JANUARY 2003 

THERE WERE NO COMMISSION DECISIONS OR ORDERS 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-06-2003 Southwest Quarry and MateriaJs, Inc. 

01-13-2003 Highlands Mining & Processing Co., Inc. 

01-14-2003 Hazel Olson v. Jacobs Ranch Coal Co. 

01-28-2003 Lodestar Energy, Inc. 

01-29-2003 Dallas Croasmun v. Consol Pennsylvania 

Coal Company 

01-31-2003 Eastern Associated Coal Corporation 

ADMINISTRATIVE LAW JUDGE ORDERS 

01-08-2003 Manalapan Mining Company 

01-10-2003 Aggregate Industries, West Central Region 

01-14-2003 Hazel Olson v. Triton Coal Company 

i 

CENT 2002-210-M 

KENT 2002-110 

WEST 2002-305-D 

KENT 2002-184 

PENN 2002-162-D 

WEY A 2002-46 

KENT 2002-203-D 

WEST 2002-317-RM 

WEST 2002-302-D 

Pg. 1 

Pg. 6 

Pg. 9 

Pg. 13 

Pg.23 

Pg.30 

Pg. 47 

Pg. 51 

Pg. 54 

ADMINISTRATIVE LAW JUDGE DEOSIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

SECRETARY OF LABOR, 

M1NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHWEST QUARRY AND 

MATERIALS, INC, 

Respondent 

Before: Judge Manning 

DENVER, CO 80204-3582 

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

January 6, 2003 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. CENT 2002-210-M 

A.C. No. 23-00759-05519 

Southwest Quany 

The Secretary filed a petition to assess a civil penalty of $9,500 against Southwest QuarTy 

and Materi als, Inc., ("Southwest Quarry") in this case. This penalty was proposed for Citation 

No. 4458601 , which alleges that Southwest QuaITy denied duly authorized representatives of the 

Secretary the right to inspect its quarry on December 11, 2001, in violation of section 103(a) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 813(a) ("Mine Act"). Southwest 

Quarry filed an answer to the Secretary's petition which states that it assumes that the proposed 

penalty is a "misprint." It further answered as follows: 

We went to Federal Cowt and settled this matter. If you people 

think that I'm going to keep paying you, you had better think agajn. 

The answer did not deny the allegations contained in the citation. This case was set for heating. 

On November 20, 2002, the Secretary filed a motion for summary decision. In the motion, 

the Secretary states that the precise issue contested by Southwest Quan·y in this case was "actually 

and necessarily decided" by the United States District Court for the Eastern District of Missouri in 

Chao v. Chester McDowell, 198 F.Supp.2d 1093 (2002). As a consequence, the Secretary 

argues that, under the doctrine of collateral estoppel, the fact that Southwest Quarry denied entry on 

December 11, 2001, may not be relitigated before the Commission. The Secretary also contends 

that the statutory criteria used to assess a civil penalty were either addressed by the disttict court or 

are not in dispute. Accordingly, she contends that a violation of section 103(a) of the Mine Act has 

been established and she seeks the assessment of an appropriate civil penalty. 
On November 21, 2002, in response to the Secretary's motion, I issued an order canceling 

the hearing. I also ordered Southwest Quarry to file a response to the motion. In the order, I 

advised Southwest Quarry of the provisions contained in the Commission's procedural rule on 

motions for summary decision and stated that, if it did not respond to the Secretary's motion, a 

decision may be entered against it. I also enclosed a copy of 29 C.F.R. § 2700.67 with the order. 

Southwest Quarry did not respond to the Secretary's motion or to my order to respond. 

In his memorandum and order, District Court Judge Webber explained that on November 

24, 1998, the district court entered a permanent injunction which enjoined Quarry Superintendent 

Chester McDowell and Southwest Quarry, their agents and employees, from directly or indirectly 

denying inspectors of the Department of Labor's Mine Safety and Health Administration ("MSHA") 

entry into the quarry for purposes of carrying out the provisions of the Mine Act. 198 F.Supp.2d at 

1094. The injunction also set forth remedies in the event that Southwest Qua1Ty violated the terms 

of the injunction. The injunction provided that if Chester McDowell was not present when MSHA 

inspectors arrived, another person shall be designated as the person in charge. Id. at 1095. 

Judge Webber described in detail the events that occuJTed at the quaITy on December 11 , 

2001, when La1Ty Feeney and Michael Davis, two authorized representatives, aITi ved to inspect the 

quan-y. Id. at 1095-96. An employee of Southwest Quarry, Virginia Gaddy, informed the 

inspectors that the inspection could not proceed because Chester McDowell was not present. 

When they asked for Troy Gaddy, an employee listed as a walk-around representative, Ms. Gaddy 

responded that he was operating the crusher so he could not accompany them. The inspectors 

waited for McDowell, but when he did not appear and the inspection was again prohibited by 

Ms. Gaddy, they issued the subject citation. Apparently, McDowell was on the property in his 

pickup truck and, when the citation was given to him by Ms. Gaddy, McDowell became furious and 

tore it up. McDowell approached the inspectors, threw the torn citation into Feeney's face, and 

verbally abused them. Id. at 1096. The inspectors issued a section 104(b) order of withdrawal 

because Southwest QuaiTy refused to comply with the citation and left the quan-y. Judge Webber's 

description of these events provides more detail. The judge also described previous incidents in 

which Southwest Quan-y refused entry to MSHA inspectors. Id. at 1096-98. 

Judge Webber determined that the Secretary had met its burden to adduce clear and 

convincing evidence that Southwest Quarry* had violated the November 1998 injunction. The court 

noted that it was "struck by the gravity" of the situation, that Southwest Quarry had impeded the 

ability of MSHA "to conduct normal, regulatory inspections" of the quarry on four separate 

occasions, and that McDowell had "threatened physical harm" to MSHA inspectors. Id. at 1100. 

Judge Webber imposed civil contempt sanctions on Southwest Quarry in the amount of $100,000 

* The respondents in the district court case were Chester McDowell, Virginia Gaddy, and 

Southwest Quarry & Materials, Inc. I refer to them collectively as Southwest Quarry in this decision. 

2 
and sentenced Mr. McDowell to a "thirty-day period of incarceration" Id. The judge suspended 

both sanctions so long as Southwest Quarry complies with the court's injunction of November 24, 

1998. The judge ruled that if Southwest Quarry "should, in the future, impede in any fashion a lawful 

inspection conducted by MS.HA inspectors" the suspension will be removed. Id. Southwest Quarry 

did not appeal the district court's order. 

There can be no dispute that the Secretary and Southwest Quarry fully adjudicated the 

events that lead to the issuance of Citation No. 4458601 in the district court proceeding. Southwest 

Qua1Ty was represented by counsel and the court entered detailed findings of fact. Under the 

doctrine of collateral estoppcl, a judgment on the merits in a prior suit may preclude the relitigation in 

a subsequent suit of any issues actually litigated and determined in the prior suit. BethEnergy 

Mines, Inc. , 14 FMSHRC L 7, 26 (Jan. 1992) citing Parklane Hosiery Co. v. Shore, 439 U.S. 

322, 326 (1979). Identity of issues is a fundamental clement that must be satisfied before collateral 

estoppel may be applied. "[O]nce a court has decided an issue of fact or law necessary to its 

judgment, that decision is conclusive in a subsequent suit based on a different cause of action 

involving a party to the p1ior litigation." U.S. v Mendoza, 464 U.S. 154, 158 (1984). Collateral 

estoppel serves "the dual purpose of protecting litigants from the burden of relitigating an identical 

issue with the same pa11y ... and of promoting judicial economy by preventing needless litigation." 

Parkland Hosiery 439 U.S. at 326. The district court determined that Southwest QuatTy violated 

the terms of the injunction by prohibiting a lawful inspection of the quarry on December 11 , 2001. 

I fi nd that collateral estoppel should be applied because the issues in the two cases are 

identical, the disttict cou11 judgment was a final adjudication on the merits, the two cases involve the 

same parties, and Southwest Quarry was given a full and fair oppo1tunity to be heard in the rustrict 

court action. Jurisdictional issues are subject lo collateral estoppel in Mine Act cases. See 

Mechanicsville Concrete, Inc., 17 FMSHRC 483 (March 1995) (ALJ); Associated Electric 

Cooperative, Inc., 20 FMSHRC 424 (April 1998) (ALJ). The district court held that the quatTy is 

a mine subject to inspection by duly authorized representatives of the Secretary and that Southwest 

Quarry unlawfully impeded an MSHA inspection when it refused to allow the inspectors to enter the 

quatTy on December 11 , 2001, to catTy out an inspection. These are the same issues that must be 

resolved in this case when determining whether Southwest Quarry violated section 103(a) of the 

Mine Act. Consequently, I find that Southwest Quarry is precluded from rclitigating the issue of 

whether it violated section 103(a) of the Mine Act when it refused to allow Inspectors Feeney and 

Davis entry into the quarry on December 11 , 2001. The Secretary satisfied the Commission's 

requirements for summary decision. 29 C.F.R. § 2700.67. 

Although the parties did not directly litigate what civil penalty should be assessed, taking into 

consideration the criteria set forth in section l lO(i) of the Mine Act, the district court's findings and 

conclusions preclude relitigating any of the court's findings that bear directly on the penalty crite1ia. 

In addition, by failing to respond to the Secretary's motion for summary decision and by failing to 

respond to my order of November 21, 2002, Southwest Quarry waived its right to present evidence 

3 
on the civil penalty crite1ia. Accordingly, I enter the following findings with respect to the six 

statutory penalty criteria. 

MSHA's records presented with the Secretary's motion show that no citations were issued 

to Southwest Quarry between December 11, 1999, and December 10, 2001, but that 56 citations 

had been issued prior to that time. MSHA's records show that the quarry worked 10,875 

production hours in 2001 indicating that it is a relatively small mine operator. The violation occurred 

in the face of a permanent injunction that was issued by the district court in November 1998. In the 

contempt proceeding, the district court determined that Mr. McDowell engaged in a "pattern of 

persistent interference with the lawful actions of MSHA inspectors." 198 F.Supp.2d at 1100. 

Consequently, Southwest Quarry's negligence was high. Southwest Quarry did not make good faith 

effo1ts to abate the condition that gave rise to the citation as evidenced by the fact that the Secretary 

was forced to issue a section 104(b) order after Southwest Quarry continued to refuse entry to the 

inspectors. Id. at 1096. Southwest Quarry did not present any evidence as to its ability to continue 

in business if required to pay the Secretary's proposed penalty. Finally, the violation was serious 

because, by denying MSHA inspectors the right to conduct a lawful inspection, Southwest Qua1Ty 

exposed its employees to hazards that would have been corrected if the inspection had been 

conducted. The district court recognized the gravity of the violation. Id. 

ORDER 

For good cause shown, the Secretary's motion for summary decision is GRANTED. 

Southwest Quarry violated section 103(a) of the Mine Act on December 11, 2001 , when it denied 

entry to MSHA inspectors. Citation No. 4458601 is AFFIRMED as written. Taking into 

consideration the penalty criteria in section llO(i) of the Mine Act, especially the negligence, gravity, 

and good faith criteria, I find that the Secretary's proposed penalty of $9,500 is reasonable and 

appropriate. Consequently, Southwest Qua1ry & Materials, Inc., is ORDERED TO PAY the 

Secretary of Labor the sum of $9,500 within 40 days of the date of this decision. 

Richard W. Manning 

Administrative Law Judge 

4 
Distribution: 

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

Denver, CO 80201-6550 (Ce1tified Mail) 

Chester or Alice McDowell, Southwest Quarry & Materials, 13073 State Route CC, Rolla, MO 

65401-5946 (Ce1tified Mail) 

RWM 

5 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington, D. C. 20001-2021 

Telephone No.: 202-434-9588 

Telecopier No.: 202·434-9949 

January 13, 2003 

SECRET ARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HIGHLANDS MINING & PROCESSING 

COMPANY, INC., 

Respondent. 

Docket No. KENT 2002-110 

A. C. No. 15-16011-03527 

Mine: No. 1 

DECISION APPROVING SETTLEMENT 

Before: Judge Barbour 

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

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

seeking civil penalty assessment for 7 alleged violations of mandatory safety standards found in 

Parts 75 and 77 Title 30, Code of Federal Regulations. 

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

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

proposed settlement is as follows: 

Citation/ 

Order No. Date 30 C.F.R. Assessment Settlement 

7529460 07/25/01 75.400 $ 259.00 $ 259.00 

7529461 07/25/01 75.400 259.00 259.00 

7529462 07/31/01 75.400 259.00 259.00 

7529466 07/31/01 75.370(a)(1) 259.00 259.00 

7529467 07/31/01 75507-(l)(a) 259.00 259.00 

7529470 08/01/01 75.1106-(5)(a) 317.00 259.00 

7529471 08/01101 77.1110 259.00 184.00 

Total: $1,871.00 $1,738.00 

6 
Citation No. 7529460 was issued because it is alleged that dry, black, float coal had 

accumulated at various locations throughout the #2 Conveyor Belt for a distance of approximately 

400 feet. 

Citation No. 7529461 was issued because it is alleged that dry, black, float coal had 

accumulated at various locations throughout the #1 Conveyor Belt for a distance of approximately 

300 feet. 

Citation No. 7529462 was issued because it is alleged that dry, black, float coal had 

accumulated at various locations throughout the #3 entry of the 002 MMU immediately inby the last 

open cross cut which had not had rock dust applied to the roof, ribs, and floor for a distance of 

approximately 76 feet outby the face area. 

Citation No.7529466 was issued because it is alleged that the approved ventilation, 

methane, and dust control plan was not being followed as required. 

Citation No. 7529467 was issued because it is alleged that a piece of non-permissible 

equipment was being used extensively throughout the 002 MMU immediate and main return outby 

the last open cross cut. 

The Respondent has agreed to pay the proposed penalties for the aforementioned citations. 

Citation No. 7529470 was issued because it is alleged that the compressed gas cylinder 

gages located outby the 002 MMU face belt drive were not maintained in safe operating condition. 

The parties propose to modify the gravity to "no lost workdays" and to reduce the penalty because 

they agree that the cyli nders and gages were not in service at the time of inspection. 

Citation No. 7529471 was issued because it is alleged that the fire extinguisher provided 

for the sub station located on the surface was not provided with a record of inspection within the 

prior 6 months. The parties propose to modify the negligence to "low" and to reduce the penalty 

because they agree that the extinguisher was fully charged and because the Solicitor is unable to 

refute the Respondent's claim that the tag provided on the extinguisher was damaged by the 

weather. 

In support of the proposed settlement, the Solicitor has submitted information pertaining to 

the six statutory civil penalty criteria found in Section l lO(i) of the Act, including info1mation 

regarding the Respondent's size, ability to continue in business and history of previous violations. 

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

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

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

7 
ORDER 

The Respondent IS ORDERED to pay a civil penalty of $1 ,738.00 in satisfaction of 

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

proceeding. Also, within the same 30 days the Secretary IS ORDERED to modify the gravity 

for Citation No. 7529470 to "no lost work days" and to modify the negligence for Citation 

No. 7529471 to "low." Upon receipt of full payment and modification of these citations, this 

proceeding is DISMISSED. 

J)tYDavid 1: c1~I. B~our ~~ 

Chief Administrative Law Judge 

Disttibution: 

Tommy D. Frizzell, Conference and Litigation Representative, U.S. Department of Labor, Mine 

Safety and Health Administration, H.C. 66, Box 1762, Barbourville, KY 40906 

Charles Robert Stump, President, Highlands Mining & Processing Company, Inc., P.O. Box 

280, Whitesburg, KY 41858 

/mvc 

8 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

HAZEL OLSON, 

Complainant 

v. 

JACOBS RANCH COAL COMPANY, 

Respondent 

January 14, 2003 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2002-305-D 

DENV CD 2001-09 

Mine I.D. 48-00997 

Jacobs Ranch Mine 

DECISION GRANTING RESPONDENT'S MOTION TO DISMISS 

ORDER OF DISMISSAL 

Before: Judge Manning 

This proceeding was brought by Hazel Olson against Jacobs Ranch Coal Company 

("Jacobs Ranch") under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 815 ("Mine Act") and 29 C.F.R. § 2700.40 et seq. The complaint alleges that Ms. Olson 

was terminated from her employment at the Jacobs Ranch Mine (the "mine") for engaging in 

activities protected under the Mine Act. In its answer, Jacobs Ranch denies that it discriminated 

against Ms. Olson and raises other defenses. 

Jacobs Ranch filed a motion to dismiss this case on the grounds that Ms. Olson failed to 

timely file her complaint of discrimination as required by section 105(c)(2) of the Mine Act. Olson 

opposes the motion. For the reasons set fo1th below, the motion is granted and this case is 

dismissed. 

I. FINDINGSOFFACT 

Ms. Olson was hired by Ken-McGee, Inc., on May 17, 1979, to work as a laborer at the 

mine. Ms. Olson engaged in protected activity while employed by Ken-McGee. On August 8, 

1994, she filed a complaint under section 103(g) of the Mine Act. She also filed two complaints 

under section 105(c) of the Mine Act, one dated October 5, 1994, and the other dated May 25, 

1995. The Depattment of Labor's Mine Safety and Health Administration ("MSHA") investigated 

her discrimination complaints and determined that Ms. Olson was not discriminated against. She did 

not file discrimination complaints on her own behalf under section 105(c)(3) of the Mine Act. 

9 
On July 23, 1998, Kennecott Energy Company ("Kennecott") became the owner of the 

mine. On June 4, 1999, Ms. Olson filed another discrimination complaint with MSHA. When 

MSHA determined that she was not discriminated against, she did not file a section 105(c)(3) case. 

Kennecott is the parent company of Jacobs Ranch. 

Jacobs Ranch terminated Ms. Olson from her employment on December 4, 1999. It 

maintains that she was terminated for providing false and misleading statements during a company 

investigation into two incidents involving her at the mine. Ms. Olson was on a final step disciplinary 

warning at the time of this incident. Olson believed that she was fired for her protected activity. 

On February 16, 2001, Ms. Olson filed a discrimination complaint with MSHA alleging that 

she was terminated for filing the complaints discussed above under sections 103(g) and 105(c) of the 

Mine Act. She filed the discrimination complaint after her husband, Emmett Olson, suffered a stroke 

on January 22, 2001. This stroke caused him to quit his job at the mine. Ms. Olson states that she 

delayed filing her discrimination complaint with MSHA because she feared that Kennecott would 

harass and intimidate her husband. She explains that, at the time she was terminated from her 

employment, she and her husband discussed whether she should file a discrimination complaint. 

They believed that "Mr. Olson would replace her as a victim of harassment and intimidation because 

of the protected activity [she engaged in] prior to her termination." (Olson Opposition 1-2). Olson 

also believed that if she filed a discrimination compla~nt with MSHA, her son, Josh Olson, would not 

be able to obtain a summer job at the mine. 

Section 105(c)(2) of the Mine Act provides than any miner who believes that he has been 

discharged in violation of the Mine Act "may, within 60 days after such violation occurs, file a 

complaint with the Secretary alleging such discrimination." Ms. Olson filed her discrimination 

complaint more than 14 months after she was terminated. 

II. DISCUSSION WITH FURTHER FINDINGS AND 

CONCLUSIONS OF LAW 

The 60-day period for filing a discrimination complaint under section '!05(c)(2) is not 

jurisdictional. Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff"d mem, 750 

F.2d 1093 (D.C. Cir 1984). The Commission has held that a "miner's late filing of a discrimination 

complaint may be excused on the basis of justifiable circumstances, including ignorance, mistake, 

inadvertence, and excusable neglect." Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 

1921-22 (Nov. 1996) (citations omitted). "[T]imeliness questions must be resolved on a case-bycase basis, taking into account the unique circumstances of each situation." Id. at 1922. 

In this case, Ms. Olson was well aware of the 60-day period for filing discrimination 

complaints. (Olson Dep. at 111-12, Ex. 2 of Motion; Olson Opposition at 8). She was fully aware 

of her section 105(c) rights. Ms. Olson contends that she delayed fiJing her complaint out of fear 

10 
that Jacobs Ranch would retaliate against her husband and her son. She did not file her complaint 

until her husband could no longer be adversely impacted by filing such a complaint. 

I find that Ms. Olson's stated reason for failing to file her complaint on a more timely basis is 

inconsistent with the facts. She had filed several other section 105(c) complaints while her husband 

Emmett was employed at the mine. At her deposition, Ms. Olson admitted that Emmett had not 

been threatened in any way after she filed those discrimination complaints. (Olson Dep. at 109-10, 

Ex. 2 of Motion). She did not express any specific reasons why she believed that Emmett would 

suffer any adverse action by the company as a result of her complaint, other than the fact that she no 

longer worked at the mine. In addition, her son did not apply for a job at the mine until after she 

filed her discrimination complaint in this case. (Olson Dep. at 6, Ex.2 of Motion). Olson sat on her 

rights knowing that she had an obligation to file her complaint in a timely manner. 

Mines are usually located in rural, sparsely populated areas with the result that close friends 

and relatives are often fellow employees as well. As a general matter, a miner cannot knowingly 

delay filing a discrimination complaint because she fears that the filing of the complaint may adversely 

affect friends and relatives who work at the mine. A delay may be justified upon a showing that the 

fear of serious reprisal can be supported by facts. Speculation that the relative may be the butt of 

jokes or teasing is not enough. I find that Olson's stated reason for not filing her complaint within 60 

days does not qualify as "excusable neglect." A vague, unsubstantiated concern that Emmett would 

"replace her as a victim of harassment and intimidation" is an insufficient justification for the knowing 

delay. (Opposition at 1-2). 

It is important to keep in mind that this case does not present a situation in which the 

complainant misunderstood the time constraints in section 105(c). In addition, Olson was not in any 

way misled about the filing requirements. Thus, the facts presented here are not at all similar to the 

examples set forth in the legislative history for excusing a late filing: "Circumstances which could 

warrant the extension of the time-limit would include a case where the miner within the 60 day 

period brings the complaint to the attention of another agency or to his employer, or the miner fails to 

meet the time limit because he is misled as to or misunderstands his rights under the Act." (S. Rep. 

95-181, at 36, reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative 

History of the Federal Mine Safety and Health Act of 1977, at 624 (1978)). 

"Even if there is an adequate excuse for late filing, a serious delay causing legal prejudice to 

the respondent may require dismissal." Perry, 18 FMSHRC at 1922 (citation omitted). The time 

limit was placed in section 105(c) to avoid "stale claims being brought." Legis. Hist. at 624. 

Jacobs Ranch maintains that it was prejudiced by the delay in this case. It states that during her 

deposition, Ms. Olson could not offer specific testimony regarding events that she maintains form the 

basis of her discrimination complaint. Respondent explains that Ms. Olson stated about 70 times 

during her deposition that she was unable to recall specific facts. 

11 
Moreover, two key witnesses for Jacobs Ranch, Chad Anderson and Robert Hammond, 

now live in Australia. Chad Anderson was the Human Resources Manager for Jacobs Ranch from 

July 23, 1998, until April 1, 2002. (Aff. of Stephan Carlisle, Ex. 1 of Motion). Robert Hammond 

was the General Manager at Jacobs Ranch from May 18, 1999, to May 1, 2001. Id. Anderson 

investigated the circumstances that led to Ms. Olson's termination and also investigated her 

discrimination complaint. The complaint that Ms. Olson filed with MSHA is short and simply states: 

"Chad Anderson said that I was fired for giving false information in a Kennecott investigation, I 

believe I was fired for filing 103s and 105s in the past." Although other individuals were involved in 

the events that led to her termination, Olson does not dispute that Anderson and perhaps Hammond 

made the ultimate decision to terminate her. (Olson Dep. at 186, Ex.2 of Motion). These two 

individuals would not be totally unavailable to testify at a hearing, but the passage of time and the fact 

that they live and work on the other side of the world will severely constrain the ability of Jacobs 

Ranch to defend its actions in this case. 

Ms. Olson's initial complaint filed with MSHA on February 16, 2001, is found to be 

excessively stale. The reasons set forth for the delay do not demonstrate any justifiable circumstance 

for the delay, such as excusable neglect, and Jacobs Ranch suffered at least some degree of legal 

prejudice because of the delay. 

III. ORDER 

For the reasons set forth above, the hearing in this case scheduled for February 19, 2003, is 

CANCELED; Jacobs Ranch Coal Company's motion to dismiss is GRANTED; and the complaint 

filed by Hazel Olson against Jacobs Ranch Coal Company under section 105(c) of the Mine Act in 

this case is DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

., 

Mark W. Nelson, Esq., Hall & Evans, 1200 171h Street, Suite 1700, Denver, CO 80202-5817 

(Certified Mail) 

Laura E. Beverage, Esq., Jackson Kelly, 1099 181

h Street, Suite 2150, Denver, CO 80202-1958 

(Certified Mail) 

RWM 

12 
FEDERAL M NE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LODESTAR ENERGY, INC., 

Respondent 

Washington, D.C. 20001 

January 28, 2003 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2002-184 

A. C. No. 15-14492-03877 

Docket No. KENT 2002-238 

A. C. No. 15-14492-03881 

Baker Mine 

DECISION 

Appearances: Thomas Grooms, Esq., Office of the Solicitor, U.S. Dept. of Labor, 

Nashville, Tennessee, on behalf of Petitioner; 

Before: 

Stanley Dawson, Esq., Fulton & Devlin, Louisville, Kentucky, 

on behalf of Respondent. 

Judge Melick 

These cases are before me upon Petitions for Civil Penalty filed by the Secretary of Labor, 

pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seq., (1994), the "Act," charging Lodestar Energy Inc. (Lodestar) with multiple violations and seeking 

civil penalties for those violations. The general issue before me is whether Lodestar has violated the 

cited standards as alleged and, if so, what is the appropriate civil penalty to be assessed considering the 

criteria under Section l lO(i) of the Act. Additional specific issues are addressed as noted. 1 

Citation No. 7647114 (Docket No. KENT 2002-238) 

Citation No. 7647114 alleges violations of an approved petition for modification and charges as 

follows: 

Only two citations remained at issue for disposition at hearing. Other citations in these 

dockets were the subject of a partial settlement decision issued October 22, 2002. Disposition of 

Citation No. 7646149 has been stayed pending approval of a settlement motion by the Bankruptcy 

Court. 

13 
The circuit breakers for the P65 and P53 roof bolters were not sealed 

breakers. This was observed on #3 unit located in the 23rc1 east gates. P65 

bolter was found to have approximately 599 feet of cable and the P53 roof 

bolter had approximately 744 feet of cable when measured. The instantaneous 

settings for the P65 breaker was set at 700 amperes and the P53 breaker was 

set at 300 amperes. These breakers were not sealed breakers set at 300 

amperes as required by page 2 of 101 c petition M-98-028-C. All circuit 

breakers used to protect the no.6 awg trailing cables that supply power to the 

Fletcher single boom roof bolters that exceed 550 feet in length shall have 

instantaneous trip units calibrated to trip at 300 amperes. The unit mechanic 

was not aware of said petition or of any requirements that the petition 

contained. The petition became final for this mine on 1115/1999. 

By way of background, Lodestar had petitioned the Secretary of Labor on March 18, 1998, for 

modification of the application of the standard at 30 C.F.R. § 75.503.2 The petition was granted on 

December 16, 1998, with certain conditions. (See Government Exhibit No. 7). In relevant part the 

order granting the petition provided as follows: 

GRANTED, for the extended length, 480-volt, three-phase alternating current 

trailing cables, used to develop the three and four entry longwall development panels at 

the Baker Mine, conditioned upon compliance with the following terms and conditions: 

1. The maximum length of the 480-volt, three phase alternating current 

trailing cables, supplying power to the Fletcher single boom roof bolters 

shall not exceed 750 feet in length and the trailing cable shaJl have a 90 

degree centigrade insulation rating. 

2. The trailing cable for the Fletcher single boom roof bolters shall not be 

smaller than a No. 6 A WG cable. 

3. All circuit breakers used to protect the No. 6 A WG trailing cables that 

supply power to the Fletcher single boom roof bolters that exceed 550 

feet in length shall have instantaneous ttip units calibrated to trip at 300 

amperes. 

4. The trip settings of these circuit breakers shall be sealed after they are 

2 The parties acknowledge that the modified standard more specifically involved 30 

C.F.R. Part 18, Table 9, which sets forth specifications for portable cables longer than 500 feet. 

14 
calibrated and these circuit breakers shall have permanent, legible 

labels. 

**** 

1. Within 60 days after this Proposed Decision and Order becomes final, 

the Petitioner shall submit proposed revisions for its approved 30 

C.F.R. Patt 48 training plan to the Coal Mine Safety and Health 

District Manager for the area in which the mine is located. These 

proposed revisions shall specify task training for miners designated to 

verify that the short-circuit settings of the circuit interrupting device(s) 

that protect the affected trailing cables do not exceed the specified 

setting in Item Nos. 3 and 5. The training shall include the following 

elements: 

A. The hazards of setting the short-circuit interrupting device(s) 

too high to adequately protect the trailing cables; 

B. How to verify that the circuit interrupting device(s) protecting 

the trailing cable(s) are properly maintained; 

C. Mining methods and operating procedures that will protect the 

trailing cable(s) against damage; and 

D. Proper procedures for examining the affected trailing cable(s) 

to ensure that the cables arc in safe operating condition. 

While conceding that it had successfully petitioned the Secretary, pursuant to Section lOl(c) of 

the Act, for modification of the application of the mandatory standard at 30 C.F.R. § 75.503, Lodestar 

baldly asserts, without citing any legal authority, that it may, in effect, thereafter choose at any time to 

accept or ignore the approved modification.3 Under the Secretary's standard implementing Section 

3 Section lOl(c) of the Act provides as follows: 

Upon petition by the operator or the representative of miners, the Secretary may modify the 

application of any mandatory safety standard to a coal or other mine if the Secretary determines that an 

alternative method of achieving the result of such standard exists which will at all times guarantee no less 

than the same measure of protection afforded the miners of such mine by such standard, or that the 

application of such standard to such mine will result in a diminution of safety to the miners in such mine. 

Upon receipt of such petition the Secretary shall publish notice thereof and give notice to the operator 

or the representative of miners in the affected mine, as appropriate, and shall cause such investigation to 

be made as he deems appropriate. Such investigation shall provide an oppo1tunity for a public hearing 

at the request of such operator or representative or other interested party, to enable the operator or 

the representative of miners in such mine or other interested party to present information relating to the 

15 
lOl(c) however, i.e., 30 C.F.R. § 44.4(c), once a petition for modification is granted, that granted 

petition is enforceable as a mandatory safety standard.4 The language of 30 C.F.R. § 44.4(c) is 

unambiguous and leaves no doubt that compliance with the granted modification is mandatory and not 

voluntary. Within the framework of the granted petition then, once the trailing cables supplying power to 

the Fletcher single boom roof bolters exceed 550 feet in length, the procedures set forth in the granted 

petition must be followed. 

The issue then, is whether Lodestar violated the terms of the granted petition. It is undisputed 

that when Robert Simms, an inspector for the Depattment of Labor's Mine Safety and Health 

Administration (MSHA), was at the mine premises on April 4, 2001, the trailing cables for the P-65 

and P53 Fletcher single boom roof bolters were 599 feet and 744 feet in length, respectively. In 

accordance with the terms of the granted petition for modification, Lodestar must therefore have set the 

amperage of the corresponding unit circuit breakers at 300 amperes, sealed the trip settings of these 

circuit breakers after they were calibrated and provided training in accordance with the terms of the 

granted petition. 

It is undisputed that the P-65 circuit breaker was set at 700 amperes and that there were no 

seals on either of the circuit breakers. It is also clear from the credible record that at least several 

employees working on the unit were not trained on the te1ms of the granted petition. Thus, all three of 

the violations have been proven as charged. In regard to the latter violation, Michael Smith, a Lodestar 

employee of 23 years and a unit mechanic for 17 years, testified that he was unfamiliar with the petition 

for modification al issue. Indeed , Smith acknowledged that the breakers had not been sealed in 23 

years and that he had periodically adjusted the settings on the circuit breakers without any knowledge 

as to the appropri ate amperage on those settings. I find this testimony credible and ce1tainly sufficient 

modification of such standard. Before granting any exception to a mandatory safety standard, the 

findings of the Secretary or his authorized representative shall be made public and shall be available to 

the representative of the miners at the affected mine. The Secretary shall issue a decision incorporating 

his findings of fact therein, and send a copy thereof to the operator or the representative of the miners, 

as appropriate. Any such hearing shall be of record and shall be subject to section 554 of Title 5. 

4 30 C.F.R. § 44.4(c), provides as follows: 

All petitions for modification granted pursuant to this part shall have only future effect: 

Provided, That the granting of the modification under this part shall be considered as a factor in the 

resolution of any enforcement action previously initiated for claimed violation of the subsequently 

modified mandatory safety standard. Orders granting petitions for modification may contain special 

terms and conditions to assure adequate protection to miners. The modification, together with any 

conditions, shall have the same effect as a mandatory safety standard. 

16 
to establish the third violation charged in the citation. 

The citation herein was issued by the Secretary, pursuant to Section 104(d)(l) of the Act.5 

Accordingly, the Secretary has the burden of proving that the violation was "significant and substantial" 

and the result of "unwa1nntable failure." A violation is properly designated as "significant and 

substantial" if, based on the paiticular facts surrounding that violation, there exists a reasonable 

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

Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal 

Co., 6 FMSHRC 1,3-4 (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 must prove: (1) the underlying 

violation of a mandatory safety standard, (2) a discrete safety hazard -- that is, a 

measure of danger to safety -- contributed to by_ the violation, (3) a reasonable 

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

lik~lihood that the injury in question will be of a reasonably serious nature. 

See also Austin Powder Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), ajfg 9 

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

The third element of the Mathies formula requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in which there is an injury (U.S. Steel 

5 Section 104(d)(l) provides as follows: 

"If, upon any inspection ·of a coal or other mine, an authorized representative of the Secretary 

finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, 

while the conditions created by such violation do not cause imminent danger, such violation is of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other mine 

safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety standards, he shall include such finding 

in any citation given to the operator under this Act. If, during the same inspection or any subsequent 

inspection of such mine within 90 days after the issuance of such citation, an authorized representative 

of the Secretary finds another violation of any mandatory health or safety standard and finds such 

violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith 

issue an order requiring the operator to cause all persons in the area affected by such violation, except 

those persons refeITed to in subsection (c) to be withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the Secretary determines that such violation has been 

abated." 

17 
Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such injury must be evaluated 

in terms of continued normal mining operations without any assumptions as to abatement. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984); See also Halfway, Inc., 8 FMSHRC 8, 12 

(January 1986) and Southem Ohio Coal Co., 

13 FMSHRC 912, 916-17 (June 1991). 

In her post-heating brief the Secretary argues in this regard that the first two violations alleged 

in the citation constitute a "significant and substantial" violation of the granted petition.6 The testimony 

of the issuing inspector in support of such a conclusion is deficient however in that he based his 

assessment of the event upon a mere "possibility" rather than the requisite "reasonable likelihood" 

standard. Charles Baird, Lodestar's maintenance foreman, also clearly had the more thorough 

knowledge of the mine's electrical system and his credible testimony further negates a "significant and 

substantial" finding. Accordingly, I do not find that the violation was "significant and substantial." 

While the Secretary also alleges that the violation was the result of Lodestar's "unwatTantable 

failure" to comply with the modified standard, that issue is now moot in the absence of a "significant and 

substantial" violation. See fn. 5. Nevertheless I find that the violation was the result of significant 

negligence. In this regard I find that Lodestar should have been on heightened awru·eness of the 

requirements of the granted petition having made significant efforts in filing the petition. It is noted, 

moreover, that the petition was grant~d more than two years before the citation at bar was issued. The 

undisputed testimony of Michael Smith, the unit mechanic, also clearly establishes operator negligence. 

Smith admitted that he had no knowledge of the requirements of the granted petition, that the breakers 

had not been sealed in 23 years and that he had periodically adjusted the settings on the circuit 

breakers without any knowledge as to the proper amperage. Lodestar's training of Smith was 

therefore clearly deficient and the result of its own negligence. The negligence of Smith, a rank-and-file 

miner, may therefore also be imputed to Lodestar for purposes of assessing a civil penalty, A. H. Smith 

Stone Co., 5 FMSHRC 13, 15 (January 1983); Southern Ohio Coal Co., 4 FMSHRC 1459 (August 

1982). 

Under all the circumstances, Citation No. 7647114 must be modified to delete the "significant 

and substantial" findings and modified to a citation under Section 104(a) of the· Act. 

Order No. 7647121 (Docket No. KENT 2002-184) 

6 In her post-hearing brief the Secretary does not argue or claim that the third violation 

charged in the citation - - i.e., failure to train the unit mechanic in the requirements of the granted 

petition - - constituted a "significant and substantial" violation. Accordingly any such allegation is 

deemed to have been waived. 

18 
Order No. 7647121, issued April 17, 2001, alleges a violation of the standard at 30 C.F.R. § 

75.342(a)(4) charges as follows: 

The methane monitor for the M21 miner located on #3 unit in the 23rd East 

gates was not being maintained in a proper operating condition. When 2.5 percent of 

methane was applied, the digital read out for the monitor showed 0.1 percent methane. 

The continuous miner had only cut approximately 10 feet from the 2 left face before the 

methane monitor was tested. It was determined by a maintenance foreman that the dust 

cap was stopped up. The methane monitor had been calibrated the shift before on 

4/17/2001 during an examination. 

The cited standard, 30 C.F.R. § 75.342(a)(4), provides in relevant part that "methane monitors 

shalJ be maintained in permissible and proper operating condition ... " MSHA Inspector Robert 

Simms testified that on April 17, 2001, while conducting an inspection at the subject mine, he observed 

that, as the continuous miner cut into the face on the No. 3 unit, its methane monitor was registe1ing 

zero methane. Simms found this to be suspicious because he had previously detected methane at a 

nearby location. He requested that the suspicious monitor be checked. A known 2.5% methane 

sample was presented to the sensing head of the monitor and the monitor registered .1 % methane. In 

Simms' presence, mechanic Barry Utley then cleared the dust cap covering the sensing head. This 

procedure did not correct the problem so Charlie Willett, the third shift maintenance boss, then helped 

change the sensing head. A known sample of methane gas was again presented and again the sensor 

failed to register correctly. According to Simms, Willett then cleaned the screen in the dust cap and 

washed it out with a spray. The sensor then worked properly upon testing. Since there is no dispute 

that the cited methane monitor for the M21 continuous miner was in fact not properly functioning, the 

violation is proven as charged. 

The Secretary also alleges that the violation was "significant & substantial" and the result of 

"unwarrantable failure." The analysis to establish a "significant and substantial" violation has previously 

been discussed. In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the 

Commission determined that "unwarrantable failure" is aggravated conduct constituting more than 

ordinary negligence. This determination was derived, in part, from the plain meaning of "unwa1Tantable" 

("not justifiable" or "inexcusable"), "faj]ure" (neglect of an assigned, expected or approp1iate action"), 

and "negligence" (the failure to use such care as a reasonably prudent and careful person would use, 

and is characterized by "inadvertence," "thoughtlessness," and "inattention"). 9 FMSHRC at 2001. 

Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional 

misconduct," indifference" or a "serious lack of reasonable care." 9 FMSHRC at 2003-04; Rochester 

& Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94 (February 1991). The Commission has also 

stated that use of a "knew or should have known" test by itself would make unwarrantable failure 

indistinguishable from ordinary negligence, and accordingly, the Commission rejected such an 

interpretation. A breach of a duty to know is not necessarily an unwan-antable failure. The thrust of 

Emery was that unwarrantable failure results from aggravated conduct, constituting more than ordinary 

19 
negligence. Secretary v. Virginia Crews Coal Co., 15 FMSHRC 2 103, 2107 (October 1993). 

According to Inspector Simms, after the monitor was properly functioning, he returned to the 

surface and checked the operator's examination books. It is undisputed that it was reported in the 

books that the monitor had been calibrated the night before. It is undisputed that only 10 feet to 15 

feet of coal had been cut since the purported calibration. Simms concluded however that the amount of 

dust in the dust cap was in excess of the amount that should have been there based on the amount of 

mining that had occurred. Simms opined that this amount of mining could not have caused the 

monitor's dust cap to have become so clogged. 

Charlie Willett was the maintenance foreman on the subject shift. According to Willett they 

replaced the sensing head (sniffer) and blew out the dust cap. He could not recall whether he sprayed 

any water onto it. Willett claimed at hearing that the dust cap was not in fact clogged and that he only 

blew through it. He denied that he told Simms that the dust cap was clogged and maintained that he 

only said that it was "possible" that it was stopped up. Willett noted that sensors break down all the 

time. 

Lodestar argues that it was the sensor that was defective and that since sensors break down all 

the time Lodestar suggests that the defect had occuJTed only shortly before it was discovered by the 

inspector. I do not find this scenatio credible, however, in light of the undisputed sequence of events 

cited by Inspector Simms. According to that sequence, after the defect was discovered, the sensor 

was replaced and the monitor still did not function. It was only after the dust cap was then cleaned that 

the monitor began properly registering methane. Thus, whether or not the sensor was defective, the 

dust cap was in fact so clogged that it prevented any methane from reaching the sensor. Considering 

that only one cut of coal of about 10 to 15 feet had been taken since the monitor had been calibrated 

and repo1ted in the corresponding examination book and considering Simms' unchallenged testimony 

that the dust generated by this limited cut would not be sufficient to clog the sensor to the extent found, 

it may reasonably be inferred that the defect in the monitor had existed prior to the time it was reported 

as calibrated in the examination book. This is evidence of gross negligence and "unwarrantable failure." 

As noted, the Secretary also alleges that the violation was "significant and substantial." In this 

regard the following colloquy occurred at hearings: 

Q. Mr. Simms, you marked this 104(d)(l) order as being characterized - - the 

gravity being characterized as significant and substantial. Why did you do that, sir? 

A. Because the methane monitor - - 2 V2 percent methane was applied and 

would not read but .1. 

Q. Are you saying 1/10? 

20 
A. One tenth of one percent, .1. The No. l and the No. 2 units had been 

liberating methane earlier between the 4th and the 17th when I had visited those other 

two units. There's an increased likelihood that with the methane monitor not working 

and them up in the face cutting coal, it would be possible to cause an ignition. 

Q. How would that happen? 

A. The churning of the bits against the mine roof and the face. The methane 

accumulation not being detected by a bad sensor and the sparking of the bits could 

possibly cause an ignition. 

Q. Now, I think it's probably known by the Judge as many cases as he's 

heard, but what's the methane monitor supposed to do? 

A. The methane monitor is supposed to give a warning of l percent and knock 

the power at 2 percent. 

Q. An explosive range is 5 percent to 15 percent? 

A. Yes. 

(Tr. 219-220). 

To find a violation "significant and substantial" there must be a finding of a "reasonable 

likelihood" of injury. The inspector's testimony that an ignition was "possible" is therefore not sufficient. 

In addition, Lodestar section foreman Varney Coleman opined that the likelihood of a methane ignition 

here was "very very slim." Lodestar compliance coordinator Kevin Vaughn testified that, of the 13 

prior violations of this standard cited by MSHA, the only one found to be "significant and substantial" 

was the one at issue herein. Vaughn opined that injuries were not likely to occur on the facts herein. 

He observed that many circumstances must come together to result in an explosion. In this regard he 

noted that a place is only cut for 15 minutes and then the continuous miner is moved. He further noted 

that methane was unlikely because of water sprays, adequate ventilation, the scrubber and the fact that 

the area is checked for methane before mining. 

Under all the circumstances I am not satisfied that the Secretary has sustained her burden of 

proving the violation herein to be "significant and substantial." 

Civil Penalties 

Citation No. 7647114 - considering the high negligence and moderate gravity of the violation, 

the fact that the violation was abated in good faith, that the operator is large in size, that it has a 

21 
significant history of prior violations, and that it has been stipulated that the penalty would not effect the 

ability of the operator to remain in business, I consider a civil penalty of $1,000.00, appropriate. 

Order No. 7647121 - considering the high negligence, moderate gravity, good faith abatement 

of the violation, the large size operator, the significant history of violations and the 

fact that it has been stipulated that the penalty would not effect its ability to remain in business, I find a 

civil penalty of $1,000.00, appropriate. 

ORDER 

Citation No. 7647114 is hereby modified to delete its "significant and substantial" findings and 

modified to a citation under Section 104(a) of the Act. Lodestar Energy Inc., is directed to pay a civil 

penalty of 1,000.00, within 40 days of the date of this decision for the violation charged therein. Order 

No. 7647121 is hereby modified to delete the "significant and substantial" findings. Lodestar Energy 

Inc., is directed to pay a civil penalty of $1,000.00, within 40 days of the date of this decision for the 

violation charged therein. 

Distribution: (Certified Mail) 

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd., 

Suite B-201, Nashville, TN 37215 

Stanley Dawson, Esq., Attorney at Law, Fulton & Devlin, 2000 Warrington Way, Suite 165, 

Louisville, KY 40222 

\ mca 

22 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

DALLAS CROASMUN, 

Complainant 

v. 

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

Washington, O.C. 20001 

January 29, 2003 

DISCRIMINATION PROCEEDING 

Docket No. PENN 2002-162-D 

PI1T CD 2002-02 

CONSOL PENNSYLVANIA COAL CO., 

Respondent 

Enlow Fork Mine 

Mine ID 36-07 416 

DECISION 

Appearances: Michael J. Healey, Esq., Healey & Hornack, Pittsburgh, Pennsylvania, 

and Gregory Hook, Esq., Hook & Hook, Waynesboro, Pennsylvania, 

on behalf of Complainant; 

Carl J. Smith, Jr., Esq., Richman & Smith, Washington, Pennsylvania, 

on behalf of Respondent. 

Before: Judge Melick 

This case is before me upon the complaint of discrimination filed by Dallas Croasmun, pursuant 

to Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. 

(1994) the "Act," alleging that he was discharged on March 8, 2002, by the Consol Pennsylvania Coal 

Company (Consol) in violation of Section 105(c)(l) of the Act. 1 In particular, in his initial complaint to 

Section 105(c)(l) of the Act provides as follows: 

No person shaJI discharge or in any manner discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, 

representative of miners or applicant f9r employment in any coal or other mine subject to this Act 

because such miner, representative of miners or applicant for employment has filed or made a complaint 

under or related to this Act, including a complaint notifying the operator or the operator's agent, or the 

representative of the miners at the coal or other mine of an alleged danger or safety or health violation in 

a coal or other mine, or because such miner, representative of miners or applicant for employment is the 

subject of medical evaluations and potential transfer under a standard published pursuant to section 101 

or because such miner, representative of miners or applicant for employment has instituted or caused to 

be instituted any proceeding under or related to this Act or has testified or is about to testify in any such 

proceeding, or because of the exercise by such miner, representative of miners or applicant for 

employment on behalf of himself or others of any statutory right afforded by the Act. 

23 
the Department of Labor's Mine Safety and Health Administration (MSHA), Mr. Croasmun alleges 

that he "became aware that the real reason [for his discharge] was a statement made the week of 

February 18, 2002, that I would no longer continue to send people on an elevator that I did not feel 

was safe to operate." Croasmun seeks reinstatement and damages including an award for back pay.2 

Croasmun has worked in the mining industry since 1976 and holds a number of state 

certifications including those for mine foreman, maintenance foreman and mine superintendent. He has 

also received specific training in elevator repairs and inspections. During relevant times he was the 

sutface maintenance supervisor at the Enlow Fork Mine. In that capacity he was in charge of 

autho1izing all repairs on the sutface and authorizing purchase orders for equipment in amounts up to 

$5,000.00. 

According to Croasmun, a new elevator was being installed at the 3 North Portal beginning in 

mid 200 l. The elevator was tested and inspected by the state and was placed in service on December 

15, 200 l. At that time 400 miners were using the elevator each day. The elevator holds 35 miners 

and has a weight load of 9,000 pounds. It transpo1ts personnel between the sutface and 600 feet 

underground at a speed of 600 feet per minute. There is no dispute that the elevator continued to have 

problems with unexpected stoppages. These stoppages, known as "tripping," were caused by overspeeding which triggered the safety devices. According to Croasmun, the elevator was tripping dozens 

of times per shift and that he had therefore stationed a person at the elevator to override the faults. 

Croasmun testified that on some occasions he had to adjust or disable safety devices in order to 

override the tripping mechanism. State and federal inspectors were aware of the problems and, 

whenever the elevator was down for 30 minutes or more, state officials were contacted pursuant to 

state requirements. The problems continued into January and, in the latter part of that month, a meeting 

was held with the various elevator contractors to discuss those problems. The contractors were 

advised by Croasmun at this meeting that payments under their contracts would be withheld until the 

problems were corrected. Croasmun maintains that he kept mine superintendent Thomas Coram, 

apprised of the elevator problems. 

The problems continued and a second meeting was held among Consol officials without any 

contractors present. Croasmun maintains that he told everyone at the meeting that the elevator was 

unsafe.3 Others at the meeting, including Lou Barletta, felt that it could never be fixed and should be 

replaced. According to Croasmun, only Consol electrical engineer John Burr believed the elevator 

could be operated. Croasmun also maintains that later the same or the next day he told Coram, with no 

one else present, that he would no longer send people on the elevator and that he did not feel it was 

2 These proceedings have been bifurcated so that issues regarding damages have been 

defe1rnd. 

3 Croasmun also prepared a list of specific problems with the elevator which he maintains 

was presented at the January and February meetings (See Exh. C-13). 

24 
safe to operate. Coram purportedly did not respond. Croasmun acknowledged however that he 

continued to try to repair the elevator and never in fact prevented anyone from using it. He fwther 

acknowledged that he never filed a "Section 103(g)" complaint regarding the elevator. At the 

conclusion of the meeting, Rick Weaver and Tim Shell were to remedy the elevator problems by 

carrying out the proposal set fo1th in Exhibit C-14. 

Edward Kocerka, an electrical engineer for Integrated Mill Systems Inc., testified that 

Croasmun complained to him in February 2002, of an unreliable elevator and asked him to check it out. 

During the six hours Kocerka observed the elevator, it tripped and came to a sudden stop at least three 

times. Another contractor employee was on-site to return the elevator to service. Following his study, 

Kocerka presented Croasmun with a repair estimate (Exh. C-1). Consol had not yet responded to his 

proposal. 

On February 24, Croasmun left for a business related conference in Phoenix, Arizona, and for 

a vacation in Las Vegas. Upon returning to his office on March 5, he noted that his desk had been 

broken into, his papers were strewn about, a ledger was missing and a note was left on his desk 

directing him to see Superintendent Coram. Croasmun proceeded to Coram's office and maintains that 

Coram immediately confronted him about a load of belt that had been removed from the property on 

February 20111 or 21st and said that someone was going to federal prison for what he had done. 

According to Croasmun, Luke Gianato, Consol's supervisor of human resources then entered the 

office. Croasmun testified that he told Coram that he had given the belt to a truck driver. Croasmun 

admitted that this statement was a lie. He did not then tell Coram that he had traded the belt in return 

for services performed by a Consol contractor nor did he suggest calling the contractor to confirm that 

the belt was indeed payment for services. Croasmun claimed at hearing that he had arranged with one 

of Consol's contractors, B&M, to exchange the used belt to pay for services pe1fo1med by that 

contractor. Croasmun conceded that this agreement was not in writing and that there were no specific 

terms for the transaction. He claimed that trading used belt to pay contractors had been done before 

and that former mine superintendent, Jim Mccaffrey, had engaged in similar transactions.4 

At hearing, Croasmun maintained that on February 21, 2002, he had nine rolls of used belt 

loaded onto a truck driven by Greg Lemley. Lemley had been hired by Melinda White of B&M. 

Croasmun admits that he told the guard at the mine gate that he had completed the paperwork and that 

Lemley was authorized to leave mine property with the belt. At heating, Croasmun also acknowledged 

that he knew the belt was going to be sold to Tracy Yarber, and that the proceeds would go to Melinda 

White. He maintained that he had no idea how much Melinda White was to be paid for the belt but 

4 McCaffrey testified that as former mine superintendent he once initiated an exchange 

with the Conveyor Services Company of used conveyor belt for new belt. It was handled however by 

Consol's purchasing group. According to McCaffrey, Croasmun was not authorized to perform such 

transactions. 

25 
that Consol owed her a little over $10,000.00. According to Croasmun, he expected that White would 

report to him how much she obtained for the belt and that if it was more than $10,000.00, she would 

owe Consol additional services to make up the difference. 

Following the meeting with Coram, Croasmun was told to go home. On March 8, 2002, 

Croasmun again met with Coram and Gianato, at which time he was told that he was being fired for 

violating company Rule No. 8, i.e., for theft. Croasmun acknowledges that at no time did he tell Coram 

that he was actually being fired because of his complaints about the safety of the elevator. 

Pennsylvania mine inspector Thomas Schumaker testified that he was the regular inspector of 

the Enlow Fork Mine. According to Schumaker, state procedures require that when a mine elevator is 

out of service for 30 minutes, it must be reported to the state. He had received such a report on March 

4, 2002. Schumaker noted that since the elevator is the primary route of the escape in the event of an 

emergency, if it is not functioning it removes a means of escape from the mine. It may reasonably be 

inferred from this testimony that when the elevator was not functioning miner safety was indeed 

compromised. 

This Commission has long held that a miner seeking to establish aprimafacie case of 

discrimination under Section l05(c) of the Act bears the burden of persuasion that he engaged in 

protected activity and that the adverse action complained of was motivated in any part by that activity. 

Secretary on behalf of Pasula v. Consolidated Coal Co., 2 FMSHRC 2786, 2797-2800 (1980), 

rev'd on grounds, sub nom. Consolidated Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); 

and Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (1981). 

The operator may rebut the primafacie case by showing either that no protected activity occurred or 

that the adverse action was in no part motivated by the protected activity. If an operator cannot rebut 

the primafacie case in this manner, it may nevertheless defend affirmatively by proving that it would 

have taken the adverse action in any event on the basis of the miner's unprotected activity alone. 

Pasula, supra; Robinette, supra. See also Eastern Assoc., Coal Corp. v. FMSHRC, 813 F.2d 639, 

642 (4th Cir. 1987); Donovan v. Stafford Construction Co., 732 F.2d 194, 195-196 (6th Cir. 1983) 

(specifically approving the Commission's Pasula-Robinette test). Cf. NLRB v. Transportation 

Management Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical test under National 

Labor Relations Act.) 

From the record in this case I conclude that indeed, Croasmun engaged in protected activity by 

complaining of the unreliability of the north po1tal elevator. This is credibly established through the 

testimony of electrical engineer Edward Kocerka and by the clear evidence that the reliability of that 

elevator was discussed at the February 18, 2002 meeting of Consol officials. The problem with the 

elevator was, however, common knowledge among Consol personnel and it appears that many Consol 

employees were complaining about it. It is accordingly highly unlikely that retaliation would only have 

been against taken maintenance supervisor Croasmun. 

26 
Croasmun also alleges however, that he made a specific complaint to mine superintendent 

Coram, following the February 18111 meeting that was of such a provocative nature, i.e., that he would 

no longer send personnel on the elevator because it was unsafe, as to illicit a retaliatory response. 

However I do not find Croasmun's representations in this regard to be credible. First, Coram denied 

that any such exchange ever occutTed. Second, Croasmun admits that he never did prevent anyone . 

from using the elevator nor did he ever shut the elevator down. Third, Croasmun's supervisor, Mike 

Stewart, testified that he himself had shut down the elevator because of safety concerns and no 

retaliatory action was taken against him. FinalJy, the credibility of Croasrnun's testimony in this regard 

is severely impacted by his admissions that he lied to Coram regarding his patt in the ostensible theft ~f 

Consol property. Within this framework of evidence, I conclude that the discharge was not motivated 

by protected activity. 

In reaching this conclusion I have not disregarded Croasmun's claims that unlawful motivation 

may be inferred by the relatively close proximity in time between his protected activity, purportedly on 

February 18, 2002, and his suspension on March 5, 2002, and his discharge on March 8, 2002. 

However any such inference is completely negated and superceded by the intervening discovery of 

Croasmun's apparent participation in the theft of Consol property. Moreover, even assuming, 

arguendo, that Consol had been motivated in part by Croasmun's protected activity, Consol presented 

overwhelming evidence to support the affirmative defense that it was also motivated by Croasmun's 

unprotected activity (apparent paiticipation in the theft of Consol propetty) and that it would have taken 

the adverse action for the unprotected activity alone. See Pasula, 2 FMSHRC at 2799-800; See also 

Eastern Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642-43 (4111 Cir. 1987) (applying 

Pasula-Robinette test). 

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June 1982), the Commission 

discussed several indicia of legitimate non-discriminatory reasons for an employer's adverse action - -

including the violation of personnel rules forbidding the conduct in question. The Commission has also 

stated that an affirmative defense should not be "examined superficially or be approved automatically 

once offered," Haro v. Magma Copper Company, 4 FMSHRC 1935, 1938 (November 1982), and 

has fu1ther enunciated that in reviewing affirmative defenses, the judge must "determine whether they 

are credible and, if so, whether they would have motivated the particular operator as claimed." 

Bradley, 4 FMSHRC at 993. Consol in this case has established such an affirmative defense by 

abundant credible evidence. Clearly it was motivated to dischai·ge Croasmun by evidence of his 

patticipation in the theft of Consol property. 

In this regard I first note the credible testimony of Consol warehouse supervisor Steven 

Crouse. Crouse saw the rolls of conveyor belt being loaded onto a trailer on February 21, 2002. A 

Consol employee also told Crouse that truck driver Lemley later told him that he could not remember 

where he had taken the nine rolls of belt. Crouse then checked to determine whether the proper 

paperwork had been filed in the shipping warehouse. According to Crouse, a copy of the form, MM18, must be filed at his warehouse for anything that leaves mine property. The form must also be signed 

27 
by the superintendent. There was no such form in the warehouse file. Crouse then reported his 

suspicions to superintendent Coram. 

Coram testified that Crouse reported to him around February 281

h that belt had been removed 

from mine property under suspicious circumstances. Private Investigator Ronald Pearson was then 

called. Pearson testified that he was asked by Coram on March 4, 2002, to investigate the 

disappearance of the belt. After his investigation, Pearson reported back to Coram and Gianato on 

March 5 and 6. According to Pearson, Croasmun told the mine security guard that the paperwork had 

been taken care of and that he was to permit the truck to drive onto mine property and remove the belt. 

An employee of B&M contracting, George Kelly, told Pearson that he and Croasmun put red numbers 

on the belt to be loaded onto Lemley's truck. Kelly was also told by Croasmun that the paperwork 

had been taken care of. Truck driver Greg Lemley told Pearson that he picked up the belt as a favor 

to the mine and that he delivered it to Yarber. Yarber purportedly wrote checks for 5,000.00 and 

$4,800.00, payable to Melinda White, and gave them to Lemley to return to Pennsylvania. Pearson 

attempted to obtain relevant records from Melinda White but she refused to produce them. 

Luke Gianato, Consol's supervisor of human resources, was present with Coram at the March 

5 meeting with Croasmun. According to Gianato, Coram made no threats or statements to the effect 

that someone would go to jail over the matter. Coram merely stated to Croasmun that the belt had left 

mine property without authorization and that they were trying to find out what happened. According to 

Gianato, Croasmun explained that he had given the belt to Lemley to use for horse stalls in his barn 

because Lemley had done favors for him. At the end of the meeting, Croasmun was told to go home 

and stay off mine propetty until contacted. Gianato was also present at the March 81

h meeting. Coram 

asked Croasmun if he had anything else to say and Croasmun responded: "do I have to destroy others 

to save myself?" Coram then told Croasmun that he was terminated and that he was not to return to 

Consol property. 

Superintendent Coram con-oborated Gianato's testimony concerning the March 5 and March 8 

meetings. According to Coram, Croasmun never recanted his statement at the March 5 meeting that he 

gave the belt to Lemley in return for favors and that Lemley purportedly wanted the belt for barn stalls. 

Coram further testified that Croasmun had no authority to trade the belt. Coram maintains that he in 

fact did not recommend that Crouse be discharged but merely passed the investigative results on to 

higher officials. He subsequently learned from Consol's manager of human resources, Mark Hurtkey, 

that the decision to terminate Croasmun had been made. The March ·81

h meeting with Croasmun 

followed, and he then informed Croasmun of the decision to terminate. 

Within this framework of evidence it is clear that Consol officials had, at the time of 

Croasmun's discharge, possession of credible evidence that Croasmun had participated in the theft of 

Consol property and that he had lied about it. Under these circumstances I have no 

difficulty concluding that, even had Consol been motivated in part by protected activities, it clearly 

would have discharged Croasmun for his unprotected activities alone. 

28 
Under the circumstances this discrimination case must be dismissed. 

ORDER 

Discrimination Proceeding Docket No. PENN 2002-162-D, is hereby dismissed. 

Distribution: (Certified Mail) 

Gregory Hook, Esq., Hook & Hook, 189 W. High Street, P.O. Box 792, Waynesboro, PA 15370 

Michael J. Healey, Esq., .Healey & Hornack, 429 Fourth Ave., 5th Floor, Law & Finance Bldg., 

Pittsburgh, PA 15219 

Carl J. Smith, Jr., Esq., Richman & Smith, Attorneys at Law, LLP, 200 Washington Trust Bldg., 

Washington, PA 15301-6820 

/mca 

29 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

January 31, 2003 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2002-46 

A. C. No. 46-01271-03852 

EASTERN ASSOCIATED COAL CORP., 

Respondent 

Harris No. 1 

DECISION 

Appearances: Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, 

Virginia, for Petitioner; 

R. Henry Moore, Esq., Buchanan Ingersoll, PC, Pittsburgh, Pennsylvani a, for 

Respondent. 

Before: Judge Hodgdon 

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

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

Associated Coal Corporation, pursuant to section 105 of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 81.5. The petition alleges four violations of the Secretary's mandatory health and 

safety standards, one violation of the Secretary's mandatory training regulations and seeks a penalty of 

$1,473.00. A hearing was held in Charleston, West Virginia. 1 For the reasons set forth below, I 

vacate three citations, affirm the other two and assess a civil penalty of $874.00. 

Back~round 

Eastern Associated Coal Corporation operates the Harris No. 1 Mine, an underground coal 

mine in Boone County, West Virginia. The mine produces 3.9 million tons of coal per year. 

1 The record was kept open to admit two depositions that the parties were to take subsequent 

to the hearing. (Tr.422-25.) The depositions of Tyler Pawich and Joseph Deoskey were filed as 

Government Exhibits 15 and 16 and are admitted as such. 

30 
In October 2001, Eastern was planning to use the No. 4 entry in the mine's 4 East section to 

set up the face conveyor and shield for a longwall mining machine. To do this, it was necessary that the 

entry be 24 feet wide. However, because of a roof fall in the entry one crosscut outby, the entry had 

been naffowed to 18 feet and longer roof bolts had been installed in the roof. Because the roof was 

determined to be layered and had cracks in it, the company decided to have polyurethane grout 

injected into the roof as additional support before widening the entry to the necessary 24 feet.2 

The Respondent hired ESS!Micon, a company that specializes in injecting the roof grout, to 

perform that function for it. At about 5:10 a.m., during the midnight shift on October 17, 2001, two 

Micon employees, Joe Deoskey and Tyler Pawich, were "gluing" the roof when two pieces of the roof 

fell and struck Pawich. The first, smaller piece hit him in the head, stunning him and knocking him to the 

ground. Then, a larger piece landed on his right knee, crushing it and pinning him to the ground. 

Pawich received emergency treatment and was transported from the mine. 

Two MSHA inspectors, David Sturgill and T. L. Workman, began conducting an investigation 

of the accident around 10:00 a.m. on the 17th. After viewing the accident scene and interviewing 

witnesses, the five citations being contested in this proceeding were issued. 

Findings of Fact and Conclusions of Law 

Citation No. 7195725 

This citation charges a violation of section 75.21 l(d), 30 C.F.R. § 75.211 (d), in that: 

During an [sic] non-fatal accident investigation it was 

determined that a proper tool was not used for taking down loose 

rib/roof materials. Bars provided for taking down loose mate1ial shall 

be of a length and design that will allow the removal of loose material 

from a position that will not expose the person performing this work to 

injury from falling material. 

(Govt. Ex. 4.) Section 75.2ll(d) provides that: 

A bar for taking down loose material shall be available in the 

working place or on all face equipment except haulage equipment. 

Bars provided for taking down loose material shall be of a length and 

2 The grout seeps into the cracks and open spaces in the roof and sets up like a glue to hold 

the roof together. 

31 
design that will allow the removal of loose material from a position that 

will not expose the person performing this work to injury from falling 

material. 

The evidence on this citation is undisputed. Joe Deoskey, the senior Micon employee, admitted 

that he scaled down loose roof and rib with a piece of drill steel. He said that he did not look for a 

scale bar nor did he ask any Eastern employee for one. Eastern miners testified that there was a scale 

bar on the roof bolting machine in the No. 3 entry. They also testified that one was available on the 

continuous miner on the section and at the tailpiece. 

The regulation requires that the bar be available in the working place or on the face equipment. 

The bar was clearly available on the face equipment. That is all the regulation requires. It does not 

prohibit using a drill steel to scale loose rocks. If Deoskey had bothered to try to obtain a scale bar he 

would have been able to. Consequently, I conclude that the Respondent complied with this regulation 

and will vacate the citation. 

Citation No. 7195727 

This citation alleges a violation of section 75.360(f), 30 C.F.R. § 75.360(f), stating that: 

(Govt. Ex. 2.)3 

A proper pre-shift examination for the MMU 064-0 section 

was not conducted and recorded for the evening shift of 10-16-2001 

for the oncoming midnight shift working 10-17-2001. 

Several hazardous conditions were discovered during an [sic] 

non fatal accident investigation, that were obvious. 

The approved roof control plan was not complied with during 

the grouting of the mine roof by employees of contractor ESS/Micon 

QK5[.] Supplemental supports were not installed within a 15 foot 

radius of holes already grouted and current holes being grouted at time 

of accident, sag devices were not used as per the plan[,] page 30[,] 

Part E[,] No. 1, 2, and 3. · 

A kettle bottom measuring 10 inches by 10 inches of 

undetermined thickness was present in the No. 4 entry just outby left of 

half crib without additional support being installed. 

3 The citation was amended on July 3, 2002, to change the regulation alleged to have been 

violated from section 75.363(b), 30 C.F.R. § 75.363(b). (Govt. Ex. 2, p. 3.) The Secretary's motion 

to amend the citation was granted, over the Respondent's objection, at the hearing. (Tr. 6-10.) 

32 
Section 75.360(f) requires that: 

A record of the results of each preshift examination, including a 

record of hazardous conditions and their locations found by the 

examiner during each examination and the results and locations of air 

and methane measurements, shall be made on the smface before any 

persons, other than certified persons conducting examinations required 

by this subpart, enter any underground area of the mine. 

This citation was issued based on the inspectors' view of the entry some 11 hours after the 

preshift examination was completed and after the accident had occurred. They did not interview the 

miner who conducted the preshift examination. (Tr. 211, 272.) They also apparently did not question 

any other miners concerning the condition of the No. 4 entry during the preshift examination. (Tr. 133.) 

The evidence does not support the inspectors' conclusion that what they observed sometime after 

10:00 a.m. on the 17th was present during the preshift examination on the evening of the 16th. 

Everyone agrees that grouting was performed during the midnight shift on October 16 and 

during the midnight shift on October 17 and that it was not petformed during the morning or afternoon 

shifts on October 16. The Respondent's Roof Control Plan requires that temporary roof supports be 

installed on five foot centers within a minimum radius of 15 feet around the injection hole during 

injection and for at least one hour after completion of injection. (Govt. Ex. 6, p.30.) Since no injecting 

was going on at the time that the preshift examination was performed, and more than one hour had 

elapsed since the completion of the last injection on the previous midnight shift, the failure to have 

temporary roof supports installed was not a violation of the plan and their absence was not an obvious 

hazard. 

Similarly, the plan calls for the installation of at least two sag devices "du1ing injection." (Govt. 

Ex. 6, p.30.) As no injection was being performed during the preshift examination, not having sag 

devices was neither a violation of the plan nor their absence an obvious hazard. 

Whether the kettle bottom was an obvious hazard is problematical. Inspector Sturgill testified 

that "[i]t wasn't easy to see." (Tr. 45.) Inspector Workman did not notice it until he was advised to 

watch out for it. (Tr. 168, 373-74.) This testimony is all the more significant because at the time the 

inspectors were in the area, the accident had occurred and they were looking at the roof to see where 

the fall had happened. 

Donnie Stafford, the section foreman who pe1formed the preshift examination, testified that he 

visually examined the roof in the No. 4 entry. He stated: 

33 
I looked at the roof in there. I didn't see anything abnormal that hadn't 

been there, you know, the previous times that I had been in there and I 

saw no need to - I didn't see anything. 

Q. Did you see any kettle bottoms by that half crib that was in the 

center of the entry? 

A. No, I did not. 

Q. What would you have done if you had seen a kettle bottom? 

A. Well, I'd either brung [sic] a bolt crew over there and put a bolt in 

it or dangered the entry off so somebody else would. 

(Tr. 270-71.) Ed Laxton, who performed an on-shift examination of the No. 4 entry at about 12.45 

a.m., testified that "the roof conditions looked pretty good. There was some cracking at the right-hand 

rib. I did not observe anything hazardous, no kettle bottoms, nothing like that." (Tr. 232.) 

Finally, Deoskey testified that he observed the kettle bottom while drilling injection holes before 

the accident. He said that the kettle bottom "was obvious because I was up there to drill a hole. When 

I went up to drill a hole, I looked on the right and it was there. If I wouldn't have drilled a hole there, I 

probably wouldn't have seen it." (Govt. Ex. 16 at 45.) He later appeared to state that if one were 

performing a preshift exam the kettle bottom would have been easy to see. (Govt. Ex. 16 at 45-6.) It 

is not clear, however, whether he meant that it was easy to see from where he was up drilling a hole, or 

whether he meant it was easy to see from the floor. If he meant the latter, then his testimony is 

inconsistent and cannot be reconciled. Deoskey's testimony is further impeached by his statement that 

he told Pawich to look out for the kettle bottom. (Govt. Ex. 16 at 24.) Pawich claimed that while he 

had heard of kettle bottoms, he had never seen one and did not know if there was a kettle bottom in the 

No. 4 entry. (Govt. Ex. 15 at 22.) 

The state of the evidence, then, is that no one saw the kettle bottom until Deoskey did when he 

was on a ladder drilling a hole right next to it. However, his testimony cannot be relied upon as to 

whether it was obvious or not. Since there is no direct evidence to contradict Stafford's and Laxton's 

claims that they did not observe a kettle bottom, I conclude that if it was present during the preshift 

examination, it was not, based on the inspectors' observations a half day later, immediately obvious. 

Perhaps realizing the weakness of the case as set out in the citation, the Secretary now argues 

that there were adverse roof conditions, specifically cracks, broken top, loose and hanging roof, loose 

rib, and water running out of the roof, which should have been repo1ted by the preshift examiner. 

Disregarding the questionable practice of the government expressly detailing specific "obvious 

hazardous conditions" in a citation and then ambushing the Respondent with additional allegations at the 

34 
hearing, I find that the Secretary has not proved that these were obvious hazards that should have been 

discovered. 

Inspector Sturgill testified that on an-iving at the No. 4 entry he "observed water coming from 

the top, a 1ib roll, which is where the rib was pulled out I found out later, cribs in the area, water on the 

bottom, a half crib was constructed." (Tr. 44.) He later added that there were cracks in the roof. (Tr. 

50.) Inspector Workman testified that there was "loose roof' which had not been scaled down. (Tr. 

180.) 

In considering these allegations, it must be kept in mind that the roof in the No. 4 entry had 

been extensively roof bolted and had four cribs providing additional suppo1t. (Resp. Ex. 21.) 

Inspector Workman .testified in describing the roof conditions that he observed in the No. 4 entry on 

November 15: "They looked just about like they did when I was there before. I mean they had some 

little breakage here and there, but, just as I said, they had already put additional bolts in, and that's 

what the law says, when it's encountered, then additional support shall be installed." (Tr. 156 

emphasis added.) Clearly, the company was instaJling additional support as needed. There is nothing to 

suggest that by the next day the roof top was drastically different than the one Workman saw on the 

15th. 

In addition, it appears that much of the water coming out of the roof, was either on one side or 

coming out around the roof bolts. The two examiners were aware of the water, but did not consider it 

a hazard. (Tr. 254, 275-76.) In this connection, Inspector Sturgill agreed that water coming out of the 

roof is not always something that has to be recorded in the preshift book. (Tr. 112.) 

Further, the Secretary does not contend that the cribs were a hazard.4 The rib roll "was loose 

rock encountered there and they pulled it so it wouldn't be a falling hazard." (Tr. 48.) Therefore, the 

roll itself was not a hazard. 

Finally, as noted above, the conditions in the No. 4 entry that were observed by the inspectors 

were those that existed after a roof fall. Thus, the conclusion that the same conditions were present 

during the preshift examination is conjectural at best. Furthermore, if these conditions were so 

obviously hazardous, it is curious that they were not listed in the citation, or the inspectors' notes. 

(Govt. Exs. 9 & 10.) , Ultimately, I find it very significant that the inspectors participated in the 

investigation in the No. 4 entry with their entourage of company employees without requiring that any 

roof be scaled down, that any additional support be installed, or indeed, that the entry be "dangered 

off." 

4 The half crib in the entry apparently was just that, an uncompleted crib. It appears to have 

served no useful purpose, but it ce1tainly was not a hazard. The attention paid to it during the trial was 

completely out of proportion to its relevance. 

35 
For these reasons, I find that the evidence does not support the allegation that an improper 

preshift examination was performed. Accordingly, I conclude that section 75.360(f) was not violated 

and will vacate the citation. 

Citation No. 7195726 

This citation charges a violation of section 75.362(a)(l) because: 

(Govt. Ex. 1.) 

A proper on-shift examination for the MMU 064-0 section was 

not conducted and recorded for the midnight shift of 10-17-2001. 

Several hazardous conditions were discovered during a non 

fatal accident investigation, that were obvious. 

The approved roof control plan was not complied with during 

the grouting of the mine roof by employees of contractor ESS/Micon 

QK5[.] Supplemental supports were not installed within a 15 foot 

radius of holes already grouted and current holes being grouted at the 

time of the accident, sag devices were not used as per the plan[,] page 

30[,] Patt E[,] No. 1, 2, and 3. 

A kettle bottom measuring 10 inches by 10 inches of 

undete1mined thickness was present in the No. 4 entry just outby left of 

half ctib without additional supp01t being installed. 

The on-shift examiner stated that he walked to Tyler's [sic] 

position (14' to 16' outby the face area), but did not proceed on to the 

face in the #4 entry. 

On-shift examiners are required to go all the way to the face in 

performing the exam. 

The on-shift exam was also in violation of 75.362(d), because 

no methane reading was taken at the face. Further the on-shift 

examiner's report did not have any methane readings or air readings, 

and it said "section idle" even though people were working on the 

section.5 · 

Section 75.362(a)(l) requires that: 

5 The last three paragraphs were added to the citation as the result of a Motion to Amend 

made by the Secretary on the day of the hearing. The motion was granted over the objection of the 

Respondent. (Tr. 10-20.) 

36 
At least once during each shift, or more often if necessary for 

safety, a ce1tified person designated by the operator shall conduct an 

on-shift examination of each section where anyone is assigned to work 

during the shift .... The certified person shaJI check for hazardous 

conditions, test for methane and oxygen deficiency, and determine if the 

air is moving in its proper direction. 

Except for substituting "on-shift" for "preshift" and the date and time of the examination, the first 

four paragraphs of this citation are identical to the previous citation. For many of the same reasons, the 

Secretary has also failed to prove this citation. 

Laxton, the certified person performing the on-shift, examination, testified that he performed an 

examination of the No. 4 entry at about 12:45 a.m. He stated that Deoskey and Pawich were not 

present in the entry at that time, but were in the dinner hole. (Tr. 230.) They had not started to work, 

because they asked Laxton to get some drill bits for them. (Tr. 230.) No grouting had been done since 

the midnight shift on the day before. 

In these circumstances, there was no requirement in the Roof Control Plan that supplemental 

supports or sag devices be installed. Thus, their absence was not a hazardous condition. 

For the same reasons that the kettle bottom, and the other embellishments added by the 

Secretary during the trial, were not obvious hazardous conditions that should have been recorded with 

regard to the previous citation, I conclude that they were not obvious hazardous conditions that should 

have been recorded with regard to this citation. 

At the hearing, the Secretary also asserted that the on-shift exam was not proper because 

Laxton did not go all the way to the face of the No. 4 entry when performing the exam. As the 

Respondent correctly notes, there is nothing in section 75.362(a)(l) that requires going to the face. 

Section 75.362(c)(3), 30 C.F.R. § 75.362(c)(3), requires that the velocity of air at each end of the 

longwall or shortwall face be checked. However, since coal was not being mined in the No. 4 entry 

and had not been for at least a week, there were no mining machines of any type in the entry and, 

therefore, no longwall or shortwall face to go to. Otherwise, there is nothing in any section of 75.362, 

except section 75.362(d)(2), 30 C.F.R. § 75.352(d)(2), that even mentions the face. Although 

apparently relied on by the Secretary, section 75.362(d)(2) is not applicable to this situation. 

In the first place, section 75.362(d) is required in addition to and not as part of the on-shift 

examination. In the second place, it only comes into play when electrical equipment is being used in the 

working place. If such equipment is being used, then section 75.362(d)(2) requires that methane tests 

be made at the face. "Working place" is " [t]he area of a coal mine inby the last open crosscut." 30 

C.F.R. § 75.2. The only equipment being used to grout the roof was a glue pump which, according to 

the mine map, was located outby the last open crosscut. (Resp. Ex. 21.) Therefore, even if section 

37 
75.362(d)(2) were part of the on-shift examination requirement, it was not required in this case because 

no electrical equipment was being used in the working place. 

Laxton testified that he did test for methane in the No. 4 entry in "the place most likely that 

methane would be, farthest away from the cmtain, closest to the top" and that he received a reading of 

"zero." (Tr. 229, 250.) He said that he did not observe any hazardous conditions. (Tr. 232.) He 

stated that he determined that the air was moving in the proper direction. (Tr. 251.) He was never 

asked whether he tested for oxygen deficiency, however, since there is no evidence that he did not and 

since he was an experienced examiner, I will assume that he did. In sho1i, Laxton did everything 

required of him by section 75.362(a)(l). In fact, except for contending that Laxton did not take a 

methane reading at the face, the Secretary's main thrust on this citation is that his findings were not 

properly recorded.6 

Unfortunately, nowhere in section 75.362 is there a requirement that the results of an on-site 

examination be recorded. Section 75.363(b), 30 C.F.R. § 75.363(b), requires that a "record shall be 

made of any hazardous condition ... in a book maintained for this purpose on the surface ... " 

(Emphasis added.) It fmther states that: ''This record shall not be required for shifts when no hazardous 

conditions are found or for hazardous conditions found during the preshift or weekly examinations . . .. " 

Inasmuch as Laxton found no hazardous conditions, he was not required to make any report. 

In sum, it appears that a proper on-shift examination was conducted for the MMU 064-0 

section. It further appears that since no hazards were found, particularly the ones alleged by the 

Secretary, nothing had to be recorded in the on-shift book. Consequently, I conclude that the 

Respondent did not violate section 75.362(a)(l) and will vacate the citation. 

Citation No. 3568565 

This citation asserts a violation of section 75.220(a)(l), 30 C.F.R. § 75.220(a)(l), because: 

During a non-fatal accident investigation it was determined that 

the Approved Roof Control Plan for this mine dated February 20, 

2001 was not complied with on the MMU 064 East Mains Section in 

the No. 4 entry where a non-fatal accident occurred on 10-17-2001. 

Loose, mine roof was present beginning 12' outby spad 30223 and 

extending inby for a distance of 30' and had not been scaled down. 

Adequate temporary supports were not installed on 5' centers with a 

minimum radius of 15' around the hole being injected, and roof sag 

6 While Laxton apparently did not go right up to the face, he came within four to ten feet of it. 

[Tr. 229, Resp. Ex. 21 (as measured on the mine map, he was within four feet of the face).] 

38 
devices were not installed around the No. 5 hole being injected with 

grout material. See page No. 30 Part E No. 1, 2, 3 of approved roof 

control plan. 

(Govt. Ex. 5.) Section 75.220(a)(l) requires that: "Each mine operator shall develop and follow a roof 

control plan, approved by the District Manager, that is suitable to the prevailing geological conditions, 

and the mining system to be used at the mine. Additional measures shall be taken to protect persons if 

unusual hazards are encountered." 

There is no dispute that the Micon employees did not install temporary suppo1ts or sag devices 

while injecting the roof with grouting material.7 This would appear to be a violation of the roof control / 

plan as cited. Nonetheless, the Respondent argues that the sections in the plan concerning grouting 

were "improperly imposed" on Eastern and, therefore, cannot serve as a basis for the alleged violation. 

(Resp. Br. at 39.) Specifically, the company argues that the grouting provisions are neither mine 

specific nor the result of good faith negotiations. The facts, however, indicate that Eastern did not try to 

negotiate the provisions with MSHA as to whether they applied to the specific requirements of the 

Harris Mine, or on any other basis, but instead acquiesced in including them in the plan. 

The five pages in the Roof Control Plan were originally included at the direction of MSHA. 

Inspector Workman told Eastern that grouting could not be performed at the mine unless it was 

covered in the roof or ventilation control plan. (Tr. 218.) Danny Spratt, the manager for safety and 

training, asked him how they could get such provisions in the plan and he told them he had a copy of 

some that he would fax to them. (Tr. 337.) On receiving the faxed the provisions, Eastern's 

management looked them over, then typed them up, put on a cover letter and had the plan approved by 

MSHA on May 11, 2001. (Govt. Ex. 6, p.2, Tr. 337.) No negotiations were had with MSHA over 

the provisions. 

The company now claims that it did not object to the provisions because it needed the grouting 

being done at the time to be completed so the longwall could be moved. Even if that is true, it does not 

explain why Eastern did not object to them later. In fact, it was not until the yearly review of the plan, 

apparently in January or February 2002, that the company revisited the provisions.8 (Tr. 338.) Even 

then, the Respondent did not try to renegotiate or object to the provisions, instead they proposed "to 

condense those five pages into two pages." (Tr. 338.) Danny Spratt and others met with the MSHA 

7 To the extent that the allegation in the citation concerning loose roof material is intended to be 

a violation of the roof control plan separate from the requirements concerning grouting, it is rejected for 

the same reasons it was rejected in the two previous citations. 

8 It is not clear from the evidence exactly when the mine's yearly review was, however, based 

on the fact that the previous year's review was approved on February 20, 2001, I am assuming that the 

2002 yearly review occuned at about the same time. (Govt. Ex. 6, p.3.) 

39 
Assistant District Manager and "had quite a lengthy meeting and the results of that meeting, our plan 

was not changed." (Tr. 338.) 

that: 

The Commission has stated, with regard to the negotiating of roof control and ventilation plans, 

The requirement that the Secretary approve an operator's mine 

ventilation plan does not mean that the operator has no option but to 

acquiesce to the Secretary's desires regarding the contents of the plan. 

Legitimate disagreements as to the proper course of action are bound 

to occur. In attempting to resolve such differences, the Secretary and 

an operator must negotiate in good faith and for a reasonable period 

concerning a disputed provision. Where such good faith negotiation 

has taken place, and the operator and the Secretary remain at odds 

over a plan provision, review of the dispute may be obtained by the 

operator's refusal to adopt the disputed provision, thus triggering 

litigation before the Commission. 

Carbon County Coal Co., 7 FMSHRC 1367, 1371(September1985)(emphasis added) (citation 

omitted). 

Here, Eastern did not attempt to negotiate the grouting requirements when they were originally 

included in its plan. Nor did it raise the issue after completing the grouting which it maintains prevented 

it from challenging the provisions initially. Further, there is no evidence that it raised the issue after 

receiving the instant citation in November, 2001. When it did finally get around to raising it, the 

company did so not by objecting to the provisions, but by proposing to "condense" the provisions. 

After one meeting, the company assented to continue including the five pages in its plan. Thus, it 

appears that what little negotiations there were resulted in the two parties agreeing. Certainly, there is 

no evidence that the company tried to take the matter to the district manager or to anyone else in the 

MSHA hierarchy. Nor did Eastern refuse to adopt the provisions to trigger litigation before the 

Commission. 

Consequently, I find that while the company now claims that the grouting requirements were 

imposed on it, in fact it put up little or no fight, instead agreeing to the inclusion of the provisions in its 

roof control plan. Since the grouting provisions were not imposed upon the Respondent, it was 

required by section 75.220(a)(l) to comply with their requirements and to insure that others working in 

the mine did also. By not doing so, the company violated section 75.220(a)(l). 

40 
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 substaDtially contribute to the cause and effect of a 

coal or other mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature." Cement Division, 

National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). 

In Mathies Coal Co., 6 FMSHRC l (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. FMSHRC, 52 F.3d 

133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), 

ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria). 

Evaluation of the criteria is made in terms of "continued normal mining operations." U.S. Steel Mining 

Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a paiticular violation is 

significant and substantial must be based on the patticulai· facts surrounding the violation. Texa gu~f, 

Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 

(December 1987). 

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

violation of a safety standard; (2) a distinct safety hazard, 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 will be of a reasonably serious nature. Mathies, 6 FMSHRC at 

3-4. 

Applying the Mathies criteria, I make the following findings. The violation of section 

75.220(a)(l), by not installing temporary roof supports and sag devices during grouting, created the 

distinct safety hazard of a roof fall. In view of the fact that the grouting was being performed to shore 

up a weak roof and the fact that the injection of the grouting material put the roof under additional 

pressure until the grout "set up," a roof fall resulting in a injury to someone standing under the affected 

roof was reasonably likely to occur. Finally, the resulting injury was likely to be of a reasonably serious 

nature, such as a crushed knee. Clearly, the failure to use temporary roof supports and sag devices 

was a significant contribl1ting cause to the accident, making it "significant and substantia1." Walker 

Stone Co., Inc., 19 FMSHRC 48, 53 (January 1997). Accordingly, I so find. 

Citation No. 7195722 

This citation alleges a violation of section 48.11 of the Secretary's mandatory training 

requirements, 30 C.F.R. § 48.11, because: "At an AFB investigation it has been determined that Tyler 

Pawich and Joe Deoskey, Micon employees, contracting for Eastern Associated Coal Corp., Harris 

41 
No. 1 Mine, had not been properly trained in the General Safety Precautions and Guidelines for 

Polyurethane Grouting for roof Strata and Rib consolidation of the approved Roof Control Plan." 

(Govt. Ex. 3.)9 Section 48.11 requires that: 

(a) Operators shall provide to those miners, as defined in 

§ 48.2(a)(2) (Definition of miner) of this subpart A, a training program 

before such miners commence their work duties. This training program 

shall include the following instruction, which is applicable to the duties 

of such miners: 

(1) Hazard recognition and avoidance; 

(2) Emergency and evacuation procedures; 

(3) Health and safety standards, safety rules, and safe working 

procedures; 

(4) Use of self-rescue and respiratory devices, with selfcontained self-rescue device training that includes complete donning 

procedures in which each person assumes a donning position, opens 

the device, activates the device, inserts the mouthpiece or simulates this 

task while explaining proper insertion of the mouthpiece, and puts on 

the nose c lip; and 

(5) Such other instruction as may be required by the District 

Manager based on circumstances and conditions at the mine. 

Section 48.2(a)(2), 30 C.F.R. § 48.2(a)(2), states that a miner is, "for the purposes of§ 48.11 

(Hazard training) of this subpart A, any person working in an underground mine, including any delivery, 

office, or scientific worker or occasional, sh01t-term maintenance or service worker contracted by the 

operator .... " 

It is the Secretary's position that paragraphs (a)(l) and (a)(3) of section 48.11 required that the 

hazard training given Pawich and Deoskey include pages 29 through 34 of Eastern's Roof Control 

Plan. Those pages are entitled "General Safety Precautions and Guidelines for Polyurethane Grouting 

for Roof Strata and Rib Consolidation" and cover such topics as: Notification of Use, Training, 

Personal Protection, Roof Control, Equipment, Storage and Handling, Injection Process, Ventilation, 

Fire Protection, Spills and Disposal. (Govt. Ex. 6, pp. 29-34.) On the other hand, the Respondent 

argues that training on these subjects would be task training, not hazard training. The Secretary has the 

better argument on this issue. 

9 The citation originally alleged a violation of section 48.S(a), 30 C.F.R. § 48.S(a), but was 

amended on November 24, 2001 (the modification is actually dated October 24, 2001). (Govt. Ex. 3 

at 2.) 

42 
While some of the guidelines may sound like the types of things covered in task training, training 

concerning the guidelines would not be covered by section 48.7, 30 C.F.R. § 48.7, which governs task 

training. In the first place, task training is only required for those newly assigned to work as "mobile 

equipment operators, drilling machine operators, haulage and conveyor systems operators, roof and 

ground control machine operators, and those in blasting operations." Id. In the second place, section 

48.7(e), 30 C.F.R. § 48.7(e), states that " [a]ll training and supervised practice and operation required 

by this section shall be given by a qualified trainer, or a supervisor. experienced in the assigned tasks, or 

other person experienced in the assigned tasks." The Respondent always hires a specialist to perform 

roof grouting. Thus, the company has no one in a position to perform the task training and, indeed, 

knows less about the task of roof grouting than do the experts hired to do it. 

The type of training given to employees of independent contractors such as Micon, depends on 

the frequency or length of their time in the mine. Section 48.2(a)(l), 30 C.F.R. § 48.2(a)(l), includes 

in its definition of miner, "a maintenance or service worker contracted for by the operator to work at 

the mine for frequent or extended periods." If such a miner is at the mine frequently or for extended 

periods, he would receive "Experienced miner training" under section 48.6, 30 C.F.R. § 48.6, the first 

time he came to the mine. That training would include health and safety aspects of the tasks to 

which the experienced miner is assigned. 30 C.F.R. § 48.6(a)(l l). 

However, if the employee of an independent contractor is only at the mine infrequently, for 

short periods of time, the only training he receives is hazard training under section 48.11. Nonetheless, 

section 48.11 clearly requires training in health and safety standards, safety rules and safe working 

procedures, which are applicable to the miner's duties. Thus, it is reasonable to expect that when an 

operator has safety provisions in its roof control plan which specifically apply to the task that the 

contract employee is going to be performing, the operator will go over those provisions during hazard 

training. 10 While not all of the guidelines in the roof control plan involved health and safety aspects of 

roof grouting, enough of them do that the training comes within section 48.11 (a)(3) of the regulation. 

It is undisputed that the Respondent did not provide such training to Deoskey and Pawich. 11 

Operators have the overall compliance responsibility for insuring that independent contractors comply 

with the standards and regulations applicable to the work being performed by them in the operator's 

mine. Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1996); Mingo Logan 

10 Accordingly, I find that the Respondent's additional argument that the standard is 

impermissibly vague or does not meet the "reasonably prudent person involved in the mining industry" 

test is without merit. 

11 It appears that one of the reasons, if not the main reason, why no training was given on the 

grouting provisions was that John Knabb, who gave the hazard training, was not familiar with the 

grouting procedures in the roof control plan. (Tr. 317.) 

43 
Coal Co., 19 FMSHRC 246, 250 (February 1997). Proper hazard training would have fulfilled that 

obligation. Accordingly, I conclude that the Respondent violated the regulation by not doing so. 

Significant and Substantial 

I find that the "significant and substantial" designation is not applicable to this violation. As 

section 104(d)(l) clearly states, only violations of "mandatory health or safety standard[s]" can be 

S&S. Section 3(1) of the Act, 30 U.S.C. § 802(1), defines "mandatory health or safety standard" as 

"the interim mandatory health or safety standards established by titles II or III of the Act, and the 

standards promulgated pursuant to title I of this Act." Mandatory health and safety training is not 

included in either title II or ID of the Act, nor is it included in the Secretary's mandatory health and 

safety standards promulgated pursuant to title I of the Act, which are clearly labeled as such. 

30 C.F.R. Parts K, Mand 0. Since this citation is not a violation of a mandatory health or safety 

standard, it cannot be S&S. Cyprus Cumberland Resources v. FMSHRC, 195 F.3d 42, 45 (D.C. 

Cir. 1999). 

Therefore, I conclude that the violation was not "significant and substantial." The citation will 

be modified accordingly. 

Civil Penalty Assessment 

The Secretary has proposed penalties of $874.00 for the two violations I have found that the 

company committed. However, it is the judge's independent responsibility to determine the 

appropriate amount of penalty in accordance with the six penalty criteria set out in section J lO(i) of the 

Act, 30 U.S.C. § 820(i). Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); 

Wallace Brothers, Inc., 18 FMSHRC 481, 483-84 (April 1996). 

In connection with these criteria the parties have stipulated that the Harris No. 1 Mine produces 

3.9 million tons of coal a year and that Eastern and its affiliated companies produce 149 million tons of 

coal a year. (Jt. Ex. 1.) Therefore, I find that the mine is a very large mine and Eastern a very large 

company. 

The parties have also stipulated that in the previous 24 month pe1iod the HatTis mine had 119 

assessed violations during 438 inspection days. (Jt. Ex. 1.) In addition, Inspector Sturgill testified that: 

''This company is a very good company, a very safety conscious company." (Tr. 60.) And Inspector 

Workman said that the company had "always worked with me every way they can to eliminate 

accidents" and "I just wish we had a lot more like them to work with." (Tr. 188.) I find that this 

indicates that the operator has a very good history of previous violations. 

44 
I further find based on the absence of any evidence to the contrary, that payment of the 

proposed penalty will not adversely affect Eastern's ability to remain in business and that the operator 

demonstrated good faith in attempting to achieve rapid compliance after notification of the violations. 

In view of the serious knee injury sustained by Pawich, I find that the gravity of both violations 

was fairly serious. 

Finally, I agree with the conclusions of the inspectors that the company was moderately 

negligent in committing these two violations. 

Taking all of these factors into consideration, I conclude that the penalties of $475.00 for 

Citation No. 7195722 and $399.00 for Citation No. 3568565, proposed by the Secretary, are 

appropriate. 

Order 

In view of the above, Citation Nos. 7195725, 7195726 and 7195727 are VACATED, 

Citation No. 7195722 is MODIFIED by deleting the "significant and substantial" designation and is 

AFJ?IRMED as modified and Citation No. 3568565 is AFFIRMED. Eastern Association Coal 

Corporation is ORDERED TO PAY a civil penalty of $874.00 within 30 days of the date of this 

decision. 

</T. Todd ot#~ Hoct~T._ Administrative Law Judge 

Distribution: (Certified Mail) 

Daniel M. Barish, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 22nct 

Floor West, Arlington, VA 22209-2247 

R. Henry Moore, Esq., Buchanan Ingersoll, One Oxford Centre, 301 Grant Street, 201h Floor, 

Pittsburgh, PA 15219 

/hs 

45 
46 
AD1\1INISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, Suite 9500 

Washington, D.C. 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

ON BEHALF OF DANNY FOUST, 

Complainant 

V. 

MANALAPAN MINING COMP ANY, 

Respondent 

January 8, 2003 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2002-203-D 

BARB CD 2001-15 

Preparation Plant 

Mine ID 15-12602 

ORDER GRANTING, IN PART, AND DENYING, IN PART, 

RESPONDENT'S MOTION TO STRIKE, FOR SANCTIONS 

AND ATTORNEY'S FEES 

This case is before me on a complaint of discrimination filed by the Secretary of Labor on 

behalf of Danny Foust under Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 815(c)(2) ("the Act"). A hearing was duly scheduled and held on September 10-12, 2002, 

in Harlan, Kentucky. After the parties rested, the record was closed and a briefing schedule was 

established. Attached to the Secretary's post-hearing brief were copies of a January 19, 2001, Order 

of the Commission approving a settlement agreement and dismissing a disc1imination proceeding 

brought, inter alia, against Respondent, and several orders by Commission Administrative Law Judges 

approving settlements of disc:rimination actions brought against Respondent and/or other allegedly 

related entities. Also attached were an Order of Temporary Reinstatement by a Commission ALJ and 

copies of records from the State of Kentucky purporting to establish that Respondent's chief executive 

officer had an interest in the entities that were the subject of the orders. 

Respondent moved to strike the exhibits and related portions of the Secretary's brief, arguing 

that they were submitted after the record was closed, were not disclosed in pre-hearing proceedings, 

involved matters that had been settled through confidential agreements including sealing of the records, · 

and that the attempt to submit such evidence after the hearing deprived it of procedural due process. 

Respondent sought sanctions against the Secretary's representative and an award of attorney's fees. 

Respondent also requested an opportunity to present evidence· regarding the circumstan~es of the 

various orders, in the event its motion to strike was denied. 

47 
The Secretary's position is not entirely clear. In her most recent filing, a response to 

Respondent's reply to her opposition to the motion, she argues that the Commission orders and 

decisions are simply "case law" cited for "legal precedent," and that they are relevant to Respondent's 

history of violations. 1 However, in her opposition to the motion, and in her brief, at pp. 94-96 and 

related portions of her reply brief, she went considerably further, asse1ting that the materials were 

relevant to evaluating the credibility of Respondent's witnesses. In essence, that the decisions establish 

that Manalapan (and other entities in which Manalapan's chief executive officer has, or has had, an 

interest) has previously discriminated against miners in violation of the Act, which tends to prove that 

Manalapan discriminated against Foust. In making that argument, the Secretary relies on factual 

matters that are not contained in, nor discemable from, the repotted decisions. While it may be 

correct, as the Secretary asserts (without citation to authority), that legal and factual findings of earli er 

decisions are routinely discussed by courts, the AU decisions approving settlement contain no 

adjudicated facts. They establish only that discrimination cases were brought against the named 

respondents and that they were settled on largely undisclosed terms, with the respondents agreeing to 

pay a civil penalty. 

I must reject any attempt by the Secretary to use the materials in dispute as substantive proof of 

discrimination. Such an attempt would violate orders establishing prehearing procedures in this case 

and would unduly delay resolution of this case by requiring that Respondent be given an opportunity to 

be fully heard on the asserted circumstances of the prior cases. In addition, the Secretary has 

completely failed to demonstrate that the mere fact of settlement of a prior allegation against 

Respondent, much less settlement of an allegation against a different entity, would have any relevance to 

the credibility of witnesses who testified on behalf of Respondent, or any other issue in this case. 

. The Notice of Hearing, issued May 9, 2002, directed the parties to submit prehearing reports 

containing, inter alia, a list of all exhibits they intended to offer into evidence at the hearing. The notice 

further provided that: "Failure to comply with any patt of this order may result in sanctions against the 

defaulting patty .... Absent good cause shown, no party will be permitted to offer an exhibit that has 

not been identified in the party's preheating report and made available for inspection and copying by 

opposing parties prior to the scheduled hearing." 

The documents submitted with the Secretary's brief were not identified on her prehearing 

report, were not made available to Respondent for inspection and copying prior to the hearing and 

were not offered, or even alluded to, during the course of the hearing. The hearing record closed after 

the patties rested and a briefing schedule was established. The Secretary has not requested that the 

Commission Procedural Rule 72, 29 C.F.R. § 2700.72, provides that unreviewed 

decisions of ALJ's are not binding precedent. The only Commission order relied upon simply 

dismissed a case based upon a settlement agreement between the parties. 

48 
record be re-opened to allow the submission of additional evidence. Nor has she offered any 

explanation for waiting until the filing of her brief to submit the challenged documents. Absent a 

showing of good cause for failure to comply with the Notice of Hearing, the proposed exhibits would 

not have been admitted at the hearing. Here, in the absence of a showing of good cause, they cannot 

be made a part of the record after the hearing record has closed.2 

As noted above, in her most recent filing the Secretary asserts only that the orders and 

decisions are relevant to Respondent's violation history. A violation of the Act, or a safety or health 

standard contained in or created pursuant to the Act, is a necessary predicate to the imposition of a civil 

penalty. It also appears that evidence of all previous violations, including cases resolved through 

settlement, must be considered in evaluating an operator's history of violations for purposes of 

determining an appropriate civil penalty. See, Sec'y of Labor on behalf of Johnson v. Jim Walter 

Resources, Inc., 18 FMSHRC 552, 556-57 (April 1996). As noted above, the ALJ decisions 

approving settlement establish that a civil penalty was imposed on the respondents in those cases. It 

would, therefore, be permissible to consider prior violations in cases resolved against Respondent 

through settlement, and the fact of such settlements may properly be established by citation to final 

decisions of the Commission. Because the fact of settlement and the imposition of a civil penalty 

pursuant thereto, as reflected in final decisions of the Commission, could not be reasonably disputed, it 

would also be appropriate to take judicial notice of them. 

2 While the Secretary has not specifically requested that judicial notice be taken of the 

alleged circumstances of the prior settlements, it would be inappropriate to do so. Aside from the fact 

that in some of the decisions, a civil penalty was imposed upon Respondent pursuant to a settlement 

agreement, the decisions establish virtually no adjudicative facts not subject to reasonable dispute. 

Moreover, if the Secretary's assertions regarding the circumstances of the prior cases were to be 

considered, Respondent would, in fairness, have to be afforded an oppo1tunity to be heard on those 

matters. 

49 
ORDER 

Based upon the foregoing, it is ORDERED that Respondent's Motion to Strike, for Sanctions 

and Attorney's Fees is granted in part and denied in part. The materials submitted as Exhibit A to 

the Secretary's brief, as well as related portions of the brief and reply brief, shall not be made a part of 

the evidentiary record in this case and will not be considered in deciding the merits of the discrimination 

allegations advanced in the complaint. If Respondent is found to have violated the Act and a civil 

penalty is imposed for such violation, final orders of the Commission, including decisions approving 

settlement issued by ALJ's, in which a civil penalty was imposed against the Respondent, Manalapan 

Mining Co., will be considered solely for purposes of evaluating Respondent's history of violations. In 

all other respects, Respondent's motion is denied. 

,. / !J~ /.. . .. ·',,.-. ' . / / . . /· / 

/{{,L

·/;. 

v..

fj 

·<..V 

.. .> (~~---/~ 

j • ,~-;<:;~inski AdministratiYe Law Judge 

Distribution: 

Donna E. Sonner, Esq. Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones Rd., 

Suite B-201, Nashville, TN 37215 

Susan C. Lawson, Esq., Lawson & Lawson, PSC, P.O. Box 837, Harlan, KY 40831 

Danny Foust, P.O. Box 311, Cawood, KY 40815 

/mh 

50 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

DENVER, CO 80204-3582 

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

AGGREGATE INDUSTRIES, WEST 

CENTRAL REGION, INC., 

Contestant 

v. 

SECRETARY OF LABOR, 

MlNE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AGGREGATE INDUSTRIES, WEST 

CENTRAL REGION, INC., 

Respondent 

January 10, 2003 

CONTEST PROCEEDINGS 

Docket No. WEST 2002-317-RM 

Citation No. 7914271; 01/22/2002 

Docket No. WEST 2002-318-RM 

Citation No. 7914268; 01/24/2002 

Docket No. WEST 2002-319-RM 

Citation No. 7914269; 01/24/2002 

Docket No. WEST 2002-320-RM 

Citation No. 7943951; 01/31/2002 

Fo1t Collins Plant 

Id. No. 05-04733 

CIVU., PENALTY PROCEEDINGS 

Docket No. WEST 2003-32-M 

A.C. No. 05-04733-05501 

Docket No. WEST 2003-33-M 

A.C. No. 05-04733-05502 

Fort Collins Plant 

ORDER GRANTING SECRETARY'S MOTION TO AMEND CITATION 

TO ALLEGE VIOLATIONS OF TWO ALTERNATIVE SAFETY STANDARDS 

The Secretary filed a motion to amend Citation No. 7914271 and the penalty petition for 

WEST 2003-33-M to allege, in the alternative, that Aggregate Industries, West Central Region, Inc., 

("Aggregate Industries") violated 30 C.F.R. § 56.14105 in addition to the allegation in the citation that 

Aggregate Industries violated section 56.12106. The Secretary is not seeking to substitute the one 

allegation for the other but is seeking to have the citation and penalty petition amended to allege 

51 
violations of both safety standards, in the alternative. In support of her motion, the Secretary states that 

under Fed. R. Civ. P. 8(e)(2) "a party may set forth two or more statements of a claim ... alternately 

... either in one count ... or in separate counts .... " The Secretary also relies upon the decision of 

former Commission Administrative Law Judge Lasher in Mid-Continent Resources, Inc., 10 

FMSHRC 191, 202-03 (Feb. 1988), and my order in CDK Contracting, Inc., 23 FMSHRC 783 

(July 2001). 

Aggregate Industries opposes the motion. As grounds for its opposition, Aggregate Industiies 

states that the Secretary failed to comply with Commission Rule 2700.10, which requires that a moving 

party confer with the opposing party before filing a motion. Furthermore, it argues that the Secretary's 

motion is unfairly prejudicial to Aggregate Industries. It maintains that the Secretary's responses to its 

discovery were misleading and disingenuous at best. Aggregate Industries argues that the Secretary is 

bound by her statements and responses to discovery. The Secretary knew or should have known that 

the safety standard that she originally cited did not support the alleged violation set fo1th in the citation. 

"Now the Secretary wants to continue the charade by arguing that the Secretary may plead alternative 

violations." (Opposition at 4). The Secretary's motion is not based on the "sudden discovery" of new 

evidence. Id. at 5. Aggregate lndustties is unfairly prejudiced by its reasonable reliance on the 

Secretary's discovery responses and her belated attempt to "take advantage of her previously 

inconsistent and misleading representations after substantial discovery." Id. Granting the Secretary's 

motion "would deny justice to Aggregate [Industries] by rewarding the Secretary's abusive pleading 

and discovery tactics." Id. at 6. 

The Secretary denies that her motion is prejudicial to Aggregate Industries. She states that 

counsel for Aggregate Industries questioned the issuing inspector about both safety standards during his 

deposition. In addition, she notes that a hearing has not yet been scheduled in these cases and the 

patties have ample time to conduct further discovery. Finally, the Secretary argues that Aggregate 

Industries misconstrues the Secretary's responses to written discovery and ignores the "legitimate bases 

for the objections she interposed to them." (S. Reply at 2). 

I conclude that the Secretary is authorized to amend her pleadings to allege violations of two 

alternative safety standards. It is well settled that administrative pleadings are liberally construed and 

easily amended, as long as adequate notice is provided and there is no prejudice to the opposing party. 

The civil penalty proceeding at issue, WEST 2003-33-M, was assigned to me on December 17, 2002, 

so it is still in the prehearing stage and no hearing has yet been scheduled. As a consequence, adequate 

notice has been provided. The only issue is whether Aggregate Industries is prejudiced by the 

amendment. The proposed amendment does not seek to change the underlying condition or practice 

described in section 8 of the citation. "When an amendment puts no different facts in issue than did the 

original [OSHA] citation, reference to an additional legal standard is not prejudicial." Donovan v. 

Royal Logging Co., 645 F.2d 822, 827 (9th Cir. 1981) citing So. Colo Prestress v. Occup. Safety 

& H. R. Comm. , 586 F.2d 1342, 1346-47 (101

h Cir. 1978). 

52 
The contested citation alleges that a fatal accident occurred on January 21, 2001, when an 

employee accidently bumped the start button in the control room for the log washer while another 

employee was in the log washer unplugging the drain. The MSHA inspector cited section 56.12016, 

which provides, in part, that electrically powered equipment shall be de-energized before mechanical 

work is petformed on such equipment. The Secretary seeks to add, in the alternative, a violation of 

section 56.14105, which provides, in part, that repairs or maintenance of machinery or equipment shall 

be petformed only after the power is off. The proposed amendment does not place different or new 

facts in issue. In addition, Aggregate Industries has sufficient time to serve additional discovery and 

prepare alternative defenses. I find that there is no inherent prejudice in the proposed amendment. 

Although counsel for the Secretary should have discussed the motion with counsel for 

Aggregate Industries as required by Commission Rule lO(c), the fact the he did not do so should not 

defeat the motion, especially where it is obvious that the pruties would not have reached an agreement 

on the issues raised by the motion. Rule lO(c) is designed to require a moving party to try to reach an 

accommodation with the opposing party before filing a motion. 

Aggregate Indust1ies contends that the Secretary's discovery responses are misleading and 

inconsistent with her proposed amendment. It argues that she should be bound by her discovery 

responses. If its allegations are true, Aggregate Industries can present these responses at the hearing in 

an attempt to rebut the Secretary's case. 

For the reasons set fo1th above, the Secretary's motion to amend Citation No. 7914271 and 

her petition for assessment of penalty in WEST 2003-33-M is GRANTED. 

( 

Richard W. Manning 

Administrative Law Judge 

Distribution: 

James J. Gonzales, Esq., Holland & Hart, 555 Seventeenth St., Ste 3200, Denver, CO 80202-3921 

(Fax and First Class Mail) 

John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550, Denver, 

CO 80201-6550 (Fax and First Class Mail) 

RWM 

53 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1244 SPEER BOULEVARD #280 

HAZEL OLSON, 

Complainant 

v. 

TRITON COAL COMPANY, 

Respondent 

DENVER, CO 80204-3582 

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

January 14, 2003 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2002-302-D 

DENY CD 2001-01 

Mine I.D. 48-01355 

N01th Rochelle Mine 

ORDER DENYING MOTION FOR SUMMARY DECISION 

On December 27, 2002, Triton Coal Company ("Triton") filed a motion for summary decision 

in this case. In the motion for summary decision, Triton maintains that its decision not to hire Hazel 

Olson could not have been motivated by her protected activity at the Jacobs Ranch Mine because 

Triton did not know about this protected activity. The motion is suppo1ted by two affidavits and 

deposition testimony. Ms. Olson filed a response in which she states that two witnesses wil l contradict 

the affidavit testimony presented by Triton. Her response is supported by a copy of an interview 

conducted by the Department of Labor's Mine Safety and Health Administration ("MSHA"). 

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

granting summary decision, as follows: 

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

record, including the pleadings, depositions, answers to 

inteITogatories, admissions, and affidavits, shows: 

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

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

of law. 

The Commission has long recognized that summary decision is an "extraordinary procedure." 

Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981). The Commission adopted the 

Supreme Comt's holding that summary judgment is authorized only "upon proper showings of the lack 

of a genuine, ttiable issue of material fact." Energy West Mining Co., 16 FMSHRC 1414, 1419 

(July 1994) (quoting Celotex Corp v. Catrett, 477 U.S. 317, 327 (1986)). 

54 
After reviewing the entire record, I find that Triton did not establish that "there is no genuine 

issue as to any material fact." Because Ms. Olson is proceeding on her own behalf, the fact that her 

statement is not contained in an affidavit should not be grounds for dismissal. Ms. Olson states that 

she has witnesses who will testify that she was not interviewed for a temporary position at the North 

Rochelle Mine (the "mine") because she had filed safety and discrimination complaints at the Jacobs 

Ranch Mine operated by another company in northeast Wyoming. She states that she has evidence 

that Debbie Noonan, a Triton employee, was well aware of her protected activity. She also states that 

Charlotte Terry, Human Resources Manager for the mine, conferred with Ms. Noonan when deciding 

whom to interview for temporary haul truck driver positions. She states that a witness will testify that 

when presented with Olson's resume, Terry immediately rejected it without reading or reviewing it. 

The Federal Mine Safety and Health Review Commission recognizes that it is very difficult to 

establish "a motivational nexus between protected activity and the adverse action that is the subject of 

the complaint." Sec'y on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999). 

In determining whether a mine operator's adverse action was motivated by the miner's protected 

activity, the judge must bear in mind that "direct evidence of motivation is rarely encountered; more 

typically, the only available evidence is indirect." Secretary of Labor on behalf of Chacon v. Phelps 

Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other grounds, 709 F.2d 86 

(D.C. Cir 1983). "Intent is subjective and in many cases the discrimination can be proven only by the 

use of circumstantial evidence." Id. (citation omitted). In Chacon, the Commission listed some of the 

more common circumstantial indicia of discriminatory intent: (1) knowledge of the protected activity; 

(2) hostility or animus toward protected activity; (3) coincidence in time between the protected activity 

and the adverse action; and (4) disparate treatment of the complainant. See also Hicks v. Cobra 

Mining, Inc., 13 FMSHRC 523, 530 (April 1991). In this case, Olson is alleging that the adverse 

action was Triton's failure to hire her in spite of her 20-years experience in the mining industry. If she 

can present credible evidence to support what she has offered in her response to Triton's motion, she 

may be able to establish a prima facie case of discrimination. Key facts at the heart of this case are in 

dispute. 

For the reasons set forth above, Triton's motion for summary decision is DENIED. The 

motion fails to establish that there is no genuine issue as to any material fact or that Triton is entitled to 

summary decision as a matter of law. 

Richard W. Manning 

Administrative Law Judge 

55 
Distribution: 

Ms. Hazel Olson, 16 Whoop-Up Canyon Road, Newcastle, WY 82701-9702 

Bradley T Cave, Esq., Holland & Hart, P.O. Box 1347, Cheyenne, WY 82003-1347 

RWM 

56 -t:l U.S. GOVERNMENT PRINTING OFFICE: 2003 496-553/85750