MAY 1993 

COMMISSION DECISIONS AND ORDERS 

05-18-93 

05-21-93 

05-25-93. 

05-25-93 

05-25-93 

05-27-93 

05-27-93 

c.w. Mining Company 

Glen Burwick employed by Burwick Constr. 

Higman Sand & Gravel 

Higman Sand & Gravel 

Jim Walter Resources, Inc. 

Davis Trucking Company 

A-1 Grit Company 

ADMINISTRATIVE LAW JUDGE DECISIONS 

WEST 

CENT 

CENT 

CENT 

SPECIAL 

LAKE 

WEST 

92-210 

92-341-M 

93-18-M 

93-19-M 

92-01 

92-421-M 

92-527-M 

05-04-93 

05-06-93 

05-06-93 

Walter L. McMickens v. JirnWalter Resources SE 93-452-D 

Concrete Materials CENT 92-358-M 

05-06-93 

05-07-93 

05-07-93 

05-07-93 

05-10-93 

05-12-93 

05-17-93 

05-17-93 

05-19-93 

05-19-93 

05-19-93 

05-25-93 

05-25-93 

05-26-93 

05-07-93 

Prabhu Deshetty, employed by Island 

creek Coal Company 

Sec. Labor on behalf of Donald 

Bowling v. Perry Transport, et al. 

Phelps Dodge Chino, Inc. 

Yarbrough Construction Company 

Consolidation Coal Company 

Douglas E. Derossett v. Martin County 

Coal Corporation 

Elmer Darrell Burgan v. Harlan Cumberland 

Coal Company 

Wallace Enterprises, Inc. 

Consolidation Coal Company 

KEM Coal Incorporated 

KEM Coal Incorporated 

Garden Creek Pocahontas Company 

c & B Mining Company 

Sec. Labor on behalf of Paul H. Brooks 

v. R.B.S., Incorporated 

Raleigh R. Hunt v. canada Coal Company 

T & D Construction 

ADMINISTRATIVE LAW JUDGE ORDERS 

02-03-93 Power Operating Co. (previously unpub.) 

05-03-93 Triangle sand & Gravel 

KENT 92-549 

KENT 

CENT 

SE 

WEVA 

92-1052-D 

92-266-M 

92-27-M 

92-917 

KENT 93-203-D 

KENT 92-915-D 

LAKE 92-342 

WEVA 92-798 

KENT 92-611 

KENT 93-59 

VA 92-188 

PENN 92-351 

WEVA 93-89-D 

KENT 92-367-D 

CENT 92-88-M 

PENN 92-849 

WEST 92-613-M 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

Pg. 

773 

775 

777 

780 

782 

795 

797 

Pg. 799 

Pg. 828 

Pg. 830 

Pg. 836 

Pg. 838 

Pg. 841 

Pg. 855 

Pg. 883 

Pg. 889 

Pg. 902 

Pg. 904 

Pg. 910 

Pg. 912 

Pg. 915 

Pg. 917 

Pg. 928 

Pg. 929 

Pg. 930 

Pg. 931 

Pg. 933 

MAY 1993 

The following cases were granted for review during the month of May: 

Secretary of Labor, MSHA v. Spurlock Mining Company and Sarah Ashley Mining 

Company, Docket Nos. KENT 92-380, etc. (Judge Melick, April 2, 1993.) 

Secretary of Labor, MSHA v. W-P Coal Company, Docket No. WEVA 92-746. 

Melick, April 9, 1993.) 

(Judge 

Secretary of Labor, MSHA v. Glen Burwick, employed by Burwick Construction, 

Docket No. CENT 92-341-M. (Chief Judge Merlin, Default Decision of April 22, 

1993- unpublished.) 

secretary of Labor, MSHA v. Higman Sand & Gravel, Docket No. CENT 93-18-M, CENT 

93-19-M. (Chief Judge Merlin, Default Decision of April 22, 1993 -unpublished.) 

Secretary of Labor, MSHA v. A-1 Grit Company, Docket No. WEST 92-527-M. (Chief 

Judge Merlin, Default Decision of April 22, 1993 -unpublished.) 

Secretary of Labor, MSHA v. Davis Trucking Company, Docket No. LAKE 92-421-M. 

(Chief Judge Merlin, Default Decision on April 23, 1993- unpublished.) 

The following case was denied for review during the month of May: 

Secretary of Labor, MSHA v. Cyprus Tonopah Mining Corporation, Docket No. WEST 

90-202-M, etc. (Judge Lasher, April 9, 1993.) 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

C.W. MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 18, 1993 

Docket No. WEST 92-210 

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

ORDER 

BY THE COMMISSION: 

Counsel for the Secretary of Labor has filed an unopposed motion to 

dismiss this proceeding arising under the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine Act"). For the reasons that 

follow, we grant the motion. 

On July 18, 1991, an inspector of the Department of Labor's Mine Safety 

and Health Administration ("MSHA") issued to C.W. Mining Company ("C.W.") a 

citation alleging a violation of 30 C.F.R. § 75.1103-4(a)(l), a safety 

standard that, in general, requires the installation of automatic fire sensor 

and warning device systems along belt conveyors in underground coal mines. 

The citation alleged that no fire sensor was located at the tailpiece of a 

belt flight. C.W. contested the citation and this matter proceeded to hearing 

before Commission Administrative Law Judge August F. Cetti. In his decision, 

Judge Cetti concluded that C.W. violated the safety standard, affirmed the 

citation, and assessed a $20 penalty. 15 FMSHRC 178, 180-84 (January 

1993)(ALJ). The Commission subsequently granted C.W. 0 s Petition for 

Discretionary Review, which challenged the judge's interpretation of the 

standard. C.W. contended that the 24 hour grace period for the installation 

of heat sensors set forth in 75.1103-4(a)(3) applied to the tailpiece and 

that, as a consequence, it had not violated the safety standard. 

After the Commission granted review, the Secretary filed a Notice of 

Intent to Vacate Citation and Request Dismissal. The Secretary stated that 

"[a]fter a careful review of the relevant aspects of his enforcement policy 

regarding 30 C.F.R. § 75.1103-4," he determined that the grace period set 

forth in 75.1103-4(a)(3) applied to the cited conditions at the tailpiece and 

that C.W. was not in violation of the safety standard "on the day in 

question." Sec. Notice at 1-2. The Secretary also represented that counsel 

for C.W. "consents to vacating the citation and dismissing the appeal." Sec. 

Notice at 2. On May 3, 1993, an MSHA inspector vacated the subject citation. 

The Secretary, on May 7, 1993, filed a motion to dismiss this proceeding on 

773 
the basis that C.W.'s appeal is moot. 

The Commission has "responsibility under the Mine Act ... to ensure that 

a contested case is terminated ... in accordance with the Act." Youghiogheny 

& Ohio Coal Co., 7 FMSHRC 200, 203 (February 1985). A motion by the Secretary 

to dismiss a review proceeding in which he has vacated the underlying citation 

or order will ordinarily be granted if "adequate reasons" to do so are 

present. See Southern Ohio Coal Co., 10 FMSHRC 1669, 1670 (December 1988) and 

authorities cited. We conclude that adequate reasons exist in this case. The 

Secretary, as the prosecutor charged with enforcing the Mine Act, determined 

that he should vacate the citation and seek to dismiss this appeal. The 

operator does not object to the Secretary's motion and nothing in the record 

indicates that C.W. will be prejudiced by dismissal of this proceeding. 

For the foregoing reasons, the Secretary's dismissal motion is granted, 

the Commission's direction for review is vacated, as is that part of the 

judge's decision wherein he affirmed the citation, and this civil penalty 

proceeding is dismissed. 

Distribution 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

Carl E. Kingston, Esq. 

3212 S. State Street 

P.O. Box 15809 

Salt Lake City, Utah 84115 

Arlene Holen, Chairman 

Richard V. '(:"__/~/ Backley, CommiSSiOiler 

L. Clair Nelson, Commissioner 

Administrative Law Judge August Cetti 

Federal }1ine Safety & Health Review Commission 

1244 Speer Boulevard, Suite 280 

Denver, Colorado 80204 

774 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

GLEN BURWICK, 

Employed by Burwick 

Construction Co. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 21, 1993 

Docket No. CENT 92-341-M 

BEFORE: Holen, Chairman; Backley, Doyle and Nelson, 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. (1988)("Mine Act"). On April 22, 

1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default, 

finding respondent Glen Burwick, an employee of Burwick Construction Co., in 

default for failing to answer the notice of proposed civil penalty filed by 

the Secretary of Labor or the judge's February 9, 1993, Order to Show Cause. 

The judge assessed the civil penalty of $400 proposed by the Secretary. For 

the reasons that follow, we vacate the default order and remand this case for 

further proceedings. 

The Commission has received a letter from Ms. Tanya Burwick dated April 

27, 1993, stating that on February 22, 1993, Glen and Therell Burwick 

responded to the Proposal, showing their opposition to the charges brought 

against them. The February 22 letter contained no docket numbers and was 

filed only in the official record in Therell Burwick. emp. by Burwick 

Construction Co., Docket No. CENT 92-340-M, a related case. 

The judge's jurisdiction over this case terminated when his decision was 

issued on April 22, 1993. 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 with the Commission within 30 days 

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

April 27 letter to be a timely filed Petition for Discretionary Review, which 

we grant. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September 

1988). On the basis of the present record, we are unable to evaluate the 

merits of the respondent's position. In the interest of justice, we remand 

this matter to the judge, who shall determine whether a default order is 

warranted. 

775 
For the reasons set forth above, we vacate the judge's default order and 

remand this matter for further proceedings. 

Distribution 

Tanya Burwick 

Burwick Oilfield Services, Inc. 

Drawer P 

Bronte, Texas 76933 

J. Philip Smith, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd~ 

Arlington, VA 22203 

L. Clair Nelson, Commissioner 

Chief Administrative Law Judge Paul Merlin 

Federal Hine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

776 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HIGMAN SAND & GRAVEL, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Hay 25, 1993 

Docket No. CENT 93-18-M 

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

,_ ORDER 

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

This civil penalty proceeding arises under the Federal Mine Safety and 

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

Chief Administrative Law Judge Paul Merlin issued an Order of Default on April 

22, 1993, finding respondent Higman Sand & Gravel, Inc. ("Higman") in default 

for failure to answer the civil penalty proposal of the Secretary of Labor 

("Secretary") and the judge's February 24, 1993, Order to Show Cause. The 

judge assessed the civil penalty of $362 proposed by the Secretary. For the 

reasons that follow, we vacate the default order and remand this case for 

further proceedings. 

On April 30, 1993, Higman filed a letter with the Commission, which 

stated, in essence, that Higman believed it had done everything necessary to 

obtain a hearing. A letter dated March 19, 1993 was attached, which Higman 

alleges it mailed to the Department of Labor's Mine Safety and Health 

Administration ("MSHA") Civil Penalty Compliance Office in Arlington, 

Virginia. 

The judge 9 s jurisdiction in this proceeding terminated when his decision 

was issued on April 22, 1993. 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 with the Commission 

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

2700.70(a). We will treat Higman's letter as a timely filed petition for 

discretionary review of the decision. See, ~. Middle States Resources. 

Inc., 10 FMSHRC 1130 (September 1988). 

On July 15, 1992, an MSHA inspector issued to Higman a citation pursuant 

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

777 
30 C.F.R. § 56.14132(a), a mandatory audible warning device standard for 

surface metal and nonmetal mines. On October 6, 1992, MSHA's Office of 

Assessments, under the regular assessment procedures of 30 C.F.R. § 100.3, 

notified Higman that it proposed a civil penalty of $362 for the alleged 

violation. On October 21,, 1992, Higman filed its "Blue Card" request for a 

hearing before this independent Commission. On December 18, 1992, the 

Secretary filed a complaint proposing the assessment of a civil penalty for 

the violation. Under the Commission's rules of procedure, the party against 

whom a penalty is sought was obligated to file its answer with the Commission 

within 30 days after service of the penalty proposal. 29 C.F.R. § 2700.5(b) & 

.29. The record indicates that Higman did not file an answer to the complaint 

with the Commission. When no answer to the penalty proposal was filed, the 

judge, on February 24, 1993, issued an order directing Higman to file an 

answer within 30 days or to show good cause for its failure to do so. 

It appears that Higman, proceeding without benefit of counsel, may have 

confused the roles of the Commission and MSHA in this adjudicatory proceeding 

and may have attempted to respond to the judge's show cause order by sending 

its response to MSHA. We are unable, on the basis of the present record, to 

evaluate the merits of Higman's position. Because Higman has asserted an 

attempt to respond, we will, in the interest of justice, permit Higman the 

opportunity to present its position to the judge, who shall determine whether 

relief from default is warranted. Therefore, we vacate the default order. 

Higman is reminded that it must file all documents and correspondence with the 

Commission, and serve the Secretary with copies of all of such filings. 29 

C.F.R. §§ 2700.5(b) & .7. 

~· Richard V. Backley, Commissioner 

778 
Distribution 

Harold Higman, Jr. 

Higman Sand & Gravel, Inc. 

P.O. Box 106 

Akron, Iowa 51001 

Margaret A. Miller, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1585 Federal Bldg. 

1961 Stout St. 

Denver, Colorado 80294 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

779 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HIGMAN SAND & GRAVEL, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Hay 25, 1993 

Docket No. CENT 93-19-M 

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

ORDER 

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

This civil penalty proceeding arises under the Federal Mine Safety and 

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

Chief Administrative Law Judge Paul Merlin issued an Order of Default on April 

22, 1993, finding respondent Higman Sand & Gravel, Inc. ("Higman") in default 

for failure to answer the civil penalty proposal of the Secretary of Labor 

("Secretary") and the judge's February 24, 1993, Order to Show Cause. The 

judge assessed the civil penalty of $292 proposed by the Secretary. For the 

reasons that follow, we vacate the default order and remand this case for 

further proceedings. 

On April 30, 1993, Higman filed a letter with the Commission, which 

stated, in essence, that Higman believed it had done everything necessary to 

obtain a hearing. A letter dated March 19, 1993 was attached, which Higman 

alleges it mailed to the Department of Labor's Mine Safety and Health 

Administration ("MSHA") Civil Penalty Compliance Office in Arlington, 

Virginia. 

The judge's jurisdiction in this proceeding terminated when his decision 

was issued on April 22, 1993. 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 with the Commission 

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

2700.70(a). We will treat Higman's letter as a timely filed petition for 

discretionary review of the decision. See, ~. Middle States Resources. 

Inc., 10 FMSHRC 1130 (September 1988). 

On July 16, 1992, an MSHA inspector issued to Higman a citation pursuant 

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

780 
30 C.F.R. § 56.20008, a mandatory toilet facility standard for surface metal 

and nonmetal mines. On September 15, 1992, another MSHA inspector issued to 

Higman an order pursuant to section 104(b) of the Mine Act, 30 U.S.C. § 

814(b), for failure to abate the violation. On October 6, 1992, MSHA's Office 

of Assessments, under the regular assessment procedures of 30 C.~.R. § 100.3, 

notified Higman that it proposed a civil penalty of $292 for the alleged 

violation. On October 21, 1992, Higman filed its "Blue Card11 request for a 

hearing before this independent Commission. On December 18, 1992, the 

Secretary filed a complaint proposing the assessment of a civil penalty for 

the violation. Under the Commission's rules of procedure, the party against 

whom a penalty is sought was obligated to file its answer with the Commission 

within 30 days after service of the penalty proposal. 29 C.F.R. § 2700.5(b) & 

.29. The record indicates that Higman did not file an answer to the complaint 

with the Commission. When no answer to the penalty proposal was filed, the 

judge, on February 24, 1993, issued an order directing Higman to file an 

answer within 30 days or to show good cause for its failure to do so. 

It appears that Higman, proceeding without benefit of counsel, may have 

confused the roles of the Commission and MSHA in this adjudicatory proceeding 

and may have attempted to respond tiG the Judge's show cause order by sending 

its response to MSHA. We are unable, on the basis of the present record, to 

evaluate the merits of Higman's position. Because Higman has asserted an 

attempt to respond, we will, in the interest of justice, permit Higman the 

opportunity to present its position to the judge, who shall determine whether 

relief from default is warranted. Therefore, we vacate the default order. 

Higman is reminded that it must file all documents and correspondence with the 

Commission, and serve the Secretary with copies of all of such filings. 29 

C.F.R. §§ 2700.S(b) & .7. 

Arlene Holen, Chairman 

Richard V. Backley, 

781 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JIM WALTER RESOURCES, INC. 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Hay 25, 1993 

Docket No. SPECIAL 92-01 

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

DECISION 

BY THE COMMISSION: 

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

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

Resources, Inc. ("JWR") filed with the Commission a Notice of Contest and 

Motion for Partial Relief from Final Order seeking to reopen certain 

uncontested civil penalty assessments in which JWR had paid in full the 

penalties proposed by the Secretary of Labor. As the basis for its motion, 

JWR cites Rule 60(b), Federal Rules of Civil Procedure ("Fed. R. Civ. P."), 

and principles of equity. 

This is the lead case in a group of 19 special proceedings in which 

similar notices of contest and motions for relief from final orders were filed 

by mine operators (Docket Nos. SPECIAL 92-02 through -16; and 93-01 through 

-03). The operators contend that the penalties in dispute were invalidly 

augmented on the basis of the interim "excessive history" program set forth in 

the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"), 

which the Commission concluded in Drummond Co.~ 14 FMSHRC 661, 692 (May 1992), 

and related cases, could be accorded no legal weight or effect. The operators 

seek refunds of those portions of paid penalties attributable to augmentations 

under the PPL. 

The Commission granted the motions of the American Mining Congress 

("AMC") and National Coal Association ("NCA") to participate as amici curiae 

and heard oral argument. For the reasons that follow, we hold that the 

Commission possesses jurisdiction to reopen final orders, including orders in 

which uncontested penalties were paid, but conclude that JWR's request does 

not meet the requisite criteria under Fed. R. Civ. P. 60(b) or principles of 

equity for the grant of such relief. Accordingly, we deny JWR's motion to 

reopen and we dismiss this proceeding. 

782 
I. 

Back~round 

A. General Le~al and Re~ulatory Back~round 

The Mine Act establishes a bifurcated civil penalty system in which the 

Secretary proposes and the Commission assesses, based on specified criteria, 1 

all civil penalties for violations of the Act, of mandatory safety and health 

standards, and of other regulations issued under the Act. 30 U.S.C. §§ 815(a) 

& (d), 820(a) & (i); ~. ~. Sellersburg Stone Co,, 5 FMSHRC 287, 290-92 

(March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Section lOS(a) of the Act 

states in pertinent part that, after the Secretary has issued a citation or 

withdrawal order to a mine operator for an alleged violation, he "shall ... 

notify the operator ... of the civil penalty proposed to .be assessed ... for 

the violation .... " 30 U.S.C. § 815(a). Section 105(a) allows the operator 30 

days within which to contest a proposed penalty and further provides that, if 

the operator does not contest it, the assessment "shall be deemed a final 

order of the Commission and not subject to review by any court or agency." 

The Secretary, acting through the Department of Labor's Mine Safety and 

Health Administration ("MSHA"), promulgated regulations at 30 C.F.R. Part 100 

to implement the proposal of penalties. 2 Two methods were provided for 

calculating proposed penalties, regular and special assessment. In 1982, MSHA 

added a "single penalty" assessment of $20 for a timely abated non-significant 

and substantial ("non-S&S") violation. 3 See Drummond, 14 FMSHRC at 663-64. 

l Section llO(i) of the Act provides in relevant part: 

In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous 

violations, the appropriateness of such penalty to the 

size of the business of the operator charged, whether 

the operator was negligent, the effect on the operator's 

ability to continue in business, the gravity of the 

violation, and the demonstrated good faith of the person 

charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 u.s.c. § 820(i). 

2 The civil penalty regulations were adopted pursuant to section 508 of the 

Mine Act. 30 U.S.C. § 957. See Drummond, 14 FMSHRC at 663. 

3 The S&S terminology is taken from section 104(d) of the Act, which 

distinguishes as more serious in nature any violation that "could significantly 

and substantially contribute to the cause and effect of a ... mine safety or 

health hazard." 30 U.S.C. § 814(d)(l). 

783 
In Coal Employment Project v. Dole, 889 F.2d 1127, 1136-38 (D.C. Cir. 

1989), the D.C. Circuit found that the Secretary's procedure for assessing 

single penalties failed to take into account violation history, one of the 

Mine Act's penalty criteria. The Court remanded the case to MSHA "for 

appropriate amendment of the regulations." 889 F.2d at 1128. The Court 

ordered MSHA, in the interim, to consider an operator's history of non-S&S 

violations in proposing single penalties and to include an operator's history 

of single penalties in proposing regular assessments. 889 F.2d at 1138, 1139. 

Issuance of the PPL was one of the actions taken by MSHA in response to 

the Court's interim remand. See Drummond, 14 FMSHRC at 678. The Secretary 

did not publish the PPL in the Federal Register but sent it to all operators 

on May 29, 1990. In addition to incorporating single penalties in the 

violation history scheme, the PPL augmented penalty assessments by specified 

percentage amounts, depending on the degree of "excessive history." 4 On 

December 28, 1990, the Secretary published proposed rules, "Criteria and 

Procedures for Proposed Assessment of Civil Penalties," which generally 

incorporated the provisions of the PPL. 55 Fed. Reg. 53482, 53483. See 

Drummond, 14 FMSHRC at 667-68. 

B. The Drummond Litigation and Related Developments 

The Secretary began proposing civil penalties based on the PPL in May 

1990. The Commission docketed 2,803 contests from mine operators contending 

that the proposed penalties were improper because they were not based on the 

Part 100 penalty regulations alone but, instead, were increased in accordance 

with the PPL's interim excessive history program, which, the operators argued, 

had been unlawfully issued outside the notice-and-comment rulemaking process 

required by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1988) 

("APA"). The operators also moved to have the proposed penalties remanded to 

the Secretary for recalculation without reference to the PPL. The Commission 

granted seven petitions for review of decisions by its administrative law 

judges and, while these cases were pending on review, proceedings in the other 

excessive history contests were stayed. The petitions for review resulted in 

Drummond and related decisions. 5 See Drummond, 14 FMSHRC at 661-62, 669-70. 

4 The PPL provided that non-S&S violations, if associated with excessive 

history, would no longer be eligible for a single penalty but would be assessed 

under the regular assessment formula. PPL at 2. S&S violations associated with 

excessive history would receive a regular assessment augmented by a percentage 

increase of 20%, 30% or 40%. Violations specially assessed would receive a 

similar percentage increase for excessive history. Id. 

5 Also issued the same date were a second Drummond decision, 14 FMSHRC 695 

(May 1992), as well as: Cyprus-Plateau Mining Corp., 14 FMSHRC 702 (May 1992); 

Utah Power and Light Co .. Mining Div., 14 FMSHRC 709 (May 1992); Habet Mining. 

Inc., 14 FMSHRC 717 (May 1992); Texas Utilities Mining Co., 14 FMSHRC 724 (May 

1992); and Zeigler Coal Co., 14 FMSHRC 731 (May 1992). 

784 
In Drummond, the Commission determined that it possessed subject matter 

jurisdiction to review the validity of the PPL and to require the Secretary to 

propose penalties in a manner consistent with the Part 100 penalty 

regulations. 14 FMSHRC at 673-78. It further determined that the PPL 

exceeded the Coal Employment Project interim mandate. 14 FMSHRC at 678-80. 

The Commission determined that, under established APA precedent, the PPL could 

not be regarded as an interpretative rule, policy statement, or agency 

procedure excepted from notice-and-comment rulemaking (see 5 U.S.C. § 553(b) 

(3)(A)) (14 FMSHRC at 684-88), and that it did not otherwise qualify for 

exception from that process (14 FMSHRC at 689-90). The Commission held that 

the PPL was an "invalidly issued substantive rule" that could not be "accorded 

legal effect." 14 FMSHRC at 692. Accordingly, the Commission remanded the 

proposed penalties in Drummond and the related matters to the Secretary for 

recalculation in accordance with the existing Part 100 regulations, without 

use of the PPL. The 2,779 other pending penalty matters were also remanded to 

the Secretary for reproposal in accordance with Drummond. 

By letter dated June 3, 1992, the Department of Labor's Associate 

Solicitor advised the Commission's .. <:;hief Administrative Law Judge that the 

Secretary had decided that he would not appeal Drummond. The Associate 

Solicitor also stated, in effect, that new penalties would be proposed for S&S 

violations with excessive history, i.e., to rescind penalty augmentations, but 

not for non-S&S violations with excessive history. 

While Drummond was pending on review, certain final Part 100 rules were 

published, containing, as relevant her~. the final version of MSHA's interim 

action in response to the Coal Employment Project order to include single 

penalties in an operator's history of violations. 57 Fed. Reg. 2968-71 

(January 24, 1992). That same day, the Secretary published a revised proposed 

penalty rule .. 57 Fed. Reg. 2972-77. On January 29, 1992, MSHA also issued 

Program Policy· Letter No. P92-III-l ("PPL-II"), which superseded the PPL and 

mirrored the new proposed penalty rule. PPL-11, like the earlier PPL, was not 

published in the Federal Register. Drummond, 14 FMSHRC at 668. 

A final penalty rule, taking into account an operator's history of 

violations in determining eligibility for a single penalty assessment, was 

issued by the Secretary on December 21, 1992, completing MSHA's response to 

the Coal Employment Project order. 6 57 Fed. Reg. at 60690-97. The penalty 

system underlying the final rule continues to incorporate the Mine Act's 

penalty criteria, including violation history. The fi~al rule, however, is 

significantly different from MSHA's two PPL's and the two proposed rules in 

that it does not provide for percentage augmentations of penalties based on 

excessive history. 

6 The Coal Employment Project Court had retained jurisdiction over its 

remand to MSHA. 889 F. 2d at 1138, 1139. Upon receiving the Secretary's 

Notification of Completion of Rulemaking, the Court issued an order removing the 

case from its docket on January 19, 1993, thus terminating its jurisdiction in 

the case. 

785 
C. JWR's Motion 

Relying on Drummond's invalidation of the PPL, JWR filed its Notice of 

Contest and Motion for Partial Relief from Final Order on June 29, 1992. 

Eighteen similar pleadings from other operators followed. In all these 

matters, the operators had failed to contest, within the time provided by 

section 105(a) of the Act, the proposed penalties and, instead, had paid the 

penalties in full. The Commission heard oral argument on January 28, 1993. 

II. 

Disposition of Issues 

Two major issues are presented: (1) whether, in view of the language in 

section 105(a) of the Mine Act, the Commission possesses jurisdiction to 

reopen these final orders; and (2), if the Commission does have such 

jurisdiction, whether JWR has satisfied appropriate criteria for such 

reopening. We answer the first question in the affirmative and the second in 

the negative. 

A. Commission Jurisdiction 

1. Parties' arguments 

JWR and the amici (hereafter, the "operators") do not seek refund of the 

basic penalty amounts nor do they contest the underlying citations. Rather, 

they request reduction of the penalties by the amount attributable to 

augmentation under the PPLs. They assert that Fed. R. Civ. P. 60(b) ("Rule 

60(b)"), which the Commission has invoked frequently to reopen final orders 

such as default judgments, may serve as the basis for reopening these matters, 

which have become "final orders of the Commission" by operation of section 

105(a). The operators point to case law under the Occupational Safety and 

Health Act of 1970, 29 U.S.C. § 651 et seq. (1988)(the "OSHAct"), permitting 

Rule 60(b) relief, notwithstanding analogous "final order" language in section 

lO(a) of that statute, 29 U.S.C. § 659(a). See,~. J.I. Hass Co. v. OSHRC, 

648 F.2d 190, 192-95 (3rd Cir. 1981). The operators also note that section 

105(a) specifically precludes "agency" but not "Commission" review and, thus, 

does not bar this Commission's review of these matters. 

The Secretary contends that the Commission is without jurisdiction to 

consider JWR's challenge because JWR failed to timely contest the penalty 

proposals as provided in section 105(a) of the Mine Act. He relies on the 

language in section 105(a), which provides that a final order of the 

Commission is not subject to review "by any court or agency." 30 U.S.C. 

§ 815(a). Thus, by operation of the statute, these matters are final and may 

not be reopened for review by the Commission. 

2. Disposition 

In construing the Act, the Secretary, this Commission, and the Courts of 

Appeals must give effect to the "unambiguously expressed intent of Congress." 

Chevron U.S.A. v. Natural Res. Def. Council. Inc., 467 U.S. 837, 843 (1984). 

786 
In general, the Commission also is required to accord "weight" to the 

Secretary's interpretations of the statute and his implementing regulations. 

S. Rep. No. 181, 95th Gong., 1st Sess. 49 (1977)("S. Rep."), reprinted in 

Senate Subcommittee on Labor, Committee on Human Resources, 95th Gong., 2d 

Sess., Legislative History of the Federal Mine Safety and Health Act of 197Z, 

at 637 (1978)("Legis. Hist."). However, as the Commission stated in Drumroond, 

"we perceive no indication in the statute or its legislative history, or in 

sound policy, that [Commission] deference to the Secretary's views of 

Commission jurisdiction is required." 14 FMSHRC at 674 n.l4. 

The Secretary argues that the language of section 105(a), "not subject 

to review by any court or agency," is unambiguous and precludes the Commission 

itself from reopening its final orders. We disagree. In our view, section 

lOS(a) merely sets forth a general principle of finality covering the 

procedure for the contest of citations and proposed penalties. The Commission 

has recognized that, in appropriate circumstances, it may grant various forms 

of relief from final Commission orders. See generally, ~. Danny Johnson v. 

Lamar Mining Co., 10 FMSHRC 506, 508 (April 1988); M.M. Sundt Const. Co., 8 

FMSHRC 1269, 1270-71 (September 1986). In reopening final orders, the 

Commission has found guidance in, 'and has applied, "so far as practicable," 

Rule 60(b), dealing with relief from judgments or orders. 7 See Commission 

Procedural Rule l(b), 29 C.F.R. § 2700.l(b). 

The legislative history indicates that Congress enacted section 105 to 

end the lengthy and repetitive procedure of penalty assessment and collection 

under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et 

seq. (1976)(amended 1977) ("1969 Coal Act"). UMWA v. Ranger Fuel Co., 12 

FMSHRC 363, 372-73 (March 1990). Under the 1969 Coal Act, operators had the 

right to seek de novo review of those penalties in United States District 

Courts. See S. Rep. at 16, 44, 45, reprinted in Legis. Hist. at 604, 632, 

633. The legislative history makes clear that the "not subject to review" 

language was intended to abolish this cumbersome process by preventing 

collateral attacks on penalty determinations. See, ~. S. Rep. at 34, 45-

46, reprinted in Legis. Hist. at 622, 633-34; see also Legis. Hist. at 89 

7 In relevant part, Rule 60(b) provides: 

Mistakes: Inadvertence: Excusable Neglect: Newly 

Discovered Evidence: Fraud. etc. On motion and upon 

such terms as are just, the court may relieve a party or 

his legal representative from a final judgment, order, 

or proceeding for the following reasons: (1) mistake, 

inadvertence, surprise, or excusable neglect; ... 

(3) fraud (whether heretofore denominated intrinsic or 

extrinsic) , misrepresentation, or other misconduct of an 

adverse party; (4) the judgment is void; ... or (6) any 

other reason justifying relief from the operation of the 

judgment. The motion shall be made within a reasonable 

time, and for reasons (1) ... and (3) not more than one 

year after the judgment, order, or proceeding was 

entered or taken .... 

787 
(remarks of Sen. Williams introducing S. 717, the bill upon which the Mine Act 

was based). There is nothing in the legislative history to suggest that 

Congress intended to bar the Commission itself from granting Rule 60(b) type 

post-judgment relief in appropriate circumstances. 8 

The Commission's view of section lOS(a) is supported by analogous case 

law. Section lO(a) of the OSHAct, 29 U.S.C. § 659(a), also provides that an 

uncontested citation or proposed penalty "shall be deemed a final order of the 

[Occupational Safety and Health Review] Commission and not subject to review 

by any court or agency." In J.I. Hass, the Third Circuit held that section 

lO(a) of the OSHAct cannot be reasonably construed to prohibit all late-filed 

notices of contest: 

The Secretary contends that the final clause of 

section lO(a) is jurisdictional and must be read 

literally to prohibit review of citations if an 

employer files no timely notice of contest. Under 

lthis interpretation of s~ction lO(a), once any 

employee of the employe;r: signs the certified receipt 

for the citations, no circumstances would permit a 

late notice of contest. Thus, if an employee signed 

for citations and then was killed while returning from 

the post office, and the letter destroyed, an employer 

with a meritorious defense could still get no relief 

if 15 working days elapsed before he learned of the 

citations. We do not believe that Congress intended 

such a harsh result. 

648 F.2d at 194. See also Capital City Excavatini Co. v. Donovan, 679 F.2d 

105, 109-10 (6th Cir. 1982). 

8 Amicus AMC argues that section l05(a) precludes review only by other 

agencies and courts but does not explicitly preclude Commission review. AMC 

Reply at 7. The Secretary argues that Commission Procedural Rule 25, 29 C.F.R. 

§ 2700.25, which stated that section 105(a) orders were not subject to review by 

the Commission or a court, precludes relief. Procedural Rule 25 first appeared 

in Rule 23 of the Interim Procedural Rules published on March 10, 1978, prior to 

the assumption of office by Commission members. 43 Fed. Reg. 10320, 10324 

(1978), No explanation of the Interim Rule was provided. Id. When the 

Commission adopted its Procedural Rules in 1979, Interim Rule 23, which departed 

from section 105(a) of the Mine Act, was substantially retained in Rule 25, 

without comment. 44 Fed. Reg. 38227, 38229 (1979). The Commission has published 

new final Procedural Rules, which took effect on May 3, 1993, and, in a number 

of instances, has revised the text of rules to conform to the statute. 58 Fed. 

Reg. 12158-74 (March 3, 1993). Revised Rule 27, which replaces prior Rule 25, 

conforms the earlier rule to the language of section 105(a) of the Mine Act, "not 

subject to review by any court or aiency." (Emphasis added.) 58 Fed. Reg. 

12167. In any event, we construe the prior rule in a manner consistent with the 

language of the Mine Act and the analysis set forth in this decision. 

788 
For the foregoing reasons, we hold that a final order of the Commission 

may be reopened by the Commission in appropriate circumstances pursuant to 

Rule 60(b). 

B. Whether JWR Meets Criteria for Post-Jud~ent Relief 

l. Parties' ar~ents 

JWR invokes Rule 60(b)(3), alleging misrepresentation by the Secretary 

in the proposal of the penalties, and Rule 60(b)(6), asserting that the 

requested relief would ensure that justice is served. JWR alleges that, in 

proposing the penalties, the Secretary misrepresented his actions by stating 

that the proposals had been calculated pursuant to 30 C.F.R. Part 100, when, 

in fact, that was not the case. Only when the Commission in Drummond found 

the PPL to be invalid, did JWR realize that it had paid invalidly determined 

penalties. The operators argue that it is unfair to require the payment of 

illegally proposed penalties and contend on separate equitable grounds that 

they should be relieved from these final orders. 

The Secretary responds that the criteria of Rule 60(b) have not been 

satisfied. The Secretary points out that the penalty proposals stated on 

their face that the penalties had been increased under the excessive history 

program. (See Attachment A to JWR's Notice of Contest.) He also notes that 

the PPL was disseminated to all regulated operators and, in light of such 

notification, the operators cannot claim misrepresentation as to the penalty 

calculations. He further argues that these motions are essentially attempts 

to change litigating positions in light of subsequent legal developments, and 

that neither Rule 60(b) nor other equitable relief is appropriate under such 

circumstances. 

2. Disposition 

Motions to reopen under Rule 60(b) are committed to the sound discretion 

of ·the judicial tribunal in which relief is sought. ~. Randall v. 

Merrill Lynch, 820 F.2d 1317, 1320-21 (D.C. Cir. 1987). However, discretion 

in this regard is not open-ended. As the Court stated in Randall: "Rule 60(b) 

is the mechanism by which courts temper the finality of judgments with the 

necessity to distribute justice. It is a tool which ... courts are to use 

sparingly .... nn 820 F. 2d at 1322. See also Ronald Tolbert v. Chaney Creek 

Corp., 12 FMSHRC 615, 619 n.l (April 1990). 

We reject JWR's Rule 60(b)(3) claim alleging misrepresentation by the 

Secretary. In a Rule 60(b)(3) motion, misrepresentation must be shown by 

clear and convincing evidence. 11 Wright & Miller, Federal Practice and 

Procedure: Civil§ 2860 (1973), and authorities cited. The Secretary's 

notifications to JWR and other operators of the proposed penalties stated 

expressly that the penalties were augmented by the excessive history program. 

As to the invalidity of the PPL, a conclusion subsequently reached in 

9 Because we dispose of JWR's motion on substantive grounds, we do not 

reach issues of time limitation. 

789 
Drummond, we do not regard this as a "fact" that the Secretary would be 

obligated to disclose in proposing penalties. Rather, it is a legal 

conclusion that was reached following timely challenges to penalty proposals. 

Accordingly, we discern no misrepresentation for Rule 60(b)(3) purposes. 

We are similarly.unpersuaded by the operators' Rule 60(b)(6) arguments. 

Rule 60 (b) ( 6) provides for relief for "any other· reason justifying relief," 

but cannot be used to relieve a party from the duty to take legal action to 

protect its interests by challenging dubious enforcement actions. See, ~. 

Ackermann v. U.S., 340 U.S. 193, 199-202 (1950); McNight v. U.S. Steel Corp., 

726 F.2d 333, 336 (7th Cir. 1984); Wright & Miller, supra§ 2864. Nor does 

Rule 60(b)(6) obviate the general principles of finality of judgments. Here, 

JWR chose to pay certain penalties rather than to contest them. JWR now 

attempts to rely on the litigation efforts of other operators who questioned 

and successfully contested penalties augmented under the PPL. Many operators 

questioned the validity of the excessive history program and pursued their 

rights under Mine Act review procedures. 

As noted in Parks·v. U.S. Life and Credit Corp., 677 F.2d 838 (11th Cir. 

1982): 

An unsuccessful litigant may not rely on appeals by 

others and share in the fruits of victory by way of a 

Rule 60(b) motion. 

The strong interest in the finality of 

litigation demands rejection of appellant's 

suggestion. During the pendency of an appeal, the 

parties recognize the possibility of reversal; thus, 

modification of a judgment being appealed impacts not 

at all on finality concerns. "There must be an end to 

litigation some day, and free, calculated, deliberate 

choices are not to be relieved from." [Ackermann v. 

United States,] 340 U.S. 193, 198, 71 S.Ct. 209, 211, 

95 L.Ed. 207 [(1950)]. 

677 F.2d at 840-41. 

The operators argued that a large operator such as JWR must regularly 

process hundreds of notifications of proposed penalties. Its decisions to 

contest are largely administrative and cannot realistically be characterized 

as deliberate litigation choices. Tr. Oral Arg. 20, 23-26, 32-34. Under the 

Mine Act, however, JWR is required to make such deliberate choices and its 

failure to contest proposed penalties as provided in section 105 is at its 

peril. 

As to the equity principles invoked, the Commission is not a court of 

general equity.· Cf. Kaiser Coal Corp., 10 FMSHRC 1165, 1169-71 (September 

1988), In any event, it is a fundamental premise that equity aids those who 

have vigilantly pursued their rights. ~. 27 Am. Jur. 2d Equity § 130 

(1966). JWR was less than vigilant. 

790 
We conclude that the operators have failed to make a clear and 

convincing demonstration of justification for Rule 60(b)(3) or (b)(6) relief 

or for general equitable relief. 10 

C. Res Judicata and Sovereign Immunity 

The Secretary argues that the paid penalties have a res judicata effect, 

precluding JWR's attempt at relitigation. He further contends that sovereign 

immunity has not been waived by the United States as to recoupment of these 

penalties and, accordingly, any refund is barred, and that the proper forum 

for monetary claims is the Court of Claims or a United States District Court. 

The operators argue that res judicata is inapplicable under the circumstances 

and contend that, notwithstanding sovereign immunity, the Commission possesses 

ample power under the Act to direct relief. Given our preceding disposition, 

we need not rule on the Secretary's res judicata and sovereign immunity 

arguments. 

D. Merits of 

Although we are constrained to deny JWR's motion, we express our 

disapproval of the Secretary's actions regarding attempted compliance with the 

Coal Employment Project mandate. The Secretary has pursued a confusing course 

of action, issuing proposed rules for comment at the same time as he issued 

and implemented PPLs outside the aegis of the APA. See Drummond, 14 FMSHRC at 

678-90. A joint industry and labor comment received during the rulemaking 

process "contended that the proposed excessive history criteria and program 

were inherently flawed because they did not target the appropriate [i.e., 

higher fatality rate] mines." 57 Fed. Reg. at 60693 (preamble to final rule). 

Based on further substantive analysis, the Secretary deleted from the final 

rule percentage augmentations of penalties based on excessive history. 

10 Amicus AMC also argues that Rule 60{b)(4) relief is justified in that 

the underlying section lOS{a) final orders are "void" pursuant to the principles 

announced in Drummond. We decline to reach this issue. JWR premised its motion 

only on Rule 60{b)(3) and (b)(6) and on equitable principles. Absent exceptional 

circumstances, not shown here, an amicus cannot expand the scope of an appeal 

beyond the issues raised by the parties. ~. Richardson v. Alabama State Bd. 

of Educ., 935 F.2d 1240, 1247 (11th Cir. 1991); Christopher M. v. Corpus Christi 

Ind. Sch. Dist., 933 F.2d 1285, 1292 (5th Cir. 1991). 

791 
The Secretary has argued that making the requested refunds would be 

administratively chaotic, because thousands of cases would have to be reopened 

and approximately $1,500,000 refunded. Sec. Opp. at 19. However, following 

the Commission's remand of penalty cases in accordance with Drummond, the 

Secretary recalculated thousands of penalties that had been proposed pursuant 

to the PPL and reduced the assessments involved by $859,038. Letter from 

Secretary's Counsel to Commission (in response to Commission's written 

inquiries) at 2 (February 4, 1993)( 11 Sec. Letter"). 11 The Secretary further 

argues that he is barred from granting refunds, relying, in part, on a 

Comptroller General opinion issued more that fifty years ago in matters that 

are not analogous. Sec. Surreply Br. at 8-10 & n.7. The Secretary, however, 

has not requested the Comptroller General's opinion as to the legality of 

refunds in these matters nor did the Secretary seek such opinion on the 

refunds he made voluntarily. Oral Arg. Tr. at 38-39; see also Sec. Letter 

at 2. The Secretary has informed the Commission that, as of February 4, 1993, 

he had refunded to operators $249,513 in excessive history penalty 

overpayments based on "retroactivity considerations." Sec. Letter at 1-2. 

These refunds were made by MSHA to remove any "doubt as to the fairness and 

consistency of [MSHA' s] Assessment''J>olicies and procedures." Notification to 

Mine Operator[s], Attachment C to JWR's Notice of Contest. 

In not appealing Drummond, in reproposing many penalties in accordance 

with Drummond, and in modifying the final penalty rule, the Secretary has 

implicitly recognized that percentage augmentations based on excessive history 

were misplaced. In other cases involving the excessive history program, the 

Secretary has undertaken penalty recalculations and has made refunds on a 

broad scale. We urge the Secretary to evaluate further the legality and 

feasibility of providing refunds in these matters and to reconsider his 

position. 

11 We note that, in addition to those reproposals for S&S violations, the 

Secretary has agreed, based on Drummond, to reduce penalty proposals for non-S&S 

violations with excessive history. See JWR Citation of Supplemental Authority 

(Letter of May 21, 1993). 

792 
III. 

Conclusion 

For the foregoing reasons, JWR's motion for relief is denied and this 

proceeding is dismissed. 

Arlene Holen, Chairman 

~~/~&~ Richard V. Backley, Commissioner 

L. Clair Nelson, Commissioner 

793 
Distribution 

David H. Smith, Esq. 

J. Alan Truitt, 

}~ynard, Cooper, Frierson & Gale, P.C. 

1901 Sixth Avenue North 

2400 AmSouth/Harbert Plaza 

Birmingham, AL 35203 

Harold Rice, Esq. 

Stanley Morrow, Esq. 

Jim Walter Resources, Inc. 

P.O. Box 133 

Brookwood, AL 35444 

Susan E. Long, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, VA 22203 

James A. Lastowka, Esq., for 

American Mining Congress 

McDermott, Will & Emery 

1850 K Street, N.W. 

Washington, D.C. 20006 

Henry Chajet, Esq. 

L. Poe Leggette, 

Jackson & Kelly 

2401 Pennsylvania 

Washington, D.C. 

Ave., N.W., Suite 400 

20037 

Timothy M. Biddle, Esq. 

Thomas C. Means, Esq. 

Crowell & Moring 

1001 Pennsylvania Ave., N.Wo 

Washington, D.C. 20004 

794 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DAVIS TRUCKING COMPANY, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Nay 27, 1993 

Docket No. LAKE 92-421-M 

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

ORDER 

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

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 23, 

1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to 

Davis Trucking Co. ("Davis") for failing to answer the notice of proposed 

civil penalty filed by the Secretary of Labor or the judge's February 24, 

1993, Order to· Show Cause. The judge assessed the civil penalty of $2,000 

proposed by the Secretary. For the reasons that follow, we vacate the default 

order and remand this case for further proceedings. 

On April 30, 1993, the Commission received from Davis' counsel a motion 

to vacate and set aside the default order. Davis' counsel explained that 

Davis had been negotiating a settlement in this matter, and did not understand 

that a default judgment would be entered against it during ongoing settlement 

negotiations. 

The judge's jurisdiction over this case terminated when his decision was 

issued on April 23, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the 

Commission 6 s procedural rules, relief from a judge's decision may be sought by 

filing a petition for discretionary review with the Commission within 30 days 

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

Davis' motion to be a timely filed Petition for Discretionary Review, which we 

grant. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September 

1988). On the basis of the present record, we are unable to evaluate the 

merits of Davis' position. In the interest of justice, we remand this matter 

to the judge, who shall determine whether default is warranted. See HickotY 

Coal Co., 12 FMSHRC 1201, 1202 (June 1990). 

795 
For the reasons set forth above, we vacate the judge's default order and 

remand this matter for further proceedings. 

Distribution 

Marshall B. Douthett, Esq. 

239 Main Street 

Jackson, OR 45640 

Kenneth Wilson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

881 Federal Bldg. 

1240 East Ninth St. 

Cleveland, OR 44199 

Arlene Holen, Chairman 

c;L:_<--(_~~L . 

Richard V. Backley, Commissione~~ 

J ~tt~ yce A. Doyle, Commiss~one 

Ghi~f Administrative Law Judge Paul Merlin 

Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

796 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

A-1 GRIT COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Hay 27, 1993 

Docket No. WEST 92-527-M 

BEFORE: Holen, Chairman; Backley and Doyle, Commissioners 

ORDER 

BY: Holen, Chairman; Backley and Doyle, Commissioners 

This civil penalty proceeding arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 22, 

1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to 

A-1 Grit Company ("A-1") for failing to answer the notice of proposed civil 

penalty filed by the Secretary of Labor or the judge's October 27, 1992, Order 

to Show Cause. The judge assessed the civil penalty of $942 proposed by the 

Secretary. For the reasons that follow, we vacate the default order and 

remand this case for further proceedings. 

On May 13, 1993, the Commission received a letter from A-1 asserting 

that it had timely responded to the judge's show cause order. A-1 attached to 

this +etter a copy of a U.S. Postal Service return receipt purporting to show 

that it filed a response. We note, however, that the order to show cause was 

issued on October 27, 1992, not on November 27, 1992, as A-1 asserts. A-1 

requests that the order of default be vacated. 

The judge's jurisdiction over this case terminated when his decision was 

issued on April 22, 1993. 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 with the Commission within 30 days 

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

A-l's letter to be a timely filed Petition for Discretionary Review, which we 

grant. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September 

1988). On the basis of the present record, we are unable to evaluate the 

merits of A-l's position. In the interest of justice, we remand this matter 

to the judge, who shall determine whether default is warranted. See Hickory 

Coal Co., 12 FMSHRC 1201, 1202 (June 1990). 

797 
For the reasons set forth above, we vacate the judge's default order and 

remand this matter for further proceedings. 

Arlene Holen, Chairman 

Richard V. Backley, 

-t:~~~/ Commissioner ~ 

Distribution 

Samuel Newman 

A-1 Grit Company 

P.O. Box 12 

Redlands, CA 92373 

J. Mark Ogden, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

3247 Federal Bldg. 

300 N. Los Angeles St. 

Los Angeles, CA 90012 

Chief Administrative Law Judge P~ul Merlin 

Federal Mine Safety & Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

798 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 4 1993 

WALTER L. McMICKENS, 

complainant 

. . 

. . DISCRIMINATION PROCEEDING 

v. 

: Docket No. SE 92-452-D . 

0 

: BARB CD 92-29 

JIM WALTER RESOURCES, INC., 

Respondent 

. . 

: No. 7 Mine 

Appearances: 

Before: 

DECISION 

Ralph E. Coleman; Esq., Coleman & Friday, 

Birmingham, Alabama, for the Complainant; 

David M. Smith, Esq., Mark Strength, Esq., 

MAYNARD, COOPER, FRIERSON & GALE, R. Stanley 

Morrow, Esq., Jim Walter Resources, ·Inc., 

Birmingham, Alabama, for the Respondent. 

Judge Koutras 

statement of the case 

This proceeding concerns a discrimination complaint filed by 

the complainant Walter L. McMickens against the respondent Jim 

Walter Resourcesv Inc. (JWR)u pursuant to section l05(c) of the 

Federal Mine Safety and Health Act of 1977 0 30 U.S.C. § 815(c). 

Mr. McMickens filed his initial complaint with the Secretary of 

Labor, Mine Safety and Health Administration (MSHA), on April 15, 

1992, and by letter dated July 17, 1992, he was advised by MSHA 

that after review of the information gathered during its 

investigation of his complaintv MSHA determined that a violation 

of section 105(c) of the Act had not occurred. Subsequently, on 

August 17 0 l992u Mr. McMickens filed his complaint with the 

Commission. 

The complainant alleges that the respondent discriminated 

against him when it laid him off from his employment as a foreman 

after he was examined by x-ray pursuant to section 203 of the Act 

and found to have evidence of category I simple pneumoconiosis. 

He further alleges that his layoff was the result of his having 

exercised his right to request a dust free environment, and that 

the respondent responded to his request by placing him on a job 

that subjected him to dust, and that during subsequent mine 

inspections, kept him away from his work area before the 

inspections in order to meet the requirements of MSHA's 

respirable dust regulations. 

799 
The respondent filed an answer to the complaint denying any 

discrimination and contending that the complainant was laid off 

during an approximate 25% reduction in its work force. A hearing 

was held in Birmingham, Alabama, and the parties filed posthearing arguments which I have considered in the course of my 

adjudication of this matter. 

Issue 

The critical issues in this case are whether or not the 

complainant's termination was prompted or motivated in any way by 

his Part 90 miner status, and whether or not the respondent 

discriminated against the complainant by placing him on a job 

subjecting him to dust after he had requested a dust free working 

environmento 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

3 0 U.S • C. § 3 o 1 et seq. , " · · 

2. Sections 105(c)(1), (2) and (3) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. §§ 815(c)(l), 

(2) and (3). 

3. Commission Rules, 29 C.F.R. § 2700.1, et seq. 

4. Part 90, Title 30, Code of Federal Regulations. 

stipulations 

The parties stipulated to the following (Tro 17-21)~ 

1. The respondent is a large operator covered by the Mine 

Actu and operates underground coal mines in Tuscaloosa 

County, Alabama. 

lo The complainant was a salaried employee at the 

respondent 9 s No. 1 Mine from January 3 0 1980 0 to April lOu 

1992. 

J. When the complainant was laid off, the respondent laid 

off approximately 25 other salaried personnel and 

approximately 125 union personnel from the No. 7 Mine9 

4. The complainant claimed Part 90 status on September 10, 

1991, and after exercising his Part 90 rights, he continued 

to receive the same salary as he had before he exercised 

such rights. 

800 
5. At the time of his layoff, the complainant received 

severance pay equivalent to three and one-half months salary 

and all accrued vacation pay of fifteen days• salary. 

Complainant's Testimony and Evidence 

Walter L. McMickens testified that he previously worked for 

another mining company for 22 years as a union and salaried miner 

working in different jobs, and that he was hired by the 

respondent in 1980 as a salaried section foreman supervising a 

coal production crew. Within 13 months he was advanced to 

assistant mine foreman supervising other coal production 

supervisorso In approximately 1983, there was "a big layoff" and 

all union employees and 20 supervisors were laid off. 

Approximately 14 employees were called back and he supervised 

them in "setting timbers" to protect the beltline and "doing dead 

work".. When the mine started up again, he was assigned as a 

construction foreman. No one complained about his work, and 

while serving as a construction foreman he became familiar with 

the other jobs in the mineu including production, blasting and 

shooting, and did 0'just anything they said to do". He remained a 

construction foreman for approximately seven years from 1984 to 

either 1990 or 1991u and shortly before he became a Part 90 miner 

lhe was assigned to a a'setup crew". After he filed for a Part 90 

Miner designation, general mine foreman Gerald McKinney spoke 

with him about the matter and nasked me what did I expect" 

(Tr. 22-33)o Mr. McMickens stated that he responded to 

Mre McKinney as follows (Tr. 33): 

THE WITNESS: I told him I didn't expect any difference 

whatsoever because I felt like that I was in about as 

good =~ as a setup foremanu out of the dust about as 

good as any place I could be in the mine because 

theregs no dust free atmosphere in the mine. 

And I told him the only thing I wanted was to get it 

on record that if I lived to retire, I might get black 

lunge or ~f I maybe my would get black lungo 

I didngt expect to be changed from the job, even though 

! asked for dust free atmosphere. That was to comply 

with the Federalo 

Mr~ McMickens confirmed that a second mine layoff occurred 

in 1984 or 1985 0 and although he was retained on the job, several 

union employees and several foremen were laid off, and others 

were transferred to other mines (Tr. 51). 

Mr. McMickens identified a copy of a September 6, 1991, 

statement he executed on that date exercising his option to 

transfer as a Part 90 Miner (Tr. 34: Exhibit C-4). He also 

801 
identified a copy of a September 10, 1991, letter from MSHA to 

the respondent informing it of the fact that his medical 

examination reflected that he was eligible for Part 90 miner's 

rights pursuant to the Coal and Mine Acts (Tr. 36; Exhibit C-1). 

Mr. McMickens confirmed that he had x-rays taken periodically, beginning in 1965, each time the mobile x-ray unit came to the 

mine (Tr. 36). 

Mr. McMickens confirmed that in February, 1991, he was still 

working as a construction foreman, or on "general projects", or 

he would "fill in" and perform any job that he was assigned. He 

stated that he did not request the special projects job, and that 

other people also worked on special projects or on specific jobs, 

but that he was "kind of this special projects foreman night 

after night after I came off construction" (Tr. 38)e He 

confirmed that after he requested Part 90 Miner status, the 

respondent was required to test him for dust exposure and obtain 

five samples. He identified Exhibit C~3, as the results of 

sampling during the period october 22, 1991, through April 6, 

1992 (Tr. 40). ·· 

Mr. McMickens stated that during his dust sampling the MSHA 

inspector put the respirable dust testing pump on him at 

11:00 p.m. before he went underground and instructed him to meet 

him "at the end of the track" at 2:30 a.m. Mr. McMickens 

explained that the track area in question was a "fresh air" area, 

and he stated that he was there with the inspector, a company 

representative, and a union safety man from 2:30 until 5:30. 

Mr. McMickens stated that "we sat there and talked till 5:30 in 

the morning", and he indicated that this was the last time he was 

tested by an MSHA inspector before his layoff on April 10, 1992, 

(Tr. 54-56). He confirmed that the inspector and company representatives do not accompany him during the entire shift. 

The inspector hangs the pump on him and starts it up before he 

qoes undergroundu and the inspector removes the pump at the end 

of the shift (Tr. 74)o 

Mro McMickens believed that he was the only salaried 

employee to ever file for that status at the mine. He stated 

that he did so because he was told he had black lung and should 

see his doctor. He identified two salaried employees with less 

seniority who were not laid off when he was (Tr. 57u 65-66). 

Mr. McMickens confirmed that company safety inspector Bobby Taylor notified MSHA by letter dated October 1, 1991, that after 

his designation as a Part 90 miner, he would primarily be working 

as an outby labor foreman, and would also be subject to work as a 

face supervisor if so designated by management (Tr. 77; Exhibit 

C-2). Mr. McMickens confirmed that he did in fact work as an 

outby labor foreman after his Part 90 designation, and that he 

was qualified to do the work of a face supervisor, a job that is 

still open and being performed (Tr. 78). 

802 
On cross-examination, Mr. McMickens stated that he was a 

foreman or supervisor from 1980 until 1992, and at times had 

Part 90 miners under his supervision. He confirmed that he never 

harassed or intimated any miners because of their Part 90 status, 

that mine management never instructed or encouraged him to 

intimidate or discriminate against any Part 90 miners, and that 

during his 12 years of employment with the respondent he knows of 

no instances when a Part 90 miner was ever discriminated against 

because of his status (Tr. 81). 

Mr. McMickens confirmed that he was already working outby 

when he was designated a Part 90 miner, and that before 1991 he 

worked at different jobs involving construction and special 

projects rather than coal production. He stated that he 

supervised a continuous miner section during his first 13 months 

of employment with the respondent, but after that he only 

supervised such a section "for part of a shift from one time to 

another" and not on a full time basis (Tr. 82). He confirmed 

that the volume coal producti~n comes from the longwall and that 

he never worked on a longwall section or supervised such a 

section, and that as of the date of his layoff he was not 

qualified or trained to perform the duties of a longwall foreman 

(Tr. 83). 

Mr. McMickens confirmed that he spoke with Mr. McKinney 

after MSHA informed him of his Part 90 status, and that he 

informed Mr. McKinney that he did not expect any work changes to 

be made and that he simply wanted to document the fact that he 

had black lung and to protect any future benefits that his wife 

might receive. Mr. McMickens acknowledged that there was no dust 

free atmosphere in the mine and that he expected no change. He 

stated that 11 1 was o o o a setup foreman, which I think was in a 

less dusty atmosphere there on that than where I was put" 

{Tro 85)o In response to a question as to whether or not the 

respondent kept him in an environment that was generally less 

dusty than MSHA's regulations required after he was designated a 

Part 90 miner, Mr. McMickens responded as follows (Tr. 85-87): 

Ao You never know what you 8 re going to kick up. When 

you -- go from one section to another, you never know 

how much dust is going to be on the ground or how much 

the air volume is going to be after you get in there. 

There would be a brattice outo You might not have no 

ventilation. You never know until you go into an area 

how much dust you•re gonna be kicking up in the air. 

Q. I understand that. My question is: Did Jim Walter 

seem to try and keep you in a less dusty environment 

generally? 

803 
A. Yeah. 

Q. After you were Part 90, did Jim Walter or any 

management person above you at Jim Walter ever try to 

intimidate you about your Part 90 rights? 

A. No, sir. 

Q. Did they ever try to harass you about your Part 90 

rights? 

A. No, sir. 

Q. Did they ever threaten you? 

A. No, sir. 

Q. Did they ever say, McMickens, you've declared this 

Part 90 status, and I guarantee it•s going to come back 

to haunt you? 

A. No, ain't nobody said nothing like that. 

Q. Did anybody ever say to you or say anything to 

someone else that you heard about that was negative 

about your Part 90 status. 

A. No, sir. 

Q. Before you filed this complaint could you tell the 

Court any example any time in history when Jim Walter 

has taken negative action against a Part 90 Miner 

because of their Part 90 status? 

A. They never did. 

Mr. McMickens confirmed that he has stated under oath to the 

EEOC that his layoff was a result of his age and that his age was 

the determinative factor (Tr. 87). He believed that 137 union 

miners were laid off when he was laid off, and pursuant to the 

labor agreement, they were laid off by seniority. However, 

seniority did not apply to the layoff of salaried personnel 

(Tr. 88). Mr. McMickens stated that he was not aware of any 

economic condition that required a reduction in force in 1992, 

and he did not know that this was the case. He simply believed 

that someone else should have been laid off instead of him 

(Tr. 89). 

Mr. McMickens stated that he was assigned normal and routine 

jobs to do during his respirable dust sampling period, and that 

there was no "hanky panky" in connection with the dust sampling 

(Tr. 90). He further stated that there was no avoidance of any 

804 
dusty conditions in an attempt to hide them from the inspector, 

and he confirmed that the respondent was never cited for 

assigning him work under conditions that were too dusty for Part 

90 miners. He knew of no Part 90 miners ever being cited for 

working in a dusty atmosphere, and as far as he knew, the 

respondent was never cited for samples that exceeded MSHA's dust 

exposure regulations (Tr. 92). 

Tommy R. Boyd, testified that he has worked at the mine 

since 1980, and that he is a longwall helper and serves as the 

union safety representative. On numerous occasions he has 

assisted MSHA inspectors and management in the taking of dust 

samples for Part 90 miners (Tr. 108). He explained the 

procedures followed at the time Mr. McMickens was sampled and 

tested, and he confirmed that a sampling pump can malfunction at 

any time. When this occurs, the miner is resampled in order to 

obtain a full eight-hour sample (Tr. 113-114). He confirmed that 

there were occasions when he was with an inspector during 

midshift to look at Mr. McMicken•s sampling pump, and he 

explained the incident when the inspector met with Mr. McMickens 

at the end of the track as follows at (Tr. 115-116): 

A. We went down -- I know -- I remember the occasion 

you're talking of. We went down and met Mr. McMickens 

at the end of the track, Mr. Phillips, the inspector 

and myself. And we sat there for some three hours on 

the end of the track talking. 

Q. Do you generally·make it a habit of sitting down at 

the end of the track talking three hours? 

THE WITNESS: No~ siro We usually don't do that 

because it ties the mine foreman up, and the mine 

foreman he oversees the whole mines. 

And for that reason -- I don't know why the inspector 

decided to sit and talk for three hours and joke and 

laugh and cut upQ which it did interfere with mine 

operations. 

Mr. Phillips was just as astonished as I was because he 

asked me several times, reckon when he's going to 

leave. He said, we can't leave until the inspector 

gets ready to leave as part of our aid and assist. 

Q. (By Mr. Coleman) Would that, in fact, affect -- as 

far as the reading and the overall dust sample, would 

that affect the --

A. Well, that's three hours. 

Q. -- liability? 

805 
A. That's three hours that he's in fresh air that he 

would have normally been in a possible more dusty area. 

Mr. Boyd stated that the work performed by Mr. McMickens as 

a setup foreman on special projects was 11 outby work" away from 

the areas that were producing coal, and these areas were less 

dusty (Tr. 118-119). 

on cross-examination, Mr. Boyd acknowledged that Mr. Wiggins 

was working as a rock foreman before Mr. McMickens was ever 

declared a Part 90 miner. He also acknowledged that during the 

three-hour conversation with the inspector at the end of the 

track while Mr. McMickens was being sampled, shift foreman 

Phillips wanted the inspector to leave so that Mr. McMickens 

could return to work. Mr. Boyd confirmed that the inspector was 

dictating the course of this event and 11 as long as the inspector sits there, we have to sit there with him" (Tr. 124). 

Respondent's Testimony and Evidence 

Richard A. Donnelly, mine manager, No. 7 Mine, testified 

that the workforce was reduced in April, 1992, because the world 

coal market had declined and the respondent had problems in 

selling its coal at a profit. It therefore became necessary to 

reduce costs and the amount of tonnage produced at all of its 

mines. He participated in the development of an operating plan 

to accomplish the reductions, and he explained the plan as 

follows at (Tr. 131-132): 

A. The plan we came up with entailed running fewer 

miner sections, fewer long walls sections, just basically doinq a lot less of everything that we 

normally dou thereby creating less tonnage. 

At the same time, it reduced dramatically the number of 

people that were required to do these jobs. A lot of 

the expenses that we incurred were reduced. 

So 0 in effectu we ended up eliminating -- I believe the 

number was 134 union jobs and it was 24 supervisors. 

We laid off 23 because one supervisor quit and went 

with another company right in the midst of that. So, 

it was actually a reduction of 24 jobs. 

Q. And the reduction in force of the labor force is 

done by the collective bargaining agreement, right? 

A. Yes, it is. 

Q. How was the evaluation done of which salaried 

persons to lay off? 

806 
A. What we did was look at what jobs had to be 

performed at the reduced levels, how many miner 

sections, how many long wall sections. Just, 

basically, how many jobs there were. And then we went 

through and looked at the people that were available, 

the people that we had on the payroll at the time and 

picked the best people to do those jobs until we filled 

every job. And once we filled each of the jobs, the 

people that were remaining were the people that got 

laid off. 

Mr. Donnelly stated that he arrived at the No. 7 Mine in 

August, 1991, and that Mr~ McMickens received his Part 90 status 

in September, 1991. Mr. McMickens was not involved in coal 

production work and he basically performed "outby dead work" as a 

special projects foreman (Tr. 134). 

Mr. Donnelly confirmed that he participated in the final 

decision to lay off Mr. McMickens and he did not consider his 

Part 90 status to be a negative factor. He was not aware of 

anyone making any negative reference to Mr. McMickens• status. 

Mr. Donnelly confirmed that consideration was given to the fact 

that Mr. McMickens did not like to do production work at the 

face, and this was considered as part of his overall job 

abilities. Mr. Donnelly explained that Mr. McMickens had made 

statements that he did not want to work at the face, that he did 

not want the responsibility of dealing with MSHA and the 

regulations and the pressures involved and that he preferred to 

continue doing work outby. Mr• Donnelly confirmed that this was 

a factor in the decision to lay off Mr. McMickens (Tr. 135). 

On cross-examination, Mr. Donnelly stated that he never 

observed Mro McMickens at his jobu but he was told by other mine 

foremen that Mr. McMickens was an 88 average" supervisor (Tr. 136). 

Mr. Donnelly stated that fewer longwall and miner unit shifts 

were going to be operated and the ability to operate each of 

these sections was a very important consideration in the layoff. 

Mr. Donnelly believed that the longwall faces were the dustier 

areas in the mine 9 and that he would probably not assign a 

Part 90 miner to those areas (Tr. 137). 

Mro Donnelly stated that at the time of the layoff he was 

the deputy mine manager and that Willis Coaxe was the mine 

manager. He confirmed that layoff meetings were held to identify 

and determine the jobs that were to be retained, and to begin to 

select the best people to fill those jobs. Mr. Donnelly 

confirmed that he relied on a large degree on Mr. Phillips or 

Mr. McKinney to tell him who was going to be retained, but he was 

not aware that anyone's personnel records were reviewed as part 

of the selection process. He further confirmed that he and the 

management officials making the selections were aware that 

Mr. McMickens was a Part 90 miner (Tr. 139). 

807 
Mr. Donnelly stated that during his 16 years in a 

supervisory capacity, Mr. McMickens was the only supervisor that 

he was aware of that had Part 90 status. Mr. Donnelly believed 

that such a status would not enhance Mr. McMickens' record with 

the Company (Tr. 139). He confirmed that mine manager Coaxe 

would be the final authority as to who would be laid off and who 

would stay (Tr. 140)e Although seniority was considered, it was 

not the only consideration. He confirmed that Mr. McMickens had 

more seniority than Mr. Bo Wiggins, the person who replaced him, 

and he may have had more seniority than another supervisor 

(Parsons) (Tr. 140-141). 

In response to further questions. Mr. Donnelly reviewed a 

list of names of supervisors who were laid off in April, 1992 

(Exhibit R-1), and he stated that Mr. McMickens may have been 

retained if three more salaried people had been retained, but 

it was his opinion that if only one more person had been retained 

it would not have been Mr. McMickens. He believed that 

Mr. McMickens probably was amongtbe top 10 or 11 people at the 

mine. Mr. Donnelly did not believed that Mr. McMickens was 

qualified for a communication supervisor•s job which involved a 

TV computer network to monitor different mine work areas 

(Tr. 143). 

Mr. Donnelly stated that during the layoff there was no 

particular list prepared of persons to be laid off in any 

particular order. He explained that management knew that a 

number of jobs would be retained and that a certain number of 

people would be laid off. He confirmed that prior to the layoff there were numerous jobs in the category of special projects 

outby foreman on all three shiftsu but that after the layoff 6 

there were very few of those jobs 9 and they were the majority of 

jobs that were eliminated from the operating pl~n (Tr. 144-145). 

Mr. Donnelly stated that Mr. Wiggins and Mr. Parsons are 

presently working on construction foreman jobs, and that 

Mr. McMickens would only fill in temporarily on that job. 

He confirmed that Mr. McMickens performed outby special projects 

work0 and that Mr. Wiggins and Mr. Parsons previously performed 

that kind of work on a very limited basis (Tr. 145). 

Mro Donnelly stated that for the last several years no 

written evaluations of supervisors were made, and he confirmed 

that he and Mr. Coaxe and Mr. McKinney were the main participants 

in the discussions as to who would be retained in the layoff 

(Tr. 147). 

Mr. Donnelly stated that he would not hesitate to put a 

Part 90 miner to work at the face if the mine were in compliance 

with the 1.0 milligram respirable dust requirement. He confirmed 

that he was told that Mr. McMickens did not want to work at the 

face (Tr. 148). 

808 
Gerald E. McKinney, General Mine Foreman, No. 7 mine, 

testified that he has worked with Mr. McMickens and has given him 

work assignments. He stated that Mr. McMickens was a 

construction foreman for several years and changed to a special projects foreman in February, 1990, approximately 18 months 

before his Part 90 status, and he was one of many outby 11 dead 

work" foremen (Tr. 151). 

Mr. McKinney stated that he was involved in the evaluation 

of salaried personnel in 1992, in connection with a reduction of 

the work force. He believed that he knew of the work that 

Mr. McMickens could do and not do. He stated that sometime after 

February, 1990, Mr. Phillips informed him that Mr. McMickens told 

him (Phillips) that he did not want to be on a coal production 

face because of the additional pressures and responsibility of 

that job. This occurred prior to Mr. McMickens' Part 90 status, 

and Mr. McMickens himself told him (McKinney) of his desire not 

to work at the face during a conversation in his office 

(Tr. 153). 

Mr. McKinney reviewed a list of supervisory personnel, 

(Exhibit R-1), and he explained the consideration given to those 

listed during the layoff as follows at (Tr. 154-155): 

Q. All right. And in the context of deciding what 

miners to keep, what salaried personnel to keep, were 

there persons who would have been kept before Mr. 

McMickens on that list; that is, Exhibit 1? 

A. Just glancing over it, there's a couple of people 

that I know were ex-coal runners on the face that did 

produce coal at one time and a couple of long wall 

experienced peopleo 

I would probably myself -- and maybe even some of the 

maintenance people. There would be probably be four or 

five that I would probably -- would fall in line before 

Mra McMickens wouldo 

Q. And you 9 re referring to Exhibit 1? 

Jli.. Right. 

Q. Did you at any time consider Mr. McMickensw Part 90 

status? 

A. No, sir, I did not. 

Q. Did you in any way retaliate against Mr. McMickens 

for exercising his rights as a Part 90 Miner? 

809 
A. No, sir. 

on cross-examination, Mr. McKinney stated that Mr. McMickens 

was his supervisor at one time in the past when he (McKinney) was 

first hired at the mine in 1982. Mr. McKinney recalled an 

incident in which Mr. McMickens was called on to assist in a rock 

fall situation and that he probably commended Mr. McMickens for 

doing a good job. He believed that Mr. McMickens was "a good 

company man" (Tr. 157). 

Mr. McKinney confirmed that one of the criteria for 

retaining an employee during the reduction in force "was that 

everyone we kept we tried to have them where they could either 

fill in on the longwall face or be able to run a miner section " 

(Tr. 158). He denied that Part 90 miners cannot work at the 

face, but did not know where they are assigned on a regular 

basis. He was only familiar with Part 90 miners that operaue 

dust pumps, and stated that there are many such miners that never 

invoke their rights. He confirmed that Mr. Mickens was the only supervisor in his mining experience that had Part 90 status and 

that he "was very surprised" at this because he believed that 

such a status was for union employees (Tr. 159). 

Mr. McKinney confirmed that Mr. McMickens was retained 

during two prior layoffs in 1982 and 1985 prior to his Part 90 

status (Tr. 162). He explained the work experience of 

Mr. Parsons and Mr. Wiggins and stated that "we had an 

opportunity to hire two ex-rock people and we did so. We felt 

that our mines may need them in the future" (Tr. 164). 

Mr. McKinney confirmed that safety director Taylor's letter of 

October 1u 1991, to MSHA, reflects that Mr. McMickens "will be on 

t.he owl shift working primarily as an outby laborer"u and he 

stated that Mro McMickens was already doing that work at that 

time and that he was also subject to working at the face 

(Tr. 165)~ However, due to low coal production, the salaried 

people doing the outby work were all former section foreman who 

were moved to outby jobs to fill in for people who were off ~Tro 166)o 

Paul A. Phillips, shift foreman, No. 1 mine, stated that 

Mr. McMickens worked under his supervision as a supervisory work 

foreman on the owl shiftu and that in April, 1992, at the time of 

the reorganization Mr. McMickens was working as an outby foreman. 

Hedescribed his duties as "changing from night to night" depending on the work to be done, and that "it could go anywhere 

from setting timbers to building seals" (Tr. 168). He considered 

the position of special projects foreman to be the same as an 

outby section foreman. He explained that "outby" involved the 

maintaining of the rest of the mine away from where coal is being 

extracted from the face (Tr. 168). 

810 
Mr. Phillips stated that Mr. McMickens informed him on 

several occasions that "he did not want anything to do with the 

face work, the production of coal" and wanted to stay outby 

because there were less responsibilities, and that these 

statements were made prior to September, 1991 (Tr. 169). He 

confirmed that Mr. McMickens was a construction supervisor before 

he became a special projects foreman, and he considered him to be 

"an average construction foreman" (Tr. 170). He confirmed that 

he was aware that Mr. McMickens elected to exercise his Part 90 

rights. He could not recall exactly when this was done, but 

confirmed that Mr. McMickens was already working in the outby 

area when he learned of his status (Tr. 171). 

Mr. Philips stated that he was not directly involved in the 

decision-making process in connection with the reduction-in-force 

that resulted in Mr. McMickens• layoff (Tr. 171). He evaluated 

supervisors on a daily basis, and denied that anyone's Part 90 

status had any part in his evaluations. He speculated that 

efforts were made to keep sup~~isors who were able to work in 

more than one mine area (Tr. 172). 

Mr. Phillips described the supervisory duties performed by 

Mr. Parsons and Mr. Wiggins, and he believed that Mr. McMickens 

was able to "walk belts", but he would not use Mr. McMickens to 

work at the face on a regular basis and he did not believe he was 

qualified to install belts (Tr. 174-177). 

Mr. Phillips explained what occurred at the time the MSHA 

inspector tested Mr. McMickens for exposure to respirable dust. 

·He stated that after Mr. McMickens put the pump on he was sent to 

his job assignment and when he and the inspector went to check 

the pump "we did sit there longer than usual" and that "the 

inspector calls the shots when he's there" (Tr. 180). 

on cross-examination, Mr. Phillips stated that he did not 

directly or indirectly have anything to do with the decisions to 

layoff or retain employees during the reduction in force which 

affected Mr. McMickens, and he had no knowledge of the management discussions which may have taken place concerning the 

reorganization (Tr. 182). In his opinion, individuals who could 

work at the face and "who could do everything" were retained 

(Tre 183). He confirmed that Part 90 non-salaried miners have 

been assigned to work at the face as a matter of choice by 

bidding on certain jobs, and that the face, area is "a more dusty 

place" (Tr. 184)e 

Mr. McMickens was recalled by the presiding judge, and he 

stated that he could not recall ever stating that he did not want 

to work at the face. He stated that his job was mainly behind 

the longwall rockdusting the crosscuts and that he liked the work 

"because I could stay in the fresh air" and "kind of stay out of 

811 
it yourself and see that the work's done" (Tr. 198). He further 

stated he "might have made that statement for that effect" 

(Tr. 198). He confirmed that he does not deny making the 

statement about not wishing to work at the face, but that he 

could not recall doing so, (Tr. 200). 

Complainant's Arguments 

In his posthearing brief, complainant asserts that the 

respondent discriminated against him when it terminated his 

employment, after twelve years of service, in ~ because he 

exercised his Part 90 miner rights. Complainant maintains that 

the respondent's defense that he was laid off for economic 

reasons is merely a pretext for one of the primary reasons he was 

terminated during the layoff in question. Assuming that I accept 

the respondent's argument that it was going through a period of 

economic adjustment that required some layoffs, the complainant 

points out that he was a good and experienced employee who had 

survived two previous layoffs, and had seniority over some of the 

employees who were retained,-and that in spite of these 

qualifications, he was laid off while others with less seniority, experience, and age, were retained. 

In support of his conclusion that his Part 90 status was at 

least one of the underlying reasons why he was not retained 

during the layoff, the complainant asserts that deputy mine 

manager Richard Donnelly and mine foreman Gerald McKinney both 

testified that he was the only salaried employee or supervisor that they had ever known who had elected to exercise his Part 90 

rights. The complainant points to the statement by Mr. Donnelly 

that a supervisor who elected part 90 status "would not enhance 

his status with the company" by doing so, and that mine foreman 

Gerald McKinney revealed his real opinion of his decision to 

elect Part 90 status when he stated "I was very surprised when I 

learned of it o o ol guess I just never • o • you just kind of 

get in your head. I just kind of thought it was for the union, 

the UMWA people really. And I just never ••• and it just kind 

of shocked me when I learned of it". The complainant concludes 

that these statements reveal bias against his decision to 

exercise his Part 90 rights and shows that the very people who 

made the decision about who was to be laid off took into account 

his Part 90 status in making that decision. 

Citing Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 

(October 1980), rev'd Qn other grounds sub nom. Consolidation 

coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981), and 

several other leading cases, the complainant argues that 

liability pursuant to section 105(c) of the Act is not dependent 

on whether or not an employe has been discriminated against solely because he has engaged in a protected activity, but 

rather, whether his engagement in a protected activity is at 

least part of the reason for the adverse discriminatory action 

812 
taken against him. The complainant concludes that because the 

evidence shows that the respondent's decision to lay him off was 

based in part on his Part 90 status, in direct violation of 

section 105(c) of the Act, he is entitled to reinstatement and 

back pay. 

The complainant takes the position that the evidence 

presented in this proceeding supports a reasonable inference that 

the respondent's decision to terminate him during the 1992 layoff 

was motivated, at least in part, by the fact that he was a part 

90 employee. Under the circumstances, and given the fact that 

the presiding judge refused to dismiss the matter at the close of 

his case, the complainant concludes that it has established a 

prima facie case. In support of this conclusion, the complainant 

states that it is undisputed that his election to exercise his 

Part 90 rights is considered a protected activity. The 

complainant asserts that the evidence establishes that he was a 

good, experienced and dedicated employee who had survived two 

previous layoffs involving a,~arge number of people, and that he 

was experienced and qualified to work in a number of different 

areas in the mine. He cites the testimony of the miner's 

representative and safety committeeman, Tommy Boyd, attesting to 

his experience as a rock and pillar worker who was able to do 

"whatever it took", and Mr. Boyd's confirmation of the fact that 

the two employees (Wiggins and parsons) who took over his duties 

after the layoff were not Part 90 miners and were not laid off. 

The complainant points out that he had seniority over some 

of the employees who were retained in the layoff, that seniority 

was a consideration during the layoff, and that prior to the 

layoff, he had never been told or informed in any way that his 

work needed improvement, and there was never any indication of 

any problem with his job performance at any time. 

The complainant argues that even assuming that the 

respondent's contention that he was terminated as a part of a 

general layoff resulting from economic consideration is 

supportableu the respondent must still establish by a 

preponderance of the evidence that he would have been terminated 

during this general layoff even if he had not engaged in 

protected activity. 

In response to the testimony of the witnesses who 

participated in the decision to terminate him (Donnelly and 

McKinney), the complainant points out that they produced no 

personnel records or any other business records substantiating 

that he_would have been laid off under any circumstance, and that 

no records were kept regarding the discussions to determine who 

was to be laid off, and none have been introduced by the 

respondent. The complainant finds it "even more puzzling", that 

mine manager Willis Coaxe, one of the supervisors making the 

decision about who to retain and who to layoff, did not testify 

813 
in this case, and that his motive for the termination cannot be 

ascertained. 

The complainant further points out that although deputy mine 

manager Donnelly, who participated in the layoff decision, 

admitted that he had only been on the job site a short time and 

knew nothing about his work or abilities, Mr. Donnelly did know 

that he was a Part 90 employee. The complainant finds it 

difficult to imagine that Mr. Donnelly could make any meaningful evaluation of his work without his personnel records or other 

information, except for the verbal input of foreman McKinney. The complainant concludes that the only thing Mr. Donnelly was 

sure of was that he was the only supervisor he ever knew of to 

exercise his Part 90 rights, and that the exercise of those 

rights would not "enhance his position with the company". (I take note of the fact that the actual statement made by 

Mr. Donnelly was that the complainant's status "would not ·enhance 

his record with the company" (Tr. 139). 

The complainant asserts 'that mine foreman McKinney was the 

only witness who could testify about his true work skills and 

qualities, and that Mr. McKinney had good things to say about 

him, including selecting him to assist in the excavation of a 

trapped miner on one occasion, and commenting that he had done a 

"Good job" on another occasion. Complainant also makes reference 

to Mr. McKinney's testimony that he was "a good company man" and 

worked every day, and that these were his "strong points". 

In response to the respondent's affirmative defense, the 

complainant asserts that in Simpson v. Kent Energy, Inc., 

11 FMSHRC 770 (May 1989), the company alleged that economic 

considerations justified the layoff of an employee who had 

engaged in protected activity, but that "The Court" (Commission)u 

rejected the argument after concluding that the company's failure 

to produce any records or written evidence explaining the layoffs 

was insufficient to prove the affirmative defense by a 

preponderance of the evidence. The complainant cites the 

following from the decision, at 11 FMSHRC 779: 

The judge weighed respondentia evidence and found it 

lacking. Jackson¥s testimony lacks specificity as to 

how seniority was calculated. It also lacks certainty 

as to the seniority of the two laid-off miners or the 

retained miners in relation to Simpson, and as to how 

"job qualification" and family considerations figured into Jackson's decisions regarding layoffs. Further, 

the respondents did not introduce seniority lists or 

business records explaining the layoff decisions or the 

effects of the alleged recession on the mine's 

operation. 

814 
The complainant concludes that the facts in his case and 

those presented in the Simpson case "are remarkably similar and 

command the same result". In support of this conclusion, the 

complainant asserts that in both cases the company was claiming that general economic conditions were the reason for the layoff, 

and in both cases the company produced no documentary evidence to 

substantiate their affirmative defense. In the instant case, the 

complainant points out that in the absence of any written 

documentation to support the respondent's claim, and the positive 

testimony of the only company witness (McKinney) who did have 

personal knowledge about Mr. McMickens' skills and experience, it 

is clear that the respondent has not proved by a preponderance of 

the evidence that Mr. McMickens was laid off as part of a general layoff. The complainant concludes further that the respondent's 

defense is a mere pretext for the primary reason he was chosen 

over other employees to be laid off -- his Part 90 status. 

The complainant takes note of the fact that it appears from 

"Exhibit E", a copy of which was attached to its brief, that a 

number of Part 90 employees were affected by the April, 1992 

layoff, although their names do not appear on the Exhibit 

produced at the hearing in this matter. The complainant 

concludes that if, in fact, a number of Part 90 employees were 

terminated during the layoff, the case for discrimination against him would be that much stronger. The complainant further notes 

that while there is a discrepancy in the testimony as to why he 

expressed a preference not to work at the face, (he said it was 

because he wanted to avoid the dusty conditions which might 

further exacerbate his pneumoconiosis and Mr. Donnelly and Mr. 

McKinney were under the impression it was because he did not want 

the responsibility)u the testimony of all of the witnesses is 

consistent to the extent that he was merely stating a 

owpreferencen -- u'if at all possible" not to work at the face, and 

he did not give any indication that he would not perform the 

work. In fact, the complainant points_ out that even after he 

elected Part 90 status, the respondent notified the Department of 

Labor that he would be subject to work at the face at the 

discretion of his supervisors and that foreman Phillips testified 

that he assigned him work on the face when ne~essary, although 

not regularly" 

The complainant asserts that the impact of the testimony 

concerning his preference not to work at the face is significant only to the extent that both Mr. Donnelly and Mr. Phillips 

testified that "the face" probably would not be a suitable place for a Part 90 worker because of the dusty conditions, even though 

it may not be "forbidden" by the regulations. The complainant concludes that if Mr. Donnelly and Mr. McKinney decided to 

terminate him because they did not think that the face was an 

appropriate place for a Part 90 worker, even though it might 

technically qualify under Part 90, then they are, in effect, 

discriminating against him because of his Part 90 status, which 

815 
is still a violation of Section 105(c). The complainant further 

concludes that the fact that he also stated a "preference" not to 

work on the face "if at all possible" was not a statement that he 

would not do so, and he should not be penalized or discriminated 

against because he stated that preference, particularly in light of the fact that the supervisors also stated that they 

"preferred" that a Part 90 employee not work on ·the face. The 

fact that he had worked on the face at the direction of 

Mr. Phillips since he had elected Part 90 status is sufficient 

evidence of the fact that he was willing to do whatever was 

necessary, although it was not his preference. 

Respondent's Arguments 

Citing several appropriate decisions, including cases 

involving Part 90 miners, the respondent agrees that to support a 

prima facie discrimination case under section 105(c) of the Act, 

the complainant bears the burden of production and proof to 

establish that (1) he engagad in protected activity, and (2} that 

the adverse action complained of was motivated in any part by that activity. Hatter v. Franklin Coal Co., 8 FMSHRC 1374, 1383 

(September 1986): Mullins v. Beth-Elkhorn Coal Corp., 9 FMSHRC 

891, 895 (May 1987); Goff v. Youghiogheny & Ohio Coal Co., 

8 FMSHRC 1860, 1863 (December 1986); Hall v. Clinchfield Coal 

Co., 8 FMSHRC 1624, 1628 (November 1986); McCracken v. Valley 

Camp Coal Co., 2 FMSHRC 928, 932 (April 1980). ·The respondent 

further agrees that it may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was in no way motivated by the protected activity, and 

that once it establishes a legitimate cause for the discharge, the complaining miner must then show by affirmative and 

persuasive evidence that the invocation of such cause was merely ~ pretext for unlawful motiveu and that the ultimate burden of 

persuasion does not shift from himo 

The respondent asserts that in order to establish a prima 

facie case of discrimination, the complainant in this case has 

the burden to show that he engaged in protected activity by 

exercising his rights as a part 90 miner and that his termination 

during the April 1992 reduction in force was motivated by the 

exercise of those rightso The respondent takes the position that 

the complainant has not established a prima facie case, and in 

support of this conclusion cites the testimony of the complainant 

that he became a 01 setup foreman" shortly before he became a 

Part 90 mineru and that after achieving that status he told 

foreman McKinney that he did not expect any different treatment 

because he felt that the setup foreman position that he occupied 

was ••out of the dust about as good as any place he could be in 

the mine because there's no really dust free atmosphere in the 

mine". The respondent points out that the complainant did not 

request that Mr. McKinney transfer him to the setup foreman 

position after he obtained Part 90 status, and in fact told 

816 
Mr. McKinney that he did not "expect any change whatsoever", and 

"did not want a change made 9', and that the only reason that he 

filed for Part 90 classification was "to get it on record that if 

I lived to retire, I might get black lung (benefits), or if I 

died maybe my wife would get.black lung (benefits)". 

The respondent further argues that the complainant confirmed 

that he was already doing outby work prior to becoming a Part 90 

miner, that he had been doing such outby work since before 1991, 

and that this work involved construction and special projects, 

and not coal production. The respondent points out that the 

complainant admitted that the respondent seemed generally to keep 

him in a less dusty environment after he became a Part 90 miner, 

and that according to his own testimony, he did not assert any 

Part 90 transfer rights. Citing Mullins Vo Beth-Elkorn Coal ~., 7 FMSHRC 1819 6 1837 (November 1985), the respondent argues 

that a miner is not entitled to exercise his Part 90 rights 

unless he is working in an atmosphere which has a concentration 

of more than 1.0 milligrams of respirable dust, and that in this 

case there is no notable evidence that the dust concentration in 

the area in which the complainant was working prior to the 

reduction in force exceeded the limits imposed by Part 90. Under 

all of these circumstances, the respondent concludes that the 

complainant could not have exercised any Part 90 rights even if 

he had desired to do sou and that the testimony supports a 

conclusion that he either did not assert any Part 90 transfer 

rights or that he explicitly waived such rights. 

The respondent concludes that the complainant has failed to 

show that his layoff was motivated by an alleged exercise of his 

Part 90 rights, and it takes the position that his case is 

factually similar to McCracken Vo Valley Camp Coal Co., 2 FMSHRC 

928 (April 1980)o In McCrackenu the complainant was laid off 

during a reduction in force in which 137 union employees and 14 

supervisors were laid off 0 and as in the instant caseq the 

complainant asserted a claim that he was qualified for 

underground mining positions and that he should have been 

considered for such positions. The respondent took the position 

that the complainant did not have the ability to perform 

available work~ and Judge Melick ruled that the complainant 9 s 

discharge resulted from a legitimate reduction in force. 

McCrackenu 2 FMSHRC at 929. 

In response to the complainantQs assertion that he had more 

seniority andjor was more qualified than other supervisors who 

were not terminated during he reduction in force, and that these 

supervisors (Parsons and Wiggins) began performing all or part of 

his job duties after the reduction in force, the respondent cites 

the Commission's decision in Mullins v. Beth-Elkhorn Coal Corp., 

9 FMSHRC 891, 899 (May 1987), holding that the Mine Act "is not 

an employment statute", and it concludes that the complainant's 

claims as to who should or should not have been terminated during 

817 
the reduction in force are not appropriate subject matter for 

t.hese proceedings. 

In further support of its argument, the respondent points 

out that when asked how it was that Part 90 affected his layoff, 

the complainant stated that he only has a 60% hearing loss in one 

ear, that he was a good employee for 12 years, and that the 

respondent does not want MSHA inspectors coming to the mine to 

take dust samples because they may discover other violations 

while they are present at the mine. The respondent concludes 

that there is absolutely no evidence in this case to indicate 

anything other than the complainant was laid off during a 

legitimate reduction in force, and that he has failed to 

establish a prima facie case under section 105(c) of the Act. 

Even assuming that the complainant has established a prima 

facie case, the respondent argues that his layoff was in no way 

motivated by any alleged protected activity. In support of this 

conclusion, the respondent cites the uncontradicted testimony of 

Mr. Donnelly that the work force at the No. 7 Mine was reduced in 

April 1992, because the world coal market was in decline and the 

respondent was experiencing difficulty selling its coal at a 

profit. Under these circumstances, the respondent asserts that 

it was necessary to reduce coal production at all of its mines, 

and that the evaluation of which salaried employees were to be 

laid off was accomplished by examining the number of jobs 

available at the reduced level of operations and then filling 

these jobs with the most qualified persons. Respondent states 

that there is uncontradicted testimony that the complainant had 

no desire to work in a coal production position and that his 

preference for avoiding work at the face was pivotal in the 

respondentas decision not to retain him. 

The respondent cites Mr~ McKinney's undisputed testimony 

that prior to his classification as a Part 90 miner, the 

complainant told Mr. McKinney that he did not want to be assigned 

to the coal production face due to additional job pressures and 

responsibilities associated with face work, and that in 

implementing the reduction in force 9 an effort was made to keep ~mployees who were able to fill in on a longwall face or who 

could supervise a miner section. The respondent also states 

'that the uncontradicted testimony of Mr. Phillips reflects that 

on several occasions prior to September 1991, the complainant 

told Mr. Phillips that he did not want anything to do with coal 

production at the face and that he wanted to continue to do outby 

work so that he would not have to comply with the laws applicable 

to face work. 

The respondent concludes that it effectuated a legitimate 

reduction in force in April 1992, properly followed its 

procedures during the reduction in force, and that the 

complainant was laid off during the reduction in force without 

818 
regard to his Part 90 status. Respondent further concludes that 

it has rebutted the prima facie case that the complainant has 

attempted to establish, and that the complainant has elicited no 

affirmative and persuasive evidence that the legitimate cause for 

his termination was merely a pretext for unlawful motive on the 

part of the respondent. 

Findings and Conclusions 

In order to establish a prima facie case of discrimination 

under section lOS(c) of the Mine Act, a complaining miner bears 

the burden of production and proof to establish (1) that he 

engaged in protected activity and (2) that the adverse action 

complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidation Coal Company, 

2 FMSHRC 2768 (1980) 6 rev'd on other grounds sub nom. 

Consolidation Coal Company v. Marshall, 663 F.2d 1211 (2d Cir. 

1981); Secretary on behalf of Robinette v. United Castle Coal 

Company, 3 FMSHRC 803 (1981) :""Secretary on behalf of Jenkins v. 

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on 

behalf of Chacon v. Phelps Doge Corp., 3 FMSHRC 2508, 2510-2511 

(November 1981) rev'd on other grounds sub ngm. Donovan v. 

Phelps Dodge Corp.u 709 F.2d 86 (D.C. Cir. 1983). 

The operator may rebut the prima facie case by showing 

either that no protected activity occurred or that the adverse 

action was in no way motivated by protected activity. If an 

operator cannot rebut the prima facie case in this manner it may 

nevertheless affirmatively defend by proving that it was also 

motivated by the miner's unprotected activities alone. The 

operator bears the burden of proof with regard to the affirmative 

defenseo Haro Vo Magma Copper CompanyQ 4 FMSHRC 1935 (1982)o 

The ultimate burden of persuasion does not shift from the 

complainanto Robinetteu supra. See also Boich Ve FMSHRC, 719 

Fc2 194 {6th Cire 1983); and Donovan v. Stafford Construction 

Company, No. 83-1566 D.C. Cir. (April 20, 1984) (specificallyapproving the Commissionws Pasula-Robinette test). See also NLRB 

Va Transportation Management Corporation, ___ U.So ____ v 76 ed~2d 661 ~198Jpf where the Supreme Court approved the NLRB;s 

virtually identical analysis for discrimination cases arising 

under the National Labor Relations Acto 

Direct evidence of actual discriminatory motive is rareo 

Short of such evidenceu illegal motive may be established if the 

facts support a reasonable inference of discriminatory intent. 

Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2510-11 (November 1981), rev 1 d on other grounds sub nom. Donovan~. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983); 

Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984). 

As the Eight Circuit analogously stated with regard to 

discrimination cases arising under the National Labor Relations 

819 
Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th 

Cir. 1965): 

It would indeed be the unusual case in which the link 

between the discharge and the (protected] activity 

could be supplied exclusively by direct evidence. 

Intent is subjective and in many cases the 

discrimination can be proven only by the use of 

circumstantial evidence. Furthermore, in analyzing the 

evidence, circumstantial or direct, the [NLRB] is free 

to draw any reasonable inferences. 

Circumstantial indicia of discriminatory intent by a mine 

operator against a complaining miner include the following: 

Knowledge by the operator of the miner's protected 

activities; hostility towards the miner because of his 

protected activity; coincidence in time between the 

protected activity and the adverse action complained 

of; and disparate treatment of the complaining miner by 

the operator. 

Protected Activity 

Section 105(c) (1) of the Mine Act provides in pertinent part 

as follows: 

No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

exercise of the statutory rights of any miner, 

representative of miners or applicant for employment in 

any coal or other mine subject to this Act * * * 

because such miner, representative of miners or 

applicant for employment is the subject of medical 

evaluations and potential transfer under a standard 

published pursuant to section 101 * * *· (Emphasis addedc) 

The mandatory health standards authorized by section 

10l(a)(7) of the Mine Act, are found at 30 c.F.R. Part 90. 

Pursuant to those regulations, a miner employed at an underground 

coal mine or at a surface area of an underground coal mine may be 

eligible to work in a low dust area of the mine where there has 

been a determination that he has evidence of pneumoconiosis. Xf 

there is evidence of pneumoconiosis, a miner may exercise his 

option to work in a mine area where the dust levels are below 

1.0 milligrams per cubic meter of air. 

Xn Goff v. Youghiogeny & Ohio Coal Co., 7 FMSHRC 1776, 

1780-81 ,(November 1985), the Commission held that section 105(c) 

of the Act bars discrimination against or interference with 

820 
miners who are "the subject of medical evaluations and potential transfer" under the Part 90 standards. However, the Commission 

has recognized that a miner's Part 90 rights, and the protection 

afforded him in that status, are not unlimited and that he is not 

entitled to work in a mine environment totally free of respirable dust. Goff v. Youghiogeny & Ohio Coal Co., 8 FMSHRC 1860, 1865 

(December 1986). 

In Martha Perando v. Mettiki Coal Corporation, 10 FMSHRC 491 

(April 1988), the Commission held that even if the complaining miner suffering from industrial bronchitis were included within 

the scheme of MSHA's Part 90 regulations, she would not have had 

a right under those provisions to transfer with pay retention to 

a less dusty position since her underground work areas were 

consistently below the required Part 90 respirable dust level of 

1.0 mgjm3 • The Commission also observed that "Exposure to some 

amount of respirable dust is inherent in virtually all 

underground coal mining", FMSHRC at 496. 

In Jimmy R. Mullins v. Beth-Elkhorn Coal Corporation, et ~, 9 FMSHRC 891 988 (may 1987), the Commission observed that 

the Mine Act 11 is not an employment statute", and it held that 

while a Part 90 miner has the right to be transferred to g position satisfying the requisite Part 90 criteria, he is not 

entitled to dictate to the operator or otherwise specify the 

particular position to which the transfer must be made. The 

Commission further held that "placement in A position meeting the 

relevant dust concentration criteria is all that is required", and that "the fundamental purpose of these transfer provisions is 

the protection of miners' health--not the distribution of 

specific jobs"u 9 FMSHRC 895 0 897o 

The record in this case establishes that the complainant 

engaged in a protected activity when he filed for, and received, 

Part 90 miner status, and that he suffered an adverse personnel 

action when he was laid off. However, the critical quesiton is 

not whether the respondent treated the complainant in a 

reasonably fair manner when it laid him off, but whether or not 

the layoff was made in any part because of the complainant's 

Part 90 status. As appropriately noted by Commission Judge Broderick in Jimmy Sizemore and David Rife v~ Dollar Branch Coal 

Company, 5 FMSHRC 1251, 1255 (July 1983), " ••• the Commission 

has no responsibility to assure fairness in employment relations 

or to determine whether an employee was discharged for cause, but 

only to protect miners exercising their rights under the Act". 

And, as_stated by the Commission in Bradley v. Belva Coal Co., 

4 FMSHRC 982 (June 1982), "our function is not to pass on the 

wisdom or fairness of such asserted business justifications, but 

rather only to determine whether they are credible and, if so, 

821 
whether they would have motivated the particular operator as 

claimed". 

The Alleged Discrimination 

In his initial complaint filed with MSHA, the complainant 

asserted that he elected to transfer to a less dusty atmosphere 

upon notification of his option to transfer as a Part 90 Miner. 

However, the evidence reflects otherwise, and the complainant 

confirmed that he did not request or exercise any transfer rights 

as a result of his Part 90 status. He admitted that he did not 

expect or want any changes made in his work status, and that he 

only filed for Part· 90 status in order to preserve any future 

claims for black lung benefits. Further, the complainant 

admitted that he was already doing work outby the face prior to 

his Part 90 designation, and that the respondent generally kept him in a less dusty environment after that designation. 

Although the complainant alluded to his Part 90 status at 

the time he filed his MSHA complaint, and expressed his belief 

that his status contributed to his layoff, the thrust of his 

complaint was his assertion that he was laid off because the 

respondent wished to retain younger foremen. Indeed, in the 

course of the heiarng, the complainant confiremd that in his 

sworn complaint filed with the EEOC in connection wiht his age 

discrimination complaint, he took the positon that his age was 

the determinative factor for his layoff. 

In the absence of any direct evidence that management's 

decision to lay off the complainant was motivated in part by his 

Part 90 statusu a discriminatory motive may be determined by 

circumstantial evidence showing that management was hostile 

towards him because his statusu the coincidence in time 

between his filing for and receiving that status 9 and any 

disparate treatment accorded him because of his status. Although 

a resonable inference of motivation may be drawn from such 

circumstantial evidence, Secretary ex rel. chacon Ve Phelps Dodge 

Corp.u supra; Sammons Vo Mine Services Co.u supra, there must be 

credible evidence of discriminatory inent or credible evidence 

from which a reasonable inference of discrimination or 

driscriminatory intent can be drawn~ Branson Vc Price River Coal 

Co.ff 853 F.2d 786 9 (lOth Cire 1988)o 

I find no evidence of any disparate treatment of the 

complainant by the respondent, and the record establishes that he 

was not the only salaried foreman affected by the layoff. The 

complainant confirmed that the respondent never intimidated, 

harrasssed, or threatened him because of his Part 90 status, and 

never said anything negative about his statuss The complainant 

further confirmed that the respondent had never taken any 

negative action against any employee because of their Part 90 

status. 

822 
I find no evidence to support the complainant's claim that 

the respondent placed him on a job which subjected him to dust in 

response to his request for a dust free environment, and that the 

respondent deliberately kept him away from his work area in order 

to meet MSHA's respirable dust standards prior to any inspections. The only incident alluded to by the complainant 

concerned a three-hour discussion in "fresh air" in the company of an MSHA inspector, a union safety representative, and a 

company representative, at a time when the complainant was 

wearing a respirable dust sampling device. The credible 

testimony regarding that incident reflects that the inspector was 

in control and responsible for any delay in the complainant's 

returning to work. Further, the complainant himself confirmed 

that during his respirable dust sampling period, he was assigned 

to his normal work duties, that there was no "hanky panky" 

connected with the sampling, and there was no avoidance of any 

dusty working conditions in an attempt to hide them from an 

inspector. The complainant also confirmed that the respondent 

was never cited for assigning himwork under dusty conditions, 

that he knew of no Part 90 miners ever being cited for working under dusty conditions, and that the respondent had never been 

cited for exceeding MSHA's dust exposure regulations. 

Mr. Donnelly confirmed that the reduction in force which 

affected the 134 union jobs was accomplished under the collective 

bargaining agreement, and in the absence of any evidence to the 

contrary, I assume that miners affected by the reduction were 

afforded their appropriate union protection. However, as a 

salaried supervisory management employee, and in the absence of 

any evidence to the contrary, I assume that the complainant had 

no formal layoff retention rights, and that his continued 

employment was at the discretion of mine management. The 

complainant confirmed that he had no seniority rights, and the 

record reflects that he received severance and accrued vacation 

pay when he was laid off. 

Citing Simpson v. Kent Energy. Inc., 11 FMSHRC 770 (May 

1989) 0 the complainant suggests that in order to establish the 

legitimacy of the layoff 6 and to support its contention that the 

reduction in force was necessary because of adverse economic 

conditions affecting the world coal market, it was incumbent on 

the respondent·to provide written documentation and business 

records to support this claim. In the absence of such 

documentation, the complainant would totally discount the 

testimony presented by the respondent in support of the propriety 

of the layoff. 

In the Simpson case, the Commission observed that the trial 

judge weighed the respondent's evidence and found it lacking in 

specificity and certainty, and the Commission cited several 

transcript references reflecting the respondent's rather 

equivocal testimony, highlighted by a number of "guesses", 
concerning certain critical facts connected with the layoff in 

question. It was in this context that the Commission observed in 

part at 11 FMSHRC 779 1 that the company "did not introduce 

seniority lists or business records explaining the layoff 

decisions or the effects of the alleged recession on the mine's 

operation". In short, the Commission affirmed the trial judge's 

credibility findings, and I find nothing in the decision to 

support any conclusion or general rule that the only evidence 

worthy of belief is written documentary business records. 

The record in this case reflects that the respondent took 

the pretrial deposition of the complainant. However, the 

complainant did not depose any of the respondent's witnesses, 

including the mine manager, (Willis Coaxe) 9 who made the final 

decision to lay him offQ Although Mr. Coaxe was not called to 

testify in this case, there is no evidence that he was not 

available and the complainant did not subpoena him. Further, the 

complainant apparently made no attempt to seek out any 

documentary evidence from the·respondent through pretrial 

discovery. 

The evidence reflects that prior to 1991, the complainant 

worked at different jobs tasks involving construction and special 

projects, rather than coal production, and that his supervision 

of a continuous miner section on a full time basis took place 

during his initial 13 months of employment, and on a part-time 

basis thereafter (Tr. 82). The complainant acknowledged that 

.most of the coal production took place at the longwall sections, 

and he conceded that he had never worked on, or supervised, such 

a section and that he was not qualified or trained to perform the 

duties of a longwall foreman (Tro 83)o The evidence also 

reflects that most of the complainant 8 s work experience was in 

the outby areas of the mineo 

Shift foreman Phillipsu who supervised the complainant 1 s 

worku confirmed that he evaluated his supervisors on a daily 

basis and that he considered the complainant to be "an average 

construction foremanv8 o General mine foreman McKinney u who also 

was familiar with the complainant 9 s work, confirmed that during 

the layoff consideration he reviewed a list of salaried 

supervisory personnel that included individuals with longwall and 

coal face production experienceo and that four or five of these 

individuals would be retained ahead of the complainant. Both 

Mro Phillips and Mro McKinney confirmed that salaried personnel 

with longwall or face coal production experience, or those 

experienced in supervising a miner section, were given preference 

during the reduction in force and layoff. 

Mine Manager Donnelly acknowledged that he had never 

personally observed the complainant's work, and he indicated that 

no written evaluations of supervisors were made for several years 

prior to the layoff in question. However, he confirmed that in 

824 
his discussions with other supervisory foreman who were aware of 

the complainant's work, the complainant was characterized as an 

"average" supervisor. Mr. Donnelly further confirmed that the 

reduction in force brought about by the adverse coal market would 

result in fewer longwall and continuous miner work shifts, and 

that it was critical to retain personnel skilled in those jobs. 

Mr. Donnelly acknowledged that he was aware of the 

complainant's statements that he did not like to do face 

production work because he did not wish to accept the 

responsibilities and pressures of that kind of work and preferred 

to continue working outby, and that this was a factor that he 

considered in the decision not to retain him. Mr. McKinney 

confirmed that the complainant told him that he did not want to 

work on a production face because he did not want the additional 

responsibilities and pressures of such a job, and that 

Mr. Phillips also informed him about similar statements made to 

him by the complainant. Mr. Phillips confirmed that the 

complainant had indeed made such statements to him. 

The complainant's testimony concerning the statements 

attributed to him is both equivocal and unconvincing. He 

testified that "he might have made" the statements, did not deny 

making them, but indicated that he simply could not recall 

(Tr. 200). Having viewed Mr. Donnelly, Mr. McKinney, and 

Mr. Phillips in the course of the hearing, I find them to be 

credible witnesses, and I believe that the complainant made the 

statements in question. Under the circumstances, I do not find 

Mr. Donnelly's consideration of these statements during his 

layoff deliberations to be unusual or unreasonable. 

The record reflects that two prior layoffs occurred at the 

mine i~ 1982 and 1986 prior to the layoff which resulted in the 

complainant 8 s terminationu and there is no suggestion that those 

layoffs were other than legitimateo With regard to the layoff 

which resulted in the complainant's termination, Mr. Donnelly and 

Mro McKinney presented credible and unrebutted testimony 

concerning the facts and circumstances which prompted the ~eduction of the work force which affected a substantial number 

of salaried personnel in addition to the complainant, and they 

explained how the reductions were accomplished and the pertinent 

factors and considerations which were made in deciding who would 

be retained and who would be laid offe The fact that little or 

nothing was reduced to writing is irrelevant, particularly when 

salaried management personnel are involved. As the responsible 

management officials, Mr. Donnelly and Mr. McKinney were free to 

make certain managerial judgments and decisions regarding 

salaried personnel, including who would be retained and who would 

be laid off, and I conclude and find that these were matters 

within their managerial authority and discretion. Further, after 

careful consideration of all of the evidence and testimony 

regarding the reduction in, force and layoff in question, I 

825 
conclude and find that their explanations of the events in 

question are reasonable and plausible. 

I find nothing unusual about Mr. McKinney's expressions of 

surprise and shock at learning of the complainant's Part 90 

status. Mr. McKinney's explanation that he had always been under 

the impression that this was a status accorded only union 

employees is believable. With regard to Mr. Donnelly's statement 

that the complainant's Part 90 status "would not enhance his 

record with the company", while it could possibly support an 

inference that Mr. Donnelly was influenced by the complainant's 

status during the layoff discussions, when considered in the 

context of the drastic layoffs affecting a relatively large 

number of people, including approximately 25 salaried supervisory 

personnel, and the elimination of the majority of the remaining 

special projects foreman jobs, I cannot conclude that the 

statement, standing alone, establishes that Mr. Donnelly was 

influenced by the complainant's Part 90 status, or that he was 

predisposed not to retain him because of that status. I find 

nothing in the statements made by Mr. Donnelly and Mr. McKinney 

to suggest any retaliatory or ulterior motive on their part 

simply because the complainant sought and received Part 90 

status. Nor do I find any persuasive evidence to show that the 

legitimate cause for the complainant's layoff was a pretext for 

an unlawful motive on the part of the respondent. 

Conclusion 

I find no persuasive evidence, direct or circumstantial, 

from which to draw a reasonably supportable inference of 

discriminatory intent or motivation on the part of mine 

management with respect to the layoff because of the 

complainantis Part 90 miner status& I find no credible 

evidentiary foundation for inferring or concluding that 

management's decision not to select or include the complainant 

among those salaried supervisory personnel who were retained 

during the reduction in force was in any way related to his 

Part 90 Miner statuso 

ORDER 

On the basis of the foregoing findings and conclusions, I 

conclude and find that the complainant has failed to establish a 

prima facie case of discrimination. EVen if the complainant had 

established such a case, I would still conclude and find that it 

was rebutted by the respondent's credible evidence establishing 

reasonably plausible economic and management non-discriminatory 

reasons for the reduction in force and layoffs in question. 

826 
Under the circumstances, the complainant's discrimination 

complaint and claims for relief ARE DENIED AND DISMISSED. 

~-~~ Administrative Law Judge 

Distribution: 

Ralph E. Coleman, Esq., Coleman & Friday, 2175 11th Court South, 

Birmingham, AL 35205 {Certified Mail) 

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O. 

Box 133, Brookwood, AL 35444- (Certified Mail) 

Mark Strength, Esq., David M. Smith, Esq., MAYNARD, COOPER, 

FRIERSON & GALE, P.C., 1901 Sixth Avenue North, 2400 AmSouthHarbert Plaza, Birmingham, AL 35203-2602 (Certified Mail) 

/ml 

827 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 2CX}{)6 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONCRETE MATERIALS, 

Respondent 

MAY 6 1993 

: 

. . 

: 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 92-358-M 

A. C. No. 39-00226-05506 

Summit Pit 

ORDER ACCEPTING RESPONSE 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

Before: Judge Merlin 

This case is before me upon a petition for assessment of a 

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

Health Act of 1977. On December 17, 1992, the Solicitor filed a 

motion to approve settlement of the one violation involved in 

this case~ The Solicitor sought approval of a reduction in the 

penalty amount from the original proposal of $690 to $50. On 

February l8q 1993q an order was issued disapproving the settlement and directing the Solicitor to file additional information 

to support her motion. On March 1, 1993, the Solicitor filed a 

second motion to approve settlement. 

Citation No. 3909835 was issued for a violation of 30 C.F.R. 

§ 56el2067 because the fence surrounding an electrical substation 

was not six feet in height. According to the citation, the substation contained six mounted transformers with exposed enerqized 

componentso The inspector concluded that contact with the energized high voltage components might result in a fatality. In her 

original motion the Solicitor alleged that negligence was less 

than originally assessed and that because the violation was 

unlikely rather than likely to contribute to an accident the 

significant and substantial designation should be deleted. 

The Solicitor advises in her second settlement motion that 

the fence is only two to three inches short of the required six 

feet but does have some rips and tears. The Solicitor also avers 

that photographs submitted by the operator show that it was 

unlikely that a person would be able to reach any of the enerqized components over the fence. Therefore, although the fence 

828 
components unless a deliberate attempt was made to climb the 

fence. 

I accept the Solicitor's representations and I conclude thai 

the settlement is appropriate under the six criteria set forth in 

section llO(i) of the Act. 

In light of the foregoing, it is ORDERED that the settlement 

motion filed March 1 is ACCEPTED as a response to the February 18 

order. 

It is further ORDERED that the recommended settlement be 

APPROVED and the operator PAY $50 within 30 days of the date of 

this decision. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

co 80294 (Certified Mail} 

Mro Jerome To Nusbaum, Concrete MaterialsH P.O. Box 84140, Sioux 

Fallsa SD 57118 (Certified Mail) 

fgl 

829 
FEDERAL JIINE SAFETY AND HRAI.Tft REVIEW COJIMISSIOH 

OFFICE OF ADMINISTRATIVE LAY JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 6 1993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PRABHU DESHETTY, employed by 

ISLAND CREEK COAL COMPANY, 

Respondent 

. 

0 

: 

. . 

Docket No. KENT 92-549 

A.C. No. 15-02706-03753-A 

: Hamilton No. 2 Mine 0 

0 

. 

0 

DECISION 

Appearances: Gretchen M. Lucken, Esq., Office of the 

Solicitor, u.s. Department of Labor, 

Arlington, Virginia, for Petitioner; 

Before: 

Timothy M. Biddle, Esq. and J. Michael Klise, 

Esq., Crowell and Moring, for Respondent. 

Judge Melick 

This case is before me upon the petition for civil 

penalties filed by the Secretary of Labor pursuant to 

Section 110(c) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 801, et seq., the "Act," charging 

Prabhu Deshetty as an agent of a corporate mine operator, i.eo Island Creek Coal Company (Island Creek) 8 with knowingly 

authorizing, ordering, or carrying out a violation by that 

mine operator of the mandatory standard at 30 CoFoR. 

§ 75o400 as alleged in Order No. 3549013. 1 

Section llO(c) provides as follows~ 

"Whenever a corporate operator violates a mandatory 

health or safety standard or knowingly violates or fails 

or refuses to comply with any order issued under this Act 

or any order incorporated in a final decision issued under 

this Act, except an order incorporated in a decision issued 

under subsection 105(c), any director, officer, or agent of 

such corporation, who knowingly authorized, ordered, or 

carried out such violation, failure, or refusal shall be 

subject to the same civil penalties, fines, and imprisonment 

that may be imposed upon a person under subsections (a) and (b)." 

830 
Order No. 3549013, issued at 9:30 a.m. on January 15, 

1991, alleges as follows: 

Loose fine coal, coal dust and float coal dust 

was permitted to accumulate in dangrous [sicJ 

amounts under and along the #1 Unit MMU 003 panel 

belt conveyor for a distance of approximately 

eight hundred feet. The fine coal and coal 

dust ranged in depth from four inches to 

thirty six inches very black in color and dry,. 

three damaged or frozen belt rollers was [sic] 

flaged [sic] along the belt conveyor. The 

belt examiners record book has the conditions 

recorded from 1-7-91 to 1-14-91 no corrective 

actions where [sic] shown in record book. Rockdust layers in the 3611 coal dust where examined 

showed it had been rockdusted over top of coal 

dust at least two times. 

The cited standard, 30 C.F.R. § 75.400, provides that 

"(c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials 

shall be cleaned up and not be permitted to accumulate in 

active workings, or on electric equipment therein." 

Prabhu Deshetty, as mine manager of the Island Creek 

Hamilton No. 2 Mine, does not dispute that he.was an agent 

of the cited corporate mine operator, but denies that there 

was a violation as charged and maintains that even assuming 

there was a violation, he did not knowingly authorize, order, 

or carry out such a violation. 

I findu however 0 from the credible testimony of 

experienced Mine Safety and Health Administration (MSHA) 

Inspector Harold Gamblin alone, that the violation has been 

proven as charged. I further find that Inspector Gamblin's 

testimony is corroborated in significant respects by the 

testimony of Respondent's witnesses. Indeed, Deshetty himself acknowledged that when he proceeded underground on 

January 15 6 1991, shortly after the order at bar was issued 

and presumably during the abatement cleanup, he observed 

a pile of coal dust some eight inches to twelve inches in 

height as it was being cleaned behind the head drive. 

Deshetty also acknowledged that he thereafter walked the 

length of the beltline and observed other areas with coal 

spillage up to ten inches deep. He further acknowledged that 

it took 16 miners nearly two hours to clean the cited area. 

While admitting the existence of these loose coal 

and coal dust deposits in the cited areas, including those 

depicted in the photograph in evidence as Exhibit R-3, 

831 
Deshetty maintained only that these did not constitute a . hazard. While not denying the existence of the cited 36-inch 

pile of coal dust Deshetty denied at hearing that even this 

was an illegal accumulation based on his stated belief that 

only coal dust which is touching a frictional area would be 

illegal. 

stan Bealmear, a shift foreman who was training for 

the Island Creek safety department at the time the order 

was issued, accompanied Inspector Gamblin on the No. 1 Unit 

and acknowledged that this pile of coal dust at the takeup of 

the drive of the No. 1 belt was measured by Gamblin at about 

twelve inches by thirty-six inches& He further acknowledged 

that this thirty-six inch deposit would probably have taken a 

couple of shifts to have developed. This corroborates Gamblin's 

discovery of several layers of rock dust in this coal deposit 

and his conclusion that this deposit had therefore developed 

over an extended period of time. While Bealmear also stated 

that he did not see any rollers operating in coal dust, he 

acknowledged that as a result of the withdrawal order issued 

in this case they replaced three defective rollers. 

Shuttle car driver James Hill, testifying on behalf of 

the Respondent 8 also acknowledged the existence of a pile of 

coal behind the header which he estimated to have been about 

three feet high by three feet long. Island Creek Belt 

Inspectors Henry Grisham and Garry Hatfield both testified 

that even the coal dust piles along the cited belt line and 

appearing in Respondent's photographs (Exhibit R-1 through R-9) 

constituted accumulations that should have been cleaned up. 

These photographs were taken by Island Creek after the order 

had been issued and the cleanup had commencedo The photographs 

admittedly did not even depict the worst deposits present along 

t:.he lineo 

Within this framework of evidence it is clear that 

significant loose coal and coal dust accumulations existed 

along the Noo 1 beltline in violation of the standard at 

30 CoFoRo § 75o400o In reaching this conclusion I have not 

disregarded the testimony of Respondent 8 s witnesses that 

much of the accumulated material was wet and, in particularu 

the thirty-six inch accumulation was wet from water sprays 

at that locationo Even assuming, arguendo, that this was 

true, the Commission has observed in Black Diamond Coal Co., 

1 FMSHRC 1117 {1985) that such coal dust accumulations nevertheless present a serious hazard and are in violation of the 

cited standard in light of the fact that accumulations may be 

quickly dried. 

832 
The rema1n1ng issue to be decided is whether Mr. Deshetty 

"knowingly authorized, ordered or carried out" any of the 

violative conditions. The Commission defined the term "knowingly," as used in the statutory predecessor to Section ll.O(c), 

in Kenny Richardson v. Secretary of Labor, 3 FMSHRC 8 (1981), 

aff'd 669 F.2d 632 (6th Cir. 1982), cert denied, 461 u.s. 928 

(1983) as follows: 

'Knowingly,' as used in the Act, does not have 

any meaning of bad faith or evil purpose or 

criminal intent. Its meaning is rather that 

used in contract law, where it means knowing 

or having reason to know. A person has reason 

to know when he has such information as would 

lead a person exercising reasonable care to 

acquire knowledge of the fact in question or 

to infer its existence •••• We believe this 

interpretation is consistent with both the statutory 

language and the remedial-intent of the Coal Act. 

If a person in a position to protect employee 

safety and health fails to act on the basis of 

information that gives him knowledge or reason 

to know of the existence of a violative condition, 

he has acted knowingly and in a manner contrary to 

the remedial nature of the statute. 3 FMSHRC 16. 

In this case there is no dispute that Deshetty, as mine 

manager of the Hamilton No. 2 Mine during the latter part 

of 1990 through the date of the violation here at issue, 

was in a position of responsibility for the safety of the 

mine 0 including the maintenance of the No. 1 beltline free of 

illegal accumulations of coal dustu float coal dust and other 

combustible materialso Furthermoreu Deshetty was placed on 

specific notice of problems regarding combustible accumulations. at this mine by a particularly large number of recent 

violations of the mandatory standard at issue herein (See 

Government Exhibit Noo l)o 

Indeedu evidence shows that in the year preceding 

the instant order 0 there were 45 violations of this standard 

the mine. It is therefore clearu and should have been 

clear to Deshetty as mine manageru that long before, and at 

the time the order herein was issued, the Hamilton No. 2 Mine 

had a serious problem with repeated violations for the accumulation of combustible materials. Deshetty admitted that he knew 

of these prior violations and had personally reviewed all of 

the corresponding citations with the MSHA inspectors. Inspector 

Gamblin confirmed that he had previously discussed such citations 

with, and had recently warned Deshetty that his mine had been 

issued too many violations for the accumulatioQ of combustible 

materials. 

833 
More particularly, Deshetty had reason to know of the 

existence of coal dust accumulations along the cited beltline before the instant order was issued at 9:30 a.m. on 

January 15, 1991, by the recent preceding reports of his 

belt examiners citing the need to clean the No. 1 Unit 

beltline (See Government Exhibit No. 3). Significantly, 

there were insufficient corresponding entries in the reports 

from which it could be determined that these conditions 

had been corrected. Deshetty admittedly countersigned these 

reports while conceding that he did not know whether the 

conditions had been corrected and acknowledged there was no 

way to ascertain from the belt examiner's reports whether 

any cleaning or other corrective action had been taken. 2 

More particularly, however, in determining whether 

Deshetty knowingly committed the cited violation, I need 

focus on only one of the specific accumulations charged, 

i.e. a 36-inch accumulation of fine coal and coal dust outby 

the takeup at the belt drive.. In$pector Gamblin observed 

that this accumulation contained at least two layers of rock 

dust. Based on this undisputed evidence Gamblin concluded 

that this accumulation had existed for two or three weeks. 

Foreman Stanley Bealmear also concluded from this evidence 

that this accumulation had existed for an extended period of 

time at least two or three shifts. 

In concluding that Deshetty, at 9:30a.m., on May 15, 

1991, had reason to know of this long standing accumulation 

one need only to refer to the repeated entries in preceding 

belt examination reports expressing the need for cleaning 

along the No. 1 Unit belt and stating that the belt was "dirty." 

It is inconsequential for purposes of establishing notice that 

these entries may not have specifically identified this same 

36-inch deposito It is reasonable to infer from these repeated 

entries, without corresponding notations of corrective action, 

that Deshetty, who countersigned the reports, had reason to 

know of this accumulation which had, according to the credible 

evidence, existed for up to three weeks before it was cited by 

Inspector Gamblino 

Under the circumstances I find that the Secretary has 

sustained her burden of proving that Deshetty had reason to 

know of the violation charged in Order No. 3540913. Inspector 

Gamblin's ability to observe and his motivation are unchallenged. 

I therefore accord great weight to his testimo~y that several 

belt rollers were actually in contact with some of the coal 

2 The belt examiner's reports do reflect some 

corrective action taken in response to some reported 

hazardous conditions, but these entries are not relevant 

to the accumulation at issue. 

834 
dust accumulations. Under the circumstances the violation 

was of high gravity. Based on my findings herein that 

Deshetty had reason to know of the violative condition I also 

find that he was highly negligent. There is no evidence that 

Deshetty has any prior violations under the Act. Under the 

circumstances I find that the Secretary's proposed penalty 

of $1,500 is appropriate. 

ORDER 

Prabhu Deshetty is directed to pay a 

$1,500 within 30 days of the date of 

Distribution: 

I 

I ~cyM 

I ' • Adm1n1 

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

u.s. Department of Labor, 4015 Wilson Blvd., Suite 400, 

Arlington, VA 22203 (Certified Mail) 

Timothy M. Biddle, Esq. and J. Michael Klise, Esq., 

Crowell and and Moring, 1001 Pennsylvania Avenue, N.W., 

Washingtonu DoCo 20004-2595 (Certified Mail) 

/lh 

835 
PBDBRAL KIBE SAFETY MID BBALTH REVI:BW COl!DUSS:IOH 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 6 1993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , On Behalf of 

DONALD BOWLING, 

Complainant 

and 

DONALD BOWLING, 

Intervenor 

v. 

PERRY TRANSPORT, INC., 

A Corporation; STEVIE CALDWELL, 

TRUCKING, INC., a Corporation: 

and STEVIE CALDWELL, 

an Individual, 

Respondents 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA)u 

On Behalf of 

DONALD R.. BOWLING u 

Complainant 

PERRY TRANSPORT 11 INC. (/ 

DEWEY CRIGSBY, an Individual; 

STEVIE CALDWELL TRUCKING, INC. , 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

: 

: 

. . 

. . 

. . 

. . 

. . 

0 

0 

0 

0 

0 

0 

0 

.. 

. . 

.. 

0 

0 

0 

0 

0 

0 

0 

0 

¢ 

a Corporation; STEVIE CALDWELL, :; 

an Individual; and LOST MOUNTAIN : 

MINING COMPANY, a division of 

MCI MINING CORPORATION, 

Respondents 

0 

.. 

. . 

DISCRIMINATION PROCEEDINGS 

Docket No. KENT 92-1052-D 

Mine ID 15-13937 and 

15-13937 AFW 

MSHA No. BARB CD 92-28 

Docket No. KENT 93-287-D 

BARB CD-92-28 

Surface Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Fauver 

On September 10, 1992, the Secretary filed an action (Docket 

No. KENT 92-1052-D) on behalf of Donald R. Bowling alleging that 

836 
Respondents violated § 105(c) of the Federal Mine Safety and 

Health Act of 1977 and requesting that Mr. Bowling be temporarily 

reinstated to his former position pending a proceeding on his 

claim of discrimination. 

On January 27, 1993, the Secretary filed an action (Docket 

No. KENT 93-287-D) on behalf of Donald R. Bowling alleging that 

Respondents violated § 105(c) of the Federal Mine Safety and 

Health Act of 1977 and requesting, an inter alia, that Mr. 

Bowling be permanently reinstated to his former position. 

The parties have moved for approval of a settlement designed 

to resolve all matters related to Mr. Bowling's claims in both of 

the above actions. 

I have reviewed the documentation and representations 

submitted and find that the settlement is consistent with the 

purposes of § 105(c) of the Act. 

Accordingly, the motion,for approval of settlement is 

GRANTED, and these proceedings are DISMISSED. 

tJ~~tt/~ William Fauver 

Administrative Law Judge 

Distribution: 

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

of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203 

(Certified Mail) 

Sara Walter Combs 0 Esqe 0 Po Oe Box 828, Stanton, KY 40380 

(Certified Mail) 

Stanley R. Geary, Esq., R. Henry Moore, Esq., Buchanan Ingersoll, 

600 Grant Street, 58th Floore Pittsburgh~ PA 15219-2887 ~Certified Mail) 

C~ A. Noble, III, Esq., 3231 Combs Ferry Road, Lexington, KY 

40509-9519 (Certified Mail) 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, 630 Maxwelton Court, Lexington, KY 40508 (Certified 

Mail) 

Robert I. CUsick, Esq., Wyatt, Tarrant & Combs, Citizens Plaza, 

Louisville, KY 40202 (Certified Mail) 

/fcca 

837 
FEDERAL MXNE SAFETY AND HEALTH REVXEW COMMXSSXON 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

MAY 7 1993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . 

. . Docket No. CENT 92-266-M 

A.C. No. 29-00708-05546 

v. 

. . 

. . 

: Chino Mine 

PHELPS DODGE CHINO INC., 

Respondent 

0 

. 

DECISXON 

Be~ ore: Ju4qe Lasher 

After prehearing preparation and discovery, on March 5, 

1993, Petitioner moved to vacate the Citation in this matter, No. 

3556068, on the basis of insufficient evidence. 1 

on April 2, 1993, Respondent filed its "Motion of Phelps 

Dodge Chino Inc. To Dismiss With Prejudice Or In The Alternative 

For Declaratory Relief." 

On April 14 0 1993 0 Petitioner filed a letter stating: 

We have received Respondent's Motion ••• to Dismiss 

With Prejudice, etc. We have no objection to your dismissing the citation with prejudice aa you did in 

Bomestake Mining Co. , 13 FMSBRC 988. Such action 

would moot Respondent's request for any declaratory 

relief, which is requested •in the alternative• if you do not vacate the citation with prejudice. 

Respondent responded by letter, saying: 

We wish to note an important consideration in response 

to the government's current statement that it baa no 

objection to dismissal with prejudice: such dismissal 

must be in accordance with Rule 41, Federal Rules of 

Civil Procedure. That is, dismissal will operate as 

1 It is noted at the outset that at the time the motion to vacate was 

filed, while Respondent had submitted a motion for summary judgment, such had not 

been ruled on or determined, the factual prerequisites of this case had not been 

established, no trial had been conducted and a record developed, nor had findings of fact been scrutinized and determined. 

838 
an adjudication on the merits. Such a result is 

consistent with the ultimate resolution in Homestake 

Mining company v. Secretary of Labor, et al., United 

States Court of Appeals for the District of Columbia 

Circuit, Docket No. 91-1423. In Homestake, the case 

was dismissed with prejudice and the Secretary was 

"not to issue a new citation for violation of the same 

regulation" under analogous facts. 

As counsel for Petitioner urges, in Homestake Mining Co., 13 

FMSHRC 988 (June 21, 1991), I set forth my understanding what 

dismissal with prejudice meant. In sum, 

1. abandonment of the instant prosecution by the 

Petitioner; 

2. prohibition against seeking future action on the 

citation being vacated. 

Dismissal with prejudice does not mean enJo1ning the enforcement agency, MSHA, from future use of the safety standard 

involved, or applying the standard to "the same mine area described in the subject Citation." As I noted therein, expanding 

the concept of dismissal with prejudice to these latter concepts 

would in effect be {a) granting the Contestant's declaratory relief request without benefit of due process, hearing, and normal 

adjudication processes. 

Respondent urges that the dismissal with prejudice of the 

citation involved in this proceeding "operate as an adjudication 

on the merits" and alleges that such is "consistent with the 

ultimate resolution in Homestake Mining Company v. Secretary of 

Labor. et al., U.S. Court of Appeals for the D.C. Circuit, Docket 

Noo 91-1423. If adjudication on the merits is intended to mean 

that Respondent's view of the law, arguments, and positions as to 

factual happeningsu are adopted, such is rejected. The ultimate 

resolution in the cited Homestake decision of the D.C. circuit 

grew out of this question: What should be the Secretary's ability to issue a new citation for violation of the same regulation 

on the identical facts? When the Secretary indicated that she 

would not issue a new citation for violation of the same regulation on the identical facts on which she issued the citation 

which she was vacating, the court held.~at such response rendered the case "moot and not suitable f9r declaratory relief." 

The court considered that "any future enforcement action must be 

based on a different set of facts." 

I do not find the decision of the Court of Appeals inconsistent with the holdings of my decision in Homestake, which was not 

reviewed by the Commission. The Order set forth below is intended to effectuate the principles set forth herein. 

839 
ORDER 

1. Petitioner's action to vacate Citation No. 3556068 is 

GRANTED. 

2. Citation No. 3556068 is VACATED WITH PREJUDICE. 

3. Respondent's Motion in the alternative for Declaratory 

Relief is DENIED. 

4. Petitioner shall not initiate any future enforcement 

action under the same regulation against Respondent on the identical facts; any future enforcement action must be based on a 

different set of facts. 

Distribution~ 

~~~-e? /Z' ~-&-?z ft 

Michael A. Lasher, Jr. 

Administrative Law Judge 

Daniel TQ curran, Office of the Solicitor, u.s. Department of 

Labor, 525 Griffin Street, suite 501, Dallas, TX 75202 

(Certified Mail) 

G. Lindsay Simmons, Esq., JACKSON & KELLY, 1701 Pennsylvania 

Avenue, N.W., Suite 650, Washington, DC 20006 (Certified Mail) 

ek 

840 
FEDERAl MINE SAFETY AND HEAlTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATNE lAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NAY 7 1993 

SECRETARY OF LABOR . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: 

Docket No. SE 92-27-M 

A.C. No. 09-00113-05503 EYU 

v. Burns Brick Mine 

YARBROUGH CONSTRUCTION 

COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Michael K. Hagan, Esq., Office of the Solicitor; 

U.S. Department of Labor, Atlanta, Georgia, 

for Petitioner; 

Charles N. Yarbrough, Yarbrough Construction, 

Incorporated, Lizella, Georgia, 

for Respondent. 

Judge Barbour 

'l'BE PROCEEDING 

This case before me upon the petition of the Secretary of 

Labor ~~'Secretary•e) for the assessment of civil penalties 

pursuant to sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977 ("Act" or "Mine Act")~ The petition alleges 

that Yarbrough construction Company ("the Company") was 

responsible for three violations of various mandatory safety 

standards for surface metal and non-metal mines found in Part 56 0 

Volume 30 0 Code of Federal Regulations. The Company answered, in 

some instances denying its responsibility for the violations and 

pointing to factors it believed warranted mitigation of the 

penalties proposed by the Secretary. 

A hearing on the merits was held in Macon, Georgia at which 

Michael K. Hagan represented the Secretary and Charles N. 

Yarbrough represented the Company~ The sole witness for the 

Secretary was Federal Mine Safety and Health Administration 

("MSHA") Inspector Donald Collier. The Company relied upon cross 

examination of Collier and upon statements by Yarbrough. 

841 
At the commencement of the hearing Yarbrough raised an 

additional objection to the imposition of civil penalties by 

challenging MSHA's authority to cite the Company for violations 

of the Mine Act. Yarbrough asserted that the activities of the 

Company were not conducted at a "coal or other mine" in that the 

Company simply moved material that had already been mined by 

another company. Tr. 3-4. 

At the hearing's close, the parties elected not to brief the 

issues, standing upon the closing statements of counsel and 

Yarbrough. 

JURISDICTION 

THE FACTS 

Yarbrough described the Company as "a home-owned business," 

taking in an average of approximately $5,000 to $6,000 per month. 

Tr. 81-82. The Company engages in two kinds of work: moving clay 

and site preparation for things such as commercial sites, parking 

lots and roads. Tr. 82. During the past two years the biggest 

part of the business has been that involving clay. Tr. 82. 

According to Yarbrough, the clay is extracted from a 

riverside site. Tr. 39. Once clay has been extracted from the 

earth, it is transported by truck to a stockpile. The stockpile 

is approximately seven tenths of a mile from the place where the 

clay is extracted. Tr. 39. The area containing the stockpile is 

surrounded by a levy. Yarbrough explained that the clay is 

enclosed by the levy so that "when [the nearby river] floods • • Q the water doesn't come into the levy and saturate the 

materialo 06 Tro 27 o The levy is large -- approximately 26 feet 

high and 15 feet across at the top. Yarbrough guessed that the 

levy encompasses approximately 25 - 50 acres. Trq 39. 

Once the clay has been stockpiled, a company employee 

operating a scraper transports the clay from the stockpile to a 

hopper.. Tro 28.. The employee drives the scraper to the top of 

the hopperu opens the bottom of the scraper and the clay falls 

into the hopper. The distance the clay is transported by the 

scraper varies with the position of the stockpile. At a minimum 

it is 600 feet and at a maximum 3 6 000 feet. ~ 

occasionally, in order to dry out the clay, the scraper 

operator is also required to use a farm harrow and to pull the 

harrow with a tractor over the stockpiled clay to loosen the 

clay. Tr. 62, 68. Unless this is done the clay will stick in 

the hopper. Tr. 68. 

The clay is used for the manufacture of bricks by Burns 

Brick, a brick making company. Yarbrough described what happens 

after the clay reaches the hopper: 

842 
Burns Brick people are working 

underneath the hopper, and when the 

material falls in the hopper they 

have a tram system that's similar 

to a ski lift with buckets instead 

of seats, and the tram system 

brings the buckets underneath the 

hopper and the material goes into 

the hopper (and into the buckets] 

and is carried three and a half 

miles up the cable to the plant. 

Tr. 28. At the end of the tram the clay is dumped into another 

stockpile from whence it is removed by Burns Brick for 

manufacture. Tr. 69. 

Once the scraper operator has dumped the clay into the 

hopper the operator drives theempty scraper back to the 

stockpile via a circular route. Tr. 28, 31. (Yarbrough 

described the Company's transportation of the clay "a continuous 

circle, not a back-and-forth operation." Tr. 31.) The Company 

usually keeps one scraper only at the job site because the work 

done there is "a one-man operation." Tr. 30. The Company has 

transported clay for Burns Brick for ttprobably 10 maybe 15 

years." Tr. 33. During 1991 it moved approximately 80,000 to 

90,000 tons of clay to the hopper. Tr. 83-84. 

Yarbrough stated that Burns Brick owns the clay. In August 

1991 (the date of the subject violations), the clay was extracted 

by Tom Sealy9 a person not connected with the Company. Once the 

clay was taken from the groundu Sealy had it trucked to the 

stockpile. Tr. Jl. However 0 commencing in September 1991 and 

continuing until November of that same year, the Company, under 

an agreement with Burns Brick, extracted the clay and moved it by 

truck to the stockpilee Tr. 32, 41. Yarbrough did not dispute 

that durin? September and November 1991 the Company had engaged 

in mining~ Yarbrough testified that when the Company is 

excavating clay it employs more than one persono Tr. 32, 35. 

However 9 Yarbrough adamantly contended that when the Company was 

cited for the subject violations it was "only moving clay that 

someone else had mined and put in a stockpile, and [the Company] 

was moving it from the stockpile to the hopper." Tr. 33. 

According to Yarbrough, this was not mining. In addition, 

Yarbrough explained that when the Company was cited for the 

subject violations it was only billing Burns Brick for moving 

clay from the stockpile to the hopper. However, when the Company 

was conducting mining operations, it had billed Burns Brick for 

mining the clay and for moving it from the mine (i.e., the 

Yarbrough testified that he hoped the company again would reach an 

understanding with Burns Brick to extract clay in the future. Tr. 37. 

843 
extraction site) to the stockpile. Tr. 47. At the time when the 

Company changed its activity from extracting the clay and 

trucking it to the stockpile, to moving the clay from the 

stockpile to the hopper only, it did not notify MSHA. 

Nonetheless, Yarbrough maintained that an MSHA inspector could 

tell whether or not the Company was mining (i.e., extracting the 

clay and trucking it to the stockpile) or whether it was not 

mining (i.e., taking clay from the stockpile to the hopper) 

simply by observing. Tr. 48. Or, the inspector could ask. 

Tr. 49. Yarbrough also stated that inspectors from the 

Secretary's Occupational Health and Safety Administration 

("OSHA") did not inspect the stockpile 9rea. Tr. 95-96. 

Yarbrough was uncertain regarding ownership of the property 

on which the Company was working. He did not know whether Burns 

Brick owned it or leased it. Tr. 30. He also indicated that 

another brick company, Cherokee, obtained its clay from a 

adjacent property and that it was difficult to tell where Burns 

Brick's clay ended and Cherokee's began. Tr.44. Yarbrough also 

questioned whether "brick clay" was a mineral within the meaning 

of the act. Tr. 34. 

PARTIES' ARGUMENTS 

Counsel for the Secretary asked that judicial notice be 

taken of the fact that clay is a mineral extracted from the land. 

Tr. 85-86. Counsel then asserted that the "mine" in this 

instance includes the area where the clay was extracted and the 

area where it was stockpiled and trucked to the hopper. These 

areas are basically contiguous. Tr. 87. Further, counsel 

pointed to the MSHA-OSHA Interagency Agreement, 44 FR 22827 ~April 17 0 1979), 48 FR 7521 (February 22, 1983) ("Agreement"), 

and noted that it specifically provides that at brick plants OSHA 

authority "commences after arrival of the raw materials at the 

plant stockpile." EXh. P-5 at 4, Tr. 88. Counsel argued that the 

"plant stockpile" was the stockpile at the brick plant, three and 

one half miles away from the hopper, i.e, the stockpile at the 

other end of the tramway. Tr. 88-89. 

Counsel cited the "most troubling aspect" of the case as 

being the fact that if the company's argument were accepted, when 

the Company was in a "non-mining" phase of operation, that is 

when it was only removing clay from the stockpile and taking it 

to the hopper, company workers would be in a regulatory 

Never-Never Land, protected by neither MSHA nor OSHA. Tr. 89. 

In sum, counsel argued that under the circumstances of this 

case the Company was an independent contractor performing 

services at a mine and thus was properly subject to the 

jurisdiction of the Act and to resulting inspection by MSHA. 

8~4 
Yarbrough, argued that while the area from which the clay 

was extracted was clearly a mine, the mine was divided by the 

levy from the area where the stockpile was located and the 

stockpile side of the levy was not a mine. Tr. 91-92. Thus, 

MSHA was without jurisdiction to inspect the Company's operations 

inside the levy. Nonetheless, the Company's workers are fully 

protected. The Company was insured and the insurance company 

sent inspectors to inspect company equipment. Indeed, according 

to Yarbrough, the insurance inspectors came twice as often as the 

MSHA inspectors. Tr. 92. 

JURISDICTIONAL FINDINGS AND CONCLUSIONS 

While, as the u.s. Court of Appeals for the Fourth Circuit 

has noted, the Mine Act does not apply to every company whose 

business brings it into contact with minerals, I have no doubt 

that in this instance the Company comes within the parameters of 

the Act. See Donovan v. Carolina Stalite Co., 734 F.2d 1547 (4th 

cir. 1984). 

Section 4 of the Mine Act states that "(e]ach coal or other 

mine, the products of which enter commerce . . . and each 

operator or such mine . • • shall be subject to the provisions 

of this Act." 30 U.S.C. 803. Section 3(h) (1), 30 u.s.c. 

§ 802(h) (1), defines "coal or other mine" in part as: 

(A)an area of land from which 

minerals are extracted in nonliquid 

form • • • (B) private ways and 

roads appurtenant to such area, and 

(C) lands, excavations, underground 

passageways, shafts, slopes, 

tunnels and workings, structures, 

facilities~ equipment, machines, 

tools and other property • • • used 

in or to be used in, or resulting 

from the work of extracting such 

minerals o c o or used in or to be 

used in the milling of such 

minerals 0 or the work of preparing 

coal or other minerals. 

Section 3(d) 30 u.s.c. § 802(d) defines "operator" as "any 

owner, lessee, or other person who operates, controls, or 

supervises a coal or other mine or any independent contractor 

performing services or construction at such mine." 

In order to determine whether the Company is working at a 

"mine" and if so whether it is an "operator" of that mine the 

first question is whether the material involved is a "mineral?" 

845 
The pertinent material is clay that has been extracted in 

non-liquid form. I note the definition of "clay" and I find that 

the material is a mineral within the meaning of the Act. 2 

The next question is whether the mineral is being 

"extracted," "milled" or "prepared?" If so then the land from 

which it is extracted or the lands, structures, etc., used in or 

to be used in its milling or preparation constitute a mine. 

Here, the Company was moving the clay from the place it was 

stockpiled to the conveyor that transported it to the place it 

was to be used as a raw material for the manufacture of bricks. 

This transportation was not associated with a milling or 

preparation process -- processes which, generally speaking, are 

associated with the treating of mined minerals for market. See 

Carolina Stalite, 734 F2d at 1551. However, the record is not 

totally silent regarding whether or not the clay was subject to 

any such treatment once it had been extracted. Yarbrough stated 

that the Company occasionally.hadto harrow the stockpiled clay 

in order to dry it so it could be trammed to the brick plant. 

Since this aeration of the clay was a treating process incident 

to the shipment of the clay to its ultimate market, it was 

mineral preparation within the meaning of the Act, and I so find. 

In addition, I reject Yarbrough's, proposed distinction 

between the extraction and (apparently) the initial stockpiling 

of the clay and transportation of the clay to the point where the 

mineral was conveyed to the userjmanufacturer. 3 I note, as I 

must, that the legislative history of the Act makes clear that 

Mine Act coverage is to be favored and that "what is considered 

to be a mine and to be regulated • o • be given the broadest 

possibl[e] interpretation." So Rep. No. 181, 95th Cong., 1st 

Sess. 14 (1977)u reprinted in Senate Subcommittee on Labor, 

Committee on Human Resources, 95th Cong., 2nd Sess. 6 Legislative 

History of the Federal Mine Safety and Health Act or 1977, at 602 

~Clayw is defined as: 

A fine-grained, natural, earthy material composed primarily 

of hydrous aluminum silicates. It may be a mixture of clay minerals 

and small amounts of nonclay materials or it may be predominantly one 

clay mineral. The type of clay is determined by the predominant clay 

mineral present. · 

u.s. Department of the Interior, (1968) A Dictionary of Mining, 

Mineral and Related Terms 214. 

3 I state "apparently" because during his testimony Yarbrough seemed 

to imply that both extraction of the clay and its initial stockpiling inside 

the levy constituted mining activity subject to the Act, whereas in his 

closing statement he seemed to take a more restrictive view and to argue that 

only extraction was covered. see Tr. 33, 91-92. 

846 
(1978}. While it is true that when cited for the violations here 

at issue, the Company was primarily engaged in transporting the 

clay that others extracted and stockpiled to the hopper from 

whence it would be conveyed to the brick plant, I conclude that 

the transportation to the hopper was so closely related to the 

extraction process that it indeed was an essential ingredient of 

that process. Without transportation to the hopper extraction 

would have been a meaningless exercise in that the clay would 

never have entered the stream of commerce. I therefore conclude 

that the area of the stockpile and the route to the hopper is 

indeed a "mine" within the meaning of the Act. See·Bulk 

Transportation Services, Inc., 12 FMSHRC 772, 792-793 (April 

1990} (ALJ Koutras), aff'd 13 FMSHRC 1354 (September 1991). 

I am further persuaded that the t;ubject area was a "mine" .by 

the very fact that the Secretary chose to exercise his 

jurisdiction over the area pursu~nt to the Act. The Secretary 

enforces both the Mine Act and the Occupational Safety and Health 

Act of 1970, 29 u.s.c. § 651 "6t.seg. .. , and has discretion in 

determining which of his two enforcement agencies, MSHA or OSHA, 

should exercise jurisdiction over a given facility or activity. 

The Secretary's choice is entitled to deference provided it is 

exercised reasonably. Here, where the alleged violations were 

cited in an area virtually continuous to the extraction site and 

in an area well within that which the Secretary regards as 

falling under the Mine Act -- as counsel for the Secretary noted, 

under the Agreement the Secretary claims Mine Act jurisdiction up 

until the arrival of the clay at the plant stockpile -- I 

conclude that the Secretary's choice of MSHA as the appropriate 

inspection authority was reasonable. 

The question remains whether the Company was an "operator" 

within the meaning of the Act? Yarbrough was uncertain who owned 

the land upon which the Company was working, nor did the 

Secretary introduce evidence regarding ownership of the mine 

site. Also, the record is not entirely clear regarding the 

extent of the Company's control or supervision at the site, 

although there is certainly no suggestion that at the time the 

subject violations were cited any entity other than the Company 

was exercising control or supervision at the site. What is 

apparent is that the Company occasionally aerates the clay and 

transports the clay for Burns Brick and charges Burns Brick on a 

per unit basis .of approximately $9 per loade Tr. 29. Thus, 

regardless of whether the Company was an "operator" by virtue of 

its control and supervision of the area involved, certainly it 

was an independent contractor performing a service at the mine. 

For these reasons, I conclude that the Company was properly 

subject to Mine Act jurisdiction. 

847 
THE VIOLATIONS 

section 104(a) citation No. 3605398, 8/8/91, 30 C.F.R. S 56.14132 

The citation states: 

Exh. P-2. 4 

The warning horn on the Dresser 

412 B pan scraper was not 

operative. 

Inspector Collier stated on August 8, 1991, he observed the 

pan scraper in operation at the mine. He inspected the equipment 

and during the course of the inspection he asked the scraper 

operator, Riley Sanders, to sound the scraper's horn. The 

operator tried to do so, but the horn would not sound. 

Tr. 10-11. Because the scrap.er was a self propelled piece of 

equipment, Collier believed that the lack of an operable horn 

violated section 56.14132. 

With regard to gravity, Collier stated that although at the 

time of the inspection no one aside from the scraper operator was 

in the vicinity of the scraper there were "other employees who 

might work in the area during the course of the shift everyday." 

Tr. 14, see also Tr. 15. However, because the scraper normally 

would not be operated in the vicinity of other employees Collier 

considered it "unlikely" that persons would be injured due to the 

violation. 

With regard to negligence, Collier noted that the scraper 

was required to be inspected at the start of the shift, prior to 

being placed in operationo Tro 13-14u 16c 

Yarbrough did not dispute the fact that the horn did not 

sound. He explained that for some reason -- he did not know 

why -- someone -- he did not know who -- had cut the horn wire. 

Yarbrough acknowledged this had happened before and that the 

Company had been cited for it. Tr. 20. 

4 30 C.F.R. S56.14132(a) states: 

Manually-operated horns or other audible 

warning devices provided on self-propelled mobile equipment as a safety feature shall 

be maintained in functional condition. 

848 
I conclude the violation existed as charged. The scraper is 

"self-propelled mobile equipment," and as Yarbrough acknowledged, 

its horn did not work. Further, I accept the inspector's 

testimony that an injury resulting from the violation was 

unlikely and I find the violation was not serious. Finally, the 

Company was negligent in allowing the violation to exist. The 

fact that the horn did not work should have been detected and 

corrected prior to the start of the shift and the fact that the 

Company previously had experienced a similar problem, further 

emphasizes its lack of due care. 

section 104(&) Citation No.3605399, 8/8/91, 30 c.F.R. 

s 56.14130(i) 

Citation No. 3605399 states: 

Exh. P-3. 5 

The seat belts on the Int. 1566 

Tractor are not maintained in 

functional condition. The buckle 

is defective and will not stay 

latched. The tractor is not being 

used at this time but is subject to 

be used anytime. 

Collier testified that when he inspected the International 

1566 tractor on August a, 1991, the tractor was in the stockpile 

area. Tr. 55. 6 During the course of the inspection Collier 

attempted to buckle the seatbelt but could not get the buckle to 

latch. Collier speculated that mud may have gotten into the 

latching mechanism. Tro 50-Sle At the time of the inspection 

the tractor was not tagged-out or put in an area of restricted 

use so it could not be operated. Tr. 52o Collier stated that 

Riley sanders told him that the tractor had "broken down" but 

Collier denied sanders told him the tractor lacked the batteries 

necessary to make it operable. Tr. 54. Collier stated that 

6 

tractors. 

30 C.F.R. S 14130(i) states: 

Seat belts shall be maintained in 

functional condition, and replaced when 

necessary to ensure proper performance. 

30 C.F.R. S 14130(a) requires that seat belts shall be installed on 

849 
Sanders said "they'd used [the tractor] the day before," and 

Yarbrough observed, "He had not used it the day before, I had." 

Tr. 55. 

Collier stated that he believed the condition of the 

seatbelt constituted a violation of section 56.14130. He 

further stated the violation was a significant and substantial 

contribution to a mine safety hazard in that it was reasonably 

likely if the seatbelt were not fixed a person could be thrown 

from the tractor and be crushed. Tr. 52-53. When asked why he 

thought it reasonably likely this could happen, Collier 

responded: 

Based on a recent policy memorandum. In 

a study of mining accidents with haulage 

equipment [,] of the fatalities that 

occurred over a ten-year period • • . 1979 to 1989, ••• the use of seat 

belts might have prevented half of those 

fatalities and ••• we're to consider 

non-use, not providing seat belts, or 

seat belts not in a functional condition 

• • • to be as serious. 

Tr. 57. When asked whether there was anything with respect to 

the particular site that he considered when determining the 

violation was S&S, Collier replied, "[N]ot at that time." 

Tr. 57. 

With regard to the Company's negligence, Collier was of the 

opinion that the condition of the seatbelt should have been 

detected and corrected because the tractor is required to be 

inspected prior to being placed in use each shift. Tr. 53. 

Yarbrough stated the tractor wasn't in use the day the 

citation was issued, but he agreed with the inspector that it had 

not been tagged-out. Tr. 58. According to Yarbrough, one of the 

tractorijs batteries had fallen off the tractor and had broken6 

and had been that way for two weeks. Further, Yarbrough stated 

he had jump started the tractor the day before the citation was 

issued and had moved it to the spot where the inspector found it. 

Tra 59o 

X find the violation existed as charged. Section 

56.14130(i) requires that seat belts shall be maintained in 

functional condition. There is no question about the condition 

of seatbelt -- it did not latch. Moreover, the presence of a 

non-functioning seatbelt was a hazard to the tractor operator. 

As both Collier and Yarbrough agreed, the tractor was not removed 

from service or marked to prohibit its use. Further, even though 

it lacked a battery, the tractor could be jump started and moved, 

as Yarbrough demonstrated. 

850 
I cannot find this was a serious violation. I accept 

Yarbrough 1 s testimony that the battery was missing and had been 

missing for two weeks prior to the inspection. The apparent 

effect was to render the tractor inoperative for commercial use. 

Thus, it was unlikely anyone would be exposed to the danger of 

the tractor while in operation unless a person had, like 

Yarbrough, jump started it and moved it to an area for repair. 

This being the case, I also cannot find there was a reasonable 

likelihood that the hazard contributed to -- the hazard of the 

tractor operator being thrown from the tractor and crushed -- would result in an event culminating in an injury. 7 The tractor 

simply could not be used enough to make.an accident reasonably 

likely. This being the case, I find the violation was not S&S. 

I also am constrained to observe that the wisdom of the 

inspector basing a S&S finding solely upon a policy or 

informational memorandum and giving no consideration to the 

factual situation at hand is highly questionable, to say the 

least. The commission has made clear that the question of 

whether a violation is S&S must be based upon the particular 

facts surrounding the violation. Texas Gulf. Inc., 10 FMSHRC 

498, 501 (April 1988}. While I suppose it is conceivable that 

the Secretary could prove facts existed warranting an S&S finding 

despite the inspector's failure to take them into account, I 

cannot imagine such proof would be easily established or come by. 

Finally, I find that the condition of the seatbelt exhibits 

a lack of due care on the Company's part. Because the tractor 

had not been taken out of service, the Company was required to 

make certain that it complied with all applicable standards. A 

reasonably prudent operator would have made sure the seatbelt 

workedo 

~04fa~ citation NoG 56 3605400, 8/8/91, Section 56.12025 

The citation states: 

The metal frame of the fuel pump 

motor at the fuel storage area was 

not grounded to the system ground. 

7 In Mathies Coal Co., 6 FMSHRC 1, (January 1984), the Commission 

set forth the four elements of a "significant and substantial" violation, 

including the one critical here, a reasonable likelihood that the hazard 

contributed to will result in an injury." In u.s. Steel Mining Co., 6 FMSHRC 

1834, 1836 (August 1984), the Commission amplified the meaning of the third 

element of the Mathies test, explaining it "requires that the Secretary 

establish a reasonable likelihood that the hazard contributed to will result 

in an event in which there is an injury." 

851 
Exh. P-4. 8 

Collier stated that during his inspection on August 8, he 

observed a metal framed fuel pump located "pretty close to the 

hopper" but to one side of it. Tr. 75. The pump was electric. 

It was used to pump fuel from a fuel storage tank. Collier was 

told the pump and storage tank belonged to Burns Brick, but that 

the Company used the tank to store its fuel and used the fuel for 

its equipment. Tr. 73, 75. 

Collier noticed that the frame of the pump was not grounded. 

However, Collier did not believe that it was likely any person 

would be shocked because of the failure to ground the frame. 

He observed that because the pump structure was located on the 

ground, its electrical components were subjected to very little 

vibration. (Vibration could cause an electrical short-circuit by 

bringing conductors into contact with the frame.} Moreover, 

Collier observed that the pump was not used very often so that 

even if an ungrounded shock hazard occurred, which was unlikely, 

it also was unlikely persons would actually be subjected to the 

hazard before it could be corrected. Tr. 73. 

With regard to the Company's negligence, Collier stated that 

grounds have to be tested once each year and that the missing 

ground wire should have been known to the Company. Tr. 74. 

Yarbrough testified that the Company had begun using the 

pump and tank in its day-to-day operation after the Company paid 

Burns Brick for the fuel already in the tank. Tr. 78-79. Before 

the Company started to use the pump Yarbrough had not inspected 

ito and he did not know whether or not it was grounded. He 

stated u 0

' I never checked." Tr,. 79,. 

X find that the violation existed as charged. The metal 

pump frame enclosed electrical circuits, and the pump was not 

grounded. While the pump itself appears to be have been owned by 

Burns Brick, the Company bad the full use of it and was using it, 

as Yarbrough stated, "in the day-to-day operations of moving the 

material from the stockpile to the hopper." Tr. 79. Thus, the 

pump was part of the equipment necessary for the Company to 

30 C.F.R. S 56.12025 states: 

All metal enclosing or encasing electrical 

circuits shall be grounded or provided 

with equivalent protection. This 

requirement does not apply to battery 

operated equipment. 

852 
perform its duties as an independent contractor, and I imply from 

this that the Company was responsible for the pump and properly 

cited for the violation. 

Collier, an electrical engineer with a degree from Virginia 

Polytechnical University, testified the chance of an injury 

resulting from the violation was unlikely. I accept his 

testimony and find that this was a non-serious violation. 

Moreover, because the company was using the pump and was 

responsible for it, due care required the Company to make sure 

the pump met all applicable safety standards. The company did 

not and in failing to do so I find that the Company was 

negligent. 

OTHER CIVIL PENALTY CRITERIA 

Yarbrough testified and I find that the Company is small in 

size. See Tr. 81-82, 84. TheCompany's history of previous 

violations also is small. In the two years proceeding August 8, 

1991, the Company was assessed for a total of four violation. 

G. Exh. P-1, Tr. 84-85. 

Finally, Yarbrough stated that the size of the penalties 

proposed by the Secretary for the violations here alleged would 

not affect the Company's ability to continue in business and I 

will consider this when I assessed civil penalties for the 

violations that I have found herein. Tr. 81. 

CIVIL PENALTIES 

Taking in to account all of the statutory civil penalty 

criteriaq I conclude that assessment of the following civil 

penalties is appropriate: 

Citation Noo 

3605398 

3605399 

3605400 

pate 

8/8/91 

8/8/91 

8/8/91 

30 C.F.R. 

Section 

56.14132 

56.14130 

56.12025 

ORDER 

civil Penalty Amount 

$20 

$20 

$20 

The Company is ORDERED to pay the civil penalties assessed 

within thirty (30) days of the date of ~his decision. Payment is 

to be made to MSHA and upon receipt or payment this matter is 

dismissed. 

853 
The Secretary is ORDERED to MODIFY Section 104(a) Citation 

No. 3605399 by deleting the "S&S" finding, which is hereby 

VACATED. 

Distribution: 

71 . .· /) f'/.? /) ~ t~· 7--<D~.vt-ff~ 

David F. Barbour 

Administrative Law Judge 

Michael K. Hagan, Esq., Office of the Solicitor, u.s. Department 

of Labor, 1371 Peachtree Street, N.E., Atlanta, GA 30367 

(Certified Mail) 

Charles N. Yarbrough, Yarbrough Construction, Inc., P.O. Box 307, 

Lizella, GA 31052 (Certified Mail) 

fepy 

854 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203LEESBURG PIKE MAY 7 1993 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA}, 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

.. . 

. . 

. . 

.. . 

. 

. 

Docket No. WEVA 92-917 

A.C. No. 46-01455-03887 

Docket No. WEVA 92-918 

A.C. No. 46-01455-03888 

Docket No. WEVA 92-933 

A.C. No. 46-01455-03889 

Docket No. WEVA 92-988 

A.C. No. 46-01455-03891 

Osage No. 3 Mine 

Docket No. WEVA 92-921 

A.C. No. 46-01453-04007 

: Docket No. WEVA 92-932 

A.C. No. 46-01453-04011 

. . 

Docket No. WEVA 92-994 

A.C. No. 46-01453-04016 

Humphrey No. 7 Mine 

DECISION 

Appearances~ Caryl L. Casden, Esq.u Office of the Solicitoru 

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

for Petitioner; 

Before: 

Daniel E. Rogers, Esq., Consol,Incorporated, 

Pittsburgh, Pennsylvania for Respondent. 

Judge Barbour 

STATEMENT OF THE CASE 

In these proceedings the Secretary of Labor ("Secretary"} 

on behalf of the Mine Safety and Health Administration ("MSHA") 

charges the Respondent, Consolidation Coal Company ("Consol"), 

with violating safety regulations promulgated pursuant to the 

Federal Mine Safety and Health of 1977, 30 u.s.c. § 801 et seq., 

(The "Mine Act" of "Act"). In addition, the Secretary alleges 

that certain of the violations constituted significant and 

substantial contributions to mine safety hazards ("S&S" 

violations) and that certain were the result of Consol's 

unwarrantable failure to comply with the cited standards. 

sse: 
A hearing on the merits was conducted in Morgantown, West 

Virginia, and counsels have submitted helpful post-hearing 

briefs. At the commencement of the hearing counsel for the 

Secretary announced that several of the violations had been 

settled. (In some instances the settlements disposed of the 

entire case at hand.) At my request, counsel stated on the 

record the facts pertaining to the settlement agreements and I 

explained that I would consider the settlements and if I found 

them warranted under the Act, I would approve them in my 

decision. 

THE SETTLEMENT AGREEMENTS 

DOCKET NO. WEVA 92-917 

There are two violations alleged in this case, both of which 

the parties have agreed to settle. 

Citation/Order No. 

3307656 

3716059 

Date 

11/28/90 

10/16/91 

30 C.F.R. 

Section 

75.305 

75.503 

Assessment 

$ 276 

$1100 

Counsel for the Secretary explained that Citation 

Settlement 

$ 166 

$ 660 

No. 3707656 was issued for the failure of Consol to properly 

conduct a required weekly examination for hazardous conditions in 

the cited area of the mine. Counsel further explained that 

although the manner in which the company was conducting the 

examination was not correct technically, it was an effective and 

safe way to examine. Therefore, counsel proposed the citation be 

modified to delete the S&S designation and that the penalty be 

assessed as shown aboveo TrQ ?o 

Counsel further explained that Section 104(d)(2) Order 

No. 3716059 was issued for the company's failure to properly 

secure an electrical junction box on a loading machine. Upon 

inquiring into the facts surrounding the violation, counsel 

discovered that although two of four bolts were missing and the 

other two were damagedu the box cables were taut so that the box 

could not readily move. Therefore, in MSHA's opinion, it was 

unlikely that the box would be damaged due to the missing and 

defective bolts. Counsel proposed the order be modified by 

deleting the S&S designation and that a civil penalty assessed be 

as shown. Tr. s. 

856 
DOCKET NO. WEVA 92-118 

There is one violation alleged in this case which the 

parties have agreed to settle. 

Citation No. 

3716332 

Date 

03/25/92 

30 C.F.R. 

Section 

75.1105 

Assessment 

$431 

Settlement 

$ 50 

Counsel stated that subsequent to being issued, the citation 

was modified by MSHA to delete the S&S finding, but that the 

assessment erroneously did not take into account the 

modification. Had the citation been assessed as modified, the 

civil penalty proposed would have been $50 and counsel suggested 

a civil penalty be assessed in that amount. Tr. 9. 

DOCKET NO. WEVA 92-933 

There are four violations .. alleged in this case, two of which 

the parties have agreed to settle. 

30 C.F.R. 

Citation No. Date Section Assessment settlement 

3718138 12/18/91 75.1725(a) $1000 $1000 

3715916 01/08/92 75.400 $ 800 

3715920 01/13/92 75.400 $1200 

3718210 04/20/92 75.601-1 $ 362 $ 362 

Counsel stated that Consol had agreed to pay in full the 

penalties proposed for Order No. 3718138 and Citation 

No. 3718210. Tr. 9-10. 

DOCKET NO. WEVA 92-988 

There are five violations alleged in this case, four of 

which the parties have agreed to settle. 

30 C.F.R. 

CitatignlOrder )lo .. Date Section Assessment Settlement 

3715905 12/30/91 75.807 $241 $145 

3715909 01/06/92 75.1105 $178 . $178 

3718483 01/22/92 75.503 $241 $145 

3718486 01/22/92 75.202(a) $227 

3718488 12/03/92 75.202(a) $178 $178 

Citation No. 3715905 was issued for Consol's failure to 

properly place and guard a high voltage transmission cable. In 

addition to the alleged violation, the inspector found the 

violation to be s&s. counsel stated the cable had numerous 

protective features to interrupt the power in the event the cable 

was damaged and that should such damage occur there would be 

857 
little likelihood of injury to miners. Accordingly, counsel 

proposed the S&S finding be deleted and a civil penalty be 

assessed as shown. Tr. 11-12. 

Citation No. 3718483 was cited for Consol's failure to 

maintain a roof bolting machine in permissible condition. In 

addition, the inspector found the violation to be S&S. The 

impermissible openings constituting the violations were of 

minimal dimensions (one in excess of .006 of an inch and one in 

excess of .007 of an inch). Counsel maintained that any hazard 

resulting from the violation was unlikely to occur, and counsel 

proposed the S&S finding be deleted and a civil penalty be 

assessed as shown. Tr. 12. 

Counsel also stated that Consol had agreed to pay in full 

the civil penalties proposed for citation No. 3715909 and for 

Citation No. 3718488. Tr. 12-3. 

DOCKET'NO. WEVA 92-932 

There are two violations alleged in this docket, both of 

which the parties have agreed to settle. 

Order No. 

3108769 

3108741 

Date 

01/30/92 

02/04/92 

30 C.F.R. 

section 

75.1003(a) 

75.1101-8(c) 

Assessment 

$800 

$800 

settlement 

$400 

$400 

Section 104(d)(2) Order No. 3108769 was issued for Consol's 

failure to adequately guard a trolley wire that ran above the 

supply tracko The inspector further found that the violation was 

S&S and resulted from Consolijs unwarrantable failure to comply 

with the cited standard. Counsel stated that upon investing the 

facts surrounding the violation MSHA had concluded the evidence 

would not support the inspector's unwarrantable failure 

determination. Counsel proposed the unwarrantable finding be deleted~ the order of withdrawal be modified to a Section 104(a) 

citation and a civil penalty be assessed as showno 

Section 104(d)(2) Order No. 3108741 was issued for Consol's failu~e to maintain an adequate discharge rate on a belt drive 

sprinkler system. However, counsel stated that further 

investigation into the facts surrounding the violation revealed 

the system had been inspected 3 hours previously by Consol and 

had been found to be fully functional at that time. Therefore, 

MSHA did not believe the inspector's unwarrantable determination 

could be supported at trial. Counsel therefore proposed the 

order be modified to a section 104(a) citation by deleting the 

finding of unwarrantable failure and that a civil penalty be 

assessed as shown. Tr. 13-14. 

858 
order No. 

3116513 

Date 

06/17/91 

DOCKET NO. WEVA 92-994 

30 C.F.R. 

section 

75.220 

Assessment 

$1200 

settlement 

$1200 

Counsel stated that Consol had agreed to pay in full the 

proposed penalty. Tr. 14-15. 

In addition to the statements of counsel, the record 

contains information relating to the six statutory penalty 

criteria found in Section llO(i) of the Act, 30 u.s.c. § 820(i). 

APPROVAL OF THE SETTLEMENTS 

I have considered all of this information and I find that 

approval of the penalties upon which the parties have agreed is 

warranted and reasonable and in the public interest. I further 

find that counsel for the Secretary has stated adequate grounds 

for the modifications of the citations and orders that the 

parties have made a part of the settlements. 

Accordingly, the settlements are approved. I will order the 

appropriate payments and modifications at the end of this 

decision. 

CONTESTED CASES 

STIPULATIONS 

At the commencement of the hearing regarding the contested 

cases that parties stipulated as follows: 

lo Consol is the owner and operator of mines in which 

the subject citations and orders of withdrawal were issued; 

2. The operations of Consol are subject to the 

jurisdiction of the Mine Act; 

J., The Federal Mine Safety and Health Review 

commission and the Administrative Law Judge have 

jurisdiction over these proceeding pursuant to Section 105 

and 113 of the Mine Act, 30 u.s.c. §§ 815 and 823; 

4. The individuals who issued the contested citations 

and orders were acting in their official capacity as 

authorized representatives of the Secretary when the 

citations and orders were issued; 

5. True copies of each of the citations and orders at 

issue were served on Consol as required by the Act; 

859 
6. The total proposed penalty for the violations 

alleged in the citations and orders contested by Consol will 

not effect Consol's ability to continue in business; 

7. The citations and orders that will be submitted as 

exhibits are authentic copies of the citations and orders 

that are at issue; 

8. The proposed assessment forms that will be 

submitted as exhibits set forth accurately Consol's size, 

production, hours worked per year and the total number of 

assessed violations in the 24 months preceding the date of 

the alleged violations. 

See Tr. 17-18. 

DOCKET NO. WEVA 92-933 

ORDER NO. 3715916, 01/08/92, 30 C.F.R. S 75.400 

MODIFICATION OF THE ORDER 

MSHA Inspector Lynn Workley when issuing this order of 

withdraw found the alleged violation of section 75.400 to be S&S. 

subsequently, the order was the subject of a conference between 

MSHA and Consol. As a result of the conference the order was 

modified to delete the S&S finding. In a letter dated December 

2, 1992, counsel for the Secretary stated to counsel for·consol 

that this modification was an error. Further, she stated that 

she had advised Consol's counsel of this error during a 

December lu 1992 telephone conversation. Finally, she stated 

that she intended to present evidence regarding the alleged S&S 

nature of the violation at the December Bu 1992 hearing. 

Prior to presenting her case, counsel for the Secretary 

moved to amend the order to include an S&S finding. Tr. 18-19. 

consol•s counsel objected, expressing his belief that Consol 

should be able to rely on what was done at the conference. 

Tro 20o Counsel for the Secretary responded that such an 

amendment is permissible, provided the operator is not 

prejudiced. Tr. 21. 

I note that in order to grant the motion I must find not 

only a lack of prejudice, but also that the moving party is not 

guilty of bad faith, See Wyoming Fuels Corp., 14 FMSHRC 1282, 

1289-90 (August 1992). Counsel for Consol candidly stated Consol 

was not prejudiced. Tr. 21. Further, far from exhibiting bad 

faith, counsel for the Secretary seasonably advised Consol's 

counsel of how she intended to proceed. Accordingly, the motion 

is granted and the inspector's S&S finding is restored to order 

No. 3715916. 

860 
THE VIOLATION 

THE EVIDENCE 

The order states: 

Exh. P-2 • 1 

Combustible material had been 

permitted to accumulate on the 2 

left belt, in that a pile of fine 

dry coal dust up to 6 inches deep 

was under the belt at the first low 

bottom roller and there was a layer of dry float coal dust on the 

transfer structure, water line, and 

belt structure, from the transfer 

inby for 30 feet on the 2 left 

belt. The float coal dust was dry, 

black and powdery and varied from 

1/16 to 1/4 inch deep. 

Inspector Workley stated that when he inspected the Osage 

No. 3 Mine on January 13, 1992, he was accompanied by the 

representative of miners and by Consol's safety escort, Norm 

Hill. Tr. I 28. Workley was familiar with the mine in that he 

had inspected it in its entirety on several prior occasions. 

Tr. I 27. The inspection party approached the 2 Left section 

belt transfer, the point at which the 2 Left belt dumps onto the 

main belt, and Workley observed accumulations of coal dust on 

the top of the transfer structure, on the bearing box for the 

transfer roller, and on the water line above the 2 Left section 

belt and the belt structure. The dust was black in color and 

extended a total distance of approximately 30 feet. To gage the 

depth of the dust Workley ran his finger through it and found 

that it ranged for 1/16 to 1/4 inch deep. Tr. I 29. 

Under the bottom belt of the 2 Left section belt Workley 

also observed fine coal and coal dust. The material was in a 

pile and Workley placed his hand in the pile and determined that 

the coal and coal dust was dry. Also, he measured the pile with 

a ruler and found it to be approximately six inches deep and 

three feet square. Tr. I 29-30. 

30 C.F.R. S 75.400 provides: 

Coal dust, including float coal dust 

deposited on rock-dusted surfaces, loose 

coal, and other combustible materials, 

shall be cleaned up and not be permitted 

to accumulate in active workings, or on 

electric equipment therein. 

861 
Workley explained that due to the amount of coal dust 

present he was of the opinion the accumulation had existed for 

several days. Further, he explained that the area of the 2 Left 

section belt transfer must be examined once each shift and that 

miners are at times required to shovel the belt. Thus, it was 

his opinion that the area of the 2 Left section belt transfer 

constituted active workings. ("Active workings" is defined as 

"any place in a coal mine where miners are normally required to 

work or travel. 30 C.F.R. S 75.2(g) (4).) Because section 75.400 

prohibits the accumulation of float coal dust and coal dust in 

active workings, Workley believed that the condition constituted 

a violation of the regulation. 

Consol's chief safety inspector, Earl Kennedy, stated that 

he was at the mine on January a, and that approximately one hour 

before Workley cited the violation, he, Kennedy, had walked past 

the 2 Left section belt transfer area looking for hazards on the 

belt line. When asked what he had observed, Kennedy responded: 

I seen an area that was well rock 

dusted. I seen an area that was 

properly ventilated. I seen an 

area where there was no ignition 

sources. I seen an area that had 

fire suppression, heat sensors, 

belt scrapers, no rubbing, nothing 

hot, proper walkways, (and] dates 

where the fire bosses had been 

••• recently. I seen an area 

that I would have been proud of. 

Tro I 81o When asked whether he had noticed accumulations of 

coal dust Kennedy repliedu wi saw what I just describedo ie Id. 

Kennedy stated that when he heard that an order had been written 

on conditions in the area he "almost fell down. we l!L. However 6 

Kennedy added that the 2 Left section belt transfer had two 

levels -- an upper and a lower level -- and that he could not 

have seen the area cited by Workley for accumulations of float 

coal dust 6 an area visible from the upper level 0 because heQ 

Kennedy 8 was on the lower level. Tr. I 82-84. 

After passing the 2 Left section belt transferu Kennedy 

traveled to other areas of the mine 6 but he returned to the area 

of the 2 Left section belt transfer after hearing that the 

subject order had been issued. He arrived while the alleged 

accumulations were being cleaned up. Kennedy maintained that if 

there was an accumulation of anything in the area it was a pile 

of rust and dirt, reddish brown in color, under the belt. This 

material had been scraped from the belt by the belt scrapers and 

had fallen under the belt. Tr. I 85. Kennedy believed that the 

heavier particles of rust and dirt fell to the floor, 

particularly under the bottom roller scraper, and the finer 

862 
particles were put into airborne suspension and as dust ended up 

on the belt structure. Although he admitted that "there was some 

coal dust" on the belt structure, most of what was on the belt 

structure, was of the fine, reddish brawn rust and dirt 

particles. Tr. I 86-87. 

William Kun also testified for Consol. Kun has been the 

safety superintendent at the mine since May 1985. Kun stated 

that 3 days before the order was issued he traveled to the area 

of the 2 Left section belt transfer and noticed brownish/black 

material -- "muck, water, whatever" -- under the belt. Kun was 

certain that whatever the material was, .it was not float coal 

dust or spilled coal. Tr. I 113. 

EXISTENCE OF THE VIOLATION 

Workley, an experienced mine inspector, was a cogent and 

credible witness. He described in detail the float coal dust, 

coal dust and loose coal that, he had observed. He determined its 

depth. He estimated and measured its ·extent. He further 

determined through a hands-on approach that the accumulation 

under the belt was dry. Kennedy did none of this and I fully 

credit Workley's testimony regarding what he observed under the 

belt. 

With regard to the float coal dust on the transfer 

structure, the belt structure and the water line, I note 

Kennedy's admission that he could not see the structure on the 

upper level during his first visit to the area. Kennedy only 

viewed the area after abatement had begun, and I credit Workley•s 

testimony that when Kennedy arrived some float coal dust had not 

yet been removed and still was present. Workley had remained in 

the 2 Left section belt transfer area after issuing the order and 

he was monitoring the abatement procedure. Therefore, I find the 

weight of the evidence established that the accumulations existed 

as described by Workley. 

Loose coal and coal dust is combustible, and consol does 

not contend that the area of the 2 Left section belt transfer was 

an inactive workinge Accordingly, I conclude the violation of 

section 75e400 has been proven as charged. 

S&S AND GRAVXTY 

Workley stated that he considered the violation to be of a 

S&S nature because coal dust once ignited can go into suspension 

and propagate a mine fire or an explosion. In his opinion, such 

a result is reasonably likely to occur when accumulations are 

863 
adjacent to potential ignition sources. Tr. I 40-41. As Workley 

put it: 

When you permit combustible material 

to accumulate in the coal mine, all 

that is necessary • • • is an ignition 

source. Rollers on belt lines go bad 

frequently. We have difficulties with 

electrical cables, rocks fall on them 

can split them open. There is 

sparking potential. If an ignition 

source occur(s] and the.float dust or 

dry coal dust is present you have a fire. 

In a coal mine a fire can be a disaster 

in no time. 

Turning from the general'to the specific, Workley described 

several potential ignition sources that he believed made the 

cited accumulations a fire or an explosion waiting to happen. He 

noted that there were bearings on both sides of the transfer 

roller and that all of the belt rollers had bearings. Workley 

maintained that there were approximately 20 roller bearings for 

every 10 feet of belt. Tr. I 41-42. He stated that when a 

bearing "freezes" metal rubs on metal as the roller turns and the 

roller shaft can become red hot from the friction in 11 just a 

short period of time." Tr. I 42. Workley stated that he had been 

told by mine management that as many as a dozen rollers 

previously had gone bad on one belt in one shift. Tro I 44. 

In addition0 Workley explained the way a bearing could 

freeze -- dust and dirt could enter the bearing and create 

excessive friction and heat., 09 0nce the bearing starts 

deteriorating just melts., ij~ Id. 

A further potential ignition source was the bottom belt 

which could shift while it was running and could cut into the 

belt structure., The resulting heat from the friction could start 

a fire or an explosion., Tro I 44-46. 

Finally 9 Workley stated that a layer of float coal dust ~hinner than a ordinary sheet of paper would propagate an 

explosiono When asked ifQ in his opinionu there was enough float 

coal dust present in the left belt transfer area to propagate an 

explosion, Workley replied, "Dozens of times. More than enough." 

Tr .. I 46. 

If a fire were to occur Workley believed that one or more 

miners would probably suffer burns or smoke inhalation attempting 

to extinguish the fire. If an explosion were to occur, not only 

would miners in the vicinity of the 2 Left section belt transfer 

864 
area be subject to concussive 1nJuries but miners in other 

entries could be injured by flying concrete blocks blown out of 

stoppings. Tr. I 49-50. 

Workley admitted that the walkways, the roof and the ribs 

surrounding the accumulations were well rock dusted and he agreed 

that if there were an ignition and rock dust were blown into the 

air by the ignition, the rock.dust could prevent propagation of 

the explosion. Tr. I 59-60. He also agreed that fire prevention 

devices such as a carbon dioxide monitoring system and a fire 

suppression system were installed along the belt line, 

Tr. I 66-67, and he acknowledged that at the time he issued the 

subject order, no defective bearings were present in the 2 Left 

section belt transfer area. Tr. I 68. 

Kennedy, testifying on Consol 1 s behalf, he stated that the 

bearings on the transfer rollers were self-greased and thus were 

not as subject to failure from dust or dirt getting into their 

mechanisms. Tr. I 95. On the· other hand, the bearings for the 

belt rollers were not self-greased and he agreed that they 

periodically "go bad." Tr. I 97. According to Kennedy, when 

this happened the top rollers rarely got hot enough to cause a 

fire. 

Although Kennedy admitted, nr do know of situations where 

belts cutting have caused belt fires," he maintained that the 

subject belt structure was of a new design that prevented the 

belt from ever cutting into the structure. Tr. I 97-98. Kennedy 

also maintained that if the area of coal dust cited by Workley 

had been present, it would have presented a "serious problem" 

only if it had been ncompletely around the area • o • [and had 

been] dry float dust just like gunpowder 0 °

1 which it was not. 

o ! Jl01o 

The Commission has held that a violation is "significant and 

substantial" if, based on the particular facts surrounding the 

violationu there exists a "a reasonable likelihood that the 

hazard contributed to will result in an injury or illness of a 

reasonably serious :nature .. vQ Cement Division.· National Gypsum 

Co.v 3 FMSHRC 822, 825 (April 198l)o In Mathies Coal Co., 6 

FMSHRC ~u J-4 (January 1984) 8 the Commission further explained: 

In order to establish that a violation 

of a mandatory safety standard is 

significant and substantial under National 

Gypsum, the Secretary of Labor must prove: 

(1) the underlying violation of 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 

865 
in an injury; and (4) a reasonable 

likelihood that the 1n)ury in 

question will be of a reasonably 

serious nature. 

I have concluded that the accumulations existed as described 

by Workley and that they constituted a violation of section 

75.400. Further, there certainly was a measure of danger 

contributed to by the violation. Obviously, loose coal can burn. 

In addition, float coal dust and coal dust can burn and, if put 

into suspension, can propagate an explosion. Moreover, multiple 

ignition sources were present. Even if I were to find that 

Kennedy was right about the belt not being able to cut into the 

belt structure and that the self-greasing roller bearings were 

less likely to fail (and I have no reason to disbelieve his 

statements in this regard) there remain the many non-selfgreasing roller bearings, which as both Workley and Kennedy 

agreed, were subject to failure and overheating. The fact that 

the bottom non-self greasing rollers were more likely to fail 

does not mean that those for the top belt did not occasionally 

fail as well and, in any event, the pile of coal dust and loose 

coal under the bottom belt was adjacent to the bottom rollers. 

Exh. P-1. 

I believe the evidence establishes that if normal m1n1ng 

operations had continued stuck roller bearings would have 

resulted and an actual ignition source would have been present. 

Thus, the hazard contributed to by the violation, a fire or 

explosion in the active workings in question, was reasonably 

likely to occur and posed a reasonable likelihood of injury to 

miners working in the area of the 2 Left section belt transfer. 

Obviouslyu any injuries resulting from such a fire or explosion 

would be of a reasonably serious natureo 

In sum0 I agree with Workley that the violation was S&S. I 

also conclude that it was a serious violation. In assessing the 

gravity of the violation, both the potential hazard to the safety 

of miners and the probability of the hazard occurring must be 

analyzed. Here the potential hazard was grave$ Underground 

fires andfor explosions present a very real threat of death or 

serious injury. Moreover, as I have found, had normal mining 

operations continued, a frozen roller bearing reasonably could 

have been expected and an actual ignition source would have been 

presento 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

Workley testified that a certified person must examine the 

area of the 2 Left section belt transfer at least one time each 

shift. Tr. I so. Given the quantity of the accumulations, he 

estimated that it had taken up to three days for them to reach 

the state he had observed. Further, given the location of the 

866 
accumulations and the fact that they were "easily observable," 

Workley believed that Consol's failure to detect and correct the 

condition was the result of unwarrantable failure. 2 Tr. I 50-51. 

In Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (December 

1987), and Youghiogheny & Ohio Coal co., 9 FMSHRC 2007, 2010 

(December 1087), the Commission held that "unwarrantable failure 

means aggravated conduct, constituting more than ordinary 

negligence, by an operator in relation to a violation of the 

Act." The Commission stated that while negligence is conduct 

that is "inadvertent," or "inattentive," conduct constituting an 

unwarrantable failure is conduct that is "not justifiable" or 

"inexcusable". Emery, supra · 

As previously stated, Workley was a cogent and credible 

witness. His estimates of the length of time the accumulations 

had existed and his opinion that the accumulations should have 

been easily detected by the preshift examiners are worthy of 

belief. For example, as noted·below, Workley stated that he 

could see the float coal dust from 50 feet away, and I accept 

this to be a statement of fact. Moreover, the pile of coal dust 

and loose coal under the belt was visually obvious. 

Thus, in view of the size and extent of the accumulations 

and the fact that it took several shifts for the accumulations 

to reach the point at which Workley found them, I hold that the 

repeated failure of consol to detect the accumulations and to 

remove or to neutralize them was the result of Consol's 

unwarrantable failure to comply with section 75.400. 

I further conclude that consol exhibited high negligence in 

overlooking the prohibited accumulations for the several shifts 

that they existedo 

SECTION 104(4)(2) ORDER NO. 3715920, 1/13/92, 30 C.F.R. S 75.400 

Order No. 3715920 states: 

Combustible material in the form of 

dry loose coal and coal dust had 

accumulated between and beside the 

rails of the old 11 North Spur from 

roof and rib sloughage and from 

spillage off of loads parked there. 

The loose coal has been ground into 

fine dry black powder where the 

wheels of loaded coal cars travel, 

and is laying against the rails 

2 Workley testified that he could see the black float coal dust from 

50 feet away. Tr. I 50-Sl. 

867 
which are the return conductors of 

the 300 volt D.C. trolley system. 

The combustible· [material has] 

accumulated mostly in the last 400 

feet of the spur. The most recent 

date board was 11/25/91 on a crib 

near the end of the spur. 

Exh P-7. The order alleges a S&S violation of section 75.400. 

Workley testified that he inspected the 11 north spur, a 

side track running off of the main track where empty andfor 

unneeded mine cars regularly were parked. The mine cars were 

backed into and pulled out of the spur by a locomotive that 

derived its power from the track trolley wire. Tr. I 

131-132. Workley described the spur as extending approximately 

1,000 feet off of the main track. Tr. I 124-127. 3 The trolley 

wire ran along the main track and extended about 30 feet into the 

spur. Tr. I 146. At the end of the spur there was a crib on 

which there was a date board. The most recent date on the board 

was November 25, 1991. Tr. I 147. 

Workley testified that on January 13, he commenced his 

inspection of the spur at its mouth-- i.e., the point where the 

spur joined the main track. Mine cars were parked in the spur 

and Workley had to walk between the rib and the cars to inspect 

the area. Tr. I 149. In the back 400 feet of the spur he 

observed accumulations of dry, loose coal and coal dust along the 

track and between the rails. Workley stated that the coal and 

coal dust came from small chunks of coal that had fallen from the 

mine roof and ribs. He also indicated that he believed there was 

some spillage from the mine cars. Tr. I 125, 128. Adjacent to 

the rail the coal had been finely ground. It was black in color 

and Workley picked some up and described it as having the 

consistency of "facial powder." Tr. I 128. 

The coal and coal dust became more extensive as Workley 

neared the end of the spur~ The entry was approximately 13 feet 

wide. Toward the back of the entry the accumulations extended 

from rib to rib. Tr. I 128. The coal and coal dust varied in 

thickness from one inch to six or seven inches, and, according to 

Workley 8 all of it was extremely dry. Tr. 128-129. 

3 According to Workley, a full trip of mine cars contains about 35 

cars. If such were parked in the spur, the cars would extend from the mouth of 

the spur nearly to its end. Tr. I 147. 

868 
EXISTENCE OF THE VIOLATION 

consol did not offer testimony to counter Workley•s 

description of the condition of the spur. Kun, the only witness 

to testify for Consol regarding the alleged violation, had 

nothing to say concerning the existence of the coal and coal 

dust. Accordingly, I find that the conditions described by 

workley in fact existed. 

In defining a prohibited "accumulation" for section 75.400 

purposes, the Commission has noted that while "some spillage of 

combustible materials may be inevitable in mining operations. • • 

it is clear that those masses of combustible materials that could 

cause or propagate a fire or explosion are what Congress intended 

to proscribe." Old Ben Coal Co. 2 FMSHRC 2808 (October 1980). As 

I will describe when discussing the issue of S&S, workley 

credibly testified that given the extent and nature of the coal 

and coal dust and its location next to potential ignition 

sources, the accumulations notonly could cause a mine fire, it 

was reasonably likely that they would. Tr. I 131-132. I 

therefore conclude that the Secretary has proven that the cited 

conditions constituted a violation of section 75.400. 

8&8 AND GRAVITY 

workley believed the accumulations constituted a S&S 

contribution to a mine safety hazard. He noted the extremely 

dry, finely ground coal dust and loose coal lay approximate to 

the rails and adjacent to the wheels of the mine cars. Workley e~lained that the locomotive pulling the cars drew up to 2,000 

amps of direct current and that the current passed through the 

cars to the wheels and then to the rails and then to a rectifier 

to complete a circuit. Tr. I 131-132. If there was a gap 

between the wheels and the rail or a gap between the track 

joints, arcing could occur. Tr. I 134. workley stated that such 

arcing was not unusual and that he had observed it almost every 

time he has seen mine cars being moved by a locomotive. ("I've 

seen sparks and small arcs come off the wheels of mine cars 

almost every time that I'm alongside the haulage and the trip 

qoes past with the motor applying power." Tr. I 135.) Workley 

noted that if a locomotive were moving a full trip of cars into 

or out of the spur, the arcing and sparking could occur almost to 

the end of the spur. He believed that the coal and fine dry coal 

dust near the track could be "very easily ignited" and that given 

the extent of the accumulated material a fire could "get out of 

hand very quickly." Tr. I 137. 

Workley also remarked upon the absence of heat sensors and 

fire suppression devices in the spur and stated that while the 

locomotive operator would be immediately subject to the dangers 

of smoke inhalation and burn injuries, if smoke got into the main 

line haulage entry, all miners working along the haulage or 

869 
traveling it would be endangered. Tr. I 138-139, 140. However, 

workley also observed that the spur is ventilated by air that 

passes from the main line haulage into the spur and travels to 

the end of the spur before exiting into the return. Tr. 150. 

Thus, should a fire occur in the spur, in the course of normal 

mining operations the only person who would be inby the smoke 

would be the examiner who must walk and examine the spur and the 

returns. Tr. I 151. 

consol offered no testimony refuting Workley's contentions 

regarding the ignition source presented by the mine cars. 

Although Kun testified that he never had observed sparks caused 

by moving cars in the spur, he also stated that he had never been 

in the spur when cars were being moved. Tr I 174. Moreover, he 

agreed that he had seen sparks when he had seen cars being moved 

in other areas of the mine. Tr. I 186. 

I conclude that the Secretary has established the S&S nature 

of the violation. The violation ~xisted as charged. The 

accumulated coal and coal dust was located in an area that was 

required to be preshift examined, as Workley and Kun agreed. 

Tr. I 141, 171. Thus, miners were exposed to the hazard. The 

mass of coal and coal dust that could have burned was large. 

Therefore, a "measure of danger to safety" was presented by the 

cited accumulation. 

Kun stated that 95 to 98 percent of the time he had been in 

the spur he found it to be full of coal cars. Tr. I 185. I 

accept this and conclude that there was a great deal of coal car 

movement into and out of the spur. Given the fact that arcing 

and sparking would most likely occur in the immediate vicinity of 

the loose coal and coal dust whenever cars were moved, I find 

that had normal mining operations continued there was a 

reasonable likelihood of fire. 

Moreover, such a fire was reasonably likely to cause injury 

to the locomotive operator or to any certified person from Consol 

who was examining the spur or the return air courses that 

ventilated by air that had passed through the spur. Finally, and 

as Workley noted, such persons would be subject to burns and 

smoke inhalation, injuries that would be of a reasonably serious 

nature. 

In assessing the gravity of the violation, I note that the 

potential hazard was grave. Smoke inhalation and burns can 

severely injure miners. Given the extent of the accumulations, 

their close proximity to the tracks, the probably frequency of 

arcing or sparking along the tracks and the regular presence of 

miners proximate to the hazards, I conclude that this was a very 

serious violation. 

870 
tmWARRANTABLE FAILURE AND NEGLIGENCE 

Workley believed that the coal and coal dust "took days or 

weeks or maybe even a month" to accumulate. Tr. I 141. He 

further stated, as already noted, that a certified person is 

required to examine the spur, and he added that any person who 

walked to the end of the spur could have seen the accumulations. 

Tr. I 141-142. To Workley, the presence of the accumulations 

signaled the failure of the preshift examination process. 

Tr. I 142. 

Kun emphasized the difficulty of making the required 

examination. He testified that the entry had been cut with a 

borer. As a result, the ribs sloped from the roof. Since mine 

cars usually were in the entry the examiner had to walk between 

the sides of the cars and the ribs and there was very little 

clearance. Tr. I 166-167c In addition, although the spur was 

six feet high for its first 150 feet, it decreased to 4 feet 

after that point. Tr. ·I 165. ,,Thus,. the preshift examiner not 

only had to bend as he traveled·the entry, he also had to drop 

one shoulder as he walked. Tr. I 165-166, 168. Further, because 

the coal and coal dust was compacted, it was difficult for the 

preshift examiner to see under the mine cars, there being about 

one to one and a half inches of clearance between the top of the 

compacted material and the bottom of the mine cars. Tr. 169-170, 

182. However, Kun subsequently admitted that there was 

approximately 24 inches of space between each mine car and that 

it was possible to see the mine floor between the cars. 

Tr. I 185. 

I accept Kun's testimony concerning the inconveniences and 

complications involved in examining the spur, nevertheless 

whatever the difficulties the area is required to be examined so 

that hazardous conditions are reported and corrected. There was 

no testimony offered to refute Workley 8 s belief that the 

accumulations had existed for some days at least, and I agree 

with Workley that the extent of the accumulations and the length 

of time they existed makes it clear that the preshift examination 

was wholly inadequateo Moreoveru while it may well have been 

virtually impossible to look beneath the cars, the accumulations 

should have been readily apparent between the cars. Therefore, I 

also agree with Workley that in allowing the violation to exist, 

Consol 9 s preshift examiner or examiners exhibited conduct that 

was not justifiable or inexcusable, and I conclude that the 

violation was indeed due to Consol's unwarrantable failure to 

comply with section 75.4000 

871 
I further conclude that consol exhibited high negligence in 

overlooking the prohibited accumulations for the several shifts 

that they existed. 

WEVA 92-988 

SECTXON l04(a) CXTATXON NO. 3718466, 12/3/92 

30 C.F.R. § 75.202(a) 

citation No. 3718466 states: 

There is an area of inadequately 

supported roof in the 2 left return 

aircourse. At 60 feet outby spad 

818 there is a slip outby a roof 

bolt and a 1/2 inch crack extends 

into the rock at a 45 [degree) 

angle. The j;:.op is sagging and 

drummy outby the.slip and the bolt 

is 48 inches away. 

Exh P-1A. The citation alleges a S&S violation of section 

75.202(a). 4 

Workley testified that on December 3, 1992, he was 

inspecting the 2 Left return aircourse near the mouth of the 

section when he observed a crack in the mine roof 1/2 inch to 3/4 

inch wide. The crack was approximately 5 feet long and ran 

across the entry. The roof was approximately 6 1/2 to 7 feet 

high. One side of the crack was "hanging" about an inch below 

the other side. Tr. 190-191. Workley stated that he measured 

the depth of the crack with a ruler and found it to be 18 inches. 

The crack extended into the roof on an angle of approximately 45 

degrees. Tr. I 191. 

Workley believed that the crack indicated a vertical fault 

in the roof strata. He explained that such faults are especially 

dangerous because the roof can slip and fall without warning 

along the fault line. Tr. 192-193. Because of this and because 

4 30 C.F.R. § 75.202(a) states: 

The roof face and ribs of areas where 

persons 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 rack bursts. 

872 
the crack was in the middle of an entry that was daily traveled 

by miners, Workley believed that the condition violated section 

75.202 (a) • 5 

EXISTENCE OF THE VIOLATION 

Consol did not challenge the fact that miners at the Osage 

No. 3 Mine worked and traveled the entry directly beneath the 

cited slip. Thus, the question is whether the roof was supported 

or otherwise controlled on December 3 to protect those persons 

from a roof fall? 

Kun testified that approximately two weeks after the 

violation was abated he traveled the entry. While he observed 

posts that had been set to abate the condition, he was unaware 

that a citation had been written for the condition and he was 

curious as to why the posts had been set. Tr. I 206. 6 After he 

found out that a citation had been issued, he went back to look 

more closely at the condition. He also had looked at the 

condition a week before the'hearing. According to Kun, when he 

observed the roof the week before the hearing its condition was 

unchanged from when he had seen it after learning about the 

citation. Tr I 207-207. Kun stated that the posts did not 

appear to be taking any weight and wedges at the top of the posts 

were not squeezed-out, as they would have been if the roof were 

sagging on the posts. Tr. I 210-211. In addition, the crack had 

not widened. Tr. I 211. 

Kun measured the spacing to the roof bolts and found them to 

be approximately 48 inches apart in the area of the crack. 

Tr. 212. (Workley did not measure the roof bolt spacing, but had 

testified that the roof control plan required bolts to be 

installed on five foot centers and that the crack developed in an 

area between the bolts. Tr. I 192. Since Kun actually measured 

the spacing -- and since the bolts were not repositioned between 

the time Workley cited the violation and Kun measured -- I accept 

Workley testified that miners would "drag" the entry and would do so ~t least daily. Tr. X 195. (He described dragging as follows: "a piece of 

brattice cloth is usually attaches to a board or a stick. The miners drag that 

&long behind them down the aircourse. As it drags on the mine floor it turns 

[the] coal dust down into the rock dust.w Id.) In his opinion other miners who 

would be subject to the roof fall hazard were persons examining the return air 

course, persons rock fall hazard were persons examining the return air course, 

persons rock dusting it and any mine who might use the aircourse for "sanitary purposes.~ Tr. I 199. 

6 Workley had testified that given the height of the entry and the fact 

that one side of the crack overhung the other by about one inch, it would not 

have been unusual for someone examining the entry to have missed seeing the 

crack. "If he didn't look up at just the right location as he was passing under 

it, he would miss the crack." Tr. I 203. 

873 
Kun's testimony that the roof bolts in the area of the crack were 

approximately one foot closer together than required by the 

plan.) In addition, Kun testified that a plank had been 

installed at one end of the crack and that the back portion of 

the crack was supported by the plank. Tr. I 210. (Workley could 

not recall if the plank had been in place on December 3, and I 

accept Kun's testimony in this regard. Tr. I 210.) 

Kun believed that when roof bolts had been installed in the 

entry, the weakness in the roof had been detected by Consol, the 

spacing of the roof bolts had been accordingly reduced and the 

plank had been installed. Given the reduced spacing of the roof 

bolts and the presence of the plank, he did not believe that roof 

would have fallen. Tr. I 209-210, 212-213. However, he also 

stated that "it's possible additional posts should have been set 

• [i]t's a judgement thing that everybody has to make." 

Tr. I 219. 

I am persuaded that the Secretary has established the 

existence of the violation. Workley's testimony regarding the 

inherent danger of a verticle fracture in the plane of the roof 

strata is compelling. As Work.Iey explained, a verticle fracture 

in the Pittsburgh coal seam is particularly likely to produce 

unpredicted falls between the roof bolts. Tr. I 197-198. · 

Moreover, while Kun testified that the posts set to abate the 

violation did not appear to be taking any undue weight and while 

I fully credit his testimony, I do not find it relevant to 

whether or not on December 3 the roof was supported to protect 

persons from roof falls. The posts had been set to abate the 

violation and all that I can conclude from Kun's testimony is 

that they were doing their job. 

Moreover, Consol does not dispute Workley's testimony that 

the 2 Left return aircourse is required to be traveled weekly by 

a person examining the aircourse and that it at least 

occasionally has to be rock dusted. 

I therefore hold that on December 3, the area cited was an 

area where persons were required to work and travel and the roof 

was not supported to protect those persons from falls. 

S&S AND GRAVITY 

The evidence establishes a violation of the cited standard. 

There was a measure of danger contributed to by the failure to 

support the roof to protect those working and traveling under it 

from the danger of a roof fall, in that the lack of adequate 

support, a roof fall could occur at any moment and without 

warning. Further, during the course of continued normal mining 

operations, miners were required to travel and work under the 

cited area, and given the propensity of the roof to fall along 

the fault line, I conclude it was reasonably likely that had 

normal mining operations continued the roof would have fallen and 

struck a miner. Finally, as Workley stated, the fall of a rock 

874 
weighing at least one half of a ton and falling from six and one 

half feet on an unsuspecting miner would seriously disable, if 

not kill outright, the person struck. Tr. I 199. Thus, the S&S 

designation was appropriate and is affirmed. 

Also, I conclude that this was a serious violation. As I 

have found, the potential hazard to miners was at least one of 

disabling injury. Because the entry was not traveled or worked 

in during every shift, there was a somewhat reduced likelihood of 

a miner being injured. Thus, what might otherwise have been 

found to constitute an extremely serious violation is found to be 

serious instead. 

NEGLIGENCE 

At the time he cited the violation, Workley believed that it 

was due to Consol's "low" negligence. See Exh. P-1A. This 

assessment of negligence, made contemporaneously with the 

citation of the violation, was confirmed by Workley's testimony. 

Workley persuasively explained how the crack would have been easy 

for the someone examining the. return aircourse to miss. The 

examiner would have had to "look up at just the right location as 

he passed under it." Tr. I 203. Even an experienced mine 

examiner easily could have walked by the area and not have 

detected the crack. Tr. I 201. Therefore, I agree with Workley 

and find that the violation existed due to a low degree of 

negligence on Consol's part. 

WEVA 92-921 

SECTION 104(4)(2) ORDER NO. 3315335, 7/29/91, 30 C.P.R. S 75.515 

Order Noo 3315335 states~ 

on the 6 South West Longwall at the 

power center a properly assembled 

entrance was not provided for the 

shearer circuit trailing cable 

plugo Bolts were missing from the 

back of the cable plug assembly 

thereby not providing proper strain 

relief. Mine management was told 

on July 25u 1991 that this needed 

to be repaired before starting load 

coal with the longwall. Two passes 

were mined. Bill Rice was the 

responsible official. 

875 
Exh. P-3(B). The order alleges an S&S violation of 

section 75.515 and that the violation was the result of Consol's 

unwarrantable failure to comply with the cited standard. 7 

Michael Kalich, an electrical inspector for MSHA, testified 

on behalf of the Secretary. Kalich explained that on July 25, 

1991, he conducted a compliance assistance inspection of the 6 

southwest longwall of Consol's Humphrey No. 7 Mine. The longwall 

was in the process of being set up and consequently was not yet 

in operation. The inspection began at the longwall power center. 

Tr. II 13. (The power center was located on intake air at the 

track heading. At the power center incoming 7200 high voltage 

power was transformed to the 995 voltage power that was utilized 

on the longwall. Tr II 13-14.) 

Kalich stated that the power center had four cables that 

went from the center to the longwall master control boxes. The 

cables were attached to the center by a cable coupler. The case 

of the coupler was metal. He explained that the coupler 

consisted of two parts: one part was bolted to the power center 

itself, the other part was in essence a plug that .terminated the 

cable and that plugged onto the part of the coupler attached to 

the power center. Kalich drew an analogy, "[I]t's a large 

version of a plug that you would use in your house. It just has 

more connection points." Tr. II 16. 

Upon inspecting the cables, Kalich found that one had a 

coupler (also known as a strain clamp) that was missing a bolt. 

Tr. II 14. 

·Kalich identified a picture of a coupler similar to the one 

that he had observed. Exh. P-1(B). Kalich testified that the 

cable that terminated in the coupler was about two and one half 

inches in diametero The coupler was approximately 18 inches long 

and 10 to 12 inches wide. At the point where the cable entered 

the couplerq a bolted cable clamp helped to hold the cable in 

place. Tr. II 16-17, see also Exh P-l(B)(part "I" of bottom 

diagram). The purpose of the clamp was to prevent strain on the 

cable as it entered the coupler. Tr. II 17e 

Kalich stated that during his inspection on July 25, he 

found missing one of the bolts that secured the clamp to the 

cable. When he returned on July 29 and conducted a regular 

inspection of the longwall, the bolt was still missing and he 

issued the subject order of withdrawal. Tr. II 17. Kalich 

7 Section 75.515 states in pertinent part: 

Cables shall enter metal frames of motors, 

splice boxes, and electric compartments 

only through proper fittings. 

876 
maintained that because the clamp was loose, the cable was loose 

where it entered the coupler and that the cable could be moved. 

Kalich stated that had the bolt been present the cable could not 

have been moved. Tr. II 35-36. 

Kalich further stated that by not having the clamp tightened 

around the cable, when the cable was pulled it would place a 

strain on the internal connections inside the coupler. If the 

internal connections, which are not insulated, were pulled loose 

the wires could move around inside the coupler housing, they 

could contact other wires and create an electrical fault inside 

the coupler. Tr. II 25. In turn, thi~ could burn a hole in the 

metal case of the coupler and cause a fire. In addition, any 

person then in contact with the coupler would be subject to a 

shock and burn hazard. Tr. II 26-27. 

Stanley Brozik, the safety supervisor at the mine, testified 

on behalf of Consol. Brozik traveled with Kalich on July 29 and 

the subject withdrawal order was issued to him. Brozik stated 

that the cited clamp was sec~~ed ar,ound the cable with two bolts. 

He agreed that on July 29, one of the bolts was present and one 

was missing. He further agreed that Kalich was able to wiggle 

the cable because the clamp was not tightened on one side. Tr. 

II 71-72, 75. 

EXISTENCE OF THE VIOLATION 

The evidence establishes that the cable entered the metal 

frame of the cable coupler through a fitting that was loose due 

to the missing bolt on the strain clamp. A loose fitting is not 

a proper fitting and I conclude that the violation of section 

75.515 existed as charged. 

S&S AND GRAVITY 

There was a violation of the underlying safety standard. The 

discrete safety hazard contributed to by the violation was 

described by Kalich: 

There would have to be some way 

that sufficient strain or movement 

would be applied to the cable to 

cause the connections to become 

loose or to be pulled out inside 

the coupler. o o [T]hen you would 

have a bare wire flopping about 

inside the coupler • • • [and if 

phase to phase contact occurred] 

you would have arcing, burning, and 

the possibility of a fire. 

877 
Tr. II 53. As noted, Kalich also believed that in the event of 

phase to phase contact, a shock hazard would exist for anyone 

handing the coupler. Tr. II 27. Further, Kalich testified that 

during the course of normal mining operations the cable would be 

pulled when miners picked up and moved the cable and that over 

time, the movement of the cable would loosen the connections. 

Tr. II 48-50. This testimony was not disputed by Brozik. I 

conclude therefore that the evidence established the loose clamp 

contributed to the possibility of a fire endangering those in the 

immediate area of the power center or working inby and of a shock 

endangering anyone handing the coupler at the moment phase to 

phase contact occurred and thus that the second element of the 

Mathies test has been satisfied. Further, because any resulting 

injury from burns, smoke inhalation or shock would be of a 

reasonably serious nature, the fourth element likewise has been 

satisfied. 

As is frequently the case when the Secretary alleges that a 

violation is S&S, the question is whether the Secretary has 

established a reasonable likelihood that the hazard will result 

in an injury. In other words, had normal mining operations 

continued on the longwall, would there have been a reasonable 

likelihood of "an event in which there [would have been] an 

injury?" u.s. Steel Mining Co., 6 FMSHRC 1834,1836 (August 

1984). 

Here, I conclude the answer is "no." Kalich stated that in 

order for there to be a fire or shock hazard, the connectors 

inside the coupler would have had to contact one another. In 

order to do this the cable and the coupler would have had to be 

subject to repeated movement. The only way the cable and coupler 

would be moved 9 according to Kalich, was manually or by using a 

wincho Kalich believed that a person pulling once on the cable 

would not be able to loosen the connections, that the movements 

would have to take place over time 8 but he did not know how much 

movement would be required. Tr. II 48. Nor was he able to 

testify that he had ever seen internal coupler connectors that 

made contact under circumstances similar to those that he cited. 

Tro II 58. Further, he admitted that in order for the winch to 

move the cable in such a way as to put any strain on the coupler 0 

the winch would have to have been used incorrectly. Given these 

factors, I cannot conclude that the Secretary has established 

that had normal mining operations continued on the longwall it 

878 
was reasonably likely that the connectors inside the coupler 

would have become detached and touched one another leading to a 

fire or to a shock injury. 8 

Even though I do no find that the violation of 

section 75.515 was S&S, I still conclude that it was of a serious 

nature. A potential hazard to miners from burns, smoke 

inhalation and/or shock injuries existed as did the possibility 

that the violation could cause such hazards to occur. In my view 

the fact that the hazards were not reasonably likely to occur 

reduces what would have been a very serious violation to one that 

was serious. 

UNWARRANTABLE FAILURE AND NEGLIGENCE 

I also conclude that the Secretary has failed to establish 

that the violation was due to Consol's unwarrantable failure to 

comply with section 75.515. Kalich's unwarrantable failure 

finding was based upon his coltlpli.ance assistance inspection of 

July 25. As Kalich put it: "I hadpointed the [missing bolts] 

out on July 25 • • • [and had] told mine management that they 

needed [to be] fixed before the 29th and found that they hadn't 

been corrected. [I]n my mind it left me no choice but to issue a 

(section l04]{d){2) order with high negligence." Tr. II 36-37. 

When asked whether he believed Consol had consciously disregarded 

the requirements of the standard Kalich stated: "Seeing as how I 

pointed it out, that's the conclusion that I c(a]me to." 

Tr II 43, See also Tr. II 45. 

Brozik testified that the bolt had not been purposefully 

left off of the coupler clamp. Although, Brozik was not present 

on the section on July 25, he explained that he got his 

information about conditions on July 25 from talking with the 

company safety escort and "everybody on the site." Tr. II 73, 

74-75o Brozik believed that on July 25 the bolt was available 

but that the nut to secure it was missing, and that on July 29, 

the nut was on the section but the mechanic had not yet attached 

the bolt and nut to the clamp. Tr. II 68, 70-71, 73. If the 

bolt was there 0 Brozik did not know why it had not been secured 

to the clamp. Tre II 83. 

The fact that the missing bolt was pointed out to Consol 

during the compliance assistance inspection does not, in and of 

In concluding that the violation was not S&S, I have not considered 

the fact that should the connectors contact one another, the circuit breaker 

would have tripped because I accept Kalich's testimony that even if the circuit 

breaker worked as it was supposed to there would still have been an electrical 

arc before power was cut off. Tr. II 53. Rather, I am relying on what seems to 

me to be a dearth of evidence that the cable and coupler would be subjected to 

the repetitive movements necessary to cause an electrical malfunction. 

879 
itself, establish unwarrantable failure. It proves knowledge of 

the violative condition, but such knowledge is not a sole 

prerequisite for unwarrantable failure. There must be other 

factors that allow a conclusion of inexcusable conduct on 

Consol's part. Here, those factors are lacking. 

It is helpful to recall that the compliance assistance 

inspection came at a time when production had not yet begun on 

the longwall and when Consol was attempting to make certain that 

prior to production all was "kosher" on the section. Other 

potential violations of regulations were pointed out to Consol. 

In the scope of the impending startup pf the longwall, the fact 

that one bolt was missing from a clamp for the cable coupler on 

one of the cables at the power center might reasonably have been 

viewed by Consol as a relatively minor problem, especially since, 

as I have found, the condition did not pose a reasonable 

likelihood of producing a fire or shock accident once mining 

began. In this context, I conclude that it was not the kind of 

condition whose failure to COJ:rect.would automatically rise to 

the level of inexcusable conduct, and this is so regardless of 

whether or not Brozik was right in believing that consol had 

secured the missing nut but had inadvertently failed to install 

it. 9 

Rather than an unwarrantable failure, I conclude that the 

fact that the missing bolt was not installed on July 29 was 

likely due to inattention or inadvertence and thus that in 

allowing the violation Consol was negligent. 

OTHER CIVIL PENALTY CRITERIA 

As revealed by the proposed assessment forms contained in 

each docket and which the parties have stipulated accurately set 

forth Consolus sizeu the company is largeo In addition, and as 

also stipulated by the parties, the size of any penalties 

assessed for the subject violations will not affect Consol's 

ability to continue in business. Further, I find that in each 

instance where a violation has been found or where the parties 

have sought my approval of a settlement 8 Consol demonstrated good 

faith in abating the violations. Finally, I find that Consol's 

history of previous violations at the mines involved is not such 

as should otherwise increase the penalties assessed or agreed to 

by the parties. 

9 The mischief of automatically finding unwarrantable failure based 

solely upon conditions that have been pointed out during a compliance assistance 

inspection was remarked upon by counsel for Consol. Tr. II 90. I agree with him 

that such automatic unwarrantable findings can go far to lessen the effectiveness 

of the compliance assistance program, a program that has proven of great value 

in furthering the goals of the Act. 

880 
CIVIL PENALTY ASSESSMENTS FOR CONTESTED VIOLATIONS 

DOCKET NO. WEVA 92-933 

ORDER NO. 3715916, 1/8/92, 30 C.F.R. S 75.400 

The Secretary has proposed a civil penalty of $800. Noting 

especially that Consol is a large operator and that the violation 

is serious and the result of a high degree of negligence on 

Consol's part, I conclude that a civil penalty of $1,000 is 

appropriate. 

ORDER NO. 3715920, 1/13/92, 30 C.F.R. S 75.400 

The Secretary has proposed a civil penalty of $1200. For 

the same reasons as those set forth above, I conclude that a 

civil penalty of $1,000 is appropriate. 

CITATION NO. 3718486, 12/3/92 30 C.F.R. S 75.202(&) 

The secretary has proposed a civil penalty of $227. The 

violation is without question serious, the low degree of 

negligence on consol's part is a significant factor mitigating 

what would otherwise have been a much more substantial civil 

penalty. I conclude that a civil penalty of $300 is appropriate. 

DOCKET NO. WEVA 92-921 

ORDER NO. 3315335, 7/29/91, 30 C.F.R. S 75.515 

The Secretary has proposed a civil penalty of $1,000. 

Although this was a serious violation and although Consol is a 

large operatoru I believe that given the fact that the violation 

was due to Consolis inadvertence or inattention rather than to 

its purposeful disregard of the requirements of the .standard or 

to its inexcusable failure to comply, the proposal is excessive. 

! conclude that a civil penalty of $400 is appropriate. 

ORDER 

Consol is ORDERED to pay civil penalties in the settlement 

amounts shown above in satisfaction of the violations in 

questions. Further, Consol is ORDERED to pay civil penalties in 

the assessed amounts shown above in satisfaction of the contested 

violations in question. 

With respect to the settled cases, the Secretary is ORDERED 

to modify Citation No. 3307656 and Order No. 3716059 by deleting 

the S&S designations. The Secretary is ORDERED to modify 

Citation No. 3715905 and Citation No. 3718483 by deleting the 

881 
S&S designations. The Secretary is ORDERED to modify Order 

No. 3108769 and Order No. 3108741 to citations issued pursuant to 

section 104(a) after having deleted the unwarrantable failure 

designations. 

With respect to the contested case, the Secretary is ORDERED 

to modify Order No. 3315335 by deleting the S&S designation and 

the unwarrantable designation. Further, the Secretary is ORDERED 

to modify Order No. 3315335 to a citation issued pursuant to 

section 104(a) of the Act. 30 u.s.c. 814(a). 

Payment by Consol is to be made to the Secretary within 

thirty (30) days of the date of this decision, and upon receipt 

of payment, these matters are dismissed. 

Distribution: 

David F. Barbour 

Administrative Law Judge 

Caryl Casden, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203 

(Certified Mail) 

Daniel E. Rogers, Consolidation Coal company, Legal Department, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Mro Robert Co Mooreu UMWA, Rt. 5 0 Box 207u Morgantown, WV 26505 

(Certified Mail) 

882 
FEDERAL IIIHE SAFETY ARD HEAIWU: REVIEtf COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 101993 

DOUGLAS E. DEROSSETT, 

complainant . . DISCRIMINATION PROCEEDING 

v. . . 

0 

. Docket No. KENT 93-203-D MSHA Case No. PIKE-CD-92-~4 

MARTIN COUNTY COAL CORPORATION, : 

Appearances: 

Before: 

Respondent MTR Surface Mine No. ~ 

DECISION 

Johann F. Kerlotz, Esq., Piper, Wellman and 

Bowers, Lexington, Kentucky, for Complainant; 

Diana M. Carlton, Esq., Stoll, Keenan and 

Park, Lexington, Kentucky, for Respondent 

Judge Melick 

This case is before me upon the complaint by Douglas E. 

DeRossett under section 105(c)(3) of the Federal Mine 

Safety and Health Act of ~977, 30 u.s.c. 80~, et seg., the 

"Act,n alleging violations of Section ~05(c)(~) of the Act, 

by Martin county Coal Corporation (Martin County). 1 In a 

Section l05(c)(l) of the Act provides as follows: 00No person shall discharge or in any manner discriminate 

against or cause to be discharged or cause discrimination 

against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant 

for employment in any coal or other mine subject to this Act 

because such miner 0 representative of miners or applicant for 

employment has filed or made a complaint under or related to 

this Actu including a complaint notifying the operator or the 

operator 0 s agentu or the representative of the miners at the 

coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine 0 or because such miner 1 

representative of miners or applicant for employment is the 

subject of medical evaluations and potential transfer under 

a standard published pursuant to section 10~ or because such 

miner, representative of miners or applicant for employment 

has instituted or caused to be instituted any proceeding under 

or related to this Act or has testified or is about to testify 

in any such proceeding, or because of the exercise by such 

miner, representative of miners or applicant for employment 

on behalf of himself or others of any statutory right afforded 

by this Acto" 

883 
motion to dismiss Martin County argues (1) that the "amended" 

complaint filed with this Cpmmission on December 22, 1992, 

included issues not presented in the original complaint 

filed by Mr. DeRossett on August 10, 1992, with the Secretary 

of Labor's Mine Safety and Health Administration (MSHA} and, 

(2) that the complaint was filed untimely. 

The initial complaint filed August 10, 1992, with MSHA 

states as tollows: 

I was discharged by Martin County Coal Corp., 

MTR Surface Mine No. 1, in November 1989, for 

complaining about safety hazards. I am requesting 

reinstatement to my original job, receive backpay 

plus interest, have all benefits reinstated and 

to have all records pertaining to the discharge 

removed from my personnel file. 

The amended complaint fi-led with this Commission on 

December 22, 1992, claims, as additional violations of 

Section 105(c)(l), the following: 

* * * 

8. Complainant on numerous occasions 

made complaints to supervisory personnel about 

unsafe working conditions, which complaints 

were a substantial factor in motivating 

Defendant to move complainant to second shift 

in April, 1988 during a reduction in force, 

despite the retention on the first shift of a 

position for which Complainant was qualified 

and entitled to fillQ 

* * * 10. Complainant sought reinstatement to 

his former position on numerous occasions 

following his discharge, but Defendant refused 

to rehire him despite the recall of less senior 

individuals following the December 4, 1989u 

reduction in force. Complainant's safety 

complaints were a substantial factor in 

Defendant's decision not to rehire him. 

* * * 

Even assuming, arguendo, however, that DeRossett's 

complaint to MSHA filed August 10, 1992, did indeed 

incorporate the allegations of discrimination contained 

in the amended complaint filed with this commission on 

December 22, 1992, and even assuming that such allegations 

were investigated by MSHA, I nevertheless find that the 

884 
complaint was filed untimely and that the untimely filing 

cannot be excused. 2 

In relevant part, Section 105(c)(1) of the Act prohibits 

discrimination against, or the discharge of, a miner because 

of his exercise of any statutory right afforded by the Act. 

n. 1, supra. If a miner believes that he has been discharged 

in violation of the Act and wishes to invoke his remedies under 

the Act, he must file his initial discrimination complaint 

with the Secretary of Labor within 60 days after the alleged 

violation in accordance with Section 105(c)(2) of the Act. 3 

The Commission has held that the purpose of the 60-day time 

limit is to avoid stale claims, but that a miner's late filing 

may be excused on the basis of "justifiable circumstances." 

Hollis v. Consolidation Coal company, 6 FMSHRC 21 (1984); 

Herman v. IMCO Services, 4 FMSHRC 2135 (1982). In those 

decisions the Commission cited the Act's legislative history relevant to the 60-day time limit: · 

While this time-limit is necessary to avoid 

stale claims being brought, it should not 

be construed strictly where the filing of 

a complaint is delayed under justifiable circumstances. Circumstances which could warrant 

the extension of the time-limit would include 

a case where the miner within the 60-day period 

brings the complaint to the attention of another 

agency or to his employer, or the miner fails 

to meet the time-limit because he is mislead as 

to or misunderstands his rights under the Act. 

(citation omitted). 

2 It appears that Mr. DeRossett did in fact include 

in a statement on August 14, 1992, detailing his complaint to 

MSHA, his allegations of being transferred in April 1988 to 

the evening shift and of several undated efforts subsequent 

to his December 4 6 1989, layoff seeking reinstatement with 

Martin County. Accordingly, it would appear that he has 

complied with the administrative prerequisites. See Hatfield 

Vo Colguest Energy Inc., 13 FMSHRC 544 (1991). 

3 After investigation of the miner's complaint, the 

Secretary is required to file a discrimination complaint 

with this Commission on the miner's behalf if the Secretary 

determines that the Act was violated. If the Secretary 

determines that the Act was not violated, he shall so inform 

the miner, and the miner then may file his own complaint with 

the Commission under Section 105(c)(3) of the Act. 

885 
The Commission noted accordingly that timeliness questions 

must be resolved on a case-by-case basis, taking into account 

the unique circumstances of each situation. 

At hearings Mr. DeRossett testified that he was 

uncertain when he had requested reemployment with Martin 

County and the only documented effort in that regard appears 

in a letter dated April 24, 1990, written on Mr. DeRossett's 

behalf by Attorney Wolodymyr Cybriwsky (Respondent's Motion 

Exhibit No. 1). The only other date that can be established 

without substantial speculation was related by Mr. DeRossett 

to the June 1990 departure of an employee named Stapleton. 

Thus more than 4 years, more than 2-1/2 years, and more than 

2 years elapsed, respectively, from the April 1988 shift 

transfer, the December 4, 1989 reduction-in-force, and the 

June 1990 request for reinstatement until the instant complaint was filed with MSHA on August 10, 1992. 

In the present case Mr. DeRossett claims ignorance of 

the filing requirements. He maintains that he was first 

hired by Martin County in 1978 and that at no time during 

his 10 years employment with them was he informed of any of 

his rights under the Act. He maintains that it was not until 

he discovered a pamphlet in December 1992 entitled 11Guide to 

Miners Rights" in the office of another company did he discover 

that his purported safety complaints were protected under the 

Act and that he had a right to file a complaint with MSHA. 

Mr. DeRossett also maintains that he always knew that 

his safety complaints were a causative factor in its discharge 

but never mentioned that fact to anyone before December 1992. 

He claims that even when he first contacted the National Labor 

Relations Board (NLRB) on December 7g 1989u claiming that he 

was unlawfully discharged because of his participation in a 

strike (see Respondentus Motion Exhibit Noo 2) he believed 

that he had been discharged because of his safety complaints. 

He maintains that in spite of this he did not tell the NLRB 

attorney of this belief nor the attorney who wrote the letter 

on his behalf in April 1990 (Respondent 6 s Motion Exhibit No. 1) 

nor the attorney who later represented him in a workman°s 

compensation case against the RespondentQ 

At the motion hearings former Martin County Director of 

Training0 Troy Chafin, testified on behalf of the Respondent 

that he had been principal officer in charge of health and 

safety and had developed and conducted the mandatory and other 

training programs for Martin County. More particularly, he 

was in charge of training Martin County employees, including 

DeRossett, from April 1973 through April 1990$ He subsequently 

worked for the Kentucky Department of Mines and Minerals as 

Assistant Director of Training and Education and is currently 

president of his own company. 

886 
Chafin testified that he was well acquainted with 

Mr. DeRossett while he worked for Martin County. At 

hearing, Chafin identified certificates of training for 

DeRossett, including those Chafin signed personally 

certifying that training had been completed for DeRossett 

on the dates noted (Respondent's Motion Exhibit No. 5). It 

is clear from the certificates that DeRossett attended at 

least ~3 training sessions while at Martin County at which 

the subject of "statutory rights of miners" was covered. 

Chafin also testified that he personally taught 

training classes for those sessions fqr which his signature 

appears on the certificate but that in all of the training 

sessions he presented opening comments to the miners, 

including a review of their rights to make complaints to 

management and to MSHA free of retaliation. More specifically, 

he testified that miners' rights under Section 105(c) were 

discussed at some of the sessions. I find Chafin's testimony 

credible. 

Mr. DeRossett is a high school graduate and, from his 

appearance and testimony at hearing, it is readily apparent 

that he is a man of ample intelligence. He has demonstrated 

the ability to pursue sophisticated complaints regarding 

his employment with other governmental agencies and has 

conferred with at least three attorneys regarding employment 

matters. Under all of the circumstances it may reasonably 

be inferred that Mr. DeRossett received sufficient information during his period of employment with Martin County 

from which he knew, or should have known, of his right to 

file complaints with MSHA under Section 105(c) of the Act 

for retaliation against him for making safety complaints. 

Under the circumstances I conclude that DeRossett 

knew or certainly should have known of his rights to file 

a complaint with MSHA under ~ection 105(c) at the time of 

his April 1988 shift transfer and also at the time of his 

December 1989 layoff and his last established request for 

reinstatement in June 1990 0 and that therefore his late 

filed complaint herein cannot be excused for "justifiable 

circumstances e 9

' Accordingly, the complaint herein must be 

dismissedo 

887 
ORDER 

Discrimination proceeding Docket No. KENT 92-203-D is 

hereby dismissed. 

' 

G ry MeJi 

Admini~ftrati ve 

703-75 -6261 

Distribution: £/ 

Johann F. Kerlotz, Esq., Piper, We1~man and 

200 North Upper Street, Lexington,jKY 40507 

Judge 

Bowers, ' 

{Certified Mail) 

Charles E. Shivel, Jr., Esq., Diana M. Carlton, Esq., 

Stoll, Keenon and Park, 201 East Main street, Suite 1000, 

Lexington, KY 40507-1380 (Certified Mail) 

/lh 

888 
FEDBIU\L JUliE SAFETY ABD HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 121993 

ELMER DARRELL BURGAN, . . DISCRIMINATION 

Complainant . . Docket No. KENT 

v. . . BARB-CD-92-31 

HARLAN CUMBERLAND COAL CO., . 

. Harlan Mine 

Respondent . ~ 

PROCEEDINGS 

92-915-D 

ELMER DARRELL BURGAN, 

Complainant 

Docket No. KENT 93-101-D 

v. No. 1 Mine 

DIXIE FUEL COMPANY, 

Respondent 

. . 

Appearances: 

DECISION 

Phyllis Robinson, Esq., Hyden, Kentucky, 

for the Complainant 

H. Kent Hendrickson, Esq., Harlan, 

Kentucky, for the Respondents. 

Before: Judge Feldman 

These cases are before me based upon discrimination 

complaints filed pursuant to Section 105(c) (3) of the Federal 

Mine Safety and Health Act of 1977 0 30 u.s.c. §815(c)(3) (the 

Act) by complainant Elmer Darrell Burgan (Burgan) against 

corporate respondents Harlan CUmberland Coal Company (Harlan) and 

Dixie Fuel Company (Dixie). 1 Clyde Bennett is the general 

manager of the respondents which are closed family corporations. 

BennettGs children are the corporate officers of these 

~ Burganws complaints which serve as the jurisdictional 

basis for this matter were filed with the Secretary in accordance 

with Section 105(c)(2) of the Act, 30 u.s.c. §815(c)(2). 

Burganvs complaints were investigated by the Mine Safety and 

Health Administration (MSHA) which concluded that there were no 

Section 105(c) violations with respect to Burgan's employment at 

Harlan CUmberland Coal Company or Dixie Fuel Company. Burgan 

subsequently filed complaints with this Commission which are the 

subject of this proceeding. 

889 
corporations. These cases were consolidated for hearing at the 

complainant's request by order dated January 6, 1993. The cases 

were heard in Richmond, Kentucky on March 9 and March 10, 1993. 

For the reasons discussed herein, Burgan's discrimination 

complaints against the corporate respondents are dismissed. 

At trial, the parties stipulated that Harlan and Dixie are 

coal companies engaged in interstate commerce. Therefore, the 

parties agree that I have jurisdiction to hear these matters. 

The parties also stipulated to Burgan's employment history. The 

complainant's direct case consisted of his testimony as well as 

the testimony of six other individuals, including the 

complainant's brother, Robert Burgan, who was the Superintendent 

at Harlan. In defense of the charges filed by Burgan, the 

respondents provided the testimony of Clyde Bennett and two 

employees of Harlan and one individual employed by Dixie. The 

parties filed simultaneous proposed findings and conclusions 

which were received in my office on April 26 and April 27, 1993. ~ .•. 

Burqan•s Section 105(c) Complaints 

The gravamen of Burgan's complaint against Harlan is that 

his three day suspension and subsequent transfer from Harlan's H2 

Mine to its D3 and C3 Mines following a January 14, 1992, 

altercation with his brother Allen was, in fact, discriminatorily 

motivated because of Burgan's safety related complaints. 

Specifically, Burgan asserts that he complained about H2 Mine 

Foreman Matthew Coots• intentional blocking of shuttle car 

breakers which interfered with Burgan's short circuit protection 

during his shuttle car operation. Burgan contends that Coots' 

blocking of these breakers exposed him to electric shock and 

potential electrocutiono Burgan alleges that his discriminatory 

suspension and transfer ultimately resulted in his unemployment 

when the C3 Mine was closed until Burgan was called back to work 

to open Dixie 9 s No. 1 Mine9 With respect to Dixie, Burgan argues 

that Clyde Bennett's June 11, 1992, denial of his request to 

transfer from the Dixie No. 1 Mine back to the H2 Mine, because 

the H2 mine was closer to Burgan's home, was also motivated by 

discrimination because of his past safety complaintso 2 

2 The complainantis theory of the case regarding Dixie is 

not well focused. For example, Burgan initially argued that he 

was afraid to return to the Dixie No. 1 Mine on June 10, 1992, 

because he believed the mine was unsafe after a smoke incident 

caused by a conveyor belt stoppage on June 4, 1992. (See Verified 

Complaint, Kent 93-101-D, Para. 9; Tr. 27, 81, 86, 89, 911 96, 

102-103). However, late in the first day of the trial counsel 

conceded that the evidence reflected that this belt condition was 

abated the next day and that Burgan did not experience any 

reoccurrence of smoke related problems when he returned to work 

at the Dixie No.1 Mine on June 8, 1992. (See Tr. 288-292). 

890 
Respondents• Defense 

The respondent counters by denying that blocking of breakers 

occurred and by denying that Burgan ever communicated any safety 

related complaints. In addition, the respondent maintains that 

Burgan's three day suspension and transfer were motivated solely 

by its desire to separate Burgan from his brother Allen Burgan 

after a serious altercation. The respondent states that Burgan's 

subsequent temporary layoff from March 14 through June 3, 1992, 

occurred because the 03 and C3 Mines were closed because they 

were not profitable. In this regard, the respondent contends 

that Burgan was laid off along with the rest of the crew that was 

assigned to these mines. Finally, the respondent asserts that 

Burgan quit his job at the Dixie No. 1 Mine in cawood, located 

approximately 30 miles from Burgan's home, on June 11, 1992, 

after Clyde Bennett told him that he did not have any work for 

him at the H2 mine in Louellen, Kentucky. 

PRELl:Ml:NARY.FiND!NGS OF FACT 

The fundamental facts are not in dispute. Burgan resides in 

Closplint which is located within a few miles of Louellan, 

Kentucky. He has been employed by coal mines operated by Clyde 

Bennett since 1979. From 1979 until March of 1982, he was 

employed at the Dixie mine at Cawood, in Harlan County, Kentucky 

which is, as noted above, located approximately 30 miles from his 

home in Closplint. From March 1983 until January 14, 1992, he 

was employed at several Harlan mines located in Louellan, in 

close proximity to his home in Closplint. During this period, 

the complainant and his brother Allen Burgan worked together at 

Harlan's H2 Mine for approximately four years. Burgan's other 

hrotheru Robert Burgan0 was the Superintendent of the H2 Mine 

since the latter part of 1987 until he terminated his employment 

on January 1u 1992, because of a reported back condition. During 

the period that the three Burgan brothers were employed by 

Harlan, Matthew Coots was the Foreman at the H2 Mine. Coots 

reported directly to Robert Burgan who in turn reported to Clyde 

Bennette 

fno 2 {continued) 

Counsel thereupon modified the alleged discriminatory action 

associated with Burgan's Dixie employment to Clyde Bennett•s 

refusal to transfer Burgan to the H2 Mine closer to Burgan's 

home. (Tro 275)e In support of this new approach, Counsel now 

argues that Burgan needed to work close to home because of car 

problems and because Burgan's driver's license had been revoked 

for driving under the influence (DUI). (See Tr. 272-276). I am 

not unmindful of the contradiction associated with Burgan's car 

problems at a time when he had no driver's license. 

Nevertheless, it is the theory advanced on behalf of the 

complainant. 

891 
on January 14, 1992, the complainant had an altercation with 

his brother Allen Burgan after Allen backed a continuous miner 

into a bolting machine located behind a curtain where the 

complainant and James Skidmore were eating. An argument ensued 

during which there was cursing. During the argument the 

complainant grabbed a piece of roof bolting steel and drew it 

back and threatened to hit Allen. Allen walked away and no blows 

were exchanged. (Tr.375-376). As a result of this incident, the 

complainant was suspended without pay from Wednesday, January 15, 

through Friday, January 17, 1992. On Monday, January 20, 1992, 

the complainant was transferred to Harlan's D3 Mine in Louellan 

until it was closed on January 24, 1992. Burgan was then 

transferred to Harlan's C3 Mine at Louellan on January 25, 1992. 

His employment continued until March 13, 1992, when the C3 Mine 

was closed. Burgan was laid off and collecting unemployment 

insurance from March 14, 1992 through June 2, 1992. 

On June 3, 1992, Burgan was called back to work at the Dixie 

Fuel Company No. 1 Mine in Cawood, Kentucky. Burgan worked at 

the Dixie No. 1 Mine on Wednesday, June 3rd, and Thursday, June 

4th. At the end of the June 4th shift, at approximately 

4:00p.m., there was an incident wherein the belt slipped off the 

head drive. The roller continued to turn against the stationary 

belt scorching the belt causing smoke. Employee Elvis Saylor 

shut the belt down immediately. Burgan and three other mine 

personnel in the belt entry traveled through a door from the belt 

entry into a fresh air course to escape the smoke. Shortly 

thereafter, Foreman Ron Osborne received a call from the surface 

informing him that Burgan's wife was enroute to the hospital to 

deliver a baby. Osborne informed Burgan that he could take 

Friday, June 5th off in view of his wife's childbirth. 

Burgan returned to work at the Dixie No. 1 Mine on the 

morning of Monday, June Sths He also worked the following day on 

June 9tho On Wednesdayu June 10th, he telephoned Clyde Bennett 

and stated that he could not come to work because his car broke 

down. On Thursday, June 11th, he called Bennett and stated that 

his car was still inoperable. Bennett inquired why it was taking 

so long to fix his cars 3 Burgan asked Bennett for a transfer 

back to the H2 Mine in Louellan which was nearer to his home. 

3 Bennett testified that Burgan told him that his car needed 

its tie rod ends replaced. Bennett called several local auto 

supply stores and determined that the parts were readily 

available. Bennett estimated that it would take approximately 

30 minutes to repair the vehicle. (Tr. 352). 

892 
Bennett replied that he did not need him at the H2 Mine. The 

respondent then told Bennett that he quit. He also told Bennett 

that the Dixie No. 1 Mine was unsafe. 4 

FURTHER FINDINGS AND CONCLUSIONS 

Applicable case Law 

In order to establish a prima facie case of discrimination 

under Section 105(c) of the Act, a complaining miner bears the 

burden of establishing (1) that he engaged in protected activity and (2) that the adverse action complained of was motivated in 

any part by that activity., Secretary on behalf of Pasula v. 

Consolidation Coal co., 2 FMSHRC 2768 (1980), rev'd on other 

grounds sub nom., Consolidation Coal Company v. Marshall, 663 

F.2d 1211 (3rd eire 1981); Secretary on behalf of Robinette v. 

United Castle Coal Company, 3 FMSHRC 803 (1981); Secretary on 

behalf of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 

(1984); Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 

FMSHRC 2508 (November 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F. 2d 86 (D.C. Cir. 1983). 

The operator may rebut the prima facie case by showing that 

either no protected activity occurred, or, that the adverse 

action was in no way motivated by the protected activity. Robinette, 3 FMSHRC at 810 n.20. 

If the operator fails to rebut the complaint, it may 

nevertheless affirmatively defend against the prima facie case by 

proving that it was also motivated by unprotected activity and 

that it would have taken the adverse action in any event for the 

unprotected activity alone9 See also Donovan v. Stafford 

4 Bennettes account of these telephone conversations is 

consistent with Burgan 8 s testimony during his unemployment case 

wherein he told the hearing officer, "Yeah, [I quit], I told 

[Bennett], I said if you have anywhere else for me to work where 

I can get to work close to home OQO [Bennett] could have put me 

up there if he wanted to~"., " 60 {Joint Exa 1 5 ppo 26-27) o Burgan's unemployment testimony is also consistent with his testimony in 

this proceeding where he testified that Bennett never told him 

that he was fired from the Dixie minee (Tro 146-147, 363)o 

Burgan also opined that the Dixie mine was unsafe during a 

telephone conversation on June 11th. Bennett states that this 

statement was made during a subsequent telephone call on June 

11th approximately one hour after Burgan told Bennett that he 

quit. Burgan cannot recall whether he made a second telephone 

call. (Tr. 146). However, resolution of whether a second 

telephone call was made by Burgan is not dispositive, 

particularly in view of the complainant's abandonment of the 

unsafe theory. (See fn. 2 supra; Tr. 333-336). 

893 
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. 

FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically 

approving the Commission's Pasula-Robinette test). 

The complaint Against Harlan Cumberland Coal company 

The Complainant•s Direct case 

As a threshold matter, in order to determine if Burgan 

engaged in a protected activity, it is first necessary to 

identify the alleged conduct which serves as the basis for the 

complaint. In this case, Burgan maintains that Foreman Matthew 

Coots who was under the direct supervision of Burgan's brother, 

Superintendent Robert Burgan, engaged in a course of conduct, 

i.e., blocking in breakers, presumably with the knowledge and 

acquiescence of electrician Wendell Griffin. It is alleged that 

this conduct negated the circuit breaker protection and exposed 

shuttle car operators, such as Burgan, to electric shock and 

possible electrocution. These are serious charges which, if 

established, would subject the offending individuals to personal 

liability for civil penalties under Section 110(c) of the Mine 

Act, 30 u.s.c. §820(c). 5 

In support of his complaint, Burgan relies on the testimony 

of Gary Lee Couch who replaced Burgan as a shuttle car operator 

at the H2 Mine when Burgan was transferred to the 03 Mine on 

January 20, 1992. (Tr.172). Couch continued to work at the H2 

Mine until April 8, 1992, when he reportedly sustained a job 

related back injury. Bennett subsequently rehired Couch for 

light duty work as a night watchman. Couch performed these 

duties for approximately six weeks until he was fired for 

::;:epeat.edly sleeping o:n the job. (Trol84-185 17 350), Couch is a. 

itigant i:n his workman•s compensation case against the Harlan 

Cumberland Coal Companyo (Trol86)o 

Couch testified that Coots blocked breakers and instructed 

Couch how to do itv Thereafter, Couch stated that he blocked 

breakers at Coots" requesto (Trol74-175 0 178 6 188)~ Couch 

testified that subjected himself to electric shock as a result 

of blocking breakerse (Tr.l75)o Couch described an awkward 

maneuver by which he entered the shuttle car so as to avoid 

electric shocl(o Couch described this shuttle car entry procedure 

as follows~ 

5 Section llO(c) of the Mine Act provides that whenever a 

corporate operator violates a mandatory safety standard, any 

agent of such corporation who knowingly authorized, ordered or 

carried out such violation, shall be subject to the same civil 

and criminal penalties that can be imposed upon the operator 

under the Act. 

894 
Well, after a while you kind of learned how to get in 

and off the car without getting shocked. You jumped 

with both feet at one time to get off or you jump on 

all at one time. If you're touching the ground when 

you lay your hand on the car you got shocked if it was 

hot (Tr.l75). 

Couch reportedly was so concerned about his personal safety 

that he told a friend to tell his wife about the breakers if 

"something stupid [happened] that got [him] killed." (Tr.l76-

178). Despite the fact that Couch testified that he feared for 

his life, he never reported the breaker problem to Bennett or the 

Mine Safety and Health Administration (MSHA). 6 (Tr.186, 192). 

Burgan also called James Edward Skidmore who was a fellow 

employee at the H2 Mine. Skidmore witnessed the January 14, 

1992, altercation between Burgan and his brother Allen. 

Skidmoreus recollection of the incident is consistent with Coots' 

testimony that Burgan threat~ned to hit Allen with a piece of 

roof bolting steel. (Tr.215-216, 376). Skidmore· testified that 

neither Burgan nor Couch ever told him about blocked shuttle car 

breakers. (Tr.211-212). He stated that he never observed anyone 

routinely 91 jumping out of a shuttle car in a funny way so as to 

avoid shock or injury" (Tr.217). Although he is a roof bolt 

operator and does not use a shuttle car frequently, he stated 

that he had no fear or reluctance to ride in the H2 shuttle cars. 

(Tr.217),. 

Finally, the complainant called his brother Robert Burgan 

who was Superintendent at the H2 Mine and directly in charge of 

Cootso Robert Burgan last worked for the respondent Harlan 

CUmberland Coal Company on January 7u 1992Q because of a job 

related back injuryc He receiving workman~s compensation 

which still pending final litigation. (Tr.306 0 309)o Robert 

Burgan testified that the complainant told him that Coots was 

@ The respondent Harlan Cumberland Coal Company stipulated 

that anonymous complaints about blocked breakers were apparently 

communicated to MSHA in April 1992. (Tr. J72)o As a result of 

these complaints 6 on April 24 0 1992 0 MSHA inspected the H2 Mine. 

This inspection resulted in several citations. The record was 

kept open for entry copies these citations into the record 

after trialo (Resp. 3). The MSHA inspection did not 

substantiate the complaints. (Tr. 369-372 0 422). The failure of 

the Secretary to confirm the alleged misconduct accounts for the 

Secretary 1 s disinclination to prosecute the subject complaints on 

behalf of Burgan. Moreover, these unsubstantiated complaints to 

MSHA lodged several months after Burgan•s January 1992 transfer 

from the H2 Mine and contemporaneous with his April 30, 1992, 

discrimination complaint are self-serving and do not establish 

the protected activity alleged by Burgan. (See Comp. Ex 1). 

895 
blocking breakers and that he had a meeting with Coots and H2 

electrician Wendell Griffin in November or December 1991 at which 

time they denied that blocking of breakers occurred. (Tr.300-

302). In their testimony, Coots and Griffin deny that this 

meeting ever occurred. (Tr.382, 414). Significantly, Robert 

Burgan's testimony indicates that he could not confirm the 

complaints about blocking breakers in that he never fired or 

otherwise disciplined anyone for this activity. In fact, 

Robert Burgan testified that, "I never had proof" that Coots or 

anyone else was engaged in blocking breakers. (Tr.309). This 

accounts for Robert Burgan's failure to report this matter to his 

immediate boss, Clyde Bennett. (Tr.262). 

With respect to the altercation, Robert Burgan testified 

that suspension, termination, or separation of employees who 

engage in fighting are appropriate sanctionso (Tr.311-312,315). 

He also testified that personnel actions should be based upon 

seniority. (Tr.315-316). Although Robert Burgan questioned the 

transfer of the complainant, it was consistent with seniority 

considerations in that Allen Burgan had 16 to 18 years experience 

which gave him more seniority than the complainant. (Tr.316). 

The Respondent•s Direct case 

The respondent called Coots who unequivocally denied the 

allegations of the complainant. In this regard, Coots stated 

that he never had a meeting about blocked breakers with 

Robert Burgan. He also testified that he did not know how to 

block in a breaker. (Tr.395). Coots conceded that supervision of 

the complainant was difficult because he (Coots) was supervised 

by the complainant's brother. Coots stated that the complainant 

would always run to Robert Burgan whenever he was told to do 

something he didn 9 t like to do. (Tr.378-379)o Coots described 

the altercation between the complainant and Allen Burgan. 

{Tro384). After this incident Coots recommended to Bennett that 

the complainant and Allen Burgan be separated. (Tr.389). 

Electrician Wendell Griffin also denied any pertinent 

meetings or discussions with Robert Burgan. (Tr.414~421). 

Griffin testified that he never blocked in breakers. He also 

testified that neither Coots nor Couch knew how to block in a 

breaker. (Tr.423-424). Griffin denied receiving any pertinent 

complaints from the complainant or Couch. (Tr.413). 

Finally, Clyde Bennett testified that after talking to Coots 

about the January 146 1992, fight between the Burgan brothers, he 

decided to transfer Burgan to the DJ Mine. The transfer was 

motivated solely by Burgan•s fight (Tr.278). Bennett explained 

his decision as follows: 

896 
It was based on fighting in the mine. That's against 

the law, you know, it's very dangerous and I just won't 

have that in our mines and I made the decision to give 

him three days off and transfer him to another mine. 

If I'd made any other decision it would have been to 

fire him right then. I thought I give him a break 

(sic) • (Tr. 293) • 

Bennett suspended Burgan for the three workdays following 

the fight and transferred him to the D3 Mine on Monday, 

January 20, 1992. The 03 Mine was closed on January 24, 1992, 

when the entire crew, including Burgan, was transferred to the 

C3 Mine. (Tr.279). The C3 Mine was closed on March 14, 1992, 

because the sulphur content in the coal was too high to satisfy 

the respondent's existing orders. (Tr.279). Two individuals at 

the C3 Mine were reassigned and the eight remaining crewmen were 

laid off. (Tr.314). At trial, and, in his unemployment hearing, 

Burgan testified that Danny Cochran was given preferential 

treatment because 0 unlike Burgan, Cochran continued to pump water 

at C3 and was not laid off. (See Joint Ex. 1. pp. 26-27). 

Bennett explained that Cochran has foreman's papers which allows 

him to go into a mine alone and that Cochran was obviously better 

qualified than Burgan. (Tr.347, 364). Most of the employees laid 

off from the C3 Mine were called back to the Dixie No. 1 Mine in 

May or June 1992. 

The complaint Against Dixie Fuel company 

The complainant's Direct case 

Burgan was laid off from the CJ Mine in Louellen on 

March 14 0 1992o He was subsequently called back to work on 

June 3 0 1992 0 to open the Dixie Noo 1 Mine in Cawood, Harlan 

Countyu Kentuckyo At trial 0 the complainant presented 

considerable testimony concerning a June 4, 1992, conveyor belt 

incident that caused smoke and evacuation. Burgan testified at 

length regarding his alleged severe smoke inhalation suffered 

during this event as well as the fact that he feared returning to 

the Dixie mine although he conceded the belt problem was 

immediately remediedo fact 9 there is no evidence that Burgan 

ever received treatment for smoke inhalation or that he ever 

experienced any problems when he returned to work at Dixie on 

June 8 and June 9 0 1992o (TrG88)o Burganijs witnesses Monus Peace 

and Danny Cochran failed to support Burgan&s claim that the Dixie 

mine was unsafe. In facto Cochran rebutted Burgan's testimony 

that Cochran had requested a transfer from the Dixie mine because 

897 
he believed it to be unsafe. 7 At the hearing, Burgan's counsel 

distanced herself from the safety issue as a basis for Burgan's 

discrimination complaint. (Tr.l53-160, 272-278, 288-289, 337). 

counsel now alleges that Bennett 9 s denial of Burgan's transfer 

from Dixie to H2 was motivated by discrimination because of 

Burganws earlier safety related complaints concerning Coots. 

(Tr.275 8 277, 289). 

The Respondent•s Direct case 

The respondent called Ron Osborne, the Foreman at the Dixie 

mine who testified that he was with Burgan when they escaped from 

the smoke on June 4th by entering a fresh air course from the 

belt entry and that they were only exposed to smoke for a short 

period of time. Osborne also stated that Burgan never complained 

of smoke related injuries on that day or when he returned to work 

on June 8th. Bennett was called upon to testify regarding his 

telephone conversations wherein Burgan called on June 10 and 

stated he had car problems. In addition to his car problems, 

Burgan testified that his driver's license was revoked for DUI. 

(Tr.132-133). Bennett testified that he did not know that Burgan 

had lost his license. (Tr.270-271). Bennett recalled that Burgan 

telephoned on the following day and requested a transfer to the 

H2 Mine because it was closer to his home. Bennett told him that 

he did not need him there whereupon Burgan said he quit. Burgan 

called back an hour later and stated that he quit because the 

mine was unsafe rather than because of his car problems. 

ULTIMATE FINDINGS AND CONCLUSIONS 

As noted aboveu in order for Burgan to benefit from the 

protection afforded by Congress under Section 105(c) of the Mine 

Actu he must bear the burden of establishing that he was the 

victim of discriminatory adverse action as a result of his 

alleged protected activity~ Specifically, Burgan must show that 

he complained about Cootsg conduct concerning the blocking of 

breakers and that he had a good faith belief for such complaints. 

As Burgan~s complaints are based on his alleged personal 

1 At the hearing it was obvious that Danny Cochran suffers 

from a significant hearing impairment. (TrQ 219-220)o Burgan 

testified that Cochran told him that he requested Bennett to 

transfer him from the Dixie mine back to a Harlan mine in 

Louellen after the belt smoke incident " ••• because of (sic) he 

wasn 8 t going to be scared like that.n (Tr0 99)o However, Cochran 

denied this statement when he was called upon to testify on 

behalf of the complainant. (Tr. 226, 231). In fact, Cochran 

explained that he requested a transfer on the advice of his 

physician who recommended that Cochran avoid the damp conditions 

in the Dixie mine which could exacerbate his hearing disorder. 

(Tr. 230-231). 

898 
knowledge of Coots' behavior, his good faith belief must be 

demonstrated by proving that this unsafe activity actually 

occurred. In addition, if Burgan can establish his protected 

activity as alleged, he must also show that the adverse action 

complained of, i.e., his transfer from the H2 Mine, was in part 

influenced by his protected activity. Burgan's principal 

witnesses supporting his allegations against Coots and Griffin 

are former employee Gary Couch and Burgan's brother, former 

Superintendent Robert Burgan. 8 Their testimony should be 

evaluated in the context of whether it is credible and whether it 

is effectively rebutted by other witnesses. In addition, in 

determining the evidentiary value of their testimony, 

consideration must be given as to whether they are disinterested 

or biased. 

Couch is currently litigating a workman•s compensation claim 

filed against the Harlan Cumberland Coal Company. Moreover, it 

is uncontroverted that Couch was fired by Bennett for repeatedly 

sleeping on the job as a night watchman after he was placed on 

light duty following his reported job related back injury. Thus, 

Couch must be considered a biased witness. 

Moreover, the credibility of Couch's testimony is suspect 

notwithstanding his apparent bias. It is difficult to imagine 

Couch's assertion that he knowingly and repeatedly exposed 

himself to electric shock or electrocution by personally blocking 

shuttle car breakers. It is equally incredible that he then 

proceeded to awkwardly jump in and out of the shuttle cars so as 

to avoid injury or electrocution. It is also difficult to 

understand how he could continue to engage in such activity, 

having testified that he feared for his life to such an extent 

that he told a friend to tell his wife what he was doing in the 

event he was killed because of nsomething stupid. Go Couch 0 s 

testimony that he engaged in these activities because he was 

afraid of losing his job is also unconvincingo Finally0 Couch 1 s 

allegations were rebutted by the testimony of fellow employee 

James Skidmore, called as a witness by Burgan, as well as the 

testimony of Coots and Griffin. 

8 At trial complainant 0 s counsel also sought to call Allen 

Burgan as a corroborating witness. Counsel stated that Allen 

Burgan is no longer employed by Harlan Cumberland Coal Company 

and that she thought that he also had a workman's compensation 

case pending. (Tr. 324, 439). At the conclusion of the hearing 

counsel moved to keep the record open to depose Allen Burgan. 

The motion was denied as Allen Burgan was not served with a 

subpoena and the information sought to be introduced through his 

testimony was already adequately reflected in the record. 

(Tr. 440-441). 

899 
Burgan's alleged protected activity was also not adequately 

supported by the testimony of his brother, Robert Burgan, who 

also has a back related workman's compensation case pending 

against the respondent. In this regard, Robert Burgan testified 

that he never took any disciplinary action against anyone; that 

he could not prove that Coots was engaging in the activity 

alleged by his brother; and that he never reported his brother's 

complaints to Bennett. Simply put, if the complainant's brother, 

the superintendent on the scene, could not confirm the validity 

of Burgan's alleged complaints, I am similarly unconvinced. It 

is noteworthy that Coots and Griffin both deny ever discussing 

blocked breakers with Robert Burgan. Moreover, Robert Burgan's 

failure to report these alleged meetings to Bennett further 

supports the denials of Coots and Griffin. 

Thus, I conclude that Burgan has failed to demonstrate by a 

preponderance of the evidence that he engaged in the alleged 

protected activity. However, even if I were to find that Burgan 

did make generalized isolated safety related complaints that 

qualify as protected activity.under Section lOS(c) of the Mine 

Act, the evidence reflects that Burgan's three day suspension and 

transfer was motivated by Bennett's desire to separate Burgan 

from his brother Allen after their serious encounter. 9 In this 

regard, Robert Burgan testified that suspension, transfer and 

termination are all appropriate sanctions for fighting in an 

underground mine. In addition, Robert Burgan stated that Allen 

Burgan had more seniority than the complainant further justifying 

the transfer of the complainant rather than Allen. The immediate 

suspension and transfer after the subject altercation is further 

evidence that the adverse action complained of was not influenced 

by any other considerationso Moreover, the record does not 

reflect that Burgan received any disparate treatment in that he 

was laid off from the C3 Mine and rehired the Dixie mine with 

other individualso (Tro245-246)o 

Finally8 turning to Burgan~s complaint against the Dixie 

Fuel Company 0 it is clear that Burgan quit his job at Dixie on 

June llu 1992 0 after Bennett refused to transfer Burgan to the H2 

Mine which is closer to Burgan°s homeo olSS)o The complainant 

has not rebutted Bennettus testimony that Burgan was not needed 

at the H2 Mine. While mining is inherently dangerous, smoke 

9 Although Burgan 9 s alleged complaints concerning blocked 

breakers served as the basis for the discrimination complaints 

that are the subject of this proceeding, Burgan also testified 

about a variety of other alleged complaints. These included 

complaints about inoperable lights and poor brakes on shuttle 

cars, and unfair treatment he endured at the hands of Coots. 

(Tr9 38~45). Assuming that these complaints occurred, the 

evidence fails to demonstrate that Burgan's suspension and 

transfer were in any way motivated by such complaints. 

900 
caused by a belt slippage does not establish that a mine is 

unsafe if the condition is corrected. In' this case, the belt 

malfunction was immediately repaired and there is no evidence of 

reoccurrence. ·Under these circumstances, Burgan's assertion that 

he was afraid to go back to the Dixie No. 1 Mine because it was 

unsafe and not suitable for work is without merit. Moreover, 

this assertion is inconsistent with Burgan's own testimony and 

the testimony of his own witnesses Monus Peace and Danny Cochran. 

(Tr.154-158, 223, 226, 249-250). It is clear that Burgan's 

decision not to return to the Dixie mine was motivated by the 

commuting distance from his residence. Section 105(c) of the 

Mine Act protects a broad array of activities so as to encourage 

mine safety. However, car problems and the hardship associated 

with a driver's license revocation for driving under the 

influence (DUI) go beyond the scope of the protected activities 

contemplated by the Act. 

ORDER 

ACCORDINGLY, Elmer Darrell Burgan's Complaints against the 

Harlan Cumberland Coal Company in Docket No. KENT 92-915-D and 

the Dixie Fuel Company in Docket No. KENT 93-101-D ARE DISMISSED. 

Distribution~ 

~a:?~ -·::::-

Jerold Feldman 

Administrative Law Judge 

Kent Hendricksonu Esq. 0 Rice & Hendrickson, P.O. Drawer 980 0 

127 Woodlawn Hills, Harlan, KY 40831 {Certified Mail) 

Phyllis L. Robinson, Esq., P.O. Box 952, Hyden, KY 41749 

«Certified Mail) 

901 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lOth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 1 71993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WALLACE ENTERPRISES, INC., 

Respondent 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

. . 

: 

Docket No. LAKE 92-342 

A.C. No. 12-02090-03502 

Docket No. LAKE 92-343 

A.C. No. 12-02090-03503 

Docket No. LAKE 92-344 

A.C. No. 12-02090-03504 

: Middle Fork Mine 

DECISION 

Appearances: Rafael Alvarez, Esq., U.S. Department of Labor, 

Office of the Solicitor: u.s. Department of Labor, 

Chicago, Illinois for Petitioner; 

No Appearance for Respondent. 

Before: Judge Weisberger 

Respondent did not appear at the hearing in these cases that 

was scheduled for March 16, 1993, and Petitioner made a Motion 

for Default Decision on March 20, 1993. An Order to Show Cause 

was issued which inter alia provided as follows: 

Thereforeu it is ORDERED that within 10 days of 

this orderu Respondent shall, in writing, show cause 

why a default decision shall not be entered in these 

cases. If the Respondent does not respond to this 

order, or fails to establish why a default decision 

shall not be issued~ a decision will be issued ordering 

Respondent to pay $1,540 the full penalties proposed by 

Petitioner in these cases. 

Respondent has not responded to the order to show cause. 

Accordinqly0 the Motion for Default Decision is GRANTED. 

It is ORDERED that the judgment be issued in these cases in 

favor of Petitioner. It is further ORDERED that Respondent pay 

$1,540 the full penalties proposed by Petitioner in these cases. 

A~-e-r-~ Administrative Law Judge 

902 
Distribution: 

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

of Labor, 230 S. Dearborn Street, 8th Floor, Chicago, IL 60604 

(Certified Mail) 

Mr. Larry Wallace, President, P.O. Box 141, Rockport, IN 47635 

(Certified Mail) (Regular Mail) 

nb 

903 
I'BDBRAL liiHB SAFETY AND HEALTH RBVI.BW COHIUSSIOB 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MAY 171993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner . . Docket No. WEVA 92-798 A.C. No. 46-01968-03980 

v. 

. . 

. . Blacksville No. 2 

CONSOLIDATION COAL COMPANY, 

Respondent 

. . 

Appearances: 

SUMMARY DECISION 

Caryl L. Casderi, Esq., u.s. Department of Labor 

Office of the Solicitor, Arlington, Virginia 

for Petitioner; 

Daniel Rogers, Esq., Consolidation 

Coal Company, Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Feldman 

A hearing in this proceeding was held on November 17, 1992, 

in Morgantown, West Virginia. At trial the parties moved to 

settle one of the two citations in issue. The parties also 

sought to stay this matter with respect to remaining Citation 

No. J72075le~ This citation was issued on December 19, 1991, 

for violation of 30 CeFeR. § 70.201(d) as a result of the 

respondentvs alleged failure to correct a respirable dust 

concentration condition that exceeded the permissible respirable 

dust levels specified in the mandatory health and safety standard 

contained in 30 C.F.R. § 70.100(a). The underlying violation of 

~Citation No. 3720751 was initially issued as a 104(d)(2) 

order. It was modified to a 104(a) citation as a result of a 

MSHA health and safety conference conducted on February 12, 1992. 

At that time it was decided that the respondent's degree of 

negligence associated with this citation should be reduced from 

high to moderate. The Secretary now seeks to ignore MSHA's 

conference findings and urges me to reinstate the unwarrantable 

failure order. However, the record fails to support any reckless 

or conscious disregard on the part of the respondent. I also 

believe that, absent new and material information, it is 

inappropriate to ignore MSHA's conference findings to the 

detriment of the respondent. Therefore, as noted herein, 

Citation No. 3720751 is affirmed as modified with the significant 

904 
the Section 70.100(a) dust concentration standard was cited in 

Citation No. 3720747 which is not a subject of this proceeding. 2 

In the case at bar, the violation of Section 70.201(d) cited 

in Citation No. 3720751 allegedly occurred because the respondent 

failed to take remed'ial action by December 18, 1991, to 

ameliorate the underlying excessive dust condition that was 

identified on December 11, 1991, during the course of the 

secretarr's spot inspection program. 3 Pursuant to this 

program, the alleged excessive dust level was determined by a 

single respirable dust sample taken during one shift rather than 

the customary avera~ing of five dust samples collected on 

consecutive shifts. See Secretary's Motion for Summary 

Judgment, p.4. 

At the hearing the respondent acknowledged its 

responsibility to· timely correct the alleged excessive dust 

concentration. However, the parties noted that the significant 

and substantial issue and the.appropriate civil penalty 

2 Citation No. 3720747 is before Judge Weisberger. This 

citation involves the identical issues in Keystone Coal Mining 

Corp., 14 FMSHRC 2017 (December 1992), appeal pending. Further 

action on Citation No. 3720747 was stayed by Judge Weisberger on 

July 6, 1992, pending the outcome of the Keystone case. 

3 Section 70.201(d) requires the operator to take corrective 

action to lower the respirable dust concentration to permissible 

levels within the abatement period set forth in a citation for 

violation of Section 70.100(a). In the instant case, Citation 

Noo 3720747 set December 16, 1991, as the termination of the 

abatement period. This period was subsequently extended through 

December 18u 1991q because additional time was required for MSHA 

to weigh and evaluate the five dust samples required by Section 

70.201(d) in order to establish whether corrective action had 

been taken. 

~ The Secretaryas spot inspection program is based upon the 

proposition that a single shift sample measuring 2.5 milligrams 

per cubic meter of air (mgjm3) or higher provides the equivalent 

degree of confidence as five samples averaging over 2.0 mgjm3 

that the 2.0 mgjm3 respirable dust concentration standard in 

Section 70.100(a) is violated. 

5 Citation No. 3720747 was issued on December 11, 1991, fo~ alleged exposure to excessive respirable dust concentration by 

the non-designated occupation, 041 (Longwall Jack Setter). The 

citation was based upon the results of single samples taken the 

previous days on the December 9 afternoon shift and the December 

10 midnight shift. The results revealed dust concentrations of 

2.5 and 3.1 mgjm3, respectively. Thus, the December 9, 1991, 

sample barely satisfied the Secretary's 2.5 mgjm3 spot inspection 

905 
assessment were dependent upon the validity of the Secretary's 

single shift spot inspection procedure which was pending consideration by Judge Weisberger in Keystone Coal Mining Corp., 

supra. Consequently, the parties' motion to stay further 

consideration of Citation No. 3720751 pending the outcome of 

Keystone was granted on the record and formalized in my 

December 4, 1992, Partial Decision Approving Settlement and Stay 

Order, 14 FMSHRC 2133. 

On December 7, 1992, Judge Weisberger invalidated the 

Secretary's single shift spot inspection procedure. 6 See 

Keystone Coal Mining Corp., 14 FMSHRC at 2029. Thereafter, I 

lifted the stay and set this case for hearing. In so doing, I 

noted that the contested citation involves the respondent's 

efforts to correct an excessive respirable dust condition 

determined by a single shift sample rather than the condition 

itself. I also noted that Judge Weisberger's disposition in 

Keystone is of substantive value with regard to the issue of 

mitigating circumstances. See Order Lifting Stay and Notice of 

consolidated Hearing Proceedings, February 16, 1993. 

The February 16, 1993, notice scheduling this matter for 

hearing was followed by another request for stay by the 

Secretary. During the course of a telephone conference with the 

parties, I expressed my disinclination to grant another stay. 

However, the parties convinced me that this matter could be 

disposed of by summary decision as there are no outstanding 

unresolved issues of material fact. Therefore, the parties were 

ordered to file pertinent motions specifying the number of dust 

samples necessary to establish that a violative dust condition 

has been corrected, and whether the respondent's failure to 

correct the alleged condition from December 18 0 1991, (the 

extended termination due date in Citation No. 3720747) until 

December 19 0 199lv (when Citation No. 3720751 was issued) 

contributed to a hazard that was reasonably likely to result in 

injury or illness of a serious nature consistent with the 

Commission's Mathies testo 7 

As the respondent has stipulated to the fact of the 

occurrence of the violation, the only remaining issues are 

whether the violation was properly designated as significant and 

substantial and the appropriate penalty to be assessed. As a 

threshold matter~ the propriety of the significant and 

~ Judge Weisberger ruled that the single shift sample 

procedure was invalid because it was not implemented pursuant to 

a rulemaking proceeding. 

7 This test is set forth in Mathies Coal Co., 6 FMSHRC 1, 3-

4 (January 1984). See also Cement Division. National Gypsum Co., 

3 FMSHRC 822, 825 (April 1981). 

906 
substantial designation for Citation No. 3720751 must be viewed 

in the context of the Keystone decision and in the context of the 

provisions of Section 70.201(d), the cited mandatory safety and 

health standard in this case. While it would be inappropriate to 

relitigate the issues in Keystone which are now on appeal before 

the Commission, it is clear that the·procedural and substantive 

merits of the Secretary's single shift sample procedure are in 

doubt. 

While Judge Weisberger addressed the procedural problems 

associated with the lack of a rulemaking proceeding implementing 

the Secretary's single shift sample policy, the substantive value 

of this procedure is suspect in that Section 70.201(d) does not 

recognize a single shift sample as a valid method for 

establishing that corrective action has been taken. 8 Thus, 

Section 70.201(d) of the regulations, promulgated by the 

Secretary, undermines the reliability of the single sample 

method. Consequently, I conclude that the uncertainties 

associated with the underlying r.espirable dust standard 

violation cited in Citation No. 3720747 create mitigating 

circumstances warranting the deletion of the significant and 

substantial characterization in Citation No. 3720751. 9 

Notwithstanding the above sample method issues, the 

traditional Mathies test provides an independent basis for 

concluding that Citation No. 3720751 does not establish a 

significant and substantial violation. As previously noted, this 

citation was issued on December 19, 1991, for ·the respondent's 

failure to take corrective action by December 18, 1991. The 

Secretary's motion for summary decision, citing Secretary of 

Labor v. Halfway, Inc., 8 FMSHRC 8, 12 (1986), and, U.S. Steel 

Mining, 6 FMSHRC 1573u 1574 (July 1984)u asserts that the 

potential for serious illness or injury must be viewed in the 

context of continued mining operations. In effect, thereforeu 

the Secretary contends that there is a presumption that the 

8 Section 70.201{d) providesu in pertinent part: 

00 ooothe operator shall take corrective action to lower the 

concentration of respirable dust to within the permissible 

concentration and then sample each production shift until five 

valid respirable dust samples are taken (emphasis added)." 

9 The Secretary points out that the average of five samples 

taken from December 12 through December 16, 1991, was 2.9 mgjm3 

which confirms the single shift results. Secretary's Motion for 

Summary Judgment, p. 14. However, this after the fact 

confirmation process is not dispositive of whether there was a 

basis for the issuance of Citation No. 3720747 on December 11, 

1991. Moreover, this approach of relying on multi-sample results 

is inconsistent with the Secretary's confidence in the single 

sample procedure. 

907 
failure to timely correct a significant and substantial violation 

is itself significant and substantial. I reject this approach. 

Rather, each violation should be evaluated independently within 

the context of the statutory provisions and the Congressional 

intent of the Mine Act. In this regard, the underlying excessive 

respirable dust concentration provides the vehicle for the 

imposition of a civil penalty for a significant and substantial 

violation. Moreover, the inspector has the oftion of issuing a 

104{b) order in order to achieve compliance. 1 Therefore, a 

non-significant and substantial finding with respect to a 

citation issued for the failure to timely correct a violation, 

particularly in this case where the failure to take remedial 

action was cited shortly after the abatement period expired, does 

not undermine the Mine Act's fundamental goal of encouraging mine 

safety. Accordingly, I conclude that the respondent's failure to 

timely correct the alleged underlying violation one day after the 

time established for abatement does not constitute a significant 

and substantial violation. 

Turning to the question of the appropriate civil penalty in 

this matter, I note that the Secretary, in his motion for summary 

decision, has amended the proposed penalty from $1,155 to 

$350. 11 Significantly, a plan to correct the underlying dust 

condition was submitted to the MSHA District Manager on 

December 23, 1991. The plan was approved on the following day 

and implemented by the respondent on December 26, 1991, when 

Citation No. 3720751 was terminated. In view of the respondent's 

abatement efforts, belated as they may be, and the other 

pertinent statutory criteria in Section 110(i) 6f the Mine Act, I 

am assessing a civil penalty of $100 for the cited violation of 

Section 70.20l(d)o 

ORDER 

Consistent with this decision, summary decision in favor of 

the respondent IS GRANTED. Accordingly u the significant and 

substantial designation SHALL BE DELETED from Citation No. 3720751. 

10 In factu 104(b} Withdrawal Order No. 3720750 was issued 

in this case on December 19, 1991. Secretary's Motion for 

Summary Judgment, Ex. F. This order is also not a subject of 

this proceeding. 

11 I note, parenthetically, that this reduction in the 

proposed assessment is inconsistent with the Secretary's attempt 

to resurrect the unwarrantable failure charge in this matter. 

See fn. 1, supra. 

908 
J:T J:S ORDERED that the respondent pay a civil penalty of $100 

within 30 days of the date of this decision. Upon receipt of 

payment, this matter J:S DISMISSED. 

Distribution: 

~;(>=::::. 

Jerold Feldman 

Administrative Law Judge 

Caryl Casden, Esq., Office of the Solicitor, u.s. Department of 

Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

(Certified Mail) 

Daniel E. Rogers, Esq., Consolidation Coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

vmy 

909 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203LEESBURG ~KE 

FALLS CHURCH, VIRGINIA 22041 

MAY 191993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

KEM COAL INCORPORATED, 

Respondent 

Before: Judge Barbour 

: 

. . 

. 

0 

. . 

Docket No. KENT 92-611 

A.C. No. 15-12209-03538 

No. 2 Surface Mine 

SETTLEMENT 

statement of the Proceeding 

This proceeding concerns proposals for assessment of civil 

penalties filed by the Petitioner against the Respondent pursuant 

to Section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for 

four alleged violations of certain mandatory safety standards 

found in Part 77, Title 30, Code of Federal Regulations. The 

Respondent filed a timely answer denying the alleged violations, 

and the case was docketed for hearing on the merits. 

The parties now have decided to settle the matteru 

and they have filed a motion pursuant to Commission Rule 30, 

29 C.F.R. S 2700.30, seeking approval of the proposed settlement. 

The citations, initial assessments, and the proposed settlement 

amounts are as follows: 

30 C.JF .. R. 

Citation IS!· Date section Assessment settlement 

3216278 01/28/92 77.1000 $1300 $655 

3216179 03/10/92 77.1001 $ 595 $595 

3216041 03/11/92 77.1605(u) $ 595 $595 

3216042 03/11/92 77.410(a) $ 595 $-0-

In support of the proposed settlement disposition of this 

case, the parties have submitted information pertaining to the 

six statutory civil penalty criteria found in Section 110(i) of 

the Act, included information regarding Respondent's size, 

ability to continue in business and history of previous 

violations. 

910 
In particular, with regard to citation No. 3216278, the 

parties note that the violation was caused by "differing, but 

equally valid interpretations of the ground control plan" and 

that had the violation been regularly assessed the proposed 

penalty would have been $655. Joint Motion To Approve 

Settlement 3. With regard to Citations No. 3216179 and 3216041, 

the parties note that Respondent has agreed to pay in full the 

proposed civil penalty. Finally, with regard to Citation 

No. 3216042, the parties agree that the vehicle cited for an 

inaudible backup alarm was not the type of truck required to have 

such an alarm and that the citation should be vacated. 

CONCLUSION 

After review and consideration of the pleadings, arguments, 

and submissions in support of the motion to approve the proposed 

settlement of this case, !'find that approval of the suggested 

reduction in the penalties assessed for the subject violations is 

warranted and that the proposed.settlement disposition is 

reasonable and in the public interest. Pursuant to 29 C.F.R. 

§ 2700.30, the motion IS GRANTED, and the settlement is APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the 

settlement amounts shown above in satisfaction of the violations 

in question. Further, the Secretary IS ORDERED to vacate 

Citation No. 3216042. Payment is to be made to MSHA within 

thirty (30) days of the date of this proceeding and upon receipt 

of payment, this proceeding is DISM7SSED. 

Distribution: 

~~/.~~ David F. Barbour 

Administrative Law Judge 

(703)756-5232 

Anne To Knauff, Esq., Office of the Solicitor, u.s. Department of 

Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215 

(Certified Mail) 

Edward H. Adair, Esq., Reece, Lang & Breeding, PSC, 400 South 

Main Street, P.O. Drawer 5087, London, KY 40745-5087 (Certified 

Mail) 

/epy 

911 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 1 91993 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KEM COAL INCORPORATED, 

Respondent 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 93-59 

A.C. No. 15-10180-03532 

: No. 1 surface Mine 

. . 

. . 

DECISION APPROVING SETTLEMENT 

Before: Judge Barbour 

statement of the Proceeding· 

This proceeding concerns proposals for assessment of civil 

penalties filed by the Petitioner against the Respondent pursuant 

to Section 110(a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for 

seven alleged violations of certain mandatory safety standards 

found in Parts 71 and 77, Title 30, Code of Federal Regulations. 

The Respondent filed a timely answer denying the alleged 

violations, and the case was docketed for hearing on the merits. 

The parties now have decided to settle the matter, 

and they have filed a motion pursuant to Commission Rule 30, 

CeFoRo $ 2700.30, seeking approval of the proposed settlement. 

The citations, initial assessments, and the proposed settlement 

amounts are as follows: 

30 C.F.R. 

Citation No .. Date section Assessment settlement 

3399676 09/09/92 71.400 $ 50 $ 50 

3399677 09/09/92 77.1605(d) $362 $100 

3399678 09/09/92 77o410(c) $362 $ 50 

3399679 09/09/92 77.1605(d) $362 $100 

3399680 09/09/92 77.1605(d) $362 $-0-

3399441 09/11/92 77.1605(d) $362 $100 

3399442 09/11/92 77.410(a) $362 $100 

In support of the proposed settlement disposition of this 

case, the parties have sqbmitted information pertaining to the 

six statutory civil penalty criteria found in Section 110(i) of 

the Act, included information regarding Respondent's size, 

ability to continue in business and history of previous 

violations. 

912 
In particular, with regard to Citation No. 3399676, the 

parties noted that Respondent has agreed to pay in full the 

proposed civil penalty. 

With regard to Citation No. 3399677, the parties note that 

although the audible backup warning device and tail and brake 

lights did not work on the cited rock truck, the gravity of the 

violation was greatly mitigated by the fact that the backup 

lights worked, there was no pedestrian traffic and minimal 

vehicular traffic where the truck worked and the truck rarely 

operated at a speed in excess of 20 mph. Moreover, the parties 

agree that no injury was reasonably likely to occur because of 

the violation and that the violation was not a significant and 

substantial contribution to a mine safety hazard ("S&S" 

violation). 

With regard to Citation No. 3399678, the parties agree the 

inoperative backup alarm on the cited rock truck failed during 

the shift on which the violation was cited and that the alarm was 

scheduled to be repaired at the close of that same shift. 

Moreover, as with the previous violation, the parties agree that 

no injury was reasonably likely to occur due to the violation and 

that the violation was not S&S. 

With regard to Citation No. 3399679, the parties agree that 

although the tail and brake lights on the cited rock truck were 

not operating, the gravity of the violation was greatly mitigated 

for the reasons set forth with respect to Citation No. 3399677 

and by the additional fact that the truck was operated only 1 

shift per day during a day light shift. Moreover, the parties 

agree that no injury is reasonably likely to occur because of the 

violation and the violation not S&S. 

With regard to Citation No. 3399680, the parties note the 

violations is similar to that alleged in Citation No. 3399679 and 

that for the same reasons expressed concerning that violation the 

gravity is greatly mitigated and the violation is not S&S. 

With respect to Citation No. 3399441, the parties note that 

although the horn on the welding truck was inoperative as alleged 

the truck was not licensed for highway use and was rarely used in 

the vicinity of pedestrians. The parties therefore agree the 

gravity of the violations is greatly mitigated. Because no 

injury was reasonably likely to occur due to the violation the 

parties also agree that it was not S&S. 

Finally, with regard to citation No. 3399442, the parties 

note that although the cited truck lacked an operable backup 

alarm the gravity of the violation was greatly mitigated by the 

fact that outside rear view mirrors on both sides of the truck 

provided the driver with almost complete vision of what was 

913 
behind the truck. They also agree that no injury was reasonably 

likely to occur because of the violation and that the violation 

was not S&S. 

CONCLUSION 

After review and consideration of the pleadings, arguments, 

and submissions in support of the motion to approve the proposed 

settlement of this case, I find that approval of the suggested 

reduction in the penalties assessed for the subject violation is 

warranted and that the proposed settlement disposition is 

reasonable and in the public interest. Pursuant to 29 C.F.R. 

§ 2700.30, the motion IS GRANTED, and the settlement is APPROVED. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the 

settlement amounts shown above in satisfaction of the violations 

in question. In addition, the Petitioner IS ORDERED to modify 

citations No. 3399677, 3399678, 3399679, 3399680, 3399441 and 

3399442 by deleting their S&S designations. Payment is to be 

made to MSHA within thirty (30) days of the date of this 

proceeding and upon receipt of payment, this proceeding is 

DISMISSED. 

Distribution: 

$~,':-g~ David F. Barbour 

Administrative Law Judge 

(703)756-5232 

Anne To Knauffo Esq. 0 Office of the Solicitor, U.S. Department of 

Laboru 2002 Richard Jones Road, Suite B-201u Nashville 6 TN 37215 

(Certified Mail) 

Edward H. Adair, Esq., Reece, Lang & Breeding, PSC, 400 South 

Main Street, P.O. Drawer 5087(/ London, KY 40745-5087 (Certified 

Mail) 

jepy 

914 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE MAY 1 9 1993 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GARDEN CREEK POCAHONTAS 

COMPANY, 

Respondent 

. . 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. VA 92-188 

A.C. No. 44-04517-03693 

Mine: VP-6 

DEgiSION APPROVING SETTLEMENT 

Before: Judge Barbour 

Statement of the Proceeding 

This proceeding concerns proposals for assessment of a civil 

penalty filed by the Petitioner against the Respondent pursuant 

to Section 110(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment for 

one alleged violation of a certain mandatory safety standard 

found in Part 75, Title 30, Code of Federal Regulations. The 

Respondent filed a timely answer denying the alleged violation. 

The parties now have decided to settle the matter, and they 

have filed a motion pursuant to Commission Rule 30, C.F.R. ~ 2700.30u seeking approval of the proposed settlement. The 

citationu initial assessment 0 and the proposed settlement amount 

is as follows:: 

Citation No. 

4002121 

Date 

08/05/92 

30 C.F.R. 

Section 

75.1102 

Assessment 

$189 

settlement 

$136 

In support of the proposed settlement disposition of this 

case, the Petitioner has submitted information pertaining to the 

six statutory civil penalty criteria found in Section llO(i) of 

the Act~ included information regarding Respondent's size and 

ability to continue in business and history of previous 

violations .. 

In particular, with regard to Citation No. 4002121, 

Petitioner notes that the violation concerned the malfunctioning 

of Respondent's belt conveyor which was periodically starting 

erroneously when being idled on the sequence mode. Petitioner 

asserts that unbeknownst to the inspector, Respondent was fully 

aware of the problem and was making good faith attempts to 

correct it. Thus, Respondent's negligence was less than supposed 

915 
CONCLUSION 

After review and consideration of the pleadings, arguments, 

and submissions in support of the motion to approve the proposed 

settlement of this case, I find that approval of the suggested 

reduction in the penalty assessed for the subject violation is 

warranted and the proposed settlement disposition is reasonable 

and in the public interest. Pursuant to 29 C.F.R. S 2700.30, the 

motion IS GRANTED, and the settlement is APPROVED. 

ORDER 

Respondent IS ORDERED to pay a civil penalty in the 

settlement amount shown above in satisfaction of the violation in 

question. Payment is to be made to MSHA within thirty {30) days 

of the date of this proceeding and upon receipt of payment, this 

proceeding is DISMISSED. 

Distribution: 

g)dfac!d--. Administrative Law Judge 

{703)756-5232 

James v. Blair, Esq., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Boulevard, suite 516, 

Arlington, VA 22203 (Certified Mail) 

Marshall So Peaceu Esq. 0 201 Wo Vine StreetQ Lexington 0 KY 40507 

~Certified Mail) 

\epy 

916 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1 Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 MAY 2 5 1993 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C&B MINING COMPANY, 

Respondent 

Docket No. PENN 92-531 

A.C. No. 36-07813-03553 

No. 2 Vein Slope Mine 

DECISION 

Appearances: Anita Eve-Wright, Esq., Office of the Solicitor 

U.s. Department of .. Labor, Philadelphia, 

Pennsylvania, for the Petitioner; 

Before: 

Gary Lorenz, Representative of Operator, Shamokin, 

Pennsylvania, for the Respondent. 

Judge Barbour 

STATEMENT OF THE CASE 

In this civil penalty proceeding initiated by the Secretary 

of Labor ("Secretary"), on behalf of the Mine Safety and Health 

Administration ("MSHA"), pursuant to Sections 105(a) and 110(i) 

of the Federal Mine Safety and Health Act of 1977 ("Mine Act" or 00Acti') 11 30 U.S o C. §§ 815 (a) v 820 ( i) 11 the Secretary seeks the 

assessment of a civil penalty against C&B Mining Company ("C&B") 

for C&Bis leged violation of Section l03(a) of the Act, 30 

u.s.c. § 813(a). 1 

The Secretary asserts that on January 28, 1992, MSHA 

inspector Dennis Myers was denied entry to C&B's No. 2 Vein Slope 

Mine by Glenn Parksu the mine 1 s hoisting engineer. According to 

the Secretary, Parks was acting on the orders of Gary Lorenz, an 

owner of C&B. The Secretary asserts that because Myers was at 

the mine to conduct an inspection pursuant to Section 103{i), 

30 u.s.c. § 813(i) 11 of the Act, C&B violated section l03(a) when 

Section 103(a) authorizes MSHA inspectors to conduct frequent 

investigations and inspections of the nation's mines, to determine, among 

other things, whether an imminent danger exists and whether there is 

compliance with applicable mandatory health and safety standards promulgated 

pursuant to the Act. To accomplish these purposes MSHA is authorized "to make 

inspections of each mine in its entirety at least four times a year." 

917 
it denied him entry. 2 The Secretary proposes a civil penalty of 

one-thousand dollars ($1,000) be assessed for the alleged 

violation. 

Lorenz, on behalf of C&B, contests the proposed penalty. 

A hearing was conducted in Williamsport, Pennsylvania, at which 

Anita Eve-Wright represented the Secretary and Myers and James 

Schoffstall, Myers' supervisor, testified for the Secretary. 

Lorenz represented C&B and testified for the company. At the 

close of the hearing the parties orally summarized their 

positions. 

THE SECRETARY'S WITNESSES 

Myers stated that he first inspected the No. 2 Vein Slope 

Mine -- a small anthracite mine -- in october 1991. Tr.12. The 

inspection in October was the beginning of the regular quarterly 

inspection required by Section 103(a) of the Act. According to 

Myers, in January 1992, coal was being extracted at the mine in 

the vicinity of uncharted, abandoned workings. In order to make 

certain that C&B personnel were drilling ahead and into the coal 

they intended to mine, so as to give themselves warning if they 

were approaching the old workings, MSHA put the mine on a section 

103(i) "spot inspection" basis. Under the spot inspection 

program Myers was required to conduct unscheduled weekly 

inspections at the mine. Tr. 12-13. Myers explained that the 

inspections were needed because in the anthracite coal fields 

water or contaminated air frequently collects in old workings and 

if there is an unintended breakthrough into the old workings a 

rapid and potentially deadly inundation of water or release of 

contaminated air can occur into the active workings of the mine. 

On January 24q 1992q Myers went to the mine to conduct one 

the required weekly inspections. Myers stated that he arrived 

at approximately 8:45 a.m. He met Parker and told Parker he was 

there "for a weekly hazard inspection." Tr. 13. Myers testified 

that while he was changing his clothing to go underground, Parker 

told Myers that Lorenz had said "to run [Myers] off if [he] 

showed up. 8

' Id. In the meantime u the miners had come out of the 

mine to eat 0 and Lorenz, who was there, spoke with Myers about 

why the mine had been placed on a spot inspection schedule. 

Lorenz then left the mine, telling Myers that he had a personal 

problem at home. Id. 

2 Section 103(i) provides that if MSHA finds that there exists in a 

coal mine some "especially hazardous condition" that is not gas related, it 

shall provide a minimum of one spot inspection of all parts of the mine every five working days at irregular intervals. Section 103(a) provides the right 

of entry that allows MSHA's inspectors to accomplish this purpose. 

918 
Myers testified that after Lorenz left, Parker took a truck 

of coal to the stockpile. When he failed to return, another C&B 

employee went to find out what was wrong. Myers was told that 

the truck had developed a mechanical problem and that the mine 

would have to close at the end of the day. Myers and the miners 

left the mine. Tr. 13-14. 

After leaving, Myers stated that he went to the MSHA field 

office in Shamokin, Pennsylvania, and told his supervisor,-

Schoffstall, what had happened. Tr. 14. Schoffstall instructed 

Myers to return to the mine the next working day (Monday, 

January 27, 1992) and to again try to conduct an inspection. 

Tr. 14-15. 

Myers returned as directed. Upon arriving at the mine he 

met Lorenz and Lorenz's brother, Cal Lorenz. Tr. 15. (Myers 

stated that Cal Lorenz is the foreman at the mine.) Lorenz told 

Myers that Schoffstall had told him "to think it over about 

letting [Myers] inspect," that he had done so and that he had 

decided Myers could not inspect the mine. Id. Lorenz stated that 

"[t]he Federal could inspect but [Myers] couldn't inspect." Id. 

Myers understood Lorenz to mean that any MSHA inspector other 

than himself could conduct an inspection but that he could not. 

Also, Lorenz indicated to Myers that he did not like Myers' 

attitude. Myers asked Lorenz what was wrong with his attitude 

but Lorenz did not reply. Id. 3 Myers advised the brothers that 

he would leave so they could "think it over" but if they 

continued to refuse to let him inspect the mine he would have to 

issue to C&B a citation for "denial of entry." Tr. 16. Myers 

then telephoned Schoffstall and recounted the situation. He told 

Schoffstall that he would return the following day and would try 

to conduct the inspection. Tro l7o 

Myers came back the next morningo He met Parker at the 

hoist building and Parker reiterated that Lorenz had instructed 

him not to let Myers into the mine. Tro 18. In that case, Myers 

respondedv he would issue to C&B a citation for denying him 

entryu and that the violation was a significant and substantial 

( 01 S&saa) contribution to a mine safety or health hazard. He also 

stated he would ask that the violation be specially assessed. 4 

In addition, Myers stated that Cal Lorenz told him C&B had begun 

retreat mining and therefore spot inspections were not longer necessary. 

Tr. 16. Myers agreed that if, in fact, C&B was retreat mining, inspections 

conducted pursuant to section 103(i) no longer would have been required. 

Tr. 18. 

4 The Secretary's regulations for the determination of penalty by 

special assessment are set forth at 30 C.F.R., Part 100. Section lOO.S(d) 

provides that when a violation has been issued for a failure to permit an 

(continued ••• ) 

919 
Myers issued the citation and returned to the MSHA office 

where he discussed the situation with Schoffstall. Schoffstall 

sent Myers back to the mine and instructed MSHA inspector Paul 

Sargent to accompany him. Once back, Myers asked Parker if he 

could conduct the inspection? Parker said "no," and Myers issued 

to C&B an order of withdrawal pursuant to Section 104(b) of the 

Act, 30 U.S.C. § 814(b), for failing to abate the violation of 

section 103(a).s Myers and Sargent then met Cal Lorenz who told 

Myers that Sargent could inspect but that Myers could not. 

Tr. 19-20. 

Myers and Sargent returned to the MSHA office. Later in the 

day Lorenz came to the office and, according to Myers, confronted 

him. Myers described what happened: 

Lorenz came stalking into the office in a 

very aggressive manner, walked over to me, 

started pointing his finger and telling me I 

would not dictate tQ him • . . anymore. That 

was his property, that was his.mine, he would 

say who would go in and who wouldn't ••. He 

was putting no trespassing signs up and I was 

to be nowhere around. 

Tr. 20-21. Schoffstall intervened and called Lorenz into his 

office. After a "behind closed doors" conference, Schoffstall 

asked Myers to join them. Myers testified that he asked Lorenz 

what he had done to cause Lorenz to object to his presence at the 

mine. Myers maintained that Lorenz would not respond except to 

ask Schoffstall why C&B could not be assigned another inspector?' 

When Schoffstall explained why he could not appoint another 

inspector for the mine~ Lorenz left the office. Tro 21. 

4 ( ••• continued) 

inspector to perform an inspection or investigation, MSHA will review the 

violation to determine whether a special assessment is appropriate. 

Section 104(b) states in relevant part that if an inspector finds 

that the violation described in a citation has not been abated and that the 

operator should not be given further time to abate, the inspector shall 

promptly issue an order requiring the withdrawal of miners and prohibiting 

their reentry until the inspector determines the violation has been abated. 

During cross-examination Lorenz asked Myers if he recalled coming 

to a garage owned by Lorenz on January 26 and confronting Lorenz about an 

alleged failure of C&B to comply with a mandatory standard? Lorenz asked if 

Myers remembered pointing a finger at him and telling him in a loud voice that 

if C&B did not comply, Myers would shut down the mine? Myers responded he 

recalled coming to the garage shortly after Christmas but did not recall 

pointing a finger at Lorenz or "carrying on" and he denied that he had told 

Lorenz to fix the condition or he would "write it." Tr. 30-31. 

920 
Myers testified that the following day (January 29) Lorenz 

called Schoffstall and told him that Myers could inspect. Myers 

went to the mine and conducted the inspection. When he came out 

of the mine he discussed with Cal Lorenz and C&B's miners "the 

type of pillaring method they could use, the ventilation they 

needed and ••• safe mining practices in pillaring." Tr. 22. 

As a result of the inspection Myers determined that C&B had begun 

retreat mining and that section lOJ(i) spot inspections were no 

longer needed. Therefore, the mine was taken off a spot 

inspection schedule. Id. 

Myers testified that he found the violation to be S&S 

because without inspecting the mine MSHA could not determine if 

C&B was drilling ahead as it advanced toward the old workings. 

Without drilling there was no way to know for certain if C&B's 

mining process would cut into the old workings and whether those 

old workings contained water or contaminated air. If they did, 

he believed there was a very real danger to C&B's underground 

miners of at least permanent;.~y disabling injuries. 

Tr. 22-23, 24. 

Myers also stated he believed the denial of entry to have 

been caused by C&B's reckless disregard of the law. He noted 

that he had explained to Lorenz why he was there to inspect and 

that Lorenz, who was fully aware of the consequences of refusing 

to let him into the mine, nonetheless persisted in his refusal. 

Tr. 24. 

Schoffstall was the next witness to testify. He confirmed 

that he had first assigned Myers to inspect the mine as part of 

the regular quarterly inspection during October 1991. Tr. 41. 

In December 8 when the mine map showed the mine to be within 200 

feet of old, abandoned workings, MSHA placed the mine on a 

section l03(i) inspection program. Id. 

Schoffstall explained in detail the dangers posed by old, 

abandoned workings -- the dangers of a sudden and unexpected 

inundating or contamination. He recalled the Porter Tunnel 

disaster of 1979 when 9 miners were killed by a sudden mine flood 

and he indicated that another life had been lost similarly in the 

early 1980's. He termed the need for advance drilling "one of 

[MSHA's] top priorities" in the anthracite region. Tr 42. 

According to Schoffstall, C&B was placed on an section 103(i) 

inspection schedule "to see that the drilling program was carried 

out." Tr. 43. 

In addition, Schoffstall gave his version of the events of 

January. He confirmed that on January 24, 1992, Myers told him 

about being barred from inspecting the mine and Schoffstall told 

Myers.to go back on the 27th. Schoffstall added that on 

January 24, 1992, Lorenz had called and stated that he would 

permit another inspector to enter the mine but that he would not 

921 
allow Myers in. Tr. 44. Schoffstall testified he told Lorenz 

that he should reconsider, that a denial of entry was a very 

serious matter and that no mine operator had ever won a denial of 

entry case. ~ 

Schoffstall also stated that this was not his only 

conversation with Lorenz on the subject, that on January 27, 

1992, and after Myers had returned to the office, Lorenz again 

called Schoffstall and requested another inspector be assigned to 

the mine. Lorenz told Schoffstall that he had a verbal 

disagreement with Myers at Lorenz's garage. Schoffstall 

responded that he did not feel a change was warranted and he 

warned Lorenz again about the serious nature of a denial of 

entry. Tr. 45. 

In addition, Schoffstall testified that following the 

issuance of the order of withdrawal Lorenz came to the MSHA 

office and confronted Myers. Schoffstall described Lorenz as 

"worked up" and Schoffstall stated that after Lorenz calmed down 

he told Lorenz to go home and'·reconsider, that the quickest way 

to solve the problem was to let Myers in. Tr. 46-47. The 

following morning, Lorenz called Schoffstall and told him Myers 

could conduct the inspection. Tr. 47. 

Schoffstall testified that he went to the mine with Myers 

and accompanied him during the inspection. When Lorenz was able 

to show that the mine was not being advanced any longer, 

Schoffstall recommended to the MSHA district manager that the 

mine be taken off the section 103(i) spot inspection schedule, 

which was done. Tr. 47. 

Schoffstall stated that he had reviewed Myers' findings 

after Myers issued the citation and order and that he agreed the 

violation was S&S. He echoed Myersv concerns regarding possible 

inundation of water or contaminated air should C&B's miners have 

cut into old workings. Id., Tr. 57. He also agreed with Myers 

that the violation was due to C&B's reckless disregard of the 

requirements of the Act. Tr. 48-49a 

Under questioning by Lorenz, Schoffstall related that during 

October 1991 and January 1992, Lorenz frequently called him and 

asked that a different inspector be assigned to the mine. 

Tr. so. Schoffstall stated that he recalled Lorenz asserting 

that he "didnwt like [Myers'] attitude[,]" that he "didn't like 

the way he inspected[,]" and that Lorenz had asked for a 

different inspector "right from the first day." Id. Schoffstall 

agreed C&B had no problems with any other of MSHA's inspectors 

and he described C&B as a "very cooperative" and safe operator. 

Tr. 50-Sl. 

922 
With regard to his refusal to change inspectors, Schoffstall 

was of the opinion that MSHA could not allow an operator to 

dictate who would or would not inspect and that while there might 

be instances where he and the MSHA district manager would find 

cause to change an inspector, he did not believe there had been 

any reason to change in this instance. Tr. 53-54. 

C&B 1 S WITNESSES 

Lorenz explained that he is one of two partners who own C&B, 

the other being cynthia Lorenz, his sister-in-law. Tr. 7-8. 

Regarding his relationship with Myers, Lorenz stated that he had 

a conflict with Myers from the first time Myers was at the mine, 

but he denied that C&B was trying to dictate to MSHA who would be 

allowed to inspect the mine. Rather, he was trying to impress 

upon MSHA the fact that a change of inspectors was truly needed. 

Tr. 59-60. 

With respect to the danger to miners presented by the 

alleged violation, he indicated that when the citation and order 

were issued mining was no longer advancing. The coal had 

narrowed to a 17 inch seam and the company had only 100 feet to 

go before it reached the limit of its coal lease. For these 

reasons, the company had started retreat mining. Therefore, 

there was no hazard. Tr. 60. 

DISCUSSION AND FINDINGS 

THE VIOLATION 

The right of entry is clearly set forth in the Mine Act. 

Section 103(a) of the Act provides that "for the purpose of 

making any inspection or investigation under this [Act] " MSHA 

inspectorws "shall have a right of entry to, upon or through any 

coal o o o mine." As the Commission has noted, the right is 

broad, and while the Commission has also stated that the right is 

not without limits~ the record does not suggest, nor does C&B 

argue 0 that Myers was acting outside the bounds of statutory 

authority on January 28~ 1992 0 when he sought to inspect the 

mineo Tracy & Partners. et al., 11 FMSHRC 1457~ 1461 (August 

1989}o 

In Tracy & Partners a majority of the Commission concluded 

that while all inspections of mines under section 103 are 

conducted pursuant to the basic authority of section lOJ(a), when 

MSHA attempts to conduct a spot inspection pursuant to section 

103(i), the spot inspection must be valid in the first instance 

923 
under section 103{i) itself. 11 FMSHRC at 1464. 7 Section 103(i) 

provides for spot inspections whenever the Secretary "finds . . . that . . . (a] hazardous condition exists" other than excessive 

liberation of methane or other explosive gases or an explosion or 

ignition of methane or other gases within the previous five 

years. Here, Myers and Schoffstall testified without 

contradiction of the hazards associated with cutting into old, 

abandoned workings. Without entering the mine and inspecting, 

MSHA did not know and could not tell whether C&B's miners were 

being protected from those hazards by drilling ahead. Nor, as 

Lorenz agreed, was there any way for MSHA to know, aside from 

taking Lorenz's word, that the mine was no longer being advanced 

and that retreat mining had started. Tr.61. 

Obviously, MSHA cannot be expected to carry out its 

enforcement responsibilities by relying solely on the 

representations of those subject to the Act's mandates, if it 

could there would be no need for inspections. I therefore find 

that on January 28, 1992, MSHA properly concluded that "a 

hazardous condition exist ( edTi··· at the mine and that the spot 

inspection it sought to conduct was valid in the first instance 

under section 103{i). 

This being the case, when Myers requested entry on 

January 28, 1992, C&B was legally bound to admit him and I 

conclude that in refusing him admission C&B violated section 

103{a) as charged. 

Nor can C&B's willingness to permit entry to any inspector 

other than Myers in any sense lessen its liability. The Act 

provides that authorized representatives of the Secretary shall 

make frequent inspections and leaves enforcement in the 

Secretaryijs handso It does not provide for inspections by 

authorized representatives of the Secretary as approved by the 

operator 0 and clearly the power to designate inspectors must be 

MSHA's if the Act is to be effectively enforced. 

7 I, of course, am bound by the reasoning of the majority, but for 

another view on the statutory basis for a valid spot inspection see the 

dissent of Commissioners Backley and Lastowka. 11 FMSHRC at 1466-70. 

8 This is not to say that situations warranting the removal of an 

inspector upon the complaint of an operator may never arise. On the contrary, 

Schoffstall indicated such circumstances can exist. Tr. 53-54. Rather, it is 

simply to recognize that the final decision is first, last and always MSHA's, 

not the operator's. 

924 
858 VIOLATION 

Following the hearing I requested a written statement of 

position from the parties regarding the following question: 

can a violation of Section 103(a) of 

the Mine Act be a S&S violation? 

In requesting the statement I took note of the fact that the 

wording of Section 104(d) of the Act, 30 u.s.c. 814(d), appears 

to restrict an inspector's S&S finding to "a violation of any 

mandatory health or safety standard" (emphasis added). C&B's 

representative did not respond. However, counsel for the 

Secretary stated in part: 

[P]lease be advised that the Secretary ••• 

submits that a finding that a violation of 

Section 103(a) ••• need not be based on the 

additional finding that the violation was a 

[S&S] contribution to a mine safety hazard. 

Whereas the gravity associated with the 

violation of a mandatory safety or health 

standard is determined to be [S&S], it must 

be determined whether the gravity involved in 

a violations of Section 103(a) of the Act is 

serious. 

Letter from Anita Eve-Wright (February 1, 1993}. 

I conclude from this that the Secretary is dropping his 

allegations regarding the S&S nature of the violation at issue, 

and I will therefore order the Secretary to vacate the 

inspectoris S&S finding. 

CIVIL PIRALTY CRITERIA 

In assessing a civil penalty for the violation of section 

103(a)u I must consider the statutory civil penalty criteria 

contained in Section llO(i) of the Act. 

GRAVITY 

This was a very serious violation. The right of an 

inspector selected by MSHA to enter a mine to conduct an 

inspection or investigation is a keystone for the Act's structure 

of enforcement. As I have already observed, if an operator can 

selectively bar entry to an inspector, effective enforcement will 

be severely compromised. 

925 
It matters not for purposes of assessing the gravity of the 

violation that at the time Myers was denied permission to enter 

there was no need to drill ahead because mining was retreating. 

The violation for which C&B is charged is a denial of entry not a 

failure to practice a particular mining technique. 

NEGLI:GENCE 

Myers• and Schoffstall's testimony that Lorenz was advised 

that a refusal to admit Myers would be a violation of the Act, 

was not refuted. While Lorenz may have believed that in offering 

to accept any inspector other then Myers he was within his rights 

as an operator, he was mistaken and in ordering Myers' barred 

from the mine, Lorenz acted at his company's peril. I conclude 

that C&B was highly negligent in allowing the violation to exist. 

HISTORY OF PREVIOUS VIOLATIONS 

The company's history of previous violations is negligible 

and counsel for the Secretary stated that there is no record of 

any prior violation of section 103(a). Tr. 9. 

Myers stated that C&B employs 4 miners as well as hoist 

engineer Parks and foreman Cal Lorenz. Although he did not know 

the tonnage of anthracite coal produced annually by the company, 

he was of the opinion that C&B is a small operator, and I so 

find. Tr. 36-37. 

ABILI:TY TO CONTINUE IN BUSINESS 

The record does not contain any information regarding C&B's 

financial conditionu and Lorenz did not contend that the amount 

of any penalty assessed would adversely affect C&B's ability to 

continue in business. Therefore, I find that it will not. 

o:r:v:r:L PPALTY 

While I have found that the violation of section 103(a) was 

very serious and that C&B was highly negligent, I nonetheless 

conclude that this violation is an aberration in an otherwise 

enviable record of compliance. I particularly note Schoffstall's 

testimony that aside from the problems involving Myers, he found 

C&B to be very cooperative and I also note Schoffstall's 

affirmative response when Lorenz asked if he considered the mine 

to be very safe. Tr. 51-52. This overall positive attitude 

toward compliance is also witnessed by C&B's negligible history of previous violations. 

926 
considering these factor's, and in light of the other civil 

penalty criteria, I conclude that the one-thousand dollar 

($1,000) civil penalty proposed by the Secretary is excessive. 

Instead, I assess a civil penalty of five-hundred dollars ($500.) 

It should go without saying that any repeat violations of section 

103(a) that come before me may be subject to substantially higher 

penalties. 

In assessing a civil penalty lower than that proposed by the 

Secretary I am in no way implying criticism of Myers. From what 

appears in this record it is apparent that he is a conscientious 

inspector who with diligence and great patience attempted to 

carry out the duties required of him. 

ORDER 

citation No. 3080842 is affirmed. Within thirty (30) days 

of the date of this decision C&B IS ORDERED to pay a civil 

penalty of five-hundred dollars ($500) for the violation of 

section 103(a) found herein. In addition, the Secretary IS 

ORDERED to modify Citation No. 3080841 and Order No. 3080842 by 

deleting the s&s designations. 

Distributiong 

~~ David F. Barbour 

Administrative Law Judge 

(703) 756-5232 

Anita D. Eve-Wright, Esq., Office of the Solicitor, 

u.s. Department of Labor, 3535 Market Street, 14480-Gateway 

Building8 Philadelphia, PA 19104 (Certified Mail) 

Mro Gary Lo Lorenzv RD #2 0 Box 861, Shamokin, PA 17872 

(Certified Mail) 

\epy 

927 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR MAV 2 51993 

5203 LEESBURG PIKE 1 1 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of Paul H. Brooks, 

Complainant 

v. 

R.B.S., INCORPORATED, 

Contestant 

. . 

. . 

DISCRIMINATION PROCEEDING 

Docket No. WEVA 93-89-DM 

NE MD 92-03 

Greystone Quarry and Plant 

ORDER APPROVING SETTLEMENT 

Before: Judge Barbour 

The Secretary, on behalf of Paul H. Brooks, Complainant, has 

moved to approve settlement of this discrimination proceeding. 

The Secretary's motion fully sets forth the terms on conditions 

of the settlement, including the fact that the Secretary requests 

no civil penalty be assessed against R.B.S., Incorporated, 

Contestant, because the evidence at trial may not establish that 

the complainant adequately communicated his legitimate safety 

concerns to the contestant and thus a violation of section 105(c} 

of the Act may not have occurred. 

Obviously, the Complainant, who has signed the motion, 

believed the proposed settlement is in his best interest, and I 

conclude that it is in the public interest as well. It resolves 

allegation of discrimination as set forth in the Secretary's 

complaint and, that being the case there is no further reason for 

the parties to contest this case. 

ACCORDINGLY, the 

DISMISSEDo 

Distribution: 

settlement is APPROVED. This matter is 

Jvu/dfffJ~ David. Barbour 

Administrative Law Judge 

(703) 756-5232 

Patrick L. DePace, Esq., Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203 

{Certified Mail} 

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

Charleston, WV 25322 (Certified Mail) 

\epy 

928 
J'BDBDL J1D1B SAI'Bft UD BBAL"l'B RBVJ:BW CODTSS:IOJI 

RALEIGH R. HUNT, 

Complainant 

v. 

CANADA COAL COMPANY, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

HAY 2 6 1993 

. . 

: 

: 

. . 

DISCRIMINATION PROCEEDING 

Docket No. KENT 92-367-D 

PIKE CD 91-20 

No. 1 Prep Plant 

ORDER OF DISMISSAL 

This case involves a discrimination complaint under § 105(c) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 

801 et seg. 

The parties have moved to dismiss the case based upon a 

settlement. 

The motion is GRANTED, and this case is DISMISSED. 

Distribution~ 

~~~ 7-~t/~ William Fauver 

Administrative Law Judge 

James D. Allen, Esq., Stoll, Keenon & Park, 201 East Main Street, 

suite 1000, Lexington, KY 40507-1380 (Certified Mail) 

Tony Oppegard, Esq., Appalachian Research & Defense Fund of 

Kentucky, Inc. 0 630 Maxwelton court, Lexington, KY 40508 

(Certified Mail) 

Mr. Dean Shofner, Agent for Service of Process, canada Coal 

Company, Inc., Highway 632, Kimper, KY 41539 (Certified Mail) 

/fcca 

929 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

MAY 7 1993 

SECRETARY OF LABOR, . . CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 92-88-M 

A.C. No. 39-01378-05506 . • 

v. . . T & D Construction 

T & D CONSTRUCTION, 

Respondent 

. . 

ORDER OF DEFAULT 

Before: Judqe Morris 

Respondent failed to respond to prehearing orders issued 

November 5, 12992, and December 8, 1992. 

Further, Respondent failed to respond to an Order to Show 

Cause issued March 17, 1992. 

Consequently 0 a judgment of DEFAULT 

the Secretaryo 

Accordinglyu I enter the following: 

ORDER 

entered in favor of 

1. The two Citations herein and the proposed penalties are 

AFFIRMED. 

2. Respondent is ORDERED TO PAY to the Secretary of Labor 

the sum of $120.00 IMMEDIATELY. 

Law Judge 

930 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON. D.C. 20005 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

POWER OPERATING COMPANY, 

INCORPORATED, 

Respondent 

FEB 0 1993 

: 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 92-849 

A. C. No. 36-02713-03572 

Docket No. PENN 92-850 

A. C. No. 36-02713-03573 

Frenchtown Mine 

ORDER DENYING MOTION TO DISMISS 

ORDER DIRECTING SERVICE 

ORDER DIRECTING OPERATOR TO ANSWER 

On October 29, 1992, the Solicitor filed the penalty petitions in the above-captioned cases. On November 25, 1992, the 

operator filed identical motions to dismiss for these cases 

because the penalty petitions were not file within the prescribed 

time limits and were not properly served. On January 4, 1993, 

the Solicitor filed a motion in opposition to the operator's 

motions to dismiss. 

Commission Rule 27 requires that the Secretary file the 

penalty proposal within 45 days of the date he receives an 

operatorgs notice of contest for the proposed penalty. 29 C.F.R. 

§ 2700.27o An operator ordinarily contests the proposed penalty 

by mailing in the so called "blue card" which has been provided 

to for this purpose. And such contest is effective upon 

mailing. J.P. Burroughs, 3 FMSHRC 854 (April 1981). In these 

cases the operator's counsel filed documents entitled notice of 

contest of citation and assessment and MSHA created corresponding 

blue cards copies of which were sent to the Commission. The blue 

cards show that the Secretary received the operator's notices of 

contest on August 19 0 1992. The petitions filed at the Commission on October 29 were, therefore, 24 days late. 

The Commission has not viewed the 45 day requirement as 

jurisdictional or as a statute of limitation. Rather, the 

Commission has permitted late filing of the penalty proposal .upon 

a showing of adequate cause by the Secretary where there has been 

no showing of prejudice by the operator. Salt Lake County Road 

Department, 3 FMSHRC 1714, 1716 (July 1981). 

The Solicitor's motion in opposition represents that the 

delay occurred because the cases were not received in her office 

until October 23, 1992. The Solicitor attaches a memorandum from 

c. Bryon Don, Chief, Civil Penalty Compliance Office, Office for 

Assessments for MSHA which states that the delay in sending the 

931 
cases was due to the increase number of cases received in that 

off In Salt Lake County Road Department, supra, decided 

early in the administration of the Act, the Commission held that 

the extraordinarily high caseload and lack of personnel confronting the Secretary at that time constituted adequate cause for 

late filing. At the present juncture, I take note of the prec 

rise in the volume of contested cases over the last few 

years, as indicated by the Commission's own records. 1 I find 

these circumstances constitute adequate cause for the short delay 

in the filing of the·penalty petitions. Finally, the record does 

not indicate any prejudice to the operator from the 24 day delay. 

The operator's assertion that these penalty petitions be 

dismissed because of defective service is without merit. The 

Solicitor served copies of the petitions upon the operator's 

safety director who was identified as the individual to receive 

such service in the legal identity report filed by the operator 

with MSHA and therefore noted as such on MSHA's computer. The 

Secretary was unaware the operator had retained counsel, but the 

Solicitor represents that MSHA's computer has now been changed to 

reflect counsel as the proper recipient of service. 

courts have broad discretion on whether to dismiss an action 

because of inadequate service or require the service be made 

properly. Montalbano v. Easco Hand Tools Inc., 766 F.2d 737 (2d 

Cir. 1985); SA C. Wright & A. Miller, Wright & Miller, Federal 

Practice & Procedure, § 1354 (1990); 2A J. Moore & J. Lucas, 

Moore's Federal Practice,, 12.07[2.-4] (2d ed. 1992). As a 

general matter the action will be preserved in those cases in 

which there is a reasonable prospect that the service can be 

accomplished properly. Novak v. World Bank, 703 F.2d 1305 (D.C. 

Cir .. 1983); Wright & Miller, Federal Practice & Procedure, supra; 

Moore's Federal Practice, supra.. In this case it is clear that 

service can be made upon operator's counsel in accordance with 

MSHA's updated computero 

In light of the foregoing, the operator~s motions to dismiss 

the penalty petitions are DENIED. 

:It is ORDERED that the within 10 days of the date of this 

order the Solicitor serve operator's counsel with copies of the 

penalty petitions for these cases. 

:Lt is further ORDERED that within 40 days of the date of 

this order the operator le its answers to the penalty peti- tions. 

------

Chief 

p~ Administrative 

-

1 The number of new cases received for FY 90 was 2,029, for 

FY 91 was 2,267 and for FY 92 was 6,032. 

932 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TRIANGLE SAND ~ GRAVEL 

COMPANY, INCORPORATED, 

MAY 3 -- 1993 

. . 

. . 

. . 

. . 

: 

. . 

. . 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 92-613-M 

A. C. No. 45-01288-05509-R 

Docket No. WEST 92-614-M 

A. C. No. 45-01288-05510-R 

: Portable Plant 

ORDER DISAPPROVING SETTLEMENTS 

ORDER TO SUBMIT INFORMATION 

Before: Judge Merlin 

These cases are before me upon petitions for assessment of 

the civil penalties under section 105(d) of the Federal Mine 

Safety and Health Act of 1977. The parties have filed joint 

motions to approve settlements of the twenty-two violations 

involved in these cases. The parties seek approval of reductions 

in the following penalty amounts: 

WEST 92-613 

WEST 92-614 

$3,242 

$868 

to 

to 

$1,520 

$480 

No reasons were given to support the approximately 50% 

reductions proposed in the original assessments for each of the 

twenty-two violations. A review of the files shows that eleven 

of the twenty two violations were designated significant and 

substantial and one of these had an unwarrantable failure finding. The parties offer absolutely no reasons to support the very 

large reductions they seek~ Rather they have filed brief form 

motions which merely list the citations and give nothing more 

than bare statistics regarding the six criteria of section 110(i) 

of the Act. 30 u.s.c. § 820(i)~ The recommended settlements are 

not justified by relating the citations to any of the six criteria. I cannot approve what appears to.be nothing more than 

across the board percentage reductions for all the violations. 

The parties are reminded that the Commission and its judges 

bear a heavy responsibility in settlement cases pursuant to 

section llO(k) of the Act. 30 u.s.c. § 820(k); see, s. Rep. No. 

95-181, 95th Cong., 1st Sess. 44-45, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d 

Sess., Legislative History of the Federal Mine Safety and Health 

Act of 1977, at 632-633 (1978). It is the Commission's responsibility to determine the appropriate amount of penalty, in 

933 
accordance with the six criter~~ set forth in section 110(i) of 

the Act. Sellersburg Stone Company v. Federal Mine Safety and 

Health Review Commission, 736 F.2d 1147 (7th Cir. 1984). 

Based upon the parties' motion, I cannot conclude that the 

recommended penalty reductions are warranted. The parties must 

provide explicit reasons for the action they recommend. 

In light of the foregoing, it is ORDERED that the motions 

for approval of settlement be DENIED. 

It is further ORDERED that within 30 days of the date 

of this order the parties submit additional information to 

support their motions for settlement. Otherwise these cases 

will be assigned and set for hearing. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Robert Friel, Esq., Office of the Solicitor, U. s. Department of 

Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212 

(Certified Mail) 

Mso Marvelle Leitaq President, Triangle Sand & Gravel Co., Inc., 

P~ 0~ Box 36 17 Yakimau WA 98907 (Certified Mail) 

jgl 

934