities, 

equipment, machines, tools, or other property including impoundmentS, 

retention dams, and tailings ponds, on the surface or underground, used in, or to 

be used in, or resulting from, the work of extracting such minerals from their 

natural deposits in nonliquid form, or in liquid form, with workers underground, 

or used in, or to be used in, the milling of such minerals, or, the work of 

preparing coal or other minerals and includes custom coal preparation facilities. 

(Emphasis added). 

Simply stated, JWR's Central Shop and Central Supply are not located within any 

specific mine boundary. Rather, they are located in the vicinity of, and support, JWR's mining 

operations at its Nos. 3, 4, 5 and 7 Mines. Central Shop provides maintenance and repair 

services to the machinery used at the JWR mines and its preparation plants. Central Supply 

furnishes mining tools, equipment, and major necessities to the JWR mines such as rock dust, 

line curtains and hammers and nails. Additionally, Central Supply serves as the primary source 

of parts, tools and other equipment used at Central Shop. Central Shop has been inspected by the 

Mine Safety and Health Administration (MSHA) since 1982. Prior to the September 1998 

issuance of the subject contested citations, MSHA has not claimed or otherwise exercised 

jurisdiction over Central Supply. 

JWR stipulates that it will not contest the fact of occurrence of the subject citations in the 

event it is determined that Central Shop and/or Central Supply is subject to Mine Act 

jurisdiction. For the reasons discussed below, consistent with the Commission's basic 

jurisdictional framework set forth in Secretary of Labor v. Elam, 4 FMSHRC 5, 7 (January 

1982),1 it is concluded that Central Shop, but not Central Supply, is subject to Mine Act 

jurisdiction. Accordingly, the eight non-significant and substantial (non-S&S) citations in civil 

penalty Docket No. SE 99-66 shall be affirmed. Also consistent with this decision, JWR's 

contests in Docket Nos. SE 99-6-R through SE 99-10-R shall be granted resulting in the 

dismissal of these contest proceedings. 

1 As discussed infra, Elam requires an inquiry into whether the predicate operations 

alleged by the Secretary to be "used in, or resulting from, the work of extracting" coal, 

are operations usually performed by the operator of a coal mine. Section 3(h) of the Act; 

4 FMSHRC at 7. 

495 
I. JOINT STIPULATION OF FACTS 

1. Jim Walter Resources, Inc. (JWR) is an Alabama corporation that is engaged 

in the business of coal production. JWR owns and operates four underground coal 

mines within the state of Alabama. Those mines are the No. 3 mine in Jefferson 

County and the Nos. 4, 5, and 7 mines located in J:uscaloosa County. JWR 

owns and operates a preparation plant at each of their four mines. 

2. JWR owns and operates a Central Shop and a Central Supply, located adjacent 

to one another on JWR property, in Tuscaloosa County. The Central Shop/Supply 

are located within approximately one mile of the No. 5 mine, within twenty-five 

miles of the No. 3 mine and within six miles of the Nos. 4 and 7 mines. 

3. JWR also owns and operates a Training Center and a Central Mining Office in 

the same vicinity. Neither of these facilities has ever been inspected by MSHA. 

a. Centrat Shop 

4. MSHA's inspection reports indicate that the Central Shop has been inspected 

since November 16, 1982. Since that time, the following actions have been 

performed by JWR regarding the Central Shop: 

(a) Pursuant to 30 C.F.R. § 41.11, JWR notified the Mine Safety and Health 

Administration (MSHA) of the legal identity of the operator of the Central Shop. 

Accordingly, the Central Shop was issued Federal Mine Identification Number 

01-02515. 

(b) JWR has complied with the requirement to notify MSHA of any changes to 

the legal identity report for the Central Shop as required by 30 C.F.R. § 41.20. 

( c) MSHA has conducted inspections of the Central Shop at least once each year 

as identified in Exhibit "A" attached hereto. 

( d) MSHA has also conducted the following at the Central Shop: noise technical 

investigation, respirable dust technical inspection, electrical investigation, code-aphone spot inspection, and Section 103(g) spot inspections. 

(e) The Central Shop has complied with 30 C.F.R. § 50.20 by preparing and 

submitting MSHA Report Form 7000-1 with respect to the reporting of accidents, 

injuries, and illnesses. 

(f) The Central Shop has complied with 30 C.F.R. § 50.30 by preparing and 

submitting MSHA Report Form 7000-2 with respect to the quarterly reporting of 

employment and coal production. 

496 
(g) During the period of November 1, 1982 through November 10, 1998, JWR 

has paid 43 violations that were issued by MSHA as a result of inspections made 

at the Central Shop. 

5. The Central Shop's function is to provide repair services and to maintain 

electrical and mechanical equipment used throughout JWR operations. The 

majority of the work activities involve the repair, rebuild, modification, or 

overhaul of various types of mining equipment. Typical jobs include the 

rebuilding of longwall stageloaders, continuous mining machines, ram cars, 

scoops, versa tracs, roof bolting machines, man buses, locomotives, electrical 

starter boxes, overhauling longwall shields and fabricating chutes and hoppers for 

the preparation plant. 

6. The workers at the Central Shop are hourly workers employed by JWR and are 

members of the United Mine Workers of America (UMWA). They are supervised 

by management employees. The Shop operates two shifts (formally three shifts 

until 9/98) per day, five days per week and occasionally performs work on 

Saturdays and Sundays, ifthe need arises. Presently, the Central Shop employs 

9 salary workers and 54 hourly workers. The salaried employees of the Central 

Shop are not members of the UMW A. The salaried personnel of the Central Shop 

consist of a shop manager, coordinator, master mechanic, four shop foremen, 

a maintenance clerk/secretary and an accountant who also serves as the accountantyy 

for Central Supply. 

7. The equipment that is repaired at the shop is transported to and from the shop 

by JWR employees using JWR vehicles. The equipment that is brought to the 

shop is identified with a particular JWR mine or other facility and all charges for 

materials and labor are attributed to that particular mine or other facility by the 

Central Shop. 

8. The Central Shop provides its services to only JWR mines and facilities. 

b. Central Supply 

9. (a) Prior to the instant action, the Central Supply has never been inspected by 

MSHA. 

(b) The Central Supply does not have a Federal Mine Identification Number as 

required by 30 C.F.R. § 41.11. 

10. The primary function of the Central Supply is to serve as a warehouse of 

goods, materials and supplies that are used in or to be used in JWR's mines, 

preparation plants and the Central Shop. 

497 
11. The nature of supplies maintained at the Central Supply range from conveyor 

belts and belt structures to bard hats and safety glasses to automobile oil filters 

and nails. The majority of the inventoried goods at the Central Supply are used or 

intended to be used in support of JWR's mining operations. A complete list of 

inventoried items is attached hereto as Exhibit. "B". 

12. The Central Supply does not sell to the public. 

13. The value of the inventoried goods at the Central Supply is approximately 

$12 million. 

14. Approximately $7 million of the goods is considered on "consignmentn while 

the remaining $5 million constitutes materials/supplies purchased outright by 

JWR. 

15. Over 90% of the value of inventoried goods at the Central Supply are 

ultimately used in JWR's mining operations. This figure represents 

approximately 80% of the entire stock of inventoried goods. 

16. JWR has agreements with approximately 70 vendors who place goods on 

"consignment" at the Central Supply. These consigned goods are intended to be 

used by JWR' s mining operations, at which time JWR compensates the vendor for 

the goods. In the event the vendor has a need for the consigned goods while still 

in inventory, the vendor retains the right to retrieve the goods from JWR's Central 

Supply. Such a retrieval of consigned goods by a vendor is not a normal, 

everyday occurrence. 

17. The delivery of materials and supplies from the Central Supply to the mines 

is accomplished by Central Supply employees transporting the goods in a JWR 

owned vehicle. The Supply has a one ton flat bed truck that is used for most 

deliveries. The drivers are required to have a commercial driver's license. 

18. Employment at the Central Supply consists of 16 salaried and 7 hourly 

personnel. The 7 hourly employees are members of the UMW A. The salaried 

employees of the Central Supply are not members of the UMW A. The sixteen 

salaried personnel of the Supply consist of the general manager of purchasing and 

materials control, assistant manager of materials control, assistant manager of 

purchasing, materials disposition coordinator, warranty claims manager, buyer, 

assistant buyer, purchasing assistant, assistant storekeeper/purchasing, assistant 

store supervisor motor program, assistant supervisor of evening shift, four 

materials control analysts and an accountant who also serves as the accountant for 

the Central Shop. The Central Supply is open 24 hours per day, 7 days per week. 

The regular work week is Monday through Saturday with the Sunday shifts being 

staffed through "on calr' personnel. 

498 
19. JWR agrees that, should there be a decision conferring MSHA's jurisdiction 

over the Central Shop and/or the Central Supply, JWR will pay the proposed 

assessments set forth in the Civil Penalty Proceeding, SE 99-66, and will 

withdraw its related Contest Proceedings, Docket Numbers SE 99-6-R, 

SE 99-7-R, SE 99-8-R, SE 99-9-R, and SE 99-10-R. 

II. FINDINGS OF FACT AND CONCLUSIONS 

a. Definition of 11coal or other mine" 

Section 4 of the Mine Act provides that "[e]ach coal or other mine, the products of 

which enter commerce, or the operations or products of which affect commerce, ... shall be 

subject to the provisions of this Act." 30 U.S.C. § 803. Under section 3(h)(l) of the Mine Act, 

"coal or other mine" includes "lands, ... structures, facilities, equipment, machines, tools, or 

other property ... used in, or to be used in, ... the work of preparing coal .... " 30 U.S.C. 

§ 802(h)(l). Included in the definition of "coal mine" in section 3(h)(2) of the Act, 30 U.S.C. 

§ 802(h)(2), are "machinery, tools [and] equipment ... placed upon, under, or above the surface 

of such [mine]." Section 3(i) of the Act defines "work of preparing coal" to include such other 

mining related work that "is usually done by the operator of a coal mine. 30 U.S.C. § 802(i). 

(Emphasis added). 

These matters concern the question of statutory interpretation of the jurisdictional 

predicates in section 3 of the Mine Act. The definitions of "coal mine" and "work of preparing 

coal" in sections 3(h) and 3(i) are "broad[,]" "sweeping" and "expansive[,]" 1\1arshall v. Stoudt's 

Ferry Preparation Co., 602 F.2d 589, 591-92 93(3d Cir. 1979), cert. denied, 444 U.S. C 1015 

(1980). The first inquiry in statutory construction is whether the statutory provision is clear and 

unambiguous and 11whether Congress has directly spoken to the precise question in issue." 

Chevron US. A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) 

(referred to as the "Chevron f' analysis). Congress intended that "doubts be resolved in favor of 

inclusion of a facility within the coverage of the Act." S. Rep. No. 181, 95th Cong., !51 Sess. 

14 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 

951

h Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 

602 (1978). Thus, Mine Act coverage is to be given the "broadest possible" scope, Pennsylvania 

Elec. Co. v. Federal Mine Safety & Health Review Comm 'n, 969 F.2 1501, 1503 (3d. Cir. 1992), 

in that the statute "was intended to provide a 'sweeping definition' of the word 'mine,' 

encompassing much more than the usual meaning attributed to it." Bush & Burchett, Inc. v. 

Reich, 117 F.3d 932 936 (6th Cir. 1997) (quoting Donovan v. Carolina Stalite Co., 236 U.S. 

App. D.C. 264, 734 F.2d 1547, 1551 (D.C. Cir. 1984)). 

Although Congress has articulated that the statutory definitions of "coal mine" and "work 

of preparing coal" should be broadly applied, the issue of whether a broad range of activities 

beyond traditional mining is covered by section 3(h) of the Act has been the subject of frequent 

499 
litigation with conflicting results. For example, Courts have disagreed over whether a power 

plant that crushes and screens coal is subject to the Act. See, e.g., Pennsylvania Elec. Co. v. 

Federal Mine Safety & Health Review Comm 'n, 969 F.2d 1501, 1503 (3rc1 Cir. 1992) (sizing and 

cleaning coal by power plant constitutes coal preparation under section 3(h) of the Act); cf 

Secretary of Labor v. Associated Electric Cooperative, Inc., CA 8 No. 98-1876, _ F.3d._ 

(April 20, 1999, 81h Cir.) (coal handling and crushing by power plant more properly characterized 

as "manufacturing" than "mining"). 

Given the ambiguous nature of the applicability of section 3(h) of the Act, the analysis 

shifts to whether the Secretary's interpretation of section 3(h) of the Act is a reasonable one. See 

Chevron, 467 U.S. at 843-44; Coal Employment Projectv. Dole, 899 F.2d 1127, 1131 (D.C. Cir 

1989) (referred to as the "Chevron If' analysis). The Mine Act is a statute designed to ensure 

safe working conditions for miners. Therefore, an analysis of the proper jurisdictional reach of 

section 3(h) requires consideration of whether the subject activities involve substantial coal 

processing operations that expose workers to the unique hazards associated with mining. 

Western Fuels-Utah, Inc., 19 FMSHRC 994, 998 (June 1997). 

b. The Central Machine Shop 

While there are numerous cases that apply the Mine Act's broad jurisdictional mandate to 

a variety of activities associated with the preparation of coal, the specific question of whether a 

central off-mine site maintenance facility is subject to Mine Act jurisdiction is not a matter of 

first impression. In US. Steel Mining, Inc., 10 FMSHRC 146 (February 1988), in virtually 

identical circumstances to the facts of this case, the Commission considered the jurisdictional 

question concerning a central repair shop that: (1) was used for the repair and maintenance of 

electrical and mechanical coal mining equipment; (2) had an MSHA ID number and was 

previously subject to MSHA enforcement; and (3) was located between mile and 5 miles from 

two of U.S. Steel's mines and its processing plant The Commission concluded U.S. Steel's 

maintenance facility was, in and of "itself," 11 ••• a separate surface 'coal mine' within the 

meaning of [section 3(h)(I)] of the Act .... " Id. at 148. In determining the repair activities were 

subject to Mine Act regulation, the Commission noted that U.S. Steel employees were exposed to 

hazards inherent in moving heavy equipment, performing electrical work, and engaging in 

various grinding, cutting, sharpening and welding tasks. Id. at 147; see also W J Bok:us 

Industries, Inc. , 16 FMSHRC 704,708 (April 1994) (equipment in a maintenance and storage 

garage could injure miners working in the garage). 

In its Motion for Summary Decision, JWR's seeks to distance itself from US. Steel. 

For reasons that are not entirely clear, JWR argues the US. Steel holding only imposed Mine Act 

jurisdiction on equipment rather than the repair shop itself. (See JWR Motion, subsection 

(B)(3)(r)). However, US. Steel makes no such distinction. Moreover, it is a mine facility, not 

the equipment therein, that is the predicate for Mine Act jurisdiction. In this regard, as a general 

proposition, a haulage truck ceases to be subject to Mine Act jurisdiction once it exits mine 

property. Thus, US. Steel is the controlling case law that supports MSHA's exercise of 

jurisdiction over JWR's Central Shop. 

500 
Notwithstanding US. Steel, the jurisdictional framework for conferring Mine Act 

jurisdiction involves an analysis of whether the particular coal-processing operation sought to be 

regulated as "mining" is in the nature of activities "usually" performed by mine operators 

engaged in the extraction of minerals. Secretary of Labor v. Elam, 4 FMSHRC at 7; 30 U.S.C. 

§ 820(i). As discussed above, the hazards associated with activities closely related to mining are 

the activities Congress intended to regulate under the Mine Act's statutory scheme. 

The maintenance of mining equipment is an integral part of the mining process, and 

proper maintenance is the means to achieve a fundamental Mine Act purpose -- continued 

operation of safe equipment. The maintenance function, if performed improperly, could pose a 

hazard to miners working on mine property as well as Central Shop employees. Accordingly, the 

Secretary's Motion for Summary Decision of the Central Shop jurisdictional question in Docket 

No. SE 99-66 shall be granted. Consequently, consistent with JWR's stipulation, JWR has 

agreed to pay the $440.00 civil penalty proposed by the Secretary for the eight non-S&S citations 

that are the subject of Docket No. SE 99-66. 

c. The Central Supply Shop 

The significant fact~ that provide the basis for jurisdiction of the Central Shop are absent 

with respect to the Central Supply. Although the Central Shop was registered as a mine facility 

and actively inspected by MSHA since 1982, MSHA previously has not sought to exercise 

jurisdiction over Central Supply despite its location adjacent to the Central Shop. While MSHA 

is not estopped from asserting its jurisdiction at the present time, less deference must be accorded 

to MSHA's statutory interpretation of section 3(h) of the Act in view of its inconsistent 

enforcement history with regard to the Central Shop as compared with Central Supply. 

Cf General Electric Co. v. Gilbert, 429 U.S. 125, 140-45 (1976) (less judicial deference required 

when agency has taken inconsistent positions in promulgating interpretative regulations). 

Moreover, as noted above, while Congress intended the Mine Act's coverage to be broad 

in scope, the remedial nature of the Mine Act is not without its limitations. Carolina Stalite, 

734 F.2d at 1551. Although the term "miner" has been broadly applied to include a construction 

worker, elevator mechanic, laboratory technician or clerk-typist working at a mine, it is only the 

performance of such wide ranging activities on mine property that confers "miner" status under 

the Act.2 Otis Elevator Co. v. Secretary of Labor, 921F.2d1285 (D.C. Cir. 1990); Martha 

Perando v. Mettiki Coal Corp., 10 FMSHRC 491 (April 1988). For example, in National 

Industrial Sand Ass 'n v. Marshall, 601 F.2d 689, 704 (3rd Cir. 1979), in determining whether one 

is a miner, the Court stated that "the statute looks to whether one works in a mine, not whether 

one is an employee or nonemployee or whether one is involved in extraction or nonextraction 

activities." (Emphasis in original). See also, Cyprus Empire Corporation, 15 FMSHRC 10, 

14 (January 1993). Thus, the Court has concluded that a manufacturer of mining equipment, that 

sends sales representatives onto mine property in connection with the sale of its products, is an 

independent contractor-operator subject to jurisdiction of the Mine Act. Joy Technologies Inc. v. 

2 Section 3(g) of the Act defines "miner" as "any individual working in a coal or other 

mine." 30 U.S.C. § 802(g). 

501 
Secretary of Labor, 99 F.3d 991 (10th Cir. 1996). 

However, because a variety of activities performed on mine property may give rise to 

Mine Act jurisdiction, such activities may not provide jurisdiction if performed off mine site 

property. Dilip K. Paul v. P.B. - K.B.B., Inc., 7 FMSHRC 1784, 1787 (November 1985) (a mine 

engineering office located off mine property is not "a coal or other mine"). Although Central 

Supply is a faci lity engaging in vendor activities similar to those in Joy Technologies, Central 

Supply's activities occur outside mine property. To hold that Central Supply is a "coal or other 

mine" subject to the Mine Act conceivably could subject all vendors of mining equipment and 

supplies to mine regulation, a result never contemplated by Congress. 

In the final analysis, individuals employed by a mine operator performing sales and 

supply activities outside mine property are not "miners" in need of Mine Act protection. Put 

another way, mining equipment sales and supply functions, are, by their nature, usually 

perfo1med by vendors and warehouse personnel who are not exposed to hazards normally 

associated with mining. Such activities performed off mine property, whether performed by 

employees of a mine operator, or by independent vendors and suppliers, cannot be classified as 

"mining" under the Commission's Elam test. 

In this regard, three of the five contested citations issued at Central Supply involve 

technical violations concerning failure to allow MSHA inspections and a reporting violation. 

The remaining two citations concern non-significant and substantial violations with respect to a 

forklift. Citation No. 7665508 contested in these matters states, "[t]his forklift is used to move 

supplies and material within the confines of the main supply building." The transfer of supplies 

and materials within the confines of a central supply warehouse are not activities normally 

performed by the operator of a mine. Accordingly, the Secretary has failed to demonstrate the 

Central Supply Shop is "a coal or other mine" as contemplated by Congress under section 3(h) 

of the Mine Act. Consequently, JWR's Motion for Summary Decision with respect to its 

Central Supply shall be granted and the captioned contest proceedings shalI be dismissed. 

ORDER 

In view of the above, IT IS ORDERED that Jim Walter Resources Inc., pay, within 

40 days of the date of this Decision, a civil penalty of $440.00 in satisfaction of the eight 

citations that are subject of Docket No. SE 99-66. Upon timely receipt of payment, 

Docket No. SE 99-66 IS DISMISSED. 

502 
IT IS FURTHER ORDERED that Jim Walter ResClurces Inc. 's contests in Docket 

Nos. SE 99-6-R, SE 99-7-R, SE 99-8-R, SE 99-9-R, and SE 99-10-R ARE GRANTED. 

Accordingly, the subject citations in these contest proceedings ARE VACATED, and 

Docket Nos. SE 99-6-R, SE 99-7-R, SE 99-8-R, SE 99-9-R, and SE 99-10-R ARE 

DISMISSED. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

Guy W. Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444 

(Certified Mail) 

William Lawson, Esq. Office of the Solicitor, U.S. Department of Labor, Suite 150, 100 Centerview 

Drive, Chambers Building, Highpoint Office Center, Birmingham, AL 35216 (Certified Mail) 

/mh 

503 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

173.0 K STREET, N.W., &TH FLOOR 

WASHINGTON, D. C. 20006..J868 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DRUMMOND COMPANY, 

INCORPORATED, 

Respondent 

May 19, 1999 

CIVIL PENALTY PROCEEDING 

Docket No. SE 99-39 

A. C. No. 01-02901-03658 

Shoal Creek Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO PAY 

Before: Judge Merlin 

This case is before me upon a petition for assessment of the civil penalties filed under 

section 105(d) of the Federal Mine Safety and Health Act of 1977. The parties have filed a joint 

motion to approve settlements. A reduction in the penalties from $6,000 to $2,950 is proposed. 

Order No. 4477477 was issued under section 104(d)(l) of the Mine Act for a violation of 

30 C.F .R § 75.400 because loose coal and coal dust accumulated at various locations in the 

bleeder roadway. The originally assessed penalty was $1,000 and the proposed settlement is 

$100. The pru.ties advise that MSHA modified the violation from a 104(d)(l) order to a 104(a) 

citation, deleted the unwarrantable failure finding and reduced negligence from high to low prior 

to the assessment of a penalty. However, these modifications were not considered when the 

penalty was calculated by MSHA. Therefore, the reduction reflects the penalty that would have 

been assessed had MSHA considered the changes to the violation. 

Order No. 4477476 was issued under section 104(d)(l) of the Mine Act for a violation of 

30 C.F.R. § 75.1903(a)(2) because the underground diesel fuel storage facilities were not 

provided wi~ self-closing doors. The violation was designation non-significant and substantial 

and resulted from the operator's unwarrantable failure. The originally assessed penalty was 

$1,000 and the proposed settlement is $100. In their joint motion the parties request that the 

violation be modified from a 104(d)(l) order to a 104(a) citation, that the unwarrantable failure 

finding be deleted and that negligence be reduce from high to moderate. The parties advise that 

there is no evidence that the operator was aware or should have been aware of this condition nor 

is there evidence indicating how long this condition existed. FinaUy, the parties state that the 

area was inspected daily by the operator and there is no record that the doors were inoperative or 

in need of repair. 

504 
Citation No. 4480767 was issued under section 104(d)(l) of the Mine Act for a violation 

of 30 C.F.R. § 75.400 because coal and coal dust accumulated along both sides of the slope belt 

for approximately 4,500 feet. The citation further notes that the fire boss book contained notes 

that the slope belt needed cleaning on each shift for the two weeks prior to the issuance of the 

citation. The violation was designated significant and substantial and that it resulted from the 

operator's unwarrantable failure. The originally assessed penalty was $4,000 and the proposed 

settlement is $2,750. The parties request in their motion that the violation be modified from a 

104(d)(l) citation to a 104(a) citation, that the unwarrantable failure finding be deleted and that 

negligence be reduced from high to moderate. The parties advise that the accumulations were 

caused when the longwall sections encountered water problems resulting in water being 

transp·orted along with the coal on the conveyor system. While traveling up the incline of the 

slope belt, coal and water would frequently wash off the conveyor onto the mine floor. 

The parties advise in their joint motion that at the time of the violation the operator was in 

the process of addressing the problems with the slope belt. According to the motion, the 

operator had c_ommitted to spending $217,000 for the repair of the surge bin which is used to 

maintain an even distribution of coal throughout the length of the slope belt. The operator also 

purchased and installed a mini-conveyor system at the bottom of the slope to return coal fines 

and spillage back onto the slope belt. (It subsequently ordered a second mini-conveyor). Finally, 

the operator had attended to the accumulations along the slope belt by assigning additional 

personnel to keep the area clean. The motion states that these facts were unknown to MSHA 

when the citation was issued. 

I have considered the representations and documentation submitted in this case, and I 

conclude that the proffered settlements are appropriate under the criteria set forth in section 

11 O(i) of the Act. 

In light of the foregoing, the motion for approval of settlements is GRANTED. 

It is ORDERED that Order No. 4477476 be MODIFIED from a 104(d)(l) order, to 

delete the unwarrantable failure finding and to reduce negligence from high to moderate. 

It is further ORDERED that Citation No. 4480767 be MODIFIED from a 104( d)(l) 

citation, to delete the unwarrantable failure finding and to reduce negligence from high to 

moderate. 

It is further ORDERED that the operator pay a penalty of $2,950 within 30 days of this 

decision. 

\~ 

\ 

Paul Merlin 

Chief Administrative Law Judge 

505 
Distribution: 

William Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 150, Chambers 

Building, Highpoint Office Center, 100 Centerview Drive, Birmingham, AL 35216 

David M. Smith, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North, 2400 Am 

South/Harbert Plaza, Birmingham, AL 35203-2618 

Mr. Sammy 0. Key, UMWA, 986 Underwood Ferry Road, Cordova, AL 35550 

/gl 

506 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEY ARD #280 

DENVER, CO 80204-3582 

303-844-3577 /FAX 303-844-5268 

May 24, 1999 

GETCHELL GOLD CORPORATION, 

Contestant 

CONTEST PROCEEDING 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Docket No. WEST 99-162-RM 

Order No. 7966725; 3/05/99 

Turquoise Ridge Mine 

Id. No. 26-02286 

Appearances: Laura E. Beverage, Esq., and L. Anthony George, Esq., Jackson & Kelly, 

Denver, Colorado, for Contestant; 

Before: 

Susan Gillett Kumli, Office of the Solicitor, U.S. Department of Labor, 

San Francisco, California, for Respondent. 

Judge Manning 

This case is before me on a notice of contest filed by Getchell Gold Corporation 

("Getchell") against the Secretary of Labor pursuant to sections 105(d) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(d)(the "Mine Act"). Getchell contested an order 

of withdrawal issued on March 5, 1999, at its Turquoise Ridge Mine alleging a violation of the 

Secretary's safety standard at 30 C.F.R. § 57.14204. An expedited hearing was held on May 5 

and 6, 1999. The parties presented testimony and documentary evidence, presented oral 

argument, and waived post-hearing briefs. At the close of the hearing, I entered a bench decision 

in which I vacated the subject order of withdrawal. (Tr. 482-96). This written decision 

supersedes my bench decision. I have amplified certain findings and conclusions in this written 

decision based on my review of the record and further legal research. 

I. BACKGROUND 

The Turquoise Ridge Mine is an underground gold mine in Humboldt County, Nevada. It 

is less that a mile away from the Getchell Mine, which is also operated by Getchell. The two 

mines are jointly managed by Getchell. On February 16, 1999, one miner was killed and another 

seriously injured while attempting to adjust a compressed air line at the Turquoise Ridge Mine. 

507 
The area of the Turquoise Ridge Mine where the accident occurred was under 

development and the compressed air lines were being installed on February 16. The compressed 

air system was working in parts of the mine. Two types of piping are used in the compressed air 

system. Steel utility pipes carry air throughout the mine. Wire-braided rubber air hose is used in 

working sections. This hose is referred to as a "bull hose." In this instance, the bull hose was 

installed to carry compressed air through the intersection of the TR1550 ramp and the TR3955 

access roadway. At the north end of the intersection, the bull hose was already connected to a 

steel pipe. A steel pipe had recently been installed up to the south end of the intersection. 

On February 16, Thomas Gross and Thomas Crowley were to connect the bull hose to the 

steel pipe at the south end of the intersection. After completing installation of the airline, Mr. 

Gross noticed that the handle of the valve located at this coupling was facing the rib rather than 

the haulageway. While repositioning the valve at the south end, Mr. Gross noticed that a part of 

the coupling had not been properly installed by the previous crew. The two employees began 

disconnecting the coupling to reposition the valve and to correctly install the misadjusted portion 

of the coupling. Unknown to these employees, the compressed air system was energized at this 

location. When they loosened the coupling, the bull hose began thrashing about violently. The 

hose struck the employees, killing Mr. Gross and seriously injuring Mr. Crowley. 

MSHA conducted an investigation of the accident and issued a number of citations and 

orders. Only Order No. 7966725 is at issue in this proceeding. It alleges a violation of 30 C.F.R. 

§ 57.14205 as follows: 

At the three-way intersection of the 1550 Turquoise Ridge ramp 

and the TR3955 access, a combination nipple [was] being utilized 

as the interconnecting device between a Victaulic coupling and 4-

inch diameter rubber hose on a high pressure air line. Accordingly 

to readily available information from the manufacturer, this nipple 

was designed for low pressure discharge and suction purposes and 

was not engineered for use on high pressure air lines. The mine 

operator's failure to require and insure that this device was used in 

applications within its design capacity as intended by the 

manufacturer is a lack of reasonable care constituting more than 

reasonable negligence and is an unwarrantable failtire to comply 

with the standard. 

Inspector David Kerber: determined that a fatal injury was reasonably likely; that the alleged 

violation was of a significant and substantial nature; and that Getchell' s negligence was high. He 

issued the order under section 104( d)(2) of the Mine Act. The cited safety standard provides: 

Machinery, equipment, and tools shall not be used beyond 

the design capacity intended by the manufacturer, where such use 

may create a hazard to persons. 

508 
Getchell contested the order in this proceeding and the parties attempted to resolve the 

issues through settlement negotiations. On April 19, 1999, I granted Getchell Gold's motion to 

schedule an expedited hearing in this case because the cited combination nipple is used 

throughout the Turquoise Ridge and Getchell Mines. Replacing them with another type of 

coupling would require shutting down the compressed air system for a significant period of time. 

At the hearing, Leland Page, who is the mine manager for the Turquoise Ridge and Getchell 

Mines, testified that there are about 98 such couplings in the GetcheJI Mine and about 43 in the 

Turquoise Ridge Mine. (Tr. 302). 

It is important to understand the parts used to connect the 6-inch steel pipe with the 4-

inch bull hose. Three interlocking parts are used: a reducer, shut-off valve, and the combination 

nipple. The reducer is attached at the end of the steel pipe. The reducer changes the diameter of 

the opening from 6 inches to 4 inches. It is attached to the end of the steel pipe by a Victaulic 

coupling. A Victaulic coupling consists of two C-shaped metal bands that are drawn together 

with two bolts around the joint to be connected. A rubber gasket is placed between the Victaulic 

coupling and the joint. A groove is cut into the end of the pipe and a groove is manufactured into 

the various devices to be attached, such as the reducer. When the Victaulic coupling is tightened, 

the ridge on each edge of the coupling fits into the corresponding groove on the components that 

are being attached. As the bolts on the Victaulic coupling are tightened, the rubber gasket is 

compressed, making an airtight joint, and the ridges engage in the grooves, making a 

mechanically strong coupling. 

A Victaulic coupling is also used to attach the shut-off valve to the reducer and to attach 

the combination nipple to the shut-off valve. The use ofVictaulic couplings to attach the 

components in the compressed air system at the mine is not contested by MSHA. That is, MSHA 

does not consider the use ofVictaulic couplings to be in violation of section 57.14205. 

The method of connecting the combination nipple to the bull hose is what is in dispute in 

this case. As stated above, the combination nipple has a groove at one end that was used to 

attach the nipple to the shut-off valve with a Victaulic coupling. The combination nipple fits 

inside the bull hose at the other end and is secured with several band clamps. The outside 

surface of the steel nipple is equipped with a number ofridges that face away from the outer edge 

of the nipple. Thus, when the nipple is forced into the bull hose these ridges cut into the hose to 

help prevent the hose from separating from the nipple. The band clamps are tightened with a 

special tool. Once the clamps are attached, they cannot be removed except by cutting them off. 

As stated above, the accident occurred when Mr. Gross noticed that the Victaulic 

coupling attaching the nipple to the shut-off valve was not properly seated into the groove for the 

valve. When he attempted to fix the problem by loosening the bolts for the Victaulic coupling, 

the energized bull hose began whipping around and struck Messrs. Gross and Crowley. The 

connection between the bull hose and the nipple did not fail. 

MSHA contends that the use of the combination nipple in the mine's compressed air 

system exceeds the design capacity intended by the manufacturer. During its accident 

509 
investigation, MSHA asked for information about the combination nipple and received from 

Getchell a copy of the parts catalogue from Dixon Valve and Coupling Company ("Dixon,,). 

Under the entry for Dixon,s "King Combination Nipple,, the catalogue states as follows: 

Combination nipples are recommended for low pressure discharge 

and suction services. The working pressure of combination 

nipples varies with the size of the nipple, the size and 

construction of the hose, and the type of clamping system used; 

consult the Factory for recommendations. NOT INTENDED 

FOR COMPRESSED AIR. 

(Ex. S-9, emphasis in original). Dennis Ferlich, who is a mechanical engineer with MSHA's 

Mechanical Safety Division at the Approval and Certification Center in Triadelphia, West 

Virginia, contacted Dixon. Mr. Perlich testified that Paramjit Singh, Vice President of 

Engineering with Dixon, told him that its King combination nipple should not be used with any 

type of compressed air. (Tr. 96; Ex. S-4 at 9). After considering the language in Dixon>s 

catalogue and discussions with Mr. Singh, MSHA officials determined that Getchell was in 

violation of section 57 .14205 and the subject order was issued by Inspector Kerber. 

II. DISCUSSION AND FINDINGS OF FACT 

One of the key disputes in this case is the meaning of the words "used beyond the design 

capacity intended by the manufacturer" in the safety standard. The Secretary contends that if 

equipment is put to a different use than that intended by the manufacturer and that use may create 

a haz.ard to persons, a violation has been established. Getchell, on the other hand, argues that the 

equipment must be used beyond its "design capacity." That is, the use must be beyond the design 

tolerances of the equipment. Thus, according to Getchell, there is a quantitative element in the 

standard. 

I find that the words "design capacity" cannot be equated with use. Thus, if a mine 

operator uses a piece of equipment for a purpose not intended by the manufacturer, there is no 

violation without proof that such use exceeds the design capacity. None of the witnesses at the 

hearing could precisely define the term "design capacity." Indeed, none of the witnesses were 

very comfortable with the term because it is not a traditional engineering concept. The word 

"capacity" means, "the power or ability to hold, receive, or accommodate ... the ability to store, 

process, treat, manufacture, or produce .... " Webster's Third International Dictionary 330 ( 1976). 

Thus, based on the language of the standard, I interpret the standard to mean that a mine operator 

cannot use equipment for a task that is beyond the ability of the equipment to perform, as 

designed by the manufacturer, if such use may create a hazard to persons. There is a quantitative 

clement in the standard and the mere fact that equipment is used for a different task than that 

intended or anticipated by the manufacturer does not establish a violation. 

A review of the regulatory history is instructive. This standard has existed in a similar 

form for a considerable time. In 1988, the Secretary substantially revised its standards for 

510 
machinery and equipment in metal mines. In the preamble to the final rule, the Secretary 

addressed some of the comments filed by mine operators about this standard, as follows: 

Some commenters considered the requirement to use 

machinery, equipment, and tools according to the manufacturers' 

specifications and instructions ... to be unrealistic in some mining 

situations. They propose that this standard be deleted. MSHA 

agrees that the manufacturers' specifications and instructions 

could go beyond the intent of this regulation. However, MSHA 

notes that serious mining accidents can occur from the misuse of 

equipment. For example, haulage trucks can be loaded beyond 

their design capacity, and braking and suspension systems can fail. 

MSHA has, therefore, retained the requirement that machinery, 

equipment, and tools shall not be used beyond the design capacity 

intended by the manufacturer where such use may create a hazard 

to persons. 

The final standard permits mine operators to modify the 

machillery, equipment, or tools they purchase from 

manufacturers to suit their particular mi11ing needs provided that 

hazards to persons aren't created. Overloading of equipment, 

such as haulage equipment and cranes, that can create a hazard to 

equipment operators and other persons in the area would not be 

permitted by the standard. 

Some commenters also considered this standard to be 

duplicative of[§ 56/57.14100(b)] (defects affecting the safe 

operation of machinery, equipment, or tools). The focus of this 

standard is the safe use and modification of mining equipment 

while[§ 56/57.14100(b)] addresses defective equipment.. .. 

(53 Fed. Reg. 32496, 32514-15 (August 25, 1988)(emphasis added). The regulatory history 

makes clear that mine operators can modify equipment for their own use so long as they do not 

"overload" such equipment in such a way as to create a hazard to persons. Thus, one issue in this 

case is whether, by using a combination nipple in its compressed air system, Getchell overloaded 

the nipple beyond its capacity as intended by the manufacturer. 

Getchell contends that its use of the combination nipple to connect the bull hose to the 

shut-off valve does not violate the safety standard. It raises a number of factual and legal issues 

in its defense. First, it contends that there is no proof that the combination nipple in question was 

a King combination nipple manufactured by Dixon. Its witnesses testified that combination 

nipples are manufactured by a number of different companies. Because Getchell purchases 

combination nipples from a supplier r~ther than directly from a manufacturer, it does not know 

where they come from. All combination nipples are essentially the same and brand names are 

511 
not marked on them. Getchell introduced into evidence portions of parts catalogues from three 

other manufacturers that sell combination nipples. (Ex. C-4, 5 & 6). These exhibits do not 

contain language indicating that such nipples are not intended for use in compressed air systems. 

Because the cited combination nipple may well have been manufactured by Dixon and 

Getchell provided MSHA with Dixon's catalogue when asked for information about the nipple, I 

will assume, for purposes of this case, that the cited combination nipple was a King combination 

nipple manufactured by Dixon. 

Next, Getchell argues that it was the manufacturer in this instance because it assembled 

the coupling by inserting the nipple into the bull hose and secured the connection with band 

clamps. It states that the combination nipple by itself is just a component part of the assembly. 

In addition, it maintains that if a failure were to occur in this assembly, the hose or the band 

clamps would fail, not the nipple. The nipple is made of heavy gage steel that can withstand 

more pressure than that found in Getchell' s compressed air system. 

I agree with Getchell that it manufactured the combination nipple, bull hose, and band 

clamp assembly (the "nipple assembly"). Getchell assembles these components on the surface 

before the bull hose is taken underground. The nipple itself is just one part of the assembly and 

the Secretary did not show that the nipple was incapable of holding or carrying 118 psi of 

compressed air, which is the working pressure in Getchell's system. 

Nevertheless, because Dixon put the disputed language in its catalogue, further analysis is 

required. I will assume that Dixon is one of the manufacturers of this assembly along with the 

manufacturer of the bull hose and the band clamps. I find the language in the catalogue to be 

confusing and somewhat contradictory. On one hand, it states that "the working pressure of 

combination nipples varies with the size of the nipple, the size and construction of the hose, and 

the type of clamping system used." (Ex. S-11 at 109). On the other hand, it states that it was not 

"intended for compressed air." Id The amount of pressure the nipple can safely hold depends 

on many factors including the construction of the hose and the integrity of the clamping system. 

The "design capacity intended by the manufacturer" likewise depends on these factors. There 

does not appear to be a quantitative element to Dixon's recommendation. Even if the pressure 

were very low, it would not recommend use of the nipple in air systems. The reasons for this 

recommendation are not clear. -

The Secretary issued a subpoena to Mr. Singh but he did not appear at the hearing 

because of a family medical emergency. (Ex. S-1 ). Mr. Singh testified, without objection, 

through his affidavit dated April 29, 1999. (Ex. S-2). In his affidavit, Mr. Singh testified that: 

The KNC [King Combination Nipple] is not intended to be used 

with compressed air. This means that it is not intended to be used 

with compressed air at any level of pressure. Absolutely under no 

circumstances is a KNC intended to be used with compressed air at 

a pressure level of 100 psi (pounds per square inch). 

512 
(Ex. S-2, at 2)(emphasis added). Mr. Singh goes on to state that Dixon manufactures other 

devices that it recommends for use in compressed air systems. He states that such couplings are 

"either swaged onto hoses using swaging equipment, or they are installed with bolt-on type 

clamps for which tightening torque can be specified and readily measured in order to ensure a 

sufficiently tight connection." ld. 1 He suggests two proprietary devices manufactured by Dixon 

be used to connect a hose to a compressed air system. 

At the end of his affidavit, Mr. Singh raises safety issues by stating: 

(Id. at 2-3). 

Although it is difficult to quantify risk of hose separation, it is safe 

to say that this risk is increased if inappropriate equipment, such as 

the KNC used with compressed air, is used. Dixon also cautions 

that air hose couplings are of particular concern because when 

pressurized air releases suddenly, it does so explosively and can 

cause rapid hosewhip. 

There is no dispute that compressed air systems present safety hazards and that a failure 

of a coupling can cause death or serious injury. It is clear the Dixon does not intend for its 

customers to use its combination nipple in compressed air systems. It recommends that 

customers use proprietary couplings that it manufactures specifically for use in compressed air 

systems, such as "Boss Clamps." Mr. Singh states that the use of its combination nipple in 

compressed air systems raises the risk of hose separation, but he did not quantify that risk. He 

also did not state that the nipple assembly used at the Turquoise Ridge Mine exceeded the design 

capacity intended by Dixon. 

The issue is whether Getchell, by using a combination nipple in its compressed air 

system, overloaded the nipple and the nipple assembly beyond its capacity as intended by the 

manufacturer. The Secretary focuses on the words "intended by the manufacturer" when 

interpreting the safety standard. She argues that the fact that Dixon does not intend its King 

combination nipple to be used in compressed air systems proves that, by doing so, Getchell was 

exceeding the design capacity intended by the manufacturer. She equates the manufacturer's 

intended use with "design capacity." I reject this interpretation of the safety standard. 

First, as discussed above, the Secretary's interpretation is not consistent with the plain 

language of the standard or the preamble to the :final rule. Ifl assume that the language of the 

regulation is ambiguous, I must defer to the Secretary's interpretation of the standard. It is well 

established that an agency's interpretation of its own regulations should be given "deference ... 

unless it is plainly wrong" and so long as it is "logically consistent with the language of the 

1 In a swaged system, a coupling is crimped onto the hose with special equipment. This 

work would normally be done by the distributor and not the customer. (Tr. 362). 

513 
regulation and ... serves a permissible regulatory function." General Electric Co. V EPA, 53 F .3d 

1324, 1327 (D .C. Cir 1995)( citations omitted); Buffalo Crushed Stone, Inc., 19 FMSHRC 231 , 

234 (February 1997). In addition, the legislative history of the Mine Act states that "the 

Secretary's interpretations of the law and regulations shall be given weight by both the 

Commission and the courts." S. Rep. No. 181, 95th Cong., I S1 Sess. 49 (1977), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2°d Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977 at 637 (1978). 

Although the Secretary's interpretation is consistent with the remedial purposes of the 

Mine Act, it is contrary to the plain language of the standard and is therefore not reasonable. In 

addition, I believe that the safety standard does not p1:ovide mine operators with sufficient notice 

of the requirements of the standard, as interpreted by the Secretary. The language of section 

57.14205 is "simple and brief in order to be broadly adaptable to myriad circumstances." KerrMcGee Corp., 3 FMSHRC 2496, 2497 (November 1981); Alabama By-Products Corp., 4 

FMSHRC 2128, 2130 (December 1992). Such broadly written standards must afford notice of 

what is required or proscribed. U.S. Steel Corp., 5 FMSHRC 3, 4 (January 1983). In "order to 

afford adequate notice and pass constitutional muster, a mandatory [health] standard cannot be 

'so incomplete, vague, indefinite, or uncertain that (persons] of common intelligence must 

necessarily guess at its meaning and differ as to its application"' Ideal Cement Co., 12 FMSHRC 

2409, 2416 (November 1990)(citation omitted). A standard must "give a person of ordinary 

intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." 

Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991). 

When faced with a challenge that a safety standard failed to 

provide adequate notice of prohibited or required conduct, the 

Commission has applied an objective standard, i.e., the reasonably 

prudent person test. The Commission recently summarized this 

test as "whether a reasonably prudent person familiar with the 

mining industry and the protective purposes of the standard would 

have recognized the specific prohibition or requirement of the 

standard." 

Id. (citations omitted). To put it another way, a safety standard cannot be construed to mean 

what the Secretary intended but did not adequately express. "The Secretary, as enforcer of the 

Act, has the responsibility to state with ascertainable certainty what is meant by the standard he 

has promulgated." Diamond Roofing Co. V OSHRC, 528 F.2d 645, 649 (5th Cir. 1976). 

I find that a reasonably prudent person familiar with the mining industry and the 

protective purposes of the safety standard would not realize that the standard is violated because 

a mine operator uses equipment for work that is not intended by the manufacturer. The language 

speaks of design capacity not intended use. 

It is worth noting that the Secretary's interpretation could lead to unintended results. A 

manufacturer of mining equipment could state in its sales documents that its equipment can only 

514 
be safely used in conjunction with its own line of equipment and that any other use could create a 

hazard to miner~. A mine operator would be forced to purchase all of the parts and ancillary 

equipment from the same manufacturer to avoid potential violations of the safety standard. 

I hold that, in order to prove a violation, the Secretary must establish that the 

manufacturer has tested its equipment and determined that it is capable of performing a certain 

amount of work. The Secretary can also rely on testing performed by such organizations as the 

American Society for Testing and Materials ("ASTM"). The Secretary need not always produce 

evidence of formal laboratory studies; the designed capacity can often be based on empirical 

information or knowledge of the manufacturer. For example, if a braking system on a haulage 

truck is designed by the manufacturer to carry no more than the weight of the truck plus 50 tons 

and the mine operator modifies the dump on the truck to carry 80 tons, the Secretary may be able 

to establish a violation with this information. My holding in this regard is consistent with the 

decisions of other Commission administrative law judges. See Stillwater Mining Co., 18 

FMSHRC 1291(July1996), a/I'd 142 F.3d 1179 (9th Cir. 1998); Eastern Ridge Lime Co., 19 

FMSHRC 398 (February 1997). 

As further support for her position, the Secretary argues that the nipple assembly was 

unsafe because the bands used to secure the hose to the nipple cannot be tested for torque. She 

believes that a clamping system that uses bolts that can be tightened with a torque wrench and 

tested periodically provides a greater measure of safety. She relies on the testimony of Messrs. 

Singh and Ferlich. The Secretary contends that the individual who installs the bands around the 

hose to secure the nipple can only guess if the bands are tight enough through visual examination 

and by the "feel" as they are installed. She maintains that one never knows whether the bands are 

correctly installed and mistakes can be made. With a bolting system, on the other hand, the 

torque can be tested to make sure that the coupling is secure. 

Getchell argues that, in fact, the banding system is easier to install and is less prone to 

human error. Bolts can become loose over time and visual examination will not detect the 

problem. Bands, on the other hand, cannot loosen and can be checked with a visual inspection 

without the use of special tools. Getchell produced evidence to support its position, including the 

testimony of Michael Pfister, Vice President and General Manager of Punch-Lok. His company 

manufactures several types of coupling devices including band clamps. He testified that it is easy 

to determine whether band clamps have been properly attached and tightened to a nipple 

assembly. (Tr. 358). He recommends using band clamps in this type of application rather than 

swaged or bolted systems. (Tr. 356-62).2 

2 Mr. Pfister sits on the standards committee of the National Association of Hose and 

Accessory Distributors. (Tr. 321 ). In developing standards for industrial hoses, the committee has 

determined that nipple assemblies will be allowed in compressed air systems. (Tr. 355-56). 

515 
I find that this dispute is largely irrelevant. The issue is not whether a system using 

bolted connectors are safer or less prone to human error than a banded system; the issue is 

whether Getchell's system exceeded the design capacity intended by the manufacturer. 

As part of its defense in this case, Getchell sent a sample of its nipple assemblies to 

Michael Fourney, a registered professional mechanical engineer, for testing. Each nipple 

assembly consisted of a combination nipple that had been inserted into a section of bull hose and 

secured with three band clamps. This is the type of installation that is typically used by Getchell. 

Mr. Fourney subjected the assemblies to a number oftests. He pressurized the assemblies with 

gas in his laboratory to determine at what pressure they would fail. (Ex. C-9). He also 

performed these tests with water. He ran tests with only one or two band clamps securing the 

hose as well. 

The lowest level of pressure at which a nipple assembly with three band clamps failed 

was 1000 psi. (Ex. C-10). With two bands, failure occurred as low as 700 psi; and with one 

band failure occurred as low as 450 psi. Getchell contends that these results demonstrate that its 

use of the combination nipple at 118 psi did not exceed the design capacity intended by the 

manufacturer. 

If the Secretary establishes the design capacity intended by the manufacturer, independent 

testing performed by a mine operator would be largely irrelevant. In this case, however, Mr. 

Fourney's tests provide some support for my holding that the Secretary did not establish a 

violation. 

The Secretary produced evidence that, at the connection in question, only one band clamp 

or perhaps two band clamps were securing the hose to the nipple. Only one clamp was found at 

the accident site; Mr. Crowley testified that he believes that there was only one clamp, and there 

were only two clamps present on the nipple assembly at the north end of the bull hose. Getchell 

maintains that the Secretary's evidence is insufficient to establish that less than three were 

present. 

On reviewing the record as a whole, I find that it has not been established that there was 

only one band clamp present. The combination nipple was damaged as it whipped about the 

haulageway following the accident. Parts were strewn all over the area. The area was very 

muddy and clamps could have been lost. Because the nipple assembly was not a suspected cause 

of the accident, an exhaustive search for band clamps was not undertaken. Mr. Crawley was not 

asked about the number of bands on the cited nipple assembly until two days before the hearing. 

There was no real effort to look for the clamps on the scissors lift in the area. The fact that only 

one was found does not establish that there were not more clamps securing the nipple. 

Mr. Crowley testified that he thought he saw only one band clamp on the day of the 

accident. (Tr. 167-69). I find that he was a credible witness and I do not question his integrity or 

honesty. Nevertheless, the events that occurred on that day were very traumatic and his memory 

on this issue may not be accurate. Consequently, whether there were less than three band clamps 

516 
at the cited nipple assembly has not been established. There.well could have been two clamps 

since two were installed on the other end of the bull hose and these assemblies are put together 

on the surface. It is important to recognize that the Secretary did not base her allegations in the 

order of withdrawal on the number of band clamps on the nipple assembly. 

My holding would be the same if two clamps were present, although I note that there is a 

smaller margin of safety as the number of band clamps decreases. Mr. Fourney testified that with 

compressed air systems, one should divide the test results by four to provide a working pressure 

that is safe to use. (Tr. 404-06). With three band clamps, the working pressure would be 340 

psi; with two band clamps, the working pressure would be 230 psi; and with one band clamp, the 

working pressure would be 120 psi. Id. The compressed air system normally operates at 118 

psi, but excursions above that pressure are possible. Since Mr. Foumey sampled only a small 

number of nipple assemblies, his results are not exact. 

The safety standard provides that there is a violation only if the mine operator uses the 

equipment beyond the design capacity intended by the manufacturer and such use may create a 

hazard to persons. IfI had deferred to the Secretary's interpretation of the standard and 

determined that Getchell's use of the nipple assembly was beyond the design capacity of Dixon's 

combination nipple, I would still find that a violation was not established. The record does not 

show that Getchell's nipple assembly creates a hazard to persons. 

There is no question that compressed air systems have seriously injured miners at the 

nation's mines. (Ex. S- 15). Given the testimony in this case, however, it has not been 

established that a properly assembled and installed nipple assembly creates a hazard to miners at 

the Turquoise Ridge Mine. If a given nipple assembly is improperly "manufactured" by 

Getchell, it would likely violate section 57.14100(b). 

ID. ORDER 

For the reasons set forth above, the notice of contest in this case is GRANTED and Order 

of Withdrawal No. 7966725 issued on March 5, 1999, is VACATED. 

Richard W. Manning 

Administrative Law Judge 

517 
Distribution: 

Laura E. Beverage, Esq., and L. Anthony George, Esq., Jackson & Kelly, 1660 Lincoln Street, 

Suite 2710, Denver, CO 80264 (Certified Mail) 

Susan Gillett Kumli, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson St., 

Suite 1110, San Francisco, CA 94105-2999 (Certified Mail) 

RWM 

518 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 Skyline, Suite 1000 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEHALF OF 

RODNEY E. STEPHENS, 

Complainant 

v. 

CYPRUS PLATEAU MINING CORP., 

Respondent 

May 27, 1999 

TEMPORARY REINSTATEMENT 

Docket No. WEST 99-262-D 

MSHA Case No. DENV CD 99-07 

Willow Creek 

Mine ID 42-02113 

DECISION 

AND 

ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, 

Colorado, for Complainant; 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., Pittsburgh, Pennsylvania, for 

Respondent. 

Before: Judge Hodgdon 

This case is before me on an Application for Temporary Reinstatement filed by the 

Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), on 

behalf of Rodney E. Stephens, pursuant to section 105(c) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815(c). The application seeks reinstatement of Mr. Stephens as an 

employee of the Respondent, Cyprus Plateau Mining Corporation, pending a decision on the 

Discrimination Complaint he has filed against the company. 1 A hearing was held on the 

application on May 20, 1999, in Salt Lake City, Utah. For the reasons set forth below, I grant the 

application and order Mr. Stephens' temporary reinstatement. 

1 The Secretary has not yet filed a Complaint of Discrimination with the Commission . 

519 
Summary of the Evidence 

On December 8, 1998, Stephens filed a discrimination complaint with MSHA alleging 

that he had been discharged on November 11, 1998. In the Summary of Discriminatory Action 

he stated: 

On August 19th 1998 Cyprus Amax took me off of mine 

examiner (fire boss) because I was putting violations in the Week 

Book. I had been battling with the company over rock dust in 

returns, hydrocarbons not being taken care of in the mine, was 

being pumped outside with the discharge water [sic]. Standing 

water where I would have to go physically put in pumps to take 

care of the problem in the main escape ways out of the mine [sic]. 

Stephens testified that he had worked for Cyprus Plateau since 1990 and began working 

at the Willow Creek mine in 1996. In August 1998 he was working as a Mine Examiner, also 

known as Fire Boss. In this position, he was required to examine the intakes, returns, entries and 

other areas where people worked and to take gas and air readings. He recorded his findings in 

the mine's preshift and weekly examination books. 

On August 19, 1998, he was reassigned from Mine Examiner to the crib crew. It was 

Stephens' belief that this occurred for the reasons he set out in his complaint. He elaborated at 

the hearing that he was "very vocal" that the company had to "have an adequate bleeder system" 

to get rid of the gas in the mine and that he complained about not keeping up with the rock 

dusting necessary to dilute the float coal dust in the mine. (Tr. 82.) He testified: ''I believe that 

the company was waiting to try to find something to get me out of the way so I wouldn't bother 

them about the conditions of the mine." (Tr. 115.) 

Stephens was discharged by the company on November 11, 1998. In his opinion, this 

was a culmination of all the complaints he had made about unsafe things in the mine. He 

claimed that he was discharged because "I was a trouble maker ... I complained too much about 

safety violations.JI (Tr. 118.) 

The company presented the testimony of.Kimberly Coleman, Human Resources 

Assistant, and Jerry H. Fortson, Human Resources Manager. They testified that Stephens was 

reassigned from his Fire Boss position as the result of a sexual harassment complaint made 

against him. They determined after investigating the complaint that it was valid, and by 

reassigning him, among other things, he was removed from coming in contact with the woman 

making the complaint.2 As a result ofthis complaint, Stephens was informed that any future 

violations of company rules would result in his termination. (Resp. Ex. A.) 

2 He continued to receive the same pay he had been making as Fire Boss. 

520 
Victor H. Ewell, Shift Foreman, and Fortson testified that Stephens was terminated 

because he subsequently violated safety rules. Specifically, when directed to do so in his 

capacity as fill-in crib crew foreman, they alleged that he did not adequately determine whether a 

member of his crew had been task trained on operating a scoop, that two days later he committed 

a safety violation himself by leaving a scoop running and unattended, and while being questioned 

about that, he allowed the crew member, who it turned out had not been task trained, to drive a 

can setter out of the mine. 

Stephens averred that the sexual harassment and the safety violations were pretexts for 

getting rid of him. 

Findings of Fact and Conclusions of Law 

Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the 

Secretary shall investigate a discrimination complaint "and if the Secretary finds that such 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint." The Commission has provided for this procedure with Rule 45, 29 C.F.R. 

§ 2700.45. 

Rule 45(d), 29 C.F.R. § 2700.45(d), states that: 

The scope of a hearing on an application for temporary 

reinstatement is limited to a determination as to whether the 

miner's complaint was frivolously brought. The burden of proof 

shall be upon the Secretary to establish that the complaint was not 

frivolously brought. In support ofh[er] application for temporary 

reinstatement, the Secretary may limit h[ er] presentation to the 

testimony of the complainant. The respondent shall have an 

opportunity to cross-examine any witnesses called by the Secretary 

and may present testimony and documentary evidence in support 

of its position that the complaint was frivolously brought. 

Thus, the issue at hand is not to determine whether or not Stephens was discriminated against, 

but rather to determine whether his complaint "appears to have merit." Jim Walter Resources v. 

FMSHRC, 920 F.2d 738, 747 (11th Cir. 1990). I conclude that it does. 

Taken in their best light, Stephens' claims of protected activity are vague and sketchy. 

However, if they are found to be credible and if it is determined that there is a connection 

between them and his discharge, then he would be entitled to relief under the Act. Stephens' 

testimony was not inherently incredible, nor was any evidence presented that he was unworthy of 

belief. 

521 
The company's evidence indicates that it may well have a valid defense to Stephens' 

claims, but that was not the issue in this proceeding. The conflicts between Stephens' assertions 

as to what occurred and the company's raise credibility issues which arise in any case. By itself, 

this evidence does not demonstrate that his claim is frivolous or clearly without merit. 

Furthermore, it is apparent that a deterinination on the merits is not contemplated in a temporary 

reinstatement hearing by the express limitation of the scope of the hearing and by the fact that the 

Secretary can limit her case to the testimony of the Complainant. As Chairman Jordan and 

Commissioner Marks have stated: "The Secretary should not, at this juncture, be expected to 

present that which is necessary to prove that a violation occurred, or to prove that retaliatory 

animus existed." Secretary on behalf of Markovich v. Minnesota Ore Operations, USX Corp., 18 

FMSHRC 1349, 1352-53 (August 1996). 

In a temporary reinstatement proceeding, Congress intended that the benefit of the doubt 

should be with the employee rather than the employer, because the employer stands to suffer a 

lesser loss in the event of an erroneous decision since he retains the services of the employee 

until a final decision on the merits is rendered. Jim Walter Resources at 7 48 n.11. Accordingly, 

I conclude that Stephens' discrimination complaint has not been frivolously brought. 

Order 

Rodney E. Stephens' Application for Temporary Reinstatement is GRANTED. The 

Respondent is ORDERED TO REINSTATE Mr. Stephens to the position he held on 

November 11, 1998, or to a similar position, at the same rate of pay and benefits, 

IMMEDIATELY ON RECEIPT OF TIDS DECISION. 

1r~~ Administrative Law Judge 

Distribution: 

Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202-5716 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll Professional Corporation, One Oxford Centre, 301 

Grant Street, 201

h Floor, Pittsburgh, 15219-1410 (Certified Mail) 

/nj 

522 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 28, 1999 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

CIVIL PENAL TY PROCEEDING 

Docket No. VA 98-68 

A. C. No. 44-06227-03583 

v. 

BEAR RIDGE MINING, INC., 

Respondent No. 1 Mine 

Appearances: 

Before: 

DECISION 

Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor, 

Arlington, Virginia, on behalf of Petitioner; 

Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, Abingdon, Virginia, 

on behalf of Respondent. 

Judge Melick 

This case is before me upon the Petition for Civil Penalty filed by the Secretary of Labor 

pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, 

et seq., the "Act," charging Bear Ridge Mining Inc. (Bear Ridge) with one violation of the 

mandatory standard at 30 C.F.R. § 75.202(a) and seeking a civil penalty of $40,000.00 for that 

violation. The general issue before me is whether Bear Ridge committed the violation as alleged 

and, if so, what is the appropriate civil penalty to be assessed considering the criteria under 

Section 11 O(i) of the Act. 

The citation at issue, No. 7293918, alleges as follows: 

The mine roof in the area of the left coal rib, located approximately 70 feet 

inby survey station No. 2156, in the No. 6 entry on the 001-0- MMU, was not 

supported or otherwise controlled to protect persons from hazards related to falls 

of the mine roof. The Section Foreman removed three wood cribs using a rubber 

tired battery powered scoop. After the cribs were removed no action was taken to 

support or otherwise control the mine roof in the area of the left coal rib prior to 

the foreman and one other person working in the area. The foreman received fatal 

injuries when struck by a section of the mine roof 44" by "58 by 8" that fell in the 

area where the cribs had been removed. 

523 
The cited standard, 30 C.F.R. § 75.202(a), provides that 11 [t]he roof, face and ribs of areas 

where persons shall work or travel shall be supported or otherwise controlled to protect persons 

from hazards related to falls of the roof, face or ribs and coal or rock bursts. 11 

On March 23, 1998, at approximately 4:30 p.m., Bear Ridge section foreman Bruce 

Bandy was killed by a rock fall from the mine roof along the left rib of the No. 6 entry. Several 

days earlier, on March 17, David Elswick, a roof control specialist for the Virginia Department 

of Mines, Minerals and Energy (DMME), was investigating an earlier roof fall at the subject 

mine at the right crosscut of the same No. 6 entry. During the course of his investigation 

Elswick noted that there were five cribs on the right side of the No. 6 entry with some additional 

cribs on the left side. After evaluating the roof in the right crosscut off the No. 6 entry with state 

mine inspector Altizer, roof control specialist Kenneth Shortridge from the Federal Mine Safety 

and Health Administration (MSHA), mine superintendent Tim Lowe and two miners' 

representatives, it was initially decided to clean the crosscut through the No. 6 entry. Because of 

concerns of another state inspector it was then decided to cut through the No. 5 crosscut after 

rehabilitating the roof in both the No. 5 and 6 entries, It was also agreed that eight-foot point 

anchor roof bolts would be installed before the No. 5 crosscut would be cut through. In addition, 

it was decided by the group that additional cribs would be added in the intersection before cutting 

through the No. 5 crosscut. In this regard Elswick suggested that the left side cribs in the No. 6 

entry could be used and reset in the intersection prior to cutting through the No. 5 crosscut. 

Elswick specifically recalls examining the area near the cribs for draw rock and found nothing 

abnormal. No one from the group dissented from this plan, including the removal of the left side 

cribs in the No. 6 entry, and Elswick therefore assumed that everyone had agreed to it. 

Elswick returned to the same area following the fatal rock fall on March 23rd to secure 

the area. He was satisfied that the roof was adequately supported because the eight-foot roof 

bolts had been installed. Elswick opined that the roof was adequately supported even without 

cribs. The DMME did not issue any warnings or citations as a result of the fatal rock fall. In 

particular, Elswick concluded that there was nothing wrong with removing the cribs on the left 

side of the No. 6 entry as the deceased had done. Indeed, Elswick did not believe that a 

reasonably prudent person would have done anything <different from the procedures followed by 

Bandy. Moreover, he saw nothing on his earlier visit on March 171

h that would have warranted 

not removing the cribs. 

Michael McGlothlin, a continuous mining machine helper, while employed by Bear 

Ridge only since 1997, has been a miner for 18 years. He is a certified mine foreman but at the 

time of the accident was working as a miner helper on the second shift under the deceased, 

foreman Michael Bandy. According to McGlothlin, Bandy was the "safest boss" he had ever 

worked for. Bandy had arrived earlier on the scoop. Three sets of cribs along the left side of the 

No. 6 entry were to be removed. According to McGlothlin he and Bandy both examined the roof 

before removing the first crib. Bandy then pushed it away and sat for 20 to 30 seconds in the 

scoop looking at the top again before repeating this procedure. Bandy examined the roof while 

seated on the scoop and then, off the scoop, from the side of the scoop. McGlothlin also moved 

524 
inby the scoop and from that position again looked at the roof. He found no ind!cation that any 

rock would fall. After the first blocks were removed he and Bandy talked for a while and 

continued watching the top. McGlothlin threw some of the blocks aside. They both continued 

to look at the roof and saw nothing to indicate an imminent rock fall. McGlothlin agreed that the 

roof was "bad" but it had been double bolted and he determined that it was supported. 

McGlothlin also testified that none of the slips that were in the roof extended into the area where 

the rock fell. According to McGlothlin Bandy did nothing that was substandard either in his 

observations of the roof or removal of the cribs. In addition he concluded that sounding the roof 

would not have disclosed the rock fall because the entire top sounded drummy. McGlothlin did 

not hear the roof "working" priqr to the rock fall and there was no flaking or popping. It was 

after Bandy had again examined the top, moved to the side of the scoop and looked again before 

he picked up some blocks and the rock fell. 

This Commission in Secretary v. Canon Coal Company, 9 FMSHRC 667, 668 (April 

1987) stated in reference to the proper method of interpreting the nearly identical language of 

predecessor 30 C.F.R. § 75.200, that questions of liability must be resolved by reference to 

whether a reasonably prudent person, familiar with the mining industry and the protective 

purpose of the standard, would have recognized the hazardous condition that the standard seeks 

to prevent. More specifically the Commission stated that the adequacy of particular roof support 

or other control must be measured against the test of whether the support or control is what a 

reasonably prudent perso~ familiar with the mining industry and protective purposes of the 

standard, would have provided in order to meet the protection intended by the standard. The 

Commission further emphasized that the 11reasonably prudent person test" contemplates an 

objective, not subjective, analysis of all the surrounding circumstances, factors, and 

considerations bearing on the inquiry at issue. See also, Secretary v. Harlan Cumberland Coal 

Co., 20 FMSHRC 1275, 1277 (December 1998). 

Within this framework I note that the two persons most qualified to meet the reasonably 

prudent person test were the deceased Michael Bandy and miner operator helper Michael 

McGlothlin. These were the only persons in a position to make a timely and objective analysis 

of the surrounding circumstances relevant to an appropriate inquiry of the roof conditions at the 

time of the rock fall. In this regard I accord McGlothlin's testimony significant weight. He is a 

certified mine foreman with 18 years mining experience. Both he and the deceased, also a mine 

foreman, were well-qualified by experience and observations to have properly assessed the roof 

conditions immediately before the roof fall. They both examined the subject roof from several 

different perspectives and concluded that it was adequately supported before Bandy proceeded 

beneath the area that fell. 

Other roof control experts also testified concerning conditions at various times before and 

after the rock fall and corroborate McGlothlin's observations. MSHA roof control specialist 

Harold Musik was at the scene shortly after the fatal rock fall and found that the roof was 

"supported." Indeed, he found that the original four-foot roof bolts inserted according to the roof 

control plan plus the rebolting bolt-for-bolt with eight-foot roof bolts constituted "intense" 

control. Musik opined that even when a roof is intensely supported as it was here you 

nevertheless can have a rock fall. He found no indications that the rock would have been 

525 
observably loose before it fell. Moreover, Musik found nothing that would indicate that Bandy 

did anything substandard. 

MSHA mining engineer Linda Hrovatic also corroborated that the area around the fatal 

roof fall had been heavily bolted and opined that the bolting had been in accordance with sound 

mining practices. Indeed, she concluded that the area was "supported roof." She saw nothing 

suggesting.that the rock would have been visible as a hazard before it had fallen. MSHA 

supervisor of inspectors, Larry Worrell, also confirmed that there had been substantial roof 

bolting in the area of the roof fall and that the bolting had been done in a workmanlike manner. 

He knew of no actions by Bandy that he considered negligent or not prudent. 

Finally, Virginia State mine inspector Daniel Altizer, who was at the accident scene that 

same night, observed that there were as many roof bolts in the affected area as he had ever seen 

anywhere. He also agreed that a "sound and vibration" method of roof testing was not necessary 

in that area since the roof conditions were known and the entire roof would sound drummy in 

any event. In sum, following the roof fall accident eight inspectors, supervisors and roof control 

experts from two regulatory agencies investigated the scene, six from MSHA and two from 

DMME, and three of those from MSHA and the two from DMME concluded that the No. 6 entry 

was fully supported even after the removal of the cribs. 

In reviewing the evidence I have noted the testimony of several of the Secretary's 

witnesses who now maintain that the procedures followed by foreman Bandy (in removing the 

cribs on the left side of the No. 6 entry before cutting the 5 right crosscut), were unsafe. 

However, it is apparent that this was not the Secretary's position before the fatal rock fall. It is 

clear from the credible evidence that the Secretary, through its agent, roof control specialist 

Shortridge not only acquiesced in, but affirmatively approved the precise procedures followed by 

Bandy now criticized by the Secretary. The testimony of DMME roof control specialist David 

Elswick is particularly probative in this regard. Elswick's credibility is unchallenged and his 

recollection is particularly convincing. As previously noted, Elswick testified that, following the 

March 16 roof fall in the 6 right crosscut, a group of state and federal roof control specialists met 

on March 17th and agreed, without dissent, to the precise procedures followed by Bandy on 

March 23rd. Elswick's testimony is not only credible in itself but is fully corroborated by the 

testimony of mine superintendent Tim Lowe, who was also present when this agreement was 

reached. 

While the Secretary also appeared to question the recollection of these witnesses 

regarding the existence of three sets of cribs along the left side of the No. 6 entry on March 171

11, 

Elswick, Lowe and Daniel Houchins, an employee of Bear Ridge and union committeeman, all 

testified as to the existence of cribs on both the right and left side of the No. 6 entry on the 171

h of 

March. In addition, Brian Salyers, another Bear Ridge employee, testified that he had helped 

build the three sets of cribs along the left side of the No. 6 entry. He felt that the area had been 

properly supported once the supplemental eight-foot roof bolts had been inserted. Salyers, who 

is also a certified mine foreman, further testified that it was common practice to remove cribs 

prior to cutting through. He also opined that Bandy, who he knew very well, was probably the 

safest person he had ever worked with. He agreed that it would d9 no good to sound the roof in 

526 
this area since the entire roof would have sounded drummy. He agreed that once the eight-foot 

bolts had been inserted, the roof was indeed "supported." He further testified that there were no 

cracks in the roof on the left side of the No. 6 entry at the time they installed the cribs on March 

l61h or J71h. He specifically recalled that the arrangement with the state and Federal inspectors, 

including MSHA Inspector Shortridge, was that once they rebolted the No. 6 entry they would 

then remove the three cribs on the left side before cutting through the crosscut. 

On the day of the accident, Salyers was in the area before the fall at I 0 or 11 a.m. He 

checked the three cribs on the left side of the No. 6 entry and checked the top. He tapped the 

wedges on the cribs with a hammer and indeed found that there was no weight on them. He saw 

no unusual hazard. He concluded that even had the cribs been removed, the roof was adequately 

supported because of the insertion of the eight-foot roof bolts. It was his opinion that the cribs 

on the left side were no longer necessary once the eight-foot bolts had been inserted. Under all 

the circumstances I give but little weight to Inspector Shortridge's absence of a recollection of 

the cribs on the left side of the No. 6 entry. 

The Secretary also claims that Bandy was negligent and did not act prudently when he 

failed to "sound" the roof in the vicinity of the rock fall. However, as noted, the overwhelming 

credible evidence is that such efforts would have been futile and likely to have been a reckless 

and dangerous act in itself. Indeed, the credible evidence is that not even the MSHA inspectors 

and investigators themselves sounded the roof while in this area. The roof was admittedly in bad 

condition and it has been established by credible evidence that the entire roof would have 

sounded drummy in any event. 

Within the above framework of evidence it is clear that the Secretary has failed to sustain 

her burden of proving a violation as charged. The overwhelming weight of credible evidence, 

based on the testimony of reasonably prudent persons, is that the existing roof control met the 

protective requirements of the cited standard. 

ORDER 

Citation No. 7293918 is hereby vacated. 

527 

OaryMel ~ / 

Admlnistra~ve 'Y.w Judge 

l 
Distribution: (Certified Mail) 

Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., 

Suite 400, Arlington, VA 22203 

Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P.O. Box 2288, Abingdon, VA 24212 

\mca 

528 
ADMINISTRATIVE LAW JUDGE ORDERS 
.. . 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., 6f° FLOOR 

WASHINGTON ,D. C. 20006-3868 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

PHOENIX ASSOCIATES LAND 

SYNDICATE, 

Respondent 

May 3, 1999 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 99-148-M 

A. C. No. 16-01192-05508 

Docket No. CENT 99-149-M 

A. C. No. 16-01192-05509 

Murphy Sand & Gravel 

ORDER TO RESUBMIT PENALTY PETITIONS 

These cases are before me upon petitions for assessment of civil penalties under section 

105(d) of the Federal Mine Safety and Health Act of 1977. On February 26, 1999, penalty 

petitions were filed on behalf the Secretary which were answered by the operator on April 22, 

1999. 

I will not accept these penalty petitions. They have been filed on behalf of an individual 

who styles himself as a law clerk, but this "law clerk" did not sign the petition. In this case the 

law clerk did not even sign the petition. It is signed by an individual whose status and position 

are not given. In addition, the petitions contain the names of three Solicitors in ascending 

degrees of responsibility, but none of them has signed the motion. I have recently held that a law 

clerk from this regional office may not file settlement motions with the Commission. Bowen 

Industries. Inc., Docket No. CENT 98-268-M, 21 FMSHRC , (April 26, 1999). These 

cases present a situation where the individual who signed the petitions is even further removed 

from an attorney who is entitled to appear. 

Commission Rule 2700.3, 29 C.F.R. § 2700.3, sets.forth the individuals and categories of 

individuals who are permitted to practice before the Commission. Under subparagraph (a) 

attorneys are permitted to practice and under subparagraph (b) a non attorney may practice if he 

is a party, a representative of miners or certain designated individuals associated with specified 

entities. The law clerk on whose behalf the petitions were filed is not an attorney and is not one 

of the described non attorneys allowed to appear before the Commission. And the person who 

signed the petitions is a fortiori unacceptable and unqualified. Subparagraph ( c) permits any 

other person to practice with the approval of the presiding judge or the Commission. My 

approval has not been sought for the appearance of the law clerk. Nor has my approval been 

sought for the appearance of the individual who signed the petition but whose position and 

responsibilities are completely unknown to me. 

529 
The filings from the Dallas Office of the Solicitor are in contrast to procedures previously 

followed by the national Office of the Solicitor in seeking permission for non attorneys to appear 

before the Commission. In 1994, when the Office of the Solicitor wished to have Conference 

and Litigation Representatives (CLR) appear on behalf of the Secretary in mine safety cases, 

information was furnished regarding the training and credentials of these individuals. Cyprus 

Emerald Resources Corp., 16 FMSHRC 2359 (November 1994). The very substantial experience and training of CLRs entitled them to appear before the Commission. Moreover, in every 

cas~ where a CLR wishes to represent the Secretary, he has filed a motion for permission to 

appear. 

The petitions filed in these cases must be refiled and signed by an attorney in the Office 

of the Solicitor. Otherwise a show cause order will be issued why these cases should not be 

dismissed for want of prosecution. 

These unauthorized filings connote a serious lack of respect for the Commission which I 

find very disturbing. Any office that submits such pleading obviously attaches little importance 

to penalty cases under the Mine Act. 

In light of the foregoing, it is ORDERED that within 21 days of the date of this order the 

penalty petitions be resubmitted and signed by an attorney in the Office of the Solicitor. 

---

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

Brian L. Pudenz, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX 75202 

Tom Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, Room 420, 4015 

Wilson Boulevard, Arlington, VA 22203 

Mr. Paul Alonzo, President, Phoenix Associates Land Syndicate, P. 0. Box 1358, Covington, LA 

70433 

/gl 

530 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 5, 1999 

CIVIL PENAL TY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VA 98-39 

A. C. No. 44-06795-03524 

v. 

Sargent Hollow Mine 

ANR COAL COMPANY LLC, 

Respondent 

ORDER DENYING MOTIONS FOR 

SUMMARY DECISION 

AND 

NOTICE OF HEARING 

In this civil penalty proceeding brought under section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (30 U.S.C. § 815(d) (the Act)), the Secretary of Labor (Secretary) on 

behalf of her Mine Safety and Health Administration (MSHA) seeks the assessment of civil 

penalties against ANR Coal Company (ANR or the company) for three alleged violations of 

mandatory safety standards for underground coal mines. The Secretary charges the violations 

occurred at the company's Sargent Hollow Mine, an underground bituminous coal mine located 

in Wise County, Virginia. The Secretary proposes total civil penalties of $824. 

In answering the petition, ANR denies the violations or in the alternative argues that if 

they did occur, the inspector's findings regarding negligence and gravity are wrong. 

The case was scheduled to be heard and the parties engaged in prehearing discovery, 

, including the deposition of potential witnesses. Shortly before the hearing counsels advised me 

they intended to submit the case for summary decision. Counsels then filed stipulations, cross 

motions for summary decision, and replies. 

THE CONTROVERSY'S BACKGROUND 

Although three violations are charged in the case, the parties are at odds over only one --

531 
an alleged violation of 30 C.F.R. §75.334(b)(l) set forth in Citation No. 4566305. 1 As explained 

more fully below, section 75.334(b)(l) requires in areas where pillars are being recovered that 

the operator ventilate the areas with a bleeder system that will "continuously dilute and move 

methane-air mixtures away from active workings and into a return air course". The Secretary 

maintains ANR failed to comply with this requirement in that "methane being liberated on 

the ... 001 ... section [was] not being diluted, rendered harmless, and carried away during 

normal production operations" (Stip. 46; see also Gov. Exh. 1). 

TBEFACTS 

The parties' agreements with regard to the relevant facts are set forth in 49 stipulations. 

They establish that between March 8, J 999, and the late night-early morning hours of 

March 13-14, methane exceeded 1 % of the mine atmosphere in the No. 10 entry on the 001 

section on four occasions - March 8, March 10, March 12, and March 13-14 (Stips. 13 - 16). 

They also establish that on each of these occasions management authorities made adjustments to 

the ventilation and that the methane levels soon fell to under 1 % (Id.). 

Around 9:30 p.m. on March 14, the roof fell in an area of the section where five or six 

pillars had been previously mined and a crack developed in the roof outby the pillar line in the 

No. 10 entry. The section foreman detected methane of up to 5%. Most of the methane seemed 

to be coming from the crack and the surrounding area (Stip. 18). The section foreman shut off 

the power, de-energized the equipment and withdrew the men. He also adjusted the ventilation 

in order to dilute the methane (Stips 19-20). 

About an hour and ten minutes after the roof fell, MSHA Inspector Charles Reece arrived 

at the mine to conduct an inspection. Reece went to the No. 10 entry and he too detected 

methane coming from the crack and adjacent area. He measured the methane and found it had 

reached levels of 10% or more. Therefore, at about 11 :30 p.m., Reece issued an imminent 

danger order of withdrawal under section 107(a) of the Act (30 U.S.C. §817(a)). The order 

required the withdrawal of miners from the entire mine (Stips 22, 24-25; Gov. Exh. 7). Reece 

then left the mine. 

Approximately an hour after the order was issued, ANR's Manager of Mine Operations, 

Paul Campbell, anived and went underground. Campbell knew the mine had been encountering 

methane due to the mining method the company was utilizing (Stip. 30). Campbell went to the 

No. 10 entry where he hung a curtain to redirect the air and to facilitate sweeping the methane 

from the entry. The methane was diluted to acceptable levels within 10 minutes. Campbell also 

'The parties agree that ANR will pay in full the proposed penalties for the violations 

alleged in the other two citations (Stips. 48, 49). The agreement effectively settles the parties' 

differences regarding the two citations, and I wiil approve the settlement when I issue a final 

decision and order in this case. 

532 
adjusted the ventilation outby the No. 10 entry. All of this work was completed within 

approximately six hours of the fall, and once it was completed, no methane was detected in the 

entry (Stips. 26, 30). 

Campbell expected that the imminent danger order would be terminated. After it was, he 

intended to resume mining in the No. 10 entry. However, he did not plan to begin where mining 

had left off. Rather, he decided he would leave the curtain in place and pull back several pillars 

so that mining would resume several breaks outby the area last mined (Stip. 29). Campbel] then 

left the mine. When he returned after daybreak on March 15, he found that methane levels in the 

No. 10 entry measured at most a few tenths of one percent. The levels were acceptable 

(Stips. 29, 31). 

On the afternoon of March 15, Inspector Reece came back to the mine. He was 

accompanied by two other inspectors, Douglas Carico and James Hicks. The inspectors talked to 

Campbell about what ANR had done to adjust the ventilation. Campbell believed he also told 

them about his plan to resume mining several blocks outby the area last mined. However, neither 

Reece nor Hicks remembers Campbell discussing the subject (Stip. 32-33). 

After talking to Campbell, the inspectors went to the 001 section. Reece and Hicks saw 

the curtain that Campbell had erected to help dilute the methane. It was on the left side, along 

the rib. To conduct pillar mining, the curtain had to be on the right side. Therefore, Reece and 

Hicks had the curtain taken down and re-erected as it would have been if mining had continued 

in the area. As soon as it was taken down and re-erected, methane levels increased to over 1 % . 

However, as long as the curtain remained where Campbell had positioned it, the methane levels 

were acceptable (Stip. 35). 

While the inspectors were underground they met Darrell Holbrook, the mine 

superintendent.2 The inspectors and Holbrook had occasion to visit the No. 6 entry of the 001 

section. Holbrook detected air moving from the gob into the entry. The air flow was opposite 

the direction it was supposed to move. The purpose of the bleeder system was to sweep methane 

and other gases into and over the gob and out the return. Air flowing from the gob into the entry 

meant that methane might be coming into the entry. However, Holbrook detected only .2% 

methane in the No. 6 entry. This was an acceptable level. Holbrook suggested to Hicks that he 

erect a curtain in the No. 6 entry to insure air would flow from the entry into the gob, and Hicks 

said that was not a big concern and the condition was not a violation (Stip. 37). 

2

In addition to meeting Holbrook underground, the inspectors met him again after they 

returned to the surface. Holbrook believes that during both meetings he told the inspectors that 

ANR was going to pull back several blocks before it resumed pillaring operations and that it was 

going to leave Campbell's curtain in place when it pulled back. Reece and Hicks do not recall 

discussing these matters with Holbrook (Stip. 36). 

533 
Reece too noted the direction of the air in the No. 6 entry. In his deposition Reece 

testified that the roof in the crosscut between the No. 6 and No. 7 entries had fallen "tight," 

meaning that it almost blocked the crosscut. Reece believed this was why the air was flowing 

from the gob into the entry. Reece testified this lead him to believe the bleeder system for the 

001 section was inadequate and that the volume of air on the section needed to be increased to 

"force" the air flow to change direction (ANR Exh. 1 at 44, 45, 65-67, 69-70). However, Reece 

made no specific references to the No. 6 entry when he issued Citation No. 4566305. 

While Reece and Hicks were in the No. 6 and No. 10 entries of the 001 section, Inspector 

Carico traveled to the bleeder entries on the back side of the gob and evaluated the bleeder 

system at its specified measurement locations. He found nothing to indicate the system was 

functioning improperly (Stip. 38). 

All of the inspectors and Holbrook returned to the surface and Hicks called the MSHA 

office. Hicks advised Holbrook that MSHA was not going to terminate the section 107(a) order 

as it related to the 001 section, although MSHA did agree to modify it so that mining could 

resume on the 002 section (Stip. 39). 

In an attempt to have the order terminated, ANR presented MSHA with a modified 

ventilation plan that indicated ANR would resume mining outby where the methane was detected 

in the No. 10 entry and that it would leave two rows of pillar blocks intact where the cracks 

emanating methane had formed. However, MSHA refused to terminate the order (Stips. 40-41). 

The agency feared the curtain positioned by Campbell would be knocked down by subsequent 

roof falls and the methane levels immediately would rise (~ ANR Exh. 1 at 53 ). Rather than 

delay production while it contested the order, the company chose to remove the equipment and 

seal the 001 section (Stip. 41). 

In the meantime, on March 16, Reece issued Citation No. 4566305 alleging a violation of 

section 75.334(b)(l). The citation states: 

The bleeder system for the second mined area (gob) of the ... 001 

... section is inadequate in that the methane being liberated on the 

... 001 ... section is not being diluted and rendered harmless, and 

carried away during normal production operations. Methane is 

presently being liberated through cracks and fissures in the mine 

roof in the No. 10 entry, 20 feet inby Survey Station No. 1850. 

This methane cannot be diluted, rendered harmless and carried 

away by the present bleeder system through normal ventilation 

methods and procedures. This citation was a factor that 

contributed to the Issuance of ... Order No. 4566579 dated 

4/14/98, therefore no abatement time was set (Gov. Exh. 1). 

534 
The citation and the order were terminated when the area was finally sealed (Stip 43; 

Gov. Exh. 7). 

SUMMARY DECISION 

Under the Commission's rules, a motion for summary decision shall be granted if the 

entire record shows: (1) No genuine issue as to any material fact, and; (2) The moving party is 

entitled to summary decision as a matter oflaw (29 C.F.R.§2700.67). Summary decision is only 

authorized "upon proper showings of a lack of a genuine, triable issue of material fact0 (Celotex 

Corp. y. Catrett, 477 U.S. 317, 327 (1986)). If material facts are disputed, incomplete, or 

missing, a hearing is necessary, but the hearing may be limited to the issues contingent upon the 

disputed, incomplete, or missing facts (29 C.F.R. §2700.67(d)). 

THE ISSUES 

The issues are whether the agreed upon facts establish a violation of section 75.334(b)(l) 

as set forth in Citation No. 4566305; or, if not, whether they preclude finding a violation. In 

order to resolve the issues it is necessary to understand the meaning of section 75.334(b)(l), 

which in turn requires a review of the standard's derivation. Also, it is necessary to understand 

the place of section 75.334(b)(l) in the regulatory scheme and the elements necessary to prove a 

violation of the regulation. 

SECTION 75.334(b)(l) 

Section 75.334(b)(l ) is a subsection of section 75.334, a regulation that mandates how 

areas where pillars have been and are being mined are to be ventilated. Section 75.334(b)(l) 

states in part: 

During pillar recovery a bleeder system shall be used to 

control the air passing through the area and to continuously dilute 

and move methane-air mixtures . . . from the worked-out area 

away from active workings and into a return air course or to the 

surface of the mine.[3] 

3

Neither the regulations nor the Dictionary of Mining. Mineral. and Related Terms 

(DMMRT) define "bleeder system". However, the DMMRT defines "bleeder entries" as "panel 

entries driven on a perimeter of a block of coal being mined and maintained as exhaust airways 

to remove methane promptly from the working faces to prevent buildup of high concentrations 

either at the face or in the main intake airways." It states that bleeder entries are "[w]idely used 

for draining methane in coal mines ... where the room-and-pillar method [of mining] is 

employed" (American Geological Institute DMMRT 451 (2nd ed. 1977) ). 

535 
Section 75.334 was promulgated in 1992 (57 FR 20869 (May 15, 1992)), and has 

remained in effect without substantive change (see 61 FR 9828 (March 11, 1996)). The section 

is derived from previous sections 75.328 and 75.329, and from ventilation plan approval criteria 

then found in section 75.316-2. In promulgating the standard, the Secretary stated that these 

predecessor standards "specif[ied] use of bleeder entries, bleeder systems or an equivalent means 

in pillared areas to control the accumulation of methane" (57 FR at 20866). The Secretary 

explained: 

During and after pillar recovery, methane ... is liberated from the 

coal and strata. When this occurs, bleeder systems route gases 

away from worked-out areas and areas where pillars are being 

mined. [Section 75.334] ... revises the requirements for bleeder 

systems and establishes ventilation standards for control of 

methane ... in worked-out areas and for areas where pillars are 

being mined. 

* * * * * * 

Where pillars are being fully or partially recovered, 

paragraph (b )(1) requires the bleeder system to be used to control 

the air passing through the area and to continuously dilute and 

move methane-air mixtures ... from the worked-out area away 

from active workings and into a return air course or to the surface 

.... MSHA generally consider[s] bleeders to be a system of 

entries that form special air courses designed, developed, and 

maintained to continuously move gases from retreat mining areas. 

* * * * * * 

[A]ny bleeder system used must continuously move gases 

from the mined-out area and away from active working into a 

return air course or to the surface (57 FR at 20886-87). 

The specifics of a bleeder system are determined on a mine-by-mine basis and are 

specified in the mine's approved ventilation plan (S7 F.R at 20886). This is because the system 

is tailored to the conditions in the particular mine. The system "[d]epend[s] on particular mining 

conditions" because"[ d]ifferent mines have different conditions and methane liberation rates" 

(ld.). The utility of the system is gauged by evaluating the system pursuant to section 75.364 (57 

FR at 20886), a regulation that states the frequency, type, and location of measurements that are 

made to establish the system's effectiveness. 

As the Secretary>s regulatory comments make clear, because the release of methane may 

be an unavoidable consequence of mining, especially during pillaring operations, the goal of the 

system is to reduce the level of methane on active workings by moving it out of the workings, 

into and over the gob, and out the return. Continuous movement of the gas is intended to keep it 

536 
from building to a hazardous level. However, the Act and the regulations also recognize that 

there may be instances when methane inevitably will build to hazardous levels and that these 

instances do not necessarily represent violations of the Act or its standards. 

In order to establish a violation of section 75.334(b)(l ), the burden is on the Secretary to 

show that a cited bleeder system did not continuously dilute and move methane-air mixtures 

away from the worked-out areas into a return air course or to the surface of the mine. One way 

the Secretary could meet this burden would be to show that the bleeder system ceased to 

function. For example, if the Secretary found methane in areas where pillars were being 

extracted and she also found no ventilation when she took measurements at the system's 

evaluation points, she could establish that methane was not being diluted and moved without 

interruption- that is, it was not being moved "continuously". However, violations such as this 

would be unusual because bleeder systems rarely stop working altogether. Rather than allege the 

system suffered a total breakdown, the Secretary's theory usually is that the bleeder system did 

not function effectively enough to meet the intent of the regulation. 

As stated previously, the Act and the regulations recognize the presence of methane may 

be inevitable when coal is mined, and that accumulations of methane do not represent per se 

violations of the regulations.4 Nevertheless, the Act and the regulations also recognize that there 

is a point at which methane becomes a potential hazard. Therefore, in addition to maintaining a 

bleeder system that continuously dilutes and moves methane, an operator is required to test for 

methane and to take action of reduce the level of methane when the tests show the methane at a 

level of 1 % or more(~ 30 C.F.R. §75.323). 

Section 75.334 (b)(l) does not specifically state methane is to be diluted so as to rendered 

it harmless, but such clearly is the standard's purpose. Considering a level of methane of I% or 

more to be an objective indicator that the system may not be "continuously dilut[ing] and 

mov[ing]" the gas is a reasonable interpretation of the standard. Therefore, a :finding of I% or 

more of methane may be a signal to a reasonable operator that adjustments are needed in the 

bleeder system to keep it effectively diluting and moving methane. If an operator fails to make 

such adjustments to the system (as opposed to palliative "fixes" to the individual incident or 

incidents of excessive accumulations), the operator may have violated the standard. 

In such a case, the existence of a violation ultimately turns upon whether the Secretary 

can establish that under all of the circumstances present a reasonable operator, familiar with the 

conditions in its mine, including but not necessarily limited to the miner's history of methane 

liberation and the capacity of its ventilation system, would have made adjustments to the miner's 

4

The Secretary has acknowledged this by noting that "Neither the Act nor the regulations 

provide that a mere presence of methane gas in excess of I[%]. .. is per sea violation" (U.S. 

Department of Labor, Mine Safety and Health Administration, V. Program Policy Manual 34 

(1996)). 

537 
bleeder system so as to ensure that methane continuously, and effectively, was diluted and 

moved away from active workings and into the return. 

THE SECRETARY'S MOTION AND THE STIPULATIONS 

Although the citation was issued on March 16, 1998, it was apparently based on 

conditions that existed from at least March 8, up to and following the roof fall of March 14 

(Reece Dep.17, 45, 59, 65-67). 

The Secretary states that "[t]he bleeder system ... that was in place on the 001 section 

allowed excessive levels of methane to be present on the active section on at least five occasions 

in the week prior to when . .. [the citation] was issued[,]" and argues therefore "[i]t was 

reasonable ... to expect that ... continued mining on the 001 section, without fundamental 

adjustments being made to the bleeder system, would have resulted in further instances of 

excessive levels of methane in the active areas of the section" (See's Mot. 5; see also See's Resp. 

1-2). Simply put, the Secretary maintains the instances of excessive methane '

1

demonstrate the 

bleeder system was not adequate to dilute and carry away the methane during ... normal 

operations'' (Sec. Resp. 4). 

To agree that the instances of methane (Stips. 13-16, 19, 24; Gov. Exh. 6) in and of 

themselves establish the bleeder system was not adequate, would be to make repeated instances 

of excessive methane tantamount to a violation, something which neither section 75.334 nor any 

other standard provides. While the instances of methane ~ be evidence that the system was 

not functioning as intended, they also ~ represent a series of singular occurrences that would 

not have alerted a reasonable mine operator of the need for adjustments in its overall bleeder 

system. 

The Secretary must present testimony from the inspector who issued the citation, and 

perhaps from others, as to why the methane accumulations found by the company and the 

inspector (see Reece dep. at 38-39, 45) indicate the bleeder system was not being maintained in 

compliance with section 75.334(b)(l). The Secretary also needs to establish clearly just when 

the violation came into existence and what caused the violation to exist at that particular time. 

Further, the inspector stated in his deposition that following the March 14 roof fall, the 

way the air moved in the No. 6 entry lead him to believe the bleeder system was inadequate 

(Reece Dep. 45). On the face of the citation there is no obvious link between the citation and the 

conditions in the No. 6 entry that the inspector referenced. If there is a link, the Secretary needs 

to present testimony establishing what it is. In other words, the Secretary needs to demonstrate 

that the conditions in the No. 6 entry were connected with the accumulations in the No. l 0 entry, 

if in fact they were, and why the conditions should have signaled to ANR that the bleeder system 

was inadequate. In so doing, it would behoove the Secretary to explain why Inspector Hicks told 

Holbrook the air on the No. 6 entry was "not a big concern" and the "condition was not a 

violation" (Stip. 37). 

538 
Because I cannot conclude the stipulations and supporting materials establish the alleged 

violation, the Secretary's motion for summary judgement must be denied. 

ANR'S MOTION AND THE STIPULATIONS 

Essentially, ANR argues that because in each instance it was able to reduce the 

concentration of methane to below 1 %, the bleeder system was adequate and did not fail. ("Each 

time an unacceptable level of methane was detected, the bleeder system carried away the 

methane in a matter of minutes. The bleeder system was adequate" (ANR Rep. 4, see also ANR 

Mot. 2-5).) In a variation on this theme, the company also asserts that because mine personnel 

were able to eliminate hazardous levels of methane in relatively short periods of time by 

adjusting existing curtains or by erecting new curtains, the system was doing what it was 

designed to do - move methane away from working places, into the gob, and out a return (ANR 

Mot. 4). Finally, it maintains the fact that the inspector detected air moving from the gob into the 

No. 6 entry is irrelevant. The company points out the inspector did not mention the condition in 

the body of the citation, nor did he mention it to anyone at the mine (Id. 8). 

Taken together, the company's arguments, the stipulations, and the supporting 

documents, do not preclude finding a violation. The allegation of a violation pertains to the 

bleeder control system. "The bleeder system for the second mined area (gob) of the ... 001 ... 

section is inadequate in that the methane being liberated on the ... 001 ... section is not being 

diluted, rendered harmless, and carried away during normal production operations" (Gov. 

Exh. I). The corrective measures instituted by ANR to eliminate individual instances of 

excessive methane did not necessarily affect the overall system. Conceivable there was a 

continuing defect in the entire system, despite the individual corrections. I cannot conclusively 

determine from the stipulations whether or not this was so. Further, the fact the methane levels 

were reduced by the adjustments does not answer the fundamental question of why they occurred 

in the first place, and the stipulations and supporting materials do not offer a definitive answer. 

Moreover, that the citation does not specifically reference the direction of air flow on the 

No. 6 entry does not mean that the information is irrelevant. After all, the citation charges the 

system was inadequate, and air flow on the No. 6 entry was part of the system. 

Nor can I find that conditions on the No. 6 entry should be excluded from consideration 

because they are not mentioned specifically in the citation. While it is true section 104(a) of the 

Act requires a citation to "describe with particularity the nature of the violation" (30 U.S.C. 

§8 14(a)), the purpose of this specificity requirement has been met in that the citation as worded 

allowed ANR to discern the conditions requiring abatement (Stip. 43), and is allowing ANR 

adequately to prepare for a hearing (see Cyprus Tonopah Mining Com., 15 FMSHRC 365, 379 

(March 1993)). 

Finally, because in deciding this case it will in all likelihood be important to determine 

whether given the conditions that existed at the mine a reasonable operator would have made 

539 
adjustments to the bleeder system, ANR may want to offer testimony explaining why, if its Mine 

Operations Manager knew before the events of March 13-14 that the mining method being 

utilized was likely to produce the methane levels that resulted (Stip. 30), it did not make changes 

in its bleeder system to prevent the hazard. 

RULING ON THE MOTIONS 

Because I cannot find the undisputed material facts establish that the bleeder system for 

the 001 section was not continuously diluting and moving methane-air mixtures away from 

active workings and into a return or to the surface, or that the undisputed material facts make 

such a finding impossible, the parties' motions for summary decision are DENIED. 

NOTICE OF HEARING 

The stay order entered in this case is DISSOLVED, and the parties are advised the matter 

will be CALLED FOR HEARING in Abingdon, Virginia at 8:30 a.m., on June 9-10, 1999.5 (A 

specific hearing location will be designated later.) Because many of the relevant facts have been 

stipulated, extensive testimony is unnecessary. Therefore, each side will be afforded four hours 

to present direct testimony regarding its case in chief. Cross examination will be limited to 40 

minutes per witness. Rebuttal will be limited to one hour. 

_j)w/rl~ David Barbour 

Administrative Law Judge 

5

In Consolidation Coal Company, 20 FMSHRC 227 (March 1998), the Commission 

divided equally over whether Commission Administrative Law Judge George Koutras properly 

held the Secretary did not prove a violation of section 75.334(b)(l), despite the fact methane 

accumulated on a pillar section to the point where a fatal explosion occurred (17 FMSHRC 1982 

(November 1995)). The result of the Commission's decision was to let the judge's decision 

stand as if affirmed. The decision was appealed to the United States Court of Appeals for the 

Fourth Circuit, and ANR requests that ifl believe the Commission's decision is not entitled to 

precedential benefit, I stay this matter until the Court rules (ANR Rep. 1). 

ANR's request is respectfully denied. Judge Koutras' decision was highly fact specific. 

It seems probable to me that the forthcoming decision of the Court of Appeals also will be fact 

specific, making it unlikely to provide any precedent directly applicable to this case. 

540 
Distribution: 

Robert S. Wilson, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Room 516, Arlington, VA 22203 (Certified Mail) 

Julia Shreve, Esq., Jackson & Kelly, 1600 Laidley Tower, P .0. Box 553, Charleston, WV 25322 

(Certified Mail) 

541 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W., 6Tn FLOOR 

WASHINGTON, D. C. 20006-3868 

SECRETARY OF LABOR 

MINE SAFETY AND HEAL TH 

Af?MINISTRATION (MSHA), 

Petitioner 

V. 

FORT WORTH CRUSHED STONE, 

IN CORPORA TED, 

Respondent 

May 7, 1999 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 99-162-M 

A. C. No. 41-02965-05517 FTE 

Cleburne Base 

ORDER TO RESUBMIT PENALTY PETITION 

This case is before me upon a petition for assessment of civil penalties under section 

105(d) of the Federal Mine Safety and Health Act of 1977. On March 15, 1999, a penalty 

petition was filed on behalf of the Secretary which was answered by the operator on April 26, 

1999. 

The penalty petition was filed by. an individual who styles herself as a law clerk. I have 

recently refused to accept penalty petitions and a settlement motion filed by law clerks from this 

regional office. Phoenix Associates Land Service Inc., 21 FMSHRC , (May 3, 1999); 

Bowen Industries. Inc., Docket No. CENT 98-268-M, 21 FMSHRC , (April 26, 1999). 

The petition filed in this case must be refiled and signed by an attorney in the Office of the 

Solicitor. Otherwise a show cause order will be issued why this case should not be dismissed for 

want of prosecution. 

In light of the foregoing, it is ORDERED that within 21 days of the date of this order the 

penalty petition be resubmitted and signed by an attorney in the Office of the Solicitor. 

- ~ \ 

Paul Merlin 

Chief Administrative Law Judge 

542 
Distribution: (Certified Mail) 

Thomas Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, Room 420, 4015 

Wilson Boulevard, Arlington, VA 22203 

Brian L. Pudenz, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, 

Suite 501, Dallas, TX 75202 

Mr. Fred H. Brown, President, Fort Worth Crushed Stone Inc., P. 0. Box 121906, Fort Worth, 

TX 76121 

/gl 

543 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730KSTREET, N.W., G'"FLOOR 

WASHINGTON, D. C. 20006-3868 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

RAYNE ENERGY INCORPORATED, 

Respondent 

May 12, 1999 

CIVIL PENAL TY PROCEEDING 

Docket No. PENN 99-147 

A. C. No. 36-00930-03604 

Rayne No. 1 

ORDER TO RESUBMIT PENALTY PETITION 

This case is before me upon a petition for assessment of civil penalties under section 

105(d) of the Federal Mine Safety and Health Act of 1977. On April 26, 1999, a penalty petition 

was filed on behalf of the Secretary which was answered by the operator on May 3, 1999. 

The penalty petition was filed by the Philadelphia Regional Counsel but was not signed 

by the Regional Counsel. Rather, an individual who styles herself as a "paralegal specialist" 

signed for the Regional Counsel. I have no idea who this "paralegal specialist" is or what her 

qualifications are. I have recently refused to accept a settlement motion filed by a paralegal from 

this regional office as well as penalty petitions and a settlement motion filed by law clerks from 

another regional office. Rayne Energy Inc., 21 FMSHRC __ ,(April 29, 1999); Phoenix 

Associates Land Service Inc., 21 FMSHRC , (May 3, 1999); Bowen Industries. Inc., 

Docket No. CENT 98-268-M, 21 FMSHRC (April 26, 1999). The petition filed in this 

case must be refiled and signed by an attorney in the Office of the Solicitor. Otherwise a· show 

cause order will be issued why this case should not be dismissed for want of prosecution. 

In light of the foregoing, it is ORDERED that within 21 days of the date of this order the 

penalty petition be resubmitted and signed by an attorney in the Office of the Solicitor . 

.. 

- Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

B. Anne Gwynn, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market Street, 

Gateway Building, Room 14480, Philadelphia, PA 19104 

Thomas Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Room 420, Arlington, VA 22203 

Joseph A. Yuhas, Esq., P. 0. Box 25;Bamesboro, PA 15714 

544 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEY ARD #280 

DENVER, CO 80204-3582 

303-844-3577/FAX 303-844-5268 

SECRETARY OF LABOR, MSHA 

on behalf of ALLEN HAMIL TON, 

Petitioner 

v. 

RONDY'S INC. d/b/a IDAHO LIME, a 

corporation, 

Respondent 

May 14, 1999 

DISCRIMINATION PROCEEDING 

Docket No. WEST 99-107-DM 

Lime Mountain Quarry 

ORDER DENYING MOTION TO DISMISS 

AND FOR SUMMARY DECISION 

Respondent filed a motion to dismiss this case on the grounds that: (1) the Secretary of 

Labor failed to notify Mr. Hamilton of her determination that Respondent violated section lOS(c) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) ("Mine Act"), within 90 

days ofreceipt of Mr. Hamilton's complaint of discrimination, as required by section 105(c)(3); 

and (2) the Secretary of Labor failed to file a discrimination complaint with the Commission 

within 30 days after her written determination that a violation occurred, as required by 29 C.F.R. 

§ 2700.4l(a). In the alternative, Respondent argues that it is entitled to summary decision on the 

same grounds. The Secretary of Labor opposes the motion. 

The essential facts are not in dispute. Mr. Hamilton filed his complaint of discrimination 

with the Department of Labor's Mine Safety and Health Administration ("MSHA") on or about 

August 13, 1997. He filed this complaint within 60 days of the alleged act of discrimination, as 

required by section 105(c)(2). By letter dated October 29, 1998, counsel for the Secretary 

notified Respondent and Mr. Hamilton ofMSHA's belief that Respondent had terminated Mr. 

Hamilton from his employment in violation of section I 05( c ). In the letter, counsel suggested 

that the parties attempt to settle the matter. The case did not settle and, after a change in the 

Secretary's counsel, a formal complaint of discrimination was filed with the Commission on or 

about January 22, 1999 . 

. It is clear that the Secretary violated section 105(c)(3) of the Mine Act by failing to notify 

Mr. Hamilton of her "determination whether a violation ... occurred" within 90 days of receipt of 

his complaint. It is also clear that this time-frame is not jurisdictional. The legislative history of 

the Mine Act states that the deadlines imposed on the Secretary in section lOS(c) are not 

jurisdictional and that the failure of the Secretary to meet them "should not result in the dismissal 

of the discrimination proceedings; the complainant should not be prejudiced because of the 

545 
failure of the Government to meet its time obligations." S. Rep. No. 181, 95th Cong., 1s1 Sess. 36 

(1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th 

Cong., 2nd Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 624 

(1978). 

In interpreting the deadlines imposed on the Secretary in section 105( c ), the Commission 

concluded that the "fair hearing process envisioned by the Mine Act does not allow us to ignore 

serious delay by the Secretary in filing a discrimination complaint if such delay prejudicially 

deprives a respondent of a meaningful opportunity to defend itself against the claim." Secretary 

of Labor for Donald R. Hale v. 4-A Coal Co., Inc., 8 FMSHRC 905, 908 (June 1986). 

Accordingly, the Commission held that a discrimination complaint is subject to dismissal when 

the Secretary failed to meet the statutorily imposed deadlines "if the [mine] operator 

demonstrates material legal prejudice attributable to the delay." Id. This test requires more than 

a mere allegation of prejudice. 

The Secretary states that MSHA's investigation of Mr. Hamilton's complaint was not 

completed on time because: (1) Mr. Hamilton claims that he was exposed to toxic substances and 

MSHA needed to consult with an expert toxicologist; and (2) Mr. Hamilton was difficult to reach 

because he did not have a telephone. The Secretary states that the delay in this case was 

reasonable and that Mr. Hamilton's discrimination claim should not be dismissed. 

Respondent does not allege that it was materially prejudiced by this delay. There has 

been no showing that the Secretary's failure to report its findings to Mr. Hamilton with 90 days 

has hindered the ability of Respondent to defend itself in this case. I agree with the Secretary that 

Respondent has not set forth adequate grounds to dismiss this case because of this delay. 

Rule 41(a) of the Commission's procedural rules provides that the Secretary shall file her 

discrimination complaint "within 30 days after his written determination that a violation has 

occurred." 29 C.F.R. § 2700.41(a). Respondent contends that the letter it received from William 

Kates of the Office of the Solicitor on or about October 29, 1998, constitutes the Secretary's 

written determination that a violation occurred. It contends that since the Secretary failed to 

initiate this proceeding within 30 days thereafter, the case should be dismissed. 

The Secretary contends that Mr. Kates' letter was written as a courtesy to open settlement 

negotiations. The Secretary maintains that this proceeding should not be dismissed ·because she 

attempted to initiate settle negotiations in good faith. She contends that the letter was not her 

"written determination" that a violation occurred. In addition, the Secretary argues that even if 

the letter is deemed to be her written determination of a violation, the case should not be 

dismissed because Respondent was not prejudiced by the delay. 

For the reasons set forth above, Respondent has not set forth sufficient grounds to dismiss 

this case. Even if I assume that the October 29 letter was the Secretary's written determination of 

a violation, there has been no showing that the delay has materially prejudiced Re_spondent. The 

parties were engaged in settlement negotiations during that period. 

546 
For the reasons set forth above, Respondent's motion to dismiss this proceeding or in the 

alternative for summary decision is DENIED. Dismissal is a harsh remedy and Mr. Hamilton 

should not have his case dismissed because the Secretary of Labor was not able to meet the 

deadlines set forth in the Mine Act or the Commission's rules in the absence of material legal 

prejudice. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203-1954 (Fax and U.S. Mail) 

Stephen C. Rice, Esq., Aherin, Rice & Anegon, P.O. Drawer 698, Lewiston, ID 83501-0698 

(Fax and U.S. Mail) 

RWM 

547 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

May 20, 1999 

JAMES MILAM, DISCRIMINATION PROCEEDING 

Complainant 

v. 

WHITBY ELECTRIC, IN CORPORA TED, 

Respondent 

Docket No. WEV A 99-34-D 

HOPE CD 98:-11 

No. 1 Mine 

Mine ID 46-02166 

ORDER PERMITTING COUNSEL IO WITHDRAW, 

CONVERTING CASE TO ONE UNDER SECTION 105(C)(3), 

AND CHANGING CAPTION 

I. The Motion and the Res_ponse 

Counsel for the Secretary has moved to withdraw from this case as counsel for the 

Complainant. Counsel states the Complainant has retained private counsel.1 Counsel also states 

the parties have engaged in settlement negotiations but, "The Secretary has b~en unsuccessful in 

attaining guidance or settlement authority from the Complainant, and the Complainant and his 

counsel have not provided the assistance the Secretary's counsel needs to adequately represent 

the Complainant's case" (Mot. to Withdraw 2). Because the Secretary's "ability to pursue [the] 

litigation ... has been severely compromised by ... Complainant's failure to provide [counsel with] 

meaningful assistance", the Secretary's counsel seeks to leave and to "convert" the case from a 

section 105(c)(2) action to a section 105(c)(3) action (Id.). 

Counsel for the Respondent does not object to the Secretary's motion, provided the 

complaint is not "converted" and the present complaint is dismissed with prejudice. The 

Complainant has not filed a response. 

II. The Ruling 

The Act prohibits discrimination and provides two avenues for redress. Either the 

Secretary may represent the miner who believes he or she has been discriminated against (section 

1 Although counsel for the Secretary refers to Complainant's "private counsel", no lawyers other than those 

representing the Secretary and Whitby Electric, Inc. have entered appearances in this case. If the Complainant has 

retained private counsel, it would behoove counsel to enter an appearance on Complaint's behalf. 

548 
105(c)(2)); or, if the Secretary determines no discrimination has occurred, the miner may file his 

or her own complaint (section 105(c)(3)). When the Secretary initiates the complaint, the 

complainant on whose behalf the Secretary has filed is a party to the proceeding (29 C.F.R. § 

2700.4(a)). 

As this case now stands the Commission has before it an allegedly aggrieved party 

(James Milam) who asserts he has been illegally discriminated against in violation of section 

105(c)(l) of the Act and a defending party (Whitby Electric, Inc.) who denies the allegations. 

Milam has sought to effectuate his section 105( c) rights by authorizing the Secretary to file a 

complaint for him pursuant to section 105(c)(2). Now, the Secretary wishes to withdraw her 

representation, something which the Commission's rules allow provided the parties (Milam and 

Whitby) are not prejudiced (29 C.F.R. § 2700(4)(d)). 

While the Act does not specifically provide for "converting" a discrimination case 

brought under section 105(c)(2) to one brought under section 105(c)(3), it is clear to me 

conversion should be allowed. Without it a party's right to the protections of section 105( c )( 1) 

could be defeated by disagreements between the party and his or her counsel, and the protections, 

not the means by which they are sought to be effectuated, must be paramount. 

While counsel for Respondent expresses concern that "conversion" will allow 

Complainant to recover attorney's fees, recovery of costs and fees by a successful privately 

represented complainant is exactly what Congress intended. Congress provided for such 

recovery in order to encourage the effective representation of miners in those cases where the 

Secretary, for whatever reason, chose not to go forward on the miner's behalf. 

Although allowing the case to proceed under section 105(c)(3) creates the potential for 

prejudice to Whitby should Complaint seek to be awarded fees for work done by counsel for the 

Secretary, the problem is not of the moment and may be sorted out later if the case ever reaches 

the point of awarding fees and costs. 

ACCORDINGLY, the Secretary's motion is GRANTED. YusafMohamed is 

PERMITTED TO WITHDRAW as counsel for the Secretary and Milam. The proceeding is 

CONVERTED to a case brought pursuant to Section 105(c)(3) of the Act, and the case caption 

IS CHANGED to reflect the Secretary no longer is involved in this matter. 

The parties are reminded the matter will proceed to hearing as scheduled on July 1, 1999, 

in Beckley, West Virginia. 

David F. Barbour 

Administrative Law Judge 

(703) 756-5232 

549 
Distribution: 

Y. Yusuf M. Mohamed, Esq., Office of the Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd, 

Suite 516, Arlington, VA 22203 (Certified Mail) 

Julia K. Shreve, Esq., Jackson & Kelly, PLLC, 1600 Laidley Tower, Charleston, WV 25322 

(Certified Mail) 

James Milam, Rt. 10, Coon Branch Road, P.O. Box 306, Matheny, WV 24860 (Certified Mail) 

nt 

550 

*U.S.. GOVERNMENT PRIN'I1NO OWICE: 1999 • 454-620112808