APRIL 2005 

COMMISSION DECISIONS AND ORDERS 

04-18-2005 James Carney Construction WEST 2005-51-M Pg.353 

04-20-2005 Jim Walter Resources, Inc. SE 2005-182 Pg.356 

04-20-2005 DiCaperl Minerals Corporation WEST 2005-216-M Pg.359 

04-26-2005 Georges Colliers, Incorporated EAJ2002-2 Pg.362 

... -.......... 

ADl\11NISTRA TIVE LAW .JUDGE DECISIONS 

04-07-2005 Weirich Brothers, Inc. CENT 2004-211-M Pg. 379 

04-07-2005 CKC Materials Division WEST 2003-268-M Pg.392 

04-15-2005 Harvey W. Buche Road Building Inc. WEST 2004-397-M Pg.395 

04-22-2005 Sec. Labor on behalf of Mark Gray v. 

North Star Mining, Inc. & Jim Brummett KENT 2001-23-D Pg.398 

04-28-2005 Vernon Holden v. Ross Island Sand & Gravel WEST 2004-264-DM Pg.400 

04-29-2005 Lone Mountain Processing, Inc. KENT 2004-164 Pg.414 

i 

APRIL 2005 

, 

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

No cases were filed in which Review was denied during the month of April 

ii 

COMl\fiSSION DEOSIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

N.1INE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 18, 2005 

Docket No. WEST 2005-51-M 

JAMES CARNEY CONSTRUCTION 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners 

DIRECTION FOR REVIEW AND ORDER 

BY THE CO:M1v1ISSION: 

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

1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act"). On January 28, 2005, Chief Administrative 

Law Judge Robert Lesnick issued to James Carney Construction ("Carney") an Order to Show 

Cause for failing to answer the Secretary of Labor's petition for assessment of penalty. On 

March 21, 2005, Chief Judge Lesnick issued an Order of Default dismissing this civil penalty 

proceeding for failure to respond to the show cause order. 

On March 28, 2005, the Commission received a handwritten correspondence from 

Carney's owner, Jim Carney, which we construe to be a timely petition for discretionary review. 

In that petition, Jim Carney states that he did not receive the show cause order and that he 

opposes the citation on the merits. Letter at 1. The Secretary does not oppose the petition for 

review and states that the case should be remanded to the judge so that the parties can litigate 

whether there was a violation. 

The judge's jurisdiction over this case terminated when he issued his decision on March 

21, 2005. 29 C.F.R. § 2700.69(b). Relief from a judge's decision may be sought by filing a 

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

§ 2700.70(a). We deem Carney's correspondence to be a timely filed petition for review, which 

we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 (Sept. 1988). 

27 FMSHRC 353 
In evaluating requests to reopen final orders, the Commission has found guidance in Rule 

60(b) in the Federal Rules of Ci vii Procedure under which, for example, a party could be entitled 

to relief from a final order of the Commission on the basis of inadvertence or mistake. See 29 

C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the 

Federal Rules of Civil Procedure"); Highlands Mining & Processing Co., 24 FMSHRC 685, 686 

(July 2002). We have also observed that default is a harsh remedy and that, if the defaulting 

party can make a showing of good cause for a failure to timely respond, the case may be 

reopened and appropriate proceedings on the merits permitted. See Coal .Prep. Servs., Inc. , 17 

FMSHRC 1529, 1530 (Sept. 1995). 

Based on the present record, it is not clear whether Carney received the show cause order. 

In the interest of justice, we vacate the judge's March 21 order and remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for Carney's 

failure to timely respond to the judge's show cause order, and for further proceedings as 

appropriate. See RBS, Inc., 26 FMSHRC 751 (Sept. 2004). 

27 FMSHRC 354 
Direction 

James Carney, Owner 

James Carney Construction 

P.O. Box 928 

Glasgow, MT 59230 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

601 New Jersey Avenue, Suite 9500 

Washington, D.C. 20001 

27 FMSHRC 355 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

JIM: WALTER RESOURCES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 20, 2005 

Docket No. SE 2005-182 

A.C. No. 01-01322-47081 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On March 3, 2005, the Commission received from Jim 

Walter Resources, Inc. ("JWR") a letter from the company's counsel that we construe as a 

motion to reopen a penalty assessment that became a final order of the Commission pursuant to 

section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On January 4, 2005, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued a proposed penalty assessment (A.C. No. 01-01322-47081) to JWR's No. 5 

Mine in Tuscaloosa, Alabama. In its motion, JWR states that it received MSHA's proposed 

assessment on January 14, 2005, and that on February 7, 2005, it placed in the mail a contest of 

several of the orders and citations included in the proposed assessment. Mot. at 1. JWR asserts, 

however, that the contest was mistakenly sent to the Department of Labor's Division of Coal 

Mine Worker's Compensation rather than MSHA's Office of Assessments. Id. The contest was 

returned to JWR by February 14, 2005, but by that time, the proposed assessment had become a 

final Commission order. Id. The Secretary states that she does not oppose JWR's request for 

relief. 

27 FMSHRC 356 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

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

See Coal Prep. Servs., Inc. , 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed JWR's motion, in the interests of justice, we remand this matter to the 

Chief Administrative Law Judge for a determination of whether good cause exists for JWR's 

failure to timely contest the penalty proposal and whether relief from the final order should be 

granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the 

Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

~~ MichaelF·~ 

'~ 

27 FMSHRC 357 
Distribution 

Guy R. Hensley, Esq. 

Jim Walter Resources, Inc. 

P.O. Box 133 

Brookwood, AL 35444 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22°d Floor 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

601 New Jersey Avenue, Suite 9500 

Washington, D.C. 20001 

27 FMSHRC 358 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

AD:rvIINISTRA TION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 20, 2005 

Docket No. WEST 2005-216-M 

A.C. No. 05-00438-47837 

DICAPERL MINERALS CORPORATION 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2000) ("Mine Act"). On March 8, 2005, the Commission received from Dicaperl 

Minerals Corporation ("Dicaperl") a motion made by counsel to reopen a penalty assessment that 

had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed 

penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed 

penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment 

is deemed a final order of the Commission. 30 U.S.C. § 815(a). 

On September 3, 2004, the Department of Labor's Mine Safety and Health 

Administration ("MSHA") issued Citation No. 6300457 to Dicaperl's El Grande Plant in 

Antonito, Colorado. Dicaperl timely contested the citation, which is currently the subject of 

Docket No. WEST 2004-51 1-RM, on stay before Commission Administrative Law Judge 

Richard Manning. On January 12, 2005, MSHA issued to Dicaperl a proposed penalty 

assessment for Citation No. 6300457 (A.C. No. 05-00438-47837). In its motion, Dicaperl states 

that the proposed assessment was subsequently misplaced and was not forwarded to counsel in 

time for the proposed penalty to be timely contested. Mot. at 2. The Secretary states that she 

does not oppose Dicaperl' s request for relief. 

27 FMSHRC 359 
We have held that in appropriate circumstances, we possess jurisdiction to reopen 

uncontested assessments that have become final Commission orders under section l05(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("JWR"). In evaluating requests to 

reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief 

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R. 

§ 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

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

See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

Having reviewed Dicaperl' s motion, in the interests of justice, we remand this matter to 

the Chief Administrative Law Judge for a determination of whether good cause exists for 

Dicaperl's failure to timely contest the penalty proposal and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

27 FMSHRC 360 
Distribution 

Karen L. Johnson, Esq. 

Jackson Kelly, PLLC 

1099 18th Street, Suite 2150 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

John Rainwater, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

P.O. Box 46550 

Denver, CO 80201-6550 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety and Health Review Commission 

601 New Jersey Avenue, Suite 9500 

Washington, D.C. 20001 

27 FMSHRC 361 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

:M1NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

GEORGES COLLIERS, 

INCORPORATED 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

April 26, 2005 

Docket No. EAJ 2002-2 

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners 

DECISION 

BY THE COMMISSION: 

This case involves an application for an award of attorney's fees and other expenses by 

Georges Colliers, Inc. ("GCf'), pursuant to the Equal Access to Justice Act ("EAJA"), 5 U.S.C. 

§ 504, on the grounds that the Secretary of Labor's demands were substantially in excess of the 

decision of the judge and unreasonable when compared to that decision. The matter was 

previously before the Commission, which vacated and remanded the decision of the 

administrative law judge. Georges Colliers, Inc., 26 FMSHRC 1 (Jan. 2004) ("Georges Colliers 

f'), vacating and remanding 24 FMSHRC 572 (June 2002) (ALT) ("ALI f'). On remand, the 

judge concluded that the penalties proposed by the Secretary were neither excessive nor 

unreasonable and that, therefore, GCI was not entitled to fees under the EAJA. Georges Colliers, 

Inc. , 26 FMSHRC 371, 376 (Apr. 2004) (ALT) ("ALJ If'). GCI appealed the judge's 

determination, and the Commission issued a direction for review limited to the issues raised by 

the judge's remand decision. 

27 FMSHRC 362 
I. 

Factual and Procedural Background 

A. The Mine Act Proceeding 

GCI began operations in the early 1990's when it took over three coal mines of two 

financially troubled Oklahoma coal operators. 26 FMSHRC at 2. In 1998, Craig Jackson 

became GCI' s president. Id. A more complete summary of the background facts is found in the 

judge's decision in the underlying Mine Act proceeding. Georges Colliers, Inc., 23 FMSHRC 

1346 (Dec. 2001) (AU). 

The inspections giving rise to the Mine Act proceeding began in November 1998 and 

continued until July 2000. See id. at l 392-1416. Ultimately, the Mine Act proceeding involved 

more than 50 dockets that included 559 citations issued between 1998 and 2000. 1 26 FMSHRC 

at 2. GCI stipulated with the Secretary to all issues raised by the citations and penalties except 

whether the amount of the proposed penalty assessments would affect GCI' s ability to continue 

in business. Id. Subsequently, a hearing was held on this issue on April 10-12, 2001. Id. 

After weighing all the penalty criteria and the evidence relating to the effect of the 

proposed penalties on GCI' s ability to continue in business, the judge assessed penalties totaling 

$72,398, reduced from the Secretary's proposed penalties of $332,701. Id. at 1395, 1416. 

Neither GCI nor the Secretary appealed the judge's decision to the Commission. 

B. The EAJA Proceeding ("AL.If') 

On January 25, 2001, GCI filed its Application for Fees and Expenses in the amount of 

$45,019.36, pursuant to 5 U.S.C. § 504(a)(4). 26 FMSHRC at 3; GCI EAJA Appl. at 10. In 

support of its application, GCI asserted that the Secretary's demands were excessive, as 

evidenced by the judge's 77% to 80% reductions in the Secretary's proposed penalties, and 

unreasonable when compared to the judge's decision.2 The Secretary opposed the application, 

1 Also included in the Mine Act proceeding were nine civil penalty assessments issued to 

three agents of GCI who were charged under section l lO(c), 30 U.S.C. § 820(c), for knowingly 

violating various safety standards. 26 FMSHRC at 2. The violations and penalties associated 

with these individuals are no longer involved in the EAJA proceeding. Id. at 5 n.4. 

2 Section 504(a)(4) of EAJA provides: 

If, in an adversary adjudication arising from an agency action to 

enforce a party's compliance with a statutory or regulatory 

requirement, the demand by the agency is substantially in excess of 

the decision of the adjudicative officer and is unreasonable when 

27 FMSHRC 363 
stating that GCI did not submit financial information during the penalty assessment phase of the 

proceeding. Sec. Opp'n to Appl. at 1-2. The Secretary asserted that during subsequent 

settlement negotiations GCI requested either complete removal of penalties or imposition of 

nominal penalties, neither of which were pennitted under the Mine Act. Id. at 2-3. The 

Secretary further argued that the applicants committed willful violations of the Mine Act and 

acted in bad faith. Id. at 5-8. Finally, the Secretary argued that penalties were not unreasonable 

when compared with the judge's decision and that demands by the Mine Safety and Health 

Administration ("MSHA") were not substantially in excess of the penalties assessed. Id. at 8-17. 

The judge denied the EAJA application on June 14, 2002. 24 FMSHRC at 578. GCI 

filed a petition for discretionary review of the judge's decision and we granted that petition. 

C. The Commission's Decision ("Georges Colliers!'') 

The Commission vacated the judge's decision and remanded the proceeding for further 

consideration. 26 FMSHRC at 16. The Commission concluded that the judge had applied the 

incorrect legal test of "substantial justification," rather than evaluating the Secretary's penalty 

proposals under section 504(a)(4) of EAJA, 5 U.S.C. § 504(a)(4), to determine whether they 

were excessive and unreasonable.3 ld. at 8-9. On remand, the Commission instructed the judge 

to determine whether the Secretary's proposed penalties were "substantially in excess" of the 

penalties finally assessed in the Mine Act proceeding. Id. at 9-10. The Commission further 

instructed the judge to consider whether the government's demand was reasonable when 

compared with the judge's decision in the Mine Act proceeding. Id. at 10-11. Guided by its 

decision in L & T Fabrication & Constr., Inc., 22 FMSHRC 509 (Apr. 2000), the Commission 

stated that, in examining the reasonableness of the Secretary's demand, a judge must ascertain 

whether she matched the penalties "to the actual facts and circumstances [of] the case." Id. at 11 

(citation omitted). The Commission directed the judge on remand to consider whether the 

Secretary responded to GCI' s submission of financial data indicating whether GCI' s payment of 

the proposed penalties would have affected its ability to remain in business. Id. at 14. Finally, 

compared with such decision, under the facts and circumstances of 

the case, the adjudicative officer shall award to the party the fees 

and other expenses related to defending against the excessive 

demand, unless the party has committed a willful violation of law 

or otherwise acted in bad faith, or special circumstances make an 

award unjust . . .. 

5 U.S.C. § 504(a)(4) (emphasis added). The term "demand" is defined as "the express demand 

of the agency which led to the adversary adjudication." 5 U.S.C. § 504(b)(l)(F). 

3 The Commission noted that this proceeding involved only the second claim presented 

to it under the 1996 amendments to EAJA, the first claim being one decided by the Commission 

in L & T Fabrication & Constr., Inc., 22 FMSHRC 509 (Apr. 2000). 26 FMSHRC at 8. 

27 FMSHRC 364 
the Commission instructed the judge, in the event that he determined the proposed penalties were 

excessive and unreasonable, to examine whether GCI committed willful violations or acted in 

bad faith, or whether special circumstances made an award unjust. Id. at 15. 

D. The Judge's Decision on Remand ("ALI If") 

In his decision, the judge initially addressed whether, under the Commission's decision in 

L & T Fabrication, the proposed penalties were substantially in excess of the amounts ultimately 

imposed. 26 FMSHRC at 372. He noted that he ultimately reduced the proposed penalties by 

78% but that "more than the reduction and the proposed assessments must be considered." Id. at 

373. He further stated that he had to consider the context in which the penalty proposals arose 

and were litigated, noting that the Secretary reduced her proposed penalties by 50% following 

GCI' s submission of documentary evidence concerning its financial status. Id. With regard to 

the settlement offer, the judge noted that he had refused to rely on "undocumented" settlement 

offers in his prior decision, but that on remand there was no question that the Secretary had made 

the offer, as evidenced by GCI counsel's letter rejecting the offer. Id. at 374 n.5. Considering 

the settlement offer, the judge concluded that the government's "demand" was reduced by 43%, 

which did not establish a substantial disparity between the demand and the final assessments. Id. 

at 373-74. The judge reiterated a finding from his prior decision that the Secretary did not 

propose onerous penalties in order to extract a speedy settlement. Id. at 374. The judge 

concluded that the proposed penalties were not substantially in excess of the assessed penalties. 

Id. 

In addition to finding that the proposed assessments were not substantially in excess of 

the assessed penalties, the judge addressed whether the proposed penalties were reasonable. Id. 

The judge reviewed GCI' s submission of financial data during the penalty proposal process and 

the Secretary's response to determine whether the Secretary acted reasonably in proposing a 

penalty reflective of "the actual facts and circumstances of the case." Id. , quoting L & T 

Fabrication, 22 FMSHRC at 514. Then, the judge examined the procedures in the Secretary's 

Program Policy Manual ("PPM"), which set out a process that provides an operator the 

opportunity to submit financial data to MSHA to determine whether proposed penalties should 

be reduced. 26 FMSHRC at 374. The judge noted that, by letter dated June 27, 2000, GCI 

submitted financial data and requested that MSHA review the company's financial status with 

regard to three citations and all other outstanding proposed assessments. Id. at 374-75. The 

judge found that the letter was timely with respect to only a few of the proposed assessments. Id. 

at 375. The judge further found that there was no evidence that MSHA's Assessment Office 

responded, as required by the PPM. Id. However, the judge concluded that the Secretary 

followed the "spirit" of the PPM by reviewing the data and proposing a 50% reduction in the 

proposed penalties in a settlement offer. Id. 

In sum, the judge concluded that the Secretary's offer to settle represented a reasonable 

effort to match the penalties to the facts and circumstances and that the offer was a logical and 

efficient way for the Secretary to respond. Id. The judge noted that, while the Secretary's 

27 FMSHRC 365 
reduction was not as great as the reduction he ordered, he had the benefit of sworn hearing 

testimony that was unavailable to the Secretary and that he had to consider other penalty criteria·. 

Id. at 375-56. For these reasons, the judge concluded that the penalties the Secretary 

"effectively" proposed were reasonable. Id. at 376. 

Finally, the judge addressed whether GCI should be denied an award because it 

committed willful violations or acted in bad faith. Id. at 376 n.7. The judge rejected the 

Secretary's position that the number of unwarrantable and significant and substantial (S&S) 

violations, in addition to its history of prior violations, was evidence of "willful ... bad faith 

actions." Id. The judge further noted that GCI counsel's conduct did not make an award unjust 

because she used the hearing to make her case that GCI's financial condition warranted larger 

penalty reductions than the Secretary was prepared to offer. Id. The judge concluded that 

counsel's "conduct was not such as to bar an otherwise valid award." Id. 

II. 

Disposition 

GCI initially argues that the proposed penalties of $332,701 were substantially in excess 

of the assessed penalties, totaling $72,398 - a reduction of 78%. GCI Br. at 4. GCI further 

argues that the Secretary's adherence to the proposed penalties, in light of GCI' s financial 

hardship, was unreasonable. Id. at 3-6. GCI asserts that it was instructed to send financial 

documents to MSHA but that the agency never responded. Id. at 7-8. GCI asserts that it should 

not be barred from fees for committing willful violations because it was never charged under 

section llO(d) of the Mine Act, 30 U.S.C. § 820(d).

4 Id. at 11-12. GCI continues that it did not 

act in bad faith, either in its conduct giving rise to the violations or in its conduct during 

litigation. Id. at 13. Finally, it asserts that there are no special circumstances that would justify 

the denial of an award, noting particularly that it would have accepted a settlement offer reducing 

the proposed penalties by 50% had the Secretary made such an offer. Id. at 13-14. 

The Secretary asserts that her demand in this proceeding was not excessive and that the 

judge correctly considered the Secretary's 50% settlement offer as her demand. S. Br. at 16-17. 

The Secretary argues that substantial evidence supports the judge's finding that the Secretary 

made a settlement offer of 50% of the proposed penalties. Id. at 20-25. The Secretary further 

argues that the penalty proposals were reasonable. Id. at 26-33. The Secretary asserts that the 

procedures in the PPM are not binding on her, and, even if they were, she was not required to 

reduce the proposed penalties based on the financial information submitted by GCI. Id. at 33-34. 

The Secretary also contends that GCI failed to comply with the procedures in the PPM and, 

alternatively, that GCI submitted financial data to MSHA through an informal procedure and that 

the Secretary responded to her consideration of that data with the settlement offer. Id. at 34-37. 

4 Section 1 IO(d) provides for criminal sanctions for, inter alia, "[a]ny operator who 

willfully violates a mandatory health or safety standard." 30 U.S.C. § 820(d). 

27 FMSHRC 366 
The Secretary concludes by contending that special circumstances make an award unjust 

and supports her position by pointing to the extensive number of citations and GCI's conduct 

during litigation of the case. Id. at 42-46. The Secretary argues that this proceeding is the type of 

case that Congress meant to exclude from an BAJA award. Id. at 42. The Secretary continues 

that, because GCI' s conduct reflects an attitude that it could repeatedly violate safety and health 

standards with impunity because of its financial condition, the case embodies the special 

circumstances that preclude an BAJA award. Id. at 44. 

In disposing of GCI's BAJA application, we begin by noting that there are three issues 

before the Commission: whether the Secretary's penalty proposals were substantially in excess 

of the decision of the administrative law judge; whether the proposed penalties were 

unreasonable when compared with the judge's decision; and whether special circumstances make 

an award unjust. See George Colliers I, 26 FMSHRC at 8-15; ALJ II, 26 FMSHRC at 372-76 & 

n.7. GCI must prevail on whether the proposed penalties were both excessive and unreasonable 

when compared to the judge's final decision. If GCI prevails on those two issues, it still must 

prevail on the issue of whether special circumstances would make an award of fees unjust.5 

A. Special Circumstances Make an Award Unjust 

In Georges Colliers I, the Commission noted that GCI committed 559 violations that 

repeatedly endangered the lives and safety of its miners, including 272 violations stipulated to be 

S&S, and that 39 violations were the result of its unwarrantable failure. 26 FMSHRC at 15. On 

remand, the judge stated, "[W]ere I required to rule, I would reject the Secretary's argument that 

the stipulated number of violations ... evidence GCI's 'willful ... bad faith actions."' 26 

FMSHRC at 376 (citations omitted). Thus, the judge reviewed the violations to determine 

whether GCI acted willfully or in bad faith; however, he did not consider GCI's pattern of 

violations in relation to the special circumstances exception. In examining GCI' s conduct, we 

conclude that the judge considered GCI's history of violations too narrowly. 

Section 504(a)(4) of EAJA states that a party who has been subjected to an excessive and 

unreasonable government demand is entitled to fees and expenses related to defending against 

the demand "unless the party has committed a willful violation of the law or otherwise acted in 

bad faith, or special circumstances make an award unjust." 5 U.S.C. § 504(a)(4). While the 

1996 amendments were designed to prevent the government from issuing a high demand as a 

way of pressuring small entities to agree to quick settlements, Congress also wanted "to ensure 

that the government is not unduly deterred from advancing its case in good faith." 142 Cong. 

Rec. S3242, S3244 (1996) (statement of Senator Bond). One way in which Congress did this 

was to exclude an award when special circumstances are present. Id. These special 

5 Nothing in the analytical framework of section 504(a)(4) dictates that these issues 

enumerated must be addressed sequentially as they appear in the statute. See L & T Fabrication, 

22 FMSHRC at 515 (Commission disposed of an application on the basis that the Secretary's 

penalty proposal was not unreasonable without resolving whether the proposal was excessive). 

27 FMSHRC 367 
circumstances "are intended to include both legal and factual considerations which may make it 

unjust to require the public to pay attorneys fees even in situations where the ultimate award is 

significantly less than the amount demanded."6 Id. "Special circumstances could include 

instances where the party seeking fees engaged in a flagrant violation of the law, endangered the 

lives of others, or engaged in some other type of conduct that would make the award of fees 

unjust." Id. 

The special circumstances exception in section 504(a)(4) has its genesis in 5 U.S.C. 

§ 504(a)(l) and 28 U.S.C. § 2412(d)(l)(A). Section 504(a)(l) provides that, in an administrative 

adjudication, a party that prevails in an action brought by the agency shall be awarded fees and 

other expenses "unless ... the position of the agency was substantially justified or that special 

circumstances make an award unjust." 5 U.S.C. § 504(a)(l). Section 2412(d)(l)(A) provides for 

an identical special circumstances exception to a fee award in proceedings in federal court when 

a party prevails over the government and the position of the government is not substantially 

justified. 28 U.S.C. § 2412(d)(l)(A). These sections, which predated the passage of the 1996 

amendments to EAJA and apply only to prevailing parties, offer additional guidance to the 

meaning and application of the special circumstances exception in section 504(a)(4). 

The House Report that accompanied EAJA, when it was enacted in 1980, stated the 

following with regard to the special circumstances exception to awards to prevailing parties in 

section 504(a)(l) and section 2412(d)(l)(A): 

Furthermore, the Government should not be held liable where 

"special circumstances would make an award unjust." This "safety 

valve" helps to insure that the Government is not deterred from 

advancing in good faith the novel but credible extensions and 

interpretations of the law that often underlie vigorous enforcement 

efforts. It also gives the court discretion to deny awards where 

equitable considerations dictate an award should not be made. 

H.R. Rep. No. 96-1418, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4953, 4990 (emphasis 

added). 

Several courts have addressed whether prevailing parties were precluded from recovering 

fees under the special circumstances provision in 28 U.S.C. § 2412(d)(l)(A). fu Oguachuba v. 

INS., 706 F.2d 93, 99 (2nd Cir. 1983), the court denied fees to an applicant who successfully 

challenged his incarceration by the Immigration and Naturalization Service ("INS"), stating, "In 

viewing applications for such awards in the context of general equitable principles, we are not 

required to limit our scrutiny to a single action or claim on which the applicant succeeded but 

6 In his remarks, Senator Bond also stated: "Since there will not be a conference report 

on [EAJA], this statement and a companion statement in the House should serve as the best 

legislative history of the legislation as finally enacted." 142 Cong. Rec. S3242. 

27 FMSHRC 368 
must view the application in light of all the circumstances." The court was particularly 

influenced by the fact that, although the applicant had successfully won his release from the INS 

through a habeas corpus action, he had repeatedly violated U.S. immigration laws prior to his 

incarceration. Id. The court concluded, "In classic equity terms, Oguachuba is without clean 

hands." Id. 

In analyzing special circumstances under section 2412(d)(l)(A), another court has 

commented that the "theme of 'unclean hands' pervades the jurisprudence of 'special 

circumstances' under EAJA." Air Transport Assoc. of Canada v. FAA, 156 F.3d 1329, 1333 

(D.C. Cir. 1998). See also U.S. Dept. of Labor v. Rapid Robert's, Inc., 130 F.3d 345, 347-49 

(8th Cir. 1998) (court denied attorney's fees to a prevailing party that committed statutory 

violations but was relieved of paying penalties because the agency's implementing regulations 

were invalidated); Taylor v. U.S., 815 F.2d 249, 252-54 (3rd Cir. 1987) (court denied attorney's 

fees to a prevailing party who took advantage of government misconduct that he later 

successfully challenged and that became the basis for his EAJA claim). 

Here, GCI committed 559 violations involving penalties that were at issue in the Mine 

Act proceeding. In addition, GCI had committed over 384 violations during the 2-year period 

prior to the proceeding that gave rise to the EAJA application. 23 FMSHRC at 1391. The judge 

concluded that this was "a large history" for a small operator. Id. at 1392. In the Mine Act 

proceeding, 272 of the 559 violations were stipulated to be S&S, and 39 of the violations were 

stipulated to be due to GCI's unwarrantable failure. In addition, there were nine citations in 

which supervisory agents of GCI were found to have knowingly engaged in violations of 

standards. Id. at 1356-86. 

We conclude that GCI's record of violations brings this proceeding well within the 

special circumstances exception to section 504(a)(4). GCI's conduct reflects "flagrant 

violation[s]" of the Mine Act over an extended period that resulted in numerous violations that 

frequently "endangered the lives" of its miners, as evidenced by the S&S designations of a 

substantial number of citations. In short, GCI's conduct is the type of misconduct that Congress 

deemed sufficient to disqualify an applicant from an award. 

Further, based on the traditional equitable principles that courts have applied to the 

special circumstances exception to deny fees to prevailing parties under 28 U.S.C. 

§ 2412(d)(l)(A), denial of fees in this proceeding is further warranted because GCI, like the 

applicant in Oguachuba v. INS, 706 F.2d at 99, has "unclean hands." We note in particular 

GCI's extensive history of violations associated with this proceeding set forth above. 

Finally, in weighing the equities in this proceeding, we can consider the nature and 

consequence of GCI's success in the underlying Mine Act proceeding. See Rapid Robert's, 130 

F.3d at 349. In the merits proceeding, GCI's litigation strategy was to stipulate to the violations 

charged and to all the penalty criteria in section l lO(i), 30 U.S.C. § 820(i), while preserving only 

its position to contest its ability to pay the proposed penalties and continue in business. 23 

27 FMSHRC 369 
FMSHRC at 1351. Ultimately, upon considering the economic defense with the other penalty 

criteria, the judge reduced the proposed penalties by 78%. The court's comments on an applicant 

in similar circumstances in Rapid Robert's is instructive: 

Here, the district court relieved Rapid Robert's of over seven times 

the amount of penalties which actually resulted from the 

invalidated regulations. Rapid Robert's has reaped a windfall by 

escaping its duty to pay for clear violations of a valid statute. To 

add to that windfall by requiring the government to pay attorneys' 

fees and expenses would be patently unjust. 

130 F.3d at 349. Compare U.S. v. One 1997 Toyota Land Cruiser, 248 F.3d 899, 906 (9th Cir. 

2001) (under 28 U.S.C. § 2412(d)(l)(D), the judicial counterpart to section 504(a)(4), the court, 

in remanding for a determination of the existence of willful violations, bad faith, or special 

circumstances, noted that the fee applicant "has not been charged with any illegality, and she has 

asserted an 'innocent owner' defense"). But for its economic circumstances, GCI should justly 

have been held accountable for a much greater penalty, having made no allegations of its own 

innocence or the oppressive or abusive government conduct BAJA intended to address. We thus 

conclude that to grant GCI fees in the circumstances of this case would create a "windfall," as 

well, and that therefore we deny GCI's request for fees and costs.7 

fu Georges Colliers I, we established that in order to recover fees, an operator must show 

that the Secretary's demand was both excessive and unreasonable. We now address those two 

issues in order. While denial of GCI's EAJA application could rest solely on our determination 

of the special circumstances exception, the judge's decision on remand in AU II, in light of our 

decision in Georges Colliers I, merits our further consideration. 

B. Whether the Proposed Assessments Were Excessive 

On remand, the judge concluded that there was not a substantial disparity between the 

Secretary's demands and the final penalty assessments. 26 FMSHRC at 373-74. fu reaching that 

conclusion, the judge relied on a settlement offer from the Secretary, which purportedly reduced 

the original assessments by 50%. Id. GCI appealed the judge's decision because it contends that 

the judge should not have relied on the 50% settlement offer. PDR at 2-6. 

7 In light of our disposition that fees be denied because of special circumstances in the 

proceeding, we do not reach the issues of whether GCI acted in bad faith or engaged in willful 

violations. 

27 FMSHRC 370 
In addressing whether the Secretary's demand was substantially8 in excess of the penalty 

imposed in Georges Colliers I, the Commission noted that the test for evaluating the demand 

"should not be a simple mathematical comparison." 26 FMSHRC at 7, quoting Joint Managers 

Statement of Legislative History and Congressional Intent, 142 Cong. Rec. S3242, S3244 (Mar. 

29, 1996) ("Joint Statement''). Further, consistent with this intent, the Commission has held that 

whether an applicant meets the "substantially in excess" test will depend on the facts and 

circumstances of each case. L & T Fabrication, 22 FMSHRC at 514. Finally, the Commission 

has considered it significant whether "the Secretary proposed an onerous penalty in order to 

extract a speedy settlement" because that was one of the agency practices that EAJA was 

designed to redress. 26 FMSHRC at 10. 

In considering whether the Secretary's demand was substantially in excess of the decision 

of the judge, we must first identify the Secretary's "demand." In Georges Colliers I, the 

Commission rejected consideration of the Secretary's purported 50% settlement offer because, 

like the judge (24 FSMHRC at 576-77), the Commission was "understandably reluctant 'to delve 

into [the parties'] settlement discussions,' particularly given the lack of 'an undisputed, fully 

documented settlement proposal."' 26 FMSHRC at 14 n.21.9 In addition, the Commission 

further noted the statutory definition of "demand" at 5 U.S.C. § 504(b)(l)(F) (defining "demand" 

as the "express demand of the agency which led to the adversary adjudication"), and the lack of 

any written revised penalty proposals from the Secretary. 26 FMSHRC at 14 n.21 

Notwithstanding the Commission's rejection of any consideration of settlement-related 

material in Georges Colliers I, the judge relied on the letter from GCI' s counsel to the 

Secretary's counsel in which she refers to "the Secretary [sic] last offer to settle at the rate of fifty 

percent (50%)." PDR, Ex. A. The judge's consideration of this letter was in error. The 

Commission's prior disposition of consideration of settlement-related materials constitutes the 

law of the case. See Douglas R. Rushford Trucking, 24 FMSHRC 648, 652 (July 2002). In fact, 

the Secretary relied on the same letter from GCI' s counsel with no docket numbers and a 

reference to a "ruling" from Judge Melick (rather than Judge Barbour, who presided over the 

Mine Act proceeding) that was before the Commission in Georges Colliers 1. 10 See Sec. Opp'n 

8 In L & T Fabrication, the Commission held that "substantially" when used in the 

phrase "substantially in excess," means "[c]onsiderable in amount, value or the like; large." 22 

FMSHRC at 514 n.5 (citation omitted). 

9 The Commission's refusal to consider the purported settlement offer in Georges 

Colliers I was in connection with the reasonableness of the penalties. Id. at 14. However, the 

rationale for not considering the settlement offer in relation to the reasonableness of the offer 

applies with equal force to our consideration of whether the Secretary's demand was excessive. 

10 The Secretary's brief addresses the Commission's consideration of GCI' s letter and 

whether it reflected a 50% offer as a substantial evidence question. S. Br. at 21-25. This is the 

sort of evidentiary review of settlement discussions that the Commission was trying to avoid in 

27 FMSHRC 371 
to Appl. at 12, 15. There has been no legal or factual change in the proceeding that would 

warrant revisiting this issue. In short, in agreement with GCI, we conclude that the judge's 

consideration of the letter (26 FMSHRC at 373-374 & n.5) was in error. Any examination of the 

Secretary's "demand," in the circumstances of this case, should be limited to her proposed 

penalty assessments and those actually imposed by the judge. 11 

The instant proceeding presents an initial demand that was reduced by 78% by the judge's 

decision. In addition to this mathematical comparison of the Secretary's demand and the judge's 

decision, our analysis also includes an examination of the facts and circumstances surrounding 

the penalty proposals. The judge found and we agree that there is no evidence of inappropriate 

motivation on the part of the Secretary in proposing an initially high demand to extract a speedy 

settlement. 26 FMSHRC at 374. In this regard, we cannot conclude that the proposed penalties, 

totaling $332,701, were onerous. While the demand figure on its face is large, it represents the 

cumulative penalties for 559 violations accumulated over a period of 2 years. 

The Secretary further argues that the Commission should look at the proposed penalty 

assessments individually, rather than at the total assessed penalties. S. Br. at 17-18. Examining 

the proposed penalties in individual dockets presents a different, but more representative, picture 

than does examining the penalties in toto. As the Secretary indicates, more than half of the 

citations involve penalties at the lowest level - $55 - permitted by the regulations, 30 C.F.R. 

§ 100.4. Our examination of the total penalties has been largely driven by the fact that GCI has 

not sought fees for challenging penalties for individual citations. See GCI EAJA Appl. at 5-6. 

This approach was borne out of the circumstances of the underlying Mine Act proceeding in 

Georges Colliers I. While the Secretary suggests that GCI' s position that the letter should not be 

considered is based on "[s]nippets of legislative history" (S. Br. at 26) (citation omitted), the 

·Commission's approach to this issue in Georges Colliers I was based on the statutory definition 

of "demand" in 5 U.S.C. § 504(b)(l)(F) and sound policy reasons for not delving into parties' 

settlement discussions. See 26 FMSHRC at 14 n.21. 

11 The Secretary reiterates an argument, which was considered and rejected in Georges 

Colliers I, that the Commission should compare the penalties proposed by the Secretary 

($332,701) to the maximum amounts that the Secretary was authorized by regulation to impose 

($31,045,000), rather than to the penalties actually imposed by the judge ($72,298). S. Br. at 18-

20 & n.6. However, the Commission considered and rejected that issue in Georges Colliers I. 

"[T]he judge erred when he compared the proposed penalties to the maximum permissible 

penalty. The benchmark should have been the penalties that the judge finally imposed - a figure 

that was substantially lower than the dollar amount he used." 26 FMSHRC at 9, citing L & T 

Fabrication, 22 FMSHRC at 514-15. Indeed, the statute is clear on this point: "the demand by 

the agency is substantially in excess of the decision of the adjudicative officer." 5 U.S.C. 

§ 504(a)(4). 

27 FMSHRC 372 
which GCI raised a single global defense to all of the citations issued against it.12 23 FMSHRC 

at 1351. The Secretary responded to GCI's position by initially addressing, in the EAJA 

proceeding, "the total proposed penalty assessments." S. Br. (Georges Colliers I) at 18. 

Notwithstanding the Commission's prior focus on the total penalties, it is also appropriate to 

examine individual penalty amounts. Based on our review of the individual penalties proposed 

at the $55 level, we conclude, for this additional reason, that those penalties are not onerous and 

thus do not reflect an attempt by the Secretary to propose a high penalty in order to push GCI to 

settlement.13 

In sum, based on the foregoing considerations, we conclude that the Secretary's penalty 

proposals, when compared to the judge's decision, were not excessive and that, for this reason, 

GCI's EAJA application should also be denied. 

C. Whether the Proposed Assessments Were Reasonable 

In Georges Colliers I, the Commission remanded to the judge the determination whether 

the proposed penalties were unreasonable. More particularly, the Commission instructed the 

judge to determine whether the Secretary sufficiently considered evidence of GCI's ability to 

continue in business in light of the proposed penalties. 26 FMSHRC at 14. On remand, the 

judge found that GCI had not fully complied with the procedures in MSHA's PPM in submitting 

financial data; nevertheless, the judge further found that the Secretary followed the spirit of the 

PPM by responding with a settlement offer to reduce the penalties by 50%. 26 FMSHRC at 375. 

On appeal, GCI objects to the judge's consideration of GCI's letter that purportedly rejected the 

Secretary's settlement offer to reduce the proposed penalties in the merits proceeding by 50%. 

PDR at5-8. 

The judge again relied on the same GCI letter that was discussed in relation to whether 

the Secretary's demand was excessive. That reliance is equally misplaced in this prong of his 

analysis. Indeed, the Commission in Georges Colliers I directly addressed consideration of the 

purported settlement offer in relation to the Secretary's response to GCI' s submission of financial 

data under the PPM. See 26 FMSHRC at 14 n.21. The Commission stated: '"The EAJA defines 

'demand' as a static concept and not one that metamorphoses over the course of settlement 

negotiations.' Accordingly, the lack of any written revised demand from MSHA dictates that the 

12 The individual citations, proposed penalties, and penalties that were finally assessed by 

the judge after considering GCI's economic defense are fully set out in the Mine Act proceeding. 

23 FMSHRC at 1398-1416. 

13 As we have noted above, our examination of individual penalties is made more 

complicated by a consolidated docket with multiple citations. Nevertheless, in Georges Colliers 

I, in analyzing whether the Secretary had made a reasonable effort to match the penalty to the 

facts and circumstances of the case, the Commission examined the process followed by the 

Secretary in each docket in her Petition for Assessment of Penalty. 26 FMSHRC at 11 & n.13. 

27 FMSHRC 373 
judge only consider the proposed penalty assessments issued by MSHA." Id. As noted above, 

the Commission's prior disposition of this issue is the law of the case. 14 

Once consideration of the GCI letter is eliminated from analysis of the reasonableness of 

the Secretary's actions, it is not apparent that the Secretary responded in any other way to GCI' s 

financial information. The lack of documentation to indicate that the Secretary, at least, 

considered the financial information is contrary to the spirit of the Secretary's rules and 

guidelines. In this regard, 30 C.F.R. § 100.3(h) provides that "[i]t is initially presumed that the 

operator's ability to continue in business will not be affected" by the penalty assessments. It is 

apparent, then, that the PPM provides the only procedure by which operators can submit this 

financial information to MSHA because the rules are otherwise silent as to the process for 

transmitting this information. 15 

In defense of her position, the Secretary argues that the PPM is not binding on her. We 

must note, however, that the Secretary's own regulations stipulate that an operator's ability to 

continue in business is presumed unless the operator submits evidence to the contrary. Upon 

such a submittal, the Secretary may, within her discretion, adjust the penalty. 30 C.F.R. 

§ 100.3(h). When the Secretary establishes a procedure directing operators to submit financial 

information in support of a request for a mitigation of civil penalties, she should respond, even if 

the response is a rejection of the request. 

Nothing required the Secretary to make an adjustment, and the operator's representation 

that it would be unable to pay even a token amount calls into question whether the Secretary 

would have been able to make any meaningful adjustment in the penalty without compromising 

her responsibility to ensure that appropriate penalties are imposed for profligate and serious 

violations of the Mine Act. Given the circumstances of this case, we understand the Secretary's 

reluctance to grant concessions to GCI. Nevertheless, the Secretary should have made a reasoned 

determination to that effect and communicated it to the operator. Indeed, one might view her 

failure to respond as an arbitrary and capricious disregard of a relevant penalty criterion under 

different circumstances. 

By the time the parties went to trial in the Mine Act proceeding they had stipulated to all 

issues related to the violations and proposed penalties except whether GCI' s payment of the 

14 This is not to say that the Commission can never consider a settlement offer in 

determining the reasonableness of the Secretary's demand. Rather, on the record in this 

proceeding, including the lack of any definitive settlement offer from the Secretary that clearly 

pertains to the dockets before the Commission, consideration of the parties' settlement 

negotiations is clearly inappropriate. 

15 The Secretary asserts, and GCI does not disagree, that GCI timely submitted financial 

information in only five of the 55 dockets. S. Br. at 34-35. See also ALJ II, 26 FMSHRC at 374-

75. 

27 FMSHRC 374 
penalties would affect its ability to continue in business. Further, the judge's assessment of 

penalties in his decision focuses primarily, if not entirely, on this element of section l lO(i), 30 

U.S.C. § 820(i), in reducing the Secretary's proposed penalties in light of the parties' 

stipulations. 23 FMSHRC at 1398-1416. In these circumstances, the Secretary's failure to 

formally respond - either by a written settlement offer, revised penalties or by a letter rejecting 

mitigation of penalties - is at her peril in light of her potential BAJA liability. As the 

Commission noted in remanding this issue to the judge in Georges Colliers I, 16 the issue is to 

determine "whether [the Secretary] made 'a reasonable effort [here] to match the penalty to the 

actual facts and circumstances of the case."' 26 FMSHRC at 14, quoting L & T Fabrication, 22 

FMSHRC at 515-16. 

In light of the Commission's decision in Georges Colliers I, the judge's clear error in 

considering GCI's letter, and the absence of any other evidence indicating that the Secretary 

responded to GCI' s showing of financial hardship, we conclude that, while the Secretary's 

proposed penalty may not be deemed unreasonable in comparison with the judge's final decision, 

the Secretary did not act reasonably by failing to respond to the operator's request for an 

adjustment of the proposed penalties. However, given our prior disposition of the special 

circumstances exception and whether the penalties were excessive, our conclusions with regard 

to reasonableness do not change the outcome of this proceeding. We only intend our discussion 

to indicate what criteria we might apply were the circumstances different from those presented in 

this case, and because the reasonableness issue was remanded to the judge in Georges Colliers 

J.17 

16 In Georges Colliers I, the Commission noted that the file in each docket indicated that 

the Secretary made a reasonable effort to match the penalty to the facts and circumstances of each 

citation when she initially issued her assessments. 26 FMSHRC at 11 & n.13. However, the 

central issue in this proceeding is the nature of the Secretary's response to GCI' s submission of 

financial data that indicated GCI would be unable to continue in business if it paid the full 

amount of the penalty assessments. Id. at 11. Of course, it was not incumbent on the Secretary 

to lower the proposed penalties but rather to show that she had, at the least, considered the 

financial information in relation to the violations and the proposed penalties. 

17 While the Secretary erred by not providing a determinative response to GCI's 

economic hardship submission, nonetheless GCI' s failure to timely follow the established 

procedure in most of these dockets constitutes a mitigating factor that would preclude a finding 

that the Secretary acted unreasonably in those cases. 

27 FMSHRC 375 
m. 

Conclusion 

We affirm the judge's denial of the request for fees and expenses and dismiss the EAJ A 

application for the reasons stated above. 

27 FMSHRC 376 
Distribution 

Elizabeth M. Christian, Esq. 

11229 Pleasant Wood Lane 

Fort Worth, TX 76140-6539 

Robin A. Rosenbluth, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

Administrative Law Judge David F. Barbour 

Federal Mine Safety and Health Review Commission 

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

Washington, D.C. 20001 

27 FMSHRC 377 
27 FMSHRC 378 
ADMINISTRATIVE LAW JUDGE DECISIONS 

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. 

WEIRICH BROTHERS, INC., 

Respondent 

April7,2005 

CIVJLPENALTYPROCEEDING 

Docket No. CENT 2004-211-M 

A.C. No. 41-01171-32192 

Boemer Pits & Plant 

DECISION 

Appearances: Thomas A. Paige, Esq., and Carlton C. Jackson, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for Petitioner; 

Terry Weirich, President, Weirich Brothers, Inc., Johnson City, Texas, Pro Se, for 

Respondent. 

Before: Judge Hodgdon 

This case is before me on a Petition for Assessment of Civil Penalty brought by the 

Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against 

Weirich Brothers, Inc., pursuant to section 105 of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815. The petition alleges five violations of the Secretary's mandatory health 

and safety standards and seeks a penalty of $2,575.00. A hearing was held in San Antonio, 

Texas. 1 For the reasons set forth below, I vacate one order, affirm an order/citation, modify three 

orders and assess a penalty of $700.00. 

Backeround 

Weirich Brothers, Inc., is a small, family-owned, sand and gravel company that operated 

three pits, known as the Boemer Pits and Plant, the Davis Pit and the Myer Pit, in the vicinity of 

Johnson City, Texas. In addition, to Terry Weirich, President, and his sister, Sandra Danz, Vice 

President, the company has no more than four employees at any one time. The Boerner Pits and 

Plant closed in May 2004. 

1 The record was kept open to admit the deposition of Jose G. Garza. (Tr. 103, 165.) 

Garza's deposition has been submitted as Petitioner's Exhibit 16 and is admitted as such. 

27 FMSHRC 379 
This case arises out of semi-annual inspections of the Boerner Pits and Plant in July 2003 

and February 2004. The Respondent has contested a combined 107(a) order/104(a) citation, 30 

U.S.C. §§ 817(a) and 814(a), issued on July 14, 2003, and four 104(d)(2) orders, 30 U.S.C. 

§ 814(d)(2), issued on February 3, 2004. The orders, and citation, will be discussed in the order 

of their issuance. 

Findings of Fact and Conclusions of Law 

Order/Citation No. 6233133 

This order/citation alleges that a violation of section 56.14101(a)(I) of the Secretary's 

regulations, 30 C.F.R. § 56.14101(a)(I), occurred on July 14, 2003, because: 

The service brakes of the 980 CAT F.E.L. would not stop 

the loader on the typical grade in the plant area. The 980 CAT 

F.E.L. could smash or run over someone or something in the plant 

area with the defective brakes. Operator did not know how long 

the brakes had been defective[;] he does not run it every day. An 

oral 107(a) imminent danger order was issued to Joe Garcia [sic], 

foreman, at 1405 hours on this date. 

(Pet. Ex. I.) Section 56.14101(a)(I) provides, in pertinent part, that: "Self-propelled mobile 

equipment shall be equipped with a service brake system capable of stopping and holding the 

equipment with its typical load on the maximum grade it travels .... " 

Inspector Rick Knupp testified that as he was conducting his inspection on July 14, 

the piece of equipment that's mentioned here [in the order/citation] 

was coming by us, and Joe Garcia was the - or Joe Garza was 

accompanying me. And we went to stop the loader to do a safety 

check on it, he couldn't stop. The service brakes wouldn't work, 

and he ended up putting the bucket down to get the piece of 

eq1:1ipment stopped there. 

(Tr. 66.) He further related that during this time, "[t]here was at least one plant haul truck 

hauling materials, and then there was a couple of over-the-road trucks that were waiting to be 

loaded in the area there. And the truck drivers were standing around talking." (Tr. 67.) The 

inspector said that the loader was moving material and loading trucks and that when it loaded a 

truck, "he'd go up with his bucket, and his tires would go against the tires of the haul truck." 

(Tr. 70.) 

Tim Hahne, the loader operator, testified that the loader "had brakes on it that morning. 

Then we start working, pushing the loader, working twice as hard with the trucks coming in and 

27FMSHRC380 
out, then loading the pit trucks up. And, you know, it starts wearing down." (Tr. 99.) He said 

that the brakes had to be adjusted every once in awhile. (Tr. 97.) Terry Weirich testified that 

after receiving the order/citation, he adjusted the brakes on the loader. (Tr. 124.) 

Imminent Danger 

Section 107(a) of the Act states that: 

If, upon any inspection or investigation of a coal or other 

mine which is subject to the Act, an authorized representative of 

the Secretary finds that an imminent danger exists, such 

representative shall determine the extent of the area of such mine 

throughout which the danger exists, and issue an order requiring 

the operator of such mine to cause all persons ... to be withdrawn 

from, and to be prohibited from entering, such area until an 

authorized representative ... determines that such imminent 

danger and the conditions or practices which caused such imminent 

danger no longer exist. 

Section 3(j) of the Act, 30 U.S.C. § 802(j), defines an "imminent danger" as "the existence of 

any condition or practice in a coal or other mine which could reasonably be expected to cause 

death or serious physical harm before such condition or practice can be abated." 

In interpreting this definition, the Commission has stated that "an imminent danger exists 

when the condition or practice observed could reasonably be expected to cause death or serious 

physical harm to a miner if normal mining operations were permitted to proceed in the area 

before the dangerous condition is eliminated." Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989), quoting Eastern Associated Coal Corp. v. Interior Bd. Of Mine Op. 

App., 491F.2d277, 278 (4th Cir. 1974) (emphasis omitted) (R&P). The Commission has 

elaborated that "[t]o support a finding of imminent danger, the inspector must find that the 

hazardous condition has a reasonable potential to cause death or serious injury within a short 

period of time." Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991). 

An inspector's finding of an imminent danger must be supported "unless there is 

evidence that he has abused his discretion or authority." R&P, 11 FMSHRC at 2164, quoting 

Old Ben Coal Corp. v. Interior Bd. Of Mine Op. App., 523 F.2d 25, 31 (7th Cir. 1975) (emphasis 

omitted). "An inspector abuses his discretion, making a decision that is not in accordance with 

law, if he orders the immediate withdrawal of miners in circumstances where there is not an 

imminent threat to safety." Blue Bayou Sand and Gravel, Inc., 18 FMSHRC 853, 858-59 (June 

1996). 

In determining whether he has abused his discretion, an inspector "is granted wide 

discretion because he must act quickly to remove miners from a situation he believes is 

27 FMSHRC 381 
hazardous." Id. at 859. In assessing an inspector's exercise of his discretion, the focus is on 

''whether the inspector made a reasonable investigation of the facts, under the circumstances, and 

whether the facts known to him, or reasonably available to him, supported the issuance of the 

imminent danger order." Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992). 

In this case, I find that the inspector did not abuse his discretion in issuing the imminent 

danger order. Operating a loader without brakes in area where trucks are moving and being 

loaded and truck drivers are standing outside of their trucks, not to mention any mine employees 

who might have been working in the area, certainly has a reasonable potential to cause death or 

serious injury within a short period of time. Accordingly, I affirm the imminent danger order. 

104(a) citation 

I further conclude that the Respondent violated section 56.14101(a)(l) as alleged. 

Although the inspector did not test the loader's brakes on the maximum grade that it travels, it is 

obvious that if the loader could not stop on level ground, it would not be able to pass such a test. 

Significant and Substantial 

The inspector found this violation to be "significant and substantial." A "significant and 

substantial" (S&S) violation is described in section 104(d)(l) of the Act, 30 U.S.C. § 814(d)(l), 

as a violation "of such nature as could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard." A violation is properly designated S&S 

"if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." 

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981) 

In Mathies Coal Co., 6 FMSHRC 1(Jan.1984), the Commission enumerated four criteria 

that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 52 

F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 

1988), aff g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies 

criteria). Evaluation of the criteria is made in terms of "continued normal mining operations." 

U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a 

particular violation is S&S must be based on the particular facts surrounding the violation. 

Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 

2007 (Dec. 1987). 

In order to prove that a violation is S&S, the Secretary must establish: (1) a violation of a 

safety standard; (2) a distinct safety hazard contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury will be of a reasonably serious nature. Mathies, 6 FMSHRC at 3-4. 

27 FMSHRC 382 
Here the Respondent violated section 56.14101(a)(l) by operating a front-end loader 

without brakes. This violation contributed to a safety hazard to the employees and truck drivers 

in the area of the loader's operation, as well as the operator of the loader. There was a reasonable 

likelihood that one of the truck drivers or mine employees could have been struck by the loader, 

or that the loader could have struck a truck or other immoveable object resulting in injuries to the 

operator. Finally, there was a reasonable likelihood that any resulting injury would be reasonably 

serious or fatal. 

For these reasons, I conclude that the violation was "significant and substantial." 

Order No. 6236339 

This order charges a violation of section 56.14112(b), 30 C.F.R. § 56.14112(b), on 

February 3, 2004, in that: 

The guard for the #2 screen v-belt and pulley drive was not 

in place. The foreman stated that he had performed repairs on the 

drive and had not replaced the guard. This exposes persons to an 

entanglement hazard. This mine has been issued three previous 

violations for this standard in the last seven months. Management 

engaged in aggravated conduct constituting more than ordinary 

negligence in that the foreman was running the plant and knew the 

guard was not in place. This violation is an unwarrantable failure 

to comply with a mandatory standard. 

(Pet. Ex. 2.) Section 56.14112(b) requires that: "Guards shall be securely in place while 

machinery is being operated, except when testing or making adjustments which cannot be 

performed without removal of the guard." 

Inspector Kevin Busby testified that when he pulled into the quarry and parked his car he 

observed that the #2 shaker screen was running and that there was no guard on the pulley and 

drive belts. (Tr. 14.) Jose Garza, the foreman, admitted that the screen was operating with an 

unguarded pulley, but claimed that he was testing it. (Garza Dep. at 36.) This claim does not fit 

within the exception to the rule. 

In the first place, there is no claim that the testing could only be done with the guard 

removed. Garza said that he wanted to see if the belt would stay on after he fixed it. (Garza 

Dep. at 36.) This observation did not require the guard to remain off. In the second place, after 

he observed that the belt was holding, Garza left the belt unattended with the guard off. (Tr. 36.) 

Therefore, I find that the regulation was violated as alleged. 

27 FMSHRC 383 
Unwarrantable Failure 

This order was issued under section 104(d)(2) of the Act.2 As the Commission has 

explained: 

Section 104(d) creates a "chain" of increasingly severe 

sanctions that serve as an incentive for operator compliance. See 

Nacco Mining Co., 9 FMSHRC 1541, 1545-46 (Sept. 1987). 

Under Section 104(d)(l), if an inspector finds a violation of a 

mandatory standard during,an·.inspectjen,_ and finds that the ·· 

violation is S&S. and that itis also caused.by an unwarrantable 

failure, he issues a citation under section 104(d)(l). 30 U.S.C. 

, .. r.~: · .. : · · § 814(d)(l). ·That citation is commonlyn~ferred to as a "section 

104(d)(l) citation" or a "predicate citation .. ~~: See Greenwich 

Colleries, Div. Of Pa. Mines Corp., 12· FMSHRC'9'"40: 945 (May 

1990). If during the same inspection or any subsequent inspection 

within 90 days after issuance of the predicate citation, the inspector 

finds another violation caused by unwarrantable failure to comply 

with a standard, the inspector issues a withdrawal order under 

section 104(d)(l), sometimes referred to as a "predicate order." 30 

U.S.C. § 814(d)(l); Wyoming Fuel Co., 16 FMSHRC 1618, 1622 

n.7 (Aug. 1997). If an inspector "finds upon any subsequent 

inspection" a violation caused by unwarrantable failure, he issues a 

withdrawal order for that violation under section 104(d)(2). 30 

U.S.C. § 814(d)(2). The issuance of withdrawal orders under 

section 104(d)(2) does not cease and an operator remains on 

probation "until such time as an inspection of such mine discloses 

no similar violations." Id.; see Nacco, 9 FMSHRC at 1545. 

2 Section 104(d)(2) provides that: 

If a withdrawal order with respect to any a,ea in a coal or 

other rID:I?e ha$ ~ee~is;u.:ecl p~μant !f> {Jar~~flP.h. (1), a withdrawal 

order shall promptly be issued by an authorized representative of 

the Secretary·who -finds_upon-any subs~quent inspection the 

existence in sucmmi~UV.iofations similar to those that resulted in 

the issuance of the withdrawal order under paragraph (1) until such 

time as an inspection of such mine discloses no similar violations. 

Following an inspection of such mine which discloses no similar 

violations, the provisions of paragraph (1) shall again be applicable 

to that mine. 

27 FMSHRC 384 
Cyprus Cumberland Resources Corp., 21FMSHRC722, 725 (July 1999) (footnote omitted). 

Thus, in order to establish that a violation comes within section 104(d)(2), the Secretary must 

prove three things: (1) a valid section 104(d)(l) predicate order; (2) a violation of a mandatory 

health or safety standard caused by an unwarrantable failure; and (3) the absence of an 

intervening clean inspection. Id.; U.S. Steel Corp., 6 FMSHRC 1908, 1911 (Aug. 1984); Kitt 

Energy Corp., 6 FMSHRC 1596, 1600 (July 1984). 

The predicate order for this order is listed in section 14 of the order form as Order No. 

6233165, issued on August 27, 2003. (Pet. Ex. 2.) The predicate order, however, was not 

offered at the trial. Nor is it included in the Assessed Violation History Report, which 

purportedly lists all violations at the Boemer Pits & Plant between July 4, 1976, and January 20, 

2005. (Pet. Ex. 14.) Indeed, there are no 104(d)(l) orders at all listed in the report. Therefore, 

there is no way to determine whether there is a valid predicate order. In addition, the Secretary 

did not offer any evidence of the absence of an intervening clean inspection. 

Consequently, I find that the Secretary has failed to make out a primafacie case that this 

violation should be a section 104(d)(2) order and will modify it. In this regard, it cannot be 

modified to a section 104(d)(l) order because there is no evidence that this order was issued 

within 90 days of a 104(d)(l) citation. According to the violation history report, the most recent 

inspection prior to this one was on August 27, 2003, more than 90 days earlier. · Furthermore, if a 

section 104(d)(l) order had been issued within 90 days of the instant order, the order would have 

been issued as a section 104(d)(l) order, not a section 104(d)(2) order. Nor can it be modified to 

a 104(d)(l) citation since the inspector determined the violation to be not "significant and 

substantial." Hence, I will modify it to a 104(a) citation, 30 U.S.C. § 814(a). 

Order No. 6236340 

This order also alleges a violation of section 56.14112(b) on February 3, 2004, because: 

(Pet. Ex. 3.) 

The guard for the left side of the tail pulley of the truck load 

out belt conveyor was not in place. The foreman stated that he had 

taken the guard off to clean around the tail pulley and had not 

replaced it. This exposes the foreman who monitors the plant and 

accesses this area to an entanglement hazard. This mine has been 

issued three previous violations for this standard in the last seven 

months. Management engaged in aggravated conduct constituting 

more than ordinary negligence in that the foreman was running the 

plant and knew that he had not replaced the guard. This violation 

is an unwarrantable failure to comply with a mandatory standard. 

27 FMSHRC 385 
Inspector Busby testified that while he was observing the previous violation, the foreman, 

Garza, "had driven up arid parked his truck under the load-out belt and had walked over, and 

when I turned he was replacing that guard on the tail pulley." (Tr. 23.) He further testified that 

the belt does not run continuously, but is turned on by the truck driver after parking his truck 

under the belt, so material can be loaded into it. (Tr. 26-27.) On cross examination, when asked 

if the belt was running when Garza put the guard back on, he answered: "I believe it was." (Tr. 

51.) Finally, the inspector and I had the following conversation: 

(Tr. 59-60.) 

JUDGE HODGDON: Mr. Busby, going back to the load-out 

hopper, do you - did you observe Mr. Garza backing the truck up 

to the load-out hopper? 

THE WITNESS: Well, I - yes, sir, in a way. I turned and saw the 

truck backing up, and then he was exiting it. I don't -I can't say, 

for example, if - still rolling or if he had actually parked it, but he 

had exited and was walking in that area. 

JUDGE HODGDON: And what did he do? Where did he go? 

THE WITNESS: He came by the controls, and that's when I 

thought that he had activated that belt. And then he was putting 

the guard back on the tail pulley of the under-hopper belt when I 

turned completely and observed him. 

JUDGE HODGDON: So you're saying he activated the belt before 

he put the guard on? 

THE WITNESS: That's what I thought I saw, yes, sir. 

JUDGE HODGDON: Okay. When he put the guard on, was the 

belt operating? 

THE WITNESS: I believe so, sir. 

JUDGE HODGDON: Was it loading the truck? 

THE WITNESS: I didn't observe that. 

Garza testified that: 

27 FMSHRC 386 
A rock got hung on the belt. I had to take [the guard] off to take 

the rock off. And my truck was loaded, and I went to take my load 

up, and when I get back to put the guard on, like I said, he's right 

on the money. He comes with the guard off. You know, by the 

time I park my truck, he already saw the guard. 

(Garza Dep. at 43.) He further explained that the belt does not run constantly, that "[t]he only 

time I run it is when I tum it on with one of these switches. I turn it on, empty the hopper, turn it 

back off." (Dep. at 44.) He said that it was not running when the inspector saw it. (Id.) 

Based on this evidence, I find that the regulation was not violated. The inspector was 

equivocal as to whether the belt was running or not. In his initial testimony, he did not mention 

the belt running at all. When questioned about it, he qualified his answers with "I believe" and "I 

thought." On the other hand, Garza's explanation that he loaded his truck, a rock got caught on 

the belt, he turned off the belt, removed the guard, removed the rock and then took his truck to 

dump it, is very plausible. He was not asked if he turned the belt on before replacing the guard, 

but since he knew the inspector was watching him, it does not make sense that he would do so. 

Furthermore, even if he did turn the belt on before replacing the guard, such a short time would 

have elapsed, with no one exposed to the hazard, that it would not be a violation. Accordingly, I 

will vacate this order. 

Order No. 6236341 

This order charges yet another violation of section 56.14112(b) because: 

(Pet. Ex. 4.) 

The guard for the lower pulley of the drive for the jaw 

crusher was not in place exposing the pinch point. The foreman 

stated that he had removed the guard to replace the belt earlier in 

the day and had not replaced the section of guarding. This exposes 

the foreman who accesses this area to monitor feed to the crusher 

to an entanglement hazard. This mine has been issued three 

previous violations for this standard in the last seven months. 

Management engaged in aggravated conduct constituting more 

than ordinary negligence in that the foreman was running the plant 

and knew the section of guarding had not been replaced. This 

violation is an unwarrantable failure to comply with a mandatory 

standard. 

The inspector testified that a portion of the guarding around the drive motor and pulley 

was missing, exposing the pinch points on the pulley and v-belt drive. (Tr. 40.) The pictures 

taken by the inspector confirm this. (Pet. Ex. 4.) Garza admitted that the piece of guarding was 

27 FMSHRC 387 
nussmg. (Garza Dep. at 46-47.) Therefore, I conclude that the Respondent violated the 

regulation as alleged. 

Unwarrantable Failure 

This order was issued under section 104(d)(2). For the same reasons that I found that 

section 104(d)(2) did not apply to Order No. 6236339, supra, I find that the section does not 

apply to this violation and will modify it accordingly. 

The order was amended on March 5, 2004, by deleting the "significant and substantial" 

designation. (Pet. Ex. 4.) Hence, for the same reasons as Order No. 6236339, the order can only 

be modified to a 104(a) citation. 

Order No. 6236345 

This order alleges a violation of section 56.14132(b)(l)(ii), 30 C.F.R. 

§ 56.14132(b)(l)(ii), in that: 

The wheel mounted reverse movement bell alarm had been 

removed from the F700 Ford bobtail dump truck loading from the 

plant load out to stockpile. The truck also did not have a horn to 

warn persons of movement of the truck. Management engaged in 

aggravated conduct constituting more than ordinary negligence in 

that the foreman knew the bell alarm was not installed on the truck 

and he operated it in this condition. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

(Pet. Ex. 5.) Section 56.14132(b)(l)(ii) requires that: "When the operator has an obstructed 

view to the rear, self-propelled mobile equipment shall have - ... (ii) A wheel-mounted bell 

alarm which sounds at least once for each three feet of reverse movement." 

The inspector testified that the truck was equipped with a wheel-mounted bell alarm, but 

that the bell had been removed from the wheel. (Tr. 34-36.) The Respondent admitted the 

violation. (Tr. 128.) Consequently, I find that the Respondent violated the regulation. 

Unwarrantable Failure 

This violation was also issued as a 104(d)(2) order. The inspector found the violation not 

to be "significant and substantial." Therefore, for the same reasons as for Order Nos. 6236339 

and 6236341, supra, I will modify this order to a 104(a) citation. 

27 FMSHRC 388 
Civil Penalty Assessment 

The Secretary has proposed a penalty of $2,100.00 for the four remaining violations. 

However, it is the judge's independent responsibility to determine the appropriate amount of 

penalty in accordance with the six penalty criteria set out in section 1 lO(i) of the Act, 30 U.S.C. 

§ 820(i). Sellersburg Stone Co. v. FMSHRC, 736F.2d1147, 1151 (7th Cir. 1984); Wallace 

Brothers, Inc., 18 FMSHRC 481, 483-84 (Apr. 1996). 

With regard to the penalty criteria, I find that the Respondent is a small operator. Based 

on the Assessed Violation History Report, I find that the Company has a good history of previous 

violations. (Pet. Ex. 14.) Based on the order/citations, and the lack of evidence to the contrary, I 

find that the operator demonstrated good faith in abating the violations after being notified of 

them. I further find that the gravity of Order/Citation No. 6233133 was serious in that a fatal 

injury could have resulted from the operation of the loader without brakes. On the other hand, I 

find the gravity of the three remaining citations was not so serious since injuries were unlikely to 

result from them. 

Turning to negligence, I find that the operator's negligence with regard to Citation 

(formerly Order) Nos. 6236339, 6236341 and 6236345 to be high. All of these violations were 

committed by the foreman, Jose Garza, who, as a foreman, is held to a heightened standard of 

care concerning safety matters. S & H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995); 

Youghiogheny, 9 FMSHRC at 2011. In addition, the Secretary has established that the operator 

has a recent history of repeatedly committing guarding and back-up alarm violations. (Pet. Exs. 

6, 7, 8 and 14.) 

I also find that the Respondent's negligence was high with regard to Order/Citation No. 

6233133. While Hahne was obviously highly negligent in continuing to operate the loader 

without brakes, that negligence is not necessarily imputable to the operator. Normally, the 

negligence of a "rank-and-file" miner cannot be imputed to the operator for civil penalty 

purposes. Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Western 

Fuels-Utah, Inc., 10 FMSHRC 256, 260-61(Mar. 1988); Southern Ohio Coal Co., 4 FMSHRC 

1459, 1464 (Aug. 1982) (SOCCO). However, the Commission has held that: "[W]here a rankand-file employee has violated the Act, the operator's supervision, training and disciplining of its 

employees must be examined to determine if the operator has taken reasonable steps necessary to 

prevent the rank-and-file miner's violative conduct." SOCCO at 1464. 

In this case, I find that the operator had not taken reasonable steps in its supervision, 

training and disciplining to prevent the violative conduct. Garza testified that no one had ever 

been disciplined or fired for failing to follow safety rules. (Garza Dep. at 28.) In addition, in 

view of its continuing to receive citations for the same types of violations, one would expect the 

operator to exercise increased vigilance and to expect the same from his employees. Yet, there is 

no evidence of that in this case. The Respondent has apparently continued to operate as normal. 

Accordingly, I find that the operator's negligence with regard to this violation was high. 

27 FMSHRC 389 
To show that paying the proposed penalty will adversely affect the company's ability to 

remain in business, the Respondent has submitted balance sheets and income statements for the 

years 2000 through 2003. (Resp. Exs. B, C, D and E.) In addition, Mr. Weirich testified that he 

expected a $30,000.00 loss for 2004. (Tr. 117.) All of the financial statements are accompanied 

by the following statement by the accountants: 

The owners have elected to omit substantially all of the 

disclosures ordinarily included in financial statements prepared on 

the income tax basis of accounting. If the omitted disclosures were 

included in the financial statements, they might influence the user's 

conclusions about the Company's financial position and results of 

operations. 

(Resp. Exs. B, C, D and E.) Furthermore, all of the financial statements are unaudited. (Tr. 

157.) 

It is apparent that the financial statements are not reliable information on which to 

determine whether the penalty will adversely affect Weirich' s ability to remain in business. 

There is no way to know whether the information in them is complete, true and correct. The 

burden is on the operator to show that the penalty will adversely affect its ability to remain in 

business. Sellersburg at n.14. Unaudited financial statements are not sufficient to sustain that 

burden. See Spurlock Mining Co., Inc., 16 FMSHRC 697, 700 (Apr. 1994). 

Nevertheless, the Secretary has submitted three settlement agreements from prior cases 

involving the Respondent in which the Secretary has reduced penalties because payment would 

adversely affect the company's ability to remain in business. (Pet. Exs. 11, 12 and 13.) Thus, it 

is clear that the Secretary has accepted that the payment of penalties will affect the operator's 

ability to remain in business. There is no evidence that business has gotten better since these 

agreements were made. Therefore, I find that payment of a penalty would adversely affect the 

Respondent's ability to remain in business and will take that into consideration in assessing 

penalties. 

Taking all of these factors into consideration, I find that a penalty of $700.00 is 

appropriate, assessed as follows: (1) Order/Citation No. 6233133-$400.00; (2) Citation No. 

6236339-$100.00; (3) Citation No. 6236341-$100.00; and (4) Citation No. 6236345-$100.00. 

27 FMSHRC 390 
Order 

In view of the above, Order No. 6236340 is VACATED; Order/Citation No. 6233133 is 

AFFIRMED; Order Nos. 6236339, 6236341and6236345 are MODIFIED tol04(a) citations by 

deleting the "unwarrantable failure" designations and are AFFIRMED as modified. Weirich 

Brothers, Inc., is ORDERED TO PAY a civil penalty of $700.00 within 30 days of the date of 

this order. 

'1r1!~ Administrative Law Judoe /;> 

Distribution: (Certified Mail) 

Thomas A. Paige, Esq., Carlton C. Jackson, Esq., Office of the Solicitor, 

U.S. Department of Labor, 525 South Griffin St., Suite 501, Dallas, TX 7502 

Terry Weirich, President, Weirich Brothers Inc., P.O. Box 206, Johnson City, TX 78636 

/hs 

27 FMSHRC 391 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY VENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CKC MATERIALS DIVISION, 

Respondent 

April7,2005 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2003-268-M 

A.C. No. 02-01221-05528 

Docket No. WEST 2003-269-M 

A.C. No. 02-01221-05529 

Docket No. WEST 2003-270-M 

A.C. No. 02-01221-05530 

DECISION APPROVING SETTLEMENT 

Before: Judge Bulluck 

These cases are before me upon petition for assessment of civil penalty under section 

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

motion to approve settlement agreement and to dismiss these cases. A reduction in penalty from 

$10,384.00 to $6,000.00 is proposed. The citations, initial assessments and the proposed 

settlement amounts are as follows: 

Initial Proposed 

Citation No. Assessment Settlement 

WEV A 2003-268-M 6283833 $ 55.00 $ 55.00 

6283836 55.00 55.00 

6283846 55.00 55.00 

6292219 55.00 55.00 

6292220 90.00 90.00 

6292221 90.00 55.00 

6292222 90.00 90.00 

6292223 55.00 55.00 

6292224 90.00 0.00 

6292225 90.00 55.00 

6292226 55.00 55.00 

6292228 55.00 55.00 

6292260 113.00 113.00 

6292261 90.00 90.00 

6292262 90.00 90.00 

6292263 55.00 55.00 

27 FMSHRC 392 
WEV A 2003-269-M 

WEV A 2003-270-M 

6292264 

6292265 

6292266 

55.00 

55.00 

55.00 

SUBTOTAL: $ 1,348.00 

6292267 $ 55.00 

6292268 55.00 

6293869 55.00 

6293870 55.00 

6293871 55.00 

6293872 55.00 

6293873 55.00 

6293874 55.00 

6293875 55.00 

6293876 90.00 

6293877 90.00 

6293878 90.00 

6293879 55.00 

6293880 90.00 

6293881 55.00 

6293882 55.00 

6293884 55.00 

6293885 231.00 

6293886 55.00 

SUBTOTAL: $ 1,361.00 

6293890 

6292997 

6292999 

6293001 

6293002 

6293003 

6293004 

6293005 

6293007 

6293008 

6293009 

6293010 

6293011 

6293012 

$ 231.00 

224.00 

224.00 

655.00 

399.00 

161.00 

317.00 

224.00 

655.00 

655.00 

655.00 

655.00 

655.00 

655.00 

27 FMSHRC 393 

55.00 

55.00 

55.00 

$ 1,153.00 

$ 0.00 

0.00 

55.00 

55.00 

55.00 

55.00 

55.00 

55.00 

55.00 

90.00 

55.00 

55.00 

0.00 

90.00 

55.00 

55.00 

55.00 

231.00 

55.00 

$1,126.00 

$ 231.00 

224.00 

224.00 

162.00 

399.00 

161.00 

317.00 

224.00 

162.00 

162.00 

645.00 

162.00 

162.00 

162.00 
6293013 

6293014 

655.00 

655.00 

SUBTOTAL: $ 7,675.00 

TOTAL: $10,384.00 

162.00 

162.00 

$3,721.00 

$6,000.00 

I have considered the representations and documentation submitted in these cases, and I 

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

of the Act. 

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

ORDERED that Citation Nos. 6292224, 6292267, 6292268 and 6293879 are VA CA TED, that 

the Secretary MODIFY Citation Nos. 6293877 and 6293878 to reduce the level of gravity to 

"unlikely," Citation Nos. 6292221, 6292225, 6292261, 6293877 and 6293878 to delete the 

"significant and substantial" designation, and that Respondent PAY a penalty of $6,000.00 

within 30 days of this decision. On receipt of payment, these cases are DISMISSED. 

Distribution: 

~{~ Administrative Law Judge 

(202) 434-9987 

Isabella M. Del Santo, Esq., U.S. Department of Labor, Office of the Solicitor, 71 Stevenson 

Street, Suite 1110, San Francisco, CA 94105-2937 

Brian Cluff, General Manager, CKC Materials, 1234 E. Airport Blvd., Safford, AZ 85546 

ej 

27 FMSHRC 394 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington DC, 20001-2021 

Telephone: (202) 434-9958 

Fax: (202) 434·9949 

April 15, 2005 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

AD1\.1INISTRATION (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2004-397-M 

A. C. No. 35-03260-28580 

v. 

Harvey W. Buche Building 

HARVEY W. BUCHE ROAD BUILDING, 

INC., 

Before: 

Respondent. 

DECISION APPROVING SETTLEMENT 

ORDER TO MODIFY 

ORDER TO VACATE CITATIONS 

ORDER TO PAY 

Judge Lesnick 

This case is before me pursuant to an order of the Commission dated December 23, 2004, 

. remanding this matter for further consideration and determination as to whether the operator, 

Harvey W. Buche Road Building, Inc. ("Buche") is entitled to relief under Rule 60(b) of the 

Federal Rules of Civil Procedure. 1 In particular, Rule 60(b)(l) provides relief from a final 

judgment in cases where there has been a "mistake, inadvertence, surprise, or excusable neglect." 

This matter arose because Buche failed to file a timely response to the Secretary of 

Labor's ("Secretary") petition for assessment of civil penalty and my subsequent Order to Show 

Cause. In its request to reopen, Buche asserts that after the show cause order was issued, it began 

negotiations with the Solicitor's Office and reached a settlement. However, Buche contends the 

agreement was inadvertently misplaced. As soon as the matter was brought to its attention, it 

forwarded the signed agreement to the Solicitor's Office. The Secretary has not filed a response 

to Buche's request, but she has filed a settlement motion. 

Based upon the evidence presented before the Commission, the record before me, and the 

submission of the settlement motion by the Secretary - an seemingly indirect statement that she 

does not oppose the reopening of the assessment, I conclude that the penalty assessment should 

be reopened pursuant to Rule 60(b ). 

1

While the Commission is not obligated to adhere to the Federal Rules of Civil 

Procedure, the Commission has found guidance and has applied "so far as practicable" Rule 

60(b). See 29 C.F.R. § 2700.l(b). 

27 FMSHRC 395 
Accordingly, the penalty assessment is reopened, and this case shall proceed pursuant to 

the Mine Act and the Commission Procedural Rules, 29 C.F.R. § 2700. 

Settlement Motion 

The parties propose a reduction in penalty from $2,491.00 to $1,882.00. The parties also 

request that the negligence for Citation Nos. 6352339, 6352341, 6352342, and 6352355 be 

modified as outlined in the settlement motion. I have considered the representations and 

documentation submitted in this case, and I conclude that the proffered settlement is appropriate 

under the criteria set forth in section 11 O(i)of the Act. The settlement amounts are as follows: 

Citation No. Date C.F.R. Assessment Settlement 

6352339 03/04/04 46.8(a)(l) $ 1,033.00 $ 805.00 

6352341 03104104 56.14107(a) 286.00 199.00 

6352342 03/04/04 56.14107(a) 286.00 199.00 

6352355 03105104 56.14101(a)(2) 286.00 199.00 

6352340 03/04/04 56.12013(b) 60.00 60.00 

6352343 03105104 56.9300(a) 60.00 60.00 

6352344 03105104 56.14107(a) 60.00 60.00 

6352345 03105104 56.14107(a) 60.00 60.00 

6352346 03/05/04 56.11002 60.00 60.00 

6352348 03/05/04 56.4201 ( a)(2) 60.00 60.00 

6352349 03/05/04 47.41(a) 60.00 60.00 

6352350 03/05/04 47.31(a) 60.00 60.00 

6352353 03105104 56.14101(a)(3) 60.00 Vacate 

6352354 03/05/04 56. l 4103(b) 60.00 Vacate 

Total: $ 2,491.00 $ 1,882.00 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is ORDERED that the negligence for Citation Nos. 6352339, 6352341, 6352342, and 

6352355 be MODIFIED as outlined in the settlement motion. It is also ORDERED that 

Citation Nos. 6352353 and 6352354 be VA CA TED. 

27 FMSHRC 396 
It is further ORDERED that the operator pay a penalty of $1,882.00 within 30 days of 

this order.2 Upon receipt of payment, this case is DISMISSED. 

!:~~ Chief Administrative Law Judge 

Distribution: 

Patricia Drummond, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third 

Avenue, Suite 945, Seattle, WA 98101-3212 

Harvey W. Buche, Owner, Harvey W. Buche Road Building, Inc., 35111 S. Wilhoit Road, 

Molalla, OR 97038 

/fb 

2

Payment may be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT 

OF LABOR, PAYMENT OFFICE, P. 0. BOX 360250M, PITTSBURGH, PA 15251. 

27 FMSHRC 397 
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 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of MARK ORA Y, 

Complainant 

v. 

NORTII STAR :MINING, INC., 

and JIM BRUMMETT, 

Respondents 

April 22, 2005 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2001-23-D 

BARB CD 2000-13 

No. 5 Mine 

Mine ID 15-17437 

ORDER LIFTING STAY 

AND 

DECISION APPROVING SETTLEMENT 

The stay in the above-captioned case is hereby LIFTED. 

This case is before me on remand by the Commission, and involves a discrimination 

complaint filed by the Secretary of Labor ("the Secretary") on behalf of Mark Gray, against North 

Star Mining, Incorporated ("North Star''), and Jim Brummett, under section 105( c )(2) of the 

Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. § 815(c)(2).1 

By decision issued on April 29, 2003, I found that Gray was not constructively discharged 

by North Star, and that Brummett did not unlawfully threaten Gray. Consequently, I dismissed 

the complaint against all Respondents, and disapproved a settlement agreement between the 

Secretary and Brummett. 

As a result of its review, the Commission remanded the case for reconsideration of 

whether Brummett's statements to Gray were coercive and, therefore, discriminatory, by 

application of its test in Moses v. Whitely Development Corp., 4 FMSHRC 1475 (Aug. 1982), 

1 The original complaint was also filed on behalf of Roscoe Ray Young; his complaint 

was dismissed on April 10, 2002. Mike Caudill was joined with North Star in the original 

complaint; the parties did not appeal my dismissal of the charges against Caudill and dropped 

him from the caption in their pleadings. 

27 FMSHRC 398 
a.ff d, 770 F.2d 168 (6th Cir. 1985).2 

The parties have filed Joint Motions to Approve Settlement. I have reviewed the 

settlement agreements and conclude that they are appropriate under the criteria set forth in 

section 1 lO(i) of the Act. Under the terms of the settlement agreement between the Secretary and 

Jim Brummett, Brummett has expressed remorse for his actions and has agreed to pay a civil 

penalty of $1,000.00. Respecting the settlement agreement between the Secretary and North Star, 

North Star has agreed to pay a civil penalty of $5,000.00 and back wages to Gray in the amount 

of $150.00. 

The settlement is in the public interest. WHEREFORE, the Joint Motions to Approve 

Settlement are GRANTED, and it is ORDERED that Jim Brummett PAY a civil penalty of 

$1,000.00, and that North Star PAY a civil penalty of $5,000.00, within thirty (30) days of this 

decision. It is further ORDERED that North Star PAY $150.00 directly to Mark Gray, within 

30 days of this decision. Upon receipt of payment, this case is DISMISSED. 

queline R. 

-~ Bulluck 

Administrative Law Judge 

Distribution: 

MaryBeth Bemui, Esq., U.S. Dept. of Labor, Office of the Solicitor, 2002 Richard Jones Road, 

Suite B-201, Nashville, TN 37215 

Mark Gray, P.O. Box 465, Grays Knob, KY 40769 

John W. Kirk, Esq., Kirk Law Firm, P.O. Box 339, Paintsville, KY 41240 

Jim Brummett, P.O. Box 174, Arjay, KY 40902 

2

0n January 24, 2005, the Secretary filed a Petition for Reconsideration of the 

Commissions's January 12, 2005 decision; the Commission denied the petition. 

27 FMSHRC 399 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

VERNON HOLDEN, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

Complainant 

April 28, 2005 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2004-364-DM 

WE MD 2004-05 

ROSS ISLAND SAND & GRAVEL CO., 

Respondent A very Point Ramp 

Mine ID 35-00540 

Appearances: 

Before: 

DECISION 

James E. Davis, Esq., Talbott, Simpson, Gibson & Davis, Yakima, 

Washington, for Complainant. 

Richard C. Hunt, Esq., Barran and Liebman, Portland, Oregon, 

for Respondent. 

Judge Zielinski 

This case is before me on a complaint of discrimination filed by Vernon Holden pursuant 

to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. 

§ 815( c )(3). 1 Holden alleges that Ross Island Sand & Gravel Company, ("Ross Island") 

discriminated against him in retaliation for his complaints about safety by laying him off for one 

week in March 2003 and by failing to call him back to work from January 15 to April 5, 2004. 

A hearing was held in The Dalles, Oregon. Following the hearing, both parties moved to re-open 

the record to submit additional evidence. Those motions were granted, and the parties 

subsequently filed briefs.2 For the reasons set forth below, I find that Respondent has failed to 

prove that he was discriminated against in violation of the Act. 

1 Pursuant to section 105(c)(2) of the Act, a miner may file a complaint of discrimination 

to the Secretary of Labor, who must conduct an investigation and file a complaint with the 

Commission if she determines that the Act has been violated. Section 105(c)(3) provides that, if 

the Secretary determines that the Act has not been violated, the miner may file an action before 

the Commission on his own behalf. 30 U.S.C. § 815(c)(2) and (3). 

2 See Orders dated December 6, 2004, and January 31, 2005, allowing supplementation 

of the record with Complainant's exhibits 6 and 7, and Respondent's exhibits 22 and 23. 

27 FMSHRC 400 
Findings of Fact 

Through its wholly owned subsidiary, Pacific Northwest Aggregates, Incorporated 

("Pacific"), Ross Island operates the A very pit, a sand and gravel mine on the banks of the 

Columbia River in Avery, Washington. Sand and gravel are extracted from the site and 

transported by barge down-river to Ross Island facilities near Portland, Oregon. A small amount 

of material is sold to local consumers, which is referred to as "outside sales." The Avery pit is 

located on land owned by the Yakima Nation. Pacific's Handbook specifies that enrolled 

members of the Yakima Nation have preference in all aspects of employment, followed by 

enrolled members of other federally recognized tribes.3 Ex. C-1 at 7. 

The mining operation is seasonal. It typically begins in late March, after the U.S. Army 

Corps of Engineers completes annual maintenance on navigati_on locks. Barge traffic on the river 

must be curtailed during lock maintenance. In 2003, lock maintenance was scheduled from 

March 8 through March 22. Ex. R- 12. Pacific's employees were called back to work on 

March 3, before lock maintenance began, because Ross Island was in short supply of a particular 

product. On March 7, three of the eight men who worked at the A very pit, including two haul 

truck drivers, were laid off. Tr. 398. A crew of five men was retained to perform major 

maintenance projects, taking down a radial stacker and extending a tunnel. Pacific encountered 

delays in that work, and did not resume full mining operations or call the truck drivers back to 

work, until March 31, 2003. 

Material is extracted from various sites on the A very pit property by use of front-end 

loaders, and is dumped into haul trucks. It is transported to a hopper and conveyor belt system, 

and loaded onto barges. Four barges are used in the operation. Three small barges have a 

capacity of 2,900 - 3,000 tons each, and can be loaded in approximately two hours. One large 

barge has a capacity double that of the smaller barges. The barges are loaded in pairs, and about 

10 - 15 minutes is required to reposition the barges so that the second one can be loaded. Barge 

loading is a critical operation, and the loader operator and haul truck drivers attempt to keep a 

constant flow of trucks to the loading hopper so that the conveyor belts do not "go dry." Barges 

are loaded three days a week, on Mondays, Wednesdays and Fridays. Tuesdays and Thursdays 

are less busy "lay down days," when overburden is removed and the wash plant is operated. 

Tr. 410-14. Employees are encouraged to schedule matters that would prevent them from 

working, e.g., doctor's visits, on these days. Tr. 410-11. 

Complainant, Vernon Holden, became employed at the Avery pit in March 2001, and 

performed a variety of jobs in 2001and2002. He operated equipment, including loaders, trucks, 

a backhoe, and a grader. He also operated the wash plant, and performed maintenance and other 

duties. Tr. 26-30; ex. C-3. By 2003, his primary assignment was driving one of the haul trucks'. 

3 Holden testified that he is over 25% Native American. Tr. 91. However, he is not an 

enrolled member of the Yakima Nation or any other federally recognized tribe. Tr. 115. 

27 FMSHRC 401 
The standard work day at the Avery pit ends at 3:00 p.m. By longstanding practice, the 

men work through their 30 minute lunch period and leave a half hour early, at 2:30 p.m. The 

company handbook provides that workers are to have a ten-minute rest period in the morning and 

afternoon, but that the breaks will not be "scheduled since the nature of the work allows 

employees to take these rest periods on an intermittent basis." Ex. C-1 at 8. The nature of the 

operation also dictates that breaks not be scheduled. The barge loading system, with its extensive 

conveyor belts, for example, can not simply be shut down. Holden generally felt that he was 

unable to take rest periods, and had been concerned about the issue for some time. He brought 

up the subject of breaks at safety meetings three or four times from 2001 - 2003. Tr. 67; 

ex. R-14. On one occasion, an instructor associated with MSHA advised that equipment 

operators should stop and stretch their legs if they felt that they needed a break. Tr. 67. 

Holden decided to press the break issue during safety meetings, shortly after he was 

called back to work in 2003. He thought that the meetings occurred on March 31 and during the 

first week in April. Tr. 60-61, 62, 67-68.4 He described a safety meeting that would most likely 

have occurred on a Tuesday, when such meetings were normally held. Holden noted that there 

were no scheduled breaks, and proposed that on non-barge days, they get off work 20 minutes 

early if they had not taken their breaks. Tr. 129, 197, 201-03. His intention was to leave earlier 

to ease his commute, since he had moved to Toppenish, Washington, some 88 miles away from 

the pit. Tr. 60-61. Roland Jack Spencer, a fellow haul truck driver, also lived in Toppenish. 

He and Holden rode to and from work together. Tr. 61. 

Holden testified that Richard Aldrich, Pacific's superintendent, reacted with hostility 

when he made his proposal regarding breaks, but that Aldrich told the miners that they should 

talk it over and he would do whatever they agreed to. Tr. 60-61. A few days later, there was 

another meeting. None of the other miners supported Holden, except for Spencer. Tr. 62, 67-68. 

Holden testified that that afternoon, he was told by Spencer that Aldrich had said that everyone 

would be working the following week, except for Holden, because Aldrich wanted to punish him 

for raising the break issue. Tr. 69. Spencer testified similarly, except that he stated that Aldrich 

did not say why Holden was being punished. Tr. 184. Holden was never told by Aldrich, or 

anyone associated with Pacific's management, that he had been laid off, and he made no effort to 

confirm the lay-off. Tr. 69-70. He and Spencer testified that Holden did not go to work the 

following week, but that Spencer did. Tr. 132, 185, 191, 430. Aldrich testified that Holden was 

not suspended for a week because he raised the break issue, and denied saying that he intended to 

punish Holden. Tr. 364. 

4 His recollection of the timing of events appeared to have been based upon notations 

that he had made in a journal. Tr. 59; ex. C-5. He obtained the journal in mid-March of 2003, 

and made daily entries in it. One of the primary reasons that he got the journal was to record 

events pertinent to perceived discrimination. Tr. 423, 434-36. When he had forgotten the 

journal, he made notes on papers kept in his truck. Tr. 153-57. One of the first entries in the 

journal was made on March 20, and was to the effect that Holden was called back to work on 

March 31, 2003. Ex. C-5. 

27 FMSHRC 402 
Holden testified that Aldrich attempted to call in another driver, Ernest Leslie, to replace 

him during the week's suspension. Tr. 70. Leslie testified that Aldrich called him in April, two 

days before his April 22 birthday, and asked him to come in to work. Tr. 208. He replied that he 

had no intention of returning to work until his entitlement to unemployment compensation ended 

at the end of April. Tr. 208. Leslie's testimony is rebutted by Pacific's payroll records, which 

show that he worked the entire month of April 2003, 198 hours from April 5 to May 3. Tr. 215; 

ex. R-15. 

Holden returned to work on March 31, 2003, and worked the remainder of the season, 

except for an approximately 10-week period from June to mid-August, when Pacific's operations 

were curtailed for economic reasons. In mid-December, an MSHA inspection had raised an issue 

with respect to the absence of speed limit signs on the pit's roadways. Aldrich ordered signs 

designating various speed limits by overnight delivery, but received only "15 MPH" signs. 

Tr. 339. He decided to post the signs, even though trucks could safely travel at higher speeds on 

portions of some roadways. Holden and Spencer posted the signs. 

The following day, on December 19, 2003, Aldrich contacted the drivers by radio and 

requested their views on whether higher speeds could safely be traveled. Tim Rambler replied 

that trucks could go faster than 15 mph on the haul road on the west end of the property. Tr. 78. 

Holden interpreted Aldrich's inquiry as a request to drive faster than the newly posted limit, and 

declined to respond to it. Instead, he replied by telling Aldrich that if he wanted him to drive 

faster he was going to have to tell him to, and stated that it was Aldrich's decision. Tr. 79. 

Aldrich then made the same inquiry to Spencer, who replied as Holden had. Tr. 81, 186. Holden 

and Spencer testified that Aldrich made a remark to the effect that the slow driving was 

"sabotaging loading of the barges." Tr. 81, 187. Aldrich denied making the comment. Tr. 341. 

A note purportedly made by Holden on December 19, relates that Holden asked Aldrich if he 

thought they were trying to sabotage loading of the barges, to which no response was made. 

Tr. 153; ex. C-3. Aldrich did not direct the drivers to exceed the posted limit. Tr. 137-38, 

340-41. 

That same day, December 19, Pacific shut down operations for the winter. Tr. 81-82. 

There was an ample inventory of material at Ross Island's facility, and no more barges were 

loaded. Tr. 341. Holden and most of the crew were laid off. Tr. 81. Holden gave conflicting 

accounts of his expectations regarding the anticipated winter shut-down. He first testified that 

Aldrich told him in December 2003 that a new barge loading system would be installed during 

the winter shut-down, and that truck drivers and operators would be needed. Tr. 82-83. 

However, he later testified that he found out in mid-January that men were installing the loading 

system, and that Aldrich had told him on December 19 that "nobody was going to be coming 

back until April." Tr. 94. He alleges that Pacific's failure to call him back to work in January 

2004 was in retaliation for his December actions with respect to the speed limit signs. 

Although he believed that he had been discriminated against as early as March or April of 

2003, Holden did not take any action to assert a complaint of discrimination until approximately 

27 FMSHRC 403 
November. At that time he spoke to an MSHA inspector, who was conducting an inspection of 

his truck, and told him that he wanted to talk to him. The inspector gave him his business card, 

and Holden later called him to relate his complaint of discrimination. Tr. 96. He was referred to 

MSHA's Vacaville, California, office, which mailed a discrimination complaint form to him. 

Holden testified that he filled out the form, signed it and mailed it back to MSHA about one 

week after receiving it. Tr 169. However, the date entered next to his signature on the complaint 

form is February 6, 2004, and the form was received by MSHA on February 23 or 25, 2004. 

Ex. R-14. Holden's complaint alleged that he had been discriminated against when he was laid 

off during the "first or second week of April 2003." Ex. R-14. It made no mention of the alleged 

January 2004 discrimination. 

Subsequent to filing the MSHA complaint, Holden was called to return to work at the 

A very pit. Phone messages were left at his home in late March, informing him that work would 

begin on April 5, 2004. Tr. 89-90. He decided not to return to work. At the time he made that 

decision he had not yet secured another job, and it is unclear whether he had applied for one.

5 

Holden testified that he made his decision to file a discrimination complaint after learning in 

January 2004 that "everybody was working but me and Roland Spencer," when he had been told 

that no one would be coming back until April. Tr. 94-95. He concluded that he did not want to 

return to Ross Island because of the "hostile working environment" created by Aldrich, who he 

believed was a racist. Tr. 144. 

By letter dated May 13, 2004, MSHA advised Holden that its investigation of his 

discrimination complaint had been completed and that it had concluded, on behalf of the 

Secretary, that no discrimination had occurred. Ex. R-14. Holden then filed his complaint of 

discrimination with the Commission, pursuant to section 105(c)(3) of the Act. The complaint 

was subsequently amended to include an allegation of discrimination during the period January 

15 to April 5, 2004. 

Conclusions of Law - Further Findings of Fact 

Timeliness of Holden's Complaint of Discrimination 

As noted above, Holden did not file a complaint of discrimination with MSHA until 

February 23 or 25, 2004, many months after the alleged March 2003 lay-off. That lay-off was the 

only discriminatory action alleged in the complaint. Respondent argues that both claims should 

be dismissed because the complaint was untimely, and the second allegation of discrimination 

was not included in the MSHA complaint. Section 105(c)(2) of the Act provides, in pertinent 

part: 

5 Holden first testified that he had applied for a job by the time he was notified to return 

to work in April of 2004. Tr. 90. Later, he testified that he had not applied for another job at the 

time of the notification. Tr. 145. 

27 FMSHRC 404 
Any miner . . . who believes that he has been discharged, interfered with, 

or otherwise discriminated against by any person in violation of this subsection 

may within 60 days after such violation occurs, file a complaint with the Secretary 

alleging such discrimination. (emphasis supplied.) 

The Commission has held that the 60 - day time limit in section 105(c)(2) of the Act is 

not jurisdictional and that non-compliance may be excused on the basis of justifiable 

circumstances, including ignorance, mistake, inadvertence, and excusable neglect. Morgan v. 

Arch of Illinois, 21FMSHRC1381, 1386-87 (Dec. 1999); Perry v. Phelps Dodge Morenci, 

18 FMSHRC 1918, 1921-22 (Nov. 1996); Hollis v. Consolidation Coal Co., 6 FMSHRC 21 

(1984); Herman v. IMCO Services, 4 FMSHRC 2135 (1982). While the Commission has not 

ruled directly on the issue, it appears that a miner's reasonable fear of retaliation may be 

considered in detennining whether there are justifiable circumstances for the late filing of a 

discrimination complaint.6 Cf Olson v. FMSHRC, 381F.3d1007, 1014 (10th Cir. 2004). Even 

if there is an adequate excuse for late filing, a serious delay causing legal prejudice to the 

respondent may require dismissal. Perry, 18 FMSHRC at 1922. The burden of proving 

justifiable circumstances is on the miner and the burden of demonstrating material legal prejudice 

is on the mine operator.7 See Olson, 381 F.3d at 1009. 

Timeliness - The March 2003 Lay-off 

The first discriminatory action argued in Complainant's post-hearing brief is that he was 

laid off for a week in March 2003, either the week ending March 15, or the week ending 

March 29.8 Under section 105(c)(2), Complainant's allegation of discrimination should have 

been filed with MSHA by May 9 or 23, 2003. The February 25, 2004, filing was over nine 

6 While the Act provides comprehensive remedies for miners injured by discrimination, 

those remedies would not lessen the potentially substantial economic hardship that a miner might 

suffer while MSHA investigates a discrimination complaint and moves to secure temporary 

reinstatement of the miner. Combined with the uncertainty of a favorable outcome of a 

discrimination action, a miner considering whether to file a discrimination complaint might well 

reasonably defer such action because of a fear of reprisal. Allowing justifiable circumstances to 

be established by a reasonable fear of retaliation would be consistent with the intent of Congress 

that the Act's anti-discrimination provisions be broadly construed. See Swift v. Consolidation 

Coal Co., 16 FMSHRC 201, 212 (Feb. 1994). 

7 Respondent does not contend that the delay in filing prejudiced its ability to defend. 

8 As noted in the discussion that follows, there is a great deal of inconsistency in 

Complainant's allegations regarding when he was discriminated against. That inconsistency has 

carried over into the post-hearing brief. At one point, it is argued that Complainant was 

improperly laid off from March 10 to 15, 2003. Comp!. Br. At 10-11. Other discussions address 

improper punishment for the week beginning March 22. Compl. Br. At 2, 19, 20. 

27 FMSHRC 405 
months beyond the statutory deadline. Complainant argues that justifiable circumstances for the 

untimely filing have been established by "his confusion regarding the proper procedures and his 

fear that he ... would be terminated." Compl. Br. at 19. 

Holden does not claim that he was unaware of his right under the Act to file a 

discrimination complaint. He testified that MSHA instructors had discussed a miner's right to 

file a discrimination complaint at training sessions, although he did not recall being aware of a 

time frame within which such claims had to be filed. Tr. 98, 168. Holden impressed me as an 

intelligent person, who understood his Mine Act and other rights, and was fully capable of 

pursuing remedies under the Act and other statutory provisions. He obtained a journal in March 

of 2003 for the express purpose of recording events pertinent to perceived discrimination, and 

made daily entries in it. Tr. 423, 434-36. At times when he had forgotten the diary, he made 

notes on papers kept in his truck. Tr. 153-57. He appeared to be familiar with terminology 

associated with other claims of discrimination that he may be pursuing. Tr. 144. 

Holden testified that he delayed filing his discrimination complaint because he believed 

that, if he filed it while he was working, he would be fired. Tr. 92, 97-98. However, the record 

as a whole establishes that Holden was not intimidated, and that he continued to press issues that 

had alienated management. He discussed the issue of breaks in safety meetings conducted by 

MSHA instructors, and at other times over the course of his employment. Tr. 66-67, 140, 182, 

190; ex. R-14. He was threatened by management several times. Tr. 97. He did not appear to 

have been intimidated by such threats. He described confrontations with management following 

his pressing of the break issue in March 2003, at which attempts were made to intimidate him 

and threats were made to fire him. Tr. 68, 85-87, 433. He was not intimidated by these actions, 

and continued to argue his position. Tr. 86-87, 433. Notes in Holden's diary indicate that he 

discussed safety issues with Aldrich in October 2003. Ex. C-5. 

Based upon the foregoing, I find that Complainant has failed to carry his burden of 

proving justifiable circumstances for his delay in filing the complaint of discrimination with 

MSHA, regarding the March 2003 lay-off. I find that, at all pertinent times, Holden was fully 

aware of his right to file a discrimination complaint, and either knew or should have known of 

the 60-day time limit for filing. I also find that he has failed to prove that the delay in filing was 

the result of a genuine fear of retaliation. 

Timeliness - The January 2004 Lay-off 

The amended complaint filed in this action alleges that Holden was discriminated against 

during the period January 15 to April 5, 2004, when he was not called back to work. He claims, 

in essence, that he was laid off during that period. The MSHA discrimination complaint was 

filed within 60 days of that allegedly discriminatory action. However, there was no mention of 

the claim in the MSHA complaint. Holden testified that he advised MSHA about the claim 

during a phone call that appears to have been made shortly after he filed the complaint. Tr. 171. 

He claims that he was told that he could describe the new claim during MSHA's investigation of 

27 FMSHRC 406 
the original complaint.9 Tr. 95-96, 170-71. He claims to have told an MSHA investigator of the 

claim in the course of an interview prompted by his original complaint. Tr. 171. 

The Commission has held that discriminatory actions not specifically alleged in an 

MSHA complaint may be pursued in a later action before the Commission, if they were 

addressed in MSHA's investigation of the complaint. Pontiki Coal Corp., 19 FMSHRC 1009, 

1016-18 (June 1997). There is nothing in the limited MSHA records that were introduced into 

evidence at the hearing to confirm or rebut Holden's testimony that the claim was reported 

during the MSHA investigation. Ex. R-14. The letter advising Complainant of MSHA's 

determination that no discrimination had occurred, does not identify the claim or claims that were 

considered. Ex. R-14. In the absence of evidence to the contrary, I find that Holden's complaint 

of discrimination during the period January 15 to April 5, 2004, was brought to MSHA's 

attention in the course of its investigation and that it can be maintained in this action. 

The Discrimination Claims 

The determination that Complainant has not established justifiable circumstances for 

failing to timely file his complaint of discrimination requires dismissal of the claim as to the 

March 2003 lay-off. However, in the interests of judicial economy, it will be assumed, for 

purposes of argument, that justifiable circumstances were established, and both claims will be 

a9dressed on the merits. 

A complainant alleging discrimination under the Act typically establishes a prima facie 

case by presenting evidence sufficient to support a conclusion that he engaged ih protected 

activity and suffered adverse action motivated in any part by that activity. See Driessen v. 

Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec'y of Labor on behalf of Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec'y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may 

rebut the prima facie case by showing either that no protected activity occurred or that the 

adverse action was in no way motivated by protected activity. See Robinette, 3 FMSHRC at 818, 

n. 20. If the operator cannot rebut the primafacie case in this manner it, nevertheless, may 

defend affirmatively by proving that it was also motivated by the miner's unprotected activity 

and would have taken the adverse action for the unprotected activity alone. Id. at 817-18; 

Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 

9 Holden's explanation for failing to include the claim for the January lay-off in his 

written MSHA complaint is difficult to accept. He acknowledged signing the complaint form on 

February 6, 2004, well after he was aware of the essential elements of the claim. It seems highly 

unlikely that MSHA would advise a miner that a discrimination claim need not be reduced to 

writing, except, possibly, if it was related to a discrimination complaint that had already been 

filed. See the discussion above. If the phone call, in fact, did not occur until after the complaint 

had been filed, Holden's explanation fails. 

27 FMSHRC 407 
642-43 (4th Cir. 1987) (applying Pasula-Robinette test). 

While the operator must bear the burden of persuasion on its affirmative defense, the 

ultimate burden of persuasion remains with the complainant. Pasula, 2 FMSHRC at 2800; 

Schulte v. Lizza, 6 FMSHRC 8, 16 (Jan. 1984). 

The March 2003 claim 

Holden failed to establish a prima facie case with respect to his allegation that he was laid 

off in March of 2003. While it appears that he engaged in protected activity, he failed to prove 

that he suffered adverse action. 

The thrust of his argument is that he was suspended in retaliation for raising a safety 

complaint, i.e., that he and other workers were not getting rest breaks. He related advice that a 

trainer associated with MSHA had provided, to the effect that drivers should take a break if they 

felt that they needed one. In his written MSHA complaint, he described raising the issue that 

they should get breaks "as a safety precaution." Ex. R-14. Section 105(c)(l) of the Act prohibits ' discrimination against any miner who complains to an operator or its agent about "an alleged 

danger or safety or health violation." 30 U.S.C. § 815(c)(l). 

However, as described in his and other witnesses' testimony at the hearing, his intention 

was not to get rest breaks, but to get off work 20 minutes earlier to ease his "almost 100 mile" 

commute. Tr. 129, 197, 201-03. Aldrich's recollection was that Holden was trying to have 

breaks scheduled, which, as noted in the handbook, is not permitted by the nature of the work. 

Tr. 351-52. As described at the hearing, the issue does not appear to have been raised as a matter 

of safety, or perceived as such by Aldrich. Nevertheless, Holden's actions did amount to a 

protest of what he perceived to be inadequate opportunities to take rest periods. 10 On the facts of 

this case, I find that Holden's actions constitute protected activity under the Act. 

Holden's accounts of when he allegedly suffered adverse action have been highly 

inconsistent. His original complaint to MSHA alleged that he had been suspended for the "first 

or second week in April 2003" or the "last week [of March] or first week in April of 2003." 

Ex. R-14. The amended complaint in this action alleges that he raised the break issue at a safety 

meeting in March and was suspended during the "first or second week in April, 2003." Am. 

Compl. at 2. 

Holden testified that he was laid off the first or second week in April. Tr. 68-69, 130. 

However, Respondent introduced time slips prepared by Holden showing that, with the exception 

10 The parties introduced a considerable amount of evidence on the question of whether 

Holden took, or was able to take, the allotted rest breaks. I find it unnecessary to resolve that 

question, because I am satisfied that Holden raised the issue of breaks in a manner that qualifies 

as protected activity under the Act. 

27 FMSHRC 408 
of a day or two, he worked from April 1through25. Ex. R-20. After Respondent introduced 

those records, Holden was re-called, and testified that he believed that he had been laid off from 

April 28 to May 2, and that the safety meeting must have been the Friday before the 28th.11 

Tr. 420-21, 428-29. Because of this significant change to the adverse action allegation, 

Respondent supplemented the record, post-hearing, introducing additional time slips submitted 

by Complainant showing that he worked from April 27 to May 10, except for two or three days 

that he was off participating in a basketball tournament. Ex. R-22, R-23. 

Faced with his own time slips showing that he was not laid off for a week during the 

April to early May period, Complainant now argues in his post-hearing brief that he was laid off 

in March, although it is unclear when. At pages 10 - 11 of the brief, it is argued that 

Complainant was improperly laid off from March 10 to 15, 2003. However, discussions at 

pages 2, 19 and 20, address improper punishment for the week beginning March 22. While 

Pacific's records confirm that he did not work during those weeks, it is clear that he was not laid 

off for retaliatory reasons at those times. 

One of the few consistencies in Holden's claim is that he was laid off following a week 

during which he and Spencer worked, at the conclusion of which Spencer advised him of 

Aldrich's statement that everyone but Holden would be back the following week. Tr. 68-70, 133, 

428-30, ex. R-14. Another consistency is that Spencer continued to work, and worked during the 

week that Holden was laid off. Tr. 132, 185, 191, 430. 

It is undisputed that Holden did not work from March 8 through March 30. Ex. R-6, 

R-17.· Spencer, likewise, did not work during that period. Ex. R-6, R-18. Consequently, the 

alleged retaliatory lay-off could not have occurred during the week beginning on March 22, 

because neither Holden nor Spencer had worked the previous week, and Spencer did not work 

that week. In addition, there are no entries in Holden's journal relating to the alleged 

discriminatory events for that time frame. Ex. C-5. It is inconceivable that events of such 

importance would not have been contemporaneously recorded in the journal which he obtained 

11 Holden's allegations, regarding meetings at which the break issue was discussed, 

show a similar lack of consistency. His MSHA complaint describes a safety meeting that 

occurred during the last week of March or the first week in April, at which he raised the break 

issue and was called a troublemaker. Ex. R-14. The complaint also describes a meeting that 

occurred "the next day," in the lunch room, that lasted over an hour. Ex. R-14. Only Holden, 

Aldrich and one other person were involved in that meeting, at which Aldrich threatened to fire 

Holden. At the hearing, Holden testified that he raised the break issue at an informal meeting on 

March 31. Tr. 61-61. He then described a meeting with the whole crew that occurred two days 

later, during the first week in April, at which he was called a troublemaker. Tr. 62, 67-68. He 

later described an hour-long meeting in the lunch room, with Aldrich and one other person, that 

occurred "after [he was] off the week in April." Tr. 85. When re-called to the stand, he 

discussed a meeting in the lunch room, at which Aldrich threatened to fire him, that occurred 

after a safety meeting on March 4, before he was laid off. Tr. 433-35. 

27 FMSHRC 409 
for the purpose of recording information pertinent to perceived discrimination. 

The week of March 10 through 15, is a more plausible possibility for the alleged 

retaliatory lay-off; however, only slightly so. Spencer and Holden had worked the previous 

week, despite Holden's initial testimony to the contrary. 12 There also had been a safety meeting 

the previous Tuesday, March 4, conducted by Aldrich. Tr. 350-53; ex R-19. Holden apparently 

did not procure his journal until mid-March, which could at least partially explain the absence of 

entries for that period. 13 However, Pacific's records clearly establish that Spencer did not work 

during the week of March 10. Ex. R-6, R-18. It is also undisputed that maintenance on the river 

locks started that week, which dictated that virtually all mining activity had to be curtailed. 

Complainant supplemented the record, post-hearing, with records from the Washington 

State Employment Security Department, purporting to show that Holden received unemployment 

compensation benefits for the week ending March 15, but that Spencer did not. He argues that 

those records establish that Spencer worked that week, and that Holden did not. However, the 

unemployment records do not explain why Spencer did not receive benefits. He may have failed 

to apply for them, or he may have been working somewhere other than at Pacific. What is clear, 

is that he did not work at Pacific that week. Ex. R-6, R-18. Consequently, the alleged retaliatory 

lay-off, as Holden and Spencer described it, could not have occurred during the week of March 

10. 

I find that Complainant has failed to establish that he suffered adverse action. 14 He and 

Spencer were laid off starting the week of March 10 solely because of the curtailment of mining 

operations, necessitated by the closure of navigation locks on the river. 

12 Holden testified that he did not work or attend a safety meeting at the beginning of 

March. Tr. 59-60, 131, 151. However, Respondent introduced into evidence time slips 

submitted by Complainant, himself, showing that he worked a total of 48 hours from March 3 

through 7, 2003. Ex. R- 17. 

13 Of course, the placement of the entry in the notes section at the end of April remains 

puzzling. 

14 Complainant apparently claims to have suffered other adverse action, i.e., the denial of 

rest breaks during his entire period of employment with Pacific, beginning in 2001. Comp!. 

Br. at 1-2, 20-21. However, he makes no plausible argument that he was denied breaks from 

2001 to 2003, in retaliation for engaging in activity protected under the Act, i.e., his raising and 

pressing the issue as a safety concern in March of 2003. Complainant cannot assert his claim to 

wrongfully denied wages under Washington State law in this proceeding. Nor can he litigate 

here the allegation included in his amended complaint, that he was discriminated against because 

of his status as an American Indian. 

27 FMSHRC 410 
Discrimination from January 15 to April 5. 2004 

Complainant claims that Aldrich's questioning of the truck drivers about whether it 

would be safe to drive faster than 15 mph was "an effort to coerce the drivers into violating the 

posted speed limit." Compl. Br. at 14. He further contends that his and Spencer's resistence to 

the inquiry, and their continued adherence to the 15 mph speed limit, led to adverse 

consequences, i.e., that Rambler "ended up taking Complainant's (and Spencer's) truck driving 

job commencing in January 2004." 15 Id. 

This claim has deficiencies similar to those of the first claim on the issues of protected 

activity and adverse action. There had been no speed limit signs in the area in question, and 

drivers had traveled faster than 15 mph because the haul road was well-maintained and it was 

safe to do so. Tr. 193, 267, 313. Even Spencer stated that he safely drove faster than 15 mph 

before the signs were posted, and that 25 mph would have been a safe speed. 16 Tr. 187-89, 193. 

Aldrich had the signs posted because an MSHA inspector had suggested it and they were the only 

ones available, which he and Rambler characterized as a misunderstanding. Tr. 313-14, 399-400. 

The inspector had advised that the speed limit could be adjusted, and Aldrich reasonably sought 

the drivers' input on whether a speed higher than 15 mph would be appropriate. 17 Tr. 377-78. 

He most likely was not satisfied that trucks were traveling at 15 mph on a haul road that could 

safely be driven at the faster speeds that the trucks had traveled prior to installation of the signs. 

As Dave Clark, the loader operator and lead man for the crew, stated, the signs slowed loading of 

the barges. Tr. 262. While Aldrich's inquiries may reasonably have been interpreted as a 

preference that the trucks be driven faster than 15 mph, he did not direct that the trucks operate 

faster than the posted limit. Tr. 137-38, 340-41. Nor did he attempt to pressure the drivers into 

operating the trucks at a speed that would have been inappropriate for the conditions. I also find 

that Aldrich did not make a remark to the effect that Holden and Spencer were "sabotaging" 

loading of the barges. A note that Holden claims to have made that day, apparently a day that he 

had forgotten his journal, describes only Holden's use of the word "sabotage" in an inquiry to 

15 Aside from the conceptual difficulty of one individual taking the jobs of two drivers, 

Spencer did not share this view. He testified that the work being done over the winter shut-down 

was not the type of work he would normally do, and that he suffered no adverse consequences 

because of his responses to Aldrich's inquires. Tr. 187, 189. 

16 The 15 mph signs on the haul road were later replaced with 25 mph signs. Tr. 191-92, 

339; ex. R-3. 

17 The Secretary's regulations provide that "Operating speeds shall be consistent with 

conditions of roadways, tracks, grades, clearance, visibility, and traffic, and the type of 

equipment used." 30 C.F.R. § 56.9101. 

27 FMSHRC 411 
which Aldrich did not respond. 18 Ex. C-3. 

It is difficult to characterize Holden's actions as protected activity. His refusal to respond 

to Aldrich's inquiry, as well as his insistence on driving no faster than the newly posted speed 

limit, were not motivated by safety concerns. At no time did Holden assert that driving 20 or 

25 mph on the haul road would have been unsafe. From the testimony of Spencer and others, it 

is apparent that haul truck drivers, including Holden, drove at the higher_ speed before the signs 

were posted, and that it was not unsafe to do so. Holden's chief concern appears to have been his 

personal responsibility in the event of a collision or accident. Tr. 79. While driving at a slower 

speed will almost always be safer, on this record, I find that Holden's actions did not constitute 

protected activity. 

I also find that Complainant did not suffer adverse action as a result of any activity that he 

engaged in with respect to the speed limit issue. He had been specifically advised that major 

maintenance projects were going to be performed over the winter shut-down. Tr. 82-83. He and 

Spencer were production haul truck drivers, and there was no such work during the shut-down. 

Spencer testified that the work was not the type of work that he would normally have done, and 

that nothing happened to him as a result of his replies to Aldrich's inquiries. Tr. 187, 189. 

Aldrich selected the members of the work crew based upon the type of work that needed to be 

done. Tr. 359-60, 401-03. Some of the work, e.g., excavation, was performed by a contractor. 

Tr. 359. There was very little need for trucks. Tr. 264, 268-70. Rambler was part of the work 

detail and had experience as a haul truck driver. Tr. 309-10. He had provided relief to haul truck 

drivers so that they could take breaks, and he operated a truck, when needed, during the project. 

Tr. 204, 270-71, 311. Rambler was also an enrolled member of the Apache tribe, and was 

entitled to hiring preference at Pacific's Avery pit site. Tr. 309; ex. R-1. Charpentier, who had 

been originally hired as a maintenance worker, also worked on the project from time to time. 

Tr. 359. 

I find that Holden would not have been scheduled to work on the construction project 

during the winter shut-down, whether or not he engaged in protected activity, with respect to the 

speed limit or any other safety issue. Aldrich's selection of men to work on the maintenance 

projects was based entirely upon bona fide business considerations. 19 Complainant has not 

established that he suffered adverse action as a result of his claimed protected activity with 

18 There are only two entries in Holden's journal relating to speed for the week of 

December 15, 2003. The first, at the top of the page, reads ''Tim [not Aldrich] tried to get me+ 

Jack to drive faster after MSHA [?] .... " The second, in the space allocated to Wednesday, 

December 17, reads: ''Tim driving over speed limit." Ex. C-5. 

19 There was a considerable amount of evidence introduced by both parties on Holden's 

skills, attitude and general value as an employee and co-worker. That evidence has not been 

discussed, because Respondent made clear that Holden's work schedule was not established 

based upon any perceived shortcomings he might have had as an employee. 

27 FMSHRC 412 
respect to the speed limit issue. 

ORDER 

For the reasons stated above, I find that Complainant has failed to carry his burden of 

establishing that justifiable circumstances existed for failing to timely file his complaint of 

discrimination with MSHA, with respect to the alleged March 2003 lay-off. In addition, I find 

that Complainant has failed to establish a prima facie case of discrimination as to either his 

March 2003, or January 15 to April 5, 2004, claim. Alternatively, I find that Ross Island has 

established that its determinations not to call Complainant to work during March 8 to 31, 2003, 

and January 15 to April 5, 2004, were the result of bona fide business reasons, and that it would 

have made the same decisions, regardless of any protected activity that Complainant might have 

engaged in.20 

Ross Island did not discriminate against Complainant in violation of the Act. 

Accordingly, the Discrimination Complaint, as amended, is hereby DISMISSED. 

Distribution: (Certified Mail) 

James E. Davis, Esq., Talbott, Simpson, Gibson & Davis, P.S., P.O. Box 590, Yakima, WA 

98907 

Richard C. Hunt, Esq., Barran and Liebman, 601SW2°d Avenue, Suite 2300, Portland, OR 

97204 

/mh 

20 Had Complainant established a prima facie case, Respondent would have established 

its affirmative defense to the claims. See Sec'y of Labor on behalf of Chacon v. Phelps Dodge 

Corp. , 3 FMSHRC 2508, 2516-17 (Nov. 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 

1983); Haro v. Magma Copper Co, 4 FMSHRC 1935, 1938 (Nov. 1982). 

27 FMSHRC 413 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, DC 20001·2021 

SECRETARY OF LABOR, 

:MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

April 29, 2005 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2004-164 

A.C. No. 15-17234-21221 

LONE MOUNTAIN PROCESSING, INC., 

Respondent. 

Docket No. KENT 2004-215 

A.C. No. 15-17234-23900 

Huff Creek No. 1 

DECISION 

Appearances: Neil Morholt, Esq., and MaryBeth Bernui, Esq., U.S. Department of Labor, 

Nashville, Tennessee, Elmer Keen1

, William Johnson2, and Danny Deel3, for the 

Petitioner; 

Noelle M. Holladay, Esq., and Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & 

Combs, Lexington, Kentucky, for the Respondent. 

Before: Judge Weisberger 

STATEMENT OF THE CASE 

These cases are before me based upon Petitions for Assessment of Civil Penalty filed by the 

Secretary of Labor (Secretary) alleging violations by Lone Mountain Processing , Inc. (Lone 

Mountain) of various mandatory safety standards set forth in Title 31 of the Code of Federal 

Regulations. The cases were heard in Johnson City, Tennessee, on January 19, 2005. Subsequent 

to the hearing the parties filed post hearing briefs . 

I. Docket No. KENT 2004-164 

A. Citation No. 7536380 

1 Mr. Keen represented Petitioner in Citation No. 7586387 

2 Mr. Johnson represented Petitioner in Citation No. 7536389. 

3

Mr. Deel represented the Petitioner in Citation No. 7536390. 

27 FMSHRC 414 
The Inspector's Testimony 

Lone Mountain operates the underground coal mine at issue. On November 24, 2003, MSHA 

inspector Robert D. Clay, a certified electrician and electrical inspector, inspected various circuit 

breakers located on a panel in the 003 unit. The breakers are designed to energize and de-energize 

mining equipment. He examined an energized 225 amp, 480 volt breaker, but was unable to 

determine which specific piece of equipment received power from this breaker. Clay traced the cable 

that had been plugged into the receptacle of the circuit breaker and observed that it ran to a roof 

bolter.4 

The parties stipulated that this circuit breaker was labeled "in numerals No. 6". (Tr. 14). A 

label, approximately 3 inches by 4 inches, had been placed directly above the circuit breaker. 

According to Clay, a miner who did not work on a regular basis on the section would not have any 

way of knowing what specific equipment was served by this circuit breaker. Accordingly, if such 

a person would be instructed to de-energize the breaker and disconnect a cable, he might 

inadvertently de-energize the wrong breaker. As a result when the miner would attempt to remove 

the disconnecting device he would receive serious bums and electrical shock which could be fatal. 

Clay opined that breakers are required to be identified as to the piece of equipment that they 

serve. He concluded that since the breaker at issue was not marked in this fashion, it had not been 

properly identified. He issued Citation No. 7536380 alleging a violation of 30 C.F.R. § 75.904 

which provides, as pertinent, that "[c]ircuit breakers shall be marked for identification." 

The Applicability of U.S. Steel Mining Co. 30 C.F.R. § 75.601 

In support of its position that a breaker must be identified as to the equipment it services, 

the Secretary relies on Secretary ofLaborv. U.S. Steel Mining Co., IO FMSHRC 1138, 1141 (Sept. 

1988). U.S. Steel, supra, involved an alleged a violation of 30 C.F.R. § 75.601, which requires 

disconnecting devices used to disconnect power from trailing cables to be plainly marked and 

identified. In U.S. Steel, supra, the operator was cited for having marked the receptacle on a panel 

to identify the specific circuit breaker that controlled the receptacle but did not mark the receptacle 

with the name of the piece of equipment that it served. The Commission held that the Secretary's 

position requiring that cable plugs and receptacles to be labeled identically was reasonable . 

The Secretary, in its brief, after discussing U.S. Steel, supra, argues that under "controlling 

case law" the "only reasonable interpretation" of Section 904, supra, is that the circuit breaker, plug, 

and receptacle be labeled in a similar manner. 

I find that this reliance is misplaced, as the issue presented in U.S. Steel, supra, is inapposite 

to the issue presented herein. In U.S. Steel, supra, the regulatory standard before the Commission, 

4The plug (Cathead) on this cable was labeled "roof bolter". (Tr. 14) 

27 FMSHRC 415 
Section 75.601, supra, contains language that is not similar to Section 904, supra, at issue herein. 

The operative phrase in Section 601, supra, provides as follows: "disconnecting devices used to 

disconnect power from trailing cables shall be plainly marked and identified." (Emphasis added.) 

In contrast, Section 904, supra, requires that circuit breakers shall be marked for identification. Thus, 

it does not follow that the Commission's holding in U.S. Steel, supra, must be extended to Section 

904, supra. In this connection, it is significant to note that the Commission, in U.S. Steel, supr~ at 

1142, explicitly stated that the case before it required it to construe only Section 601, supra," ... and 

we reserve construction of other standards addressing other concerns to cases raising such issues." 

Further, the specific issue presented before the Commission in U.S. Steel, supra, was whether 

the term "disconnecting device" in Section 601, supra, encompasses both the plug of a trailing cable 

and the receptacle. As such, the resolution of that issue is not germaine to the case at bar, which 

involves an interpretation of the scope of the requirement in Section 904, supra, that circuit breakers 

be marked for identification. 

Further Discussion 

Section 904, supra, sets forth in clear plain language that circuit breakers "shall be marked 

for identification". (Emphasis added.) Webster's Encyclopedic Unabridged Dictionary (1994 Ed.) 

(Webster's) defines marked as "* * * 3. having a mark or marks .... " A "mark" is defined in 

Webster's as * * * 5. "an affixed or impressed device, symbol, inscription, etc., serving to give 

information, identify .... " ''To mark" is defined in Webster's as follows: "v.t. ... 28. to put a 

distinguishing feature of ... 30. to furnish with figures, signs, tags, etc." Webster's defines 

"identification" as "l. the act of identifying." Webster's defines "identify" as "l. to recognize or 

establish as being a particular person or thing .... " 

Thus the plain meaning of the words in Section 904, supra, requires, merely, that the circuit 

breaker must be identified in some fashion. The evidence is clear and the parties have so stipulated, 

that the circuit breaker cited was labeled as No. 6. The corresponding receptacle was also labeled 

No. 6. Thus, the record establishes that the breaker at issue, labeled No. 6, was clearly marked in 

a fashion sufficient for identification.5 There is not any requirement in the plain unambiguous 

wording of Section 904, supra, that the breaker be identified as to the specific piece of equipment 

it is serving.6 To so find would have the effect of amending the regulation by setting forth an 

5 It is significant to note the uncontradicted and unimpeached testimony of Respondent's 

witnesses, Sheffield and Webb, that Lone Mountain has been using the numerical method of identifying 

circuit breakers since the mine opened in 1993, and has never been cited before for this method of 

marking. 

6 I take cognizance of Program Policy Letter No. POV-V-2(PPL) (effective June 17, 2003), which 

sets forth as follows: "Circuit breakers shall be marked to clearly identify the circuit or machine 

receiving power through the circuit breaker ... . In order to comply with the provisions of Sections 

75.601, 75.903, 75.904, an example is to label the loading machine cable plug, receptacle, and the circuit 

breaker through which the loading machine is receiving power as 'loader"'. (Government Exhibit 1) 

27 FMSHRC 416 
additional requirement. Such a step would require notice and comment. 

For all the above reasons, I conclude that the Secretary has not established that Lone 

Mountain violated Section 904, supra, and accordingly, Citation No. 7536380 should be dismissed. 

II. Docket No. KENT 2004-215 

A. Citation No. 7536387 

According to Clay, on November 24, 2003, he observed that a pilot circuit wire was not 

connected at the belt starting box enclosure for the No. 2 belt drive motor. Clay concluded that 

because the pilot wire had not been connected, there was not a complete monitoring circuit for the 

motor starter enclosure. Clay issued a citation alleging a violation of 30 C.F.R. § 75.902 which 

provides, as pertinent, that "grounded systems shall include a fail-safe ground check circuit to 

monitor continuously the grounding circuit to assure continuity which ground check circuit shall 

cause the circuit to open when either the ground or pilot check wire is broken .... " 

Lone Mountain argues that the Secretary did not establish that it (Lone Mountain) violated 

Section 75.902, supra, in that the Secretary failed to prove that the belt drive did not include a failsafe ground check circuit, or that ~ pilot wire was not connected to monitor the system. In this 

connection, Lone Mountain relies on testimony of Sheffield that~ pilot wire was connected which 

monitored the entire belt drive system. In essence, according to Sheffield, the belt drive system 

consisted of four motors powered by two cables that ran from the power center to the belt starter box. 

He said that each of the cables had a ground wire and a pilot wire and only one of these needed to 

be connected to monitor the belt drive system. However, his explanation that only one pilot wire, 

is sufficient to protect the entire belt drive system, including all four motors is confusing and not 

clear. In this connection, Sheffield's testimony is as follows: 

Q. Let's talking about P 1. (Sic) [the pilot indicator in exhibit R3]. 

A. P 1. was continuous through the circuit to the belt motors, the way it was 

supposed to be. 

Q. So, w·as it connected as required under law? 

A. Yes. (Tr. 138) 

*** 

The Secretary aruges that this interpretation of Section 904, supra, should be given deference. However, 

because the plain meaning of Section 904, supra, is clear and unambiguous, there is not any mandatory 

requirement to give deference to the Secretary's interpretation as set forth in the PPL. (See, Chevron 

U.S.A. Inc. v. Natural Resources Defense Counsel, Inc. 467 US 837, 843 (1984). 

27 FMSHRC 417 
A. No. What was cited, if I could explain: This shows one pilot wire being 

used. This supply cable - these cables are identical and they both go back to the 

power center. You don't use this monitor wire; you only use one. And back at the 

power center it stays - this receptacle uses a pilot interlock jumper in the plug. Do 

not connect the pilot wire in the trailing cable jumper to the two pilot ends and the 

plugs. So, we only use one of the pilot wires. The cables are identical, so you only 

use the pilot wire in this case. (Tr. 140-141) 

*** 

A. Okay. And then on these motors, I won't draw the phases, but each motor 

has a cable going to it. 

Q. Out of the starting box? 

A. Out of the starting box. Each one of them has a ground on all four 

motors. Do you want me to put all four of them on there? (Tr. 151) 

*** 

Q. Tell me why that satisfies the regulation that we're talking about. 

Why is that a pilot monitor system? 

A. Because it is monitoring continuously ... 

Q. And how is it monitoring continuously? 

A. . .. and in this system it [the pilot wire inside cable "A" depicted in 

Exhibit R-5] is internally connected in the plug, it comes into the starter, which it 

actually ties into the pilot wire, and you can tie it into one of these cables or you can 

tie it into all four cables. As far as the law goes, it really doesn't matter. Internally, 

every one of these 4-aught cables has a monitor wire. You can come down and tie 

it into the one in this cable, bring it down here, tie it to ground in this motor. 

Q. Tie it to the ground in this motor? 

A. Or to the frame in this motor, not to the ground. Tie it in a different 

location, which connects the whole one piece of equipment which has multiple 

motors. 

Q. Will that complete the circuit, then, for this pilot monitoring? 

A. Yes. (Tr. 152 - 153) 

27 FMSHRC 418 
*** 

Q. Okay. Now, without going through all of this, this pilot wire in this 

"B-system cable", let's say, is that pilot wire connected, or was that pilot wire in this 

particular situation connected this cathead, ... 

A. No. 

Q. . .. the plug? 

A. No sir. 

Q. And why not? 

A. Because in this system you only use the pilot wire in this cable. 

Q. Which is System A? 

A. Syst -- Cable A. 

Q. Yes. 

A. And it interlocks through the cathead of Cable B. (Tr. 155 - 156) 

*** 

Q. That's okay. That's okay. I want the simplest way to explain it 

whatsoever. Is there an interconnection? 

A. Yes, there is an interconnection in the power center itself. 

Q. In the power center. 

A. Yeah. The pilot wire comes through. 

Q. Yes sir. 

A. These are closed. 

Q. The pilot wire is System A. 

A. And pilot wire in Cable A, ... 

Q. Yes. 

27FMSHRC419 
A. ... or System A, comes over, goes back into the receptacle that feeds 

CableB. 

Q. Yes sir. 

A. It actually interlocks through two internal prongs, comes back into the 

power center, which makes up the ground-check circuit. (Tr. 156 - 157) 

*** 

Q. In other words, the Cable B, the power, the three power leads to Cable 

B, do they come into this starting box? How do they get to these motors? ... 

A. You've got two contactors. Two motors are run by this power cable. 

Q. Which power cable? 

A. These two motors are run by Power Cable B. (Tr. 159) 

*** 

THE COURT: Are you now saying that coming out of the starter box there 

were two cables from the A System going to two other motors? 

A. That's basically how it works, yes. Feeding from A and from B. (Tr. 

160) 

*** 

Q. Okay, Mr. Sheffield, I guess first of all, the whole idea, let me ask 

you, is to provide a pilot monitoring for what here? 

A. The belt drive. 

Q. The belt drive 

A. Yes. 

Q. And the belt drive is composed of how many motors? 

A. Four motors. 

Q. So, are we trying to monitor the motors, then, the pilot to the motors? 

27 FMSHRC 420 
What are we trying to monitor? 

A. We're monitor this. It's one piece of equipment. 

THE COURT: If "this" the belt drive? 

A. Yes. 

Q. So the belt drive, is that the one system that we're trying to monitor? 

A. Yes. 

Q. Okay. Now, this system, then, this belt-drive system, we're having 

power coming in from how many different places? 

A. Two different power feeds: AC/DC. 

Q. AC and DC. All right. So, is A and B both part of this whole system 

to power this drive? 

A. Yes. 

Q. Now within A and B, let me just ask you this: If you have to have a 

pilot monitor, do you have to have a pilot monitor wire connection in A and B? 

A. No. Sir. 

Q. And why not? 

A. Because they are interconnected through the interlocked circuit of 

Cable B. going internally into the power center. 

Q. So, if we only have a pilot monitoring system in Cable A, does that 

provide the monitoring system for the entire drive? 

A. Yes sir. 

Q. Does it provide it for the entire four motors of that drive? 

A. Yes sir. (fr. 161-162) 

*** 

27 FMSHRC 421 
Thus, I find that Sheffield's testimony fails to convincingly establish how there can be a 

complete circuit for the entire belt system, i.e., from the power center, through all four motors and 

back to the power center, if there are two cables running to the power center, one of which does not 

have the pilot ground wire connected to the circuit box. 

Therefore, for all the above reasons. I find that the Secretary has established that Lone 

Mountain violated Section 902, supra. Considering all the factors set forth in Section 1 IO(i) of the 

Act, I find that a penalty of $60.00 is appropriate. 

B. Citation No. 7537389 

In the inspection on November 24, Clay observed that a conduit leading to the No. 4 

continuous haulage bridge carrier was cut in two locations, and that the pick breaker handle was 

missing. Clay issued a citation alleging a violation of 30 C.F.R. § 75.503, which, in essence, 

provides that electrical equipment used inby the last open crosscut be maintained in a "permissible 

condition". 

According to Clay, the purpose of the conduit was to protect the power cable within and to 

eliminate a possible flame path in the event of a methane release. Clay indicated that the interior 

cable was exposed in the two locations where the conduit was damaged. 

Clay opined that the lack of a handle made the pick breaker non-permissible because " ... it 

comes approved in a certain manner by Mine Safety and Health. (Sic.) And that piece of equipment 

being approved in its entirety is with the permissible and explosion-proof covers on it; and that 

includes handles and lock-washers, and everything that goes with it." (Tr. 175) Aside from this 

opinion, the Secretary did not proffer any documentary evidence to establish the permissibility of 

the pick breaker, i.e., that a handle was required to make it permissible. 

"Permissible" is defined in Section 318(i) of the 1977 Mine Act, 30 U.S.C. § 801, supra, et 

·seq., and 30 C.F.R. §75.2(i) as follows: 

"[P]ermissible' as applied to electric face equipment means all electrically operated 

equipment taken into or used inby the last open crosscut of an entry or a room of any 

coal mine the electrical parts of which ... are designed. constructed. and installed, that 

such equipment will not cause a mine explosion or mine fire, and the other features 

of which are designed and constructed, in accordance with the specification of the 

Secretary, to prevent, to the greatest extent possible, other accidents in the use of 

such equipment .... [Emphasis added.] 

Based on this definition, it appears that the test of permissibility regarding a non-electrical 

feature, i.e., a handle, is based on the specification of the Secretary. In the case at bar, the Secretary 

has failed to adduce any evidence or make any reference to any of the Secretary's specifications that 

would indicate that the pick breaker at issue requires a handle in order to be permissible. Further, 

27 FMSHRC 422 
that the pmpose of permissibility is to assure against a mine explosion or fire. (See, Solar Fuel Co., 

3 FMSHRC 1384 (June 1981)). The inspector did not explain how the missing handle contributed 

to a risk of a fire or an explosion. According to the uncontradicted testimony of Webb, although the 

handle was missing, there was no damage to the shaft, and the breaker could still be de-energized 

at the power center by pulling the cathead or plug. 

According to the citation issued by Clay, a 480 volt power cable was exposed because of a 

cut in the conduit. However, on cross-examination, he indicated that "this was a 480 volt system; 

.... " (Tr. 177), but admitted that he did not know the voltage of the cable. On the other hand, Webb 

indicated, in testimony that was not contradicted or impeached, that the cable at issue was a 

communication cable carrying approximately two volts, and that the purpose of the cable was to 

transmit computer signals. The Secretary has not proffered any evidence to establish that such a 

cable must be permissible. Indeed, Clay admitted on cross examination that "the law" does not 

require communication cables to be in a conduit. (Tr. 178) 

Within the framework of this evidence, I find that the Secretary has failed to establish that 

the cited conditions regarding the conduit, and pick breaker handle, made any equipment nonpermissible. Thus, I find that it has not been established that Lone Mountain violated Section 503, 

supra. 

C. Citation No. 77537390 

According the Clay, the conduit leading into the No. 2 continuous haulage bridge carrier had 

been cut in two locations. The cuts were approximately one-half inch wide and one inch long. Clay 

indicated that the purpose of the conduit was to protect the power cable within, and eliminate a 

possible flame path in the event of a methane release. Clay cited Lone Mountain for violating 

Section 503, supra. 

According to Clay, there was not any damage to the cable enclosed within the conduit. 

Further, based on the uncontradicted and unimpeached testimony of Webb, the capacity of the cable 

at issue was approximately two volts and served as a communication cable similar to that discussed 

regarding Citation No. 7536389. Aside from the Secretary's assertion in its brief that the cut "was 

clearly violative of the permissibility requirement", the Secretary did not adduce any evidence 

establishing such a communication cable was required to be permissible. Essentially for the same 

reasons set forth above regarding Citation No. 7537389 I find that the Secretary herein has not 

established a violation under Section 503, supra. 

D. Citation Nos. 7536378, 7536381. 7536382, 7536383, 7536384, 7536385, 7536391. 

and 7536392 

The parties filed a Joint Motion to Approve Settlement of the civil penalty proceedings 

regarding these citations. The original assessment for these citations was $1,824.00. The parties 

agreed to settle for a penalty of $756.00. Based on the parties' representations, and the record 

27 FMSHRC 423 
regarding these citations, I find that the proposed penalty is proper within the framework of the 

Federal Mine Safety and Health Act of 1977, and I grant the Motion. 

Order 

It is Ordered that, within 30 days of this decision, Respondent pay a total civil penalty of 

$816.00 based on the parties' settlement, and the violation of Section 75.902, supra. It is further 

Ordered that Citation Nos. 7536380, 7537389, and 7537390 be Dismissed. 

~~ Avram Weisberger 

Administrative Law Judge 

Distribution List: (Certified Mail) 

Neil Morholt, Esq., and MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Department of Labor, 

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

Elmer Keen, CLR, and William Johnson, CLR, U.S. Department of Labor, MSHA, 3837 Route U.S. 

Highway 25-E, Barbourville, KY 40906 

Danny Deel, CLR, U.S. Department of Labor, MSHA, 100 Fay Ramsey Lane, Pikeville, KY 41501 

Noelle M. Holladay, Esq., and Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, LLP, 250 

West Main St., Suite 1600, Lexington, KY 40507 

/sb 

27 FMSHRC 424