FEBRUARY 2003 

THERE WERE NO COMMISSION DECISIONS OR ORDERS 

ADMINISTRATIVE LAW JUDGE DECISION 

02-27-2003 Lodestar Energy Inc. KENT 2000-79 Pg.57 

ADMINISTRATIVE LAW J UDGE ORDERS 

02-03-2003 CDK Contracting Company WEST 2001-348-RM Pg. 63 

02-03-2003 CDK Contracting Company WEST 2001-420-RM Pg. 71 

02-03-2003 CDK Contracting Company WEST 2001-426-RM Pg. 78 

02-06-2003 Thomas P. Dye, II v. Mineral 

Recovery Specialists WEST 2002-408-DM Pg. 83 

02-11-2003 Aggregate Industries, West C 

Recovery Specialists WEST 2002-408-DM Pg. 92 

02-14-2003 M & H Coal Company PENN 2002-176-R Pg. 95 

02-26-2003 Big Buck Asphalt CENT 2002-187-M Pg.101 

02-26-2003 Robert G. Jungers v. U.S. Borax, Inc. WEST 2002-532-DM Pg.103 

i 

FEBRUARY 2003 

No cases were filed in which Review was granted during the month of February 

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

Secretary of Labor, MSHA v. The Ohio Valley Coal Company, Docket No. LAKE 2002-61 (Judge 

Hodgdon, December 31, 2002) 

Hazel Olson v. Jacobs Ranch Coal Company, Docket No. WEST 2002-305-D (Judge Manning, 

January 14, 2003) 

ii 

ADMINISTRATIVE LAW JUDGE DEOSIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, DC 20001 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LODESTAR ENERGY INC., 

Respondent 

February 27, 2003 

CIVIL PENAL TY PROCEEDING 

Docket No. KENT 2000-79 

A.C. No. 15-14492-03802 

Mine: Baker Mine 

.DECISION ON REMAND 

This matter is before me on remand from the Commission. Lodestar Energy, Inc., 24 

FMSHRC 689 (July 2002). In its decision, the Commission affirmed my conclusion that the 

company had violated section 75.364(b)(l) of the Secretary's mandatory safety standards, 

30 C.F.R. § 75.364(b)(l), as alleged in Citation No. 7640555. Id. at 693-94. However, it 

remanded for additional fact finding and analysis whether the Respondent had adequate notice 

of the requirements of the regulation. Id. at 695. For the reasons set forth below, I find that the 

company did have adequate notice. 

Because this issue was first raised on appeal, the parties were offered the opportunity to 

present additional evidence and/or to submit briefs. In an October 31, 2002, letter, counsel for 

the Respondent stated that: "Lodestar has directed me to advise that it will not further contest this 

matter, but will abide by your ruling on remand." The Secretary declined the chance to offer 

further evidence, but did file a brief on the question. 

To briefly summerize the facts, intake air entered the Nos. 1 and 2 entries of the "K" 

longwall panel of Lodestar's Baker Mine from a common source at crosscut 10. At that crosscut, 

a Kennedy Stopping partially blocked the No. 1 entry so that while some of the air continued 

down the No. 1 entry, most of it went down the No. 2 entry. From crosscut 10 until crosscut 73, 

a distance of 6615 feet, the two entries were separated by coal pillars and permanent stoppings. 

At crosscut 74, the air from the two entries came together again. The Respondent had been 

conducting weekly examinations of the No. 2 entry, but not the No. 1 entry. MSHA cited the 

company under section 75.364(b)(l) for not examining the No. 1 entry. As noted above, the 

Commission has confirmed that the rule requires a weekly examination of both entries. 

57 
The issue now to be decided is whether "a reasonably prudent person, familiar with the 

mining industry and the protective purpose of section 75.364(b)(l), would have recognized that 

weekly examinations of the No. 1 entry were necessary to discover and remedy potential dangers 

to miners." Id. at 695; Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990). The 

Commission has held that: 

In deciding whether a party had adequate notice of regulatory 

requirements, a wide variety of factors are relevant, including the 

text of the regulation, its placement in the overall regulatory 

scheme, its regulatory history, the consistency of the agency's 

enforcement, and whether MSHA has published notices informing 

the regulated community with ascertainable certainty of its 

interpretation of the standard in question. See Island Creek Coal 

Co., 20 FMSHRC 14, 24-25 (Jan. 1998); Morton Int 'l, Inc. 18 

FMSHRC 533, 539 (Apr. 1996); see also Diamond Roofing Co. v. 

Occupational Safety and Health Review Comm., 528 F.2d 645, 649 

(5th Cir. 1976); United States v. Hoechst Celanese Corp., 128 F.3d 

216, 224 (4th Cir. 1997). 

Lodestar, 24 FMSHRC at 694-95. 

Section 75.364(b)(l) provides that: "At least every 7 days, an examination for hazardous 

conditions shall be made ... [i]n at least one entry of each intake air course, in its entirety .... " 

Section 75.301, 30 C.F.R. § 75.301, further defines "air course" as "[a]n entry or a set of entries 

separated from other entries by stoppings, ... or by solid blocks of coal or rock so that any 

mixing of air currents between each is limited to leakage." For a distance of 6615 feet the two 

entries were separated by stoppings or by solid blocks of coal so that the only mixing of air 

currents between the two was limited to leakage. However, since neither rule addresses whether 

entries with a common entry and exit can be separate air courses, the Commission concluded that 

the rules are ambiguous. Id. at 693. Nevertheless, when considering the text of the rules with 

regard to notice to Lodestar, I find that, while the use of the term "set of entries" somewhat 

confuses the issue, a reasonably prudent person would view the Nos. 1 and 2 entries as separate 

air courses. 

The second factor to be considered is the placement of the rules in the overall regulatory 

scheme. Section 75.364, 30 C.F.R. § 75.364, is entitled "Weekly examination." In it are listed a 

number of areas in a mine which have to be examined on a weekly basis. Among them are 

unsealed, worked-out areas; intake air courses; return air courses; longwall or shortwall 

travelways; each seal along return and bleeder air courses and each seal along intake air courses 

not examined under §75.360(b)(5); each escapeway; each working section not examined under§ 

75.360(b)(3); and each water pump not examined during a preshift examination. In short, almost 

every place in the mine, including worked-out areas, has to be examined once a week. I find that 

58 
the broad scope of this regulation would put a reasonably prudent person on notice that a 6615 

foot air course has to be examined once a week. 

A third factor to look at is the regulatory history of the rule. The Secretary first proposed 

a definition of "air course" in a 1988 proposed rule making. The proposed definition was that: 

"Air course" means an entry or a set of entries separated from other 

entries by stoppings, overcasts, other ventilation control devices, or 

solid blocks of coal or rock so that mixtures of air currents between 

each is limited to leakage. For purposes of the examination 

required by§ 75.364 of Subpart D, two adjacent entries or sets of 

entries with an open crosscut or crosscuts between them shall be 

considered separate air courses if the distance between open 

crosscuts is greater than 300 feet in seam heights below 48 inches 

and 600 feet in seam heights of 48 inches or above. 

53 Fed. Reg. 2382, 2413 (1988) (emphasis added). However, when the rule was finally adopted 

in 1992 it did not contain the italicized language.' 57 Fed. Reg. 20868, 20915 (1992). 

In its preamble discussion of the final rule, MSHA stated that: 

For the purposes of the examination required by§ 75.364 ofthis 

subpart, the proposal would have expanded the definition of air 

course to include two adjacent entries or sets of entries with an 

open crosscut or crosscuts between them if the distance between 

the open crosscuts is greater than 600 feet. Commenters objected 

to the proposed definition of air course, indicating that the 

definition requires air courses in the mine that are common at both 

ends to be examined separately. Also, a commenter noted that 

since they must be examined separately, each air course must be 

maintained safe for travel. The Agency has reconsidered this issue 

and the final rule does not include that part of the definition 

addressing entries which are common at both ends. 

MSHA believes that air courses that are not common 

should be examined separately and has defined air course to 

achieve this purpose. The Agency does not consider air courses 

that are common only at each end to be the same air course if the 

separation between the common openings is more than 600 feet. 

Weekly examination of all such separate air courses is necessary to 

ensure that the ventilation system of the mine is functioning 

1 It was also slightly reworded to substitute "any mixing" for "mixtures." 

59 
Id. at 20870. 

properly. Therefore, as suggested by one commenter, the final rule 

requires at least one entry of each intake air course to be traveled in 

its entirety. 

This explanation is far from a model of clarity. In the first paragraph, MSHA appears to 

be saying that it did not include the part of the proposed rule concerning air courses that are 

common at both ends, and the common ends more than 600 feet apart, because both air courses 

would have to be examined. But then it goes on to say, in the second paragraph, that air courses 

that are not common should be examined separately and that it "does not consider air courses 

that are common only at each end to be the same air course if the separation between the 

common openings is more than 600 feet." Assuming that operators actually read what is written 

in the Federal Register when trying to figure out what a rule requires, this apparently 

contradictory explanation provides confusing guidance. 

Finally, the last two factors to be considered are the consistency of the agency's 

enforcement and whether the agency has published notices informing the regulated community 

with ascertainable certainty of its interpretation of the standard in question. Tpe evidence is that 

for 17 inspections prior to the one resulting in this citation, and for at least one inspection 

subsequent to the citation, the inspector apparently did not recognize that the Nos. 1 and 2 entries 

were separate air courses. (Tr. 40.) Thus, ifthere was any consistency in MSHA's enforcement, 

it was a consistency of failing to enforce the rule.2 With regard to published notices, there is no 

evidence that MSHA has published any notices informing the mining community of its 

interpretation of the standard in question. 

While MSHA obviously could have done a better job of informing the regulated 

community of the requirements of the rule, a reasonably prudent person familiar with the mining 

industry should have known that section 75.364(b)(l) required that a 6615 foot entry, separated 

from an adjacent entry by coal pillars and permanent stoppings, so that the only mixture of air 

between the two was by leakage, be examined for hazardous conditions in its entirety. Even 

though the Commission has held that the definition of"air course" and, thus, section 

75.364(b)(l) are ambiguous, a reasonable person reading them is more likely to arrive at the 

Secretary's interpretation than the Respondent's. This is especially true when it is viewed in the 

context of the entire section which requires weekly examinations of all areas of a mine, even 

worked-out areas. Further, although MSHA's explanation of the rule in the preamble is 

confusing, it does indicate a concern that air courses with common openings over 600 feet apart 

be separately examined. 

2 On the other hand, there have been no reported cases addressing this issue since the 

rule was adopted in 1992. 

60 
Ultimately, the best reason a reasonably prudent person would know that both entries had 

to be examined comes down to a statement made by the inspector at the hearing. When asked 

where in the rules it stated that if air courses with common openings were separated for over a 

mile they both had to be examined, he replied: ''That's just common sense." (Tr. 52.) With all 

the things that can go wrong in a coal mine, common sense dictates that an entry that is 6615 feet 

long ought to be examined at least as often as worked-out areas. Accordingly, I find that 

Lodestar did have sufficient notice of the requirements of the rule. 

Order 

Therefore, Citation No. 7640555 is AFFIRMED and Lodestar Energy, Inc. is 

ORDERED TO PAY a civil penalty of$45.00 for this violation within 30 days of the date of 

this decision. 

1-~//;//~, Administrative Law Judge 

Distribution: (Certified Mail) 

Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of Labor, 

2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215 

Randall L. Hardesty, Esq., Mitchell & Hardesty, P.S.C., 

113 E. Center Street, Madisonville, KY 42431 

/hs 

61 
62 
ADM1NISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

CDK CONTRACTING COMPANY, 

Contestant 

V. 

SECRET ARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CDK CONTRACTING COMP ANY, 

Respondent 

February 3, 2003 

63 

CONTEST PROCEEDINGS 

Docket No. WEST 2001-348-RM 

CIO No. 7943017; 3/20/2001 

Docket No. WEST 2001-350-RM 

CIO No. 7943033; 4/05/2001 

Docket No. WEST 2001-422-RM 

Order No. 7935403; 4/23/01 

Docket No. WEST 2001-423-RM 

Order No. 7935404; 4/23/2001 

Docket No. WEST 2001-424-RM 

Order No. 7935406; 4/23/2001 

Docket No. WEST 2001-427-RM 

Citation No. 7935409; 4/2312001 

Docket No. WEST 2001-428-RM 

Citation No. 7942519; 4/2312001 

Docket No. WEST 2001-429-RM 

Citation No. 7943037; 4/2312001 

Mine ID 05-00037 L35 

Portland Plant/Quarry 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2002-461-M 

A.C. No. 05-00037-05506 L35 

Portland Plant & Quarry 
ORDER DENYING CDK CONTRACTING COMP ANY'S 

MOTION TO DISMISS 

CDK Contracting Company ("CDK") filed a motion to vacate the twelve citations and 

orders of withdrawal (the "citations") in these cases and to dismiss the civil penalty proceeding. 

These cases involve six section 104( a) citations, four section 104( d) orders, and two section 

104(a)/107(a) citation/orders. 1 As grounds for the motion, CDK argues that the Secretary failed 

to propose penalties for the alleged violations within a reasonable time after the termination of 

the Secretary's investigation of a fatal accident at the Portland Plant and Quarry as required by 

section 105(a) of the Mine Act. The Secretary opposes the motion. 

On February 24, 2001, a fatal accident occurred when a CDK employee fell from a 

scaffold ladder at the Portland Plant and Quarry. CDK was a construction contractor at that site. 

The Department of Labor's Mine Safety and Health Administration ("MSHA") commenced its 

investigation of the accident that day. On February 27, 2001, MSHA issued two of the section 

104( a) citations. On or about March 22, 2001, MSHA issued a section 104( a) citation and a 

section 104(a)/107(a) citation/order. MSHA issued the remaining citations at issue in these cases 

in April 2001. CDK contested eight of the twelve citations in a timely manner. MSHA issued its 

final report on the investigation of the accident on July 9, 2001. The citations were terminated by 

MSHA on various dates between February 27 and July 13, 2001. On May 17, 2002, MSHA 

issued its proposed assessment of penalty under 29 C.F.R. § 2700.25. CDK timely filed its 

contest of the proposed penalties. MSHA proposed penalties for the citations between 13 and 15 

months after they were issued and more than 10 months after it issued its final report on the 

accident. 

I. SUMMARY OF THE PARTIES' ARGUMENTS 

CDK argues that these cases must be dismissed because the Secretary failed to notify 

CDK of the proposed penalties within a reasonable time after the citations were issued, as 

required by the Mine Act. The Secretary is required "within a reasonable time after the 

termination of such inspection or investigation [to] notify the operator ... of the civil penalty to 

be assessed . ... " 30 U.S.C. § 815(a). CDK argues that notification of the proposed penalty 

amount more than 13 months after the citations were issued is not within a reasonable time under 

the Mine Act. CDK maintains that the Secretary cannot establish that this delay was reasonable. 

Although these cases involve a fatal accident, the facts are not complex and were fully known by 

the time the citations were issued. In addition, CDK argues that several of the citations at issue 

in these cases were issued during a routine inspection rather than as a consequence of the fatal 

accident. 

1 Citation No. 7943029 was vacated by MSHA on June 4, 2001, although it is still listed 

in the Secretary's petition for assessment of penalty in WEST 2002-461-M. Because this citation 

has been vacated, I have not discussed it in this order. 

64 
The Secretary maintains that the proposed penalties were issued within a reasonable time 

given the circumstances of these cases. She also argues that she demonstrated just cause for any 

delay. The Secretary states that the special assessments group ofMSHA's Office of Assessments 

was extremely busy during 2001-02. She states that this group has only four employees and two 

of these employees were unavailable during the relevant period of time. The Secretary points to 

the fact that during 2001, 2,153 "routine" special assessments were proposed, 217 "fatal/serious 

injury related" special assessments were proposed, and 204 "section 110( c )" special assessments 

were considered. In the first nine months of 2002, the numbers were 1,949, 183, and 158, 

respectively. 

The Secretary contends that the relevant time period did not begin to run until MSHA 

completed its accident investigation. She maintains that the fatality that triggered the 

investigation was extremely serious and several citations were referred for special assessment. 

She states that careful consideration of the facts and consideration of the statutory criteria 

consumed considerable time. All but one of the citations was qf a significant and substantial 

nature and they were all issued during MSHA's investigation of the fatal accident. The citations 

were in the Office of Assessments from August 6, 2001 until May 17, 2002. There was a 

backlog of cases in the office for special assessments during that time because one of the four 

assessors was on extended leave and the other was unavailable as a result of a training program. 

In addition, the Secretary states that the supervisor of the special assessments group was heavily 

involved in the development ofMSHA's standardized information system, which will 

completely replicate the records into a web-based system. 

The Secretary believes that the reasonableness of time should be analyzed by taking into 

consideration the length and circumstances of the delay, the prejudice to the opposing party by 

reason of the delay, and the circumstances compelling relief. The Secretary contends that CDK 

suffered no actual prejudice because both parties used the time to conduct discovery and prepare 

for trial. The mere potential for prejudice is insufficient. Dismissal of civil penalty proceeding~ 

because of a delay that was not prejudicial would clearly run counter to the concern for safe and 

healthful working conditions that led to the creation of the civil penalty program. The Secretary 

points to the legislative history of the Mine Act in which the Senate Committee on Human 

Resources stated that "there may be circumstances, although rare, when prompt proposal of a 

penalty may not be possible, and the Committee does not expect that the failure to propose a 

penalty with promptness shall vitiate any proposed penalty proceeding." (S. Rep. 95-181, at 34, 

reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 622 (1978)). 

In response to the Secretary's opposition, CDK states that MSHA's failure to adequately 

staff its special assessments group does not constitute adequate cause for the delay. There was 

not an unusually high number of special assessments during 2001-02 and these cases are not 

particularly complex. The Commission accepted a lengthy delay in proposing a penalty when the 

caseload of the assessments office increased exponentially. Steele Branch Mining, 18 FMSHRC 

6, 14 (Jan. 1996). There has been no showing of such an increase here. 

65 
Finally, CDK argued that the Secretary's delay actually prejudiced its ability to defend 

itself in these cases. CDK states that it is no longer operational and that it is in the process of 

winding down its corporate affairs. It has only one employee at the present time. As a 

consequence, its potential witnesses are no longer employees of CDK. In addition, those former 

employees who have knowledge of the facts are no longer in the immediate geographical vicinity 

of the Portland Plant & Quarry. These key witnesses live in such far flung places as Virginia 

Beach, Virginia; San Pablo, Colorado; Ponca City, Oklahoma; Aztec, New Mexico; Eldorado, 

Arkansas; Goldendale, Washington; Wickenburg, Arizona; and San Juan, Puerto Rico. The 

hourly employee who worked with the deceased and who is the only individual with first-hand 

knowledge of the events leading up to the accident is believed to reside in Mexico. CDK states 

that the whereabouts of other witnesses is unknown. CDK believes that it will suffer actual 

prejudice if it is unable to secure the assistance of these individuals in the preparation of its 

defense and secure their presence at the hearing. 

I permitted the Secretary to respond to CDK's reply because, for the first time, CDK 

presented argument that it suffered actual prejudice. The Secretary states that CDK's attempt to 

establish prejudice ignores or mischaracterizes several key factors in the cases. The Secretary 

states that CDK continued working at the Portland Plant & Quarry for many months after the 

citations were issued. All of the key witnesses were interviewed by MSHA and extensive 

discovery was taken, including the deposition of many potential witnesses. She states that 

witnesses frequently move away from the area of the mine. More importantly, CDK knew that it 

was working on a short-lived construction project in Colorado, yet it neither opposed the 

Secretary's motion to stay the pre-penalty contest proceedings nor filed a motion to lift the stay. 

II. ANALYSIS OF THE ISSUES 

The Commission has excused the late filing of proposed penalties based on claims of 

excessive work load, but it made clear that such claims will not receive blanket approval. Steele 

Branch, 18 FMSHRC at 14; Salt Lake County Rd. Dept., 3 FMSHRC 1714, 1717 (July 1981 ). 

The assessment in Steele Branch arose in 1991-92 when there was a dramatic increase in the 

number of penalty assessments. See Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089, 2094 

(Oct. 1993). In the present cases, the delay was in large measure caused by the fact that two of 

the four MSHA employees assigned to the special assessments office were not available for a 

significant period of time. One employee was on extended leave for an unspecified reason, the 

other was in training, and the supervisor was heavily involved in developing a new information 

system. These excuses are not nearly as compelling as the excuse offered by the Secretary in 

Steele Branch. 

The accident in these cases was serious and required an analysis of the facts by the Office 

of Assessments. Proposing penalties following a fatal accident requires a high degree of 

diligence on the part of assessment office employees and those MSHA officials who review the 

proposals. The office's staff was reduced and the supervisor's assistance was compromised by a 

major project. It is important to remember that a penalty is typically proposed within three to 

66 
nine months after a citation is issued, so the delay in these cases is not as great as it may first 

appear. In addition, the Secretary does not begin the assessment process until a citation is 

terminated and any investigation has been completed. Some of the citations in these cases were 

terminated in July 2001, when the investigation report was issued. They were all issued during 

MSHA's investigation of the accident. I find that the penalties involved in these cases were 

proposed within a reasonable time. 

I also find that the Secretary established adequate cause for any delay. I agree with Judge 

Michael Zielinski's analysis of this issue in Paiute Aggregates, Inc., 24 FMSHRC 950, 954 (Oct. 

2002). In that case, Judge Zielinski concluded that the Secretary did not establish that the entire 

14 month delay was due to factors beyond her control because she was unable to provide a weekby-week description of the events that occurred while the Office of Assessments was considering 

what penalties to propose. Id. Nevertheless, he held that it is clear that Congress intended that 

"delays in proposing penalties should not nullify penalty proceedings." Id. Paiute Aggregates 

arose under circumstances that are quite similar to the present cases. The showing necessary to 

establish adequate cause will vary depending upon the length and circumstances of the delay. 

Paiute Aggregates, Inc., 24 FMSHRC 943, 946 (Oct. 2002) (Judge Zielinski). Thus, a case 

involving an egregious delay will require greater justification to meet the adequate cause test. Id. 

Here the rather short delay was caused by the Secretary's failure to adequately staff its special 

assessment office. While this excuse may not be sufficient to justify a lengthy delay, I believe 

that it satisfies the adequate cause test in this case, given the admonition of Congress cited above, 

because the penalties were proposed only a few months later than is typical for the Office of 

Assessments. 

CDK argues that it was actually prejudiced by the delay because its witnesses moved 

away after its Colorado project was completed and the company is winding down its affairs. 

Although I agree with the Secretary that witnesses frequently move away before a hearing can be 

scheduled, the situation presented by this case is more serious because CDK's construction 

project has been completed and CDK no longer employs any of its witnesses. Although CDK 

may not have known at the time the citations were issued that the company would be going out of 

business, it knew that its construction project in Colorado would be ending and that many of its 

employee witnesses would be moving elsewhere. 

Section 105 of the Mine Act gives mine operators the right to request a hearing on the 

merits before penalties are proposed. The Commission's Procedural Rule 20 sets forth an 

operator's right to contest citations. 29 C.F.R. § 2700.20. The Commission has long held that an 

operator can contest any citation or order before a penalty is proposed by the Secretary. Energy 

Fuels Corp., 1 FMSHRC 299, 307-09 (May 1979). CDK protected its rights when it contested 

the citations in the contest proceedings set forth in the above caption. Although the Commission 

generally expects operators to wait until a penalty is proposed before requesting that the case be 

heard, it recognizes that situations will arise in which a hearing on the merits should be held 

before the Secretary proposes a penalty. If an operator files a pre-penalty notice of contest under 

Procedural Rule 20 and believes that it requires a hearing before the Secretary files her proposed 

67 
penalty assessment under Procedural Rule 25, it can file a motion with the administrative law 

judge asking that the case be set for hearing. In a companion case to Energy Fuels, the 

Commission provided some examples in which a pre-penalty hearing may be desirable. 

Although it is arguably unlikely that the operators [in these 

consolidated cases] will need a hearing before a penalty is 

proposed (the alleged violations having been abated and the 

citations containing no special findings), it might nevertheless be 

desirable for a hearing to be scheduled quickly if, for example, the 

allegedly violative conditions often recur, if continuing abatement 

efforts are expensive, or if another case is being heard on the same 

issue and early consolidation would be helpful. 

Helvetia Coal Co., 1FMSHRC321, 322 (May 1979). While the closing of a mine or the 

winding down of an operator's business is not listed as an example, it is clearly the type of case 

in which a pre-penalty hearing is desirable. 

CDK did not object to the Secretary's motion to stay the eight pre-penalty contest cases. 

CDK knew that its Colorado project was coming to an end and, at some point, also knew that 

CDK itself would be winding down its operations. Yet, CDK neither advised me of that fact nor 

asked that the stay be lifted so that a hearing could be scheduled.2 The parties engaged in 

extensive discovery during the period of the stay and depositions were taken of many of CDK's 

potential witnesses. CDK could have requested that a hearing be scheduled before its witnesses 

were terminated from employment or upon the completion of discovery. All relevant issues in 

these eight citations could have been litigated at such a hearing, including whether the alleged 

violations occurred and, if so, whether they were significant and substantial and the result of 

CDK's unwarrantable failure to comply with the safety standards. Negligence and gravity issues 

could have also been adjudicated. All elements of a citation that are subject to eyewitness 

testimony can be litigated before a penalty is proposed. At the very least, CDK could have made 

sure that the testimony of its key witnesses was preserved in deposition testimony. 

I find that any prejudice suffered by CDK as a result of the Secretary's delay in proposing 

penalties for the eight citations that it contested co~ld have been prevented if CDK had requested 

a pre-penalty hearing on the merits of the citations. By forgoing its right to request a pre-penalty 

hearing when it knew that it would be closing its operations, CDK surrendered its right to claim 

that it was prejudiced by the Secretary's delay in proposing penalties in these cases. 

CDK did not contest four of the citations at issue under Procedural Rule 20. I agree with 

CDK that the Mine Act does not "impose on operators the burden to routinely seek an expedited 

hearing prior to assessment of penalties in order to have a fair opportunity to prepare and present 

2 Counsel for CDK advised me of the status of CD K's operations in October 2002, five 

months after the Secretary proposed penalties in these cases. 

68 
its defense." (CDK Reply at 13). An operator should ordinarily be able to contest citations and 

penalties in the penalty proceeding without being concerned that it will take so long for the 

Secretary to initiate the penalty case that its defense will be compromised. Nevertheless, a 

construction contractor understands that its involvement at a mine will come to an end and that 

its employees will move on to other jobs. A contractor who is issued citations following a fatal 

accident would be well advised to directly contest the citations if it knows that its work at a mine 

will be ending within a year or two. Such citations are likely to be specially assessed by MSHA, 

an investigation will be conducted which may include a section 110( c) investigation, and 

penalties will not be proposed as quickly as they normally are by MSHA. Such proceedings 

sometimes take years to be resolved, even in the best of circumstances. Key witnesses for even a 

stable production operator are often no longer working at the mine by the time a case is heard if a 

fatal accident is involved. 

In this instance, there is no doubt that CDK will be inconvenienced by the fact that it is no 

longer operating in Colorado and is winding down its business. Its costs will be higher and some 

of the witnesses it would like to call may not be available. CDK did not state when its work at 

the Portland Plant and Quarry came to an end or when it decided to cease all operations. CDK 

may have faced some of these same obstacles if the penalties had been proposed several months 

earlier. With respect to the citations that were not contested under Procedural Rule 20, taking 

into consideration the length and circumstances of the delay, I find that CDK did not establish 

that it was significantly prejudiced by the fact that the Secretary proposed the penalties a few 

months later than they would have been if the citations were not issued during a fatality 

investigation. 

ID. ORDER 

I find that although the Secretary took several months longer to propose penalties for the 

citations than normal, the penalties were proposed within a reasonable time. In the alternative, I 

find that the Secretary demonstrated adequate cause for the delay. I also find that, by not 

requesting a pre-penalty hearing, CDK waived its right to claim prejudice with respect to the 

contested citations because it knew that it would be shutting down its operations and terminating 

its employee witnesses. Finally, I conclude, for the reasons stated above, that CDK was not 

seriously prejudiced with respect to the citations that it did not contest under Procedural Rule 20. 

Consequently, CDK Contracting Company's motion to dismiss is DENIED. 

Richard W. Manning 

Administrative Law Judge 

69 
Distribution: 

Karen L. Johnston, Esq., Jackson & Kelly,1099 181

h Street, Suite 2150, Denver, CO 80202 (Fax 

and First Class Mail) 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550, 

Denver, CO 80201-6550 (Fax and First Class Mail) 

RWM 

70 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

CDK CONTRACTING COMP ANY, 

Contestant 

v. 

SECRET ARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CDK CONTRACTING COMPANY, 

Respondent 

February 3, 2003 

CONTEST PROCEEDINGS 

Docket No. WEST 2001-420-RM 

Citation No. 7935401; 4/23/2001 

Docket No. WEST 2001-421 -RM 

Order No. 7935402; 4/23/2001 

Docket No. WEST 2001-425-RM 

Order No. 7935407; 4/23/2001 

Mine ID 05-00037 L35 

Portland Plant/Quarry 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2002-464-M 

A.C. No. 05-00037-05509 L35 

Portland Plant & Quarry 

ORDER DENYING CDK CONTRACTING COMP ANY'S 

MOTION TO DISMISS 

CDK Contracting Company ("CDK") filed a motion to vacate the citation and two orders 

of withdrawal (the "citations") in these cases and to dismiss the civil penalty proceeding. As 

grounds for the motion, CDK argues that the Secretary failed to propose penalties for the alleged 

violations within a reasonable time after the termination of the Secretary's investigation of a fatal 

accident at the Portland Plant and Quarry as required by section 105(a) of the Mine Act. The 

Secretary opposes the motion. 

On February 24, 2001, a fatal accident occurred when a CDK employee fell from a 

scaffold ladder at the Portland Plant and Quarry. CDK was a construction contractor at that site. 

The Department of Labor's Mine Safety and Health Administration ("MSHA") commenced its 

71 
investigation of the accident that day. On April 23, 2001, MSHA issued the three citations at 

issue in these cases. CDK contested the citations on May 23, 2001. MSHA issued its final 

report on the investigation of the accident on July 9, 2001. The citations were terminated on July 

13, 2001. On May 17, 2002, MSHA issued its proposed assessment of penalty under 29 C.F.R. 

§ 2700.25. CDK timely filed its contest of the proposed penalties. MSHA proposed penalties 

for the citations almost 13 months after they were issued and more than 10 months after it issued 

its final report on the accident. 

I. SUMMARY OF THE PARTIES' ARGUMENTS 

CDK argues that these cases must be dismissed because the Secretary failed to notify 

CDK of the proposed penalties within a reasonable time after the termination of the accident 

investigation, as required by the Mine Act. The Secretary is required "within a reasonable time 

after the termination of such inspection or investigation [to] notify the operator ... of the civil 

penalty to be assessed .... " 30 U.S.C. § 815(a). CDK argues that notification of the proposed 

penalty amount 13 months after the citations were issued is not within a reasonable time under 

the Mine Act. CDK maintains that the Secretary cannot establish that this delay was reasonable. 

Although these cases involve a fatal accident, the facts are not complex and were fully known by 

the time the citations were issued. 

The Secretary maintains that the proposed penalties were issued within a reasonable time 

given the circumstances of these cases. She also argues that she demonstrated just cause for any 

delay. The Secretary states that the special assessments group ofMSHA's Office of Assessments 

was extremely busy during 2001-02. She states that this group has only four employees and two 

of these employees were unavailable during the relevant period of time. The Secretary points to 

the fact that during 2001, 2,153 "routine" special assessments were proposed, 217 "fatal/serious 

injury related" special assessments were proposed, and 204 "section l lO(c)" special assessments 

were considered. In the first nine months of2002, the numbers were 1,949, 183, and 158, 

respectively. 

The Secretary contends that the relevant time period did not begin to run until MSHA 

completed its accident investigation. She maintains that the fatality that triggered the 

investigation was extremely serious and several citations were referred for special assessment. 

She states that careful consideration of the facts and consideration of the statutory criteria 

consumed considerable time. The citations were in the Office of Assessments from August 6, 

2001 until May 17, 2002. There was a backlog of cases in the office for special assessments 

during that time because one of the four assessors was on extended leave and the other was 

unavailable "due to training during much of the year 2001." (S. Opposition at 7). In addition, 

the Secretary states that the supervisor of the special assessments group was heavily involved in 

the development ofMSHA's standardized information system, which will completely replicate 

the records into a web-based system. 

72 
The Secretary believes that the reasonableness of time should be analyzed by taking into 

consideration the length and circumstances of the delay, the prejudice to the opposing party by 

reason of the delay, and the circumstances compelling relief. The Secretary contends that CDK 

suffered no actual prejudice because both parties used the time to conduct discovery and prepare 

for trial. The mere potential for prejudice is insufficient. Dismissal of civil penalty proceedings 

because of a delay that was not prejudicial would clearly run counter to the concern for safe and 

healthful working conditions that led to the creation of the civil penalty program. The Secretary 

points to the legislative history of the Mine Act in which the Senate Committee on Human 

Resources stated that "there may be circumstances, although rare, when prompt proposal of a 

penalty may not be possible, and the Committee does not expect that the failure to propose a 

penalty with promptness shall vitiate any proposed penalty proceeding." (S. Rep. 95-181, at 34, 

reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 622 (1978)). 

In response to the Secretary's opposition, CDK states that MSHA's failure to adequately 

staff its special assessments group does not constitute adequate cause for the delay. There was 

not an unusually high number of special assessments during 2001-02 and these cases are not 

particularly complex. The Commission accepted a lengthy delay in proposing a penalty when the 

caseload of the assessments office increased exponentially. Steele Branch Mining, 18 FMSHRC 

6, 14 (Jan. 1996). There has been no showing of such an increase here. 

Finally, CDK argued that the Secretary's delay actually prejudiced its ability to defend 

itself in these cases. CDK states that it is no longer operational and that it is in the process of 

winding down its corporate affairs. It has only one employee at the present time. As a 

consequence, its potential witnesses are no longer employees of CDK. In addition, those former 

employees who have knowledge of the facts are no longer in the immediate geographical vicinity 

of the Portland Plant & Quarry. These key witnesses live in such far flung places as Virginia 

Beach, Virginia; San Pablo, Colorado; Ponca City, Oklahoma; Aztec, New Mexico; Eldorado, 

Arkansas; Goldendale, Washington; Wickenburg, Arizona; and San Juan, Puerto Rico. The 

hourly employee who worked with the deceased and who is the only individual with first-hand 

knowledge of the events leading up to the accident is believed to reside in Mexico. CDK states 

that the whereabouts of other witnesses is unknown. CDK believes that it will suffer actual 

prejudice if it is unable to secure the assistance of these individuals in the preparation of its 

defense and secure their presence at the hearing. 

I permitted the Secretary to respond to CDK's reply because, for the first time, CDK 

presented argument that it suffered actual prejudice. The Secretary states that CDK's attempt to 

establish prejudice ignores or mischaracterizes several key factors in the cases. The Secretary 

states that CDK continued working at the Portland Plant & Quarry for many months after the 

citations were issu.ed. All of the key witnesses were interviewed by MSHA and extensive 

discovery was taken, including the deposition of many potential witnesses. She states th_at 

witnesses frequently move away from the area of the mine. More importantly, CDK knew that it 

73 
was working on a short-lived construction project in Colorado, yet it neither opposed the 

Secretary's motion to stay the pre-penalty contest proceedings nor filed a motion to lift the stay. 

II. ANALYSIS OF THE ISSUES 

The Commission has excused the late filing of proposed penalties based on claims of 

excessive work load, but it made clear that such claims will not receive blanket approval. Steele 

Branch, 18 FMSHRC at 14; Salt Lake County Rd. Dept., 3 FMSHRC 1714, 1717(July1981). 

The assessment in Steele Branch arose in 1991-92 when there was a dramatic increase in the 

number of penalty assessments. See Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089, 2094 

(Oct. 1993). In the present cases, the delay was in large measure caused by the fact that two of 

the four MSHA employees assigned to the special assessments office were not available for a 

significant period of time. One employee was on extended leave for an unspecified reason, the 

other was in training, and the supervisor was heavily involved in developing a new information 

system. These excuses are not nearly as compelling as the excuse offered by the Secretary in 

Steele Branch. 

The accident in these cases was serious and required an analysis of the facts by the Office 

of Assessments. Proposing penalties following a fatal accident requires a high degree of 

diligence on the part of assessment office employees and those MSHA officials who review the 

proposals. The office's staff was reduced and the supervisor's assistance was compromised by a 

major project. It is important to remember that a penalty is typically proposed within three to 

nine months after a citation is issued, so the delay in these cases is not as great as it may first 

appear. In addition, the Secretary does not begin the assessment process until a citation is 

terminated. The citations in these cases were terminated in July 2001, three months after they 

were issued. I find that the penalties involved in these cases were proposed within a reasonable 

time. 

I also find that the Secretary established adequate cause for any delay. I agree with Judge 

Michael Zielinski's analysis of this issue in Paiute Aggregates, Inc., 24 FMSHRC 950, 954 (Oct. 

2002). In that case, Judge Zielinski concluded that the Secretary did not establish that the entire 

14 month delay was due to factors beyond her control because she was unable to provide a weekby-week description of the events that occurred while the Office of Assessments was considering 

what penalties to propose. Id. Nevertheless, he held that it is clear that Congress intended that 

"delays in proposing penalties should not nullify penalty proceedings." Id. Paiute Aggregates 

arose under circumstances that are quite similar to the present cases. The showing necessary to 

establish adequate cause will vary depending upon the length and circumstances of the delay. 

Paiute Aggregates, Inc., 24 FMSHRC 943, 946 (Oct. 2002) (Judge Zielinski). Thus, a case 

involving an egregious delay will require greater justification to meet the adequate cause test. Id. 

Here the rather short delay was caused by the Secretary's failure to adequately staff its special 

assessment office. While this excuse may not be sufficient to justify a lengthy delay, I believe 

that it satisfies the adequate cause test in this case, given the admonition of Congress cited above, 

74 
because the penalties were proposed only a few months later than is typical for the Office of 

Assessments. 

CDK argues that it was actually prejudiced by the delay because its witnesses moved 

away after its Colorado project was completed and the company is winding down its affairs. 

Although I agree with the Secretary that witnesses frequently move away before a hearing can be 

scheduled, the situation presented by this case is more serious because CDK's construction 

project has been completed and CDK no longer employs any of its witnesses. Although CDK 

may not have known at the time the citations were issued that the company would be going out of 

business, it knew that its construction project in Colorado would be ending and that many of its 

employee witnesses would be moving elsewhere. 

Section 105 of the Mine Act gives mine operators the right to request a hearing on the 

merits before penalties are proposed. The Commission's Procedural Rule 20 sets forth an 

operator's right to contest citations. 29 C.F.R. § 2700.20. The Commission has long held that an 

operator can contest any citation or order before a penalty is proposed by the Secretary. Energy 

Fuels Corp., 1FMSHRC299, 307-09 (May 1979). CDK protected its rights when it contested 

the citations in the contest proceedings se_t forth in the above caption. Although the Commission 

generally expects operators to wait until a penalty is proposed before requesting that the case be 

heard, it recognizes that situations will arise in which a hearing on the merits should be held 

before the Secretary proposes a penalty. If an operator files a pre-penalty notice of contest under 

Procedural Rule 20 and believes that it requires a hearing before the Secretary files her proposed 

penalty assessment under Procedural Rule 25, it can file a motion with the administrative law 

judge asking that the case be set for hearing. In a companion case to Energy Fuels, the 

Commission provided some examples in which a pre-penalty hearing may be desirable. 

Although it is arguably unlikely that the operators [in these 

consolidated cases] will need a hearing before a penalty is 

proposed (the alleged violations having been abated and the 

citations containing no special findings), it might nevertheless be 

desirable for a hearing to be scheduled quickly if, for example, the 

allegedly violative conditions often recur, if continuing abatement 

efforts are expensive, or if another case is being heard on the same 

issue and early consolidation would be helpful. 

Helvetia Coal Co., I FMSHRC 321, 322 (May 1979). While the closing of a mine or the 

winding down of an operator's business is not listed as an example, it is clearly the type of case 

in which a pre-penalty hearing is desirable. 

CDK agreed with the Secretary's motion to stay the pre-penalty contest cases during a 

conference call held on June 27, 2001. CDK knew that its Colorado project was coming. to an 

end and, at some point, also knew that CDK itself would be winding down its operations. Yet, 

CDK neither advised me of that fact nor asked that the stay be lifted so that a hearing could be 

75 
scheduled.* The parties engaged in extensive discovery during the period of the stay and 

depositions were taken of many of CDK's potential witnesses. CDK could have requested that a 

hearing be scheduled before its witnesses were terminated from employment or upon the 

completion of discovery. All relevant issues could have been litigated at such a hearing, 

including whether the alleged violations occurred and, if so, whether they were significant and 

substantial and the result of CD K 's unwarrantable failure to comply with the safety standards. 

Negligence and gravity issues could have also been adjudicated. All elements of a citation that 

are subject to eyewitness testimony can be litigated before a penalty is proposed. At the very 

least, CDK could have made sure that the testimony of its key witnesses was preserved in 

deposition testimony. 

I find that any prejudice suffered by CDK as a result of the Secretary's delay in proposing . 

penalties for the three citations at issue could have been prevented if CDK had requested a prepenalty hearing on the merits of the citations. By forgoing its right to request a pre-penalty 

hearing when it knew that it would be closing its operations, CDK surrendered its right to claim 

that it was prejudiced by the Secretary's delay in proposing penalties in these cases. 

III. ORDER 

I find that although the Secretary took several months longer to propose penalties for the 

citations than normal, the penalties were proposed within a reasonable time. In the alternative, I 

find that the Secretary demonstrated adequate cause for the delay. I also find that, by not 

requesting a pre-penalty hearing, CDK waived its right to claim prejudice because it knew that it 

would be shutting down its operations and terminating its employee witnesses. Consequently, 

CDK Contracting Company's motion to dismiss is DENIED . 

Distribution: 

. Manning 

Administrative Law Judge 

• Counsel for CDK advised me of the status of CD K's operations in October 2002, five 

months after the Secretary proposed penalties in these cases. 

76 
Karen L. Johnston, Esq., Jackson & Kelly,1099 l81

h Street, Suite 2150, Denver, CO 80202 (Fax 

and First Class Mail) 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550, 

Denver, CO 80201-6550 (Fax and First Class Mail) 

RWM 

77 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577 /FAA 303-844-5268 

CDK CONTRACTING COMP ANY, 

Contestant 

v. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CDK CONTRACTING COMP ANY, 

Respondent 

February 3, 2003 

CONTEST PROCEEDING 

Docket No. WEST 2001-426-RM 

Citation No. 7935408; 4/23/2001 

Mine ID 05-00037 L35 

Portland Plant/Quarry 

CNIL PENALTY PROCEEDING 

Docket No. WEST 2003-5-M 

A.C. No. 05-00037-05511 L35 

Portland Plant & Quarry 

ORDER DENYING CDK CONTRACTING COMP ANY'S 

MOTION TO DISMISS 

CDK Contracting Company ("CDK") filed a motion to vacate Citation No. 7935408 in 

these cases and to dismiss the civil penalty proceeding. As grounds for the motion, CDK argues 

that the Secretary failed to propose a penalty for the alleged violation within a reasonable time 

after the termination of the Secretary's investigation of a fatal accident at the Portland Plant and 

Quarry as required by section 105(a) of the Mine Act. The Secretary opposes the motion. 

On February 24, 2001, a fatal accident occurred when a CDK employee fell from a 

scaffold ladder at the Portland Plant and Quarry. CDK was a construction contractor at that site. 

The Department of Labor's Mine Safety and Health Administration ("MSHA") commenced its 

investigation of the accident that day. On April 23, 2001, MSHA issued the citation at issue in 

these cases. CDK.contested the citation on May 23, 2001. MSHA issued its final report on the 

investigation of the accident on July 9, 2001. On August 16, 2002, MSHA issued its proposed 

assessment of penalty under 29 C.F.R. § 2700.25. CDK timely filed its contest of the proposed 

penalty. MSHA proposed the penalty for the citation almost 16 months after it was issued and 

almost 13 months after MSHA issued its final report on the accident. 

78 
I. SUMMARY OF THE PARTIES' ARGUMENTS 

CDK argues that these cases must be dismissed because the Secretary failed to notify 

CDK of the proposed penalty within a reasonable time after the termination of the accident 

investigation, as required by the Mine Act. The Secretary is required ''within a reasonable time 

after the termination of such inspection or investigation [to] notify the operator ... of the civil 

penalty to be assessed . ... " 30 U.S.C. § 815(a). CDK argues that notification of the proposed 

penalty amount 16 months after the citation was issued is not within a reasonable time under the 

Mine Act. CDK maintains that the Secretary cannot establish that this delay was reasonable. 

Although these cases involve a fatal accident, the facts are not complex and were fully known by 

the time the citation was issued. CDK maintains that there was not an unusually high number of 

special assessments during 2001 -02. The Commission accepted a lengthy delay in proposing a 

penalty when the caseload of the assessments office increased exponentially. Steele Branch 

Mining, 18 FMSHRC 6, 14 (Jan. 1996). There has been no showing of such an increase here. 

The Secretary maintains that the proposed penalty was issued within a reasonable time 

given the circumstances of these cases. She also argues that she demonstrated just cause for any 

delay. The Secretary states that the special assessments group ofMSHA's Office of Assessments 

was extremely busy during 2001-02. She states that this group has only four employees and two 

of these employees were unavailable during the relevant period of time. The Secretary points to 

the fact that during 2001, 2, 153 "routine" special assessments were proposed, 217 "fatal/serious 

injury related" special assessments were proposed, and 204 "section l lO(c)" special assessments 

were considered. In the first nine months of 2002, the numbers were 1,949, 183, and 158, 

respectively. 

The Secretary contends that the relevant time period did not begin to run until MSHA 

completed its accident investigation. She maintains that the fatality that triggered the 

investigation was extremely serious and many citations were referred for special assessment. She 

states that careful consideration of the facts and consideration of the statutory criteria consumed 

considerable time. The citation was in the Office of Assessments from August 2001 until 

August 16, 2002. There was a backlog of cases in the office of special assessments during that 

time because one of the four assessors was on extended leave and the other was unavailable 

because of a training program. In addition, the Secretary states that the supervisor of the special 

assessments/group was heavily involved in the development ofMSHA's standardized 

information system, which will completely replicate the records into a web-based system. 

The Secretary believes that the reasonableness of time should be analyzed by taking into 

consideration the length and circumstances of the delay, the prejudice to the opposing party by 

reason of the delay,, and the circumstances compelling relief. The Secretary contends that CDK 

suffered no actual prejudice because both parties used the time to conduct discovery and .prepare 

for trial. The mere potential for prejudice is insufficient. Dismissal of a civil penalty proceeding 

because of a delay that was not prejudicial would clearly run counter to the concern for safe and 

79 
healthful working conditions that led to the creation of the civil penalty program. The Secretary 

points to the legislative history of the Mine Act in which the Senate Committee on Human 

Resources stated that "there may be circumstances, although rare, when prompt proposal of a 

penalty may not be possible, and the Committee does not expect that the failure to propose a 

penalty with promptness shall vitiate any proposed penalty proceeding." (S. Rep. 95-181, at 34, 

reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the 

Federal Mine Safety and Health Act of 1977, at 622 (1978)). 

II. ANALYSIS OF THE ISSUES 

The Commission has excused the late filing of proposed penalties based on claims of 

excessive work load, but it made clear that such claims will not receive blank.et approval. Steele 

Branch, 18 FMSHRC at 14; Salt Lake County Rd. Dept., 3 FMSHRC 1714, 1717 (July 1981). 

The assessment in Steele Branch arose in 1991-92 when there was a dramatic increase in the 

number of penalty assessments. See Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089, 2094 

(Oct. 1993). In the present cases, the delay was in large measure caused by the fact that two of 

the four MSHA employees assigned to the special assessments office were not available for a 

significant period of time. One employee was on extended leave for an unspecified reason, the 

other was in training, and the supervisor was heavily involved in developing a new information 

system. These excuses are not nearly as compelling as the excuse offered by the Secretary in 

Steele Branch. 

The citation at issue originally alleged that Holnam, Inc., the production operator, failed 

to immediately notify MSHA's Rocky Mountain District that a fatal accident occurred at the 

Portland Plant and Quarry. The citation was modified on May 4, 2001, to charge CDK with the 

violation rather than Holnam, Inc. The proposed penalty is $100. Thus, the penalty was 

proposed about 15 months after the citation was issued to CDK. 

The accident in these cases was serious and required an analysis of the facts by the Office 

of Assessments. Proposing penalties following a fatal accident requires a high degree of 

diligence on the part of assessment office employees and those MSHA officials who review the 

proposals. The office's staff was reduced and the supervisor's assistance was compromised by a 

major project. It is important to remember that a penalty is typically proposed within three to 

nine months after a citation is issued, so the delay in these cases is not as great as it may first 

appear. I find that the penalty involved in these cases were proposed within a reasonable time. 

I also find that the Secretary established adequate cause for any delay. I agree with Judge 

Michael Zielinski's analysis of this issue in Paiute Aggregates, Inc., 24 FMSHRC 950, 954 (Oct. 

2002). In that case, Judge Zielinski concluded that the Secretary did not establish that the entire 

14 month delay was due to factors beyond her control because she was unable to provide a weekby-week description of the events that occurred while the Office of Assessments was considering 

what penalties to propose. Id. Nevertheless, he held that it is clear that Congress intended that 

"delays in proposing penalties should not nullify penalty proceedings." Id. Paiute Aggregates 

80 
arose under circumstances that are quite similar to the present cases. The showing necessary to 

establish adequate cause will vary depending upon the length and circumstances of the delay. 

Paiute Aggregates, Inc., 24 FMSHRC 943, 946 (Oct. 2002) (Judge Zielinski). Thus, a case 

involving an egregious delay will require greater justification to meet the adequate cause test. Id. 

Here the somewhat short delay was caused by the Secretary's failure to adequately staff its 

special assessment office. While this excuse may not be sufficient to justify a lengthy delay, I 

believe that it satisfies the adequate cause test in this case, given the admonition of Congress 

cited above, because the penalties were proposed only a few months later than is typical for the 

Office of Assessments. 

I also take into consideration the fact that this citation was part of a group of citations that 

were specially assessed following the accident investigation. The explanation provided by the 

Secretary does not support a 15 month period to proposed a $100 penalty for a violation of 

section 50.10. If this citation were considered alone, I would dismiss the civil penalty case. On 

this date, I issued orders denying CD K's motions to dismiss in two other groups of cases that 

arose after the same accident. (WEST 2001-420-RM, etc., with WEST 2002-464-M; and WEST 

2001-348-RM, etc., with WEST 2002-461-M). These other cases involve ten citations and 

orders that were specially assessed. When taken with these other cases, the Secretary has 

provided sufficient justification for the length of time she took to propose a penalty for Citation 

No. 7935408. 

In the other CDK cases referenced above, CDK argued that it was actually prejudiced by 

the delay because its witnesses moved away after its Colorado project was completed and the 

company was in the process of winding down its affairs. It is not entirely clear from its motion 

whether CDK is making the same argument in these cases. My ruling on the prejudice issue 

would be the same here and I incorporate by reference my analysis on that issue from my order in 

WEST 2002-420-RM, etc. 

81 
III. ORDER 

I find that although the Secretary took a longer period of time to propose a penalty for 

Citation No. 7935408 than normally would be the case, the penalty was proposed within a 

reasonable time. In the alternative, I find that the Secretary demonstrated adequate cause for the 

delay taking into consideration the other ten citations that were specially assessed following the 

accident investigation. I also find that, by not requesting a pre-penalty hearing, CDK waived its 

right to claim actual prejudice because it knew that it would be shutting down its operations and 

terminating its employee witnesses. Consequently, CDK Contracting Company's motion to 

dismiss is DENIED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Karen L. Johnston, Esq., Jackson & Kelly,1099 l81

h Street, Suite 2150, Denver, CO 80202 (Fax 

and First Class Mail) 

Gregory W. Tronson, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550, 

Denver, CO 80201-6550 (Fax and First Class Mail) 

RWM 

82 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

THOMAS P. DYE II, 

Complainant 

V. 

DENVER, CO 80204-3582 

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

February 6, 2003 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2002-408-DM 

RMMD02-11 

Mine I.D. 05-01732 

Cotter Mill 

MINERAL RECOVERY SPECIALISTS, INC., : 

Respondent 

ORDER DENYING MOTION TO AMEND COMPLAINT 

TO INCLUDE RECOVERY DYNAMICS LLC AND TBD LLC AS RESPONDENTS 

This proceeding was brought by Thomas P. Dye against Mineral Recovery Specialists, 

Inc., ("MRSI") under section 105( c) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. ("Mine Act") and 29 C.F.R.§ 2700.40 et seq. The complaint alleges, in part, 

that MRSI violated section 105(c) of the Mine Act when it did not hire Dye as a permanent 

employee because he insisted that a recently repaired piece of equipment be fully safety-tested 

before it was put back into service. MRS! denies the allegations in the complaint. MRSI states 

that the business of the company has ceased and that it is in the process of winding up and 

liquidating its affairs. 

Mr. Dye filed a motion to amend the complaint to add Recovery Dynamics LLC and TBD 

LLC as respondents. Mr. Dye states that Recovery Dynamics, also known as Recodyne, is the 

predecessor of MRSI. It appears that Recovery Dynamics entered into an agreement as a 

subcontractor to CMS Enterprises Company to provide engineering and design services for a 

zirconium recovery project at the Cotter Mill, owned and operated by Cotter Corporation. The 

owners of Recovery Dynamics incorporated MRS! to perform this work. All rights and 

responsibilities under the agreement were assigned to MRSI. Mr. Dye alleges that Recovery 

Dynamics and MRSI are one and the same company because they have the same address, phone 

number, and fax number and because they share other similarities. He alleges that these two 

entities commingled funds. He also states that they shared employees. He bases his motion on 

documents that he located on the Internet, records that were kept in the MRSI trailer at the Cotter 

Mill, and the written statements of Rene L. Lucas, who was the shipping and receiving 

administrator for MRSI at the mill. Dye states that Dan Dilday was the owner ofMRSI and was 

its project manager at the mill. Mr. Dilday was also working on the White Mesa Mill project for 

Recovery Dynamics. Thus, Dilday was employed by both entities. Mr. Dye also states that 

MRSI is owned by a company called TBD LLC. He states that TBD is also owned by Dilday and 

is located at the same address as MRSI and Recovery Dynamics. 

83 
The record in this case does not reveal who owns Recovery Dynamics, TBD, and MRSI. 

Dye contends that Mr. Dilday was the sole owner of these companies, but he offered no proof. 

MRSI admits that the owners of MRSI also own Recovery Dynamics. Dye enclosed 19 

attachments to support his motion. Many of these attachments are Internet records kept by the 

Tennessee Secretary of State. These records show that Mr. Dilday was the registered agent for a 

number of companies including TBD and EN2 LLC, which is a medical equipment supply 

company. (Attach. 2 & 15). The principal office of these companies is listed as 200 East Main 

Street, 6 th Floor, Johnson City, Tennessee. These records show that a number of other companies 

are also headquartered at the same address including MSRI and Recovery Dynamics. (Attach. 2, 

5, 16 & 19). These records also list David R. Tierney and W. Dan Black as registered agents for 

Recovery Dynamics. (Attach. 18 & 19). None of these records specify who are the shareholders 

of these corporations. 

A written statement of Ms. Lucas explains that there was a drawer of files in the MRSI 

trailer at the Cotter Mill relating to Recovery Dynamics' work for International Uranium 

Corporation in Utah. (Attach. 1). Ms. Lucas helped organize files for MRSI and in her statement 

she asserts that over three million dollars was paid to MRS! under the relevant contract between 

March 2000 and January 2001. Id. Mr. Dye contends that the two companies must have 

commingled funds because MRSI is now claiming that it is insolvent. Ms. Lucas states that "I 

find it odd that MRSI would claim that they're broke when I know for a fact that, though MRSI 

did buy some equipment . .. , a major portion of what they received was for salaries, wages, 

expenses, and services." (Attach. 1 at 2). 

Dye also produced Internet records of the Colorado Secretary of State to show that Dilday 

was president of Rooster's Bar and Grill, Inc., in Canon City, Colorado. (Attach. 6). Dye and 

Lucas visited this establishment and state that they were told by Christine Smith that Mr. Dilday 

sold his interest in the bar for $1. (Attach. 7). Ms. Smith, who told them that she is the current 

owner of the bar, advised Dye and Lucas that she had to pay $60,000 for these same shares. 

Lucas's statement on this matter includes other allegations including a description of a 

conversation Ms. Smith said that she overheard at her bar to the effect that MRSI made sure that 

the zirconium recovery project failed so that it "could file the patent [on the zirconium recovery 

process] and collect the insurance money." According to the statement, the insurance money was 

obtained by deliberately destroying equipment. 

Section 105(c)(l) provides that no person shall discharge or in any manner discriminate 

against a miner in any coal or other mine subject to the Mine Act because he has made a safety 

complaint. A miner is defined as any individual working at a mine. A "coal or other mine" is 

defined in section 3(h)(l) of the Mine Act to include facilities used in the milling of minerals. 

The term "person" is defined in section 3(f) as any "individual, partnership, association, 

corporation, firm, subsidiary of a corporation or other organization." In this case, Mr. Dye filed a 

complaint with the Department of Labor's Mine Safety and Health Administration ("MSHA") 

alleging that MRSI discriminated against him for making safety complaints in violation of 

section 105(c). When MSHA determined that Mr. Dye was not discriminated against, he brought 

84 
this action on his own behalf. At all pertinent times, Dye was employed by MRSI at its project at 

the Cotter Mill. 

Mr. Dye was never employed by Recovery Dynamics. Recovery Dynamics was not a 

mine operator at the Cotter Mill. A mine "operator" is defined in section 3( d) of the Mine Act 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." MRSI was an 

independent contractor performing services as an operator at the Cotter Mill. There has been no 

showing that Recovery Dynamics was in any way involved in operating, controlling or 

supervising the work being performed at the Cotter Mill. There has also been no showing that 

Recovery Dynamics was an independent contractor performing services or construction at the 

Cotter Mill. 

The fact that the owners of Recovery Dynamics incorporated MRS! to carry out the terms 

of the contract to provide services for the zirconium recovery project does not establish that 

Recovery Dynamics was an operator at the Cotter Mill. It is clear that both corporations used the 

same office and phone system in Johnson City, Tennessee. It is also clear that the two 

corporations shared some employees. These facts do not establish that the two corporations were 

one and the same or that Recovery Dynamics was an operator at the Cotter Mill. Although it 

appears that Mr. Dilday was employed by both corporations, there is no evidence to show that he 

was working for anyone other than MRS! when carrying out his duties under the contract at the 

zirconium recovery project. The information provided by Mr. Dye does not prove that the two 

corporations should be treated as one mine operator. The evidence concerning the money paid 

MRS! under the contract is just an assertion; it does not establish that the two companies 

commingled funds. I conclude that Recovery Dynamics was not an operator at the Cotter Mill 

and cannot be held liable for any discrimination against Dye under section 105(c) of the Mine 

Act. 

Mr. Dye presented very little information to support his motion with respect to TBD. 

Dye apparently bases his contention that TBD owns MRS! on the information he obtained when 

he entered the name of MRSI's website (mineralrecovery.com) at domainwatch.com, which 

apparently is an Internet resource that provides information on Internet domain names. When he 

entered the website name for MRS! at the domain watch website, it listed TBD LLC as the 

"organization" that holds the domain name. (Attach. 14). This information is insufficient to 

establish ownership. Although it is clear that Dilday has a relationship with TBD, there is no 

showing that TBD was an operator at the Cotter Mill. For the reasons discussed above, I 

conclude that there is no proof that TBD was an operator at the mill and I conclude that TBD is 

not subject to liability under section 105(c) of the Mine Act. 

A court must generally recognize and uphold a corporate entity unless specific, unusual 

circumstances call for the exception. ( 18 Am. J ur. 2d Corporations § 5 8, at 868-69). If a 

corporation is used as an intermediary to perpetrate fraud or promote injustice, its identity as a 

corporate entity may be pierced. The "corporate veil may be pierced ... when ... the corporate 

85 
form would otherwise be misused to accomplish certain wrongful purposes, most notably fraud." 

United States v. Bestfoods, 524 U.S. 51, 61 (1998). I find that Mr. Dye did not establish that 

MRSI was used by its owners to perpetrate fraud or promote injustice. Dye presented 

information that he believes shows that MRSI, Recovery Dynamics, and TBD were rather shady 

operations that engaged in fraudulent transactions, but this information is insufficient to establish 

that allegation because the information presented is pure speculation and hearsay. Mr. Dye has 

not presented sufficient evidence to warrant piercing the corporate veil. 

The corporate form can also be set aside in certain situations if it can be shown that the 

unity of ownership and interest is so great that the individuality or separateness of two 

corporations has ceased. (18 Am. Jur. 2d Corporations§ 56, at 861-62). I find that Mr. Dye 

failed to establish that MRSI was the alter ego of Recovery Dynamics or TBD. The fact that 

Recovery Dynamics and MRSI had the same owners is not enough to ignore the corporate form. 

Likewise, that Dilday performed services for both corporations and that all three corporations 

used the same address and support staff is insufficient to establish that they were alter egos. "The 

fact that the stockholders, officers or directors in two corporations may be the same persons does 

not operate to destroy the legal identity of either corporation, nor does the fact that one 

corporation exercises a controlling influence over another through the ownership of stock or 

through the identity of stockholders make either the agent of the other or merge the two 

corporations into one .... " (Id. at§ 57, p 865). Dye has not demonstrated that financial 

transactions were improperly accounted for in the books of the corporations or that the 

corporations did not honor the corporate form in all respects. It has not been established that 

Recovery Dynamics or TBD were in any way involved at the Cotter Mill or that the three 

corporations were treated as one by the owners. As discussed above, Dye's allegations of 

fraudulent transactions is too speculative to form the basis for the motion. 

In some circumstances, a successor may be required to remedy wrongful discrimination. 

A successor is a corporation that assumes the rights and liabilities of the corporation that engaged 

in the discrimination. In such cases a variety of relevant liability and economic factors are 

considered, as follows: 

(1) whether the successor company had notice of the charge, (2) the 

ability of the predecessor to provide relief, (3) whether there has 

been a substantial continuity of business operations, (4) whether 

the new employer uses the same plant, (5) whether he uses the 

same or substantially the same work force, (6) whether he uses the 

same or substantially the same supervisory personnel, (7) whether 

the same jobs exist under substantially the same working 

conditions, (8) whether he uses the same machinery, equipment, 

and -methods of production, and (9) whether he produces the same 

products. 

Sec'y of Labor on behalf of Corbin v. Sugartree Corp., 9 FMSHRC 394, 397-98 (Mar. 1987) 

86 
(citation omitted). It has not been shown that Recovery Dynamics or TBD are successors to 

MRSI. MRSI performed services at the Cotter Mill for about two years. MSRI is no longer 

performing any services at the mill and neither Recovery Dynamics nor TBD ever performed any 

services at the mill. It has not been shown that the same jobs exist at Recovery Dynamics or 

TBD or that the same services are provided by Recovery Dynamics or TBD at any location in the 

United States. Consequently, I conclude that Mr. Dye has not established that Recovery 

Dynamics or TBD are successors to MRSL 

For the reasons discussed above, Mr. Dye's motion to amend his complaint of 

discrimination to include Recovery Dynamics LLC and TBD LLC as respondents is DENIED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Mr. Thomas P. Dye, 1428 S 4th Street, Canon City, CO 81212-9664 

Mineral Recovery Specialists, Inc., 200 E. Main Street, 61

h Floor, Johnson City, TN 37604 

RWM 

87 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

AGGREGATE INDUSTRIES, WEST 

CENTRAL REGION, INC., 

Contestant 

v. 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AGGREGATE INDUSTRIES, WEST 

CENTRAL REGION, INC., 

Respondent 

February 11, 2003 

CONTEST PROCEEDINGS 

Docket No. WEST 2002-317-RM 

Citation No. 7914271; 01/22/2002 

Docket No. WEST 2002-318-RM 

Citation No. 7914268; 01124/2002 

Docket No. WEST 2002-319-RM 

Citation No. 7914269; 01/24/2002 

Docket No. WEST 2002-320-RM 

Citation No. 7943951; 01/31/2002 

Fort Collins Plant 

Id. No. 05-04733 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2003-32-M 

A.C. No. 05-04733-05501 

Docket No. WEST 2003-33-M 

A.C. No. 05-04733-05502 

Fort Collins Plant 

DISCOVERY ORDER 

ORDER TO INITIATE CONFERENCE CALL 

Aggregate Industries, West Central Region, Inc., ("Aggregate Industries") filed two 

motions seeking information concerning the Secretary's special assessment process. In its 

motion to compel, Aggregate Industries seeks an order compelling the Secretary to produce all 

documents that it requested "concerning the special assessment related to the alleged 

unwarrantable failure violation ... including, but not limited to the MSHA form 7000-32, 

Special Assessment Review Form, prepared by MSHA to support and obtain a special 

assessment of $30,000." In its motion to take depositions, Aggregate Industries asks that the 

Secretary be ordered to "designate one or more managing agents or other persons to testify ... 

88 

.. 
concerning the special penalty assessments, and factors, information and documents related to 

such penalty assessments, including the Special Assessment Review Form, concerning those 

citations contested in these proceedings." The Secretary opposes both motions. 

I. Special Assessment Review Form 

With respect to the Special Assessment Review Form, the Secretary maintains that the 

document is irrelevant and subject to the deliberative process privilege. She contends that it is 

irrelevant because the Commission assesses penalties de novo. She maintains that it is subject to 

the deliberative process privilege because it contains predecisional, deliberative 

recommendations made by the MSHA inspector to his supervisors about whether a special 

assessment should be initiated. The Secretary knows of no other documents concerning the 

special assessment that have not already been provided to Aggregate Industries. 

As discussed in more detail below, I agree with the Secretary that her special assessment 

process in 30 C.F.R. § 100.5 is totally irrelevant in these proceedings. Commission 

administrative law judges assess penalties taking into consideration the six penalty criteria in 

section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), without regard to the Secretary's special 

assessment provisions. If I find that the Secretary has established violations in these cases, I will 

assess each penalty based only on the penalty criteria without taking into consideration how the 

Secretary assessed the violation. 

The Special Assessment Review Form contains facts that the MSHA inspector presents to 

his supervisor to support a special assessment. Thus, this form may contain factual information 

that relates to the penalty criteria. The deliberative process privilege protects communications 

between subordinates and supervisors within the government that are "antecedent to the adoption 

of an agency policy." Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 

987, 992 (June 1992) (citation omitted). The deliberative process privilege "covers 

recommendations, draft documents, proposals, suggestions, and other subjective documents 

which reflect the personal opinions of the writer rather than the policy of the agency." Coastal 

States Gas Corp. v. Dep 't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). Documents that are 

protected by the privilege "are those which would inaccurately reflect or prematurely disclose the 

views of the agency, suggesting as agency position that which is as yet only a personal position." 

Id. Nevertheless, "even if the document is predecisional at the time it is prepared, it can lose that 

status if it is adopted, formally or informally, as the agency position on an issue or is used by the 

agency in its dealing with the public."1 Id. 

The Secretary provided a copy of the Special Assessment Review Form for my in camera 

review. After reviewing the document, I find that it is not protected by the deliberative process 

privilege. First, the only substantive writing on the form is in section 10, which contains the 

1 A more detailed discussion of the deliberative process privilege is contained in my order 

in Newmont Gold Co., 18 FMSHRC 1532 (August 1996). 

89 
facts the inspector used to support his recommendation. He describes, in one short sentence, why 

he believed that the operator was especially negligent with respect to Citation No. 7914271. The 

citation was issued under section 104( d)(l) of the Mine Act. The body of the citation itself 

contains the same information. The inspector's determination with respect to negligence was 

adopted by the Secretary as the agency's position. Thus, even ifthe review form had once been 

protected by the privilege, its protected status was lost when MSHA adopted his 

recommendation. 

In addition, the Secretary's position with respect to the Special Assessment Review Form 

is inconsistent at best. I take official notice of the fact that I have been assigned several cases in 

the past few years in which this form was attached to the Secretary's petition for assessment of 

penalty as a part of Exhibit A. In addition, the Secretary has introduced this form into evidence 

at hearings to support her case. See, e.g., Basin Resources, Inc., 19 FMSHRC 1565, 1570-71 

(Sept. 1997) (ALJ); S & M Construction, Inc., 18 FMSHRC 1018, 1051-52 (June 1996) (ALJ). 

The Secretary cannot make her Special Assessment Review Form public in some cases and claim 

that it is priviieged in others. 

I find that the Special Assessment Review Form has some marginal relevance to the 

Secretary's high negligence and unwarrantable failure determinations. For the reasons set forth 

above, the Secretary is hereby ORDERED to provide counsel for Aggregate Industries a copy of 

the Special Assessment Review Form for Citation No. 7914271 within ten days of this order. 

II. Depositions of MSHA Assessment Office Officials 

Aggregate Industries seeks to depose the "MSHA employee best suited to testify 

concerning penalty assessments in this matter." The Secretary contends that such depositions 

would neither produce relevant evidence nor would they appear likely to lead to the discovery of 

admissible evidence. Aggregate Industries contends that it is "entitled under Fed. R. Civ. P. 

30(b)(6) to discover any evidence concerning or supporting the petition for assessment of 

penalty .... " It bases its argument on its belief that "the Secretary of Labor intends to offer 

evidence to support the petition for assessment of penalty." 

I find that the information that Aggregate Industries seeks to obtain is totally irrelevant to 

these cases. First, I will not admit any evidence from the Secretary concerning her proposed 

assessments except as it relates to the six criteria under section 11 O(i) of the Mine Act. Evidence 

concerning her special assessment procedures will not be admitted. More importantly, 

Commission judges assess penalties de nova by examining the penalty criteria of section 11 O(i). 

Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (March 1983), aff'd 736 F. 2d 1147 (71h Cir. 

1984). Commission administrative law judges must enter findings of fact on each of the six 

penalty criteria. Cantera Green, 22 FMSHRC 616, 621-22 (May 2000). A judge must explain 

how his findings with respect to the penalty criteria contributed to his penalty assessment. A 

judge does not consider the Secretary's regulations at 30 C.F.R. Part 100 when assessing 

penalties. Consequently, the information that Aggregate Industries seeks is irrelevant to the 

90 
issues raised in these cases. 

The Secretary will have the burden of proof with respect to the six penalty criteria. 2 

Aggregate fudustries will have the opportunity to cross-examine the Secretary's witnesses on the 

criteria and to introduce evidence of its own. For the reasons set forth above, Aggregate 

Industries' motion to take depositions is DENIED. 

III. Conference Call Concerning Hearing Date. 

Counsel for the Secretary shall initiate a conference call on or before February 21, 2003, 

to establish a hearing date for these cases. If I do not hear from the parties by that date, the 

hearing will commence on April 22, 2003. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

James J. Gonzales, Esq., Holland & Hart, 555 Seventeenth St., Ste 3200, Denver, CO 80202-

3921 (Fax and First Class Mail) 

John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550, 

Denver, CO 80201-6550 (Fax and First Class Mail) 

RWM 

2 Aggregate fudustries will have the burden of establishing that the proposed penalties will 

adversely affect its ability to continue in business. 

91 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577 /F /l\X.. 303-844-5268 

February 13, 2003 

THOMAS P. DYE II, 

Complainant 

v. 

MINERAL RECOVERY SPECIALISTS, INC., : 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2002-408-DM 

RMMD 02-11 

Mine I.D. 05-01732 

Cotter Mill 

ORDER ACCEPTING DOCUMENTS INTO EVIDENCE 

ORDER ALLOWING RESPONDENT TO PRESENT EVIDENCE 

WITHOUT APPEARING AT THE HEARING 

This proceeding was brought by Thomas P. Dye against Mineral Recovery Specialists, 

Inc., ("MRSf') under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. ("Mine Act") and 29 C.F.R.§ 2700.40 et seq. The complaint alleges, in part, 

that MRSI violated section 105(c) of the Mine Act when it did not hire Dye as a permanent 

employee because he insisted that a recently repaired piece of equipment be fully safety-tested 

before it was put back into service. MRSI denies the allegations in the complaint. 

MRSI filed a motion to accept its pleadings, sworn affidavits, and other documents as 

evidence in this case. As part of this motion, MRSI states that, because it is no longer in 

operation, it will not be able to attend the hearing that is presently scheduled for March 4, 2003. 

MRSI asks that it not be held in default for its failure to appear but that Mr. Dye be required to 

present his case and that the court take into consideration the written documents that it has 

submitted. In support of the motion, MRSI states that it was incorporated to provide services to 

CMS Enterprises ("CMS") on a zirconium recovery project at the Cotter Mill in Fremont County, 

Colorado. Upon cancellation of the project by CMS, effective August 16, 2002, MRSI had 

served its purpose and had no other jobs or projects. MRSI states that it now has a negative net 

worth and that its business has ceased. MRSI filed articles of dissolution with the State of 

Tennessee on December 23, 2002. MRSI states that it is in the process of negotiating with its 

creditors and winding up its affairs. It asserts that it does not have the means to defend itself at a 

hearing. 

MRSI argues that under these circumstances, "it would be inequitable for MRSI to suffer 

a default judgment merely because it is unable to pay for further legal representation." (Motion 

at 4). MRSI was represented by counsel until, by order dated January 22, 2003, I permitted 

counsel to withdraw because he stated that he had not been paid for any of his services. MRSI 

92 
states that it "desires that this case be decided on the merits rather than on MRSI's inability to 

finance its defense or on procedural grounds." Id. at 5. 

In lieu of appearing at a hearing, MRSI presented an affidavit of Daniel R. Dilday, an 

affidavit of Davis Tilton, an affidavit of James Miller, and several other documents. MRSI asks 

that these documents be accepted into the record, along with the documents that have been 

previously submitted, and that these documents be considered when I decide this case. Finally, 

MRSI presented its argument as to why I should enter an order finding that MRSI did not 

discriminate against Mr. Dye. 

Mr. Dye opposes the motion. He argues that MRSI has not demonstrated that it is 

"broke." He contends that the evidence MRSI presented is not reliable because the accounting 

firm that prepared the balance sheet stated that "[m]anagement has elected to omit substantially 

all of the disclosures and the statements of cash flows required by generally accepted accounting 

principles." The accounting firm further stated that "[i]f the omitted disclosures were included in 

the financial statements, they might influence the user's conclusions about the Company's assets, 

liabilities, equity, revenues, and expenses." Mr. Dye believes that MRSI has not shown that it 

cannot defend itself at a hearing. 

I agree with Mr. Dye that the financial records submitted by MRSI are questionable. 

Nevertheless, MRSI states that it is unable to attend the hearing in this case. It is asking that it 

not be held in default for its failure to appear, but that I enter a decision on the merits taking into 

consideration the documents it has submitted. I find that MRSI's request is reasonable under 

Procedural Rule 66(b), 29 C.F.R. § 2700.66(b), and that it does not prejudice Mr. Dye. 

Consequently, ifMRSI does not appear at the hearing, I will not enter an order of default but will 

hold the hearing with only Mr. Dye and his witnesses. I will also admit each affidavit described. 

above and the other documents submitted by MRSI into evidence at the hearing, unless Mr. Dye 

presents sufficient cause to exclude a particular exhibit. I will determine how much I will credit 

each exhibit admitted into evidence in my decision on the merits. 

At the hearing, Mr. Dye will be required to present evidence that he engaged in protected 

activity and that MRSI's adverse actions were motivated at least in part by that protected activity. 

If Mr. Dye is unable to establish this prima facie case, I will dismiss this proceeding. If Mr. Dye 

establishes his prima facie case and the evidence submitted by MRSI does not sufficiently rebut· 

Mr. Dye'sprimafacie case, then I will enter a decision holding that Mr. Dye was discriminated 

against in violation of section 105(c) of the Mine Act. If, however, I find that MRSI's evidence 

rebuts the case presented by Mr. Dye by establishing that either no protected activity occurred or 

that the actions it took against Mr. Dye were in no part motivated by the protected activity, I will 

dismiss the case. In the alternative, if I find that MRSI established that the actions it took against 

Mr. Dye were motiyated in part by unprotected activities and that it would have taken these 

actions for the unprotected activity alone, I will dismiss this case. This manner of presenting 

evidence is not any different from what would occur if MRSI were present at the hearing. I will, 

of course, take into account that Mr. Dye is being deprived of the opportunity to cross-examine 

93 
Messrs. Dilday, Tilton, and Miller. MRSI will be at a disadvantage at the hearing because it may 

not be able to fully respond to Dye's primafacie case. This method of proceeding is designed to 

prevent a complainant from prevailing by default in a case where he could not establish a prima 

facie case. Mr. Dye will have to show that he should prevail on the merits. 

MRSI's motion for a finding of no discrimination is taken under advisement. I will 

consider this motion and the argument presented by MRSI, at pages six through ten of its motion, 

after all of the evidence has been presented at the hearing and the record is closed. 

For the reasons set forth above, MRSI's motion to admit the pleadings, the three sworn 

affidavits, and the other documents submitted by MRSI into evidence at the hearing is 

GRANTED . MRSI's motion that it not be held in default if it fails to appear at the hearing is 

also GRANTED. MRSI's motion for a finding of no discrimination is taken under advisement 

until the record in this case is closed. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Mr. Thomas P. Dye, 1428 S 4th Street, Canon City, CO 81212-9664 

Mineral Recovery Specialists, Inc., 200 E. Main Street, 6th Floor, Johnson City, TN 37604 

RWM 

94 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001 

M & H COAL COMP ANY, 

Contestant 

V. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

February 14, 2003 

CONTEST PROCEEDINGS 

Docket No. PENN 2002-176-R 

Citation No. 7004521;07/02/2002 

Docket No. PENN 2002-177-R 

Citation No. 7004522;07 /02/2002 

Mercury Slope 

Mine ID 36-01920 

ORDER GRANTING SECRETARY'S MOTION 

FOR SUMMARY DECISION 

AND 

STAY ORDER 

These cases are before me on Notices of Contest filed by M&H Coal Company under 

section 105(d) of the Federal Mine Safety and Health Act of 1977 (the "Act"), 30 U.S.C. 

§ 815( d). M&H contests the issuance of a citation and an order by an MSHA inspector alleging 

that it was mining pillars in violation of its approved roof control plan. The Secretary has moved 

for summary decision, pursuant to Commission Procedural Rule 67, 29 C.F.R. § 2700.67, 

contending that the entire record shows that there is no genuine issue as to any material fact and 

that the Secretary is entitled to summary decision as a matter oflaw as to the validity of the 

alleged violations. For the reasons set forth below, the Secretary's motion is granted. 

The pleadings, responses to discovery, affidavits and other portions of the record 

establish that, for purposes of this motion, there is no genuine issue as to the fol1owing facts. 

While certain of the facts might ultimately be disputed by the Secretary, for present purposes, the 

facts are assumed to be as alleged by M&H. 

M&H operates a deep anthracite coal mine. As of May 2002, its approved roof control 

plan did not provide for the removal of pillars on the 3rd level west gangway of its Mercury 

Slope Mine. By letter dated May 18, 2002, it submitted a proposed addendum to its roof control 

plan to the MSHA District Director, pursuant to which it proposed to mine main haulage pillars 

in that area. On June 20, 2002, Kenneth Richter, a consultant to M&H, was advised by a MSHA 

field office supervisor that he and a MSHA roof control specialist favored approval of the 

addendum, but that they had been unable to convince John A. Kuzar, MSHA's District Director, 

95 
to approve it. It was suggested that M&H might be able to persuade him. In a phone 

conversation that morning, Richter spoke with Kuzar, who confirmed that he was going to deny 

the requested addendum, remarking that he had never seen anything like the proposed addendum. 

Neither Kuzar, nor the other MSHA staff who participated in the conversation had ever been in 

M&H's mine. Richter responded that M&H had removed pillars in the manner proposed for fifty 

years and never had any problems. Kuzar responded that M&H was now mining deeper than it 

ever had before, he felt that the proposed mining was too deep, and he feared they would have a 

collapse resulting in fatalities. Kuzar also referred to a computer analysis that indicated that the 

pillars could not be removed safely, and advised that his technical support group had not yet 

finished its analysis of the proposal. Richter countered that the computer program was designed 

for bituminous, not anthracite, coal. Richter answered two questions posed by other MSHA 

staff. Kuzar stated that he was going to deny the requested addendum and that M&H would get 

the written response in a few days. 

On June 21, 2002, the day after the phone conversation, M&H commenced pillar 

recovery at the subject location, in violation of its approved roof control plan. M&H hoped to be 

able to demonstrate that pillar removal could be done safely. On July 1, 2002, M&H received a 

letter dated June 28, 2002, from Kuzar advising that the proposed addendum to the roof control 

plan was disapproved. The letter stated the reasons for the denial and listed five "circumstances" 

upon which the decision was based. M&H continued to remove the pillars at the subject 

location. On July 2, 2002, MSHA inspected the mine, and observed the ongoing pillar recovery 

operations. Citation No. 7004521, was issued, citing M&H for conducting mining operations in 

violation of its approved roof control plan. 1 Order No. 7004522 was also issued, directing that 

all pillaring operations cease. M&H then ceased pillaring operations. 

M&H filed notices of contest, challenging the citation and order, alleging that MSHA's 

denial of the proposed addendum to its roof control plan was arbitrary and capricious, and 

requesting a reversal of MSHA's determination that the pillars could not be removed in 

accordance with its proposed plan and its customary and usual practices. By letters dated July 

26, and 30, 2002, M&H requested a "conference" to discuss the reasons for the denial of the 

addendum, pursuant to 30 C.F.R. § 75.220(b)(2). A meeting was held on August 7, 2002, at 

which M&H agreed to have tests run on the compressive strength of its coal. Following those 

tests, on August 29, 2002, Kuzar reaffirmed the denial of the requested addendum. 

The Applicable Law 

The Mine Act and regulations require that operators conduct mining in conformance with 

a mine-specific roof control plan, approved by the Secretary. 30 U.S.C. § 862, 30 C.F.R. § 220. 

The citation initially charged a violation of 30 C.F.R. § 75.220(a)(l) which 

requires that an operator develop and follow a roof control plan approved by MSHA's District 

Manager. It was modified following a conference to allege a violation of subsection ( c ), which 

states that: ''No proposed roof control plan or revision to a roof control plan shall be 

implemented before it is approved." 

96 
The regulations provide that the operator be notified in writing of the denial of a proposed 

revision to a plan and that "the deficiencies of the plan or revision and recommended changes 

will be specified and the mine operator will be afforded an opportunity to discuss the deficiencies 

and changes with the District Manager." 30 C.F.R. § 75.220(b). While the Secretary of Labor 

retains the ultimate authority and responsibility to determine the contents of the plan, her 

discretion is not unbounded. In discussing comparable provisions of the regulations applicable to 

ventilation plans, the Commission stated: 

The requirement that the Secretary approve an operator's mine ventilation 

plan does not mean that an operator has no option but to acquiesce to the 

Secretary's desires regarding the contents of the plan. Legitimate disagreements 

as to the proper course of action are bound to occur. In attempting to resolve such 

differences, the Secretary and an operator must negotiate in good faith for a 

reasonable period concerning a disputed provision. Where such good faith 

negotiation has taken place, and the operator and the Secretary remain at odds 

over a plan provision, review of the dispute may be obtained by the operator's 

refusal to adopt the disputed provision, thus triggering litigation before the 

Commission. Penn Allegh Coal Co., 3 FMSHRC 2767, 2773 (Dec. 1981). 

Carbon County Coal Co., 7 FMSHRC 1367, 1371(Sept.1985). 

Both the Secretary and the operator are obligated to engage in good faith negotiations and 

an operator who fails to do so may be precluded from challenging the denial of a proposed 

amendment. Id. and see C. W Mining Co., 18 FMSHRC 1740, 1746-47 (Oct. 1996); Peabody 

Coal Co., 15 FMSHRC 381, 387-88 (March 1993). 

M&H does not dispute that, on July 2, 2002, it was removing pillars in non-conformance 

with its approved roof control plan, as alleged in the citation and order. Through these notices of 

contest, it seeks to obtain a declaration that the decision to deny the proposed addendum to its 

roof control plan was arbitrary and capricious, that the addendum should have been approved and 

it should not have been cited for the violations.2 The dispute here is centered on whether M&H 

and the Secretary fulfilled their respective obligations to negotiate prior to the issuance of the 

citation. The Secretary contends that M&H did not fulfill its obligation to negotiate and, 

therefore, is precluded from challenging the correctness of the decision to deny the proposed 

addendum. M&H contends that the Secretary did not fulfill her obligation to negotiate and that 

further attempts to negotiate beyond the July 20, 2002, phone conversation would have been 

futile. 

2 WhUe M&H also challenges the gravity and negligence determinations made by 

the inspector and stated on the citation, the main thrust of these actions is a challenge to the 

alleged violations, i.e., to reverse the denial of its proposed roof control plan addendum. The 

Secretary's motion, and this order, are directed only to the fact of the violation itself. 

97 
Two key elements of good faith negotiation are clear notice of a party's position and 

adequate discussion of disputed provisions. C. W Mining Co., supra. The Secretary's obligation 

to negotiate is reflected in 30 C.F.R. § 220(b), which requires that when denying a proposed 

addendum, the District Manager must do so in writing, specifying the reasons for the denial. The 

District Manager must then afford the operator an opportunity to discuss the reasons for the 

denial. The District Manager's June 28, 2002, letter appropriately stated the reasons for the 

denial and the considerations upon which it was based. After receiving the letter, M&H made no 

attempt to discuss the issues with Kuzar. It continued to mine the pillars and the citation and 

order were issued the following day. 

The regulations and cases that discuss the duty to negotiate under the regulatory scheme 

for approval of roof control and similar plans make clear that the duty to negotiate begins with 

the District Manager's written rejection of a proposed addendum citing the reasons for the denial. 

None of the cases cited by either party sanction an operator's implementation of a proposed 

addendum in anticipation of the District Manager's formal decision. In C. W Mining Co., supra, 

the operator was found to have fulfilled its duty to negotiate in good faith where the citation in 

question was issued over two months after MSHA had provided a detailed written notice of 

deficiencies in the operator's plan, during which time the parties met and discussed all of the 

items cited by MSHA and the operator submitted two revised plans. In Carbon County Coal 

Co., supra, negotiations over MSHA's dissatisfaction with the operator's proposed plan were 

conducted for several months before the subject citation was issued. In Peabody Coal, supra, the 

subject citation was issued one month after MSHA's rejection of a plan, during which time the 

parties met and discussed all of the issues and the operator submitted two revised plans. 

If M&H was convinced that its proposed addendum would not be approved, it was 

obligated to await the written decision specifying the reasons for the denial, and thereafter 

attempt to negotiate with MSHA. If unable to achieve its goal through negotiation, it apparently 

would have had two options. The first would have been to seek direct court review of the denial, 

pursuant to 30 U.S.C. § 81 l(d).3 The second would have been to notify the Secretary that it 

continued to dispute the denial and would commence mining the pillars at a specified time, 

essentially, requesting that a citation be issued so that it could challenge the citation and the 

denial of the proposed addendum in a proceeding before the Commission. M&H did not await 

the written decision and made no attempt to negotiate after receiving it. It cannot now attack the 

denial of the proposed addendum. 

M&H maintains that it was excused from any obligation to attempt to negotiate because 

in the June 20, 2002, phone conversation, Kuzar "refused to further consider the addendum, to 

receive or consider information from M&H Coal Company about its mine, rendering any further 

attempts by M&H at negotiation with MSHA absolutely futile." Respondent's memorandum of 

3 Because the provisions of such plans are enforceable as mandatory standards, it 

appears that an operator may obtain direct judicial review of the Secretary's denial of a proposed 

plan addendum pursuant to section lOl(d) of the Act, 30 U.S.C. § 81 l(d). See United Mine 

Workers of America v. Dole, 870 F.2d 662, n. 13 at 670 (D.C. Cir. 1989). 

98 
law in opposition to the motion at p. 2. I reject its argument that the futility of negotiation, or 

fulfilment of its duty to negotiate, could be established based upon a phone conversation prior to 

the final decision. 

However, assuming argu.endo, that the "futility of negotiation" position had legal merit, 

M&H failed to establish the alleged futility and would not have been relieved of its obligation to 

negotiate in good faith. M&H initiated the June 20 phone call to Kuzar in order to try and 

convince him to approve the proposed addendum. Accepting M&H's description of the 

conversation, at no time did Kuzar state, unequivocally, that the addendum would never be 

approved, or that he would not consider any information that M&H might submit in support of 

its proposal. As noted above, Kuzar had a legal obligation to itemize all of the reasons for the 

denial in his written decision and to discuss the decision with M&H. There is nothing in the 

facts submitted by M&H to suggest that he did not intend to fulfill that obligation. 

In fact, there were several facts known to M&H that should have lead it to conclude that 

eventual approval of the proposal was at least possible. It knew that the MSHA field office 

supervisor and one of the roof control specialists favored approval of the addendum. It knew that 

Kuzar's technical support group had not finished its investigation, and it might also be able to 

challenge some of the factors that Kuzar was relying on, such as his belief that the proposed 

pillar removal was deeper than M&H had conducted such operations in the past. The 

conversation apparently did not touch upon the first three factors later itemized in the written 

denial. In fact, after the citation and order were issued, M&H submitted additional information 

to Kuzar, and agreed to have coal from the mine tested for compressive strength. 

The precedent that M&H seeks to establish here is somewhat alarming. Having been 

apprised of the likely denial of its proposed addendum, it immediately commenced mining in 

violation of its approved roof control plan, and continued to mine in violation of the plan after 

receipt of the written decision. It did not inform MSHA that it was doing so. It claims that it 

was attempting to prove that mining pursuant to the procedure contained in the proposed 

addendum could be done successfully and safely. But, it was also mining as much coal as it 

could before being ordered by MSHA to cease pillar removal. It deliberately chose to embark 

upon a mining procedure that MSHA had determined posed a serious risk to miners - not as a 

limited operation to prompt issuance of a citation in order to generate litigation before the 

Commission - but to generate as much evidence and coal as possible prior to MSHA's discovery 

of the operation. To permit an operator to litigate the correctness of MSHA's decision under 

these circumstances would encourage operators to violate § 75.220(c) and to virtually ignore 

adverse decisions on proposed plan addenda. 

Based upon the foregoing, the Secretary's motion for summary decision is GRANTED, 

Citation No. 7004521 and Order No. 7004522 are affirmed as to the alleged violations of 30 

C.F.R. § 220(c). M&H will not be permitted to challenge the denial of the proposed addendum 

to its roof control plan in these proceedings. The parties did not directly address the gravity and 

negligence determinations in the motion and opposition and those issues can be dealt with more 

efficiently in a challenge to the proposed civil penalties. 

99 
Accordingly, further proceedings in these cases are hereby STAYED, pending assessment 

of civil penalties. 

Distribution: 

Andrea J. Appel, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 630 East, The 

Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

James P. Wallbillich, Esq., 450 West Market Street, Pottsville PA 17901 

/mh 

100 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BIG BUCK ASPHALT, 

Respondent 

February 26, 2003 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2002-187-M 

A.C. No. 41-03751-05516 

Docket No. CENT 2002:.188-M 

A.C. No. 41-03751-05517 

Docket No. CENT 2002-249-M 

A.C. No. 41-03751-05518 

Docket No. CENT 2002-266-M 

A.C. No. 41-03751-05519 

Docket No. CENT 2003-18-M 

A.C. No. 41-03751-05520 

Docket No. CENT 2003-91-M 

A.C. No. 41-03751-05522 

Phelps Pit 

ORDER DENYING MOTION TO APPROVE SETTLEMENT 

Before: Judge Feldman 

These cases are before me upon petitions for assessment of civil penalty under section 

105(d) of the Federal Mine.Safety and Healih Act of 1977 (the Act). The Secretary has filed a 

motion to approve a settlement agreement and to dismiss these matters. A reduction in civil 

penalty from $48,262 to $12,065 is proposed. The parties propose that the proposed $12,065 

civil penalty will be paid in an initial installment of $2,500, with the remaining $9,565 to be paid 

in nineteen monthly installments. The proposed substantial reduction and extended payment . 

schedule are based on Big Buck Asphalt's reported financial condition that allegedly precludes 

its ability to pay a higher civil penalty. 

In support ofits assertion that payment of a higher penalty would impact on its ability to 

remain in business, the parties rely on a financial statement for the year ending February 28, 

2002, for Four G. Asphalt, Inc. 's d/b/a Big Buck Asphalt prepared by a certified public 

accountant. The financial statement furnished by the Secretary lacks the Accountant's Review 

101 
Report designated as page 1 in the Table of Contents. Consequently, the financial statement does 

not reflect whether the information contained therein was audited. In this regard, the financial 

statement notes that the reported amounts of revenues and expenses are based on management 

"estimates and assumptions." Unaudited financial statements do not provide a basis for 

establishing payment of a civil penalty will adversely affect a mine operator's ability to continue 

in business. See Spurlock Mining Co., Inc., 16 FMSHRC 697, 700 (April 1994). 

The financial statement reflects gross income of $1,276,154 and an unspecified "cost of 

revenue" of$1,304,010 resulting in a reported loss of$27,856. The financial statement reflects 

Pete Gallegos; Sr., is the President of Big Buck Asphalt. The financial statement further reflects 

that Pete Gallegos Paving, Inc., "is the parent owner'' and "primary customer" of Big Buck 

Asphalt. Javalina Ready-Mix, Inc., also owned by Pete Gallegos Paving, Inc., also is a 

significant customer of Big Buck Asphalt. 

I am unable to approve the settlement terms without additional information concerning 

the relationship between Big Buck Asphalt and Pete Gallegos Paving, Inc. Specifically, 

IT IS ORDERED that the parties provide, within 21 days of this Order, additional information 

and financial documentation concerning whether the financial condition of Pete Gallegos Paving, 

Inc., is a relevant consideration in determining whether there is a financial hardship that justifies 

the structured payment schedule and substantial reduction in the civil penalty proposed by the 

parties. The information should include a complete list of the corporate officers and management 

personnel of each corporation and a description of their responsibilities and job duties. The 

parties may provide any additional information they deem relevant. All financial documentation 

submitted should be audited. Accordingly, the Motion to Approve Settlement IS DENIED. If 

sufficient information to support the proposed settlement is not provided within 21 days, these 

matters will be scheduled for hearing. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 

525 South Griffin Street, Suite 501, Dallas, TX 75202 

Pete Gallegos, Sr., President, Big Buck Asphalt, 4320 Trade Center Blvd., Laredo, TX 78041, 

Donato D. Ramos, Esq., Attorney At Law, Walker Plaza, Suite 100, 5810 San Bernardo Ave., 

Laredo, TX 78041 

102 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEY ARD #280 

DENVER, CO 80204-3582 

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

ROBERT G. JUNGERS, 

Complainant 

V. 

U.S. BORAX, INC., 

Respondent 

February 26, 2003 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2002-532-DM 

WEMD02-13 

Mine I.D. 04-05363 

Boron Operations 

PREHEARING ORDER 

This proceeding was brought by Robert G. Jungers against U.S. Borax, Inc., under 

section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

("Mine Act") and 29 C.F.R.§ 2700.40 et seq. Mr. Jungers alleges, in part, that the actions of Joe 

Ellison in taking down "illustrated clean-up areas designated to each crew" that was taped on a 

window put him "in a potentially hostile work place, heaped on dysfunctional stress, and was 

tort." Jungers states that Ellison took this action because Jungers had spend time with OSHA 

compliance officers. In its answer, U.S: Borax denies Mr. Jungers allegations and maintajns that 

he has not stated a claim that can be remedied under section 105(c)(3) of the Mine Act. 

It is important for Mr. Jungers and U.S. Borax to understand the limits of my jurisdiction. 

I do not have authority to determine whether any actions taken against Mr. Jungers by U.S. Borax 

were unfair and unreasonable unless such actions violated the anti-discrimination provisions of 

the Mine Act at 30 U.S.C. § 815(c). Under that provision, a mine operator is prohibited from 

discriminating against a miner because he complained about safety or health conditions at the 

mine or refused to perform a task that he reasonably and in good faith believed presented a 

hazard to his safety or health. A miner's safety complaints or actions are known as "protec-te,4 ... , 

activity." A mine operator may not take adverse action against a miner for such protected 

activity. 

If the parties are unable to settle the case and if the case is not otherwise dismissed,, a . . .. 

formal hearing will be held. The issues at the hearing will include whether U.S. Borax 

discriminated against Mr. Jungers. At a hearing, Mr. Jungers will be required to .present evidence 

that he engaged in protected activity and that U.S. Borax's adverse actions were motivated at 

least in part by that protected activity. U.S. Borax may attempt to rebut Mr. Jungers' case at the 

hearing by presenting evidence that either no protected activity occurred, no adverse actions were 

taken, or that the actions taken with respect to Mr. Jungers were in no part motivated by the 

protected activity. If U.S. Borax is unable to present such evidence, it may present evidence that 

the actions it took with respect to Jungers were also motivated by unprotected activities and that 

it would have taken these actions for the unprotected activity alone. 

103 
The Federal Mine Safety and Health Review Commission is not part of the Department of 

Labor's Mine Safety and Health Administration (MSHA). Section 105(c)(3) of the Mine Act 

authorized Mr. Jungers to file this case on his own behalf. This provision provides him with an 

opportunity to try to establish that he was discriminated against. Consequently, this case is not 

an appeal ofMSHA's decision not to file a discrimination complaint on behalf of Mr. Jungers, 

but it is a new, independent proceeding brought by Mr. Jungers on his own behalf. I do not have 

the authority to review MSHA's investigation to determine whether it was competent or to 

determine whether MSHA' s decision to not bring a case was defensible. I do not have a copy of 

MSHA's investigation file in this matter. Neither MSHA nor the Secretary of Labor is a party in 

this proceeding. If Mr. Jungers and U.S. Borax are not able to settle this case and it is not 

dismissed, Mr. Jungers will be required to present evidence at a hearing to establish that U.S. 

Borax discriminated against him in violation of section 105( c) of the Mine Act, as described 

above. 

1. In order to encourage the parties to settle this case, counsel for U.S. Borax shall 

contact Mr. Jungers to discuss settlement. The parties shall confer as often as necessary to 

negotiate a settlement. If the parties are unable to settle the case, they shall attempt to narrow the 

issues, enter into stipulations, and discuss proposed hearing dates. 

2. On or before March 27, 2003, the parties shall initiate a conference call with me to 

discuss the status of the case, potential hearing dates, and other matters that they wish to discuss. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Robert G. Jungers, ILWU, 24001 Chaparral Avenue, Boron, CA 93516-1301 

Robert G. Jungers, 8501 Ironwood Ave., Calif City, CA 93505-3209 

David A. Wimmer, Esq., Swerdlow, Florence, Sanchez, Swerdlow & Wimmer, 9401 Wilshire 

Blvd., Suite 828, Beverly Hills, CA 90212-2910 

RWM 

1 04 * U.S. GOVERNMENT PRINTING OFFICE: 2003 ~185701