COMMISSION DECISIONS 

11-16-98 Brent Roberts 

11-30-98 Bellefonte Lime Company 

11-30-98 Roger Richardson 

NOVEMBER 1998 

ADMINISTRATIVE LAW JUDGE DECISIONS 

11-18-98 White Oak Mining & Construction Co. 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-09-98 Wayne Jones employed by United States 

Mining Company 

11-10-98 Gregory Bennett v. Newmont Gold Company 

i 

KENT 91-896-R 

PENN 95-467 

KENT98-308 

WEST 96-235 

SE 98-145 

WEST 98-115-D 

Pg. 1245 

Pg. 1250 

Pg. 1259 

Pg. 1263 

Pg. 1267 

Pg. 1273 

NOVEMBER 1998 

Review was granted in the following cases during the month of November: 

Secretary of Labor, MSHA v. Dynatec Mining Corporation, Docket No. WEST 94-645-M. 

(Judge Manning, September 24, 1998) 

Pamela Bridge Pero v. Cyprus Plateau Mining Corporation, Docket No. WEST 97-154-D. 

(Judge Cetti, September 30, 1998) 

Secretary of Labor, MSHA v. Black Diamond Construction, Inc., Docket No. EAJ 98-1. 

(Judge Barbour, October 9, 1998) 

Gilbert Ankrom v. Wolcottville Sand and Gravel, Docket No. LAKE 98-126-D. 

(Judge Weisberger, October 14, 1998) 

No cases were filed in which review was denied during the month of November: 

ii 

COMMISSION DECISIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

v. 

BRENT ROBERTS, 

PAUL COTTON, 

STEVE LITTLE, 

BENNY JOHNSON, 

SYDNEY POE, 

ROBERT BENNET, 

JAMES JACK, 

JOHN S. BIBY, 

LARRY FLYNN, 

KIMMIE NOAH, 

SHARELL CLARK, 

JAMES F. MATICS, 

ROBERT E. PERSINGER, 

EVERETTE E. BALLARD, 

DANIEL SERGE, 

SANDRA EASTHAM, 

KEVIN TUSTIN, 

STEVEN PERKINS, 

JIMMY HAYWORTH, 

DONALD CASE, and 

REGGIE PHILYAW 

1730 K STREET N.W., 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 16, 1998 

Docket Nos. KENT 91-896-R 

KENT 91-897-R 

KENT 91-898-R 

KENT 91-934-R - 91-955-R 

KENT 91-992-R 

LAKE 91-478-R 

LAKE 91-503-R- 91-529-R 

LAKE 91-530-R- 91-605-R 

SE 91-538-R 

SE 91-544-R- 91-655-R 

WEVA 91-1331-R 

WEVA 91-1332-R 

WEVA 91-1333-R 

WEVA 91-1385-R 

WEVA 91-1386-R 

WEVA 91-1494-R- 91-1509-R 

WEVA 91-1414-R- 91-1435-R 

WEVA 91-1436-R - 91-1493-R 

WEVA 91-1510-R- 91-1524-R 

WEVA 91-1525-R 

WEVA 91-1614-R 

WEVA 91-1926-R 

BEFORE: Riley, Verheggen, and Beatty, Commissioners1 

ORDER 

1 Chairman Jordan has recused herself in this matter and took no part in the consideration 

of this order. Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), this panel of three 

Commissioners has been designated to exercise the powers of the Commission. 

1245 
BY THE COMMISSION: 

In these contest proceedings arising under the Federal Mine Safety and Health Act of 

1977, 30U.S.C. § 801 et seq. {1994) ("Mine Act"). the Secretary of Labor has filed with the 

Commission a motion to consolidate and dismiss her appeals. The petitioners have not filed an 

opposition to the motion. For the reasons that follow, we grant the motion, vacate the directions 

for review, and dismiss these proceedings. 

I. 

Factual and Procedural Background 

On April 18, 1991, the Secretary, through the Department ofLabor's Mine Safety and 

Health Administration ("MSHA"), proposed to revoke certifications that had been conferred, 

pursuant to 30 C.F.R. Parts 70, 71, and 90, upon certain persons to collect respirable dust 

samples and to maintain and calibrate respirable dust sampling devices. 2 The proposed 

revocations arose from citations that were issued, pursuant to 30 U.S.C. § 814(a), to various mine 

operators on April 4, 1991, alleging that the weight ofrespirable dust cassettes submitted to 

fulfill sampling requirements had been intentionally altered by removing dust from the cassette 

filters. On May 15, 1991, notices of contest were filed with the Commission, resulting in these 

contest proceedings. 

On May 24, 1991~ the Secretary filed a motion to dismiss these proceedings, asserting 

that the Commission lacked jurisdiction to review the matter. On September 4, 1991, following 

argument on the motion, Chief Administrative Law Judge Paul Merlin issued a decision 

dismissing the case of Brent Roberts on the ground that the Commission lacked jurisdiction to 

review the matter. 13 FMSHRC 1377 (Sept. 1991) (ALJ). He concluded that, under the Mine 

Act and its legislative history, the Commission is not empowered to legislate a system of 

administrative review for cases involving decertification of persons who are not mine operators, 

miners, or representatives of miners. Id. at 1383. The judge subsequently issued separate 

decisions dismissing each of the remaining c~ses based on his Roberts decision, which he found 

dispositive of the matter. See id. at 1385-1416 (decisions dismissing remaining cases). 

2 The Mine Act requires that mine operators maintain an average concentration of 

respirable dust in the mines below prescribed limits. 30 U.S.C. § 842(b ); 30 C.F.R. §§ 70.100, 

71.100, 90.100. Operators must take accurate dust samples and submit them to the Secretary for 

analysis. 30 U.S.C. § 842(a); 30 C.F.R. §§ 70.201-70.210, 71.201-71.210, 90.201-90.210. 

Respirable dust sampling can only be done by a person who has been certified by the Secretary 

to take dust samples. 30 C.F.R. §§ 70.2(c), 70.202-70.203, 71.2(c), 71.202-71.203, 90.2, 90.202-

90.203. 

1246 
On October 3, 1991, counsel in the Roberts case filed with the Commission a petition for 

discretionary review. Subsequently, in all except one of the remaining cases, counsel filed 

petitions for discretionary review that adopted and incorporated by reference the Roberts 

petition.3 On October 15, 1991, the Commission directed the proceedings for review. Shortly 

thereafter, the petitioners filed motions requesting that further proceedings be stayed until 

resolution of the proceedings against mine operators alleging alteration ofrespirable dust 

samples in In re: Contests of Respirable Dust Sample Alteration Citations, Master Docket No. 

91-1 ("Dust Cases"), then pending before Administrative Law Judge James A. Broderick. On 

November 7, 1991, the Commission stayed the proceedings. On April 20, 1994, Judge Broderick 

issued a final decision dismissing the Dust Cases on the ground that the Secretary had failed to 

prove that the weight of respirable dust cassettes had been intentionally altered. 16 FMSHRC 

857 (Apr. 1994) (ALJ). Subsequently, the Secretary filed a petition for discretionary review of 

the judge's decision, which was granted by the Commission. On November 29, 1995, the 

Commission affirmed the judge's Dust Cases decision. 17 FMSHRC 1819 (Nov. 1995). The 

Secretary subsequently appealed to the United States Court of Appeals for the District of 

Columbia Circuit. On August 21, 1998, that court issued its decision in the Dust Cases, 

affirming the Commission. Secretary of Labor v. Keystone Coal Mining Corp., 151 F .3d 1096 

(D.C. Cir. 1998). 

II. 

Disposition 

The Secretary represents that, on September 10, 1998, "MSHA mailed a notice to all 

persons previously notified of the proposed revocation of certifications that the agency was 

withdrawing the proposed revocations." Mot. at 5. She requests that, because the proceedings 

all involve similar issues, the Commission consolidate the proceedings. Id. at 5-6. In addition, 

she requests that, because MSHA has withdrawn its proposed revocations, the Commission 

dismiss the proceedings on the ground that they are moot. Id. at 6-7. The petitioners do not 

oppose the motion. 

We hereby lift the stay in these proceedings. We agree with the Secretary that these 

proceedings may be properly consolidated under Commission Procedural Rule 12, 29 C.F.R. 

§ 2700.12,4 and accordingly order consolidation. We further agree with the Secretary that these 

3 The Commission's Docket Office has no record ofreceiving a petition for discretionary 

review in the case of Patrick Henry Fluty, 13 FMSHRC 1401 (Sept. 1991) (ALJ) (Docket Nos. 

WEVA 91-1193-R through WEVA 91-1218-R). 

4 Rule 12 provides: 

The Commission and its Judges may at any time, upon their 

1247 
proceedings no longer present a justiciable controversy. A case is moot when the issues 

presented no longer exist or the parties no longer have a legally cognizable interest in the 

outcome. Powell v. McCormack, 395 U.S. 486, 496 (1969). Here, the Secretary represents that 

MSHA has withdrawn its proposed revocations, which was the underlying controversy in these 

proceedings. Therefore, we find that there is no longer a live controversy between the Secretary 

and the petitioners as to the actions out of which the petitions for discretionary review arose. 

Thus, we conclude that these proceedings are moot and that dismissal is appropriate. See MidContinent Resources, Inc., 12 FMSHRC 949, 955-56 (May 1990) (affirming judge's dismissal of 

case when Secretary had vacated underlying citation and withdrawal order making case moot). 

Upon consideration of the motion, we grant it. Accordingly, the Commission's directions 

for review in these matters are vacated and these proceedings are dismissed. 

James C. Riley, Commissioner 

Theodore F. Verheggen, Co 

Robert H. Beatty, Jr., Co 

own motion or a party's motion, order the consolidation of 

proceedings that involve similar issues. 

1248 
Distribution 

Jack Powasnik, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd., Suite 400 

Arlington, VA 22203 

Michael T. Heenan, Esq. 

Heenan, Althen & Roles 

1110 Vermont A venue, Suite 400 

Washington, D.C. 20005 

John J. Polak, Esq. 

King, Betts & Allen 

P.O. Box 3394 

Charleston, WV 25333 

Michael Boehm, Esq. 

Spears, Moore, Rebman & Williams 

801 Pine Street 

P.O. Box 1749 

Chattanooga, TN 37401 

Webster J. Arceneaux, Ill, Esq. 

Lewis, Ciccarello & Friedberg 

One Valley Square, #700 

P.O. Box 1746 

Charleston, WV 25326 

Marcus P. McGraw, Esq. 

Greenbaum, Doll & McDonald 

1400 Vince Center Tower 

P.O. Box 1808 

Lexington, KY 40593 

John B. Carrico, Esq. 

801 Charleston National Plaza 

Charleston, WV 25301 

J. Timothy Dipiero, Esq. 

DiTraparo & Jackson 

604 Virginia Street East 

Charleston, WV 25301 

1249 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA) 

V .. 

1.730 K STREET NW, 6TH. FLOOR 

WASHINGTON, o~c. 20006 

November 30 , 199 8 

Docket No. PENN 95-467 

BELLEFONTE LIME COMPANY~ INC. 

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

DECISION 

BY THE COMMISSION: 

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

1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge Avram 

Weisberger determined that ground conditions at a limestone quarry operated by Bellefonte Lime 

Company, Inc. ("Bellefonte") amounted to a violation of30 C.F.R. § 56.3200,1 but that the 

violation was not significant and substantial ("S&S").2 19 FMSHRC 416 (Feb. 1997). The 

judge did not reach the issue of whether the violation was caused by Bellefonte's unwarrantable 

failure to comply with the standard. This conclusion was based on his view that, for a citation 

issued pursuant to section 104(d)(l), an allegation of unwarrantable failure does not survive the 

1 Section 56.3200, entitled, "Correction of hazardous conditions," provides: 

Ground conditions that create a hazard to persons shall be 

taken down or supported before other work or travel is permitted in 

the affected area. Until corrective work is completed, the area shall 

be posted with a warning against entry and, when left unattended, a 

barrier shall be installed to impede unauthorized entry. 

30 C.F.R. § 56.3200. 

2 The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C. 

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

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

1250 
dismissal of an S&S allegation. Id. at 425. The Commission sua sponte directed for review the 

judge's holding that he need not reach the unwarrantable failure issue. In addition, the 

Commission granted the petition for discretionary review filed by the Secretary of Labor, 

challenging the judge's determination that the violation was not S&S. For the reasons that 

follow, we reverse the judge's S&S determination, and remand for consideration of whether the 

violation was caused by Bellefonte's unwarrantable failure. 

I. 

Factual and Procedural Background 

Bellefonte operates the Gentzel Quarry, a Valentine limestone quarry in Pleasant Gap, 

Pennsylvania. Beginning in approximately 1982, a spoil pile comprised of overburden was 

created in the northwest portion of the quarry.3 Id. at 416. The overburden was dumped on the 

top of the surface area of the pile by trucks that traveled haul roads, which were constructed over 

and about the spoil pile. Id. at 417. Overburden was last added to the pile in approximately 

1991or1992. Id. 

Beginning on November 9, 1994, the northwest cut area was stripped of its overburden in 

preparation for mining. Id. On February 2, 1995, miners began to extract Valentine limestone 

from the northwest cut area. Id. The right and left banks of the spoil pile were adjacent to the 

floor of the working area, and material was removed from the center of the pile. Tr. 169, 194-95; 

Gov't Ex. 6 (videotape). In order to remove the limestone, a loader traveled into the cut area, 

which measured approximately 30 to 40 feet across, gathered a bucket of material, backed up to 

haul trucks parked along the haul road, or near the right bank of the spoil pile, and loaded the 

trucks. 19 FMSHRC at 418; Tr. 164, 182, 194-96, 225-26. 

On March 17, 1995, Edward Skvarch, an inspector with the Department of Labor's Mine 

Safety and Health Administration ("MSHA"), inspected the mine in response to an anonymous 

telephone call made to his supervisor. 19 FMSHRC at 417; Tr. 32-33. The inspector observed 

two areas in the spoil pile that he believed presented hazardous ground conditions. Gov't Ex. 1. 

The first area involved the right bank of the spoil pile. 19 FMSHRC at 417. Inspector 

Skvarch estimated that the right bank was 70 feet high, and that its slope was steeper than the 

angle of repose.4 Id.; Tr. 41-42, 4 7. He also observed that there were rocks near the top and at 

the face of the pile; there was no bench in the area to catch falling material; and the working area 

3 The overburden was black stone that had originally laid on top of the limestone. Tr. 

197, 225. 

4 The angle of repose is the angle at which material will stand under its own weight 

without any outside influences. Tr. 259-60. 

1251 
below the spoil pile was narrow. Tr. 41. The inspector did not measure the bank because he did 

not have any measuring instruments, and because he believed that it would be too dangerous to 

climb the slope. Tr. 42. 

The second area involved a slope located near a tum on a haul road leading to the 

northwest cut. 19 FMSHRC at 417. Inspector Skvarch estimated that the haul road slope was at 

least 50 feet high, and that the angle of the slope was greater than the angle ofrepose. Id. at 417-

18; Tr. 46. He also observed that the toe of the haul road slope was steeper than the remainder of 

the slope. 19 FMSHRC at 418. Inspector Skvarch made no measurements of conditions on the 

haul road slope. Tr. 47"'."48. 

Based upon his observations, Inspector Skvarch determined that hazardous ground 

conditions existed in the two areas and issued a citation, pursuant to section 104(d)(l) of the Act, 

alleging an S&S violation of section 56.3200 that had been caused by Bellefonte's unwarrantable 

failure. Gov't Ex. 1. The inspector stated that he believed that the violation was S&S because 

bank height and slope steepness affected slope stability and made it reasonably likely that rocks 

would roll down the two banks or that a landslide would occur. Id.; Tr. 62. The inspector also 

based his S&S charge on statements made to him by an equipment operator that rocks, some the 

size of basketballs, had rolled off of the right bank and had to be removed from the floor of the 

pit before work could be resumed. Tr. 62-63, 90. He noted that a "sizable" rock could crash 

through the window of equipment and strike the operator, or fall into the haul road and cause a 

vehicular accident. Tr. 63-64. Inspector Skvarch stated that, because of the close proximity of 

operation to both cited areas, a slide could result in a fatality. Tr. 64. 

The citation was abated when the cited areas were barricaded. Gov't Ex. 1. Bellefonte 

abandoned the northwest cut area permanently because there was only enough limestone 

remaining in the area to be extracted over one shift. 19 FMSHRC at 417; Tr. 52-53, 466-67. 

Bellefonte challenged the citation and the matter proceeded to hearing before Judge Weisberger. 

The judge concluded that Bellefonte violated section 56.3200, but he vacated the special 

findings of S&S and unwarrantable failure. 19 FMSHRC at 420-27. As to the violation, the 

judge concluded that rocks fell off the cited areas at points in time "not significantly remote" 

from the date the citation was issued, and that miners working in the adjacent confined work area 

and haul road were exposed "in some degree" to the hazard of being hit by falling material.5 Id. 

at 422. Because miners were allowed to work and travel in the area, and the spoil pile was not 

supported or taken down to prevent rocks from falling, the judge determined that the Secretary 

had established a violation of section 56.3200. Id. The judge concluded that the violation was 

not S&S. Id. at 425. He reasoned that the likelihood of injury from subsequent rock falls had 

5 The judge concluded, however, that the pile itself did not create a hazardous ground 

condition through the possible occurrence of a landslide. 19 FMSHRC at 422 n.l. The Secretary 

did not challenge this finding on review. 

1252 
not been established because the record did not set forth with particularity evidence of loose 

rocks in the cited areas and because there was only one shift worth of limestone remaining to be 

mined in the area. Id. at 424-25. The judge did not reach the question of whether the violation 

had been caused by unwarrantable failure, based on his determination that, "in the absence of a 

finding that the violation was [S&S], the inclusion of a finding of unwarrantable failure in a 

citation is not proper." Id. at 425. In his consideration of a civil penalty, however, he concluded 

that the violation involved a high level of gravity and more than ordinary negligence. Id. at 426. 

Accordingly, the judge amended the citation to a section 104(a) citation, and assessed the civil 

penalty of $2,500 proposed by the Secretary. Id. at 426-27. 

II. 

Disposition 

The Secretary argues that the judge erred in concluding that Bellefonte's violation of . 

section 56.3200 was not S&S. S. Br. at 5-14. She asserts that the judge failed to adequately 

consider evidence in the record regarding the frequency of rock falls in the right bank area and 

the haul road. Id. at 6-11. In addition, the Secretary contends that the judge erred in placing 

dispositive weight on evidence that the next shift in the cited area would have been the last. Id. 

at 10 n.3. She explains that such evidence did not mitigate the hazard in view of testimony that 

rocks fell off the pile on a regular basis. Id. Accordingly, the Secretary requests that the 

Commission reverse the judge's S&S determination, and remand for consideration of whether 

the violation was caused by unwarrantable failure. Id. at 14. 

Bellefonte responds that the judge correctly concluded that the violation was not S&S 

because there was "no evidence to support a conclusion that it was reasonably likely that an 

injury-producing rock fall would have occurred in the final mining shift in the northwest cut 

area." B. Br. at 21. It maintains that the judge gave proper weight to evidence of falling rocks 

and of the amount oflimestone remaining in the area, and that there was no evidence that the 

rocks in the cited areas were loose. Id. at 9-17. Accordingly, it requests that the judge's decision 

be affirmed. Id. at 21. 

The Commission has recognized that a violation is S&S if, based on the particular facts 

surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will 

result in an injury or illness of a reasonably serious nature. See Cement Div., Nat 'l Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1(Jan.1984), the 

Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

Secretary of Labor must prove: (1) the underlying violation of a 

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

measure of danger to safety - contributed to by the violation; 

1253 
(3) a reasonable likelihood that the hazard contributed to will result 

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

question will be of a reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th 

Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861F.2d99, 103 (5th Cir. 1988) (approving 

Mathies criteria). 

At issue here is whether the judge erred in concluding that the third Mathies factor had 

not been satisfied. Central to this question are his findings that the "likelihood of further rock 

falls" had not been established because of the lack of evidence regarding the numbers or extent 

of loose rocks and since Bellefonte employees would have traveled or worked in the cited areas 

for only one more shift. 19 FMSHRC at 425. We agree with the Secretary that the judge erred. 6 

First, the judge incorrectly concluded that the likelihood of injury was "mitigated to a 

great degree" by evidence that mining would continue in the northwest cut for only one more 

shift. Id. During that last shift, limestone would have been extracted under the same conditions 

that gave rise to the citation, and miners would have been exposed to the same degree of hazard 

as miners working in the shifts preceding issuance of the citation. Compare Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 2007, 2012-13 (Dec. 1987) (affirming determination that roof 

control violation was not S&S where mining had completely discontinued in an area and danger 

signs had been posted to prevent entry into area) with Halfway, Inc., 8 FMSHRC 8, 12-13 (Jan. 

1986) (concluding that roof control violation was S&S because, although mining had 

discontinued in the cited area, the area remained accessible and travelways to the cited area 

would be used by miners). Accordingly, contrary to the judge's finding, the S&S allegation was 

not ameliorated by short term exposure of the miners to the cited hazard. 

In addition, the judge erred by confining his consideration to the "likelihood of further 

rock falls" during continued normal mining operations. 19 FMSHRC at 425 (emphasis added). 

The third Mathies element requires the Secretary to establish a reasonable likelihood that the 

6 Commissioner Marks agrees that this violation is S&S. However, for the reasons set 

forth in his concurring opinions in United States Steel Mining Co., 18 FMSHRC 862, 868-75 

(June 1996), and Buffalo Crushed Stone, Inc., 19 FMSHRC 231, 240 (Feb. 1997), he continues 

to urge that the ambiguous language of the Commission's Mathies test, 6 FMSHRC at 3-4, be 

replaced with a clear test that is consistent with Congressional intent. On February 5, 1998, 

MSHA issued a lengthy Interpretive Bulletin, setting forth a new agency interpretation of S&S 

and announcing that MSHA would challenge the Commission's narrow interpretation of S&S. 

63 Fed. Reg. 6012 (1998). However, on April 23, 1998, MSHA suspended that Interpretive 

Bulletin with little explanation. Id. at 20,217. Commissioner Marks is curious as to MSHA's 

change in position on the S&S question and requests, as he has done on numerous occasions, that 

the Secretary promptly advise him on this important issue. 

1254 
hazard contributed to will result in an event in which there is an injury. See U.S. Steel Mining 

Co., 6 FMSHRC 1834, 1836 (Aug. 1984). The "operative time frame for determining if a 

reasonable likelihood of injury exists includes both the time that a violative condition existed 

prior to the citation and the time that it would have existed if normal mining operations had 

continued." Rushton Mining Co., 11FMSHRC1432, 1435 (Aug. 1989). 

The judge failed to consider whether there was a reasonable likelihood of injury during 

the "operative time frame ... [of when the] violative condition existed prior to the citation." Id. 

Having credited evidence that rocks fell from the cited areas prior to the issuance of the citation 

(19 FMSHRC at 418, 421-22), the judge was required to consider whether there was a reasonable 

likelihood that injury would have resulted from those rock falls. The judge failed to make his 

S&S determination based on the ground conditions that he had considered in finding a violation. 

For his S&S determination, the judge, in effect, required the Secretary to prove the probable 

occurrence of new hazardous ground conditions during the last mining shift. The judge should 

not have confined himself to a prospective analysis, asking only whether an injury-producing 

event was reasonably likely to occur during continued operations where, as here, the event 

creating the potential for injury had occurred prior to issuance of the citation. 7 See Bluestone 

Coal Corp., 19 FMSHRC 1025, 1033 (June 1997); Walker Stone Co., 19 FMSHRC 48, 53 (Jan. 

1997) (affirming S&S findings without prospective consideration of continued normal mining 

conditions where injury-producing event had occurred prior to issuance of citations). 

In viewing the record and the credibility determinations made by the judge in finding a 

violation, we conclude that substantial evidence does not support the judge's conclusion that 

Bellefonte's violation was not S&S.8 Neither party has challenged the judge's finding that rocks 

and other materials had fallen from the cited areas "at points in time not significantly remote 

from the cited date."9 19 FMSHRC at 418; see id. 421, 422. Testimony of witnesses credited by 

7 That the rock falls that occurred prior to issuance of the citation did not actually result 

in injury is not dispositive of the S&S determination. See Buffalo Crushed Stone, 19 FMSHRC 

at 238 ("[T]he fact that no injuries had been reported as a result of the condition of the walkway 

is not determinative of a conclusion that the third Mathies element has not been established."). 

8 When reviewing an administrative law judge's factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh 

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). 

9 Bellefonte does not challenge the judge's finding that rocks fell from the cited areas 

prior to March 17, 1995. B. Br. at 12 n.2. Rather, it argues that there is no evidence that an 

1255 
the judge (id. at 420-21) revealed that rocks falling from the right bank ranged in size up to two 

feet in diameter, and that, depending upon how fast they came down, rocks sometimes rolled all 

of the way across the working area. Tr. 203-04, 230-31. In addition, it is undisputed that the 

areas were not benched to catch falling material, that the working area below was confined, and 

that the loader operated at times approximately ten feet away from the spoil pile. 19 FMSHRC 

at 421; Tr. 41, 63, 164, 166, 227-29. The judge also credited evidence that miners in the working 

area were exposed to the falling material, discrediting testimony by Bellefonte's expert witness, 

Lawrence Beck, that a rock falling off the pile would not be high enough to hit an equipment 

operator in the area. 19 FMSHRC at 421-22. Bellefonte has offered no compelling reason to 

overturn that credibility determination. In re: Contests of Respirable Dust Sample Alteration 

Citations, 17 FMSHRC 1819, 1881 n.80 (Nov. 1995), aff'd sub nom. Secretary of Labor v. 

Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998). 

Accordingly, we reverse the judge's determination that the violation was not S&S and 

remand for the judge to consider whether the violation was caused by Bellefonte's unwarrantable 

failure. Consequently, the question of whether the unwarrantable failure allegation survived 

dismissal of the S&S allegation is moot, and we do not reach it. 10 

injury producing rock fall would have occurred during the final mining shift. Id. at 12-17, 21. 

Because we consider only those rock falls that occurred prior to March 17, we need not address 

Bellefonte's argument. 

10 In Commissioner Marks' opinion, the unwarrantable failure finding survived the 

modification of the section 104(d)(l) citation to a section 104(a) citation, and consideration of 

the special finding by the judge would have been appropriate. 

1256 
III. 

Conclusion 

For the foregoing reasons, we reverse the judge's determination that Bellefonte's 

violation of section 56.3200 was not S&S. We remand to the judge for his consideration of 

whether the violation had been caused by Bellefonte's unwarrantable failure to comply with the 

standard, and for the reassessment of the civil penalty, if appropriate. 

M~6:~ 

'h,tw1..., 

Marc Lincoln Marks, Commissioner 

Theodore F. Verheggen, Commis 

1257 
Distribution 

Y oora Kim, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard, Suite 400 

Arlington, VA 22203 

John A. Snyder, Esq. 

McQuaide Blasko 

811 University Drive 

State College, PA 16801 

Administrative Law Judge Avram Weisberger 

Federal Mine Safety and Health Review Commission 

Office of the Administrative Law Judge 

5203 Leesburg Pike, Suite 1000 

Falls Church, VA 22041 

1258 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROGER RICHARDSON 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 30, 1998 

Docket No. KENT 98-308 

A.C. No. 15-07475-03560A 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (1994) ("Mine Act"). On September 16, 1998, the Commission received from 

Roger Richardson ("Richardson") a Request for Hearing on a proposed penalty assessment that 

allegedly had become a final order of the Commission pursuant to section 105(a) of the Mine 

Act, 30 U.S.C. § 815(a). It has been administratively determined that the Secretary of Labor 

does not oppose the motion for relief filed by Richardson. 

Section 105(a) of the Mine Act, and the Commission's procedural rules implementing 

that section, provide that a person against whom a penalty is proposed to be assessed shall inform 

the Secretary that he intends to contest the proposed penalty assessment "30 days from the 

receipt of the notification issued by the Secretary." 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If 

the operator or person fails to so notify the Secretary, the proposed penalty assessment is deemed 

a final order of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27. 

In his request, Richardson submits that he first received notice of the proposed 

assessment on approximately August 3, 1998, when he received documents from the Department 

of Labor's Mine Safety and Health Administration ("MSHA") in response to a Freedom of 

Information Act request that he had made to MSHA through counsel. Mot. at 1-2. He asserts 

that he requested a hearing on August 11. Id. at 2. Richardson states that on approximately 

September 5, his counsel received a letter from MSHA denying the hearing request as untimely. 

1259 
Id.; Ex. D. Richardson states that upon review of the September 5 letter, it appeared that the 

proposed assessment had been sent to an address where he no longer resided, had been signed for 

by his former wife, and that she had not forwarded the assessment to his new address. Mot. at 2. 

Richardson claims that, since he contested the proposed penalty within 30 days after receiving 

notice, he acted within the time limit imposed by the Mine Act. Id. He also requests that any 

final order be set aside and that he be granted a hearing. Id. at 2-3. 

Here, the proposed penalty assessment was mailed to an address where Richardson no 

longer resided. Richardson was not required to notify MSHA of his change of address under 

30 C.F.R. § 41.12. Richardson received a copy of the proposed penalty assessment on August 3, 

1998, through a FOIA request that he initiated through counsel. Under these circumstances, we 

conclude that Richardson did not "receive" the penalty assessment within the meaning of section 

105(a) of the Mine Act and the Commission's Procedural Rules until August 3. Because 

Richardson contested the proposed penalty assessment on August 11, well within the 30-day 

time period, we conclude that Richardson timely notified the Secretary that he contests the 

proposed penalty. 

1260 
Accordingly, the proposed penalty assessment is not a final order of the Commission. 

We remand this matter for assignment to a judge. The case shall proceed pursuant to the Mine 

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

Marc Lincoln Marks, Commissioner 

Robert H. Beatty, Jr., Commissi er 

1261 
Distribution 

Billy R. Shelton, Esq., 

Baird, Baird, Baird & Jones, P.S.C. 

415 Second Street 

P.O. Box 351 

Pikeville, KY 41502 

W. Christian Schumann, Esq. 

U.S. Department of Labor 

Office of the Solicitor, Suite 400 

4015 Wilson Boulevard 

Arlington, VA 22203 

Chief Administrative Law Judge Paul Merlin 

Federal Mine Safety and Health Review Commission 

1730 K Street, N.W., Suite 600 

Washington, D.C. 20006 

1262 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 1 8 1996 

SECRETARY OF LABOR 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

V. 

WHITE OAK MINING 

AND CONSTRUCTION CO., INC., 

Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 96-235 

A. C. No. 42-01280-03644 

Docket No. WEST 96-338 

A. C. No. 42-01280-03654 

White Oak #2 Mine 

DECISION ON REMAND 

Before: Judge Hodgdon 

This case is before me on remand from the Commission. White Oak Mining & 

Construction Co., Inc., Docket Nos. WEST 96-235 and WEST 96-338 (October 30, 1998). 1 

The Commission vacated the determination that White Oak did not violate section 48.7(a), 

30 C.F.R. § 48.7(a), in task training Keith Smith as a continuous miner operator and remanded 

the case for further analysis of whether the training given Smith constituted "the type of training 

that a reasonably prudent person would have provided in order to meet the protection intended by 

the standard's requirements."2 Id at 6. For the reasons set forth below, I find that it did. 

On March 24, 1995, Blue Samples, a 20-year old, inexperienced miner, who had worked 

only 15 shifts at the mine, was hit and killed by the tail boom of a continuous-mining machine 

being operated by Smith. At the time, Samples was working as Smith's miner helper. As the 

result of an investigation into the accident, the Mine Safety and Health Administration (MSHA) 

concluded that neither Samples nor Smith had been properly task trained. The original decision 

found that Samples had not been adequately trained, but that Smith had. White Oak Mining & 

Construction Co., Inc., 19 FMSHRC 1414 (August 1997). 

1 Forthcoming as White Oak Mining & Construction Co., Inc., 20 FMSHRC 1130 

(October 1998). 

2 Section 48.7 requires that miners assigned to new work tasks as mobile equipment 

operators shall not perform those tasks until they have been trained in the health and safety 

aspects and safe operating procedures for the equipment, have had supervised practice during 

non-production or supervised operation during production and have demonstrated safe operating 

procedures for the equipment to the operator or the operator's agent. 

1263 
Order No. 3415831 alleges that Keith Smith was not "adequately" task trained as a 

continuous miner operator because his training did not include the information that "[r]emote 

control operations of continuous miners create special safety considerations with respect to 

tramming the machine" as set out in Joy Service Bulletin No. FG-176 (9/24/91 ). Other than 

tramming the continuous miner, the order makes no mention of what health and safety 

information should have been included in the training, but was not. Furthermore, in her post 

hearing brief, the Secretary did not state what health and safety information was required by 

section 48.7(a), but seemed to rely entirely on the fact that the training only took 15-30 minutes 

and that it did not involve use of the Joy Service Bulletin, as evidence of the violation. 

There is no Commission precedent concerning what health and safety information and 

supervised practice or supervised operation during production are required by section 48.7(a). 

The only evidence offered by the Secretary on such requirements was the testimony of Donald E. 

Gibson, Electrical, Educational and Training Supervisor for MSHA District 9. To the extent his 

testimony was germane, it was, for the most part, generic and not tailored to specific facts of this 

case. For instance, when asked what health and safety aspects should be included in the task 

training of an experienced miner who had not operated a continuous miner in the previous 12 

months, he replied: 

Health first. Health would be -- and in conjunction with 

health we're going to take into consideration the ventilation plan 

because those run hand in hand and in our office when we evaluate 

the ventilation plan for any coal mine, we do that hand in hand. 

We look at the spray configuration on the machine, we look at if 

it's a scrubber, we look at if it's a spray fan system, we look at the 

water pressure, we look at the amount of water in gallons per 

minute, we look at the flow rate, again, as gallons per minute, 

orientation of the sprays when cutting left side, right side. All that 

is for the prevention of pneumoconiosis and also silicosis, so those 

are health aspects. 

Another aspect of the health issue would be possibly 

hearing protection, the operator is required to do noise survey, so is 

there something causing abnormal or more than what is required 

noise levels to be addressed in a hearing conservation plan? 

(Tr. 384-85.) As can be seen, no indication is given of what training concerning the ventilation 

plan was required in this case, nor are the deficiencies of the training given Smith pointed out. 

In fact, little training was provided in this area because Smith had worked with Shane 

Hansen, the person training him, for three months as a miner helper and Hansen was aware that 

Smith was already familiar with the ventilation plan, and the roof control plan as well. Section 

48.7(a) provides that task training is not required for "miners who have performed the new work 

1264 
tasks and who have demonstrated safe operating procedures for such new work tasks within 

12 months preceding assignment." Consequently, I find that Smith's training met the 

requirements of the section 48.7(a) in these two health and safety areas. 

Gibson stated that Smith should have been trained in safe operating procedures for the 

continuous miner. Once again he did not relate what specifically should have been covered, or 

how Smith's training may have been deficient. However, based on the evidence, I find that 

Smith was task trained in operation of the remote control, tramming the miner and the extent to 

which the miner could swing, how to split the miner's tracks when turning, how to tum in 

crosscuts, safe positions for miner's helpers to stand and the avoidance of pinch points at the 

head and at the boom, specific methods of maneuvering the machine to cut coal, cutting coal 

downhill, the cutting cycle, cleaning the scrubber, handling the cable, examining the cable for 

damage, activation of the fire suppression system, scaling the roof and ribs, how to take gas 

checks every 20 minutes, examination of the continuous miner, including the lights, bits, sprays, 

scrubber, cable and fire hose and examination of the working area, including ventilation, before 

commencing work. Accordingly, I conclude that Smith was adequately task trained in the safety 

aspects of operating the continuous miner. 

With regard to supervised practice or operation, Hansen testified as follows: 

Q. During this time you were task training Mr. Smith did you ever 

supervise him while he practiced operating the equipment? 

A. Yeah. 

Q. And was that during production or non-production? 

A. Well, he just took just a few minutes to play with the controls 

and get used to everything and then we trammed it into the face 

and that was probably in production. 

Q. Okay. And then he started cutting coal? 

A. Yeah. And then I was probably there with him most of the day. 

(Tr. 510-11.) The Secretary did not present any evidence to rebut this testimony. Therefore, I 

find that Smith's training did include supervised operation during production. 

I conclude that the task training provided to Smith amounted to the type of training that a 

reasonably prudent person would have provided in order to meet the protection intended by the 

requirements of section 48. 7(a). At the time that Smith was trained on the continuous miner he 

had almost 20 years mining experience. He had previously operated the miner when employed at 

this same mine by Valley Camp some 15 months prior to his training. Furthermore, he had 

1Z65 
served as a miner helper to Hansen on the same miner he was trained on for 3 months since 

coming to work for White Oak. As even Gibson admitted, "[h]ad he been properly trained as the 

miner helper ... the only difference [between miner helper training and miner operator training] 

is it may be the operation of the machine because maybe they didn't train the helper to operate 

the machine." (Tr. 394.) Needless to say, there is no evidence that Smith was not properly 

trained as a miner helper. 

The Secretary, relying mainly on the length of the training and the fact that the Joy 

Service Bulletin was not used in the training, has failed to show that the training was not 

adequate. While it is true that the service bulletin was not used in the training, it appears that the 

materials in the bulletin with respect to tramming the miner and avoiding pinch points were 

covered. Everything in White Oaks training plan, which had been approved by MSHA, was 

covered in the training given to Smith, except changing bits and servicing the continuous miner. 

These two items are also included in miner helper training, which Smith had already received. 

The Secretary did not present any evidence concerning how the requirements of section 

48.7(a) should have been met in this instance, nor did she demonstrate what was missing from 

Smith's training that was required by the regulation. In fact, it is apparent that no one from 

MSHA even bothered to interview Shane Hansen, Smith's trainer, concerning what the training 

included. Accordingly, I conclude that White Oak did not violate section 47.8(a) when it task 

trained Keith Smith as a miner operator. 

ORDER 

In view of the above, Order No. 3415831 is VACATED. 

v.'J,#~ T. Todd Hod;~··· 

Administrative Law Judge 

Distribution: 

Yoora Kim, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, 

Suite 400, Arlington, VA 22203 (Certified Mail) 

William K. Doran, Esq., Heenan, Althen & Roles, 1110 Vermont Avenue, N.W., Suite 400, 

Washington, D.C. 20005-3593 (Certified Mail) 

/tb 

12(6 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 91998 

SECRET ARY OF LABOR, CIVIL PENAL TY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 98-145 

Petitioner A. C. No. 01-00851-04031 A 

v. 

WAYNE JONES, Employed by 

UNITED STATES MINING COMP ANY 

LLC, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MIKE SUMPTER, Employed by 

UNITED STATES MINING COMPANY 

LLC, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DANNY JOE COOK, Employed by 

UNITED STATES MINING COMPANY 

LLC, 

Respondent 

Oak Grove Mine 

CIVIL PENAL TY PROCEEDING 

Docket No. SE 98-146 

A. C. No. 01-00851-04032 A 

Oak Grove Mine 

CIVIL PENAL TY PROCEEDING 

Docket No. SE 98-147 

A. C. No. 01-00851-04033 A 

Oak Grove Mine 

1267 
SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROBERT CUNNINGHAM, Employed by 

UNITED STATES .MINING COMPANY 

LLC, 

Respondent 

CIVIL PENAL TY PROCEEDING 

Docket No. SE 98-148 

A. C. No. 01-00851-04034 A 

Oak Grove Mine 

ORDER DENYING RESPONDENT'S 

MOTION TO DISMISS 

These cases are before me base upon Petitions for Assessment of Civil Penalty filed 

pursuant to section 1 lO(c) of the Federal Mine Safety and Health Act of 1997 (the Act), 

30 U.S.C. § 820(C). On October 7, 1998, Respondents filed a Motion to Dismiss the Secretary's 

Petitions asserting that the Secretary did not notify Respondents within a reasonable time that it 

intended to assess civil penalties against them; that it did not investigate and file the instant 

Petitions in a timely manner; and that it did not issue citations with reasonable promptness. On 

October 29, 1998, the Secretary filed its opposition to Respondents' motion. 

Sequence of Events 

The following is the sequence of events in these cases as set forth in Respondents' 

motion, and not challenged in the Secretary's opposition: 

1. On August 16, 1996, MSHA inspector 0. L. Jones issued a Section 104(d) 

Order, No. 4478893, to U.S. Steel Mining Company ("USM") alleging a violation 

of 30 C.F.R. § 75.204(f)(4). USM did not contest the Order and paid the penalty 

it was assessed. 

2. On August 17, 1996, MSHA inspector 0. L. Jones issued a Section 104( d)(l) 

Order, No. 4478891, to USM alleging a violation of 30 C.F.R. § 75.202(b). USM 

did not contest the Order and paid the penalty it was assessed. 

3. These orders arose out of an investigation of a fatal accident at an overcast 

construction site in the Main North Area ofUSM's Oak Grove Mine on 

August 16, 1996. The conditions alleged in the two orders did not cause or 

contribute to the accident according to the report MSHA prepared concerning the 

accident. 

1268 
4. Mr. Clinningham was the Area Manager in the Main North Section in August 

1996. 

5. Mr. Sumpter was the general mine foreman at the Oak Grove Mine. 

6. Mr. Jones was a section foreman at the Oak Grove Mine but was not present 

at the mine on August 16, 1996. 

7. Mr. Cook was a construction foreman at the Oak Grove Mine. 

8. On August 30, 1996, a determination was made by the MSHA District 

Manager with responsibility over the Oak Grove Mine, that a special investigation 

should be performed to determine if individual liability under Section 110( c) of 

the Federal Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C. § 820(c), 

should be imposed. 

9. Despite MSHA's determination on August 30, 1996 that special investigation 

should be initiated, the case was not assigned to a special investigator until 

February 21, 1997. Special Investigator Mike Belcher conducted the 

investigation in conjunction with Mr. Deason, at that time a special investigatorin-training. 

10. Mr. Belcher and Mr. Deason did not work on the case full time after it was 

assigned to them but did interview six witnesses before March 18, 1997. At that 

point, Mr. Belcher ceased to be part of the investigation but Mr. Deason and 

another MSHA special investigator, conducted another witness interview on 

March 20, 1997. This was the last interview conducted in the special 

investigation before Mr. Deason submitted his report over six months later. 

11. In late March into early May, 1197, Mr. Deason sought to arrange interviews 

of management personnel. He was unable to do so but if he had done so, he 

would have had to obtain a special investigator to actually conduct the interview. 

12. On or about May 14, 1997, MSHA District Manager, Michael J. Lawless, 

notified Ron Osborne, General Manager of the Oak Grove Mine, that Mr. Deason 

was seeking to interview him and others in the special investigation and that if 

such an interview was not conducted by May 20, 1997, the special investigator's 

report would be forwarded to MSHA' s headquarters for processing. 

13. According to MSHA' s Program Policy Manual, investigative reports are to be 

submitted to MSHA's Headquarters Technical Compliance and Investigation 

Division ("TCID") within 240 days from the date the subject citation or order is 

issued. The Program Policy Manual also indicates "the maximum time for 

1269 
submission to the investigative report on TCID is 365 days from the date of the 

issuance of the citation or order. TCID monitors all special investigations "to 

ensure compliance with the 240-day time frame." Chapter 4 of MSHA'a Special 

Investigation Procedures Handbook contains the same time deadlines. 

14. Despite these guidelines, the investigative report in this matter was not 

submitted to TCID until October 10, 1997, approximately 14 months later. 

15. As part of the review process with MSHA, the cases are referred to the 

Solicitor's office. This was done on October 23, 1997. 

16. The Solicitor's office completed its review of the file on or before 

February 13, 1998, the date of the letters notifying Respondents ofMSHA's intent 

to prepare penalties. That review is to be completed within 60 days of submission 

of the file to the Solicitor's Office. Such timeframe was apparently not met in this 

case. 

17. Respondents were notified by letters dated February 13, 1998, that MSHA 

intended to assess individual civil penalties against them as a result ofMSHA's 

investigations. Mr. Cunningham is charged with respect to both Orders 

No. 4478891 and 4478893. Mr. Cook, Mr. Jones and Mr. Sumpter are charged 

only with respect to Order No. 4478891. 

18. A Part 100 Manager's Conference was held on February 24, 1998. By 

Proposed Assessments dated May 27, 1998, Respondents were notified of their 

proposed individual penalties. Respondents notified MSHA of their intent to 

challenge the penalties and on June 25, 1998 the Secretary filed the instant 

Petitions for Assessment of Civil Penalties. 

Discussion 

Section 105(a) of the Act requires that operators must be notified of penalty proposals 

"within a reasonable time." This requirement, by reason of fairness, should also apply to 

individuals against whom penalties are sought pursuant to section 110( c) of the Act. Further, 

section 104(a) of the Act, requires that citations be issued by the Secretary to operators "within 

reasonable promptness." However, there is no binding legal authority which would require 

dismissal of the instant proceedings because of any delay by the Secretary in its investigation of 

these matters, and in the initiation of proceedings against the individual Respondents. There is 

no Commission decision on point. The cases cited by Respondents on page 14 of their brief are 

by Commission Judges and thus have no precedential value under the Commission's Rules, 

29 C.F.R. § 2700.72. Further, the cases relied on by Respondents time are distinguishable. In 

Doyal Morgan et al, 20 FMSHRC 38 (Chief Judge Merlin, January 1998), the 1 lO(c) 

proceedings were dismissed by Judge Merlin who held that the record did not indicate any 

1270 
difficulties in the investigation or acceptable reason to explain the delay. In Reymond P. Ernst 

employed by Lyon Sand and Gravel Company, 18 FMSHRC 1674 (Chief Judge Merlin, 

September 1996), the 110( c) action was dismissed by Judge Merlin based on the failure of the 

Secretary to present reasons explaining the cause of the delay. In Robert J Cox, 19 FMSHRC 

1094 (Judge Fauver, 1997) a 1 IO(c) proceeding was dismissed as being untimely, but the 

decision does not discuss whether the Secretary presented any reason to explain the delay. In 

contrast, in the case at bar, an affidavit of Fredrick R. Schell sets fourth credible reasons for the 

delays encountered in this case. Schell avers as follows: 

* * * 

8. The Section 11 0( c) investigation at issue was not a routine special 

investigation. It arose out of investigation of a fatal roof control accident which 

occurred at an overcast location in the Main North area of United States Steel's 

Oak Grove Mine. The special investigation was conducted concurrently with 

three Section 105( c) discrimination investigations, which arose out of the same 

violations issued in this matter. The two roof control violations, which are subject 

to this Section 110( c) investigation, were in the same location of the mine as a 

fatal roof fall accident. 

9. During the time period when this Section 110( c) investigation was being 

conducted, the District's Special Investigation Unit had a very heavy case load, 

including more than 50 Section 110( c) and 110( d) violations to investigate, and 

only one trained special investigator. Also there was a number of concurrent 

Section 105( c) investigations which were being investigated by the District 

Special Investigation Unit. This caused a delay in starting and completing this 

special investigation. As a result, the nonmandatory guidelines for completing 

this investigation, stated in MSHA' s Program Policy Manual, were not met. 

10. This was a complex case which contained 15 separate interviews and 

numerous documents to determine which of the operator's agents knowingly 

violated the regulation. Based upon my review of this file, I believe the time 

period to investigate this case was reasonable. 

I find that the delays in this case were not so egregious as to require the harsh remedy of 

dismissal (see, White Oak Mining and Construction, Inc., 20 FMSHRC 551 (Judge Hodgdon) 

(May 1998). Respondents also assert prejudice occasioned by the Secretary's delay citing the 

fading of witnesses memories which inevitably occurs with the passage of time. Respondents 

have not set forth any specifics in this case to support their assertion, and I reject it. I concur 

with Chief Judge Merlin that prejudice will not be incurred from passage of time alone 

(James Lee Hancock employed by Pittsburgh and Midway Coal Co., 17 FMSHRC 1671, 1675 

(Judge Merlin, September 1995). The only specific allegations of prejudice asserted by 

Respondents are references to the death J. T. Williams a potential witness to the events in issue, 

1271 
and Walter Deason the MSHA investigator who conducted the investigation at issue. I find these 

assertions inadequate to establish legal prejudice. Williams died 2 months after the citations 

were issued and thus in all likelihood would not have been available to testify at a hearing. 

Deason, as the MSHA investigator, would, in all likelihood, have been a witness for the 

Secretary as part of its prima facie case. Hence, his death would appear to be a detriment to the 

Secretary and not to Respondents. 

Accordingly, for all the above reasons, I find that Respondents have failed to establish 

that dismissal of these proceedings is appropriate. Accordingly, Respondents motion to dismiss 

is DENIED. 

ORDER 

It is ORDERED that Respondents Motion to Dismiss Because of Unreasonable Delay by 

the Secretary is DENIED. 

A~;~isberger '4---\ L.--

Administrative Law Judge 

Distribution: 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Suite 400, Arlington, VA 22203 (Certified Mail) 

R. Henry Moore, Esq., Buchanan Ingersoll Professional Corporation, One Oxford Centre, 

301 Grant Street, 20th Floor, Pittsburgh, PA 15219 (Certified Mail) 

dcp 

1272 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, Suite 1000 

GREGORY BENNETT, 

Complainant 

v. 

NEWMONT GOLD COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

NOV 10 1998 

DISCRIMINATION PROCEEDING 

Docket No. WEST 98-115-D 

WEMD 97-21 

Twin Creeks Mine 

Mine ID 26-01942 

ORDER 

By motions dated October 7 and 16, 1998, and November 9, 1998, Gregory Bennett 

seeks: 1) citing Commission Rule 80, that I take disciplinary action against Newmont Gold 

employees Blas Duran, Cindy Jones, Chris Conley, Richard Tucker and David Stacy, for alleged 

false testimony during the hearing on his discrimination complaint, and 2) citing Commission 

Rule 81, that I withdraw from his case, because I am biased and have denied him the right to 

fully present his case. 

Noting one occasion that I addressed the perjury concerns, on August 11, 1998, my 

secretary, Maggie Herrera, read my handwritten message to Mr. Bennett that he should reference 

untruthful and contradictory testimony from the transcript in his post-hearing memorandum, and 

that I make rulings on the credibility of witnesses. Discipline of Newmont Gold's employees is 

simply not authorized under Commission Rule 80, nor is it within the purview of my authority 

under any other Commission Rule. 

Respecting Mr. Bennett's motion that I withdraw from his case, I have carefully 

considered all the reasons advanced in support of his request and conclude that they are without 

foundation. 

WHEREFORE, Gregory Bennett's motions for discipline of Newmont Gold employees 

and my withdrawal from his case are DENIED. 

~-~~ Administrative Law Judge 

1273 
Distribution: · 

Mr. Gregory Bennett, P.0.Box 61, Golconda, NV 89414 (Certified Mail) 

David J. Farber, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W., Washington, DC 20037 

(w/attachments: 1017 /98, 10/16/98 and 11/9/98 motions of Gregory Bennett) (Certified Mail) 

\mh 

1274