SEPTEMBER 2005 

COMMISSION DECISIONS AND ORDERS 

09-20-2005 Webster County Coal, LLC. 

09-20-2005 Service Transport, LLC. 

09-27-2005 Calmat Company of Arizona 

ADMINISTRATIVE LAW .JUDGE DECISIONS 

09-08-2005 Daniel B. Lowe v. Southwest Division, 

Aggregate Industries and Robert M. Friend 

09-28-2005 Hubble Mining Company, LLC. 

09-30-2005 Higman Sand & Gravel, Inc. 

i 

KENT 2004-67 

LAKE 2005-121-M 

WEST 2004-86-M 

WEST 2005-246-DM 

VA 2005-17 

CENT 2005-54-M 

Pg.611 

Pg.614 

Pg.617 

Pg.629 

Pg.639 

Pg.641 

SEPTEMBER 2005 

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

Review was denied in the following case during the month of September: 

Secretary of Labor, MSHA v. Original Sixteen to One Mine, Inc., Docket Nos. 

WEST 2004-330-M, WEST 2004-272-M. (Judge Melick, August 19, 2005) 

ii 

COMMISSION DEOSIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

AD:rv.DNISTRA TION (MSHA) 

v. 

WEBSTER COUNTY COAL LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 20, 2005 

Docket No. KENT 2004-67 

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

ORDER 

BY THE COMMISSION: 

On August 31, 2005, the Secretary of Labor filed with the Commission a Motion to 

CGrrect the Decision Approving Settlement issued in these proceedings by Commission 

Administrative Law Judge T. Todd Hodgdon on November 8, 2004. The Secretary seeks to 

correct a mistake her counsel made in calculating the total penalty amount, which was 

subsequently submitted to the judge. The judge's order became a final order of the Commission 

40 days after its issuance. 30 U.S.C. § 823(d)(l). Under Commission Procedural Rule 69(c), a 

judge may correct clerical errors in a final order with leave of the Commission. 29 C.F.R. 

§ 2700.69(c). 

27 FMSHRC 611 
Upon consideration of the Secretary's motion, it is granted. We reopen the case, remand 

the matter to the judge, and grant him leave to correct the error. 

27 FMSHRC 612 
Distribution 

Thomas A. Grooms, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

618 Church Street, Suite 230 

Nashville, TN 37219-2456 

Thomas C. Means, Esq. 

Crowell & Moring, LLP 

1001 Pennsylvania Ave., N.W. 

Washington, D.C. 20004-2502 

Toni Balot 

Office of Assessments 

U.S. Department of Labor 

1100 Wilson Blvd., 2!51 Floor 

Arlington, VA 22209-3939 

Administrative Law Judge T. Todd Hodgdon 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 613 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

:tv1INE SAFETY AND HEALTH 

ADl\111NISTRA TION (MSHA) 

v. 

SERVICE TRANSPORT, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

September 20, 2005 

Docket No. LAKE 2005-121-M 

A.C. No. 12-00066-57245 K536 

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 August 15, 2005, the Commission received a letter from 

counsel for Service Transport, l.LC ("Service Transport") which we construe as a motion to 

reopen a penalty assessment that purportedly 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 te notify the Secretary, the proposed penalty assessment 

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

On May 23, 2005, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued to Service Transport a proposed penalty assessment. Mot. at Attach. Service 

Transport contested the proposed penalty assessment in a letter dated June 20, 2005 and sent to 

the Department of Labor's Office of the Solicitor.in Chicago, Illinois, with a copy also sent to the 

Commission. Id. Neither the Office of the Solicitor or the Commission processed the contest, as 

this is normally done by MSHA's Civil Penalty Compliance Office. The Secretary does not 

oppose Service Transport's request for relief. 

Here, Service Transport attempted to timely contest the proposed penalty assessment, but 

27 FMSHRC 614 
was under the mistaken impression that it had.to file its contest at the Commission. Indeed, the 

cover sheet routinely accompanying proposed assessments states: "30 CPR 100.7 gives you 30 

days to either pay the Proposed Assessment or contest the Proposed Assessment with the Federal 

Mine Safety and Health Review Commission." These instructions further specify that if an 

operator wishes "to contest ... just some of the violations listed in the Proposed Assessment," 

the contest must be sent to MSHA's Civil Penalty Compliance Office. 

Under thes~ circumstances, we conclude that the company's contest sent to the Solicitor· 

of Labor and the Commission on June 20, 2005 constituted timely notification of the Secretary 

under section 105(a) of the Mine Act of its intention to contest the proposed penalty. 

Accordingly, the proposed penalty assessment is not a final order of the Commission. 

We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This 

case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. 

Part 2700. 

27 FMSHRC 615 
Distribution 

Robert A. Dimling, Esq. 

Frost, Brown, Todd, ILC 

2200 PNC Center 

201 East Fifth St. 

Cincinnati, OH 45202-4182 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22°d Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

27 FMSHRC 616 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

V. 

SUITE9500 

WASHINGTON, DC 20001 

September 27, 2005 

CALMAT COMPANY OF ARIZONA 

Docket No. WEST 2004-86-M 

BEFORE: Duffy, Chairman; Jordan, ~uboleski, and Young, Commissioners 

DECISION 

BY: Jordan, Suboleski, and Young, Commissioners 

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

1977, 30 U.S.C. § 801 et seq. (2000) ("Mine Act"), Administrative Law Judge Gary Melick 

upheld an order and a citation issued by the Department of Labor's Mine Safety and Health 

Administration ("MSHA") to Calmat Company of Arizona ("Calmat") alleging that Calmat had 

violated mandatory training and safety standards. 26 FMSHRC 409 (May 2004) (AU). Calmat 

filed a petition for discretionary review of the judge's decision, which the Commission granted. 

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

I. 

Factual and Procedural Background 

Calmat operates a facility in Phoenix, Arizona, that consists of an aggregate mine, a 

"ready-mix" concrete batch plant, and an asphalt batch plant. Jt. Stip. 1; Tr. 154, 187. On 

August 11, 2003, MSHA Inspector Enrique Videl was at the facility to conduct an inspection of 

the mine and maintenance shop. 26 FMSHRC at 410; Jt. Stip. 13. After a pre-inspection 

conference at the facility's main office, Inspector Videl walked outside and observed a man who 

was atop a Caterpillar 773B End Dump Truck ("Cat 773" or "haul truck") that had been loaded 

onto an over-the-road "Low Boy" tractor-trailer for transport off the property. 26 FMSHRC at 

410; Jt. Stips. 13 & 14; Tr. 87, 101-04; Gov't Ex. P-3 (photograph taken by Inspector Videl 

27 FMSHRC 617 
showing actual observation). The man was not wearing any fall protection. Jt. Stip. 13; Tr. 87. 

He was the driver of the Low Boy and an independent contractor hired by Pacific Tri-Star, Inc., a 

used, heavy-equipment dealer with which Calmat had negotiated the sale of the Cat 773. 

26 FMSHRC at 410-11; Jt. Stip. 14; Tr. 113. Inspector Videl thereupon issued Calmat an 

imminent danger order for failure to provide site-specific training to the driver, 1 along with a 

citation for failure to provide him with safe access atop the Cat 773.2 26 FMSHRC at 410; Gov't 

Ex. P-5 (copies of order and citations). 

At the time of the alleged violations, the Low Boy holding the Cat 773 was parked on a 

flat, dirt road adjacent to another dirt road in the vicinity of the concrete batch plant. 

26 FMSHRC at 411; Jt. Stip. 19; Tr. 88-91. The area was located near a pile of aggregate t~ be 

used by the processing center of the concrete batch plant to produce ready-mix, as well as near 

the ready-mix truck parking lot and slump racks where ready-mix drivers clean their trucks and 

add water to loads. Jt. Stip. 19. A second Low Boy tractor-trailer holding another Cat 773 was 

parked nearby. 26 FMSHRC at 410-11; Tr. 151; Gov't Ex. P-3. 

Calmat challenged the order and citation solely on the basis that the alleged violations 

occurred in an <1rea of the facility that Calmat contends is excluded _from MSHA' s jurisdiction by 

an lnteragency Agreement between MSHA and the Occupational Safety and Health 

Administration ("OSHA"). 26 FMSHRC at 409. At the hearing, Calmat stated that, absent the 

existence of the concrete and asphalt batch plants at the facility, there would·be no dispute 

because MSHA would have sole jurisdiction over the facility. Tr. 16-17. Calmat also agreed 

that, if MSHA's jurisdiction were found to be proper, it would pay the proposed penalties. 

26 FMSHRC at 409 n.l. 

After examining the Mine Act's definition of "coal or other mine" and accompanying 

legislative history, the judge held that because "the area in which the violations were cited was a 

private way or road appurtenant to 'an area of land from which minerals are extracted,"' the area 

fell within the statutory definition of a mine. 26 FMSHRC at 409-11. The judge further held 

that "unless specifically excluded by the Interagency Agreement as a c,oncrete batch plant the 

cited area was within [MSHA' s] jurisdiction." Id. at 411. The judge went on to find that, being 

approximately 400 feet away, the site of the alleged violations was a significant distance from the 

processing center for the concrete batch plant but near an aggregate stockpile used to supply it. 

1 The order alleges a violation of 30 C.F.R. § 46.ll(b)(4). Section 46.11 states, in 

pertinent part, that "(b) You must provide site-specific hazard awareness training, as appropriate, 

to any person who is not a miner as defined by § 46.2 of this part but is present at a mine site, 

including: ... (4) Customers, including commercial over-the-road truck drivers .... " 

2 The citation alleges a violation of 30 C.F.R. § 56.11001, which requires that "[s]afe 

means of access shall be provided and maintained to all working places." 

27 FMSHRC 618 
Id. 3 However, the judge concluded that since the site was not within the area of the mine that the 

Interagency Agreement intended to exclude from the Mine Act's coverage - i.e., the concrete 

batch plant or its stockpiles - the site was within MSHA's jurisdiction. Id. Accordingly, the 

judge affirmed the order and citation and assessed civil penalties totaling $2,975.00, the amount 

proposed by the Secretary for the two violations. Id. 

II. 

Disposition 

On appeal, Calmat continues to base its challenge to MSHA's jurisdiction on its claim 

that the conduct for which Calmat was cited "occurred at a location squarely within the concrete 

batch plant and, therefore, beyond MSHA's jurisdiction under the Interagency Agreement." 

C. Amended Br. at 2.4 Calmat contends that the judge failed to address the issue of which area of 

the·facility constitutes the concrete batch plant exempt from MSHA's jurisdiction under the 

Interagency Agreement. C. Amended Br. at 4-6. Calmat maintains that the site of the alleged 

violations was completely surrounded by components of the concrete batch plant and that 

activities that took place on the road adjacent to the area cannot be attributed to the entire facility. 

C. Reply Br. at 5-7. Calmat argues that the judge further erred in finding that the site of the 

alleged violations was a private way or road appurtenant to a mine and that past use of the haul 

trucks in mining operations provided a sufficient basis for MSHA's exercise of jurisdiction in 

this case. C. Amended Br. at 7-8, 9-11; C. Reply Br. at 3-4, 9-12. Finally, Calmat asserts that it 

did not receive notice that the functional and operational areas of its concrete batch plant are 

regulated by MSHA. C. Amended Br. at 12; C. Reply Br. at 12-15. 

The Secretary responds that the judge correctly concluded that the site of the alleged 

violations was subject to MSHA's jurisdiction because the area is adjacent to a road that 

originates at one of the entrances to the facility and extends through the facility to the excavation 

pit. S. Br. at 9-17. She asserts that the judge also correctly concluded the-haul truck, atop which 

the man was standing, had been used in the past lo haul mine product and that use provides an 

additional basis for MSHA's jurisdiction in this case. Id. at 17-22. The Secretary argues that the 

judge correctly determined that neither the haul truck nor the area in which it was parked is 

3 See 26 FMSHRC at 410 (judge's reference to area "B''); Tr. 114-15 (inspector's 

testimony that haul trucks were approximately 400 feet from the processing center for the 

concrete batch plant at area "B"). 

4 Calmat designated its petition for discretionary review and accompanying 

memorandum of points and authorities as its opening brief. Letter dated July 26, 2004. On 

September 14, 2004, the Commission received Calmat's notice of errata and amended 

memorandum of points and authorities, which deleted five lines of text and added four lines of 

text. While this filing occurred after the Secretary filed her brief, she neither objected nor 

responded. 

27 FMSHRC 619 
excluded from MSHA's jurisdiction because neither was within an area specifically excluded by 

the Interagency Agreement. Id. at 22-26. The Secretary contends that, pursuant to the language 

and purpose of the Mine Act and the Interagency Agreement, Calmat had fair notice that the haul 

truck and the area in which it was parked are subject to MSHA's jurisdiction. Id. at 26 n.8 . 

. Section 4 of the Mine Act provides in part that "[e]ach coal or other mine ... shall be 

subject to the provisions of thjs Act." 30 U.S.C. § 803. "Coal or other mine" is defined in 

section 3(h)(l) of the Act as: 

(A) an area of land from which minerals are extracted in nonliquid form or, if in 

liquid form, are extracted with workers underground, (B) private ways and roads 

appurtenant to such area, and (C) lands, excavations, underground passageways, 

shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, 

tools, or other property including impoundments, retention dams, and tailings 

ponds, on the surface or underground, used in, or to be used in, or resulting from, 

the work of extracting such minerals from their natural deposits in nonliquid form, 

or if in liquid form, with workers underground, or used in, or to be used in, the 

milling of such minerals, or the work of preparing coal or other minerals, and 

includes custom coal preparation facilities. In making a determination of what 

constitutes mineral milling for purposes of this Act, the Secretary shall give due 

consideration to the convenience of administration resulting from the delegation 

to one Assistant Secretary of all authority with respect to the health and safety of 

miners employed at one physical establishment. 

30 U.S.C. § 802(h)(l). Pursuant to subsection (C)'s language requiring that the Secretary, in 

making a determination of what constitutes mineral milling for purposes of the Mine Act, give 

due consideration to the convenience of delegating to one Assistant Secretary the authority over 

the health and safety of miners employed at one physical establishment, MSHA and OSHA 

.entered into an Interagency Agreement.5 44 Fed. Reg. 22,827 (Apr. 17, 1979), amended by 48 

Fed. Reg. 7,521 (Feb. 22, 1983). 

Under the Interagency Agreement, some operations which could be considered "mineral 

milling" are regulated by MSHA while others are regulated by OSHA. Paragraph B.6.b., which 

delegates to OSHA jurisdiction over, among other things, concrete and .asphalt batch plants, 

including those located on mine property, is relevant to the Calmat facility in this case. 44 Fed. 

Reg. at 22,828. Also, Appendix A of the Interagency Agreement provides that, with regard to 

concrete ready-mix or batch plants, OSHA's jurisdiction commences upon arrival of sand and 

gravel or aggregate at the plant stockpile. Id. at 22,830. 

5 Under section 4 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et 

seq. (2000) ("OSH Act"), OSHA has jurisdiction to regulate the working conditions of only those 

employees whose occupational health and safety is not regulated by other federal agencies or by 

state agencies pursuant to the OSH Act. 29 U.S.C. § 653(b)(l). 

27 FMSHRC 620 
A. Whether the Secretary Properly Exercised MSHA's Jurisdiction 

In determining whether the Secretary has adhered to the Interagency Agreement in 

exercising MSHA's jurisdiction in this case,6 the agreement as well as common sense dictates 

that we examine both the location where the cited conduct occurred and the nature of the conduct 

itself. The terms of the Interagency Agreement are clear that both work locations and work 

functions are important in determining the respective jurisdiction of the two agencies.7 

Moreover, focusing only on the location of the work, as Calmat urges (see C. Amended Br. at 6, 

11; C. Reply. Br. at 5), would permit an operator at a facility, where there is both OSHA and 

MSHA-regulated work, to escape enforcement of one agency's regulations by moving the work 

to an area of the facility considered to be geographically outside that agency's jurisdiction. 

While there is no allegation that such conduct occurred here, we must be mindful of the potential 

for abuse in other cases.8 

In reviewing the judge's factual determinations, the Commission is bound by the terms of 

the Mine Act to apply the substantial evidence test. See 30 U.S.C. § 823(d)(2)(A)(ii)(I). 

"Substantial evidence" means "'such relevant evidence as a reasonable mind might accept as 

adequate to support [the judge's] conclusion."' Rochester & Pittsburgh Coal Co., 11 FMSHRC 

6 Given Calmat's position that, absent a finding the cited conduct occurred within the 

concrete batch plant area of its facility, MSHA's jurisdiction would be appropriate, we do not 

address the basis for MSHA's jurisdiction under section 3(h)(l). 

7 As previously noted, Paragraph B.6.b. of the lnteragency Agreement assigns concrete 

batch plants, i.e., locations, to OSHA's jurisdiction, but Appendix A specifies that OSHA's 

regulatory authority does not begin until after arrival of product at the stockpile. 44 Fed. Reg. at 

22,828, 22,830. Another example of how the lnteragency Agreement relies upon both location 

and function appears in Paragraph B.4. which provides that the term "milling" may be expanded 

to include processes that are related, technologically or geographically, or narrowed to exclude 

processes that are unrelated, technologically or geographically. Id. at 22,828. In addition, 

Paragraph B.5. then lists several factors to be considered in determining what constitutes milling 

and whether a physical establishment is subject to authority by MSHA or OSHA, including the 

processes conducted at the facility. Id. 

8 Our approach here is consistent with previous cases involving jurisdictional questions 

governed by the Inter~gency Agreement, where the Commission has examined various work sites 

as well as the functions performed and the processes conducted to determine MSHA's 

jurisdiction under the Mine Act. E.g., Watkins Engineers & Constructors, 24 FMSHRC 669, 

672-76 (July 2002); Drillex, Inc., 16 FMSHRC 2391, 2394-96 (Dec. 1994); W. J. Bokus Indus., 

Inc. , 16 FMSHRC 704, 705-08 (Apr. 1994); see also Donovan v. Carolina Stalite Co., 734 F.2d 

1547, 1551-55 (D.C. Cir. 1984) (considering physical proximity and operational integration to 

determine that slate gravel processing facility constituted a mine within Mine Act). 

27 FMSHRC 621 
2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

We also keep in mind the words of the Senate Committee responsible for drafting the Mine Act: 

The Committee notes that there may be a need to resolve jurisdictional conflicts, 

but it is the Committee's intention that what is considered to be a mine and to be 

regulated under this Act be given the broadest possibl[e] interpretation, and it is 

the intent of this Committee that doubts be resolved in favor of inclusion of a 

facility within the ~overage of the Act. 

S. Rep. No. 95-181, at 14 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human 

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 602 (1978). 

The judge concluded that the area in which the cited conduct occurred was not within the 

area of the facility over which OSHA, according to the Interagency Agreement, had jurisdiction 

(i.e., the concrete batch plant or its stockpiles) but, rather, a flat area adjacent to a dirt roadway 

that ran through the facility from one of the entrances. 26 FMSHRC at 411. With regard to 

exactly where the Cat 773 was located, Joint Stipulation 19 states "the Cat 773 was ·located on a 

roadway" (emplilasis added). Inspector Videl testified the area where the haul trucks were parked 

was a flat, dirt roadway, and he also estimated the area was merely 10 to 15 feet from another 

roadway used in entering and exiting the facility by himself and many others, such as Calmat' s 

miners, other employees, and contractors, including aggregate truck drivers and mine 

maintenance contractors. Tr. 88-95, 124-25; see 26 FMSHRC at 411 (noting alleged violations 

occurred adjacent to the roadway used by various vehicles, including those of miners coming to 

and leaving work, trucks carrying mine personnel, and trucks used to maintain mine equipment). 

Despite Joint Stipulation 19, Calmat argues the cited conduct took.place on "raw land" 

near a road, not "on" a road. See C. Amended Br. at 9, 11; C. Reply Br. at 5, 9. Calmat can go 

no further, however, conceding the site at issue ''was not necessarily a functional 'component' of 

the concrete batch plant." C. Reply Br. at 5. Nevertheless, it urges that we overturn the judge's 

factual finding because the cited conduct occurred in an area that was complet~ly surrounded by 

components of the batch plant. C. Amended Br. at 6, 11. 

We do not entirely agree with Calmat's description of the area. As the judge found, the 

processing center for the concrete batch plant was 400 feet away from where the cited conduct . 

took place. 26 FMSHRC at 411; see n.4, supra.9 While the concrete batch plant stockpiles were 

9 While Calmat is correct that the judge eqoneously referred to the "processing center of 

the concrete batch plant" as the "concrete batch plant," we believe the judge's error is harmless. 

See 26 FMSHRC at 410 & 411; C. Amended Br. at 4-6. The judge clearly states his 

understanding of the several areas excluded from MSHA's jurisdiction by the Interagency 

Agreement as follows: "It is ... undisputed that certain areas are excluded from Mine Act 

jurisdiction by the Interagency Agreement. The Secretary acknowledges that these excluded 

areas include the concrete batch plant (area 'B' on Exhibit R-1) and the specific aggregate 

27 FMSHRC 622 
considerably closer, also nearby was a maintenance shop a! which mechanical work was 

performed on the haul trucks. Jt. Stip. 10. MSHA inspected the shop, and employees, including 

miners, checked in and attended safety meetings at the shop. Jt. Stips. 10 & 11; Tr. 75. 

Significantly, there was no fence or other clear demarcation line between the areas of the mine 

and those of the concrete batch plant. 

In addition, Stephen Buckner, Calmat's plant manager, testified that the area at issue was 

not part of the concrete batch plant. Tr. 177-79. He further admitted that his choice of that area 

for loading the haul trucks onto the Low Boys had nothing to do with the concrete batch plant. 

Tr. 227. The site was selected because the LowBoy tractor-trailers onto which the haul trucks 

were being loaded are very long trucks and it was the "best," "safest," and "emptiest" place that 

was near to a road. Tr. 226-27. 

Thus, the site of the alleged violations is a part of the facility that was not solely devoted 

to either MSHA-regulated aspects or OSHA-regulated· aspects of the work performed there, and 

the site was near to both mining-related areas as well as the concrete batch plant. Consequently, 

an examination of the functions being performed that gave rise to the order and citation are 

appropriate. 

It is clear that the cited conduct of the independent contractor had nothing to do with 

Calmat' s concrete batch plant operations but, rather, occurred in connection with Calmat' s 

mining operations. The Joint Stipulations indicate that the haul trucks had been used in functions 

at Calmat's facility that are indisputably subject to the Mine Act (i.e., prior to the arrival of 

product at the stockpile when, pursuant to Appendix A of the Interagency Agreement, OSHA's 

jurisdiction commences). Joint Stipulations 14 through 16 state, in part: 

14 .... The Cat 773 was a 50 Ton End Dump Truck which Respondent 

had used in its mining operations. In August 2002, however, the Cat 773 was 

relegated to Respondent's bone yard because it was inoperable for mining 

purposes - it had a cracked frame ..... 

15. During its active use by Respondent prior to August 2002, the Cat 773 

was driven only by Respondent's miner employees, i.e., those who had received 

new miner or refresher miner training under the [Mine] Act. 

16. The Cat 773 was used primarily, if not exclusively, as a hauler. A 

loader would excavate rocks and minerals from the pit and place the material 

inside the Cat 773. Then, the Cat 773 would haul the material to the feed hopper. 

stockpiles associated with the concrete batch plant (areas P Yi, P 3/8, P 1 Vi, PL and PS on 

Exhibit R-1)." 26 FMSHRC at 410. Moreover, in his ultimate finding describing the area 

excluded from MSHA • s jurisdiction, the judge refers to both the concrete batch plant and its 

stockpiles. Id. at 411. 

27 FMSHRC 623 
Jt. Stips. 14-16 (emphases added). See Justis Supply & Machine Shop, 22 FMSHRC 1292, 1296 

(Nov. 2000) (holding dragline assembly site was a mine and dragline was equipment used in 

mining subject to Mine Act). 

Calmat argues that the prior sale of the haul trucks removes them from MSHA' s. 

jurisdiction (C. Reply Br. at 14), but we cannot agree. As the facts underlying the order and 

citation show, the haul trucks remained at Calmat's facility pursuant to its interest and under its 

control. Witnesses, including Calmat's plant manager, testified that a mine mechanic drove the 

haul trucks from the bone yard to the subject area and was responsible for overseeing the job of 

preparing and loading them onto the LowBoy tractor-trailers. Tr. 136-41, 190-95, 202-04. 

Moreover, Calmat does not explain how the sale transferred jurisdiction over the work performed 

on the haul trucks to OSHA, when the haul trucks remained unrelated to Calmat's OSHAregulated operations. 

In summary, considering both the locational and functional aspects of this case, the site 

where the haul trucks were parked was not clearly part of the batch plant that was excluded from 

MSHA's jurisdiction by the Interagency Agreement, and the haul trucks themselves were clearly 

related to mining operations and within MSHA's jurisdiction. Because the alleged violations 

involve an independent contractor performing work on mining equipment under the direction of a 

mine employee in a dual-use area, and in light of Congress' clear intention that jurisdictional 

doubts be resolved in favor of coverage by the Mine Act, we believe the alleged violations 

properly fall under MSHA's jurisdiction. Accordingly, we conclude that substantial evidence 

supports the judge's conclusion that the Secretary correctly applied the Interagency Agreement in 

exercising MSHA' s jurisdiction in this case. 

B. Whether Calmat Had Notice of MSHA's Jurisdiction 

Courts have found adequate notice where "a regulated party acting in good faith would be 

able to identify, with 'ascertainable certainty,' the standards with which the agency expects the 

parties to conform" by "reviewing the regulations and other public statements issued by the 

agency." General Elec. Co. v. EPA, 53 F.3d 1324, 1329 (D.C. Cir. 1995) (citing Diamond 

Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976)). In this case, we conclude that 

adequate notice was provided Calmat by the language and legislative history of the Mine Act as 

supplemented by the Interagency Agreement, which carves out of MSHA's jurisdiction concrete 

batch plant operations. Where, as here, neither the geographic site of the alleged violations nor 

the haul trucks involved in the alleged violations were exclusively related to the concrete batch 

plant, it follows that Calmat should have known the site and haul trucks would be subject to 

MSHA's jurisdiction. 

27 FMSHRC 624 
ill. 

Conclusion 

For the foregoing reasons, we affirm the judge's decision. 

Mic 

27 FMSHRC 625 
Chairman Duffy, concurring: 

I join with my colleagues in affirming the decision below; the substantial evidence rule 

compels that result. This case raises important questions regarding the effectiveness and 

predictability of enforcement under the Mine Act, however, that warrant a separate opinion. 

In my view, the <;rrea where the violation occurred, referred to as area "H" in the exhibits, 

is more logically associat~d with that part of the property designated as being under OSHA's 

jurisdiction. By location, it is certainly more proximate to the OSHA side of the property than it 

is to the MSHA side of the property. It is directly adjacent to a material stockpile that feeds the 

concrete batch plant, and, according to the In.teragency Agreement between MSHA and OSHA, 

OSHA's jurisdiction over concrete batch :plants "commences after arrival of sand and gravel or 

aggregate at the plant stockpile." Interagency Agreement at Appendix A, 44 Fed. Reg. at 22,830. 

In addition, area "H" is located near the ready-mix truck parking lot and slump racks where 

ready-mix truck drivers clean their trucks and add water to loads. Jt. Stip. 19; Tr. 157-88. 

Nevertheless, Calmat's principal witness testified that area "H" is not part of the concrete 

batch plant. Tr. 177-79. Conceding that the area in question is not part of the concrete batch 

plant constitutes a fatal admission against interest that supports the judge's conclusion that the 

area in question was subject to MSHA's jurisdiction, if only by default. That may be sufficient 

for the resolution of this case, but it offers little by way of guidance with respect to other 

properties that may be subject to the dual jurisdiction of OSHA and MSHA. 

Paragraph B.2. of the Interagency Agreement restates the Secretary's statutory authority 

under 30 U.S.C. § 802(d) to delegate to one agency or the other the authority for all workplace 

safety and health enforcement at dual jurisdiction sites in the interest of administrative 

convenience. That was the circumstance in Donovan v. Carolina Stalite Co., 734 F.2d 1547 

(D.C. Cir. 1984), where all safety and health enforcement authority had been delegated to MSHA 

prior to commencement of the enforcement action giving rise to the litigation. Had the Secretary 

exercised her discretion here as she did in Carolina Stalite, particularly in light of the lack of 

clear lines of demarcation between the mining and mineral processing functions at the Calmat 

property (e.g., the shared use of the maintenance shop), there would have been no jurisdictional 

question to decide in this case. 

The Secretary chose not to take that course of action, insisting that the area in question is 

inarguably within the regulatory purview of MSHA. That professed cert.ainty is belied by the 

MSHA inspector's testimony that on his initial visits to the mine, he had to be directed by the 

operator's representative to those areas considered.to be MSHA-regulated areas. Tr. 46, 64. 

Moreover, the inspector testified that prior to his observation of the violation, he had not 

intended to inspect the area in question as part of his regular inspection. Tr. 88. This was so 

despite the Act's command that mines be inspected in their entirety. 30 U.S.C. § 813(a). In 

27 FMSHRC 626 
short, had the inspector not seen the violative condition occurring within area "H," MSHA's 

jurisdiction over the area would not have been invoked. 1 · 

In sum, if not for Calmat' s fatal admission, I would hold that the area in question, by 

geographical location, was more logically aligned with the concrete batch plant and more 

appropriately within OSHA's jurisdiction. Granting that to be the case, the violative conduct 

would not have gone unsanctioned. Paragraph C.3. of the Interagency Agreement provides that 

when MSHA becomes aware of unsafe or unhealthful conditions in an area for which OSHA has 

enforcement authority, MSHA shall forward that information to OSHA, and under Paragraph 

C.4., OSHA shall notify.MSHA of the ultimate disposition of the matter. 44 Fed. Reg. at 22,828. 

The inspector, therefore, after having been assured that the contractor's employee was no longer 

in danger, could have referred the matter to OSHA.2 

This case illustrates the need to establish definitive jurisdictional authority for workplace 

safety and health at dual use properties by assigning exclusive responsibility to either MSHA or 

DSHA, or by clearly delineating beforehand those areas subject to enforcement by the respective 

agencies. In any event, the allocation of enforcement authority should not be left to the ad hoc 

approach adopted here. 

1 My colleagues conclude that MSHA's jurisdiction is supported by the fact that the 

contractor's employee was standing on equipment associated with mineral extraction, not 

concrete batch plant processing. Slip op. at 7-8. I do not believe that is dispositive. The 

contractor's employee could have been standing on a stack of giant widgets, and the hazard 

would have been the same. Moreover, section 3(h) of the Mine Act refers to mining equipment 

"used in, or to be used in ... the work of extracting ... minerals from their natural deposits .... " 

The equipment here had been junked and sold, and was no longer used in the extraction process. 

26 FMSHRC at 410-11. 

2 Notwithstanding his contention that the conduct he observed constituted an imminent 

danger under the Act, the inspector paused to take a photograph of the violative scene. Tr. 

101-02. It would seem to me that a shouted "Get the hell down from there!" might have been a 

more appropriate and practical response. In any event, by the time the inspector arrived at the 

Low Boy, the contractor's employee had already returned safely to the ground. Tr. 87-88. 

27 FMSHRC 627 
Distribution 

Jack Powasnik, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247· 

Scott H. Dunham, Esq: 

Rochelle R. Dunham, Esq. 

O'Melveny & Myers, LLP 

400 South Hope Street 

Los Angeles, CA 90071-2899 

Administrative Law Judge Gary Melick 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

27 FMSHRC 628 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DANIEL B. LOWE, 

Complainant 

V. 

SOUTHWEST DMSION, 

AGGREGATE INDUSTRIES, 

Respondent 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

ROBERT M. FRIEND, 

Respondents 

DENVER, CO 80204-3582 

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

September 8, 2005 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2005-246-DM 

WE MD 2005-08 

Mine I.D. 26-01845 

Sloan Quarry #1001 

DECISION GRANTING MOTIONS FOR SUMMARY DECISION 

ORDER OF DISMISSAL 

Before: Judge Manning 

This case is before me on a complaint of discrimination brought by Daniel B. Lowe 

against Southwest Division, Aggregate Industries ("Aggregate Industries") under section 

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

Act"). In his complaint, Mr. Lowe contends that his employment with Aggregate Industries was 

terminated after Robert M. Friend, MSHA' s Administrator for Metal/Nonmetal Safety and 

Health, complained to the president of Aggregate Industries about harassing calls Lowe was 

making to MSHA headquarters. Lowe contends that he was terminated because of his protected 

activities as a direct result of Robert Friend's interference, intimidation, and harassment. 

Although it appeared from the original complaint Lowe filed with MSHA that he wanted 

to include Friend in his section 105(c)(3) complaint, he only served Aggregate Industries with his 

complaint of discrimination in this case. At the time Lowe initiated this action, he was not 

represented by counsel. I permitted Lowe to serve the Secretary and Mr. Friend with his 

complaint of discrimination out of time subject to any objections that they might raise. 

In response to Lowe's complaint, the Secretary of Labor and Robert Friend filed an 

answer, a motion for summary decision, and a motion to dismiss. Aggregate Industries filed a 

27 FMSHRC 629 
response to this motion and joined in that part of the motion that seeks dismissal of the complaint 

on the basis that Lowe did not engage in protected activity. Lowe filed an opposition to the 

motion for summary decision and motion to dismiss. For the reasons set forth below, the motion 

for summary decision is granted and this proceeding is dismissed against the Secretary, Mr. 

Friend, and Aggregate Industries. 

I. BACKGROUND 

Aggregate Industries operates the Sloan Quarry near Las Vegas, Nevada. On or about 

February 8, 2005, Mr. Lowe filed a discrimination complaint with the local office of the 

Department of Labor's Mine Safety and Health Administration ("MSHA"). ·On March 17, 2005, 

the Secretary determined that the facts disclosed during her investigation into Lowe's 

discrimination complaint do not constitute a violation of section 105(c) of the Mine Act. 

On or about April 7, 2005, Lowe filed this proceeding on his own behalf under section 

105(c)(3) of the Mine Act. The allegations contained in the complaint are set forth below along 

with other undisputed facts. 

Mr. Lowe started working for Aggregate Industries in June 2004 as the company's 

regional safety manager. He states that he was responsible for investigating accidents, 

compliance with MSHA standards and regulations, and conducting safety training. He 

supervised three employees. Lowe also provided safety consultation and training services for 

Technos Corporation ("Technos"), a company that is not owned or otherwise affiliated with 

Aggregate Industries. Technos is a speciality contractor that provides fan services at mines. Its 

MSHA contractor number is LAH. Lowe provided these services for Technos as a contractor on 

his own time. 

On September 22, 2004, MSHA Inspector Norman Zeeman issued Citation No. 6255580 

to Technos at the 1604 Quarry and Plant located near San Antonio, Texas. This facility is owned 

and operated by Alamo Cement Company. The citation alleged that mobile equipment at the 

quarry had run over electrical power conductors (welding leads) in violation of 30 C.F.R. § 

56.12005. On September 27, 2004, Lowe sent a letter to Edward Lopez, MSHA's 

metal/nonmetal district manager in Dallas, Texas, requesting a safety and health conference on 

Citation No. 6255580. The letter also stated that it was to serve as a Freedom of Information Act 

("FOIA") request to obtain a copy of all of Inspector Zeeman' s notes, photographs, and other 

documents pertaining to the citation. The letter was written on the stationery of Technos and was 

signed by Mr. Lowe as "Corporate Safety Manager, Technos Corporation." (Ex. 8 to Secretary's 

Motion). The letter stated that he was the "company representative handling this action" and 

asked that all documents be sent to his attention. The return address was for the offices of 

Technos in Schertz, Texas. 

By letter dated October 21, 2004, Mr. Lopez responded to the FOIA request by stating 

that MSHA would not be providing any documents to Technos "under FOIA exception 7(A), 

27 FMSHRC 630 
which protects from disclosure records or information compiled for law enforcement purposes 

whose disclosure could reasonably be expected to interfere with enforcement proceedings." (Ex. 

9 to Secretary's Motion). 

In his discrimination complaint, Lowe contends that MSHA violated FOIA in that fyISHA 

"did not properly provide the requested information or proper documentation within 20 working 

days of the FOIA request." (Lowe Complaint of Discrimination). He also contends that MSHA 

violated section 103(h) .of the Mine Act. Lowe called Lopez on the telephone on October 26, 

2004, following receipt of this letter. Lowe alleges that Lopez was "unprofessional" and 

"verbally abusive" during this call. Lowe received a fax from Lopez following this call. (Ex. 10 

to Secretary's Motion). Lowe alleges that the fax "attempted to cover up [Lopez's] error related 

to providing the requested information under FOIA and the Act." (Lowe Complaint of 

Discrimination). Both of the letters from Lopez explained the appeal process under FOIA. 

Lowe states that as a result of abusive and unprofessional behavior of Lopez, he called 

John Correll, Deputy Assistant Secretary of Labor for Mine Safety and Health, to complain about 

Lopez. Lowe also faxed a letter to Correll on Technos stationery about his concerns. (Ex. 11 to 

Secretary's Motion). He stated his belief that MSHA was violating FOIA by not providing him 

with the requested information. Lowe also stated his belief that Lopez "intentionally" started a 

"confrontation" with him during the phone call. Id. Lowe further stated that Lopez "refused to 

take responsibility for his actions which caused a violation of federal law" and that he "should be 

removed from a position of responsibility as the South Central Director of MSHA as he is 

incompetent." Id. 

On October 26, 2004, Lowe also faxed a FOIA request to David D. Lauriski, the 

Assistant Secretary of Labor for Mine Safety and Health, asking for all documents and 

information concerning the Secretary's decision to "automatically deny the release of documents 

and records when requested by mine operators and contractors working on mine property as it 

relates to information related to inspection of mines and in particular MSHA field notes taken 

during inspection of mines." (Ex. 12 to Secretary's Motion). 

On November 19, 2004, Mr. Correll sent Lowe a letter stating that MSHA's interpretation 

of FOIA exemption 7(A) is "consistent with other Departmental FOIA policies and practices." 

(Ex. 14 to Secretary's Motion). The Jetter "encouraged" Lowe to appeal the denial. Correll also 

stated that his review "revealed no credible evidence of unprofessional conduct by Mr. Lopez in 

handling this [FOIA] matter." Id. In his discrimination complaint, Lowe states that Correll's 

letter is "evidence of John Correll' s poor investigation of my complaint related to Edward 

Lopez's actions of October 23, 2004." 

On December 1, 2004, Mr. Lowe sent another letter to Correll. In the letter, he asserted 

that Lopez had been "less than honest" with Correll regarding the "time line" of his FOIA request 

of September 27, 2004. Lowe states that his FOIA request was received by the MSHA Dallas 

District Office via facsimile transmission on September 27. Lowe also states that "[w]e received 

27 FMSHRC 631 
the FOIA denial response in our office on October 26 ... via facsimile transmission .... " (Ex. 

15 to Secretary's Motion). Lowe states in his letter to Correll that "the duration of the response 

from MSHA [to the FOIA request] was in fact 22 days which we all know to be unlawful under 

FOIA." Lowe's letter further states that it is "his belief that Mr. Lopez has not been honest or 

professional in the lawful handing of our FOIA request and in fact has been deceitful and 

untruthful to you as well during your inquiry to this matter." Id. Finally, Lowe asked Correll to 

call him "to advise me as to what actions MSHA is prepared to take in this matter regarding this 

unlawful act." Id. The letter concludes by stating that if Correll does nothing in response to his 

letter, he is "prepared to take this matter to the Office of the Inspector General." Id. 1 

In his discrimination complaint, Lowe states that on or soon after December 1, 2004, he 

tried to call Correll again but, because Correll was out of the office, he talked to Robert Friend. 

Lowe alleges that "Robert Friend was very abusive to me during the conversation and was 

extremely irate that I was making a complaint against Edward Lopez and that I had sent my ... 

complaint letter to Elaine Chao, Secretary of Labor." (Discrimination Complaint). 

On December 3, 2004, Robert Friend faxed Lowe's letters of October 26, 2004, and 

December 1, 2004, to James Addams, President of Aggregate Industries. Friend also talked to 

Addams about Lowe on the phone that day. Lowe believes that action by Friend was "nothing 

more than intimidation tactics, pure harassment, and interlerence at the hand of Robert Friend in 

an effort to do me personal harm." (Discrimination Complaint). On December 6, 2004, Addams 

discussed the situation with Lowe. Addams asked Lowe to let him review any letters that he 

sends to MSHA on behalf of Technos before they are mailed to help Lowe get his "point(s) 

across to MSHA in a more professional manner." Id. Lowe thanked Addams for his help. 

Lowe stated that, "[d]ue to Robert Friend's willful personal harassment and interlerence 

of my actions that I was taking in accordance with my statutory rights as a miner, I began the 

process of making a complaint to ... the Mine Safety and Health Administration and in 

particular either John Correll or David Dye." (Discrimination Complaint). At this point, Lowe 

called MSHA's headquarters in Arlington, Virginia, several times in an attempt to talk to either 

Correll or Dye. Lowe states that on December 8, 2004, Friend called him "and was extremely 

irate and stated that he was going to have me fired from my employment with Aggregate 

Industries if I did not drop my complaint." Id. Lowe states that he told Friend that he was going 

to file a complaint with the Inspector General to which Friend replied, "bring it on." Id. 

1 Marvin W. Nichols, Jr., the Director of MSHA's Office of Standards, Regulations and 

Variances, also sent Lowe a letter dated November 19, 2004, in response Lowe's FOIA request of 

October 26 directed to Mr. Lauriski. The letter listed several documents that fit within the FOIA 

request but stated that these documents have been "redacted from public disclosure under Exemption 

2 which allows for protection of internal administrative markings and practices." (Ex. 13 to 

Secretary's Motion). 

27 FMSHRC 632 
Lowe states that after that call with Friend on December 8, Addams asked Lowe to stop 

calling MSHA. Lowe states that he responded by telling Addams that he had the right to call 

MSHA because Robert Friend was harassing and intimidating him. Id. Addams told Lowe that 

Friend had called him and complained about Lowe's calls to MSHA headquarters. 

Following these events, Lowe began preparing complaints to be filed with the Inspector 

General and the Federal Bureau of Investigation ("FBr'). Lowe states that he decided to try to 

discuss these issues wi_th David Dye before he filed these complaints. To that end, on January 

18, 2005, he sent an e-mail to Dye asking Dye to call him. The e-mail states, in part, that he has 

"serious complaints against several top members of your agency" that he would like to discuss. 

Id. Lowe further advised Dye in the e-mail that if he did not hear from Dye within 24 hours, he 

intended to meet with the FBI to file a civil rights complaint "as I have been the victim of your 

senior staff members under the color of law." (Ex. 17 to Secretary's Motion). 

On January 19, 2005, Friend or another MSHA official forwarded Lowe's January 18th email to Addams. Lowe was terminated from his employment at Aggregate Industries on January 

20, 2005. Lowe stated that Addams told him that "he had to terminate my employment with 

Aggregate Industl'ies because I had made a complaint against MSHA and that MSHA was the 

federal agency that governs most of Aggregate Industries' business and that he, as President of 

the Southwest Region, was afraid of MSHA retaliating against Aggregate Industries businesses." 

(Ex. A <][17 to Lowe's Opposition). 

The Secretary proposed a penalty of $60.00 for the alleged violation set forth in Citation 

No. 6255580 and Technos contested the citation and penalty under the Commission's procedural 

rules at 29 C.F.R. § 2700.26. The Secretary filed a petition for assessment of penalty on January 

26, 2005, but Technos failed to file an answer as required by 29 C.F.R. § 2700.29. On April 14, 

2005, the Commission's chief administrative law judge issued an order requiring Technos to 

show cause why it did not file an answer. When Technos failed to respond to the show cause 

order, the chief judge entered an order of default dated May 23, 2005, Docket No. CENT 2005-

92-M. (Ex. 5 to Secretary's Motion). 

II. BRIEF SUMMARY OF THE PARTIES' ARGUMENTS 

In her motion, the Secretary argues that Lowe failed to allege a prima faci.e case of 

discrimination in that his alleged activities were not protected activities under the Mine Act. All 

of the activities that Lowe contends were protected were taken as a representative of a mine 

operator, Technos Corporation, rather than on behalf of miners. She contends that advocacy on 

behalf of a mine operator is not protected under section 105(c) of the Mine Act. His activities 

had nothing to do with involving miners in the improvement of safety at the mine. 

The Secretary also contends that Lowe's activities protesting the Department of Labor's 

interpretation of FOIA are not protected under section 105(c). Even if Lowe's original protests 

were protected, "when his correspondence became attenuated from Mine Act matters and turned 

27 FMSHRC 633 
into complaints of missed deadlines under FOIA" they were no longer protected under the Mine 

Act. (Secretary's Motion 21). 

Finally, the Secretary argues that the Secretary and Friend must be dismissed from this 

case because neither the Secretary nor Friend may be sued under section 105(c) for actions taken 

during the course of his employment. "MSHA officials acting under the color of their authority 

are not amenable to suit un,der section 105(c) of the Mine Act." Id. at 25 quoting Meredith v. 

FMSHRC, 177 F.3d 1042, 1056 (D.C. Cir. 1999). 

Aggregate Industries, through counsel, concurs with that part of the Secretary's motion 

for summary decision that seeks dismissal on the basis that Lowe did not engage in activity 

protected by section 105( c) of the Mine Act. It points to Lowe's representation that, at all 

pertinent times, he was acting as a representative of Technos. Aggregate Industries also points to 

Lowe's representation in his complaint to the Department of Labor's Inspector General, dated 

January 21, 2005, that he filed the FOIA request while "conducting consultation services for 

Technos." (P. 1, Attachment C to Aggregate Industries Reply). Lowe also acknowledged that 

the "services" he provided for Technos had "absolutely nothing to do with Aggregate Industries." 

Id. at p. 3. As a consequence, his alleged protected activities did not arise within the scope of his 

employment as safety manager with Aggregate Industries. 

Lowe maintains that the motions should be denied. Lowe states that, because he was a 

miner, he is entitled to the protections of section 105(c). He contends that he was also a 

representative of the miners working for Technos. Lowe states that he sought the information 

from the Secretary not only on behalf of Technos but also on behalf of miners who were subject 

to being blamed for the alleged violation. Lowe argues that he is entitled to pursue his miner's 

rights under the Mine Act without being discriminated against by the Secretary and Aggregate 

Industries. Lowe believes that the communications sent by him to MSHA officials are protected 

activities and were not inappropriate. 

Because the record in this case "contains no declarations or evidence ... from Robert 

Friend or any other MSHA representative explaining what ... gave them the right to contact Mr. 

Addams and threaten Aggregate Industries if they did not silence Mr. Lowe's complaints," there 

are "huge questions of material fact that make summary decision impossible-in this case." (Lowe 

Response 13). He argues that he should be allowed to complete discovery before.the Secretary's 

motion should be considered. Finally, Lowe argues that Friend was not acting under color of law 

when he made threats to get him terminated from his job with Aggregate Industries. 

ID. DISCUSSION 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners "to 

play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

27 FMSHRC 634 
possible discrimination which they might suffer as a result of their participation." S. Rep. No. 

181, 95th Cong., !51 Sess. 35 (1977), reprinted in Senate Subcom.rriittee on Labor, Committee on 

Human Resources, 95th Cong., 2"d Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977 at 623 (1978). 

A miner alleging discrimination under the Mine Act establishes a prima facie case of 

prohibited discrimination by presenting evidence sufficient to support a conclusion that he 

engaged in protected activity and suffered adverse action motivated in any part by that activity. 

Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 

(October 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor on 

behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981); Driessen v. 

Nevada Gold.fields, Inc., 20 FMSHRC 324, 328 (Apr. 1998). The mine operator may rebut the 

primafacie case by showing either that no protected activity occurred or that the adverse action 

was in no part motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine 

operator cannot rebut the primafacie case·in this manner, it nevertheless may defend 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. Pasula at 2800; Robinette, 3 FMSHRC at 817-18; see 

also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987). 

The Commission's Procedural Rule at 29 C.F.R. § 2700.67(b) sets forth the 

grounds for granting a motion for summary decision, as follows: 

A motion for summary decision shall be granted only if the entire 

record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits, shows: 

(I) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a 

matter of Jaw. 

I find that Lowe did not raise genuine issues of material fact in his response to the 

Secretary's and Aggregate Industries' motions and that they are entitled to summary decision as a 

matter of law. The facts clearly demonstrate that Lowe did not engage in protected activities 

prior to his termination from employment at Aggregate Industries. 

'.The activities that Lowe relies on center around his request for information from MSHA 

concerning Citation No. 6255580 issued to Technos at the Alamo Cement facility in Texas. He 

made this request through FOIA on September 27, 2004. In his opposition to the motions for 

summary decision, Lowe states that he filed the FOIA request as a step to contesting the citation. 

(Lowe Opposition 3). The information sought by Lowe through the FOIA request would have 

been available to him through discovery if he had filed a pre-penalty contest of the citation with 

the Commission or if he had filed discovery after the Secretary proposed a penalty. See 29 

C.F.R. §§ 2700.20 and 2700.56 through 2700.58. Mine operators do not generally use FOIA to 

get information about citations issued to them by MSHA. Lowe states that he did not know that 

27 FMSHRC 635 
· Technos was held in default with respect to Citation No. 6255580 and states that he has asked the 

Commission to reopen the case. (Ex. A <J[ 21 to Lowe's Opposition). 

I hold that Lowe's communications with MSHA concerning the FOIA request were not 

protected activities under section 105(c) of the Mine Act. I reach this conclusion based ory a 

number of factors discussed below. 

Miners have th~ "right to complain to the operator and to the Secretary of alleged dangers 

or violations." Pasula at 2790. ''The successful enforcement of the 1977 Mine Act is ... 

dependent on the voluntary efforts of miners to notify either MSHA officials or the operator of 

conditions or practices that require correction." Id. "[I]f miners are to be encouraged to be 

active in matters of safety and health, they must be protected against any possible discrimination 

which they might suffer as a result of their participation [in the enforcement of the Act]." 

Donovan on behalf of Anderson v. Stafford Construction, 732 F.2d 954, 960 (D.C. Cir. 1984) 

· (brackets in original) (citation omitted). A miner's complaints or actions are protected even if 

they go beyond what is required under the Secretary's health and safety standards "if they are 

based on a miner's 'good faith, reasonable belief that such precautions are needed" so long as 

"the precautions themselves are reasonable." Sec'y on behalf ofZecco v. Consolidation Coal 

Co., 21FMSHRC985, 993 (Sept. 1999). 

In this case, Lowe was not complaining about safety or health conditions at Technos' 

operations at the Alamo Cement Company. Instead, he believed that MSHA should not have 

issued the subject citation because he did not consider welding leads to be power conductors 

subject to section 56.12005. (Ex. 7 to Secretary's Motion). He wanted a copy of Inspector 

Zeeman's notes to aid him in a conference with the MSHA Dallas District Office in his attempt 

to get the citation vacated or modified. In taking these steps, Lowe was acting as an agent of 

Technos, not as a miner or a representative of miners. His actions were not designed to correct 

an unsafe condition or improve the safety of miners. He was seeking information from MSHA to 

help him negotiate a settlement for Technos with respect to Citation No. 6255580. 

In his response to the motions for summary decision, Lowe states that he was seeking the 

information to "rebut" the citation not only on behalf of Technos but on behalf of two miners 

"who were subject to being blamed for the alleged violation to assist them in clearing their 

records of the alleged incident." (Lowe Opposition 10). He states that he was taking these 

actions as a miners' representative. Id. at 11. He filed a document dated August 16, 2005, 

signed by 13 miners employed by Technos designating him as their representative for mine safety 

and health purposes, which states that he has been their representative since August 2000. (Ex. C 

to Lowe's Opposition).2 Lowe may well be a "miners' representative" when seeking to_ improve 

the health and safety of miners, but he was not acting as a miners' representative when he sought 

information to contest the citation. 

2 NeitherTechnos nor Lowe filed this miners' representative designation with MSHA under 

30 C.F.R. § 40.2. . 

27 FMSHRC 636 
As events progressed in the autumn of 2004, the discussions and correspondence between 

Lowe and MSHA turned from the initial document request to Lowe's concern that Lopez was 

disrespectful, abusive, unprofessional, and incompetent. Much of Lowe's anger at Lopez arose 

because MSHA provided its response to Lowe's FOIA request in 22 days rather than 20 days. 

Lowe also believed that MSHA was misusing exemption 7(A) of FOIA. These disputes between 

MSHA and Lowe have nothing to do with improving the safety of miners working for Technos. 

Lowe was not complaining about alleged violations or hazardous conditions. These discussions 

are not protected under section 105(c) of the Mine Act.3 

I have relied on the facts presented by Lowe, including his characterization of his phone 

calls with MSHA officials, and the undisputed correspondence in reaching my conclusion that 

summary decision is warranted in this case. Further discovery would not reveal facts that would 

mitigate against a finding that Respondents are entitled to summary decision. 

I believe that it is important to note that conflicts described above could have easily been 

avoided. The conduct of MSHA's management was far from exemplary. MSHA denied Lowe's 

FOIA request, yet it knew that he was acting as a representative of Technos. I find it hard to 

believe that Messrs. Lopez, Correl, and Friend were not aware that Lowe would be entitled to the 

inspector's notes and photographs for Citation No. 6255580 if he contested the citation before 

the Commission. None of these MSHA officials suggested to Lowe that he contest the citation 

once the Secretary proposed a penalty and that he file discovery with the Office of the Solicitor 

asl<i.ng for the inspector's notes. If such a suggestion had been made, Lowe would have had 

access to the information he wanted and MSHA would not have been faced with a confrontation 

concerning the Secretary's recent policy of denying FOIA requests for basic information from 

MSHA. See "Records show Sharp Increase in MSHA FOIA Denials," Mine Safety and Health 

News, Vol. 12, No. 11, p. 222, May 31, 2005. It should also be noted that, if Lowe had contested 

the citation within 30 days of its issuance, he could have obtained the inspector's notes through 

the Commission's discovery rules before a penalty was proposed by the Secretary. 

I also note that Lowe presented documentary evidence to support his contention that 

Friend contacted Addams forthe purpose of putting pressure on Lowe to stop calling MSHA 

officials and to stop complaining about Lopez's response to his FIOA request. (Ex. D to Lowe's 

3 It also bears noting that none of the activities that Lowe contends were protected under the 

Mine Act were taken on behalf of miners working for Aggregate Industries or miners working at 

facilities operated by Aggregate Industries. In a letter dated March 7, 2005, to the MSHA special 

investigator who was investigating Lowe's discrimination complaint, Addams stated that he was not 

aware that Lowe was representing Technos in safety matters before MSHA until Friend called him 

on December 3, 2004. (Ex. E to Lowe's Opposition). He stated he terminated Lowe for "conflict 

of interest, failing to perform his job satisfactorily, failing to comply with clearly communicated 

policy, insubordination, and misrepresentation." Id. at 3. Conflict between Lowe's evidence and 

Addams' letter on this issue goes to the motivation for his termination by Aggregate Industries, 

which has no bearing on the issues presented by the motions for summary decision. · 

27 FMSHRC 637 
Opposition). For purposes of this decision I accepted Lowe's evidence and argument. I assume 

that the Department of Labor's Inspector General is looking into this matter pursuant to Lowe's 

formal complaint. Because I granted the Secretary's and Aggregate Industry's motions for 

summary decision, I did not consider the Secretary's motion to dismiss, which was based on 

Meredith v. FMSHRC. 

IV. ORDER 

For the reasons set forth above, the motions for summary decision filed by the Secretary 

of Labor and Aggregate Industries are GRANTED and the discrimination complaint filed by 

Daniel B. Lowe against Aggregate Industries, the Secretary of Labor, and Robert Friend under 

section 105(c)(3) of the Mine Act is DISMISSED.4 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

James P. Kemp, Esq., Kemp & Kemp, 624 N. Rainbow Blvd., Las Vegas, NV 89107 (Certified 

Mail) 

James J. Gonzales, Esq., Holland & Hart, 555 Seventeenth Street, Ste 3200, Denver, CO 80202-

3921 (Certified Mail) 

Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor, Arlington, VA 22209-2296 (Certified Mail) 

RWM 

4 Because this case is being dismissed, Aggregate Industries' motion to compel is moot. 

27 FMSHRC 638 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, D.C. 20001 

September 28, 2005 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HUBBLE MINING COMPANY, LLC, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. VA 2005-17 

A.C. No. 44-07048-48293 

Mine No. 4 

DECISION APPROVING SETTLEMENT 

Before: Judge Barbour 

This case concerns a proposal for assessment of civil penalty filed pursuant to Section 

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

a civil penalty assessment for one alleged violation of a mandatory safety standard found in Part 

75, Title 30, Code of Federal Regulations. 

The parties have settled the matter and the Secretary has filed a motion pursuant to 

Commission Rule 31, 29 C.F.R. § 2700.31 , seeking approval of the proposed settlement. The 

proposed settlement is as follows: 

Citation/ 

Order No. 

7342837 11/22/04 

30 C.F.R. Assessment Settlement 

75.1725(c) $2,500.00 $100.00 

In support of the proposed settlement, the parties have submitted information pertaining 

to the six statutory civil penalty criteria found in Section l lO(i) of the Act, including information 

regarding Respondent's ability to pay and history of previous violations. 

In particular, with regard to Citation No. 7342837, which was issued because a conveyor 

belt was not locked out while repairs were underway, the Secretary states that following a 

conference, the inspector's original finding that the violation was a significant and substantial 

contribution to a mine safety hazard was deleted and the inspector's gravity finding was changed 

to indicate the violation was unlikely to result in an injury to miners. The Secretary believes the 

settlement amount reflects these changes. 

After review and consideration of the pleadings, arguments and submission in support of 

the settlement motion, I find the proposed settlement is reasonable and in the public interest. 

Pursuant to 29 C.F.R. § 2700.31, the motion is GRANTED, and the settlement is APPROVED. 

27 FMSHRC 639 
ORDER 

Respondent is ORDERED to pay a civil penalty of $100.00 in satisfaction of the 

violation in question. Payment is to be made to MSHA within 30 days of the date of this 

proceeding. Upon receipt of full payment, this proceeding is DISMISSED. 

Distribution: 

_/JN; fl f. &, 1-.......__ 

David F. Barbour 

Administrative Law Judge 

(202.) 434-9980 

Robert S. Wilson, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 

22"d Floor West, Arlington, VA 22209-2296 

Mickey T. Webster, Esq., Wyatt, Tarrant & Combs, UP, 250 W. Main Street, Suite 1600, 

Lexington, KY 40507 

27 FMSHRC 640 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

303-844-3577/F AX 303-844-5268 

September 30, 2005 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

AD.MINISTRATION (MSHA), 

Petitioner 

CIVIl.. PENALTY PROCEEDING 

Docket No. CENT 2005-54-M 

A.C. No. 13-00691-42086 

v. 

IA Portable #1 

lilGMAN SAND & GRAVEL, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Thomas J. Pavlat, Conference & Litigation Representative, Mine 

Safety and Health Administration, Duluth, Minnesota, for Petitioner; 

Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr, Sioux City, 

Iowa, for Respondent. 

Judge Manning 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Higman 

Sand and Gravel, Inc. ("Higman Gravel"), pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). A hearing was 

held in Sioux City, Iowa. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Higman Gravel operates the IA Portable #1 (the "plant") in Plymouth County, Iowa. It is 

a small gravel-processing facility that includes a pit as well as a plant where the excavated rock is 

crushed and screened. MSHA Inspector Christopher Willett inspected the plant on September 

14, 2004, and he issued the citations at issue in this case. 

A. Citation No. 6153982 

Inspector Willett issued Citation No. 6153982 under section 104(a) of the Mine Act 

alleging a violation of 30 C.F. R. § 56.12032. The body of the citation states: 

The cover plate for the control box for the rock screw was removed 

and not replaced exposing energized electrical conductors. This is 

located on the east wall of the wash plant electrical shed 5.5 feet 

27 FMSHRC 641 
above the floor. The rock screw is started and stopped from this 

area daily. This exposes a person to the hazard of contacting 

energized components which could result in electrocution. 

The inspector determined that it was reasonably likely that someone would be injured as a result 

of this condition and that, if an injury were to occur, it would be fatal. He determined that the 

violation was of a significant and substantial nature ("S&S") and that Higman Gravel's 

negligence was moderate. The cited safety standard provides that "[i]nspection and cover plates 

on electrical equipment and junction boxes shall be kept in place at all times except during 

testing or repairs." The Secretary proposes a penalty of $286.00 for this citation. 

Inspector Willett testified that when he entered the electrical shed he noticed that the 

cover was not on the electrical control box for the rock screw. (Tr. 41; Ex. G-15). Cover plates 

must be in place except for testing or repair. The box was energized at the time of his inspection. 

(Tr. 42). The bottom of this electrical control·box was about 5Y2 feet above the floor on a wall 

with other similar boxes. He believed that a start/stop switch was located underneath the box. 

(Tr. 45). Terminals inside the box were exposed which carried electricity at 240 volts. Inspector 

Willett testified lhat there were no barricades or other impediments to entry into the building. A 

few miscellaneous hand tools and supplies were kept in the eight by twelve foot building. 

Inspector Willett determined that it was reasonably likely that someone would be injured 

by the cited condition because miners have to enter the building to start and stop the plant. (Tr. 

47-48). With the cover off the electrical box, a miner could accidently come in contact with the 

energized terminals or wires in the box. Because the violation presented a hazard that someone 

could be electrocuted, the inspector determined that the violation was S&S. (Tr. 48-49). He 

determined that the operator was moderately negligent because Justin Higman was not aware that 

the cover was off the box. 

Harold Higman, the owner of Higman Gravel, testified that the switches used by the plant 

operator to turn equipment on and off are located next to the door of th~ shed .. (Tr. 99-101 ). He 

stated that the control box cited by Inspector Willett is about six to seven feet away from these 

switches. (Tr. 102). It would not be necessary for the plant operator to walk near the control box 

to operate these switches. Higman testified that the only time that a miner would be near the 

control box is when the heaters must be reset. The heaters in this box switch the rock screw 

circuit off whenever the screw motor is pulling more current than its capacity. (Tr. 130-31). The 

heaters are designed to open the circuit to prevent the motor from overheating. To reset the 

heaters, the cover is removed from the control box by the plant operator and the reset buttons in 

the control box are pushed in. (Tr. 104). The control box is de-energized with a knife blade 

switch before these buttons are reset. (Tr. 110, 126, 129, 136). Higman testified that the hand 

tools and other supplies are on the opposite side of the electrical shed. (Tr. 109). He does not 

believe that it is reasonably likely that anyone would be injured by the condition cited by the 

inspector. (Tr. 111-12). 

27 FMSHRC 642 
Frank Rollins operates the plant for Higman Gravel. He testified that, on the day of 

Inspector Willett's inspection, the rock screen became overloaded with rock which caused the 

motor for the screw to overheat, causing its heaters to pop out. (Tr. 149). Rollins removed the 

accumulated rock from the screw and the screen. When he entered the electrical shack, he 

opened the knife blade switch to cut off power to the control box. (Tr. 156-57). Next, he reset 

the heaters and closed the knife blade switch. (Tr 150, 172, 174, 185). He turned the plant on 

with the switches located by the door of the shed. (Tr. 186). Rollins testified that he forgot to . 

put the cover back on the control box that morning after he reset the heaters. (Tr. 169). The shed 

has a wooden floor which is kept clean and free of tripping hazards. (Tr. 152). Rollins operates 

a payloader and he enters the electrical shed only twice a day, unless there is a breakdown. (Tr. 

193). 

I find that the Secretary did not establish that this violation was S&S. Higman Gravel 

admits that the cover was off the control box so it does not contest the fact of violation. A 

violation is classified as S&S "if based upon the facts surmunding the violation, there exists a 

reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a four-part test for 

analyzing S&S issues. Evaluation of the criteria is made assuming "continued normal mining 

operations." U.S. Steel Mining Co., 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 (April 1988). The Secretary must establish: (1) the 

underlying violation of the safety standard; (2) a discrete safety hazard, a measure of danger to 

safety, contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to 

y.till result in an injury; and (4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. The Secretary is not required to show that it is more probable than not 

that an injury will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 

1996). 

The Secretary did not prove that there was a reasonable likelihood that the hazard 

contributed to by the violation would result in an injury, assuming continued normal mining 

operations. The Secretary established the first, second, and fourth elements of the Mathies 

criteria. The IA portable is a small operation. The only individual working at the plant was Mr. 

Rollins. All other employees work in the pit. Rol1ins spends most of his time loading 

customers' trucks with product. He enters the electrical shack each morning to get supplies 

necessary to grease equipment before the start of the shift. He then enters the shack to tum on 

the plant. He stands at the door and turns on the equipment in sequential order while watching 

the equipment through the door. The switches he uses to perform this task are only a foot inside 

the door. He reverses the process to shut down equipment at the end of the shift. None of these 

tasks require him to be at the end of the shack where the cited control box is located. 

The only times that Rollins is near the cited control box is when there is a problem at the 

screen and rock screw that causes the heaters to pop out. To reset the heaters, Rollins enters the 

27 FMSHRC 643 
shack, walks up to the control box, and turns off the power using the knife-blade switch near the 

box. He removes the cover for the control box to reset the heaters. After he resets the heaters, he 

should replace the cover. On September 14, 2004, however, Rollins reestablished power with the 

knife-blade switch and then started the plant operating using the switches near the door to the 

shed, as described above, without replacing the cover to the control box. 

Rollins' exposure to the hazard was quite low. It was highly unlikely that he would come 

in contact with energized components within the control box. There were no tripping or 

stumbling hazards in the area. The bottom of the box was over five feet above the floor. No 

other miners would have entered the shack, assuming continued nonnal mine operations. 

Although there was a slight hazard presented by the violation, it was not reasonably likely that 

anyone would be injured by the cited condition. 

B. Citation No. 6153983 

Inspector Willett issued Citation No. 6153983 under section 104(a) of the Mine Act 

alleging a violation of 30 C.F. R. § 56.14107(a). The body of the citation states: 

A guard was not provided for the drive pulley or counterweight for 

the rock screen. Material was built up under the drive and 

counterweight to where they are 6 feet above grade. This exposes 

a person to the hazard of contacting moving machine parts which 

could result in crushing or dismembering injuries. 

The inspector determined that it was unlikely that someone would be injured as a result of this 

condition but that, if an injury were to occur, it would be pennanently disabling. He detennined 

that the violation was not S&S and that Higman Gravel's negligence was moderate. The cited 

safety standard provides that "[m]oving machine parts shall be guarded to protect persons from 

contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, ... and similar moving 

parts that can cause injury." The Secretary proposes a penalty of $60.00 for this citation. 

Inspector Willett testified that the drive pulley was about eight feet above the ground, but 

that it was about six feet above material that was built up under the rock screen. (Tr. 26-27, 215; 

Ex. G-5). The inspector, who is about 6' 3" tall, did not measure the height of the pulley above 

the built-up material but he stood about three feet away and estimated that the pulley was at eye 

level. (Tr. 223). The inspector testified that the built up material was rock which had fallen from 

the screen and that the rock appeared to have been there for "quite some time because it was 

solid and stable." (Tr. 27-28). He testified that there were no barricades to prevent miners from 

walking through the area. Willett estimated that built-up material to be about six feet wide and 

two feet deep. (Tr. 216). The conditions around the counterweight for the pulley, whjch was on 

the opposite side of the rock screen, were the same. (Tr. 29-30; Ex. G-6). 

27 FMSHRC 644 
Inspector Willett detennined that it was unlikely that anyone would be injured by the 

cited conditions because miners do not normally travel through the area. (Tr. 30-31). He said 

that the rock screen is a "wet operation" and that, at the time he wrote the citation, water was 

running off the sides of the screen. (Tr. 62). He considered the operator's negligence to be 

moderate because Justin Higman, the company official who accompanied him on the inspection, 

was not aware that material had built up in the area. (Tr. 31). 

Harold Higman .testified that the area cited by Inspector Willett is not a walking or 

working surface. (Tr. 114-15). Miners cannot walk through the area because the hopper under 

the screen is in the way. He believes that a miner would have to get on his hands and knees to 

get through the area. In addition, Higman testified that anyone who traveled under the pulley or 

counterweight would get a shower from water running off the screen. (Tr. 115; Ex. G-5, G-6). 

He stated that employees do not walk in the area under the cited pulley and counterweight. (Tr. 

119). Spilled rock is usually cleaned up during the shift and "for sure" before the start of the 

following shift. (Tr. 134). A payloader is used to clean up the material. Higman testified that 

material does not usually build up to a depth of two feet before it is cleaned up. (Tr. 134). He 

also testified that such an accumulation can develop in a few hours if there is a problem at the 

screen. (Tr. 144). 

Frank Rollins testified that when the screen became overloaded with rock on September 

14, a lot of material fell to the ground. This material piled up to a depth of several feet. (Tr. 

151 ). Rollins testified that he could not reach._ the pulley or the counterweight without jumping 

while standing on the accumulations. (Tr. 159). He further testified that nobody ever walks 

under or near the counterweight or the pulley. He always cleans up accumulations with his 

payloader and he has never used a shovel to clean up the material. If he can, he will clean up any 

spills during the day but, if he is too busy loading trucks, he will clean up any spills first thing the 

following morning. (Tr. 168-69). Any spills in the area will be in a pile rather than flat. (Tr. 

197). Justin Higman testified that he could reach the pulley from the top of the material only 

with a great deal of effort. (Tr. 198). 

I find that the Secretary did not establish a violation of the safety standard. Subsection 

(b) of section 56.14107 provides that "[g]uards shall not be required where exposed moving 

machine parts are at least seven feet away from walking or working surfaces." I find that the 

condition cited by Inspector Willett fits within this exception. There is no dispute that the pulley 

and counterweight were more than seven feet above the ground. The parties dispute whether 

they were more than seven feet above the material that had built up under the rock screen. For 

purposes of this decision, I assume that the distance between the pulley and the counterweight to 

the top of the built-up material was less than seven feet. I find, however, that these locations 

were not walking or working surfaces. 

The top of the accumulations was not a walking or working surface for a number of 

reasons. First, the evidence establishes that miners would not have any reason to work or walk 

through the area. I credit the testimony of Higman Gravel's witnesses that miners would not 

27 FMSHRC 645 
want to stand or travel on the accumulations because water _rains down from the top of the screen 

on a fairly constant basis. Anyone in the area would get quite wet. The photographs show water 

running off both sides of the screen. (Ex. G-5, G-6). In addition, I credit the testimony of 

Higman Gravel's witnesses that a miner could not use that route to get from one area of the plant 

to another without getting on his hands and knees to crawl under equipment. Frank Rollins, the 

only employee who works around the plant, cleans up accumulations using his payloader. 

Rollins testified that he tries to clean up the accumulations at least once a shift. He credibly 

testified that he never uses a shovel to clean up material in the area and that he never enters the 

area while equipment is running for any other purpose. Thus, I conclude that the nearest possible 

working or walking surface was, at best, several feet back from the accumulations. A miner 

working or walking several feet back from the accumulations would be more than seven feet 

from the pulley and the counter weight. 

The Commission interprets this safety standard to "import the concept of reasonable 

possibility of contact and injury." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 

1984). In that case, the Commission held that this standard must be interpreted to consider 

whether there is a "reasonable possibility of contact and injury, including contact stemming from 

inadvertent stll'mbling or falling, momentary inattention, or ordinary human carelessness." Id. 

The Commission made clear that citations issued under this standard must be "resolved on a 

case-by-[ case] basis." Id. I find that the Secretary did not establish that there was a reasonable 

possibility of contact because, as stated above, the built-up area under the screen was not a 

walking or working surface and the nearest possible walking or working surface was more than 

seven feet away from the pulley and counterweight. There was no risk that anyone stumbling or 

falling would come into contact with the moving parts or that anyone would make contact due to 

inattention or careless behavior. Other Commission administrative law judges have vacated 

citations under similar circumstances. See Hamilton Pipeline, Inc., 24 FMSHRC 915, 922-23 

(Oct. 2002) (ALT); Chrisman Ready-Mix, Inc., 22 FMSHRC 1256, 1259-61 (Oct. 2000) (ALJ); 

Allied Custom Gypsum, Inc., 22 FMSHRC 654, 657-58 (May 2000) (ALJ); and Knack's Building 

Supplies, 20 FMSHRC 535, 540-41(May1998) (ALT) ("spillage [from a wash screen] did not 

convert what was not normally a walking or working area into one.") 

C. Citation No. 6153984 

Inspector Willett issued Citation No. 6153984 under section 104(a) of the Mine Act 

alleging a violation of 30 C.F. R. § 56.12004. The body of the citation states: 

The outer jacket of the power cord to the rock stacker was cut 

exposing inner conductors to damage. The cut was 3/4 of an inch 

long and located near the cord hanger, 5 feet high, at the tail pulley 

of the conveyor. This exposes a person to the hazard of contacting 

stray electrical current which could result in electrocution. 

27 FMSHRC 646 
The inspector determined that it was unlikely that someone would be injured as a result of this 

condition but that, if an injury were to occur, it could be fatal. He detemrined that the violation 

was not S&S and that Higman Gravel's negligence was moderate. The cited safety standard 

provides, in part, that "[e]lectrical conductors exposed to mechanical damage shall be protected." 

The Secretary proposes a penalty of $60.00 for this citation. 

Inspector Willett issued the citation because the power conductor (the "cord") was 

damaged. (Tr. 33; Ex. G-9). The damage appeared to be a half-inch long nick in the outer jacket 

of the cord. (Tr. 34 ). The inner conductors were not damaged. He believed that the power cord 

carried 240 volts. The inspector determined that it was unlikely that anyone would be injured as 

a result of the cited condition because there was nobody working in the area and no bare 

electrical conductors were exposed. (Tr. 35). He did not know whether the power cord was live 

at the time of the inspection, but the stacker was operating. (Tr. 73, 217). Inspector Willett 

believes that the cord provided power to the stacker. (Tr. 217-18). He considered the operator's 

negligence to be moderate because Justin Higman was not aware of the violation. 

Harold Higman testified that the power cord was not energized and it was oot connected 

to a power source. (Tr. 120). He stated that the cord had been out of service for years. (Tr. 121). 

Power to the rock stacker was provided from overhead power lines through a different electrical 

cord. Id. Rollins testified that the power cord was not energized and that the cord had not been 

used for at least 16 years. (Tr. 161). He also testified that power was supplied to the rock stacker 

from overhead power lines. Id. Justin Higman testified that he was not aware that the stacker 

did not receive its power from the cited cord at the time of the inspection. (Tr. 203). 

I find that the Secretary did not establish a violation. I credit the testimony of Higman 

Gravel's witnesses that overhead power lines provided electricity to the rock stacker. The power 

cord cited by the inspector was not energized and had not been used for years. Although the 

cited electrical cord was damaged, it had apparently been used when power was supplied to the 

rock stacker by a portable generator. I hold that, under the circumstances, the cited cord was not 

an electrical conductor for purposes of the safety standard. 

The Secretary questions the testimony of the operator's witnesses because Inspector 

Willett had not been advised of this alleged fact at the time of his inspection. Harold Higman 

usually accompanies MSHA inspectors during inspections of the plant, but he was not available 

at the time of Inspector Willett' s inspection. Justin Higman is not directly involved in the 

operation of the plant because he concentrates on sales, marketing, and office work. (Tr. 189). 

Justin Higman accompanied the inspector on September 14 and I credit his testimony that he was 

not aware that the cited cord was not used. 

The Secretary defines "conductor" as "a material, usually in the form of wire, cable, or 

bus bar, capable of carrying an electric current." 30 C.F.R. § 56.2. An argument can be made 

that, because the cited cord was "capable of carrying electric current," it was an electrical 

conductor which had to be protected against mechanical damage despite the fact that it was not 

27FMSHRC647 
being used. Ordinarily, a citation should not be vacated on the basis that a cited electrical cord 

was not being used at the time of the inspection. In this case; however, the cited cord had not 

been used for a significant length of time and there was no indication that it would be used in the 

future. Rollins testified that he had worked at the plant for 16 years and that he could not recall 

that the cord had ever been used. 

Because the cited electrical cord had not been used for a considerable length of time and 

it does not appear tha~ it would be used, I find that it no longer functioned as a conductor as that 

term is defined by MSHA. Thus, the conditions presented did not violate the safety standard. 

D. Citation No. 6153985 

Inspector Willett issued Citation No. 6153985 under section 104(a) of the Mine Act 

alleging a violation of 30 C.F. R. § 56.12004. The body of the citation states: 

The outer jacket to the feed bin conveyor at the Spec Plant was 

damaged exposing inner conductors to mechanical damage. The 

damaged area is exposing inner conductors for 1.5 inches. The 

cord is not energized, but inner conductors are faded from being 

exposed to the sunlight for a period of time. This exposes a person 

to the hazard of contacting stray electrical current which could 

result in electrocution. 

The inspector determined that it was unlikely that someone would be injured as a result of this 

condition but that, if an injury were to occur, it could be fatal. He determined that the violation 

was not S&S and that Higman Gravel's negligence was moderate. The Secretary proposes a 

penalty of $60.00 for this citation. 

Inspector Willett issued the citation because the outer jacket of the power cord to the feed 

bin was damaged. (Tr. 36-37; Ex. G-12). The damage appeared to be a tear about an inch and a 

half long in the outer jacket of the cord. (Tr. 37). The inner c~nductors were not damaged but 

they were faded, which indicated that the condition had not been recently created. Small 

particles of rock and sand were in the cord. (Tr. 38). The cord was hanging alongside the 

conveyor. Although the cord was not energized, it controlled the feed bin to the spec plant. A 

portable generator would have to be started to energize the cord. The inspector determined that it 

was unlikely that anyone would be injured as a result of the cited condition because the conveyor 

was not in operation. (Tr. 39). He considered the operator's negligence to be moderate because 

Justin Higman was not aware of the violation. 

Harold Higman testified that the cited power cord was not energized and that the 

generator which provided power to the cord was out of service because the battery for the 

generator was dead. (Tr. 122). He stated that the equipment would have been inspected before 

the conveyor was started. (Tr. 123). Higman testified that the conveyor had not been used for 

27 FMSHRC 648 
"some time" and it was taken apart and removed from the prop~rty stiortly after the inspection. 

He believes that the tear was created by a loader operator when the area around the conveyor was 

cleaned up the last time it was used. The spec plant was in a separate location from the rest of 

the plant and it had no "operating association with the other equipment" at the plant. (Tr. 143). 

Rollins testified that the spec plant was about 100 feet away from the other equipment. (Tr. 180). 

Justin Higman testified that he told Inspector Willett that the spec plant was shut down 

and was scheduled to be tom down and removed from the plant. (Tr. 204). The spec plant had 

been out of service for some time. (Tr. 206-07). The spec plant was not tagged out. (Tr. 210). 

Inspector Willett recalls being told that other equipment at the plant had been abandoned, but he 

did not believe that this conversation applied to the spec plant. (Tr. 216). 

I find that the Secretary did not establish a violation. The spec plant was shut down and 

was not being used. I credit the testimony of Harold Higman that the battery to the portable 

generator that supplied power to the cord was dead. The equipment was tom down shortly after 

the inspection and removed from the property. The cited cord did not function as an electrical 

conductor at the time of the inspection so the damage to the cord did not present a safety hazard. 

Inspector Willett recognized that the cord was not energized at the time of his inspection. I find 

that this cord had not been used for some period of time and there is no evidence that the cord 

had ever been used to conduct electricity in the damaged condition. My analysis of Citation No. 

6153984 set forth above, also applies to this citation. 

E. Citation Nos. 6153986, 6153987, and 6153988 

Higman Gravel agreed to withdraw its contest of these citations at the hearing. As a 

consequence, these citations are affirmed as written. 

II. APPROPRIATE CIVIL PENALTIES 

Section l lO(i) of the Mine Act sets out six criteria to be considered in determining 

appropriate civil penalties. The IA Portable #1 has a history of 12 citations issued during the 24 

months preceding the inspection. (Ex. G-1 ). Higman Gravel is a small operator and the IA 

Portable #1 is a small mine. All of the violations were abated in good faith. The penalties 

assessed in this decision will not have an adverse effect on Higman Gravel's ability to continue 

in business. With respect to Citation No. 6153982, the gravity was non-serious and the 

negligence was moderate. With respect to the remaining citations, the gravity and negligence are 

as set forth in the citations. Based on the penalty criteria, I find that the penalties set forth below 

are appropriate. 

27FMSHRC649 
ID. ORDER 

Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 30 C.F.R. § Penalty 

6153982 56.12032 $60.00 

6153983 56.14107(a) Vacated 

6153984 56.12004 Vacated 

6153985 56.12004 Vacated 

6153986 56.14107(a) 60.00 

6153987 47.44(b) 60.00 

6153988 56.12004 60.00 

Accordingly, the citations contested in these cases are AFFIRMED, MODIFIED, or 

VACATED as set forth above and Higman Sand & Gravel, Inc., is ORDERED TO PAY the 

Secretary of Labor the sum of $240.00 within 30 days of the date of this decision. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Thomas J. Pavlat, Conference and Litigation Representative, Mine Safety and Health 

Administration, 515 W !51 Street, Suite 333, Duluth, l\t1N 55802-1303 (Certified Mail) 

Jeffrey A. Sar, Esq., Baron, Sar, Goodwin, Gill & Lohr, P.O. Box 717, Sioux City, IA 51102-

0717 (Certified Mail) 

RWM 

Ge•f\. .. \ . ,, -"\\''\! r'l'··:\l. \:"'f~. , ,:11115. :~0-'N, j. :.:-:·M J"'-.,"fo 'I• • ,A ' 1 •',. 

27 FMSHRC 650