DECEMBER 1997 

CQMMISSION DECISIONS 

12-16-97 Williams. Natural Gas Company 

ADMINISTRATIVE LAW JUPGE DECISIONS 

12-02-97 Matthew J . Matics v. Coalfield Services 

12 - 04 - 97 Arrow Crushed Stone, Inc . 

12 - 04-97 Sec. Labor on behalf of Jerry Caudill 

v. Leece, Inc. 

12 - 17 - 97 Newmont Gold Company 

12 - 17 - 97 Laurel Run Mining Company 

12-23-97 Consolidation Coal Company 

12-29-97 Empire Iron Mining Partnership 

APMINIST&ATIVE LAW JUDGE ORDERS 

11 - 18 - 97 Quapaw Company 

i 

CENT 96-124-M Pg. 1863 

WEVA 97-144 - D Pg . 1873 

CENT 97 - 60- M Pg . 1875 

KENT 98-48-D Pg. 1884 

WEST 97-293-M Pg . 1889 

WEVA 94-347-R Pg. 1891 

LAKE 97-5 Pg. 1897 

LAKE 97 - 37 - RM Pg. 1912 

CENT 97-198-M Pg. 1927 

( 

DICIMBBR 1997 

Review was granted in the following cases during the month of December; 

Secretary of Labor, MSHA v. Windsor Coal Company, Docket No. WEVA ·97-95. 

{Judge Koutras, October 27, 1997) 

Secretary of Labor, MSHA v. Newmont Gold Company, Docket Nos. WEST 95-434-M, 

WEST 95-467-M. {Judge Manning, October 28, 1997) 

Review was denied in the following cases cturing the month of December; 

Secretary of Labor, MSHA v. Bob Bak Construction, Docket No. CENT 97 - 61 - M. 

{Judge Weisberger, November 3, 1997) 

Stillwater Mining Company v. Secretary of Labor, MSHA, Docket No. 

WEST 96-281-RM. (Judge Manning, November 18, 1997) 

ii 

COMMISSION DECISIONS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

December 16, 1997 

Docket Nos. CENT 96-124-M 

CENT 96-158-M 

WILLIAMS NATURAL GAS COMPANY 

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

DECISION 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1994){"Mine Act" or "Act"). At issue is whether Williams 

Natural Gas Company ("WNG"), an operator of an interstate natural gas pipeline system with 

facilities located on mine prope~, is an "operator" within the meaning of section 3( d) of the 

Mine Act, 30 U.S.C. § 802(d),

2 and whether the Department of Transportation ("DOT") has 

preempted thejurisdiction ofthe Department of Labor's Mine Safety and Health Administration 

("MSHA") over natural gas pipeline facilities located on mine premises. Administrative Law 

Judge Jerold Feldman concluded that WNG is an operator under the Mine Act and that the DOT 

1 Commissioner Beatty assumed office after this case had been considered and decided. 

A new Commissioner possesses legal authority to participate in pending cases, but such 

participation is discretionary. Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1218 n.2 (June 

1994). In the interest of efficient decision making, Commissioner Beatty has elected not to 

participate in this matter. 

2 Section 3( d) of the Mine Act provides: 

"operator" means any owner, lessee, or other person who 

operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such 

mine[.] 

30 u.s.c. § 802(d). 

1863 
regulations do not preempt MSHA jurisdiction. 19 FMSHRC 287 (February 1997) (ALJ). WNG 

filed a petition for discretionary review, which the COirunission granted. For the reasons that 

follow, we affirm the judge's decision. 

I. 

Factual and Procedural Back2round 

WNG operates an interstate pipeline for transmission of natural gas and owns pipeline 

facilities and meter buildings, also referred to as sheds, located on the property of the Independence Quarry and Mill and the Monarch Cement Company, both located in Kansas. 19 FMSHRC 

at 287, 291; S. Cross Mot. for Sunun. Dec., Ex. B, Timmons Aff. at 1-2 ("Timmons Aff."). The 

Independence Quarry and Mill and Monarch Cement Company are mines subject to MSHA 

jurisdiction.3 19 FMSHRC at 288. WNG transports natural gas purchased by the mines, which it 

considers to be its customers. ld at 287. WNG exclusively controls the pipelines and buildings, 

which are kept locked and to which only WNG has access. Jd at 288; Timmons Aff. ~4. WNG 

perfonm all maintenance activities at the sheds, the areas surrounding the sheds, and on the 

pipelines. Timmons Aff. ~6. A pipeline carrying hazardous waste operated by a third party is 

located about 20 feet above the sheds at the Independence Quarry and Mill. Jt. Stip. 'ji9; 

Timmons Aff. ~7. WNG employees visit the meter buildings weekly and "must be ready to 

access its pipeline facilities at any time to respond to emergencies." WNG. Mot. for Summ. Dec. 

at 5 n.2, I 0. The gas WNG transports to the mines arrives under high pressure. Timmons Aff. 

~9. At the WNG meter buildings, the gas is monitored and transformed into quantities and 

pressures that are useful in the production process. !d. The mines use .the natural gas transported 

by WNG to start large kilns that are necessary to produce cement. Jd at ~8. 

On January 23, 1996, MSHA Inspector James W. Timmons visited the Independence 

Quarry and Mill and issued Citation No. 4363655 to WNG alleging a violation of30 C.F.R. 

§ 56.4101 4 for failing to post signs prohibiting smoking or open flames at its meter buildings 

located on mine property.5 Jt. Stip. 6. The citation charged that "[t]here was dryed [sic] 

3 The judge rendered his decision based on cross motions for summary decision. 19 

FMSHRC at 287. Stipulations of fact were received in Docket No. CENT 96-124-M, relating to 

the Independence Quarry and Mili. However, as the judge noted, the facts of the captioned 

dockets are similar, and the parties therefore agreed that "in the absence of specific factual 

distinctions raised by either party, the arguments made in CENT 96-124-M shall also apply to 

CENT 96-158-M [relating to the Monarch Cement Company)." Jd 

4 Section 56.41 01 provides: 

Readily visible signs prohibiting smoking and open flames 

shall be posted where a fire or explosion hazard exists. 

30 C.F.R. § 56.4101. 

s The citation alleges the existence of four WNG buildings, but the parties later stipulated 

that the violation relates to two natural gas pipeline meter buildings. Jt. Stip. 6. 

1864 
vegetation and other combustables [sic] in and around the buildings" and that "[t]he meter 

houses were approximately 1 0 feet from a walkway and a roadway." S. Pet. for Assessment of 

Civl Penalty, July 15, 1996, Ex. A. The citation as originally issued alleged that the violation 

was not significant and substantial ("S&S").6 MSHA later proposed a civil penalty of $69. !d. 

On April 8, 1996, Inspector Timmons visited the Monarch Cement plant and issued 

Citation No. 4357036 to WNG alleging a similar violation of section 56.4101. Timmons Aff. 

~10. The citation charged that "[t]here was a person observed smoking in the area at the time of 

inspection" and that "employee cars and trucks [are] parked ... approximately [five feet] from 

(the pipeline]." S. Pet. for Assessment of Civil Penalty, Sept. 12, 1996, Ex. A. The Secretary 

proposed a peJ1alty of $50 for this violation. !d. 

In its answers, WNG admitted the absence of warning signs at all four buildings at both 

· mines. WNG Ans., Aug. 12, 1996, at 2; WNG Ans., Sept. 30, 1996, at 2. WNG disputed that a 

fire or explosion hazard existed. !d. · 

The judge framed the dispositive issue as "whether WNG' s provision of natural gas 

through its meter buildings and pipeline facilities located on mine property constitutes the 

requisite 'performance of services' at a mine by an independent contractor[,]" thereby subjecting 

the contractor to MSHAjurisdiction under section 3(d) of the Mine Act.7 19 FMSHRC at 289. 

The judge stated that the federal courts of appeals are split as to the correct interpretation of the 

independent contractor-operator language contained in section 3( d). 19 FMSHRC at 289. He 

contrasted the ostensibly narrow interpretive approach taken by the Fourth Circuit in Old 

Dominion Power Co. v. Secretary of Labor, 772 F .2d 92 ( 1985), with the broad, plain language 

approach of the courts of appeals in Otis Elevator Co. v. Secretary of Labor, 92I F .2d 1285 

(D.C. Cir. I990), aff'g II FMSHRC 1896 (October 1989) ("Otis f') and 11 FMSHRC 1918 

(October 1989) ("Otis If'), and loy Technologies, Inc. v. Secretary of Labor, 99 F.3d 991 (1Oth 

Cir. 1996), aff.'g I7 FMSHRC 1303 (August 1995), cert. denied,_ U.S._, 137 L.Ed.2d 818, 

117 S.Ct. 169i (1997). !d. at 289-91. Noting that "the mine sites in these proceedings are 

located ... within the appellate jurisdiction of the Tenth Circuit[,]" the judge viewed Joy 

Technologies, rather than Old Dominion, as "the controlling case law[.]" !d. at 291. Based on 

6 The S&S terminology is taken from section 104(d)(1) ofthe Act, 30 U.S.C. 

§ 814( d)( 1 ), which distinguishes as more serious any violation that "could significantly and 

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

7 The judge erroneously found that "(t]he likelihood of explosion is not in issue because 

the violations in question have been designated as nonsignificant and substantial." 19 FMSHRC 

at 288 n.l. In fact, MSHA modified Citation No. 4363655 on February 15, 1996, to allege an 

S&S violation based on results of a test indicating an explosive atmosphere in and around one of 

the WNG buildings. S. Pet. for Assessment of Civil Penalty, July 15, 1996, Ex. A. However, the 

Secretary has not appealed the non-S&S finding to the Commission; accordingly, we do not 

address the likelihood of explosion. 

1865 
the stipulations that WNG "maintains meter buildings and pipeline facilities on mine property 

through which it provides natural gas energy to mine operators[,]" and WNG's admission that it 

is an independent contractor, the judge concluded that, under Joy Technologies, WNG is an 

operator subject to Mine Act jurisdiction. !d. In addition, he rejected WNG's argument that it 

did not provide "significant services" to the mines, characterizing WN G' s provision of natural 

gas for mining operations as "significant, if not indispensable, services that are fundamental to 

the extraction process." !d. at 291-92. · 

The judge rejected WNG's claim that DOT regulation ofWNG's interstate natural gas 

pipelines preempted MSHAjurisdiction over WNG. 19 FMSHRC at 292. He assessed civil 

penalties of $119 for both violations. !d. at 293. 

II. 

Disposition 

A. Whether WNG is an Operator 

Relying on Old Dominion, WNG argues that it is not an operator under the Mine Act. 

PDR. at 2-4.8 WNG contends that the Secretary failed to satisfy the Old Dominion criteria. !d. 

at 2-3. WNG criticizes the judge's reliance on the appellate court decisions in Oris Elevator and 

Joy Technologies. !d. at 3-4. In the alternative, WNG argues that, even under Joy Technologies, 

it does not provide significant services required for a finding of operator status. !d. at 4-5. 

The Secretary responds that the judge correctly found WNG to be an operator un~er the 

courts of appeals' Oris/Joy rationale. S. Br. at 8-9. The Secretary points out that the only two 

circuits to which an appeal from this case can be taken, the Tenth and D.C. circuits, have both 

held that section 3(d) includes within its ambit "any independent contractor performing services . 

. . at [a] mine." ld. at 8, 9 n.6, ciling Joy, 99 F.3d at 999-1000. She urges the Commission to 

adopt the Otis/Joy framework. ld. at 8-9. The Secretary also contends that the judge properly 

rejected WNG · s argument that it does not perform "significant services" at the mines. I d. at 10-

12. In the alternative, the Secretary argues that WNG satisfies the requirements for operator 

status under the tests used by both the Commission and the Fourth Circuit. ld. at 13-17. 

Section 3(d) of the Mine Act expanded the definition of"operator" contained in the 

Federal Coal Mine Health and Safety Act of 1969,30 U.S.C. § 801 et seq. (1976) (amended 

1977), to include "any independent contractor performing services or construction at such mine." 

We conclude that WNG tails within the broad scope of the term "operator" under the analysis 

8 Pursuant to Commission Procedural Rule 75(a), 29 C.F.R. § 2700.75(a), WNG 

designated its petition for discretionary review as its brief. 

1866 
adopted by the courts of appeals for the D.C. and Tenth Circuits, which have appellate juris-. 

diction in this matter.

9 · 

In its opinion affirming in result the Commission's decision in the Otis Elevator Co. 

cases, the D.C. Circuit based its analysis on a strict reading of section 3(d). Referencing that 

section's definition of"operator" as "'any independent contractor performing services or 

construction at [a] mine[,]". the court stated: "We think that ... phrase ... means just that-any 

independent contractor performing services at a mine." 921 F.2d at 1290 (footnote omitted); see 

30 U.S.C. § 802(d). The court explicitly rejected the Old Dominion approach limiting section 

3(d) to contractors involved in the extraction process who have a "continuing presence" at the 

mine. 921 F.2d at 1290. The court found these limitations contrary to the express terms of 

section 3( d), and was not persuaded by the legislative history relied upon by Old Dominion. 921 

F.2d at 1290-91. For the same reasons, the D.C. Circuit also rejected what it termed "the 

Commission's diluted version of the Old Dominion criteria," i.e., the limitation that "section 3(d) 

extends to an independent contractor only if it provides a service sufficiently related to the 

extraction process and only if it maintains a presence in a mine that is neither rare nor infrequent." Jd. at 1290. In its decision on appeal in Joy, the Tenth Circuit adopted the D.C. Circuit's 

approach and rejected both the Old Dominion framework and the Commission's Otis test. Joy 

Technologies, 99 F.3d at 999. 10 

Application of the approach of the Tenth and D.C. Circuits supports the judge's determination that WNG is an operator. WNG does not dispute that it is an independent contractor. See 

19 FMSHRC at 291. WNG was clearly performing a service on mine property- assuring the 

delivery of natural gas to the mines and transforming the natural gas into quantities and pressures 

required to start large kilns necessary to produce cement at the mines. We therefore affirm the 

9 See 30 U.S.C. § 816(a)(l). 

10 As set forth in his concurring opinion in Joy, 17 FMSHRC at 1311, Commissioner 

Marks believes that the D.C. Cir~uit approach in Otis, that has been followed by the Tenth 

Circuit in Joy, is the most reasoned approach to interpreting the term "operator" under section 

3(d) of the Mine Act, and would adopt that approach in all cases before the Commission. Like 

those court~ of appeals, Commissioner Marks rejects both the Old Dominion framework and the 

_Commission's Otis test. Commissioner Marks also disagrees with the concern of Commissioners Riley and Verheggen (at n.11) that the Tenth and D. C. Circuit approach does not include a de 

minimis limitation on independent contractor liability. As discussed in his Joy opinion, 17 

FMSHRC at 131 f, the D.C. and Tenth Circuits expressly provide for and leave open the question 

of whether there may be a point at which an independent contractor's "contact with a mine is so 

infrequent or de minimis that it would be difficult to conclude that services were being performed." Otis, 921 F.2d at 1290 n.3 (citation omitted); see also Joy, 99 F.3d at 1000. 

1867 
judge's conclusion that WNG is an operator based on the rationale of the Tenth and D.C. circuits 

only insofar as this matte:- arises within the appellate jurisdiction of those circuits. 11 

We reject WNG's argument that the Tenth Circuit decision in Joy is distinguishable 

because in that case the contractor was performing "significant services." First, the Tenth~s 

Circuit's "operator" test does not require proof that "significant" services were performed. As 

the Secretary points out, S. Br. at 10 n.7, the Tenth Circuit discussed "significant services" only 

in the context of addressing Joy's contention that it was not an independent contractor, a status 

WNG does not dispute. The court made clear that it found Joy to be an operator because its 

representative "performed services at the mine." 99 F.3d at 1000. In any case, substantial 

evidence supports the judge's finding that WNG's services are "significant, if not indispensable," 

in that production of cement apparently cannot take place without them. 

11 Commissioners Riley and Verheggen are unwilling to accept the approach ofthe Tenth 

and D.C. circuits any further than their Otis and Joy decisions cQntrol the outcome of this 

particular case, arising as it does within the appellate jurisdiction of those circuits. They choose 

not to abandon the Commission's Otis cases, which set forth a two-pronged test for determining 

whether an independent contractor is an operator under section 3( d). First, the Commission 

examines the independent contractor's "proximity" to the mining process and whether its work is 

"sufficiently rdated'' to that process. Otis I, 11 FMSHRC at 1902. Second, the Commission 

examines "the exterit of (the contractor's] presence at the mine." !d. Commissioners Riley and 

Verheggen are particularly unwilling to abandon the holding in Otis I that "there may be a point . 

. . at which an independent contractor's contact with a mine is so infrequent or de minimis that it 

would be difficult to conclude that services were being performed." !d. at 1900-01 (quoting 

National Indus. Sand Ass 'n v. Marshall, 601 F.2d 689, 701 (3d Cir. 1979)). Such a de minimis 

limitation on independent contractor liability is difficult to reconcile with the Otis and Joy 

decisions of the Tenth and D.C. circuits. See Otis, 921 F.2d at 1290 & n.3; Joy, 99 F.3d at 1000. 

As to whether WNG's presence at the quarries was sufficient to satisfy the Commission's 

Otis test, Commissioners Riley and Verheggen agree with the judge's characterization ofWNG's 

provision of natural gas to the quarries as a "significant, if not indispensable, service[] that [is] 

fundamental to the extraction proces.s." See 19 FMSHRC at 291 . They also find that,. in light of 

the weekly visits by WNG employees to the meter buildings located on mine property, WNG's 

presence at the quarries was both frequent and highly significant. They thus conclude that 

WNG's presence at the quarries satisfies both prongs of the Commission's Otis test. 

1868 ( 
B. Preemption 

We reject WNG's argument that MSHA regulations are preempted by DOT regulation of 

interstate natural gas pipelines. WNG provides no statutory or case law support for this 

proposition. United Gas Pipeline Co. v. Terrebonne Parish Police Jury, 319 F.Supp. 1138, 1140 

(E.D. La. 1970), and Tenneco Inc. v. Public Serv. Comm 'n, 489 F.2d 334, 336 (4th Cir. 1973), 

both cited by WNG, held that the Natural Gas Pipeline Safety Act of 1968 preempted state 

establishment and enforcement of safety standards related to interstate transmission of gas by 

pipeline. Neither case stands for the proposition that DOT regulations preempt regulations of 

other federal agencies that may affect interstate gas pipelines in some way. Moreover, the Mine 

Act contains no language akin to section 4(b )( 1) of the Occupational Safety and Health ("OSH") 

Act, 29 U.S.C. § 653(b)( 1 ), which expressly preempts regulations issued under the OSH Act 

where "other Federal agencies" have "exercise[ d) statutory authority to prescribe or enforce 

standards or regulations affecting occupational safety or health." And WNG has not cited 

language in the federal pipeline safety laws preempting regulations issued by other federal 

agencies. In this cormection, we note that the specific preemption provision contained in the 

existing federal pipeline safety statute, 49 U.S.C. § 60104(c) (1994), preempts only state safety 

standards "for interstate pipeline facilities or interstate pipeline transportation." It does not 

preempt federal safety standards applicable to mines.

12 

12 Also, as the Secretary points out (S. Br. at 21), DOT's regulations governing prevention of accidental ignition do_ not appear to conflict with MSHA' s regulations. Title 49 C.F .R. 

§ 192.751(c) requires the operator to "[p]ost warning signs, where appropriate," in order to 

"minimize the danger of accidental ignition of gas in any structure or area where the presence of 

gas constitutes a hazard of fire or explosion." See Panhandle Eastern Pipe Line Co. v. Madison 

County Drainage Bd, 898 F. Supp .. 1302, 1315 (S.D. Ind. 1995) (federal pipeline safety law did 

not preempt state statute authorizing relocation of pipeline where operator could comply with 

both state and federal requirements). 

1869 

J . 
III. 

Conclusion 

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

;(!_ ' ~~rdan,Ch~ 

Marc Lincoln Marks, Commissioner 

1870 
Distribution 

Jerald S. Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd, Suite 400 

Arlington, VA 22203 

Stephen Schroeder, Esq. 

Jay V. Allen, Esq. 

The Williams Companies, Inc. 

P.O. Box 2400 

4100 One William Center 

Tulsa, OK 74102 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety and Health Review Conunission 

Office of the Administrative Law Judges 

2 Skyline, 1 Olh Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

.• 

1871 
1872 
ADMINISTRATIVE LAW JUDGE DECISIONS 
·' 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

5203 LEESBURG PIKE 

FAUS CHURCH, VIRGINIA 22041 

DEC 2 1997 

MATIHEW J. MATICS, 

Complainant 

DISCRlMINA TION PROCEEDING 

v. Docket No. WEVA 97-144-D 

MSHA Case No. HOPE CD 97-07 

COALFIELD SERVICES, INC., 

Respondent Mine ID No. 46-08436 

Appearances: 

Before: 

Upper Big Branch South Mine 

DECISION 

Matthew J. Matics, Handley, West Virginia, prose; 

E. Forrest Jones, Jr., Esq., Albertson & Jones, Charleston, 

West Virginia, on behalf of Respondent. 

Judge Bulluck 

This case concerns a discrimination proceeding filed pursuant to Section 105(c)(3) of~e 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (c)(3). Matthew J. Matics alleges 

that he was unlawfully laid off by Coalfield Services in October 1996, and seeks reinstatement 

to his job and back pay. 

A hearing on the merits was convened on October 28, 1997, in Charleston, West Virginia. 

At the hearing, the parties entered into a settlement agreement whereby Coalfield Services agreed 

to pay to Matics the sum of $4,000.00, and Matics agreed to withdraw his discrimination 

complaint. The settlement was accepted at hearing. That determination is hereby confirmed. 

Coalfield Services has provided documentation that, in accordance with the settlement 

agreement, it has paid Matics $4,000.00. 

ORDER 

The settlement is appropriate and is in the public interest. WHEREFORE, the approval 

of settlement and withdrawal of discrimination complaint are GRANTED, and Coalfield 

Services h~ving fully complied with the terms of the settlement, this proceedings is 

DISMISSED. 

/7 1-nuLfL:U, ~~.._tt_,Jv ~~;.~ R Bulluck 

Administrative Law Judge 

1873 
Distribution: 

Mr. Matthew Matics, P.O. Box 74, Handley, WV 25102 (Certified Mail) 

E. Forrest Jones, Jr., Esq., Albertson & Jones, Nwnber 13, Kanawha Blvd., W., Suite 200, 

P.O. Box 1989, Charleston, WV 25327 (Certified Mail) 

Mr. Chris Aker, Superintendent, Coalfield Services, Inc., Rt. 2, P.O. Box 365, Wytheville, VA 

24382 (Certified Mail) · 

\mea 

1874 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 4 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

ARROW CRUSHED STONE, INC., 

Respondent 

1997 

CnnLPENALTYPROCEEDINGS 

Docket No. CENT 97-60-M 

A. C. No. 41-03717-05511 

Docket No. CENT 97-128-M 

A. C. No. 41-03717-05512 

Blwn Quarry 

DECISION 

Appearances: Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 

Dallas, Texas, and Ronald M. Mesa, Conference and Litigation Representative, 

Mine Safety and Health Administration, U.S. Department of Labor, Dallas, Texas, 

for the Petitioner; 

John Whitehorn, Vice President, Arrow Crushed Stone, Inc., Cleburne, Texas, 

for the Respondent. 

Before: Judge Feldman 

These proceedings concern petitions for assessment of civil penalties filed by the 

Secretary of Labor against the respondent pursuant to section 110(a) of the Federal Mine Safety 

and Health Act of 1977 (the Act), 30 U.S.C. § 820(a). The petitions seek to impose a total civil 

penalty of$651.00 for eight alleged violations of the mandatory safety standards in 30 C.F.R. 

Part 56 of the regulations. Six of the eight alleged violations were designated as non-significant 

and substantial (non-S&S) violations. These matters were heard on November 5, 1997, in 

Cleburne, Texas. John Whitehorn, Vice President of Arrow Crushed Stone, Inc., (ACS), 

appeared on behalf of the respondent corporation. The parties stipulated that ACS is a mine 

operator subject to the jurisd~ction of the Act 

At the hearing, ACS withdrew its contest of the $50.00 civil penalty proposed for Citation 

Nos. 785293 and 785294 in Docket No. CENT 97-128-M. Thus, six citations remained for 

disposition. At the hearing, the parties were advised that I would defer my ruling on these 

citations pending post-hearing briefs, or, issue a bench decision if the parties waived their rights 

to file post-bearing briefs. The parties waived the filing of briefs. (Tr. 52-53). Accordingly, this 

decision formalizes the bench decision issued with respect to each of the contested citations. The 

bench decision vacated one citation, affirmed three non-S&S citations, and modified two 

citations characterized as significant and substantial by deleting the S&S designation. The total 

1875 
civil penalty assessed in these matters for the eight citations, including the two citations for 

which the contest was withdrawn, is $380.00. 

I. Pertinent Case Law and Pepalty Criteria 

The bench decision applied the Commission's standards with respect to what constitutes 

an S&S violation. A violation is properly designated as S&S in nature if, based on the particular 

facts surroWlding that violation, there exists a reasonable likelihood that the hazard contributed to 

by the violation will result in an injury or an illness of a reasonably serious nature. Cement. 

Division, National Gypsum, 3 FMSHRC 822,825 (Aprill981). InMathies·Coal Co., 6 

FMSHRC 1 (January 1984), the Commission explained: 

In order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: 

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

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

(3) a reasonable likelihood that the hazard contributed to (by the violation] will 

result in an injury; and (4) a reasonable likelihood that the injury in question will 

be of a reasonably serious nature. 6 FMSHRC at 3-4. 

See also Austin Power Co. v. Secretary, 861 F.2d 99, 104-05 (5th Cir. 1988), affg 9 FMSHRC 

2015, 2021 (December 1987) (approving Mathies criteria). · 

The bench decision also applied the statutory civil penalty criteria in section 11 O(i) of the 

Act, 30 U.S.C. § 820(i), to determine the appropriate civil penalty to be assessed. Section llO{i) 

provides, in pertinent part, in assessing civil penalties: 

the Co~ission shall consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of the operator charged, 

whether the operator was. negligent, the effect on the operator's ability to continue 

in business, the gravity of the violation, and the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after notification of a 

violation. 

For penalty assessment purposes, the evidence reflects mitigating factors in that the 

respondent is a small to moderately sized operator that does not have a significant history of 

violations. (Gov. Ex. 1). The proposed civil penalties will not effect the respondent's ability to 

remain in business, and the respondent rapidly abated the cited violations. 

1876 
II. Findin2s and Conclusions 

ACS's Blum Quarry mine is a limestone facility located in Hill County. Texas, where 

limestone materials are extracted through the drilling and blasting process. The extracted is then 

loaded and hauled to the ·crusher and screening area where the material is clean~ crushed and 

sized. There are approximately nine people employed at the Blum Quarry. 

A. Docket No. C~nt 97-60-M 

1. Citation No. 4448274 

Mine Safety and Health Administration (MSHA) Inspector Melvin H. Robertson 

conducted a regular inspection of the Blum Quarry on April 11, 1996. Robertson was 

accompanied by Whitehorn. Robertson proceeded to inspect the electrical installations located in 

the crusher area. He observed the crusher was powered by a generator. There was a main 

disconnect switch at the generator that could be used to de-energize the crusher. The generator 

supplied power to an electrical enclosure mounted on stands located approximately 15 feet from 

the screening plant. The enclosure consisted of a large box containing starter controls for motors 

in the crusher and screening areas and a separate, smaller disconnect box, mounted on the east 

end side of the starter control box. The disconnect box was an alternative to -using the generator 

disconnect switch as a means of de-energizing the crusher and screen motors. The doors on the 

starter box and disconnect box were closed. There were unlocked padlocks hanging on the doors 

that could be used to lock out the boxes. 

Robertson determined that the disconnect box contained fuses energizing 480 volt 

current. Although there were no exposed electrical conductors in the starter box. the fuses in the 

disconnect box were connected.to exposed power conductors (wires) in that there was neit.lter 

protective insulation nor a face plate installed. Robertson noted the disconnect box did not 

contain a switch that automatically de-energized the box when the disconnect box door was 

opened. Robertson was concerned that an employee could accidentally contact the exposed 

energized wires in the disconnect box when attempting to operate the starter controls, or when 

attempting to access the disconnect box. 

As a result of his observations, Robertson issued Citation No. 4448274 citing an alleged 

violation of the mandatory safety standard contained in section 56.1240,30 C.F.R. § 56.1240. 

lhis mandatory standard specifies that, "operating controls shall be installed so that they can be 

operated without danger of contact with energized conductors." Robertson opined that the 

violation was S&S because of the likelihood of serious or fatal injury in the event an individual 

came in contact with this 480 volt cWTent. 

The bench decision in Citation No 4448274 focused on the language and intent of the 

cited mandatory standard in section 56.1240. This mandatory standard primarily deals with the 

exposure of operating controls to energized conductors. Although Robertson was unable to 

1877 
clearly recall the contents of the larger starter control box, Robertson did not dispute Whitehorn's 

testimony that this box contained shielded on-off switches and circuit breaker switches that were 

protected by a face plate. Each of the doors on the starter control box and disconnect box were 

closed. Given the separate location of the disconnect box on the side of the starter control box, it 

is unlikely that anyone opening the door of the starter box to access the operating controls would 

be exposed to the exposed conductors in the closed disconnect box. In fact, Robertson 

apparently conceded that there was little likelihood of injury in the context of section 56.1240 

stating, •J should have used a different standard number and wrote (sic) him two citations 

(a separate citation for the fuse disconnect box).• (fr. 47). 

Although there was minimal likelihood of injury, the fact that the disconnect box 

was not padlocked, nor protected by an automatic shut-off switch engaged when the door was 

opened, provides a basis for concluding that contact with the exposed electrical conductors, 

while remote, could occur during the operation of the starter control switches. Accordingly, 

Citation No. 4448274 is affmned. However, the citation is modified to delete the S&S 

designation. Given the reduced gravity of the cited condition, and, in consideration of the other 

penalty criteria in section llO(i) of the Act, 30 U.S.C. § 820(i), the $147.00 civil penalty 

proposed by the Secretary shall be reduced to $50.00. (fr. 53-55). 

2. Citation No. 4448277 

After examining the electrical installations, Robertson insJ)ected the quarry area 

of the mine. At the time ofhis inspection there was no quarry activity in progress. Robertson 

described the mine as a single-bench quarry where vertical holes are drilled, filled with 

explosives_, and blasted to loosen the rock. The material is then loaded into haulage trucks by a 

front-end loader and transported to the crushing area for processing. 

The vertical holes are drilled by a rotary drill. The rotary drill has a large mast with a 

drill stem that contains a rotary bit that drills into the earth. The drill is designed with three 

hydraulic jacks to stabilize the drill. There is a hydraulic jack located in the front and two 

hydraulic jacks in the rear on each side of the drill mast. The jacks are constructed with an upper 

cylinder that travels vertically up and down a lower ram. The ram on each hydraulic jack is 

designed to sit on a recta.1gular, flat jack plate that ordinarily provides maximum stability. 

The subject drill is depicted in a diagram admitted as Joint Exhibit 2. 

Robertson observed the rotary drill parked on the bench. The drill was re~g on the 

hydraulic jack rams with no rectangular jack plates at the feet of the jacks. Robertson opined that 

the lack of jack piates affected the drill's stability and created a tipping hazard that exposed the 

drill operator to injury. Whitehorn testified that the jack rams, that have narrow conto~ 

bottoms, provided greater stability than the flat, rectangular jack pads, because .the rams dig into 

the bench and are superior to jack plates given the unevenness of the quarry floor. As a result of 

his observations, Robertson issued Citation No. 4448277 citing a non-S&S violation of section 

1878 
56.14100(b), 30 C.F.R. § 56.14100(b). This mandatory safety standard requires defects in 

equipment to be corrected in order to prevent personnel from exposure to hazards. 

The bench decision in this citation noted mitigating circumstances, i.e., uneven terrain 

that, in the operator's judgement, made the jack plates unnecessary. While I am sensitive to 

ACS's assertion that it was exercising its judgement in this instance, on balance, an operator's 

unilateral removal of safety equipment is done at the operator's risk and constitutes a violation of 

the cited mandatory standard. The secretary has proposed a $50.00 civil penalty. Given the 

mitigating circumstances and low gravity of the cited condition, a civil penalty of$30.00 shall be 

imposed. (Tr. 73-75). 

In view of the above, the total proposed civil penalty in Docket No. CENT 97-60-M is 

reduced from $197.00 to $80.00. 

B. Docket No. CENT 97-128-M 

1. Citation No. 4453270 

Robertson, accompanied by Whitehorn, once again inspected the Blum Quarry facility on 

September 24, 1996. Robertson observed a water tank mounted on a Ford F-600 flatbed truck. 

The truck was parked in the maintenance yard in the general vicinity of the shop building. The 

truck is used for dust control of the roadway haulage areas. The truck was not tagged out of 

service. Upon inspecting the truck, ~obertson detennined the manually operated hom had been 

removed. He also concluded the parking brake was broken in that it could not be engaged. 

With respect to the hom, Robertson issued Citation No. 4453270 citing a violation of the 

mandatory standard in section 56.14132(a) that requires manually operated horns on mobile 

equipment. Robertson concluded the cited condition was non-S&S. 

Whitehorn does not dispute that the hom was inoperable. He stated the truck was 

recently purchased and was not in service. Whitehorn, however, admitted the truck was not 

tagged out of service. Robertson testified that, during the inspection, Whitehorn did not contend 

the truck was not in service. 

Although Whitehorn maintains the truck was not in service, it was not tagged out of 

service. M9reover, Whitehorn failed to inform Robertson that the truck was not operational 

during Robertson's inspecti~n. Although Whitehorn now argues the truck was not being used, 

exculpatory statements initially made at trial, and not communicated to the inspector during the 

inspection, are afforded little evidentiary weight. Consequently, the bench decision in this matter 

affirmed Citation· No. 4453270 as well as the $50.00 civil penalty proposed by the Secretary. 

(Tr. 94-95). 

1879 
2. Citation No. 4453271 

As noted above, Robertson also determined the water truck's parking brake could not be 

engaged. Whitehorn does not allege the parking brake was operational. As a consequence, 

Robertson issued Citation No. 4453271 citing a non-S&S violation of section 56.1410l(a)(2), 

30 C.F .R. § 14101 (a)(2). This mandatory standard requires parking brakes capable of holding 

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

characterized the condition as non-S&S because the vehicle typically operated on level groUod, 

and, because the vehide could be steered into a bank or benn in the e~ent the parking brake was 

applied and failed. 

The bench decision noted the importance of a parking brake, commonly referred to as an 

•emergency brake." As an emergency brake, a parking brake on a multi-ton vehicle is the 

method of last resort if the service brake fails. Defective parking brakes have been contributing 

factors in fatal accidents. See, e.g., Fluor Daniel, Incorporated 16 FMSHRC 2049 (October 

1994) (ALJ), rev 'd on other grounds, 18 FMSHRC 1143 (July 1996). While I do not agree with 

the non-S&S characterization of this condition, an administrative Jaw judge cannot charge an 

operator with an S&S violation if the charge has not been brought by the Secretary. Accordingly, 

Citation No. 4453271 is affirmed as a non-S&S citation. 

With respect to the appropriate penalty to be imposed, the Mine Act requires this 

Commission to make independent penalty determinations based upon the statutory penalty 

criteria in section 11 O(i) of the Act, despite the civil penalty proposed by the Secretary. See 

Sellersburg Stone Co., 5 FMSHRC 287,291-92 (March 1983), affd, 763 F.2d 1147 

('J'h Cir. 1984). The Secretary has proposed a $50.00 civil penalty. Taking into consideration 

the serious gravity of the defective parking brake condition, a civil penalty of$75.00 shall be 

imposed for Citation No. 4453271. Although I have exercised restraint in this negligible 

increase in pe~alty , the gravity of an inoperable emergency brake must not be understated. 

(Tr. 95-98). 

3. Citation No. 7852921 

MSHA Inspector Michael A. Davis inspected the Blum Quarry facility on 

February 19, 1997. Davis was accompanied by Darrell Hacker, ACS's loader operator. Davis 

began his inspection in the shop area where he observed a T erex 7221 B front-end loader that was 

undergoing engine repair. Davis inspected the seatbelt inside of the loader's cab. Davis testified 

the seatbelt was designed to attach to the floor on each side of the operator's seat by means of a 

plate and 1-bolt. The seatbelt portions attached to the floor were then attached to the pedestal 

base of the seat through a clevis where these ends were met by, and attached to, a lapbelt. 

(See Gov. Ex. 6B, pg. 1 of2). Davis surmised this method of seatbelt install~on provided the 

optimum operator protection. 

1880 
Davis observed the seatbelts were not attached to the seat as originally designed by the 

manufacturer. Rather, Davis noted that the seatbelts had been bolted down to the metal frame· of 

the console floor in the cab's compartment and they were not tethered to the seat. (See Gov. Ex. 

7). Davis testified that this front-end loader normally traveled at speeds between l 0 and 15 miles 

per hour. 

Whitehorn testified. that he had purchased the front-end loader with the seatbelts in the 

condition seen by Davis. Whitehorn maintained the seatbelts were securely bolted to the metal 

frame of the floor. He also stated the seatbelts had been installed in this way for several years and 

had never been previously cited by MSHA. 

As a result of his observations, Davis issued Citation No. 7852921 citing a non-S&S 

violation of section 56.14130(i), 30 C.F .R. § 56.14130(1). This mandatory standard provides, 

•seat belts shall be maintained in functional condition, and replaced when necessary to assure 

proper performance." (Emphasis added). Davis characterized the cited condition as non-S&S 

because he believed it was unlikely that a disabling injury would occur. (fr. 136). In essence, 

Davis conceded that the seatbelts bolted to the floor would provide protection, although he 

believed the protection to be less effective than that provided by the manufacturer's method of 

seatbelt installation. 

The bench decision noted that MSHA is not estopped from citing a violative condition 

simply because the condition was not cited during previous inspections. However, here the issue 

is whether a seatbelt securely bolted to a metal frame on the cab floor constitutes a seatbelt "in 

functional condition." As a threshold matter, even Davis concluded the seatbelt was functional in 

that he concluded it was unlikely to fail. An operator's modification of equipment is not a per se 

violation of the Secretary's mandatory safety standards. Thus, an operator is permitted to modify 

equipment provided that the modification is reasonable and not hazardous. For example, an 

operator can replace a manufacturer installed guard at a pinch point with a substitute screen 

provided that the screen is securely in place and, that the screen guard serves its intended 

protective purpose. So too, an operator can alter the bolting location of a seatbelt, particularly in 

a vehicle that routinely does not exceed approximately 15 miles per hour, as long as the seatbelt 

continues to provide effective protection. 

The Secretary has the burden of proof with respect to the fact of occmrence of a violation. 

The seatbelt was securely bolted in place to a metal frame on the floor. There is no adequate 

basis for concluding that the seatbelt, as installed, did not provide adequate protection or was not 

otherwise •functional" as contemplated by section 56.14130(2)(i). Accordingly~ Citation 

No. 7852921 shall be vacated. (fr. 156-60). 

4~ Citation No. 7852922 

During the course of Davis' February 19, 1997, inspection of the shop area, Davis 

observed an employee working in the plant area who was •sweeping around tables• and •doing a 

1881 
lot of clean-up in the shop." (fr. 166). As Davis approached, Davis concluded the individual 

was not wearing hard-toed boots because the front of the shoes were flat. Davis asked him about 

his footwear and confinned he was not wearing protective boots. 

Davis noted unsecured, heavy objects on a work table in the vicinity where this person 

was sweeping. Davis opined these heavy objects could fall off the table onto this individual's 

feet. The objects on the work table and other areas in the shop are depicted in three photographs 

admitted in evidence. (See Gov. Ex. 1 0). Davis was also concerned because he concluded, in 

addition to sweeping, this employee's job duties also included carrying heavy tools and objects. 

Davis issued Citation No. 7852922 citing a violation of the mandatory safety standard in 

section 56.15003,30 C.F.R. § 56.15003. This safety standard requires miners to wear protective 

footwear when in an area of a mine or plant "where a hazard exists which could cause injury to 

the feet." Davis characterized the cited condition as S&S because he conclude it was reasonably 

likely that an object would fall off the table, or be dropped, on this employee's foot. 

ACS does not dispute the fact of occurrence of the violation. However, ACS contests the 

S&S designation. (Tr. 172-73). 

The bench decision noted that, with respect to protective footwear, the likelihood of a 

significant injury causing event, i.e., an object falling on a foot, must be evaluated in the context 

of the job duties performed by the cited employee. Here, the individual was sweeping the shop. 

The photographs in Gov. Ex. 3 depict heavy objects placed securely on a well supported work 

bench. There is no basis for concluding that it was likely that an object would fall off the work 

bench and strike this employee's foot while he was sweeping. The Secretary has also failed to 

establish that this individual routinely lifted heavy objects, or, that he did not wear protectiye 

footwear wh~n doing so. 

Accordingly the S&S designation in Citation No. 7852922 shall be deleted. The 

Secretary has proposed a civil penalty of$204.00 for this citation. In view of the deletion of the 

S&S designation and the resultant reduction in the gravity of the cited condition, a civil penalty 

of$75.00 is imposed. (fr. 173-76). 

5. Citation Nos. 7852923 and 7852924 

At the hearing, ACS witlld.rew its contest of non-S&S Citation Nos. 7852923 and 

7852924. Consequently, ACS has agreed to pay the $50.00 civil penalty proposed by the 

Secretary for each of these citations. 

In swnmary, the total proposed civil penalty in Docket No. CENT 97-128-M is reduced 

from $454.00 to $300.00. 

1882 
ORDER 

In view of the above, IT IS ORDERED THAT: 

1. Citation No. 4448274 in Docket No. CENT 97-60-M, and Citation 

No. 7852922 in Docket No. CENT 97-128-M, ARE MODIFIED to delete the 

significant and substantial designations. 

2. Citation No. 7852921 in Docket No. CENT 97-128-M IS VACATED. 

3. Arrow Crushed Stone, Inc., SHALL PAY to the Mine Safety and Health 

Administration, within 30 days of the date of this decision, a total civil penalty of 

$380.00 satisfaction of the citations in issue, and, upon timely receipt of payment, 

Docket Nos. CENT 97-60-M and CENT 97-128-M ARE DISMISSED. 

Jerold Feldman 

Administrative Law Judge 

Distribution: 

Thomas A. Paige, Esq, Office of the Solicitor, U.S. Department of Labor, 525 S. Griffm Street, 

Suite 501, Dallas, TX 75202 (Certified Mail). 

Ronald M. Me~ Conference and Litigation Representative, U.S. Department of Labor, Mine 

Safety and Health Administration, Ill 0 Commerce Street, Room 4C50, Dallas, TX 75242 

(Certified Mail) 

John Whitehorn, Vice President, Arrow Crushed Stone, Inc., Rt. 7, Box 108, Cleburne, 

TX 76031 (Certified Mail) 

/mh 

1883 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, MSHA, 

On behalf of 

JERRY MICHAEL CAUDILL 

Complainant 

V. 

LEECO, INC., 

Respondent 

December 4, 1997 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. KENT 98-48-D 

BARB CD 98-04 

BARB CD 98-05 

BARB CD 98-06 

BARB CD 98-09 

Mine No. 68 

Mine ID 15-17497 

ORDER GRANTING TEMPORARY REINSTATEMENT 

On November 14, 1997, the Secretary ofLabo:t: filed an application for an order requiring 

Leeco, Inc. (Leeco) to reinstate temporarily Jerry Michael Caudill to his former position as a 

maintenance foreman at Leeco' s Mine No. 68, or to a similar position at the same rate of pay. 

The applicatiG>n w~ supported by the declaration of Ronnie L. Brock, Supervisory Special 

Investigator for the Secretary's Mine Safety and Health Administration (MSHA), and by copies 

of the complaints of discrimination filed by Caudill with MSHA. In the application, the 

Secretary alleged that Caudill, who was employed by Leeco as an electrician/repairman, was 

suspended and subsequently discharged as a result of being designated as a miners' 

representative and carrying out duties pursuant to that designation. 

Leeco responded that Caudill in fact was a maintenance foreman at the mine but, 

jurisdictional matters aside, Leeco denied the rest of the Secretary's allegations. Leeco's 

response was supported by the affidavit of Amon Tracey, general superintendent of Mine No. 68. 

Leeco requested that no hearing be held on the Secretary's application. 

Commission Rule 45(c) states, "If no hearing is requested, the Judge assigned to the 

matter shall review immediately the Secretary's application and, if based on the contents thereof 

the Judge determines that the miner's complaint was not frivolously brought, he shall issue 

immediately a written order of temporary reinstatement" (29 C.F.R § 2700.45(c)). 

1884 
THE MINE ACT. THE SECRETARY'S APPLICATION. CAUDILL'S COMPLAINTS 

AND LEECO'S RESPONSE 

The Mine Act specifically protects any miner or representative of miners from discharge 

or other discrimination because the miner or representative has exercised any statutory right 

under the Act (30 U.S.C. § 815(c)). The Commission long has held that a miner seeking to 

establish a prima facie case. of discrimination must prove he or she engaged in p~otected activity 

- that is, in a right protected under the Act - and suffered adverse action as a result (Secretazy 

on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786,2797-2800 (October 1980), 

rev'd on other grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 

(3'd Cir. 1981); and Secretary on behalfofRobinette v. United Coal Co., 3 FMSRHC 803,817-

18 (April 1981)). 

The Secretary alleges that Caudill was designated as a miners' representative on 

October 3, 1997. The Secretary also charges between October 3 and October 24, 1997, Caudill 

was subjected to threats, harassments, demotion and a cut in pay because of his designation, and 

that on October 29, he was discharged for the same reason. 

Brock's declaration amplifies the Secretary's allegations. He states his review of the 

investigative file of Caudill's complaints revealed, among other things, that on or about October 

7, Caudill's designation as miners' representative was posted on the mine bulletin board; that 

around October 7, Caudill's pay was cut from $17.55 per hour to $17.30 per hour with no 

explanation; that on or about the sam~ time Caudill was impliedly threatened with retaliation 

against his son (who also worked for Leeco) and that Caudill's son subsequently was laid off; 

that on October 18, another miner, Tom Brown, was brought to the mine and given Caudill'sjob 

title (second shift maintenance foreman); that on October 20, Brown began acting as though he 

were supervisor instead of Caudill, and on October 20, Caudill was told Brown was his 

supervisor; that on October 20, Leeco officials presented Caudill with forms to sign to give up 

his rights as miners' representative; that on October 23, Caudill was warned in writing he had 

failed to check in before going underground and that the company had received a citation as a 

result, an allegation Caudill denied; that on October 24, Caudill was suspended for five days and 

then was discharged on October 29, allegedly for failing to conduct a required methane check 

and for cursing an employee who inquired why the test was not conducted.

1 

1 Brock's declaration is based on MSHA' s investigation of a series of four discrimination 

complaints filed by Caudill ~etween October 23, 1997, and November 5, 1997. In the first 

complaint Caudill specifically alleged he was threatened, harassed, and demoted "because of 

[his] designation as the representative of miners" (Exh. B 2 (Complaint filed 

October 23, 1997)). In the second complaint he alleged that on October 23, he was given a 

warning for a violation he did not commit - a violation of the federal regulation requiring miners 

to sign in before going underground - and that in a separate incident he was the subject of oral 

harassment by Leeco's safety director (Exh. B 4 (complaint filed October 24, 1997)). In the 

1885 
Leeco's response relies on Tracey's affidavit in which he insisted he discharged Caudill 

because he failed to take a required methane test prior to lighting an acetylene torch 

Wlderground, that he orally abused and threatened a miner who questioned him about his failure, 

and that Tracey "did not want to risk the health and safety of miners . . . by continuing to employ 

a foreman who had blatantly disregarded the safety of the miners working under him by refusing 

to take methane examinations required by law" (Response, Affidavit 2). 

Tracey also stated he attended over 20 interviews ofLeeco employees conducted by 

MSHA during its investigation of Caudill's c~mplaints. During these interviews there was no 

testimony about a foreman making threatening conunents about Caudill's son, or about any 

superintendent circulating a petition asking Caudill be removed as a miners' representative. In 

addition, according to Tracey, there was no testimony that Caudill was demoted for anything 

related to his status as a miners' representative, or that Caudill was coerced in any way to sign a 

form relinquishing his rights as a miners' representative. Further, no one stated Caudill was 

denied access to methane detection equipment or exempted from complying with the regulations 

requiring methane examinations. Finally, Tracy maintained the cut in Caudill's pay was an 

"inadvertent error" unrelated to Caudill's designation as a miners' representative (Response, 

Affidavit 2-4). 

RULING 

The Act states that a complainant shall be immediately reinstated if it is determined the 

complaint "is not frivolously brought" (30 U.S.C. § 815(c)). Echoing the Act, Commission rule 

4 5( c) directs a judge to order a complainant's inunediate reinstatement if the judge concludes the 

miner's complaint was "not frivolously brought" (29 C.F.R. § 2700.45(c)). As I have noted, 

where no hearing is requested, the same rule requires the judge to review the Secretary's 

application ~d to make a determination as to whether the complaint was not frivolously brought 

"based on the contents of the application" (29 C.F.R. § 2700.45(c)). 

The applicable standard for the review requires the Secretary's legal theory, as well as the 

Secretary's factual assertions, to be not frivolous. This means the judge must conclude the 

Secretary's assertions could, iffoWld to be true, support a violation of section 105(c), and that 

there is a "reasonable cause to believe the assertions" or, to put it another way, that the assertions 

are "not clearly without merit" (~Jim Walter Resources. Inc. v. FMSHRC, 920 F2d 738, 747 

(II th Cir. 1990)). 

third complaint he alleged he was suspended on October 24, because he was a miners' 

representative and because he had filed two previous discrimination complaints (Exh. B 6 

(Complaint filed October 27, 1997)). In the fourth complaint, he alleged his pay was cut from 

$17.55 per hour to $17.30 per hour because of complaints he made about the company's failure 

to make safety repairs on eql;lipment (Exh B 8 (Complaint filed November 5, 1997)). 

1886 
Certainly, a miners' representative has a right under the Act to exercise his or her duties 

as a representative free from harassment or intimidation of any kind. Indeed, the Act places so 

much importance on the contributions a representative can make to the improvement of the 

safety and health of the working environment, it specifically protects the representative from 

retaliation for his or her participation (30 U.S.C. § 815(c)(2)). The Secretary's theory of 

discrimination is that Caudill was threatened, harassed, received a cut in pay, was demoted, and 

then terminated because of.his status as a miners' representative and because of the exercise of 

his responsibilities as a ·representative. While the theory ultimately may or may not be sustained, 

it is far from frivolous. Proof of any such treatment because of any such causes would constitute 

a prima facie case of discrimination. 

Further, a review of the Secretary's application easily establishes the complaint was not 

frivolously brought. When a hearing is waived, such a review must accept and treat as fact the 

events alleged in the application.· In other words, for the purpose of this ruling, I must assume 

Caudill was designated the miners' representative on October 3, 1997, a designation ofwhich 

Leece certainly was aware, and that within the next 26 days, his pay was reduced, he was 

demoted, suspended, and terminated. The Commission has observed that although direct 

evidence of discriminatory motivation is rarely encountered, circumstantial evidence of such 

intent may be considered. Among the indicia of intent are knowledge of the protected activity 

and coincidence of time between the protected activity and the adverse action(~ Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508 (November 1981) rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F2d 869 D.C. Cir. 1983)). Leece's knowledge of 

Caudill's designation and the subsequent chronology of adverse action is sufficient to establish 

reasonable cause to believe the Secretary's assei:iion of discrimination and to conclude the 

assertion is not clearly without merit. Accordingly, the application is GRANTED. 

It is worth emphasizing that granting the application has no bearing upon the ultimate 

sufficiency and credibility of the Secretary's and Leece's assertions and defenses ifthe Secretary 

or Caudill subsequently bring a complaint of discrimination. Then, the assertions and defenses 

will be subject to the tests of trial at which the burden will be upon the complainant to prove her 

or his case by a preponderance of the evidence and at which ~e full range of procedural 

protections will be available to Leece. Proof by a preponderance of the evidence is not now 

required because the statutory provision for temporary reinstatement represents Congress's 

judgment that in situations where miners have lost jobs for alleged discriminatory reasons, a 

different, and lower, standard of proof is needed to facilitate reinstatement. 

However, Congress also has recognized that an operator should not bear indefinitely the 

. . burden of reinstatement without having the merits upon which it is based subjected to the 

traditional standard of proof as determined through the full administrative hearing process. For 

this reason, the Act and the Commission's implementing regulations set forth time limits within 

which complaints of discrimination must be investigated and filed (30 U.S.C. § 815(c)(2), 

§ 815(c)(3); 29 C.F.R. § 2700.40, § 2700.41). When temporary reinstatement is awarded, 

fairness requires these limits be strictly observed. 

1887 
OBDER 

For the reasons set forth above, the parties are ORDERED as follows: 

Leeco WILL immediately reinstate Caudill to the position he held at the 

time of his designation as miners' representative on October 3, 1997, and at the 

correct rate of pay for that position, or to a similar position at the same rate of pay 

and with the· same or equivalent duties. 

The Secretary WILL, pursuant to the Act and the Commission's 

regulations, on or before Tuesday, February 3, 1998, make a written 

determination whether or not a violation of section 1 05( c) of the Act has occurred, 

and if she determines a violation has occurred, file a complaint within 30 days of 

the written detennination. If she determines a violation has not occurred, and 

Caudill wishes to pursue a complaint under section 1 05( c )(3) of the Act (30 

U.S.C. § 815(c)(3)), Caudill WILL file a complaint within 30 days of receipt of 

the Secretary's notification. 

If a complaint is not filed within 30 days of the Secretary's written notification or its 

receipt, Caudill's temporary reinstatement will TERMINATE 

Distribution: 

c.-f)QV'~·t'T&~bt?~d~- David Barbour 

Administrative Law Judge 

MaryBeth Bemui, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd., 

Suite B-201, Nashville, 1N 37215 (Certified Mail) 

MarcoM. Rajkovish, Jr., Esq., Wyatt, Tarrant & Combs, Lexington Financial Center, Suite 

1700, 250 W. Main St., Lexington, KY 40507 (Certified Mail) 

Mr. Jerry M. Caudill, General Delivery, Daisy, KY 41733 (Certified Mail) 

Tony Oppegard, Esq., Mine Safety Project/ARDF ofKentucky, .Inc., 630 Maxwelton Court, 

Lexington, KY 40508 (Certified Mail) 

1888 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, 00 80204-3582 

303-844-3993/FAX 303-844-5268 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DEC 1 7 1997 

NEWMONT GOLD COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 97-293-M 

A.C. No. 26-00062-05543 

Genesis 

ORDER OF DISMISSAL 

ORDER DENYING PETITIONER'S MOTION FOR STAY ORDER 

The above-captioned penalty proceeding consists of a petition for assessment of civil 

penalties for four vacated citations. These four citations were vacated and dismissed by the 

presiding Administrative Law Judge in his October 14, 1997, decision in the consolidated contest 

proceeding, 19 FMSHRC 1640 (Oct 1997). All four citations were vacated after a full two day 

contested evidentiary hearing on the merits in Docket Nos. WEST 97-164-RM, 

WEST 97-165-RM, WEST 97-166-RM and WEST 97-167-RM, 19 FMSHRC 1640 (Oct. 1997). 

A few days after the ALJ's October 14, 1997, decision vacating and dismissing the 

citations, the Solicitor on October 20, 1997, filed this Petition for civil penalty for each of the 

four vacated citations. On October 24, 1997, Respondent filed an answer and a motion to 

Dismiss the Secretary's petition of civil penalties for the four vacated citations. Respondent's 

motion for dismissal was based· on the ALJ's October 14, 1997, decision in the consolidated 

contest proceedings WEST 97-164-RM through WEST 97-167-RM, 19 FMSHRC 1640 (Oct 

1997) .. 

In November 1997, the Solicitor filed a written request for additional time to respond to 

Respondent's Motion to Dismiss the present civil penalty proceeding and on December 1, 1997, 

filed a "Motion For Stay of Proceedings" in this case stating that the ALJ's October 14, 1997, 

decision which vacated the four citations in question is now subject of a Petition for 

Discretionary Review. 

1889 
On consideration of this matter I fmd no justification in 1he record before me to grant 

Petitioner's extraordinary motion for a stay of the present proceedings cf W.S. Frey Co., Docket 

Nos. VA 93-59-M eta!., 16 FMSHRC 1591 (Aug. 5, 1994), 1 MSHN 409 (Aug. 12, 1994). The 

Petitioner's motion is denied and the Solicitor's petition for assessment of civil penalty for each 

of four vacated citations in Docket No. WEST 97-293-M is denied. There being no enforcement 

document in this docket other than the four vacated citations, this case is DISMISSED. 

Administrative Law Judge 

Distribution: 

Steven R. DeSmith, Esq., Jan M. Coplick, Esq., Office of the Solicitor, U.S. Department of 

Labor, 71 Stevenson St., Suite Ill 0, San Francisco, CA 94105 

David Farber, Esq., PATION BOGGS, LLP, 2550 M Street, NW, Washington, DC 20037 

Ish 

1890 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES · 

2 SKYLINE, 1Oth FLOOR 

5203 LEESBURG PIKE 

FALLS CHU~CH, VIRGINIA 22041 

DEC 1 7 1997 

LAUREL RUN MINING COMPANY, 

Contestants 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

LAUREL RUN MINING COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINlSTRATION, (MSHA), 

Petitioner 

v. 

ERNIE WOODS, Employed by 

Laurel Run Mining Co., 

Respondent 

1891 

CONTEST PROCEEDINGS 

Docket No. WEVA 94-347-R 

Citation No. 3964761; 8/1194 

Docket No. WEVA 94-348-R 

Order No. 3964762; 8/1/94 

Docket No. WEV A 94-349-R 

Order No. 3964763; 8/1194 

Docket No. WEV A 94-350-R 

Order No. 3964764; 8/1/94 

Holden 20-DB Mine 

Mine ID No. 46-07770 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 96-177 

A. C. No. 46-07770-03575 

Holden 20-DB Mine 

CnnLPENALTYPROCEEDING 

Docket No. WEV A 96-176 

A. C. No. 46-07770-03576A 

Holden 20-DB Mine 
Appearances: 

Before: 

DECISION 

RobertS. Wilson, Esq., Caryl L. Casden, Esq., Office of the Solicitor, 

U.S. Department of Labor, Arlington, Virginia, for the Petitioner; 

David J. Hardy, Esq., William Miller, Esq., Jackson & Kelly, Charleston, 

West Virginia, for the Respondents. 

Judge Feldman 

These consolidated civil penalty and contest proceedings concern a petition for 

assessment of civil penalties filed by the Secretary of Labor against Laurel Run Mining Company 

(Laurel Run) pursuant to section 11 O(a) of the Federal Mine Safety and Health Act of 1977 (the 

Act), 30 U.S.C. ~ 820(a). In these matters, the Secretary also sought, pursuant to sectioP llO(c) 

of the Act, 30 U.S.C. § 820(c), to impose personal liability on Ernie Woods, Laurel Run's 

foreman, alleging that Woods, by his conduct, "knowingly authorized, ordered or carried out" a 

violation of Laurel Run's approved roof control plan. 

The hearing in these matters was conducted in Charleston, West Virginia in June and 

September 1997. The hearing was scheduled to reconvene on December 9, 1997. Shortly before 

reconvening, the parties informed me they had agreed to settle all matters in issue. At the time of 

their settlement, the Secretary had not completed presentation of her direct case. Consistent with 

their agreement, before me for consideration is the Secretary's December 11 , 1997, Motion for 

Approval of Settlement. 

I. Background 

Briefly stated, these proceedings involve citations issued as~ consequence ofMSHA's 

investigation following a fatal roof fall that occurred at Laurel Run's Holden 20-DB Mine on 

Monday, July 25, 1995. The 20-DB site is a hilltop, or outcrop, mine. Hilltop mines are 

underground mines that are located relatively close to the surface. The roof of a hilltop mine is 

prone to surface cracks, also called mud seams. Surface cracks are geological phenomenon in 

rock formations that run from the earth's surface through the rock to the mine roof below. As a 

general rule, surface cracks are exposed in the mine roof as the coal seam is removed. Surface 

cracks are commonly identified by their orange-rust color. This discoloration is caused by 

mineral deposits that, over the course of time, have filtered through the surface cracks in water 

originating on the earth's surface. 

Unlike surface cracks, which are longstanding geological formations, stress cracks are 

acute cracks caused by pressure brought to bear on the mine roof during the mining process. 

Stress cracks can normally be distinguished from surface cracks by their lack of mineial deposit 

color. Although any crack in a mine roof can be hazardous, surface cracks are particularly 

hazardous because they run down from the earth's surface. 

1892 
Surface cracks are random and can run in any direction in the mine roof. Surface cracks 

that travel across entries or crosscuts (perpendicular to ribs) in the same direction as the roof 

bolted straps are less hazardous than surface cracks that run in the same direction as entries and 

crosscuts (parallel to entries or crosscuts). This is because a perpendicular surface crack only 

· compromises the roof area between the surface crack and the closest roof strap. By contrast a 

parallel surface crac~ running in an entry parallel to a rib, removes that rib as a means of roof 

support. Two parallel surface cracks, running parallel to each other in the direction of an entry, 

are extremely hazardous· because they separate the ribs on each side of that entry_from the roof 

of that entry, leaving the roof essentially unsupported. Under the roof control plan in effect at 

the time of the fatality, two or more surface cracks, running parallel to each other in the direction 

of an entry, required supplemental roof supports through cribbing or metal beams. 

The thrust of MSHA' s <..ase is that its investigation following the fatal accident revealed 

sets of two or more parallel surface cracks running in the same direction as entries and crosscuts 

in the vicinity of the fatality and in outby areas, that were not supported by supplemental roof 

supports. Essentially, in their defense, the respondents assert the cracks observed after the fatal 

roof fall were not visible prior to the accident, arguing these cracks were stress cracks rather than 

surface cracks. The respondents also dispute the direction of the cited cracks contending the 

cracks were running across entries rather than in the same direction as entries. Thus, the 

respondents argue that, even if the cracks were properly characterized as surface cracks and 

visible prior to the fatal roof fall, supplemental support was not required under the operable roof 

control plan provisions. 

II. Settlement Terms 

A. Civil Penalty-Liability 

1. Citation No. 3964761, issued pursuant to section 104(d)(l) of the Act, alleges a 

violation of30 C.F.R. § 75.220(a), because the respondents failed to comply with the approved 

roof control plan with respect to installation of supplemental support in instances of two or more 

parallel surface cracks running in the direction of entries or crosscuts. It was determined that the 

cited condition contributed to the fatal accident. Thus, the violation was designated as 

significant and substantial (S&S). Based on MSHA's initial investigation findings, it concluded 

the cited condition was the result of the Laurel Run's reckless disregard of the perceived hazard 

and, thus, constituted aggravated conduct. Consequently, MSHA initially proposed a maximum 

civil penalty of$50,000. 

In support of their settlement agreement, the Secretary now agrees there are mitigating 

circumstances that reduce the degree of Laurel Run's negligence. In this regard, the Secretary 

notes that Laurel Run's witnesses would testify that surface cracks were not visible prior to the 

fatal roof fall. Moreover, although the Secretary continues to believe there were at least two 

parallel surface cracks in the vicinity of the fatality that required additional support under the 

roof control plan, the Secretary acknowledges that her own witness characterized one of the 

1893 . ' 

! 
surface cracks as "hairline." Thus, the Secretary concedes there was a basis for Laurel Run's 

mistaken belief that the surface crack was a stress induced crack that did not invoke the cited roof 

control provision. 

Although the settlement tenns provide that Citation No. 3964761 shall remain as a 

1 04( d)(I) citation involving an unwarrantable failure, the parties have agreed to a reduction in 

the degree of negligence, from reckless disregard to high, that is attributable to Laurel Run. 

Consequently, the parties have agreed to a reduced civil penalty of$25,000.00 for Citation No. 

3964761. 

2. 104(d)(l) Order No. 3964762 alleges a violation of30 C.F.R. § 75.360(a) because 

Laurel Run failed to conduct an adequate preshift examination, in that it failed to detect and 

correct the hazardous roof conditions cited in Citation No. 3964761. MSHA initially determined 

the violation was S&S and attributable to Laurel Run's unwarrantable failure. A civil penalty of 

$25,000 was proposed. 

As discussed above, the uncertainty surrounding the nature and extent of the hazardous 

roof conditions prior to the massive fatal roof fall precludes the Secretary's continued assertion 

of aggravated conduct indicative of an unwarrantable failure. Accordingly, the Secretary has 

agreed to modify 104(d)(l) Order No. 3964762 to a l04(a) citation. The parties have agreed to a 

reduced civil penalty of$6,000 for this citation. 

3. 104(d)(l) Order No. 3964763 alleges a violation of 30 C.F.R. § 75.362(a)(l) due to 

Laurel Run's failure to perform an adequate onshift examination. Consistent with the discussion 

above concerning the preshift violation, MSHA concluded the violation was S&S and 

attributable to Laurel Run's unwarrantable failure. However, in view of the uncertainty 

concerning the degree of visibility of the underlying hazardous r~f condition, the parties 

have agreed to remove the unwarrantable failure charge and, thus, modify l04(d)(l) Order 

No. 3964763 to a 104(a) citation. Consequently, the parties have agreed to a reduced civil 

penalty of $6,000 for this citation. 

4. 104(d)(2) Order No. 3964764 alleges a violation of 30 C.F.R. § 75.202(a) because 

Laurel Run failed to adequately support coal ribs at various locations in the No. 2 section that 

were sloughing and not finnly attached to the roof. The Order alleged the cited condition was 

S&S and attributable to Laurel Run's unwarrantable failure. A civil penalty of$8,000 was 

initially proposed. 

The Secretary anticipates that Laurel Run's witnesses would testify that poor rib 

conditions were not observable prior to the fatal roof control fall. Since the Secretary .cannot 

present evidence concerning the rib conditions prior to the accident, the Secretary has agreed to 

reduce Laurel Run's degree of negligence to low, thus removing the unwarrantable failure 

allegation. 

1894 
Accordingiy, 104(d)(2) Order No. 3964764 is modified to a 104(a) citation. In view of 

the significant reduction in the degree of Laurel Run's negligenCe, the parties have agreed to a 

reduced civil penalty of$500 for this citation. 

B. Section 11 O(c) Liability 

Section 11 0( c) of the Act provides that, whenever a corporate operator violates a 

mandatory safety standard, an agent of the corporate operator who knowingly authorized, 

ordered, or carried out such violation shall be subject to individual liability. In Docket 

No. WEV A 96-176, the Secretary sought to impose personal liability on Ernie Woods for 

"knowingly" failing to comply with Laurel Run's approved roof control plan in violation of the 

mandatory regulatory safety standard in section 75.220(a). Specifically, the Secretary charged 

Woods with failing to ensure that supplemental support was installed for hazardous surface 

cracks as required by the roof control plan provisions. 

The Commission, in Fort Scott Fertilizer, 19 FMSHRC 1511 (September 1997), recently 

summarized the standard of proof in a 110(c) proceeding. The Commission stated: 

To esiablish section 110(c) liability, the Secretary must prove only that an 

individual knowingly acted, not that the individual knowingly violated the law. 

Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United 

States v. Int 'I Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)). An individual 

acts knowingly where he is "in a position to protect employee safety and health 

[and] fails to act on the basis of information that gives him knowledge or reason 

to know ofthe existence of a violative condition." Kenny Richardson, 

3 FMSHRC at 16. Section 11 O(c) liability is predicated on aggravated conduct 

constituting more than ordinary negligence. BethEnergy Mines, Inc., 

14 FMSHRC 1232, 1245 (August 1992)(emphasis added). 19 FMSHRC at 1517. 

Woods was' charged with knowingly violating the roof control plan provisions by failing 

to ensure that hazardous surface cracks were properly supported. lbis violative condition was 

the subject of Citation No. 3964761. However, the settlement terms concerning this citation 

noted the unsupported surface cracks were not obvious enough to warrant a finding of aggravated 

conduct. Consequently, the settlement terms fail to state a 11 0( c) cause of action against Woods. 

As a result, as part of the settlement agreement, the Secretary moves to dismiss the llO(c) action 

brought against Woods in Docket No. WEVA 96-176. 

189.5 
ORDER 

In view of the representations and documentation submitted in this case, 

and I conclude that the proffered settlement is appropriate under the criteria set forth in 

Section II O(i) of the Act. WHEREFORE, the motion for approval of settlement 

IS GRANTED, and IT IS ORDERED that Laurel Rm1 Mining Company pay a total civil 

penalty of$37,500 in satisfaction of the four citations in issue within 30 days of the date of this 

order, and, upon receipt of timely payment, the civil penalty case in Docket No. WEV A 96-177 

IS DISMISSED. . 

IT IS FURTHER ORDERED that the related contest proceedings in Docket 

Nos. WEV A 94-347-R, WEV A 94-348-R, WEV A 94-349-R and WEVA 94-350-R, 

ARE DISMISSED. 

IT IS ALSO ORDERED that the 11 0( c) proceeding concerning Ernie Woods in Docket 

No. WEVA 96-176 IS DISMISSED with prejudice. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

David J. Hardy, Esq., William Miller, Esq., Jackson & Kelly, P.O. Box 553, Charleston, 

WV 25322 (Certified Mail) 

Elizabeth Chamberlin, Esq., Laurel RWl Mining Company, 1800 Washington Road, Pittsburgh, 

PA 15241 (Certified Mail) 

RobertS. Wilson, Esq., Caryl L. Casden, Esq., Office of the Solicitor, U.S. Dept. of Labor, 

4015 Wilson Blvd., Suite 516, Arlington, VA 22203 (Certified Mail) 

\It 

1896 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYUNE, 101h FLOOR 

5203 LEESBURG PIKE 

FAllS CHURCH, VIRGINIA 22041 

DEC 2 3199l 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 97-5 

A. C. No. 11-00601-04045 

Rend Lake Mine 

Appearances: Ruben R. Chapa, Esq., Office of the Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for the Secretary; 

Elizabeth S. Chamberlin, Esq., Consolidation Coal Company, Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Judge Bulluck 

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

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

Consolidation Coal Company ("Consol"), pursuant to section 105 of the Federal Mine Safety and 

Health Act of 1977,30 U.S.C. § 815. The petition seeks civil penalties of$50.00 and $903.00, 

respectively, for alleged violations of a notice to provide safeguard issued pursuant to section 

75.1043, 30 U.S.C. § 75.1403, and section 7S.202(a), 30 U.S.C. § 7S.202(a). 

A hearing was held in Mt. Vernon, Illinois. The parties' post-hearing briefs are of record. 

For the reasons set forth below, the safeguard violation and the WlSUpported roof violation shall 

be aftinned. 

I. Stipulations 

The parties stipulated to the following facts: 

1. The Federal Mine Safety and Health Review Commission bas jurisdiction over this 

proceeding. 

1897 
2. At all times relevant to these proceedings, respondent, Consolidation Coal Company 

(hereinafter, "respondent" or "Consolidation") and the Rend Lake Mine are subject to the 

provisions of the Federal Mine Safety and Health Act of 1977 (hereinafter, the "Act"). 

3. At all times relevant to these proceeqings, respondent owned and operated the Rend 

Lake Mine, a bituminous coal mine located in· Jefferson County, Illinois. 

4. The Administrative Law Judge has jurisdiction of this case pursuant t~ Section 105 of 

the Federal Mine Safety and Health Act of 1977,30 U.S.C. §801 et seq. (1994). 

5. The respondent's mine produced approximately 3,269,017 tons of coal from 

January I, 1995 through December 31 , 1995. 

6. All of the respondent's operations produced approximately 65,431,842 tons of coal 

from January 1, 1995 through December 31, 1995. 

7. The subject citations were properly served by a duly authorized representative of the 

Secretary of Labor upon an agent of Consolidation on the date indicated therein. 

8. The proposed civil penalties in this proceeding will not affect the operator's ability to 

continue in business. 

II. Safeguard Notice No. 3041481 /Citation No. 3839842 

A. Factual Background 

Consol owns and operates the Rend Lake bitwninous coal mine in Jefferson County, 

Illinois. On March 2, 1987, MSHA Inspector Frank Garavalia (deceased at the time of hearing) 

issued Safeguard No. 3041481, pursuant to 30 C.F.R. § 75.1403, citing the following condition: 

A Memco mantrip was parked approximately 3 feet from a line curtain 

(brattice) in the crosscut left off the belt entry at survey Tag No. 7196. Both 

miners and mining equipment could travel through this location. Neither a 

workman, nor a warning sign was stationed on the curtain's blind side indicating 

that the equipment was parked behind the curtain. The mantrip was not visible 

through the curtain. 11lis was observed in the 2oc1 east, 2nc1 left working section. 

This is a notice to provide safeguards requiring that mining equipment be visible 

through a curtain, a workman be stationed on the curtain's blind sign [sic], or a 

warning sign be conspicuously posted on the opposite side of the curtain from_ the 

parked equipment. This safeguard includes all underground areas of this coal 

mine 

(Ex. P-1 ). Section 75.1403 authorizes an MSHA inspector to issue safeguards that, in the 

inspector's judgment, are necessary to minimize hazards with respect to transportation and 

materials. 

1898 
The facts surroWlding the issuance of the contested citation and the alleged violative 

condition cited therein are not in dispute. On July 26, 1996, at 10:55 a.m., MSHA Inspector 

Michael Rennie, accompanied by mine safety representative Rick Shocldy and safety 

committeeman Danny Brown, conducted a Triple A inspection of the Rend Lake Mine (Tr. 76, 

100-1 05). While in5pecting the 2G long wall section of the mine, Inspector Rennie walked 

through a brattice curtain positioned in an adjacent crosscut and came upon the No. 41 scoop 

parked two feet away from. the curtain on its blind side (Tr. 76, 81, 1 06; Ex. J-3). 1 No sign or 

workman was posted to warn of the equipment stationed behind the curtain (Tr. 77_-78, 152). 

Inspector Rennie issued the following 104(a) non-significant and substantial citation, for 

violation of section 75.1403, based on the above-cited Safeguard No. 3041481: 

The No. 41 battery-powered Simmonds Rand scoop was parked 

approximately 2 feet from a ventilation curtain (brattice) in the crosscut right off 

the 2G travelway at survey station 12+80. Neither a workman or a warning sign 

was posted on the travel way side of the curtain. Safeguard Notice No. 3041481 

requires that mining equipment be visible through a curtain, a workman stationed 

on the curtain's blind side, or a warning sign be conspicuously posted on the . 

opposite side of the curtain from the parked equipment. This safeguard includes 

all areas of the WldergroWld coal mine 

(Ex. P-8). 

B. Findings ofFact and Conclusions of Law 

1. Validity of Safeguard 

The seminal issue for resolution is whether Safeguard No.3041481, issued by Inspector 

Frank Garavalia on March 2, 1987, is valid. The Commission has noted that through 

section 314(b) of~e Act, 30 U.S.C. § 874(b), the Secretary, through MSHA inspectors, is 

accorded broad discretion to issue safeguards, without operator consultation, in order "to guard 

against all hazards attendant upon haulage and transport[ ation] in coal mining.'; Southern Ohio 

Coal Co., 14 FMSHRC 1, 8 (January 1992) ("SOCCO II"); Jim Walter Resources, Inc., 

7 ·FMSHRC 493, 496 (April 1985). Safe and unobstructed travel by miners on foot has been 

recognized as falling within the purview of the haulage and transportation hazards that 

safeguards seek to prevent. See Southern Ohio Coal Co., 7 FMSHRC 509, 513 (April1985) 

(SOCCOI). 

1

A "brattice curtain" is a means of ventilation control in a mine, primarily used to direct 

air to the working face areas, by fasteiling the cmtain across the roof of an entry, and for 

maximum direction of airflow, to the adjacent ribs (Tr. 29-31, 71). 

1899 
A notice to provide safeguards is mine-specific, in that an inspector must determine: 

1) that there exists at a mine an actual transportation hazard that is not covered by a mandatory 

standard; 2) that a safeguard is necessary to correct the hazardous condition; and 3) the corrective 

measures that the safeguard should require. 14 FMSHRC at 8. As long as a safeguard is 

premised upon an inspector's evaluation of the specific conditions at a particular mine, that 

· similar unsafe conditions and similar safeguards to address them are present at other mines does 

not invalidate it. Jd at 8, I 0. 

Recognizing the need for an appropriate balance between the Secretary's authority to 

require safeguards additional to mandatory standards and the operator's right to notice of the 

conduct required of him, the Commission has required that a safeguard notice identify with 

specificity the hazard at which it is directed and the conduct required to remedy such hazard. 

7 FMSHRC 512. Therefore, where an operator challenges a safeguard's validity, the Secretary 

bears the burden of proving that the safeguard provided the operator with sufficient notice of the 

nature of the targeted hazard and the remedial conduct required, so as to enable the operator to 

secure prompt and complete abatement. /d.; 14 FMSHRC 13. In interpreting a contested 

safeguard, the Commission has mandated a narrow construction of its terms and intended reach, 

while noting that this approach does not give license to challenges based on pure1y semantical 

arguments. 7 FMSHRC 512; BethenergyMines. Inc., 15 FMSHRC 981,985 (June 1993). 

Consol takes the position that the underlying safeguard is impermissibly vague, in that it 

fails to adequately identify the hazard addressed and, therefore, permits ad hoc discretion in 

interpretation, inspector-by-inspector. Furthermore, Consol argues that the safeguard 

inappropriately encompasses ill mining equipment, rather than mobile equipment (such as the 

parked mantrip cited in the safeguard), it fails to specify the range of distance within the curtain 

that triggers the "warning" requirements, and it does not specify whether it is protecting miners 

traveling on qtobile equipment or on foot (R. br. 5-9). In support of this position, Consol 

references MSHA bulletins and accident reportS dealing with injuries resulting from moving 

equipment running-into parked equipment (Exs. P-2, P-3 and P-4), and other safeguards within 

District 8 mines, many of which specify permissible distances between parked transportation 

equipment and brattice curtains (generally, twenty-five feet) (Ex. R-9V 

Arguing the validity of the safeguard at issue, the Secretary takes the position that, on its 

face, the safeguard demonstrates the existence of a condition at the Rend Lake Mine that created 

a transportation hazard, and that it is specific in identifying both the hazard and the conduct 

necessary to remedy such hazard. Moreover, the Secretary asserts that the targeted transportation 

hazard applies to mining equipment traveling through curtains that could collide with any parked 

equipment, as well as miners traveling 1hrough curtains by foot who could bump into parked 

equipment and sustain injury (P. br. at 7-16). 

2/ The Secretary's Motion to Strike Respondent's Attachment to Post-Hearing Brief 

(17 similar safeguards issued to other District 8 mines) was denied during teleconference with 

the parties on October 31, 1997, and the record was reopened for admission of the documents. 

1900 
As inspection supervisor in the Benton, Illinois field office, MSHA Inspector Steven 

Kattenbraker testified that he tionnally reviewed safeguards isSued from his office to ensure that 

they accurately described the behavior that is expected of the operators (Tr. 15-18). Although he 

was W18ble to recall whether he had specifically discussed the safeguard at issue with Inspector 

Garavalia, Inspector Kattenbraker testified that due to a 1980 fatality, MSHA had placed 

emphasis on eliminating injuries caused by the transportation hazard of parking vehicles behind 

curtains (Tr. 19-24, 47-49; .see Ex. P-2, January 23, 1980, notice by MSHA District 8 Manager to 

District 8 mine operators, alerting them to a recent fatality caused by the collision of a shuttle car 

traveling through a curtain with a continuous mining machine parked behind the curtain; see also 

Ex. P-3, MSHA Program Informational Bulletin No. 84-16C addressing underground haulage 

accidents). The record establishes that this fatality occurred at Consol's Hillsboro Mine, located 

in Coffeen, Montgomery County, Illinois, part ofMSHA's District 8 (Ex. P-4; Tr. 41-42). 

Inspector Kattenbraker offered his opinion that rui mining equipment parked behind a curtain 

poses the hazard targeted by the safeguard, that twenty-five feet is standard in most other 

safeguards as a safe distance between parked equipment and brattice curtain, and that while he 

would prefer that the instant safeguard specify a safe distance, it, nevertheless, puts the operator 

on notice that the equipment should be parked at a distance from a curtain that allows clear 

visibility of the equipment to the vehicle or person traveling through the curtain (fr. 51-55,59-

60). 

Inspector Michael Rennie testified that the instant safeguard gives the operator adequate 

notice of how far to station mine equipment behind curtains, because the mine operator is 

imputed to have a working knowledge of his equipment, including size and length, and is held 

responsible for making appropriate judgments as to the distance necessary for safe clearance of 

mine equipment traveling through its curtains (Tr. 139, 142, 144, 147). He explained that, due to 

the equipment size and the operator's location on the equipment, several feet of the equipment 

may travel through a curtain before the operator passes through and is able to see the parked 

equipment on the other side (Tr. 131 ). Therefore, Inspector Rennie is of the opinion that, while 

MSHA regards twenty to twenty-five feet as a safe parking distance, based on the size and length 

of most mining equipment, some discretion is required of the mine operator, as well as the 

inspector who evaluates the condition (fr. 139-140). 

The condition at the mine for which the underlying citation was issued is not a matter in 

controversy. Based on MSHA's emphasis on eliminating accidents caused by mining equipment 

parked behind brattice curtain, and on Inspector Garavalia' s observation that the mantrip was not 

visible through the curtain and was parked three feet behind it, it was within his discretion to 

conclude that a transportation hazard existed at the Rend Lake mine, and that a safeguard notice 

was necessary to correct the hazard. A narrow reading of the safeguard provides the operator 

with sufficient notice of the hazardous condition to be prevented: parking mining equipment 

behind a curtain through which such equipment cannot be seen from the blind side, without 

posting a workman or a warning sign. Implicit in its language, based upon the cited condition, is 

that both miners traveling on foot and on equipment could travel through a cwtain, and where the 

hazardous condition exists, sustain injuries. Although the instant safeguard is silent as to a 

1901 
specific distance that equipment may be stationed safely behind a curtain, the Commission has 

held that an operator was given fair notice of the requirements of a safeguard where its language 

included interpretive terms. U.S. Steel Mining Co., Inc., 15 FMSHRC 2445, 2448 (December 

1993). In this case, the word "parked" is used in a context that puts the operator on notice that 

any distance between a non see-through curtain and stationary mining equipment that does not 

permit safe travel through the curtain's blind side (a clear view of equipment on the back side) by 

miners on foot and oper~ting mining equipment, shall require corrective measures. Therefore, I 

reject Consol's arguments that the safeguard is vague, find that Consol was given adequate 

notice of the targeted hazard and the corrective measures required, and, therefore, conclude that 

the safeguard was validly issued. 

2. Fact of Violation 

The subject safeguard requires that parked mining equipment be visible through a curtain, 

or where it is not visible, a workman be stationed on the curtain's blind side or a warning sign be 

conspicuously posted on the opposite side from the parked equipment. Because it is clearly 

reasonable to consider equipment stationed a distance of two feet from a curtain to be "parked," 

it is curious that Consol uses the instant citation to challenge the validity of the underlying 

safeguard. 

Jn applying the requirements of the safeguard to the uncontroverted facts of this case, the 

evidence establishes that only cap lighting was available in the cited passageway, visibility was 

not possible through the solid curtain, no workman or sign was posted, and as the inspection 

party walked through the curtain, Inspector Rennie and Dan Brown almost bumped into the 

scoop parked two feet from the curtain (Tr. 77-79, 81, 106, 108, 151-153; Exs. P-8, P-9, J-2). 

Accordingly, the Secretary has met her burden of proving that the safeguard was violated by the 

cited conditions. 

3. Civil Penalty 

While the Secretary has proposed a civil penalty of$50.00, the judge must independently 

determine the appropriate assessment by proper consideration of the six penalty criteria set forth 

in section llO(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Stone Co., 5 FMSijRC 287, 

291-292 (March 1993), affd, 763 F.2d 1147 (T" Cir. 1984). 

Consol is a large operator, with an insignificant history of prior violations, including two 

prior violations of the subject safeguard within three months of the instant citation (Ex. P-5).3 

The Secretary did not allege, nor does the record reflect, that its violations history is an 

aggravating factor that provides a basis for raising the penalty. As stipulated, the proposed civil 

penalty will not affect Consol's ability to continue in business. 

3

/ Inasmuch as the Secretary has failed to provided the most current data of violations 

(July 1992 to June 1994 provided, rather than July 1994 to July 1996), Consol' s history of 

previous violations is construed in the light m~st favorable to the operator (See Ex. P-7). 

190 2 . 
The remaining criteria involve consideration of the gravity of the violation and the 

negligence ofConsol in causing it. I find the gravity of the vioiation to be serious, since the 

potential for grave injuries to miners, including death, caused by collisions of equipment and of 

persons and equipment, is well documented by the record. Consideration that Consol had been 

cited for similar violations within three months of the instant citation persuades me that Consol 

appreciated the nature of the hazard and, consequently, leads me to ascribe moderate negligence 

to Consol. Therefore, having considered Consol's large size, insignificant history of prior 

violations, seriousness ofthe violation, good faith abatement and moderate degr~ of negligence, 

I find that the $50.00 penalty proposed by the Secretary is appropriate. 

III. Citation No. 4265333 

A. Factual Background 

On July 18, 1996, at approximately 12:15 a.m. during the midnight shift, MSHA 

Inspector Michael Pike, accompanied by foreman Victor Sauerhage and walkaround 

representative/safety committeeman Melvin Filkins, entered the mine by the Nason portal in 

order to conduct a CCA inspection (6 month roof control review), which would entail checking 

entries, intersection widths, bolt spacing, observing bolt installation, and ensuring compliance 

with the roof control plan (T r. 161-162). The inspection party began travel by scooter (personnel 

carrier) on the main east travelway to the opposite side of the mine, fifty to one hundred feet 

behind a scooter transporting pumpers Robert Carpenter and Dewey O'Daniel to the location of 

their tools (Tr. 167, 241-243).4 As the pumpers approached the No. 96-97 crosscut, they 

observed on the roadway "some rock and top coal" that had fallen out from around a roof bolt, 

causing them to stop in the middle of the travelway about twenty-five feet from the fallen rock 

and observe the roof (Tr. 164, 223, 241, 243-244, 246, 257-258). Inspector Pike, foreman 

Sauerhage and walkaround representative Filkins stopped moments later behind the pumpers, 

who informed Pike and Filkins of the roof condition (Tr. 164, 241, 243). Inspector Pike, 

accompanied by Filkins, examined the roof in the area identified by the pumpers (Tr. 164,213-

214, 218-219), then informed Sauerhage that ''the road was going to be closed and the rock 

cleaned up until they got it all bolted" (Tr. 241,246-247, 258). Sauerhage rerouted the pumpers 

by directing them to walk along the belt line (a parallel entry) to collect their tools (Tr. 241-242, 

249), called for midnight shift foreman Robert Pigg to come to the area (Tr. 258-259, 286), and 

sent for the diesel roof bolter to come immediately from the west (Sesser) side of the mine 

(Tr. 261, 287). While Sauerhage was calling for the midnight shift foreman and the roof bolter, 

Inspector Pike stationed himself in the travel way and prevented all persons, including workers on 

overtime, from entering the area between the 96-97 crosscut, by detouring them around the area 

to the belt line (Tr. 164-165,259, 293). Shift foreman Pigg flagged-off the area with orange 

reflector tape, and had supplemental roof bolts installed in accordance with legal requirements 

(Tr. 166, 293-294). No persons other than the roof bolters were permitted to work or travel in 

the affected area until the supplemental roof support was installed (Tr. 311 ). 

4/ A "pumper" pumps water out of a mine by use of a stationary pump (Tr. 167). 

1903 
Inspector Pike issued section 104(a), non-significant and substantial Citation 

No. 4265533, describing the violation of section 75.202(a) as follows: 

. An area of inadequate supported mine roofapp. 45 feet in length and 

20 feet wide was present between the No. 96 and 97 crosscut on the main east 

travel way. People are required to work and travel this area 

(Ex. P-10V 

B. Findings of Fact and Conclusions of Law 

1. Fact ofViolation 

Section 75.202(a) is a broadly wrinen standard, designed to protect miners from "any 

roof, face or rib hazards, as well as hazards associated with coal or rocks bursts, in areas where 

they may travel, by supporting or controlling the roof, face or ribs." Jim Walrer Resources, inc., 

16 FMSHRC 4 56 at 4 77, 4 78 (February 1994) (ALJ). The Commission has required liability 

under the standard to be subjected to the consideration of whether a reasonably prudent person, 

familiar with the mining industry and the protective purpose of the standard, would have 

recognized that the roof or ribs were not adequately supported or otherwise controlle~. Jd. 

at 479. By application of the reasonably prudent person test, the Commission has held an 

operator in violation of the standard, notwithstanding the operator's compliance with its 

approved roof control plan. ld. at 478-479. Moreover, as required by the very language of the 

standard, the Commission has required the Secretary to prove that the cited area was one "where 

persons work or travel," under normal circumstances. Cyprus Empire Corp., 12 FMSHRC 911, 

917 (May 1990). 

It is well recognized, as the Secretary points out, that roof falls pose one ofthe most 

serious hazards in the coal mining industry. United Mine Workers of America v. Dole, 870 F.2d 

662, 669 (D.C. Cir. 1989). The Commission has noted the inherently dangerous nature of mine 

roofs, and attributed the leading cause of death in underground mines to roof falls. 

Consolidation Coal Co., 6 FMSHRC 34, 37 (January 1984); Eastover Mining Co., 4 FMSHRC 

1207, 1211 ~d n.8 (July 1982);.Halfway Incorporated, 8 FMSHRC 8, 13 (January 1986). 

Consol argues that the Secretary has not proven a violation of section 75.202(a) since the 

cited area bad been supported in accordance with the approved roof control plan, a pre-shift 

examination had assessed the area as safe for travel, and upon discovery of the unstable roof, the 

area was flagged-off and miners were prevented from travel or work therein, until additional roof 

support was installed (R. br. at 12, 13). 

s/30 C.F.R. § 75.202(a) provides that: The roof, face, and ribs of areas where persons 

work or travel shall be supported or otherwise controlled to protect persons from hazards related 

to falls of the root: face or ribs and coal or rock bursts. 

1904 
The Secretary contends that the evidence supports Inspector Pike's conclusion that the 

roof was failing, that the Rend Lake Mine has a history of roof falls and problems with 

inadequately supported roof areas, and that miners worked and/or traveled in the cited area 

(P. br. at 16-18). 

Inspector Michael Pike, employed by MSHA for approximately 11 years, has been a roof 

control specialist since 1993 (Tr. 158-159, 161). He testified that he reviewed the mine's 

violation history prior to conducting the inspection, went down into the mine with the midnight 

shift, began travel with the inspection team to the other side of the mine, and shortly thereafter 

carne upon the pwnpers at the cited area (Tr. 162, 164). Inspector Pike discussed the roof 

condition which he observed in the following testimony: 

Q. Now, please describe the condition which led--led you to issue the citation. 

A. The mine roof had fallen from around the roof bolt that had been installed. I 

checked it. While we was sitting there, I noticed on both ribs the thing had been 

working and was flaking out.. .. Mr. Filkins and Mr. Sauerhage was there with me. 

I inspected the top. The top started working and bwnping. I told Victor 

[Sauerhage] they needed to get somebody up there and start doing something with 

it--the mine roof would probably faiL Victor informed me that he would go back, 

call Mr. Pigg, get somebody up there to look at the condition. While we was 

sitting there, a crack appeared in the mine roof, which ran from one corner to the 

other. It started working in the crosscuts offthe side of the intersection. That this 

area was closed up, due to the hazard that it presented to people traveling in the 

area (Tr. 164-165). 

• •••• 

Q. Let's talk about "working." When you say the word, what do you mean by 

that? 

A. What the top was doing was flaking out between the ribs and the roof on both 

rib lines (Tr. 169). 

• •••• 

Q. When you talk about ribs, you mean the sides? 

A. Yes, sir,just like this room. This--the walls here would be a rib. The ceiling 

would be your roof. And it would come approximately a foot from your rib out 

into the mine roof, and it was working. The coal was working. It would rome out 

to approximately ten feet from the corner of the crosscut, back into the main line 

1905 
entry on both sides. The top, when I say it was bwnping, it thumped where the mine roof was 

cracking. And there was a crack that went from one comer to the other comer of the rib on it 

(Tr. 169). 

• •••• 

The Court: Is [sicJ working and bwnping the same? Working's flaking? 

A. Working is the flaking part of it. Bumping is where your mine roof, itself, is 

cracking, and you can hear it. It didn't do it all the time, but it--it bumped three or 

four times there. 

Q. Is that a sign of anything? 

A. Yes, sir. It's a sign of roof failure. 

The Court: When a roof fails, is there always bumping and working before it fails? 

A. No, ma'am, not all the time. 

The Court: So one would hope that they get this warning. 

A. Yes, sir--yes, rna 'am (Tr. I 70). 

Q. Let's go back now to--you said there was--there was a roof bolt that was loose 

when you observed it? 

A. There was a roof bolt on the right-hand side going in where the mine roof had 

fell from around it. A rock had fallen down there, and that's what stopped the 

pumpers from going in. 

Q. What do you mean by the bolt was loose? 

A. You-you take a roofbolt, and you bolt it tight to the roof. And what had 

happened: the mine roof had fallen from around the bolt hanging there. 

Approximately a foot, a foot and a half of it was hanging where there was no mine 

roof, and the bolt was not intact with the surface. So the bolt was not-had its 

bearing surface to support the mine roof there. And just like I told Mr. Pigg, ifl 

had come up there and just the bolt by itself was the only indication that I seen 

that it was just hanging there, I would inform them to put-install a bolt. And a 

citation would not have been issued. But in this instance where the mine roof was 

flaking, and working, and while we was there, fell around another bolt, in my 

opinion, through mining. This warranted a violation. And the top needed to be 

1906 
adequately supported. I investigated the roof, and there was approximately 

45 feet in length of the area that was working and where it had flaked. I had went 

plumb through the intersection all the way across and wa5 flaking over there on 

that side. And the entry width was approximately 20 feet wide, so this covered a 

pretty wide area, where if it was just the bolt, we could have flagged it, let the 

people wen~ [sic] around the belt · 

(fr. 173-175). 

· Walkaround representative Melvin Filkins, a rock dust motorman, has worked at the 

Rend Lake Mine in excess of twenty-six years (Tr. 212). Filkins described the roof condition 

which he had observed in the following testimony: 

Q. Please describe the condition you observed, which was the cause for that citation. 

A. There was two or three roof bolts hanging down more than the other ones was, and 

there was some flaking off of the roof. And it was wet bottoms there, hitting the bottoms, 

and working on the rib line. 

Q. Are these typical conditions you see at the Rend Lake mine? 

A. No, sir (Tr. 213-214). 

• •••• 

Q. Was the roof working, based on your observation? 

A. I~ was flaking off and working along--along the rib line (fr. 219) . 

••••• 

The Court: Mr. Filkins, were you alanned by what you saw? 

A. Yeah. It wasn't a good situation. Needed to be corrected 

(fr. 238). 

Pumper Robert Carpenter, who has been employed at the Rend Lake Mine in excess of 

eighteen years (fr. 240), testified that he and fellow pumper Dewey O'Daniel had stopped their 

scooter twenty-five feet or so of where some rock and top coal had already "fallen out" onto the 

main east travelway (Tr. 241,243, 244). 

Foreman Victor Sauerhage, involved in the mining industry since 1974 and employed at 

the Rend Lake Mine since 1987 (fr. 255), testified to observing "a small amount of rock in the 

roadway,, but that he did not go to the area and examine the roof condition himself (fr. 262-

263). 

1907 
Shift foreman Robert Pigg testified that around 12:20 to 12:30 a.m., while at the Nason 

bottom, he was summoned by foreman Sauerhage to the cited area (Tr. 286). He testified that 

upon his immediate arrival at the area, he observed a loose bolt on the north rib and a pile of rock 

over a three to four foot area, and Inspector Pike informed him of the roof conditions that be had 

observed (Tr. 287, 289). Foreman Pigg then explained that he conducted his own inspection of 

the area from the front and behind from the belt entry, since Inspector Pike would not permit him . 

to travel through the area, but that he failed to hear any bwnping, see any cracking or flaking, or 

any other signs of the intersection working (Tr. 288-289,291,293-294, 314). While he stated 

that he did notice some stress cracks, he concluded that they were common to the mine and did 

not appear to be indicative of recent working; it was his opinion that the condition did not 

indicate that the roof was about to fall (Tr. 293, 295). · 

It is clear from the record that only Inspector Pike and walkaround representative Filkins 

actually went under the area and investigated the roof condition (Tr. 218). Filkins, a long time 

miner at Rend Lake and familiar with the history and conditions in the mine, corroborated 

Inspector Pike's testimony, and therefore, I credit their statements as an accurate depiction ofthe 

cited roof condition. Accordingly, I find that the roof was unstable, in that it was working and 

bumping to a degree that signaled roof failure. 

ln applying the reasonably prudent person test to the facts of this case, it is necessary to 

resolve the length of time that the unstable roof condition existed. I credit Inspector Pike as 

knowle9geable in the field of roof control, having conducted hundreds of roof inspections 

during his tenure with MSHA (Tr. 158~ 161 ). He testified that, based on the cracks and the size 

of the rock pile stacked along the ribs, the condition had not l1ill occurred (Tr. 206). The record 

establishes that the pre-shift examination was conducted by Fred Baker between the hours of 

9:00 and ll :00 p.m., and that he probably traveled through the main east travelway and 

proceeded to t~e Nason bottom to record his entries in the examiner's book somewhere between 

10:30 and II :00 p.m. (Tr. 282-283,286, 312-313). Shift foreman Pigg testified that examiner 

Baker only reported .the main east travel way to be rough and muddy in a couple of places 

(Tr. 277). While not calling into question the qualifications of examiner Baker, based on 

Inspector Pike's expertise and observations, I credit the inspector's opinion that the roof had 

been working for some time in advance of the pumpers discovering the fallen rock, and conclude, 

therefore, that a reasonably prudent person would have detected signs of the failing roof during 

the pre-shift examination. I pote that the best evidence of the roof condition at the time of the 

pre-shift examination would have come from Fred Baker, himself, but that he was not called to 

k~~ . 

The record is equally clear that the cited area is one in which miners routinely worked 

and traveled. Walkaround representative Filkins testified that the main east travelway was 

frequently traveled on a daily basis by men and equipment (Tr. 214-216). Foreman Sauerhage 

testified that, since another side of the mine had opened up, the main east travelway was just a 

way of getting from one side of the mine to the other (Tr. 265-268). Shift foreman Pigg testified 

1908 
area, parts runner-s from the Sesser side delivering parts to Nason sections, examiners on their 

routes, the general underground foremen, as well as he, himself, would be traveling the main east 

travelway (Tr. 298-299). Pwnper Carpenter testified that the main east travelway is a busy 

thoroughfare (Tr. 242). As the Secretary has correctly pointed out in her brief, the precedent 

relied upon by Consol, Energy West Mining Co., 18 FMSHRC 1628 (September 1996) (ALJ); 

Cyprus Empire Corp., 12 FMSHRC 911 (May 1990); and Utah Fuel Co., 18 FMSHRC 1469 

(August 1996) (ALJ), is distinguishable from the instant case, as those cases involve 

circwnstances in which operators had taken prior measures to address dangerous r<;><>f conditions, 

and in Cyprus and Utah Fuel, no persons were found to have worked or traveled in the affected 

areas (R. br. At 9-11; P. br. at 19-20). While in this case, it is undisputed that, upon discovery of 

the condition, Inspector Pike prohibited work and travel through the affected area and had it 

flagged-off until supplemental roof support was installed, it has also been established that the 

pwnpers and overtime workers were on thei1 way into the area (Tr. 164, 204-205). The pumpers 

had no official warning, and but for' the good fortune of having encountered the fallen rock, they 

might have suffered serious injury. Consol's argument that the pwnpers were in a position to 

warn others of the danger does not address the operator's affinnative duty to have provided 

warning to the pwnpers, as well as to the persons who were, subsequently, to travel to the area. 

Any such interpretation of Li-)e duty required by the standard would leave the envisioned 

protection to the discretion of individuals who do not necessarily bear that responsibility. 

Accordingly, having found that the roof was unstable, that a reasonably prudent person should 

have detected these signs of roof failure during the pre-shift inspection, and that miners traveled 

and worked in the area, I conclude that Consol violated section 75.202(a) by failure to take 

adequate measures to protect persons from hazards related to roof fall. 

2. Significant and Substantial 

Section 1 04( d)( I) of the Mine Act designates a violation S&S when it is "of such a nature 

as could significantly and substantially contribute to the cause and effect of a coal or other mine 

safety or health hazard." A violation is properly designated S&S "if, based upon the particular 

facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious nature." Cement Division, National 

Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ). 

In Mathies Coal Co., 6 .FMSHRC 1, 3-4 (January 1984), the Commission set forth the 

four criteria the Secretary must establish in order to prove that a violation is S&S under National 

Gypsum: 1 )the underlying violation of a mandatory safety standard; 2) a discrete safety hazardthat is, a measure of danger to safety-contributed to by the violation; 3) a reasonable. likelihood 

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

injury in question will be of a reasonably serious nature. See also Buck Creek Coal, Inc. v. 

FMSHRC, 52 F. 3d 133, 135 (Th Cir. 1995); Austin Power, Inc., v. Secretary, 861 F. 2d 99, 103-

104 (5111 Cir. 1988), affg 9 FMSHRC 2015,2021 (December 1987) (approving Mathies criteria). 

Evaluation of the third criterio~ the reasonable likelihood of injury, should be made in the 

1909 
context of"continued normal mining operations." U.S Steel Mining Co., 6 FMSHRC 1573, 

1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based "on the 

particular facts surrounding the violation." Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). 

Inspector Pike testified on behalf of the Secretary that he determined the reasonable 

likelihood of someone getting injured or kill~d based upon "the mine roof working, and the crack 

in it had already filled out from around some bolts and cutting down the ribline," as well as the 

fact that most fatalities ate caused by roof falls (Tr. 177-179). He also gave unrefuted testimony 

that the roof had required use often-foot bolts for supplemental support, due to breaks found in 

the roof strata as high as seven feet (T r. 178-179). In his opinion, then, his conclusion that 

someone would have been killed if the roof had fallen had been a reasonable one, despite the fact 

that most vehicles that traveled the roadway had canopies (See Tr. 171-172, 192-197). 

The Secretary is not required to prove that miners were actually exposed to the roof 

hazard at the time of the inspection, as long as it is shown that a miner could be at risk during the 

course of normal mining operations. See Consolidation Coal Co., 15 FMSHRC 214 (February 

1993) (ALJ) (citing 8 FMSHRC 12). In that context, the evidence indicates that rock was· falling 

during the inspection, at least the pwnpers and overtime workers would have traveled through 

the affected area, and the pumpers conceivably could have worked in the wet travelway where a 

permanentpumpwaslocated(Tr.164-165, 172-173,175, 195-196,260). Consequently, based 

on the evidence, I find that there was a reasonable likelihood that a roof fall contributed to by the 

unstable roof would result in serious injury, including death, to the pumpers and/or the overtime 

workers. Accordingly, I find that the violation was S&S. 

3. Civil Penalty 

Addressing the six penalty criteria set forth in section 11 O(i), as discussed above, Consol 

is a large operator,.with an insignificant history of prior violations, and the parties have stipulated 

that the proposed ci~il penalty of$903.00 will not affect Consol's ability to continue in business. 

Respecting consideration of the gravity criteria, I find the violation to be serious, in that 

the potential injury to a miner traveling or working in the area ranges from cuts, bruises, broken 

bones to death. Shift foreman Pigg's assessment as to the "normalcy" of the cited roof condition 

(Tr. 165-166, 295), despite the Rend Lake Mine's prior history of unstable roof and roof falls 

(Tr. 191-192, 217,221, 225-226, 227-228, 230-232), when combined with the indication, based 

on the totality of the evidence, that tangible signs of the unstable roof existed at the time of the 

pre-shift inspection, suggests a certain degree of complacency on the part ofConsol. However, 

based upon Consol' s immediate and appropriate abatement of the condition, I attribute moderate 

negligence to Consol. Consequently, having considered Consol's large size, insignificant history 

of prior violations, seriousness of the violation, good faith abatement and moderate degree of 

negligence, I find that a civil penalty of$903.00 is appropriate. 

1910 
ORDER 

Accordingly, Citations No. 3839842 and 4265333 are AFFIRMED, and Consol is 

ORDERED TO PAY civil penalties of$953.00 within 30 days ofthe date ofthis decision. On 

receipt of payment, this proceeding is DISMISSED. 

Distribution: 

()>w&-R.~ ~lineR. Bulluck 

Administrative Law Judge 

Ruben R. Chapa, Esq., Office of the Solicitor, U.S. Department ofLabor, 230 South Dearborn 

Street, 81h Floor, Chicago, II 60604 (Certified Mail) 

Elizabeth Chamberlin, Esq., CONSOL, Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, 

PA 15241-1421 (Certified Mail) 

dcp 

1911 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYUNE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

DEC 2 9 1997 

EMPIRE IRON MINING PARTNERSHIP, : CONTEST PROCEEDINGS 

Contestant 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

Docket No. LAKE 97-37-RM 

Order No. 4537189; 1/21197 

Docket No. LAKE 97·38-RM 

Order No. 4537190; 1/21/97 

Docket No. LAKE 97-39-RM 

Order No. 4537216; 2112/97 

Docket No. LAKE 97-53-RM 

Order No. 4537285; 3/ 10/97 

Mine ID 20-01012 

Empire Mine 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 97-4l·M 

A.C. No. 20-01012-05618 

Docket No. LAKE 97-47-M 

EMPIRE IRON MINING PARTNERSHIP, : A.C. No. 20-01012-05616 

Respondent 

Docket No. LAKE 97-50-M 

A.C. No. 20-01012-05620 

Docket No. LAKE 97-51-M 

A.C. No. 20-01012-05621 

Docket No. LAKE 97-69-M 

A.C. No. 20-01012-05625 

Empire Mine 

1912 
DECISION 

Appearances: Christine M. Kassak Smith, Esq., Office of the Solicitor, U.S. Department of 

Labor, Chicago, Illinois, and Thomas J. Pavia~ Conference and Litigation 

Representative, Mine Safety and Health Administration, U.S. Department of 

Labor, Peru, Illinois. for Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., Pittsburgh, Penns¥lvania, for 

Respondent. 

Before: Judge Hodgdon 

These consolidated cases are before me on Notices of Contest and Petitions for 

Assessment of Civil Penalty filed by Empire Iron Mining Partnership against the Secretary of 

Labor, and by the Secretary of Labor, acting through her Mine Safety and Health Administration 

(f0SHA ), against Empire, respectively, pursuant to section 1 05 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815. The company contests the issuance to it of two orders and 

two citations. The Secretary's petitions allege nine violations of the Secretary's mandatory 

health and safety standards and seek penalties of$10,054.00. For the reasons set forth below, l 

approve the parties' settlement agreement, affirm one contested order, vacate three contested 

citations and assess penalties of$5,122.00. 

A hearing was held on September 3 and 4, 1997, in Marquette, Michigan. The parties 

also submitted post-hearing briefs in the cases. 

Settled orders and citations 

At the beginning of the hearing, counsel for the Secretary announced that the parties had 

settled all bl;lt four of the violations. As part of the agreement, the Secretary mQved to vacate 

Citation No. 4537051 in Docket No. LAKE 97-47-M and Citation No. 4537206 in Docket No. 

LAKE 97-51 -M and the motion was granted. (Trl. 14-15.)1 The parties agreed to reduce the 

penalty for Citation Nos. 4537187 and 4537188 and Order Nos. 4537189 and 4537190 in Docket 

No. LAKE 97-50-M, which orders were contested in Docket Nos. LAKE 97-37-RM and LAKE 

97-38-RM, from $7,448.00 to $3,724.00. (Trl. 15-16.) The parties also agreed to modify Order 

No. 4537047 in Docket No. LAKE 97-47-M by deleting the "significant and substantial" 

designation and to reduce the penalty from $382.00 to $100.00. (Trl. 16.) 

1 A separate transcrip~ beginning with page 1, was prepared for each day of the hearing. 

In this decision, the transcript for September 3 will be referred to as "Trl." and the transcript for 

September 4 will be referred to as "Trll." 

1913 
After considering the parties' representations, I concluded that the settlements were 

appropriate under the criteria set forth in section llO(i) of the Act, 30 U.S.C. § 820(i), and 

informed the parties that I would approve the agreement. (Tri. 17.) The provisions of the 

agreement will be carried out in the order at the end of this decision. 

Citation No. 4537093 in Docket No. LAKE 97-41-M, Order No. 4537055 in Docket 

No. LAKE 97-47-M and Citation Nos. 4537216 and 4537285 in Docket Nos. LAKE 97-39-RM, 

LAKE 97-53-RM and LAKE 97-69-M were contested at the hearing. The order.and citations 

were tried at the hearing and will be discussed in this decision in the following order: Order 

No. 4537055, Citation No. 4537216, Citation No. 4537093 and Citation No. 4537285. 

Contested Matters 

Order No. 4537055, Docket No. LAKE 97-47-M 

Order No. 4537055 alleges a violation of section 56.14100(b), 30 C.F.R. § 56.14100(b), 

of the Secretary's regulations. That regulation requires that: "Defects on any equipment, 

machinery, and tools that affect safety shall be corrected in a timely manner to prevent the 

creation of a hazard to persons." The machinery at issue in this order is a metal shear used to cut 

metal plate of various sizes. The parties stipulated that Larry Smith incurred a lost time back 

injury in an accident that occurred while operating a Pacific metal shear in the fabricating shop 

on September 1 0, 1996, and that Marvin Swanson had previously reported back soreness on 

August 29, 1996, resulting from an incident with the same machine on August 28, 1996. 

(Tri. 30-31.) 

An injury report for the September I 0 injury was filed with MSHA on September 23, 

1997. Inspector Dominic Vilona conducted an investigation of the incident during a regular 

inspection of the mine on December 12, 1997. As a result of his Investigation, he issued Order 

No. 4537055. He found that: 

(Govt. Ex. 3.) 

The restricted duty back injury that occurred on 9-l 0-96 

was directly related to a defect on the Pacific Metal Shear, serial 

S 1 0902, located in the fabricating shop. The table of the shear is 

provided with 17 air operated balls which assist the machine 

operator when pushing steel in the shear. Larry Smith was trying 

to feed a 12 foot long, 6 foot wide by 3/4 inch thick plate into the 

shear with the help of his partner, Gary Waterman. This is when 

Larry injured his back. At least 8 out of 17 balls were reported 

inoperative on 8-28-96 when another employee strained his back 

performing the same work. Foreman Rich Hill engaged in 

aggravated conduct constituting more than ordinary negligence in 

that he was aware that their [sic] was a problem with the feed assist 

balls and that employees were operating this machine. 

1914 
In discussing the predecessor to this regulation? the Commission held that "it is 

appropriate to evaluate the evidence in light of what a 'reasonably prudent perso~ familiar with 

the mining industry and the protective purpose of the standard, would have provided in order to 

meet the protection intended by the standard.' See, e.g., Canon Coal Co., 9 FMSHRC 667, 668 

(April 1987); Quinland Coal, Inc., 9 FMSHRC 1614, 1617-18 (September 1987). n . Ideal Cement 

Co., 12 FMSHRC 2409,2415 (September 1990) (Ideal I). Applying this test, I find that Empire 

violated the regulation. 

To establish a violation of this regulation, the Secretary must show: ( 1) that there was a 

defect in the metal shear; (2) that the defect affected safety; and (3) that the defect was not 

corrected in a timely manner to prevent the creation of a hazard. It is the Secretary's po:::ition 

that the defect in this case was the failure of 8 of the 17 air lift transfer balls used to assist in 

positioning steel on the shear to function;3 that the defect affected safety because the ~onfunctioning balls made it hard to move the steel on the shear resulting in the two back injuries; 

and that the defect was not corrected in a timely manner because the operator was put on notice 

by the first back injury, if not before, that the defect created a hazard and had not corrected the 

defect before the second injury occurred. On the other hand, while the Respondent concedes that 

some of the balls were not functioning, it argues that the defect did not affect safety and that, 

even if it did, it was corrected in a t_imely manner. 

· While there may be some dispute as to exactly how many of the transfer balls were not 

functioning, there is no dispute that some were not functioning. The Commission has previously 

held that: "In both ordinary and mining industry usage, a 'defect' is a fault, a deficiency, or a 

condition impairing the usefulness of an object or a part. Webster's Third New International 

Dictionary (Unabridged) 591 ( 1971 ); U.S. Department of Interior, Bureau of Mines, A 

Dictionary of Mining, Mineral, and Related Terms 307 (1968)." Allied Chemical Corporation, 

6 FMSHRC 1854, 1857 (August 1984). I find that the failure of some of the transfer balls to 

function impaired the usefulness of the shear. Therefore, I conclude that there was a defect in the 

metal shear. 

2 30 C.F.R § 56.9002 (1987) provided: "Equipment defects affecting safety shall be 

corrected before the equipment is used." 

3 There are recessed metal balls in two rows across the table of the shear. (Resp. Exs. 4 

and 6.) When heavy metal plate is being positioned on the table to be sheared, the balls can be 

raised to table level by air pressure and as the plate is pushed onto the table, the balls rotate 

making it easier to move the metal. 

1.91.5 
Turning to the second element, whether the defect affected safety, I note that the 

Commission has stated that: "The phrase 'affecting safety' ... has a wide reach and the 'safety 

effect of an uncorrected equipment defect need not be major or immediate to come within that 

reach."' Ideal Cement Co., 13 FMSHRC 1346, 1350 (September 1991) (citations omitted) (Ideal 

If). The transfer balls purpose was to make it easier to move large pieces of steel onto the shear. 

The harder it is to move heavy metal on the shear table, the more likely that a back strain or other 

type of injury could occur. Thus, while there may have been other factors that contributed to the 

back injuries in this case~ such as the floor not being level, I conclude that the defect comes 

within the "wide reach" set out by the Commission, and was a defect affecting safety.• 

That leaves the third element, whether the defect was corrected in a timely manner. 

Empire argues that "timely" does not mean immediately and that it corrected the defect in a 

timely fashion. The regulations do not define "timely," nor has the Commission had occasion to 

address this question. However, the dictionary defines "timely" as "done or occurring at a 

suitable time." Webster's Third New International _Dictionary (Unabridged) 2395 ( 1986) 

(Webster's). And the Secretary has indicated that a suitable time depends on the defect: 

If safety defects are detected on any equipment, machinery 

or tools, the required compliance measures vary with the degree of 

the hazard. The . . . rule requires that aU safety defects be 

corrected in a timely manner and that, in instances where continued 

use would pose a risk of injury, the correction must be made 

immediately unless the defective equipment is removed from 

service and identified as defective. The defective condition must 

be corrected before the equipment is returned to service. 

Safety Standarrjs for Loading, Hauling, and Dumping and Machinery and Equipment at Metal 

and Nonmetal Mines, 53 Fed. Reg. 32,496, 32,504 (1988) (Safety Standards). 

Although there is evidence that management was put on notice in the spring of 1996 that 

some of the transfer balls were not working, the fabrication shop had been moved from town out 

to the mine during that period and all the equipment had to be erected again. Consequently, it 

was only shortly before Swanson7s injury on August 28, that the shear had resumed operation. 

Accordingly, I find for the purpose of this decision, that Rich Hill, the fabrication shop foreman, 

was put on notice on August 29 that there was a defect affecting safety on the metal shear. 

4 In connection with this conclusion, I find the testimony of Richard Bradley, who had 

never used the shear, and Ed Tresedder, that the transfer balls were merely a "convenience" 

inapposite. Likewise, I find the testimony that there may have been other means of getting the 

plate onto the shear, such as a crane or forklift, not relevant to this determination. The important 

point is that the balls were part of the machine, and their failure to function could, and did, result . .. . . m mJunes. 

1916 
Hill initiated an investigation of the incident which was completed on September 4, 1996. 

The Safety System Final Investigation Report, (Govt. Ex. 5), found that the immediate causes of 

the injury were "improper handling/loading/placement, improper position for task," that the basic 

causes were "inadequate capability, inadequate maintenance" and that "Marvin was probably 

trying to push harder than he is physically capable. Some of the transfer balls which aid the 

movement of the plate were not working properly which caused more friction, requiring more 

bull work to move the plate." As preventive action the report indicated that the equipment 

should be repaired by "_repair[ing] transfer balls which are not working." 

Hill had only been the foreman of the fabrication shop since March 1996. Prior to that he 

had never worked in the fabrication shop and he had no training in running the fabrication shop. 

Although he had determined that the transfer balls had to be repaired, he did not know how to do 

it. He checked the manual for the shear, but it provided no help. He called the shear 

manufacturer who in tum told him to call the transfer ball manufacturer. He did not, however, 

ask any of the shop employees for their input. 

Consequently, nothing had been done when Smith's back injury occurred on September 

10, 1996. Fortunately, Byron Tosseva, foreman of the welding shop, happened to overhear some 

of the employees discussing Smith's injury, inquired what had happened, and told the men to 

"shut the machine down, lock it out and we'll get it fixed." (Tr. 202-03.) Gary Waterman, a 

fabrication shop employee, figured out bow to remove the balls, clean and replace them and the 

machine was ready to operate the next day. Hill, who still had not received any guidance from 

either manufacturer,5 initiated a work order to account for the machine's down time, describing 

the work as: "repair transfer balls on Pacific shear. Clean, adjust or replace all the transfer 

balls." (Resp. Ex. 1.) 

Empire asserts that Hill's actions in contacting the manufacturers was reasonable and that 

he was trying to correct the problem in a timely manner. I do not agree. What he should have 

done was what T osseva, who knew no more about the machine than be, did, i.e. shut down the 

machine and repair it. I find Hill's response to the problem simply unreasonable. Not knowing 

anymore on September 10 than he knew on August 29 he still was able, after Tosseva bad acted, 

to direct that the transfer balls be "cleaned, adjusted or replaced., He could have done the same 

thing on August 29 or September 4. Accordingly, I fmd that the defect was not corrected in a 

timely manner. 

Section 56.1 of the regulations, 30 C.F.R § 56.1, states: "The purpose of these standards 

is the protection of life, the P!omotion ofhealth and safety, and the prevention of accidents." I 

fmd that a reasonably prudent person familiar with the mining industry and this purpose would 

have repaired the shear immediately after Swanson reported his injury and the reasons for it on 

August 29, to prevent a similar injury, and would not have permitted work to continue while he 

5 He finally received something in January 1997. 

1917 
waited for guidance from the manufacturer. Therefore, I conclude that Empire violated section 

56.141 OO(b) of the regulations. 

Significant and Substantial 

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

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

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

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

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

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

Cement Di,·ision, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ). 

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

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

FAfSHRC. 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-

04 (5th Cir. 1988), affg Austin Power. Inc., 9 FMSHRC 2015, 2021 (December 1987) 

(approving }.fat hies criteria). Evaluation of the criteria is made in terms of "continued normal 

mining operations." US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The 

question of whether a particular violation is significant and substantial must be based on the 

particular facts surrounding the violation. Texasgu/f. Inc., 10 FMSHRC 498 (April 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 1007 (December 1987). 

The inspector found the violation to be S&S because two back injuries had occurred 

before the shear was repaired. The Respondent argues that the violation is not S&S because the 

Secretary did not show that the transfer balls were the cause of either injury. While it is true that 

the evidence does not establish that the failure of the transfer balls to operate was the only cause 

of the injuries, it does show that it was a contributing cause. Furthermore, since there is no 

evidence that similar back injuries occurred after the balls were fixed, it appears that they were a 

significant part of the injuries. 

I find that the failure of the transfer balls to operate properly made it reasonably likely 

that an injury would occur. The parties stipulated Smith suffered lost time due to his injury. 

Therefore, it is apparent that the injury was reasonably serious. Accordingly, I conclude that the 

violation was "significant and substantial." 

Unwarrantable Failure 

The inspector also found that this violation resulted from Empire's "unwarrantable 

failure" to comply with the regulation. The Commission has held that unwarrantable failure is 

aggravated conduct constituting more than ordinary negligence by a mine operator in relation to 

a violation of the Act. Emery Mining Corp., 9 FMSHRC 1997,2004 (December 1987); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007,2010 (December 1987). "Unwarrantable 

1918 
failure is characterized by such conduct as 'reckless disregard; ' intentional misconduct,' 

'indifference' or a 'serious lack of reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh 

Coal Corp. 13 FMSHRC 189, 193-94 (February 1991)." Wyoming Fuel Co., 16 FMSHRC 1618, . 

1627 (August 1994). 

Empire argues that the violation did not result from an unwarrantable failure because 

"[g]iven the minor nature of the condition reported by Mr. Swanson,_ it was appropriate for Mr. 

Hill to proceed as he d jd to investigate the proper way to repair the air-assisted balls." (Resp. Br. 

at 14.) Swprisingly, the Secretary did not question the inspector as to why he found the violation 

to be an unwarrantable failure, nor did she discuss unwarrantable failure in her brief. 

Nevertheless, I conclude that this violation resulted from the Company • s unwarrantable failure to 

comply with the regulation. 

The nature of the injury makes no difference on this issue. It would be unreasonable to 

assume that because Swanson's back injury did not require any lost time, that any future back 

injuries would also be minor. It is the fact of injury that is significant in this case. Swanson's 

inj ury put Hill on notice that the defective transfer balls created a hazard for his employees. 

Because the defect created a hazard, he should have shut the shear down and tagged it out 

immediately. His nonchalance in not doing so demonstrated an indifference that rdises the 

violation to the level of an unwarrantable failure. 

Citation No. 4537216. Docket Nos. LAKE 97-39-RM and LAKE 97-69-M 

The No.2 ore crusher belt is about 2,100 feet long. The belt itself is 60 inches wide and 

is 43 inches above the surrounding floor. Up near the head of the belt, there are 1-beams on 

either side of the belt, the tops of which are also 43 inches above the floor, extending along the 

belt for about 30 feet. The top surface of each I -beam is 10 inches wide. The beams are part of 

the structural steel for the conveyor belt bed. 

On February 12, 1997, as part of a regular mine inspection, Inspector Vilona was walking 

along the No. 2 belt. He observed footprints in the dust on top of one of the 1-beams. Based on 

the footprints, the fact that he was told that repair work was occasionally performed on the belt in 

that area, and the fact that there were no handrails on the 1-beams, he concluded that a violation 

of section 56.11 027 of the regulations, 30 C.F .R § 56.11027, had occurred. Consequently, he 

issued Citation No. 4537216, which states: "The belt repair area located at the head end of the 2 

belt was not equipped with handrails. The area measures about 30' long 7' wide and 43" high. A 

60" wide belt runs down the center. Footprints were observed along the 10" wide steel on each 

side of the belt. Work is done here a few times a year, 2 men on a crew. Fall hazard." 

Section 56.11027 requires, in pertinent part, that: "Scaffolds and working platforms shall 

be of substantial construction and provided with handrails and maintained in good condition." . 

The Secretary maintains that the 1-beams are working platforms. The Respondent contends that 

they are not and that, even if they are now found to be, the company did not have adequate notice 

1919 
that the regulation applied to this area. I find the Secretary has not established that the 1-beam 

was a working platform. 

Since the regulations do not define ''working platform," the standard must be evaluated 

under the "reasonably prudent person" test. Ideal I, supra. The dictionary defmes "platform" as 

"a horizontal flat surface usu[ually] higher than the adjoining area." Webster's 1735. The 

regulations define "working place" as "any place in or about a mine where work is being 

performed." 30 C.F.R. §. 56.2. Therefore, it seems logical that a "working platform" is a "raised, 

horizontal, flat surface where work is being performed." Applying that defmition to this case, it 

is apparent that the issue is not whether the 1-beams were a raised, horizontal, flat surface, but 

whether work was being performed on them. 

Both of the company's witnesses, Gordon Nelson, Maintenance Coordinator, and 

William Hansard, Safety Coordinator, testified that the 1-beam was only useq to step onto the 

belt when belt repairs were performed. They claimed that no work was done while standing or 

kneeling on the 1-beam. The Secretary's witness, Ray Ball, a former plant repairman, was more 

equivocal. When pressed on the issue, he testified as follows: 

(Trl. 322.) 

Q. Did you ever do work while you were on the I-beam? 

A. I think--- like I said earlier, wherever you spotted the belt you 

might have had to stand on the end of the beam to guide your 

cooker in underneath the belt. 

Q. I thought that when you used the cooker you spotted it ahead of 

the 1-beam? 

A. You had the 1-bearn here and it stopped and then you had an 

opening where you put your cooker underneath. So if you got it 

hanging by the crane and you're trying to get underneath here, 

somebody' s standing here trying to wiggle it underneath the crane. 

Q. Would that be on the !-beam or in front of the 1-beam? 

A. Sometimes you're on the 1-beam and sometimes you're in front 

of the 1-beam. 

The testimony showed that the cooker to which Ball was referring is used only two or 

three times a year. Thus, at best, the evidence demonstrates that an employee may ~r may not 

stand on the platform two or three times a year to guide the cooker onto the area of the belt being 

1920 
repaired. In addition, the evidence is that when the cooker is used now, the handrails, installed 

by the company to abate this violation, have to be removed. 

I find that so little, if any, work is done on the 1-beam that the 1-beam is not a "working 

platform" within a reasonable interpretation of the regulation. To find that this de minimis use of 

the 1-beam makes it a working platform, results in the paradoxical circwnstance of the required 

handrails having to be removed to perform the very function that makes them required. 

Accordingly, I conclude that Empire did not violate section 56.11027 and will vacate the citation. 

Citation No. 4537093. Docket No. LAKE 97-41-M 

On Thursday, January 2, 1997, Glenn Wing, a surveyor at the Empire Mine, was coming 

to work at about 6:30a.m. While traveling on a two lane, blacktop, access road on mine 

property, the rear of his car slid while exiting a curve and he collided with a pickup truck driven 

by an employee at the Tilden Mine. Wing received a few small cuts and a sore back as a result 

of the accident. 

The week previously, the road had been closed because a pipeline had been leaking 

causing ice to form on the road in the area where the accident occurred. The leak was repaired 

before the road was reopened and the pipeline was not leaking on January 2. 

The night before the accident, it snowed two to three inches. That morning it snowed 

another Y2 inch. Wing described the road conditions as follows: "Basically looked like there had 

been a fresh snowfall with approximately a halfto an inch of snow on the road, and the lanes 

where the cars had been driving, where the tires had been running was mostly wet with slush on 

the rest of the roadway." (TriL 68.) 

Inspector Stephen Field was conducting an inspection of the Tilden Mine when he 

learned of the accident and was instructed by his supervisor to investigate it. He arrived at the 

accident scene six or seven hours after it had occurred. Based on his investigation, he issued 

Citation No. 4537093 because: 

An employee on his way to work could not maintain 

control of his vehicle while rounding a comer on the mine access 

roadway near the Empire pipeline crossing. The employee vehicle 

slid into the opposite lane colliding with a vehicle traveling in the 

. opposite dire~tion. Two patches of ice, cause by a pipeline leak 

during the previous week, extended across the roadway in 2 areas 

near the corner. An accident of this nature has the potential to 

cause serious injuries to persons involved. Reportedly, there was 

about 1" of snow, ice and slush on the roadway. 

(Govt. Ex. 7.) 

1921 
The citation initially alleged a violation of section 56.9101 ofthe regulations, 30 C.F.R. 

§ 56.9101,6 but was amended to allege a violation of section 56.11016, 30 C.F.R. § 56.11016, on 

August 19, 1997.

7 Section 56. 11 016 requires that: "Regularly used walkways and travel ways 

shall be sanded, salted, or cleared of snow and ice as soon as practicable." The Secretary argues 

that the Respondent violated this section because "the ice was not removed from the tfavelway as 

soon as was practicable." (Sec. Br. at 24.) However, that is not what the standard requires; the 

standard requires that iftJ:lere is snow and ice on a walkway or travelway, the operator may sand 

it, salt it or clear it as soon as practicable. 

In this case, the company elected to salt the road, although the evidence of this is not 

overwhelming. The inspector, who visited the scene some six or seven hours after the fact, 

stated, when asked if he could tell whether the roads had been salted, "the roads were bare." 

(Trll. 30.) Wing testified that: "It appeared because of the melt in the slush that there had been 

salt on the road. . . . The impression I had was they had salted and it snowed a little bit after."8 

(Trll. 68, 70.) Steven Laine, the man whose truck Wing hit, had only this to say about salt: 

Q. Had you seen a salt truck operating while you were ---

1\. No. 

Q. ---on the road? Did you see any evidence of salting or 

sanding? 

A. No. 

(Tr. 84.) The only other testimony on this issue was from Steven Roberts, Safety Coordinator at 

the mine, who ~:elated: "I believe [Inspector Field] had asked me whether the road had been 

salted, and I didn't know the answer, so I called our pit area to find out and they had indicated 

that it had been during the night shift." (Trll. 136-37.) 

I find that a preponderance of the credible evidence demonstrates that the company had 

salted the access road prior to Wing's accident. In making this finding, I am giving no weight to 

the testimony of Laine on this issue because his "no" answer was not explained and it was 

6 See discussion of Citation No. 4537285 infra for the requirements of this regulation. 

7 The Respondent's objection to the amendment of the citation was overruled at the 

hearing. (Trl. 21-28.) 

8 Wing was not able to verify that he slid on the ice caused by the pipeline leak, which is 

the theory of the Secretary's case, because he never went back to check on what he had slipped. 

No one else testified that he had slipped on the ice patch. 

1922 
apparent from his testimony that he was shading it to support his lawsuit against Wing and the 

company for this accident. Accordingly, I conclude that instead of violating the regulation, the 

company complied with it. Consequently, I will vacate the citation. 

Citation No. 453285. Docket Nos. LAKE 97-53-RM and LAKE 97-69-M 

While driving home from work in his personal vehic1e on February 21, 1997, James 

Beltrame attempted to pass a truck hauling material to the mine when he skidded on ice. His car 

hit a snow bank and rolled over resulting in his receiving a broken rib and being off work for five 

days. The road on which this occurred was on mine property. The attempted pass was in a 

marked no passing zone. 

Inspector Field went to the mine to investigate this accident on February 25. After 

talking to Beltrame and viewing the accident scene, he issued Citation No. 4537286 alJeging a 

violation of section 56.91 01 because: 

(Govt. Ex. 9.) 

An accident occurred on February 21, 1997 when an 

employee on his way home from work failed to maintain control of 

his vehicle on the mine access road. The employee vehicle, while 

attempting to pass an over-the-road haulage truck, overturned after 

sliding on ice and striking the snow bank on the opposite side of 

the road. Consequently, the employee suffered a fractured rib 

resulting in 5 days lost time and restricted duty. The roadway 

speed was posted and this accident occurred in a no passing zone. 

Section 56.9 101 provides: "Operators of self-propelled mobile equipment shall maintain 

control of the equipment while it is in motion. Operating speeds shall be consistent with 

conditions of roadways, tracks, grades, clearances, visibility, and traffic, and the type of 

equipl)lent used." The Respondent asserts that this standard does not apply to the operation of 

personal automobiles used by miners to travel to and from work. I agree. 

This is a case of first impression. The Secretary has not cited any cases where a miner 

has been charged with not maintaining control of his car going to and from work. It appears that 

there are none. While it seems obvious that this regulation was never intended to apply to a 

situation such as this, I will ~xamine it under the "reasonably prudent person" test. Ideal! supra. 

I note first that a personal automobile, by definition, is not owned by the mine operator. 

Nor was it being used by the miner in the performance of his duties at the mine. Secondly, the 

standard is found in Subpart H of the regulations, which is entitled "Loading, Hauling, and 

Dumping." The car was not being used to perform any of these functions. Third, there is no 

mention in the final rule of these standards that they apply to personal automobiles. Safety 

1923 
Standards, 53 Fed. Reg. 32496 (1988). Finally, there is no evidence in the record that the 

Secretary has ever, either in her Program Policy Manual or by some other means of public 

notice, interpreted the regulation to include personal automobiles. · 

Furthermore, as suggested by the Respondent, if a personal automobile is mobile 

equipment within the meaning of the regulations, it would have to be inspected each shift, 30 

C.F.R. § 56.141 OO(a); the mine operator would have to maintain a record of defects found, 30 

C.F.R. § 56.14IOO(c); it would have to have a service brake system, 30 C.F.R. § 56.14101; it 

would have to have a backup alarm, 30 C.F.R. § 56.14132; and a warn-ing would have to be 

sounded before it could be started, 30 C.F.R. § 56.14200. It apparently would not, however,-

have to have seat belts. Personal automobiles are not listed among the specific types of mobile 

equipment required to have seat belts installed in them. 30 C.F.R. § 56.14130(a). On the other 

hand, cars are also not listed among the specific types of mobile ~quipment exempted from the 

requirement. 30 C.F.R. § 56.14l30(f). Plainly, there was never any intention to include personal 

automobiles as mobile equipment in the regulations. 

Although the Commission has never had occasion to rule on this issue, there have been 

some cases involving personal automobiles. In Energy West Mining Company, 15 FMSHRC 

586 (April 1993), the Commission held that an injury sustained in a personal automobile accident 

on mine property was a reportable injury under section 50.20 of the regulations, 30 C.F.R. 

§ 50.20. The case turned, however, on the definition of reportable injury under the regulation, 

"any injury to a miner," and not on whether a personal automobile was covered by the 

regulations. 

Two Commission judges have found violations of section 77.404(a), 30 C.F.R. 

§ 77.404(a),9 when security guards were asphyxiated while on duty in their personal cars. Extra 

Energy, Inc., 18 FMSHRC 1489 (Judge Melick August 1996); Madison Branch Management, 

17 FMSHRC 1257 (Judge Feldman July 1995). In both cases the deaths were caused by 

defective exhaust systems. In neither case, however, was the issue of whether the regulation 

applied to personal automobiles addressed. Furthermore, the cases are distinguishable from the 

instant case in that the personal automobiles were being used by the miners to perform their 

duties at the mine. 

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

protective purposes of the Act, would not have recognized that section 56.9101 applies to the 

operation of personal automobiles being driven home from work. Accordingly, I conclude that 

Empire did not violate section 56.9101 and will vacate the citation. · 

9 Section 77.404(a) provides: "Mobile and stationary machinery and equipment shall be 

maintained in safe operating condition and machinery or equipment in unsafe condition shall by 

removed from service immediately." 

1924 
Civil Penalty Assessment 

The Secretary has proposed a civil penalty of $1~98.00 for Order No. 4537055 and the 

parties have agreed on penalties of$3,824.00 for the settled order and citations. However, it is 

the judge's independent responsibility to detennine the appropriate amount of penalty in 

accordance with the six penalty criteria set out in section 11 O(i) of the Act. Sellersburg Stone 

Co. v. FMSHRC, 136 F.2d .1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18 FMSHRC 481, 

483084 (April 1996) .. 

The parties stipulated that Empire worked approximately 1.9 million hours in 1995 and 

that payment of the proposed penalties w!ll not affect Empire's ability to continue in business. 

(Trl. 29-30.) With respect to the remaining criteria, since no evidence was presented that the 

company did not demonstrate good faith in attempting to achieve rapid compliance after 

notification of the violations, I find that Empire demonstrated good faith in this area. The 

company's history of violations indicates an average number of prior violations. (Govt. Ex. 1.) 

Therefore, I find that the Respondent's history of prior violations is neither good nor bad. I find 

that the gravity of the violation in Order No. 4537055 was relatively serious in that moderately 

serious injuries occurred as a result of it. I also find the level of negligence for that violation to 

be high. 

Taking all of this into consideration, I conclude that the penalty proposed by the 

Secretary for Order No. 4537055 and the penalties agreed to by the parties for the settled 

violations are appropriate. Accordingly, for Docket No. LAKE 97-47-M, I assess penalties of 

$100.00 for Order No. 4537047 and $1,298.00 for Order No. 4537055. For Docket No. LAKE 

97-50-M, I assess penalties of $1 ,862.00 each for Citation Nos. 4534187 and 4537188. 

ORDER 

Accordingly, Order No. 4537189 in Docket Nos. LAKE 97-37-RM and LAKE 97-50-M, 

Order No. 4537l90 in Docket Nos. LAKE 97-38-RM and LAKE 97-50-M and Citation Nos 

4537187 and 4537188 in Docket No. LAKE 97-50-M are AFFIRMED; Citation No. 4537216 in 

Docket No. LAKE 97-39-RM and Citation No. 4537285 in Docket No. LAKE 97-53-RM, which 

citations are also included in Docket No. LAKE 97-69-M, are VACATED; Order No. 4537047 

in Docket No. LAKE 97-47-M is MODIFIED by deleting the "significant and 

substantial"design~tion and AFFIRMED as modified, Order No. 4537055 in Docket No. LAKE 

97-47-M is AFFIRMED and Citation No. 4537051 in Docket No. LAKE 97-47-M is 

VACATED; Citation No. 4537093 in Docket No. LAKE 97-41-M is VACATED; and Citation 

No. 4537206 in Docket No. LAKE 97-51-M is VACATED. 

1925 
Empire Iron Mining Partnership is ORDERED TO PAY civil penalties of$5,122.00 

within 30 days of the date of this decision. On receipt of payment, these cases are DISMISSED. 

~~~ Administrative Law Judge 

Distribution: 

R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 301 Grant St., 20'" Floor, Pittsburgh, 

PA 15219-1410 (Certified Mail) 

Christine M. Kassak Smith, Esq., Office of the Solicitor, U.S. Dept. of Labor, 230 S. Dearborn 

St., 81

" Floor, Chicago, IL 60604 (Certified Mail) 

Thomas J. Pavlat Conference and Litigation Representative, MSHA, 2200 Marquette Rd., Suite 

110, Peru, IL 61354 (Certified Mail) 

/It 

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ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET, N.W. ()111 FLOOR 

W ASBINGTON D.C. 20006-3868 

SECRETARY OF LABOR 

MJNESAFETY ANDHEALTH 

ADMINISTRATION (MSHA) 

Petitioner 

v. 

QUAPAW COMPANY, 

Respondent 

Roveaber 18. 1997 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 97-198-M 

A. C. No. 34-01273-05531 

Drumright Quany 

ORDER TO PETITIONER TO SHOW CAUSE 

ORDER TO SUBMIT INFORMATION 

This case is before me pursuant to section 105(d) ofthe Federal Mine Safety and Health 

Act of 1977. 30 U.S.C. § 815(d). 

On September 11, 1997, the Secretary received the operator's notice of contest of civil 

penalties, a copy of which was filed with the Commission on September 18, 1997, and assigned 

the above-captioned docket number. 

On November 6, 1997, the Solicitor on behalf of the Secretary mailed a petition for 

assessment of penalty for this case which was received at the Commission on November 1 0, 

1997. There were no attached exhibits to the Solicitor's petition. 

Commission rule 2700.28(a), 29 C.F.R. § 2700.28(a), requires the Secretary to file a 

penalty petition within 45 days of receipt of a contest of a penalty. Filing is effective upon 

mailing. 29 C.F.R. § 2700.5(d). The petition in this case should have been filed on October 27, 

1997. Therefore, it is 10 days late and the Solicitor must explain why his petition was untimely. 

Furthermore, Commission rule 2700.28(b) and (c), 29 C.F.R. § 2700.28(b) and (c), 

requires that the petition list the alleged violations and the proposed penalties, identify each 

violation by the nW:nber and date of the citation or order and the section of the Act or regulations 

alleged to be violated, and that a legible copy of each citation contested be attached. The penalty 

petition filed by the Solicitor does not contain this information. Therefore, the petition is 

incomplete and the Solicitor must provide the requisite info~ation before this case can proceed. 

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This case is one of an increasing number of recent cases where the Secretary's 

representatives fail to attach required exhibits to the penalty petitions. These cases involve 

both Solicitors and CLRs. The Commission's filing requirements are easily understood 

and well known to the Secretary's representatives. However, the Commission's docket 

office is spending a great deal of time telephoning the Secretary's representatives to obtain 

the necessary documents. It is not the Commission's responsibility to continually remind 

the Secretary's representatives to furnish documentation necessary to perfect filing so that 

the cases can proceed. Henceforth, show cause orders will be issued in these cases. 

In light of the foregoing, it is ORDERED that within 21 days the Solicitor show cause 

why this case should not be dismissed for untimely filing. 

It is further ORDERED that within 21 days the Solicitor file the necessary information 

for his penalty petition to fulfil1 the requirements set forth in the Commission rules or. show 

cause why this case should not be dismissed for inadequate filing. 

= 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: (Certified Mail) 

James E. White, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffm Street, 

Suite 501, Dallas, TX 75202 

Ed Clair, Esq., Associate Solicitor, Office of the Solicitor, U.S. Department ofLabor, 401 5 

Wilson Boulevard, Suite 420, Arlington, VA 22203 

Mr. Robert L. Childress, President, Quapaw Company, P. 0 . Box 609, Stillwater, OK 74076 

/gl 

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